Judge: Barbara M. Scheper, Case: 23STCV25587, Date: 2024-01-16 Tentative Ruling
Case Number: 23STCV25587 Hearing Date: January 16, 2024 Dept: 30
Calendar
No.
Gutierrez vs. City of Burbank, et. al.,
Case No. 23STCV25587
Tentative Ruling re:
Defendant’s Demurrer to Complaint
Defendant City of Burbank (the City)
demurs to the Complaint of Plaintiff Nicholas Gutierrez (Plaintiff). The
demurrer is sustained.
In reviewing
the legal sufficiency of a complaint against a demurrer, a court will treat the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions, or conclusions of law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank);
C & H Foods Co. v. Hartford Ins. Co.
(1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies
only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75
Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is
tested against a general demurrer are well settled. We not only treat the
demurrer as admitting all material facts properly pleaded, but also give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context.” (Guclimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For
purposes of ruling on a demurrer, the complaint must be construed liberally by
drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling
on a demurrer, the Court may only consider the complaint’s allegations or
matters which may be judicially noticed. (Blank,
supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic
evidence or judge the credibility of the allegations plead or the difficulty a
plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A
demurrer is properly sustained only when the complaint, liberally construed,
fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121
Cal.App.4th 574, 578.)
The Complaint alleges that the City’s method
of at-large elections for its City Council violates the California Voting
Rights Act (CVRA) and Equal Protection Clause of the California Constitution.
(Comp. ¶¶ 5-7.) Plaintiff seeks injunctive relief enjoining the City from
further use of at-large elections and requiring the City to design and
implement district-based elections. (Comp. ¶ 7.)
Plaintiff is a registered and eligible
voter in the City. (Comp. ¶ 11.) The City Council is a five-member governmental
body responsible for the operation of the City. (Comp. ¶ 18.) The Council is
elected in at-large elections on a staggered basis; every two years, the
electorate elects two or three councilmembers who serve four-year terms. (Comp.
¶ 20.) The Complaint presents a list of City Council members from the past two
decades, and next to each, “an AI-generated assumption of the origin of their
last name.” (Comp. ¶ 21.) The apparent import of this is that the
councilmembers are likely all of European descent, except for Zizette Mullins,
who “[c]ould be various origins.” (Comp. ¶ 21.)
Plaintiff alleges that the Council began
to consider transitioning to district-based elections in April 2022, and by
January 2023 adopted a Resolution of Intent regarding the transition. (Comp. ¶¶
34-36.) However, after conducting a number of public hearings and forums, the
Council has delayed implementation of the plans for district-based elections,
allegedly because “certain members of the Burbank City Council are worried that
district elections ‘could mean the end of the line for some of the councilmembers.’
” (Comp. ¶ 49.)
The CVRA (Elec. Code § 14025, et
seq.) prohibits “[a]n at-large method of election [that is] imposed or
applied in a manner that impairs the ability of a protected class to elect
candidates of its choice or its ability to influence the outcome of an
election, as a result of the dilution or the abridgment of the rights of voters
who are members of a protected class, as defined pursuant to Section 14026.” (Elec. Code § 14027.) The
definition of protected class is derived from the federal Voting Rights Act of
1965, 52 U.S.C. § 10301 et seq. (Elec. Code § 14026, subd. (d).) Like
the federal Voting Rights Act, the CVRA “require[s] a plaintiff to show
racially polarized voting — i.e., that the protected class members vote as a
politically cohesive unit, while the majority votes ‘sufficiently as a bloc
usually to defeat’ the protected class's preferred candidate,” though the CVRA “make[s] it easier to successfully
challenge at-large districts” in important respects. (Pico Neighborhood
Assn. v. City of Santa Monica (2023) 15 Cal.5th 292, 306.) “A court
presented with a dilution claim should undertake a searching evaluation of the
totality of the facts and circumstances (see, e.g., Elec. Code, § 14028, subd.
(e)), including the characteristics of the specific locality, its electoral
history, and ‘an intensely local appraisal of the design and impact of the
contested electoral mechanisms’ as well as the design and impact of the
potential alternative electoral system.” (Id. at 308.)
The Court finds that Plaintiff’s CVRA cause
of action has not been adequately pled because Plaintiff fails to allege which
protected class is the subject of his claim. The Complaint is unclear as to
which protected class has been affected by the alleged voter dilution; for
instance, the Complaint alleges that “Burbank also has a high concentration of
Asian residents” and “none of the aforementioned Burbank City Council members
were born with Asian surnames. (Comp. ¶ 23), but next alleges, “Plaintiff is
Latino. For the purposes of explaining the serious challenges that residents face
in selecting their desired candidates, to the best of Plaintiff’s knowledge,
none of the aforementioned elected Burbank City Council members have Armenian
surnames.” (Comp. ¶ 24.) Although Plaintiff generally alleges that “[r]acially
polarized voting exists within the City of Burbank,” “[v]oters from protected
classes are harmed by racially polarized voting,” and “there is evidence of
racially polarized voting and vote dilution” on specific ballot measures since
2008 (Comp. ¶¶ 27, 30-31), he does not specify which protected class has been harmed
by the City’s alleged racially polarized voting.
Without specifying the protected class that
has been harmed, Plaintiff’s allegations are insufficient. (Compare Pico
Neighborhood, 15 Cal.5th at 308 [alleging “that the City's at-large
method of electing its city council unlawfully impaired the ability of Latino
voters to elect their preferred candidates”];
Yumori-Kaku v. City of Santa Clara (2020) 59 Cal.App.5th 385, 397 [alleging “that
racially polarized voting between the electoral choices of Asian American
voters and those of non-Asian American voters prevented Asian American voters
from electing candidates of their choice”]; Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 666 [alleging voter dilution of
Latino voters].) Accordingly, the
demurrer is sustained as to the first cause of action.
Plaintiff has presented no argument
regarding the second cause of action for violation of the Equal Protection
Clause in the California Constitution, and so the demurrer is also sustained as
to that claim.