Summary
In Jobs & Housing, the court applied the Horwath factors and concluded that the "ballot materials provided extensive, unchallenged, information about the substantive content and effect of the measure."
Summary of this case from Diego v. City of San DiegoOpinion
A158977
12-30-2021
JOBS & HOUSING COALITION et al., Plaintiffs and Respondents, v. CITY OF OAKLAND, Defendant and Appellant.
Barbara J. Parker, City Attorney, Maria Bee, Assistant City Attorney, Jennifer Logue, Supervising City Attorney; Hanson Bridgett LLP, Adam W. Hofmann and David C. Casarrubias, San Francisco, for Defendant and Appellant. Olson Remcho, LLP, James C. Harrison, Sacramento, Karen Getman, Oakland, and Omar El-Qoulaq for Jorge Lerma and George Holland, Sr. as Amicus Curiae on behalf of Defendant and Appellant. Nielsen Merksamer Parrinello Gross & Leoni LLP, James R. Parrinello, San Rafael, and Christopher E. Skinnell, Sacramento, for Plaintiffs and Respondents. Eversheds Sutherland (US) LLP, Timothy A. Gustafson, Eric J. Coffill and Alexandra Louderback, Sacramento, for Council on State Taxation as Amicus Curiae on behalf of Plaintiffs and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A. and II.C.
Barbara J. Parker, City Attorney, Maria Bee, Assistant City Attorney, Jennifer Logue, Supervising City Attorney; Hanson Bridgett LLP, Adam W. Hofmann and David C. Casarrubias, San Francisco, for Defendant and Appellant.
Olson Remcho, LLP, James C. Harrison, Sacramento, Karen Getman, Oakland, and Omar El-Qoulaq for Jorge Lerma and George Holland, Sr. as Amicus Curiae on behalf of Defendant and Appellant.
Nielsen Merksamer Parrinello Gross & Leoni LLP, James R. Parrinello, San Rafael, and Christopher E. Skinnell, Sacramento, for Plaintiffs and Respondents.
Eversheds Sutherland (US) LLP, Timothy A. Gustafson, Eric J. Coffill and Alexandra Louderback, Sacramento, for Council on State Taxation as Amicus Curiae on behalf of Plaintiffs and Respondent.
Humes, P.J.
A group of Oakland citizens placed a proposed special parcel tax on the November 2018 ballot (Measure AA), and officials with appellant City of Oakland (City) prepared ballot materials, which included statements that the measure needed two-thirds of the vote to pass. After Measure AA received 62.47 percent of the vote, the Oakland City Council determined that only a majority of the vote was actually needed for passage, and it declared the measure enacted. A coalition of stakeholders brought this postelection, reverse-validation action against the City, seeking to invalidate the enactment. The trial court ruled in favor of the coalition on its motion for judgment on the pleadings, finding that Measure AA failed because it needed, but had not secured, two-thirds of the vote. The court also found that the enactment of the measure based on less than a two-thirds vote of the electorate would amount to a "fraud on the voters" because the ballot materials had stated a two-thirds vote was needed.
We reverse. In the nonpublished portion of our opinion, we join our colleagues in Divisions Four and Five of this court, and in the Court of Appeal for the Fifth Appellate District, in holding that a citizen initiative imposing a special parcel tax, such as Measure AA, is enacted when it receives a majority of the vote. In the published portion of our opinion, we further hold that Measure AA cannot be invalidated on the basis of the ballot materials’ voting-threshold statements because the statements did not concern the measure's substantive features, were not alleged to be intentionally misleading, and cannot override the law governing the applicable voting threshold. I.
FACTUAL AND PROCEDURAL BACKGROUND
We recount the facts as they were alleged in the complaint. A group of Oakland citizens submitted a petition to place an initiative on the November 2018 ballot to approve a parcel tax to fund programs for early childhood education and college readiness. The initiative appeared on the ballot as Measure AA, seeking to add "The Children's Initiative of 2018" to the City's charter.
