The opinion
Filed 10/2/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PATRICK OWENS et al., B242291
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC419572)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
LARRY PITTS, B242393
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC334027)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEALS from a judgment and an order of the Superior Court of Los Angeles
County, John Shepard Wiley, Jr., Judge. Affirmed.
Law Offices of Steven F. Carvel and Steven F. Carvel for Plaintiffs and
Appellants Patrick Owens and Patricia Munoz.
Huskinson, Brown & Heidenreich, Paul E. Heidenreich and David W.T. Brown
for Plaintiff and Appellant Larry Pitts
Jones Day, Elwood Lui, Brian D. Hershman and Erica L. Reilley for Defendant
and Respondent.
_____________________
INTRODUCTION
In this opinion we adjudicate two appeals challenging a user utility tax (UUT)
enacted pursuant to a measure approved by the voters. The appellants contend the UUT
is unlawful because it violated the voters‘ due process and free speech rights and because
the tax was imposed in violation of Proposition 218 and the Elections Code. We publish
this case to address these important substantive legal issues and to provide an example of
when the doctrine of judicial estoppel should apply.
The present appeals arise from two separate superior court class actions against
defendant and respondent County of Los Angeles (County); the first by plaintiff and
appellant Larry Pitts and the second by plaintiffs and appellants Patrick Owens and
Patricia Munoz. Pitts appeals an order denying his motion to enforce a settlement and
Owens and Munoz appeal a judgment. We affirm the order and the judgment.
In both appeals appellant(s) challenge the legality of the County‘s UUT enacted
pursuant to a measure approved by the voters on November 4, 2008 (Measure U). We
reject all of the appellants‘ arguments on the merits.
We also conclude that Pitts is judicially estopped and barred by the terms of a
settlement agreement he executed from pursuing his challenge to the UUT. As we shall
explain, the litigation conduct of Pitts and his counsel is precisely the kind of conduct the
doctrine of judicial estoppel is meant to prohibit.
BACKGROUND
1. The Oronoz/Pitts Class Action—The Challenge to the 1991 UUT
In January 1991, the County enacted the Utility User Tax Ordinance (L.A. County
Code, § 462.010 et seq.), establishing a utility user tax (the 1991 UUT). The 1991 UUT
imposed a 5 percent tax on telephone, electricity and gas usage.
In May 2005, Joe Oronoz and Larry Pitts filed a class action suit on behalf of
taxpayers in the unincorporated parts of the County (the Oronoz/Pitts class action)
2
challenging the 1991 UUT on the grounds that it violated Propositions 13 and 621
because it was enacted without voter approval.2 (County of Los Angeles v. Superior
Court (2008) 159 Cal.App.4th 353, 357.) The County denies that the 1991 UUT was
unlawful. On January 4, 2007, the trial court certified as a class all persons who paid the
1991 UUT since February 16, 2004.
2. Short Form Settlement Agreement
At a mediation on June 30, 2008, the parties in the Oronoz/Pitts class action
executed a two-page short form settlement agreement. The agreement provided that the
County would place $10 million in a general fund to be used to address education,
medical needs, homelessness and/or police and fire protection in the unincorporated areas
of the County. It also stated that the County would place $65 million in a claims fund to
be used for taxpayer refunds.
The short form settlement agreement also stated: ―County to hold an election in
November 2008 to validate the UUT pursuant to applicable law at a rate of 4.5%. County
agrees not to seek to raise the UUT rate for a period of 15 years following the election.‖
Additionally, the agreement provided that if the UUT was not approved by the voters, the
amount of money collected by the County from July 1, 2008 to the date of election would
be added to the claims fund. Appellants contend that the amount of UUT the County was
likely to generate during this time period was $25 million.
1
Proposition 13, approved by California voters in 1978, was codified in article XIII
A to the California Constitution. Proposition 62, approved by California voters in 1986,
added section 53720 et seq. to the Government Code.
2
Craig Kaufman and Cheryl Kaufman were added as named plaintiffs in the first
amended complaint filed in the Oronoz/Pitts class action. Oronoz, Pitts and the
Kaufmans shall sometimes collectively be referred to as the ―Oronoz/Pitts plaintiffs.‖
At some point, Joe Oronoz apparently ceased serving as a class representative.
3
The agreement further provided that the settlement was contingent upon approval
by the County Board of Supervisors (Board) and that retired judge Dickran Tevrizian
retained ―jurisdiction to mediate any disputes in the drafting of the settlement
agreement.‖ The agreement also stated that notice to class members of the settlement
―shall not be sent until after the election is held in November, 2008.‖ Class counsel was
required by the agreement ―to cooperate with the County in seeking voter approval of the
UUT.‖
On July 1, 2008, the Board approved of the settlement in the Oronoz/Pitts class
action in a closed session. The Board resolved that ―[t]he substance of the settlement will
be disclosed upon inquiry by any person as soon as the settlement becomes final
following approval by all parties.‖
3. The Ballot Materials Related to Measure U
In the official ballot sent to voters in unincorporated areas of the County, Measure
U stated: ―THE UNINCORPORATED LOS ANGELES COUNTY UTILITY
USERS’ TAX CONTINUATION MEASURE. Shall an ordinance be adopted to
validate and reduce Los Angeles County‘s existing utility users tax from 5 percent to 4.5
percent; to continue funding essential services, including sheriff‘s deputies, parks,
libraries, street repairs, and other general fund services; update definitions to require
equal treatment of taxpayers regardless of technology used; provide public review of
expenditures and independent audits, and continue the low-income senior exemption?‖
The official ballot also included an impartial analysis by County Counsel,
arguments in favor and against Measure U, and a redlined version of the Utility Users
Tax Ordinance, which set forth the exact language of the proposed ordinance and the
changes made to the previous ordinance. We shall discuss the ballot materials in greater
detail in our discussion of the merits of appellants‘ challenge of the legality of
Measure U.
