Campana v. East Bay Mun. Utility Dist.

Filed 6/15/23 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JAYNIE CAMPANA et al., A163054
Plaintiffs and Appellants,
(Alameda County
v. Super. Ct. No. RG20050136)
EAST BAY MUNICIPAL UTILITY
DISTRICT, ORDER MODIFYING OPINION
AND DENYING REHEARING;
Defendant and Respondent.
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on May 23, 2023, be modified as
follows:
1. On page 4, change the first word in the third paragraph from “Plaintiff’s”
to “Plaintiffs’.”
2. On page 11, change the first word in footnote 8 from “Although” to “While”
and add a comma after the word “ordinances” so that the footnote reads:
While the distinction is immaterial for our purposes, plaintiffs refer to
tiered-rate structures adopted in “ordinances,” although the rate
structures they challenge were enacted in resolutions.
3. On page 16, after the paragraph ending with “adopting the taxes. (Ibid.)”
add the following paragraph, including footnote 10, which will require
renumbering the subsequent footnote:
Plaintiffs’ reliance on Gatto v. County of Sonoma (2002) 98
Cal.App.4th 744 and Schmidt v. Southern Cal. Rapid Transit Dist.
(1993) 14 Cal.App.4th 23 for the general proposition that filing a timely
claim under the Government Claims Act “extends the time for filing
1
suit even when another statute of limitations has lapsed” is misplaced.
Both cases merely hold that the Government Claims Act extends the
limitations period otherwise provided for in Code of Civil Procedure
section 340. (Gatto, supra, at pp. 755, 765; Schmidt, supra, at p. 30.)
The decisions are consistent with Code of Civil Procedure sections 313,
which provides that the “general procedure for presentation of claims
as prerequisite to commencement of actions for money or damages
against government entities is prescribed by the [Government Claims
Act]” and 342, which provides that “[a]n action against a public entity
upon a cause of action for which a claim is required to be presented in
accordance with [the Government Claims Act] must be commenced
within the time provided in Section 945.6 of the Government Code.”10
Code of Civil Procedure section 312 provides, however, that this
framework set forth in title 2 of part 2 of the Code of Civil Procedure,
including the foregoing provisions, does not apply when another statute
provides otherwise: “Civil actions, without exception, can only be
commenced within the periods prescribed in this title, after the cause of
action shall have accrued, unless where, in special cases, a different
limitation is prescribed by statute.” (Code Civ. Proc., § 312, italics
added.) That is because the general statutes of limitations provisions in
title 2 must be read in conjunction with section 312. (People v.
Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1075–1076.) As Public
Utilities Code section 14402, which applies “[n]otwithstanding any
other provision of law,” prescribes a different limitations period, the
provisions of title 2 that would otherwise give way to section 14402’s
specific limitations period.
10 Government Code section 945.6, subdivision (a) provides
in relevant part “any suit brought against a public entity on a
cause of action for which a claim is required to be presented in
accordance with Chapter 1 (commencing with Section 900) and
Chapter 2 (commencing with Section 910) of Part 3 of this
division must be commenced: [¶] (1) If written notice is given in
accordance with Section 913, not later than six months after the
date such notice is personally delivered or deposited in the
mail.(2) If written notice is not given in accordance with Section
913, within two years from the accrual of the cause of action.”
4. On page 17, the concluding paragraph is modified as follows: (a) after the
clause “assuming notice was required” add the words “and timely given”;
(b) on the third line of the paragraph, between the words “did not” and
2
“extend” add the words “operate to”; and (c) delete the parenthetical “(which
had already run by the time any government claim was presented)” so that
the paragraph reads:
Here, assuming notice was required and timely given under the
Government Claims Act, compliance with any time requirements
imposed by that Act did not operate to extend the statute of limitations
applicable to plaintiffs’ action seeking a refund of allegedly illegal fees.
Because the gravamen of the complaint is a challenge to the tiered-rate
structure adopted by EBMUD’s 2017 and 2019 resolutions, the
validation statute’s shorter statute of limitations governs. Thus, we
conclude that the trial court correctly sustained the demurrer.11
There is no change in the judgment.
The petition for rehearing is denied.
