SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN DIEGO HALL OF JUSTICE TENTATIVE RULINGS - April 11, 2013

EVENT DATE: 04/12/2013

EVENT TIME:

10:30:00 AM

DEPT.: C-73

JUDICIAL OFFICER:Steven R. Denton

CASE NO.:

37-2012-00087765-CU-MC-CTL

CASE TITLE: MELVIN SHAPIRO V CITY OF SAN DIEGO [IMAGED] CASE CATEGORY: Civil - Unlimited EVENT TYPE: Demurrer / Motion to Strike CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/11/2013
Defendant CITY OF SAN DIEGO'S general demurrers to each cause of action within the Complaint are SUSTAINED. Leave to amend and re-allege the causes of action will not be permitted. Defendant SAN DIEGO TOURISM MARKETING DISTRICT CORPORATION'S general demurrers to each cause of action within the Complaint are SUSTAINED. Leave to amend and re-allege the causes of action will not be permitted. As illustrated below, the Court finds (1) the validation proceeding to be the exclusive remedy available to Plaintiff; thus, Plaintiff's writ of mandate and declaratory and injunctive relief causes of action are not proper; and (2) Plaintiff lacks standing to prosecute a validation proceeding. A validation proceeding is the exclusive remedy for cases within the scope of the validation requirements. Cal. Code Civ. Proc. 869; see also Barratt American, Inc. v. City of Rancho Cucamonga, 37 Cal. 4th 685; 704-705 (2005). Therefore, a writ of mandate is not an available remedy and a parallel mandate action is unnecessary and inappropriate where a validation action is proceeding. Barratt American, Inc., 37 Cal. 4th at 705; County of Orange v. Barratt American, Inc. (2007)150 Cal. App. 4th 420, 440-441. Furthermore, declaratory and injunctive relief claims coextensive with a validation claim should be dismissed. Katz v. Campbell Union High School District (2006) 144 Cal.App.4th 1024, 1033-1034. The procedural framework for validation actions is found in California Code of Civil Procedure sections 860 through 870.5 (hereinafter referred to as the validation statutes). The validation statutes require consolidation of all challenges to a particular governmental action and entry of a single judgment. Cal. Code Civ. Proc. 865; Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal. App. 3d 191, 196. Any challenges to the validity of the governmental action must be raised in the validation proceeding and the validation judgment is binding on the agency seeking the judgment and on all other parties. Committee for Responsible Planning, 225 Cal. App. 3d at 197. Plaintiff contends in his opposition that Barratt does not apply because the city in that case did not cite any state law requiring validation jurisdiction under Section 860. To the contrary, the state law at issue in Barratt (Gov. Code 66022) mandated that a legal challenge had to be brought via validation action. Section 66022(b) states: "[a]ny action by a local agency or interested person under this section shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure." In this case, Plaintiff fails to cite any authority supporting his contention and in fact the applicable case law supports the opposite conclusion. Regarding standing, "A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the

CASE TYPE: Misc Complaints - Other

Event ID: 1222321

TENTATIVE RULINGS Page: 1

Calendar No.: 13

CASE TITLE: MELVIN SHAPIRO V CITY OF SAN CASE NUMBER: 37-2012-00087765-CU-MC-CTL DIEGO [IMAGED] superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem." C.C.P. 860. "If no proceedings have been brought by the public agency pursuant to this chapter, any interested person may bring an action within the time and in the court specified by Section 860 to determine the validity of such matter." C.C.P. 863 An interested person within the meaning of the validation statutes "is a person having a direct, and not merely a consequential, interest in the litigation." Torres v. City of Yorba Linda (1993) 13 Cal.App. 4th 1035, 1042 (quoting Associated Boat Industries v. Marshall (1951) 104 Cal. App. 2d 21, 22). In Torres, the court held that the plaintiffs, who had paid sales tax in the city, but did not reside or pay property taxes there, did not have standing to challenge a redevelopment project. Torres, 13 Cal. App. 4th at 1038-1039. The court also noted that sales tax was "a levy imposed on the retailer, not the consumer." Id. at 1047.
Here, Plaintiff does not pay the assessment/tax he challenges. Torres, 13 Cal.App.4th at 1047 (retail customer cannot assert taxpayer standing to challenge tax on businesses). Plaintiff is a property owner, pays property tax and pays sales tax in San Diego. On the other hand, the assessment/tax at issue directly impacts the business owners it is levied against, which does not include Plaintiff. Specifically, assessed businesses are hotel owners, operators or authorized representatives within the District. Plaintiff does not contend he falls into such a category of persons affected by the assessment/tax. Therefore, Plaintiff does not have a direct interest for the purposes of a validation action. Plaintiff alleges that these hotel assessments/taxes are passed onto the consumer and will negatively impact San Diegans; and as more hotel taxes are levied, it will discourage consumers from traveling to San Diego. Following his argument, as a San Diegan, this makes him an interested party because he may eventually pay the tax as a hotel guest in the city. True, the assessment/tax may be passed on to consumers, however this is not required. This falls squarely into a consequential interest: as a consequence of the assessment/tax levied against the businesses (which was voted on and passed by the businesses exclusively) the consumer may be burdened with the cost of the assessment/tax. Thus, Plaintiff provides no compelling arguments to address his lack of standing. AS A COURTESY TO THE COURT, IT IS REQUESTED THAT COUNSEL CONTACT EACH OTHER, AND THEREAFTER NOTIFY THE COURT ONLY IF ALL PARTIES AGREE TO SUBMIT TO THE TENTATIVE RULING. PLEASE CONTACT THE COURT AS SOON AS PRACTICABLE IF THE PARTIES ARE SUBMITTING.

Event ID: 1222321

TENTATIVE RULINGS Page: 2

Calendar No.: 13