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Loeffler v. Target Corp.

Supreme Court of California

May 1, 2014

KIMBERLY LOEFFLER et al., Plaintiffs and Appellants,
v.
TARGET CORPORATION, Defendant and Respondent

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Superior Court of Los Angeles County, No. BC360004. Michael L. Stern, Judge. Court of Appeal, Second Appellate District, Division Three, No. B199287.

Law Office of Joseph J. M. Lange, Joseph J. M. Lange Law Corporation, Joseph J. M. Lange; Public Justice, Leslie A. Bailey, Victoria W. Ni, Arthur H. Bryant; Lange & Koncius, Kiesel Boucher & Larson, Kiesel Larson and Jeffrey A. Koncius for Plaintiffs and Appellants.

Mastroianni Law Firm and A. Douglas Mastroianni for Jason Frisch as Amicus Curiae on behalf of Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, Frances T. Grunder, Assistant Attorney General, Gordon Burns, Deputy State Solicitor General, Kathrin Sears and Alexandra Robert Gordon, Deputy Attorneys General, for Attorney General of State of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

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Barry D. Keene; Nossaman and William T. Bagley as Amici Curiae on behalf of Plaintiffs and Appellants.

J. Bruce Henderson for the Association of Concerned Taxpayers as Amicus Curiae on behalf of Plaintiffs and Appellants.

The Kick Law Firm, Taras Kick, Thomas A. Segal, Matthew E. Hess, Graig Woodburn and G. James Strenio for Michael McClain, Avi Feigenblatt and Gregory Fisher as Amici Curiae on behalf of Plaintiffs and Appellants.

Harvey Rosenfield, Pamela Pressley and Todd M. Foreman for Consumer Watchdog, Public Good, Consumeraffairs.com and National Association of Consumer Advocates as Amici Curiae on behalf of Plaintiffs and Appellants.

Thorsnes Bartolotta McGuire and Benjamin I. Siminou for Carmen Herr, Heidi Spurgin, Mark Hegarty and Joseph Thompson as Amici Curiae on behalf of Plaintiffs and Appellants.

Morrison & Foerster, Miriam A. Vogel, David F. McDowell and Samantha P. Goodman for Defendant and Respondent.

Reed Smith, Margaret M. Grignon, Douglas C. Rawles and Judith E. Posner for Rite Aid Corp. and Walgreen Co. as Amici Curiae on behalf of Defendant and Respondent.

Holland & Knight and Richard T. Williams for CVS Caremark Corp. and CVS Pharmacy, Inc., as Amici Curiae on behalf of Defendant and Respondent.

Hunton & Williams and Phillip J. Eskenazi for Albertson's Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Wilson Turner Kosmo, Frederick W. Kosmo, Jr., and Theresa Osterman Stevenson for PETCO Animal Supplies Stores, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

Kristine Cazadd, Robert W. Lambert and John L. Waid for state Board of Equalization as Amicus Curiae on behalf of Defendant and Respondent.

Alston & Bird, Andrew E. Paris, Ethan D. Millar and Joann M. Wakana for DIRECTV Inc., as Amicus Curiae on behalf of Defendant and Respondent.

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Edmund G. Brown, Jr., Attorney General, David S. Chaney and Matt Rodriquez, Chief Assistant Attorneys General, and Al Shelden, Deputy Attorney General, as Amici Curiae.

Letwak & Bennett and Stephen H. Bennett as Amici Curiae.

Opinion by Cantil-Sakauye, C. J., with Baxter, Corrigan and Chin, JJ., concurring. Dissenting Opinion by Liu, J., with Werdegar and Moore JJ.[*], concurring.

OPINION

[324 P.3d 53] [171 Cal.Rptr.3d 193] CANTIL-SAKAUYE, C. J.

Plaintiffs are consumers who contend that defendant retailer represented that it properly [324 P.3d 54] was charging and in fact charged them sales tax reimbursement on sales of hot coffee sold " to go," when, according to plaintiffs, the tax code rendered such sales exempt from sales tax. They brought an action against defendant retailer under two consumer protection statutes, seeking a refund of the assertedly unlawful charges, damages, and an injunction forbidding collection of sales tax reimbursement for such sales. The trial court sustained defendant's demurrer without leave to amend, and the Court of Appeal affirmed, concluding that plaintiffs' action was not authorized under the tax code and was barred by article XIII, section 32 of the California Constitution. That provision limits the manner in which taxpayers may seek a refund of taxes from the taxing entity.

