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Filed 3/11/21 Silva v. Humboldt County CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KAREN SILVA et al.,

Plaintiffs and 

Respondents,

v.

HUMBOLDT COUNTY,

Defendant and 

Appellant.

 A160161, A160264

 (Humboldt County

 Super. Ct. No. CV-180425)

Humboldt County (County) voters approved a measure to tax 

commercial cultivators of marijuana, and the County’s Board of Supervisors 

(Board of Supervisors or Board) later amended it. A group of challengers, 

including respondent Karen Silva, sued appellant County to overturn the

amendments, and the trial court agreed that the amendments had 

impermissibly broadened the scope of the tax. On appeal, the County argues 

that the trial court was procedurally barred from considering the challenge 

and erred on the merits. We disagree and affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

The Board of Supervisors placed on the November 2016 ballot 

Measure S, a proposed tax on commercial cultivators of marijuana. The 

measure passed, and the Commercial Marijuana Cultivation Tax became 
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operative on January 1, 2017. (Humboldt Co. Finance, Revenue and 

Taxation Code, § 719-15, hereafter Finance Code.) 

Measure S allows the Board of Supervisors to amend the law or 

approve enforcement regulations promulgated by the County’s administrative 

officer so long as the action “does not result in an increase in the amount of 

the tax or broaden the scope of the tax.” (Finance Code, § 719-9.) The Board 

of Supervisors amended Measure S on June 6, 2017, and again on April 3, 

2018, and these amendments are the subject of this litigation. 

Respondent Silva owns property in Humboldt County. No one 

cultivated cannabis on the property in 2017. The County nonetheless sent 

her an invoice of $40,000 in commercial cannabis cultivation taxes under 

Measure S for the year 2017–2018. Silva paid the invoice. The County sent 

an invoice of $54,025 for the year 2018–2019, and Silva again paid the 

invoice. 

In May 2018, three unincorporated associations filed a combined 

petition for writ of mandate and a complaint for injunctive and declaratory 

relief.1 Silva was added as a petitioner/plaintiff in a first amended 

petition/complaint. The parties later stipulated that Silva had standing to 

assert the claims alleged against the County. 

The parties ultimately asked the trial court to resolve five issues 

relating to the amendments, three of which are at issue in this appeal. 

The first of these issues was whether the amendments impermissibly 

broadened the scope of the tax by extending its reach from cultivators to 

property owners. As originally adopted, Measure S provided that “each 

1 The original petitioners/plaintiffs were HUMMAP, the Humboldt 

Cannabis Taxpayers’ Association, and the Humboldt Voters’ Association. All 

three associations later stipulated to dismissal from the action without 

prejudice. 
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person engaged in legally authorized commercial marijuana cultivation

within the unincorporated area of Humboldt County shall pay an annual tax 

of $1 per square foot of outdoor cultivation area, $2 per square foot of mixedlight cultivation area or $3 per square foot of indoor cultivation area.” (Italics 

added.) The amendments provided that “each property owner whose property 

is subject to a commercial marijuana cultivation permit shall pay an annual 

tax of $1 per square foot of outdoor cultivation area, $2 per square foot of 

mixed-light cultivation area or $3 per square foot of indoor cultivation area 

regardless of whether or not marijuana is actually grown on such property.” 

(Italics added.) 

The second issue was whether the amendments impermissibly 

broadened the scope of the tax by expanding the taxable property from areas 

actually “cultivated” to all areas “permitted” for cultivation. As passed by 

voters, Measure S defined “cultivation area” as “the sum of the permitted 

area(s) of marijuana cultivation as measured around the perimeter of each 

discrete area of marijuana cultivation on a single premises, as defined herein. 

Area of marijuana cultivation is the physical space where marijuana is grown 

and includes, without limitation, garden beds or plots, the exterior 

dimensions of hoop houses or green houses, and the total area of each of the 

pots and bags containing marijuana plants on the premises.” The 

amendments changed the definition of “cultivation area” to mean “the 

cultivation area stated on the commercial marijuana cultivation permit 

issued by the Humboldt County Planning and Building Department.” 

