2021-07-12 PCF Petition For Writ of Mandate - Franchise Agreements

1 Malinda Dickenson (State Bar No.
222564)
THE PROTECT OUR COMMUNITIES FOUNDATION
2 4452 Park Blvd., Suite 309
San Diego, California 92116
3 Telephone: (619) 693-4788
Email: [email protected]
4 Attorney for Petitioner The Protect Our Communities Foundation
5
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN DIEGO
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11
THE PROTECT OUR COMMUNITIES CASE NO. ______________
12 FOUNDATION, a California nonprofit
corporation,
13 VERIFIED PETITION FOR WRIT OF
Petitioner, MANDATE UNDER THE CALIFORNIA
14 ENVIRONMENTAL QUALITY ACT,
v. THE SAN DIEGO CITY CHARTER,
15 THE CALIFORNIA CONSTITUTION,
CITY OF SAN DIEGO, a municipal AND OTHER LAWS
16 corporation; and DOES 1-100,
(CALIFORNIA ENVIRONMENTAL
17 Respondent(s). QUALITY ACT)
18 SAN DIEGO GAS & ELECTRIC COMPANY,
a California corporation; and ROES 101-200,
19
Real Parties In Interest(s).
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VERIFIED PETITION FOR WRIT OF MANDATE

1 Petitioner THE PROTECT OUR COMMUNITIES FOUNDATION (“Petitioner”) alleges
2 as follows in this Petition for Writ of Mandate pursuant to the California Environmental Quality
3 Act (CEQA), the San Diego City Charter, the California Constitution, and other laws:
4 Introduction
5 1. This case challenges certain actions by Respondent CITY OF SAN DIEGO
6 (“City”) related to its approval of ordinances awarding gas and electric franchises to Real Party
7 in Interest SAN DIEGO GAS & ELECTRIC COMPANY (“SDG&E”). The City approved
8 ordinances awarding gas and electric franchises to SDG&E and an associated “Energy
9 Cooperation Agreement” without properly analyzing, disclosing, avoiding, or minimizing the
10 environmental impacts likely to occur from such approvals, without adhering to the San Diego
11 City Charter, and without a vote of the people. Accordingly, this action alleges that the City’s
12 approvals violate CEQA, the San Diego City Charter (Charter), the California Constitution, and
13 other laws.
14 Parties
15 2. Petitioner is a nonprofit public benefit corporation formed and existing under
16 California law with headquarters in San Diego. It is organized exclusively for charitable and
17 public purposes. Petitioner represents the interests of San Diego and Southern California
18 residential ratepayers in proceedings before the California Public Utilities Commission and other
19 California agencies and in the courts. Petitioner advocates against unreasonably costly and
20 unnecessary fossil-fueled utility projects, in support of just and reasonable utility rates, and in
21 support of fair, reasonable, and responsible energy practices, polices, rules, and laws. Petitioner
22 seeks to obtain enforcement of the public duties that are the subject of this lawsuit.
23 3. Respondent City of San Diego is a Charter City with a duty not to violate the terms
24 of the San Diego City Charter. The City is a public agency under section 21063 of the Public
25 Resources Code. The City is authorized and required by law to hold public hearings, to
26 determine the adequacy of and certify environmental documents prepared pursuant to CEQA,
27 and to take other actions in connection with the approval of projects within its jurisdiction.
28
1
1 4. Real Party in Interest San Diego Gas & Electric Company (SDG&E) is a
2 corporation formed and existing under California law, an investor-owned utility, a “public
3 utility” under Public Utilities Code section 216, and the recipient of the gas and electric
4 franchises granted by the ordinances challenged herein.
5 5. The true names and capacities of Respondents identified as DOES 1 through 100
6 and Real Parties in Interest identified as ROES 101 through 200 are unknown to Petitioner,
7 which will seek the Court’s permission to amend this pleading in order to allege the true names
8 and capacities as soon as they are ascertained. Petitioner is informed and believes, and on that
9 basis alleges, that each of the fictitiously-named Respondents 1 through 100 has jurisdiction by
10 law over one or more aspects of the project that is the subject of this proceeding and that each of
11 the fictitiously-named Real Parties in Interest 101 through 200 has some cognizable interest in
12 the allegations or the project challenged herein.
13 Background Information
14 6. On December 17, 1970, six of nine City Councilmembers voted to adopt
15 Ordinance No. 10465 and Ordinance No. 10466 (the 1970 Ordinances), which granted gas and
16 electric franchises to SDG&E for a fifty-year term, terminating on January 17, 2021.
17 7. At the end of 2020, the newly elected Mayor of the City of San Diego cancelled
18 the bidding process of his predecessor; and released new invitations to bid (ITBs) on the gas and
19 electric franchises on March 19, 2021. The ITBs attached as exhibits two versions of the gas and
20 electric franchises: one version of each franchise for “bidders who possess a franchise to provide
21 electric service for lighting acquired under Section 19 of Article XI of the California Constitution
22 as the provision existed prior to its amendment on October 10, 1911,” and a more onerous
23 version for “bidders who do not possess such a ‘constitutional franchise’ for lighting.”
24 8. SDG&E, claiming to possess a “constitutional franchise” well over a century after
25 such franchises ceased to exist, submitted the only purported bids for each franchise.
26 9. Petitioner is informed and believes and thereon alleges the Mayor accepted
27 SDG&E’s bids, and began negotiating with SDG&E terms for the ordinances that deviated from
28 the terms of the ordinances that had been attached as exhibits to the ITBs.
2
1 10. A memorandum from the City Attorney’s Office detailed the myriad changes
2 made to the proposed ordinances after the Mayor accepted SDG&E’s bid. The memorandum
3 reveals the following deviations, among others:
4 (a) Non-compliance with Climate Action Plan: The word “fullest” was deleted from
5 the term in the ITB requiring the franchisee to commit to the City’s Climate Action Plan by
6 reducing “greenhouse gas emissions to the fullest extent practical;” and “[w]ords were deleted to
7 remove required compliance with updates to the City’s 2015 Climate Action Plan;”
8 (b) Surrender of Policy Making and Police Powers: Terms were added that
9 essentially contract away the City’s authority to set climate policy to SDG&E and the CPUC;
10 language was added limiting the City’s authority over its streets and subordinating the City’s
11 decision-making authority to SDG&E and to the CPUC; definitions were added for
12 “Administrative MOU” and “Undergrounding MOU,” agreements to be negotiated after the
13 adoption of the ordinances; the requirement that the terms of the Administrative MOU comply
14 with the express terms of a memorandum of understanding attached as Attachment 2 to the
15 ordinances attached as exhibits to the ITBs was deleted and replaced with language limiting the
16 terms of the Administrative MOU to include only those “additional terms agreed upon” by the
17 City and SDG&E; and the City surrendered “its right to unilaterally make decisions that impact
18 its ability to manage its own undergrounding projects” and effectively granted veto power to
19 SDG&E regarding the City’s undergrounding decision-making;
20 (c) Increased Costs to the City and its Constituents: The requirement that the
21 franchisee use best efforts to “minimize service costs to City residents and businesses” was
22 deleted; the term prohibiting the City from refunding bid payments for the electric franchise was
23 replaced with a term requiring the City to refund bid payments if the electric franchise is not in
24 effect “for any reason” for twenty years, making it more difficult for the City to exercise its right
25 to municipalize or otherwise terminate the franchises; and terms were added limiting the City’s
26 right to make SDG&E pay for electric and gas infrastructure relocation costs if the City requires
27 use of its rights-of-way where existing SDG&E infrastructure is located (e.g., to place piping
28 associated with the City’s Pure Water program);

