Foster v. Ronco CA3

Filed 10/27/21 Foster v. Ronco 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

(Placer)

----

DIANNE FOSTER et al., C092805

Plaintiffs and Appellants, (Super. Ct. No.

S-CV-0045280)

v.

RYAN RONCO, as County Clerk/Recorder/Registrar

of Voters, etc.,

Defendant and Respondent.

Plaintiffs Dianne Foster and Virginia Valenzuela (plaintiffs) are the proponents of

a local recall campaign against the members of the board of directors of the Foresthill

Public Utility District (the district). To qualify the recall petitions for the ballot, plaintiffs

needed to obtain at least 962 valid signatures within a 60-day circulation period

beginning on March 18, 2020. On May 18, 2020, the last day of the circulation period,

plaintiffs submitted four recall petitions, each containing just over 1,200 signatures.

However, upon examination of the petitions, the local elections office determined that

many of the signatures were invalid and, as a result, the recall petitions fell just short of

the minimum number of valid signatures required to trigger an election.

1

Plaintiffs then filed a petition for writ of mandate seeking an order compelling the

local elections official (defendant) to allow additional time for plaintiffs to gather

signatures. Plaintiffs argued that stay-at-home orders imposed in response to the

COVID-19 pandemic prevented them from obtaining enough signatures within the

statutory deadline, in violation of their First Amendment rights. The trial court denied

the writ petition.

In this appeal, plaintiffs, proceeding in propria persona, seek to reverse the

superior court’s judgment denying their petition for writ of mandate. We conclude that

the appeal is moot as to the director who subsequently was voted out of office, but

otherwise affirm the judgment.

BACKGROUND LAW

“Recall is the power of the electors to remove an elective officer.” (Cal. Const.,

art. II, § 13.) Although the California Constitution speaks of recall as a power reserved to

the people, it grants the Legislature broad authority to enact laws governing the recall

process. (Cal. Const., art. II, §§ 16, 19; Libertarian Party of California v. Eu (1980) 28

Cal.3d 535, 540.) The statutes governing recall elections are contained in section 11000

et seq. of the Elections Code.1 Sections 11200 through 11242 address the specific

procedures governing the recall of local elective officers. (See Persky v. Bushey (2018)

21 Cal.App.5th 810, 821.)

Under the statutory scheme, a recall is commenced by the service, filing, and

publication/posting of a notice of intention to circulate a recall petition. (§§ 11006,

11020-11022.) In the case of a local officer, the notice is filed with the local elections

official. (§ 11021.) Within seven days thereafter, the officer sought to be recalled may

file an answer. (§§ 11023-11024.)

1 Undesignated statutory references are to the Elections Code.

2

The proponents of the recall may not circulate the petition for signatures until the

local elections official notifies them the form and wording of the petition meets statutory

requirements. (§§ 11040-11043.5.) Once such approval is obtained, the amount of time

proponents have to circulate the petition depends on the number of registered voters in

the electoral jurisdiction. (§ 11220.) To qualify for the ballot, the petition must be

signed by a specified percentage of the registered voters in the electoral jurisdiction,

calculated as of the time of the last report of registration. (§ 11221.)

When a petition is presented for filing, the elections official must determine

whether the number of signatures affixed to the petition, prima facie, equals or exceeds

the minimum number of signatures required. (§ 11222.) If so, the petition is deemed

filed as of that date. (§ 11222.) If not, the petition is void and no “further action” is

taken. (§ 11222.)

After the petition is filed, the elections official has 30 (business) days to examine

the petition and verify the signatures. (§ 11224.) If the number of valid signatures is

greater than the required number, the elections official must certify the petition as

sufficient. (Ibid.) If the number of valid signatures is less than the required number, the

petition must be certified as insufficient and “no action shall be taken on it.” (§ 11226;

see also §§ 11224, 11225.) A failure to secure a sufficient number of signatures does not

preclude the proponents from initiating another recall petition. (§§ 11225, subd. (g),

11300; Moore v. City Council of Maywood (1966) 244 Cal.App.2d 892, 896.)

