Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIC438796, RIC438798, RIC438799, RIC438800. Erik Michael Kaiser, Judge.
Gangloff, Gangloff & Pool and Robert A. Pool for Plaintiffs and Appellants.
Joe S. Rank, County Counsel, Ash Mozano and Anna W. Wang, Deputy County Counsel, for Defendant and Respondent and for Real Party in Interest and Respondent.
OPINION
McKinster, J.
This appeal follows the denial of multiple consolidated petitions for writs of mandate seeking an order directing the Riverside County Tax Collector to issue notices of overpayment of property taxes for the 1994-1995 tax year. As we explain, the writ petitions were properly denied.
BACKGROUND AND SUMMARY OF ISSUES
Plaintiffs, owners of real properties in Riverside County, brought petitions for writs of mandate to compel the Riverside County Tax Collector to issue notices, pursuant to Revenue and Taxation Code section 2635, stating that they had overpaid their property taxes for the 1994-1995 tax year. The writ petitions followed previous consolidated lawsuits by the same taxpayers, and other individuals not included in the present suit, in which the taxpayers asserted that they were entitled to reduced assessments for tax year 1994-1995 and hence to refunds of overpaid taxes for tax years 1995-1996 and 1996-1997. Plaintiffs conceded in that case that they had presented untimely refund claims for 1994-1995 and that those refund claims were time-barred by the four-year statute of limitations provided for in section 5097, subdivision (a)(2). Accordingly, their lawsuits did not seek refunds for that year. (Svendsen v. County of Riverside (Jan. 17, 2003, E031569) [nonpub. opn.] [at p. 7] (hereafter Svendsen).) We determined that the plaintiffs were entitled to the reduced assessment for 1994-1995 and that, pursuant to section 1604, subdivision (d), they were entitled to a reduced assessment for the two subsequent tax years as well. We also determined that all plaintiffs were entitled to refunds for tax year 1996-1997, and that two plaintiffs were entitled to refunds for 1995-1996 as well. (Svendsen, supra, [at pp. 3-6, 7-8, 10].)
Revenue and Taxation Code section 2635 provides, “When the amount of taxes paid exceeds the amount due by more than ten dollars ($10), the tax collector shall send notice of the overpayment to the taxpayer. The notice shall be mailed to the taxpayer’s last known address and shall state the amount of overpayment and that a refund claim may be filed pursuant to Chapter 5 (commencing with Section 5096) of Part 9.”
Section 5097 provides, as pertinent, “(a) No order for a refund under this article shall be made, except on a claim: [¶] . . . [¶] (2) Filed within four years after making of the payment sought to be refunded or within one year after the mailing of notice as prescribed in Section 2635, or the period agreed to as provided in Section 532.1, whichever is later.”
We have taken judicial notice of the record in Svendsen.
After issuance of the remittitur in Svendsen, judgments were entered ordering the reduction of plaintiffs’ assessments. The reduced assessments were enrolled on the county tax rolls. Plaintiffs then sought to have the Riverside County Tax Collector issue notices pursuant to section 2635, stating the amount of the overpayments. The tax collector issued section 2635 notices concerning 1995-1996 and 1996-1997 but refused to issue notices concerning 1994-1995.
Plaintiffs filed their writ petitions, contending that our ruling in Svendsen that they were entitled to a reduced assessment for 1994-1995 resulted in an overpayment of property taxes for that year in excess of $10. Therefore, they contended, the tax collector had a ministerial duty to issue the section 2635 notices. They contended that if the tax collector had done so, they would have had one year from the date of the notice to file refund claims for the 1994-1995 tax year. (§ 5097, subd. (a)(2) [one-year provision].) The superior court denied the writ petitions, holding that our ruling that the refund claims for 1994-1995 were time-barred operated, under res judicata, to preclude the claim plaintiffs seek to raise in this case.