4
4. The Election
Prior to the election, the County provided the ballot materials discussed ante to the
voters. Larry Pitts received these materials. On November 4, 2008, 62.92 percent of the
voters approved Measure U. We shall refer to the UUT enacted pursuant to Measure U
as the ―2008 UUT.‖
5. Long Form Settlement Agreement
On November 5, 2008, after lengthy negotiations, the Oronoz/Pitts plaintiffs
executed an 18-page long form settlement agreement.3 This agreement incorporated most
of the principal terms of the short form settlement agreement. Under the long form
settlement agreement, the County was required to pay $10 million to a general fund and
$65 million to a claims fund. The agreement also stated the County would not increase
the UUT rate above 4.5 percent at any time prior to November 4, 2023 and that the
County would hold an election in November 2008 to ―validate‖ the UUT at a rate of 4.5
percent.
The long form settlement agreement further provided that plaintiffs Joe Oronoz
and Larry Pitts and all class members released the County of all claims. We shall discuss
this release in more detail post.
The agreement also stated that the County denied any wrongdoing or liability in
connection with the 1991 UUT. Additionally, the agreement provided that if the superior
court did not approve the settlement, the agreement would be null and void.
6. Joint Motion for Preliminary Approval of Settlement and Motion for
Preliminary Approval of Attorney Fees
On November 6, 2008—two days after the election—the Oronoz/Pitts plaintiffs
and the County filed a joint motion for preliminary approval of the settlement and
3
Although the record does not clearly indicate whether the Oronoz/Pitts plaintiffs
themselves executed the document, it is undisputed that their attorney, with their
authority, did so. The Oronoz/Pitts plaintiffs are thus bound by the long form settlement
agreement. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 [client is bound by
acts of attorney within the scope of his express or implied authority].)
5
approval of forms and methods of notifying the certified class of the settlement
(preliminary settlement approval motion). In this motion, the parties argued that the
settlement provided non-monetary benefits, including requiring the County ―to hold an
election to validate the UUT pursuant to applicable law.‖ The motion emphasized that
the settlement was fair because it secured for the taxpayers the ―right to vote‖ for the
UUT, i.e., the ―right to decide whether the County can assess the UUT.‖
In his declaration in support of the preliminary settlement approval motion, lead
class counsel Paul Heidenreich stated that the non-monetary benefits of the settlement,
including the November 4, 2008, election, ―were important to the settlement obtained for
the class.‖ Heidenreich further stated: ―Without the inclusion in the settlement package
of the non-monetary benefits, the proposed settlement was not acceptable to class
counsel.‖
Concurrently with the preliminary settlement approval motion, the Oronoz/Pitts
plaintiffs filed a motion for preliminary approval of attorney fees, costs and payments to
representative plaintiffs. In this motion, the Oronoz/Pitts plaintiffs sought an award of
$50,000 to each class representative and an award of attorney fees in the amount of
$25 million to class counsel. They argued that their counsel deserved to be paid $25
million because they secured many benefits for the class, including the ―Constitutional
right to vote.‖ (Italics and boldface omitted.)
Indeed, in listing the six primary benefits secured by the settlement, the
Oronoz/Pitts plaintiffs placed the election held on November 4, 2008, at the top of the
list. The motion stated: ―The benefits are: [¶] First, the settlement vindicated the
taxpayers[‘] California Constitution, Article XIII right to vote and participate in the tax
enactment process. Value of the Constitutional right: Priceless.‖ (Fn. omitted.)
On November 20, 2008, the trial court entered an order granting preliminary
approval of the settlement and authorizing notice to be provided to the class. Pursuant to
this order, over 390,000 taxpayers were given notice of the settlement and a right to
object. Only one taxpayer filed an objection.
6
On December 1, 2008, the trial court granted the Oronoz/Pitts plaintiffs‘ motion
for preliminary approval of attorney fees and costs, and awarded plaintiffs‘ counsel
$7,637,868.75 in attorney fees. The order further provided that the attorney fees ―shall be
paid from the settlement funds if and when final approval of the class settlement is
granted.‖
7. Final Judgment and Order in the Oronoz/Pitts Class Action
Both the County and the Oronoz/Pitts plaintiffs filed briefs in support of the trial
court‘s final approval of the settlement. In one of their briefs, the Oronoz/Pitts plaintiffs
acknowledged that the sole objector to the settlement argued that Measure U was
―confusing.‖
On April 28, 2009, the superior court entered a final order and judgment
(judgment) in the Oronoz/Pitts class action. The judgment approved the settlement
agreement, stating that it was ―fair, adequate, and reasonable.‖ It also dismissed the
action, awarded class counsel $7,637,868.75 in attorney fees, and awarded each class
representative, including Larry Pitts, $10,000.
8. The Owens Class Action—The Challenge to the 2008 UUT
On August 11, 2009, Patrick Owens and Patricia Munoz filed a class action
complaint against the County challenging the legality of Measure U and the 2008 UUT
(the Owens class action). The complaint alleged that Measure U violated, inter alia, the
class members‘ due process and free speech rights, as well as Proposition 218.
9. County’s Motion for Summary Judgment in the Owens Class Action
On November 12, 2010, the County filed a motion for summary judgment in the
Owens class action on the grounds that plaintiffs failed to timely file and serve verified
election contest statements as required by the Elections Code. The trial court entered an
order denying the motion on February 15, 2011.
7
The order stated that the court had read three cases cited by plaintiffs‘ counsel4
during oral argument and ―finds that they recognize a post-election constitutional
challenge to ballot materials that is independent of the Election[s] Code‘s election contest
procedure.‖ ―As a result,‖ the order further stated, ―summary judgment must be denied
because the complaint alleges constitutional claims related to the ballet materials and
because County, in the moving papers, neither discusses the constitutional claims nor
shows that they do not clear the constitutional bar.‖ (Fns. omitted.)
Subsequently, the superior court set a briefing schedule for resolution of plaintiffs‘
constitution-based challenge to Measure U. Pursuant to that schedule the parties filed
briefs on plaintiffs‘ claims that Measure U violated the voters‘ due process rights.