BACKGROUND FACTS AND PROCEDURE

On February 25, 2020, plaintiffs filed and served a notice of intention to circulate

petitions to recall four members of the district’s board of directors. On March 18, 2020,

the Placer County elections office approved the form of the petitions, allowing plaintiffs

to begin circulating them. Based on the number of active registered voters in Foresthill,

plaintiffs had 60 days, until May 18, 2020, to collect and submit 962 valid signatures for

each of the four petitions.

3

Meanwhile, in early 2020, in response to the COVID-19 global pandemic,

Governor Newsom and the California Department of Public Health (DPH) issued a series

of orders aimed at slowing the spread of the virus. Among them, on March 19, 2020,

Governor Newsom issued a statewide “stay-at-home” order, which ordered all people

living in California to stay at home, except for those needed to maintain critical

infrastructure. (Executive Order N-33-20 (Mar. 19, 2020)

<https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf> [as of Oct. 25, 2021],

archived at <https://perma.cc/8J44-47H6>.) The stay-at-home restrictions remained in

place through early May 2020, when California announced a four-stage plan to gradually

ease restrictions and reopen lower-risk businesses, subject to mandatory physical

distancing measures. (Executive Order N-60-20 (May 4, 2020)

<https://www.gov.ca.gov/wp-content/uploads/2020/05/5.4.20-EO-N-60-20.pdf> [as of

Oct. 25, 2021], archived at <https://perma.cc/QF62-7ERX>; DPH Order (May 7, 2020)

<https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COV

ID-19/SHO%20Order%205-7-2020.pdf> [as of Oct. 25, 2021], archived at

<https://perma.cc/6A62-GUYA>.) Since then, the state, counties, and localities have

implemented a variety of measures—intensifying or diminishing restrictions—in

attempting to strike the proper balance between public health, economic growth, and

activities. (See, e.g., DPH Order (Aug. 28, 2020)

<https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COV

ID-19/8-28-20_Order-Plan-Reducing-COVID19-Adjusting-Permitted-Sectors-

Signed.pdf> [as of Oct. 25, 2021], archived at <https://perma.cc/U24P-GTVL>.)2

2 On our own motion, we take judicial notice of the March 19, 2020 Executive

Order N-33-20; the May 4, 2020 Executive Order N-60-20; the May 7, 2020 DPH Order;

and the August 28, 2020 DPH Order. (Evid. Code, § 452.)

4

In March or April 2020, plaintiffs contacted the Secretary of State’s office and

requested that the deadline to submit signatures be extended or, alternatively, that the

required number of signatures be reduced. The Secretary of State’s office informed

plaintiffs that it only oversees statewide recalls, and that plaintiffs’ local elections official

is responsible for local recall petitions.

Although plaintiffs claim the local elections official would not grant an extension

without Secretary of State authorization, there is nothing in the record showing that

plaintiffs ever requested an extension from defendant. Plaintiffs instead apparently

focused their efforts on trying to obtain the required number of signatures. From March

through May 2020, the proponents circulated the recall petition, collecting between 1,215

and 1,224 signatures for each petition.

On May 18, 2020, the proponents submitted the signatures they collected to the

Placer County elections office for verification. On June 30, 2020, the proponents were

notified that none of the petitions contained enough valid signatures (962) to trigger a

recall election. The petitions were determined to be between 14 and 52 signatures short

of the minimum number required. Based on the examination results, defendant certified

each petition as insufficient.

On July 28, 2020, plaintiffs filed a writ petition in the Sacramento County

Superior Court. On July 31, the court set the matter for hearing on the merits on August

6, 2020. On August 3, 2020, after reviewing plaintiffs’ opening memorandum of points

and authorities, the trial court vacated the hearing based on concerns about improper

venue.

On August 11, 2020, plaintiffs filed a second petition for a writ of mandate

(hereinafter, the “writ petition”), this time in the Placer County Superior Court.3 The

3 The writ petition failed to name the four individual board members as real parties

in interest. Because we deny this appeal on other grounds, we find it unnecessary to

5

allegations of the writ petition were virtually identical to those in the Sacramento action,

except that plaintiffs (1) removed the Secretary of State as a named party-respondent, and

(2) deleted the previously referenced August 7, 2020 deadline to have the petition

included in the ballot for the November 2020 election.

