Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 2002-065397
Siggins, J.
This case was returned to us by the California Supreme Court with directions that we vacate our prior opinion (Sohigian v. City of Oakland (Mar. 24, 2006, A103031) [nonpub. opn.] (Sohigian I)) and reconsider this case in light of O’Connell v. City of Stockton (2007) 41 Cal.4th 1061 (O’Connell). In light of O’Connell and the City of Oakland’s subsequent repeal of Municipal Code Chapter 9.56, we conclude the case is now moot. We therefore order our prior opinion vacated and dismiss the appeal.
BACKGROUND
In Sohigian I, the plaintiffs challenged the validity of Oakland Municipal Code section 9.56.010 (the Ordinance), which authorized the forfeiture of cars used by a person when they solicit prostitution or purchase controlled substances. We concluded, inter alia, that appellants Aram Sohigian and Sam and Carolyn Horton adequately stated an as-applied challenge to the forfeiture scheme under the Excessive Fines Clause of the Eighth Amendment. Accordingly, we reversed the trial court’s order sustaining the City’s demurrer as to that cause of action and in that respect reversed the judgment. The Supreme Court granted review of our decision and deferred briefing pending its decision in O’Connell.
We also reversed as to two additional causes of action with directions to dismiss them as moot on remand. In all other respects we affirmed the judgment.
In O’Connell the Supreme Court subsequently held that the City of Stockton’s vehicle forfeiture laws, which were nearly the same as the Ordinance challenged in this case, are preempted by state law. (O’Connell, supra, 41 Cal.4th atp.1065.)Following the court’s decision in O’Connell, the Oakland City Council repealed its forfeiture Ordinance.
At the City’s request, we take judicial notice of the Oakland City Council Ordinance that repealed Chapter 9.56 of the Oakland Municipal Code. (See Evid. Code, §§ 459, 452, subd. (b).)
ANALYSIS
In light of these developments, appellants’ challenges to the Oakland forfeiture law no longer present a justiciable controversy. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746-751.) “Courts do not decide abstract questions of law. An indispensable element to jurisdiction is that there be an actual controversy between parties who have an adversarial interest in the outcome of the litigation. As the California Supreme Court explained nearly a century and a half ago: ‘When questions are presented in good faith in the regular course of honest litigation, and are necessary to the determination of the case, we shall not hesitate to decide them; but it is no part of our duty to investigate and decide questions not regularly arising in the due course of litigation, for the gratification of the curiosity of counsel, or to serve some ulterior purpose of parties who choose to procure them to be raised against themselves by others who feel no interest in the contest.’ ” (Id. at p. 746.)
Appellants assert the case is not moot because as taxpayers they have standing to compel the equitable remedies of restitution and constructive trust on behalf of third parties allegedly harmed by the forfeiture scheme, “to prevent the City from being unjustly enriched through its unlawful enforcement of the Ordinance, on its face and/or as applied.” We disagree. Code of Civil Procedure section 526a allows taxpayers to maintain actions “to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a . . . city. . . .” (§ 526a.) While section 526a is liberally construed to achieve its purpose of controlling illegal governmental activity (Van Atta v. Scott (1980) 27 Cal.3d 424, 447; Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268), appellants cite no cases that construe it to authorize actions to compel governments to pay restitution to third parties to compensate them for government’s past wrongs. Nor would such an interpretation comport with the language and purpose implicit in the taxpayer standing provision. Rather than “restraining and preventing” illegal expenditures of municipal assets, the relief appellants now claim to seek would compel, rather than prevent, the expenditure of public funds; and, since the Ordinance has been repealed, there is no prospect this suit will prevent further illegal expenditures, waste or injury. Section 526a cannot be stretched so far beyond its purpose.
Appellants concede that they have not hitherto sought restitution or constructive trust remedies during the extensive course of this litigation.
The cases that appellants cite in support of their third party restitution theory are inapposite. County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533 was an action by the county itself, not a taxpayer suit, and concerns the availability of restitution to, not from, the county. Wirin v. Parker (1957) 48 Cal.2d 890 concerns a taxpayer suit to enjoin a city’s expenditure of funds to conduct allegedly unconstitutional police practices. Kehoe v. City of Berkeley (1977) 67 Cal.App.3d 666 was a taxpayer suit to enjoin the city government from issuing purportedly illegal demolition permits. In none of these cases was Code of Civil Procedure section 526a used to compel, rather than enjoin, the expenditure of municipal funds, and none hold it to authorize the payment of public funds to non-parties to the litigation who were allegedly injured by illegal government acts.
Appellants also urge this court to reach the merits of their procedural due process challenges to the now repealed Ordinance, despite its repeal, because there is no published California authority on the issues raised in their suit. They argue that “[i]f, as expected, the Legislature overrides O’Connell, ”Oakland and other cities “will be permitted to return to the identical extortionistseize-and-settle practices which this Court, in its original opinion, concluded were violative of the excessive fines clause.” Appellant’s request is nothing short of a request to review ordinances that are not on the books in the hope this court will issue an opinion that will prevent them from ever being enacted. It would be highly inappropriate for this court to engage in so purely speculative an exercise. The case must be dismissed as moot.
DISPOSITION
The appeal is dismissed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.