Filed 11/25/15
                    CERTIFIED FOR PARTIAL PUBLICATION*

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION FIVE


GOLDEN GATE HILL DEVELOPMENT
COMPANY, INC.,
        Plaintiff and Appellant,                    A142500

v.                                                  (Alameda County
COUNTY OF ALAMEDA, et al.,                          Super. Ct. No. RG14713078)
        Defendants and Respondents.


        In a November 2009 election in the County of Alameda (County), voters approved
Measures I and J (the Measures), levying special parcel taxes by the Albany Unified
School District (District). Plaintiff and appellant Golden Gate Hill Development
Company, Inc. (appellant) is the owner of a parcel of real property in the City of Albany
subject to the tax. In February 2014, appellant filed the present lawsuit against the
County and District (respondents) seeking a refund of taxes paid under the Measures.1
The complaint alleges the tax rates in the Measures are improper because different rates
are imposed on residential and nonresidential properties, as well as nonresidential
properties of different sizes. The complaint references a recent decision in this district,
Borikas v. Alameda Unified School Dist. (2013) 214 Cal.App.4th 135 (Borikas), which
declared invalid a different parcel tax with similar rate classifications.



*
  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part IV.
1
  Appellant also named the Alameda County Assessor as a defendant. The trial court
sustained the Assessor‟s demurrer to the complaint. That ruling is not challenged on
appeal.

                                               1
       Respondents demurred, contending the complaint failed to state a claim because,
under Code of Civil Procedure2 section 860, et seq. (hereafter, the validation statutes),
appellant was required to present its claims in a “reverse validation action” within 60
days of passage of the Measures.3 The trial court sustained the demurrer without leave to
amend. Because appellant has not shown there is a basis for its refund claim independent
of the alleged invalidity of the Measures, we affirm.
                                      BACKGROUND
       The Measures were presented to voters in the District on November 3, 2009, and
the Registrar of Voters certified passage of the Measures on November 10. The
Measures each imposed different tax rates on residential and nonresidential properties, as
well as different tax rates on nonresidential properties of different sizes. In particular,
Measure I levied, for a period of five years, an annual $149 tax on each residential unit,
and the greater of $149 or $.03 per square foot on each parcel of nonresidential property.
Measure J combined (and extended) previously approved parcel taxes and levied an
annual $555 tax on each residential unit, and the greater of $555 or $.11 per square foot
on each parcel of nonresidential property.
       Appellant owns parcel number 66-2760-10-7 on Pierce Street in the City of
Albany (the Parcel). For fiscal years 2010-2011, 2011-2012, and 2012-2013, appellant
received property tax statements for the Parcel including parcel taxes under the Measures
totaling over $197,000. Appellant paid the assessments associated with the Measures.
       The Measures each state: “Taxpayers seeking a refund of any tax paid shall follow
the procedures applicable to property tax refunds pursuant to the California Revenue and
Taxation Code.” In July 2013, appellant presented to respondent County a claim for a
refund pursuant to Revenue and Taxation Code section 5096, et seq. Revenue and


2
 All undesignated statutory references are to the Code of Civil Procedure.
3
 A proceeding by which an “interested person” (§ 863) seeks to determine the validity of
an act of a public agency within the scope of the validation statutes is referred to as a
“reverse validation action.” (Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 30 &
fn. 16 (Kaatz).)

                                              2
Taxation Code section 5097, subdivision (a)(2), authorizes requests for refunds within
four years of the date of payment.
       In February 2014, appellant filed the present lawsuit. The complaint alleges the
claim for a refund was deemed rejected due to respondent County‟s failure to act on the
claim within six months. (Rev. & Tax. Code, § 5141.) It asserts a cause of action under
Revenue and Taxation Code section 5140 seeking a partial refund of parcel taxes paid.
The complaint alleges the Measures violate Government Code section 50079 as
construed by Borikas, supra, 214 Cal.App.4th 135. In particular, because the Measures
“are structured to impose different tax rates on residential versus nonresidential
properties, as well as different tax rates on differently sized parcels of real property, and
unequal rates are not proper, the Taxpayer is entitled to a refund of the difference and to
be taxed equally with other taxpayers.”
       In March 2014, respondent District demurred to the complaint; respondent County
joined in the demurrer. Respondents argued appellant could not state a claim for a refund
because the validity of the Measures had not been challenged through a timely reverse
validation action under section 860 et seq. In May 2014, the trial court sustained the
demurrer without leave to amend. This appeal followed.
                                       DISCUSSION
I.     Standard of Review
       “A demurrer tests the legal sufficiency of the complaint . . . .” (Hernandez v. City
of Pomona (1996) 49 Cal.App.4th 1492, 1497.) In determining whether appellant
properly stated a claim for relief, “our standard of review is clear: „ “We treat the
demurrer as admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.] We also consider matters which may be
judicially noticed.” [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context. [Citation.] When a
demurrer is sustained, we determine whether the complaint states facts sufficient to
constitute a cause of action. [Citation.] And when it is sustained without leave to amend,
we decide whether there is a reasonable possibility that the defect can be cured by


