Gerawan Farming v. Lockyer

Filed 9/29/06 Gerawan Farming v. Lockyer CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Gerawan Farming, Inc. (Gerawan) appeals from denial of its petition for a writ of mandate seeking to overturn an opinion of the Attorney General denying an application for leave to sue in quo warranto. Gerawan sought to oust real party in interest Daniel Zingale (Zingale) from his position as a member of the Agricultural Labor Relations Board (ALRB) because he accepted outside employment as a political consultant in violation of Labor Code section 1150. Because Zingale has resigned his position as a member of the ALRB, we dismiss this appeal as moot.

Gerawan applied to the Attorney General for leave to sue in quo warranto in accordance with the provisions of Code of Civil Procedure section 803. That section provides in part: “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.” An action brought under section 803 is known as a quo warranto action and is the proper remedy to test title to public office (see generally, 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, §§ 7-8, pp. 787-790), including that of an appointed member to a state board (see People ex rel. Labachotte v. Morris (1940) 41 Cal.App.2d 430 [quo warranto action challenging right to office of member of the State Board of Chiropractic Examiners].)

Gerawan asserted that Zingale was not entitled to hold the position of a member of the ALRB because Zingale had violated Labor Code section 1150. From January 1, 2004 through September 30, 2004, Zingale had been paid $50,000 for services he rendered to the Proposition 67 opposition campaign. Labor Code section 1150 provides: “Each member of the board and the general counsel of the board shall be eligible for reappointment, and shall not engage in any other business, vocation, or employment.” Gerawan contended Zingale engaged in other employment as a paid political consultant.

In an opinion, the Attorney General denied Gerawan’s application. The Attorney General found Zingale appeared to have violated Labor Code section 1150, but that such violation did not result in vacating or forfeiture of office by operation of law.

Gerawan then petitioned the superior court for a writ of mandate, seeking to compel the Attorney General to set aside its opinion and issue a new opinion granting the application for leave to sue.

The superior court denied the petition, finding the Attorney General’s analysis careful and persuasive and therefore not clearly wrong or indefensible, the standard for overruling the Attorney General’s discretion in deciding whether to grant or deny an application for leave to sue. (Lamb v. Webb (1907) 151 Cal. 451, 454.)

Gerawan appealed. Both the Attorney General and Zingale requested this court take judicial notice, pursuant to Evidence Code sections 452 and 459, of a press release from the Governor’s Office, announcing that First Lady Maria Schriver had selected Zingale as her chief of staff and that he would resign his position with the ALRB.

This court deferred decision on the requests for judicial notice, but directed Gerawan to show cause in writing why the appeal should not be dismissed as moot.

Gerawan did not oppose the request for judicial notice and concedes that Zingale has resigned his position with the ALRB. Accordingly, we grant the requests for judicial notice (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3), and take judicial notice of the fact that Zingale no longer holds a position with the ALRB.

Gerawan contends the matter is not moot because the proper interpretation of Labor Code section 1150 remains a matter of continuing significance to the public. Other members of the ALRB will attempt to avoid the prohibition on outside employment. Gerawan contends that although forfeiture of office is no longer an available remedy, alternative remedies, such as disgorgement of compensation and benefits, remain.

The resignation of Zingale makes this appeal moot. (People v. Craig (1937) 9 Cal.2d 615.) Because Zingale has resigned from the ALRB, it can no longer be said he “usurps, intrudes into, or unlawfully holds or exercises” the position, and Code of Civil Procedure section 803 is not the proper procedure to interpret Labor Code section 1150. “[T]he proceeding known as quo warranto is to be exercised only to right an existing wrong and not to try moot questions.” (People v. City of Whittier (1933) 133 Cal.App. 316, 324.) The voluntary surrender of the office challenged abates the proceeding; “it will not be continued merely to try the abstract title to the office.” (People v. Muehe (1931) 114 Cal.App. 739, 740.) In Craig, an action in quo warranto was commenced to oust an appellate court justice who had been convicted of obstructing justice. When the matter came for hearing before the California Supreme Court, counsel stated that the justice had submitted his letter of resignation to the governor. The court found the question had

been settled and disposed of by the resignation; the matter was moot and the appeal dismissed. (People v. Craig, supra, at p. 616.)

DISPOSITION

The appeal is dismissed as moot.

MORRISON , J.

We concur:

DAVIS , Acting P.J.

BUTZ , J.

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