The petition contained two causes of action, alleging that section 9014,

subdivision (b), and section 11042, subdivision (b), are unconstitutional as applied in

light of the COVID-19 stay-at-home orders. Plaintiffs sought a peremptory writ of

mandate compelling defendant either to accept the signatures submitted as sufficient to

qualify the petitions for a recall election, or to allow the proponents an “additional 2-

week extension”—presumably from the date of judgment and not the May 18, 2020

statutory deadline—to gather and submit additional signatures.

The writ petition was set for hearing on September 10, 2020. On September 1,

2020, defendant filed an opposition to the writ petition. On September 3, 2020, plaintiffs

filed a supporting memorandum, but the court rejected it as untimely.4

On September 10, 2020, after hearing oral argument, the trial court issued an

(unsigned) memorandum opinion denying the writ petition. The trial court began by

characterizing the writ petition as a “confusing hodge-podge,” addressing provisions of

the Elections Code “which are clearly inapplicable to the relief” sought. The court noted

that section 9014, subdivision (b) deals with proposed initiative or referendum measures,

not recall petitions, and that section 11042, subdivision (b) deals with the process to

approve the form and content of a recall petition before circulation. Thus, the court

consider whether the board members were indispensable parties. (See Sonoma County

Nuclear Free Zone ’86 v. Superior Court (1987) 189 Cal.App.3d 167, 173; Tracy Press,

Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1297.)

4 Although plaintiffs refer to the September 3 memorandum in their appellate brief,

they do not challenge the trial court’s refusal to consider it.

6

denied the specific relief requested in the first and second causes of action of the writ

petition.

Nevertheless, the court concluded that the gravamen of the writ petition was

plaintiffs’ claim that the statewide stay-at-home orders prevented the proponents from

gathering enough valid signatures to qualify their petitions for the November 2020 ballot.

The trial court considered and rejected this claim on the merits. The court explained:

“From their own allegations, it is evident [plaintiffs] were able to obtain more than the

required number of signatures, directly contradicting their assertions that the [COVID-19

restrictions] impeded their ability to obtain signatures for the recall petitions.” According

to the court, “[plaintiffs] simply came up short,” and “ran out of time” to verify the

sufficiency of the signatures before filing the petitions. Thus, the court ruled that

plaintiffs failed to make a sufficient showing that they were prevented from obtaining the

required number of signatures due to the state’s COVID-19 restrictions. Further, even if

there was merit to their substantive claim, the court was persuaded that granting the

requested writ relief would substantially interfere with the conduct of the November 2020

election, in contravention of section 13314, subdivision (a)(2).

On October 6, 2020, plaintiffs filed a premature notice of appeal.5 On October 8,

2020, the court entered its judgment denying the writ petition, incorporating its prior

written decision as an exhibit.

5 We have exercised our discretion under California Rules of Court, rule

8.104(d)(2), to treat the notice of appeal as having been filed immediately after the entry

of judgment.

7

DISCUSSION

I

Mootness

The trial court construed the writ petition as seeking to qualify the recall petitions

for the November 2020 election. Thus, as a preliminary matter, we consider whether this

appeal is moot due to the completion of that election.

A case becomes moot when a court ruling can have no practical effect or cannot

provide the parties with effective relief. (Corrales v. Bradstreet (2007) 153 Cal.App.4th

33, 46.) Here, although plaintiffs’ stated goal was to qualify the recall petitions for the

November 2020 election, the relief requested in their writ petition was not tied to that

election. Under the Elections Code, the time for holding a recall election is triggered by a

finding of sufficiency and the corresponding issuance of an order scheduling a recall

election. (§§ 11225, 11240-11242.) Once such an order issues, the recall election must

be held “not less than 88, nor more than 125, days after the issuance of the order.”

(§ 11242.) If a regular or special election is to be held within this time period, the statute

provides that the recall election must be held “on the same day[ ] and consolidated with”

that election. (§ 11242.) Otherwise, the governing body must call a special election.

(See § 12001; Baroldi v. Denni (1961) 197 Cal.App.2d 472, 477.)

