City of Alameda Ginsburg Case June 2016

1 Paul R. Kiesel, State Bar No.
119854
kiesel@kiesel-law.com
2 Jeffrey A. Koncius, State Bar No. 189803
koncius@kiesel-law.com
3 Nicole Ramirez, State Bar No. 279017
ramirez@kiesel-law.com
4 KIESEL LAW LLP
8648 Wilshire Boulevard
5 Beverly Hills, California 90211-2910
Tel: 310-854-4444
6 Fax: 310-854-0812
Attorneys at Law
Beverly Hills, California
KIESEL LAW LLP
7 Thomas A. Kearney, State Bar No. 90045

tak@kearneylittlefield.com
8 Prescott W. Littlefield, State Bar No. 259049
pwl@kearneylittlefield.com
9 KEARNEY LITTLEFIELD, LLP
3436 N. Verdugo Rd., Ste. 230
10 Glendale, California 91208
Tel: 213-473-1900
11 Fax: 213-473-1919
Moris Davidovitz, State Bar No. 70581

MDavidovitz@dblawsf.com
DAVIDOVITZ + BENNETT
101 Montgomery Street, Suite 2550
San Francisco, California 94104-4176
Tel: 415-956-4800
Fax: 415-788-5948
12 Attorneys for Petitioner/Plaintiff

ZACHARY GINSBURG, on behalf of
13 himself and all others similarly situated
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF ALAMEDA
16 ZACHARY GINSBURG, on behalf of

himself, and all others similarly situated,
17
Petitioner and Plaintiff,
18
v.
19
CITY OF ALAMEDA, and DOES 1 through
20 100,
Case No. RG15791428

Hon. George Hernandez, Jr.
CLASS ACTION
SECOND AMENDED VERIFIED PETITION
FOR WRIT OF MANDATE
and
21
22
Respondents and Defendants.

SECOND AMENDED COMPLAINT FOR
INJUNCTIVE AND DECLARATORY
RELIEF AND REFUND OF ILLEGAL TAX
23
DEMAND FOR JURY TRIAL
24
25
Case Filed: October 29, 2015

Trial Date: Not yet assigned
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SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
AND SECOND AMENDED CLASS ACTION COMPLAINT
Petitioner/Plaintiff Zachary Ginsburg, on behalf of himself and the Class of all other
2 similarly situated persons defined below, alleges all of the following upon information and belief,
3 except as to those paragraphs that state specifically that they are alleged on personal knowledge, as
4 follows:
5
6
INTRODUCTION
1.
Proposition 218, the Right to Vote on Taxes Act, was passed by the people of
7 California in November 1996. The measure stated its purpose was intended to provide effective
8 tax relief and to require voter approval of tax increases. However, local governments have
9 subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate
10 the purposes of voter approval for tax increases, but also threaten the economic security of all
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11 Californians and the California economy itself. This measure protects taxpayers by limiting the
12 methods by which local governments exact revenue from taxpayers without their consent.
13
2.
By passing Proposition 218, the California Constitution was amended to add
14 Articles XIII C and XIII D. Article XIII C dealt with voter approval for local government general
15 taxes and special taxes. Article XIII D sets forth procedures, requirements and voter approval
16 mechanisms for local government assessments, fees and charges. This action pertains to both
17 Articles, relating to taxes, fees and charges wrongly imposed by Defendants herein.
18
3.
In November 2010, California voters approved Proposition 26, the Supermajority
19 Vote to Pass New Taxes and Fees Act. Proposition 26 further amended Article XIII C to clarify
20 that [t]he local government bears the burden of proving by a preponderance of the evidence that a
21 levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the
22 reasonable costs of the governmental activity, and that the manner in which those costs are
23 allocated to a payor bear a fair or reasonable relationship to the payors burdens on, or benefits
24 received from, the governmental activity.
25
4.
Petitioner/Plaintiff brings this action, on behalf of himself and all others similarly
26 situated, to compel Respondents/Defendants to comply with Propositions 218 and 26. Specifically,
27 he seeks to enjoin Respondents/Defendants from illegally transferring surplus funds collected
28 under the guise of fees charged for electricity, into the General Fund of the City of Alameda. He
1
1 also seeks a refund of such sums and to obtain voter approval for what is in effect a tax.
2
3
PARTIES
5.
Petitioner/Plaintiff Zachary Ginsburg, based on personal knowledge is currently,
4 and has been since 2005, a resident of Defendant the City of Alameda. Based on personal
5 knowledge, at all times, Petitioner/Plaintiff has paid the electricity fees at issue herein and at no
6 time did Mr. Ginsburg vote on any increase to his electricity rates.
7
6.
Respondent/Defendant City of Alameda (City) is located in the County of
8 Alameda, State of California. At all times herein mentioned, the City provides electrical power to
9 its citizens through a department it runs which is called Alameda Municipal Power (AMP).
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7.
Respondents/Defendants DOES 1 through 100 are persons or entities whose true
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11 names and identities are currently unknown to Petitioner/Plaintiff. This Complaint will be
12 amended to allege the true names and capacities of these fictitiously named Defendants when they
13 are ascertained. Each of the fictitiously named Defendants is responsible for the conduct alleged in
14 this Complaint. Through their conduct, the fictitiously named Defendants caused damages to
15 Petitioner/Plaintiff and the Class. At all times mentioned herein, each Defendant was acting as the
16 agent and/or employee of each of the remaining Defendants and was at all times acting within the
17 purpose and scope of such agency and employment. In doing the acts alleged herein, each
18 Defendant, and its officers, directors, members, owners, principals, or managing agents (where the
19 Defendant is a corporation, limited liability company, or other form of business entity) authorized
20 and/or ratified the conduct of each other Defendant and/or of his/her/its employees.
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GOVERNMENT CLAIM
8.
On or about October 29, 2015, counsel for Petitioner/Plaintiff delivered to
23 Defendant City of Alameda a written Claim for Damages, on behalf of Petitioner/Plaintiff and all
24 others similarly situated, pursuant to California Government Code section 910, et seq., and City of
25 San Jose v. Superior Court, 12 Cal. 3d 447 (1974).
26
9.
The City failed or refused to act on Petitioner/Plaintiffs Claim for Damages by
27 December 14, 2015, or within 45 days after the Claim was presented to the City. Thus,
28 Petitioner/Plaintiffs Claim is deemed to have been rejected, pursuant to California Government
2
1 Code section 912.4.

