Filed 1/30/14 Certified for publication 2/26/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION TWO


TINA YESSON,
         Plaintiff and Appellant,
                                                                   A136527
v.
SAN FRANCISCO MUNICIPAL                                            (Sonoma County Super. Ct.
TRANSPORTATION AGENCY,                                             No. SPR83944)
         Defendant and Respondent.


                                              INTRODUCTION
         Tina Yesson, successor trustee of the John C. Enrico 1999 Revocable Living
Trust, appeals from the order of the Sonoma County Superior Court denying her petition
for an order determining that she, as the trustee of her father’s trust, had the right to sell
the taxi permit (also known as a taxi medallion) held by her father at the time of his
death, under the Taxi Medallion Sales Pilot Program (Pilot Program) adopted by
respondent San Francisco Municipal Transportation Agency (SFMTA). The court
concluded that neither the medallion nor the right to sell the medallion became the
property of the decedent or of his estate or trust as a result of SFMTA’s authorization of
the Pilot Program. We shall affirm the trial court, but on the alternative grounds found
“persuasive” by the trial court, that the Pilot Program did not go into effect until March
28, 2010, after Enrico’s death.




                                                         1
                                        BACKGROUND1
       On December 12, 1968, the San Francisco Police Commission granted John C.
Enrico permit number 846, to operate a taxicab in San Francisco (sometimes referred to
as the City). Under then-existing city law, taxi permits could be inherited, sold, assigned
and transferred.
       In 1978, San Francisco voters passed Proposition K, an initiative ordinance
establishing a new system of regulation for city-issued taxi medallions. Proposition K
barred the inheritance, sale, assignment or transfer of taxi medallions. Under Proposition
K, all taxi medallions belonged to the City, had to be held by working drivers, and were
distributed as they became available to individuals on the Medallion Waiting List. In
accordance with the requirements of Proposition K, Enrico surrendered his permit to the
City and on December 17, 1979, the City issued him taxi medallion number T-291. His
operation of the medallion was subject to the requirements of Proposition K, as well as to
additional taxi regulations codified in Article 16 of the San Francisco Police Code and
subsequently in the San Francisco Transportation Code (Transportation Code). In 1984,
the police department approved Enrico’s request to lease Medallion T-291 to Yellow Cab
Company. Enrico leased the medallion to Yellow Cab Company from 1984 until his
death in 2010. During this time, Yellow Cab Company paid Enrico a monthly lease fee
in exchange for operating the medallion.
       In 2007, San Francisco voters passed Proposition A, giving the San Francisco
Board of Supervisors the power to transfer regulatory authority over taxi affairs to the
SFMTA. Authority to regulate San Francisco taxis passed to SFMTA in March 2009.
Subsequently, the SFMTA Board of Directors (SFMTA Board) re-codified Proposition
K’s requirements, as well as additional taxi regulations, in the Transportation Code,
Division II, Article 1100, et seq. Proposition A also gave the SFMTA Board the power
to adopt taxi regulations that would override “any prior ordinance,” including the
provisions of Proposition K.


       1
           The parties filed a Stipulated Statement of Facts in the trial court.

                                                 2
       By 2009, when SFMTA assumed its regulatory function over the local taxi
industry, significant flaws had become apparent in the process by which medallions were
issued. It is unlawful to operate a taxi in the City without a City-issued medallion. The
demand for medallions far exceeded the supply and medallions were issued to drivers on
a waiting list, for a fee of approximately $1,600. Approximately 3,000 names were on
the waiting list at the time of trial and people qualifying for medallions had been on the
waiting list for about 15 years. A medallion holder is allowed to lease the medallion to a
cab company or to a driver. It is thus an income-producing asset for the medallion
holder. However, because the waiting list is so lengthy, applicants are often senior
citizens by the time they actually receive a medallion. At the same time local law
requires that every medallion holder who received a medallion after Proposition K was
adopted in 1978, and who is physically able to do so must be a so-called “full-time
driver.” That is, the medallion holder must actually drive his or her taxi for at least 156
four-hour shifts, or for 800 hours, during a single calendar year. (Transportation Code,
§ 1102, subdivision (o).) The advanced age of many medallion holders can make it
difficult, or even unsafe, for them to comply with the City’s legal requirements,
especially the “full-time driving” requirement. SFMTA began exploring possible
reforms to the Proposition K-based medallion distribution service, holding multiple town
hall meetings to solicit input from various stakeholders.
       At a public hearing on February 26, 2010, the SFMTA Board approved Resolution
No. 10-029, adopting amendments to Transportation Code, Division II, Article 1100, to
implement the Pilot Program.2 The resolution explained that the “Pilot Program

