Fellow tax scam artist and Quatlooser Bill Conklin has this to say about Peymon: "Number Two in the Weasel Hall of Shame is Peymon Mottahedeh of Freedom Law School, which I have renamed Scams R Us. This man is especially dangerous because he is very charismatic when he speaks. But Peymon Mottahedeh is a WEASEL of the first order. Stay away from him. He ranks right up there -- er, I mean 'down there' -- with Judge Rizzo." Conklin goes so far as to suggest for people to file a complaint with the California Bar Association against Peymon and his bogus "Freedom Law School" and even provides the complaint form! See http://www.anti-irs.com/hall_of_shame.htm Notwithstanding this endorsement, Freedom Law School sells Conklin's book "Why No One Is Required to File Tax Returns" online. Go figure.

Of course, when we say that Peymon and Freedom Law School sell any of this stuff we really mean it -- cash, check or money orders only. Their order form humorously explains: " Send check or money order with the 'pay to' line left BLANK, or preferably, send CASH. Please see the U.S. Supreme Court ruling on page 26 of why we MUST use CASH to protect your's and our privacy." Page 26 of what? Must be the federal tax liens that Devvy claims to have the records of that Peymon is unable to discharge. Oh well -- we're only amazed that they don't suggest to any sucker who would buy their stuff that they leave the amount blank too because of the "U.S. Supreme Court ruling on page 26". Probably, Peymon just never thought of this.

---

PEYMON MOTTAHEDEH ET AL., Plaintiffs and Appellants,
v.
FRANCHISE TAX BOARD, Defendant and Respondent.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

April 27, 2005

APPEAL from a judgment (order of dismissal) of the Superior Court of Los Angeles County. Ralph W. Dau, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC287897).

Law Offices of Tabone and Derek L. Tabone for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, W. Dean Freeman, Lead Supervising Deputy Attorney General, and Stephen Lew, Deputy Attorney General, for Defendant and Respondent.

The opinion of the court was delivered by: Mallano, J.

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

Five plaintiffs1 who were involved in income tax disputes with the Franchise Tax Board (the FTB) sought damages and injunctive relief against the FTB for its alleged violations of the Information Practices Act (IPA or Act) (Civ. Code, § 1798 et seq.). The trial court sustained the FTB's demurrer to the complaint without leave to amend. We affirm the order of dismissal. The claims for damages based on the FTB's alleged use of non-personal information to determine the plaintiffs' tax liabilities do not state viable claims under the IPA. Although the plaintiffs may have stated viable damage claims based on the FTB's alleged violations of the IPA provisions involving notification, access to records and the right to request amendment and correction of the records, the demurrer nevertheless was properly sustained for failure to allege compliance with the Government Claims Act. And injunctive relief is barred by Revenue and Taxation Code section 19570.

BACKGROUND

We review a trial court's ruling on a demurrer independently to determine whether the complaint states a cause of action. (Bates v. Franchise Tax Bd. (2004) 124 Cal.App.4th 367, 375 (Bates).) The appellate court accepts as true the complaint's properly pleaded allegations, but not the contentions, deductions or conclusions of fact or law. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300-301.) The judgment must be affirmed if any one of the several grounds of the demurrer is well taken. (Weber v. United Parcel Service, Inc. (2003) 107 Cal.App.4th 801, 803.) We review the propriety of the trial court's ruling, not the trial court's reasoning. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825.)
" `The Information Practices Act, enacted in 1977, generally imposes limitations on the right of governmental agencies to disclose personal information about an individual. [Citations.] "The statute was designed by the Legislature to prevent misuse of the increasing amount of information about citizens which government agencies amass in the course of their multifarious activities, the disclosure of which could be embarrassing or otherwise prejudicial to individuals or organizations." [Citation.]' [Citation.]" (Bates, supra, 124 Cal.App.4th at p. 373.) "`Under the Act, state agencies are required to limit the collection and retention of personal information to that necessary to accomplish the agency's specific purpose ([Civ. Code,] § 1798.14). If an agency maintains such a record (§ 1798.32), individuals must be informed when they request it.' [Citation.]" (Bates, supra, 124 Cal.App.4th at p. 373.)

