Robertson v. Vu CA4/1 ( 2021 )

Filed 3/23/21 Robertson v. Vu CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MICHAEL ROBERTSON, D076810
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2019-
MICHAEL VU, as Registrar of Voters,
00021239-CU-MC-NC )
etc., et al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert P. Dahlquist, Judge. Affirmed.
Michael Robertson, in pro. per., for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, Christina Snider, Deputy
Counsel for Defendants and Respondents.
In a November 2018 election, Del Mar School District (District) voters
approved Measure MM authorizing the issuance of $186 million in general
obligation bonds to improve Del Mar elementary schools. About five months
later, Michael Robertson brought an action challenging the language of the
measure’s ballot materials and asserting other related claims. Robertson
named as defendants Michael Vu (the then Registrar of Voters (Registrar))
and Thomas Montgomery (San Diego County Counsel (County Counsel)).
The court sustained defendants’ demurrer without leave to amend,
finding the claims could not be brought after the election, and, even if a
postelection challenge was permitted, Robertson’s lawsuit was filed too late.
We affirm, concluding a preelection challenge was Robertson’s exclusive
remedy.1
FACTUAL AND PROCEDURAL BACKGROUND
Background
On August 6, 2018, the District adopted a resolution (Resolution)
ordering an election to decide whether it should issue $186 million in general
obligation bonds to improve Del Mar elementary schools. The District
adopted the resolution under Proposition 39, which amended the California
Constitution to reduce required voter approval to 55 percent when the
indebtedness is to be incurred by school districts for the “construction,
reconstruction, rehabilitation, or replacement of school facilities.” (Cal.
Const., art. XIII A, § 1, subd. (b)(3); Foothill-De Anza Community College
Dist. v. Emerich (2007) 158 Cal. App. 4th 11, 16.) The 55 percent standard
applies only if certain accountability factors are satisfied. (Ibid.)
1 The appellate briefs in this case are essentially identical to the briefs
filed in a separate appeal, Suprovici v. Vu (D077221), involving a San Diego
Unified School District bond measure (Measure YY). Over appellants’
objections, defendants moved to consolidate the appeals. We denied the
motion because the appellants are different and each challenges a different
bond measure and a ruling by a different superior court judge. We have
considered each appeal separately, and reach the same conclusions.
2
The Resolution included the statement that would appear on the ballot
immediately preceding the citizen’s vote on the measure. This ballot
statement said:
“To improve Del Mar neighborhood elementary schools,
repair/upgrade/reconstruct deteriorated school facilities,
plumbing, roofs, electrical systems, renovate classrooms
supporting science, engineering, math, arts instruction;
improve safety/security and technology infrastructure; and
construct/equip a new elementary school; shall Del Mar
Union School District issue $186 million in bonds at legal
rates, raising $10.4 million annually over 32 years at
approximately 3 cents per $100 of assessed value, with
independent citizens’ oversight, mandatory audits, all
money for Del Mar K-6 schools?
“Bonds – Yes Bonds – No”
The Resolution also contained the full text of the measure, including the
required school facilities list, and the tax rate statement.
Ten days later, on August 16, the Registrar published a public notice
containing Measure MM’s proposed ballot statement, and stating the election
on the bond measure would be held on November 6, 2018. The notice stated
that arguments for or against the measure must be submitted by August 17,
and that the election materials would then be available for viewing at the
Registrar’s office. Arguments in favor were submitted, but no arguments
were submitted against the measure.
County Counsel drafted an Impartial Analysis of the measure. The
Registrar made available for public inspection the text of the measure, the
Impartial Analysis, and the argument in favor of the measure. (Elect. Code,
§ 9509, subd. (a).)2 As required by section 9509, these materials were
2 Unspecified statutory references are to the Elections Code.
3
available in the Registrar’s office for 10 days after the argument-submission
deadline.
The Registrar then mailed a voter information pamphlet to all County
voters. On Measure MM, this pamphlet contained: (1) the ballot statement;
(2) County Counsel’s Impartial Analysis; (3) the argument in favor of the
measure; (4) the full text of the measure, including each school’s specific
facilities project list; and (5) the tax rate statement.
The election was held on November 6, 2018. Measure MM passed with
a 61.14 percent favorable vote. On December 6, 2018, the Registrar declared
the results of the election.
Lawsuit
About four months later, on April 25, 2019, Robertson filed his
complaint challenging Measure MM. The complaint contained nine causes of
action.