       2
        The Resolution itself stated in relevant part:
       “RESOLVED, That the Board adopts the Taxi Medallion Sales Pilot Program,
allowing the SFMTA to sell up to 60 Taxi Medallions that have been returned to the
SFMTA, and allowing Taxi Medallion Holders age 70 and above and other Taxi
Medallion Holders who are disabled to sell their Medallions at a price to be established
by the SFMTA to qualified taxicab Drivers, as set forth in amendments to Transportation
Code Division II, Article 1100; and, be it further
       “RESOLVED, That no Taxi Medallion shall be purchased sold [sic] pursuant to
the Taxi Medallion Sales Pilot Program until the Executive Director CEO adopts a

                                              3
represents an interim measure that would allow the San Francisco taxi industry to
gradually transition away from the Waiting List system of Medallion distribution that has
characterized the San Francisco taxi industry for 32 years” and that it “represents an
opportunity to collect information, monitor results and elicit industry recommendations
for the purpose of adopting a long-term Taxi Medallion reform solution . . . .” The
resolution enacted new Transportation Code section 1109, subdivision (e), stating, among
other things: “Any medallion held by a natural person who: (1) has attained or will
attain the age of 70 years old or older as of December 31, 2010; or (2) has a bona fide
disability . . . is eligible for sale in accordance with this subsection (e).” (Transportation
Code § 1109, subd. (e)(1).) Transportation Code section 1109, subdivision (e)(3)
authorized the Director of Transportation to set the initial medallion sales price after a
public hearing and at a price not to exceed $400,000 and after considering certain specific
factors in setting that price. Transportation Code section 1109, subdivision (e)(6) further
stated that “Medallions shall be purchased and sold under the Pilot Program in
accordance with procedures adopted by the SFMTA.”
       The resolution also stated that: “[p]rior to authorizing any Medallion sale, SFMTA
staff will return to the Board to inform the Board of the established Medallion Sale Price
and to propose additional regulations governing (1) Medallion financing following
meetings with potential lenders, and (2) the composition of an industry group to monitor
the results of the Pilot Program that will provide recommendations for long-term taxi
industry reform . . . .”


Medallion Sale Price and provides notice to the public of such Medallion Sale Price; and,
be it further
        “RESOLVED, That any Medallion offered to an applicant on the Waiting List
after February 16, 2010 shall be counted toward the number of Medallions offered to
Waiting List applicants pursuant to the Taxi Medallion Sales Pilot Program; and, be it
further
        “RESOLVED, That the Board ratifies the decision of SFMTA staff to close the
Waiting List effective December 16, 2009 and all other actions by SFMTA staff between
March 1, 2009 to February 15, 2010 taken for the purpose of implementing
Transportation Code, Division II, Article 1100.”

                                               4
       On March 23, 2010, Enrico died at the age of 96.
       At public hearings held March 30, April 20 and May 4, 2010, the SFMTA Board
adopted additional regulations to implement the Pilot Program. On or about April 14,
2010, SFMTA mailed to potentially eligible medallion sellers and buyers a “Notice &
Opportunity to Participate in Taxi Medallion Sales Pilot Program,” a “Buyers’
Participation Form,” and a “Sellers’ Participation Form.
       On April 21, 2010, Yesson, a resident of Sonoma County, filled out and signed a
“Sellers’ Participation Form” as “Trustee for John Enrico” and mailed it to the SFMTA,
which received the form on April 28, 2010. On April 26, 2010, Yesson Notified Yellow
Cab Company by phone of Enrico’s death and on April 27, 2010, Yellow Cab Company
transmitted written notice to the SFMTA that Enrico had died.
       As of the May 15, 2010 filing deadline, the SFMTA had received approximately
300 Sellers’ Participation Forms from medallion holders expressing a desire to participate
in the Pilot Program. Upon receipt of the forms, SFMTA staff screened the forms to
determine which applicants met the age requirement, disability requirement, or both
requirements to be eligible to participate in the Pilot Program. Following the completion
of the screening process, on or about June 9, 2010, the SFMTA sent “Commitment to Sell
Agreements” to the medallion holders who it had determined were eligible to participate
in the Pilot Program. The SFMTA did not send a “Commitment to Sell Agreement” to
Yesson.
           On August 11, 2010, the SFMTA wrote Yesson rejecting her request to
participate in the Pilot Program and explaining its view that “[y]our father’s interest in
Medallion #T-291, which consisted of his right and duty to operate the medallion,
expired upon his death. If, prior to his death, your father was eligible to sell his
Medallion under the Pilot Program by virtue of either age or disability, that eligibility
was also extinguished by his death” and his interest in the medallion “is not part of his
estate.”
       In August 2010, the first sale of a medallion under the Pilot Program occurred.
Yellow Cab Company returned Medallion T-291 to SFMTA for reissuance in February


