Molina v. Nguyen CA2/6 ( 2024 )

Filed 9/3/24 Molina v. Nguyen CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PHILLIP MOLINA, as City 2d Civ. No. B327286
Treasurer, etc., (Super. Ct. No. 56-2020-
00541689-CU-PT-VTA)
Plaintiff and Appellant, (Ventura County)
v. ORDER MODIFYING
OPINION AND DENYING
ALEXANDER NGUYEN, as City REHEARING
Manager, etc. et al., [NO CHANGE IN
JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on August 7, 2024, be
modified as follows:
1. On page 2, the last sentence of the first full paragraph, the
word “Counsel” is changed to “Council.”
2. On page 3, the sentence immediately preceding the “FACTS”
section, the word “court’s” is inserted between the words “trial”
and “reasoning” so that the sentence reads:
We offer our analysis of the trial court’s reasoning for possible
review.
3. On page 4, the first sentence under the “II. Background”
section, the word “the” is inserted between the words “under” and
“general” so that the sentence reads:
Cities are classified as “general law cities” – cities organized
under the general law of California – or “charter cities” – cities
organized under a charter.
4. On page 6, the first full paragraph, both references to “section
41007” are changed to “section 41607.”
5. On page 7, the first sentence of the first full paragraph, the
word “it” is changed to “is.”
6. On page 9, the last sentence of the fourth full paragraph, the
word “counsel” is changed to “Council.”
There is no change the judgment.
Respondents’ petition for rehearing is denied.
____________________________________________________________
GILBERT, P. J. YEGAN, J. BALTODANO, J.
2
Filed 8/7/24 Molina v. Nguyen CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PHILLIP MOLINA, as City 2d Civ. No. B327286
Treasurer, etc., (Super. Ct. No. 56-2020-
00541689-CU-PT-VTA)
Plaintiff and Appellant, (Ventura County)
v.
ALEXANDER NGUYEN, as
City Manager, etc. et al.,
Defendants and Respondents.
The City of Oxnard (City) is locked in a dispute with its
elected treasurer, Phillip Molina. The City abolished his
“administrative duties” and took other actions to diminish the
duties of his office and substantially reduce his compensation.
Molina petitioned the trial court for a writ of mandate to void the
City’s actions, alleging the actions violated sections of the
Government Code1 that govern the treasurer’s duties in general
law cities. The court denied the petition. We reverse.
Some History for Context
At one time, Molina was an employee for the City. He
served as the Director of Finance and Administrative Services.
The City fired him. The parties disagreed on the reasons for his
termination. Molina asserts the City fired him for statements he
made that “raised the possibility that members of the Oxnard
City Counsel engineered a ‘sweetheart deal’ with favored
contractors at taxpayers’ expense.” (Molina v. Board of
Administration, etc. (2011) 200 Cal.App.4th 53, 56 & fn. 2.)
Molina sued the City in federal court for wrongful termination in
violation of his constitutional right to freedom of speech. (Id. at
p. 56, fn. 2.) The parties settled the case with the City paying
Molina $875,000 for wrongful termination.
Thereafter, Molina was elected the City’s treasurer. The
City is a general law city. Its elected treasurer is governed by the
Government Code and local ordinances permitted by the
Government Code.
The City then drafted a series of ordinances that drastically
reduced Molina’s duties and compensation. The City argues it
may do so through a labor-intensive analysis of Government Code
sections. The trial court ruled that the City’s motivation for its
actions is strictly a matter of statutory construction. In other
circumstances this could be a reasonable analytic approach.
Here, we disagree with this conclusion. The City’s actions
drastically reduced the duties of the elected treasurer. A city
1 All statutory references are to the Government Code
unless otherwise indicated.
2
treasurer deprived of the office’s duties is tantamount to no
treasurer. The City may not through legerdemain un-elect the
office of city treasurer and defeat the choice of the voters.
We offer our analysis of the trial reasoning for possible
review.
