Cummings v. Stanley

• Decision Date: 04 September 2009
• Docket Number: No. A123743.,A123743.
• Citation: 99 Cal. Rptr. 3d 284,177 Cal.App.4th 493
• Court: California Court of Appeals Court of Appeals
• Parties: PAUL CUMMINGS, Plaintiff and Appellant, v. WALTER STANLEY III et al., Defendants and Respondents.

177 Cal.App.4th 493

99 Cal. Rptr. 3d 284

PAUL CUMMINGS, Plaintiff and Appellant, v. WALTER STANLEY III et al., Defendants and Respondents.

No. A123743.

Court of Appeals of California, First District, Division One.

September 4, 2009.

Law Office Of George G. Benetatos and George G. Benetatos for Plaintiff and Appellant.

Bell, McAndrews & Hiltachk and Charles H. Bell, Jr., for California Republican Party as Amicus Curiae on behalf of Plaintiff and Appellant.

Baker & McKenzie, Tod L. Gamlen and Gerald M. Salcido for Defendants and Respondents.

OPINION

GRAHAM, J.^*

Plaintiff brought the present action pursuant to Elections Code sections 16100, subdivision (b), and 16440, subdivision (a), to contest the eligibility of defendants, Walter Stanley III, Lea Smart, Casey Fargo, Deslar Patten, Christopher Kuhn, John W. Bartlett, and David Latour, for election to positions on the Alameda County Republican Central Committee (the Committee).¹ The trial court dismissed the action on the ground that plaintiff failed to file the action within the statutory five-day time limit for primary election contests. We conclude that an election of party central committee members is not a primary election, and is governed by a 30-day time limit to file a contest to elections other than primary elections. We therefore find that plaintiff timely filed his election contest, and reverse the judgment.

STATEMENT OF FACTUAL AND PROCEDURAL HISTORY

On June 3, 2008, defendants were elected as members of the Committee from various districts within Alameda County. On July 8, 2008, the "official canvass" for the election was completed by the Alameda County Board of Supervisors, and defendants were declared elected to office as members of the Committee. Plaintiff was a qualified elector of Alameda County and chairman of the Committee when the election occurred, although he did not reside and vote in any of the assembly districts from which defendants were elected.

On July 25, 2008, plaintiff filed a statement of election contest (the statement) in which he claimed that respondents were "not eligible to seek and hold membership" in the Committee under section 8001, subdivision (a). Plaintiff also asserted that the Registrar of Voters of Alameda County erroneously declared defendants elected to the Committee despite their lack of eligibility to "hold membership" and lack of compliance with the eligibility requirements of section 8001, subdivisions (a) and (b). He requested a finding that defendants were "erroneously elected," and an order setting aside their election as members of the Committee.

Defendants filed answers in which they generally denied the allegations of the statement and asserted defenses or objections, one of which is that the action "is untimely" due to the failure of plaintiff to file the statement within the five-day time limit specified in section 16421 to contest a primary election. They requested dismissal of the action.

A hearing on the election contest was held on November 12, 2008, at which the trial court considered the declarations and other documentary evidence presented by the parties. The court found that the election of June 3, 2008, which resulted in the declaration of defendants as elected members of the Committee, was a primary rather than general election. As a result, plaintiff was bound by the five-day time limit to file the primary election contest (§ 16421), not the 30-day time limit that governs general elections (§ 16401). Therefore, plaintiff's action was dismissed as "untimely" filed. This appeal followed.

DISCUSSION

Certain facts in the present appeal are undisputed: the election of defendants occurred on June 3, 2008; the result of the election was officially certified by the Alameda County Board of Supervisors on July 8, 2008; plaintiff filed the election contest on July 25, 2008, more than five days but less than 30 days after the official canvass was completed. The parties agree that if plaintiff has contested a "primary election" his contest is untimely and cannot proceed, but if he has contested a "general election" result his action is timely.

The dispute before us focuses on the nature of the election. Plaintiff claims that defendants were not nominated in a primary election, but rather were elected as members of the Committee in a "general election," and thus under section 16401, subdivision (d), he had 30 days after the official declaration of the result to file the election contest. Defendants maintain that the June 3, 2008, election is specifically defined as a "direct primary election" in section 316, and plaintiff did not meet the applicable five-day deadline of section 16421 to file his election contest.

