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HomeMy WebLinkAbout0 - Public Comments5�}i ✓aA. A:T i3 vrL Cc�1� 1A Comments on October 9, 2012 City Council Agenda Items Comments by: Jim Mosher (iimmosher(a)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) CLOSED SESSION — 6:00 p.m. Item B. Conference with Labor Negotiators This item, which has appeared on every Regular Meeting agenda for well over a year, announces Council's purported need to privately discuss with the City Manager and Human Resources Director their negotiations with a long list of "Employee Organizations," despite public announcements that negotiations with most of these groups have been successfully concluded. This appears to have become a standing item, and in a city where the Council's contract with the people says "All meetings ... shall be open to the public" (Charter Section 409), it would appear to be an abuse of the very limited privilege granted by the Brown Act to discuss specific, accurately noticed topics for which there is a clear and compelling public interest in secrecy. REGULAR MEETING — 7:00 p.m. Item 1. Minutes for September 12 and September 25, 2012 Meetings U 1 have submitted separate written comments regarding the draft minutes. Item 4. Prevailing Wage Exemption I do not in any way pretend to be knowledgeable about prevailing wage issues, but I find puzzling and disturbing the statement in the staff report that "Staff will conduct some more analysis to determine the need for this resolution. In the meantime, the City will continue its current practices, which is to exempt some projects from prevailing wage requirements." If it has indeed been the practice of the City, with no local laws to the contrary, to ignore California prevailing wage laws, then as a non - lawyer reading the July 2, 2012 California Supreme Court opinion alluded to it in the staff report — State Building and Construction Trade Council of California, AFL -CIO v. City of Vista (54 Cal.4th 547) — it would appear to me we are in clear violation of the law and vulnerable to expensive litigation initiated at any moment by any interested party. Rather than a matter that should be continued indefinitely, this would seem to be one requiring urgent action, either to correct the practice or to enact the legislation necessary to justify it. My reasons for thinking this are as follows o As I understand it, there are statewide laws establishing prevailing wage requirements, in particular, in the California Labor Code. October 9, 2012 Council Meeting agenda comments by Jim Mosher Page 2 of 4 In purely municipal affairs, Newport Beach's charter city status gives it the right to enact local laws differing from the general statewide laws, but in the absence of such local laws it does not, as far as I know, give Newport Beach the right to ignore state laws. In the California Supreme Court ruling mentioned above, the City of Vista was found to have the right to pay less than prevailing wages on locally funded city projects because it had enacted an ordinance conflicting with the state law and because 5 of the 7 Supreme Court justices found the payment of wages for public works projects funded purely with local funds to be a municipal affair (a finding the other two strongly disagreed with). The existence of a conflicting local ordinance was required because in its absence the Court found "the state's prevailing wage law does not exempt charter cities' (page 560). o Vista not only had an ordinance conflicting with state law, but also a city charter provision exempting it from statewide public contracting laws unless explicitly adopted by the City Council: "Section 300. Public Works Contracts. The City is exempt from the provisions of all California statutes regulating public contracting and purchasing except as provided by ordinance or by agreement approved the City Council. The City shall establish all standards, procedures, rules or regulations to regulate all aspects of public contracting. " Although the people of Newport Beach have, through Charter Section 200, given the City Council wide latitude to enact laws differing from those of the state legislature, the Council has not yet, to the best of my knowledge, enacted any ordinance conflicting with the prevailing wage provisions of the California Labor Code. As a result, it is very difficult to see how City staff is currently free, as the staff report says it does, to ignore state laws explicitly applying to charter cities and "exempt some projects from prevailing wage requirements." Indeed, the California Supreme Court ruling suggests that exempting projects in the absence of a local law justifying the exemption is a clear violation of the state law. Item 7. Acquisition of Non - Conforming Property at 1499 Monrovia Avenue o It seems disingenuous that no mention is made in the staff report that the use of an easement across this property, which would eliminate a substantial part of the parking serving the present use, is necessary to extend 15th Street to connect with the new "Bluff Road" proposed by the adjacent Newport Banning Ranch (NBR) developer. ® It also seems odd that we would need a site for a community center when we already have one on the same street and appear to be planning to construct another one at the Corporate Yard, nearby. ® If this acquisition is indeed required to facilitate or serve the NBR development, it would seem the developer should be sharing in the cost, or providing the amenities on their own land. October 9, 2012 Council Meeting agenda comments by Jim Mosher Page 3 of 4 Item 11. Newport Beach Restaurant Week Marketing Services Agreement • As I have commented many times before, if it is legally possible for them to do so I welcome the City's interested restaurant owners in joining together in a joint marketing effort, but I do not believe the City (and taxpayers) should have any involvement in this enterprise. As indicated in the staff report, major funding for Restaurant Week comes from the Restaurant "Business Improvement District," which is, in turn, funded both by taxpayer "matching" funds and involuntary levies on all food serving businesses in Newport Beach. Yet Restaurant Week benefits only the tiny minority of those who pay an extra buy -in fee to the marketing firm. And even if the others (such as supermarkets, bakeries and fast food chains) did choose to buy in, it is not structured to benefit them, and indeed it seems intended to lure business away from them. Yet they, and the City's taxpayers, are the ones who pay to put on Restaurant Week. This is crony capitalism at its worst. Item 12. Amend and Re- Affirm Council Investment Policy (F -1). With regard to the summary of changes highlighted in the staff report: • Under "Section H.4. Investment Parameters - Competitive Transactions" the reference to the City investing in mortgage backed securities might raise some eyebrows. • Under "Section I. Portfolio Performance" it is unclear why taxpayers would be interested in anything other than the performance of their investments "net of fees." A large return eaten away by large fees is not a large return. Under "Section K.1. Investment Policy Compliance" there is a question of timeliness. The promise to share credit alerts with the Finance Committee is fine, but the Finance Committee now meets only quarterly. Would a special meeting be called to review a credit alert? As to the substance of the redlined version: • In the - proposed "Section K.I. Investment Policy Compliance" there is, at the end, a dangling reference to the "Finance Director" that was probably meant to be, but has not been, crossed out. Also, on page 13, Section H.3 says "The City Council will be advised of the situation and intended course of action." This seems mildly inconsistent with the present section which says only the Finance Committee will be informed of instances of non - compliance. In the proposed "Section K.2. Investment Policy Adoption" it is unclear why the word "only" is included in the directive "The Finance Director shall review the Investment Policy with City Council at a public meeting only if there are changes recommended to the Investment Policy." I should think the full Council would want to retain the right to .,call up" the City's Investment Policy for review at any time, not just when the Finance October 9, 2012 Council Meeting agenda comments by Jim Mosher Page 4 of 4 Committee or the Finance Director recommends a change. That is, public review should be mandatory when a change is recommended and optional at all other times. Omitting the "only' would achieve that. Item 14. Annual Review of Agreement for Sober Living by the Sea Since it affects property in the Coastal Zone, I believe this agreement, made pursuant to California Government Code Sections 65864 - 65869.5, needs to be reviewed and approved by the California Coastal Commission. Item 15. Commercial Lease Template To some, Council and staff might seem to be speaking out of both sides of their mouths, for the present report suggests good faith negotiations about marina rental fees are continuing with "stakeholders," yet at the same time staff and Council are, in November 6's Measure EE, proposing a Charter Amendment that would bar those stakeholders from filing a class claim if they are unhappy with the result. Item 16. Memorial Bike Ride,.Waiver of Fees, Bike Safety Improvement Fund Unless the money is being funneled through a private group (which is not clear from the report), the concept of the City "waiving" fees that it would impose on itself is difficult for me to fathom. I assume this means only that (per page 3) the costs in staff time, and possibly other expenditures required to put on the fund raising event, will be regarded as part of the City's contribution to match the private donations. a It is also unclear from the report if the resulting funds placed in the proposed( ?) "Bike Safety Improvement Fund" will be regarded as a dedicated Capital Improvement Fund subject to the restrictions of City Charter Section 1113. If so, Council should be enacting an ordinance to create it. °`I~ECEIVE Af7 AG ��A FRIP�TEB:" . Draft Minutes for September 11 & 25, 2012 (October 9 Agenda Item 1) The following are typos and possible errors noticed in the Draft Minutes for the September 11 & 25 Council Meetings, being considered for approval as Agenda Item 1 on October 9, 2012. Suggestions submitted by Jim Mosher ( iimmosher(a),vahoo.com ; (949) 548 -6229) September 12, 2012 - Special Meeting Volume 60 - Page 585 (third.full paragraph) e "Jim Walker, President of the Newport Beach Resident Restaurant Association, expressed... Volume 60 - Page 586 (fifth paragraph) "STET hoped that Council will consider the issue carefully." o STET —"let it stand"-- most likely means a name had been crossed out incorrectly? (second paragraph from end) that no business owner could sustain with the proposed fee increases." o Should "sustain" read "survive "? September 25, 2012 - Regular Meeting Volume 60 - Page 591 (After the firstfzdl paragraph, a public comment has been omitted at the end ofStady Session Item II2, and just before Item Q.3) G "Jim Mosher noted the consultant had placed Council members in the highest band of executive compensation, questioned how this could be reconciled with a City Charter that provides the Council members shall receive no compensation for their service, noted the consultant included benefits in total compensation and referenced a letter the authors of the Argument Against Measure EE received from City staff threatening them with litigation for describing benefits as part of compensation." (second to last line offirst paragraph under "3.') ® '...but when responding; —there are limitations..." (delete';;") (last paragraph) o "Jim Mosher beta„- at the response ten ndatien n4 will - not -ti be implemented ' h-1 , stated that Recommendation R2 states that it has not been implemented but may be considered in the future, and suggested that the same wording be used for Recommendation RI match that of Reeommendation R2." Volume 60 - Page 593 (content missing at bottom ofpage) E. PUBLIC EMPLOYEE PERFORMANCE EVALUATION (Government Code § 54957) Title: Aaron C. Harp, Citv Attornev Corrections to October 9, 2012 Council Agenda Item 1; page 2 of 5 Volume 60 - Page 594 (in Coast Colleges' presentation) • (line 7): " community colleges than they have in the past," • (line 8): " ...that community eollege colleges trains nearly 80% ..." Volume 60 - Page 595 first full paragraph, line 4) a '`...where he was &rmerly formally installed as President (second full paragraph, second to last line) a "...installing been boom technology ..." Volume 60 - Page 597 (paragraph under "3.') a "... Code was a issued, and that he believe -that believes the Fire Department..." Volume 60 - Page 598 (third paragraph under "PUBLIC COMMENTS) a "Denise Denys Oberman..." Volume 60 - Page 599 (line 3) a "NAIAle Novell Hendrickson commented ..." (note: this should also be preceded by a blank line) (second paragraph fro n end) a `...FAA and Traeou TRACON ..." (acronym for "Terminal Radar Approach Control') Volume 60 - Page 600 (firstporagraphunder "14.') a "...development of Mariner's Paint Pointe ... (first paragraph under "15. ", line 2) • `...the Citizens Advisory Panels Panel (CAP) meetings..." Volume 60 - Page 601 (sixth paragraph) a "Denise Denvs Oberman..." Volume 60 - Page 602 (line 2) a `...the plan will erase require a disclosure..." (second paragraph) a "Unlfnown An