city of alameda ginsburg case june 2016

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SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE

AND SECOND AMENDED CLASS ACTION COMPLAINT

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Paul R. Kiesel, State Bar No. 119854 [email protected] Jeffrey A. Koncius, State Bar No. 189803 [email protected] Nicole Ramirez, State Bar No. 279017 [email protected] KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, California 90211-2910 Tel: 310-854-4444 Fax: 310-854-0812 Thomas A. Kearney, State Bar No. 90045 [email protected] Prescott W. Littlefield, State Bar No. 259049 [email protected] KEARNEY LITTLEFIELD, LLP 3436 N. Verdugo Rd., Ste. 230 Glendale, California 91208 Tel: 213-473-1900 Fax: 213-473-1919 Attorneys for Petitioner/Plaintiff ZACHARY GINSBURG, on behalf of himself and all others similarly situated

Moris Davidovitz, State Bar No. 70581 [email protected] DAVIDOVITZ + BENNETT 101 Montgomery Street, Suite 2550 San Francisco, California 94104-4176 Tel: 415-956-4800 Fax: 415-788-5948

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA

ZACHARY GINSBURG, on behalf of himself, and all others similarly situated,

Petitioner and Plaintiff,

v. CITY OF ALAMEDA, and DOES 1 through 100,

Respondents and Defendants.

Case No. RG15791428 Hon. George Hernandez, Jr. CLASS ACTION SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE and SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REFUND OF ILLEGAL TAX DEMAND FOR JURY TRIAL Case Filed: October 29, 2015 Trial Date: Not yet assigned

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1 SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE


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Petitioner/Plaintiff Zachary Ginsburg, on behalf of himself and the Class of all other

similarly situated persons defined below, alleges all of the following upon information and belief,

except as to those paragraphs that state specifically that they are alleged on personal knowledge, as

follows:

INTRODUCTION

1. Proposition 218, the Right to Vote on Taxes Act, was passed by the people of

California in November 1996. The measure stated its purpose “was intended to provide effective

tax relief and to require voter approval of tax increases. However, local governments have

subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate

the purposes of voter approval for tax increases, but also threaten the economic security of all

Californians and the California economy itself. This measure protects taxpayers by limiting the

methods by which local governments exact revenue from taxpayers without their consent.”

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

Articles XIII C and XIII D. Article XIII C dealt with voter approval for local government general

taxes and special taxes. Article XIII D sets forth procedures, requirements and voter approval

mechanisms for local government assessments, fees and charges. This action pertains to both

Articles, relating to taxes, fees and charges wrongly imposed by Defendants herein.

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

Vote to Pass New Taxes and Fees Act. Proposition 26 further amended Article XIII C to clarify

that “[t]he local government bears the burden of proving by a preponderance of the evidence that a

levy, charge, or other exaction is not a tax, that the amount is no more than necessary to cover the

reasonable costs of the governmental activity, and that the manner in which those costs are

allocated to a payor bear a fair or reasonable relationship to the payor’s burdens on, or benefits

received from, the governmental activity.”

4. Petitioner/Plaintiff brings this action, on behalf of himself and all others similarly

situated, to compel Respondents/Defendants to comply with Propositions 218 and 26. Specifically,

he seeks to enjoin Respondents/Defendants from illegally transferring “surplus” funds collected

under the guise of fees charged for electricity, into the General Fund of the City of Alameda. He

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also seeks a refund of such sums and to obtain voter approval for what is in effect a tax.

PARTIES

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

and has been since 2005, a resident of Defendant the City of Alameda. Based on personal

knowledge, at all times, Petitioner/Plaintiff has paid the electricity fees at issue herein and at no

time did Mr. Ginsburg vote on any increase to his electricity rates.

6. Respondent/Defendant City of Alameda (“City”) is located in the County of

Alameda, State of California. At all times herein mentioned, the City provides electrical power to

its citizens through a department it runs which is called “Alameda Municipal Power” (“AMP”).

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

names and identities are currently unknown to Petitioner/Plaintiff. This Complaint will be

amended to allege the true names and capacities of these fictitiously named Defendants when they

are ascertained. Each of the fictitiously named Defendants is responsible for the conduct alleged in

this Complaint. Through their conduct, the fictitiously named Defendants caused damages to

Petitioner/Plaintiff and the Class. At all times mentioned herein, each Defendant was acting as the

agent and/or employee of each of the remaining Defendants and was at all times acting within the

purpose and scope of such agency and employment. In doing the acts alleged herein, each

Defendant, and its officers, directors, members, owners, principals, or managing agents (where the

Defendant is a corporation, limited liability company, or other form of business entity) authorized

and/or ratified the conduct of each other Defendant and/or of his/her/its employees.

