Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC384075. Gregory W. Alarcon, Judge.
Ramnik Trivedi, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, W. Dean Freeman, Felix E. Leatherwood, and Christine Zarifian, Deputy Attorneys General, for Defendant and Respondent.
ZELON, J.
Ramnik Trivedi sued the Franchise Tax Board, alleging that the state’s effort to collect taxes from him amounted to a series of torts. The trial court granted the Franchise Tax Board’s motion for judgment on the pleadings and dismissed the case. We affirm.
Sometimes referred to as the FTB.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008 Trivedi filed a complaint against the Franchise Tax Board in which he alleged that he was an elder as defined by California law and that he had been subjected to erroneous collection actions concerning taxes from 1992 and 1993. According to the complaint, the Franchise Tax Board unjustly garnished his wages; levied funds from his bank accounts without his consent; placed liens; precluded him from withdrawing money from his bank accounts, resulting in hardship; and refused to cease and desist, causing physical injuries, financial damages, and professional harm. Trivedi asserted five causes of action: one claim under Revenue and Taxation Code section 21018 seeking compensation for damages sustained in an erroneous collection action; another under sections 19057 and 19066 for compensation for tax collection proceedings occurring after the statute of limitations had passed; a third claim under the Katz-Harris Taxpayers’ Bill of Rights (§ 21001 et seq.) seeking compensation for injuries and financial damages from erroneous collection actions based on fabricated deficiencies for 1992 and 1993; a fourth claim for elder abuse based on Welfare and Institutions Code sections 15657, subdivision (a), and 15610.23; and a final claim for an injunction ordering the Franchise Tax Board to comply with state laws and regulations governing collection actions against elder taxpayers, invoking section 19057.
Unless otherwise indicated, all further statutory citations are to the Revenue and Taxation Code.
The Franchise Tax Board filed a motion for judgment on the pleadings. The trial court granted the motion by a signed order, but in that order the court did not dismiss the case. Instead, the court purported to dismiss the case by means of an unsigned minute order. Trivedi appeals.
Because the court’s minute order of August 7, 2008, does not satisfy Code of Civil Procedure section 581d’s requirement that “[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action....” and is not an appealable order (Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369), at the court’s instruction the clerk of the court wrote Trivedi directing him to provide a copy of a signed order of dismissal or judgment or to explain why his appeal should not be dismissed. In response, Trivedi obtained and filed with this court a copy of an order dismissing the action that was stamped by the trial court. While we have previously noted our concerns about stamped, rather than signed, orders (Brehm v. 21st Century Insurance Co. (2008) 166 Cal.App.4th 1225, 1234, fn. 5 [criticizing practice of dismissing cases by stamped minute order]), we take judicial notice of the after-filed order of dismissal (Evid. Code, §§ 459, subd. (a), 452, subd. (d)(1)) and exercise our discretion under California Rules of Court, rule 8.104(e)(2) to treat the notice of appeal as an appeal from that order. (See Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730, 1731-1732.)
DISCUSSION
In an opening brief that contains a series of complaints and recited principles concerning demurrers and complaints, with many arguments interconnected and restated, Trivedi appears to contend that: the trial court did not consider his papers opposing the motion for judgment on the pleadings; the motion for judgment on the pleadings was granted based on the mischaracterization of the action as a tax refund case, when actually it is a suit for damages based on abusive collection actions; he properly stated causes of action for violation of the Taxpayers’ Bill of Rights because the illegitimate collection actions caused him to sustain damages in the amount of $85,078.73 and liquid asset losses of $59,104.00; the Franchise Tax Board’s conduct constituted elder abuse, and the trial court erroneously dismissed his elder abuse cause of action on the basis that the court did not know about this law;; he had in fact complied with the claims presentation requirement necessary to file a tax refund action; he sufficiently alleged five causes of action with his allegation that the Franchise Tax Board “intentionally, negligently” enforced illegitimate tax collection actions against him for taxes not due and past the statute of limitations; the state waived its immunity when it enacted the Elder Abuse Act; governmental immunity does not apply here; the “defendant failed to demurrer complaint for entity immunity”; California Constitution, article XIII, section 32 does not bar relief; and injunctive and declaratory relief are proper here. Applying a de novo standard of review to determine whether the complaint alleges facts sufficient to state a cause of action (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298), we consider each argument in turn, and conclude that Trivedi has not established that the trial court erred in dismissing the action based on the motion for judgment on the pleadings.
