Filed 5/22/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


CHERRITY WHEATHERFORD,
        Plaintiff and Appellant,
                                                   A138949
v.
CITY OF SAN RAFAEL et al.,                         (Marin County
                                                   Super. Ct. No. CIV1300112)
        Defendants and Respondents.

        Plaintiff Cherrity Wheatherford filed a complaint challenging the enforcement
practices of defendants the City of San Rafael and the County of Marin with respect to
the impoundment of vehicles. She claimed she had standing to bring the action as a
resident taxpayer. However, she conceded that she had not paid any property taxes. The
trial court entered a stipulated judgment of dismissal. We agree with existing appellate
decisions that hold payment of an assessed property tax is required in order for a party to
have standing to pursue a taxpayer action. Accordingly, we affirm the judgment.
                FACTUAL BACKGROUND AND PROCEDURAL HISTORY
        On January 9, 2013, plaintiff filed a complaint for declaratory and injunctive
relief. In the complaint, she alleged she had taxpayer standing under Code of Civil
Procedure section 526a (section 526a) because she had paid sales tax, gasoline tax, and
water and sewage fees in the City of San Rafael and the County of Marin. She admitted
she had not paid property taxes, but asserted she nevertheless had standing under Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069 (Tobe). The complaint challenges the
defendants’ policies and practices related to the impoundment of vehicles under Vehicle
Code section 14602.6. 1
       On April 22, 2013, the trial court filed a stipulated order and judgment of
dismissal. In the order, plaintiff admitted appellate courts have twice held that payment
of property taxes is required for taxpayer standing under section 526a. (See Torres v.
City of Yorba Linda (1993) 13 Cal.App.4th 1035 (Torres); Cornelius v. Los Angeles
County etc. Authority (1996) 49 Cal.App.4th 1761 (Cornelius).) She also conceded her
argument that the property tax requirement is an unconstitutional wealth-based
classification is precluded under Torres, supra, 13 Cal.App.4th 1035, 1048, fn. 7. She
now challenges Cornelius and Torres in this appeal.
                                       DISCUSSION
I. Standard of Review
       Interpretation of a statute presents questions of law for the court to decide, and is
reviewed de novo. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794;
Fredenburg v. City of Fremont (2004) 119 Cal.App.4th 408, 419; Evid. Code, § 310,
subd. (a).) Plaintiff raises issues regarding the interpretation and application of section
526a and whether it may be read in a manner to afford her taxpayer standing. The de
novo standard of review, therefore, applies in this case.
II. Taxpayer Standing Under Section 526a
       Section 526a provides, in relevant part: “An action to obtain a judgment,
restraining and preventing any illegal expenditure of, waste of, or injury to, the estate,


1
  Vehicle Code section 14602.6, subdivision (a)(1) provides, in part: “Whenever a peace
officer determines that a person was driving a vehicle while his or her driving privilege
was suspended or revoked, driving a vehicle while his or her driving privilege is
restricted pursuant to Section 13352 or 23575 and the vehicle is not equipped with a
functioning, certified interlock device, or driving a vehicle without ever having been
issued a driver’s license, the peace officer may either immediately arrest that person and
cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic
collision, cause the removal and seizure of the vehicle without the necessity of arresting
the person . . . . A vehicle so impounded shall be impounded for 30 days.”


