LOEFFLER v. TARGET CORPORATION

Respondent’s Reply to Supplemental Brief

Cal.Jan 27, 2014

707 WILSHIRE BOULEVARD MORRISON & FOERSTER LLP MORRISON | FOERSTER SUITE 6000 NEW YORK, SAN FRANCISCO, LOS ANGELES rosancntes, roae, CALIFORNIA 90017-3543 DENVER, NORTHERN VIRGINIA, WASHINGTON, D.C, P. 2213. 0 OKYO, LONDON, BRUSSELS, Ct. AK 1 ; Aine, SHANGHAI, HONG KONG \ Mal ee aM IEE “ AWWMOFS.C , VIA UPS NEXT DAY DELIVERY WRITER’S DIRECT CONTACT +(213) 892-5929 MVOGEL@MOFO.COM January 24, 2014 SUPREME COURT Chief Justice Tani Gorre Cantil-Sakauye F | [L. E D and Associate Justices SUPREME COURT OF CALIFORNIA JAN 27 2014 350 McAllister Street San Francisco, California 94102-4797 Frank A. McGuire Clerk DeputyRe: Loeffler v. Target Corporation No. $173972 Dear Chief Justice Cantil-Sakauye and Associate Justices: In its December 16, 2014 order requesting simultaneous supplemental briefs on the questions about whether Ms. Loeffler’s claims might have more traction if Target had failed to remit the amountcollected as sales tax reimbursementto the State Board of Equalization, the Court generously includedthe rightto file reply briefs. There is very little we can say at this point other than a statement of the obvious — it is as though Ms. Loeffler and Target are talking about two different cases. First, Ms. Loeffler says this case involves “two representations” — one that the sale is subject to sales tax (a determination that must be made by the Board, not the courts), the other that the retailer will remit that amount to the Board. (Loeffler Supp. Brief, p. 1.) Although she never alleged that Target was intentionally disregarding tax exemptions, she suggests now that this may be what we are doing (id., p. 4), and that this is clearly unfair even if Target would not thereby profit. She simply ignores the fact that, until the Board establishes the tax-exempt nature of a particular sale, all of a retailer’s gross receipts are presumptively subject to sales tax. (Rev. & Tax. Code, § 6091.) She ignores the fact that Target would rather charge less than its competitors, not more. (ABOM 25, fn. 19.) MORRISON FOERSTER Chief Justice Tani Gorre Cantil-Sakauye and Associate Justices SUPREME COURT OF CALIFORNIA January 24, 2014 Page Two Second, she assumes her own conclusion — thatall sales of hot coffee to go are exempt. Butthat is far from true. As previously explained, the regulations on this subject are not a model ofclarity, leaving Target with no choice but to fall back on the presumption of taxability — and the Board has never suggested that Target is acting inappropriately. (ABOM 29-30,fn. 22.) Third, Ms. Loeffler’s current insistence that her claims can go forward without regard to whether Target profits from its alleged wrongdoing at least tacitly admits Ms. Loeffler’s inability to allege that Target profits from the alleged wrongdoing. (Loeffler Supp. Brief, p. 6, fn. 4 [“But Plaintiffs have never premised their claims against Target on an assumption that Target kept the money”].) Fourth, Ms. Loeffler’s supplemental brief suggests this entire case is a fishing expedition. Had she first complained to the State Board of Equalization, she could have obtained a determination whether, on the particular facts of interest to her (depending on where in the store the purchase was made and whatelse was purchased at the sametime), Target’s sale of hot coffee “to go” was taxable. But she didn’t do that — she simply sued Target and started off on a wild goose chase, hoping she had selected a retailer who would fit her desired mold. She shot at the wrongretailer. Forall the reasons previously explained in Target’s briefs and in the Court of Appeal’s well reasoned opinion, Target submits that there are two choices — affirm the Court of Appeal in a published opinion, or dismiss review in this case with an order directing republication of the Court of Appeal opinion, saving for another day (and a more appropriate case) any questions this Court may have about whether the rules might be different for a dishonestretailer. Respectfully submitted, Miriam A. Vogel cc: Per attached proof of service PROOFOF SERVICE I declare that I am employed with the law firm of Morrison & Foerster LLP, whose address is 707 Wilshire Boulevard, Los Angeles, California 90071-3543. I am not party to the within cause, and I am over the age of eighteen years. I further declare that on January 24, 2014, I served a copyof: TARGET’S SUPPLEMENTAL REPLY BRIEF BY U.S. MAIL [Code Civ. Proc sec. 1013(a)] by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows, for collection and mailing at Morrison & Foerster LLP, 707 Wilshire Boulevard, Suite 6000, Los Angeles, California — 90017-3543 in accordance with Morrison & Foerster LLP’s ordinary business practices. - Tam readily familiar with Morrison & Foerster