I. Documents Considered
Trivedi asserts that “the Superior Court did not consider plaintiff[’s] submitted opposition, Memorandum of Points and Authorities and Affidavit of plaintiff to deny defendant’s motion for judgment on the pleadings.” Trivedi does not offer any citation to the record to support his assertion. “It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the specific pages where the evidence can be found.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) Moreover, conformed copies of the opposition and supporting declaration appear in the record, indicating that the documents were filed. The court’s written ruling acknowledges that opposition was filed, mentions no refusal to consider Trivedi’s filings, and even refers to a specific assertion made in Trivedi’s opposition. Trivedi has not shown any error by the trial court in this regard. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 (State Farm) [appellant’s burden to affirmatively demonstrate error].)
II. Tax Refund Case Argument
Trivedi argues, “Superior Court dismissed plaintiff’s case and granted defendant’s Motion for Judgment on the pleadings was in Error because defendant’s motion for judgment on pleadings was fundamentally based on tax refund case and that argument of defendant was improper in application of the complaint as tax refund case, which is not, and inapplicable to this case.” We understand this to be an argument that the trial court erroneously dismissed the case on the theory that it was a tax refund action when in fact Trivedi more broadly alleges harms arising from collection actions.
Trivedi misperceives the ruling on the motion for judgment on the pleadings. The trial court understood that Trivedi was complaining about the conduct of the Franchise Tax Board in assessing and collecting taxes that Trivedi believed to be improper. The court wrote in its ruling, “As plaintiff admits in its opposition, the complaint stems from an allegedly ‘erroneous collection action’ by the State of California Franchise Tax Board and the ‘alleged abusive actions against the elder plaintiff that have caused physical and economic injuries.’” The court then concluded that, for various reasons, the complaint failed to state a cause of action. First, the court reasoned, to the extent that Trivedi was seeking tort damages, he could not prevail because the State of California is immune from liability for injuries caused by the collection of taxes. (Gov. Code, § 860.2.) Next, to the extent that Trivedi sought declaratory and injunctive relief blocking the Franchise Tax Board from further collection activities, actions seeking such relief are barred by the California Constitution. (Cal. Const., art. XIII, § 32.) Further, the court concluded that to the extent that Trivedi was seeking the return of money collected by the Franchise Tax Board, that avenue was also barred by Trivedi’s failure to plead facts showing that he paid the challenged taxes and filed for a refund claim. In this portion of his brief, Trivedi has not alleged error in this last portion of the ruling concerning tax refunds, instead arguing that the entire ruling of the court was based on a false premise concerning tax refunds. Contrary to Trivedi’s argument, the ruling of the court on the motion for judgment on the pleadings demonstrates that it was not granted on the belief that the action was merely a tax refund case.
III. Taxpayers’ Bill of Rights
Trivedi argues that he asserted valid five causes of action arising under sections 21021 and 21018 “for defendant intentionally enforced erroneous collection action against plaintiff on illegitimate reason and sustained sever[e] financial damages in the amount of $85[,]078.73 and Liquid asset loss of amount $59[,]104.00 and for this damages cause of action arose under Taxpayers ‘Bill of Rights’, effective for damages accruing after December 31, 1998, amended in 1998 and 1999[ ]and that provides ground bases to bring the suit in the Superior Court and this legal mandate authorizes the Court jurisdiction to grant relief against defendant.” As a starting point, Trivedi did not allege five causes of action under the Katz-Harris Taxpayers’ Bill of Rights Act, § 21001 et seq. He alleged only two causes of action under that law, his first and third cause of action; Trivedi’s complaint asserts that the other causes of action were authorized by section 19057, some provisions of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq., also known as the Elder Abuse Act), and a provision of the Code of Civil Procedure. We understand Trivedi’s argument to challenge the trial court’s ruling that Trivedi’s claim under the Taxpayers’ Bill of Rights “is without merit because there are no facts showing that the FTB is liable or that the FTB violated any procedures. At most, the complaint is conclusory and fails to state ultimate facts.”
