Filed 2/14/24 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT, E079130 Plaintiff and Appellant, (Super. Ct. No. CIVSB2201601) v. OPINION BOB PAGE, as County Registrar, etc.,
Defendant;
ROBERT CABLE et al.,
Real Parties in Interest and Appellants.
APPEAL from the Superior Court of San Bernardino County. David S. Cohn,
Judge. Affirmed and Dismissed.
The Sutton Law Firm and Bradley W. Hertz; Sanders Political Law and Nicholas
L. Sanders, for Plaintiff and Appellant.
Jolena E. Grider, Deputy County Counsel, for Defendant.
Michel & Associates, C.D. Michel, Joseph Di Monda, and Alexander A. Frank,
for Real Parties in Interest and Appellants.
1 I.
INTRODUCTION 1 Real parties in interest and appellants (Real Parties) circulated an initiative
petition seeking to repeal a special tax imposed in Service Zone Five (FP-5) of the San
Bernardino County Fire Protection District (District). In an attempt to prevent the
initiative (Initiative) from appearing on the June 2022 ballot, the District filed in the trial
court a writ petition and complaint for injunctive and declaratory relief (Writ Petition),
alleging that Real Parties’ Initiative included material, false and misleading information 2 in violation of Elections Code section 18600. The trial court ruled that Real Parties’
Initiative was invalid because it contained false and misleading statements, and granted
the District’s Writ Petition. But because it was too late to prevent the Initiative from
appearing on the ballot, the electorate voted on the Initiative and it passed.
Real Parties appeal the trial court order granting the District’s Writ Petition. They
contend that the trial court erred in finding that the Initiative contained false and
misleading statements in violation of section 18600. Real Parties also contend that the
trial court erred in ruling that the District was not required to prove intent because section
18600’s intent requirement is inapplicable. In the District’s cross-appeal, the District
1 Real Parties are Robert Cable, Charles Pruitt, David Jarvi, Ruth Musser-Lopez, and Albert Vogler. 2 Unless otherwise noted, all statutory references are to the Elections Code.
2 argues that the full-text doctrine provided an additional ground for the trial court to rule
that the Initiative is invalid.
We conclude the trial court properly found the Initiative invalid and appropriately
granted the District’s Writ Petition based on the Initiative containing false and misleading
information. We further conclude the District was not required to establish intent under
section 18600 and affirm the order granting the Writ Petition. Because we conclude the
trial court properly disqualified the Initiative as invalid, the District’s cross-appeal,
raising an additional ground for disqualifying the Initiative, is dismissed as moot.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, the San Bernardino County Board of Supervisors approved the creation
of County Service Area 70, FP-5, which included the Helendale/Silver Lakes area of San
Bernardino County (County). Initially, FP-5 was a small jurisdiction with 1,022 residents
who voted in 2006 in favor of imposition of a $117 special tax per parcel to fund fire and
emergency services in FP-5. The special tax included an annual inflationary increase of
up to 3 percent.
In 2008, the County formed the District under the Fire Protection Act (Health &
Saf. Code, § 13803, subd. (a)), and annexed FP-5 and its special tax into the District. The
District includes 10 separate fire protection service zones, including FP-5.
3 A. Expansion of FP-5 by Annexation
The services provided by the District are primarily funded through property taxes,
contract revenue, and assessment revenue. The District also receives funding from the
County. In 2018, the District was operating under a $29 million shortfall. The District
therefore proposed at a County Board of Supervisors meeting to increase tax revenue by
expanding FP-5 to include Grand Terrace, Yucca Valley, and all unincorporated areas not
already receiving fire and emergency medical services from the District, except for
unincorporated areas within Montclair’s sphere of influence. Otherwise, the District
would have had to impose severe cuts to fire services or continue subsidizing fire services
in those communities with funds collected from property owners in other areas of the
County.
At the June 12, 2018, Board of Supervisors meeting, the Board of Supervisors
adopted a resolution for a new annual parcel tax on all unincorporated parcels and some
incorporated parcels in the District. The Board of Supervisors also adopted a resolution
providing protest procedures allowing affected landowners to protest the implementation
of the new special tax and expansion of FP-5. After a public hearing in October 2018, in
which the public was permitted to protest the expansion of FP-5, the Board of
Supervisors, sitting as the Board of Directors of the District, passed a resolution
approving the expansion of FP-5 and imposition of the new special tax. In 2018, the
landowners in FP-5 were assessed an annual fee set at $157.26 per year, which could
increase up to 3 percent per year.
4 B. Demurrer Ruling in The Red Brennan Group Lawsuit
In response to the resolution, in October 2018, The Red Brennan Group and other
plaintiffs filed in the San Bernardino County Superior Court a reverse validation lawsuit
(Code Civ. Proc., §§ 860, 863) against the County, the District, and other defendants,
contesting the validity of the District’s approval of expansion of FP-5 in October 2018,
and imposing the special tax without a two-thirds vote by the electorate (The Red
Brennan Group, et al. v. The Board of Supervisors of San Bernardino County, et al., Case
No. CIVDS-1826559 (The Red Brennan Group lawsuit)). The lawsuit included causes of
action for (1) permanent injunction, (2) declaratory relief as to the approved special tax,
and (3) declaratory relief as to the necessity of an Environmental Impact Report.