LLP’s practice for collection and processing of correspondence for mailing with the United States Postal Service, and know thatin the ordinary course of Morrison & Foerster LLP’s business practice the document described above will be deposited with the United States Postal Service on the samedate thatit is placed at Morrison & Foerster LLP with postage thereon fully prepaid for collection and mailing. Please see attached Service List. . I declare under penalty ofperjury underthe lawsofthe State of California that the foregoing is true and correct. Executed at Los Angeles, California, January 24, 2014. C. Bibeau COL.hoa (typed) (signature) la-1235434 SERVICE LIST Loeffler. v. Target Corporation California Supreme Court Case No. $173972 Joseph J. M. Lange Lange & Koncius, LLP 222 North Sepulveda Boulevard Suite 1560 EI] Segundo, CA 90245 Jeffrey Alan Koncius Kiesel Law LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211 Leslie A. Bailey Arthur H. Bryant Public Justice, P.C. 555 12th Street, Suite 1230 Oakland, CA 94607 Benjamin Israel Siminou Thorsnes Bartolotta McGuire LLP 2550 Fifth Avenue, 11th Floor . San Diego, CA 92103 Phillip Jon Eskenazi Hunton & Williams, LLP 550 W. Hope Street, Suite 2000 Los Angeles, CA 90071 J. Bruce Henderson Attorney at Law 4294 Kendall Street San Diego, CA 92109 Barry Dion Keene Attorney at Law 1047 - 56th Street Sacramento, CA 95819 Lal207611 Attorneysfor Plaintiffs and Appellants Kimberly Loeffler, etal. Via U.S. mail Attorneysfor Plaintiffs and Appellants Kimberly Loeffler,et al. Via U.S. mail Attorneysfor Plaintiffs and Appellants Kimberly Loeffler, et al. Via U.S. mail Amicus Curiae CarmenHerr, Heidi Spurgin, Mark Hegarty, Joseph Thompson Via U.S. mail Amicus Curiae Albertson's, Inc. Via U.S. mail Amicus Curiae William T. Bagley Via U.S. mail Amicus Curiae Barry Dion Keene Via U.S. mail SERVICE LIST Loeffler. v. Target Corporation California Supreme Court Case No. 8173972 John Lee Waid California State Board of Equalization 450 N Street, MIC: 82 Sacramento, CA 95814 Sharon J. Arkin The Arkin Law Firm 333 S. Grand Avenue, 25th Floor Los Angeles, CA 90012 Pamela Pressley Foundation for Taxpayer & Consumer Rights 1750 Ocean Park Boulevard, Suite 200 — Santa Monica, CA 90405 Richard Thomas Williams Holland & Knight, LLP 633 West Fifth Street, 21st Floor Los Angeles, CA 90013 Andrew EugeneParis Alston & Bird, LLP 333 S. HopeStreet, 16th Floor Los Angeles, CA 90071 ThomasAlistair Segal The Kick Law Firm, APC 201 Wilshire Boulevard, Suite 350 Santa Monica, CA 90401 Lal207611 Amicus Curiae State Board of Equalization Via U.S. mail Amicus Curiae ConsumerAttorneys of California Via U.S. mail Amici Curiae ~ Consumer Watchdog, Foundation for Taxpayer & Consumer Rights, National Association of Consumer Advocates, Public Good Via U.S. mail Amici Curiae CVS Caremark Corporation, CVSPharmacy,Inc. Via U.S. mail Amicus Curiae DIRECTV,Inc. Via U.S. mail Amici Curiae Avi Feigenblatt, Gregory Fisher and Michael Mcclain Via U.S. mail SERVICE LIST Loeffler. v. Target Corporation California Supreme Court Case No. $173972 Taras Peter Kihiczak The Kick Law Firm, APC 900 Wilshire Boulevard, Suite 230 Los Angeles, CA 90017 Albert Douglas Mastroianni Mastoianni Law Firm 633 West Fifth Street, 28th Floor Los Angeles, CA 90013 Alexandra Robert Gordon Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Joyce E. Hee Office ofthe Attorney General 1515 Clay Street, Suite 2000 P.O. Box 70550 Oakland, CA 94612 Albert Norman Shelden Office of the Attorney General 110 West "A"Street, Suite 1100 San Diego, CA 92101 Frederick W. Kosmo Wilson Turner Kosmo LLP 550 West "C" Street, Suite 1050 San Diego, CA 92101 | Theresa Osterman Stevenson Wilson Turner Kosmo LLP 550 West "C" Street, Suite 1050 San Diego, CA 92101 Lal207611 Amicus Curiae Michael McClain Via U.S. mail Amicus Curiae Jason Frisch Via U.S. mail Amicus Curiae Kamala Harris Via U.S. mail Amicus Curiae Kamala Harris Via U.S. mail Amicus Curiae Kamala Harris Via U.S. mail Amicus Curiae PETCO Animal Supplies Stores, Inc. Via U.S. mail Amicus Curiae PETCO AnimalSupplies Stores, Inc. Via U.S. mail SERVICE LIST Loeffler. v. Target Corporation California Supreme Court Case No. 8173972 Judith Esther Posner Amicus Curiae Reed Smith, LLP Rite Aid Corporation 355 S. Grand Avenue, Suite 2900 Los Angeles, CA 90012 Via U.S. mail Margaret Anne Grignon Attorneysfor Amicus Curiae Reed Smith, LLP Walgreen Company 355 S. Grand Avenue, Suite 2900 Los Angeles, CA 90071 Via U.S. mail Clerk of the Court Via U.S. mail California State Court of Appeal Second Appellate District Division Three 300 South Spring Street, 2nd Floor Fourcopies North Tower Los Angeles, CA 90013-1213 Clerk of the Court Via U.S. mail Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 Attn: The Honorable Michael L. Stern Lal207611