Can the California AG grant leave to sue in quo warranto to oust two trustees of a small storm-water district, one allegedly appointed by the wrong body and one allegedly not a freeholder?

Plain-English summary

Virgil Cotter applied to the AG for leave to file a quo warranto action under Code of Civil Procedure section 803 to oust two trustees of the Deer Creek Storm Water District (a small special district mostly in Tulare County). One trustee (Sandra Meraz) had been appointed to fill a vacancy by the two remaining trustees in October 2016; Cotter argued the Tulare County Board of Supervisors should have made the appointment. The other trustee (Kayode Kadara) was appointed by the Board of Supervisors, but Cotter argued he was not a "freeholder of land within the district" because the county had not yet finalized a lot split splitting his portion of his sister-in-law's parcel into a separate legal lot.

Quo warranto framework. A private party can sue in quo warranto under Code Civ. Proc. § 803 only with the AG's leave. The AG does not resolve the merits but asks two questions: (1) is there a substantial issue of law or fact warranting judicial resolution, and (2) would it serve the public interest to allow the suit? Rando v. Harris (2014) 228 Cal.App.4th 868. The position of board trustee of a storm water district is a "public office" subject to quo warranto. Moore v. Panish (1982) 32 Cal.3d 535.

Meraz: leave granted. Two statutes potentially apply. Government Code section 1780 is the general statute on special-district vacancies; it directs the remaining members to fill the vacancy, "[n]otwithstanding any other provision of law." Water Code Appendix section 13-6 is the specific statute for storm water districts; it directs the county board of supervisors to fill the vacancy (with the trustees submitting a list of suggested appointees). The standard canons cut in different directions here: the specific statute usually prevails over the general; the later enactment usually prevails over the earlier; "notwithstanding any other law" is a strong indicator of override. The wrinkle: the Legislature substantively amended § 13-6 in 1985, well after § 1780's 1973 enactment. In drafting that 1985 amendment, the Legislature considered conforming § 13-6 to § 1780 and rejected that option, choosing instead to refine the procedure for board-of-supervisors appointments. So the legislative history shows a considered decision to keep § 13-6 distinct. The AG concluded there is a substantial question of law and that judicial resolution would serve the public interest by clarifying which entity should fill vacancies on storm water district boards.

Kadara: leave denied. Kadara entered a lease-to-own contract with his sister-in-law in 2010 for a 0.55-acre portion of her parcel inside the district, moved his family onto the land in a mobile home, completed all purchase payments by April 2013, applied for a lot split, contested an onerous condition imposed by the Tulare County Site Plan Review Committee, won the appeal on the condition in August 2016, and is awaiting final approval of the lot split from the county assessor and auditor-controller. The Tulare County Board of Supervisors appointed Kadara as a District trustee in April 2014. Cotter argued that without a recorded deed and a separately recognized lot, Kadara is not yet a "freeholder" of land within the District.

The AG agreed that Kadara's title is not yet "good and valid beyond all reasonable doubt" in the formal sense, but concluded the public interest does not favor a quo warranto action because (1) final approval of the lot split is likely imminent, so Kadara's claim is likely to become moot, and (2) the freeholder requirement exists to ensure a trustee has a personal stake in the district's storm-water-protection work; Kadara, who paid the full purchase price, has lived on the land for seven years, and pursued the lot split diligently, has substantially the same interest as a formal freeholder.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Background and statutory framework

Quo warranto under California law. Code Civ. Proc. § 803 lets the AG bring an action, on his or her own initiative or on complaint of a private party, "against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . within this state." When a private party wants to file, the AG must first grant leave. The AG asks whether the case presents a substantial issue and whether the public interest favors suit. Rando, 228 Cal.App.4th at 879.

The Deer Creek Storm Water District. Organized under the Storm Water District Act of 1909 (Wat. Code App. ch. 13). Located mostly in Tulare County. Three board trustees serve four-year terms; trustees must be freeholders of land within the District.

The Meraz analysis: § 1780 vs. § 13-6.

• Gov. Code § 1780 (special-district vacancy filling): "Notwithstanding any other provision of law," remaining members fill the vacancy by appointment or call an election. 60-day deadline.
• Wat. Code App. § 13-6 (storm water districts): The board of trustees submits a list of suggested appointees; the board of supervisors fills the vacancy. If the supervisors don't choose from the list, they must explain why.

