City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino

Filed 11/30/05 City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CITY OF SAN BERNARDINO HOTEL/MOTEL ASSOCIATION, Plaintiff and Appellant, v. CITY OF SAN BERNARDINO, Defendant and Respondent.

E037069 (Super.Ct.No. SCVSS46722) OPINION

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Frank A. Weiser for Plaintiff and Appellant.

Arias, Lockwood & Gray and Christopher D. Lockwood for Defendant and Respondent.

This case comes before us with a lot of baggage ‑‑ which may be appropriate, as it concerns hotels and hotel operators.

Defendant, the City of San Bernardino (the City), like many other cities across the United States, wants to collect a tax on occupants of hotels (generically known as a hotel tax, a room tax, or an occupancy tax). Plaintiff, the City of San Bernardino Hotel/Motel Association (the Association), understandably does not like occupancy taxes. Thus, every time the City has adopted an occupancy tax, the Association has challenged it in court.

In a published opinion, this court struck down the City’s original occupancy tax as unconstitutionally vague. The City then revised its occupancy tax, hoping to remedy the defects we had identified. In an unpublished opinion, however, this court strongly suggested that the revised occupancy tax was still unconstitutionally vague. The City therefore revised its occupancy tax yet again.

Although the City had two strikes against it, it has at last hit a home run. In part IV, post, we will reject the Association’s contentions that the current occupancy tax is unconstitutional. In part III, post, we will hold that the Association has not established that it has standing to sue for a refund of taxes paid under a repealed version of the tax. Accordingly, we will affirm the judgment in favor of the City.

I

FACTUAL AND PROCEDURAL BACKGROUND

Some time before 1997, the City adopted a “Transient Occupancy Tax” (original tax ordinance). It required a “transient” who exercised the privilege of “occupancy” in a “hotel” to pay a tax equal to 10 percent of the rent for the occupancy (the terms in quotation marks being defined terms in the ordinance). The operator of the hotel was required to collect the tax from the transient, then pay it over to the City. (See City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997) 59 Cal.App.4th 237, 241, 246-247.)

The Association filed an action against the City to invalidate the original tax ordinance. It lost in the trial court but prevailed on appeal when we held that this ordinance was void because it was so vague as to violate due process. (City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino, supra, 59 Cal.App.4th at p. 250.) Among the defects we identified were that:

1. The definitions of “hotel” and “transient” were circular: “‘Hotel’ is defined to include structures used or intended to be used by ‘transients,’ and ‘transient’ is defined to be a person who exercises ‘occupancy,’ which is defined to be the use of a room in a ‘hotel.’” (City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino, supra, 59 Cal.App.4th at p. 249.)

2. Although the ordinance was aimed at transients, it appeared to apply to some permanent residents (City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino, supra, 59 Cal.App.4th at pp. 247-250): “[T]he present definition [of transient] would apply to persons occupying property for more than 90 days in some situations.” (Id. at p. 248.) “[T]he definition of ‘occupancy’ includes the right to use a hotel room for dwelling purposes . . . [but] the term ‘dwelling’ includes persons other than transients . . . . [Citation.]” (Id. at p. 249.)

Accordingly, in 1998, the City repealed the original tax ordinance and adopted a revised “Transient Lodging Tax” (former tax ordinance). The Association then filed this action against the City to invalidate the former tax ordinance. The trial court sustained a demurrer, without leave to amend. In 2000, in an unpublished opinion, we held that the Association should have been given leave to amend. Although we did not actually hold that the former tax ordinance was unconstitutionally vague, we did hold that there was a reasonable probability that the Association could state a cause of action to that effect. (City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (June 22, 2000, E025364) [nonpub.opn.] (hereafter E025364).) We pointed out three problems:

1. The definitions of “hotel” and “transient” were still circular: “‘Hotel’ . . . is defined as a lodging place which furnishes lodging to a ‘transient.’ But ‘transient’ . . . is defined as a person who obtains lodging space in a ‘hotel.’” (E025364, supra, [at p. 18].)