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GENERAL ALLEGATIONS
10.
The City operates AMP which is overseen by the Alameda Public Utilities Board.
4 Through AMP, the City provides electricity to its citizens. For that service, it collects fees from
5 the users on a monthly basis. The electricity services it provides are property-related services, and
6 the fees and charges are imposed by the City upon parcels and persons as an incident of property
7 ownership.
8
11.
The City has engaged in, and continues to engage in, the illegal transfer of funds
9 collected by AMP into the Citys General Fund. Such transferred funds are not earmarked or
10 designated for any specific purpose such as for reimbursement of shared costs, but instead are used
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11 for general purposes. In this regard, AMP states on its website, We maintain local control so that
12 we can re-invest in the island and provide value to enrich our lives, businesses and the community.
13 In fact, since 1887, AMP has contributed more than $75 million to the City of Alamedas General
14 Fund. https://www.alamedamp.com/about-us/history-2 (last visited October 28, 2015).
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12.
Such transfers to the General Fund do not occur by happenstance. As set forth in its
16 January 2015 five-year strategic plan, an ongoing goal of the City has been to set rates so as to
17 Ensure mutually-agreeable transfer to City. This notion is repeated: We support Alameda
18 through our annual transfer of funds. In other words, the rates Petitioner/Plaintiff and the
19 members of the Class are paying for electricity exceed the actual cost of the City providing the
20 service and are set intentionally so as to create a surplus to achieve the transfer into its General
21 Fund.
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13.
This action is based on violation of the State Constitution, Article XIII C, Section
23 1(e) which provides that a tax is any charge of any kind imposed by a local government for a
24 specific government product that exceeds the reasonable costs to the local government of
25 providing the product, and Article XIII D, Section 6(b) which provides that a user charge for a
26 property related service (1) shall not exceed the funds required to provide that service, and (2)
27 which requires that the amount of a charge imposed upon a person shall not exceed the
28 proportional cost of the service attributable to the parcel.
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14.
AMP imposes an illegal special tax on residential electric customers because,
2 among other reasons; (a) the charge imposed on them for electric service includes surplus capital
3 raised by AMP that is transferred to the City and results in electric charges that are not, and cannot
4 be, cost justified; (b) AMP has been illegally providing the City with free electrical power for its
5 street lights at ratepayer expense since about July 1, 2013; (c) AMP has also paid the City
6 excessive amounts for services provided by the City to AMP; (d) AMP has imposed an improper
7 and illegal tiered rate system upon its residential customers; and (e) commercial electrical
8 customers pay less for power than do residential and public authority rate payers, which is an
9 illegal cross-category subsidy.
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15.
Research has revealed no attempts by the City to obtain voter approval of an
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11 otherwise illegal transfer of utility fees to the Citys General Fund. Total costs of the illegal
12 transfer can be apportioned by multiplying the total amount of the transfer by each customers
13 percentage of total energy usage.
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16.
The City has engaged in the illegal expenditure and waste of city funds by a)
15 colluding with commercial-rate payers to implement an illegal cross-category subsidy by which

16 residential and public authority rate payers are charged more for power than commercial electrical
17 customers, and b) budgeting and spending money in administering illegal ordinances, which
18 include Alameda Municipal Code sections 3-28.9, 3-28.10, and Alameda City Charter Article XII
19 section 6, which allow for the transfer of surplus funds from AMP into the Citys General Fund.
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17.
Government Code Section 905(a) provides an exception from claim filing
21 requirements for money claimed under a statute prescribing procedures for the refund,
22 cancellation, modification or adjustment of any tax or fee, or any portion thereof. Article XIII C
23 and D of the State Constitution were enacted and amended by State Propositions 218 and 26, and
24 Government Code Section 811.8 defines statute to mean enactments adopted by the people of
25 California by initiative act.
26
18.
In light of the foregoing, Petitioner/Plaintiff, on behalf of himself and all others
27 similarly situated, seeks relief from the illegal tax, return of all sums illegally collected and the
28 other relief set out herein.
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CLASS ACTION ALLEGATIONS

