Filed 6/30/20 San Diegans for Open Government v. Public Facilities etc. CA4/1

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SAN DIEGANS FOR OPEN GOVERNMENT,

Plaintiff and Appellant,

v.

PUBLIC FACILITIES FINANCING AUTHORITY OF THE CITY OF SAN DIEGO et. al.,

Defendants and Respondents.

D069751

(Super. Ct. No. 37-2015-00016536- CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.

Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and Appellant.

Office of the San Diego City Attorney, Mara W. Elliott, City Attorney, David J. Karlin, Assistant City Attorney and Meghan Ashley Wharton, Deputy City Attorney, for Defendants and Respondents.

This case is on remand from the California Supreme Court to determine what sort of relief plaintiff San Diegans for Open Government (SDOG) is seeking, and whether it may proceed under Code of Civil Procedure section 526a or any other statutory provision. (San Diegans for Open Government v. Public Facilities Financing Authority of City of San Diego (2019) 8 Cal.5th 733, 746-747 (San Diegans II).)

FACTUAL AND PROCEDURAL BACKGROUND

On March 17, 2015, respondents City of San Diego (the City) and Public Facilities Financing Authority (PFFA) adopted San Diego Ordinance No. 0-20469 and PFFA Resolution No. FA-2015-2 (Bond Approvals) which authorized issuance of 2015 Refunding Bonds (Bonds). The Bonds were to refund and refinance the remaining amount owed by the City on bonds issued in 2007 with respect to construction of the baseball stadium at Petco Park.

On May 18, 2015, SDOG filed a reverse-validation complaint that challenged the validity of the Bonds under sections 860 et seq. and 1060 et. seq. SDOG alleged that it is a nonprofit taxpayer organization and that at least one of its members is a resident of the City. SDOG alleged, among other claims, that “[a]t least one member of the financing team for the Bond Approvals and the 2015 Bonds has an interest in one or more contracts for the sale of the 2015 Bonds” and that this conflict of interest violated Government Code section 1090 (section 1090). The complaint seeks a judgment determining or declaring that the Bond Approvals were null and void because they did not comply with all laws; an injunction prohibiting issuance of the Bonds; attorney fees; and “[a]ny and all further relief that [the court] may deem appropriate.”

Prior to trial on the merits, SDOG agreed that all substantive claims other than the alleged conflict of interest would be settled in a related case. We ruled against SDOG in that related case, San Diegans for Open Government v. City of San Diego (2015) 242 Cal.App.4th 416. SDOG dismissed those claims from its complaint. The only claim remaining is based on the alleged conflicts of interest. It explained the alleged conflicts as follows: three financial institutions were hired for the Bond financing team, although those entities already acted as fiduciaries to the City on other financial matters, and the City would allow existing financial brokers to purchase the Bonds through a negotiated sale instead of through a public sale to the highest bidder.

Before commencing trial on the merits of SDOG’s section 1090 claim, the trial court asked for and received briefing from the parties with respect to SDOG’s standing. After considering the parties’ briefing and the argument of counsel, the trial court determined, as a matter of law, that because SDOG was not a party to the bond transaction, it lacked standing to pursue a section 1090 challenge. The trial court dismissed SDOG’s complaint, and judgment was entered in the City’s favor.

SDOG appealed, and we reversed the trial court’s decision, concluding that SDOG had standing under Government Code section 1092 (section 1092) to sue the city to invalidate the Bond Approvals and Bonds allegedly made in violation of section 1090. (San Diegans for Open Government v. Public Facilities Financing Authority of City of San Diego (2017) 16 Cal.App.5th 1273 (San Diegans I).) The Supreme Court granted review and reversed our decision, holding that section 1092 did not provide plaintiff a private right of action because it was not a party to the contracts. (San Diegans II, supra, 8 Cal.5th at p. 743.) As stated above, the Supreme Court has remanded the case to us to decide what sort of relief SDOG is seeking and whether SDOG can proceed under section 526a or any other statutory provision. (Id. at pp. 746–747.)

