Mahon v. City of San Diego ( 2020 )

Filed 11/20/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JESS WILLARD MAHON, JR., et al., D074877
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2015-00014540-
CU-MC-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Judith F. Hayes, Judge. Affirmed.
Krause Kalfayan Benink & Slavens, Vincent D. Slavens, Eric J. Benink;
Huskinson Brown & Heidenreich, Paul E. Heidenreich and David W.T. Brown for
Plaintiffs and Appellants.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and
Meghan Ashley Wharton, Deputy City Attorney, for Defendant and Respondent.
I.
INTRODUCTION
Proposition 218, the Right to Vote on Taxes Act, generally requires that local
governments obtain voter approval prior to imposing taxes, as its name suggests.
(Prop. 218, § 3, approved Nov. 5, 1996; Cal. Const., art. 13C, § 2.) Plaintiffs Jess
Willard Mahon, Jr. and Allan Randall brought this certified class action against the City
of San Diego (City) claiming that the City violated Proposition 218 by imposing an
illegal tax to fund the City’s undergrounding1 program.
In the operative complaint, plaintiffs contend that the City violated Proposition
218 through the adoption of an ordinance that amended a franchise agreement between
the City and the San Diego Gas & Electric Company (SDG&E). The ordinance provides
generally that SDG&E will budget 4.5 percent of its “gross receipts”2 from the sale of
electricity in the City to pay for undergrounding. The ordinance, together with a related
memorandum of understanding, further specifies that part of the money to fund the
undergrounding budget will be collected by SDG&E through a 3.53 percent surcharge on
ratepayers in the City that will be remitted to the City for use on undergrounding
(Undergrounding Surcharge). Plaintiffs claim that the surcharge is a tax. Plaintiffs
further claim that the surcharge violates Proposition 218 because it was never approved
1 Undergrounding refers to the process of removing existing overhead electric and
communications facilities and placing them underground.
2 As discussed in part II.A.5.c, post, the term “gross receipts” is defined in the
ordinance.
2
by the electorate. Plaintiffs note that the City has imposed more than 200 million dollars
in charges pursuant to the Undergrounding Surcharge during the class period. Through
this action, plaintiffs seek a refund of those amounts, among other forms of relief.
The City filed a motion for summary judgment, which the trial court granted on
two independent grounds. First, the trial court concluded that the Undergrounding
Surcharge constitutes compensation for franchise rights and thus is not a tax under Jacks
v. City of Santa Barbara (2017) 3 Cal.5th 248 (Jacks), which held that “a charge imposed
in exchange for franchise rights is a valid fee rather than a tax . . . if the amount of the
charge is reasonably related to the value of the franchise.” (Id. at p. 257.) Alternatively,
the trial court concluded that the Undergrounding Surcharge is a valid regulatory fee and
not a tax.
On appeal, plaintiffs contend that the Undergrounding Surcharge is neither a
franchise fee nor a regulatory fee, but is instead an illegally imposed tax. As to the
franchise fee issue, plaintiffs’ primary contention is that the Undergrounding Surcharge is
not a franchise fee under Jacks because it does not constitute compensation for franchise
rights. Accordingly, plaintiffs maintain that the trial court erred in granting the City’s
motion for summary judgment.
We conclude that the trial court properly granted the City’s motion for summary
on the ground that the Undergrounding Surcharge is compensation validly given in
3
exchange for franchise rights under Jacks and thus, is not a tax subject to voter approval
under Proposition 218. Accordingly, we affirm the judgment.3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The 1920 Franchise Agreement
In 1920, the City granted SDG&E4 an electric franchise for a period of 50 years.
The 1920 Franchise Agreement granted SDG&E the “ ‘franchise and authority to . . .
erect and maintain poles, wires, conduits and pipes for wires for transmitting electricity
for heat and power purposes along and upon all of the public streets, alleys, highways and
public places in [the City of San Diego].’ ”
2. Rule 20A
In 1965, the Public Utilities Commission (PUC) instituted an investigation with
respect to the undergrounding of electric and communications lines. Two years later, as
part of this investigation, the PUC, through Decision No. 73078, accepted a commitment
by SDG&E to conduct an undergrounding program paid for with SDG&E’s funds. The
PUC required SDG&E to adopt a new rule regulating the undergrounding that became
known as Rule 20A. Rule 20A limited both the locations at which undergrounding
3 In light of our conclusion, we need not consider the plaintiffs’ contention that the
trial court erred in determining, in the alternative, that the Undergrounding Surcharge is a
regulatory fee rather than a tax.
4 At the time, SDG&E was named the San Diego Consolidated Gas and Electric
Company. The company changed its name to SDG&E around 1939.
4
projects could be performed and the types of undergrounding related expenses for which
SDG&E could pay.
3. The 1970 Electric Franchise Agreement (Ordinance 10466)
a. Events leading to the 1970 Electric Franchise Agreement
In April 1969, the City Council adopted a resolution authorizing the City Manager
and the City Attorney to commence discussions with SDG&E pertaining to the adoption
of a new franchise agreement in light of the impending expiration of the 1920 Franchise
Agreement.
The City hired a consulting firm to advise it with respect to the negotiations. In
June 1970, the firm prepared a report that analyzed potential franchise terms, among
other topics.5 The report recommended that a new franchise agreement provide that a
“franchise payment be established at 2 ½ percent of all gross revenues from customers
within the city with no adjustments of any kind;” and that “the revised franchise
agreement provide for [an] additional 2 ½ percent, or a total of 4 ½ percent of the utility’s
electric revenues from San Diego city operations be allocated for undergrounding
purposes.”
The City Manager submitted a report to the Mayor and the City Council
concerning the proposed franchise agreement in July 1970. The report included
recommendations as to the term of the franchise agreement, payments to be made by
5 The report is more than 60 pages in length and is titled, “Concerning Franchises
for the Distribution and Sale of Gas and Electricity.” (Some capitalization omitted.)
5
SDG&E under the proposed agreement, and proposed obligations to be imposed on
SDG&E related to undergrounding.
That same month, the City advertised bids for the new electric franchise with
proposed terms. The City conducted several rounds of bidding, and engaged in extensive
negotiations with SDG&E pertaining to the franchise agreement. During these
negotiations, the City adopted a resolution outlining a proposed franchise agreement
ordinance for a 50-year term that required that the grantee of the franchise pay the City
3 percent of the grantee’s gross receipts for the first 30 years of the franchise.
In October 1970, SDG&E applied to the PUC for an order permitting SDG&E
“ ‘to add to the bills of its customers within the City of San Diego a separately stated
surcharge equal to the difference between . . . 1.1% of gross receipts in the case of the
electric franchise and the new fee of 3% of gross receipts for each of the franchises.’ ”
The application requested that a surcharge of 1.9 percent (“1.9 Percent 1970 Surcharge”)
be “ ‘added as a separate item to bills rendered to such customers.’ ” The PUC gave its
preliminary approval of the 1.9 Percent 1970 Surcharge that same month.6
6 In Jacks, the Supreme Court described the rationale for the PUC’s approval of
such surcharges. (See Jacks, supra, 3 Cal.5th at pp. 263–267.) As the Jacks court
explained, the Legislature has enacted a series of laws that limit the compensation that
general law municipalities may charge for a franchise. (Id. at pp. 263–265.) However,
these limitations do not apply to charter cities. (Id. at p. 265.) Accordingly, “the PUC
has concluded that it is not fair or reasonable to allow a utility to recoup from all of its
utility customers charges imposed by a jurisdiction whose charges exceed the average
amount of charges imposed by other local governments. Therefore, the PUC has
established a procedure by which a utility may obtain approval to impose a surcharge on
the bills of only those customers within the particular jurisdiction that imposes higher-
than-average charges.” (Id. at pp. 265–266.)
6
b. The 1970 Electric Franchise Agreement (Ordinance 10466)
In December 1970, the City Council enacted Ordinance No. 10466 (“Ordinance
10446” or “1970 Electric Franchise Agreement”) granting SDG&E a franchise for
distributing electricity in the City. Ordinance 10446, section 2 defined the purpose of the
franchise as follows:
“Section 2. PURPOSE
“The franchise (1) to use, for transmitting and distributing electricity
suited for lighting but for use by consumers for any and all lawful
purposes other than lighting, all poles, wires, conduits and
appurtenances which are now or may hereafter be lawfully placed
and maintained in the streets within City under the constitutional
franchise[7] of Grantee, (2) to construct, maintain and use in said
streets all poles, wires, conduits and appurtenances whenever and
wherever the constitutional franchise of Grantee is not now nor shall
hereafter be available therefor, necessary to transmit and distribute
electricity suited for, and for use by consumers for, any and all
lawful purposes, and (3) to utilize said poles, wires, conduits and
appurtenances in said streets for transmitting electricity for use
outside the boundaries of City for any and all lawful purposes is
hereby granted to [SDG&E], its successors and assigns.”
Section 3 of the ordinance established a 50-year term for the franchise.
The City is a charter city. In the 2001 Memorandum of Understanding (see pt.
II.A.5.b, post), the City stated that the 1.9 Percent 1970 Surcharge was approved by the
PUC in order “to capture the difference between the City Franchise Fee and the average
franchise fee within . . . SDG&E service territory.”
7 Ordinance 10466, section 1(f) defined “constitutional franchise” as follows:
“[T]he right acquired through acceptance by Grantee or its predecessor in estate of the
offer contained in the provisions of Section 19 of Article XI of the Constitution of the
State of California, as said Section existed prior to its amendment on October 10, 1911.”
Prior to 1911, the California Constitution prohibited municipalities from charging
franchise fees. (Jacks, supra, 3 Cal.5th at p. 263.)
7
Ordinance 10466, section 4 is titled “Consideration.” Section 4(a) established that
SDG&E was required to pay the City 3 percent of its gross receipts each year during the
first 30 years of the franchise as follows:
“Section 4. CONSIDERATION
“(a) The rights and privileges herein granted are upon the express
condition that Grantee, as consideration therefor and as
compensation for the use of the streets of the City as herein
authorized and permitted, shall pay each year to City in lawful
money of the United States, a sum equal to three per[ ]cent (3%) of
Grantee’s gross receipts[8] during the pre[ ]ceding calendar year, or
a fractional year, commencing with the date of adoption of this
ordinance by the City Council, for the first thirty (30) years of the
term of this franchise by the dates, in the manner, and on the
conditions as set forth in Section 5[9] hereof.”
Ordinance 10466, section 4, subdivisions (b) and (c), outlined the process by
which the City and SDG&E would determine the amount to be paid for the remainder of
the term and provided in relevant part:
“(b) For the last twenty (20) years of the term of this franchise
Grantee, as consideration and compensation for the rights and
privileges herein granted and for the use of the streets of the City as
herein authorized and permitted, shall pay each year to City in
lawful money of the United States a sum equal to an amount to be
determined as set forth below of Grantee’s gross receipts during the
8 Ordinance 10466, section 1(g) defined “gross receipts” as follows: “All gross
operating revenues received by Grantee from the sale of electricity to Grantee’s
customers with points of service within the corporate limits of the City (including, but not
limited to, sales to military reservations with points of service within the City’s corporate
limits) which are credited in [certain specified accounts], less uncollectible amounts and
less any refunds or rebates made by Grantee to such customers pursuant to [PUC] orders
or decisions.”
9 Ordinance 10466, section 5 specified a payment schedule for SDG&E and
established various reporting and auditing requirements.
8
preceding calendar year, or a fractional year, for the remainder of the
term of this franchise by the dates, in the manner and on the
conditions as set forth in Section 5 hereof.
“(c) Determination of the amount to be paid as set forth in Section
4(b) above shall be made by good faith negotiation between City and
Grantee commencing not less than six (6) months prior to the
expiration of the first thirty (30) year period.”
The remaining subdivisions in section 4 of Ordinance 10466 outlined the process
by which the City and SDG&E would conduct such negotiations and provided that if they
were unable to agree as to the amount to be paid for the remaining term, the issue would
be resolved by way of arbitration.
Section 9, subdivisions (a) and (b) outlined SDG&E’s Undergrounding Obligation
(Undergrounding Obligation) under the ordinance, as follows:
“(a) Presently, Grantee is engaged in a program of converting to
underground certain of its facilities in accordance with Decision No.
