The opinion
Filed 9/30/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE ex rel. ALAMEDA
COUNTY TAXPAYERS’ A168562
ASSOCIATION, INC., et al.,
Plaintiffs and Appellants, (Alameda County
Super. Ct. No. 22CV015533)
v.
DAVID KYLE BROWN,
Defendant and Respondent.
The Alameda County Board of Supervisors (the Board) appointed
defendant David Kyle Brown to fill a vacancy on the Board created by the
sudden death in 2021 of Supervisor Wilma Chan. Brown served on the
Board from November 16, 2021 until January 2, 2023, when a newly
elected supervisor replaced him. Plaintiffs Alameda County Taxpayers’
Association, Inc., Marcus Crawley, David Denton, and Steve Slauson
(collectively, plaintiffs) filed a quo warranto proceeding (see Code Civ.
Proc., § 803) in the trial court in August 2022, seeking a court order
removing Brown from office on the ground he was not eligible to serve as
supervisor.
The basis for plaintiffs’ lawsuit as outlined in their briefing in this
appeal is a claim that Brown did not satisfy two types of residency
requirements to serve on the Board—what the parties refer to as “prior
1
residency” and “continuous residency” requirements. First, as to prior
residency, plaintiffs contend that, because Brown was a resident of
Contra Costa County prior to his appointment, he failed to satisfy (a) a
one-year prior residency requirement under Alameda County
Administrative Code section 2.04.020, and (b) a 30-day prior residency
requirement under state law, specifically Government Code
section 25041. Brown argues in response that the cited code provisions do
not apply here, in part because they apply to elected supervisors but not to
a person appointed to fill a vacancy on the Board.
Second, as to continuous residency (i.e., the rule that a supervisor
must reside in his or her district while in office), the parties agree the
Alameda County Charter and the Alameda County Administrative Code
impose such a requirement. (Alameda County Charter, § 4; Alameda
County Admin. Code, § 2.04.020.) Plaintiffs argue Brown failed to satisfy
this requirement because, although he lived in Oakland (in his
supervisorial district in Alameda County) during his term in office, he
“never became a true ‘resident’ or domiciliary” of the district. Instead,
plaintiffs assert, the evidence shows Brown “lived in Oakland for
temporary purposes merely.”
After a December 2022 hearing on the merits of the prior residency
issue, the trial court ruled in mid-January 2023 (shortly after Brown left
office) that the county and state code provisions invoked by plaintiffs—
Alameda County Administrative Code section 2.04.020 and Government
Code section 25041—do not impose “a pre-residency requirement” for a
supervisor who is appointed to fill a vacancy on the Board. In April 2023,
the court issued a ruling finding the remaining issue in the case—the
question whether Brown satisfied the continuous residency
2
requirement—was moot, because Brown had left office. The court found
that (unlike the legal question as to the applicability of a prior residency
requirement) the continuous residency issue was a factual one, dependent
on the presentation of evidence, that would have little application to
future disputes. Following these rulings, the court entered judgment in
favor of Brown, and this appeal followed.
Prior to briefing on the merits of this appeal, Brown moved to
dismiss the appeal as moot. As we discuss further below, this court
denied the motion to dismiss without prejudice to Brown’s ability to argue
mootness in his appellate brief.
In their appellate briefing, plaintiffs principally contend
(1) although Brown has left office, the appeal should not be dismissed as
moot, because exceptions to the usual rule of dismissal for mootness apply
here, (2) the trial court erred in determining the code provisions invoked
by plaintiffs do not impose a prior residency requirement applicable to
vacancy appointments to the Board, and (3) the trial court erred by
finding the continuous residency issue was moot, and the matter should
be remanded for further proceedings should plaintiffs wish to proceed
with that issue. Plaintiffs also argue (4) the trial court erred by denying
plaintiffs’ motion for judgment on the pleadings, and (5) the court erred in
various respects in its management of the quo warranto proceeding.
We will address the merits of the appeal, because although Brown’s
departure from office technically moots the questions raised as to the
residency requirements for county supervisors, we conclude those
questions are of significant public interest. On the merits, we agree with
the trial court that the prior residency requirements cited by plaintiffs do
not apply to Brown’s vacancy appointment by the Board. As to the
3
continuous residency requirement (which does apply), we conclude there
are disputed factual issues that must be resolved by the trial court on
remand in the event plaintiffs choose to press that question to a final
adjudication at this stage. We reject the remainder of plaintiffs’
arguments challenging other rulings by the trial court. We therefore
affirm in part, reverse in part, and remand for further proceedings on the
continuous residency question.
I. BACKGROUND1
A. Brown’s Appointment as Supervisor
On November 3, 2021, Alameda County Supervisor Wilma Chan,
who represented the county’s District 3, was killed in a car accident. On
November 16, 2021, the Board appointed Chan’s former chief of staff,
Brown, to fill the resulting vacancy on the Board.
At the time of Chan’s death, Brown lived in a house in Walnut
Creek, in Contra Costa County, with his wife and two minor children. As
later summarized in an opinion by the Office of the Attorney General in
connection with the quo warranto proceedings in this matter, Brown
began (after Chan’s death) to take steps to establish residency in
Oakland, in Alameda County’s District 3. (105 Ops.Cal.Atty.Gen. 111,
111 (2022).) “According to his sworn statements, Brown moved into a
friend’s apartment in Oakland on November 12, 2021. Approximately one
month later, Brown moved into his own apartment in the same apartment
1 We deny on relevance grounds plaintiffs’ request that we take
judicial notice of a November 2022 newspaper editorial expressing an
opinion about the present litigation. We also deny on relevance grounds
plaintiffs’ more recent request (filed a few days before oral argument) that
we take judicial notice of (1) a newsletter issued by an Alameda County
supervisor and (2) a provision of the Government Code that plaintiffs did
not cite in their briefs.
4
complex. Brown also changed his voter registration and various mailing
records to those Oakland addresses. Meanwhile, Brown’s wife and
children continued to reside in their Walnut Creek home.” (Ibid.)
The Board’s November 16, 2021 appointment of Brown was to
represent District 3 until the end of Chan’s term on January 2, 2023.
(105 Ops.Cal.Atty.Gen., supra, at p. 111.) Brown was not a candidate for
the District 3 seat in the 2022 election cycle. (Id. at p. 112.) In the
November 2022 election, candidate Lena Tam won a majority of the vote
for the District 3 seat. On January 2, 2023, Tam took office as the
District 3 supervisor, and Brown no longer holds the seat or claims any
right to hold it.
B. Procedural Background
1. Plaintiffs’ Related Action
On February 1, 2022, two parties who later became plaintiffs in the
present quo warranto proceeding—Alameda County Taxpayers’
Association, Inc., and Marcus Crawley—filed a lawsuit challenging
Brown’s November 2021 appointment to the Board. That lawsuit
(Alameda County Superior Court Case No. 22CV006370) alleged
violations of California’s open meeting laws.
2. The Present Quo Warranto Matter
a. Pleadings and Other Preliminary Matters
On March 10, 2022, the four parties who later became plaintiffs in
this action (Alameda County Taxpayers’ Association, Inc., Marcus
Crawley, David Denton, and Steve Slauson) filed an application with the
California Attorney General seeking leave to bring a quo warranto
proceeding to remove Brown from office under Code of Civil Procedure
section 803. The Attorney General’s office granted leave to sue in an
5
opinion issued on June 17, 2022. (105 Ops.Cal.Atty.Gen., supra, at
p. 111.)2
On August 3, 2022, plaintiffs filed a quo warranto complaint,
initiating the present case. They filed the operative first amended
complaint (FAC) on September 19, 2022. The FAC seeks a judgment
ousting Brown from office under Code of Civil Procedure section 803.3
Brown filed a demurrer challenging the FAC on September 26,
2022. The court granted an ex parte application by plaintiffs to set an
expedited hearing on the demurrer, which was held on October 11, 2022.
