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Ardon v. City of Los Angeles

May 28, 2009; as modified June 16, 2009


APPEAL from an order of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC363959).

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


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.

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.


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.

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.*fn1 The complaint set forth counts for declaratory and injunctive relief preventing further improper collection of the TUT (count one),*fn2 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., § 382), an accounting by the City of the TUT funds collected, and prompt return of those monies to the members of the class.

3. The City's Demurrer and Motion to Strike

The City demurred to the entire complaint, asserting, inter alia: there is no authorization for a class action; the California Constitution prohibits courts from enjoining the collection of a tax; and a tax refund is an adequate remedy at law so that an injunction is not available.

The City concurrently filed a motion to strike all class action allegations from the complaint on the ground Ardon was not permitted to file an government claim with the City on behalf of a purported class. The City contended that pursuant to Woosley a class claim for a tax refund is not permitted unless the Legislature has expressly authorized one. Before Ardon could bring a class action lawsuit, the City argued, each member of the purported class was required to have filed an government claim with the City.

The trial court granted the City's motion to strike the class allegations. It also partially overruled and partially sustained the demurrer without leave to amend, and stayed certain causes of action. Ardon filed a timely notice of appeal from the order on the City's motion to strike and demurrer.*fn3


Ardon makes two main arguments on appeal. He first argues that he was required to file a claim in the manner set forth in the Government Claims Act, not in the manner set forth in the Los Angeles Municipal Code. Ardon's second argument is that the trial court erred in interpreting Woosley to prohibit a class action in this case. We agree with Ardon's first contention but do not agree with his second.*fn4


1. Ardon was Required to File a Claim in the Manner Set Forth in the Government Claims Act Prior to Pursuing an Action for a Tax Refund Against the City

Under the Government Claims Act, ―no suit for ‗money or damages' may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have been rejected. (Gov. Code, §§ 905, 945.4.)‖*fn5 (Hart v. County of Alameda (1999) 76 Cal.App.4th 766, 778.) In general, claims for money or damages against a local public entity must be presented in the manner set forth in the Government Claims Act, unless the claim falls within specified exceptions. (See Gov. Code, § 905.) However, if the claim falls into one of the specified exceptions, and the claim is not ―governed by any other statutes or regulations expressly relating thereto, [it] shall be governed by the procedure prescribed in any charter, ordinance or regulation adopted by the local public entity.‖ (Gov. Code, § 935, subd. (a).)

The City contends that Ardon must file a claim under Los Angeles Municipal Code section 21.07 (section 21.07) and former section 21.1.12 (section 21.1.12.) *fn6 Ardon, conversely, contends that sections 21.07 and 21.1.12 are preempted by the Government Claims Act. (Compare Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 78-79 (Batt) with County of Los Angeles v. Superior Court (2008) 159 Cal.App.4th 353, 360-361 (Oronoz).) We need not decide the preemption issue because we hold, for the reasons stated below, that sections 21.07 and 21.1.12 do not apply to the claims asserted by Ardon. Accordingly, Ardon was required to present a claim to the City in the manner set forth in the Government Claims Act.

We interpret sections 21.07 and 21.1.12 de novo (see Bohbot v. Santa Monica Rent Control Bd. (2005) 133 Cal.App.4th 456, 462 (Bohbot)) by the same rules applicable to statutes. (See Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290; Bohbot at p. 462.) Our fundamental task is to ascertain the city council's intent. (See Smith v. Superior Court (2006) 39 Cal.4th 77, 83 (Smith).) The meaning of a provision of a municipal code ― ‗may not be determined from a single word or sentence; the words must be constructed in context . . . .' ‖ (See People v. Shabazz (2006) 38 Cal.4th 55, 67.) Where reasonably possible, we also avoid any construction that renders ―particular provisions superfluous or unnecessary‖ (see Dix v. Superior Court (1991) 53 Cal.3d 442, 459) or that would lead to absurd consequences. (See Smith, at p. 83.)

A. Section 21.07

Section 21.07 is irrelevant to this case. It governs claims for refund of overpayment of taxes ―imposed by Article 1 and 1.5 of Chapter 2 of [the Los Angeles Municipal Code.]‖ (L.A. Mun. Code, § 21.07.) Article 1 pertains to business taxes, and Article 1.5, which is suspended, pertains to use taxes. The TUT appears in Article 1.1. (L.A. Mun. Code, ch. 2, art. 1.1, ...

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