Laws, Regulations & Annotations

Property Taxes Law Guide – Revision 2017

Revenue and Taxation Code

Property Taxation

Part 9. Corrections, Cancellations, and Refunds

Chapter 5. Refunds

Article 2.5. Interest on Refunds

Section 5152

5152. Attorney fees and costs. In an action in which the recovery of taxes is allowed by the court, if the court finds that the void assessment or void portion of the assessment was made in violation of a specific provision of the Constitution of the State of California, of this division, or of a rule or regulation of the board, and the assessor should have followed the procedures set forth in Section 538 in lieu of making the assessment, the plaintiff shall be entitled to reasonable attorney's fees as costs in addition to the other allowable costs. This section is ancillary only, and shall not be construed to create a new cause of action nor to be in lieu of any other provision of law.

History.—Added by Stats. 1978, Ch. 1188, in effect September 26, 1978.

Construction.—It is a prerequisite to an attorney fee award under this section and Section 538 that a factual finding be made that the reason the assessor did not apply a particular provision was that he or she believed it to be unconstitutional or invalid, not that the assessor believed that the statute or regulation was simply inapplicable. Thus, a finding that the failure of a county to apply provisions of a property tax rule was a matter of a misunderstanding of the law precluded attorneys fees. Phillips Petroleum Co. v. Lake County, 15 Cal.App.4th 180.

Assessment contrary to rule.—An assessor disagreeing with property tax rule 4 should have brought a declaratory relief action against the Board pursuant to this section rather than making an assessment against real property without following the dictates of the rule. Since he did not do so, attorneys fees were properly awarded under this section. Prudential Insurance Co. v. City and County of San Francisco, 191 Cal.App.3d 1142.

Findings.—Before awarding attorney fees under Revenue and Taxation Code section 5152, a trial court must make a factual finding that a flawed assessment was based on the assessor's belief that a tax law was unconstitutional rather than a misunderstanding of the law. Ocean Avenue LLC v. County of Los Angeles (2014) 227 Cal.App.4th 344.

* Article 2 was added by Stats. 1976, Ch. 499, p. 1240, in effect January 1, 1977.