3
1 (d) Decreased Accountability: Language was added limiting the City’s right to
2 terminate the franchise and to avoid a second ten-year term; accountability measures were
3 weakened and shifted from the draft electric franchise ordinance to a yet-to-be-negotiated
4 Undergrounding MOU; and the role of the Compliance Review Committee was weakened by
5 adding a term that provides SDG&E the right to deliver a contemporaneous response to the City
6 Council if the Compliance Review Committee recommends termination of the Franchise
7 Agreement;
8 (e) Decreased Transparency: Terms were changed so that City no longer determines
9 what records it needs to evaluate whether the franchisee is complying with franchise agreement,
10 and instead SDG&E controls the decision-making about what records to produce to the public;
11 and terms were changed to limit access by the Compliance Review Committee’s auditor to
12 records “relevant to confirming [SDG&E’s] compliance with the Franchise,” thus increasing the
13 risks of disputes about SDG&E’s production of records.
14 11. Item 330 on the agenda for the May 25, 2021 City Council meeting was described
15 as “Actions Related to the Award of Gas and Electric Franchises and Cooperation Agreement
16 with San Diego Gas and Electric,” and listed four “subitems.”
17 (a) Subitem-A was described as “Resolution determining that actions are exempt from
18 the California Environmental Quality Act pursuant to Section 15301(b) of the CEQA Guidelines,
19 and are consistent with the Final Program Environmental Impact Report (PEIR) prepared for the
20 Climate Action Plan (Project No. 416603 / SCH No. 2015021053).”

21 (b) Subitem-B was described as “Introduction of an Ordinance awarding a Gas
22 Franchise to San Diego Gas & Electric to construct, maintain, and use pipes and appurtenances
23 for transmitting and distributing gas in the streets of the City of San Diego. 6 votes required
24 pursuant to Charter Section 103.”
25 (c) Subitem-C was described as “Introduction of an Ordinance awarding an Electric
26 Franchise to San Diego Gas & Electric to construct, maintain, and use poles, wires, conduits, and
27 appurtenances for transmitting and distributing electricity in the streets of the City of San Diego.
28 6 votes required pursuant to Charter Section 103.”

4
1 (d) Subitem-D was described as “Resolution authorizing the Mayor, or his designee,
2 to enter into an Energy Cooperation Agreement with San Diego Gas & Electric.”
3 12. The terms of the ordinances presented as Subitem-B and Subitem-C refer to the
4 following charges as “consideration” for the franchises: (1) a $70 million bid amount for the
5 electric franchise paid over time and a $10 million bid amount for the gas franchise paid over
6 time; (2) a sum equal to three percent of SDG&E’s gross receipts for each franchise (“3%
7 charge”); (3) an “Electric Franchise Fee Surcharge,” which includes a “Municipal
8 Undergrounding Surcharge,” for the electric franchise; (4) a “Gas Franchise Fee Surcharge” for
9 the gas franchise; and (5) payments over time totaling $20 million “to the City’s General Fund
10 for the City to use to further the City’s Climate Action and Climate Equity goals.”
11 13. The 3% charge, the Electric Franchise Fee Surcharge, the Municipal
12 Undergrounding Surcharge, and the Gas Franchise Fee Surcharge are charges that the
13 ordinances purport to impose upon taxpayers.
14 14. The terms of the ordinances presented as Subitem-B and Subitem-C also require
15 the City and SDG&E to enter into two “side deal” agreements: an “Energy Cooperation
16 Agreement” and an “Administrative MOU.” The ordinance awarding the electric franchise to
17 SDG&E calls for a third “side deal” agreement referred to as an “Undergrounding MOU.”
18 15. Of the three “side deal” agreements contemplated by the ordinances awarding the
19 gas and electric franchises, only the Energy Cooperation Agreement was drafted and presented
20 to the City Council for review and approval. However, the Energy Cooperation Agreement
21 included with the backup materials for Subitem-D of Item 330 itself calls for a “side deal”
22 agreement, which it refers to as “Implementation Plan.” The “Implementation Plan” referred to
23 in the Energy Cooperation Agreement has yet to be negotiated.
24 16. Although Charter section 275(c) mandates that these kinds of ordinances “be
25 passed by the Council only after twelve calendar days have elapsed from the day of their
26 introduction” and requires a full reading prior to passage, Petitioners are informed and believe
27 and thereon allege that on May 25, 2021 (the same day the ordinances were introduced), six
28 Councilmembers voted to approve Item 330 and all of its subitems with certain amendments.
5
1 17. Item 57 on the agenda for the June 8, 2021 City Council meeting described as
2 “Actions Related to the Award of Gas and Electric Franchises and Cooperation Agreement with
3 San Diego Gas and Electric” and proposed the following actions on the consent agenda:
4 Adopt the following Ordinance which was introduced on 5/25/2021, Item 330,
Subitem B; Adopt the following Ordinance which was introduced with
5 amendments by Council action on 5/25/2021, Item 330, Subitem C. (Council
voted 6-3, Councilmember LaCava, Councilmember Montgomery Steppe and
6 Councilmember Moreno-nay):
7 Subitem-A: (O-2021-128 Cor. Copy)
Ordinance awarding a Gas Franchise to San Diego Gas & Electric to construct,
8 maintain, and use pipes and appurtenances for transmitting and distributing gas
in the streets of the City of San Diego.
9 6 votes required pursuant to Charter Section 103.
10 Subitem- B: (O-2021-129 Cor. Copy)
Ordinance awarding an Electric Franchise to San Diego Gas & Electric to
11 construct, maintain, and use poles, wires, conduits, and appurtenances for
transmitting and distributing electricity in the streets of the City of San Diego.
12 6 votes required pursuant to Charter Section 103.
13 18. Although Petitioners are informed and believe and thereon allege that the City
14 Council made certain amendments to the documents that had been provided to the public with
15 the backup materials for the May 25, 2021 meeting, the backup materials presented to the public
16 for the June 8, 2021 meeting failed to reflect any of the changes that had been made at the May
17 25, 2021 meeting.
18 19. The day before the June 8, 2021 meeting, the City Attorney crossed out the words
19 “with amendments by Council action” on the agenda for the June 8, 2021 meeting as follows:
20 Adopt the following Ordinance which was introduced on 5/25/2021, Item 330,
Subitem B; Adopt the following Ordinance which was introduced with
21 amendments by Council action on 5/25/2021, Item 330, Subitem C. (Council
voted 6-3, Councilmember LaCava, Councilmember Montgomery Steppe and
22 Councilmember Moreno-nay)
23 20. Neither the CEQA determination (Subitem-A from Item 330 on May 25, 2021) nor
24 the Energy Cooperation Agreement (Subitem-D from Item 330 on May 25, 2021) appeared on
25 the agenda for the June 8, 2021 meeting at any time. Those items were formalized as Resolution
26 No. R-313554 and Resolution No. R-313555, respectively. Though both resolutions are dated
27 June 7, 2021, neither resolution was available on the City’s website in its final form until several
28 days after the June 8, 2021 meeting.