We find no error in the trial court’s ruling on the two causes of action asserted under the Taxpayers’ Bill of Rights. In Trivedi’s first cause of action, he incorporated all prior paragraphs of the complaint, and then added a single new paragraph, which reads as follows: “Under provision of Cal. Gov. Code R&TC §21018, it provides that Taxpayer can bring a suit in the Court against California State/FTB for enforcing erroneous collection action against taxpayer plaintiff and plaintiff is entitled to received compensation for sustained damages. Under Cal. Gov. R&TC §21018 provides bases for damages compensation and relief.” But section 21018 does not have anything to do with litigation for erroneous collection actions: it provides a process for taxpayers to file claims with the Franchise Tax Board to obtain reimbursement of charges or fees imposed by an unrelated business entity as the direct result of an erroneous levy, processing action, or collection action. The trial court did not err in concluding that Trivedi had failed to state a claim with respect to this cause of action.
In his third cause of action, seeking relief under the Taxpayers’ Bill of Rights in its entirety, Trivedi incorporated by reference all 24 earlier paragraphs of his complaint and then alleged, “Cause of claim arises under taxpayers ‘Bill of Rights’, effective for damages accruing after December 31, 1998. It was amended in 1998 and 1999. After 11 years and later and 2007,[ ]2005,[ ]2004 and 2003, the FTB had enforced erroneous collection actions against plaintiff by fabricating unrealistic due taxes for the year of 1992 and 1993. Under taxpayers Bill of Right, it provides legal bases to seek damages compensation from defendant for elder plaintiff sustained injuries and financial damages.” Even if Trivedi meant to proceed under section 21021 as he states in his opening brief, his pleading was insufficient to state a cause of action. Section 21021 provides that “If any officer or employee of the board recklessly disregards board published procedures, a taxpayer aggrieved by that action or omission may bring an action for damages against the State of California in superior court.” (§ 21021, subd. (a).) Trivedi failed to allege facts showing that any officer or employee of the Franchise Tax Board recklessly disregarded any board published procedure. The motion for judgment on the pleadings was properly granted.
IV. Elder Abuse Cause of Action
At several points in his opening brief Trivedi discusses his elder abuse cause of action. First, he contends that this cause of action was based on “defendant’s abusing and financial exploitation conduct, intentional wrongs and breach of statutory duties and that caused elder plaintiff to suffer injuries that disabled him, lost his working capability, lost his job and lost his earnings and sustained damages in the amount $200,000.00 and medical treatment expense of $50,000.000.” He argues that he “presented sufficient fact with the complaint to constitute cause of action but defendant completely ignored critical legal and factual issues raised by Plaintiff in his complaint.” Trivedi does not identify what those critical legal and factual issues are; he merely asserts that the lower court missed the legal issue and erroneously “sustained the demurrer,” then lists a series of legal principles about demurrers. He concludes, “Defendant’s argument is insufficient and wrong in reading of elder plaintiff’s complaint causes of claim and its intention is to avoid complaint claims by dismissing the complaint from the court without justice and left the elder plaintiff’s life destructive and economical ruin. The lower court followed the same path by sustaining demurrer in similarity of defendant’s motion for judgment on pleadings and without justice, the lower court dismissed plaintiff’s case and that is in error. Therefore, this Court must reverse the lower court decision.” This argument is inadequate to show error by the trial court. “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ [Citations.] Hence, conclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Later in his opening brief, Trivedi makes a similar argument concerning this cause of action. He repeats his argument that the claim arises from the Franchise Tax Board’s allegedly “abusing and financial exploitation conduct, intentional wrongs, [and] breach of statutory duty,” alleges the same damages, again accuses the Franchise Tax Board of ignoring the critical legal and factual issues raised in the complaint, and again does not set forth what those legal and factual issues are. Instead, he recites another series of legal principles concerning demurrers and taxpayer actions, not explaining how the trial court supposedly erred in its ruling on the elder abuse claim. Here again, Trivedi has failed to show error. (In re S.C., supra, 138 Cal.App.4th at p. 408.)