73078[10] of the [PUC]. At this time, said decision requires Grantee
to budget prior to the end of each calendar year certain sums of
money for said program for the next succeeding year and allocate
these sums to undergrounding projects in the various governmental
jurisdictions throughout Grantee’s entire electric service territory on
the basis of the number of electric customers in each governmental
jurisdiction. Grantee is willing to increase the amounts of money
budgeted for said program and as a portion of the consideration for
the granting of the rights and privileges contained in this franchise
shall accomplish this in the following manner.
“(b) Grantee shall apply annually to the [PUC] for authority to
budget amounts of money for the undergrounding of existing
overhead facilities in the City. In its application for calendar year
1971 Grantee shall apply to increase the amounts of money to be
10 As noted in part II.A.2, ante, Decision No. 73078 is the 1967 PUC decision that
established Rule 20A.
9
budgeted for such undergrounding in the City from the amount
budgeted for 1970 by an amount equivalent to one-half of one
percent (l/2%) of its total system gross receipts for the calendar year
preceding the year of application (i.e., 1969) multiplied by the
allocation ratio.[11] Thereafter Grantee shall increase each year the
amount so applied for by one-half percent (1/2%) of its total system
gross receipts for the calendar year preceding the year of application
multiplied by the allocation ratio until such budgeted amounts of
money for undergrounding in the City reach a sum which is equal to
four and one-half percent (4 1/2%) of said total system gross receipts
multiplied by the allocation ratio. Thereafter Grantee shall continue
to apply to budget an amount of money equal to four and one-half
percent (4 1/2%) of said total system gross receipts multiplied by the
allocation ratio for such under-grounding conversion.” (Ord. 10466,
§ 9(a), (b).)
Subdivisions (c) and (d) specified circumstances under which SDG&E might have
a reduced Undergrounding Obligation:
“(c) If the amounts so budgeted for any calendar year are not
expended in that calendar year or the next two succeeding calendar
years following the budgeting thereof because of forces beyond the
control of Grantee, then in that event and that event only Grantee
may reallocate the unexpended amounts of money, in its discretion,
for any other lawful purpose.
11 Ordinance 10466, section 1(h) and (i) defined “total system gross receipts,” and
“allocation ratio” as follows:
“(h) The phrase ‘total system gross receipts’ shall mean all gross
operating revenues received by Grantee from the sale of electricity
to Grantee’s customers within its entire service territory which are
credited in [certain specified accounts], less uncollectible amounts
and less any refunds or rebates made by Grantee to such customers
pursuant to [PUC] orders or decisions;
“(i) The phrase ‘allocation ratio’ shall, unless and until otherwise
modified by the [PUC], mean a numerical ratio determined by the
proportion which the number of Grantee’s electric customers in the
City bears to all of Grantee’s electric customers throughout its entire
electric service territory.”
10
“(d) This section shall not be deemed in any way to be an
impairment of City’s rights as more particularly set forth in Section
8[12] of this ordinance. Nothing contained herein is intended to
prevent Grantee from informing City and the [PUC] of then existing
or foreseeable economic conditions or other factors which in the
opinion of Grantee make unwise the granting in whole or in part, of
the particular annual application.” (Ord. 10466, § 9(c), (d).)
Subdivision (e) provided: “This section is intended only to be a measure of a
portion of the consideration to be paid by Grantee to City for the rights and privileges
granted herein and therefore it does not create or confer any rights or obligations to
any[ ]one other than City or Grantee.” (Ord. 10466, § 9(e).)
Ordinance 10466 contained numerous other provisions outlining SDG&E’s
franchise relationship with the City (e.g., Section 6: “Compliance with laws”; Section 7:
“Administrative Practices”; Section 14: “Publication Expense”; Section 18: “Performance
Bond”).
c. PUC’s approval of the 1.9 Percent 1970 Surcharge
The PUC gave its final approval of the 1.9 Percent 1970 Surcharge in July 1972.
In its decision, the PUC explained that surcharges are necessary to avoid situations where
“ ‘charter cities in the State [e.g. the City] increase franchise fees to gas and electric
utility companies in anticipation that the utilities will increase their rates throughout their
service territories and recoup these expenses from ratepayers in general law cities and
12 Ordinance 10466, section 8 specified certain powers reserved to the City,
including the right to exercise its police power to “require the removal or relocation, to
either overhead or underground locations, of said poles, wires, conduits and
appurtenances thereto at the sole cost and expense of Grantee.”
11
unincorporated territory, thus transferring a large portion of the increased burden of
charter city levies to customers of the utility residing outside the charter cities.’ ”
4. Implementation of the 1970 Electric Franchise Agreement
Between 1970 and 2000, undergrounding in the City was severely limited by
restrictions placed on SDG&E’s use of the Rule 20A funds. Rule 20A restricted the
types of streets that could be part of undergrounding projects. Rule 20A also restricted,
by voltage carried, the types of lines that could be placed underground. Disputes
frequently arose between the City and SDG&E regarding whether a street or line voltage
qualified to be placed underground using Rule 20A funds. Additionally, during this time,
property owners were generally required to arrange for, and pay the cost of, the lateral
conversion of the underground lines, and property owners’ failure to do so often caused
long delays.
In addition, between 1979 and 2001, through various agreements between the City
and SDG&E as well as PUC actions, SDG&E was permitted to reduce its Rule 20A
undergrounding budget as provided for in section 9 of Ordinance 10466 far below the
level specified in the ordinance.
5. The 2002 Electric Franchise Amendment (Ordinance O-19030)
a. Negotiations pertaining to the 2002 Electric Franchise Amendment
Between mid-1999 and early 2002, the City and SDG&E engaged in negotiations
to reach an agreement that would establish SDG&E’s obligations for the remaining 20
years of the 1970 Electric Franchise Agreement. The City hired a consulting firm that
12
advised the City throughout the course of the negotiations. The firm provided the City
with an extensive memorandum covering numerous topics related to the negotiations.
SDG&E proposed a reduction in its obligation to pay the City 3 percent of gross
receipts in exchange for increased spending by SDG&E on undergrounding. The City, in
turn, proposed: increasing the 3 percent payment obligation to 6 percent; revising the
Undergrounding Obligation to require that SDG&E expend, rather than merely allocate,
4.5 percent of gross receipts on undergrounding; and requiring that SDG&E’s
shareholders absorb the increased costs associated with such changes.
The City also desired to remove restrictions on funds used for undergrounding.
However, during the negotiations, through its participation in proceedings before the
PUC, the City learned that the PUC’s restrictions on SDG&E’s use of Rule 20A funds
would, for the most part, remain in place. Therefore, SDG&E would be unable to expend
Rule 20A funds in the manner that the City thought was in the best interest of its
residents.
Representatives from the City and SDG&E met face to face more than 30 times
throughout the course of the negotiations. SDG&E and the City exchanged numerous
draft ordinances and memoranda of understanding related to the proposed amendment of
the 1970 Electric Franchise Agreement during these negotiations.
b. The December 2001 Memorandum of Understanding
In December 2001, the City and SDG&E entered into a Memorandum of
Understanding (2001 MOU) that outlined the terms of an amendment to the 1970 Electric
13
Franchise Agreement and SDG&E’s revised Undergrounding Obligation, including the
enactment of the Undergrounding Surcharge.
Section 2 of the 2001 MOU summarized the Undergrounding Surcharge as
follows:
“In order to meet the City’s objectives of increasing the current
amount of undergrounding being done in the City above what was
previously agreed to by [SDG&E and the City] and satisfy any
obligation of SDG&E to apply to the [PUC] to underground electric
facilities in an amount provided in Section 9 of the [1970 Electric
Franchise Agreement] and changing the definition of [g]ross
[r]eceipts,[13] SDG&E will support the City by submitting an
Advice Letter to the [PUC] asking to increase the [1.9 Percent 1970
Surcharge] on the residents of the City from 1.9% to 5.78%
conditioned upon the City using 3.53% of the [additional surcharge]
solely for undergrounding projects within its geographic territory in
conformance with the terms herein with the remainder of .35% to be
an increase to the [1.9 Percent 1970 Surcharge].”
Section 6 of the 2001 MOU states, “The franchise fee[ ] percentage[ ] for . . .
the . . . [e]lectric [f]ranchise[ ] shall remain at 3% for the remaining term[ ] of the
[f]ranchise[ ].” Section 8 specified that “[a]ll surcharge revenues will be paid directly to
the City . . . .”
Finally, section 16 of the 2001 MOU provided that, if the PUC were to fail to
timely approve the surcharge increase, the City and SDG&E would either resume
negotiations or submit the matter to arbitration:
13 As explained in part II.A.5.c, post, in the 2002 Electric Franchise Amendment, the
City and SDG&E agreed to change the definition of “gross receipts” in the 1970 Electric
Franchise Agreement to include SDG&E’s revenues obtained from PUC approved
surcharges in the City.
14
“In the event the [PUC] does not approve the Advice Letter filing in
a manner acceptable to each [p]arty or does not act on the Advice
Letter filing on or before December 31, 2002, the [p]arties will
mutually agree to either extend the negotiating period, or in the
alternative either [p]arty can require arbitration as provided in
Section 4 of the Franchises. The [p]arties agree that SDG&E shall
continue payment of [f]ranchise [f]ees in the same amount and
manner as calculated and paid in calendar year 2000 until the
effective date of such acceptable [PUC] approval or other finally
agreed upon negotiated or arbitrated decision.”
c. The 2002 Electric Franchise Amendment (Ordinance O-19030)
In January 2002, the City Council enacted Ordinance No. O-19030 (“Ordinance
O-19030” or “2002 Electric Franchise Amendment”), amending the 1970 Electric
Franchise Agreement.14 The introductory portion of Ordinance O-19030 summarized
the key provisions of the 1970 Electric Franchise Agreement and explained that the City
and SDG&E had reached an agreement to amend that agreement. The introduction
summarized the relevant key provisions of the amendment as follows:
“WHEREAS, [SDG&E and the City] have agreed that, subject to
[PUC] approval, gross receipts as defined in Section 1 of the [1970
Electric Franchise Agreement] shall include revenues from [the 1.9
Percent 1970 Surcharge], as well as other statutory or [PUC]
approved surcharges solely [sic] on the City ratepayers and as a
result of such changes, the [1.9 Percent 1970 Surcharge] will be
increased by .35%; and
“WHEREAS, [SDG&E and the City] have agreed that the funding
for the obligations of SDG&E to underground its facilities as set
forth in Section 9 . . . of the [1970 Electric Franchise Agreement]
shall be structured as follows after the effective date of this
Ordinance:
14 We refer to the 1970 Electric Franchise Agreement, as amended by the 2002
Electric Franchise Amendment, as the “Electric Franchise.”
15
“(a) collecting a portion of the funds from ratepayers in base rates
(1.15%) approved by the [PUC];
“(b) with the remainder to be collected from ratepayers in the City
through a [PUC] approved surcharge (3.53%) which will be paid
directly to the City, as set forth herein;
“(c) for a total obligation of four and one-half percent (4.5%) of
gross receipts, plus .18% for 1/19th of 2001 allocation (which
amount is included within the 3.53%).”15
Ordinance O-19030, section 1 revised the definition of “gross receipts” in section
1(g) of the 1970 Electric Franchise Agreement in the manner outlined in the introductory
section of Ordinance O-19030.
Section 2 of Ordinance O-19030 amended section 4 of the 1970 Electric Franchise
Agreement by deleting subdivisions 4(b) through (h), all of which pertained to the
determination of SDG&E’s payment obligation in the final 20 years of the franchise, and
replacing those subdivisions with a new subdivision 4(b) that provides in relevant part:
“(b) For the remaining years of the term of the [1970 Electric
Franchise Agreement], Grantee, as consideration and compensation
for the rights and privileges herein granted and for the use of the
streets of the City as herein authorized and permitted, shall pay each
year to City in lawful money of the United States, a sum equal to
three percent (3%) of Grantee’s gross receipts during the preceding
calendar year, or a fractional year, commencing with the effective
date of this ordinance adopted by the City Council, for the remaining
years of the term of this franchise by the dates, in the manner, and on
15 Stated differently, the City and SDG&E agreed that SDG&E would meet its
obligation to budget 4.5% of its gross receipts for undergrounding by: 1) budgeting
1.15% of its gross receipts from its base rates; and 2) collecting the balance from its
ratepayers in the City as a 3.35% surcharge (4.5% - 1.15%). The 2002 Electric Franchise
Amendment also included an additional 0.18% surcharge (a one year payment of 3.35%
spread over the remaining 19 years of the franchise) to recover surcharges uncollected in
2001, resulting in a total surcharge on SDG&E ratepayers for undergrounding of 3.53%.
