Judge Mitchell L. Beckloff, Case Number: 23STCP02365, Date: 2023-10-25 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP02365, Date: 2023-10-25 Tentative Ruling

Respondents, Dean C. Logan, in his official capacity as the Los Angeles County Registrar-Recorder/County Clerk (Registrar) and Los Angeles County Registrar-Recorder/County Clerk (collectively, Respondents) demur to the second amended petition (SAP) for a writ of mandate filed by Petitioner, Committee to Support the Recall of District Attorney George Gascon, for failure to state a cause of action and misjoinder of parties. Real Party in Interest, George Gascon, joins in the demurrer.

Respondents’ Request for Judicial Notice (RJN) of Exhibit A is granted. While the court judicially notices the existence of this official record, the courtt does not judicially notice the truth of any factual or hearsay statements made therein. (See Love v. Wolf (1964) 226 Cal.App.2d 378, 403; Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 22.)

On July 28, 2023, Petitioner filed its first amended petition (FAP) for writ of mandate. Petitioner alleges the Registrar unlawfully rejected a petition to recall Gascon from his elected position as Los Angeles County District Attorney (the Recall Petition).

On October 25, 2023, after a hearing, the court granted, with leave to amend, Respondents’ motion to strike. In relevant part, the court ruled Elections Code section 11221, subdivision (b) requires the Registrar to rely on the Registrar’s report of registration to the Secretary of State, pursuant to Elections Code section 2187, to determine the required number of signatures to qualify a recall petition for the ballot. The court found Petitioner had not alleged in the FAP that the Registrar failed to correctly calculate the required number of signatures based on the report of registration. However, the court found a reasonable possibility Petitioner could amend the FAP to state a claim challenging the report of registration’s conclusions concerning the number of registered voters in the County. Accordingly, the court granted Petitioner leave to amend.

On November 13, 2023, Petitioner filed its SAP. Respondents, joined by Gascon, now demur to the SAP.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The allegations in the petition must be liberally construed in favor of Petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.) “A demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

The Demurrer Does Not Dispose of an Entire Cause of Action and the SAP Provides Adequate Notice of Petitioner’s Claims

Petitioner contends the demurrer must be overruled because it does not dispose of an entire cause of action. Petitioner also contends the SAP provides “sufficient detail to put the Registrar on notice of the claims against it.” (Opposition 16:19-20.) The court agrees on both points.

“A demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) A challenge to a portion of a cause of action must be brought by motion to strike. (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1682.)

The following pleading standards are relevant to whether the demurrer disposes of an entire cause of action. “[T]he complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “It has been consistently held that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.’ ” (Ibid.) “Moreover, ‘[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’ ” (Ibid.)

“ ‘The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff. [Citation.]’ ” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exch. (2005) 132 Cal. App. 4th 1076, 1099.)

The SAP alleges the Registrar erroneously rejected the Recall Petition because (1) he inaccurately calculated the threshold number of signatures needed to qualify the petition for a recall election; and (2) he incorrectly rejected valid petition signatures. (See e.g., SAP ¶ 35 (i).) Petitioner seeks writ relief based on both legal theories, either separately or in combination. The larger the inaccuracy in Registrar’s calculation in the threshold number of signatures needed to qualify the Recall Petition shown by Petitioner, the lower the number of incorrectly rejected signatures Petitioner must prove. The inverse is also true: the larger the number of incorrectly rejected signatures Petitioner proves, the lower the inaccuracy in the calculation of the threshold Petitioner must prove.