GOVERNMENT CLAIM

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

Defendant City of Alameda a written Claim for Damages, on behalf of Petitioner/Plaintiff and all

others similarly situated, pursuant to California Government Code section 910, et seq., and City of

San Jose v. Superior Court, 12 Cal. 3d 447 (1974).

9. The City failed or refused to act on Petitioner/Plaintiff’s Claim for Damages by

December 14, 2015, or within 45 days after the Claim was presented to the City. Thus,

Petitioner/Plaintiff’s Claim is deemed to have been rejected, pursuant to California Government

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Code section 912.4.

GENERAL ALLEGATIONS

10. The City operates AMP which is overseen by the Alameda Public Utilities Board.

Through AMP, the City provides electricity to its citizens. For that service, it collects fees from

the users on a monthly basis. The electricity services it provides are property-related services, and

the fees and charges are imposed by the City upon parcels and persons as an incident of property

ownership.

11. The City has engaged in, and continues to engage in, the illegal transfer of funds

collected by AMP into the City’s General Fund. Such transferred funds are not earmarked or

designated for any specific purpose such as for reimbursement of shared costs, but instead are used

for general purposes. In this regard, AMP states on its website, “We maintain local control so that

we can re-invest in the island and provide value to enrich our lives, businesses and the community.

In fact, since 1887, AMP has contributed more than $75 million to the City of Alameda’s General

Fund.” https://www.alamedamp.com/about-us/history-2 (last visited October 28, 2015).

12. Such transfers to the General Fund do not occur by happenstance. As set forth in its

January 2015 five-year strategic plan, an ongoing goal of the City has been to set rates so as to

“Ensure mutually-agreeable transfer to City”. This notion is repeated: “We support Alameda

through our annual transfer of funds.” In other words, the rates Petitioner/Plaintiff and the

members of the Class are paying for electricity exceed the actual cost of the City providing the

service and are set intentionally so as to create a surplus to achieve the transfer into its General

Fund.

13. This action is based on violation of the State Constitution, Article XIII C, Section

1(e) which provides that a tax is any charge of any kind imposed by a local government for a

specific government product that exceeds the reasonable costs to the local government of

providing the product, and Article XIII D, Section 6(b) which provides that a user charge for a

property related service (1) shall not exceed the funds required to provide that service, and (2)

which requires that the amount of a charge imposed upon a person shall not exceed the

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,

among other reasons; (a) the charge imposed on them for electric service includes surplus capital

raised by AMP that is transferred to the City and results in electric charges that are not, and cannot

be, cost justified; (b) AMP has been illegally providing the City with free electrical power for its

street lights at ratepayer expense since about July 1, 2013; (c) AMP has also paid the City

excessive amounts for services provided by the City to AMP; (d) AMP has imposed an improper

and illegal tiered rate system upon its residential customers; and (e) commercial electrical

customers pay less for power than do residential and public authority rate payers, which is an

illegal cross-category subsidy.

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

otherwise illegal transfer of utility fees to the City’s General Fund. Total costs of the illegal

transfer can be apportioned by multiplying the total amount of the transfer by each customer’s

percentage of total energy usage.

16. The City has engaged in the illegal expenditure and waste of city funds by a)

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

residential and public authority rate payers are charged more for power than commercial electrical

customers, and b) budgeting and spending money in administering illegal ordinances, which

include Alameda Municipal Code sections 3-28.9, 3-28.10, and Alameda City Charter Article XII

section 6, which allow for the transfer of “surplus” funds from AMP into the City’s General Fund.

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

requirements for money claimed under a statute prescribing procedures for the refund,

cancellation, modification or adjustment of any tax or fee, or any portion thereof. Article XIII C

and D of the State Constitution were enacted and amended by State Propositions 218 and 26, and

Government Code Section 811.8 defines “statute” to mean enactments adopted by the people of

California by initiative act.

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

similarly situated, seeks relief from the illegal tax, return of all sums illegally collected and the

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

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

All customers of Alameda Municipal Power who were billed for electricity from October 2012 through the present.

