Filed 7/15/15

                          CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO


MARTHA BRIDGES et al.,

        Plaintiffs and Appellants,                   E059890

v.                                                   (Super.Ct.No. RIC1216373)

CITY OF WILDOMAR,                                    OPINION

        Defendant and Respondent.



        APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed.

        David X. Turajski for Plaintiffs and Appellants.

        Burke, Williams & Sorenson, Thomas D. Jex and Amy E. Hoyt, City Attorney,

for Defendant and Respondent.

        In February 2008, when voters chose to incorporate the City of Wildomar

(Wildomar), voters also chose to elect city council members via by-district elections. In

November 2009, voters chose to replace the by-district voting system with an at-large

voting system. Martha Bridges and John Burkett (Plaintiffs) sued Wildomar for

modifying the by-district means of electing city council members. Plaintiffs asserted


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two causes of action: (1) the modification of the voting system violated Government

Code1 sections 57378, 34884, and 34871; and (2) the modification of the voting system

was preempted by the California Constitution. The trial court granted Wildomar’s

motion for summary judgment and denied Plaintiffs’ motion for summary judgment.

       Plaintiffs contend the trial court erred because (1) the modification of the voting

system violates state statutes; (2) the modification of the voting system is preempted by

the California Constitution; (3) Wildomar lacks the authority to repeal enactments that

predate its existence as a city; and (4) the modification is invalid because the relevant

ordinance does not contain a severability clause. We affirm the judgment.

                     FACTUAL AND PROCEDURAL HISTORY

       A.      ELECTIONS

       The Riverside Local Agency Formation Commission (LAFCO) oversees the

incorporation of new cities in Riverside County. In August 2007, LAFCO adopted

Resolution 91-07 ordering Wildomar be incorporated subject to voter approval.

Pursuant to Resolution 91-07, the election to confirm the incorporation of Wildomar

would also present the question of whether, in future elections, members of the

Wildomar City Council (the City Council) would be elected by-district or at-large.

       The incorporation and election system questions were placed on the February

2008 ballot, as Measures C and D, respectively. Voters approved the incorporation of

Wildomar by passing Measure C. Voters also chose to elect future City Council


       1   All further statutory references are to the Government Code unless indicated.


                                             2
members via by-district elections. Wildomar’s incorporation became effective on July

1, 2008. Wildomar incorporated as a general law city.

       On July 22, 2009, the City Council adopted Ordinance No. 31 establishing five

districts for City Council elections, in accordance with the by-district voting system.

Also on July 22, the City Council adopted Resolution No. 09-52 authorizing a special

election to be held on November 3, 2009. The special election would present three

ordinances to the voters.

       On November 3, voters approved Ordinance No. 09-E01, which repealed the by-

district elections ordinance and established an at-large system for electing future

members of the City Council. All members of the City Council have been elected via

at-large votes. No member of the City Council has been elected in a by-district election.

       B.     COMPLAINT

       Plaintiffs sued Wildomar for modifying the by-district means of electing city

council members. Plaintiffs asserted two causes of action: (1) the modification of the

voting system violates sections 57378, 34884, and 34871; and (2) the modification of

the voting system is preempted by the California Constitution.

       C.     WILDOMAR’S MOTION FOR SUMMARY JUDGMENT

       Wildomar filed a motion for summary judgment. Wildomar argued Plaintiffs

were incorrectly asserting that the decision to elect City Council members via a by-

district system was irrevocable. First, Wildomar argued the voting system could

properly be modified because Elections Code section 9222 authorizes a city’s legislative

body to submit to voters a proposition for the repeal or amendment of any ordinance.


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Wildomar asserted it presented the modified election system to the voters, so the

modification was proper.

       Second, Wildomar argued section 34873 expressly authorizes the amendment or

repeal of an ordinance related to City Council elections. The statute provides, “An

ordinance enacted pursuant to this article may be amended or repealed in the same

manner; provided, the term of office of any council member elected shall not be

affected.” (§ 34873.) Wildomar asserted the by-district voting system was created in an

at-large election, and it was repealed in the same manner, i.e., an at-large election.

Accordingly, Wildomar argued the modification to the voting system was proper.

       Third, Wildomar refuted Plaintiffs’ argument concerning sections 34871 and

34884. Section 34871 provides four different options for setting-up by-district election

systems, e.g., “By districts in five, seven, or nine districts,” or “By districts in four, six,

or eight districts, with an elective mayor.” The statute provides the options may be

presented to voters via a City Council sponsored ballot measure or by means of an

initiative measure. (§ 34871.) Wildomar argued the statute was silent as to repealing or

amending a by-district voting system.