2. It was still unclear whether the ordinance applied to some permanent residents, i.e., during the first 90 days of the month-to-month rental of an apartment. (E025364, supra, [at pp. 18-20].)

3. It was unclear whether the tax was due, even on the first day of occupancy, without foreknowledge of whether the occupancy did ultimately last more than 90 days. (E025364, supra, [at p. 19].)

The City not unreasonably concluded that the former tax was “legally suspect.” Accordingly, on July 15, 2002, it repealed the former tax and adopted yet another revised “Transient Occupancy Tax” (current tax ordinance).

The Association responded by filing an amended complaint. The Association’s first cause of action seeks a declaratory judgment that the former tax ordinance is void for vagueness. The Association’s second cause of action seeks a declaratory judgment that the current tax ordinance, on its face, is likewise void for vagueness.^[1]

In connection with each cause of action, the Association seeks an injunction preventing the City from spending any of the money collected and requiring the City instead “to transmit to the California State Franchise Tax Board all monies collected . . . in order to insure that individual taxpayers who paid the tax be allowed sufficient opportunity to make refund claims, and that the balance of the funds for those who do not make such claims be held for use by the State of California.”

The City filed a demurrer. Concerning the second cause of action, it argued, among other things, that the current tax ordinance was not unconstitutionally vague. The trial court overruled the demurrer as to the first cause of action but sustained it as to the second cause of action, without leave to amend.

After some further litigation, the City filed a motion for judgment on the pleadings. It argued, among other things, that, even if the former tax ordinance was unconstitutional, the Association lacked standing to sue for a refund of taxes paid under it. The trial court granted the motion and, accordingly, entered judgment in favor of the City and against the Association.

II

THE ADEQUACY OF THE RECORD

Preliminarily, on our own motion, we questioned whether the Association had provided us with an adequate record.

The Association is claiming the trial court erred by granting the City’s motion for judgment on the pleadings. That motion, however, is not in the clerk’s transcript. The Association did designate it to be included, but for unknown reasons, it has not been. The City’s supplemental brief in support of the motion likewise is not in the clerk’s transcript. Once again, the Association did designate it, but the clerk was unable to find it in the court file. The Association is also claiming the trial court erred by sustaining the City’s demurrer. However, it has not included a reporter’s transcript of the hearing on the demurrer in the record.

“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.]” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) “Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. [Citations.]” (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)

The appellant’s duty is not satisfied merely by designating the necessary documents. If a document is in the court file, but the clerk fails to include it, the appellant must ask the clerk to rectify the omission. (Cal. Rules of Court, rule 12(b).) And if the document is missing from the court file, so that the clerk cannot include it, the appellant must file a motion for augmentation, attaching a copy of the document. (Cal. Rules of Court, 12(a); see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [“defendants should have augmented the record with a settled statement of the proceeding. [Citations.] Because they failed to furnish an adequate record . . . , defendants’ claim must be resolved against them”].)

The Association’s omissions fall short of good appellate practice. Nevertheless, we conclude that the record is adequate, albeit barely so. Both a demurrer and a motion for judgment on the pleadings present only questions of law. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1065.) Accordingly, we are not constrained by the grounds on which the trial court relied. Indeed, provided due process concerns are satisfied, we can even sustain a demurrer on grounds not raised below. (Ibid.) Here, we do not have the City’s motion for judgment on the pleadings, so we do not necessarily know all of the grounds on which the motion was made. We do, however, have the Association’s opposition; thus, we know at least some of the grounds as to which it had notice and an opportunity to be heard. We do not need the City’s supplemental brief, because, if there were any good arguments in it, we can consider them regardless of whether they were raised below. For the same reason, we do not need the reporter’s transcript of the hearing on the demurrer; although it would be nice to have it to make sure that the Association did not withdraw any arguments or make any damaging concessions, we may assume that, had the Association done so, the City would have requested augmentation. (See Cal. Rules of Court, rule 52.)

