                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                       OFFICE OF THE ATTORNEY GENERAL
                                 State of California

                                   XAVIER BECERRA
                                    Attorney General

                              _________________________

                                              :
                 OPINION                      :                No. 18-1103
                                              :
                     of                       :                June 13, 2019
                                              :
           XAVIER BECERRA                     :
            Attorney General                  :
                                              :
        LAWRENCE M. DANIELS                   :
         Deputy Attorney General              :
                                              :


________________________________________________________________________


        Proposed relator SCOTT LEAHY has requested leave to sue proposed defendant
WALLACE T. MARTIN to remove him from the public office of member of the
Ridgecrest City Council on the ground that proposed defendant MARTIN did not legally
reside in the city at the time his nomination papers were issued, at the time of his election,
and during his term of office.

                                      CONCLUSION

     Leave to sue is GRANTED to determine whether proposed defendant WALLACE
T. MARTIN meets the legal residency requirements for holding the public office of council
member of the City of Ridgecrest.




                                              1
                                                                                     18-1103
                                       ANALYSIS

      Introduction

        Ridgecrest is a general law city in Kern County governed by a city council
consisting of a mayor and four members who serve at large. Proposed defendant Wallace
T. Martin (Defendant) was elected as a Ridgecrest city council member in November 2016.
Proposed relator Scott Leahy (Relator), another candidate in the election, has submitted an
application in quo warranto challenging Defendant’s eligibility to serve as council member
for failing to be a legal resident of Ridgecrest, as required by state law, and has offered
evidence and argument why he should be allowed to sue in court to remove Defendant
from the office he now holds. After carefully reviewing the parties’ submissions, we
conclude that a substantial question is presented regarding Defendant’s legal residency and
that it would be in the public interest to allow a quo warranto lawsuit to proceed.

       Background

       The following timeline reflects the parties’ allegations about Defendant’s legal
residency:

          • A copy of a grant deed submitted by Relator indicates that Defendant and his
            wife bought a property on Felspar Avenue, located in an unincorporated area
            of Kern County, just outside the City of Ridgecrest, on October 3, 2001.
            According to a copy of another grant deed submitted by Relator, Defendant
            and his wife made an interspousal transfer of this property to Defendant on
            September 22, 2016. A newspaper article dated April 7, 2017 reports that at
            a Ridgecrest City Council meeting, Defendant referred to this property as his
            “former home.” In his sworn declaration dated November 19, 2018,
            Defendant refers to the property as “our [his and his wife’s] property.”

          • According to Defendant’s declaration, he entered into a rental agreement to
            lease a property on Lee Avenue in Ridgecrest on June 27, 2016, almost 15
            years after he and his wife purchased the home on Felspar. Defendant further
            declares that the rental agreement took effect on July 1, 2016. According to
            a newspaper article submitted by Relator, Defendant reportedly stated at a
            candidate forum held on September 29, 2016, that he was leasing the
            property “from a friend on a temporary basis.” Later, Defendant was
            reported to have stated at an April 7, 2017 city council meeting that he had
            rented the Ridgecrest property in order to “follow the letter of the law” to be
            eligible for city council.


                                            2
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            • On August 2, 2016, as reflected in a copy of Defendant’s nominating papers
              submitted by Relator, Defendant stated listing his residence as the Lee
              Avenue address.1 Also on August 2, 2016, according to both Defendant’s
              declaration and his reported statement at the candidate forum mentioned
              above, he registered to vote using the Lee Avenue address.

            • On or about October 25, 2016, according to Defendant’s declaration,
              Defendant completed a purchase of a duplex property on California Avenue
              in Ridgecrest. At the city council meeting held April 7, 2017, Defendant
              stated that he had done so as an “extra step” to establish legal residency in
              the city.

            • On November 8, 2016, Defendant won election to the Ridgecrest City
              Council in the Kern County consolidated presidential general election.2
              Relator asserts that on December 7, 2016, Defendant was sworn into office.

            • On January 17, 2017, Defendant declares, the tenant in one of his duplex
              units on California Avenue in Ridgecrest vacated the premises at
              Defendant’s behest. Defendant further declares that sometime in April 2017,
              after completing substantial repairs, he moved into this unit. His declaration
              further states that on April 7, 2017, he changed his driver’s license to reflect
              this address, and that on June 5, 2018, he changed his voter registration in
              kind.