The third issue was whether the amendments expanded the scope of 

the tax by changing the time when the taxes start to accrue. Under 

Measure S, taxes were to “begin to accrue on the date on which a person 

becomes engaged in legally authorized commercial marijuana cultivation in 

accordance with the applicable provisions of this Code and all other 
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applicable state and federal laws and regulations.” The amendments 

removed this sentence and replaced it with one stating, “For purposes of this 

Chapter, taxes shall be owed for each and every year in which a commercial 

marijuana cultivation permit is issued by the Humboldt County Planning 

and Building Department.” 

Following briefing and a hearing, the trial court ruled in Silva’s favor 

on all three issues.2 Thus, it found that the amendments impermissibly 

increased the scope of the tax by expanding its application from those 

engaged in cultivation to all property owners subject to a cultivation permit, 

by expanding the taxable areas from those under cultivation to the entire 

area covered by the permit, and by expanding its application to people who 

have obtained a permit but may not have started to cultivate marijuana

under that permit. 

The trial court issued a peremptory writ of mandate and concluded that 

the other causes of action were moot, and the County appealed from both the 

writ and the judgment. The appeals were assigned two different appeal 

numbers, and this court consolidated the appeals on the County’s request. 

After the County appealed, the Board of Supervisors in October 2020

again amended Measure S to change the definition of who is subject to the 

tax (October 2020 amendments). As a result of these further amendments, 

2 The court ruled in favor of the County on two other issues. Measure S 

provided that the tax would be collected “biennially in the same manner as 

other taxes fixed and collected by the County of Humboldt” (italics added), 

and the measure was amended to provide that the tax shall be collected “in 

the same or similar manner as other taxes fixed and collected by the County 

of Humboldt.” The court concluded that removing the confusing word 

“biennially” was akin to correcting a scrivener’s error and did not 

impermissibly alter the timing of the collection of the tax. The trial court 

further concluded that the amendments did not impermissibly expand the 

scope of the tax by taxing those who were not complying with federal law. 

Because Silva did not file a cross-appeal, these issues are not before us.
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the tax now applies to “each person issued a commercial marijuana 

cultivation permit.” 

II.

DISCUSSION

A. The Trial Court Was Not Procedurally Barred From Considering the 

Challenge to the Board’s Amendments.

For the first time on appeal, the County raises several procedural 

arguments, none of which persuade us.

1. The Doctrine of Exhaustion of Administrative Remedies Does 

Not Apply.

The County first contends that this action is barred because Silva failed 

to exhaust her administrative remedies, a question we review de novo. 

(Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 380 

(Plantier).) Even assuming the County did not forfeit the issue by failing to 

raise it below and by stipulating to Silva’s standing, we conclude the 

contention lacks merit.

Parties must exhaust any available administrative remedies before 

resorting to the courts. (Plantier, supra, 7 Cal.5th at pp. 382−383.) This 

exhaustion requirement applies “ ‘where a claim is cognizable in the first 

instance by an administrative agency alone’ ” and “ ‘judicial interference is 

withheld until the administrative process has run its course.’ ” (Farmers Ins. 

Exchange v. Superior Court (1992) 2 Cal.4th 377, 390, quoting United 

States Western Pacific Railroad Co. (1956) 352 U.S. 59, 63.) “ ‘Under this 

rule, an administrative remedy is exhausted only upon “termination of all 

available, nonduplicative administrative review procedures.” ’ ” (Plantier, at 

p. 382.) “The doctrine favors administrative autonomy by allowing an agency 

to reach a final decision without interference from the courts.” (Id. at p. 383.) 

The requirement that administrative remedies be exhausted is jurisdictional 

in California and not a matter of judicial discretion. (Hill RHF Housing 
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Partners, L.P. v. City of Los Angeles (2020) 51 Cal.App.5th 621, 631, review 

granted Sept. 16, 2020, S263734 (Hill RHF).)

The County first contends that “[b]efore suing, one opposing a tax must 

present her objections at the public hearing called for that purpose — this is 

named ‘issue exhaustion.’ ” (E.g., Hill RHF, supra, 51 Cal.App.5th at 

pp. 632–634.) In Hill RHF, for example, property owners challenged the 

establishment of multiple business improvement districts created to levy 

assessments on real property in those districts. (Id. at pp. 626–627.) The 

establishment of such districts is governed by “a comprehensive procedure 

cities must follow.” (Id. at p. 627, citing Sts. & Hy. Code, § 36600 et seq.; Cal. 