20. The following persons and entities shall be excluded from the Class: (a) all persons

who make a timely election to be excluded from the proposed Class, and (b) the judge(s) to whom

this case is assigned and any immediate family members thereof. Also excluded are claims for

personal injury alleged to have been suffered by any member of the Class.

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

Class members is impracticable. While Petitioner/Plaintiff does not presently know the exact

number of Class members, AMP states on its website that it provides power to more than 34,000

customers. Class members can be determined and identified through AMP’s and Defendants’

records and, if necessary, other appropriate discovery.

24. There are questions of law and fact that are common to Class members and which

predominate over any questions affecting only individual members of the Class. A class action

will generate common answers to the below questions, which are apt to drive the resolution of the

litigation:

a. What was the reasonable cost of the electricity provided to

Petitioner/Plaintiff and the members of the Class;

b. How was the reasonable cost of the electricity calculated;

c. Whether Defendants’ fees or charges for electricity exceeded the

proportional cost of the service attributable to parcels owned by Petitioner/Plaintiff and the

members of the Class;

d. Whether the rates charged by Defendants for electricity exceed the cost of

service and, as a result, operate as a tax not voted on by the citizens;

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e. Whether Defendants’ actions violate Articles XIII C and XIII D of the

California Constitution;

f. Whether an election must be held before Defendants may impose the

electricity charges upon Petitioner/Plaintiff and the Class members;

g. Whether Petitioner/Plaintiff and other Class members have been damaged

by Defendants’ actions or conduct;

h. The proper measure of damages; and

i. i. Whether Petitioner/Plaintiff and other Class members are entitled to

injunctive relief.

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

competent counsel experienced in litigation of this nature. Petitioner/Plaintiff’s claims are typical

of the claims of other Class members and Petitioner/Plaintiff has the same interests as other Class

members. Petitioner/Plaintiff has no interests that are antagonistic to, or in conflict with, the

interests of the other members of the Class. Petitioner/Plaintiff is an adequate representative of the

Class and will fairly and adequately protect the interests of the Class.

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

risk of inconsistent or varying adjudications with respect to individual members of the Class,

which could establish incompatible standards of conduct for Defendants or adjudications with

respect to individual members of the Class which would, as a practical matter, be dispositive of

the interests of the members of the Class not parties to the adjudications.

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

may be relatively small, the expense and burden of individual litigation makes it impracticable for

the individual members of the Class to redress the wrongs done to them individually. If a class

action is not permitted, Class members will continue to suffer and Defendants’ misconduct will

continue without proper remedy.

28. Defendants have acted and refused to act on grounds generally applicable to the

entire Class, thereby making relief appropriate with respect to the Class as a whole.

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

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litigation as a class action.

30. For the above reasons, a class action is superior to other available methods for the

fair and efficient adjudication of this action.

FIRST CAUSE OF ACTION

Petition for Writ of Mandate Pursuant to Code of Civil Procedure section 1085 (By Petitioner/Plaintiff Against All Respondents)

31. Petitioner/Plaintiff hereby incorporates by reference each of the preceding

allegations as though fully set forth herein.

32. Defendants’ charges for electricity above the cost of electricity were not approved

by the voters in spite of the restrictions imposed by Propositions 218 and 26 and Articles XIII C

and XIII D of the California Constitution.

33. All amounts transferred to Defendants’ General Fund from the electrical rates are

illegal taxes, and all amounts for electrical rates based on the conduct alleged in Paragraph 14

above are illegal taxes.

34. The imposition and collection of the illegal taxes from Petitioner/Plaintiff and the

Class was, and is, improper because it is a violation of the State Constitution, Articles XIII C and

XIII D. The imposition of the illegal taxes has caused Petitioner/Plaintiff and the Class to suffer

monetary damages in amounts according to proof at trial, plus interest thereon.

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

Civil Procedure section 1085 so as to ensure compliance with the law by the City.

SECOND CAUSE OF ACTION

Declaratory Relief (By Petitioner/Plaintiff Against All Defendants)



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

and Defendants. Petitioner/Plaintiff contends that Defendants have violated, and continue to

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violate, the California Constitution. Defendants will no doubt contend that they have complied

with the law.

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

parties with respect to which this Court should enter a declaratory judgment determining the rights

and obligations of each. Petitioner/Plaintiff contends that such judgment should determine that the

conduct complained of herein is illegal.