The court took the matter under submission and issued an order
overruling the demurrer on October 28, 2022. The court also set a
2 Chief Deputy Attorney General Venus D. Johnson issued the
opinion because Attorney General Rob Bonta had recused himself from
the matter. (105 Ops.Cal.Atty.Gen., supra, at p. 111, fn. 1.)
3 “While quo warranto proceedings originated as a common law
writ, they have been codified in California and are not equitable
proceedings.” (People ex rel. Internat. Assn. of Firefighters, etc. v. City of
Palo Alto (2024) 102 Cal.App.5th 602, 618.) Code of Civil Procedure
section 803, which is “the substantive statute authorizing the quo
warranto proceeding” (People ex rel. Internat. Assn. of Firefighters, etc. v.
City of Palo Alto, at p. 619), “authorizes the Attorney General or a relator
acting with the Attorney General’s consent to seek the ouster of a person
unlawfully holding office.” (People ex rel. Schlesinger v. Sachs (2023)
97 Cal.App.5th 800, 814.) Code of Civil Procedure section 803 states: “An
action may be brought by the attorney-general, in the name of the people
of this state, upon his own information, or upon a complaint of a private
party, against any person who usurps, intrudes into, or unlawfully holds
or exercises any public office, civil or military, or any franchise, or against
any corporation, either de jure or de facto, which usurps, intrudes into, or
unlawfully holds or exercises any franchise, within this state. And the
attorney-general must bring the action, whenever he has reason to believe
that any such office or franchise has been usurped, intruded into, or
unlawfully held or exercised by any person, or when he is directed to do so
by the governor.”
6
hearing for December 6, 2022, to address the merits of the parties’ dispute
as to whether a prior residency requirement applies (under either
Alameda County Admin. Code, § 2.04.020 or Gov. Code, § 25041) for a
supervisor appointed to fill a vacancy on the Board.
On November 7, 2022, Brown filed an answer to the FAC. After the
parties filed briefs addressing the prior residency question, the court
heard argument on December 6, 2022, and took the matter under
submission. On December 29, 2022, while the prior residency issue was
still under submission, plaintiffs filed a motion for judgment on the
pleadings. Plaintiffs contended they were entitled to judgment because
Brown had the burden of proof as the defendant in a quo warranto action
and his answer to the FAC failed to state facts sufficient to establish his
entitlement to office.
On January 3, 2023, Brown filed a motion to dismiss the quo
warranto proceeding as moot in light of the expiration of his term as
supervisor on January 2, 2023.
b. The Trial Court’s Ruling on the Prior Residency Issue and on
Plaintiffs’ Motion for Judgment on the Pleadings
On January 17, 2023, the trial court entered a written “Order
Denying Challenge Under Section 803 of the Code of Civil Procedure and
Denying Motion for Judgment on the Pleadings.” In its order, the court
addressed the merits of the prior residency issue that it had taken under
submission at the December 6 hearing. The court found in favor of
Brown, concluding he had “proven, by at least a preponderance of the
evidence, that he has not usurped, intruded into, or unlawfully held or
exercised the office of Alameda County Supervisor, as required by
section 803 of the Code of Civil Procedure,” because neither Alameda
County Administrative Code section 2.04.020 nor Government Code
7
section 25041 imposes a prior residency requirement for a person
appointed to a vacancy on the Board.4
The court concluded that its ruling on this issue mooted plaintiffs’
pending motion for judgment on the pleadings, which as noted, was based
on an argument that Brown’s answer to the FAC was insufficient to state
a defense. Having ruled in favor of Brown on the merits (at an expedited
merits hearing that plaintiffs had requested), the court denied plaintiffs’
motion for judgment on the pleadings.
On March 7, 2023, the court heard and denied plaintiffs’ motion for
reconsideration of its January 17, 2023 ruling. Also at the March 7, 2023
hearing, the court set a hearing for April 4, 2023, and ordered plaintiffs to
show cause at that hearing why the remainder of the case, relating to the
continuous residency requirement, should not be dismissed as moot since
Brown no longer served on the Board.
4 In addressing the legal question as to the applicability of a prior
residency requirement, the court stated it would take as true plaintiffs’
factual allegation that Brown resided in Walnut Creek, in Contra Costa
County, prior to his appointment to the Board.
The court noted plaintiffs had also raised a question of Brown’s
residence during his term in office. As summarized by the court,
plaintiffs contended that Brown’s move to Alameda County “[did] not
alter his ineligibility,” in part because Brown “still did not legally reside
in Alameda County even after moving into an apartment here because he
never intended to live here permanently, or even indefinitely.” But the
court found this issue was not before it, stating: “In order to avoid an
evidentiary hearing, which could have caused further delay, [plaintiffs]
did not press their argument that Mr. Brown did not reside in Alameda
County during his short incumbency.”
8
c. The Trial Court’s Ruling as to Mootness of the Continuous
Residency Issue, Entry of Judgment, and Plaintiffs’ Appeal
Following the April 4, 2023 hearing, the court entered an order
finding the continuous residency issue was moot. The court later entered
judgment in favor of Brown. Plaintiffs appealed.
On November 20, 2023, Brown filed a motion to dismiss this appeal
as moot, arguing that because Brown no longer holds the Board seat, a
reversal of the judgment would not grant plaintiffs any effective relief.
Plaintiffs opposed the motion, arguing this case raises important legal
issues that should be resolved. On January 2, 2024, this court issued an
order stating the motion to dismiss “is denied without prejudice to
reassertion in Respondent’s brief that any challenge to whether Brown
met the residency requirements during the term of his appointment is
moot.”
II. DISCUSSION
A. Mootness
The parties dispute whether the issues raised in this appeal are
moot in light of Brown’s departure from office. We conclude it is
appropriate to resolve the appeal on the merits.
1. Additional Background
a. The Trial Court’s Rulings as to Mootness
The trial court reached different conclusions as to mootness when
considering the prior residency and continuous residency issues. First, as
to prior residency, the court held a hearing on the merits of that question
and took it under submission on December 6, 2022, while Brown was still
serving on the Board. The court entered its written order addressing the
prior residency issue on January 17, 2023, a few weeks after the
January 2, 2023 expiration of Brown’s term.
9
In the January 17, 2023 order, before addressing the merits of the
prior residency question in detail, the court (Hon. Michael Markman)
found that, although Brown had left office, “[plaintiffs’] case remains
timely and subject to adjudication by the Court.” The court found the
case should not be dismissed, because it presented “an ongoing ‘public
question of government legitimacy.’ ” The court elaborated: “[Plaintiffs]
point out that interpretation of section 2.04.020 of the Alameda County
Administrative Code remains in dispute. The Court also notes that the
public has a significant interest in determining whether an acting
supervisor was permissibly exercising power or was instead an ‘usurper’
under California law. While the parties have not briefed the matter, it is
at least theoretically possible that matters upon which a supervisor may
have voted might be voidable if the supervisor was unlawfully holding
office.” As noted, the court then reached the merits of the prior residency
issue and ruled in favor of Brown, finding no prior residency requirement
applied.
