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Updated on Oct 25, 2021

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The California Court of Appeal, Second Appellate District, Division Three, held that defendant city was not authorized under the Government Claims Act to establish its own claims procedure for refund of the telephone users tax (TUT), and that plaintiff could file a class claim for a TUT refund. Accordingly, it reversed the trial court's dismissal order with respect to four of plaintiff's six causes of action. The city petitioned for review.

The city argued that its municipal code contained an "applicable governing claims statute" barring class action claims for a tax refund. The court found that a local ordinance is not a "statute" within the meaning of the Government Claims Act. The applicable definition of "statute" in Gov. Code, § 905, subd. (a), which governs the procedure for tax refund claims against local public entities, is that set forth in Gov. Code, § 811.8, which excludes local charter provisions and ordinances. The Best corporate lawyers home rule protections in the California Constitution do not limit the legislature's authority to prescribe procedures governing claims against chartered local government entities. The issue was not whether class actions for tax refunds should be permitted, but which level of government-the state or the local public entity-should define the procedures governing an action for refund of a local tax. The court held that except as to claims under the California Revenue and Taxation Code or other statute prescribing procedures for the refund of any tax, the legislature has determined that the Government Claims Act applies.

The judgment of the appellate court was affirmed.

The United States Supreme Court remanded the case with instructions to determine whether an ordinance banning outdoor advertising on billboards could be saved by a limiting judicial construction or by severance of unconstitutional provisions, in an action by plaintiff outdoor advertising companies to enjoin defendant city from enforcing San Diego, Cal., Ordinance 10795.

Plaintiff outdoor advertising companies filed suit against defendant city seeking to ban the enforcement of an ordinance requiring the removal of, and preventing the erection of billboards within the city limits. The trial court issued an injunction banning enforcement of the ordinance and the California Supreme Court reversed and upheld the ordinance. The United States Supreme Court reversed and held that the ordinance's prohibition on noncommercial billboards violated the U. S. Const. amend. I. On remand, the court affirmed the original order enjoining enforcement of the ordinance because the ordinance could not fairly and reasonably be construed in a manner that would preserve its constitutionality. The court found that the intention of the city council in enacting the billboard was to include noncommercial billboards and that any other interpretation of, or severance of the ordinance which preserved its constitutionality did not give effect to the city council's intent.

In an action by plaintiff outdoor advertising companies, the court affirmed the order enjoining defendant city from enforcing an ordinance that banned advertising on outdoor billboards, because the ordinance as written violated the First Amendment and it could not fairly and reasonably be construed to preserve both its intent and its constitutionality.

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