Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. No. CGC10495908
Siggins, J.
Appellant Conor Daniel Mack is a lawyer. He filed this purported class action seeking declaratory relief, restitution and a writ of mandate, based on an error in the assessment of costs against him in a small claims judgment. Because the court corrected the error before Mack filed suit, the case was dismissed after the trial court sustained a demurrer without leave to amend. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
German Motors Collision Center (German Motors) sued Mack in the small claims division of San Francisco Superior Court to recover approximately $500 for tires it installed on Mack’s car. Because German Motors had filed more than 12 small claims cases in the previous 12 months, it paid a filing fee of $100, instead of $30. (Code Civ. Proc., § 116.230, subds. (b) & (c).) Following a trial, the court entered judgment for German Motors for $239, plus costs that included the $100 filing fee. Mack did not move to correct the judgment, nor did he file an appeal.
Further statutory references are to the Code of Civil Procedure.
Instead, several months later, Mack presented a claim against the “State of California, by and through the Administrative Office of the Courts [the AOC] and the State Treasurer’s Office, ” seeking $70 for himself and each other person in a similar situation on the basis that losing defendants are not legally liable for the enhanced filing fee. Almost two months later, the small claims court sua sponte set aside its original judgment against Mack and entered an amended judgment that reduced the costs awarded by $70. On the same date, the AOC rejected Mack’s claim, stating it was moot in light of the amended judgment.
Ten days later, Mack filed his complaint against the San Francisco Superior Court and the State of California (Respondents) alleging the small claims division had a custom and practice of assessing excessive costs against defendants in violation of the Code of Civil Procedure as well as the equal protection clauses of the state and federal constitutions. Mack sought declaratory relief, as well as restitution and a writ of mandate. Respondents demurred, asserting, in part, that Mack lacked standing because he suffered no tangible injury. The court sustained the demurrer without leave to amend, and dismissed the complaint “without prejudice to a similar action being filed by a different plaintiff (i.e., one other than Mr. Mack) who has standing to sue and good cause to support a claim.” Mack timely appealed.
DISCUSSION
“On appeal from a judgment after a demurrer is sustained without leave to amend, we review the trial court’s ruling de novo, exercising our independent judgment on whether the complaint states a cause of action.” (Lincoln Property Co., N.C. , Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) We “must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.]... In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637 [when plaintiff proposes no amendments to the complaint, “the only question for us is whether the allegations of the complaint state any legally sufficient claims”].) We affirm the trial court’s ruling “if it is correct on any theory, ” regardless of the reasons stated by the court. (Ibid.)
A prevailing party in a small claims action is entitled to recover its costs. (§ 116.610, subd. (g)(1).) But when the plaintiff has paid an increased filing fee under section 116.230, subdivision (c), the recoverable costs are limited to the amount that would have been paid had the plaintiff not been subject to the increased fees. (§ 116.610, subd. (g)(2).)
The court may correct a clerical error in a small claims judgment, or set aside and vacate a judgment on the ground of an incorrect or erroneous legal basis for the decision, on its own motion at any time or on the motion of a party served within 30 days after the clerk mails notice of entry of judgment to the parties. (§ 116.725, subd. (a); see also § 473, subd. (d) [court may correct clerical mistakes in its judgment].) If a party files a notice of appeal, a new hearing is held before the superior court, whose judgment then becomes final and not appealable. (§§ 116.710, subd. (b), 116.750, 116.770, 116.780; Cal. Rules of Court, rule 8.950 et seq.)
The court amended the judgment in this case to reflect the correct amount of costs before Mack filed his complaint. To have standing to sue, a person, or those he properly represents, must have suffered or be about to suffer an “ ‘ “injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.” [Citation.]’ ” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) In light of the court’s correction of the judgment, Mack alleged no injury for which the court should afford him relief. He thus lacks standing. Moreover, “a writ of mandate is granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied.” (Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 707-708, internal quotations omitted.)
Mack says that notwithstanding these traditional tests, he has standing to petition for mandate because the issue involved is one of public interest. Were it that simple, Mack would be correct. But it is not. The public interest exception to standing is invoked where the issue involves enforcement of a public duty or is of widespread concern, especially when the courts of appeal are in conflict. (Green v. Obledo (1981) 29 Cal.3d 126, 144; Brandt v. Superior Court (1985) 37 Cal.3d 813.) This case fits neither category. Nor does it present a situation where the court should recognize standing to bring a petition for mandate because the plaintiff may bring the claim in some other form, such as a taxpayer suit. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1116-1117.)
Finally, Mack says he paid the erroneous judgment, and remains “out of pocket $70 and therefore still has standing to seek declaratory relief and restitution.” Again, we disagree. The only reason Mack is “out of pocket” is that he chose to pay the erroneous judgment rather than challenge it by posttrial motion or appeal. (§§ 116.725, subd. (a).116.710, subd. (b).)
After Mack filed his claim but before he filed suit, the court corrected the judgment to reflect a proper award of costs. There is no ongoing dispute or controversy that must be resolved by declaratory relief. The cases Mack relies upon that hold the voluntary cessation of illegal activity does not moot a controversy are inapposite. In each, the defendant ceased a challenged practice after suit was filed, and the court considered the effect such voluntary cessation should have on a pending lawsuit. (Marin County Board of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 929; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) 528 U.S. 167, 189.) Here, there was no suit pending when the superior court modified the judgment. Accordingly, the concern that the defendant may have ceased the challenged practice simply to deprive a court of the ability to decide the issue is not presented in this case. We are unaware of any case where the voluntary cessation of illegal activity doctrine that is an exception to mootness has been considered to confer standing on a plaintiff because the ceased conduct is capable of repetition. This one will not be the first.
There is also no reason to conclude Mack has standing to seek restitution. In order to do so, he must allege that the superior court wrongfully obtained a benefit at his expense. While he cites cases expressing the proposition that there is no requirement the benefit be paid directly to the recipient by the party seeking restitution, they miss the mark. (Shersher v. Superior Court (2007) 154 Cal.App.4th 1491, 1500; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1278.) Mack makes no claim that the $100 filing fee was wrongfully assessed and retained by the superior court. Instead, he claims that the court was wrong to include the full $100 fee in cost awards recoverable by a party. Thus, it is possible that Mack’s opponent in the small claims case benefited from an excessive cost award, but there is no basis to conclude the superior court did as well.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting. P.J.Jenkins, J.