The opinion
Filed 10/3/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALLIANCE SAN DIEGO et al.,
Plaintiffs and Respondents, D084969
v.
(Super. Ct. Nos. 37-2021-
CALIFORNIA TAXPAYERS ACTION
00024590-CU-MC-CTL &
NETWORK et al.,
37-2021-00024607-CU-MC-
Defendants and Appellants; CTL)
YES! FOR A BETTER SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Wendy M. Behan, Judge. Affirmed.
Briggs Law Corporation, Janna M. Ferraro and Cory J. Briggs for
Defendants and Appellants California Taxpayers Action Network,
Donna Frye, and Project for Open Government.
No appearance for Plaintiffs and Respondents Alliance San Diego,
Isidro D. Ortiz, and Michael McConnell.
No appearance for Plaintiff and Respondent City of San Diego.
1
Colantuono, Higsmith & Whatley, Michael G. Colantuono, Matthew C.
Slentz, and Adam N. Mentzer for Defendant and Respondent Yes! For a
Better San Diego.
No appearance for Defendant and Respondent Howard Jarvis
Taxpayers Association.
INTRODUCTION
The City of San Diego (the City) placed a citizens’ initiative,
Measure C, on the ballot for the March 2020 general and special election. As
we noted in Alliance San Diego v. City of San Diego (2023) 94 Cal.App.5th
419 (Alliance San Diego), the previous appeal in this case, Measure C
received 65.24 percent of the votes cast. In April 2021, the city council
adopted a resolution declaring Measure C had passed and additional
resolutions authorizing the issuance of bonds based on Measure C’s
provisions.
Alliance San Diego (Alliance) filed a petition for writ of mandate and a
reverse validation complaint, seeking a determination that the City’s
resolution declaring Measure C had passed was invalid. The City then filed a
validation complaint, seeking determinations that its resolution declaring
Measure C had passed and its related bond resolutions were valid. California
Taxpayers Action Network, Project for Open Government, and Donna Frye
(collectively, CTAN) and various other entities and individuals (collectively,
the opponents) filed answers to the City’s validation complaint. One of the
opponents, the Howard Jarvis Taxpayers Association (HJTA), filed a motion
for judgment on the pleadings. Concluding that Measure C required a two-
thirds vote to pass, the trial court granted the motion and entered a
judgment against the City.
2
On appeal from that judgment, in Alliance San Diego, we assumed that
Measure C is a citizens’ initiative, which requires only a simple majority vote
to pass, and concluded that the trial court erred by granting the motion for
judgment on the pleadings. (Alliance San Diego, supra, 94 Cal.App.5th at
p. 425.) However, because the record on appeal was not sufficiently
developed for us to determine whether Measure C is a bona fide citizens’
initiative, we reversed the judgment and remanded the matter for further
proceedings. (Id. at pp. 426, 448–449.)
On remand, the trial court granted the motion filed by the City and
Yes! For a Better San Diego (Yes Committee) to quash deposition subpoenas
served by CTAN on certain individuals who had supported Measure C.1
CTAN thereafter did not attempt to obtain any further discovery. Based on
the City’s administrative record, the trial court then conducted a bench trial
on the merits of the City’s validation complaint and Alliance’s reverse
validation complaint. At trial, CTAN argued that: (1) the trial court lacked
subject matter jurisdiction because Government Code section 53511 does not
authorize validation actions for either a citizens’ initiative or special taxes
imposed by a citizens’ initiative; (2) the case was not ripe for validation
because specific bonds have not yet been issued; (3) the California
Constitution and the San Diego City Charter require a two-thirds vote of the
electorate to approve the issuance of the Measure C bonds; and (4) Measure C
is not a bona fide citizens’ initiative and is instead a City-sponsored measure
which requires a two-thirds vote of the electorate and review under the
California Environmental Quality Act (CEQA). The trial court rejected all of
CTAN’s arguments and entered a validation judgment for the City.
1 The other opponents to the City’s validation action did not actively
participate in the proceedings after remand of the matter.
3
On appeal, CTAN restates the arguments that it made at trial, as
described ante. In addition, CTAN argues that the trial court erred by
excluding certain hearsay evidence regarding statements made by supporters
of Measure C. As explained post, we conclude that the trial court correctly
rejected CTAN’s arguments and excluded its hearsay evidence. Therefore, we
affirm the validation judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
Measure C, “Hotel Visitor Tax Increase for Convention Center
Expansion, Homelessness Programs and Street Repairs,” having received
sufficient valid signatures of registered city voters to qualify as a citizens’
initiative, was placed on the ballot for the March 3, 2020 municipal primary
election and municipal special election. Measure C was promoted by a
coalition of homeless rights advocates, civic and community activists, labor
unions, and businesses. As we explained in Alliance San Diego, Measure C, if
passed, would add a new provision, section 35.0201, subdivision (a) to the
San Diego Municipal Code, increasing the city’s transient occupancy tax
applied to overnight facilities by either 1.25, 2.25, or 3.25 percent, depending
on the proximity of the facilities to the general vicinity of downtown
San Diego. The additional tax revenues raised by Measure C would be used
only for certain special purpose activities (i.e., homelessness programs, street
repairs, and convention center improvements, operations, support activities,
and business development programs). Measure C would also authorize the
City to issue and sell bonds, to be repaid from the applicable allocated portion
of those additional tax revenues.
2 For additional factual and procedural background, refer to our opinion
in Alliance San Diego, supra, 94 Cal.App.5th 419.
4
Following the March 3, 2020 election, the city clerk certified the
results, stating that 239,024 electors, or 65.24 percent, voted for Measure C,
and 127,349, or 34.76 percent, voted against Measure C. On April 6, 2021,
the city council passed resolution R-313485, declaring that Measure C was
approved in the March 3, 2020 election. On that date, the city council also
passed two resolutions related to Measure C, i.e., resolution R-313486, which
authorized and approved the issuance and sale of homelessness program
bonds, and resolution R-313487, which authorized and approved the issuance
and sale of convention center modernization bonds.
On June 3, 2021, Alliance (joined by individual plaintiffs
Isidro D. Ortiz, Alliance’s board chair, and Michael W. McConnell) filed a
petition for writ of mandate and reverse validation complaint against the
City, challenging the validity of resolution R-313485, which declared
Measure C had been approved, and all related actions subsequently taken by
the City as a result, including resolutions R-313486 and R-313487. The City
filed an answer to the writ petition and reverse validation complaint.
On June 4, the City filed a validation complaint, seeking
determinations that its resolutions declaring that Measure C had passed and
authorizing and approving the Measure C bonds (as set forth in resolutions
R-313486 and R-313487) were valid. Answers to its validation complaint
were filed by CTAN, HJTA, Alliance, and the Yes Committee. The first three
answers asked the court to invalidate Measure C, while the Yes Committee’s
answer supported the City’s complaint. The trial court consolidated the
validation and reverse validation actions.
HJTA and Alliance filed a motion for judgment on the pleadings,
arguing that the City improperly applied a simple majority vote requirement
for approval of Measure C. CTAN joined in the motion. The trial court
5
granted the motion, concluding that the City’s ordinance placing Measure C
on the ballot stated that a two-thirds vote was required for its passage and
that the City could not thereafter reduce the required threshold to a simple
majority. On May 2, 2022, the court entered judgment against the City,
invalidating resolution R-313485 and directing the City to refrain from
implementing or enforcing Measure C or any resolutions dependent on its
passage.
On appeal, the City and the Yes Committee argued that Measure C
was a citizens’ initiative and therefore required only a simple majority vote
for passage, despite the City’s ordinance stating otherwise. (Alliance San
Diego, supra, 94 Cal.App.5th at p. 425.) In Alliance San Diego, we assumed,
as did the trial court, that Measure C is a citizens’ initiative. (Ibid.) We then
concluded, among other things, that Measure C was subject to a simple
majority vote and therefore the trial court erred by granting the motion for
judgment on the pleadings. (Ibid.) Because our conclusion was based on the
assumption that Measure C is a citizens’ initiative and we found that the
record was “not sufficiently developed to consider the challenge to that
assumption raised by affirmative defense in [CTAN’s] answer to the City’s
validation complaint,” we reversed the judgment and remanded the matter
for further proceedings. (Id. at p. 426.) In so doing, we directed the trial
court to consider the issue of whether the City retained substantial control
over the initiative process or otherwise acted in a way that shows Measure C
is not a bona fide citizens’ initiative. (Id. at p. 448.)