As to continuous residency, the court (Hon. Harold Kahn, who
heard the matter due to Judge Markman’s unavailability) issued a ruling
in April 2023 finding that the question whether Brown satisfied the
continuous residency requirement was moot because Brown had left
office. Judge Kahn found that, in contrast to the statutory interpretation
question as to the applicability of a prior residency requirement (a “pure
issue of law”) that Judge Markman had addressed in the January 17,
2023 order, the question whether Brown satisfied the continuous
residency requirement “is a factual issue dependent on presentation of
evidence whose resolution has little or no application to future disputes
about whether a supervisor has met that requirement, even assuming
10
that there will be such future disputes.” Judge Kahn found that
resolution of the continuous residency question would turn on “the unique
facts of Brown’s acts and intentions,” and the issue was “neither of
general public interest nor likely to have any significance in establishing
any legal principles.”
Finally, Judge Kahn rejected plaintiffs’ argument that the case
should proceed so they could (1) challenge the validity of Brown’s actions
while in office or (2) seek to obtain a fine under Code of Civil Procedure
section 809. Judge Kahn noted the FAC does not seek any relief
pertaining to the validity of Brown’s actions as supervisor and does not
request imposition of a fine against Brown.
Having resolved the prior residency issue on the merits in favor of
Brown, and having determined the continuous residency issue was moot,
the court entered judgment in favor of Brown.
b. Brown’s Motion to Dismiss This Appeal as Moot
After plaintiffs appealed the judgment, Brown filed a motion in
November 2023 to dismiss this appeal as moot. Noting that plaintiffs’ quo
warranto action sought to remove him from office, Brown argued that,
because he is no longer in office, a reversal of the judgment would not
grant plaintiffs any effective relief.
Brown also contended that the prior residency and continuous
residency questions were not “issues of broad public concern that are
likely to arise again.” As to prior residency, Brown argued the question
whether Alameda County Administrative Code section 2.04.020 applies to
vacancy appointments “is not sufficiently likely to recur to warrant
hearing a moot appeal.” And the continuous residency question—
“whether Brown actually resided in the District during his term”—“is a
11
fact-specific issue that cannot recur.” Plaintiffs opposed the motion to
dismiss.
On January 2, 2024, this court issued an order stating the motion to
dismiss “is denied without prejudice to reassertion in Respondent’s brief
that any challenge to whether Brown met the residency requirements
during the term of his appointment is moot.”5
2. The Appeal Should Be Resolved on the Merits
a. Mootness and Exceptions to Dismissal
In general, it is a court’s duty to decide “ ‘ “actual controversies by a
judgment which can be carried into effect, and not to give opinions upon
moot questions or abstract propositions, or to declare principles or rules of
law which cannot affect the matter in issue in the case before it.” ’ ” (Eye
Dog Foundation v. State Board of Guide Dogs for the Blind (1967)
67 Cal.2d 536, 541.) “Moot cases . . . are ‘[t]hose in which an actual
controversy did exist but, by the passage of time or a change in
circumstances, ceased to exist.’ ” (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1573.) “The pivotal question
in determining if a case is moot is . . . whether the court can grant the
plaintiff any effectual relief.” (Id. at p. 1574.)
5 In his subsequently filed appellate brief, Brown states that (as he
outlined in his motion to dismiss) he believes the entire appeal is moot.
But Brown interprets the above language in this court’s order denying the
motion as (1) allowing him to reassert only the argument that the
continuous residency issue is moot, and (2) reflecting an implicit finding
by this court that the prior residency issue falls within an exception to
mootness and will be resolved on the merits. He therefore presents only
an argument that the continuous residency issue is moot. We will,
however, consider the mootness question as to both issues.
12
“[M]oot appeals generally should be dismissed. ([Citation];
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2023) ¶ 5:22 [the general rule is that moot appeals are dismissed].)
But there are three discretionary exceptions that allow an appellate court
to decide an otherwise moot appeal: ‘(1) when the case presents an issue
of broad public interest that is likely to recur [citation]; (2) when there
may be a recurrence of the controversy between the parties [citation]; and
(3) when a material question remains for the court’s determination
[citation].’ ” (Ghost Golf, Inc. v. Newsom (2024) 102 Cal.App.5th 88, 100.)
b. Analysis
Here, because Brown no longer holds a seat on the Board, neither
the trial court nor this court can grant the relief sought by plaintiffs in
the FAC—the ouster of Brown from that seat. Plaintiffs assert certain
other relief could be granted if we were to reverse the trial court’s
judgment, specifically “the possible imposition of a fine under Code of
Civil Procedure section 809[6] and/or invalidation of actions taken [by
Brown] while he usurped public office.” Brown argues in response that,
under case law applying the “de facto officer doctrine,” his actions in office
cannot now be challenged. As to fines, Brown notes plaintiffs did not
request that relief in the FAC, and he contends that in any event the
possible availability of a discretionary fine should not be sufficient to
defeat mootness.
We need not resolve the parties’ arguments on these points. Even
assuming that no effective relief can be granted and that the case
6 Code of Civil Procedure section 809 provides that a defendant who
is found to have usurped public office shall “pay the costs of the action”
and may also be required to pay a “fine not exceeding five thousand
dollars” to the state treasury.
13
therefore is moot, we conclude the first exception to dismissal applies
here. This case presents an issue of broad public interest. Quo warranto
proceedings involve “ ‘ “disputes over title to public office” ’ ” that “ ‘ “are
viewed as a public question of governmental legitimacy and not merely a
private quarrel among rival claimants . . . .” ’ ” (People ex rel. Lacey v.
Robles (2020) 44 Cal.App.5th 804, 815–816.) We agree with the trial
court that “the public has a significant interest” in knowing whether
Brown was properly appointed to office. In particular, in our view, the
interpretation of the prior residency requirements and the determination
whether they apply to vacancy appointments are important public issues
that should be resolved in this appeal.
In Brown’s motion to dismiss this appeal, he argued that the
question whether the one-year prior residency requirement in Alameda
County Administrative Code section 2.04.020 applies to vacancy
appointments is “not sufficiently likely to recur” to warrant hearing this
appeal, because the issue does not appear to have arisen before. But the
question as to the eligibility requirements for an appointed supervisor
will be presented to the Board each time there is a vacancy. That the
issue has not previously developed to the point of producing a published
opinion does not persuade us the question is unlikely to recur.
As to the continuous residency requirement imposed by both
Alameda County Charter section 4 and Alameda County Administrative
Code section 2.04.020, we conclude that the question as to the showing
needed to satisfy that requirement is an issue of public importance. We
agree with the trial court that this aspect of plaintiffs’ case is more factual
in nature than the prior residency issue—the parties agree a supervisor
must reside in his district during his incumbency, and they primarily
14
dispute whether Brown satisfied that requirement—but it too implicates
broader issues of public legitimacy and usurpation. Thus, the question
whether and how a person who has recently moved to a district can
satisfy the continuous residency requirement is, in our view, a matter of
public interest that should be resolved on the merits along with the prior
residency question.
B. Prior Residency Requirements
Plaintiffs contend Brown was ineligible to be appointed to fill the
Board vacancy on November 16, 2021, because having moved to District 3
only a few days earlier, he did not satisfy (1) a one-year prior residency
requirement in Alameda County Administrative Code section 2.04.020,7
or (2) a 30-day prior residency requirement in Government Code
section 25041. We conclude neither provision prohibited Brown’s
appointment.