Const., art. XIII D.) The procedure “include[d] opportunities for property 

owners in proposed assessment districts to state their objections to proposed 

assessments, and a requirement that those objections be considered before 

levying an assessment.” (Hill RHF, supra, 51 Cal.App.5th at p. 627.) The 

petitioners were served with written notice of the hearings where they could 

“create a record of the reasons for their objection.” (Hill RHF, supra, 

51 Cal.App.5th at pp. 627, 629; Cal. Const., art. XIII D, § 4, subd. (c).) 

Because the petitioners had not availed themselves of the legally proscribed 

“comprehensive protest and hearing process,” the court concluded that they 

had not exhausted their administrative remedies. (Hill RHF, at p. 632.) 

Here, by contrast, the County identifies no such legal process where 

Silva was required to create a record of her objections to the County’s 

amendments to Measure S. The County argues that challengers “were 

required to present their objections — identifying the issues they would 

litigate — during at least one of the Supervisors’ hearings on” their 

amendments. But Plantier makes clear that parties are not required to 

exhaust an “inadequate” remedy, and a remedy is inadequate “unless it 

‘establishes clearly defined machinery for the submission, evaluation and 
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resolution of complaints by aggrieved parties.’ ” (Plantier, supra, 7 Cal.5th at 

p. 384.) It may be true, as the County claims, that the Board of Supervisors 

“could have addressed the Challengers’ objections before it proposed 

Measure S.” The challengers, however, oppose the amendments to the 

measure. And while the Board of Supervisors may have held hearings on the

proposed amendments, there is no indication that at these hearings the 

Board was required to evaluate or resolve complaints by aggrieved parties. 

The County further contends that the challengers failed to exhaust 

remedies under the refund procedures of the Revenue and Taxation Code. 

True enough, “[a] taxpayer ordinarily must pay a tax before commencing a 

court action to challenge the collection of the tax,” a rule “commonly known 

as ‘pay first, litigate later.’ ” (County of Los Angeles v. Southern Cal. Edison 

Co. (2003) 112 Cal.App.4th 1108, 1116.) But Silva did pay the tax she 

challenges. And while it is certainly true that a taxpayer is required to seek 

a refund from a county assessment appeals board when seeking an 

assessment reduction or rebate (Williams & Fickett v. County of Fresno

(2017) 2 Cal.5th 1258, 1264–1265), here Silva challenged the underlying legal 

basis for assessing a tax against her, not the amount of the assessment. 

The County’s exhaustion argument fails.

2. The County Waived Other Procedural Arguments by 

Stipulating in the Trial Court that Silva Had Standing.

The County waived its remaining procedural arguments by stipulating 

in the trial court that Silva had standing and asking for the trial court to rule 

on issues. “The doctrine of waiver ordinarily prevents a party from arguing 

for the first time on appeal questions that were not presented to the trial 

court. [Citations.] The doctrine of invited error prevents a party from 

asserting an alleged error as grounds for reversal when the party through its 

own conduct induced the commission of the error. [Citations.] Related to 
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these doctrines is the doctrine of theory of trial: ‘Where the parties try the 

case on the assumption that a cause of action is stated, that certain issues 

are raised by the pleadings, that a particular issue is controlling, or that 

other steps affecting the course of the trial are correct, neither party can 

change this theory for purposes of review on appeal.’ ” (County of Los 

Angeles v. Southern Cal. Edison Co., supra, 112 Cal.App.4th at p. 1118 

[where a county asked trial court to evaluate documentary-transfer tax, it 

forfeited argument that “pay first, litigate later” rule applied to taxpayer’s 

challenge].)

The County waived its argument that two issues—whether the 

amendments enacted by the Board of Supervisors changed (1) the definition 

of “cultivation area” and (2) the time when taxes accrue—are not ripe for 

review. This argument was waived when the County stipulated that the trial 

court should decide those issues. 

B. The County’s Amendments Impermissibly Expanded the Scope of 

Measure S.

The County contends that the Board’s amendments did not 

impermissibly alter Measure S but instead merely clarified some of the 

measure’s ambiguous terms. We disagree.