FACTS
The City has an elected treasurer (§ 36502). Molina was
first elected treasurer in 2016 for a four-year term beginning
January 1, 2017. When Molina began his first term, the
treasurer’s office had 19 full-time employees and an annual
budget of approximately $3 million.
In October 2019, the City placed Molina on administrative
leave. The City then passed a series of resolutions or ordinances
to remove administrative duties from the treasurer and place
them elsewhere. Having eliminated the treasurer’s
administrative duties, the City defunded the treasurer’s office,
shifted Molina’s 19-member staff to a newly created department
of billing and licensing and reduced his salary from a range of
$114,656.88 to $157,652.98 to a fixed $20,412.08, the same salary
as City council members receive. In spite of the City’s actions,
Molina was reelected to a four year term as treasurer in 2020.
Procedure
In January 2022, Molina filed a petition for a writ of
mandate challenging the City’s resolutions removing his
administrative duties and reducing his salary. Molina claimed
the resolutions violate statutes governing the duties of the
treasurer. Molina challenges the resolutions removing his
administrative duties. His challenge to the resolution reducing
his salary is as applied. The trial court concluded there is no
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conflict between the resolutions and the governing statutes and
denied Molina’s petition.
DISCUSSION
I. Standard of Review
In traditional mandate (Code Civ. Proc., § 1085), the trial
court determines whether the agency’s decision was arbitrary,
capricious, lacking in evidentiary support, contrary to public
policy, unlawful, or procedurally unfair. (Nowicki v. Contra Costa
County Employees’ Retirement Assn. (2021) 67 Cal.App.5th 736,
746.) Our review applies the same standard as the trial court.
(Ibid.) We independently review legal issues, and to the extent
there are disputed questions of fact, we apply the substantial
evidence standard. (Ibid.)
A facial challenge to a statute or ordinance considers only
the text of the measure itself. (Tobe v. City of Santa Ana (1995) 9
Cal.4th 1069, 1084.) A challenge to a statute or ordinance as
applied is a challenge to the validity of a measure to an
individual or class of individuals. (Ibid.) Thus, because a facial
challenge presents only a question of law, our review is de novo.
To the extent a challenge as applied involves issues of disputed
facts, we apply the substantial evidence standard to the
determination of facts. The party challenging the statute or
ordinance has the burden of proving the measure is invalid.
(Building Industry Assn. of Bay Area v. City of San Ramon (2016)
4 Cal.App.5th 62, 90.)
II. Background
Cities are classified as “general law cities” – cities
organized under general law of California – or “charter cities” –
cities organized under a charter. (City of Orange v. San Diego
County Employees Retirement Assn. (2002) 103 Cal.App.4th 45,
4
52.) The City is a general law city. The powers of a general law
city are only those powers expressly conferred upon it by the
Legislature, and such powers as are necessarily incident to those
expressly granted or essential to the declared object and purposes
of the municipal corporation. (Ibid.) The powers of a city are
strictly construed so that any reasonable doubt concerning the
exercise of a power is resolved against the corporation. (Ibid.) A
local ordinance in conflict with state law is void. (Morehart v.
County of Santa Barbara (1994) 7 Cal.4th 725, 747.)
III. Conflict With State Law
(a)
Molina contends the ordinance transferring the power to
collect license fees to the assistant city treasurer conflicts with
section 41005. Section 41005 provides: “The City treasurer shall
perform duties relative to the collection of city taxes and license
fees as are prescribed by ordinance.”
The City argues section 41005 gives it the power to
prescribe the treasurer’s duties by ordinance. In other words, the
City reads the phrase “as are prescribed by ordinance” to
modifying duties. Molina argues “as are prescribed by ordinance”
modifies “city taxes and license fees,” but not “duties.”
Molina relies on “the last antecedent” rule of construction:
qualifying words or phrases are applied to the words or phrases
immediately preceding, and not to others more remote. (White v.