We affirm the judgment of the Court of Appeal, although our analysis differs somewhat from that court's analysis. We conclude that the tax code provides the exclusive means by which plaintiffs' dispute over the taxability of a retail sale may be resolved and that their current lawsuit is inconsistent with tax code procedures. As explained, the consumer protection statutes under which plaintiffs brought their action cannot be employed to avoid the limitations and procedures set out by the Revenue and Taxation Code. [1]

I. FACTS AND PROCEEDINGS BELOW

A. Proceedings and arguments in the trial court

Plaintiffs' first amended complaint alleged that defendant Target Corporation (Target) [2] had committed an unfair business practice as defined by the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and an unlawful

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practice in violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). The complaint also alleged a cause of action for violation of section 6359, a provision exempting many food sales from sales tax. Plaintiffs sought class certification. [3]

[171 Cal.Rptr.3d 194] Plaintiffs alleged that " the sale of hot coffee drinks 'to go' or for 'take-out' is not subject to sales tax" under section 6359 and a related regulation adopted by the state Board of Equalization (Board). They alleged that defendant nonetheless charged what the complaint referred to as " sales tax" on purchases of hot coffee to go to two named plaintiffs, and " thus caused [plaintiffs] to suffer monetary loss." (As we shall see, the complaint is inaccurate to the extent it refers to plaintiffs' payment to the retailer as " sales tax." The tax code provides that the retailer is the taxpayer and that it is the retailer which is required to pay sales tax to the state; the retailer is permitted but not required to collect a matching " sales tax reimbursement" from consumers. It is the reimbursement charge that is at issue in the present case.)

Plaintiffs also alleged that " [defendant] falsely and illegally represented to members of the general public that it had the legal right to charge the sales taxes described herein including, but not limited to, oral representations made by [its] agents, and on receipts and registers at [its] facilities."

Plaintiffs alleged that defendant's actions constituted " unlawful, unfair and fraudulent business acts and practices within the meaning [324 P.3d 55] of ... Business and Professions Code section 17200, et seq." It was further alleged that " [b]y [its] actions, [defendant] unfairly and unlawfully increased the costs to Class members in direct contradiction to law. In the event [defendant] retained these monies it unjustly enriched itself at the expense of Plaintiffs, other Class members and the general public and, as such, [defendant's] conduct amounts to unfair competition" and " offends public policy and is immoral, unscrupulous, unethical and offensive, and causes substantial injury." The complaint alleged continuing violations and asserted that defendant " refused to publicly acknowledge [its] improper imposition of the charges, correct [its] wrongdoing, and provide compensation ... ."

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Plaintiffs sought an order enjoining defendant from " improperly charging sales tax to consumers" on hot coffee to go, and from withholding information regarding its practices. Plaintiffs also sought " restitution of any monies wrongfully acquired or retained" and " disgorgement of ... ill-gotten gains obtained by means of ... unfair practices."

Plaintiffs alleged a violation of the CLRA in that defendant " (a) misrepresented the source, sponsorship, approval or certification of [its] charges for sales taxes by indicating to consumers that [it has] ... the legal authority to charge the sales taxes that [it has] ... charged and continue[s] to charge" ; (b) " [misrepresented the] affiliation, connection, or association with, or certification by, another by indicating to consumers that [it has] ... the legal authority to charge the sales taxes ... ; [misrepresented that] the transactions at issue confer or involve rights, remedies, or obligations which [it does] not have or involve, or which are prohibited by law by charging the sales tax" ; and inserted an unconscionable provision into contracts by charging the assertedly improper " sales tax."

Plaintiffs alleged that they had informed defendant by mail of its alleged violation of the CLRA and made a " demand for remedy," but that no remedy has been forthcoming.

Plaintiffs sought an order " enjoining the [defendant] from continuing the methods, acts and practices set out above regarding [its] charging of illegal sales taxes ... ." They sought damages in " the amount of [171 Cal.Rptr.3d 195] sales taxes wrongfully collected from plaintiffs and the Class for the purchase of hot coffee 'to go' or for 'take out,' without being limited thereto" and punitive damages on the ground that " [defendant's] conduct allegedly was willful, oppressive and fraudulent."

Finally, plaintiffs sought an order certifying the class, awarding restitution and disgorgement, enjoining the continuation of " illegal practices," requiring defendant to " inform the public of [its] unlawful practices and enjoining [defendant] from the practices complained of."

