FACTUAL AND PROCEDURAL BACKGROUND
Riverside operates Riverside Public Utilities (RPU), an electric utility created by the city charter. The charter allows Riverside to transfer annually up to 11.5 percent of RPU's gross operating revenues from its electric utility reserves to its general fund (electric general fund transfer) for use for general governmental purposes. The charter does not define "gross operating revenues" other than to state they must be "reported upon by independent public auditors."
Riverside owns several high-voltage transmission lines that carry power outside the region. In 2002, Riverside transferred the operation of these lines to the California Independent System Operator (CAISO), but retained ownership.
A. Verified Petition for Writ of Mandate
On April 28, 2016, Webb filed a verified petition for writ of mandate in superior court alleging Riverside's inclusion of the full TRR income as part of its gross operating revenue constitutes an imposition of taxes in violation of California Constitution
The court also addressed the alleged tax increase: "Although Petitioner alleges that [s]he is actually challenging the transfer of funds and not challenging any changing of rate or charge, the challenge is being brought pursuant to Proposition 26 and 62 which.... would ultimately require a 'tax' through the changing of a rate or charge to the electric utility ratepayer."
Webb filed a verified first amended petition that removed the terms "rate," "rate increase," and "charge." Riverside demurred again, and the trial court granted the motion with leave to amend so Webb could explain the omissions. The court also noted a contradiction in the pleadings: "It appears Petitioner is trying to allege that the 'transfer' [of funds from the electric reserves to the general fund] was 'exaction' of a 'tax.' Although[ ] these allegations may be sufficient to allege that the transfer of the increased [electric general fund transfer] was a 'tax' under Prop[osition] 26's definition, which required voter approval, the First Amended Petition does not explain the omission of prior allegations, which allege an 'increase in the tax imposed upon electric utility ratepayers' and characterized the [electric general fund transfer] as inflating 'RPU electric rates ... [and overcharging all RPU customers] ....' [citation]."
C. Verified Second Amended Petition for Writ of Mandate
Webb filed a verified second amended petition. This petition also omitted references to the word "rate" or "charge." Webb alleged section 10004.5"requires payment by ratepayers through an increase in a Rate Schedule for an electric commodity or service, neither of which occurred here." To explain why section 10004.5 did not apply, Webb further alleged "the amount imposed on ratepayers was not for an 'electric commodity or service,' but rather 'to support general City Services.' " She specified the transfer of TRR funds improperly exacted utility reserve funds for general purpose uses and did not provide a commensurate service or commodity. She alleged the electric general fund transfer "inflates RPU rates and overcharges customers." Webb wrote she removed "rate," "charge," and other "unnecessary extraneous language," because
Riverside demurred to the verified second amended petition on the same bases as it had earlier. Riverside also argued the verified first and second amended pleadings were sham amendments because they contradicted allegations in the original petition. The court granted the demurrer without leave to amend. In its ruling, the court explained: "Petitioner has not abandoned the ordinary meaning of the terms 'rate' or 'charge,' which triggers [ section] 10004.5, as the court previously determined. Petitioner's failure to sufficiently explain the reasons for removing the terms subjects the [second amended petition] to demurrer. Since Petitioner has had three chances to cure the defects, and has been unable to do so, the demurrer is sustained without leave to amend."
DISCUSSION
I
Legal Principles
"On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." ( Stearn v. County of San Bernardino (2009)
II
Section 10004.5
At issue is whether the verified petition alleged a fixing or changing of a "rate" or "charge," and if so whether the rate or charge is for an electric commodity or an electric service. Webb contends section 10004.5 reflects a limitation on challenges to formal ratemaking decisions through the adoption of a rate schedule, while Riverside contends it reflects a limitation on challenges to any decision to charge ratepayers any price designated for electric services or commodities.
Section 10004.5, subdivision (a) states, "any judicial action or proceeding against a municipal corporation that provides electric utility service, to attack, review, set aside, void, or annul an ordinance, resolution, or motion fixing or changing a rate or charge for an electric commodity or an electric service furnished by a municipal corporation and adopted on or after July 1, 2000, shall be commenced within 120 days of the effective date of that ordinance, resolution, or motion."
