Filed 9/26/13 Neilson v. City of California City CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

N. L. NEILSON,
                                                                                           F066007
         Plaintiff and Appellant,
                                                                              (Super. Ct. No. CV-276204)
                   v.

CITY OF CALIFORNIA CITY,                                                                 OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         N. L. Neilson, in pro. per., for Plaintiff and Appellant.
         Lemieux & O’Neill and W. Keith Lemieux for Defendant and Respondent.
                                                        -ooOoo-
       Plaintiff N. L. Neilson challenged the validity of a special tax approved by more
than two-thirds of the voting residents of defendant City of California City (California
City). The special tax, known as Measure A, was for the purpose of paying for police
and fire protection, among other things, and it imposed a flat tax of $150 per lot or parcel
of real property in California City. Plaintiff claimed that the special tax violated the
equal protection clause of the United States Constitution because it was not assessed in
proportion to property values. After analyzing the relevant case law, the trial court
concluded that plaintiff failed to allege facts constituting a violation of federal equal
protection principles and it sustained the demurrer to plaintiff’s first amended complaint
without leave to amend. Plaintiff appealed. We agree with the trial court’s conclusion
and affirm the judgment below.
                       FACTS AND PROCEDURAL HISTORY
Special Tax Approved by the Voters
       The facts are not in dispute. On November 22, 2011, the City Council of
California City passed a resolution calling for a municipal election on March 6, 2012, to
consider whether to approve a special tax referred to as Measure A. The question to go
before the voters was this: “Shall a city-wide special tax of up to $150.00 per lot or
parcel be approved for each of six (6) fiscal years beginning July 1, 2012, for (1) police
operations, training and supplies, personnel, equipment, law enforcement, dispatch, code
enforcement, animal control, and facilities, and (2) fire prevention and suppression
operations, training and supplies, firefighter and paramedic personnel, equipment and
facilities?”
       At the March 6, 2012 election, more than two-thirds of the California City voters
who participated in the election—specifically, 68.33 percent—approved the special tax.




                                              2.
Proceedings in the Trial Court
       Plaintiff, a nonresident who owns real property in California City, brought suit to
challenge the validity of the special tax. The operative pleading, the first amended
complaint, was filed on July 20, 2012. In the first amended complaint, plaintiff claimed
that the special tax violated the equal protection clause of the United States Constitution
because the tax was disproportionate to the value of the property taxed. Allegedly, “[t]he
City’s flat-rate parcel tax that is $150 for each parcel regardless of any value or value
standard or relative to their property holdings is in conflict with U.S. Case Law.” In
particular, plaintiff alleged that the special tax violated equal protection standards
articulated in the case of Allegheny Pittsburgh Coal v. Webster County (1989) 488 U.S.
336 (Allegheny).
       On August 10, 2012, California City generally demurred to plaintiff’s first
amended complaint. Oral argument was heard on September 12, 2012. After the
completion of oral argument, the trial court sustained the demurrer without leave to
amend and dismissed plaintiff’s action. A written order sustaining the demurrer without
leave to amend was filed that same day. On the question of whether the special tax
violated the equal protection clause, the trial court’s written order stated:

              “1. Plaintiff fails to state a cause of action for a violation of the
       Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
       The special tax does not draw an unfair distinction between similarly
       situated properties. Plaintiff’s Complaint concedes that the special tax
       taxes all parcels the same amount. Therefore the Complaint does not state a
       violation of equal protection. (See Gregory v. Ashcroft (1991) 501 U.S.
       452, 471 [equal protection standard].)

              “2. Allegh[e]ny[, supra,] 488 U.S. 336; Sioux City Bridge Co. v.
       Dakota County (1923) 260 U.S. 441 and Cumberland Coal Co. v. Board of
       Revision (1931) 284 U.S. 23, 25 [(Cumberland Coal Co.)], require that an
       ad valorem tax be assessed using a uniform standard on all property. But
       these cases nowhere state that all special taxes assessed against property
       owners must be ad valorem or based on size or acquisition.