16
the conditions as set forth in Section 5[16] hereof.” (Ord. O-19030,
§ 2.)
Ordinance O-19030, section 3 adopted the changes to SDG&E’s Undergrounding
Obligation referenced in the introduction to the ordinance and the 2001 MOU by
amending sections 9(b), and (c) of the 1970 Electric Franchise Agreement to enact the
Undergrounding Surcharge by stating:
“(b) Grantee shall apply to the [PUC] for authority to budget
amounts of money for the undergrounding of existing overhead
facilities in the City to reach a sum which is equal to four and one-
half percent (4.5%) of said gross receipts as defined in Section 1(g),
with 1.15 % of gross receipts to be included within the base rates,
and 3.88 % to be collected through an increase in the current [1.9
percent 1970 Surcharge] to the ratepayers in the City. Of the 3.88%,
3.53% will be allocated to undergrounding projects and .35% will be
an increase to the original [1.9 Percent 1970 Surcharge].[17]
“(c) Until and unless Grantor elects to assume the obligation,
Grantee shall be responsible, to the extent within the reasonable
control of Grantee, for ensuring that all funds allocated for any
calendar year, are expended by the end of the succeeding calendar
year, provided that Grantee and Grantor may agree in writing
otherwise.” (Ord. O-19030, § 3.)
d. The PUC’s approval of the 3.88 Percent 2002 Surcharge
The PUC approved the additional 3.88 Percent 2002 Surcharge, bringing the total
surcharge to 5.78 percent.
16 As noted in footnote 9, ante, Ordinance 10466, section 5 outlined SDG&E’s
payment schedule.
17 We refer to the 3.88 percent surcharge as the “3.88 Percent 2002 Surcharge.” The
Undergrounding Surcharge is a component of the 3.88 Percent 2002 Surcharge.
17
B. Procedural background
1. The initial complaint, first amended complaint and the trial court’s class
certification order
In April 2015, Mahon filed the initial putative class action complaint in this
matter. In his complaint, Mahon claimed that the entire 3.88 Percent 2002 Surcharge, as
well as a gas franchise surcharge contained in a separate franchise agreement between the
City and SDG&E, were illegal taxes. Mahon, Allan Randall, and Randy Oathes filed a
first amended complaint in May 2015, which challenged the 3.88 Percent 2002 Surcharge
and the gas franchise surcharge challenged in the initial complaint.18 The trial court
certified a class in October 2016 consisting of all SDG&E customers in the City who paid
for gas and / or electricity service during the class period (i.e., from March 9, 2014
through entry of a final judgment).19
18 Oathes is no longer a plaintiff.
19 The class certification order states in relevant part:
“1. The class is certified and defined as:
All San Diego Gas & Electric Co. customers (including natural
persons, organizations, corporations, associations, or any other legal
entity of any kind) who paid for gas and/or electric utility service at
service locations within the boundaries of the City of San Diego,
California during the Class Period. Expressly excluded from the
class definition are government agency utility customers and any
judicial officers assigned to this action. (the ‘Class’).
“[¶] . . . [¶]
“3. The ‘Class Period’ is the period on and after March 9, 2014
through and including the date of entry of final judgment in this
action.”
18
2. The trial court’s stay of all proceedings pending the issuance of Jacks
In November 2016, the City moved to continue the matter pending the Supreme
Court’s issuing of its opinion in Jacks. The trial court stayed the matter for a period of 90
days. The Supreme Court issued its opinion in Jacks in June 2017, and the trial court
lifted its stay of the proceedings the following month.20
3. The parties’ stipulation to permit the filing of a second amended complaint
and to modify the class
Shortly after the Supreme Court issued its opinion in Jacks, the parties entered into
a stipulation to permit the plaintiffs to file an amended complaint and to modify the class
definition. The stipulation explained that “following the issuance of the California
Supreme Court’s ruling in Jacks . . . , the [p]arties met and conferred and agreed to
narrow the issues presented in this action by way of an amended complaint.” The parties
agreed that plaintiffs would be granted leave to file a second amended complaint and that
the order certifying the class would be modified to exclude SDG&E gas customers from
the class definition. The trial court subsequently entered an order granting plaintiffs
leave to file a second amended complaint, and modifying the class definition in a manner
consistent with the parties’ stipulation.
20 Although it is not entirely clear from the record, it appears that the trial court
continued to stay the proceedings beyond the initial 90-day period pending the Supreme
Court’s issuance of Jacks.
19
4. The operative second amended complaint
Plaintiffs filed the operative second amended class action complaint in September
2017. In their complaint, plaintiffs explained that their causes of action are premised on
the City’s 2002 adoption of “Ordinance O-19030 which imposed, and continues to
impose, a 3.53% undergrounding surcharge (‘Undergrounding Surcharge’) upon
[SDG&E] customers with electric utility service at locations within the City’s
boundaries.” Plaintiffs alleged that the City’s imposition of the Undergrounding
Surcharge on SDG&E customers within the City is “an illegal tax enacted by the City and
imposed upon utility users in violation of Proposition 218.”
As relevant to the franchise fee issue raised in this appeal, plaintiffs alleged that
“[t]he Undergrounding Surcharge is not a franchise fee and there is no nexus between the
Undergrounding Surcharge and the value of the [f]ranchise the City granted to SDG&E.”
The second amended class action complaint contains four causes of action styled
as: “Violation of Proposition 218,” “Declaratory Relief,” “Injunctive Relief,” and “Tax
Refund.” Plaintiffs sought a declaration that the City violated Proposition 218 and that
the Undergrounding Surcharge was an unconstitutional tax. In addition, plaintiffs
requested an injunction to prevent the City from continuing to collect the
Undergrounding Surcharge, and to be awarded a refund of the taxes illegally imposed
through the Undergrounding Surcharge.21
21 Plaintiffs claimed that “[d]uring the Class Period to date, the City has imposed
upon Plaintiffs and Class members estimated Undergrounding Surcharges totaling more
than $205,000,000.”
20
5. The City’s motion for summary judgment or, in the alternative, summary
adjudication
The City filed a motion for summary judgment or, in the alternative, summary
adjudication in February 2018.22
As a threshold argument, the City argued that plaintiffs lacked standing to bring
their challenge.23 On the merits, the City argued that plaintiffs could not establish that
the Undergrounding Surcharge24 was an illegal tax, both because it was lawful
22 Plaintiffs filed a cross-motion for summary judgment. As noted in footnote 30,
post, in its order granting the City’s motion for summary judgment, the trial court ruled
that plaintiffs’ motion for summary judgment was moot.
23 In its order granting the City’s motion for summary judgment, the trial court
rejected the City’s contention that plaintiffs lacked standing. The City does not raise its
standing argument as an alternative ground for affirmance on appeal.
24 To be precise, the City argued that SDG&E’s “UG [Undergrounding] Obligation,”
was lawful consideration offered in exchange for franchise rights and a legitimate
regulatory fee. (Italics added.) In its briefing, the City drew a distinction between the
Undergrounding Surcharge (i.e., the 3.53 percent surcharge on ratepayers’ bills) and
SDG&E’S “UG [Undergrounding] Obligation,” to budget 4.5 percent of its gross receipts
for undergrounding. (Italics added.)
The distinction between the Undergrounding Obligation and the Undergrounding
Surcharge was important in presenting the City’s standing argument. Specifically, the
City argued that plaintiffs lacked standing to challenge the Undergrounding Surcharge,
because, according to the City, ratepayers such as plaintiffs paid the Undergrounding
Surcharge to SDG&E and not to the City. In addition, the City argued that plaintiffs
lacked standing to challenge SDG&E’s [Undergrounding] Obligation because the “fact
that SDG&E passes on the burden and expense of the UG [Undergrounding] Obligation
to the ratepayers is not sufficient to make the ratepayers the payers of the UG
[Undergrounding] Obligation to the City.” However, as noted in footnote 23, ante, the
trial court rejected the City’s standing argument, and the City does not raise a standing
argument on appeal.
In addition, the distinction between the Undergrounding Obligation and the
Undergrounding Surcharge was relevant to the City’s other alternative contention that, if
the trial court were to determine that the Undergrounding Obligation was a tax, it was a
21
consideration paid in exchange for franchise rights and because it was a legitimate
regulatory fee.
With respect to the former argument, the City argued that the Undergrounding
Surcharge constituted compensation for franchise rights and therefore was not a tax under
Jacks:
“The Court in Jacks ruled that the surcharge revenue collected by
[the utility] and then paid over to [the municipality] is an item of
compensation that [the utility] pays to [the municipality] in exchange
for the [f]ranchise [r]ights. Jacks, [supra,] 3 Cal.5th at 269 (noting
that the surcharge revenue ‘is a payment made in exchange for a
property interest that is needed to provide electricity to City
residents’). Similarly, the surcharge revenue collected by SDG&E
and then paid over to the City to satisfy the UG [Undergrounding]
Obligation is an item of compensation that SDG&E pays to the City
in exchange for the Franchise Rights.”
The City argued further:
“All consideration that [a local government entity] receives from a
[u]tility in exchange for the [f]ranchise [r]ights comes under the
definition of ‘compensation’ or ‘franchise fee’ as those term are used
in Jacks, [supra,] 3 Cal.5th at 254, 267 (holding that all ‘sums paid
for the right to use a jurisdiction’s rights-of-way are fees rather than
lawful tax, because the Undergrounding Obligation was initially imposed in 1970, prior
to the passage of Proposition 218, and no “rate increase occurred,” with the enactment of
the Undergrounding Surcharge in 2002. This distinction was also relevant to the City’s
arguments with respect to the City’s contention that SDG&E’s Undergrounding
Obligation is a valid regulatory fee.
The City continues to use this terminology in its briefing on appeal in arguing that
the “UG [Undergrounding] Obligation” is lawful. (Italics added.) Since we need not
address the City’s standing argument or its alternative contentions with respect to either
the regulatory fee issue or the timing of the adoption of the Undergrounding Obligation,
and given that the plaintiffs have argued that the Undergrounding Surcharge is unlawful,
for purposes of clarity, we refer to the City’s arguments as to the lawfulness of the “UG
[Undergrounding] Obligation” both in the trial court and on appeal, as pertaining to the
Undergrounding Surcharge, which is a component of the Undergrounding Obligation
contained in section 9 of the Electric Franchise.
22
taxes’) (emphasis added); . . . . Also, if [p]laintiffs argument is
accepted, then the only consideration SDG&E pledges to the City is
the 3% Payment Obligation, and SDG&E could refuse to perform
every other obligation set forth in the Electric Franchise and still
possess the grant of the [f]ranchise [r]ights. This interpretation of
the Electric Franchise is not only nonsensical, but contrary to the
express language of the Electric Franchise stating that all SDG&E
obligations set forth in the Electric Franchise are given in exchange
for the [f]ranchise [r]ights.”
The City also argued that the franchise compensation that SDG&E pays the City
does not exceed the value of the franchise rights at the time that the City and SDG&E
entered into the 2002 Electric Franchise Amendment. The City argued in relevant part,
“[I]t is undisputed that from mid-1999 through 2001, the City and SDG&E engaged in
good faith arm’s length negotiations resulting in the [2002] Electric Franchise
Amendment. [Citations.]” After describing the evidence of such negotiations, the City
contended that “[t]he City and SDG&E engaged in the type of negotiations that the Jacks
[c]ourt considered reflective of the market value of the [f]ranchise [r]ights,” and
maintained that “[p]laintiffs can bring forth no admissible evidence disproving the City’s
showing on this point.” The City also argued that the reasonableness of the value of the
franchise compensation provisions in the 2002 Electric Franchise Amendment was
further demonstrated by the fact that the final compensation provisions in the 2002
Electric Franchise Amendment were similar to the compensation recommended by the
City’s consultants.
