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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

XAVIER BECERRA
 

Attorney General
 

: 

OPINION : No. 17-305 

: 

of : November 2, 2017 

: 

XAVIER BECERRA : 

Attorney General : 

: 

ANYA M. BINSACCA : 

Deputy Attorney General : 

: 

Proposed relator the CITY OF BELL GARDENS has requested leave to sue 

proposed defendant JENNIFER RODRIGUEZ in quo warranto to oust her from the 

public office of city council member on the ground that she was absent from all regular 

city council meetings without permission for 60 days, thereby forfeiting her office under 

Government Code section 36513. 

CONCLUSION 

There are substantial questions of law and fact as to whether Rodriguez was absent 

from all regular city council meetings for 60 days, thereby forfeiting her office under 

Government Code section 36513. As a result, allowing the action to proceed would serve 

the public interest. Therefore, leave to sue in quo warranto is GRANTED. 

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ANALYSIS 

Standard for Approving a Quo Warranto Application 

Quo warranto is the form of action used to challenge whether a person is 

unlawfully holding a public office.

1 The process is authorized by Code of Civil 

Procedure section 803, which provides: “An action may be brought by the attorneygeneral, 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, civil or military, or any franchise, or against any 

corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or 

exercises any franchise, within this state.”2 

Where the quo warranto action is initiated “upon a complaint of a private party,”3 the 

Attorney General acts as a gatekeeper; the party must obtain the Attorney General’s 

1 Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1225; 76 

Ops.Cal.Atty.Gen. 157, 165 (1993) (quo warranto is the “appropriate remedy to test the 

right of a person to hold public office”). 

2 Code Civ. Proc., § 803. 

3 Code Civ. Proc., § 803. Even though section 803 references the “complaint of a 

private party,” public officers and public agencies, such as the City of Bell Gardens in 

this case, may also pursue a quo warranto application as a relator. (76 

Ops.Cal.Atty.Gen., supra , at pp. 162-163 [“We believe that a public official or agency 

may qualify as a relator under the provisions of section 803”]; see also 97 

Ops.Cal.Atty.Gen. 1, 1, fn. 4 (2014).) With respect to cities specifically, we note that city 

councils and the courts sitting in quo warranto have concurrent jurisdiction over 

questions of councilmember qualifications. We have previously observed that “[t]he 

primary authority for determining whether a vacancy exists in a councilman’s office is 

the city council itself under its power to fill a vacancy in a council seat, Gov. Code § 

36512, and to ‘judge the qualifications of its members,’ Gov. Code § 36812. 

[Citations.]” (41 Ops.Cal.Atty.Gen. 98, 100 (1963).) However, as we further observed, 

“[t]his power of the city council is not exclusive.” (Id.; see McGregor v. Board of 

Trustees of the Town of Burlingame (1911) 159 Cal. 441, 446-447; Klose v. Superior 

Court in and for San Mateo County (1950) 96 Cal.App.2d 913, 921-922.) Having 

determined there may be a substantial question whether one of its members is 

disqualified from further service on the council due to excessive absences, the city 

council here has elected to pursue a quo warranto adjudication in the first instance, as it is 

authorized to do under Code of Civil Procedure section 803. (97 Ops.Cal.Atty.Gen., 

supra, at p. 1, fn. 4; 76 Ops.Cal.Atty.Gen., supra, at pp. 162-163.) 

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permission before filing an action in superior court.4 

In evaluating whether to grant leave to sue, we do not endeavor to resolve the 

merits of the controversy, but rather “decide whether the application presents substantial 

issues of fact or law that warrant judicial resolution, and whether granting the application 

will serve the public interest.”5 

The Application Presents Substantial Questions of Law and Fact 

The City of Bell Gardens is a general law city, and thus derives its powers from 

the general statutes enacted by the Legislature.

6 Government Codes section 36513 

provides that, “If a city councilmember is absent without permission from all regular city 

council meetings for 60 days consecutively from the last regular meeting he or she 

attended, his or her office becomes vacant and shall be filled as any other vacancy.”7 The 

City alleges that Rodriguez was absent for a 60-day period, thereby vacating her seat. 

The City’s municipal code sets the regular meetings of the city council for the 

second and fourth Mondays of each month. The regular meetings during the 60-day 

period following the council’s July 25, 2016 meeting (i.e., July 26 through September 23, 

2016) took place on August 8, August 22, and September 12, 2016. The city council 

minutes from each of those meetings reflect that Rodriguez was absent.8 

Rodriguez does not dispute that she was absent from those meetings. Instead, she 

maintains that her absences were excused by the fact that her doctor had restricted her 

activity during at least part of that time. Rodriguez provides a doctor’s note saying that 

she was seen on July 25, 2016, that her activity is restricted, and that she may return to 

work or school on August 9, 2016. The City maintains that Rodriguez never requested 

permission to be absent from the August 8, August 22, or September 12, 2016 meetings. 

4 Nicolopulos v. City of Lawndale, supra, 91 Cal.App.4th at pp. 1228-1229. 

5 95 Ops.Cal.Atty.Gen. 50, 51 (2012). 

6 See City of Orange v. San Diego County Employees Retirement Assn. (2002) 103 

Cal.App.4th 45, 52. 

7 Gov. Code, § 36513, subd. (a). 

8 Council minutes also reflect that Rodriguez was absent from the two regular council 

meetings that occurred during the 60-day period between November 22, 2016 and 

January 21, 2017. 

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The meaning of “permission” to be absent from council meetings is not elucidated 

by Government Code section 36513, the City’s municipal code, or the case law. 

We think the scenario here raises substantial questions of law and fact as to 

whether Rodriguez vacated her council seat under Government Code section 36513. For 

example, can a doctor’s note excuse a city council member’s absence from a meeting? If 

so, when must that excuse be proffered? Does a city council have discretion to excuse a 

medical absence, or any absence? Questions such as these, as well as any factual 

disputes, may be addressed and resolved in a judicial proceeding. 

Judicial Resolution Serves the Public Interest 

“As a general rule, we view the need for judicial resolution of a substantial 

question of fact or law as a sufficient ‘public purpose’ to warrant the granting of leave to 

sue in quo warranto, absent countervailing circumstances such as pending litigation of the 

issues or shortness of the time remaining in the term of office.”9 We are not aware of any 

reason here to depart from our general rule. Both the City of Bell Gardens and the public 

have an interest in a judicial determination of whether council member Rodriguez 

vacated her city council seat by operation of law due to absence over a 60-day period. 

Accordingly, the application for leave to sue in quo warranto is GRANTED. 

***** 

9 95 Ops.Cal.Atty.Gen. 77, 87 (2012). 

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