Filed 5/23/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

TOBIAS KAHAN,

Plaintiff and Appellant,

v.

CITY OF RICHMOND,

Defendant and Respondent.

 A150866

 (Contra Costa County

 Super. Ct. No. MSC16-01298)

Tobias Kahan purchased property in Richmond, California at a foreclosure sale. 

Shortly before the sale, the City of Richmond (City) had recorded a “special assessment” 

lien against the property for unpaid garbage collection fees, pursuant to a municipal 

ordinance. When Kahan later sold the property, he had to pay the delinquent garbage 

fees as well as administrative charges and escrow fees to obtain a release of the City’s 

lien. 

Kahan filed a class action lawsuit alleging the City’s practice of recording liens for 

unpaid garbage collection fees violates and is preempted by state law. Kahan contends 

the City has no authority to levy “special assessments” for garbage collection charges that 

are “user fees” under state law, and argues the ordinance purporting to authorize such 

assessments violates state laws on lien priority. He further contends that even if the 

practice is allowed, the City’s action violated its own ordinance because a garbage lien 

may not attach where a “bona fide encumbrancer for value” has placed a lien on the 

property at any time before the garbage lien is recorded. 

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II.E. and F. 
2

The trial court sustained general and special demurrers to each of the causes of 

action in Kahan’s complaint, granting leave to amend. Kahan chose not to amend his 

complaint and the trial court granted the City’s motion to dismiss with prejudice. This 

appeal followed. We affirm. 

I. BACKGROUND

Richmond Municipal Code section 9.20.110 provides that if a property owner fails 

to pay delinquent solid waste collection charges, the City may, after notice and hearing 

procedures, record a “special assessment against the property to which the service was 

rendered” to be included in the next property tax assessment. (Richmond Mun. Code,

§ 9.20.110, subd. (b)–(h).) “The assessment shall be collected at the same time and in the 

same manner as ordinary municipal taxes are collected. The assessment shall be 

subordinate to all existing special assessment liens previously imposed on the property. 

It shall have priority over all other liens except for those State, County and municipal 

taxes with which it shall have parity. . . . All laws applicable to the levy, collection and 

enforcement of municipal taxes shall be applicable to the special assessment.” (Id.,

subd. (i).) 

Pursuant to this ordinance, on January 8, 2014, the City recorded an assessment 

lien for unpaid solid waste collection service charges (garbage lien) against a residential 

property. Kahan alleges the City’s garbage lien was recorded “after the recordation of 

one or more bona fide mortgage encumbrances on the Subject Property.” On January 16, 

2014, Kahan purchased the property at a foreclosure sale. When he later sold the 

property on August 21, 2014, he was required to pay amounts demanded by the City, 

along with administrative charges and escrow fees, in order to obtain a release of the 

garbage lien. 

In August 2015, Kahan filed a notice of claim with the City on his own behalf and 

on behalf of an alleged class of similarly situated individuals and entities. The City sent 

Kahan a notice of claim deemed rejected, after which he filed this class action lawsuit. 

Kahan alleged causes of action for declaratory relief, injunctive relief, inverse 

condemnation, and negligence, seeking an injunction to stop the City from recording 
3

garbage liens on “encumbered property,” removal of existing garbage liens from 

“previously encumbered” properties, and a refund of all garbage collection charges, 

administrative fees, and escrow fees. Kahan’s negligence and inverse condemnation 

claims also sought damages arising from the City’s conduct. 

The City demurred to each cause of action in Kahan’s complaint on the grounds he 

failed to state a cause of action and the County of Contra Costa (County) was a necessary 

party to the lawsuit. (Code Civ. Proc., §§ 430.10, subds. (d) & (e).) First, the City 

argued it could impose the garbage lien under Government Code sections 25831 and 

38790.1, which authorize the City to convert unpaid, delinquent garbage fees to a 

“special assessment” and record a lien against the subject property to be placed on the 

secured property tax roll. The City contended that because the special assessments are 

collected in the same manner as ordinary county ad valorem property taxes, Kahan’s 

refund claim was subject to the procedures of the Revenue and Taxation Code section 

5096 et seq. Since Kahan failed to follow the required procedures and exhaust his 

administrative remedies, his refund claim must fail. Further, the City asserted Kahan was 

required to name the County as a necessary and indispensable party to the lawsuit, both 

because the party who collects the special assessment on the City’s behalf must be named

under Revenue and Taxation Code section 5146 and because the County was the only 

party that could provide Kahan the relief he sought. Among other things, the City also 

argued it was statutorily immune from Kahan’s causes of action for inverse 

condemnation and negligence. 

Kahan opposed the demurrer, arguing it must be overruled because the City’s 

arguments were all predicated on the legally incorrect premise that charges for garbage 

collection fees could be converted to “special assessments.” Because such charges are 

“ ‘user fees’ ” as defined under the California Constitution, Kahan argued, they could not 

be treated as special assessments or tax levies. Kahan further asserted Government Code 

section 25831 does not authorize the City to convert municipal garbage fees to special 

assessments and contended the City’s treatment of garbage fees as special assessments 

conflicts with the statewide lien priority statutes. Kahan also argued the governmental 
4

tort immunity statutes on which the City relied did not apply to Kahan’s negligence and 

inverse condemnation causes of action. 

The trial court issued a tentative ruling, which was contested. After hearing oral 

argument, the trial court ordered, in relevant part, as follows:

“1. For the reasons set forth in the Court’s tentative ruling on pages 6–9, the 

demurrers to the Complaint are sustained with leave to amend on the grounds that: 1) the 

County of Contra Costa is a necessary party for the requested relief (Part II.A); and 2) the 

complaint fails to state a cause of action for a refund of an assessment under Revenue & 

Taxation Code section 5096 et seq. (Part II.B). 

