Filed 4/28/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION ONE


                                        B291341

                                        JCCP No. 4897
COUNTY INMATE
TELEPHONE SERVICE CASES.                (Los Angeles County Super. Ct.
                                        case No. BC635599)


_______________________________

      APPEAL from a judgment of the Superior Court for the
County of Los Angeles. Carolyn B. Kuhl, Judge. Affirmed.
      Kaye, McLane, Bednarski & Litt, Barrett S. Litt, Ronald O.
Kaye; Rapkin & Associates, Michael S. Rapkin and Scott B.
Rapkin for Plaintiffs and Appellants.
      Jonathan M. Coupal, Timothy A. Bittle and Laura E.
Dougherty for Howard Jarvis Taxpayers Association as Amicus
Curiae on behalf of Plaintiffs and Appellants.
      Schonbrun Seplow Harris & Hoffman and Catherine
Sweetser for Human Rights Defense Center, Public Counsel,
American Civil Liberties Union of Southern California, Worth
Rises, Prison Law Office, and Impact Fund as Amici Curiae on
behalf of Plaintiffs and Appellants.
      Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and
Ryan D. Harvey for Defendants and Respondents Counties of Los
Angeles, Orange, San Bernardino, Ventura, Alameda and Santa
Clara.
      James R. Williams, County Counsel (Santa Clara), and
Michael Leon Guerrero, Deputy County Counsel, for Defendant
and Respondent County of Santa Clara.
      Arias & Lockwood, Christopher D. Lockwood; Lewis
Brisbois Bisgaard & Smith, John M. Porter and Arthur K.
Cunningham for Defendant and Respondent County of Riverside.
      Sharon L. Anderson, County Counsel (Contra Costa) and D.
Cameron Baker, Deputy County Counsel, for Defendant and
Respondent County of Contra Costa.
      Wagstaffe, Von Loewenfeldt, Busch & Radwick, Michael
Von Loewenfeldt, Frank Busch; John C. Beiers, County Counsel
(San Mateo) and David Silberman, Chief Deputy County Counsel,
for Defendant and Respondent County of San Mateo.
      Thomas E. Montgomery, County Counsel (San Diego),
Joshua Heinlein and Jeffrey P. Michalowski, Senior Deputy
County Counsel, for California State Association of Counties and
League of California Cities as Amici Curiae on behalf of
Defendants and Respondents.
             ____________________________________

                            SUMMARY
       In this coordinated proceeding, inmates in county jails in
nine California counties challenge the exorbitant commissions
paid by telecommunications companies to the nine counties under
contracts giving the telecommunications companies the exclusive
right to provide telephone service for the inmates. The




                                2
telecommunications companies pass on the cost of the
commissions to the inmates and their families in the fees charged
to use the inmate calling system, the only telephone system
available to them. The phone rates would be significantly lower
if they did not include charges to recoup the commissions paid to
the counties. The rates are not related to the cost of the services
provided.
       The inmates say these fees are unlawful taxes under
Proposition 26, which requires voter approval of “any levy, charge
or exaction of any kind imposed by a local government” unless
limited to the reasonable cost or value. (Cal. Const., art. XIII C,
§ 1, subd. (e).) None of the commissions in the nine county
contracts was approved by the voters. The inmates also allege
the commissions violate several statutory provisions.
       The trial court sustained a demurrer by the counties
without leave to amend, ruling that plaintiffs do not have
standing to contend the commissions are an unconstitutional tax,
and that the other causes of action fail as well.
       We agree with the trial court on all points and affirm the
judgment.
       FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiffs are inmates in jail facilities in nine counties and
their families. The nine counties are defendants. Each
defendant county has contracted with a telecommunications
company (these companies are not parties), giving the company
the exclusive right to establish an inmate calling system in the
respective county jails. The inmates must use that system, and
relatives who wish to speak with them must establish a prepaid
account with the telecommunications company. According to
plaintiffs, their families “are charged unreasonable, unjust and




                                  3
exorbitant rates” in order to maintain contact with county
inmates.
       In exchange for the exclusive right to provide telephone
service to inmates, the telecommunications company pays the
defendants a guaranteed fee against an identified percentage of
the inmate calling system charges. The rates charged to inmates
are far greater than those paid for ordinary telephone service.
The defendants’ share of the revenue collected from inmate calls
is referred to as a “site commission,” and in all cases is more than
50 percent of the revenue from inmate calls. Under a Los
Angeles County agreement with its service provider, for example,
the county is guaranteed the greater of $15 million annually or
67.5 percent of the revenues for specified charges described in the
contract.
       Plaintiffs filed this putative class action lawsuit “to put an
end to this unconscionable practice by California counties.”
Plaintiffs allege the telecommunications companies make a
substantial profit even after payment of the commissions; that
without the commissions, the charges would be substantially
lower; and the commissions are not based on the actual cost or
reasonable value of the inmate calling service. Plaintiffs allege
the full amount of the charges due to the counties is incurred by
the customers of the telecommunications company, and not by
the telecommunications company itself.
       Plaintiffs acknowledge defendants have complied with
Penal Code section 4025, which specifies that the commissions
described in plaintiffs’ complaint be deposited in an inmate
welfare fund. “There shall be deposited in the inmate welfare
fund any money, refund, rebate, or commission received from a
telephone company or pay telephone provider when the money,




