Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV237482
Richman, J.
In Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946 (Neecke), this court held that a suit against a municipality for a refund of taxes allegedly exacted in violation of Proposition 13 could not be maintained as a class action because it lacked statutory authorization. As part of that holding, we also concluded that a representative suit authorized by Code of Civil Procedure section 382 did not displace the more specific provisions governing refund actions in the Revenue and Taxation Code. Only last year, in Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65 (Batt), we reiterated these holdings, and further held that the principle that class action refund actions could not be maintained against a municipality without express statutory approval could not be evaded by attempting to recast a refund claim in the guise of different causes of action.
The appeal here, like Neecke, involves an alleged violation of a constitutional provision, in this case, California Constitution, article XIII D, which was added by Proposition 218. Like Neecke and Batt, the plaintiffs here attempted to maintain a class action for refund of amounts assessed by a municipality. Like Neecke and Batt, that action is not statutorily authorized. We therefore conclude that the trial court did not err in striking the allegations purporting to expand an individual action for refund into an action on behalf of all municipal property owners who have allegedly been assessed sewer fees and charges in violation of Proposition 218. Like Batt, we decline to allow artful pleading to punch a hole in the principle that class actions cannot be maintained against a municipality without express statutory approval. However, we also conclude that the trial court erred in striking a prayer for attorney fees because that involves an issue that may not resolved at the pleading stage. Thus, we affirm in part and reverse in part.
BACKGROUND
This is the second appeal in this case. The start of the dispute is described in our opinion on the first appeal as follows:
“Plaintiff alleged that ‘City violated Article XIII D of the California Constitution in the manner set forth in the written objections by Plaintiff to wit: [¶] (a) The City failed to notify the record holder of the parcels to be affected by the proposed sewer rate increases of the public hearing by mail as required by Article XIII D of the California Constitution, section 6(a)(1). [¶] (b) The Notice of Public Hearing . . . fail[ed] to set forth the basis on which the proposed sewer rate increases was calculated as required by Article XIII D of the California Constitution, section 6(a)(1). [¶] (c) The City failed to give 45 days notice of the public hearing by mail to owners of the [affected] parcels as required by Article XIII D of the California Constitution, section 6(a)(2).’
The “written objections” mentioned refer to the grounds specified in Stutrud’s refund demand filed after first paying for the new charges. Because of its importance to the ultimate resolution of this appeal, we quote its pertinent language at some length: “REQUEST FOR REFUND OF
“UNLAWFUL FEE OR CHARGE “FOR PROPERTY RELATED SERVICE
“To the City of Rohnert Park: “Pursuant to Section 5097 and 5141 of the Revenue and Taxation Codes and Section 945.6 of the Government Code and any other applicable statute, Paul D. Stutrud hereby requests, individually and on behalf of all others similarly situated, a refund of all sums paid to the City of Rohnert Park as a result of the sewer and water rate increases approved by the Rohnert Park City Council at its meeting on February 22, 2005.
“This request is made on the ground that Paul D. Stutrud is the owner of the real property located at [address] and that incident to said property ownership he and all others similarly situated were subject to the unlawful sewer and water rate increases of which a refund is requested. The sewer and rate increases are in violation of Article XIII D, section 6, of the California Constitution in the following particulars: “1) The City of Rohnert Park failed to notify the record owners of the parcels affected by mail.
“2) The Notice of Public Hearing ultimately published . . . fails to set for[th] the basis upon which the proposed rate increases were calculated. “3) The City of Rohnert Park failed to give 45 days written notice by mail of the public hearing regarding the sewer and water rate increases.
“4) The rate increases for sewer and water service exceed the amount attributable to single family dwellings, including that of Paul D. Stutrud . . . .”
“Plaintiff requested ‘that this Court issue a declaratory judgment that the City sewer service is a property related service within the meaning of Article XIII D of the California Constitution and is subject to all of the limitations and requirements for the fee or charges for property related services as set forth in Article XIII D of the California Constitution except for the requirements that fee increases be approved by the voters.’ He also prayed for refund of ‘all sewer service charges unlawfully exacted,’ . . . a permanent injunction prohibiting the City from ‘requesting, demanding or in any way enforcing the increases in sewer charges’ [, and ‘attorney’s fees pursuant to section 1021.5 of the Code of Civil Procedure’].
“The City filed a general demurrer on the ground the complaint did not state facts sufficient to state a cause of action [citation] because ‘the challenged fees are not subject to Proposition 218,’ the 1996 initiative measure that enacted Article XIII D, ‘and even if they were, the City did not violate Proposition 218 by adopting the challenged fees.’ The City argued that Article XIII D applied to fees or charges for property related services, but the sewer service increases were not related to ownership of real property: ‘Here, not all property owners pay the subject charges. Rather, only owners or occupants who use the sewer system pay the charges. Specifically, property owners do not need to connect to the sewer system if the subject property is located more than 300 feet away from a sewer line. [Citation.] Further, any user of the system may be billed for the service, whether or not they are property owners. [Citation.] Thus, the subject fees are not imposed “as an incident of property ownership.” (Cal. Const., art XIII D, § 2, subd. (e).) Rather, they are imposed on the basis of use (i.e., whether a person generates sewage which flows into the City’s system, and if so, how much). Therefore, the sewer use fees are excluded from the definition of “fee” or “charge” used in Proposition 218.’ The City further argued that the Court of Appeal in Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 85 Cal.App.4th 79, had recognized this distinction by holding that municipal water service charges which were based on the amount of water consumed were not covered by Proposition 218.” (Stutrud v. City of Rohnert Park (Dec. 12, 2006, A113357) [nonpub. opn.] (Stutrud I).)
The trial court sustained the City’s demurrer without leave to amend, and entered a judgment of dismissal. Stutrud appealed. During the pendency of Stutrud’s appeal, the California Supreme Court rejected the construction of Article XIII D embraced by the City, in Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205. In light of this authority, we held that Stutrud had stated a cause of action and the case should go forward:
as landowners Stutrud I Apartment Assn. of Los Angeles, County, Inc. v. City of Los Angeles Apartment AssnThe City reacted quickly. The same month our opinion was filed, the City mailed notice of a public hearing concerning the charges already imposed, and future collection of the same charges. A City document states that “A public hearing was held . . . on January 23, 2007. Two written protests were received, and thus do not constitute a majority protest.” Because there had not been a protest from a majority of property owners affected, the city council introduced an “Uncodified Ordinance of the City of Rohnert Park Regarding Sewer Service Charges.” The following month, on February 13, 2007, the city council adopted that ordinance, thereby reenacting the charges established by the 2005 ordinance.