       In his application to sue in quo warranto, Relator states that Defendant “still lives”
on Felspar Avenue outside Ridgecrest and does not live at either the Lee or California
Avenue addresses in Ridgecrest. Relator attaches reports from a private investigator
suggesting that Defendant lodged at the Felspar Avenue address from May 9 through 11,
2018, and from May 14 through 15, 2018. In his declaration, the investigator states that
during these periods, Defendant went to his place of work in Ridgecrest in the morning,
came home to the Felspar Avenue address after work, and stayed there in the evening.


   1
     These documents also indicate that on August 3, 2016, Defendant signed a pledge to
conduct his campaign in accordance with the “Code of Fair Campaign Practices,” and that
on August 11, 2016, Defendant submitted his ballot designation worksheet. In response,
Defendant does not specifically contest that he “received” his nomination papers on August
2, 2016, but rather states that he “pulled” his nominating papers on August 8, 2016. In any
case, these small distinctions in terminology and timing do not affect our analysis.
   2
       https://www.kernvote.com/ElectionInformation/Results?ID=88.

                                               3
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       In the declaration he submitted in support of his opposition, Defendant states that
he “stayed at” the Felspar Avenue address from May 9 through 11, 2018, and that he did
so to care for his wife (as well as some animals on his property) because she needed
treatment for a “medical condition.” Defendant also states that he “once again stayed at”
Felspar on the “evening” of May 14 and explains that this was to care for his animals while
his wife traveled to UCLA for medical treatment. Defendant contends, however, that even
assuming he has dual residences both inside and outside the Ridgecrest city limits, this “4-
day snapshot out of 815 possible days” does not negate that his “domicile” was and is in
Ridgecrest.

        In reply, Relator submits additional evidence to show that contrary to Defendant’s
contention, it was not merely these dates that Defendant stayed at the Felspar Avenue
address.3 Relator contends that his evidence demonstrates that Defendant’s “dual residence
claims . . . are a sham attempt at establishing domicile in Ridgecrest city to make him
eligible for city council.” To support this assertion, Relator submits a sworn declaration
from Lori Acton (another candidate in the Ridgecrest city council election), who states that
from September 2017 through June 2018, she lived in a residence on California Avenue
that had “an unobstructed view” of Defendant’s duplex units, one of which Defendant
states that he moved into in April 2017. Acton alleges that she had a “daily routine of
checking for [Defendant] or his vehicles” at the duplex but that she never observed

   3
     Defendant objects to the introduction of all the factual allegations in Relator’s reply
because they were not presented in Relator’s application. However, much of Relator’s
reply evidence—the declarations involving service of the application materials and the
amended statement of facts—could not have been argued in the original application.
Moreover, at this state of the analysis, we are not conclusively adjudicating factual or legal
issues, but simply determining whether to allow Relator to initiate a quo warranto action.
In making this determination, we follow our own established procedures, which do not
prohibit consideration of evidence submitted in a reply pleading in response to a showing
made by the proposed defendant. (See California Attorney General, Quo Warranto,
Resolution of Disputes—Right to Public Office (1990) p. 3 [quo warranto “is established
solely as an action at law authorized by statute” and its application procedures “are
contained in sections 803-811 of the Code of Civil Procedure and in sections 1 through 11
of the California Code of Regulations”]; Cal. Code Regs., tit. 11, § 4 [in a reply, the
proposed relator may “reply to the showing thus made by the proposed defendant” in the
opposition]; see also Code Civ. Proc., § 803 [Attorney General may initiate action “upon
his own information” without “a complaint of a private party”]; Cal. Code Regs., tit. 11,
§ 10 [in certain cases of “urgent necessity,” Attorney General may issue leave to sue to a
proposed relator without allowing opposition from the proposed defendant].) In any event,
as will be seen, we need not rely on the reply evidence to find substantial questions as to
Defendant’s legal residency at the time he was nominated and elected.