We therefore proceed to the merits of the appeal.

III

STANDING

The Association’s first cause of action challenges the former tax ordinance. To the extent that it seeks injunctive and declaratory relief, it is moot, because the City has repealed the former tax ordinance; the Association does not contend otherwise. To the extent that it seeks a refund, however, it is not moot. The Association therefore contends that it had standing to seek a refund.

“Generally, persons who have not paid the tax in question are barred from bringing suits for refund of that tax. [Citation.]” (Delta Air Lines, Inc. v. State Bd. of Equalization (1989) 214 Cal.App.3d 518, 526.) For example, in California, sales tax is imposed on the retailer, not the purchaser. (De Aryan v. Akers (1939) 12 Cal.2d 781, 783.) As a result (subject to exceptions not applicable here; see Delta Air Lines, Inc., at p. 526, and cases cited), a purchaser has no standing to assert that a sales tax is illegal. (De Aryan, at pp. 783-785.)

Here, under the former tax ordinance, the tax was payable by the “transient.” (Former San Bernardino Mun. Code, § 3.54.020.A.) The hotel operator was responsible for collecting the tax from the transient and remitting it to the City. (Former San Bernardino Mun. Code, §§ 3.54.030, 3.54.040, 3.54.075.) The trial court therefore ruled that the Association and its members had no standing to sue for a refund of the tax.

However, if an operator “fail[ed] or refus[ed] to collect the tax and to make . . . any report and remittance of the tax or any portion thereof,” the operator became personally obligated to pay the tax. (Former San Bernardino Mun. Code, §§ 3.54.060.A, 3.54.130.B.) Moreover, the former tax statute specifically allowed an operator to claim a refund, at least when “the person from whom the tax was collected was not a transient . . . .” (Former San Bernardino Mun. Code, §§ 3.54.033.B.) In our previous opinion, we held that an operator could also claim a refund under other circumstances, provided the operator (rather than the transient) had actually paid the tax, and further provided the denial of a refund would violate due process. (E025364, supra, [at pp. 8-9].) The Association therefore argues that its members were taxpayers and do have standing to sue for a refund.

The key case, which the trial court found to be controlling, is Scol Corp. v. City of Los Angeles (1970) 12 Cal.App.3d 805. There, a city imposed a “tipplers’ tax” on purchasers of alcoholic beverages, and it required retailers of alcoholic beverages to collect the tax. (Id. at p. 808-809 & 809, fn. 2.) The tax was eventually struck down as preempted by federal law. (Id. at p. 808)

In February 1969, Scol, a retailer, did not collect the tax from its customers; nevertheless, it paid $320, the amount of the tax it should have collected. At other times, it did collect the tax from its customers and did pay it over to the city. (Scol Corp. v. City of Los Angeles, supra, 12 Cal.App.3d at p. 810.) Scol then filed suit, seeking a declaration that the city was a constructive trustee of all the tax money, plus a refund of the $320. (Id. at p. 808.)

The appellate court held that Scol lacked standing, for two reasons. First, with respect to the money Scol had collected from its customers, the customers were the taxpayers, not Scol. (Scol Corp. v. City of Los Angeles, supra, 12 Cal.App.3d at p. 809.) Second, “[i]n making the payment of $320 . . . , Scol did not pay taxes collected by it; rather, Scol paid the monetary equivalent of those taxes in order to avoid possible further liability for its default in the performance of its duty to collect those taxes.” (Ibid.; see also id. at p. 810.)

With respect to taxes that members of the Association collected from their customers, Scol is on point. Although we may assume, without deciding, that the Association has standing to assert its members’ rights to a refund (but see County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 863-864; see also National Solar Equipment Owners’ Assn. v. Grumman Corp. (1991) 235 Cal.App.3d 1273, 1280-1281; Tenants Assn. of Park Santa Anita v. Southers (1990) 222 Cal.App.3d 1293, 1299-1304), as to these particular taxes, its members have no such right.

