Opinion
F087177
09-24-2024
KIRK CARLISLE, Plaintiff and Appellant, v. COUNTY OF KERN et al., Defendants and Respondents
Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Kitty K. Szeto, and Ryan A. Crist for Plaintiff and Appellant. Margo A. Raison, County Counsel, and Andrew C. Hamilton, Deputy County Counsel, for Defendant and Respondent County of Kern.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BCV-23-100904 Thomas S. Clark, Judge.
Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Kitty K. Szeto, and Ryan A. Crist for Plaintiff and Appellant.
Margo A. Raison, County Counsel, and Andrew C. Hamilton, Deputy County Counsel, for Defendant and Respondent County of Kern.
No appearance for defendant and respondent Kern County Public Works.
No appearance for defendant and respondent Kern County Board of Supervisors.
OPINION
DETJEN, Acting P. J.
Plaintiff Kirk Carlisle appeals from a November 15, 2023 judgment of dismissal following the sustention of a demurrer without leave to amend. In the relevant complaint, Carlisle asserted he and "all residential property owners in Kern County" subject to an illegal "Land Use Fee" "imposed, increased, and extended" by defendants County of Kern (County), Kern County Public Works (Public Works), and the Board of Supervisors of the County of Kern (Board) were entitled to refunds as well as declaratory and injunctive relief.
The record shows the Land Use Fee is also known as the "Solid Waste Management Program Service Charge." For brevity, we utilize "Land Use Fee" in this opinion.
We conclude the superior court properly sustained the demurrer and affirm the judgment.
BACKGROUND
Since this is an appeal from a dismissal following a demurrer, our summary of the factual background is based on the allegations in the operative complaint without concern for proof problems and on the documents the superior court judicially noticed. (Gordon v. Law Offices of Aguirre &Meyer (1999) 70 Cal.App.4th 972, 975, fn. 2.)
I. Facts pleaded in the operative complaint
County's solid waste management system is financed by a "Solid Waste Enterprise Fund," which has three primary revenue sources: (1) "Gate Fees" charged at landfill or transfer stations; (2) monthly "Bin Fees" paid by commercial customers to refuse haulers; and (3) the Land Use Fee charged "on the tax roll to all occupied residents of the County." Classified as a "Property-Related Fee" since the implementation of Proposition 218, the Land Use Fee "account[s] for residential users' cost of trash disposal" and "[is] based on an average user's yearly cost if they hauled their household trash to the landfill and paid the Gate Fee each time."
Proposition 218-also known as the "Right to Vote on Taxes Act"-was approved by voters in 1996 and added articles XIII C and XIII D to the California Constitution. Article XIII D places restrictions on assessments and property-related fees. (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 380-381.)
In the years preceding 2021, "the rate of illegal dumping and the number of encampments from unhoused individuals in [the] County . . . significantly increased." In 2019, Public Works reported "cleaning 4,860 different sites, including 769 tons of waste (including 1,140 mattresses) and 113 encampments." As a result, Public Works "hired a crew [to] 'drive[] throughout [the] County collecting waste illegally dumped on the sides of the road, in the road right-of-way, from encampment locations and waste reported on work orders from the public.'" In 2020, Public Works reported "clean[ing] 2,468 different sites, including 498.54 tons of waste, 530 mattresses, and 79 encampments," and "clear[ing] 1.4 million pounds of improperly discarded material."