       As to section 34884, Wildomar argued it did not prevent the modification or

amendment of a by-district voting system. The statute establishes methods for creating

the districts for a by-district voting system, as well as creating staggered terms for

council members. (§ 34884.) Thus, Wildomar argued the only statute that addressed

the repeal or amendment of the by-district voting system was section 34873. Wildomar

asserted the method by which the voters repealed the by-district voting system was


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proper under section 34873, so Plaintiffs’ first cause of action, concerning statutory

violations, was meritless.

       Fourth, Wildomar refuted Plaintiffs’ preemption theory. Wildomar asserted the

modification to the voting system was not duplicated by general law. Rather, the

modification was a local law applicable only to Wildomar. Further, Wildomar argued

the modification to the voting system did not contradict general law. Wildomar

explained that section 34873 expressly allowed voters to repeal a by-district voting

system, so the modification was consistent with state law. Next, Wildomar asserted the

modification to the voting system did not enter an area that was already fully occupied

by state law. Wildomar reasoned state law expressly allowed municipalities to repeal

by-district voting systems, so the Legislature expressed its intent not to occupy the area

by permitting municipalities to alter their voting systems. Based upon the foregoing

arguments, Wildomar asserted Plaintiffs’ preemption cause of action was meritless.

       D.     PLAINTIFFS’ OPPOSITION TO WILDOMAR’S MOTION FOR

              SUMMARY JUDGMENT

       Plaintiffs opposed Wildomar’s motion for summary judgment. First, in regard to

Wildomar’s argument about Elections Code section 9222, which authorizes a legislative

body to submit to the voters a proposition to repeal or amend an ordinance, Plaintiffs

asserted the argument failed because Elections Code section 9222 does not authorize a

city council to create a new ordinance by placing it on the ballot.

       Second, Plaintiffs addressed Wildomar’s argument concerning section 34873.

Plaintiffs cited section 34871, which provides four different options for setting-up by-


                                             5
district election systems, e.g., “By districts in five, seven, or nine districts,” or “By

districts in four, six, or eight districts, with an elective mayor.” Plaintiffs contended an

at-large voting system was not one of the four options, and therefore, was precluded as a

possibility.

       Additionally, Plaintiffs asserted that because Measure D was placed on the ballot

by LAFCO, section 34873 was not the controlling authority for possibly repealing the

effects of Measure D. Plaintiffs reasoned that because section 34873 concerned

ordinances created by municipalities, and Measure D was the result of LAFCO seeking

to incorporate Wildomar under section 57116, section 34873 was inapplicable.

       E.      JUDGMENT

       At a hearing on the summary judgment motions, the trial court said, “I have read

all the moving and opposing papers on both. And the bottom line is, I think the City of

Wildomar had the legal right based upon what I have read to proceed as it did; to

change from a district to an at large election. So I’m inclined to grant the motion for

summary judgment by the City and deny it by the plaintiffs.” Neither party offered

further argument on the issue. The trial court granted Wildomar’s motion for summary

judgment, and denied Plaintiffs’ motion for summary judgment.

                                       DISCUSSION

       A.      FORFEITURE AND STATUTE OF LIMITATIONS

       Wildomar contends Plaintiffs have forfeited their challenge to the grant of

summary judgment because Plaintiffs’ appeal fails to address several of the arguments

raised in Wildomar’s motion for summary judgment. Wildomar asserts Plaintiffs have


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incorrectly focused their appellate arguments on the denial of Plaintiffs’ motion for

summary judgment, rather than the grant of Wildomar’s motion for summary judgment.

We choose to address the merits of Plaintiffs’ appeal.

       Wildomar also contends Plaintiffs’ challenge to the validity of the subject matter

of the election—the ordinance people voted for—modifying the election system—is

time-barred because Plaintiffs had 30 days to challenge the subject matter, but waited

three years. (Elec. Code, § 16401, subd. (d).) We choose to address the merits of

Plaintiffs’ argument.

       B.     CONFLICT WITH STATE LAWS

       Plaintiffs contend the modification of the voting system from by-district to at-

large conflicts with state laws that do not permit such an alteration, and therefore, the

ordinance modifying the voting system is void.

       “On appeal following a trial court’s grant of a summary judgment motion, we

determine de novo whether an issue of material fact exists and whether the moving

party is entitled to summary judgment as a matter of law.” (County of Tulare v. Nunes

(2013) 215 Cal.App.4th 1188, 1195.) In this appeal, Plaintiffs raise legal issues

concerning the validity of a municipal ordinance. The interpretation of statutes and the

determination of whether a local ordinance is preempted by state laws are also issues

subject to de novo review. (Id. at pp. 1195-1196.)

       “The Supreme Court reiterated the rules of statutory interpretation as follows:

‘When we interpret a statute, “[o]ur fundamental task . . . is to determine the

Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory


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language, giving it a plain and commonsense meaning. We do not examine that

language in isolation, but in the context of the statutory framework as a whole in order

to determine its scope and purpose and to harmonize the various parts of the enactment.