Defendant demurred. It objected that plaintiffs' action would call upon the court to order a refund and enjoin collection of the sales tax reimbursement " on the allegedly non-taxable items" " without a determination that Target erroneously paid the tax to the [Board]." Defendant argued that article XIII, section 32 of the state Constitution barred such a proceeding because plaintiffs' lawsuit sought, in effect, " an order preventing the [Board] from collecting this tax" and " remedies not provided for" in the tax code.

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Defendant also argued that consumer remedies regarding sales taxes should be permitted only as specifically provided by the Legislature, asserting that the Board is responsible in the first instance for deciding whether retailers have collected too much sales tax reimbursement from consumers.

In addition, defendant argued that the court should decline to exercise jurisdiction over plaintiffs' claims, but should defer to the Board under the doctrine of primary jurisdiction.

Plaintiffs responded that at the demurrer stage, there was no record of whether Target paid the sales tax it collected to the Board, nor need there be any such allegation in the complaint. Plaintiffs argued that the Legislature had specifically provided that they " may sue Target for illegally charging them sales tax," alluding in support to section 6901.5 and a decision of this court interpreting a predecessor to that statute, Javor v. State Board of Equalization (1974) 12 Cal.3d 790 [117 Cal.Rptr. 305, 527 P.2d 1153] ( Javor ). Section 6901.5, they asserted, afforded [324 P.3d 56] them a private right of action " against those who charge them improper sales taxes."

Plaintiffs further asserted that the state constitutional limitation on lawsuits for tax refunds (Cal. Const., art. XIII, § 32) did not apply, and that the doctrine of primary jurisdiction should not apply.

As for their UCL claim, plaintiffs argued that even if the tax code provided no private right of action, the UCL supplied a basis for their claim. They alleged that violation of section 6359 (exempting many food sales from sales tax), and the statute's related regulation, is " unlawful" and therefore supports their UCL claim.

At the hearing on the demurrer, the trial court observed that " a determination has to be made by the [Board] regarding [any] ... 'refund' ... or 'damages' ... pursuant to sections 6901 [(governing refunds from the Board to retailers)] and 6901.5 [(governing the return of excess reimbursement from consumers)]." It added: " If the [Board] makes a determination, then the case or these causes of action might be ripe for adjudication."

In response, plaintiffs requested leave to amend the complaint to " bring in the Board and then proceed in that manner." There was some discussion of an amendment that would constitute a suit to compel defendant to seek a refund from the Board, but the court warned, " I'm not going to be creative for you. I'm going to allow you to try to amend the first three causes of action to see

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what we get out of it." The court sustained the demurrer [171 Cal.Rptr.3d 196] with leave to amend as to the three causes of action discussed above, formally granted plaintiffs' motion for leave to add the Board as a defendant, and sustained the demurrer without leave to amend as to the money had and received, conversion, and negligent misrepresentation causes of action.

Plaintiffs filed a second amended complaint, but this complaint did not add the Board as a defendant. Their amended complaint simply added a few details concerning plaintiffs' purchases, and alleged that defendant Target never inquired whether the named plaintiffs' coffee purchases were to go, thereby depriving plaintiffs of the " opportunity to avoid being wrongfully charged the taxes at issue."

Defendant once more demurred, repeating that the remedies plaintiffs sought were unavailable under the state Constitution because the injunctive remedy essentially would prevent the Board from collecting the tax, and a restitution award would afford tax relief in a manner not established by the Legislature. Defendant maintained that section 6901.5, a provision that governs reimbursement refunds, does not create a private right of action for consumers, but instead contemplates that consumers should apply to the Board to, in the words of the statute, " ascertain[]" whether retailers should make any refund to consumers. Defendant also repeated its assertion that the court should decline to exercise its equitable power under the doctrine of primary jurisdiction.

At the hearing on the demurrer, the trial court commented that the second amended complaint was " dé jà vu all over again." The court explained that the question whether plaintiffs were appropriate " complainants" had not been answered and stated that " [n]either the statutory [scheme] nor any case authority allows you to go forward with this type of action unless there's been, at the very least--and I don't have an opinion about this--some request to the tax court ... ."

Plaintiffs responded first that " regardless of whether the ... [Board] should be involved, the representation by [defendant] to its customers that they are paying a sales tax when in fact, they are not is an unfair business practice." Second, plaintiffs disputed the significance of the question of the Board's " jurisdiction over this claim." Plaintiffs asserted that the court had assumed that defendant had paid the Board sales tax on sales of hot coffee, but " the complaint doesn't allege that" and it is wrong for the " court [to] make that assumption." Third, counsel for plaintiffs stated that " what some courts have done in this circumstance that I've been involved with is that they stay the case, advise us to go seek the refund from the [Board], and inevitably when that answer is 'no,' we can come back and then we are allowed to go forward with our case."