10. Pitts’s Motion to Enforce the Settlement in the Oronoz/Pitts Class Action
In the meantime, on March 22, 2011, Larry Pitts filed a motion to enforce the
settlement in the Oronoz/Pitts class action. Pitts made the motion pursuant to Code of
Civil Procedure section 664.6 on the grounds that the November 4, 2008, election was
not held ―pursuant to applicable law,‖ as required by the judgment and settlement
agreement.5 Pitts raised many of the same constitutional arguments Owens and Munoz
raised in the Owens class action.
4
These cases were Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766
(Horwath), People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914 (Kerr),
and McKinney v. Superior Court (2004) 124 Cal.App.4th 951.
5
Code of Civil Procedure section 664.6 provides: ―If parties to pending litigation
stipulate, in a writing signed by the parties outside the presence of the court orally before
the court, for settlement of the case, or part thereof, the court, upon motion, may enter
judgment pursuant to the terms of the settlement. If requested by the parties, the court
may retain jurisdiction over the parties to enforce the settlement until performance in full
of the terms of the settlement.‖
8
11. The April 26, 2012, Hearing and Order
On April 26, 2012, the superior court held a hearing on (1) plaintiffs‘ motion in
the Owens class action to invalidate Measure U and (2) Pitts‘s motion in the Oronoz/Pitts
class action to enforce the settlement. After the hearing, the court entered an order
denying both motions.
In the order, the court rejected the plaintiffs‘ arguments on the merits. The court
also found that Pitts waived his claims by signing the settlement agreement and was
judicially estopped from challenging the election because he was taking a position
contrary to the position he took in support of the settlement.
12. Judgment in the Owens Class Action
On May 10, 2012, the superior court entered a final judgment in the Owens class
action in favor of the County. Owens and Munoz filed a timely notice of appeal of the
judgment. On the same day, Pitts filed a timely notice of appeal of the order denying his
motion to enforce the settlement.
CONTENTIONS
Appellants contend that the ballot materials for Measure U were so profoundly
deceptive that they violated the voters‘ due process rights. They also argue that Measure
U violated Proposition 218 and the voters‘ free speech rights under the California
Constitution. Additionally, Pitts contends that the November 4, 2008, election violated
the requirements of the Elections Code. As a result of these alleged constitutional and
statutory violations, Pitts argues, the election violates the judgment and the settlement in
the Oronoz/Pitts class action because it was not conducted pursuant to applicable law.
The County argues that Measure U did not violate the voters‘ due process or free
speech rights, Proposition 218 or the Elections Code. Additionally, the County contends
Pitts is barred by the doctrines of waiver and judicial estoppel from challenging
Measure U.
9
DISCUSSION
1. Pitts is Barred by the Long Form Settlement Agreement from Challenging
the 2008 UUT
―Waiver is the intentional relinquishment of a known right.‖ (Branson v. Sharp
Healthcare, Inc. (2011) 193 Cal.App.4th 1467, 1478.) The trial court found that Pitts
waived his right to challenge the 2008 UUT adopted by Measure U by executing the long
form settlement agreement one day after the election. We agree that Pitts is barred by the
long form settlement agreement from challenging the 2008 UUT.
A trial court‘s determination of waiver is generally a question of fact. (St. Agnes
Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) We must
affirm a waiver finding if it is supported by substantial evidence. (Ibid.) ― ‗When,
however, the facts are undisputed and only one inference may reasonably be drawn, the
issue is one of law and the reviewing court is not bound by the trial court‘s ruling.‘ ‖
(Ibid.) Likewise, we independently interpret contracts, if the interpretation does not turn
on the credibility of extrinsic evidence. (Windsor Pacific LLC v. Samwood Co., Inc.
(2013) 213 Cal.App.4th 263, 273.)
―A settlement agreement is simply a contract.‖ (Hernandez v. Board of Education
(2004) 126 Cal.App.4th 1161, 1176 (Hernandez).) ―A contract must be so interpreted as
to give effect to the mutual intention of the parties as it existed at the time of contracting,
so far as the same is ascertainable and lawful.‖ (Civ. Code, § 1636.) When interpreting a
written contract, we generally ascertain the intention of the parties from the writing alone,
if possible. (Civ. Code, § 1639.) A contract, however, ―may be explained by reference to
the circumstances under which it was made, and the matter to which it relates.‖ (Civ.
Code, § 1647.)
Under the long form settlement agreement, Pitts ―forever discharged‖ the County
―from any and all Released Claims.‖ ―Released Claims‖ was defined by the agreement
as including ―any and all claims . . . and causes of action of every nature and description
whatsoever, ascertained or unascertainied, suspected or unsuspected . . . of the Plaintiffs
10
and all Class Members that were or could have been brought against the County . . . in
the Complaint, from the beginning of the Class Period [February 16, 2004] to November
4, 2008, arising from the facts alleged in the Complaint, including but not limited to
charging, billing, or collection activity related to the UUT . . . based on the alleged failure
to seek voter approval of the UUT and equal protection allegations raised in the
Complaint.‖ (Italics added.)
The trial court found that when Pitts signed the long term settlement agreement on
November 5, 2008, ―the events about which Pitts now complains had all occurred.‖ The
court continued: ―These events were public. They were well known to Pitts and his
counsel. Indeed, Pitts and his fellow plaintiffs had caused this November 4, 2008
election to occur by means of this very lawsuit. The County had sent the ballot booklet to
the Pitts household. . . . This all happened before Pitts signed his November 5, 2008
settlement.‖ There was substantial evidence to support these factual findings, and Pitts
does not dispute them on appeal.
In light of these undisputed facts, we conclude that prior to executing the long
form settlement agreement, Pitts ―could have brought‖ against the County the very same
substantive claims he now asserts. Accordingly, Pitts is barred by the long form
settlement agreement from pursuing his current challenge to Measure U and the
2008 UUT.
Although Pitts attempts to draw a sharp distinction between the 1991 UUT and the
2008 UUT approved in the election, the long form settlement agreement stated that the
purpose of the election was to ―validate‖ the UUT. Moreover, Pitt‘s current substantive
claims arise from the same basic grievance he asserted in his pleadings, namely that the
UUT is unlawful because it was not approved by the voters. He contends that the 1991
UUT was unlawful because there was no election at all, while the 2008 UUT is unlawful
because the election violated certain constitutional and statutory requirements.
