SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

THOMAS H. PADILLA SR. and DARLENE PADILLA, Individually and as Trustees of the Padilla Living Trust, individually and on behalf of all others similarly situated,

Plaintiffs,

vs.

CITY OF SAN JOSE; and DOES 1 through 50, inclusive,

Defendants.
Case No. 2017-1-CV-307419

TENTATIVE RULING RE: DEMURRER TO FIRST AMENDED COMPLAINT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on March 29, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action. According to the allegations of the First Amended Complaint (“FAC”), filed on October 18, 2017, plaintiffs Thomas H. Padilla, Sr. and Darlene Padilla (collectively, “Plaintiffs”) bring this action to end, as well as compensate residents for, defendant City of San Jose’s (the “City”) improper and illegal practice of recording and maintaining “special assessment” liens on previously-encumbered residential property as a means to collect unpaid garbage collection service charges. (FAC, ¶ 1.) The City has acted pursuant to an ordinance that conflicts with and is preempted by the state constitution and state statutes governing municipal collection practices and lien priorities. (Id. at ¶ 2.) Plaintiffs allege the City has mischaracterized the liens as “special assessments,” thereby forcing property owners not only to pay off delinquent charges, but also to pay late charges and administrative fees. (Id. at ¶ 34.) Plaintiffs are residential property owners who seek to stop the City from continuing to maintain these liens, and to cause the City and/or defendant County of Santa Clara (the “County”) to refund payments made by property owners to clear those liens through special assessments included in their property taxes. (Id. at ¶ 3.)

The FAC sets forth the following causes of action: (1) Declaratory Relief (against all defendants); (2) Permanent Injunction (against all defendants); (3) Inverse Condemnation and Violation of Due Process (against the City); and (4) Negligence (against the City.)
The City previously demurred to the entire Complaint on the grounds that there was a defect or misjoinder of parties and that the Complaint failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc, § 430.10, subds. (d), (e).) The Court sustained the demurrer with leave to amend on the ground that there was a defect of parties.

The City now demurs to the FAC on the grounds that the FAC fails to state a cause of action and that there is a misjoinder of parties. The County demurs on the grounds that the FAC fails to state a cause of action and that the Court lacks subject matter jurisdiction.

II. REQUESTS FOR JUDICIAL NOTICE

A. The City’s Request for Judicial Notice

The City requests judicial notice of the San Jose Municipal Code, Title 9, Ch. 9.10, Part 8 and legislative history materials related to a 1973 assembly bill, AB No. 1342.

The Court can take judicial notice of the San Jose Municipal Code pursuant to Evidence Code section 452, subdivision (b). The Court can also take judicial notice of legislative history. (See In re Greg F. (2012) 55 Cal.4th 393, 409, fn. 2.)

Plaintiffs object that the version of the municipal code section for which the City requests judicial notice is not the version that was in effect during the relevant time period in this action. For reasons discussed below, the Court finds this version of the municipal code section is relevant.

Plaintiffs also object that the legislative history is not relevant and may not be considered because the subject statute (Gov. Code, § 25831) is clear and unambiguous. The Court finds the materials are relevant and are proper subjects of judicial notice.

Accordingly, Defendant’s request for judicial notice is GRANTED.

B. The County’s Requests for Judicial Notice

The County requests judicial notice of Plaintiffs’ claim against the County dated October 13, 2017, in addition to the County’s responses and the February 26, 2018 rejection of the claim. A court can take judicial notice of public records concerning compliance with the claims presentation requirement. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376.)

In connection with the reply papers, the County requests judicial notice of several pages from the City’s reply memorandum of points and authorities and reply to Plaintiffs’ objections to the City’s request for judicial notice. The Court can take judicial notice of these pages as court records pursuant to Evidence Code section 452, subdivision (d).