                                  4
refund, rebate, or commission is attributable to the use of pay
telephones which are primarily used by inmates while
incarcerated.”1 (Pen. Code, § 4025, subd. (d).)
       Plaintiffs allege the commissions are actually an unlawful
tax in violation of the California Constitution. Because none of
the commissions was approved by voters, plaintiffs say they are
entitled to a refund of the illegal taxes.
       Plaintiffs say the jail population is disproportionately
composed of African-Americans and Latinos, as well as persons
with mental illnesses or substance abuse problems, compared to
the overall population of the respective counties. The telephone
charges that provide the source of the commissions received by
defendants, and consequently the commissions, have a disparate
impact on African-Americans and Latinos, in violation of
Government Code section 11135.
       Further, plaintiffs allege defendants have violated the Tom
Bane Civil Rights Act (Civ. Code, § 52.1, the Bane Act) because




1      Money deposited in the inmate welfare fund must be
expended “primarily for the benefit, education, and welfare of the
inmates confined within the jail.” (Pen. Code, § 4025, subd. (e).)
Any funds “not needed for the welfare of the inmates may be
expended for the maintenance of county jail facilities,” but “shall
not be used to pay required county expenses of confining inmates
in a local detention system . . . .” (Ibid.) Funds may also be
expended to provide indigent inmates with essential clothing and
transportation expenses prior to release from county jail. (Id.,
subd. (i).)




                                 5
the commissions unlawfully deprive plaintiffs of their rights
through intimidation, threat or coercion.2
      Defendants demurred to the complaint. As noted at the
outset, the trial court sustained the demurrer without leave to
amend.3 The court entered judgment on June 6, 2018, and
plaintiffs filed a timely notice of appeal.4

2     The complaint also alleged the commissions violate
plaintiffs’ rights of free speech and association, to due process of
law, to equal protection of the law, and to just compensation for a
public use. Plaintiffs do not pursue these claims on appeal.

3      The northern California counties filed a supplemental
demurrer to the complaint on grounds of res judicata, based on
an October 12, 2017 judgment in their favor and against
plaintiffs in a lawsuit in the federal district court. Our resolution
of the case eliminates any need to consider the parties’
arguments on this point.

4      During briefing, plaintiffs filed a motion for judicial notice
of 34 items, including orders by the Federal Communications
Commission, provider contracts, government records showing the
large size of county jails, and so on. Some documents were
presented to the trial court, some were not; many contain
information included in the complaint. We conclude they are not
necessary or helpful to our resolution of the issues and so deny
the motion. We also deny (1) a request by amici curiae California
State Association of Counties and League of California Cities for
judicial notice of contract materials (said to illustrate that the
structure for the contracts between the counties and the
telephone providers is commonplace across the state), and
(2) plaintiffs’ request for judicial notice of a contract sheet, in
response to amici (said to demonstrate amici’s contracts are not
comparable). These materials are not relevant to our disposition
of the case.



                                   6
                            DISCUSSION
       A demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action. For purposes of review,
we accept as true all material facts alleged in the complaint, but
not contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. When a
demurrer is sustained without leave to amend, “we decide
whether there is a reasonable possibility that the defect can be
cured by 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.” (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of
action. (Ibid.)
1.     Proposition 26 and the Standing Issue
       The trial court ruled, and we agree, that plaintiffs do not
have standing to contend the commissions are an
unconstitutional tax.
       All taxes imposed by any local government are subject to
voter approval. (Cal. Const., art. XIII C, § 2.) Proposition 26,
adopted in 2010, expanded the definition of a tax. A “tax” now
includes “any levy, charge, or exaction of any kind imposed by a
local government,” with seven exceptions.5 (Id., § 1, subd. (e).)


5      As relevant to plaintiffs’ complaint, these exceptions
include: “(1) A charge imposed for a specific benefit conferred or
privilege granted directly to the payor that is not provided to
those not charged, and which does not exceed the reasonable
costs to the local government of conferring the benefit or granting
the privilege. [¶] (2) A charge imposed for a specific government



                                 7
The local government has the burden of proving, among other
things, “that a levy, charge, or other exaction is not a tax . . . .”
(Id., § 1, subd. (e), final par.)
       The general rule is that a person may not sue to recover
excess taxes paid by someone else, “who pays the tax by design or
mistake.” (Grotenhuis v. County of Santa Barbara (2010)
182 Cal.App.4th 1158, 1165; id. at pp. 1164-1165 [the plaintiff
could not sue to recover excess property taxes paid by a
corporation of which he was the sole owner and from which he
leased the property; section 5140 of the Revenue and Taxation
Code allows only the person who paid the tax to bring a tax
refund action].) There may be unusual circumstances that
permit an exception to the general rule (as we discuss, post). But
we know of no case where a person who has not paid the tax to
the taxing authority, and who has no legal responsibility to do so,
has been found to have standing to seek a refund of the tax. We
find no merit in any of the arguments plaintiffs make in support
of a contrary conclusion.
       Plaintiffs proffer several contentions.
       First, plaintiffs say they “actually paid the illegal tax, not
the providers,” so “the ‘general rule’ requires that plaintiffs have
standing to obtain a refund.” Plaintiffs paid nothing to the
counties, and they had no legal responsibility to pay anything to