June 15, 2023 BROWN, P. J.
3
Trial court: Alameda County Superior Court
Trial judge: Honorable Winifred Smith
Counsel for plaintiffs and appellants: BERDING & WEIL LLP
Fredrick A. Hagen
Paul G. Kerkorian
Counsel for defendant and appellant: Derek McDonald
Felicity Grisham
4
Filed 5/23/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JAYNIE CAMPANA et al.,
Plaintiffs and Appellants,
A163054
v.
EAST BAY MUNICIPAL UTILITY (Alameda County
DISTRICT, Super. Ct. No. RG20050136)
Defendant and Respondent.
Plaintiffs Jaynie Campana and John Evilsizor appeal a judgment
entered in favor of defendant East Bay Municipal Utility District (EBMUD)
on their purported class action complaint alleging that the tiered-rate water
structure used by EBMUD to determine the cost of residential and
commercial water service in Alameda and Contra Costa Counties violates
article XIII D, section 6, subdivision (b) of the California Constitution. They
contend the trial court erred in sustaining without leave to amend EBMUD’s
demurrer to their first amended complaint. We agree with the trial court’s
finding that plaintiffs’ claim is barred by the applicable statute of limitations
and accordingly, we shall affirm the judgment.
Background
Legal Background
“Proposition 218, approved by voters in 1996, is one of a series of voter
initiatives restricting the ability of state and local governments to impose
taxes and fees.” (Plantier v. Ramona Mun. Water Dist. (2019) 7 Cal.5th 372,
1
380.) Among other things, Proposition 218 added article XIII D to the
California Constitution, which imposes “imposes distinct procedural and
substantive limitations” on a local agency’s ability to extend, impose or
increase “property-related fees” for services. (Id. at p. 381.) As relevant here,
article XIII D, section 6, subdivision (b), places the following substantive
limitations on property-related fees: “(1) revenues derived from the fee may
not exceed the cost of providing the property-related service (id., subd. (b)(1));
(2) those revenues may not be used for any purpose other than the one for
which the fee was imposed (id., § 6, subd. (b)(2)); [and] (3) the amount of the
fee ‘shall not exceed the proportional cost of the service attributable to the
parcel’ (id., § 6, subd. (b)(3) . . .).” (Plantier, supra, at p. 382, italics omitted.)1
In City of Palmdale v. Palmdale Water Dist. (2011) 198 Cal.App.4th
926, 936–938, the court held that Proposition 218 requires public water
agencies utilizing a tiered-rate water structure to be able to prove that
charges assessed at the various tiers are proportional to the costs of providing
water service to each parcel. In Capistrano Taxpayers Assn., Inc. v. City of
San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1497, the court agreed
with the court in Palmdale and held that that Proposition 218 requires public
water agencies to calculate the actual costs of providing water at various
levels of usage. The court explained, “While tiered, or inclined rates that go
up progressively in relation to usage are perfectly consonant with . . .
section 6, subdivision (b)(3) . . . , the tiers must still correspond to the actual
cost of providing service at a given level of usage.” (Id. at pp. 1497–1498.)
1All further references to section 6 refer to article XIII D, section 6 of
the California Constitution. For reader convenience, we will occasionally
shorthand the subdivisions to section 6 as “section 6(b)”and “section 6(b)(3).”
2
Plaintiffs’ Complaint
Plaintiffs’ operative, first amended complaint alleges that “EBMUD is a
public agency, municipal corporation, and municipal water and wastewater
utility . . . [that] provides water and wastewater service to the residents of
Alameda County and Contra Costa County” and that plaintiffs reside in
EBMUD’s service area and have paid for and received water service from
EBMUD since before July 2018.
