Opinion
D069834
09-22-2017
DANA K. FERRELL, Plaintiff and Appellant, v. CALIFORNIA STATE BOARD OF EQUALIZATION; and COUNTY OF SAN DIEGO, Defendants and Respondents.
Fred R. Chesley, for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Diane S. Shaw, Assistant Attorney General, Lisa W. Chao, and Suman R. Mathews, Deputy Attorneys General, for Defendant and Respondent, California State Board of Equalization. Thomas E. Montgomery, County Counsel, Walter J. De Lorrell III, Senior Deputy County Counsel, for Defendant and Respondent, County of San Diego.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00018368-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Fred R. Chesley, for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Diane S. Shaw, Assistant Attorney General, Lisa W. Chao, and Suman R. Mathews, Deputy Attorneys General, for Defendant and Respondent, California State Board of Equalization. Thomas E. Montgomery, County Counsel, Walter J. De Lorrell III, Senior Deputy County Counsel, for Defendant and Respondent, County of San Diego.
Dana K. Ferrell appeals from a judgment dismissing his petition for a writ of mandamus against the County of San Diego (the County) and the California State Board of Equalization (the Board). The petition asked the court to compel the County to update its tax rolls and provide certain information and refund warrants related to property taxes on two parcels of land Ferrell owns, and to compel the Board to intervene on Ferrells behalf against the County. Ferrell asserts the superior court erred by sustaining the Boards demurrer without leave to amend after determining the Board did not have an obligation to intervene pursuant to Government Code section 15606, and by concluding there were no valid grounds upon which to issue a writ against the County. We conclude the court correctly granted the demurrer as to the Board and correctly denied the writ petition as to the County, and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ferrell owns two adjacent pieces of property in San Diego County—Parcel 1 and Parcel 2. In 1997, Ferrell obtained grading permits and began placing fill dirt on both of the parcels to bring them above the flood plain. By 2009, he had added 106,600 cubic yards of fill dirt to Parcel 1 and 255,000 cubic yards of fill dirt to Parcel 2. At this time, both parcels were zoned for agricultural use but Ferrell had also obtained a conditional use permit for Parcel 1 and was leasing it to a "green waste" recycling facility for $10,000 per month.
2009 Tax Bills
On June 30, 2009, the County assessors office notified Ferrell it had reassessed the value of the parcels based on the addition of fill dirt, which it characterized as unfinished new construction. The assessor appraised Parcel 1 at $687,819 and Parcel 2 at $1,029,681, an increase of approximately $450,000 in taxable value for each parcel.
Soon after receiving the notices, Ferrell filed an application for reduction of assessment and an associated request for refund with respect to the 2009 tax bill for each of the two parcels with the Assessment Appeals Board (the AAB), and asserted the 2009 assessed values far exceeded the actual market value of the parcels. The assessor supported the appraised value with recent sales of comparable commercial properties ("commercial comps") but Ferrell argued the assessor was not legally entitled to use commercial comps because the parcels were not zoned for commercial use. The AAB pointed out that Ferrell was leasing Parcel 1 as a commercial property for $10,000 per month and that a 2009 audit revealed contractors were using Parcel 2 for the storage of heavy construction equipment, and thus determined the commercial comps were appropriate because the minor use permit allowed Ferrell to use the parcels as commercial properties. Based on these findings, the AAB denied Ferrells applications.
In June 2011, Ferrell timely filed a complaint in the superior court seeking a trial de novo with respect to the AABs decision regarding the 2009 tax assessment. In September 2012, the superior court upheld the decision of the AAB and, shortly thereafter, Ferrell appealed the superior courts judgment to the Court of Appeal (Ferrell 1).
On appeal in Ferrell 1, Ferrell did not challenge the assessment of Parcel 1 and raised only a single issue regarding the assessment of Parcel 2, asserting the assessors valuation analysis was flawed because the assessor improperly used commercial comps in arriving at the fair market value of Parcel 2. Although the assessor had previously supported the valuation by asserting the minor use permit allowed operation of the green waste facility on Parcel 2, by the time of the appeal the County conceded the minor use permit applied only to Parcel 1 and did not permit operation of the green waste recycling facility on Parcel 2. Based primarily on this concession, this court determined there was no legally permissible basis for the assessor to rely on commercial comps in assessing the value of Parcel 2. Therefore, we reversed the judgment "with directions to the trial court to remand the matter to the [AAB] for further proceedings consistent with [the appellate] opinion." Ferrell also argued he was entitled to attorneys fees pursuant to Government Code section 800, but we found there was no basis for an award of such fees because the AABs decision was not the result of arbitrary or capricious conduct by the assessor.