In reviewing a trial court's ruling on a motion for judgment on the pleadings we, like the trial court, accept as true a complaint's factual allegations and give them a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.)
The official ballot materials prepared by the City Attorney's Office stated the measure was for a "special parcel tax" and that a two-thirds vote was necessary for it to pass. The City Auditor's analysis likewise stated the measure would go into effect "if adopted by two-thirds of voters."
A majority of Oakland voters, 62.47 percent, voted in favor of Measure AA in the November 2018 general election. Although the measure fell short of two-thirds approval, the Oakland City Council declared that the measure had nonetheless passed ( Elec. Code, § 15400 ). The council's resolution declaring the passage of Measure AA suggested that uncertainty had arisen whether a majority or two-thirds vote was necessary. The resolution listed five other measures that had passed, and after each of their "yes" vote totals, the resolution stated, "(Passed)." By contrast, following the "yes" vote totals for Measure AA, the resolution stated, "(Passed/Fail)," with the word "Fail" having been struck out. Respondent Jobs and Housing Coalition is a nonprofit business advocacy group. It along with others who would be subject to the tax filed this reverse-validation action ( Code Civ. Proc., § 863 ) against the City to invalidate Measure AA as an illegal special tax because it had not received two-thirds of the vote supposedly required by Propositions 13 and 218. According to the complaint, the City Council's action appeared to be an "attempt[ ] to exploit speculation surrounding" a 2017 Supreme Court decision, California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 222 Cal.Rptr.3d 210, 401 P.3d 49 ( California Cannabis ). Respondents also alleged that by declaring after the election that the measure passed by majority vote when the ballot materials had stated a two-thirds vote was needed, the City engaged in a "post hoc bait-and-switch" that "create[d] a patent and fundamental unfairness that amount[ed] to a violation of due process." Finally, respondents alleged that the City and supporters of Measure AA were estopped from claiming after the election that less than a two-thirds voting threshold governed its enactment.
Respondents also named as defendants "ALL PERSONS INTERESTED in the matter of Measure AA." ( Code Civ. Proc., § 863.) After no interested party responded to the complaint following service by publication, the trial court entered a default judgment and ordered that interested-person defendants were barred from contesting the claims in the validation complaint.
Both sides (the City and respondents) filed motions for judgment on the pleadings. The trial court first granted respondents’ motion. It concluded that Propositions 13 and 218 mandated a two-thirds vote to pass Measure AA. It further concluded that the City was barred from enforcing the measure because voters had been told that passage required a two-thirds vote, and allowing the measure to go into effect with fewer votes would amount to "a fraud on the voters" under Hass v. City Council (1956) 139 Cal.App.2d 73, 76, 293 P.2d 61.
The trial court then denied the City's motion for the same reasons it granted respondents’ motion. In its order, it also concluded that respondents had adequately alleged a cause of action for equitable estoppel because, had they known before the election that the City would take the position after the election that Measure AA needed only a majority of votes to pass, they could have exercised a preelection remedy to challenge the ballot materials’ voting-threshold statements.
The City appealed from the subsequent judgment declaring Measure AA invalid and permanently enjoining the City from enforcing it. The Council on State Taxation filed an amicus brief in support of respondents, and two official proponents of Measure AA filed an amicus brief in support of the City.
II.
DISCUSSION
We review de novo the trial court's order granting respondents’ motion for judgment on the pleadings and denying the City's motion for judgment on the pleadings. ( Gerawan Farming, Inc. v. Lyons , supra , 24 Cal.4th at p. 515, 101 Cal.Rptr.2d 470, 12 P.3d 720 ; Estate of Dayan (2016) 5 Cal.App.5th 29, 38–39, 209 Cal.Rptr.3d 712.) A. As a Citizen Initiative, Measure AA Needed a Simple Majority Vote to Pass.
See footnote *, ante .
B. Enacting Measure AA on a Majority Vote Despite Different Statements in Ballot Materials Did Not Violate Due Process or Amount to a Fraud on Voters.