With respect to taxes for which members of the Association became individually liable, however, Scol is not controlling. In Scol, the $320 does not appear to have been a penalty the tax ordinance actually required Scol to pay: the court noted that Scol paid it to avoid unspecified “further liability”; it also distinguished the $320 from the “payments, required by the ordinance,” of the money Scol actually collected from customers. (Scol Corp. v. City of Los Angeles, supra, 12 Cal.App.3d at p. 811, italics added.) Thus, we do not understand the opinion to mean that, even if Scol had not paid the $320 tax imposed on its customers, and even if, as a result, it had had to pay a penalty imposed on it directly, it would not have had standing to seek a refund. Otherwise, no one would ever have standing to challenge a penalty imposed for failure to collect a tax ‑‑ not even when the law imposing both the penalty and the tax is void.

We therefore agree ‑‑ at least in principle ‑‑ that an operator would have standing to sue for a refund of any payments it actually made for which it was personally liable under the former tax ordinance. The complaint, however, never alleges that any member of the Association ever paid so much as a penny under the former tax ordinance. Thus, the complaint fails to allege that the Association has standing to seek a refund.^[2]

Moreover, the complaint does not actually pray for a refund. Rather, it prays for an injunction commanding the City “to transmit to the California State Franchise Tax Board all monies collected . . . in order to insure that individual taxpayers who paid the tax be allowed sufficient opportunity to make refund claims, and that the balance of the funds for those who do not make such claims be held for use by the State of California.” However, there is no allegation that any of the members of the Association were “individual taxpayers” who would be entitled “to make refund claims.”

Incidentally, even assuming some members of the Association have paid the tax, this would not give the Association standing to seek a refund of all taxes paid, even by nonmembers. That would violate the principle that only the taxpayer has standing to seek a refund. This is not a class action, and there is no statute specially conferring such standing on the Association. (Cf. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 560-567 [Unfair Competition Law gave nonprofit corporation standing to sue on behalf itself, its members, or the general public]; Anaheim Elementary Education Assn. v. Board of Education (1986) 179 Cal.App.3d 1153, 1156-1159 [statute giving union standing to sue on behalf of “members” referred to members of entire bargaining unit, not just members of union].)

The Association claims to have standing under Code of Civil Procedure section 526a (section 526a). Section 526a confers what is commonly known as “taxpayer standing.” It provides: “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 . . . 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.”

The trial court rejected the Association’s reliance on section 526a because it did not consider the Association’s members to be taxpayers. We reject it, too, but for a different reason: Section 526a does not create standing to challenge the legality of a tax. By its terms, it gives a taxpayer a remedy for an “illegal expenditure” of tax funds. (Italics added.) “The purpose of this statute . . . is to permit a large body of persons to challenge wasteful government action that otherwise would go unchallenged because of the standing requirement. [Citation.]” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240, italics added.) However, “the illegal governmental activity which is subject to taxpayer challenge in Code of Civil Procedure section 526a does not include activity characterized as illegal solely by reason of purportedly illegal tax collection.” (Daar v. Alvord (1980) 101 Cal.App.3d 480, 485-486.) “[E]ven assuming the illegality of the collection process, Code of Civil Procedure section 526a was not intended to be utilized in challenging that illegality.” (Id. at p. 487.)

Parenthetically, we also question the propriety of an injunction requiring the City to turn over funds to a nonparty (the Franchise Tax Board) so the nonparty can administer the payment of refunds. However, we need not decide that issue.

We conclude that the trial court properly granted judgment on the pleadings on the first cause of action.

IV

DUE PROCESS

The Association’s second cause of action challenged the current tax ordinance. The Association claims it is so vague as to violate due process because “the definitional section is hopelessly circular and appears to cause a tax to be due even in some genuine permanent residency situations.”