“2. The demurrer on the basis of immunity to the Third Cause of Action for 

Inverse Condemnation and Violation of Due Process and the Fourth Cause of Action for 

Negligence is sustained, with leave to amend, to the extent the complaint goes beyond 

seeking a refund. 

“[¶] . . . [¶]

“5. Plaintiff has until January 17, 2017 to file his amended complaint.” 

The trial court explained the demurrer was sustained with leave to amend for 

Kahan to add the County as a defendant because the injunctive relief sought required 

action by the County. As to compliance with the procedural requirements of the Revenue 

and Taxation Code, the trial court agreed with the City that Government Code section 

25831 authorizes counties to collect delinquent fees for garbage collection services as 

special assessments and Government Code section 38790.1 allows cities to collect such 

fees in the same manner as counties. The court rejected Kahan’s argument that the 

constitutional definition of “special assessment” conflicts with the statutory procedure for 

collection of garbage fees under Government Code section 25831. 

Though the trial court sustained the demurrers with leave to amend, Kahan did not 

amend within the time provided. The City moved to dismiss with prejudice, and the trial 

court entered a judgment of dismissal. Kahan appealed. 
5

II. DISCUSSION

A. Standard of Review

“We review the ruling sustaining the demurrer de novo, exercising independent 

judgment as to whether the complaint states a cause of action as a matter of law.” (Kan v. 

Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 740 (Kan).) “ ‘[W]e give the 

complaint a reasonable interpretation, reading it as a whole and its parts in their 

context.’ ” (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 

1139.) “When conducting this independent review, appellate courts ‘treat the demurrer 

as admitting all material facts properly pleaded, but do not assume the truth of 

contentions, deductions or conclusions of law.’ ” (Esparza v. Kaweah Delta Dist. 

Hospital (2016) 3 Cal.App.5th 547, 552.) 

Although we review the complaint de novo, “ ‘[t]he plaintiff has the burden of 

showing that the facts pleaded are sufficient to establish every element of the cause of 

action and overcoming all of the legal grounds on which the trial court sustained the 

demurrer, and if the defendant negates any essential element, we will affirm the order 

sustaining the demurrer as to the cause of action. [Citation.] We will affirm if there is 

any ground on which the demurrer can properly be sustained, whether or not the trial 

court relied on proper grounds or the defendant asserted a proper ground in the trial court 

proceedings.’ ” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490–

1491.) It is the trial court’s ruling we review, not its reasoning or rationale. (Orcilla v. 

Big Sur, Inc. (2016) 244 Cal.App.4th 982, 994; Kan, supra, 230 Cal.App.4th at p. 740.) 

We also review questions of statutory interpretation de novo. (MacIsaac v. Waste 

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082

(MacIsaac).) “We begin with the fundamental rule that our primary task is to determine 

the lawmakers’ intent.” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) In 

determining that intent, “ ‘we first look to the plain meaning of the statutory language, 

then to its legislative history and finally to the reasonableness of a proposed 

construction.’ ” (MacIsaac, at p. 1082.) 
6

B. The City Was Authorized to Record the Garbage Lien as a Special Assessment

Kahan contends the trial court erred in sustaining demurrers to each cause of 

action in the complaint because charges for garbage collection services are “user fees,”

which the City cannot “unilaterally” convert into “assessments.” Kahan also argues state 

law does not authorize the City to designate garbage fees as “special assessments,” as 

provided in its ordinance. Thus, Kahan asserts, the procedural requirements in the 

Revenue and Taxation Code, which apply only to refunds of taxes and assessments, do 

not apply to his claims. As we will explain, we reject these arguments because the City’s 

treatment of delinquent garbage fees as a special assessment was expressly authorized by 

statute. 

Government Code section 25831 provides, in relevant part, that “[a]ny fees 

authorized pursuant to Section 25830, or pursuant to Section 40059 of the Public 

Resources Code, that remain unpaid for a period of 60 or more days after the date upon 

which they were billed may be collected thereafter by the county as provided in this 

section.” Once statutory notice and hearing requirements have been met, Government 

Code section 25831, subdivision (d) provides the delinquent fees “shall constitute special 

assessments against the respective parcels of land and are a lien on the property for the 

amount of the delinquent fees.” The lien attaches when it is recorded, and the 

“assessment may be collected at the same time and in the same manner as ordinary 

county ad valorem property taxes are collected . . . .” (Ibid.) 

The fees that may be collected as special assessments include charges for garbage 

collection services. Government Code section 25830, subdivision (a) authorizes the 

county board of supervisors to “establish a schedule of fees to be imposed on land within 

the unincorporated area of the county and incorporated areas of the county where cities 

do not provide their own waste disposal sites, revenue from the fees to be used for the 

acquisition, operation, and maintenance of county waste disposal sites and for financing 

waste collection, processing, reclamation, and disposal services, where those services are 

provided.” (Italics added.) Authority for the City’s collection of such fees is provided in 

Government Code section 38790.1, which provides, “Any city collecting garbage fees or 
7

charges may collect delinquent fees or charges in the manner provided in Section 25831 

for counties.” Further, Public Resources Code section 40059 provides authority for cities 

and counties, among others, to “determine . . . [¶] . . . Aspects of solid waste handling 

which are of local concern, including, but not limited to, . . . charges and fees . . . .” (Id., 

subd. (a)(1).) Read together, these statutes expressly authorize the City to charge 

delinquent garbage fees as a “special assessment” against the parcel and as a lien on the 

property for the amount of the delinquent fees. 

