WHEATHERFORD v. CITY OF SAN RAFAEL

Appellant’s Petition for Review

Cal.June 26, 2014

$219567 No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CHERRITY WHEATHERFORD, SUPREME COURT Plaintiff/Appellant/Petitioner, F L. E D vs. JUN 26 2014 CITY OF SANTA RAFAEL,etal., Frank A. McGuire Clerk ~ Deputy ] Defendants/Respondents. APPELLANT?’S PETITION FOR REVIEW On Review of the Published Decision of the Court ofAppeal, First District, Division One, Wheatherford v. City ofSan Rafael (May 22, 2014) 226 Cal.App.4th 460 [Petition for Rehearing Denied June 16, 2012] . Appellate Case No. A138949 On Appeal from the Judgement of the Superior Court of the State of California, County of Marin, the Honorable Roy Chernus, Judge, Presiding Superior Court Case No. CIV 1300112 Mark T. Clausen (Calif. SB# 196721) Attorney at Law 769 Carr Avenue Santa Rosa, California 95404 Telephone: (707) 235-3663 Facsimile: (707) 542-9713 Email: MarkToddClausen@yahoo.com Attorney for Plaintiff/Appellant/Petitioner Cherrity Wheatherford No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CHERRITY WHEATHERFORD, Plaintiff/Appellant/Petitioner, VS. CITY OF SANTA RAFAEL,etal., Defendants/Respondents. APPELLANT’S PETITION FOR REVIEW On Review of the Published Decision ofthe Court ofAppeal, First District, Division One, Wheatherford v. City ofSan Rafael (May 22, 2014) 226 Cal.App.4th 460 [Petition for Rehearing Denied June 16, 2012] Appellate Case No. A138949 On Appeal from the Judgement of the Superior Court of the State of California, County of Marin, the Honorable Roy Chernus, Judge, Presiding Superior Court Case No. CIV 1300112 Mark T. Clausen (Calif. SB# 196721) Attorney at Law 769 Carr Avenue Santa Rosa, California 95404 Telephone: (707) 235-3663 Facsimile: (707) 542-9713 Email: MarkToddClausen@yahoo.com Attomeyfor Plaintiff/Appellant/Petitioner Cherrity Wheatherford TABLE OF CONTENTS Topic Page NOTICE OF PETITION 1.2.0. 0..0..0 000.00... cee ee eee 1 INTRODUCTION 2... 0.ccee ee cece eee eae 2 ISSUES PRESENTED FOR REVIEW ...................022 00000] 5 SUMMARY OF GROUNDSFOR REVIEW ......................0. 5 PROCEDURAL HISTORY AND STATEMENTOF FACTS ......... 10 ARGUMENT....... 0.00. cece cee cece tenn eens 15 I. REVIEW SHOULD BE GRANTED TO SETTLE THE IMPORTANT QUESTION OF WHAT TYPE OF TAXES A PLAINTIFF MUST PAY, OR BE LIABLE TO PAY, TO HAVE TAXPAYER STANDING UNDER SECTION 526a .... 15 CONCLUSION ...... 2...cccee eee ee 24 CERTIFICATE OF WORD COUNT ........... 00.0.0 c eee ee eee 24 EXHIBIT 1: COURT OF APPEAL OPINION PROOF OF SERVICE ... 0.0.0... cee eeeee Last Page TABLE OF AUTHORITIES Cases Page(s) Adams v. DMV (1974) 11 Cal.3d 146 2...ccceee een eens 17 Alviso v. Sonoma County Sheriff's Dept. (2010) 186 CalApp.4th 198 2.0...cceens 14 Arrieta v. Mahon (1982) 31 Cal.3d 381 2...cece nee 5, 10, 13, 16 Blair v. Pitchess (1971) 5 Cal.3d 258 0.0.ccccence 14, 16 Boddie v. Connecticut (1971) 401 US. 3712ccceen eens 9 Chiatello v. City and County ofSan Francisco (2010) 189 CalApp.4th 472 2.0ccceens 23 City ofOntario v. Superior Court (1970) 2 Cal.3d 3352cccene n ences 17 CHP v. Sup. Ct. (3rd Dist. 2008) 162 Cal.App.4th 1144 2.0.0.0... 0. eee eee 14 Church ofScientology v. Wollersheim (1996) 42 Cal.App.4th 628 2.0...ceceene 8 Connerly v. State Personnel Bad. (2001) 92 Cal.App.4th 16 2.0...cecene 21 Cornelius v. Los Angeles County etc. Authority (2™ Dist., Div. 4, 1996) 49 Cal.App.4th 1761 ......... 4,5, 11, 12, 21, 22 County ofSanta Clara v. Sup. Ct. (Naymark) (2009) 171 Cal.App.4th 119 0...ceccc eee eee 23 i C.R. Drake v. City ofLos Angeles (1952) 38 Cal.2d 872 0...0.ectenes 17 Dibb v. County ofSan Diego (1994) 8 Cal.4th 1200 2...cee18 Earl v. Sup. Ct. (1978) 6 Cal.3d 109 2...ene9 Folsom v. Butte County Assn. ofGovts. (1982) 32 Cal.3d 668 1.0... 0.ccec ee teens 8 Gebert v. Patterson (1* Dist., Div. 4, 1986)186 Cal.App.3d 868 ...................0005. 7 Griffin v. Illinois (1956) 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055] 20... eee 9 Harbor v. Deukmejiian (1987) 43 Cal.3d 1078 0.0.0.0...cecetenes 18 Harman v. City and County ofSan Francisco (1972) 7 Cal.3d 150 2...ceeens 17 Harris v. Capital Growth Investors (1991) 52 Cal.3d 1142 2...eeenee 18 Howard Jarvis Taxpayers Assn. v. City ofLa Habra (2001) 25 Cal.4th 809 2...ceeeens 19 Irwin v. City ofManhattan Beach (1966) 65 Cal.2d 13 20... cnents 14 Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814 2.0...ceees 8 Kaatz v. City ofSeaside (6" Dist. 2006) 143 Cal.App.4th 13 ....... 0... eee eee eee ee 23 iii Knoll v. Davidson (1974) 12 Cal.3d 335 2...eee cence nen nnes 18 Love v. Keays (1971) 6 Cal.3d 3392ccece ete e ee nes 17 Lundberg v. County ofAlameda (1956) 46 Cal.2d 644 2.0ccccece cee een nes 17 McKinny v. Board ofTrustees (1982) 31 Cal.3d 79 2...cccenc cet e nes 18 O’Connell v. City ofStockton formerly at (2005) 27 Cal.Rptr.3d 696 2.0.0... cece cece 22 O’Connell v. City ofStockton (2007) 41 Cal.4th 1061 2...ccc cee nee 6, 19, 22 Samples v. Brown (2007) 146 Cal.App.4th 787 2.0... ccc cece 6, 14, 22 Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863 20...ccceen ene ees 18 Santa Barbara Co. Coalition Against Automobile Subsidies v. Santa Barbara Co. Assn. ofGovernments (2"* Dist., Div. 6, 2008) 167 Cal.App.4th 1229 ..............00.. 11, 12 Serrano v. Priest (1971) 5 Cal.3d 584 2...eens6,17, 16 Simpsonv. City ofLos Angeles (1953) 40 Cal.2d 271 2.ccccee eee e eens 17 Sipple v. City ofHayward (2" Dist., Div. 2, April, 8, 2014) — Cal.App.4th — , B242893 .......... 14 Smith v. Santa Rosa Police Department (1*Dist., Div. 3, 2002) 97 Cal.App.4th 546 ..............0...0000. 14 iv Stanson v. Mott (1976) 17 Cal.3d 206 2.2...ceeteens 18 Sundance v. Municipal Court (1986) 42 Cal.3d 1101 2...cceens 18 Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069 22... 2. Lee eee 4,5, 10, 13, 16, 20, 22 Torres v. City ofYorba Linda (4° Dis., Div. 3, 1993) 13 Cal.App.4th 1035 .......... 4,5, 11, 12, 19, 20 Van Atta v. Scott (1980) 27 Cal. 3d 424 2...eee 1, 3, 9, 14, 23 Vasquez v. State ofCalifornia (2008) 45 Cal.4th 243 2...eeeens 19 White v. Davis (1975) 13 Cal.3d 757 0...ceeeee ene eee 16 Williams v. Garcetti (1993) 5 Cal.4th 561...ceeeens 18 Wirin v. Parker (1957) 48 Cal.2d 890 [313 P.2d 844] 2...eee 17 Statutes Code of Civil Procedure Section 526a ... 0.0.2... 00.00. ce ee eee passim TO: THE HONORABLECHIEF JUSTICE CANTIL- SAKAUYE AND THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: PLEASE TAKE NOTICEthatin accordance with Rule 8.500 of © the California Rules of Court, plaintiff and appellant Cherrity Wheatherford hereby respectfully petitions the Court for review of the published opinion of the First District Court of Appeal, Division One, issued May 22, 2014 (Dondero, J., with Marguilles, Acting P.J., and Becton, J., conc.). Appellant’s Petition for Rehearing or Modification of the Opinion was denied June 16, 2014. A true copy of the opinion is attached as Exhibit 1. Review should be granted under Rule 8.500 to secure uniformity of decision andsettle important issues of law concerning the proper construction and application of the taxpayer standing statute, Code of Civil Procedure section 526a (section 526a)', the “primary purpose” of which “is to enable a large body ofthe citizenry to challenge governmentalaction which would otherwise go unchallenged in the courts because of the standing requirement.” (Van Atta v. Scott (1980) 27 Cal. 3d 424, 447 (Van Atta).) The important question presented for review is what type of taxes a plaintiff must pay to have standing undersection 526a and,ultimately, whetherplaintiff at bar and millions of other California residents like her 1 Section 526a provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town,city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for andis liable to pay, or, within one year before the commencementofthe action, has paid, a tax therein.....” 