JUDGE MICHAEL JOHNSON

DEPARTMENT 56

Hearing Date: March 18, 2014

Case Name: Diego, et. al. v. City of Whittier, et al.
Case No.: BC517363
Motions: (1) Preliminary Injunction; (2) Waive Undertaking

Ruling: Preliminary injunction is denied; Undertaking is moot.

Plaintiffs Jafet Diego, Miguel Garcia, and Lisa Lopez filed this action against Defendants
City of Whittier, Whittier City Council, Whittier City Clerk, and individual Whittier City
Council members. Plaintiffs allege that the “at-large” voting process for the Whittier City
Council discriminates against the City’s Latino population in violation of the California
Voting Rights Act, Elec. Code §§ 14025 et seq. Plaintiffs now move for a preliminary
injunction which would enjoin Defendants from preparing for, conducting, counting
votes for, and certifying the results for any future City Council election, including the
upcoming April 8, 2014 election.

Evidence –

Plaintiffs have made two sets of Requests for Judicial Notice (filed 12/5/13 and 3/11/14),
and Defendants have made one (filed 3/5/14). All RJNs are granted; the Court has
considered all matters presented by the parties.

Defendants have objected to the declarations of Matthew Barreto, Elizabeth Cobarrubias,

Jafet Diego, Martha Escutia, Christine Frausto, Miguel Garcia, Lisa Lopez, Angelita
Medina, Paul Mitchell, Alex Moisa, Alex Morales, and Rod Pacheco. All objections are
overruled; the Court has considered all evidence presented by Plaintiffs.

Plaintiffs have objected to the declarations of Donald Alvarado, Charles Claver, Jeffrey
Collier, Sylvia Granados-Southerland, Douglas Johnson, Jonathan Katz, Douglas Lopez,
Kathryn Marshall, and Owen Newcomer. All objections are overruled; the Court has
considered all evidence presented by Defendants.

Standard for a Preliminary Injunction –

As the Supreme Court held in Butt v. State of California (1992) 4 Cal.4th 668, 677-78:
“In deciding whether to issue a preliminary injunction, a court must weigh two
‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on
the merits and (2) the relative interim harm to the parties from issuance or nonissuance of
the injunction … . The trial court's determination must be guided by a ‘mix’ of the
potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the
less must be shown on the other to support an injunction.”

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Likelihood of Prevailing on the Merits –

For the first factor, courts ordinarily require the plaintiff to demonstrate a “reasonable
probability” of success on the merits. E.g. SF Newspaper Printing Co. v. Superior Ct.
(1985) 170 Cal.App.3d 438, 442; Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368,
1372. Although this standard may be diminished upon a strong showing of irreparable
harm, a trial court “may not grant a preliminary injunction, regardless of the balance of
interim harm, unless there is some possibility that the plaintiff would ultimately prevail
on the merits of the claim.” Butt, supra 4 Cal.4th at 678.

Plaintiffs’ claims against the Whittier at-large voting system are based upon the CVRA.
“The CVRA provides a private right of action to members of a protected class where,
because of ‘dilution or the abridgement of the rights of voters,’ an at-large election
system ‘impairs the ability of a protected class to elect candidates of its choice or its
ability to influence the outcome of an election … .’ (§ 14027; see § 14032.) To prove a
violation, plaintiffs must show racially polarized voting. They do not need to show that
members of a protected class live in a geographically compact area or demonstrate an
intent to discriminate on the part of voters or officials. (§ 14028.)” Sanchez v. City of
Modesto (2006) 145 Cal.App.4th 660, 667.

To meet this substantive burden, Plaintiffs have presented evidence of racially polarized
voting within Whittier city elections. Their evidence consists of both percipient and
expert testimony. Plaintiffs have presented a voting analysis by Dr. Matthew Barreto, a
qualified expert witness, who has stated his opinion that racially polarized voting has
occurred in nearly every Whittier municipal election that he reviewed. Defendants have
directly disputed Plaintiffs’ showing. They too have presented both percipient and expert
testimony. Defendants’ analysis is by Dr. Jonathan Katz, also a qualified expert, who
believes that Whittier does not have a history of racially polarized voting.

