TOWN OF APPLE VALLEY,
Plaintiff and Appellant,
v.
APPLE VALLEY RANCHOS WATER et al.,
Defendants and Respondents.

S289391

Fourth Appellate District, Division Two
E078348

San Bernardino County Superior Court
CIVDS1600180

August 24, 2026

Justice Kruger authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Liu, Groban, Evans,
and Langhorne Wilson* concurred.

*
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS
WATER
S289391

Opinion of the Court by Kruger, J.

Under California’s Eminent Domain Law (Code Civ. Proc.,
§ 1230.010 et seq.), a public entity’s right to take private
property for public use depends, broadly speaking, on whether
the taking is necessary to serve the public interest. As a general
rule, public necessity is a matter for the public entity to decide,
subject to limited judicial review: Ordinarily, when a public
entity has adopted the statutorily required “resolution of
necessity,” the relevant public necessity requirements are
“conclusively establishe[d]” unless a court finds that the public
entity has grossly abused its discretion in adopting the
resolution. (Id., §§ 1245.250, subd. (a), 1245.255, subd. (b).)
In 1992, however, the Legislature created special rules for
the taking of privately owned public utility property. Under
those rules, even after adopting a resolution of necessity, a
public entity’s decision to take over a privately owned electric,
gas, or water public utility does not conclusively establish the
propriety of the taking, but merely creates a “rebuttable
presumption” that the statutory requirements for taking the
property are met. (Code Civ. Proc., § 1245.250, subd. (b), added
by Stats. 1992, ch. 812, § 3, p. 3846; see id., § 1240.650, subd.
(c), added by Stats. 1992, ch. 812, § 2, p. 3846.)
The question in this case is what these special rules mean
for judicial review of a public entity’s decision to take property

1
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

belonging to a privately owned public utility. The Town of Apple
Valley, which seeks to take over a privately owned water utility,
argues that its decision to take the utility is subject to the usual
standard governing judicial review of a resolution of necessity —
meaning, in effect, that the court can disallow the taking only if
it concludes that the Town has grossly abused its discretion.
The Court of Appeal accepted this argument. We do not.
The Town’s argument for gross abuse of discretion review
cannot be squared with the 1992 amendments, which make the
Town’s resolution rebuttable, rather than conclusive, on the
critical question of whether public necessity requires the taking
of the utility’s property. To evaluate a challenge to the taking
of privately owned public utility property, the trial court, sitting
as trier of fact, must exercise its independent judgment to
determine whether the utility owner challenging the taking has
rebutted the relevant presumptions and has thus established by
a preponderance of the evidence that the taking is not
authorized by the Eminent Domain Law.
We reverse the judgment of the Court of Appeal and
remand for further proceedings.
I.
A.
In California, the power of eminent domain is governed by
a set of statutory rules dating back to 1872, when the
Legislature enacted a comprehensive Code of Civil Procedure
that included a “new and valuable” “Title on Eminent Domain.”
(1 Ann. Code Civ. Proc. (1st ed. 1872, Haymond & Burch,
commrs.-annotators) preface, p. vi.) The current Eminent
Domain Law, which was enacted a century later (Code Civ.
Proc., § 1230.010 et seq., added by Stats. 1975, ch. 1275, § 2, p.

2
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

3410), extensively revised California’s eminent domain statutes
“ ‘to cover, in a comprehensive manner, all aspects of
condemnation law and procedure’ and to produce ‘a modern
Eminent Domain Law within the existing California statutory
framework.’ ” (City of Oakland v. Oakland Raiders (1982) 32
Cal.3d 60, 65, quoting Eminent Domain Law, 13 Cal. Law
Revision Com. Rep. (1975) pp. 1010–1011.)
Like its historic precursor, the current Eminent Domain
Law permits public entities to exercise the power of eminent
domain “to acquire property only for a public use.” (Code Civ.
Proc., § 1240.010.) A public entity seeking to condemn property
by eminent domain must make certain substantive showings.
In all cases, the condemning entity must establish that “[t]he
public interest and necessity require the project” in question
(id., § 1240.030, subd. (a)); that “[t]he project is planned or
located in the manner that will be most compatible with the
greatest public good and the least private injury” (id.,
§ 1240.030, subd. (b)); and that “[t]he property sought to be
acquired is necessary for the project” (id., § 1240.030, subd. (c)).
These three required showings are commonly referred to as
“ ‘the public necessity elements.’ ” (SFPP v. Burlington
Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 468;
Town of Apple Valley v. Apple Valley Ranchos Water (2025) 108
Cal.App.5th 62, 74 (Apple Valley).) In addition, if the targeted
property is already in public use, the public entity must
establish a fourth element — that “the use for which the
property is sought to be taken is a more necessary public use
than the use to which the property is appropriated.” (Code Civ.
Proc., § 1240.610.) This element has been referred to as the
“ ‘more necessary public use’ ” element. (Apple Valley, at p. 73.)

3
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

The public entity must also satisfy certain procedural
requirements, including the “adopt[ion] [of] a resolution of
necessity.” (Code Civ. Proc., § 1240.040.) The adoption of a valid
resolution of necessity is a prerequisite to “commenc[ing] an
eminent domain proceeding.” (Id., § 1245.220.) In addition to
other requirements, the resolution must contain “[a] declaration
that the governing body of the public entity has found and
determined each” of the public necessity elements to be true.
(Id., § 1245.230, subd. (c).) When the property is already in
public use, there is no comparable requirement to explicitly
state that the condemning entity has found the “more necessary
public use” element to be true, but the resolution must “refer
specifically” to section 1240.610, which sets out that
requirement. (Id., § 1240.610.)
Before adopting a resolution of necessity, the public entity
must “give[] each person whose property is to be acquired by
eminent domain . . . notice and a reasonable opportunity to
appear and be heard on the matters referred to in Section
1240.030” — that is, the public necessity elements. (Code Civ.
Proc., § 1245.235.) The resolution must state that the public
entity made an offer to purchase the property, or that “the owner
cannot be located with reasonable diligence” (id., § 1245.230,
subd. (c)(4)), and must be approved “by a vote of two-thirds of all
the members of the governing body of the public entity” (id.,
§ 1245.240). After adopting a resolution, the public entity may
initiate the eminent domain proceeding by filing a complaint in
court. (Id., § 1250.110.)
Generally a validly adopted resolution of necessity is all
that is required to justify the proposed taking. Code of Civil
Procedure section 1245.250 (section 1245.250) provides that a
resolution “conclusively establishes the matters referred to in
4
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

Section 1240.030,” i.e., the three public necessity elements.
(§ 1245.250, subd. (a); see id., § 1240.030.) Code of Civil
Procedure section 1240.650 (section 1240.650) contains an
analogous instruction concerning the more necessary public use
element, although the instruction is not, in terms, keyed to the
adoption of a valid resolution of necessity: It provides that
“[w]here property has been appropriated to a public use by any
person other than a public entity, the use thereof by a public
entity for the same use or any other public use is a more
necessary use . . . .” (Id., subd. (a).)
There are, however, exceptions to the general rule treating
a resolution of necessity as conclusive. One long-standing
exception, included in the Eminent Domain Law as a
continuation of prior, pre-1975 law, applies to extraterritorial
takings by a local public entity — that is, takings where “the
property described in the resolution is not located entirely
within the boundaries of the local public entity.” (§ 1245.250,
subd. (c) (section 1245.250(c)); see Stats. 1975, ch. 1275, § 2, p.
3425; Sen. Legis. Com. com., 19 West’s Ann. Code Civ. Proc.
(2007 ed.) foll. § 1245.250, p. 431 [1975 Addition].) In this
scenario, “the resolution of necessity creates a presumption that
the matters referred to in Section 1240.030 are true,” which “is
a presumption affecting the burden of producing evidence.”
(§ 1245.250(c).)
Another exception, first enacted as part of the Eminent
Domain Law in 1975, provides that when the state (as opposed
to other public entities) seeks to appropriate property that is
already in public use “for the same use or any other public use,”
the state’s appropriation, rather than conclusively establishing
the more necessary public use element, instead creates a
presumption of a more necessary public use, which is a
5
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

“presumption[] affecting the burden of proof.” (Code Civ. Proc.,
§ 1240.640 (section 1240.640); see Stats. 1975, ch. 1275, § 2, p.
3419.) The legislative committee commentary accompanying
this provision explains that “unlike prior law, the presumptions
of this section are made rebuttable rather than absolute.” (Sen.
Legis. Com. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll.
§ 1240.640, p. 390 [1975 Addition].)
In 1992, the Legislature added a set of provisions specific
to the taking of privately owned public utility property. (Stats.
1992, ch. 812, §§ 2–3, p. 3846 (Sen. Bill. No. 1757 (1991–1992
Reg. Sess.)) (Senate Bill No. 1757).) Using language essentially
identical to the language of section 1240.640, the first of these
public utility provisions states that “[i]f the taking is by a local
public entity . . . and the property is electric, gas, or water public
utility property, the resolution of necessity creates a rebuttable
presumption that the matters referred to in Section 1240.030
are true. This presumption is a presumption affecting the
burden of proof.” (§ 1245.250, subd. (b) (section 1245.250(b)), as
amended by Stats. 1992, ch. 812, § 3, p. 3846.) A second
provision created a parallel presumption regarding the “more
necessary use” element: if the property “is electric, gas, or water
public utility property which the public entity intends to put to
the same use, the presumption of a more necessary use
established by subdivision (a) is a rebuttable presumption
affecting the burden of proof.” (§ 1240.650, subd. (c)
(section 1240.650(c)), as amended by Stats. 1992, ch. 812, § 2, p.
3846.) For ease of reference, we refer to these rebuttable
presumptions as the “utility presumptions.”
In all cases, the Eminent Domain Law permits a property
owner to challenge a resolution of necessity in court. (Code Civ.
Proc., § 1245.255 (section 1245.255), subd. (a).) This was not
6
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

always the case; “[p]rior to the enactment of the 1975 eminent
domain law, a resolution of necessity could not be collaterally
attacked.” (Anaheim Redevelopment Agency v. Dusek (1987) 193
Cal.App.3d 249, 254 (Dusek).) But section 1245.255 now
delineates two pathways for challenging a resolution of
necessity. “Before the commencement of the eminent domain
proceeding,” an owner may challenge a resolution “by petition
for a writ of mandate pursuant to [Code of Civil Procedure]
Section 1085.” (§ 1245.255, subd. (a)(1).) Otherwise, a challenge
may be raised “[a]fter the commencement of the eminent domain
proceeding, by objection to the right to take pursuant to this
title.” (§ 1245.255, subd. (a)(2).) Section 1245.255 further
provides that a resolution “does not have the effect prescribed in
Section 1245.250” — meaning that the resolution does not give
rise to either a conclusive or a rebuttable presumption of public
necessity — “to the extent that its adoption or contents were
influenced or affected by gross abuse of discretion by the
governing body.” (§ 1245.255, subd. (b) (section 1245.255(b));
see also § 1245.250.)
For purposes of challenging a resolution of necessity, the
Courts of Appeal have held that “ ‘a gross abuse of discretion
may be shown by a lack of substantial evidence supporting the
resolution of necessity’ ” (City of Saratoga v. Hinz (2004) 115
Cal.App.4th 1202, 1221 (Hinz); see Sen. Legis. Com. com., 19
West’s Ann. Code Civ. Proc. (2007 ed.) foll. § 1245.255, p. 435
[1975 Addition]); or, alternatively, by demonstrating that the
adoption of the resolution “was arbitrary, capricious, or
. . . [that] the governing body failed to follow the mandated
procedure, or . . . was irrevocably committed to taking the
property regardless of the evidence presented at the resolution
of necessity hearing” (Council of San Benito County

7
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

Governments v. Hollister Inn, Inc. (2012) 209 Cal.App.4th 473,
485).
The Eminent Domain Law contains a separate set of
provisions permitting defendants in an eminent domain
proceeding to challenge the public entity’s right to take their
property. Code of Civil Procedure section 1250.350 explains how
and on what grounds an owner can object “to the plaintiff’s right
to take.” Section 1250.360 lists objections that are available
“regardless of whether” the public entity has adopted a valid
resolution of necessity, including that the taking is not for a
more necessary public use. (Id., § 1250.360, subd. (f).) Section
1250.370 provides additional grounds “where the plaintiff has
not adopted a resolution of necessity that conclusively
establishes” the public necessity elements (id., § 1250.370, citing
id., § 1240.030), and allows the owner to dispute those elements
(id., § 1250.370, subds. (b)–(d).) Courts are required to “hear
and determine all objections to the right to take” (id.,
§ 1260.120, subd. (a)), and “may, on motion of any party, after
notice and hearing, specially set such objections for trial” (id.,
§ 1260.110, subd. (b)).
B
The Town of Apple Valley is served by a water system
operated by a private water utility. In December 2010, the then-
owner of the water system, defendant Apple Valley Ranchos
Water Company (Water Company), was sold to an investment
fund, Carlyle Infrastructure Partners, which implemented
significant price increases. In response, the Town began to
consider taking over the water system.
In November 2015, the Town approved two resolutions of
necessity. One resolution covered the portion of the system

8
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

within the Town’s boundaries, and the other covered small
portions of the system outside those boundaries. The
resolutions described the Town’s project as “the public
ownership, operation and maintenance of the Apple Valley
Water System to provide water service to the public.” Not long
after issuing the resolutions, the Town filed an eminent domain
complaint against the Water Company.
In the meantime, defendant Liberty Utilities had acquired
the Water Company from Carlyle. In its answer to the eminent
domain complaint, Liberty objected to the taking under Code of
Civil Procedure sections 1250.360 and 1250.370, arguing that
the public necessity and more necessary public use elements
were not met. Liberty did not challenge the validity of the
resolutions of necessity. It instead argued that the resolutions
“do not conclusively establish the elements of necessity” and
only “creates a rebuttable presumption” because they target
public utility property.1
Before trial, the parties litigated what the trial court
termed the “standard of review” applicable to the rebuttable
presumptions for a taking of utility property. (§§ 1245.250(b),
1240.650(c).) The Town argued that the court’s review of
Liberty’s objections was governed by the gross abuse of
discretion standard in section 1245.255(b). Liberty argued that
this standard did not apply because a trial court’s role is to
decide the existence of the four elements in the first instance, as
the trier of fact, and that its burden as defendant was to

1
In the case of the resolution targeting areas outside the
limits of the Town’s boundaries, Liberty also argued that the
resolution created only a rebuttable presumption because it
involved an extraterritorial taking.

9
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

disprove any of the elements by a preponderance of the evidence.
The trial court agreed with Liberty, concluding that under the
special rules for public utility takings added by the 1992
amendments to the Eminent Domain Law, the public necessity
and more necessary public use elements “are to be decided by
the court when put in issue by a public utility’s objection to the
agency’s right to take.” The court explained that, as a result of
the 1992 amendments, a utility owner disputing the existence of
the public necessity elements could either (1) invalidate the
resolution of necessity by showing an abuse of discretion, or (2)
object directly under Code of Civil Procedure section 1250.370 to
the existence of an element, in which case the owner’s burden is
to disprove the element by a preponderance of the evidence.
Following a 67-day bench trial, the trial court found that
the Town did not have the right to acquire the water system and
entered judgment for Liberty. After making extensive findings
about Liberty’s track record in managing the water system and
the risks of management by the Town, the court explained that
Liberty had overcome the rebuttable presumptions and
disproven two of the public necessity elements as well as the
more necessary public use element.
The Court of Appeal reversed. (Apple Valley, supra, 108
Cal.App.5th at p. 83.) The court concluded that the trial court
erred in failing to apply a gross abuse of discretion standard and
thus failing “to give the appropriate deference” to the Town’s
decisions and findings. (Id. at p. 71.) Under the proper
standard, the court reasoned, “ ‘the [public entity’s] findings are
presumed procedurally valid and presumed supported by
substantial evidence, and a private utility must convince the
trial court, using evidence outside the administrative record if
necessary, that the resolution is procedurally invalid or that the
10
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

[public entity’s] findings are not supported by substantial
evidence.’ ” (Id. at p. 89.)
The Court of Appeal went on to conclude that, “regardless
of what standard of review applies, the trial court made a series
of related errors in applying the rebuttable presumption to the
evidence that the court deemed relevant and admissible.”
(Apple Valley, supra, 108 Cal.App.5th at p. 90.) Among other
things, the court concluded that the trial court erroneously
allowed Liberty to rebut the resolutions using evidence of post-
resolution facts and developments not pleaded in its answer to
the eminent domain complaint. (Id. at pp. 92–94.) The court
remanded with instructions for the trial court to determine what
further proceedings were warranted on remand. (Ibid.)
The Court of Appeal’s decision in this case expressly
parted company with the then-recent decision in Pacific Gas &
Electric Co. v. Superior Court (2023) 95 Cal.App.5th 819
(PG&E), which raised a similar set of issues. In that case, the
South San Joaquin Irrigation District adopted a resolution of
necessity and filed an eminent domain action to take the part of
PG&E’s electric grid within the irrigation district’s boundaries.
(Id., at pp. 826–827.) PG&E objected to the taking on the
grounds that the public necessity and more necessary public use
elements were not established. (Id. at p. 827; see Code Civ.
Proc., §§ 1250.360, 1250.370.) The trial court characterized this
challenge as one to the validity of the resolution and concluded
that PG&E had “ ‘to show that the District committed a gross
abuse of discretion in adopting the Resolution.’ ” (PG&E, at pp.
827–828.) The Court of Appeal disagreed, reasoning that PG&E
was not challenging the validity of the resolution and thus was
not required to demonstrate a gross abuse of discretion in its
adoption. (Id. at pp. 833, 837.) Instead, because PG&E was
11
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

challenging the irrigation district’s right to take under Code of
Civil Procedure sections 1250.360 and 1250.370, its burden was
to disprove one of the elements by a preponderance of the
evidence. (PG&E, at p. 832.)
We granted review to resolve the conflict between PG&E
and the Court of Appeal’s decision in this case concerning the
standard a trial court should apply in adjudicating a private
utility owner’s challenge to a public entity’s right to take its
property.
II.
A.
The issue before us presents a question of statutory
interpretation, which we consider de novo. (People v. Walker
(2024) 16 Cal.5th 1024, 1032.) “ ‘ “ ‘ “We first examine the
statutory language, giving it a plain and commonsense
meaning. . . . If the language is clear, courts must generally
follow its plain meaning.” ’ ” ’ ” (Raines v. U.S. Healthworks
Medical Group (2023) 15 Cal.5th 268, 278–279.) The plain
meaning of the statute supplies a clear answer to the question
presented.
We observe at the outset that nothing in the plain
language of the statute supports the Town’s argument for
applying a gross abuse of discretion standard to a challenge to
the taking of public utility property. The gross abuse of
discretion standard is set forth in section 1245.255, which
applies to challenges to the validity of a resolution of necessity.
(§ 1245.255, subds. (a) [detailing how “[a] person having an
interest in the property described in a resolution of
necessity . . . may obtain judicial review of the validity of the
resolution” (italics added)], (b) [“A resolution of necessity does

12
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

not have the effect prescribed in Section 1245.250” — which is
to say, it does not “conclusively establish[]” (§ 1245.250, subd.
(a)) the requisite public necessity for the taking of private
property — “to the extent that its adoption or contents were
influenced or affected by gross abuse of discretion by the
governing body” (§ 1245.255(b)].) Nothing in section 1245.255
purports to extend the gross abuse of discretion standard to the
kind of challenge Liberty brings here, which aims at the Town’s
right to take its property rather than its adoption of a resolution
of necessity.
Although the Town does not seriously dispute this point,
it contends that the gross abuse of discretion standard still
should apply because any challenge to a public entity’s right to
take private property necessarily aims at the validity of its
resolution of necessity. The plain terms of the statute refute the
argument; a challenge to the right to take is distinct from, and
does not necessarily depend on, an objection to the resolution of
necessity.
This basic point tends to be obscured in day-to-day
practice because the typical eminent domain case involves an
intraterritorial taking in which the resolution of necessity
conclusively establishes the substantive public necessity
elements, leaving challengers with no choice but to attack the
resolution of necessity under the gross abuse of discretion
standard. But while the adoption of a resolution of necessity is
a prerequisite to condemnation by a public entity (Code Civ.
Proc., §§ 1245.220, 1240.040), the statute makes clear that a
resolution of necessity is not the only possible focus of a
challenge to a proposed condemnation. A property owner may
also challenge the public entity’s right to take the property in
question on the basis that the substantive statutory
13
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

requirements for a taking — i.e., the public necessity
elements — have not been satisfied. (Id., §§ 1250.360,
1250.370.)
As noted above, challenges to the right to take are
governed by different provisions from challenges to a resolution
of necessity. Section 1245.255, which sets out the gross abuse of
discretion standard, is located in chapter 4, titled
“Precondemnation Activities,” and article 2, titled “Resolution of
Necessity,” of the Eminent Domain Law. But the provisions
detailing the grounds on which an owner may object to the right
to take are all housed in a different part of the Eminent Domain
Law, in chapter 5, titled “Commencement of Proceeding,” article
5, titled “Objections to Right to Take.” (See Code Civ. Proc.,
§§ 1250.350–1250.370.) The primary provision governing
objections to the right to take is section 1250.350, which
provides: “A defendant may object to the plaintiff’s right to
take . . . on any ground authorized by Section 1250.360 or
Section 1250.370.” (Code Civ. Proc., § 1250.350.) The cited
sections authorize grounds for objection not aimed at the
resolution of necessity. Section 1250.360 lists “[g]rounds for
objection to the right to take, regardless of whether the plaintiff
has adopted a resolution of necessity that satisfies the
requirements of Article 2 . . . of Chapter 4,” including that the
taking does not satisfy the more necessary public use element.
(Id., § 1250.360, subd. (f), italics added.) Section 1250.370
provides additional grounds “where the plaintiff has not adopted
a resolution of necessity that conclusively establishes the
matters referred to in Section 1240.030,” and allows the owner
to challenge the existence of the Code of Civil Procedure section
1240.030 public necessity elements. (Id., § 1250.370, subds. (b)–
(d), italics added.)

14
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

In the context of proposed utility takings like the one in
this case, these provisions allow a utility owner to challenge the
rebuttable presumptions created by sections 1245.250 and
1240.650 without challenging the validity of any underlying
resolution of necessity. That is because a resolution targeted at
utility property only gives rise to a rebuttable presumption
(§ 1245.250(b)) and thus permits the objections available under
Code of Civil Procedure section 1250.370 “where the plaintiff
has not adopted a resolution of necessity that conclusively
establishes” the public necessity elements.
And the presumption of a more necessary public use
(§ 1240.650(c)) may be objected to “regardless of whether the
plaintiff has adopted” a valid resolution of necessity. (Code Civ.
Proc., § 1250.360, subd. (f).) Indeed, it could hardly be
otherwise, as this presumption is not triggered by the adoption
of a resolution, and instead applies by operation of statute
whenever a public entity seeks to take utility property or other
property already dedicated to public use. (§ 1240.650, subds. (a),
(c); see also Code Civ. Proc., § 1240.610 [stating that where a
condemnor seeks to take property appropriated to public use
“the complaint, and the resolution of necessity if one is required,
shall refer specifically to this section” (italics added)].) In other
words, at least for a privately owned public utility, the road to
successfully challenging the condemnation of its property need
not run through section 1245.255.
Of course, determining that the gross abuse of discretion
standard does not, in terms, apply to Liberty’s objections does
not tell us what standard does apply. And the Eminent Domain
Law does not expressly specify. But it does provide that the
utility presumptions are both “presumption[s] affecting the
burden of proof” on the questions of public necessity and more
15
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

necessary use. (§§ 1245.250(b), 1240.650(c).) Naturally
understood, the reference to a “burden of proof” in an eminent
domain proceeding suggests a proceeding in which the trial
court will act as a finder of the relevant facts to be proved, rather
than merely reviewing the regularity of a public entity’s
findings. And under the Evidence Code, “[e]xcept as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence.” (Evid. Code, § 115.) This is the
default rule in every kind of civil proceeding. (Id., § 300 [“Except
as otherwise provided by statute, this code applies in every
action before the Supreme Court or a court of appeal or superior
court”]; see, e.g., Guardianship of Saul H. (2022) 13 Cal.5th 827,
842 [“[P]reponderance of the evidence is the default burden of
proof for findings of fact in civil cases”].) And the Eminent
Domain Law explicitly states that eminent domain proceedings
are ordinarily subject to the same rules as other civil actions.
(Code Civ. Proc., § 1230.040 [“Except as otherwise provided in
this title, the rules of practice that govern civil actions generally
are the rules of practice for eminent domain proceedings”].) The
preponderance of the evidence standard is also supported by
Evidence Code section 606, which describes how a presumption
affecting the burden of proof operates: “The effect of a
presumption affecting the burden of proof is to impose upon the
party against whom it operates the burden of proof as to the
nonexistence of the presumed fact.” The commentary to this
provision explains that “[i]n the ordinary case, the party against
whom it is invoked will have the burden of proving the
nonexistence of the presumed fact by a preponderance of the
evidence.” (Cal. Law Revision Com. com., 29B pt. 2A West’s
Ann. Evid. Code (2019 ed.) foll. § 606, p. 81 [1965 Addition].)

16
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

Thus, absent statutory indications to the contrary, it
follows from the creation of the rebuttable presumptions in
sections 1245.250(b) and 1240.650(c) that the questions of public
necessity and more necessary public use are factual questions to
be resolved by the trial court, as the trier of fact, under a
preponderance of the evidence standard. The burden of rebuttal
falls on the party seeking to challenge the condemnation.
B.
This straightforward understanding of the rebuttable
presumptions created by the 1992 amendments is bolstered by
considering the similar rebuttable presumption for
extraterritorial takings.2 (See Prang v. Los Angeles County
Assessment Appeals Bd. (2024) 15 Cal.5th 1152, 1170 [In
interpreting statutory language, “ ‘[w]e consider the ordinary
meaning of the relevant terms, related provisions, terms used in
other parts of the statute, and the structure of the statutory
scheme’ ”].)
Since well before the 1992 amendments, the Eminent
Domain Law has provided that where a public entity seeks to
take property outside of its boundaries, “the resolution of

2
As previously noted, the Eminent Domain Law also
contains another rebuttable presumption where the state seeks
to appropriate property in public use “for the same use or any
other public use.” (§ 1240.640, subd. (a).) This section bears a
particularly close resemblance to section 1245.250(b), as both
create rebuttable presumptions “affecting the burden of proof.”
(§§ 1240.640, 1245.250(b).) But while there is a substantial
body of case law interpreting the extraterritorial exception,
there does not appear to be any case law interpreting section
1240.640. The parties thus naturally focus on the
extraterritorial exception rather than section 1240.640, and we
do the same.

17
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

necessity creates a presumption that the matters referred to in
Section 1240.030 are true,” which “is a presumption affecting
the burden of producing evidence.” (§ 1245.250(c); see Sen.
Legis. Com. com., 19 West’s Ann. Code Civ. Proc. (2007 ed.) foll.
§ 1245.250, p. 431 [1975 Addition]; see Stats. 1913, ch. 293, § 1,
pp. 549–550.) This provision now neighbors the provision
establishing a rebuttable presumption of public necessity for
utility takings. (§ 1245.250(b).)
By the time of the 1992 amendments, the Courts of Appeal
had long held, in addressing extraterritorial takings: (1) that a
rebuttable presumption can be overcome without challenging
the underlying resolution of necessity, and (2) that the trial
court, as trier of fact, independently assesses whether the
required elements are established. (See San Bernardino County
Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 898
[“the end result is the same whether (1) the Resolution of
Necessity is successfully challenged . . . or (2) the presumption
of truth created by” a valid resolution “is overcome by the
introduction of contradicting evidence at trial”]; City of Carlsbad
v. Wight (1963) 221 Cal.App.2d 756, 761 (Wight) [explaining that
Code Civ. Proc. former § 1241, a predecessor to § 1245.250
“limits the power of the condemning agency when the proposed
taking is outside its territorial limits” and that “it devolves upon
the courts to determine whether the taking of the particular
land is necessary”]; City of Los Angeles v. Keck (1971) 14
Cal.App.3d 920, 925 (Keck) [explaining that former § 1241 “has
specifically provided that the courts shall pass upon” an
extraterritorial taking]; cf. City of Oakland v. Superior Court
(1983) 150 Cal.App.3d 267, 279 [explaining that because “[t]he
extraterritorial exception is inapplicable” and the resolution
was not influenced by a gross abuse of discretion or the result of

18
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

bribery, “the trial court was foreclosed from inquiring into” the
public necessity elements].)
The Legislature that enacted the 1992 amendments is
presumed to have been aware of how courts had implemented
the rebuttable presumption in the extraterritorial takings
context. (E.g., Belridge Farms v. Agricultural Labor Relations
Bd. (1978) 21 Cal.3d 551, 557 [“ ‘[W]hen legislation has been
judicially construed and a subsequent statute on the same or an
analogous subject is framed in identical language, it will
ordinarily be presumed that the Legislature intended that the
language as used in the later enactment would be given a like
interpretation.’ ”]. The enactment of a parallel rebuttable
presumption in an adjacent subdivision of section 1245.250
naturally suggests the Legislature contemplated a similar
approach.
The Town argues that because the two presumption
provisions use different language, the Legislature must have
intended for trial courts to apply different standards. We
disagree. It is true that the provisions are not precisely
identical: the section 1245.250(c) presumption affects the
burden of production, while section 1245.250(b) affects the
burden of persuasion. But they are alike in the way that
matters: because both are rebuttable, both lack conclusive
effect. (See Evid. Code, § 601 [presumptions are either
conclusive or rebuttable]; compare § 1245.250, subd. (a) [a
resolution of necessity ordinarily “conclusively establishes” the
public necessity elements].) Accordingly, both permit
challenges to the right to take based on the nonexistence of the
public necessity elements. (See id., § 1250.370 [providing
“grounds for objection . . . where the plaintiff has not adopted a
resolution of necessity that conclusively establishes the matters
19
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

referred to in Section 1240.030”].) And ordinarily, under both
types of presumptions, the trial court independently reviews the
evidence to determine whether, as a matter of fact, the relevant
propositions have been established. (See Evid. Code, §§ 604 [if
presumption affecting burden of producing evidence is rebutted,
“the trier of fact shall determine the existence or nonexistence of
the presumed fact from the evidence and without regard to the
presumption” (italics added)], 115 [“ ‘Burden of proof’ means the
obligation of a party to establish by evidence a requisite degree
of belief concerning a fact in the mind of the trier of fact or the
court” and “[e]xcept as otherwise provided by law . . . requires
proof by a preponderance of the evidence” (italics added)].) The
inference therefore holds: When the Legislature enacted a
rebuttable presumption for utility takings, it presumably
contemplated that courts would apply the same standard they
have long applied in adjudicating the rebuttable presumption
applicable to extraterritorial takings.
C.
Given the clarity of the statutory text, we see no genuine
ambiguity about the question before us: The gross abuse of
discretion standard of review does not apply to Liberty’s
challenge to the Town’s right to take the water utility. But to
the extent the text leaves any possible doubt, we note that our
reading of the statutes is also consistent with the legislative
history of the 1992 amendments.3

3
We grant the request for judicial notice filed on July 3,
2025, by Liberty; the request for judicial notice filed on January
21, 2026, by amicus curiae Golden State Water Company; and
the request for judicial notice filed on January 21, 2026, by
amicus curiae California-American Water Company.

