The URL can be used to link to this page

Addendumtows o< f �OS.eatos COUNCIL AGENDA REPORT DATE: FEBRUARY 14, 2014 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER MEETING DATE: 02/18/14 ITEM NO: 9 ADDENDUM SUBJECT: DISCUSSION AND DIRECTION REGARDING A TOWN - INITIATED BALLOT MEASURE PERTAINING TO DEVELOPMENT AT ALBRIGHT WAY REMARKS: After the staff report for this agenda items was distributed for this agenda item, additional correspondence was received related to this agenda item (Attachment 2). Attachment 1 (previously received): 1. Office of the Town Attorney Memorandum dated February 12, 2014 Attachment Received with this Addendum: 2. Public comments received from 3:00 p.m. February 3, 2014, through 2:00 p.m. Friday, February 14, 2014 PREPARED BY: GREG LARSON Town Manager Reviewed by: Assistant Town Manager own Attorney Finance NAMGR \AdminWorkFile \2014 Council Reports\ 2- 18- 14.TownBallotMeasum.Albright Addendum.doc THIS PAGE INTENTIONALLY LEFT BLANK Subject: FW: Albright Ballot - - - -- Original Message---- - From: John Shepardson [mailto:shepardsonlaw@me.com] Sent: Tuesday, February 04, 2014 11:09 PM To: Steven Leonardis; Council; Greg Larson Subject: Albright Ballot Mr. Mayor, Council and Town Manager: 1. Can we get a legal opinion on whether the TC can offer its own Ballot measure that is the same or different from the TC approved project? To what extent can the Town Council support it? 2. Must a counter Ballot measure be decided upon at the February 18 or March 3 TC meetings? What is the latest a counter Ballot measure could be put on the June Ballot? What deadlines must be met to have it on the June Ballot? 3. Could a Ballot measure from a citizens group that passes in November trump any Ballot measure that passes in June? 4. Is the Ballot measure by the Developer a rejection of the existing approval? Thank you for considering this request. John Shepardson, Esq. Sent from my Phone ATTACHMENT2 t Subject: FW: Allow the public a clear choice between the approved project and the Developer's proposal From: Jeff Loughridge [ma ilto:lokrij(cOcomcast.net] Sent: Wednesday, February 05, 2014 8:13 AM To: Steven Leonardis; Marcia Jensen; BSpector; Diane McNutt; Joe Pirzynski; Council Subject: Allow the public a clear choice between the approved project and the Developer's proposal Dear Mr. Mayor, Town Council and Town Staff, I wanted to thank you all for agreeing that a report is necessary to more fully understand the developer's initiative. After reading the initiative I believe it is in the best interest of the town to defeat it in June. Considering that the developer's lawyers put it together, and that's specifically what that law firm does, it would only make sense that they incorporated benefits for the developer throughout. had a chance to talk with our town attorney after last night's meeting and wanted to relay his comments. When asked whether Council indeed had the authority to put an initiative straight onto the ballot without gathering signatures using Election Code Section 9222, he confirmed that that was true. He did stress though, that the time to do this was very tight. The town's version of the initiative would need to be approved at the March 3rd Town Council Meeting. This initiative, which presumably would be the same Albright Way plan as what the Town Council approved in June 2013, would take of at least two outstanding issues. It would render any pending litigation moot. It would also put to rest the developer's lies about the two plans being the same. They definitely are not. In addition it would allow the Town Council to take a stand for what they had already approved and by introducing its own ballot measure, the TC would assert its authority in land use matters, and allow the public a clear choice between the approved project and the Developer's proposal. I sincerely hope that you take this course of action. I enjoy possibly a bit more than I show it, the ability to be able to participate in our town government and I would hate to see that go away, even a little bit. Respectfully, Jeff Loughridge Jeff Loughridge �OkrlllaGOm Cast. net Subject: FW: Albright Ballot Initiative (Urgent Action Requested) From: John Shepardson [mailto:shepardsonlawCabme.coml Sent: Wednesday, February 05, 2014 3:04 PM To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pirzynski; BSpector; Greg Larson; Council Subject: Albright Ballot Initiative (Urgent Action Requested) Dear Mayor, Town Council Members and Town Manager: 1. I urge you to place an alternative Ballot in the June election, on terms you see fit, and in light of new information from the report. 2. I urge you to act immediately, as I understand it, such TC action must occur by or at the March 3, 2013 meeting. 3. Such a Ballot measure could provide a reasonable alternative to the present Ballot measure which seeks to strip the Town of traditional oversight responsibility. Transferring land use oversight from the DRC, PC and TC is a clear and present danger to Town sovereignty. 4. A confused public due to the campaign of misleading information (see mailer "compromise project" referred to as both approved project and proposed project) would benefit from a clear choice that highlighted the differences between what has been approved and what is being proposed. 5. I realize that seeking such a Ballot measure may assist in cutting off our group's and my own legal rights to challenge the violation of the 35 -foot maximum height limit. However, we are now dealing with a Ballot proposal that is bad now, and horrible precedent for the Town. 6. Our citizens group has not been even remotely close to matching the $200,000 the Developer (Carlyle) has already poured into promoting the Ballot measure. It's also a little spooky to have what appears to be many of the Developer's representatives at the TC meeting taking note of anyone that opposes their quest for maximizing profits at the expense of the Town. Carlyle touts its ability to "add value" to investments, and apparently they intended to do that by stripping Town oversight, so the new owner could sail through a CDD review of land use changes. Thank you for considering this email. John Shepardson, Esq. JOHN A. SHEPARDSON, ESQ. 1 ),3L- 59 N. Santa Cruz Avenue, Suite Q Los Gatos, CA 95030 T: (408) 395 -3701 F: (408) 395 -0112 CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is confidential information that may be privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or if you received this message in error, then any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A. SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this message; and destroy all copies, including attachments. Thank you. IRS CIRCULAR 230 DISCLOSURE To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to the extent any advice relating to a Federal tax issue is contained in this communication, including in any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a) avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code, or (b) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. /a Subject: FW: Counter Ballot Measure: Is there Time for June Election? From: John Shepardson [mailto:shepardsonlaw@me.com] Sent: Wednesday, February 12, 2014 2:02 PM To: Steven Leonardis; Council; Greg Larson; Marcia Jensen; Joe Pirzynski; Diane McNutt; BSpector Subject: Counter Ballot Measure: Is there Time for June Election? Dear Mr. Mayor: Is there time for the TC to put up a counter Ballot measure for the June election? I'm hearing the Town Attorney told someone there is not. JS JOHN A. SHEPARDSON, ESQ. 59 N. Santa Cruz Avenue, Suite Q Los Gatos, CA 95030 T: (408) 395 -3701 F: (408) 395 -0112 CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is confidential information that may be privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or if you received this message in error, then any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A. SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this message; and destroy all copies, including attachments. Thank you. IRS CIRCULAR 230 DISCLOSURE To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to the extent any advice relating to a Federal tax issue is contained in this communication, including in any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a) avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code, or (b) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. 1) THIS PAGE INTENTIONALLY LEFT BLANK a rd30y-} a -lLl- ) H t 130 Subject: FW: Albright: Owens v. City of LA From: John Shepardson [mailto:shepardsonlaw @me.com] Sent: Friday, February 14, 2014 11:36 AM To: Steven Leonardis; Marcia Jensen; Diane McNutt; Joe Pirzynski; BSpector; Greg Larson; Robert Schultz; Council Subject: Albright: Owens v. City of LA 220 Cal. App. 4th 107, *; 162 Cal. Rptr. 3d 769, * *; (emphasis added with large letters and /or bold type) 2013 Cal. App. LEXIS 787, * ** PATRICK OWENS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent. LARRY PITTS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. B242291,B242393 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE 220 Cal. App. 4th 107; 162 Cal. Rptr. 3d 769; 2013 Cal. App. LEXIS 787 October 2, 2013, Opinion Filed SUBSEQUENT HISTORY: Review denied by Owens v. County of L.A., 2013 Cal. LEXIS 9838 (Cal., Dec 11, 2013) PRIOR HISTORY: [ ** *1] APPEALS from a judgment and an order of the Superior Court of Los Angeles County, Nos. BC419572 & BC334027, John Shepard Wiley, Jr., Judge. Oronoz (Joe) & Pitts (Larry) v. County of Los Angeles, 2013 Cal. App. LEXIS 156 (Cal. App. 2d Dist., Jan 23, 2013) Owens (Patrick) v. County of Los Angeles, 2013 Cal. App. LEXIS 157 (Cal. App. 2d Dist., Jan. 23, 2013) DISPOSITION: Affirmed CASE SUMMARY PROCEDURAL POSTURE: Two sets of plaintiffs filed separate class actions against defendant county. Both lawsuits challenged the legality of the county's user utility tax (UUT). In the first lawsuit, the Los Angeles County Superior Court, California, entered an order denying plaintiff's motion to enforce a settlement. In the second lawsuit, the trial court entered a final judgment in favor of the county. Both sets of plaintiffs filed timely notices of appeal. OVERVIEW: Regarding the first lawsuit, the appellate court concluded that plaintiff was judicially estopped and barred by the terms of the settlement agreement he executed from pursuing his challenge to the UUT. The trial court did not abuse its discretion in applying judicial estoppel because each of the elements of judicial estoppel was satisfied. Plaintiff took inconsistent positions in judicial proceedings, and plaintiff was successful in asserting his first position. Plaintiff did not take his first position as a result of ignorance, fraud or mistake. Regarding the second lawsuit, the appellate court concluded the ballot 1 a130 materials for a proposed measure to validate the UUT did not violate the voters' due process rights. Plaintiffs could not prevail by merely showing that the county's impartial analysis of the measure did not educate the electorate as to all the legal nuances of the measure. Plaintiffs failed to demonstrate that the ballot materials had profoundly misled the electorate. The measure did not violate plaintiffs' free speech rights under U.S. Const., Ist Amend., or Cal. Const., art. I, § 2, subd. (a). The measure also did not violate Proposition 218 or the Elections Code. OUTCOME: The judgment and order were affirmed. CORE TERMS: election, settlement, voter, settlement agreement, ballot materials, class actions, judicial estoppel, campaign, "impartial, ordinance, voter approval, informational, ballot measure, ballot, special tax, challenging, misleading, public funds, free speech rights, expenditure, entity, applicable law, utility user, process rights, local governments, general fund, estoppel, validate, rent, unincorporated LE%ISNEYIS® HEADNOTES Civil Procedure > Settlements > Settlement Agreements > Enforcement > General Overview *t� HNI See Code Civ. Proc., § 664.6. