Rab v. Weber ( 2023 )

Filed 5/26/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
RAJI RAB, C093916
Plaintiff and Appellant, (Super. Ct. No. 34-2020-
80003363-CU-WM-GDS)
v.
SHIRLEY N. WEBER, as Secretary of State, etc., et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Affirmed.
Raji Rab, in pro. per., for Plaintiff and Appellant.
Collins + Collins, Brian K. Stewart and Taylor J. Pohle for Defendants and
Respondents County of Los Angeles, Los Angeles County Board of Supervisors and
Dean C. Logan.
Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney General,
Paul Stein and S. Clinton Woods, Deputy Attorneys General, for Defendant and
Respondent California Secretary of State.
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SUMMARY OF THE APPEAL
At the time of the March 2020 primary election, Elections Code section 15101,
subdivision (b), stated, “[a]ny jurisdiction having the necessary computer capability may
start to process vote by mail ballots on the 10th business day before the election.
Processing vote by mail ballots includes . . . machine reading them, . . . but under no
circumstances may a vote count be accessed or released until 8 p.m. on the day of the
election.” (Elec. Code, § 15101, subd. (b) (Mar. 3, 2020; see also Stats. 2018, ch. 282,
§ 1.)
Elections Code section 15101 has been amended three times since the March 2020
primary election. (See Stats. 2020, ch. 4, § 6; Stats. 2020, ch. 106, § 4; Stats 2021, ch.
312, § 7.) As of November 1, 2022, subdivision (b) says, “(b) Any jurisdiction having
the necessary computer capability may start to process vote by mail ballots on the 29th
day before the election. Processing vote by mail ballots includes opening vote by mail
ballot return envelopes, removing ballots, duplicating any damaged ballots, and preparing
the ballots to be machine read, or machine reading them, including processing write-in
votes so that they can be tallied by the machine, but under no circumstances may a vote
count be accessed or released until 8 p.m. on the day of the election. All other
jurisdictions shall start to process vote by mail ballots at 5 p.m. on the day before the
election.” (Elec. Code, § 15101, subd. (b) (2022).) Our holding that “machine reading”
includes “scanning” applies with equal force to the version of the law in effect as of
November 1, 2022.
All further citations to Elections Code section 15101 in this decision are referring
to the version that existed on March 3, 2020.
Petitioner Raji Rab contends that by allowing Los Angeles County workers to scan
vote by mail ballots into the Voting Solutions for All People (VSAP) system—the
computer hardware and software system used to capture and count votes in Los Angeles
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County—beginning 10 days before the March 2020 primary election, Dean Logan, the
Los Angeles County Registrar-Recorder/County Clerk violated Elections Code section
15101, subdivision (b)’s, prohibition on accessing and releasing a vote count prior to
8 p.m. on the day of an election. Rab alleges respondents the Los Angeles Board of
Supervisors and its members (with Logan, the County) and the California Secretary of
State, failed in their oversight of Logan, and, therefore, failed to protect the election
process and aided and abetted in Logan’s alleged misconduct.
Rab brought a petition for writ of mandate, seeking a manual recount of ballots
from the March 2020 primary election, and claiming this matter was one “of [the]
greatest public interest.” The trial court denied his petition. Specifically, in denying the
petition, the trial court wrote, “[t]he Court interprets ‘machine reading’ to include, and
thus to permit, scanning ballots. To leave no room for confusion in the future, the Court
reiterates: Elections Code section 15101(b) allows the County to start scanning ballots
on the 10th business day before the election.”
