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

• Court: California Court of Appeal
• Decided: September 9, 2015
• Docket: E060022
• Status: Unpublished

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.