Chiatello v. City & County of San Francisco

Opinion

This court has repeatedly recognized that “money is the lifeblood of modem government. Money comes primarily from taxes, and, as the importance of a predictable income stream from taxes has grown, governments at all levels have established procedures to minimize disruptions” that would interfere with essential public operations. (Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65 , 71 [ 65 Cal.Rptr.3d 716 ] (Batt); see Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal.App.4th 1129 , 1135-1136 [ 113 Cal.Rptr.2d 690 ] (Flying Dutchman); Helms Bakeries v. St. Bd. Equalization (1942) 53 Cal.App.2d 417 , 421 [ 128 P.2d 167 ].) This principle is of sufficient magnitude to warrant a constitutional prohibition on any “legal or equitable process ... to prevent or enjoin the collection of any tax” (Cal. Const., art. XIII, § 32 (article Xm, section 32)), reinforced by numerous statutes to the same effect. In Daar v. Alvord (1980) 101 Cal.App.3d 480 [ 161 Cal.Rptr. 658 ], the Court of Appeal held that an action aimed at challenging and halting the collection of a local property tax could not evade these prohibitions by being framed as one intended to prevent governmental waste under Code of Civil Procedure section 526a (section 526a).

In 2008, the voters of San Francisco amended the existing municipal payroll tax in a manner one taxpayer—who, not incidentally, was not subject to the tax—believed unlawful for a number of reasons. He filed a complaint for declaratory relief that the amending measure was invalid, and sought an injunction “preventing the expenditure of taxpayer monies in implementing, applying or enforcing” the measure. Following Daar, the trial court concluded that the taxpayer lacked standing to challenge the measure, and dismissed the complaint.

Although we do not agree that Daar is controlling, we do agree with the trial court’s ultimate conclusion. The crucial point distinguishing Daar is the

After a full and fresh reexamination of the issue, we believe there are weighty policy reasons why no California taxpayer plaintiff has ever been permitted to halt implementation of a local tax. The hostility to the interruption of local tax revenues—of which article XIII, section 32 is but one example—traces back to the 19 th century. There are legitimate concerns for limiting the ability of persons not required to pay a tax themselves to challenge the validity of that tax, particularly when they would enjoy a more advantageous position than given to persons actually required to pay it. And the most obvious negative consequence of allowing legal challenges by persons lacking a direct financial interest in the operation of a tax is the unacceptable risk of paralyzing the financial stability of local governments with a flood of lawsuits. In light of our analysis, we agree with the trial court’s ultimate conclusion that plaintiff lacked standing. We thus affirm the judgment of dismissal.

BACKGROUND

In 1970, the City and County of San Francisco (City) enacted a Payroll Expense Tax Ordinance (Payroll Tax). (S.F. Bus. & Tax Regs. Code, § 901 et seq.) It imposed a tax of one and one-half percent “upon every person engaging in business within the City.” (Id., § 903; see id., § 903.1.) The scope of the tax on “payroll expense” applied to “compensation paid to, on behalf of, or for the benefit of an individual, including salaries, wages, bonuses, commissions, property issued or transferred in exchange for the performance of services . . . and any other form of compensation, who, during any tax year, performs or renders services, in whole or in part in the City.” (Id., former § 902.1, subd. (a).)

In 2004, the City’s voters declined to enact a measure which would have extended the Payroll Tax to “pass-through” entities, which were defined as including “a trust, partnership, corporation described in Subchapter S of the Internal Revenue Code of 1986, . . . limited liability company, limited

In 2008 the City’s Board of Supervisors proposed another ballot proposition—designated Proposition Q—that was intended to clarify the reach of the Payroll Tax. Although the primary purpose of the measure appears to have been to raise the small business exemption to the Payroll Tax, another goal was to settle the question of the scope of the “pass-through” coverage. Concerning two provisions of the Payroll Tax that would be amended (i.e., S.F. Bus. & Tax Regs. Code, §§ 902.1, 902.2), the import of Proposition Q was explained to voters by the City Controller as follows: “Some types of corporations compensate their partners by paying them a share of the firm’s annual profits in addition to any salary paid for services rendered. Currently, the City’s payroll tax is not paid on these profits. The proposed ordinance would require the payroll tax to be paid on all partner compensation, excluding returns on investment, and would result in additional gross annual tax revenue of $17 million. The businesses that would be affected are typically law, accounting, medical, and other types of professional corporations.” Proposition Q was adopted by the voters on November 4, 2008.