Rab now appeals, arguing the trial court misinterpreted Elections Code section
15101, subdivision (b); that the trial court erred in finding there was no evidence to
support his claims; and that the trial court’s rulings regarding discovery motions related
to his demands to inspect the Downey Tally Operation Center (Tally Center) demonstrate
the trial court was biased and prejudiced and discriminated against him. We hold the trial
court interpreted Elections Code section 15101, subdivision (b), correctly: machine
reading includes scanning. We also find that evidence does not support Rab’s position;
and that the trial court exhibited no bias and prejudice against Rab. Accordingly, we
affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
Rab was a candidate for the U.S. House of Representatives, 30th Congressional
District, in California’s primary election held on March 3, 2020. Including Rab, there
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were five candidates listed on the ballot. Under article II, section 5, subdivision (a), of
the California Constitution, in primary elections for congressional offices, all voters may
vote for any candidate, without regard to the political party preference of either the
candidates or the voter. The candidates who receive the two highest numbers of votes
will then compete in the general election, regardless of party preference. (Cal. Const.,
art. II, § 5, subd. (a).) Rab, having received 7,961 votes, which was 4.7 percent of the
vote for the district, finished fourth in the primary. The candidates who placed first,
second, and third received 99,282 votes representing 58.1 percent of the vote, 38,778
votes representing 22.7 percent of the vote, and 18,937 votes representing 11.1 percent of
the vote, respectively.
Rab filed a petition for writ of mandate on April 8, 2020. The operative pleading
in this action is the Verified Second Amended Petition for Writ of Mandate or Other
Extraordinary Relief (petition) that Rab filed on September 23, 2020.
In the petition, Rab alleges that respondents violated Elections Code section
15101, subdivision (b), when Logan caused to be “scanned and accessed Vote-By-Mail”
ballots “10 days before 8 pm election day. Once the ballot count became accessible, it
was easily accessed with a password; and Petitioner’s votes given to his opponent,
robbing Petitioner of his victory.” He also alleged the election results were the result of
“malconduct” under Elections Code, section 16100, subdivisions (a) and (g).
According to the petition, on the day of the primary election, Rab was on his way
to go observe vote tallying, when he heard a news report that the New York Times had
already called the election in favor of one of his opponents. Rab believed this report was
evidence that election misconduct was afoot. Rab said that once he arrived at the Tally
Center the division manager informed him that the office had begun scanning vote by
mail ballots into VSAP 10 days before the election. According to Rab, the division
manager informed Rab that he did not have the password to look at the vote count, which
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Rab took as “a clear admission of vote count done 10 days before 8 pm election day . . .
.”
Relying on a diagram he obtained during discovery prior to filing the second
amended petition, Rab alleged that under the VSAP Tally System (Tally System) used by
the County, “[b]allot images were scanned, voter intent was decoded, voter intent was
recognized and transformed into cast vote record instantly by the Tally [S]ystem, making
vote count accessible. Respondent Logan thereby accessed the ballot count, tampered
with the results and summation of the ballot count, took a majority of Petitioner’s votes,
and allocated them to Petitioner’s opponents, thus robbing Petitioner of his rightful
victory.”
According to the petition, Logan certified the results of the election on March 27,
2020, and the Secretary certified the count on May 1, 2020.
Rab attached 26 exhibits to his verified petition. He also submitted a declaration
in support of the petition. In supporting his arguments on appeal, Rab focuses on
declarations made by his purported experts and diagrams regarding how VSAP works.
As such, we will focus on evidence regarding the workings of the VSAP system in this
decision.
Furthermore, as the trial court correctly concluded, most of the exhibits attached to
the petition are not relevant to the issues raised in the petition, because “they do not
‘hav[e] any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.’ (Evid. Code[,] § 210.)” In a footnote to
its decision, the trial court identified 10 examples—i.e., not an exhaustive list—of
exhibits submitted with the petition that it deemed not relevant. Rab does not make an
argument that the trial court’s determination as to the relevance of these exhibits was
incorrect in either his statement of issues, or under a separate argument heading. Nor
does his brief contain any analysis of Evidence Code provisions defining relevant
evidence. Thus, we assume he does not take issue with the trial court’s determination as
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to the items of evidence it explicitly found not relevant. (See Cal. Rules of Court, rule
8.204(a)(1)(B) [a brief must “[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument and, if possible, by citation
of authority”].)