Three days later, Stutrud filed a first amended class action complaint. This time he was joined as plaintiff and putative class representative by Stephen N. Bosshard, who sued “on behalf of themselves, and all other similarly situated.” The suit was described as “a class action seeking refunds, disgorgement, and/or restitution for a class of City . . . . sewer customers, . . . and an injunction to enjoin the City from charging illegal sewer fees.” Stutrud and Bosshard (hereafter plaintiffs) alleged that they “bring this suit as a class action under Section 382 of the Code of Civil Procedure on behalf of the following class of persons: [¶] Residential sewer customers in the City . . . who paid sewer fees from April 1, 2005 through the date judgment is entered . . . in this action.” The class was alleged to comprise “approximately 8000 Sewer Customers who were overcharged” by the City.
Plaintiffs attacked the substantive justification for the increased charges: The claimed 124% increase in the cost of maintaining facilities was “false.” “Furthermore, the City frequently carries a substantial balance in its sewer enterprise fund which indicates that its revenues far exceed the costs of operating the sewer system. [¶] By these rate increases and the City’s failure to match rates with costs, Stutrud, Bosshard, and the putative class members have paid and will continue to pay illegal and unconstitutional sewer fees.” Plaintiffs alleged that this constituted a “violation” of “article XIII D § 6(b)(1)-(4),” which constituted their first cause of action.
The pertinent language of this part of Article XIII D provides: “(b) Requirements for Existing, New or Increased Fees and Charges.
“A fee or charge shall not be extended, imposed, or increased by any agency unless it meets all of the following requirements: “(1) Revenues derived from the fee or charge shall not exceed the funds required to provide the property related service.
“(2) Revenues derived from the fee or charge shall not be used for any purpose other than that for which the fee or charge was imposed. “(3) The amount of a fee or charge imposed upon any parcel or person as an incident of property ownership shall not exceed the proportional cost of the service attributable to the parcel.
“(4) No fee or charge may be imposed for a service unless that service is actually used by, or immediately available to, the owner of the property in question. Fees or charges based on potential or future use of a service are not permitted . . . .” (Cal. Const. art., III D, § 6(b)(1)-(4).)
Plaintiffs’ second cause of action attacked the procedures attending enactment of both the 2005 and the 2007 ordinances. Regarding the latter, plaintiffs alleged: “The City further failed to follow the procedures [established by Article XIII D] prior to increasing the rates on January 23, 2007. Specifically, it failed to provide written notice of the true basis upon which the amount of the proposed fee was calculated. Thus, all rates collected from January 24, 2007 through the date judgment is entered in this action have been and will be illegally extracted.” The remedy sought by plaintiffs for their first and second causes of action was “an injunction to enjoin further collection of the illegal increases, and disgorgement, restitution, and/or a refund of all illegally-obtained fees.”
The third cause of action was styled, and prayed for “a judicial declaration as to whether the City has, in fact, complied with . . . [Article] XIII D.” The fourth cause of action was denominated “Assumpsit.” In addition to incorporating all previous allegations, plaintiffs alleged that “The increased sewer fees were paid upon a consideration that failed completely,” thereby justifying “a return of the increased sewer fees.” The fifth and final cause of action was that “By virtue of the City’s illegal and improper activities as alleged herein, the City holds funds paid to it by Plaintiffs as a constructive trust for Plaintiffs.”
In the prayer of their complaint, Stutrud and Bosshard sought: (1) “a determination that the instant action is a proper class action maintainable under Section 382 of the Code of Civil Procedure[, and] that Paul Stutrud and Stephen N. Bosshard are adequate class representatives”; (2) “refunds, damages, restitution, and/or disgorgement, in an amount to be determined at trial, but not less than $5,280,000”; (3) imposition of a constructive trust; (4) “an award of attorneys’ fees pursuant to CCP § 1021.5, or as permitted by law”; (5) prejudgment interest; and (6) “other further relief as may be just and proper.”
The City filed a motion to strike certain allegations from the complaint. At the same time the City also interposed a special demurrer to achieve the same result, namely the removal of the class action allegations and “Bosshard’s claims in their entirety.” The City argued that Bosshard was not yet entitled to ask for judicial relief of any kind because he had not exhausted his administrative remedies with respect to a refund of charges paid pursuant to either the 2005 or the 2007 ordinances. In a similar vein, the City argued that Stutrud had exhausted his administrative remedies concerning the charges imposed by virtue of the 2005 ordinance, but not as to any charges imposed or collected under the 2007 ordinance. Concerning the class action allegations, the City argued that they were “improper” because they were not authorized by the governing law, specifically, Health and Safety Code sections 5471-5472, and Revenue and Taxation Code sections 5096 and 5140, which displaced Code of Civil Procedure section 382, the authority invoked by plaintiffs.
In their opposition to the motions, plaintiffs disputed the City on every point. On the exhaustion issue, plaintiffs reasoned that when Stutrud filed his administrative claim for refund of charges collected under the 2005 ordinance (see fn. 2, ante), “it relieved Bosshard, and all putative class members, of the need to file another claim,” which in any event “would have been futile . . . in light of the City’s concerted efforts at undermining its citizens’ constitutional rights at every turn.”
Plaintiffs viewed the merits of their complaint as linked to maintenance of the action as a class action: “The City is attempting to frustrate the purpose of Proposition 218 . . . . It asks the Court, at the pleading stage, to wipe out the class allegations. But the City’s primary basis for its demurrer—that this action is a tax refund case—is wrong. And its contentions that Plaintiffs’ claims have been filed pursuant to Health and Safety Code § 5472, a statutory scheme enacted prior to the passage of Prop. 218, is belied by the allegations in the FAC [First Amended Complaint]. Plaintiffs do not allege a Health and Safety Code § 5472 violation and in fact, its two primary claims are based on violations of art. XIII D. All constitutional articles are self-executing and claims may be brought directly thereunder. Importantly, art. XIII D must be liberally construed to effectuate its purpose of limiting local government revenue and enhancing taxpayer consent. [Citation.] Refusing to allow this action to proceed on a class-wide basis would frustrate the enforcement of these constitutional rights.”
Plaintiffs could not refrain from tweaking the City for changing position on terminology: “Although the City repeatedly characterizes this action as a ‘tax refund’ action, the sewer service fees at issue are not taxes. [¶] [F]ees for utilization of sewer services are ‘user fees’ and not ‘taxes.’ See Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 957. . . . [¶] Moreover, the Court of Appeal, in its December 12, 2006 opinion, confirmed that the City did not take the position that the sewer fees were taxes. (‘Even so, the City cannot forbear from reiterating that the sewer charges increases “are not a tax, but rates upon amounts consumed by those voluntarily connected” to the City sewer system.’)”