In their opening brief, plaintiffs disavow an attempt to attack the determinations regarding their tax liabilities and an intent to enjoin any tax collection or related procedure. In their reply brief, plaintiffs assert that the gravamen of their action is "that the information that the FTB seeks, acquires, maintains, uses and discloses (or fails to disclose) and fails to correct in the process of assessing and collection of [taxes] is subject to strict controls and enforcement mechanisms through the IPA." Accordingly, in summarizing the complaint, we ignore all allegations except those relating to violations of the IPA.

The 54-page complaint contains 250 paragraphs and 10 causes of action, but only 6 causes of action are at issue on this appeal. (See fn. 1, ante.) Although each plaintiff alleges facts specific to his or her situation, the allegations can be grouped according to the type of IPA violation and fall into three categories: (1) use of non- personal information, (2) notification, and (3) access to, and correction of, records.

With respect to the first category, Mottahedeh, Harbour, and Meredith allege that the FTB violated the IPA by collecting, maintaining and using non-personal information to make adverse determinations of their tax liabilities, deficiencies, and assessments.

With respect to the second category, all plaintiffs allege that the FTB sent them demands for tax returns or other documents which failed to contain the proper "Privacy Notice" required by Civil Code section 1798.17.2

With respect to the third category, all plaintiffs except Harbour allege that they made requests for information or documents under Civil Code section 1798.34 and that the FTB responded without providing the information or documents, a violation of Civil Code section 1798.16.3 And all plaintiffs allege that the FTB violated Civil Code section 1798.35 by failing to respond to their requests that the FTB delete, correct, or amend allegedly inaccurate information in their files.4

The tenth cause of action, asserted by all plaintiffs, incorporates all previous allegations and seeks injunctive relief based on the FTB's alleged "pattern and practice of willful, deliberate and ongoing violation of the IPA. . . ."

The FTB demurred to the complaint on the following grounds, among others: (1) plaintiffs' claims for damages are not viable because they fail to allege that they complied with the written claim presentation requirement of the Government Claims Act (Gov. Code, § 900 et seq.); (2) the allegations pertaining to the FTB's use of non-personal information fail to state a viable claim because the IPA applies only to personal information; and (3) Revenue and Taxation Code section 19570 bars plaintiffs' action.5

Plaintiffs filed opposition to the demurrer, the FTB filed a reply memorandum, and oral argument was held on the demurrer. The trial court sustained the demurrer without leave to amend, and an order of dismissal was filed.6 Plaintiffs appealed from the order of dismissal.

DISCUSSION

A. Use of Non-Personal Information

Plaintiffs concede in their reply brief that the IPA does not apply to non-personal information, and we agree. "The IPA is designed to control the government's use of personal information about an individual, and the Revenue and Taxation Code expressly authorizes the use of non-personal information to estimate income for taxpayers who decline to provide information by way of a tax return. ¶ . . . The Revenue and Taxation Code provisions governing the estimation of income for persons who do not file tax returns, and the related provisions for the assessment and collection of taxes based on that estimate, are not superseded by the IPA. Since they are not, we conclude that the plaintiffs cannot state a violation of the IPA based on the defendants' use of non-personal information to assess and collect taxes." (Bates, supra, 124 Cal.App.4th at pp. 376-377.)

Plaintiffs interpret Civil Code section 1798.14 as precluding the FTB from using non-personal information to make decisions concerning their tax liability. Section 1798.14 provides: "Each agency shall maintain in its records only personal information which is relevant and necessary to accomplish a purpose of the agency required or authorized by the California Constitution or statute or mandated by the federal government." Plaintiffs misinterpret the statute. When viewed in the context of the entire statutory framework, it is clear that the statutory language is intended to limit the type of personal information agencies may maintain. No language in the statute pertains to or purports to regulate an agency's use of non-personal information. (See Bates, supra, 124 Cal.App.4th at p. 377.)

We conclude that plaintiffs' claims for damages based on the use of non-personal information do not state viable claims for violation of the IPA. The demurrer was properly sustained as to this theory of liability.