In 2021, as a "potential solution" to "increase revenue for general clean-up services within the road right of way across the County," Public Works proposed Ordinance No. G-9009 to the Board. The ordinance called for annual charges of $105 for "[o]ne to four residential units" (boldface omitted) and $84 for "[f]ive or more residential units" (boldface omitted) for the 2021-2022 fiscal year, "a . . . 27% increase" "estimated to cost residents approximately $6,300,00.00." "In May 2021, a Proposition 218 hearing was held," but "there was no discussion of how the increases were directly related to residential parcels or proportional to any benefits conferred on those parcels." Thereafter, on May 25, 2021, Ordinance No. G-9009 was unanimously passed and adopted by the Board. "Additional funds secured from the Land Use Fee increase were diverted to pay for and maintain the 'Removing and Preventing Illegal Dumping' [RAPID] Program," which "was implemented to patrol roadways for illegal dumping and clear encampments for unhoused individuals across the entire County at large." "Defendants did not apportion the Land Use Fee based on the residents' usage, benefit, or relationship to this service. Instead, the Land Use Fee is collected from . . . County residents in a blanket fashion, then redistributed to pay for general cleanup across the County." "[R]esidential owners are now paying for other people's illegal dumping, even if they did not generate the trash themselves or contribute in any way to the waste." (Italics omitted.) Hence, "the Land Use Fee, while labeled a Property Related Fee, is not actually related to property ownership, nor is it a service with a special benefit provided to the individual resident property owner, as required under Proposition 218."
"An agency seeking to impose or increase a property-related fee must hold a hearing and send written notice of the hearing to the owner of each affected parcel." (Plantier v. Ramona Municipal Water Dist., supra, 7 Cal.5th at p. 381, citing Cal. Const., art. XIII D, § 6, subd. (a)(1).)
In 2022, there was a proposal to further raise the Land Use Fee to $180 annually for "[o]ne to four residential units" and $144 annually for "[f]ive or more residential units," "a . . . 71.4%" increase estimated to bring $98,939,444 in revenue. On January 25, 2022, a Proposition 218 hearing was held. According to one Board member and Public Works' director, "the impetus for these rate increases was to comply with Senate Bill [No.] 1383 [(2015-2016 Reg. Sess.)], which imposed mandatory organic waste disposal procedures to eliminate the methane buildup from landfills." However, Public Works' presentation to Board indicated "only a small portion of the additional funds generated from the Land Use Fee were related to compliance with Senate Bill [No.] 1383 [(2015-2016 Reg. Sess.)], such as the construction of a composting facility in Shafter" and "green waste disposal technology." "The . . . Public Works['] Director . . . advised the Board . . . the Solid Waste Enterprise Fund [would] run[] out of money in the 2022 to 2023 fiscal year" (notwithstanding the 2021 rate increases) and raising the Land Use Fee (as well as the Gate and Bin Fees) was the most viable" 'way for coming up with more money.'" "[T]he overwhelming majority of the funds [to be] derived from the [newly proposed] rate increases were expressly aimed to compensate for prior deficit spending, pay salaries, provide general services, and [to support] dozens on dozens of general capital projects throughout the County that were unrelated to composting or [Senate Bill No.] 1383 [(2015-2016 Reg. Sess.)]." Approximately 35.5 percent of the expected revenue would be apportioned to" 'Capital Projects,'" i.e., "upgrades, operation, and maintenance of currently existing facilities, not construction of new facilities." The remaining amount "would be budgeted for County-wide 'Salaries' . . . and 'Services and Supplies,'" which "largely constituted cash paid out for services and contractors to maintain the entire ongoing operation, not capital projects." The RAPID Program would receive "a substantial (yet discrete) increase to its operation" because contributions thereto were "tethered" to "all future increases to the Land Use Fee." Money would also go toward landfill contracts, the cost of which grew by 25 percent. A financial forecast "for the following 10 years" provided by Public Works anticipated allocations would be reduced for" 'Capital Projects'" and increased for" 'Salaries' "/" 'Services and Supplies.'" "On February 8, 2022, the Board . . . enacted the proposed increases." "Once again, the 2022 increase to the Land Use Fee is neither related to property ownership nor is the service a special benefit to the individual property owner, as required under Proposition 218."
In his opposition to County's demurrer, Carlisle clarified" 'Capital Projects'" referred to "trash facilities."
