Pease v. Zapf, D074405

• Decision Date: 17 August 2018
• Docket Number: D074405
• Citation: 26 Cal.App.5th 293,236 Cal.Rptr.3d 808
• Court: California Court of Appeals Court of Appeals
• Parties: Bryan PEASE, Contestant and Appellant, v. Lorie ZAPF, Defendant and Respondent.

26 Cal.App.5th 293

236 Cal.Rptr.3d 808

Bryan PEASE, Contestant and Appellant,

v.Lorie ZAPF, Defendant and Respondent.

D074405

Court of Appeal, Fourth District, Division 1, California.

Filed August 17, 2018

Singleton Law Firm, Gerald B. Singleton and Trenton G. Lamere, Solana Beach; Law Office of Bryan W. Pease and Bryan W. Pease, San Diego, for Contestant and Appellant.

The Sutton Law Firm, James R. Sutton, Bradley W. Hertz and Matthew C. Alvarez, San Francisco, for Defendant and Respondent.

HALLER, Acting P. J.

In November 1992, San Diego voters approved an amendment to the city charter that established a term limit for members of the San Diego City Council.

Bryan Pease is a city council candidate who did not qualify for the November 2018 general election. He contends Councilmember Lorie Zapf—who received the most votes in the primary election—is termed out of office and ineligible to run in the general election. He maintains he should be placed on the ballot instead. We disagree.

Here, the parties agree Councilmember Zapf represented District 6 during her first term of office and represented District 2 during her second term of office. The parties also agree that, as a result of redistricting that occurred during Councilmember Zapf's first term of office, she resided in District 2 for both terms. Based on her residency, Pease contends Councilmember Zapf has already served two consecutive terms from the same district and is termed out of office.

Because this interpretation is not supported by the language of the term limit provision and fails to take into account other relevant charter provisions, including the impact of the redistricting provision, we reject Pease's argument. The term limit provision regulates the number of terms an incumbent may serve on behalf of the electors of a given district, and is not dependent solely on residency. This holding follows from the language of the charter as a whole, while also giving due deference to the fundamental right of voters to select among eligible candidates to represent them in elected office.

Councilmember Zapf is eligible for reelection in the November 2018 general election. We affirm the trial court's judgment in her favor.

FACTUAL AND PROCEDURAL BACKGROUND

On November 2, 2010, Councilmember Zapf was elected to serve a four-year term on the San Diego City Council as the representative for District 6. At that time, District 6 encompassed Bay Ho (where Councilmember Zapf lived), Bay Park, Clairemont Mesa, Kearny Mesa, Serra Mesa, and Mission Valley. In the same year, then-Councilmember Kevin Faulconer, who lived in Point Loma, ran for and won reelection to serve on the city council as the representative for a neighboring district, District 2. Councilmembers Zapf and Faulconer were sworn into office on December 3, 2010.

Following the 2010 national decennial census, San Diego's Redistricting Commission—a panel of appointed voters with authority to approve city council district boundaries (San Diego City Charter, art. II, § 5.1)—adopted a plan to redraw San Diego's district boundaries, effective September 24, 2011.¹ As a result of redistricting, the newly-drawn District 2 included both Councilmember Faulconer's residence in Point Loma and Councilmember Zapf's residence in Bay Ho. Although the city charter provided a method to designate which district each council member would represent for the remainder of his or her term, there is no evidence the city council implemented this option. However, after redistricting, the city council's meeting agendas, minutes, and website continued to refer to Councilmember Faulconer as the representative for District 2 and Councilmember Zapf as the representative for District 6, and the council members acted in those official capacities for the remainder of their terms.

In a 2014 special election, Councilmember Faulconer was elected the mayor of San Diego and, in the 2014 general election, Councilmember Zapf was elected to city council as the representative for District 2, the district in which her Bay Ho residence was located due to the redistricting that had occurred in 2011. Councilmember Zapf was sworn into office on December 10, 2014, and her term will end in December 2018.

Councilmember Zapf and several other candidates campaigned for the soon-to-be-vacant position of District 2 representative on the city council. In the primary election held on June 5, 2018, Councilmember Zapf and Dr. Jennifer Campbell were the top two vote-getters and thus qualified for the ballot in the upcoming general election. Councilmember Zapf received 43 percent of the vote and Dr. Campbell received 21 percent of the vote.² Pease, who finished the primary race in third place with 20 percent of the vote, did not qualify for the general election.