The City supported its motion with numerous documents detailing the history of
the relationship between SDG&E and the City. The documents included exhibits
containing the relevant City ordinances and related documents; declarations and
23
deposition testimony pertaining to the negotiations between the City and SDG&E;
declarations and deposition testimony pertaining to the implementation of the City’s
undergrounding program; documents from the City’s consultants; and PUC decisions and
related documents.25
6. Plaintiffs’ opposition
Plaintiffs filed an opposition to the City’s motion for summary judgment or
adjudication. In their opposition, plaintiffs argued that the “[Undergrounding] Surcharge
is not a franchise fee.” (Boldface & some capitalization omitted.) In support of this
argument, plaintiffs drew a distinction between consideration for franchise rights and
compensation for franchise rights. Plaintiffs maintained that “nothing in Jacks suggests
that any form of ‘consideration’ in a franchise agreement is ‘compensation’ for use of
public property and not a tax.” (Boldface omitted; italics added.) Plaintiffs argued that
the only “compensation SDG&E pays to the City for use of streets,” is the 3 percent of
gross receipts payment obligation contained in the Electric Franchise. (Boldface
omitted.) Plaintiffs also noted that while the 3 percent obligation is referred to as a
“franchise fee” and “compensation” in Ordinance O-19030, section 9 of the Electric
Franchise refers to SDG&E’s “obligation to budget for undergrounding,” as
“ ‘consideration,’ ” and section 9 does not use the term “compensation.”
25 During the summary judgment proceedings, the City requested that the trial court
take judicial notice of various City ordinances, resolutions and other provisions of the
City’s law.
24
Plaintiffs also argued that interpreting SDG&E’s Undergrounding Obligation
under section 9 of the Electric Franchise as compensation under Jacks would be
inconsistent with City Charter provisions related to franchise ordinances and the use of
franchise revenues. In addition, plaintiffs maintained that the conclusion that the
Undergrounding Surcharge is not a franchise fee was supported by the fact that,
according to plaintiffs, the purpose of the surcharge was to fund the undergrounding
program rather than “compensate” the City for the franchise. Finally, plaintiffs claimed
that the legislative history of the 2002 Electric Franchise Amendment further
demonstrated that the Undergrounding Surcharge was not a valid franchise fee.26
Plaintiffs’ opposition did not address the City’s argument that the franchise
compensation that SDG&E pays to the City does not exceed the reasonable value of the
franchise rights, other than to assert that the City had “offered no evidence” on this issue.
Plaintiffs supported their opposition with various exhibits, including deposition
testimony from City employees and consultants, discovery responses and documents
related to the enactment of Ordinance O-19030.
26 Plaintiffs reiterate these arguments on appeal. Accordingly, we describe in detail
plaintiffs’ arguments with respect to the City Charter, the purpose of the Undergrounding
Surcharge and the legislative history of the 2002 Electric Franchise Amendment in part
III.D.1.a–c, post.
25
7. The trial court’s ruling
After further briefing, and a hearing, the trial court granted the City’s motion for
summary judgment in August 2018.27 In its order, the trial court concluded that the
Undergrounding Surcharge is not a tax subject to voter approval for two independent
reasons. First, the trial court concluded that the Undergrounding Surcharge is a valid
franchise fee under Jacks and therefore, is not a tax. In reaching this conclusion, the trial
court interpreted Ordinance O-19030, and noted that it expressly provided that SDG&E’s
allocation of funds for undergrounding as mandated in the ordinance constituted a
“portion of the consideration,” for the franchise.
The court also ruled that, while the City may not charge a franchise fee that
exceeds the reasonable value of the franchise rights, the Jacks court did not narrowly
circumscribe how a franchise fee is to be “calculated and charged.” Accordingly, the trial
court ruled that SDG&E’s obligation to allocate funds for undergrounding in Ordinance
O-19030 “may properly constitute compensation,” under Jacks, even if such obligation
did not constitute “actual payment.” In addition, consistent with its conclusion that Jacks
does not circumscribe “how” a franchise fee is “calculated and charged,” the trial court
also rejected plaintiffs’ attribution of legal significance to the fact that Ordinance O-
19030 in Section 9 referred to the Undergrounding Obligation as “consideration” and
27 In its order, the trial court granted the City’s request for judicial notice and
overruled nearly all of the parties’ evidentiary objections. We discuss plaintiffs’ claim
that the trial court erred in sustaining the City’s objection to plaintiffs lodging a portion
of the legislative history pertaining to the adoption of Ordinance O-19030 in footnote 51,
post.
26
referred to the 3 percent payment of gross receipts in Section 4 as “compensation.” The
trial court determined that there is “no legal difference between the terms consideration
and compensation,” for purposes of determining whether the Undergrounding Surcharge
was a valid franchise fee.
The trial court also ruled that plaintiffs had not contended that the compensation
specified in Ordinance O-19030 exceeded the reasonable value of the franchise. The trial
court reasoned:
“The Court in Jacks recognized ‘that determining the value of a
franchise may present difficulties.’ (Jacks, supra, 3 Cal.5th at 269.)
‘Where a utility has an incentive to negotiate a lower fee, the
negotiated fee may reflect the value of the franchise rights, just as
the negotiated rent paid by the lessor [sic] of a publicly owned
building reflects its market value, despite the fact that a different
lessor [sic] might have negotiated a different rental rate.’ (Id. at
269–270.)[28] If there is an absence of ‘bona fide negotiations,’ or
in addition to such negotiations, ‘an agency may look to other
indicia of value to establish a reasonable value of franchise rights.’
(Id. at 270.) Plaintiffs do not dispute that bona fide negotiations
took place or that the value of the compensation in Ordinance No.
10466 or Ordinance O-19030 exceed[s] the reasonable value of the
franchise rights.[29] Plaintiffs merely assert it is not compensation.”
In the alternative, the trial court concluded that the Undergrounding Surcharge is a
regulatory fee.
28 We infer from the context that the Jacks court intended these references to
“lessor,” to instead be, “lessee.”
29 By this sentence, we understand the court to have meant that plaintiffs did not
dispute that bona fide negotiations had taken place and that plaintiffs did not contend that
the value of the compensation in Ordinance 10466 or Ordinance O-19030 exceeded the
reasonable value of the franchise rights.
27
Having concluded that the City had demonstrated as a matter of law that the
Undergrounding Surcharge is not a tax, the trial court granted the City’s motion for
summary judgment.30
The trial court entered a judgment in favor of the City in August 2018.
8. The appeal
Plaintiffs timely appealed from the judgment.31
30 In its ruling, the trial court noted that the plaintiffs’ motion for summary judgment
was moot in light of its ruling granting the City’s motion for summary judgment.
31 While this appeal was pending, plaintiffs filed a motion for judicial notice
requesting that this court take judicial notice of several documents.
We grant the plaintiffs’ unopposed request for judicial notice of the ordinance
containing the franchise agreement at issue in Jacks and numerous documents of which
the trial court in this case took judicial notice. (See Evid. Code, §§ 459, subd. (a) [stating
that “[t]he reviewing court shall take judicial notice of . . . each matter properly noticed
by the trial court,” and providing that “[t]he reviewing court may take judicial notice of
any matter specified in [Evidence Code] Section 452”]; 452, subd. (b) [permitting the
taking of judicial notice of “legislative enactments issued by . . . any public entity in the
United States”].) We also grant the plaintiffs’ unopposed request for judicial notice of
two additional documents (the ordinance containing SDG&E’s gas franchise and a City
Manager’s report related to the adoption of Ordinance O-19030) that are contained in the
record in this case. (See Evid. Code § 452, subd. (b) [legislative enactments]; Evans v.
City of Berkeley (2006) 38 Cal.4th 1, 7, fn. 2 [taking judicial notice of city manager’s
memorandum recommending resolution’s adoption “as legislative history reflecting on
the purposes of the enactment”].)
28
III.
DISCUSSION
The trial court properly granted the City’s motion for summary judgment
on the ground that the Undergrounding Surcharge is compensation validly
given in exchange for franchise rights under Jacks and is therefore
not a tax subject to voter approval under Proposition 218
Plaintiffs claim that the trial court erred in granting summary judgment to the City
on the ground that the Undergrounding Surcharge is compensation validly given in
exchange for franchise rights under Jacks and is therefore not a tax subject to voter
approval pursuant to Proposition 218.
A. The law governing summary judgment and the applicable standard of review
A moving party is entitled to summary judgment when the party establishes that it
is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) A defendant may make this showing by demonstrating that the plaintiff cannot
establish one or more elements of all of his causes of action, or that the defendant has a
complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th
461, 466.)
In reviewing a trial court’s ruling on a motion for summary judgment, the
reviewing court makes “ ‘an independent assessment of the correctness of the trial court’s
ruling, applying the same legal standard as the trial court in determining whether there
are any genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law.’ ” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129
Cal.App.4th 1133, 1143.)
29
As applied to this case, the City was entitled to summary judgment if it
demonstrated that the plaintiffs could not establish that “the [U]ndergounding
[S]urcharge is a tax that was not approved by [the] voters.”32 (Accord Jacks, supra,
3 Cal.5th at p. 267 [“Whether a charge is a tax . . . ‘is a question of law for the appellate
courts to decide on independent review of the facts’ ”].) We independently review the
trial court’s determination that the City was entitled to judgment as a matter of law
because the City successfully demonstrated that the plaintiffs could not establish that the
Undergrounding Surcharge is a tax under Proposition 218.
B. Proposition 218
“In 1996, state voters approved Proposition 218 . . . .” (Jacks, supra, 3 Cal.5th at
p. 259.) As relevant to this case, “Proposition 218 amended the Constitution to add voter
approval requirements for general and special taxes . . . (Cal. Const., art. XIII C,
§§ 1, 2.)” (Ibid.)
Proposition 218 provided in relevant part:
“SECTION 1. Definitions. As used in this article:
“(a) ‘General tax’ means any tax imposed for general governmental
purposes.
“[¶] . . . [¶]
32 We quote here from the plaintiffs’ brief summarizing an essential element of each
of their four causes of action in the operative second amended class action complaint. As
noted in part II.B.4, ante, those causes of action are styled as “Violation of Proposition
218,” “Declaratory Relief,” “Injunctive Relief,” and “Tax Refund.”
30
“(d) ‘Special tax’ means any tax imposed for specific purposes,
including a tax imposed for specific purposes, which is placed into a
general fund.”
“SEC. 2. Local Government Tax Limitation. Notwithstanding any
other provision of this Constitution:
“[¶] . . . [¶]
“(b) No local government may impose, extend, or increase any
general tax unless and until that tax is submitted to the electorate and
approved by a majority vote. . . .
“[¶] . . . [¶]
“(d) No local government may impose, extend, or increase any
special tax unless and until that tax is submitted to the electorate and
approved by a two-thirds vote.” (Prop. 218, § 3, approved Nov. 5,
1996).
Proposition 218, section 5 provides, “The provisions of this act shall be liberally
construed to effectuate its purposes of limiting local government revenue and enhancing
taxpayer consent.”
“Proposition 218 did not define the term “ ‘tax.’ ” (Citizens for Fair REU Rates v.
City of Redding (2018) 6 Cal.5th 1, 11.) However, in Jacks, as described below, the
California Supreme Court considered “whether [a] surcharge [in a utility franchise
agreement] [was] a tax subject to Proposition 218’s voter approval requirement, or a fee
that may be imposed by [a municipality] without voter consent.” (Jacks, supra, 3 Cal.5th
at p. 257.)
C. Jacks
In Jacks, a municipality and a utility entered into a franchise agreement to include
a charge of 2 percent of the utility’s gross annual receipts from the sale of electricity
31
within the municipality. (Jacks, supra, 3 Cal.5th at p. 255.)33 Pursuant to the
agreement, half of the 2 percent charge was to be collected from the utility itself, which
the utility could recover in its electricity rates. (Ibid.) The other half of the 2 percent
charge was to be collected from the utility’s customers through a separately billed
surcharge. (Ibid.) The Jacks plaintiffs claimed that the separately billed 1 percent
surcharge was a tax subject to Proposition 218. (Id. at p. 254.) The municipality
contended that the surcharge was a valid franchise fee for the use of the municipality’s
property in connection with the delivery of electricity and therefore was not subject to
Proposition 218 voter approval requirements. (Ibid.)34
After considering the intersection of the law governing initiatives requiring voter
approval of taxes with the law governing franchise fees, the Jacks court “h[e]ld that a
33 The Jacks court noted that the franchise agreement at issue in that case was the
most recent in “a series of franchise agreements granting [the utility] the privilege to
construct and use equipment along, over, and under the [municipality’s] streets to
distribute electricity.” (Jacks, supra, 3 Cal.5th at p. 254.) The Jacks court explained that,
“A utility franchise is a privilege to use public streets or rights-of-way in connection with
the utility’s provision of services to residents within the governmental entity’s
jurisdiction.” (Id. at p. 254, fn. 1.)