                                              3.
              “3. It is clear based on the allegations contained in the Complaint
       and the documents presented by the City that the tax at issue is a special
       parcel tax, not an ad v[a]lorem tax, excise tax, special assessment, or a fee.
       Plaintiff has admitted that the tax was adopted by a 2/3 vote of the
       electorate of the City. It is therefore a valid tax under California law.”
       Notice of entry of the trial court’s order sustaining the demurrer without leave to
amend was filed and served on September 14, 2012. The trial court’s dismissal of the
entire action in conjunction with sustaining demurrer without leave will be treated as
tantamount to a final judgment.1 Plaintiff’s timely appeal followed.
Summary of Previous Legal Challenges by Plaintiff
       The present case is not the first time plaintiff has challenged a special tax adopted
by California City voters. Plaintiff has prosecuted two prior actions challenging nearly
identical versions of the special tax at issue here. Both of the prior actions were
dismissed on demurrer by the trial court because plaintiff failed to state a cause of action
and, in both cases, we affirmed the trial court’s decision on appeal. We briefly highlight
the prior actions as background to the instant appeal.
       In 2004, plaintiff filed a lawsuit seeking to invalidate a special tax adopted at that
time by the voters of California City. The 2004 special tax was in all material respects
identical to the present tax now before us. The only differences were that the 2004
special tax was for $75 instead of $150 per parcel, was effective for only three years and
was dedicated to pay for a wider array of special purposes. Plaintiff’s second amended
complaint alleged that the 2004 special tax was invalid because (1) it was not apportioned
according to value as allegedly required by the California Constitution, (2) it was not a

1      Although the trial court neglected to enter a formal judgment of dismissal
following the sustaining of the demurrer without leave to amend, it is clear the trial court
intended to do so. Not only was leave to amend denied, but a dismissal of the action was
ordered from the bench and included in the minutes of the court register. Under the
circumstances, we exercise our discretion to deem that the order sustaining demurrer
without leave is modified to include a judgment of dismissal. (Estate of Dito (2011) 198
Cal.App.4th 791, 799-800.)



                                              4.
special tax, and (3) it violated the equal protection clause of the United States and
California Constitutions because nonresident property owners did not get an opportunity
to vote on the tax. California City demurred, and the trial court sustained the demurrer to
the second amended complaint without leave to amend. Plaintiff appealed. That appeal
resulted in a published opinion, Neilson v. City of California City (2005) 133 Cal.App.4th
1296, in which we rejected each of plaintiff’s arguments and affirmed the judgment of
dismissal because plaintiff failed to state a cause of action. (Id. at pp. 1301, 1318.)
       In March 2007, the voters of California City passed a new special tax. Shortly
thereafter, plaintiff filed a complaint challenging the validity of the 2007 special tax. The
special tax was essentially the same as the one now before us, except it was for $100 per
parcel instead of $150 and it included additional special purposes. Plaintiff argued the
2007 special tax violated the equal protection clause of the United States Constitution
because it was a tax on property that was not proportional to value (not ad valorem),
which allegedly violated the equal protection principles set forth in the case of Allegheny,
supra, 488 U.S. 336. As before, the trial court sustained the demurrer by California City
without leave to amend and plaintiff appealed. In a nonpublished opinion, Neilson v. City
of California City (July 1, 2008, F053320), we rejected plaintiff’s claims and affirmed the
judgment of the trial court. Solely as background to the present appeal, we note our
holding in that nonpublished opinion: “We conclude that the equal protection clause, as
discussed by the United States Supreme Court in Allegheny[, supra,] 488 U.S. 336 … and
elsewhere, does not require a parcel tax to be in proportion to the value of the parcel.
Consequently, plaintiff failed to state a cause of action and the superior court correctly
sustained the demurrer.”
       As will be seen, here we are again, addressing substantially the same issues in the
present appeal.




                                              5.
                                       DISCUSSION
I.      Standard of Review
        On appeal from a judgment of dismissal after sustaining a demurrer without leave
to amend, the standard of review is as follows: “The reviewing court gives the complaint
a reasonable interpretation, and treats the demurrer as admitting all material facts
properly pleaded. [Citations.] The court does not, however, assume the truth of
contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’
[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff
has stated a cause of action under any possible legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-
967.)
        Whether a complaint has stated a cause of action is an issue of law (Cellular Plus,
Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231), which we review de novo
(Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495).
II.     Plaintiff Failed to State a Claim Under Equal Protection Clause
        The sole question before us is whether plaintiff stated a cause of action for
violation of the equal protection clause of the United States Constitution. Plaintiff argues
that the special tax violated the equal protection clause because, as a flat-rate parcel tax, it
was not proportional to property values. According to plaintiff, any tax on property that
is not assessed according to property values inevitably creates disparities that are not
permitted under the case law interpreting the equal protection clause. California City
responds that since the special tax treated all parcels alike by taxing them in the same
amount ($150 per year), and since the classifications or line-drawing entailed in the