In this case, because the petitions were found to be insufficient, there never was an

order for an election. Thus, the statutory requirements governing the timing of the

election, which apply only after the issuance of such an order, never applied. It follows

that the petitions were not required to qualify for the November 2020 ballot and,

therefore, the passage of the November 2020 election did not (by itself) render this appeal

moot.

Nonetheless, plaintiffs brought to our attention in their opening brief that board

member Linda Cholcher was voted out of office at the November 2020 election. Since

board member Cholcher no longer holds office, she obviously cannot still be recalled.

8

Thus, as to her, the appeal is moot. (Granger v. Legislative Body of Escondido (1936) 15

Cal.App.2d 557, 558.) We now turn to the merits of the writ petition, beginning with our

standard of review.

II

Standard of Review

In this appeal, plaintiffs seek to reverse the trial court’s judgment denying their

petition for a traditional writ of mandate. A traditional writ of mandate lies to compel the

performance of a duty required by law. (Code Civ. Proc., § 1085.) To obtain a writ of

mandate under Code of Civil Procedure section 1085, a plaintiff must show (1) a clear,

present, and usually ministerial duty on the part of the defendant to act, and (2) a

correlative clear, present, and beneficial right in the plaintiff to the performance of that

duty. (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507.)

On appeal from a trial court’s decision denying a traditional writ of mandate, we

review the record to determine whether the trial court’s findings and judgment are

supported by substantial evidence. (Howard Jarvis Taxpayers Assn. v. Amador Water

Agency (2019) 36 Cal.App.5th 279, 291.) However, to the extent resolution of the issues

depends on the interpretation of a statute or constitutional provision, or application of the

law to undisputed facts, we decide those issues de novo. (Ibid.; Corrales v. Bradstreet,

supra, 153 Cal.App.4th at pp. 47-48.)

A party challenging the constitutionality of a statute carries a heavy burden. (City

of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 811.) There is a strong presumption in

favor of the constitutionality of a statute and any doubts must be resolved in favor of the

Legislature’s action. (Fox v. Federated Department Stores, Inc. (1979) 94 Cal.App.3d

867, 880; In re Ricky H. (1970) 2 Cal.3d 513, 519 [courts will presume a statute is valid

unless unconstitutionality clearly, positively, and unmistakably appears].)

9

III

Application of the 60-day Circulation Deadline

As discussed above, to qualify the recall petitions for the ballot, the proponents

were required to obtain at least 962 valid signatures within the 60-day circulation period

beginning on March 18, 2020. (§§ 11220, subd. (a)(2), 11221, subd. (a)(2).) Plaintiffs

contend that the 60-day circulation deadline was unconstitutional in light of the stay-at-

home restrictions imposed in response to the COVID-19 pandemic. We conclude, as did

the trial court below, that plaintiffs have failed to carry their burden to demonstrate the

circulation deadline was unconstitutional as applied.6

An as-applied challenge to the constitutional validity of a statute “contemplates

analysis of the facts of a particular case or cases to determine the circumstances in which

the statute or ordinance has been applied and to consider whether in those particular

circumstances the application deprived the individual to whom it was applied of a

protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) The result of

a successful as-applied challenge is not invalidation of the statute as a whole, but an order

enjoining the specific unlawful application. (California Family Bioethics Council, LLC

v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1339.)

The statute at issue in this case is section 11220, subdivision (a), which imposed a

60-day deadline for the proponents to gather enough valid signatures to trigger a recall

election. (§ 11220, subd. (a)(2).) Plaintiffs contend application of the 60-day deadline,

in conjunction with the state’s stay-at-home restrictions, effectively prevented them from

6 It bears repeating that the two causes of action alleged in the complaint challenged

statutes wholly unrelated to the 60-day circulation deadline. Nevertheless, since the

validity of the 60-day circulation deadline was litigated below, we conclude the issue was

preserved for appeal.

10

obtaining the requisite minimum number of signatures, thereby violating their First

Amendment rights.

