Supreme Court of California Justia
Citation 52 Cal. 4th 241, 255 P.3d 958, 128 Cal. Rptr. 3d 283
Ardon v. City of L.A.

Filed 7/25/11
IN THE SUPREME COURT OF CALIFORNIA

ESTUARDO ARDON,
) S174507
Plaintiff and Appellant,
) Ct.App. 2/3 B201035
v.
Los Angeles County
CITY OF LOS ANGELES,
) Super. Ct. No. BC363959
Defendant and Respondent.

In this case, we must decide whether Government Code section 910 (section 910)1
allows taxpayers to file a class action claim against a municipal governmental entity for
the refund of local taxes. In City of San Jose v. Superior Court (1974) 12 Cal.3d 447,
455 (City of San Jose), we held that section 910 permits a litigant to bring a class claim
against a local government. We later held in Woosley v. State of California (1992) 3
Cal.4th 758, 792 (Woosley), however, that class claims to recover tax refunds are not
permitted in certain situations because article XIII, section 32 of the California
Constitution prevents the judiciary “from expanding the methods for seeking tax refunds
expressly provided by the Legislature.” As we explain, neither Woosley, which
concerned the interpretation of statutes other than section 910, nor article XIII, section 32
of the California Constitution, applies to our determination of whether section 910
permits class claims that seek the refund of local taxes. We therefore conclude that the
reasoning of City of San Jose, which permitted a class claim against a municipal

1
All statutory references are to the Government Code unless otherwise noted.
1


government in the context of an action for nuisance under section 910, also permits
taxpayers to file a class claim seeking the refund of local taxes under the same statute.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff Estuardo Ardon (Ardon) is a resident of defendant City of Los Angeles
(City). In October 2006, Ardon filed a class action lawsuit on behalf of himself and
similarly situated individuals challenging the City‟s telephone users tax (TUT) and
seeking refund of funds collected under the TUT over the previous two years. Ardon
asserted that the City‟s municipal code exempts all amounts paid for telephone service
from the TUT to the extent that those amounts are also exempt from the federal excise tax
(FET). Ardon contends that since the FET was improperly collected, so too was the
TUT. In December 2006, Ardon received a notice from the Los Angeles City Attorney
rejecting his attempt to present a tax refund claim on behalf of a class due to lack of legal
standing.
Ardon‟s complaint against the City sought, inter alia, injunctive and declaratory
relief to prevent continued unlawful collection of the TUT, declaratory relief alleging the
unconstitutional amendment of the TUT by the Los Angeles City Council,2 money had
and received in unjust enrichment, and violation of the due process clauses of the
Fourteenth and Fifth Amendments to the United States Constitution. The complaint
sought certain remedies, including certification as a class action, an accounting of the
TUT funds collected by the City, and return of money wrongfully taxed.

2
Subsequent to Ardon‟s filing his complaint, the City amended Los Angeles
Municipal Code section 21.1.3 to remove all references to the FET. The city council
passed the amendment to the ordinance on January 9, 2007. (L.A. Ord. No. 178,219.) In
the Court of Appeal, the City contended that Ardon must file the refund claim under Los
Angeles Municipal Code section 21.07 and former section 21.1.2 governing claims for
refund of overpayment of business or use taxes. As the court observed, however, those
code sections do not apply to Ardon‟s claim that the City‟s TUT was an illegal tax. The
City does not renew its claim here. Therefore, we do not address any issues involving
preemption of the municipal code provisions in this case.
2


The City demurred to Ardon‟s complaint and moved to strike all class action
allegations on the grounds that Woosley prohibited Ardon from filing a claim against the
City for the refund of taxes on behalf of a putative class. Instead, the City argued, each
member of the alleged class must file a government claim with the City before Ardon
could proceed with a class action lawsuit. The superior court granted the City‟s motion
to strike all class allegations. It also partially overruled and partially sustained the
demurrer without leave to amend, and stayed other causes of action. Ardon filed a timely
appeal from the interlocutory order striking the class allegations.
A divided Court of Appeal affirmed the trial court‟s order refusing to certify the
class. In so doing, the panel specifically rejected its own reasoning and contrary holding
in a factually similar case, County of Los Angeles v. Superior Court (2008) 159
Cal.App.4th 353 (Oronoz). The Court of Appeal dissent would have followed the
opinion in Oronoz, which held that under City of San Jose’s construction of section 910,
a “claimant” could be an entire class as well as an individual. (Oronoz, supra, at p. 367.)
We granted review to resolve the conflict in the appellate courts regarding permissible
class claims under section 910.
DISCUSSION
Before 1959, taxpayer and other claims against the state, local, and municipal
governments were governed by myriad state statutes and local ordinances. Finding this
system too complex, the Legislature enacted the Government Claims Act (the Act),
which established a standardized procedure for bringing claims against local
governmental entities. (Stats. 1959, ch. 1724, p. 4133, enacting former Gov. Code, § 700
et seq. [replacing more than 150 separate procedures for directing claims against local
governmental entities]; now § 900 et seq.) 3