20
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

The legislative history of Senate Bill No. 1757, which was
eventually enacted into law in the 1992 amendments (Stats.
1992, ch. 812), confirms that the bill’s purpose was to permit
privately owned public utilities greater scope for challenging a
condemnation, specifically by enhancing their ability to
challenge the public necessity elements. The Assembly
Judiciary Committee report explained that while existing law
protected a public entity’s decision to take, following the
adoption of a resolution, “by providing a conclusive presumption
that the content of the resolution is true,” Senate Bill No. 1757
provides “a rebuttable, rather than a conclusive presumption”
which provided “a private electric, gas or water utility” with
“much greater ability to challenge any decision to condemn their
property.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No.
1757 (1991–1992 Reg. Sess.) as amended May 13, 1992, pp. 4, 1
(Assembly Judiciary Report).)
The Senate Judiciary Committee report likewise
explained that “[t]his bill would repeal those two conclusive
presumptions [in sections 1240.650 and 1245.250] and instead
provide for a rebuttable presumption” which would “allow
private utility companies to challenge the decision of a public
entity to take over the utility property.” (Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1757 (1991–1992 Reg. Sess.)
as amended May 4, 1992, p. 2 (Senate Judiciary Report).) The
report elaborates that “[u]nlike a conclusive presumption, which
cannot be challenged or contradicted, a rebuttable presumption

21
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

affecting the burden of proof permits a challenge to the fact
being assumed.” (Id. at p. 3.)4
The legislative history indicates that the Legislature
understood Senate Bill No. 1757 as overriding a status quo that
gave utility owners limited ability to challenge a public entity’s
findings as to the necessity of a taking. Given this
understanding, the Town’s view that Senate Bill No. 1757
overlaid the existing gross abuse of discretion standard of
review onto the newly enacted rebuttable presumptions is
implausible. The Town’s approach would not meaningfully
expand public utilities’ ability to challenge the substantive
determinations underlying a public entity’s decision to take over
their property; it would instead largely preserve the status quo,
under which public utilities would be required to focus their
challenges on the regularity of the condemning entity’s
decisionmaking.
The Town points to a statement by Jackie Speier, the
assembly member who introduced Senate Bill No. 1757. In the
statement, which was printed in the Assembly Journal by
unanimous consent, Speier stated that “SB 1757 makes a
procedural change in how, under limited circumstances, the
question of necessity and better public use is proven in eminent
domain actions,” and described the bill as “a procedural change,
evidentiary in nature” that “does not affect basic rights but only
allows introduction of evidence on the subject of the
presumption.” (6 Assem. J. (1991–1992 Reg. Sess.) p. 9647.)

4
The report’s reference to the “similar rebuttable
presumption of ‘more necessary use’ ” in section 1240.640 (Sen.
Judiciary Rep., supra, at p. 3), reinforces the conclusion that the
resemblance between the provisions is not accidental.

22
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

The Town, like the Court of Appeal, insists that gross
abuse of discretion review was “among the ‘basic rights’ the 1992
amendments were intended not to affect.” (Apple Valley, supra,
108 Cal.App.5th at p. 87.) Like the Court of Appeal in PG&E,
we find the argument unpersuasive — both because it is
contrary to the plain language of the statute and because
Speier’s unelaborated reference to “basic rights” is “too vague for
us to understand.” (PG&E, supra, 95 Cal.App.5th at p. 837.)
Nothing in the statement indicates that Speier was using the
term “basic rights” to refer to the technical legal standards
governing the adjudication of eminent domain challenges, as
opposed to, for instance, the substantive necessity elements that
check the exercise of the right to take. And the former
interpretation seems particularly unfounded, since the enacted
statute contains no indication whatsoever of a legislative intent
to apply the gross abuse of discretion standard in a challenge to
the taking of utility property.
D.
The Town argues that even if the text and history favor a
different approach, we should adopt a gross abuse of discretion
standard to avoid serious separation of powers concerns. We are
not persuaded.
The Town’s separation of powers argument relies heavily
on Dusek, in which the court characterized a public entity’s
decision to take property within its territorial boundaries as
“quasi-legislative.” (Dusek, supra, 193 Cal.App.3d at p. 260.)
Specifically, the Dusek court rejected the contention that a
public entity’s resolution of necessity was defective because it
failed to include specific findings. The court reasoned that no
such requirement applied because the decision to condemn

23
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

property required weighing the interests of the owners against
those of the entity’s other constituents and thus involved “ ‘a
fundamental political question’ and therefore a quasi-legislative
act.” (Ibid.)
The Town contends that this characterization is important
because the courts’ power to second-guess legislative
determinations is “extremely limited” (Connecticut Indem. Co.
v. Superior Court (2000) 23 Cal.4th 807, 814), and “excessive
judicial interference” with legislative decisionmaking “would
conflict with the well-settled principle that the legislative
branch is entitled to deference from the courts because of the
constitutional separation of powers” (Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 572.)
To avoid “excessive judicial interference” of this sort, the
Town urges us to read the 1992 amendments as preserving gross
abuse of discretion review for intraterritorial utility
condemnations. Notwithstanding the notable resemblance
between the rebuttable utility presumptions and the pre-
existing rebuttable presumption for extraterritorial takings, the
Town argues that the extraterritorial cases are not instructive
here because the extraterritorial takings cases themselves
recognize that extraterritorial takings do not implicate the same
separation of powers concerns. (See Wight, supra, 221
Cal.App.2d at p. 761 [“[W]hen a city seeks to condemn land
without its corporate limits, it devolves upon the courts to
determine whether the taking of the particular land is necessary
for the use”]; Keck, supra, 14 Cal.App.3d at p. 925 [explaining
that while a public entity targeting property inside its limits has
full knowledge of local conditions and is accountable to both the
property owners and the taxpayers, both factors are lacking
when a public entity targets extraterritorial property].)
24
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

How, then, should we understand the Legislature’s
decision to introduce the rebuttable presumption for utility
takings? The Town posits that this change was intended to
overturn prior law that, as the Town understands it, prevented
property owners from presenting evidence outside the
administrative record. (See Huntington Park Redevelopment
Agency v. Duncan (1983) 142 Cal.App.3d 17, 24–27.) In the
Town’s view, the Legislature was motivated by this “evidentiary
limitation . . . to add the rebuttable presumptions for utility
condemnations,” which “expanded what evidence judges may
consider for utility condemnations” without eliminating the
deference given to quasi-legislative, intraterritorial resolutions.
The Town’s argument encounters a number of difficulties.
For starters, the argument relies heavily on characterizations of
the eminent domain power in various mid-20th century cases
while ignoring a number of older cases that, at least facially,
seem to contradict its position. As amici curiae Golden State
Water Company points out, before the passage of statutes
making the adoption of a resolution of necessity conclusive on
the question of public necessity (Stats. 1913, ch. 293, § 1, pp.
549–550), it appears the issue was in fact decided by courts as
finders of fact. (See Vallejo & N.R. Co. v. Reed Orchard Co.
(1915) 169 Cal. 545, 555–556, 561 (Vallejo) [putting the
“question as to the necessity for the taking” to the jury under
the 1874 amendment to Code Civ. Proc. § 592]; Cummings v.
Peters (1880) 56 Cal. 593, 594 (Cummings) [submitting the
question of whether “ ‘the land sought to be condemned, or any
part of it, [was] necessary for’ ” a proposed ditch to the jury].)
These cases at least suggest that, if the governing statutory law
so permits, issues of necessity are generally considered
“questions of fact, on which issues may be joined, to be decided

25
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

at the trial.” (Southern Pac. R. R. Co. v. Raymond (1878) 53 Cal.
223, 227–228 (Southern Pac. R. R. Co.).) The Town offers no
response. At a minimum, the cases tend to undermine the
Town’s supposition — based entirely on mid-20th century case
law — that the question of necessity for an intraterritorial
taking case is a matter constitutionally committed to the
substantial discretion of the condemning entity, subject only to
deferential judicial review.
More fundamentally, the mid-century case law on which
the Town relies concerns review of a public entity’s decision to
adopt a resolution of necessity — i.e., its decision to invoke the
statutory mechanism necessary to begin the process of
condemnation. But as already discussed, it is a different
question whether the condemnation itself, once the public entity
has chosen that course of action, is consistent with the governing
law. Nothing in the Town’s cases holds that, regardless of what
the Legislature might have to say about the matter, courts
necessarily must take a hands-off approach in evaluating
whether a proposed condemnation represents a proper exercise
of the right to take private property by eminent domain. Indeed,
the case law suggests the contrary is true: It is within the
Legislature’s power to decide whether and to what extent to
place justiciable limits on the eminent domain power. (See
People v. Chevalier (1959) 52 Cal.2d 299, 306 (Chevalier)
[approvingly citing the “majority rule” that “ ‘[o]nce it is
judicially established that a use is public, it is within the
exclusive province of the Legislature to pass upon the question
of necessity for appropriating private property for that use,
unless the question of necessity has been made a judicial one,
either by the Constitution or by statute’ ” (italics added)].) Thus,
even if the Town’s adoption of the resolutions of necessity were

26
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

a “legislative act” to which courts were constitutionally required
to defer, Liberty’s objections do not place the validity of that
legislative act at issue, nor do they otherwise threaten to
encroach on any cognizable legislative power. Liberty simply
challenges the Town’s right to take its property, invoking the
statutory mechanism that the Legislature has provided for that
very purpose.
The Town’s argument seems to assume that judicial
review of an act committed to another branch is at odds with the
separation of powers. This is, of course, not the case. For
example, “the traditional charging power of the prosecutor”
means there is “no judicial ‘review’ of the prosecutor’s exercise
of discretion to file charges in criminal court.” (Manduley v.
Superior Court (2002) 27 Cal.4th 537, 559; People v. Birks (1998)
19 Cal.4th 108, 134 [prosecutors “ordinarily have the sole
discretion to determine whom to charge with public offenses and
what charges to bring,” and this discretion is based “on the
principle of separation of powers, and generally is not subject to
supervision by the judicial branch”].) But that does not mean
that courts may not decide questions concerning the validity of
charges once filed. Similarly, while the separation of powers
means that “a court may not compel the Legislature to enact a
legislative measure” (Mandel v. Myers (1981) 29 Cal.3d 531,
539), that does not mean that legislation is not subject to judicial
review. So too here: while the decision to initiate a
condemnation proceeding by adopting a resolution of necessity
belongs to the public entity, once initiated, it falls to the courts
to determine whether that condemnation satisfies the statutory
prerequisites for exercising the power of eminent domain.
Nor does the case law support the idea that the
Legislature is constitutionally restricted in its ability to set
27
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

limits on the eminent domain power. The cases discussed by the
Town set out no such constitutional limitation; unsurprisingly,
they instead anchor their reasoning, first and foremost, in the
Legislature’s statutory directives. Chevalier, for instance,
explained that “our statutory provisions . . . have placed the
determination of the question of ‘necessity’ within the exclusive
province of the condemning body” by giving conclusive effect to
the condemner’s finding of necessity, and that holding otherwise
would “thwart the legislative purpose in making such
determinations conclusive.” (Chevalier, supra, 52 Cal.2d at pp.
306–307, italics added, citations omitted.)5 Likewise Dusek,
which faulted the trial court for failing to look to “the specific
statutory standard compelled under the eminent domain law
(Code Civ. Proc., § 1245.255),” and for instead beginning “its
analysis with a determination of whether the adoption of a
resolution was an adjudicative or legislative act.” (Dusek, supra,
193 Cal.App.3d at p. 254, italics added.)6

5
The Legislature subsequently overruled Chevalier by
enacting section 1245.255, which “provided for a very limited
collateral attack on a resolution of necessity” under the gross
abuse of discretion standard. (Dusek, supra, 193 Cal.App.3d at
p. 254.)
6
The other Court of Appeal cases on which the Town relies
likewise focus on the terms of the statute, rather than
purporting to elaborate a constitutionally-rooted right of public
entities to take private property with only limited judicial
oversight. (See Wight, supra, 221 Cal.App.2d at p. 761
[explaining that a municipality “derives power from statutory
law to condemn land,” that one provision “of the Code of Civil
Procedure limits the power of the condemning agency when the
proposed taking is outside its territorial limits” and that no
statute contains “an express grant of power enabling the

28
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

Finally, we reject the Town’s argument that, regardless of
its ability to do so, the Legislature that enacted the utility
presumptions in 1992 did not intend to alter the standard of
review for intraterritorial utility takings, and instead merely
sought to allow owners to introduce additional evidence to rebut
the relevant presumptions.
The statutory text provides no support for the Town’s
claim that the 1992 amendments merely repealed a prior
limitation on the evidence a challenger may introduce in an
eminent domain proceeding. If the Legislature merely intended
to permit the introduction of evidence outside of the
administrative record, it could have said so. It instead enacted
rebuttable presumptions affecting “the burden of proof.”
(§§ 1245.250(b), 1240.650(c).) The most natural understanding
of these presumptions — particularly considered in light of the
legislative history and prior experience employing similar
presumptions in other contexts — is that the Legislature
intended to make necessity a question for the court to decide as
trier of fact, placing on utilities the burden of disproving the
findings reflected in the public entity’s resolution of necessity.
Arguing that the Legislature did not intend to modify the
standard of review also erroneously presupposes that the gross
abuse of discretion standard applied to challenges to the right to
take intraterritorial property before the 1992 amendments.
This again conflates the standard of review for the adoption of

plaintiff to reach its hand outside its boundaries”]; Keck, supra,
14 Cal.App.3d at p. 925 [finding it “apparent that the
Legislature, in differentiating between property inside and
outside the territorial limits of the condemning agency,
recognized the differences . . . in these contrasting situations”
(italics added)].)

29
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

the resolution of necessity with the burden of proof at a trial on
an owner’s objections. As we have explained, these legal
standards apply to distinct challenges. The Legislature thus
had no reason to modify the standard of review in section
1245.250 once it had replaced the conclusive presumptions with
rebuttable presumptions.
The Town’s position also finds no support at all in the
legislative history. The Town seizes on references in the
legislative committee reports to resolutions of necessity as
“legislative” determinations (see, e.g., Sen. Judiciary Rep.,
supra, at p. 3); these references, the Town argues, demonstrate
a recognition of separation of powers concerns that “require[]
gross abuse of discretion review to avoid judicial usurpation of
local policymaking.”7 But the committee reports say nothing
about separation of powers or the gross abuse of discretion
standard. And the same materials demonstrate that the
Legislature understood that it was the “conclusive
presumption[s]” — not the “legislative” nature of the
resolutions — that required judicial deference to a public
entity’s determinations at a subsequent trial. By altering the
conclusive nature of those presumptions, the Legislature
likewise altered the degree of deference that courts must afford
to a public entity’s decision to take utility property.
The Town also advances various arguments based on what
the legislative history “doesn’t say.” According to the Town, it is

7
The argument ignores the fact that the legislative
committee reports also expressly described “[a] resolution of
necessity [as] an administrative determination that the
statutory prerequisites for the taking . . . have been met.”
(Assem. Judiciary Rep., supra, at p. 1.)

30
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

significant that “the legislative history does not state that the
change from ‘conclusive’ to ‘rebuttable’ means resolutions are no
longer legislative/quasi-legislative acts or that intraterritorial
utility condemnations should be treated the same as
extraterritorial takings”; that the history does not mention
extraterritorial cases; and that the history does not state that
the administrative record and gross abuse of discretion standard
are irrelevant. The court below similarly claimed that the
legislative history “repeatedly acknowledges the ‘gross abuse of
discretion’ standard codified in section 1245.250” but “did not
touch it nor suggest that it should not apply in public utility
condemnations after the 1992 amendments,” and did not
“suggest that utility condemnations should be treated the same
as extraterritorial takings.” (Apple Valley, supra, 108
Cal.App.5th at p. 87.) This reliance on the Legislature’s
purported silence is misplaced; the Town offers no sound basis
to override the usual rule that “[t]he objective manifestation of
the legislative intent (the words of the amended statute)
controls over silence in the legislative history record.” (Hayes v.
Temecula Valley Unified School Dist. (2018) 21 Cal.App.5th 735,
753.)
Finally, and perhaps most fundamentally, the Town’s
proposed approach fails because it is simply unworkable. (See
Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554,
567, quoting Wasatch Property Management v. Degrate (2005)
35 Cal.4th 1111, 1122 [Courts construing a statute also “ ‘apply
common sense to the language at hand and interpret the statute
to make it workable and reasonable’ ”].)
As the court in PG&E explained, “ ‘[a] presumption
affecting the burden of proof places on the party against whom
it operates . . . the affirmative obligation to prove it false by a
31
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

preponderance of the evidence, unless a different standard of
proof is required by law.’ ” (PG&E, supra, 95 Cal.App.5th at p.
835, quoting Farr v. County of Nevada (2010) 187 Cal.App.4th
669, 681; see also Evid. Code, § 115.) In contrast, under the
gross abuse of discretion standard — which, again, may be
satisfied by showing “ ‘a lack of substantial evidence supporting
the resolution of necessity’ ” (Hinz, supra, 115 Cal.App.4th at p.
1221) — “ ‘ “the reviewing court defers to the factual findings
made below [and] does not weigh the evidence presented by both
parties . . . . Instead, it determines whether the evidence the
prevailing party presented was substantial.” ’ ” (PG&E, at p.
835, quoting Coastal Environmental Rights Foundation v.
California Regional Water Quality Control Bd. (2017) 12
Cal.App.5th 178, 187–188.) In other words, while “a[] [litigant]
whose evidence constitutes 60 percent proof would satisfy the
preponderance of the evidence,” the litigant would still fail to
demonstrate the absence of “any substantial factual basis
because 40 percent proof would qualify as a substantial factual
basis.” (Bichai v. DaVita, Inc. (2021) 72 Cal.App.5th 1126,
1140.) Thus, layering the gross abuse of discretion standard
onto the rebuttable utility presumptions would render those
presumptions a nullity: a property owner who demonstrated the
nonexistence of the required elements by a preponderance of the
evidence would still not have thereby demonstrated “ ‘that the
[public entity’s] findings are not supported by substantial
evidence.’ ” (Apple Valley, supra, 108 Cal.App.5th at p. 89.)
The Town resists this conclusion by disputing the nature
of substantial evidence review, insisting that even under this
standard, trial courts must consider “ ‘ “ ‘evidence that fairly
detracts from the evidence supporting the agency’s decision.’ ” ’ ”
(Cate v. State Personnel Bd. (2012) 204 Cal.App.4th 270, 281.)

32
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

This proposition, which echoes the United States Supreme
Court’s seminal substantial evidence case, Universal Camera
Corp. v. NLRB (1951) 340 U.S. 474, 487, establishes a standard
for reviewing administrative decisionmaking. (Cate, at p. 282.)
But as courts have made clear, this approach “does not
constitute independent review where the court substitutes its
own findings and inferences”; rather, the standard means that
a court “may reverse [the agency’s] decision only if, based on the
evidence before [the agency], a reasonable person could not have
reached the conclusion reached by [the agency].” (Kirkorowicz
v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986.)
Engaging in this form of record-based review of agency action is,
of course, not the same thing as applying a rebuttable
presumption imposing a burden of proof with respect to the
existence of a particular set of facts.
The Town suggests, evidently in the alternative, that
because the text of the 1992 amendments does not expressly
refer to the preponderance of the evidence standard, the burden
of proof could be a heavier burden, akin to a clear and convincing
standard, more in line with gross abuse of discretion review.
But as explained above, the default rule is that the standard of
proof is by a preponderance of the evidence (Evid. Code, § 115),
and the Town points to nothing in the text or the history of the
statute suggesting that the Legislature intended to prescribe a
heavier burden.
The Town also attempts to deflect these criticisms by
arguing that it is actually Liberty’s approach that would be
illogical. The Town reasons that “[t]he Legislature left in place
only two routes for attacking” resolutions of necessity — either
via a Code of Civil Procedure section 1085 mandamus petition
before the public entity files an eminent domain complaint (see
33
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

§ 1245.255, subd. (a)(1)), or objecting in the eminent domain
proceeding if the public entity has already sued (see id., subd.
(a)(2)). In the Town’s view, imposing two different standards in
these scenarios — gross abuse of discretion in the first,
independent review in the second — would permit “different
review standards to apply depending on who sues first.” But as
we have explained, a challenge to a resolution is distinct from
an objection to the right to take. There is nothing illogical about
prescribing two different standards for adjudicating two
different kinds of challenges.8
E.
The parties vigorously dispute the policy implications of
their respective positions. The Town argues that Liberty’s

8
The Town also asks us to follow the reasoning of Dusek,
which concluded that the gross abuse of discretion standard of
review applicable under Code of Civil Procedure section 1085,
the traditional mandamus statute, also applies where a
challenge to a resolution of necessity is raised in an already
initiated eminent domain proceeding. (Dusek, supra, 193
Cal.App.3d at p. 258; see also § 1245.255, subd. (a)(2).) But
Dusek does not embrace the proposition that, regardless of
whether the owner attacks the resolution itself, all objections
that contradict a resolution’s findings are subject to the gross
abuse of discretion standard; Dusek addressed only the
challenge before it, in which the property owners challenged the
resolution for not including findings of fact. (Id. at pp. 252, 258.)
Other cases cited by the Town concerning the standard of review
for a challenge to the resolution simply have no bearing on
whether there would be any incongruity in permitting
independent review by the trial court of the public necessity
elements in an eminent domain proceeding. (See, e.g.,
Inglewood Redevelopment Agency v. Aklilu (2007) 153
Cal.App.4th 1095, 1114 [addressing standard for reviewing
challenge to a resolution of necessity].)

34
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

approach allows trial courts to make policy determinations that
rightly belong to public entities and, furthermore, prevents
these entities from pursuing objectives that privately owned
utilities cannot or do not effectively pursue, such as improving
water recycling, fire prevention, environmental review, and the
coordination of city services and land use development.
Liberty’s construction, we are told, also turns the acquisition of
private utilities into “a crapshoot where a judge has ultimate
say,” despite the democratically expressed will of the voters, and
exposes municipalities to astronomical attorney fees, such as
the $13.2 million fee in this case. For its part, Liberty argues
that the Legislature had good reason for allowing greater
judicial scrutiny where a public entity seeks to take utility
property, and that allowing the appellate court’s decision in this
case to stand will have “a dramatic adverse impact on utility
services throughout the state” by producing less informed
decisions regarding whether a given taking actually serves the
public interest. The utilities that advocated for the 1992
amendments made a similar argument to the Legislature,
urging that such oversight guards against the risk that public
entities will target utilities as a means of generating revenue.
(Assem. Judiciary Rep., supra, at p. 3.)
Consideration of the Town’s policy concerns does not
persuade us to depart from the best reading of the statutory text.
We would observe, in that regard, that it is not unprecedented
to treat the question of public necessity as a question of fact for
the court, rather than a matter committed largely to the
discretion of the condemning authority. (See, e.g., Vallejo,
supra, 169 Cal. at pp. 561, 577; Cummings, supra, 56 Cal. at p.
594; Southern Pac. R. R. Co., supra, 53 Cal. at pp. 227–228; see
also, e.g., Cersosimo v. Town of Townshend (1981) 139 Vt. 594,

35
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

597; Central Puget Sound Regional Transit Authority v. WR-SRI
120th North LLC (2018) 191 Wn.2d 223, 250.) In all events,
given the complex and multifaceted nature of the policy
considerations involved, the Town’s objection to this approach
“ ‘is best directed to the Legislature, which can study the various
policy and factual questions and decide what rules are best for
society.’ ” (Brown v. City of Inglewood (2025) 18 Cal.5th 33, 55,
quoting Carrisales v. Department of Corrections (1999) 21
Cal.4th 1132, 1140.) We, however, are bound to give effect to
the statutory provisions the Legislature has already enacted.
Ultimately, the Town and the Court of Appeal have
accorded to resolutions of necessity a significance that is not
supported by the statutory text, or by any of the other aids to
interpretation. The resolution is not the be-all and end-all of a
condemnation proceeding; the Eminent Domain Law allows an
owner to object to the right to take “regardless of whether the
plaintiff has adopted a resolution of necessity that satisfies the
requirements of Article 2” (Code Civ. Proc., § 1250.360), and
authorizes further grounds for objection where the resolution
lacks conclusive effect (id., § 1250.370).
That does not mean that the adoption of a resolution is an
empty formality. Again, where a conclusive presumption
applies, a valid resolution “conclusively establishes” the public
necessity elements. (§ 1245.250, subd. (a).) And even a mere
rebuttable presumption shifts a burden of proof that would
ordinarily be borne by the public entity, as the plaintiff in the
eminent domain action, to the property owner. (See Code Civ.
Proc., § 1230.040; Evid. Code, § 500.) But in all events, the
adoption of a resolution of necessity serves other purposes
besides achieving litigation advantage. “Implicit in t[he]
requirement of a hearing and the adoption of a resolution of
36
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

necessity is the concept that, in arriving at its decision to take,
the Agency engage in a good faith and judicious consideration of
the pros and cons of the issue. . . .” (Redevelopment Agency v.
Norm’s Slauson(1985) 173 Cal.App.3d 1121, 1125–1126.)
III.
The parties debate what should follow from our conclusion
that the trial court in this case applied the correct standard in
adjudicating Liberty’s challenge to the Town’s eminent domain
action. The Town argues that the Court of Appeal’s reversal
should nonetheless stand because, separate and apart from the
standard applied by the trial court, the Court of Appeal found
other reversible errors in the trial court’s judgment that were
not included in this court’s limited review grant.
It is not clear, however, that any of the additional
supposed errors the court identified were truly independent of
the court’s understanding of the meaning and import of the
rebuttable utility presumptions. The Court of Appeal explained
that, in its view, “the trial court erred in three principal
respects: (1) it did not apply the gross abuse of discretion
standard; (2) it did not properly apply the rebuttable
presumption; and (3) it erroneously relied solely on post-
[resolution] evidence to find that Liberty met its burden.” (Apple
Valley, supra, 108 Cal.App.5th at p. 93.) The court reasoned
that, “[t]aken together, these errors were prejudicial because it
is reasonably probable that [the Town] would have obtained a
better result had the errors not occurred.” (Ibid., italics added.)
The final statement makes it unclear whether the court
considered the second or third grounds, standing alone, to be
sufficient grounds for reversal. In any event, the court’s
analysis as to the second and third grounds was not independent

37
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

of its understanding of the standard of review. With respect to
the second ground, the court held that “[t]o successfully
challenge [the] eminent domain action, Liberty had to rebut [the
Town’s] presumptively correct findings,” which it could not do
“unless the [resolution] and its underlying findings/objectives in
the [administrative record] and [the Town’s] reasons for
adopting the [resolution] were considered at the outset.” (Apple
Valley, supra, 108 Cal.App.5th at p. 90.) Although the court
deemed the exclusion of the administrative record harmless, it
nonetheless found error because the trial court did not “ ‘begin
its review with a presumption of the correctness of
administrative findings.’ ” (Id. at p. 91, quoting Fukuda v. City
of Angels (1999) 20 Cal.4th 805, 819.) But this premise — that
Liberty could not rebut the rebuttable presumptions without
considering the resolution’s “underlying findings/objectives” —
conflates the resolution of necessity with the right to take.
(Apple Valley¸ at p. 90.) In the context of a challenge to the right
to take utility property, the trial court’s “ ‘starting point’ ” (id. at
p. 91) is the rebuttable presumption itself (§ 1245.250(c)), and
not the resolution of necessity.
The third ground also appears to rest on the premise that
the necessary object of Liberty’s challenge is the resolution of
necessity. The court explained that “the [resolution] ‘is the
fundamental predicate to the entire condemnation process’ ”
and would be “meaningless . . . if it could be invalidated with
exclusively post-[resolution] evidence.” (Apple Valley, supra,
108 Cal.App.5th at p. 93, quoting City of Stockton v. Marina
Towers LLC (2009) 171 Cal.App.4th 93, 107.) The court should
have the opportunity to reconsider that conclusion in light of the
guidance this opinion offers.

38
 TOWN OF APPLE VALLEY v. APPLE VALLEY RANCHOS WATER
Opinion of the Court by Kruger, J.

On this last point, renewing an argument it made in its
petition, Liberty asks us to decide that the Court of Appeal erred
in limiting its ability to rely on post-resolution evidence. We
specifically limited review to not address this issue and again
decline to address it. Liberty may be correct that the answer to
this question is necessarily informed by our resolution of the
issue on which we did grant review. But this question is best
addressed by the Court of Appeal in the first instance.
IV.
The Court of Appeal erred in concluding that the Town’s
decision to take over the privately owned public water utility
was subject to review only for gross abuse of discretion. We
reverse the judgment of the Court of Appeal and remand for
further proceedings consistent with this opinion.
KRUGER, J.

We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
EVANS, J.
LANGHORNE WILSON, J.*

*
Associate Justice of the Court of Appeal, First Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

39
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion Town of Apple Valley v. Apple Valley Ranchos
Water
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 108 Cal.App.5th 62
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________

Opinion No. S289391
Date Filed: August 24, 2026
__________________________________________________________

Court: Superior
County: San Bernardino
Judge: Donald R. Alvarez
__________________________________________________________

Counsel:

Greines, Martin, Stein & Richland, Edward L. Xanders, Timothy T.
Coates, Joseph V. Bui; Best Best & Krieger, Kendall H. MacVey,
Christopher M. Pisano and Guillermo A. Frias for Plaintiff and
Appellant.

Rutan & Tucker, Douglas J. Dennington and Jayson Parsons for the
Monterey Peninsula Water Management District as Amicus Curiae on
behalf of Plaintiff and Appellant.

David Chiu, City Attorney (San Francisco), Theresa L. Mueller,
Kristen A. Jensen and Brian F. Crossman, Deputy City Attorneys, for
the City and County of San Francisco and the California State
Association of Counties as Amici Curiae on behalf of Plaintiff and
Appellant.

Matteoni, O’Laughlin & Hechtman, Gerry Houlihan; Murphy & Evertz
and Douglas Evertz for the Association of California Water Agencies,
the League of California Cities, the California Municipal Utility
Association, the California Special Districts Association and the South
San Joaquin Irrigation District as Amici Curiae on behalf of Plaintiff
and Appellant.

Manatt, Phelps & Phillips, Edward G. Burg, Michael M. Berger,
George M. Soneff, David Moran, Benjamin Shatz, Joanna S.
McCallum; Horvitz & Levy, Bradley S. Pauley and Robert H. Wright
for Defendant and Respondent Apple Valley Ranchos Water.

Nossaman, Bradford B. Kuhn and Rick Rayl for the California Water
Association, Southern California Edison Company and San Diego Gas
& Electric Company as Amici Curiae on behalf of Defendant and
Respondent Apple Valley Ranchos Water.

Manatt, Phelps & Phillips, Edward G. Burg, George M. Soneff, Joanna
S. McCallum and David T. Moran for the Golden State Water
Company and the California-American Water Company as Amici
Curiae on behalf of Defendant and Respondent Apple Valley Ranchos
Water.

Munger Tolles & Olson, Teresa A. Reed Dippo, Kyle A. Groves and
Elaine J. Goldenberg for Pacific Gas and Electric Company as Amicus
Curiae on behalf of Defendant and Respondent Apple Valley Ranchos
Water.

No appearance for Defendants and Respondents Jess Ranch Water
Company and Jess Ranch Development Company.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Edward L. Xanders
Greines, Martin, Stein & Richland LLP
6420 Wilshire Boulevard, Suite 1100
Los Angeles, CA 90048
(310) 859-7811

Bradley S. Pauley
Horvitz & Levy LLP
505 Sansome Street, Suite 1550
San Francisco, CA 94111
(818) 995-5887

Elaine J. Goldenberg
Munger Tolles & Olson LLP
601 Massachusetts Avenue, NW, Suite 500 E
Washington, DC 20001
(202) 220-1114


JOSEPH MAYOR,
Petitioner,
v.
WORKERS’ COMPENSATION APPEALS BOARD and ROSS
VALLEY SANITATION DISTRICT,
Respondents.

