Filed 12/14/05 Mancini v. County of Santa Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Pro se appellant John Mancini appeals from a judgment entered on December 15, 2004, in which the court below dismissed his action and denied any relief. For the reasons outlined in this opinion, we affirm.

Facts and Proceedings Below

In June 2002, the Santa Cruz County Board of Supervisors adopted Santa Cruz County Ordinance 4674. Ordinance 4674 added Chapter 4.28 to the Santa Cruz County Code to establish an Emergency Response Fee (hereafter the 911 fee) to finance the County's 911 emergency communication system.

Santa Cruz County Code Chapter 4.28 requires subscribers to telephone land-lines in the unincorporated areas of Santa Cruz County to pay a fee for the service and "benefit" they receive from the 911 communication system.[1] (Santa Cruz County Code, Chapter 4.28, §§ 4.28.010 and 4.28.020.) Telephone service subscribers pay $1.47 per month per access line or $11.03 per trunk line. (§§ 4.28.010(B), 4.28.060).[2]

Sections 4.28.010(C) and (D) and 4.28.020 reflect that the Board of Supervisors determined that the 911 fee was the most practical and equitable revenue mechanism to finance the acquisition and construction of land, equipment, software, and facilities that are needed to provide and operate an adequate and reliable 911 communication system. Furthermore, the 911 fee is intended to provide revenue for "eligible" projects and "eligible" operating costs. It was not enacted for regulatory or general revenue purposes.

The County Code requires the Auditor/Controller to deposit the fee revenues in the 911 Emergency Response Fund. (§§ 4.28.010(D), 4.28.040(D) and 4.28.090.) Liability for payment of the 911 fee rests with the telephone service subscriber. Any person owing money to the County is subject to an action by the County for recovery of the amounts owed on the property to which the telephone service is provided.[3] Telephone subscribers who contend that the fee has been erroneously or illegally collected or received by the County may file a claim for a refund. (§§ 4.28.100-4.28.150)

On July 26, 2004, appellant filed a pleading in Santa Cruz County Superior Court alleging that the 911 fee is a property related fee or special tax subject to the provisions of Proposition 218, which require approval by a two-thirds vote of the electorate. Appellant sought a writ of mandate commanding the County to cease collection of the 911 fee, to obtain a refund of all funds collected, to obtain declaratory and injunctive relief, and damages under Civil Code section 52 for civil rights violations.

On September 8, 2004, County filed a demurrer. On December 15, 2004, Judge Atack issued an order sustaining County's demurrer on the ground that the complaint failed to properly state a cause of action for violations of Civil Code sections 52 and 52.1. The court denied the petition for writ of mandate and other requested relief, finding that the 911 fee is not a property related fee, or a special tax. Accordingly, it is not subject to the voter approval requirements of Proposition 218.

On February 7, 2005, appellant filed this appeal.

On appeal, appellant contends that the court erred in finding that the 911 fee is not a property related fee or special tax. Furthermore, the court erred in sustaining County's demurrer to the cause of action for violations of Civil Code sections 52 and 52.1. We affirm.

Discussion

Before we address appellant's contention of appeal, briefly, we review some historical background pertinent to this case.

California Constitution article XIII A, commonly known as the Jarvis-Gann Property Tax Initiative or Proposition 13 (Cal. Const., art. XIII A), was added to the state Constitution by voters in June 1978. (Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, 872.) "The initiative's purpose was to assure effective real property tax relief by means of an 'interlocking "package" ' consisting of a real property tax rate limitation (art. XIII A, § 1), a real property assessment limitation (art. XIII A, § 2), a restriction on state taxes (art. XIII A, § 3), and a restriction on local taxes (art. XIII A, § 4).' [Citations.]" (Ibid.)

Pertinent here, section 4 of article XIII A of the state Constitution imposes restrictions on local entities as follows: " 'Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.' (Italics added.)" (Sinclair Paint Co. v. State Bd. of Equalization, supra, 15 Cal.4th at p. 873.)

As our Supreme Court explained in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231, "since any tax savings resulting from the operation of sections 1 and 2 [of article XIII A] could be withdrawn or depleted by additional or increased state or local levies of other than property taxes, sections 3 and 4 combine to place restrictions upon the imposition of such taxes."