On remand from our decision in Ferrell 1, Ferrell renewed his request for attorneys fees in the superior court. The court held a hearing in October 2014 and, at the conclusion of the hearing, counsel for the County clarified the remand to the AAB was limited to the valuation of Parcel 2 and Ferrells counsel agreed, stating "Its understood". Accordingly, the court remanded the matter to the AAB only with respect to Parcel 2, entered partial judgment confirming the assessment for Parcel 1, and the AAB removed the application regarding Parcel 1 from its hearing calendar. However, by January 2015, Ferrell reversed course and asserted the AAB could not remove the application as to Parcel 1 because the determination in Ferrell 1 that the assessor could not use commercial comps for an agriculturally zoned parcel applied to Parcel 1 as well as Parcel 2. The AAB rendered findings and conclusions upon remand in April 2015, confirming only the valuation of Parcel 2 was at issue on remand and reducing the 2009 assessed value of Parcel 2 to $550,000.
We grant the Countys unopposed motion for judicial notice of the Reporters Transcript of Proceedings for Friday, October 24, 2014, in Superior Court Case No. 37-2011-00068636-CU-MC-EC. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Post-2009 Tax Bills
In the interim, the assessor issued notices of assessment and tax bills for Parcels 1 and 2 for subsequent tax years using valuations similar to the 2009 tax year, and Ferrell filed applications for reductions and refunds for both parcels for at least the 2010, 2011, 2013 and 2015 tax years. In December 2014, the AAB denied the 2010 and 2011 petitions as to Parcel 1, but the assessor recommended a reduced valuation for Parcel 2 based on clarification the minor use permit applied only to Parcel 1, and the AAB issued a revised valuation of $500,000 for Parcel 2. The County updated the tax rolls to reflect the modified valuations for Parcel 2 and issued refunds to Ferrell for his overpayment of property taxes for the 2010 and 2011 tax years.
The 2013 and 2015 applications for reductions and refunds remained pending as of the date of the appealed-from judgment.
Demands to the Board and the County
On March 26, 2015, shortly before the AAB issued its ruling on remand with respect to the 2009 valuations, Ferrell filed a claim against the County asserting his grievances over the tax bills and a right to recover, and on March 30, 2015, the County sent Ferrell a letter rejecting his claims. Thereafter, on April 3, 2015, Ferrell served a demand letter on the Board, asking the Board to intervene on his behalf pursuant to Government Code section 15606. The Board refused to intervene but did offer a non-binding opinion letter regarding Ferrells claims against the County.
Petition for Writ of Mandamus
In June 2015, Ferrell filed a petition for writ of mandate in the superior court. The petition asked the court to direct the County to refund Ferrell $78,658.45 for property taxes paid based on allegedly unlawfully inflated valuations, and to remove the 2009 reassessments for both parcels from the tax rolls or, in the alternative, to re-evaluate the assessment for Parcel 1 using agriculturally zoned comparable sales and update the tax roll with that value or update the tax rolls with Ferrells 2009 owners opinion of value for both parcels. It also asked the court to direct the Board to file an action in the superior court to compel the County to do the same. Shortly thereafter, on July 22, 2015, the County updated the tax roll to reflect the reassessed value of $550,000 for Parcel 2 for the January 1, 2009 lien date. The County and the Board each filed demurrers to the writ petition, and the court granted the Boards demurrer without leave to amend, concluding the Board had no obligation to intervene on Ferrells behalf. With respect to the Countys demurrer, the court noted Ferrell had previously litigated the claims relating to the 2009 property taxes to final judgment but that at least one other cause of action was confusing as drafted, and thus sustained the demurrer but gave Ferrell leave to amend.
In September, Ferrell filed an amended writ petition against the County, removing all assertions regarding the 2009 valuations and the commercial comps issue as to Parcel 1. The amended petition asked the court to direct the County to: (1) provide written notice of the assessed values of both parcels for 2009 and each year thereafter; (2) update the tax roll to reflect the AABs determination of the value of Parcel 2 for the 2009 tax year; (3) provide written notice of the right to a refund for taxes paid on Parcel 2 for tax years 2009 to present; (4) provide a number of items of information showing the basis for existing and future refunds; (5) issue a replacement for a prior refund that was addressed to the wrong company name; (6) issue refund warrants for tax years 2012, 2013, 2014, and 2015 for excess taxes paid on Parcel 2; (7) pay Ferrells costs of suit; and (8) pay Ferrells attorneys fees.
