Judge Marcella O. Mclaughlin, Case 37-2023-00014954-CU-WM-CTL 2024-02-20 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00014954-CU-WM-CTL, Date: 2024-02-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 20, 2024

02/20/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2023-00014954-CU-WM-CTL SAN DIEGO PUBLIC LIBRARY FOUNDATION VS DIANA FUENTES IN HER CAPACITY AS SAN DIEGO INTERIM CITY CLERK [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/02/2023

A. The unopposed motion by respondent/defendant Cynthia Paes to file documents under seal is GRANTED.

As an initial matter, the court notes that petitioners did not comply with the procedures for filing records under seal set forth in CRC 2.551(b)(3)(ii), CRC 2.551(b)(3)(iii), and CRC 2.551(b)(5).

Turning to the merits, the court deems the lack of opposition to the motion to seal to be a concession as to the merits of the motion. SDSC Local Rule 2.1.19(B). Moreover, respondent has established that the unredacted materials in the declaration of Catherine Crane contain confidential voter information. See, e.g., Elec. Code §§ 2194(b)(2), 18650. The court finds that this privacy interest overrides the right of public access to the materials such that there is a substantial probability the privacy interest will be prejudiced if the allegations in question are not sealed. The court further finds that the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding privacy interest.

The court will sign the proposed order (ROA 35) submitted with the moving papers.

B. The petition for writ of mandate is DENIED.

Preliminary Matters The request for judicial notice by respondent/defendant Diana Fuentes (ROA 46) is granted. Evid. Code § 451(a).

Respondent/defendants' evidentiary objections (ROA 39-40, 45) are overruled.

In issuing this ruling, the court has not considered the ruling from the San Francisco Superior Court cited in petitioners' reply briefs. 'Trial court decisions are not precedents binding on other courts under the principle of stare decisis.' Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148.

Applicable Standards Code of Civil Procedure section 1085 permits challenges to ministerial acts by local officials. 'To obtain such a writ, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty.' Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-29. 'A ministerial Calendar No.: Event ID: TENTATIVE RULINGS

3081765 5 CASE NUMBER: CASE TITLE: SAN DIEGO PUBLIC LIBRARY FOUNDATION VS DIANA FUENTES 37-2023-00014954-CU-WM-CTL duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists.' Id. at 129. 'The trial court reviews the challenged administrative action to determine whether it was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.' Shelden v. Marin County Employees' Retirement Assn. (2010) 189 Cal.App.4th 458, 463. '[T]he petitioner bears the burden of pleading and proving the facts on which the claim for relief is based.' California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153.

The City Clerk Did Not Act Arbitrarily or Capriciously The City Clerk used the November 2020 election as the baseline election to calculate the required number of signatures. Petitioners contend that, despite being informed of the Clerk's decision before they started gathering signatures, the Clerk should have used the November 2022 election as the baseline election pursuant to SDMC section 27.1020(c). The court disagrees.

'Courts interpret ordinances in the same way they construe statutes[.]' Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163, 174. 'First, a court should examine the actual language of the statute, giving the words their ordinary, everyday meaning.' Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1143. 'If the meaning is without ambiguity, doubt, or uncertainty, then the language controls and there is nothing to 'interpret' or 'construe.'' Id. 'If the meaning of the words is not clear, a court must take the second step and refer to the legislative history.' Id. at 1143-44.

'The final step, which is to apply reason, practicality, and common sense to the language at hand, should only be taken when the first two steps have failed to reveal clear meaning.' Id. at 1144.

Here, beginning with the statutory text, section 27.1020(c) provides that '[w]hen submitting the initiative petition, the proponent of the initiative, or any individual authorized in writing by the proponent, shall specify whether the Clerk is being requested to verify the validity of signatures of three percent, or ten percent, of registered voters of the City as of the last general City election.' (Italics omitted.) Petitioners contend that the ordinance 'clearly' ties the applicable baseline election for calculating signatures to the submission of the initiative petition to the Clerk. This is a reasonable interpretation. But it is not the only one. Another reasonable interpretation, advocated by the City, is that the ordinance merely requires the proponent of the initiative to notify the Clerk at the time the initiative petition is submitted whether the Clerk is being requested to verify the validity of three percent or ten percent of the signatures. 'A statute is ambiguous when it is susceptible to more than one reasonable interpretation.' Spotlight on Coastal Corruption v. Kinsey (2020) 57 Cal.App.5th 874, 891. The court therefore turns to the second step in the statutory interpretation analysis.

The only legislative history provided to the court is a March 2019 staff report from the City Clerk's office to the City Council. In that memorandum, the Clerk proposed adding subdivision (c) to section 27.1020 because 'the Clerk must be made aware of what threshold the proponent(s) is seeking to meet.' (Sutton Reply Decl., Ex. 1 at pp. 9-10.) This document does not help petitioners. To the contrary, it supports the notion that the ordinance is simply about informing the Clerk of the applicable percentage threshold.