According to the complaint, EBMUD determines the cost of water
service based on the volume of water used. Under “Schedule A,” which
applied to both plaintiffs, there are three tiers of water usage and each
successive tier is charged a higher rate than the previous tier. Primarily,
plaintiffs allege that this tiered water rate structure violates the requirement
of section 6(b)(3) that the amount charged for water service shall not exceed
the proportional cost of the service attributable to the parcel as interpreted in
City of Palmdale v. Palmdale Water Dist., supra, 198 Cal.App.4th 926 and
Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano, supra, 235
Cal.App.4th 1493.2 The complaint explains, “Under EBMUD’s method of
tiered-rate pricing, some parcels are charged proportionally more than other
2 Plaintiffs also allege, based upon the same factual allegations,
violations of sections 6(b)(1) (charges exceed cost to provide services) and
6(b)(2) (revenues used for purpose other than providing service). As the
complaint sets forth no factual allegations specific to the alleged section
6(b)(2) “misuse of funds” claim, and plaintiffs failed to develop any pertinent
arguments in the briefing on appeal (including any explanation for their
position that an “inverse validation” is inapplicable), we find any such claim
has been forfeited. (See, e.g., Sviridov v. City of San Diego (2017) 14
Cal.App.5th 514, 521 [“ ‘ “ ‘When an appellant [asserts a point] but fails to
support it with reasoned argument and citations to authority, we treat the
point as [forfeited].’ ” [Citation.] “We are not bound to develop appellants’
arguments for them.” ’ ” (Fn. omitted.)].)
3
parcels for the use of water. Each parcel is charged at the basic rate for a
certain baseline of water use. If the use exceeds the baseline, the water rate
is increased even though the cost to provide that additional water has not
increased. This results in some parcels paying a higher rate than other
parcels.”
On July 17, 2019, plaintiffs mailed a claim pursuant to the Government
Claims Act (Gov. Code, § 810 et seq.) to EBMUD seeking a refund of water
service charges collected in violation of section 6, subdivision (b) since July
17, 2018. On January 13, 2020, after the statutory time period for response
had lapsed, plaintiffs filed the present action.
In May 2020, EBMUD filed a demurrer to the complaint arguing that
plaintiffs’ complaint was barred by the 120-day statute of limitations found in
Public Utilities Code section 14402, because the complaint seeks to challenge
water rates that were adopted in 2017 and 2019.3 The court agreed and
sustained the demurrer with leave to amend.
Plaintiff’s first amended complaint was filed in January 2021 and
EBMUD again filed a demurrer to the amended complaint on the ground that
the complaint was untimely under Public Utilities Code section 14402. The
court took judicial notice of resolutions showing that in July 2017, EBMUD
adopted the water rates for fiscal years 2018 and 2019 and in July 2019,
EBUMD adopted the water rates for fiscal years 2020 and 2021 and
3 Public Utilities Code section 14402 reads: “A district or any interested
person may bring an action pursuant to Chapter 9 (commencing with Section
860) of Title 10 of Part 2 of the Code of Civil Procedure to determine the
validity of district rates or charges. [¶] Notwithstanding any other provision
of law, any judicial action or proceeding to attack, review, set aside, void, or
annul an ordinance, resolution, or motion fixing or changing rates or charges
for the commodities or service furnished by a district shall be commenced
within 120 days of the effective date of the ordinance, resolution, or motion.”
4
sustained the demurrer without leave to amend. Judgment was entered and
plaintiffs timely filed a notice of appeal.
Discussion
“ ‘This appeal follows the sustaining of a demurrer. The application of
the statute of limitations on undisputed facts is a purely legal question
[citation]; accordingly, we review the lower courts’ rulings de novo. We must
take the allegations of the operative complaint as true and consider whether
the facts alleged establish [plaintiffs’] claim is barred as a matter of law.’
[Citation.] . . . [¶] ‘To determine the statute of limitations which applies to a
cause of action it is necessary to identify the nature of the cause of action, i.e.,
the “gravamen” of the cause of action.’ [Citation.] ‘ “[T]he nature of the right
sued upon and not the form of action nor the relief demanded determines the
applicability of the statute of limitations under our code.” ’ [Citation.] ‘What
is significant for statute of limitations purposes is the primary interest
invaded by defendant’s wrongful conduct.’ ” (Raja Development Co., Inc. v.
Napa Sanitary Dist. (2022) 85 Cal.App.5th 85, 91–92.)
