ASCHILEW JEMBER, et al v STATE BOARD OF EQUALIZATION

Although the complaint is not clear, it appears that plaintiffs Aschilew Jember (“Jember”), Ferede Negash (“Negash”) and Leilti Mesfin (“Mesfin”) (collectively, “Plaintiffs”) allege that, in May 2003, the State of California’s Board of Equalization conspired with gangs and members of the KKK to “collect racial hate crime service fees” and “manufacture bogus tax liability” allowing the Board to claim $385,000 in fraudulent tax liability against Plaintiffs as owners of the Lunch Box Restaurant.

Defendants State of California, by and through the Board of Equalization (“State”), Bryan Dang (“Dang”), Betty Yee (“Yee”), George Runner (“Runner”), Michelle Steele (“Steele”), Jerome Horton (“Horton”) and John Chiang (“Chiang”) (collectively, “Defendants”) demur to the complaint on the ground that it is uncertain, and also fails to state facts sufficient to constitute a claim against them because the claims are barred by the California Constitution Article XIII Section 32 and California Revenue and Taxation Code sections 6931 and 6932, which preclude the use of a civil action to prevent the collection of taxes, and for failure to allege facts demonstrating compliance with the Government Claims Act. Additionally, Defendants demur to the complaint on the ground that it fails to state facts sufficient to constitute a claim against them because they are immune from liability pursuant to Government Code section 860.2.

In opposition to the demurrer to the complaint for failure to comply with the Government Claims Act, Plaintiffs argue that they have indeed complied with the Act. However, no such facts are present in the complaint and Plaintiffs’ lengthy declaration in support of their opposition do not demonstrate that such a claim was presented pursuant to Government Code section 910, et al. The demurrer to the complaint on this ground is SUSTAINED with 10 days leave to amend.

Defendants demur to the complaint on the ground that the claims are barred by Revenue and Tax Code sections 6931 and 6932. Section 6931 states that “[n]o injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this State or against any officer of the State to prevent or enjoin the collection under this part of any tax or any amount of tax required to be collected.” (Rev. & Tax Code § 6931.) Section 6932 states that “[n]o suit or proceeding shall be maintained in any court for the recovery of any amount alleged to have been erroneously or illegally determined or collected unless a claim for refund or credit has been duly filed pursuant to Article 1 (commencing with Section 6901).” (Rev. & Tax Code § 6932.) Further, Article XIII Section 32 “establish that the sole legal avenue for resolving tax disputes is a postpayment refund action.” (State Bd. of Equalization v. Super. Ct. (O’Hara & Kendall Aviation, Inc.) (1985) 39 Cal. 3d 633, 638.) “A taxpayer may not go into court and obtain adjudication of the validity of a tax which is due but not yet paid.” (Id.) Here, the complaint alleges that “Plaintiffs respectfully request the court for Temporary restrain[ing] order against all defendants separately and jointly to cease and decease [sic] the racial hate crime until the disposition of the lawsuit on jury trial based upon facts and witnesses by laws and rules of court.” (Complaint, ¶ 43.) The complaint also alleges that the aforementioned “racial hate crime” to which Plaintiffs refer is a composite of the actions that Defendants took in “creating bogus tax liability” through certain “San Jose local KKK tools” such as Prolific Merchant Solutions, Wells Fargo Bank, Bank of the West in Omaha, First National Bank Omaha in New England, Union Bank, Citizens Equity First Credit Union, First Tech FCU, First Republic Bank, and Bank of America. Again, neither the complaint nor the declaration that Plaintiffs have submitted in opposition demonstrate that Plaintiffs have either presented a claim for refund to the Board with specific grounds or factual bases for their claim pursuant to the Revenue and Tax Code, or that they have paid the alleged tax liabilities in compliance with Article XIII Section 32 of the California Constitution. The demurrer to the complaint is SUSTAINED with 10 days leave to amend on this ground as well.

Additionally, Defendants demur to the complaint on the ground that it fails to state facts sufficient to constitute a claim because any such claim is barred by Government Code section 860.2, which states 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.

Section 860.2 is broadly construed and encompasses both ministerial and discretionary acts and omissions. (See Mitchell v. Franchise Tax Bd. (1986) 183 Cal. App. 3d 1133, 1136-1137 (sustaining demurrer without leave to amend, stating that section 860.2 makes no distinction between discretionary and ministerial acts).) In opposition, Plaintiffs argues that “[t]he lawsuit claims very clearly and specifically challenging all tax liabilities claims manufactured from State to State in thousands for 20 years blindly after bogus Lunch Box Restaurant sales manufactured based on self created owners and deletion of business records criminally is crime on file.” (Pls.’ opposition to demurrer, pp.5-6, ¶ 13.) This statement admits that the complaint’s claims are based on the “institution of judicial or administrative proceedings or actions for or incidental to the assessment or collection of a tax. Further, the complaint alleges acts—levy on tax liability and foreclosure—that are clearly for the assessment or collection of the alleged tax liability. The demurrer to the complaint is SUSTAINED with 10 days leave to amend on this ground as well.

Finally, Defendants demur to the complaint on the ground that it is uncertain. Here, the complaint frequently uses the words “racial hate crime operation” such that a reader can discern that Plaintiffs are complaining of certain acts that they believe to be wrongful and on account of their race. However, it is uncertain how Defendants are alleged to be liable. For example, the complaint alleges that the “endless racial hate crime operation [is] in violation of CCP section 52-52-10 California right codes preventing hate crimes. (See complaint, ¶ 28.) However, the Code of Civil Procedure has neither a section 52 nor a section 5252. (See Covenant Care v. Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790 (stating that “statutory causes of action must be pled with particularity”).) Accordingly, the demurrer to the complaint is SUSTAINED with 10 days leave to amend on this ground as well.

If the tentative decision is adopted, the Court will prepare and serve the Order.

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