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Waiver t« HH2 Waiver is the intentional relinquishment of a known right. More Like This Headnote i Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Waiver t, Civil Procedure > Appeals > Standards of Review > Fact & Law Issues t, Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview It Contracts Law > Contract Interpretation > General Overview fill Evidence > Inferences & Presumptions > Inferences t -Hide HN3A trial court's determination of waiver is generally a question of fact. An appellate court must affirm a W waiver finding if it is supported by substantial evidence. When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court's ruling. Likewise, the appellate court independently interprets contracts, if the interpretation does not turn on the credibility of extrinsic evidence. More Like This Headnote Civil Procedure > Settlements > Settlement Agreements > General Overview t, Contracts Law > Types of Contracts > Settlement Agreements +sl HNaA settlement agreement Is simply a contract. More Like This Headnote i 3j 3O Contracts law > Contract Interpretation > Intent III HH5A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Civ. Code, § 1636. When interpreting a written contract, the court generally ascertains the intention of the parties from the writing alone, if possible. Civ. Code, § 1639. A contract, however, may be explained by reference to the circumstances under which it was made, and the matter to which it relates. Civ. Code, § 1647. More Like This Headnote I Shepardize: Restrict By Headnote Civil Procedure > Settlements > Settlement Agreements > Enforcement > General Overview r„ HH6 Code Civ. Proc., § 664.6, grants the parties a streamlined procedure to enforce an agreement they ; made between themselves. More Like This Headnote Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Judicial Estoppel ".�, Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Civil Procedure > Appeals > Standards of Review > De Novo Review 'Ili Civil Procedure > Appeals > Standards of Review > Fact & Law Issues *«. Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview'fai HH'An appellate court reviews the findings of fact upon which the application of judicial estoppel is based } under the substantial evidence test. When the facts are undisputed, the appellate court independently reviews whether the elements of judicial estoppel have been satisfied. Whether the doctrine should be applied even if the necessary elements are satisfied is a matter within the discretion of the trial court, which the appellate court reviews under the abuse of discretion standard. More Like This Headnote Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Judicial Estoppel f 9 HH8Judicial estoppel is an equitable doctrine designed to maintain the integrity of the courts and to protect ; the parties from unfair strategies. The doctrine prohibits a party from asserting a position in a legal proceeding that is contrary to a position he or she successfully asserted in the same or some earlier proceeding. The doctrine rests on the principle that litigation is not a war game unmoored from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial system limits the affirmative duties owed by an advocate to his or her adversary, but that does not mean it frees him or her to deceive courts, argue out of both sides of his or her mouth, fabricate facts and rules of law, or seek affirmatively to obscure the relevant issues and considerations behind a smokescreen of self - contradictions and opportunistic flip - flops. More Like This Headnote Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Judicial Estoppel *_ HN9The elements of judicial estoppel are (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi - judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Even if the necessary elements of judicial estoppel are satisfied, the trial court still has discretion to not apply the doctrine. More Like This Headnote '�-qI3a Governments > Local Governments > Elections IQ HN10 Generally, a challenge to ballot materials must be made before an election■ Indeed,a postelection challenge to ballot materials is not permitted by the California Elections Code. More Like This Headnote Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview V Governments > Local Governments > Elections t] HN11 Determination of how much process is due in a local, direct decisionmaking context where the complained of irregularities consist of omissions, inaccuracies or misleading statements in the ballot materials will depend on whether the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. In conducting this inquiry, courts should examine the extent of preelection publicity, canvassing and other informational activities, as well as the substance or content of such efforts. The ready availability of the text of the ordinance, or the official dissemination and content of other related materials, such as arguments for or against the measure, will also bear on whether the statutory noncompliance rendered the election unfair. Finally, courts should take into account the materiality of the omission or other informational deficiency. Flaws striking at the very nature and purpose of the legislation are more serious than other, more ancillary matters. More Like This Headnote Governments > Legislation > Initiative & Referendum «« Governments > Local Governments > Elections HN12 1 Where the voters are provided the whole text of a proposed law or ordinance, the court ordinarily assumes the voters voted intelligently on the matter. More Like This Headnote Governments > Legislation > Initiative & Referendum tL Governments > Local Governments > Elections ti.'! � X30 HN13 u A party cannot prevail by merely showing that a government entity's impartial analysis or summary of a ballot measure did not educate the electorate as to all the legal nuances of the measure. The party must instead demonstrate that the ballot materials profoundly misled the electorate, More Like This Headnote Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of freedom �«! HN14See Cal. Const., art. I, § 2, subd. (a). Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom t� HN15 See U.S. Const., 1st Amend. A Governments > Legislation > Initiative & Referendum fps: Governments > Local Governments > Elections t "NI 6A distinction exists between a public agency's improper "campaign" expenditures and proper "informational" activities. The use of public funds to purchase such items as bumper stickers, posters, advertising "floats," or television and radio "spots" unquestionably constitutes improper campaign activity, as does the dissemination, at the public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. On the other hand, it is generally accepted that a public agency pursues a proper "informational" role when it simply gives a fair presentation of the facts in response to a citizen's request for information or, when requested by a public or private organization, it authorizes an agency employee to present the department's view of a ballot proposal at a meeting of such organization. In some cases the line between unauthorized campaign expenditures and authorized informational activities is not so clear. In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication. More Like This Headnote E Governments > Legislation > Initiative & Referendum! Governments > Local Governments > Elections E) HN12 A governmental entity is not precluded from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure ■ More Like This Headnote Governments > Legislation > Initiative & Referendum f.. Governments > Local Governments > Elections ti Governments > Local Governments > Finance t Tax Law > State & Local Taxes > General Overview HN18Proposition 218 generally prohibits local governments from imposing taxes without voter ± approval. More Like This Headnote Governments > Local Governments > Elections til Governments > Local Governments > Finance« Tax Law > State & Local Taxes > General Overview f«,,: HN19See Cal. Const., art. XIII C, § 2, subd. (c). Governments > Local Governments > Elections ttl Governments > Local Governments > Finance t" Tax Law > State & Local Taxes > General Overview HN20A general tax can be imposed by a majority vote, while a special tax needs a two - thirds vote for t approval. Cal. Const., art. XIII C, § 2, subds. (c) & (d). More Like This Headnote 2 -7130 Governments > Local Governments > Finance to Tax Law > State & Local Taxes > General Overview t ; ""'A A special tax means any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund. Cal. Const., art. XIII C, § 1, subd. (d). The essence of a special tax is that its proceeds are earmarked or dedicated in some manner to a specific project or projects. More Like This Headnote Governments > Legislation > Initiative & Referendum«' Governments > Local Governments > Elections tJ Governments > Local Governments > Employees & Officials t " "22 Elec. Code, § 9105, subd. (a), requires county counsel to provide an impartial statement of the purpose of a proposed measure in a summary placed on the ballot. Elec. Code, § 9160, subd. (b), requires county counsel to provide an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. More Like This Headnote HEADNOTES /SYLLABUS SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY 9Hide Two sets of plaintiffs filed separate class actions against a county. Both lawsuits challenged the legality of the county's utility user tax (UUT). In the first lawsuit, the trial court entered an order denying plaintiffs motion to enforce a settlement. In the second lawsuit, the trial court