The parties’ evidence presents a clear and sharp dispute. Viewing the evidence as a
whole, Plaintiffs have demonstrated a “reasonable probability” – and at the very least
“some possibility” – that they will ultimately prevail on their CVRA challenge to the
existing at-large electoral process for the Whittier City Council. See Butt, supra 4 Cal.4th
at 678; SF Newspaper Printing, supra 170 Cal.App.3d at 442. Plaintiffs have therefore
met the first element of their burden for issuing a preliminary injunction.

Relative Harm –

For the second factor, Plaintiffs must demonstrate a likelihood of an imminent irreparable
injury that outweighs the hardships to Defendants if the injunction is granted. See Ralphs
Grocery v. United Food & Comm. Workers (2010) 186 Cal.App.4th 1078, 1099;
Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal.App.3d 405, 410. A
significant showing of irreparable harm is required for an injunction against a public
officer or agency. Tahoe Keys Assn. v. State Water Resources Control Bd. (1994) 23
Cal.App.4th 1459, 1471.

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In balancing hardships, California state courts have consistently demonstrated their
reluctance to interfere with an election by issuing a preliminary injunction or other pre-
trial relief. As the Supreme Court held in Legislature v. Deukmejian (1983) 34 Cal.3d
658, 665, "it is usually more appropriate to review constitutional and other challenges to
ballot propositions or initiative measures after an election rather than to disrupt the
electoral process by preventing the exercise of the people's franchise, in the absence of
some clear showing of invalidity.” Accord AFL v. Eu (1984) 36 Cal.3d 687, 695;
Canyons Neigh. Assn v. Monterey Peninsula Regional Park Dist. (1990) 221 Cal.App.3d
1033, 1042 (“absent clear invalidity, it is more appropriate to review a challenge to an
initiative's substance as unconstitutional after an election than before”).

Federal courts have demonstrated the same reluctance in voting rights cases. E.g.
Reynolds v. Sims (1964) 377 US 533, 585 (“[U]nder certain circumstances, such as
where an impending election is imminent and a State's election machinery is already in
progress, equitable considerations might justify a court in withholding the granting of
immediately effective relief in a legislative apportionment case, even though the existing
apportionment scheme was found invalid.”); Southwest Voter Registration v. Shelley (9th
Cir. 2003) 344 F.3d 914, 918 (“There is no doubt that the right to vote is fundamental,
but a federal court cannot lightly interfere with or enjoin a state election. … The decision
to enjoin an impending election is so serious that the Supreme Court has allowed
elections to go forward even in the face of an undisputed constitutional violation.”);
Lopez v. Merced County (ED Cal. 2007) 473 F.Supp.2d 1072, 1081-1082 (“We, like
other courts faced with similar situations, are reluctant to set aside the results or prevent
certification of an election.”); Cano v. Davis (CD Cal 2001) 191 F.Supp.2d 1135, 1137
(“enjoining an election is an ‘extraordinary remedy’ involving a far-reaching power”);
Cardona v. Oakland USD (ND Cal. 1992) 785 F. Supp. 837, 843 (“This Court should not
impose the significant costs of delaying an election … .”).

These state and federal court decisions show very clearly that election cases are different
from other circumstances in which a preliminary injunction is sought. Voting is a
fundamental part of our governmental process, and interfering with an impending
election requires an extraordinary demonstration by the plaintiff. Plaintiffs have not met
that standard in our case. While Plaintiffs have presented evidence which supports a
reasonable likelihood of proving a CVRA violation for the current at-large electoral
process within the City of Whittier, they certainly have not made a “clear showing of
invalidity” that would justify interference with the rapidly-approaching April 2014
election or with all subsequent City Council elections. Deukmejian, supra 34 Cal.3d at
665. Indeed, at the June 2014 election Whittier voters will consider a charter amendment
that could replace the current at-large districts with an entirely new City Council electoral
process. Under these circumstances, a preliminary injunction is not warranted.

Ruling –

Plaintiffs’ motion for preliminary injunction is denied. Their accompanying motion to

waive an undertaking is moot.