                                              2
funds, or other property of a county, town, city or city and county of the state, may be
maintained against any officer thereof, or any agent, or other person, acting in its behalf,
either by a citizen resident therein . . . who is assessed for and is liable to pay, or, within
one year before the commencement of the action, has paid, a tax therein.” (Italics
added.) The fundamental purpose of this statute is to “ ‘enable a large body of the
citizenry to challenge governmental action which would otherwise go unchallenged in the
courts because of the standing requirement.’ ” (Blair v. Pitchess (1971) 5 Cal.3d 258,
267-268 (Blair).)
       In Torres, supra, the Fourth District Court of Appeal held that proof of payment of
real property tax is required by section 526a; payment of sales tax will not suffice. (13
Cal.App.4th 1035, 1046-1047.) The plaintiffs in Torres had filed a taxpayer action
challenging the validity of a proposed redevelopment project by the City of Yorba Linda.
The plaintiffs did not reside or own real property in that city. Rather, the complaint
alleged both plaintiffs currently lived in Anaheim, but were interested in moving to
Yorba Linda if they could find decent, safe, sanitary and affordable housing. Each
plaintiff paid a sales tax to the City of Yorba Linda within one year before filing the
action. (Id. at p. 1039.) In rejecting the plaintiffs’ claim of taxpayer standing, the
appellate court looked to the language of section 526a granting standing to one “who is
assessed for and is liable to pay, or within one year before the commencement of the
action, has paid, a tax therein.” The court read this language as requiring proof of
payment of an assessed tax. The court found the nonresident plaintiffs lacked standing
because they had paid only sales tax, which is technically assessed against the retailer,
not the consumer, though as a practical matter the retailer simply passes the sales tax on
to the consumer, who pays it at the time of purchase. (Id. at pp. 1047-1048.)2



2
 Division Five of this appellate district recently endorsed the holding of Torres in
Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 872-873.


                                               3
         Two years later, our Supreme Court decided Tobe, supra, holding, in part, that two
taxpayer plaintiffs who were homeless—and thus necessarily did not pay real property
taxes—had taxpayer standing under section 526a. (9 Cal.4th 1069, 1086.) In Tobe, the
plaintiffs, some of whom were homeless, brought an action to bar the enforcement of a
Santa Ana ordinance that banned camping and storage of personal effects in public areas
throughout the city. (Id. at pp. 1081-1082.) In the course of reaching its decision, the
Court held that regardless of whether the plaintiffs had a beneficial interest in the writ
action, they did have standing to bring the petition as section 526a taxpayers. (Id. at p.
1086.) There is no indication, however, that the Court considered the issue of what taxes
plaintiffs had paid to enjoy this standing.3 The main focus of the case was geared toward
separate constitutional concerns. As plaintiff acknowledges, cases are not precedent for
issues not considered and decided. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552,
565.)4
         One year after Tobe was decided, the Second District Court of Appeal cited Torres
as stating the correct rule and held that proof of payment of real property tax is required
by section 526a; payment of sales, gasoline, and income taxes will not suffice.
(Cornelius, supra, 49 Cal.App.4th 1761 at pp. 1777-1776.) In Cornelius, a nonresident
plaintiff brought suit against the Los Angeles County Metropolitan Transportation
Authority (MTA) challenging an affirmative action program it had implemented as a
required condition of receiving federal funds. The plaintiff did not reside in the county of


3
  Similarly, in Arrieta v. Mahon (1982) 31 Cal.3d 381, plaintiffs were a group of tenants
who brought a section 526a taxpayer’s action to challenge the county marshal’s policy of
evicting all occupants when enforcing a writ of execution after an unlawful detainer
judgment, regardless of whether the occupants were actually named in the writ. (Id. at p.
385.) The Court concluded the plaintiffs had standing to bring the suit under section
526a. (Id. at p. 387.) However, as in Tobe, the Court did not discuss the issue of what
specific taxes plaintiffs had paid that served to grant them standing.
4
  Plaintiff’s opening brief discusses many other cases that suffer from this same flaw. We
need not address them here.