1 may be denied taxpayer standing because they do not own and cannotafford to buy real property or a business and pay taxes assessed thereon, but do pay other forms of taxes used to fund state and local government action, such as income, sales and gasoline taxes. INTRODUCTION Proceeding as a taxpayer pursuant to section 526a,plaintiff seeks to challenge the vehicle impoundmentpractices of defendants City of San Rafael (the City) and County of Marin (the County) under Vehicle Code section 14602.6, which authorizes the 30-day impoundmentofvehicles operated by a person without a valid driver’s license. Plaintiff is primarily concerned about the significant impact of Vehicle Code section 14602.6 on undocumented immigrants, who underthe existing state of the law cannot obtain California driver’s licenses and as a result frequently suffer the harsh penalty of vehicle impoundment. Plaintiff is a 36-year-old single mother of a 19-year-old daughter. Plaintiff and her daughterare citizens and long-time residents of the City and County, where they rent a very modest 2-bedroom apartment. Plaintiff works very hard to support herself and her daughter. She also doesher fair share to support state and local government. She pays income, sales and gasoline taxes, as well as other forms of taxes routinely imposedbycities, counties and the State. She does not, however, pay real property or business taxes. Like millions of other hardworking California taxpayers, plaintiff does not own and cannotafford to buy real property or start a pusiness in this state— particularly in the Bay Area, one of the most expensivereal estate markets in the United States.” She is not old enough to have 2 The Complaint expressly so alleges in its opening paragraphs dedicated to 2 purchased a home decades ago whenprices were lower. No onein her family has died andleft her real property as an inheritance. And despite her occasional $5 play, her lucky numbers have not beencalled in the state lottery. Thoughplaintiff is poorer than many other Californians andas result does not ownreal property or a business, she has neverfelt herself a second-class citizen, less deserving or important than her wealthier neighbors who own expensive homesand run their own businesses. Until now. The Court of Appealhastold plaintiff that because she is not wealthy enough,or otherwise fortunate enough, to own real property or a business and pay takes assessed thereon, she lacks taxpayer standing under section 526a to challenge the legality of state and local governmentaction. This Court has said the “primary purpose”of section 526a “is to enable a large body ofthe citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement” and thus the statute provides “‘a general citizen remedy for controlling illegal governmental activity.” (Van Atta, supra, 27 Cal. 3d 424, 447, italics added.) The Court of Appeal’s holding says otherwise. It says taxpayer standingis available only to the much smaller subset of the citizenry which is wealthy enough, or otherwise fortunate enough, to own real property or a retail business and pay taxes assessed thereon; to the exclusion of hard-working, taxpaying citizens such as plaintiff, who pay other forms oftaxes which are also used to fund government action but the issue of taxpayer standing. (CT 1-2.) Inexplicably, these allegations were omitted from the Court of Appeal’s Opinion, and the Court of Appeal summarily denied plaintiff's petition for rehearing and modification of the Opinion asking that the allegations be included. 3 which the Court of Appeal considers to be unworthyoftaxpayer standing under section 526a, such as income,sales and gasoline taxes. Though section 526 wasoriginally enacted in 1909 andthis Court has considered dozens of taxpayer cases brought underthe statute, the Court has never expressly said what type of taxes must be paid to qualify for standing under section 526a. But on several occasions the Court has found taxpayer standing onthepart ofplaintiffs who plainly had not paid real property or business taxes, and necessarily paid other forms of taxes,like income, sales and gasoline taxes, such as Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1081-1086 (Tobe), involving two homelessplaintiffs who were granted taxpayer standingto challenge the constitutionality of a no- camping ordinance, and Arrieta v. Mahon (1982) 31 Cal.3d 381 (Arrieta), brought by several former renters who had been evicted from their home and were found to have taxpayer standing to challenge the legality of the evictions. Nonetheless, the Court of Appeal in this case elected to follow the lead of twoprevious appellate court cases, Torres v. City ofYorba Linda (4" Dist., Div. 3, 1993) 13 Cal-App.4th 1035 (Torres) and Cornelius v. Los Angeles County etc. Authority (2™ Dist., Div. 4, 1996) 49 Cal.App.4th 1761 (Cornelius), which did not cite Tobe or Arrieta, and whichheld that taxpayer standing undersection 526ais limitedto plaintiffs whohavepaid real property taxes; payment of income, sales and gasoline taxes does not suffice. While plaintiffs complaint specifically concernsthelegality of the City and County’s vehicle impoundmentpractices, the Court of Appeal’s holding applies broadly to all forms of governmentaction because “t]he issue of whethera party has standing focuseson theplaintiff, not the issues he or she seeks to have determined.” (Opn.at fn. 7, italics added.) The Court ofAppeal’s published opinion thus prohibits plaintiff and others like her from using the taxpayer standing statute to challenge any form of government action, no matter how unlawful and harmful it may be and no matter how unlikely it is that wealthier and more fortunate taxpayers who own homesandbusinesses will bring suit under section 526a to challenge the government action. Such a rule enjoys no place in taxpayer standing and should be reviewed by the Court and promptly abolished. ISSUES PRESENTED FOR REVIEW 1. Whattype of taxes must a plaintiff pay, or be liable to pay, to have taxpayer standing undersection 526a? 2. Did the trial court err in dismissing plaintiffs complaint for lack of taxpayer standing? SUMMARY OF GROUNDSFOR REVIEW In the trial court, the parties entered a stipulated appealable order and judgmentof dismissal based on plaintiff's lack of taxpayer standing under existing appellate case law which foundthat section 526a requires proof of paymentofreal property taxes. (See Torres, supra, 13 Cal.App.4th 1035; Cornelius, supra, 49 Cal.App.4th 1761.) Affirming the judgment, the Court of Appeal elected to apply that restrictive rule, despite that it has never been endorsed by this Court in the 105 yearssince the taxpayer standing was enacted in 1909. The Court of Appeal summarily dismissed the decisions of this Court finding taxpayer standing onthepart ofplaintiffs who plainly had not paid real property or business taxes, such as Tobe, supra, 9 Cal.4th 1069, 1081- 1086, involving two homelessplaintiffs, and Arrieta v. Mahon, supra, 31 Cal.3d 381, brought by several renters who had been evicted from their apartments, and the dozensofother decisionsofthis Court which granted taxpayer standing and reachedthe substantive merits of the plaintiffs claims without considering the specific type of taxes the plaintiff hadpaid, such as O’Connell v. City ofStockton (2007) 41 Cal.4th 1061 (O’Connell)— which,like this case, involved a challenge to local vehicle seizure practices, and wasprosecuted successfully on its merits by plaintiff's counsel at bar. (And see Samples v. Brown (1*Dist., Div. 2, 2007) 146 Cal.App.4th 787 [constitutional challenge to Vehicle Code section 14602.6 brought by plaintiffs counsel at bar on behalf of a taxpayer whodid notallege or prove paymentof real property or business taxes].) The Court of Appealsaid those decisions are of no consequence because this Court did not expressly consider and decide the question of what type of taxes qualify for taxpayer standing under section 526a. But the Court’s many decisions granting taxpayer standing suggest the Court has impliedly answered the question in favor of affording taxpayer standing to those who havepaid any tax imposedby state or local government, not simply those who havepaid real property and business taxes. The Court of Appeal rejected plaintiffs claim that limiting taxpayer standing to paymentof real property and business taxes constitutes wealth- based discrimination in violation of due process and equal protection guarantees. (See Serrano v. Priest (1971) 5 Cal.3d 584 (Serrano) [wealth- basedrestriction of a fundamental constitutional right is subject to strict scrutiny and requires proof of a compelling state interest which justifies the disparate treatment of individuals based on wealth].) The Court of Appeal said plaintiff's equal protection “premise is flawed” because a real property and business tax requirement doesnot “to afford standing only to a select sub-group of the most wealthy Californians whoare fortunate enoughto ownreal property in this state and pay taxes thereon. While it is true that persons with limited financial resources will find it difficult to purchase homesin today's market, it does not follow that home ownership correlates with an individual's wealth. Many wealthy people do not own homes, preferring instead to rent. Additionally,it is not a given that all lower incomepeople are renters, as they may have purchased a home manyyears ago whentheir incomes were higher or may haveinherited their homes from family members.” (Fn. omitted.) This reasoning is highly-offensive and unbefitting empatheticjurists. The appellate justices failed to appreciate the obvious fact that wealthy people may choose to ownor rent, whereas poor people areforced to rent; and few ofthe poor are fortunate enough to have purchased homesdecades ago whenprices were lowerorto have inherited property from family members. Limiting taxpayer standing to those who own real property or a retail business thus has an inherently discriminatory effect on the poor. All whoare wealthy may gain taxpayer standing by electing to buy a homeor start a retail business. Few whoare poor havethat option— plaintiff, for one, certainly does not. The Court of Appeal’s failure to recognize this plain reality invokes Marie Antoinette— “Qu'ils mangentde la brioche." “If they are hungry, let them eat cake.” Or, as applied here,if they are hungry for taxpayer standing, let them buy a homeandstart a business.