1. The One-Year Prior Residency Requirement in Alameda
County Administrative Code section 2.04.020
The prior residency requirement that plaintiffs principally rely on is
set forth in Alameda County Administrative Code section 2.04.020, which
states: “The board consists of five members, one member elected from
each of five supervisorial districts designated as provided by the [Alameda
County] Charter at the time and in the manner and for the terms
provided by state law. Each member must be an elector of the district
which he represents, must reside therein during his incumbency, and
7 Alameda County is a charter county. The Alameda County
Charter does not itself impose a prior residency requirement for
supervisors (although it does require that a supervisor reside in his
district while in office) (Alameda County Charter, § 4); the one-year prior
residency requirement is stated in the county’s administrative code
(Alameda County Admin. Code, § 2.04.020).
15
must have been such an elector for a[t] least one year immediately
preceding his election. No supervisor shall, during the term for which he
has been elected, or for one year thereafter, be eligible for appointment to
any office or position carrying compensation and created by the Charter
or by ordinance.” (Alameda County Admin. Code, § 2.04.020, italics
added; see id., § 1.04.030.)
The parties dispute whether this provision requires that a
supervisor who is appointed by the Board to fill a vacancy, rather than
being elected by voters, must have lived in the district for one year prior
to his appointment.8 Plaintiffs contend in part that it is “well-settled law”
that “legal qualifications for ‘election’ to a local public office should be
broadly construed to include ‘appointment’ to that same office.” Brown
responds that the requirement for a supervisor to reside in the district for
one year “preceding his election” (Alameda County Admin. Code,
§ 2.04.020) does not apply in the unusual case of a vacancy appointment
to the Board. In that circumstance, he argues, section 8 of the Alameda
County Charter authorizes the Board to appoint a supervisor to fill the
vacancy until the next election, and it does not limit the people the Board
may consider based on where they lived during the year prior to their
appointment.
8 We also requested, and the parties filed, supplemental briefs
addressing whether the one-year prior residency requirement in Alameda
County Administrative Code section 2.04.020 is unconstitutional. (See
Johnson v. Hamilton (1975) 15 Cal.3d 461, 464, 472 (Johnson) [holding
that one-year and six-month prior residency requirements for local
officials were unconstitutional].) We have concluded that we need not
resolve the constitutionality question in this appeal, because we find as a
matter of statutory interpretation that the prior residency requirement in
Alameda County Administrative Code section 2.04.020 does not apply to a
supervisor appointed to fill a vacancy on the Board.
16
We review de novo questions of statutory interpretation (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387), including
interpretation of local ordinances, codes, and charters (Childhelp, Inc. v.
City of Los Angeles (2023) 91 Cal.App.5th 224, 235). “Under settled
canons of statutory construction, in construing a statute we ascertain the
Legislature’s intent in order to effectuate the law’s purpose. [Citation.]
We must look to the statute’s words and give them ‘their usual and
ordinary meaning.’ [Citation.] ‘The statute’s plain meaning controls the
court’s interpretation unless its words are ambiguous.’ [Citations.] ‘If the
statutory language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose, legislative
history, and public policy.’ ” (Imperial Merchant Services, Inc. v. Hunt,
supra, 47 Cal.4th at pp. 387–388.)
Applying these standards here, we agree with the trial court that
the one-year prior residency requirement in Alameda County
Administrative Code section 2.04.020 does not apply to a vacancy
appointment. Beginning with the statutory language, Alameda County
Administrative Code section 2.04.020 requires that a supervisor reside in
the district “for a[t] least one year immediately preceding his election”; it
does not expressly address vacancy appointments to the Board. (Brown v.
City of Inglewood (2025) 18 Cal.5th 33, 49, fn. 10 [“ ‘There is a clear and
well-understood distinction between appointment and election.’ ”]; Mono
County v. Industrial Acc. Com. (1917) 175 Cal. 752, 754.) And we
disagree with plaintiffs that, in the present context, the term “election”
should be read to include a vacancy appointment.
We note initially that section 8 of the Alameda County Charter,
which sets forth the vacancy appointment procedure, treats that
17
procedure as something different from, and an exception to, the more
common situation where a supervisor is elected by voters. Section 8 of the
Alameda County Charter provides that, if a vacancy occurs on the Board,
the Board will “fill the vacancy”; if the Board fails to do so within 60 days,
the Governor will fill the vacancy. (Alameda County Charter, § 8.)9 The
person selected to fill the vacancy—the “appointee”—is to hold office only
“until the election and qualification of his/her successor,” which will occur
“at the next general election.” (Ibid.)10 Section 8 of the charter does not
use the term “election” to refer to a vacancy appointment.
As plaintiffs note, courts have held that, in some circumstances, a
statutory reference to an “election” to office should be read to encompass
an appointment to that office, but in our view these cases are
distinguishable and do not sweep as broadly as plaintiffs suggest. In
Barrett v. Hite (1964) 61 Cal.2d 103, 105–106 (Barrett), the California
Supreme Court stated the meaning of the term “ ‘elect’ ” depends on the
context—“ ‘elect’ ” “ordinarily” “refers to a determination made by voters,”
but it may in some circumstances have “a broader meaning”
encompassing other types of selection, such as appointment. In Barrett,
the court construed an amendment to the California Constitution
9 Under general state law, the Governor fills a vacancy that occurs
on a county’s board of supervisors. (Gov. Code, § 25060.)
10 Section 8 of the Alameda County Charter states in full:
“Whenever a vacancy occurs on the Board of Supervisors, the Board of
Supervisors shall fill the vacancy, provided that, if it shall fail to fill the
vacancy within 60 days following its occurrence, the Governor shall fill
the vacancy. The appointee shall hold office until the election and
qualification of his/her successor. In such case there shall be elected at
the next general election a supervisor to fill such vacancy for the
unexpired term, unless such term expires on the first Monday after the
first day of January succeeding said election.”
18
providing that incumbent superior court judges facing no opposition in an
election would not appear on the ballot and would be declared “ ‘re-
elected.’ ” (Barrett, at pp. 104–105.) A group of judges who were initially
appointed argued they were not subject to this provision because having
never been elected, they could not be “ ‘re-elected.’ ” (Id. at pp. 104, 105.)
The Supreme Court rejected this argument, stating in part:
“Although it is true, as plaintiffs point out, that ordinarily ‘elect’ refers to
a determination made by voters, the word also has a broader meaning,
namely, ‘to make a selection of: Choose . . . to choose (a person) for an
office . . .’ ” (Barrett, supra, 61 Cal.2d at p. 105.) This broader meaning
can include an appointment to office. (Id. at pp. 105–106) Considering
which of the two meanings should be applied in the case before it, the
Barrett court held that “[t]he more reasonable interpretation of the
amendment is that the word ‘re-elected’ is used in its broader sense, i.e.,
that the county clerk or registrar is to declare that the incumbent is again
chosen or selected to hold the office of judge.” (Id. at p. 106.)
Our reading of Barrett is that the “more reasonable interpretation”
of the term “ ‘elect’ ” in a statutory provision may be broader or narrower,
depending on the context and the statutory purpose. (Barrett, supra,
61 Cal.2d at p. 106.) Plaintiffs are incorrect in suggesting that Barrett
established a rule that the broader meaning always applies, or that it
always applies “in the context of qualifications for public office.”