The Bonds were issued and sold in May 2016, before we issued our decision in San Diegans I, according to the City. SDOG also confirms the sale in its postreview supplemental brief. At oral argument before the Supreme Court, SDOG “suggested for the first time that it was only seeking disgorgement of payments received by the allegedly conflicted officers for their role in administering the bond issuance.” (San Diegans II, supra, 8 Cal.5th at p. 746.) SDOG now states that it no longer seeks to enjoin issuance and sale of the Bonds, but seeks instead disgorgement by the interested individual or individuals. The City responds that disgorgement would necessarily require voiding of the Bond Approvals and a declaration that the Bonds are void. We agree, and conclude that SDOG has no standing to invalidate the Bond Approvals and Bonds, as we explain below.

 

DISCUSSION

1. Standard of Review

The facts are not disputed. We are called here to interpret various statutes. We review this issue of law de novo. (California Taxpayers Action Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115, 125 (California Taxpayers).)

2. Section 526a

Section 526a permits tax-paying individuals to sue public entities and officials “to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to” a local agency’s funds or property. (§ 526a, subd. (a); see also Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1249 (Weatherford); San Diegans II, supra, 8 Cal.5th at p. 737, fn. 3.) The “primary purpose” of the statute “is to ‘enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.’ [Citation.]” (Blair v. Pitchess (1971) 5 Cal.3d 258, 267–268.)

“[T]here seems to be no dispute that a nonparty taxpayer whose action meets the requirements of Code of Civil Procedure section 526a can sue under that section alleging a government contract violates section 1090.” (San Diegans II, supra, 8 Cal.5th at

p. 745.) “[A] nonparty taxpayer can invoke the substantive prohibitions of section 1090 in an action authorized by Code of Civil Procedure section 526a.” (San Diegans II, at

pp. 743–744, citing Terry v. Bender (1956) 143 Cal.App.2d 198, 208 and Gilbane Building Co. v. Superior Court (2014) 223 Cal.App.4th 1527, 1531 (Gilbane).) Neither Terry nor Gilbane, however, involved the sale, offer for sale or issuance of municipal bonds, which are subject to a specific limitation in section 526a.

Section 526a, subdivision (b) states, “provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.” As stated by the Supreme Court, “[t]here appear to be sound policy reasons underlying that prohibition.” (San Diegans II, supra, 8 Cal.5th at

p. 743, fn. 11.) ” ‘[T]he lack of a prompt validating procedure will impair the public agency’s ability to operate. The fact that litigation may be pending or forthcoming drastically affects the marketability of public bonds . . . . We feel that the possibility of future litigation is very likely to have a chilling effect upon potential third party lenders, thus resulting in higher interest rates or even the total denial of credit, either of which might well impair the county’s ability to maintain an adequate . . . program.’ [Citation.]” (McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1167–1168 (McLeod), cited by San Diegans II, at p. 743, fn. 11; see also Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 843 (Friedland) [purpose of municipal bond validation actions].)

SDOG states it is no longer seeking enjoinment of the Bond sales, because the Bonds have already been issued and sold. It now asserts that it wants disgorgement by the allegedly conflicted public officials. Disgorgement would require a finding that the Bond Approvals and Bonds were null and void because any contract entered into by a public official who had a conflict of interest is not merely voidable, but void. (California Taxpayers, supra, 12 Cal.App.5th at p. 142; Gilbane, supra, 223 Cal.App.4th at p. 1533; Thomson v. Call (1985) 38 Cal.3d 633, 646, fn. 15 (Thomson); accord, Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1073 [contract is “void from its inception” when public official has conflict of interest].) “California courts have generally held that a contract in which a public officer is interested is void, not merely voidable.” (Thomson, at p. 646, fn. 15.) Seeking disgorgement would be an “end-run” around section 526a, subdivision (b)’s prohibition on enjoining bonds. (Cf. San Diegans II, supra, 8 Cal.5th at p. 743, fn. 11 [“Construing section 1092 to permit nonparties to sue to avoid contracts for section 1090 violations would effectively provide an end-run around [section 526a, subdivision (b)’s] bar on claims seeking to enjoin municipal bond issuances”].) A declaration that the Bond Approvals and Bonds were null and void is equivalent to a restraint on the issuance and sale on the bonds, because it would invalidate the municipal backing of the Bonds, their essential feature, and thus is barred by section 526, subdivision (b).