Having agreed with the City that Measure AA needed only a majority of the vote to pass, we turn to consider respondents’ alternative argument that, in light of the ballot materials’ statements that the measure needed two-thirds of the vote to pass, the City Council's resolution declaring that the measure passed with only a majority vote was an "about face [that] violate[d] due process." (Capitalization modified.) While we acknowledge the critical importance of true and impartial ballot materials, we cannot conclude there was a due process violation under the circumstances surrounding Measure AA. The ballot materials’ statements were not alleged to be intentionally misleading and were made when the governing law was uncertain. The statements cannot supplant the constitutional standards governing an election's voting threshold. If they could, government officials who prepare ballot materials would yield too much power to control the outcome of elections. A measure needing a majority vote cannot be invalidated after receiving such a vote simply because its ballot materials incorrectly identify a higher voting threshold, just as a measure needing a supermajority vote cannot be enacted by a majority vote simply because its ballot materials incorrectly identify the lower voting threshold.
When questioned at oral argument whether it was respondents’ position that a measure needing a supermajority vote could be enacted by a majority vote simply because its ballot materials incorrectly identified the lower voting threshold, respondents’ counsel stated that such ballot materials would be subject to a preelection challenge. In response, the City's counsel pointed out that no such preelection challenges were made to the ballot materials accompanying San Francisco's propositions that were the subject of Proposition C , Proposition G , and Howard Jarvis (post , fn. 6). In none of those cases did the courts rely on the ballot materials’ statements that the measures needed a majority vote to pass as independent reasons to enforce the measures as valid enactments.
Respondents’ arguments can be viewed in two ways. By maintaining that the City Council was obligated to enforce the ballot materials’ two-thirds voting-threshold statements even if those statements were wrong, the arguments suggest a postelection challenge to the accuracy of the ballot materials. And by maintaining that the City Council was bound by the ballot materials’ voting-threshold statements regardless of their accuracy, the arguments suggest a direct challenge to the council's postelection conduct. Either way, we are unpersuaded. 1. Measure AA Cannot Be Invalidated Under Due Process Principles on the Basis that the Ballot Materials Were Inaccurate.
As we have said, voters are entitled to be given a true and impartial summary of initiative measures, one that is "not argumentative or likely to create prejudice for or against the measure." ( Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243, 149 Cal.Rptr. 239, 583 P.2d 1281 ; see Elec. Code, §§ 9280 [City Attorney must "prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure"], 9051, subd. (c) [under § 10403, subd. (a)(2), city must "give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure"]; Oakland Mun. Code, § 3.08.200.) "The main purpose of these requirements is to avoid misleading the public with inaccurate information." ( Amador Valley , at p. 243, 149 Cal.Rptr. 239, 583 P.2d 1281.)
"Generally, a challenge to ballot materials must be made before an election. Indeed, a postelection challenge to ballot materials is not permitted by the Elections Code." ( Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 123, 162 Cal.Rptr.3d 769 ( Owens ).) Here, however, respondents’ postelection challenge to prevent the enforcement on Measure AA is grounded on the ballot materials’ statements. The provisions of the Elections Code "do [not] provide a statutory bases ‘to attack the outcome of an election based on deficiencies in the impartial analysis’ of a ballot measure after the election," as "[e]nforcing the requirements for an impartial analysis of a ballot is a preelection activity." ( Denny v. Arntz (2020) 55 Cal.App.5th 914, 921, 269 Cal.Rptr.3d 846 ; accord, Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192, 105 Cal.Rptr.2d 214, 19 P.3d 567.)
