Yogurt Time v. Office of Tax Appeals CA1/2

Filed 1/16/26 Yogurt Time v. Office of Tax Appeals CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

YOGURT TIME LLC, Plaintiff and Appellant, A172144 v. OFFICE OF TAX APPEALS et al., (San Francisco County Super. Ct. No. CPF24518653) Defendants and Respondents.

MEMORANDUM OPINION This is an appeal following the sustaining of a demurrer without leave to amend. No reply brief has been filed. We affirm. Appellant Yogurt Time LLC filed a petition and writ proceeding against the California Department of Tax and Fee Administration (the Department) and the Office of Tax Appeals (OTA) challenging a January 23, 2023 decision by the OTA in two consolidated tax appeals from decisions by the Department partially denying Yogurt Time’s petitions for redetermination of outstanding tax liabilities (see Gov. Code, § 15677). According to the petition’s allegations, an audit commenced in 2011 that resulted in a notice of determination by the Department on July 23, 2012, that Yogurt Time owed $947,235 for an approximately three-year period (January 1, 2008, through March 31, 2011) (audit period 1) and a notice of determination on April 23, 2015, that Yogurt Time owed $378,370 for a later

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three-year period (July 1, 2011, through June 30, 2014) (audit period two). Yogurt Time then appealed the Department’s determinations to the State Board of Equalization (BOE), which made a number of adjustments reducing the deficiencies, but while the appeals were still pending the OTA (on March 30, 2018) informed Yogurt Time its appeal would be heard before the OTA instead of the BOE. Yogurt Time allegedly was required to resubmit all documents and materials to the OTA and in effect start over with the OTA, and the OTA subsequently rendered its decision in the appeals declining to make many of the adjustments the BOE had made. Yogurt Time alleges it is bringing suit “to challenge not only the determination of the [OTA decision] but also the procedure used in making its determination, and whether Appellant’s rights were violated in the process.” Respondents explain without contradiction that as of January 1, 2018, the OTA became the successor to the BOE with regard to administrative tax appeals, at which point all pending appeals were transitioned to the OTA and the BOE was prohibited from taking any further action concerning them. The trial court sustained a demurrer without leave to amend to Yogurt Time’s complaint on the ground that Yogurt Time violated the “pay first” rule by bringing suit without having first paid the disputed tax. Yogurt Time now appeals the order sustaining the demurrer, and we affirm. DISCUSSION “Among the most basic principles of appellate review are that a trial court’s decision is presumed correct, and the appellant bears the burden of presenting argument and legal authority to demonstrate error thereby overcoming the presumption.” (Osborne v. Pleasanton Automotive Co., LP (2024) 106 Cal.App.5th 361, 380-381.) To do this, “ ‘an appellant must supply the reviewing court with some cogent argument supported by legal analysis