Burke v. City & County of San Francisco

DRAPER, P. J.

This action for declaratory relief was

dismissed after the sustaining of demurrer to the complaint without leave to amend. Plaintiffs appeal.

Plaintiffs own real property in the Diamond Heights section of San Francisco. Believing the improvements on their lands to be assessed at too high a figure for the 1965-1966 tax year, they applied to the supervisors, sitting as a board of equalization, for reduction. The assessment was reduced by 15 percent. Plaintiffs paid, under protest, the tax due upon this reduced assessment. They then brought this action for declaratory relief, and also commenced a mandamus proceeding (Code Civ. Proc., § 1094.5) to review the action of the board of equalization.

Insofar as the present complaint for declaratory relief is directed to the 1965-1966 assessment, the demurrer was properly sustained. The mandamus proceeding, which raised this precise issue, admittedly has been determined adversely to plaintiffs. No appeal was taken, and the judgment is now final. The time for filing an action to recover the taxes paid under protest has passed (Rev. & Tax. Code, § 5138). We do not understand appellants to contend that any justiciable issue remains as to the 1965-1966 assessment and tax.

They urge, however, that the true issue is not the 1965-1966 taxes, but “whether the assessment practices of the respondents and their assessors comply with the Constitution and Laws of California, ’ ’ without regard to any specific assessment. This assertion appears only in the briefs, and not in the complaint.

Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly

[34]

applicable to one for declaratory relief

(Foster

v.

Masters Pontiac Co.,

158 Cal.App.2d 481 [322 P.2d 592]). The distinguishing characteristic of the action for declaratory relief is that it may be brought before an actual invasion of rights has occurred (2 Within, Cal. Procedure (1954) §447).