In January 2019, the defendants in The Red Brennan Group lawsuit filed a
demurrer to the first amended complaint, and in April 2019, the trial court sustained the
demurrer without leave to amend on the ground the action was time-barred for failure to
timely bring it within 60 days after the District approved the expansion of FP-5 on
October 16, 2018.
The trial court further stated in its detailed, 18-page decision that, “substantively,
although Plaintiffs title this a claim contesting the unconstitutional imposition of the
special tax, the underlying premise is that the special tax should not be imposed on the
citizens in the annexed part of the fire protection zone simply because the tax was already
assessed in the original zone. . . . However, under Government Code section 57330, . . .
‘any territory annexed to a city or district shall be subject to the levying or fixing and
5 collection of any previously authorized taxes, benefit assessments, fees, or charges of the
city or district.’ (Gov. [Code], § 57330.) As a result, Plaintiffs’ claim regarding the
improper imposition of the special tax actually arises out of the annexation action taken
by District – i.e., but for the annexation and the expansion of Service Zone FP-5, the
special tax would not be assessed on the annexed parcels.”
The trial court in The Red Brennan Group lawsuit also rejected the plaintiffs’
constitutional challenge to the special tax as unfounded under Citizens Association of
Sunset Beach v. Orange County Local Agency Formation Commission (2012) 209
Cal.App.4th 1182, 1194-1195 (Sunset Beach), finding that “the Sunset Beach court
concluded Proposition 218’s proponents ‘simply never intended it to apply to
annexations.’ (Id. at 1195.)”
In June 2020, the District Board passed and adopted Resolution No. 2020-95,
which set the FP-5 special tax at $157.26 per parcel for the fiscal year 2020-2021.
C. The Initiative
In May 2021, Real Parties submitted the Initiative text to the County registrar
(Registrar) and a “Notice of Intent to Circulate Petition.” Between June and October
2021, Real Parties circulated the Initiative petition among the District’s voters. In
October 2021, Real Parties submitted the signed Initiative Petition to the Registrar, and in
December 2021, the Registrar certified that the number of signatures on the Initiative
Petition was sufficient to qualify the Initiative for the June 7, 2022 ballot. In January
2022, the District Board voted to place the Initiative on the ballot.
6 The Initiative’s Notice of Intent to Circulate Petition states in part: “Vote ‘Yes’ to
repeal the special tax associated with FP-5. The California Constitution states, ‘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.’ Despite this clear
language, the FP-5 special tax was imposed by elected representatives on one million
county residents without their consent.”
The Initiative’s text states in part: “The County’s sidestep of the provisions of the
California Constitution has victimized property owners whose parcels have been annexed
and who are now required to pay an ever increasing (up to 3% per year) annual parcel tax
they didn’t vote on.”
D. The District’s Petition for Writ of Mandate
In February 2022, the District filed a petition for writ of mandate and complaint
for injunctive and declaratory relief against the County Registrar. The District alleged
that Real Parties, as proponents of the Initiative, were violating the California Elections
Code and case law by circulating an Initiative that did not include the full text of the
Initiative, failed to attach or include relevant documents and information, and included
material false and misleading information. The District requested judicial relief to
prevent the invalid Initiative from appearing on the June 2022 ballot.
Noting that the Initiative Petition sought to repeal the FP-5 special tax, the District
alleged that “by failing to adequately or accurately inform petition signers of crucial
details about the proposed repeal, and failing to include key documents that are expressly
7 referred to in the Initiative, Real Parties unlawfully deprived the District’s voters of their
rights to be sufficiently informed about what they were being asked to sign and
ultimately, vote on.” The District further alleged that Real Parties’ willfully and
knowingly misinformed the electorate by circulating the Initiative, which contained false
statements and misrepresentations, in violation of section 18600, subdivision (b) and San
Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637 (Nishioka).
The District alleges the Initiative contains the following false, misleading, and
inaccurate information:
(1) “The California Constitution [article XIII C, § 2, (d)] states, ‘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.’ Despite this
clear language, the FP-5 special tax was imposed by elected representatives on one
million county residents without their consent. . . . Citizens must follow the law
and so must their representatives!!” (Initiative notice of intent.)
(2) “Even though the Constitution of California prohibits taxation without two-
thirds voter approval, in 2020, the Fire District Board of Directors, without voter
approval, imposed a tax on every parcel in FP-5 set at $157.26 for the year 2020-
2021.” (Initiative findings, section 1(a)(4).)
(3) “The County’s sidestep of the provisions of the California Constitution has
victimized property owners whose parcels have been annexed and who are now
required to pay an ever increasing (up to 3% per year) annual parcel tax they
8 didn’t vote on. Further, without a prohibition in place, additional victims and their
properties will potentially be added to FP-5 and its tax without their vote of
approval.” (Initiative findings, section 1(a)(5).)
