Filed 1/5/17

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



CAPE CONCORD HOMEOWNERS                             D069620
ASSOCIATION,

        Plaintiff and Appellant,
                                                    (Super. Ct. No. 37-2013-00055798-
        v.                                                          CU-WM-NC)

CITY OF ESCONDIDO,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County, Jacqueline M.

Stern, Judge. Affirmed.

        Peters & Freedman and Zachary R. Smith for Plaintiff and Appellant.

        Jeffrey R. Epp, City Attorney, Michael R. McGuinness, Assistant City Attorney,

and Allegra D. Frost, Deputy City Attorney, for Defendant and Respondent.

        California law requires a local agency to refund sewer service fees paid for which

no sewer services were provided. (Gov. Code,1 § 53082, subd. (b).) Where a person

paid such fees and is still residing at the same location, the local agency is required to


1       All statutory references are to the Government Code unless otherwise specified.
refund such fees "in their entirety" upon determining "the premises is not connected to

the sewer system." (§ 53082, subd. (c).)

       Here, from 1980 through 2012, the City of Escondido (City) supplied water

through a single water meter to a residential condominium homeowners association and

starting in 2006 billed for sewer services per gallon of water that flowed through that

meter. The association used some of that water for its swimming pool and related

bathroom facilities, which are connected to the City's sewer system. However, according

to the association, upwards of 97 percent of the water was used for irrigating landscape

common areas. In 2012 the City determined those landscape areas are not connected to

the City's sewer system and at the association's request installed a separate, second water

meter to supply water exclusively to that part of the property.

       The primary issue in this case is whether, for the period of time from 2006 to

before the second water meter was installed, the homeowners association is entitled to a

refund under section 53082 of sewer service fees paid for the water used for irrigating the

common area landscaping, for which no sewer services were provided.

       We conclude section 53082 does not apply because liability for wrongfully

collecting sewer service fees under this statute does not depend on a property owner's

subjective or particular use of City-supplied water through a single water meter, but

rather on whether the premises serviced by that meter are or are not connected to the

sewer system. Here, during the period the property was supplied by a single water meter,

the premises was, in fact, connected to the City's sewer system. Accordingly, we affirm

the trial court's order denying the association's petition for a writ of mandate.

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                  FACTUAL AND PROCEDURAL BACKGROUND

       A. City Sewer Service Fees, in General

       The City operates water treatment facilities and a distribution system to deliver

water. The City's wastewater division is responsible for safely treating and disposing of

wastewater and maintains more than 360 miles of sewer lines.

       The City's municipal code provides that the owner or occupant of premises

connected to the City's sewer system "shall pay a sewer service charge." (Escondido

Mun. Code, § 22-57.)2 The amount is based on: (1) the quantity of water used, and (2)

the customer's water use classification as determined by the City. Sewer service fees are

used to acquire, construct, maintain, and operate the City's sewage facilities. (Escondido

Mun. Code, § 22-67.)

       Assuming no run-off, water used only for irrigation goes into the ground, not into

the sewer system. Escondido does not assess a sewer service fee for premises it classifies

as "[I]rrigation[-I]nstitutional" because such premises are not connected to the sewer

system.

       B. Cape Concord Homeowners Association Sewer Service Fees

       Cape Concord Homeowners Association (Cape Concord), a nonprofit mutual

benefit corporation, is the residential owners association for a common interest

development known as Cape Concord in the City. The development consists of 218


2      Escondido Municipal Code section 22-57 provides: "In addition to any and all
other fees, charges or assessments proved by the city, the owner or occupant of any
premises connected with the sewage system of the city shall pay a sewer service charge
as required by this article."
                                             3
residential units and common areas, and is divided into two phases, called Turnbridge

and Nantucket.

       The Cape Concord common areas consist of landscaping and a swimming pool

and pool house at each phase. Cape Concord uses water to irrigate the common area

landscape and supply water for the swimming pools and pool houses, which contain

showers, sinks, and toilets. An "overwhelmingly vast majority" of the water used by

Cape Concord is for irrigation.

       Before 2012 there was one water meter supplying Cape Concord water at

Turnbridge and another meter at Nantucket. From the development's inception in 1980

through 2006, the City classified Cape Concord "[C]ommercial at [S]ingle [F]amily."