Next, in a separate argument section devoted to his elder abuse claim, Trivedi contends that the court erred in its ruling on that cause of action because “[t]he Superior Court states in its complaint dismissing order that the Superior Court did not have knowledge of this law and dismissed the case.” The record contradicts this assertion. The trial court wrote, “Finally, as for the Elder Abuse claims, the Court is unaware of any controlling authority nor has the plaintiff cited any that imposed liability pertaining to the Elder Abuse statutes based upon a collection or assessment of state taxes. The FTB is also immune pursuant to G[overnment] C[ode section] 860.2.”
Trivedi next asserts that the State of California waived its immunity when it enacted the Elder Abuse Act, and that elder abuse causes of action can be brought against public entities despite governmental immunities. Trivedi cites no case that stands for that position, nor does he present a reasoned argument why the law should be interpreted as he urges despite the absence of any authority. Trivedi has not established any error here. “If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 (Boyle).)
Trivedi makes additional arguments concerning jurisdiction, then repeats his earlier contention that his cause of action was sufficient to state a claim and that the defendant (and presumably the trial court) ignored legal and factual issues raised by the complaint. As Trivedi has not demonstrated any error in the court’s ruling that tax collection efforts do not constitute elder abuse and that the Franchise Tax Board is immune from suit under Government Code section 860.2 for its tax collection activities, Trivedi has not shown that the trial court erred in granting the motion for judgment on the pleadings and dismissing his elder abuse cause of action.
V. Jurisdictional Argument
Trivedi argues that he properly invoked the jurisdiction of the superior court by complying with the claim presentation requirement, and points to a claim he filed with the California Compensation and Government Claims Board. He argues that when this claim was rejected, he filed suit within the requisite time period, and thus his suit was properly before the trial court. He further argues that he exhausted all administrative remedies, that the claims arise under the Taxpayer Bill of Rights, that the damages requested are within the court’s jurisdiction, and that the “Court’s jurisdiction is to favor the elder plaintiff taxpayer rather than the government entity.”
The only reference to jurisdiction in the trial court’s ruling on the motion for judgment on the pleadings is its statement that the filing of a tax refund claim is “jurisdictional and is a necessary prerequisite for a lawsuit.” In light of Trivedi’s reference to the presentation of his claim and his citation to Wertin v. Franchise Tax Bd. (1998) 68 Cal.App.4th 961 (Wertin), it appears that he intends to argue that the claim he submitted to the California Compensation and Government Claims Board was sufficient to constitute a claim for refund to the Franchise Tax Board.