Kahan’s argument that the fees authorized by these statutes are only to pay for

waste disposal sites is unavailing. As to Government Code section 25830, Kahan

contends the fees authorized by that statute are to pay only for the acquisition, operation,

and maintenance of county waste disposal sites where such services are provided and 

cities do not provide their own sites. While that is one of the two enumerated purposes of 

the fees, he ignores the express language of the statute that the revenue from the fees is 

also to be used for “financing waste collection, processing, reclamation, and disposal 

services.”1(Gov. Code, § 25830, subd. (a).) Where, as here, “the statutory language is 

clear and unambiguous, our task is at an end, for there is no need for judicial 

construction.” (MacIsaac, supra, 134 Cal.App.4th at p. 1083; Lennane v. Franchise Tax 

Bd. (1994) 9 Cal.4th 263, 268 [courts will not “ ‘ “interpret away clear language in favor 

of an ambiguity that does not exist” ’ ”].) 

We find similarly unpersuasive Kahan’s argument, raised for the first time at oral 

argument, that Government Code section 25830 allows only fees for acquisition and 

maintenance of landfills because the statute is located within article 2, entitled “Disposal 

Facilities.” First, we need not consider claims not raised in the parties’ briefs. (Collins v. 

 

1 Kahan did not address the meaning of this language in his briefs. At oral 

argument, when questioned three times about its plain meaning, Kahan’s counsel 

eventually offered that cities may help pay for county landfills by charging residents fees 

for services directed to that landfill. It remains unclear to this court how that argument, 

unsupported by any evidence of legislative intent, explains away the plain meaning of the 

words of Government Code section 25830, which state the revenue from fees may be 

used to finance waste collection services. 
8

Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1508, fn. 8.) Second, his argument fails on 

the merits. Though we may consider chapter, article, and section headings in construing 

statutes, we will not rely on the title of an article where, as here, the unambiguous express 

language of the statute dictates its meaning and application. (See, e.g., Calvillo-Silva v. 

Home Grocery (1998) 19 Cal.4th 714, 727, disapproved on other grounds in Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19; DaFonte v. Up-Right, Inc. 

(1992) 2 Cal.4th 593, 602 [“Title or chapter headings are unofficial and do not alter the 

explicit scope, meaning, or intent of a statute.”].) In any event, Government Code 

section 25830’s section heading, “Fees for waste disposal sites and services” (italics 

added), suggests it authorizes fees for waste disposal services.2 

But even if Government Code section 25830 did not apply here, Kahan does not 

directly address the fact that Government Code section 25831 also incorporates fees 

authorized by Public Resources Code section 40059. Kahan makes a cursory argument in 

his reply brief that Public Resources Code section 40059 is a part of the California 

Integrated Waste Management Act of 1989 (Pub. Resources Code, § 40000 et seq.), 

which “was enacted . . . to address the fact that ‘landfills throughout the state were nearly 

filled, and we were figuratively awash in our own trash.’ ” (Industrial Waste & Debris 

Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1140.) But he does not discuss

the plain meaning of the words in the statute allowing “each . . . city . . . [to] determine 

. . . [¶] . . . Aspects of solid waste handling which are of local concern, including, but not 

limited to frequency of collection, means of collection and transportation, level of 

services, charges and fees, and nature, location, and extent of providing solid waste 

 

2 Though we need not consult legislative history when statutory language is 

unambiguous, here it further supports our reading of the statute. In 1972, the original 

version of Government Code section 25830 was repealed and replaced by urgency 

legislation to correct the inadvertent omission from the 1971 statute of a provision 

allowing the charges to be used for financing waste disposal and collection services. 

(Stats. 1972, ch. 12, § 7, p. 13; Sen. Com. on Local Government, Staff Analysis of 

Assem. Bill No. 64 (1971–1972 Reg. Sess.) as amended Jan. 17, 1972.) 
9

handling services.” (Pub. Resources Code, § 40059, subd. (a)(1), italics added.) On its 

face, this statute authorizes cities to establish fees for garbage collection services. 

As for Government Code section 38790.1, Kahan contends it, too, was intended to 

defray the costs of landfills, not to provide for collection of garbage fees. Kahan’s claim 

is premised on his assertion that Government Code section 38790.1 “relates to the 

immediately preceding provision, Government Code section 38790, which provides in 

relevant part that ‘By gift, purchase, or condemnation any city may acquire land within 

the county where the city is located for garbage disposal sites and rights of way for 

roadways to the site.’ ” Kahan cites no legal authority for this argument, and points to 

nothing in the language of either statute suggesting these statutes are part of an integrated 

scheme. To the contrary, they were first adopted 23 years apart and neither section 

references the other. (Stats. 1949, ch. 79, § 1, p. 188 [adopting Gov. Code, § 38790]; 

Stats. 1972, ch. 175, § 2.5, p. 395 [adopting Gov. Code, § 38790.1].) Moreover, both 

provisions are part of article 7, “miscellaneous” statutes relating to city government, 

which covers a variety of items, including contracts for ambulance service and dog 

licenses. (Gov. Code, §§ 38790–38794.) Nothing links one of these provisions to the 

other, other than their placement in the same miscellaneous category. 

Kahan nonetheless argues “the plain meaning of [Government Code] 

Section 38790.1 is not clear and unambiguous,” and urges us to look to the legislative 

history to interpret the statute. But other than the unsupported argument it is related to 

the preceding section, Kahan has not explained why the language is ambiguous. To the 

contrary, it appears to us quite clear: “Any city collecting garbage fees or charges may 

collect delinquent fees or charges in the manner provided in Section 25831 for counties.” 

(Gov. Code, § 38790.1.) Nothing about that language restricts the fees to waste disposal 

sites, and as we have discussed above, the statutes cited in Government Code section 

25831 expressly authorize fees for garbage collection services. 