The parties dispute the gravamen of the complaint. Plaintiffs
characterize their complaint seeking “a partial refund of existing water
charges” assessed and collected “in excess of constitutional limits under
section 6(b).” (Italics added.) Plaintiffs dispute that their complaint seeks to
invalidate the water rates adopted by EBMUD and assert that “it was
[EBMUD’s] post-enactment conduct that rendered the otherwise valid
charges non-compliant with §6(b).” Specifically, they argue that EBMUD
violated the constitution by “failing to ensure the periodic charges in higher
tiers do not exceed the proportional cost to each parcel.” Finally, they argue
that a new statute of limitations begins to run every time the
unconstitutional charges are assessed and collected and that they timely
5
presented their claims within one year of the assessment and collection as
required by Government Code section 911.2, subdivision (a).4
EBMUD contends the gravamen of the complaint is a challenge to its
adoption of water rates that plaintiffs assert violate section 6(b). EBMUD
disputes plaintiffs’ interpretation of section 6 as authorizing a challenge to
existing rates each time an assessment is made and collected. It argues that
the trial court correctly rejected plaintiffs’ argument that the word “existing”
in the heading of section 6(b) “permits a claim against an ‘existing’ rate
structure without regard to when it was adopted.” EBMUD asserts that
because plaintiffs’ refund claim necessarily depends upon a finding that its
rate decisions were invalid, the 120-day limitation period under Public
Utilities Code section 14402 applies.
As set forth above, section 6(b) imposes substantive requirements on
“existing, new or increased fees and charges” and directs that “[a] fee or
charge shall not be extended, imposed, or increased by any agency unless it
meets” those substantive requirements. For the purposes of this provision,
“ ‘Extended,’ when applied to an existing tax or fee or charge, means a
decision by an agency to extend the stated effective period for the tax or fee or
charge, including, but not limited to, amendment or removal of a sunset
provision or expiration date.” (Gov. Code, § 53750, subd. (e).) Similarly,
“increased” when applied to a property-related fee “means a decision by an
agency that . . . [¶] . . . [i]ncreases any applicable rate used to calculate the
4 Government Code section 911.2, subdivision (a) reads: “A claim
relating to a cause of action for death or for injury to person or to personal
property or growing crops shall be presented as provided in Article 2
(commencing with Section 915) not later than six months after the accrual of
the cause of action. A claim relating to any other cause of action shall be
presented as provided in Article 2 (commencing with Section 915) not later
than one year after the accrual of the cause of action.”
6
tax, assessment, fee, or charge [or] [¶] . . . [r]evises the methodology by which
the tax, assessment, fee, or charge is calculated, if that revision results in an
increased amount being levied on any person or parcel.” (Gov. Code, § 53750,
subd. (h)(1).) Notably, a fee “is not deemed to be ‘increased’ by an agency
action that . . . [¶] . . . [i]mplements or collects a previously approved tax, fee,
or charge, so long as the rate is not increased beyond the level previously
approved by the agency, and the methodology previously approved by the
agency is not revised so as to result in an increase in the amount being levied
on any person or parcel.” (Gov. Code, § 53750, subd. (h)(2).)5 Accordingly,
5 Although the term “existing” is not defined by statute for purposes of
section 6(b), we interpret it to refer to a fee that existed either at the time the
constitutional amendment became effective, or prior to some other event (e.g.,
the initiation of a legal challenge or extension by the local agency).
As discussed post at pages 9–10, similar language in section 6,
subdivision (d) has been interpreted to mean fees in effect at the time the
constitutional amendment became effective. (Howard Jarvis Taxpayers Assn.
v. City of Fresno (2005) 127 Cal.App.4th 914, 924; see also Apartment Assn. of
Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal. 4th 830, 843–
844 [exemptions for existing development fees and all charges to provide gas
and electrical service, located in article XIII D, section 1 of the California
Constitution, “refers only to those existing at the time of article XIII D’s
enactment.”].)
Section 6(b) is self-described as setting forth “requirements for existing,
new or increased fees and charges,” suggesting that “existing” fees are
distinct from those which are entirely new or have been increased.