"Proposition 218, the 'Right to Vote on Taxes Act,' was adopted by the voters in November 1996. The stated purpose of Proposition 218 was to 'protect[ ] taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.' [Citation.] " (Howard Jarvis Taxpayers Ass'n. v. City of San Diego (1999) 72 Cal.App.4th 230, 235.) "Proposition 218 added articles XIII C and XIII D to the California Constitution." (Howard Jarvis Taxpayers Ass'n v. City of Fresno (2005) 127 Cal.App.4th 914, 918.)

Article XIII C, section 2, subdivision (a)[4] provides that all taxes imposed by a local government "shall be deemed to be either general taxes or special taxes." Under Proposition 218, the imposition or increase of a special tax must be approved by a two-thirds vote of the electorate. (Howard Jarvis Taxpayers Assn. v. City of Roseville (2003) 106 Cal.App.4th 1178, 1185-1186, Cal. Const. Art XIII C, § 2, subd. (d) ["No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote]" (italics added).)

Similarly, article XIII D requires notice of a proposed property-related fee or charge and a public hearing. If a majority of the affected owners submit written protests, the fee may not be imposed. (Cal. Const. art. XIII D, § 6, subd. (a)(2).) Moreover, article XIII D section 6, subdivision (c) states: "Except for fees or charges for sewer, water, and refuse collection services, no property related fee or charge shall be imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area."

Article XIII D, section 2, subdivision (e) defines a "fee" or "charge" as a levy imposed "upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service." In turn, Article XIII D, section 2, subdivision (h) defines "property-related service" as "a public service having a direct relationship to property ownership."

With this background in mind, we turn to appellant's argument.

At the outset, we note that appellant's argument is difficult to follow. However, we glean from his brief that the gist of his argument is that the 911 fee is either a "property-related fee" or "a special tax" both of which, he argues, need approval by a two-thirds majority vote of the electorate.

Standard of Review

In reviewing the trial court's ruling on a writ of mandate, ordinarily, we are confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. (Abbate v. County of Santa Clara (2001) 91 Cal.App.4th 1231, 1239; Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700.) More specifically, the trial court's findings as to foundational facts are conclusive if supported by substantial evidence. (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 996.) However, we make our own determination when the case involves resolution of questions of law where the facts are undisputed. (Saathoff v. City of San Diego, supra, 35 Cal.App.4th at p.700.) In other words, in reviewing the denial of a petition for a writ of mandamus, we review questions of law de novo. (Fry v. Saenz (2002) 98 Cal.App.4th 256, 262.)

Thus, whether the 911 fee is a special tax or a property related fee is question of law for this court to decide on independent review of the facts. (Sinclair Paint Co. v. State Bd. of Equalization, supra, 15 Cal.4th at p. 874.)

Special Tax

Appellant seems to argue that the 911 fee is a special tax. He arrives at this conclusion by a process of elimination. First, he asserts that it is not a fee. Second, he asserts that it is not a general tax. Finally, he asserts that if it is not either of the foregoing, it must be a special tax.

In Sinclair Paint Co. v. State Bd. of Equalization, supra, 15 Cal.4th at page 874, our Supreme Court recognized that " 'tax' has no fixed meaning, and that the distinction between taxes and fees is frequently 'blurred' taking on different meanings in different contexts. [Citations.] In general, taxes are imposed for revenue purposes, rather than in return for a specific benefit conferred or privilege granted. [Citations.] Most taxes are compulsory rather than imposed in response to a voluntary decision to develop or to seek other government benefits or privileges. [Citations.] But compulsory fees may be deemed legitimate fees rather than taxes. [Citation.]"

"Under Proposition 218, a special tax is any tax imposed for specific purposes, even if the proceeds are placed into a general fund. (Cal. Const., art. XIII C, § 1, subd. (d.))" (Howard Jarvis Taxpayers Assn. v. City of Roseville, supra, 106 Cal.App.4th at p. 1185.) Thus, "a tax is special whenever expenditure of its revenues is limited to specific purposes; this is true even though there may be multiple specific purposes for which revenues may be spent. [Citation.]" (Ibid.) Here, as County concedes, the revenues are placed "into a specific fund dedicated to payment for costs associated with the 911 communication system."

County asserts, however, that Government Code section 50076 provides that a special tax "does not include 'any fee which does not exceed the reasonable cost of providing the service or regulatory activity for which the fee is charged and which is not levied for general purposes.' "

County points out that the amount of money assessed against those having access to the 911 service bears a reasonable relationship to the cost of providing access to the 911 communication system.[5]

Appellant counters that County has not produced any evidence that the 911 fee does not exceed the cost of providing the service. Essentially, without citation to authority he asserts that the state collects a tax, which it sends to local governments, to finance the 911-system.