11
When the long form settlement agreement is read in its entirety and placed into
context, it is clear that the County agreed to make tens of millions of dollars in payments
and to hold an election to validate the 1991 UUT, as modified, in order to resolve all
claims regarding the alleged unlawful nature of the tax. It is also clear that Pitts and the
other Oronoz/Pitts plaintiffs understood that the settlement resolved all of their potential
claims against the County. On the first page of the long form settlement agreement, for
example, it states that plaintiffs and their lawyers believe it is in the best interests of all
class members ―to resolve finally and completely the potential claims of the Plaintiffs and
the Class Members against the County at this time by this Settlement.‖ (Italics added.)
In other words, the County settled the case to buy peace. It is unimaginable that the
County would have executed the long form settlement agreement on the day of the
election, as it did, if it knew that Pitts could challenge the 2008 UUT based on facts that
already existed at the time.
Pitts argues that because the long form settlement agreement requires the County
hold an election ―pursuant to applicable law,‖ he did not release the County from
unlawful elections practices. This claim rings hollow because he knew, or should have
known, all of the alleged deficiencies in the election at the time he signed the agreement.
Pitts argues that he is not barred from challenging Measure U because he signed
the long form settlement agreement on behalf of the 1991 UUT taxpayers, not on behalf
of the 2008 UUT taxpayers. This argument proves too much. We agree that Pitts
executed the agreement on behalf of the 1991 UUT taxpayers and that the 2008 UUT
taxpayers are not parties to the contract.6 Pitts, however, seeks to enforce the long form
settlement agreement pursuant to Code of Civil Procedure section 664.6, which ―grants
the parties a streamlined procedure to enforce an agreement they made between
themselves.‖ (Hernandez, supra, 126 Cal.App.4th at p. 1175.) Pitts thus cannot enforce
6
The ―Settlement Class‖ was defined to mean all taxpayers who paid the UUT from
February 16, 2004 to November 4, 2008.
12
the long term settlement agreement on behalf of the 2008 UUT taxpayers because they
are not parties to the contract.
Pitts argues that because the short form settlement agreement required his
attorneys to ―cooperate with the County in seeking voter approval of the UUT,‖ he was
precluded from raising objections to Measure U prior to the election. We disagree.
Nothing in the short form settlement agreement prohibited Pitts or his counsel from
objecting to ballot materials on the grounds that they allegedly violated the constitutional
and statutory rights of the voters.
Finally, Pitts makes two almost incomprehensible arguments regarding the long
form settlement agreement. Pitts contends that ―the settlement had to have been
enforceable at the time the rights were waived by the party who allegedly waived those
legal rights.‖ He also argues at length that both the settlement agreement and the
judgment were not enforceable at the time of the election. Pitts seems to be arguing that
because the trial court had not approved the long form settlement agreement and entered
judgment as of the date of the election, he is not bound by the release provisions in the
contract. He does not and cannot, however, cite any relevant authority to support his
position.
We reject all of Pitts‘s arguments regarding the long form settlement agreement.
Pitts is barred by the agreement from challenging Measure U.
2. Pitts is Judicially Estopped from Challenging the 2008 UUT
a. Standard of Review
We review the findings of fact upon which the application of judicial estoppel is
based under the substantial evidence test. (Blix Street Records, Inc. v. Cassidy (2010)
191 Cal.App.4th 39, 46 (Blix).) When the facts are undisputed, we independently review
whether the elements of judicial estoppel have been satisfied. (Ibid.) Whether the
doctrine should be applied even if the necessary elements are satisfied is a matter within
the discretion of the trial court, which we review under the abuse of discretion standard.
(Id. at pp. 46-47.)
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b. Applicable Legal and Equitable Principles
Judicial estoppel is an equitable doctrine designed to maintain the integrity of the
courts and to protect the parties from unfair strategies. (MW Erectors, Inc. v.
Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422; Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).) The doctrine
prohibits a party from asserting a position in a legal proceeding that is contrary to a
position he or she successfully asserted in the same or some earlier proceeding.
(Blix, supra, 191 Cal.App.4th at p. 47; Jackson, at p. 181.)
―This doctrine rests on the principle that litigation is not a war game unmoored
from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial
system limits the affirmative duties owed by an advocate to his adversary, but that does
not mean it frees him to deceive courts, argue out of both sides of his mouth, fabricate
facts and rules of law, or seek affirmatively to obscure the relevant issues and
considerations behind a smokescreen of self-contradictions and opportunistic flip-flops.‖
(Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 558.)
The elements of judicial estoppel are ―(1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the
first position was not taken as a result of ignorance, fraud, or mistake.‖ (Jackson, supra,
60 Cal.App.4th at p. 183; accord Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987
[quoting Jackson].) Even if the necessary elements of judicial estoppel are satisfied, the
trial court still has discretion to not apply the doctrine. (Blix, supra, 191 Cal.App.4th at
pp. 46-47.)
c. The Trial Court Did Not Abuse Its Discretion in Applying Judicial
Estoppel in This Case
Each of the elements of judicial estoppel is satisfied in this case. First, Pitts took
two different positions regarding Measure U. Before the trial court approved the
14
settlement and entered judgment, Pitts championed the benefits of Measure U to the
voters. He argued that the settlement provided the non-monetary benefit of vindicating
the taxpayers‘ ―right to vote.‖ The benefit of holding the election, according to Pitts, was
―[p]riceless.‖ Pitts‘s lead counsel, too, boasted of the benefits of the election, stating
under oath that he would not have approved the settlement if the County had not agreed
to the election.