Because the County’s evidence provides the most complete explanation of how
VSAP works, we begin our description of the evidence submitted below by describing
the County’s evidence.
With their opposition to the petition, the County respondents submitted the
Declaration of Aman Bhullar, assistant Registrar-Recorder/County Clerk of the
Information Technology Bureau of the County of Los Angeles. He is responsible for the
configuration of election management and tally systems in Los Angeles County. He
described VSAP. VSAP consists of both software and hardware components that enable
voters to cast their votes by mail or in person. One component of VSAP is VSAP Tally
Version 2.0, the Tally System, a hardware and software component that processes and
tallies votes.
The Tally System uses industry grade scanners to scan vote by mail and other
paper ballots. When a ballot is scanned, a digital .jpeg image is created. Tally then
processes the digital image to create a cast vote record (CVR). CVRs reflect the
selections a voter made on the scanned ballot. CVRs can then be put into a format that
enables the Tally System to access the selections made by voters to generate a vote count.
Scanning and tabulation do not occur simultaneously. While the County might scan and
upload .jpeg images into the Tally System before election day, tabulation of votes does
not occur until after 8 p.m. on the day of an election, when personnel execute a command
in the Tally system software that resides on equipment other than the scanners. Bhullar
expressly stated, “[n]o tabulation begins before 8 p.m. on the evening of any election
night.”
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Logan submitted a declaration that also described the workings of VSAP and the
Tally System. He added that during the March 2020 primary election, authorized
Registrar-Recorder/County Clerk personnel would process vote by mail ballots by
opening their return envelopes, removing the ballots from the envelopes, duplicating
damages ballots, preparing ballots to be read by scanners, then inserting the ballots into
the scanners to be machine read. He stated staff began scanning ballots for the March 3,
2020, election on February 25, 2020, and he attached logs reflecting the same to his
declaration. He too stated that ballots are not counted until after 8 p.m. on the night of an
election. He further stated that no one with the Registrar-Recorder/County Clerk’s office
executed a command in the Tally System software to count the ballots until after 8 p.m.
on election night during the March 2020 primary election.
Rab submitted a declaration of Andy Rodriguez in support of the petition.
According to Rodriguez, he was with Rab at the Downey Center on election day, and he
heard the division manager tell Rab that the center began scanning vote by mail ballots
10 days in advance of election day. He believed this violated Elections Code section
15101, since “the scanner and tabulation machines” used by the County “are two in one.”
He claims another employee confirmed the machines are “two in one scanner and
tabulation machines.”
Rab included a page of the operations manual for VSAP that describes the Tally
System. According to the description, Tally is a “central tabulator” used for “ballot
processing, vote tabulation, and reporting.”
Rab submitted a declaration of Todd Matthew Woods in support of the petition.
Woods claims to be an experienced poll watcher. He expressed great concern upon
learning that Los Angeles County pre-scanned “all of their ballots” before the march
2020 primary election using the “same machine” (all caps removed) that tabulates the
votes.
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Rab submitted declarations of Ali Razeghi and Syed Y. Raza, computer scientists
who purported to have expert knowledge in the field of database systems. Razeghi and
Raza reviewed various documents produced in discovery related to the operations of
VSAP. Relying on a diagram of how data is entered into and flows through the Tally
System, they both noted, consistent with Bhullar’s declaration for the County, that the
Tally System “scans and creates images of ballots, converts the images into Cast Vote
Records (CVRs), tabulates them, and allows elections results to be exported.” They
identified the Tally System as having “four main . . . processes: (1) Ballots are scanned
and images captured; (2) ballot images are converted into Cast Vote Records (CVRs); (3)
CVRs are tabulated; and (4) Tabulated results are exported for reporting and auditing.”
According to Razeghi and Raza, based on their review, “it is clear that Cast Vote Records
were easily accessible, and the database was accessible” once ballots were scanned.