                                               6.
special tax were rationally related to legitimate government purposes, it passed muster
under the equal protection clause. California City is correct.
       A.     General Principles of Equal Protection
       The equal protection clause of the Fourteenth Amendment to the United States
Constitution provides: “[N]o State shall ‘deny to any person within its jurisdiction the
equal protection of the laws.’” (U.S. Const., 14th Amend., § 1.) The clause is
“essentially a direction that all persons similarly situated should be treated alike” under
the law. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439.) “Of
course, most laws differentiate in some fashion between classes of persons. The Equal
Protection Clause does not forbid classifications. It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.
[Citation.]” (Nordlinger v. Hahn (1992) 505 U.S. 1, 10 (Nordlinger).)
       “‘The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ [Citations.]” (Cooley v. Superior Court (2002)
29 Cal.4th 228, 253.) When a statutory classification is challenged on equal protection
grounds, most legislation is reviewed only to determine whether the classification bears a
rational relationship to a legitimate state interest. (People v. Hofsheier (2006) 37 Cal.4th
1185, 1200.) “In areas of social and economic policy, a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional rights must
be upheld against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. [Citations.]” (FCC v.
Beach Communications, Inc. (1993) 508 U.S. 307, 313-314.) “Where there are ‘plausible
reasons’ for [the classification] ‘our inquiry is at an end.’ [Citation.] This standard of
review is a paradigm of judicial restraint. ‘The Constitution presumes that, absent some
reason to infer antipathy, even improvident decisions will eventually be rectified by the
democratic process and that judicial intervention is generally unwarranted no matter how

                                              7.
unwisely we may think a political branch has acted.’ [Citation.]” (Ibid., fn. omitted;
accord, Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482.)
       “On rational-basis review, a classification in a statute ... comes to us bearing a
strong presumption of validity, [citation], and those attacking the rationality of the
legislative classification have the burden ‘to negative every conceivable basis which
might support it,’ [citation].” (FCC v. Beach Communications, Inc., supra, 508 U.S. at
pp. 314-315.) “‘[L]egislatures are presumed to have acted within their constitutional
power despite the fact that, in practice, their laws result in some inequality.’ [Citation.]
Accordingly, this Court’s cases are clear that, unless a classification warrants some form
of heightened review because it jeopardizes exercise of a fundamental right or categorizes
on the basis of an inherently suspect characteristic, the Equal Protection Clause requires
only that the classification rationally further a legitimate state interest.” (Nordlinger,
supra, 505 U.S. at p. 10.)
       The rational basis test has been held to be the applicable level of scrutiny in equal
protection challenges to property tax classifications. In Nordlinger, the United States
Supreme Court addressed whether the assessment method set forth in article XIII A of the
California Constitution violated the equal protection clause because it resulted in
disparities in taxation of properties of comparable value. The Supreme Court concluded
that article XIII A did not violate the equal protection clause, even though it created such
disparities, because there were rational policy considerations that supported the system.
(Nordlinger, supra, 505 U.S. at pp. 12-16.) In the course of its discussion, the court set
forth the basic principles that apply when a tax is challenged on equal protection grounds:
“The appropriate standard of review is whether the difference in treatment between newer
and older owners rationally furthers a legitimate state interest. In general, the Equal
Protection Clause is satisfied so long as there is a plausible policy reason for the
classification, [citation], the legislative facts on which the classification is apparently
based rationally may have been considered to be true by the governmental