6
1 21. Resolution No. R-313555 purports to adopt “an energy cooperation agreement
2 with San Diego Gas & Electric Company in connection with the granting of franchises for the
3 use of City streets for provision of gas and electric services in the City of San Diego.” The
4 Energy Cooperation Agreement itself is not attached to Resolution No. R-313555.
5 22. Resolution No. R-313554 erroneously determines “that the grant of franchises to
6 use the streets of the City for facilities and operations used for transmitting and distributing gas
7 and electricity and entering into an energy cooperation agreement are not subject to the
8 California Environmental Quality Act (CEQA), are exempt from CEQA pursuant to CEQA
9 Guidelines Section 15301(b), and are consistent with the Final Program Environmental Impact
10 Report (PEIR prepared for the Climate Action Plan (Project No. 416603/SCH No. 201502053),
11 which was certified by San Diego City Council Resolution No. R.310176 on January 4, 2016.”
12 23. Although multiple members of the public, including a representative of Petitioner,
13 requested that Item 57 be removed from the consent agenda for the June 8, 2021 meeting, the
14 Council President refused to remove the item from consent as required by the San Diego
15 Municipal Code. The Council President refused to remove the item from consent until after
16 public comment on the consent agenda was closed, and without providing for any opportunity
17 for the public to participate in the discussion on Item 57.
18 24. Without the full reading of the ordinances as required by Charter section 275(d)
19 (and without waiving the requisite full reading), the same six Councilmembers to vote yes on
20 May 25, 2021 on Item 330 and its four subitems as modified, voted yes on June 8, 2021 on Item
21 57 and its two subitems.
22 25. The City filed a notice of determination (NOD) and notice of exemption (NOE)
23 on June 11, 2021. Petitioner thus timely commences this proceeding within the shortest of the
24 limitations periods set forth in Public Resources Code section 21167.
25 26. Petitioner is informed and believes and thereon alleges that on or about July 12,
26 2021, the final ordinances granting the gas and electric franchises to SDG&E were posted on the
27 City’s website, identifying the ordinance granting the gas franchise as Ordinance Number O-
28 21327 and the ordinance granting the electric franchise as Ordinance Number O-21328.
7
1 27. The City’s decision to approve Ordinance Number O-21327, Ordinance Number
2 O-21328, Resolution No. R-313554, Resolution No. R-313555, and the additional agreements
3 contemplated thereby, are hereafter collectively referred to herein as “the Project.”
4 28. Petitioner seeks review by and relief from this Court under Code of Civil
5 Procedure section 1085, Public Resources Code section 21168.5, and other provisions of law.
6 29. Petitioner has given notice to the City of its intent to bring this action; is notifying
7 the Attorney General of this action; and Petitioner elects to prepare the record of proceedings.
8 Copies of these notices are attached hereto as Exhibits “A,” “B,” and “C,” respectively.
9 30. Petitioner has satisfied each and every exhaustion-of-remedies requirement that
10 must be satisfied in order to maintain this action. In particular, the violations of CEQA and
11 other laws alleged in this proceeding were identified for the City orally and in writing by
12 Petitioner and others prior to the close of the public hearing on the Project. Although public
13 discussion was erroneously cut short, Petitioner and others submitted comment letters and did
14 their best, under the circumstances, to comment orally at the May 25, 2021 and June 8, 2021
15 City Council meetings. Petitioner’s and others’ comments contained detailed explanations of
16 the violations of law accruing and consequences likely to result from the City’s actions and
17 failures to conform its conduct to the law.
18 31. Alternatively and additionally, neither Public Resources Code section 21177 nor
19 any other exhaustion-of-remedies requirement may be applied to Petitioner.
20 32. The City’s conduct in approving the Project and in purporting to comply with
21 CEQA constitutes a prejudicial abuse of discretion because, as is explained herein, the City
22 failed to proceed in the manner required by law, its decision is not supported by findings, and
23 the City acted in excess of its jurisdiction.
24 33. Petitioner has no plain, speedy, or adequate remedy in the ordinary course of law,
25 and Petitioner and the public will suffer irreparable harm as a result of the City’s violations of
26 the laws referenced herein, including CEQA, the San Diego City Charter, the California
27 Constitution, and other laws.
28
8
1 34. The City failed to satisfy its clear, present, ministerial duty to act in accordance
2 with the laws referenced herein. When the City is permitted or required by law to exercise
3 discretion in setting policy, taking action, and approving projects under the aforementioned
4 laws, the City remains under a clear, present, ministerial duty to exercise its discretion within
5 the limits of, and in a manner consistent with, those laws. The City has failed and refused to do
6 so, and instead has exercised its discretion beyond the limits and in violation of those laws.
7 35. Petitioner seeks to ensure the public receives the benefits to which it is entitled
8 under the California Constitution and California law, the City Charter, and under CEQA, which
9 “was enacted to (1) inform the government and public about a proposed activity’s potential
10 environmental impacts; (2) identify ways to reduce, or avoid, those impacts; (3) require project
11 changes through alternatives or mitigation measures when feasible; and (4) disclose the
12 government’s rational for approving a project.” (Protecting Our Water & Environmental
13 Resources v. County of Stanislaus (“POWER”) (2020) 10 Cal.5th 479, 488.)
14
FIRST CAUSE OF ACTION
15 Violations of CEQA
Cal. Code Civ. Pro. § 1085
16 (Against All Respondents and Real Parties in Interest)
17 36. Paragraphs 1 through 35 are fully incorporated into this paragraph.
18 37. The City has a mandatory and ministerial duty to comply with CEQA whenever
19 the City approves a non-exempt activity which has the potential for resulting in a direct or a
20 foreseeable indirect physical change in the environment – a “project” as defined by CEQA.

21 (Union of Medical Marijuana Patients, Inc. v. City of San Diego (“Medical Marijuana
22 Patients”) (2019) 7 Cal.5th 1171, 1191-1193; Pub. Res. Code, §§ 21065, 21080, subd. (a).)
23 38. The first of three tiers in the decision-making process mandated by CEQA
24 “requires the agency to conduct a preliminary review to determine whether the proposed activity
25 constitutes a ‘project,’” which CEQA defines as “an activity (1) undertaken or funded by or
26 requiring the approval of a public agency that (2) ‘may cause either a direct change in the
27 environment, or a reasonably foreseeable indirect physical change in the environment.’”
28 (Medical Marijuana Patients, 7 Cal.5th at 1185, 1187.)