1. Applicable Law.

Legislation “enacted by voter initiative may be changed only with the 

approval of the electorate unless the initiative measure itself permits 

amendment or repeal without voter approval.” (People v. Cooper (2002) 

27 Cal.4th 38, 44.) “An amendment is a legislative act designed to change an 

existing initiative statute by adding or taking from it some particular 

provision.” (Ibid.) “[I]n deciding whether a particular legislative act amends 

an initiative statute, courts ‘need to ask whether it prohibits what the 

initiative authorizes, or authorizes what the initiative prohibits.’ [Citations.] 
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The resolution of this question requires a determination of what the 

electorate contemplated when it passed the initiative, which in turn is a 

matter of statutory interpretation.” (People v. Lopez (2020) 51 Cal.App.5th 

589, 597.) 

“ ‘When we interpret an initiative, we apply the same principles 

governing statutory construction. We first consider the initiative’s language 

giving the words their ordinary meaning and construing this language in the 

context of the statute and initiative as a whole. If the language is not 

ambiguous, we presume the voters intended the meaning apparent from that 

language, and we may not add to the statute or rewrite it to conform to some 

assumed intent not apparent from that language. If the language is 

ambiguous, courts may consider ballot summaries and arguments in 

determining the voters’ intent and understanding of a ballot measure.’ ” 

(People v. Lopez, supra, 51 Cal.App.5th at p. 597.) Although the County 

contends that Measure S was not technically an initiative, the parties 

apparently do not disagree this is how the court should analyze the 

amendments to Measure S. 

The County contends that this court should defer to its construction of 

its own legislation, but it relies on inapposite authority that does not involve 

amending measures approved by voters. (San Francisco Fire Fighters 

Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 667 

[deference to rules adopted by civil service commission]; California Hotel & 

Motel Assn. v. Industrial Welfare Com. (1979) 25 Cal.3d 200, 204, 211–213

[deference to Industrial Welfare Commission order fixing hours, wages, and 

conditions of employment].)

2. The County Expanded Who Is Taxed.

As we have said, the trial court first concluded that the Board of 

Supervisors impermissibly broadened the scope of Measure S by taxing 
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“property owner[s] whose property is subject to a commercial marijuana 

cultivation permit,” instead of taxing only those “person[s] engaged in 

commercial marijuana cultivation,” as Measure S originally provided. After 

the County appealed, the Board of Supervisors enacted the October 2020 

amendments so that the tax now applies to “person[s] issued a commercial 

marijuana cultivation permit.” 

The County argues that the October 2020 amendments rendered moot 

the “dispute regarding taxing property owners as such.” True, “repeal or 

modification of a statute under attack, or subsequent legislation correcting a 

challenged deficiency, can render a case moot.” (Association of Irritated 

Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) 

But “[t]he appeal may not be moot if the amendment includes, continues, or 

reenacts a material part of the enactment which was considered by the lower 

court.” (Alternatives for California Women, Inc. v. County of Contra Costa 

(1983) 145 Cal.App.3d 436, 445.)

Although the October 2020 amendments establish that property owners 

are not subject to the tax simply by nature of their status as owners, the 

amendments still broaden the scope of Measure S as passed by the voters. 

The version passed by the voters made the tax applicable only to “person[s] 

engaged in commercial marijuana cultivation,” whereas the current version 

makes the tax applicable to “person[s] issued a commercial marijuana 

cultivation permit,” whether or not they are engaged in actual cultivation, an 

issue we address below (§ II.B.4.). 

We agree with the trial court that “[t]he voters approved a measure 

whereby an individual involved in cultivation is the person responsible for 

the tax. While it may often be true that the property owner and cultivator 

are the same individual, such is not always the case.” We construe the 

County’s mootness argument as an abandonment of its argument that the 
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Board was authorized to broaden the tax by applying it to all property 

owners. 

3. The County Expanded What Is Taxed.

Although the October 2020 amendments clarified that only permit 

holders are subject to the tax, the Board of Supervisors did not alter the prior 

amendments’ change in the taxable area from the “permitted area(s) of 

marijuana cultivation as measured around the perimeter of each discrete 

area of marijuana cultivation” to “the cultivation area stated on the 

commercial marijuana cultivation permit.” 