entered a final judgment in favor of the county. (Superior Court of Los Angeles County, Nos. BC419572 and BC334027, John Shepard Wiley, Jr., Judge.) The Court of Appeal affirmed the judgment and order. Regarding the first lawsuit, the court concluded that plaintiff was judicially estopped and barred by the terms of the settlement agreement he executed from pursuing his challenge to the UUT. The trial court did not abuse its discretion in applying judicial estoppel because each of the elements of judicial estoppel was satisfied. Plaintiff took inconsistent positions in judicial proceedings, and plaintiff was successful in asserting his first position. Plaintiff did not take his first position as a result of ignorance, fraud or mistake. Regarding the second lawsuit, the Court of Appeal concluded the ballot materials for a proposed measure to validate the UUT did not violate the voters' due process rights. Plaintiffs could not prevail by merely showing that the county's impartial analysis of the measure did not educate the electorate as to all the legal nuances of the measure. Plaintiffs failed to demonstrate that the ballot materials had profoundly misled the electorate. The measure did not violate plaintiffs' free speech rights under U.S. Const., 1st Amend., or Cal. Const., art. I, § 2, subd. (a). The measure also did not violate Prop. 218 or the Elections Code. (Opinion by Kitching, J., with Klein, P. J., and Croskey, J., concurring.) [ *108] HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES BE "") +(1) Estoppel and Waiver § 2— Judicial Estoppel — Settlement Agreement— Inconsistent Positions. — Plaintiff was judicially estopped and barred by the terms of a settlement agreement he executed from pursuing a challenge to a county's utility user tax. Plaintiff took inconsistent positions in judicial proceedings, and he was successful in asserting his first position. Plaintiff did not take his first position as a result of ignorance, fraud or mistake. [Cal. Forms of Pleading and Practice (2013) ch. 491, Res Judicata, § 491.21.] c"(Z) +(2) Estoppel and Waiver § 18— Definition of Waiver. — Waiver is the intentional relinquishment of a known right. "(3) +(3) Estoppel and Waiver § 18— Determination of Waiver — Question of Fact. —A trial court's determination of waiver is generally a question of fact. c "(4) +(4) Contracts § 1— Settlement Agreement. —A settlement agreement is simply a contract. "(5) 11(5) Contracts § 28— Interpretation— Intention of Parties. —A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful (Civ. Code, § 1636). When interpreting a written contract, the court generally ascertains the intention of the parties from the writing alone, if possible (Civ. Code, § 1639). A contract, however, may be explained by reference to the circumstances under which it was made, and the matter to which it relates (Civ. Code, § 1647). "(6)1(6) Compromise, Settlement, and Release § 11— Settlement Agreements— Enforcement.- Code Civ. Proc., § 664.6, grants the parties a streamlined procedure to enforce an agreement they made between themselves. "(7)1(7) Estoppel and Waiver § 2— Judicial Estoppel — Equitable Doctrine — Inconsistent Positions. — Judicial estoppel is an equitable doctrine designed to maintain the integrity of the courts and to protect the parties from unfair strategies. The doctrine prohibits a party from asserting a position in a legal proceeding that is contrary to a position he or she successfully asserted in the same or some earlier proceeding. The [ *109] doctrine rests on the principle that litigation is not a war game unmoored from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial system limits the affirmative duties owed by an advocate to his or her adversary, but that does not mean it frees him or her to deceive courts, argue out of both sides of his or her mouth, fabricate facts and rules of law, or seek affirmatively to obscure the relevant issues and considerations behind a smokescreen of self - contradictions and opportunistic flip - flops. c "(8) +(8) Estoppel and Waiver § 2— Judicial Estoppel — Elements— Inconsistent Positions. —The elements of judicial estoppel are (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi - judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Even if the necessary elements of judicial estoppel are satisfied, the trial court still has discretion to not apply the doctrine. 'A(').+.(9) Elections § 11— Challenge to Ballot Materials — Preelection Challenge. — Generally, a challenge to ballot materials must be made before an election. Indeed, a postelection challenge to ballot materials is not permitted by the Elections Code. c "(10)1(10) Elections § 11— Challenge to Ballot Materials —Due Process.— Determination of how much process is due in a local, direct decisionmaking context where the complained of irregularities consist of omissions, inaccuracies or misleading statements in the ballot materials will depend on whether the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. In conducting this inquiry, courts should examine the a16 a extent of preelection publicity, canvassing and other informational activities, as well as the substance or content of such efforts. The ready availability of the text of the ordinance, or the official dissemination and content of other related materials, such as arguments for or against the measure, will also bear on whether the statutory noncompliance rendered the election unfair. Finally, courts should take into account the materiality of the omission or other informational deficiency. Flaws striking at the very nature and purpose of the legislation are more serious than other, more ancillary matters. ""')1(11) Elections § II —Text of Proposed Law or Ordinance Provided — Intelligent Voting Assumed. —Where the voters are provided the whole text of a proposed law or ordinance, the court ordinarily assumes the voters voted intelligently on the matter. [ *110] c"t12).+(12) Elections § 11— Challenge to Ballot Materials — Misleading. —A party cannot prevail by merely showing that a government entity's impartial analysis or summary of a ballot measure did not educate the electorate as to all the legal nuances of the measure. The party must instead demonstrate that the ballot materials profoundly misled the electorate. cA(13)+(13) Public Funds § 6— Unauthorized Campaign Expenditures— Authorized Informational Activities. —A distinction exists between a public agency's improper "campaign" expenditures and proper "informational" activities. The use of public funds to purchase such items as bumper stickers, posters, advertising "floats," or television and radio "spots" unquestionably constitutes improper campaign activity, as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. On the other hand, it is generally accepted that a public agency pursues a proper "informational" role when it simply gives a fair presentation of the facts in response to a citizen's request for information or, when requested by a public or private organization, it authorizes an agency employee to present the department's view of a ballot proposal at a meeting of such organization. In some cases the line between unauthorized campaign expenditures and authorized informational activities is not so clear. In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication. c"i14i ±(14) Public Funds § 6— Opinion Regarding Proposed Ballot Measure — Campaign. —A governmental entity is not precluded from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure. c "(15) +(15) Taxation § 2 —Local Governments —Voter Approval. —Prop. 218 generally prohibits local governments from imposing taxes without voter approval. c"(16)+(16) Taxation § 2 —Local Governments — General and Special Taxes —Voter Approval. —A general tax can be imposed by a majority vote, while a special tax needs a two - thirds vote for approval (Cal. Const., art. XIII C, § 2, subds. (c) & (d)). c"(17) +(17) Taxation § 2 —Local Government — Special Tax. —A special tax means any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund ( [ *111] Cal. Const., art. XIII C, § 1, subd. (d)). The essence of a special tax is that its proceeds are earmarked or dedicated in some manner to a specific project or projects. car16�'+(18) Elections § 11— Ballot Measure — Impartial Statement — Purpose and Effect of Proposed Measure. —Elec. Code, § 9105, subd. (a), requires county counsel to provide an impartial statement of the purpose of a proposed measure in a summary placed on the ballot. Elec. Code, § 9160, subd. (b), requires county counsel to provide an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. COUNSEL: Law Offices of Steven F. Carvel and Steven F. Carvel for Plaintiffs and Appellants Patrick Owens and Patricia Munoz. Huskinson, Brown & Heidenreich, Paul E. Heidenreich . and David W.T. Brown . for Plaintiff and Appellant Larry Pitts. ) 613 0 Jones Day, Elwood Lui .111150, Brian D. Hershman . and Erica L. Reilley . for Defendant and Respondent. JUDGES: Opinion by Kitching, J., with Klein, P. J., and Croskey, J., concurring. OPINION BY: Kitching, J. OPINION [* *773] KITCHING,J.— INTRODUCTION In this opinion we adjudicate two appeals challenging a utility user tax (UUT) enacted pursuant to a measure approved by the voters. Appellants contend the UUT is unlawful because it violated the voters' due process and free speech rights and because the tax was imposed in violation of Proposition 218 and the Elections Code. We publish this case to address these important substantive legal issues and to provide an example of when the doctrine of judicial estoppel should apply. The present appeals arise from two separate superior court class actions against defendant and respondent County of Los Angeles (County): [ * * *2] the first by plaintiff and appellant Larry Pitts and the second by plaintiffs and appellants Patrick Owens and Patricia Munoz. Pitts appeals an order denying [ *112] his motion to enforce a settlement and Owens and Munoz appeal a judgment. We affirm the order and the judgment. In both appeals appellants challenge the legality of the County's UUT enacted pursuant to a measure approved by the voters on November 4, 2008 (Measure U). We reject all of appellants' arguments on the merits. cA(i)T(1) We also conclude that Pitts is judicially estopped and barred by the terms of a settlement agreement he executed from pursuing his challenge to the UUT. As we shall explain, the litigation conduct of Pitts and his counsel is precisely the kind of conduct the doctrine of judicial estoppel is meant to prohibit. BACKGROUND 1. The Oronoz /Pitts Class Action —The Challenge to the 1991 UUT In January 1991, the County enacted the Utility User Tax Ordinance (L.A. County Code, § 4.62.010 et seq.), establishing a UUT (the 1991 UUT). The 1991 UUT imposed a 5 percent tax on