On remand, the trial court granted the motion filed by the City and the
Yes Committee to quash deposition subpoenas served by CTAN on
Jaymie Bradford and Carol Kim. After the parties submitted their trial
briefs, the court excluded certain hearsay evidence offered by CTAN and
6
conducted a bench trial on the administrative record. On August 30, 2024,
the trial court issued a minute order rejecting each of CTAN’s arguments and
finding in favor of the City and the Yes Committee. Also on August 30, the
court entered a judgment in favor of the City, validating Measure C and
resolutions R-313485, R-313486, and R-313487.
CTAN timely filed a notice of appeal challenging the judgment. CTAN
filed an appellant’s opening brief and reply brief and the Yes Committee filed
a respondent’s brief. Although the City participated in the trial on its
validation action, it has not filed a respondent’s brief in the instant appeal.
DISCUSSION
I
Trial Court Had Subject Matter Jurisdiction
CTAN contends that the judgment must be reversed because the trial
court lacked subject matter jurisdiction over the City’s validation action. In
particular, it argues that Government Code section 53511, subdivision (a)
(section 53511(a)), which the City cited as authority for its validation action,
is not a law under Code of Civil Procedure section 860 that authorizes an
action to validate a citizens’ initiative or special taxes imposed by a citizens’
initiative. We disagree.
A
“The principle of ‘subject matter jurisdiction’ relates to the inherent
authority of the court involved to deal with the case or matter before it.”
(Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1087.) Subject
matter jurisdiction is conferred by law (i.e., by the California Constitution or
statute). (People v. Hampton (2019) 41 Cal.App.5th 840, 846.) “[I]n the
absence of subject matter jurisdiction, a trial court has no power ‘to hear or
determine [the] case.’ ” (Varian Medical Systems, Inc. v. Delfino (2005)
7
35 Cal.4th 180, 196.) “[A]ny judgment or order rendered by a court lacking
subject matter jurisdiction is ‘void on its face . . . .’ ” (Ibid.) On appeal, the
question of whether a trial court had subject matter jurisdiction over a
controversy is a question of law, which we review de novo. (Robbins v.
Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774.) Likewise, “[m]atters of
statutory interpretation are also subject to de novo review.” (San Diegans for
Open Government v. City of San Diego (2015) 242 Cal.App.4th 416, 427
(San Diegans for Open Government).)
“There is subject matter jurisdiction to entertain a validation
proceeding only if there is a statutory basis for that jurisdiction . . . .” (Santa
Clarita Organization for Planning & Environment v. Castaic Lake Water
Agency (2016) 1 Cal.App.5th 1084, 1101.) Code of Civil Procedure section 860
provides: “A public agency may upon the existence of any matter which
under any other law is authorized to be determined pursuant to this
chapter . . . bring an action in the superior court . . . to determine the validity
of such matter. The action shall be in the nature of a proceeding in rem.”
Code of Civil Procedure section 864 provides:
“For purposes of this chapter, bonds, warrants, contracts,
obligations, and evidences of indebtedness shall be deemed
to be in existence upon their authorization. Bonds and
warrants shall be deemed authorized as of the date of
adoption by the governing body of the public agency of a
resolution or ordinance authorizing their issuance . . . .”
(Italics added.)
The above validation statutes do not set forth the specific matters that are
subject to validation actions, but instead rely on other statutes for such
authorization. (Kaatz v. City of Seaside (2006) 143 Cal.App.4th 13, 31 [“[W]e
look to other statutes to determine the scope of public agency actions that are
subject to validation under the validation statutes.”].) Therefore, as one court
8
noted, “[d]etermining whether the validation statutes apply to a particular
agency action is an exercise in cross-referencing.” (Coachella Valley Water
Dist. v. Superior Court (2021) 61 Cal.App.5th 755, 768.)
B
In its complaint, the City alleged that it was authorized to bring, and
the trial court had subject matter jurisdiction over, its validation action
pursuant to Code of Civil Procedure section 860 and Government Code
section 53511. In its answer to the complaint, CTAN alleged, among other
things, that the trial court did not have subject matter jurisdiction over the
City’s validation action. In its August 30, 2024 minute order, the trial court
rejected CTAN’s argument that it did not have subject matter jurisdiction
under section 53511(a) because there were no specific bonds ready to be
issued pursuant to Measure C or its related resolutions. The court noted that
section 53511(a) authorizes a local agency to “ ‘bring an action to determine
the validity of its bonds, warrants, contracts, obligations or evidences of
indebtedness . . . .’ ” Citing Davis v. Fresno Unified School Dist. (2023)
14 Cal.5th 671, 691 (Davis), the court found that the Measure C bonds
“exist[ed]” pursuant to Code of Civil Procedure section 860 when the city
council passed resolutions R-313486 and R-313487 authorizing the issuance
of bonds pursuant to Measure C and that those resolutions were necessary
first steps “inextricably bound up” with the ultimate issuance of those bonds.
In its judgment, the court declared that the City’s validation action was
properly brought under California Code of Civil Procedure sections 860
et seq. and that it “had jurisdiction over all persons and the subject matter of
this action.”
9
C
On appeal, CTAN again argues that the trial court lacked subject
matter jurisdiction over the City’s validation action. We, as the trial court
did below, reject that argument and conclude that the trial court had subject
matter jurisdiction over the City’s validation action.
Section 53511(a) provides: “A local agency may bring an action to
determinate the validity of its bonds, warrants, contracts, obligations or
evidences of indebtedness pursuant to Chapter 9 (commencing with
Section 860) of Title 10 of Part 2 of the Code of Civil Procedure.” Contrary to
CTAN’s assertion, resolutions R-313486 and R-313487 authorized the
issuance of bonds pursuant to Measure C. Resolution R-313486 states in
part:
“2. Consistent with the intent of the voters in approving
Measure C, the Council authorizes and approves the
issuance and sale of the Homelessness Program Bonds with
maximum bonded indebtedness, including financing costs,
in an amount not to exceed [$750 million] . . . .
“3. The Chief Financial Officer is authorized and directed to
coordinate the preparation of bond indenture and related
documents, for the Council’s future approval, governing the
issuance and sale of the Homelessness Program Bonds on
terms and conditions consistent with this Resolution.”
(Italics added.)
Resolution R-313487 included identical language “authoriz[ing] and
approv[ing] the issuance and sale of the Convention Center Modernization
Bonds with maximum bonded indebtedness, including financing costs, in an
amount not to exceed [$200 million] . . . .” (Italics added.) Accordingly, both
resolutions expressly state that the city council “authorizes and approves the
issuance and sale of” bonds for the homelessness program and convention
10
center modernization pursuant to Measure C. Furthermore, both resolutions
“authorize[ ] and direct[ ]” the City’s chief financial officer to coordinate the
preparation of bond indenture and related documents for the city council’s
future approval of the issuance and sale of the homelessness program and
convention center modernization bonds consistent with those resolutions.
Although CTAN correctly notes that neither resolution R-313486 nor
resolution R-313487 authorized or approved the issuance and sale of any
specific bonds, we conclude that the trial court nevertheless had subject
matter jurisdiction over the City’s validation action because those resolutions
authorized and approved the preliminary steps necessary for, and therefore
were inextricably bound up with, the ultimate issuance of specific bonds. In
Davis, our Supreme Court stated: “In our view, a local agency contract [is
subject to a validation action under section 53511] if it is inextricably bound
up with government indebtedness or with debt financing guaranteed by the
agency. To satisfy this standard, the contract must be one on which the debt
financing of the project directly depends.” (Davis, supra, 14 Cal.5th at p. 691,
italics added.) Davis noted several appellate courts had applied the
“inextricably bound up with” standard in concluding validation actions were
authorized for various contracts that were precursors to, or preliminary steps
toward, government indebtedness (e.g., local agency’s loan guarantee which
was necessary to allow public benefit corporation to obtain project financing,
local agency contract to generate funds to repay government debt, and
contract for construction of garage financed with bonds to be paid from tax
increment generated by retail center for which garage was essential
component). (Id. at p. 690.)
