Filed 12/3/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JOHN E. HUMPHREVILLE,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES et al.,

Defendants and 

Respondents.

 B299132

 (Los Angeles County

 Super. Ct. No. BS174384)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mitchell L. Beckloff, Judge. Affirmed.

Blood Hurst & O’Reardon, Timothy G. Blood, Leslie E. 

Hurst, Jennifer L. Macpherson; Consumer Watchdog, Jerry 

Flanagan, Pamela Pressley, Benjamin Powell; Ajalat, Polley, 

Ayoob & Matarese, Richard J. Ayoob and Gregory R. Broege for 

Plaintiff and Appellant.

Jonathan M. Coupal, Timothy A. Bittle, and Laura E. 

Dougherty for Howard Jarvis Taxpayers Association as Amicus 

Curiae on behalf of Plaintiff and Appellant.
2

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Assistant City Attorney, Scott Marcus, Chief, Civil 

Litigation Branch, Blithe S. Bock, Assistant City Attorney, Sara 

Ugaz, Deputy City Attorney, for Defendants and Respondents.

* * * * * *

Under the California Constitution, a city may impose a 

“general tax” only if a majority of voters within its jurisdiction so 

approve. (Cal. Const., art. XIII C, §§ 1, subd. (a), 2, subd. (b).) 

For these purposes, a “tax” is defined as “any levy, charge, or 

exaction of any kind imposed” (id., § 1, subd. (e)), but excludes 

charges “imposed for a specific government service or product 

provided directly to the payor that is not provided to those not 

charged, and which does not exceed the reasonable costs to the 

local government of providing the service or product” (id., § 1, 

subd. (e)(2)). Here, a city-owned utility charges rates to its 

customers that do not “exceed the reasonable costs” of providing 

the utility service, but at the end of each fiscal year, the city 

routinely invokes its power under the city’s charter to, via 

multiple steps, transfer the “surplus” in the utility’s revenue 

fund—that is, the amount left over after paying all “outstanding 

demands and liabilities” which, if transferred, will not have a 

“material negative impact” on the utility’s “financial condition” 

(L.A. Charter, § 344(b))—to the city’s general fund. Does this 

routine practice by the city constitute a “tax” that requires voter 

approval? We conclude that it does not. Accordingly, we affirm 

the dismissal of a lawsuit challenging the practice as being an 

unlawful “tax.”
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts

The City of Los Angeles (the City) owns and operates the 

Los Angeles Department of Water and Power (the DWP). Among 

other things, the DWP supplies electricity to approximately 1.4 

million residential and business customers. The DWP is 

governed by the Los Angeles Board of Water and Power 

Commissioners (the Board). 

Pursuant to the City’s charter, the rates for the DWP’s 

electrical service are set by City ordinance. (L.A. Charter, § 676.) 

The two most recent ordinances governing the DWP’s electrical 

service rates took effect on September 19, 2008 and on April 15, 

2016. 

Also pursuant to the City’s charter, the City has the power 

to “direct” that any “surplus” in the DWP’s revenue fund be 

“transferred” to the City’s Reserve Fund and then to its General 

Fund. (L.A. Charter, §§ 341, 344.) For these purposes, a 

“surplus” is defined as “the amount remaining” in the DWP’s 

revenue fund “less outstanding demands and liabilities payable 

out of the fund” “at the end of the [pertinent] fiscal year.” (Id., 

§ 344(b).) Although such a transfer requires the “consent” of the 

Board (id., § 344), the Board “may withhold its consent” to such a 

transfer only “if, despite the existence of a surplus . . . , [the 

Board] finds that making the transfer would have a material 

negative impact on the [DWP’s] financial condition in the year in 

which the transfer is to be made” (id., § 344(b)(2)). Once in the 

City’s General Fund, the money may be used for a variety of 

“government expenditures and services provided to Los Angeles 

taxpayers generally, such as public works, health and sanitation, 

community development, and police and fire services.” 
4

In every year since 1971, the City has invoked its power to 

transfer a surplus from the DWP’s revenue fund. At first, the 

City annually transferred a surplus that came to approximately 

five percent of the DWP’s “gross operating revenue”; since 2010, 

the City has transferred approximately eight percent. Because 

this money is by definition a surplus in the DWP’s revenue fund, 

the City does not provide the DWP or its ratepayers with “any 

specific benefit, services, products or privileges” in exchange for 

this annual transfer. When the surplus transferred annually in 

recent years is broken down, it comes to $5.22 per month per 

DWP customer. However, the DWP does not directly passthrough the cost of this transfer of surplus to its customers with a 

line-item “City Transfer” charge; instead, the revenue that the 

City transfers as a surplus is money that would otherwise be 

spent by the DWP on longer-term investment projects, such as

“rebuild[ing]” its “aging electricity production and distribution 

infrastructure.” 