SDOG contends that the injunction prohibition of section 526a, subdivision (b) does not apply here for three reasons: (1) the statute’s restraint against injunctions applies only to public entities, not taxpayers; (2) subdivision (b) applies to remedies, not standing; and (3) even if the restraint applies, it does not apply to the declaratory relief that SDOG is now requesting.

A. Applicability of Section 526a, Subdivision (b)

SDOG contends that only public entities are prohibited from enjoining the sale or issuance of municipal bonds. It contends that a 2019 amendment to section 526a clarified this rule. Both the law and the legislative history of this amendment show that the purpose was to clarify that paying any tax assessed by a government entity gives the taxpayer standing to sue that entity for wasteful or illegal expenditures and that noncitizens could sue, and not to otherwise change the substance of the statute. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 689, fn. 9 (Fistes).) The amendment to section 526a clarified what taxes must be paid to give a taxpayer standing to sue but did not change the legal consequences of past conduct or impose new or different liabilities. (Id. at p. 692.)

Section 526a, as enacted, consisted of three lengthy sentences covering a number of details pertaining to actions against governmental officers, the scope of actions, and a prohibition on the restraint of municipal bonds. It was not a “model of clarity.” (See Weatherford, supra, 2 Cal.5th at p. 1253, conc. opn., Cantil-Sakauye, C.J.) The amendment separated the sentences into separate subdivisions and added a fourth subdivision. The second sentence of the old statute became the new separate subdivision (b): “This section does not affect any right of action in favor of a local agency, or any public officer; provided, that no injunction shall be granted restraining the offer for sale, sale or issuance of any municipal bonds for public improvements or public utilities.”

(§ 526a, subd. (b), Stats. 2018, ch. 319 (Assem. Bill No. 2376), § 1, eff. Jan. 1, 2019.)

SDOG contends that by placing the second sentence of the law into a separate subdivision, the Legislature intended to make a distinction between the rights of taxpayers in subdivision (a) and the rights of public entities in subdivision (b). SDOG provides no legal authority for that proposition, and the legislative history of the amendment shows otherwise. The amendment was in response to the Chief Justice’s urging, in her concurrence in Weatherford, that the Legislature amend section 526a to make clear what sort of taxes a plaintiff had to have paid in order to sue to enjoin a public entity’s alleged wasteful or illegal expenditures. (Fistes, supra, 38 Cal.App.4th at p. 689, fn. 9 [citing legislative history]; Weatherford, supra, 2 Cal.5th at p. 1253.) The question in Weatherford was if a plaintiff had to have paid, or been liable for, property taxes in order to have standing to sue under section 526a, and if not, what taxes the plaintiff had to have paid or been liable for. (Weatherford, at p. 1245.) The court held that a plaintiff had to have paid or been liable for any tax that the defendant entity had assessed, not just property taxes. (Ibid.)