                                              3
amendment: if it can be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.] The burden of proving
such reasonable possibility is squarely on the plaintiff.‟ ” (Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.) Our review is de novo. (Ibid.)
II.    The Validation Statutes
       “[S]ections 860 through 870 . . . provide an expedited process by which certain
public agency actions may be determined valid and not subject to attack.” (Kaatz, supra,
143 Cal.App.4th at p. 19; see generally City of Ontario v. Superior Court (1970) 2 Cal.3d
335, 340-342 (City of Ontario); Kaatz, at pp. 29–31.) The validation statutes apply to a
matter when “any other law” authorizes their application, and the statutes provide for a
60-day period during which an action may be brought to “determine the validity of such
matter.” (§ 860; see also Kaatz, at p. 31.)4 As relevant in the present case, Government
Code section 50077.5, subdivision (a) provides that the validation statutes “appl[y] to any
judicial action or proceeding to validate, attack, review, set aside, void, or annul an
ordinance or resolution approved by the voters pursuant to this article on or after January
1, 1986, that levies a special tax . . . .” (See also Katz v. Campbell Union High Sch. Dist.
(2006) 144 Cal.App.4th 1024, 1033 (Katz).) Appellant does not dispute that a challenge
to the validity of the Measures is within the scope of Government Code section 50077.5,
subdivision (a).
       While section 860 authorizes a public agency to bring an action to validate matters
to which the validation statutes apply, the public is also authorized to bring actions.
Thus, section 863 provides that if the relevant public agency does not initiate validation
proceedings, “any interested person may bring an action within the time and in the court
specified by Section 860 of this chapter to determine the validity of such matter.” (See


4
 Section 860 provides, “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 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.”

                                              4
also City of Ontario, supra, 2 Cal.3d at p. 341; Kaatz, supra, 143 Cal.App.4th at p. 30.)5
The 60-day period specified in section 860 applies to any such “reverse validation
action.” (Kaatz, at p. 30 & fn. 16; see also City of Ontario, at p. 341.)
       If no action is brought within the 60-day timeframe, the public is “forever barred
from contesting the validity of the agency‟s action in a court of law.” (City of Ontario,
supra, 2 Cal.3d at p. 341; see also Kaatz, supra, 143 Cal.App.4th at p. 30.) Practically
speaking, this means that “an agency may indirectly but effectively „validate‟ its action
by doing nothing to validate it; unless an „interested person‟ brings an action of his own
under section 863 within the 60-day period, the agency‟s action will become immune
from attack whether it is legally valid or not.” (City of Ontario, at pp. 341–342; see also
Kaatz, at p. 19 [“The public agency may validate its action by either active or passive
means. It may initiate an action in rem to establish the validity of the matter. (§ 860.)
Alternatively, the agency may do nothing, and if no „interested person‟ brings suit to
determine the validity of the public agency‟s action within 60 days (§ 863), the action is
deemed valid. (§ 869.)”]; Embarcadero Mun. Improvement Dist. v. County. of Santa
Barbara (2001) 88 Cal.App.4th 781, 792 (Embarcadero) [“We have found no authority
supporting [a] . . . distinction between those cases where a validation judgment was
entered and here, where the annexation was validated by doing nothing.”].) “As to
matters „which have been or which could have been adjudicated in a validation action,


5
  Section 863 provides, “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. The public
agency shall be a defendant and shall be served with the summons and complaint in the
action in the manner provided by law for the service of a summons in a civil action. In
any such action the summons shall be in the form prescribed in Section 861.1 except that
in addition to being directed to „all persons interested in the matter of [specifying the
matter],‟ it shall also be directed to the public agency. If the interested person bringing
such action fails to complete the publication and such other notice as may be prescribed
by the court in accordance with Section 861 and to file proof thereof in the action within
60 days from the filing of his complaint, the action shall be forthwith dismissed on the
motion of the public agency unless good cause for such failure is shown by the interested
person.”