"In May of 2022, shortly after the Land Use Fee was increased a second time, a potential member of the putative class presented the County clerk with a challenge to the Land Use Fee, alleging the same constitutional violations under Proposition 218. In response, the County clerk advised the putative class member that if a refund of the Land Use Fee was sought, a Government Code [section] 910 form was the proper method to obtain it."
Carlisle, a County resident, "has paid" the Land Use Fee since at least March 24, 2020, and "will continue to have to pay the Land Use Fee increases at issue."
II. Judicially noticed facts
Ordinance No. G-9009, which was unanimously passed and adopted by the Board on May 25, 2021, became effective June 25, 2021.
On February 8, 2022, the Board-with four "aye[]" (capitalization omitted) votes and one member absent-passed and adopted Ordinance No. G-9084, which superseded and replaced Ordinance No. G-9009. Ordinance No. G-9084 took effect March 11, 2022, and new rates took effect July 1, 2022. The Board set rates at $160 annually for one to four residential units and $128 annually for five or more residential units "with acknowledgement that [it] may increase these rates in future years" to $180 and $144, respectively.
On March 27, 2023, pursuant to Government Code section 910, a claim against County was filed on behalf of Carlisle and "all residential property owners" for "a refund of monies obtained via the Land Use Fee ...." The claim form was signed by Carlisle's attorney. On May 12, 2023, County denied the claim "by operation of law."
III. Causes of action
In the operative "CLASS ACTION" (boldface &underlining omitted) complaint, Carlisle contended "the increases to the Land Use Fee yield revenues that exceed the funds required to provide [a] property-related service; yield revenues used for a purpose other than that for which the fee or charge was imposed; exceed the proportional cost of the service attributable to the parcel; are imposed for a service that is not actually used by, or immediately available to, the owner of the property in question; and/or are imposed for general governmental services in violation of Proposition 218," namely, article XIII D, sections 3, 4, and 6 of the California Constitution. He raised three causes of action: (1) the refund of Land Use Fee payments "pursuant to the Government Claims Act, California Constitution, article, XIII, section 32, and other applicable law"; (2) declaratory relief "as to the validity and enforceability of rates set forth in Ordinances G-9009 and G-9084"; and (3) injunctive relief pursuant to Code of Civil Procedure section 526a.
IV. Demurrer
In September 2023, County filed its demurrer. It "generally" demurred to each of Carlisle's three causes of action on the grounds that he "fail[ed] to state a cause of action" and "the claim [was] barred by the applicable statute of limitations." In addition, County "specially" demurred to the complaint on the grounds that "class claims for a refund are barred by the Revenue and Taxation Code," and Public Works and Board "are improperly joined as defendants."
V. Ruling
On October 26, 2023, a hearing was held on County's demurrer. Thereafter, on November 15, 2023, the superior court filed an order sustaining the demurrer without leave to amend the complaint. It reasoned:
"[County]'s general demurrer to the First Cause of Action is sustained without leave to amend. Plaintiff was required to file a verified claim pursuant to the Revenue and Taxation Code and has not alleged that he did so and it does not appear that he can do so. Further, Plaintiff was required to pay the questioned fees under protest, which he did not do. Paying the fees and then submitting a Government tort claim months later is not complying with the requirement. Based on the language in the [operative] Complaint, Plaintiff will not be able to plead that he has done so. So, leave to amend would be futile."
The court was likely referring to Revenue and Taxation Code section 5097, subdivision (a)(1). (See at pp. 13-14, post.)
The court was likely referring to Health and Safety Code section 5472. (See at p. 10, post.)
"[I]t appears that refuse fees are covered by the procedure set forth in Government Code 66022. Plaintiff needed to file the action within 120 days of March 11, 2022."
"[T]he challenge to the ordinance adopting the new refuse fees had to be filed within 120 days of the effective date of the ordinance. Ordinance G-9084, by its terms, superseded and replaced Ordinance G-9009, so any challenge to that Ordinance G-9009 is moot. Ordinance G-9084 was effective March 11, 2022. Plaintiff's action needed to be filed within 120 days of that date.