The other cases cited by plaintiffs on this point similarly concluded
only that, in a particular statutory context, the term “elect” may
encompass selection methods other than election by voters, such as
appointment. (Reed v. Hammond (1912) 18 Cal.App. 442, 444–445
[noting “appointment” and “election” generally have different meanings,
19
but concluding that a statute requiring a county officeholder to be an
elector “ ‘at the time of his election’ ” was intended to prescribe
qualifications for all county officers, whether elected or appointed]; Odell
v. Rihn (1912) 19 Cal.App. 713, 719 [stating “[t]he words ‘elected’ and
‘appointed’ ordinarily are not synonymous,” but finding the term
“ ‘elected’ ” in a statute pertaining to justices of the peace was intended to
encompass selection of a justice by the city council]; Main v. Claremont
Unified School Dist. (1958) 161 Cal.App.2d 189, 194–195 [noting election
and appointment usually have different meanings, but finding statutes at
issue used “ ‘elect’ ” and “ ‘employ’ ” interchangeably], overruled on
another ground in Barthuli v. Board of Trustees (1977) 19 Cal.3d 717,
721–722.)
Contrary to plaintiffs’ suggestion, none of the cited cases establishes
that the term “election” must always or even generally be read broadly to
include appointment; that depends on the context and on legislative
intent. We also reject plaintiffs’ derivative contention that the drafters of
the Alameda County Charter (ratified by county voters in 1926 and
approved by the Legislature in 1927) (see Alameda County Charter) and
the Alameda County Administrative Code (adopted in 1967) (see Alameda
County Admin. Code, § 1.01.010), being aware of this case law, must have
intended “election” in those documents to have a broad meaning that
includes appointment.11
11 The definitions provision of the Alameda County Administrative
Code, section 1.04.030, which plaintiffs highlight in connection with this
point, provides definitions of various terms but does not define “election.”
The provision states generally that words that are not given specific
definitions “shall have their common and ordinary meaning which shall
include the meanings determined by the laws of the state and the
20
Here, in our view, taking into account statutory purpose, the “more
reasonable interpretation” (Barrett, supra, 61 Cal.2d at p. 106) of the
requirement that a supervisor reside in the district “for a[t] least one year
immediately preceding [the supervisor’s] election” (Alameda County
Admin. Code, § 2.04.020) is that it requires residency for a period
preceding a supervisor’s election by voters but does not impose a similar
requirement for a supervisor appointed by the Board to fill a vacancy. We
base this conclusion on our reading of Johnson, supra, 15 Cal.3d 461, and
its discussion of the legislative purposes that will and will not justify a
prior residency requirement for a local public official.
In its 1975 decision in Johnson, the California Supreme Court held
invalid two provisions of the Long Beach City Charter requiring one-year
prior residency in the city and six-month residency in the district for a
city council candidate. (Johnson, supra, 15 Cal.3d at pp. 464, 472.) The
court held the provisions, which impinged on the rights of candidates and
voters, violated equal protection. (Id. at pp. 472, 468.) Two of the
justifications advanced for prior residency restrictions were focused on
“education—first, of the candidate regarding the issues, and second, of the
electorate regarding the candidate.” (Id. at p. 469.) But the court found
these goals did not justify a “rigid” or “arbitrary” prior residency
requirement. (Id. at pp. 470–471.)
The Johnson court concluded, however, that a shorter prior
residency requirement (30 days) would be permissible, stating: “There do
decisions of the courts of the state.” (Alameda County Admin. Code,
§ 1.04.030.) But again, since the case law does not establish one fixed
meaning of the term “election,” this provision does not support plaintiffs’
assertion that the broader interpretation they favor has been
incorporated into the code.
21
exist . . . ‘compelling’ reasons for a requirement that candidates for public
office establish their residence, and eligibility for office, within a
reasonable and fixed time prior to the election.” (Johnson, supra,
15 Cal.3d at p. 472.) The court elaborated: “ ‘An orderly system of
election laws crystallizes the issues and candidates during a given time-
span before the election. During this period the election officials prepare
and distribute sample ballots and print official ballots. During this period
the candidates address their appeals to the voters. The latter, in turn,
weigh the alternatives. They may rationally resolve their choices only by
assurance that all the candidates are eligible.’ ” (Ibid.)
In light of these considerations, the Johnson court adopted the
suggestion made in a prior opinion that “a public entity may
constitutionally require a prospective candidate to be ‘a resident at the
time he files his nominating papers or equivalent declaration of candidacy
and for a period of not more than 30 days next preceding such date of
filing.’ ” (Johnson, supra, 15 Cal.3d at p. 472.) The court stated: “Such a
30-day prefiling residence requirement seems reasonably necessary and
convenient to accommodate the needs of election officials in their task of
timely verification of the candidate’s true residence prior to the
preparation and distribution of ballots. Accordingly, we hold that any
durational residence requirement for candidates for local office in excess
of the foregoing period is violative of the equal protection clause of the
Fourteenth Amendment.” (Ibid.)
As the trial court in the present case noted, the parties have not
presented evidence or argument as to the purpose behind the one-year
prior residency requirement in Alameda County Administrative Code
section 2.04.020. The trial court, after stating that “[o]ne is left to
22
speculate why [the code] requires someone to live in the district they
represent for at least a year prior to their election,” suggested that “[i]t
could be that the Board that enacted section 2.04.020 believed that
individuals who reside in the district will have a deeper knowledge than
those who lived elsewhere.”12
Under Johnson, as noted, that possible legislative purpose—
“education . . . of the candidate regarding the issues” (Johnson, supra,
15 Cal.3d at p. 469)—is an insufficient basis to impose a lengthy prior
residence requirement for local public officials (id. at p. 470). The
Johnson court explained: “The knowledge, appreciation, and
comprehension of the public issues and problems which a candidate either
possesses or may reasonably be expected to acquire are so much the
product of the variables of motivation, intelligence, maturity, experience,
opportunity, and desire as to make any flat rule of physical residence
appear immediately suspect and arbitrary.” (Ibid.) If the assumption
that long-term district residents will be more knowledgeable is a shaky
basis for requiring a prior residence period even for elected local public
officials (ibid.), then in our view it does not support adopting a broad
construction of Alameda County Administrative Code section 2.04.020 to
apply its one-year prior residency requirement to appointed supervisors
as well as elected ones.
12 The trial court noted that, as a factual matter, this possible
concern about knowledge of the district appears inapplicable here. Given
that Brown had served for years as Supervisor Chan’s chief of staff prior
to his appointment, the trial court noted, “One may speculate that few
would have a deeper knowledge of the issues facing District Three for
purposes of serving on the Board.”
23
The other “education”-related purpose for extended prior residence
requirements that the Johnson court discussed—“education . . . of the
electorate regarding the candidate” (Johnson, supra, 15 Cal.3d at
p. 469)—is similarly “not served by a proscription so imperious as one
based upon extended physical presence alone.” (Id. at pp. 470–471; id. at
p. 471 [the “advent of mass media” and other factors “reduce and dilute
the expectancy that voter evaluation and education can best be served by
an arbitrary residence requirement of the candidate”].) In addition, the
assumed need for voter education about a candidate (even to the extent it
might support a prior residence requirement for persons wishing to stand
for election by voters) does not appear directly applicable to an
appointment process where a public official (such as the Governor) or a
group of officials (such as the Board) is tasked with temporarily filling a
vacancy. The possible legislative goal of voter education thus provides no
basis to construe Alameda County Administrative Code section 2.04.020’s
prior residence requirement broadly to apply to a person appointed to fill
a vacancy on the Board.