If the language is clear, courts must generally follow its plain meaning unless a literal

interpretation would result in absurd consequences the Legislature did not intend. If the

statutory language permits more than one reasonable interpretation, courts may consider

other aids, such as the statute’s purpose, legislative history, and public policy.” ’ ” (City

of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 350.)

       Section 34873 provides, “An ordinance enacted pursuant to this article may be

amended or repealed in the same manner; provided, the term of office of any council

member elected shall not be affected.” The article includes section 34871, which

provides a legislative body may submit to the electorate an ordinance providing for the

election of members of the legislative body in one of four different ways, such as “[b]y

districts in five, seven, or nine districts,” or “[b]y districts in four, six, or eight districts,

with an elective mayor.”

       The language of the statute reflects it relates to ordinances “enacted pursuant to

this article.” The article concerns the creation of a particular number of districts in a by-

district system. Therefore, the plain language of section 34873 reflects the statute

provides for the repeal or amendment of an ordinance creating a particular number of

electoral districts within a by-district voting system. Accordingly, the question remains

whether section 34873 applies to removing the by-district system entirely in favor of an

at-large voting system.


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       Most likely, the answer is that the statute does apply to removing the by-district

system entirely due to section 57378. Section 57378 provides, “If the voters in the

incorporation election determine that future city council members shall be elected ‘by

districts,’ or ‘from districts,’ the provisions of Article 2 (“commencing with Section

34870”) of Chapter 4 of Part 1 of Division 2 shall apply to those elections.” Section

34873 is within the identified provisions (commencing with Section 34870). Thus,

under the plain language of section 57378, when a by-district system of election is

chosen, section 34873, which concerns repealing ordinances, is an applicable statute.

Therefore, when voters at an incorporation election choose to elect future city council

members in a by-district method, if voters later want to alter that choice, section 34873

would apply.

       Nevertheless, if sections 57378 and 34873 were not to apply for some reason,

then Supreme Court case law would fill that gap. Our Supreme Court has explained,

“ ‘[I]t is the general rule that power to enact ordinances implies power, unless otherwise

provided in the grant, to repeal them. It is patently obvious that the effectiveness of any

legislative body would be entirely destroyed if the power to amend or repeal its

legislative acts were taken away from it. . . . The power of repeal extends, generally

speaking, to all ordinances. Indeed, a municipal corporation cannot abridge its own

legislative powers by the passage of irrevocable ordinances. . . .’ ” (Blotter v. Farrell

(1954) 42 Cal.2d 804, 811.)




                                             9
       There is no dispute that the City Council enacted the ordinance creating the by-

district voting system. Plaintiffs, in their Appellants’ Reply Brief, write, “[Plaintiffs] do

not dispute that Ordinance No. 31 establishing five electoral districts in Wildomar was

duly enacted pursuant to Article 2 (Gov. Code §§ 34870-34884) . . . .” Because the City

Council enacted the by-district ordinance following voter approval, the City Council

also had the authority to repeal or amend that ordinance following voter approval.

(Blotter v. Farrell, supra, 42 Cal.2d at p. 811; see also § 34873.) Accordingly, the City

Council had the authority to act as it did—to alter the voting system from by-district to

at-large, as approved by the electorate. Thus, we conclude the trial court did not err by

granting summary judgment.

       Plaintiffs contend the trial court erred because the City Council did not have the

authority to effectively repeal Measure D, which was placed on the ballot by LAFCO.

Measure D asked voters whether they preferred a by-district or at-large system for

future City Council elections. Thus, Plaintiffs assert the ordinance may have been

properly subject to repeal under section 34873, but Measure D was not subject to repeal

under section 34873.

       When LAFCO creates a resolution to incorporate an area subject to an election,

the resolution must include the question of whether members of the city council, in

future elections, are to be elected by-district or at-large. (§ 57116, subd. (b).) After the

election, LAFCO must file a certificate of completion reflecting which system of

electing council members was favored by the electorate. (§§ 57176, 57178.) Plaintiffs’




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argument does not explain how the resolution created by LAFCO, subject to approval

by the passage of Measure D, takes precedence over Wildomar’s own ordinance.

       Plaintiffs point to section 34880, subdivision (a), which provides, “If the petition

or proposal developed by the commission [(LAFCO)] for submission to the electorate

for incorporation or special reorganization of a city provides for the election of

members of the legislative body by (or from) districts and includes substantially the

provisions required to be included in an ordinance providing for that election, including

Section 34871, the members of the legislative body shall be elected in the manner

provided in the petition or proposal.”

       Plaintiffs rely on section 34880 to support their argument that there is a

difference between Measure D and the ordinance creating the by-district voting system.