Here, we conclude that by “authoriz[ing] and approv[ing] the issuance
and sale of” bonds for Measure C’s homelessness program and convention
11
center modernization, resolutions R-313486 and R-313487 are “inextricably
bound up with” government indebtedness for purposes of section 53511(a).
(Davis, supra, 14 Cal.5th at p. 691.) We also conclude that “the debt
financing of the [program or] project directly depends” on those preliminary
authorizations and approvals of issuance of bonds for that program and
project. (Ibid.) Furthermore, we conclude that the bonds authorized and
approved by resolutions R-313486 and R-313487 “exist[ed]” within the
meaning of Code of Civil Procedure section 860 because bonds “shall be
deemed to be in existence upon their authorization” and issuance of the
Measure C bonds was authorized as of the date of those resolutions. (Code
Civ. Proc., § 864.) Therefore, we reject CTAN’s assertion that validation
actions are authorized under section 53511(a) only for issuance of actual,
existing bonds or other binding evidence of indebtedness and not for
preliminary, or prerequisite, authorizations or other actions necessary for the
future issuance of bonds.3 We conclude that CTAN has not carried its
burden on appeal to show that section 53511(a) did not apply to authorize the
City’s validation action and, in particular, that Davis’s test for
section 53511(a) validation actions does not apply to the instant
circumstances.4 Accordingly, we conclude that the trial court correctly found
3 For example, both resolutions authorized and directed the City’s chief
financial officer to coordinate the preparation of bond indenture and related
documents for future approval by the city council, which actions were
preliminary steps necessary for the ultimate issuance of the bonds pursuant
to Measure C and resolutions R-313486 and R-313487 and therefore were
“inextricably bound up with” the future issuance of specific Measure C bonds.
(Davis, supra, 14 Cal.5th at p. 691.)
4 Importantly, we note that CTAN’s opening brief and reply brief omit
any discussion of Davis’s “inextricably bound up with” test for validation
actions authorized by section 53511(a) and its application to the City’s
12
that section 53511(a) specifically authorized the City’s validation action and
that it had subject matter jurisdiction over the action pursuant to Code of
Civil Procedure section 860 and section 53511(a).5
II
The City’s Validation Action Was Ripe for Adjudication
CTAN contends that the trial court also erred by finding the City’s
validation action was ripe for validation. CTAN argues, as it did at trial, that
the City’s validation action was not ripe for adjudication because the City had
not yet authorized the issuance of any existing bonds. We disagree.
A
Ripeness is a doctrine that applies to prevent courts from issuing
purely advisory opinions or resolving abstract differences of opinion. (Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170
(Pacific Legal Foundation).) The ripeness doctrine primarily reflects the
principle that “judicial decisionmaking is best conducted in the context of an
actual set of facts so that the issues will be framed with sufficient
definiteness to enable the court to make a decree finally disposing of the
controversy.” (Ibid.)
“In determining whether a controversy is ripe, we use a two-pronged
test: (1) whether the dispute is sufficiently concrete to make declaratory
relief appropriate; and (2) whether the withholding of judicial consideration
validation action. (Davis, supra, 14 Cal.5th at p. 691.) Also, we reject
CTAN’s assertion that resolutions R-313486 and R-313487 were “merely”
declarations of official intent pursuant to United States Treasury
Regulations. As discussed ante, those resolutions expressly authorized and
approved the issuance and sale of bonds pursuant to Measure C.
5 By so concluding, we need not, and do not, address the Yes Committee’s
argument that CTAN is estopped from challenging the trial court’s subject
matter jurisdiction because it did not raise that issue at trial.
13
will result in a hardship to the parties. [Citation.] Under the first prong, the
courts will decline to adjudicate a dispute if ‘the abstract posture of [the]
proceeding makes it difficult to evaluate . . . the issues’ [citation], if the court
is asked to speculate on the resolution of hypothetical situations [citation], or
if the case presents a ‘contrived inquiry’ [citation]. Under the second prong,
the courts will not intervene merely to settle a difference of opinion; there
must be an imminent and significant hardship inherent in further delay.’
[Citation.]” (Farm Sanctuary, Inc. v. Department of Food & Agriculture
(1998) 63 Cal.App.4th 495, 502 (Farm Sanctuary, Inc.).)
B
We conclude, as the trial court did in its minute order, that the first
prong for ripeness of the City’s validation action was satisfied. Specifically,
we conclude that the controversy regarding the validity of Measure C and the
City’s authority to incur debt against Measure C’s tax proceeds was
“sufficiently concrete” for the trial court to adjudicate the merits of the City’s
validation action. (Farm Sanctuary, Inc., supra, 63 Cal.App.4th at p. 502.)
Given the results of the March 2020 election and the city council’s passage of
resolutions R-313486 and R-313487, there was nothing “abstract” about the
issues raised in the City’s validation action that would make it difficult for
the trial court to evaluate and decide those issues, nor was the court asked to
speculate on the resolution of hypothetical situations. (Ibid.) Contrary to
CTAN’s assertion, the absence of authorization and/or approval of existing
bonds did not reduce the City’s validation action to a mere request that the
trial court adjudicate a hypothetical situation.6 As discussed ante, the
6 CTAN cites as an example of existing bonds a general obligation bond
measure proposed by the City which was placed on the November 2020 ballot
(i.e., Measure A). However, that measure was subject to different
requirements (e.g., a two-thirds vote of the electorate pursuant to
14
Measure C bonds authorized and approved by resolutions R-313486 and R-
313487 “exist[ed]” within the meaning of Code of Civil Procedure section 860
because bonds “shall be deemed to be in existence upon their authorization.”
(Code Civ. Proc., § 864.) Accordingly, the City’s action asked the trial court to
adjudicate the validity of an existing set of concrete facts such that its “issues
[were] framed with sufficient definiteness to enable the court to make a
decree finally disposing of the controversy.” (Pacific Legal Foundation,
supra, 33 Cal.3d at p. 170.)
We also conclude, as did the trial court, that the second prong for
ripeness of the City’s validation action was satisfied. If the trial court had
refrained from adjudicating the City’s action, the City would have suffered a
hardship. (Farm Sanctuary, Inc., supra, 63 Cal.App.4th at p. 502.)
Measure C’s programs and projects depended on bond revenues to be repaid
by the special taxes imposed by Measure C. If the trial court had not
adjudicated the City’s validation action, the City may not have been able to
proceed toward issuance of bonds for those programs and projects or their
issuance at reasonable interest rates because the “ ‘possibility of future
litigation [would] very likely [have had] a chilling effect upon potential third
party lenders, thus resulting in higher interest rates or even the total denial
of credit . . . .’ [Citation.]” (McLeod v. Vista Unified School Dist. (2008)
158 Cal.App.4th 1156, 1168.) Contrary to CTAN’s assertion, the City’s action
did not ask the trial court “merely to settle a difference of opinion; there [was]
an imminent and significant hardship inherent in further delay. [Citation.]”
Government Code, § 43610 et seq.) and therefore does not show the City’s
instant validation action did not involve an existing set of concrete facts or
was otherwise not ripe for adjudication. Furthermore, to the extent CTAN
asserts that Measure C and/or resolutions R-313486 and R-313487 were
required to comply with Government Code section 43610 et seq., we reject
that conclusory assertion.
15
(Farm Sanctuary, Inc., at p. 502.) CTAN therefore has not carried its burden
on appeal to show the City would not suffer hardship if its validation action
were not adjudicated by the trial court. Accordingly, we conclude that the
trial court correctly found that the City’s validation action was ripe for
adjudication.
III
The Special Fund Doctrine Applied to Exempt Measure C’s Related Bond
Resolutions from the Two-Thirds Vote Requirement for General Obligation
Bonds
CTAN contends that the trial court erred by finding that resolutions
R-313486 and R-313487, which authorized and approved the issuance and
sale of Measure C bonds, were not subject to the two-thirds vote
requirements of the California Constitution and the San Diego City Charter.