After briefing and a hearing on the merits, the court found no writ of mandate was available because any issues related to the 2009 tax bills had been litigated in the prior action, Ferrell had an adequate remedy at law through the AAB appeals process to address any issues with the post-2009 property tax bills, and Revenue and Tax Code section 4807 barred any mandate request to enjoin the collection of property taxes. The court went on to address additional arguments Ferrell raised in his briefing and found Revenue and Tax Code section 1604, subdivision (c), did not apply to require the County to enroll Ferrells 2009 owner opinion of value; the County had properly updated the tax rolls for 2009; and Ferrell was not entitled to a notice of right to refund containing the information requested in the writ. Therefore, the court denied the amended petition and, as Ferrell was not the prevailing party, the court also denied his request for attorneys fees and costs.
We grant the Countys unopposed motion to augment the record, filed concurrently with the respondents brief. (See Cal. Rules of Court, rule 8.155(a).) Ferrell asserted in his opening brief the courts ruling amounted to a judgment on the pleadings but the documents attached to the motion to augment indicate Ferrell filed an ex parte motion for an order to show cause and the court set a motion hearing for December 11, 2015. The superior court filed the minute order denying the petition for mandate after the December 11 hearing. Ferrell does not dispute the Countys characterization of the ruling in his reply.
Ferrell appeals.
DISCUSSION
I. The Court Did Not Err in Sustaining the Boards Demurrer
We first address Ferrells assertion the superior court erred in determining the Board did not have a legal duty to file a suit against the County pursuant to Government Code section 15606 and thus in sustaining the Boards demurrer without leave to amend.
We review the order sustaining the demurrer under a de novo standard of review. (See Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 277-278.) We interpret the allegations in the petition liberally, deem all material facts to be true as pled, and determine whether the facts as alleged in the petition state a cause of action against the Board under any possible legal theory. (Ibid.)
Government Code section 15606 states, "The State Board of Equalization shall do all of the following: . . . (h) Bring an action in a court of competent jurisdiction to compel an assessor or any city or county tax official to comply with any provision of law, or any rule or regulation of the board . . . governing the assessment or taxation of property. The Attorney General shall represent the board in the action." The statute concludes with the proclamation "[t]his section is mandatory." (Gov. Code, § 15606.)
Ferrell asserts the statute required the Board to bring an enforcement action against the County in response to his demand, relying on the word "shall" and the statement "[t]his section is mandatory". However, the Board has discretion in carrying out its powers and duties pursuant to Government Code section 15606, and that includes discretion to decide when to bring an enforcement action against a county tax official. (See Hahn v. State Bd. of Equalization (1999) 73 Cal.App.4th 985, 997 [Legislatures delegation of discretionary power to the Board to enforce property tax laws was proper]; Prudential Ins. Co. v. City and County of San Francisco (1987) 191 Cal.App.3d 1142, 1151-1153 [Gov. Code, § 15606 authorizes the Board to oversee the operation and function of local boards of equalization and to bring an action to compel compliance with property tax laws, rules and regulations (emphasis added)].) Ferrell has presented no authority, either in the superior court or in his briefing on appeal, indicating the language in Government Code section 15606 eliminates the Boards discretion in this regard.
Ferrell does not allege the Boards decision not to exercise its discretion by bringing an enforcement action in this manner was arbitrary, capricious, lacking in evidentiary support, unlawful, or procedurally unfair (see Pomona Police Officers Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584 (Pomona)), but instead relies solely on his assertion the Board had a mandatory duty to act under the statute.
Ferrell attempts to distinguish Prudential, and other cases cited by the Board, by arguing the discussion therein relates to subsections of Government Code section 15606 other than subsection (h). However, the "shall" and "[t]his section is mandatory" language Ferrell relies on appear at the beginning and end of the statute and a plain reading indicates they apply equally to all subsections included therein. (Govt. Code, § 15606.) Thus, if the Board has discretion to carry out the powers or duties described in any of the subsections of the statute, it has the same discretion with respect to subsection (h).
Moreover, reading the statute as Ferrell suggests would lead to an absurd result. Without any discretion, the pursuit of frivolous actions at the request of disgruntled citizens would quickly consume the entirety of the Boards resources, rendering the statute effectively useless. Accordingly, accepting Ferrells interpretation would violate one of the basic principles of statutory interpretation. (See Doe v. Brown (2009) 177 Cal.App.4th 408, 417 [well-established rules of statutory interpretation require avoidance of an interpretation that would lead to absurd consequences].)