On December 30, 2008, plaintiff John Chiatello filed a verified complaint challenging the Proposition Q change to the Payroll Tax as applied to “pass-through” entities. Identifying himself as “a resident of the City who owns real property located within the City and pays property taxes,” plaintiff stated the aim of his complaint as follows: “Enforcement by the City of the invalid and illegal provisions of Proposition Q will result in wasteful expenditures of taxpayer monies. Code of Civil Procedure Section 526a provides a cause of action to taxpayers such as plaintiff to prevent wasteful expenditures of taxes in this manner. Thus, by this action, plaintiff seeks a declaration that the City may not enforce Proposition Q to tax distributions of profits to owners of pass-through entities.”

In his single cause of action—styled as “Taxpayer Action to Prevent Waste—CCP § 526a Declaratory Relief—CCP § 1060”—plaintiff alleged that “Proposition Q’s Amendments were not effective” because “the City misled the electorate in its description of Proposition Q” in that Proposition Q “did not amend a key provision governing the tax base for Associations,” to wit: “[San Francisco Business and Tax Regulations Code] Section 903.1 continues

Plaintiff had additional reasons for assailing the pass-through taxation provisions of Proposition Q. As he alleged at length, “distributions of profits by a Partnership are not compensation for services.” “Taxation of Profit Distributions” was also invalid because it was prohibited by Revenue and Taxation Code section 17041.5, which forbids local government from imposing an income tax. Finally, plaintiff alleged that Proposition Q was invalid because it “violates the Single Subject Rule ... in the City’s Charter.”

Plaintiff alleged that declaratory relief “declaring the invalidity of Proposition Q is necessary to prevent the actual and threatened expenditure of taxpayer monies in implementing and applying these invalid and unlawful provisions, including but not limited to the development of new forms and procedures for submitting and processing such returns, the creation of website materials addressing the changes to the Payroll Expense Tax, the training of staff to handle returns and issues under these new provisions, and the costs of enforcement as taxpayers attempt to comply with the law. The expenditure of these funds is a waste of taxpayer monies and requires immediate adjudication of the legality of Proposition Q.” Plaintiff prayed for a declaratory judgment “pursuant to Code of Civil Procedure Section 526a” determining that “any expenditure of taxpayer monies to implement, apply or enforce . . . Proposition Q to be a waste of taxpayer monies,” prohibited by state law, and enacted in violation of the City’s single subject rule; in addition, plaintiff also prayed for issuance “of a judgment pursuant to Code of Civil Procedure Section 526a restraining and preventing the expenditure of taxpayer monies in implementing, applying or enforcing . . . Proposition Q.”

The City interposed a general demurrer to the complaint. In addition to arguing that Proposition Q was validly drafted and adopted, the City maintained that “plaintiff lacks standing to challenge San Francisco’s Payroll Expense Tax.” Citing Daar v. Alvord, supra, 101 Cal.App.3d 480 , the City explained that “in tax disputes, the rule is ‘Pay First, Litigate Later,’ precluding injunctive or declaratory relief,” and “plaintiff may not invoke section 526a to subvert the ‘pay first’ rule.”

In his opposition to the demurrer, plaintiff cited a number of decisions as authority that he did have standing to press his claim based on section 526a.

