Judge: Walter P. Schwarm, Case: 30-2022-01262431, Date: 2022-08-02 Tentative Ruling

Motion No. 1:

Petitioner’s (People of the State of California ex rel. Schlesinger) Motion for Preliminary Injunction (Motion), filed as an Ex Parte Application on 7-13-22 under ROA No. 37, is DENIED.

The court DENIES Petitioner’s Request for Judicial Notice, filed on 7-13-22 under ROA No. 32, as immaterial to the court’s ruling as set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.)   

Code of Civil Procedure section 803 states, “An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise, or against any corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise, within this state. And the attorney-general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.”

The Motion states, “Defendants’ continued service without re-election is unlawful and continuing each day.  Their continued occupation of a public office, expenditure of public funds—including to defend themselves in this action—and actions making important policy decisions without the authorization of the voters is a continuing public harm.”  (Motion; 14:24-27.) Defendants (Ed Sachs, Wendy Bucknum, and Greg Raths) Opposition to Motion for Preliminary Injunction (Opposition), filed on 7-21-22 under ROA No. 60, asserts, “. . . Plaintiff is seeking a preliminary injunction to temporarily enjoin the Defendants’ exercise of a public office pending the determination of the Quo Warranto action. He has improperly blended his requested relief for a preliminary injunction into a Quo Warranto action, creating a dual hybrid . . .” (Opposition; 3:19-22.)

Sharpe v. City of Los Angeles (1934) 136 Cal.App. 732, 734–735 (Sharpe), states, “It is well established that equity ordinarily lacks jurisdiction to enjoin the appointment or removal of a public officer, and that injunction will not usually be granted to restrain an individual from exercising the duties of such office pending the determination of his legal right thereto. In other words, title to a public office may not be tried in a suit for injunction.” Rando v. Harris (2014) 228 Cal.App.4th 868, 875 (Rando), provides, “Quo warranto was a common law writ literally meaning ‘by what authority’ was a public office held or claimed. The crown instituted a formal inquiry into whether a subject was exercising a privilege illegally or had the right to occupy a public office. [Citations.] The quo warranto remedy is currently codified in section 803, and it is ‘the specific action by which one challenges “any person who usurps, intrudes into, or unlawfully holds or exercises any public office.” [Citation.] It is the exclusive remedy in cases where it is available. [Citation.] Title to an office cannot be tried by mandamus, injunction, writ of certiorari, or petition for declaratory relief. [Citations.]’ [Citation.]”

Petitioner disputes that the court lacks authority in a Quo Warranto action to issue a preliminary injunction to temporarily remove Defendants from office. In support of Petitioner’s Reply in Support of Motion for Preliminary Injunction (Reply), filed on 7-26-22 under ROA No. 64, Petitioner cites to Pughe v. Lyle (N.D. Cal. 1935) 10 F. Supp. 245, 248, Save the Welwood Murray Mem'l Libr. Com. v. City Council (1989) 215 Cal.App.3d 1003, 1006, and Loftis v. Superior Ct. in & for Kings Cnty. (1938) 25 Cal.App.2d 346, 354 (Reply; 9:5-10:8.) None of these cases involved actions for quo warranty relief of removal from office where a preliminary injunction was granted.

Based on Sharpe and Rando, Quo Warranto is the exclusive remedy, and the court does not have the authority to grant injunctive relief in a Quo Warranto action to prevent the exercise of a public office.  Therefore the court DENIES Petitioner’s (People of the State of California ex rel. Schlesinger) Motion for Preliminary Injunction filed as an Ex Parte Application on 7-13-22 under ROA No. 37.

Defendants are to give notice.

Motion No. 2:

Defendants’ (Ed Sachs, Wendy Bucknum, and Greg Raths) Demurrer and Motion to Dismiss (Motion), filed on 7-11-22 under ROA No. 41, is OVERRULED and DENIED.

Defendants challenge the Verified Compliant Quo Warranto (Complaint), filed by Petitioner (Michael Schlesinger) on 5-26-22 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (d). (Motion; 2:10-16.) 

The Motion states, “The City is not a party to this action and should be because the requested relief in the Complaint, if granted, will remove three councilmembers from office, destroying City’s quorum necessary for City to conduct business. This will severely impair and interfere with City’s ability to function. While Plaintiff does identify City as an interested party in paragraph 5, Plaintiff does not explain why City is not a party to the action. The law is unsettled as to whether two members of a five-member city council may be authorized to fill a vacancy despite the lack of quorum.” (Motion; 7:5-10.)

Code of Civil Procedure section 389, subdivision (a), states, “(a) 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. If he has not been so joined, the court shall order that he be made a party.”

Tracy Press, Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1298 (Tracy), states: “ ‘The controlling test for determining whether a person is an indispensable party is, “Where the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party. [Citation.]” [Citation.] More recently, the same rule is stated, ‘A person is an indispensable party if his or her rights must necessarily be affected by the judgment. [Citations.]” [Citation.]’ [Citation.]”

Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808-809 (Olszewski), states, “Similarly, defendant’s contention that the Court of Appeal erred by deciding the federal preemption issue without making the State of California a party to this action must be rejected. Code of Civil Procedure section 389, subdivision (a) states in relevant part that ‘[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 . . . in his absence complete relief cannot be accorded among those already parties. . . .’ Thus, ‘[a] person is an indispensable party [only] when the judgment to be rendered necessarily must affect his rights.’ [Citation.] In this case, the court could grant the relief requested by plaintiff without injuring or affecting the rights of the State of California. Plaintiff did not assert an imbedded claim for declaratory relief seeking to invalidate section 14124.791. [Citation.] Rather, she sought to invalidate the liens filed by defendants pursuant to that section. The State of California had no interest in these liens and could not recover on them. The fact that an adverse ruling against defendants may have a financial impact on the state or require a finding that federal law preempts a California statute does not make the state an indispensable party. (See Hartenstine v. Superior Court (1987) 196 Cal.App.3d 206, 222, 241 Cal.Rptr. 756 [finding that the State of California was not an indispensable party despite its ‘interest in enforcing its laws’].) (Footnote 4 omitted.)

The Quo Warranto action is based on allegations that Defendants “. . . usurped, intruded into, and unlawfully continue[] to hold the office of City Council Member for the City of Mission Viejo.” (Complaint, ¶¶ 32, 37, and 42.) If the court finds that all three Defendants unlawfully hold the office of City Council Members, the City may not have a quorum. The potential removal of Defendants may impact the City’s operations, but this impact does not make the City an indispensable party.  Defendants have not shown that the City has a legal right that may be affected by the action sufficient to make it an indispensable party.  Here, a potential judgment in favor of Petitioner (Michael Schlesinger) would result in the removal of Defendants.  The City is not an indispensable party because the impact on the City’s operations does not prevent the court from providing complete relief in this action.

Therefore, the court OVERRULES and DENIES Defendants’ (Ed Sachs, Wendy Bucknum, and Greg Raths) Demurrer and Motion to Dismiss filed on 7-11-22 under ROA No. 41.

Petitioner (Michael Schlesinger) is to give notice.