However, even were we to look to the legislative history of Government Code 

section 38790.1, as Kahan suggests, we must disagree with his premise. The bill 

adopting Government Code section 38790.1, Assembly Bill No. 2304 (1971–1972 Reg. 
10

Sess.), concerned “ ‘solid waste disposal fees,’ ” which were defined as fees “used to 

finance the collection and disposal of solid waste and the acquisition of solid waste 

disposal sites.” (Assem. Com. on Local Government, Analysis of Assem. Bill No. 2304 

(1971–1972 Reg. Sess.) Apr. 13, 1972, p. 1.) Assembly Bill No. 2304 was amended after 

it was introduced to add Government Code section 38790.1, giving cities the same 

authority to collect solid waste fees via the tax roll as counties under Government Code 

section 25831. (Assem. Bill No. 2304 (1971–1972 Reg. Sess.) as amended May 30, 

1972.) Kahan points to the fact that the amendment adding section 38790.1 was 

requested by the City of Orland, whose attorney stated it would have the effect of 

lowering the “cost of administering the [City of Orland’s] share of the solid waste 

disposal project in Glenn County.” This comment was made in a letter from the Orland 

City Attorney to Assemblyman Ray Johnson, after passage of the legislation. This 

single, postenactment comment by an attorney for a city to a legislator is not admissible 

or persuasive evidence of the Legislature’s intent in adopting it. (See, e.g., Kaufman & 

Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30, 

37–39 [“to be cognizable, legislative history must shed light on the collegial view of the 

Legislature as a whole”; postenrollment documents regarding bill and subjective intent 

reflected by statements of interested parties are not cognizable legislative history]; 

California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, 501 [views of 

individual legislator or staffer offered in documents created after statute has been enacted 

not properly considered part of a statute’s legislative history].) Further, the legislative

digest explains Assembly Bill No. 2304 provides a procedure for cities to levy and collect 

solid waste disposal fees to finance both the acquisition of landfill sites and the collection 

and disposal of solid waste.3 (Legis. Counsel’s Dig., Assem. Bill No. 2304 2 Stats. 1972 

(1971–1972 Reg. Sess.) Summary Dig., p. 26 [indicating bill “Revises collection 

 

3 The primary concern prompting the urgency legislation was to allow counties to 

collect fees in a timely manner to avoid the necessity of borrowing funds to finance 

collection services and disposal sites. (Stats. 1972, ch. 175, § 3, p. 395.) 
11

procedure for certain fees for waste disposal sites and for waste collection, processing, 

reclamation, and disposal services. Authorizes cities to collect delinquent fees or charges 

for garbage in same fashion as counties.”].) Kahan has not provided any cognizable 

evidence of legislative intent to circumscribe a city’s authority to collect fees only to 

finance landfills. 

Despite the clear statutory language authorizing the City to collect delinquent 

garbage fees as “special assessments,” Kahan contends the definitions of “tax,” 

“assessment,” and “user fee” under the California Constitution preclude the City from 

labelling these charges as special assessments. Under the Constitution, a tax is “any levy, 

charge, or exaction of any kind imposed by a local government, except, the following: 

[¶] (1) A charge imposed for a specific benefit conferred or privilege granted directly to 

the payor . . . . [¶] (2) A charge imposed for a specific government service or product 

provided directly to the payor . . . . [¶] . . . [¶] (7) Assessments and property-related fees 

imposed in accordance with the provisions of Article XIII D.” (Cal. Const., art. XIII C, 

§ 1, subd. (e)(1), (2), & (7).) An “ ‘Assessment’ ” is “any levy or charge upon real 

property by an agency for a special benefit conferred upon the real property.” (Cal. 

Const., art. XIII D, § 2, subd. (b).) A “ ‘Fee’ ” or “ ‘charge,’ ” on the other hand, is a 

“levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency 

upon a parcel or upon a person as an incident of property ownership, including a user fee 

or charge for a property related service.” (Cal. Const., art. XIII D, § 2, subd. (e).) Kahan 

urges us to apply these definitions to determine the City was prohibited from designating 

garbage fees as special assessments.

We decline to do so for several reasons. 

First, the definitions Kahan relies upon under article XIII D of the California 

Constitution relate to procedural requirements and restrictions on a local government’s 

authority to impose or increase revenue measures, not methods for collection of 

delinquent service charges. (See Apartment Assn. of Los Angeles County, Inc. v. City of 

Los Angeles (2001) 24 Cal.4th 830, 836–837 [explaining historical background of 

Prop. 218, which added art. XIII D to the Cal. Const.].) Kahan’s complaint does not 
12

allege violation of any of those constitutional provisions. Moreover, the definitions, 

including those for “assessments” and “fees,” are limited to use “in this article.” (Cal. 

Const., art. XIII D, § 2.) Kahan does not cite, and we are unaware of, any authority 

suggesting the constitutional definitions of those terms were intended to apply to statutes 

authorizing the collection of delinquent fees like Government Code section 25831. (See 

Howard Jarvis Taxpayers Assn. v. City of San Diego (1999) 72 Cal.App.4th 230, 236

[rejecting argument that definition of “assessment” in Prop. 218 provides a definition for 

all constitutional and statutory provisions]; Clary v. City of Crescent City (2017) 

11 Cal.App.5th 274, 295 [definition of “assessment” in art. XIII D does not establish 

meaning of that term for purposes of statute governing nuisance abatement].)

Second, Kahan relies heavily on Isaac v. County of Los Angeles (1998) 

66 Cal.App.4th 586 (Isaac) to argue the City could not treat delinquent garbage charges 

as special assessments, but if anything, that case supports the City’s position under the 

facts here. In Isaac, the court considered the validity of an ordinance adopted by the City 

of Los Angeles providing for the imposition of special assessment liens on apartment 

buildings for the collection of past due water and electric utility bills. (Id. at p. 591.)

Like the City’s ordinance in this case, the ordinance in Isaac allowed the city to record a 

lien securing the assessment against the subject real property, and provided the lien had 

priority over other liens and encumbrances against the property. (Id. at pp. 591–592.) 

The court first considered whether the utility lien imposed by the ordinance was a 

special assessment or a special tax for purposes of article XIII A of the Constitution, 

concluding it was neither a valid special assessment nor a special tax, but a user fee. 