We disagree with appellant that County failed to produce evidence that the revenues raised from the 911 fee do not exceed the cost of providing the service. County presented evidence that 91percent of the cost of providing the 911 services amounted to $1,421,352.00. In fiscal year 2003-2004 the County collected only $1,516,079. This figure represents only 97 percent of the cost of the providing the 911 services.[6] Accordingly, we reject appellant's contention that County failed to present evidence that the revenues raised from the 911 fee do not exceed the cost of providing the service.

Appellant contends that the definition of a "special tax" in Government Code section 50076 applies only to Proposition 13 (Article XIII A) and not to Proposition 218 (Articles XIII C and XIII D). Appellant seems to argue that because Government Code section 50076 appears in Article 3.5 of that code, and Government Code section 50076's definition of special tax states "As used in this article . . . ," it necessarily applies only to the provisions of Article XIII A.

"As explained in Howard Jarvis [Tax Payers Assoc. v. City of Riverside (1999)] 73 Cal.App.4th 679, Proposition 218 is Proposition 13's progeny. Accordingly, it must be construed in that context. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301 . . . .) Specifically, because Proposition 218 was designed to close government-devised loopholes in Proposition 13, the intent and purpose of the latter informs our interpretation of the former. Proposition 13 was directed at taxes imposed on property owners, in particular homeowners. The text of Proposition 218, the ballot arguments (both in favor and against), the Legislative Analyst's analysis, and the annotations of the Howard Jarvis Taxpayers Association, which drafted Proposition 218, all focus on exactions, whether they are called taxes, fees, or charges, that are directly associated with property ownership." (Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 838-839.)

"The Legislative Analyst's analysis, printed in the November 1996 ballot pamphlet, is illustrative. It explained that Proposition 218 'would constrain local governments' ability to impose fees, assessments, and taxes,' meaning 'property-related' fees, including fees for water, sewer and refuse collection, but excluding gas and electricity charges (see Cal. Const., art. XIII D, § 3, subd. (b)) and development fees (see id., § 1, subd. (b)). [Citation.]" (Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles, supra, 24 Cal.4th at p. 839.)

"The ballot arguments for Proposition 218 are also illustrative. 'Proposition 218 guarantees your right to vote on local tax increases-even when they are called something else, like "assessments" or "fees" and imposed on homeowners.' [Citation.] 'After voters passed Proposition 13, politicians created a loophole in the law that allows them to raise taxes without voter approval by calling taxes "assessments" and "fees." ' (Ibid.) 'There are now over 5,000 local districts which can impose fees and assessments without the consent of local voters. Special districts have increased assessments by over 2400% over 15 years. Likewise, cities have increased utility taxes 415% and raised benefit assessments 976%, a ten-fold increase.' (Ibid.) 'To confirm the impact of fees and assessments on you, look at your property tax bill. You will see a growing list of assessments imposed without voter approval. The list will grow even longer unless Proposition 218 passes.' (Ibid.)" (Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles, supra, 24 Cal.4th at p. 839.) "The ballot arguments identify what was perhaps the drafter's main concern: tax increases disguised via euphemistic relabeling as 'fees,' 'charges,' or 'assessments.' " (Ibid.)

"Section 2 of Proposition 218 stated the measure's purpose. 'The people of the State of California hereby find and declare that Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases. However, local governments have subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate the purposes of voter approval for tax increases, but also threaten the economic security of all Californians and the California economy itself. This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.' [Citation.]" (Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles, supra, 24 Cal.4th at p. 838.)

We find nothing in the history or purpose of Proposition 218 that leads us to the conclusion that Proposition 218 changed the definition of "special tax" as found in Government Code section 50076. Accordingly, we reject appellant's assertion that Government Code section 50076 no longer applies to Proposition 218 cases.

Consequently, we conclude that because the revenues raised by the 911 fee do not exceed the cost of the service, the 911 fee is not a special tax.

Property-related Fee

In fairness to appellant, we cannot deny that the text of article XIII D does not limit its scope to taxes and taxpayers. Article XIII D places restrictions on any levy imposed "upon a parcel or upon a person as an incident of property ownership." (Art. XIII D, § 2, subd. (e).)