"Because the Second Cause of Action alleges the actual controversy involves the validity of the ordinance, it would need to have been filed within the 120-day window. The general demurrer is sustained without leave to amend.
"The Third Cause of Action does not state a cause of action, only a remedy. Thus, the general demurrer is sustained without leave to amend."
At the October 26, 2023 hearing, the court also noted the third cause of action was "clearly based on the allegations of the first and second causes of action ...."
The complaint was dismissed with prejudice and judgment was entered in favor of County.
DISCUSSION
I. Standard of review
"A demurrer tests the legal sufficiency of the complaint. [Citation.] On appeal from a judgment of dismissal following an order sustaining a demurrer, we examine the complaint de novo in order to ascertain 'whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.' [Citation.] We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that can be reasonably inferred from those pleaded, and facts of which judicial notice can be taken. [Citation.] But we do not assume the truth of pleaded contentions and legal conclusions. [Citations.] And we may disregard allegations which are contrary to law or to a fact of which judicial notice may be taken. [Citation.]" (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1263.) "Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer." (Vaughn v. LJ Internat., Inc. (2009) 174 Cal.App.4th 213, 219.)
II. Analysis
a. First cause of action
i. Governing law
Below, Carlisle invoked section 910 of the Government Claims Act. Carlisle demanded a refund on the basis the Land Use Fee increases in 2021 (via Ordinance No. G-9009) and 2022 (via Ordinance No. G-9084) were unconstitutional. In sustaining County's demurrer as to the first cause of action, the superior court alluded to Health and Safety Code section 5472 and Revenue and Taxation Code section 5097, subdivision (a)(1). Given the facts pleaded and the facts judicially noticed, we conclude the Health and Safety Code is the applicable statutory scheme. That code incorporates provisions of the Revenue and Taxation Code.
The Government Claims Act "established a standardized procedure for bringing claims against local governmental entities." (Ardon v. City of Los Angeles (2011) 52 Cal.4th 241, 246; see Gov. Code, § 900 et seq.) However, that procedure does not apply to "[c]laims under the Revenue and Taxation Code or other statute prescribing procedures for the refund, rebate, exemption, cancellation, amendment, modification, or adjustment of any tax, assessment, fee, or charge or any portion of the charge, or of any penalties, costs, or related charges." (Gov. Code, § 905, subd. (a); see id., § 811.8.)
Health and Safety Code section 5471, subdivision (a) provides:
"[A]ny entity shall have power, by an ordinance or resolution approved by a two-thirds vote of the members of the legislative body thereof, to prescribe, revise and collect, fees, tolls, rates, rentals, or other charges for services and facilities furnished by it, either within or without its territorial limits, in connection with its water, sanitation, storm drainage, or sewerage system."
" 'Entity' means and includes counties, cities and counties, cities, sanitary districts, county sanitation districts, county service areas, sewer maintenance districts, and other public corporations and districts authorized to acquire, construct, maintain and operate sanitary sewers and sewerage systems." (Health & Saf. Code, § 5470, subd. (e).)
" 'Rates or charges' shall mean fees, tolls, rates, rentals, or other charges for services and facilities furnished by an entity in connection with its sanitation or sewerage systems, including garbage and refuse collection." (Health &Saf. Code, § 5470, subd. (f); accord, Padilla v. City of San Jose (2022) 78 Cal.App.5th 1073, 1078 (Padilla).) "A dictionary definition of sanitation is the 'prevention of disease by maintenance of sanitary conditions (as by removal of sewage and trash).' [Citation.]" (Padilla, supra, at p. 1078; see Doe v. Superior Court (2023) 95 Cal.App.5th 346, 356 ["Absent a statutory definition, we may turn to dictionaries to look for a word's usual, ordinary meaning."].)
These definitions undermine Carlisle's assertion Health and Safety Code section 5470 et seq. only apply to "sewage and water."