In particular, it argues the special fund doctrine does not apply in the
circumstances of this case.
A
California Constitution, article XVI, section 18 provides:
“No . . . city . . . shall incur any indebtedness or liability in any manner or for
any purpose exceeding in any year the income and revenue provided for such
year, without the assent of two-thirds of the voters of the public entity voting
at an election to be held for that purpose. . . .” The San Diego City Charter,
section 99 sets forth a similar two-thirds vote requirement to issue bonds or
incur other indebtedness, but excepts from that vote requirement certain
indebtedness for which the interest is paid from an annual tax sufficient to
pay that interest when due and for which there is a sinking fund to pay its
principal, stating:
“The City shall not incur any indebtedness . . . exceeding in
any year the income and revenue provided for such year
unless the qualified electors of the City, voting at an
16
election to be held for that purpose, have indicated their
assent as then required by the Constitution of the State of
California, nor unless before or at the time of incurring
such indebtedness provision shall be made for the collection
of an annual tax sufficient to pay the interest on such
indebtedness as it falls due, and also provision to constitute
a sinking fund for the payment of the principal thereof, on
or before maturity, which shall not exceed forty years from
the time of contracting the same . . . .” (Italics added.)
California Constitution, article XVI, section 18 “was intended to
prevent municipalities from incurring debts and liabilities exceeding their
revenue, a practice that had created heavy burdens on future municipal
revenues.” (Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 313.)
The purpose of that constitutional provision “is to safeguard the general
funds and property of a public entity by preventing bondholders from forcing
an increase in the taxes of, or foreclosing on the general assets and property
of, the issuing entity to obtain payment.” (City of Bakersfield v. West Park
Home Owners Assn. & Friends (2016) 4 Cal.App.5th 1199, 1205 (City of
Bakersfield).)
However, the California Supreme Court has recognized a number of
exceptions to that constitutional debt limit. (Law Offices of Cary S. Lapidus
v. City of Wasco (2004) 114 Cal.App.4th 1361, 1367.) In particular, the court
has adopted the special fund doctrine, holding that article XVI, section 18 of
the California Constitution “is not violated by revenue bonds or other
obligations which are payable solely from a special fund, provided the
governmental body is not liable to maintain the special fund out of its general
funds, or by tax levies, should the special fund prove insufficient.” (City of
Oxnard v. Dale (1955) 45 Cal.2d 729, 733 (City of Oxnard), italics added.)
“[S]uch an obligation is not considered to be an indebtedness or liability of the
17
political subdivision or agency issuing the bonds, within the meaning of the
constitutional limitation.” (Ibid.)
B
CTAN argues, as it did at trial, that Measure C and resolutions
R-313486 and R-313487 authorize and approve general obligation bonds that
obligate the City to make payments on those bonds and therefore they are not
exempt from the constitutional two-thirds vote requirement under the special
fund doctrine. In support of its assertion that Measure C and those
resolutions obligate the City to make payments on the bonds, CTAN quotes
language from proposed San Diego Municipal Code section 35.0210(g)
(section 35.0210(g)) which would be added by Measure C, as follows:
“All of the Bonds authorized to be issued pursuant to this
Section shall be limited obligations of the City payable
solely from the Additional Tax Revenues attributable to the
pertinent Additional Tax Component. Notwithstanding the
foregoing, the City may, but is not obligated to, supplement
Additional Tax Revenues with other legally available funds
to make payments on the Bonds. The issuance of Bonds
pursuant to this Section shall not directly, indirectly, or
contingently obligate the City to levy or pledge any form of
taxation other than the Additional Tax.” (Italics added.)
CTAN argues that the Measure C language italicized ante would obligate the
City to make payments on the Measure C bonds out of its general funds and
therefore authorization and approval of those general obligation bonds would
require a two-thirds vote of the electorate. Specifically, CTAN asserts that
the use of the word “may” in proposed section 35.0210(g) would obligate the
City to pay any shortfall in Measure C bond payments from its general funds
or sources other than the special tax funds established by Measure C.
As discussed ante, matters of statutory interpretation are subject to our
de novo, or independent, review. (San Diegans for Open Government, supra,
18
242 Cal.App.4th at p. 427.) We likewise independently review local agency
ordinances, municipal codes, and written documents that do not involve
conflicting extrinsic evidence. (Meyers v. Board of Administration etc. (2014)
224 Cal.App.4th 250, 256; Parsons v. Bristol Development Co. (1965) 62
Cal.2d 861, 865–866.) “The rules of statutory construction applicable to
statutes are also applicable to municipal ordinances.” (Lateef v. City of
Madera (2020) 45 Cal.App.5th 245, 253.) In interpreting statutory language,
we first look to the plain meaning of the statutory language, then to its
legislative history, and finally to the reasonableness of the proposed
construction of the statutory language. (Ibid.) Where the language of a
statute is clear, its plain meaning should be followed. (Ibid.) “We do not
consider statutory language in isolation; instead, we examine the entire
statute to construe the words in context.” (Kirzhner v. Mercedes-Benz USA,
LLC (2020) 9 Cal.5th 966, 972 (Kirzhner).)
Based on our independent review of proposed section 35.0210(g) and
resolutions R-313486 and R-313487, we conclude that their plain language
cannot reasonably be interpreted as obligating the City to make payments on
the Measure C bonds out of its general funds or any funds other than the
special tax funds established by Measure C. First, the italicized language
ante from proposed section 35.0210(g) cannot be read in isolation from, but
instead must be read together with, the sentence preceding it and the
sentence succeeding it. (Kirzhner, supra, 9 Cal.5th at p. 972.) As discussed
ante, the first sentence of proposed section 35.0210(g) provides: “All of the
Bonds authorized to be issued pursuant to this Section shall be limited
obligations of the City payable solely from the Additional Tax Revenues
attributable to the pertinent Additional Tax Component.” (Italics added.)
That language could not be more clear that the Measure C bonds would be
19
“limited,” and not general, obligations of the City and that payments on those
bonds would be made “solely” from the Measure C special taxes.
Likewise, the third sentence of proposed section 35.0210(g) provides:
“The issuance of Bonds pursuant to this Section shall not directly, indirectly,
or contingently obligate the City to levy or pledge any form of taxation other
than the Additional Tax.” (Italics added.) By stating that the Measure C
bonds “shall not directly, indirectly, or contingently obligate” the City to
make payments on those bonds other than from the Measure C special tax
funds, the third sentence could not be more clear that the Measure C bonds
were not general obligations of the City. (Italics added.) Therefore, in
interpreting the second sentence of proposed section 35.0210(g) in the context
of the two sentences preceding and succeeding that sentence, we conclude
that the word “may” as used in that sentence, which would allow the City to
make supplemental payments on the Measure C bonds from legally available
funds other than the Measure C special tax funds, cannot reasonably be
interpreted as obligating the City to make payments from its general funds
or funds other than the Measure C special tax funds.7
CTAN notes that resolutions R-313486 and R-313487 omit the
language in the second sentence of proposed section 35.0210(g) and suggests
that omission supports its argument that the Measure C bonds would be
general obligation bonds. On the contrary, we conclude the omission of that
language supports, rather than detracts, from our conclusion that the
7 CTAN’s reference to the City’s definition of general obligation bonds
does not help its argument that the Measure C bonds would be general
obligation bonds. That definition requires general obligation bonds to be
secured by a promise to levy taxes in an unlimited amount as necessary to
pay the debt service. Because the Measure C bonds do not include any such
promise or security other than the Measure C special tax funds, they are not
general obligation bonds even under the City’s own definition.