                                              4
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Defendant, his wife, or their cars there. Acton says that, between February and May 2018,
she “would drive [her] boyfriend’s sons to school each morning at 7:20 a.m.” and “check”
the “duplexes,” and, likewise, did not see Defendant, his wife, or their vehicles there.
Acton further swears that between May 2018 and October 2018, while driving to her
father’s residence (which she did with “considerable” frequency during this period “due to
his declining health”), she passed by Defendant’s duplex property each time, “specifically
looked to determine” whether Defendant’s or his wife’s cars “were parked at that location,”
but “[a]t no time did [she] ever see” either of their cars parked there. On the other hand,
when “occasionally” driving by the Felspar Avenue residence outside Ridgecrest, she
“would observe” Defendant’s and his wife’s “vehicles parked in their driveway behind an
electronic gate.” Additionally, Acton declares that “[f]or over the past two years [she] has
received telephone calls from multiple individuals who have attended dinner parties at the
[Defendant and his wife’s] county residence on Felspar.”

       Relator has also submitted declarations from two process servers—Peggy Partida
and Kenneth Yule—in support of his claim that Defendant still legally resides at the Felspar
Avenue property, not at any Ridgecrest address. The contents of these declarations are
described below.

        First, on October 27, 2018, at 8:32 a.m., Peggy Partida “personally served”
Defendant at the Felspar Avenue address with the quo warranto application materials now
under consideration. At the time of service, Partida declares, Defendant came to the door
looking “as if he had just woken up” and wearing “sweats.” Then, on October 29, 2018,
at 7:25 a.m., according to an “affidavit of due diligence” (signed under penalty of perjury)
attached to her declaration, Partida attempted to serve Defendant with an amended verified
statement of facts at the Lee Avenue property in Ridgecrest (which Defendant was leasing)
but received “no answer.” At 8:00 a.m., Partida declares, she attempted to serve Defendant
at the Felspar Avenue address. Partida says that while she was “on a public road while in
[her] car,” Defendant’s wife “threatened to call the sheriff if [she] did not leave.”4

       Subsequently, on October 31, 2018, according to process server Kenneth Yule’s
declaration and attached “affidavit of reasonable diligence” (also signed under penalty of
perjury), Yule unsuccessfully “personally attempted” to serve Defendant at the Felspar,
California, and Lee addresses with the same amended pleading at 6:00 p.m., 6:30 p.m., and
7:05 p.m., respectively. On November 3, 2018, at 11:20 a.m. in yet another unsuccessful
service attempt, according to Yule’s declaration and attached affidavit of reasonable
diligence, Yule saw Defendant’s “two toned Dodge Ram parked in front of his gate at” the
Felspar Avenue property. Finally, on November 5, 2018, at noon, according to Partida’s

   4
    Partida’s declaration does not disclose the proximity of this road to the Felspar Avenue
property or the location of Defendant’s wife during this alleged incident.

                                             5
                                                                                    18-1103
declaration and proof of service, after Defendant requested to meet in a public place,
Partida served Defendant at a Denny’s restaurant in Ridgecrest.

          Applicable Law

       Quo warranto is an action for challenging whether someone lawfully holds a public
         5
office. 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.”6 If a private party desires to
bring a quo warranto lawsuit in superior court, the party must first obtain leave from the
Attorney General.7 In determining whether to grant such leave to sue, we do not decide
the merits of the controversy; rather, we decide whether there is a substantial issue of fact
or law warranting judicial resolution and whether permitting a quo warranto action to
commence would serve the overall public interest.8

       The position of city council member is a public office for quo warranto purposes.9
An established ground to challenge a city council member’s occupation of the office in a
quo warranto proceeding is that the member does not legally reside in the city.10
Specifically, a person may not serve as a city council member unless the person resides
within city boundaries when nomination papers are issued, when assuming office, and
throughout the term of office.11 For this purpose, residence means “legal residence” or
“domicile.”12 Legal residence or domicile is defined as a place of physical presence joined

   5
     Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1225; 76
Ops.Cal.Atty.Gen. 157, 162-163 (1993).
   6
    Code Civ. Proc., § 803; see Rando v. Harris (2014) 228 Cal.App.4th 868, 873; 97
Ops.Cal.Atty.Gen. 12, 14 (2014).
   7
    Nicolopulos v. City of Lawndale, supra, 91 Cal.App.4th at pp. 1228-1229; 98
Ops.Cal.Atty.Gen. 85, 87 (2015).
   8
    Rando v. Harris, supra, 228 Cal.App.4th at p. 879; 100 Ops.Cal.Atty.Gen. 29, 30
(2017).
   9
        99 Ops.Cal.Atty.Gen. 74, 76 (2016); 87 Ops.Cal.Atty.Gen. 30, 31 (2004).
    See, e.g., 99 Ops.Cal.Atty.Gen., supra, at p. 74; 85 Ops.Cal.Atty.Gen. 90, 90 (2002);
   10