service or product provided directly to the payor that is not
provided to those not charged, and which does not exceed the
reasonable costs to the local government of providing the service
or product. [¶] . . . [¶] (4) A charge imposed for entrance to or
use of local government property, or the purchase, rental, or lease
of local government property. . . .” (Cal. Const., art. XIII C, § 1,
subd. (e).)




                                  8
the counties. Simply asserting that they effectively or indirectly
“paid the illegal tax” does not make it true. Plaintiffs may have
paid exorbitant charges to the telephone provider, but they did
not make any payment to the county and they had no legal
obligation to do so. Plaintiffs ask us in effect to find that a
customer, who pays higher prices because of a tax on a vendor
who raises prices in order to recover the amount of the tax from
the customer, has standing to seek a refund. No legal authority
supports that position.6
       Second, plaintiffs contend they have standing to seek a
refund of fees prohibited by Proposition 26 because their
litigation “effectuates the purpose of the statute and because they
have a beneficial interest in the outcome.” They cite the principle
that “[s]tanding rules for statutes must be viewed in light of the

6      Defendants cite several cases for the proposition that courts
have repeatedly rejected plaintiffs’ “ ‘indirect’ payment theory” of
standing. As the trial court pointed out, while these cases are not
inconsistent with our conclusion, they are not relevant to
plaintiffs’ assertions. All of them involve taxpayer standing
under Code of Civil Procedure section 526a, that is, taxpayer
standing to prevent “any illegal expenditure of, waste of, or injury
to, the estate, funds, or other property of a local agency.” (§ 526a,
subd. (a).) This is not such a case. (See, e.g., Torres v. City of
Yorba Linda (1993) 13 Cal.App.4th 1035, 1047-1048 [plaintiffs
who challenged the validity of a proposed redevelopment project
did not having standing to sue as taxpayers based on their
payment of a sales tax; while the price of goods was increased by
the amount of the tax, the tax was imposed on the retailer, not
the consumer]; see also Reynolds v. City of Calistoga (2014) 223
Cal.App.4th 865, 872-873 [taxpayer standing under section 526a
cannot be based on payment of sales tax because sales tax is
imposed on the retailer, not the consumer].)




                                 9
intent of the Legislature and the purpose of the enactment.”
(White v. Square, Inc. (2019) 7 Cal.5th 1019, 1024.) They say
that if we apply the rule that only the providers who directly pay
money to the defendants have standing, we “would both frustrate
the very reason the voters passed Proposition 26 and deprive the
only aggrieved parties from seeking redress.”
       We are not persuaded. We agree, of course, that
Proposition 26 “was an effort to close perceived loopholes in
Propositions 13 and 218.” (Schmeer v. County of Los Angeles
(2013) 213 Cal.App.4th 1310, 1322; id. at pp. 1313-1314
[concluding a paper carryout bag charge was not a tax under
Proposition 26 “because the charge is payable to and retained by
the retail store and is not remitted to the county”].) Schmeer
quotes in full the findings and declaration of purpose of
Proposition 26 as recited in its ballot materials. (Schmeer, at
pp. 1322-1323.) The findings clearly express the voters’ concern
with “disguis[ing] new taxes as ‘fees’ ” to avoid constitutional
voting requirements, and the voters’ intent to prevent the
Legislature and local governments from “circumvent[ing] these
restrictions on increasing taxes by simply defining new or
expanded taxes as ‘fees.’ ” (Voter Information Pamp., Gen. Elec.
(Nov. 2, 2010) text of Prop. 26, § 1, p. 114.)
       But nothing in Proposition 26, or anything plaintiffs have
cited, suggests that taxes under Proposition 26 are to be treated
differently from taxes under any other statute or constitutional
provision when a refund of those taxes is sought. Plaintiffs point
us to no cases under this or any other proposition where the
plaintiff challenging the charge is not a person who paid the tax
to the taxing authority or who was legally obligated to pay it.
The voters’ intent to prevent circumvention of voting