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[324 P.3d 57] Defendant countered that plaintiffs had chosen the wrong way to go about their claim, and objected to the idea of staying the case, permitting plaintiffs to seek reimbursement from the Board, then returning to court. On the contrary, defendant argued, plaintiffs may do no more than was authorized in our Javor decision (see Javor, supra, 12 Cal.3d 790), in which we permitted consumers to bring an action to require retailers to seek a sales tax refund from the Board. Defendant emphasized that plaintiffs had exhibited no interest in taking such a course.

The court sustained the demurrer to the second amended complaint without leave to amend and dismissed the case with prejudice, stating that it agreed with " much" of defendant's argument and written pleadings.

[171 Cal.Rptr.3d 197] B. Arguments on appeal, and the Court of Appeal's decision

Plaintiffs appealed, contending primarily that section 6901.5 afforded them a private right of action against defendant. Despite their concession at the hearing on the first amended complaint that the demurrer should be sustained without leave to amend as to the cause of action for money had and received, they also contended they had adequately pleaded that cause of action.

In response, defendant contended that the suit was barred by the California Constitution, and that section 6901.5 does not provide for a private right of action. It also disputed plaintiffs' claim concerning the money had and received count.

In reply, plaintiffs denied that article XIII, section 32 of the state Constitution applied to their suit, insisted that the language of section 6901.5 authorized their lawsuit, and argued that even if a Board determination was a prerequisite to their suit, the trial court should have stayed the action under the doctrine of primary jurisdiction.

The Court of Appeal affirmed the judgment in favor of defendant. It rejected plaintiffs' claim that the tax code itself afforded them a private right of action against retailers, and concluded that their UCL and CLRA claims were inconsistent with article XIII, section 32 of the state Constitution.

The Court of Appeal pointed to the tax code's comprehensive sales tax scheme and its intertwining provisions governing retailers. It emphasized that it is retailers who pay sales tax to the state, and that under the tax code, it is retailers who may file a claim with the Board seeking a refund of overpaid

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sales tax. Customers, the court pointed out, lack standing to file a claim with the Board for a tax refund. The Court of Appeal rejected plaintiffs' reliance upon section 6901.5 as a basis for a private right of action against the retailer. It declared that the statute makes some provision for the refund of excess tax reimbursement amounts to consumers, but the statute and related regulation do not provide a private right of action for consumers. On the contrary, the reviewing court declared that nothing in section 6901.5 " affirmatively indicates the intent of the Legislature to authorize a private action by a customer against a retailer. ... Rather, the statute relates to a claim with the Board" --not a lawsuit--and the statute and related regulation direct a retailer to make a refund to customers if the Board has " 'ascertained' " that one is due.

The Court of Appeal believed that the Legislature has vested in the Board the authority to enforce the sales tax law, and that it would undermine the statutory scheme to permit customers to unilaterally " 'ascertain' " when excess sales tax reimbursement had been collected. The court stated that plaintiffs' contrary claim " would disrupt the administration of the sales tax laws because it would allow customers to usurp the authority of the Board to determine the application of the law in the first instance." The reviewing court pointed out that the Board has not had an opportunity to ascertain whether sales tax was due on defendant's sale of hot coffee to go, nor has it ascertained whether any reimbursement is due under section 6901.5.

Moreover, according to the Court of Appeal, plaintiffs are trying to use the UCL and CLRA to resolve a sales tax dispute, but " [t]his they cannot do under article XIII, section 32" of the state Constitution. In the [324 P.3d 58] appellate court's view, constitutional restrictions would not permit a consumer action seeking to declare a particular sale exempt from tax, because a resulting [171 Cal.Rptr.3d 198] award in favor of consumers could afford a tax refund in a manner not specifically authorized by the Legislature. The court also believed that constitutional principles would not permit an injunction against defendant's collection of sales tax reimbursement, because such an injunction could curtail tax collections.