Appellant argues that the 911 fee is a property-related fee. Relying on Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409 (Richmond), he asserts that the 911 "fee comes within the definition of a property-related fee as explained by the California Supreme Court in the recent case of Richmond, supra, 32 Cal.4th 409."

Appellant cites to the following paragraph to support his assertion: "Rather, we conclude that a water service fee is a fee or charge under Article XIII D if , but only if, it is imposed 'upon a person as an incident of property ownership.' (Art XIII D § 2, subd. (e).) A fee for ongoing water service through an existing connection is imposed as an incident of property ownership' because it requires nothing other than the normal ownership and use of property." (Richmond, supra, 32 Cal.4th at p. 427.)

Appellant fails to acknowledge, however, that in Richmond, the California Supreme Court commented in dicta: "[W]e agree that water service fees, being fees for property-related services, may be fees or charges within the meaning of article XIII D. But we do not agree that all water service charges are necessarily subject to the restrictions that article XIII D imposes on fees and charges." (Richmond, supra, 32 Cal.4th at pp. 427-428.)

Appellant argues that the 911 fee is charged to non-exempt existing landline phone service through existing connections and requires nothing other than the normal use of property to become a levy. Furthermore, tenants are considered property owners under Article XIII D, section 2, subdivision (g) where they are required to pay the assessment, fee or charge.

However, again, appellant fails to acknowledge the following language in Richmond: "We agree that a connection charge, because it is not imposed 'as an incident of property ownership' (art. XIII D, § 2, subd. (e)), is not a fee or charge under article XIII D. A connection fee is not imposed simply by virtue of property ownership, but instead it is imposed as an incident of the voluntary act of the property owner in applying for a service connection." (Richmond v. Shasta Community Service District, supra, 32 Cal.4th at p. 426.)

The issue in Richmond was whether water connection charges, including a charge for a fire suppression component of the connection fee, were fees imposed as an incident of property ownership so as to be within the parameters of Proposition 218. (Richmond, supra, 32 Cal.4th at p. 415.)

Article XIII D provides: "No fee or charge may be imposed for general governmental services including, but not limited to, police, fire, ambulance or library services, where the service is available to the public at large in substantially the same manner as it is to property owners." (Art. XIII D, § 6, subd. (b)(5), italics added.) County concedes that the 911 fee is used "to finance the existence, improvement, and performance of the County's 911 emergency communications system." Accordingly, the 911 fee is "imposed for general governmental services" within the meaning of section 6, subdivision (b)(5), of article XIII D, and it is prohibited by that provision if it satisfies article XIII D's definition of a "fee or charge."

Article XIII D defines a "fee" or "charge" as "any levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service." (Id., § 2, subd. (e), italics added.) It defines "property-related service" as "a public service having a direct relationship to property ownership." (Id., § 2, subd. (h).)

The 911 fee at issue in this case is more like the water connection charge found in Richmond to fall outside the confines of Proposition 218. The 911 fee is not imposed simply by virtue of property ownership. It is imposed as an incident of the voluntary act of having a landline. The fee is not imposed "upon a parcel or upon a person as an incident of property ownership." Rather, it is imposed on those persons who voluntarily apply for telephone service.

To paraphrase our Supreme Court: "The [County] does not impose the fee on such persons 'as an incident of property ownership' but instead as an incident of their voluntary decisions to request [telephone] service." (Richmond, supra, 32 Cal.4th at p. 426.)

Just as in Richmond, if a person fails to pay the fee, the County does not collect it by levying it upon a person's property. Furthermore, the County cannot comply with article XIII D's requirement that the County identify the parcels affected by the 911 fee, because it cannot determine in advance who will subscribe to telephone service.[7]

Consequently, because the 911 fee is not a property related fee or property related service it is not subject to Proposition 218's requirement of approval by two-thirds majority vote of the electorate.

Civil Rights Issues

Appellant argues that the court erred in sustaining County's demurrer to appellant's fifth cause of action for violation of Civil Code sections 52 and 52.1.

Background

Appellant's complaint incorporated by reference the County's Emergency Response Fee ordinance, including the refund provisions contained in Santa Cruz County Code section 4.28.140 (B). Appellant claimed that County's ordinance did not provide a refund remedy unless the fees were paid directly to the County Treasurer/Tax Collector. Based on appellant's reading of section 4.28.140, appellant claimed that his civil rights were violated because he was deprived of the protection of the Fifth Amendment, "which only allows involuntary taxes to be levied under valid laws or for [sic] allows refunds when the taxes are found to be illegal."[8] The complaint alleged that the defendants[9] acted together in the course of their employment and as individuals to deprive appellant of his civil rights to be free from the illegal taking of his money without due process of law.