They said they found areas in which a privileged user—someone with a password—
might be able to access the system and change results. Razeghi stated that there were
“several areas in the Tally environment [that are] accessible to a privilege[d] user and the
vote count became accessible when the scanning and tally process was started 10 days
before the March 3, 2020 primary election . . . .” Raza similarly found that CVRs were
accessible 10 days before the March 3, 2020, election.
On July 7, 2020, Rab served the County with a demand for inspection of premises
and things, which included a demand to inspect the County Registrar/County Clerk’s
facilities, and 28 separate requests for categories of documents and things. Specifically,
the demand sought entry to the Tally Center on August 13, 2020. Counsel for the County
served Rab with objections to the demands on August 11, 2020. According to the
County’s counsel, Rab abandoned his request for inspection without seeking further court
intervention following August 11, 2020. Based on copies of correspondence between
Rab and counsel for the County that Rab attached to a declaration he filed in opposition
to the County’s motion for a protective order, it appears that between August 11, 2020,
8
and August 26, 2020, Rab and the County disagreed about the protocol and scope of a
potential inspection of the Tally Center, and communications regarding the possible
inspection ended on August 26, 2020. In the written communications provided, the only
“extension” discussed was Rab purportedly extending the deadline upon which an
inspection could occur to August 26, 2020. Notably, as the trial court observed there was
“no agreement to extend the time for a motion to compel in the parties’ voluminous email
exchange.”
Based on the record, Rab appears to have remained silent regarding an inspection
of the Tally Center between August 26, 2020, and November 20, 2020, when he sent
counsel for the County a letter via email labeled “Meet and Confer.” In the letter,
“Pursuant to California Code of Civil Procedure section 2031.010 (d),” Rab requested
that the County allow him to enter the Tally Center and that it produce documents and
things for inspection. The letter stated inspection of the premises and production would
be at 9:00 a.m. on November 27, 2020, and requested that the County select an alternate
date for inspection during the week of November 30, 2020, if unable to confirm the
November 27, 2020, inspection date and time.
On November 25, 2020, Counsel for the County responded the Tally Center would
not be available for an inspection on November 27, 2020, but that the County would be
willing to work with Rab to arrange an inspection, provided he agreed to an inspection
protocol as outlined in the response letter. In the November 25, 2020, letter, counsel for
the County advised Rab that under Code of Civil Procedure section 2031.030,
subdivision (c), Rab’s time in which to bring a motion to compel on the July 7, 2020,
demand had long-since expired and, as such, the County considered the letter a new
demand for inspection under Code of Civil Procedure, section 2031.010, et seq. Rab and
the County then engaged in back-and-forth letters and emails regarding when and under
which terms an inspection might occur, and they never came to an agreement.
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On December 11, 2020, the County filed a motion for protective order, seeking an
order from the trial court that it need not make the Tally Center available to Rab for an
inspection. A declaration by counsel for the County accompanied the motion for a
protective order, attached to which were copies of counsel’s correspondence with Rab
regarding a possible inspection, beginning with Rab’s November 20, 2020, letter asking
for an inspection, including counsel’s response that it was treating the November 20,
2020, letter like a new inspection demand, and ending with counsel’s December 7, 2020,
letter to Rab stating the County would allow inspection of the Tally Center of
December 9, 2020, if Rab would sign an agreement to abide by specified inspection
protocols. On December 14, 2020, Rab submitted a request for an order shortening time
in which to bring a motion to compel compliance with his inspection demand. The trial
court issued an order agreeing to hear the motion to compel on shortened time, and
scheduled the hearing for the same day it was scheduled to hear the motion on the
protective order.
In the tentative ruling issued before the hearing on the motions, the trial court
correctly stated that it was unclear based on his moving papers whether Rab was seeking
to compel further responses to his July 7, 2020, demand, as opposed to his November 20,
2020, letter and/or related communications.