A. Additional Factual and Procedural Background.

The key provision of the current tax ordinance states: “For the privilege of occupancy in a hotel, each transient is subject to and shall pay a transient lodging tax . . . .” (San Bernardino Mun. Code, § 3.55.020.A, italics added.)

“Occupancy” is defined as “the use or possession, or the right to the use or possession, of a lodging space.” (San Bernardino Mun. Code, § 3.55.010.C, italics added.) “Hotel” is defined as “a commercial establishment furnishing lodging space in exchange for monetary compensation.” (San Bernardino Mun. Code, § 3.55.010.A. italics added.)

“Lodging space,” in turn, is defined as “one or more rooms used or intended to be used for dwelling or sleeping purposes.” (San Bernardino Mun. Code, § 3.55.010.B.)

“Transient” is defined as “a person who, for a period of thirty consecutive calendar days or less, exercises occupancy or is entitled to occupancy by reason of concession, permit, right of access, license or contract. Every such person shall constitute a ‘transient’ . . . until expiration of the thirty-day period unless such person has executed a written contract . . . provid[ing] for occupancy in excess of thirty consecutive calendar days and the contract cannot be terminated without providing at least thirty days advance notice.” (San Bernardino Mun. Code, § 3.55.010.G, italics added.)

B. Analysis.

We perceive no circularity in these definitions. Unlike the original and former tax ordinances, the definition of “hotel” in the current tax ordinance does not use the word “transient.” “Hotel” is simply defined in terms of a commercial establishment that furnishes lodging space. Nor does the definition of “transient” use the word “hotel.” “Transient” is defined in terms of a person who is entitled to “occupancy,” which in turn is defined in terms of the use or possession of a lodging space.

The Association objects that “lodging space” is defined in terms of rooms used “for dwelling or sleeping purposes.” It argues that this blurs the distinction between temporary and permanent living arrangements. However, whatever permanence the definition of “lodging space” giveth, the definition of “transient” taketh away. If a person has either (1) occupied a lodging space for more than 30 days, or (2) executed a written contract for occupancy of a lodging space for more than 30 days, he or she is not a transient. This sufficiently limits the application of the tax to temporary living arrangements.

Admittedly, as the Association points out, there is one situation in which the tax would apply to a potentially permanent living arrangement ‑‑ during the first 30 days that a person rents an apartment without a written lease. However, as we pointed out in E025364, supra, [at page 19], the Constitution does not prohibit the City from taxing a permanent living arrangement, provided it is reasonably clear that that is what it really intends to do. The fact that the current tax ordinance does apply in this particular situation is sufficiently clear. (City of Vacaville v. Pitamber (2004) 124 Cal.App.4th 739, 745 [“[u]nlike the ordinance in San Bernardino, . . . this ordinance . . . clearly states that a guest is a transient until the first 30 days have passed if he or she has no written agreement”]; Patel v. City of Gilroy (2002) 97 Cal.App.4th 483, 490-491 [“the hotel guest is invariably deemed to be a transient until the first 30 days have passed . . . . That the provision may require tax on a tenant’s rent for the first 30 days does not make it impermissibly vague”].)

The vice of the former tax ordinance, as we stated in E025364, supra, [at pages 20-21], was that the tax did not apply if a person ultimately stayed more than 90 days; thus, its present applicability depended on the occurrence of a future event. There is no such problem with the current tax ordinance.

We conclude that the trial court properly sustained the demurrer to the second cause of action.

V

EQUAL PROTECTION

The Association also contends that it could amend its second cause of action so as to state an equal protection challenge to the current tax ordinance.