The County also requests judicial notice of two letters sent to Plaintiffs’ counsel regarding Plaintiffs’ Assessment Appeal Applications to the Assessment Appeals Board. As stated previously, the Court can take judicial notice of public records concerning compliance with the claims presentation requirement.
Lastly, the County seeks judicial notice of the County’s Ordinance Code, sections A4-13 and A4-16. The Court can take judicial notice of these sections as regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (Evid. Code, § 452, subd. (b).)

Accordingly, the County’s requests for judicial notice are GRANTED.

C. Plaintiffs’ Request for Judicial Notice

Plaintiffs request judicial notice of the following: (1) San Jose’s Municipal Code, Title 9, Ch. 9.10, Part 8, as codified prior to amendments adopted on May 19, 2015; (2) San Jose’s Ordinance No. 29562; (3) legislative history materials relating to Stats. 1972, Ch. 175 (AB 2304) and the enactment of California Government Code § 38790.1; and (4) Assessment Appeals Applications filed on October 13, 2017 by Plaintiffs’ counsel with the County of Santa Clara Assessment Appeals Board. The request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (b), (c), (h).)

III. DISCUSSION

Both the City and the County have filed separate demurrers. One argument made by both the City and the County (collectively, “Defendants”) is dispositive. Specifically, Defendants argue Plaintiffs have not complied with the “payment under protest” requirement of Health and Safety Code section 5472.

Health and Safety Code section 5472 states, in relevant part: “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 or city and county in the superior court to recover any money which the legislative body refuses to refund.” The payment under protest language of section 5472 is mandatory. (Los Altos Golf and Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203-206 (“A property owner who wishes to challenge sewer fees will readily see that the governing provisions are set forth in the Health and Safety Code, which continues to require payment under protest.”).)

Plaintiffs argue section 5472 is inapplicable. In making this argument, Plaintiffs point out that the City is relying on a version of its waste collection ordinance that was enacted on May 19, 2015. Under that waste collection ordinance, Plaintiffs admit “[a] taxpayer seeking a refund of those taxed fees must pay under protest, pursuant to H&SC § 5472.” (Opp. to County’s Demurrer at p. 5:24-25.). Plaintiffs contend, however, that the prior version of the waste collection ordinance applies because the liens at issue in this case were recorded when the previous version of the ordinance was in effect, and since section 5472 is not cited in that prior version of the ordinance, it does not apply.

The Court disagrees that section 5472 is inapplicable. Health and Safety Code section 5471, subdivision (a), provides that a governmental entity has the power to enact an ordinance to collect fees in connection with its water, sanitation, storm drainage, or sewerage system. This includes fees for garbage and refuse collection. (Health & Saf. Code, § 5470, subd. (f).) Plaintiffs cite no authority for the proposition that a governmental entity only has this ability if it specifically cites the Health and Safety Code in the resulting ordinance.

Both the new and the old version of the subject ordinance concern “payment for residential solid waste services” and both contain very similar language. (Compare The City’s Request for Judicial Notice in Support of Demurrer to Plaintiffs’ First Amended Complaint, Ex. 1 with Plaintiffs’ Request for Judicial Notice in Opposition to Defendants’ Demurrer to the First Amended Complaint, Ex. A.) As stated previously, section 5471 authorizes the City to collect payments for charges for garbage and refuse collection; both the new and old version of the ordinance relate to such collection. The fact that only one version of the ordinance specifically refers to Division 5, Part 3, Chapter 6, Article 4 of the Health and Safety Code has no impact on whether both versions of the ordinance are authorized by section 5471.

In sum, Plaintiffs are required to allege payment under protest pursuant to Health and Safety Code section 5472. Plaintiffs have not done so and give no indication they can amend their pleading to correct this deficiency. Accordingly, Defendants’ demurrers to the FAC are SUSTAINED WITHOUT LEAVE TO AMEND on the ground that they fail to state a cause of action. The Court does not reach the parties’ other arguments.

The Court will prepare the final order if this tentative ruling is not contested.