telephone, electricity and gas usage. In May 2005, Joe Oronoz and Larry Pitts filed a class action suit on behalf of taxpayers in the unincorporated [ * * *3] parts of the County (the Oronoz /Pitts class action) challenging the 1991 UUT on the grounds that it violated Propositions 13 and 62 because it was enacted without voter approval .2 (County of Los Angeles v. Superior Court (2008) 159 Cal.App.4th 353, 357 [71 Cal. Rptr. 3d 485].) The County denies that the 1991 UUT was unlawful. On January 4, 2007, the trial court certified as a class all persons who paid the 1991 UUT since February 16, 2004. FOOTNOTES i Proposition 13, approved by California voters in 1978, was codified in article XIII A to the California 10 f 1130 Constitution. Proposition 62, approved by California voters in 1986, added section 53720 et seq. to the Government Code. z Craig Kaufman and Cheryl Kaufman were added as named plaintiffs in the first amended complaint filed in the Oronoz /Pitts class action. Oronoz, Pitts and the Kaufmans shall sometimes collectively be referred to as the "Oronoz /Pitts plaintiffs." At some point, Joe Oronoz apparently ceased serving as a class representative. [* *774] 2. Short Form Settlement Agreement At a mediation on June 30, 2008, the parties in the Oronoz /Pitts class action executed a two -page short form settlement agreement. The agreement provided that the County would place $10 million in [ * * *4] a general fund to be used to address education, medical needs, homelessness and /or police and fire [ *113] protection in the unincorporated areas of the County. It also stated that the County would place $65 million in a claims fund to be used for taxpayer refunds. The short form settlement agreement also stated: "County to hold an election in November 2008 to validate the UUT pursuant to applicable law at a rate of 4.5 %. County agrees not to seek to raise the UUT rate for a period of 15 years following the election." Additionally, the agreement provided that if the UUT was not approved by the voters, the amount of money collected by the County from July 1, 2008, to the date of election would be added to the claims fund. Appellants contend that the amount of UUT the County was likely to generate during this time period was $25 million. The agreement further provided that the settlement was contingent upon approval by the County Board of Supervisors (Board) and that retired judge Dickran Tevrizian retained "jurisdiction to mediate any disputes in the drafting of the settlement agreement." The agreement also stated that notice to class members of the settlement "shall not be sent until after the [ * * *S] election is held in November, 2008." Class counsel was required by the agreement "to cooperate with the County in seeking voter approval of the UUT." On July 1, 2008, the Board approved of the settlement in the Oronoz /Pitts class action in a closed session. The Board resolved that "[t]he substance of the settlement will be disclosed upon inquiry by any person as soon as the settlement becomes final following approval by all parties." 3. The Ballot Materials Related to Measure U In the official ballot sent to voters in unincorporated areas of the County, Measure U stated: "THE UNINCORPORATED LOS ANGELES COUNTY UTILITY USERS' TAX CONTINUATION MEASURE. Shall an ordinance be adopted to validate and reduce Los Angeles County's existing utility users tax from 5 percent to 4.5 percent; to continue funding essential services, including sheriff's deputies, parks, libraries, street repairs, and other general fund services; update definitions to require equal treatment of taxpayers regardless of technology used; provide public review of expenditures and independent audits, and continue the low- income senior exemption ?" The official ballot also included an impartial analysis by County Counsel, arguments [ * * *6] in favor of and against Measure U, and a redlined version of the Utility User Tax Ordinance, which set forth the exact language of the proposed ordinance and the changes made to the previous ordinance. We shall discuss the ballot materials in greater detail in our discussion of the merits of appellants' challenge of the legality of Measure U. [ *114] 4. The Election 11 tD-(ao Prior to the election, the County provided the ballot materials discussed ante to the voters. Larry Pitts received these materials. On November 4, 2008, 62.92 percent of the voters approved Measure U. We shall refer to the UUT enacted pursuant to Measure U as the "2008 UUT." 5. Long Form Settlement Agreement On November 5, 2008, after lengthy negotiations, the Oronoz /Pitts plaintiffs executed [* *775] an 18- page long form settlement agreement.° This agreement incorporated most of the principal terms of the short form settlement agreement. Under the long form settlement agreement, the County was required to pay $10 million to a general fund and $65 million to a claims fund. The agreement also stated the County would not increase the UUT rate above 4.5 percent at any time prior to November 4, 2023, and that the County would hold an election in November [ * * *7] 2008 to "validate" the UUT at a rate of 4.5 percent. FOOTNOTES 3 Although the record does not clearly indicate whether the Oronoz /Pitts plaintiffs themselves executed the document, it is undisputed that their attorney, with their authority, did so. The Oronoz /Pitts plaintiffs are thus bound by the long form settlement agreement. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 [212 Cal. Rptr, 151, 696 P.2d 645] [client is bound by acts of attorney within the scope of his express or implied authority].) The long form settlement agreement further provided that plaintiffs Joe Oronoz and Larry Pitts and all class members released the County of all claims. We shall discuss this release in more detail post. The agreement also stated that the County denied any wrongdoing or liability in connection with the 1991 UUT. Additionally, the agreement provided that if the superior court did not approve the settlement, the agreement would be null and void. 6. Joint Motion for Preliminary Approval of Settlement and Motion for Preliminary Approval of Attorney Fees On November 6, 2008 —two days after the election —the Oronoz /Pitts plaintiffs and the County filed a joint motion for preliminary approval of the settlement and approval of forms and methods [ * * *8] of notifying the certified class of the settlement (preliminary settlement approval motion). In this motion, the parties argued that the settlement provided nonmonetary benefits, including requiring the County "to hold an election to validate the UUT pursuant to applicable law." The motion emphasized that the settlement was fair because [ *115] it secured for the taxpayers the "right to vote" for the UUT, i.e., the "right to decide whether the County can assess the UUT." In his declaration in support of the preliminary settlement approval motion, Lead Class Counsel Paul Heidenreich stated that the nonmonetary benefits of the settlement, including the November 4, 2008, election, "were important to the settlement obtained for the class." Heidenreich further stated: "Without the inclusion in the settlement package of the non - monetary benefits, the proposed settlement was not acceptable to class counsel." Concurrently with the preliminary settlement approval motion, the Oronoz /Pitts plaintiffs filed a motion for preliminary approval of attorney fees, costs and payments to the representative plaintiffs. In this motion, the Oronoz /Pittsplaintiffs sought an award of $50,000 to each class representative [ * * *9] and an award of attorney fees in the amount of $25 million to class counsel. They argued that their counsel deserved to be paid $25 million because they secured many benefits for the class, including the "Constitutional right to 12 (a13a vote." (Italics & boldface omitted.) Indeed, in listing the six primary benefits secured by the settlement, the Oronoz /Pitts plaintiffs placed the election held on November 4, 2008, at the top of the list. The motion stated: "The benefits are: [ ¶] First, the settlement vindicated the taxpayers['] California Constitution, Article XIII right to vote and participate in the [* *776] tax enactment process. Value of the Constitutional right: Priceless." (Fn. omitted.) On November 20, 2008, the trial court entered an order granting preliminary approval of the settlement and authorizing notice to be provided to the class. Pursuant to this order, over 390,000 taxpayers were given notice of the settlement and a right to object. Only one taxpayer filed an objection. On December 1, 2008, the trial court granted the Oronoz /Pitts plaintiffs' motion for preliminary approval of attorney fees and costs, and awarded plaintiffs' counsel $7,637,868.75 in attorney fees. The order further [ * * *10] provided that the attorney fees "shall be paid from the settlement funds if and when final approval of the class settlement is granted." 7. Final Judgment and Order in the Oronoz /Pitts Class Action Both the County and the Oronoz /Pitts plaintiffs filed briefs in support of the trial court's final approval of the settlement. In one of their briefs, the Oronoz /Pitts plaintiffs acknowledged that the sole objector to the settlement argued that Measure U was "confusing." [ *116] On April 28, 2009, the superior court entered a final order and judgment (judgment) in the Oronoz /Pitts class action. The judgment approved the settlement agreement, stating that it was "fair, adequate, and reasonable." It also dismissed the action, awarded class counsel $7,637,868.75 in attorney fees, and awarded each class representative, including Larry Pitts, $10,000. 8. The Owens Class Action —The Challenge to the 2008 UUT On August 11, 2009, Patrick Owens and Patricia Munoz filed a class action complaint against the County challenging the legality of Measure U and the 2008 UUT (the Owens class action). The complaint alleged that Measure U violated, inter alia, the class members' due process and free speech rights, as well [ * * *S1] as Proposition 218. 9. County's Motion for Summary Judgment in the Owens Class Action On November 12, 2010, the County filed a motion for summary judgment in the Owens class action on the grounds that plaintiffs failed to timely file and serve verified election contest statements as required by the Elections Code. The trial court entered an order denying the motion on February 15, 2011. The order stated that the court had read three cases cited by plaintiffs' counsel^ during oral argument and "finds that they recognize a post - election constitutional challenge to ballot materials that is independent of the Election[s] Code's election contest procedure." "As a result," the order further stated, "summary judgment must be denied because the complaint alleges constitutional claims related to the ballot materials and because County, in the moving papers, neither discusses the constitutional claims nor shows that they do not clear the constitutional bar." (Fns. omitted.) FOOTNOTES 4 These cases were Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766 [261 Cal. Rptr 108] ( Horwath), People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914 [131 Cal. Rptr. 2d 2741 (Kerr), and McKinney v. Superior Court (2004) 124 Cal.App.4th 951 [21 Cal. Rptr. 3d 773]. 