The Association acknowledges that the “rational basis” test applies. (General Motors Corp. v. Tracy (1997) 519 U.S. 278, 297 [117 S.Ct. 811, 136 L.Ed.2d 761]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 233-234; City of Berkeley v. Cukierman (1993) 14 Cal.App.4th 1331, 1342.) “It is well settled that the power of a municipality to classify for the purpose of taxation is very broad. [Citation.] Tax classifications carry a presumption of constitutionality which can be overcome only by the most explicit demonstration that the classification is a hostile and oppressive discrimination against particular persons or groups. [Citation.] The party who challenges the constitutionality of a classification in a tax statute bears a very heavy burden; it must negate any conceivable basis which might support the classification. [Citations.]” (City of Berkeley, at p. 1342.)

Once again (see part IV, ante) the Association points out that the tax applies during the first 30 days that a person rents an apartment without a written lease. It argues that it is irrational to distinguish between persons with and without a written lease, particularly as this distinction is “directly related to the financial means of the occupant.”

The Association relies on Britt v. City of Pomona (1990) 223 Cal.App.3d 265. There, a city’s transient occupancy tax applied to persons who occupied hotels but not houses or apartments. (Id. at pp. 274-275.) It applied regardless of how long the occupancy continued ‑‑ even if it was permanent. (Id. at pp. 269-270 & 270, fn. 1.) However, it did not apply to persons who had a “tenancy contract.” (Id. at p. 273.)

The court held that the distinction between an occupant of a hotel and an occupant of a house or an apartment violated equal protection. (Britt v. City of Pomona, supra, 223 Cal.App.3d at pp. 275-278.) It explained: “[T]he taxes at issue . . . make a classification which, from the standpoint of the plaintiffs and the other persons required to pay those taxes, is not reasonable. While plaintiffs’ circumstances (economic or otherwise) may prevent them from renting apartments and houses, their basic needs are the same as those of persons who do live in these more traditional forms of housing and who do not have to pay the taxes.” (Id. at p. 277.)

The court added: “[T]he transient occupancy tax[es] fail . . . because they have no time element which defines when a person is no longer a transient. Thus, a person who resides in a ‘hotel’ with an intention of living there indefinitely is as subject to the tax as is one who intends to live there for only a short period of time. Further, as noted above, some persons who are truly transient can be exempted from the tax simply by paying their lodging fees on a tenancy basis.” (Britt v. City of Pomona, supra, 223 Cal.App.3d at p. 277, fn. omitted.)

Finally, it rejected the city’s proffered governmental objectives: “[T]he City states that it wishes to (1) maintain the integrity of its overall zoning plans to avoid environmental pollution and population pollution and (2) discourage long-term occupancy of transient-type accommodations because of (unspecified) health and safety problems which result from continued use of facilities which were not designed to be used at length. However, its prescription for doing so logically fails since not all residents of ‘hotels’ have to pay the tax. Some persons living in such accommodations will pay no transient occupancy tax if they have a tenancy arrangement . . . . In addition, the tax law does not prohibit persons from residing in ‘hotels’ for extended periods of time. Clearly, anyone with the financial ability to pay the tax can continue to reside in a ‘hotel’ indefinitely.” (Britt v. City of Pomona, supra, 223 Cal.App.3d at p. 278.)

We have certain reservations about Britt. It seems to have lost sight of the big picture. A tax applicable to occupants of hotels but not occupants of houses or apartments will overwhelmingly fall on short-term, temporary occupants rather than long-term, permanent occupants. There is an ample rational basis for taxing short-term but not long-term occupants. (Gowens v. City of Bakersfield (1961) 193 Cal.App.2d 79, 83-84; see generally Annot., Tax on Hotel-Motel Room Occupancy, 58 A.L.R.4th 274, 295-297, § 6[a], and cases cited.)

Even though there was not an absolutely perfect fit between these categories, the City could properly use the nature of the accommodation as a proxy for the duration of the occupancy. Under the rational basis test, a statute does not fail merely because it is over- or underinclusive. “‘[A] legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.’ [Citation.]” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 488, quoting McDonald v. Board of Election (1969) 394 U.S. 802, 809 [89 S.Ct. 1404, 1409, 22 L.Ed.2d 739].)