S287261

First Appellate District, Division Four
A169465

Workers’ Compensation Appeals Board
ADJ10036954

August 24, 2026

Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Kim* concurred.

*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 MAYOR v. WORKERS’ COMP. APPEALS BD.
S287261

Opinion of the Court by Evans, J.

Joseph Mayor was awarded total and permanent
disability for an injury he suffered while working for Ross Valley
Sanitation District (Ross Valley). Ross Valley timely filed a
petition for reconsideration of the award. At the time, Labor
Code section 59091 provided that a petition for reconsideration
“is deemed to have been denied” by the Workers’ Compensation
Appeals Board (Appeals Board) “unless it is acted upon within
60 days from the date of filing.” (Stats. 1992, ch. 1226, § 5,
p. 5766.) The Appeals Board did not act on the petition for
reconsideration until 144 days after it was filed. The Appeals
Board represented that it failed to act because it did not receive
notice of the petition for reconsideration until after the 60-day
statutory window expired. The issue before us is whether the
Appeals Board may equitably toll former section 5909’s 60-day
deadline for the Board to act on a petition for reconsideration
when the Board did not receive the petition until after the
deadline elapsed. The Court of Appeal held that former section
5909 is mandatory, and the Appeals Board exceeded its
jurisdiction when it acted on the petition for reconsideration
outside the 60-day statutory period. (Mayor v. Workers’ Comp.
Appeals Bd. (2024) 104 Cal.App.5th 1297, 1309 (Mayor).)

1
Further unlabeled statutory references are to the Labor
Code.

1
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

We agree with the Court of Appeal that the deadline in
former section 5909 is mandatory and that the Appeals Board
may not equitably toll its own deadline to act. Tolling operates
to allow litigants to pursue claims outside of an applicable
statute of limitations when certain equitable considerations are
present. It does not apply to the Appeals Board’s own deadline
to act. While there may be some narrow circumstances in which
due process considerations could permit the Appeals Board to
act outside of the 60-day deadline, Ross Valley has not asserted
that its due process rights were violated, and the Board’s
automatic tolling of its own deadline is not the appropriate
mechanism to resolve such concerns. We therefore affirm the
judgment of the Court of Appeal granting Mayor’s petition for
writ of mandate.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, Joseph Mayor suffered an industrial
injury while working for Ross Valley Sanitation District. Mayor
filed a workers’ compensation claim and a workers’
compensation judge (WCJ) issued an award finding Mayor
totally and permanently disabled. On March 23, 2023, Ross
Valley timely filed a petition for reconsideration of the WCJ’s
award. Mayor filed a timely answer to the petition. Within 15
days of the filing of a petition for reconsideration, regulations
require the WCJ to either prepare a report and make a
recommendation to the Appeals Board regarding how to dispose
of the petition, rescind the award and initiate further
proceedings, or rescind the award and issue an amended award.
(Cal. Code Regs., tit. 8, § 10961; see also id. § 10962.) For
reasons unclear in the record, the WCJ did not take any action
on the petition for reconsideration.

2
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

The Appeals Board in turn did not take action within 60
days of the filing of the petition for reconsideration. Seventy-
four days after filing its petition for reconsideration, Ross Valley
sent a letter to the Appeals Board inquiring as to the petition’s
status. This is the first and only time Ross Valley communicated
with the Appeals Board about the petition. There is no
indication in the record that the Appeals Board responded to
this inquiry.
Nearly five months (144 days) after the petition for
reconsideration was filed, the Appeals Board issued an opinion
and order granting the petition for reconsideration. Attached to
the order was a “Notice Pursuant to Shipley [v. Workers’ Comp.
Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley)]” that provided:
“Reconsideration has been sought with regard to the decision
filed on March 2, 2023. Labor Code section 5909 provides that
a petition for reconsideration is deemed denied unless the
Workers’ Compensation Appeals Board acts on the petition
within 60 days of filing . . . . The petition(s) was filed on March
23, 2023. The Appeals Board first received notice of the
petition(s) on or about June 15, 2023 . . . . The Opinion and
Order Granting Petition for Reconsideration filed
simultaneously with this Notice may be considered timely if
issued within 60 days of the Appeals Board receiving notice of
the petition(s).”2
Mayor filed a petition for writ of mandate in the Court of
Appeal requesting that the opinion and order granting the

2
According to the Appeals Board, a Shipley notice is not an
order or opinion of the Appeals Board; instead, it provides notice
to the parties that the Appeals Board will be considering Shipley
when it issues its final opinion.

3
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

petition for reconsideration be rescinded as untimely and void,
and he requested to enforce the WCJ’s award of permanent
disability in his favor. Mayor argued the 60-day deadline in
former section 5909 was mandatory and jurisdictional, so the
Appeals Board acted in excess of its powers when it granted the
petition for reconsideration after the deadline passed.
While the writ petition was pending, the Appeals Board
issued an opinion and order granting the petition for
reconsideration and decision after reconsideration. Shortly
thereafter, the Appeals Board rescinded its opinion and order
and issued a revised order addressing Shipley. It took the
position that Shipley “properly recognized that in workers’
compensation, deprivation of reconsideration without due
process — without . . . full de novo review of the record in the
case — ‘offends’ the fundamental right of due process, as well as
the Appeals Board’s mandate to ‘accomplish substantial justice
in all cases.’ ” The Appeals Board also noted that with respect
to petitions for reconsideration that it does not receive within 60
days of filing “due to irregularities outside the petitioner’s
control,” under Shipley, the Appeals Board “acts to grant or deny
such petitions for reconsideration within 60 days of receipt of
any such petition, and thereafter to issue a decision on the
merits. By doing so, the Appeals Board also preserves the
parties’ ability to seek meaningful appellate review.” (Italics
added.)
Turning to this case, the Appeals Board acknowledged
Ross Valley filed a timely petition for reconsideration on March
23, 2023. According to the Appeals Board, it did not receive the
petition until more than 60 days after it was filed due to an
administrative irregularity that was neither party’s fault. The
Appeals Board concluded that it could toll the time for it to act

4
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

on the petition for reconsideration until the petition was
available to the Board, so that its order granting reconsideration
was timely.
While the writ petition was pending, the Legislature
enacted Assembly Bill No. 171 (2023–2024 Reg. Sess.)
(Assembly Bill 171), which amended former section 5909 to
state: “(a) A petition for reconsideration is deemed to have been
denied by the appeals board unless it is acted upon within 60
days from the date a trial judge transmits a case to the appeals
board. [¶] (b)(1) When a trial judge transmits a case to the
appeals board, the trial judge shall provide notice to the parties
of the case and the appeals board. [¶] (2) For purposes of
paragraph (1), service of the accompanying report, pursuant to
subdivision (b) of Section 5900, shall constitute providing notice.
[¶] (c) This section shall remain in effect only until July 1, 2026,
and as of that date is repealed.” (Stats. 2024, ch. 52, § 27,
repealed by its own terms; replaced by Stats. 2024, ch. 52, § 28,
eff. July 1, 2026.3)
The Court of Appeal granted Mayor’s writ petition. It held
former section 5909 is mandatory and the Appeals Board
exceeded its jurisdiction in issuing an order granting Ross

3
The sunset provision that was to take effect July 1, 2026,
would have reinstated former section 5909’s requirement that
petitions for reconsideration are deemed denied unless acted
upon within 60 days from the date of filing. Since we granted
review, the Legislature repealed the sunset provision. As a
result, section 5909 maintains the amended trigger for the
Appeals Board to act on a petition for reconsideration as 60 days
from the date the trial judge transmits the case to the Board.
(Stats. 2026, ch. 83, § 19, eff. July 13, 2026; see also Sen. Rules
Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill 171
(2025–2026 Reg. Sess.) as amended June 29, 2026, p. 2.)

5
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

Valley’s petition for reconsideration more than 60 days after it
was filed. (Mayor, supra, 104 Cal.App.5th at p. 1301.) In so
concluding, the Court of Appeal followed Zurich American Ins.
Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213
(Zurich), which held that the Appeals Board acted in excess of
its jurisdiction in granting a petition for reconsideration after
the 60-day deadline passed. (Mayor, at p. 1301, see also Zurich,
at pp. 1230, 1236, & fn. 17.)
We granted review. Since that time, we have granted
review and deferred further action in other matters raising the
issue presented here until after this case is decided. (City of
Salinas v. Workers’ Comp. Appeals Bd. (2025) 113 Cal.App.5th
801, review granted Nov. 19, 2025, S293212 (City of Salinas)
[holding former section 5909 is mandatory but not jurisdictional
and facts supported application of equitable tolling]; Ishal v.
Workers’ Comp. Appeals Bd., review granted Feb. 19, 2025,
S288364; L.A. Specialty Produce Co. v. Workers’ Comp. Appeals
Bd., review granted Jan. 29, 2025, S288040; Zenith Ins. Co. v.
Workers’ Comp. Appeals Bd. (2026) 118 Cal.App.5th 510, review
granted Apr. 29, 2026, S295357 (Zenith) [following City of
Salinas and concluding facts did not support application of
equitable tolling].)
II. DISCUSSION
A. Relevant Legal Background
Article XIV, section 4 of the California Constitution
expressly vests the Legislature “with plenary power, unlimited
by any provision of this Constitution, to create, and enforce a
complete system of workers’ compensation, by appropriate
legislation.” Section 4 also “ratified and confirmed” “the
creation and existence of the industrial accident commission of

6
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

this State” and vested plenary power in the Legislature “to
provide for the settlement of any disputes arising under such
legislation . . . by an industrial accident commission.” (Cal.
Const., art. XIV, § 4.) This provision also declares that “the
administration of such legislation shall accomplish substantial
justice in all cases expeditiously, inexpensively, and without
incumbrance of any character.” (Ibid.)
To this end, the Legislature enacted the Workers’
Compensation Act, a comprehensive statutory scheme in the
Labor Code. (§ 3201 et seq.; see also id. § 3201 [“This division
and Division 5 (commencing with Section 6300) are an
expression of the police power and are intended to make
effective and apply to a complete system of workers’
compensation the provisions of Section 4 of Article XIV of the
California Constitution”].) At the time of former section 5909’s
enactment, all workers’ compensation matters were handled by
the Industrial Accident Commission. (See, e.g., former § 5900,
Stats. 1937, ch. 90, p. 302 [permitting an individual to petition
the Commission for rehearing]; see also former § 5908, Stats.
1937, ch. 90, p. 304 [permitting the Commission to rescind, alter,
or amend an order, decision, or award].) In 1965, the
Commission’s responsibilities were divided between two newly-
created entities — the Appeals Board, which took on the
Commission’s judicial functions, and the Division of Workers’
Compensation (DWC), which received the Commission’s
administrative responsibilities. (See former § 110, subd. (a),
Stats. 1965, ch. 1513, p. 3556; former § 111, Stats. 1965,
ch. 1513, p. 3557; former § 123, Stats. 1965, ch. 1513, p. 3559.)
The DWC is authorized to employ workers’ compensation
administrative law judges (§ 123), who have authority to issue
orders and awards necessary to fully adjudicate workers’

7
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

compensation cases. (Cal. Code Regs, tit. 8, § 10330.) “Orders,
findings, decisions and awards issued by a workers’
compensation judge shall be the orders, findings, decisions and
awards of the . . . Appeals Board unless reconsideration is
granted.” (Ibid.)
Sections 5900 through 5911 govern petitions for
reconsideration of workers’ compensation awards. Any person
aggrieved by a decision or award of the Appeals Board or the
WCJ may petition the Appeals Board for reconsideration.
(§ 5900, subd. (a).) “[T]he appeals board may, with or without
further proceedings and with or without notice affirm, rescind,
alter, or amend the order, decision, or award made and filed by
the appeals board or the workers’ compensation judge on the
basis of the evidence previously submitted in the case, or may
grant reconsideration and direct the taking of additional
evidence.” (§ 5906.)
“The petition shall be made only within the time and in
the manner specified in this chapter.” (§ 5900, subd. (a).)
Section 5909 lays out the time for the Appeals Board to act on a
party’s petition for reconsideration. The version of section 5909
that was operative at all relevant times in this case provided:
“A petition for reconsideration is deemed to have been denied by
the appeals board unless it is acted upon within 60 days from
the date of filing.” (Stats. 1992, ch. 1226, § 5, p. 5766.)
Anyone “affected by an order, decision, or award of the
appeals board” may file a petition for writ of review of that order.
(§ 5950.) “The application for writ of review must be made
within 45 days after a petition for reconsideration is denied, or,
if a petition is granted . . . within 45 days after the filing of the
order, decision, or award following reconsideration.” (Ibid.)

8
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

Appellate review of an order or award of the Appeals Board is
limited to: whether “[t]he appeals board acted without or in
excess of its powers”; whether the order, decision, or award was
procured by fraud, was unreasonable, or was not supported by
substantial evidence; or whether findings of fact support the
order, decision or award. (§ 5952, subd. (a).)
The Court of Appeal here concluded the operative version
of section 5909 is mandatory. (Mayor, supra, 104 Cal.App.5th
at p. 1309.) In so doing, it adopted the analysis of Zurich, which
held that the Appeals Board acted in excess of its jurisdiction
when it granted a petition for reconsideration more than 60 days
after it was filed. (Zurich, supra, 97 Cal.App.5th at pp. 1231–
1236.) In that case, the Appeals Board granted a workers’
compensation insurer’s petition for reconsideration for study
more than nine months after it was filed, even though the
petition for reconsideration had been forwarded to the Appeals
Board about five weeks after it was filed. (Id. at pp. 1223–1224.)
The Appeals Board indicated that due to an administrative
irregularity, it first received notice of the petition for
reconsideration about a month before it granted the petition.
(Id. at p. 1224.) Zurich filed a writ petition, and the Court of
Appeal issued a peremptory writ of mandate directing the
Appeals Board to rescind the order granting reconsideration.
(Id. at p. 1240.)
In concluding that the Appeals Board exceeded its
jurisdiction by acting on the petition for reconsideration after
the statutory period elapsed, the Zurich court noted the
operative version of section 5909 specifies a consequence for the
Appeals Board’s failure to act within 60 days of the petition’s
filing: the petition is deemed denied. (Zurich, supra, 97
Cal.App.5th at p. 1231.) The court observed that the legislative

9
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

history of the Workers’ Compensation Act indicated “the
workers’ compensation system is designed to achieve ‘ “average
justice” ’ that is ‘speedily and inexpensively administered’
instead of ‘exact justice’ that could consume too much time and
leave the claimant in debt. [Citation.] The Legislature struck
that balance in providing finality to the decision of the workers’
compensation judge, setting time limits in which the Board may
review a petition for reconsideration, and, upon expiration of
those limits, providing the parties with access to judicial
review.” (Id. at p. 1235.) The Zurich court additionally found
the structure of the statutory scheme supported its conclusion,
as section 5909 works in tandem with section 5950 — the
statute setting the deadline to seek review in the Court of
Appeal — and provides clarity as to when a party must file a
petition for writ of review. (Zurich, at p. 1235.)
Here, the Court of Appeal took the position that Assembly
Bill 171, which was enacted and took effect shortly after Zurich,
“essentially ratified Zurich’s interpretation of the governing
statutes.” (Mayor, supra, 104 Cal.App.5th at p. 1311; see also
id. at p. 1312 [changing the trigger date of the 60-day deadline
from the date of a petition’s filing to the date of transmission of
the case file to the Appeals Board “is a tacit acquiescence to
Zurich’s interpretation of former section 5909’s rule as
mandatory, since if the deadline was not mandatory and the
Board’s practice was permissible there would have been no
reason to alter the deadline”].) In rejecting the notion that a
party has a due process right to a decision on the merits of the
petition once they have filed a petition for reconsideration, the
Court of Appeal observed that the goal of the workers’
compensation system is “substantial, but expeditious, justice” so
“opposing parties need not subordinate their rights to prompt

10
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

resolution of disputes to accommodate open-ended delays that
the Board claims are necessary for it to rule on petitions for
reconsideration.” (Id. at p. 1315; see also Zurich, supra, 97
Cal.App.5th at p. 1237.)
B. Section 5909 Does Not Implicate the Appeals
Board’s Fundamental Jurisdiction
It is undisputed that the Appeals Board did not take any
action on Ross Valley’s petition for reconsideration within the
60-day period in the operative version of section 5909. The
question presented is whether the Appeals Board may apply
equitable tolling to extend its own statutory deadline to act on a
petition for reconsideration. This requires us to address two
underlying issues: whether the statutory deadline is
jurisdictional; and, if it is not, whether the Legislature intended
to preclude equitable tolling. (See Law Finance Group, LLC v.
Key (2023) 14 Cal.5th 932, 949, 952–953 (Law Finance).) The
Appeals Board argues that it was permissible to grant Ross
Valley’s petition for reconsideration after the 60-day deadline
passed because the statutory deadline is not jurisdictional and
is subject to equitable tolling. Mayor, in contrast, contends that
the deadline in the operative version of section 5909 is both
mandatory and jurisdictional and not subject to equitable
tolling.
We conclude that section 5909 does not implicate the
Appeals Board’s fundamental jurisdiction. We also conclude

11
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

that the Appeals Board lacks the authority to toll its own
deadline to act.4
Whether the version of section 5909 at issue in this case is
subject to equitable tolling and whether the statutory deadline
is jurisdictional are questions of statutory construction that we
review de novo. (See Department of Corrections &
Rehabilitation v. Workers’ Comp. Appeals Bd. (2025) 17 Cal.5th
510, 520.) “We employ familiar principles in this enterprise. We
begin with the text, considering the ordinary meaning of the
statutory language as well as the text of related provisions,
terms used elsewhere in the statute, and the structure of the
statutory scheme. [Citation.] If the text is clear, we must give
effect to it. If, however, the text is ambiguous, we may consult
extrinsic sources, including the legislative history. [Citation.]
In ascertaining the statutory meaning, we accord appropriate
weight to the interpretations adopted by the Workers’
Compensation Appeals Board in the course of official
proceedings.” (Id. at pp. 520–521; see also Larkin v. Workers’
Comp. Appeals Bd. (2015) 62 Cal.4th 152, 157–158.) But “[i]f

4
Amici curiae Mashallah Ishal and American Property
Casualty Insurance argue that the Appeals Board’s procedure of
issuing a perfunctory order granting a petition for
reconsideration to allow itself an opportunity to study the
factual and legal issues further (known as a “grant-for-study
order”) is not an appropriate method to resolve such petitions
because the statutory scheme requires a decision on the merits
to be made within the 60-day statutory period pursuant to
section 5908.5, so any petition for reconsideration resulting in
such an order should be deemed denied by operation of law. We
express no opinion on the propriety of the grant-for-study
practice or whether the Appeals Board is required to issue a
final decision on the merits within the 60-day statutory period
pursuant to section 5908.5.

12
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

the agency’s interpretation is clearly erroneous or unauthorized
under the statute, we will not give effect to its understanding of
the statute.” (Larkin, at p. 158.)
“As we have often observed, ‘the term “jurisdiction” has
“many different meanings.” ’ ” (Law Finance, supra, 14 Cal.5th
at p. 949.) In this case, we are concerned with jurisdiction in its
fundamental sense. “ ‘ “[F]undamental jurisdiction cannot be
conferred by waiver, estoppel, or consent. Rather, an act beyond
a court’s jurisdiction in the fundamental sense is null and void”
ab initio.’ ” (Kabran v. Sharp Memorial Hospital (2017) 2
Cal.5th 330, 339 (Kabran).) “In other words, when a party fails
to comply with a jurisdictional time bar, the court has no choice
but to dismiss the case for lack of jurisdiction, even if equitable
concerns would support reaching the merits.” (Law Finance, at
p. 950.)
“ ‘Even when a court has fundamental jurisdiction,
however, the Constitution, a statute, or relevant case law may
constrain the court to act only in a particular manner, or subject
to certain limitations.’ [Citation.] We have described courts
that violate procedural requirements, order relief that is
unauthorized by statute or common law, or otherwise ‘ “fail[] to
conduct [themselves] in the manner prescribed” ’ by law as
acting ‘ “in excess of jurisdiction.” ’ ” (Kabran, supra, 2 Cal.5th
at pp. 339–340.)
Given the “harsh consequences” of jurisdictional time
bars, “we apply a ‘presumption that statutes do not limit the
courts’ fundamental jurisdiction absent a clear indication of
legislative intent to do so.’ [Citations.] This approach reflects
‘ “a preference for the resolution of litigation and the underlying
conflicts on their merits by the judiciary.” ’ ” (Law Finance,

13
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

supra, 14 Cal.5th at p. 950.) Thus, even if a statute contains
mandatory language, we will not assume it implicates a court’s
fundamental jurisdiction; instead, “our Legislature ‘must do
something special, beyond setting an exception-free deadline,’ ”
to designate a statute as jurisdictional. (Ibid.) “[J]urisdictional
rules are mandatory, but mandatory rules are not necessarily
jurisdictional.” (Kabran, supra, 2 Cal.5th at p. 342.)
“Legislative intent that a time limit be jurisdictional may
be signaled where the statute sets forth time limits in ‘unusually
emphatic form,’ by ‘reiterat[ing] its limitations several times in
several different ways,’ or, for example, by asserting that ‘ “no
[relief] shall be allowed or made after the expiration of the
period of limitation prescribed . . . unless a claim . . . is filed . . .
within such period.” ’ ” (Kabran, supra, 2 Cal.5th at p. 343,
quoting United States v. Brockamp (1997) 519 U.S. 347, 350–
351.)
Statutes we have found to “include such clear markers of
legislative intent that their respective deadlines are
jurisdictional” include the deadlines in the Code of Civil
Procedure to file a notice of intent to seek a new trial and for the
court to rule on a motion for new trial. (Kabran, supra, 2 Cal.5th
at p. 344; see Code Civ. Proc., §§ 659, subd. (b) [deadlines to file
a notice of intention to move for a new trial “shall not be
extended by order or stipulation”], 660, subd. (c) [“the power of
the court to rule on a motion for new trial shall expire 75 days
after the mailing of notice of entry of judgment . . . or 75 days
after service . . . of written notice of entry of judgment”], italics
added.) In Kabran, we distinguished the language in these
statutes from the language in Code of Civil Procedure section
659a, which sets a related deadline for a moving party to file
briefs and accompanying documents in support of the motion for

14
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

new trial of “[w]ithin 10 days of filing the notice.” We held Code
of Civil Procedure section 659a was not jurisdictional because it
did not have similar language or such “clear limits on
jurisdiction” as Code of Civil Procedure sections 659,
subdivision (b) and 660, subdivision (c), and because section
659a had “no ‘ “consequence or penalty” ’ for noncompliance with
the affidavit filing deadlines.” (Kabran, at p. 344.)
We conclude that section 5909 does not implicate the
Appeals Board’s fundamental jurisdiction. While petitions for
reconsideration in the workers’ compensation context function
similarly to civil motions for a new trial, we discern no language
in section 5909 that is similar to the clear jurisdictional
language in Code of Civil Procedure sections 659, subdivision (b)
and 660, subdivision (c). Former section 5909 neither expressly
mentions jurisdiction nor deprives the Appeals Board of the
power to act after the 60-day period. The plain language of the
statute simply sets a timeline for the Appeals Board to act on a
petition for reconsideration and the triggering date for the 45-
day window for a petitioner to file a writ petition with the Court
of Appeal. Thus, the Appeals Board’s issuance of a grant-for-
study order after the 60-day period expired was in excess of its
jurisdiction, but the Appeals Board did not lack fundamental
jurisdiction to issue the order after the period ended.
Statutory context supports this conclusion. Section 5803
expressly provides that the Appeals Board “has continuing
jurisdiction over all its orders, decisions, and awards made and
entered under the provisions of this division . . . . At any time,
upon notice and after an opportunity to be heard is given to the
parties in interest, the appeals board may rescind, alter, or
amend any order, decision, or award, good cause appearing
therefor.” This continuing jurisdiction is limited by section

15
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

5804, which provides in part that “[n]o award of compensation
shall be rescinded, altered, or amended after five years from the
date of the injury except upon a petition by a party in interest
filed within such five years and any counterpetition seeking
other relief filed by the adverse party within 30 days of the
original petition raising issues in addition to those raised by
such original petition.” The broad grant of continuing
jurisdiction in section 5803, limited only by the five-year
deadline in section 5804, indicates that the Appeals Board is not
deprived of fundamental jurisdiction when the 60-day period in
section 5909 expires.
The legislative history of section 5909 also does not
suggest any intent to deprive the Appeals Board of fundamental
jurisdiction to act on a petition for reconsideration more than 60
days from its filing. As the Appeals Board observes, when
section 5909 was enacted, workers’ compensation matters,
including rehearing petitions, were handled by a single agency:
the Industrial Accident Commission. Section 5909 originally
provided: “A petition for rehearing is deemed to have been
denied by the commission unless it is acted upon within thirty
days from the date of filing. The commission may, upon good
cause being shown therefor, extend the time within which it may
act upon such petition for not exceeding thirty days.” (Former
§ 5909, Stats. 1937, ch. 90, p. 304.)
In 1965, the Legislature created the Appeals Board and
the DWC. It provided the Appeals Board with authority over
judicial functions and charged the DWC with administration,
including employment of workers’ compensation judges. (See
former § 110, subd. (a), Stats. 1965, ch. 1513, p. 3556; former
§ 111, Stats. 1965, ch. 1513, p. 3557; former § 123, Stats. 1965,
ch. 1513, p. 3559.) Significantly, even though the Legislature

16
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

created two different bodies, it did not substantively amend the
deadline or procedures for petitions for reconsideration set forth
in section 5909.
In 1992, the Legislature amended the statute to the
version at issue here. The statute omitted the 30-day extension
period and extended the time for the Appeals Board to act on
petitions for reconsideration to 60 days. (Stats. 1992, ch. 1226,
§ 5909, p. 5766; see also Legis. Counsel’s Dig., Assem. Bill No.
3758 (1991–1992 Reg. Sess.), p. 2.) From the statute’s original
enactment, the triggering date for the Appeals Board to act was
consistently the filing date of a petition for reconsideration —
even after it became clear to courts that the workers’
compensation “system ha[d] become . . . inefficient.” (Shipley,
supra, 7 Cal.App.4th at p. 1108.)
In 2024, the Legislature for the first time changed the
triggering date of the 60-day period to act on a petition for
reconsideration from the date of filing to the date the trial judge
transmits the petition to the Appeals Board. (Stats. 2024,
ch. 52, § 27.) The Legislature observed, “[e]xisting law provides
[that] . . . a petition for reconsideration is automatically
considered denied if the [Appeals Board] does not to [sic] take
action within 60 days from the date the petition was filed.”
(Assem. Com. on Budget, Concurrence in Sen. Amends. to
Assem. Bill No. 171 (2023–2024 Reg. Sess.) as amended June
22, 2024, p. 1, italics added.) The Legislature additionally
described the effect of Assembly Bill 171 as simply “modif[ying]
procedures by which the appeals board must act on a petition
for reconsideration” (Sen. Rules Com., 3d reading analysis of
Assem. Bill No. 171 (2023–2024 Reg. Sess.) as amended June
22, 2024, p. 2) by “deem[ing] a petition for reconsideration to
have been denied by the WCAB unless it is acted upon by the

17
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

appeals board within 60 days from the date a trial judge
transmits a case to the appeals board.” (Assem. Com. on Budget,
Concurrence in Sen. Amends. to Assem. Bill No. 171, supra, as
amended June 22, 2024, p. 1.)
Mayor argues the 2024 amendment to former section 5909
establishes that the statute is jurisdictional by indicating a
legislative response to Zurich. We are not persuaded. There is
no mention of fundamental jurisdiction in the legislative history
of Assembly Bill 171. To the contrary, the legislative history
indicates the Legislature acquiesced to Zurich’s interpretation
of section 5909 as mandatory and merely intended to implement
a “short-term fix to the Board’s need for resources to meet
former section 5909’s deadline.” (Mayor, supra, 104 Cal.App.5th
at p. 1312.) Further, the 2024 amendment to the statute, like
prior versions of the statute at issue here, does not contain any
express language depriving the Appeals Board of power to act
after the 60-day deadline.
Mayor notes that the statutes governing the deadline to
file a petition for reconsideration (§ 5900, subdivision (a)), the
deadline for the Board to grant reconsideration on its own
motion (§ 5900, subdivision (b)), and the deadline to file a
petition for writ of review (§ 5950) in the reconsideration scheme
have been found to be jurisdictional. (See, e.g., United States
Pipe & Foundry Co. v. Industrial Acc. Com. (1962) 201
Cal.App.2d 545, 549, 550 [holding § 5900, subd. (b) is
jurisdictional]; Camper v. Workers’ Comp. Appeals Bd. (1992)
3 Cal.4th 679, 686 (Camper) [holding § 5950 is jurisdictional].)
We observed in Kabran that a deadline might be jurisdictional
if it forms an “interconnected timing scheme” with other
jurisdictional deadlines. (Kabran, supra, 2 Cal.5th at p. 344.)
Unlike section 5909, however, the plain language of sections

18
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

5900, subdivision (a) and 5950 “include such clear markers of
legislative intent that their respective deadlines are
jurisdictional.” (Kabran, at p. 344.) Specifically, section 5900,
subdivision (a), states that petitions for reconsideration “shall
be made only within the time and in the manner specified in this
chapter.” (Italics added.) Moreover, section 5950 permits a
party to file a petition for writ of review “within the time limit
specified in this section” and any petition “must be made within
45 days after a petition for reconsideration is denied, or, if a
petition is granted . . . within 45 days after the filing of the
order, decision, or award following reconsideration.” (Italics
added.) No similar emphatic language is present in section
5909. “It is significant that the Legislature, while using
language to identify [a] closely related time limitation[] in this
set of statutes as jurisdictional, did not use similar language
with regard to the” deadline to act upon a petition for
reconsideration. (Kabran, at p. 344.) It is true that, like section
5909, section 5900, subdivision (b) does not contain emphatic
language indicating that the deadline was intended to be
jurisdictional. But United States Pipe is not a decision of this
court and did not consider the statutory context or legislative
history that we have considered here, which demonstrate that
the 60-day period in section 5909 is a mandatory procedural
deadline rather than a limit on the Board’s fundamental
jurisdiction.
Mayor also argues that in J.M. v. Huntington Beach Union
High School Dist. (2017) 2 Cal.5th 648 and Bonnell v. Medical
Board (2003) 31 Cal.4th 1255 we held that Government Code
sections 911.6, subdivision (c) and 11521, subdivision (a) —
which require a court or agency to act within a certain
timeframe or the matter is deemed denied — are jurisdictional.

19
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

But we did not consider whether these statutes were
jurisdictional in the fundamental sense in these cases. In J.M.,
we found that equitable tolling was not warranted on its facts
when addressing whether a minor’s late claim application
against a public entity could proceed forward when minor’s
counsel failed to timely file a petition for relief in the superior
court after the application was deemed denied. (J.M., at pp.
651–652.) In Bonnell, we considered the amount of time a state
administrative agency can stay its decision pursuant to
Government Code section 11521, subdivision (a) in order to
review a duly-filed petition for reconsideration. (Bonnell, at p.
1258.) As “ ‘ “cases are not authority for propositions not
considered” ’ ” (B.B. v. County of Los Angeles (2020) 10 Cal.5th
1, 11), these cases do not support Mayor’s argument that the
mere inclusion of “deemed to have been denied” language in
section 5909, without more, reflects a clear legislative intent to
render the statute jurisdictional.5

5
In another decision of this Court, Evans v. Workers’ Comp.
Appeals Bd. (1968) 68 Cal.2d 753, 755, we suggested in dicta
that the Board “retains jurisdiction” to issue a new decision on
reconsideration complying with section 5805.5 because it
originally granted reconsideration within the statutory time
period required by an earlier version of section 5909 (see Stats.
1965, ch. 1513, p. 3601, § 180). The issue in Evans was whether
it was a violation of section 5905.5 [requiring a statement of
reasons and evidence when the Appeals Board grants or denies
a petition for reconsideration] for the Board to grant
reconsideration and vacate a trial referee’s decision granting a
petition to reopen an employee’s workers’ compensation claim
without a statement of reasons. (Id. at pp. 754–755.) Like J.M.
and Bonnell, Evans is not determinative of whether section 5909
is jurisdictional because that question was not before this Court.