In the demurrer, Respondents contend that Petitioner has not pleaded sufficient facts to support the first legal theory, concerning Registrar’s calculation of the number of required signatures. Respondents do not challenge the sufficiency of Petitioner’s pleading of the second legal theory that the Registrar incorrectly rejected valid signatures.[1]

Registrar’s legal duties with respect to the Recall Petition are based, in part, on Elections Code section 11221, which provides in relevant part:

The number of qualified signatures required in order to qualify a recall for the ballot shall be as follows:

(a) In the case of . . . a . . . county, . . . the number of signatures shall be equal in number to not less than the following percent of the registered voters in the electoral jurisdiction:

(b) For purposes of this section, the number of registered voters shall be calculated as of the time of the last report of registration by the county elections official to the Secretary of State pursuant to Section 2187,[2] and prior to the finding by the elections official or Secretary of State that no alterations are required in the form of the recall petition pursuant to Section 11042. (Emphasis added.)

Elections Code section 11224 also imposes legal duties on the Registrar relevant here. Specifically, Elections Code section 11224, subdivision (a) states in part:

The elections official shall examine the petition, and from the records of registration, ascertain whether or not the petition is signed by the requisite number of voters. If the elections official’s examination shows that the number of valid signatures is greater than the required number, the elections official shall certify the petition to be sufficient. If the number of valid signatures is less than the required number, the elections official shall certify the petition to be insufficient.

If the Registrar fails to perform his ministerial duties in certifying a recall petition, or the Registrar performs his duties in an arbitrary or capricious manner, those legal duties may be enforced by mandate. (See Wheelright v. County of Marin (1970) 2 Cal. 3d 448, 456; Assembly of State of California v. Deukmejian (1982) 30 Cal. 3d 638, 645-46.) “Although mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion.” (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 204.)

Among other allegations, the SAP includes the following allegations relevant to Petitioner’s examination of the Recall Petition:

19. . . . . On August 18, 2022, determined to uncover how and why so many signatures were rejected, the Committee informed the Registrar that it intended to exercise its statutory right, under Elections Code section 11301 and Government Code section 7924.110, to examine the petition to assess “which signatures were disqualified and the reasons therefor.”

20. Four weeks into the review process, the Registrar broke each one of [his] promises [regarding the review process]. First, the Registrar refused to provide the Committee with sufficient access to the records its needed to adequately evaluate each signature's rejection, or otherwise provided the Committee with records only in a form that made it incredibly arduous to conduct the signature review. Second, the Registrar unreasonably limited the manner in which the review could be conducted. Under the conditions the Registrar imposed, it would have taken the Committee over eighteen months to complete its review—far beyond any conception of a reasonable review period. The Committee was forced to come to court and obtain an injunction providing the access that it demanded. (See Committee to Support the Recall of District Attorney George Gascon v. Dean C. Logan, et al., Los Angeles Superior Court Case No. 22STCP03795.) The Registrar has since sought to delay compliance with the trial court's injunction by taking an appeal and opposing (unsuccessfully) expedited consideration of the appeal. (See Committee to Support the Recall of District Attorney George Gascon v. Dean C. Logan, et al., Second District Court of Appeal Case No. B326869.) As of the filing of this complaint, that appeal remains pending, and several documents ordered disclosed that are crucial to the Committee's examination continue to be withheld.

21. [T]he Recall Petition signatures that the Committee has been able to review so far have revealed scores of incorrect signature rejections and a substantial lack of compliance with signature review guidelines. Many signature rejections were flat-out wrong, such as rejecting signatures as belonging to unregistered voters even though the voter was, in fact, registered. Other signature rejections appeared to be based on a reviewer's misunderstanding of the information in the voter file, or a completely unreasonable interpretation of the signature review guidelines. Just some examples of the reasons for the incorrectly-rejected signatures are as follows: . . . .

The SAP then provides multiple examples of Recall Petition signatures the Registrar improperly rejected. (SAP ¶¶ 21-22.)

Significantly for this demurrer, the SAP alleges the review process is not complete:

22. To date, the Committee has been able to review only about 110,000 of the 195,000 rejected signatures. Based on its review so far, the number of incorrectly rejected signatures for each category is approximately as follows—with even more incorrect rejections likely to be found as the Committee's review continues: [chart specifying reasons for 20,587 incorrectly rejected signatures]. (SAP ¶ 22 [emphasis added].)