After the trial court approved the settlement and entered judgment, however, Pitts
changed his tune. He argued, in essence, that Measure U was a sham because of the
County‘s alleged misrepresentations to the voters and other wrongdoing. According to
Pitts, the County‘s misconduct was so egregious that the voters‘ constitutional rights
were violated and the election should be overturned.
Pitts asserted both of his inconsistent positions in judicial proceedings, namely in
the proceedings in the superior court in the Oronoz/Pitts class action. Further, he was
successful in asserting his first position. Based in part on his arguments regarding the
value of the election, the trial court approved the settlement, awarded Pitts $10,000, and
awarded his attorneys about $7.6 million in fees.
The two positions Pitts took were totally inconsistent. The election cannot at the
same time be a priceless benefit to the voters and a sham that deprived them of due
process.
Finally, Pitts did not take his first position as a result of ignorance, fraud or
mistake. Pitts knew all of the facts he now claims made the election a sham when he
claimed the election was a priceless benefit to the voters.
Having determined that the elements of judicial estoppel have been satisfied, we
must decide whether the trial court abused its discretion in applying the doctrine under
the particular facts and circumstances of this case. This is not a difficult decision. Pitts‘s
attempt to revive his action against the County is exactly the kind of litigation conduct
judicial estoppel is meant to prevent. When it suited their interests, Pitts and class
counsel championed the election that had already taken place. After securing millions of
15
dollars in payments from the County, they attacked the election as an affront to the
constitutional rights of the class they represent. We have no trouble concluding that the
trial court acted well within its discretion in applying the doctrine of judicial estoppel.
3. The Substantive Challenges to Measure U and the 2008 UUT by Pitts,
Owens and Munoz Are Meritless
Even if Pitts‘s substantive claims were not barred by the long form settlement
agreement and the doctrine of judicial estoppel, we would reject them on the merits.
Pitts, Owens and Munoz argue that the 2008 UUT is unlawful because Measure U
violated (a) the voters‘ due process rights, (b) the voters‘ free speech rights, and
(c) Proposition 218. Additionally, Pitts contends that the November 4, 2008, election
violated various provisions of the Election Codes. Each one of these substantive claims
raises questions of law we review de novo. (Greene v. Marin County Flood Control &
Water Conservation Dist. (2010) 49 Cal.4th 277, 287.)
a. The Ballot Materials Did Not Violate the Voters’ Due Process
Rights
Appellants argue that the ballot materials for Measure U were so misleading and
deceptive, they violated the voters‘ due process rights. Generally, a challenge to ballot
materials must be made before an election. Indeed, a postelection challenge to ballot
materials is not permitted by the Elections Code. (See Kerr, supra, 106 Cal.App.4th at
pp. 932-934; accord Horwath, supra, 212 Cal.App.3d at p. 773 [there is no statutory basis
for attacking the postelection effects of the ballot materials]; Friends of Sierra Madre v.
City of Sierra Madre (2001) 25 Cal.4th 165, 193-194 [citing Horwath with approval].)
Although the California appellate courts have recognized the ―possibility‖ that an
impartial analysis of a county measure or other ballot materials can be so misleading and
inaccurate ―that constitutional due process requires invalidation of the election‖ (Kerr,
16
supra, 106 Cal.App.4th at pp. 919, 934), no California appellate court, to our knowledge,
has invalidated an election on this basis.7
The courts have set a ―very high‖ bar (Kerr, supra, 106 Cal.App.4th at p. 934) for
litigants to successfully mount a postelection due process challenge to a ballot measure
for good reason. The trial court in this case aptly explained: ―California law makes it
hard to overturn elections. The reasons are fundamental. Voters, not judges, mainly run
our democracy. It would threaten that core tenet if one person who did not like the
election result could hire lawyers and with ease could invalidate an expression of popular
will.‖
In Horwath, the principal case upon which appellants rely, the court set forth the
parameters of a due process analysis. The court stated: ―Determination of how much
process is due in a local, direct decisionmaking context–where the complained-of
irregularities consist of omissions, inaccuracies or misleading statements in the ballot
materials—will depend on whether the materials, in light of other circumstances of the
election, were so inaccurate or misleading as to prevent the voters from making informed
choices. In conducting this inquiry courts should examine the extent of preelection
publicity, canvassing and other informational activities, as well as the substance or
content of such efforts. The ready availability of the text of the ordinance, or the official
dissemination and content of other related materials, such as arguments for or against the
measure, will also bear on whether the statutory noncompliance rendered the election
unfair. Finally, courts should take into account the materiality of the omission or other
informational deficiency. Flaws striking at the very nature and purpose of the legislation
are more serious than other, more ancillary matters.‖ (Horwath, supra, 212 Cal.App.3d
at pp. 777-778.)
7
Owens and Munoz‘s reliance on Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d
805 (Calfarm) is unpersuasive. The Calfarm decision did not address the issue of
whether ballot materials were so misleading that they violated the voters‘ due process
rights.
17
In Horwath, a measure authorizing a city rent control ordinance was placed on the
ballot. The ordinance set a new ―base rent‖ in the city‘s rent control scheme, which
―resulted in an 8 percent rent rollback.‖ (Horwath, supra, 212 Cal.App.3d at p. 770.)
The ballot materials, however, did not discuss the rent rollback. (Ibid.) Further, the voter
information pamphlet did not contain the actual text of the measure, though voters could
request a copy of it by mail. (Id. at pp. 770-771.)
The court concluded that the city attorney violated a statute requiring an impartial
analysis of the measure. (Horwath, supra, 212 Cal.App.3d at p. 778.) It also concluded,
however, that the omission of a definition of the lawful base rent on the ballot materials
fell ―somewhere in between a minimal defect and one going to the core character and
purpose of the proposed legislation.‖ (Id. at p. 779.) In light of general disclosures in the
ballot materials regarding nature of the ordinance, the preelection publicity on the rent
rollback, and the availability of the full text of the proposed ordinance, the court held that
the city‘s misconduct did not violate the voters‘ due process rights. (Ibid.)
