California Court of Appeal, Atwell Island Water District, Docket No. F076043, Certified for Partial Publication

California Law

Elections Code

Definition of “Election”

State Holiday

Water Board

Election took place on January 17, 2017, which was the day after a state holiday. Per Elections Code section 1100, elections may not be held the day after a state holiday.

Attorney (Holiday)

Brown Act

Appeal from an order of the Superior Court of Tulare County.

Atwell Island Water District (AIWD) is a California water district located in Tulare County, California, and is governed by a five-member board of directors. There is currently a dispute concerning which persons are the true members of its board.

AIWD is both the appellant and respondent in this appeal; appellant is governed by the controllers of the first faction, while respondent is governed by the controllers of the second faction.

The Brown Act, which applies to local water districts, defines a “meeting” as “any congregation of a majority of the members of a legislative body at the same time and location ... to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” (Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198; Gov. Code, § 54952.2, subd. (a).) “ ‘Two or more persons are required in order to conduct a “meeting” within the meaning of the Brown Act.’ ” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 375–376.) Furthermore, the Brown Act defines “action taken” to mean “a collective decision made by a majority of the members of a legislative body ... or an actual vote by a majority of the members of a legislative body ....” (Gov. Code, § 54952.6.)

(…) The trial court reached the proper result in granting the motion to strike without leave to amend. Appellant’s pleadings allege the election took place on January 17, 2017, which was the day after a state holiday. Per Elections Code section 1100, elections may not be held the day after a state holiday. The election was void for being held on an improper day, and Pace and Cameron therefore were not duly elected to the AIWD board. It follows no quorum was present at the meeting at which the action was taken to hire Herr’s firm, and therefore Herr was not authorized to prepare, sign, or file the stricken pleadings on AIWD’s behalf.

(…) It did run afoul of Elections Code section 1100, which provides that “no election shall be held ... the day before, the day of, or the day after a state holiday.” Government Code section 19853 provides that the third Monday in January (which is Martin Luther King, Jr. Day) is a state holiday. “Election” is defined by the Elections Code to mean “any election” provided for under the Elections Code, which would include elections conducted pursuant to Elections Code section 4108, and therefore the Elections Code section 1100 prohibition would apply to the election in the instant case. We can find no exception allowing for an election conducted by all-mail ballot to be held the day after a state holiday.

Since the January 17, 2017 election was void, Pace and Cameron were not duly elected to AIWD’s board of directors. And since they were not duly elected, John Mitchell was the only valid director present at the meeting at which Herr’s firm was allegedly retained to serve as AIWD’s general counsel, but John Mitchell could not constitute a quorum by himself. Herr’s firm was not retained by a majority of AIWD’s board of directors, and therefore Herr was not authorized to prepare, sign, or file pleadings on AIWD’s behalf. The granting of the motion to strike was the correct ruling.


Cal. Judges Benchbook: Civil Proceedings Before Trial (2019).

(California Court of Appeal, February 24, 2020, Atwell Island Water District, Docket No. F076043, Certified for Partial Publication)