Either of these interpretations is preferable to plaintiffs’ interpretation
(that an existing fee may be challenged at any time), which would vitiate the
validation statute’s limitations period, entirely. (Flannery v. Prentice (2001)
26 Cal.4th 572, 578 [when interpreting a statute, courts “avoid any
construction that would produce absurd consequences”]; People v. Torres
(2020) 48 Cal.App.5th 550, 557 [Statutes should be interpreted “in a manner
that ‘comports most closely with the apparent intent of the Legislature, to
promote rather than defeat the statute’s general purpose and to avoid an
interpretation that would lead to absurd and unintended consequences.
7
each time an agency extends or increases an existing fee it must ensure the
requirements of section 6(b) are met.
“[A]ny judicial action or proceeding to attack, review, set aside, void, or
annul an ordinance, resolution or motion” fixing or changing rates or charges
(such as a resolution setting EBMUD’s water rates) is subject to the 120-day
statute of limitations in Public Utilities Code section 14402. This limitations
period runs from “the effective date of the ordinance, resolution, or motion”
being challenged. A cause of action asserting that the implementation of a
resolution is unlawful accrues, and the limitations period begins to run, on
the effective date of the resolution, even if the allegedly invalid charge or
assessment is imposed much later. (See Regents of University of California v.
City & County of San Francisco (2004) 115 Cal.App.4th 1109, 1115 [“Case
law is clear that the enactment of a utility rate or rate increase, and not a
subsequent act which actually imposes a utility charge, triggers the 120-day
statute of limitations.”]; Utility Cost Management v. East Bay Mun. Utility
Dist. (2000) 79 Cal.App.4th 1242, 1252.) There can be no dispute that the
time to challenge EBMUD’s adoption of water rates in 2017 and 2019 has
long since passed.
Plaintiffs cannot avoid the applicable statute of limitations by
characterizing their claim as merely seeking a refund of the excess fees that
were paid. The operative complaint itself frames plaintiffs’ claims as an
attack on the resolution’s “tiered-rate pricing” or “disproportionate rate
structure,” alleging that it is the constitutional infirmities of this structure
that give rise to their partial refund claims. The claim for declaratory relief
[Citation.] We must not construe a statute in a manner that renders its
provisions essentially nugatory or ineffective, particularly when that
interpretation would frustrate the underlying legislative purpose.’ ”].)
8
is premised upon charges imposed “under an unconstitutional structure or
method,” including an “above-cost pricing scheme” that “all but assures the
revenues” defendants receive are higher than those required to cover their
costs of service.6 It strains credulity to argue that these allegations do not
seek to “attack, review, set aside, void, or annul” the subject resolutions.
(Pub. Util. Code, § 14402.)
Even without these overt challenges to the validity of the resolutions,
the inevitable effect of plaintiffs’ allegations (if true) would be to invalidate
them. This is precisely what plaintiffs’ complaint seeks, “to address the
constitutional violation through declaratory relief establishing that the
continued imposition of water fees under the water-rate structure currently
in effect is in violation of Proposition 218; [and] injunctive relief and a writ of
mandate prohibiting EBMUD from continuing to use the constitutionally
defective water-rate structure, requiring the EBMUD to modify its rates to
conform to the requirements of Proposition 218. . . .” (Italics added.)
In Utility Cost Management v. East Bay Mun. Utility Dist., supra, 79
Cal.App.4th at pages 1245 and 1247, plaintiff filed a complaint seeking a
refund of certain water and wastewater fees charged by the utility district
that plaintiff alleged violated a provision of the Government Code. The court
held that plaintiff’s complaint was barred by the 120-day statute of
limitations set forth in Government Code section 66022 because the
resolution setting the water and wastewater rates was adopted on June 10,
6 Similarly, for class certification purposes, plaintiffs allege their claims
are “typical” of the putative class because “defendants’ disproportionate
pricing scheme” that EBMUD adopted by resolution caused them to incur
allegedly unconstitutional charges. In other words, every claimed overcharge
derives from, and only from, the resolution’s alleged noncompliance with
section 6(b) and rests solely upon a finding that it is invalid.
