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McClain v. Drugs

California Court of Appeals, Second District, Second Division

March 13, 2017

MICHAEL McCLAIN et al., Plaintiffs and Appellants,
v.
SAV-ON DRUGS et al., Defendants and Respondents.

          Order Filed Date 4/10/17

         APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BC327216 & BC325272 John Shepard Wiley, Jr., Judge. Affirmed.

          The Kick Law Firm, Taras P. Kick, G. James Strenio; McKool Smith Hennigan, Bruce R. MacLeod and Shawna L. Ballard for Plaintiffs and Appellants.

          Reed Smith, Douglas C. Rawles, James C. Martin and Kasey J. Curtis; Morgan Lewis & Bockius, Joseph Duffy and Joseph Bias for Defendants and Respondents Walgreen Co. and Rite Aid Corporation.

          Berry & Silberberg, Robert P. Berry and Carol M. Silberberg for Defendant and Respondent Wal-Mart Stores, Inc.

          Morrison & Foerster, David F. McDowell and Miriam A. Vogel for Defendant and Respondent Target Corporation.

          Holland & Knight, Richard T. Williams and Shelley Hurwitz for Defendants and Respondents CVS Caremark Corporation, Longs Drug Stores Corporation and Longs Drug Stores California, Inc.

          Safeway, Inc., Theodore Keith Bell for Defendants and Respondents The Vons Companies, Inc. and Vons Food Services, Inc.

          Hunton & Williams, Phillip J. Eskenazi and Kirk A. Hornbeck for Defendants and Respondents Albertson's Inc. and Sav-On Drugs.

          Kamala D. Harris, Attorney General, Stephen Lew, Supervising Deputy Attorney General, and Nhan T. Vu, Deputy Attorney General, for Defendant and Respondent California State Board of Equalization.

         ORDER MODIFYING OPINION AND DENYING REHEARING

         THE COURT:[*]

         It is ordered that the opinion filed herein on March 13, 2017, be modified as follows:

         1. On page 25, the first paragraph, lines 13 through 22, following the sentence ending with “(California Building Industry Assn., at p. 462.)” the remainder of the paragraph is modified to read as follows:

         No matter how it is viewed, consumers' payment of the sales tax reimbursement does not effect a “taking”: To the extent we focus on the retailer's initial collection of the tax sales reimbursement, it is not a “taking” because the retailer is not a government entity (City of Perris v. Stamper (2016) 1 Cal.5th 576, 591 [“The takings clause... prohibits a governmental entity from taking private property for public use without just compensation”], italics added); to the extent we focus on the Board's subsequent receipt of that money as part of the retailer's sales tax, it is not a “taking” because “‘[t]axes and user fees... are not “takings”'” (Koontz v. St. Johns River Water Mgmt. Dist. (2013) 570 U.S. __, __ [133 S.Ct. 2586');">133 S.Ct. 2586, 2600-2601, 186 L.Ed.2d 697]; United States v. Sperry Corp. (1989) 493 U.S. 52, 62, fn. 9 [110 S.Ct. 387');">110 S.Ct. 387, 107 L.Ed.2d 290]; accord, San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 671-672 [noting that “the taking of money is different, under the Fifth Amendment, from the taking of real or personal property”]). Thus, the collection of sales tax reimbursement from consumers does not implicate the takings clause.

         2. On page 28, line 8, footnote 9 should be inserted after the sentence ending with “[same].)” The text of footnote 9 should read:

         In their 73-page petition for review, the customers thank this Court for “grappling with this difficult area of law” and, noting that briefing “may not have sufficiently anticipated and focused upon this [C]ourt's concerns, ” proceed to “supply the necessary focus” to their appeal by raising several new arguments that appear nowhere in their prior briefs-namely, that denying them a remedy violates the contract clause of our Constitution, that denying them a remedy violates due process because the collection of sales tax reimbursement by retailers effects an “escheat” to the state, that denying them a remedy effectively invalidates section 6597, and that they can rebut Civil Code section 1656.1's presumption of a contractual agreement with the retailers to collect sales tax reimbursement by showing actual fraud, constructive fraud, undue influence, mistake of fact, and mistake of law. Because the initial round of briefing on appeal is not a dry run for a whole new round of post-opinion briefing on rehearing, we respectfully decline to consider these arguments for the first time on rehearing. (E.g., Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013.)

         There is no change in the judgment.

         Appellants' petition for rehearing is denied.

          HOFFSTADT, J.