As a general rule, the administration of elections is a matter that the United States

Constitution largely entrusts to the states. (Kusper v. Pontikes (1973) 414 U.S. 51, 57 [38

L.Ed.2d 260, 266].) “ ‘[A]s a practical matter, there must be a substantial regulation of

elections if they are to be fair and honest and if some sort of order, rather than chaos, is to

accompany the democratic processes.’ ” (Feldman v. Reagan (9th Cir. 2016) 843 F.3d

366, 386.) However, as in all other areas of governmental action, the exercise of such

power is subject to constitutional limitations. (Gould v. Grubb (1975) 14 Cal.3d 661,

669.)

When analyzing whether a state election law impermissibly impinges on rights

protected by the First Amendment, we apply the framework derived from the United

States Supreme Court’s decisions in Anderson v. Celebrezze (1983) 460 U.S. 780 [75

L.Ed.2d 547] and Burdick v. Takushi (1992) 504 U.S. 428 [119 L.Ed.2d 245]. (Edelstein

v. City and County of San Francisco (2002) 29 Cal.4th 164, 174 (Edelstein); accord,

Miller v. Thurston (8th Cir. 2020) 967 F.3d 727, 736 (Miller); Voting for America, Inc. v.

Steen (5th Cir. 2013) 732 F.3d 382, 387-388 (Steen); Marcellus v. Virginia State Board of

Elections (4th Cir. 2017) 849 F.3d 169, 175; SAM Party of New York v. Kosinski (2d Cir.

2021) 987 F.3d 267, 274.)

Under the Anderson-Burdick framework, the rigorousness of our inquiry depends

upon the extent to which the challenged election law burdens the First Amendment rights

that the plaintiff seeks to vindicate. (Edelstein, supra, 29 Cal.4th at p. 174.) We must

“ ‘weigh “the character and magnitude of the asserted injury to the rights . . .” against

“the precise interests put forward by the State as justifications for the burden imposed by

its rule,” taking into consideration “the extent to which those interests make it necessary

to burden the plaintiff's rights.” ’ ” (Steen, supra, 732 F.3d at p. 388.) State rules that

impose “ ‘severe burdens on the plaintiffs’ rights,’ [ ] must be ‘narrowly tailored and

11

advance a compelling state interest.’ [Citation.] ‘Lesser burdens, however, trigger less

exacting review, and a State’s “important regulatory interests” will usually be enough to

justify “reasonable, nondiscriminatory restrictions.” ’ ” (Miller, supra, 967 F.3d at p.

736; accord, Edelstein, at p. 174; Steen, at p. 388; SAM Party of New York v. Kosinski,

supra, 987 F.3d at p. 274.)

The difficulty here is that plaintiffs’ brief does not even acknowledge this

standard, let alone apply it. There is no discussion of the severity of the alleged burden

on their First Amendment rights or the level of scrutiny that should apply. Nor does the

brief make any effort to weigh the alleged burden on plaintiffs’ First Amendment rights

against the state’s legitimate regulatory interests. And while the brief refers to several

federal decisions cited in their writ petition, the brief generally fails to discuss the facts of

those cases or explain how they apply. Instead, plaintiffs simply assert, in a conclusory

fashion, that all the cited cases share the “ ‘common thread’ ” of finding state petitioning

requirements to be unconstitutional in the context of COVID-19 restrictions.

Such generalized claims, unsupported by meaningful analysis and citation to

authority, are inadequate to carry an appellant’s burden to establish error. (Allen v. City

of Sacramento (2015) 234 Cal.App.4th 41, 52; Department of Alcoholic Beverage

Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078;

Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Thus, we are well within our

authority to deem the contention forfeited. (Allen, supra, at p. 52.)

Nonetheless, even if considered on the merits, plaintiffs’ claim fails. As defendant

noted in opposing the writ petition, none of the cases cited by plaintiffs are factually

analogous. In those cases, the plaintiffs obtained orders enjoining statutory signature

filing deadlines by showing the deadlines, in conjunction with stay-at-home restrictions,

would unconstitutionally impair the ability to collect the minimum number of signatures

12

necessary to qualify for the ballot.7 (Fair Maps Nevada v. Cegavske (D.Nev. 2020) 463

F.Supp.3d 1123, 1130; Esshaki v. Whitmer (E.D.Mich. 2020) 455 F.Supp.3d 367, 369-

371, 383-384, stay granted in part by Esshaki v. Whitmer (6th Cir. 2020) 813 Fed. Appx.

