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Pini v. Fenley

California Court of Appeals, Third District, Trinity

February 28, 2017

FIRENZA PINI, Plaintiff and Appellant,
v.
JOHN FENLEY, Defendant and Respondent.

         APPEAL from a judgment of the Superior Court of Trinity County, No. 16CV068 Elizabeth W. Johnson, Judge. Reversed with directions.

          Benbrook Law Group, Bradley A. Benbrook and Stephen M. Duvernay for Plaintiff and Appellant.

          Churchwell White, Steven G. Churchwell, Barbara A. Brenner, and Nubia I. Goldstein for Defendant and Respondent.

          NICHOLSON, Acting P. J.

         Defendant John Fenley was elected to the Trinity County Board of Supervisors by obtaining a majority of votes in the June 7, 2016 election. Contestant Firenza Pini filed a contest in the superior court 20 days after certification of the final canvass, alleging mistakes, errors, and misconduct in counting the ballots. The superior court, treating the contest as involving a primary election, summarily dismissed the contest because it was filed more than five days after certification of the final canvass. We reverse. Because Fenley was elected by a majority of votes, and not merely nominated, Pini had 30 days after certification of the final canvass to file her contest.

         BACKGROUND

         John Fenley ran for the District 5, Trinity County Board of Supervisors seat on June 7, 2016. According to the official canvass, Fenley received 380 votes, which was 28 more votes than his opponent. Having received a majority of votes cast in the June election, the “body canvassing the returns” declared Fenley the winner on June 27, 2016, without a runoff. The official canvass was certified on July 6, 2016.

         Pini, representing herself and acting as an elector in the supervisorial district, filed a verified statement of election contest on July 26, 2016. She cited sections 16400, 16401, subdivision (d), and 16460 of the Elections Code and alleged that there was “mistake, error or misconduct in the counting of the ballots in the elections” because (1) “[u]p to 110 ‘vote-by-mail' and/or provisional ballots received by the Registrar of Voters were not processed and counted and should have been processed and counted in the contested election, ” (2) “[a]n unknown number of ballots[] of qualified, ‘permanent vote-by-mail voters' were not processed and[/]or counted, ” (3) “the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected by denying adequate observation and right to list of vote-by[-]mail ballots and provisional ballot electors in order to effect a challenge by the observers and representatives of candidates, ” and (4) “there was an error in the vote-counting programs or summation of ballot counts due to changed programs of some voter machines after publicly interrogating voter machines.”

         The verified statement of election contest did not state a remedy sought. Instead, it concluded: “For the foregoing reasons, Contestant Firenza Pini alleges that mistake, error or misconduct has occurred in the counting of the ballots in the election which were so incorrectly counted as to change the result of the election, and, if counted, the number of legal votes case for Contestant [sic] will exceed the number of legal votes for Defendant [Fenley] in said election.” (Pini is the contestant in this action, but she was not Fenley's opponent in the election.)

         On August 1, 2016, six days after the filing of the verified statement of election contest, the superior court, on its own motion, summarily dismissed the election contest. The court determined that, because the June 2016 vote was a primary election, the deadline for filing a statement of election contest was five days after certification of the final canvass by the Board of Supervisors, which occurred on July 6, 2016, according to the trial court. (The July 6 certification was not mentioned in the verified statement of election contest.) (Elec. Code, § 16421.) Since Pini's statement was filed after the statutory deadline, her statement was too late.

         Pini requested reconsideration, arguing that a primary election is transmuted into a general election if a candidate obtains a majority of the vote. The trial court denied the request.

         Pini, now represented by legal counsel, appeals. She moved for “summary reversal” of the trial court's order, which motion we denied. However, we granted calendar preference.

         DISCUSSION

         In her opening brief on appeal, Pini argues the trial court erred by relying on the five-day deadline for contesting primary elections. (See Elec. Code, § 16421 [five-day deadline for contesting primary elections].) She asserts that, because Fenley obtained a majority of votes in the official canvass and was declared the winner without a runoff, the election was transmuted into a general election, for which there is a 30-day deadline. (See Elec. Code, § 16401, subd. (d) [30-day deadline for contesting general elections]; Cummings v. Stanley (2009) 177 Cal.App.4th 493, 510-514 (Cummings) [deadline for contesting general election applies when electing rather than nominating]; McClintock v. Abel (1937) 21 Cal.App.2d 11, 13 (McClintock) [same].)

         In his respondent's brief, Fenley argues that, regardless of whether this was a primary or general election, any contest seeking a recount had to be filed within five days after the results were certified, under Elections Code section 16462. Fenley apparently abandons the distinction made by the trial court between contests to primary elections (Elec. Code, § 16421 [five-day deadline]) and general elections (Elec. Code, § 16401, subd. (d) [30-day deadline]) and relies instead on the deadline in the recount statute (Elec. Code, § 16462).

         In her reply brief, Pini argues that the recount statute cited by Fenley (Elec. Code, § 16462) applies only to primary elections. Or, in the alternative, that statute does not apply because Pini's statement did not request a recount.

         We conclude: (1) Fenley's election was a general election under Cummings and McClintock, not a primary election, and (2) Elections Code section 16462, with its five-day deadline for contesting an election, applies only to primary elections. Therefore, the 30-day deadline in Elections Code section 16401, subdivision (d) applies to this case.

         I

         General Election v. ...


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