Opinion
As Modified Nov. 10, 1941.
Rehearing Denied Nov. 12, 1941.
Hearing Granted Dec. 18, 1941.
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Action by O. B. Routh against John R. Quinn, County Assessor of Los Angeles County, and others to recover damages resulting from alleged misfeasance or negligence of the assessor and his deputy. From an adverse judgment, plaintiff appeals.
Reversed, with directions. COUNSEL
Combs & Murphine, of Los Angeles, for appellant.
J. H. O’Connor, Co. Counsel, and Gordon Boller and A. Curtis Smith, Deputies Co. Counsel, all of Los Angeles, for respondents.
OPINION
MOORE, Presiding Justice.
Plaintiff sued the county assessor of Los Angeles county, his chief deputy and the surety on the assessor’s official bond to recover damages resulting from the alleged misfeasance or negligence of the assessor and his deputy. From a judgment entered in defendant’s favor, after a general demurrer to the complaint had been sustained without leave to amend, plaintiff has appealed.
The substance of the complaint is as follows: In June, 1938, the assessor and his chief deputy held a tax sale of personal property at public auction. At that sale a dehydrating plant was sold to plaintiff as the highest bidder for $250. A bill of sale conveying the dehydrator was signed in the name of the county assessor by his chief deputy. This writing was delivered to plaintiff when he took possession of the chattel. The tax for which the property was sold was the unsecured personal property tax for the year 1938-1939. While the true and correct tax due was $83.57, the assessor and his deputy negligently claimed a tax of $84.36 at the time of the sale which was $0.79 in excess of the correct legal amount due. At the sale plaintiff was ignorant of the error and of the negligence of the officials in making the computation.
One A. L. Becker had been the tax delinquent and owner of the property. After the sale he laid claim to the plant, instituted an action in the superior court for damages and recovered judgment against this plaintiff for the sum of $4,500 as the value of the dehydrator and the damage caused by the conversion on the ground that the sale was void by reason of the miscalculation and error in computing the rate and amount of the tax on the property. The judgment so obtained was satisfied by this plaintiff by the payment of $4,500 after his place of business had been subjected to attachment and execution. Defendant company was the surety on the official bond of the assessor which was conditioned upon the faithful performance of his duties.
Plaintiff demands as damages the sum of $14,500 alleged to be the total amount paid in satisfaction of the judgment he was required to pay, counsel fees and expenses of defending the Becker action, and damages for the loss of his business. Plaintiff’s request for leave to amend his complaint was denied and the judgment from which this appeal is taken was thereafter entered.
The cause of action which plaintiff has attempted to plead is based upon the theory that in the discharge of a purely ministerial duty a public officer is liable in damages to any one who is especially injured by reason of the negligence of the officer in attempting to perform his official and ministerial duty. Plaintiff does not seek to recover the purchase price paid for the dehydrator at the void tax sale. He merely demands all damages proximately resulting to himself from the negligence of the assessor and his deputy. A public officer is liable in damages to one who has proved a special injury by reason of the refusal of the official to perform a ministerial duty or by negligence in the performance of such duty. Such damages are limited only by the extent of such special injury regardless of the intentions of the officer. Doeg v. Cook, 126 Cal. 213, 58 P. 707, 77 Am.St.Rep. 171; Mock v. City of Santa Rosa, 126 Cal. 330, 58 P. 826; Ham v. County of Los Angeles, 46 Cal.App. 148, 189 P. 462; Wolfsen v. Wheeler, 130 Cal.App. 475, 19 P.2d 1004; 21 Cal.Jur. 908, sec. 88. Our concern here is not with plaintiff’s ability to prove his allegations (Katenkamp v. Union Realty Co., 6 Cal.2d 765, 59 P.2d 473), but solely with the question as to whether plaintiff’s pleading states a cause of action or whether by amendment it can be made to do so.