County of Sacramento (1982) 31 Cal.3d 676, 680.) But as
beneficial as rules of construction can be, they are not rules of
law. They do not dictate a result when another, more reasonable,
interpretation can be made.
The City points out that all city taxes and license fees are
prescribed by ordinance. Molina points to none that are not
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prescribed by ordinance. Thus “as are prescribed by ordinance” is
surplusage if it modifies the City’s taxes and license fees. We
avoid construction that makes some words surplusage. (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1978) 43 Cal.3d
1379, 1387.) But the City’s argument simply substitutes its rule
of construction for Molina’s rule of construction.
The trial court concluded Molina’s interpretation of section
41005, that only the treasurer can collect city taxes and license
fees, conflicts with section 41007. Section 41007 provides: “The
chief of police shall perform any license fee and tax collection
services prescribed by ordinance.”
Molina does not contend that only the treasurer can collect
city taxes and fees. Molina concedes that the chief of police can
also collect taxes and fees. He points out that the assistant city
treasurer, in whom the ordinance places that power, is neither
the treasurer nor the chief of police.
The best guide to the meaning of section 41005 is its words.
It does not say “the city treasurer shall perform duties . . . unless
otherwise prescribed by ordinance.” It simply says, the duties
relative to the collection of taxes and fees prescribed by the
ordinance shall be performed by the treasurer. Nothing in
section 41005 authorizes an ordinance transferring duties
relative to the collection of taxes and fees to the assistant
treasurer. Suffice it to note that the duty to collect taxes may be
transferred by the ordinance to the chief of police does not
authorize these duties to be transferred to the assistant
treasurer.
The City relies on section 34004, but it is of no help to the
City. It provides, in part: “Where any duty is imposed upon a
municipal officer by any law of this State or any rule or
6
regulation adopted under the authority of any such law the
governing body of a city may, by ordinance, impose such duty or a
portion thereof upon such other officer of such city as is charged
under the charter of that city, or by applicable general law with
the performance of duties of the same character in that city.”
Under section 34004, a duty imposed on a municipal officer
may only be transferred to another officer of the city who it
“charged by applicable general law” with “duties of the same
character.” An assistant treasurer is not charged by applicable
general law with any duty of the same character as license fee
and tax collection. If anything, section 34004 supports Molina’s
position that the duties of the treasurer may not be transferred to
the assistant treasurer.
(b)
Moving from license fees to warrants, Molina contends the
City’s ordinance transferring the treasurer’s duty under section
41003 to the assistant treasurer is invalid.
Section 41003 provides: “The city treasurer shall payout
money only on warrants signed by legally designated persons.”
The City transferred that duty of the same character to the
assistant treasurer pursuant to section 34004.
Section 34004 allows a transfer of duties to another officer
of a city “as is charged . . . by applicable general law with the
performance of duties of the same character in that city.” The
assistant treasurer is not charged with any duties of the same
character by the applicable general law. Although it may seem
reasonable to assume otherwise, these are the words of the
statute.
But section 53910 provides, in part: “In addition to any
other provision of law for the issuance and payment of warrants
7
of any county, city and county, city, district, or other political
subdivision of the state, the governing body thereof, or, in the
case of school districts not issuing their own warrants, the
governing body of the appropriate issuing officer, may by
resolution authorize practices with respect to form, issuance,
delivery, endorsement and payment of warrants it deems
convenient, efficient and in the public interest . . . .”
The phrase in section 53910, “[i]n addition to any other
provision of law for the issuance and payments of warrants,”
necessarily applies to section 41003. Arguably section 53910
allows the City to establish its own procedure for the payment of
warrants. That would include transferring the duties provided in
section 41003 to the assistant treasurer.
Molina points out section 53910 is not limited to cities.
Molina argues that if the Legislature intended section 53910 to
trump section 41003, it either would have used “notwithstanding”
or amended section 41003.
But section 53910 by its terms applies to cities. By stating
section 53910 applies “[i]n addition to any other provision of law,”
the Legislature showed its intent that the section should apply
globally, including to section 41003. The Legislature was not
required to use the term “notwithstanding” or expressly amend
section 41003.