(Isaac, at p. 598.) Critically, however, the court then observed, “the City [of Los 

Angeles] cannot impose the utility lien unless there are other legal grounds supporting 

its imposition.” (Ibid., italics added.) It explained: “Under the Civil Code, liens are 

created in two ways: (1) by operation of law, and (2) by contract. (Civ. Code, § 2881.) 

Liens arise by operation of law where there is a statute providing for the creation of a lien 

in a certain situation, as for example tax liens.” (Ibid.) Because there was no statutory or 
13

contractual basis for the utility lien in Isaac, the court determined the ordinance was 

invalid.

4

(Isaac, at pp. 598–599.) 

The absence of statutory authority for the utility lien in Isaac is the dispositive 

difference between that case and this one. Because Government Code sections 25831 

and 38790.1 expressly authorize the City to impose a lien for delinquent garbage fees, the 

City’s ordinance does not violate state law governing the creation of liens as did the 

municipal ordinance in Isaac. 

This analysis is further supported by Casteel v. County of San Joaquin (2005) 

134 Cal.App.4th 918. In Casteel, the plaintiff-property owner challenged a county 

ordinance authorizing collection of solid waste fees from nonresident property owners. 

The ordinance had been adopted pursuant to Government Code sections 25827 and 

25828, which like Government Code sections 25830 and 25831, allow counties to collect 

fees for solid waste collection and impose a special assessment for delinquent fees as a 

lien on the subject real property. (Casteel, at pp. 921–922.) Relying on Isaac, the 

plaintiff argued the ordinance was invalid because he had not contracted for the services. 

The court rejected that argument, explaining that “Government Code sections 25827 and 

25828 expressly authorize the collection of unpaid solid waste disposal fees by 

imposition of a lien on the property benefited by the service. . . . Isaac expressly 

recognized a lien created by operation of law arises ‘where there is a statute providing for 

the creation of a lien.’ ” (Casteel, at p. 924.) Similarly, here, Government Code sections 

25830, 25831, and Public Resources Code section 40059 authorize cities to collect 

unpaid garbage fees by means of a superpriority lien. 

Third, we reject Kahan’s argument because even if the delinquent garbage fees are 

more appropriately categorized as “user fees” than assessments, Kahan cites no authority 

that these distinctions apply to the Revenue and Taxation Code provisions which govern 

 

4 As we will discuss further below, the Isaac court also held the ordinance invalid 

because it was preempted by the statutory scheme governing the priority of liens on real 

property. (Isaac, supra, 66 Cal.App.4th at p. 594.) 
14

the procedures that must be followed in pursuing a refund of a tax or assessment. (See 

Rev. & Tax. Code, § 5096 et seq.) That statutory scheme includes its own definition of 

taxes and assessments. (See Richmond v. Shasta Community Services Dist. (2004) 

32 Cal.4th 409, 423 [“ ‘If the Legislature has provided an express definition of a term, 

that definition is ordinarily binding on the courts.’ ”].) Revenue and Taxation Code 

section 4801 defines “ ‘taxes’ ” to include “assessments collected at the same time and in 

the same manner as county taxes.” Government Code section 25831, subdivision (d), in 

turn, expressly provides the delinquent garbage fees “may be collected at the same time 

and in the same manner as ordinary county ad valorem property taxes are collected . . . .” 

Because the Legislature specifically determined delinquent garbage fees may be recorded 

as an assessment lien, and that lien may be collected at the same time and in the same 

manner as county property taxes, the procedures of the Revenue and Taxation Code apply 

to Kahan’s suit seeking a refund of those amounts. (See Hanjin Internat. Corp. v. Los 

Angeles County Metropolitan Transportation Authority (2003) 110 Cal.App.4th 1109, 

1112–1113 [definitional distinction between taxes and special assessments overridden by 

Rev. & Tax. Code, § 4801 and Pub. Util. Code, § 33017 providing for levy and collection 

of special benefit assessment at same time and in same manner as taxes].) Accordingly, 

the trial court did not err in sustaining the demurrers on the basis that Kahan failed to 

state a cause of action because he failed to allege compliance with the procedures of the 

Revenue and Taxation Code. 

Fourth, even if the garbage collection fees are technically user fees, and even if 

Kahan is correct that the Revenue and Taxation Code procedural requirements do not 

apply, that does not mean the creation of the lien was unauthorized. Each of the causes 

of action in Kahan’s complaint is premised on the contention the City’s actions were 

unlawful and not authorized by Government Code sections 38790.1 and 25831, 

subdivision (d). Because we conclude the recording of a lien for delinquent garbage fees 

was expressly authorized by statute regardless of whether those fees are, by their nature, 

special assessments or user fees, Kahan has failed to state a cause of action on any of the 

theories he asserts. (Rossberg v. Bank of America, N.A., supra, 219 Cal.App.4th at 
15

p. 1491 [appellate court will affirm order sustaining demurrer on any ground on which it 

can properly be sustained, regardless of grounds relied on by trial court].) 

C. State Lien Priority Preemption

Kahan also relies on Isaac, supra, 66 Cal.App.4th 586 to argue the City’s 

characterization of garbage liens conflicts with and is preempted by state lien priority 

law. In Isaac, the City of Los Angeles argued its ordinance was valid because utility 

service is a municipal affair and it was within the police power of the city to legislate 

with respect to payment of utility charges. The court rejected that argument, finding “lien 

priorities on real property a matter of statewide concern because uniformity in lien 

priority is essential.” (Id. at p. 600.) It then explained: “Because lien priority is a matter 

of statewide concern, the City [of Los Angeles] may not enact legislation that conflicts or 

disables the effectiveness of statutory law. The statutory scheme of lien priority giving 

priority to certain liens, such as tax liens and purchase money mortgages, reflects a 

legislative intent to favor certain types of charges against real property. The utility lien at 

issue disrupts this balance by giving what is essentially a judgment lien priority normally 

accorded only to tax liens.” (Id. at p. 601.)