                                              5
such matters . . . must be raised within the statutory limitations period in section 860 et
seq. or they are waived.‟ ” (California Commerce Casino, Inc. v. Schwarzenegger (2007)
146 Cal.App.4th 1406, 1420 (California Commerce).)
       “[T]he purpose of the validation statutes is to provide a simple and uniform
method for testing the validity of government action.” (Moorpark Unified School Dist. v.
Superior Court (1990) 223 Cal.App.3d 954, 960.) “ „A validating proceeding differs
from a traditional action challenging a public agency‟s decision because it is an in rem
action whose effect is binding on the agency and on all other persons.‟ ” (Committee for
Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 197.) “ „ “[A]
central theme in the validating procedures is speedy determination of the validity of the
public agency‟s action.” [Citation.] “The text . . . and cases which have interpreted the
validation statutes have placed great importance on the need for a single dispositive final
judgment.” [Citation.] The validating statutes should be construed so as to uphold their
purpose, i.e., “the acting agency‟s need to settle promptly all questions about the validity
of its action.” ‟ ” (California Commerce, supra, 146 Cal.App.4th at pp. 1420–1421; see
also Katz, supra, 144 Cal.App.4th at p. 1028; Embarcadero, supra, 88 Cal.App.4th at pp.
789–790.)
III.   Appellant Has Not Shown It Can State a Claim for a Refund
       In the present case, appellant filed its refund action in February 2014, well after
the period for challenging the validity of the Measures expired. In sustaining the
demurrer without leave to amend, the trial court reasoned, “Although Plaintiff titles this
claim as a refund of taxes, the underlying premise of this claim is that Plaintiff is entitled
to a refund because the taxes assessed on Plaintiff‟s real property pursuant to [the
Measures], violated Government Code section 50079, pursuant to the recent holding of
[Borikas, supra, 214 Cal.App.4th 135]. In order for Plaintiff to recover on its claim, a
finding would need to be made that the taxes charged by [the Measures] were illegal. As
such, this court finds that Plaintiff‟s claim is in essence a „reverse validation action‟ and
therefore needed to be brought within 60 days of passage of [the Measures].”
       Government Code section 50079 authorizes a school district to impose “qualified


                                              6
special taxes,” which means “special taxes that apply uniformly to all taxpayers or all real
property within the school district,” with certain exceptions. (See also Borikas, supra,
214 Cal.App.4th at p. 135.) As noted previously, the complaint in the present case
references the decision in Borikas, in which a parcel tax approved by Alameda Unified
School District voters was challenged in a validation action. (Id. at p. 141.) Similar to
the Measures, the enactment imposed “different tax rates on residential and
commercial/industrial properties, as well as different rates on different sized
commercial/industrial properties.” (Id. at p. 139.) Borikas held that Government Code
section 50079 “does not authorize school districts to impose special taxes that classify
and differentially tax property within the district” and severed the unauthorized
provisions from the measure at issue in that case. (Borikas, at pp. 164, 168.)
       Appellant admits that it could have challenged the validity of the Measures
through a validation action and that the Measures were long ago deemed valid by
operation of the validation statutes. Appellant states, “In this instance, a validation action
could have been utilized to determine the validity of the Measures . . . .” Appellant also
admits the time period for a validation action has passed and “the Measures are deemed
to be validated.” Nevertheless, appellant contends its claim is not barred, because it
“only seeks return of a portion of the taxes it paid and only seeks to litigate the taxes it
paid.” We agree the difference in the relief sought (a refund rather than invalidation)
means appellant‟s claim is not properly characterized as a reverse validation action.
However, that distinction does not change the result, because appellant‟s claim for a
refund is based on the alleged illegality of the tax scheme enacted by the Measures.
(Embarcadero, supra, 88 Cal.App.4th at p. 789 [“The gravamen of a complaint and the
nature of the right sued upon, rather than the form of the action or relief demanded,
determine which statute of limitations applies.”]; Hills for Everyone v. Local Agency
Formation Com. (1980) 105 Cal.App.3d 461, 468 [“it is the nature of the governmental
action being challenged rather than the basis for the challenge that determines the
procedure to be utilized”]; accord McLeod v. Vista Unified School Dist. (2008) 158
Cal.App.4th 1156, 1165 (McLeod).) Appellant describes the grounds for its refund claim