34 The Jacks court noted that “in 2010, after the charge at issue in this case was
adopted, state voters approved Proposition 26,” which amended the Constitution to define
the word “tax.” (Jacks, supra, 3 Cal.5th at p. 260.) Proposition 26 specified that for
purposes of voter approval of local taxes, “ ‘ “tax” means any levy, charge, or exaction of
any kind imposed by a local government.’ ” (Jacks, supra, at p. 260.) However, the
Jacks court made clear, “no party contends that it applies to the charges in this case,
which were imposed prior to the enactment of Proposition 26.” (Id. at p. 260, fn. 4.)
The same is true in this case. The Undergrounding Surcharge was imposed prior
to the enactment of Proposition 26, and plaintiffs do not make any claim premised on
Proposition 26 in the operative second amended complaint.
32
charge imposed in exchange for franchise rights is a valid fee rather than a tax . . . if the
amount of the charge is reasonably related to the value of the franchise.” (Jacks, supra,
3 Cal.5th at p. 257.)35 The Jacks court emphasized that its holding was premised on the
notion that a bargained for “exchange” (id. at p. 267) is the hallmark of a franchise fee
rather than a tax:
“[A] franchise is a form of property, and a franchise fee is the price
paid for the franchise. Moreover, historically, franchise fees have
not been considered taxes, and nothing in Proposition 218 reflects an
intention to treat amounts paid in exchange for property interests as
taxes. Finally, like the receipt by a discrete group of a special
benefit from the government, the receipt of an interest in public
property justifies the imposition of a charge on the recipient to
compensate the public for the value received. Therefore, sums paid
for the right to use a jurisdiction’s rights-of-way are fees rather than
taxes. But as explained below, to constitute compensation for the
value received, the fees must reflect a reasonable estimate of the
value of the franchise.” (Ibid.)
In reaching this conclusion, the Jacks court specifically rejected the plaintiffs’
contention that the surcharge was not a franchise fee because the utility’s ratepayers,
rather than the utility, paid the surcharge.36 (Jacks, supra, 3 Cal.5th at pp. 268–269.)
The Jacks court reasoned in part:
35 In reaching this conclusion, the Jacks court acknowledged that the provisions of
Proposition 218 were to be “ ‘liberally construed to effectuate its purposes of limiting
local government revenue and enhancing taxpayer consent.’ ” (Jacks, supra, 3 Cal.5th at
p. 267.)
36 The Jacks court also expressly rejected the municipality’s argument that it was the
utility, rather than its ratepayers, that paid the surcharge. (See Jacks, supra, 3 Cal.5th at
p. 270 [“The terms of the 1999 agreement belie the contention that [the utility] assumed a
burden to pay the surcharge”].) The Jacks court also rejected the municipality’s
contention that the surcharge resulted from a decision by the utility and the PUC. (See id.
33
“Plaintiffs observe . . . that [the utility’s] customers pay the
surcharge, but [the utility] receives the franchise rights; therefore,
they contend, the ratepayers do not receive any value in exchange
for their payment of the charge. . . . [P]ublicly regulated utilities are
allowed to recover their costs and expenses by passing them on to
their ratepayers. Among the charges included in the rates charged to
customers within the [municipality] is the initial 1 percent of gross
receipts paid in exchange for franchise rights, yet plaintiffs do not
contend that this initial 1 percent is a tax because ratepayers do not
receive the franchise rights. The fact that the surcharge is placed on
customers’ bills pursuant to the franchise agreement rather than a
unilateral decision by [the utility] does not alter the substance of the
surcharge; like the initial 1 percent charge, it is a payment made in
exchange for a property interest that is needed to provide electricity
to [the municipality’s] residents. Because a publicly regulated utility
is a conduit through which government charges are ultimately
imposed on ratepayers, we would be placing form over substance if
we precluded the [municipality] from establishing that the surcharge
bears a reasonable relationship to the value of the property interest it
conveyed to [the utility] because the [municipality] expressed in its
ordinance what was implicit—that once the PUC gave its approval,
[the utility] would place the surcharge on the bills of customers
within the [municipality].” (Ibid.)
The Jacks court acknowledged the prospect that “franchise fees . . . [could]
become a vehicle for generating revenue independent of the purpose of the fees.” (Jacks,
supra, 3 Cal.5th at p. 269.) However, rather than guarding against this possibility by
concluding that surcharges paid by ratepayers are not franchise fees,37 the Jacks court
at p. 271 [“the [municipality] and [the utility] agreed that [the utility] would impose the
surcharge on customers and remit the revenues to the [municipality]”].)
37 In dissent, Justice Chin maintained that the fact that the utility’s customers were
required to pay the surcharge demonstrated that the surcharge was not a franchise fee, but
was, in fact, a disguised tax. (Jacks, supra, 3 Cal.5th at p. 282 (dis. opn. of Chin, J.)
[“Because the Ordinance requires [the utility’s] customers to pay for rights and interests
the [municipality] has granted to [the utility], the charge does not constitute a ‘franchise
fee’ for purposes of the rule that ‘franchise fees [are not] considered taxes.’ . . . In reality,
34
explained that its “reasonable value” requirement provided the appropriate limitation.
(See ibid. [“To the extent a franchise fee exceeds any reasonable value of the franchise,
the excessive portion of the fee does not come within the rationale that justifies the
imposition of fees without voter approval”].)
In determining the reasonable value of a franchise, the Jacks court provided the
following guidance:
“We recognize that determining the value of a franchise may present
difficulties. Unlike the cost of providing a government improvement
or program, which may be calculated based on the expense of the
personnel and materials used to perform the service or regulation,
the value of property may vary greatly, depending on market forces
and negotiations. Where a utility has an incentive to negotiate a
lower fee, the negotiated fee may reflect the value of the franchise
rights, just as the negotiated rent paid by the lessor [sic] of a publicly
owned building reflects its market value, despite the fact that a
different lessor [sic] might have negotiated a different rental rate. In
the absence of bona fide negotiations, however, or in addition to
such negotiations, an agency may look to other indicia of value to
establish a reasonable value of franchise rights.
“In sum, a franchise fee must be based on the value of the franchise
conveyed in order to come within the rationale for its imposition
without approval of the voters. Its value may be based on bona fide
negotiations concerning the property’s value, as well as other indicia
of worth. Consistent with the principles that govern other fees, we
hold that to constitute a valid franchise fee under Proposition 218,
it is just an increase in the [municipality’s] user tax, which the [municipality] calls a
franchise fee”].) This point was the central thesis of Justice Chin’s dissent. (See, e.g., id.
at p. 275 [“The majority cites no support for its conclusion that a charge imposed on and
paid by someone who is granted nothing in return is not a tax as to that person so long as
someone else receives franchise rights for the payment”]; id. at p. 281 [stating that the
surcharge was not a franchise fee because it “is not a charge that ‘the holder of the
franchise’—[the utility]— ‘undert[ook] to pay’ ”]; ibid. [“The majority observes that ‘a
franchise fee is the purchase price of the franchise’ [citation], but it does not explain how
the [surcharge], which the [municipality] has imposed on someone other than the
purchaser of the franchise, meets this test”].)
35
the amount of the franchise fee must bear a reasonable relationship
to the value of the property interests transferred.” (Jacks, supra,
3 Cal.5th at pp. 269–270.)38
D. The Undergrounding Surcharge constitutes a valid charge imposed in exchange for
franchise rights under Jacks and is therefore not a tax
Plaintiffs claim that the Undergrounding Surcharge is a tax under Jacks because
the surcharge does not constitute compensation for SDG&E’s use of the City’s streets.
Plaintiffs further contend that, even assuming that the Undergrounding Surcharge is
compensation for the use of the City’s streets under Jacks, the surcharge remains a tax
because it “has no relationship to the value of the use of City streets.” (Some
capitalization omitted.)
1. The Undergrounding Surcharge constitutes compensation in exchange for
franchise rights under Jacks
Plaintiffs’ primary argument, both in the trial court and on appeal, is that the
Undergrounding Surcharge is not compensation given in exchange for franchise rights
under Jacks. While plaintiffs acknowledge that the Undergrounding Surcharge
constitutes “consideration . . . given [by SDG&E] to induce the City to grant SDG&E the
franchise,” plaintiffs argue that “not all consideration for a franchise is compensation for
the use of public property.” (Boldface & some capitalization omitted; italics added.) In
other words, plaintiffs attempt to draw a distinction between compensation given for the
38 The Jacks court explained that “[t]he litigation below did not address whether the
charges bear a reasonable relationship to the value of the property interests.” (Jacks,
supra, 3 Cal.5th at p. 254.) The Jacks court thus remanded the matter for further
proceedings. (Id. at p. 274.)
36
use of public property, which plaintiffs acknowledge is a valid franchise fee under
Jacks,39 and other consideration that a utility provides to induce a municipality to enter
into a franchise agreement, which plaintiffs claim does not constitute compensation under
Jacks.40 Plaintiffs advance this fundamental premise through a series of arguments
concerning the text and legislative history of the Electric Franchise, the City’s application
of the Electric Franchise and City Charter provisions pertaining to franchise revenues,
and the purpose of the Undergrounding Surcharge.
The City contends that the plaintiffs’ arguments are flawed and based on an
“extremely narrow interpretation of Jacks.” The City maintains that the trial court
properly determined that “all items of consideration conveyed and pledged by SDG&E to
the City under the terms of the Electric Franchise are compensation for the franchise
rights.”
As we explain below, we conclude that all consideration that is a “charge” and is
given in exchange for franchise rights, constitutes “compensation for the use of
government property” as that phrase is used in Jacks. (See Jacks, supra, 3 Cal.5th at
p. 254 [“charges that constitute compensation for the use of government property are not
39 For example, plaintiffs argue that in order to determine whether the
Undergrounding Surcharge is a tax under Jacks, we must determine “whether SDG&E
agreed to pay the [Undergrounding Surcharge] as ‘compensation for use of its
streets,’ . . . .”
40 Plaintiffs argue, “[T]he sole compensation the City agreed to accept for the use of
its streets is the 3% franchise fee and . . . the other consideration [in the Electric
Franchise] is given to induce the City to grant SDG&E the franchise.” (Italics added.)
37
subject to Proposition 218’s voter approval requirements”].) In addition, after
considering each of plaintiffs’ arguments with respect to text, legislative history,
application and purpose, we further conclude that the Undergrounding Surcharge
constitutes compensation in exchange for franchise rights under Jacks, and thus, that the
surcharge is not a tax subject to Proposition 218's voter approval requirements.
a. Plaintiffs’ interpretation of Jacks is unreasonably narrow and is
inconsistent with Jacks’s central premise
As discussed above, plaintiffs’ arguments on appeal rest largely on the premise
that, in determining whether a charge contained in a franchise agreement is a tax under
Proposition 218, a court must determine whether the charge is merely “consideration to
induce” the granting of the franchise, which, according to plaintiffs, is not compensation
under Jacks. Plaintiffs articulate this theory most clearly in their reply brief in stating the
following:
“While compensation in a contract is certainly consideration, not all
consideration is compensation. And all valid consideration serves as
an inducement to the counter party’s agreement to enter into a
contract. [Citation.]
“Here, the plain language of the franchise ordinances is unequivocal
that the 3% fee is the compensation SDG&E agreed to pay to the
City for the use of its streets. [Citation.] All other terms and
conditions in the franchise, including SDG&E’s Rule 20A
undergrounding budgets, are valid consideration to induce the City
to grant the franchise. SDG&E agreed to suffer prejudice by
budgeting additional funds for undergrounding its facilities beyond
the amounts mandated by the PUC. [Citation.] But the Rule 20A
undergrounding obligation is not compensation for SDG&E’s use of
38
its streets. Rather, it is one of several terms that served to induce the
City to grant the franchise.”41
Yet, there is nothing in Jacks that suggests that the Supreme Court drew any
distinction between “consideration to induce” and “compensation” in this context, and
nothing in Jacks indicates that such a distinction has any significance in determining the
existence of a tax under Proposition 218. The Jacks court did not even use the word
“consideration” in its opinion,42 and plaintiffs have not offered any rationale for why the
Jacks court would conclude that monetary consideration given to induce the granting of a
franchise would be considered a tax while “compensation for the use of government
property” is not a tax. (Jacks, supra, 3 Cal.5th at p. 254, italics added.)