Again, Isaac is distinguishable. There, the City of Los Angeles was relying on its 

general police power to grant delinquent utility charges priority over other liens. (Isaac, 

supra, 66 Cal.App.4th at p. 599.) Here, Government Code sections 25831 and 38790.1 

expressly authorize the superpriority status accorded the garbage lien in this case, and 

thus the City’s ordinance was entirely consistent with statutory lien priority law. 

D. Bona Fide Encumbrancer Exception 

Next Kahan argues that even if Government Code sections 25831 and 38790.1 

authorize the City to create special assessments for unpaid garbage fees, the City’s 

application of its ordinance in this case was unauthorized because those statutory 

provisions cannot be used against a property to which a lien of a bona fide encumbrancer 

has attached. 

Government Code section 25831, subdivision (d) provides, in relevant part: “All 

laws applicable to the levy, collection, and enforcement of county ad valorem property 
16

taxes shall be applicable to the assessment, except that if any real property to which the 

lien would attach has been transferred or conveyed to a bona fide purchaser for value, or 

if a lien of a bona fide encumbrancer for value has been created and attaches thereon, 

prior to the date on which the first installment of the taxes would become delinquent, then 

the lien that would otherwise be imposed by this section shall not attach to the real 

property and the delinquent fees, as confirmed, relating to the property shall be 

transferred to the unsecured roll for collection.” (Italics added.) Kahan’s complaint 

alleges the garbage lien recorded by the City on January 8, 2014 was “recorded after the 

recordation of one or more bona fide mortgage encumbrances on the Subject Property.” 

Relying on Government Code section 25831, subdivision (d) and this allegation, Kahan 

contends he is not subject to the lien because a bona fide encumbrancer placed a lien on 

the property at some point before the City recorded its lien. 

Kahan’s position reflects a fundamental misunderstanding of the bona fide 

purchaser/bona fide encumbrancer doctrine. As explained by Miller and Starr in their 

preeminent California real estate treatise, “A preferential priority is given to a purchaser 

or encumbrancer who acquires a lien or title interest in good faith and for value without 

knowledge or notice of a prior interest. Such a party is called a ‘bona fide purchaser’ or a 

‘bona fide encumbrancer,’ depending on whether the interest is an estate in the property 

or a lien on the property. . . . A ‘bona fide encumbrancer’ is an encumbrancer acting in 

good faith and for value who receives a lien or encumbrance on real property, or perhaps 

merely the means of obtaining one without knowledge or notice of competing liens on the 

same property, and who has parted with something of value in consideration for the 

encumbrance.” (4 Miller & Starr, Cal. Real Estate (4th ed.) § 10:50, pp. 10-204–10-205, 

fns. omitted.) The same treatise also states: “The subsequent interest of a bona fide 

purchaser or encumbrancer achieves priority over a prior interest where the subsequent 

party acquires an interest in the property for a valuable consideration, in good faith, and 

when he or she first records the instrument creating his or her interest without 

knowledge or notice of the prior interest . . . .” (Id. at p. 10-206, fns. omitted; see Caito 

v. United California Bank (1978) 20 Cal.3d 694, 702 [“Policy runs against upholding 
17

secret liens and charges to the injury of subsequent innocent encumbrancers. [Citations.] 

. . . [¶] . . . ‘. . . A purchaser (including an encumbrancer) in good faith for value and 

without actual or constructive notice is entitled to protection against undisclosed liens and 

equities existing against . . . unrecorded instruments.’ ” (italics added)]; Melendrez v. 

D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1251 [bona fide purchaser for value 

who acquires interest in real property without notice of another’s asserted rights in the 

property take the property free of such unknown rights; same elements apply to bona fide 

encumbrancer]; Triple A Management Co. v. Frisone (1999) 69 Cal.App.4th 520, 530 

[good faith encumbrancer for value is subsequent encumbrancer].) 

Kahan apparently concedes he is not a bona fide purchaser or encumbrancer. It is 

undisputed he purchased the subject property at a foreclosure sale with notice of the 

garbage lien, which was recorded eight days before the sale. (See Caito v. United 

California Bank, supra, 20 Cal.3d at p. 702 [recorded instrument provides constructive 

notice of its contents]; In re Marriage of Cloney (2001) 91 Cal.App.4th 429, 437 [law 

presumes a party acquiring property has notice of the contents of a properly recorded 

document affecting the property].) Kahan nonetheless contends the language of the 

exception in Government Code section 25831, subdivision (d) must be read to provide

the garbage lien cannot “be used against property that is already encumbered.” At oral 

argument, Kahan’s counsel argued the exception applies whenever a mortgage has been 

obtained on the property prior to the garbage lien. 

In interpreting the meaning of a statute, we look first to its plain language. 

(MacIssac, supra, 134 Cal.App.4th at p. 1082.) Here, the exception provides “if a lien of 

a bona fide encumbrancer for value has been created and attaches [to the real property], 

prior to the date on which the first installment of the taxes would become delinquent, then 

the lien that would otherwise be imposed by this section shall not attach to the real 

property . . . .” (Gov. Code, § 25831, subd. (d).) Arguably, one could read those words 

to mean that if a mortgage has been placed at any point in time prior to the due date for 

the first installment of property taxes, a garbage lien cannot attach to the property. This 
18

construction, however, ignores the well-established meaning of the term “bona fide 

encumbrancer for value.”

As explained above, a bona fide encumbrancer, by definition, is a subsequent

encumbrancer who obtains a lien without notice of a prior, existing interest. One is not a 

bona fide encumbrancer in the abstract, but in relationship to a particular preexisting 

interest—here, the garbage lien. Thus, in order to be a bona fide encumbrancer for value 

with regard to the garbage lien in this case, Kahan would have to allege facts showing the 

alleged mortgage(s) were obtained after the garbage lien existed but before it was 

recorded.

