Michalak v. County of Calaveras CA3


Filed 12/30/20 Michalak v. County of Calaveras CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) —- MATTHEW MICHALAK et al., C088001 Plaintiffs and Appellants, (Super. Ct. No. 18CV43075) v. COUNTY OF CALAVERAS et al., Defendants and Respondents; BARBARA SULLIVAN, as Tax Collector, etc., Real Party in Interest and Respondent. Petitioners Matthew Michalak and Mark Flanagan applied to register as authorized marijuana cultivators in Calaveras County pursuant to a county ordinance. While their applications were pending, the County of Calaveras Assessor’s Office issued a tax assessment pursuant to the county’s authority to tax registrants for the privilege to cultivate marijuana. Petitioners appealed the assessments, arguing they did not cultivate 1 marijuana on the parcels and were told by the county that their applications to do so were going to be denied. A county hearing officer upheld the assessment. Petitioners filed a petition for writ of mandate and complaint for declaratory relief in the superior court. Respondents County of Calaveras (County) and Calaveras County Office of Administrative Hearings (OAH) demurred on the basis that petitioners failed to pay the tax assessment and request a refund. The trial court agreed and granted respondents’ demurrer without leave to amend. On appeal, petitioners claim the trial court erred in granting respondents’ demurrer. Petitioners assert (1) the requirement that they pay the tax and file a refund action before seeking judicial relief applies only to state taxes, not local taxes; (2) respondents must be equitably estopped from invoking the “pay first, litigate later” rule because it expressly consented to petitioners’ petition for writ of administrative mandate; (3) their complaint for declaratory relief should have survived demurrer; and (4) federal law preempts the County’s ordinances regarding marijuana cultivation. After initial briefing was complete, we ordered supplemental briefing on several issues, which we detail when necessary to our discussion below.1 1 We ordered supplemental briefing on January 15, 2020, due on February 14; counsel Hugo Torbet immediately requested a continuance which we granted to March 23 with the notation that no further time would be granted. We then granted a second lengthy continuance (requested on March 16) to June 22, noting again that no further time would be granted. On June 15, counsel moved for yet another 90-day continuance, to which respondents filed opposition; we denied the request. Mr. Torbet then submitted his supplemental brief, which opened with a tirade captioned as an “Objection.” This tirade includes, as but one example, Mr. Torbet’s opinion that “there is no good reason why the law libraries are closed, except that in the end, the courts have become complicit in the relentless march towards the effective repeal of the Bill of Rights, freedom being the …

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