                                              4
Los Angeles or own real property therein. Rather, he worked for a company in
Hollywood that had allegedly lost out on a bid in that county due to an affirmative action
program. (Id. at pp. 1765, 1774.) He claimed he had the right to sue based on his
payment of sales and gasoline taxes within the county, as well as his payment of income
taxes to the state. (Id. at p. 1774.) In rejecting the claim of taxpayer standing, the
appellate court first found that real property taxes are assessed on the property owner
directly and therefore satisfy the language of section 526a. As the plaintiff had not paid
real property taxes, he could not claim taxpayer standing on that basis. (Id. at pp. 1775-
1776.) Cornelius does not mention the Tobe opinion.
       Below, the parties agreed that under the rule of stare decisis, the trial court here
was constrained to follow Cornelius because it squarely addresses the issue of property
tax payment and it post-dates the Supreme Court’s decision in Tobe. On appeal, plaintiff
asks us to reject Cornelius and Torres in favor of Tobe and other cases that have,
according to her, construed section 526a broadly “to achieve its remedial purpose.” She
asks us to hold that payment of any form of tax suffices for standing under section 526a.
III. Plaintiff Lacks Standing
       A. Plain Language of Section 526a
       Plaintiff claims the plain language of section 526a reveals that payment of any tax
is sufficient to confer taxpayer standing, including payment of fees for services such as
water and sewage.5 As noted above, that section allows a “citizen resident” to bring a
lawsuit if the individual “is assessed for and is liable to pay, or, within one year before
the commencement of the action, has paid, a tax therein. . . .” Plaintiff first claims the
statute is written in the disjunctive, asserting the word “or” separates persons who have
been assessed for and are liable to pay a tax from those who have merely “paid a tax” in

5
 Fees and taxes are not the same. (See Northwest Energetic Services, LLC v. California
Franchise Tax Board (2008) 159 Cal.App.4th 841, 854 [fees, unlike taxes, are not
compulsory and are intended to compensate for services or benefits provided by the
government].)


                                              5
the relevant jurisdiction. As to the latter class of taxpayers, she asserts an assessment is
not required. While she claims the “overall meaning” of the statute “is made difficult by
the manner in which the words are parsed and separated by commas,” in reality it is her
own interpretation that is strained. Plainly, the word “or” is intended to provide an
alternative to the clause “is liable to pay.” Thus, the statute gives standing to two classes
of persons who have been assessed for taxes: (1) those who are liable to pay an assessed
tax but who have not yet paid, and (2) those who paid an assessed tax within one year
before the filing of the lawsuit. Unlike plaintiff, we see nothing in this interpretation that
would lead to any “absurd results.”
       B. Legislative Intent
       Plaintiff asserts legislative intent supports her broad interpretation of section 526a.
The statute was enacted in 1909, and plaintiff does not direct our attention to any actual
legislative history. Instead, she points to appellate decisions that have described the
statute as providing “a general citizen remedy for controlling illegal governmental
activity” (White v. Davis (1975) 13 Cal.3d 757, 763), designed to “enable a large body of
the citizenry to challenge governmental action” (Blair, supra, 5 Cal.3d 258, 267-268) and
providing a broad basis of relief. (See Van Atta v. Scott (1980) 27 Cal.3d 424, 447-448.)
       Courts need not rely on legislative intent when a statute is clear on its face. (Greb
v. Diamond Internat. Corp. (2013) 56 Cal.4th 243, 256.) In any event, plaintiff’s
contentions are not persuasive. Her argument is based on her view that the “legislative
intent of section 526a would be undermined if the statute is interpreted to afford standing
only to a select sub-group of the most wealthy Californians who are fortunate enough to
own real property in this state and pay taxes thereon.” 6 While it is true that persons with

6
  Standing under section 526a is not limited to real property owners. (See Santa Barbara
County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of
Governments (2008) 167 Cal.App.4th 1229, 1236, holding that a retailer that paid sales
taxes in the jurisdiction sufficiently established standing under section 526a because it
“established liability to pay a tax assessed by Santa Barbara County.” Here, defendants
note section 526a applies to individuals and business owners on whom a governmental