unidentified speaker opposed ... (last paragraph before close of hearing) a "WA.DildingDildinenoted..." (third line ofparagraph at start of hearing) a `...area is in an advanced set state of decline a ..." (fourth linefrom end ofsame paragraph) a `...enhance a sense of place for the Balboa Village, ..." Volume 60 - Page 603 (third paragraph) "Motion by Council Member Hill, seconded by Council Member Henn to a) adopt attached Resolution No. 2012 -84 approving the Balboa Village Implementation Plan consistent with the recommendations of the Neighborhood Revitalization Committee and finding that the ..." ( ? ?) Corrections to October 9, 2012 Council Agenda Item I; page 3 of 5 o The preceding description of the motion voted upon does not match the minutes which say Council Member Hill moved to accept the recommended action with "Implementation Plan" changed to "Master Plan" and deletion of the RV Park. (first paragraph under "16 ' ) a `...Director Brandt reported that the annual agreement ..." Volume 60 - Page 604 (fifth paragraph front end) • (line 2) "...hoped that the issues can be resolved ..." • (line 4) "...requiring owners to q*" Agil claim the docks ..." (third paragraph from end) a (line 2)" ... equates to an imminent eminent domain,..." (second paragraph from end) • (line ]) "Sherman S" Stacey ..." • (line 2) "...the rent is menopelist monopolistic, ... Volume 60 - Page 605 (second full paragraph) • "Scott Sehett Schock expressed opposition to the proposed lease agreement. Gary McKitterick implored ..." (Gay McKitterick should start on a new line) (sixth paragraph) • "An unknown Unknown speaker opposed to the proposed lease template..." Volume 60 - Page 606 "Motion by Council Member Henn, seconded by Council Member Daigle to adopt the Resolution No. 2012 -86, approving a model lease template for commercial marinas located upon City administered tidelands." o I believe this is incorrect. My understanding is the motion was to continue consideration of Resolution No. 2012 -86 to a special meeting. (second paragraph from end) • "Council Member Selich stated that both options, that being a hotel or apartments, should be considered." Volume 60 - Page 607 (fourth run - together paragraph) • "Denise Denys Oberman..." (this should be preceded by a blank line) (seventh paragraph) • "Brian Z Michael Brant- Zawadzki addressed a vole-anized Balkanized approach in to decision making...' Volume 60 - Page 608 (fifth paragraph) a "Mayor Gardner noted that Mr. Nichols was considered a City employee when on the Council, noted that all groups are contributing more towards their pensions as �� compared to previous years..." CorTections to October 9, 2012 Council Agenda Item 1; page 4 of 5 The minutes for Item 21 are impossible to follow without identifying the issue being discussed. 1 would suggest: Mayor Gardner introduced Recommendation 21a: Should Harbor Resources staff and /or the Harbor Commission pursue regulations or education efforts regarding Stand -Up Paddleboardin2 in the Harbor? Council Member Daigle addressed public comments received on the issue noting differing opinions, stated..." Volume 60 - Page 609 The two motions are listed out ofseguence. I believe it should read something like this: Doug West, Chair of the Harbor Commission, stated that the Harbor Commission will not approach this in a regulatory framework, indicated that he believe believes that a problem does not exist, and stated that if Council directs the Harbor Commission to address this, they will. Motion by Council Member Selich. seconded by Council Member Rosansky to do nothing relative to recommendation 21 a. The motion carried by the following roll call vote: Mayor Gardner introduced Recommendation 21b: Should the City pursue an amendment to the Municipal Code that requests that the military provide notice of any non - emergency flyover in the community? Council Member Rosansky stated that this is a solution looking for a problem and believed that the matter is not an issue to be considered. Motion by Council Member Rosansky. seconded by Council Member Henn to do nothing relative to recommendation 21b. The motion carried by the following roll call vote: rights -of -way, such as in Santa Ana Heights Newport Shores and more? Assistant City Manager Badum presented information on encroachments including the types of encroachments and related permits needed, as well as the current implementation program and current issues. Corrections to October 9, 2012 Council Agenda Item 1; page 5 of 5 Volume 60 - Page 610 (second paragraph) • "Jim Mosher referenced the local appointments list, stated that it needs to be cleaned up, and expressed concerns regarding the Task Force not being subject to the Brown Act." (MOTION FOR RECONSIDERATION) The draft minutes are missing the motion to reconsider, which passed unanimously before the revote on Item 15. As when originally mentioned at Volume 60 - Page 603, 1 don't think the motion regarding Item 15 is correctly stated. I believe the motion was to accept the recommendation with "Implementation Plan" changed to "Master Plan" and the RV Park deleted. Volume 60 - Page 611 The minutes normally include, between "XIX. ADJOURNMENT" and the line where "Recording Secretary" signs, a statement as to when the agenda and supplemental agenda were posted. That statement is missing in the draft minutes. Ow, commto- Le-X]S.Nexis .. ESTUARDO ARDON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent. 5.174507 SUPREME COURT OF CALIFORNIA 52 Cal. 4th 241; 255 P.3d 958; 128 Cal. Rpir. 3d 283; 2011 Cal. LEXIS 7681 July 25, 2011, Filed SUBSEQUENT HISTORY: Reported at Ardon. (Estuardo) v. City of Los Angeles, 2011 Cal. LEXIS 8082 (Cad., Judy 25, 2011) PRIOR HISTORY: Superior Court of Los Angeles County, No. BC363959, Anthony J. Mohr, Judge. Court of Appeal, Second Appellate District, Division Three, No. B201035. Ardon v. City ofLos Angeles, 174 Cal. App, 41h 369, 94 Cal. Rptr. 3d 245, 2009 Cal, App. LEXIS 860 (Cal. App. 2d Dist, 2009) SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY Plaintiff filed a class action lawsuit challenging a city's telephone users tax (TUT) and seeking refund of funds collected under the TUT over the previous two years. The trial court granted the city's motion to strike all class allegations. (Superior Court of Los Angeles County, No. BC363959, Anthony .1. Mohr, Judge.) The Court of Appeal, Second Dist., Div. Three, No. B201035, affirmed the trial court's order refusing to certify the class. The Supreme Court reversed thejudgment of the Court of Appeal and remanded the case for further proceedings. The court held that a class claim by taxpayers for a tax refund against a local governmental entity is permissible under Gov. Code, § 910, in the absence of aspecific tax refund procedure set forth in an applicable governing claims statute. Although Cal. Const., art. X111, § 32, prevents courts from expanding the methods for seeking refunds expressly provided by the Legislature, neither Woosley v. State of California, which concerned the interpretation of statutes other than § 910, nor art. X111, § 32, applies to the determination of whether § 910 permits class claims that seek the refund of local taxes. The important public policy behind art. XIII, § 32, is to allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted. However, this policy does notjustify precluding legitimate class Proceedings for the refund of allegedly illegal taxes and was satisfied here because § 910 allowed the present taxpayer class claim. (Opinion by Chin, J., with Cantil- Salcauye, C. J., Kennard, Baxter, Werdegar, Corrigan, JJ., and Jackson, J.," concurring.) [*2421 * Associate Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES (1) Taxpayers' Remedies § 6 - -Tax Refunds- - Claims.