A majority of the voters in the City has never approved the 

above described practice. 

II. Procedural Background

A. The pleadings

John E. Humphreville (plaintiff) is a City resident and a 

DWP customer. 

On July 25, 2018, plaintiff sued the City, the DWP, and the 

Board (collectively, the City defendants). The operative pleading 

is now the second amended verified petition and complaint, which 

was filed on February 15, 2019.

1

1 Plaintiff’s original petition and complaint was superseded

by his filing of a first amended verified petition and complaint in 
5

In that pleading, plaintiff alleges that the City, the DWP 

and the Board annually engage in “a series of preplanned 

interrelated steps”—namely, (1) the DWP and the City agree that 

the DWP will transfer to the City a specified percentage of the 

DWP’s gross operating revenue, (2) both the DWP and the City 

budget for this transfer, (3) the DWP collects revenue from its 

customers, and (4) the City then invokes its power to transfer a 

surplus in the agreed-upon percentage. When “properly viewed 

together” as “a single amalgamated transaction,” plaintiff goes on 

to allege, the transaction “constitut[es] a tax on LADWP 

ratepayers” that requires voter approval.2 Because the City has 

not obtained the necessary voter approval, the operative pleading 

seeks (1) a declaration against the City defendants that the 

annual transfer of surplus is unconstitutional, (2) an injunction

against the City defendants prohibiting further transfers of 

surplus until a majority of voters has approved the tax, and (3) a 

writ of mandate against only the City to the same effect. Plaintiff 

also seeks attorney fees under Code of Civil Procedure section 

1021.5. 

B. Demurrer

The City defendants demurred on two grounds—namely, 

(1) plaintiff’s lawsuit is effectively an untimely challenge to the 

City’s 2008 and 2016 rate ordinances, and (2) the City’s practice 

October 2018. The trial court sustained a demurrer to the first 

amended verified petition with leave to amend. 

2 Of course, the allegation that this transaction constitutes a 

“tax” is a legal conclusion that we can and do disregard. (Roy 

Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 

Cal.5th 505, 512 (Roy Allen).) Indeed, the propriety of this legal 

conclusion is the very question presented in this appeal.
6

of transferring a surplus from the DWP is not a “tax” because, 

under Citizens for Fair REU Rates v. City of Redding (2018) 6 

Cal.5th 1 (City of Redding), “a municipality can transfer money 

from its electric utility to its general fund so long as the electric 

rate charged by the utility does not exceed the reasonable costs of 

service.” 

After a full round of briefing and a hearing at which 

plaintiff clarified that he was “not alleging that the rate [charged 

by the DWP] exceeds the cost of providing electrical service,” the 

trial court issued a six-page order sustaining the demurrer 

without leave to amend. The court cited two reasons. First, the 

court found that plaintiff’s challenge to the City’s transfer of a 

significant surplus from the DWP revenue fund every year was, 

at bottom, an accusation that the DWP’s “electric rates exceed 

the reasonable costs of [providing the] service.” Because the 

“gravamen” of this claim called for a “‘review’” of the DWP’s rates 

for electrical service, it was subject to the 120-day statute of 

limitations set forth in Public Utilities Code section 10004.5. And 

because plaintiff’s July 2018 lawsuit was filed more than 120 

days after the City’s latest 2016 rate ordinance, the lawsuit was 

untimely. Second, and alternatively, the court held that, “if”—as 

plaintiff insists—the DWP’s “charges do not exceed the 

reasonable cost of service,” then the City’s practice of transferring 

a surplus from the DWP’s revenue fund each year did not 

constitute a “tax” in light of the City of Redding’s holding that 

“budgetary transfer[s]” in such a context are “not a tax.” 