                                              5
2011. SFMTA did not sell the medallion or otherwise use it in the Pilot Program.
Rather, on March 11, 2011, it reissued the medallion to the next qualified applicant at the
top of the waiting list, who paid SFMTA only the standard $1,600 processing fee.
       On May 17, 2011, Yesson filed a claim against the City, alleging she had the right
to sell Medallion T-291. The City rejected her claim on June 22, 2011. On September 2,
2011, Yesson filed the underlying petition in the Sonoma County Superior Court, seeking
an order determining ownership of disputed trust property and for damages, restitution,
and imposition of a constructive trust.
       In her petition, Yesson asserted the 96-year-old Enrico was eligible to participate
in the Pilot Program when it passed on February 26, 2010, and from that date forward
was qualified to sell his medallion pursuant to the provisions of the amended
Transportation Code. She asserted he wished to do so and that he died after adoption of
the Pilot Program, but before SFMTA promulgated formal procedures for qualified
medallion holders to notify SFMTA of their eligibility and intention to sell. Yesson
argued below, as she does here, that upon his death and pursuant to his will, Enrico’s
personal property, including the medallion and the right to sell it, became the property of
his trust. She sought an order determining that title to the medallion was vested in her as
trustee and requiring SFMTA to pay her $200,000, the amount a medallion holder would
net by selling a medallion through the Pilot Program (the medallion sale value of
$250,000, less a 15% Medallion Sale transfer fee and a 5% driver fund transfer fee).
       The Sonoma County Superior Court denied the petition, finding: “Beginning in
1978, decedent’s taxi medallion was at all times owned by the City and County of San
Francisco; the medallion was not, and never could be, property of the decedent or of his
estate or trust. Furthermore, the SFMTA did not confer a vested or alienable property
right upon the decedent to sell his medallion through the Pilot Program, and, a fortiori, no
such right could be transferred to the decedent’s estate or trust.” It described Yesson’s
claim as “ ‘an attempt to cobble together a property interest where none exists.’ ” The
court also found “persuasive” SFMTA’s argument that Resolution No. 10-029 did not
take effect until after Enrico’s death, but the court “prefer[red] to decide this case on


                                              6
settled principles of the law of inheritance.” The court concluded, “Had the decedent
survived a little longer, he likely could have benefitted from the Pilot Program. His
inability to so benefit was due to unfortunate timing. It is not uncommon that the timing
of changes in laws and regulations sometimes determines people’s fortunes, yet bad
timing establishes neither a denial of constitutional due process nor a cause of action for
legal or equitable relief.”
        This timely appeal followed.
                                       DISCUSSION
A. Standard of Review
        As the parties here agree, the case was tried below on stipulated facts and so we
apply the de novo standard of review. (Crocker National Bank v. City and County of San
Francisco (1989) 49 Cal.3d 881, 888; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428,
437.)
        We agree with the initial argument made by SFMTA that adoption of Resolution
No. 10-029, establishing the Pilot Program and amending the Transportation Code was a
legislative act, subject to referendum. Therefore, Resolution No. 10-029 took effect 31
days after adoption of the resolution and five days after Enrico’s death. Consequently,
whether or not the resolution created any property rights—and we do not suggest that it
did—Enrico was not possessed of any such rights at the time he died.
B. Referendum
        Under both the California Constitution and the Charter of the City and County of
San Francisco, the initiative and referendum are powers reserved by the people. (Cal.
Const., art. II, § 9; S.F. City Charter, § 14.102.)3 “The referendum is the means by which


        3
        “[C]harter cities cannot deny their citizens the referendum powers reserved in the
California Constitution, although charters may properly reserve broader referendum
powers to voters. ‘ “ ‘The constitutional reservation goes to the full extent expressed by
its language. If the charter differs from the constitution in any respect it does not thereby
diminish the powers reserved by the constitution. On the other hand, if the powers
reserved by the charter exceed those reserved in the constitution the effect of the charter
would be to give to the people the additional powers there described.’ [Citations.] In