3
Section 910 states: “A claim shall be presented by the claimant or by a person
acting on his or her behalf and shall show all of the following: [¶] (a) The name and post
office address of the claimant. [¶] (b) The post office address to which the person
presenting the claim desires notices to be sent. [¶] (c) The date, place and other
circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶]
3


Section 910 does not specifically apply to tax refunds, but to all claims against
governmental entities. (See City of San Jose, supra, 12 Cal.3d at p. 454.) The purpose of
the claims statutes “is to provide the public entity sufficient information to enable it to
adequately investigate claims and to settle them, if appropriate, without the expense of
litigation.” (Id. at p. 455.) As originally proposed, the standardized procedures of the
Act embodied in section 910 would not have applied to “[c]laims under the Revenue and
Taxation Code or other provisions of law prescribing procedures for the refund . . . of any
tax . . . .” (Recommendation and Study Relating to the Presentation of Claims Against
Public Entities (Jan. 1959) 2 Cal. Law Revision Com. Rep. (1959) p. A-12 (proposed
former § 703, subd. (a), italics added.) However, the Legislature specifically rejected this
proposal and instead enacted former section 703, subdivision (a) (now § 905, subd. (a)),
which exempted from section 910 “[c]laims under the Revenue and Taxation Code or
other statute prescribing procedures for the refund . . . of any tax . . . .” (Stats. 1959, ch.
1724, pp. 4133-4134, italics added.)
The issue in City of San Jose was whether a class claim could satisfy the claim
requirements of section 910, or whether such class action claims could not be maintained
against governmental entities. (City of San Jose, supra, 12 Cal.3d at p. 455.) The
plaintiffs had filed a class claim against the City of San Jose under section 910, alleging
that aircraft noise, dust, vapors, and vibration arising from operations at the San Jose
Municipal Airport were a nuisance and diminished the market value of their property.
(City of San Jose, at pp. 453, 455.) This court adopted a two-part test for determining
whether the claim satisfied section 910: “Is there some compliance with all of the

(d) A general description of the indebtedness, obligation, injury, damage or loss incurred
so far as it may be known at the time of presentation of the claim. [¶] (e) The name or
names of the public employee or employees causing the injury, damage, or loss, if
known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($ 10,000) as
of the date of presentation of the claim . . . together with the basis of computation of the
amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar
amount shall be included in the claim. However, it shall indicate whether the claim
would be a limited civil case.”
4


statutory requirements; and, if so, is this compliance sufficient to constitute substantial
compliance?” (City of San Jose, at pp. 456-457.)
In addressing the section 910 class claim, City of San Jose concluded that the word
“claimant” referred to “the class itself,” not to an individual class member. The court
“reject[ed] the suggested necessity for filing an individual claim for each member of the
purported class.” (City of San Jose, supra, 12 Cal.3d at p. 457.) The court reasoned that
“[t]o require such detailed information in advance of the complaint would severely
restrict the maintenance of appropriate class actions—contrary to recognized policy
favoring them.” (Ibid.; see Code Civ. Proc., § 382; see also Vasquez v. Superior Court
(1971) 4 Cal.3d 800.) The court did not believe that section 910 was “intended to thwart
class relief.” (City of San Jose, supra, 12 Cal.3d at p. 457.) Because satisfaction of
section 910‟s procedural requirements obliged a representative class plaintiff to supply
information detailing his or her name, address, and other specified information, any
information beyond this requirement to identify the class itself was sufficient to satisfy
the “ „some compliance‟ test.” (City of San Jose, supra, 12 Cal.3d at p. 457.) “Beyond
this, the sufficiency of the identifying information must be measured by the substantial
compliance test.” (Ibid.) A claim substantially complies with a claims statute if the
parties have stated sufficient information “to reasonably enable the public entity to make
an adequate investigation of the merits of the claim and to settle it without the expense of
a lawsuit.” (Id. at p. 456.)
Woosley was a constitutional challenge to the state‟s vehicle license fees and use
taxes imposed on passenger vehicles sold outside California. The numerous issues
included the question of whether the trial court had erred in certifying the claim as a class
claim. Woosley held that article XIII section 32 of the California Constitution compelled
an action for tax refunds against the state to be brought in the manner that the Legislature
specified under the statutes at issue. (Woosley, supra, 3 Cal.4th at p. 789.)4 The court