“ ‘The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a . . . court, and not [on] the issues he wishes to have adjudicated.’ ” (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150 , 159 [ 101 Cal.Rptr. 880 , 496 P.2d 1248 ], quoting Flast v. Cohen (1968) 392 U.S. 83 , 99 [ 20 L.Ed.2d 947 , 88 S.Ct. 1942 ].) “The issue of standing is determined by the courts as a matter of policy. In large measure it depends on the fitness of the person to raise the issues.” (Farley v. Cory (1978) 78 Cal.App.3d 583 , 588 [ 144 Cal.Rptr. 923 ].) “The question of standing to sue may be raised by demurrer.” (Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035 , 1041 [ 17 Cal.Rptr.2d 400 ], citing Parker v. Bowron (1953) 40 Cal.2d 344 , 351 [ 254 P.2d 6 ].)

However strict the concept of standing may be in other contexts, it has been considerably relaxed by section 526a, which provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, 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, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.”

This relaxation is a consequence of the salutary goal of section 526a: “The primary purpose of this statute, originally enacted in 1909, 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.’ [Citation.] [f] California courts have consistently construed section 526a liberally to achieve this remedial purpose.” (Blair v. Pitchess (1971) 5 Cal.3d 258 , 267-268 [ 96 Cal.Rptr. 42 , 486 P.2d 1242 ]; accord, Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229 , 1236 [ 84 Cal.Rptr.3d 714 ]; Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302 , 1308 [ 65 Cal.Rptr.3d 513 ].) Thus, “under section 526a ‘no showing of special

In point of fact, this liberality has twice outrun the literal statutory language. Notwithstanding the plain language of section 526a identifying the plaintiff as “a citizen resident,” it can be invoked by nonresident taxpayers. (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13 , 18-20 [ 51 Cal.Rptr. 881 , 415 P.2d 769 ].) And courts have applied section 526a to agencies of the state, even though only local governmental units and officers are named in the statute’s text. (Serrano v. Priest (1971) 5 Cal.3d 584 , 618, fn. 38 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 ]; Blair v. Pitchess, supra, 5 Cal.3d 258 , 268; see Cates v. California Gambling Control Com., supra, 154 Cal.App.4th 1304 , 1308-1309 [failure of state officials to collect money due under gaming compacts]; Vasquez v. State of California (2003) 105 Cal.App.4th 849 , 854 [ 129 Cal.Rptr.2d 701 ] [“It is established that an action lies under section 526a . . . to enforce the government’s duty to collect funds due the State.”]; see also Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761 , 1775-1776 [ 57 Cal.Rptr.2d 618 ] and decisions cited.)

Just what amounts to “waste” is more readily intuited than enunciated. It has been described as “a useless expenditure ... of public funds” that is incapable of achieving the ostensible goal. (Harnett v. County of Sacramento (1925) 195 Cal. 676 , 682-683 [ 235 P. 445 ] [funds for special election that could not result in stated purpose of election].) Certainly it reaches outright fraud, corruption, or collusion. (E.g., Harman v. City and County of San Francisco, supra, 7 Cal.3d 150 , 160; Nickerson v. San Bernardino (1918) 179 Cal. 518 , 522-523 [ 177 P. 465 ].) Even when “ ‘done in the exercise of a lawful power,’ ” public spending may qualify as waste if it is “ ‘completely unnecessary,’ ” or “ ‘useless,’ ” or “provides no public benefit.” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101 , 1138-1139 [ 232 Cal.Rptr. 814 , 729 P.2d 80 ]; see County of Ventura v. State Bar (1995) 35 Cal.App.4th 1055 , 1059 [ 41 Cal.Rptr.2d 794 ].) Waste is money that is squandered, or money that is left uncollected, and thus is a constitutionally prohibited gift of public resources. (See Harman v. City and County of San Francisco, supra, 7 Cal.3d at pp. 165-169 [public property sold for less than statutory minimum]; cf. Lundberg v. County of Alameda (1956) 46 Cal.2d 644 , 647 [ 298 P.2d 1 ] [validity of tax exemption unsuccessfully challenged].) Waste can exist even when there is no net loss, as when “illegal procedures actually permit a saving of tax funds.” (Wirin v. Parker (1957) 48 Cal.2d 890 , 894 [ 313 P.2d 844 ].)