                                              7
the electorate is entitled, as a power reserved by it under our state Constitution, to
approve or reject measures passed by a legislative body. (Cal. Const., art. II, §§ 9, subd.
(a), 11 & art. IV, § 1; Associated Home Builders etc., Inc. v. City of Livermore (1976) 18
Cal.3d 582, 591.)” (Empire Waste Management v. Town of Windsor (1998) 67
Cal.App.4th 714, 717 (Empire Waste); Lindelli v. Town of San Anselmo (2003) 111
Cal.App.4th 1099, 1108 (Lindelli).) “The initiative and referendum are not rights
‘granted the people, but . . . power[s] reserved by them. Declaring it “the duty of the
courts to jealously guard this right of the people” [citation], the courts have described the
initiative and referendum as articulating “one of the most precious rights of our
democratic process” [citation]. “[I]t has long been our judicial policy to apply a liberal
construction to this power wherever it is challenged in order that the right not be
improperly annulled. If doubts can reasonably be resolved in favor of the use of this
reserve power, courts will preserve it.” ’ [Citations.]” (Rossi v. Brown (1995) 9 Cal.4th
688, 695; see Lindelli, supra, 111 Cal.App.4th at p. 1109.)
       “An essential component of the referendum power is the ability to stay legislation
until voters have had the opportunity to approve or reject it. With limited exceptions,
every municipal ordinance is subject to an automatic 30-day stay before it becomes
effective. ([Elections Code,] § 9235.) During that period, any qualified registered voter
may circulate a referendum petition challenging the ordinance. ([Elections Code,]
§ 9237.) Provided that the requisite number of signatures is obtained, ‘the effective date
of the ordinance shall be suspended, and the legislative body shall reconsider the
ordinance.’ (Ibid.)” (Lindelli, supra, 111 Cal.App.4th at p. 1109.) Section 14.102 of the
San Francisco Charter similarly provides for the referendum power to apply to ordinances
adopted by the City.



other words, as between the provisions of the Constitution and the provisions of a city
charter, those which reserve the greater or more extensive referendum power in the
people will govern.” ’ [Citations.]” (Rubalcava v. Martinez (2007) 158 Cal.App.4th 563,
571; see also 38 Cal.Jur.3d (Aug. 2013 update) Initiative and Referendum, § 50, “Charter
cities—Manner of exercise of power,” fns. omitted.)

                                              8
        As explained in Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765
(Midway Orchards), “The power of referendum is simply not the power to repeal a
legislative act . . . . Under current article II, section 9 [of the state Constitution], ‘The
referendum is the power of the electors to approve or reject statutes. . . .’ The power is
the same as the Legislature’s approval of a bill. [Citation.] The power is to determine
whether a legislative act should become law. [Citation.] It is not to determine whether a
legislative act, once effective, should be repealed. [¶] In accord with this view of the
referendum power, neither state statutes nor local ordinances subject to referendum go
into effect during the time permitted for the filing of a referendum petition. [Citations.]
Thus, ‘A prime purpose of deferment of the effective date of ordinances is to preserve the
right of referendum.’ [Citation.]” (Id. at pp. 780–781.)
        Moreover, “it is well established that any legislative act may be . . . subject to
referendum, regardless of whether that act is denominated an ‘ordinance’ or
‘resolution.’ ” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 787, fn. 9; accord,
Midway Orchards, supra, 220 Cal.App.3d at p. 777.) “Resolutions subject to
referendum, like ordinances, are not effective until 30 days from the date of their
enactment[.]” (Midway Orchards at p. 779.) A legislative act subject to referendum
cannot be effective before the power of referendum can be exercised. (Id. at pp. 781–
782.)
        We recognize that resolutions ordinarily take effect immediately and that many
administrative acts not subject to referendum are undertaken by resolution and are
effective upon passage according to the usual rule. (Midway Orchards, supra, 220
Cal.App.3d at p. 782.) The determinative question then, is whether Resolution No. 10-
029 amending the Transportation Code and enacting the Pilot Program was a legislative
act and so subject to referendum as claimed by SFMTA or was an administrative action
as claimed by Yesson.
C. Legislative Act
        “A referendum may review only legislative decisions, but not matters that are
strictly executive or administrative. [Citation.]” (Empire Waste, supra, 67 Cal.App.4th