20
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

C. The Appeals Board May Not Equitably Toll
the Deadline to Act in Section 5909
Of course, “[e]ven if a statute of limitations is
nonjurisdictional, the Legislature still may preclude the court
from applying equitable doctrines like tolling and estoppel.”
(Law Finance, supra, 14 Cal.5th at p. 952.) “The doctrine [of
equitable tolling] allows our courts, ‘in carefully considered
situations’ [citation], to exercise their inherent equitable powers
to ‘soften the harsh impact of technical rules’ [citation] by tolling
statutes of limitations.” (Saint Francis Memorial Hospital v.
State Dept. of Public Health (2020) 9 Cal.5th 710, 724 (St.
Francis); see also id. at p. 729 [equitable tolling “applies only ‘in
carefully considered situations to prevent the unjust technical
forfeiture of causes of action’ ”].) It is not “ ‘a cure-all for an
entirely common state of affairs.’ ” (Id. at p. 724; Law Finance,
at p. 954 [same]; see also Lantzy v. Centex Homes (2003) 31
Cal.4th 363, 370 [tolling only applies “in carefully considered
situations to prevent the unjust technical forfeiture of causes of
action”].)
As with our jurisdictional analysis, we examine the
statutory text and the legislative purpose of the statutory
scheme, as either or both may indicate a legislative intent to
prohibit equitable tolling. (See Law Finance, supra, 14 Cal.5th
at p. 953; see also Lantzy, supra, 31 Cal.4th at p. 371 [“equitable
tolling should not apply if it is ‘inconsistent with the text of the
relevant statute’ ”]; St. Francis, supra, 9 Cal.5th at p. 720.)
We conclude that the Appeals Board’s practice of self-
tolling the 60-day deadline in section 5909 is not supported by
the plain language of the statute or its purpose. The statute
does not expressly permit the Appeals Board to consider a
petition for reconsideration outside of the 60-day statutory

21
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

period or to equitably toll the 60-day deadline. To the contrary,
the statute’s plain language cuts off any further action by the
Appeals Board after 60 days by deeming petitions for
reconsideration denied by operation of law if the Board does not
take action within that timeframe.
The statute’s plain language indicates that its purpose is
to limit the time for the Appeals Board to act so that petitions
for reconsideration do not languish. (See Zurich, supra, 97
Cal.App.5th at p. 1235.) This purpose is inconsistent with
equitable tolling, particularly when the basis for the tolling is
the Appeals Board’s own inefficiency or neglect.
We acknowledge that the purpose of the Workers’
Compensation Act generally is not limited to the expeditious
resolution of workers’ compensation cases. The Act is also
intended to “accomplish substantial justice in all cases . . .
inexpensively, and without incumbrance of any character.”
(Cal. Const., art. XIV, § 4.) Permitting the Appeals Board to
engage in the practice of self-tolling, however, impacts all
litigants. This case is instructive. Mayor’s award of total and
permanent disability occurred in March 2023 and, as Mayor’s
counsel confirmed at oral argument, Mayor has not received any
compensation since that time even though the deadline for Ross
Valley to file a writ petition pursuant to section 5950 expired on
July 6, 2023. The Appeals Board’s practice of self-tolling opens
the door to open-ended extensions of the time for the Board to
act on reconsideration petitions, undermining the purpose of
Article 14, section 4 of the California Constitution.
The 2024 amendment to section 5909 supports our
conclusion that the statute is not subject to equitable tolling by
the Appeals Board. By changing the trigger date for the 60-day

22
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

deadline from the date a petition is filed to the date a petition is
transmitted to the Appeals Board, the Legislature has
demonstrated that it understands the distinction between these
dates and knows what language to use if it wishes for the
Appeal’s Board’s timeline to act to run from a petition’s
transmission date. The Legislature did not use such
accommodating language in the version of section 5909 at issue
here.
More fundamentally, the Appeals Board misapprehends
the doctrine of equitable tolling in two ways: who may assert
tolling; and the type of deadline that may be tolled. As we have
observed, equitable tolling excuses litigants from filing
deadlines such as statutes of limitations. (See St. Francis,
supra, 9 Cal.5th at pp. 719–720.) “ ‘Statute of limitations’ is the
collective term applied to acts or parts of acts that prescribe the
periods beyond which a plaintiff may not bring a cause of
action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th
797, 806.) The Appeals Board is neither a party nor a litigant
in workers’ compensation proceedings. Nor is former section
5909 a statute of limitations, as it does not fix the time by which
a party or a litigant must bring a claim or cause of action.
Instead, the 60-day period merely sets a timeline for the Board
itself to act. We are not aware of any precedent applying
equitable tolling to decisional deadlines imposed on an
adjudicative body.
The elements and history of the equitable tolling doctrine
also demonstrate that the doctrine does not apply in this case.
The doctrine has three elements: “[(1)] timely notice [of
plaintiff’s claims] to the defendant, [(2)] lack of prejudice to the
defendant, and [(3)] reasonable and good faith conduct by the
plaintiff.” (St. Francis, supra, 9 Cal.5th at p. 726, italics added;

23
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

see also id. at p. 724.) Ross Valley, as the petitioner, is not
seeking tolling of a deadline applicable to it; instead, the
Appeals Board is tolling its own deadline to act. Further, Ross
Valley did not cause any delay, so the reasonableness of its
conduct is not at issue or dispositive and would not facilitate
tolling here.
The Board maintains that Shipley permits it to equitably
toll the 60-day deadline to act on a rehearing petition whenever
it does not receive the petition within the 60-day period,
regardless of the reason. Shipley, however, involved due
process, not equitable tolling. In Shipley, an employee timely
petitioned for reconsideration, but the Appeals Board failed to
act on the petition within the 60-day statutory deadline.6
(Shipley, supra, 7 Cal.App.4th at p. 1106.) The employee
inquired about the status of the petition after the deadline
expired, and an Appeals Board clerk represented that the file
had inadvertently been sent to archives. (Ibid.) The Board
requested the file’s return. Over the course of several months,
the employee inquired twice more about the status of the
petition, and after another unsuccessful attempt to request the
file, the employee was ultimately allowed to reconstruct a
duplicate file. (Id. at pp. 1106–1107.) Throughout this time, the
employee “received reassurances from the board that his
petition would be considered either after his file was found or

6
At that time, section 5909 provided, “A petition for
reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 30 days from the date of
filing. The appeals board may, upon good cause being shown
therefor, extend the time within which it may act upon such
petition for not exceeding 30 days.” (Stats. 1965, ch. 1513,
p. 3601, § 180.)

24
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

after he reconstructed a duplicate file.” (Id. at p. 1108.)
Nonetheless, the Appeals Board denied the petition, concluding
it had been denied by operation of law pursuant to section 5909
since no action had been taken on the petition within the
statutory time period. (Id. at p. 1107.)
The Shipley court held that “the time period after which a
petition for reconsideration is deemed denied by operation of law
was tolled while the board misplaced [employee’s] file and led
him to believe his petition would eventually receive
consideration.” (Shipley, supra, 7 Cal.App.4th at p. 1107.) In so
holding, the court relied on the Constitutional directive that
administration of workers’ compensation legislation
“ ‘accomplish substantial justice in all cases expeditiously,
inexpensively, and without incumbrance of any character’ ” and
section 3202’s mandate to liberally construe the Workers’
Compensation Act “ ‘with the purpose of extending their benefits
for the protection of persons injured in the course of their
employment.’ ” (Ibid.) It observed that “the time periods must
be based on a presumption that a claimant’s file will be available
to the board; any other result deprives a claimant of due process
and the right to a review by the board.” (Ibid., italics added.)
After emphasizing that the petitioner acted reasonably, the
Shipley court concluded, “[Petitioner’s] right to reconsideration
by the board is likewise statutorily provided and cannot be
denied him without due process. Any other result offends not
only elementary due process principles but common
sensibilities. [Petitioner] is entitled to the board’s review of his
petition and its decision on its merits.” (Id. at p. 1108.)
While the Shipley court held the deadline “after which a
petition for reconsideration is deemed denied by operation of law
was tolled” (Shipley, supra, 7 Cal.App.4th at p. 1107), it never

25
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

mentioned the equitable tolling doctrine or considered or
applied the elements of equitable tolling to the facts. Instead,
Shipley reasoned that a party petitioning for reconsideration
had a statutory right to review by the Appeals Board, and the
petitioner was denied that right without due process due to the
Appeals Board’s failure to review the petition and its
misrepresentations that it would do so. As Shipley did not
consider the equitable tolling doctrine, it does not support the
Appeals Board’s argument that it may equitably toll its deadline
to act on a reconsideration petition when it does not receive the
petition within the 60-day statutory period.
Apart from the unique facts of Shipley, there may be other
circumstances in which the failure to rule on a timely-filed
reconsideration petition would raise due process concerns. But
as this and other recent cases demonstrate, the Appeals Board
has routinely invoked Shipley as a workaround to address a
recurring, systemic problem with the Board’s functioning — the
Board’s failure to implement processes that would ensure it
receives the petition for reconsideration or the case file in a
timely manner. (See Zenith, supra, 118 Cal.App.5th at p. 518,
review granted; City of Salinas, supra, 113 Cal.App.5th at
pp. 810–811, review granted; see also Shipley, supra, 7
Cal.App.4th at p. 1108 [observing the Appeals Board has noted
its awareness of “ ‘situations . . . where . . . petitions were not
processed at the district office and thus never reached the
Appeals Board resulting in a denial by operation of law’ ”].)
Even if these circumstances presented due process concerns,
such longstanding failures, without more, do not justify a self-
administered remedy that permits the Board to routinely toll its
own statutory deadline to act, rather than a filing deadline
applicable to a litigant.

26
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

Moreover, it is the petitioner, as the party adversely
affected by the denial of their petition for reconsideration, who
must assert their due process rights, not the administrative
board that is tasked with ruling on the petition. Here, the
Appeals Board purported to rely on Shipley to act outside of the
statutory 60-day period simply because it received the file after
the deadline passed due to an unspecified administrative
irregularity. Ross Valley has not asserted that its due process
rights were violated. We therefore need not decide what
circumstances, if any, would give rise to a due process violation
when a timely-filed petition for reconsideration is deemed
denied by operation of law. As a general rule, under the
operative version of section 5909, a petition for reconsideration
will be denied by operation of law if not acted upon within 60
days of the date of filing. Thereafter, a petitioner will have 45
days to file a writ petition with the Court of Appeal.
The Appeals Board goes further, arguing that due process
requires a decision on the merits of every timely-filed petition for
reconsideration. Relatedly, the Appeals Board maintains that
the denial of a petition for reconsideration by operation of law
violates section 5908.5, which states, “[a]ny decision of the
appeals board granting or denying a petition for reconsideration
. . . shall be made by the appeals board and not by a workers’
compensation judge and shall be in writing, signed by a majority
of the appeals board members assigned thereto, and shall state
the evidence relied upon and specify in detail the reasons for the
decision.”
The Appeals Board’s arguments ignore the plain language
of section 5909 and would render the statute superfluous. “We
seek to avoid ‘interpretations that render any language
surplusage.’ ” (Brennon B. v. Superior Court (2022) 13 Cal.5th

27
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

662, 691.) The plain language of the operative version of section
5909 clearly indicates that the Legislature contemplated a
petition for reconsideration would be deemed denied if not acted
upon within 60 days of its filing. “[W]e may not broaden or
narrow the scope of [a] provision by reading into it language that
does not appear in it or reading out of it language that does.”
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545.) Deemed
denied provisions are relatively common (see, e.g., Gov. Code
§§ 911.6, subd. (c) & 11521, subd. (a)), and it would be surprising
if, as the Appeals Board implies, such provisions were
unconstitutional simply because a petition or application is
denied by operation of law due to inaction.
The Appeals Board’s argument also ignores the applicable
regulation providing that the WCJ’s decision is the final decision
of the Appeals Board unless reconsideration is granted. (Cal.
Code Regs., tit. 8, § 10330.) We therefore reject the notion that
all timely-filed petitions for reconsideration must be decided on
their merits. The Legislature’s decision to deem a petition for
reconsideration denied if not acted upon within 60 days of its
filing is a constitutional exercise of its “plenary power . . . to
create . . . and enforce a complete system of workers’
compensation . . . to the end that the administration of such
legislation shall accomplish substantial justice in all cases
expeditiously, inexpensively, and without incumbrance of any
character.”7 (Cal. Const., art. XIV, § 4, italics added.)

7
We disapprove of Shipley v. Workers’ Comp. Appeals Bd.,
supra, 7 Cal.App.4th 1104 to the extent it suggests that all
parties necessarily have a due process right to Board review of
a petition for reconsideration after the 60-day deadline in

28
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

We rejected the Board’s interpretation of section 5908.5 in
Le Vesque v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 627.
In that case, the issue was whether the Appeals Board could
adopt the report and recommendation of a referee in denying a
petition for reconsideration. This Court concluded the answer
was yes, as long as the report made the basis for the decision
reasonably clear. (Id. at p. 629.) In reaching this conclusion, we
emphasized that “we must read section 5908.5 together with
section 5909.” We observed that by permitting a petition for
reconsideration to be denied through inaction in section 5909,
“[t]he Legislature has . . . provided that . . . the appeals board
need not detail its factual and rational basis for so doing.” (Id.
at pp. 634–635.) We continued: “It is true that upon first glance
[that] section 5908.5 apparently imposes the same requirements
of detailed factual findings and statement of reasons upon the
appeals board when it acts after reconsideration as when it
denies a petition for reconsideration. But reading and
construing sections 5909 and 5908.5 together we cannot believe
the Legislature intended by section 5908.5 to require detailed
findings and reasons upon a denial of reconsideration if the
appeals board can avoid the requirement so easily under section
5909.” (Id. at p. 635, fn. 11, italics added.) Thus, section 5908.5
does not prohibit the denial, under section 5909, of petitions for
rehearing by mere inaction.
We recognize that once a reconsideration petition has been
denied by operation of law, a petitioner’s remaining route is by

section 5909. More is required to establish a due process
violation resulting from the failure to timely rule on a petition
for reconsideration than the simple filing of a reconsideration
petition and the expiration of the statutory deadline to act.

29
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

way of a petition for writ of review before the Court of Appeal,
and a reviewing court considering such a petition for writ of
review is constrained by its limitations on review. (See § 5952.)
The statutory deadline in section 5909 creates certainty with
respect to the deadline to file a petition for writ of review and
when a workers’ compensation award is final. The Appeals
Board’s practice of equitable self-tolling undermines this
certainty.
D. The Court of Appeal Acted Appropriately in
Issuing a Writ of Mandate
The Appeals Board last argues the Court of Appeal erred
in issuing a writ of mandate rescinding the order granting
reconsideration. It maintains that its August 2023 order
granting reconsideration was not final and therefore Mayor had
suffered no injury that was redressable by petition for writ of
mandate. The Board further maintains that Mayor had a plain,
speedy, and adequate remedy at law in the form of a petition for
writ of review from the Board’s final decision granting the
petition for reconsideration on the merits.8
“To obtain [writ] relief, a petitioner must demonstrate
(1) no ‘plain, speedy, and adequate’ alternative remedy exists
(Code Civ. Proc., § 1086); (2) ‘ “a clear, present . . . ministerial

8
The Appeals Board reads the Court of Appeal’s decision as
conflating administrative mandate with traditional mandate.
But the Court of Appeal did not refer to administrative mandate
and noted that a writ is appropriate in cases where mandamus
is available under Code of Civil Procedure section 1085. The
Appeals Board agrees that traditional mandate is available to,
inter alia, “compel the performance of an act which the law
specifically enjoins.” (Code Civ. Proc., § 1085, subd. (a), italics
added.) Accordingly, there is no indication that the Court of
Appeal conflated administrative and traditional mandamus.

30
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

duty on the part of the respondent” ’; and (3) a correlative
‘ “clear, present and beneficial right in the petitioner to the
performance of that duty.” ’ [Citation.] A ministerial duty is an
obligation to perform a specific act in a manner prescribed by
law whenever a given state of facts exists, without regard to any
personal judgment as to the propriety of the act.” (People v.
Picklesimer (2010) 48 Cal.4th 330, 340.)
Mayor has no available alternative remedy. As Mayor
contended below, the operative version of section 5909 imposed
a duty on the Appeals Board to act, if at all, within 60 days of
the filing of a petition for reconsideration. This duty is a
ministerial act contingent only on the timely filing of a petition
for reconsideration. If Mayor establishes that the Appeals
Board violated its statutory duty by granting reconsideration
after the 60-day period expired, the Court of Appeal may issue
a writ directing the Appeals Board to rescind its order granting
reconsideration. We therefore conclude that a petition for writ
of mandate filed in the Court of Appeal is the proper way for an
affected party to enforce section 5909.
The Court of Appeal found writ relief was not premature
because the Appeals Board granted reconsideration, asserted
jurisdiction, and ruled on the merits of the reconsideration
petition in the August 2023 order and subsequent February
2024 order. We agree. Mayor’s petition for writ relief addressed
the Appeals Board’s assertion of jurisdiction and whether the
Appeals Board violated a duty to abide by the statute when it
granted reconsideration after the 60-day period expired. Thus,
Mayor’s writ petition is appropriate because it challenged the
Appeals Board’s election to act on the petition for
reconsideration after it was deemed denied by operation of
law — a purely legal issue of broad importance. (See, e.g.,

31
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328
[extraordinary relief is warranted “because ‘ “the issues
presented are of great public interest and must be resolved
promptly” ’ ”].) In any event, even if the writ petition was
premature at the time it was filed, it is undisputed that it was
no longer premature after the Appeals Board issued its
February 2024 order.
We also are not persuaded that a petition for writ of review
following a final decision on a petition for reconsideration would
constitute an adequate remedy at law in this context. Mayor
argued below that he had a right to the expeditious
determination of his entitlement to workers’ compensation
benefits. Mayor should not be compelled to wait until an
unspecified future date to pursue a petition for writ of review in
an effort to enforce his award when he is not challenging the
merits of the reconsideration order. Moreover, writ relief is the
only way for Mayor to enforce the 60-day deadline in section
5909, a deadline that “protect[s] his right to an expeditious end
to workers’ compensation proceedings.” (Mayor, supra, 104
Cal.App.5th at p. 1310.) We agree with the Court of Appeal that
this right would be “meaningless if Mayor were forced to wait to
enforce it for months or years until the conclusion of further
proceedings.” (Ibid.)9

9
We note that Mayor’s writ petition would have been more
properly brought as a writ of prohibition. (See C.S. Smith
Metropolitan Market Co. v. Superior Court (1940) 16 Cal.2d 226,
228 [“The function of the writ of prohibition is to provide a
remedy when rigidity of the ordinary procedure fails to protect
a litigant from the wrongful exercise of jurisdiction by a court”];
Code Civ. Proc., § 1102 [“The writ of prohibition arrests the

32
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

The Appeals Board expresses concern that writ petitions
in nonfinal cases will divert Board resources and delay other
pending cases. We express no view on the Appeals Board’s
policy argument. This argument is best directed to the
Legislature, which is free to amend the statute if it wishes to do
so. Indeed, as we have already observed, the Legislature has
elected to eliminate the sunset provision in the 2024 version of
section 5909 and retain the trigger date for the Appeals Board
to act on a petition for reconsideration as the date the trial judge
transmits the case to the Appeals Board. (See Legis. Counsel’s
Dig., Sen. Bill No. 171 (2025–2026 Reg. Sess.) as amended July
13, 2026, p. 3.) “Our task is to give effect to the statute as we
find it.” (Haggerty v. Thornton (2024) 15 Cal.5th 729, 741.)

proceedings of any tribunal . . . when such proceedings are
without or in excess of the jurisdiction of such tribunal”].)

33
 MAYOR v. WORKERS’ COMP. APPEALS BD.
Opinion of the Court by Evans, J.

III. DISPOSITION
Section 5909 serves an important function: it sets a
timeline for the Appeals Board to diligently act on petitions for
rehearing and provides clarity as to when the proceedings must
continue in the Court of Appeal. We therefore hold that the
Appeals Board may not equitably toll its own deadline to act on
such petitions. Accordingly, we affirm the judgment of the Court
of Appeal.10
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
KIM, J.*

10
As Ross Valley has not requested any relief before this
Court, we do not decide whether, or on what grounds, Ross
Valley may obtain relief or pursue a remedy under the
circumstances of this case.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

34
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion Mayor v. Workers’ Compensation Appeals Board
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 104 Cal.App.5th 1297
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________

Opinion No. S287261
Date Filed: August 24, 2026
__________________________________________________________

Court:
County:
Judge:
__________________________________________________________

Counsel:

Shoemaker Law Offices and Elizabeth Hudson for Petitioner.

Horvitz & Levy, Lisa Perrochet, Bradley S. Pauley and Benjamin P.
Covington for American Property Casualty Insurance Association as
Amicus Curiae on behalf of Petitioner.

DBL Law Group and Darren LeMontree for Mashallah Ishal as Amicus
Curiae on behalf of Petitioner.

Anne Schmitz, Allison Fairchild, Eric D. Ledger and Andrew A. Wood
for Respondents.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Elizabeth Hudson
Shoemaker Law Offices
150 Glen Cove Marina Road East, Suite 103
Vallejo, CA 94591
(707) 552-1000

Benjamin P. Covington
Horvitz & Levy LLP
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505
(818) 995-0800

Eric D. Ledger
Workers’ Compensation Appeals Board
455 Golden Gate Avenue, Floor 9
San Francisco, CA 94102
(415) 703-4580


CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

1 COMMUNITY COMPACT,
F089737
Plaintiff and Appellant,
(Super. Ct. No. 23CECG02740)
v.

CITY OF FRESNO, OPINION
Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
Law Offices of Brian C. Leighton and Brian C. Leighton for Plaintiff and
Appellant.
Aleshire & Wynder, Anthony R. Taylor and Michael R. Linden for Defendant and
Respondent.
-ooOoo-

SEE DISSENTING OPINION
 Emphasizing the “profound impact” of Mexican-American labor leader and civil
rights activist Cesar Chavez “on the people of Fresno” and concluding the renaming of a
downtown thoroughfare in his honor would “provide a source of pride and community
recognition,” the Fresno City Council (City Council) adopted Resolution No. 2023-056,
which facilitated the renaming of the “East Kings Canyon Road, East Ventura Avenue,
and West California Avenue alignment” (collectively, the Alignment) 1 to Cesar Chavez
Boulevard.
Plaintiff 1 Community Compact, an unincorporated association, filed a lawsuit
against defendant City of Fresno (City). Plaintiff’s operative complaint raised five causes
of action: (1) City’s invalid exercise of police power under article XI, section 7 of the
California Constitution; (2) denial of due process under the federal and state
Constitutions; (3) deprivation of free speech rights under the federal and state
Constitutions and City’s liability therefor (42 U.S.C. § 1983); (4) waste of public funds
(Code Civ. Proc., 2 § 526a); and (5) denial of equal protection under the federal and state
Constitutions. The superior court sustained City’s demurrer as to the due process, free
speech, and equal protection claims and then granted City’s motion for summary
judgment as to the police power and waste claims.
On April 30, 2025, plaintiff filed this appeal. It presented the following arguments
in its opening brief:
First, the superior court erroneously sustained City’s demurrer as to the free
speech claim because the renaming of the Alignment compelled plaintiff’s members who
reside or run a business on or near the Alignment “to carry or convey [City’s] preferred
ideological message.”

1 In this opinion, we use “East Kings Canyon Road,” “East Ventura Avenue,” or
“West California Avenue” when referring to a particular segment of the Alignment.
2 Unless otherwise indicated, subsequent statutory citations refer to the Code of
Civil Procedure.

2.
 Second, the superior court erroneously granted summary judgment as to the cause
of action for City’s invalid exercise of police power because (1) the renaming of the
Alignment “had no real or substantial relation to public health, safety, morals, or general
welfare” (boldface & capitalization omitted); (2) assuming, arguendo, pride and
community recognition constitute legitimate governmental objectives, the renaming did
not achieve these objectives; (3) the renaming substantially burdened only the residents
and business owners on or near the Alignment; and (4) City’s renaming procedure was
unfair.
Finally, the superior court erroneously granted summary judgment as to the cause
of action for waste of public funds because City “violated its police power and/or violated
the free speech rights of [plaintiff’s] members.”
On March 19, 2026, approximately three years after it adopted Resolution
No. 2023-056, City Council adopted Resolution No. 2026-42 “to begin the process to
remove the ‘Cesar Chavez Boulevard’ street signs” (some capitalization omitted) in light
of “credible historical sources and public statements [that] have brought renewed
attention to serious allegations regarding Cesar Chavez’s personal conduct, including
accusations of sexual misconduct and abusive behavior toward colleagues and members
of the farmworker community.” On April 23, 2026, City Council adopted Resolution No.
2026-61 reverting Cesar Chavez Boulevard back to the original street names. In a letter
brief, City contended the appeal should be dismissed as moot given these resolutions. In
another letter brief, plaintiff asserted this court has the discretion to decide the appeal
under the public interest exception.
For the reasons set forth below, we exercise our discretion under the public
interest exception to consider this appeal on the merits. (See In re William M. (1970) 3
Cal.3d 16, 23.) We conclude the superior court properly sustained City’s demurrer as to
plaintiff’s free speech claim because the renaming of the Alignment did not infringe on
plaintiff’s members’ free speech. We also conclude the court properly granted City’s

3.
summary judgment motion because (1) the renaming of the Alignment constituted a valid
exercise of City’s police power; and (2) section 526a was inapplicable. Therefore, we
affirm the judgments.
BACKGROUND

I. Context of the August 1, 2024 judgment of dismissal after the order
sustaining City’s demurrer in part
a. Contents of the operative complaint 3
The operative complaint alleges the following. The Alignment is composed of
three streets “decidedly historical to [City]’s rich history.” East Ventura Avenue, which
was named in 1873, “has always been the heart of [City’s] Armenian Community” and
“was known as Armenian Town.” West California Avenue, which was named in 1881, is
“the heart” of City’s African-American community. East Kings Canyon Road, which “is
over 70 years old,” “has always been known to residents and tourists alike as the gateway
to the Sierras and Kings Canyon National Park.” Cesar Chavez, who was “not a Fresno
native and never lived in Fresno,” “has never been integral to nor associated with any of
these [three] historical streets.” He was also a “divisive” and “objectionable political
figure” who “alienated many farmers, packing houses and grocery stores and retaliated
against those who did not join his union.”
Plaintiff “is an unincorporated grass roots association with [more than 1,000]
members who live, own, or operate a business on the historic … streets of [East] Kings
Canyon Rd., [East] Ventura Ave., or [West] California Ave., and/or who reside or have

3 Plaintiff filed an amended complaint on September 5, 2023, and a second
amended complaint, i.e., the operative complaint, on April 18, 2024. The record does not
contain the original complaint.
Since this appeal in part “arises from a dismissal following a demurrer, we rely on
[the operative] complaint … for a summary of the factual background” with respect to the
affected claims. (Gordon v. Law Offices of Aguirre & Meyer (1999) 70 Cal.App.4th 972,
975, fn. 2.) “We accept as true all properly pleaded allegations without concern for proof
problems.” (Ibid.)