4
Article XIII, section 32 of the California Constitution reads, “No legal or equitable
process shall issue in any proceeding in any court against this State or any officer thereof
5


concluded that statutes dictating the procedural requirements for obtaining refunds of
vehicle license fees and use taxes did not authorize class action claims. (Woosley, at p.
788; see Veh. Code, § 42231; Rev. & Tax. Code, §§ 6901 et seq., 6486.) Rather, the
language of those statutes indicated that “a claim for a refund of vehicle license fees must
be filed by „the person who has paid the erroneous or excessive fee or penalty, or his
agent on his behalf.‟ . . . [T]he term „person‟ does not include a class, and a class
representative who files a claim on behalf of all others similarly situated, without the
knowledge or consent of such other persons, is not the agent of the members of the
class.” (Woosley, supra, at p. 790, quoting Veh. Code, § 42231.) Because article XIII,
section 32 of the California Constitution requires tax refund claims to be made in the
specific manner prescribed by the Legislature, we concluded that the particular statutes at
issue in Woosley did not authorize class claims.
Regarding class-based refunds for use taxes, Woosley observed that “[a]n
examination of the entire statutory scheme that governed requests for refunds of sales and
use taxes when Woosley's claim was filed in 1977 reveals . . . that class claims were not
contemplated. If the [State Board of Equalization] denied a claim, that entity was
required, within 30 days, to „serve notice of its action on the claimant in the manner
prescribed for service of notice of a deficiency determination.‟ ([Rev. & Tax. Code,] §
6906.) [Revenue and Taxation Code] [s]ection 6486, in turn, provided in 1977 that the
[State Board of Equalization] shall give written notice of a deficiency determination „to
the retailer or person storing, using, or consuming tangible personal property,‟ either by
mail or by „delivering it to the person to be served.‟ The language of section 6486
suggests that notice must be given to each individual taxpayer. No mention is made of
notice to a class representative. The requirement that notice of the denial of a claim must
be given to each individual taxpayer thus is inconsistent with the use of a class claim.”

to prevent or enjoin the collection of any tax. After payment of a tax claimed to be
illegal, an action may be maintained to recover the tax paid, with interest, in such manner
as may be provided by the Legislature.”
6