Section 3820 of the Political Code provides that "The assessor shall have power to collect the taxes on all property when, in his opinion, said taxes are not a lien upon real property sufficient to secure payment of the taxes. * * *" This section vests the officer with discretion in determining which movables he shall sell. Section 3821 allows him discretion in choosing his method of seizure and sale. But when he comes to the task of computing the tax the assessor has no discretion, for section 3823 reads as follows: "In the enforcement of the provisions of section 3820 of this code the assessor shall be governed, as to the amount of taxes to be collected by him on property mentioned in said section, by the state rate (if any), the county rate, the special school district, road district, and other local district rates for the locality * * *."
Thus, in the matter of computing the tax to be collected, the statute is mandatory. Since the officer’s duty is absolute, plain and certain, it is therefore purely ministerial. Doeg v. Cook, supra. No discretion is involved. The value of the property has already been determined by the assessor under his duties prescribed by section 3650. The rate of taxation is specific. § 3823. His only remaining duty is to multiply the value by the specified rate. Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462. Negligence in the performance of that duty if it results in obtaining an excessive sum vitiates the sale as well as the written instrument evidencing the conveyance.
With the foregoing requirements the facts alleged in the instant complaint generously comply. It alleges that plaintiff made the purchase and took possession. This made him guilty of wrongfully taking the property of the delinquent tax payer. He was thus, by virtue of the assessor’s negligence, cast in the role of a trespasser, a converter of his neighbor’s property. For such damages as he may have suffered as a result of the successful litigation waged against him by Mr. Becker, he is justified in seeking recovery from the assessor and his deputy whose negligence caused his loss.
Defendant vainly contends that, if the tax was excessive the error resulted from the assessor’s use, as required by law, of the tax rate of the previous year which had been erroneously computed by the county auditor. Thereby defendants ignore a fundamental rule of pleading, to-wit, that a demurrer reaches only matters appearing on the face of the pleadings to which it is directed. Fassett v. Nascimiento, 108 Cal.App. 14, 291 P. 269; Code Civ.Proc., § 430. The pleading does not even suggest the theory of recovery on account of the auditor’s negligence in determining the tax rate of the previous year. The complaint alleges: "that said defendants negligently, carelessly and wrongfully claimed a tax of $84.36 at the time and place of said sale, being an amount of $0.79 in excess of the correct amount of tax according to law on said property; that said excessive sum was claimed by virtue of an error carelessly and negligently made by defendants * * * in the computation of said tax; that said defendants negligently computed said tax in that they failed to carry the same out to the correct number of decimal places in the computation thereof. * * * The County Assessor having miscalculated and made an error in computing the rate and amount of the tax and negligently and wrongfully computed the same and that an excessive and illegal tax rate had been charged said A. L. Becker in connection therewith * * * in that they made a mathematical error in the computation of said tax and failed to make the correct computation thereof."
To sustain the contention that such allegations must be construed as charging only negligence on the part of the auditor in the computation of the tax rate for the previous year would require us to assume facts not appearing on the face of the complaint. By construing the complaint liberally, as indeed we must, when its sufficiency is brought in question by demurrer (§ 452, Code Civ.Proc.; Penziner v. West American Finance Co., 133 Cal.App. 578, 24 P.2d 501), it appears to charge only the defendants with having negligently computed the amount of taxes due. If it be true that the error which vitiated the sale of the dehydrator was not caused by the negligence of defendant but rather by the negligence of the auditor, such fact is a matter of defense to be alleged and proved by defendants on the trial. But for the purpose of further proceedings, the complaint states a cause of action against the assessor and his chief deputy for the recovery of damages resulting from the negligent performance of a ministerial duty by such defendants.
It follows from this conclusion that a cause of action is likewise stated against the surety on the assessor’s official bond, which is conditioned upon the faithful performance of his duties. Such bond is "for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity; * * * and any person so injured or aggrieved may bring suit on such bond in his own name. * * *" Pol. Code, § 961.
Respondents contend that the buyer at a tax sale is subject to the rule of caveat emptor and therefore is not entitled to damages because of his failure to obtain a valid title to the movable property acquired by his purchase at such sale. But this is an action sounding solely in negligence. It is, for that reason, unnecessary to determine the rights of plaintiff in an action to recover damages for a breach of warranty.
The judgment is reversed with directions to the trial court to overrule the demurrer and permit the defendants to answer if they be so advised.
WOOD and McCOMB, JJ., concurred.