4.
businesses in the immediate vicinity of said streets.” Plaintiff’s members viewed the
renaming of the Alignment as City’s attempt to “erase or rewrite” “their personal or
business history”; lamented “the enormous costs to each business or property owner,
operator, tenant, and residents when the street name is changed”; and stressed only they
were required to bear the “cultural and financial burden and impact in renaming [the
Alignment]” and “propagate, echo, and spread … City’s message [about Cesar Chavez].”
Many members who reside on or near the Alignment “intentionally purchased
their homes specifically because they were on those [three] streets and have lived there
most of their lives.” “Those street names are part of their identity, tradition, and
everyday lives” and members “had every reason to believe those street names would
remain the same, and never change.” As a result of the renaming, these members were
“uprooted and forever changed.” Furthermore, they needed to devote “substantial” “time
and expense” to change their addresses on “trusts, wills, insurances (vehicle, homeowner,
automobile etc.), social security checks, State or federal assistance income, medical or
education/school mailings or notices, bank and credit union accounts, credit card
companies, utilities, delivery services, property deeds, passports, driver licenses, property
tax statements, or legal descriptions, any professional licenses, loan documents,
mortgages, [Internal Revenue Service], Franchise Tax Board, Medi-Care, social security
data, stocks and bonds, data registrations, vehicle registrations, and other documents and
services requiring a correct address.”
Many members who own and/or operate businesses and property on the
Alignment “built their businesses specifically on one of those [three] streets, because of
its location, street name and the street’s reputation.” “The street name became part of
their identity and goodwill and were advantageous to their businesses, were part of their
sense of pride, and were proudly identifiable with them.” These members “had every
expectation that when they moved their business, or opened, or built their businesses on
one of those [three] streets, that the name would never change.” “The concept of, and

5.
identification with, Cesar Chavez [Boulevard] substantially impairs their goodwill and
identity, and business model, and will have the tendency to make the public and
customers believe they desired to have their business on Cesar Chavez [Boulevard] and
consented to it.” Moreover, “[f]or business owners a change of address is a very costly
and time-consuming project.” (Boldface omitted.) “Many will be required to remove
exterior or street-front signage, which costs thousands of dollars and will have a greater
impact if the street name is a part of the business name.” Addresses must be changed on
“bank accounts, loan documents, lease agreements, business licenses, business Articles of
Incorporation, Deeds and Titles to property, franchise agreements, business insurance,
both liability and property, California Secretary of State, [Internal Revenue Service] file
form 8822-B, U.S. post office changes, advertising and social media accounts,
notification to all vendors, employees and insurance carriers, data [terms of service] lines
and bank services, credit card companies, banking institutions, credit union, utility
service providers, including power and internet/data, any and all state licenses, payroll,
[human resources], retirement, [F]ranchise [T]ax [B]oard, Chamber of Commerce, water,
sewer, and electricity providers, vehicle registration, website domain information,
lengthy and uncontrolled updates with software mapping sites … , all landlord/business
and property owner or operator tenant contract agreements, and changes of address with
all vendors and other delivery operators,” which necessitated “pay[ing] for attorneys[]
and[/]or [certified public accountant]s.” “In addition, if the business address is listed on
the driver licenses, California IDs, Real California IDs, and passports those would have
to be changed, and the business owners would have to expect longer response time of
emergency service[s].”
Plaintiff questioned the renaming process. Under its rules and procedures for
meetings, City Council “permits items to be placed on the ‘consent calendar’ but only if
the items are ‘considered routine’ and ‘not controversial.’ ” However, in February 2022,
City Council placed on its consent calendar Resolution No. 2022-053, which endeavored

6.
to “change [East] Kings Canyon [Road] and [East] Ventura Ave[nue] to Cesar Chavez
Boulevard.” City Council purposely did this because the renaming “was very
controversial” and “driven by ideology and politics” and councilmembers “did not wish
to debate it, did not want the opposition to know about it, and already knew it would pass
it.” When it adopted the resolution, City Council agreed to form an advisory committee
“ ‘comprised of business owners and residents who will be affected by this Resolution’ ”
that “ ‘shall meet as needed.’ ” Yet, “no committee was ever formed,” “no meetings ever
occurred,” and City Council never explained this “course-reversal.” City Council also
did not “discuss or consider any alternative ways to ‘honor’ [Cesar] Chavez, or why it …
was necessary to rename a street, or an historical street, or two historical streets as was
the case here.”
In July 2022, a PowerPoint presentation “regarding the procedures for street name
changes” was “buried” within City Council’s meeting agenda. The presentation,
prepared by City’s public works department, “was directed at all [three] streets” even
though West California Avenue “was not even included in the February 2022 resolution”;
detailed “the street name changes would affect 775 parcels and 3,150 addresses”;
estimated the cost for “labor and materials to replace 260 signs would be $135,000.00”;
“mentioned as a process to engage in public outreach, public hearings before the Planning
Commission to consider a staff report and environmental documentation … , Public
Safety Review and ceremonial street naming options”; and “recommended to give notice
to all property owners and tenants located within a thousand feet” of the Alignment.
However, “[n]o notice was provided to the residents, its business and property owners
and operators impacted by the street name change” and City never engaged in the other
aforementioned actions.
In March 2023, City Council “buried” on its consent calendar Resolution
No. 2023-056, which directed City’s administration “to proceed with the renaming of [the
Alignment], which runs east to west between Marks Avenue and Temperance Avenue to

7.
‘Cesar Chavez Boulevard.’ ” City Council “never discussed nor considered alternative
forms to ‘honor’ [Cesar] Chavez, nor ever stated why it decided to add [West] California
Ave[nue] to the Renaming Project,” and “did not consult with police, fire or ambulance
services for their input and concerns for emergency service responses.” The resolution
“stated that notices would be sent to all property owners and tenants within 1,000 feet of
the affected areas via U.S. mail and[/]or by publication in the Fresno Bee,” but “[n]one of
the property owners, business owners, operators or tenants with businesses located on
[the Alignment] were notified by U.S. mail” and “City did not notify anyone by
publication in the Fresno Bee.” The resolution also “identified and allocated $1 million
dollars in the fiscal year 2022–2023 budget in conjunction with the Renaming Project ‘to
cover the application fees, labor and materials, replacement of existing street signs,
replacement of [California Department of Transportation] freeway signage,’ and
‘reimburse businesses whose addresses are impacted by the street name change for actual
and reasonable costs associated with the Renaming Project,” but “[t]here was no
allocation by … City for reimbursing residents, property owners, or other business
operators or tenants also affected” and “City provided no criteria for business
reimbursement, nor any statement as to who with … City would make that determination,
or any appeal process or hearing process for anyone who objected.”
Under the heading “First Cause of Action” (some capitalization omitted),
plaintiff alleged City invalidly exercised its police power because (1) “Cesar Chavez has
been honored already” (e.g., City’s Cesar Chavez Adult Education Center, a downtown
mural, and a statue at California State University, Fresno) and “any further recognition
[via the renaming of the Alignment] had no real or substantial relation to the public . . .
health, welfare, public safety, morals nor for any other valid Municipal purpose, and was
arbitrary, unreasonable, costly and capricious”; (2) “[e]ven if further honoring [Cesar]
Chavez was rationally in furtherance of a municipal power,” the renaming of the
Alignment significantly burdened plaintiff’s members and “less drastic measures were

8.
not even considered”; and (3) City “violate[d] [the] Due Process [and/]or the Free
Speech/Association clauses of the California and/or U.S. Constitutions.”
Under the heading “Second Cause of Action” (some capitalization omitted),
plaintiff alleged “Due Process requires that … City’s action be taken openly and that their
deliberations be conducted openly so that the people have confidence that the City
Council members are acting only for good and altruistic reasons and have no hidden
agendas,” but City “made no effort to notify the residents, property, and business owners
of what [it] proposed to do.” Plaintiff also alleged its members had “significant property
interests and goodwill and reputation in their businesses remaining on the street names
and community they specifically chose on which to live and conduct their businesses”;
“significant property and liberty interest[s] in residing in their homes they have lived in
for decades”; and “significant liberty interest[s] in remaining free from being forced to be
an everyday courier and mouthpiece for … City’s objectionable ideological and political
message of honoring [Cesar] Chavez.”
Under the heading “Third Cause of Action” (some capitalization omitted),
plaintiff alleged the renaming of the Alignment “denied Plaintiff the right to identify and
speak with the street address they chose” and “compel[led] Plaintiff’s members to speak
and write with a particular message by identifying themselves, their homes, and
businesses with a street name they did not choose and a name to which they adamantly
object, or with whom they do not wish to be associated.”
Under the heading “Fourth Cause of Action” (some capitalization omitted),
plaintiff alleged “City’s resolutions to spend substantial amounts of public money to
rename [the Alignment] to honor one of their icons [are] a waste of public funds” that
should be enjoined pursuant to section 526a.
Under the heading “Fifth Cause of Action” (some capitalization omitted),
plaintiff alleged the renaming of the Alignment “has singled out for disparate and
unequal protection and impact the residents and business owners/operators on those

9.
[three historic] streets which is a violation of the Equal Protection clauses of the U.S. and
California Constitutions ….”
b. City’s demurrer
On May 20, 2024, City filed a demurrer. Among other things, it contended:
(1) with respect to the due process claim, plaintiff’s members “did not have a material
right that could only be removed by due process of law in an adjudicatory proceeding”;
(2) with respect to the free speech claim, City was “unaware of any authority standing for
the proposition that changing a street name forces a property or business owner to ‘adopt’
a political message”; and (3) with respect to the equal protection claim, “Plaintiff does
not have a right or interest in a street name,” “this matter does not involve a protected
class such as race or religion,” and “[t]here was clearly a rational basis to honor Cesar
Chavez.”
c. Ruling
On July 31, 2024, the superior court issued a tentative ruling sustaining City’s
demurrer as to the due process, free speech, and equal protection claims without leave to
amend. The court concluded “these causes of action fail to identify how a right has been
impinged to constitute an actual controversy.” On the other hand, the tentative ruling
overruled City’s demurrer as to the police power and waste claims. On August 1, 2024,
following a hearing, the court adopted its tentative ruling.
II. Context of the February 26, 2025 judgment after the order granting
City’s summary judgment motion
a. City’s summary judgment motion
On November 19, 2024, City filed a motion for summary judgment as to the
remaining causes of action. City contended:
“The First Cause of Action for a violation of … City’s police powers
is without merit because … City had the power to rename the streets in
question and did not abuse its discretion in doing so. The undisputed
evidence demonstrates that there is no basis to conclude that … City
violated its police powers in renaming [West] California Avenue, [East]

10.
 Ventura [Avenue], and [East] Kings Canyon Road within the city limits to
Cesar Chavez Boulevard. State law provides that a city may rename a
street by resolution,[ 4] and there is nothing in the record that would lead to
the conclusion that this process was arbitrary, capricious, or not allowed by
law.
“The Fourth Cause of Action for a violation of … section 526a is
without merit because the street renaming was a political act that involved a
discretionary use of public funds. An action pursuant to Section 526a for
an alleged waste of public funds cannot be based on a politically-based
decision within a governing body’s discretion, and the undisputed evidence
demonstrates that the street renaming project was a political decision with a
discretionary outlay of budgeted funds.”
b. Undisputed material facts
The parties agreed on the following material facts:
On February 11, 2022, City’s clerk posted the agenda for City Council’s
February 17, 2022 regular meeting. Listed under the heading “Consent Calendar”
(boldface, underscoring & some capitalization omitted) was item 1.-AA.: Resolution
No. 2022-053 “[d]irecting [City’s] administration to present the processes to change
[East] Kings Canyon [Road]/[East] Ventura [Avenue] to ‘Cesar Chavez Boulevard’ and
directing the formation of a[] resident, business owner and stakeholder committee to
engage the public and receive input, recommendations (Subject to Mayor’s Veto).” The
resolution recited, among other things: “Cesar Chavez was a Mexican[-]American labor
leader and civil rights activist who dedicated his life’s work to improving the living and
working conditions of farm workers in the United States”; “Cesar Chavez’s life and work
had a profound impact on the people of Fresno”; and “[City Council] from time to time
may determine that the renaming of a City Street after individuals, events, or businesses
will provide a source of pride and community recognition.”

4 “The legislative body of a county, city or city and county, … may by resolution
change the name of any street, boulevard, park or place heretofore established ….” (Sts.
& Hy. Code, § 5026.)

11.
 At City Council’s February 17, 2022 regular meeting, 12 individuals publicly
commented on Resolution No. 2022-053. For instance, one person opposed the
resolution and advocated for renaming 2500 East Stanislaus Street—the address for
Fresno Adult School—for Cesar Chavez. Afterward, City Council adopted the
resolution, which instructed City’s administration “to pursue the process to change the
name[s] of [East] Kings Canyon [Road] and [East] Ventura [Avenue] to Avenida Cesar
Chavez.”
On July 18, 2022, City’s clerk posted the agenda for City Council’s July 21, 2022
regular meeting. Listed under the heading “General Administration” (boldface,
underscoring & some capitalization omitted) was item 3.-D.: a workshop concerning
“Procedures for Street Name Changes.” The agenda included a PowerPoint presentation
for item 3.-D., which addressed the prospect of renaming West California Avenue along
with East Kings Canyon Road and East Ventura Avenue as well as the option of
ceremonial street naming, which would leave the original street names intact. City’s
public works department submitted the PowerPoint presentation at the July 21, 2022
regular meeting.
On March 3, 2023, City’s clerk posted the agenda for City Council’s March 9,
2023 regular meeting. Listed under the heading “Consent Calendar” (boldface,
underscoring & some capitalization omitted) was item 1.-S.: Resolution No. 2023-056
“[t]o begin the process to change [East] Kings Canyon [Road]/[East] Ventura [Avenue]
to ‘Cesar Chavez Boulevard’ (Subject to Mayor’s veto)” (some capitalization omitted).
As before, the resolution recited: “Cesar Chavez was a Mexican[-]American labor leader
and civil rights leader … who dedicated his life’s work to improving the living and
working conditions of farm workers in the United States”; “Cesar Chavez’s life and work
had a profound impact on the people of Fresno”; and “[City Council] from time to time
may determine that the renaming of a City Street after individuals, events, or businesses
will provide a source of pride and community recognition.” The resolution also recited:

12.
“on February 17, 2022, [City] Council passed Resolution No. 2022-053 directing [City’s]
Administration to pursue a name change for … [East] Kings Canyon [Road]/[East]
Ventura [Avenue] … to ‘Avenida Cesar Chavez’ ”; “[City] Council now desires to begin
the process to change the name of [the Alignment], which runs east to west between
Marks Avenue and Temperance Avenue to ‘Cesar Chavez Boulevard’ (the Renaming
Project)”; and “City Council identified and allocated $1 million dollars in the Fiscal Year
2022–23 budget in conjunction with the Renaming Project to cover the application fee,
labor and materials, replacement of existing City street signs, [and] replacement of
[California Department of Transportation] freeway signage.”
On March 8, 2023, City Council received written public comments regarding
Resolution No. 2023-056, which were compiled in a supplemental packet. In one letter,
the Sunnyside Property Owners Association provided a history of East Kings Canyon
Road and maintained “there will be numerous opportunities to appropriately recognize
local community leaders and historic individuals on streets and public places” “[w]ith
unprecedented growth and the [Southeast Development Area] Plan update.”
At City Council’s March 9, 2023 regular meeting, Councilmember Luis Chavez
moved item 1.-S. to the “Contested Consent Calendar” (boldface, underscoring & some
capitalization omitted). Thereafter, 25 individuals publicly commented on Resolution
No. 2023-056. Opponents of the resolution proposed several alternatives to honor Cesar
Chavez, including renaming 2500 East Stanislaus Street, renaming a trailway, and
renaming a planned community. Others suggested omitting West California Avenue
from consideration. Following public comments, City Council discussed the matter
further. Councilmember Chavez noted he received feedback both in favor of and against
the resolution and outlined his reasons for supporting its passage. He made a motion to
approve item 1.-S., which was seconded by Councilmember Miguel Arias. Council Vice-
President Annalisa Perea asked and received answers from councilmembers Chavez and
Arias about West California Avenue’s recent inclusion in the renaming. Councilmember

13.
Arias expressed his support for the resolution while Councilmember Garry Bredefeld
expressed his opposition thereto. By a vote of six to one, City Council adopted
Resolution No. 2023-056. 5
Section 15-6204 of City’s Municipal Code, which took effect January 9, 2016,
provides: “Street name changes shall comply with adopted City policies regarding Street
Name Procedures.” At no point before or during the process of renaming the Alignment
did City Council “formally adopt[] any specific policies or procedures for street name
changes.”
c. Ruling
On February 3, 2025, the superior court issued a tentative ruling granting City’s
summary judgment motion. With respect to the first cause of action, the court found “no
triable issues of material fact” “as Plaintiff fails to overcome its burden to rebut” the
“factual contention that the changing of the street names was an exercise of police
power” and “the presumption” the renaming of the Alignment was valid. With respect to
the fourth cause of action, the court found “no triable issues as to the issue of public
waste” given “there is no identification of any duty imposed on [City] to refrain from
changing street names” and “the purpose of the renaming was to honor [Cesar Chavez],”
a “political issue, which is not subject to a waste action.” On February 4, 2025, following
a hearing, the court adopted its tentative ruling. Judgment was entered February 26,
2025.

5 As noted, Resolution No. 2023-056 called for the renaming of the Alignment
“between Marks Avenue and Temperance Avenue,” a 10.25-mile stretch. The resolution
also “encouraged” the Fresno County Board of Supervisors “to effectuate the change
within County jurisdiction.” However, on April 11, 2023, the board of supervisors
unanimously adopted a resolution “preserving the historic naming of [West] California
Ave[nue] and [East] Kings Canyon Road through county jurisdictions.” (Some
capitalization omitted.) As a result, only approximately seven miles of the Alignment
between South Marks Avenue and South Peach Avenue were renamed.

14.
 DISCUSSION
I. Notwithstanding subsequent acts or events that have rendered this
appeal moot, we exercise our discretion under the public interest
exception to consider the appeal on the merits
As noted, pending this appeal, City adopted resolutions that reverted Cesar Chavez
Boulevard back to the original street names. In its letter brief, City contended “[t]his
appeal is clearly moot” and should be dismissed since “[t]he situation now is exactly how
it existed prior to the street re[nam]ing.” (See In re Dani R. (2001) 89 Cal.App.4th 402,
404 [“ ‘[A]n action that originally was based on a justiciable controversy cannot be
maintained on appeal if all the questions have become moot by subsequent acts or events.
A reversal in such a case would be without practical effect, and the appeal will therefore
be dismissed.’ ”].) In its letter brief, plaintiff appeared to concede City’s latest
resolutions rendered the appeal moot but asserted this court still has the discretion to
decide the appeal under the public interest exception. (See In re William M., supra, 3
Cal.3d at p. 23 [“[I]f a pending case poses an issue of broad public interest that is likely
to recur, the court may exercise an inherent discretion to resolve that issue even though
an event occurring during its pendency would normally render the matter moot.”].)
This court recently applied the public interest exception to mootness in Ghost
Golf, Inc. v. Newsom (2024) 102 Cal.App.5th 88 (Ghost Golf). In that case, Governor
Gavin Newsom and the State Department of Public Health—pursuant to the California
Emergency Services Act (Gov. Code, § 8550 et seq.) and Health and Safety Code section
120140, respectively—issued in August 2020 the “Blueprint for a Safer Economy”
(Blueprint), “which implemented a color-coded, risk-based framework for tightening and
loosening restrictions on activities during the COVID-19 pandemic.” (Ghost Golf, supra,
102 Cal.App.5th at p. 94; accord, id. at p. 96.) The plaintiffs—two businesses affected by
the Blueprint—filed a lawsuit alleging, among other things, (1) the Governor lacked
statutory authority to implement the Blueprint; and (2) a broad interpretation of the

15.
California Emergency Services Act violated the California Constitution’s nondelegation
doctrine. (Ghost Golf, at pp. 94, 96.) They then filed a motion for a preliminary
injunction, which was denied by the superior court. (Id. at p. 95; accord, id. at pp. 96–
97.) Pending the plaintiffs’ appeal from the order denying injunctive relief, the Governor
signed a June 11, 2021 executive order rescinding the Blueprint. (Id. at pp. 95, 97.) In a
nonpublished opinion, this court “dismissed the appeal as moot because we could no
longer grant [the] plaintiffs effective relief on their motion for a preliminary injunction.”
(Id. at p. 95; accord, id. at p. 97.)
Thereafter, the parties cross-moved for summary judgment in the underlying
lawsuit. (Ghost Golf, supra, 102 Cal.App.5th at pp. 95, 97.) The superior court granted
the defendants’ motion and denied the plaintiffs’ motion on the grounds the California
Emergency Services Act (1) authorized the Governor to enact the Blueprint; and (2) was
not an unconstitutional delegation of legislative power to the Governor. (Ghost Golf, at
p. 97.) The plaintiffs appealed from the judgment. (Id. at p. 98.) The defendants moved
to dismiss the appeal on the basis “the rescission of the Blueprint renders plaintiffs’
challenges to the Blueprint moot.” (Id. at p. 99.) Although we agreed “the appeal is
moot” (ibid.) since “there is no longer anything to enjoin under [the] plaintiffs’ request
for a permanent injunction, and a judgment as to the Blueprint’s validity would have no
effect” (id. at p. 100), we nevertheless held “the public interest exception to mootness
applies in this case” (id. at p. 99). We explained:
“[T]he issues presented here are not ‘essentially factual.’ [The
p]laintiffs’ action challenges both the scope and constitutionality of
the Governor’s emergency police power. As to its scope, [the]
plaintiffs contend the [California Emergency Services Act]
authorizes the Governor only to enforce existing laws, not to make
new laws. They base this argument on a narrow interpretation of the
term ‘police power’ as used in [Government Code] section 8627. As
to the [California Emergency Services Act]’s constitutionality, [the]
plaintiffs contend an interpretation of the [California Emergency
Services Act] as authorizing the Governor to ‘make law’ would be

16.
 an unconstitutional delegation of legislative power…. The question
of whether the [California Emergency Services Act] allows the
Governor to ‘make law’ in a state of emergency is an evergreen
question that could arise in the context of any type of emergency.
The same is true with whether the [California Emergency Services
Act] unconstitutionally delegates legislative power to the Governor.
Thus, were we to agree with [the] plaintiffs on either the scope or
constitutionality of the [California Emergency Services Act], such a
decision could foreseeably affect the Governor’s exercise of
authority in other types of emergencies, not just emergencies
involving diseases. For these reasons, the precise questions
plaintiffs raise could be raised in the context of any state of
emergency where the Governor seeks to ‘make law’ under the
[California Emergency Services Act]. We therefore conclude that
this case raises questions of broad public interest that are likely to
recur.” (Ghost Golf, supra, 102 Cal.App.5th at p. 101.)
We also find instructive Downtown Palo Alto Com. for Fair Assessment v. City
Council (1986) 180 Cal.App.3d 384 (Downtown Palo Alto). There, the city enacted an
ordinance creating a downtown parking and business improvement area pursuant to the
Parking and Business Improvement Act of 1979 (Sts. & Hy. Code, former § 36500 et
seq.). (Downtown Palo Alto, supra, at p. 391.) The plaintiffs—a coalition of business
operators affected by the ordinance—petitioned for writ relief. (Id. at p. 389.) Among
other things, they argued the ordinance was invalid because the city failed to strictly
comply with the notice provisions set forth in Streets and Highways Code former section
36522. (See Downtown Palo Alto, at pp. 389, 391–392.) The superior court found the
ordinance valid and denied the petition. (Id. at p. 389.) It then denied the plaintiffs’
motion for reconsideration and for a new trial. (Ibid.) While the appeal was pending, the
city dissolved the downtown parking and business improvement area. (Id. at p. 391.)
Division One of the First Appellate District recognized the dissolution “rendered moot
the issues presented on appeal,” “[t]he validity of the ordinance is no longer of
consequence to the parties before this court,” and “[a]ny ruling by this court can have no
practical impact or provide [the] appellants effectual relief.” (Ibid.) Yet, invoking the
public interest exception (ibid.), the appellate court exercised its discretion to address the

17.
plaintiffs’ “strict compliance” claim (see id. at pp. 391–393), which necessitated
interpretation of Streets and Highways Code former section 36522 (see Downtown Palo
Alto, at pp. 394–396). It reasoned:
“There is nothing in the record to indicate that the [c]ity intends to
reenact the ordinance or otherwise attempt to establish a business
and parking improvement area. But there was adduced testimony by
Lee Strong, Mayor of Whittier, California, to the Palo Alto City
Council prior to enactment of the ordinance, that ‘about fifty cities in
California’ have enacted similar ordinances under authority of the
Parking and Business Improvement Act of 1979 …. Hence, the
question of whether strict or merely substantial compliance with the
directive of [Streets and Highways Code former] section 36522 that
‘each business’ in the proposed improvement area be mailed notice
of hearing and the intention to establish an improvement area is
required, presents an issue of public concern which may recur in
Palo Alto, or more likely in a number of other cities.” (Downtown
Palo Alto, supra, 180 Cal.App.3d at pp. 391–392, fn. omitted.)
In the instant case, the overarching question of whether City may rename one of
its streets after a polarizing figure necessitates an examination of both (1) the scope of a
local government’s police power; and (2) the constitutionality of that entity’s exercise of
that power with respect to state and federal free speech rights. (Cf. Ghost Golf, supra,
102 Cal.App.5th at p. 101.) The proper resolution of such legal issues is of sufficient
import to the general public. (See ibid.; cf. Leenay v. Superior Court (2022) 81
Cal.App.5th 553, 573 [“The proper interpretation of a statute presents a matter of public
interest.”].) As per City’s filings, the renaming of streets is commonly carried out not
only by City but also other municipalities throughout the state and even nationwide. (Cf.
Downtown Palo Alto, supra, 180 Cal.App.3d at pp. 391–392, fn. omitted.) It is thus
conceivable the foregoing issues could be raised again here or elsewhere. That no
published case currently addresses them further militates in favor of a decision on the
merits. (See In re Sodersten (2007) 146 Cal.App.4th 1163, 1218 [“ ‘Even when moot, a

18.
novel question of continuing public interest is often deserving of consideration by an
appellate court.’ ”].)
Because the case before us involves a broad public interest that is reasonably
likely to recur, “we consider it appropriate not to sidestep but to determine the case, and
thereby provide [other] courts and litigants in the future with definitive guidance on the
question.” (Butler v. County of Los Angeles (1981) 116 Cal.App.3d 633, 638.)
II. Plaintiff’s appeal from the August 1, 2024 judgment of dismissal after
the order sustaining City’s demurrer in part
As noted, plaintiff contends on appeal the superior court erroneously sustained
City’s demurrer as to the free speech claim because the renaming of the Alignment
compelled plaintiff’s members who reside or run a business on or near the Alignment “to
carry or convey [City’s] preferred ideological message.” We conclude the demurrer was
properly sustained because the renaming of the Alignment did not infringe on plaintiff’s
members’ free speech. 6
a. Standard of review
“A demurrer tests the legal sufficiency of the complaint. [Citation.] On appeal
from a judgment of dismissal following an order sustaining a demurrer, we examine the
complaint de novo in order to ascertain ‘whether it alleges facts sufficient to state a cause
of action under any legal theory, such facts being assumed true for this purpose.’
[Citation.] We give the complaint a reasonable interpretation, reading it as a whole and
viewing its parts in context. [Citations.] We assume the truth of the properly pleaded

6 Under California Rules of Court, rule 8.204(a)(1)(B), an issue must be stated
“under a separate heading or subheading” and supported “by citation of authority.”
“Failure to provide proper headings forfeits issues that may be discussed in the brief but
are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172,
179.) In the body of its opening brief, plaintiff suggested the superior court erroneously
sustained City’s demurrer as to the due process and equal protection claims. Because
these points are not placed under proper headings and supported by legal authority, we
need not address them.

19.
factual allegations, facts that can be reasonably inferred from those pleaded, and facts of
which judicial notice can be taken. [Citation.] But we do not assume the truth of pleaded
contentions and legal conclusions. [Citations.] And we may disregard allegations which
are contrary to law or to a fact of which judicial notice may be taken. [Citation.]” (In re
Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1263.) “Appellants bear
the burden of demonstrating the trial court erred in sustaining the demurrer ….” (Ibid.)
b. Free speech under federal and state Constitutions
The First Amendment to the federal Constitution, which applies to the states
through the Fourteenth Amendment (West Virginia State Board of Education v. Barnette
(1943) 319 U.S. 624, 638–639 (Barnette); Gerawan Farming, Inc. v. Lyons (2000) 24
Cal.4th 468, 484 (Gerawan)), prohibits laws “abridging the freedom of speech, … or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances” (U.S. Const., 1st Amend.). “While the freedom of association is not
explicitly set out in the [First] Amendment, it has long been held to be implicit in the
freedoms of speech, assembly, and petition.” (Healy v. James (1972) 408 U.S. 169, 181;
see Roberts v. United States Jaycees (1984) 468 U.S. 609, 622 [“[W]e have long
understood as implicit in the right to engage in activities protected by the First
Amendment a corresponding right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends.”].)
Under article I, section 2, subdivision (a) of the California Constitution (article I),
“[e]very person may freely speak, write and publish his or her sentiments on all subjects,
being responsible for the abuse of this right” and “[a] law may not restrain or abridge
liberty of speech or press.” “As a general rule, … article I’s free speech clause and its
right to freedom of speech are not only as broad and as great as the First Amendment’s,
they are even ‘broader’ and ‘greater.’ [Citations.]” (Gerawan, supra, 24 Cal.4th at
p. 491.) “First, article I’s free speech clause, unlike the First Amendment’s, specifies a
‘right’ to freedom of speech explicitly and not merely by implication.” (Ibid.) “Second,

20.
article I’s right to freedom of speech, unlike the First Amendment’s, is unbounded in
range. It runs against the world, including private parties as well as government actors.”
(Id. at p. 492.) “Third, article I’s right to freedom of speech, unlike the First
Amendment’s, is ‘unlimited’ in scope. [Citations.] Whereas the First Amendment does
not embrace all subjects, article I does indeed do so, in ipsissimis verbis ….” (Id. at
p. 493.) “However, ‘[m]erely because [article I] is worded more expansively and has
been interpreted as more protective than the First Amendment … does not mean that it is
broader than the First Amendment in all its applications.’ [Citations.]” (Beeman v.
Anthem Prescription Management, LLC (2013) 58 Cal.4th 329, 341.) State case law
“interpreting California’s free speech clause has given respectful consideration to First
Amendment case law for its persuasive value ….” (Ibid.) “Thus, in appropriate
situations … article I [has been construed] in a manner congruent with prevailing
interpretations of the First Amendment.” (Delano Farms Co. v. California Table Grape
Com. (2018) 4 Cal.5th 1204, 1221 (Delano Farms).)
i. Government speech doctrine
“[A]s a general matter, when [a] government speaks it is entitled to promote a
program, to espouse a policy, or to take a position. In doing so, it represents its citizens
and it carries out its duties on their behalf.” (Walker v. Texas Div., Sons of Confederate
Veterans, Inc. (2015) 576 U.S. 200, 208 (Walker).) “[W]hen it speaks, the government
inevitably will express viewpoints that some members of the body politic not only
disagree with, but indeed find highly objectionable.” (Delano Farms, supra, 4 Cal.5th at
p. 1222.) Nonetheless, “[t]his purposive messaging represents an integral and, on the
whole, beneficial part of the government’s basic functioning.” (Ibid.) Without such
latitude, “government would not work.” (Walker, supra, at p. 207; see Pleasant Grove
City v. Summum (2009) 555 U.S. 460, 468 (Pleasant Grove) [“ ‘If every citizen were to
have a right to insist that no one paid by public funds express a view with which he
disagreed, debate over issues of great concern to the public would be limited to those in

21.
the private sector, and the process of government as we know it radically
transformed.’ ”]; Miller v. California Com. on Status of Women (1984) 151 Cal.App.3d
693, 701 (Miller) [“If the government cannot address controversial topics it cannot
govern.”].)
“[I]t is the democratic electoral process that first and foremost provides a check on
governmental speech.” (Walker, supra, 576 U.S. at p. 207.) “When the government
speaks, for instance to promote its own policies or to advance a particular idea, it is, in
the end, accountable to the electorate and the political process for its advocacy. If the
citizenry objects, newly elected officials later could espouse some different or contrary
position.” (Board of Regents v. Southworth (2000) 529 U.S. 217, 235; see Shurtleff v.
City of Boston (2022) 596 U.S. 243, 252 [“The Constitution therefore relies first and
foremost on the ballot box, not on rules against viewpoint discrimination, to check the
government when it speaks.”]; Delano Farms, supra, 4 Cal.5th at p. 1222 [“[T]he
electorate and the political process ultimately will determine what the government does
and does not say.”].)
These foregoing principles undergird what is known as the government speech
doctrine, “a jurisprudential theory by which [a] government can regulate its own
communication ‘without the constraint of viewpoint neutrality.’ [Citation.]” (Gomez v.
Campbell-Ewald Co. (9th Cir. 2014) 768 F.3d 871, 877.) In light of this doctrine, the
“[f]ree speech guarantees under the federal and California Constitutions [generally] do
not apply to government speech.” (Alliance Marc & Eva Stern Math & Science High
School v. Public Employment Relations Bd. (2024) 107 Cal.App.5th 930, 961, citing
Pleasant Grove, supra, 555 U.S. at p. 467; Delano Farms, supra, 4 Cal.5th at pp. 1210–
1211; see Walker, supra, 576 U.S. at p. 207 [“When a government speaks, it is not barred
by the Free Speech Clause from determining the content of what it says.”]; Pleasant
Grove, supra, at p. 467 [1st Amend. “does not regulate government speech”]; Gundy v.