C. Appeal

Following entry of judgment, plaintiff filed this timely 

appeal.
7

DISCUSSION

Plaintiff argues that the trial court erred in sustaining the 

City defendants’ demurrer to his operative pleading. Were we to 

conclude, as have some courts, that plaintiff remains bound by 

the allegations he has included in his prior verified pleading (but 

has omitted from the operative pleading) that the DWP was 

inflating its rates by “embedd[ing]” the amount of the annual 

surplus transfer “in the amount [the DWP] charges its customers 

for electric service,” then plaintiff’s lawsuit would constitute a 

challenge to the City’s 2016 rate ordinance that is untimely 

under the 120-day statute of limitations set forth in Public 

Utilities Code section 10004.5. (Webb v. City of Riverside (2018) 

23 Cal.App.5th 244, 256 (Webb); Pub. Util. Code, § 10004.5.) But 

were we to look to the operative pleading alone and were we to 

accept plaintiff’s repeated assertions that “the rate” the DWP 

charges its customers “is perfectly fine” but leaves the DWP 

“under-fund[ed],” then this case squarely presents the following 

question: If the rate that a city-owned utility charges its 

customers does not exceed the reasonable costs of providing that 

service, does the city’s ongoing practice of transferring a portion 

of the utility’s surplus revenue to the city’s general fund

constitute a “tax” requiring voter approval under the California 

Constitution?3 

This is a question we independently review because it 

arises on appeal from a demurrer (Roy Allan, supra, 2 Cal.5th at 

3 Because we focus on whether the City’s conduct—as alleged 

in the operative complaint—constitutes a “tax” rather than 

whether it is time barred, we have no occasion to consider the 

arguments offered by plaintiff and its amicus as to why the 120-

day statute of limitations is inapplicable or unfair to apply in this 

case.
8

p. 512), because it entails interpretation of a voter-enacted 

constitutional provision (Professional Engineers in California 

Government v. Kempton (2007) 40 Cal.4th 1016, 1032, 1036-1037

(Professional Engineers)), and because it requires us to determine 

“[w]hether a statute imposes a . . . tax” subject to voter approval 

(California Building Industry Assn. v. State Water Resources 

Control Bd. (2018) 4 Cal.5th 1032, 1046 (California Building); 

City of Redding, supra, 6 Cal.5th at p. 12). In light of our 

independent review, we may affirm on any ground stated in the 

demurrer “whether or not the [trial] court acted on that ground.” 

(Carman v. Alvord (1982) 31 Cal.3d 318, 324.)

I. The Law Governing Voter Approval of Taxes

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.” (City of 

Redding, supra, 6 Cal.5th at p. 10; see also id. at pp. 10-12 

[cataloging history of initiatives]; Jacks v. City of Santa Barbara

(2017) 3 Cal.5th 248, 258-261 (Jacks) [same]; Schmeer v. County 

of Los Angeles (2013) 213 Cal.App.4th 1310, 1318-1326 [same].) 

Under the law as currently written, a “local government”—which 

includes a “city”—may adopt a “general tax” (that is, a “tax 

imposed for general governmental purposes”) only if the proposed 

tax is “submitted to the electorate and approved by a majority 

vote” (Cal. Const., art. XIII C, §§ 1, subd. (a) [defining “general 

tax”], 2, subd. (b) [setting vote requirement]), and may adopt a 

“special tax” (that is, a “tax imposed for specific purposes”) only if 

the proposed tax is “submitted to the electorate and approved by 

a two-thirds vote” (id., §§ 1, subd. (d) [defining “special tax”], 2, 

subd. (d) [setting vote requirement]). (See also id., § 1, subd. (b) 
9

[defining “local government”].) If revenue from a tax is placed in 

a city’s general fund without being earmarked for specific uses, it 

is considered a “general tax.” (Webb, supra, 23 Cal.App.5th at p. 

258; Gonzalez v. City of Norwalk (2017) 17 Cal.App.5th 1295, 

1306.)

Of course, these provisions only apply if the local 

government is seeking to levy a “tax.” (City of Redding, supra, 6 

Cal.5th at p. 12 [observing that this is the first, threshold 

question].) Since the enactment of Proposition 26 in 2010, “tax” 

has been broadly defined to encompass “any levy, charge, or 

exaction of any kind imposed by a local government.” (Cal. 

Const., art. XIII C, § 1, subd. (e); City of Redding, at p. 11 [noting 

breadth of this definition]; City of San Buenaventura v. United 

Water Conservation Dist. (2017) 3 Cal.5th 1191, 1200 (City of San 

Buenaventura) [same].) However, this definition has seven 

exceptions. One of them is pertinent here: A “tax” does not

include “[a] charge imposed for a specific government service or 

product provided directly to the payor that is not provided to 

those not charged, and which does not exceed the reasonable 

costs to the local government of providing the service or product.” 