We begin our analysis by looking at the statute's language and giving the words their plain meaning. ( Murphy, supra ,
The statute also must be construed in context and harmonized with other statutes, so we look to other, related statutes and to the intent of the Legislature for further guidance. (See California Manufacturers Association, supra ,
From its inception, the bill was broader than formal ratemaking. The primary focus of Assembly Bill 1657 was to balance
When the Governor vetoed Assembly Bill 1657 expressing concern the statute of limitations would apply to capital facilities fees even when those fees were not noticed or disclosed, the Legislature introduced Assembly Bill No. 1674 (Assembly Bill 1674).
Assembly Bill 1674 also extended a water and sewage industry statute of limitations, section 14402, which set a 120-day limit for challenges to "rates" or "charges" for a commodity or service. There is no published case law applying or analyzing section 14402,
This policy is best served by a broad reading of the statute; otherwise, a party could request a refund years after a charge had been collected, making it difficult for the utility to maintain a stable budget. Any concern that this reading of the statute would create unfair results "goes fundamentally to the wisdom of the statute of limitations, not its applicability ."
Thus, we interpret the 120-day statute of limitations outlined in section 10004.5 to apply to an ordinance, resolution, or motion fixing or changing any rate or charge collected by the municipal electric utility for an electric service or commodity.
III
Application of Section 10004.5 to the Verified Pleadings
Courts generally disregard original pleadings in favor of amended pleadings. ( Kenworthy v. Brown (1967)
The original verified petition alleged the increase in the electric general fund transfer resulted in an "overcharge" to all utility customers. Webb alleged the result of the transfer is "higher charges and fees," and the fees "exceed the reasonable costs to [Riverside] of providing electric utility services." Webb also alleged the transfer was a way to collect revenue from utility rates, Riverside overcharged customers, the rates were inflated, and relief was warranted because Riverside would continue to "overcharge and collect excessive and arbitrary fees."
In her verified second amended petition, Webb removed all references to the words "rate" or "charge," other than to allege "Riverside did not change,
Webb verified in her original petition Riverside overcharged customers, took action that resulted in higher charges and fees, and imposed rates in excess of the actual cost of services, but also verified in her second amended petition the city council's action did not change, fix, or extend a utility rate or charge at all. Webb cannot undo the contradicted verified allegations in her original petition, especially when doing so is to avoid the applicable statute of limitations, which was her rationale here. ( Kenworthy, supra ,
Webb filed her complaint April 28, 2016, more than two years after the December 2013 city council decision, long after the 120-day limit had passed, so her claim is time-barred. (See § 10004.5, subd. (a).) This conclusion is consistent with the policy underpinning section 10004.5. Permitting this case to move forward and seek refunds of electric service charges more than two years after Riverside's decision would place the municipal utility in a state of fiscal uncertainty, which is what the statute of limitations was intended to prevent.
IV
The Electric General Fund Transfer is Not a Tax Increase
Though Webb's claim is barred by the applicable statute of limitations, we separately address the theory raised by Webb's verified second amended
The question of whether a charge is a tax is a question of law that we decide on independent review of the facts. (See Sinclair Paint Co. v. State Bd. of Equalization (1997)
Proposition 218 amended the Constitution to limit local government taxation. (Cal. Const., art. XIII C.) It prohibits local
Propositions 26 and 218 amended the Constitution to add a definition of taxes and identify which taxes require voter approval. ( Cal. Const., art. XIII C, § 2, subds. (a)-(d).) A tax includes "[a]ny levy, charge or exaction of any kind imposed by a local government." (Id. , § 1, subd. (e).) Proposition 26 identified seven exceptions to the definition of "tax," none of which was raised in this case. (See
A tax is imposed when first enacted. ( California Cannabis Coalition v. City of Upland (2017)
The electric general fund transfer is not an imposed, or new, tax because Riverside has been transferring up to 11.5 percent of its electric utility's gross operating revenues to the general fund since 1977 and has also transferred at least some money from the TRR. It also is not an extension of a tax because there was no time limit to the electric general fund transfers. At issue is whether the transfers qualify as a tax increase through a revised methodology for calculating it.