- -Gov. Code, ¢910, does not specifically apply to tax refunds, but to all claims against govermnental entities. (2) Taxpayers' Remedies § 6- -Tax Refunds- - Claims.- -Gov. Code, § 905, subcl. (a), exempts from Gov. Code, § 910, claims under the Revenue and Taxation Code or other statute prescribing procedures for the refund of any tax. (3) Taxpayers' Remedies § 6 - -Tax Refunds- - Claims-- Statutory Requirements -- Substantial Compliance. - -A two -part test has been adopted for determining whether a claim against a government entity satisfies Gov. Code, § 910: is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance? (4) Taxpayers' Remedies § 6- -Class Claims- - Claimants.-- With respect to class claims under Gov. Code, § 910, the word "claimant" refers to the class itself, not to an individual class member. (5) Taxpayers' Remedies § 6- -Class Claims- - Identifying Information -- Substantial Compliance.- -Gov. Code, § 910, was not intended to thwart class relief. Because satisfaction of § 910's procedural requirements obliges a representative class plaintiff to supply information detailing his or her name, address, and other specified information, any information beyond this requirement to identify the class itself is sufficient to satisfy the "some compliance" test. Beyond this, the sufficiency of the identifying information must be measured by the substantial compliance test. A claim substantially complies with a claims statute if the parties have stated sufficient information to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit. (6) Taxpayers' Remedies § 6 - -Tax Refunds- - Procedure,- -Cal. Const- art, X111, §32,compels an action for tax refunds against the state to be brought in the manner that the Legislature specified under the statutes at issue. (7) Taxpayers' Remedies § 6 - -Tax Refunds- - Class Action Claims.- -The Supreme Court's holding in City of San Jose v. Superior Court should not be extended to include claims for tax refunds. However, the Supreme Court did not mean that City ofSan Jose forbids all class action claims [ *2431 for tax refunds; rather, Woosley v. State of California precludes class claims for tax refunds where the Legislature has explicitly set forth procedures for obtaining those refunds and has refused to authorize class claims under those procedures. (8) Taxpayers' Remedies § 6 - -Tax Refunds- - Class Action Claims -- Filing of Administrative Refund Claim - -Local Public Entities.--With respect to a refund of locally adopted taxes, the Supreme Court specifically disagrees with the overbroad statement that class- action -type lawsuits seeking a refund of fees and taxes are barred unless each plaintiff has first filed an administrative refund claim with the city. The statement is especially incorrect as applied to claims against local public entities that are not governed by specific tax refund statutes. (Disapproving to the extent inconsistent:I7oward Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242 (93 C'a1.1?p1r.2c1 7421.) (9) Taxpayers' Remedies § 6 - -Tax Refunds- - Class Action Claims. - -A class claim by taxpayers for a tax refund against a local governmental entity is permissible under Gov. Code, § 910, in the absence of a specific tax refund procedure set forth in an applicable governing claims statute. (10) Taxpayers' Remedies § 6- -Tax Refunds- - Class Action Claims. - -Ali that Woosley v. State of California demands is that a court first examine the claims statutes at issue in a claim for a taxpayer refund to determine whether the Legislature contemplated a class claim under the applicable California code. (11) Taxpayers' Remedies § 6 - -Tax Refunds- - Class Action Claims - -Local Public Entities.- - Class claims for taxpayer refunds against local governmental entities brought under Gov. Code, ¢ 910, are permitted in California. (12) Taxpayers' Remedies § 6 - -Tax Refunds- - Class Action Claims - -Local Telephone Use Tax. - -Cal. Const., art. XIII, § 32, simply prohibits courts from preventing or enjoining the collection of any tax during the pendency of litigation challenging the tax. Article XIII, § 32, does not purport to limit a court's authority to fashion a remedy if it determines a tax is illegal, including its authority to issue an injunction against further collection of the challenged tax. The important public policy behind arl. XIII, § 32, is to allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted. This policy is intended to ensure the uninterrupted flow of tax revenue, so that refunds that are authorized must be processed in orderly procedures that the Legislature allows. [ *244] That policy favoring fiscal responsibility, however, does not justify precluding legitimate class proceedings for the refund of allegedly illegal taxes. Thus, Gov. Code, § 910, allowed a taxpayer class, claim challenging a city's telephone users tax (TUT) and seeking refund of funds collected under the TUT. [Cal. Forms ofPleoding and Practice (2011) ch. 464, Public Enloies and Officers: California Tort, Claims Act, § 464.23; 9 Witkin, Summary of Cal. Law (1 Oth ed. 2005) Taxation, §§ 292, 297; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 239.] COUNSEL: Wolf Haldenstei n Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & LaDuca, Jon Tostud; Chimicles & Tikellis, Nicholas E. Chimicles and Timothy N. Mathews for Plaintiff and Appellant. Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert; Cuneo Gilbert & LaDuca, Jon Tostrud; Chimicles & Tikellis and Timothy N. Mathews for Willy Granados and Jon W. McWilliams as Amici Curiae on behalf of Plaintiff and Appellant. Patricia Sturdevant; Wilentz, Goldman & Spitzer, Kevin P. Roddy; and Timothy Bittle for NASCAT, Howard .Jarvis Taxpayers Association, Consumer Federation of California and Utility Reform Network as Amici Curiae on behalf of Plaintiff and Appellant. Patricia Sturdevant; Shepherd, Finkehnan, Miller & Shah, Patrick A. Klingman; Huskinson, Brown, Heidenreich & Carlin and Paul E. Heidenreich for Consumer Action, Consumer Federation of California and NASCAT' as Amici Curiae on behalf of Plaintiff and Appellant. Edward IA. Teyssier; and Joseph D. Henchman for the Tax Foundation as Amicus Curiae on behalf of Plaintiff and Appellant. Alan M. Mansfield for Utility Consumers' Action Network as Amicus Curiae on behalf of Plaintiff and Appellant. Rockard J. Delgadillo and Carmen Trutanich, City Attorneys; Noreen S. Vincent and Michael Nagle, Assistant City Attorneys, Brian I. Cheng, Deputy City Attorney; Orrick Herrington & Sutcliffe, William Molinski, Valerie M. Goo, Frank D. Rorie; Colantuono & Levin, Michael G. Colantuono, Sandra J. Levin, Amy C. Sparrow and Erwin M. Benedicto for Defendant and Respondent. Dennis J. Herrera, City Attorney (San Francisco), Julie Van Nostern, Chief Tax Attorney, and Peter J. Keith, Deputy City Attorney, for League of California [ *245] Cities, California State Association of Counties and California Special Districts Association as Amici Curiae on behalf of Defendant and Respondent. Raymond G. Fortner, Jr., County Counsel (Los Angeles) and Albert Ramseyer, Principal Deputy County Counsel, for the County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent. JUDGES: Opinion by Chin, J., with Cautil- Sakauye, C. J., Kennard, Baxter, Werdegar, Corrigan, JJ., and Jackson, J., concurring. OPINION BY: Chin OPINION 1** *2851 [* *960] CHIN, J. - -In this case, we must decide whether Government Code section 910 (section 910) ' allows taxpayers to file a class action claim against a municipal governmental entity for the refund of local taxes. L1 City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455 [115 Cal. Rptr. 797, 525 P.2d 7011(Cily of San Jose), we held that section 910 permits a litigant to bring a class claim against a local government. We later held in Woosley v. Stale of California (1992) 3 Cal.4ih 758, 792 [13 Cal. Rpir. 2d 30, 838 P.2d 758] (Woosley), however, that class claims to recover tax refunds are not permitted in certain situations because article XIII, section 32 of the California Constitution prevents the judiciary "from expanding the methods for seeking tax refunds expressly provided by the Legislature." As we explain, neither Woosley, which concerned the interpretation of statutes other than section 910, nor article .X111, section 32 of the California Constitution, applies to our determination of whether section 910 permits class claims that seek the refund of local taxes. We therefore conclude that the reasoning of City of San Jose, which permitted a class claim against a municipal government in the context of an action for nuisance under section 910, also permits taxpayers to file a class claim seeking the refund of local taxes under the same statute. I All statutory references are to the Govenunent Code unless otherwise noted. FACTS AND PROCEDURAL BACKGROUND Plaintiff Estuardo Ardon (Ardon) is a resident of defendant City of Los Angeles (City). In October 2006, Ardon filed a class action lawsuit on behalf of himself and similarly situated individuals challenging the City's telephone users tax (TUT) and seeking refund of funds collected under the TUT over the previous two years. Ardon asserted that the City's municipal code exempts all amounts paid for telephone service from the TUT to the extent that those amounts are also exempt from the federal excise tax (FET). Ardon contends that since the FET was improperly collected, so too was the TUT. In December 2006, Ardon received a notice from the Los Angeles City Attorney rejecting his attempt to present a tax refund claim on behalf of a class due to tack of tegal standing. [ *2461 Ardon's complaint against the City sought, inter alia, injunctive and declaratory relief to prevent continued unlawful collection of the TUT, declaratory relief alleging the unconstitutional amendment of the TUT by the Los Angeles City Council, ' money had and received in unjust enrichment, and violation of the due process clauses of the Fourteenth and Fifth Amendments to the United Slales Constitution.. [ ** *286] The complaint sought [* *961] certain remedies, including certification as a class action, an accounting of the TUT funds collected by the City, and return of money wrongfully taxed. 2 Subsequent to Ardon's filing his complaint, the City amended Los Angeles Municipal Code section 21.1.3 to remove all references to the FET. The city council passed the amendment to the ordinance on January 9, 2007. (L.A. Ord. No. 178219.) In the Court of Appeal, the City contended that Ardon must 'file the refund claim under Los Angeles Municipal Code section 21.07 and former section 21.1.2 governing claims for refund of overpayment of business or use taxes. As the court observed, however, those code sections do not apply to Ardon's claim that the City's TUT was an illegal tax. The City does not renew its claim here. Therefore, we do not address any issues involving preemption of the municipal code provisions in this case. The City demurred to Ardon's complaint and moved to strike all class action allegations on the grounds that Woosley prohibited Ardon from filing a claim against the City for the refund of taxes on behalf of a putative class. Instead, the City argued, each rneinber° of the alleged class must file a government claim with the City before Ardon could proceed with a class action lawsuit. The superior court granted the City's motion to strike all class allegations. It also partially overruled and partially sustained the demurrer without leave to amend, and stayed other causes of action. Ardon filed a timely appeal from the interlocutory order striking the class allegations. A divided Court of Appeal affirmed the trial court's order refusing to certify the class. In so doing, the panel specifically rejected its own reasoning and contrary holding in a factually similar case, County of Los Angeles v. Superior Court (2008) 159 Cal.App.4th 353 [71 Cal. Rpir. 3d 485] (Oronoz). The Court of Appeal dissent would have 'followed the opinion in Oronoz, which held that under City of San Jose's construction of section 910, a "claimant" could be an entire class as well as an individual. (Oronoz, supra, atp. 367.) We granted review to resolve the conflict in the appellate courts regarding permissible class claims tinder section 910. DISCUSSION Before 1959, taxpayer and other claims against the state, local, and municipal governments were governed by nryriad state statutes and local ordinances. Finding this system too complex, the Legislature enacted the Government Claims Act (the Act), which established astandardized procedure forbringing claims againstlocal governmental entities. (Stats. 