At the hearing regarding the motions, Rab took the position that the letters from
November and December 2020 did not contain new inspection demands, and that the
emails were simply meet and confer emails that served as a “follow-up” to the parties’
communications in August 2020. He argued that motions for protective orders need to be
made promptly and to be accompanied by meet and confer declarations under Code of
Civil Procedure, section 2016.040, and that the County did not meet and confer regarding
a protective order. He argued the motion for protective order was not prompt, assuming
the underlying demand at issue was the July 7, 2020, demand.
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Additionally, when the court asked Rab to clarify if the request at issue was a new
request, or if the issues raised by the motions were tied to the earlier request, he
responded the issues were tied to the earlier request, and he argued there was no demand
in November. In contrast, the County stated it was treating the November 20, 2020, letter
as a new inspection demand.
Following the hearing, the trial court issued a careful and detailed order granting
the protective order and denying the motion to compel. In so doing, the trial court
correctly observed that Code of Civil Procedure section 2031.310, subdivision (c),
requires a party to bring a motion to compel compliance with an inspection demand
within “45 days of the service of the verified response, or any supplemental verified
response, or on or before any specified later date to which the demanding party and the
responding party have agreed in writing,” and if the demanding party fails to satisfy this
requirement, it “waives any right to compel a further response to the demand.” Even
adding five days to serve a motion to account for service of the County’s objections by
mail, and taking into account that the parties never agreed in writing to extend the
deadline, Rab only had until the end of September 2020 to file a motion to compel on the
July 7, 2020, request, which he did not do.
With respect to Rab’s motion to compel, the trial court noted that at the hearing
Rab had clarified the only inspection demand he believed to be at issue was the July 7,
2020, demand. Then, the trial court denied the motion to compel, finding that because he
did not file the motion within 45 days of the County’s response to his July 7, 2020,
demand for inspection, he had waived any right to compel a further response pursuant to
Code of Civil Procedure, section 2031.310. In denying the motion to compel, the court
observed it found nothing in the parties’ communications regarding Rab’s demand for an
inspection that demonstrated they had entered into a written agreement that extended the
time for him to bring a motion to compel a response to that demand.
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The court did not rest its analysis regarding the motion to compel on a discussion
of the July 7, 2020, demand. First, it noted sections of the moving papers where the
language suggested that the focus of Rab’s motion may have been letters he sent on
November 30 and December 5, 2020, in which he first presented his own proposed
inspection protocol for the Tally Center to the County, stating, “[g]iven Rab’s moving
papers, it certainly appears that he seeks an order compelling [the County] to comply
with his Inspection Protocol.” To the extent Rab’s motion could have been deemed a
motion to compel compliance with his proposed inspection protocol as presented in the
letters, the trial court denied it because the demand failed to comply with the inspection
demand format requirements contained in Code of Civil Procedure section 2031.030.
With respect to the motion for a protective order, the court began by observing
that the County had not been required to treat the November 20 and November 30, 2020,
letters like new demands, but had done so anyway. The court noted the County then
objected to the demands, but agreed to provide Rab access to the Tally Center if he was
willing to accept the protocol terms it outlined in its responses to his letters.
The court granted the motion for a protective order, on the grounds that the
County was not required to make the Tally Center available because Rab had failed to
serve a demand that complied with the Civil Discovery Act. The court noted Rab had
argued the motion for protective order was not timely, and that it ought to have been filed
closer to the date the July 7, 2020, demand was made. While the court agreed a motion
for a protective order based on the July 7, 2020, demand would not be considered prompt,
as would be required by Code of Civil Procedure section 2031.060, subdivision (a), it
concluded in this circumstance it was reasonable for the County to treat Rab’s November
letters as a new demand and, in that case, a motion for protective order was timely.
The court also addressed Rab’s argument at the hearing that the County’s motion
ought to have been denied because the County had failed to include a meet and confer
declaration with its motion for a protective order. The court was not persuaded by this
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argument, largely because Rab failed to raise it in his opposition papers, but also because
the record reflected the County had made an effort to meet and confer regarding the
scope and appropriateness of an inspection prior to bringing the motion for a protective
order.