20
Measure C bonds would not be general obligation bonds of the City. Those
resolutions provide, among other things, that the homelessness program
bonds and the convention center modernization bonds “shall be valid and
binding limited obligations of the City” and “[t]he City shall repay all
principal and interest on” those bonds “solely from” the additional tax
revenues raised by the Measure C special taxes. (Italics added.) Accordingly,
there is no language in those resolutions (nor any language omitted from
proposed section 35.0210(g)) that would support CTAN’s argument that the
Measure C bonds would be general obligation bonds of the City instead of
special fund or limited obligation bonds.8
Because Measure C (i.e., section 35.0210(g) proposed therein) and
resolutions R-313486 and R-313487 clearly and unequivocally obligate the
City to make payments on the Measure C bonds only from the special taxes
imposed by Measure C and not from the City’s general funds or other legally
available funds, we conclude that the Measure C bonds would not be general
obligation bonds, but instead “obligations which are payable solely from a
special fund [or special funds],” for which the City would not be liable to
make payments on out of its general funds or by tax levies if those special
funds under Measure C would prove to be insufficient. (City of Oxnard,
8 To the extent CTAN asserts that the special fund doctrine can only
apply when there is a specific agency, rather than a special fund, that is
responsible for making, or obligated to make, payments on the bonds, it does
not cite any case or other authority so holding and we are unpersuaded. In
City of Oxnard, the Supreme Court held that the special fund doctrine applies
to “obligations which are payable solely from a special fund, provided the
governmental body is not liable to maintain the special fund out of its general
funds, or by tax levies, should the special fund prove insufficient.” (City of
Oxnard, supra, 45 Cal.2d at p. 733.) In so holding, the court did not limit the
special fund doctrine to obligations only of a specific agency that would be
benefited, as opposed to a special fund overseen by a local agency (e.g., the
Measure C special tax funds overseen by the City).
21
supra, 45 Cal.2d at p. 733, italics added.) As such, the Measure C bonds
would not be “considered to be an indebtedness or liability of the political
subdivision or agency issuing the bonds, within the meaning of the
constitutional limitation.” (Ibid.) Accordingly, we conclude that the trial
court correctly found that the special fund doctrine applied to exclude
Measure C and resolutions R-313486 and R-313487 from the two-thirds vote
requirements of article XVI, section 18 of the California Constitution and
section 99 of the San Diego City Charter.9
IV
Measure C Is a Bona Fide Citizens’ Initiative
CTAN contends that the trial court erred by finding that Measure C is
a bona fide citizens’ initiative which requires only a simple majority vote of
the electorate and not, as CTAN argued, a City-sponsored measure which
requires a two-thirds vote.10
A
In Alliance San Diego, we assumed that Measure C is a citizens’
initiative. (Alliance San Diego, supra, 94 Cal.App.5th at p. 425.) Based on
9 Because we conclude the trial court correctly found the special funds
doctrine applied to exclude the Measure C bonds and resolutions R-313486
and R-313487 from the two-thirds vote requirement, we need not, and do not,
address CTAN’s additional argument that those bonds also would not be
revenue bonds that would be exempt from the two-thirds requirement.
10 Although CTAN also argued at trial and in its opening brief that
Measure C also requires review under CEQA, its reply brief withdrew that
argument. Accordingly, we do not address the merits of that argument. At
oral argument, CTAN’s counsel represented that CTAN’s withdrawal of its
CEQA argument also included a withdrawal of its challenge to the trial
court’s finding that CTAN had not carried its burden to show the City had
substantial control over Measure C. We elect to address that issue despite
CTAN’s concession at oral argument.
22
that assumption, we concluded that the trial court erred by finding
Measure C requires a two-thirds vote of the electorate and by granting the
motion for judgment on the pleadings. (Ibid.) However, because our
conclusion was based on the assumption that Measure C is a citizens’
initiative and we found that the record was “not sufficiently developed to
consider the challenge to that assumption raised by affirmative defense in
[CTAN’s] answer to the City’s validation complaint,” we reversed the
judgment and remanded the matter for further proceedings. (Id. at p. 426,
italics added.) We directed the trial court to consider on remand the issue of
whether the City retained substantial control over the initiative process or
otherwise acted in a way that shows Measure C is not a bona fide citizens’
initiative. (Id. at p. 448.)
In its August 30, 2024 minute order, the trial court found, among other
things, that CTAN had not met its burden to show the City had substantial
control of Measure C within the meaning of Rider v. County of San Diego
(1991) 1 Cal.4th 1 (Rider). In particular, the court rejected CTAN’s argument
that the involvement of Jaymie Bradford, one of the five proponents of
Measure C, indicated that the City had substantial control over the initiative.
The court noted Bradford at that time was the executive vice president and
chief operating officer of the San Diego Regional Chamber of Commerce and a
volunteer director of the San Diego Convention Center Corporation (SDCCC).
The court found that there was no indication that SDCCC or the City exerted
any control over Measure C. In particular, a January 2020 resolution passed
by SDCCC’s board of directors expressing support for Measure C did not
show either SDCCC or the City substantially controlled Measure C.
Following its minute order, the court entered the validation judgment for the
23
City, finding, among other things, that Measure C “was duly enacted by the
voters of the City of San Diego and is legal, valid, and binding.”
B
Under the California Constitution, the electorate retains the power of
the initiative to adopt laws by a majority vote. (Cal. Const., art. II, §§ 1, 8,
subd. (a), & 10, subd. (a); City and County of San Francisco v. All Persons
Interested in Matter of Proposition C (2020) 51 Cal.App.5th 703, 709
(Proposition C).) The power of the initiative may be exercised by the electors
of a city. (Cal. Const., art. II, § 11, subd. (a).) In particular, the electors of a
city may exercise their initiative power to adopt a special tax by a simple
majority vote. (County of Alameda v. Alameda County Taxpayers’ Assn., Inc.
(2024) 99 Cal.App.5th 226, 234 (Alameda) [“if a local special tax is imposed
via citizens’ initiative, only a simple majority vote is required to adopt it”];
Alliance San Diego, supra, 94 Cal.App.5th at p. 434 [“citizens’ initiatives
imposing special taxes need to be approved only by a simple majority” of the
electorate]; City and County of San Francisco v. All Persons Interested in the
Matter of Proposition G (2021) 66 Cal.App.5th 1058, 1070 (Proposition G);
Howard Jarvis Taxpayers Assn. v. City and County of San Francisco (2021)
60 Cal.App.5th 227, 230–231 (Howard Jarvis); City of Fresno v. Fresno
Building Healthy Communities (2020) 59 Cal.App.5th 220, 226, 231;
Proposition C, at pp. 708–709, 715, 725.)
C
For the simple majority vote requirement to apply to a measure
imposing a special tax, that measure must qualify as a bona fide citizens’
initiative. (Alliance San Diego, supra, 94 Cal.App.5th at p. 448.) However,
“the fact of a government official’s involvement in an initiative does not
necessarily convert a voter initiative into a local government initiative
24
without more.” (Ibid., fn. omitted.) Recent court decisions have addressed
the question of whether a tax initiative qualifies as a citizens’ initiative
rather than a government-sponsored measure.
In Proposition G, the defendant alleged that the school district
conceived and promoted a parcel tax initiative and therefore that initiative
required a two-thirds vote instead of a simple majority vote. (Proposition G,
supra, 66 Cal.App.5th at p. 1080.) The defendant argued that the school
district improperly appropriated the initiative and colluded with its teachers’
union and others to pass it. (Ibid.) Proposition G concluded that it was
irrelevant that the initiative’s proponents had not drafted the ballot
materials or personally paid the initiative’s filing fees because there was no
law that required its proponents to personally perform those acts. (Id. at
p. 1081.) It was undisputed that the initiative’s proponents were individuals
who signed the notice of intent, caused it to be published, and submitted
initiative petitions showing the required number of voter signatures for
qualification of the initiative on the ballot. (Ibid.) Proposition G noted that
there was no law precluding a governmental entity from publicly expressing
its opinion regarding the merits of a proposed ballot measure. (Ibid.) The
court concluded there was “nothing inherently sinister about the fact that the
[school district] and the [teachers’ union] supported this proposition.” (Ibid.)
Proposition G rejected the defendant’s “nebulous and legally unsupported
ground that the measure’s official proponents did not play a sufficiently
active role in securing its passage.” (Id. at p. 1082.) Accordingly, it affirmed
the trial court’s judgment validating the parcel tax initiative that had
received only a simple majority vote of the electorate. (Id. at p. 1083.)