We conclude the Board did not have a mandatory duty pursuant to Government Code section 15606 to initiate litigation against the County, the writ petition therefore did not state facts sufficient to state a cause of action against the Board, and the superior court did not err when it sustained the demurrer without leave to amend. II. The Court Did Not Err in Dismissing the Petition Against the County
We turn next to the amended writ petition against the County. Ferrell asserts the superior court erred in dismissing the petition without addressing the merits of his arguments and, in response, the County asserts the superior court correctly concluded a writ was not available to address Ferrells asserted grievances.
A. Applicable Legal Principles and Standard of Review
Pursuant to Code of Civil Procedure section 1085, the superior court may issue a writ of mandate to compel a public entity to perform a legal, and usually ministerial, duty. (Pomona, supra, 58 Cal.App.4th at pp. 583-584.) Generally, such a writ is available only where the respondent has a duty to perform, the petitioner has a right to or beneficial interest in the performance of that duty, and the petitioner does not otherwise have a plain, speedy, and adequate remedy at law. (Id., at p. 584; Code Civ. Proc., §§ 1085, 1086.)
Judicial review of an administrative action or decision pursuant to a petition for a writ of mandate is limited to a determination of whether the public entitys action or decision was arbitrary, capricious, lacking in evidentiary support, unlawful, or procedurally unfair. (Pomona, supra, 58 Cal.App.4th at p. 584; Khan v. Los Angeles City Employees Retirement System (2010) 187 Cal.App.4th 98, 105-106 (Khan).) When reviewing a decision of the superior court on the merits of a writ petition, the appellate court performs essentially the same function as the trial court. (Khan, supra, at pp. 105-106.) We do not undertake a review of the trial courts findings or conclusions but rather make our own determination under the same deferential standard afforded to the County in the trial court. (Ibid.) Under this standard, we affirm the decision of the superior court so long as it is legally correct regardless of the courts reasoning or considerations. (Little v. Los Angeles County Assessment Appeals Boards (2007) 155 Cal.App.4th 915, 925, fn. 6 (Little).)
Ferrell asserts we should apply the same standard of review we applied to the ruling on the Boards demurrer because the order denying the writ as to the County was effectively a judgment on the pleadings, but as explained, ante, the record indicates the court instead denied the petition after briefing and a hearing on the merits.
Where there are no disputed factual issues, we review any associated questions of statutory interpretation de novo, and do not afford deference to the interpretation of the public entity. (Khan, supra, 187 Cal.App.4th at p. 106.)
B. 2009 Tax Bills
Ferrell contends the superior court erred in refusing to address the merits of his primary arguments: (1) the 2009 assessments were improper because the fill dirt did not constitute re-assessable "new construction", and (2) the County had an obligation to reassess Parcel 1 using agricultural comps following the Court of Appeal decision in Ferrell 1. The County asserts the parties fully litigated these issues in the context of the 2009 assessments in the previous case and Ferrell waived any assertion to the contrary in the present case. We agree with the County.
There is no dispute the superior court addressed the fill dirt issue and the use of commercial comps in the valuation of Parcel 1 in the trial de novo proceedings in the previous action. Thereafter, Ferrell chose to limit his appeal to the use of commercial comps on Parcel 2 and, after the superior court entered partial judgment on Parcel 1 and the AAB issued a revised valuation for Parcel 2 on remand, Ferrell chose not to pursue any further appeals. (See Exxon Mobil Corp. v. County of Santa Barbara (2001) 92 Cal.App.4th 1347, 1351-1352 (Exxon Mobile) [orders on remand are appealable, even where the superior court retains some jurisdiction over further proceedings].) As such, the judgment in the previous litigation is final and Ferrell cannot relitigate the previous determinations made therein by filing a separate writ petition. (See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen) [principles of collateral estoppel preclude relitigation of issues argued and decided in prior proceedings].)
Moreover, in addressing the Countys demurrer to his original writ petition, Ferrell conceded he did not intend to relitigate the accuracy of the 2009 tax bills, and then amended the writ petition to remove any causes of action related to the 2009 assessments. By doing so, Ferrell waived any argument regarding the 2009 tax bills, including the fill dirt issue and the comps for Parcel 1. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966, fn. 2 [amendment of a complaint after a demurrer is sustained constitutes a waiver].)