The Legislature responded to the Chief Justice’s call in Weatherford and amended the first sentence of the statute to clarify the multiplicity of taxes, payment of which would be sufficient to provide standing to a taxpayer to bring an action to restrain or recoup an illegal or wasteful public expenditure. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2376 (2017-2018 Reg. Sess.) June 12, 2018, pp. 2–4 (Analysis). ) The report for the Senate Judiciary Committee stated that the amendment was in response to the Supreme Court’s Weatherford case, which noted the lack of clarity in the types of taxes that were sufficient to confer standing on the taxpayer to sue the local agency, and cited extensively from Chief Justice Cantil-Sakauye’s concurrence in discussing the need to modernize and clarify the statute that had been written over 100 years earlier. (Analysis, at pp. 2–4.) The Legislature amended the statute by separating the three long sentences into separate subdivisions and adding a fourth subdivision expanding the target defendants to any local agency and requiring that the plaintiff reside within the jurisdiction of the defendant local agency. (§ 526a, subd. (d); Analysis, p. 4.)

We conclude that the amendment to section 526a did not change or “clarify” the prohibition on injunctions on bonds and bond sales. The prohibition applies to all taxpayers.

B. Declaratory Relief

SDOG contends that the prohibition on an injunction of the sale or issuance of municipal bonds refers only to the remedy sought and not to standing. The purpose of section 526a, however, is to grant standing to taxpayers to challenge illegal governmental actions. (Blair v. Pitchess, supra, 5 Cal.3d at pp. 267–268.) “The primary purpose of this statute . . . is to ‘enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.’ ” (Ibid.; Weatherford, supra, 2 Cal.5th at p. 1251.) The statute specifies the actions that a taxpayer can bring—”[a]n action to obtain a judgment, restraining and preventing any illegal expenditure . . . .” by a public agency—and the actions that a taxpayer cannot bring—an action for an injunction “restraining the offering for sale, sale, or issuance of any municipal bonds . . . .” (§ 526a, subds. (a), (b).) The statute does not extend standing to those who do not otherwise satisfy general standing requirements to restrain the issuance or sale of municipal bonds. (See Weatherford, at p. 1249.) This is consistent with the Supreme Court’s ruling that a taxpayer who is not a party to a contract has no standing to sue to void the contract under section 1092. (San Diegans II, supra, 8 Cal.5th at p. 743 & fn. 11.)

The declaratory relief that SDOG requests is, “A judgment determining or declaring that the Bond Approvals do not comply with all applicable laws in at least some respect, rendering the Bond Approvals null and void, invalid, or otherwise without legal effect.” A declaratory judgment that a governmental action was null and void would result in the same interference with and disruption of an action as an injunction of the action. There is no relevant distinction between a judgment that the Bond Approvals were void and an injunction restraining the sale or issuance of bonds. A cause of action for declaratory relief is “superfluous” to causes of action challenging the validity of a local entity’s financing contract. (California Taxpayer, supra, 12 Cal.App.5th at p. 150.)

In tax cases, where statutory provisions prohibit the enjoinment of tax collection, “the propriety of declaratory and injunctive relief should be judged by essentially the same standards.” (Samuels v. Mackell (1971) 401 U.S. 66, 72; see also Honeywell, Inc. v. State Board. of Equalization (1975) 48 Cal.App.3d 907, 912 [whether fixtures are subject to sales tax]; Casey v. Bonelli (1949) 93 Cal.App.2d 253, 254–255 [seeking declaration that Board of Equalization cannot collect sales or use tax from dissolved corporation]; Daar v. Alvord (1980) 101 Cal.App.3d 480, 484–485 [suit to have tax declared illegal barred by statute prohibiting injunction or other legal or equitable remedy to prevent collection of taxes].) In Honeywell, the court said, “Where a statute prohibits the granting of an injunction or writ of mandamus to prevent collection of a tax . . . an action for a declaration that the tax is not legally collectible would circumvent the law and, accordingly, declaratory relief will be refused.” (Honeywell, at p. 912, emphasis added.) Although these cases involve taxation and statutes other than section 526a, we conclude that the reasoning is applicable here. Granting a declaration that the Bond Approvals are null and void, or a finding that the Bonds were void, would be equivalent to an injunction restraining the issuance, sale or offer for sale of bonds. We avoid construction of a statute that renders any part of the statute meaningless, inoperative, or superfluous. (Ferra v. Loews Hollywood Hotel, LLC (2019) 40 Cal.App.5th 1239, 1246.)