Based on these misrepresentations and misleading statements, the District alleged
in the first cause of action for writ of mandate that it was entitled to a writ of mandate
prohibiting the County Registrar from printing the Initiative on the ballot. The District
alleged in the second cause of action for injunctive relief that the District was entitled to a
temporary restraining order, preliminary injunction, and permanent injunction prohibiting
the Registrar from taking any action that would cause the legally invalid Initiative to be
placed on the ballot. The District alleged in the third cause of action that it is entitled to a
declaration that the Initiative violates the law, that the Initiative is invalid, and that the
Initiative should not be placed on the ballot.
On March 17, 2022, Real Parties filed opposition to the District’s Writ Petition, a
request for judicial notice, and declarations by each Real Party, stating they were not
parties to The Red Brennan Group lawsuit and did not have any involvement with that
case or “knowledge or understanding of the court’s reasoning in its demurrer ruling.”
The District filed a reply arguing that Real Parties could not claim ignorance of The Red
Brennan Group lawsuit or the court’s finding in that action that the FP-5’s special tax
was legal, because The Red Brennan Group was the moving force behind Real Parties’
Initiative.
9 On March 29, 2022, the trial court granted the District’s Writ Petition on the
grounds stated in the court’s written tentative ruling, which states that the Initiative does
not violate the “‘full-text doctrine,’” but is invalid because it contains false and
misleading information. The tentative further states: “The initiative implies that the tax
is unconstitutional and was improperly adopted. . . . The court has already determined in
a previous case that the annexation argument advanced as a ground for constitutional
invalidity of the tax is incorrect. (The Red Brennan Group, et al. v. The Board of
Supervisors of San Berna[r]dino County et al., Case No. CIVDS-1826559.)”
The court added during the Writ Petition hearing that, “I don’t think intent is
required here. The question is whether this language is false or misleading. And I think
it is for the reasons stated that it implies strongly the unconstitutionality of what was done
previously” (imposing the existing FP-5 service tax on annexed parcels). The trial court
also stated in its adopted tentative ruling that the Initiative did not violate the full text
doctrine (§ 9304).
E. Real Parties’ Petition for Writ of Mandate
On March 30, 2022, the day after the trial court ruled on the District’s Writ
Petition, Real Parties filed an emergency ex parte writ petition in this court, requesting
reversal of the trial court’s ruling and retention of the Initiative (also known as Measure
Z) on the June 2022 ballot. The deadline for the Registrar to finalize the ballot printing
for the June 2022 election was March 30, 2022, the date the official election materials
were sent to the printer. On March 30, 2022, this court ordered the proceedings and order
10 on March 29, 2022, stayed pending this court’s ruling on the District’s Writ Petition on
the merits. Thus, the trial court’s order on March 29, 2022, barring printing the Initiative
in the June 2022 ballot, was stayed.
On May 2, 2022, this court denied Real Parties’ Writ Petition and lifted the stay
imposed on March 30, 2022. This court stated in its order that it was taking judicial
notice of the ruling on The Red Brennan Group lawsuit demurrer.
On May 31, 2022, the trial court entered judgment on the order granting the
District’s Writ Petition, invalidating the Initiative, and prohibiting enforcement of it or
giving it legal effect.
In June 2022, Real Parties filed a notice of appeal of the May 31, 2022 order. In
July 2022, the District filed a notice of cross-appeal of the May 31, 2022 order.
III.
DISCUSSION
Real Parties raise three key issues in this appeal:
(1) whether the Initiative contains false and misleading statements, either implied or
express, invalidating the Initiative;
(2) whether a violation of section 18600 requires that false and misleading statements be
made intentionally; and
(3) whether the ruling sustaining the demurrer in The Red Brennan Group lawsuit has
binding precedential effect in this case, and whether Real Parties had notice of it.
11 A. Standard of Review
Generally, we review questions of law de novo (City of Marina v. Board of
Trustees of California State University (2006) 39 Cal.4th 341, 355-356). We review
factual findings for substantial evidence. (City of San Buenaventura v. United Water
Conservation District (2022) 79 Cal.App.5th 110, 120 (United Water).)
When reviewing the trial court’s ruling on a writ of mandate, the appellate court is
ordinarily confined to an inquiry as to whether the findings and judgment of the trial
court are supported by substantial evidence. Where questions of law are presented, the
appellate court conducts an independent review and does not defer to the trial court’s
decision. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407;
Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502.)
Since this appeal concerns the possible application of a constitutional provision
enacted by initiative (Proposition 218), “our task is ascertaining the intent of the voters.
‘When construing a constitutional provision enacted by initiative, the intent of the voters
is the paramount consideration.’ [Citation.] To determine intent, courts look first to the
language of the provision, giving its words their ordinary meaning. If that language is
clear in relation to the problem at hand, there is no need to go further. [Citation.] If, on
the other hand, the language is ambiguous, we turn to extrinsic indicia of voter intent,
particularly what the ballot pamphlet said about the initiative. [Citation.] [¶] In
construing the language of an initiative, we consider not only the ordinary meaning of the
12 bare words, but how those words fit into the initiative as a whole. [Citations.]” (Sunset
Beach, supra, 209 Cal.App.4th at p. 1189.)