9
1 39. The City’s approval of the Project constitutes an “activity directly undertaken by
2 any public agency.” (Pub. Res. Code, § 21065; see also Pacific Rock & Gravel Co. v. City of
3 Upland (1967) 67 Cal.2d 666, 668 [“The rule is firmly established that the granting of a
4 franchise by a city or county is a legislative act.”].)
5 40. Moreover, the Project grants gas and electric franchises and involves the use of
6 fossil fuels and construction in the public right-of-way; and, thus, “by its general nature…is
7 capable of causing a direct or reasonably foreseeable indirect physical change in the
8 environment.” (Medical Marijuana Patients, 7 Cal.5th at 1197.)
9 41. The City misconstrued CEQA’s definition of “project” and failed to apply the
10 proper legal standard under CEQA and California law when it determined that Ordinance
11 Number O-21327, Ordinance Number O-21328, and the Energy Cooperation Agreement
12 referred to in Resolution No. R-313555 “are not subject to CEQA pursuant to CEQA Guidelines
13 section 15060(c)(3) because they are a fiscal and administrative activity of a government that
14 will not result in a direct or indirect physical change in the environment.”
15 42. Additionally, the City failed to apply the proper legal standard under CEQA by
16 declining to consider the “whole of the action” (Cal. Code Regs., tit. 14, § 15378, subd. (a)),
17 instead impermissibly piecemealing or segmenting the Project. The City declined to consider
18 the environmental impacts of any of the agreements contemplated and required by the terms of
19 Ordinance Number O-21327, Ordinance Number O-21328, and the Energy Cooperation
20 Agreement referred to in Resolution No. R-313555. For example, the City erroneously
21 expressly declined to consider the environmental impacts of undergrounding activities because
22 they “go through a distinct and separate planning process.” (Resolution No. R-313554, p. 3;
23 compare with Medical Marijuana Patients, 7 Cal.5th at 1200 [“a local agency ‘cannot argue’
24 that approval of a regulation is not a project ‘merely because further decisions must be made’
25 before the activities causing environmental change will occur”].)
26 43. “Once an activity is determined to be a project, the next question is whether the
27 project is exempt.” (POWER, 10 Cal.5th at 488.)
28
10
1 44. Here, the City erroneously determined that the ordinances and the Energy
2 Cooperation Agreement are “categorically exempt from CEQA pursuant to CEQA Guidelines
3 section 15301(b) (Existing Facilities) because the Activities relate to existing facilities of an
4 investor owned public utility gas and electrical corporation used to provide gas and electric
5 power service to the public and the Activities involve negligible or no expansion of existing or
6 former use, and that none of the exceptions to the exemption, as set forth in CEQA Guidelines
7 section 15300.2, apply.”
8 45. In fact, the express terms of the Ordinance Number O-21327, Ordinance Number
9 O-21328, and the Energy Cooperation Agreement referred to in Resolution No. R-313555
10 preclude application of the existing facilities exemption. Far from involving “negligible or no
11 expansion of use,” the ordinances grant new, long-term gas and electric franchises, and the plain
12 language of the ordinances and the Energy Cooperation Agreement expressly authorize and
13 require new construction where no facilities presently exist.
14 46. Additionally, members of the City Council made oral remarks establishing that
15 the City Council was well aware of imminent, major construction activities by SDG&E where
16 no facilities presently exist. For example, at the May 25, 2021 meeting, one Councilmember
17 expressly referred to “Pomerado road excavations that we know are coming up.”
18 47. Additionally, the existing facilities exception cannot apply where, as here, “the
19 cumulative impact of successive projects of the same type in the same place, over time is
20 significant” and “where there is a reasonable possibility that the activity will have a significant
21 effect on the environment due to unusual circumstances” (Cal. Code Regs., tit. 14, § 15300.2,
22 subd. (b), (c)), such as SDG&E’s history of failing to conform to its agreements and other
23 circumstances described in public comments.
24 48. Where, as here, “the project is discretionary and does not qualify for any other
25 exemption, the agency must conduct an environmental review.” (POWER, 10 Cal.5th at 488.)
26 CEQA’s environmental review process serves to ensure that all potentially significant adverse
27 environmental impacts are evaluated; and, when feasible, avoided or mitigated. (Medical
28 Marijuana Patients, 7 Cal.5th at 1184-1187; Pub. Res. Code, §§ 21002, 21002.1.)

11
1 49. The City admitted potential environmental effects exist, but failed to study, avoid,
2 or mitigate those environmental effects, or make any findings about environmental effects prior
3 to approving the Project, in violation of CEQA. (No Oil, Inc. v. City of Los Angeles (1974) 13
4 Cal.3d 68, 81; Pub. Res. Code, § 21081; Cal. Code Regs., tit. 14, § 15004.)
5 50. Instead of considering the environmental impacts of the Project, the City purported
6 to determine that the ordinances and the Energy Cooperation Agreement, “which further the
7 achievement of the goals in the Climate Action Plan, are consistent with the Final Program
8 Environmental Impact Report (PEIR) prepared for the Climate Action Plan (Project No. 416603 /
9 SCH No. 2015021053), which was certified by San Diego Resolution No. R-310176 on January
10 4, 2016.”
11 51. In reality, the City knew SDG&E refused to reduce greenhouse gas emissions to
12 the fullest extent practicable, and that SDG&E refused to comply with the contemplated updates
13 to the Climate Action Plan; and the Project is inconsistent with the Climate Action Plan that was
14 described and assessed in the final PEIR certified by the City. (See Friends of College of San
15 Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 960.)
16 52. Alternatively, the Project constitutes a later activity that “may cause significant
17 environmental effects not examined in the first tier” PEIR. (Ibid.)
18 53. Either way, the City failed to apply the correct legal analysis required by CEQA
19 in purporting to rely upon the PEIR for its Climate Action Plan, because the City failed to
20 prepare an initial study as required by CEQA (ibid.) and the City’s Climate Action Plan itself.
21 54. Reducing greenhouse gas emissions to the fullest extent practicable and otherwise
22 complying with the City’s Climate Action Plan, including adhering to the expected updates to
23 the Climate Action Plan, becomes particularly critical in light of the climate science that has
24 become available since the City adopted its Climate Action Plan.
25 55. In 2018, recognizing that “scientists agree that worldwide carbon pollution must
26 start trending downward by 2020,” Executive Order B-55-18 established a “new statewide
27 goal…to achieve carbon neutrality as soon as possible, and no later than 2045, and achieve and
28 maintain net negative emissions thereafter.”

12
1 56. As the Legislature recognizes, “[c]ontinuing to reduce greenhouse gas emissions
2 is critical for the protection of all areas of the state, but especially for the state’s most
3 disadvantaged communities, as those communities are affected first, and, most frequently, by
4 the adverse impacts of climate change, including an increased frequency of extreme weather
5 events, such as drought, heat, and flooding. The state’s most disadvantaged communities also
6 are disproportionately impacted by the deleterious effects of climate change on public health.”
7 (Stats. 2016, Ch. 249, § 1, subd. (c).)
8 57. Recent climate science dictates an imperative to focus on methane emissions
9 reductions in the fossil fuel sector in particular, and establishes an increasingly critical need for
10 specific measures targeting methane reduction in order to achieve the greenhouse gas emission
11 reductions necessary to avoid the most catastrophic climate change impacts.
12 58. The National Oceanic & Atmospheric Administration (NOAA) reports that despite
13 the global pandemic, the annual increase in atmospheric methane in 2020 was the largest annual
14 increase recorded since systematic measurements began in 1983.1 The following graphic depicts
15 the dangerous trend in the monthly mean global atmospheric burden of methane:
16 Global CH 4 Monthly Means
17 November 2020: 1891. 9 ppb

November 2019: 1875.6 ppb
Ust updat«J. MMch 05, 2021
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28 NOAA, Despite pandemic shutdowns, carbon dioxide and methane surged in 2020 - Carbon
dioxide levels are now higher than at anytime in the past 3.6 million years (April 7, 2021).
13
1 59. The United Nations Environment Programme and the Climate & Clean Air
2 Coalition to Reduce Short-Lived Climate Pollutants recently published a report explaining that
3 “[r]educing human-caused methane emissions is one of the most cost-effective strategies to
4 rapidly reduce the rate of warming and contribute significantly to global efforts to limit
5 temperature rise to 1.5 degrees above pre-industrial levels, particularly in the fossil fuel sector.”2
6 60. As recently as the day before the June 8, 2021 City Council meeting, scientists
7 from NOAA and UC San Diego’s Scripps Institution of Oceanography reported that
8 concentrations of atmospheric carbon dioxide averaged 419 parts per million in May, 2021 - the
9 highest average for any month since records began over six decades ago.3
10 SECOND CAUSE OF ACTION

