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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SACRAMENTO




GINA GLEASON,

v.

DEBRA BOWEN, in her official
capacity as Secretary of State, and
DOES 1 through 100

Case Number: 34-2014-80001786

TENTATIVE RULING RE: DEMURRER
AND MOTION TO STRIKE

Date: September 26, 2014
Time: 11:00 a.m.
Dept.: 29
J udge: Timothy M. Frawley

Proceeding: Demurrer and Motion to Strike
Tentative Ruling: Granted in Part and Denied in Part


Respondent J ohn Arntz, in his official capacity as Director of Elections of the City and
County of San Francisco, demurs to, or in the alternative, moves to strike paragraphs
12, 13, 14, 15, and 16 of the Amended Petition for Writ of Mandate filed by Petitioner
Gina Gleason on the ground the allegations contained therein are legally defective on
their face. The court shall grant the motion to strike in part, and deny the motion to
strike in part. The court shall overrule the demurrer.

Background Facts and Procedure

Petitioner is the proponent of Referendum No. 1598, which seeks to overturn Assembly
Bill 1266. Assembly Bill 1266 is a statute requiring school districts to allow transgender
students to participate in sex-segregated school programs and activities, including
athletic teams and competitions, and use school facilities, consistent with their gender
identity, irrespective of the gender listed on student records. Assembly Bill 1266 was
passed and signed by the Governor on August 12, 2013. Shortly thereafter, Petitioner
initiated the process to place a referendum of Assembly Bill 1266 on the ballot.
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To qualify for the ballot, a referendum petition must have the signatures of at least five
percent of the number of votes for candidates for Governor in the last gubernatorial
election. (Cal. Const. art. II, 9(b).) In this case, the California Secretary of State
determined that 504,760 valid qualifying signatures are required for Referendum No.
1598 to qualify for the ballot.

Petitioner alleges that she submitted over 620,000 signatures in support of Referendum
No. 1598. However, after verification by county registrars, the Secretary of State
announced only 487,484 signatures were valid qualifying signatures. Thus, the petition
fell 17,276 signatures short of the 504,760 needed to quality for the ballot.

Petitioner filed this writ proceeding challenging the Secretary of States refusal to certify
the Referendum for the ballot. The Amended Petition alleges that the county registrars
unlawfully disqualified or failed to tally more than 17,276 signatures.

The Amended Petition alleges that county registrars committed several types of errors
during the signature verification process. Four of those alleged errors are at issue here.

First, Petitioner alleges in Paragraph 12 that county registrars erred by disqualifying
signatures because the petition signer listed a non-matching address within the same
voting precinct. Petitioner contends that as long as the address on the petition is within
the same voting precinct as the address on the voter registration affidavit, a registrar
cannot disqualify a signature because the two addresses are different.

Second, Petitioner alleges in Paragraph 13 of the Amended Petition that county
registrars erred by disqualifying signatures because the address on the petition
contained minor and obvious transcription errors.

Third, Petitioner alleges in Paragraphs 14 and 15 that county registrars erred by
disqualifying signatures of disabled voters who used a pre-printed address or allowed
someone else to assist in writing the voters name or address.

Fourth, Petitioner alleges in Paragraph 16 that county registrars erred by disqualifying
signatures of non-disabled voters who allowed someone else to fill in the voters
address.

Respondent contends that all of the allegations in Paragraphs 12 through 16 are false
as a matter of law, and therefore the court should sustain its demurrer or, in the
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alternative, strike those allegations from the Amended Petition. The county registrars
join in Respondents demurrer and motion to strike.

Petitioner argues that neither a demurrer nor a motion to strike is the proper vehicle to
challenge the legal sufficiency of the allegations in Paragraphs 12 through 16. Further,
Petitioner contends, Respondents legal arguments lack merit.

Discussion

The initial question presented is whether Respondent may raise his challenges to the
sufficiency of the allegations in Paragraphs 12 through 16 by demurrer or motion to
strike. The court shall conclude that he may.

The function of a demurrer is to test the legal sufficiency of the factual allegations in a
complaint or the particular cause of action to which it is directed. (Salimi v. State Comp.
Ins. Fund (1997) 54 Cal.App.4th 216, 219.) The ruling on a general demurrer is thus a
method of deciding the cause on the merits on assumed facts (those alleged) without a
trial.

While a demurrer does not lie to part of a cause of action, the separate counts in a
complaint are not necessarily distinct causes of action. In California, a cause of action
is comprised of a primary right possessed by the plaintiff; a corresponding primary duty
devolving on the defendant; and a delict or wrong done by the defendant consisting of a
breach of the primary right and duty. (Citizens for Open Access to Sand and Tide, Inc.
v. Seadrift Association (1998) 60 Cal.App.4th 1053, 1067.) A plaintiff's primary right is
the right to be free from a particular injury, regardless of the legal theory on which
liability for the injury is based. (Silverado Modjeska Recreation and Park District v.
County of Orange (2011) 197 Cal.App.4th 282, 297-98.) The scope of the primary right
therefore depends on how the injury is defined. (Ibid.) Each invasion of a primary right
gives rise to a separate cause of action.