While postelection challenges to ballot materials cannot be brought under the Elections Code, "California appellate courts have recognized the ‘possibility’ that an impartial analysis of a county measure or other ballot materials can be so misleading and inaccurate ‘that constitutional due process requires invalidation of the election.’ " ( Owens , supra , 220 Cal.App.4th at p. 123, 162 Cal.Rptr.3d 769.) At the same time, "courts have set a ‘very high’ bar [citation] for litigants to successfully mount" such a challenge. ( Ibid. ) Indeed, Owens noted that "no California appellate court, to our knowledge, has invalidated an election on this basis." ( Ibid. ) This high bar is "for good reason.... ‘California law makes it hard to overturn elections. The reasons are fundamental. Voters, not judges, mainly run our democracy. It would threaten that core tenet if one person who did not like the election result could hire lawyers and with ease could invalidate an expression of popular will.’ " ( Id. at pp. 123–124, 162 Cal.Rptr.3d 769.) The "idea that by ‘constitutionalizing’ deficiencies in voter summaries you can undo an election is really quite antithetical to the democratic process." ( People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914, 933, 131 Cal.Rptr.2d 274.)
Thus, evaluating "how much process is due in a local, direct decisionmaking context—where the complained-of irregularities consist of omissions, inaccuracies or misleading statements in the ballot materials—will depend on whether the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. In conducting this inquiry courts should examine the extent of preelection publicity, canvassing and other informational activities, as well as the substance or content of such efforts. The ready availability of the text of the ordinance, or the official dissemination and content of other related materials, such as arguments for or against the measure, will also bear on whether the statutory noncompliance rendered the election unfair. Finally, courts should take into account the materiality of the omission or other informational deficiency. Flaws striking at the very nature and purpose of the legislation are more serious than other, more ancillary matters." ( Horwath v. East Palo Alto (1989) 212 Cal.App.3d 766, 777–778, 261 Cal.Rptr. 108 ( Horwath ).)
In Horwath , a city attorney failed to prepare an impartial analysis of a proposed rent-stabilization ordinance by not discussing a rent rollback that would go into effect upon the measure's enactment. ( Horwath , supra , 212 Cal.App.3d at pp. 770–772, 261 Cal.Rptr. 108.) After the measure passed, landlords sought a writ of mandate barring its enforcement. ( Id. at pp. 769, 771, 261 Cal.Rptr. 108.) In rejecting the owners’ challenge, Horwath held that a successful challenge to the measure would require an elector to show that " ‘the result would have been different without [the wrongful] influence—i.e., [the misinformation] prevented the expression of the majority will.’ " ( Id. at pp. 774–775, 261 Cal.Rptr. 108.) According to the court, the landlords could not bring such a challenge because they were not electors of the city that enacted the measure and had not "offered any proof that the deficient impartial analysis in fact affected the outcome of the vote." ( Id. at p. 775, 261 Cal.Rptr. 108.) After finding that the failure to disclose the rent rollback "f[ell] somewhere in between a minimal defect and one going to the core character and purpose of the proposed legislation," the court concluded that the impartial analysis "was [not] so egregious as to raise a presumption of unfairness," since other information about the ordinance had been properly disclosed, there had been preelection publicity about the rollback, and the full text of the proposed ordinance had been available. ( Id. at p. 779, 261 Cal.Rptr. 108.) The court held that the owners had failed as a matter of law to establish a constitutional violation. ( Ibid. ) In advancing their due process argument here, respondents do not analyze the Horwath factors. They insist that Horwath was a "fundamentally different case[ ]" because it involved "a sin of omission " instead of "a sin of commission ." We see this as a difference without a distinction. Respondents’ due process argument is based on the premise that the ballot materials were inaccurate, and respondents have offered nothing to explain why the way in which the inaccuracy arose—by failing to include a point as occurred in Horwath or by including an inaccurate point as occurred here—affects the analysis.
Instead, they rely on two federal cases that involved challenges to the handling of absentee ballots. (Roe v. Alabama (11th Cir. 1995) 43 F.3d 574, 583 [certifying question to state supreme court about state law affecting absentee ballots without deciding constitutional question]; Griffin v. Burns (1st Cir. 1978) 570 F.2d 1065, 1076 [where state supreme court ruled that absentee ballots were not permitted in primary elections and invalidated votes of people told they were permitted to vote absentee, "the election itself becomes a flawed process"].)