                                                9
at p. 717, fn. 1; see Lindelli, supra, 111 Cal.App.4th at pp. 1112–1113; see Sacks v. City
of Oakland (2010) 190 Cal.App.4th 1070, 1090.) “Under the most frequently stated
description of the line between legislative and administrative/executive acts, ‘ “[a]cts
constituting a declaration of public purpose, and making provisions for ways and means
of its accomplishment, may be generally classified as calling for the exercise of
legislative power. Acts which are to be deemed as acts of administration, and classed
among those governmental powers properly assigned to the executive department, are
those which are necessary to be done to carry out legislative policies and purposes
already declared by the legislative body, or such as are devolved upon it by the organic
law of its existence.” [¶] . . . “Again it has been said: ‘The power to be exercised is
legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative
in its nature if it merely pursues a plan already adopted by the legislative body itself, or
some power superior to it.’” [Citation.]’ [Citation.]” (Lindelli, supra, 111 Cal.App.4th at
p. 1113; see Sacks v. City of Oakland, supra, 190 Cal.App.4th at p. 1090; Pettye v. City
and County of San Francisco (2004) 118 Cal.App.4th 233, 241.)
       SFMTA’s adoption of the Pilot Program has the earmarks of a legislative act, as
the resolution declared its public purpose and outlined the ways and means of its
accomplishment. We agree with SFMTA that the Pilot Program prescribed a new policy
or plan for regulating the system of permitting taxi service in the City. The newly
enacted provisions of the Transportation Code enacted by Resolution No. 10-029, set out
a new course for the legal treatment of taxi medallions. For the first time in decades,
SFMTA would allow certain medallions to be sold. In the trial court, Yesson herself
characterized the SFMTA Board as having “created a sea-change in the longstanding
Proposition K assumption that taxi medallions were non-transferable City property.” On
appeal, she asserts that medallion ownership “changed dramatically” with the adoption of
Resolution No. 10-029, amending the City’s Transportation Code by adding section
1109, subdivision (e) creating the Pilot Program.




                                              10
       In determining whether Resolution No. 10-029 was a legislative act by SFMTA,
we refer to the above description of the line between legislative and administrative acts
and to the following:
       It is well established that “ ‘[t]he amendment of a legislative act is itself a
legislative act. The power to legislate includes by necessary implication the power to
amend existing legislation.” (City of Sausalito v. County of Marin (1970) 12 Cal.App.3d
550, 563–564; 58 Cal.Jur.3d (2013) Statutes § 61.) Here, the initial adoption of
Proposition K through an initiative of the people of the City, was unquestionably a
legislative act. (See O’Connor v. Superior Court (1979) 90 Cal.App.3d 107, 110, 113–
114 [upholding Proposition K as an “initiative ordinance” against constitutional
challenges].) SFMTA’s amendment of the Transportation Code, (the codification of
Proposition K), as it was empowered to do by Proposition A, is a strong indication that
the amendment was a legislative act according to this rule.
       “[A]dministrative agencies ‘ “may have executive, administrative, investigative,
legislative or adjudicative powers.” ’ (Traub v. Board of Retirement (1983) 34 Cal.3d
793, 799, fn. 3, italics added.)” (Pettye v. City and County of San Francisco, supra, 118
Cal.App.4th at p. 244 [San Francisco proposition that required city to replace general
assistance with in-kind benefits for housing, utilities, and meals was a legislative act].)
SFMTA exercises both legislative and administrative powers.
       Nor does the interim or temporary nature of a program change the legislative
character of the decision to enact it. (Lindelli, supra, 111 Cal.App.4th at p. 1113
[legislative body’s approval of one-year “interim contract” was a legislative act, subject
to referendum, as it involved the decision in the first instance of which private entity was
best suited to provide services for the duration of the contract].) In this case, the decision
to adopt the short-term Pilot Program involved the same initial policy decision that would
qualify a long-term taxi medallion reform program as a legislative act, subject to the
referendum process. (See ibid.)
       Any doubts about whether Resolution No. 10-029, authorizing the medallion sales
Pilot Program was a legislative act, would be set to rest by the “Rules of Order” adopted


                                              11
by the SFMTA’s Board in January 2009, more than a year before the resolution
amending the Transportation Code and enacting the Pilot Program was adopted. Article
8, section 1 of the “Rules of Order” provides: “Article 8 – LEGISLATIVE PROCESS
[¶] Section 1. Effective Date. Resolutions that adopt provisions of the City’s
Transportation Code relating to parking, traffic, and taxi service shall go into effect at the
beginning of the 31st day after approval if no referendum petition is filed. The foregoing
rule shall not affect actions of the board to approve contracts, budgets, departmental
policies and other matters that do not amend the San Francisco Transportation Code.”
(Added January 6, 2009.)
       By adopting this section of its Rules of Order, the Board affirmatively recognized
and made clear its obligation with respect to the reserved referendum power of local
voters. Even though the SFMTA Board cannot enact ordinances (that power being
reserved to the Board of Supervisors under the City Charter), the SFMTA Board was
empowered by Proposition A, codified at section 8A.101, subdivision (b) of the City
Charter, to enact measures that override previous City ordinances concerning taxi
service.4 When exercised, such powers are legislative in nature.