                                               7
as “that a portion of the tax improperly was erroneously or illegally collected and or
illegally assessed or levied because it provided for a non-uniform and generally higher
tax rate against the Taxpayer‟s property.” Because the Measures are conclusively valid,
appellant fails to state a claim for a refund.6
       Appellant argues its position finds support in City of Ontario, supra, 2 Cal.3d 335.
In that case, taxpayers challenged a city‟s plan for the financing of an automobile racing
stadium that included the issuance and sale of mortgage bonds, the award of a contract to
a private party for the construction of the stadium, and the lease of the stadium to a for-
profit entity. (Id. at p. 338.) The plaintiffs claimed the plan promoted a private
commercial enterprise without any public benefit and was an unconstitutional gift of
public funds. (Id. at pp. 338–339.) The plaintiffs sought three forms of relief: an
injunction to restrain, among other things, further expenditure of public funds; restitution
to the city of all money paid out for unlawful purposes; and a declaration that the stadium
scheme was invalid. (Id. at p. 339.) The city moved to dismiss the complaint on the
ground the plaintiffs failed to comply with certain requirements of the validation statutes.
(Id. at p. 339.) The trial court denied the motion, impliedly finding the plaintiffs‟ claims
were governed by the validation statutes but expressly holding the plaintiffs had shown
good cause to excuse their failure to comply with certain requirements in the statutes
relating to publication of summons. (Ibid.)
       The California Supreme Court denied the city‟s request for a writ of prohibition.
(City of Ontario, supra, 2 Cal.3d at p. 348.) The Court discussed the “humble
beginnings” of the validation statutes in 1961 and expressed concern that the enactment
of Government Code provisions applying the statutes to, among other things, government
contracts, had caused the statutes to “grow[] far beyond the scope originally conceived by

6
 In its reply brief, appellant asserts vaguely that “if Appellant‟s case is remanded for a
determination on the merits, Appellant will have to prove” the taxes at issue were “illegal
at the time they were collected, assessed, or levied.” Appellant does not, however,
explain how it can make that showing if the Measures are deemed valid, and fails to
demonstrate how its complaint could be amended to state a claim for a refund on a basis
other than the invalidity of the Measures.

                                                  8
the [Judicial] Council,” which had first proposed enactment of the validation statutes.
(City of Ontario, at pp. 340–341.) The Court expressed doubt that the validation statutes
applied “[t]o the extent plaintiffs ask for injunctive relief unrelated to the performance of
the terms of the” stadium agreement, or to the extent the restitution claim “goes beyond
the terms of the” agreement. (Id. at pp. 344–345.) The Court ultimately concluded “the
question whether [the validation statutes] appl[y] to the case at bar presents a „complex
and debatable‟ issue” and, therefore, “a mistaken but reasonable decision by plaintiffs‟
counsel that [they] did not apply constitute[d] good cause for the trial court to permit
belated compliance with [their] terms.” (Id. at pp. 345–346; see also In re Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 825–827.)
       Appellant asserts City of Ontario “distinguished claims against an entire
government action (in this instance, that would be the Measures) and individual actions to
recover monetary amounts.” Appellant is mistaken. To the extent City of Ontario
expressed skepticism that the validation statutes precluded all of the plaintiffs‟ claims
(see In re Quantification Settlement Agreement Cases, supra, 201 Cal.App.4th at p. 827),
it was because the injunction and restitution claims “involved matters that went beyond
the validity of the challenged speedway agreement itself.” (Katz, supra, 144 Cal.App.4th
at pp. 1033–1034 [distinguishing City of Ontario]; see also Friedland v. City of Long
Beach (1998) 62 Cal.App.4th 835, 848 (Friedland).) Appellant has not shown its claim
for a refund involves a matter beyond the validity of the Measures themselves.7 Neither

7
  The other case appellant cites on this point, County of Santa Clara v. Redevelopment
Agency (1993) 18 Cal.App.4th 1008, is also distinguishable. There, a county and a
school district challenged a redevelopment agency‟s proposed bond issuance. (Id. at p.
1011.) The trial court severed the county‟s contract claim relating to a prior agreement
with the agency from claims regarding the validity of the bond issuance. (Id. at p. 1016.)
The court of appeal affirmed because “[t]he contract causes of action are separate and
independent from the remaining claims . . . . The contract issue is whether there was any
violation of the prior agreement that the Agency would pay the County a portion of
increment revenue. This question is completely unrelated to the issues whether the bond
issuance contravenes the duration provisions of the plans or is invalid due to
noncompliance with CEQA.” (Id. at pp. 1016–1017.) The court stated that the “breach
of contract claim is not a validation action,” because monetary recovery was the only