(Cal. Const., art. XIII C, § 1, subd. (e)(2).) This exception reflects 

the practical reality that it is only when a charge for a specific 

service or product exceeds its cost that the charge “‘become[s] a 

vehicle for generating revenue’” and, hence, is a “tax.” 

(California Building, supra, 4 Cal.5th at p. 1046, quoting Jacks, 

supra, 3 Cal.5th at p. 261.) In assessing whether the charge for a 

specific service or product exceeds the costs of providing it, the 

costs allocated to each payor must also “bear a fair or reasonable 

relationship to the payor’s burdens on, or the benefits received 

from, the governmental activity.” (Cal. Const., art. XIII C, § 1, 
10

subd. (e); City of San Buenaventura, at pp. 1213-1214.) The local 

government bears the burden of proving that its proposed tax fits 

within this exception. (Cal. Const., art. XIII C, § 1, subd. (e).)

II. Analysis

The City’s alleged, ongoing practice of transferring a 

“surplus” from the DWP’s revenue fund to the City’s General 

Fund where, as also alleged, the rates charged by the DWP to its 

customers nevertheless do not exceed the costs of providing 

electricity to them, does not constitute a “tax” for three reasons.

First, the practice does not satisfy the definition of a “tax” 

under the plain language of the California Constitution. 

Although the monthly charge that the DWP—as an entity owned 

by the City—assesses its customers constitutes a “charge 

. . . imposed by a local government” and is therefore a “tax” (Cal. 

Const., art. XIII C, § 1, subd. (e)), that charge falls within the

exception to the definition of “tax” set forth above (1) because the 

amount the DWP charges its customers for electric service is “for 

a specific government service . . . provided directly to the payor” 

(here, the DWP customer) “that is not provided to” non-DWP 

customers, (2) because that charge “does not exceed the 

reasonable costs to the local government of providing th[at] 

service,” and (3) because that charge “bear[s] a fair or reasonable 

relationship to the [customer’]s burdens on, or the benefits 

received from, the governmental activity” because the rate is tied 

to each customer’s monthly usage (id., § 1, subd. (e)(2)). We know 

this because it is the very premise of this iteration of plaintiff’s 

lawsuit: In order to avoid the statute of limitations attaching to 

any challenge that the City’s surplus transfer makes the DWP’s 

rates higher than its costs, plaintiff has pled that he is “not

challeng[ing] the rate schedule from which electric bills are 
11

calculated” (italics added), and has further elaborated that he is

“not alleging that the rate [charged by the DWP] exceeds the cost 

of providing electrical service.” This may place plaintiff’s lawsuit 

outside the statute of limitations bar set by Public Utilities Code, 

section 10004.5, but it simultaneously puts the DWP’s monthly 

charge outside the definition of a “tax.” Plaintiff urges that we 

should construe voter initiatives liberally. This is true (DeVita v. 

County of Napa (1995) 9 Cal.4th 763, 776), but it does not 

empower us to ignore the plain language of the Constitution 

(People v. Cruz (1974) 12 Cal.3d 562, 566; Professional Engineers,

supra, 40 Cal.4th at p. 1037). Under that plain language, the 

DWP’s monthly charge for electric service—even though a portion 

of that charge eventually ends up in the City’s General Fund—is 

not a “tax.”

Second, this conclusion is the one that best accords with the 

purpose behind our Constitution’s restrictions on local taxation—

namely, to stop “local governments” from “extract[ing] even more 

revenue from California taxpayers . . . .” (Voter Information 

Guide, Gen. Elec. (Nov. 2, 2010) text of Prop. 26, § 1, subd. (e), p. 

114, italics added; see Historical Notes, 2B West’s Ann. Cal. 