The Court of Appeal summarized its constitutional analysis and holding as follows: " Article XIII, section 32 prohibits injunctions against the collection of state taxes and provides that refunds of taxes may only be recovered in a manner provided by the Legislature. As our Supreme Court explained in Woosley v. State of California (1992) 3 Cal.4th 758, 792 [13 Cal.Rptr.2d 30, 838 P.2d 758] ( Woosley ), under California Constitution, article XIII, section 32,

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the courts cannot expand the methods for seeking tax refunds expressly provided by the Legislature. The purpose of this constitutional provision is to ensure that governmental entities may engage in fiscal planning so that essential public services are not unnecessarily interrupted. [¶ ] ... [¶ ]

" The complaint also alleges causes of action under unfair business practices and consumer protection statutes and a cause of action for money had and received. Plaintiffs seek damages, restitution and injunctive relief pursuant to these causes of action. However, plaintiffs are attempting to resolve a sales tax dispute by using consumer and common law remedies rather than the procedure set forth by the Legislature. This they cannot do under article XIII, section 32.

" Plaintiffs argue that they are not violating article XIII, section 32, because they do not seek to enjoin the state from collecting sales taxes. Rather, plaintiffs contend, they seek to enjoin a private company from collecting sales tax reimbursement. Plaintiffs further contend that article XIII, section 32 is not implicated because they only seek a refund of sales tax reimbursement, not a refund of sales taxes.

" We reject plaintiffs' argument and find that a court may not directly or indirectly enjoin or prevent the collection of a sales tax. As we will explain, the statutory schemes for sales taxes and sales tax reimbursement are intertwined. A determination by a court that sales tax is not due on 'to go' hot coffee purchases from Target, and an injunction against the collection of sales tax reimbursement by Target on such purchases, is effectively an injunction against the collection of sales tax by the state. Further, under article XIII, section 32, plaintiffs cannot circumvent the statutory scheme for sales tax reimbursement refunds by asserting causes of action not contemplated by that scheme. We therefore affirm the judgment and hold that plaintiffs' action is barred by article XIII, section 32 and the sales tax statutes in the Revenue and Taxation Code."

C. Parties' claims

We granted plaintiffs' petition for review. Plaintiffs challenge the Court of Appeal's constitutional analysis, and contend that UCL and CLRA remedies are cumulative to any remedy or procedure that is available under the tax code. Plaintiffs have now stated that they do not challenge that part of the Court of Appeal's decision rejecting their own claim in that court that the tax code, and specifically section 6901.5, provided them with a private right of action against defendant. On the contrary, in this court plaintiffs argue that the

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absence of a private right of action for consumers under the tax code makes it imperative that this court recognize their remedies under the UCL and CLRA. They contend, too, that the Court of Appeal's decision would undermine UCL and CLRA actions in general and [171 Cal.Rptr.3d 199] would leave consumers who are charged unauthorized or excessive sales tax without a remedy.

Defendant contends that the Court of Appeal correctly analyzed the constitutional and statutory provisions and properly concluded that plaintiffs' action is barred.

II. DISCUSSION

On appeal, " [w]hen a demurrer [has been] sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide [324 P.3d 59] whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." ( City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 [62 Cal.Rptr.3d 614, 161 P.3d 1168]; see Code Civ. Proc., § 430.10, subd. (e).) We follow the well-settled rule that " [w]hen reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations." ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [6 Cal.Rptr.3d 457, 79 P.3d 569].) On the other hand, the reviewing court " does not ... assume the truth of contentions, deductions or conclusions of law." ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].)

We summarize our conclusions, which depend upon a proper understanding of both the procedural and substantive aspects of the governing sales tax provisions. The clear basis of plaintiffs' action--that Target represented that it properly was charging and in fact charged sales tax reimbursement on a sale that plaintiffs believe the tax code exempted from taxation--requires resolution of a sales tax law question, that is, whether Target's sales of hot coffee to go to plaintiffs were subject to sales tax or fell within an exemption. That question, which we may characterize as the " taxability" question, is committed in the first instance to the Board, subject to judicial review under the restrictions and pursuant to the procedures provided by the tax code. A UCL or CLRA cause of action such as plaintiffs' cannot be reconciled with the primary decisionmaking role that the tax code vests in the Board with respect to tax issues. Moreover, section 6901.5 provides a safe harbor for a retailer/taxpayer who remits reimbursement charges to the Board. For these reasons, the tax code precludes claims such as plaintiffs'.

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Although in the past we have permitted consumer intervention into the sales tax scheme in limited circumstances and only by means of a judicial proceeding to compel the retailer/taxpayer to seek a refund from the Board (see Javor, supra, 12 Cal.3d 790), such a remedy invokes, rather than avoids, ...


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