Moreover, plaintiffs went on, “the City has overlooked the fact that Plaintiffs seek other non-refund remedies on a class-wide basis such as declaratory and injunctive relief.” This fact alone, plaintiffs argued, undermined the whole statutory basis of the City’s demurrer and motion to strike: “The City contends . . . that, ‘the only manner of seeking a refund of sewer rates is pursuant to Revenue & Taxation Code section 5096, et seq. which includes Revenue and Taxation Code section 5140.’ In order to get to the Revenue and Taxation Code, it concludes that Plaintiffs have brought their claims under Health & Safety Code § 5472 . . . . [¶] . . . [¶] Section 5472 is a useful provision for those taxpayers without a separate cause of action. But here, . . . Plaintiffs have alleged independent constitutional and equitable claims. Neither section 5472 nor Revenue & Taxation Code § 5096 have any place in this action.” Thus, because “this is more than just a refund action . . . even assuming, arguendo, that Plaintiffs’ claims for refunds were ‘taxes refunds’ governed by Rev. & Tax. Code § 5142, it would only bar class relief on a portion of Plaintiffs’ claims.” Plaintiffs particularly had in mind the validity of the 2007 ordinance retroactively approving the rates established by the 2005 ordinance.
After hearing brief argument, the trial court agreed with much, but far from all, of the City’s position. It overruled the City’s demurrer because “some valid causes of action remain.” The court granted the City’s motion to strike, but only in part, “granted only to allegations for refunds for the putative class and all plaintiffs other than Stutrud, for failure to exhaust administrative remedies.” The court also granted the City’s request to strike plaintiffs’ prayer for attorney fees. On the other hand, the court declined to strike plaintiffs’ allegations that the 2007 ordinance was invalid and illegal insofar as it “retroactively approve[ed] the increased sewer fees charged from April 1, 2005 through April 1, 2007.”
The trial court’s ruling was embodied in an order filed on June 4, 2007, from which plaintiffs perfected this timely appeal.
Ordinarily, orders on pleading matters such as a demurrer or a motion to strike are not appealable. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 113-114, pp. 178-179.) However, courts have recognized that “an order, whatever form it may take, which has the effect of denying certification as a class action, is an appealable order” (Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 907) because its legal effect “is tantamount to a dismissal of the action as to all members of the class other than plaintiff.” (Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 699.) Thus, as we affirmed only last year, “it is well accepted that such so-called ‘death knell’ orders in putative class actions are appealable” (Batt, supra, 155 Cal.App.4th 65, 71, fn. 3), including rulings on demurrers (id., and decisions cited) or motions to strike. (Guenter v. Lomas and Nettleton Co. (1983) 140 Cal.App.3d 460, 464; Bozaich v. State of California (1973) 32 Cal.App.3d 688, 692.)
DISCUSSION
The Existing Framework For Imposing And Challenging
Sewerage-Related Fees and Charges
The general framework for imposition of sewer-related fees and charges is set forth in Article 4 (“Sanitation and Sewerage Systems”) of Chapter 6 (“General Provisions with Respect to Sewers”) of Part 3 (“Community Facilities”) of Division 5 (“Sanitation ”) of the Health and Safety Code. An understanding of that framework is necessary to place in context the parties’ contentions on this appeal.
The framework applies to “counties, cities and counties, cities, sanitary districts, county sanitation districts, sewer maintenance districts, and other public corporations and districts authorized to acquire, construct, maintain and operate sanitary sewers and sewerage systems.” (Health & Saf. Code, § 5470, subd. (e).) These entities “shall have power . . . to prescribe, revise and collect, fees, tolls, rates, rentals, or other charges,” including “standby or immediate availability charges . . . for services and facilities furnished by it, either within or without its territorial limits, in connection with its water, sanitation, storm drainage, or sewerage system,” as well as “standby or immediate availability charges.” (Health & Saf. Code, § 5471, subs. (a) & (b).)
The charges may be imposed only following a noticed public hearing. (Health & Saf. Code, § 5473.1.) At the hearing the legislative bodies “shall hear and consider all objections or protests . . . . If the . . . protest is made by the owners of a majority of separate parcels of property,” the proposed charges may not be implemented. (Health & Saf. Code, § 5473.2.)
The Health and Safety Code framework also has a provision whereby persons subject to charges for municipal sewerage services may challenge the validity of those charges: “After fees, rates, tolls, rentals or other charges are fixed pursuant to this article, any person may pay such fees, rates, tolls, rentals or other charges under protest and bring an action against the city . . . in the superior court to recover any money which the legislative body refuses to refund. Payments made and actions brought under this section, shall be made and brought in the manner provided for payment of taxes under protest and actions for refund thereof in Article 2, Chapter 5, Part 9, of Division 1 of the Revenue and Taxation Code insofar as those provisions are applicable.” (Health & Saf. Code, § 5472.)
The Health and Safety Code framework thus incorporates by reference the tax protest-and-claim provisions in the Revenue and Taxation Code, some of which provisions are relevant here.
The first is the provision directing that “The person who paid the tax . . . may bring an action only in the superior court against a county or city to recover a tax the board of supervisors of the county or the city council of the city has refused to refund on a claim filed pursuant to Article 1 (commencing with Section 5096) of this chapter. No other person may bring such an action; but if another should do so, judgment shall not be rendered for the plaintiff.” (Rev. & Tax. Code, § 5140.)
The second is the statute mentioned in the text just quoted; it provides the grounds on which “Any taxes paid . . . shall be refunded . . . .” (Rev. & Tax. Code, § 5096.) The third directs that “No order for a refund . . . shall be made, except on a claim” filed within “four years after making of the payment sought to be refunded” that was “Verified by the person who paid the tax, his or her guardian, executor, or administrator.” (Rev. & Tax. Code, § 5097, subd. (a).) The fourth pertinent statute directs that “The claim shall be in writing, specifying . . . [¶] . . . [¶] The grounds on which the claim is founded.” (Rev. & Tax. Code, § 5097.02.) Finally, the Revenue and Taxation Code commands that “No action shall be commenced or maintained under this article . . . unless a claim for refund has first been filed pursuant to Article 1 (commencing with Section 5096.)” (Rev. & Tax. Code, § 5142, subd. (a).)
This statutory command is rigorously enforced. “A refund claim is a prerequisite to a lawsuit seeking a refund, and the refund claim must specify the ground that forms the basis for the lawsuit.” (Georgiev v. County of Santa Clara (2007) 151 Cal.App.4th 1428, 1435, citing Rev. & Tax. Code, §§ 5140-5142; accord, Northrop Grumman Corp. v. County of Los Angeles (2005) 134 Cal.App.4th 424, 436 [“Filing a claim for a refund is a prerequisite to pursuing a refund action” citing Rev. & Tax. Code, §§ 5096 et seq., 5142].) This approach reflects the long-standing judicial insistence on strict compliance with any administrative process before judicial action may be commenced. (See authorities cited in West Publishing Co. v. McColgan (1946) 27 Cal.2d 705, 712, and Batt, supra, 155 Cal.App.4th 65, 73.)