13 ��-A � �,0 Subsequently, [ * * *12] the superior court set a briefing schedule for resolution of plaintiffs' Constitution - based challenge to Measure U. Pursuant to that schedule the parties filed briefs on plaintiffs' claims that [* *777] Measure U violated the voters' due process rights. 10. Pitts's Motion to Enforce the Settlement in the Oronoz /Pitts Class Action In the meantime, on March 22, 2011, Larry Pitts filed a motion to enforce the settlement in the Oronoz /Pitts class action. Pitts made the motion pursuant [ *117] to Code of Civil Procedure section 664.6 on the grounds that the November 4, 2008, election was not held "pursuant to applicable law," as required by the judgment and settlement agreement.5 Pitts raised many of the same constitutional arguments Owens and Munoz raised in the Owens class action. FOOTNOTESI s Code of Civil Procedure section 664.6 provides: "NlV,,If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance [ * * *13] in full of the terms of the settlement." ............... 11. The April 26, 2012, Hearing and Order On April 26, 2012, the superior court held a hearing on (1) plaintiffs' motion in the Owens class action to invalidate Measure U and (2) Pitts's motion in the Oronoz /Pitts class action to enforce the settlement. After the hearing, the court entered an order denying both motions. In the order, the court rejected plaintiffs' arguments on the merits. The court also found that Pitts waived his claims by signing the settlement agreement and was judicially estopped from challenging the election because he was taking a position contrary to the position he took in support of the settlement. 12. Judgment in the Owens Gass Action On May 10, 2012, the superior court entered a final judgment in the Owens class action in favor of the County. Owens and Munoz filed a timely notice of appeal of the judgment. On the same day, Pitts filed a timely notice of appeal of the order denying his motion to enforce the settlement. CONTENTIONS Appellants contend that the ballot materials for Measure U were so profoundly deceptive that they violated the voters' due process rights. They also argue that Measure U violated Proposition [ * * *14] 218 and the voters' free speech rights under the California Constitution. Additionally, Pitts contends that the November 4, 2008, election violated the requirements of the Elections Code. As a result of these alleged constitutional and statutory violations, Pitts argues, the election violates the judgment and the settlement in the Oronoz /Pitts class action because it was not conducted pursuant to applicable law. The County argues that Measure U did not violate the voters' due process or free speech rights, Proposition 218 or the Elections Code. Additionally, the [ *118] County contends Pitts is barred by the doctrines of waiver and judicial estoppel from challenging Measure U. 14 151-6 0 DISCUSSION 1. Pitts Is Barred by the Long Form Settlement Agreement from Challenging the 2008 UUT HN2fcA(2)*(2) "Waiver is the intentional relinquishment of a known right ...." ( [* *778] Branson v. Sharp Healthcare, Inc. (2011) 193 Cal.App.4th 1467, 1478 [123 Cal. Rptr. 3d 462].) The trial court found that Pitts waived his right to challenge the 2008 UUT adopted by Measure U by executing the long form settlement agreement one day after the election. We agree that Pitts is barred by the long form settlement agreement from challenging the 2008 UUT. NN-"TcA(3)T(3) A trial court's determination [ * * *15] of waiver is generally a question of fact. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 [8 Cal. Rptr. 3d 517, 82 P.3d 727].) We must affirm a waiver finding if it is supported by substantial evidence. (Ibid.) "'When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court's ruling. "' (Ibid.) Likewise, we independently interpret contracts, if the interpretation does not turn on the credibility of extrinsic evidence. (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 273 [152 Cal. Rptr. 3d 518].) NN47CA(4) *(4) "A settlement agreement is simply a contract." (Hernandez v. Board of Education (2004) 126 Cal.App.4th 1161, 1176 [25 Cal. Rptr. 3d 1] (Hernandez).) NN *cA(s)*(5) "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, § 1636.) When interpreting a written contract, we generally ascertain the intention of the parties from the writing alone, if possible. (Civ. Code, § 1639.) A contract, however, "may be explained by reference to the circumstances under which it was made, and the matter to which [ * * *16] it relates." (Civ. Code, § 1647.) Under the long form settlement agreement, Pitts "forever discharged" the County "from any and all Released Claims." "Released Claims" was defined by the agreement as including "any and all claims ... and causes of action of every nature and description whatsoever, ascertained or unascertained, suspected or unsuspected ... of the Plaintiffs and all Class Members that were or could have been brought against the County ... in the Complaint, from the beginning of the Class Period [(Feb. 16, 2004)] to November 4, 2008, arising from the facts alleged in the Complaint, including but not limited to charging, billing, or collection activity related to the UUT ... based on the [ *119] alleged failure to seek voter approval of the UUT and equal protection allegations raised in the Complaint." (Italics added.) The trial court found that when Pitts signed the long form settlement agreement on November 5, 2008, "the events about which Pitts now complains had all occurred." The court continued: "These events were public. They were well known to Pitts and his counsel. Indeed, Pitts and his fellow plaintiffs had caused this November 4, 2008 election to occur by means [ * * *17] of this very lawsuit. The County had sent the ballot booklet to the Pitts household.... This all happened before Pitts signed his November 5, 2008 settlement." There was substantial evidence to support these factual findings, and Pitts does not dispute them on appeal. In light of these undisputed facts, we conclude that prior to executing the long form settlement agreement, Pitts "could have brought" against the County the very same substantive claims he now asserts. Accordingly, Pitts is barred by the long form settlement agreement from pursuing his current challenge to Measure U and the 2008 UUT. Although Pitts attempts to draw a sharp distinction between the 1991 UUT and the 2008 UUT approved in the election, the long form settlement agreement stated [* *779] that the purpose of the election was to "validate" [ * * *18] the UUT. Moreover, Pitts's current substantive claims arise from the same basic grievance he asserted in his pleadings, namely that the UUT is unlawful because it was not approved by the voters. He contends that the 1991 UUT was unlawful because there was no election at all, while the 2008 UUT is unlawful because the election violated certain constitutional and statutory requirements. 15 tel3a When the long form settlement agreement is read in its entirety and placed into context, it is clear that the County agreed to make tens of millions of dollars in payments and to hold an election to validate the 1991 UUT, as modified, in order to resolve all claims regarding the alleged unlawful nature of the tax. It is also clear that Pitts and the other Oronoz /Pitts plaintiffs understood that the settlement resolved all of their potential claims against the County. On the first page of the long form settlement agreement, for example, it states that plaintiffs and their lawyers believe it is in the best interests of all class members "to resolve finally and completely the potential claims of the Plaintiffs and the Class Members against the County at this time by this Settlement." (Italics added.) In other [ * * *19] words, the County settled the case to buy peace. It is unimaginable that the County would have executed the long form settlement agreement on the day of the election, as it did, if it knew that Pitts could challenge the 2008 UUT based on facts that already existed at the time. [ *120] Pitts argues that because the long form settlement agreement requires the County to hold an election "pursuant to applicable law," he did not release the County from unlawful elections practices. This claim rings hollow because he knew, or should have known, all of the alleged deficiencies in the election at the time he signed the agreement. "(6) +(6) Pitts argues that he is not barred from challenging Measure U because he signed the long form settlement agreement on behalf of the 1991 UUT taxpayers, not on behalf of the 2008 UUT taxpayers. This argument proves too much. We agree that Pitts executed the agreement on behalf of the 1991 UUT taxpayers and that the 2008 UUT taxpayers are not parties to the contracts Pitts, however, seeks to enforce the long form settlement agreement pursuant to HN6 *Code of Civil Procedure section 664.6, which "grants the parties a [ * * *20] streamlined procedure to enforce an agreement they made between themselves." (Hernandez, supra, 126 Cal.App.4th at p. 1175.) Pitts thus cannot enforce the long form settlement agreement on behalf of the 2008 UUT taxpayers because they are not parties to the contract. FOOTNOTES 6 The "Settlement Class" was defined to mean all taxpayers who paid the UUT from February 16, 2004, to November 4, 2008. Pitts argues that because the short form settlement agreement required his attorneys to "cooperate with the County in seeking voter approval of the UUT," he was precluded from raising objections to Measure U prior to the election. We disagree. Nothing in the short form settlement agreement prohibited Pitts or his counsel from objecting to ballot materials on the grounds that they allegedly violated the constitutional and statutory rights of the voters. Finally, Pitts makes two almost incomprehensible arguments regarding the long form settlement agreement. Pitts contends that "the settlement had to have been enforceable at the time the rights [* *780] were waived by the party who allegedly waived those legal rights." He also argues at length that both the settlement agreement and the judgment were not enforceable at [ * * *21] the time of the election. Pitts seems to be arguing that because the trial court had not approved the long form settlement agreement and entered judgment as of the date of the election, he is not bound by the release provisions in the contract. He does not and cannot, however, cite any relevant authority to support his position. We reject all of Pitts's arguments regarding the long form settlement agreement. Pitts is barred by the agreement from challenging Measure U. [ *121] 2. Pitts Is Judicially Estopped from Challenging the 2008 UUT a. Standard of Review 16 ► -7 )3o MN f We review the findings of fact upon which the application of judicial estoppel is based under the substantial evidence test. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46 [119 Cal. Rptr. 3d 574] (Blix).) When the facts are undisputed, we independently review whether the elements of judicial estoppel have been satisfied. (Ibid.) Whether the doctrine should be applied even if the necessary elements are satisfied is a matter within the discretion of the trial court, which we review under the abuse of discretion standard. (Id. at pp. 46 -47.) b. Applicable Legal and Equitable Principles NN8°TcA(7) *(7) Judicial estoppel is an equitable doctrine designed to maintain [ * * *22] the integrity of the courts and to protect the parties from unfair strategies. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 [30 Cal. Rptr. 3d 755, 115 P.3d 41 J; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 [70 Cal. Rptr. 2d 96] (Jackson).) The doctrine prohibits a party from asserting a position in a legal proceeding that is contrary to a position he or she successfully asserted in the same or some earlier proceeding. (Blix, supra, 191 Cal.App.4th at p. 47; Jackson, at p. 181.) "This doctrine rests on the principle that litigation is not a war game unmoored from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial system limits the affirmative duties owed by an advocate to his adversary, but that does not mean it frees him to deceive courts, argue out of both sides of his mouth, fabricate facts and rules of law, or seek affirmatively to obscure the relevant issues and considerations behind a smokescreen of self- contradictions and opportunistic flip - flops." (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 558 [75 Cal. Rptr. 3d 19J.) NN9VCA(s)V(g) The elements of judicial estoppel are "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi - judicial [ * * *23] administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." (Jackson, supra, 60 Cal.App.4th at p. 183; accord, Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 -987 [12 Cal. Rptr. 3d 287, 88 P.3d 24] [quoting Jackson].) Even if the necessary elements of judicial estoppel are satisfied, the trial court still has discretion to not apply the doctrine. (Blix, supra, 191 Cal.App.4th at pp. 46 -47.) [* *781] [ *122] c. The Trial Court Did Not Abuse Its Discretion in Applying Judicial Estoppel in This Case Each of the elements of judicial estoppel is satisfied in this case. First, Pitts took two different positions regarding Measure U. Before the trial court approved the settlement and entered judgment, Pitts championed the benefits of Measure U to the voters. He argued that the settlement provided the nonmonetary benefit of vindicating the taxpayers' "right to vote." The benefit of holding the election, according to Pitts, was "[p]riceless." Pitts's lead counsel, too, boasted of the benefits of the election, stating under [ * * *24] oath that he would not have approved the settlement if the County had not agreed to the election. After the trial court approved the settlement and entered judgment, however, Pitts changed his tune. He argued, in essence, that Measure U was a sham because of the County's alleged misrepresentations to the voters and other wrongdoing. According to Pitts, the County's misconduct was so egregious that the voters' constitutional rights were violated and the election should be overturned. Pitts asserted both of his inconsistent positions in judicial proceedings, namely in the proceedings in the superior court in the Oronoz /Pitts class action. Further, he was successful in asserting his first position. Based in part on his arguments regarding the value of the election, the trial court approved the settlement, awarded Pitts $10,000, and awarded his attorneys about $7.6 million in fees. The two positions Pitts took were totally inconsistent. The election cannot at the same time be a priceless benefit to the voters and a sham that deprived them of due process. 17 18130 Finally, Pitts did not take his first position as a result of ignorance, fraud or mistake. Pitts knew all of the facts he now claims made [ * * *25] the election a sham when he claimed the election was a priceless benefit to the voters. Having determined that the elements of judicial estoppel have been satisfied, we must decide whether the trial court abused its discretion in applying the doctrine under the particular facts and circumstances of this case. This is not a difficult decision. Pitts's attempt to revive his action against the County is exactly the kind of litigation conduct judicial estoppel is meant to prevent. When it suited their interests, Pitts and class counsel championed the election that had already taken place. After securing millions of dollars in payments from the County, they attacked the election as an affront to the constitutional rights of the class they represent. We have no [ *123] trouble concluding that the trial court acted well within its discretion in applying the doctrine of judicial estoppel. 3. The Substantive Challenges to Measure U and the 2008 UUT by Pitts, Owens and Munoz Are Meritless Even if Pitts's substantive claims were not barred by the long form settlement agreement and the doctrine of judicial estoppel, we would reject them on the merits. Pitts, Owens and Munoz argue that the 2008 UUT is unlawful [ * * *26] because Measure U violated (a) the voters' due process rights, (b) the voters' free speech rights, and (c) Proposition 218. Additionally, Pitts contends that the November 4, 2008, election violated various provisions of the Elections Code. Each one of these substantive claims raises questions of law we review de novo. (Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287 [109 Cal. Rptr. 3d 620, 231 P.3d 350].) [* *782] a. The Ballot Materials Did Not Violate the Voters' Due Process Rights `Af9) ;9(9) Appellants argue that the ballot materials for Measure U were so misleading and deceptive they violated the voters' due process rights. "N1OVGenerally, a challenge to ballot materials must be made before an election. Indeed, a postelection challenge to ballot materials is not permitted by the Elections Code. (See Kerr, supra, 106 Cal.App.4th at pp. 932 -934; accord, Horwath, supra, 212 Cal.App.3d at p. 773 [there is no statutory basis for attacking the postelection effects of the ballot materials]; of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 193 -194 [105 Cal. Rptr. 2d 214, 19 P.3d 567] [citing Horwath with approval].) Although the California appellate courts have recognized the "possibility" that an impartial analysis of a county [ * * *27] measure or other ballot materials can be so misleading and inaccurate "that constitutional due process requires invalidation of the election" (Kerr, supra, 106 Cal.App.4th at pp. 919, 934), no California appellate court, to our knowledge, has invalidated an election on this basis., FOOTNOTES 7 Owens and Munoz's reliance on Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805 [258 Cal. Rptr. 161, 771 P.2d 1247] ( Calfarm) is unpersuasive. The Calfarm decision did not address the issue of whether ballot materials were so misleading that they violated the voters' due process rights. The courts have set a "very high" bar (Kerr, supra, 106 Cal.App.4th at p. 934) for litigants to successfully mount a postelection due process challenge to a ballot measure for good reason. The trial court in this case aptly [ *124] explained: "California law makes it hard to overturn elections. The reasons are fundamental. Voters, not judges, mainly run our democracy. It would threaten that core tenet if one person who did not like the election result could hire lawyers and with ease could invalidate an expression of popular will." 18 CA(IO)'Qto) In Horwath, the principal case upon which appellants rely, the court set forth the parameters of a due process analysis. The court stated: [ * * *Zg] HNI'w"Determination of how much process is due in a local, direct decisionmaking context —where the complained -of irregularities consist of omissions, inaccuracies or misleading statements in the ballot materials —will depend on whether the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. In conducting this inquiry courts should examine the extent of preelection publicity, canvassing and other informational activities, as well as the substance or content of such efforts. The ready availability of the text of the ordinance, or the official dissemination and content of other related materials, such as arguments for or against the measure, will also bear on whether the statutory noncompliance rendered the 19 �i3D election unfair. Finally, courts should take into account the materiality of the omission or other informational deficiency. Flaws striking at the very nature and purpose of the legislation are more serious than other, more ancillary matters." (Horwath, supra, 212 Cal.App.3d at pp. 777-778.) In Horwath, a measure authorizing a city rent control ordinance was placed on the ballot. The ordinance [ * * *29] set a new "base rent" in the city's rent control scheme, which "resulted in an 8 percent rent rollback." ( [* *783] Horwath, supra, 212 Cal.App.3d at p. 770.) The ballot materials, however, did not discuss the rent rollback. (Ibid.) Further, the voter information pamphlet did not contain the actual text of the measure, though voters could request a copy of it by mail. (Id. at pp. 770 -771.) The court concluded that the city attorney violated a statute requiring an impartial analysis of the measure. (Horwath, supra, 212 Cal.App.3d at p. 778.) It also concluded, however, that the omission of a definition of the lawful base rent on the ballot materials fell "somewhere in between a minimal defect and one going to the core character and purpose of the proposed legislation." (Id. at p. 779.) In light of general disclosures in the ballot materials regarding nature of the ordinance, the preelection publicity on the rent rollback, and the availability of the full text of the proposed ordinance, the court held that the city's misconduct did not violate the voters' due process rights. (Ibid.) Turning to the present case, the alleged deficiencies in the ballot materials relating to Measure U do not even rise [ * * *30] to the level of a "minimal defect" [ *125] contemplated by Horwath. Appellants argue that the title "Tax Continuation Measure" on the ballot was