“There is no equality in a law prohibiting both rich and poor from sleeping under the bridges of Paris.” (Gebert v. Patterson (1* Dist., Div. 4, 1986) 186 Cal.App.3d 868, 876, internal citation omitted.) And there is no equality betweenrich and poorin a law affording taxpayer standing only to those taxpayers who ownreal property or a business. The Court of Appeal’s misguided treatment of the wealth-based discrimination claim is magnified byits citation ofJensen v. Franchise Tax Bd. (2009) 178 Cal.App.4th 426, 434, for the proposition that no such discrimination is found here because “[w]ealth generally confers benefits, and does not require the special protections afforded to suspect classes.” Jensen was referring to those who have wealth, not those who lack wealth. Limiting section 526a to those taxpayers who ownreal property and businesses and pay taxes thereon, does not confer a benefit on plaintiff and other taxpayerslike her who are not wealthy enough to ownreal property and a business. Instead, it impermissibly denies them the same broad standing rights as are afforded wealthier taxpayers. The Court ofAppeal brushed passed Serrano, supra, 5 Cal.3d 584, in which this Court held that wealth-based discrimination is subject to strict scrutiny if it impacts a fundamental right— in that case, the right to a quality public education. The Court of Appeal said: “Serrano is inapposite because it does not purport to identify persons who cannotafford to own real property as a protected class. Thus, the rational basis test applies.” Serrano cannot be read so narrowly. It is premised on the commonsensenotion that due process and equal protection guarantees will not tolerate the state’s denial of a fundamentalright based on lack of wealth— be it the poor school district in which onelives, as was the case in Serrano, or the apartment one is forced to rent because they cannot afford to buy a home,asis true here. The fundamental right at issue here, which the Court of Appeal wholly ignored, is the “[t]he right of access to the courts[;] an aspect of the First Amendmentrightto petition the governmentfor redress of grievances.” (Church ofScientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647; and see Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 118 Cal.Rptr.2d 807, 812-813.) "The [United States Supreme Court] traditionally has held that the Due Process Clausesprotect civil litigants who seek recourse in the courts, ... as plaintiffs attempting to redress grievances." (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 429.) Denying plaintiff and others like her the right to petition the court underthe broad standing available under section 526a, simply because they are not wealthy enough to ownreal property or a business, denies them access to the court just the same as doesa filing fee which they cannot afford to pay. Due process and equal protection principles demand the waiverof filing fees for those who cannot afford to pay them. (Boddiev. Connecticut (1971) 401 U.S. 371; Earl v. Sup. Ct. (1978) 6 Cal.3d 109.) The sameprinciples prohibit denial of taxpayer standing based on one’s inability to afford to buy a homeor business. Fundamental constitutional tenants mandate that justice be accorded the rich and pooralike. (See Griffin v. Illinois (1956) 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055].) The Court should not tolerate a rule which bases taxpayer standing on the size of the taxpayer’s pocket. In closing, the Court of Appeal reasonedthat plaintiff's voice need not be heard by the court through a complaint brought under the taxpayer standing statute because there are probably plenty of like-minded home ownersavailable to bring suit under section 526a to challenge the City and County’s vehicle impoundpractices, and there are also aggrieved vehicle owners whohave direct standing to sue. The Court of Appeal thereby overlooked this Court’s decision in Van Atta, supra, 27 Cal. 3d 424, 447- 450, expressly reaffirming the rule that taxpayer standing may not be denied on groundsthat others with standing can bring suit on their own. Andit is also dead wrong to presumethat wealthier taxpayers, who generally own homesandbusinesses, will bring the same passion to the vehicle impoundmentdebate as do poorer taxpayers such asplaintiff, who appreciate the hardship causedbythe loss of a vehicle for 30-days because they own butone car, not several as do most wealthierfolk. The Court of Appeal also failed to appreciate that its taxpayer standing rule is not limited to vehicle seizure cases but applies broadly to all types of challengesto illegal government action. There are many causes which the poor are known to champion with moresincerity and vigor than the wealthy, such as rent control, challenges to unlawful evictions, and the plight of the homeless. (See, e.g., Tobe, supra, 9 Cal.4th 1069, and Arrieta v. Mahon, supra, 3\ Cal.3d 381 [each finding taxpayer standing].) If the poor are divested of taxpayer standing, those causes will not be pursued with the samepassion,if at all, and the unique perspectives of the poor litigants who champion them will not be heard. Our justice system will suffer immensely if we deny taxpayer standing to hard-working, taxpaying, citizen residents of local municipalities, like plaintiff, who are willing to stand up in court against the government and demand its compliance with the law, but are not wealthy enough, or otherwise fortunate enough, to own real property or their own business. Review should be granted to determine what type oftaxesa plaintiff must pay to qualify for taxpayer standing undersection 526a, and, ultimately, whether plaintiff and others like her shall be denied taxpayer standing because they cannotafford to buy real property andstart a business and pay taxes assessed thereon. PROCEDURAL HISTORY AND STATEMENT OF FACTS Plaintiff filed a complaint for declaratory and injunctive relief on January 9, 2013. (CT 1-12.) The complaint challenges the City and County’s enforcement of Vehicle Code section 14602.6, authorizing 30-day 10 impoundmentof a motor vehicle operated by a person with a suspended or revoked driver’s license. Plaintiff claims the enforcementpractices are contrary to the statute’s terms and violate procedural due process guarantees. Plaintiff concedes she has not suffered the impoundmentof a vehicle. She claims standing as a taxpayer under section 526a. Shealleges that she has paid income, sales and gasoline taxes, and water, sewagefees, and other standard fees and taxes imposed by the City, County andState, but has not paid real property taxes because she does not own and cannot afford to buy real property in California. (CT 1-2.) Recognizing that plaintiff's claim of taxpayer standing was barred in the trial court by the Court of Appeal decisions in Torres, supra, 13 Cal.App.4th 1035, and Cornelius, supra, 49 Cal.App.4th 1761, requiring proof of paymentofreal property taxes, the parties stipulated to entry ofa judgmentof dismissal which reserved plaintiff's right of appeal. The judgmentwasentered on April 22, 2013. (CT 13-15.) Plaintiff timely filed a Notice ofAppeal on June 11, 2013. (CT 21.) On appeal, plaintiff argued that Torres and Cornelius were wrongly decidedandsection 526a should be interpreted to provide taxpayer standing to a plaintiff who has paid any type of tax imposedbystate or local government, including income,sales and gasoline taxes, as well as real property taxes. Plaintiff claimed that limiting section 526a to payment of real property taxes would constitute wealth-based discrimination in violation of due process and equal protection guarantees. In response, the City and County countered each of these arguments. They also added Santa Barbara Co. Coalition Against Automobile Subsidies v. Santa Barbara Co. Assn. ofGovernments (2™Dist., Div. 6, 2008) 167 Cal.App.4th 1229 (Santa Barbara Co.) to the mix for the first 11 time. Citing Cornelius and Torres with approval, the court in Santa Barbara Co. foundtheplaintiff in that case had taxpayer standing under section 526a because he had paid sales taxes assessed on his business— the retail sale of T-shirts. Santa Barbara Co. reasoned that a business owners whohaspaidsalestax satisfies the requirements of section 526a because the sale tax is assessed directly on the business owner; whereassales taxes paid by consumersdonotsatisfy section 526a becausesales taxes are technically assessed ontheretailer, not the consumer, though aspractical matter retailers simply pass the tax on to consumers whopayit at the time ofpurchase. (167 Cal.App.4th at p. 1236.) The City and County thus argued that taxpayerstandingis satisfied by paymentof either real property or business taxes; and becauseplaintiff at bar has not paid either of those taxes, she lacks taxpayer standing. In reply, plaintiff argued that section 526a should not be limited to paymentofreal property and business taxes, but should also include paymentofany othertype of tax assessed by state and local government, including income,sales and gasoline taxes. Plaintiff noted the express allegation in her complaint that she down not own and cannotafford to buy real property. She added that she also does not own and cannotafford to start her own business. She claimedthat limiting section 526a to payment of real property and business taxes would constitute