This framework must be appreciated in light of the constitutional command that “No legal or equitable process shall issue in any proceeding against this State or any officer thereof 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.” (Cal. Const., art. XIII, § 32.) Obedient to this command, the California Supreme Court held, admittedly in a different statutory context, that the courts of this are “preclude[d] . . . from expanding the methods for seeking tax refunds,” specifically class actions, unless “expressly provided by the Legislature.” (Woosley v. State of California (1992) 3 Cal.4th 758, 792 (Woosley).) Although the constitutional command applies only to the state (Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277, 281, fn. 6), this court and others have applied the principle of “no class actions without express authorization” to units of local government. (Batt, supra, 155 Cal.App.4th 65, 74-77; Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 249-250; Neecke, supra, 39 Cal.App.4th 946, 961-962; but see County of Los Angeles v. Superior Court (2008) 159 Cal.App.4th 353, 363-365 & fns. 8-9 [criticizing Batt and Neecke as “overbroad”].)
But the same commands are extended to local government by statute: “The person who paid the tax . . . may bring an action . . . to recover a tax which the board of supervisors of the county or the city council of the city has refused to refund on a claim filed pursuant to Article 1 (commencing with Section 5096) of this chapter.” (Rev. & Tax. Code, § 5140.) “No action shall be commenced or maintained . . . unless a claim for refund has first been filed pursuant to Article 1 (commencing with Section 5096).” (Rev. & Tax. Code, § 5142, subd. (a).) “No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against any county, municipality, or district, or any officer thereof, to prevent or enjoin the collection of property taxes sought to be collected.” (Rev. & Tax. Code, § 4807.)
Other courts, again including this one, have in contexts not involving class actions emphasized that principle of pay-and-sue-for-refund is no less important for units of local government. (E.g., IBM Personal Pension Plan v. City and County of San Francisco (2005) 131 Cal.App.4th 1291, 1299-1300 [suit for refund of illegal county property taxes]; Rickley v. County of Los Angeles (2004) 114 Cal.App.4th 1002, 1013-1014 [same]; Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal.App.4th 1129, 1135-1138 (Flying Dutchman) [suit to recover municipal parking taxes]; Writers Guild of America, West, Inc. v. City of Los Angeles (2000) 77 Cal.App.4th 475, 480-482 [suit to recover municipal business taxes]; Cod Gas & Oil Co. State Bd. of Equalization (1997) 59 Cal.App.4th 756, 759-760 [suit for refund of illegal county sales tax]; Kuykendall v. State Bd. of Equalization (1994) 22 Cal.App.4th 1194, 1202-1203 [same].)
Plaintiffs do not challenge the existence or the validity of the Health and Safety Code framework. What plaintiffs do challenge is the universality of the framework’s application. As they see it, it is optional for a person who wishes to contest the validity of a fee or charge such as the City’s sewer charges. This view is derived from their reading of the meaning and operation of Proposition 218, and it is to their view of the constitutional provisions that we now turn.
The Meaning Plaintiffs Attribute To Proposition 218
Proposition 218 was entitled the “Right to Vote on Taxes Act.” (Historical Notes, 2A West’s Ann. Cal. Const. (2008 supp.) foll. Art. XIII C, § 1, p. 84.) The electorate’s passage of Proposition 218 at the November 1996 general election added article XIII C and XIII D. The genesis and scope of the measure was explained by our Supreme Court as follows:
“ ‘To prevent local governments from subverting its limitations, Proposition 13 also prohibited counties, cities, and special districts from enacting any special tax without a two-thirds vote of the electorate. (Cal. Const., art. XIII A, § 4; Rider v. County of San Diego (1991) 1 Cal.4th 1, 6-7.) It has been held, however, that a special assessment is not a special tax within the meaning of Proposition 13. (Knox v. City of Oakland (1992) 4 Cal.4th 132, 141 and cases cited.) . . .
“ ‘In November 1996, in part to change this rule, the electorate adopted Proposition 218, which added articles XIII C and XIII D to the California Constitution. Proposition 218 allows only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge. (Cal. Const., art. XIII D, § 3, subd. (a)(1)-(4); see also [id.], § 2, subd. (a).) It buttresses Proposition 13’s limitations on ad valorem property taxes and special taxes by placing analogous restrictions on assessments, fees, and charges.’ ” (Apartment Assn., supra, 24 Cal.4th 830, 836-837, quoting Howard Jarvis Taxpayers Assn. v. City of Los Angeles, supra, 79 Cal.App.4th 679, 681-682.)
At the risk of some oversimplification (because there is some overlap between the two provisions), Article XIII C deals with general and special taxes, while Article XIII D deals with assessments, fees, and charges that are property-related services imposed as an incident of ownership of real property. Although the thrust of plaintiffs’ first amended complaint is that the City’s charges are invalid because they are outside the limitations imposed by subdivision (b) of section 6 of article XIII D, it is important to note that sewer-related fees or charges are not per se prohibited by Proposition 218. (See Bighorn-Desert View Water Agency v. Verjil, supra, 39 Cal.4th 205, 214-217; Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 957.)
Proposition 218 directs that its provisions “shall be liberally construed to effectuate its purposes of limiting government and enhancing taxpayer consent.” (Historical Notes, 2A West’s Ann. Cal. Const. (2008 supp.) foll. Art. XIII C, § 1, p. 85.) There is also a presumption that constitutional provisions are intended to be self-executing, unless a contrary intent is expressed. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1045, citing this court’s decision in People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1091.) Article XIII D is silent on this subject. Plaintiffs weave the directive of liberal construction and the presumption of self-execution together and conclude that “Article XIII D provides an independent basis on which to assert a refund claim.” Alternatively, plaintiffs argue that Proposition 218 impliedly repealed Health and Safety Code section 5472. These arguments are not persuasive.
“[A] command that a constitutional provision . . . be liberally construed ‘does not license either enlargement or restriction of its evident meaning.’ ” (Apartment Assn., supra, 24 Cal.4th 830, 844.) This merely begs the question of what is its “evident meaning.”
Even conceding that Proposition 218 is self-executing, that does not bar or nullify statutes touching upon the same subject. “ ‘ “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected or the duty imposed may be enforced.” [Citations.]’ [Citation.] Notwithstanding the fact that a particular provision may be self-executing, reasonable legislation enacted to facilitate its operation is valid. [Citation.] ‘It has been uniformly held that the legislature has the power to enact statutes providing for reasonable regulation and control of grants granted under constitutional provisions.’ [Citations.]” (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 28, quoting Chesney v. Byram (1940) 15 Cal.2d 460, 462, 465.)
