Filed 4/20/18 DeCaprio v. Alameda County Board of Supervisors CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


STEVEN DECAPRIO,
Plaintiff and Appellant,
v.
ALAMEDA COUNTY BOARD OF SUPERVISORS, et al.,
Defendants and Respondents.

A151305

(Alameda County
Super. Ct. No. RG16811148)


Steven DeCaprio appeals the trial court’s denial of his petition for a writ of mandamus against the Alameda County Board of Supervisors and the Alameda County Tax Collector (collectively, the County). We affirm.
BACKGROUND
In April 2016, appellant filed a verified petition for a writ of mandamus in the trial court. The petition alleged as follows: In 2008, DeCaprio and Therese Dawn Elkins began occupying certain real property (the Property) with the intention of making an adverse possession claim. Prior to their occupation of the Property, DeCaprio had been told by County employees that adverse possessors’ names would not be inserted in the assessment rolls, in violation of Revenue and Taxation Code section 610. (See Rev. & Tax. Code, § 610, subd. (b)(3) [persons who submit a declaration that they are occupying property and “intend[] to be assessed for the property in order to perfect a claim in adverse possession” may have name inserted in assessment roll].) Accordingly, DeCaprio and Elkins did not receive tax bills for the Property. In 2015, DeCaprio and Elkins submitted a request to have their names inserted into the assessment roll as adverse possessors and, after the County changed its prior policy, their names were so inserted. The County subsequently sent DeCaprio a notice that the Property would be sold at a County auction due to delinquent taxes, late fees, and penalties exceeding $600,000. DeCaprio submitted a claim to the County requesting cancellation of all delinquent taxes prior to the 2010–2011 tax year, and cancellation of all late fees and penalties caused by the County’s failure to insert adverse possessors’ names in the assessment roll. The County denied the claim.
DeCaprio’s petition sought a stay of the upcoming tax auction, a writ of mandate compelling the County to set aside its denial of his cancellation claim, and a declaratory judgment that DeCaprio and Elkins may redeem the Property for an amount equal to the property taxes for the previous five years. The County filed a demurrer which the trial court sustained in part without leave to amend. DeCaprio filed a motion for judgment on the remaining claim. The trial court denied the petition, and denied DeCaprio’s subsequent motion for reconsideration. This appeal followed.
DISCUSSION
Although DeCaprio’s petition relies on Code of Civil Procedure section 1094.5, “ ‘an administrative decision that does not require a hearing or a response to public input is generally not reviewable under Code of Civil Procedure section 1094.5 but by traditional mandamus pursuant to Code of Civil Procedure section 1085 . . . .’ ” (O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 585.) No evidentiary hearing on DeCaprio’s cancellation claim was held by the County and DeCaprio does not claim he was entitled to one, so we review the County’s decision under traditional mandamus standards. “In traditional mandamus actions, the agency’s action must be upheld upon review unless it constitutes an abuse of discretion. [Citation.] ‘. . . . “In general . . . the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support . . . .” ’ ” (Id. at pp. 585–586.) “ ‘[B]ecause “trial courts and appellate courts perform the same function in mandamus actions, an appellate court reviews the agency’s action de novo.” ’ ” (Id. at p. 586.)
DeCaprio argues judgment for the County was improper because the County did not file a motion for judgment or for summary judgment. DeCaprio also complains he was not given notice there were triable issues of fact. “[A] proceeding for traditional mandamus under section 1085 of the Code of Civil Procedure . . . is, in substance, a trial to the court, as distinct from a pre-trial summary judgment motion.” (Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1461–1462.) DeCaprio filed a motion for judgment on the petition and the trial court found he failed to demonstrate he was entitled to relief. Accordingly, the court properly denied the petition.
DeCaprio next contends the County should have cancelled all taxes prior to the 2010–2011 tax year. He argues an adverse possessor establishes title by, in part, paying five years of property taxes (Code Civ. Proc., § 325, subd. (b) [“In no case shall adverse possession be considered established . . . unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons . . . have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed.”]), and the common law provides an adverse possessor takes title free and clear of the previous owner’s debts. Regardless of the merits of such an argument, “ ‘[a] taxpayer ordinarily must pay a tax before commencing a court action to challenge the collection of the tax. This rule, commonly known as “pay first, litigate later,” is well established . . . .’ ” (First Aid Services of San Diego, Inc. v. California Employment Development Dept. (2005) 133 Cal.App.4th 1470, 1478; see also Writers Guild of America, West, Inc. v. City of Los Angeles (2000) 77 Cal.App.4th 475, 483 [“pay first, litigate later” policy applies to local as well as state taxes].) Accordingly, the trial court properly rejected this claim.
DeCaprio contends he established an entitlement to cancellation of late fees and penalties under Revenue and Taxation Code section 4985.2, subdivision (a), which provides penalties or fees for delinquent taxes may be canceled by the tax collector if the “[f]ailure to make a timely payment is due to reasonable cause and circumstances beyond the taxpayer’s control, and occurred notwithstanding the exercise of ordinary care in the absence of willful neglect . . . .” He argues he established reasonable cause by his assertion that, in connection with a different property, the County informed him they would not put adverse possessors’ names on the assessment roll. DeCaprio’s petition did not allege that the County refused to accept payment of property taxes by a person other than the assessee. As the County argued below, the assessment roll is a public document and DeCaprio could determine and pay the taxes owed without being on the assessment roll. (See Community Development Com. v. County of Ventura (2007) 152 Cal.App.4th 1470, 1477 [“Once property is assessed, it is listed on the assessment roll, which must be made available for inspection by the public.”].) DeCaprio’s petition failed to establish the County’s denial of his claim for cancellation of late fees and penalties was arbitrary and capricious.
Finally, DeCaprio argues the County denied his due process right to pay taxes in violation of title 42 United States Code section 1983. His petition did not seek damages for any past violation, but instead sought an order directing the County to provide DeCaprio and Elkins “with the same due process rights as all other owners of real property within Alameda County in conformity with Revenue and Taxation Code [section] 610, Civil Code [section] 1006, and Code of Civil Procedure [section] 325.” The allegations of the petition show no current unequal treatment of DeCaprio and Elkins, and thus fail to demonstrate entitlement to such an order.
DISPOSITION
The order denying the writ petition is affirmed. Respondents are awarded their costs on appeal.









SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.





(A151305)