Further, even if we were to reach the merits of these arguments with respect to the 2009 tax bill, Ferrell misrepresents the courts decision in Ferrell 1. Ferrell asserts the courts decision in Ferrell 1 prohibited the use of commercial comps for Parcel 1 as well as Parcel 2, but the opinion specifically distinguished between the two parcels based on the minor use permit applying only to Parcel 1, and thus its conclusion the use of the commercial comps was improper was limited to Parcel 2. Although the opinion does not specifically address Parcel 1—because Ferrell limited his appeal to Parcel 2—it does suggest the commercial comps may have been appropriate for Parcel 1, even if not appropriate for Parcel 2. Thus, contrary to Ferrells assertion, the assessor could have fairly determined the commercial comps remained appropriate for Parcel 1 even after reviewing the appellate decision in Ferrell 1.
C. Post-2009 Tax Bills
Ferrell asserts his petition also challenged the Countys tax assessments for the 2010 through 2015 tax years based on these same issues, and the superior court thus should have reached the merits of his contentions based on the post-2009 tax assessments. However, as the superior court correctly concluded, Ferrell had an adequate remedy at law available to challenge the post-2009 assessments.
California has established an exclusive mechanism for the review of property tax assessments. (Rev. & Tax. Code, § 5140; County of Sacramento v. Assessment Appeals Bd. No. 2 (1973) 32 Cal.App.3d 654, 671; Little, supra, 155 Cal.App.4th at pp. 922-923.) A taxpayer must first pay the allotted tax and then file a written application for changed assessment with the county assessment appeals board seeking a refund for any amount he or she believes the county charged in excess of the legally appropriate amount. (Rev. & Tax. Code, § 5140; Little, supra, at pp. 922-923.) The assessment appeals board will hold a hearing and issue a ruling on the application, and a taxpayer dissatisfied with the ruling may then bring an action in the superior court against the county to recover any amount the county has refused to refund. (Rev. & Tax. Code, § 5140; Little, supra, at p. 923.)
Here, Ferrell filed applications for reduction of assessment and associated requests for refund for at least certain post-2009 tax years, had already received some refunds in response to his 2010 and 2011 applications, and still had additional applications pending. He also could have filed applications and requests for refunds for the remaining years, and, if the County did not issue refunds for the full amount requested, he could have filed actions for trials de novo in the superior court, just as he did with respect to the 2009 assessments. Thus, Ferrell had an adequate remedy at law available to address any grievances he had with the post-2009 tax assessments, and the superior court properly concluded a writ was not available to address them. (See Pomona, supra, 58 Cal.App.4th at p. 584.)
Ferrell argues this available remedy at law was not "adequate, plain or speedy" because he had to file a request for refund for each parcel for each year, despite the County continuing to make the same mistakes. However, Ferrell offers no authority establishing the available remedy cannot consist of several different actions particularly where, as here, there are two parcels and multiple tax years at issue. The law only requires that there is an available remedy and, in this case, the legislature and the Board have established the process for such remedy. (See Rev. & Tax. Code, § 5140; Star-Kissed Foods, Inc. v. Quinn (1960) 54 Cal.2d 507, 511; Little, supra,155 CaI.App.4th at pp. 922-923.)
Ferrell also argues he did not have an "adequate, plain or speedy" remedy because the superior court and AABs determination the remand in Ferrell 1 was limited to Parcel 2 improperly limited his ability to address the use of commercial comps for Parcel 1. However, as discussed, ante, Ferrell waived any arguments regarding the proper scope of the remand in the prior proceeding and further waived any arguments regarding the propriety of the 2009 assessments in this proceeding.
D. New Issues Raised in Reply Brief
Continuing to shift positions, Ferrell raises additional arguments in his reply brief. As respondents did not have a chance to respond to these new assertions, the court need not address them. (See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [new issues raised in a reply brief ordinarily not considered]; see also Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [fairness militates against consideration of new issues raised in a reply brief].) Regardless, even if the court were to address Farrells latest assertions, they are without merit.
Ferrell asserts he is entitled to a writ to correct the tax roll because the County is continuing to overcharge him each year based on the assessors failure to update the roll to reflect 2009 as a base year with the updated valuation, but Ferrell has not met his burden to establish a writ was necessary to correct this error. (See Khan, supra, 187 Cal.App.4th at p. 106 [petitioner bears the burden of proof in a mandate proceeding].)