       4
          Section 8A.101, subdivision (b) of the San Francisco Charter provides in relevant
part: “Once adopted, Agency regulations shall thereafter supersede all previously
adopted ordinances governing motor vehicles for hire that conflict with or duplicate such
regulations.”
        At oral argument, Yesson for the first time argued that the only legislative
authority granted to SFMTA by the San Francisco Charter was limited to that
encompassed in Charter section 8A.102, subdivision (b) 7 and 8.
        Subsection 7 provides in part that SFMTA has “exclusive authority to adopt
regulations that control the flow and direction of motor vehicle, bicycle and pedestrian
traffic . . . .” (Charter § 8A102, subd. (b) 7.) Subsection 8 provides in part that SFMTA
has “exclusive authority to adopt regulations limiting parking, stopping, standing or
loading as provided by state law . . . .” (Charter § 8A.102, subd. (b) 8.) Both subsections
also state that “Notwithstanding the authority established in [that subsection] to the extent
state law contemplates that any Agency action authorized by [the subsection] be
effectuated by ordinance, such action shall be effectuated by resolution of the Board of
Directors” and “shall be subject to referendum . . . .” (Charter § 8A102, subd. (b) 7(iv)
and 8(iii).) These subsections appear aimed at ensuring the right of referendum where

                                             12
D. Yesson’s arguments
       Yesson contends the action taken by the SFMTA Board in adopting Resolution
No. 10-029 was wholly administrative and, therefore, was effective immediately upon its
adoption.5 She points out that resolutions ordinarily become effective immediately
(Midway Orchards, supra, 220 Cal.App.3d at pp. 781–782) and asserts that the resolution
merely implemented several pre-existing San Francisco Charter provisions. Those
provisions are identified by Yesson as found in “Article VIIIA: The Municipal
Transportation Agency” and are set forth in the margin.6 Yesson contends that the goals


state law requires the type of action taken by the SFMTA Board to be taken by ordinance,
but the Board acts by resolution.
        Nothing in these subsections persuade us that SFMTA does not act legislatively
when adopting amendments to the Transportation Code that, as in this case, establish a
new policy or plan. If anything, these provisions provide further support for the
proposition that SFMTA has both legislative and administrative powers and that the right
of referendum is applicable to legislative actions taken by resolution of the SFMTA
Board.
       5
         Yesson initially argued her position was supported by the “Preface to the San
Francisco Transportation Code,” which states in part that “Users should note that the
operative date of an ordinance may be later than the effective date of the ordinance. A
delayed operative date will be noted in the ordinance.” (Italics added.) As SFMTA
pointed out in its respondent’s brief and as Yesson recognizes in her appellant’s reply
brief, the provision is irrelevant here as it speaks to ordinances, whereas Resolution No.
10-029 was a resolution. Furthermore, there is a distinction between a measure’s
“operative” date—the date the legislative body intends a restriction it has enacted to
begin to bind the restricted entities—and its “effective date” the date on which the
measure, as a legal enactment, becomes law. That the effective date of the resolution, if
subject to referendum, was 31 days after its enactment does not mean there was any
“delayed operative date.”
       6
          Section 8A.100. Preamble.: “(a) An effective, efficient, and safe transportation
system is vital for San Francisco to achieve its goals for quality of life, environmental
sustainability, public health, social justice, and economic growth. . . .” Yesson points to
items two items found in subdivision (c) of the Preamble as particularly relating to the
policy of financial accountability. “(c) Specifically, San Francisco residents require: [¶] .
. . [¶] 6. Responsive, efficient and accountable management; [¶] . . .[¶] 12. A well-
managed and well-coordinated transportation system that contributes to a livable urban
environment.”