                                10
requirements on tax increases tells us nothing of any intent to
change the standard principles governing lawsuits challenging
those taxes.
       The cases plaintiffs cite to support a contrary conclusion do
not do so. We turn to those cases.
       Plaintiffs cite Jacks v. City of Santa Barbara (2017)
3 Cal.5th 248 (Jacks) for the proposition that we should liberally
construe Proposition 26 “ ‘to effectuate its purposes of limiting
local government revenue and enhancing taxpayer consent.’ ”
(Jacks, at p. 267, quoting Prop. 218.) But Jacks was not referring
to standing, and there was no issue of standing in the case. The
court stated that the proposition at issue in that case,
Proposition 218, should be liberally construed when “resolving
[the] issue” of “[w]hether a charge is a tax or a fee.” (Jacks, at
p. 267.) We do not disagree, but that has nothing to do with
standing to seek a refund. The same is true of the additional
authority the parties discussed at oral argument—Zolly v. City of
Oakland (2020) 47 Cal.App.5th 73[. The plaintiffs in Zolly
sought declaratory and injunctive relief, and there was no issue
of standing in the case.
       Plaintiffs cite Weatherford v. City of San Rafael (2017)
2 Cal.5th 1241 for the proposition that determining standing
requires “ascertain[ing] and effectuat[ing] the law’s intended
purpose.” (Id. at p. 1246.) But the court was construing a statute
on standing—Code of Civil Procedure section 526a—governing
who may maintain an action to prevent illegal expenditure or
waste of local agency funds or property. The question before the
court was what type of tax payments bestow standing on an
individual plaintiff to sue a local government. The court
determined that section 526a did not limit standing to




                                11
individuals who paid property taxes, but included anyone who
has paid or is liable to pay a tax directly to the defendant locality.
(Weatherford, at pp. 1251, 1252.) Weatherford does not assist
plaintiffs, because they did not pay a tax directly to any
government entity.
       Plaintiffs contend taxpayers have standing to sue the
taxing entity “if they are the ones who pay the tax or have a
stake in the outcome, unless a specific statutory refund procedure
is otherwise mandated by statute.” For this assertion, they cite
Ardon v. City of Los Angeles (2011) 52 Cal.4th 241. In Ardon, the
court held that “[c]lass claims for tax refunds against a local
governmental entity are permissible under [Government Code]
section 910 in the absence of a specific tax refund procedure set
forth in an applicable governing claims statute.” (Id. at p. 253.)
(Section 910 governs the presentation of claims against public
entities and was the relevant “governing claims statute.” (Ardon,
at p. 251.))
       Ardon does not help plaintiffs either. The question was
whether a class claim for refund of a telephone users tax was
permissible, or whether each member of the class had to file a
government claim with the city before a class action could
proceed. (Ardon, supra, 52 Cal.4th at pp. 245, 246, 250.) In
Ardon, the plaintiff taxpayers were legally obligated to pay the
tax. That is not the case here.
       Next, plaintiffs cite TracFone Wireless, Inc. v. County of Los
Angeles (2008) 163 Cal.App.4th 1359 (TracFone). There, the
plaintiff was a long-distance service provider that sold prepaid
telephone calling cards to retailers who resold them to the
ultimate consumers. The plaintiff paid the county’s user tax,
amounting to 5 percent of the value of calls made with the cards




                                 12
in the county, from its own funds. The plaintiff did not collect the
tax from the consumers who were responsible for its payment,
because it had no point of contact with the ultimate consumer
and was unable to do so. For reasons unnecessary to recite, it
turned out that cards of the type the plaintiff sold were tax
exempt, so the plaintiff sought a refund. (Id. at pp. 1361-1362.)
The trial court found that although the plaintiff was required to
collect the taxes, it was not a “taxpayer” and thus lacked
standing to seek a refund. (Id. at p. 1364.) The appellate court
rejected as “outdated” the notion that a party has no standing to
challenge a tax unless it is the denominated “taxpayer” under the
statutory scheme imposing the tax. (Ibid.) The court held that
the plaintiff had standing to seek a refund of taxes paid from its
own funds. (Id. at p. 1366.)
       Plaintiffs liken themselves to the plaintiff in TracFone,
saying they “are the ones who actually pay the money ‘from
[their] own funds.’ ” But they are not like the TracFone plaintiff,
who was required by the user tax scheme to collect the taxes, and
who paid the taxes from its own funds directly to the taxing
authority, believing the county would hold it liable for the tax.
(TracFone, supra, 163 Cal.App.4th at p. 1362.) We see no
comparable circumstances here.
       Plaintiffs also cite Delta Air Lines, Inc. v. State Board of
Equalization (1989) 214 Cal.App.3d 518, where the court found
Delta had standing to seek a refund of fuel taxes it paid to the
Board. Explaining the factual background would unduly
lengthen this opinion. Suffice it to say that the fuel vendor was
the taxpayer; some parts of Delta’s fuel purchases were tax
exempt, and the vendor paid taxes pursuant to Delta’s estimates
of the taxable portion of its fuel purchase; a regulatory change