22.
City of Jacksonville (11th Cir. 2022) 50 F.4th 60, 71 [1st Amend. “ ‘not [used] as a sword
to compel the government to speak for [private persons]’ ”].)
ii. Compelled speech doctrine
“That is not to say that a government’s ability to express itself is without
restriction.” (Walker, supra, 576 U.S. at p. 208.) The right to freedom of speech under
both the First Amendment and article I “comprises both a right to speak freely and also a
right to refrain from doing so at all, and is therefore put at risk both by prohibiting a
speaker from saying what he otherwise would say and also by compelling him to say
what he otherwise would not say.” (Gerawan, supra, 24 Cal.4th at p. 491; see Wooley v.
Maynard (1977) 430 U.S. 705, 714 (Wooley) [“The right to speak and the right to refrain
from speaking are complementary components of the broader concept of ‘individual
freedom of mind.’ ”].) Hence, the First Amendment and article I “may constrain the
government’s speech if … the government seeks to compel private persons to convey the
government’s speech.” (Walker, supra, at p. 208; see Cressman v. Thompson (10th Cir.
2015) 798 F.3d 938, 950 (Cressman) [“[T]he government-speech and compelled-speech
doctrines are concerned with different things: the former focuses on the government’s
interest in expressing its own views, while the latter ‘involve[s] the government putting
particular messages in the mouths of private speakers.’ ”]; Miller, supra, 151 Cal.App.3d
at p. 701 [critical distinction between government’s addition of its own voice and
government’s silencing of others].)
“[I]n order to make out a valid compelled-speech claim, a party must establish
(1) speech; (2) to which he objects; that is (3) compelled by some governmental action.”
(Cressman, supra, 798 F.3d at p. 951; accord, Civil Rights Dept. v. Cathy’s Creations,
Inc. (2025) 109 Cal.App.5th 204, 249.) “The crucial question is whether, in speaking, the
government is compelling others to espouse or to suppress certain ideas and beliefs.”
(Phelan v. Laramie County Community College Bd. of Trustees (10th Cir. 2000) 235 F.3d
1243, 1247, italics omitted (Phelan).) “ ‘In order to compel the exercise or suppression

23.
of speech, the government measure must punish, or threaten to punish, protected speech
by governmental action that is “regulatory, proscriptive, or compulsory in nature.” ’
[Citation.]” (Cressman, supra, at p. 951.) “[T]he focus of compelled-speech analysis is
ultimately … that the particular ideas expressed through [the challenged] speech ‘alter
[the speaker’s] own message,’ [citation] – and thereby harm the speaker’s sacrosanct
‘sphere of intellect and spirit,’ [citation].” (Id. at p. 964.)
c. Title 42 United States Code section 1983
“Local governmental entities ‘ “can be sued directly under [title 42 United States
Code section] 1983 for monetary, declaratory, or injunctive relief where . . . the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted ….” ’ [Citation.] Local
governmental entities also can be sued ‘ “for constitutional deprivations visited pursuant
to governmental ‘custom.’ ” ’ [Citation.] In addition, ‘ “[t]he plaintiff must …
demonstrate that, through its deliberate conduct, the [entity] was the ‘moving force’
behind the injury alleged. That is, a plaintiff must show that the [governmental] action
was taken with the requisite degree of culpability and must demonstrate a direct causal
link between the [governmental] action and the deprivation of federal rights.” ’
[Citation.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1147, italics
omitted; see Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934 [plaintiff must
demonstrate governmental action resulted in deprivation of federal constitutional or
statutory right].)
d. Analysis
“The party against whom a complaint or cross-complaint has been filed may
object, by demurrer … , to the pleading on … the … ground[] … [¶] … [¶] … [t]he
pleading does not state facts sufficient to constitute a cause of action.” (§ 430.10, subd.
(e).) “To show entitlement to reversal the plaintiff must show that the complaint alleged
facts sufficient to establish every element of each cause of action. If the plaintiff failed to

24.
plead, or if the defendant[] negated, any essential element of a particular cause of action,
[the appellate] court should uphold the sustaining of the demurrer[].” (Los Altos Golf &
Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203.)
In the operative complaint, plaintiff alleged (1) City passed a resolution that
changed the names of the Alignment (i.e., East Kings Canyon Road, East Ventura
Avenue, and West California Avenue) to Cesar Chavez Boulevard; (2) plaintiff’s
members who resided or ran businesses on or near the Alignment did not want to be
associated with Cesar Chavez Boulevard because its namesake was a “divisive” and
“objectionable political figure”; and (3) as a result of the renaming, plaintiff’s members
were forced to use addresses displaying Cesar Chavez Boulevard as the street name
instead of the former ones and expend significant time and money to change their
addresses on various accounts and documents as well as business signage. These facts
were sufficient to establish government speech to which plaintiff objects. (See
Cressman, supra, 798 F.3d at p. 951.)
The remaining question is whether the facts were also sufficient to establish
whether plaintiff’s members were compelled to espouse or suppress certain ideas and
beliefs. (See Phelan, supra, 235 F.3d at p. 1247.) In resolving this issue, we find the
United States Supreme Court cases of Barnette and Wooley illustrative.
In Barnette, West Virginia’s Board of Education enacted a resolution requiring
children in public schools to regularly salute the American flag and recite the Pledge of
Allegiance. (Barnette, supra, 319 U.S. at pp. 625–629 & fns. 1–2.) As per this
resolution, the refusal to conform would be “ ‘regarded as an act of insubordination’ ”
and “ ‘dealt with accordingly.’ ” (Id. at p. 626; accord, id. at pp. 626–628, fn. 2.) In
practice, noncompliant children were expelled and—under state law—could be
“proceeded against as a delinquent.” (Id. at p. 629; accord, id. at p. 629, fns. 5–6.)
Additionally, pursuant to state law, the parents or guardians of these “ ‘unlawfully
absent’ ” children were “liable to prosecution” (id. at p. 629) “for causing delinquency”

25.
(id. at p. 630) and—if convicted—“subject to [a] fine not exceeding $50 and [a] jail term
not exceeding thirty days” (id. at p. 629). (See id. at pp. 629–630 & fns. 5, 7–8.) The
United States Supreme Court held “the action of the local authorities in compelling the
flag salute and pledge transcends constitutional limitations on their power and invades the
sphere of intellect and spirit which it is the purpose of the First Amendment to our
Constitution to reserve from all official control.” (Id. at p. 642.) The high court noted:
“[T]he compulsory flag salute and pledge requires affirmation of a
belief and an attitude of mind…. To sustain [these actions] we are required
to say that a Bill of Rights which guards the individual’s right to speak his
own mind, left it open to public authorities to compel him to utter what is
not in his mind. [¶] … [¶]
“If there is any fixed star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein….” (Barnette, supra, 319 U.S. at
pp. 633–634, 642.)
In Wooley, a New Hampshire law required noncommercial vehicles to bear license
plates embossed with the state motto “ ‘Live Free or Die.’ ” (Wooley, supra, 430 U.S. at
p. 707, fn. omitted.) Another state statute made it a misdemeanor to knowingly obscure
“ ‘the figures or letters on any number plate,’ ” including said motto. (Ibid.) Plaintiffs
George and Maxine Maynard, who were Jehovah’s Witnesses, found the motto repugnant
to their moral, religious, and political beliefs and covered up the wording on their license
plates. (Id. at pp. 707–708.) As a result, George was repeatedly fined for committing a
misdemeanor and—due to his refusal to pay these fines—served a 15-day jail sentence.
(Id. at p. 708.) The United States Supreme Court concluded the state “may not require
appellees to display the state motto upon their vehicle license plates ….” (Id. at p. 717,
fn. omitted.) The high court explained:
“Here, … we are faced with a state measure which forces an
individual, as part of his daily life—indeed constantly while his automobile
is in public view—to be an instrument for fostering public adherence to an
ideological point of view he finds unacceptable. In doing so, the State

26.
 ‘invades the sphere of intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official control.’
[Citation.]
“New Hampshire’s statute in effect requires that appellees use their
private property as a ‘mobile billboard’ for the State’s ideological
message—or suffer a penalty, as [George] already has. As a condition to
driving an automobile—a virtual necessity for most Americans—the
Maynards must display ‘Live Free or Die’ to hundreds of people each day.
The fact that most individuals agree with the thrust of New Hampshire’s
motto is not the test …. The First Amendment protects the right of
individuals to hold a point of view different from the majority and to refuse
to foster, in the way New Hampshire commands, an idea they find morally
objectionable.” (Wooley, supra, 430 U.S. at p. 715, fn. omitted.)
In view of Barnette and Wooley, we conclude the facts alleged were insufficient to
establish plaintiff’s members were compelled to espouse or suppress certain ideas and
beliefs. That plaintiff’s members had to reside or run a business on or near the renamed
Cesar Chavez Boulevard and/or update their addresses to reflect this street name instead
of East Kings Canyon Road, East Ventura Avenue, or West California Avenue, which
ensured their homes or enterprises could be physically located, “is simply not the same as
forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the
motto ‘Live Free or Die ….’ ” (Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. (2006) 547 U.S. 47, 62; see ibid. [“There is nothing in this case approaching
a Government-mandated pledge or motto that … must [be] endorse[d].”].) Also, in
contrast to Barnette and Wooley, the instant case did not involve a government measure
that punished or threatened to punish plaintiff’s members’ protected speech by
regulatory, proscriptive, or compulsory action. (See Cressman, supra, 798 F.3d at p. 951;
cf. Wooley, supra, 430 U.S. at pp. 707–708, fns. omitted [fines and 15-day jail term];
Barnette, supra, 319 U.S. at pp. 629–630 & fns. 5–8 [expulsion from school and criminal
liability for delinquency]; cf. also Baird v. State Bar of Arizona (1971) 401 U.S. 1, 4–5
[State Bar denied admission to applicant who refused to answer question asking whether
she “had ever been a member of the Communist Party or any organization ‘that advocates

27.
overthrow of the United States Government by force or violence’ ”]; Keyishian v. Board
of Regents (1967) 385 U.S. 589, 591–592 [state university did not renew contract of
faculty member who refused to sign certificate attesting “he was not a Communist” and
dismissed nonfaculty employee who refused to answer question, “ ‘Have you ever
advised or taught or were you ever a member of any society or group of persons which
taught or advocated the doctrine that the Government of the United States or of any
political subdivisions thereof should be overthrown or overturned by force, violence or
any unlawful means?’ ”].) Far from becoming “instrument[s] for fostering public
adherence to an ideological point of view [they] find[] unacceptable” (Wooley, supra, at
p. 715), plaintiff’s members “remained free to express [their opposing] views publicly
and to criticize ….” (Phelan, supra, 235 F.3d at p. 1248.)
Plaintiff points out its members were “singled out” to shoulder the “administrative
burden” of the Alignment’s renaming. This, however, is immaterial to a free speech
claim. (See Young v. American Mini Theatres, Inc. (1976) 427 U.S. 50, 78 (conc. opn. of
Powell, J.) [“The inquiry for First Amendment purposes is not concerned with economic
impact; rather, it looks only to the effect of th[e] [government action] upon freedom of
expression.”]; Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470,
497 [“To the extent [city and county] chose to exercise its discretion in a manner
[plaintiff] feel[s] disfavors one group of people or one point of view over another, we
need only state the obvious: Governing requires policy choices to be made. And in
carrying out those choices, government must speak—and the First Amendment does not
constrain what it says.”].) 7

7 On appeal, plaintiff asserts that if this court finds the demurrer should have been
overruled as to the free speech claim, the demurrer also should have been overruled with
respect to the equal protection claim. Having decided the demurrer was properly
sustained as to the free speech claim, we necessarily reject this argument.

28.
III. Plaintiff’s appeal from the February 26, 2025 judgment after the order
granting City’s summary judgment motion
Plaintiff contends the superior court erroneously granted summary judgment as to
the causes of action for invalid exercise of police power and waste of public funds. We
conclude summary judgment was proper because there is no triable issue of material fact
and City is entitled to judgment as a matter of law.
a. Overview of summary judgment law
“A party may move for summary judgment in an action or proceeding if it is
contended that the action has no merit or that there is no defense to the action or
proceeding.” (§ 437c, subd. (a)(1).) Summary judgment “provide[s] courts with a
mechanism to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); see Lee v. Marchetti (1970) 4
Cal.App.3d 97, 99 [“ ‘The salient philosophy behind this procedural device is to provide
a method for the prompt disposition of actions and proceedings which have no merit and
in which there is no triable material issue of fact [citation].’ ” (italics omitted)].)
A summary judgment motion “shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice
shall or may be taken. The supporting papers shall include a separate statement setting
forth plainly and concisely all material facts that the moving party contends are
undisputed. Each of the material facts stated shall be followed by a reference to the
supporting evidence.” (§ 437c, subd. (b)(1).) An opposition to a summary judgment
motion “shall consist of affidavits, declarations, admissions, answers to interrogatories,
depositions, and matters of which judicial notice shall or may be taken.” (Id., subd.
(b)(2).) “The opposition papers shall include a separate statement that responds to each
of the material facts contended by the moving party to be undisputed, indicating if the
opposing party agrees or disagrees that those facts are undisputed. The statement also

29.
shall set forth plainly and concisely any other material facts the opposing party contends
are disputed. Each material fact contended by the opposing party to be disputed shall be
followed by a reference to the supporting evidence.” (Id., subd. (b)(3).)
“The motion for summary judgment shall be granted if all the papers submitted
show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. In determining if the papers show that there is
no triable issue as to any material fact, the court shall consider all of the evidence set
forth in the papers, except the evidence to which objections have been made and
sustained by the court, and all inferences reasonably deducible from the evidence, except
summary judgment shall not be granted by the court based on inferences reasonably
deducible from the evidence if contradicted by other inferences or evidence that raise a
triable issue as to any material fact.” (§ 437c, subd. (c).)
A defendant seeking summary judgment bears an initial burden to produce
evidence demonstrating either one or more elements of the cause of action cannot be
established or there is a complete defense to that cause of action. (§ 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at pp. 849, 854–855.) If the motion is made against a plaintiff
who would bear the burden of proof by a preponderance of evidence at trial, the
defendant “must present evidence that would require a reasonable trier of fact not to find
any underlying material fact more likely than not—otherwise, he would not be entitled to
judgment as a matter of law, but would have to present his evidence to a trier of fact.”
(Aguilar, supra, at p. 851, italics & fn. omitted.) If the defendant makes a prima facie
showing, 8 then the burden of production “shifts to the plaintiff … to show that a triable
issue of one or more material facts exists as to the cause of action or a defense thereto.”
(§ 437c, subd. (p)(2).)

8 “A prima facie showing is one that is sufficient to support the position of the
party in question. [Citation.] No more is called for.” (Aguilar, supra, 25 Cal.4th at
p. 851.)

30.
 “The plaintiff … shall not rely upon the allegations or denials of its pleadings to
show that a triable issue of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to the cause of action or a
defense thereto.” (§ 437c, subd. (p)(2); accord, Aguilar, supra, 25 Cal.4th at p. 849.)
“There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850,
fn. omitted.) “[F]rom commencement to conclusion, the party moving for summary
judgment bears the burden of persuasion[ 9] that there is no triable issue of material fact
and that he is entitled to judgment as a matter of law.” (Ibid., fn. omitted.)
b. Standard of review
“When reviewing the grant of a motion for summary judgment or summary
adjudication, we independently consider whether a triable issue of material fact exists and
whether the moving party is entitled to summary judgment or adjudication as a matter of
law.” (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 631, fn.
omitted.) “In other words, we must assume the role of the trial court and reassess the
merits of the motion. [Citation.] In doing so, we will consider only the facts properly
before the trial court at the time it ruled on the motion. [Citation.]” (Brantley v. Pisaro
(1996) 42 Cal.App.4th 1591, 1601.)
“We apply the same three-step analysis required of the trial court. First, we
identify the issues framed by the pleadings since it is these allegations to which the
motion must respond. Second, we determine whether the moving party’s showing has
established facts which negate the opponent’s claim and justify a judgment in the moving
party’s favor. When a summary judgment motion prima facie justifies a judgment, the

9 Whereas a burden of production entails only the presentation of evidence, a
burden of persuasion entails the establishment of a requisite degree of belief by way of
such evidence. (Aguilar, supra, 25 Cal.4th at p. 850.)

31.
third and final step is to determine whether the opposition demonstrates the existence of a
triable issue of material fact.” (Hutton v. Fidelity National Title Co. (2013) 213
Cal.App.4th 486, 493–494.) “Our obligation is ‘ “ ‘to determine whether issues of fact
exist, not to decide the merits of the issues themselves.’ ” ’ [Citation.] We must
‘ “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom
[citation], and must view such evidence [citations] and such inferences [citations], in the
light most favorable to the opposing party.’ [Citations.]” (See’s Candy Shops, Inc. v.
Superior Court (2012) 210 Cal.App.4th 889, 900.) “ ‘We are not bound by the trial
court’s stated reasons or rationale. Instead, we review the summary judgment without
deference to the trial court’s determination of questions of law.’ [Citation.]” (McGarry
v. Sax (2008) 158 Cal.App.4th 983, 994; see Stoltenberg v. Newman (2009) 179
Cal.App.4th 287, 293 [“[W]e may affirm the summary judgment on a ground that was
not the basis of the trial court’s ruling.”].)
c. Analysis – police power
Article XI, section 7 of the California Constitution provides: “A county or city
may make and enforce within its limits all local, police, sanitary, and other ordinances
and regulations not in conflict with general laws.” “Under the police power granted by
the [state] Constitution, counties and cities have plenary authority to govern, subject only
to the limitation that they exercise this power within their territorial limits and
subordinate to state law.” (Candid Enterprises, Inc. v. Grossmont Union High School
Dist. (1985) 39 Cal.3d 878, 885.) Subject to this limitation, “the police power of a
county or city is as broad as the police power exercised by the state Legislature itself.”
(Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534,
1552.) “The police power extends to legislative objectives in furtherance of public peace,
safety, morals, health and welfare.” (Massingill v. Department of Food & Agriculture
(2002) 102 Cal.App.4th 498, 504 (Massingill).) Furthermore, “the police power is not a
circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge

32.
and the belief in the popular mind of the need for its application, capable of expansion to
meet existing conditions of modern life and thereby keep pace with the social, economic,
moral, and intellectual evolution of the human race.” (Miller v. Board of Public Works
(1925) 195 Cal. 477, 485.) “A legislative body, in the exercise of its police power, has a
broad discretion to determine both what public interests are and the measures necessary
for the protection of such interests.” (Justesen’s Food Stores, Inc. v. City of Tulare
(1941) 43 Cal.App.2d 616, 621 (Justesen’s).)
“Whether a law is a constitutional exercise of the police power is a judicial
question.” (Massingill, supra, 102 Cal.App.4th at p. 504.) A municipal ordinance or
regulation “will ordinarily be upheld if ‘it is reasonably related to promoting the public
health, safety, comfort, and welfare, and if the means adopted to accomplish that
promotion are reasonably appropriate to the purpose. [Citations.]’ [Citation.]” (Sunset
Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72.) “The
determination of the need for a mode of exercising the [police] power is primarily for the
legislative body and the courts will not hold enactments invalid unless they are palpably
unreasonable, arbitrary or capricious, having no tendency to promote the public welfare,
safety, morals, or general welfare.” (Justesen’s, supra, 43 Cal.App.2d at p. 621.) “A law
is presumed to be a valid exercise of police power. The party challenging the law has the
burden of establishing it does not reasonably relate to a legitimate government concern.”
(Massingill, supra, at p. 504; see Arcadia Development Co. v. City of Morgan Hill (2011)

33.
197 Cal.App.4th 1526, 1536 [“City’s exercise of its constitutionally derived police power
is subject to substantial deference from the judicial branch.”].) 10
According to undisputed material facts, one of City’s objectives is to promote
“pride and community recognition.” (See Disney v. City of Concord (2011) 194
Cal.App.4th 1410, 1416 [“ ‘ “The concept of the public welfare is broad and
inclusive.” ’ ”]; cf. Wooley, supra, 430 U.S. at pp. 716–717 [fostering appreciation of
history and state pride a legitimate government interest]; Miller, supra, 151 Cal.App.3d at
p. 701 [“ ‘Government has legitimate interests in informing, in educating, and in
persuading.’ ”].) It recognized Cesar Chavez’s efforts “to improv[e] the living and
working conditions of farm workers in the United States” “had a profound impact on the
people of Fresno” 11 and determined that renaming the Alignment—a prominent
downtown throughfare—in his honor would advance the aforementioned objective. We
do not find City’s action “palpably unreasonable, arbitrary or capricious ….” (Justesen’s,
supra, 43 Cal.App.2d at p. 621.)
Plaintiff insists the renaming of the Alignment is “completely arbitrary and
unreasonable” because, among other things, (1) Cesar Chavez “was not born in Fresno”;
“was not raised in Fresno”; “never lived in Fresno”; “was not part of the [B]lack
community of [West] California Ave[nue] nor the Armenian Community of [East]

10 Plaintiff curiously cites Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129 for
the “clear” proposition “the test is not one of ‘rational basis.’ ” This is incorrect. (See
Birkenfeld v. Berkeley, supra, at p. 161 [“[O]ur task is to review the findings … and to
sustain the propriety of rent controls under the police power unless the findings establish
a complete absence of even a debatable rational basis for the legislative determination by
the Berkeley electorate that rent control is a reasonable means of counteracting harms and
dangers to the public health and welfare emanating from a housing shortage.”].)
11 On September 30, 1962, Cesar Chavez and Dolores Huerta established the
National Farm Workers Association (predecessor of the United Farm Workers).
Thereafter, the labor union held its January 21, 1963 constitutional convention in Fresno,
where Cesar Chavez was named as president. (See Evid. Code, §§ 451, subd. (f), 452,
subds. (g)–(h).)

34.
Ventura Ave[nue]”; and had no “association” with either East Kings Canyon Road, East
Ventura Avenue, or West California Avenue; (2) the renaming was politically motivated
(3) the reach of the renaming was limited to “[City’s] south end”; and (4) other streets
(e.g., “Blackstone, Shaw, Van Ness or Olive”) had “a lot more drivers, businesses and
residents” and—if renamed instead of the Alignment—would have had “more eyeballs
seeing [the Cesar Chavez Boulevard] street signs.”
None of these reasons convince us to overturn City’s action. “A court is not
concerned with the wisdom or policy of the law [enacted under police power] and cannot
substitute its judgment for that of the legislative body. If reasonable minds might differ
as to the reasonableness of the regulation, the law must be upheld.” (Justesen’s, supra,
43 Cal.App.2d at p. 621; see Simpson v. City of Los Angeles (1935) 4 Cal.2d 60, 65 [“[I]f
the constitutional limits of the exercise of the [police] power have not been transcended,
that is, if there be any rational basis for its exercise in the particular case, the motive
actuating the legislative body becomes immaterial and not a proper subject of inquiry,
and the court will not substitute its opinion or judgment for that of the legislative
body.”].)
Nor do we find persuasive plaintiff’s claim its members were “substantially
burdened” by the renaming. (See California Reduction Company v. Sanitary Works
(1905) 199 U.S. 306, 318 [“[N]o person has an absolute right ‘to be at all times and in all
circumstances wholly freed from restraint;’ … ‘persons and property are subject to all
kinds of restraints and burdens, in order to secure the general comfort, health, and general
prosperity of the State.’ ”]; Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 338
[“[T]he mere fact that some hardship is experienced is not material, since ‘Every exercise
of the police power is apt to affect adversely the property interest of somebody.’ ”].)
Finally, plaintiff contends City “violated its police power” because “[its] process
in renaming [the Alignment] was procedurally unfair” (boldface & capitalization
omitted). (See South Lake Tahoe Property Owners Group v. City of South Lake Tahoe

35.
(2023) 92 Cal.App.5th 735, 747 [“Police power is not limitless. The due process clauses
of the federal and state constitutions ‘are the most basic substantive checks’ on a
government’s exercise of its police power. [Citation.] In general, a city does not violate
due process so long as its regulation ‘is procedurally fair and reasonably related to a
proper legislative goal.’ ”].)
“Due process principles require reasonable notice and opportunity to be heard
before governmental deprivation of a significant property interest.” (Horn v. County of
Ventura (1979) 24 Cal.3d 605, 612.) “The procedural component of the [federal] Due
Process Clause does not protect everything that might be described as a ‘benefit’: ‘To
have a property interest in a benefit, a person clearly must have more than an abstract
need or desire’ and ‘more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.’ [Citation.] Such entitlements are, ‘ “of course, …
not created by the Constitution. Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an independent source such as state
law.” ’ [Citations.]” (Castle Rock v. Gonzales (2005) 545 U.S. 748, 756.) Similarly, the
California Constitution’s due process clause (see Cal. Const., art. 1, § 7, subd. (a)) “does
not protect all conceivable property interests, but only those property interests or benefits
that are conferred by statute” (Las Lomas Land Co., LLC v. City of Los Angeles (2009)
177 Cal.App.4th 837, 855).
Here, to the extent plaintiff contends its members have a property interest in street
names, it fails to cite any statute conferring such interest. (Cf. Sts. & Hy. Code, § 5026
[“The legislative body of a county, city or city and county, … may by resolution change
the name of any street, boulevard, park or place heretofore established ….”].) Plaintiff
cites section 15-6204 of City’s Municipal Code, which provides “[s]treet name changes
shall comply with adopted City policies regarding Street Name Procedures,” but does not
cite any municipal code provision suggesting a property interest in street names was
granted to the public. Moreover, it is an undisputed material fact City did not adopt any

36.
formal policies or procedures for street name changes before or during the process of
renaming the Alignment 12 and plaintiff offers no municipal code provision obligating
City to do so.
“It is equally well settled … that only those governmental decisions which are
adjudicative in nature are subject to procedural due process principles. Legislative action
is not burdened by such requirements.” (Horn v. County of Ventura, supra, 24 Cal.3d at
p. 612, italics omitted.) Here, the challenged action was inherently legislative. (See Sts.
& Hy. Code, § 5026; see also Crowe v. Boyle (1920) 184 Cal. 117, 149 [“[A] legislative
act may be either in the form of a resolution or of an ordinance.”].) In addition, while
City was not beholden to procedural due process principles, undisputed material facts
demonstrate both notice and opportunities to be heard were afforded to the public.
Agendas for City Council’s regular meetings on February 17 and July 21, 2022, and
March 9, 2023, were posted at least 72 hours in advance and described the items of
business to be discussed, which included matters related to the renaming of the
Alignment. (See Gov. Code, § 54954.2, subd. (a).) Public comments were made orally
at the February 17, 2022, and March 9, 2023 meetings and in writing prior to the
March 9, 2023 meeting, which included numerous statements opposing the renaming of
the Alignment and proposing alternatives thereto. Toward the end of the March 9, 2023
meeting, after receiving these comments, councilmembers acknowledged the positive and
negative feedback and then registered their reasons for supporting or not supporting the
renaming.

12 Thus, any language in Resolution No. 2022-053 calling for the formation of an
advisory committee and meetings did not constitute a formal policy and procedure. In
any event, Resolution No. 2023-056, which expressly recognized Resolution No. 2022-
053, recited City Council’s desire to proceed with the renaming, apparently dispensing
with the committee. (See City of Sausalito v. County of Marin (1970) 12 Cal.App.3d
550, 564 [“The power to legislate includes by necessary implication the power to amend
existing legislation.”].)

37.
 d. Analysis – section 526a
Section 526a, subdivision (a) provides:
“An action to obtain a judgment, restraining and preventing any illegal
expenditure of, waste of, or injury to, the estate, funds, or other property of
a local agency, may be maintained against any officer thereof, or any agent,
or other person, acting in its behalf, either by a resident therein, or by a
corporation, who is assessed for and is liable to pay, or, within one year
before the commencement of the action, has paid, a tax that funds the
defendant local agency ….”
Such taxpayer suits “are authorized only if the government body has a duty to act and has
refused to do so. If it has discretion and chooses not to act, the courts may not interfere
with that decision.” (Daily Journal Corp. v. County of Los Angeles (2009) 172
Cal.App.4th 1550, 1557–1558.) “ ‘[T]he term “waste” as used in section 526a means
something more than an alleged mistake by public officials in matters involving the
exercise of judgment or wide discretion. To hold otherwise would invite constant
harassment of city and county officers by disgruntled citizens and could seriously hamper
our representative form of government at the local level. Thus, the courts should not take
judicial cognizance of disputes which are primarily political in nature, nor should they
attempt to enjoin every expenditure which does not meet with a taxpayer’s approval.…’
[Citation.]” (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1138–1139; see
Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 482–483
[§ 526a’s prohibition against waste does not apply “to the vast majority of discretionary
decisions made by state and local units of government”]; Humane Society of the United
States v. State Bd. of Equalization (2007) 152 Cal.App.4th 349, 356 [§ 526a “should not
be applied to principally ‘political’ issues or issues involving the exercise of the
discretion of either the legislative or executive branches of government”].)
Undisputed material facts demonstrate the renaming of the Alignment was
discretionary rather than ministerial. Also, plaintiff alleged below and in its appellate
briefs that the renaming was political. Therefore, section 526a was inapplicable.

38.
 On appeal, plaintiff maintains the waste claim “survives” because “th[is] Court
must find that … City violated its police power and/or violated the free speech rights of
[plaintiff’s] members.” We necessarily reject this argument: as previously discussed, we
found City validly exercised its police power and did not infringe on plaintiff’s members’
free speech.
DISPOSITION
The August 1, 2024 judgment of dismissal after an order sustaining a demurrer in
part and February 26, 2025 judgment after an order granting a motion for summary
judgment are affirmed. Costs on appeal are awarded to defendant and respondent City of
Fresno.

DETJEN, Acting P. J.
I CONCUR:

FRANSON, J.

39.
Meehan, J., Dissenting.
Under the circumstances presented in the record, the parties’ briefs and oral
argument, I join the majority in concluding the appeal is moot because respondent City of
Fresno (City) reverted the at-issue streets back to their original names, effectively
granting 1 Community Compact (plaintiff) the ultimate relief it sought. I respectfully
part company with the majority, however, in reaching the merits under the public interest
exception to the mootness doctrine. For reasons I will explain below, I am unconvinced
the legal issues raised are likely to recur in this context, and even if they were, there are
no compelling justifications to issue an advisory opinion, especially one addressing
constitutional issues, under the public interest exception. Consequently, I would not
exercise inherent discretion to reach the merits and would dismiss the appeal as moot.
I. The Appeal is Moot
A case that initially presents a true controversy may become moot “‘if before
decision it has, through act of the parties or other cause, occurring after the
commencement of the action, lost that essential character .…’” (Wilson v. L.A. County
Civil Service Com. (1952) 112 Cal.App.2d 450, 453.) An appeal is moot when any
decision of the reviewing court “can have no practical impact or provide the parties
effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77
Cal.App.4th 880, 888; accord, Golden State Water Co. v. Public Utilities Com. (2024) 16
Cal.5th 380, 393.) Typically, when changed circumstances render an appeal moot, the
appeal is dismissed. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) Underlying
the mootness doctrine is a fundamental principle of judicial restraint: “[a] court is tasked
with the duty ‘“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.”’” (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.), quoting Consol. etc. Corp. v.
United A. etc. Workers (1946) 27 Cal.2d 859, 863.)
Here, plaintiff filed a complaint challenging City’s March 9, 2023, resolution
renaming approximately 10 miles of three historical streets as Cesar Chavez Boulevard.
Plaintiff asserted due process, free speech/association, and equal protection claims under
the federal and California Constitutions, and state law claims challenging City’s exercise
of police power and for public waste under Code of Civil Procedure section 526a. The
trial court dismissed the constitutional claims without leave to amend; City was
subsequently granted summary judgment as to the state law claims. Plaintiff appealed.
During the appeal, negative publicity about Cesar Chavez was reported in the media and,
in response to this publicity, City passed additional resolutions in March and April 2026
reverting the streets recently renamed Cesar Chavez Boulevard back to their original
street names.
Given this changed circumstance, we directed the parties to file supplemental
briefs addressing whether the appeal was moot and should be dismissed. City responded
in the affirmative. Plaintiff did not expressly concede the appeal was moot, and briefly
referenced the possibility of an award of attorney fees and costs as the prospect of a
remedy that could have practical and tangible impact on the parties’ conduct or legal
status, but plaintiff did not develop the argument and primarily urged us to exercise our
discretion to decide the appeal under an exception to the mootness doctrine—i.e., the
public interest exception or because material questions remained.
Plaintiff’s passing reference in its brief to attorney fees and costs does not
persuade me plaintiff may gain a practical benefit from our review of the trial court’s
ruling on City’s demurer and summary judgment motion. The record does not show that
attorney fees were awarded to either party, and the attorney fees plaintiff sought under
Code of Civil Procedure section 1021.5 in the complaint do not provide for an automatic
award of fees to a prevailing party. (See generally Woodland Hills Residents Assn., Inc.