The SAP also alleges “no fewer than 5,597 additional signatures were wrongly rejected on the basis of a failure to comply with signature review standards, or based on the application of unconstitutional signature review standards. . . .” (SAP ¶ 23 [emphasis added].)

The SAP alleges at length the reasons Petitioner contends the Registrar incorrectly calculated the number of required signatures based on the report of registration for the County as of January 4, 2022. (SAP ¶¶ 24-32.) Among other allegations, the SAP alleges:

28. But there was a massive problem with the Registrar's stated number: the number of active registered voters that Los Angeles County certified to the Secretary of State did not even come close to the actual number of properly calculated active registered voters as of January 4, 2022. To the contrary, the number of properly calculated active registered voters in Los Angeles County as of that date was several hundred thousand fewer than what the Registrar claimed.

29. On October 24, 2022, in response to a Public Records Act request, the Registrar confirmed that as of December 31, 2021-four days before the Registrar certified its voter registration numbers to the Secretary of State—Los Angeles County had a mere 5,438,400 active registered voters, or 230,169 fewer than it reported to the Secretary of State. Attached as Exhibit 6 is a true and correct copy of this letter.[3]

30. Furthermore, the 5,438,400 active registered voters that the Registrar claimed to exist was in fact further inflated by several tens of thousands of voters. In September 2022, the Committee received from the Registrar a spreadsheet of all persons it considered active registered voters. After eliminating all new voter registrations during calendar year 2022 from the spreadsheet, and running the remaining voters through various public or semi-public databases and information sources (such as the National Change of Address database), it was determined that approximately 35,015 persons identified as active registered voters should not have been so identified for various reasons—such as the voter had moved out of county or out of state, the same voter had multiple duplicate registration records, and other reasons. The table below more fully describes each such categories and how many registrants fell within each category.

The SAP also includes citations to statutes and regulations in support of Petitioner’s claim the Registrar had a mandatory duty to calculate the number of required signatures differently based on the report of registration and/or the Registrar acted arbitrarily and capriciously in such calculation. (SAP ¶ 35 (d) through (i).)

Finally, while Petitioner has included numerical estimates under both theories, it has qualified them with statements making clear that those estimates could further change in Petitioner’s favor. Thus, paragraph 35(a) of the SAP in the first cause of action alleges:

As alleged herein, the number of valid signatures submitted in support of the Recall Petition was greater than ‘the required number’ because: (1) no fewer than 546,234 valid signatures were submitted in support of the Recall Petition; and (2) no greater than 540,338 valid signatures were required by law to be submitted to qualify for a recall election. (Emphasis added.)

Given the liberal pleading standard; the allegation that Petitioner’s review of the Recall Petition signatures is continuing, at least in part due to “delay” caused by Registrar; and the reasonable assumption the Registrar has knowledge of the facts regarding the accuracy of the report of registration equal to that possessed by Petitioner, the court finds the foregoing allegations sufficiently provide notice to Respondents of Petitioner’s legal claims.

Further, the court cannot conclude on demurrer Petitioner necessarily needs to prove the Registrar inaccurately calculated the number of required signatures in order to prevail in this proceeding. As noted, the SAP alleges Petitioner’s review process is not complete and “even more incorrect rejections [are] likely to be found as the Committee's review continues.” (SAP ¶ 22 [emphasis added].) While it seems somewhat unlikely Petitioner could obtain writ relief based solely on its claim the Registrar incorrectly rejected valid signatures, the court cannot adjudicate as a factual matter the exact number of properly rejected invalid signatures (if any) on demurrer.

Petitioner alleges Registrar improperly rejected more than 26,000 signatures (SAP ¶¶ 2 (a) through (c)), has “delayed” the review process (SAP ¶ 20), and even more incorrect rejections are “likely” to be found (SAP ¶ 22). Given such allegations, Petitioner has provided sufficient support at the pleading stage for its legal theory that such number of improperly rejected signatures could possibly surpass the 46,807 signature shortfall found by the Registrar. (SAP ¶ 2 and ¶ 35.)