                                              9
has appellant shown that its claim the Measures impose an illegal tax could not have been
adjudicated in a validation action. (See Friedland, at pp. 846–847 [trial court properly
sustained demurrer without leave to amend where the plaintiffs‟ constitutional claim
could have been adjudicated in a prior validation action].)
       Appellant also contends it is entitled to pursue its refund claim based on the
language in the Measures requiring that “[t]axpayers seeking a refund of any tax paid
shall follow the procedures applicable to property tax refunds pursuant to the California
Revenue and Taxation Code.” Appellant contends its refund claim is proper under
Revenue and Taxation Code section 5096, subdivisions (b) and (c), which provide for the
refund of taxes “[e]rroneously or illegally collected” or “[i]llegally assessed or levied.”8
Appellant argues its refund claim is timely because Revenue and Taxation Code section
5097 requires that a refund claim be presented within four years of a payment, and
Revenue and Taxation Code section 5141 provides for a six-month period for filing a
refund action after the relevant governmental entity‟s denial of a claim for a refund.
       Although the Measures mandate use of the Revenue and Taxation Code
procedures for refund claims, and although appellant‟s refund claim appears to be timely
under the Revenue and Taxation Code, appellant‟s claim lacks any legal basis, because
the Measures were long ago deemed valid by operation of the validation statutes.



remedy for the breach. (Id. at p. 1016.) It appears the court reasoned the county‟s
contract claim was outside the scope of the validation statutes because the claim was
based on breach of the prior contract rather than the invalidity of the bond issuance itself.
That is, if the county‟s claim was correct it did not mean that the issuance was be illegal,
but, rather, that the county was due money for breach of the prior agreement. In contrast,
in the present case appellant‟s claim is based on a contention the Measures are illegal.
8
  Revenue and Taxation Code section 5096 provides: “Any taxes paid before or after
delinquency shall be refunded if they were: [¶](a) Paid more than once. [¶](b)
Erroneously or illegally collected. [¶](c) Illegally assessed or levied. [¶](d) Paid on an
assessment in excess of the ratio of assessed value to the full value of the property . . .
[¶](e) Paid on an assessment of improvements when the improvements did not exist on
the lien date. [¶](f) Paid on an assessment in excess of the value of the property as
determined . . . by the county assessment appeals board. [¶] (g) Paid on an assessment in
excess of the value of the property as determined by the assessor . . . .”

                                             10
Although the Measures specify the procedure for refund claims, nothing in the Measures
specifies a validation procedure different from that proscribed by the validation statutes.9
Contrary to appellant‟s assertions, application of the Revenue and Taxation Code
procedures to claims for refunds is consistent with the trial court‟s conclusion that the
validation statutes preclude the basis for appellant‟s claims. In the language of Revenue
and Taxation Code section 5096, subdivisions (b) and (c), the taxes for which appellant
seeks a refund were not “[e]rroneously or illegally collected” or “[i]llegally assessed or
levied,” because the Measures had been deemed valid. On the other hand, taxpayers like
appellant remain free to present claims for refunds not based on the validity of the
Measures themselves, such as claims based on errors in implementation of the Measures
or based on other matters specified in Revenue and Taxation Code section 5096. (See
Embarcadero, supra, 88 Cal.App.4th at p. 792 [“Those cases where the courts have
permitted lawsuits brought beyond the 60–day period alleged illegal implementation of a
validated action [citations] or municipal contracts not subject to the validating statutes
[citation].”].) Thus, the refund procedure in the Measures is not, contrary to appellant‟s
assertions, rendered “meaningless or extraneous” by a conclusion that the validation
statutes preclude a refund claim based on the validity of the Measures.10




9
  Appellant quotes State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633, 638,
for the proposition that, under the California Constitution, “the sole legal avenue for
resolving tax disputes is a postpayment refund action. A taxpayer may not go into court
and obtain adjudication of the validity of a tax which is due but not yet paid.” However,
that statement was in reference to a challenge to an actual tax assessment levied on a
taxpayer; appellant elsewhere admits the legality of the Measures could have been
challenged in a timely validation action. The other case cited by appellant on this point,
Flying Dutchman Park, Inc. v. City & County. of San Francisco (2001) 93 Cal.App.4th
1129, 1135, also involved a “tax deficiency determined to be due and owing” and did not
address whether the validation statutes applied to the tax at issue.
10
   Nothing in our opinion should be construed to prohibit a taxpayer from seeking a tax
refund where the validity of the relevant enactment was timely and successfully
challenged by a different taxpayer. In that instance, the tax levied under the invalidated
enactment would not have been legal at the time of the assessment.