The Legislature amended § 13-6 in 1985 (after § 1780's 1973 enactment). An earlier version of the 1985 amendment would have conformed § 13-6 to § 1780 ("vacancy shall be filled pursuant to section 1780 of the Government Code"). The final version deleted that language and instead refined the supervisors' appointment procedure. This shows a deliberate choice to keep storm-water-district vacancies under board-of-supervisors authority. Later § 1780 amendments (1986, 1987, 1994, 1999, 2007) did not signal an intent to override § 13-6.

Canons applied.

• Specific over general. Code Civ. Proc. § 1859.
• Later enactment over earlier on the same subject. Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310.
• "Notwithstanding any other law" overrides contrary law. Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5, 13.
• Implied repeal is disfavored. Garcia v. McCutchen (1997) 16 Cal.4th 469, 477; Banks v. Yolo County (1894) 104 Cal. 258, 259 (a specific statute is never repealed by general legislation absent unequivocal manifestation of intent).

Precedent from prior AG opinion. 99 Ops.Cal.Atty.Gen. 82 (2016) applied this framework to independent library districts and concluded that Ed. Code § 19426 (later, specific) controlled over Gov. Code § 1780 (earlier, general). Here, § 1780 was earlier than the § 13-6 amendment.

The Kadara analysis: what's a "freeholder"?

• "Freehold" is an estate of indeterminate duration carrying title to land. Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155.
• "Title" is "complete ownership, in the sense of all the rights, privileges, powers and immunities an owner may have with respect to land." Hocking v. Title Ins. & Trust Co. (1951) 37 Cal.2d 644, 648.
• "Perfect title" is title "good and valid beyond all reasonable doubt," "free from litigation, palpable defects, and grave doubts," with both legal and equitable titles, "fairly deducible of record."

Kadara's title status. Kadara has paid the full purchase price. He has pursued the lot split diligently. The Tulare County Site Plan Review Committee has approved the split. Final approval awaits the county assessor and auditor-controller. The deed is not yet recorded. So Kadara's title is not yet "perfect" in the formal sense.

Why the public interest disfavors suit. The AG considered (1) likelihood of mootness (the lot split is likely to be finalized soon); (2) the underlying purpose of the freeholder requirement (to ensure trustees share landowners' interests in protecting district lands from storm water damage); and (3) Kadara's substantial actual interest in the property (full purchase price paid, seven years of residence, family on the land, ongoing pursuit of formal recognition). The AG also noted prior opinions that deny quo warranto where the claim is likely to become moot or where no public purpose would be served.

Common questions

Q: When does the California AG grant leave to sue in quo warranto?
A: When the case presents a substantial issue of law or fact warranting judicial resolution and when the public interest favors a court resolving the question. Rando v. Harris, 228 Cal.App.4th 868.

Q: Who fills vacancies on a Tennessee storm water district board?
A: This is a California opinion, not Tennessee. In California, the AG concluded there is a substantial unresolved question whether Water Code Appendix section 13-6 (which directs the county board of supervisors) or Government Code section 1780 (which directs the remaining trustees) controls. The 1985 amendment to § 13-6 suggests the Legislature meant § 13-6 to control, but the AG granted leave for a court to decide.

Q: I'm pursuing a lot split for a property I plan to use for a board seat with a freeholder requirement. Am I safe to take office before final recordation?
A: This opinion does not declare Kadara was properly a freeholder. It declines to allow a quo warranto on him because his title was likely to be perfected soon. To avoid challenges in a similar situation, finalize the lot split and record the deed before taking the office.

Q: What is the freeholder requirement designed to do?
A: Ensure that trustees have a personal financial stake in the district's work, because storm water districts (like other landowner-funded districts) impose costs on owners. Choudhry v. Free (1976) 17 Cal.3d 660; Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973). The AG read this purpose to be satisfied even before formal title is perfected, when the person has paid in full and has long occupied the land.

Q: Why didn't the AG just decide the merits of who should fill the vacancy?
A: In quo warranto, the AG's role is gatekeeper. The merits go to the Superior Court. The AG decides only whether the issue is substantial and whether suit would serve the public interest.