Under this classification, Cape Concord paid a flat rate for sewer service, ranging from

about $14 to $32 each month.

       In 2006 the City changed Cape Concord's classification to "[C]ommercial." As a

result, the City began charging Cape Concord for sewer services based on the quantity of

water used, as measured by each of the two meters, regardless of whether the water was

used for irrigation or the pools/pool houses.

       C. The Meter Split

       In 2012 Cape Concord was having financial difficulties and was particularly

concerned about its high water bills. The July 2012 water bill, for example, exceeded

$10,000.

       At Cape Concord's request, the City inspected the property. The purpose of the

meeting was to determine whether the water meters at Cape Concord could be split to

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avoid the sewer service charge on its irrigation use. The City determined that the existing

water line at each phase could be split into two meters—one exclusively servicing the

swimming pool and pool house (which used the sewer system), and the other supplying

water exclusively for irrigating common area landscaping (which did not use the sewer

system). By splitting the meters in this manner, Cape Concord would not be assessed a

sewer fee on water used exclusively for irrigation.

       In October and November 2012, the City added a second water meter at

Turnbridge and also at Nantucket. As a result, one meter serviced water exclusively for

irrigating common area landscaping, and the other for the swimming pools and pool

houses.

       The City reclassified the meters providing irrigation as

"[I]rrigation[-I]nstitutional," a classification exempt from a sewer service fee. After the

meter split, the City did not charge Cape Concord sewer service fees for water from the

irrigation-only meters.

       In deposition testimony, Mary Unland, whom the City designated as its most

qualified person regarding the meter split, explained that irrigation-only water meters

service premises that are not connected to the City's sewer system:

          "Q: And why doesn't the irrigation classification[] get the sewer
          service charge?

          "A: Irrigation meters that are irrigation only, and that's how we
          classify them, is that they're irrigation only, are not connected to the
          City sewer system.

          "Q: Okay.


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       "A: Therefore, we don't charge them sewer.

       "Q: So the irrigation lines service property that is not connected to
       the sewer system, is that right?

       "A: That is correct. [¶] . . .

       "Q: The idea is the irrigation meter services water to property that's
       not connected to the sewer, correct?

       "A: Yes.

       "Q: Therefore, no sewer service or wastewater fee would apply,
       correct?

       "A: Correct.

       "Q: Okay. And so this meter here, 8112285, does in fact have an
       irrigation classification, correct?[3]

       "A: Now it does, irrigation only, yes. [¶] . . .

       "Q: In order to get that classification, somebody at the City must
       have determined that that water meter was servicing water to
       property for purposes that were not connected to the sewer system,
       right?

       "A: Right. [¶] . . .

       "Q: And you don't know who that was, correct?

       "A: Correct.

       "Q: But you know that determination had to be made at the time that
       that meter was classified as irrigation, correct?

       "A: Yes."




3   The City designated one of the Cape Concord irrigation-only meters No. 8112285.
                                          6
       The meter split dramatically reduced Cape Concord's water bill. Cape Concord

contends that after the meter split, 96.8 percent of the water used at Turnbridge was for

irrigation only. Based on this, Cape Concord estimated it paid $55,586.29 in sewer

service fees at Turnbridge for which City provided no sewer services.

       Cape Concord contends that after the meter split, 98.9 percent of the water used at

Nantucket was for irrigation. Assuming this same 98.9 percent ratio, Cape Concord

estimated it paid $119,589.79 in sewer service fees at Nantucket for which the City

provided no sewer services.

       D. Section 53082

       Section 53082 provides in part:

          "(a) By July 1, 1991, local agencies shall refund any sewer service
          fees collected for which no services were delivered.

          "(b) Any sewer service fees collected by a local agency from any
          person for which no service has been provided shall be refunded in
          accordance with subdivisions (c) and (d).

          "(c) In cases where a person paid fees as described in subdivision (a)
          and is still residing at the same location, it shall be the responsibility
          of the local agency, upon determination that the premises is not
          connected to the sewer system, to return fees in their entirety,
          regardless of the amount of time the fees were wrongly collected.
          For the purposes of this section, if the exact amount of the charges is
          not readily available, the amount of the refund may be calculated by
          averaging the rates paid by payers in the same classification during
          the time period in which the fees were collected.

          "(d) In cases where a person paid fees as described in subdivision (a)
          but is not still residing at the same location, the payer of the fees
          may make a claim for a refund to the agency collecting the fees.




                                              7
          "(e) No statute of limitations shall apply to claims for fees paid
          before January 1, 1992. For fees paid on or after January 1, 1992,
          claims shall be filed within 180 days of the date of payment."

       E. Petition for Writ of Mandate

       In July 2013 Cape Concord sued the City in a pleading entitled petition for writ of

mandate or, in the alternative, complaint for: (1) money pursuant to Government Code

section 53082, (2) money had and received, (3) accounting, and (4) declaratory relief.

The writ petition alleged that under section 53082, subdivisions (a), (b), and (c), the City

had a "clear, present and ministerial duty" to refund sewer service fees Cape Concord

paid for which no sewer service was provided.

       In January 2015 Cape Concord filed a motion for a writ of mandate.4 Cape

Concord argued that by splitting the water meters into irrigation and nonirrigation

classifications, the City determined the irrigation premises were not connected to the

sewer system, and the City had a ministerial obligation under section 53082, subdivision

(c), "to return [sewer] fees in their entirety, regardless of the amount of time the fees were

wrongly collected." (§ 53082, subd. (c).) Cape Concord asserted it paid the City

$175,176.08 in sewer service fees for water used exclusively for irrigation, which did not

utilize the sewer system.

       Opposing the motion, the City asserted that section 53082 only applies where "no

[sewer] services were delivered," as provided in section 53082, subdivision (a). Because



4      The Superior Court of San Diego County, Local Rules, rule 2.4.8(A) provides: "In
seeking mandamus . . . relief, it is not necessary to obtain an alternative writ . . . . The
noticed motion procedure should be used whenever possible."
                                              8
Cape Concord conceded that some portion (from 1.1 to 3.2 percent) of its total water use

was for the swimming pools and pool houses, the City argued section 53082 simply did

not apply.

       Next, the City argued that even if section 53082 applied, Cape Concord could only

recover sewer service payments made within 180 days of its "claim" for refund, as

provided in section 53082, subdivision (e).

       In reply, Cape Concord asserted that by splitting the meters the City had

recognized the irrigation premises were not connected to the sewer system, thus

triggering section 53082, subdivision (c). Cape Concord argued the 180-day limitation

period in subdivision (e) only applies to "claims" made by a nonresident under section

53082, subdivision (d). Because Cape Concord sought recovery as a resident under

section 53082, subdivision (c), it asserted the City was obligated to "return fees in their

entirety, regardless of the amount of time the fees were wrongly collected," as

subdivision (c) states.

       After conducting a hearing, the court denied the motion.5 In its written order, the

court made these findings:

             "[I]n the summer of 2012 the City determined that [Cape Concord]
             could avoid paying sewer service charges for water used for
             irrigation purposes by splitting its two water meters. . . . After the
             split, [Cape Concord] was not charged a sewer service fee for the
             [two] meters which were used solely to irrigate [Cape Concord's]
             landscape common areas. . . . [T]hese two meters were not charged
             a sewer service fee because it was determined that [Cape Concord's]


5      The hearing was unreported and the parties have not provided any substitute for a
reporter's transcript.
                                               9
           landscape common area was not connected to the City's sewer
           system."

       Next, the court determined section 53082, subdivision (c) was "triggered . . . and

required the City to refund . . . sewer service fees paid by [Cape Concord] on the

premises that were not connected to the sewer system."

       However, citing Utility Audit Co., Inc. v. City of Los Angeles (2003) 112

Cal.App.4th 950, 961 (Utility Audit), the court held the 180-day limitation period in

section 53082, subdivision (e) applied, limiting Cape Concord's recovery to sewer service

fees paid within 180 days of the filing of its "claim" on February 19, 2013. Because the

causes of action alleged in Cape Concord's alternative complaint had a longer limitation

period and therefore would afford Cape Concord a greater recovery, the court denied the

petition on the grounds Cape Concord had an adequate remedy at law.

       Later, to facilitate this appeal, the court dismissed Cape Concord's complaint at

Cape Concord's request. Cape Concord timely appealed from the order denying its

petition for writ of mandate.

                                        DISCUSSION

               I. PRINCIPLES GOVERNING WRITS OF MANDATE AND
                           THE STANDARD OF REVIEW

       Code of Civil Procedure section 1085, subdivision (a) provides a writ of mandate

"may be issued by any court to any inferior tribunal, corporation, board, or person, to

compel the performance of an act which the law specially enjoins, as a duty resulting

from an office, trust, or station . . . ." "Generally, a writ of ordinary mandate will lie

when (1) there is no plain, speedy and adequate alternative remedy, (2) the public official

                                              10
has a legal and usually ministerial duty to perform and (3) the petitioner has a clear and

beneficial right to performance." (Menefield v. Foreman (2014) 231 Cal.App.4th 211,

216-217 (Menefield).) "A ministerial duty is one that is required to be performed in a

prescribed manner under the mandate of legal authority without the exercise of discretion

or judgment." (County of San Diego v. State of California (2008) 164 Cal.App.4th 580,

593.)

        "'Thus, "[w]here a statute or ordinance clearly defines the specific duties or course

of conduct that a governing body must take, that course of conduct becomes mandatory

and eliminates any element of discretion."'" (Ellena v. Department of Ins. (2014) 230

Cal.App.4th 198, 205.) "Mandamus has long been recognized as the appropriate means

by which to challenge a government official's refusal to implement a duly enacted

legislative measure." (Morris v. Harper (2001) 94 Cal.App.4th 52, 58.)

        "When reviewing a trial court's judgment on a petition for ordinary mandate, we

apply the substantial evidence test to the trial court's findings of fact and exercise our

independent judgment on legal issues, such as the interpretation of

statutory . . . requirements." (Menefield, supra, 231 Cal.App.4th at p. 217; Mendiola v.

CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 840 ["We independently review the

construction of statutes."].)




                                              11
 II. PROPERTY SUPPLIED BY A SINGLE WATER METER IS A SINGLE "PREMISES"
AND, IF CONNECTED TO THE SEWER SYSTEM, SECTION 53082 DOES NOT APPLY

       A. Principles of Statutory Interpretation

       In determining whether section 53082 applies in this case and, if so, whether the

180-day limitation period in subdivision (e) applies to refunds sought under subdivision

(c), "our primary task is to give effect to the Legislature's intended purpose in enacting

the law." (People v. Hubbard (2016) 63 Cal.4th 378, 386 (Hubbard).) "We begin with

the statute's text, assigning the relevant terms their ordinary meaning, while also taking

account of any related provisions and the overall structure of the statutory scheme."

(Ibid.) "'"The meaning of a statute may not be determined from a single word or

sentence; the words must be construed in context, and provisions relating to the same

subject matter must be harmonized to the extent possible."'" (Association for Sensible

Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1295.)

"Where the statutory text admits of more than one reasonable interpretation, we may

consider various extrinsic aids—including the legislative history—to the extent they are

helpful in illuminating that purpose." (Hubbard, at p. 386.)

      B. Section 53082 Does Not Apply Because Sewer Service Was Provided at the
Premises

       Section 53082 applies only where an agency collects a sewer use fee "for which no

service has been provided" with respect to "premises . . . not connected to the sewer

system." (§ 53082, subds. (a), (b) & (c).) The City contends section 53082 does not

apply in this case because Cape Concord concedes sewer service was provided "at the



                                             12
subject property"—albeit for what Cape Concord estimates as only 1.1 to 3.2 percent of

its total water use.

       Section 53082 does not define "premises," and the parties do not cite, and our own

independent research has not found, any definition of "premises" in the Government

Code in general. However, as Cape Concord points out, the City municipal code

pertaining to "Wastewaters, Stormwaters, and Related Matters" defines "premises" as "a

parcel of real property or portion thereof . . . which is determined by the [C]ity to be a

single unit for purposes of receiving, using and paying for wastewater disposal service."

(Italics added.) (Escondido Mun. Code, § 22-1.)

       Applying this definition to" premises" in section 53082, subdivision (c), Cape

Concord contends that by splitting the single water meter at each phase into irrigation and

nonirrigation meters, the City necessarily determined the landscape common area was "a

portion" of the property—i.e., a "premises"—that was a single unit for purposes of

receiving sewer services. Therefore, Cape Concord asserts, section 53082, subdivision

(c) applies.

       "'Premises' has various legal meanings depending on the context and the

situation." (County of San Mateo v. Consolidated Farms, Inc. (1959) 169 Cal.App.2d

735, 738.) We disagree with Cape Concord's assertion that its municipal code definition

of "premises" necessarily applies to section 53082, a state statute. Cape Concord cites

nothing indicating the Legislature had the City municipal code in mind when it enacted

section 53082, nor that the City contemplated section 53082 when adopting the definition

of "premises" in its local ordinance.

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       Rather than looking to any particular public agency's definition of "premises" to

give meaning to that word in section 53082, we are instead required to define that word

in light of the object that statute attempts to achieve, the evil to be remedied by the

statute, the legislative history, public policy, and the statutory scheme of which the statute

is a part. (See In re Luke W. (2001) 88 Cal.App.4th 650, 655 [principles for statutory

interpretation].)

       Section 53082 was enacted in response to billing practices of the City of Los

Angeles, which beginning in 1972 assessed sewer service charges against property

owners who did not use the City's sewer system at all, but instead relied wholly on septic

tanks or Los Angeles County services. (Utility Audit, supra, 112 Cal.App.4th at p. 953.)

The problem received the Legislature's attention, which enacted section 53082 to force

municipalities to refund sewer service fees in situations where no sewer services were

delivered.

       Significantly, as enacted, the problem to be remedied involved an agency's charge

for sewer service that not only it did not provide, but it could not provide. For property

exclusively on a septic system, it does not matter how the property owner uses the city-

supplied water—none of it will go through a sewer system that is not even there. Thus,

section 53082 imposes what is essentially strict liability on a public agency that charges

sewer service fees under such circumstances because presumably, the agency knows or

should know what properties it supplies with water are serviced by its sewer system and

which are not.



                                              14
       However, from the inception of Cape Concord in 1980 until the meter split in

2012, the situation in Cape Concord's case is completely different. During that period,

each of the two phases of Cape Concord were supplied water through a single water

meter. Cape Concord alone decided how it would use that water. Some of it went to the

swimming pools and related restroom facilities—which are connected to the City's sewer

system. Cape Concord chose to use other water for irrigation that went into the ground

and not into the sewer system.

       There is no evidence in this record indicating the City ever knew, or should have

known, how Cape Concord was using its water during this period. In Cape Concord's

case, it is the user's choice, not communicated to the City, to use the bulk of the water

supply that could have gone into the sewer system for irrigation that forms the basis of its

refund claim.

       Thus, Cape Concord seeks to use the strict liability provided in section 53082 to a

set of facts significantly different from the harm the Legislature sought to remedy by that

statute. Liability under section 53082 was intended to be triggered not by the property

owner or occupier's subjective or particular use of water—something the agency cannot

control, much less know of in the ordinary course—but rather on whether the objective

features of the property itself are such that preclude any of the supplied water from

entering the sewer system.

       Accordingly, "premises" in section 53082, subdivision (c) must be defined with

respect to the existence of sewer service for the portion of property supplied by a single

water meter, not the user's choice of how to use the water supplied. Where, as here, a

                                             15
single water meter supplies water to property, that entire property is the "premises"

within the meaning of section 53082. Section 53082, subdivision (c) imposes liability

only where "the premises is not connected to the sewer system." Thus, from 1980 to

2012 (before the meter split) in this case, the City is not obligated to refund any sewer

service fees for water supplied from that meter because the premises were connected to

the sewer system. Conversely, after Cape Concord and the City split the water supply

into two meters at each phase, each of these two portions of the property is a "premises"

within the meaning of section 53082. If one of those premises is not connected to the

sewer system, then the City is prohibited from charging sewer service fees for water

delivered through that particular meter. (§ 53082, subd. (c).)

       C. The Court Reached the Correct Result

       The superior court denied Cape Concord's writ petition on the grounds section

53082 applied, but limited any recovery to sewer service fees charged within 180-days of

the date Cape Concord filed a claim. Generally, "we will affirm a judgment or order if it

is correct on any theory of law applicable to the case, even if it is right for the wrong

reasons." (Estate of Beard (1999) 71 Cal.App.4th 753, 777.) Because in this case the

court reached the correct result—denial of Cape Concord's writ petition—albeit for an

incorrect reason, we affirm.




                                              16
                                      DISPOSITION

       The order denying the petition for writ of mandate is affirmed. The City of

Escondido is entitled to costs on appeal.




                                                                              NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.




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