DISCUSSION
I
The County Did Not Violate Elections Code Section 15101
Rab argues that the trial court incorrectly interpreted Elections Code section
15101, subdivision (b), to permit County workers to access and scan vote by mail ballots
prior to election night. He suggests that in scanning the ballots into the Tally System
before election day, the County violated the statute’s prohibition on accessing and
releasing a vote count prior to 8 p.m. on the day of an election, contrary to the public
interest. There is no merit to these arguments.
A. “Machine Reading” Incudes “Scanning”
In defining “Processing” to include “machine reading” vote by mail ballots,
Elections Code section 15101, subdivision (b), permitted the County to scan vote by mail
ballots into the Tally System as early as “the 10th business day before the election.”
“ ‘ “When we interpret a statute, ‘[o]ur fundamental task … is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning.’ ” ’ ” (Brennon B. v. Superior
Court (2022) 13 Cal.5th 662, 673 (Brennon B.).) “ ‘If there is no ambiguity in the
language, we presume the Legislature meant what it said and the plain meaning of the
statute governs.’ (People v. Snook (1997) 16 Cal.4th 1210, 1215 [].) ‘When statutory
language is clear and unambiguous there is no need for construction, and we will not
indulge in it.’ (Morton Engineering & Construction, Inc. v. Patscheck (2001)
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87 Cal.App.4th 712, 716 []; see La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461,
476 [] [‘ “ ‘ “An intent that finds no expression in the words of the statute cannot be
found to exist” ’ ” ’].)” (California State University, Fresno Assn., Inc. v. County of
Fresno (2017) 9 Cal.App.5th 250, 266.)
“ ‘ “ ‘If the language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd consequences the Legislature did not
intend. . . . .’ [Citation.] ‘Furthermore, we consider portions of a statute in the context
of the entire statute and the statutory scheme of which it is a part, giving significance to
every word, phrase, sentence, and part of an act in pursuance of the legislative
purpose.’ ” ’ (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616–617 [],
quoting Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165–166 [].)” (Brennon B.,
supra, 13 Cal.5th at p. 673.)
Courts of appeal review questions of statutory interpretation de novo. (Lopez v.
Ledesma (2022) 12 Cal.5th 848, 857.)
Rab suggests that by interpreting Elections Code section 15101, subdivision (b), to
allow ballots to be scanned prior to election night, the trial court improperly inserted
qualifying provisions into the statute. We disagree. In interpreting “processing” as
defined to include scanning, the trial court was simply applying a “plain and
commonsense meaning” to the term “machine reading,” particularly as that term is read
“in the context of the entire statute,” which provides authority and instructions for the
processing of ballots by counties that have the “computer capability” to process ballots in
an election. (See Brennon B., supra, 13 Cal.5th at p. 673; Elec. Code, § 15101, subd.
(b).) An argument that Elections Code section 15101, subdivision (b), did not plainly
authorize counties with computer capabilities to scan vote by mail ballots 10 business
days before the election cannot be sustained.
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B. No Evidence Suggests that Scanning the Documents with the Tally System
Violated Elections Code Section 15101, Subdivision (b)’s Prohibitions
No evidence suggests that scanning ballots into the Tally System in the March
2020 primary violated Elections Code section 15101, subdivision (b)’s, prohibition on
accessing and releasing vote counts before 8 p.m. on election night.
