Fenton v. Board of Directors

• Decision Date: 07 June 1984
• Citation: 203 Cal.Rptr. 388,156 Cal.App.3d 1107
• Court: California Court of Appeals Court of Appeals
• Parties: Anne L. FENTON, Plaintiff and Respondent, v. BOARD OF DIRECTORS OF the GROVELAND COMMUNITY SERVICES DISTRICT, Defendant and Appellant. F002607.

Page 388

203 Cal.Rptr. 388

156 Cal.App.3d 1107

Anne L. FENTON, Plaintiff and Respondent, v. BOARD OF DIRECTORS OF the GROVELAND COMMUNITY SERVICES DISTRICT, Defendant and Appellant.

F002607.

Court of Appeal, Fifth District, California.

June 7, 1984.

As Modified June 12, 1984.

[156 Cal.App.3d 1110] Krause, Timan, Baskin, Shell & Grant, Marshall W. Krause, Larkspur, Bush, Ackley, Milich & Hallinan, Michael D. Milich, Oakdale, for defendant and appellant.

John J. Woods, Sonora, for plaintiff and respondent.

OPINION

VAN AUKEN, Associate Justice. ^*

The major issue involved in this appeal is whether or not the trial court erred when it ruled that respondent was "residing" within the district under Government Code section 61200. The trial court found that although respondent had been physically residing outside of the district, she was in fact "domiciled" within the district at Big Oak Flat and was therefore "residing" within the district under Government Code section 61200.

For reasons hereinafter stated, we agree with the trial court's decision and affirm the declaratory relief granted below.

FACTS

Facts Regarding the Underlying Controversy

In the fall of 1981, respondent, Anne L. Fenton, ran as an unopposed candidate for director of the Groveland Community Services District (appellant). On October 27, 1981, pursuant to Elections Code section 23520, the Tuolumne County Board of Supervisors appointed respondent to the board of directors of the district in lieu of an election. Respondent took office on November 27, 1981.

On December 1, 1981, the district's board of directors held a public hearing to determine whether or not respondent was, at that time, a resident of the district and thus qualified to hold office as a director pursuant to Government Code section 61200. At the conclusion of the hearing, a majority of the board of directors concluded that respondent did not reside within the district and voted to deny respondent her seat on the board and to send the matter to the Tuolumne County Superior Court for adjudication.

On December 31, 1981, respondent petitioned the superior court for writs of mandate and certiorari, requesting the superior court to order the board of directors of the district to seat her on the board and to annul the board's action denying her a seat. The superior court entered judgment against respondent and denied the petition on May 20, 1982. On May 27, 1982, the board of directors of the district adopted a resolution declaring a vacancy on the board, effective that date, due to the unseating of respondent.

Respondent then filed this action, a complaint for declaratory relief. The sole issue at trial was whether or not respondent was "residing" within the district under Government Code section 61200. The court found that although respondent had been physically residing outside of the district, she in fact was domiciled at Big Oak Flat, which is within the district, and was therefore "residing" within the district under Government Code section 61200.

Facts Regarding Where Respondent Was "Residing"

The following facts were stipulated to by both parties to this action in the lower court proceeding:

Respondent is the owner of real property located on Big Oak Road in Big Oak Flat, California. Respondent also owns real property located on Highway 120 known as Ferndale, California.

The Big Oak Flat property is within the boundaries of the Groveland Community Services District, while the Ferndale property is approximately four miles outside of the boundaries of that district.

Respondent previously applied for a homeowner's property tax exemption on the Ferndale property when the exemption first became available in 1968. That exemption has been in continuous effect from 1968 to the present. Further, the parties have stipulated that in order to qualify for the homeowner's property tax exemption, respondent was required to declare under penalty of perjury that the property was her principal place of residence on March 1 of the year in which she claimed the exemption.

It was further stipulated that for the years 1979 through and including 1982, respondent listed her telephone number in the phone directory with the Ferndale address.