1959, [ *247] ch. 1724, § 1, p. 4133, enacting Gov. Code, former § 700 etseq. [replacing more than 150 separate procedures for directing claims against local governmental entities]; now SS 900 el seq.)' 3 Section 910 states: "A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: [¶] (a) The name and post office address of the claimant. [T (b) The post office address to which the person presenting the claim desires notices to be sent. [T (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [1] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [TI] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (1) The amount claimed if' it totals less than ten thousand dollars ($ 10,000) as of the date of presentation of the claim ... together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be 'included in the claim. However, it shall indicate whether the claim would be a limited civil case." (1) Section 910 does not specifically apply to tax refunds, but to all claims against governmental entities. (See City of San Jose, supra, 12 Cal.3d alp. 454.) The purpose of the claims statutes "is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation." (Id. at p. 455.) As originally proposed, the standardized procedures of [ ** *287] the Act embodied in section 910 would not have applied to "[c]laims under the Revenue and Taxation Code or other provisions of law prescribing procedures for the refund ... of any tax ... ." (Recommendation and Study relating to The Presentation of Claims Against Public Entities (Jan. 1959) 2 Cal. Law Revision Com. Rep. (1959) p. A -12, italics added [proposed former § 703, subd. (a)].) (2) However, the Legislature specifically rejected this proposal and instead enacted former section 703, subdivision (a) (now § 905, subd. (a)), which exempted from section 910 "[c]laims under the Revenue and Taxation Code or other statute prescribing procedures for the refund ... of any tax ...." (Stats. 1959, eh. 1724, § 1, pp. 4133 -4134, italics added.) (3) The issue in City ofSan Jose was whether a class claim could satisfy the claim requirements of section. 910, or whether such class [* *962] action claims could not be maintained against governmental entities. (City of San Jose, supra, 12 Cal.3d at p. 455.) The plaintiffs had filed a class claim against the City of San Jose under section 910, alleging that aircraft noise, dust, vapors, and vibrations arising from operations at the San Jose Municipal Airport were a nuisance and diminished the market value of their property. (City ofSan Jose, al pp. 453, 455.) This court adopted a two -part test for determining whether the claim satisfied section 910: "Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance ?" (City of San Jose, at pp. 456 ?457.) [ *248] (4) In addressing the section 910 class claim, City of Scan Jose concluded that the word "claimant" referred to "the class itself," not to an individual class member. The court "reject[ed] the suggested necessity for filing an individual claim for each member of the purported class." (City of San Jose, supra, 12 Cal.3d alp. 457.) The court reasoned that "[t]o require such detailed information in advance of the complaint would severely restrict the maintenance of appropriate class actions -- contrary to recognized policy favoring them." (Ibid.; see Code C'iv. Proc., § 382; see also Vasquez v, Superior Court (1971) 4 C'al.3d 800 [94 Cal. Rptr. 796, 484 P.2d 964].) (5) The court did not believe that section 910 was "intended to thwart class relief." (City of San Jose, supra, 12 Cal.3d at p. 457.) Because satisfaction of section 910's procedural requirements obliged a representative class plaintiff to supply information detailing his or her name, address, and other specified information, any information beyond this requirement to identify the class itself was suffrcientto satisfy the" 'some compliance' test." (City of San ,Jose, supra, 12 Cal. 3d at p. 457.) ?Beyond this, the sufficiency of the identifying information must be measured by the substantial compliance test." (Ibid.) A claim substantially complies with a claims statute if the parties have stated sufficient information "to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit." (Id at p. 456.) (6) Woosley was a constitutional challenge to the state's vehicle license fees and use taxes imposed on passenger vehicles sold outside California. The numerous issues included the question of whether the trial court had erred in certifying the claim as a class claim. Woosley held that article XIII, section 32 ofthe California Constitution compelled an action for tax refunds against the state to be brought in the [ ** *288] manner that the Legislature specified under the statutes at issue. (Woosley, supra, 3 Cal. 4th atp. 789.) a The court concluded that statutes dictating the procedural requirements for obtaining refunds of vehicle license fees and use taxes did not authorize class action claims. (Woosley, at p. 788; see Veh. Code, § 42231; Rev. & Tax. Code, § 6901 et seq., 6486.) Rather, the language of those statutes indicated that "a claim for a refund of vehicle license fees must be filed by 'the person who has paid the erroneous or excessive fee or penalty, or his agent on. his behalf' ... [T]he term'person' does not include a class, and a class representative who files a claim on behal f of all others similarly situated, without the knowledge [ *2491 or consent of such other persons, is not the agent of the members of the class." (Woosley, supra, at p. 790, citation omitted, quoting Veh. Code, § 42231.) Because article XIII. section 32 of the California Constitution requires tax refund claims to be made in the specific manner prescribed by the Legislature, we concluded that the particular statutes at issue in Woosley did not authorize class claims. 