Judge: Michael Shultz, Case: 22CMCP00169, Date: 2023-01-19 Tentative Ruling
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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 22CMCP00169 Hearing Date: January 19, 2023 Dept: A
22CMCP00169 Sharma Henderson v. Khaleah Bradshaw
[TENTATIVE] ORDER
I.
BACKGROUND
Petitioner commenced this action
on September 21, 2022, with a Petition for Writ of Mandate for alleged
violations of the Election Code. Petitioner requests an order for Respondent to
withdraw herself from the November 8, 2022 ballot, remove the candidate
statements made by the City Clerk and Vera Robles DeWitt, and withdraw her
status as designated elections official because of her conflict of interest.
On September 22, 2022, the Hon.
Ricardo R. Ocampo, denied Petitioner’s ex parte application seeking the same
relief on grounds of defective notice.
II.
ARGUMENTS
Respondent, Khaleah Bradshaw, in
her official capacity as Carson City Clerk, demurs to the petition on grounds
it is barred for lack of jurisdiction. The Court cannot grant the requested
relief. Petitioner fails to state a cause of action because she has not alleged
that she exhausted administrative remedies. Petitioner failed to join necessary
and indispensable parties. The petition will be rendered moot by the time of
the hearing since ballots will already have been printed.
On October 19,
2022, Respondent separately filed a motion to strike the entire petition since
it is not verified as required by law. Respondent acknowledges that the motion
may be rendered moot if the Court sustains the demurrer.
Respondent served
Petitioner with the demurrer and motion to strike by mail. Respondent complied
with the requirements for meeting and conferring with Petitioner prior to
filing the demurrer and motion to strike. Code Civ. Proc., § 430.41, Code Civ. Proc., § 435.5. The Court’s
file does not reflect that Petitioner filed oppositions.
III.
LEGAL STANDARDS
A
demurrer tests the sufficiency of a complaint as a matter of law and raises
only questions of law. Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. The
court must assume the truth of (1) the properly pleaded factual allegations;
(2) facts that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The court may not consider contentions,
deductions, or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.4th 634, 638.
Petitioner must allege facts sufficient to
establish every element of each cause of action. Rakestraw v. California Physicians
Service (2000)
81 Cal.App.4th 39, 43. Where the complaint fails to state facts sufficient to
constitute a cause of action, courts should sustain the demurrer. Code Civ.
Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126. Whether
the Petitioner will be able to prove the pleaded facts is irrelevant. Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.
A demurrer may also be sustained if a
complaint is “uncertain.” Uncertainty exists where a complaint’s factual
allegations are so confusing, they do not sufficiently apprise a Respondent of
the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10, subd. (f).
The court may, upon motion or at any time
in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the Court. Code Civ. Proc., § 436 subd (a)-(b). Grounds for the motion
to strike are limited to matters that appear on the face of the pleading or on
any matter which the court shall or may take judicial notice. Code Civ. Proc., § 437.
IV.
DISCUSSION
Traditional mandamus under Code
Civ. Proc., § 1085 applies to “’quasi-legislative decisions’, defined as those
involving the formulation of a rule to be applied to all future cases,’ while
administrative mandamus under section 1094.5 applies to ‘quasi-judicial’
decisions, which involve ‘the actual application of such a rule to a specific
set of existing facts.’" Southern California Cement Masons Joint Apprenticeship Committee
v. California Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1541.
As Petitioner seeks application of
a rule concerning the November 22, 2022 election allegedly requiring Respondent
to withdraw for conflict of interest, Code Civ. Proc., section 1094.5 applies. Respondent
has not cited any authority for the contention that an administrative hearing is
required before Petitioner can seek a writ of mandate. On the contrary, "[a]n
elector may seek a writ of mandate alleging that an error or omission has
occurred, or is about to occur, in the placing of a name on, or in the printing
of, a ballot, county voter information guide, state voter information guide, or
other official matter, or that any neglect of duty has occurred, or is about to
occur." Elec. Code, § 13314, subd (a)(1).
Accordingly, Respondent has not shown that this court lacks jurisdiction over
the writ petition.
Respondent has not cited any
authority for the contention that the Los Angeles County Recorder is a
necessary party since it is charged with printing ballots. Rather, since the
case arises from an election for the Clerk for the City of Carson, “[t]he city
elections official shall have the necessary ballots printed and shall procure
and furnish to the election officers the necessary supplies and equipment as
specified in Sections 14105 and 14110. The elections official shall see that
they are properly distributed to each precinct prior to the opening of the
polls on the day of election." Elec. Code, § 10240.
Notwithstanding the foregoing, the
court cannot grant the requested relief because Petitioner seeks withdrawal of Respondent’s
candidacy and other information from the ballot, and the election occurred on
November 8, 2022. Petition, 1:23-24. Accordingly, the petition is rendered moot
as “any ruling by this court can have no practical impact or provide the
parties effectual relief." Woodward Park Homeowners Ass'n v. Garreks, Inc. (2000) 77
Cal.App.4th 880, 888.
The motion to strike is GRANTED as
the petition is required to be verified. Cal. Rules of Court, 8.486 subd.
(a)(4).
V.
CONCLUSION
Based on the relief requested, the
Petition is fatally defective, and there is no reasonable possibility of curing
the defect. Association of Community Organizations for Reform Now v.
Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302 [leave to amend is ordinarily given where there is a reasonable
possibility that the defect can be cured]. Accordingly, demurrer is SUSTAINED
and the Motion to Strike is GRANTED without leave to amend.