                                13
occurred requiring actual rather than estimated fuel consumption
computations; the Board audited Delta and assessed additional
taxes. Delta paid the assessment, but sought a redetermination
for a nine-month period during which the auditors assessed Delta
for underpayments but refused to allow an offset for
overpayments. (Id. at pp. 520-524.)
       The court rejected the Board’s contention that Delta had no
standing to sue for a refund under the circumstances presented,
pointing out that the law “regards common carriers such as Delta
as retailers as well as purchasers, for the purpose of computing
the parameters of [its] exemption,” and the Board audits Delta to
ensure the exemption is used properly. (Delta, supra, 214
Cal.App.3d at p. 528.) In a dispute over the audit procedure, “it
would be irrational to hold that Delta has no standing to contest
a determination of substantial funds due for which Delta was
legally responsible. To hold otherwise might permit unjust
enrichment of the Board. Delta is clearly the real party in
interest here, has paid the disputed tax due (which concededly
could not have been collected from Delta’s vendors), and has
standing to pursue the action for refund.” (Ibid.) Again,
plaintiffs’ position with respect to the disputed charges is in no
way comparable to Delta’s position. Plaintiffs have not paid a tax
directly to a taxing authority.
       Next, plaintiffs tell us that cases involving standing to seek
a refund of sales taxes are inapplicable. This, they say, is
because the sales tax cases are based on a comprehensive and
complex statutory scheme that defines the taxpayer as the
retailer, and provides an administrative scheme for seeking a
refund, unlike challenges under Proposition 26. They refer us to
Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, where the court




                                 14
held that consumers could not maintain a class action against a
retailer (disputing the taxability of purchases of hot coffee “to go”)
under the unfair competition law and the Consumer Legal
Remedies Act. It seems to us that, to the extent Loeffler is
pertinent, it supports our determination that plaintiffs lack
standing.
       As the trial court pointed out, Loeffler demonstrates why
the law thus far has not recognized standing for consumers who
pay higher prices because of a tax on a vendor who recovers the
tax by raising prices. Loeffler states: “As a practical matter, if
we did not view the tax code as providing the exclusive procedure
under which a claim such as plaintiffs’ may be resolved,
independent consumer claims against retailers for restitution of
reimbursement charges on nontaxable sales could form a huge
volume of litigation over all the fine points of tax law as applied
to millions of daily commercial transactions in this state.”
(Loeffler, supra, 58 Cal.4th at p. 1130.) A similar effect is likely if
any consumer who pays prices influenced by taxes that affect the
seller’s cost of doing business has standing to sue the taxing
authority.
       Plaintiffs assert Loeffler “make[s] clear” that where an
improper tax is collected by an intermediary, “an adequate
remedy must be provided to ensure the aggrieved
customer/taxpayer has a means to obtain a refund.” That is not
the import of Loeffler. Plaintiffs are referring to Loeffler’s
description of another case—Javor v. State Board of Equalization
(1974) 12 Cal.3d 790 (Javor)—where the Board of Equalization
had already instructed retailers they were entitled to a refund of
mistakenly paid excess sales tax, provided they returned the
refund to the customer. (Loeffler, supra, 58 Cal.4th at p. 1115.)




                                  15
Under the “unique circumstances” in Javor (Javor, at p. 802),
where the retailer had no particular incentive to request the
refund (id. at p. 801), and the Board was “very likely to become
enriched at the expense of the customer” (id. at p. 802), Javor
stated that “we . . . must fashion an appropriate remedy to effect
the customers’ right to their refund which is consonant with
existing statutory procedures” (id. at p. 800).
      The remedy in Javor was not a suit against the taxing
authority for a refund. Indeed, the Javor court indicated it would
not be consonant with the tax code or judicial precedent “to
fashion a remedy that would give consumers a cause of action
against the Board for the excess amounts the retailer had paid in
taxes.” (Loeffler, supra, 58 Cal.4th at p. 1114, citing Javor,
supra, 12 Cal.3d at p. 800.) As Loeffler puts it, “we have
permitted consumer intervention into the sales tax scheme in
limited circumstances and only by means of a judicial proceeding
to compel the retailer/taxpayer to seek a refund from the Board.”
(Loeffler, at p. 1101, citing Javor.)7

7      Javor stated: “We hold that under the unique
circumstances of this case a customer, who has erroneously paid
an excessive sales tax reimbursement to his retailer who has in
turn paid this money to the Board, may join the Board as a party
to his suit for recovery against the retailer in order to require the
Board in response to the refund application from the retailers to
pay the refund owed the retailers into court or provide proof to
the court that the retailer had already claimed and received a
refund from the Board. We think that allowing the Board to be
joined as a party for these purposes in the customer’s action
against the retailer is an appropriate remedy entirely consonant
with the statutory procedures providing for a customer’s recovery
of erroneously overpaid sales tax.” (Javor, supra, 12 Cal.3d at
p. 802, fn. omitted.)