In addition to the stipulated facts, the record reveals that in 1949 respondent and her husband (now deceased) moved from the Bay Area to the Big Oak Flat property with their family. At that time respondent filed, and has continually maintained, a veteran's tax exemption upon the property. In 1950 respondent registered to vote using the Big Oak Flat property address and has voted in the same sub-precinct in every election since 1950, with the exception of one year (1977), when her residency was legally challenged.

In 1959 respondent and her husband purchased the Ferndale property and in 1960 began to live there on a part-time basis. Since 1968, however, respondent has lived almost exclusively on the Ferndale property. Respondent is the caretaker/watchperson for the Ferndale property and considers it to be her "business" address.

Further evidence established that respondent regularly visits the Big Oak Flat property, varying in frequency from at least once a day to a few times a month. Respondent continues to consider the Big Oak Flat property as her home, and uses that address on her (1) driver's license, (2) vehicle registration, (3) concealed weapon permit, and (4) voter's registration.

DISCUSSION

I. Does the Law Preclude Appellant From Arguing that Respondent Was Residing Outside of the Groveland Community Services District?

Government Code section 61200 sets forth the minimum qualifications for members of the boards of directors of community services districts. The pertinent part of Government Code section 61200 provides that the directors must "be registered electors residing within the boundaries ..." of the district. The key word in Government Code section 61200, as far as this case is concerned, is "residing." During the lower court proceedings, all parties to this action were in agreement that the word "residing" should be construed as "domiciled", and not "residence." The parties and the trial court further agreed that where a person is domiciled would be determined by applying a two-part test: (1) the physical presence in a particular place, and (2) the intention to make that place one's permanent home.

Appellant argues on appeal that the trial court erroneously "imported issues of 'domicile' and an alleged requirement that there be an intention to change domicile ...." Appellant also contends that the meaning of "residing" should be determined by Government Code section 244 (hereinafter section 244) which sets forth rules for determining the place of residence of an individual. Appellant argues that section 244 requires respondent's residency to be determined by where she is actually living and not by her domicile. This theory is different from that which was presented to the trial court.

Under ordinary circumstances, when a party changes the theory of his case on appeal the appellate court is precluded from reviewing the new theory. (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 281, p. 4269.) This doctrine, known as the "theory of trial", is a well-established rule of appellate practice. (Ernst v. Searle (1933) 218 Cal. 233, 240-241, 22 P.2d 715.) The application of this doctrine is discretionary, however, and several exceptions have developed. One of the recognized exceptions is that a party may elect to change his theory if the issue only involves a question of law. (Barton v. Owen (1977) 71 Cal.App.3d 484, 139 Cal.Rptr. 494.)

Appellant's contention on appeal is that the trial court erred as a matter of law because it failed to apply the test for residence contained in section 244. Although this contention is without merit (see the discussion below), the issue raised is one of law and therefore falls within a recognized exception to the "theory of trial" doctrine. Therefore, appellant is not precluded from raising the issue on appeal.

II. Was the Trial Court Correct in its Determination that the Word "residing" Should Also be Construed to Mean "domiciled"?

Appellant argues that the trial court erred in failing to construe "residing" according to the test set forth in section 244. Appellant's view is that because section 244 states that a person can have only one residence, and respondent's principal place of residence is her Ferndale residence, that the Ferndale residence must be where respondent is "residing." This reasoning results in the conclusion that under section 244 respondent cannot be "residing" within the district and is therefore ineligible to hold her office. Appellant has not cited any authority in support of this argument, except the hereinabove referred to section 244.

Appellant's argument falls short on this particular issue because California courts have long held that the term "residence" as used in section 244 means "domicile." (Smith v. Smith (1955) 45 Cal.2d 235, 239, 288 P.2d 497. Lowe v. Ruhlman (1945) 67 Cal.App.2d 828, 155 P.2d 671.) The reasoning behind this statutory construction was explained by the California Supreme Court in Smith v. Smith, supra, 45 Cal.2d at page 239, 288 P.2d 497:

"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 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...