The record indicates the Board issued the final post-appeal valuation for the 2009 tax year in April 2015 and there was only one subsequent bill, dated June 2015, using the previously erroneous valuation. The County submitted evidence in response to the writ establishing it updated the roll shortly thereafter, in July 2015. Although Ferrell asserts the County still had not updated the roll by the time he filed his reply brief, there is no evidence in the record that is the case and, further, the County never had an opportunity to refute this newly raised assertion. Thus, while Ferrells frustration at the interim tax bills using the previous assessment is understandable, the record indicates the tax roll is now accurate. In any event, Ferrell had an adequate remedy to dispute the previous assessments and to seek refunds with interest for any overages and, as such, there was no basis for the superior court to issue a writ compelling the County to update the tax rolls. (See Little, supra, 155 Cal.App.4th at pp. 922-923 [concluding mandamus was not the appropriate mechanism to dispute an adverse decision of the assessment appeals board concerning the applicable base year value of a property].)
E. Unpaid and Future Taxes
Finally, although Ferrell does not dispute the superior courts conclusion a writ did not lie to compel the County to issue any further refunds or to provide the information Ferrell requested showing a basis for existing and future warrant refunds, we address it briefly based on the applicable standard of review.
Revenue and Taxation Code section 4807 specifically precludes the issuance of a writ to prevent or enjoin a countys collection of property taxes (Rev. & Tax Code, § 4807; Little, supra, 155 Cal.App.4th at pp. 922-923) and, as discussed infra, Ferrell had an adequate remedy at law available to pursue additional refunds for any overages he had already paid. Moreover, Ferrell has presented no legal authority requiring the County or the Board to provide the additional information he requested. As such, the superior court correctly concluded Ferrell was not entitled to a writ directing the County to provide any additional refund warrants or any additional information regarding any past or future refunds. III. Attorneys Fees
Ferrell also does not dispute the superior courts conclusion Revenue and Taxation Code section 1604, subdivision (c), did not apply to require the County to accept Ferrells 2009 owners opinion of value. We agree with the superior courts analysis in that regard as well. --------
Ferrell asserts he is entitled to attorneys fees pursuant to Revenue and Taxation Code section 5152, Code of Civil Procedure section 1021.5, and Government Code section 800. We disagree.
First, Ferrell is not entitled to fees related to the previous litigation in Ferrell 1. Ferrell sought attorneys fees on remand in Ferrell 1 and any ruling by the superior court on that motion was separately appealable. (See Exxon Mobil, supra, 92 Cal.App.4th at pp. 1351-1352.) Although the record on appeal does not include the superior courts final order on the fees motion, Ferrell does not assert the superior court failed to issue a ruling and there is no indication Ferrell filed any further appeals in that matter. As such, Ferrell cannot now collaterally attack the superior courts previous decision on fees related to Ferrell 1 through a separate mandamus action. (See Mycogen, supra, 28 Cal.4th at p. 896.)
Second, Ferrell is not a prevailing party entitled to attorneys fees in the present action. A taxpayer is entitled to attorneys fees pursuant to Revenue and Taxation Code section 5152 only where the court finds the assessor issued an assessment the assessor knew to be in violation of the California state constitution and thus, the assessor should have instead brought a declaratory action against the AAB pursuant to Revenue and Taxation Code section 538. (Ocean Avenue LLC v. County of Los Angeles (2014) 227 Cal.App.4th 344, 354.) Here, Ferrell asserts the assessor based the assessment on an inaccurate interpretation of the Constitution, but the record indicates the assessors characterization of the fill dirt was appropriate and the assessor based his improper use of commercial comps with respect to Parcel 1 on an erroneous understanding of the use permit, and not an improper interpretation of the constitution. Regardless, the superior court denied Ferrells petition and made no findings as to the constitutionality of the assessment or the assessors knowledge of the same to support a fee award in the present action.
Likewise, neither Code of Civil Procedure section 1021.5 nor Government Code section 800 provides a basis for Ferrell to recover fees in the present action. Code of Civil Procedure section 1021.5 allows for the recovery of fees to a successful party in an action resulting in the enforcement of an important right affecting the public interest but, here, Ferrell was not a successful party and there was no resulting enforcement because the superior court denied Ferrells petition. (Cf. San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 752-753 [awarding attorneys fees based on a successful writ petition].) Government Code section 800 permits the recovery of fees based on wholly arbitrary and capricious actions of a public entity and, similarly, in dismissing Ferrells writ petition, the court made no such finding in the present case. Ferrell is not entitled to attorneys fees.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
OROURKE, J.