The court in Britt focused on the fact that the tax there applied to all residents of hotels, including permanent residents. Thus, it viewed the tax as discriminating between permanent residents of hotels and permanent residents of houses and apartments. But it did not. By its terms, it discriminated between all residents of hotels (mostly temporary) and all residents of houses and apartments (mostly permanent). The unconstitutionality of that is not immediately apparent.

For purposes of this case, however, we need not ‑‑ and we do not ‑‑ decide whether Britt is good law. Even assuming it is, the tax here does not discriminate between permanent residents of hotels and permanent residents of houses and apartments because, unlike the tax in Britt, it does have a “time element.” As a result, it discriminates between temporary residents and permanent residents, without regard to whether they reside in hotels, apartments, or houses. Britt indicated that this would be perfectly rational. Indeed, the Association does not argue otherwise.

Instead, the Association falls back on the same point it made earlier (see part IV, ante) ‑‑ that the tax applies during the first 30 days that a person rents an apartment without a written lease. It argues that it thereby discriminates between permanent occupants who have a written lease (who, the Association suggests, are wealthier) and permanent occupants who do not, a distinction that it argues is irrational under Britt.

We disagree. The City’s goal is to tax temporary occupants and not permanent ones. It could rationally choose to treat the first 30 days of occupancy without a written lease as temporary. Legally, the renter can terminate this occupancy on one rent period’s notice (Civ. Code, §§ 1944, 1946, 1946.1, subd. (b), 1946.5, subd. (a)); i.e., sometimes as little as one day, and almost never more than one month. Pragmatically, the absence of a written lease, when combined with the absence of even a minimal track record of continued occupancy, is evidence of a lack of permanence. Moreover, the absence of a written lease means that the City has no way of verifying that the occupancy is permanent, except by waiting to see whether the occupant stays at least 30 days. Under these circumstances, it is reasonable for the City to err on the side of imposing the tax.

The Association does not appear to claim that the current tax ordinance is unconstitutional because it discriminates on the basis of wealth. Out of an excess of caution, however, we note that this would not make it unconstitutional. “It is settled that wealth is not a suspect classification under the federal equal protection clause. [Citations.]” (City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 849, fn. 6.) The California Supreme Court has declined to decide whether wealth is a suspect classification under the state Constitution’s equal protection clause when no fundamental interest is concerned. (Serrano v. Priest (1976) 18 Cal.3d 728, 766, fn. 45.) Even if so, however, the classification here is not on the basis of wealth; it is on the basis of having or not having a written lease. A facially neutral law does not violate the state Constitution merely because it may fall more heavily on the poor. (City and County of San Francisco v. Garnett, at p. 849, fn. 6; Vehicular Residents Assn. v. Agnos (1990) 222 Cal.App.3d 996, 999-1001.)

In sum, it does not appear that the Association could amend its second cause of action so as to state a claim that the current tax ordinance violates equal protection. The trial court therefore did not err by sustaining the demurrer to the second cause of action without leave to amend.

VI

DISPOSITION

The judgment is affirmed. The City shall recover costs on appeal against the Association.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

GAUT

J.

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^[1] The Association also alleges that the current tax ordinance is vague as applied to its members and violates the commerce clause. It has not reiterated these contentions on appeal, and we deem them waived.

^[2] At oral argument, counsel for the Association claimed that after the judgment had been entered ‑‑ in fact, after the briefs on appeal had been filed ‑‑ the City had taken the position that some of its members still owed taxes under the former tax ordinance. He argued that, as a result, the Association’s claim for injunctive and declaratory relief was not moot. He also claimed that at least one of the Association’s members had paid such taxes, and hence the Association finally had standing to seek a refund. We decline to consider these claims. Subject to exceptions that have not been shown to apply here, we cannot consider events that occurred after entry of the judgment. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 330, pp. 371-372.) Such new developments may have some bearing on the future scope of the judgment as either res judicata or collateral estoppel, but they can have no bearing on this appeal.