In his first cause of action, Robertson alleged the Registrar violated
statutory requirements in its publication notice by adding a phrase, and
asserted various timing challenges pertaining to the dates of the 10-day
public examination period. (See §§ 9509, 9500, 9501, 9504.)
In his second cause of action, Robertson challenged the Impartial
Analysis, alleging it did not identify all of the bond’s impermissible purposes
(such as certain repayment types) or its restrictions (such as “non-
construction related” salaries). He also alleged the Impartial Analysis did
not state that the measure failed to meet Proposition 39 requirements and
thus the 55 percent voter threshold did not apply.
In his third and fourth causes of action, Robertson alleged Measure
MM did not meet Proposition 39 requirements for various additional reasons.
4
In his fifth through ninth causes of action, Robertson challenged
Measure MM’s ballot statement. First, Robertson alleged the ballot
statement violated statutory requirements for the content of ballots by
omitting the phrase, “ ‘Shall the measure . . . be adopted?’ ” and including
impermissible advocacy and argumentative language. (See § 13119, subds.
(a), (c).)3 Second, he alleged the ballot statement violated Education Code
sections 15122 and 15272 by (1) stating the bond spending would have
“independent citizens’ oversight” without also stating the school board would
“appoint” an oversight committee; (2) failing to disclose that “the board
will . . . conduct annual independent audits” and that “funds are spent only
on school and classroom improvements and for no other purposes”; and (3)
using the words “ ‘at legal rates’ ” instead of identifying the maximum
interest rates. Third, he alleged the ballot statement violated sections 13247
and 9051, subdivision (b), because it “exceeded the word count limit of 75
words by 2 words, thereby giving the School District a prejudicial and unfair
advantage.”
Robertson attached two exhibits to his complaint: (1) a July 30, 2018
letter written to the Registrar and the San Diego County Board of
Supervisors, stating the “school measures you are processing for the
upcoming election” do not meet Election Code or Proposition 39
requirements, and detailing the reasons for this assertion; and (2) a
postelection letter, dated November 28, 2018, objecting to “nonconforming
3 Under Section 13119, subdivision (a), a school bond measure “shall
have printed . . . the words ‘Shall the measure (stating the nature thereof) be
adopted?’ To the right or below the statement of the measure to be voted on,
the words ‘Yes’ and ‘No’ shall be printed on separate lines, with voting
targets.” The code section also requires the ballot statement to be true,
impartial, and nonargumentative. (§ 13119, subd. (c).)
5
ballot statements” in numerous approved bond measures, including Measure
MM.
Robertson requested the trial court to set aside the election approving
Measure MM, order the Registrar to reject future bond resolutions, and refer
the Registrar to the district attorney for criminal prosecution.
Demurrer
Defendants demurred to the complaint. In their amended demurrer,
they argued the lawsuit was untimely and an impermissible postelection
challenge to ballot materials.4 Defendants asked the court to take judicial
notice of various election documents, including the relevant portions of the
ballot and voter information pamphlet for the November 6, 2018 election; the
final election results; the District’s August 6, 2018 Resolution; and proof of
publication of the ballot statement and ballot-argument deadline.
Robertson countered that a demurrer is procedurally improper in an
elections contest. He also opposed the demurrer on its merits, arguing his
claims fell within exceptions to the requirement that challenges to ballot
materials must be brought before the election.
After granting defendants’ request to take judicial notice of the election
documents, the court sustained the demurrer without leave to amend. The
court rejected Robertson’s procedural argument, and, on the merits, found his
claims were untimely (§ 16401) and improper postelection challenges not
subject to any exceptions. The court also stated Robertson did not identify
“any new or additional facts that could be alleged to overcome the
deficiencies.”
4 Robertson describes two demurrers in his appellate briefs. However,
there was only one demurrer that was amended after the case was reassigned
and rescheduled to a later hearing date.
6
DISCUSSION
I. Review Standard
“ ‘In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts
sufficient to state a cause of action under any legal theory.’ ” (Robertson v.
Saadat (2020) 48 Cal. App. 5th 630, 639 (Robertson).) “We are not bound by
the trial court’s reasoning and may affirm the judgment if correct on any
theory.” (Ibid.)
“We ‘adopt[ ] a liberal construction of the pleading and draw[ ] all
reasonable inferences in favor of the asserted claims.’ ” (Robertson, supra,
48 Cal.App.5th at p. 639.) We assume the truth of all facts properly pleaded
in the complaint and attachments, but we disregard “ ‘ “contentions,
deductions, [and] conclusions of fact or law.” ’ ” (McBride v. Smith (2018) 18
Cal. App. 5th 1160, 1173.) We also consider judicially noticeable matters.