Next, Health and Safety Code section 5472 provides:
"After fees, rates, tolls, rentals or other charges are fixed pursuant to [Health and Safety Code section 5470 et seq.], any person may pay such fees, rates, tolls, rentals or other charges under protest and bring an action against the city or city and county in the superior court to recover any money which the legislative body refuses to refund. Payments made and actions brought under this section, shall be made and brought in the manner provided for payment of taxes under protest and actions for refund thereof in Article 2, Chapter 5, Part 9, of Division 1 of the Revenue and Taxation Code, insofar as those provisions are applicable."
A fee, rate, toll, rental or other charge is "fixed" where it is "adopted by 'an ordinance or resolution approved by a two-thirds vote of the members of the legislative body [of the local public entity]." (Padilla, supra, 78 Cal.App.5th at p. 1079, quoting Health &Saf. Code, § 5471, subd. (a).)
The facts pleaded in the operative complaint demonstrate the Land Use Fee is a charge for services and facilities furnished in connection with sanitation. That complaint alleged that the Land Use Fee is one of three revenue sources for the Solid Waste Enterprise Fund, which finances the County's solid waste management system. The Land Use Fee, which is charged "on the tax roll to all occupied residents of the County," was originally "based on an average user's yearly cost if they hauled their household trash to the landfill and paid the Gate Fee each time." Ordinances Nos. G-9009 and G-9084, which increased the Land Use Fee in 2021 and 2022, respectively, were each approved by over two-thirds of Board membership. After Ordinance No. G-9009 was adopted, the "[a]dditional funds secured from the Land Use Fee increase were diverted to pay for and maintain" the RAPID Program, which was implemented to collect waste illegally dumped on County's rights-of-way and clear homeless encampments "across the entire County at large." Later, Ordinance No. G-9084 further increased the Land Use Fee to ensure the Solid Waste Enterprise remained solvent for the 2022-2023 fiscal year to finance (1) the RAPID Program; (2) the creation of a composting facility and "green waste disposal technology" (in compliance with Senate Bill No. 1383 (2015-2016 Reg. Sess.)); (3) landfill contracts; (4) "upgrades, operation, and maintenance of currently existing [trash] facilities"; and (5)" 'Salaries'" and" 'Services and Supplies'" that "maintain the entire ongoing operation." Hence, Health and Safety Code section 5472- which prescribes procedures for the refund of fees pertaining to sanitation-controls.
Dwellings for the unhoused have been deemed likely to "lack adequate sanitation facilities" and "thereby expose [individuals] to disease and pestilence." (Hansen v. Department of Social Services (1987) 193 Cal.App.3d 283, 294, fn. omitted; see Health & Saf. Code, § 50001, subd. (b) [Legislature finding "lack of decent housing" a condition "which cause[s] an increase in, and spread of, disease and crime"].) Consequently, the clearing of these sites has been accepted as an appropriate measure for "reducing or preventing disease and crime and aiding and benefiting the health, morals and safety of the community." (The Housing Authority v. Dockweiler (1939) 14 Cal.2d 437, 450.)
On appeal, Carlisle contends Public Resources Code section 49040 (which incorporates the Government Claims Act) governs the matter. It reads:
"All claims for money or damages against the district are governed by Part 3 (commencing with Section 900) and Part 4 (commencing with Section 940) of Division 3.6 of Title 1 of the Government Code, except as provided therein, or by other statutes or regulations expressly applicable thereto." (Pub. Resources Code, § 49040.)
We are not persuaded. A "district" for the purpose of Public Resources Code section 49040 refers to a garbage disposal district (Waste Resource Technologies v. Department of Public Health (1994) 23 Cal.App.4th 299, 308), which may be formed by a county (see Pub. Resources Code, § 49000 et seq.). In his complaint, Carlisle did not allege any of defendants constituted or were otherwise involved in the formation and/or administration of such a district. Even if he did, Public Resources Code section 49040 contains an exception for "other statutes or regulations expressly applicable thereto." As we previously discussed, Health and Safety Code section 5472 prescribes procedures for the refund of sanitation-related fees, which are expressly applicable in the instant case.
ii. Propriety of sustaining demurrer
Given that Health and Safety Code section 5472 controls, Carlisle failed to meet his burden to show "the complaint alleged facts sufficient to establish every element of [the] cause of action." (Los Altos Golf &Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203 (Los Altos).)