19.
Petitioner/Plaintiff brings this class action pursuant to California Code of Civil
3 Procedure section 382 on his own behalf and on behalf of:

4
All customers of Alameda Municipal Power who were billed for

electricity from October 2012 through the present.
5
20.
The following persons and entities shall be excluded from the Class: (a) all persons
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who make a timely election to be excluded from the proposed Class, and (b) the judge(s) to whom
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this case is assigned and any immediate family members thereof. Also excluded are claims for
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personal injury alleged to have been suffered by any member of the Class.
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21.
Petitioner/Plaintiff reserves the right to redefine the Class prior to certification.
22.
This action is properly maintainable as a class action.
23.
The Class for whose benefit this action is brought is so numerous that joinder of all
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Class members is impracticable. While Petitioner/Plaintiff does not presently know the exact
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number of Class members, AMP states on its website that it provides power to more than 34,000
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customers. Class members can be determined and identified through AMPs and Defendants
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records and, if necessary, other appropriate discovery.
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24.
There are questions of law and fact that are common to Class members and which
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predominate over any questions affecting only individual members of the Class. A class action
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will generate common answers to the below questions, which are apt to drive the resolution of the
19
litigation:
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a.
What
was
the
reasonable
cost
of
the
electricity
provided
to
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Petitioner/Plaintiff and the members of the Class;
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b.
How was the reasonable cost of the electricity calculated;
c.
Whether Defendants fees or charges for electricity exceeded the
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proportional cost of the service attributable to parcels owned by Petitioner/Plaintiff and the
25
members of the Class;
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d.
Whether the rates charged by Defendants for electricity exceed the cost of
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service and, as a result, operate as a tax not voted on by the citizens;
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e.
California Constitution;
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f.
i.
Whether an election must be held before Defendants may impose the
electricity charges upon Petitioner/Plaintiff and the Class members;
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Whether Defendants actions violate Articles XIII C and XIII D of the
g.
Whether Petitioner/Plaintiff and other Class members have been damaged
by Defendants actions or conduct;
h.
The proper measure of damages; and
i.
Whether Petitioner/Plaintiff and other Class members are entitled to
injunctive relief.
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25.
Petitioner/Plaintiff is committed to prosecuting this action and has retained
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KIESEL LAW LLP
11 competent counsel experienced in litigation of this nature. Petitioner/Plaintiffs claims are typical
12 of the claims of other Class members and Petitioner/Plaintiff has the same interests as other Class
13 members. Petitioner/Plaintiff has no interests that are antagonistic to, or in conflict with, the
14 interests of the other members of the Class. Petitioner/Plaintiff is an adequate representative of the
15 Class and will fairly and adequately protect the interests of the Class.
16
26.
The prosecution of separate actions by individual Class members could create a
17 risk of inconsistent or varying adjudications with respect to individual members of the Class,
18 which could establish incompatible standards of conduct for Defendants or adjudications with
19 respect to individual members of the Class which would, as a practical matter, be dispositive of
20 the interests of the members of the Class not parties to the adjudications.
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27.
Furthermore, as the damages suffered by some of the individual Class members
22 may be relatively small, the expense and burden of individual litigation makes it impracticable for
23 the individual members of the Class to redress the wrongs done to them individually. If a class
24 action is not permitted, Class members will continue to suffer and Defendants misconduct will
25 continue without proper remedy.
26
28.
Defendants have acted and refused to act on grounds generally applicable to the
27 entire Class, thereby making relief appropriate with respect to the Class as a whole.
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29.
Petitioner/Plaintiff anticipates no unusual difficulties in the management of this

6
1 litigation as a class action.

2
30.
For the above reasons, a class action is superior to other available methods for the
3 fair and efficient adjudication of this action.

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5
FIRST CAUSE OF ACTION
Petition for Writ of Mandate

Pursuant to Code of Civil Procedure section 1085
(By Petitioner/Plaintiff Against All Respondents)
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31.
Petitioner/Plaintiff hereby incorporates by reference each of the preceding
9 allegations as though fully set forth herein.

10
32.
Defendants charges for electricity above the cost of electricity were not approved
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KIESEL LAW LLP
11 by the voters in spite of the restrictions imposed by Propositions 218 and 26 and Articles XIII C
12 and XIII D of the California Constitution.
13
33.
All amounts transferred to Defendants General Fund from the electrical rates are
14 illegal taxes, and all amounts for electrical rates based on the conduct alleged in Paragraph 14
15 above are illegal taxes.
16
34.
The imposition and collection of the illegal taxes from Petitioner/Plaintiff and the
17 Class was, and is, improper because it is a violation of the State Constitution, Articles XIII C and
18 XIII D. The imposition of the illegal taxes has caused Petitioner/Plaintiff and the Class to suffer
19 monetary damages in amounts according to proof at trial, plus interest thereon.
20
35.
Accordingly, Petitioner/Plaintiff is entitled to a writ of mandate pursuant to Code of
21 Civil Procedure section 1085 so as to ensure compliance with the law by the City.
22
SECOND CAUSE OF ACTION
23
Declaratory Relief
(By Petitioner/Plaintiff Against All Defendants)
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36.