                                              6
limited financial resources will find it difficult to purchase homes in today’s market, it
does not follow that home ownership correlates with an individual’s wealth. Many
wealthy people do not own homes, preferring instead to rent. Additionally, it is not a
given that all lower income people are renters, as they may have purchased a home many
years ago when their incomes were higher or may have inherited their homes from family
members. Thus, plaintiff’s premise is flawed.
       C. Constitutionality
       Plaintiff uses a similar argument to suggest section 526a violates principles of
equal protection. She asserts an interpretation of the statute that requires a litigant to
have paid assessed property taxes in order to have standing to sue creates a “wealth-based
classification,” thereby raising constitutional concerns subject to strict scrutiny. Again,
the correlation between wealth and home ownership is not as clear as plaintiff suggests.
Further, as she acknowledges, the equal protection argument was rejected by the court of
appeal in Torres. In Torres, the appellate court stated in a footnote: “Plaintiffs also claim
that denying standing to them under [section] 526a violates their constitutional right to
equal protection of the law. The argument is without merit. The case law clearly
establishes plaintiffs are not similarly situated with others determined to have standing
under these circumstances.” (Torres, supra, 13 Cal.App.4th at p. 1048, fn. 7.) Here,
plaintiff asserts she is similarly situated to other taxpayers who pay all of the same taxes
as she does, but who also happen to pay property taxes. For purposes of this appeal, we
assume, without deciding, that plaintiff is similarly situated to taxpayers who have been
accorded standing under section 526a.
       The equal protection clause “ ‘compel[s] recognition of the proposition that
persons similarly situated with respect to the legitimate purpose of the law receive like
treatment.’ ” (Darces v. Woods (1984) 35 Cal.3d 871, 885.) A state cannot “deny to any

entity directly assesses a tax. Such individuals would include, but would not necessarily
consist solely of, real property owners.


                                               7
person within its jurisdiction the equal protection of the laws” under the Fourteenth
Amendment of the federal Constitution. (U.S. Const., 14th Amend., § 1.) Similarly, the
state Constitution provides that a person may not be “denied equal protection of the
laws.” (Cal. Const., art. I, § 7.)
       Plaintiff argues that a strict scrutiny constitutional analysis applies. We disagree.
“Classifications that disadvantage a ‘suspect class’ or impinge upon the exercise of a
‘fundamental right’ are subject to strict scrutiny; this requires the state to demonstrate
that its classification ‘has been precisely tailored to serve a compelling governmental
interest.’ [Citations.]” (Jensen v. Franchise Tax Bd. (2009) 178 Cal.App.4th 426, 434,
fn. omitted (Jensen).) To the extent plaintiff claims section 526a creates a distinction
based on wealth, we note courts have held that classifications based on wealth do not
merit strict scrutiny. In Jensen, the court of appeal stated: “Suspect classifications
include race, gender, national origin, and alienage. Wealth generally confers benefits,
and does not require the special protections afforded to suspect classes.” (178
Cal.App.4th 426 at p. 434 [wealthy taxpayers unsuccessfully maintained wealth is a
suspect classification and the tax imposed by Proposition 63 affects only “ ‘the class of
“wealthy” persons.’ ”]; see also Maher v. Roe (1977) 432 U.S. 464, 471 [“[T]his Court
has never held that financial need alone identifies a suspect class for purposes of equal
protection analysis. [Citations]”.)
       Plaintiff relies on Serrano v. Priest (1971) 5 Cal.3d 584 (Serrano), in which the
Supreme Court struck down a public school financing system based on local real property
assessed valuations, concluding an educational system that produces disparities of
opportunity based upon district wealth violates principles of equal protection. (Id. at pp.
598-600.) In Serrano, the Court afforded constitutional protection to students from poor
districts because state law diminished that group’s fundamental right to an education
equal to that of wealthy districts. The Court held that the method of financing schools
through ad valorem property taxes was violative of equal protection as it discriminated on