SDOG cites the case of Van Atta v. Scott for the proposition that taxpayers have standing to bring actions for declaratory relief and other remedies under section 526a. (Van Atta v. Scott (1980) 27 Cal.3d 424, 459, superseded by change in California Constitution as stated in In re York (1995) 9 Cal.4th 1133, 1143, fn. 7.) While true generally, this statement from Van Atta was not in the context of subdivision (b) and does not affect the prohibition therein. That statement was made in the context of liberally construing the statute to serve its legislative intent: giving taxpayers standing to challenge illegal and invalid expenditures of funds by local entities. The court “liberally constru[ed] section 526a to foster its remedial purpose” in Van Atta to permit declaratory relief so the plaintiffs could challenge bail-setting procedures. (Id. at pp. 449–450.) We here interpret the statute to carry out another of its explicitly stated legislative purposes: not to restrain the offering for sale, sale or issuance of municipal bonds. (§ 526a, subd. (b).) As in Van Atta, we look to the purpose to be served by a taxpayer’s suit, not the form of its complaint, in determining the statute’s reach. This case is not inconsistent with Van Atta.

Nor is our opinion inconsistent with the opinion in Weatherford, as SDOG claims. Our decision that section 526a does not give standing to a taxpayer to seek a declaration that the Bond Approvals and Bonds are invalid and void follows the plain language of section 526a prohibiting a taxpayer from “restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities.” (§ 526a, subd. (b).) Our extension of subdivision (b)’s restriction to actions for declaratory relief is not ” ‘an unduly constrained view of the statute’s requirements,’ ” (Weatherford, supra, 2 Cal.5th at p. 1250), but is a conclusion that ensures that the purpose of the statute is followed.

 

C. Conclusion

In sum, when granting standing to taxpayers to challenge illegal or wasteful actions, the Legislature carved out an exception, choosing not to give taxpayers standing to enjoin the issuance, offer for sale or sale of municipal bonds. (§ 526a, subd. (b).) We conclude that this prohibition extends to any action that would result in invalidating bonds, regardless of the form of the action or the particular remedy sought.

3. Sections 860 and 863

SDOG contends that if the validation statutes apply in this case, it has standing to seek disgorgement under section 863, which permits any interested party to pursue a reverse-validation proceeding. The validation statutes, sections 860 through 870,

” ‘provide an expedited process by which certain public agency actions may be determined valid and not subject to attack.’ [Citations.] The validation statutes apply to a matter when ‘any other law’ authorizes their application . . . .” (Golden Gate Hill Development Co., Inc. v. County of Alameda (2015) 242 Cal.App.4th 760, 765–766.) Government Code section 53511 declares the validation statutes apply to “an action to determine the validity of [a local agency’s] bonds, warrants, contracts, obligations or evidences of indebtedness.” (Gov. Code, § 53511, subd. (a).) The validity of the City’s Bonds is subject to the validation statutes.

Validation proceedings, section 860 et seq., enables a public agency to commence an action to validate any matter that another law authorizes to be validated. (§ 860.) If the agency does not bring a validation action, “any interested person may bring an action within the time and in the court specified by Section 860 to determine the validity of such matter.” (§ 863.) “A case brought by an interested person is frequently called a ‘reverse validation’ action. [Citation.]” (McGee v. Torrance Unified School District (2020) 49 Cal.App.5th 814 (McGee II).)

