Scol Corp. v. City of Los Angeles

I dissent.

It is noted that this matter is before us on appeal from an order of dismissal under Code of Civil Procedure section 581, subdivision 3, made following the sustaining of a demurrer without leave to amend. The ma *812 jority opinion affirms holding in effect that the facts pled disclose, as a matter of law, that plaintiff, in paying the tax in question, was a volunteer and therefore has no legal right to seek reimbursement from the city. I cannot subscribe to the reasoning or the result of such a conclusion as to the portion of the tax absorbed and paid by this retailer.

While it is true that the ordinance in question, Los Angeles City Ordinance No. 136,900 (Los Angeles Municipal Code, § 21.5.03.1), attempts to levy the tax upon the consumer, the ordinance requires the retailer to collect and remit the amount due to the city clerk (subsec. (e)) and provides that the “tax so collected by the retailer constitutes a debt owed by the retailer to the city. . . .” (§ 21.5.09.) It is clear that, regardless of his designation as tax collector, the retailer has the obligation to pay the tax as well as to maintain the accounting procedures and perform the other administrative…

COBEY, Acting P.J.

Scol Corporation appeals from an order dismissing its action against the City of Los Angeles pursuant to Code of Civil Procedure section 581, subdivision 3, following the sustaining without leave to amend of the city's general demurrer to its complaint. Scol's action was for a refund of tax monies, for declarations of constructive trusts, and for other declaratory relief.

The decisive question presented by this appeal is whether Scol had standing to sue — that is, whether any cause of action existed in Scol against the city on the basis of the facts pled by Scol in its complaint. (See Parker v. Bowron, 40 Cal.2d 344, 351 [ 254 P.2d 6 ]; Klopstock v. Superior Court, 17 Cal.2d 13, 19 [ 108 P.2d 906 , 135 A.L.R. 318 ].)

According to Scol's complaint, Scol was a retailer of alcoholic beverages within the meaning of section 21.5.03.1 of the Los Angeles Municipal Code (Ordinance No. 136,900). In the first cause of action of its complaint Scol, on behalf of itself and all others similarly situated, sought a refund from the city of $320 of so-called tipplers' tax monies it paid on behalf of its customers on sales of alcoholic beverages Scol made to them in…

Scol Corporation appeals from an order dismissing its action against the City of Los Angeles pursuant to Code of Civil Procedure section 581, subdivision 3, following the sustaining without leave to amend of the city’s general demurrer to its complaint. Scol’s action was for a refund of tax monies, for declarations of constructive trusts, and for other declaratory relief.

The decisive question presented by this appeal is whether Scol had standing to sue—that is, whether any cause of action existed in Scol against the city on the basis of the facts pled by Scol in its complaint. (See *808 Parker v. Bowron, 40 Cal.2d 344, 351 [ 254 P.2d 6 ]; Klopstock v. Superior Court, 17 Cal.2d 13, 19 [ 108 P.2d 906 , 135 A.L.R. 318 ].)

According to Scol’s complaint, Scol was a retailer of alcoholic beverages within the meaning of section 21.5.03.1 of the Los Angeles Municipal Code (Ordinance No. 136,900). In the first cause of action of its complaint Scol, on behalf of itself and all others similarly situated, sought a refund from the city of $320 of so-called tipplers’ tax monies it paid on behalf of its customers on sales of alcoholic beverages Scol made to them in February 1969. The…