We therefore apply the Horwath factors and conclude that Measure AA cannot be invalidated on due process grounds. To begin with, other than the voting-threshold statements, Measure AA's ballot materials provided extensive, and unchallenged, information about the substantive content and effect of the measure. Voters were informed that 62 percent of the tax would be used to expand access to early childcare and education, 31 percent would be used to "reduce disparities in postsecondary education outcomes," and seven percent would be used for oversight and accountability costs established by the measure. Voters were also informed that a new accountability officer would be added to City staff to oversee programs funded by Measure AA, and they were provided with a description of the officer's job responsibilities and authority. And they were informed that the tax would generate around $30 million in revenue each year, would be imposed through fiscal year 2048–2049, could be increased by the City Council on certain criteria, and would include exemptions for some low-income and other qualifying households. In short, it is undisputed that voters were given true and impartial information about the substance of the proposed tax and how and where the proceeds would be distributed. In contrast, the ballot materials’ voting-threshold statements did not strike "at the very nature and purpose of the legislation" but concerned an important, but "more ancillary matter[ ]." ( Horwath, supra, 212 Cal.App.3d at pp. 777–778, 261 Cal.Rptr. 108.)
Furthermore, the ballot materials’ voting-threshold statements were made when there was legal uncertainty about the applicable voting threshold for citizen's initiatives for special parcel taxes. Respondents themselves acknowledge that "Proposition 13 is one of the most litigated (non-criminal) laws in California." And in recent years, cities facing citizen-initiated tax initiatives have not had a clear-cut answer on the governing vote threshold. (See, e.g., California Cannabis , supra , 3 Cal.5th at p. 956, 222 Cal.Rptr.3d 210, 401 P.3d 49 (dis. opn. of Kruger, J.) [noting that majority's opinion could be construed to mean that "from here on out, special taxes can be enacted by a simple majority of the electorate"].) Not surprisingly, cities have taken different positions on the voting threshold needed for citizen-initiated tax measures. On one hand, for example, Fresno's city council referred to a two-thirds vote threshold in its resolution placing a citizen tax initiative before the voters in November 2018, though the city took a neutral position in proceedings to implement the measure "and indicated it would defer to the court's guidance." ( City of Fresno v. Fresno Building Healthy Communities , supra , 59 Cal.App.5th at pp. 229–230, 273 Cal.Rptr.3d 144.) In San Diego, the San Diego City Attorney advised voters that a two-thirds vote was necessary for a citizen-initiative hotel tax placed on the March 2020 ballot. On the other hand, the ballot materials sent to San Francisco voters regarding the taxes at issue in Proposition G and Howard Jarvis (in advance of the June 2018 election), and Proposition C (in advance of the November 2018 election) stated the measures required a simple majority to pass. ( Proposition G , supra , 66 Cal.App.5th at p. 1065, 282 Cal.Rptr.3d 17 ; Howard Jarvis , supra , 60 Cal.App.5th at p. 231, 274 Cal.Rptr.3d 432 ; Proposition C , supra , 51 Cal.App.5th at p. 708, 265 Cal.Rptr.3d 437.) Given this uncertainty, we cannot conclude that it was fundamentally unfair for Oakland officials to express in the 2018 ballot materials that Measure AA would require two-third of the vote to pass, then later take a different position.
Respondents’ unopposed request for judicial notice of the San Diego ballot materials is granted. On its own motion, the court takes judicial notice of the San Francisco ballot materials after having provided the parties notice and an opportunity to object, which no party did. (Evid. Code, §§ 455, subd. (a), 459, subd. (c).)