a misleading description of Measure U because the County created the false impression that the 1991 UUT was lawfully enacted. We disagree. Nowhere on the ballot does it state that the 1991 UUT was lawful. Further, it is objectively correct that a UUT had been imposed without interruption on the taxpayers since 1991, and that passage of Measure U would continue that tax, albeit in modified form. Next, appellants contend that the County misled the voters by falsely stating in the ballot materials "that a 'yes' vote would result in a tax reduction." We reject this argument. The summary of the measure on the ballot and the impartial analysis accurately stated that the tax rate would decrease. The opposition argument to Measure U stated that while the tax rate would decrease, "so many more services would be taxed, the overall amount people will pay will go up." In a preelection editorial, the Los Angeles Times noted that the main argument against Measure U was that it would "result in a tax increase for more than 1 million residents of unincorporated areas." [ * * *31] The voters thus were not misled by the ballot materials regarding a "tax reduction." Appellants contend that the summary and impartial analysis of Measure U falsely stated that the UUT would fund essential services, including those related to sheriff's deputies, parks, libraries, and street repairs. Nothing in the record, however, indicates this statement is inaccurate. Appellants also argue that the County failed to inform the voters about a number of facts and circumstances relating to Measure U, including (1) the 1991 UUT had never been approved by the voters 20 a;)I/.3 and was unlawful, (2) "new taxes" would be enacted by Measure U, (3) a "no" vote would "eliminate" the UUT and prevent the imposition of a $65- million - per -year tax, and (4) a "no" vote was a vote for $25 million in refunds. The County, however, was not required to state any of these things in the summary of the measure or in the impartial analysis. The County, through its counsel, was required to provide an impartial title and summary of the purpose of the measure (Elec. Code, § 9105, subd. (a)), as well as a separate impartial analysis showing the effect of the measure (Elec. Code, § 9160, subd. (b)). It was not required to [ * * *32] inform the voters of all of the arguments against [* *784] the measure. That task fell to the opponents of the measure, who informed the voters of many of the arguments appellants claim the County concealed. For example, the argument against Measure U in the ballot materials stated that the County was proposing a "new tax." "(11' 7(11) Further, both the County's summary of the measure and impartial analysis could not exceed 500 words. (Elec. Code, §§ 9105, subd. (a), [ *126] 9160, subd. (b).) This word limit precluded the County from discussing every issue relating to Measure U in the ballot materials. For voters interested in the details of the proposed tax, the County included in the ballot materials a redlined version of the Utility User Tax Ordinance, showing the exact language of the proposed and then existing ordinances. "NI2; Where, as here, the voters are provided the whole text of a proposed law or ordinance, we ordinarily assume the voters voted intelligently on the matter. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243 -244 [149 Cal. Rptr. 239, 583 P.2d 1281].) Additionally, the County was not required to inform the voters of the details of the settlement prior to the election.e It was possible [ * * *33] at the time of the election that the court would reject the settlement. A disclosure of the many terms of the contingent settlement might have made the measure unnecessarily complicated and confusing. 21 FOOTNOTES a Contrary to appellants' contention, the public was not completely in the dark about the settlement. In an editorial dated July 18, 2008, the Los Angeles Times noted that the Board approved a settlement in the Oronoz /Pitts class action. cn(12)*(12) In their many attacks on Measure U, appellants lose sight of the very high bar they must clear to prevail on their respective due process claims. HNI3! Appellants cannot prevail by merely showing that the County's impartial analysis (or summary of the measure) did not educate the electorate "as to all the legal nuances of the measure." (Kerr, supra, 106 Cal.App.4th at p. 934.) They must instead demonstrate that the ballot materials had "profoundly misled the electorate." (Ibid.) Appellants do not come close to meeting this standard. We therefore reject their due process claims. b. Measure U Did Not Violate the Voters' Rights to Free Speech and Free Elections Appellants argue that the ballot materials for Measure U violated their free speech rights under article I, section 2, subdivision (a) of the California Constitution' [ * * *34] and the First Amendment to the United States Constitution.- They fail to cite any evidence, however, that the ballot materials, or any act by the County, in any way prohibited appellants from speaking or writing about any topic, including Measure U. Appellants' contention that their free speech rights were violated is frivolous. 22 FOOTNOTES 9 This provision states: NN14f "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).) io The First Amendment states: HN15W,,Congress shall make no law ... abridging the freedom of speech ... " (U.S. Const., 1st Amend.) In support of their free speech arguments, appellants primarily rely on Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal. Rptr. 697, 551 P.2d 1] [ *127] (Stanson) and cases that cite or interpret that case. The plaintiffs in Stansonsued a public official for [* *785] allegedly unlawfully spending public funds to promote the passage of a bond issue. (Id. at p. 209.) The California Supreme Court recognized that "the use of the public treasury to mount an election campaign" could violate the voters' right to a "'free election' " [ * * *35] under former article II, section 2 of the California Constitution." (Stanson, at p. 218.) The court then stated it did not need to resolve this "serious constitutional question" because the defendant did not have the statutory authority to spend public funds. (Id. at pp. 219 -220.) Contrary to appellants' contention, however, the Stanson court did not discuss whether the voters' free speech rights were violated. FOOTNOTES ii This provision, renumbered as article II, section 3 of the California Constitution (East Bay Municipal Utility Dist. v. Appellate Department (1979) 23 Cal.3d 839, 844, fn. 5 [153 Cal. Rptr. 597, 591 P.2d 1249]), states: "The Legislature shall define residence and provide for registration and free elections." (Cal. Const., art. II, § 3; id., former art. II, § 2.) Our conclusion that appellants incorrectly characterized a Stanson claim as a free speech claim does not end our discussion of this matter. We shall also discuss the merits of appellants' Stanson claim against the County. C.4(13)7( 13) In Stanson, the California Supreme Court set forth NN76fa distinction between a public agency's improper "campaign" expenditures and proper "informational" activities. (Stanson, supra, 17 Cal.3d at p. 221.) The court stated: "[T]he use of public [ * * *36] funds to purchase such items as bumper stickers, posters, advertising 'floats,' or television and radio 'spots' unquestionably constitutes improper campaign activity [citations], as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure." (Ibid.) "O n th e other hand," the court further stated, "it is generally accepted that a public agency pursues a proper `informational' role when it 23 simply gives a fair presentation of the facts' in response to a citizen's request for information [citations] or, when requested by a public or private organization, it authorizes an agency employee to present the department's view of a ballot proposal at a meeting of such organization." (Ibid.) The court also recognized that in some cases "the line between unauthorized campaign expenditures and authorized informational activities is not so clear." (Stanson, supra, 17 Cal.3d at p. 222.) "In such cases," the court stated, "the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication ...." (Ibid.) CA(14) *(14) In Vargas v. City of Salinas (2009) 46 Cal.4th 1 [92 Cal. Rptr. 3d 286, 205 P.3d 207] [ * * *37] (Vargas), the California Supreme Court affirmed the distinction [ *128] stated in Stanson regarding campaign and informational activities. (Id. at pp. 33 -34.) The court also clarified that "... Stanson does "117Tnot preclude a governmental entity from publicly expressing an opinion with regard to 24 the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on themeasure. (Vargas, at p. 36.) "[U]pon reflection," the court further stated, "it is apparent that in many circumstances a public entity inevitably will 'take sides' on a ballot measure and not be 'neutral' with respect to its adoption." (Ibid.) The court also stated that the "potential danger to the democratic electoral process" discussed in Stanson "is not presented [**786] when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have. Rather, the 25 a �,/ ,3 o threat to the fairness of the electoral process to which Stanson referred arises when a public entity or public official is able to devote funds from the public treasury, or the publicly financed services of public employees, to campaign [ * * * 38 ] activities fa v oring or opposing such a measure." (Vargas, supra, 46 Ca l Ath at pp. 36-37m) The measure at issue in Vargas was a proposal to reduce the UUT of the defendant city. The city opposed the measure and produced various documents and reports, including a newsletter to city residents, indicating the services that would be cut if the measure passed. (Vargas, supra, 46 Cal.4th at pp. 11 -12, 20.) The plaintiffs claimed that the city improperly distributed "'campaign materials.' " (Id. at p. 13.) The court, however, held that the city merely engaged in informational activity rather than campaign activity. (Id. at pp. 37 -38.) Here, appellants do not allege any facts indicating that the County spent public funds to engage in campaign activities in support of Measure U. For example, there is no allegation that the County purchased bumper stickers, posters, or television or radio advertisements to promote the measure. Further, the summary and impartial analysis of Measure U do not endorse the measure and, as we explained ante, are reasonably fair and accurate. Appellants thus cannot maintain a claim against the County under Stanson and Vargas. c. Measure U Did Not Violate Proposition 218 ca(15)*(15) Adopted [ * * *39] by California voters in November 1996, Proposition 218 added articles XIII C and XIII D to the California Constitution. HN18 +Proposition 218 generally prohibits local governments from imposing taxes without voter approval. (Schmeer v. County of Los Angeles (2013) 213 Cal.App.4th 1310, 1319 [153 Cal. Rptr. 3d 3521.) 