The Inland Oversight Committee v. City of Ontario CA4/2 ( 2015 )

Filed 9/9/15 The Inland Oversight Committee v. City of Ontario CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE INLAND OVERSIGHT
COMMITTEE,
E060022
Plaintiff and Appellant,
(Super.Ct.No. CIVRS1304541)
v.
OPINION
CITY OF ONTARIO et al.,
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,
Judge. Dismissed.
Briggs Law Corporation, Cory J. Briggs, Anthony N. Kim, and Mekaela M.
Gladden for Plaintiff and Appellant.
Best Best & Krieger, Richard T. Egger, Kira L. Klatchko, and Irene S. Zurko for
Defendants and Respondents.
Colantuono, Highsmith & Whatley, Michael G. Colantuono and David J.
Ruderman for San Diego Tourism Marketing District Corporation, Greater Palm Springs
1
Convention and Visitors Bureau, Los Angeles Tourism Marketing District, Santa Monica
Convention and Visitors Bureau, San Francisco Tourism Improvement District
Management Corporation, and California Travel Association as Amici Curiae on behalf
of Defendants and Respondents.
I. INTRODUCTION
In 2013, defendant and respondent, City of Ontario, with the consent of defendant
and respondent, City of Rancho Cucamonga, established the Greater Ontario Tourism
Marketing District (the GOTMD), pursuant to the Property and Business Improvement
District Law of 1994. (Sts. & Hy. Code, §§ 36600-36671.)1 The GOTMD is comprised
of all lodging businesses operating in the two cities, and its mandate is to market and
promote the businesses as “tourist, meeting and event destinations” with assessments
imposed on the businesses based on their room rates and rental volumes. (See § 36632.)
Plaintiff and appellant, The Inland Oversight Committee (IOC), sued the cities to
invalidate the assessments on the ground they were a “tax” that was not approved by a
majority or supermajority of the cities’ voters as article XIII C of the California
Constitution required. (Cal. Const., art. XIII C, §§ 1, subd. (e)(2), 2, subds. (b) [majority
voter approval required for general taxes], (d) [supermajority voter approval required for
special taxes].) IOC claims the assessments are either a general tax requiring majority
voter approval or a special tax requiring supermajority voter approval.
1 All further statutory references are to the Streets and Highways Code unless
otherwise indicated.
2
IOC alleges it is a nonprofit organization representing the cities’ registered voters
and city residents who either did or did not rent hotel rooms in the cities after learning the
lodging businesses could pass the assessments onto their guests. IOC claims that the
cities’ registered voters were deprived of their right to vote on the assessments under
article XIII C of the California Constitution and, “[f]undamentally, this case is about the
[public’s] constitutional right to vote” on new taxes. The cities demurred to IOC’s
complaint and writ petition on the ground that neither IOC nor any of its members had
standing to challenge the validity of the assessments.
The trial court sustained the demurrers, without leave to amend, on the ground that
neither IOC nor any of its members had standing to challenge the validity of the
assessments. On October 3, 2013, the trial court signed and mailed an order dismissing
the action. (Code Civ. Proc., § 581d.) On November 7, 2013, IOC filed a notice of
appeal from the judgment. On July 14, 2014, the cities filed a motion to dismiss the
appeal along with their respondent’s brief. IOC responded to the motion, both in its reply
brief and in a separate opposition to the motion.
The cities claim this court lacks jurisdiction to consider the merits of IOC’s appeal
because IOC’s notice of appeal was untimely filed on November 7, 2013, more than 30
days after the judgment was entered on October 3, 2013. (§ 36633.) We deferred ruling
on the motion for consideration with the appeal. For the reasons we explain, we agree
that IOC’s notice of appeal was untimely filed. We therefore lack jurisdiction to consider
the merits of the appeal and must dismiss the appeal.
3
II. DISCUSSION
The timely filing of a notice of appeal “is an absolute prerequisite to the exercise
of appellate jurisdiction; once the deadline expires, we have no power to entertain the
appeal.” (Janis v. California State Lottery Com. (1998) 68 Cal. App. 4th 824, 828-829;
Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.
(1997) 15 Cal. 4th 51, 56.) “If a notice of appeal is not timely, the appellate court must
dismiss the appeal. [Citations.]” (Payne v. Rader (2008) 167 Cal. App. 4th 1569, 1573.)
Section 36633 provides: “The validity of an assessment levied under this part
shall not be contested in any action or proceeding unless the action or proceeding is
commenced within 30 days after the resolution levying the assessment is adopted
pursuant to Section 36626. Any appeal from a final judgment in an action or proceeding
shall be perfected within 30 days after the entry of judgment.” (Italics added.)
Rule 8.104 of the California Rules of Court prescribes 60- and 180-day time limits
on the filing of a notice of appeal, but these time limits do not apply if a statute prescribes
another time limit.2 Section 36633, not rule 8.104, applies to the filing of IOC’s notice of
appeal. Section 36633 prescribes 30-day time limits on (1) the commencement of an
action or proceeding challenging the validity of a levy of an assessment pursuant to the
Property and Buiness Improvement District Law of 1994; and (2) the filing or
“perfection” of a notice of appeal from a judgment in such an action or proceeding.
2 California Rules of Court, rule 8.104 states, in part: “Unless a statue . . .
provides otherwise, a notice of appeal must be filed on or before the earliest of: . . .”
4
IOC timely commenced the present action and writ proceeding challenging the
validity of the City of Ontario’s resolution establishing the GOTMD and approving the
levy of an assessment on lodging businesses in order to fund the GOTMD, but IOC did
not timely appeal the order or judgment sustaining the cities’ demurrers and dismissing
the action. On June 4, 2013, the City of Ontario adopted city council resolution No.
2013-041 establishing the GOTMD for a five-year term and approving the levy of an
assessment on lodging businesses operating in the cities of Ontario and Rancho
Cucamonga in order to fund the GOTMD.3 Less than 30 days later, on July 1, 2013, IOC
filed its complaint and writ petition, seeking a judgment invalidating both the “TMD
approval” and the levy of the assessments to fund the GOTMD. The complaint alleges
IOC was bringing the action under section 36633 “among other laws and as appropriate.”
As noted, on October 3, 2013, the trial court signed and filed the order sustaining
the cities’ demurrers to IOC’s complaint and writ petition and dismissing the action. The
order, signed by the court, constitutes a judgment. (Code Civ. Proc., § 581d.) IOC filed
its notice of appeal 35 days later, on November 7, 2013. The appeal was untimely
because it was not filed within 30 days after the entry of the judgment on October 3,
2013. (§ 36633; Cal. Rules of Court, rule 8.104(c) [a judgment is entered on the date it is
3On July 13, 2013, the City of Rancho Cucamonga passed city council resolution
No. 13-027, consenting to the creation of the GOTMD by the City of Ontario.
5
filed].) This court thus lacks jurisdiction to consider the merits of IOC’s appeal and must
dismiss the appeal. (Payne v. Rader, supra, 167 Cal.App.4th at p. 1573.)4
III. DISPOSITION
The appeal by petitioner and appellant IOC is dismissed. Respondents shall
recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
4 If we were to reach the merits of IOC’s claims on appeal, we conclude that the
cities’ demurrers to IOC’s complaint and writ petition were properly sustained, without
leave to amend, because neither IOC nor any of its members have standing to challenge
the validity of the assessments levied in order to fund the GOTMD.
6