Wertin, supra, 68 Cal.App.4th at page 977, stands for the proposition that no particular format is necessary for a proper refund claim: the statute (§ 19322) requires only that the claim be signed and in writing and that it state the specific grounds for the claim; this satisfies the statute’s purpose of giving notice to the Franchise Tax Board of a claim. In Wertin, however, the refund claim was a letter sent by the taxpayer to the Franchise Tax Board notifying it of the claim for a refund and incorporating documents that made clear the objection and its basis. (Wertin, at pp. 976-977.) Here, the claim Trivedi argues to have been sufficient to “comply[] with the claim presentation requirement,” was an administrative claim for damages directed to the California Government Claims Board, not a tax refund claim directed to the Franchise Tax Board. “[A] taxpayer must file a post-payment refund claim before proceeding with a suit for refund.” (J.H. McKnight Ranch, Inc. v. Franchise Tax Board (2003) 110 Cal.App.4th 978, 987; see also §§ 19322, 19382; Cal. Const., art. XIII, § 32.) The complaint did not allege facts demonstrating that Trivedi satisfied this prerequisite to the filing of litigation to recover alleged tax overpayments, and therefore Trivedi has not demonstrated any error in the trial court’s ruling that his claim for a refund was barred on that ground. (State Farm, supra, 90 Cal.App.4th at p. 610.)
VI. Sufficiency of the Stated Facts to Constitute Causes of Action
Trivedi argues that his complaint was sufficient to state causes of action against the Franchise Tax Board “because the complaint plainly states five (5) counts of claim against the defendant, all of which arise under California State laws and underlying facts of the complaint and attached exhibits those are subject to judicial notice.” He repeats that the causes of action arise from the allegedly illegitimate collection practices of the FTB, asserts that he has set forth the essential facts of the complaint with reasonable precision so as to inform the defendant of the nature, source, and extent of the cause of action, reasserts the provisions of the Revenue and Taxation Code that he believes authorize the claims; and contends that taking the allegations of the complaint as true, he is entitled to relief.
In this section he also returns to his elder abuse cause of action, but we have already discussed his arguments on this claim in Section IV above.
None of these conclusory assertions constitutes a cognizable legal argument challenging the dismissal based on the motion for judgment on the pleadings. Trivedi has not presented meaningful analysis challenging the trial court’s conclusion that the motion for judgment on the pleadings should be granted because of governmental immunity, constitutional bars, failure to comply with statutory prerequisites, and insufficient pleading. (Boyle, supra, 137 Cal.App.4th at p. 649 [appellant must present argument and legal authority on each point raised on appeal].)
VII. Government Code Section 860.2
Government Code section 860.2 provides that “Neither a public entity nor a public employee is liable for an injury caused by: [¶] (a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax. [¶] (b) An act or omission in the interpretation or application of any law relating to a tax.” Trivedi contends that Government Code section 860.2 “may provide government entity with immunity but it is not as broad an immunity as that applied by the Superior Court to plaintiff’s complaint because accepting Plaintiff’s settlement payments in the year of 2000 is sufficient to constitute a waiver of sovereign immunity.” Trivedi offers no authority or argument to support this assertion, nor do we find any basis in the statute and its interpretive decisional law to support it. (In re S.C., supra, 138 Cal.App.4th at p. 408 [appellant must provide meaningful legal analysis supported by citations to authority and to supporting facts in the record].)
Trivedi continues, “The immunity only protects government entities from liability for injuries flowing from mistakes in the application of a tax but it does not immunize entity from having to correct their mistakes of illegal collection actions against regular taxpayer plaintiff.” Again, Trivedi offers no legal argument or citations to authority to support this assertion. (In re S.C., supra, 138 Cal.App.4th at p. 408 [appellant’s burden to provide legal analysis with citations to authority and to pertinent facts in the record].)
Trivedi then argues that the Franchise Tax Board’s interpretation (and presumably, the trial court’s interpretation) of Government Code section 860.2 should be rejected because it would render sections 21021, 21018, 21004, and 19057 meaningless. We cannot identify any way in which the Revenue and Taxation Code is rendered meaningless by the trial court’s ruling that as a matter of explicit state constitutional law the government is immune from claims for tort damages related to the assessment and collection of personal income taxes. Despite the express governmental immunity granted by Government Code section 860.2, section 19057 continues to provide procedures for notices, assessments, and collection of deficiencies; section 21004 continues to set forth the powers and duties of the Taxpayers’ Rights Advocate; and section 21018 continues to provide a claims filing procedure to obtain reimbursement of charges and fees imposed by an unrelated business entity as a direct result of an erroneous levy, collection action, or processing action by the Franchise Tax Board.
