Case Number: BC512736 Hearing Date: May 14, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Wednesday, May 14, 2014
Calendar No: 10
Case Name: Soliz, et al. v. Santa Clarita Community College District
Case No.: BC512736
Motion: Motion for Summary Judgment
Moving Party: Defendant Santa Clarita Community College District
Opposing Party: Plaintiffs Jim Soliz and Rosemarie Sanchez-Fraser
Notice: OK

Tentative Ruling: Motion for summary judgment is denied.
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Background –
On 6/20/13, Plaintiffs Jim Soliz and Rosemarie Sanchez-Fraser filed this action against Defendant Santa Clarita Community College District alleging that Defendant’s “at-large” voting process discriminates against Defendant’s Latino population in violation of the California Voting Rights Act of 2001 (“CVRA” Elections Code § 14025 et seq.). Trial is set for 6/2/14.

Motion for Summary Judgment –
Defendant moves for summary judgment. It is undisputed that Defendant is governed by a five-member board of trustees, who are elected through at-large elections in November of odd-numbered years following the presidential and gubernatorial general elections. Opp’n Sep. Statement [“POSS”] ¶¶ 1-6.

1. CVRA
At-large elections may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election. Elections Code § 14027. In this case, Plaintiffs must establish that the at-large elections results in racially polarized voting (“RPV”) for elections of the board of trustees or in elections incorporating other electoral choices. Elections Code § 14028(a).

RPV is defined as a difference in the choice of candidates or other electoral choices preferred by voters in a protected class with the choice preferred by voters in the rest of the electorate. Elections Code § 14026(e). RPV is determined from examining results of elections in which at least one candidate is a member of a protect class or elections involving ballot measures, or other electoral choices that affect the rights and privileges of members of a protected class. Elections Code § 14028(b).

2. Latino Candidates
It is undisputed that since 1993, no Latino candidate has run for the board of trustees. POSS ¶ 21. Defendant argues that this results in the board elections being irrelevant. The Court disagrees. The Supreme Court has rejected this argument, noting that the race of the candidate is irrelevant because the focus of RPV is the status of the candidate as the preferred choice of a particular protected class. Thornburg v. Gingles (1986) 478 U.S. 30, 67-68; see also Westwego Citizens for Better Government v. City of Westwego (5th Cir. 1989) 872 F.2d 1201, 1208-9.

3. Impairment
Defendant argues that Plaintiffs must show impairment by establishing the potential to elect their preferred choices under a different electoral system. See Reply p. 3:6-7; see also Thornburg, 478 U.S. at 51 n.17. This is not consistent with the CVRA. Impairment is established where the bloc voting majority usually defeats the preference of the minority protected class (see Johnson v. De Grandy (1994) 512 U.S. 997, 1010-12): under the CVRA, impairment occurs when the protected class cannot elect its preferred choices or cannot influence the outcome of an election (Elections Code § 14027).

Therefore, Defendant’s argument that it is impossible to draw a contiguous trustee area of substantially equal population in which Latinos comprise a majority or more than 29% of the voting age population (Def.’s Separate Statement [“DSS”] ¶¶ 77-78) is not dispositive of establishing impairment under the CVRA. See Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 669. Notably, there are various remedies available for a violation of the CVRA (Elections Code § 14029; Sanchez, 145 Cal.App.4th at 670) and geographic compactness or concentration is only a factor in determining an appropriate remedy (Elections Code § 14028(c)). The appropriateness of these remedies is not properly raised on this motion.

4. Expert Analysis
The determination of a violation of the CVRA requires expert analysis concerning election data. See, e.g., Benavidez v. City of Irving (N.D. Tex. 2009) 638 F.Supp.2d 709, 723 (citing Thornburg, 478 U.S. at 53 n.20). Both parties have submitted declarations from experts analyzing elections data: Defendant relies on Jonathan N. Katz, Ph.D. [Def’s App’x of Evid. Ex. M] and Plaintiffs rely on J. Morgan Kousser, Ph.D. In addition, the Court notes there is evidence that Defendant retained a consultant to analyze RPV which resulted in the conclusion of RPV. See Paul Mitchell Depo. p. 55:3-57:22 [Shenkman Decl. ¶¶ 2-3, Ex. 2], Ex. D p. 18 [Shenkman Decl. Ex. 2 p. DEF000033].

Defendant objects to the report and deposition of Paul Mitchell and to the declaration of Dr. Kousser. The objections are sustained. As to Mitchell, there is no evidence submitted for his qualifications for his testimony. As to Dr. Kousser, Plaintiffs fail to submit evidence to support the data upon which Dr. Kousser’s declaration is based.

However, the Court notes that Dr. Katz’ conclusion of no statistically significant evidence of RPV is based on an examination of the “limited number of relevant elections” which severely limits the validity of statistic inferences. Katz Decl. [Def.’s App’x of Evid. Ex. M] ¶ 3; see also Katz Report [Katz Decl. Ex. A] p. 5-6 (considering relevant elections as those with Latino candidates). The focus on Latino candidates, which the Court has determined to be irrelevant, renders Dr. Katz’ conclusion insufficient to carry Defendant’s initial burden to establish that Plaintiffs’ cannot demonstrate RPV. The parties’ arguments as to whether the data and conclusions are probative or reliable really seek the Court to evaluate and weigh the evidence at the summary judgment stage, which is not appropriate.

5. Other Evidentiary Issues
Defendant objects to exhibits attached to the declaration of Kevin I. Shenkman: Objection Nos. 2-4 and 6-11 are sustained; remainder overruled.

The Court did not consider Defendant’s “responses to Plaintiffs’ objections” to Dr. Katz’ declaration because although Plaintiffs disputed the probative value of Dr. Katz’ conclusions, Plaintiffs did not submit objections pursuant to CRC 3.1354. The Court also did not consider Defendant’s reply declarations, which sought to respond to Plaintiffs’ criticisms of Dr. Katz’ conclusions and to support Defendant’s disputes as to the probative value of Plaintiffs’ evidence.

Lastly, Defendant requested judicial notice of the election results for Defendant and the William S. Hart Union School District (which shares the same population and most of the same territory as Defendant (POSS ¶ 47)), the election results for the 2010 election for superintendent of public instruction, the Complaint, and documents from the United States Census Bureau concerning Spanish surnames. The RJN is granted.

Ruling –
The motion for summary judgment is denied.