Under Health and Safety Code section 5472, one who elects to seek a refund of a sanitation-related fee must satisfy the payment-under-protest requirement. (See Padilla, supra, 78 Cal.App.5th at pp. 1077-1078 [payment-under-protest requirement "a prerequisite to bringing an action for a refund"].) "Payment under protest means giving written notice to the entity imposing the charges, at the time payment is made, indicating the payor believes the charge is invalid and intends to seek a refund." (Id. at p. 1077, citing Brill v. County of Los Angeles (1940) 16 Cal.2d 726, 729.) One who pays the fee under protest can then "bring an action to recover any amount the entity has refused to refund, in accordance with division 1, part 9, chapter 5, article 2 of the Revenue and Taxation Code (§ 5140 et seq.), which governs refund actions." (Los Altos, supra, 165 Cal.App.4th at p. 205, italics omitted, citing Health &Saf. Code, § 5472.) Revenue and Taxation Code section 5140 provides:
Although the statute states "any person may pay such fees . . . under protest" (Health & Saf. Code, § 5472, italics added), the word "may" does not insinuate this "payment-under-protest language . . . is permissive, not mandatory." (Los Altos, supra, 165 Cal.App.4th at p. 206). "It is the challenge itself that is optional, not the method of raising that challenge." (Ibid.)
"The person who paid the tax, his or her guardian or conservator, the executor of his or her will, or the administrator of his or her estate may bring an action only in the superior court, but not in the small claims division of the superior court, against a county or a city to recover a tax which the board of supervisors of the county or the city council of the city has refused to refund on a claim filed pursuant to Article 1 (commencing with Section 5096) of this chapter. No other person may bring such an action; but if another should do so, judgment shall not be rendered for the plaintiff."
This final sentence of Revenue and Taxation Code section 5140 appears to preclude class action lawsuits. (See Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 962.)
"[F]iling an administrative claim under Revenue and Taxation Code section 5097 is a prerequisite to bringing an action for a refund under Revenue and Taxation Code section 5140 ...." (Neecke v. City of Mill Valley, supra, 39 Cal.App.4th at p. 963.) Revenue and Taxation Code section 5097 prohibits "[a]n order for a refund" unless-among other things-the refund claim is "[v]erified by the person who paid the tax, his or her guardian, executor, trustee, or administrator." (Rev. &Tax. Code, § 5097, subd. (a)(1); accord, California State University, Fresno Assn., Inc. v. County of Fresno (2017) 9 Cal.App.5th 250, 264.) Thus, under the relevant statutory scheme, before one can pursue a court action for a refund of a sanitation-related fee, he or she must (1) pay the fee; (2) at the time of payment, give written notice of his or her belief the fee is invalid and his or her intent to seek a refund; and (3) file a verified administrative claim for a refund that the entity subsequently denies. (See Los Altos, supra, 165 Cal.App.4th at p. 205 ["The plain language of [Health and Safety Code] section 5472 thus contemplates payment under protest, followed by an action if the payer is unable to secure a refund."].)
According to the complaint, the Land Use Fee increases took effect June 25, 2021, and July 1, 2022, respectively. Carlisle "has paid" the Land Use Fee since at least March 24, 2020, meaning he has also paid the updated rates since their inceptions. However, he never alleged he gave written notice to defendants at the time of the payments about his belief the Land Use Fee was invalid and his intention to obtain a refund. On appeal, Carlisle suggests he "paid (and continues to pay) under protest" (underlining omitted) because a Government Code section 910 claim form was filed on his behalf on March 27, 2023. Assuming, arguendo, a Government Code section 910 claim form establishes adequate written notice per Health and Safety Code section 5472, the complaint did not allege the form was submitted together with a Land Use Fee payment. Carlisle's "noncompliance with a mandatory prefiling procedure" (Padilla, supra, 78 Cal.App.5th at p. 1080) barred his court action for a refund. Because the complaint was not legally sufficient with regard to the first cause of action, County's demurrer was correctly sustained.
