Cnty. of San Bernardino v. Superior Court of San Bernardino Cnty.

77 Cal.App.5th 1100

293 Cal.Rptr.3d 190

COUNTY OF SAN BERNARDINO et al., Petitioners,

v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent;

The Red Brennan Group et al., Real Parties in Interest.

E077884

Court of Appeal, Fourth District, Division 2, California.

Filed April 27, 2022

Tom Bunton and Steven O'Neill, County Counsel and Laura L. Crane, Deputy County Counsel, for Petitioners.

No appearance for Respondent.

The Red Brennan Group and Aaron D. Burden, for Real Parties in Interest.

OPINION

CODRINGTON, J.

I. INTRODUCTION

This action arises from the San Bernardino County registrar of voters (ROV) initially miscalculating the number of signatures needed in support of plaintiffs and real parties in interest's (RPI)¹ initiative petition to repeal a special tax associated with a fire protection zone. The ROV told RPI the incorrect number, resulting in RPI incurring unnecessary costs in obtaining far more signatures than were required.

Defendants and Petitioners County of San Bernardino and its ROV, Bob Page, (collectively, the County) petition for a writ of mandate directing respondent court to vacate its order overruling the County's demurrer and to enter an order sustaining the demurrer without leave to amend. The County contends that, when RPI requested the County to inform it of the number of signatures required for its initiative petition, the County did not owe RPI any statutory or constitutional duty to provide the information when requested. The County further argues it is immune from liability for communicating to RPI the incorrect number under Government Code sections 818.8 and 822.2.

We agree that under Government Code sections 815 and 815.6, the County is not subject to liability because there was no breach of any statutory or constitutional duty. In addition, even if the County owed RPI such a duty, the County was immune from liability under Government Code sections 818.8 and 822.2. We therefore conclude the trial court erred in overruling the County's demurrer. The County's peremptory writ of mandate thus shall issue as requested, directing respondent court to vacate its order overruling the County's demurrer and enter a new order sustaining the demurrer without leave to amend.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

RPI's second amended complaint for damages (SAC) includes two causes of action, both brought under the California Government Claims Act ( Gov. Code, § 810, et seq. ) against the County of San Bernardino and its ROV. RPI's first cause of action is entitled, "Liability for Injury ( Gov. Code, § 815 )" and the second cause of action is entitled, "Liability for Failure to Discharge Statutory Duty ( Gov. Code, § 815.6 )." Attached to the SAC are 20 exhibits incorporated in the SAC substantiating RIP's factual allegations.

RPI alleges in its first cause of action that the County owed RPI a mandatory statutory duty under Elections Code section 9107, to ascertain and inform RPI of the correct number of signatures required for RPI's initiative to qualify on the ballot. The County allegedly told RPI in August 2019, that the number of required initiative petition signatures was 26,183. In February 2020, after RPI submitted its initiative with supporting signatures, the County ROV conceded the correct number of required signatures was only 8,110. RPI alleged that the County breached its duty under Elections Code section 9107 to ascertain the number of signatures required for RPI's initiative petition, resulting in RPI needlessly spending more than $250,000 to collect the unnecessary signatures.

RPI alleges in its second cause of action that the County owed RPI a mandatory duty to ensure the signature requirement for RPI's initiative petition was consistent with the state signature requirement ( Elec. Code, § 9035 ), as mandated in Article XIII C, section 3 of the California Constitution. The County allegedly imposed an initial signature requirement of more than three times the State-required number of signatures of 8,110, and did not inform RPI of the correct number until after RPI had submitted its initiative petition with 32,017 signatures. RPI alleges that without being informed of the correct signature requirement, RPI could not exercise its constitutional right to file an initiative petition. The County allegedly breached its duties under Elections Code section 9107 and Article XIII C, section 3 of the State Constitution by failing to ascertain the correct number of signatures required to qualify RPI's initiative for the ballot. This resulted in RPI incurring $250,000 in damages from gathering unnecessary signatures.