Waste does not encompass the great majority of governmental outlays of money or the time of salaried governmental employees, nor does it apply to

Daar v. Alvord Is Not Controlling

Daar v. Alvord cannot be understood without appreciating the role played by article XIII, section 32, which provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.”

It is easy to discern why Daar v. Alvord became the prime focus of the parties’ dispute. The case involved one of the first decisions in the wake of the passage of Proposition 13 to consider the sea change that measure wrought in the assessment and collection of ad valorem real property taxes. Plaintiff Daar and his company owned real property and paid the taxes assessed on it by Los Angeles County. He then sued county officials for a refund of those taxes, for himself and “all persons and entities similarly situated.” (Daar v. Alvord, supra, 101 Cal.App.3d at p. 482.) That part of the suit was not at issue. What was in play was the cause of action for injunctive relief under section 526a “to prevent the defendants from expending those funds constituting the assertedly excessive taxes collected by defendants and, further, to require defendants to impound those funds pending resolution of the matter,” namely, Daar’s claim that officials were refusing to apply Proposition 13’s 1 percent cap to the unsecured portion of the assessment roll. Daar appealed from the trial court’s denial of a preliminary injunction. (Daar v. Alvord, supra, 101 Cal.App.3d 480 , 482-483.)

Daar’s reliance upon section 526a was countered by the defendants invoking “the long established principle, recognized both in the California

The Daar court used the word “standing” only once, and that obliquely, in a quote from the Supreme Court. (See Daar v. Alvord, supra, 101 Cal.App.3d 480 , 484, quoting the excerpt from Blair v. Pitchess, supra, 5 Cal.3d 258 , 267-268 set out ante.) Nevertheless, the clear import of its reasoning was that Mr. Daar and his company, as taxpayers liable for real property taxes, lacked standing to seek a prepayment adjudication of the legality of that tax. That is how it was construed in McKendry v. County of Kern (1986) 180 Cal.App.3d 1165 , 1168 [ 226 Cal.Rptr. 45 ], the sole reported decision citing Daar.

The obvious relevance of Daar here is the conclusion that section 526a cannot be used to challenge collection of taxes a plaintiff may believe is illegal. But Daar was not the simple collision of that statute and article XIII, section 32. Equally prominent was Revenue and Taxation Code section 4807, which parallels the language of the constitutional provision. Because we believed this point was not adequately addressed in the briefs already on file, we solicited supplemental briefing from the parties. Armed with this additional input, we conclude that Daar is not controlling here.

It must be remembered that Daar involved real property taxes. These were clearly deemed of sufficient importance to the functioning of local government that the Legislature enacted Revenue and Taxation Code section 4807 replicating the constitutional rule of article XIII, section 32 prohibiting efforts to enjoin the collection of such taxes by cities and counties. And it is that statute that is key to a proper understanding of Daar v. Alvord. As far as we can determine, that statute is unique in extending immunity to local taxing authorities. Every other statute extends immunity only to suits against the state or any administering state officer. (See Fish & G. Code, § 8064 [commercial fishing landing tax]; Rev. & Tax. Code, §§ 6931 [sales and use taxes], 8146 [motor vehicle fuel tax], 9171 [use fuel tax], 11571 [private railroad car tax], 1210.1 [insurance tax], 13682 [gift tax], 19381 [franchise and income taxes], 30401 [cigarette tax], 32411 [alcoholic beverage tax],

“We note that Government Code section 11440, by its express terms, does no more than permit judicial determination as to the validity of a regulation. The policy behind Revenue and Taxation Code section 10276 proscribes judicial interference in the tax collection process. No sound reason appears why an interested party should not have the question of a tax regulation’s validity determined, so long as the tax collector is not hindered in his duties thereby. State and federal courts are frequently, in one way or another, passing upon the validity of tax regulations after payment of the required tax. These determinations then affect taxpayers and tax collections in other pending and future cases. Rather than an impediment, such decisions must be considered as in aid of tax collection, for they tend to add certainty and conclusive legality to the process. They do no harm to the public policy expressed by section 10276.