We determine whether a statute creates a private right of action by inquiring if “the Legislature has clearly manifested an intent to create a private right of action.” (San Diegans II, supra, 8 Cal.5th at p. 742; Animal Legal Defense Fund v. California Exposition and State Fairs (2015) 239 Cal.App.4th 1286, 1294; Vikco Insurance Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62–63.) Section 863 creates an action to challenge the validity of bonds generally but does not include a private right of action under section 1090. An interested party does not have standing to pursue a cause of action under section 863 unless the party otherwise has standing to state that cause of action. (San Diegans II, at p. 742: Animal Legal Defense Fund, at p. 1294; Vikco, at pp. 62-63.) Neither section 1092 nor section 526a permit a taxpayer to sue directly on a conflict of interest claim. Section 863 cannot provide standing when those separate standing provisions provide none.

Standing to pursue conflict-of-interest claims has been found in some reverse-validation proceedings. In those cases, however, standing was predicated on a statute other than section 863. (See California Taxpayers, supra, 12 Cal.App.5th at pp. 144–145; McGee v. Balfour Beatty Construction, LLC (2016) 247 Cal.App.4th 235, 247–248 (McGee I); Davis v. Fresno Unified School Dist. (2015) 237 Cal.App.4th 261, 297.) These cases all involved validation of lease-leaseback financing arrangements under the Education Code. None involved municipal bonds or section 526a, subdivision (b)’s prohibition on enjoining the sale of municipal bonds. The California Taxpayer court discussed section 526a in finding standing for taxpayers to bring a section 1090 challenge in a reverse-validation action. (California Taxpayers, at p. 141.) The McGee I court did not discuss the basis for concluding that the plaintiff had standing, but the plaintiff argued in McGee II that his conflict of interest claims were in personam taxpayer claims brought pursuant to section 526a and thus fell outside the validation statutes. (McGee II, supra, 49 Cal.App.5th at p. 819.) The issue of standing was not presented to the court in Davis, but that court said in dictum that the taxpayer had standing to pursue his conflict-of-interest claim under section 1092. (Davis, at p. 297, fn. 20.) The Supreme Court implicitly disapproved this dictum in San Diegans II, supra, 8 Cal.5th at p. 743, 744.

The cases that have found standing to pursue section 1090 claims in reverse-validation cases have relied on statutes other than section 863 to create the interested party’s standing. SDOG argues that it is an interested person under section 863—with which we agree—but has not otherwise provided us with any discussion of or legal authority holding that section 863 creates standing for an interested party to bring a direct claim for conflict of interest in a reverse-validation action. We conclude that section 863 does not create standing that does not otherwise exist.

4. Section 1060

Section 1060 authorizes actions for declaratory relief. The complaint for declaratory and injunctive relief was brought pursuant to sections 860 et seq. and 1060 et seq. SDOG has never previously argued that section 1060 gave it standing to pursue this action–not in the trial court, nor on the first appeal, nor in the Supreme Court. It has forfeited this argument by failing to assert it before. Generally, parties cannot argue theories on appeal that they did not present in the trial court. “Such new arguments may be deemed waived, based on common notions of fairness.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.)

Further, SDOG’s argument consists of restating the statute and asserting it is a ” ‘person interested’ in the Petco Park refinancing.” ” ‘ ” ‘Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.’ [Citation.]” [Citation.] Nor is an appellate court required to consider alleged error where the appellant merely complains of it without pertinent argument. [Citation.]’ ” (Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1480.)

In any event, section 1060 does not create standing. Standing is one of the criteria that must be separately determined in deciding if a party can file an action for declaratory relief. (See D. Cummins Corp. v. United States Fidelity & Guaranty Co. (2016) 246 Cal.App.4th 1484, 1489.) ” ‘One cannot analyze requested declaratory relief without evaluating the nature of the rights and duties that the plaintiff is asserting, which must follow some recognized or cognizable legal theories that are related to subjects and requests for relief that are properly before the court.’ ” (Ibid.) Like section 863, section 1060 does not create standing that does not otherwise exist.

 

DISPOSITION

We conclude that SDOG may not pursue its claim of conflict of interest under section 526a or any other statutory provision. The judgment below is affirmed. Costs to be awarded to defendants.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

HALLER, J.