Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 160010
ROBIE, J.
Plaintiff Douglas G. Hufnagel sued his bank for damages after it complied with an Internal Revenue Service (IRS) notice of levy on his bank accounts, on the grounds it unlawfully complied with the levy and unlawfully turned over funds from his bank accounts to the IRS.
Defendants North Valley Bank and various bank employees (collectively the bank) successfully demurred to the complaint, on the ground that they are immune from such liability (26 U.S.C. § 6332). Plaintiff brings this pro se judgment roll appeal from the subsequent dismissal of his complaint. Because he has failed to show error, we shall affirm.
PROCEDURAL BACKGROUND
Plaintiff’s complaint alleges as follows: At the time of these events, plaintiff maintained at least four accounts with the bank: three accounts in his own name (including savings and checking) and one account in the name of DH Enterprises.
On or about March 13, 2007, the bank notified plaintiff by four separate letters that it had received a notice of levy in the amount of $47,180.57 from the IRS and that “[in] accordance with the law, we must comply with this process by April 2, 2007 unless we have received a restraining order issued by a court of competent authority.” The letters also informed plaintiff that, in compliance with the IRS levy, it had withdrawn from his accounts a total of $24,279.01.
Plaintiff immediately appeared at the bank and objected, demanding to see a court order, writ of attachment, or other “lawful documentation” justifying the bank’s withdrawal of funds from his account. He told bank personnel that the levy was invalid, and he presented to the bank “sworn testimony” that he owed the IRS no debt.
Having received no satisfaction, plaintiff filed a verified complaint for damages against the bank and various bank officers on theories of breach of contract, conversion, embezzlement, and extortion.
He alleged that the bank should not have removed funds from his account after receiving a “mere” notice of levy from the IRS. In plaintiff’s view, the bank breached its contractual and fiduciary duties to protect his accounts from levy by the IRS until it first gave him “a meaningful hearing considering [his] objections” to the levy; “jointly consulted” with him and the bank’s legal department; and provided him with “lawful process.”
The bank demurred to the complaint. It argued that plaintiff cannot state a claim for relief because the bank is immune from liability for lawful compliance with an IRS notice of levy by virtue of Title 26 United States Code sections 6331 and 6332 (section 6331 and 6332).
As relevant to this appeal, section 6331 (“Levy and distraint”) states:
Plaintiff opposed the demurrer and denied that the bank is entitled to immunity under sections 6331 and 6332. To the contrary, he argued, when section 6332 is read together with section 6331, subdivision (a), it effectively prevents the IRS from levying on his accounts with the bank because the bank is not his employer. Plaintiff also moved to strike the demurrer.
Following a hearing (the transcript of which is not in the appellate record), the trial court sustained the demurrer with leave to amend, on the ground that “[t]he face of plaintiff’s complaint reveals that the gravamen of the action is defendants’ allegedly wrongful compliance with a notice of levy from the Internal Revenue Service. Defendants are immune from liability for such actions pursuant to 26 U.S.C. 6332(e).” The court denied plaintiff’s motion to strike.
When plaintiff failed to amend his complaint within the allocated time, the bank moved for an order dismissing the complaint, and the complaint was dismissed without prejudice.
Plaintiff appeals.
DISCUSSION
I
Standard Of Review
Since plaintiff elected not to amend his complaint, we presume it states as strong a case as is possible. (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994.) A general demurrer challenges only the legal sufficiency of a complaint, not the truth or the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations. (Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-535.) In reviewing the sufficiency of a final complaint against a general demurrer, we must determine whether the complaint states a cause of action; we must assume the facts alleged in the complaint are true, and we may also consider matters that may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628.)
In addition, on appeal, we must presume that the trial court’s judgment or order is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant has the burden of showing reversible error and in the absence of such a showing, the judgment or order will be affirmed. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) He or she must present an analysis of the facts and legal authority on each point made and must also support arguments with appropriate citations to the material facts in the record. Any issues not fully or properly briefed are forfeited and we do not consider them. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Plaintiff is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the “same ‘restrictive procedural rules as an attorney’”].)