Our review of the trial court’s order that the Initiative is invalid is strictly
circumscribed by the long-established rule “of according extraordinarily broad deference
to the electorate’s power to enact laws by initiative. The state constitutional right of
initiative or referendum is ‘one of the most precious rights of our democratic process.’
[Citation.] These powers are reserved to the people, not granted to them. Thus, it is our
duty to ‘“‘jealously guard’”’ these powers and construe the relevant constitutional
provisions liberally in favor of the people’s right to exercise the powers of initiative and
referendum. [Citation.] An initiative measure ‘“must be upheld unless [its]
unconstitutionality clearly, positively, and unmistakably appears.”’ [Citation.]” (Pala
Band of Mission Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565, 573.)
Here, the trial court entertained preelection review of Real Parties’ Initiative,
which was an initiative seeking to repeal a special tax under the Proposition 218
amendment to the California Constitution. Even though the trial court found that the
Initiative was invalid and should not be placed on the ballot, it was too late to prevent it
from being included on the ballot. As a result, the electorate voted on the Initiative and
approved it. Nevertheless, the Initiative remains invalid under the trial court’s
preelection ruling, finding Proposition 218 does not apply and the Initiative contains false
and misleading statements. Real Parties request this court to overturn the trial court’s
May 31, 2022, pre-election order deeming the Initiative invalid.
13 Our review of the Initiative requires this court to do so under the independent, de
novo standard of review because the validity of the Initiative and whether Proposition
218 applies is a constitutional question. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa
Clara County Open Space Authority (2008) 44 Cal.4th 431, 441; see also United Water,
supra, 79 Cal.App.5th at p. 118; Evans v. Unemployment Ins. Appeals Bd., supra, 39
Cal.3d at p. 407.)
B. Invalidity of Initiative Containing False and Misleading Statements
The trial court invalidated the Initiative based on finding it contained false and
misleading statements that implied the FP-5 special tax violated the California
Constitution amendment, Proposition 218.
“‘Through a series of initiatives—Proposition 13 in 1978, Proposition 218 in
1996, and Proposition 26 in 2010—California voters have “limit[ed] the authority of state
and local governments to impose taxes without voter approval.” [Citations.]’
[Citation.]” (United Water, supra, 79 Cal.App.5th at p. 114.) “Proposition 218 added [to
the California Constitution] article XIII C, which requires voter approval of all taxes
imposed by local governments. [Citations.] It also ‘tighten[ed] the two-thirds voter
approval requirement for “special” taxes and assessments imposed by Proposition 13.’
(Brooktrails Township Community Services Dist. v. Board of Supervisors of Mendocino
County (2013) 218 Cal.App.4th 195, 197.)” (United Water, supra, 79 Cal.App.5th at p.
118.)
14 1. Section 18600
Real Parties contend the trial court erred in concluding the Initiative was invalid
under section 18600, subdivision (b), based on the Initiative alleging false and misleading
statements that the special tax violated Proposition 218.
Section 18600 provides in relevant part: “Every person is guilty of a misdemeanor
who: [¶] . . . [¶] (b) Willfully and knowingly circulates, publishes, or exhibits any false
statement or misrepresentation concerning the contents, purport or effect of any state or
local initiative, referendum, or recall petition . . . , for the purpose of obtaining any
signature to, or persuading or influencing any person to sign, that petition.” (Italics
added.)
Real Parties argue the District failed to establish a violation of section 18600
because there was no evidence of the requisite element of intent. We conclude to the
contrary, as did the trial court, that there was no requirement in this case of proof of
intent under section 18600.
First, we note that the trial court’s order does not state it found the Initiative was
invalid based on it violating section 18600. Second, section 18600 is not controlling. As
the trial court correctly noted during the Writ Petition hearing, Real Parties assumed
section 18600 was “the controlling statute, when in fact this is a statute that makes certain
conduct a misdemeanor.”
When the trial court asked for authority supporting the proposition that
establishing intent was required, Real Parties’ attorney acknowledged there was only one
15 published case on point, Nishioka, supra, 75 Cal.App.4th 637, and it was silent on
whether a showing of intent is required. Real Parties’ attorney merely argued that section
18600 requires intent, and therefore the trial court erred in finding the Initiative invalid
because there was no evidence Real Parties had the requisite intent to circulate the
Initiative, knowing it included false and misleading statements. When ruling that the
Initiative was invalid, the trial court stated: “I don’t think intent is required here. The
question is whether this language is false or misleading.” We agree.
A finding that there was a violation of section 18600 was not required here
because this case does not allege that Real Parties committed a misdemeanor in violation
of section 18600. Therefore a finding of intent under section 18600 is not required. As
the trial court correctly noted, the issue here is whether the Initiative is invalid because it
contains false or misleading information. The Elections Code and case law support the
trial court’s determination that an initiative may be found invalid if it contains language
that is false or misleading, even in the absence of evidence of intent or of a violation of
section 18600.