Plaintiffs contend that their current claim is not res judicata for several reasons. Based on Bunker v. County of Orange (2002) 103 Cal.App.4th 542 (Bunker), and Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769 (Geneva Towers), they contend that the statute of limitations on their refund claims for 1994 was tolled until they deemed their refund claims for that year rejected or until the section 2635 notices issued. They contend that whether the 1994-1995 refund claims were time-barred was not before us in Svendsen because they had made no claim for refunds for that year in that case. Finally, they contend that because their current claim—that the tax collector must issue a notice of overpayment for 1994-1995—arose only as a result of our decision in Svendsen, their current claim involves a cause of action which did not exist at the time Svendsen was decided.
LEGAL ANALYSIS
THE WRIT PETITIONS WERE PROPERLY DENIED BECAUSE ISSUANCE OF THE WRITS WOULD NOT BENEFIT PLAINTIFFS
Standard Of Review
Where the facts are undisputed, an appellate court reviews an order granting or denying a petition for writ of mandate de novo, as a question of law. (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) The ultimate legal question here is whether plaintiffs have met their burden of demonstrating that they would suffer irreparable harm unless we order the tax collector to issue notices of overpayment for 1994-1995, or that they would derive any benefit from our doing so. (City of Half Moon Bay v. Superior Court (2003) 106 Cal.App.4th 795, 803; Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707-708.)
Res Judicata Precludes Beneficial Relief
Res judicata, or claim preclusion, prevents relitigation in a second suit between the same parties or parties in privity with them of a cause of action, or primary right, which was adjudicated in prior litigation. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.) Plaintiffs assert that their current claim is not barred because they are asserting a different primary right than that asserted in Svendsen.
The primary right doctrine provides that a judgment is a bar to a subsequent action based on the “‘same injury to the same right . . . .’ [Citations.]” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) “[T]he primary right is simply the plaintiff’s right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: ‘Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.’ [Citation.] The primary right must also be distinguished from the remedy sought: ‘The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.’ [Citation.]” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.)
Here, plaintiffs are not seeking relief stemming from a violation of the same primary right they asserted in the first lawsuit. In Svendsen, “Plaintiffs argue[d] that they [were] entitled to refunds [for 1995-1996 and 1996-1997] because the Riverside County Assessment Appeals Board . . . violated Revenue and Taxation Code section 1604 [fn. omitted] by taking longer than two years to issue a final determination on their applications to reduce their property value assessments for tax year 1994-1995.” (Svendsen, supra, E031569, [at p. 2].) In the current litigation, plaintiffs assert a right to have the tax collector issue notices of overpayment for tax year 1994-1995 based on our ruling in Svendsen, on the theory that issuance of the section 2635 notices will enable them to pursue their claims for refunds for that year. According to plaintiffs’ theory, their right to notices of overpayment arose only as a consequence of our determination in Svendsen that they were entitled to reduced assessments for 1994-1995, and the tax collector breached its duty to issue the notices only after the finality of that opinion. Contrary to defendant and real party’s position, this is not the same claim we decided in Svendsen. Rather, it is clearly a different primary right.
The pertinent portion of section 1604, as in effect at the time relevant to our decision in Svendsen, read as follows: “(c) If the county assessment appeals board fails to hear evidence and fails to make a final determination on the application for reduction in assessment of property within two years of the timely filing of the application, the taxpayer’s opinion of market value as reflected on the application for reduction in assessment shall be the value upon which taxes are to be levied for the tax year covered by the application . . . . [¶] . . . [¶] (d) If, pursuant to subdivision (c), the applicant’s opinion of value has been placed on the assessment roll, that value shall remain on the roll until the county board makes a final determination on the application. The value so determined by the county board, plus appropriate adjustments for the inflation factor, shall be entered on the assessment roll for the fiscal year in which the value is determined. No increased or escape taxes other than those required by a purchase, change in ownership, or new construction, or resulting from application of the inflation factor to the applicant’s opinion of value shall be levied for the tax years during which the county board failed to act.”
Plaintiffs’ claim is nevertheless barred, however, because res judicata also bars subsequent litigation of any claims which the parties had the opportunity to litigate in the prior lawsuit but did not. (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245-1246.) As long as the party has had an opportunity for a fair and full hearing of the claim asserted, “‘“fairness dictates that the controversy in question be put to rest.” . . . [Citation.]’” (Id. at p. 1245.) Whether an issue is embraced within the claim previously litigated requires a determination of the primary right asserted. (Id. at p. 1246.)