In Howard Jarvis, a member of the city’s board of supervisors used his
supervisor title and city hall address in submitting various documents as a
25
proponent of an additional tax initiative. (Howard Jarvis, supra,
60 Cal.App.5th at p. 239.) Howard Jarvis rejected the argument by the
initiative’s challengers that the initiative required a two-thirds vote because
that elected official was involved in the initiative process. (Id. at pp. 239–
242.) In so doing, the court rejected the challengers’ reliance on Rider, supra,
1 Cal.4th 1, stating: “[W]e fail to see how the sponsorship and involvement of
the single official here gives rise to the inference that the [c]ity intentionally
circumvented Propositions 13 and 218 or effectively controlled the initiative.”
(Howard Jarvis, at p. 242.) The court further concluded that neither the text
nor the ballot materials for Propositions 13 and 218 showed an unambiguous
indication that the electors “intended to constrain the initiative power when
an official is involved in the initiative process.” (Ibid.) Accordingly, the court
affirmed the trial court’s judgment validating the tax initiative. (Id. at
p. 243.)
In Alameda, the court rejected the challengers’ argument that a sales
tax initiative was not a bona fide citizens’ initiative because a county
supervisor was one of five proponents of the initiative and her chief of staff
served as the principal officer of its campaign committee in his individual
capacity. (Alameda, supra, 99 Cal.App.5th at pp. 230, 234.) In particular,
the court rejected the argument that the initiative campaign was effectively
controlled by local government in intentional circumvention of Propositions
13 and 218 and therefore the initiative was a local government measure
subject to the two-thirds vote requirement. (Id. at p. 234.) Alameda
concluded that the initiative was a voter initiative, and not a board initiative,
because it was placed on the ballot by voter petition and approved by a
majority of voters. (Ibid.) Alameda further concluded that separation of
powers principles precluded it from declaring that the county’s board of
26
supervisors enacted a specific tax measure when, in fact, that board never
voted to enact it. (Ibid.)
D
In Alliance San Diego, we briefly referred to Rider in support for our
statement that “too much government involvement can mean an initiative is
really presented by local government.” (Alliance San Diego, supra, 94
Cal.App.5th at p. 448.) In Rider, the court addressed circumstances in which
the Legislature created an agency for the sole purpose of adopting an
ordinance, to be approved by a simple majority vote of San Diego County
voters, imposing a supplemental sales tax for the construction of San Diego
County justice facilities. (Rider, supra, 1 Cal.4th at p. 5.) The county
retained substantial control over the operations and expenditures of that
agency. (Id. at p. 9.) Rider addressed the question of whether that agency
was a “special district” within the meaning of article XIII A, section 4 of the
California Constitution, as adopted by Proposition 13, and thus its
supplemental sales tax ordinance would be subject to its two-thirds vote
requirement. (Rider, at pp. 5, 10.) Article XIII A, section 4 of the California
Constitution provides in relevant part: “Cities, counties and special districts,
by a two-thirds vote of the qualified electors of such district, may impose
special taxes on such district . . . .” (Italics added.) Rider stated that
constitutional provision “was intended to circumscribe the taxing power of
local government.” (Rider, at p. 6.) Rider stated that the record supported
the trial court’s finding that the agency “ ‘was created solely for the purpose
of avoiding the strictures of Proposition 13’ ” and the Court of Appeal’s
conclusion that the agency was “ ‘an empty shell’ used by the county to
exercise its own fiscal discretion.” (Id. at p. 8.)
27
Rider concluded that “the [a]gency must be deemed a ‘special district’
under [California Constitution, article XIII A,] section 4 . . . .” (Rider, supra,
1 Cal.4th at p. 10.) Rider stated that it was less concerned with the factual
support for the trial court’s finding of “ ‘purposeful circumvention’ ” by the
Legislature in creating the agency than with the probable intent of the
framers of Proposition 13. (Id. at p. 11.) Rider concluded the framers of
Proposition 13 intended the term “ ‘special district’ ” to include a “ ‘special
purpose’ ” district, like the agency in its case. (Ibid.) The court stated: “[W]e
hold that ‘special district’ would include any local taxing agency created to
raise funds for city or county purposes to replace revenues lost by reason of
the restrictions of Proposition 13.” (Ibid.)
Regarding future cases alleging intentional circumvention of
Proposition 13, Rider stated:
“[W]e believe that courts may infer such intent [to
circumvent Proposition 13] whenever the plaintiff has
proved the new tax agency is essentially controlled by one
or more cities or counties that otherwise would have had to
comply with the supermajority provision of section 4 [of
article XIII A of the California Constitution]. In
determining whether such control exists, a variety of
considerations may be relevant, including the presence or
absence of (1) substantial municipal control over agency
operations, revenues or expenditures, (2) municipal
ownership or control over agency property or facilities,
(3) coterminous physical boundaries, (4) common or
overlapping governing boards, (5) municipal involvement in
the creation or formation of the agency, and (6) agency
performance of functions customarily or historically
performed by municipalities and financed through levies of
property taxes.” (Rider, supra, 1 Cal.4th at pp. 11–12.)
Rider noted that “application of the ‘essential control’ test simply affords
ground for reasonably inferring an intent to circumvent Proposition 13.”
(Rider, supra, 1 Cal.4th at p. 12.) After concluding the agency was a “ ‘special
28
district’ ” within the meaning of article XIII A, section 4, of the California
Constitution, Rider further concluded the agency’s supplemental sales tax
was a “ ‘special tax[ ]’ ” within the meaning of that provision and therefore
the ordinance required a two-thirds vote under that provision instead of the
simple majority vote that it received. (Rider, at pp. 13–15.) Accordingly,
Rider reversed the Court of Appeal’s decision validating the agency’s tax levy.
(Id. at p. 16.)
E
Other courts have declined to apply Rider’s holding to cases involving
special taxes imposed by citizens’ initiatives. In Alameda, the court rejected
the challengers’ reliance on Rider, concluding that case was inapposite to its
case because Rider had “nothing to do with initiatives.” (Alameda, supra,
99 Cal.App.5th at p. 235.) Alameda stated:
“The Rider court considered whether Proposition 13
[citation] applied to a special tax imposed by a regional
financing agency. [Citation.] The case primarily turns on
whether the agency was a ‘special district’ under
article XIII A, section 4 [of the California Constitution].
The agency had been transparently designed to evade
Proposition 13 by taking advantage of an earlier Supreme
Court case that narrowly construed the term ‘special
district.’ [Citations.] The Rider court recognized that
[earlier case] had created a loophole, revisited the issue
[citation], and concluded that the ‘framers of
Proposition 13, and the voters who adopted it’ intended a
broader definition of ‘special district.’ [Citation.]”
(Alameda, at p. 235.)
29
Alameda distinguished Rider from the voter initiative case before it,
concluding:
“Rider is inapposite. Proposition 13 expressly applies to
special districts. [Citation.] So the Rider court’s holding—
that the special district at issue must comply with
Proposition 13—fits squarely within the language and
intent of the constitutional language. [Citation.] But our
case concerns a voter initiative, and the courts have
uniformly concluded that the language and intent of
Propositions 13 and 218 do not apply to voter initiatives.
[Citation.] Rider does not cast doubt on those cases, much
less give us license to invalidate an initiative. We thus
stand by our conclusion in Howard Jarvis: Rider does not
apply because ‘neither the text nor ballot materials provide
the requisite “unambiguous indication” that the enactors of
Propositions 13 and 218 intended to constrain the initiative
power when an official is involved in the initiative process.’
[Citations.]” (Alameda, at pp. 235–236.)
In concluding Rider was inapposite to the questions in its case, Alameda
“acknowledge[d] that our colleagues in the Fourth District, citing Rider,
recently suggested that ‘too much government involvement’ could potentially
‘convert a voter [tax] initiative into a local government initiative.’ (Alliance
San Diego, supra, 94 Cal.App.5th at pp. 447–448, 312 Cal.Rptr.3d 230.) For
the reasons stated above, we disagree.” (Alameda, supra, 99 Cal.App.5th at
p. 236.)