B. Violation of Provisions for Notice and Access to and Correction of Records

To the extent that plaintiffs may have asserted viable damage claims based on the FTB's violation of the provisions of the IPA relating to notice, access to records, and the right to request amendment and correction of records, we conclude that these claims are barred "because plaintiffs failed to allege their compliance with the Government Claims Act, a prerequisite to a damages action against the State. . . . Failure to allege compliance with the claims statute renders the complaint subject to general demurrer." (Bates, supra, 124 Cal.App.4th at p. 382.)

Plaintiffs' arguments that Civil Code section 1978.70 supersedes the Government Claims Act and that the IPA's own administrative procedures excuse their compliance with the Government Claims Act were extensively analyzed and rejected in the Bates case, and we also reject their arguments for the reasons set out in Bates. (Bates, supra, 124 Cal.App.4th at pp. 383-385.) Plaintiffs do not contend that they could amend their pleading to allege compliance with the Government Claims Act, so the demurrer was properly sustained as to the damage claims without leave to amend.

C. Injunctive Relief

Revenue and Taxation Code section 19570 (section 19570) became effective on January 1, 2003. The instant complaint was filed on December 31, 2002. Plaintiffs contend that section 19570 is not retroactive and their claims are outside any protection provided by that statute. We reject plaintiff's contention with respect to their claims for injunctive relief.

"It is settled law that the rights of the parties in an action in equity will be determined on the basis of the law as it exists at the time of the determination, rather than at the time the complaint was filed, and this rule applies to judgments on appeal as well as to judgments in the trial court. [Citation.] . . . It is an established rule of law that on appeals from judgments granting or denying injunctions, the law to be applied is that which is current at the time of judgment in the appellate court." (City of Whittier v. Walnut Properties, Inc. (1983) 149 Cal.App.3d 633, 640.) "`Relief by injunction operates in [the future], and the right to it must be determined as of the date of the decision by an appellate court.'" (White v. Davis (1975) 13 Cal.3d 757, 773, fn. 8.)

Section 19570 specifically states that the provisions of article 9 of chapter 1 of title 1.8 of the Civil Code do not apply to matters related to income tax liability. (See fn. 5, ante.) Included in article 9 is section 1798.47, which authorizes injunctive relief to prevent an agency's violation of the IPA.7 A failure to apply section 19570 to the claims for injunctive relief would sanction the issuance of an injunction in a situation where the Legislature has determined that such relief is not now available. Because the injunctive relief sought by plaintiffs is no longer available, the demurrer was properly sustained to the plaintiffs' claims for injunctive relief.

For all of the foregoing reasons, the demurrer was properly sustained without leave to amend.

DISPOSITION

The judgment (order of dismissal) is affirmed. Respondent Franchise Tax Board is entitled to costs on appeal.

We concur: SPENCER, P. J., SUZUKAWA, J.8

FOOTNOTES

---

Thurston Bell says Freedom Law School are Scam Artists

from http://www.nite.org/docs/academic-deficiency.htm

Notice of Academic Deficiency

5.12.2001

There just seems to be an endless number of people out here on the internet, who, without credentials, positive accomplishments, or evidence of prior experience or knowledge of their work on the Internet, and who also believe that they have some argument "worthy" of hearing by the federal courts, will ask that YOU send them some money. There are in fact SO MANY of these people, that I could spend every day for the rest of my life arguing against and exposing them. This will do nothing but serve the wishes of the Treasury Department.

I have to learn to trust that individuals can be responsible for themselves, can show prudence, and judge that which is sent to them over the World Wide Web.

When it comes to IRS lawsuits, I can only share a few points of certainty regarding the issues of lawsuits.

A: The Federal Courts do NOT want to rule in YOUR favor because;

B: No Federal Judge wants to be the Federal Judge who collapses the House of Cards known as the Economic Stabilization Program.

C: The Government and the Judge will use Rule 12(b)(6) to throw your case out at the drop of a hat. That rule is: Failure to state a claim for which relief can be granted.

D: The Courts and the Government will look for the weakest point of your argument and they will rule on that one and ignore the rest of the issues.