I. The Standing of Plaintiff to Bring the Present Action.

Before proceeding to the merits of plaintiff's claim that he has filed a timely contest to a general election, we confront two preliminary issues raised by defendants in this appeal. First, defendants argue that plaintiff "has no standing to contest" the election "under either of two statutory grounds provided by the Legislature." They maintain that plaintiff cannot bring an election contest under section 16100, as neither does he reside nor may he vote in any of the districts within Alameda County in which defendants were elected.² They also claim that he cannot contest the election under section 16101, because he was not a "candidate at a primary election" as required by that statute.

(1) A lack of standing is a jurisdictional defect to an action that mandates dismissal. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438 [261 Cal.Rptr. 574, 777 P.2d 610]; Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592 [24 Cal.Rptr.3d 50].) "`[A] complaint by a party lacking standing fails to state a cause of action by the particular named plaintiff, inasmuch as the claim belongs to somebody else. [Citation.] A more accurately stated rationale would be that there is a defect in the parties, since the party named as plaintiff is not the real party in interest.' (Cloud v. Northrop Grumman Corp. [(1998)] 67 Cal.App.4th [995,] 1004 [79 Cal.Rptr.2d 544] . . . .) `Plaintiff's lack of standing to sue on the claim is treated as a "jurisdictional" defect and is not waived by defendant's failure to raise it by demurrer or answer: "[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding."' (Weil [&] Brown, Cal. Practice Guide[: Civil Procedure Before Trial (The Rutter Group 2003)] ¶ 2:78, p. 2-21, italics omitted.) `Lack of standing negates existence of a cause of action and is not waived by failure to object; it can even be raised for the first time on appeal.' (Id., ¶ 2:81.1, p. 2-22.)" (O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1095 [9 Cal.Rptr.3d 286] (dis. opn. of Grignon, Acting P. J.).)

(2) Plaintiff's authority and standing to challenge the election of defendants to the Committee must be based exclusively on section 16100.³ (California Family Bioethics Council, LLC v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1347 [55 Cal.Rptr.3d 272]; see also Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1173 [131 Cal.Rptr.2d 402]; People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914, 932-933 [131 Cal.Rptr.2d 274]; Alden v. Superior Court (1963) 212 Cal.App.2d 764, 768 [28 Cal.Rptr. 387].) "`Strict rules embodied in the Elections Code govern a court's review of a properly contested election.'" (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192 [105 Cal.Rptr.2d 214, 19 P.3d 567].) "The bases for a postelection challenge, i.e., an `election contest,' are enumerated in section 16100. And, as our Supreme Court pointed out in Friends of Sierra Madre v. City of Sierra Madre, supra, 25 Cal.4th 165, these grounds are exclusive: `That the court's authority to invalidate an election is limited to the bases for contest specified in Elections Code section 16100 and that section is exclusive is strongly suggested by the nature of the grounds for contest therein enumerated.' [Citations.]" (McKinney v. Superior Court (2004) 124 Cal.App.4th 951, 958 , fn. omitted (McKinney); see also Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 773-774 [261 Cal.Rptr. 108].)

(3) Section 16100 specifies that, "Any elector of a county, city, or of any political subdivision of either may contest any election held therein," on the ground, among others, "(b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office."⁴ Plaintiff was an elector of Alameda County in which the election was held,⁵ and claims that defendants were not eligible for the office of Committee member. Defendants' effort to challenge plaintiff's standing by pointing out that he was an elector in one district while they were elected in other districts within the county is unavailing. The election was for positions on the county Committee, and the statute explicitly and unambiguously grants the right to an elector of the county to contest an election. The provisions of section 16100 "`allow an elector of a given city or county to challenge an election held therein on six specified grounds. . . .' [Citation.]" (Friends of Sierra Madre v. City of Sierra Madre, supra, 25 Cal.4th 165, 194, italics added.) The language of the statute on this point is eminently clear, and we see no reason to depart from it. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 829-830 [65 Cal.Rptr.3d 251]; Howard Jarvis Taxpayers Assn. v. County of Orange (2003) 110 Cal.App.4th 1375, 1381 [2 Cal.Rptr.3d 514].) Plaintiff is an aggrieved party who has standing to bring the present action and appeal.

II. Subject Matter Jurisdiction.

Defendants also present the related argument that the trial court had "no subject matter jurisdiction" over the election contest brought by plainti...