As for section 21021, that statute continues to permit taxpayer litigation when an officer or employee of the Franchise Tax Board recklessly disregards board published procedures, and it is not rendered meaningless by the trial court’s ruling. The trial court did not hold that governmental immunity under section Government Code 860.2 barred a suit under section 21021; it ruled that Trivedi’s Taxpayers’ Bill of Rights claim was subject to a motion for judgment on the pleadings because Trivedi pleaded “no facts showing that the FTB is liable or that the FTB violated any procedures. At most, the complaint is conclusory and fails to state ultimate facts.” Trivedi has not shown that this ruling was in error.
Trivedi next maintains that “[t]he legislative record also shows that the Legislature expects that when entity mistakes in collection of taxes and something that would not occur if section 860.2 of the Government Code provided the immunity claimed by the entity is not available then accordingly the case would have been resolved in favor of taxpayer; [citation.] In like wise, as here, the case should be resolved in favor of plaintiff by the court.” Trivedi offers no citations to the legislative record to support his argument, and the cases he cites are inapposite. Here, Trivedi has presented “mere suggestions of error without supporting argument or authority other than general abstract principles.” (Lowery v. Robinson (1965) 238 Cal.App.2d 36, 39.)
Trivedi argues that Government Code section 860.2 “does not bar the complaint claim in this case,” citing Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, but that decision does not involve Government Code section 860.2. Loehr concerned an action for wrongful termination and reinstatement filed by the former superintendent and chief executive officer of a community college district. (Loehr, at p. 1076.) The trial court sustained demurrers and dismissed the case on the basis that it was barred by the statutes of limitation and by the plaintiff’s failure to comply with the filing provisions of the California Tort Claims Act (Gov. Code, § 900 et seq.). (Ibid.) The trial court affirmed the dismissal because the plaintiff failed to file a timely claim under the Tort Claims Act, and this obligation was not excused as a matter of law. (Id. at pp. 1080-1083.) This case offers no support for Trivedi’s assertion that Government Code section 860.2 does not apply to this case, and Trivedi has not shown any error in the trial court’s ruling. (State Farm, supra,90 Cal.App.4th at p. 610 [appellant’s burden to affirmatively demonstrate error].)
VIII. Argument that “Defendant failed to demurrer complaint for entity immunity”
Under the above heading, Trivedi argues, “The Superior Court has demurred plaintiff’s complaint under entity tort immunity GS § 860.2 which is inapplicable to plaintiff’s complaint because under ‘Tort Claim Act’, in order to survive a demurrer, Plaintiff’s complaint sufficiently alleged the elements necessary for liability of defendant § 815.6 which creates a private citizen right of action against entity because it is fact that plaintiff is 69 years old U.S. citizen and principally under Cal. Gov. Welf & I C §15630, it has waived government immunity for elder abuse and financial exploitation damages claim.” Trivedi restates the nature of his action and cites a portion of the decision in Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal.App.4th 298 that describes a split of authority on whether an action on a contract is an action for money or damages within the purview of the claims presentation requirements under the Tort Claims Act (id. at pp. 305-307), but that decision has no bearing on the issues here, and Trivedi offers no clarifying analysis. (Boyle, supra, 137 Cal.App.4th at p. 649 [appellant must present argument and legal authority on each point raised on appeal].)
Trivedi continues, “Accordingly, ‘public entities can be held liable only if a statute... is found declaring them to be liable.’ [Citation.] It allows private individual to sue the defendant entity for its employees’ acts as a breach of contractual obligation duty by accepting plaintiff’s settlement payments in the year of 2000 which is sufficient to constitute a waiver of sovereign immunity and that the cause of action arises under taxpayers ‘Bill of Right’ against defendant.” We do not know what the “it” is in Trivedi’s briefing that purportedly permits taxpayers to sue the Franchise Tax Board for tax collection actions if the Franchise Tax Board has accepted settlement payments, and none of the statutes or decisions cited by Trivedi support his claim that by allegedly settling a tax dispute and accepting payments, the Franchise Tax Board has waived immunity. Trivedi has not demonstrated any error in the trial court’s ruling. (In re S.C., supra, 138 Cal.App.4th at p. 408.)
