Yasunaga v. Stockburger

California Court of Appeal Mar 10, 1941 No. Civ. 6183Published

Before: Thompson

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Holding. The court held that the demurrer was properly sustained because the petitioner failed to file claims for tax reimbursement within the five-year statutory period required by the Statutes of 1935, and failed to request leave to amend the pleading.

Issues

Whether the petitioner's claims for tax reimbursement were barred by the five-year statute of limitations.
Whether the petitioner waived the right to challenge the denial of leave to amend by failing to request such leave from the trial court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The demurrer to the petition was properly sustained for the reason that it affirmatively appears no claim for payment of the particular amounts which are involved in this proceeding was filed within five years from the dates when they were paid”

THOMPSON, J.

The petitioner has appealed from an order sustaining without leave to amend a demurrer to her application for a writ of

mandamus

to compel the Board of Control of the State of California to approve, allow and direct to be paid two specific claims for reimbursement of taxes from a special fund created by the legislature (Stats. 1933, chap. 968, p. 2490), which taxes were erroneously levied

[398]

and collected under article XIII, section 15, of the Constitution of California, for operating, as common carriers, a trucking business on the public highways of this state. Pursuant to that order, judgment of dismissal of the proceeding was rendered and entered.

The petition alleges that Kiso Yasunaga, under the fictitious name of Produce Transfer Company, conducted, in his lifetime, a trucking business in the vicinity of San Jose, from 1928 to 1930, inclusive, but that he did not convey goods or passengers as a common carrier between fixed termini or over regular routes on the public highways; that the company, as a private carrier under contracts, transported property for which he derived a revenue in the year 1928, of $15,345.40, upon which basis the state wrongfully levied and there was paid taxes in the sum of $1,896.66, all of which was illegal except the sum of $667.27; that the company received a revenue for a similar business during the year 1929, of $9,970.67, upon which income the state wrongfully levied and collected $1,555.04, no part of which was legally due except the sum of $498.53; that the excess taxes were paid through mistake and ignorance; that the company “did within five years of the date of payment of said sums as aforesaid, namely,

on September 16,1935,

present its verified claim to said Board of Control wherein and whereby it was set forth that Kiso Yasunaga had on February 3, 1930, paid to the State of California for and on account of said invalid demands, as aforesaid, the sum of $1,229.39, and on July 10, 1930, . . . the sum of $1,056.51, and had within five years, namely on December 30, 1933, presented

a claim

Yasunaga v. Stockburger

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THOMPSON, J.

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