2.
v. City Council (1979) 23 Cal.3d 917, 935 [Code Civ. Proc., § 1021.5 does not afford
relief for “the enforcement of ‘any’ or ‘all’ statutory rights. [Rather] … the statute directs
the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal
importance’ of the rights involved”].) Even if plaintiff were to win on the merits of the
appeal, this would only, at most, return the case to the trial court for further
proceedings—it would not make plaintiff a prevailing party for purposes of attorney fees.
(Cf. Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th
68, 96–97 [arbitration decision would drive prevailing party determination on automatic
fee-shifting provision; review of trial court’s order vacating arbitration award would be
outcome-determinative as to attorney fees, and appeal not moot as a result].)
Presented with no basis to conclude we can provide plaintiff with any effective
relief after City’s reversion of the street names, I join the majority in concluding the
appeal is moot. (See D.P., supra, 14 Cal.5th at p. 276 [“[a] case becomes moot when
events ‘“render[] it impossible for [a] court, if it should decide the case in favor of [the]
plaintiff, to grant him any effect[ive] relief”’”].) 1
II. Discretion to Reach the Merits Should Not Be Exercised
“Even when a case is moot, courts may exercise their ‘inherent discretion’ to reach
the merits of the dispute.” (D.P., supra, 14 Cal.5th at p. 282; see City of Plymouth v.
Superior Court (1970) 8 Cal.App.3d 454, 460 [mootness is not a jurisdictional defect].)
In general, discretion to review a moot case may be exercised when “‘the case presents an
issue of broad public interest that is likely to recur,’ ‘when there may be a recurrence of
the controversy between the parties,’ or ‘when a material question remains for the court’s

1 Other than passing reference to attorney fees in its supplemental brief, which was not
reasserted at oral argument, plaintiff has not identified any other effective relief that we could
grant now that City has reverted the streets to their original names. Absent any other developed
argument by plaintiff, I agree the appeal is moot.

3.
determination.’” (D.P., supra, at p. 282; see Ghost Golf, Inc. v. Newsom (2024) 102
Cal.App.5th 88, 100.)
The majority elects to exercise discretion to reach the merits, finding the parties’
dispute presents issues of broad public interest likely to recur. I remain unpersuaded we
should do so, even to the extent we may have discretion to reach this otherwise moot
appeal under the public interest exception.
Although it is clear that renaming public streets falls within the broad scope of
general public interest, that alone does not justify invoking the public interest exception
to reach the merits, and I respectfully disagree it justifies the majority’s election to do so.
As an initial matter, it is not clear how likely these issues are to recur. (In re William M.
(1970) 3 Cal.3d 16, 23 [court may reach moot case where it poses an issue of broad
public interest “that is likely to recur”].) City notes that government entities frequently
name and rename streets after individuals who have made significant contributions to
society, and the majority concludes it is, therefore, conceivable the issues presented here
will arise again elsewhere. But this is a non sequitur: the majority points to no evidence
or authority suggesting the bulk of these government actions is anything but routine.
That governmental entities undisputedly name or rename streets after notable citizens as
part of their ordinary duties says nothing about how likely this legal controversy is to

4.
recur, especially because the circumstances here strike me as particularly unique. 2 While
I agree that anything is theoretically possible, I am unable to conclude with confidence
“‘there is reasonable probability that the same questions will again be litigated and
appealed .…’” (Friends of Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist.
(1994) 28 Cal.App.4th 419, 425.)
As the majority notes, there is a paucity of case authority in this context,
suggesting the parties’ dispute and the issues raised are uncommon and unique. The
governmental setting for street naming and renaming probably contributes to this rarity:
a government entity’s power to name and rename streets is tethered to the democratic
process, and the government officials who participate in these decisions remain
accountable to their constituents. This political reality likely informs the types of street
names proposed and adopted, ultimately tempering the need for judicial intervention.
But even if recurrence is reasonably probable simply because government entities
name and rename streets with frequency, I am unpersuaded we should exercise our
discretion in this case to issue an advisory opinion, particularly one with constitutional
dimensions. Courts have more frequently exercised their discretion under the public
interest exception when, due to a dispute’s inherently temporary nature, any appeal will

2 Based on the complaint allegations, two of the three renamed streets have been in
existence for over 150 years, bearing strong connections to African-American and Armenian-
American history and heritage while having no special affiliation with Cesar Chavez. There had
been a previous attempt in 1993 to rename these streets as Cesar Chavez Boulevard, but that
resolution was met with such vocal opposition, the decision was reconsidered. In April 2023,
after City again proposed renaming the three streets for Cesar Chavez, the Fresno County Board
of Supervisors declined to rename those streets in its jurisdiction, leaving county islands within
city limits bearing the original street names, meaning the street name change would not apply to
one contiguous segment. Further, inasmuch as the name change itself was unpalatable to
plaintiff, City’s specific process for notifying and allowing public input was a source of
contention and another element of plaintiff’s claims. In other words, the claims here arose in a
very particular historical context and involved fact-specific practical logistic issues and City’s
particular actions in effecting the change—a confluence of circumstances that seems unlikely to
repeat and give rise to the same legal questions.

5.
typically become moot before it can be adjudicated. (See, e.g., In re Kerry K. (2006) 139
Cal.App.4th 1, 4 [“[a]ppellate courts have shown a particular willingness to exercise such
discretion when an issue is otherwise likely to evade appellate review due to its
inherently temporary nature”]; In re Schuster (2019) 42 Cal.App.5th 943, 952 [many
formulations of the public interest exception are stated as one that may evade review
because the controversy is so short lived; this represents “a strong reason to decide an
issue” although technically moot]; accord, In re Robin M. (1978) 21 Cal.3d 337, 341,
fn. 6.) Without appellate review of disputes of this nature, the interests of justice may not
be served: parties will be denied any remedy repeatedly, potentially erroneous rulings
will not be addressed, and important legal issues will remain unresolved, possibly leading
to recurring disputes that will similarly become moot before they can be reached by the
courts.
This appeal, however, does not present the exigency of a time-sensitive public
interest dispute where fairness weighs more strongly in favor of issuing an advisory
opinion. The nature of the parties’ dispute here is not ephemeral and, under ordinary
circumstances, it does not tend to evade review. Because the appeal was mooted by
City’s reversion of the street names, effectively granting plaintiff the ultimate relief it
sought, plaintiff does not walk away empty handed. It is a fundamentally different
circumstance when a plaintiff loses the ability to obtain any potential relief because the
clock ran out on the dispute during the pendency of the appeal. For example, in Kunde v.
Seiler (2011) 197 Cal.App.4th 518, the question presented was whether a party’s
electioneering materials and a request for contributions could be included in the official
mailing of a sample voting ballot. (Id. at pp. 523–524.) The question on appeal became
moot once the election was over, but the court exercised discretion to reach the merits
under the public interest exception given the short timeframe between the mailing of
sample ballots and the election (approximately one month)—the issue was generally
evasive of timely appellate review, and that evasiveness itself precluded the plaintiff from

6.
obtaining any potential remedy. (Id. at pp. 527–528.) Neither circumstance is present
here.
Additionally, the novelty of the parties’ dispute is a reason to abstain from, rather
than embrace, issuing an advisory opinion. The dearth of decisional law in this type of
street-renaming context leaves us with very few factual or analytical comparators. With
such a limited universe to consider, I am disinclined, for example, to foreclose (at the
demurrer stage) the possibility that free speech principles could ever be implicated by the
naming or renaming of streets or other public asset, or to suggest that City’s power to
name (or rename) streets, from a constitutional standpoint, is virtually absolute. Without
the aid of varying factual scenarios and critical thought-percolation among other courts
and litigants in this context, our review of the issues is necessarily disadvantaged and
potentially even myopic. While that is always a challenge in addressing unprecedented
disputes, I am unconvinced we should endeavor to do so in an advisory capacity,
particularly when the likelihood of recurrence is speculative.
I am especially reticent to do so given the constitutional facets presented. In our
state courts, the mootness doctrine rests on a principle of judicial restraint that limits
courts from issuing advisory opinions on “‘“moot questions or abstract propositions”’” or
“‘“to declare principles or rules of law which cannot affect the matter .…”’” (D.P.,
supra, 14 Cal.5th at p. 276.) In deciding questions of constitutional magnitude, we are
also guided by another “‘cardinal principle of judicial restraint’”: “‘if it is not necessary
to decide more, it is necessary not to decide more.’” (People v. Contreras (2018) 4
Cal.5th 349, 381, quoting PDK Laboratories Inc. v. U.S. Drug Enforcement
Administration (D.C. Cir. 2004) 362 F.3d 786, 799 (conc. opn. of Roberts, J.).) This is a
variant of the general rule that courts will not render purely advisory opinions, especially
as it pertains to constitutional questions. (See Johnson v. Bradley (1992) 4 Cal.4th 389,
415–416 (conc. & dis. opn. of Mosk, J.) [observing general rule that courts do not reach
constitutional questions unless absolutely required to do so to dispose of the matter,

7.
especially when the question is moot].) I would leave these issues for resolution in the
context of a live controversy where effectual relief can be granted, and where, at least
potentially, the thought-landscape on these issues may be more advanced, better
positioning us, or another court, to develop the law in this context.
The local controversy over Cesar Chavez Boulevard was resolved by the same
political process through which it began, and the legal issues were mooted. The
majority’s opinion offers no new legal principles, nor does it make any important
clarifications of existing law. I find no compelling justification for weighing in on this
now-moot controversy. While there may be compelling reasons in other cases to reach
novel disputes of constitutional magnitude under the public interest exception to
mootness, they are not present here. 3
Under the circumstances, I would not exercise discretion to reach the merits and
would, instead, dismiss the appeal as moot. As such, I respectfully dissent.

MEEHAN, J.

3 Plaintiff also maintains we should reach the merits because material questions remain for
the court’s determination. “A material question exists when the judgment, if left unreversed,
would preclude a party from litigating its liability on an issue still in controversy.” (Viejo
Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200, 205.) Plaintiff does not explain how the
court’s resolution of the legal issues it identifies would encompass plaintiff’s future and
contingent legal rights such that the appeal should not be dismissed as moot. (See Eye Dog
Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 & fn. 2; cf.
Lake Lindero Homeowners Assn., Inc. v. Barone (2023) 89 Cal.App.5th 834, 844 [material
question for court’s determination encompassed the defendant’s future and contingent legal
rights under the homeowner’s association bylaws and statutes governing recall of the board of
directors].)

8.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
A171375
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. 17-CR-027923)
TERRY GORDON,
Defendant and Appellant.

Terry Gordon (appellant) appeals from his convictions for two counts of
assaulting a peace officer. We reject his various claims and affirm.
BACKGROUND
In June 2024, a jury convicted appellant of two counts of assaulting a
peace officer (Pen. Code, § 245, subd. (c)),1 and found true allegations of eight
prior convictions. The trial court sentenced appellant to 9 years 116 days in
prison.

1 All undesignated statutory references are to the Penal Code.
We omit
background facts about the offenses, which are not relevant to our resolution
of the appeal.

1
 DISCUSSION
I. Appellant’s Absence From Trial
Appellant argues reversal is required because he was not personally
present for any part of his trial. We reject the claim.
A. Legal Background
“A criminal defendant’s right to be present at trial is protected under
both the federal and state Constitutions.” (People v. Gutierrez (2003) 29
Cal.4th 1196, 1202.) “Sections 977 and 1043 implement the state
constitutional protection.” (Ibid.; see § 1043, subd. (a) [“Except as otherwise
provided in this section, the defendant in a felony case shall be personally
present at the trial”].) “A defendant’s right to presence, however, is not
absolute. The high court has stated that a defendant’s ‘privilege may be lost
by consent or at times even by misconduct.’ ” (Gutierrez, at p. 1202.)
Section 1043, subdivision (f)(1) provides, “A trial shall be deemed to
have commenced in the presence of the defendant for purposes of subdivision
(b),[2] . . . if the court finds, by clear and convincing evidence, all of the
following to be true: [¶] (A) The defendant is in custody and is refusing,
without good cause, to appear in court on that day for that trial. [¶] (B) The
defendant has been informed of their right and obligation to be personally
present in court. [¶] (C) The defendant has been informed that the trial will
proceed without the defendant being present. [¶] (D) The defendant has been
informed that they have the right to remain silent during the trial. [¶] (E)

2 Section 1043, subdivision (b) sets forth circumstances under which

“[t]he absence of the defendant in a felony case after the trial has commenced
in their physical presence shall not prevent continuing the trial to, and
including, the return of the verdict,” including, “(2) Any prosecution for an
offense which is not punishable by death in which the defendant is
voluntarily absent.”

2
The defendant has been informed that their absence without good cause will
constitute a voluntary waiver of any constitutional or statutory right to
confront any witnesses against them or to testify on their own behalf. [¶] (F)
The defendant has been informed whether or not defense counsel will be
present.” The statute provides the court “shall state on the record the
reasons for the court’s findings and shall cause those findings and reasons to
be entered into the minutes,” and directs that, “[i]f the trial lasts for more
than one day, the court is required to make the findings required by this
subdivision anew for each day that the defendant is absent.” (§ 1043,
subd. (f)(2)–(3).)
B. Additional Background
The complaint was filed in September 2017 and appellant was held
without bail. An information was filed in March 2019.
In December 2020, a hearing minute order indicated that appellant
refused to appear in court. Nearly three years later, the trial court issued an
order documenting “some 24 refusals to come to court dating back to
December of 2020” and ordered that, on November 29, 2023, should appellant
“once again refuse to come to court that he be extracted from his cell and
transported to” the trial court “to set trial dates and for the defendant to be
admonished by the court pursuant to Penal Code Section 1043.5.” (Boldface
& italics omitted.) The order authorized the sheriff’s office to use “any
reasonable force necessary.”
On November 29, 2023, the court (Judge Delucchi), counsel, and a court
reporter went to appellant in a “holding tank” at the courthouse. The trial
court admonished appellant: “pursuant to Penal Code section 1043, I am
hereby informing you of your right and obligation to be personally present in
court for your trial. [¶] I’m informing you that your trial will . . . proceed

3
without your being present. [¶] I’m informing you that you have a right to
remain silent during your trial. I’m informing you that your absence from
your trial without good cause will constitute a voluntary waiver of any
Constitutional or Statutory Right to confront any witnesses against you or to
testifying on your own behalf, and I’m informing you that your Defense
Counsel will be present at your trial. [¶] Your trial date is hereby set for
March 11, 2024 with a readiness date of March 7th, 2024. Your attorney is
here and can talk to you. We’ll see you in March. Thank you.”
Appellant refused to appear at court hearings on February 1, February
16, and March 11, 2024. On March 11, the trial court ordered that, on March
13, appellant “be extracted from his cell using reasonable force” and brought
to court. On March 13, appellant was transported to the courthouse but
refused to come to the courtroom. The trial court (Judge Cramer), attorneys,
and a court reporter again went to appellant in the holding cell. The
reporter’s transcript indicates appellant was “screaming out loud” throughout
the attempted proceeding, which the court concluded after finding, “He’s not
going to hear anything I say.” After returning to the courtroom, the trial
court stated for the record that, before the holding cell door was opened, the
court could see appellant sitting calmly in a wheelchair. As soon as the door
opened, appellant “began wailing . . . , just kind of an uncontrolled wail” and
appeared to be “making every effort to fall forward out of the wheelchair onto
the floor.” The court “was unable to read him the Penal Code Section 1043
admonition that the trial would proceed in his absence.” Although
appellant’s conduct “appeared contrived,” it was possibly “due to some mental
illness,” so the court found substantial evidence of incompetence to stand
trial, appointed two psychiatrists to review competency, and suspended trial

4
proceedings. On May 1, after considering two psychiatric reports, the trial
court found appellant competent to stand trial. Trial was set for May 20.
On May 20, 2024, appellant again refused to come to court. The trial
court (Judge Madden) stated, “For the record, this is a case from 2017. The
Court reviewed just the history in particular of [appellant] not coming to
court. There was an extraction order that was filed on November 28th, 2023,
that was signed by Judge Paul Delucchi. This is after there had been 23
refusals on the part of [appellant]. [¶] [Appellant] was brought in, and Judge
Delucchi did admonish him pursuant to Penal Code section 1043. He has
been fully admonished, and we are going to proceed in his absence.” The
court directed, “[E]very day the Court is in session, the order forthwith is that
the Sheriff’s Department makes an attempt to bring [appellant] in.”
On May 21, 2024, the bailiff informed the court that appellant refused
to come to court, and the court stated, “[F]or the record, he was fully
admonished pursuant [to] Penal Code section 1043 on November 29th of last
year. We are proceeding.” Jury selection took place on May 22 and 28, 2024.
The minute orders for both days indicate that appellant refused to appear
and that trial proceedings would continue pursuant to section 1043. On each
day of the jury trial up to and including the reading of the verdict, appellant’s
refusal to appear was documented and the trial court stated it was
proceeding pursuant to section 1043.
C. Analysis
Appellant argues the trial court erred in failing to expressly make each
section 1043, subdivision (f)(1) finding on each day of trial. We need not
decide this issue—or whether the claim is forfeited, as the People contend—
because any error was harmless.

5
 Appellant contends the error is structural, but our Supreme Court has
repeatedly held otherwise. (See People v. Perry (2006) 38 Cal.4th 302, 312
[“Erroneous exclusion of the defendant is not structural error that is
reversible per se, but trial error that is reversible only if the defendant proves
prejudice”]; People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 23 [same].)
Appellant argues these cases involved the exclusion of the defendant from
only part of the proceedings, rather than from the entire trial, but the
Supreme Court’s holdings regarding reversible error were not so limited.
The parties dispute the appropriate standard of prejudice, but this we
also need not decide. Appellant had refused to come to court dozens of times
for well over three years before trial started. The trial court twice ordered
appellant forcibly removed from jail to come to court, and both times
appellant refused to leave the court holding tank. Both times, the bench
officer went to the holding tank to either deliver or attempt to deliver the
section 1043, subdivision (f) admonishments. On each day of trial, deputy
sheriffs attempted to transport appellant to court and each day appellant
refused. There is no basis whatsoever in the record to find that, had
appellant been readmonished each trial day and/or had the trial court made
additional express findings on the record, appellant would have appeared in
court for any part of his trial. We hold any error harmless beyond a
reasonable doubt.
II. Defense Counsel’s Motion to Withdraw
Appellant argues the trial court abused its discretion in denying
defense counsel’s motion to withdraw. We disagree.
A. Additional Background
In January 2024—after appellant had been refusing to come to court
for more than three years, and two months before the then-set trial date—

6
defense counsel filed a motion to withdraw. Counsel had been representing
appellant since October 2021. Counsel submitted a declaration averring an
“irreconcilable conflict of interest has developed,” appellant “refuses to meet
with me . . . and refuses to cooperate in any way with his defense,” and
appellant “has written me requests to withdraw and has complained to the
State Bar about my representation on several occasions.”
A hearing on the motion was held on March 13, 2024, the second day
appellant was forcibly brought to the courthouse but refused to come to the
courtroom. Defense counsel reported that, before the hearing, appellant
“indicated he wanted to show me some papers that I couldn’t really see. And
he said I was under investigation. And then he left the interview room.” The
papers were apparently recent State Bar complaints about defense counsel.
The prosecutor stated, “[W]e know that he’s kind of played the same
game with [the] Public Defender’s Office and made them kind of have to
withdraw because of the complaints that he was making about them.[3] [¶] So
I think by letting [defense counsel] out, we’re just going to get a new attorney
and go through the same thing again. And at what point do we say these are
just games being played by the defendant and we can’t just age this case
because he’s doing that.” After reviewing appellant’s history of not coming to
court, the court told defense counsel, “I understand . . . his refusal to ever
communicate with you makes it very, very difficult for you to effectively
represent him. But the way I view it is that is a conscious tactical decision on
his part and not an inability.”
Defense counsel argued, “[M]y limited understanding of his history on
this case with the other attorneys was he wasn’t vehemently opposed to their

3 The public defender’s office declared a conflict of interest in October

2021, and appellant’s trial counsel was appointed at that time.

7
representation to the degree that he has communicated to me. He does write
me letters. He does write letters that I take to be threatening. Not
physically threatening. He’s complained to the State Bar. I think he merely,
with the Public Defender’s Office, but I can’t say with any certainty, he just
filed a complaint. And they said well, we got a conflict because he filed a
complaint. He’s filed at least two complaints against me. [¶] . . . [T]his
relationship I have with him has grown to the point where it’s irreconcilable
in getting us back together. I just feel it’s in my client’s best interest that I
bring this withdraw motion to be granted and he gets a shot with some other
attorney through his approval. He clearly does not want to be represented by
me. Just no doubt in my mind. And he refuses to participate in any
meaningful communication about this case with me.”
The court noted, “[I]f [appellant] wanted to come to court and run a
Marsden motion, I’d be happy to hear it, but he’s not even doing that.”4 The
court agreed with defense counsel that appellant “is clearly hindering your
ability” to represent him, but found that “he is doing that consciously, not
because he’s unable to.” The court denied the motion to withdraw.
B. Analysis
“The determination whether to grant or deny a motion by an attorney
to withdraw is within the sound discretion of the trial court and will be
reversed on appeal only on a clear showing of abuse of discretion.” (People v.
Sanchez (1995) 12 Cal.4th 1, 37, disapproved on another ground by People v.
Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) “The case law establishes that
the court has discretion to deny an attorney’s request to withdraw where

4 Appellant made numerous motions pursuant to People v. Marsden

(1970) 2 Cal.3d 118 earlier in the proceedings when the public defender was
representing him.

8
such withdrawal would work an injustice or cause undue delay in the
proceeding. [Citations.] But the court’s discretion in this area, as elsewhere
in the law, is one to be exercised reasonably.” (Mandell v. Superior Court
(1977) 67 Cal.App.3d 1, 4.)
The trial court could reasonably find that appellant’s conduct in
refusing to talk to defense counsel and filing complaints against counsel was
a conscious effort to further delay the trial, that the conduct would likely be
repeated with any subsequent counsel as it had been with his previous
counsel, and that granting the motion would therefore cause undue delay in
the proceeding. Appellant has failed to establish an abuse of discretion.
III. Ineffective Assistance of Counsel
In his opening brief, appellant argues trial counsel was constitutionally
ineffective in failing to object to the dual use of facts at sentencing. However,
in his reply brief, appellant declines to respond to arguments raised in the
response brief, noting that he “ha[s] been released from prison after serving
the custodial term imposed by the trial court.” Appellant does not argue this
claim is not mooted by his release, and we find it has been so mooted.5

5 “Although a defendant’s excess custody credits may be applied to

reduce a fine imposed by the trial court, such excess credits may not be
applied to reduce victim restitution, a restitution fine, the court operations
assessment, or the court facilities assessment.” (People v. Petri (2020) 45
Cal.App.5th 82, 92.) No reducible fines were imposed by the trial court.

9
 DISPOSITION
The judgment is affirmed.

SIMONS, J.

We concur.
JACKSON, P. J.
CHOU, J.

(A171375)

10


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A172793
v.
LUIS ALBERTO GUTIERREZ, JR., (San Mateo County
Super. Ct. No. SC078145A)
Defendant and Appellant.

In 2014, defendant Luis Alberto Gutierrez, Jr., pleaded no contest to
one count of attempted murder, with a firearm enhancement, as well as one
count of first degree burglary. He also admitted suffering a prison prior.
Pursuant to a negotiated agreement, the trial court sentenced him to the
upper term of nine years for the attempted murder conviction, 10 years for
the firearm enhancement, 16 months for the burglary conviction, and one
year for the prison prior, totaling 21 years four months. In 2025, the trial
court resentenced defendant pursuant to Penal Code section 1172.75,1 to a
total term of 20 years four months, by striking the now invalid one-year
prison prior but otherwise declining to further modify defendant’s sentence.
Defendant maintains the trial court erred in declining to strike or to
reduce the sentence for the firearm enhancement, in assertedly making dual

1 All further statutory references are to the Penal Code.

1
use of facts in imposing the upper term and the firearm enhancement, and in
reimposing the upper term sentence for the attempted murder conviction
based on aggravating factors not stipulated to by defendant or found true
beyond a reasonable doubt by a jury.
We affirm but remand with instructions to correct the abstract of
judgment to conform to the court’s oral pronouncement striking the prison
prior enhancement.
BACKGROUND2
In August 2012, defendant was dating L.A. L.A. described R.E., who
was her uncle (and the victim of the attempted murder), as the “family child
molester.” R.E. lived with his mother G.E., who was L.A.’s grandmother.
In mid-August, defendant went to the victim’s and G.E.’s apartment.
When the victim asked why defendant had not called first, he stated he
needed to use the bathroom. Once defendant came out of the bathroom, he
walked into the living room, stood about 10 feet away from the victim and
shot him in the face, hitting him in the left, lower jaw. When the victim
asked, “ ‘Why are you doing this,’ ” defendant responded, “[H]e was doing it
because of what [the victim] had done to [G.L.],” another one of G.E.’s
granddaughters. The two of them began to struggle, and defendant fired two
more shots, neither of which hit the victim. At one point, defendant stated to
the victim, “ ‘I know what you did to the baby.’ ”
The San Mateo County District Attorney filed an amended information
alleging one count of attempted murder willfully, deliberately, and with
premeditation (§§ 664, 187, subd. (a), 189—count 1) and one count of willfully

2 As defendant pleaded no contest, the background facts are taken
from the preliminary hearing transcript, which the parties stipulated
provided a factual basis for the plea.

2
and unlawfully entering an inhabited dwelling with intent to commit larceny
(§ 460, subd. (a)—count 2). As to count 1, the information alleged defendant
personally and intentionally discharged a firearm and proximately caused
great bodily injury (§ 12022.53, subd. (d)). As to both counts, the information
further alleged defendant personally used a firearm (§ 12022.5, subd. (a)),
personally inflicted great bodily injury (§ 12022.7, subd. (a)), and the counts
were violent and serious felonies (§§ 667.5, subd. (c), 1192.7, subd. (c)).
Finally, the information alleged defendant had suffered a prison prior
(§ 667.5, former subd. (b)).
Two years later, in 2014, defendant pleaded no contest to counts 1 and
2 and admitted a firearm enhancement (§ 12022.5, subd. (a)) and the prison
prior enhancement, as well as other allegations in exchange for an aggregate
sentence of 21 years four months. The term consisted of the upper term of
nine years for the attempted murder count (count 1), 16 months for the
residential burglary count (count 2), 10 years for the firearm enhancement,
and one year for the section 667.5 prison prior.
Eight years later, in 2022, the trial court appointed counsel and set a
hearing for resentencing pursuant to section 1172.75 (former § 1171.1).
In advance of the hearing, defendant filed a petition requesting that
the court strike the now-invalid prison prior enhancement pursuant to
section 1172.75 and strike the 10-year firearm enhancement pursuant to
section 1385 or alternatively reduce the sentence “to the mitigated term of
three years based on his substantial rehabilitation” and several other
circumstances, including that he was a “survivor of [the victim’s] sex assault
when [he] was a preteen.” Further, he was now “almost 40 years old,” and
assertedly “past the age when criminogenic factors play a role in a person’s
social behavior,” he had “been clean and sober for more than 10 years—since

3
his commitment,” and he had had no prison rule violations since November
2022.
In support of his petition, defendant attached a report by a social
worker who had interviewed him and reviewed his records and set forth her
opinions to provide the court with “information pertaining to complex
childhood trauma and the resulting impact on [defendant’s] life.” Defendant
also attached a report from one Richard Subia, a “public safety consultant
providing information and consultation on various issues related to in-
custody detention, risk assessments, street gangs and prison gangs, and
overall operations of prison facilities throughout the nation.”
At the resentencing hearing, the trial court first heard from Mr. Subia,
“an expert in the area of state prison corrections with a particular focus on
state prison gang validation criteria and the process for how one becomes
validated” and “on the subject of whether a person’s prison record
demonstrates that they are an unreasonable risk to public safety.” Subia
observed that although defendant’s “C-file” indicated he has a gang tattoo,
the Department of Corrections had not “validated” him “as a member or
associate of any gang.” And while Subia also acknowledged defendant had
incurred multiple prison rule violations—11 over the course of his
imprisonment—based on the “rehabilitative programming” in which
defendant has participated, he was of the opinion defendant “does not pose an
unreasonable risk to public safety.”3
The court then heard from counsel.
The People requested the court strike the now-invalid one-year prison
prior enhancement but otherwise maintain the sentence. The People pointed
out defendant had been “on parole for a crime of violence” at the time of the

3 Defendant’s girlfriend also spoke as a character witness.

4
attempted murder offense, and the offense had involved trying “to kill
someone by going into an apartment and sh[ooting] them.” As for defendant’s
in-custody conduct, the prosecutor pointed out defendant had engaged in
“multiple fights and managed to get a new conviction for violence.” Counsel
further observed the fights “only stopped once [defendant] was housed in
isolation. The Court should be concerned because when he gets out, he
doesn’t have that luxury. He doesn’t get to choose who he’s around.”
Defense counsel, in turn, read a letter from defendant in which he
detailed his rehabilitative efforts. Counsel next went through the mitigating
circumstances applicable to defendant. As to “post-conviction factors,”
counsel asserted the evidence “reflects that circumstances have changed since
the original sentencing,” pointing to defendant’s participation in
programming and coursework. Counsel argued “there is substantial evidence
before the Court that [defendant] is committed to his sobriety, to maintaining
his sobriety, and that he is—he has prepared himself quite well for reentry,
and that he will be very successful . . . if he reenters to a rehabilitation
program.”
The trial court began by agreeing with Subia’s testimony that
defendant is not a gang member and is not affiliated with any gangs.
However, the court disagreed with Subia’s “risk assessment and the
evaluation of [defendant’s] behavior in prison.”
Although there were “some significant and mitigating circumstance[s]
and factors under Penal Code Section 1385(c)(2),” including “prior
victimization and childhood trauma and possibly due to mental illness,” the
court concluded dismissing the firearm enhancement or imposing lesser
terms for the attempted murder and enhancement would endanger public
safety. Defendant’s “record of violence,” stated the court, began in 2006 with

5
a misdemeanor assault conviction. In 2011, he was convicted of felony
assault, while on parole. He was also on parole during the instant offense.
His conduct in prison included 11 rule violations “that go all the way up to
2022.” Moreover, of the 11 violations, 10 “involved serious and violent
behavior.” All of the fights in which defendant engaged in were “mutual”
except one, and the one that was not, led to another conviction for assault
with force likely to cause great bodily injury on an inmate, for which he was
given an additional four-year sentence.
The court also pointed to the social history report defendant had
submitted in which the social worker opined defendant was only “now
beginning to process his trauma.” While the court commended defendant for
the two or three years of programming he had done, it concluded “he needs to
do a lot more, a lot more counseling and programming and help before he’s no
longer a threat to public safety.” The court further pointed out defendant
was in a “controlled environment in a single cell” while incarcerated but on
release would be “facing a lot more stressors on the street. Nothing can
prevent him from walking away, for example, [from] a drug or treatment
program if things got too difficult for him there.”
The court additionally ruled that even apart from the issue of public
endangerment, dismissal of the firearm enhancement would not be in the
“furtherance of justice.” Taking a “holistic approach,” the court concluded the
aggravating factors were “too significant” and outweighed the mitigating
factors. The court also observed defendant had received a “significant benefit
of getting a determinate sentence,” as he had been “facing something like 48
years to life.” And he was now “getting another benefit of striking the one-
year prior.”