Trivedi next asserts that elder abuse actions can be brought against public entities. Neither of the two decisions he cites, Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236 and Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, concerns litigation under the Elder Abuse Act, and neither holds that tax collection actions can constitute elder abuse. Similarly, Dillon v. Legg (1968) 68 Cal.2d 728 is cited for the proposition that “California has recognized that liability should be imposed upon Entity for damage done,” but that decision concerns the existence of a bystander’s cause of action for negligent infliction of emotional distress and has nothing to do with liability of a public entity under the Elder Abuse Act for allegedly abusive tax collection activities.
Trivedi then states that “The entity has no legal authority to violate the laws of the State of California and no state administrator has authority to refuse to follow the law established by the State of California, Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1104-1105. Thus, defendant failed to demurrer complaint for entity immunity. Therefore, the Superior Court ruling should be reversed by this Court.” It appears that Trivedi is claiming that because the Franchise Tax Board did not follow the law with its tax collection policies, it cannot be immune. Government Code section 860.2, explicitly granting immunity for injuries caused by tax collection actions, disposes of this contention except insofar as the Franchise Tax Board’s conduct may be actionable under section 21021. As we discussed above, however, immunity was not the basis for the judgment on the pleadings and dismissal of the cause of action asserted under section 21021; instead, the trial court ruled that Trivedi had failed to plead sufficient facts to state a claim under that section. As we have already discussed, Trivedi has not established that this ruling was erroneous. Trivedi has not demonstrated any error by the trial court in the dismissal of his action. (State Farm, supra,90 Cal.App.4th at p. 610.)
IX. California Constitution, Article XIII, Section 32
Article XIII, section 32 of the California Constitution provides, “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.” The trial court ruled that this constitutional provision precluded any declaratory and injunctive relief here. Trivedi contends that article XIII, section 32 of the California Constitution is inapplicable to his action for three reasons.
First, he claims that the action is not for a tax refund. His argument in its entirety is as follows: “[T]he complaint is not for refund of paid tax of old tax years 1992 and 1993. This case is not for tax refund at all. Being generic, defendant’s argument is necessarily both insufficient and wrong in reading of complaint and interpreting with Article XIII, section 32 Constitutionality provision to this case. Article XIII, section 32 is nothing but a procedural condition on the tax refund remedy and that it does not affect a court’s fundamental jurisdiction. Supreme Court said, the ‘pay now, litigate later’ rule, while important, is not a matter of subject matter jurisdiction. [Citation.] The proper interpretation and application of tax statutes of the complaint presents a question of law. [Citation.]Thus, article XIII, section 32 is inapplicable to plaintiff’s complaint.”
Contrary to Trivedi’s claim that the case is not for a tax refund, a review of the complaint clearly shows that Trivedi asked for the return of funds collected by the Franchise Tax Board. But the more significant defect in Trivedi’s argument on appeal is that whether the action seeks a tax refund is a matter distinct from whether the action seeks declaratory or injunctive relief to prevent the collection of a tax. It is the injunction against collection efforts that the trial court found to be barred by the California Constitution, and Trivedi’s arguments concerning a tax refund offer no basis for reversing that ruling.