In addition, many of the examples that plaintiffs provide in their brief on appeal of
“consideration” contained in the Electric Franchise that plaintiffs contend are not
“compensation” under Jacks are also not monetary. For example, plaintiffs refer to
SDG&E’s promises in the Electric Franchise to regularly report its financials and to
41 Plaintiffs’ references to SDG&E’s “Rule 20A undergrounding budgets,” and the
“Rule 20A undergrounding obligation” are puzzling. Plaintiffs challenge the
Undergrounding Surcharge and acknowledge that “projects funded by the surcharge are
not PUC Rule 20A projects.” (Italics added.) Nevertheless, we understand plaintiffs’
central point, which is repeated throughout their briefing, to be that, while the
Undergrounding Surcharge may be consideration given by SDG&E to induce the
granting of the franchise, it is not compensation under Jacks. Or, as plaintiffs put it in the
introduction to their opening brief, “This appeal raises a fundamental question: is all
consideration in a franchise agreement ‘compensation for the use of public property’?”
42 To be precise, the Jacks court did not use the word “consideration,” in the sense of
contractual consideration. It did talk about another court’s “consideration” of an issue.
(Jacks, supra, 3 Cal.5th at p. 269 [“Although Sinclair Paint’s consideration of the
purposes”].)
39
comply with the law. Even assuming, strictly for purposes of this opinion, that these
nonmonetary forms of consideration do not constitute compensation under Jacks, such
forms of consideration also are not charges such that they could conceivably be a tax
under Proposition 218. (See Jacks, supra, 3 Cal.5th at p. 257 [stating that Proposition
218 was among voter initiatives requiring “voter approval of certain charges,” and
explaining that whether the surcharge “required voter approval hinges on whether it is a
valid charge under the principles that exclude certain charges from voter approval
requirements” (italics added)].)
However, there is no support in Jacks for the proposition that a utility may
promise monetary consideration to induce the granting of a franchise that is a charge for
purposes of Proposition 218, but is not compensation under Jacks.43 This distinction
appears only in plaintiffs’ briefing, and not in Jacks. Instead, whether labeled as
“consideration to induce,” or as “compensation,” as the Jacks court itself expressly
“h[e]ld,” any “charge imposed in exchange for franchise rights is a valid fee rather than a
tax . . . if the amount of the charge is reasonably related to the value of the franchise.”
(Jacks, supra, 3 Cal.5th at p. 257, italics added.)
Indeed, the central rationale of Jacks strongly supports the conclusion that any
charge that serves as “consideration to induce” the granting of a franchise also constitutes
“compensation” as that term is used in Jacks. (Jacks, supra, 3 Cal.5th at p. 254.) That is
43 This is true as long as the amount of consideration promised is reasonably related
to the value of the franchise.
40
because, as discussed above, Jacks, at its core, is premised on the idea that consideration
promised in exchange for franchise rights is not a tax. The Jacks court emphasized this
idea repeatedly throughout its opinion. (E.g., Jacks, supra, 3 Cal.5th at p. 257 [“a charge
imposed in exchange for franchise rights is a valid fee” (italics added)]; id. at p. 262
[“restrictions on taxation do not encompass amounts paid in exchange for property
interests” (italics added)]; id. at p. 267 [“nothing in Proposition 218 reflects an intention
to treat amounts paid in exchange for property interests as taxes” (italics added)]; id. at
p. 268 [“The aspect of the transaction that distinguishes the charge from a tax is the
receipt of value in exchange for the payment” (italics added)].) Whether labeled as
consideration given to induce the granting of a franchise or as compensation for the
franchise, monetary charges given in exchange for a franchise fit comfortably within the
Jacks court’s specification of nontax franchise fees.
Jacks’s rooting of its definition of nontax franchise compensation in the notion of
an exchange is also consistent with City & Co. of S. F. v. Market St. Ry. Co. (1937)
9 Cal.2d 743 (City & Co. of S. F.), on which plaintiffs rely in their reply brief.44 Indeed,
Jacks cites City & Co. of S. F. for the proposition that “a franchise fee is the purchase
price of the franchise.” (Jacks, supra, 3 Cal.5th at p. 262, citing City & Co. of S. F.,
supra, 9 Cal.2d at p. 749.)
44 Plaintiffs contend City & Co. of S. F. reveals “[t]he invalidity of the City’s
position.”
41
In City & Co. of S. F., a municipality brought an action against a railway company
to collect a municipal “license tax” on street cars operated by the railway company. (City
& Co. of S. F., supra, 9 Cal.2d at p. 744.) The railway company contended that the
municipal taxes were invalid pursuant to a state constitutional provision that established a
tax on the percentage of gross receipts from railway companies and provided that such
tax would be “ ‘in lieu of all other taxes and licenses . . . .’ ” (Ibid.) The municipality, in
turn, maintained that the municipal license tax was lawful because the “orders and
ordinances by which it granted franchises provid[ed] either for a ‘license’ or ‘license tax’
in the sum of $15 per car per annum,” (id. at p. 747) and the state constitutional provision
contained a proviso requiring a company to pay “ ‘any amount agreed to be paid or
required by law to be paid for any special privilege or franchise granted by any of the
municipal authorities of this state.’ ” (Id. at p. 744.) The City & Co. of S. F. court quoted
the relevant constitutional provision as follows:
“ ‘Such taxes shall be in lieu of all other taxes and licenses, state,
county and municipal, upon the property above enumerated
[operative property] of such companies except as otherwise in this
section provided; provided, that nothing herein shall be construed to
release any such company from the payment of any amount agreed
to be paid or required by law to be paid for any special privilege or
franchise granted by any of the municipal authorities of this state.’ ”
(Ibid., italics added.)
The City & Co. of S. F. court considered whether the charge was a license tax
subject to the preemptive clause of the constitutional provision or instead, a franchise
payment subject to the proviso contained therein. (See City & Co. of S. F., supra,
9 Cal.2d at p. 745 [“The question involved on this appeal is whether the ‘license tax’ . . .
42
is an amount ‘agreed to be paid or required by law to be paid’ for the franchises under
which the defendant operates its cars”].) In determining that the charge was a prohibited
license tax, the City & Co. of S. F. court stated, “There is a clear distinction between the
amount agreed to be paid for property, or required by law to be paid for it, that is, the
purchase price, and taxes thereafter levied upon it or exacted of the owner in respect of
said property.” (Id. at p. 749.) In reaching this conclusion, the City & Co. of S. F. court
emphasized that the license tax at issue in the case arose from a source independent of the
franchise agreement. (Id. at p. 748 [“even in the absence of provision for a tax or license
in the grant of franchise . . . the grantee, in the absence of express exemption from
taxation in the grant, is subject to taxes in respect of this species of property, as of other
types of property”].) Thus, the City & Co. of S. F. court concluded that the license taxes
were not “amounts ‘agreed to be paid or required by law to be paid for’ the franchises,
within the proviso of [the state] Constitution, preserving to municipalities the right to
collect such amounts.” (Id. at p. 750.)
While the City & Co. of S. F. court concluded that the license taxes in that case did
not arise from the franchise agreements in which they were referenced, the court
concluded that the essence of franchise compensation under the state constitutional
provision at issue was whether the charge at issue was an amount paid “for” the franchise
rights. (City & Co. of S. F., supra, 9 Cal.2d at p. 750, italics added; see Jacks, supra,
3 Cal.5th at p. 257 [describing a franchise fee as “a charge imposed in exchange for
franchise rights” (italics added)].)
43
In sum, Jacks and the case law on which it is premised, establish that any “charge
imposed in exchange for franchise rights,” (Jacks, supra, 3 Cal.5th at p. 257, italics
added) constitutes franchise compensation, provided that the amount of the charge bears
a reasonable relationship to the value of the franchise rights. (Ibid.) We therefore reject
plaintiffs’ suggestion that certain charges, namely, those that serve as “consideration to
induce” the granting of a franchise, are exempt from Jacks’s rationale. In the following
sections, we apply this understanding of Jacks in considering each of plaintiffs’ specific
arguments as to text, legislative history, application and purpose in concluding that the
Undergrounding Surcharge amounts to franchise compensation and is therefore not
subject to Proposition 218’s voter approval requirements under Jacks.
b. The text of the Electric Franchise supports the conclusion that the
Undergrounding Surcharge is compensation for franchise rights
under Jacks
Section 9(b) of the Electric Franchise contains the Undergrounding Surcharge and
provides for a 3.53 percent surcharge to be imposed on ratepayers’ bills. (See pt.
II.A.5.c, ante.) As a monetary obligation to be paid by ratepayers, we agree with
plaintiffs that the surcharge may reasonably be considered a “charge” potentially subject
to voter approval under Proposition 218. (See Jacks, supra, 3 Cal.5th at p. 257
[“Whether the surcharge required voter approval hinges on whether it is a valid charge
under the principles that exclude certain charges from voter approval requirements”].)
As noted in part II.A.5.c, ante, the recitals to the 2002 Electric Franchise
Amendment provided that the “[p]arties have agreed that the funding for the obligations,”
imposed by the amendment would come, in part, from the Undergrounding Surcharge.
44
Further, the 2002 Electric Franchise Amendment specifically mandated that SDG&E
would apply to the PUC to budget amounts funded in part by the Undergrounding
Surcharge.45 (Ord. O-19030, § 3.) In addition, section 9(e) of the Electric Franchise
expressly provides, “This section is intended only to be a measure of a portion of the
consideration to be paid by Grantee to City for the rights and privileges granted
herein . . . .” (Italics added.) Moreover, section 12 of the Electric Franchise provides,
“This franchise is granted upon each and every condition herein contained, and shall ever
be strictly construed against Grantee.”46
Thus, the text of the Electric Franchise supports the conclusion that the
Undergrounding Surcharge was consideration given by SDG&E in exchange for
franchise rights. In other words, unlike the license tax at issue in City & Co. of S. F.,
supra, 9 Cal.2d at page 748, the text of the Electric Franchise supports the conclusion that
the Undergrounding Surcharge was not unilaterally imposed by the City pursuant to its
45 For an explanation of the PUC’s involvement in the approval of this type of
surcharge see footnote 6, ante.
46 Section 16 of the 2001 MOU also made clear that SDG&E’s agreement to the
Undergrounding Surcharge was part of the consideration given to the City for the
franchise in that it specified that, if the surcharge were not approved by the PUC, the City
and SDG&E would continue to negotiate the terms of the amendment of the Electric
Franchise or submit the matter to arbitration. Thus, section 16 of the 2001 MOU also
makes clear that the City did not unilaterally impose the Undergrounding Surcharge, and
that the surcharge was based on an agreement between the City and SDG&E.
45
taxing powers independent of the Electric Franchise.47 Further, since, we have
concluded in part III.D.1.a, ante, that all consideration that is a “charge” and is given in
exchange for franchise rights constitutes “compensation for the use of government
property” as that phrase is used in Jacks, supra, 3 Cal.5th at page 254, the text of the
Electric Franchise supports the conclusion that the Undergrounding Surcharge is
compensation given for the use of government property under Jacks.
Plaintiffs’ textual arguments are primarily based on their contention that “the City
made a clear distinction between general consideration for the City granting the franchise
and compensation (i.e. recompense) for use of its streets.” For example, plaintiffs point
out that section 4 of the Electric Franchise refers to the 3 percent payment obligation as
“compensation,”48 while section 9, which contains the Undergrounding Surcharge, does
not use the term “compensation.” Plaintiffs also note that the recitals to Ordinance O-
19030 refer to the 3 percent payment obligation as the “franchise fee.” In explaining the
purported significance of the use of such terms, plaintiffs return to their central argument
that not all consideration given in exchange for a franchise is compensation for franchise
rights under Jacks.
47 Stated differently, it is plain from the text of the Electric Franchise that SDG&E
could not refuse to comply with its obligations pertaining to undergrounding and still
maintain its electric franchise.