While we agree there is a difference, it is unclear how that difference operates to cause

LAFCO’s resolution to take prominence over Wildomar’s own municipal ordinance.

Plaintiffs assert Measure D created a county law, and Wildomar cannot repeal a county

law. Plaintiffs do not explain their underlying premise, i.e., how a LAFCO resolution,

which was subject to voters approving Measures C and D, created an irrevocable county

law.

       It appears from the language of section 57378 that Measure D would be

revocable. As set forth ante, section 57378 provides, “If the voters in the incorporation

election determine that future city council members shall be elected ‘by districts,’ or

‘from districts,’ the provisions of Article 2 (commencing with Section 34870) of

Chapter 4 of Part 1 of Division 2 shall apply to those elections.” Section 34873, which


                                            11
concerns repealing ordinances, is within the identified provisions (“commencing with

Section 34870”). Thus, under the plain language of section 57378, when a measure

passes at an incorporation election, and a by-district system of election is chosen,

section 34873, which concerns repealing ordinances, is an applicable statute. It appears

from the language of section 57378 that the Legislature contemplated the ordinance

taking precedence, and the ordinance being repealed, if so chosen, by the voters.

       Moreover, section 57376, subdivision (a), provides that a newly incorporated city

shall immediately adopt an ordinance providing that all county ordinances are

applicable for 120 days after incorporation “or until the city council has enacted

ordinances superseding the county ordinances, whichever occurs first.” The plain

language of this statute reflects a newly incorporated city may modify its laws, even if

those laws were originally county ordinances. Thus, the effects of Measure D could be

modified.

       Plaintiffs assert section 57376 is inapplicable because Measure D was not a

county ordinance. Section 57376 is included in the discussion herein because there is a

need to cover a variety of possibilities, in that Plaintiffs have not exactly explained why

they believe Measure D is irrevocable and takes precedence over Wildomar’s ordinance.

Plaintiffs contend a variety of modification laws do not apply, but do not explain what

laws could apply if a municipality sought to modify its city council election system. In

other words, Plaintiffs appear to be arguing the by-district voting system is an

irrevocable choice, but it is unclear exactly why Plaintiffs believe that to be true. As a




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result, to the extent Plaintiffs might believe Measure D is irrevocable because it created

a county law, section 57376, is addressed.

       In sum, given the plain language of sections 57378, 57376, and 34873, along

with the Supreme Court precedent of Blotter v. Farrell, supra, 42 Cal.2d at page 811,

we conclude the trial court did not err by granting summary judgment because the law

reflects Wildomar had the authority to modify its City Council election system as

approved by the voters.2

       C.     PREEMPTION

       Plaintiffs contend the modification to the voting system is preempted by the

California Constitution because changing the voting system from by-district to at-large

conflicts with a variety of state laws, such as sections 34881 through 34884. As

explained ante, a conflict with California law would be created if an ordinance were

irrevocable because a municipal corporation’s powers would be abridged by such a law.

(Blotter v. Farrell, supra, 42 Cal.2d at p. 811.) Plaintiffs do not point to any law

reflecting the choice of a by-district election system is irrevocable such that a conflict

would be created by altering the system to an at-large system. (See City of Riverside v.

Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, 743 [a


       2 Wildomar requests this court take judicial notice of the legislative history of
sections 34870 through 34884 (Assem. Com. on Elections & Reapportionment,
Analysis of Assem. Bill No. 1668 (2010)). (Evid. Code, § 452, subd. (c).) We grant the
request for judicial notice, as required by law. (Evid. Code, § 453.) However, we need
not delve into the legislative history due to the clarity of the statutes’ plain language.
(See City of Glendale v. Marcus Cable Associates, LLC, supra, 235 Cal.App.4th at p.
350 [consider legislative history if plain language is ambiguous].)


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local law is preempted if it conflicts with state laws].) Accordingly, we conclude the

modification to the voting system is not preempted by the California Constitution.

       D.     SEVERABILITY CLAUSE

       Plaintiffs contend the modification of the voting system is invalid because the

ordinance modifying the voting system does not contain a severability clause. Plaintiffs

assert the lack of severability clause is relevant because the “at-large” clause in the

ordinance and the portion of the ordinance repealing Measure D “are clearly invalid.”

We have concluded ante, that Plaintiffs have failed to demonstrate the ordinance is

invalid. Accordingly, we find the severability issue to be moot. (See Cucamongans

United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th

473, 479 [issue is moot when no effective relief can be provided].)

                                       DISPOSITION

       The judgment is affirmed. Respondent, City of Wildomar, is awarded its costs

on appeal.

       CERTIFIED FOR PUBLICATION

                                                        MILLER
                                                                                          J.


We concur:


KING
                        Acting P. J.


CODRINGTON
                                  J.


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