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).)

30