THIRD CAUSE OF ACTION

Injunction Pursuant to C.C.P. § 526a (Petitioner/Plaintiff Against All Defendants)



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

Procedure section 526a to enjoin Defendants from their illegal expenditure and waste of city funds

– to wit, a) Defendants’ collusion with commercial-rate payers to implement an illegal cross-

category subsidy by which residential and public authority rate payers are charged more for power

than commercial electrical customers, and b) Defendants’ budgeting and spending money in

administering the illegal ordinances, which include Alameda Municipal Code sections 3-28.9, 3-

28.10, and Alameda City Charter Article XII section 6, which allow for the transfer of “surplus”

funds from AMP into the City’s General Fund, and the other conduct set forth in Paragraphs 14-16

herein – and further to restore all funds illegally transferred as set forth herein.

FOURTH CAUSE OF ACTION

Refund of Illegal Tax (Petitioner/Plaintiff Against All Defendants)



43. Petitioner/Plaintiff has substantially complied with any applicable requirements to

exhaust his administrative remedies pursuant to Government Code section 945.6.

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44. Defendants never submitted the charges for electricity that exceed costs to the

electorate for a vote.

45. Proposition 218, as amended by Proposition 26, is designed to “protect[] taxpayers

by limiting the methods by which local governments exact revenue from taxpayers without their

consent.” (Prop. 218 § 2)

46. Local governments must submit to the electorate for approval by vote laws that

“impose, extend, or increase” any tax. (Cal. Const., art. XIII C, § 2(b), (d).)

47. Defendants’ collection of electricity rates without voter approval that exceed the

costs of providing the service violates Proposition 218 as amended by Proposition 26.

48. Because the rates are in violation of Proposition 218 as amended by Proposition 26,

they are unconstitutional under the California Constitution, are invalid and inapplicable.

49. For all of the foregoing reasons, Petitioner/Plaintiff and the Class have overpaid for

electricity and thus are entitled to recovery in the form of a refund plus interest thereon.

PRAYER FOR RELIEF

WHEREFORE, Petitioner/Plaintiff, individually and on behalf of all others similarly

situated, hereby prays that the Court determine that this action may be maintained as a class action

and further prays that the Court enter judgment in his favor and against the Defendants, as follows:

1. An order certifying the proposed Class, designating Petitioner/Plaintiff as the

named representative of the Class, and designating the undersigned as Class

Counsel;

2. A refund to Petitioner/Plaintiff and the Class for all monies illegally collected in an

amount to be proven at trial;

3. Injunctive relief;

4. An award of attorneys’ fees and costs, as allowed by law, including, but not limited

to, under California Code of Civil Procedure section 1021.5;

5. An award of pre-judgment and post-judgment interest, as provided by law;

6. For the issuance of a writ of mandate directing Respondents/Defendants to stop all

transfers of “surplus” sums collected for electricity charges into the General Fund

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10SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE


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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. 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.

DATED: March 15, 2016 Respectfully submitted,

KIESEL LAW LLP

By: Paul R. Kiesel Jeffrey A. Koncius Nicole Ramirez

DAVIDOVITZ + BENNETT Moris Davidovitz

KEARNEY LITTLEFIELD, LLP Thomas A. Kearney Prescott W. Littlefield

Attorneys for Petitioner/Plaintiff ZACHARY GINSBURG

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11SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE


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DEMAND FOR JURY TRIAL

Plaintiff, on behalf of himself and the Class of all others similarly situated, demands a trial

by jury as to all issues so triable.

DATED: March 15, 2016 Respectfully submitted,

KIESEL LAW LLP

By: Paul R. Kiesel Jeffrey A. Koncius Nicole Ramirez

DAVIDOVITZ + BENNETT Moris Davidovitz

KEARNEY LITTLEFIELD, LLP Thomas A. Kearney Prescott W. Littlefield

Attorneys for Petitioner/Plaintiff ZACHARY GINSBURG

VE[Uf'lcA·noN

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,'.'.

5 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.!

7 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

9 lhc Cuy of Ida 1>-1g....~g.. , Cahfom1a..

IO ' Dated: MarchlL lOlti fl

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2S

ZAC~ARY Gh"'IJSBURG

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1PROOF OF SERVICE

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PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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 Wilshire Boulevard, Beverly Hills, CA 90211-2910.

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 AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REFUND OF ILLEGAL TAX; VERIFICATION on the interested parties in this action as follows:

SEE ATTACHED SERVICE LIST

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 mailing, following our ordinary business practices. I am readily familiar with Kiesel Law LLP’s practice for collecting and processing correspondence for mailing. On the same day that the 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.