The trial court referred to Rab’s purported experts as “self-identified” experts and,
in a footnote, found they failed to qualify as experts. However, the trial court also
considered the purported experts’ description of how the system worked in concluding
that Rab did not produce evidence that the County accessed a vote count before election
night at 8 p.m. In identifying the issues on appeal and making his argument, Rab does
not contest this finding with a supported argument. Instead, he incorrectly states that the
trial court “accepted that declarants are indeed experts.” Here, we treat the declarations
like the trial court treated them: while we do not concede that Rab’s purported experts
are, in fact, experts, we find that even if their descriptions of the VSAP and its Tally
System are correct, Rab’s argument lacks factual support and merit
Rab’s purported experts and the County declarant’s description of VSAP and the
Tally System do not vary in any meaningful detail. Both Rab’s declarants and the
County declarants discuss how the Tally System can both capture individual votes by
converting them into CVRs and, in turn, tabulate total votes. Bhullar, in his declaration
for the County, states that scanning and tabulation do not occur simultaneously. Bhullar
and Logan described how, while scanning may have occurred before election day,
tabulation did not occur until after 8 p.m. on election day, when someone in the
Registrar-Record/County Clerk’s Office executed a command to tally the votes on a
portion of the Tally System hardware other than the scanners. Similarly, Rab’s experts
describe the Tally System as having four processes, of which scanning and capturing the
ballots are two processes and tallying the votes is another process—i.e., his purported
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experts do not describe the process of scanning and tallying as happening in one
simultaneous process.
Rab’s argument appears to rest upon the fact that, as described by his purported
experts, once ballots were scanned and converted into CVRs, votes—and the ability to
tally them—became accessible. He seems to view this accessibility as tantamount to
actually accessing the vote count. For example, in his opening brief, he discusses how
CVRs—the records of individual votes—are “accessed” by the Tally System once
scanned. But the existence of individual vote records on a scanner and the potential to
execute a command on a separate piece of hardware to tally those individual votes into a
vote count is not the same as actually creating and accessing a vote count.
The County declarants represented that the County does not execute a command to
count votes before 8 p.m. on election night in general, and that the County specifically
did not do so during the March 2020 primary, and Rab has offered no evidence to suggest
this is untrue. Creating readable individual voting records that make a vote count
accessible through secured channels is not the same as actually creating and accessing a
vote count before 8 p.m. on election day. Thus, scanning vote by mail documents into
the Tally System, as described by the evidence, before an election does not violate
Elections Code section 15101, subdivision (b)’s prohibition on accessing a vote count
before 8 p.m. on the night of an election.
II
Rab Has Not Demonstrated the Trial Court Was Biased or Prejudiced
Rab argues the trial court was biased and prejudiced against him. He has failed to
prove the trial judge was biased in making the trial court’s rulings.
A trial judge must be disqualified if, for any reason, “[t]he judge believes there is a
substantial doubt as to his or her capacity to be impartial,” or “[a] person aware of the
facts might reasonably entertain a doubt that the judge would be able to be impartial.”
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(Code Civ. Proc., § 170.1, subd. (a)(6).) “At the request of a party . . . an appellate court
shall consider whether in the interests of justice it should direct that further proceedings
be heard before a trial judge other than the judge whose judgment or order was reviewed
by the appellate court.” (Code Civ. Proc., § 170.1, subd. (c).)
“ ‘Where the average person could well entertain doubt whether the trial judge
was impartial, appellate courts are not required to speculate whether the bias was actual
or merely apparent, or whether the result would have been the same if the evidence had
been impartially considered and the matter dispassionately decided [citation], but should
reverse the judgment and remand the matter to a different judge for a new trial on all
issues.’ (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247 [].)” (Haluck v. Ricoh
Electronics, Inc. (2007) 151 Cal.App.4th 994, 1009.)
A party submitting a brief in an appeal must “[s]upport any reference to a matter
in the record by a citation to the volume and page number of the record where the matter
appears.” (Cal Rules of Court, rule 8.204(a)(1)(C).) In light of this requirement, one
would expect that a party alleging the trial court was biased or prejudiced against them
would identify statements or actions made by the trial court reflecting either (a) the court
harbored a particular form of bias against the party specifically; or (b) the trial court
possessed a general bias against a class of persons to which the party belongs. Rab has
not done this. Additionally, our own review of the trial court’s rulings and the reporter’s
transcript in this case does not suggest bias or prejudice on the part of the trial judge
toward Rab himself or towards a particular class of persons in general.
