Judge: Marcella O. Mclaughlin, Case: 37-2023-00053361-CU-WM-CTL, Date: 2023-12-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 20, 2023

12/21/2023  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 37-2023-00053361-CU-WM-CTL COLEMAN VS BIGELOW [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The petition for writ of mandate is GRANTED.

A. As an initial matter, the court notes only one party complied with the court's order to provide courtesy copies. See ROA 27. This made the court's task significantly more difficult, especially considering that the writ hearing was specially set on shortened time.

B. Miesfeld's request for judicial notice is granted as to Exhibits A and B (Evid. Code § 452(c)), but denied as to Exhibit C. The judgment in Case No. 2023-35780 has no precedential value (Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761), and judicial notice cannot be used to impart to it value it does not have (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 963 fn. 3).

C. Miesfeld's objection to the writ based on the doctrine of laches is overruled. There is no time deadline for bringing a writ under Elections Code section 13314. Moreover, Miesfeld has failed to show any prejudice from the delay because election materials will not be printed until December 27. The absence of such prejudice distinguishes this case from Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, where 'the Town had taken all the necessary steps to hold the special election: the notice of election had been published; the sample ballot, including the analysis and arguments for and against the measure, had been prepared and printed; and the absentee ballots had been mailed and the absentee voting had commenced.' Id. at 14.

D. Turning to the merits, on a petition for writ of mandate brought pursuant to Code of Civil Procedure section 1085, the petitioner bears the burden of pleading and proving facts on which the claim for relief is based. California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153. In the context of a petition based on Elections Code section 13314, the petitioner must establish (1) that the error, omission, or neglect is in violation of the Elections Code or the Constitution, and (2) that issuance of the writ will not substantially interfere with the conduct of the election. Elec. Code § 13314(a)(2).

Here, the court finds that Coleman has met his burden of showing that Miesfeld's proposed ballot designation of 'Chula Vista Attorney' violates Election Code section 13107(e)(1) because it would 'mislead the voter.' It is undisputed that Miesfeld is neither the Chula Vista City Attorney nor is he currently employed in any capacity by the City Attorney's office. (Ochoa Decl., Ex. 3; Miesfeld Decl., ¶ 3.) Miesfeld argues that no reasonable voter would think that he is the incumbent City Attorney because it is common knowledge that the position has been vacant for more than a year. However, even if voters know that Miesfeld is not the acting City Attorney, the designation of 'Chula Vista Attorney' is still Calendar No.: Event ID:  TENTATIVE RULINGS

3066035  3 CASE NUMBER: CASE TITLE:  COLEMAN VS BIGELOW [IMAGED]  37-2023-00053361-CU-WM-CTL misleading because it implies that Miesfeld is somehow professionally associated with the City Attorney's office and/or the City of Chula Vista.

The court recognizes that some voters might interpret the challenged designation as simply referencing the geographical area where Miesfeld practices law. The relevant inquiry, however, is 'whether there is a substantial likelihood that a reasonably prudent voter would be misled as to the candidate's principal profession, vocation or occupation by the candidate's proposed ballot designation.' 2 Cal. Code Regs., tit. 2, § 20716(c). The court is persuaded that a substantial likelihood exists here. Accordingly, the petition for writ of mandate is granted.

E. Miesfeld's request to use 'Retired Chula Vista City Attorney' as an alternative designation is denied.

The proposed alternative runs afoul of the three word limit in Elections Code section 13107(a)(3).

To the extent Miesfeld instead seeks to use 'Retired City Attorney,' such a designation does not meet several of the factors set forth in Code of Regulations section 20716(h)(2), including that the candidate have worked in the profession for more than 5 years and that the position retired from be the candidate's most recent professional position. See Cal. Code Regs., tit. 2, § 20716(h)(2)(A), (D).

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