170, 171; Thompson v. DeWine (S.D.Ohio 2020) 461 F.Supp.3d 712, 717-718, 735-736,

revd. by Thompson v. DeWine (6th Cir. 2020) 976 F.3d 610, 620.)

Here, in contrast, plaintiffs did not seek to enjoin the 60-day deadline to secure

additional time to gather signatures before the deadline. Plaintiffs instead gambled that

they would be able to obtain the requisite number of signatures notwithstanding the

effects of the stay-at-home orders. As it turns out, plaintiffs were able to collect more

than the required minimum number of signatures by the May 18 deadline. It was only

later—after being notified they did not have enough valid signatures—that plaintiffs

sought a belated “extension” of the statutory deadline. Thus, the trial court reasonably

concluded plaintiffs failed to show that the COVID-19 restrictions unconstitutionally

burdened their First Amendment rights.

Plaintiffs accuse the trial court of failing to adequately consider how the stay-at-

home restrictions affected their ability to obtain “valid” signatures. We see no error.

Although we acknowledge the stay-at-home orders likely made obtaining valid signatures

more difficult, this by itself is not sufficient to prove a First Amendment violation. (See,

e.g., Miller, supra, 967 F.3d at p. 738.) That plaintiffs were able to collect approximately

125 percent of the required minimum number of signatures, and 95 to 99 percent of the

7 Plaintiffs also cite Miller v. Thurston (W.D.Ark. 2020) 462 F.Supp.3d 930, 934-

937, but that court declined to enjoin the signature filing deadline, granting an injunction

only as to in-person signature and notarization requirements, which itself was reversed in

Miller, supra, 967 F.3d at page 741. Thus, Miller v. Thurston is unavailing to plaintiffs.

In their appellate brief, plaintiffs also cite a Sacramento Superior Court opinion, Macarro

v. Padilla (Super. Ct. Sac. County, 2020, No. 34-2020-80003404). But a trial court

opinion in an unrelated case has no precedential value. (Bolanos v. Superior Court

(2008) 169 Cal.App.4th 744, 761; In re Molz (2005) 127 Cal.App.4th 836, 845.)

13

required minimum number of valid signatures, supports the trial court’s finding that

plaintiffs’ signature gathering efforts were not unconstitutionally impaired.

This is not to say that plaintiffs could not have obtained an extension if they had

timely applied for one before the circulation deadline expired. However, plaintiffs made

a calculated decision to wait to file this action until after the signatures were submitted.

They must bear the consequences of that decision.

Under the Elections Code, once a recall petition is determined to contain less than

the required number of valid signatures, the elections official has a ministerial duty to

certify it as insufficient and to take no further action. (§§ 11222, subd. (b), 11224, subd.

(a), 11225, subd. (g), 11226.) There is no provision in the election laws allowing a

proponent to file supplemental signatures after a recall petition is found to be insufficient.

(§§ 11224, subd. (a), 11225, subds. (c) & (g), 11226; see Hartman v. Kenyon (1991) 227

Cal.App.3d 413, 420.) Thus, even if the circulation deadline could somehow be extended

at this late date—a dubious proposition—it would be unavailing to plaintiffs since the

petitions already were certified as insufficient. (Wilcox v. Enstad (1981) 122 Cal.App.3d

641, 648.) While we recognize that election statutes should be liberally construed to

enable citizens to exercise their rights of recall, “recognition of this policy ‘does not

allow the courts to enlarge the scope of a procedural statute where the statutory

provisions are clear.’ ” (Hartman, supra, at p. 420; accord, Wilcox, supra, at pp. 651-

652, 655.) Nothing in this case convinces us that these procedural restrictions are

unconstitutional. Accordingly, we affirm.

14

DISPOSITION

The appeal is dismissed as moot as to the petition to recall board member

Cholcher. Otherwise, the judgment denying the writ petition is affirmed. Defendant

shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

KRAUSE , J.

We concur:

HULL , Acting P. J.

RENNER , J.

15