The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are the Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) filed by Defendant City of San Diego (ECF No. 3) and the Motion for Abstention filed by Plaintiff Swift Frame (ECF No. 10).
In this case, a City of San Diego business seeks a refund of certain taxes paid pursuant to a tax imposed by the City of San Diego. On December 24, 2009, Plaintiff Swift Frame initiated this action by filing a Complaint in the Superior Court of California for the County of San Diego. (ECF No. 1-1 at 5). Plaintiff asserted claims: (1) for "[d]amages - refund of illegally imposed and collected taxes" in violation of Cal. Const. Art. XIII C, section 2; (2) for unjust enrichment; (3) for violations of public policy pursuant to Cal. Const. Art. I section 7; (4) for an accounting and imposition of constructive trust; (5) for a refund under California Government Code section 910 et seq.; and (6) for declaratory relief that the processing tax at issue was unconstitutional. (ECF No. 1-1 at 16-20). On January 25, 2010, Defendant filed a demurrer. Id. at 46.
On March 23, 2010, before the Superior Court ruled on the demurrer, Plaintiff filed a First Amended Complaint. Id. at 65. Plaintiff asserted claims: (1) for declaratory relief that businesses were entitled to a refund of the taxes paid during the prior twelve months; (2) for injunctive relief "to forestall the City from spending the surplus Processing Fee revenues"; (3) for a constructive trust; and (4) for "an accounting of City's surplus processing fees collected." Id. at 81-82.
On April 22, 2010, Defendant filed a demurrer to the First Amended Complaint. Id. at 124. On July 21, 2010, the Superior Court Judge issued an order stating:
Plaintiffs have stated a cause of action for a refund of the fees paid to the Defendant within the last twelve months. Pursuant to the Government Claims Act, no suit for money damages may be brought against a public entity until a written claim has been presented and acted upon. Any claim relating to a cause of action other than for injury or death must be presented within one year after the accrual of the cause of action. Because the primary purpose of the suit is to obtain a refund of the processing fees paid to Defendant, section 911.2 of the Government Code applies. Plaintiff Swift Frame presented its claim for a refund to the Defendant on September 28, 2009. Accordingly, the [First Amended Complaint] properly states a cause of action for a refund of the fees paid to Defendant since September 28, 2008. (ECF No. 1-2 at 29) (citations omitted).
On August 16, 2010, Plaintiff filed an "Amendment to First Amended Complaint (Amending all of the First Amended Complaint except for the Exhibits)." Id. at 37. Plaintiff asserted claims: (1) for "[m]oney had and received" seeking a refund of the taxes paid during the prior twelve months; (2) for fraud on the grounds that the City misrepresented the purpose of the tax; (3) for conversion on the grounds that the City intentionally and wrongfully collected the tax; and (4) for a mandate directing the City to refund the tax. On September 16, 2010, Defendant filed a demurrer. Id. at 51. On December 13, 2010, the Superior Court sustained the demurrer dismissing all claims. (ECF No. 1-3 at 39-41).
On December 27, 2010, Plaintiff filed a Motion to Reconsider and Vacate Ruling on Demurrer and to File Proposed Second Amended Complaint. Id. at 48. Plaintiff's Second Amended Complaint asserted three claims pursuant to 42 U.S.C. § 1983.
On February 18, 2011, the Honorable Superior Court Judge issued an order permitting Plaintiff's Second Amended Complaint to be filed. (ECF No. 1-6 at 66-67). On February 24, 2011, Plaintiff Swift Frame's Second Amended Complaint was filed in the Superior Court.
On March 7, 2011, Defendant City of San Diego removed the matter to this Court on the grounds that the Court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question. On March 15, 2011, Defendant City of San Diego filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. (ECF No. 3). Plaintiff Swift Frame filed an Opposition. (ECF No. 11). On April 11, 2011, Defendant City of San Diego filed a Reply. (ECF No. 9).
On April 17, 2011, Plaintiff Swift Frame filed a Motion for Abstention pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) on the grounds that "this case turns on the identical issues underlying rulings pending in state proceedings." (ECF No. 10-1 at 4). On May 10, 2011, Defendant City of San Diego filed an Opposition. (ECF No. 14). On May 17, 2011, Plaintiff Swift Frame filed a Reply asserting that the Court should abstain pursuant to Railroad Comm'n v. Pullman, 312 U.S. 496 (1941), not the Colorado River doctrine. (ECF No. 16).*fn1
II. Allegations of the Second Amended Complaint
Defendant City of San Diego established a "Processing Tax" by resolution of the City Council on June 28, 2004 which "was in fact an illegal tax." (ECF No. 1-6 at 26, 28). "The Resolution adopted the Processing Tax as a single levy applicable alike to business license applications, business license renewals, and rental unit taxes." Id. The "Processing Tax" was imposed for revenue generation without a vote of the electorate. The City collected the "Processing Fee" ...