Impermissible Delegation of Police Power
11 Cal. Code Civ. Pro. § 1085
(Against All Respondents and Real Parties in Interest)
12
61. Paragraphs 1 through 60 are fully incorporated into this paragraph.
13
62. The City has a mandatory and ministerial duty to set the terms and conditions of
14
franchises (Cal. Const. Art. 12, § 8), “to protect the public from the adverse impacts of utilities
15
operations.” (T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107,
16
1124), and not to surrender, abnegate, divest, or bargain away its police powers.
17
63. Charter Section 11 vests all of the City’s legislative powers in the City Council,
18
“subject to the terms of this Charter and of the Constitution of the State of California..., except
19
such legislative powers as are reserved to the people by the Charter and the Constitution of the
20
State.” Section 11.1 prohibits delegation of the Council’s legislative power, “so that its
21
members must not delegate legislative power or responsibility which they were elected to
22
exercise in the adoption of any ordinance or resolution which raises or spends public monies,
23
including the City’s annual budget ordinance or any part thereof…or any ordinance or
24
resolution setting public policy, except where authorized by the Charter…”
25
26
2
UN Environment Programme et al., Global Methane Assessment – Benefits and Costs of
27 Mitigating Methane Emissions (May 6, 2021), p. 8, 87-88.
3
28 Joshua Emerson Smith, Atmospheric concentrations of carbon dioxide in May surpassed any
month since recordkeeping began, San Diego Union Tribune (June 7, 2021).
14
1 64. Section 103.1 of the San Diego City Charter specifically places the power to set
2 the terms of franchise agreements in the City Council’s explicit purview: “…The Council shall
3 have power to provide reasonable terms and conditions under which such businesses may be
4 carried on and conducted within The City of San Diego.”
5 65. Charter Section 12 provides that each of the members of the City Council “shall
6 have the right to vote upon all questions before it,” and Charter Section 15 instructs that
7 “[e]xcept as otherwise provided herein the affirmative vote of a majority of the members elected
8 to the Council shall be necessary to adopt any ordinance, resolution, order or vote…”
9 66. Charter Section 103 provides one of the limited circumstances where something
10 other than a majority vote is required to take an action. Section 103 explains that “[t]he Council
11 shall have power to grant to any person, firm or corporation, franchises, and all renewals,
12 extensions and amendments thereof, for the use of any public property under the jurisdiction of
13 the City,” and that “[s]uch grants shall be made by ordinance adopted by vote of two-thirds (2/3)
14 of the members of the Council and only after recommendations thereon have been made by the
15 Manager and an opportunity for free and open competition and for public hearings have been
16 given.” Section 103 also explains that “No franchises shall be transferable except with the
17 approval of the Council expressed by ordinance…Absent Council approval, the franchise shall
18 not be deemed to have been transferred to the new entity...”
19 67. Charter Section 104 makes explicit the requirement that a franchise may be
20 terminated at any time when necessary for the welfare of the City: “…The Council may fix the
21 term of each new franchise in accordance with the laws of the State of California, provided that
22 any franchise may be terminated by ordinance whenever the City shall determine to acquire
23 by condemnation or otherwise the property of any utility necessary for the welfare of the City,
24 such termination to be effective upon and not before payment of the purchase price for the
25 property to be acquired...” (emphases added).
26 68. Charter Section 99 prohibits the City from incurring “any indebtedness or liability
27 in any manner or for any purpose exceeding in any year the income and revenue provided for
28 such year,” except in specific circumstances not applicable here.

15
1 69. The City Council violated the aforementioned provisions of the Charter and
2 California law by surrendering, abnegating, divesting, or bargaining away its police power, and
3 by failing to protect the public from the adverse impacts of SDG&E’s operations.
4 70. While only the City Council may set the terms and conditions for public utility
5 operations and only the City Council may establish City policy, the City Council surrendered its
6 duties to set the terms and conditions of the franchises and its policy making authority except
7 with respect to those terms to which SDG&E agrees, effectively giving SDG&E veto power and
8 bargaining away the City’s power to municipalize, to establish climate policy, to regulate the use
9 and repair of public streets, and to otherwise protect the public from the harmful effects of
10 SDG&E’s operations.
11 71. One Councilmember who voted yes described the Administrative MOU as “the
12 bread and butter of how the utility protects our assets, our streets, our sidewalks, our bike lanes,”
13 but asked the Mayor to commit to bringing the Administrative MOU to a Council Committee
14 solely to “be helpful in monitoring that and making sure it’s transparent and accountable.”
15 72. The City Council unlawfully bargained away its police power and tied the hands of
16 future Councils by approving terms that make it harder than prescribed by the Charter for a
17 future council to municipalize or terminate the franchises, by purporting to require a 2/3 vote to
18 terminate the franchises after 10 years.
19 73. The 2/3 vote to terminate not only violates the City Charter but contradicts the
20 City Council’s intention to enter into a ten-year agreement and not a twenty-year agreement. As
21 one Councilmember who voted yes expressed: “let’s be clear it’s not a 10 plus 10, this is a 10
22 year agreement, and if SDG&E proves to be a good partner, they get an 10 extra years.” The 2/3
23 vote to terminate construct means that, even if a majority of five City Council members are in
24 favor of terminating the agreement(s) at year 10, they will be unable to take that action and the
25 second 10-year term will proceed.
26 74. Petitioner is informed and believes and thereon alleges that the City Council failed
27 to comply with Charter Section 104, by agreeing to termination requirements that require
28 monetary payments without ensuring that the funds for such payments will be available.
16
1 75. Although one Councilmember who voted yes expressed a desire to create “an
2 energy independence fund,” recognizing that the City would need to “allocate revenue from
3 SDGE’s bid payment over the course of the initial 10 year term so should the city exit the deal it
4 has the money to pay termination costs,” Petitioner is informed and believes that no such action
5 in fact was taken prior to approval of the electric ordinance to ensure that the money would be
6 available.
7 76. The City Council also surrendered to the CPUC the City’s right to set the terms
8 and conditions of franchises for public utilities, by erroneously suggesting that the CPUC has
9 jurisdiction over the City’s imposition of franchise fees.
10 77. To the contrary, as the CPUC correctly determined in CPUC Resolution E-3788:
11 “the amount of money the City charges as a franchise fee as well as the accounting of that money
12 are decisions for the City and not this Commission.” (CPUC Resolution E-3788, p. 6.)
13 78. The CPUC properly found that the CPUC lacks jurisdiction over the City’s
14 authority to impose franchise fees, finding that “[t]his Commission should not judge the
15 lawfulness of the procedures that a city takes to enact an ordinance or amend an agreement, nor
16 should we question a city’s authority to impose, levy or increase franchise fees,” and that
17 “[a]lthough the Commission has no jurisdiction over a city’s authority to impose franchise fees
18 on a utility, it does have jurisdiction over allowing a utility to deviate from Commission rules
19 governing undergrounding.” (CPUC Resolution E-3788, p. 11 [Findings 6-7].) The CPUC in
20 Resolution E-3788 also expressly declined to “question a city’s judgment and interpretation of
21 the law regarding whether the franchise fee increases constitute ‘special taxes’ requiring a vote
22 of the citizens.” (CPUC Resolution E-3788, p. 5.)
23
THIRD CAUSE OF ACTION
24 Violations of Competitive Bidding Mandates
27 80. The City has a clear, present, and ministerial duty under the City Charter to ensure
28 all contracts are competitively bid.