Based on the foregoing, the SAP provides Respondents sufficient notice of Petitioner’s claims. The demurrer—even if well taken—also would not dispose of an entire cause of action. Accordingly, the demurrer is overruled.

Petitioner Has Sufficiently Alleged Ministerial Duties Owed by the Registrar as to the Calculation of the Number of Required Signatures Based on the Report of Registration

As noted, the SAP also includes citations to statutes and regulations in support of Petitioner’s claim the Registrar had a mandatory duty to calculate the number of required signatures differently based on the report of registration and/or the Registrar acted arbitrarily and capriciously in performing his duty. (SAP ¶ 35 (d) through (i).) The court finds these allegations sufficient to give Respondents notice of Petitioner’s legal claims at the pleading stage. Respondents are not precluded from raising their arguments concerning the relevance and/or effect of the cited statutes and regulations in their briefing at the time of trial.

A discussion of the specific mechanics of each of the cited statutes and regulations is not necessary for the court to rule on Respondents’ demurrer. Respondents acknowledge that “the statutes relied upon generally provide for the voter rolls to be updated based on various changes in the voter’s status.” (Memo 9:8-9.) However, Respondents argue the pleading is deficient because “those statutes do not impose any specific timeframes that would be necessary to retroactively exclude hundreds of thousands of voters from the active voter list. “ (Memo 9:9-11.) Respondents contend Petitioner has failed to identify any “legally enforceable nondiscretionary duty . . . .” (Reply 1:18.)

Respondents’ timing arguments are not dispositive on demurrer. As discussed earlier, Petitioner alleged “Respondents confirmed that as of December 31, 2021, four days before the Registrar certified its voter registration numbers to the Secretary of State—Los Angeles County had a mere 5,438,400 active registered voters, or 230,169 fewer than it reported to the Secretary of State.” (SAP ¶ 29.) Petitioner also alleges, based on its review of pertinent voter information, “it was determined that approximately 35,015 persons identified as active registered voters should not have been so identified for various reasons—such as the voter had moved out of county or out of state, the same voter had multiple duplicate registration records, and other reasons.” (SAP ¶ 30.) The court must assume the truth of these allegations at the pleading stage. Given the substantial discrepancy from the report of registration, and with reference to the statutes and regulations cited in the SAP (SAP ¶¶ 35 (d) through (i)), Petitioner has sufficiently pleaded the Registrar either had a ministerial duty to calculate the number of required signatures differently based on the report of registration or that Registrar acted arbitrarily and capriciously when he exercised his duty. (See Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1173. [“Although mandate will not lie to control a public agency’s discretion, that is to say, force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion.”])

Respondents also argue Petitioner’s allegations are improperly made on information and belief. “ ‘[P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.’ ” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) For purposes of a pleading, Petitioner has sufficiently alleged information upon which it relied, including the Registrar’s October 24, 2022, response to a public records request and Petitioner’s review of “various public or semi-public databases and information sources (such as the National Change of Address database).” (SAP ¶¶ 29-31.)

Respondents contend the “judicially noticeable facts indicate that the Registrar certified that he did perform the synchronization as part of the January 4, 2022 Report of Registration.” (Memo 13:3-5 [citing RJN Exh. A].) While the court judicially notices the certification, the court cannot adjudicate on demurrer the factual issue of whether Registrar properly performed the synchronization required by law. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374. [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”]; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879. [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.”])