F
CTAN argues that the trial court erred by concluding Measure C was a
bona fide citizens’ initiative that was subject to only a simple majority vote
instead of a two-thirds vote. In particular, it argues the evidence showed
that the SDCCC is an “arm” of the City, members of SDCCC’s board officially
sponsored Measure C, and the policies advanced by Measure C are those of
30
the City. Based thereon, CTAN argues that Measure C was a City-sponsored
ballot measure enacting a special tax and therefore its authorization of bonds
required a two-thirds vote under the California Constitution and the
San Diego City Charter.
In support of its argument, CTAN cites Boling v. Public Employment
Relations Board (2018) 5 Cal.5th 898 (Boling). In Boling, the court stated:
“Allowing public officials to purposefully evade the meet-and-confer
requirements of the [Meyers-Milias-Brown Act] by officially sponsoring a
citizens’ initiative would seriously undermine the policies served by the
statute . . . .” (Id. at p. 918.) However, as we previously concluded in Alliance
San Diego, we do not find Boling helpful. (Alliance San Diego, supra, 94
Cal.App.5th at p. 448, fn. 16.) As we noted, Boling involved the question of
whether the City’s mayor had violated the Meyers-Milias-Brown Act (MMBA)
by not meeting and conferring with the employees’ unions before determining
a policy or course of action on issues affecting their terms and conditions of
employment (i.e., by proposing an initiative that would eliminate defined-
benefit pensions for new employees). (Ibid.) Boling concluded that the mayor
had violated the MMBA. (Boling, at pp. 918–919.) Therefore, Boling did not
address the question of whether the initiative proposed by the mayor
qualified as a citizens’ initiative and is therefore irrelevant to the instant
question of whether Measure C is a bona fide citizens’ initiative. (Alliance
San Diego, at p. 448, fn. 16.)
CTAN also cites Rider and asserts that it “support[s] the proposition
that a government agency (through its public officials) cannot ‘purposefully
evade’ the legal requirements that would otherwise be imposed on its
legislative process by proposing and enacting policy through a ‘citizens’
initiative’ (that brought it to fruition) unencumbered by those legal
31
requirements.” We believe CTAN reads Rider too broadly. As discussed ante,
Rider involved the question of whether an agency was a “special district”
within the meaning of article XIII A, section 4 of the California Constitution,
as adopted by Proposition 13, which would require the agency’s measure
proposing a supplemental sales tax ordinance to receive a two-thirds vote of
the electorate. (Rider, supra, 1 Cal.4th at pp. 5, 10.) Rider did not involve
the question of whether that measure qualified as a bona fide citizens’
initiative within the meaning of the California Constitution. (Cal. Const.,
art. II, §§ 1, 8, subd. (a), & 10, subd. (a).) Accordingly, we decline, as did
Alameda and Howard Jarvis, to apply Rider’s holding regarding special
districts under Proposition 13 to the entirely different question of whether a
tax measure is a bona fide citizens’ initiative. (Alameda, supra, 99
Cal.App.5th at pp. 235–236; Howard Jarvis, supra, 60 Cal.App.5th at p. 242.)
In declining to apply Rider to this case, we acknowledge that our
discussion of Rider in Alliance San Diego could be read as implicitly
supporting the application of Rider’s factors in determining whether a tax
initiative is substantially controlled by local government. (Alliance
San Diego, supra, 94 Cal.App.5th at p. 448.) We stated: “[T]oo much
government involvement can mean an initiative is really presented by the
local government.” (Ibid.) After citing Rider as an example, we stated:
“From these cases [i.e., Rider and Proposition G], we understand that a
government official’s involvement must demonstrate substantial control for
an initiative to be deemed a government action rather than a citizens’
initiative.”11 (Ibid.) Accordingly, we directed the trial court on remand to
11 Although we also discussed the holding in Proposition G, there is
nothing in the reasoning or holding of Proposition G that supports a
conclusion that a government official’s involvement may deem an initiative a
government action rather than a citizens’ initiative if that involvement shows
32
consider “whether Bradford’s involvement suggests her government agency
retained substantial control over the initiative process or otherwise acted in a
way that shows Measure C was not a ‘bona fide citizens’ initiative.’ ” (Ibid.)
However, on further reflection, we now agree with, and adopt, the
reasoning in Alameda and Howard Jarvis that Rider is inapposite to the
instant question of whether a tax measure is a bona fide citizens’ initiative
and therefore decline to hold that its “substantial control” factors apply to
this case. We believe that any such extension of Rider must come from the
voters or, at least, a decision of our Supreme Court. Accordingly, we conclude
that Rider does not support CTAN’s argument that Measure C is not a bona
fide citizens’ initiative.
Here, the individual proponents of Measure C published a notice of
intent to circulate an initiative petition, filed that notice with the city clerk,
and subsequently submitted petitions signed by the requisite number of city
voters (i.e., signatures of 71,646 registered voters). Measure C was thereafter
placed on the ballot for the March 2020 election and received 65.24 percent of
the votes. Given that all of those requisite steps for a citizens’ initiative were
satisfied (which CTAN does not dispute), nothing more was required for
Measure C to be considered a bona fide citizens’ initiative that required only
a simple majority vote. (Cf. Alameda, supra, 99 Cal.App.5th at pp. 230, 234;
Proposition G, supra, 66 Cal.App.5th at pp. 1080–1082; Howard Jarvis,
supra, 60 Cal.App.5th at p. 239 [member of city’s board of supervisors was
proponent of initiative, submitted notice of intent to circulate petition, turned
substantial control of that initiative. (Proposition G, supra, 66 Cal.App.5th at
p. 1081 [stating no law precluded governmental entity from publicly
expressing its opinion regarding merits of proposed ballot measure and
noting there was “nothing inherently sinister about the fact that the [school
district] and the [teachers’ union] supported this proposition”].)
33
in signed initiative petition pages, signed ballot arguments in favor of
initiative, and used his supervisor title and city hall address].) Contrary to
CTAN’s assertion, support of a citizens’ initiative by a local government
entity or local government official does not convert that citizens’ initiative
into a government-sponsored measure. (Alliance San Diego, 94 Cal.App.5th
at p. 448; Proposition G, at p. 1081.) As the Yes Committee notes,
government officials, such as SDCCC board members Bradford and Kim,
retain First Amendment rights, including the right to advocate for an
initiative and its adoption. (City of Santa Monica v. Stewart (2005) 126
Cal.App.4th 43, 73; Greisen v. Hanken (9th Cir. 2019) 925 F.3d 1097, 1113.)
Accordingly, we conclude that the trial court correctly found that Measure C
is a bona fide citizens’ initiative.
G
Nevertheless, assuming arguendo a tax initiative that is substantially
controlled by a local government entity or local government officials must be
deemed a government-sponsored measure subject to the two-thirds vote
requirement, we conclude that CTAN failed to carry its burden to show the
City or SDCCC (a nonprofit corporation controlled by the City) substantially
controlled Measure C, thereby disqualifying it as a bona fide citizens’
initiative. In particular, our independent review of the undisputed evidence
shows that none of the Rider factors apply to show such substantial control.
On remand, the trial court granted the motion filed by the City and the
Yes Committee to quash deposition subpoenas served by CTAN on Bradford
and Kim.12 The court then proceeded with a bench trial on the
12 The court also sustained the Yes Committee’s objections to certain
hearsay evidence, consisting of various newspaper articles purportedly
showing the support of Measure C by government officials (i.e., Bradford and
Kim). Because that hearsay evidence was excluded from the evidence
34
administrative record. The evidence at trial showed, among other things,
that Bradford was one of five proponents of Measure C. As a proponent of
Measure C, Bradford represented herself as the executive vice president and
chief operating officer of the San Diego Regional Chamber of Commerce, her
employer. That chamber of commerce was a primary sponsor of Measure C.
Although Bradford was also an unpaid volunteer member of SDCCC’s board,
there is no evidence showing that she openly cited that board membership as
a proponent and supporter of Measure C. As to Kim, there is no evidence in
the record showing that she was involved in proposing Measure C. Rather, it
shows that she, at most, was also a member of SDCCC’s board and voted in
favor of a SDCCC board resolution supporting Measure C.