(Ibid.)
We apply an abuse of discretion standard in reviewing whether an
amendment should have been permitted. To show error, the appellant has
the burden to identify specific facts establishing the complaint can be
amended to state a viable cause of action. (Baldwin v. AAA Northern
California, Nevada & Utah Ins. Exchange (2016) 1 Cal. App. 5th 545, 559.)
II. Demurrer was Proper Procedure for Challenging Pleading
Robertson contends the court had no authority to rule on the demurrer
because his claims are governed by the election contest procedures in the
Elections Code (§ 16440 et seq.), not the Code of Civil Procedure.
7
A Court of Appeal recently rejected the identical contention. (Denny v.
Arntz (2020) 55 Cal. App. 5th 914, 924-925 (Denny).)5 The Denny court
reasoned that the “Elections Code expressly incorporates the Code of Civil
Procedure into procedures for election contests so long as they are
compatible. [¶] There is no . . . incompatibility between a demurer and [the
appellant’s] [post]election contest [challenging ballot materials]. Section
16602 authorizes a trial court to ‘dismiss the proceedings if the statement of
the cause of the contest is insufficient,’ which is no different from the
standards in a demurrer under the Code of Civil Procedure. (§ 16602; Code
Civ. Proc., § 430.10 subd. (e).)” (Id. at p. 925.) The Denny court also noted
that several prior appellate decisions had resolved election contests through
demurrers. (Ibid.; see Salazar v. City of Montebello (1987) 190 Cal. App. 3d
953, 955; Hale v. Farrell (1981) 115 Cal. App. 3d 164, 168; see also Warden v.
Brown (1960) 185 Cal. App. 2d 626, 626-629.)
We agree with Denny’s reasoning and conclusion. Anderson v. County
of Santa Barbara (1976) 56 Cal. App. 3d 780, relied upon by Robertson, is
distinguishable. Anderson found summary judgment statutory deadlines
were “incompatible” with the Elections Code, and thus held the trial court
erred in granting the summary judgment in an election contest. (Id. at
pp. 786-787.) There is no similar inconsistency between a demurrer
5 Denny involved a postelection challenge to a San Francisco municipal
bond measure, in which the Court of Appeal rejected many of the same
contentions raised here. (Denny, supra, 55 Cal. App. 4th 914.) Because Denny
was published after the parties completed their appellate briefing, we
provided the parties the opportunity to submit supplemental letter briefs
addressing the Denny court’s conclusions. We grant Robertson’s request that
we also consider the appellant’s supplemental brief filed in the Suprovici
appeal (see fn. 1, ante), but deny the additional judicial notice requests
contained in the supplemental letters.
8
proceeding and the election contest in this case. (See Denny, supra, 55
Cal.App.5th at p. 925.)
III. Postelection Challenge is Improper
Defendants demurred to the complaint on the ground Robertson’s
claims were precluded because his sole remedy was to assert the challenges
before the election. The trial court agreed with this argument. We concur
with this conclusion.
A. General Rule
It is well settled a challenge to ballot materials must be brought before
an election. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25
Cal. 4th 165, 192 (Sierra Madre); Denny, supra, 55 Cal.App.5th at p. 922;
Owens v. County of Los Angeles (2013) 220 Cal. App. 4th 107, 123 (Owens);
McKinney v. Superior Court (2004) 124 Cal. App. 4th 951, 957 (McKinney);
People ex rel. Kerr v. County of Orange (2003) 106 Cal. App. 4th 914, 932
(Kerr).) “ ‘The reasons are fundamental. Voters, not judges, mainly run our
democracy. It would threaten that core tenet if one person who did not like
the election result could hire lawyers and with ease could invalidate an
expression of popular will.’ ” (Owens, at p. 124; accord Sierra Madre, at
p. 192.)
As discussed in Part D, the statutes set forth specific procedures for
challenging ballot materials and other similar claims before an election.
Robertson acknowledges he did not avail himself of these procedures, but
argues this case falls under statutory and constitutional exceptions to the
preelection-challenge rule. He alternatively requests that we permit his
lawsuit to go forward because the issues are reoccurring and will not
otherwise be subject to review. These arguments are unavailing.
