Koff v. Harry

Filed 7/24/07 Koff v. Harry CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Inyo County. Edward Forstenzer, Judge. (Retired judge of the Mono Superior Court, assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Darline Ruth Koff, in pro. per., for Plaintiff and Appellant.

Paul N. Bruce, County Counsel; Law Offices of John D. Kirby and John D. Kirby for Defendant and Respondent.

Plaintiff Darline Ruth Koff appeals from a judgment denying her petition for writ of mandate and dismissing her action, following the trial court sustaining defendant Beverly J. Harrys demurrer to Koffs writ petition.

In Koffs writ petition, Koff alleged that defendant Harry, the Inyo County Recorder, violated a ministerial duty by recording an unauthorized or uncertified notice of federal tax lien against Koffs property. We conclude certification of the notice of federal tax lien was not required, and therefore we affirm the judgment.

1. Procedural and Factual Background

In 1989, and more recently on June 24, 2004, the Inyo County Recorder, Harry, recorded a Notice of Federal Tax Lien against Koffs property due to Koff failing to pay taxes assessed against her in 1982, 1983, 1984 and 1985.^[1] During a telephone conversation in September 2005, Koff told Harry the lien filed in June 2004 should be withdrawn under Government Code section 27320^[2] because it had not been authorized to be recorded. Harry told Koff that she was unable to find certification of the lien and that she did not have authority to withdraw the lien.

On December 27, 2005, Koff filed a petition for writ of mandate seeking an order restraining the Inyo County Recorder, Harry, from improperly recording the June 2004 notice of federal tax lien (IRS Form 668 (Y)(c)) (which had already been recorded). Koff requested the trial court to order the Inyo County Recorder to withdraw the lien and award her $26,000,000 in monetary damages for unlawfully recording the tax lien notice.

Harry demurred to Koffs writ petition on the following grounds: (1) the notice of federal tax lien was not required to be certified in order to be recorded by the county recorder; (2) Koff failed to allege compliance with the California Tort Claims Act; (3) Koff failed to join as a real party in interest and indispensable party the United States through the Internal Revenue Service; and (4) Koffs action is exclusively a matter of federal law and thus the state trial court lacks subject matter jurisdiction over the matter.

On April 7, 2006, the trial court heard and sustained Harrys demurrer to Koffs writ petition. The court further denied Koffs writ petition and dismissed the action on the grounds asserted in the demurrer.

2. Certification of Notice of Tax Lien

Koff contends that under section 27320, the Inyo County Recorder, Harry, could not lawfully record the 2004 notice of federal tax lien against Koffs property unless the tax lien notice was authorized. Although it is unclear as to what Koff means by the term, authorized, it appears from the record, particularly from the reporters transcript of the hearing on the demurrer, that Koff is asserting that the notice of tax lien must be certified before it is filed. Section 27320 does not require certification.

Code of Civil Procedure section 2101, subdivision (a) states in relevant part: Notices of liens, certificates, and other notices affecting federal tax liens or other federal liens must be filed in accordance with this title.

Code of Civil Procedure section 2103, subdivision (a)(2) provides that If a notice of federal lien . . . is presented to a filing officer who is: [] . . . [] . . . [a] county recorder, he or she shall accept for filing, file for record in the manner set forth in Section 27320 of the Government Code, and index the document . . . . (Italics added.)

Government Code section 27320 provides in relevant part that [w]hen any instrument authorized by law to be recorded is deposited in the recorders office for record, . . . [t]he recorder shall record it without delay, . . .

Koff construes section 27320 as providing that, when a notice of federal tax lien has not been authorized, it may not be accepted for filing. But section 27320 does not require certification, attestation, or acknowledgment of the notice of tax lien before it is recorded with the Inyo County Recorder. The court in Stovall v. Andrews (1998) 65 Cal.App.4th 240, noted this when it addressed the issue of whether Code of Civil Procedure section 2102 requires certification of a federal tax lien before it is filed with the county recorder.

Not only did the Stovall court hold Code of Civil Procedure section 2102 does not require certification, but the court further stated that California does not require the attestation, certification or acknowledgment of a notice of tax lien as a prerequisite to its acceptance for filing by the recorder. Obviously then, a notice of federal tax lien may be filed without any such attestation, certification or acknowledgment because state law does not require it, and because state law does not require it, a certification by the Secretary is unnecessary in lieu of a nonexistent state requirement of attestation, certification or acknowledgment. Thus, the trial court properly denied defendants petition for writ of mandate. (Stovall v. Andrews, supra, 65 Cal.App.4th at p. 243.)

While Stovall did not specifically address whether section 27320 required certification, the court cited in a footnote relevant language contained in section 27320 (Stovall v. Andrews, supra, 65 Cal.App.4that p. 242, fn. 1), and concluded that California does not require certification as a prerequisite to recording a notice of tax lien. The Stovall court thus was aware of section 27320 but nevertheless concluded there was no statutory requirement, under section 27320 or any other provision, that a notice of tax lien be certified before it is recorded in California.

There being no legal authority requiring certification of a notice of a federal tax lien, the trial court appropriately sustained Harrys demurrer to Koffs writ petition.

3. Disposition

The judgment is affirmed. Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Hollenhorst

J.

We concur:

s/Ramirez

P. J.

s/King

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Koff is only challenging the 2004 tax lien notice.

^[2] Unless otherwise noted, all statutory references are to the Government Code.