Const., foll. art. XIII A, § 3, p. 297.) This purpose can be 

implicated where a city imposes a franchise fee on a private 

utility, which is then passed-through to each customer as a lineitem on their monthly bills; in that situation, the city is using the 

utility as a proxy and the monthly fee is a “tax” unless the 

amount of that line-item fee is reasonably related to the benefit of 

the franchise. (Jacks, supra, 3 Cal.5th at pp. 254, 269; accord, 

Zolly v. City of Oakland (2020) 47 Cal.App.5th 73, 88 [city’s 

imposition of a franchise fee on a third-party waste hauler that is 

passed onto taxpayers may be a “tax”].) This purpose can also be 
12

implicated when a city transfers money from its city-owned 

utility to itself when those transfers require the utility to 

increase what it charges its customers and, in so doing, causes

the utility’s rates to exceed the costs of actually providing the 

pertinent service because, in that situation, the interfund 

transfer is having a bottom-line effect on the taxpayer. (City of 

Redding, supra, 6 Cal.5th at p. 15 [so noting]; cf. Howard Jarvis 

Taxpayers Assn. v. City of Roseville (2002) 97 Cal.App.4th 637, 

638, 648 [city’s imposition of “in-lieu franchise fee” on its cityowned utility is a “tax” under article XIII D when it increases 

utility rates and fee does not correlate with costs]; Howard Jarvis 

Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 

918, 927-928 [same].) 

But is this purpose of protecting taxpayers from hidden 

taxes implicated where, as plaintiff concedes here, the interfund 

transfer does not affect the amount the utility charges and does 

not otherwise cause the utility’s rates to exceed its costs? We 

conclude the answer is “no” because, in this situation, the 

“California taxpayer” is entirely unaffected by the subsequent 

interfund transfer. Plaintiff urges that the DWP is getting the 

raw end of the deal in the subsequent interfund transfer because 

the DWP is getting “zero” in exchange for the “surplus” that the 

City removes from the DWP’s revenue account each year and the 

transfers effectively “under-fund[] the [DWP] to the benefit of the 

City.” What the City is doing may be unwise management of the 

municipal utility, but alleged mismanagement that does not 

affect the taxpayers does not constitute a “tax.”4 What is more, 

4 Plaintiff colorfully likens the City to a “local strongman” 

whose annual transfer of surplus funds is akin to the coerced 

payment of “protection money” by a local “shopkeeper.”
13

plaintiff’s argument would convert the constitutional protection

against local taxation without voter approval into a tool for 

examining whether each and every transfer of funds from a cityowned utility to its city had a corresponding benefit to the utility, 

on a line item-by-line item basis, even if those transfers had no 

effect on the utility customer/taxpayer. This goes beyond the 

purpose of those protections.

Finally, our Supreme Court’s decision in City of Redding

strongly suggests that the City’s yearly transfers of surplus funds

do not constitute a “tax” when they do not cause the DWP’s rates 

to exceed its costs of providing electricity. In City of Redding, the 

city transferred money from its public utility to its general fund 

“to compensate” the city for “the costs of services that other city 

departments provide[d] to the utility.” (City of Redding, supra, 6 

Cal.5th at p. 4.) However, the rate the utility charged its 

customers “did not exceed the reasonable costs of providing 

electric service.” (Id. at p. 5.) In this situation, City of Redding

concluded that the “interfund transfer [was] not a tax.” (Id. at p. 

14.) The court explained:

“The question is not whether each cost in the 

[utility’s] budget is reasonable. Instead, the question 

is whether the charge imposed on ratepayers exceeds 

the reasonable costs of providing the relevant 

service.”

(Id. at p. 17.) Because the “[t]otal rate revenue was less than the 

concededly reasonable costs of providing electric service,” City of 

Indulging this analogy confirms our point. If, as plaintiff alleges 

here, the shopkeeper does not increase its prices and effectively

“eats” the cost of the protection itself, the shopkeeper’s customer 

is in no way being “taxed” by the thug’s racketeering. 
14

Redding concluded that the interfund transfers from the city 

utility to the city were not “taxes” that required voter approval. 

(Id. at p. 18.) 

As plaintiff points out, City of Redding is not identical to 

this case. There, the interfund transfer was to compensate the 

city for services it was providing to the city-owned utility, and the 

city-owned utility was able to pay for the transfer out of money 

taken from sources other than revenue from ratepayers. (City of 

Redding, supra, 6 Cal.5th at pp. 5-6, 15.) But neither of these 

distinctions render City of Redding’s reasoning inapplicable here: 

At its core, City of Redding held the transfers of funds from a 

city-owned utility to a city’s general fund are not a “tax” when 

“the charge imposed on ratepayers” does not “exceed[] the 

reasonable costs of providing the relevant service.” (Id. at p. 17.) 

