Case Name: Charles A. Rogers v. Superior Court of Santa Clara County, et al.
Case No.: 16-CV-302740

This action for a writ of administrative mandate arises out of the rejection of a quo warranto application. According to the allegations of the petition (“Petition”), petitioner Charles Rogers (“Petitioner”), who is self-represented, is an incarcerated convicted felon who filed a quo warranto application with the Attorney General of California. (See Petition at p. 1, Exs. A, B.) Petitioner requested leave to file a suit in quo warranto against the judge who sentenced him and the former executive director of the Sana Clara County Superior Court for failing to file their oaths of office with the Secretary of State. (Id. at Exs. A-D.) He sought to invalidate the judge’s and executive director’s official actions in convicting and sentencing him. (Ibid.) The Attorney General reviewed and denied his application on the bases that his quo warranto filings were not prepared by a licensed attorney as required by California Code of Regulations, title 11, section 2, and the relief he requested was not available in quo warranto. (Id. at Ex. D.) Determining that decision to be unwarranted, Petitioner filed this action pursuant to Code of Civil Procedure section 1094.5, asking this Court to reverse the Attorney General’s decision denying him leave to sue in quo warranto.

Currently before the Court is the demurrer to the Petition by respondent Xavier Becerra, the Attorney General of California (“Respondent”) on the ground of failure to state sufficient facts to constitute a cause of action. Petitioner opposes the demurrer.

The general rules of pleading and practice in civil actions generally apply to mandamus proceedings. (Code Civ. Proc., § 1109.) “A demurrer tests only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) In reviewing the sufficiency of a petition against a demurrer, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Chung Kao v. California Department of Corrections and Rehabilitation (2016) 244 Cal.App.4th 1326, 1331.)

As a preliminary matter, Respondent observes that while the present petition is denominated as a petition for administrative mandate, Petitioner does not meet the requirement for administrative mandate under Code Civil Procedure section 1094.5. He contends this is a petition for traditional mandate under Code of Civil Procedure section 1085. Petitioner does not directly respond to this argument. He merely states in a heading of his opposition that “administrative mandamus must be available because [Respondent] is an administrative agency who abused its discretion” and then cites general legal principles governing petitions for writ of administrative mandate under Code of Civil Procedure section 1094.5.

Whether a writ of mandate is made under Code of Civil Procedure section 1085 or 1094.5 is significant as it determines the applicable standard of review. For writs of administrative mandate, a court exercises independent judgment and “examines whether the decision of the [agency] is supported by the findings and whether the findings are supported by the evidence in the administrative record.” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45; Code Civ. Proc., § 1094.5, subds. (b), (c).) By contrast, in connection with a writ of traditional mandate, a court does not “substitute its discretion for the discretion properly vested in the administrative agency.” (Gilbert v. State of California (1990) 218 Cal.App.3d 234, 241.) The court can only compel a respondent to act when it “has a clear, present and usually ministerial duty and the petitioner has a clear, present and beneficial right to performance of that duty.” (Ibid.)

“Code of Civil Procedure section 1094.5, subdivision (a), provides administrative mandamus is available to review a decision made by an agency as a result of a proceeding in which by law (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in determining the facts is vested in the agency.” (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 520-521 [internal citations omitted].) Here, Petitioner challenges Respondent’s decision in denying leave to bring a quo warranto action. Code of Civil Procedure section 803, governing quo warranto actions, provides that an Attorney General, upon his or her own information or the complaint of a private party, has discretion to bring a quo warranto action. (See Code Civ. Proc., § 803.) Exercising discretion to bring a quo warranto action does not require a hearing where evidence is taken and facts are determined, and thus does not fall under the purview of Code of Civil Procedure section 1094.5. (See ibid.)
Additionally, courts have routinely reviewed an Attorney General’s exercise of discretion in denying quo warranto applications by means of a petition for writ of traditional mandamus. (See Rando v. Harris (2014) 228 Cal.App.4th 868, 876 (“Rando”); see also International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 696-697; Lamb v. Webb (1907) 151 Cal. 451, 452-453.) Thus, even though Petitioner labels the Petition as one for writ of administrative mandate, it must be treated as a petition for writ of traditional mandate.