27
37.
An actual, present, and substantial controversy exists between Petitioner/Plaintiff
28 and Defendants. Petitioner/Plaintiff contends that Defendants have violated, and continue to
7
1 violate, the California Constitution. Defendants will no doubt contend that they have complied
2 with the law.
3
38.
Petitioner/Plaintiff and other Class members have no adequate remedy at law.
39.
By reason of the foregoing, there is a present and ongoing controversy between the
5 parties with respect to which this Court should enter a declaratory judgment determining the rights
6 and obligations of each. Petitioner/Plaintiff contends that such judgment should determine that the
7 conduct complained of herein is illegal.
8
THIRD CAUSE OF ACTION
9
Injunction Pursuant to C.C.P. 526a
(Petitioner/Plaintiff Against All Defendants)
10
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40.

13
41.
Petitioner/Plaintiff is entitled to, and seeks, an injunction pursuant to Code of Civil
14 Procedure section 526a to enjoin Defendants from their illegal expenditure and waste of city funds
15 to wit, a) Defendants collusion with commercial-rate payers to implement an illegal cross16 category subsidy by which residential and public authority rate payers are charged more for power
17 than commercial electrical customers, and b) Defendants budgeting and spending money in
18 administering the illegal ordinances, which include Alameda Municipal Code sections 3-28.9, 319 28.10, and Alameda City Charter Article XII section 6, which allow for the transfer of surplus
20 funds from AMP into the Citys General Fund, and the other conduct set forth in Paragraphs 14-16
21 herein and further to restore all funds illegally transferred as set forth herein.
22
FOURTH CAUSE OF ACTION
23
Refund of Illegal Tax
(Petitioner/Plaintiff Against All Defendants)
24
25
42.

27
43.
Petitioner/Plaintiff has substantially complied with any applicable requirements to
28 exhaust his administrative remedies pursuant to Government Code section 945.6.

8
44.
Defendants never submitted the charges for electricity that exceed costs to the
2 electorate for a vote.

3
45.
Proposition 218, as amended by Proposition 26, is designed to protect[] taxpayers
4 by limiting the methods by which local governments exact revenue from taxpayers without their
5 consent. (Prop. 218 2)
6
46.
Local governments must submit to the electorate for approval by vote laws that
7 impose, extend, or increase any tax. (Cal. Const., art. XIII C, 2(b), (d).)
8
47.
Defendants collection of electricity rates without voter approval that exceed the
9 costs of providing the service violates Proposition 218 as amended by Proposition 26.
10
48.
Because the rates are in violation of Proposition 218 as amended by Proposition 26,
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11 they are unconstitutional under the California Constitution, are invalid and inapplicable.
12
49.
For all of the foregoing reasons, Petitioner/Plaintiff and the Class have overpaid for
13 electricity and thus are entitled to recovery in the form of a refund plus interest thereon.
14
15
PRAYER FOR RELIEF

WHEREFORE, Petitioner/Plaintiff, individually and on behalf of all others similarly
16 situated, hereby prays that the Court determine that this action may be maintained as a class action
17 and further prays that the Court enter judgment in his favor and against the Defendants, as follows:
18
1.
An order certifying the proposed Class, designating Petitioner/Plaintiff as the
19
named representative of the Class, and designating the undersigned as Class
20
Counsel;
21
2.
22
A refund to Petitioner/Plaintiff and the Class for all monies illegally collected in an
amount to be proven at trial;
23
3.
Injunctive relief;
24
4.
An award of attorneys fees and costs, as allowed by law, including, but not limited
25
to, under California Code of Civil Procedure section 1021.5;
26
5.
An award of pre-judgment and post-judgment interest, as provided by law;
27
6.
For the issuance of a writ of mandate directing Respondents/Defendants to stop all
28
transfers of surplus sums collected for electricity charges into the General Fund
9
and to stop all improper or illegal electrical rate charges by order that a vote for the
tax complained of herein be held by the People;
7.
4
5
6
For a judicial declaration of the rights and obligations of the parties, to guide the
parties future conduct; and
8.
For such other, further, and different relief as the Court deems proper under the
circumstances.
7 DATED: March 15, 2016
Respectfully submitted,
KIESEL LAW LLP
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Attorneys at Law
KIESEL LAW LLP
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By:
Paul R. Kiesel
Jeffrey A. Koncius
Nicole Ramirez
Moris Davidovitz
KEARNEY LITTLEFIELD, LLP
Thomas A. Kearney
Prescott W. Littlefield
Attorneys for Petitioner/Plaintiff
ZACHARY GINSBURG
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DEMAND FOR JURY TRIAL

Plaintiff, on behalf of himself and the Class of all others similarly situated, demands a trial
3 by jury as to all issues so triable.

4 DATED: March 15, 2016
Respectfully submitted,
KIESEL LAW LLP
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Attorneys at Law
KIESEL LAW LLP
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By:
Paul R. Kiesel
Jeffrey A. Koncius
Nicole Ramirez
Moris Davidovitz
Thomas A. Kearney
Prescott W. Littlefield
ZACHARY GINSBURG
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VE[Uf'lcAnoN
I, 7..achary Ginsburg. di.!e Ulre:
I .im II party l('t 1his action , and l h3vrz remJ the fort:going s~ond Am\!Jlded Complnmt and
4 know its cuml'ntl>. Vlhi.!re indjca1ed, H1e rnullcn, i:w.tcd in I.hi: Si=eanLt Amcni.lcd Cumplllinl u:rc In.II,'.'.
h!l~""{) rm my knowledge, .tnd ;ire nthcrw1sc srntcd on 1nfonna1ion .:md bt.!licf. a.nd as If! those
fi nmtters l believe th~m to bi: tmi.!
J l"-erLi1}, upon pemdty
l1r
[)CQtlfY Ul'ICkr the lawi.
ar the Stille' nf'. Cidifomfa. th.at
lhe
forciwing 1s true and cornea and lh:Jt thii verification was executed on lhc date !.hown below an
lhc Cuy of
IO
'
fl
(J
l4
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'l?
......
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2S
Ida 1>-1g....~g..
, Cahfom1a..
Dated: MarchlL lOlti

ZAC~ARY Gh"'IJSBURG
PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3
At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 8648
4 Wilshire Boulevard, Beverly Hills, CA 90211-2910.
5
On March 15, 2016, I served true copies of the following document(s) described as
SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE and SECOND
6 AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND
REFUND OF ILLEGAL TAX; VERIFICATION on the interested parties in this action as
7 follows:
8
SEE ATTACHED SERVICE LIST
9
Attorneys at Law
KIESEL LAW LLP
10
BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the

persons at the addresses listed in the Service List and placed the envelope for collection and
11 mailing, following our ordinary business practices. I am readily familiar with Kiesel Law LLPs
practice for collecting and processing correspondence for mailing. On the same day that the
12 correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
13
BY ELECTRONIC MAIL: I hereby certify that I served the above-described document
14 on the interested parties in this action by attaching an electronic copy of the document to an email
addressed to the parties listed below at their most recent e-mail address of record in this action. I
15 did not receive, within a reasonable time after the transmission, any electronic message or other
indication that the transmission was unsuccessful.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
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Executed on March 15, 2016 at Beverly Hills, California.
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Jessica Mendez
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PROOF OF SERVICE
SERVICE LIST
Ginsburg v. City of Alameda

Case No. RG15791428
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Attorneys at Law
KIESEL LAW LLP
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Thomas A. Kearney, Esq.

(tak@kearneylittlefield.com)
Prescott W. Littlefield, Esq.
(pwl@kearneylittlefield.com)
3436 N. Verdugo Rd., Ste. 230
Glendale, California 91208
Tel: 213-473-1900
Fax: 213-473-1919

himself and all others similarly situated
Moris Davidovitz, Esq.

(MDavidovitz@dblawsf.com)
San Francisco, California 94104-4176
Tel: 415-956-4800
Fax: 415-788-5948

himself and all others similarly situated
Thomas B. Mayhew, Esq. (tmayhew@fbm.com)

Claire M. Johnson, Esq. (cjohnson@fbm.com)
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street
San Francisco, CA 94104
Tel: 415-954-4400
Fax: 415-954-4480
Attorneys for Defendant

CITY OF ALAMEDA
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PROOF OF SERVICE
Defendant and Respondent City of Alameda ("Alameda"), responding only to averments
of claims in numbered paragraphs, hereby answers the Second Amended Complaint filed by
Plaintiff and Petitioner Zachary Ginsburg ("Complaint") as follows:
1.
In answer to the allegations contained in Paragraph 1 of the Complaint, Alameda is
informed and admits that Proposition 218 was adopted in November 1996. Alameda avers that
no answer is required to the remaining allegations of Paragraph 1 to the extent they consist of
legal conclusions. Alameda lacks information or belief to answer each and every remaining
allegation of Paragraph 1 of the Complaint, and basing its denial on that ground, denies each and
every remaining allegation contained therein.
10
2.
11
informed and admits that Proposition 218 added Articles XIII C and XIII D to the California
12
Constitution. Alameda avers that no answer is required to the remaining allegations of Paragraph
13
2 to the extent they consist of legal conclusions. Alameda denies each and every allegation in
14
Paragraph 2 directed at it.
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3.
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informed and admits the alleged text of Article XIII C of the California Constitution. Alameda
17
further is informed and admits that Proposition 26 was adopted by California voters in November
18
2010. Alameda avers that no answer is required to the remaining allegations of Paragraph 3 to
19
the extent they consist of legal conclusions.
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4.
In answer to the allegations contained in Paragraph 4 of the Complaint, Alameda
21
avers that no answer is required to the extent the allegations consist of legal conclusions.
22
Alameda denies each and every allegation in Paragraph 4 directed at it. Alameda further lacks
23
information or belief to answer each and every remaining allegation of Paragraph 4 of the
24
Complaint, and basing its denial on that ground, denies each and every remaining allegation
25
contained therein.
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5.
Alameda lacks information or belief to answer the allegations contained in
27
Paragraph 5 of the Complaint, and, basing its denial on that ground, denies each and every
28
allegation contained therein.
FareIla Braun + Martel LLP