BY ELECTRONIC MAIL: I hereby certify that I served the above-described document 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 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on March 15, 2016 at Beverly Hills, California.

Jessica Mendez

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2 PROOF OF SERVICE

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SERVICE LIST

Ginsburg v. City of Alameda

Case No. RG15791428 Thomas A. Kearney, Esq. ([email protected]) Prescott W. Littlefield, Esq. ([email protected]) KEARNEY LITTLEFIELD, LLP 3436 N. Verdugo Rd., Ste. 230 Glendale, California 91208 Tel: 213-473-1900 Fax: 213-473-1919

Attorneys for Petitioner/Plaintiff ZACHARY GINSBURG, on behalf of himself and all others similarly situated

Moris Davidovitz, Esq. ([email protected]) DAVIDOVITZ + BENNETT 101 Montgomery Street, Suite 2550 San Francisco, California 94104-4176 Tel: 415-956-4800 Fax: 415-788-5948

Attorneys for Petitioner/Plaintiff ZACHARY GINSBURG, on behalf of himself and all others similarly situated

Thomas B. Mayhew, Esq. ([email protected]) Claire M. Johnson, Esq. ([email protected]) 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

r

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.


informed and admits that Proposition 218 added Articles XIII C and XIII D to the California

Constitution. Alameda avers that no answer is required to the remaining allegations of Paragraph

2 to the extent they consist of legal conclusions. Alameda denies each and every allegation in

Paragraph 2 directed at it.


informed and admits the alleged text of Article XIII C of the California Constitution. Alameda

further is informed and admits that Proposition 26 was adopted by California voters in November

2010. Alameda avers that no answer is required to the remaining allegations of Paragraph 3 to

the extent they consist of legal conclusions.

4. In answer to the allegations contained in Paragraph 4 of the Complaint, Alameda

avers that no answer is required to the extent the allegations consist of legal conclusions.

Alameda denies each and every allegation in Paragraph 4 directed at it. Alameda further lacks

information or belief to answer each and every remaining allegation of Paragraph 4 of the

Complaint, and basing its denial on that ground, denies each and every remaining allegation

contained therein.

5. Alameda lacks information or belief to answer the allegations contained in

Paragraph 5 of the Complaint, and, basing its denial on that ground, denies each and every

allegation contained therein. - 2 - 32534\5395911.1

CITY OF ALAMEDA'S ANSWER TO SECOND AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND SECOND AMENDED COMPLAINT

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1 6. In answer to the allegations contained in Paragraph 6 of the Complaint, Alameda

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

allegation contained therein.


admits that Petitioner/Plaintiff submitted a Claim for Damages ("Claim") pursuant to California

Government Code Gov. Code, § 900 et. seq. and § 910 et. seq in October of 2015. Alameda

further lacks information or belief to answer each and every remaining allegation of Paragraph 8

of the Complaint, and basing its denial on that ground, denies each and every remaining

allegation contained therein.


admits it did not act on the Claim within 45 days of the Claim's presentation. Alameda avers that

no answer is required to the remaining allegations of Paragraph 9 to the extent they consist of

legal conclusions.


admits that Alameda Municipal Power is overseen by the city's Public Utilities Board, pursuant to

Section 12-1 of the Alameda City Charter. Alameda further admits that Alameda Municipal

Power provides electricity to certain citizens of the City of Alameda, and that Alameda charges

money for doing so. Alameda avers that no answer is required to the remaining allegations to

extent the allegations consist of legal conclusions. Alameda denies each and every remaining

allegation in Paragraph 10 of the Complaint.



Alameda admits the accuracy of the quoted text from the Alameda Municipal Power website, but

denies each and every remaining allegation contained therein. - 3 -


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1 12. In answer to the allegations contained in Paragraph 12 of the Complaint, Alameda


Alameda admits that the quoted material appears in its January 2015 five-year strategic plan, but

denies each and every remaining allegation contained therein.



Alameda denies each and every allegation in Paragraph 13 directed at it.



Alameda denies each and every remaining allegation in Paragraph 14 of the Complaint.









Alameda further lacks information or belief to answer each and every remaining allegation of

Paragraph 17 of the Complaint, and basing its denial on that ground, denies each and every

remaining allegation contained therein.