So, if someone is sending an e-mail regarding wanting money from you to help support a case where there is no specifically damaged plaintiff and there are multiple arguments, I will not respond to such e-mails.

If you are seriously considering spreading news of or financially supporting the ideas of such people who have discovered the Internet as a means of conning people out of money, instead of sending me their e-mail please write back to them and ask them what their credentials are, what results have they had, what is their area of expertise and experience, and do they have references from anyone that you might hold in esteem.

This how the Establishments of Academia control discussions and discourse. (References are important.) And believe me folks, if someone out there was doing something that you needed to know about, I would have told you already. And if they don't have the guts to come to me directly and seek counsel with people like me who have results, they certainly are NOT worth your time and effort.

Thurston P. Bell
Founder

PLEASE NOTE:

NITE has VERY strict standards about following the letter of the Law. The people and organizations listed below use arguments that the courts have already deemed frivolous, and make all sorts of claims with no results to show for themselves. While some have truth mixed in with lies, there is just enough truth to get people tangled into their web. Some of these people are academic plagiarists who have been using NITE's work product and claiming it as their own and / or intermingling our argument with frivolous res judicata patriot arguments. Many of these people / organizations are networked (i.e. working together). A few of them are SHAM trust salesmen / women. Therefore, we can truthfully say that from our experience and first hand knowledge, the following people are "Snake Oil" peddlers and / or CON-men/women who do not deserve your trust:

Al Adask;
Al Beyer;
Al Thompson;
American Rights Litigators;
American Tax Consultants;
Barry Konicov;
Big Al;
Bill Benson;
Bill "William" Conklin;
Bill Drexler;
Bob Schulz;
Brad Barnhill;
Bruce Hatcher;
Chad Prater;
Christopher H. Hansen;
Christopher M. Hansen;
Dale Livingston;
Dan Meador;
Dave Bosset;
Dave Champion;
Dennis MacPhaeddon ;
Devvy Kidd;
Dick Simkanin;
Don Proctor;
Ed Akehurst;
Eddie Kahn;
Ed "Eduardo" Rivera;
Edmund Fitzsimmons;
Erwin Rommel School of Law;
Fairtax;
Financial Fortress;
Financial Prosperity;
Freedom Above Fortune;
Freedom Hall;
Freedom Law School;
Free Enterprise Society;
Gordon Phillips;
Howard Freeman;
Inform America;
Institute of Global Prosperity;
IRS Decoder;
Inhabitant;
Irwin Schiff;
Jeff Dickstein;
Jack Cohen;
Jim Deal;
John Feld;
John Gliha;
John Hecht;
John B. Kotmair;
Joseph Banister;
Joy Foundation;
Justin Garriott;
Ken "The Hornet" Hunter;
Lamar Hardy, Hawaii;
Larry "Lowell" Becraft;
Law Research Registry;
Les Hollingshead;
Lynda Wahl;
Lynn Meridith;
Marcia Doerr;
Mel Stamper;
Pat Patton;
Paul Lienthall;
PreferredServices;
Richard Cornforth;
Richard Standring;
Right Way Law;
Save-A-Patriot Fellowship (SAPF);
Sean O'Hara;
Solutions Group;
Steve DeLuca (S.T. Fitzgerald, Thomas Luca, other alisases)
Steven Swan;
Steven Beresford;
Supreme Law Firm;
Tax Ax;
Taxgate.com (NOT Tax-Gate.com);
Tax Statement;
The Informer;
Tom Scambos;
Tom Smith (Alleged Doctor);
Treasury Tax Secrets;
Virginia Cropsey a/k/a Little Red Hen
Wallace Institute ( A Disgrace to William Wallace and Clan Wallace);
Wayne C. Bentson
"We The People Foundation"

Review Pending
Paul Sulla, Attorney

People who do not seem to understand have not seen as many people as Mr. Bell has seen, get hurt. They lose their property, jobs, paychecks, and / or families. They obviously do not have the discernment to understand how vitally important this issue is, and how we MUST stay on point or lose.

There is no room for those who claim it is their 1st Amendment Right for supporting people who are espousing such res judicata arguments. The courts and the Kotmair case made it clear. Guilt by association is NOW supported by CASE LAW.