“Care must be taken in judicial proceedings under Government Code section 11440 as they relate to such tax regulations, that the relief be limited in the statute’s language to ‘a judicial declaration as to the validity of’ the questioned regulation. . . . The relief afforded may not ‘prevent or enjoin’ or otherwise hamper present or future tax assessment or collection effort against the plaintiff or anyone, as proscribed by section 10276. It will be presumed that the governmental agency will respect a judicial declaration concerning a regulation’s validity. If it does not the taxpayer’s remedy lies in paying the assessed taxes and then commencing action based upon such invalidity for their refund.” (Pacific Motor Transport Co., supra, 28 Cal.App.3d 230 , 236.)

Pacific Motor Transport Co. is distinguishable on a number of points. Unlike the action here, it was an action against a state taxing agency. Unlike here, it involved a challenge to an administrative regulation. Unlike here, it was not a taxpayer action brought under section 526a, but a statutorily authorized challenge brought by parties who were actually subject to the tax. Further, it relied on an immunity statute that has subsequently been repealed.

The statute at issue in San Miguel was not a true taxing statute, in the sense that it did not itself generate revenue, but is more properly characterized as a statute allocating revenue already generated by other statutes. (See the text of Rev. & Tax. Code, former § 97.03, subd. (c), quoted in San Miguel, supra, 25 Cal.App.4th 134 , 141-142, fn. 5.) Even if the San Miguel plaintiffs had succeeded in having the statute overturned, the net effect would not have reduced homeowner’s property tax bill, or diminished the revenues available to any governmental unit. This would explain the absence of any effort to halt collection under the statute. The difficulties with the conclusion carried forward from County of Sonoma have already been addressed.

This review establishes that none of the authorities cited by plaintiff stands foursquare for the proposition that section 526a may be employed to challenge the validity of an actual taxing statute, much less that such a challenge can secure declaratory and injunctive relief prohibiting collection of that tax.

Why We Agree with the Trial Court That Plaintiff Lacks Standing to Prosecute This Action

It is a truism in criminal law that capital prosecutions receive special attention because “death is different.” (Gregg v. Georgia (1976) 428 U.S. 153 , 188 [ 49 L.Ed.2d 859 , 96 S.Ct. 2909 ].) So are taxes. They are the grease that makes the wheels of government go round. This inescapable reality was recognized long before section 526a was enacted in 1909. (Stats. 1909, ch. 348, § 1, p. 578.) In 1870, having served as Chief Justice of the California Supreme Court, Stephen Field penned these oft-quoted words for the United States Supreme Court: “It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public.” (Dows v. City of Chicago, supra, 78 U.S. 108 , 110 (Dows).)

These are not mere dusty words from a bygone age. Their pertinency has, if anything, increased as “the operations of government” have expanded exponentially to meet the demands of modem life. Justice Field’s words continue to be quoted by California courts—and the United States Supreme Court—to this day. (E.g., State Bd. of Equalization v. Superior Court (1985) 39 Cal.3d 633 , 638-639 [ 217 Cal.Rptr. 238 , 703 P.2d 1131 ]; Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277 , 283 [ 165 Cal.Rptr. 122 , 611 P.2d 463 ]; Modem Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d 720 , 731-732; Flying Dutchman, supra, 93 Cal.App.4th 1129 , 1136; Levin v. Commerce Energy, Inc. (2010) 560 U.S. _, _ [ 176 L.Ed.2d 1131 , 130 S.Ct. 2323 , 2330]; California v. Grace Brethren Church (1982) 457 U.S. 393 , 410-411, fn. 23 [ 73 L.Ed.2d 93 , 102 S.Ct. 2498 ].)