In ruling on County's demurrer, the trial court found that appellant had "fail[ed] to state a cause of action." The court found that there were no facts in the complaint indicating that the individual defendants took any action concerning the 911 fee in their capacity as individuals that would subject them to liability in their individual capacity. Furthermore, relying on Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 843, the court found that appellant had failed to properly state a claim under Civil Code section 52.1 because appellant had not alleged that his rights had been interfered with by use of violence or intimidation by threat of violence or coercion.

"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Furthermore, when a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

"Civil Code section 52.1, subdivision (a), provides that if a person interferes, or attempts to interfere, by threats, intimidation, or coercion, with the exercise or enjoyment of the constitutional or statutory rights of 'any individual or individuals,' the Attorney General, or any district or city attorney, may bring a civil action for equitable or injunctive relief. Subdivision (b) allows '[a]ny individual' so interfered with to sue for damages." (Venegas v.County of Los Angeles, supra, 32 Cal.4th 820, 841.)

Civil Code section 52.1 requires "an attempted or completed act of interference with a legal right, accompanied by a form of coercion." (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334, italics added.) Since appellant's complaint is completely devoid of any such allegation, and because appellant has not met his burden of proving the defect can be cured by an amendment, we conclude that the trial court was correct in dismissing appellant's claim under Civil Code section 52.1[10]

Disposition

The judgment is affirmed.

_____________________________

ELIA, Acting P. J.

WE CONCUR:

_______________________________________

BAMATTRE-MANOUKIAN, J.

_______________________________________

DUFFY, J.

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[1] There are some exceptions for lifeline customers and coin-operated telephones. In addition, the 911 fee does not apply to cell phone users. (§§ 4.28.020, 4.28.050.)

[2] Unless noted, all undesignated section references are to the Santa Cruz County Code, Chapter 4.28.

[3] We note that nothing in Chapter 4.28 authorizes the County to place a lien for the amount owed on the property to which the telephone service is provided.

[4] All undesignated article references are to the California Constitution.

[5] In concluding that the 911 fee was not a special tax, the trial court found that the 911 fee seemed "to be reasonably related to the cost of providing the 911 service and the money is used exclusively for that purpose . . . ." The declaration of Michael Dever, the Emergency Service Administrator for the County of Santa Cruz, states that the amount of the fee is calculated based on the phone company's estimates of the number of access and trunk lines in the unincorporated area of Santa Cruz County. The estimated number of access lines and trunk lines was then reduced to "eligible line units." Exempt line units were then subtracted from that number. The resulting number was then used to divide $1,421,352.00 (a figure that represents 91percent of the County's share of the cost in providing and maintaining the 911-emergency communication system on a yearly basis) to reach the cost of each eligible line unit. As a result, each access line was charged $1.47 and each trunk line $11.03.)

[6] We reach this figure by mathematical calculation. If $1,421,352.00 = 91 percent, then $1,561,925 = 100 percent of the cost. Ergo, $1,516,079 = 97 percent of the cost.

[7] Article XIII D requires the agency to identify "[t]he parcels upon which a fee or charge is proposed for imposition." (Article XIII D § 6, subd. (a)(1).) It is impossible for the County to comply with this requirement. The impossibility of compliance strongly suggests that the 911 fee is not subject to article XIII D's restrictions on property-related fees. (Richmond, supra, 32 Cal.4th at p. 428.)

[8] Appellant reasoned that because section 4.28.140 only allowed a refund if the fee was paid directly to the Treasurer/Tax Collector, the County was taking the money without due process of law. We point out that appellant has misread section 4.28.140.

[9] Appellant named the members of the Board of Supervisors, plus Gary Knutson, Santa Cruz County's Auditor/Controller, Suzanne Young, County's Tax Collector and Dana McRae, County Counsel.

[10] Furthermore, we note that appellant's civil rights claim is based on a flawed reading of Santa Cruz County Code Section 4.28.140(B). Contrary to appellant's assertion that a refund can be claimed only if the 911 fee was paid directly to the County, a refund can be claimed "when the telephone subscriber, having paid the fee to the service supplier, establishes to the satisfaction of the Treasurer-Tax Collector that the telephone subscriber has been unable to obtain a refund from the service supplier who collected the fee." (§ 4.28.140(B).)