(c)
Molina contends the portion of the ordinance transferring
his duties under section 41004 to the director of finance is
invalid.
Section 41004 provides: “Regularly, at least once each
month, the city treasurer shall submit to the city clerk a written
report and accounting of all receipts, disbursements, and fund
8
balances. The city treasurer shall file a copy with the legislative
body.”
Section 41004 places the duty to provide a written report
and accounting on the treasurer, not the director of finance.
Again the City relies on section 34004 authorizing a transfer of
the treasurer’s duties. But section 34004 allows a transfer of
duties only to an officer “charged by applicable . . . general law”
with duties of the same character. The City points to no
applicable general law that charges the director of finance with
duties of the same character as the treasurer’s separating duty
under section 41004.
The City’s reliance on sections 40802 and 40805.5 is of no
avail. Section 40802 provides: “The city clerk is the accounting
officer of the city and shall maintain records readily reflecting the
financial condition of the city.”
Section 40805.5 provides: “The financial and accounting
duties imposed upon the city clerk by Sections 40802 through
40805 may be transferred to a director of finance when such office
has been established and the powers and duties thereof defined
by ordinance.”
As Molina points out, neither section 40802 nor section
40805.5 have a reporting requirement. A report on the City
finances by a treasurer who is directly answerable to the voters is
not the same as a report by the director of finance who is
answerable to other city officials. The treasurer is independent
and can provide a check on other city officials, including the City
counsel and the director of finance.
(d)
Molina contends the portion of the City’s ordinance
removing the treasurer from those authorized to sign warrants
9
and other financial instruments conflicts with his statutory
duties to receive and safely keep all monies the treasurer receives
(§ 41001), to comply with all laws governing the deposit and
securing of public funds and the handling of trust funds (§ 41002,
subd. (a)) and pay out money only on warrants signed by legally
designated persons (§ 41003).
But none of the statutes on which Molina relies provide
that the treasurer must be one of the persons legally designated
to sign warrants and financial instruments. Section 37203
provides: “Upon allowing a demand or approving a register of
audited demands, the mayor shall draw a warrant or warrants
upon the city treasurer specifying the purpose for which drawn
and the fund from which payment is to be made. The city clerk
shall countersign the warrant. The legislative body, by ordinance
or resolution, may prescribe an alternative method of drawing
warrants and checks.”
Section 37203 provides that the mayor shall draw the
warrant and the city clerk shall countersign the warrant.
Nothing in the section requires the treasurer to sign the warrant.
The section expressly authorizes the city’s legislative body to
designate the persons who can sign warrants and checks.
(e)
Molina contends that a portion of the City’s ordinance
deleting a list of the treasurer’s duties the City designates as
administrative conflicts with state law. But an ordinance that
simply deletes a list of duties may not conflict with state law.
The duties mandated by state law remain notwithstanding
their deletion by the ordinance. For example, one of the duties
deleted by the ordinance is to “[p]erform such duties relative to
the collection of City taxes and license fees as are prescribed by
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ordinance.” That is a duty mandated by section 41005. The
deletion of that duty by ordinance does not nullify the statutory
duty to collect city taxes and license fees.
DISPOSITION
The Government Code calls for an elected treasurer.
Molina was duly elected. The ordinances as a whole have the
intent and effect of removing Molina from his office. For this
reason, we reverse. All the challenged ordinances are void and
Molina’s duties as treasurer are restored. Molina’s salary is
restored to its previous compensation, including restoration of
compensation withheld pending resolution of this case.
The judgment is reversed. Costs on appeal are awarded to
appellant.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Norman Dowler and Michael G. Walker for Plaintiff and
Appellant.
Kenneth Rozell, Chief Assistant City Attorney and Jennie
M. Kelly, Assistant City Attorney; Richards, Watson & Gershon
and T. Peter Pierce for Defendants and Respondents.