Judge Mitchell L. Beckloff, Case Number: 23STCP04502, Date: 2023-12-22 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP04502, Date: 2023-12-22 Tentative Ruling

Petitioner, Lusine Martikyan, seeks a writ of ordinary mandate directing Respondent, Holly L. Wolcott, in her official capacity as the City of Los Angeles Clerk (City Clerk) to prohibit Real Party in Interest, Manny Gonez (Gonez) from using the ballot designation “Housing Advocate” on the ballot and in ballot materials for the March 5, 2024 primary election for the office of Councilmember, City of Los Angeles, Second Council District. Gonez opposes the petition.

Petitioner’s RJN of the Internal Revenue Service form 990 for 2021 filed by TreePeople (Form 990) is granted.

Gonez is a candidate for the Second Council District for the Los Angeles City Council. (Pet. Exh. A.) In his Declaration of Intention to Become a Candidate, Gonez specified a preferred ballot designation of “Housing Advocate/Environmentalist.” (Pet. Exh. A.)

Gonez’s campaign website reports Gonez previously worked “for LA Family Housing, a San Fernando Valley nonprofit that provides housing and services to more than 11,000 people in Los Angeles.” (Pet. Exh. B.) Gonez’s campaign website also states Gonez “[n]ow . . . serves as Policy Director of TreePeople, Southern California's leading environmental nonprofit, where he has led programs to reduce air and water pollution and address climate change.” (Pet. Exh. B.)

Petitioner is a registered voter who resides in the Second Council District for the Los Angeles City Council. (Pet. ¶ 1.) On December 14, 2023, Petitioner initiated this proceeding to challenge Gonez’s preferred ballot designation of “Housing Advocate.” Petitioner does not challenge Gonez’s preferred ballot designation of “Environmentalist.”

On December 19, 2023, the court granted Petitioner’s ex parte application for an order setting the hearing on her petition on shortened time given any changes to a ballot designation must be made no later than December 28, 2023, according to the Los Angeles County Registrar-Recorder/County Clerk.[1] The court set the petition for hearing on December 22, 2023, and ordered any opposition to be filed by December 21, 2023 no later than 9:00 a.m. The court ordered Petitioner to serve all required court papers forthwith on Gonez.

On December 18, 2023, Respondent, Dean C. Logan, in his official capacity as County of Los Angeles Registrar-Record/County Clerk (Logan), filed a response to the ex parte application. Logan took no position on the merits of the petition but indicated “the matter [must] be heard and resolved on an expedited basis on or before Thursday, December 28, 2023, so that there is no interference or disruption with the Registrar's conduct of the County's March 5, 2024 Presidential Primary Election (‘Election’), which the City has consolidated its March 5, 2024 Primary Nominating Election with.” (Logan Response 2:17-20.)

On December 19, 2023, Petitioner filed her memorandum of points and authorities in support of the petition and a supporting declaration of counsel.

On December 20, 2023, City Clerk filed a response to the petition, a request for judicial notice, and a declaration of Jinny Pak, Chief of the Election Division of the Office of the Los Angeles City Clerk.

On December 20, 2023, Petitioner filed a proof of service reporting Petitioner’s process server served the verified petition on Gonez on December 19, 2023 by substitute service.

On December 21, 2023, Gonez timely filed an opposition to the petition and two declarations in support of his opposition.

(1) An 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.

(2) A peremptory writ of mandate shall issue only upon proof of both of the following:

(A) That the error, omission, or neglect is in violation of this code or the Constitution.

(B) That issuance of the writ will not substantially interfere with the conduct of the election.

Generally, the petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) However, pursuant to California election regulations, “[t]he candidate shall have the burden of establishing that the proposed ballot designation that he or she has submitted is accurate and complies with all provisions of Elections Code § 13107 . . . .” (Cal. Code of Regs., tit. 2, § 20717, subd. (c).)