                                               8.
decisionmaker, [citation], and the relationship of the classification to its goal is not so
attenuated as to render the distinction arbitrary or irrational, [citation]. This standard is
especially deferential in the context of classifications made by complex tax laws. ‘[I]n
structuring internal taxation schemes “the States have large leeway in making
classifications and drawing lines which in their judgment produce reasonable systems of
taxation.”’” (Id. at p. 11.)
       Based on the foregoing, it is clear that the appropriate level of scrutiny applicable
to plaintiff’s challenge to California City’s special tax is the rational basis test.
       B.     A Rational Basis Supports the Special Tax
       Applying the rational basis test here, we conclude that the classification used in
the special tax rationally furthered plausible policy objectives of California City. The
special tax, which was adopted for the special purpose of paying for police operations
and fire prevention, among other things, applied a uniform standard by taxing each lot or
parcel in the equivalent amount—that is, $150. The system of taxing each parcel or lot in
an equal sum each year to fund police and fire services was reasonably supportable by
reference to plausible and legitimate objectives of the municipality and of the electorate
that approved the tax. As pointed out by California City, the potential virtues or benefits
of such a flat-rate, per-parcel special tax to support local police and fire services would
include: “(1) it allows taxpayers to properly anticipate future tax liability without relying
on a projection of future real estate market values; (2) it allows the city to have a precise
fixed projection for revenue; (3) it addresses concerns about ‘fairness’ by assessing all
parcels equally; and (4) it is extremely easy for taxpayers to calculate.” Since the special
tax rationally furthered such plausible objectives, it must be upheld under the rational
basis test against plaintiff’s equal protection challenge. (Nordlinger, supra, 505 U.S. at
p. 11 [“In general, the Equal Protection Clause is satisfied so long as there is a plausible
policy reason for the classification .…”].) Therefore, plaintiff’s equal protection
challenge fails.

                                               9.
       C.     Case Law Relied on by Plaintiff Distinguishable
       In support of his claim that the special tax in this case violated the equal protection
clause, plaintiff primarily relies on Allegheny, supra, 488 U.S. 336. His basic contention
is that the burden of property taxes must always be in proportion to “value” or based on a
“value standard” to satisfy the equal protection clause. In support of that contention,
plaintiff recites the following passage from Allegheny: “[T]he fairness of one’s allocable
share of the total property tax burden can only be meaningfully evaluated by comparison
with the share of others similarly situated relative to their property holdings.” (Id. at p.
346.) We note further that Allegheny also expressed approval of the general principle
articulated in earlier cases such as Cumberland Coal Co., supra, 284 U.S. at pages 28-29,
to the effect that “‘[I]ntentional systematic undervaluation by state officials of other
taxable property in the same class contravenes the constitutional right of one taxed upon
the full value of his property.’” (Allegheny, supra, at p. 345.)
       The statements in Allegheny relied on by plaintiff must be understood in their
proper context. Allegheny involved a challenge to the way West Virginia’s property tax
laws were being unequally applied by a county assessor. (Allegheny, supra, 488 U.S. at
pp. 339-340.) The West Virginia Constitution specifically provided that taxation would
be equal and uniform throughout the state and that all property would be taxed in
proportion to its value. (Allegheny, supra, at p. 338.) The assessor for Webster County,
West Virginia set the appraised value of property on the basis of its most recent purchase
price, but only made minor adjustments to the assessment of land that had not been
recently sold. (Ibid.) The latter adjustments, however, were small compared to the actual
increase in property values. “This approach systematically produced dramatic
differences in valuation between [Allegheny’s] recently transferred property and
otherwise comparable surrounding land. For the years 1976 through 1982, Allegheny
was assessed and taxed at approximately 35 times the rate applied to owners of
comparable properties.” (Id. at p. 341.) Because West Virginia law required all property

                                             10.
to be taxed at a uniform rate throughout the state according to its value, and because that
state law was being systematically thwarted by the practice used by Webster County
officials to grossly undervalue certain properties, Allegheny was denied equal protection
of the law. (Id. at pp. 345-346.)
       In so holding, the Supreme Court noted that it was not reaching the issue of
“whether the Webster County assessment method would stand on a different footing if it
were the law of a State, generally applied, instead of the aberrational enforcement policy
it appears to be.” (Allegheny, supra, 488 U.S. at p. 344, fn. 4.) That same footnote
observed that the State of California had recently adopted such a law, a constitutional
provision known as Proposition 13: “Proposition 13 generally provides that property will
be assessed at its 1975-1976 value, and reassessed only when transferred or constructed
upon, or in a limited manner for inflation. [Citation.] The [California] system is
grounded on the belief that taxes should be based on the original cost of property and
should not tax unrealized paper gains in the value of the property.” (Allegheny, supra, at
pp. 344-345, fn. 4.)
       Nordlinger further explained and clarified the decision in Allegheny. In
Nordlinger, the petitioners challenged the acquisition-value assessment method contained
in article XIII A of the California Constitution (i.e., Proposition 13) on equal protection
grounds. The United States Supreme Court observed that article XIII A, like the
assessment practice in Allegheny, “resulted in dramatic disparities in taxation of
properties of comparable value.” (Nordlinger, supra, 505 U.S. at p. 14.) Nevertheless,
applying the rational basis test, the court concluded there were rational or reasonable
considerations that supported the system of taxation provided in article XIII A.
(Nordlinger, supra, at pp. 12-13.) Accordingly, article XIII A of the California
Constitution did not violate the equal protection clause. (Nordlinger, supra, at pp. 16-
18.)