wealth-based discrimination and violate due process and equal protection guarantees The Court of Appeal issued a published opinion on May 22, 2014, affirming the judgmentof dismissal based on plaintiff's lack of taxpayer standing. (Ex. 1 hereto.) The Court of Appeal elected to follow Torres,, Cornelius, and Santa Barbara Co. and accordingly foundthat section 526 requires proof of payment ofreal property or business taxes; payment of 12 income,sales and gasoline taxes do notsuffice. The Court of Appeal acknowledged that this Court has found taxpayer standing on the part ofplaintiffs who plainly had not paid real property or business taxes, such as Tobe, supra, 9 Cal.4th 1069, 1081-1086, involving two homelessplaintiffs, and Arrieta v. Mahon, supra, 31 Cal.3d 381, brought by several former renters who had been evicted from their apartments, and that the Court has issued dozens of other decisions which granted taxpayerstandingto the plaintiff without consideration of the specific type of taxes the plaintiff had paid. The Court of Appeal said those decisions are not precedent because this Court did not expressly consider and decide the question of whattype of taxes qualify for taxpayer standing undersection 526a. The Court of Appealrejected plaintiff's claim that limiting taxpayer standing to paymentofreal property and business taxes would constitute wealth-based discrimination in violation of due process and equal protection guarantees. The court said, in sum,that plaintiffs “premise is flawed”becausethere are somerich people who do not own homesor business and some poor people who do, so a real property and business tax requirement doesnotlimit standing only to a select sub-group of the most wealthy Californians. The court also said that lack ofhome ownership has never been identified as a suspect class, so the taxpayer limitation is subject to the rational basis test. The court founda rationalbasis exists for limiting section 526ato real property and business taxpayers because payment of such taxes vest the taxpayer with"a sufficiently personal interest in the illegal expenditure of funds by county officials to become dedicated 13 adversaries." (Blair, supra, 5 Cal.3d at p. 270.) In closing, the Court of Appeal reasoned that recognition of plaintiffs taxpayer status based on paymentof income,sales and gasoline taxes was unnecessary because the City and County’s vehicle impoundment practices can be challenged by aggrieved vehicle owners with direct standing to sue, and by other taxpayers who havepaid real property and business taxes and thus have standing undersection 526a based ontherule applied by the Court of Appeal.’ Plaintiff timely filed a petition for rehearing or modification ofthe Court of Appeal Opinion. Plaintiff asked the appellate court to modify the opinion to expressly state that plaintiff's complaint alleges she does not 3 The Court said the exact same thing in Van Atta, supra, 27 Cal. 3d 424, 447-450, without identifying the type of taxes the plaintiffs had paid. So, too, in several dozen other decisions of this Court and the Court of Appeal. So it is difficult to see how the quote from Blair can be said to limited to paymentofreal property and business taxes, as the Court of Appeal found. 4 The Court of Appeal failed to cross-check this presumption against the existing published cases concerning the vehicle impoundmentstatute, Vehicle Code section 14602.6. Had it done so it would have appreciated that plaintiff's counsel at bar prosecuted all but one ofthose cases, and he did so equally on behalf of vehicle owners with direct standing and taxpayers who were afforded standing under section 526a despite not having claimed to have paid real property or business taxes. (See Smith v. Santa Rosa Police Department (1* Dist., Div. 3, 2002) 97 Cal.App.4th 546 [action by a vehicle owner]; Samples v. Brown (1*Dist., Div. 2, 2007) 146 Cal.App.4th 787 [action by a taxpayer]; Alviso v. Sonoma County Sheriff's Dept. (1* Dist., Div. 2, 2010) 186 Cal.App.4th 198 [action by a vehicle ownerand taxpayer].) The remaining case was a wrongful death action brought by the heirs of a victim ofa vehicle collision. (CHP vy. Sup. Ct. (3rd Dist. 2008) 162 Cal.App.4th 1144.) This precedential history hardly suggests there is no need for taxpayer challenges by people like plaintiff at bar. 14 ownand cannotafford to buy real property in California. In light of the omission ofthis critical allegation, plaintiff also asked the Court of Appeal to reconsider its assessment of the wealth-based discrimination claim. And, plaintiff asked the Court of Appeal to consider a recent appellate decision published after the close of briefing, Sipple v. City ofHayward (2™Dist., Div. 2, April, 8, 2014) — Cal_App.4th — , B242893 (Sipple). Sipple held that a telephone company which standing to pursue recovery of a tax payment madeto the City of Hayward, though the tax had technically been assessed on the company’s users, not the company, which had merely collected the tax from the users by listing the tax on their telephonebills. Plaintiff argued that section 526a should be similarly construed to grant taxpayer standing based on her paymentof income,sales and gasoline taxes. The Court of Appeal summarily denied the petition for rehearing and modification of the opinion by order issued June 16, 2014. The decision of the Court of Appeal wasfinal on June 21, 2014. This petition for review timely follows in accordance with Rule 8.500. ARGUMENT I. REVIEW SHOULD BE GRANTED TO SETTLE THE IMPORTANT QUESTION OF WHAT TYPE OF TAXES A PLAINTIFF MUST PAY, OR BE LIABLE TO PAY, TO HAVE TAXPAYER STANDING UNDER SECTION 526a In the 105 years since section 526a wasoriginally enacted in 1909, this Court has considered several dozen taxpayer cases, including many in which taxpayer standing was affordedto the plaintiff. Yet the Court has never expressly said whattype oftaxes the plaintiff must pay to qualify for standing undersection 526a. 15 In Blair, supra, 5 Cal.3d 258, the plaintiffs offered proof of payment of real property taxes (id., p. 265, fn. 2), which the Court found adequate to establish taxpayer standing under section 526a.(See id, pp. 267-270 and 285-286, fn. 21.) So, too, in Serrano v. Priest, supra, 5 Cal.3d 584, 618, presenting a taxpayer challenge to the State’s method of funding public schools. In each of those cases, however, the Court did not state that paymentofreal property tax is the only wayto satisfy section 526a. That question wasnot before the Court, and any suggestion that the Court implicitly held that real property tax payment is required by section 526ais readily defeated by subsequent decisions of the Court in which taxpayer standing was foundfor plaintiffs who did not ownreal property and plainly paid noreal property taxes. (See, e.g., Arrieta v. Mahon supra, 31 Cal.3d 381, 384-387 [taxpayer plaintiffwas a former renter who had been wrongfully evicted from her apartment]; Tobe, supra, 9 Cal.4th 1069, 1081- 1083, 1085-1086 [2 homelessplaintiffs found to have taxpayer standing].) The Court also did not pass on the issue in Van Atta, where the plaintiffs were simply described as “taxpayers” (see Van Atta, supra, 27 Cal.3d at pp. 433 & 447-450), nor in White v. Davis, supra, 13 Cal.3d 757, wherethe plaintiff was said to be “a professor of history at the University of California at Los Angeles anda resident taxpayerofthe City of Los Angeles[.]” (/d., p. 762; and see id., pp. 762-765 [describing the plaintiff as a “taxpayer”and finding he had standing undersection 526a].) Similar languageis found in every other taxpayer standing case to reach the Court since section 526a was enacted in 1909,all of which appearto contain generic references to “taxpayers,” “resident taxpayers” and “citizen taxpayers,” without mention, much less substantive discussion of the specific type of taxesthe plaintiffs had paid to deserve taxpayer standing. 16 (See, e.g., Wirin v. Parker, supra, 48 Cal.2d at 891 [the section 526a plaintiff was “a resident citizen taxpayer of the City of Los Angeles”); Lundberg v. County ofAlameda (1956) 46 Cal.2d 644, 647 [the plaintiff found to have standing under section 526a wasdescribed only as “a citizen resident of defendant county and a taxpayertherein”; C.R. Drake v. City of Los Angeles (1952) 38 Cal.2d 872, 873 [“The plaintiffs as taxpayers of the city of Los Angeles commencedthis action under section 526a”]; Simpson v. City ofLos Angeles (1953) 40 Cal.2d 271, 276 [‘the plaintiffs are resident citizens and taxpayers ofthe city and [allege] that enforcement of the [challenged] ordinance will result in unlawful expenditures of municipal funds. As such taxpayers, they are entitled to sue to prevent the alleged illegal expenditures. (Code Civ. Proc., 526a....)”]; Regents of University of California v. Superior Court (Karst) (1970) 3 Cal.3d 529, 533, 542 (“Karst ... [and others] ... filed [this] taxpayers’ action,” which was properly venued in Los Angeles County where defendants were located, rather than in another county wherethe plaintiffs lived, because “[s]uch an action rests not upon the paymentoftaxes by the taxpayer, but uponthe alleged illegal expenditure of such monies by the defending public entity”; City of Ontario v. Superior Court (1970) 2 Cal.3d 335 [repeatedly describing the plaintiffs simply as “taxpayers”]; Love v. Keays (1971) 6 Cal.3d 339, 343 [“Plaintiffs, residents and taxpayers of Los Angeles County, broughtthis action under section 526a....”]; Harman v. City and County ofSan Francisco, supra, 7 Cal.3d 150 [describing the case as a “taxpayersuit” brought under section 526a by a San Francisco “taxpayer”]; Adams v. DMV (1974) 11 Cal.3d 146, 151 [“Petitioner Pineda joins in this action as a taxpayer challenging the constitutionality of the expenditure of public funds in enforcement of the garageman's lien law. (See Code Civ. Proc., 17 §526a[.])’”]; Stanson v. Mott (1976) 17 Cal.3d 206, 209, 223 [describing the action as a “taxpayer suit” under section 526a]; Folsom v. Butte County Assn. ofGovts. (1982) 32 Cal.3d 668, 671-672 andfn. 