4 Article XIII, section 32 of the California Constitution reads, ?No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature." [* *963] Regarding class -based refunds for use taxes, Woosley observed that "[a]n examination of the entire statutory scheme that governed requests for refunds of sales and use taxes when Woosley's claim was fled in 1977 reveals ... that class claims were not contemplated. If the [State Board of Equalization] denied a claim, that entity was required, within 30 days, to 'serve notice of its action on the claimant in the manner prescribed for service of notice of a deficiency determination.' ([Rev. & Tax. Codej § 6906.) [Revenue and Taxation Code] fsfection 6486, in turn, provided in 1977 that the [State Board of Equalization] shall give written notice of a deficiency determination'to the retailer or person storing, using, or consuming tangible personal property,' either by mail or by'delivering it to the person to be served.' The language of section 6486 suggests that notice must be given to each individual taxpayer. No mention is made of notice to a class representative. The requirement that notice of the denial of a claim must be given to each individual taxpayer thus is inconsistent with the use of a class claim." (YVoosley, supra, 3 Cal. 4th at pp. 790 -791.) Woosley, therefore, addressed the limited question of whether Vehicle Code section 42231 and Revenue and Taxation Code sections 6901 et seq. and 6486 permitted class actions by citizens seeking refunds of taxes and fees ,fr onz the state. When construed in light of articleXlll, section 32 o/the California Conslilulion, we concluded that the Legislature did not intend to authorize class claims for the refund of fees and taxes under those particular statutes. (Woosley, at pp. 789- 792.) (7) Woosley also stated that "the holding in City of San. Jose ... should not be extended to include claims for tax refunds." (Woosley, supra, 3 Col. 4th at p. 789.) However, we did not mean that City of San Jose forbids all class action claims for tax refunds; rather, Woosley precluded class claims for tax refunds where the Legislature has explicitly set forth procedures for obtaining those refunds and has refused to authorize class claims under those procedures. [ ** *289] Specifically, Woosley criticized "[s]everal decisions of the Court of Appeal [that] extended the holding in City of San ,rose to permit tine filing of class claims seeking tax refunds, reasoning by analogy to the claims statute construed in City of San Jose that the existing ax- refund statutes could and should be interpreted to authorize the filing of class claims." (Id. at p. 788, italics added.) It is important to note that none of the Court of Appeal [ *250] decisions this court criticized in Woosley either construed or applied section 910. (SeeSchoderbekv. Carlson (1980) 113 Cal. App. 3d 1029, 1033 [170 Cal. Rptr. 4007 [property tax statute]; Lattin v. Franchise Tax Board (1977) 75 Cal. App. 3d 377, 381 [142 Cal. Rptr. 1301 [income tax statute]; Santa Barbara Optical Co. v. Slate Bd. of Equalization (1975) 47 Cal. App. 3d 244, 249 [120 Cal. Rptr. 6091 [sales tax statute]; Javor v. State Bd. of Equalization (1977) 73 Cal. App. 3d 939, 948 [141 Cal. Rptr. 226] [sales tax statute].) (8) Several cases decided after Uloosley have concluded that cuticle X111, section 32 of the California Constitution. bars class claims and class actions for the refund of locally adopted taxes absent specific state statutory authority. (See Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 74 -75 [65 Cal. Rptr. 3d 716] [sustaining demurrer to plaintiffs class action challenging city's transient occupancy hotel tax]; Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.41h 242, 249 [93 Cal. Rpir. 2d 7421 [rejecting taxpayer suit challenging a municipal home occupation ordinance]; Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 961 -962 [46 Cal. Rptr. 2d 266] [ rejecting property owner's action challenging a city property tax].) As Oronoz observed, however, these cases are distinguishable, because they all considered statutes or municipal ordinances enacted to provide specific procedures for filing tax claims against governmental entities -- procedures that are not applicable or required in this case. (Oronoz, supra, 159Cal.App.4thotp. 365, fn. 9.) In addition, like the Oronoz court, we specifically disagree with the overbroad statement in Howard Jarvis Taxpayers Assn. that "class- action -type lawsuits seeking a refund of fees and taxes are barred [* *9641 unless each plaintiff has first filed an administrative refund claim with the City." (Howard Jarvis Taxpayers Assn., at p. 249.) The statement is especially incorrect "as applied to claims against local public entities that are not governed by specific tax refund statutes." (Oronoz, supra, at p. 365, fn. 9.) The Court of Appeal here determined that the applicable claims statute in the present case is Government Code section 910. Ardon asserts that section 910 claims against government entities are to be presented by the claimant or by a person acting on his or her behalf and that, as noted above, in City ofSan Jose this court held that the word "claimant" in section 910 must be equated with the class itself and therefore permits the filing of class claims. Ardon also claims that the Court of Appeal improperly extended the reach of cuticle X111, section 32 of the Californian Constitution "beyond state entities and their agents to a local government." (9) By contrast, the City asserts that equating the term "claimant" with "the class itself' is inconsistent with the strict compliance standard set forth in Woosley, supra, 3 Cal. 41h 758, for tax refund claims. But, as Ardon [ *251] observes, Woosley does not require strict compliance with claims statutes in tax refund cases. The case requires that a court analyze the claims [ ** *290] statutes before it to determine whether the Legislature intended to allow class claims under those statutes. Here, as City of San Jose, supra, 12 Cal. 3d 447, held, a class claim by taxpayers for a tax refund against a local governmental entity is permissible under section 910 in the absence of a specific tax refund procedure set forth in an applicable governing claims statute. Contrary to the City's argument, Woosley simply does not apply here because section 910 allows the class claim. (10) Our conclusion recognizes the limitations of both City of San Jose and Woosley in addressing the availability of class claims for the tax refunds in this case. City of San Jose simply held that section. 