72 Ops.Cal.Atty.Gen. 63, 63-64 (1989); 35 Ops.Cal.Atty.Gen. 198, 198-199 (1960).
   11
       Gov. Code, §§ 1770, subd. (e), 34882, 36502, subd. (a); 99 Ops.Cal.Atty.Gen., supra,
at p. 76.
   12
         Walters v. Weed (1988) 45 Cal.3d 1, 7; 72 Ops.Cal.Atty.Gen. 8, 11 (1989).

                                              6
                                                                                     18-1103
with the intent to make the place a permanent home.13 It is the place where a person has
“the most settled and personal connection.”14 Although a person may have multiple
residences, a person may have only one legal residence/domicile.15 Factors considered in
determining domicile include the person’s acts and declarations, mailing address, voter
registration, tax returns, driver’s license, and homeowner’s exemption.16

        Once established, a domicile is presumed to continue until it is demonstrated that a
new domicile has been acquired.17 Where a relator establishes a defendant’s domicile
outside the relevant locality, the defendant has the burden of showing a change of domicile
inside the locality.18 In such a case, the defendant must make a sufficient showing of
“physical presence” at the alleged new domicile.19 To satisfy the “critical element” of
intent, “declarations of intent are significant,” but “they are not determinative. The acts
must be examined as well.”20 Although there is nothing improper about establishing a
domicile in order to gain eligibility for office,21 “[i]t is not enough that a [person] desires
to acquire or keep a ‘legal residence’ or ‘legal domicil;’ the intention necessary for the
acquisition of a domicil is an intention as to the fact, not as to the legal consequences of



   13
      Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107, 1116; 95 Ops.Cal.Atty.Gen.
43, 46 (2012); see Elec. Code, § 349, subd. (b) (“The domicile of a person is that place in
which his or her habitation is fixed, wherein the person has the intention of remaining, and
to which, whenever he or she is absent, the person has the intention of returning”); Gov.
Code, § 244, subd. (a).
   14
        Smith v. Smith (1955) 45 Cal.2d 235, 239.
   15
     Gov. Code, § 244, subd. (b); Smith v. Smith, supra, 45 Cal.2d at p. 239; 99
Ops.Cal.Atty.Gen., supra, at p. 76.
   16
      99 Ops.Cal.Atty.Gen., supra, at pp. 76-77; 73 Ops.Cal.Atty.Gen. 197, 209-210
(1990).
   17
     Gov. Code, § 244, subd. (c); Walters v. Weed, supra, 45 Cal.3d at pp. 7-8; 90
Ops.Cal.Atty.Gen. 82, 86 (2007).
   18
     DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268-1269; 81 Ops.Cal.Atty.Gen.
98, 102 (1998).
   19
        90 Ops.Cal.Atty.Gen., supra, at p. 86.
   20
      72 Ops.Cal.Atty.Gen., supra, at p. 14; see also 85 Ops.Cal.Atty.Gen., supra, at p. 93
(“the most important evidence of [the council member’s] intent is his conduct”).
   21
     See 101 Ops.Cal.Atty.Gen. 16, 21 (2018) (“Moving to an electoral district in order to
run for office in that district does not defeat the intent for domicile”).

                                                 7
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the fact.”22

        Substantial Questions Exist as to Defendant’s Legal Residency

       It is uncontested that from October 2001 to June 2016, Defendant’s domicile was
his Felspar Avenue property in unincorporated Kern County outside the City of Ridgecrest.
Defendant therefore carries the burden of showing that he changed his domicile to a
location inside Ridgecrest before being issued his nomination papers in August 2016 and
before his election in November 2016.