In Svendsen, the primary right asserted was plaintiffs’ right to a reduced assessment for 1994-1995 and to refunds for amounts paid which were excessive as a result of the reduction. Had plaintiffs not conceded that their refund claims for 1994-1995 were time-barred by the four-year statute of limitations provided for in section 5097, subdivision (a)(2), they could have sought refunds for that year as well, arguing, as they do now, that the statute of limitations did not begin to run until their right to a reduced assessment was determined and the tax collector issued notices of overpayment pursuant to section 2635. (Bunker, supra, 103 Cal.App.4th at p. 544.) The factual and statutory basis for that claim existed at the time: As plaintiffs recognize, Bunker, supra, 103 Cal.App.4th 542, on which they rely, did not create new law; rather, it merely interpreted laws which existed at the time plaintiffs filed their original lawsuits in Svendsen. Thus, it appears that plaintiffs simply failed to recognize that they could have pursued refund claims for 1994-1995 in Svendsen and erroneously conceded that the refund claims for 1994-1995 were time-barred. Because the refund claim for 1994-1995 is based exclusively on plaintiffs’ contention that they were entitled to a reduced assessment for that year, the refund claim for that year is clearly embraced within the primary right they asserted in Svendsen. (Weikel v. TCW Realty Fund II Holding Co., supra, 55 Cal.App.4th at p. 1246.) The issue of the timeliness of any claim for refund for that year is therefore barred by res judicata as an issue which could have been litigated in the prior lawsuit but was not. (Id. at pp. 1245-1246.) That being the case, even if the tax collector nevertheless has a ministerial duty to issue the section 2635 notices of overpayment for that year as a result of our decision in Svendsen, as plaintiffs assert, plaintiffs cannot obtain refunds on the time-barred claims. Issuance of the writs of mandate would not benefit them, and the petitions were therefore properly denied. (City of Half Moon Bay v. Superior Court, supra, 106 Cal.App.4th at p. 803; Schmier v. Supreme Court, supra, 78 Cal.App.4th at pp. 707-708.)
In Bunker, the court reversed an order sustaining a demurrer to a complaint by a group of taxpayers who sought a reduction in their property assessments pursuant to section 1604. The demurrer was sustained on the erroneous premise that it was an improper class action suit making a “class claim” for tax refunds. (Bunker, supra, 103 Cal.App.4th at p. 544.) The Court of Appeal determined that the suit did not seek refunds, but instead sought a determination that the taxpayers were entitled to reductions in their assessments because the county had improperly failed to act on their applications for the assessment reductions within the statutory time limits. (Id. at pp. 550-551.) The court went on to state that if “a section 2635 notice is never mailed, the statute of limitations on making a refund claim never runs.” (Id. at p. 554.) This statement, on which plaintiffs rely, is dictum because no issue was raised in that case as to the statute of limitations. We will assume, for purposes of this opinion, that Bunker is correct.
Geneva Towers, supra, 29 Cal.4th 769, on which plaintiffs rely to assert that their refund claim was tolled until they deemed it denied by the county, does not assist them. In Geneva Towers, the California Supreme Court interpreted section 5141, subdivision (a), which provides a six-month period to file an action in superior court for a tax refund after the county or city rejects a claim for refund. Based on the wording of the statute, the court held that the statute of limitations does not begin to run until the taxing entity expressly denies the claim or, if it does not expressly deny the claim, until the taxpayer deems it rejected and brings an action in superior court. (Geneva Towers, at pp. 771, 781-782.) Here, by conceding in their lawsuit in Svendsen that any refund claim for 1994-1995 was time-barred, plaintiffs effectively deemed their refund claim rejected by operation of law as of November 3, 2000, the date of filing the lawsuits in Svendsen. They did not bring an action seeking a refund for 1994-1995 within six months of that date.
DISPOSITION
The judgment is affirmed. Defendant and Real Party in Interest are to recover costs on appeal.
We concur: Ramirez, P.J., King, J.
All further statutory citations herein refer to the Revenue and Taxation Code unless another code is specified.