That holding applies with full force to this case.

Plaintiff offers what boil down to three categories of further 

arguments against this conclusion.

First, plaintiff urges that the City’s annual transfer of 

surplus funds from the DWP to itself constitutes a “tax” under 

the plain language of the Constitution. Specifically, plaintiff 

argues that the interfund transfer does not fall into the exception 

for “charge[s] imposed for a specific government service or 

product” because the City is not providing any “specific 

government service or product” to the DWP (or, for that matter, 

to the DWP’s customers like plaintiff). For support, plaintiff 

weaves in the more general proposition that this charge must be 

a “tax” because “taxes are imposed for revenue purposes, rather 

than in return for a specific benefit conferred . . . .” (Sinclair 

Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866, 874, 

superseded in part by Proposition 218.) With this argument, 
15

plaintiff would have us look to whether the public utility got 

something in exchange when the City transferred the surplus 

funds, regardless of whether the utility’s customer felt the effects 

of that subsequent transfer. This is precisely the argument 

rejected by City of Redding, supra, 6 Cal.5th 1, when it held that 

what matters is “whether the charge imposed on ratepayers

exceeds the reasonable costs,” and “not whether each cost in the 

[utility’s] budget is reasonable.” (Id. at p. 17.) City of Redding

construes the constitutional text to focus on the financial 

relationship between the ratepayer and the city-owned utility, and 

not—as plaintiff urges—between the city-owned utility and those 

to whom the city-owned utility transfers its revenue. We must 

adhere to this construction.

Second, plaintiff asserts that we must look to the “economic 

reality of the taxed transaction” (Microsoft Corp. v. Franchise Tax 

Bd. (2006) 39 Cal.4th 750, 760; accord, Commissioner v. Court 

Holding Co. (1945) 324 U.S. 331, 334 [“[t]he incidence of taxation 

depends upon the substance of a transaction”]), which in this case 

shows that the City, through the four-step process alleged in the 

operative complaint, is taking money paid by the DWP’s 

customers for electric service and using it for general city 

services. Plaintiff invokes the age-old maxim that courts look to 

the substance of a transaction and not its form (Civ. Code, § 3528 

[“The law respects form less than substance”]; e.g., Epstein v. 

Hollywood Entertainment Dist. II Bus. Improvement Dist. (2001) 

87 Cal.App.4th 862, 872 [applying maxim]), as well as the 

corollary “step transaction doctrine” that looks to the overall 

effect of a taxpayer’s transaction to see whether it has effected a 

taxable transfer of ownership (e.g., Shuwa Investment Corp. v. 

County of Los Angeles (1991) 1 Cal.App.4th 1635, 1648-1653). 
16

Plaintiff is correct that the substance or “economic reality” is 

what matters in assessing whether a particular series of 

transactions imposes a “tax.” But the City’s multi-phase 

machinations in no way alter the economic reality that the DWP’s 

customers are getting a service commensurate with its cost 

regardless of any behind-the-scenes transfers of funds effected by 

the City. Because the effect on the ratepayer is what matters

(City of Redding, supra, 6 Cal.5th at p. 17), there is no “tax.”

Lastly, plaintiff contends that the City has deliberately 

engaged in Machiavellian-esque manipulations in order to “pad[]

its general fund” without first obtaining voter approval. The 

nefariousness or deviousness of the City’s motives, however, 

cannot turn what is not a “tax” into a “tax.” (E.g., Rider v. 

County of San Diego (1991) 1 Cal.4th 1, 10 [“the possible 

improper motivations of the Legislature . . . are immaterial to 

questions involving the validity of such legislation”]; County of 

L.A. v. Superior Court (1975) 13 Cal.3d 721, 726 [same].) That is 

because “good or bad faith” of a public entity in adopting a law 

“does not affect the practical, substantive impact of [its] actions 

on the electorate.” (County of Kern v. T.C.E.F., Inc. (2016) 246 

Cal.App.4th 301, 323.)

* * *

Because plaintiff will be bound in any future amended 

complaints by the same verified allegations that doom his claims 

now (Webb, supra, 23 Cal.App.5th at p. 256), he cannot cure these 

defects by amendment and the trial court properly sustained the 

demurrer without leave to amend. (Accord, T.H. v. Novartis 

Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
17

DISPOSITION

The judgment is affirmed. The City defendants are entitled 

to their costs, if any, on appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST