NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

McKINSTER, Acting P. J.

Plaintiff and appellant John Burkett1 (hereafter plaintiff) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend a demurrer to his first amended complaint. His complaint sought a declaration that defendant and respondent Elsinore Valley Municipal Water District (hereafter defendant) violated article XIII D, section 6, subdivision (b), of the California Constitution, enacted via Proposition 218, the Right to Vote on Taxes Act, by imposing drought-related surcharges and penalties which exceeded the funds required to provide water services and exceeded the proportional cost of water service attributable to each parcel of land receiving water services. Defendant asserts that the complaint is now moot, because the recent drought emergency ended and it is no longer imposing the surcharges and penalties. We agree that the complaint is moot, and we will dismiss the appeal.

BACKGROUND

In 1996, the electorate approved Proposition 218, the Right to Vote on Taxes Act, which added articles XIII C and XIII D to the California Constitution, effective July 1, 1997. (Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 415.) Article XIII D, section 6, subdivision (b), provides:

In February 2016, plaintiff filed a first amended complaint alleging that defendant violated article XIII D, section 6, by adopting a budget resolution that provided for drought surcharges to be imposed upon all ratepayers and additional drought penalties to be imposed on ratepayers who exceeded their water budget during droughts at stages 3, 4, and 5. As of the date of filing the first amended complaint, plaintiff alleged that defendant had declared a "stage 4a" drought, was imposing surcharges of approximately 32 percent above base commodity rates on all ratepayers, and was imposing drought penalties on ratepayers who exceeded their water budget since August 1, 2015, the effective date of the budget resolution. Plaintiff, who alleged that he is a ratepayer in defendant's district, alleged that the surcharges and penalties violate article XIII D, section 6, because revenues derived from the fees exceed the fund required to provide water services to ratepayers, and because the fees exceed the proportional cost of water service attributable to each parcel.

Defendant's demurrer to the first amended complaint was sustained without leave to amend and a judgment of dismissal was filed on May 25, 2016. On July 21, 2016, plaintiff gave notice of entry of a ruling denying his motion for a new trial, and on August 19, 2016, plaintiff filed a timely notice of appeal.

In its respondent's brief, defendant asserted that the complaint had been rendered moot because on March 9, 2017, defendant adopted its resolution No. 17-03-01, declaring the drought to be at stage 2, thus putting an end to drought surcharges and penalties, at least for the time being, and because on April 7, 2017, Governor Edmond G. Brown, Jr., issued Executive Order No. B-40-17, declaring an end to the drought state of emergency in all counties except Fresno, Kings, Tulare and Tuolumne.2

LEGAL ANALYSIS

PLAINTIFF'S CLAIM IS MOOT

As a general rule, a court's duty "`"is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."'" (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Thus, an "`action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events.'" (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866; accord, Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans United) ["An appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief."].) One circumstance in which an appeal can be mooted by subsequent events is where the repeal or expiration of a law or regulation moots a pending challenge to that law or regulation. (See, e.g., Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 133-134 [repeal of Department of Agriculture regulation while case on appeal moots challenge to that regulation]; Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 631, 636 [repeal of statute concerning challenged judicial district moots case].)

A court may nevertheless exercise discretion to decide moot issues under some circumstances: (1) when the case presents an issue of broad public interest that is likely to recur; (2) when there may be a recurrence of the controversy between the parties and (3) when a material question remains for the court's determination. (Cucamongans United, supra, 82 Cal.App.4th at pp. 479-480.) Here, although there is the possibility that the issue will recur, it is also possible that defendant will amend or repeal the challenged provision before stage 3 or greater drought conditions reoccur. Consequently, we decline to exercise our discretion to address the issue at this juncture.

DISPOSITION

The appeal is dismissed. The parties are to bear their own costs on appeal.

MILLER, J. and CODRINGTON, J., concurs.