(Woosley, supra, 3 Cal.4th at pp. 790-791.) Woosley, therefore, addressed the limited
question of whether Vehicle Code section 42231 and Revenue and Taxation Code
sections 6901 et seq. and 6486 permitted class actions by citizens seeking refunds of
taxes and fees from the state. When construed in light of article XIII, section 32 of the
California Constitution, we concluded that the Legislature did not intend to authorize
class claims for the refund of fees and taxes under those particular statutes. (Woosley, at
pp. 789-792.)
Woosley also stated that “the holding in City of San Jose . . . should not be
extended to include claims for tax refunds.” (Woosley, supra, 3 Cal.4th at p. 789.)
However, we did not mean that City of San Jose forbids all class action claims for tax
refunds; rather, Woosley precluded class claims for tax refunds where the Legislature has
explicitly set forth procedures for obtaining those refunds and has refused to authorize
class claims under those procedures. Specifically, Woosley criticized “[s]everal decisions
of the Court of Appeal [that] extended the holding in City of San Jose to permit the filing
of class claims seeking tax refunds, reasoning by analogy to the claims statute construed
in City of San Jose that the existing tax-refund statutes could and should be interpreted to
authorize the filing of class claims.” (Id. at p. 788, italics added.) It is important to note
that none of the Court of Appeal decisions this court criticized in Woosley either
construed or applied section 910. (See Schoderbek v. Carlson (1980) 113 Cal.App.3d
1029, 1033 [property tax statute]; Lattin v. Franchise Tax Board (1977) 75 Cal.App.3d
377, 381 [income tax statute]; Santa Barbara Optical Co. v. State Bd. of Equalization
(1975) 47 Cal.App.3d 244, 249 [sales tax statute]; Javor v. State Bd. of Equalization
(1977) 73 Cal.App.3d 939, 948 [sales tax statute].)
Several cases decided after Woosley have concluded that article XIII, section 32 of
the California Constitution bars class claims and class actions for the refund of locally
adopted taxes absent specific state statutory authority. (See Batt v. City and County of
San Francisco (2007) 155 Cal.App.4th 65, 74-75 [sustaining demurrer to plaintiff‟s class
action challenging city‟s transient occupancy hotel tax]; Howard Jarvis Taxpayers Assn.
7
v. City of Los Angeles (2000) 79 Cal.App.4th 242, 249 [rejecting taxpayer suit
challenging a municipal home occupation ordinance]; Neecke v. City of Mill Valley
(1995) 39 Cal.App.4th 946, 961-962 [rejecting property owner‟s action challenging a city
property tax].) As Oronoz observed, however, these cases are distinguishable, because
they all considered statutes or municipal ordinances enacted to provide specific
procedures for filing tax claims against governmental entities — procedures that are not
applicable or required in this case. (Oronoz, supra, 159 Cal.App.4th at p. 365, fn. 9.) In
addition, like the Oronoz court, we specifically disagree with the overbroad statement in
Howard Jarvis Taxpayers Assn. that “class-action-type lawsuits seeking a refund of fees
and taxes are barred unless each plaintiff has first filed an administrative refund claim
with the City.” (Id. at p. 249.) The statement is especially incorrect “as applied to claims
against local public entities that are not governed by specific tax refund statutes.”
(Oronoz, supra, at p. 365, fn. 9.)
The Court of Appeal here determined that the applicable claims statute in the
present case is Government Code section 910. Ardon asserts that section 910 claims
against government entities are to be presented by the claimant or by a person acting on
his or her behalf and that, as noted above, in City of San Jose this court held that the word
“claimant” in section 910 must be equated with the class itself and therefore permits the
filing of class claims. Ardon also claims that the Court of Appeal improperly extended
the reach of article XIII, section 32 of the California Constitution “beyond state entities
and their agents to a local government.”
By contrast, the City asserts that equating the term “claimant” with “the class
itself” is inconsistent with the strict compliance standard set forth in Woosley, supra, 3
Cal.4th 758, for tax refund claims. But, as Ardon observes, Woosley does not require
strict compliance with claims statutes in tax refund cases. The case requires that a court
analyze the claims statutes before it to determine whether the Legislature intended to
allow class claims under those statutes. Here, as City of San Jose, supra, 12 Cal.3d 447,
held, a class claim by taxpayers for a tax refund against a local governmental entity is
8
permissible under section 910 in the absence of a specific tax refund procedure set forth
in an applicable governing claims statute. Contrary to the City‟s argument, Woosley
simply does not apply here because section 910 allows the class claim.
Our conclusion recognizes the limitations of both City of San Jose and Woosley in
addressing the availability of class claims for the tax refunds in this case. City of San
Jose simply held that section 910 does not preclude class claims against government
entities. (City of San Jose, supra, 12 Cal.3d at pp. 456-457.) The action there did not
involve a challenge to a local tax, but instead asserted nuisance and inverse condemnation
claims. (Ibid.) All that Woosley demands is that a court first examine the claims statutes
at issue in a claim for a taxpayer refund to determine whether the Legislature
contemplated a class claim under the applicable California code. (Woosley, supra, 3
Cal.4th at pp. 790-792.) The court did not analyze the applicability of section 910, and,
in contrast to the City‟s contention, there is no reason to construe section 910 in light of
Woosley. As we have discussed, the relevant governing claims statute here is section
910. In contrast to the two statutes at issue in Woosley, section 910 states specifically
that a “claim shall be presented by the claimant or by a person acting on his or her
behalf.” While the Act contains an exemption for “[c]laims under the Revenue and
Taxation Code or other statute prescribing procedures for the refund . . . of any tax,” the
claim here did not involve any applicable municipal code or statute governing claims for
refunds. (Gov. Code, § 905, subd. (a), italics added.) City of San Jose held that class
claims are permitted under section 910. (City of San Jose, supra, 159 Cal.App.4th at p.
367.) Therefore, class claims for taxpayer refunds against local governmental entities
brought under section 910 are also permitted in California.
In addition, the City contends that article XIII, section 32 of the California
Constitution mandates that the Legislature must expressly authorize actions for tax
refunds, and section 910 does not expressly authorize class claims. Article XIII, section
32 of the California Constitution states, “No legal or equitable process shall issue in any
proceeding in any court against this State or any officer thereof to prevent or enjoin the
9
collection of any tax. After payment of a tax claimed to be illegal, an action may be
maintained to recover the tax paid, with interest, in such manner as may be provided by
the Legislature.” Despite the first sentence‟s reference to tax actions against the state, the
City asks us to read the second sentence of article XIII, section 32 to also preclude tax
actions against local governments in the absence of express legislative authorization.
But even assuming article XIII, section 32 is equally applicable to tax actions against
local governments, we have already determined that section 910 provides the necessary
legislative authorization for class claims of taxpayer refunds against local governmental
entities. Indeed, there is nothing in the constitutional provision that would preclude the
present action.
The City further asserts that the public policy underlying article XIII, section 32
precludes the present action. In Woosley, we held that article XIII, section 32 “rests on
the premise 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 based on
expected tax revenues. [Citation.]” (Woosley, supra, 3 Cal.4th at p. 789.) The City
argues that this policy is thwarted where the local government is faced with a potentially
huge liability in the form of a class action. But article XIII, section 32 simply prohibits
courts from “prevent[ing] or enjoin[ing] the collection of any tax” during the pendency of
litigation challenging the tax. (Cal. Const., art. XIII, § 32.) In fact, article XIII, section
32 does not purport to limit a court‟s authority to fashion a remedy if it determines a tax
is illegal, including its authority to issue an injunction against further collection of the
challenged tax. As Ardon observes, we have held that the important public policy behind
article XIII, section 32 “ „is to allow revenue collection to continue during litigation so
that essential public services dependent on the funds are not unnecessarily interrupted.‟ ”
(State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 638, quoting Pacific
Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277, 283.) This policy
is intended to ensure the uninterrupted flow of tax revenue, so that refunds that are
authorized must be processed in orderly procedures that the Legislature allows. That
10
policy favoring fiscal responsibility, however, does not justify precluding legitimate class
proceedings for the refund of allegedly illegal taxes, and is indeed satisfied here because
section 910 allows the present taxpayer class claim.
CONCLUSION
Woosley, supra, 3 Cal.4th 758, does not apply to a potential taxpayer class claim
brought under section 910. In addition, neither the explicit language nor the policy
underlying article XIII, section 32 applies to prevent the present action. City of San Jose,
supra, 12 Cal.3d 447, is entirely consistent with our conclusion here. Class claims for tax
refunds against a local governmental entity are permissible under section 910 in the
absence of a specific tax refund procedure set forth in an applicable governing claims
statute. Consequently, we reverse the Court of Appeal judgment, and remand the matter
for further proceedings consistent with our opinion.
CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
JACKSON, J.*