5

 Kahan’s conclusory allegation that one or more mortgage interests existed on 

the property at some unspecified point before the City recorded the garbage lien does not 

suffice to plead those mortgages were subsequent encumbrances placed after the garbage 

lien arose without notice of it. Nor does his legal contention the alleged mortgages were 

“bona fide mortgage encumbrances” suffice to overcome his failure to allege material 

facts supporting a cognizable cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 

318 [“In reviewing the sufficiency of a complaint against a general demurrer, . . . . ‘We 

 

5 Neither Kahan nor the City discussed in their briefs at what point the garbage 

lien was created. Under Government Code section 25831, subdivision (a), the county 

board of supervisors prepares a report of delinquent charges and fixes a date for hearing 

any protests or objections to the report. Under subdivision (c), the board of supervisors 

make corrections or revisions to the report at the hearing, after which it is confirmed by 

resolution. Subdivision (e) provides the requirements of subdivisions (a) and (c) do not 

apply where a county has an administrative procedure that allows property owners to 

appeal, and in such cases, a list of delinquent fees is prepared and filed with the auditor. 

“The delinquent fees set forth in the report as confirmed, or the list prepared pursuant to 

subdivision (e), shall constitute special assessments against the respective parcels of land 

and are a lien on the property for the amount of the delinquent fees. The lien created 

attaches upon recordation . . . of a certified copy of the resolution of confirmation or the 

list prepared pursuant to subdivision (e).” (Gov. Code, § 25831, subd. (d), italics added.)

From this language, it appears the garbage lien is created (as the City posited at oral 

argument) when the board of supervisors confirms the list of delinquent fees or prepares a 

list under Government Code section 25831, subdivision (e). Thus, a bona fide purchaser 

or encumbrancer would be protected from a superpriority lien for unpaid garbage 

collection fees between that time and the time the resolution of confirmation or list of 

delinquent fees is recorded. 
19

treat the demurrer as admitting all material facts properly pleaded, but not contentions, 

deductions or conclusions of fact or law.’ ”] 

Our construction of the statute is consistent with the apparent intent of the 

Legislature in adopting the exception here. In 1973, the Legislature passed Assembly 

Bill No. 1342 (1973–1974 Reg. Sess.) as part of a comprehensive effort to add a bona 

fide purchaser or encumbrancer exception to a number of statutes, including Government 

Code section 25831, and among others, statutes governing water and sewer standby 

charges, water service, nuisance abatement, and weed abatement. (Stats. 1973, ch. 861, 

pp. 1563–1576, §§ 1–19.) A report of the Assembly Committee on Local Government 

indicated the legislation “would alter the . . . procedure by which uncollected charges 

become liens against property” and explained that “uncollected charges do not become a 

lien on property under the following circumstances: [¶] 1. If the property in question has 

been sold prior to the date on which the first installment of taxes becomes delinquent (i.e. 

December 10 in any given fiscal year), then [¶] 2. The uncollected charge is

automatically transferred to the unsecured roll and does not become a lien against the 

property. [¶] In effect, AB 1342 establishes the policy that if property is sold between 

July 1 and December 10 in any fiscal year, charges appearing upon the property tax bill 

will not, if left unpaid, become a lien on that property.” (Assem. Com. on Local 

Government, Analysis of Assem. Bill No. 1342 (1973–1974 Reg. Sess.) June 12, 1973.) 

A staff analysis from the Senate Local Government Committee notes that “various laws 

allowing local governments to charge for particular services (e.g., garbage removal, weed 

abatement) allow for collection of delinquent charges by means of a lien on the affected 

property.” (Sen. Com. on Local Government, Staff Analysis of Assem. Bill No. 1342 

(1973–1974 Reg. Sess.) June 4, 1972, p. 1.) It describes the problem the legislation seeks 

to address: “For those liens which are added to the tax bill (as opposed to those which 

are recorded with the county recorder), it is allegedly impossible for a purchaser who 

buys after March 1st to know what delinquent charges are owing on the property until he 

receives his tax bill in November. Allegedly, this is inequitable to the new purchaser.” 

(Ibid.) Both reports suggest that the purpose of the amendment was to address the 
20

perceived inequity of charging those who purchased or encumbered property without 

knowing that delinquent charges had been placed on the property tax roll in the relatively 

brief period of weeks or months before the tax bill issued. 

To the extent any ambiguity remains, our construction of the bona fide 

encumbrancer exception in Government Code section 25831 here comports with “reason, 

practicality, and common sense.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 

6 Cal.App.4th 1233, 1239; People v. Johnson (2015) 234 Cal.App.4th 1432, 1451 [courts 

must interpret legislative enactments to avoid absurd consequences].) Interpreting

Government Code section 25831 to preclude a garbage lien from attaching whenever a 

property has been encumbered by a prior mortgage at any time would make little sense 

because most residential properties in California are (or have been) subject to one or 

more mortgages. As the City argues, were we to agree with Kahan, the bona fide 

encumbrancer exception to Government Code section 25831 “would swallow[] its rule.” 

Indeed, under Kahan’s interpretation, a delinquent owner would not be subject to a lien

for such charges just because someone, at some point in time, held a mortgage on the 

property. Nothing suggests the Legislature intended such a result. 

Kahan relies on County of Butte v. North Burbank Pub. Utility Dist. (1981) 

124 Cal.App.3d 342 (County of Butte), in which the court held that an assessment 

pursuant to Public Utilities Code section 164706for unpaid sewage charges incurred by a 

mobile home park from March 1978 through June 1979 did not become a priority lien 

because the mobile home park had previously encumbered the property with a deed of 

trust in 1974. (County of Butte, at pp. 344–345, 347.) As an initial matter, County of 

Butte is not controlling because it involves a different statute. But more importantly, we 

find it inapposite because the court in County of Butte did not consider whether the fact 

that the unpaid sewer charges assessment arose after the deed of trust meant the notion of 

 

6 Public Utilities Code former section 16470 contained a bona fide purchaser or 

encumbrancer exception with similar wording to the exception in Government Code 

section 25831, subdivision (d). 
21

a “bona fide encumbrancer for value” did not apply. “It is axiomatic that cases are not 

authority for propositions that are not considered.” (California Building Industry Assn. v. 