         A customer buys skin puncture lancets and test strips used by diabetics to test blood glucose levels from a retail pharmacy store like CVS or Walgreens. The retail pharmacy is the one obligated to pay sales tax to the State of California (Rev. & Tax. Code, § 6051), [1] and accordingly charges the customer a “sales tax reimbursement” to cover the cost of the sales tax and remits that amount to the state. If the retail pharmacy subsequently believes no sales tax is owed, it-as the taxpayer-can file an administrative claim for a refund with the state Board of Equalization (the Board) and challenge any adverse ruling in court. (§§ 6901 & 6932.) But the retail pharmacy usually has no financial incentive to pursue such a remedy because any refund it obtains from the Board must be passed back to the customer. (§ 6901.5; Decorative Carpets, Inc. v. State Board of Equalization (1962) 58 Cal.2d 252, 254-255 (Decorative Carpets).) What is more, and as our Supreme Court recently reaffirmed in Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1123-1124 (Loeffler), the customer is not the taxpayer and thus cannot herself seek a refund from the Board.

         May the customer obtain a court order compelling the retail pharmacy to file an administrative refund claim with the Board? Our Constitution strictly limits refund actions to those “provided by [our] Legislature” (Cal. Const., art. XIII, § 32), and no such statutory remedy exists. However, our Supreme Court in Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 802 (Javor) held that the Legislature's authority in this regard is not exclusive and that courts retain a residual power to fill remedial gaps by fashioning tax refund remedies in “unique circumstances.” Loeffler had no occasion to define those “unique circumstances.” (Loeffler, supra, 58 Cal.4th at pp. 1101, 1133-1134.)

         This case squarely presents this unanswered question. We conclude that a court may create a new tax refund remedy-and, accordingly, that the requisite “unique circumstances” exist-only if (1) the person seeking the new tax refund remedy has no statutory tax refund remedy available to it, (2) the tax refund remedy sought is not inconsistent with existing tax refund remedies, and (3) the Board has already determined that the person seeking the new tax refund remedy is entitled to a refund, such that the refusal to create that remedy will unjustly enrich either the taxpayer/retailer or the Board. Here, a group of customers filed a class action predicated on their ability to obtain an order compelling the retail pharmacies to file an administrative claim with the Board seeking a refund of the sales tax paid for skin puncture lancets and glucose test strips. Because the Revenue and Taxation Code does not provide for this remedy and because they have not established any of the three prerequisites to the exercise of the judicial residual power to fashion new remedies, the trial court correctly sustained demurrers to all of the claims in the customers' operative complaint without leave to amend. We consequently affirm the judgment below.

         FACTS AND PROCEDURAL BACKGROUND

         I. Facts

         Plaintiffs and appellants Michael McClain, Avi Feigenblatt, and Gregory Fisher (collectively, customers) each bought skin puncture lancets and glucose test strips from retail pharmacy stores owned and/or operated by defendants and respondents Sav-On Drugs, Gavin Herbert Company, Longs Drug Stores Corporation, Longs Drug Stores California, Inc., Rite Aid Corporation, Walgreen Co., Target Corporation, Albertson's Inc., The Vons Companies, Inc., Vons Food Services, Inc., and Wal-Mart Stores, Inc. (collectively, the retail pharmacies). Skin puncture lancets (or lancets) and glucose test strips are used by persons living with diabetes to draw their blood and test its glucose level, which is critical to knowing when to inject insulin to reduce their glucose levels. When the customers purchased lancets and test strips from the retail pharmacies, the retail pharmacies charged them “sales tax” on those items. The retail pharmacies subsequently remitted the money they collected as sales tax to the Board.

         II. Procedural History

         In the operative fourth amended complaint filed in 2014, [2] the customers sued the retail pharmacies and the Board[3] for a refund of the “sales tax” they paid for lancets and test strips, alleging that these items have been exempt from sales tax since March 10, 2000, the date on which the Board made effective California Code of Regulations, title 18, section 1591.1, subdivision (b)(5) (Regulation 1591.1). This complaint sought to certify a class comprised of “all persons who were charged by and paid one or more of the [retail pharmacies] a sales tax on glucose test strips or skin puncture lancets in California when such should not have been charged.”

         The operative complaint alleges that the retail pharmacies collected sales tax reimbursement for lancets and test strips when no sales tax was due on these items and that this conduct (1) breached an implied term of the contract that is deemed by statute to exist whenever a retailer collects a sales tax reimbursement from a customer under Civil Code section 1656.1 and also breached the implied covenant of good faith and fair dealing; (2) constituted an unlawful, unfair and/or fraudulent business practice and thereby violates the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.); (3) constituted negligence; and (4) violated the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) by misrepresenting the taxability of those ...


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