Citations and references

Statutes:

• Cal. Code Civ. Proc. §§ 803, 1859
• Cal. Gov. Code §§ 1780, 1781, 56036
• Cal. Civ. Code § 765
• Cal. Wat. Code App. ch. 13, §§ 13-1, 13-5, 13-6
• Cal. Ed. Code § 19426

Cases (key):

• Rando v. Harris (2014) 228 Cal.App.4th 868
• Citizens Utilities Co. v. Super. Ct. (1976) 56 Cal.App.3d 399
• Moore v. Panish (1982) 32 Cal.3d 535
• People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636
• Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379
• Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5
• Garcia v. McCutchen (1997) 16 Cal.4th 469
• Banks v. Yolo County (1894) 104 Cal. 258
• Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155
• Hocking v. Title Ins. & Trust Co. (1951) 37 Cal.2d 644
• Choudhry v. Free (1976) 17 Cal.3d 660
• Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973)

Prior AG opinions:

• 99 Ops.Cal.Atty.Gen. 82 (2016)
• 98 Ops.Cal.Atty.Gen. 85, 94 (2015)
• 97 Ops.Cal.Atty.Gen. 12, 50 (2014)
• 96 Ops.Cal.Atty.Gen. 36, 48 (2013)
• 95 Ops.Cal.Atty.Gen. 50, 77 (2012)
• 84 Ops.Cal.Atty.Gen. 135 (2001)
• 83 Ops.Cal.Atty.Gen. 53, 181 (2000)
• 82 Ops.Cal.Atty.Gen. 6, 219 (1999)
• 81 Ops.Cal.Atty.Gen. 240 (1998)
• 73 Ops.Cal.Atty.Gen. 197, 268 (1990)
• 72 Ops.Cal.Atty.Gen. 15 (1989)
• 55 Ops.Cal.Atty.Gen. 36 (1972)
• 37 Ops.Cal.Atty.Gen. 146 (1961)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-301_1.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL RECORDS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA, Attorney General

OPINION of XAVIER BECERRA, Attorney General
LAWRENCE M. DANIELS, Deputy Attorney General

No. 17-301
December 12, 2017

Proposed relator VIRGIL COTTER has requested leave to sue proposed defendants SANDRA MERAZ and KAYODE KADARA in quo warranto on the following questions:

1. Is Sandra Meraz unlawfully serving as a board trustee of the Deer Creek Storm Water District because she was appointed to fill a vacancy by the remaining members of the district board, rather than by the Tulare County Board of Supervisors?

2. Is Kayode Kadara unlawfully serving as a board trustee of the Deer Creek Storm Water District because he is not a "freeholder" of land within the district?

CONCLUSIONS

1. Leave to sue in quo warranto is GRANTED to determine whether Sandra Meraz is unlawfully serving as a board trustee of the Deer Creek Storm Water District because she was appointed to fill a vacancy by the remaining members of the district board, rather than by the Tulare County Board of Supervisors.

2. Leave to sue in quo warranto is DENIED to determine whether Kayode Kadara is unlawfully serving as a board trustee of the Deer Creek Storm Water District because he is not a "freeholder" of land within the district.

ANALYSIS

The Deer Creek Storm Water District is organized under the Storm Water District Act of 1909. A storm water district prevents and controls soil erosion, and protects the lands in the district from storm-water damage, by constructing dams, ditches, and dikes, by planting vegetation, and by keeping water in the soil. The District, which is located mostly in Tulare County, is governed by three board trustees, who are elected to four-year terms.

Proposed relator Virgil Cotter requests permission to sue proposed defendants Sandra Meraz and Kayode Kadara to oust them as trustees of the District. Relator claims that the trustees' appointment of Meraz to fill a vacancy on the District board was unlawful because only the Tulare County Board of Supervisors is authorized to make such an appointment. As to Kadara, Relator claims that he is not a "freeholder" of land within the District, and thus is ineligible to serve as trustee.

Quo Warranto

Code of Civil Procedure section 803 provides: "An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . within this state."

This process, known familiarly as quo warranto, is intended to protect the public interest by ensuring that the holder of a public office meets all necessary qualifications. The position of board trustee of a storm water district is a "public office" because it is: (1) a governmental position; (2) created or authorized by law; (3) with a continuing and permanent tenure; and (4) in which the incumbent performs a public function and exercises some sovereign powers of government.