Because plaintiff has provided us with only a clerk’s transcript -- and no transcript of the hearing on the bank’s demurrer to the complaint -- we must treat this as an appeal “on the judgment roll,” to which the following rules apply: “‘Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation].’” (Ford v. State of California (1981) 116 Cal.App.3d 507, 514, overruled on other grounds in Duran v. Duran (1983) 150 Cal.App.3d 176, 177-179; Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Cal. Rules of Court, rule 8.163.)
II
Plaintiff Has Not Shown The Trial Court Erred
On appeal, plaintiff’s sole contention is that he “was denied due process of law when [the trial judge] only considered portions of the statutes presented by [plaintiff] in opposition to the demurrer” and that the judge’s “refusal to consider the statutes in their entirety, as presented by [plaintiff]” was prejudicial and contrary to law.
As we explained above, our review in a judgment roll appeal is limited to error that appears on the face of the record. And this record does not support plaintiff’s claim that the trial court refused to consider the statutory authority presented by plaintiff. To the contrary, in its order granting the bank’s demurrer, the trial court states it “read and considered the supporting and opposing points and authorities” prior to ruling on the demurrer. (Italics added.) Moreover, we presume on appeal that official duties have been regularly performed (Evid. Code, § 664) and this presumption extends to the actions of trial judges (People v. Duran (2002) 97 Cal.App.4th 1448, 1461; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 8-9 [“If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done”]). Consequently, we presume -- contrary to plaintiff’s argument on appeal -- that the trial court properly considered all of the statutory authority cited by both parties in reaching its decision to sustain the demurrer.
To the extent plaintiff’s opening brief on appeal may be read to suggest that the trial court erred as a matter of law in concluding that the bank was entitled to immunity under the applicable statutes, he has forfeited that argument by failing to provide any citation to the record or to any authority in support of such an argument. (See Alameida v. State Personnel Bd., supra, 120 Cal.App.4th at p. 59.)
The argument would fail in any event since section 6332, subsection (e) provides that “Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property . . . shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.”
DISPOSITION
The judgment is affirmed. North Valley Bank shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: SCOTLAND, P.J., SIMS, J.
“(a) Authority of Secretary. If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. Levy may be made upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official. . . .
“(b) Seizure and sale of property. The term ‘levy’ as used in this title includes the power of distraint and seizure by any means. Except as otherwise provided in subsection (e), a levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Secretary may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible).
“[¶] . . . [¶]
“(d) Requirement of notice before levy.
“(1) In general. Levy may be made under subsection (a) upon the salary or wages or other property of any person with respect to any unpaid tax only after the Secretary has notified such person in writing of his intention to make such levy.
“(2) 30-day requirement. The notice required under paragraph (1) shall be
“(A) given in person,
“(B) left at the dwelling or usual place of business of such person, or
“(C) sent by certified or registered mail to such person’s last known address, no less than 30 days before the day of the levy.
“(3) Jeopardy. Paragraph (1) shall not apply to a levy if the Secretary has made a finding under the last sentence of subsection (a) that the collection of tax is in jeopardy.
“(4) Information included with notice. The notice required under paragraph (1) shall include a brief statement which sets forth in simple and nontechnical terms
“(A) the provisions of this title relating to levy and sale of property,
“(B) the procedures applicable to the levy and sale of property under this title,
“(C) the administrative appeals available to the taxpayer with respect to such levy and sale and the procedures relating to such appeals,
“(D) the alternatives available to taxpayers which could prevent levy on the property (including installment agreements under section 6159,
“(E) the provisions of this title relating to redemption of property and release of liens on property, and
“(F) the procedures applicable to the redemption of property and the release of a lien on property under this title.”
For its part, section 6332 (“Surrender of property subject to levy”) states:
“(a) Requirement. Except as otherwise provided in this section, any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary, surrender such property or rights (or discharge such obligation) to the Secretary, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.
“[¶] . . . [¶]
“(c) Special rule for banks. Any bank (as defined in section 408(n)) shall surrender (subject to an attachment or execution under judicial process) any deposits (including interest thereon) in such bank only after 21 days after service of levy.
“(d) Enforcement of levy.
“[¶] . . . [¶]
“(e) Effect of honoring levy. Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.
“(f) Person defined. The term ‘person,’ as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.” (Italics added.)