9
1997, more than 120 days before the filing of the complaint in October 1997.7
(Id. at pp. 1245–1246.) The court rejected the plaintiff’s argument that it was
“not seek[ing] to invalidate any of EBMUD’s rate decisions” but was “simply
seeking a refund of the excess fees that were paid.” (Id. at p. 1250.) The court
emphasized that a “ ‘[p]laintiff cannot transform the action into one which
does not challenge the validity of the ordinance, regulations, and
administrative actions by acquiescing in the taking, assuming the validity of
those actions, and seeking only damages.’ ” (Id. at p. 1251 [rejecting “the
plaintiff’s attempt to recharacterize the nature of his claim to avoid the
statute of limitations bar”], quoting Hensler v. City of Glendale (1994) 8
Cal.4th 1.) Ultimately, the court concluded, “While it may be true that
[plaintiff’s] complaint does not expressly challenge the validity of the rate
decisions that were adopted by EBMUD, its claim for damages necessarily
depends upon a finding that those rate decisions were invalid.” (Id. at
p. 1251; see also Coachella Valley Water Dist. v. Superior Court (2021) 61
Cal.App.5th 755, 770 (Coachella) [complaint which seeks a refund of charges
collected in violation of section 6(b) is “undeniably aimed at the validity of the
tax and the water district’s ability to impose it” and therefore subject to the
7 Government Code section 66022, subdivision (a) provides in relevant
part: “Any judicial action or proceeding to attack, review, set aside, void, or
annul an ordinance, resolution, or motion adopting a new fee or service
charge, or modifying or amending an existing fee or service charge, adopted
by a local agency, as defined in Section 66000, shall be commenced within
120 days of the effective date of the ordinance, resolution, or motion.” The
utility district moved for summary judgment on the ground that the action
was barred by both Government Code section 66022 and Public Utilities Code
section 14402 but the court, finding that the Government Code provision
applied, did not address the Public Utilities Code section. (Utility Cost
Management v. East Bay Mun. Utility Dist., supra, 79 Cal.App.4th at
p. 1246.)
10
statute of limitations found in the applicable validation statute]; Golden Gate
Hill Development Co., Inc. v. County of Alameda (2015) 242 Cal.App.4th 760,
768 [shortened statute of limitation applied to refund claim because, while
not a reverse validation action, it was “based on the alleged illegality of the
tax scheme enacted by the Measures”].) As in these cases, plaintiffs’ “partial
refund claim” is based on the alleged illegality of the tiered-rate fee structure
previously adopted by EBMUD.
Plaintiffs’ argument that success on their “partial refund claim” would
not “inevitably result in invalidation of prior rate ordinances” is nonsensical.8
They suggest that to the contrary, “the most elegant remedy would be for the
trial court to order the refunds, as prayed for in complaint, on behalf of the
rate payers who paid the higher rates, without invaliding the prior
ordinances.” However elegant, as we have explained, the proposal requires a
finding that defendant’s rates violate section 6(b) and effectively invalidates
the subject resolutions. As there has been no such finding here (let alone a
judgment, settlement, and establishment of a refund program), Daneshmand
v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923, cited by plaintiffs,
is inapposite.9
8 Although the distinction is immaterial for our purposes, plaintiffs
refer to tiered-rate structures adopted in “ordinances” although the rate
structures they challenge were enacted in resolutions.
9 In Daneshmand, individuals sued for alleged overcharges between
August 28, 2013 and June 30, 2014 (the disputed rate period) that they
contended were excessive. (Daneshmand v. City of San Juan Capistrano,
supra, 60 Cal.App.5th at p. 928.) However, the Daneshmand plaintiffs
themselves had not sought or obtained any court ruling regarding the
constitutionality of the tiered-rate charges at issue; that had been established
in a prior case, filed by different plaintiff. (Id. at p. 928 & fn.1.)
Defendant had responded by enacting a new rate schedule and
approving a refund program, in which any participating customer would be
11
Plaintiffs’ remaining arguments fare no better. Contrary to plaintiffs’
argument, section 6, subdivision (d) does not authorize a new challenge,
subject to a new statute of limitations, with the assessment and collection of
fees each month. The subdivision provides, “Beginning July 1, 1997, all fees
or charges shall comply with this section.” This provision merely required
that all fees, existing at the time Proposition 218 was approved, be brought
into line with the substantive requirements of section 6(b). The three-year
statute of limitations under Code of Civil Procedure section 338, subdivision
(a), for an action “upon a liability created by statute,” has long since lapsed.