17
1 81. Charter Section 94 states: “Contracts for the construction, reconstruction or repair
2 of public buildings, streets, utilities and other public works, for the provision of goods or
3 services, and the hiring of architects, engineers, and other consultants, shall be competitively bid
4 pursuant to rules established by ordinance of the City Council,” and that “[a]ll contracts entered
5 into in violation of this Section shall be void and shall not be enforceable against said City…”
6 82. The City has a clear, present, and ministerial duty to avoid favoritism in public
7 contracts. Charter Section 100 states: “No officer or employee of the City shall favor one bidder
8 over another, by giving or withholding information, or shall willfully mislead any bidder in
9 regard to the character of the material or supplies called for, or shall knowingly accept materials
10 or supplies of a quality inferior to that called for by the contract...”
11 83. Petitioner is informed and believes and thereon alleges that the ITBs violated the
12 public bidding requirements for reasons including that the ITBs attached as exhibits one
13 ordinance for companies that have a “constitutional franchise” and one ordinance for those that
14 do not. Companies with a constitutional franchise would start out with a competitive advantage
15 to those who do not possess a constitutional franchise, because a city can neither charge money
16 for a constitutional franchise nor may it terminate a constitutional franchise without
17 compensation by granting an exclusive franchise to a different entity.
18 84. The 1889 San Diego City Charter gave the Common Council authority over the
19 use of its streets and the terms of its franchises; and, in 1896, these Charter provisions became
20 effective notwithstanding contrary general laws when the California Constitution was amended
21 to authorize municipalities to follow their own rules with respect to municipal affairs. (See City
22 of San Diego v. Southern California Tel. Co. (1949) 92 Cal.App.2d 793, 798, 803-806
23 [disapproved on other grounds by Pacific Tel. & Tel. Co. v. City & County of San Francisco
24 (1959) 51 Cal.2d 766, 776].)
25 85. Petitioner is informed and believes and thereupon alleges that San Diego
26 Consolidated Gas and Electric Company was not incorporated until 1905; and that SDG&E does
27 not possess any rights “pursuant to Section 19 of Article XI of the Constitution of the State of
28 California, as said section existed prior to its amendment on October 10, 1911.”
18
1 86. Petitioner is informed and believes and thereon alleges that the ITB violated public
2 bidding requirements because the terms of the ordinances changed the criteria after the bids were
3 unsealed from the terms of the ordinances attached as exhibits to the ITBs. (See e.g. Eel River
4 Disposal and Resource Recovery, Inc. v. County of Humboldt (2013) 221 Cal.App.4th 209, 237.)
5 87. Petitioner seeks to enforce the public duties established by the Charter’s
6 competitive bidding requirements, which “are for the purposes of inviting competition, to guard
7 against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best
8 work or supplies at the lowest price practicable, and they are enacted for the benefit of property
9 holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so
10 construed and administered as to accomplish such purpose fairly and reasonably with sole
11 reference to the public interests.” (Domar Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th
12 161, 173 [quoting 10 McQuillan, Municipal Corporations (3d rev. ed. 1990) § 29.29, p. 375].)
13
FOURTH CAUSE OF ACTION
14 Unlawful Imposition of Special Tax
17 89. The City has a clear, present, and ministerial duty to avoid imposing taxes or
18 special taxes without a vote of the people.
19 90. Charter Section 76 states: “Notwithstanding any provision of this Charter to the
20 contrary, a special tax, as authorized by Article XIIIA of the California Constitution, may be
21 levied by the Council only if the proposed levy has been approved by a two-thirds vote of the
22 qualified electors of the City voting on the proposition; or if the special tax is to be levied upon
23 less than the entire City, then the tax may be levied by the Council only if the proposed levy has
24 been approved by a two-thirds vote of the qualified electors voting on the proposition in the area
25 of the City in which the tax is to be levied.”
26 91. Article XIIIC of the California Constitution states: “No local government may
27 impose, extend, or increase any special tax unless and until that tax is submitted to the electorate
28 and approved by a two-thirds vote…” . (Cal. Const. art. XIIIC, § 2, subd. (d).)
19
1 92. In 2010, California voters passed Proposition 26, which amended the California
2 Constitution to expand the definition of the term “tax,” defining the term as “any levy, charge,
3 or exaction of any kind imposed by a local government except” those categories specifically
4 enumerated in subdivision (e) of Article 13C. (Cal. Const. art. XIIIC, § 1, subd. (e).)
5 93. Petitioner is informed and believes and thereon alleges that the 3% charge, the
6 Electric Franchise Fee Surcharge, the Municipal Undergrounding Surcharge, and the Gas
7 Franchise Fee Surcharge are charges that do not fall within any of the enumerated exceptions
8 and thus constitute a “tax” within the meaning of the Constitution.
9 94. The first enumerated exception consists of a “charge imposed for a specific
10 benefit conferred or privilege granted directly to the payor that is not provided to those not
11 charged, and which does not exceed the reasonable costs to the local government of conferring
12 the benefit or granting the privilege.” (Cal. Const. art. XIIIC, § 1, subd. (e)(1).)
14 Undergrounding Surcharge, and the Gas Franchise Fee Surcharge are not imposed for a
15 privilege granted “directly to the payor,” because the “payor” is the SDG&E customer, but the
16 privilege is granted to SDG&E. (Riverside County Transportation Com v. Southern California
17 Gas Co. (2020) 268 Cal.Rptr.3d 196, 222 [“A franchise is a privilege conferred upon an
18 individual or a corporation for use of a sovereign body's property.”].)
19 96. Nor are the charges imposed for a benefit granted directly to the payor that do not
20 exceed the reasonable costs to the City in conferring the benefit. (Humphreville v. City of Los
21 Angeles (2020) 58 Cal.App.5th 115, 124 (“where a city imposes a franchise fee on a private
22 utility, which is then passed-through to each customer as a line-item on their monthly bills…the
23 city is using the utility as a proxy and the monthly fee is a ‘tax’ unless the amount of that line-
24 item fee is reasonably related to the benefit of the franchise.”)
25 97. The fourth enumerated exception to the definition of “tax” consists of a “charge
26 imposed for entrance to or use of local government property, or the purchase, rental, or lease of
27 local government property.” (Cal. Const. art. XIIIC, § 1, subd. (e)(4).)
28
20
2 Undergrounding Surcharge, and the Gas Franchise Fee Surcharge do not fit within the fourth
3 enumerated exception because “nothing in Proposition 26 indicates that a charge imposed on
4 one party for someone else's use of government property comes within the exception...” (Jacks
5 v. City of Santa Barbara (2017) 3 Cal.5th 248, 283, fn. 3 (dis. opn. of Chin, J.)), and because the
6 aforementioned charges have “become a vehicle for generating revenue independent of the
7 purpose of the fees” (id. at 269). The City’s Chief Financial Officer testified at the City Council
8 meeting that “short of decimating whole departments,” the City needed funds including the
9 “franchise fee” for “homeless programs, to infrastructure, climate equity funding…, library
10 hours, both some of the addition to the library in terms of the material budget as well as the
11 hours that are being restored in the Mayor’s May revise, and then some smaller dollar amounts
12 being areas such as tree trimming, brush removal, brush management, and so forth.”
13 99. The second, third, fifth, sixth, and seventh enumerated exceptions are inapposite
14 because the charges are not imposed for a local government service or product, for local
15 government regulatory costs, as a result of a violation of law, as a condition of property
16 development, or for assessments and property related fees, respectively. (Cal. Const. art. XIIIC,
17 § 1, subds. (e)(2), (3), (5), (6), (7).)
18 100. Proposition 26 also places the burden of proof on local governments: “The local
19 government bears the burden of proving by a preponderance of the evidence that a levy, charge,
20 or other exaction is not a tax, that the amount is no more than necessary to cover the reasonable
21 costs of the governmental activity, and that the manner in which those costs are allocated to a
22 payor bear a fair or reasonable relationship to the payor's burdens on, or benefits received from,
23 the governmental activity.” (Cal. Const. art. XIIIC, § 1.) Here, the City has not and cannot
24 establish that the charges are not taxes, “that the amount is no more than necessary to cover the
25 reasonable costs of the governmental activity, and that the manner in which those costs are
26 allocated to a payor bear a fair or reasonable relationship to the payor's burdens on, or benefits
27 received from, the governmental activity.”
28
21
1 PRAYER FOR RELIEF
2 WHEREFORE, Petitioner respectfully prays for relief as follows:
3 On the First Cause of Action
4 1. For a peremptory writ of mandate directing that:
5 (a) The City void its approvals of Ordinance Number O-21327, Ordinance Number
6 O-21328, Resolution No. R-313554, Resolution No. R-313555, and any and all associated
7 agreement(s);
8 (b) The City and Real Parties (and any and all persons acting at the request of, in
9 concert with, or for the benefit of one or more of them) suspend any action authorized by the
10 ordinances, resolutions, and associated agreement(s) that could result in any change or alteration
11 to the physical environment unless and until the City complies with CEQA and the Judgment of
12 this Court; and
13 (c) That the City prepare an initial study to use in assessing whether any future
14 project is consistent with the program environmental impact report for the Climate Action Plan
15 and otherwise complying with CEQA;
16 On the Second Cause of Action
18 (a) The City Council refrain from surrendering, abnegating, divesting, or bargaining
19 away its policy making authority, its duty to protect the public from the harmful effects of public
20 utility operations, and its duty to set the terms and conditions of franchises and the terms and
21 conditions upon which public utility companies operate in the City of San Diego;
22 (b) The City void all provisions of the ordinances awarding the gas and electric
23 franchises and of the associated resolutions and agreement(s) that tie the hands of future City
24 Councils by making it more difficult to municipalize or otherwise terminate franchises than
25 prescribed by the City Charter, including (i) the 2/3 vote termination requirements in the
26 ordinances awarding the gas and electric franchises and (ii) the bid refund provisions set forth in
27 the ordinance awarding the electric franchise; and to refrain from including such provisions in
28 any future ordinance;