Not surprisingly, the law of tax remedies began with actual taxpayers trying to get refunds. Given the importance of a steady and predictable stream of income to states and local government, courts declined to act until the challenged tax had actually been paid. (E.g., Springer v. United States (1880) 102 U.S. 586 , 594 [ 26 L.Ed. 253 ]; State Bd. of Equalization v. Superior Court, supra, 39 Cal.3d 633 , 638-639 and decisions cited.) This was the genesis of the “Pay First Litigate Later” principle found in article XIII, section 32. Again, going back to Justice Field, a tax would be enjoined only in very rare

The rationale for this federal abstention is that a taxpayer lacks standing because the financial interest “shared with millions of others, is comparatively minute and indeterminable . . . remote, fluctuating and uncertain.” (Frothingham v. Mellon (1923) 262 U.S. 447 , 487 [ 67 L.Ed. 1078 , 43 S.Ct. 597 ] (Frothingham) (decided with Massachusetts v. Mellon).) “The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained.” (Frothingham, supra, at p. 487.) “The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” (Id. at p. 488; cf. Fairchild v. Hughes (1922) 258 U.S. 126 , 129 [ 66 L.Ed. 499 , 42 S.Ct. 274 ] (maj. opn. of Brandéis, J.) [“Plaintiff has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted.”].) The court deemed it “of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention.” (Frothingham, supra, at p. 487.)

The concerns behind article XIII, section 32, Dows, and the federal decisions about taxpayer standing are clearly germane even if they have not been codified. “ ‘The fear that persistent interference with the collection of public revenues, for whatever reason, will destroy the effectiveness of government has been expressed in many judicial opinions’ ” (State Bd. of Equalization v. Superior Court, supra, 39 Cal.3d 633 , 638-639, quoting Modern Barber Col. v. Cal. Emp. Stab. Com., supra, 31 Cal.2d 720 , 731) and has not lost any force. If anything, in these post-Proposition 13 times of restricting the ability of local government to develop new sources of revenue, interference could have even more drastic consequences.

The academic examinations of section 526a do not show that taxpayer actions have been allowed to challenge the validity of a tax or halt collections of revenue. And one of the studies, echoing Frothingham, in fact acknowledges the possibility that taxpayer actions could be used for improper reasons such as “challenging] political decisions” or “constant harassment of officials” leading to “vexatious litigation” that “may plague the courts when state taxpayers’ suits are brought before them.” (Note, California Taxpayers’ Suits: Suing State Officers Under Section 526a of the Code of Civil Procedure (1976) 28 Hastings L.J. 4777 , 496-497; see Collins & Myers, The Public Interest Litigant in California: Observations on Taxpayers’ Actions (1977) 10 Loy. L.Rev. 329 ; Frothingham, supra, 262 U.S. 447 , 487; cf. Com., Taxpayers’ Suits: A Survey and Summary (1960) 69 Yale L.J. 895 , 909-910 [“Taxpayers’ suits’ potential for harassment may encourage governmental immobility and inhibit progressive community action . . . and unduly burden city officials who must defend against such suits . . .”].) The examination of the California decisions undertaken above likewise shows the absence of a single reported instance where tax collection has been enjoined. Like the United States Supreme Court, we deem this precedential void of almost 140 years significant as circumstantial confirmation that such a power—subject to extraordinary exceptions as suggested in Dows—does not generally exist. (See Frothingham, supra, 262 U.S. 447 , 488.)

It is one thing to provide an opportunity for a person or entity to challenge the legality of a tax already paid. Indeed, that opportunity is commanded by due process. (See Batt, supra, 155 Cal.App.4th 65 , 71-73 and authorities cited.) However, that person or entity “may not go into court and obtain adjudication of the validity of a tax which is due but not yet paid.” (State Bd. of Equalization v. Superior Court, supra, 39 Cal.3d 633 , 638.) The City rightly insists that the “Pay First, Litigate Later” principle which is also embodied in article XIII, section 32, cannot be ignored. If plaintiff’s construction of section 526a is accepted, the taxpayer not actually subject to a tax will

In light of the foregoing, our independent review compels us to conclude that the trial court hit the nail on the head with its ruling that “Plaintiff lacks standing to sue. This Court may not grant injunctive relief to prevent tax collection.” “A lack of standing is a jurisdictional defect to an action that mandates dismissal.” (Cummings v. Stanley (2009) 177 Cal.App.4th 493 , 501 [ 99 Cal.Rptr.3d 284 ].) Because the trial court correctly reached this