2. Measure AA Cannot Be Invalidated as a "Fraud on the Voters."
Respondents more forcefully argue that the City Council's declaration enacting Measure AA on a majority vote when the ballot materials stated that a two-thirds vote would be required amounted to a fraud. They describe the City Council's action as "game-playing" and "cynically revers[ing] course after the fact." And they characterize the City's position that it did not engage in fraud as "astonishing," "astounding," and "wholly undemocratic." While we agree that the ballot materials’ incorrect voting statements were lamentable, we cannot agree that respondents sufficiently alleged fraud by the City. As did the trial court, respondents rely on the 1956 case of Hass v. City Council , supra , 139 Cal.App.2d 73, 293 P.2d 61, which includes forceful, yet ultimately undefined and unhelpful, language, and is distinguishable. In Hass , the Palm Springs City Council held a special election for an ordinance to change the boundary lines for council districts. ( Id. at p. 74, 293 P.2d 61.) Both the ballot and the proposed ordinance itself stated that the redistricting would proceed if three-fourths of voters voted in favor of the ordinance. ( Id. at pp. 74–75, 293 P.2d 61.) Because the ordinance received a majority, but less than three-fourths, vote, the city council declared that the ordinance had failed. ( Id. at p. 75, 293 P.2d 61.) Three appellants sued to have the city council nonetheless adopt the ordinance, but the trial court and the appellate court rejected their claims. ( Ibid. )
The appellants in Hass argued that the ordinance was legally adopted by a majority vote because state law did not compel a three-fourths vote for redistricting. ( Hass v. City Council , supra , 139 Cal.App.2d at p. 75, 293 P.2d 61.) But the appellate court concluded that whatever law governed the voting procedure, "it would seem to follow logically and legally that the matter should be submitted to the voters on that basis, or at least that the voters should not be deceived or misled in that respect. After the election has been decided by the voters on the basis of the proposed ordinance submitted to them, the result should not be declared void by the body charged with the duty of canvassing the votes on the ground that a different rule should have been followed and a different proposition submitted." ( Id. at pp. 75–76, 293 P.2d 61.) The voters in Hass "were asked to vote on the basis that a three-fourths vote was required, and the result of the election did not meet the requirement set forth in both the proposed ordinance and the ballot." ( Id. at p. 76, 293 P.2d 61.) The court concluded that "[i]t would be a fraud on the voters" to force the adoption of an ordinance after electors "voted upon an ordinance submitted to them upon a definite condition ," one that was (unlike in this case) requested by the signers of the initiative petition placing the ordinance on the ballot. ( Ibid. , italics added.) On those facts, Hass ruled that the trial court properly exercised its discretion in denying the appellants their request to implement the redistricting ordinance. ( Id. at pp. 76–77, 293 P.2d 61.) The case does not, as respondents claim, stand for the broad principle that a proposition "will not be considered adopted" if it passes by a smaller majority than what was stated in ballot materials.
Respondents point out that Hass observed that "[i]t may well be that many voters who were not entirely convinced as to the wisdom of adopting that [council redistricting] ordinance were willing to agree to it in the event that three fourths of the voters desired to make that change." ( Hass v. City Council , supra , 139 Cal.App.2d at p. 76, 293 P.2d 61.) This conjecture has less relevance here because Measure AA, unlike the measure in Hass , did not include a voting threshold in its text. But even accepting that incorrect statements in ballot materials might affect some voters, we disagree that this possibility rendered the enactment of Measure AA a fraud on the voters. Respondents discount the fact that in Hass the voting threshold was in the text of the proposed ordinance and not just, as here, in the ballot materials. We presume that voters are familiar with the language of a proposed ordinance, "have duly considered it, and have voted intelligently." ( Monette-Shaw v. San Francisco Bd. of Supervisors (2006) 139 Cal.App.4th 1210, 1219, 43 Cal.Rptr.3d 659.) A voting threshold identified in ballot materials cannot supplant the law governing the applicable voting threshold, while a voting threshold expressed in a measure itself establishes the applicable law for that measure.
We are aware of only two published cases that cite Hass , and one of them distinguished it on the basis that the initiative in Hass contained "express language ... which required approval by three-fourths of the voters." (Santa Barbara County Taxpayer Assn. v. Board of Supervisors (1989) 209 Cal.App.3d 940, 948, 257 Cal.Rptr. 615, italics added.)