In Nishioka, the San Francisco Forty-Niners, a professional football team, filed a
petition for writ of mandate in the trial court, seeking to invalidate an initiative petition to
repeal initiative measures for construction of a new football stadium. The Forty-Niners
argued the initiative petition contained false and misleading information, in violation of
numerous provisions of the Elections Code. (Nishioka, supra, 75 Cal.App.4th at p. 642.)
The trial court agreed and therefore ruled it was illegal and void. (Id. at pp. 639, 643.)
16 The proponents of the initiative petition appealed the trial court’s writ petition order
prohibiting the initiative from being placed on the ballot. (Id. at p. 639.)
The Nishioka court held the initiative petition contained undisputed, objective
mistruths intended to mislead the voters and induce them into signing the petition, in
violation of the Elections Code. Therefore the initiative petition was invalid and the
Initiative could not be placed on the ballot. (Nishioka, supra, 75 Cal.App.4th at p. 650.)
The Nishioka court stated that “an initiative petition which contains objectively
inaccurate information and calculated untruths that substantially mislead and misinform a
reasonable voter is unlawful under the Elections Code.” (Id. at p. 639.) A writ may issue
to prevent circulation of such an initiative petition containing undisputed falsehoods, but
not as to expressions of opinion, nor to factual matters which are subject to question or
dispute. (Id. at pp. 649-650.)
The Nishioka court clarified that proponents of an initiative petition do not have
First Amendment rights to include false and misleading information in their petition.
(Nishioka, supra, 75 Cal.App.4th at p. 648.) Therefore, issuance of a writ of mandate
preventing the initiative petition from being qualified for a ballot or placed before the
voters does not constitute an impermissible prior restraint on speech, in violation of the
initiative petitioners’ First Amendment rights. (Id. at p. 647.) As noted in Nishioka,
“[a]n initiative petition fits the definition of expressive activity in a nonpublic forum, not
the traditional public forum of unregulated political speech. The initiative petition with
its notice of intention is not a handbill or campaign flyer—it is an official election
17 document subject to various restrictions by the Elections Code, including reasonable
content requirements of truth.” (Id. at p. 648.)
The Nishioka court further stated that, “[W]hile the right of free speech is one of
the most precious rights to citizens of a free and open society, it is not without limit when
the state Constitution provides it with a special forum for an initiative process in which
voters are asked to sign a petition which ultimately may impact the community.”
(Nishioka, supra, 75 Cal.App.4th at p. 647 (italics added); see also City of Riverside v.
Stansbury (2007) 155 Cal.App.4th 1582, 1592 [rejecting initiative proponent’s contention
that he had “an unfettered right to circulate a petition and to present it to the sovereign”
because “there is no constitutional right to place an invalid initiative on the ballot”].)
The court in Nishioka held that the initiative petition violated the “rationale” of
section 18600 by containing deliberately false and misleading information. (Nishioka,
supra, 75 Cal.App.4th at p. 647.) The Nishioka court added in a footnote that, “In light
of this conclusion, we need not reach the Forty-Niners’ contention that the initiative
petition violated other provisions of the Elections Code.” (Id. at p. 647, fn. 9.) There
was no discussion in Nishioka regarding whether intent to include false or misleading
statements in the initiative petition was required. The Nishioka court merely stated that
the trial court made a finding that the appellants violated section 18600 by making
deliberately false statements. The Nishioka court deferred to the trial court’s finding
because it was supported by substantial evidence and the appellants conceded that their
initiative petition contained false statements. (Id. at p. 645.)
18 Here, unlike in Nishioka, the trial court did not make a finding that the Initiative
violated section 18600. The trial court stated in its order that the Initiative was invalid
because it contained false and misleading statements and that a finding of intent under
section 18600 was not required to invalidate the Initiative. Here, the “rationale” of
section 18600 and other provisions in the Elections Code, as well as decisional and
statutory law, support the trial court’s determination that the Initiative is invalid because
it contains materially false and misleading statements. A finding of a violation of section
18600’s intent requirement was not required. Because section 18600 provided authority
to prosecute a misdemeanor charge for violating section 18600, which was not charged in
either the instant case or Nishioka, section 18600 merely supports the proposition that an
initiative containing material false or misleading information is improper under the
Elections Code, and is a valid ground for disqualification.
In this regard, the Nishioka court stated: “Although courts are charged to construe
the Elections Code to favor the people’s awesome initiative power, ‘the statutes designed
to protect the elector from confusing or misleading information should be enforced so as
to guarantee the integrity of the process.’” (Nishioka, supra, 75 Cal.App.4th at p. 644.)