State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043.)

In sum, the bona fide encumbrancer exception does not apply here based on the 

allegations of Kahan’s complaint. 

E. Failure to State a Claim

The trial court’s order sustaining the demurrer states, “The demurrer on the basis 

of immunity to the Third Cause of Action for Inverse Condemnation and Violation of 

Due Process and the Fourth Cause of Action for Negligence is sustained, with leave to 

amend, to the extent the complaint goes beyond seeking a refund.” Kahan contends the 

order must be reversed because the City is not immune from liability for damages for 

inverse condemnation or negligence. As we explained above, however, all four causes of 

action in Kahan’s complaint, including his causes of action for inverse condemnation and 

negligence, depend on his allegation the City’s special assessment lien was unauthorized. 

Because, as we have explained above, the lien was expressly authorized by statute, Kahan 

has failed to state a cognizable cause of action. Accordingly, we need not reach the 

question of immunity. Likewise, we need not address whether the County must be 

named as a necessary party. 

We also reject Kahan’s argument the trial court improperly sustained the 

demurrers to only portions of his causes of action. Kahan argues the trial court ruled the 

County is a necessary party to the extent Kahan seeks an injunction to compel the City to 

cause the County to remove the delinquent garbage charges from the tax roll, but he also 

seeks to enjoin the City from recording and maintaining garbage liens and to compel 

them to release them. Further, the trial court ruled the governmental immunity statute 

precludes his negligence and inverse condemnation claims to the extent he alleges relief 

beyond a refund, but those claims allege a right to a refund. Thus, Kahan contends, these 

rulings fall short of supporting dismissal of any cause of action in its entirety. 

We disagree. The trial court cited several grounds for its ruling, which together 

disposed of all his claims. It sustained demurrers to all causes of action in the complaint 
22

on the ground they failed to state a cause of action for refund of an assessment, and to his 

negligence and inverse condemnation claims to the extent they sought relief beyond a 

refund.7 We affirm that ruling for the reasons stated above.

F. Leave to Amend

In his reply brief to this court, Kahan requested leave to amend his complaint to 

allege that he has exhausted his administrative remedies under the property tax refund 

statutes, and to name the County as a defendant. Kahan raised this issue for the first time 

on reply, and accordingly, we need not consider it. (WA Southwest 2, LLC v. First 

American Title Ins. Co. (2015) 240 Cal.App.4th 148, 155.)

In any event, Kahan stood on his complaint and chose not to amend. When a 

plaintiff is given the opportunity to amend and elects not to do so, we construe the 

complaint strictly and presume the plaintiff has stated as strong a case as he or she can. 

(Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635, disapproved on another 

point in City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 740; Drum v. San 

Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 251.) “In these circumstances, 

we will affirm the judgment if the complaint is objectionable on any ground raised in the 

demurrer.” (Drum, at p. 251.) Although Kahan implies in his reply brief that exhaustion 

of his administrative remedies represents a change in circumstances that he did not have 

 

7 We observe Kahan conceded at the demurrer hearing in the trial court that he did 

not have a claim for damages beyond the refund claim and would amend his complaint 

accordingly. The court questioned Kahan’s counsel about the negligence claim, for 

example, noting it “does go beyond simply seeking to recoup whatever had been 

collected” and sought relief “ ‘[i]ncluding, but not limited to, damages in the form of 

charges and fees paid to the Defendants’ . . . ‘and other forms of economic harm and 

actual damages arising out of the conduct alleged herein.’ ” Kahan’s counsel responded: 

“I think that we would be willing to drop that—that part of that. The claim essentially is 

for a refund. And in fact, I was going to suggest that if we’re given leave to amend that 

we may want to add the money received, common count. [¶] That’s essentially the relief 

that we’re seeking. There’s really no other economic harm that—either the plaintiff or 

the Class were seeking to recover.” 
23

the opportunity to allege previously, his declaration provides no support for that 

suggestion. 

Because we conclude Kahan is not entitled to another opportunity to amend his 

complaint, we deny the motion for judicial notice filed on April 9, 2018 with his reply 

brief and the second supplemental motion for judicial notice filed on October 4, 2018, 

after the reply brief, asking us to take judicial notice of his postjudgment attempts to 

exhaust his administrative remedies with respect to a tax refund. Moreover, judicial 

notice would be improper because the evidence Kahan asks us to notice was not before 

the trial court at the time it rendered its decision. (Vons Companies, Inc. v. Seabest 

Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [reviewing courts generally do not take 

judicial notice of evidence not presented to trial court and consider only matters which 

were part of the record at the time judgment was entered unless “exceptional 

circumstances exist that would justify deviating from that rule”]; California School Bds.

Assn. v. State of California (2011) 192 Cal.App.4th 770, 803 [same].) 

III. DISPOSITION

The judgment is affirmed. Respondent may recover its costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(1).) 

 
24

____________________________

Margulies, J.

We concur:

_____________________________

Humes, P. J.

_____________________________

Banke, J.

A150866

Kahan v. City of Richmond
25

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Barry Goode

Counsel: 

Nelson & Fraenkel, Gretchen M. Nelson; Law Offices of Gregg A. Rapoport and Gregg 

A. Rapoport for Plaintiff and Appellant.

Colantuono, Highsmith & Whatley, Michael G. Colantuono, Holly O. Whatley and Jon 

R. di Cristina for Defendant and Respondent.