Petitioner contends Gonez cannot use the ballot designation of “Housing Advocate” “because he is a policy director for an environmental organization, not a housing organization.” (Pet. ¶¶ 19-20.)

[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.

California elections regulations provide the following definitions for ballot designations submitted pursuant to Elections Code section 13107, subdivision (a)(3):

(1) “Profession” means a field of employment requiring special education or skill and requiring knowledge of a particular discipline. . . . Recognized professions generally include, but are not limited to, law, medicine, education, engineering, accountancy, and journalism. . . .

(2) “Vocation” means a trade, a religious calling, or the work upon which a person, in most but not all cases, relies for his or her livelihood and spends a major portion of his or her time. As defined, vocations may include, but are not limited to, religious ministry, child rearing, homemaking, elderly and dependent care, and engaging in trades such as carpentry, cabinetmaking, plumbing, and the like. . . .

(3) “Occupation” means the employment in which one regularly engages or follows as the means of making a livelihood. Examples of an acceptable designation of an “occupation,” as defined in Elections Code § 13107, subdivision (a)(3), include, but are not limited to, “rancher,” “restaurateur,” “retail salesperson,” “manual laborer,” “construction worker,” “computer manufacturing executive,” “military pilot,” “secretary,” and “police officer.”

(b) “Principal,” as that term is used in Elections Code § 13107, subdivision (a)(3), means a substantial involvement of time and effort such that the activity is one of the primary, main or leading professional, vocational or occupational endeavors of the candidate. The term “principal” precludes any activity which does not entail a significant involvement on the part of the candidate.

(d) If the candidate is engaged in a profession, vocation or occupation at the time he or she files his or her nomination documents, the candidate's proposed ballot designation is entitled to consist of the candidate's current principal professions, vocations and occupations. . . . (Cal. Code of Regs., tit. 2, § 20714.)[2]

Gonez’s campaign website reports he currently “serves as Policy Director of TreePeople, Southern California's leading environmental nonprofit, where he has led programs to reduce air and water pollution and address climate change.” (Pet. Exh. B.) TreePeople’s website similarly states Gonez is the organization’s Director of Policy Initiatives. (Pet. ¶ 9, Exh. D.) According to the TreePeople website, “TreePeople’s mission is to inspire, engage and support people to take personal responsibility for the urban environment, making it safe, healthy, fun and sustainable and to share our process as a model for the world.” (Pet. Exh. C). “TreePeople is now one of the largest environmental organizations headquartered in Southern California.” (Pet. Exh. C.) TreePeople pursues its environmental goals through “education,” “forestry,” “parks & trails,” “policy & research,” and “community” programs. (Pet. Exh. C.)

Gonez’s campaign website as well as TreePeople’s website both indicate TreePeople is an environmental organization. However, neither website indicates TreePeople is not involved in housing advocacy as part of its environmental work. Notably, on a webpage entitled “Our People,” TreePeople’s website states “[t]he TreePeople team is made up of dedicated, passionate and veteran leaders in the environmental movement, committed to bringing research-based solutions to greening communities across our region.” (Pet. Exh. C [emphasis added].) On a webpage entitled “Our History,” TreePeople explains “[f]or 50 years, TreePeople has inspired, engaged, and supported more than 3 million people to take action for our environment by planting and caring for trees in forests, mountains, parks, and our neighborhoods.” (Pet. Exh. C [emphasis added].) TreePeople’s environmental advocacy in “communities” and “neighborhoods” could include a housing component. The evidence upon which Petitioner relies, therefore, is inconclusive. That is, it neither includes nor excludes “Housing Advocate” from those duties Gonez performs for his employer.

Based on the evidence submitted by Gonez, however, the evidence preponderates in favor of a finding Gonez regularly engages in housing advocacy work in his current position with TreePeople. All of the evidence before the court is consistent and supports Gonez’s position in this proceeding.