On appeal, the County contends that the change in the taxable 

cultivation area was permissible because the original version of the measure 

was ambiguous. We disagree. The original Measure S passed by the voters

defined “cultivation area” as “the sum of the permitted area(s) of marijuana 

cultivation as measured around the perimeter of each discrete area of 

marijuana cultivation on a single premises, as defined herein. Area of 

marijuana cultivation is the physical space where marijuana is grown and 

includes, without limitation, garden beds or plots, the exterior dimensions of 

hoop houses or green houses, and the total area of each of the pots and bags 

containing marijuana plants on the premises.” The County claims it is 

unclear whether this meant “the area in which growing is permitted, whether 

or not cultivated” or “the area that is both permitted and cultivated.” We 

discern no such ambiguity. The original definition explained in some detail 

how to measure the area (or areas) where actual cultivation was taking place. 

As the trial court stated, the definition “cannot be the full permitted area in 

and of itself, because the very language of the Measure passed by voters 

limits it to the sum of the areas around the perimeter of the physical spaces 

where marijuana is actually being cultivated.” The County’s amended 

definition of “cultivation area” to mean “the cultivation area stated on the 
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commercial marijuana cultivation permit issued by the Humboldt County 

Planning and Building Department” changes the scope of what is taxed.

The County argues that it was necessary to amend Measure S to 

“clarify” that the tax applies to “the cultivation area stated on the commercial 

marijuana cultivation permit . . . regardless of whether or not marijuana is 

actually grown on such property” to “allow[] efficient administration of the 

tax and [to] prevent[] fraud by cultivators who underreport the area of their 

grows.” The County further claims that “[s]uch fraud would be difficult to 

prevent in a sprawling, rural and forested county like Humboldt.” But 

regardless of whether they promote administrative and enforcement 

efficiencies, the amendments impermissibly “broaden the scope of the tax” 

and are therefore barred because they were not approved by the electorate.

Because we find no ambiguity in the measure’s original wording, we 

need not consider the County’s arguments that extrinsic evidence supports its

arguments. 

4. The County Changed When the Tax Accrues.

We likewise find no ambiguity in the measure’s language governing the 

time that the marijuana tax begins to accrue. Measure S as passed provided 

that “taxes shall begin to accrue on the date on which a person becomes 

engaged in legally authorized commercial marijuana cultivation in 

accordance with the applicable provisions of this Code and all other 

applicable state and federal laws and regulations.” The County argues that 

this language was ambiguous because the tax “could accrue when a permit is 

obtained or when a cultivator begins to grow,” but we disagree. True enough, 

the measure referred to cultivation “in accordance with the applicable 

provisions of this Code,” which arguably encompasses securing the necessary 

permit before starting to cultivate. But this does not mean, as the County 
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argues, that Measure S can be reasonably interpreted to say that the tax 

accrues as soon as someone secures a permit. 

We also disagree with the County that the definition of “[c]ommercial 

marijuana cultivation” supports its reading of Measure S. Again, “marijuana 

cultivation” is defined as “any activity involving the planting, growing, 

harvesting, drying, curing, grading or trimming of marijuana or cannabis, 

including nurseries, that is intended to be transported, processed, 

manufactured, distributed, dispensed, delivered or sold in accordance with 

the applicable provisions of this Code and all other applicable state and 

federal laws and regulations.” The County argues that the phrase “any 

activity involving” is “easily read to include obtaining the permit that [the] 

Code requires.” Not so. The definition focuses on the process of actually 

cultivating marijuana, not seeking a permit to do so.

As the trial court observed, “A person obtaining a permit is reserving 

the right to cultivate and abide by certain rules and regulations; it does not 

obligate them to actually engage in cultivation. . . . The tax was supposed to 

begin accruing when cultivation starts, rather than when a permit is issued.” 

We agree with the trial court that “[t]he tax was supposed to begin accruing 

when cultivation starts, rather than when a permit is issued,” and the 

County thus was not permitted to amend the measure so that taxes would be 

owed for each and every year someone has a permit, regardless of whether 

they are cultivating marijuana. 

III.

DISPOSITION

The judgment is affirmed. Respondents shall recover the costs of 

appeal.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Silva v. Humboldt County A160161/A160264