18. Alameda denies each and every allegation in Paragraph 18 of the Complaint.



Alameda further denies each and every allegation in Paragraph 19 of the Complaint.



Alameda further denies each and every allegation in Paragraph 20 of the Complaint. - 4 - 32534\5395911.1


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San Francisco, CA 94104 (415) 954-4400

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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.



avers that no answer is required to the extent the allegation consists of a legal conclusion.










Alameda further lacks information or belief to answer the allegations contained in Paragraph 25

of the Complaint, and, basing its denial on that ground, denies each and every allegation

contained therein.








avers that no answer is required to the extent the allegation consists of a legal conclusions.



avers that no answer is required to the extent the allegation consists of a legal conclusion. - 5 - 32534\5395911.1




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.


Alameda further avers that no answer is required to the extent the allegations consist of legal

conclusions.



conclusions.



conclusions.



conclusions.



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.


Alameda further avers that no answer is required to the extent the allegation consists of a legal

conclusions.



conclusions.

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contained therein.





contained therein.



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conclusion.


Alameda further avers that no answer is required to the extent the allegation consists of a legal - 7 - 32534\5395911.1


conclusion.

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)

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.

Second Affirmative Defense (Failure to State a Claim)

As a second, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner fails to state facts sufficient to state a cause of action for which relief can be

granted.

Third Affirmative Defense (Failure to Exhaust Administrative Remedies)

As a third, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner is barred from bringing or maintaining this action because he has failed to

exhaust his administrative remedies.

Fourth Affirmative Defense (Statute of Limitations)

As a fourth, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner is barred from bringing or maintaining this action by the application of the

statute of limitations, including that proscribed by Cal. Gov . Code § 911.2 (a) and Cal. Pub. Util.

Code §10004.5.

Fifth Affirmative Defense (Equitable Defenses)

As a fifth, separate and distinct affirmative defense, Alameda alleges that - 8 -


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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)

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.

Seventh Affirmative Defense (Inadequate Pleading)

As a seventh, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner failed to properly plead the causes of action stated in the Petition.

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 Ninth Affirmative Defense

(No Beneficial Interest) 17

18 As an ninth, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner is not beneficially interested in the proceedings.

Tenth Affirmative Defense (Other Remedy Available)

22 As a tenth, separate and distinct affirmative defense, Alameda alleges that

Plaintiff/Petitioner has an adequate remedy other than writ of mandamus.

Eleventh Affirmative Defense (Actions Taken in Good Faith and Lawfully)

26 As an eleventh, separate and distinct affirmative defense, Alameda alleges that any acts

that have been taken with respect to Plaintiff/Petitioner have been in good faith, have been


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235 Monigomery Street, 17th Floor San Francisco, CA 94104

(415) 954-4400

FARELLA BRAUN + MARTEL LLP

By: Thomas B. Mayhew

Dated: April 26, 2016

_ [ _

reasonable and prudent, and have been consistent with all applicable legal state and federal

constitutional standards.

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;

5. That Alameda be awarded of costs of suit incurred herein, and attorneys' fees, if

permitted by law; and

6. For such other relief as this Court may deem just and proper.

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Attorney for Defendants/Respondents CITY OF ALAMEDA

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235 Montgomery Street, 17th Floor San Francisco, CA 94104

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1 PROOF OF SERVICE

I, the undersigned, declare:

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

[email protected] . On April 26, 2016, I served a copy of the within document(s):

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7 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

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11 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.

12 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.

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20 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. KEARNEY LITTLEFIELD, LLP 3436 n. Verduco Road, Suite 230 Glendale, CA 91208 Telephone: 213-473-1900 Fax: 213-473-1919

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25 Moris Davidovitz, Esq. DAVIDOVITZ + BENNETT 101 Montgomery Street, Suite 2550 San Francisco, CA 94101-4176 Telephone: 415-956-4800 Fax: 415-788-5948

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PROOF OF SERVICE — (Ginsburg v. City of Alameda) RG15791428

Farella Braun & Martel LLP Russ Building

235 Montgomery Street Ran Francisco. CA 94104

(415) 054-4400

I declare under penalty of perjury under the laws of the State of California that the above

is true and correct.

Executed on April 26, 2016, at San Francisco, California.

Pam W odfin

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PROOF OF SERVICE — (Ginsburg v. City of Alameda) RG15791428

32534\5429667.1

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235 Mot -01;m.y Street

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(415) 954-4400

city of alameda ginsburg case june 2016

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