As noted, the Johnson court found a shorter, 30-day prior residency
period would be justified based on the needs of election officials and
voters. (Johnson, supra, 15 Cal.3d at p. 472.) Requiring “candidates for
public office” to “establish their residence, and eligibility for office, within
a reasonable and fixed time prior to the election” (ibid.) allows time for
“ ‘election officials’ ” to “ ‘prepare and distribute sample ballots and print
official ballots’ ” (ibid.). In addition, “ ‘[d]uring this period the candidates
address their appeals to the voters. The latter, in turn, weigh the
alternatives. They may rationally resolve their choices only by assurance
that all the candidates are eligible.’ ” (Ibid.) A 30-day prefiling residence
24
requirement “accommodate[s] the needs of election officials in their task
of timely verification of the candidate’s true residence prior to the
preparation and distribution of ballots.” (Ibid.)
These concerns justifying a short prior residency requirement to
facilitate an orderly election process do not appear to be directly
implicated by an appointment procedure that tasks a small group of
public officials with temporarily filling a vacancy. Although it may be
necessary to verify the current residence of an applicant for a vacancy,
there is no need for election officials to prepare and distribute ballots, or
for voters to evaluate competing candidates. In any event, these election-
specific considerations do not support construing the one-year prior
residence requirement in Alameda County Administrative Code
section 2.04.020 as applying to a person appointed to fill a vacancy.
As noted, we must interpret the prior residency requirement in
Alameda County Administrative Code section 2.04.020 in a manner that
“effectuate[s] the law’s purpose[s]” (Imperial Merchant Services, Inc. v.
Hunt, supra, 47 Cal.4th at p. 387), to the extent we can discern those
purposes and to the extent they are valid. The need for a short
preelection residence period to allow election workers to verify candidate
residences and prepare ballots (the valid statutory purpose identified in
Johnson) does not support broadly construing the statute at issue here to
require a lengthy prior residency period for a person appointed to fill a
vacancy on the Board.13
13 In their supplemental brief, plaintiffs suggest that, if this court
were to find that the one-year prior residency requirement in Alameda
County Administrative Code section 2.04.020 is unconstitutional, we
should treat the statute as imposing instead a 30-day prior residency
25
For these reasons, we disagree with a 1964 opinion by the Attorney
General (cited by plaintiffs) that concluded a one-year prior residency
requirement for a county supervisor applied to both elected and appointed
supervisors. (44 Ops.Cal.Atty.Gen. 159, 159, 161 (1964).) In that opinion,
the Attorney General addressed a provision of the San Mateo County
Charter that stated a county supervisor must have certain listed
qualifications and must also have “ ‘such other qualifications as are now
or may hereafter be provided by general law . . . .’ ”
(44 Ops.Cal.Atty.Gen., supra, at p. 159; see id. at p. 161.) In turn, the
“general law” governing residency requirements for county supervisors
was former Government Code section 25041, which at that time provided
in part: “ ‘Each member shall have been an elector of the district which
he represents for at least one year immediately preceding his election, and
reside in the district during his incumbency.’ ” (44 Ops.Cal.Atty.Gen.,
supra, at p. 160, italics added.)
In applying these provisions to determine the residence
requirements for appointment to a vacancy on the county board of
supervisors, the Attorney General focused primarily on whether the one-
year prior residence requirement in former Government Code
section 25041 (which was incorporated into the applicable provision of the
county charter) conflicted with, and therefore was superseded by, other
portions of that charter provision. (44 Ops.Cal.Atty.Gen., supra, at
requirement that would be appropriate under Johnson. It is not our
function to rewrite statutes. In any event, as noted, we have not reached
the question whether the prior residency requirement in Alameda County
Administrative Code section 2.04.020 is unconstitutional, because we
have concluded as a matter of statutory interpretation that the
requirement does not apply to a person appointed to fill a vacancy on the
Board.
26
pp. 159–161.) Finding no conflict, the Attorney General concluded former
Government Code section 25041 supplemented the charter provision’s
express qualification requirements by imposing a one-year prior residence
requirement. (44 Ops.Cal.Atty.Gen., supra, at p. 161.) And, citing the
Barrett and Reed cases that we have discussed above, the Attorney
General stated (without detailed discussion) that this prior residence
requirement applies to appointed supervisors as well as elected ones.
(44 Ops.Cal.Atty.Gen., supra, at p. 161.)14
The language of the one-year prior residence requirement in former
Government Code section 25041 that was at issue in the 1964 Attorney
General opinion (i.e., the requirement that a supervisor be an elector of
the district “ ‘for at least one year immediately preceding his election’ ”)
(44 Ops.Cal.Atty.Gen., supra, at p. 160) is the same language that is
currently found in Alameda County Administrative Code section 2.04.020.
But we decline to adopt the view expressed by the Attorney General in
1964 that this language imposes a one-year prior residence requirement
for a person appointed to fill a vacancy on the Board.
First, as we have discussed above, we do not agree that Barrett or
Reed stands for the proposition that the term “election” is always to be
construed broadly to encompass an appointment, and we reject the
14 The Attorney General, after finding there was no conflict between
the provisions at issue, summed up his analysis as follows: “The charter
requires that a supervisor shall have attained the status of a voter, and
the general law, by its incorporation by reference in the charter, imposes
an additional, supplementary requirement that a supervisor shall have
been an elector for one year immediately preceding his election (or
appointment, see Barrett v. Hite, 61 A.C. 83, 85–86 (1964); Reed v.
Hammond, 18 Cal.App. 442, 445 (1912)).” (44 Ops.Cal.Atty.Gen., supra,
at p. 161.)
27
Attorney General’s apparent view in the 1964 opinion that those cases
provided a definitive answer to that question. (44 Ops.Cal.Atty.Gen.,
supra, at p. 161.) More importantly, in our view, the California Supreme
Court’s subsequent 1975 decision in Johnson requires us to construe the
prior residence requirement in Alameda County Administrative Code
section 2.04.020 more narrowly, to effectuate only the valid purpose of
providing a short preelection time window for election workers to verify
candidates’ residences and prepare and distribute ballots. As we have
discussed, this statutory purpose does not support construing the statute
broadly to require that a person must reside in the district for one year
before the Board may consider appointing him to fill a vacancy.
Finally, although it is not directly relevant to our interpretation of
the current language of Alameda County Administrative Code
section 2.04.020, we note that Government Code section 25041, which in
1964 contained an identically phrased one-year prior residence
requirement (see 44 Ops.Cal.Atty.Gen., supra, at p. 160), was amended in
1978 to specify a shorter and differently measured prior residence
requirement. Government Code section 25041 (a provision we discuss
further in pt. II.B.2, post) currently states in relevant part: “[E]ach
member [of a county board of supervisors] shall have been a registered
voter of the district which he seeks to represent for at least 30 days
immediately preceding the deadline for filing nomination documents for
the office of supervisor, and shall reside in the district during his
incumbency.” (Gov. Code, § 25041, as amended by Stats. 1978, ch. 1287,
§ 30, p. 4214, italics added.) An Assembly committee analysis explains
that the purpose of the change was “to bring [Government Code
section 25041] into conformance with the decision of the State Supreme
28
Court in [Johnson].” (Assem. Com. on Elections and Reapportionment,
Analysis of Assem. Bill No. 3294 (1977–1978 Reg. Sess.) p. 3.)