48 Plaintiffs also contend that the reason that the City used the term “compensation”
in Electric Franchise, sections 4 and 5 was to comply with sections of the City Charter
specifying certain requirements for franchise agreements entered into by the City (City of
San Diego Charter, §§ 104, 105).
46
We reject this argument for two fundamental reasons. First, for the reasons
explained above, we conclude that Jacks drew no distinction between monetary
consideration given to induce the granting of a franchise and compensation given for a
franchise for purposes of determining the applicability of voter approval requirements of
Proposition 218.
Second, plaintiffs’ textual argument is premised on the notion that the City
anticipated the distinction, which we have rejected, between compensation and
consideration that plaintiffs glean from Jacks, and intended for only the 3 percent
payment obligation to constitute franchise compensation.49 As plaintiffs argue, “the
language of the ordinances makes it clear that the City did not intend all franchise
consideration, including the surcharge, to be compensation for use of City streets.”
(Italics altered.) We are not persuaded that the City anticipated the distinction that
plaintiffs draw from Jacks—a decision issued more than a decade after the adoption of
the 2002 Electric Franchise Amendment and that draws no distinction between
compensation and consideration—and elected to use language in describing the
Undergrounding Surcharge that would subject the surcharge to the voter approval
requirements of Proposition 218. It is far more plausible that, consistent with our
49 Plaintiffs note that the ordinance at issue in Jacks did refer to the surcharge at
issue in that case as “compensation,” and argue, that if the City had intended for
“SDG&E’s undergrounding agreement,” in section 9 of the Electric Franchise to
constitute compensation, the City would have specified that SDG&E’s obligations were
given “as compensation for the use of the streets of the City.” (Boldface omitted; italics
added.)
47
conclusion in part III.D.1.a, ante, the City simply did not perceive there to be any
significant difference between the terms compensation and consideration in this context.
This conclusion is supported by the fact that section 4 of the Electric Franchise, which
describes the 3 percent payment obligation as “compensation” (Electric Franchise, § 4(b),
italics added) is itself titled “CONSIDERATION.” (Italics added.)
In any event, we are not bound by the label that the City and SDG&E ascribed to
the Undergrounding Surcharge. (Cf. Plantier v. Ramona Municipal Water Dist. (2019)
7 Cal.5th 372, 381 [noting that Proposition 218 was adopted because “local governments
were able to increase rates for services by labeling them fees, charges, or assessments
rather than taxes”]; accord Jacks, supra, 3 Cal.5th at p. 271 [considering whether a
charge that is “nominally a franchise fee,” in reality “constitutes a tax”]; see also id. at
p. 280 [“In determining whether a charge is a tax, courts ‘are not bound by what the
parties may have called the liability’ [citation]” (dis. opn. of Chin, J.)]. While the City
and SDG&E may not have foreseen that a surcharge that a utility agreed to collect from
its ratepayers (i.e., one that was not paid directly out of the utility’s own assets), was a
franchise fee prior to Jacks, our task is to examine whether the characteristics of the
Undergrounding Surcharge meet the test for franchise compensation under Jacks. For the
reasons discussed throughout this opinion, we conclude that the Undergrounding
Surcharge meets that test.
48
Finally, we reject plaintiffs’ argument that because SDG&E did not agree to “pay
the surcharge to the City,” “the language in [Ordinance] 10466, section 9[50] relied upon
by the trial court is not applicable to the surcharge at all.” (Boldface omitted.) In making
this argument, plaintiffs contend that SDG&E acts only as “the City’s collection agent,”
because ratepayers, rather than SDG&E, pay the surcharge. The same was true in Jacks,
and the Supreme Court squarely rejected the notion that this fact demonstrated that the
surcharge was not a franchise fee. The Jacks court stated that it would place “form over
substance,” to attribute significance to the fact that a utility surcharge is placed directly
on ratepayers’ bills, rather than being paid by the utility itself when determining whether
a surcharge is a tax. (Jacks, supra, 3 Cal.5th at p. 269.) The Jacks court reasoned that
this was so because a “publicly regulated utility is a conduit through which government
charges are ultimately imposed on ratepayers.” (Ibid.) Plaintiffs offer no basis for
distinguishing Jacks with respect to this issue. Thus, we reject plaintiffs’ argument that
the Undergrounding Surcharge does not constitute compensation for the franchise
because SDG&E does not pay the surcharge.
50 The language to which plaintiffs refer provides, “This section is intended only to
be a measure of a portion of the consideration to be paid by Grantee to City for the rights
and privileges granted herein . . . .” (Ord. 10466, § 9(e).) This language remained in the
Electric Franchise after the 2002 Electric Franchise Amendment.
49
c. Plaintiffs fail to identify any legislative history of the Electric Franchise
that supports the conclusion that the Undergrounding Surcharge is not
compensation for franchise rights under Jacks
Plaintiffs contend that the legislative history of the Electric Franchise
demonstrates that the Undergrounding Surcharge is not franchise compensation under
Jacks. Plaintiffs raise two arguments in support of this claim. Neither is persuasive.
First, plaintiffs note that, in 1970, together with the Electric Franchise, the City entered
into a gas franchise with SDG&E, and that the City and SDG&E amended both
franchises in 2002. Plaintiffs observe that both the gas and electric franchise agreements
included provisions mandating payment of 3 percent of gross receipts for compensation
for the use of the City’s streets, but that the “City imposed the [Undergrounding
Surcharge] only upon electricity customers.” (Italics added.) Plaintiffs claim that this
disparity demonstrates that the Undergrounding Surcharge was a “revenue stream for [the
City’s] expansive undergrounding program,” and did not “compensate the City for using
its streets.”
To the extent that plaintiffs intend to argue that the City was obligated to agree to
the same compensation for the two franchises, but failed to do so, this argument is
unpersuasive because plaintiffs have not established that the gas and electric franchises
are equally valuable. Thus, the fact that the City charged more for the use of its streets
for the Electric Franchise does not establish that the higher price was, in part, a disguised
tax. To the extent that plaintiffs intend to argue that the City agreed to receive the same
compensation for the two franchises, but imposed a utility tax solely on the electric
franchise, this argument amounts to nothing more than the contention that we rejected
50
above, i.e., that the Undergrounding Surcharge did not constitute compensation for the
use of the City’s streets under Jacks. We reject it here for the same reasons.
Plaintiffs also contend that the fact that the 3 percent payment obligation is
referred to as a “franchise fee” at various places in the documents that comprise the
legislative history of the 2002 Electric Franchise Amendment,51 demonstrates that the
3 percent payment obligation is “the sole compensation for use of City streets.” This
argument, too, is nearly identical to the argument that plaintiffs make with respect to the
purported significance of the use of the term “compensation” in section 4 of the Electric
Franchise. Yet, whether contained in the text of the Electric Franchise or in its legislative
history, we conclude that references to the 3 percent payment obligation as a “franchise
fee” or as “compensation,” does not demonstrate that the Undergrounding Surcharge is
not “a charge imposed in exchange for franchise rights” under Jacks, supra, 3 Cal.5th at
page 257.52
51 Specifically, plaintiffs note that the 3 percent payment obligation is referred to as a
“franchise fee” in various enactments (e.g., the resolutions extending negotiations that led
to the 2002 Franchise Amendment, the 2001 MOU, a December 2001 City Manager’s
report recommending adoption of the 2002 Franchise Amendment, and the minutes of the
January 2002 City Council meeting adopting the 2002 Franchise Amendment).
As noted in footnote 27, ante, the trial court sustained the City’s objections to the
plaintiffs’ introduction of the City Manager’s report and the City Council’s minutes. The
plaintiffs challenge the trial court’s ruling sustaining these objections on appeal. For the
reasons stated in the text, we conclude that, even assuming that the trial court erred in
sustaining the City’s evidentiary objections to these documents, none of the legislative
history demonstrates that the Undergrounding Surcharge is a tax.
52 In their reply brief, plaintiffs cite a case, County of Alameda v. Pacific Gas &
Electric Co. (1997) 51 Cal.App.4th 1691, decided prior to Jacks and contend, “With
respect to the term ‘franchise fee,’ courts have concluded that a fee paid to a municipality
51
d. Plaintiffs’ contention that the City’s application of the Electric
Franchise demonstrates that the Undergrounding Surcharge is not
franchise compensation under Jacks is without merit
Plaintiffs note that City Charter section 103.1A mandates that the City place “25
percent of all moneys derived from the revenues accruing to the City from any franchises
for the transmission and distribution of gas, electricity and steam within the City of San
Diego,” into a fund called the Environmental Growth Fund. Plaintiffs further note that,
while the City places 25 percent of the funds that it receives from SDG&E’s payment of
the 3 percent payment obligation into the Environmental Growth Fund, the City has never
placed revenue from the Undergrounding Surcharge into this fund. Plaintiffs contend
that this course of conduct demonstrates that the City has “never intended or considered
the [U]ndergrounding [S]urcharge to be revenue accruing . . . from any franchise fee.”
We are not persuaded. Plaintiffs’ argument implicitly rests on the premise that the
meaning of “moneys derived from the revenues accruing to the City from any franchises
for the transmission and distribution of . . . electricity . . . within the City of San Diego,”
(City Charter, § 103.1A) has the same meaning as “a charge imposed in exchange for
franchise rights” under Jacks. (Jacks, supra, 3 Cal.5th at p. 257.) Yet, plaintiffs present
as a percentage of gross receipts to use/lease public property (i.e. the 3% fee) is a
franchise fee.” (Italics added.) Even assuming that, prior to Jacks, the term franchise fee
ordinarily connoted a fee paid as a percentage of a utility’s gross receipts, that is clearly
not the case in the wake of Jacks, since in Jacks, the Supreme Court concluded that a
surcharge imposed directly on ratepayers was a franchise fee, so long as it bore a
reasonable relationship to the franchise rights conveyed to the utility. (Jacks, supra,
3 Cal.5th at p. 257.) Thus, plaintiffs’ heavy reliance on the fact that the ordinance and its
legislative history refer to the 3 percent payment obligation as a “franchise fee” or as
“compensation,” does not demonstrate that the Undergrounding Surcharge is not a
franchise fee.
52
no argument as to why terms in the City Charter should be interpreted identically with
concepts from a Supreme Court decision.
Even when interpreting the meaning of two legislative acts, “statutes should be
construed together only if they stand in pari materia.” (Walker v. Superior Court (1988)
47 Cal.3d 112, 124.) “ ‘Statutes are considered to be in pari materia when they relate to
the same person or thing, to the same class of person or things, or have the same purpose
or object. Characterization of the object or purpose is more important than
characterization of subject matter in determining whether different statutes are closely
enough related to justify interpreting one in light of the other. It has been held that where
the same subject is treated in several acts having different objects the statutes are not in
pari materia. “The adventitious occurrence of . . . similar subject matter, in laws enacted
for wholly different ends will normally not justify applying the rule.” ’ ” (Ibid., italics
added.)
The City Charter provision establishing the Environmental Growth Fund does not
serve the same object as does the test for franchise compensation in Jacks. (Compare
City Charter section 103.1A [“The Environmental Growth Fund shall be used exclusively
for the purpose of preserving and enhancing the environment of the City of San Diego in
whatever manner is deemed appropriate by the City Council of The City of San Diego”]
with Jacks, supra, 3 Cal.5th at p. 257 [“Whether the surcharge required voter approval
hinges on whether it is a valid charge under the principles that exclude certain charges
from voter approval requirements”].) Thus, there is no reason to conclude that the
meaning of franchise compensation for purposes of the Environmental Growth Fund
53
would be identical to the meaning of that term as used in Jacks. A court might conclude
that revenue, such as the Undergrounding Surcharge, that is dedicated for a specific use
by way of a franchise agreement is not subject to allocation into the Environmental
Growth Fund for purposes of the City Charter,53 even though such revenue is
compensation under Jacks. Simply put, there is no necessary interpretative connection
between the two.
Moreover, even assuming that the City improperly failed to deposit the
Undergrounding Surcharge revenue into the Environmental Growth Fund, such error
might well have resulted from inadvertence, negligence, or even malfeasance that was
entirely distinct and unrelated to the City’s determination of whether the Undergrounding
Surcharge constitutes a charge for franchise rights under Jacks.54 Plaintiffs point to no
evidence demonstrating that the City elected not to deposit the Undergrounding
Surcharge revenues into the Environmental Growth Fund because the City believed that
such revenues were not franchise compensation under Jacks.