9
B. Statutory-Based Exception
Section 16100 contains a list of narrow circumstances under which a
postelection challenge may be brought. Robertson argues this case falls
within section 16100, subdivision (c), which states: “Any elector . . . may
contest any election held therein, for . . . the following cause[ ] . . . [t]hat the
defendant has given to any elector or member of a precinct board any bribe or
reward, or has offered any bribe or reward for the purpose of procuring his
election, or has committed any other offense against the elective franchise
defined in Division 18 (commencing with Section 18000).” (Italics added.)
Robertson contends his claims come within section 16100, subdivision
(c) based on sections 18002 and 18401, which are contained in Division 18 of
the Elections Code.
Section 18002 states: “Every person charged with the performance of
any duty under any law of this state relating to elections, who willfully
neglects or refuses to perform it, or who, in his or her official capacity,
knowingly and fraudulently acts in contravention or violation of any of those
laws, is . . . punishable by fine not exceeding one thousand dollars ($1,000) or
by imprisonment . . . for 16 months or two or three years, or by both that fine
and imprisonment.” Section 18401 states: “Every person who prints any
ballot not in conformity with [the Elections Code], or who circulates or gives
to another any ballot, knowing at the time that the ballot does not conform to
[the Elections Code], is guilty of a misdemeanor.”
Robertson says his allegations that the ballot materials did not strictly
conform to Elections Code requirements support that the Registrar and/or
County Counsel can be held criminally liable under sections 18002 and
18401. This argument is without merit.
10
It is undisputed that defendants were not notified of alleged
deficiencies in the ballot materials after these materials were prepared and
before the election; the public was provided the full opportunity to examine
the materials in time to bring any preelection challenge; and there was no
preelection judicial challenge brought. Under these circumstances,
defendants did not “knowing[ly]” or “willfully neglect[ ] or refuse to perform”
a statutory duty within the meaning of these criminal statutes. (§ 18002,
§ 18401, italics added.) Similarly, there are no factual allegations showing
defendants “fraudulently” acted in contravention of election laws. (§ 18002.)
To the extent Robertson is asking this court to interpret section 16100,
subdivision (c) to permit postelection challenges for any “nonconforming
ballot,” this construction is unsupported by the statutory language which
requires an “offense against the elective franchise defined in Division 18.”
(§ 16100, subd. (c), italics added.)
Moreover, courts must consider statutory language “in the context of
the entire statute and the statutory scheme of which it is a part.” (Satele v.
Superior Court (2019) 7 Cal. 5th 852, 858; Simpson Strong-Tie Co., Inc. v.
Gore (2010) 49 Cal. 4th 12, 27.) We must “reject a literal construction that is
contrary to the legislative intent . . . or that would lead to absurd results.”
(Simpson, at p. 27.)
Interpreting section 16100, subdivision (c) as creating an exception to
the preelection exclusive-remedy rule based solely on an allegation that an
election official knew or should have known of a “nonconforming ballot”
would be inconsistent with the statutory scheme and contrary to our duty to
uphold elections “ ‘ “if possible.” ’ ” (Gooch v. Hendrix (1993) 5 Cal. 4th 266,
279 (Gooch).) As the Denny court stated in response to a similar contention,
“section 16100, subdivision (c) does not provide a statutory basis ‘to attack
11
the outcome of an election based on deficiencies in the impartial analysis’ of a
ballot measure after the election. . . . Enforcing the requirements for an
impartial analysis . . . is a preelection activity.”6 (Denny, supra, 55
Cal.App.5th at p. 921.)
Robertson’s reliance on Huntington Beach City Council v. Superior
Court (2002) 94 Cal. App. 4th 1417 and McDonough v. Superior Court (2012)
204 Cal. App. 4th 1169 is misplaced. In both cases the challenges to ballot
materials and voter guidelines were made before the election, not after. (See
Huntington Beach, at p. 1426; McDonough, at pp. 1173-1174.)
C. Constitutionally Based Challenge
Robertson next argues that even if there is no statutory basis for
bringing a postelection challenge, he is permitted to do so under a California
Supreme Court decision filed 100 years ago and long before the enactment of
the statutory exceptions to the preelection challenge rule. (Rideout v. City of
Los Angeles (1921) 185 Cal. 426, 430 (Rideout).) The high court, however, has
since reaffirmed that the statutory grounds/exceptions for a postelection
contest set forth in section 16100 are generally exclusive (Sierra Madre,
supra, 25 Cal.4th at pp. 193-194), and under the “modern Election Code
provisions which postdate Rideout,” a violation of a “mandatory” Election
Code rule does not necessarily “invalidate or annul . . . the results of a
contested election” (Gooch, supra, 5 Cal.4th at p. 278, fn. 7).