The court in Nishioka noted that “our Supreme Court recognized this principle 65 years
ago” in Boyd v. Jordan (1934) 1 Cal.2d 468, 475, in which the court concluded: “No
elector can intelligently exercise his rights under the initiative law without a knowledge
of the petition which he is asked to sign, and any legislation which will increase the
facilities of the elector to acquire such information is well within the terms of the
19 Constitution permitting the enactment of legislation to facilitate [the initiative process].”
(Boyd v. Jordan, supra, at p. 475; accord, Nishioka, supra, at p. 644.)
Nishioka notes that “[n]umerous decisions have supported the invalidation of
initiative measures for Elections Code violations resulting in voter confusion or
misinformation. (See, e.g., Clark v. Jordan (1936) 7 Cal.2d 248 [misleading short title in
violation of Political Code]; Mervyn’s v. Reyes (1998) 69 Cal.App.4th 93 [failure to
include complete text of the initiative measure]; Hebard v. Bybee [(1998)] 65
Cal.App.4th 1331 [inaccurate and misleading title of referendum measure]; Myers v.
Patterson [(1987)] 196 Cal.App.3d 130 [circulating petition without including notice of
intention]; Chase v. Brooks [(1986)] 187 Cal.App.3d 657 [failure to include complete text
of the initiative measure].)” (Nishioka, supra, 75 Cal.App.4th at pp. 644-645.)
As the court in Nishioka explains, the people “have a right to rely on the integrity
of the initiative process from beginning to end. Because the initiative process bypasses
the normal legislative process, safeguards are necessary to prevent abuses and provide for
an informed electorate. Ordinary citizens with a sense of trust should be able to believe
in the accuracy of what they are signing. Although the truthfulness of ideas may not
always be recognizable, verifiable factual untruths are. When presented in that rare
instance with facts which are conclusively and objectively untrue and mislead potential
signers, the court fulfills its mandated duty under the Elections Code of safeguarding the
integrity of the initiative process by its action.” (Nishioka, supra, 75 Cal.App.4th at p.
649.) The court’s action of invalidating Initiatives containing false and misleading
20 information thus “enhances the initiative process and promotes the confidence of the
voters by preventing fraud on the electorate.” (Id. at p. 649.)
Here, a violation of section 18600, which provides the court with authority to
charge and prosecute a misdemeanor offense, was not required for the trial court to
invalidate the Initiative. The record shows that the trial court did not make such a
finding, and it was not required to do so when ordering the Initiative invalid, because the
trial court appropriately found that the Initiative contained material false and misleading
statements, as explained below.
2. False and Misleading Statements
Real Parties contend the trial court erred in invalidating the Initiative because it
does not contain any express or implied objective false or misleading facts. We disagree.
The Initiative states that the District’s FP-5 special tax should be repealed because
landowners of parcels in recently annexed territories did not vote for the special tax. The
initiative implies that the special tax therefore violated Proposition 218, which requires
two-thirds voter approval for special taxes.
Misleading statements in the Initiative, implying unconstitutionality of the special
tax, include statements in the Initiative petition’s notice and text. The Initiative notice of
intent states: “Vote ‘Yes’ to repeal the special tax associated with FP-5. The California
Constitution states, ‘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.’ Despite this clear language, the FP-5 special tax was imposed by elected
21 representatives on one million county residents without their consent. A ‘YES’ vote will
repeal the tax, leave money in your pocket, and send a message to politicians. Citizens
must follow the law and so must their representatives!!” (Italics in original.)
The Initiative text further states in part: “[T]he County added additional areas to
FP-5 expanding the parcel tax burden without a vote of the people living in those add-on
areas. . . . [¶] . . . Even though the Constitution of California prohibits taxation without
two-thirds voter approval, in 2020, the Fire District Board of Directors, without voter
approval, imposed a tax on every parcel in FP-5 set at $157.26 for the year 2020-2021.
[¶] . . . The County’s sidestep of the provisions of the California Constitution has
victimized property owners whose parcels have been annexed and who are now required
to pay an ever increasing (up to 3% per year) annual parcel tax they didn’t vote on.”
The Initiative notice and text contain implied false and misleading statements that
(1) Proposition 218 applies to the FP-5 special tax and requires a two-thirds vote of
approval and (2) the special tax is illegal and unconstitutional under Proposition 218
because the annexed property owners did not have the opportunity to vote on the special
tax. The Initiative implies these facts are irrefutable, when, in fact, they are objectively
verifiable as incorrect based on well-founded legal authority. There is well-established
law that Proposition 218 does not apply to the FP-5 special tax and it is constitutional
under Nishioka, Sunset Beach, supra, 209 Cal.App.4th 1195, Metropolitan Water District
v. Dorff (1979) 98 Cal.App.3d 109 (Dorff ), Government Code section 57330, and
22 3 Elections Code sections 18600 and 9092. This legal authority was accessible to the Real
Parties, either through conducting legal research or through representation by their
attorneys.
As the court in Sunset Beach stated, any doubt about the constitutionality of a
special tax levied on property owners by annexation, “is removed by examination of the
history behind Proposition 218. Its proponents simply never intended it to apply to
annexations.” (Sunset Beach, supra, 209 Cal.App.4th at p. 1195.) If the annexation is 4 valid, the tax is valid. (Sunset Beach, supra, at pp. 1195, 1197.)