235 Montgomery Street, 17th Floor
(415) 954-4400
-2-
32534\5395911.1
CITY OF ALAMEDA'S ANSWER TO SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
AND SECOND AMENDED COMPLAINT
6.
admits that it is located in the County of Alameda, State of California. Alameda further admits it
owns an electric utility, known as "Alameda Municipal Power," that supplies electric power to
Alameda's residents.
7.
Alameda lacks information or belief to answer the allegations contained in
Paragraph 7 of the Complaint, and, basing its denial on that ground, denies each and every
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9
8.
admits that Petitioner/Plaintiff submitted a Claim for Damages ("Claim") pursuant to California
10
Government Code Gov. Code, 900 et. seq. and 910 et. seq in October of 2015. Alameda
11
further lacks information or belief to answer each and every remaining allegation of Paragraph 8
12
of the Complaint, and basing its denial on that ground, denies each and every remaining
13
14
9.
15
admits it did not act on the Claim within 45 days of the Claim's presentation. Alameda avers that
16
no answer is required to the remaining allegations of Paragraph 9 to the extent they consist of
17
legal conclusions.
18
10.
19
admits that Alameda Municipal Power is overseen by the city's Public Utilities Board, pursuant to
20
Section 12-1 of the Alameda City Charter. Alameda further admits that Alameda Municipal
21
Power provides electricity to certain citizens of the City of Alameda, and that Alameda charges
22
money for doing so. Alameda avers that no answer is required to the remaining allegations to
23
extent the allegations consist of legal conclusions. Alameda denies each and every remaining
24
allegation in Paragraph 10 of the Complaint.
25
11.
26
27
Alameda admits the accuracy of the quoted text from the Alameda Municipal Power website, but
28
denies each and every remaining allegation contained therein.

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Forollo Braun + Martel LLP

235 Montgomery StreeL 17th Floor
(415) 954-4400
32534\5395911.1
12.
Alameda admits that the quoted material appears in its January 2015 five-year strategic plan, but
denies each and every remaining allegation contained therein.
13.
Alameda denies each and every allegation in Paragraph 13 directed at it.
14.
10
Alameda denies each and every remaining allegation in Paragraph 14 of the Complaint.
11
15.
12
13
14
16.
15
16
17
17.
18
19
Alameda further lacks information or belief to answer each and every remaining allegation of
20
Paragraph 17 of the Complaint, and basing its denial on that ground, denies each and every
21
remaining allegation contained therein.
22
18.
Alameda denies each and every allegation in Paragraph 18 of the Complaint.
23
19.
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25
Alameda further denies each and every allegation in Paragraph 19 of the Complaint.
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20.
27
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Enrolls Braun Martel LLP

(415) 954-4400
32534\5395911.1
21.
In answer to any allegations contained in Paragraph 21 of the Complaint, Alameda
avers that no answer is required to the extent the allegation consists of a legal conclusion.
22.
23.
10
24.
11
12
13
25.
14
15
Alameda further lacks information or belief to answer the allegations contained in Paragraph 25
16
of the Complaint, and, basing its denial on that ground, denies each and every allegation
17
contained therein.
18
26.
19
20
21
27.
22
23
24
28.
25
avers that no answer is required to the extent the allegation consists of a legal conclusions.
26
27
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Farella Braun + Martel LLP
235 Montgomery Street, 1710 Floor
(415) 954-4400
29.
32534\5395911.1
-5CITY OF ALAMEDA'S ANSWER TO SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
30.
31.
Answering Paragraph 31, Alameda incorporates by reference its above responses
to Paragraphs 1-30, inclusive, as though the same were fully set forth herein.
32.
Alameda further avers that no answer is required to the extent the allegations consist of legal
conclusions.
33.
conclusions.
34.
conclusions.
35.
conclusions.
36.
37.
In answer to the allegations contained in Paragraph 37, Alameda does contend that
it has complied with the California Constitution. Alameda denies each and every remaining
allegation in Paragraph 37 of the Complaint.
38.
Alameda further avers that no answer is required to the extent the allegation consists of a legal
conclusions.
39.
conclusions.
40.
Farella Braun + Martel LLP
235 Montgomery Street 17th Floor
(415) 954-4400

32534\5395911.1
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1
2
41.
conclusions.
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6
7
42.
43.
conclusion.
10
44.
11
45.
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13
14
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contained therein.
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46.
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18
19
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contained therein.
21
47.
22
23
conclusion.
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48.
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conclusion.
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49.
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FareIla Braun + Martel LLP
(415) 954-4400
32534\5395911.1
-7CITY OF ALAMEDA'S ANSWER TO SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE
conclusion.
2
3
AFFIRMATIVE DEFENSES
Additionally, Alameda answers the Petition by way of affirmative defenses alleged below.
By alleging these defenses below, Alameda is not agreeing or conceding that it has the burden of
proof or persuasion on any of these issues.
First Affirmative Defense

(No Standing)
7
8
9
As a first, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner lacks standing to bring the claims that are set forth in the Petition.
10
Second Affirmative Defense