Accordingly, we reject plaintiffs’ argument that the City’s failure to deposit
revenues from the Undergrounding Surcharge into the Environmental Growth Fund
demonstrates that the surcharge is a tax rather than franchise compensation under Jacks.
53 This question is not before this court and we therefore express no opinion with
respect to whether this would be a proper interpretation and application of the City
Charter.
54 We emphasize that we do not conclude that the City improperly failed to allocate
Underground Surcharge funds to the Environmental Growth Fund.
54
e. Plaintiffs’ contention that the Undergrounding Surcharge lacks the
characteristics of a franchise fee is without merit
Plaintiffs note that in Jacks, the Supreme Court identified the following
characteristics of a franchise fee:
“[A] fee paid for an interest in government property is compensation
for the use or purchase of a government asset rather than
compensation for a cost. Consequently, the revenue generated by
the fee is available for whatever purposes the government chooses
rather than tied to a public cost.” (Jacks, supra, 3 Cal.5th at p. 268.)
Plaintiffs contend that the Undergrounding Surcharge lacks these attributes
because the surcharge may be used only for undergrounding and, according to plaintiffs,
the surcharge is “unrelated to the use of any City asset.”
The latter argument amounts to nothing more than an assertion that the
Undergrounding Surcharge is not compensation for the use of the City’s streets. We
reject that argument, because, as described in part III.D.1.b, ante, the text of the Electric
Franchise supports the conclusion that the Undergrounding Surcharge is part of the
compensation that SDG&E paid for the use of the City’s streets.
As to the former argument, there is nothing in Jacks that precludes a government
from entering into an agreement that governs its use of franchise fee payments. In fact,
the agreement at issue in Jacks, “provided that half of the revenues generated by the
surcharge were to be allocated to the City’s general fund and half to a City
undergrounding projects fund.” (Jacks, supra, 3 Cal.5th at p. 256.)55 Nevertheless, the
55 The Jacks court stated that the municipality later decided to allocate all of the
revenues generated by the surcharge to its general fund. (Jacks, supra, 3 Cal.5th at
55
Jacks court concluded that the surcharge at issue in that case was a valid franchise fee as
long as it did not exceed the reasonable value of the franchise. (Id. at p. 254.)
In addition, in Jacks, in specifying that franchise fees are “available for whatever
purposes the government chooses,” the Supreme Court was merely clarifying that
franchise fees, unlike other fees, are not limited to the costs of providing a service or
benefit (as with special assessments) or offsetting the impact of the payee’s activities (as
with development and regulatory fees). (Jacks, supra, 3 Cal.5th at p. 268 [stating that,
with respect to franchise fees, “the revenue generated by the fee is available for whatever
purposes the government chooses rather than tied to a public cost”].) However, there is
nothing in Jacks that suggests that a government’s agreement in a franchise agreement to
use franchise fees in a specified manner demonstrates that such fees are taxes.
Plaintiffs have not advanced any reason why a limitation on the use of surcharge
funds for undergrounding would support the conclusion that the surcharge is a tax. On
the contrary, if anything, the fact that the City agreed with SDG&E to use the
Undergrounding Surcharge revenues for undergrounding supports the conclusion that the
surcharge is not a tax. That is because, as the Jacks court recognized, an essential
attribute of a taxation is that “ ‘no compensation is given to the taxpayer except by way
of governmental protection and other general benefits.’ ” (Jacks, supra, 3 Cal.5th at
p. 268, quoting 9 Witkin, Summary of Cal. Law (10th ed. 2005) Taxation, § 1, p. 25].)
The City’s promise to SDG&E to use the Undergrounding Surcharge funds for
p. 256.) The Jacks court did not discuss the authority pursuant to which the municipality
authorized such a reallocation.
56
undergrounding supports the conclusion that SDG&E received something other than
“ ‘general benefits,’ ” in exchange for agreeing to the surcharge. (Ibid.)
f. Conclusion
In Jacks, the California Supreme Court rejected the argument that a utility
surcharge contained in a franchise agreement to be paid directly by ratepayers, rather than
the utility itself, was a tax rather than a franchise fee. (Jacks, supra, 3 Cal.5th at p. 257.)
The Jacks court reasoned that this was so because a charge imposed in exchange for
franchise rights is not a tax ([ibid.]),56 and that to conclude otherwise merely because
ratepayers paid the charge would be to place “form over substance.” (Id. at p. 269.)
As with the surcharge in Jacks, the Undergrounding Surcharge in this case is a
charge imposed in exchange for franchise rights. While plaintiffs attempt to draw a
distinction between consideration and compensation in this context, that purported
distinction amounts to nothing more than an argument that places “form over substance”
(Jacks, supra, 3 Cal.5th at p. 269) and is inconsistent with the central teaching of Jacks.
Accordingly, we conclude that the Undergrounding Surcharge constitutes compensation
in exchange for franchise rights under Jacks.
56 This is the case as long as the charge is reasonably related to the value of the
franchise rights. (Jacks, supra, 3 Cal.5th at p. 257.)
57
2. The City demonstrated that the compensation that it receives from the
Undergrounding Surcharge bears a reasonable relationship to the value of
the franchise rights under Jacks
Plaintiffs contend that “the surcharge has no relationship to the value of the use of
City streets.” (Boldface & some capitalization omitted.) Plaintiffs offer several
arguments in support of this claim, but none has merit.57
First, plaintiffs contend that “[i]f the surcharge is not compensation for the use of
City streets and is unrelated to that property right, it cannot have any relationship to the
value of those rights.” (Italics altered.) We concluded in part III.D.1, ante, that the
Undergrounding Surcharge constitutes compensation in exchange for franchise rights
under Jacks. Accordingly, we reject plaintiffs’ contention that the surcharge does not
have any relationship to the value of the Electric Franchise rights.
Plaintiffs also maintain that the City failed to carry its “burden of proof” to
establish that the value of the surcharge reasonably relates to the value of the franchise
rights. Specifically, plaintiffs contend that the City failed to present a “valuation
analysis” of the franchise rights, and that the City’s evidence as to the negotiations
leading to the adoption of the 2002 Electric Franchise Amendment did not demonstrate
that the negotiations were “bona fide.” We are unpersuaded.
57 As noted in part II.B.6, ante, plaintiffs’ opposition to the City’s motion for
summary judgment did not address the reasonable value prong of Jacks other than to
assert that the City had “offered no evidence” on this issue. Notwithstanding any
possible forfeiture, we address all of the plaintiffs’ arguments on appeal with respect to
this issue and conclude that they are meritless.
58
The City was not required to present a “valuation analysis,” under Jacks, and thus,
the absence of such an analysis does not demonstrate that the City failed to carry its
burden of proof. The Jacks court said that a municipality could establish the value of a
franchise through “bona fide negotiations.” (Jacks, supra, 3 Cal.5th at p. 270.) The City
offered extensive and undisputed evidence concerning the negotiations surrounding both
the 1970 Electric Franchise and the 2002 Electric Franchise Amendment. (See pt.
II.A.3.a and pt. II.A.5.a, ante.) In particular, with respect to the negotiations pertaining to
the amendment, as described in part II.A.5.a, ante, the City hired consultants to advise it
with respect to the amendment and the City received a memorandum from the consultants
concerning issues that were likely to arise in the negotiations. City representatives also
met with SDG&E representatives more than 30 times during a multi-year negotiating
process. The City and SDG&E exchanged offers as well as numerous draft ordinances
and agreements during the process, before agreeing to the 2001 MOU and the 2002
Electric Franchise Amendment. Plaintiffs, in turn, offered no evidence in opposing the
City’s motion for summary judgment in the trial court suggesting that such negotiations
were not undertaken in good faith.58
58 (Compare with Zolly v. City of Oakland (2020) 47 Cal.App.5th 73, 90, review
granted Aug. 12, 2020, S262634 [concluding that plaintiffs properly stated a cause of
action sufficient to withstand demurrer where they alleged that franchise fee did not
reflect the value of the franchise in part because the “procurement process was
mishandled and subject to political considerations”].) While Zolly involved whether the
plaintiffs had adequately alleged that a franchise fee was “not reasonably related to the
value received from the government” (id. at p. 89), the summary judgment in this case
was granted based on undisputed evidence demonstrating that the compensation that the
59
Instead, plaintiffs offer several arguments on appeal in support of their contention
that the City failed to establish the existence of “bona fide negotiations,” under Jacks.
First, plaintiffs assert that the negotiations were “primarily about the [3 percent payment
obligation] for the remaining 20 years of the franchise – not the surcharge.” Yet,
plaintiffs cite no evidence establishing that this is so. In fact, the record contains ample
undisputed evidence that the City and SDG&E engaged in extensive negotiations
pertaining to undergrounding that culminated in the Undergrounding Surcharge.
Specifically, the City presented undisputed evidence that: the City’s consultants advised
it with respect to undergrounding; the City requested that SDG&E’s undergrounding
obligation be altered to mandate the spending of funds rather than the allocation of funds;
SDG&E offered to increase spending on undergrounding projects in exchange for a
reduction of its 3 percent payment obligation; and the City participated in PUC
proceedings pertaining to undergrounding that impacted its bargaining position vis-à-vis
the negotiations with SDG&E.
Plaintiffs also assert that “where a utility merely collects a surcharge from its
customers and remits the revenue to a city, the utility has no reason to engage in bona
fide negotiations.” This argument is contrary to both common sense and Jacks. As is
true for any business, a utility plainly has an incentive to minimize the total amount of
City receives from the Undergrounding Surcharge bears a reasonable relationship to the
value of the franchise rights under Jacks.
Zolly was decided after the parties completed their briefing in this case. Plaintiffs
properly alerted us to the decision via a letter filed pursuant to California Rules of Court,
rule 8.254.
60
money that its customers will be required to pay in exchange for its goods and services in
order to maintain the goodwill of its customers. Indeed, the City presented evidence that
SDG&E’s representatives considered the public’s perception of a potential increase in the
surcharge during the negotiations.59 Further, while plaintiffs suggest that Jacks supports
the proposition that a utility has “no incentive to negotiate a lower undergrounding
surcharge because the surcharge is a pass-through charge,” (boldface & italics omitted) in
fact, Jacks supports the opposite proposition. In Jacks, as in this case, the surcharge at
issue was to be paid directly by the utility’s customers (Jacks, supra, 3 Cal.5th at p. 271),
yet the Jacks court stated that a governmental agency, such as the City, could look to
“bona fide negotiations . . . to establish a reasonable value of franchise rights.” (Id. at
p. 270.)
Finally, plaintiffs argue that the “evidence proves the surcharge is not related to
the value of SDG&E’s right to use City streets.” (Boldface & italics omitted.) In support
of this contention, plaintiffs return to their argument that an Undergrounding Surcharge is
not imposed on the gas franchise “despite the nearly identical property interests.”
Plaintiffs also argue that the fact that the franchise fees that SDG&E pays to other
jurisdictions in SDG&E’s service territory is less than the franchise fees that it pays to the
59 Specifically, the City lodged an internal memorandum from SDG&E's
representatives who negotiated the 2002 Electric Franchise Amendment that stated, in
relevant part, “Public perception appears to be that this is a SDG&E rate increase instead
of a surcharge imposed by the City.”
61
City demonstrates that the surcharge is not compensation for the use of the City’s streets.
Neither argument is persuasive.
With respect to the gas franchise, as we concluded above, plaintiffs point to no
evidence that the property interests conveyed in the gas and electric franchises are
comparable. (See pt. III.D.1.c, ante.) With respect to other jurisdictions’ franchise fees,
Jacks makes clear that the market price of utility franchises in charter cities is distinct
from that in general law cities. (See fn. 6, ante.) Plaintiffs failed to demonstrate that the
differences in franchise fees within SDG&E’s service area are not due to such market
differences.
Accordingly, we conclude that plaintiffs have not demonstrated that the trial court
erred in concluding that the compensation that the City receives from the
Undergrounding Surcharge bears a reasonable relationship to the value of the franchise
rights.
IV.
DISPOSITION
The judgment is affirmed. The City is entitled to recover costs on appeal.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
62