In support of this proposition, the Sunset Beach court cited Dorff, supra, 98
Cal.App.3d 109, explaining: “[T]he existence of the Dorff case, decided in 1979, shows
plainly that Proposition 218 was not intended to apply to the tax effects of annexations.
More than a decade and a half prior to Proposition 218, Dorff directly held that
Proposition 13 did not preclude the application of a preexisting property tax to land
previously not part of an annexing water district to pay for that water district’s
outstanding obligations. [¶] . . . [I]n Dorff the effect of the annexation was to apply a
preexisting tax to property previously free of that tax.” (Sunset Beach, supra, 209
Cal.App.4th at p. 1197, citing Dorff, supra, at p. 115.)
3 Section 9092 states that any elector may seek a writ of mandate requiring false or misleading statements to be amended or deleted from the state voter information guide. 4 Real Parties do not contest the validity of the FTP-5 annexation.
23 The court in Sunset Beach stated that “Dorff recognized that annexations could
have possible adverse tax effects on property being annexed, and these adverse tax effects
were known as early as 1979, and courts had held them not to offend Proposition 13.
Had Proposition 218 been intended to satisfy or avoid the effects of Dorff, we would have
expected some attempt somewhere in Proposition 218 to address the issue. We have
found none.” (Sunset Beach, supra, 209 Cal.App.4th at pp. 1197-1198, citing Dorff,
supra, 98 Cal.App.3d 109.) It is also unlikely that the Legislature would have enacted
Government Code section 57330 in 1993, which states that “[a]ny territory annexed to a
city or district shall be subject to the levying or fixing and collection of any previously
authorized taxes, benefit assessments, fees, or charges of the city or district.” (Gov.
Code, § 57330.)
The Initiative statements convey the misleading and false implied fact that
Proposition 218 applies to the special tax, and the tax is therefore unconstitutional
because the owners of FP-5 annexed property did not vote on the special tax and approve
it by a two-thirds vote. Real Parties argue that, “[b]ecause what may be constitutional
today may be unconstitutional tomorrow,” the facts stated in the Initiative are not
objectively verifiable facts which subject the Initiative to disqualification. We are not
persuaded by this argument. At the time the Initiative was submitted and circulated, the
weight of legal authority established that Proposition 218 did not apply to a special tax on
annexed property and, therefore, the special tax was constitutional. Nevertheless, the
24 Initiative falsely implied that it was undisputed the special tax was unconstitutional under
Proposition 218 because the annexed property owners did not vote on the special tax.
Citing Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, Real Parties
argue the Initiative statements regarding the unconstitutionality of the special tax do not
state objective, verifiable false or misleading facts because they merely state legal
opinion. We disagree. In Gregory, the court held that statements of opinion, as opposed
to statements of fact, are not actionable in defamation cases. (Id. at pp. 603-604.)
Gregory is not on point. It is a defamation action, in which “[t]he gist of the statements .
. . is that the plaintiffs, union officers, were apparently willing to sacrifice the interests of
the members of their union to further their own political aspirations and personal
ambitions. The language of both statements is cautiously phrased in terms of apparency.
More importantly, the charges are of the kind typically generated in the ‘economic give-
and-take’ of a spirited labor dispute in which the judgment, loyalties and subjective
motives of rivals are reciprocally attacked and defended, frequently with considerable
heat.” (Id. at p. 603.)
Although it is true the court may change its view as to how a statute, case, or the
constitution is construed, this does not preclude well-established law from constituting
objectively verifiable fact. Otherwise, an initiative could freely misstate law and mislead
voters into approving an initiative based on unsupported, misleading misstatements of the
law without any adverse repercussions. The electorate would have no recourse or
protection from false, misleading statements of law, and voters would not be able to rely
25 on the veracity of statements of law made in initiatives. This would result in interference
with the State’s “compelling regulatory interest in preserving the integrity of the initiative
process from intentional falsehoods designed to mislead voters into qualifying a measure
for the ballot. . . . [V]oters have a right to rely on the integrity of the initiative process and
the accuracy of the petition which they properly believe complies with Elections Code
requirements.” (Nishioka, supra, 75 Cal.App.4th at p. 648.)
In determining whether statements are false or misleading, “courts look to whether
the challenged statement is subject to verifiability, as distinct from ‘typical hyperbole and
opinionated comments common to political debate.’ (See [Nishioka], supra, 75
Cal.App.4th at p. 649.) An ‘outright falsehood’ or a statement that is ‘objectively untrue’
may be stricken. [Citation.] We need only add that context may show that a statement
that, in one sense, can be said to be literally true can still be materially misleading; hence,
the Legislature did not indulge in redundancy when it used both words. On the other
hand, the standard, as defined by the Legislature, is necessarily a high one: Courts may
intervene only if clear and convincing evidence shows the statement to be false or
misleading.” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th
1417, 1432.)