We are not persuaded by plaintiffs’ remaining arguments in support
of applying Alameda County Administrative Code section 2.04.020’s one-
year prior residence requirement (i.e., the requirement that a supervisor
reside in the district for “a[t] least one year immediately preceding his
election”) to vacancy appointees. Plaintiffs suggest the Board’s
appointment of a supervisor to fill a vacancy is itself an “election” within
the meaning of the statute because Board members vote on who will be
the appointee. We disagree. As plaintiffs note, the term “election” may in
some contexts encompass a selection by a small group of officials. (Odell
v. Rihn, supra, 19 Cal.App. at p. 719.) But we find it unlikely that, when
the Alameda County Administrative Code was adopted in 1967, the term
“election” in what is now section 2.04.020 was intended to refer to Board
votes on vacancy appointments. Prior to a 1986 amendment, section 8 of
the Alameda County Charter, which governs vacancy appointments,
provided that the Governor would fill vacancies on the Board until the
next election.
Plaintiffs also assert that the term “election” in a different portion
of Alameda County Administrative Code section 2.04.020, or in other
statutes, should be read to encompass appointments. We need not
address the parties’ arguments on these points. Whatever their merits,
there are unique considerations (which we have discussed above) that
inform our interpretation of the term “election” in the portion of Alameda
County Administrative Code section 2.04.020 that imposes a one-year
prior residence requirement. To avoid constitutionality concerns, and to
construe the statute in a way that effectuates its valid purpose of allowing
29
a short preelection preparation period, we interpret “election” in that
provision as not applying to vacancy appointments.
2. The 30-Day Prior Residency Requirement in Government
Code Section 25041
Plaintiffs contend as a backup argument that, if Alameda County
Administrative Code section 2.04.020 did not prohibit Brown’s
appointment to the Board, then he failed to satisfy the 30-day prior
residence requirement in Government Code section 25041. The trial court
correctly rejected this argument.15
Government Code section 25041 states: “In all other cases[16] each
member [of the board of supervisors] shall have been a registered voter of
the district which he seeks to represent for at least 30 days immediately
preceding the deadline for filing nomination documents for the office of
supervisor, and shall reside in the district during his incumbency.” This
provision thus ties its prior residence requirement to a specific step in the
process of election by voters. We agree with the Attorney General’s
opinion in this matter, which states: “Government Code section 25041
unambiguously applies only to elections by voters (and not appointments)
because it ties the 30-day requirement (expressed as a voter-registration
15 As the trial court noted, the Attorney General’s office, in its
opinion authorizing plaintiffs to bring this quo warranto action (based on
the conclusion that some of plaintiffs’ arguments were potentially
meritorious), expressed skepticism about their argument under
Government Code section 25041. (105 Ops.Cal.Atty.Gen., supra, at
p. 115, fn. 17.)
16 The “[i]n all other cases” language (Gov. Code, § 25041, italics
added) refers back to an exception in Government Code section 25040 for
board members in certain counties where districts have not been
established, who are to be “elected at large and without regard to
residence” (Gov. Code, § 25040). That exception is not relevant here.
30
requirement) to a deadline for filing documents in elections decided by
voters.” (105 Ops.Cal.Atty.Gen., supra, at p. 115, fn. 17.)17
Seeking to avoid this result, plaintiffs point to a passage in
Johnson, where the California Supreme Court noted (and then agreed
with) a suggestion in an earlier opinion that “a public entity may
constitutionally require a prospective candidate to be ‘a resident at the
time he files his nominating papers or equivalent declaration of candidacy
and for a period of not more than 30 days next preceding such date of
filing.’ ” (Johnson, supra, 15 Cal.3d at p. 472.) Plaintiffs assert that
statements made by Brown at the Board meeting on November 16, 2021
should be treated as an “ ‘equivalent declaration of candidacy’ ” within the
meaning of this passage, and that he therefore had to be a district
resident for 30 days prior to that date.
We disagree. As Brown notes, while Johnson outlined what is
constitutionally permissible in this context, the Legislature then specified
in Government Code section 25041 that the 30-day residency requirement
is tied to “the deadline for filing nomination documents for the office of
supervisor” (Gov. Code, § 25041) and did not refer more broadly to an
“equivalent declaration of candidacy.” The text of Government Code
17 Because Government Code section 25041 by its terms does not
apply to appointments, we need not address the parties’ arguments as to
whether this provision of general law applies to a charter county such as
Alameda County. We also need not address Brown’s contention that the
Attorney General’s authorization to bring this quo warranto action did
not include authorization to bring a claim under Government Code
section 25041.
31
section 25041 provides no support for plaintiffs’ argument that it applies
to vacancy appointments.18
C. The Continuous Residency Requirement
The Alameda County Charter and the Alameda County
Administrative Code both require that a supervisor reside in their district
while in office (the continuous residency requirement). (Alameda County
Charter, § 4 [supervisor “must be an elector of the district which he/she
represents [and] must reside therein during his/her incumbency”];
Alameda County Admin. Code, § 2.04.020 [same].) Brown stated he
moved into an apartment in Oakland on November 12, 2021 and
registered to vote there. Plaintiffs contend, however, that Brown did not
satisfy the continuous residency requirement during his 14-month term in
office, because he did not intend to remain in Alameda County
permanently or indefinitely and thus never became a true “domiciliary.”
Statutory residency requirements (even those that use the general
term “residence”) often refer to the legal concept of “domicile.” (E.g.,
Walters v. Weed (1988) 45 Cal.3d 1, 7 [“We have recognized that [Gov.
Code, §§ 243 and 244] which use the term ‘residence’ actually mean ‘legal
residence’ or ‘domicile,’ and we have interpreted them accordingly”];
Smith v. Smith (1955) 45 Cal.2d 235, 239 (Smith).) The California
Supreme Court explained in Smith: “Courts and legal writers usually
distinguish ‘domicile’ and ‘residence,’ so that ‘domicile’ is the one location
with which for legal purposes a person is considered to have the most
settled and permanent connection, the place where he intends to remain
18 We decline to address plaintiffs’ argument, raised for the first
time in their reply brief, that Brown’s appointment violated Elections
Code section 201 because he allegedly did not prove at the November 16,
2021 meeting that he was eligible to register to vote in District 3.
32
and to which, whenever he is absent, he has the intention of returning,
but which the law may also assign to him constructively; whereas
‘residence’ connotes any factual place of abode of some permanency, more
than a mere temporary sojourn. ‘Domicile’ normally is the more
comprehensive term, in that it includes both the act of residence and an
intention to remain; a person may have only one domicile at a given time,
but he may have more than one physical residence separate from his
domicile, and at the same time. [Citations.] But statutes do not always
make this distinction in the employment of those words. They frequently
use ‘residence’ and ‘resident’ in the legal meaning of ‘domicile’ and
‘domiciliary,’ and at other times in the meaning of factual residence or in
still other shades of meaning.” (Smith, supra, 45 Cal.2d at p. 239.)
In its opinion assessing the issues in this case as part of the quo
warranto process, the Attorney General’s office concluded (consistent with
the arguments submitted to it by both parties) that “domicile” is the
standard for determining whether a supervisor “reside[s]” in the district
during their term, within the meaning of Alameda County Charter
section 4 and Alameda County Administrative Code section 2.04.020.
(105 Ops.Cal.Atty.Gen., supra, at pp. 116–117.) We agree and will apply
the domicile standard here.