                                             11.
       In Nordlinger, the United States Supreme Court expressly distinguished Allegheny
by noting that in Allegheny, there was an “absence of any indication … that the policies
underlying an acquisition-value taxation scheme could conceivably have been the
purpose for the Webster County tax assessor’s unequal assessment scheme.”
(Nordlinger, supra, 505 U.S. at p. 15.) Moreover, the court noted that in Allegheny, the
West Virginia Constitution and statutes required that “‘all property of the kind held by
[Allegheny] shall be taxed at a rate uniform throughout the State according to its
estimated market value,’ and the [Allegheny] Court found ‘no suggestion’ that ‘the State
may have adopted a different system in practice from that specified by statute.’”
(Nordlinger, supra, at p. 15.)
       Here, plaintiff is not contending that the special tax approved by California City
voters was unequally applied. Instead, plaintiff claims that the law itself, when applied
exactly as written (on an equal basis of $150 per parcel), has denied him equal protection.
On these facts, Allegheny is clearly distinguishable. Allegheny merely articulated equal
protection principles in the context of the particular ad valorem property tax law in effect
in West Virginia, where that law had been administered in a grossly unequal manner by
an errant county assessor. Additionally, Allegheny did not hold that all forms of taxation
of property must be ad valorem, nor did it even address that issue. Hence, the opinion
relied upon by plaintiff does not support his position.
       D.     State Law Does Not Support Plaintiff’s Claim
       Hypothetically, plaintiff could potentially state a cause of action for violation of
the equal protection clause if he could show that a law exists requiring special taxes to be
assessed in proportion to property value. Plaintiff argues, as he did in his prior appeals,
that under California law all taxes on real property must be ad valorem. Whether we may
like the outcome or not, plaintiff remains mistaken on that issue.
       We do not approach the question on a blank slate. In Heckendorn v. City of San
Marino (1986) 42 Cal.3d 481 (Heckendorn), the City of San Marino levied a special tax

                                             12.
to support police and fire services after the measure was approved by nearly 80 percent of
the city’s voters. The special tax was a tax on parcels of real property; but instead of
applying a flat amount per parcel, it was graduated based on the size of the parcel. (Id. at
pp. 483-486.) A resident challenged the graduated tax as effectively being an ad valorem
tax on real property prohibited by article XIII A of the California Constitution because it
allegedly exceeded “the maximum amount allowed by the California Constitution.”
(Heckendorn, supra, at p. 485.) The California Supreme Court first summarized the
relevant provisions of article XIII A, as follows: “Article XIII A, section 1 of the
California Constitution limits ad valorem taxes on real property to 1 percent of the
property’s full cash value. Section 4 of that article restricts the ability of cities, counties
and special districts to impose special taxes by requiring a two-thirds vote of approval by
qualified electors. Section 4 also prohibits the imposition of a special tax that is an ad
valorem tax on real property.” (Heckendorn, supra, at p. 486.) Was the tax in question
an impermissible ad valorem tax on real property? The California Supreme Court held
that the tax was not an ad valorem tax since it was not levied on an assessment of
property value. Instead, the tax was a valid special tax as authorized by article XIII A,
section 4 of the California Constitution. (Heckendorn, supra, at pp. 486-489.) In so
holding, the court construed the constitutional language in article XIII A, section 4, as
being consistent with relevant statutory provisions, including Government Code
section 53978, subdivision (b), which provided that a special tax for police or fire
protection may be levied “‘on a parcel, class of improvement to property, or use of
property basis, or a combination thereof.…’” (Heckendorn, supra, at p. 488.) If, as
plaintiff has contended herein, all taxes on real property must be ad valorem, our
Supreme Court could not have reached the decision it did in the Heckendorn case.
       In Neilson v. City of California City, supra, 133 Cal.App.4th 1296, plaintiff argued
that, under certain provisions of the California Constitution, all taxes imposed on real
property in this state had to be ad valorem taxes and, as a result, the 2004 special tax