On July 6, 2018, Pease filed a petition under Elections Code section 16101,³ in which he challenged Councilmember Zapf's eligibility for office and asked the trial court to set aside her nomination and declare him nominated for the general election.⁴ According to Pease, Councilmember Zapf's nomination contravenes the voter-approved term limit provision in the city charter and thus she is ineligible to run for another term. That provision states "no person shall serve more than two consecutive four-year terms as a Council member from any particular district." (San Diego City Charter, art. III, § 12, subd. (c).) A partial term in excess of two years is treated as a full term under the term limit provision. (Ibid. )

In the trial court, Pease initially argued that, effective upon the date of redistricting, Councilmember Zapf no longer represented District 6 and instead began to represent District 2, where she resided. In support of this argument, Pease contended that upon redistricting, a council member represents the newly drawn district in which he or she resides, not the district that elected the council member.⁵ Based on this theory, Pease maintained that Councilmember Zapf had already served two terms as the council member for District 2—one term from the effective date of redistricting until 2014 (which, as discussed ante , was treated as a full term in office) and a second term from 2014 to the present. In opposition, Councilmember Zapf emphasized that Pease's argument would lead to irrational results and require the court to find that District 6 was "unrepresented" and District 2 was "represented by two Councilmembers."

Shortly before the hearing on the petition, Pease filed a reply brief in which he modified his legal challenge. In this brief, Pease conceded for the first time that Councilmember Zapf "could, and apparently did, represent ... District 6" throughout her first term of office, even after redistricting. Nevertheless, he argued that Councilmember Zapf represented District 6 from her residence in the newly-drawn District 2 and, therefore, has already served two terms " ‘from a particular district.’ "

On July 30, 2018, the trial court issued findings of fact and conclusions of law and pronounced judgment in favor of Councilmember Zapf.⁶ The court found that after redistricting took place, Councilmember Zapf continued to represent District 6.⁷ Although the court did not specifically address Pease's new argument that Councilmember Zapf represented District 6 from District 2 after redistricting, the court also concluded that "Councilmember Zapf has not yet served two consecutive four-year terms ‘from any particular district’ " and "is eligible for re-election as District 2 Councilmember for the 2018-2022 term."

Pease appeals the judgment under section 16920.

DISCUSSION

I. The Doctrine of Laches Does Not Apply

Before we turn to the merits of this appeal, we first address Councilmember Zapf's contention that the doctrine of laches forecloses this lawsuit because Pease waited until after the election to challenge her eligibility. " ‘Laches is based on the principle that those who neglect their rights may be barred, in equity, from obtaining relief.... The elements required to support a defense of laches include unreasonable delay and either acquiescence in the matter at issue or prejudice to the defendant resulting from the delay....’ " ( Krolikowski v. San Diego City Employees' Retirement System (2018) 24 Cal.App.5th 537, 568, 234 Cal.Rptr.3d 499.) The party relying on laches has the burden of proving its application. ( Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258.) The trial court concluded that Pease's challenge was "not barred by the doctrine of laches," and we find no basis to disturb this determination.

Section 16421 permits a candidate in a primary election to contest the nomination of another candidate up to five days after the official canvass of the election. (§ 16421.) Here, the San Diego City Clerk certified the results of the canvass of votes cast in the primary election on July 5, 2018, and Pease filed this lawsuit the next day, thus satisfying section 16421.⁸ We acknowledge that a postelection challenge of this nature, particularly where a pre-election remedy is available, leaves the door open to "instability" and the regrettable possibility that the will of the voters may be nullified. ( McKinney v. Superior Court (2004) 124 Cal.App.4th 951, 960, 21 Cal.Rptr.3d 773 ( McKinney ).) Nevertheless, Pease's compliance with section 16421 undercuts Councilmember Zapf's claim of unreasonable delay.⁹ ( David Welch Co. v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 893-894, 250 Cal.Rptr. 339, disapproved on other grounds in Lee v. Hanley (2015) 61 Cal.4th 1225, 1239, 191 Cal.Rptr.3d 536, 354 P.3d 334.)

Councilmember Zapf also has not demonstrated prejudice resulting from the purported delay. Councilmember Zapf argues that she "expended a tremendous amount of time and effort in running for re-election," without providing detail to substantiate these allegations or an explanation that ties the asserted harm to Pease's purported delay. Generic and unsupported...