37 z7130 Article XIII C, section 2, subdivision (c) of the California Constitution (subdivision (c)) provides: ""`i9* "Any general tax imposed, extended, or increased, [ *129] without voter approval, by any local government on or after January 1, 1995, and prior to the effective date of this article [(Nov. 6, 1996)], shall continue to be imposed only if approved by a majority vote of the voters voting in an election on the issue of the imposition, which election shall be held within two years of the effective date of this article [(Nov. 6, 1998)] and in compliance with subdivision (b)." We shall refer to the period between January 1, 1995, and November 6, 1996, as the "window period." According to the Howard Jarvis Taxpayers Association, the sponsor of Proposition 218, "the window period provision was intended to discourage local taxing authorities from rushing to impose taxes after the ballot measure became public knowledge [ * * *40] but before its enactment." (McBrearty v. City of Brawley (1997) 59 Cal.App.4th 1441, 1450 [69 Cal. Rptr. 2d 8621 (McBrearty), disapproved on other grounds in Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 816 [107 Cal. Rptr. 2d 369, 23 P.3d 601] (Howard Jarvis).) We agree with this assessment of the purpose of the window period. (See McBrearty, at p. 1450 [adopting assessment of Howard Jarvis Taxpayers Association].) [* *787] Owens and Munoz argue that the 1991 UUT is "subject to the provisions of subdivision (c) because it was 'imposed' on the Taxpayers [(i.e., the class of taxpayers they purport to represent)] between January 1, 1995, and November 6, 1996." They further contend that the 1991 UUT violates Proposition 218 because it was not approved by a majority of the voters prior to November 6, 1998. Owens and Munoz, however, have no standing to challenge the 1991 UUT. Their complaint alleges they represent all persons "living in and /or operating businesses in the unincorporated areas of Los Angeles County from November 4, 2008 to the present" who were charged the UUT "approved pursuant to the illegal November 4, 2008 election." Other parties, including Pitts, who represented the class of taxpayers who paid the 1991 UUT, [ * * *41] settled all claims against the County arising from the alleged illegal nature of the tax. Accordingly, whether the 1991 UUT violated Proposition 218 is irrelevant to the class action lawsuit brought by Owens and Munoz.12 FOOTNOTES 12 Owens and Munoz argue that the 2008 UUT also violates Propositions 218 and 62 because it purports to continue an invalid tax. The only authority they cite to support this argument is Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open Space Authority (2008) 44 Cal.4th 431 [79 Cal. Rptr. 3d 312, 187 P.3d 37] (Silicon Valley), where the court stated "voter consent cannot convert an unconstitutional legislative assessment into a constitutional one." (Id. at p. 449.) This statement, however, is taken out of context. The court held that under Proposition 218 a local agency cannot' impose a real property assessment unless (1) the tax is approved by a weighted majority of voters and (2) the agency clears certain "substantive hurdles" set forth in article XIII D, section 4 of the California Constitution. (Silicon Valley, at p. 449.) The court thus held that voter approval was insufficient to validate the assessment because the agency did not comply with additional, independent constitutional requirements. [ * * *42] In the present case, by contrast, there were no substantive hurdles apart from voter approval that the County needed to clear in order to enact the 2008 UUT. Silicon Valley therefore is distinguishable. 27 28136 [ *130] In any case, the 1991 UUT did not violate Proposition 218. Proposition 218 requires local public entities "to obtain voter approval of general taxes first imposed or increased after January 1, 1995." (Burbank- Glendale- Pasadena Airport Authority v. City of Burbank (1998) 64 Cal.App.4th 1217, 1226 [76 Cal. Rptr. 2d 297], italics added; accord, Citizens Assn. of Sunset Beach v. Orange County Local Agency Formation Com. (2012) 209 Cal.App.4th 1182, 1194 [147 Cal. Rptr. 3d 696] [ "The word impose' usually refers to the first enactment of a tax .... "].) As stated ante, the purpose of the window period was to prevent taxing authorities from rushing to impose taxes after the ballot measure became public knowledge. Because the 1991 UUT was first imposed long before the window period, it was not subject to Proposition 218. (See Batt v. City and County of San Francisco (2010) 184 Cal.App.4th 163, 176 [109 Cal. Rptr. 3d 129] [tax already in place prior to adoption of Prop. 218 was not subject to Prop. 218].) Owens and Munoz's reliance on Howard Jarvis is misplaced. [ * * *43] There, the plaintiffs sued a city for allegedly imposing and collecting a UUT on its residents without the voter approval mandated by Proposition 62 (Gov. Code, §§ 53720 - 53730). (Howard Jarvis, supra, 25 Cal.4th at p. 812.) The issue was when the statute of limitations began to run. (Ibid.) The court held that "if, as alleged, the tax is illegal, its continued imposition and collection is an ongoing violation, upon which the limitations period begins anew with each collection." (Ibid.) The court did not, however, [* *788] discuss the meaning of the term "impose" for purposes of subdivision (c). Howard Jarvis thus does not hold that a tax first imposed prior to January 1, 1995, is subject to Proposition 218. Pitts argues that the 2008 UUT violated Proposition 218 because the County did not state in the ballot materials that "Measure U would (1) enact, for the first time, a voter approved UUT and (2) would enact brand new taxes." Pitts confuses election due process requirements with the requirements of Proposition 218. Proposition 218 requires voter approval of new local government taxes. The County fully complied with Proposition 218 by holding an election on Measure U. caf16/7(16) In his reply brief, Pitts [ * * *44] argues that the 2008 UUT is a special tax and not a general tax. This is significant because ""121 *a general tax can be imposed by a majority vote, while a special tax needs a two - thirds vote for approval. (Cal. Const., art. XIII C, § 2, subds. (c) & (d).) Pitts claims that the 2008 UUT is void because it was not approved by a two - thirds vote. He forfeited this [ *131] argument, however, because he did not make it in his motion to enforce the settlement in the trial court or in his opening brief in this court. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [118 Cal. Rptr. 3d 531] [appellant waived issue he failed to raise in the trial court].) Pitts, furthermore, does not have standing to pursue this argument. The judgment and the settlement agreement required the County to hold an election pursuant to applicable law, but stated nothing about interpreting the election results. Whether the 2008 UUT is a general or special tax is an issue relevant to interpreting the election results, not whether the election was held pursuant to applicable law. Pitts therefore cannot challenge the County's interpretation of the election results as part of his motion to enforce the settlement. ' "r ") *(17) In any case, the 2008 UUT is not [ * * *45] a special tax. 1N21tA special tax "means any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund." (Cal. Const., art. XIII C, § 1, subd. (d).) "The essence of a special taxis that its proceeds are earmarked or dedicated in some manner to a specific project or projects ....' " (Bay Area Cellular Telephone Co. v. City of Union City (2008) 162 Cal.App.4th 686, 696 [75 Cal. Rptr. 3d 839].) Here, the proceeds of the 2008 UUT are deposited in the County's general fund, and are not earmarked for any specific project.13 The 2008 UUT is therefore a general tax. FOOTNOTES 13 Contrary to Pitts's argument, the ballot summary of Measure U did not indicate otherwise. The summary stated that the tax would fund "essential services, including sheriff's deputies, parks, libraries, 28 street repairs, and other general fund services." (Italics added). d. Measure U Did Not Violate the Elections Code c "r'B�t(18) Pitts argues that the County violated "NZZVElections Code section 9105, subdivision (a), which requires county counsel to provide an "impartial statement of the purpose" of a proposed measure in a summary placed on the ballot. He also contends the County violated Elections Code section 9160, subdivision (b), [ * * *46] which requires county counsel to provide an "impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure." In support of his position, Pitts essentially rehashes the same contentions he made in his due process claim. He contends, for example, that the measure title was misleading. He also contends that ballot materials were deceptive and unfair [* *789] because they did not disclose the UUT was a "new tax" or that a "no" vote would have resulted in $25 million in tax refunds. For the reasons we explained ante, we hold that the ballot materials were reasonably fair and accurate. We therefore reject Pitts's claim that Measure U violated the Elections Code. [ *132] DISPOSITION The judgment dated May 12, 2012, in the Owens class action is affirmed. The order dated April 26, 2012, in the Oronoz /Pitts class action is affirmed. Respondent County of Los Angeles is awarded costs on appeal in both appeals. Klein, P. I., and Croskey, I., concurred. JOHN A. SHEPARDSON, ESQ. 59 N. Santa Cruz Avenue, Suite Q Los Gatos, CA 95030 T: (408) 395 -3701 F: (408) 395 -0112 CONFIDENTIALITY NOTICE: the information contained in this e-mail, including any attachment(s), is confidential information that may be privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or if you received this message in error, then any direct or indirect disclosure, distribution or copying of this message is strictly prohibited. If you have received this message in error, please notify Marti H. Castillo at the Law Office of JOHN A. SHEPARDSON immediately by calling (408) 395 -3701 and by sending a return e-mail; delete this message; and destroy all copies, including attachments. Thank you. IRS CIRCULAR 230 DISCLOSURE To ensure compliance with new requirements of the Internal Revenue Service, we inform you that, to the extent any advice relating to a Federal tax issue is contained in this communication, including in any attachments, it was not written or intended to be used, and cannot be used, for the purpose of (a) avoiding any tax related penalties that may be imposed on you or any other person under the Internal Revenue Code, or (b) promoting, marketing or recommending to another person any transaction or matter addressed in this communication. 29