Construed in this manner, it is possible to construe the first count of the Amended
Petition as including several causes of action, each of which separately might be
subject to demurrer.

But even if the first count is construed as a single cause of action, the court is
persuaded that a motion to strike may be used to challenge a portion of a cause of
action that is substantively defective on its face. (See Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 385; PH II, Inc. v. Superior Court (1995) 33
Cal.App.4th 1680, 1682-83.) Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, relied
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upon by Petitioner, does not compel a contrary conclusion. The cited language from
that case relates to that Courts interpretation of Civil Procedure Code section 436,
subdivision (b). The Court concluded that subdivision (a) did not apply for a wholly
unrelated reason, namely, that respondents sought to attack the entire pleading, rather
than matter inserted in the pleading. That distinguishes Ferraro from this case.

At the very least, Respondents motion can proceed as a motion for summary
adjudication on the issue whether the county registrars had a duty to count the
challenged petitions. However, for purposes of this proceeding, the court shall treat the
first count as a single cause of action, overrule the demurrer, and rule on Respondents
motion to strike.

The court shall grant the motion to strike Paragraph 12 of the Amended Petition. The
election laws require county registrars to disqualify signatures when the address on the
petition does not match the address on the corresponding voter registration affidavit. It
makes no difference that the non-matching address is within the same voting precinct.
The Court in Mapstead v. Anchundo specifically rejected the argument that so long as
the address on the petition is within the same voting precinct as the address on the
voter registration affidavit the signature must be counted. (Mapstead v. Anchundo
(1998) 63 Cal.App.4th 246, 265-66.) Elections Code 105 requires the addresses to
be the same.
1
As a matter of law, the county registrars have no duty to accept a non-
matching address merely because it is located within the same voting precinct.

The court shall deny the motion to strike Paragraph 13 of the Amended Petition.
Paragraph 13 is not substantively defective on its face. If, as alleged, the addresses on
the petition contained obvious minor transcription errors, the law does not necessarily
require disqualification of the signatures. Whether the registrars actions were
reasonable seems to depend on the nature of the particular transcription errors, which
cannot be determined at this time.

The court shall grant the motion to strike Paragraph 15 of the Amended Petition.
Paragraph 15 alleges that there is no statutory provision applicable to statewide
referendums and elections for assisting individuals who are physically unable to fill in
their own address on a petition. This is false. Elections Code 100.5, which is
contained in the Preliminary Provisions of the Elections Code, applies to both local

1
The court rejects Petitioners argument that only 9020 applies to state referenda. Properly construed,
105 means that the signature shall not be counted as valid if (i) the addresses are different, or (ii) the
petition or paper does not specify the residence address, or (iii) in the case of an initiative or referendum
petition, the information specified in 9020 is not contained in the petition. Any one of those three
reasons is sufficient to disqualify the signature.
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and statewide elections. (See Cal. Elections Code 100.5; see also Ni v. Slocum
(2011) 196 Cal.App.4th 1636, 1644.)

The court denies the motion to strike Paragraph 14. The court agrees with Respondent
that the law requires voters to personally affix their place of residence, and that a voter
does not substantially comply with this requirement by allowing someone else to fill in
the voters address (except under 100.5). (See Mapstead, supra, 63 Cal.App.4th 246;
Ni, supra, 196 Cal.App.4th 1636.) However, whether the signer personally affixed his
or her printed name and address is essentially a factual question. (See Mapstead,
supra, 63 Cal.App.4th at p.269.) Thus, the question before the court is whether the
registrar acted reasonably. (Ibid.) This cannot be determined by motion to strike.

The same analysis holds true for Paragraph 16. If the county registrars reasonably
determined that it appears the signers name or address was filled in by someone other
than the signer, then the election laws required the registrars to disqualify the
signatures. But the court cannot determine whether the county registrars reasonably so
determined from the face of the pleading. Thus, the motion to strike Paragraph 16 must
be denied.

Although the court denies the motion to strike Paragraphs 13, 14, and 16, Petitioner
may wish to consider whether she still wants to pursue those claims in light of this
courts ruling, given the highly deferential standard of review governing the registrars
factual determinations. (See Mapstead, supra, 63 Cal.App.4th at p.269.)

Disposition

The court grants the motion to strike Paragraphs 12 and 15 of the Amended Petition. In
all other respects, the motion to strike is denied.

This order shall be effective immediately. No formal order shall be required. The clerk
shall file notice of this ruling in all pending cases and serve a copy of the notice on all
parties. Respondent shall have 15 days after service of notice of this ruling to answer
the Amended Petition.

This tentative ruling shall become the ruling of the court unless a party desiring to be
heard so advises the clerk of this Department no later than 4:00 p.m. on the court day
preceding the hearing, and further advises the clerk that such party has notified the
other side of its intention to appear. Any party desiring an official record of this
proceeding shall make arrangements for reporting services with the clerk of the
department where the matter will be heard not later than 4:30 p.m. on the day before
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the hearing. The fee is $30.00 for civil proceedings lasting under one hour, and
$239.00 per half day for proceedings lasting more than one hour. (Local Rule 1.12 and
Government Code 68086.)