_____________________________
*
Associate Justice of the Court of Appeal, Second Appellate District, Division
Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11


See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ardon v. City of Los Angeles
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 174 Cal.App.4th 369
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S174507
Date Filed: July 25, 2011
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Anthony J. Mohr

__________________________________________________________________________________

Counsel:

Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & LaDuca, Jon
Tostrud; Chimicles & Tikellis, Nicholas E. Chimicles and 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 and Timothy N. Mathews for Willy Granados and Jon W. McWilliams as Amici
Curiae on behalf of Plaintiff and Appellant.

Patricia Sturdevant; Wilentz, Goldman & Spitzer, Kevin P. Roddy; and 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.

Patricia Sturdevant; Richard Holober; Shepherd, Finkelman, Miller & Shah, Patrick A. Klingman; Huskinson,
Brown, Heidenreich & Carlin and Paul E. Heidenreich for Consumer Action, Consumer Federation of California
and NASCAT as Amici Curiae on behalf of Plaintiff and Appellant.

Edward M. Teyssier; and Joseph D. Henchman for the Tax Foundation as Amicus Curiae on behalf of Plaintiff and
Appellant.

Alan M. Mansfield for Utility Consumers‟ Action Network as Amicus Curiae on behalf of Plaintiff and Appellant.

Rockard J. Delgadillo and Carmen Trutanich, City Attorneys, Noreen S. Vincent and Michael Nagle, Assistant City
Attorneys, Brian I. Cheng, Deputy City Attorney; Orrick Herrington & Sutcliffe, William Molinski, Valerie M. Goo
and Frank D. Rorie; Colantuono & Levin, Michael G. Colantuono, Sandra J. Levin, Amy C. Sparrow and Erwin M.
Benedicto for Defendant Respondent.


Page 2 – S174307 – counsel continued

Dennis J. Herrera, City Attorney (San Francisco), Julie Van Nostern, Chief Tax Attorney, and 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) and Albert Ramseyer, Principal Deputy County Counsel,
for the County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Francis M. Gregorek
Wolf Haldenstein Adler Freeman & Herz
750 B Street, Suite 2770
San Diego, CA 92101
(619) 239-4599

Sandra J. Levin
Colantuono & Levin
300 South Grand Avenue, Suite 2700
Los Angeles, CA 90071
(213) 542-5700


Petition for review after the Court of Appeal affirmed an order striking class action allegations in a civil action. This case presents the following issue: Does Government Code section 910 authorize a class claim for refund of a local tax, or must each putative class member file his or her own claim prior to the filing of a class action suit?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/25/201152 Cal. 4th 241, 255 P.3d 958, 128 Cal. Rptr. 3d 283S174507Review - Civil Appealsubmitted/opinion due

Parties
1Ardon, Estuardo (Plaintiff and Appellant)
Represented by Francis M. Gregorek
Wolf Haldenstein Adler Freeman & Herz, LLP
750 "B" Street, Suite 2770
San Diego, CA

2Ardon, Estuardo (Plaintiff and Appellant)
Represented by Nicholas E. Chimicles
Chimicles & Tikellis, LLP
361 W. Lancaster Avenue
Haverford, PA

3Ardon, Estuardo (Plaintiff and Appellant)
Represented by Timothy N. Mathews
Chimicles & Tikellis, LLP
361 W. Lancaster Avenue
Haverford, PA

4Ardon, Estuardo (Plaintiff and Appellant)
Represented by Rachele Renee Rickert
Wolf Haldenstein Adler Freeman & Herz, LLP
750 "B" Street, Suite 2770
San Diego, CA

5Ardon, Estuardo (Plaintiff and Appellant)
Represented by Jon A. Tostrud
9254 Thrush Way
9254 Thrush Way
Los Angeles, CA

6City of Los Angeles (Defendant and Respondent)
Represented by Sandra Jeanne Levin
Colantuono & Levin, PC
300 S. Grand Avenue, Suite 2700
Los Angeles, CA

7City of Los Angeles (Defendant and Respondent)
Represented by Erwin M. Benedicto
Colantuono & Levin, PC
300 S. Grand Avenue, Suite 2700
Los Angeles, CA

8City of Los Angeles (Defendant and Respondent)
Represented by Michael G. Colantuono
Colantuono & Levin, PC
555 W. Fifth Street, 31st Floor
Los Angeles, CA

9City of Los Angeles (Defendant and Respondent)
Represented by William A. Molinski
Orrick Herrington & Sutcliffe, LLP
777 S. Figueroa Street, Suite 3200
Los Angeles, CA

10City of Los Angeles (Defendant and Respondent)
Represented by Noreen Suzanne Vincent
Office of the City Attorney
200 N. Main Street, Suite 920
Los Angeles, CA