                                  16
       We do not agree with plaintiffs that, because the counties
are unjustly enriched by their contracts with the
telecommunications companies, we should provide inmates a
remedy for the exorbitant telephone charges they must pay. It is
the legislative branch, not the courts, that must provide that
remedy. As the trial court observed, “[t]he political branches
have not shown themselves to be deaf to arguments against fees
that fall primarily on those least able to pay.” (Cf. McClain v.
Sav-On Drugs (2017) 9 Cal.App.5th 684, 706 [“our Constitution
chiefly assigns the task of creating tax refund remedies to our
Legislature, and our Legislature has yet to address the situation
that arises when the legal taxpayer has no incentive to seek a
direct refund and the economic taxpayer has no right to do so. It
is a topic worthy of legislative consideration.”], affd. (2019)
6 Cal.5th 951, 955 [customers who paid sales tax reimbursement
on purchases they believed to be exempt from sales tax may not
file suit to compel the retailers to seek a tax refund when there
has been no determination that the purchases are tax exempt].)
       Finally, plaintiffs contend that if they lack standing, they
have no meaningful opportunity for review in violation of due
process. They cite TracFone, supra, 163 Cal.App.4th at pages
1365-1366, and McKesson Corp. v. Florida Alcohol & Tobacco
Div. (1990) 496 U.S. 18. This due process claim (which was made
below only by way of a two-sentence footnote) is again premised
on the assertion that “they actually paid the tax.” It ignores the
fact that plaintiffs did not pay anything to the taxing authority
and had no legal responsibility to do so. As TracFone states, it is
because “California requires payment of a tax prior to challenging
it” that the right to due process requires some procedure for
meaningful review. (TracFone, at pp. 1365-1366.) In TracFone,




                                17
the plaintiff was required to collect the taxes and paid them from
its own funds to the taxing authority. That is not the case here.
       McKesson does not help plaintiffs either. In that case, the
plaintiff had paid excise taxes to the state of Florida that had
been found to be unconstitutional. Under those circumstances,
due process required the state “to afford taxpayers a meaningful
opportunity to secure postpayment relief for taxes already paid
pursuant to a tax scheme ultimately found unconstitutional.”
(McKesson, supra, 496 U.S. at p. 22; cf. McClain, supra, 6 Cal.5th
at p. 961 [“we do not agree with plaintiffs that the unavailability
of a judicially created refund remedy in this case violates due
process of law”].)
       In the end, the pertinent point is that no precedents
support plaintiffs’ claim that a consumer who pays charges to a
third party vendor—including one that has inflated its prices to
recover the cost of a tax it pays to a local government—has
standing to seek a refund of those charges from the taxing
authority. As we have said, we see no basis for treating
purported Proposition 26 taxes, for standing purposes, differently
than sales taxes, or property taxes, or telephone user taxes, or
airplane fuel taxes, or any other taxes. The change that
Proposition 26 effected was an expansion in the definition of a
tax—not an expansion in long-established principles governing
who may sue for a refund of that tax. That continues to be the
person upon whom the tax is imposed by the taxing authority or
who has a legal obligation to pay it to the taxing authority. That
is not the plaintiffs.
       Because we conclude the trial court correctly found
plaintiffs have no standing to bring a claim under Proposition 26,




                                18
we refrain from addressing the merits of their claim that the
telephone charges are a tax in violation of Proposition 26.
2.    Government Code Section 11135
      Government Code section 11135 prohibits the denial of full
and equal access to the benefits of, or discrimination under, any
program or activity that is conducted by, or is funded directly by,
or receives any financial assistance from, the state.8
       Plaintiffs allege inmates and their families were
disproportionately African-American and Latino, compared to the
overall population of the respective county defendants, and also
that they disproportionately suffer from mental illness and drug
addiction. Each defendant receives “a significant amount of
money from the State of California” that “goes to fund various
activities of the Defendant Counties, including their county jails
and the jails’ inmate calling systems.” Plaintiffs allege there was
no justification for the imposition of the inmate calling system
charges, and “in any event, they can be replaced by an equally
effective but less discriminatory alternative (e.g., a reasonable
fee, or a general tax or fee) not aimed specifically at the
disproportionately African-American and Latino population that


8       “No person in the State of California shall, on the basis of
sex, race, color, religion, ancestry, national origin, ethnic group
identification, age, mental disability, physical disability, medical
condition, genetic information, marital status, or sexual
orientation, be unlawfully denied full and equal access to the
benefits of, or be unlawfully subjected to discrimination under,
any program or activity that is conducted, operated, or
administered by the state or by any state agency, is funded
directly by the state, or receives any financial assistance from the
state. . . .” (Gov. Code, § 11135, subd. (a).)




                                 19
currently pays the [inmate calling system] charges out of which
the Defendant Counties receive the lion’s share.”
       The trial court concluded plaintiffs did not state a claim,
because they did not allege African-American or Latino inmates
and their families are treated differently from inmates and their
families who are not members of those groups. The court did not
err.
       “ ‘The basis for a successful disparate impact claim involves
a comparison between two groups — those affected and those
unaffected by the facially neutral policy.’ ” (Darensburg v.
Metropolitan Transportation Commn. (9th Cir. 2011) 636 F.3d
511, 519-520 (Darensburg).) “[W]e must analyze the impact of
the plan on minorities in the population base ‘affected . . . by the
facially neutral policy.’ ” (Id. at p. 520.) “ ‘[T]he appropriate
inquiry is into the impact on the total group to which a policy or
decision applies.’ ” (Ibid., quoting Hallmark Developers, Inc. v.
Fulton County (11th Cir. 2006) 466 F.3d 1276, 1286.)
       The “total group” to whom defendants provide telephone
service by means of their contracts with providers is the inmate
population; defendants do not provide telephone service to any
other group. Consequently, the only appropriate inquiry is an
analysis of the impact on minorities “in the population base
‘affected’ ” (Darensburg, supra, 636 F.3d at p. 520), and that is
the inmate population. There is no other relevant group. And
African-American and Latino inmates are treated exactly the
same as any other inmates.
       Plaintiffs insist that the comparator group “is the general
population, which accesses telephone usage without having to
pay an illegal tax.” The general population is the comparator
group, they say, “because the cost of the inmate telephone calls,




