Filed 6/24/20 Wear v. White CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Trinity)

—-

MICHAEL WEAR,

Plaintiff and Appellant,

v.

SHANNA S. WHITE, as County Clerk, etc.,

Defendant and Respondent.

C088560

(Super. Ct. No. 17CV101)

Plaintiff Michael Wear filed an election contest (Elec. Code, § 16400) to challenge a local measure for school bonds that passed with 65 percent, well in excess of the 55 percent requirement. He named only defendant Shanna S. White in her capacity as county clerk (among her other duties), and appended a host of allegations not having anything to do with that capacity (which the trial court ultimately found unsupported).

The trial court had earlier limited Wear’s case to the claim that the bond measure was invalid because it was in fact the only item on the ballot in the regularly scheduled county election in the school district, and to other illegality in the conduct of the election. Specifically, in denying what it characterized as White’s motion for summary judgment, the trial court ruled that the single issue to be determined at trial was whether “the election process violated Education Code [section] 15266[, subdivision] (a) and generally that the election process was unlawful.” After a nonjury trial, citing what it found to be controlling authority, the trial court concluded in a “Minute Order Ruling on Submitted Matter” that the bond measure was originally scheduled to be on the ballot with elections for seats on the school district’s board, and the fact that fewer candidates subsequently filed than there were open seats (leading to a cancellation of the election for board seats) did not vitiate the legality of the bond measure’s presence on the ballot. The trial court also found an absence of any proof with respect to the remainder of the issues raised in Wear’s election challenge.

Wear appeals, in briefing that roams far and wide from the central issue. Missing from his briefing (or White’s) is any reference to the appealability of the trial court’s order/ruling in favor of White, from which Wear appealed.

We directed the parties to address in supplemental briefing the following facts. The trial court’s remarks at the end of the trial referenced the requirement that it issue a statement of decision within 10 days. (§ 16603 [“within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law . . . . The judgment shall be entered immediately thereafter.”].) The signed written order rules in favor of White, and does not direct White to prepare a judgment, but it also does not include any disposition of the election contest. As a result, we asked the parties why this Court should exercise its discretion to treat what appears to be only a ruling as the final judgment in this matter, given that the operative statute requires a separate judgment entered “immediately thereafter.” (See Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904.)

Unsurprisingly, White agrees that we should not treat the appeal as being from a judgment in our discretion, and should instead dismiss it. Wear’s supplemental briefing runs far afield from the question presented, until its final page where it simply cites section 16603 without addressing the issue of the need for a separate judgment as required under the statute.

We conclude there are not any circumstances to warrant our treating this order and ruling by the trial court as a judgment, nor Wear’s appeal as being premature from any subsequent judgment, and will dismiss the appeal. In coming to this resolution, we offer the following observations to Wear.

Wear’s opening brief–disregarding new matters in his reply brief (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7)–poses only two legal issues: (1) did the school district’s resolution for a bond measure “qualify” under the state charter and statutes, and (2) did White err in light of statutory proscriptions against placing it on the ballot as the “sole” issue. Wear has thus forfeited any challenge to the trial court’s finding that he did not produce proof in support of his remaining contentions. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8 (Ben C.); Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177.)

His first point cites the constitutional provision for a 55 percent threshold to pass a bond measure for school facilities or the acquisition of real property, asserting this 2017 measure did not satisfy the criteria under this provision requiring (in material part) that the bond measure specify that the proceeds are to be limited in this fashion, and listing the specific facilities or projects to be funded. (Cal. Const., art. XIII A, § 1, subd. (b)(3), (b)(3)(A), (b)(3)(B).) Wear also cites various provisions of the Education Code. What is notably missing as he again runs far afield on all sorts of matters is any argument that would connect these various legal provisions specifically with any supposed deficiency in the bond measure, or any failing on the part of the sole defendant in this case in placing the measure on the ballot because of these deficiencies. (Ben C., supra, 40 Cal.4th at p. 544, fn. 8.) He also cannot present a lengthy statement of facts, and then fail to make any further connection of the pertinent ones in the course of his argument regarding the deficiencies of the bond measure at issue or a breached duty on the part of White. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16.) Moreover, Wear does not explain how any of this is pertinent in light of the pretrial order limiting the issue at trial to compliance with Education Code section 15266, the basis of the trial court’s ruling (that did not include this constitutional issue at all), which is what he is supposed to be challenging on appeal.

This brings us to Wear’s second point. The trial court cited Silicon Valley Taxpayers’ Assn. v. Garner (2013) 216 Cal.App.4th 402 (Silicon Valley) in concluding that the bond measure was not the sole issue presented to the voters in the school district in a regularly scheduled election in violation of Education Code section 15266. The only reference in Wear’s argument under this point directed to this question seems to assert that “[t]he Elections Code appears to require the condition of another election covering . . . the boundaries of the [school] district as a necessary prerequisite.” (Italics added.) His only effort to distinguish Silicon Valley is to suggest that it involved an initiative.

To cite Wear’s brief for the undisputed facts on which he relies, in June 2017 the school district issued resolutions ordering an election on the issuance of school bonds and the election of board members, and requesting the consolidation with other county elections occurring in November 2017. We are not concerned with the process thereafter because Wear does not present any cogent argument how this is embraced within the validity of the election under Education Code section 15266 or demonstrations of unlawfulness of the conduct of the election otherwise (which the trial court found unproven), the sole issues under which he was allowed to proceed to trial. There were many other county votes actually conducted in the same election in other school and special districts. However, White cancelled the election for board seats in the school district because there were fewer candidates than vacant seats, who were as a result appointed without the need to face a vote.

Silicon Valley involves a different provision of the state charter. However, it parallels Education Code section 15266 in that it requires the vote on a county-wide tax increase to be at a “regularly scheduled” local election for members of the local agency’s body. (Silicon Valley, supra, 216 Cal.App.4th at p. 404, citing Cal. Const., art. XIII C, § 2, subd. (b).) The three seats on the county’s board of supervisors were uncontested after the primary election. As a result, the fall general election did not include any vote on the board’s seats. In the interim, the board had consolidated a vote on the county-wide tax increase with the fall general election. The plaintiffs had argued that in fact the general election did not include votes on the board members, and therefore the tax increase measure was not properly part of the ballot. (Id. at pp. 404-405.) The court concluded that “ ‘regularly scheduled’ ” should be taken in its ordinary sense in that the election of board members would otherwise have taken place but for the primary results. It was not to be interpreted as “ ‘actually scheduled.’ ” (Id. at pp. 408, 410.) Nothing in the court’s reasoning rests on the status of the measure as an initiative. Consequently, that is not part of the ratio decidendi of the opinion. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1168.) We cannot discern on Wear’s present briefing how this case would not control in the present matter, such that the fact that no other issue appeared within the school district boundaries as a result of circumstances outside the election process (i.e., the lack of sufficient candidates) did not prevent the county’s November 2017 election from being considered “regularly scheduled” within the school district boundaries on the bond measure.

Therefore, given the weak (if not nonexistent) reeds on which Wear’s appeal appears to rest, we will not exercise our discretion to consider the order/ruling to be an appealable judgment. Although we do not rule on the merits, we have explained the reasons why we decline to exercise our discretion.

DISPOSITION

The appeal is dismissed. Defendant shall recover her costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

BUTZ, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.