Second, Trivedi asserts that the provision of the California Constitution is irrelevant “because the complaint seeks redress for violations of the statute Welf & I C §15600 et seq., § 15630 and the entity has no legal authority to violate the laws of the State of California and no state administrator has authority to refuse to follow the law established by the State of California. [Citation.] Under elder plaintiff’s injury damages circumstances, it does not affect a court’s fundamental jurisdiction and it does not relate to the defendant’s duties in the assessment or collection of taxes. [Citations.] Thus Plaintiff’s injury is sufficiently pled for monetary relief; [citation].” This appears to be an argument that article XIII, section 32 cannot preclude an elder abuse action seeking damages, but the trial court did not rule that the elder abuse cause of action was barred by this constitutional provision. Rather, the trial court ruled that Trivedi’s elder abuse cause of action failed because there was no authority to support the contention that tax collection practices could constitute elder abuse, and because of governmental immunity under Government Code section 860.2. The trial court relied on article XIII, section 32 only to rule that Trivedi was unable to obtain declaratory or injunctive relief against the future collection of taxes.
Third, Trivedi argues that the Franchise Tax Board “had created an illegitimate and invalid tax liability of plaintiff because defendant had included interest of many old years as a due tax for old tax years of 1992 and 1993 and that was a violation of defendant as listed in Article XIII, section 32, for provision, prior to January 1, 2001, the law was clear that for purposes of applying the ‘pay now, litigate later’ rule, the required payment of an assessed tax did not include payment of any accrued interest. [Citations.] Thus, in this case, defendant is in violation of [‘]pay now, litigate later’ rule. Plaintiff’s Complaint is jurisdictionally sufficient and stated facts in the complaint are sufficient to constitute cause of action and that plaintiff is entitled to relief. Thus, Complaint is jurisdictionally sufficient and stated facts in the complaint are sufficient to constitute cause of action. It is cleared that defendant did not set proper grounds in its motion for judgment on the pleadings in application of Article XIII, section 32 provision to this case. This Court has jurisdiction over defendant. [Citation.] Therefore, Defendant’s motion for judgment on the pleadings should have been denied by the Superior Court.” Trivedi has not shown how the scope of the “pay now, litigate later” rule affects the constitutional bar on declaratory and injunctive relief against tax collection efforts or otherwise invalidates the trial court’s ruling here. (State Farm, supra,90 Cal.App.4th at p. 610.)
X. Appropriateness of Injunctive and Declaratory Relief
Trivedi argues that injunctive relief is appropriate here to prevent the Franchise Tax Board from engaging in further “abusing and financial exploitation conduct.” The conduct Trivedi sought to enjoin was the collection of taxes by the Franchise Tax Board, and the California Constitution provides that the collection of taxes cannot be enjoined. (Cal. Const., art. XIII, § 32.) Thus, the trial court correctly ruled that declaratory and injunctive relief is unavailable here.
Next, Trivedi contends that this provision of the California Constitution is irrelevant here because he alleges violations of the Elder Abuse Act and his complaint “does not concern to the defendant’s duties in the assessment or collection of taxes.” Defendant’s complaint belies this assertion: he alleged that the Franchise Tax Board garnished his wages, levied his bank accounts, and imposed tax liens to collect taxes that he did not owe. In his elder abuse cause of action Trivedi alleged that it was elder abuse for the Franchise Tax Board to “creat[e] an illegitimate reason of tax due for 1992 and 1993 tax years. Defendant has financially exploited plaintiff. Defendant’s abusing conduct caused an elder citizen to suffer injuries and damages and loss of assets that was very essential to plaintiff’s health and welfare.” In the declaratory and injunctive relief claim, Trivedi alleged that the Franchise Tax Board “conducted improper tax collection activities against elder plaintiff.” Because the complaint discloses that the allegedly wrongful and elder-abusing acts of the Franchise Tax Board were the steps taken to collect taxes, Trivedi’s argument that his allegations do not concern the assessment or collection of taxes is untenable. Trivedi has not established that the trial court erred in its ruling that declaratory and injunctive relief is unavailable here pursuant to article XIII, section 32 of the California Constitution. (State Farm, supra,90 Cal.App.4th at p. 610.)
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs, if any, on appeal.
We concur: PERLUSS, P. J., JACKSON, J.