Another consideration that cuts against petitioners and in favor of the City is the City's own interpretation of section 27.1020(c). See Symons Emergency Specialties v. City of Riverside (2024) __Cal.App.5th__, 2024 WL 470492, at *3, fn. 5. '[A] public employee may testify regarding the manner in which a statute, ordinance, or regulation has been administered or enforced.' Id. at *4. In this case, Diana Fuentes states in her declaration that '[i]t has been the City Clerk's long-standing policy to use the number of registered voters in the city of San Diego at the time of the last general City election prior to the fling of the notice of intent to circulate the initiative petition to determine the necessary number of valid signatures.' (Fuentes Decl., ¶ 3.) She further states '[t]he City Clerk has applied this policy consistently for each initiative petition, regardless of whether the number of registered voters increases or decreases from one general election to the next.' (Id.) This interpretation is entitled to 'great weight' unless it is clearly erroneous or unauthorized. Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896. Petitioners have not made such a showing.

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3081765 5 CASE NUMBER: CASE TITLE: SAN DIEGO PUBLIC LIBRARY FOUNDATION VS DIANA FUENTES 37-2023-00014954-CU-WM-CTL Finally, to the extent the court must proceed to the third step, the City's interpretation is consistent with reason and common sense. '[T]he court must consider the consequences that might flow from a particular construction and should construe the statute so as to promote rather than defeat the statute's purpose and policy.' Sylva v. Board of Supervisors (1989) 208 Cal.App.3d 648, 654. Here, petitioners' proposed interpretation could lead to absurd results, with different baseline elections depending solely on when the initiative petition is submitted. Moreover, a proponent of an initiative would clearly want to know the baseline election year before gathering signatures, rather than afterwards. See Coalition for Fair Rent v. Abdelnour (1980) 107 Cal.App.3d 97, 112 (explaining the 'desirability' for proponents of an initiative measure to know how many signatures are required before they begin to collect them because such knowledge 'helps them to determine the feasibility of circulating the petition and also to decide how many extra signatures should be obtained to protect against the possibility of disqualification'); see also Elec. Code § 9210(a) (requiring non-charter cities to '[a]scertain the number of registered voters of the city...effective at the time the [notice of intent] is published').

In sum, the court finds that petitioners have failed to meet their burden of showing that the City Clerk acted arbitrarily or capriciously in using November 2020, rather than the November 2022 election, as the baseline election.

The Registrar Did Not Act Arbitrarily or Capriciously Dates Listed Outside Circulation Time Frame Petitioners argue that the Registrar improperly rejected 13 signatures because the dates listed were outside the time during which the Initiative was circulated. The court disagrees. SDMC section 27.1011(a) requires voters to 'affix the date of their signature.' The fact that state law does not contain a similar provision is irrelevant. Charter cities, such as San Diego, may set their own initiative procedures. See Cal. Const., art. II, § 11(a); see also Elec. Code § 9247. San Diego has done so. See San Diego City Charter, art. III, § 23; see also SDMC §§ 27.1001, et seq. Thus, petitioners have failed to meet their burden of showing that the Registrar's rejection of these 13 signatures was arbitrary or capricious.

Street Numbers Do Not Match Petitioners challenge 6 signatures where the street number does not match the street number in the voter's registration records. However, petitioners' brief does explain why the Registrar acted improperly in rejecting these signatures. See In re Randall's Estate (1924) 194 Cal. 725, 728-29 (''Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.''). Accordingly, petitioners have failed to meet their burden with respect to this category.

Misspelled/Incorrect Addresses Petitioners contend that the Registrar improperly rejected 98 signatures where the addresses were misspelled and 4 signatures where the street name was missing a word. Again, the court disagrees.

Elections Code section 105(a)(1) provides that if the residence address on the petition is different from the residence address on the affidavit of registration 'the affected signature shall not be counted as valid.' According to the Registrar, each signature rejected in this category was reviewed by at least three individuals but none of them were unable to determine the signer's address. (De Anda Decl., ¶¶ 10-12.) The court's own review produced similar results. (See, e.g., Crane Decl. at ¶ 26 (Signature No.

26295), ¶ 27 (Signature No. 26677), ¶ 30 (Signature No. 30611).) Thus, petitioners have failed to meet their burden of showing that the Registrar's rejection of these 13 signatures was arbitrary or capricious.

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3081765 5 CASE NUMBER: CASE TITLE: SAN DIEGO PUBLIC LIBRARY FOUNDATION VS DIANA FUENTES 37-2023-00014954-CU-WM-CTL Petitions challenge the Registrar's rejection of 7 signatures where the petition was signed before the voter had officially updated their registered address to the address listed next to their signature.

However, '[a] registered voter who moves within the same voting precinct (or between voting precincts) must reregister in order to sign [an initiative] petition.' Mapstead v. Anchundo (1998) 63 Cal.App.4th 246, 266. This is consistent with the Code of Regulations. See Cal. Code Regs., tit. 2, § 20931(b)(2).

Petitioners have therefore failed to meet their burden with respect to this category of signatures.

Conclusion The court finds that petitioners have failed to meet their burden of showing that the Registrar acted arbitrarily or capriciously in rejecting the 128 signatures discussed above. In light of this conclusion, the court need not address petitioners' challenge to the remaining 173 signatures as petitioners would still be short of the number of signatures needed to qualify for a full count. See Elec. Code § 9115(b).

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