We disagree with Real Parties that Chavez v. Citizens for Fair Farm Labor Law
(1978) 84 Cal.App.3d 77, is on all fours here on the holding that the misleading
statements were opinion, not fact. Chavez is distinguishable because, here, unlike in
Chavez, there is no conflicting decisional or statutory law on the constitutionality of a
26 special tax on annexed property. The legal issue, thus, is not open to several reasonable
interpretations under decisional law. (Id. at p. 82.)
Even if the unconstitutionality of the FP-5 special tax is subject to question or
dispute, the Initiative is misleading because it implies the special tax is unconstitutional
as a matter of undisputed law, when there was strong legal authority to the contrary.
There is no disclosure that there was any case law or statutory law establishing that the
special tax is actually lawful and constitutional. In effect, the Initiative left the electorate
in the dark in this significant regard by not disclosing that the weight of the law
established that the special tax is constitutional. The Initiative, instead, mislead the
electorate by stating implied “misleading untruths masquerading as facts.” (Nishioka,
supra, 75 Cal.App.4th at p. 649.)
We thus conclude the trial court’s order granting the District’s Writ Petition and
invalidating the Initiative was proper because the Initiative stated material, objectively
false and misleading facts. By invalidating the Initiative, the trial court’s order “enhances
the initiative process and promotes the confidence of the voters by preventing fraud on
the electorate.” (Nishioka, supra, 75 Cal.App.4th at p. 649.)
3. The Red Brennan Group Lawsuit Demurrer Ruling
The trial court cited The Red Brennan Group case in support of its ruling granting
the District’s Writ Petition invalidating the Initiative. In doing so, the trial court noted
that “[t]he court has already determined in a previous case [(The Red Brennan Group
27 case)] that the annexation argument advanced as a ground for constitutional invalidity of
the tax is incorrect.”
Prior to circulating the Initiative in 2021 and 2022, the trial court in The Red
Brennan Group lawsuit rejected the plaintiffs’ constitutional challenge to the FP-5
special tax as unfounded under Sunset Beach, supra, 209 Cal.App.4th at pages 1194-
1195. The trial court stated in its detailed written demurrer ruling that “in the current
litigation, Plaintiffs’ claims are essentially a challenge to the imposition of the special tax
through the operation of Government Code section 57330. However, as held in Sunset
Beach, taxes ‘incident to annexations’ are not subject to the constitutional requirement of
voter approval before said taxes are imposed. . . . [T]he sweeping pronouncement of
Sunset Beach appears to be all inclusive: Proposition 218 simply does not apply to
annexations. Therefore, if the annexation is valid, perforce the tax is valid.” In a
footnote in the demurrer ruling, the trial court noted that “Government Code section
57330 also addresses the issue with respect to districts: ‘Any territory annexed to a city
or district shall be subject to the levying or fixing and collection of any previously
authorized taxes, benefit assessments, fees, or charges of the city or district.’”
As Real Parties argue, the ruling on the demurrer in The Red Brennan Group
lawsuit does not provide binding authority in this case because Real Parties were not
parties in the case and the demurrer ruling was not appealed or a published decision.
However, based on the record in the instant appeal, it can be reasonably inferred
that Real Parties and their attorneys were aware of The Red Brennan Group lawsuit and
28 demurrer decision. Real Party Ruth Musser-Lopez acknowledged in her declaration that
she was aware of The Red Brennan Group lawsuit, attended one hearing in the case, and
was aware of the outcome of the case, although she claims she did not have any
knowledge or understanding of the demurrer ruling resulting in dismissal of the case.
The record also contains materials showing Red Brennan Group’s involvement in
initiative efforts to repeal the FP-5 special tax and was a major moving force behind the
Initiative. Because The Red Brennan Group was instrumental in backing the Initiative, it
can be reasonably inferred that Real Parties or their attorneys knew about the demurrer
ruling, in which the trial court concluded the FP-5 special tax was constitutional under
Sunset Beach, supra, 209 Cal.App.4th 1182, and Government Code section 57330.
But regardless of whether Real Parties were aware of the demurrer ruling in The
Red Brennan Group lawsuit, the demurrer ruling demonstrates that the state of the law
when the Initiative was drafted and circulated, strongly, if not definitively, established
that the FP-5 special tax was constitutional. Real Parties have not cited any persuasive
decisional or statutory law to the contrary.
Because we conclude the trial court properly invalidated the Initiative as invalid
on the ground it contains objectively false and misleading statements, the District’s cross-
appeal, raising an additional ground for disqualifying the Initiative, is moot.
29 IV. 5 DISPOSITION
The trial court order finding the Initiative invalid and granting the District’s Writ
Petition, is affirmed.
We therefore deem as moot and dismiss the District’s cross-appeal, because it
solely raises an alternative ground (the full-text doctrine) for disqualifying the Initiative,
and there is no need to address this alternative ground.
The District is awarded its costs on the appeal and cross-appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
5 Real Parties’ unopposed request for judicial notice, filed on October 5, 2022, is granted. (Evid. Code, §§ 452, subds. (a), (c), (h); 459, subd. (a).)