Instead, Rab points to the trial court order in which the trial court granted the
County’s request for a protective order, denied his motion to compel, and awarded
sanctions to the County for the amount it incurred opposing the motion to compel.
Specifically, Rab states that in granting the motion for a protective order, the trial court
treated a letter he wrote regarding an inspection as a new demand, but when it denied his
motion to compel, it treated that same letter as not a new demand. He also argues that the
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trial court ignored legal requirements regarding the proper procedure for filing a motion
for protective order when it granted the motion for a protective order.
Rab’s argument paints a misleading picture regarding the reasoning the trial court
applied when it ruled on the discovery motions. With respect to the motion to compel,
the trial court treated the motion as based on the July 7, 2020, demand after giving Rab
ample opportunity to clarify which document he was treating as the applicable demand,
and he then insisted at the hearing that the only demand at issue was the July 7, 2020,
inspection demand. In contrast, the County informed the court it was seeking protection
from what it saw as a new series of demands that began with the November 20, 2020,
letter. In short, the trial court considered the motion to compel as if it was based on the
July 7, 2020, demand, because that is the demand regarding which Rab sought relief. In
contrast, it considered the motion for protective order as based on the November 20,
2020, letter, because that is the demand regarding from the County sought relief.
Moreover, the court’s analysis makes clear that how it treated the various demands
and communications in considering the motions did not result in any unfairness to Rab.
After rejecting a motion to compel a response to the July 7, 2020, demand as untimely,
the trial court also explained why it would not have issued an order compelling
compliance with the demands Rab made in November and December 2020 even if he had
expressly sought that relief. The court stated to the extent those requests were new
requests, they were not properly formatted. Then, in granting the protective order, it
again noted to the extent the November 20, 2020, letter was a new demand, it had failed
to comply with the formatting requirements for requests under the Civil Discovery Act.
In short, the trial court first explained why Rab was not entitled to the relief he wanted if
based on the earlier request he believed should form the basis for his motion; then, it
explained to him why the ruling would not be different if based upon the later requests
which ultimately served as the basis for its determinations on the County’s motion.
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As to the trial court’s rejection of Rab’s argument, made for the first time at the
hearing, regarding the County’s need to meet and confer, even if we were to disagree
with the ruling—which we do not—even “[e]rroneous rulings against a litigant, even
when numerous and continuous, do not establish a charge of bias and prejudice.
(McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11 [].)” (Dietrich v. Litton
Industries, Inc. (1970) 12 Cal.App.3d 704, 719.) That Rab disagrees with how the court
ruled regarding the County’s compliance with requirements to meet and confer prior to
bringing a motion for protective order is hardly evidence that “the average person could
well entertain doubt whether the trial judge was impartial,” (see Haluck v. Ricoh
Electronics, Inc., supra, 151 Cal.App.4th at p. 1009) particularly in light of the extensive
thought and care that went into the trial judge’s rulings in this matter.
III
Arguments Made in Reply
In his reply brief, Rab argues the respondents failed to accurately address the
issues he raised in his opening brief. We have considered this appeal after identifying the
issues as framed in Rab’s opening brief, both as stated in his statement of issues and as
articulated in his argument, and we find the appeal lacks merit when we consider his
argument on those issues.
Also, in his reply, in an effort to respond to arguments made by the Secretary, Rab
argues his claims against the Secretary have merit because the Secretary failed to exercise
oversight of Logan. As we find Rab has failed to demonstrate that Logan violated any
laws, his claims against the Secretary also lack merit.
Finally, in his reply, Rab argues the alleged misconduct under Elections Code
section 15101, subdivision (b), is also “malconduct” under Elections Code section 16100.
Because the evidence does not show the County violated Elections Code section 15101,
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subdivision (b), we find no violation of Elections Code section 16100 under Rab’s
proffered theory.
DISPOSITION
We affirm the trial court’s judgment. Respondents shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278 (a) (1), (2).)
HULL, J.
We concur:
ROBIE, Acting P. J.
BOULWARE EURIE, J.
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