6
 The trial court thus declined to strike or reduce the sentence for the
firearm enhancement and imposed the original sentence minus the one-year
enhancement, resulting in an aggregate sentence of 20 years four months.
The court further noted it was imposing the upper term of nine years on
count 1 because defendant’s prior convictions as an adult were numerous and
of increasing seriousness, and was imposing the upper 10-year term on the
firearm enhancement because defendant was on parole at the time the
offense was committed.
DISCUSSION
Section 1172.75
“In 2021, the Legislature enacted section 1172.75, which provides that
‘[a]ny sentence enhancement that was imposed prior to January 1, 2020,
pursuant to [section 667.5, subdivision (b)], except for any enhancement
imposed for a prior conviction for a sexually violent offense . . . is legally
invalid.’ (Id., subd. (a).) The statute sets forth a procedure for identifying
and resentencing individuals whose sentences include such a ‘legally invalid’
enhancement. First, . . . the Department of Corrections and Rehabilitation
(CDCR) ‘shall identify those persons in [its] custody currently serving a term
for a judgment that includes an [invalid section 667.5, subdivision (b)]
enhancement . . . and shall provide the name of each person, along with the
person’s date of birth and relevant case number or docket number, to the
sentencing court that imposed the enhancement.’ (Id., subd. (b).) ‘Upon
receiving [such information from the CDCR], the court shall review the
judgment and verify that the current judgment includes a[n invalid
section 667.5, subdivision (b)] enhancement. . . . If the court determines that
the current judgment includes an [invalid] enhancement . . . , the court shall

7
recall the sentence and resentence the defendant.’ (Id., subd. (c).)” (People v.
Washington (2026) 117 Cal.App.5th 1057, 1062, fns. omitted (Washington).)
“Section 1172.75, subdivision (d) explains what happens at
resentencing after the CDCR has identified the defendant and the court has
verified their eligibility for relief:
“ ‘(1) Resentencing pursuant to this section shall result in a lesser
sentence than the one originally imposed as a result of the elimination of the
repealed enhancement, unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public safety.
Resentencing pursuant to this section shall not result in a longer sentence
than the one originally imposed.
“ ‘(2) The court shall apply the sentencing rules of the Judicial Council
and apply any other changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to promote
uniformity of sentencing.
“ ‘(3) The court may consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of the
defendant while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced the
defendant’s risk for future violence, and evidence that reflects that
circumstances have changed since the original sentencing so that continued
incarceration is no longer in the interest of justice.
“ ‘(4) Unless the court originally imposed the upper term, the court may
not impose a sentence exceeding the middle term unless there are
circumstances in aggravation that justify the imposition of a term of
imprisonment exceeding the middle term, and those facts have been
stipulated to by the defendant, or have been found true beyond a reasonable

8
doubt at trial by the jury or by the judge in a court trial.’ (§ 1172.75,
subd. (d)(1)–(4).)” (Washington, supra, 117 Cal.App.5th at pp. 1062–1063,
italics added.)
Section 1385
Under section 1385, subdivision (c)(1), “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so. . . .” Under
subdivision (c)(2) of section 1385, in exercising its discretion, “the court shall
consider and afford great weight to evidence offered by the defendant to prove
that any of the mitigating circumstances in subparagraphs (A) to (I) are
present.[4] Proof of the presence of one or more of these circumstances weighs
greatly in favor of dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.” The statute
defines “ ‘Endangering public safety’ ” to mean “there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2).)

4 The mitigating circumstances specified in section 1385,
subdivision (c)(2) are: “(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4) of subdivision (a)
of Section 745. [¶] (B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement shall be
dismissed. [¶] (C) The application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement shall be
dismissed. [¶] (D) The current offense is connected to mental illness.
[¶] (E) The current offense is connected to prior victimization or childhood
trauma. [¶] (F) The current offense is not a violent felony as defined in
subdivision (c) of Section 667.5. [¶] (G) The defendant was a juvenile when
they committed the current offense or any prior offenses, including criminal
convictions and juvenile adjudications, that trigger the enhancement or
enhancements applied in the current offense. [¶] (H) The enhancement is
based on a prior conviction that is over five years old. [¶] (I) Though a firearm
was used in the current offense, it was inoperable or unloaded.” (§ 1385,
subd. (c)(2)(A)–(I).)

9
Standard of Review
In resentencing proceedings under section 1172.75, we review the trial
court’s sentencing decision for abuse of discretion, although we review legal
issues de novo. (See People v. Mathis (2025) 111 Cal.App.5th 359, 366
(Mathis), review granted Aug. 15, 2025, S291628 [stating standard in prison
prior resentencing case].) More specifically, we similarly review for abuse of
discretion a trial court’s determination under section 1385, subdivision (c)(2)
that dismissal of an enhancement would endanger public safety. (See People
v. Gonzalez (2024) 103 Cal.App.5th 215, 225, citing People v. Mendoza (2023)
88 Cal.App.5th 287, 298 (Mendoza).)
Defendant bears the burden of demonstrating the trial court’s exercise
of its discretion was arbitrary, capricious or patently absurd, resulting in a
manifest miscarriage of justice. (Mendoza, supra, 88 Cal.App.5th at p. 298;
People v. Garcia (2024) 101 Cal.App.5th 848, 857 (Garcia) [a trial court’s “risk
finding” that dismissal of an enhancement would endanger public safety will
be upheld “ ‘if it falls within “the bounds of reason, all of the circumstances
being considered” ’ ”].)
In the trial court, defendant asserted at the first day of the two-day
resentencing hearing that the court was required to make findings under
section 1385, subdivision (c)(2) on the basis of “clear and convincing”
evidence. The trial court questioned defense counsel on this point, observing
it did not believe the clear and convincing standard applied under section
1385. The court asked, “Is there something that I’m missing?” Counsel
responded, “I was citing to . . . let me find it. Okay. Let’s see. [Section]
1171.1 applies here, but that doesn’t give the standard.” The court told
counsel she could e-mail the court and the People once she found the correct
citation. In his supplemental resentencing brief—filed before the continued

10
hearing—defendant conceded counsel had spoken in error “in citing this
burden at the hearing” and stated “[t]here is no requirement that the court
find anything by clear and convincing evidence.” (Italics omitted.) Still, in
an apparent abundance of caution, the court, in making its ruling, stated
“And even though the clear and convincing standard does not appear to be
required, I do find by clear and convincing evidence the aggravating factors
outweigh the mitigating factor.”
In his opening brief on appeal, defendant again asserts in passing that
the clear and convincing evidence standard applies. However, he offers no
argument or citation to any authority in support of that assertion and has
thus waived the issue on appeal. (See People v. Stanley (1995) 10 Cal.4th
764, 793 [assertions waived by failure to support them with reasoned
argument and citations to authority].) He also forfeited the issue on appeal
when he expressly abandoned his assertion below that the clear and
convincing evidence standard applied. (See People v. Catlin (2001) 26 Cal.4th
81, 168 [claim abandoned at trial level is waived on appeal]; Johanson
Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588
[“issues raised and then abandoned in the trial court . . . cannot be considered
on appeal”].)
In short, we will uphold the trial court’s determination, unless it
abused its discretion. (Mendoza, supra, 88 Cal.App.5th at p. 298; Garcia,
supra, 101 Cal.App.5th at p. 857.)
Trial Court Did Not Abuse Its Discretion
Defendant first complains the trial court considered only a fraction of
the evidence before it, namely his prior convictions, “a singular line in the
conclusion of the social study report” that he was only “now beginning to
process his [childhood] trauma,” and his string of prison disciplinary

11
incidents for fighting. He asserts the court ignored Subia’s testimony
explaining “the context” of the disciplinary incidents and ignored the fact he
has completed over 172 courses to develop coping and job skills, assist with
his mental health, become sober, and develop a parole and release plan.
However, the record is to the contrary. The trial court stated it
reviewed all the materials submitted in connection with the resentencing
hearing, including the social study and Subia’s report attached to defendant’s
resentencing memorandum. Additionally, although the court did not
specifically detail all of the rehabilitative efforts defendant had done, the
court was well aware of his efforts having read through the materials, and
the court made specific reference to the two or three years of programming
defendant had done through the prison, since he had been allowed to
participate.
We therefore cannot say the trial court exercised its discretion “ ‘ “ ‘in
an arbitrary, capricious or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” ’ ” (Mendoza, supra, 88 Cal.App.5th at
p. 298; Garcia, supra, 101 Cal.App.5th at p. 857 [“ ‘in absence of a clear
showing that its sentencing discretion was arbitrary or irrational, a trial
court should be presumed to have acted to achieve legitimate sentencing
objectives’ ”].) And we are mindful that, under this standard, the trial court’s
“ ‘ “decision will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 377.)
Forward-Looking Inquiry
Defendant additionally contends the trial court employed the wrong
perspective in assessing dangerousness to the public. Specifically, he claims

12
the court focused on defendant’s current dangerousness rather than
considering “dangerousness at the time of a future release date.” (Boldface &
capitalization omitted.)
In support of this argument, defendant cites to People v. Gonzalez,
supra, 103 Cal.App.5th 215. In that case, the defendant was originally
sentenced to 75 years to life, which included a term of 25 years to life for a
firearm enhancement. (Id. at pp. 219–220.) At resentencing, the defendant
urged the trial court to conduct a forward-looking evaluation of
dangerousness. That is, he maintained the court should consider
dangerousness as of the time he would be released from prison if the court
dismissed the enhancement—which in his case would be after another 50
years of incarceration. (Id. at pp. 223–224.) The trial court declined to do so,
found the defendant “ ‘presently . . . does represent a danger to society’ ” (id.
at pp. 224, 227, italics added), and “ ‘for that reason’ ” denied the request to
dismiss the enhancement (id. at p. 224).
The Court of Appeal reversed, holding the trial court had erred in its
“singular focus on whether the defendant currently poses a danger.” (People
v. Gonzalez, supra, 103 Cal.App.5th at p. 228.) “Although the current
dangerousness of the defendant is an appropriate factor to consider,” said the
court, “as it will have some bearing on whether dismissing the enhancement
would endanger the public, a crucial part of the inquiry is how the dismissal
of the enhancement will impact the length of the defendant’s sentence. A
currently dangerous defendant who will be released from prison within a
short timeframe might be found by the trial court to pose a greater danger to
the public than a defendant who is currently dangerous but who has no
prospect of release from prison until he is elderly.” (Ibid.)

13
 To begin with, defendant also forfeited this issue since he failed to raise
it below. He never argued in his resentencing briefs that the public safety
analysis must be “forward looking,” let alone argued at the hearing that the
trial court was not taking a sufficiently broad perspective on this factor.
“[C]omplaints about the manner in which the trial court exercises its
sentencing discretion and articulates its supporting reasons cannot be raised
for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 356; People
v. Gonzalez, supra, 103 Cal.App.5th at p. 225.) “Although the court is
required to impose sentence in a lawful manner, counsel is charged with
understanding, advocating, and clarifying permissible sentencing choices at
the hearing.” (People v. Scott, at p. 353.)
Furthermore, even assuming the issue was preserved,5 the record does
not demonstrate that the trial court singularly focused on whether the
defendant currently poses a danger. Indeed, unlike in People v. Gonzalez, not
only did defendant never raise the issue, but the trial court never stated, as
did the trial court in that case, that it found defendant “currently” posed a
danger to the public. (See People v. Gonzalez, supra, 103 Cal.App.5th at
pp. 224, 228.) We cannot, of course, presume the trial court made such an
error. To the contrary, all presumptions and intendments must be made in
favor of the court’s judgment, and the appellant must affirmatively
demonstrate error. (See People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7 [“ ‘ “A
judgment or order of the lower court is presumed correct. All intendments

5 In his opening and reply briefs, defendant generally contends that to
the extent the sentencing issues raised in his appeal were not fully preserved
by objection below, he received ineffective assistance of counsel. We therefore
exercise our discretion to reach the issue to forestall any ineffective
assistance of counsel claim. (People v. Torres (2025) 113 Cal.App.5th 88, 92.)

14
and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. . . .” ’ ”].)
Defendant points to the trial court’s statements regarding his “prior
convictions, with the most recent being the in-custody assault conviction in
2015,” his “incidents for ‘fighting’ . . . while in custody, which took place
between 2014 and 2022,” and his “ ‘very impressive’ but ‘baby steps’ to ‘turn
his life around’ in the preceding two to three years” which, while laudable,
were “not sufficient to support a lesser term.” He construes these statements
as collectively demonstrating “that the court did not adequately consider it
had discretion to impose a lesser term that did not require an immediate
release from prison and assess his dangerousness at the time of eventual
release. . . .”
To begin with, People v. Gonzalez, itself, holds that a defendant’s
current dangerousness is an appropriate factor to consider, and defendant
points to no case law which states a trial court may not consider current
dangerousness or a petitioner’s in-custody disciplinary record. (Cf. People v.
Gonzalez, supra, 103 Cal.App.5th at p. 228 [“the current dangerousness of the
defendant is an appropriate factor to consider, as it will have some bearing on
whether dismissing the enhancement would endanger the public”].)
Furthermore, the trial court was well aware of the option to impose a
lesser sentence for the enhancement, which would result in further
incarceration and a later release. Defense counsel repeatedly reminded the
court of that option and suggested several reduced-sentence options the court
could impose. Indeed, just before the court pronounced sentence, counsel
inquired “would the Court consider the midterm because . . . striking the
enhancement is not the only option.” The court indicated it understood the
option to reduce the sentence but declined to do so.

15
 In sum, it could not have been lost on the trial court, and we certainly
would make no assumption of such, that a lesser sentence, rather than a
dismissal, would extend defendant’s incarceration, allowing for further
rehabilitative efforts. The implication, in the absence of anything to the
contrary in the record, is that the court understood that this called for some
additional consideration of the danger to the public at that time. (See People
v. Brugman (2021) 62 Cal.App.5th 608, 637 [“ ‘The trial court is not required
to state reasons for declining to exercise its discretion under section 1385’
[citations], and ‘is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary.’ ”].)
We further observe that even had the trial court imposed a lesser term
for the firearm enhancement, defendant’s situation would have differed very
significantly from that of the defendant in People v. Gonzalez, who faced a 50-
year to life sentence even if the trial court dismissed the enhancement.
(People v. Gonzalez, supra, 103 Cal.App.5th at pp. 230–231.) By comparison,
a defendant “who would obtain immediate release if the petition is granted
poses a different potential danger to society than a defendant who could be
released only in his or her 70s.” (People v. Williams (2018) 19 Cal.App.5th
1057, 1063.) Here, defendant was 39 years old at the time of resentencing,
and he had served approximately 13 years of his 20-year, four-month
sentence. Thus, even considering the consecutive four-year term defendant
received for his in-custody conviction, defendant’s incarceration status was a
far cry from the 50 years the defendant faced in People v. Gonzalez; nor would
defendant be in his 70’s upon release. Furthermore, the time span
differential in defendant’s release would have been much shorter than that in
People v. Gonzalez, had the trial court, as defendant had urged, imposed the
midterm of four years or the low term of three years. In other words,

16
defendant was not looking at a release date decades down the road, calling
for a dangerousness assessment as of that time.
We therefore conclude defendant has not established an abuse of
discretion in denying defendant’s request to dismiss or reduce the sentence
imposed for the firearm enhancement.
Given our determination, we need not address defendant’s claim that
“in light of [the trial court’s] erroneous conclusion regarding ‘danger to public
safety,’ ” the trial court “failed to give adequate weight to [his] mitigation to
reduce his originally imposed aggravated term.” (Boldface & capitalization
omitted.) (People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038 [courts “must
assign significant value” to section 1385 mitigating circumstances only in
cases where the trial court “does not find that dismissal would endanger
public safety”].)6
Dual Use of Facts
Defendant next contends the trial court erroneously relied on the same
fact—that he was armed with or used a firearm at the time of the commission
of the crime—for imposing upper terms for both the attempted murder
conviction and the firearm enhancement.
Again, defendant made no objection to any asserted “dual use” of facts
at the time of sentencing and thus has forfeited the issue. (People v. Scott,
supra, 9 Cal.4th at p. 356 [“[C]omplaints about the manner in which the trial
court exercises its sentencing discretion and articulates its supporting

6 Defendant also cites in passing to section 1170, subdivision (b)(6),
which creates a low term presumption if certain mitigating circumstances are
found to have been contributing factors to the offense. But he makes no
argument and cites to no authority that that section is applicable, and has
therefore waived any such argument on appeal. Nor did he ever argue in the
trial court that he was entitled to the low term pursuant to that statute and
therefore has forfeited the issue as well.

17
reasons cannot be raised for the first time on appeal.”]; People v. Erdelen
(1996) 46 Cal.App.4th 86, 90–91 [defendant’s failure to object forfeited dual
use argument].)
But even if defendant had preserved his dual use argument for appeal,
it is meritless. The trial court stated on the record it imposed the upper term
for count 1 because defendant’s prior convictions as an adult are numerous
and of increasing seriousness, and imposed the upper term on the firearm
enhancement because defendant was on parole at the time the offense was
committed.
Imposing Upper Term Sentence on Count 1
Defendant lastly contends the trial court improperly imposed an upper
term sentence for the attempted murder conviction based on aggravating
factors not found true by a court or jury or stipulated to by him, in
contravention of section 1170, subdivision (b).
To begin with, this is another issue defendant failed to raise in the trial
court and has thus forfeited on appeal. (See People v. Brannon-Thompson
(2024) 104 Cal.App.5th 455, 464–465 (Brannon-Thompson) [the defendant
forfeited claim that resentencing court failed to consider § 1170, subd. (b) in
again imposing upper term].) But even had defendant not done so, we would
conclude his argument lacks merit.
Section 1172.75, subdivision (d)(4) uniquely provides: “Unless the court
originally imposed the upper term, the court may not impose a sentence
exceeding the middle term unless there are circumstances in aggravation
that justify the imposition of a term of imprisonment exceeding the middle
term, and those facts have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Italics added.)

18
 As the parties acknowledge, the Courts of Appeal differ on the
significance of this language. (Compare People v. Lua (2026) 121 Cal.App.5th
472, 477–479 [holding § 1172.75, subd. (d)(4) creates an exception to the
heightened factfinding requirement of § 1170]; People v. Dozier (2025)
116 Cal.App.5th 700, 711–716, review granted Feb. 11, 2016, S294597
[same]; Mathis, supra, 111 Cal.App.5th 359, 369–374 [narrower holding that
heightened factfinding is not required when trial court elects to reimpose an
upper term sentence that complied with Sixth Amendment when originally
imposed]; Brannon-Thompson, supra 104 Cal.App.5th at pp. 466–467
[holding plain language of § 1172.75, subd. (d)(4) confirms “Legislature
intended the new burden of proof amendments to section 1170, subdivision
(b) apply only if the trial court is imposing the upper term for the first time at
a section 1172.75 resentencing,” and not in reimposing the upper term]; with
People v. Gonzalez (2024) 107 Cal.App.5th 312, 327–330 (Gonzalez)
[acknowledging “the plain language of section 1172.75, subdivision (d)(4), on
its face, could be interpreted as not requiring proof of aggravating factors
before reimposing an upper term,” but holding “another reasonable
interpretation of . . . subdivision (d)(4) would simply restrict the scope of
defendants eligible to receive the upper term at resentencing to those who
previously received the upper term, instead of creating a condition or
exception independently justifying the imposition of the upper term”].)
The issue is currently pending before our Supreme Court in People v.
Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025,
S289903, in which the Court of Appeal followed the reasoning of Brannon-
Thompson. (People v. Eaton (Cal.Ct.App. 2025) 2025 WL 814818, at p. *1.)
Defendant urges us to follow Gonzalez, while the Attorney General
urges us to follow the growing Brannon-Thompson line of cases. We agree

19
with the latter cases that the section 1172.75, subdivision (d)(4) exception
plainly allows resentencing courts to reimpose an original upper term
sentence without a stipulation by defendant or a jury finding of the
underlying facts of the aggravating circumstances. We find Mathis’s analysis
particularly apropos, and rather than reinvent the wheel, quote the case at
length:
“Our Supreme Court recently reviewed the history of the relevant
legislation. (See People v. Lynch (2024) 16 Cal.5th 730 . . . (Lynch).) Until
2007, section 1170, former subdivision (b), provided that, when a penal
statute specifies three possible prison terms, ‘the court shall order imposition
of the middle term, unless there are circumstances in aggravation or
mitigation of the crime.’ (See § 1170, former subd. (b); Stats. 1977, ch. 165,
§ 15, p. 647; Stats. 1998, ch. 926, § 1.5, p. 6206; see also Lynch, at p. 746.)
“In 2007, however, the United States Supreme Court held that
California’s upper term sentencing scheme violated the Sixth Amendment
right to a jury trial because it allowed a defendant’s prison sentence to be
increased beyond the statutory maximum based on facts that had not been
found true beyond a reasonable doubt by a jury or admitted by the defendant.
(See Cunningham v. California (2007) 549 U.S. 270, 274–275 . . .
(Cunningham); see also Lynch, supra, 16 Cal.5th at pp. 746–747.) The
statutory maximum, for Sixth Amendment purposes, is the maximum
sentence the court may impose without finding any additional facts beyond
those necessary to support the verdict. (Lynch, at p. 747.) Cunningham
explained that, except for prior conviction allegations, the Sixth Amendment
requires ‘any fact that exposes a defendant to a greater potential sentence’ to
be found by a jury beyond a reasonable doubt. (Cunningham, at p. 281.)
Cunningham noted that California could comply with the Sixth Amendment

20
either by requiring jury findings for any facts necessary to impose an
aggravated sentence, or by authorizing sentencing courts ‘ “to exercise broad
discretion . . . within a statutory range.” ’ (Cunningham, at p. 294; see Lynch,
at p. 747.)
“That same year, our Legislature chose Cunningham’s second option.
(Lynch, supra, 16 Cal.5th at p. 748.) The Legislature amended section 1170,
subdivision (b), to grant trial courts ‘broad discretion’ to choose between the
lower, middle, and upper terms. (See § 1170, former subd. (b), enacted by
Sen. Bill No. 40 (2007–2008 Reg. Sess.); Stats. 2007, ch. 3, § 2, p. 5, eff.
Mar. 30, 2007; Lynch, at pp. 747–748.) That sentencing scheme, in effect
when Mathis was originally sentenced, was one that ‘ “everyone agrees” ’
raised no Sixth Amendment concerns. (Lynch, at p. 747.)
“Subsequently, our Legislature revisited the question and amended
section 1170, subdivision (b), to adopt the first option Cunningham outlined.
(Lynch, supra, 16 Cal.5th at p. 748.) Effective January 1, 2022, section 1170,
subdivision (b), now states that, when a ‘statute specifies three possible
terms, the court shall, in its sound discretion, order imposition of a sentence
not to exceed the middle term’ unless ‘there are circumstances in aggravation
of the crime that justify the imposition of a term of imprisonment exceeding
the middle term and the facts underlying those circumstances have been
stipulated to by the defendant or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial.’ (§ 1170,
subd. (b)(1)–(2); see Sen. Bill No. 567 (2021–2022 Reg. Sess.); Stats. 2021,
ch. 731, § 1.3, eff. Jan. 1, 2022.)
“In the same session, our Legislature also established the resentencing
procedures for defendants like Mathis who were serving terms that included
a prior prison term enhancement. (See § 1172.75, subd. (a), as enacted by

21
Sen. Bill No. 483 (2021–2022 Reg. Sess.); Stats. 2021, ch. 728, §§ 1, 3, eff.
Jan. 1, 2022; renumbered from § 1171.1 by Assem. Bill No. 200 (2021–2022
Reg. Sess.); Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)
“[¶] . . . [¶] Section 1172.75, subdivision (d)(4), provides that, before any
aggravating facts may be used to justify the imposition of an upper term
sentence, the defendant must have admitted them or they must have been
found true beyond a reasonable doubt by a judge or jury, ‘[u]nless the court
originally imposed the upper term.’ (Italics added.) Based on this
‘unambiguous’ language, People v. Brannon-Thompson[, supra,]
104 Cal.App.5th 455, 466–467 . . . held that the heightened factfinding
requirement does not apply where the defendant originally received an upper
term sentence.
“But Mathis argues that the italicized language above creates an
ambiguity in the statutory scheme, rather than an exception to the
factfinding requirement. Specifically, section 1172.75, subdivision (d)(2),
mandates that, during the resentencing proceeding, ‘[t]he court shall apply
the sentencing rules of the Judicial Council and apply any other changes in
law that reduce sentences or provide for judicial discretion.’ And the
heightened factfinding requirement of section 1170, subdivision (b)(2), Mathis
says, is one of the ‘changes in law’ that must be applied. According to Mathis,
Brannon-Thompson’s construction of section 1172.75, subdivision (d)(4),
conflicts with the duty to apply changes in law in subdivision (d)(2) of the
same statute, making the statute ambiguous.
“Further, citing Lynch, Mathis contends that section 1172.75,
subdivision (d)(4), would violate the Sixth Amendment unless it were
interpreted to make the heightened factfinding requirement applicable to
cases in which the defendant was originally sentenced to the upper term.

22
Mathis draws support from People v. Gonzalez[, supra,] 107 Cal.App.5th 312,
327–330 . . . , which rejected Brannon-Thompson’s construction of
section 1172.75, subdivision (d)(4). (See Gonzalez, at p. 330.)
“Gonzalez held that interpreting section 1172.75, subdivision (d)(4), to
except defendants originally sentenced to upper terms from the heightened
factfinding requirement would potentially violate the Sixth Amendment by
allowing for the imposition of a sentence based on facts not found by a jury.
(Gonzalez, supra, 107 Cal.App.5th at pp. 329–330.) In so holding, the court
relied in part on Lynch’s point that, ‘[u]nder the current statute
[section 1170, subdivision (b),] the middle term is the maximum term that
can be imposed unless additional factual determinations are made. It is the
requirement of additional factfinding that brings the Sixth Amendment into
play.’ (Lynch, supra, 16 Cal.5th at p. 759; see Gonzalez, at p. 330.) In light of
these constitutional concerns, Gonzalez construed section 1172.75,
subdivision (d)(4), to ‘restrict the scope of defendants eligible to receive the
upper term at resentencing to those who previously received the upper term,
instead of creating a condition or exception independently justifying the
imposition of the upper term.’ (Gonzalez, at p. 329.) According to Gonzalez,
‘a defendant would be eligible for the upper term but could not receive it’
unless the heightened factfinding requirement is met. (Ibid.) Gonzalez
distinguished Brannon-Thompson because it did not grapple with Sixth
Amendment concerns. (See Gonzalez, at p. 330; Brannon-Thompson, supra,
104 Cal.App.5th at p. 467 [declining to address the defendant’s constitutional
argument due to forfeiture].)
“We disagree that the Sixth Amendment is implicated here. When
Mathis was sentenced, in 2017, his sentence was imposed pursuant to the
version of section 1170, subdivision (b), that granted the trial court broad

23
discretion to select any of the three applicable prison terms. As Lynch
explained, under that sentencing scheme, there was no requirement for the
judge to find a particular fact to justify imposition of the upper term. (See
Lynch, supra, 16 Cal.5th at p. 747.) As a result, the court’s selection of an
upper term at Mathis’s 2017 sentencing did not run afoul of the Sixth
Amendment. (See Lynch, at pp. 747–748; Cunningham, supra, 549 U.S. at
p. 294.)
“The same statutory scheme under which Mathis was sentenced had
long been in effect at the time that the Legislature established the
resentencing procedures applicable here. As a result, it was not necessary for
the Legislature to impose the heightened factfinding requirements for
defendants like Mathis who originally received upper term sentences under
the prior version of section 1170, subdivision (b). That sentencing scheme
fully complied with the Sixth Amendment. As discussed, the prior scheme
authorized the imposition of upper term sentences without any additional
fact-finding. But for defendants who did not receive an upper term in their
original sentencing, to ensure that any newly imposed upper term sentence is
consistent with the Sixth Amendment, the Legislature mandated that any
such aggravating fact be found pursuant to the heightened factfinding
requirements specified in Cunningham. (See § 1172.75, subd. (d)(4).)
“We therefore reject Mathis’s contention that the exception in
section 1172.75, subdivision (d)(4), for cases in which the trial ‘court
originally imposed the upper term’ must be construed, as a matter of
constitutional avoidance, to nonetheless require aggravating factors to be
found by the factfinder or admitted by the defendant. Where, as here, the
trial court elects to retain an upper term sentence that complied with the
Sixth Amendment when originally imposed, the court need not engage in any

24
additional factfinding under section 1172.75, subdivision (d)(4). (See
Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
“Further, contrary to Mathis’s argument, section 1172.75 is not
ambiguous because more specific legislative enactments control over general
ones. (See City of Los Angeles v. PricewaterhouseCoopers, LLP (2024)
17 Cal.5th 46, 68–69. . . .) And here, section 1172.75, subdivision (d)(2),
addresses the general topic of changes in law, whereas subdivision (d)(4) of
that statute more specifically deals with the new factfinding requirement,
making clear that it does not apply where ‘the court originally imposed the
upper term.’ (See Brannon-Thompson, supra, 104 Cal.App.5th at p. 467
[‘Section 1172.75, subdivision (d)(4) is . . . an exception to the general rule
that the trial court must apply ameliorative changes in the law at a
section 1172.75 resentencing.’].)
“To be sure, absent language to the contrary in section 1172.75,
section 1170, subdivision (b)’s amended sentencing scheme would apply to
Mathis’s resentencing because we presume that the Legislature intends
ameliorative changes in sentencing law to apply in all cases that are nonfinal,
including cases which became nonfinal due to resentencing. (See People v.
Padilla (2022) 13 Cal.5th 152, 162–163. . . .) But the Legislature is also free
to ‘write statutes that provide for a different or more limited form of
retroactivity, or for no retroactivity at all,’ and it may ‘disclaim the
application of a new ameliorative law to proceedings that occur after a
defendant’s conviction or sentence has been vacated.’ (Id., at p. 162; see also
[People v.] Terwilligar [(2025)] 109 Cal.App.5th [585,] 602.) Section 1172.75,
subdivision (d)(4), does exactly that. It expresses the Legislature’s intent
that the new, heightened factfinding requirements for aggravating factors do
not apply where the defendant was originally, lawfully sentenced to an upper

25
term. (See Brannon-Thompson, supra, 104 Cal.App.5th at pp. 466–467.)
During Mathis’s resentencing proceeding, the trial court permissibly elected
to retain the upper term sentence previously imposed under a sentencing
scheme that was fully consistent with his Sixth Amendment right to a jury
trial. (Cf. Terwilligar, at p. 602 [explaining that ‘section 1172.75 allows for
the possibility that a sentence of the original length will be reimposed’].)”
(Mathis, supra, 111 Cal.App.5th at pp. 370–374, italics & fns. omitted.)
Like the defendant in Mathis, defendant here was originally sentenced
in 2014 under the determinate sentencing law, which was in effect between
2007 and 2021. (See generally Lynch, supra, 16 Cal.5th at pp. 746–748
[overview of the history of the state’s determinate sentencing law].) Thus, as
the Court of Appeal held in Mathis, the trial court here could permissibly
reimpose the upper term sentence that had been previously imposed under a
sentencing scheme that was fully consistent with the Sixth Amendment right
to a jury trial.
Correction of Abstract of Judgment
Lastly, the parties agree, as do we, that the abstract of judgment must
be corrected to conform to the trial court’s oral pronouncement striking the
section 667.5, subdivision (b) prior, rather than stating, as it currently does,
that the enhancement was stayed. (See People v. Leon (2020) 8 Cal.5th 831,
855 [“Any discrepancy between the judgment as orally pronounced and as
recorded in the clerk’s minutes or abstract of judgment is presumed to be the
result of clerical error.”]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [an
appellate court may order “correction of abstracts of judgment that [do] not
accurately reflect the oral judgments of sentencing courts”].)

26
 DISPOSITION
The judgment is affirmed. The superior court is directed to prepare an
amended abstract of judgment consistent with the court’s oral
pronouncement. The clerk of the superior court is ordered to forward a copy
of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.

27
 _________________________
Banke, J.

We concur:

_________________________
Humes, P. J.

_________________________
Langhorne Wilson, J.

A172793, People v. Gutierrez

28