(Failure to State a Claim)
11
12
As a second, separate and distinct affirmative defense, Alameda alleges that
13
Plaintiff/Petitioner fails to state facts sufficient to state a cause of action for which relief can be
14
granted.
15
Third Affirmative Defense

(Failure to Exhaust Administrative Remedies)
16
17
As a third, separate and distinct affirmative defense, Alameda alleges that
18
Plaintiff/Petitioner is barred from bringing or maintaining this action because he has failed to
19
exhaust his administrative remedies.
20
Fourth Affirmative Defense

(Statute of Limitations)
21
22
As a fourth, separate and distinct affirmative defense, Alameda alleges that
23
Plaintiff/Petitioner is barred from bringing or maintaining this action by the application of the
24
statute of limitations, including that proscribed by Cal. Gov . Code 911.2 (a) and Cal. Pub. Util.
25
Code 10004.5.
26
27
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FareIla Braun *Martel LLP
235 Montgomery Street, 1701 Floor
(415) 954-4400
Fifth Affirmative Defense

(Equitable Defenses)
As a fifth, separate and distinct affirmative defense, Alameda alleges that
-8-
32534\5395911.1
-Ca -
Plaintiff/Petitioner's causes of action are barred, in whole or in part, by the equitable doctrine of
laches, waiver, or estoppel.
Sixth Affirmative Defense

(Ineligible for Attorneys' Fees)
4
5
As a sixth, separate and distinct affirmative defense, Alameda alleges that
Plaintiff/Petitioner has failed to state facts sufficient to set forth a claim for recovery of his
attorneys' fees.
8
9
Seventh Affirmative Defense

(Inadequate Pleading)
10
As a seventh, separate and distinct affirmative defense, Alameda alleges that
11
Plaintiff/Petitioner failed to properly plead the causes of action stated in the Petition.
12
13
14
15
Eighth Affirmative Defense

(Public Interest)
As an eighth, separate and distinct affirmative defense, Alameda alleges that the
Plaintiff/Petitioner is barred because the relief sought is not in the public interest.
16
17
Ninth Affirmative Defense

(No Beneficial Interest)
18
As an ninth, separate and distinct affirmative defense, Alameda alleges that
19
Plaintiff/Petitioner is not beneficially interested in the proceedings.
20
21
Tenth Affirmative Defense

(Other Remedy Available)
22
As a tenth, separate and distinct affirmative defense, Alameda alleges that
23
Plaintiff/Petitioner has an adequate remedy other than writ of mandamus.
24
25
Eleventh Affirmative Defense

(Actions Taken in Good Faith and Lawfully)
26
As an eleventh, separate and distinct affirmative defense, Alameda alleges that any acts
27
that have been taken with respect to Plaintiff/Petitioner have been in good faith, have been
28
Farella Braun Martel LLP
235 Monigomery Street, 17th Floor
(415) 954-4400
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32534\5395911.1
_[_
reasonable and prudent, and have been consistent with all applicable legal state and federal
constitutional standards.
3
4
5
PRAYER FOR RELIEF

WHEREFORE, Alameda denies that Plaintiff/Petitioner is entitled to the relief prayed for,
or to any relief whatsoever, and prays as follows:
1.
That the Complaint against Alameda be dismissed with prejudice;
2.
That Plaintiff/Petitioner shall take nothing by way of this Complaint;
3.
That Alameda has acted in accordance with the law in all respects;
4.
That Plaintiff/Petitioner's request for attorneys' fees and costs be denied;
10
5.
That Alameda be awarded of costs of suit incurred herein, and attorneys' fees, if
11
12
permitted by law; and

6.
For such other relief as this Court may deem just and proper.
13
14
Dated: April 26, 2016
FARELLA BRAUN + MARTEL LLP
15
16
By:
Thomas B. Mayhew
17
Attorney for Defendants/Respondents

CITY OF ALAMEDA
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25
26
27
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Farella Pram + Martel LLP
(415) 954-4400
- 10 -
32534\5395911.1
PROOF OF SERVICE
I, the undersigned, declare:

3
I am a resident of the United States and employed in San Francisco County, California. I
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 235 Montgomery Street, 17 th Floor, San Francisco, California 94104
pwoodfin@fbm.com . On April 26, 2016, I served a copy of the within document(s):
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8
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10
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12
1 ,3
14
15
16
17
18
19
20
21
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24
25
26
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CITY OF ALAMEDA'S VERIFIED ANSWER TO PLAINTIFF ZACHARY

GINSBURG'S SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDAGE
AND SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY
RELIEF AND REFUND OF ILLEGAL TAX
U.S. MAIL: by placing the document(s) listed above in a sealed envelope with
postage thereon fully prepaid, in the United States mail at San Francisco,
California addressed as set forth below.
BY ELECTRONIC SERVICE VIA FILE & SERVEXPRESS: by causing a
true and correct copy of the document(s) listed above to be sent via electronic
transmission through File & ServeXPress on the recipients designated on the
Transaction Receipt located on the File & ServeXPress website
(https://secure.fileandservexpress.corn ) pursuant to the Court Order establishing the
case website and authorizing service of documents.
E-MAIL TRANSMISSION: by transmitting via email PDF the document(s)
listed above to the e-mail addresses set forth below on this date before 5:00 p.m.
FEDERAL EXPRESS: by placing the document(s) listed above in a sealed
Federal Express envelope and affixing a pre-paid air bill, and causing the envelope
to be delivered to a Federal Express agent for delivery.
MESSENGER: by personally arranging for delivery by messenger the
document(s) listed above to the person(s) at the address(es) set forth below.
Paul R. Kiesel, Esq.
Jeffrey A. Koncius, Esq.
Nicole Ramirez, Esq.
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211-2910
Telephone: 310-854-4444
Fax: 310-854-0812
Thomas A. Kearney, Esq.

