State Board of Equalization v. Superior Court

Opinion

PARAS, J.

In this proceeding for extraordinary relief, petitioner challenges as an abuse of discretion respondent court’s order denying petitioner’s motion to strike the amended complaint of real party in interest and overruling petitioner’s demurrer thereto. The underlying

[570]

action was brought by Petroleum Contractors, Inc., real party in interest, against petitioner, seeking the recovery of sales taxes which real party assertedly overpaid to its vendors who, in turn, overpaid petitioner.

As initially filed, the only parties to the underlying action were petitioner and real party. Petitioner had successfully moved for summary judgment on the ground that real party, in its status as a purchaser rather than a retailer, was not the taxpayer and thus lacked standing to sue for refund of sales tax reimbursement paid, or to be paid, to its vendors, the actual taxpayers. Respondent court, however, upon granting summary judgment, also granted real party leave to file an amended cross-complaint to bring itself within the rule of

Javor

v.

State Board of Equalization

(1974) 12 Cal.3d 790 [117 Cal.Rptr. 305, 527 P.2d 1153], which case declares a limited exception to the general rule prohibiting suits for tax reimbursement by anyone other than the taxpayer. Petitioner contends that the amended complaint, which joined as codefendants real party’s vendors, failed to allege circumstances which would bring into play the

Javor

exception, and so contended in its motion to strike and its demurrer. Petitioner also urges the amended complaint is barred by noncompliance with the rule requiring exhaustion of administrative remedies' precedent to the filing of suit. (See,

Abelleira

v.

District Court of Appeal

(1941) 17 Cal.2d 280, 293 [109 P.2d 942, 132 A.L.R. 715].) The contentions are valid; the trial court’s refusal to grant petitioner relief, as sought, was an abuse of discretion.