Filed 12/16/14 Martinez v. City of Watsonville CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


EMILIO MARTINEZ et al.,                                              No. H038230
                                                                    (Santa Cruz County
         Plaintiffs and Appellants,                                  Super. Ct. No. CV169473)

         v.

CITY OF WATSONVILLE et al.,

         Defendants and Respondents.



         The City of Watsonville’s City Charter (the City Charter) relies on the definition
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of vacancy in Government Code section 1770. In 2010, section 1770 provided that “[a]n
office becomes vacant on the happening of any of the following events before the
expiration of the term: [¶] . . . [¶] . . . [the officeholder’s] resignation.” In 2010,
respondent City of Watsonville (the City) took the position that a resigning member of
the Watsonville City Council whose resignation had not yet become effective would be
permitted to participate in the vote to appoint his successor. The City concluded that a
vacancy existed under the City Charter as soon as the resigning member submitted a
letter announcing an intent to resign even though the letter made the resignation effective
upon the appointment of the member’s successor.



1
         Statutory references are to the Government Code.
          Appellants Emilio Martinez, Kathleen Morgan-Martinez, and Kenneth Adelman
challenged the City’s position by seeking injunctive and declaratory relief. Their request
for a preliminary injunction was denied, the vote on appointment of the member’s
successor took place with the resigning member voting, and the successor was
unanimously appointed. In 2012, the trial court rejected appellants’ challenge on the
merits.
          Appellants filed an appeal in which they challenged the trial court’s construction
of section 1770. While this appeal was pending, citizens of the City placed Measure H
on the June 2014 ballot to change the City Charter to redefine “vacancy” and to preclude
the Watsonville City Council from filling any vacancies by appointment. Measure H was
passed by the voters and took effect in June 2014.
          The Legislature subsequently passed, and the Governor approved, Assembly Bill
No. 1795, which amended sections 1770 and 36512. (Stats. 2014, ch. 725.) Under the
amended version of section 1770, “[a]n office becomes vacant on the happening of any of
the following events before the expiration of the term: [¶] . . . [¶] . . . His or her
resignation, except as provided in paragraph (2). [¶] (2) In the case of the office of city
council member, upon the delivery of a letter of resignation by the resigning council
member to the city clerk. The letter of resignation may specify a date on which the
resignation will become effective.” (Stats. 2014, ch. 725, § 1.) The amendment to
section 36512 added subdivision (e). The new subdivision (e) provides, in part: “If the
city council of a city that elects city council members by or from districts elects to fill a
vacancy on the city council by appointment as a result of a city council member resigning
from office, the resigning city council member may cast a vote on the appointment if the
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resignation will go into effect upon the appointment of a successor.” (Stats. 2014,
ch. 725, § 2.)

2
          Watsonville elects its city council members by district.

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       The City has filed a motion to dismiss the appeal as moot. Appellants oppose this
request. They do not challenge the conclusion that this case is moot, but they argue that
this case falls within an exception to the general rule that appellate courts do not decide
moot cases.
       “The primary purpose of the public judiciary is ‘to afford a forum for the
settlement of litigable matters between disputing parties.’ [Citation.] We do not resolve
abstract legal issues, even when requested to do so. We resolve real disputes between real
people.” (Neary v. Regents of University of California (1992) 3 Cal.4th 273, 281-282.)
“The rendering of advisory opinions falls within neither the functions nor the jurisdiction
of this court.” (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912.) “It is
settled that ‘the duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.’ ” (Paul v. Milk Depots, Inc.
(1964) 62 Cal.2d 129, 132.)
       We recognize that there are exceptions to the rule that appellate courts will not
issue advisory opinions in moot cases. Under the “public interest” exception, “[i]f an
action involves a matter of continuing public interest and the issue is likely to recur, a
court may exercise an inherent discretion to resolve that issue, even though an event
occurring during its pendency would normally render the matter moot.” (Liberty Mut.
Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-16; accord NBC Subsidiary (KNBC-TV), Inc.
v. Superior Court (1999) 20 Cal.4th 1178, 1190, fn. 6.) This exception generally applies
only where the issue is otherwise likely to “evade review.” (Conservatorship of
Wendland (2001) 26 Cal.4th 519, 524, fn. 1.)
       Appellants assert that this case falls within the “public interest” exception and ask
us to exercise our discretion to resolve their challenge despite its mootness. They claim
that “the issue in this case” is an important issue of public interest that is likely to recur

