                              TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                   OFFICE OF THE ATTORNEY GENERAL

                                             State of California


                                               DANIEL E. LUNGREN

                                                 Attorney General


                                 ______________________________________

                      OPINION           :

                                        :          No. 95-203

                   of                   :

                                        :          May 12, 1995

          DANIEL E. LUNGREN             :

            Attorney General            :

                                        :

         ANTHONY S. Da VIGO             :

         Deputy Attorney General        :

                                        :
______________________________________________________________________________

               The City of Modesto has requested this office to grant leave to sue in quo warranto
upon the following:

                                             ISSUE OF FACT OR LAW

                Does reasonable cause exist to believe that Richard Patterson, a member of the City
Council of the City of Modesto, will not be able to perform the duties of his office for the remainder of
his term because of physical or mental incapacity?

                                                     DISPOSITION

                Reasonable cause exists to believe that Richard Patterson will be unable to perform the
duties of his office for the remainder of his term as a member of the City Council of the City of
Modesto because of physical or mental incapacity. Accordingly, leave to sue in quo warranto is
GRANTED.

                                                     THE PARTIES

                 The City of Modesto ("relator") 1 contends that Richard Patterson ("defendant") has
vacated his office as a member of the City Council of the City of Modesto due to physical incapacity.
    1
      We have previously determined that a public agency may act as a relator under the provisions of Code of Civil Procedure
section 803. (76 Ops.Cal.Atty.Gen. 157, 163 (1993).)


                                                             1.                                                     95-203

                                          MATERIAL FACTS


                On November 2, 1993, defendant was elected to the City Council of the City of
Modesto for a term of four years. Defendant assumed his duties of office on November 9, 1993, and
continued to serve in that capacity until December 26, 1993, when he suffered a severe stroke. While
defendant's condition has continued to improve, he has not attended or performed any public duties
since the onset of his illness, and continues to be disabled from doing so due to medical incapacity.
Prospectively, defendant offers no indication as to when he might be able to return to his duties as a
council member.

                                              ANALYSIS

                A charter city is governed by the terms of its charter with respect to such matters as the
appointment, election, compensation, and removal of its officers and employees. (See Cal. Const., art.
XI, ' 5; Ector v. City of Torrance (1973) 10 Cal.3d 129, 132-133; Pearson v. County of Los Angeles
(1957) 49 Cal.2d 523, 533-537; 64 Ops.Cal.Atty.Gen. 42, 43-45 (1981).) Hence, the conditions under
which a vacancy is created in an office of a charter city depends upon the language of the city's charter.
Here, the charter of the City of Modesto provides that Government Code section 1770 shall govern the
existence of a vacancy on the city council. (Modesto Charter, ' 502.)

                Government Code section 1770 provides in part as follows:

                "An office becomes vacant on the happening of any of the following events
        before the expiration of the term:

                "(a) The death of the incumbent.

               "(b) An adjudication pursuant to a quo warranto proceeding declaring that the
        incumbent is physically or mentally incapacitated due to disease, illness, or accident
        and that there is reasonable cause to believe that the incumbent will not be able to
        perform the duties of his or her office for the remainder of his or her term . . . ."

The phrase "reasonable cause to believe" has not been expressly defined by the Legislature for purposes
of section 1770.

                In the criminal law context, however, we note that reasonable cause to believe that the
accused has committed a crime, as a basis for an arrest, does not require certainty beyond doubt, but
only that a person of ordinary care and prudence would be led to believe and conscientiously entertain
an honest and strong suspicion that the accused is guilty of a crime. (People v. Turner (1994) 8
Cal.4th 137, 195; Mann v. Macy (1984) 155 Cal.App.3d 666, 674.)

                In the civil law context, it is to be observed that a cause of action may not be filed for
civil conspiracy under the provisions of Civil Code section 1714.10 unless the party making the claim

                                                    2.                                            95-203

has established that there is a "reasonable probability" that the party will prevail in the action. In
Burtscher v. Burtscher (1994) 26 Cal.App.4th 720, 725-726, the court recently analyzed this statutory
requirement:

                "To start, we reject defendants' contention that establishing a `reasonable
        probability' under the statute goes beyond a prima facie case . . . . Hung v. Wang
        (1992) 8 Cal.App.4th 908, interprets `reasonable probability' under section 1714.10 to
        mean only a prima facie showing. In the court's words: `As we construe section
        1714.10, the trial court may not make findings as to the existence of facts based on a
        weighing of competing declarations. Whether or not the evidence is in conflict, if the
        petitioner has presented a sufficient pleading and has presented evidence showing that a
        prima facie case will be established at trial, the trial court must grant the petition.' ([Id.]
        at pp. 933-934.) In Aquino v. Superior Court (1994) 21 Cal.App.4th 847, we adopted
        the same approach in interpreting `substantial probability' under Code of Civil
        Procedure section 425.13 to require only a prima facie showing of plaintiff's entitlement
        to punitive damages. (Id. at pp. 854-856.)

                 "In making such prepleading determinations, the trial court is not weighing
        conflicting evidence, determining credibility or drawing inferences. It is performing a
        `gatekeeping' function, filtering out frivolous allegations of conspiracy but without
        subjecting them to the `fact adjudicative screen' that would violate the right to a jury
        trial. ([Id.] at p. 856; Hung v. Wang, supra, 8 Cal.App.4th at p. 931.) . . . ."

                 In our view, relator has made a prima facie case, whether considered independently or
in conjunction with such controverting evidence as has been submitted in connection with this
proceeding. Indeed, defendant has been unable to file a declaration on his own behalf in this matter; a
spokesperson confirms that defendant has been unable to return to his official duties since he became ill
and that he continues to be disabled. Defendant presents no indication as to the date when he might be
able to return to his duties of office as a council member.

                 While the circumstances of defendant's ill health are manifestly unfortunate, and
notwithstanding his strong desire to serve the citizens of the City of Modesto, we find that relator has
presented a substantial issue of fact or law, by way of the verified declarations of the mayor, city
manager, and city clerk, as to the basis for and existence of reasonable cause to believe that defendant
will not be able to perform the duties of his office for the remainder of his term.

                                           PUBLIC INTEREST

                 Both the City of Modesto, as a public entity, and the city's residents have an interest in
the timely and effective execution of the public duties of all city officers and employees. We find no
countervailing considerations in the facts or circumstances presented by defendant that would warrant
delay in instituting a quo warranto proceeding. The public interest in granting leave to sue is thus
statutorily (Gov. Code, ' 1770, subd. (b)) and factually supported.

                                                  *****

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