Having decided the superior court properly sustained the demurrer for the foregoing reason, we need not address other grounds for demurrer. (Padilla, supra, 78 Cal.App.5th at p. 1080.)
On appeal, Carlisle contends County was equitably estopped "from benefiting from" Health and Safety Code section 5472 because-in May 2022-a County clerk had advised "a potential member of the putative class" to file a refund claim pursuant to the Government Claims Act."' "Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury."' [Citation.]" (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37.) As noted, the facts pleaded in the complaint clearly demonstrated the Land Use Fee is a charge for services and facilities furnished in connection with sanitation, which is-in turn-subject to the refund procedures under Health and Safety Code section 5472. Hence, the nature of the Land Use Fee was "within [Carlisle's] knowledge" (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1316 (Steinhart)) and he cannot claim ignorance of this true fact. (See In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1061 ["Where one of the elements is missing, there can be no estoppel."].) Moreover, Carlisle was represented by counsel. "For purposes of analyzing estoppel claims, attorneys are 'charged with knowledge of the law in California'" (Steinhart, supra, at p. 1316), e.g., Health and Safety Code section 5472. "In general, the law 'particularly' disfavors estoppels 'where the party attempting to raise the estoppel is represented by an attorney at law.' [Citation.]" (Steinhart, supra, at p. 1316.)
Carlisle also maintains "[e]xhausting other administrative remedies would have been futile because [defendants] already rejected [his] claim." (Underlining omitted.) "Futility is a' "narrow exception"' to the doctrine requiring exhaustion of administrative remedies. [Citations.]" (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal.App.5th 1052, 1063.) As noted, Health and Safety Code section 5472's payment-under-protest requirement is a "mandatory prefiling procedure" (Padilla, supra, 78 Cal.App.5th at p. 1080), which "puts the entity on notice that a refund may eventually be required" (id. at p. 1077). Such a requirement "is not an administrative remedy" (Olson v. Manhattan Beach Unified School Dist., supra, at p. 1063) as it does not entail "administrative hearing procedures involving the exercise of administrative expertise and the creation of a reviewable hearing record" (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1156). Thus, the futility exception to the doctrine of exhaustion of administrative remedies cannot relieve Carlisle of his obligation to comply with the payment-under-protest requirement.
b. Remaining causes of action
With respect to his second cause of action, Carlisle sought "a declaration as to the validity and enforceability of rates set forth in Ordinances G-9009 and G-9084 in violation of California Constitution, article XIII D, §§ 3, 4, and 6" and "a permanent injunction directing Defendants to cease their illegal revenue scheme." With respect to his third cause of action, he sought "to enjoin Defendants from the illegal assessment of charges or fees in violation of California Constitution, article XIII D, §§ 3, 4, and 6." Both "incorporate[] by reference" the same allegations underlying Carlisle's refund action. As we previously discussed, the superior court properly sustained County's demurrer as to the refund action because the allegations in the complaint were not legally sufficient to support a valid cause of action. Since the remaining causes of action for declaratory and injunctive relief are "wholly derivative" of the refund action (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794, overruled in part on another ground as stated in Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2014) 225 Cal.App.4th 237, 255), County's demurrer as to those causes of action was correctly sustained.
Once again, having decided the superior court properly sustained the demurrer for the foregoing reason, we need not address other grounds for demurrer. (Padilla, supra, 78 Cal.App.5th at p. 1080.)
DISPOSITION
The judgment of dismissal is affirmed. Costs on appeal are awarded to defendant and respondent County of Kern.
WE CONCUR: FRANSON, J. PENA, J.