Turning to the present case, the alleged deficiencies in the ballot materials relating
to Measure U do not even rise to the level of a ―minimal defect‖ contemplated by
Horwath. Appellants argue that the title ―Tax Continuation Measure‖ on the ballot was a
misleading description of Measure U because the County created the false impression
that the 1991 UUT was lawfully enacted. We disagree. Nowhere on the ballot does it
state that the 1991 UUT was lawful. Further, it is objectively correct that a UUT had
been imposed without interruption on the taxpayers since 1991, and that passage of
Measure U would continue that tax, albeit in modified form.
Next, appellants contend that the County misled the voters by falsely stating in the
ballot materials ―that a ‗yes‘ vote would result in a tax reduction.‖ We reject this
argument. The summary of the measure on the ballot and the impartial analysis
accurately stated that the tax rate would decrease. The opposition argument to Measure
U stated that while the tax rate would decrease, ―so many more services would be taxed,
the overall amount people will pay will go up.‖ In a preelection editorial, the Los
18
Angeles Times noted that the main argument against Measure U was that it would ―result
in a tax increase for more than 1 million residents of unincorporated areas.‖ The voters
thus were not misled by the ballot materials regarding a ―tax reduction.‖
Appellants contend that the summary and impartial analysis of Measure U falsely
stated that the UUT would fund essential services, including those related to sheriff‘s
deputies, parks, libraries, and street repairs. Nothing in the record, however, indicates
this statement is inaccurate.
Appellants also argue that the County failed to inform the voters about a number
of facts and circumstances relating to Measure U, including (1) the 1991 UUT had never
been approved by the voters and was unlawful, (2) ―new taxes‖ would be enacted by
Measure U, (3) a ―no‖ vote would ―eliminate‖ the UUT and prevent the imposition of a
$65 million per year tax, and (4) a ―no‖ vote was a vote for $25 million in refunds. The
County, however, was not required to state any of these things in the summary of the
measure or in the impartial analysis.
The County, through its counsel, was required to provide an impartial title and
summary of the purpose of the measure (Elec. Code, § 9105, subd. (a)), as well as a
separate impartial analysis showing the effect of the measure. (Elec. Code, § 9160,
subd. (b).) It was not required to inform the voters of all of the arguments against the
measure. That task fell to the opponents of the measure, who informed the voters of
many of the arguments appellants claim the County concealed. For example, the
argument against Measure U in the ballot materials stated that the County was proposing
a ―new tax.‖
Further, both the County‘s summary of the measure and impartial analysis could
not exceed 500 words. (Elec. Code, §§ 9105, subd. (a) & 9160, subd. (b).) This word
limit precluded the County from discussing every issue relating to Measure U in the
ballot materials. For voters interested in the details of the proposed tax, the County
included in the ballot materials a redlined version of the Utility Users Tax Ordinance,
showing the exact language of the proposed and then-existing ordinance. Where, as here,
19
the voters are provided the whole text of a proposed law or ordinance, we ordinarily
assume the voters voted intelligently on the matter. (Amador Valley Joint Union High
Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243-244.)
Additionally, the County was not required to inform the voters of the details of the
settlement prior to the election.8 It was possible at the time of the election that the court
would reject the settlement. A disclosure of the many terms of the contingent settlement
might have made the measure unnecessarily complicated and confusing.
In their many attacks on Measure U, appellants lose site of the very high bar they
must clear to prevail on their respective due process claims. Appellants cannot prevail by
merely showing that the County‘s impartial analysis (or summary of the measure) did not
educate the electorate ―as to all the legal nuances of the measure.‖ (Kerr, supra,
106 Cal.App.4th at p. 934.) They must instead demonstrate that the ballot materials had
―profoundly misled the electorate.‖ (Ibid.) Appellants do not come close to meeting this
standard. We therefore reject their due process claims.
b. Measure U Did Not Violate the Voters’ Rights to Free Speech and
Free Elections
Appellants argue that the ballot materials for Measure U violated their free speech
rights under article I, section 2 , subdivision (a) of the California Constitution9 and the
First Amendment to the United States Constitution.10 They fail to cite any evidence,
however, that the ballot materials, or any act by the County, in any way prohibited
8
Contrary to appellants‘ contention, the public was not completely in the dark about
the settlement. In an editorial dated July 18, 2008, the Los Angeles Times noted that the
Board approved a settlement in the Oronoz/Pitts class action.
9
This provision states: ―Every person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the abuse of this right. A law may
not restrain or abridge liberty of speech or press.‖ (Cal. Const., art I, § 2, subd. (a).)
10
The First Amendment states: ―Congress shall make no law . . . abridging the
freedom of speech . . . .‖ (U.S. Const., 1st Amend.)
20
appellants from speaking or writing about any topic, including Measure U. Appellants‘
contention that their free speech rights were violated is frivolous.
In support of their free speech arguments, appellants primarily rely on Stanson v.
Mott (1976) 17 Cal.3d 206 (Stanson) and cases that cite or interpret that case. The
plaintiffs in Stanson sued a public official for allegedly unlawfully spending public funds
to promote the passage of a bond issue. (Id. at p. 209.) The California Supreme Court
recognized that the ―the use of the public treasury to mount an election campaign‖ could
violate the voters‘ right to a ―free election‖ under former article II, section 2 of the
California Constitution.11 (Stanson, at p. 218.) The court then stated it did not need to
resolve this ―serious constitutional question‖ because the defendant did not have the
statutory authority to spend public funds. (Id. at pp. 219-220.) Contrary to appellants‘
contention, however, the Stanson court did not discuss whether the voters‘ free speech
rights were violated.
Our conclusion that appellants incorrectly characterized a Stanson claim as a free
speech claim does not end our discussion of this matter. We shall also discuss the merits
of appellants‘ Stanson claim against the County.
In Stanson, the California Supreme Court set forth a distinction between a public
agency‘s improper ―campaign‖ expenditures and proper ―informational‖ activities.
