Pini v. Fenley
| Decision Date | 06 April 2021 |
| Docket Number | C088892 |
| Parties | FIRENZA PINI, Plaintiff and Appellant, v. JOHN FENLEY, Defendant and Respondent; THE COUNTY OF TRINITY, Real Party in Interest and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Firenza Pini, an elector in Trinity County, filed an election contest action contending that Diane Richards, who lost the vote in 2016 for District 5 Supervisor of Trinity County to defendant John Fenley by 352 to 380 votes, a margin of 28 votes, would have won but for mistakes, errors or misconduct in processing and counting ballots. After five days of trial, the trial judge granted a motion for judgment under Code of Civil Procedure section 631.8 brought by Fenley and Trinity County.
On appeal, Pini contends the trial court: (1) erred in granting the motion for judgment; (2) abused its discretion in declining to reopen the case to admit additional testimony; (3) abused its discretion in allowing Trinity County to intervene in the case without filing a motion to intervene; (4) denied Pini her constitutional right to a fair trial; and (5) violated Pini's state and federal constitutional rights.
We will affirm the judgment.
Pini's election contest was the subject of a prior appeal in which we summarized the matter as follows:
The verified statement of election contest did not state a remedy sought. Instead, it concluded: 'For the foregoing reasons, Contestant Firenza Pini alleges that mistake, error or misconduct has occurred in the counting of the ballots in the election which were so incorrectly counted as to change the result of the election, and, if counted, the number of legal votes cast for Contestant will exceed the number of legal votes for Defendant [Fenley] in said election.' " (Pini v. Fenley (2017) 9 Cal.App.5th 67, 70 (Pini).)
The trial court summarily dismissed the action on its own motion, determining that Pini filed the election contest after the five-day deadline to challenge a primary election. (Elec. Code, § 16421.)1 We held that a nonpartisan primary election is transmuted into a general election where a candidate receives a majority of the votes and is elected to office. (Pini, supra, 9 Cal.App.5th at p. 72.) Therefore, the applicable deadline was 30 days under section 16401, subdivision (d). (Pini, supra, at p. 73.) We reversed and remanded for further proceedings. (Id. at p. 77.)
Beginning on November 19, 2018, Pini's election contest was tried to the court.
Pini called Richards as the first witness. On May 18, 2016, Richards participated in a voter registration drive at the fairgrounds in Hayfork where members of Hmong and Asian communities in District 5 were invited. There was a large turnout, hundreds came. The drive was to reach people in outlying areas, particularly people with language challenges, living in places where there were no telephones, addresses or even roads. Barbara and William Chadwick and Mike Wear delivered registration affidavits from the drive to Shyann Giddings at the county election office.
The only polling place in District 5 is in Hayfork. When Richards voted in the June 2016 primary election she requested but was not given a "privacy cover" for herballot. Precinct board members at the polling place in Hayfork could see how Richards voted.
As a candidate, Richards could only observe voting from a table 100 feet from the polling place and was not allowed in the polling place except to vote. Richards called Shanna White in the elections office to complain that some voters at the Hayfork polling place were being told they had to go the elections office in Weaverville to vote. Richards asked White if the polling place there would be open until 8:00 p.m. Richards was told it would close at 5:00 p.m. When Richards asked if ballots from people who want to vote between 5:00 and 8:00 p.m. would be accepted at Hayfork, White said she didn't know and told Richards not to call her anymore. Richards did not know if people told to go to Weaverville went to Weaverville.
Early on the day of the election Richards went to inspect the "zero count" on the voting machine and look at the seals, but she was told it had been done and the machine locked up the night before.2 The zero test report (or "zero tape") for the machine at the Hayfork polling place for the presidential primary on June 7, 2016, indicated that the tape was printed on June 6, 2016, and the certification signed by one person. The zero tape showed zero votes counted for each candidate for elected office in precincts 311 and 501.
After the election, Richards saw copies of provisional ballots photocopied on 8 1/2 by 11 inch pieces of paper. The ballots bore the heading "Provisional Ballot."
Richards testified that a statement of votes cast in District 5 in the June 2016 election showed the number of registered voters reported to the state in certified election results was 1,488 but 1,357 voters were listed in the voter roll. Richards found only 60 ofthe 96 people registered at the Hayfork community event in the voter roll. Richards found 60 people by looking at the date the affidavit was signed as set forth in the voter rolls. Richards did not keep a list of the names of the 96 individuals whose affidavits were collected at the Hayfork event. Richards did not know why, if 36 individuals submitted affidavits, those affidavits were rejected.
Michael Wear testified that, during the June 2016 election, he was at the Hayfork polling place from 6:00 a.m. to 9:30 a.m. and from 6:00 p.m. to closing at 8:00 p.m. When voting, Wear asked where the voting booth was for handicapped and was told there wasn't one. He sat at a regular table with other people who were voting. There were voting booths at the polling place but none for the handicapped.
As an observer, Wear was seated 15 to 20 feet from where people were voting. Wear saw Hmong people at the opening of the polling place but did not see any of them vote. Wear heard White telling Hmong people they could not vote in Hayfork but had to drive to the central office about an hour away.
After the poll closed, Wear saw ballot boxes opened and the ballots put into bags, with the spoiled and unused ballots in separate bags. Wear told Michael Wyckoff, Sr., who was transporting the ballot containers and election materials to the central office, that Wear would follow him. Wyckoff said he was going to make stops along the way and stopped first at his home.
Wear observed the counting and processing of provisional ballots. He was 25 feet away so he could not see the signatures or addresses. White told Wear that 119 ballots, both provisional and vote-by-mail ballots, were not counted because they were not good. Wear saw provisional ballots being opened and information transferred to another piece of paper.
Pini testified that she visited the Post Mountain area of District 5 when she was running for office and also for voter registration.3 The population there is 60 percent Hmong and the rest Caucasian. The area has no post office, gas station, supermarket, or commercial activities on the street that runs through the area. There are no public facilities besides the fire department. There are no street lights or paved roads or street addresses, only street signs.
On June 7, 2016, Pini voted at the Hayfork polling place. She was not offered a "privacy sleeve" for her ballot. When she went to pick up a privacy sleeve, a poll worker attempt to grab it back and held on for 10 seconds before letting Pini have it. Pini did not see other voters obtain a privacy sleeve. There were six voting booths set up. Not all voters used the booths. Those who were voting provisionally were sent to a table that had no privacy setups. Provisional voters were handed a piece of paper, not a ballot. There were four seats at the table. While Pini was at the polling place from 9:30 to 9:45 a.m. to mid-afternoon, there was a constant stream of people at the table.
Pini did not see any...
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