Prescott W. Littlefield, Esq.
3436 n. Verduco Road, Suite 230
Glendale, CA 91208
Telephone: 213-473-1900
Fax: 213-473-1919
Moris Davidovitz, Esq.

San Francisco, CA 94101-4176
Telephone: 415-956-4800
Fax: 415-788-5948
32534\5429667.1
Farella Braun & Martel LLP
Russ Building
235 Montgomery Street
Ran Francisco. CA 94104
(415) 054-4400
PROOF OF SERVICE (Ginsburg v. City of Alameda) RG15791428
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
-3
Executed on April 26, 2016, at San Francisco, California.
4
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Pam W odfin
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1:3
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Farella Boum & Mane! LLP
Russ Building
235 Mot-01;m.y Street
San Francisco. CA 94102
(415) 954-4400
-2PROOF OF SERVICE (Ginsburg v. City of Alameda) RG15791428
32534\5429667.1

City of Alameda Ginsburg Case June 2016

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City of Alameda Ginsburg Case June 2016

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1 Paul R. Kiesel, State Bar No.

KIESEL LAW LLP

7 Thomas A. Kearney, State Bar No. 90045

Moris Davidovitz, State Bar No. 70581

12 Attorneys for Petitioner/Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

16 ZACHARY GINSBURG, on behalf of

Case No. RG15791428

Respondents and Defendants.

Case Filed: October 29, 2015

KIESEL LAW LLP

By passing Proposition 218, the California Constitution was amended to add

In November 2010, California voters approved Proposition 26, the Supermajority

Petitioner/Plaintiff Zachary Ginsburg, based on personal knowledge is currently,

Respondent/Defendant City of Alameda (City) is located in the County of

Respondents/Defendants DOES 1 through 100 are persons or entities whose true

KIESEL LAW LLP

On or about October 29, 2015, counsel for Petitioner/Plaintiff delivered to

The City failed or refused to act on Petitioner/Plaintiffs Claim for Damages by

1 Code section 912.4.

KIESEL LAW LLP

AMP imposes an illegal special tax on residential electric customers because,

Research has revealed no attempts by the City to obtain voter approval of an

KIESEL LAW LLP

15 colluding with commercial-rate payers to implement an illegal cross-category subsidy by which

Government Code Section 905(a) provides an exception from claim filing

In light of the foregoing, Petitioner/Plaintiff, on behalf of himself and all others

CLASS ACTION ALLEGATIONS

Petitioner/Plaintiff brings this class action pursuant to California Code of Civil

3 Procedure section 382 on his own behalf and on behalf of:

All customers of Alameda Municipal Power who were billed for

Petitioner/Plaintiff reserves the right to redefine the Class prior to certification.

This action is properly maintainable as a class action.

KIESEL LAW LLP

How was the reasonable cost of the electricity calculated;

Whether Defendants fees or charges for electricity exceeded the

Whether an election must be held before Defendants may impose the

electricity charges upon Petitioner/Plaintiff and the Class members;

Whether Defendants actions violate Articles XIII C and XIII D of the

Whether Petitioner/Plaintiff and other Class members have been damaged

by Defendants actions or conduct;

The proper measure of damages; and

Whether Petitioner/Plaintiff and other Class members are entitled to

Petitioner/Plaintiff is committed to prosecuting this action and has retained

KIESEL LAW LLP

The prosecution of separate actions by individual Class members could create a

Furthermore, as the damages suffered by some of the individual Class members

Petitioner/Plaintiff anticipates no unusual difficulties in the management of this

1 litigation as a class action.

3 fair and efficient adjudication of this action.

FIRST CAUSE OF ACTION

Petition for Writ of Mandate

Petitioner/Plaintiff hereby incorporates by reference each of the preceding

9 allegations as though fully set forth herein.

KIESEL LAW LLP

Accordingly, Petitioner/Plaintiff is entitled to a writ of mandate pursuant to Code of

Petitioner/Plaintiff hereby incorporates by reference each of the preceding

26 allegations as though fully set forth herein.

An actual, present, and substantial controversy exists between Petitioner/Plaintiff

Petitioner/Plaintiff and other Class members have no adequate remedy at law.

KIESEL LAW LLP

Petitioner/Plaintiff hereby incorporates by reference each of the preceding

12 allegations as though fully set forth herein.

Petitioner/Plaintiff is entitled to, and seeks, an injunction pursuant to Code of Civil