Turning to the merits of the demurrer, Respondent argues he has broad discretion in determining when to initiate a quo warranto action and, as such, a petition for writ of mandate is not a proper procedure to challenge his decision. He further contends that even if it is appropriate to review the decision denying Petitioner leave to sue, his exercise of discretion does not constitute an abuse of discretion that is extreme and clearly indefensible. Petitioner does not directly respond to this argument, but maintains that the complaint filed with Respondent was not defective.

With respect to Respondent’s first argument, while an Attorney General “enjoys considerable discretion whether to bring any particular quo warranto action and may exercise that discretion to refuse to sue where the issue is debatable,” courts can review an Attorney General’s exercise of discretion in denying quo warranto applications via a petition for writ of traditional mandamus. (Rando, supra, 228 Cal.App.4th at pp. 875-876 [internal quotations marks and citations omitted]; see also International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d at pp. 696-697; Lamb v. Webb, supra, 151 Cal. 451 at pp. 454.) “The Attorney General’s discretion under section 803 is not wholly beyond the trial court’s control. As explained in Lamb v. Webb (1907) 151 Cal. 451, 454, the trial court’s power ‘to compel [the Attorney General] to violate his own judgment by ordering him to grant leave to commence a suit, against his own conviction and conscientious belief that such leave should not be given, should be exercised only where the abuse of discretion by the attorney-general in refusing the leave is extreme and clearly indefensible.’” (Id. at p. 875; see City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 645, 648 [“Appellant must demonstrate that the Attorney General’s refusal to sue was an extreme and clearly indefensible abuse of his discretion.”].) As such, it is appropriate to review his decision in refusing to grant Petitioner leave to sue in quo warranto by petition for writ of mandate.

With that said, Respondent is correct that Petitioner has not alleged any conduct that constitutes as an “extreme and clearly indefensible” abuse of discretion. As alleged in the Petition, Respondent refused leave to bring the quo warranto action because it was facially deficient. Specifically, he explained in his letter to Petitioner that the application was not prepared by a licensed attorney in accordance with California Code of Regulations, title 11, section 2, and the relief he requested— invalidation of his conviction and sentence— was not available in quo warranto due to the de facto officer doctrine. (Petition at Ex. D.)

Regarding whether the application must be prepared by a licensed attorney, California Code of Regulations, title 11, section 2 provides that in an application for leave to sue, the proposed complaint must contain, among other things, a space for the signature of the attorney for the relator. This provision could be construed as requiring a licensed attorney to prepare the quo warranto application. Thus, denying Petitioner’s application on this basis would not constitute an extreme and clearly indefensible abuse of discretion.

The Court also finds that Respondent’s rejection of Petitioner’s application on the ground the de facto officer doctrine would prevent him from seeking the relief requested is not an extreme and clearly indefensible abuse of discretion as a matter of law. A de facto officer is “one who actually assumed and exercise the duties of a public officer under color of a known and authorized appointment, but who has failed to comply with all of the requirements and conditions by law prescribed as a precedent to the performance of the duties of the office.” (Miller v. Filter (2007) 150 Cal.App.4th 652, 662.) “Actions of a de facto officer exercising the functions of the office lawfully and with the acquiescence of the public . . . within the scope and by apparent authority of office . . . [are] valid and binding as if he were the officer legally . . . qualified for the office and in full possession of it.” (Ibid. [internal citations and quotation marks removed].) Here, it is feasible the de facto officer doctrine would apply. In that case, Petitioner’s conviction or sentence would still stand because the judge and former executive director’s official acts would not be nullified. Since the relief he requested would not be available to him, causing his action to fail, the denial of his application for leave to sue on this basis also would not constitute an extreme and clearly indefensible abuse of discretion.

In conclusion, based on the allegations in the pleading, there is no basis to conclude that Respondent committed an extreme and indefensible abuse of discretion by not granting leave to initiate a quo warranto action. While Petitioner requests leave to amend, he does not show in what manner he can amend the Petition or how any amendment would change the legal effect of the pleading. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; also see Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112, fn. 8.) In any event, it is clear that Petitioner cannot allege facts sufficient to constitute a cause of action against Respondent as his denial was not an extreme and clearly indefensible abuse of discretion. Accordingly, the demurrer to the Petition is SUSTAINED without leave to amend.