                                 20
and the exorbitant commissions, is borne by the inmates’ non-
custodial family and friends, who otherwise enjoy normal phone
charges.” We find this argument difficult to comprehend, but in
any event plaintiffs do not support it with any legal authority.
No matter who bears the cost, inmates or their families and
friends, it remains the case that the complaint does not allege
defendant counties provide telephone service to the general
population, and consequently the general population of telephone
users cannot be the appropriate “comparator group.”
       Moreover, as the trial court pointed out, the Legislature
established a basis for treating inmate families differently from
other taxpayers in Penal Code section 4025. Section 4025 clearly
reflects a legislative decision to allow county jails to collect
commissions on telephone calls to and from inmates, to be
deposited in an inmate welfare fund. (Id., subd. (d).) Plaintiffs
allege no basis to conclude the Legislature’s determination to
permit such commissions and direct their use is not an adequate
rationale for treating plaintiffs differently from other taxpayers.
       In short, the complaint does not state a claim for
discrimination on the basis of race or any other protected
category in connection with the telephone charges inmates pay to
use the inmate calling system.
3.     The Bane Act
       Under the Bane Act, if a person interferes “by threat,
intimidation, or coercion,” or attempts to do so, with any
individual’s exercise or enjoyment of rights secured by the
Constitutions or laws of the United States or California, the
individual may bring a civil action for damages and other relief.
(Civ. Code, § 52.1, subds. (b) & (c).) The court may award the
plaintiff reasonable attorney fees. (Id., subd. (i).)




                                21
     Plaintiffs contend defendants violated their families’ rights
under the Bane Act “by ‘interfer[ing] by . . . coercion’ with their
rights under Proposition 26.”9 They say they are “forced into the
coercive choice of using the telephone despite unlawful,
exorbitant and discriminatory charges or foregoing telephonic
communications.”10
      We find no support in any authorities under the Bane Act
for the proposition that a choice between paying an exorbitant
telephone charge or foregoing telephone communication
constitutes the “threat, intimidation, or coercion” required to
establish a Bane Act violation. This is so under either of the
analyses courts have applied, in the context of Fourth
Amendment violations, to determine whether coercion has been
shown, as discussed below. And, entirely aside from those
analyses, we do not think the imposition of a tax, however
exorbitant, may constitute coercion within the meaning of the
Bane Act.
      a.    Shoyoye
      The first theory of coercion is that a violation of the Bane
Act requires a showing of coercion independent from the coercion


9    In their opposition in the trial court, plaintiffs limited their
Bane Act claim to the families and friends of inmates.
Defendants tell us this is because of statutory provisions
governing public entity liability for injuries to prisoners, citing
Government Code section 844.6.

10    Plaintiffs also claim interference by coercion with their
rights under Government Code sections 11135 and 50030. Our
analysis of coercion under the Bane Act would be no different as
applied to a claimed violation of sections 11135 and 50030.




                                 22
inherent in the constitutional violation itself. (Shoyoye v. County
of Los Angeles (2012) 203 Cal.App.4th 947, 959 (Shoyoye).)
       Shoyoye was a wrongful detention case (a prisoner’s
overdetention based on computer error). Shoyoye concluded the
Bane Act was intended to address interference with
constitutional rights “involving more egregious conduct than
mere negligence.” (Shoyoye, supra, 203 Cal.App.4th at p. 958.)
The court went on to say that violation of the Bane Act requires a
showing of coercion “independent from the coercion inherent in
the wrongful detention itself.” (Shoyoye, at p. 959.)
       Plaintiffs have not alleged coercion other than the required
payment of the telephone charges. Other than payment of the
exorbitant charges, there is no tax and no coercion. Under the
Shoyoye analysis, plaintiffs’ claim fails.
       b.    Cornell
       The second analysis appears in Cornell v. City and County
of San Francisco (2017) 17 Cal.App.5th 766 (Cornell). Cornell
held that, “where an unlawful arrest is properly pleaded and
proved, the ‘threat, intimidation or coercion’ element of
section 52.1 . . . requires a specific intent to violate protected
rights.” (Id. at p. 799; ibid. [“we do not accept the premise that
Shoyoye applies in unlawful arrest cases”].) The plaintiff showed
subjective spite; the arresting officers were unconcerned from the
outset whether there was legal cause to detain or arrest the
plaintiff, and “when they realized their error, they doubled-down
on it, knowing they were inflicting grievous injury on their
prisoner.” (Id. at p. 804.)
       The specific intent test requires a legal determination
whether the right at issue is “ ‘ “clearly delineated and plainly
applicable under the circumstances of the case,” ’ ” and a factual




