McBrearty v. City of Brawley, No. D027877

• Court: California Court of Appeals
• Writing for the Court: McINTYRE; BENKE, Acting P.J., and McDONALD
• Citation: 69 Cal.Rptr.2d 862,59 Cal.App.4th 1441
• Parties: , 97 Cal. Daily Op. Serv. 9408, 97 Daily Journal D.A.R. 15,104 Jenean McBREARTY, Plaintiff and Respondent, v. CITY OF BRAWLEY, Defendant and Appellant.
• Decision Date: 15 December 1997
• Docket Number: No. D027877

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69 Cal.Rptr.2d 862 59 Cal.App.4th 1441, 97 Cal. Daily Op. Serv. 9408, 97 Daily Journal D.A.R. 15,104 Jenean McBREARTY, Plaintiff and Respondent,
v.
CITY OF BRAWLEY, Defendant and Appellant. No. D027877. Court of Appeal, Fourth District, Division 1, California. Dec. 15, 1997.

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[59 Cal.App.4th 1444] Horton, Knox, Carter & Foote, Dennis H. Morita and Jeffrey M. Garber, El Centro, for Defendant and Appellant.

Jenean McBrearty, in pro. per., for Plaintiff and Respondent.

McINTYRE, Associate Justice.

In 1991, the City of Brawley (the City) adopted an ordinance imposing a utility tax on its residents and began collecting the tax. In 1996, Jenean McBrearty filed a petition for writ of mandate in Superior Court, contending, in part, that the City was required to submit the utility tax to a vote of the local electorate pursuant to statutes created by a

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1986 initiative measure known as Proposition 62. The trial court issued a writ of mandamus requiring the City to submit the tax to a vote within approximately four months. The City appeals, contending that this action is barred by the statute of limitations and that the law does not, or should not be interpreted to, require it to place the utility tax on the ballot. We find the City's arguments unavailing and affirm the issuance of a writ of mandate, although we modify the scope of the order. BACKGROUND

1. Law Relating to Local Taxation

In 1986, the voters approved Proposition 62, a statutory initiative, to increase the control of the electorate over local taxation. The initiative added sections 53720 through 53730 to the Government Code. ¹ It prohibited local governments from imposing any general tax unless and until the tax was submitted to, and approved by a majority of, the local electorate. (§ 53723.)

Shortly after the passage of Proposition 62, a challenge was asserted to the constitutionality of this provision of the initiative. (See City of Woodlake v. Logan (1991) 230 Cal.App.3d 1058, 282 Cal.Rptr. 27 (Woodlake ).) In that case, the appellate court held that voter approval requirement unconstitutional.

[59 Cal.App.4th 1445] 2. The City's Enactment of its Utility Tax

In the late 1980's and early 1990's, the City experienced difficulties in developing a balanced budget for its general fund and was forced to cut certain public services as a result of its budget problems. In July of 1991, the city council, faced with a substantial projected budget deficit for the 1991-1992 fiscal year, passed an ordinance establishing a general utility tax, payable into the general fund. The City did not seek voter approval of the tax before beginning to collect it.

3. Changes in the Legal Landscape

In September 1995, the issue of the constitutionality of Proposition 62 came before the California Supreme Court in Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 45 Cal.Rptr.2d 207, 902 P.2d 225 (Guardino ). There, the Santa Clara Local Transportation Authority sought to validate a countywide sales tax that had been approved by 54.1 percent of the voters in a general election. Opponents of the tax asserted in part that the tax violated Proposition 62 ² and the California Supreme Court agreed. In reaching its conclusion, the court was faced with the preliminary issue of whether Proposition 62 was constitutional. Rejecting the analysis in Woodlake, the court held that Proposition 62's requirement of voter approval was not unconstitutional. (Guardino, supra, 11 Cal.4th at pp. 238-261, 45 Cal.Rptr.2d 207, 902 P.2d 225.)

4. This Action

In July 1996, McBrearty filed a petition for writ of mandamus, alleging that the City was required, under Proposition 62, to submit the tax to a public vote and seeking to enjoin the City from collecting the tax pending such a vote. The City challenged the petition on the ground that it was barred by the statute of limitations and that, to the extent the petition was timely filed, the Guardino opinion should only be applied prospectively, i.e., to taxes imposed thereafter. The trial court ruled that Guardino applied to the utility tax in question and ordered the City to put the tax to a public vote no later than June 3, 1997. The City did not submit the tax to a vote, but instead filed this appeal.

DISCUSSION

The City raises numerous arguments in support of its appeal. First, it contends that the petition is barred by the statute of limitations. Second, it [59 Cal.App.4th 1446] asserts that the trial court erred in granting the petition because Proposition 62 is unconstitutional for reasons

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not addressed in Guardino. Third, it contends that Guardino should not be applied "retroactively" to require voter approval of its utility tax. Finally, it urges that constitutional amendments adopted by California voters as Proposition 218 in November 1996, support the conclusion that the utility tax is not subject to voter approval. For the reasons that follow, we find these arguments unavailing.

1. Bar of the Statute of Limitations

The statute of limitations applicable to a request for mandamus relief depends on the nature of the obligation sought to be enforced. (Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 1367, 261 Cal.Rptr. 219.) Here, McBrearty seeks to enforce the City's obligation to submit its utility tax to a public vote, an obligation based on the statutory provisions created by Proposition 62. Because the City's obligation is a liability created by statute (ibid.; People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th 233, 251, 55 Cal.Rptr.2d 610; Peles v. La Bounty (1979) 90 Cal.App.3d 431, 435, 153 Cal.Rptr. 571), a three year statute of limitations applies. (Code Civ. Proc., § 338, subd. (a).)

The City argues that McBrearty's cause of action accrued in July 1991, when the utility tax was imposed, and thus her 1996 petition for writ of mandate was not timely filed. The determination of when the statute of limitations begins to accrue depends on the gravamen of McBrearty's claims. (See Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 405-406, 99 Cal.Rptr. 129, 491 P.2d 1105.)

As framed on this appeal, ³ McBrearty seeks to compel the City to now comply with its duty under Proposition 62 to submit the utility tax to a vote by the electorate. Under controlling case law prior to Guardino, the City had no such duty and, accordingly, McBrearty had no valid basis for seeking mandamus relief against the City. (Brandt v. Board of Supervisors (1978) 84 Cal.App.3d 598, 600, 147 Cal.Rptr. 468 [petition for writ of mandate is defective if it fails to show that the respondent agency had a present duty to perform the act sought to be compelled].)

We recognize that a judicial opinion in a civil case does not generally "supersede the operation of the statute of limitations so as to revive old [59 Cal.App.4th 1447] claims which were not pursued because of a previously prevailing contrary rule of law, or to reincarnate dead causes which had fallen to the sword of the statute." (Monroe v. Trustees of the California State Colleges, supra, 6 Cal.3d at pp. 406-407, 99 Cal.Rptr. 129, 491 P.2d 1105, fn. omitted.) However, strict application of the general rule in this case would have required McBrearty to bring a lawsuit challenging the validity of the tax at a time when the legal landscape suggested her only chance of...