22
1 (c) The City Council void all provisions of the ordinances awarding the gas and
2 electric franchises and of the associated agreement(s) that provide private parties with veto
3 power over City policy or over the terms and conditions of franchises and utility operations; and
4 to refrain from including such provisions in any future ordinance(s).
5 On the Third Cause of Action
7 (a) The City void its approvals of the ordinances awarding the gas and electric
8 franchises and associated agreement(s);
9 (b) The City refrain from including two different ordinances – one for companies
10 with a “constitutional franchise” and one for those who do not – in any future invitation to bid;
11 On the Fourth Cause of Action
13 (a) The City comply with Proposition 26 with respect to the 3% charge, the Electric
14 Franchise Fee Surcharge, the Municipal Undergrounding Surcharge, and the Gas Franchise Fee
15 Surcharge; and
16 (b) The City secure all monetary consideration for the franchises solely from the
17 franchisee unless and until the City complies with Proposition 26 and the Judgment of this Court;
18 On All Causes of Action
19 5. For costs of suit;
20 6. For reasonable attorneys’ fees; and

21 7. For such other and further relief as the Court deems just and proper.
22 Dated: July 12, 2021 Respectfully Submitted,

23 By: /s/ Malinda Dickenson
Malinda Dickenson
24
Attorney for Petitioner
25 The Protect Our Communities Foundation
26
27
28
23
1 Verification
2 I, Bill Powers, declare:
3 I am a member of the Board and Board Secretary of Petitioner The Protect Our
4 Communities Foundation. I am authorized by Petitioner to make this verification on its behalf. I
5 have read the foregoing Petition and know the contents thereof, and the facts therein stated are
6 true to my own knowledge, except as to those matters stated on information and belief, and as to
7 those matters, I believe them to be true.
8 I declare under penalty of perjury under the laws of the State of California that the
9 foregoing is true and correct.
10 Executed on July 12, 2021 at San Diego, California.
11
By: /s/ Bill Powers
12 Bill Powers, Secretary
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
EXHIBIT A
The Protect Our Communities Foundation
4452 Park Boulevard #309
July 10, 2021
City of San Diego

c/o Elizabeth Maland, City Clerk
Office of the City Clerk
202 C Street MS 2A
San Diego, CA 92101
Via United States Mail
Re: Public Resources Code Section 21 167 .5 Notice of Commencement of Action
Dear Ms . Maland:
Pursuant to Public Resources Code section 21167 .5, this letter provides written
notice that The Protect Our Communities Foundation intends to commence an action in
the San Diego Superior Court challenging certain actions by the City of San Diego
related to the awards of gas and electri c franchises to San Diego Gas & E lectric
Company. The action alleges that the City approved ordinances awarding the gas and
electric franchises and an associated agreement without the necessary environmental
analys is required by the California Environmental Quality Act. The action also
challenges the City's approvals based on violations of the City Charter, the California
Constitution, and other laws. If you have any questions, please fee l free to contact me.
Sincerely,
Malinda Dickenson
Protect Our Communities Foundation

4452 Park Blvd., Suite 309, San Diego, CA 92116
www.protectourcommunities.org
POS-030
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
Malinda Dickenson
State Bar No. 222564
San Diego , California 92 11 6
( 619) 693-4788
TELEPHONE NO.: FAX NO , (Optional) ·
[email protected]
E-MAIL ADDRESS (Optional) ·
ATTORNE Y FOR (Name) · THE PROTECT OUR COMMUNITI ES FOUNDATION
SU PERIOR COURT OF CALIFORNIA, COU NTY OF San Diego

STREET ADDRESS 330 w. Broadway
MAILING ADDRESS·
San Diego , Cal if ornia 92101

CITY AN D ZIP CODE:
Hall of Justice
BRANCH NAME·
PETITIONER/PLAINTIFF: THE PROTECT OUR COMMUNITIES FOUNDATION
RESPONDENT/DEFENDANT: CITY OF SAN DIEGO
CASE NUMB ER:

PROOF OF SERVICE BY FIRST-CLASS MAIL-CIVIL
(Do not use this Proof of Service to show service of a Summons and Complaint.)
1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the coun ty where the mai ling
took place.
2 . My residence or business address is : 4452 Park Boul e vard #309

San Diego , California 92 1 16
3. On (date): July 1 0, 2021 I mailed from (city and state): San Di e g o , Cal ifornia
the fol lowing documents (specify):
Pub lic Resources Code Section 21 1 67. 5 Notice of Commencement of Action
D The documents are listed in the Attachment to Proof of Service by First-Class Mail- Civil (Documents Served)
(form POS-030(O)) .
4. I served the documents by enclosing them in an envelope and (check one):
a. W de positing the sea led envelope with the United States Postal Service with the postage fully prepaid.
b. D p lacing the envelope for collection and mailing fo llowing our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing correspondence for mai ling. On the same day that correspondence is
placed for col lection and mailing , it is deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid .
5. The envelope was addressed and mailed as follows :
a. Nameofpersonserved: Elizabeth Maland, City Clerk
b. Address of person served :
Ci ty of San Diego I c/o Elizabeth Maland , Cit y Clerk
Off i ce of the City Clerk I 202 C St reet MS 2A I San Di ego , CA 9210 1
D The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service
by First-Class Mail-Civil (Persons Served) (POS-030(P)).
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: July 1 0 , 2021

Malinda Dickenson
(TYPE OR PRINT NAME OF PERSON COMPLE TING THIS FORM) ► (SIGNATURE OF PERSON COMPLETING THIS FORM)
Form Approved fo r Optional Use

Judicial Coun ci l of California PROOF OF SERVICE BY FIRST-CLASS MAIL- CIVIL Code of Civil Procedu re,§§ 1013, 1013a
POS-030 [N ew January 1, 2005) (Proof of Service)