Our Supreme Court has held that Proposition 218 is to be viewed in the historical context that goes back to Proposition 13, which added article XIII A to the California Constitution. (Apartment Assn., supra, 24 Cal.4th 830, 836.) Yet, in the wake of the passage of Proposition 13, the Legislature repeatedly passed legislation to implement its provisions. (Stats. 1979, ch. 242 [adding Rev. & Tax. Code § 50 et seq. for “Implementation of Article XIII A of the California Constitution”]; Stats. 1978, ch. 332; Stats. 1978, ch. 292.) The Legislature also passed legislation to implement Proposition 218. (Stats. 1997, ch. 38 [the “Proposition 218 Omnibus Implementation Act”].) This last measure obviously reflects the Legislature’s interpretation that Proposition 218 is not self-executing. That contemporaneous interpretation carries a strong presumption of correctness. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 488; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 246; Bell Community Redevelopment Agency v. Woosley (1985) 169 Cal.App.3d 24, 34.)
There is also a presumption that when it enacted Proposition 218 the electorate knew of the existing statutory refund system and the way it had been judicially construed. (E.g., In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11; Larson v. Duca (1989) 213 Cal.App.3d 324, 329, 330-331.) There is no language in Article XIII D indicative of an intent to nullify or supersede the established statutory procedures for seeking a refund or challenging the assessment of a fee or charge imposed as an incident of real property ownership. With a single exception, the procedural emphasis is on the procedures for imposing such fees or charges (see art. XIII D, §§ 4, 6), not the procedures for contesting them in court after they are imposed. (Barratt American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 818 [“Proposition 218 . . . does not conflict with process or procedures relating to . . . legal challenges” to property assessment].) Notably absent from Article XIII D is directory language such as “the Legislature shall adopt” (e.g., Cal. Const., art. I, § 28, subd. (b)), “provide” (e.g., Cal. Const., art. II, §§ 5, subd. (a), 11, subd. (a)), “enact” (Cal. Const., art. V, § 14, subd. (e), XVI, § 16, subd. (c)), “enforce” (e.g., Cal. Const., art. III, § 6, subd. (c)), “implement” (e.g., Cal. Const., art. IV, § 7, subd. (c)(3)) or “prescribe” (Cal. Const., art. VI, §§ 4, 19) additional legislation. Just as important, there is nothing in Proposition 218 specifying that it “shall supersede all . . . laws . . . in conflict” with it. (See Cal. Const, art. XV, § 1.) In short, there seems to have been no intent to alter the existing status quo
The sole reference in article XIII D to post-assessment legal action reads: “In any legal action contesting the validity of any assessment, the burden shall be on the agency to demonstrate that the property or properties in question receive a special benefit over and above the benefits conferred on the public at large and that the amount of any contested assessment is proportional to, and no greater than, the benefits conferred on the property or properties in question.” (Art. XIII D, § 4, subd. (f).) The general rule that would otherwise apply, even under Proposition 13, is that the burden would be on the property owner challenging an assessment. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1127; California Minerals, L.P. v. County of Kern (2007) 152 Cal.App.4th 1016, 1022-1023.) This was the standard in place prior to passage of Proposition 218. (See Knox v. City of Orland, supra, 4 Cal.4th 132, 146-149.)
Plaintiffs’ argument is also defeated by simple practicalities. If their position about Proposition 218 being self-executing is accepted, the gaps of nuts and bolts realities are daunting. For example, article XIII D is silent on when a special assessment may be challenged, so it has been held that a statute of limitation provided by a statute is applicable. (Barratt American, Inc. v. City of San Diego, supra, 117 Cal.App.4th 809, 817-818.) So far as we can ascertain, no individual or entity is allowed to sue a governmental entity for money—whether designated as damages or otherwise—without first filing an administrative claim for compensation. Nothing in the language of Proposition 218, the title and summary prepared by the Attorney General, or the competing ballot arguments, suggests an intention to nullify the detailed statutory claims provisions of the Revenue and Taxation Code that are expressly incorporated by reference in Health and Safety Code section 5472. There is no rhyme or reason to the belief that a county or municipality must be given advance notice—and the opportunity to administratively consider—any claim for money except if the basis for the claim is a violation of Proposition 218. Plaintiffs have implicitly conceded as much when they acknowledged that the statute of limitations for an administrative claim is provided by Revenue and Taxation Code section 5141, one of the statutes incorporated by reference in Health and Safety Code section 5472, and when they allege entitlement to attorney fees under the Code of Civil Procedure. (Cf. Northwest Energetic Services, LLC v. California Franchise Tax. Bd. (2008) 159 Cal.App.4th 841, 869-877 [prevailing taxpayer may recover litigation costs including attorney fees pursuant to, inter alia, Code Civ. Proc., §§ 1021.5, 1032]; Agnew v. State Bd. of Equalization (2005) 134 Cal.App.4th 899, 911-915 [prevailing taxpayer may recover litigation costs including attorney fees, citing Code Civ. Proc., §§ 1028, 1032].)
Plaintiffs’ second argument, that this detailed statutory scheme was impliedly repealed by the mere passage Proposition 218, is easily rejected. “[T]he law shuns repeals by implication, particularly where . . . ‘the prior act has been generally understood and acted upon.’ [Citation.] [¶] So strong is the presumption against implied repeals that when a new enactment conflicts with an existing provision, ‘In order for the second law to repeal of supersede the first, the former must constitute a revision of the entire subject, so that the court may say it was intended to substitute for the first.’ ” (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 868, quoting Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176.) Put another way, repeal will be found only when the measures cannot be harmonized and allowed concurrent operation. (Professional Engineers in California Government v. Kempton, supra, 40 Cal.4th 1016, 1038; Garcia v. McCutchen (1997) 16 Cal.4th 469, 477.) Plaintiffs identify no irreconcilable conflict between Article XIII D and the provisions of the operational framework provided by the Health and Safety and Revenue and Taxation codes already in place prior to passage of Proposition 218. As the preceding discussion has established, Article XIII D does not conflict with that scheme and can peacefully coexist with its continued vitality. (See Barratt American, Inc. v. City of San Diego, supra, 117 Cal.App.4th 809, 816-818.)
Neecke and Batt are Virtually Dispositive of this Appeal
Our previous decisions have more than passing resemblances to the issues plaintiffs raise here.
