Emberton v. County of San Diego

California Court of Appeal Sep 23, 1986 No. No. D003701Published

Before: Benke

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Holding. Revenue and Taxation Code section 5147, which mandates the dismissal of tax refund actions if the summons is not returned within one year, is constitutional and does not violate due process or equal protection rights. Furthermore, a defendant's participation in procedural motions does not estop them from seeking dismissal under the statute absent evidence of intent to proceed to trial or reliance by the plaintiff.

Issues

Is Revenue and Taxation Code section 5147 unconstitutional as applied to a plaintiff when the defendant has answered the complaint?
Does the one-year return of summons requirement in tax refund cases violate due process or equal protection?
Is a defendant estopped from seeking dismissal under section 5147 if they previously filed a motion to transfer and an answer?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The power of the legislature to provide reasonable periods of limitation, therefore, is unquestioned, and the fixing of time limits within which particular rights must be asserted is a matter of legislative policy”

“The Legislature specifically rejected a “general appearance exception” to the one-year service and return deadline”

“The two-month period cannot be said as a matter of law to be unreasonable.”

[270]Opinion

BENKE, J.* Plaintiffs Willis Mars Emberton, Phyllis Emberton and Emberton Machine and Tool, Inc. (Emberton) appeal a dismissal for failure to return summons within one year. (Rev. & Tax. Code, § 5147.)

Facts

On April 24, 1984, Emberton filed a complaint against the County of San Diego, the board of supervisors, the county assessor, the auditor/ controller, the assessment appeals board and the county tax collector (County) for refund of county property taxes and injunctive relief.

The case was originally assigned to the El Cajon Municipal Court. However, County filed a request to transfer the case to superior court in San Diego. Immediately following its request to transfer the case, County filed a general denial.

Emberton filed no opposition to County’s request to transfer, nor did he appear personally or through counsel at the hearing on the motion. The . request to transfer was granted.

County then filed a motion to dismiss for failure to return summons within one year pursuant to Revenue and Taxation Code section 5147. The court granted County’s motion to dismiss. Emberton appeals.

Discussion

Emberton attacks the constitutionality of Revenue and Taxation Code section 5147 which provides; “No [action for refund] hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all such actions hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any defendant therein unless the summons shall have been issued and served and the return thereon made within one year after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended.”

Emberton argues Revenue and Taxation Code section 5147 is unconstitutional as applied because its requirement of summons and proof of [271]

Emberton v. County of San Diego

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