For example, in his Ballot Designation Worksheet filed with the City on November 7, 2023, Gonez wrote: “I’ve led both the housing and environmental policy initiatives work at TreePeople, the largest nonprofit in Southern CA for over 4 yrs. TreePeople leads the region in sustainable housing policy and greening. I’m the organization’s Director of Policy Initiatives.” (Park Decl. ¶¶ 9-11, Exh. 3.) Gonez also reported on the worksheet he has been the Director of Policy Initiatives at TreePeople since December 2019. (Park Decl. ¶¶ 9-11, Exh. 3.) Gonez signed the Ballot Designation Worksheet and attested “to the best of [his] knowledge and belief, the above-requested ballot designation represents [his] true principal profession, vocation, and/or occupation pursuant to Section 306 of the City of Los Angeles Election Code.” (Park Decl. ¶¶ 9-11, Exh. 3.) [3]

Gonez also provides a thorough discussion of his duties with TreePeople in his declaration. He explains:

3. I was recruited for my current role at TreePeople by our longtime Chief Executive Officer, Cindy Montañez, because of my decade of experience working on housing policy for housing non-profits and elected officials. Because of this background, I understand how urban environmental policy and housing policy are interconnected. Supporting housing development and environmentalism are not mutually exclusive. To the contrary, greater, affordable, and sustainable housing, particularly in overlooked urban areas, is key to achieving both climate and environmental justice goals. Day in and day out, I work to execute this vision through the work I lead.

4. Throughout 2022 and 2023, my team and I at TreePeople have engaged in significant work as it pertains to housing advocacy. Some examples include but are not limited to the following:

5. I have advocated with the California State Legislature for the passage of critical housing measures and for the funding of housing grant programs in the budget year over year, marshaling my team and our lobbying partners Resolute, a Sacramento lobbying firm with which TreePeople contracts and that I manage day-to-day to successfully achieve these objectives.

6. The team that I lead partnered with the State of California’s Strategic Growth Council, whose mission is to invest in land-use planning related to climate and land management, to ensure that the Affordable Housing and Sustainable Communities Program marries affordable housing with green infrastructure, so that burgeoning affordable housing developments contain essential nature-based solutions in communities who otherwise would not have such opportunities.

7. I participated in a workgroup led by The Nature Conservancy to advance the development of Assembly Bill 68 – legislation that would require local governments to approve proposed housing development through a streamlined, ministerial approval process if certain planning standards were met.

8. I have been a leading participant in two of the three Transformative Climate Collaborative (TCC) projects led by TreePeople in Watts, South Los Angeles, and Riverside. The underlying mission of all three TCC projects is to implement a multifaceted investment approach in disadvantaged communities, by connecting housing, transportation/mobility, and nature in a thoughtful way. Due to my advocacy on the State budget for funding for this program, nearly 1,000 new affordable homes in the communities that TreePeople serves have been built. But for this program, this new affordable housing stock would not have been on the market.

10. I have spent a substantial amount of work time engaged in these housing advocacy efforts. While our policy work ebbs and flows in connection with Federal, state, and local legislative and budget cycles, housing advocacy work accounts for about half of my overall work. . . . (Gonez Decl. ¶¶ 3-10.)

In addition, Gonez submitted a declaration from TreePeople’s Executive Director of Operations, Daniel Berger, Gonez’s direct supervisor. Berger provides a description of Gonez’s work on housing advocacy:

5. Recently, Manny [Gonez] participated in a workgroup assembled by The Nature Conservancy, a nationwide nonprofit organization to discuss and further flesh out what became Assembly Bill 68 Housing and Climate Solutions Act – a legislative measure that would require a local government to approve a proposed housing development pursuant to a streamlined, ministerial approval process if the development meets certain objective planning standards. This policy framework aims to establish climate-smart housing and development patterns across California.

7. . . . Manny [Gonez] has been a hands-on participant in two of three Transformative Climate Collaborative (TCC) projects that TreePeople leads as part of a broader coalition to invest in the just development of housing, community assets, and the natural environment in Watts, Riverside, and South Los Angeles.