                                             13
and objectives identified by the SFMTA staff report proposing the Pilot Program describe
the stated goals and objectives in language similar to that found in the Charter’s article
VIIIA.100 (“Preamble”) and in its article VIIIA.115 (“Transit First Policy”). 7


       Yesson also refers to several provisions of the City Charter, section 8A.115 –
“Transit-First Policy”:
       “The following principles shall constitute the City and County’s transit-first policy
and shall be incorporated into the General Plan of the City and County. All officers,
boards, commissions and departments shall implement these principles in conducting the
City and County’s affairs:
       “1. To ensure quality of life and economic health in San Francisco, the primary
objective of the transportation system must be the safe and efficient movement of people
and goods.
       “2. Public transit, including taxis and vanpools, is an economically and
environmentally sound alternative to transportation by individual automobiles.
       “3. Decisions regarding the use of limited public street and sidewalk space shall
encourage the use of public rights of way by pedestrians, bicyclists, and public transit,
and shall strive to reduce traffic and improve public health and safety.
       “[¶] . . .[¶]
       “10. The City and County shall encourage innovative solutions to meet public
transportation needs wherever possible and where the provision of such service will not
adversely affect the service provided by the Municipal Railway.”
       7
         Yesson identifies the following “Goals” and “Objectives” of the Pilot Program,
set forth in the staff report proposing the program, that she maintains indicate the
program was an administrative program designed to carry out the Charter provisions:
        “Goal 1: Customer Focus: To provide safe, accessible, clean, environmentally
sustainable service and encourage the use of auto-alternative modes through the Transit
First Policy.
               “ Objective 1.1: Improve safety and security across all modes of
transportation. [¶] . . .[¶]
        “Goal 3: External Affairs/Community Relations: To improve the customer
experience, community value, and enhance the image of the SFMTA, as well as ensure
SFMTA is a leader in the industry.
               “Objective 3.1: Improve economic vitality by growing relationships with
businesses, community and stakeholder groups. [¶] . . .[¶]
        “Goal 4: Financial Capacity: To ensure financial stability and effective resource
utilization.
               “Objective 4.1: Increase revenue by 20 percent or more by 2012 by
improving collections and identifying new sources.”


                                             14
       It is not surprising that the general goals and objectives of the Pilot Program, such
as providing safe, environmentally sustainable and economically feasible alternatives to
individual automobile transportation, would mirror the even more general and lofty goals
and policies of the “Municipal Transit Agency” article of the City Charter. It is not
simply the statement of goals and objectives of a resolution that determines whether it
was the product of a legislative act. Rather, it is what the resolution actually does. The
“Transit First Policy” contained in the City Charter mentions taxis only in the context of
including them as “public transit” and an “economically and environmentally sound
alternative to transportation by individual automobiles.” It does not mention permits or
medallions at all. Yesson cannot point to any resolution or ordinance before SFMTA
Resolution No. 10-029 that enacted a policy of allowing medallion sales. Through this
resolution and subsequent ones, SFMTA made new law. This resolution did not merely
implement previously adopted policies, but created a wholly new policy and plan of
allowing qualified medallion holders to sell their medallions. As SFMTA points out,
there are many very different, and in some cases diametrically opposed, ways in which
SFMTA might try to further these general goals. For instance, it could make medallions
entirely non-transferable; it could allow all medallions to be sold in a free market; it
could, as it did, allow specified taxi medallions held by eligible persons to be sold for
consideration to qualified purchasers. The choice among these alternatives was a
significant policy choice. Acts declaring such new public policy are the essence of the
exercise of legislative power. (Pettye v. City and County of San Francisco, supra, 118
Cal.App.4th at pp. 241, 244.) The adoption of a dramatically different and wholly new
policy of allowing limited medallion sales was a legislative act and, therefore, was
subject to the people’s right of referendum.
       Yesson contends that only where a resolution is passed with all the formalities of
an ordinance does it become a legislative act subject to referendum and the 30-day
waiting period, rather than an administrative act. However, her sole authority, City of
Sausalito v. County of Marin, supra, 12 Cal.App.3d at pp. 565–566 [holding that
although a resolution adopting a master plan was legislative in substance, it was invalid