Respondents contend “[e]ven if the Committee were able to identify particular voters whose circumstances warranted transfer to inactive or cancelled status, it cannot identify any present duty on the part of the Registrar to retroactively modify its January 2022 certification of registration to the Secretary of State or any present duty on the part of the Secretary to retroactively amend or correct the Report of Registration.” (Memo 14:16-20.) While Respondents may further develop this argument for trial, the court is not persuaded this issue of remedy may or should be decided on demurrer. A writ is an equitable remedy and “is steeped in practicality.” (California High-Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676, 710.) Depending on the facts proven at trial and the specific circumstances presented at that time, the court could plausibly fashion a remedy with respect to certification of the Recall Petition without requiring the Registrar to retroactively modify its January 2022 certification of registration to the Secretary of State or any retroactive amendments to the Report of Registration.

Respondents contend “the SAC seeks to require the Registrar to take actions that he could not take without cooperation from the Secretary [of State].” (Memo 19:1-2.) Accordingly, Respondents contend that the Secretary of State is a necessary and indispensable party.

“In civil litigation generally, the question whether a person must be joined as a party to a suit is governed by the compulsory joinder statute, section 389 of the Code of Civil Procedure. Subdivision (a) of that statute states: ‘A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.’ (Code Civ. Proc., § 389, subd. (a).) If such a person (sometimes called a ‘necessary’ party) cannot be joined, subdivision (b) requires the court to consider ‘whether in equity and good conscience’ the suit can proceed without the absent party, or whether the suit should instead be dismissed without prejudice, ‘the absent person being thus regarded as indispensable.’ (Id., subd. (b).).” (Bianka M. v. Superior Court (2018) 5 Cal.5th 1004, 1016-1017.)

Specifically, “[t]he factors to be considered by the court include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b). See generally Citizens for Amending Proposition L v. City of Pomona, supra, 28 Cal.App.5th at 1178-1179.)

That a preemptory writ of mandate or, in the alternative, an alternative writ of mandate issue commanding Respondents to: a. Count as valid any and all incorrectly-rejected Recall Petition signatures identified herein; b. Re-issue a certificate that accurately identifies the number of valid Recall Petition signatures; and c. Certify to the Los Angeles County Board of Supervisors that the Recall Petition is sufficient to order a recall election for District Attorney George Gascon. (SAP Prayer ¶ 1.)

The SAP does not seek any relief with respect to the Secretary of State. Nor do Respondents show that issuance of the requested writ would impair any rights or duties of the Secretary of State. Further, as discussed earlier, depending on the facts proven at trial and the specific circumstances presented at that time, the court could plausibly fashion a remedy with respect to certification of the Recall Petition without requiring the Registrar to retroactively modify its January 2022 certification of registration to the Secretary of State or any retroactive amendments to the Report of Registration. Thus, at this stage of the proceedings, there is insufficient reason to believe that the Secretary of State would be impacted in any way by this writ action, or that complete relief could not be given in the absence of the Secretary of State.[4]

[1] Respondents do contend, however, even assuming all of the allegedly improper signatures are deemed valid for the Recall Petition, the number of valid signatures nonetheless remains insufficient to prevail on the SAP.

[2] Elections Code section 2187 provides, in part:

(a) Each county elections official shall provide notice to the Secretary of State that the following information is available: (1) The total number of voters in the county . . . . (b) The Secretary of State, within 30 days after receiving the information specified in subdivision (a), shall compile a statewide list showing the number of voters, by party preferences, in the state and in each county, city, supervisorial district, Assembly district, Senate district, and congressional district in the state. A copy of this list shall be made available, upon request, to any elector in this state. (c) The county elections officials shall prepare the information referenced in subdivision (a) and provide notice to the Secretary of State at the following times: . . . . [various specified statutory deadlines].”

[3] Contrary to Respondents’ suggestion, the court cannot adjudicate the truth of this allegation or the reason for the discrepancy in the number of active voters on demurrer or based on extrinsic evidence. (See Memo, fn. 2.) The court is not permitted to resolve a factual dispute on demurrer.

[4] Respondents are not precluded from raising their arguments concerning joinder of the Secretary of State in the briefing for trial.