(Stanson, supra, 17 Cal.3d at p. 221.) The court stated: ―[T]he use of public funds to
purchase such items as bumper stickers, posters, advertising ‗floats,‘ or television and
radio ‗spots‘ unquestionably constitutes improper campaign activity [citations], as does
the dissemination, at the public expense, of campaign literature prepared by private
proponents or opponents of a ballot measure.‖ (Ibid.) ―On the other hand,‖ the court
further stated, ―it is generally accepted that a public agency pursues a proper
11
This provision, renumbered as article II, section 3 of the California Constitution
(East Bay Municipal Utility Dist. v. Appellate Department (1979) 23 Cal.3d 839, 844,
fn. 5), states: ―The Legislature shall define residence and provide for registration and
free elections.‖ (Cal. Const., art. II, § 3, former art. II, § 2.)
21
‗informational‘ role when it simply gives a ‗fair presentation of the facts‘ in response to a
citizen‘s request for information [citations] or, when requested by a public or private
organization, it authorizes an agency employee to present the department‘s view of a
ballot proposal at a meeting of such organization.‖ (Ibid.)
The court also recognized that in some cases ―the line between unauthorized
campaign expenditures and authorized informational activities is not so clear.‖ (Stanson,
supra, 17 Cal.3d at p. 222.) ―In such cases,‖ the court stated, ―the determination of the
propriety or impropriety of the expenditure depends upon a careful consideration of such
factors as the style, tenor and timing of the publication.‖ (Ibid.)
In Vargas v. City of Salinas (2009) 46 Cal.4th 1 (Vargas), the California Supreme
Court affirmed the distinction stated in Stanson regarding campaign and informational
activities. (Id. at pp. 33-34.) The court also clarified that ―Stanson does not preclude a
governmental entity from publicly expressing an opinion with regard to the merits of a
proposed ballot measure, so long as it does not expend public funds to mount a campaign
on the measure.‖ (Vargas, at p. 36.) ―[U]pon reflection,‖ the court further stated, ―it is
apparent that in many circumstances a public entity inevitably will ‗take sides‘ on a ballot
measure and not be ‗neutral‘ with respect to its adoption.‖ (Ibid.)
The court also stated that the ―potential danger to the democratic electoral
process‖ discussed in Stanson ―is not presented when a public entity simply informs the
public of its opinion on the merits of a pending ballot measure or of the impact on the
entity that passage or defeat of the measure is likely to have. Rather, the threat to the
fairness of the electoral process to which Stanson referred arises when a public entity or
public official is able to devote funds from the public treasury, or the publicly financed
services of public employees, to campaign activities favoring or opposing such measure.‖
(Vargas, supra, 46 Cal.4th at pp. 36-37.)
The measure at issue in Vargas was a proposal to reduce the UUT of the defendant
city. The city opposed the measure and produced various documents and reports,
including a newsletter to city residents, indicating the services that would be cut if the
22
measure passed. (Vargas, supra, 46 Cal.4th at pp. 11-12, 20.) The plaintiffs claimed that
the city improperly distributed ―campaign materials.‖ (Id. at p. 13.) The court, however,
held that the city merely engaged in informational activity rather than campaign activity.
(Id. at pp. 37-38.)
Here, appellants do not allege any facts indicating that the County spent public
funds to engage in campaign activities in support of Measure U. For example, there is no
allegation that the County purchased bumper stickers, posters, or television or radio
advertisements to promote the measure. Further, the summary and impartial analysis of
Measure U do not endorse the measure and, as we explained ante, are reasonably fair and
accurate. Appellants thus cannot maintain a claim against the County under Stanson and
Vargas.
c. Measure U Did Not Violate Proposition 218
Adopted by California voters in November 1996, Proposition 218 added articles
XIII C and XIII D to the California Constitution. Proposition 218 generally prohibits
local governments from imposing taxes without voter approval. (Schmeer v. County of
Los Angeles (2013) 213 Cal.App.4th 1310, 1319.)
Article XIII C, section 2, subdivision (c) of the California Constitution
(Subdivision (c)) provides: ―Any general tax imposed, extended, or increased, without
voter approval, by any local government on or after January 1, 1995, and prior to the
effective date of this article [November 6, 1996], shall continue to be imposed only if
approved by a majority vote of the voters voting in an election on the issue of the
imposition, which election shall be held within two years of the effective date of this
article [November 6, 1998] and in compliance with subdivision (b).‖
We shall refer to the period between January 1, 1995 and November 6, 1996, as
the ―window period.‖ According to the Howard Jarvis Taxpayers Association, the
sponsor of Proposition 218, ―the window period provision was intended to discourage
local taxing authorities from rushing to impose taxes after the ballot measure became
public knowledge but before its enactment.‖ (McBrearty v. City of Brawley (1997)
23
59 Cal.App.4th 1441, 1450 (McBrearty), disapproved on other grounds in Howard Jarvis
Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 816 (Howard Jarvis).) We
agree with this assessment of the purpose of the window period. (See McBrearty, at
p. 1450 [adopting assessment of Howard Jarvis Taxpayers Association].)
Owens and Munoz argue that the 1991 UUT is ―subject to the provisions of
Subdivision (c) because it was ‗imposed‘ on the Taxpayers [i.e., the class of taxpayers
they purport to represent] between January 1, 1995, and November 6, 1996.‖ They
further contend that the 1991 UUT violates Proposition 218 because it was not approved
by a majority of the voters prior to November 6, 1998.
Owens and Munoz, however, have no standing to challenge to the 1991 UUT.
Their complaint alleges they represent all persons ―living in and/or operating businesses
in the unincorporated areas of Los Angeles County from November 4, 2008 to the
present‖ who were charged the UUT ―approved pursuant to the illegal November 4, 2008
election.‖ Other parties, including Pitts, who represented the class of taxpayers who paid
the 1991 UUT, settled all claims against the County arising from the alleged illegal
nature of the tax. Accordingly, whether the 1991 UUT violated Proposition 218 is
irrelevant to the class action lawsuit brought by Owens and Munoz.12
12
Owens and Munoz argue that the 2008 UUT also violates Propositions 218 and 62
because it purports to continue an invalid tax. The only authority they cite to support this
argument is Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space
Authority (2008) 44 Cal.4th 431 (Silicon Valley), where the court stated ―voter consent
cannot convert an unconstitutional legislative assessment into a constitutional one.‖
(Id. at p. 449.) This statement, however, is taken out of context. The court held that
under Proposition 218 a local agency cannot impose a real property assessment unless
(1) the tax is approved by a weighted majority of voters and (2) the agency clears certain
―substantive hurdles‖ set forth in article XIII D, section 4 of the California Constitution.