                                             11
IV.    Appellant Has Not Shown A Violation of Due Process
       Finally, appellant argues that denial of its tax refund claim would violate its right
to due process under the federal constitution.11 Appellant has not shown a violation of
due process.
       Appellant relies on Reich v. Collins (1994) 513 U.S. 106 (Reich), where the
United States Supreme Court reviewed a decision of the Georgia Supreme Court
affirming dismissal of a taxpayer‟s claim seeking a refund of income taxes the State of
Georgia had collected pursuant to a statutory scheme that subsequently had been held
unconstitutional. (Id. at pp. 108–109.) The Georgia Supreme Court held that Georgia‟s
tax-refund statute, which authorized refunds of “ „erroneously or illegally assessed and
collected‟ ” taxes, did not apply when a taxpayer sought a refund of taxes collected
pursuant to a statute that was later held unconstitutional. (Id. at p. 109.) The United
States Supreme Court reversed. The Court reaffirmed states have the “flexibility” to
provide a remedy for taxes collected in violation of federal law either “before the
disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both.”
(Id. at p. 108; see also id. at pp. 110–111.) However, a state may not do what Georgia
did, “hold[ing] out what plainly appears to be a „clear and certain‟ postdeprivation
remedy and then declar[ing], only after the disputed taxes have been paid, that no such
remedy exists.” (Id. at p. 108; see also id. at p. 111; accord Newsweek v. Florida Dept. of
Revenue (1998) 522 U.S. 442, 444–445.)
       Reich, which makes no reference to any applicable Georgia law akin to the
validation statutes, is distinguishable. As explained previously and as appellant
concedes, the Measures were validated as a matter of law when they were not challenged
within the statutory timeframe. Accordingly, the taxes were not “[e]rroneously or
illegally collected” or “[i]llegally assessed or levied” within the meaning of section 5096,


11
  Appellant failed to present this contention in opposing respondents‟ demurrer, but we
exercise our discretion to consider the issue on appeal. (In re Marriage of Moschetta
(1994) 25 Cal.App.4th 1218, 1227.) However, we address only the very limited citations
and arguments presented by appellant.

                                             12
subdivisions (b) and (c) of the Revenue and Taxation Code. Thus, unlike the situation in
Reich, appellant was not denied the refund remedy specified in the Measures. Appellant
may seek a refund for illegally assessed taxes, but the taxes enacted by the Measures were
not illegal due to the operation of the validation statutes. Moreover, the present situation
is not like Reich, where predeprivation procedures were inadequate to satisfy due process,
because “no reasonable taxpayer would have thought that they represented, in light of the
apparent applicability of the refund statute, the exclusive remedy for unlawful taxes.”
(Reich, supra, 513 U.S. at p. 111.) In contrast, a reasonable taxpayer would have
recognized the need to timely challenge the Measures, in order to prevent validation of
the Measures by operation of the validation statutes.
                                      DISPOSITION
       The trial court‟s judgment is affirmed. Costs on appeal are awarded to
respondents.




                                             13
                     SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A142500)



                14
Superior Court of Alameda County, No. RG14713078, Hon. John M. True, Judge.

Greenberg Traurig, Bradley R. Marsh, William J. Goines and Karen Rosenthal, for
Plaintiff and Appellant.

Reed Smith, Mardiros H. Dakessian, Mike Shaikh, Jenny Choi and John R. Messenger,
for California Taxpayers Association as Amicus Curiae on behalf of Plaintiff and
Appellant.

Donna R. Ziegler, County Counsel, John T. Seyman and Farand C. Kan, Deputy County
Counsel, for Defendant and Respondent County of Alameda.

Atkinson, Andelson, Loya, Ruud & Romo, David A. Soldani and Lisa R. Allred,
Defendant and Respondent Albany Unified School District.

Lozano Smith, Jeffery L. Kuhn, Sloan R. Simmons, and Daniel M. Maruccia; California
School Boards Association's Education Legal Alliance, Keith J. Bray and Joshua R.
Daniels, for California School Boards Association's Education Legal Alliance as Amicus
Curiae on behalf of Defendant and Respondent Albany Unified School District.




                                          15