EXHIBIT B
The Protect Our Communities Foundation
July 12, 2021
CEQA Coordinator
Office of the Attorney General
Environment Section
1300 "I" Street
Sacramento, CA 95814-2919
Via Electronic Mail ([email protected])
Re: The Protect Our Communities Foundation v. City of San Diego et al.
Honorable Attorney General:
Pursuant to Section 21167.7 of the Public Resources Code, attached please find a
copy of the Petition for Writ of Mandate filed by The Protect Our Communities
Foundation against the City of San Diego et al. in the San Diego Superior Court. The
Petition challenges certain actions by the City of San Diego related to the awards of gas
and electric franchises to San Diego Gas & Electric Company. The action alleges that the
City approved ordinances awarding gas and electric franchises and an associated
agreement without the necessary environmental analysis required by the California
Environmental Quality Act. The action also challenges the City’s approvals based on
violations of the City Charter, the California Constitution, and other laws. If you have
any questions, please feel free to contact me.
Sincerely,
Malinda Dickenson
Encl.
Protect Our Communities Foundation

4452 Park Blvd., Suite 309, San Diego, CA 92116
www.protectourcommunities.org
EXHIBIT C
1 Malinda Dickenson (State Bar No. 222564)
THE PROTECT OUR COMMUNITIES FOUNDATION
2 4452 Park Blvd., Suite 309
3 Telephone: (619) 693-4788
Email: [email protected]
4 Attorney for Petitioner The Protect Our Communities Foundation
5
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN DIEGO
10
11
THE PROTECT OUR COMMUNITIES CASE NO. ______________
12 FOUNDATION, a California nonprofit
corporation,
13
Petitioner,
14 NOTICE OF ELECTION TO PREPARE
v. THE RECORD OF PROCEEDINGS
15
CITY OF SAN DIEGO, a municipal
16 corporation; and DOES 1-100, [Pub. Res. Code, § 21167.6]
17 Respondent(s).
18 SAN DIEGO GAS & ELECTRIC COMPANY,
a California corporation; and ROES 101-200,
19
Real Parties In Interest(s).
20
21
22
23
24
25
26
27
28
NOTICE OF ELECTION
1 TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS:
2 PLEASE TAKE NOTICE that Petitioner The Protect Our Communities Foundation
3 elects, pursuant to Section 21167.6(b)(2) of the Public Resources Code, to prepare the record of
4 proceedings. Petitioner therefore requests that Respondent notify Petitioner’s attorney of record
5 in writing when the items comprising the record of proceedings are available for inspection and
6 photocopying.
7 To the extent necessary to facilitate Respondent’s prompt response to this notice,
8 Petitioner’s request constitutes a request to inspect public records under the California Public
9 Records Act.
10 Petitioner reserves the right to request that Respondent prepare any portion of the record
11 that is not otherwise reasonably available except from Respondent. However, nothing in this
12 notice shall be construed as Petitioner’s express or implied agreement to make any payment to
13 Respondent for its assembly of the items comprising the record of proceedings or for any other
14 expense incurred by Respondent in providing Petitioner with access to the items constituting the
15 record. In the absence of Petitioner’s express written acknowledgement to the contrary, this
16 notice asks Respondent to do nothing more than provide access to the items comprising the
17 record.
18 Dated: July 12, 2021 Respectfully Submitted,

19 By: /s/ Malinda Dickenson
Malinda Dickenson
20
Attorney for Petitioner
22
23
24
25
26
27
28
1
NOTICE OF ELECTION

2021-07-12 PCF Petition For Writ of Mandate - Franchise Agreements

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1 Malinda Dickenson (State Bar No.

VERIFIED PETITION FOR WRIT OF MANDATE

5 1. This case challenges certain actions by Respondent CITY OF SAN DIEGO

9 Cooperation Agreement” without properly analyzing, disclosing, avoiding, or minimizing the

15 2. Petitioner is a nonprofit public benefit corporation formed and existing under

4 franchises granted by the ordinances challenged herein.

12 the allegations or the project challenged herein.

14 6. On December 17, 1970, six of nine City Councilmembers voted to adopt

24 8. SDG&E, claiming to possess a “constitutional franchise” well over a century after

3 reveals the following deviations, among others:

12 “Administrative MOU” and “Undergrounding MOU,” agreements to be negotiated after the

14 with the express terms of a memorandum of understanding attached as Attachment 2 to the

19 SDG&E regarding the City’s undergrounding decision-making;

28 associated with the City’s Pure Water program);

6 Council if the Compliance Review Committee recommends termination of the Franchise

13 risks of disputes about SDG&E’s production of records.

20 Climate Action Plan (Project No. 416603 / SCH No. 2015021053).”

24 pursuant to Charter Section 103.”

25 (c) Subitem-C was described as “Introduction of an Ordinance awarding an Electric

28 6 votes required pursuant to Charter Section 103.”

7 charge”); (3) an “Electric Franchise Fee Surcharge,” which includes a “Municipal

13 ordinances purport to impose upon taxpayers.

22 agreement, which it refers to as “Implementation Plan.” The “Implementation Plan” referred to

23 in the Energy Cooperation Agreement has yet to be negotiated.

17 25, 2021 meeting.

28 days after the June 8, 2021 meeting.

4 Energy Cooperation Agreement itself is not attached to Resolution No. R-313555.

12 23. Although multiple members of the public, including a representative of Petitioner,

17 for the public to participate in the discussion on Item 57.

24 limitations periods set forth in Public Resources Code section 21167.

3 contemplated thereby, are hereafter collectively referred to herein as “the Project.”

17 failures to conform its conduct to the law.

19 any other exhaustion-of-remedies requirement may be applied to Petitioner.

23 the City acted in excess of its jurisdiction.

13 Resources v. County of Stanislaus (“POWER”) (2020) 10 Cal.5th 479, 488.)

20 foreseeable indirect physical change in the environment – a “project” as defined by CEQA.

28 (Medical Marijuana Patients, 7 Cal.5th at 1185, 1187.)

4 franchise by a city or county is a legislative act.”].)

7 capable of causing a direct or reasonably foreseeable indirect physical change in the

8 environment.” (Medical Marijuana Patients, 7 Cal.5th at 1197.)

14 will not result in a direct or indirect physical change in the environment.”

25 before the activities causing environmental change will occur”].)

7 section 15300.2, apply.”

13 require new construction where no facilities presently exist.

23 circumstances described in public comments.

28 Marijuana Patients, 7 Cal.5th at 1184-1187; Pub. Res. Code, §§ 21002, 21002.1.)

17 environmental effects not examined in the first tier” PEIR. (Ibid.)

28 maintain net negative emissions thereafter.”

7 (Stats. 2016, Ch. 249, § 1, subd. (c).)

8 57. Recent climate science dictates an imperative to focus on methane emissions

11 reductions necessary to avoid the most catastrophic climate change impacts.

16 Global CH 4 Monthly Means

17 November 2020: 1891. 9 ppb

3 “[r]educing human-caused methane emissions is one of the most cost-effective strategies to

10 SECOND CAUSE OF ACTION

4 carried on and conducted within The City of San Diego.”

18 not be deemed to have been transferred to the new entity...”

25 property to be acquired...” (emphases added).

28 such year,” except in specific circumstances not applicable here.

18 terminate the franchises after 10 years.

25 second 10-year term will proceed.

9 jurisdiction over the City’s imposition of franchise fees.

19 governing undergrounding.” (CPUC Resolution E-3788, p. 11 [Findings 6-7].) The CPUC in