No vote is required under Proposition 218 if the taxing methodology is "frozen in time until the electorate approves higher taxes." ( AB Cellular LA, LLC v. City of Los Angeles (2007)
Webb alleged the inclusion of the full TRR is a change in the mathematical equation in the way Riverside calculates the electric general fund transfer because it incorporates additional reserve money into the "gross operating
Even if the inclusion of the full TRR in the gross operating revenue calculation is a change in mathematical calculation or formula, if it does not increase the amount levied on Riverside ratepayers, it is not a tax increase. (See Gov. Code § 53750, subd. (h)(2)(B) ; Gonzalez,
Like the taxpayers in Gonzalez , Riverside ratepayers have experienced no increases in billing charges since the inclusion of the full TRR funds in the calculation of the electric utility's gross operating revenue. Webb's verified second amended petition alleges ratepayers pay no more now than they did before the December 2013 council meeting. Webb has alleged Riverside collects the additional funds it transfers from the wholesale revenues of the TRR, not Riverside ratepayers. Though the facts here are distinguishable from Gonzalez because Riverside's actions do not change the language of the city's ordinances or charter, the result is the same: no increased charges to ratepayers. (See Gonzalez,
This leaves Webb in a quandary. She cannot amend the verified second amended
DISPOSITION
The judgment is affirmed.
WE CONCUR:
NARES, J.
GUERRERO, J.
Notes
Richard Olquin was the original plaintiff in this matter. He passed away during the pendency of the suit, and the parties stipulated to the substitution of Alysia Webb. We have used Webb's name throughout our opinion.
All statutory references are to the Public Utilities Code unless otherwise noted.
According to the verified petitions, in 2002, when Riverside transferred operations of the transmission lines to CAISO, Riverside petitioned the Federal Energy Regulatory Commission (FERC) to establish its Transmission Revenue Requirement (TRR). At the same time, it sought to include nine percent of the TRR in its electric general fund transfer. Pacific Gas and Electric objected, arguing the city's charter language authorizing the transfer applied to Riverside ratepayers only, not all market participants using the transmission lines. The parties entered a settlement approved by FERC, and subsequently some amount of the TRR was calculated and included in the electric general fund transfer. Transfers also occurred in 2009 and 2011.
The petition also contained a complaint for declaratory and injunctive relief on the same basis and a second complaint for declaratory and injunctive relief seeking an imposition of a penalty against Riverside under Government Code section 53728. Those claims were omitted in the verified second amended petition and are not relevant to this appeal.
The Governor's veto notice also expressed concern that the bill might have retroactive application. (Governor's veto message to Assem. on Assem. Bill No. 1657 (Oct. 12, 1999) 3 Assem. J. (1999-2000 Reg. Sess.) pp. 4553-4554 (veto message).)
There is a pending request for judicial notice of some of the legislative history of section 10004.5. We deny this request as unnecessary. (Quelimane Co. v. Stewart Title Guaranty Co. (1998)
Assembly Bill 1674 also established Government Code section 54999.35, which sets out an exception to the 120-day statute of limitations for certain challenges to capital facilities fees for certain public agencies when notice and disclosure requirements are not met. (Gov. Code, § 54999.35, subd. (b)(6) & (7).)
The court in Util. Cost Management v. E. Bay Mun. Util. Dist. (2000)
Assembly Bill 1674 also established Public Utilities Code sections 12702.5 and 16402.5 and Water Code section 22651.5, each of which is identical to Public Utilities Code section 10004.5.
Webb does not argue, and so we do not address, whether equitable tolling would be appropriate on the basis of the alleged charge being hidden and so undiscoverable within the statute of limitations. (See Utility Cost Management v. Indian Wells Valley Water District (2001)