Ardon v. City of LA 5/28/09 CA2/3

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2009 » Ardon v. City of LA 5/28/09 CA2/3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B201035

Case Date: 09/10/2009

Preview:Filed 5/28/09

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

ESTUARDO ARDON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

B201035 (Los Angeles County Super. Ct. No. BC363959)

APPEAL from an order of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed. Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & Laduca, Jon Tostrud; Chimicles & Tikellis, Timothy N. Mathews for Plaintiff and Appellant. Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & Laduca, Jon Tostrud; Chimicles & Tikellis andTimothy N. Mathews for Willy Granados and John W. McWilliams as Amici Curiae on behalf of Plaintiff and Appellant. Patricia Sturdevant; Wilentz, Goldman & Spitzer, P.A., Kevin P. Roddy; Timothy Bittle for NASCAT, Howard Jarvis Taxpayers Association, Consumer Federation of California and Utility Reform Network as Amici Curiae on behalf of Plaintiff and Appellant. Huskinson, Brown, Heidenreich & Carlin and Paul E. Heidenreich, as Amicus Curiae on behalf of Plaintiff and Appellant.

Edward M. Teyssier; Joseph D. Henchman for the Tax Foundation as Amicus Curiae on behalf of Plaintiff and Appellant. Rockard J. Delgadillo, City Attorney, Noreen S. Vincent, Assistant City Attorney, Brian I. Cheng, Deputy City Attorney; Orrick Herrington & Sutcliffe, William Molinski, Valerie M. Goo, Frank D. Rorie; Colantuono & Levin, Michael G. Colantuono, Sandra J. Levin and Amy C. Sparrow for Defendant and Respondent. Dennis J. Herrera, City Attorney (San Francisco), Julie Van Nostern, Chief Tax Attorney, Peter J. Keith, Deputy City Attorney for The League of California Cities, The California State Association of Counties, and The California Special Districts Association as Amici Curiae on behalf of Defendant and Respondent. Raymond G. Fortner, Jr., County Counsel (Los Angeles), Albert Ramseyer, Principal Deputy County Counsel,for the County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

Plaintiff and appellant Estuardo Ardon (Ardon) appeals an order striking his class action allegations in an action against the City of Los Angeles (City). Ardon contends the City`s telephone users tax (TUT) is an illegal tax. He seeks on behalf of himself and all others similarly situated a refund of TUT. We affirm. The City and Ardon agree that a prerequisite to pursuing a tax refund action is that the plaintiff must first file a government claim with the City. The primary issue in this appeal is whether Ardon was entitled to present a single claim to the City on behalf of himself and the entire class, or whether each member of the purported class is required to file an individual claim with the City prior to filing suit. Ardon contends he properly filed a government claim with the City on his own behalf and on behalf of the class he purports to represent. The City contends Ardon is limited to filing an individual claim on his own behalf. We hold that Ardon cannot present a claim on behalf of the entire purported class.

2

In Woosley v. State of California (1992) 3 Cal.4th 758, 792 (Woosley), our Supreme Court held that article XIII, section 32 of the California Constitution (article XIII, section 32) prohibits the courts from expanding the methods for seeking tax refunds expressly provided by the Legislature. The policy underlying article XIII, section 32 is that strict legislative control over the manner in which tax refunds may be sought is necessary so that governmental entities may engage in fiscal planning. Here, the applicable claims statute is Government Code section 910 (section 910), which does not expressly allow a class action claim. Under Woosley and the policy underlying article XIII, section 32, Ardon cannot assert a class claim under section 910 for a tax refund. FACTUAL AND PROCEDURAL BACKGROUND 1. Ardon's government claim. On October 19, 2006, Ardon presented a claim to the City, on behalf [of] himself and all similarly situated taxpayers in the City of Los Angeles, requesting cessation of the collection of TUT and the return of monies collected under the tax during the prior two years. Ardon claims that the Los Angeles Municipal Code exempts from the TUT all amounts paid for telephone services to the extent those amounts are exempt from the Federal Excise Tax (FET). Because the FET was allegedly improperly collected, Ardon contends, so too was the TUT. On December 7, 2006, the city attorney responded to Ardon`s claim: To the extent that the October 19 letter presents a tax refund claim against the City by Mr. Estuardo Ardon, notice is hereby given that the claim is rejected by the City. To the extent that the letter attempts to present a tax refund claim on behalf of a class, that purported claim is denied as well, in part on the basis that there is no legal standing to file a claim on behalf of a class. On December 27, 2006, Ardon filed suit against the City.

3

2.

Ardon's operative pleading.

On March 29, 2007, Ardon, on behalf of himself and all others similarly situated, filed a corrected first amended class action complaint for declaratory, injunctive, monetary and other relief.1 The complaint set forth counts for declaratory and injunctive relief preventing further improper collection of the TUT (count one),2 declaratory relief regarding the alleged unconstitutional amendment of the TUT (count two), money had and received (count three), unjust enrichment (count four), violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution (count five), and a claim for writ of mandamus (count six). By way of relief, the complaint sought, inter alia, certification of the matter as a class action (Code Civ. Proc.,

Download Ardon v. City of LA 5/28/09 CA2/3.pdf