                                              13.
challenged in that case was invalid because it was a flat per-parcel tax. Here is what we
said in rejecting that contention:

               “In his opening brief, plaintiff asks this court to settle a question of
       law concerning the meaning of a particular phrase in section 4 of
       article XIII A. That section provides in full: ‘Cities, counties and special
       districts, by a two-thirds vote of the qualified electors of such district, may
       impose special taxes on such district, except ad valorem taxes on real
       property or a transaction tax or sales tax on the sale of real property within
       such City, County or special district.’ (Art. XIII A, § 4, italics added.)

              “Plaintiff contends that (1) the California Constitution requires that
       taxes based on the mere ownership of real property must be ad valorem
       taxes, and (2) section 4 of article XIII A cannot be read to mean local
       governments are granted the authority to adopt non-ad valorem taxes,
       whether general or special, on the mere ownership of real property.

               “Another constitutional provision relevant to plaintiff’s argument,
       however, is the limitation on property taxes, assessments, fees and charges
       set forth in Proposition 218:

              “‘(a) No tax, assessment, fee, or charge shall be assessed by any
       agency upon any parcel of property or upon any person as an incident of
       property ownership except:

             “‘(1) The ad valorem property tax imposed pursuant to Article XIII
       and Article XIII A.

              “‘(2) Any special tax receiving a two-thirds vote pursuant to
       Section 4 of Article XIII A.

              “‘(3) Assessments as provided by this article.

               “‘(4) Fees or charges for property related services as provided by
       this article.’ (Art. XIII D, § 3.)

               “The use of the phrase ‘[a]ny special tax’ and the language in
       article XIII D, section 3, subdivision (a) that introduces the enumerated
       exceptions clearly establish that a special tax receiving a two-thirds vote
       may be imposed ‘upon any parcel of property or upon any person as an
       incident of property ownership.’ Therefore, to harmonize the constitutional
       provisions we must reject plaintiff’s interpretation of section 4 of
       article XIII A. Instead, we conclude that a non-ad valorem tax may be


                                              14.
       imposed upon real property if the tax is a ‘special’ tax dedicated to specific
       purposes and approved ‘by a two-thirds vote of the qualified electors of’
       the city, county, or special district imposing the tax. (Art. XIII A, § 4.)”
       (Neilson v. City of California City, supra, at pp. 1307-1308, italics added,
       fn. omitted.)
No relevant change in the law has occurred since we reached this conclusion. We will
not revisit that conclusion here.
       Finally, plaintiff erroneously relies on Thomas v. City of East Palo Alto (1977) 53
Cal.App.4th 1084 (Thomas) [a general tax on parcels was a property tax and not an
excise tax; question whether it was a special tax was not reached, since it did not receive
two-thirds voter approval], and City of Oakland v. Digre (1988) 205 Cal.App.3d 99
(Digre) [a general tax on parcels passed by simple majority was invalid under
article XIII A of the California Constitution]. Although some of the broad wording
contained in these cases could arguably be construed as aiding plaintiff’s position if taken
out of context, both cases were merely addressing the subject of general, not special,
taxes. Neither case reached the specific issue of whether the tax in question would have
been valid as a special tax. (Thomas, supra, at pp. 1086, 1094, fn. 8; Digre, supra, at
pp. 104, 109-111.) Accordingly, both cases are distinguishable.
       It is clear that California law does not assist plaintiff in his attempt to show that
California City’s special tax violated the equal protection clause of the United States
Constitution. For all of the reasons noted herein, we conclude that the trial court
correctly determined that plaintiff failed to state a cause of action.




                                              15.
                                  DISPOSITION
     The judgment is affirmed. Costs on appeal are awarded to California City.


                                                           _____________________
                                                                          Kane, J.
WE CONCUR:


 _____________________
Wiseman, Acting P.J.


 _____________________
Levy, J.




                                        16.
