California Supreme And Appellate Court
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Communications Law
 

COMMUNICATIONS LAW
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■ Ardon v. City of LA, No. B201035

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. 

FACTUAL AND PROCEDURAL BACKGROUND

            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.


■ HELD:

In a class action seeking a refund of the City of LA's telephone users tax, trial court order striking his class action allegations is affirmed where: 1) plaintiff was required to file his claim in the manner set forth in the Government Claims Act prior to pursuing his action for a tax refund against the city; and 2) plaintiff cannot present a claim for a tax refund on behalf of a class under Government Code section 910, just on behalf of himself as an individual.
Ardon v. City of LA .-B201035- 5/28/09 CA2/3
Ardon v. City of LA .-B201035- 5/28/09 CA2/3-PDF

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