Respondents asked the trial court to rule as a matter of law that the City Council's action declaring Measure AA enacted on a majority vote amounted to a fraud on voters. Hass did not define the phrase "fraud on the voters," but fraud generally requires an intentional misrepresentation. The "actual fraud" necessary to set aside a contract, for example, is defined as "[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true ." ( Civ. Code, § 1572, subd. 1, italics added.) The cases cited by respondents all involve such verifiably untrue statements. ( Peery v. City of Los Angeles (1922) 187 Cal. 753, 769, 203 P. 992 ["fraud would be wrought" if city were to dispose of bond issues at less than value approved by voters, which was "one of the essential conditions upon which" the bond issues were obtained]; Skinner v. City of Santa Rosa (1895) 107 Cal. 464, 476–477, 40 P. 742 [enjoining sale of bonds on terms that did not substantially comply with those voted on]; San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 639, 89 Cal.Rptr.2d 388 [prohibiting the qualification of an initiative measure for ballot where initiative petition contained "objectively inaccurate information and calculated untruths that substantially mislead and misinform a reasonable voter"]; Concerned Citizens v. City of Carlsbad (1988) 204 Cal.App.3d 937, 940, 943, 251 Cal.Rptr. 583 [upholding the refusal to enact proposition that received fewer votes than competing proposition where measure specifically stated that the one receiving more votes "shall prevail"; to hold otherwise "would disenfranchise all those Carlsbad residents who voted for both propositions on the premise that only one would be enacted"].)
By contrast, the voting-threshold statements in Measure AA's ballot materials must be viewed in a context of an evolving legal landscape surrounding citizens’ initiatives for special parcel taxes. While the City Attorney and Auditor were incorrect in stating in the ballot materials that Measure AA required two-thirds of the vote, respondents did not allege that these officials acted with a fraudulent intent, nor can we ascribe such an intent to them. (See Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1008, 198 Cal.Rptr.3d 715 [elements of fraud, including the intent to induce reliance on a known falsity, must be plead with specificity].)
C. Respondents Have Not Stated a Cause of Action for Estoppel.
See footnote *, ante .
III.
DISPOSITION
Respondents’ unopposed request for judicial notice filed on December 2, 2020, is granted.
The judgment is reversed. The trial court is directed to enter a new order denying respondents’ motion for judgment on the pleadings and granting the City's motion for judgment on the pleadings. Appellant City of Oakland shall recover its costs on appeal.
I CONCUR:
Sanchez, J.
CONCURRENCE OF BANKE, J. I concur in the disposition. The outcome in this case and other recent cases holding citizen initiative tax measures are not subject to the requirements of Proposition 13 and Proposition 218— City and County of San Francisco v. All Persons Interested in the Matter of Proposition G (2021) 66 Cal.App.5th 1058, 282 Cal.Rptr.3d 17, Howard Jarvis Taxpayers Assn. v. City and County of San Francisco (2021) 60 Cal.App.5th 227, 274 Cal.Rptr.3d 432, City and County of San Francisco v. All Persons Interested in the Matter of Proposition C (2020) 51 Cal.App.5th 703, 265 Cal.Rptr.3d 437, City of Fresno v. Fresno Building Healthy Communities (2020) 58 Cal.App.5th 884, 273 Cal.Rptr.3d 144 —is compelled by our Supreme Court's decisions in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 222 Cal.Rptr.3d 210, 401 P.3d 49, Rossi v. Brown (1995) 9 Cal.4th 688, 38 Cal.Rptr.2d 363, 889 P.2d 557, and Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 279 Cal.Rptr. 325, 806 P.2d 1360. Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, we must, of course, follow the high court's rulings undergirding its decisions in these cases. I nevertheless share the concerns voiced by Justice Kruger in her concurring and dissenting opinion in California Cannabis Coalition , in which Justice Liu concurred. It has come to pass, as Justice Kruger predicted, that "[i]f a local tax enacted by voter initiative is not a tax ‘impose[d]’ by ‘local government,’ " as the majority held, "then from here on out, special taxes can be enacted by a simple majority of the electorate, as long as proponents can muster the necessary quantum of support to require" placement on the ballot. ( California Cannabis Coalition, at p. 956, 222 Cal.Rptr.3d 210, 401 P.3d 49 (conc. & dis. opn. of Kruger, J.).)