We recognize that under Rideout and more recent decisions, a
postelection challenge may potentially have merit if the alleged improper
6 Based on our interpretation of section 16100, subdivision (c), we do not
reach defendants’ alternate argument that this subdivision applies only when
the candidate is the person who committed the bribe or otherwise committed
an “offense against the elective franchise . . . .”
12
election procedure violated notions of fundamental fairness and due process,
i.e., where the violation prevented the voter from “freely and fairly making
their choice at the polls.” (Horwath v. City of East Palo Alto (1989) 212
Cal. App. 3d 766, 775-776, 777-779 (Horwath); see Rideout, supra, 185 Cal. at
p. 432 [postelection challenge proper if “a considerable number of electors or
voters” were precluded “from expressing their will at the polls”]; McKinney,
supra, 124 Cal.App.4th at p. 959 [an election “might be set aside if there was
malconduct that rose to constitutional levels”].)
However, to prevail on a constitutional challenge, the plaintiff must
meet a “ ‘very high’ ” bar. (Kerr, supra, 106 Cal.App.4th at p. 934; see Owens,
supra, 220 Cal.App.4th at p. 123 [“no California appellate court, to our
knowledge, has invalidated an election on this basis”].) “A litigant cannot
simply intone the words ‘due process.’ ” (Kerr, at p. 934.) Instead, at the very
least, a successful postelection constitutional challenge requires a showing
the electorate was “profoundly misled.” (Ibid.)
Robertson’s allegations do not come close to meeting the fundamental
unfairness standard. Robertson has not alleged any facts showing the voters
were prevented from “freely and fairly making their choice at the polls”
and/or expressing their will in the election. (Horwath, supra, 212 Cal.App.3d
at p. 776.) The errors identified by Robertson (such as the number of words
in the ballot statement, and the failure to use the precise statutory language)
concern issues that would not have misled the electorate. (See Rideout,
supra, 185 Cal. at pp. 430-432 [declining to overturn an election based on
facts showing certain mandatory words were not contained on the back of the
ballot and there were deviations from the prescribed size of certain type]; see
also Gooch, supra, 5 Cal.4th at p. 278 [“ ‘ “[t]echnical errors or irregularities
arising in carrying out directory provisions which do not affect the result will
13
not [void] the election” ’ ”]; Horwath, supra, 212 Cal.App.3d at pp. 777-779
[city’s failure to comply fully with statutory requirements governing
preparation of impartial analysis did not render measure unconstitutional];
Kerr, supra, 106 Cal.App.4th at p. 934.) Robertson acknowledged in his
complaint there was no way to know with certainty whether the vote would
have been different without the alleged violations.
Robertson contends the voters could not make an informed and fair
choice because the ballot statement and the Impartial Analysis were written
in a biased manner. Our review of the materials does not support this
contention. But even if there was such language in these materials, this does
not reflect the existence of a constitutional violation permitting Robertson to
raise the issue for the first time after the election. Before the election, the
voters were provided with the complete text of Measure MM (including the
tax rate statement and the project list for every elementary school), and the
voters would have understood that the ballot statement was merely a
summary of the measure and the Impartial Analysis was just that—an
analysis—and not the complete statement of the bond measure. The
challenged ballot language would not have prevented the voters from voting
intelligently on the measure and was not “so inaccurate or misleading as to
prevent voters from making informed choices.” (Horwath, supra, 212
Cal.App.3d at p. 777; accord Owens, supra, 220 Cal.App.4th at p. 126; Kerr,
supra, 106 Cal.App.4th at pp. 918-919.)
The alleged circumstances do not rise to the level of fundamental
unfairness that would exempt a voter from the settled rule that challenges to
ballot materials and other preelection issues must be brought before the
election.
14
D. Discretionary Review
Robertson alternatively contends this court should exercise its
discretion to address his claims because “they pose issues of continuing public
interest that are likely to recur and . . . present questions capable of
repetition yet evading review.” Robertson cites no authority supporting that
a court has the discretion to consider a postelection challenge where there is
no applicable statutory or constitutional exception. But even if we did have
this authority, we would not exercise it because the issues raised here are not
ones that would evade review.