2 [Plaintiffs are resident taxpayers of Butte County” who “asserted standing under section 526a”]; McKinny v. Board ofTrustees (1982) 31 Cal.3d 79, 91 [“[T]he plaintiffs asserted standing as taxpayers under... section 526a.... [P]laintiffs have standing as taxpayers to challenge the legality of the [defendant] schooldistrict's actions”|; Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1137 [“the taxpayer plaintiff” did not have standing to sue under section 526a becausehe had not proven the challenged government conduct at issue resulted in the illegal waste or expenditure oftaxpayer funds]; Harbor v. Deukmejiian (1987) 43 Cal.3d 1078, 1083 at fn. 4 [“The individual petitioners filed [suit] both in their individual capacities as AFDCrecipients and as taxpayers under section 526a”’]; Williams v. Garcetti (1993) 5 Cal.4th 561, 566-567 and fn. 2 [noting that in the proceedings before the Supreme Court the governmental defendants did not challenge the Court of Appeal’s finding that the “taxpayer” plaintiffs had standing under section 526a]; Sands v. Morongo Unified SchoolDist. (1991) 53 Cal.3d 863, 869 [“Plaintiffs Jim Sands and Jean Bertolette are taxpayers residing within the [School] District. ... They proceeded under... section 526a, which authorizes taxpayers’ actions against local public entities to enjoin the unlawful expenditure ofpublic funds.”]; Dibdv. County ofSan Diego (1994) 8 Cal.4th 1200, 1205 [Plaintiff filed a taxpayer's suit (Code Civ. Proc., § 526a)....”]; Loder v. City ofGlendale (1997) 14 Cal.4th 846, 856 [“plaintiff Lorraine Loder, a taxpayer,instituted the present taxpayer's suit to enjoin further expenditure ofpublic funds relating to the drug testing program. (See Code Civ. Proc., § 526a.)”]; 18 HowardJarvis Taxpayers Assn. v. City ofLa Habra (2001) 25 Cal.4th 809 [while the issue of taxpayer standing wasnotbeforeit, the Supreme Court noted the plaintiffs had claimed taxpayer standing under section 526a based on a complaint describing the plaintiffs only as “citizens, voters and taxpayers of the City of La Habra”]; O’Connell v. City ofStockton, supra, 41 Cal.4th 1061 [Plaintiff Kendra O'Connellfiled this taxpayer action (Code Civ. Proc, § 526a) ....”]; Vasquez v. State (2008) 45 Cal.4th 243, 248- 249 [noting that in the underlying litigation on the merits of Vasquez’s claims, from whichthe attorney’s fee issue before the Supreme Court arose, “Vasquez [had] ... asserted standing as a taxpayer to prevent the waste of state property (Code Civ. Proc., § 526a)”].) A. Torres. It appears the first case to address the specific type of tax which one must pay to have taxpayer standing undersection 526ais the Fourth District decision in Torres, supra, 13 Cal.App.4th 1035, issued in 1993. In Torres, the plaintiffs filed a taxpayer action challenging the validity of a proposed redevelopmentproject by the City of Yorba Linda. Theplaintiffs did not reside or ownreal property in Yorba Linda. Rather, the complaint “allege[d] both plaintiffs currently live in Anaheim. Plaintiffs are interested in moving to Yorba Lindaif they could find decent, safe, sanitary and affordable housing. Eachplaintiff paid a sales tax to the City of Yorba Linda within oneyearbeforefiling the action.” (Torres, supra, 13 Cal.App.4th at p. 1039.) In rejecting the plaintiff's claim of taxpayer standing, the Fourth District Court of Appeal looked to the language of section 526a which provides standing to one “whois assessed for andis liable to pay, or, within one year before the commencementofthe action, has paid, a tax therein.” 19 (Italics added.) The appellate court read this as requiring proof of payment of tax assessed directly on the plaintiff seeking to invoke section 526a. The court found the non-resident plaintiffs lacked standing because they had paid only sales tax, whichis technically assessed againstthe retailer, not the consumer— thoughasa practical matter the retailer simply passes the sales tax on to the consumer, whopaysit at the time ofpurchase. (/d., pp. 1047- 1048.) B. Tobe. Just 2 years later after Torres was decided, and without mentioning that case, this Court issued its opinion in Tobe, supra, 9 Cal.4th 1069, and found that two homelessplaintiffs— who plainly had not paid real property or businesses taxes— had taxpayer standing under section 526ato challenge the constitutionality of a no-camping ordinance. (/d., pp. 1081-1083, 1085- 1086; and seeid., p. 1117 (Mosk, J., diss.) [agreeing with the majority that the plaintiffs had taxpayer standing undersection 526a].) Cc. Cornelius. Just 1 year after Tobe, and, inexplicably, without mentioning that 5 Curiously, earlier in its opinion, addressing the plaintiffs’standing under section 863, authorizing a validation action in certain circumstances, the Torres court said: “Torres owns property in the county and pays taxes onit” by making “monthly payments to her father who uses the moneyto pay the mortgage and property tax bills. ... We consider the fact that Torresis a record ownerofthe property, and consequently liable to pay the property tax levy, sufficient to support her claim to be a taxpayer. The method by whichshesatisfied her tax obligation is not controlling. Thus, defendants’ analogies to a tenant paying rent to a landlord and a customer making a purchasein retail store are inapposite.” (13 Cal.App.4th at 1041 and fn. 4.) Torres’status as a property tax payer is absent from the court’s subsequentdiscussion ofthe plaintiffs’ taxpayer standing, which considered only their paymentof sales tax. (Id., pp. 1047-1048.) 20 case, the Second District Court of Appeal issued its opinion in Cornelius, supra, 49 Cal.App.4th 1761, holding that property tax paymentis the only tax whichsatisfies section 526a. The Court of Appeal agreed with Torres that paymentof sales tax is not adequate for taxpayer standing. It also rejected payment of gasoline and incometaxes as groundsfor standing undersection 526a. It concluded by stating: “Any further extension ofthe concept oftaxpayer standing must come from our state Supreme Court.” (49 Cal.App.4th at p. 1779, fn. omitted.) D. Connerly. In Connerly, supra, 92 Cal.App. 4th 16, decided in 2003, the Third District Court of Appealcriticized Cornelius’ reasoning and distinguished its holding as factually inapposite. (Id., pp. 29-31.) But having so found, the Connerly court failed to describe the specific type of taxes which Connerly had paid, referring to him only as a “taxpayer,” and did not expressly address Cornelius’ finding that proof of property tax paymentis required by section 526a, and paymentof gasoline, sales and incometaxes doesnotsuffice.° E. Subsequentdecisions havefailed to address the question of the type of taxes which satisfy section 526a. Subsequent decisions of the Court ofAppeal and this Court have continued the century-old trend of referring to the plaintiffs simply as 6 Atthe time of the Connerly decision, Ward Connerly was a well-paid memberofthe UC Board of Regents and a highly sought-after public speaker, who likely owned both a homeanda business and paid taxes thereon. The Connerly decision, however, says nothingofthe sort and does not identify the nature of the taxes paid by Connerly to secure standing undersection 526a. 21 99 66“taxpayers,” “resident taxpayers,” and “citizen taxpayers,” without describing the specific taxes paid by the plaintiffs, including several vehicle impoundmentand forfeiture case brought by plaintiff's counsel at bar on behalf of taxpayers who did not allege or prove paymentof real property or business taxes. (See, e.g. O’Connell, supra, 41 Cal.4th 1061 [the prevailing plaintiff “filed this taxpayer action (Code Civ. Proc, § 526a) against the City of Stockton andits city attorney” challenging the validity of the city’s vehicle forfeiture ordinance]’; Samples, supra, 146 Cal.App.4th 787 [The plaintiff, who prevailed in the trial court but lost on the merits on appeal to Division 2 of this Court, “filed th[e] action pursuant to section 526a ... as a tax-paying ‘citizen interested in the government's compliance with constitutional requirements.’ She did not allege, nor has she ever argued, that the [vehicle impoundment] statutes she challenges were applied to her or that she or any other individual has suffered any damages.”’].) Since Cornelius’ publication in 1996, just one year after this Court’s decision in Tobe affording taxpayer standing to two homelessplaintiffs without mentioning the type of taxes they had paid, it appears there are only three (3) cases decided in the context of section 526a which contain mention of the specific type of taxes paid by the plaintiffs. In each instance, the case passingly mentions paymentofreal property taxes without addressing the legal consequence of such paymentto the issue of taxpayer 7 In the underlying decision of the Third District Court of Appeal in favor of taxpayer-plaintiff, O’Connell v. City ofStockton, formerly at (2005) 27 Cal.Rptr.3d 696 (depublished on grant of review), the Court of Appeal concluded that O’Connell had taxpayer standing undersection 526a to enjoin the ongoing enforcementofthe challenged ordinance. (/d., p. 703.) On review, this Court did not address the issue of standing. (O Connell, supra, 41 Cal.4th 1061.) 22 standing. (See Chiatello, supra, 189 Cal.App.4th 472, 477 [passingly noting the plaintiff had identified himself as "a resident of the City [of San Francisco] who ownsreal property located within the City and pays property taxes"]; County ofSanta Clara v. Superior Court (Naymark) (6 Dist. 2009) 171 Cal.App.4th 119, 124-125 and fins. 1-5 [noting the issues were notbefore it, the appellate court stated the trial court had sustained demurrersfiled by various city and county defendant on groundsthatthe plaintiffs lacked taxpayer standing in those specific jurisdictions, and the plaintiffs had responded by filing an amended complaintstating they had paid property taxes in those jurisdictions]; Kaatz v. City ofSeaside (6" Dist. 2006) 143 Cal.App.4th 13, 49 Cal.Rptr.3d 95, 98 [passingly mentioning the taxpayerplaintiffs “resided in the City [of Seaside] and hadpaid real property taxes to the City’’].) Curiousas it seems, given the importance of section 526a and the frequency with which taxpayer standing arises in published decisions ofthis Court, the specific type of tax payment required for standing undersection 526a has never been considered by the Court in the 105 years of the statute’s existence. And so weare here. F. Review should be issued to settle this importantissue of law. The Court ofAppeal opinion in this case leaves muchto be desired and does not convincingly resolve the question of the specific type of taxes which must be paid to qualify for taxpayer standing undersection 526a. The Court of Appeal gave short-shrift to the intent of the statute— “to enable a large bodyofthe citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement” (Van Atta, supra, 27 Cal. 3d 424, 447)— and the constitutional 23 implications of limiting standing under section 526a to those who have paid real property and business taxes. The proper interpretation and application of section 526a, and the proper analysis and outcomeofthe wealth-based discrimination claim, deserve consideration by the Court on grant of review. Under Rule 8.500, the Court should grant review to settle the important questions of what type oftaxes a plaintiff must pay to have taxpayer standing under section 526a, and whetherlimiting the reach of the statute to paymentofreal property and business taxes would renderthe statute unconstitutional as violative of due process and equal protection guarantees based on wealth-based discrimination. CONCLUSION Based on the foregoing, the Court should grant review in accordance with Rule 8.500 to considerplaintiffs right to bring suitj)taxpayer standing statute, section 526a. Date: June 23, 2014 By: Mark T. Clausen, Attorney for Plaintiff/Appellant/Petitioner Cherrity Wheatherford CERTIFICATE OF WORD COUNT I, Mark T. Clausen, do hereby certify that the word count forthis brief is 6,231 words as determined by WordPerfect software. All margins are set at 1.5 inches and line spacing is set at 1.5, with/ eption of blocked text. Mark T. Clausen 24 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, 1st Appellate Dist., Ist... Page 1 of 7 CHERRITY WHEATHERFORD,Plaintiff and Appellant, Vv. CITY OF SAN RAFAELetal., Defendants and Respondents. No. A138949. Court of Appeals of California, First District, Division One. Filed May 22, 2014. Mark T. Clausen, Counselfor Plaintiff and Appellant. Bertrand, Fox & Elliot: Thomas F. Bertrand, and Richard W. Osman, Marin County Counsel, Renee G. Brewer, and Valorie R. Boughey, Counsel for Defendants and Respondents. CERTIFIED FOR PUBLICATION DONDERO,J. Plaintiff Cherrity Wheatherford filed a complaint challenging the enforcement practices of defendants the City of San Rafael and the County of Marin with respect to the impoundmentof vehicles. She claimed she had standing to bring the action as a resident taxpayer. However, she conceded that she had not paid any property taxes. Thetrial court entered a stipulated judgment of dismissal. We agree with existing appellate decisions that hold payment of an assessed property tax is required in order for a party to have standing to pursue a taxpayeraction. Accordingly, we affirm the judgment. FACTUAL BACKGROUNDAND PROCEDURALHISTORY On January 9, 2013, plaintiff filed a complaint for declaratory and injunctive relief. In the complaint, she alleged she had taxpayer standing under Codeof Civil Procedure section 526a (section 526a) because she had paid sales tax, gasoline tax, and water and sewagefeesin the City of San Rafael and the County of Marin. She admitted she had not paid property taxes, but asserted she nevertheless had standing under Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 (Tobe). The complaint challenges the defendants' policies and practices related to the impoundmentof vehicles under Vehicle Code section 14602.6.4 On April 22, 2013, the trial court filed a stipulated order and judgmentof dismissal. In the order, plaintiff admitted appellate courts have twice held that payment of property taxes is required for taxpayer standing undersection 526a. (See Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035 (Torres). Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761 (Cornelius).) She also conceded her argumentthat the property tax requirement is an unconstitutional wealth- http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, 1st Appellate Dist. 1st... Page 2 of 7 basedclassification is precluded under Torres, supra, 13 Cal.App.4th 1035, 1048, fn. 7. She now challenges Cornelius and Torresin this appeal. DISCUSSION 1. Standard of Review Interpretation of a statute presents questions of law for the court to decide, andis reviewed de novo. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794; Fredenburg v. City of Fremont (2004) 119 Cal.App.4th 408, 419: Evid. Code, § 310, subd. (a).) Plaintiff raises issues regarding the interpretation and application of section 526a and whetherit may be read in a mannerto afford her taxpayer standing. The de novo standard of review, therefore, applies in this case. | ll. Taxpayer Standing Under Section 526a Section 526a provides, in relevant part: "An action to obtain a judgment, restraining and preventing anyillegal expenditure of, wasteof, or injury to, the estate, funds, or other property of a county, town, city or city and countyof the state, may be maintained against anyofficer thereof, or any agent,or other person, actingin its behalf, either by a citizen resident therein . . . who is assessedfor and is liable to pay, or, within one year before the commencementofthe action, has paid, a tax therein." (Italics added.) The fundamentalpurposeofthis statute is to "enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts becauseof the standing requirement."(Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268 (Blair).) In Torres, supra, the Fourth District Court of Appeal held that proof of paymentof real property tax is required by section 526a; paymentof sales tax will not suffice. (13 Cal.App.4th 1035, 1046-1047.) Theplaintiffs in Torres had filed a taxpayer action challenging the validity of a proposed redevelopmentproject by the City of Yorba Linda. Theplaintiffs did not reside or own real propertyin that city. Rather, the complaint alleged both plaintiffs currently lived in Anaheim, but were interested in moving to Yorba Lindaif they could find decent, safe, sanitary and affordable housing. Each plaintiff paid a sales tax to the City of Yorba Linda within one year beforefiling the action. (/d. at p. 1039.) In rejecting the plaintiffs’ claim of taxpayer standing, the appellate court looked to the language of section 526a granting standing to one "whois assessedfor andis liable to pay, or within one year before the commencementof the action, has paid, a tax therein." The court read this language as requiring proof of payment of an assessed tax. The court found the nonresidentplaintiffs lacked standing because they had paid only sales tax, which is technically assessed againsttheretailer, not the consumer, though asa practical matter the retailer simply passes the sales tax on to the consumer, whopaysit at the time of purchase. (/d. at pp. 1047-1048. )2 Twoyearslater, our Supreme Court decided Tobe, supra, holding, in part, that two taxpayer plaintiffs who were homeless—and thus necessarily did not pay real property taxes—had taxpayer standing under section 526a. (9 Cal.4th 1069, 1086.) In Tobe,the plaintiffs, some of whom were homeless, http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, 1st Appellate Dist., 1st... Page 3 of 7 brought an action to bar the enforcement of a Santa Ana ordinance that banned camping and storage of personaleffects in public areas throughoutthecity. (/d. at pp. 1081-1082.) In the course of reachingits decision, the Court held that regardless of whetherthe plaintiffs had a beneficialinterest in the writ action, they did have standing to bring the petition as section 526a taxpayers.