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MAYORS AND COUNCILMEMEBRS EXECUTIVE FORUM
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Last modified
7/19/2019 1:37:53 PM
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Date
5/28/2008
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League of California Cities <br />Mayors & Councilmembers Executive Forum <br />May 29, 2008 <br />Page 3 <br />The trial court in Oronoz certified a plaintiff class challenging the County's UUT. Both <br />the plaintiff class and the County argued on a writ to the Court of Appeal that the County's local <br />claiming ordinance applied, but disagreed whether that ordinance permitted class claims. The <br />Court of Appeal, disagreeing with a large number of published appellate decisions, including <br />Batt v. San Francisco, 155 Cal.App.4`h 55 (2007), found that local claiming ordinances do not <br />apply to tax claims to which no state statute other than the Gov't Claims Act applies, stripping <br />local governments of the power to impose claiming requirements on many tax and fee <br />challenges. The Court also found, contrary to precedent, that class claims against local taxes <br />were permissible because such claims "substantially" comply with statutory claiming <br />requirements. The California Supreme Court denied review and the case is now final. <br />However, the Ardon, Granados and McWilliams cases are now pending before the same <br />panel of the Court of Appeal in Los Angeles that decided Oronoz. In addition to arguing that <br />Oronoz was wrongly decided, these agencies arguel that their local claiming ordinances are not <br />preempted by the Gov't Claims Act and that the class plaintiffs failed to substantially comply <br />with those local requirements. Ardon was argued on August 12, 2008 and local government <br />counsel were able to persuade the very panel that had decided Oronoz to revisit the question. <br />The Court vacated submission of the case and inviting amicus curiae ("friends of the court") <br />briefs from local government groups and others on whether Oronoz should be overturned or <br />narrowed. While local goverrunents are not yet out of the woods on the issue of class remedies <br />in tax and fee cases, this is a hopeful development indeed. On April 28, 2009, the Court of <br />Appeal resubmitted the case, starting a new 90-day clock for its decision. Thus, it is likely to be <br />decided by July 27th. The case will likely be decided in 2009 and the McWilliams and Granados <br />will likely be addressed by the Court of Appeal shortly thereafter. <br />Calling Card Litigation: Sellers of prepaid telephone calling cards including Tracfone <br />Wireless, Inc. and Sprint / Nextel Boost have challenged the application of UUTs which include <br />references to the FET to their services. Tracfone sued the County of Los Angeles. The County <br />demurred, arguing that Tracfone acted as a volunteer and lacks standing to sue for a tax refund. <br />The trial court granted the County's demurrer, holding that Tracfone lacked standing to seek a <br />refund of a tax that it was not obliged to pay, but only to collect. <br />The Court of Appeal reversed, concluding Tracfone did have standing to seek a refund. <br />Tracfone Wireless, Inc. v. County of Los Angeles, 163 Cal.App.41h 1359 (2008). The Court <br />conclude that Tracfone's payments could not be viewed as voluntary, accepting Tracfone's <br />argument that it had no administrative means to collect taxes from consumers who bought its <br />calling cards and phones throughout the country (ignoring the likelihood that market forces <br />would include such taxes in the sales price of the phone and cards) and that Tracfone was <br />required by the County's ordinances to pay the tax before contesting it. The Court of Appeal <br />remanded the case to try the factual claims, including whether Tracfone in fact paid the tax or <br />'The author of this paper and Sandi Levin of Colantuono & Levin represent the cities of Long Beach and Los <br />Angeles in these cases. <br />73647.18 <br />
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