Balikov v. SOUTHERN CALIFORNIA GAS COMPANY

Opinion

LILLIE, P. J.

Raymond Balikov appeals from judgment entered dismissing his complaint against Southern California Gas Company (the Gas Company), following the sustaining, without leave to amend, the demurrer of the Gas Company. Balikov contends the court erred, because Public Utilities Code section 799, subdivision (a)(4), does not apply and because Los Angeles Municipal Code section 21.1.5 does not provide for imposition of a tax on the subject charges.

Statement of Facts and Procedural History

On February 9, 2000, Balikov, an individual, on behalf of himself and all others similarly situated and on behalf of the general public filed a complaint for breach of contract, negligence, negligent misrepresentation, fraud, an accounting, unfair and unlawful business practices, and unjust enrichment against the Gas Company and City of Los Angeles. It was alleged, in pertinent part, to be a class action lawsuit on behalf of the general public and all persons and entities who use or have used the Gas Company as their gas provider and who have been improperly charged money by the Gas Company on the State Regulatory Fee and the CARE Fund Surcharge, which the Gas Company represented as a Los Angeles City User Tax, when in fact no such tax is authorized by the Los Angeles Municipal Code.

It was further alleged that Los Angeles Municipal Code section 21.1.5 provides that the gas user tax shall be imposed “at the rate of 10 percent of the charges made for such gas . . .” and that the code does not provide that the tax be imposed on the “State Regulatory Fee,” nor does it provide that the tax be imposed on the “CARE Fund Surcharge.” Nevertheless, the Gas Company imposes a charge on its Los Angeles customers, which it calls a Los Angeles City User Tax, which improperly includes a 10 percent charge on the State Regulatory Fee and the CARE Fund Surcharge, in addition to the Los Angeles City User Tax imposed on the charges made for gas. It was also alleged that the Gas Company has turned over to the City of Los Angeles the money it improperly charged its Los Angeles customers.

[819]

It was additionally alleged that on or about January 26, 1999, the Gas Company improperly charged Balikov $11.57 as a Los Angeles City User Tax, which amount included 10 percent of his gas charges, as well as 10 percent of the State Regulatory Fee and the CARE Fund Surcharge. The complaint sought, inter alia, an injunction requiring the Gas Company to calculate the amount charged for the Los Angeles City Gas User Tax by not including the CARE Fund Surcharge and State Regulatory Fee in the tax base used for the calculation. The complaint also sought recovery of alleged overcharges.