                                23
determination whether the defendant committed the act in
question “ ‘ “with the particular purpose of depriving the citizen
victim of his enjoyment of the interests protected by that . . .
right.” ’ ” (Cornell, supra, 17 Cal.App.5th at p. 803.) Cornell
found “[l]egally, . . . nothing vague or novel” about the plaintiff’s
claim of the right to be free from arrest without probable cause
“under the circumstances of this case.” (Ibid.)
       Plaintiffs’ allegations of coercion do not meet Cornell’s
specific intent test. Plaintiffs do not claim a clearly delineated
and plainly applicable right in this case, and therefore they
cannot show defendants acted with the particular purpose of
depriving plaintiffs of any such right.
       Plaintiffs say their right under Proposition 26 is clearly
delineated and plainly applicable, because “the commissions
unquestionably exceed reasonable cost.” That does not establish
the existence of an unlawful tax under Proposition 26, as the
parties’ respective arguments on the merits of that issue clearly
show. And without a clearly delineated and plainly applicable
right under the circumstances of the case, plaintiffs cannot
demonstrate the necessary specific intent to deprive them of that
right.
       There is no legal authority on the question whether a site
commission, paid under contracts between telephone providers
and defendant counties, is a tax, and we do not decide that
question either. Plaintiffs’ alleged right to a refund of inmate
telephone service charges is neither “clearly delineated” nor
“plainly applicable.” Consequently, defendants cannot have had
the requisite specific intent to violate plaintiffs’ Proposition 26
rights when they entered into the contracts with the telephone
providers. Plaintiffs’ allegation that the facts establish an illegal




                                 24
tax and that defendants “acted with the purpose of charging
excessive fees far beyond reasonable cost” is not enough under
Cornell. (See also Julian v. Mission Community Hospital (2017)
11 Cal.App.5th 360, 395 (Julian) [conclusory allegations of
coercive interference with constitutional rights “ ‘are inadequate
to state a cause of action for a violation of section 52.1’ ”].)
       c.    A final note
       Plaintiffs cannot establish coercion under either Shoyoye or
Cornell. But even apart from those analyses, we find ourselves in
agreement with the trial court’s alternative ground of decision—
that the allegations of the complaint in any event “do not
establish coercion of the sort contemplated by [the Bane Act].”
       We construe statutory language in context, not in the
abstract. “The Legislature enacted section 52.1 to stem a tide of
hate crimes. [Citation.] The statutory language fulfills that
purpose by providing remedies for certain misconduct that
interferes with” any rights secured by federal or California law.
(Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 (Jones).) “[A]s
long as interference or attempted interference with [legal rights]
is accompanied by threats, intimidation, or coercion, section 52.1
provides remedies for that misconduct.” (Ibid.)
       The Legislature’s purpose suggests to us that the coercive
nature of a tax—however exorbitant or unfair that tax may be—
was not what the Legislature had in mind when it forbade
interference with legal rights by “threat, intimidation, or
coercion.” Plaintiffs have cited no case where economic or
monetary pressures alone have been found to constitute coercion
under the Bane Act.
       Plaintiffs quote a dictionary definition of coercion (“to
compel to an act or choice by force, threat, or other pressure”),




                                25
citing a decision construing fair housing statutes. (Walker v. City
of Lakewood (9th Cir. 2001) 272 F.3d 1114, 1129.) They also cite
Koontz v. St. Johns River Water Management Dist. (2013)
570 U.S. 595, 604-605 (discussing coercion under the
unconstitutional conditions doctrine). These cases are simply
inapt to the issue at hand. The question here is the meaning of
coercion under a statute enacted with hate crimes in mind.
(Jones, supra, 17 Cal.4th at p. 338; see also Julian, supra,
11 Cal.App.5th at p. 395 [“ ‘[T]he statute was intended to address
only egregious interferences with constitutional rights, not just
any tort. The act of interference with a constitutional right must
itself be deliberate or spiteful.’ ”]; Cornell, supra, 17 Cal.App.5th
at p. 800 [coercion element “serves as an aggravator justifying
the conclusion that the underlying violation of rights is
sufficiently egregious to warrant enhanced statutory remedies”];
ibid. [describing the required “threat, intimidation or coercion” as
“this element of fear-inducing conduct”].) Requiring payment of
an allegedly illegal tax does not fall within the universe of
egregious interference with constitutional rights as contemplated
by the Bane Act and described in the cases.
       At the end of their brief, plaintiffs tell us that if their
pleading of coercion was deficient, they were entitled to “an
opportunity to expand on each of their Proposition 26,
Government Code sections 50030 and 11135 claims and why they
met the requirements of [the Bane Act].” But they do not explain
what more they could allege that would bring their claims within
any of those provisions.




                                 26
                        DISPOSITION
      The judgment is affirmed. Defendants shall recover their
costs on appeal.

                              GRIMES, J.*

      WE CONCUR:

                        ROTHSCHILD, P. J.



                        BENDIX, J.




*      Justice of the Court of Appeal, Second Appellate District,
Division Eight, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.



                                27