11California Special Districts Association (Amicus curiae)
Represented by Peter Julian Keith
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

12California State Association of Counties (Amicus curiae)
Represented by Peter Julian Keith
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

13Consumer Action (Amicus curiae)
Represented by Patricia Sturdevant
221 Main Street, Suite 480
221 Main Street, Suite 480
San Francisco, CA

14Consumer Federation of California (Amicus curiae)
Richard Holober
1107 9th Street, Suite 625
Sacramento, CA 95814

15Huskinson Brown Heidenreich & Carlin (Amicus curiae)
Represented by Paul Edward Heidenreich
Attorney at Law
865 Manhattan Beach Boulevard, Suite 200
Manhattan Beach, CA

16League of California Cities (Amicus curiae)
Represented by Peter Julian Keith
Office of the City Attorney
1390 Market Street, 6th Floor
San Francisco, CA

17NASCAT (Amicus curiae)
Represented by Patrick A. Klingman
Shepard Finkelman Miller & Shah, LLP
65 Main Street
Chester, CT

18NASCAT (Amicus curiae)
Represented by Rosemary Farrales Luzon
Shepard Finkelman Miller & Shah, LLP
401 West "A" Street, Suite 2350
San Diego, CA

19Tax Foundation (Amicus curiae)
Represented by Edward Matthew Teyssier
Microwave Solutions, Inc.
3200 Highland Avenue, Suite 300
National City, CA

20Utility Consumers' Action Network (Amicus curiae)
Represented by Alan M. Mansfield
Attorney at Law
3100 Fifth Avenue, Suite B
San Diego, CA


Opinion Authors
OpinionJustice Ming W. Chin

Dockets
Jul 7 2009Petition for review filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Jon A. Tostrud Attorney: Rachele Renee Rickert   Estuardo Ardon, plaintiff and appellant Rachele Rickert, Jon Tostrud, counsel
Jul 9 2009Record requested
 
Jul 10 2009Received Court of Appeal record
 
Jul 27 2009Answer to petition for review filed
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin   City of Los Angeles, Defendant and Respondent Sandra Levin, Retained counsel
Aug 6 2009Reply to answer to petition filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Francis M. Gregorek   Estuardo Ardon, Plaintiff and Appellant. Francis M. Gregorek, counsel
Aug 21 2009Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including October 5, 2009, or the date upon which review is either granted or denied.
Sep 9 2009Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Sep 9 2009Letter sent to:
  counsel requesting a "Certification of Interested Entities or Persons." The completed form should be returned within 15 days.
Sep 11 2009Record requested
  Remaining record (vol. 2)
Sep 11 2009Received Court of Appeal record
  1 doghouse
Sep 17 2009Certification of interested entities or persons filed
  by counsel for appellant Estuardo Ardon. Francis M. Gregorek, counsel
Sep 15 2009Application to appear as counsel pro hac vice (granted case)
  for Timothy N. Mathews to appear on behalf of the Estuardo Ardon, appellant.
Sep 23 2009Application to appear as counsel pro hac vice granted
  The application of Timothy N. Mathews for admission pro hac vice to appear on behalf of plaintiff and appellant is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Sep 24 2009Certification of interested entities or persons filed
  City of Los Angeles, Defendant and Respondent Sandra Levin, Retained counsel
Sep 25 2009Application to appear as counsel pro hac vice (granted case)
  Nicholas E. Chimicles to appear pro hac vice for appellant Estuardo Ardon (to court for permission)
Oct 2 2009Application to appear as counsel pro hac vice granted
  The application of Nicholas E. Chimicles for admission pro hac vice to appear on behalf of appellant is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Oct 9 2009Opening brief on the merits filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Rachele Renee Rickert  
Oct 28 2009Request for extension of time filed
  joint application for extension of time to file answer brief on the merits and reply brief on the merits
Nov 3 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 24, 2009. On application of appellant and good cause appearing, it is also ordered that the time to serve and file the reply brief on the merits is extended to and including February 9, 2010.
Dec 24 2009Answer brief on the merits filed
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin  
Dec 28 2009Request for judicial notice filed (Grant or AA case)
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin  
Feb 10 2010Reply brief filed (case fully briefed)
Plaintiff and Appellant: Ardon, EstuardoAttorney: Francis M. Gregorek   per CRC 8.25b
Feb 10 2010Request for judicial notice filed (Grant or AA case)
Plaintiff and Appellant: Ardon, EstuardoAttorney: Rachele Renee Rickert  
Mar 11 2010Application to file amicus curiae brief filed
  Tax Foundation, amicus curiae by Edward M. Teyssier, counsel
Mar 11 2010Application to file amicus curiae brief filed
  The League of California Cities, et al., amicus curiae by Peter J. Keith, Deputy City Attorney
Mar 16 2010Permission to file amicus curiae brief granted
  The application of Tax Foundation for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 16 2010Amicus curiae brief filed
Amicus curiae: Tax FoundationAttorney: Edward Matthew Teyssier  
Mar 16 2010Permission to file amicus curiae brief granted
  The application of The League of California Cities, et al., for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 16 2010Amicus curiae brief filed
Amicus curiae: League of California CitiesAttorney: Peter Julian Keith Amicus curiae: California State Association of CountiesAttorney: Peter Julian Keith Amicus curiae: California Special Districts AssociationAttorney: Peter Julian Keith  
Mar 15 2010Application to file amicus curiae brief filed
  Utility Consumers' Action Network, amicus curiae by Alan M. Mansfield, counsel
Mar 12 2010Application to file amicus curiae brief filed
  NASCAT, et al., amicus curiae by Patrick A. Klingman, counsel
Mar 18 2010Application to appear as counsel pro hac vice (granted case)
  Patrick A. Klingman, counsel for NASCAT
Mar 24 2010Permission to file amicus curiae brief granted
  The application of Utility Consumers' Action Network for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 24 2010Amicus curiae brief filed
Amicus curiae: Utility Consumers' Action NetworkAttorney: Alan M. Mansfield  
Mar 25 2010Application to appear as counsel pro hac vice granted
  The application of Patrick A. Klingman for admission pro hac vice to appear on behalf of NASCAT is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Mar 25 2010Permission to file amicus curiae brief granted
  The application of NASCAT, et al., for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 25 2010Amicus curiae brief filed
Amicus curiae: Consumer ActionAttorney: Patricia Sturdevant Amicus curiae: Consumer Federation of California Amicus curiae: NASCATAttorney: Patrick A. Klingman Amicus curiae: Huskinson Brown Heidenreich & CarlinAttorney: Paul Edward Heidenreich  
Apr 6 2010Response to amicus curiae brief filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Francis M. Gregorek   per CRC 8.25b
Apr 6 2010Response to amicus curiae brief filed
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin   per CRC 8.25b
May 11 2010Change of contact information filed for:
  Colantuono & Levin, P.C., for Sandra J. Levin (counsel)
Mar 25 2011Received:
  Letter from Francis M. Gregorek, counsel for appellant, requesting the court not schedule oral argument in this matter for the month of June 2011.
May 2 2011Justice pro tempore assigned
  Hon. Frank Y. Jackson Second Appellate District, Division Seven
May 3 2011Case ordered on calendar
  to be argued Wednesday, May 25, 2011, at 9:00 a.m., in San Francisco
May 5 2011Argument rescheduled
  the case will now be argued on Tuesday, May 24, 2011, at 1:30 p.m., in San Francisco
May 17 2011Request for judicial notice denied
  Plaintiff Ardon's request for judicial notice of two separate tax refund complaints is denied as irrelevant. In addition, the request of amicus curiae Willy Granados and John W. McWilliams that we take judicial notice of various appellate records and proceedings in County of Los Angeles v. Superior Court (Ornoz, Real Parties in Interest) (2008) 159 Cal. App. 4th 353, is also denied as repetitive of the published opinion in that case. (Evid. Code, ? 452, subds. (a), (d).)
May 24 2011Cause argued and submitted
 