Neecke involved a property owner who challenged a twice reenacted “municipal services tax” imposed by the City of Mill Valley upon parcels of real property following passage of Proposition 13. Neecke filed an administrative claim for a refund of the assessed tax pursuant to Revenue and Taxation Code section 5097, and, when it was denied by operation of law, filed suit on behalf of himself and all others similarly situated. The trial court determined that the tax violated Proposition 13 because it was not submitted to voter approval. Following the recent decision in Woosley, supra, 3 Cal.4th 758, the court declined to certify the proposed class. Judgment was entered for a refund of all municipal service taxes Neecke had paid, and he was awarded attorney fees pursuant of Code of Civil Procedure section 1021.5. Both sides appealed. (Neecke, supra, 39 Cal.App.4th 946, 950-952.)
On the City’s appeal, we concluded that the trial court had erred in concluding that the tax was subject to Proposition 13. (Neecke, supra, 39 Cal.App.4th 946, 954-959.) On Neecke’s appeal, we concluded the trial court correctly ruled that Woosley prohibited a class action.
We began our analysis by noting that Neecke “filed his suit in a representative capacity, pursuant to Revenue and Taxation Code section 5097 and 5140, in reliance upon a line of cases that had interpreted those statutes to permit an individual to file on behalf of those similarly situated as well as on his own behalf. [Citations.] These cases arrived at this result by applying the ‘substantial compliance doctrine’ of City of San Jose v. Superior Court (1974) 12 Cal.3d 447 to the tax refund context . . . . [¶] Between the time Neecke’s complaint was filed and the time the class certification motion was heard, the Supreme Court decided Woosley. In that case, the Supreme Court specifically held that ‘the holding in City of San Jose v. Superior Court . . . should not be extended to include claims for tax refunds,” and expressly disapproved the mentioned “line of cases.” (Neecke, supra, 39 Cal.App.4th 946, 960-961.) “Contrary to the disapproved decisions, the Supreme Court [in Woosley] reasoned that, because the California Constitution vests the Legislature with plenary control over the manner in which tax refunds may be obtained (Cal. Const., art XIII, S 32), a taxpayer must show strict, rather than substantial, compliance with the administrative procedures established by the Legislature.” (Id. at pp. 960-961.)
Therefore, we reasoned, “If Woosley applies to the present case, it is fatal to Neecke’s attempt to certify the class. Neecke brought the present action pursuant to Revenue and Taxation Code sections 5097 and 5140 . . . . If anything, these statutory provisions are even more restrictive than the statutory provisions at issue in Woosley. Neither of these statutes provide for a class claim or suit such as the one Neecke attempted to certify.” (Neecke, supra, 39 Cal.App.4th 946, 961-962.)
We then disposed of Neecke’s contention: “Woosley does not apply to his case. He reasons that since Woosley relied upon section 32 of article XIII of the state Constitution, and since that provision had previously been held to apply to the state, but not to local governments, Woosley is inapplicable to refund actions against local municipalities.” (Neecke, supra, 39 Cal.App.4th 946, 962, fns. omitted.) We said:
Woosley Woosley Woosley Schoderbek v. Carlson Woosley City of San Jose v. Superior Court Schoderbek Schoderbek Woosley Woosley Neecke supraNext, we rejected Neecke’s argument that a class action could proceed under authority of section 382 of the Code of Civil Procedure: “Foreseeing that we might so conclude, Neecke argues that the general statute authorizing class actions, Code of Civil Procedure section 382, constitutes a manner provided by statute for obtaining tax relief, as required by Woosley and that his claim falls under that statute. We disagree. First, Neecke’s argument ignores that filing an administrative claim under Revenue and Taxation Code section 5097 is a prerequisite to bringing an action for a refund under Revenue and Taxation Code section 5140, the section under which Neecke filed this action. As explained above, section 5097 does not provide for a class claim. Code of Civil Procedure section 382 cannot be used to eliminate the requirement of complying with the claim statute.” (Neecke, supra, 39 Cal.App.4th 946, 963; accord, Batt, supra, 155 Cal.App.4th 65, 73-77.)
We ended our discussion by rebuffing a policy argument: “The one contention raised by Neecke which is not implicitly or explicitly addressed by Woosley is that to apply Woosley retroactively to his suit would contravene public policy by thwarting the goals of Proposition 13. Even Neecke recognizes, however, that competing public policies are implicated in this case: the tax relief goals of Proposition 13 and the preservation of the fiscal stability of public entities. Contrary to Neecke’s contention, it is not at all clear that his preferred public policy goal trumps the other.” (Neecke, supra, 39 Cal.App.4th 946, 963.)
Finally, we addressed the attorney fee award made by the trial court: “Obviously, in light of our conclusion that the current version of the tax is not a constitutionally infirm ‘special tax,’ the issue of whether Neecke should receive attorney fees has been significantly altered. The City argues in a footnote that, if we rule in its favor on the special tax issue, then Neecke is not entitled to any attorney fees. Neecke is silent on the issue. We, therefore, exercise our discretion to instruct the trial court to consider on remand whether, in light of our decision, but also in light of the fact that he prevailed regarding the two earlier ordinances, Neecke should be awarded attorney fees pursuant to Code of Civil Procedure section 1021.5 and, if so, in what amount.” (Neecke, supra, 39 Cal.App.4th 946, 965-966.)
To judge from plaintiffs’ opening brief, we might as well not have bothered with this analysis, or to have reiterated it in Batt. The sole reference to Neecke in the opening brief is cited as support on why the trial court erred in striking the prayer for attorney fees. Batt is mentioned not at all. Plaintiffs merely try to revive the substantial compliance doctrine of City of San Jose v. Superior Court, supra, 12 Cal.3d 447, without mentioning the curtailing construction given it in Woosley, Neecke, Batt, and other decisions.
Woosley is mentioned only once in plaintiffs’ brief, as support for the statement that “The City attempted to characterize this action as a tax refund case because there are severe limitations on tax refund class actions.” But what Woosley held was that there must be strict compliance with statutory refund procedures: substantial compliance is not good enough. (Woosley, supra, 3 Cal.4th 758, 788-793.)
This principle is by itself sufficient to defeat plaintiffs’ attempt to blow off Health and Safety Code section 5472 by treating it as merely “permissive” at the fee payer’s election. In enacting that statute in 1949 (Stats. 1949, ch. 865, § 2)—long before Proposition 218, as plaintiffs necessarily concede—the Legislature provided a statutory refund procedure. It must be applied, followed, and complied with by persons seeking a refund of sewer-related fees and charges. That statute incorporates by reference Revenue and Taxation Code sections 5097 and 5140, which we have already held in Neecke do not permit class actions. (Neecke, supra, 39 Cal.App.4th 946, 961-963.)
The same is true for plaintiffs’ argument that the administrative claim filed by Stutrud was sufficient to serve as the administrative claims “for all class members,” including Bosshard. This is identical to the effort to escape Revenue and Taxation Code sections 5097 and 5140 we rejected in Neecke. (Neecke, supra, 39 Cal.App.4th 946, 961-963.)