When a private party wishes to file a quo warranto action in the Superior Court, the party must first obtain the Attorney General's permission. In deciding whether to permit a quo warranto action to be filed, the Attorney General does not resolve the merits of the controversy, but rather determines whether the matter presents a substantial issue of fact or law warranting judicial resolution, and whether granting permission to file suit would serve the public interest.

Meraz

We are informed that on October 15, 2016, a trustee of the Deer Creek Storm Water District resigned, leaving a vacancy. On or about October 31, 2016, the two remaining trustees appointed Meraz to fill the vacancy. We conclude that there is a substantial question of law as to whether the remaining trustees were authorized to fill the vacancy by appointment.

The parties direct our attention to two statutes bearing on this issue: Government Code section 1780, and Water Code Appendix section 13-6.

On one hand, Government Code section 1780 provides that, in a special district, the remaining members generally may make an appointment to fill any vacancy on their board. The statute states, "Notwithstanding any other provision of law, a vacancy in any elective office on the governing board of a special district, other than those specified in Section 1781, shall be filled pursuant to this section."

On the other hand, Water Code Appendix section 13-6, which specifically governs storm water districts, provides that the board of supervisors — not the remaining trustees — shall make any appointment to fill a vacancy on a district board. Section 13-6 states, "Should a vacancy occur or be found to exist in the office of trustee, the board of trustees shall submit to the board of supervisors a list of suggested appointees, and the board of supervisors shall fill the vacancy by appointment. If the board of supervisors does not make the appointment from the list submitted by the board of trustees, it shall make a finding stating the reasons for its selection."

To make sense of these apparently contradictory statutes, we apply well-established tenets of statutory construction. The key difference between our 2016 opinion and the present situation is that, here, the Legislature enacted the specific statute before the general statute.

Relator, citing the general principle that a specific statute prevails over a general statute, argues that Water Code Appendix section 13-6 should control over Government Code section 1780. Meraz, however, citing the general principle that a later-enacted statute prevails over an earlier one, and noting the supersession provision ("Notwithstanding any other statute . . ."), argues that Government Code section 1780 should control over Water Code Appendix section 13-6. Relator replies that section 13-6 should nonetheless prevail because it was amended in 1985, after section 1780 was enacted. Significantly, during the amendment process, the Legislature considered and rejected the option of conforming section 13-6 to section 1780, opting instead to refine the procedure for appointments by the board of supervisors.

It is true, as Meraz points out, that Government Code section 1780 has been amended multiple times since the 1985 amendment to Water Code Appendix section 13-6. But we are aware of nothing in the history and amendments to section 1780 indicating that the Legislature intended to reverse its 1985 ratification of section 13-6. In light of the Legislature's considered decision not to apply section 1780 to storm water districts, we believe it would take more than some general changes to the section 1780 procedure to show that the Legislature meant to repeal section 13-6. In our view, the legislative history demonstrates that Water Code Appendix section 13-6 is meant to override Government Code section 1780 as to storm water districts, and that Meraz's appointment may therefore have been invalid. In any event, we conclude that the matter raises a substantial issue of law that warrants judicial resolution.

Moreover, we conclude that it would be in the public interest to grant Relator's application. In the absence of any countervailing circumstances (such as pending litigation or shortness of time remaining on a term in office), we consider the need for judicial resolution to be an adequate "public purpose" for granting leave to sue here. Judicial resolution of this issue may help clarify which entity should fill a vacancy on storm water district board in the future.

Accordingly, Relator's application for leave to sue in quo warranto as to Meraz is GRANTED.

Kadara

As it pertains to Kadara, Relator's application presents different considerations and requires a separate analysis. Relator argues that Kadara is not properly serving on the District board because he is not a "freeholder" of land within the District. For the following reasons, we deny the application as to Kadara.

To serve on the Deer Creek Storm Water board, a person must be "a freeholder of the district." A "freehold" is an estate of "indeterminate duration, and carries with it title to land." The California Supreme Court has described "title" as the "complete ownership, in the sense of all the rights, privileges, powers and immunities an owner may have with respect to land." To be "perfect," title needs to be "good and valid beyond all reasonable doubt," and to be good, title "should be free from litigation, palpable defects, and grave doubts, should consist of both legal and equitable titles, and should be fairly deducible of record."