(Cf. Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 772.) And, as
noted, Daneshmand did not have occasion to address when an inverse
validation claim accrues, only follow-on claims for other relief with different
statutes of limitations. (See fn. 9, ante.)
Howard Jarvis Taxpayers Assn. v. City of Fresno, supra, 127
Cal.App.4th 914 did not, as plaintiffs suggest, hold otherwise. In that case,
the plaintiff challenged, as violative of section 6, a fee charged by the city “in
lieu of property taxes” to recover its costs of providing water, sewer and solid
waste collection services. (Id. at p. 919.) The court rejected the city’s
argument that “for Proposition 218 to apply to an existing fee, a
governmental agency must take formal action to extend the fee.” (Id. at
pp. 923–924.) The court acknowledged that under section 6(b), “a city or
refunded those amounts paid above tier-1 rates during the disputed rate
period, in exchange for a release of liability. (Ibid.) The Daneshmand
plaintiffs merely challenged the validity of the release and the sufficiency of
refund amounts for the disputed rate period, asserting claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, money
had and received, and negligence. (Id. at p. 929.) That court’s construction
and application of the statute of limitations applicable to the latter two
claims is inapposite, here.
12
agency that acts to extend, impose, or increase a fee after the effective date of
Proposition 218 must comply with the requirements of subdivision (b)(1)
through (5),” but noted that “section 6, subdivision (d) clearly requires, in
addition, that cities and other agencies conform existing fees to the
requirements of subdivision (b)(1) through (5) by the stated date of July 1,
1997.” (Id. at p. 924.) Because the plaintiff in that case was challenging an
existing fee that had not been brought into conformity with the new
requirements, the challenge was authorized under section 6, subdivision (d).
The statute of limitations, however, was not raised and the court did not
address the timeliness of any such challenge. (See Rosen v. State Farm
General Ins. Co. (2003) 30 Cal.4th 1070, 1076 [“ ‘It is a well-established rule
that an opinion is only authority for those issues actually considered or
decided.’ ”].)
Relying on Howard Jarvis Taxpayers Assn. v. City of La Habra (2001)
25 Cal.4th 809 (City of La Habra), plaintiffs contend that the statute of
limitations runs anew when, each month, EBMUD collects the allegedly
illegal tax. In City of La Habra at pages 814–815, the plaintiffs alleged an
ongoing violation of a statutory requirement that the city submit a utility tax
to the voters for approval. There was no dispute that the tax was a general
tax and that it had not been enacted as existing law required. The court held
that “where the three-year limitations period for actions on a liability created
by statute (Code Civ. Proc., § 338, subd. (a)) applies, and no other statute or
constitutional rule provides differently, the validity of a tax measure may be
challenged within the statutory period after any collection of the tax,
regardless of whether more than three years have passed since the tax
measure was adopted.” (Id. at p. 825.) We agree with our colleagues in the
Fourth Appellate District that City of La Habra has no application to an
13
action, like this one, to determine the validity of a water district’s resolution
adopting service fees. (Coachella, supra, 61 Cal.App.5th at p. 774.)
First, the court in City of La Habra expressly limited its holding,
stating, “We are not concerned in this case with bond issues or other
governmental actions that, by state law, are made subject to the accelerated
validation procedures of Code of Civil Procedure sections 860–870.5.” (City of
La Habra, supra, 25 Cal.4th at p. 825.) EBMUD’s adoption of water rates by
resolution, however, is this very type of law, and subject to the validation
statutes. Similarly, while the statutes at issue in City of La Habra imposed
an ongoing obligation on the city not to collect a tax enacted without voter
approval (id. at pp. 823–824), plaintiffs have not identified any similar,
ongoing statutory obligation a utility district must fulfill after adoption of a
resolution setting its service rates. As the court noted in Coachella, supra, 61
Cal.App.5th at page 774, water district rates are “ ‘subject to attack’ ” when
enacted, “ ‘even if they are essentially the same as previous ones for which the
statute of limitations has expired.’ ” (Quoting San Diego County Water
Authority v. Metropolitan Water Dist. of Southern California (2017) 12
Cal.App.5th 1124, 1142.) Further, unlike in City of La Habra, there is no
concern that applying a 120-day statute of limitations to this action would
allow EBMUD to “continue indefinitely to collect unauthorized taxes.” (City of
La Habra, at p. 825.) The water district cannot, as plaintiffs suggest, “violate
the constitution with impunity.” Although the claims in the complaint are
time-barred, plaintiffs may challenge subsequent resolutions adopting the
tiered-rate water structure by bringing a validation action within 120 days of
the applicable resolution. (Coachella, supra, at p. 774.) As the trial court
noted here, “EBMUD regularly reviews and then extends, imposes, or
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increases its rates. Plaintiff may file a new[]lawsuit after EBMUD makes a
decision to extend, impose, or increase its rates.”
