Filed 12/16/14 Martinez v. City of Watsonville CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

EMILIO MARTINEZ et al.,

Plaintiffs and Appellants,

v.

CITY OF WATSONVILLE et al.,

Defendants and Respondents.

 No. H038230

 (Santa Cruz County

 Super. Ct. No. CV169473)

 

The City of Watsonville’s City Charter (the City Charter) relies on the definition 

of vacancy in Government Code section 1770.

1

 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.
2

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 

resignation will go into effect upon the appointment of a successor.”

2

 (Stats. 2014, 

ch. 725, § 2.) 

 

2

Watsonville elects its city council members by district.
3

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 
4

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
5

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 
6

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 postamendment 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.
7

_______________________________

Mihara, J., Acting P. J.

WE CONCUR:

_____________________________

Márquez, J.

_____________________________

Grover, J.