Littlejohn

*611 *255 Plaintiff Larry Littlejohn appeals from a ruling sustaining a demurrer to his third amended complaint (complaint) without leave to amend. Littlejohn sought to sue Costco Wholesale Corporation and Costco Wholesale Membership, Inc. (Costco), the California Board of Equalization (Board) and Abbott Laboratories, Inc. (Abbott) to recover amounts he paid in sales tax reimbursement on purchases of Abbott's product Ensure.

Littlejohn alleged that because Ensure is properly categorized as a food product no sales tax was actually due on his purchases. Costco should not have charged him sales tax reimbursement, and was under no obligation to pay and should not have paid sales tax to the state on its sales of Ensure.

Littlejohn based his claim on a cause of action identified by our Supreme Court in Javor v. State Board of Equalization (1974) 12 Cal.3d 790 , 117 Cal.Rptr. 305 , 527 P.2d 1153 ( Javor ), that held under "the unique circumstances" of that case, that the customer could sue "to compel defendant retailers to make refund applications to the Board and in turn require the Board to respond to these applications by paying into court all sums, if any, due defendant retailers."…

This appeal presents the recurring question of whether there is a remedy for a customer who has paid sales tax reimbursement to a retailer upon the purchase of an item on which no sales tax was due but sales tax was nonetheless remitted by the retailer to the California State Board of Equalization (Board). 1 There is no question that only the retailer may request a refund from the Board, that only the Board may determine in the first instance whether an item is subject to payment of a sales tax, and that the customer may not recover any excess sales tax reimbursement from the retailer under consumer protection theories. It is also clear that the retailer may recover a refund only to the extent that the refund is passed on to the customer who paid the sales tax reimbursement. Thus, neither the retailer who paid the sales tax nor the Board that received it may have an incentive to initiate proceedings authorized by the Revenue and Taxation Code to determine whether a refund is due. The question therefore comes down to whether the customer may compel the retailer to request a refund from the Board. The majority in effect concludes that, as a practical matter, the customer may never…