                                              8
the basis of wealth. (Id. at pp. 614-615.) Thus, the issue was that the financing system
itself created an inequality affecting a fundamental right, not that poor people are, as
such, members of a protected class.
       We also note the cases cited in Serrano relate to unconstitutional treatment of
indigents, not discrimination against persons who may not have enough money to buy a
house. (Serrano, supra, 5 Cal.3d at pp. 597-598; see, e.g., Harper v. Virginia Bd. of
Elections (1966) 383 U.S. 663 [poll tax]; Tate v. Short (1971) 401 U.S. 395 [indigent
defendant cannot be sent to jail for inability to pay a fine imposed for traffic violations];
Douglas v. California (1963) 372 U.S. 353 [indigent defendant has a right to counsel on
appeal]; Smith v. Bennett (1961) 365 U.S. 708 [indigent defendant has a right to petition
for habeas corpus despite his inability to pay a filing fee].) Serrano is inapposite because
it does not purport to identify persons who cannot afford to own real property as a
protected class.
       Thus, the rational basis test applies. A statute “should be sustained if we find that
its classification is rationally related to achievement of a legitimate state purpose.”
(Western & Southern Life Ins. Co. v. State Bd. of Equalization (1981) 451 U.S. 648, 657.)
“In a rational basis analysis, any conceivable state purpose or policy may be considered
by the courts. [Citations.] The state ‘has no obligation to produce evidence to sustain the
rationality of a statutory classification,’ which ‘ “may be based on rational speculation
unsupported by evidence or empirical data.” ’ [Citation.] The party challenging the
constitutionality of a state law must ‘ “negative every conceivable basis which might
support it.” ’ [Citation.] ‘A classification does not fail rational-basis review because it
“ ‘is not made with mathematical nicety or because in practice it results in some
inequality.’ ” ’ [Citation.] The burden of demonstrating the invalidity of a challenged
classification ‘rests squarely upon the party who assails it.’ [Citation.]” (Jensen, supra,
178 Cal.App.4th at p. 436, italics omitted.)



                                               9
       Here, plaintiff does not contend section 526a serves no conceivable state purpose.
She merely argues that the statute, as construed under Torres and Cornelius,
discriminates against some taxpayers on account of the fact that they do not pay property
taxes. Courts have noted that it is not irrational to limit standing in taxpayer lawsuits.
For example, the court in Cornelius stated it did not believe “it would be sound public
policy to permit the haphazard initiation of lawsuits against local public agencies based
only on the payment of state income taxes.” (Cornelius, supra, 49 Cal.App.4th 1761 at
pp. 1778-1779.) We also see a rational purpose in limiting taxpayer standing to persons
who pay property tax in the jurisdiction corresponding to the public entity defendant.
Individuals who have directly paid a tax to the government have obtained “a sufficiently
personal interest in the illegal expenditure of funds by county officials to become
dedicated adversaries.” (Blair, supra, 5 Cal.3d at p. 270.) Additionally, given the
apparent widespread nature of defendants’ vehicle impoundment practices, this is not a
case in which taxpayer standing must be construed liberally to allow a challenge to
governmental action which would otherwise go unchallenged because of the stricter
requirement of standing imposed by case law. (See Blair, supra, 5 Cal.3d at pp. 267-
268.) Presumably there are many individuals whose vehicles have been impounded by
defendants, and who therefore can fulfill the case law requirement of actual injury. 7
Alternatively, there are many homeowners who pay taxes directly to defendants and who
have standing to raise the claims plaintiff seeks to pursue. We thus agree with defendants
that plaintiff lacks standing to bring the instant action.


7
  “ ‘The issue of whether a party has standing focuses on the plaintiff, not the issues he or
she seeks to have determined.’ [Citation.] ‘A person who invokes the judicial process
lacks standing if he, or those whom he properly represents, “does not have a real interest
in the ultimate adjudication because [he] has neither suffered nor is about to suffer any
injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues
will be adequately presented.” [Citation.]’ [Citations.] ‘California decisions . . .
generally require a plaintiff to have a personal interest in the litigation’s outcome.’
[Citation.]” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126
Cal.App.4th 993, 1001.)


                                              10
                                   DISPOSITION
      The judgment is affirmed.



                                               _________________________
                                               Dondero, J.


We concur:


_________________________
Margulies, Acting P.J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                          11
Trial Court:                                   Marin County Superior Court


Trial Judge:                                   Hon. Roy Chernus


Counsel for Plaintiff and Appellant:           Mark T. Clausen


Counsel for Defendants and Respondents:        Bertrand, Fox & Elliot:
                                                Thomas F. Bertrand,
                                                 and
                                                Richard W. Osman

                                               Marin County Counsel:
                                                Renee G. Brewer,
                                                 and
                                                Valorie R. Boughey




                                          12