                                               15
in form where it was not executed by ordinance], did not address the circumstances under
which resolutions are subject to referendum. Moreover, her argument is counter to
established authority holding, “any legislative act may be . . . subject to referendum,
regardless of whether that act is denominated an ‘ordinance’ or ‘resolution.’ ” (DeVita v.
County of Napa, supra, 9 Cal.4th 763, 787, fn. 9; accord, Midway Orchards, supra, 220
Cal.App.3d at p. 777.) Nor could a legislative body insulate its enactments from
referendum by clothing them as less formal resolutions. (Midway Orchards, supra, 220
Cal.App.3d at p. 782.)
       Yesson maintains that the language of the resolution itself indicates it was
intended to be effective immediately, as it stated, “the Board adopts the Taxi Medallion
Sales Pilot Program,” and “that any Medallion offered to an applicant on the waiting list
after February 16, 2010 shall be counted toward the number of Medallions offered to
Waiting List applicants pursuant to the . . . Pilot Program.” She urges we may infer from
this language that SFMTA staff anticipated the Pilot Program commenced upon its
adoption at the February 26, 2010 meeting. She finally notes the SFMTA secretary’s
certification the resolution was “adopted” February 26, 2010. Nothing in this language
indicates to us that adoption of the resolution was administrative rather than legislative in
nature or that it was intended to be effective immediately. The resolution appears to
simply use the date February 16 as a convenient benchmark for counting medallions to be
issued according to the old, Proposition K-based system, to indicate the old system was
not being completely eliminated, but remained in place while the Pilot Program was
being implemented. Nor does the certification that the resolution was “adopted” on
February 26 add anything to the question whether such adoption was a legislative act
subject to referendum.
       Nor are we persuaded that the action of the SFMTA Board was not “legislative”
by language in the staff report for the February 26, 2010 board meeting at which the Pilot
Program was adopted or the March brochure referencing the board’s adoption of the Pilot
Program on February 26, and speaking of “regulations that have already been adopted”
and posted on a website. These references by staff to “adoption” dates do not suggest


                                             16
staff was addressing the issue of whether the resolution was subject to a 30-day
referendum period. Moreover, if the nature of the action was “legislative,” the California
Constitution mandated the 30-day referendum period, during which the resolution could
not take effect. Neither SFMTA Board or the agency staff could avoid the referendum
period, even had they wished to do so, as the referendum right is guaranteed by the
California Constitution and by the City Charter. (See Midway Orchards, supra, 220
Cal.App.3d at pp. 778–779.)
       Yesson argues the measures contained in Resolution No. 10-029 “were simply
ratifications of interim administrative proposals made by SFMTA staff and were not
subject to referendum.” We disagree. That staff previously had made recommendations
for such a policy shift is irrelevant to whether the particular act is legislative or
administrative in nature. Staff does not have the ability to make law. Only the legislative
body can do so. Yesson’s argument suggests that a legislative body could insulate its
actions from referendum by ensuring a staff recommendation preceded the change in
policy or plan. That is clearly not the case. (Midway Orchards, supra, 220 Cal.App.3d at
p. 782.)
       We conclude the trial court did not err in determining that Enrico never acquired
the right to sell taxi medallion T-291 and in denying Yesson’s petition.
                                        DISPOSITION
       The order denying Yesson’s petition for an order determining ownership of
disputed trust property and for additional relief is affirmed. The City is awarded its costs
in connection with this appeal.
                                                    _________________________
                                                    Kline, P.J.

We concur:
_________________________
Haerle, J.
_________________________
Richman, J.




                                               17
Filed 2/26/14


                           CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION TWO


TINA YESSON,                                        A136527
        Plaintiff and Appellant,
                                                    (Sonoma County Super. Ct.
v.                                                  No. SPR83944)
SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY,                            ORDER GRANTING MOTION FOR
                                                  JUDICIAL NOTICE IN SUPPORT OF
        Defendant and Respondent.                 PETITION FOR REHEARING,
                                                  DENYING PETITION FOR
                                                  REHEARING, AND CERTIFYING
                                                  OPINION FOR PUBLICATION



THE COURT:
        The opinion in the above-entitled matter was filed on January 30, 2014, and was
not certified for publication in the Official Reports.
        Appellant’s motion for judicial notice in support of petition for rehearing is
granted. Appellant’s petition for rehearing is denied.
        For good cause, respondent’s request for publication of the opinion filed in this
matter on January 30, 2014 is granted.
        Pursuant to California Rules of Court, rules 8.1105 and 8.1120, the opinion in the
above-entitled matter is ordered certified for publication in the Official Reports.


Dated: __________________            ________________________________
                                          Kline, P.J.



                                              1
Trial Court:                Sonoma County Superior Court

Trial Judge:                Hon. Mark Tansil

Attorney for Appellant:     Law Office of Steven Schoonover
                            Steven Thomas Schoonover

Attorneys for Respondent:   Dennis J. Herrera, City Attorney
                            City and County of San Francisco
                            Wayne Kessler Snodgrass, Deputy City Attorney




                                    2