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and to evade review. The “issue in this case” that was litigated by the parties in the
superior court and in the original briefs in this court was the proper application of the
2010 version of section 1770 to a Watsonville City Council member’s submission of a
letter of resignation that was not effective until the appointment of his successor. That
issue is plainly unlikely to recur after the passage of Measure H and the amendment of
section 1770.
       Appellants rely on Fallbrook Sanitary Dist. v. San Diego Local Agency Formation
Com. (1989) 208 Cal.App.3d 753 (Fallbrook) to support their assertion that we should
exercise our discretion under the public interest exception. The issue on appeal in
Fallbrook was whether the respondent, San Diego Local Agency Formation Commission
(LAFCO), had the power to make additions to a district’s incorporation proposal.
(Fallbrook, at p. 756.) While the appeal was pending, the incorporation proposal at issue
was rejected by the voters. The appellant asked the Fourth District Court of Appeal to
resolve the issue despite its mootness. The Fourth District agreed to so do under the
public interest exception. It explained that “[t]his [exception] has been applied where, as
here, although an intervening election has resolved the parties’ dispute, questions
concerning the validity or interpretation of a statute remain unanswered.” (Fallbrook, at
p. 757.) The San Diego LAFCO had a practice of making additions to incorporation
proposals, so the issue was likely to recur. (Fallbrook, at pp. 757-758.)
       Fallbrook is readily distinguishable. In Fallbrook, although the specific action by
the respondent was moot, the validity of the respondent’s practice of making additions to
incorporation proposals remained unresolved, and the practice was likely to recur. In
contrast, the practice of the City challenged by appellants cannot recur because the
amendment to the City Charter precludes the replacement of a resigning city council
member by appointment. In addition, the portion of section 1770 that was the subject of
the dispute between the City and appellants has been substantively amended. Our
consideration of the proper construction of the pre-amendment version of section 1770

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would not resolve the proper construction of the post-amendment version of
section 1770, which must be construed in light of the amended version of section 36512.
Since this entire case both in the superior court and this court has been litigated based on
the pre-amendment version of section 1770, it would be an inappropriate exercise of our
discretion for us to choose to resolve the proper construction of the post-amendment
version of section 1770 in this appeal.
       Appellants’ reliance on County of Madera v. Gendron (1963) 59 Cal.2d 798
(Madera) is similarly misplaced. The issues in Madera were whether a state statute
could constitutionally prohibit a district attorney from engaging in the private practice of
law and whether the county could lawfully withhold his salary if he did so. (Madera, at
p. 800.) The trial court upheld the validity of the statute and ruled that the county could
not pay the district attorney if he engaged in the private practice of law. (Ibid.) Gendron
appealed. By the time the appeal was decided, Gendron had left office and been replaced
by a successor. (Madera, at p. 803.) The California Supreme Court found that the public
interest exception applied because the trial court’s ruling would apply to Gendron’s
successor and the statute would apply to all district attorneys in the state. (Madera, at
p. 804.)
       This case bears no resemblance to Madera. Unlike the ruling in Madera, the trial
court’s ruling in favor of the City cannot apply to anyone in the City in the future as a
result of the City Charter amendment. While the statute construed by the trial court in
Madera remained applicable to all district attorneys in the state, the relevant provision of
section 1770 that was the focus of the parties’ dispute has been substantively amended.
Madera provides no support for appellants’ argument that we should exercise our
discretion to decide this moot appeal.
       Appellants also argue that we should resolve this appeal despite its mootness
because the superior court’s ruling was “broad.” However, “ ‘[t]rial courts make no
binding precedents.’ ” (Neary v. Regents of University of California, supra, 3 Cal.4th at

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p. 282.) Our dismissal of this appeal on mootness grounds will not establish any
precedent on the issue that the parties litigated, and any issue concerning the post-
amendment version of section 1770 may be resolved in an appropriate action litigated
based on a real dispute to which that statute applies, rather than a moot dispute that was
litigated under a superseded version of section 1770.
       None of the other cases cited by appellants persuades us that this case presents an
appropriate one for us to exercise our discretion and resolve a moot issue. Accordingly,
we grant the City’s motion to dismiss.




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                                _______________________________
                                Mihara, J., Acting P. J.



WE CONCUR:




_____________________________
Márquez, J.




_____________________________
Grover, J.




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