910 does not preclude class claims against government entities. (City of San. Jose, supra, 12 Cal. 3d a6 pp. 456 -457.) The action there did not involve a challenge to a local tax, but instead asserted nuisance and inverse condemnation claims. (Ibid.) All that Woosley demands is that a court first examine the claims statutes at issue in a claim for a taxpayer refund to determine whether the Legislature contemplated a class claim under the applicable California code. (Woosley, supra, 3 Cal.4th at pp. 790 -792.) The court did not analyze the applicability of section 910, and, in contrast to the City's contention, there is no reason to construe section 910 in light of Woosley. As we have discussed, the relevant governing claims statute here is section 910. In contrast to the two statutes at issue in Woosley, section 910 states specifically that a "claim shall be presented by the claimant or by a person acting on his or her behalf." While the Act contains an exemption for "[cllaims under the Revenue and Taxation Code or other statute prescribing procedures for the refund ... of any tax," the claim here did not involve any applicable municipal code or statute governing claims for refunds. (Gov. Code, � 905, subd. (a), italics added.) Oronoz held that class claims are permitted under section 910. ( Oronoz, supra, 159 Cal.App.4th at p. 367.) (11) Therefore, class claims for taxpayer refimds against local governmental entities brought under section 910 are also permitted in California. In addition, the City contends that article XIII, section 32 of the California Constitution mandates that the Legislature must expressly authorize actions for tax refunds, and section 910 does not expressly authorize class claims. Article X711, section 32 of the California Constitution states, "No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature." Despite the first sentence's reference to tax actions against the [ *252] state, the City asks us to read the second sentence of article XllJ section 32 to also [* *965] preclude tax actions against local governments in the absence of express legislative authorization. But even assuming article XIII, section 32 is equally applicable to tax actions against local governments, we have already determined that section 910 provides the necessary legislative authorization for class claims of taxpayer refunds against local governmental entities. Indeed, there is nothing in the constitutional provision that would preclude the present action. (12) The City further asserts that the public policy underlying article XILI, section 32 precludes the present action. In Woosley, we held that article XIII, section 32 "rests on the premise that strict legislative control over the manner in which tax 1** *2911 refunds may be sought is necessary so that governmental entities may engage in fiscal planning based on expected tax revenues. [Citation]" (Woosley, supra, 3 Cal.4th at p. 789.) The City argues that this policy is thwarted where the local government is faced with a potentially huge liability in the form of a class action. But article XIII, section 32 simply prohibits courts from "prevent[ ing] orenjoin[ing] the collection of any tax" during the pendency of litigation challenging the tax. (Col. C'onsz., co t. XIII, § 32.) In fact, article X7II, section 32 does not purport to limit a court's authority to fashion a remedy if it determines a tax is illegal, including its authority to issue an injunction against further collection of the challenged tax. As Ardon observes, we have held that the important public policy behind article XIII, section 32 " 'is to allow revenue collection to continue during litigation so that essential public services dependent on the funds are not unnecessarily interrupted.' " (State Bd. of Gyualization v. Satperior Court (1985) 39 Cal. 3d 633, 638 [217 Cal. Rpir. 238, 703 P.2d ]131 J; quoting Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277, 283 [165 Cal. Rph. 122, 611 P.2d 463).) This policy is intended to ensure (lie uninterrupted now of tax revenue, so that refunds that are authorized must be processed in orderly procedures that the Legislature allows. That policy favoring fiscal responsibility, however, does not justify Precluding legitimate class proceedings for the refund of allegedly illegal taxes, and is indeed satisfied here because section 910 allows the present taxpayer class claim. CONCLUSION bVoosley, supra, 3 Cal.4th 758, does not apply to a potential taxpayer class claim brought under section 910. In addition, neither the explicit language nor the policy underlying article X111, section 32 applies to prevent the present action. City ofSan Jose, supra, 12 Cal. 3d 447, is entirely consistent ["253] with our conclusion here. Class claims for tax refunds against a local govermnerntal entity are permissible under section 910 in the absence of a specific tax refund procedure set forth in an applicable governing claims statute. Consequently, we reverse the Court of Appeal judgment, and remand the matter for further proceedings consistent with our opinion. Cantil- Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Corrigan, J., and Jackson, J.,' concurred. * Associate Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article V1, section 6 of the California Constitution. PON& IMMU4c - Brown, Leilani i0+01- From: Torres, Michael Sent: Friday, June 15, 2012 1:36 PM To: Torres, Michael Cc: Kiff, Dave; Brown, Leilani; Houston, Rob Subject: Class Action Claims (File: Al2 -00220 Charter Update 2012/2013) CyAutold: 2219918 CycomPath: C:\cycomsgl\ CyMatterld: 2208262 CyMultiRecMemos: N CyStaffld: MT Good Afternoon Chairman Watkins & Committee Members, At yesterday's meeting, the Committee asked for background information regarding the proposed change to Charter Section 1114 (Claims and Demands.) barring all class action claims relating to taxes and fees. This proposal originates from a recent California Supreme Court decision involving the City of Los Angeles. (Ardon v. City of Los Angeles (2011) 52 Cal.4th 241.) This case involved a class action lawsuit by a resident seeking a refund of funds collected under the city's telephone users tax. The city argued that the applicable laws did not allow a class action suit and instead required each class member to file a claim with the city prior to proceeding as a class. The Court held that, "[c]lass claims for tax refunds against a local government entity are permissible... in the absence of a specific tax refund procedure set forth in applicable governing claims statute." (Id. at 253.) In the wake of this decision, it was recommended that cities adopt provisions expressly barring class claims related to taxes and fees. The proposed revision to Charter Section 1114 would prohibit class actions related to taxes and fees and would work in conjunction with the City's Claim Procedure codified in Newport Beach Municipal Code Chapter 1.06. Thank you, Michael Torres I Acting - Assistant City Attorney City of Newport Beach I Office of the City Attorney 3300 Newport Blvd. I Newport Beach, CA 92658 (949) 644-31311 (949) 644 -3139 (FAX) I mtorres(anewoortbeachca.eov Confidentiality Notice: This email may contain material that is confidential, privileged and /or attorney work product for the sole use of the addressee. Further, this email is protected under the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510 -2522. Any review by, reliance, or distribution by others or forwarding to others without express permission of the author is strictly prohibited. If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Moreover, any such inadvertent disclosure shall not compromise or waive the attorney - client privilege as to this communication. 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