In an apparent attempt to evade the rule against tax refund class actions, plaintiffs argue that they are not seeking return of taxes, but sewer user fees and charges, as we held in Stutrud I and as plaintiffs noted in the trial court. (See fn. 4, ante.) But nomenclature is not dispositive. Just because the Revenue and Taxation procedures applicable to refund of taxes that were incorporated by reference in Health and Safety Code section 5472, that does not invalidate those procedures or make them “optional.” Section 5472 is not tied to taxes but to “fees, rates, tolls, rentals or other charges” imposed by a county, city, or special district for sewerage services. It is the governing statute. The fact that the Legislature pulled in tax refund procedure statutes without changing taxes to “fees, rates, tolls, rentals or other charges” is a labor saving device of no substantive significance. Moreover, Woosley itself dealt with a claim for refund of vehicle license fees. (See Woosley, supra, 3 Cal.4th 758, 789-790.)
Nor are we impressed with plaintiffs’ argument that “[t]hey have not alleged a section 5472 claim.” That statute may not be cited in their first amended complaint, but plaintiffs cannot deny that Stutrud invoked “Section 5097 and 5141 of the Revenue and Taxation Code” in the administrative claim for refund he attached as an exhibit to his original complaint. (See fn. 2 and accompanying text, ante.) Both of these provisions are located in “Article 2, Chapter 5, Part 9, of Division 1 of the Revenue and Taxation Code,” and both address “payment of taxes under protest and actions for refund thereof.” The quoted language is from section 5472.
Plaintiffs did not allege the fact of Stutrud’s administrative claim with anything like the detail and particularity used in Stutrud’s verified original complaint. We cannot ignore the fact that this information was omitted from the first amended complaint. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742; Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836; Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044-1045; 5 Witkin, Cal. Procedure, supra, Pleading, § 1122, p. 577.) An examination of the two pleadings demonstrates that Stutrud’s administrative claim did not suffice as a claim for Bosshard or any other member of the putative class, and because the first amended complaint does not allege that Bosshard submitted his own claim, which is a jurisdictional prerequisite to an action for a refund (Health & Saf. Code, § 5472; Rev. & Tax. Code, §§ 5140, 5142; Georgiev v. County of Santa Clara, supra, 151 Cal.App.4th 1428, 1435; Northrop Grumman Corp. v. County of Los Angeles, supra, 134 Cal.App.4th 424, 436), it follows that Bosshard could not join Stutrud’s action as an additional plaintiff and putative class representative. Thus, there was no error in striking his name, and the allegations naming him, from the first amended complaint.
Our decisions in Neecke and Batt establish that existing procedures for seeking a judicial refund are not optional. Precisely the opposite. If such procedures are in place, they must be followed, and the compliance with them must be strict. Here, those procedures require an administrative claim before invoking the jurisdiction of the courts. Stutrud did this, but Bosshard did not. Each step of the process can only be done on an individual basis. Plaintiffs’ attempt to expand the litigation commenced by Stutrud to a class action was contrary to a long-standing statutory scheme. The mere passage of Proposition 218 did not turn that scheme into a dead letter. It thus does not diminish what we held in Batt: “[I]f there is such a process, the courts require strict compliance with it . . . . [Citations.] A corollary to the strict compliance principle is that courts are without authority to relax statutory procedures for tax refunds.” (Batt, supra, 155 Cal.App.4th 65, 73.) We did not relax in Neecke or in Batt, and we do not do so here.
The State Of Stutrud’s Causes of Action
In our opinion in Batt, we were considering a judgment of dismissal entered after a general demurrer had been sustained without leave to amend. The nature of our inquiry perforce obliged us to examine whether any of the causes of action that fell to the demurrer was good. Strictly speaking, we are not required to make that same inquiry here because the City did not interpose a general demurrer, but a special demurrer, which in any event the trial court overruled because it concluded that “some valid causes of action remain.” The City has not appealed that decision or challenged it in its brief. Nevertheless, like Banquo’s ghost, the issue lingers. For the benefit of the parties and the trial court in the future, we believe a few observations are appropriate.
In Batt, we reviewed the authorities establishing that the guarantees of due process of the United States and California constitutions “require[] only that government provide a procedure which, at some point, provides the taxpayer a meaningful opportunity to contest the legality of the exaction,” and that California has satisfied that requirement by making a refund suit the exclusive means of judicial review of the exaction process. (Batt, supra, 115 Cal.App.4th 65, 72-73.)
Ms. Batt, like Mr. Stutrud here, had gone through the administrative process before filing the refund suit she wanted to maintain as a class action. Her complaint alleged a number of creatively-framed causes of action. She contended on appeal to this court that “her causes of action are framed in a manner that does not require compliance with either the principle of requiring express authorization of the class action remedy or the rule that a plaintiff must complete the [administrative] claims process prior to applying for relief in the courts.” We rejected this contention, noting that “Artful pleading has not been allowed to carve out exceptions” to the class action principle with procedures or remedies derived from equity. (Batt, supra, 155 Cal.App.4th 65, 79.)
It is implicit in Batt that by “relief” we meant recovering money already paid, and for that form of redress, an action for a refund is the exclusive remedy. (See Batt, supra, 155 Cal.App.4th 65 72-73 and decisions cited; Willbarb Petroleum Carriers, Inc. v. Cory (1989) 208 Cal.App.3d 269, 278.)
We then examined why Batt’s causes of action were correctly felled by a general demurrer: “A constructive trust is ‘not an independent cause of action but merely a type of remedy’ [citation], and an equitable remedy at that. [Citation.] The same is true of injunctive relief [citation], declaratory relief [citation], an accounting [citations] and the common count [citations]. Because there is an adequate remedy at law, [namely, the statutory refund procedure,] no tool of equity can be used to subvert or evade that remedy. [Citations.] This principle of deference operates in tax refund cases.” (Batt, supra, 155 Cal.App.4th 65, 82.)
We also noted that “the class action is also ‘an invention of equity,’ notwithstanding its ‘limited codification in Code of Civil Procedure section 382.’ [Citation.] It, too, is therefore subordinate to the statutory procedures governing administrative claims and judicial actions for refunds. (Neecke, supra, 39 Cal.App.4th 946, 963; [citation].)” (Batt, supra, 155 Cal.App.4th 65, 82.)
Our discussion in Batt was about how artful pleading could not be used to circumvent the requirements of exhausting of administrative remedies (i.e., putative class members such as Bosshard who are not shown to have gone through the administrative claim process), or more importantly, to overcome the absence of statutory authorization to maintain a class action. In other words, pleading causes of action for equitable remedies could not be used to justify what in Flying Dutchman, supra, 93 Cal.App.4th 1129, 1140, we termed “prepayment . . . relief.” But we did not hold in Batt that equitable remedies were categorically precluded in a tax refund case.