Contrary to CTAN’s conclusory assertion, the described involvement of
Bradford and Kim in supporting Measure C while they were members of
SDCCC’s board does not, in any sense of the term, constitute their
“substantial control” over Measure C, much less substantial control that
reasonably could be attributable to SDCCC or the City. Likewise, SDCCC’s
only action was a resolution passed by its board expressing its support of
Measure C, which action alone cannot constitute “substantial control” over
that initiative. In particular, we conclude that none of the six Rider factors
described ante apply here based on the evidence of the involvement of
Bradford, Kim, or SDCCC in proposing and/or supporting Measure C.13
(Rider, supra, 1 Cal.4th at pp. 11–12.)
considered by the trial court, we do not address or consider it in deciding the
instant issue.
13 CTAN also cites evidence showing that in 2004, 2011, and 2016, the
City proposed various ballot measures that would have increased the
transient occupancy tax, but those measures failed to receive the requisite
number of votes. Contrary to CTAN’s assertion, those previous unsuccessful
35
CTAN does not cite any apposite case law or other authority showing
that the City or SDCCC had “substantial control” over Measure C based on
the record in this case. As discussed ante, government entities and
government officials are not precluded from expressing their opinions
regarding the merits of proposed ballot measures. (See, e.g., Proposition G,
supra, 66 Cal.App.5th at p. 1081.) Furthermore, we note that the
involvement of Bradford and Kim in supporting Measure C was far less than
the involvement in Howard Jarvis of the member of the city’s board of
supervisors who used his supervisor title and city hall address in submitting
various documents as a proponent of an additional tax initiative. (Howard
Jarvis, supra, 60 Cal.App.5th at p. 239.) In its circumstances, Howard Jarvis
concluded that involvement of the city’s board member did not support a
finding that the “[c]ity intentionally circumvented Propositions 13 and 218 or
effectively controlled the initiative.” (Id. at p. 242; cf. Alameda, supra, 99
Cal.App.5th at pp. 230, 234; Proposition G, at pp. 1080–1082.) Accordingly,
we conclude that the trial court correctly found that CTAN did not carry its
burden to show that the City had “substantial control” over Measure C and
therefore it did not qualify as a bona fide citizens’ initiative.
V
CTAN Has Not Carried Its Burden on Appeal to Show the Trial Court
Prejudicially Erred by Excluding Certain Evidence
CTAN contends that the trial court erred by excluding certain hearsay
evidence that purportedly would show sponsorship and/or support of
Measure C by Bradford and Kim. As explained post, we conclude that CTAN
fails to show the court abused its discretion in excluding that hearsay
attempts by the City to raise taxes do not show that Measure C was a
government-sponsored measure instead of a bona fide citizens’ initiative.
36
evidence and also fails to argue, much less show, that the purported
evidentiary error was prejudicial.
A
Evidence Code section 1200, subdivision (b) provides that hearsay
evidence is inadmissible, except as provided by law. Hearsay evidence is
evidence of an out-of-court statement that is offered to prove the truth of its
content. (People v. Sanchez (2016) 63 Cal.4th 665, 674.) Evidence Code
section 1220 provides an exception to that hearsay rule when the hearsay
evidence is offered against a party to the action, whether in his or her
individual or representative capacity. Evidence Code section 1250,
subdivision (a)(2) provides another exception to the hearsay rule when the
hearsay evidence is offered to prove or explain conduct of the declarant and is
“a statement of the declarant’s then existing state of mind, emotion, or
physical sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health).” Evidence Code section 1251,
subdivision (a) provides a similar exception to the hearsay rule when the
declarant is unavailable as a witness and the statements were of the
declarant’s state of mind, emotion, or physical sensation at a time prior to the
statement, but only to prove that state of mind, emotion, or physical
sensation.
“A trial court’s exercise of discretion in admitting or excluding evidence
is reviewable for abuse [citation] and will not be disturbed except on a
showing that the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) In
particular, we review a trial court’s decision to exclude hearsay evidence for
37
abuse of discretion. (Doe v. Software ONE Inc. (2022) 85 Cal.App.5th 98, 104,
109.)
“Claims of evidentiary error under California law are reviewed for
prejudice applying the ‘miscarriage of justice’ or ‘reasonably probable’
harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299
P.2d 243, that is embodied in article VI, section 13 of the California
Constitution. Under the Watson harmless error standard, it is the burden of
appellants to show that it is reasonably probable that they would have
received a more favorable result at trial had the error not occurred.
[Citation.]” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447 (Christ).)
B
On remand, the trial court sustained the Yes Committee’s objections to
hearsay evidence offered by CTAN (i.e., five newspaper articles purportedly
showing involvement of Bradford and Kim in sponsoring and/or supporting
Measure C). CTAN argues the trial court erred in excluding that hearsay
evidence.
In a sole conclusory sentence, CTAN argues that the newspaper articles
were admissible pursuant to an exception to the hearsay rule because
Bradford and Kim were parties to the instant action or were authorized by a
party to the action to make those statements on behalf of that party. We
reject that argument. Neither Bradford nor Kim is a named party to this
action, nor did CTAN show that their statements were authorized by a party
(i.e., the City or the Yes Committee) to this action. Based on the record, we
conclude that the trial court did not abuse its discretion by finding Bradford
and Kim are nonparties to this action and did not act in a representative
capacity on behalf of a party to this action within the meaning of Evidence
Code section 1220.
38
Also, again in a sole conclusory sentence, CTAN argues the hearsay
statements made by Bradford and Kim tend to show their state of mind,
intent, plan, motive, and/or design in sponsoring and/or supporting
Measure C and were therefore admissible pursuant to Evidence Code
section 1250, subdivision (a)(2) and/or Evidence Code section 1251,
subdivision (a) because they purportedly were unavailable to testify as a
witness. However, CTAN did not raise that argument at trial and therefore
forfeited that argument. (Cf. Kern County Dept. of Child Support Services v.
Camacho (2012) 209 Cal.App.4th 1028, 1038.) Nevertheless, CTAN does not
show that either Bradford or Kim was unavailable to testify as a witness or
that the hearsay evidence was offered to prove or explain their conduct.
(Evid. Code, §§ 1250, subd. (a)(2), 1251, subd. (a).)
Importantly, we note that CTAN’s arguments are wholly conclusory.
An appellant forfeits contentions that are conclusory and supported only by
counsel’s opinion or argument without citation to any recognized authority.
(Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 (Ewald);
Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.) Also, CTAN has not
presented any substantive legal analysis showing that the trial court abused
its discretion by excluding the hearsay evidence. “Where a point is merely
asserted by [appellant] without any [substantive] argument of or authority
for its proposition, it is deemed to be without foundation and requires no
discussion.” (People v. Ham (1970) 7 Cal.App.3d 768, 783 (Ham).) Because
CTAN makes only conclusory arguments and does not make any substantive
legal argument showing the trial court abused its discretion by excluding the
hearsay evidence, we conclude that CTAN has both forfeited that contention
and also failed to carry its burden on appeal to show the court erred.
39
Accordingly, we conclude that the trial court did not abuse its discretion by
excluding the hearsay evidence.
C
Nevertheless, assuming arguendo the trial court erred by excluding the
hearsay evidence, we conclude CTAN has forfeited any argument that the
error was prejudicial because it does not make any argument that the error
was prejudicial or any substantive legal argument on the issue of prejudicial
error. (Ewald, supra, 13 Cal.App.5th at p. 948; Ham, supra, 7 Cal.App.3d at
p. 783.) In any event, CTAN has wholly failed to carry its burden on appeal
to show that it is reasonably probable that it would have received a more
favorable result at trial had the error not occurred. (Christ, supra,
2 Cal.App.5th at p. 447.) Accordingly, we conclude that CTAN has not shown
the purported evidentiary error was prejudicial and requires reversal of the
judgment.14
14 Because we dispose of CTAN’s appeal on the grounds discussed ante,
we need not, and do not, address the argument made by the Yes Committee
in its respondent’s brief that CTAN’s invalidation claim improperly sought an
unavailable remedy.
40
DISPOSITION
The judgment is affirmed. The Yes Committee shall recover its costs on
appeal.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
41