Petitioner contends “[e]ven if Gonez were to argue that housing is a part of environmental policy, there is no evidence that housing is a ‘principal’ vocation or occupation for” Gonez. (Pet. ¶ 20.) The court disagrees.

Gonez’s Ballot Designation Worksheet, and the declarations of Gonez and Berger, demonstrate Gonez’s current position as Policy Director with TreePeople involves a substantial involvement of time and effort in housing advocacy—about half of Gonez’s work with TreePeople. At the time TreePeople hired Gonez he had a “decade of experience working on housing policy for housing non-profits and elected officials.”[4] (Gonez Decl. ¶ 3.)

Contrary to Petitioner’s assertion, the evidence does not show Gonez is a “policy director for an environmental organization, not a housing organization.” (Pet. ¶ 19) To the contrary, Gonez credibly testifies “greater, affordable, and sustainable housing, particularly in overlooked urban areas, is key to achieving both climate and environmental justice goals” and is a substantial part of his work at TreePeople. (Gonez Decl. ¶¶ 2-4.) Specifically, Gonez estimates that “housing advocacy work accounts for about half” of his work at TreePeople. (Gonez Decl. ¶ 10.)

Gonez’s immediate supervisor corroborates Gonez’s work-time estimate with the examples discussed earlier, and he attests Gonez’s “work overlaps the nexus between housing and sustainability to better inform TreePeople’s approach to statewide and local policy proposals.” (Berger Decl. ¶ 6.) The evidence preponderates Gonez’s housing advocacy work at TreePeople involves “a substantial involvement of time and effort such that the activity is one of the primary, main or leading professional, vocational or occupational endeavors of the candidate.” (Cal. Code of Regs., tit. 2, § 20714, subd. (b). City Elec. Code, § 306, subd. (h).) Accordingly, such housing advocacy work is a “principal” profession, vocation, or occupation of Gonez.

Petitioner also contends Gonez cannot use “advocate” in his ballot designation because “per the applicable regulations, ‘advocate’ is generic in nature and is not descriptive of a specific vocation or occupation.” (Pet. ¶ 18.) The argument is unpersuasive.

Title 2, section 20716 of the California Code of Regulations explains “Unacceptable Ballot Designations” and provides, in relevant part, as follows:

(b) The following types of activities are distinguished from professions, vocations and occupations and are not acceptable as ballot designations pursuant to Elections Code § 13107, subdivision (a)(3):

(3) Statuses: A status is a state, condition, social position or legal relation of the candidate to another person, persons or the community as a whole. A status is generic in nature and generally fails to identify with any particular specificity the manner by which the candidate earns his or her livelihood or spends the substantial majority of his or her time. Examples of a status include, but are not limited to, veteran, proponent, reformer, scholar, founder, philosopher, philanthropist, activist, patriot, taxpayer, concerned citizen, husband, wife, and the like. (Cal. Code of Regs., tit. 2, § 20716, subd. (b)(3).)

Gonez has not proposed a generic status with no specificity, such as “activist” or “advocate,” in his ballot designation. Rather, Gonez has proposed the designation “housing advocate,” which refers to a specific type of work or employment. Notably, candidates across the political spectrum in past recent elections have regularly been officially designated as various types of specified “advocates.” (See, e.g., Gonez RJN, Exh. A at 3, 7, 10, 11, 16, 22 [taxpayer’s advocate, seniors advocate, children’s advocate, veterans’ advocate, education advocate]; RJN, Exh. B at 2, 5, 15, 21, 25, 31, 32.)

Further, other candidates running in the March 2024 primary—including one of Gonez’s opponents—have proposed similar designations. (See Pet. Exh. A at 1, 2 [business housing advocate, civil arts advocate].) Petitioner cites no authority suggesting the specified designation “housing advocate,” or a similar designation that pairs a specific descriptor with the word “advocate,” is an improper ballot designation. In any event, at least in the case of “housing advocate,” which is a commonly known type of work and employment, the court concludes that such designation qualifies as a profession, vocation, or occupation within the meaning of the city and state elections laws.