       Based on a careful review of the parties’ submissions, we have no cause to doubt
that Defendant intended that his rental property on Lee Avenue would function as his
domicile for purposes of his nomination to city council, effective July 2016, but there
remains a question whether it actually became his new domicile—that is, a place of
physical presence joined with the intent to make it his permanent home. Defendant stated
only that he was leasing the property “on a temporary basis” for the sake of demonstrating
legal residency in Ridgecrest. While Defendant changed his voter registration to the Lee
Avenue address around the time of his nomination, he has not declared that he spent any
time there, let alone lived there, nor that he took any concrete steps to make it his home.
We therefore find a substantial question as to whether Defendant has carried his burden of
showing that he had changed his longtime domicile to a location inside Ridgecrest at the
time of his nomination.

       Moreover, there is a legitimate issue whether Defendant established a domicile
within Ridgecrest between his nomination in August 2016 and his election in November
2016. In October 2016, Defendant purchased a duplex on California Avenue in Ridgecrest
as an “extra step” to establish legal residency. Here too, Defendant’s intent that his
domicile be legally considered as Ridgecrest for the purpose of the election is apparent.
But again, what is lacking is any corroborating evidence of his physical inhabitation, or
even his physical presence, at his temporary rental on Lee Avenue between the nomination
and election. According to Defendant, he did not move into one of his duplex units on
California Avenue in Ridgecrest until April 2017, after his election. We therefore also find
a substantial question whether Defendant has carried his burden of showing a change of
domicile to Ridgecrest before the election.

      Lastly, we believe that Relator has raised a significant issue as to whether Defendant
has been domiciled in Ridgecrest continuously since his election in November 2016.

   22
      Johnson v. Johnson (1966) 245 Cal.App.2d 40, 45, internal quotation marks omitted,
spelling of “domicil” and placement of semicolon in original; see ibid. (“A man’s home is
where he makes it, not where he would like to have it”).

                                             8
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Defendant alleges that he moved into a duplex unit on California Avenue in April 2017,
but that leaves the period from November 2016 to April 2017 with no evidence that he had
a fixed habitation in Ridgecrest beyond his statements that he entered into a rental
agreement with a friend in order to become eligible for city council. And although
Defendant summarily declares that he moved into the California Avenue unit that he
purchased, he does not allege how often he has been dwelling there.

        In fact, the evidence submitted by Relator credibly suggests that there has been, at
least, a sizable amount of time when Defendant has had no physical presence in Ridgecrest
since the election. To summarize, one potential witness declares that she regularly
observed Defendant’s duplex unit on California Avenue from September 2017 through
October 2018 (daily from September through June, and frequently thereafter), not seeing
Defendant, his wife, or their cars there. Defendant was served with the original quo
warranto application in the morning at his Felspar Avenue property (outside Ridgecrest),
appearing as though he had just woken up, which suggests he had slept there overnight. In
addition, the process servers could not locate Defendant at his Ridgecrest addresses on
multiple dates, also corroborating the allegation that he has not established an abode within
Ridgecrest.23 Indeed, Defendant does not dispute that he happened to be staying at the
Felspar Avenue location on the days of the investigator’s stakeout in May 2018. Other
evidence allegedly identifying Defendant’s and his wife’s vehicles and dinner parties at
their Felspar Avenue property also tends to show their regular presence there.

        Without purporting to resolve Relator’s claim, or conclusively determine the facts
at issue, we find that the totality of the evidence submitted to us raises a substantial question
whether Defendant’s domicile has been in Ridgecrest at all times while serving as council
member.

        The Overall Public Interest Warrants Allowing Relator to Pursue a Quo
        Warranto Action

       Absent countervailing considerations, we have viewed the existence of a substantial
question of fact or law as presenting a sufficient “public purpose” to warrant granting leave


   23
      See 97 Ops.Cal.Atty.Gen. 1, 4 (2014) (granting an application to sue a school district
trustee in quo warranto, finding that “we cannot ignore or discount his regular absence
from [the residence inside the district]” and “his regular presence at [the residence outside
the district]”); 95 Ops.Cal.Atty.Gen., supra, at p. 48 (granting an application to sue a water
district director because the documents presented “indicate little physical presence at the
[district] address, coupled with significant activity and evidence of residence” outside the
district).

                                               9
                                                                                        18-1103
to sue in quo warranto.24 We see no countervailing considerations here. Accordingly,
Relator’s application for leave to sue in quo warranto is GRANTED.

                                           *****




   24
        98 Ops.Cal.Atty.Gen. 94, 101 (2015); 86 Ops.Cal.Atty.Gen. 82, 85 (2003).

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