“The law presumes that a domicile, once acquired, continues until it
is shown that a new domicile is acquired. [Citations.] At any given time,
there can only be one domicile. (Gov. Code, § 244, subd. (b).) Once
established, a domicile cannot be lost until another is gained. (Id., at
subd. (c).) Moreover, in order to change domiciles, there must be a union
of act and intent. (Id., at subd. (f); [citation].) Thus our courts have held
that two elements are indispensable to accomplishing a change of
33
domicile: actual residence in the new locality plus the intent to remain
there.” (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268, fn.
omitted.)
Plaintiffs contend Brown “never became a true ‘resident’ or
domiciliary of Alameda County Board of Supervisors’ District 3,” because
“he lived in Oakland for temporary purposes merely.” In its June 2022
opinion authorizing this quo warranto proceeding, the Attorney General’s
office outlined the evidence that Brown had submitted pertaining to his
move to District 3 and whether he intended to remain there.
(105 Ops.Cal.Atty.Gen., supra, at pp. 117–118.) Brown stated in part
that, when he moved to his friend’s Oakland apartment in
November 2021, his intention was “ ‘to make the Third District my
permanent home for now.’ ” (105 Ops.Cal.Atty.Gen., supra, at p. 118.) He
also stated he intended to continue living in Oakland at least until the
end of his term as supervisor. (Ibid.) Brown stated his family would not
be moving to Oakland but would remain at the Walnut Creek residence.
(Ibid.)
The Attorney General’s office stated that, based on the limited facts
presented, it could not determine “whether Brown’s acts and declarations
are enough to satisfy the ‘intent to remain’ element of establishing one’s
domicile. For example, although other conclusions are possible, it might
reasonably be inferred that the circumstances of Brown’s move indicate
an intent to domicile in Oakland for a fixed but temporary period of time,
with the eventual intent of returning to Walnut Creek.”
34
(105 Ops.Cal.Atty.Gen., supra, at p. 119.)19 The Attorney General
expressed no view as to whether “such a scenario [would] comport with
the legal principles governing an asserted change of domicile.” (Ibid.)
The Attorney General concluded, however, that “there are substantial
issues of law and fact surrounding Brown’s domicile during the term of
his incumbency, and these issues warrant a judicial resolution.” (Ibid.)
The Attorney General’s office issued its opinion in June 2022, while
Brown was still serving on the Board. (105 Ops.Cal.Atty.Gen., supra, at
p. 111.) As noted, the trial court, addressing the matter in April 2023
(after Brown’s term had ended), did not resolve the question whether
Brown satisfied the continuous residency requirement, finding that issue
to be moot.
We have concluded (in pt. II.A.2, ante) that the question whether
Brown satisfied the continuous residency requirement should be resolved
on the merits. But since that issue turns at least in part on the resolution
of factual questions pertaining to Brown’s acts and intent, we conclude it
should be addressed in the first instance by the trial court. We will
therefore reverse in part and remand for the trial court to address
whether Brown satisfied the continuous residency requirement. On
remand, the court may resolve any disputed factual matters and
determine whether, on the facts so found, Brown was domiciled in
District 3 during his term in office.
19 The Attorney General’s office emphasized that this was not the
only permissible inference from the available evidence, and that
additional evidence might be presented before the trial court.
(105 Ops.Cal.Atty.Gen., supra, at p 119, fn. 40.)
35
D. The Trial Court’s Management of the Quo Warranto
Proceeding
Apart from their arguments as to the merits of the prior residency
and continuous residency issues, plaintiffs claim the trial court
prejudicially abused its discretion in conducting the quo warranto
proceeding. Plaintiffs contend in part that the quo warranto matter did
not proceed quickly enough; the trial court made case management
decisions that effectively shifted the burden of proof to plaintiffs; and the
court erred by first holding a hearing on the prior residency issue before
proceeding to the continuous residency issue and finding it moot. In
connection with these points, plaintiffs ask this court to opine on whether
it is proper for a defendant in a quo warranto proceeding to serve
discovery. Plaintiffs argue the trial court here erred by “supporting”
Brown’s “threats to propound discovery.” Brown responds that much of
the delay now attacked by plaintiffs was caused by their own actions or
strategic decisions.
We need not address whether plaintiffs have shown any abuse of
discretion by the trial court in managing the proceedings, because
plaintiffs have shown no prejudice. As to plaintiffs’ claim that Brown did
not satisfy a prior residency requirement for his appointment to the
Board, the trial court reached the merits of that issue and found, as a
matter of law, that the statutes cited by plaintiffs do not impose a prior
residency requirement in this circumstance. We have concluded on de
novo review that the trial court was correct on that point. Any alleged
delays did not deprive plaintiffs of a hearing and a ruling on the merits of
this issue.
As to whether Brown complied with the continuous residency
requirement during his term in office, we have determined that question
36
should be resolved on the merits as well due to the importance of the
issue, and we are reversing in part and remanding for that purpose. We
need not consider plaintiffs’ suggestion that the trial court’s alleged errors
in managing the quo warranto proceeding provide a separate, procedural
ground for reversal as well. And for the same reasons, we need not decide
here the question plaintiffs raise about the propriety of discovery in a quo
warranto proceeding.
E. The Denial of Plaintiffs’ Motion for Judgment on the
Pleadings
Finally, plaintiffs contend briefly that the trial court erred by
denying their December 29, 2022 motion for judgment on the pleadings.
As noted, plaintiffs did not file that motion until after the court had
received briefing and heard argument on the merits of the prior residency
issue, which the court took under submission on December 6, 2022.
Plaintiffs asserted in the motion that Brown’s answer to the FAC was
defective, that the evidence as to Brown’s domicile during his term
favored plaintiffs’ position, and that the court should grant the motion as
to Brown’s “entire answer” and enter judgment in plaintiffs’ favor. In its
January 17, 2023 order finding in Brown’s favor on the merits of the prior
residency issue, the trial court found plaintiffs’ motion was moot as a
result of that ruling.
We find no error. Having ruled on the merits of the prior residency
issue (following an expedited merits hearing requested by plaintiffs), the
court was not obligated to revisit that ruling based on an alleged pleading
defect in Brown’s answer. And while the continuous residency issue was
not resolved by the court’s January 17, 2023 order, plaintiffs’ motion did
not purport to seek a partial judgment on the pleadings as to a portion of
the case (such as a part of Brown’s answer or a slice of the single,
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undifferentiated cause of action in plaintiffs’ FAC). (See Code Civ. Proc.,
§ 438, subd. (c)(2) [motion is to be directed to an entire complaint or any
cause of action, or to an entire answer or one or more affirmative
defenses]; Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th
446, 452 [motion for judgment on the pleadings, like a general demurrer,
ordinarily “does not lie as to a portion of a cause of action”].) The court
was not required to divine that plaintiffs wanted it to consider granting
such unconventional relief.
III. DISPOSITION
The judgment is affirmed in part and reversed in part. We affirm
the trial court’s ruling that no prior residency requirement prohibited
Brown’s appointment to the Board. We reverse the trial court’s
determination that the question whether Brown satisfied the continuous
residency requirement during his term in office is moot. The matter is
remanded for further proceedings pertaining to that question. The
parties shall bear their own costs on appeal.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
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Trial Court: Superior Court of California, County of Alameda
Trial Judge: Hon. Michael M. Markman, Hon. Harold Kahn
Counsel: Law Offices of Jason A. Bezis and Jason A. Bezis for
Plaintiffs and Appellants.
Meyers Nave, Deborah J. Fox and Matthew B. Nazareth for
Defendant and Respondent.
The People ex rel. Alameda County Taxpayers’ Association, Inc., et al. v. Brown – A168562