The Elections Code specifically sets forth procedures for preelection
challenges to alleged flaws in the voter information pamphlet and/or ballot.
(Denny, supra, 55 Cal.App.5th at p. 922.) These procedures provide for a 10-
day examination period for members of the public to review the measure, the
impartial analysis, and the arguments for and against the measure before
they are printed in the ballot materials. (§ 9509, subd. (a).) During this 10-
day period, “any voter of the jurisdiction in which the election is being
held . . . may seek a writ of mandate or an injunction requiring any or all of
the materials to be amended or deleted.” (§ 9509, subd. (b)(1).) Section
13314, subdivision (a)(1) also provides for a preelection judicial challenge to
ballot materials: “An elector may seek a writ of mandate alleging that an
error or omission has occurred, or is about to occur, in the placing of a name
on, or in the printing of, a ballot, county voter informant guide, state voter
information guide, or other official matter, or that any neglect of duty has
occurred, or is about to occur.”
Robertson had the opportunity to invoke these preelection procedures,
but he did not do so. He attached a letter to his complaint that he and others
sent to election officials before the Resolution was adopted, detailing
15
statutory requirements for bond measures and admonishing the officials to
“FOLLOW THE LAW,” pertaining to school bond measures. He thus was
admittedly aware of the District’s intention to consider a bond resolution the
next month. He does not identify any reason that he could not have brought
a writ of mandate petition under statutory procedures before the election.7
On this record, there is no ground to find the issues would “evade review” or
to decline to apply the statutes requiring a preelection challenge for claims
such as the ones before us.
In his reply brief, Robertson suggests we should reach the merits of his
contentions because election officials in this state, and defendants in
particular, have a pattern of preparing biased and misleading impartial
analyses and ballot statements. Even assuming this is true, Robertson does
not explain why he could not assert his claims before the election in which
the ballot materials were alleged to be improper.
Robertson also discusses various Proposition 39-based bond measures
on 2020 ballots in other counties. Because these assertions concern facts
occurring after the judgment and involve different counties, this discussion is
not properly before us. We decline Robertson’s request in his appellate brief
that we take judicial notice of ballot materials for various Proposition 39-
based school bond measures in different counties for the March 3, 2020
election. Robertson did not follow required procedures for requesting judicial
7 At one point in his brief, Robertson suggests the Registrar’s August 16
publication of the argument deadlines violated statutory standards.
However, he does not cite to any legal authority supporting this argument,
nor does he assert any ground showing he could not have raised this issue in
a preelection challenge. We likewise find unhelpful Robertson’s comparison
of the Registrar’s 2018 deadlines for submitting ballot arguments with the
deadlines for 2020 measures.
16
notice because he did not file a separate motion or attach copies of the
requested materials. (See Cal. Rule of Court, rule 8.252.) Additionally, those
2020 ballot materials for other counties are irrelevant to the issues before us
and do not show the court in this case erred in sustaining the demurrer.
IV. Remaining Arguments
Robertson devotes most of his appellate briefs to raising substantive
challenges to the ballot statement and Impartial Analysis and related issues.
Because we conclude his exclusive remedy was to assert these arguments
before the election, we do not reach these arguments. We likewise do not
address defendants’ alternative arguments in support of their demurrer, such
as the statute of limitations.
Three of Robertson’s causes of action do not relate directly to the
language of the ballot materials: (1) the first cause of action alleging errors
with respect to the timing of the 10-day inspection period, and (2) the third
and fourth causes of action pertaining to claimed inconsistencies between
Measure MM and Proposition 39.
As to the first cause of action, Robertson does not identify any ground
showing he could not have raised these timing issues before the election.
Thus, these claims are similarly barred by the exclusive preelection challenge
rule. Additionally, Robertson does not separately discuss these issues or
provide legal authority supporting these claims, and thus the contentions are
forfeited. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal. App. 4th
939, 956 (Cahill).)
As to the third and fourth causes of action, Robertson does not
separately explain the legal basis supporting these allegations, nor does he
identify any grounds upon which these defendants would have any liability or
authority over substantive claims challenging the bond measure. Thus, any
17
such contentions are forfeited and without merit. (See Cahill, supra, 194
Cal.App.4th at p. 956.)
Robertson does not contend the court erred by refusing to permit leave
to amend, and has not met his burden to show a basis for error in this regard.
Thus, any such claim is also forfeited and without merit.
DISPOSITION
Judgment affirmed. Appellant to bear respondents’ costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
18