May 31 2011Note: Mail returned and re-sent
  To counsel Jon A. Tostrud and Paul Edward Heidenreich. Updated addresses.
Jun 16 2011Note: Mail returned and re-sent
  Order on request for judicial notice. To Counsel, Jon Tostrud.
Jul 22 2011Notice of forthcoming opinion posted
  To be filed on Monday, July 25, 2011 at 10 a.m.

Briefs
Oct 9 2009Opening brief on the merits filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Rachele Renee Rickert  
Dec 24 2009Answer brief on the merits filed
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin  
Feb 10 2010Reply brief filed (case fully briefed)
Plaintiff and Appellant: Ardon, EstuardoAttorney: Francis M. Gregorek  
Mar 16 2010Amicus curiae brief filed
Amicus curiae: Tax FoundationAttorney: Edward Matthew Teyssier  
Mar 16 2010Amicus curiae brief filed
Amicus curiae: League of California CitiesAttorney: Peter Julian Keith Amicus curiae: California State Association of CountiesAttorney: Peter Julian Keith Amicus curiae: California Special Districts AssociationAttorney: Peter Julian Keith  
Mar 24 2010Amicus curiae brief filed
Amicus curiae: Utility Consumers' Action NetworkAttorney: Alan M. Mansfield  
Mar 25 2010Amicus curiae brief filed
Amicus curiae: Consumer ActionAttorney: Patricia Sturdevant Amicus curiae: Consumer Federation of California Amicus curiae: NASCATAttorney: Patrick A. Klingman Amicus curiae: Huskinson Brown Heidenreich & CarlinAttorney: Paul Edward Heidenreich  
Apr 6 2010Response to amicus curiae brief filed
Plaintiff and Appellant: Ardon, EstuardoAttorney: Francis M. Gregorek  
Apr 6 2010Response to amicus curiae brief filed
Defendant and Respondent: City of Los AngelesAttorney: Sandra Jeanne Levin  
Brief Downloads
application/pdf icon
s174507-1-appellants-petitiion-review.pdf (577960 bytes) - Appellants Petition for Review
application/pdf icon
s174507-2-respondents-answer-to-petition-review.pdf (282884 bytes) - Respondents Answer to Petition for Review
application/pdf icon
s174507-3-appellants-reply-answer-petition-review.pdf (197470 bytes) - Appellants Reply to Answer to Petition for Review
application/pdf icon
s174507-4-appellants-opening-brief-on-the-merits.pdf (1173007 bytes) - Appellants Opening Brief on the Merits
application/pdf icon
s174507-5-respondents-answer-brief-on-the-merits.pdf (570858 bytes) - Respondents Answer Brief on the Merits
application/pdf icon
s174507-6-respondents-request-judicial-notice.pdf (6134051 bytes) - Respondents Request for Judicial Notice
application/pdf icon
s174507-7-appellants-reply-brief-on-the-merits.pdf (395056 bytes) - Appellants Reply Brief on the Merits
application/pdf icon
s174507-8-appellants-request-judicial-notice.pdf (555642 bytes) - Appellants Request for Judicial Notice
application/pdf icon
Amicus letter CSDA.pdf (94060 bytes) - Amicus Letter: League of California Cities and California Special Districts Association
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 8, 2012
Annotated by Mia Crager