(Silicon Valley, at p. 449.) The court thus held that voter approval was insufficient to
validate the assessment because the agency did not comply with additional, independent
constitutional requirements. In the present case, by contrast, there were no substantive
hurdles apart from voter approval that the County needed to clear in order to enact the
2008 UUT. Silicon Valley therefore is distinguishable.
24
In any case, the 1991 UUT did not violate Proposition 218. Proposition 218
requires local public entities ―to obtain voter approval of general taxes first imposed or
increased after January 1, 1995.‖ (Burbank-Glendale-Pasadena Airport Authority v. City
of Burbank (1998) 64 Cal.App.4th 1217, 1226, italics added; accord Citizens Assn. of
Sunset Beach v. Orange County Local Agency Formation Com. (2012) 209 Cal.App.4th
1182, 1194 [―The word ‗impose‘ usually refers to the first enactment of a tax‖].) As
stated ante, the purpose of the window period was to prevent taxing authorities from
rushing to impose taxes after the ballot measure became public knowledge. Because the
1991 UUT was first imposed long before the window period, it was not subject to
Proposition 218. (See Batt v. City and County of San Francisco (2010) 184 Cal.App.4th
163, 176 [tax already in place prior to adoption of Proposition 218 was not subject to
Proposition 218].)
Owens and Munoz‘s reliance on Howard Jarvis is misplaced. There, the plaintiffs
sued a city for allegedly imposing and collecting a UUT on its residents without the voter
approval mandated by Proposition 62 (Gov. Code, §§ 53720-53730). (Howard Jarvis,
supra, 25 Cal.4th at p. 812.) The issue was when the statute of limitations began to run.
(Ibid.) The court held that ―if, as alleged, the tax is illegal, its continued imposition and
collection is an ongoing violation, upon which the limitations period begins anew with
each collection.‖ (Ibid.) The court did not, however, discuss the meaning of the term
―impose‖ for purposes of Subdivision (c). Howard Jarvis thus does not hold that a tax
first imposed prior to January 1, 1995, is subject to Proposition 218.
Pitts argues that the 2008 UUT violated Proposition 218 because the County did
not state in the ballot materials that ―Measure U would (1) enact, for the first time, a voter
approved UUT and (2) would enact brand new taxes.‖ Pitts confuses election due
process requirements with the requirements of Proposition 218. Proposition 218 requires
voter approval of new local government taxes. The County fully complied with
Proposition 218 by holding an election on Measure U.
25
In his reply brief, Pitts argues that the 2008 UUT is a special tax and not a general
tax. This is significant because a general tax can be imposed by a majority vote, while a
special tax needs a two-thirds vote for approval. (Cal. Const., art. XIII C, § 2, subds. (c)
& (d).) Pitts claims that the 2008 UUT is void because it was not approved by a two-
thirds vote. He forfeited this argument, however, because he did not make it in his
motion to enforce the settlement in the trial court or in his opening brief in this court.
(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [appellant waived issue
he failed to raise in the trial court].)
Pitts, furthermore, does not have standing to pursue this argument. The judgment
and the settlement agreement required the County to hold an election pursuant to
applicable law, but stated nothing about interpreting the election results. Whether the
2008 UUT is a general or special tax is an issue relevant to interpreting the election
results, not whether the election was held pursuant to applicable law. Pitts therefore
cannot challenge the County‘s interpretation of the election results as part of his motion
to enforce the settlement.
In any case, the 2008 UUT is not a special tax. A special tax ―means any tax
imposed for specific purposes, including a tax imposed for specific purposes, which is
placed into a general fund.‖ (Cal. Const., art. XIII C, § 1, subd. (d).) ―The essence of a
special tax ‗is that its proceeds are earmarked or dedicated in some manner to a specific
project or projects.‘ ‖ (Bay Area Cellular Telephone Co. v. City of Union City (2008)
162 Cal.App.4th 686, 696.) Here, the proceeds of the 2008 UUT are deposited in the
County‘s general fund, and are not earmarked for any specific project.13 The 2008 UUT
is therefore a general tax.
13
Contrary to Pitts‘s argument, the ballot summary of Measure U did not indicate
otherwise. The summary stated that the tax would fund ―essential services, including
sheriff‘s deputies, parks, libraries, street repairs, and other general fund services.‖
(Italics added).
26
d. Measure U Did Not Violate the Elections Code
Pitts argues that the County violated Elections Code section 9105, subdivision (a),
which requires County counsel to provide an ―impartial statement of the purpose‖ of a
proposed measure in a summary placed on the ballot. He also contends the County
violated Elections Code section 9160, subdivision (b), which requires County counsel to
provide an ―impartial analysis of the measure showing the effect of the measure on the
existing law and the operation of the measure.‖
In support of his position, Pitts essentially rehashes the same contentions he made
in his due process claim. He contends, for example, that the measure title was
misleading. He also contends that ballot materials were deceptive and unfair because
they did not disclose the UUT was a ―new tax‖ or that a ―no‖ vote would have resulted in
$25 million in tax refunds. For the reasons we explained ante, we hold that the ballot
materials were reasonably fair and accurate. We therefore reject Pitts‘s claim that
Measure U violated the Elections Code.
DISPOSITION
The judgment dated May 12, 2012, in the Owens class action is affirmed. The
order dated April 26, 2012, in the Oronoz/Pitts class action is affirmed. Respondent
County of Los Angeles is awarded costs on appeal in both appeals.
CERTIFIED FOR PUBLICATION
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
27