In reply, Petitioner contends Gonez has not sufficiently demonstrated his work as a “housing advocate” includes “a substantial involvement of time and effort” or his is “primary, main or leading” part of his occupation. (Reply 1:8-9 [citing Cal. Code Regs., tit. 2, § 20714, subd. (b)].) Petitioner focuses on “a temporal element to the requirement” instead of the significance or importance of the work undertaken. (Reply 1:10-13.)

While Petitioner acknowledges Gonez’s evidence that about half of his work relates to housing advocacy, Petitioner argues “the volume of work is not dispositive of what constitutes a principal occupation, . . . .” (Reply 1:16-17.) Petitioner argues there must be an “associated time commitment” connected to the principal occupation.

Finally, Petitioner submits the Form 990 suggesting TreePeople’s mission is unrelated to housing. Petitioner quotes TreePeople’s statement on the Form 990 reporting its “mission or most significant activities” is “to inspire, engage and support people to take personal responsibility for the urban environment.” (Pet. RJN.) Petitioner also notes in TreePeople’s statement of Program Service Accomplishments housing is not mentioned. Based on the Form 990, Petitioner argues “it is simply not reconcilable that any principal occupation arising out of employment with TreePeople can be labeled a ‘housing advocate.’ ” (Reply 2:1-2.)

Fair consideration of the evidence before the court addresses what Petitioner labels as the temporal aspect of a principal occupation. Gonez attests he has “spent a substantial amount of work time engaged in these housing advocacy efforts.” (Gonez Decl. ¶ 10.) Immediately after discussing “work time,” he explains his “housing advocacy work accounts for about half my overall work.” (Gonez Dec. ¶ 10.) Taken together, the evidence supports a finding that about half of Gonez’s overall work time—that is, about 50 percent—is spent in “housing advocacy efforts.” (Gonez ¶ 10.)

Further, Gonez’s work history demonstrates TreePeople hired him because of his “decade of experience working on housing policy for housing non-profits and elected officials.” (Gonez Decl. ¶ 3.) Thus, Gonez’s background supports the housing advocacy work he describes doing for TreePeople.

The court acknowledges the Form 990. Preliminarily, the court notes the Form 990 is for 2021. Gonez attests he and his team at TreePeople “engaged in significant work as it pertains to housing advocacy” “[t]hroughout 2022 and 2023.” (Gonez Decl. ¶ 4.) The Form 990 is therefore not inconsistent with Gonez’s statements. The court also cannot discern from the evidence when Gonez was recruited by TreePeople and began working there. Finally, the Form 990 is not particularly persuasive as a document describing all of the work undertaken by TreePeople.

Based on the foregoing, the court finds the City Clerk correctly accepted Gonez’s ballot designation of “Housing Advocate/Environmentalist.” Petitioner has not demonstrated any “error, omission, or neglect” has occurred, or is about to occur, with respect to that ballot designation. Accordingly, the petition is DENIED.

[1] “The City’s primary nominating election has been consolidated with the Statewide elections administered locally by the Los Angeles County Registrar-Recorder/County Clerk.” (City Clerk Opposition 2:12-14.)

[2] The City’s Election Code has standards substantially similar to those contained in Elections Code section 13107, subdivision (a)(3) and the California Code of Regulations at title 2, section 20714. (See RJN Exh. 1; City Clerk Response 4:22-25; and City Election Code § 306, subdivisions (b), (g), (h).)

[3] The City Clerk’s response and Gonez’s opposition both submitted the Ballot Designation Worksheet for consideration by the court. Even though the Ballot Designation Worksheet is a public record and has been on file with City since November 7, 2023 (see Park Decl. ¶¶ 9-11, Exh. 3), Petitioner did include the relevant evidence in her petition or moving papers.

[4] In fact, Gonez attests TreePeople hired him for that reason. (Gonez Decl. ¶ 2.)