FACTS

Ardon filed a class action claim alleging that Los Angeles’s telephone user tax was improperly collected. The municipal code “exempts all amounts paid for telephone service from the [telephone users tax] to the extent that those amounts are also exempt from the federal excise tax . . . .” Ardon claimed that miscalculation of the federal excise tax caused errors in the telephone user tax. The complaint sought, inter alia, a refund of improperly collected taxes over a two year period.

PROCEDURAL HISTORY

Los Angeles demurred and moved to strike Ardon’s class action claims, arguing that, under Woosley v. State of California, each member of the putative class must file a claim for refund before proceeding as a class action. The superior court agreed and sustained the demurrer on the class action issue. The Court of Appeals affirmed, overruling its precedent in County of Los Angeles v. Superior Court (Oronoz).

ISSUES

1. Whether a class action for refund of local taxes can be brought under Government Code section 910 against municipal government.
2. Whether a class action brought under Government Code section 910 for refund of taxes is barred by article XIII, section 32 of the California Constitution.

HOLDING
1. The class action may be brought under Government Code section 910 because the language of section 910 refers to a “claimant” which encompasses a class.
2. The class action is not barred by article XIII, section 32 of the California Constitution because the legislature authorized such class claims for section 910.

ANALYSIS

The court considered the applicability of precedents concerning the refund of taxes under statutes other than Government Code section 910 in class action and of article XIII, section 32 of the California Constitution, and concluded that neither were controlling in this case. In City of San Jose v. Superior Court, the court held that class actions could be brought under section 910 against local government, however that case did not resolve whether refund of taxes may be used as a remedy.

Article XIII, section 32 of the Constitution states that the judiciary cannot “expand[] the method for seeking tax refunds expressly provided by the Legislature.” The court had previously ruled in Woosley v. State of California that class action claims seeking refund of taxes are barred in cases where legislative authorization is lacking. The court concluded that section 910 did provide legislative authorization for refund of taxes on a class basis. In reaching this conclusion, the court examined the language of section 910 and the public policy implications.

In a textual analysis, the court compared the language of section 910 with that of the statutes at issue in Woosley and cases following Woosley where a constitutional violation was found. Section 910 applies to the “claimant” while statutes in Woosley concerned the “person.” The court reasoned that “claimant” can include either an individual plaintiff or a class, which was evidence of the legislature’s intent to include class claims. The court further narrowed the holding in Woosley, stating that it “addressed the limited question of whether Vehicle Code section 42231 and Revenue and Taxation Code sections 6901 et seq. and 6486 permitted class actions by citizens seeking refunds of taxes and fees from the state,” and emphasized the need to look at the statutory language in each case to decide whether there was legislative authorization or not.

Regarding the public policy implications, the City argued that allowing such class actions would undercut fiscal planning—a policy objective furthered by article XIII, section 32 of the California Constitution— because of the potential for significant liability from such actions. The court however emphasized that the public policy behind the provision was instead to “allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted.” The ruling, therefore, would not conflict with the goal of the constitutional provision.

KEY STATUTES AND PROVISIONS

Government Code section 910
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=13356422833+0+0+0&W...

California Constitution article XIII, section 32
http://www.leginfo.ca.gov/.const/.article_13

KEY CASES

City of San Jose v. Superior Court, 12 Cal. 3d 447 http://law.justia.com/cases/california/cal3d/12/447.html

Woosley v. State of California, 3 Cal. 4th 758
http://law.justia.com/cases/california/cal4th/3/758.html

County of Los Angeles v. Superior Court (Oronoz), 159 Cal. App. 4th 353
http://67.21.3.118/research/CaseLevel3/85281

TAGS

Municipal government, tax refund, municipal taxes, class action, telephone user tax, claimant definition, Government Claims Act legislative history, substantial compliance

Annotation by Mia Crager