(/d. at p. 1086.) There is no indication, however, that the Court considered the issue of what taxesplaintiffs had paid to enjoy this standing.! The main focus of the case was geared toward separate constitutional concerns.Asplaintiff acknowledges, cases are not precedentfor issues not considered and decided. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 565.)4 Oneyearafter Tobe was decided, the Second District Court of Appeal cited Torres as stating the correct rule and held that proof of paymentof real property tax is required by section 526a; payment of sales, gasoline, and incometaxeswill not suffice. (Cornelius, supra, 49 Cal.App.4th 1761 at pp. 1777-1776.) In Cornelius, a nonresidentplaintiff brought suit against the Los Angeles County Metropolitan Transportation Authority (MTA) challenging an affirmative action program it had implemented as a required condition of receiving federal funds. The plaintiff did not reside in the county of Los Angeles or ownreal property therein. Rather, he worked for a companyin Hollywood that had allegedly lost out on a bid in that county dueto an affirmative action program. (Id. at pp. 1765, 1774.) He claimed he hadthe right to sue based on his paymentof sales and gasoline taxes within the county, as well as his paymentof incometaxesto the state. (/d. at p. 1774.) In rejecting the claim of taxpayer standing, the appellate court first found that real property taxes are assessed on the property ownerdirectly and therefore satisfy the language of section 526a. Astheplaintiff had not paid real property taxes, he could not claim taxpayer standing on that basis. (/d. at pp. 1775-1776.) Cornelius does not mention the Tobe opinion. Below, the parties agreed that underthe rule of stare decisis, the trial court here was constrained to follow Comelius becauseit squarely addresses the issue of property tax paymentandit post-dates the Supreme Court's decision in Tobe. On appeal, plaintiff asks us to reject Cornelius and Torres in favor of Tobe and other casesthat have, according to her, construed section 526a broadly "to achieve its remedial purpose." She asks usto hold that paymentof any form of tax suffices for standing under section 526a. lll. Plaintiff Lacks Standing A. Plain LanguageofSection 526a Plaintiff claims the plain language of section 526a reveals that paymentof anytax is sufficient to confer taxpayerstanding, including payment of fees for services such as water and sewage.£! As noted above,that section allowsa "citizen resident" to bring a lawsuit if the individual "is assessedfor andisliable to pay, or, within one year before the commencementof the action, has paid, a tax therein. . . ." Plaintiff first claims the statute is written in the disjunctive, asserting the word "or" separates persons who have been assessed for and areliable to pay a tax from those who have merely "paid a tax" in the relevantjurisdiction. As to the latter class of taxpayers, she asserts an http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, 1st Appellate Dist., Ist... Page 4 of 7 assessmentis not required. While she claims the "overall meaning"of the statute “is made difficult by the mannerin which the words are parsed and separated by commas,"in reality it is her own interpretation that is strained. Plainly, the word “or"is intended to provide an alternative to the clause "is liable to pay." Thus, the statute gives standing to two classes of persons who have been assessed for taxes: (1) those whoareliable to pay an assessed tax but who have notyet paid, and (2) those whopaid an assessed tax within one year beforethefiling of the lawsuit. Unlike plaintiff, we see nothing in this interpretation that would lead to any "absurd results." B. Legislative Intent Plaintiff asserts legislative intent supports her broad interpretation of section 526a. The statute was enacted in 1909, andplaintiff does not direct our attention to any actual legislative history. Instead, she points to appellate decisions that have described the statute as providing "a generalcitizen remedy for controlling illegal governmental activity" (White v. Davis (1975) 13 Cal.3d 757, 763), designed to "enable a large bodyof the citizenry to challenge governmentalaction" (Blair, supra, 5 Cal.3d 258, 267-268) and providing a broad basis of relief. (See Van Atta v. Scott (1980) 27 Cal.3d 424, 447-448.) Courts need notrely onlegislative intent when a statute is clear onits face. (Greb v. Diamond Internat. Corp. (2013) 56 Cal.4th 243, 256.) In any event, plaintiffs contentions are not persuasive. Her argumentis based on herview that the "legislative intent of section 526a would be underminedif the statute is interpreted to afford standing only to a select sub-group of the most wealthy Californians whoare fortunate enough to ownreal property in this state and pay taxes thereon."= Whileit is true that personswith limited financial resourceswill find it difficult to purchase homesin today's market,it does notfollow that home ownership correlates with an individual's wealth. Many wealthy people do not own homes,preferring instead to rent. Additionally, it is not a given that all lower income people are renters, as they may have purchased a home many years ago whentheir incomes were higheror may haveinherited their homes from family members. Thus,plaintiff's premise is flawed. C. Constitutionality Plaintiff uses a similar argument to suggest section 526a violates principles of equal protection. She asserts an interpretation of the statute that requiresa litigant to have paid assessed property taxesin order to have standing to sue creates a "wealth-basedclassification," thereby raising constitutional concerns subjectto strict scrutiny. Again, the correlation between wealth and home ownershipis not as Clearas plaintiff suggests. Further, as she acknowledges, the equal protection argument was rejected by the court of appeal in Torres. In Torres, the appellate court stated in a footnote: "Plaintiffs also claim that denying standing to them under[section] 526a violates their constitutional right to equal protection of the law. The argumentis without merit. The case law clearly establishesplaintiffs are not similarly situated with others determined to have standing under these circumstances." (Torres, supra, 13 Cal.App.4th at p. 1048, fn. 7.) Here, plaintiff asserts she is similarly situated to other taxpayers who payall of the same taxes as she does, but who also happen http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, Ist Appellate Dist., Ist... Page 5 of 7 to pay property taxes. For purposesofthis appeal, we assume,without deciding, that plaintiff is similarly situated to taxpayers who have been accorded standing undersection 526a. The equalprotection clause "*compel[s] recognition of the proposition that personssimilarly situated with respectto the legitimate purpose of the law receivelike treatment." (Darces v. Woods (1984) 35 Cal.3d 871, 885.) A state cannot "deny to any personwithin its jurisdiction the equal protection of the laws" under the Fourteenth Amendmentofthe federal Constitution. (U.S. Const., 14th Amend., § 1.) Similarly, the state Constitution provides that a person may not be "denied equal protection of the laws." (Cal. Const., art. |, § 7.) Plaintiff argues that a strict scrutiny constitutional analysis applies. We disagree. “Classifications that disadvantage a ‘suspectclass' or impinge upon the exercise of a ‘fundamentalright' are subject to strict scrutiny; this requires the state to demonstratethatits classification ‘has been precisely tailored to serve a compelling governmentalinterest.’ [Citations.]" (Jensen v. Franchise Tax Bd. (2009) 178 Cal.App.4th 426, 434, fn. omitted (Jensen).) To the extentplaintiff claims section 526a creates a distinction based on wealth, we note courts have held that classifications based on wealth do not merit strict scrutiny. In Jensen, the court of appeal stated: "Suspect classifications include race, gender, nationalorigin, and alienage. Wealth generally confers benefits, and does not require the special protections afforded to suspect classes." (178 Cal.App.4th 426at p. 434 [wealthy taxpayers unsuccessfully maintained wealth is a suspectclassification and the tax imposed by Proposition 63 affects only "the class of "wealthy" persons.""]; see also Maher v. Roe (1977) 432 U.S. 464, 471 ["[T] his Court has neverheld that financial need alone identifies a suspect class for purposes of equal protection analysis. [Citations]".) Plaintiff relies on Serrano v. Priest (1971) 5 Cal.3d 584 (Serrano), in which the Supreme Court struck downa public school financing system based onlocal real property assessed valuations, concluding an educational system that producesdisparities of opportunity based upondistrict wealth violates principles of equal protection. (/d. at pp. 598-600.) In Serrano, the Court afforded constitutional protection to students from poordistricts because state law diminished that group's fundamentalright to an education equalto that of wealthy districts. The Court held that the methodoffinancing schools through ad valorem property taxes wasviolative of equal protection as it discriminated on the basis of wealth. (/d. at pp. 614-615.) Thus, the issue was that the financing system itself created an inequality affecting a fundamentalright, not that poor people are, as such, membersofa protectedclass. Wealso note the casescited in Serranorelate to unconstitutional treatment of indigents, not discrimination against persons who may not have enough moneyto buy a house. (Serrano, supra, 5 Cal.3d at pp. 597-598; see, e.g., Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663[poll tax]; Tate v. Short (1971) 401 U.S. 395 [indigent defendant cannotbe sentto jail for inability to pay a fine imposedfortraffic violations]; Douglas v. California (1963) 372 U.S. 353 [indigent defendant has a right to counsel on appeal]; Smith v. Bennett (1961) 365 U.S. 708[indigent defendant has a right to petition for habeas corpus despite his inability to pay a filing fee].) Serrano is inapposite becauseit does not purport to identify persons who cannotafford to own real property as a protected class. Thus,the rational basis test applies. A statute "should be sustainedif we find that its classification is rationally related to achievementofa legitimate state purpose." (Western & Southern Life Ins. Co. v. http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, 1st Appellate Dist., Ist... Page 6 of 7 State Bd. of Equalization (1981) 451 U.S. 648, 657.) "In a rational basis analysis, any conceivable state purpose or policy may be considered by the courts. [Citations.] The state “has no obligation to produce evidence to sustain the rationality of a statutory classification,’ which “""may be based on rational speculation unsupported by evidence or empirical data.” [Citation.] The party challenging the constitutionality of a state law must “"negative every conceivable basis which might support it." [Citation.] “A classification does notfail rational-basis review becauseit "is not made with mathematical nicety or becausein practice it results in some inequality."" [Citation.] The burden of demonstrating the invalidity of a challenged classification ‘rests squarely upon the party whoassails it.’ [Citation.]" (Jensen, supra, 178 Cal.App.4th at p. 436, italics omitted.) Here, plaintiff does not contend section 526a serves no conceivable state purpose. She merely arguesthat the statute, as construed under Torres and Cornelius, discriminates against some taxpayers on accountof the fact that they do not pay property taxes. Courts have noted thatit is not irrational to limit standing in taxpayer lawsuits. For example, the court in Cornelius stated it did not believe "it would be sound public policy to permit the haphazardinitiation of lawsuits against local public agencies based only on the paymentof state income taxes." (Cornelius, supra, 49 Cal.App.4th 1761 at pp. 1778-1779.) We also see a rational purposein limiting taxpayer standing to persons who pay property tax in the jurisdiction corresponding to the public entity defendant. Individuals who have directly paid a tax to the government haveobtained "a sufficiently personal interest in the illegal expenditure of funds by county officials to become dedicated adversaries." (Blair, supra, 5 Cal.3d at p..270.) Additionally, given the apparent widespread nature of defendants’ vehicle impoundment practices, this is not a case in which taxpayer standing must be construedliberally to allow a challenge to governmental action which would otherwise go unchallenged becauseofthe stricter requirementof standing imposed by case law. (See Blair, supra, 5 Cal.3d at pp. 267-268.) Presumably there are manyindividuals whose vehicles have been impounded by defendants, and whotherefore can fulfill the case law requirementof actualinjuryAlternatively, there are many homeowners who paytaxes directly to defendants and who havestandingto raise the claimsplaintiff seeks to pursue. We thus agree with defendantsthatplaintiff lacks standing to bring the instant action. DISPOSITION The judgmentis affirmed. Margulies, Acting P.J. and Becton, J..4 concurs. [1] Vehicle Code section 14602.6, subdivision (a)(1) provides, in part: "Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked, driving a vehicle while his or her driving privilegeis restricted pursuant to Section 13352 or 23575 and the vehicle is not equipped with a functioning, certified interlock device, or driving a vehicle without ever having been issued a driver's license, the peace officer may either immediately arrest that person and causethe removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person. . .. A vehicle so impounded shall be impounded for 30 days." [2] Division Five of this appellate district recently endorsed the holding of Torres in Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 872-873. http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 WHEATHERFORD v.City of San Rafael, Cal: Court of Appeal, Ist Appellate Dist., 1st... Page 7 of 7 [3] Similarly, in Arrieta v. Mahon (1982) 31 Cal.3d 381, plaintiffs were a group of tenants who brought a section 526a taxpayer's action to challenge the county marshal's policy of evicting all occupants when enforcing a writ of execution after an unlawful detainer judgment, regardless of whether the occupants were actually namedin the writ. (/d. at p. 385.) The Court concluded the plaintiffs had standing to bring the suit under section 526a. (/d. at p. 387.) However, as in Tobe, the Court did not discuss the issue of what specific taxesplaintiffs had paid that served to grant them standing. [4] Plaintiffs opening brief discusses many other cases that suffer from this same flaw. We need not address them here. [5] Fees and taxes are not the same. (See Northwest Energetic Services, LLC v_ California Franchise Tax Board (2008) 159 Cal.App.4th 841, 854 [fees, unlike taxes, are not compulsory and are intended to compensatefor services or benefits provided by the government].) [6] Standing under section 526a is notlimited to real property owners. (See Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229, 1236, holdingthat a retailer that paid sales taxesin the jurisdiction sufficiently established standing under section 526a becauseit "establishedliability to pay a tax assessed by Santa Barbara County." Here, defendants note section 526a applies to individuals and business owners on whom a governmentalentity directly assesses a tax. Such individuals would inciude, but would not necessarily consist solely of, real property owners. {7] "The issue of whether a party has standing focuses ontheplaintiff, not the issues he or she seeks to have determined.’ [Citation.] “A person whoinvokesthejudicial process lacks standingif he, or those whom he properly represents, “doesnot have a realinterest in the ultimate adjudication because [he] has neither suffered noris aboutto suffer anyinjury of sufficient magnitude reasonably to assurethatall of the relevant facts and issueswill be adequately presented." [Citation.]' [Citations.] “California decisions . . . generally require a plaintiff to have a personalinterestin thelitigation's outcome.’ [Citation.]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1001.) [‘] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. Save trees - read court opinions online on Google Scholar. http://scholar.google.com/scholar_case?case=15046577630134128372&q=%22Filed+May... 6/23/2014 PROOF OF SERVICE I, Mark T. Clausen, do hereby declare: I am overthe age of 18 and not a party to the above-entitled action. Mybusiness address is 769 Carr Avenue, Santa Rosa, California, 95404. On the date indicated below true copies of the attached document (Appellant’s Petition for Review)— were placed in a sealed envelope, postage prepaid, and deposited in the United States Mail, address as follows: Clerk of the California Supreme Court Earl Warren Building 350 McAllister Street San Francisco, CA 94102 (1 original & 8 copies; and 1 PDF E-filed copy to follow on assignment of a case number) Clerk of the Court of Appeal, Div. 1 Court ofAppeal Earl Warren Building 350 McAllister Street San Francisco, CA 94102 (Via E-Filing Only) Richard W. Osman Attorney for Defendant and Bertrand, Fox & Elliot Respondent City of San 2749 Hyde Street Rafael San Francisco, California 94109 Renee G. Brewer, Deputy County Counsel Attorneys for Defendant Office of Marin County Counsel and Respondent County of 3501 Civic Center Drive, Suite 275 Marin San Rafael, CA 94903 Marin County Superior Court Trial Court POB 4988 San Rafael, CA 94913 25 Cherrity Weatherford Plaintiff and Appellant (BY HAND DELIVERY) I declare that the foregoingis true and correct under-penalty of perjury of the laws of the State of California. So declaréd this 26th day of June 2014 in Santa Rosa,mane { Mark T. Clausen 26