Finally, plaintiffs’ reliance on Plata v. City of San Jose (2022) 74
Cal.App.5th 736 is misplaced. In that case, the court held that a plaintiff
seeking a refund of water service fees collected in violation of section 6(b)
must file a claim with the city under the Government Claims Act prior to
filing a lawsuit. (Id. at p. 748, fn. 5.) Because the court concluded that the
notice plaintiffs had filed with the city was insufficient to present their
section 6(b) claim, it did not reach any issues regarding the statute of
limitations. Other courts, however, have addressed this issue in similar
contexts and consistently concluded that the validation act’s statute of
limitations applies.
In Coachella, supra, 61 Cal.App.5th at page 771, plaintiff argued that
even if his validation claims were time-barred, his taxpayer claim under Code
of Civil Procedure section 526a seeking to enjoin the district from spending
the unlawfully charged fees was timely. The court acknowledged plaintiff’s
“hybrid or ‘dual nature’ lawsuit containing both a reverse validation and a
taxpayer claim,” but noted the long-settled rule that “ ‘[a] validation action
under Code of Civil Procedure sections 860 et seq., and a taxpayer’s action
under Code of Civil Procedure section 526a . . . may be brought [together] . . .
if suit is filed within the 60-day period prescribed for the validation action.’ ”
(Coachella, supra, at p. 771.) The shortened statute of limitations applies in
such cases because the gravamen of the action is a challenge to the validity of
the tax. (Ibid.)
Similarly, in Golden Gate Hill Development Co. v. County of Alameda,
supra, 242 Cal.App.4th at pages 770–771, plaintiff argued that the shortened
statute of limitations applicable to validation actions was not applicable to its
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claim under Revenue and Taxation Code section 5096, subdivisions (b) and
(c), which provide for the refund of taxes “[e]rroneously or illegally collected”
or “[i]llegally assessed or levied.” The court rejected this argument,
explaining that even if the refund claim was timely under the Revenue and
Taxation Code, the claim lacked any legal basis, because the taxes at issue
were long ago deemed valid by operation of the validation statutes—thus not
illegally levied and collected. (Id. at p. 771.) The court noted that while the
statute of limitations found in the Revenue and Taxation Code applied to
claims for refunds not based on the validity of the taxes themselves, it did not
extend the time for presenting a refund claim which challenged the validity of
the measure adopting the taxes. (Ibid.)
Here, assuming notice was required under the Government Claims Act,
any time requirements imposed by that Act did not extend the statute of
limitations applicable to plaintiffs’ action seeking a refund of allegedly illegal
fees. Because the gravamen of the complaint is a challenge to the tiered-rate
structure adopted by EBMUD’s 2017 and 2019 resolutions, the validation
statute’s shorter statute of limitations (which had already run by the time
any government claim was presented) governs. Thus, we conclude that the
trial court correctly sustained the demurrer.10
Disposition
The judgment is affirmed.
Plaintiffs do not contend the court erred by denying them leave to
10
amend. Nor do they offer any basis on which the defect in the complaint
might be cured by amendment.
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WHITMAN, J.*
WE CONCUR:
BROWN, P. J.
STREETER, J.
*Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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Trial court: Alameda County Superior Court
Trial judge: Honorable Winifred Smith
Counsel for plaintiffs and appellants: BERDING & WEIL LLP
Fredrick A. Hagen
Paul G. Kerkorian
Counsel for defendant and appellant: Derek McDonald
Felicity Grisham
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