Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. CV02-88444
THE COURT:The opinion filed on November 13, 2007, is modified as follows:
On page 8, add the following text immediately preceding the heading “Disposition”:
“C. Slater Cannot Amend Her Complaint to State a Claim For Inverse Condemnation.
Slater argues that she should have been permitted to amend her complaint against the state tax and county defendants. She asserts that the superior court abused its discretion by refusing her the opportunity to amend her complaint to state a claim for “inverse condemnation.” We disagree because Slater simply cannot state any claim for inverse condemnation based on the seizure and sale of Bushnell’s property.
“ ‘An inverse condemnation action is an eminent domain proceeding initiated by the property owner rather than the condemner.’ ” (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 377, fn. 4.) As the name of the action implies, a party may seek recovery for an inverse condemnation “when the state or other public entity improperly has taken private property for public use without following the requisite condemnation procedures – as when the state, in constructing a public project, occupies land that it has not taken by eminent domain, or when the state takes other action that effectively circumvents the constitutional requirement that just compensation be paid before private property is taken for public use.” (Id. at p. 377, fn. omitted.) But the constitutional obligation to pay just compensation has never been interpreted to require compensation “whenever a governmental employee commits an act that causes loss of private property.” (Id. at p. 378, italics added.) Instead, the principle of just compensation “ ‘has always been understood paradigmatically to express the state’s obligation to indemnify owners of property taken through an assertion of eminent domain.’ ” (Id. at p. 379, quoting Rubenfeld, Usings (1993) 102 Yale L.J. 1077, 1081-1082, italics added.)
The flaw in Slater’s argument is that the seizure and sale of property for delinquent taxes is not an exercise of the power of eminent domain and thus cannot support a claim for inverse condemnation. “People must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property.” (Jones v. Flowers (2006) 547 U.S. 220, 234.) In this case, neither the FTB nor the County used the state’s eminent domain power to take Bushnell’s land for a public use. “Rather than taking private property for a public purpose, [California] is here collecting taxes which are admittedly overdue.” (Balthazar v. Mari Ltd. (N.D.Ill.) 301 F.Supp. 103, 105, fn. 6 (three-judge court), affd. (1969) 396 U.S. 114.) The analogy to takings jurisprudence is therefore inapposite. (Ibid.) We therefore conclude that Slater cannot amend her complaint to state an inverse condemnation claim.”
Appellant’s petition for rehearing is denied.
This modification does not effect a change in the judgment.