The parties have supplied the following information relating to whether Kadara is a freeholder of land within the District:

• On April 1, 2010, Kadara entered into a five-year lease, with a purchase option, for a specified 0.55-acre area of land located within the District, and within a larger parcel of property owned by his sister-in-law. The agreement permitted Kadara to accelerate his payments and to pay off the purchase price in full at any time.
• Shortly after April 1, 2010, Kadara and his family moved a mobile home onto his leased portion of the property and settled there. Also, in anticipation of completing the purchase, Kadara filed an application with the county for a formal lot split.
• On November 18, 2010, the Site Plan Review Committee of the Tulare County Resource Management Agency issued a resolution conditionally approving Kadara's application. The committee imposed what Kadara considered to be "an onerous condition" regarding improvement of the new lot. He appealed to have the condition removed.
• On April 1, 2013, Kadara availed himself of the accelerated-payment option and paid off the purchase price in full.
• On April 22, 2014, the Tulare County Board of Supervisors appointed Defendant Kadara as a trustee of the District. His seat will be up for election in November 2018.
• On August 2, 2016, the Tulare County Resource Management Agency removed the improvement condition and forwarded the committee's resolution to the county offices of assessor and auditor-controller for final approval of the lot split and creation of the separate parcel.

Based on these undisputed allegations, Relator claims that Kadara is disqualified from the office of trustee. Relator contends that Kadara is not presently a "freeholder" of land, as required by the statute, because the county has not yet formally recognized the land he paid for as a separate lot. Kadara asserts that, when he made the final payment on the property, he became the owner of the land, and thus became a freeholder.

As indicated by the facts recounted above, Kadara has fulfilled his financial obligations to the seller in the lease-to-own agreement by making all payments required to purchase a portion of the seller's land, and it appears that Kadara has taken the necessary administrative steps to establish his title to it. But although the county's Site Plan Review Committee has recommended approval of Kadara's lot split and purchase, and although there do not appear to be any further impediments to such an approval, the matter is still pending with the county assessor and auditor-controller. As a result, it remains debatable whether Kadara's title to the lot is "good and valid beyond all reasonable doubt," giving rise to Relator's contention that Kadara is not currently eligible to serve as a trustee of the District.

We have broad discretion in ruling on quo warranto applications, however, and the presence of a debatable issue does not necessarily establish that the issue is a substantial one, much less that the dispute warrants judicial resolution in a quo warranto action. And even where an issue is deemed to be substantial in our analytic framework, our exercise of discretion whether to grant leave to sue is guided by considerations of the overall public interest.

Kadara has supplied unrefuted evidence that on August 2, 2016, the Tulare County Resource Management Agency forwarded a resolution to approve the lot split and creation of his separate parcel to the assessor and auditor's offices, where the resolution awaits final approval. Although it is conceivable that final approval could be denied, it seems unlikely: Kadara has apparently complied with or successfully contested all of the agency's conditions. Once there is a legally recognized lot, and the deed is recorded, Kadara will hold legal title, and will indisputably have freeholder status. Under these circumstances, we think it likely that Relator's claim will soon become moot.

Moreover, we believe that the public interest would not be served by allowing a quo warranto to proceed against Kadara. The purpose of the District is to prevent storm water from damaging the real property in the District. As such, the District "disproportionately affect[s] landowners because the economic burden of its operations is confined to landowners . . . ." The freeholder requirement is intended to ensure that a trustee shares the same interests as district landowners and acts as their agent with a personal stake in the board's decisions. Although Kadara's freehold title may not be perfected until the lot split receives final approval, he has consummated the contract for sale with the seller, made all payments for the purchase, and diligently pursued the lot split. Meanwhile, for more than seven years, he and his family have resided on the land. He has much the same interest in protecting the lands in the District from storm water damage as any freeholder of property in the District. We conclude that it would not be in the overall public interest to allow a quo warranto lawsuit to proceed against Defendant Kadara.

Accordingly, Relator's application for leave to sue in quo warranto as to Kadara is DENIED.