B. The County's Demurrer

The County filed a general demurrer to RPI's SAC pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the grounds (1) RPI failed to allege liability based on either a violation of Elections Code section 9107 or Article XIII C, section 3 of the State Constitution and (2) the SAC is barred by misrepresentation immunity under Government Code sections 818.8 and 822.2. RPI filed opposition to the County's demurrer.

C. The Trial Court's Order

On June 30, 2021, the trial court heard the County's demurrer and overruled it. The trial court incorporated in its order the written tentative ruling, in which the trial court concluded that Elections Code section 9107 and Article XIII C, section 3 of the State Constitution did not require the ROV to ascertain the correct number of signatures in advance of RPI filing its initiative petition. The court also concluded neither Elections Code section 9107 nor Article XIII C, section 3 of the State Constitution stated when or to whom the required number of signatures must be communicated, and the constitution merely prohibited the Legislature and local government charters from imposing a signature requirement higher than the requirement applicable to statewide statutory initiatives. The trial court noted RPI did not assert its initiative was improperly rejected.

The trial court, however, concluded it could not determine whether Elections Code section 9107 and Article XIII C, section 3 of the State Constitution required the County to provide initiative proponents, such as RPI, with an accurate signature number early in the initiative process. In conclusion, the trial court stated in its written tentative ruling adopted as the court's final ruling that it was overruling the demurrer because "Presently, the court cannot make this determination on the limited record before it, specifically, the lack of discussion or analysis of Elections Code section 9107 and California Constitution, Article XIII C, section 3. Moreover, the parties' analyses do not address these questions, and the issue of proper interpretation in any depth. And such a determination is required to determine whether a duty is owed, or not, and whether it is a mandatory duty, or not. Moreover, the determination of a duty, whether general or mandatory, and to whom it is owed, is central to an analysis of the sufficiency of the Second Amended Complaint."

III. DISCUSSION

A. Availability of Writ Relief

"An order overruling a demurrer is not directly appealable, but may be reviewed on appeal from the final judgment. [Citation.] Appeal is presumed to be an adequate remedy and writ review is rarely granted unless a significant issue of law is raised, or resolution of the issue would result in a final disposition as to the petitioner. [Citation.]" ( Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182, 123 Cal.Rptr.2d 637.)

In the instant case, writ review is warranted for both reasons. The petition raises the first-impression issue of whether the County has a statutory duty under either Elections Code section 9107 or Article XIII C, section 3 of the State Constitution to calculate the number of initiative signatures required and inform an initiative proponent of that number whenever requested by the initiative proponent before submitting the initiative petition with signatures. There is also an issue of first impression as to whether, if there is such a duty, the County and its employees are immune from liability under Government Code sections 818.8 and 822.2. Resolution of these issues in the County's favor will result in a final disposition as to the County and its employees.

B. Standard of Review

"The standard of review for an order overruling a demurrer is de novo. The reviewing court accepts as true all facts properly pleaded in the complaint in order to determine whether the demurrer should be overruled. [Citation.] A general demurrer will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’ [Citation.] Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. [Citation.]" ( Casterson v. Superior Court, supra , 101 Cal.App.4th at pp. 182-183, 123 Cal.Rptr.2d 637.) "Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer." ( City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800, 107 Cal.Rptr.2d 710 ; Qualcomm, Inc. v. Certain Underwriters at Lloyd's, London (2008) 161 Cal.App.4th 184, 191, 73 Cal.Rptr.3d 770.)

In the present case, we must determine whether the affirmative defense of misrepresentation immunity necessarily bars RPI's claims against the County. We must also determine whether, as a matter of law, the County owed RPI any alleged statutory or constitutional duty that was breached.

C. Public Entity Liability

Under the California Government Claims Act, all government tort liability must be based on statute. ( Gov. Code, § 810, et seq. ) " Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the...