Here, Stutrud, like Ms. Batt, has paid the new charges and exhausted his administrative remedies. As a result of our decision in Stutrud I, he is entitled to proceed against the City with his individual causes of action that have now survived the pleading stage. Stutrud’s causes of action for an injunction, a constructive trust, and declaratory relief are thus no longer subject to our comments in Batt. Stutrud is now entitled to apply for the various forms of equitable relief specified in his first amended complaint. (See Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 821-822.)
The scope of the exhaustion, that is, whether it included Stutrud’s constitutional claims, is a matter of some controversy in the briefs. Citing Andal v. City of Stockton (2006) 137 Cal.App.4th 86, which discusses Flying Dutchman, supra, 93 Cal.App.4th 1129 and Writers Guild of America, West, Inc. v. City of Los Angeles, supra, 77 Cal.App.4th 475, Stutrud in effect argues that he was not allowed to have decided the challenge in his administrative claim (see fn. 2, ante) to the constitutionality of the charges. The City claims otherwise. Although Revenue and Taxation Code section 5096 states that grounds for refund are if taxes are either “Erroneously or illegally collected” or “Illegally assessed or collected” (id., subds. (b) & (c)), and that the claim should be decided by the city council (id., § 5141), the City points to a very different system. The chapter of the Rohnert Park Municipal Code governing “Billing And Payment Of Water And Sewer Service Charges” specifies that the claim is heard by a “utility billing supervisor,” whose decision may be appealed to the city manager. (Rohnert Park Municipal Code, § 13.44.035, subds. (b)-(c).) Whether these two officials were legally competent to decide Stutrud’s constitutional objection is not clear. (Cf. Cal. Const., art. III, § 3.5 [state administrative agency prohibited from declaring statute unconstitutional or refusing to enforce it].) Whether as a matter of local political reality one should expect non-elected functionaries to overthrow an established revenue stream may be doubted. An argument might be made that any relief offered by such an administrative system would be illusory and futile to pursue, and was suggested by plaintiffs in the trial court.
There remains only the cause of action alleged for “assumpsit.” It too is a creature of equity. (See Philpott v. Superior Court (1934) 1 Cal.2d 512, 518-519.) Citing our decision in McBride v. Boughton (2004) 123 Cal.App.4th 379, 394, plaintiffs note that their “assumpsit claim . . . is the equivalent of a common count.” It is thus likewise no longer subject to what we noted in Batt. We further note that the assumpsit claim is essentially redundant, because “a suit for a refund of taxes is in the nature of a suit in assumpsit.” (Northrop Aircraft v. Cal. Emp. Etc. Com. (1948) 32 Cal.2d 872, 879.)
The Trial Court Erred In Striking
The Prayer For Attorney Fees
Although the City asked in the actual notice of its motion that the attorney fees prayer be stricken, no supporting argument was provided until the City filed its reply to plaintiffs’ opposition. The City’s argument, in its entirety, was as follows: “Plaintiffs request attorneys’ fees pursuant to Code of Civil Procedure section 1021.5. Code of Civil Procedure section 1021.5 provides: ‘Upon motion, a court may award attorneys’ fees to a successful party . . . in any action which has resulted in the enforcement of an important right affecting the public interest . . . .’ Here, if the class allegations are dismissed, there is no great issue of public interest at stake. In the event that Plaintiffs were successful on the merits, the only individuals who would benefit from their success would be themselves. Without a public interest at stake, Code of Civil Procedure section 1021.5 is inapplicable.” The trial court provided no explanation as to why it granted this part of the City’s motion to strike.
Having already decided that the complaint could not be thrown out entirely, a conclusion the City does not challenge, it does not appear that this portion of the complaint’s prayer qualifies as an “irrelevant, false, or improper matter” apparent “on the face of the challenged pleading. (Code Civ. Proc., §§ 436, subd. (a), 437, subd. (a).)
We agree with Stutrud—who, in light of the foregoing, is the only remaining plaintiff to whom this applies—that the City’s perspective is overly narrow. And incorrect. By dint of his efforts, Stutrud’s lawsuit has forced the City not only to accept that the sewer fees are subject to Proposition 218, but also to reenact the fees following the procedures established by Proposition 218. The City candidly admitted that the need for passage of a new ordinance reestablishing the fees was due to Stutrud’s victory in Stutrud I. Compelling a recalcitrant municipality to comply with a constitutional provision cannot be dismissed as a negligible benefit to the citizens of Rohnert Park. Thus, it is hardly an outlandish notion to believe that Stutrud’s lawsuit was the catalyst for the City’s change of position and that he may be entitled to fees for his past efforts. (See Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553.) Moreover, we do not know whether Stutrud will achieve additional success with his quest for declaratory relief invalidating the second ordinance.
One of the precatory paragraphs of the second ordinance recites: “WHEREAS, The City wishes to confirm those sewer service rates adopted on February 16, 2005 are considered effective April 1, 2005 and April 1, 2006, respectively, in light of new precedent related to the applicability of Proposition 218 . . . .” In light of the chronology already recited, the italicized language seems an obvious reference to our decision on the first appeal.
Of course, we realize that any actual fee request will be entrusted to the discretion of the trial court (see Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 660-661 and authorities cited), and nothing we decide or say here is intended to express any view as to how that discretion should be exercised.
DISPOSITION
That portion of the order striking the prayer request for attorney fees is reversed. The order is affirmed in all other respects. The parties shall bear their respective costs of appeal.
We concur: Haerle, Acting P.J. Lambden, J.
The refund request was verified by Stutrud under penalty of perjury and was submitted by his counsel to the City on August 3, 2005. The written request was attached as an exhibit to Stutrud’s complaint.
Of course, because the trial court’s order struck every mention of Bosshard from the complaint, its legal effect was certainly tantamount to a dismissal as to him (Daar v. Yellow Cab. Co., supra, 67 Cal.2d 695, 699), and thus is appealable by him as a final judgment, notwithstanding any question concerning maintenance of a class action. (See Wilson v. Sharp (1954) 42 Cal.2d 675, 677; Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1034, fn. 3.)
In any event, it appears from the claim attached as an exhibit attached to Stutrud’s original complaint, but not to the first amended complaint, that his claim was in fact denied by the city council. Moreover, because the trial court declined the City’s motion to strike the allegation that “The City is prohibited from retroactively approving the increased sewer fees charged from April 1, 2005 through January 22, 2007,” it implicitly determined that Stutrud’s claim was sufficient to satisfy the exhaustion of administrative remedy doctrine even as to the reenacted charges.