Untitled California Attorney General Opinion

California Attorney General Reports·Decided February 17, 1989·No. 88-792·Published

Opinion

OFFICE OF THE ATTORNEY GENERAL

State of California

JOHN K. VAN DE KAMP

Attorney General

----------------------------------- :

OPINION :

: No. 88-792

of :

: FEBRUARY 17, 1989

JOHN K. VAN DE KAMP :

Attorney General :

N. EUGENE HILL :

Assistant Attorney General :

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C.R.E. SMITH filed an application for leave to sue in quo warranto

in the name of the People of the State of California on the relation of Richard

Clements versus proposed defendants William Bennetta, Marlon Malcom, Shirley

Anderson, and Margaret Feldstein. This application included a Notice of

Application to Sue, a proposed verified Complaint in Quo Warranto, Points and

Authorities for Leave to Sue, a Declaration of William B. Hafferty, and a Proof

of Service of these documents upon the proposed defendants.

On February 6, 1987, the proposed defendants submitted a response to

the application for leave to sue. A reply was submitted on March 5, 1987; the

proposed defendants submitted a rebuttal on March 11, 1987. Proposed defendants

were requested to provide additional information by letter dated May 27, 1987,

and both parties responded to a request for information concerning the bond issue

and recall election, said request issued on September 1, 1987. Thereafter, this

matter was taken under consideration by the Attorney General's Office.

CONCLUSION

It is determined that leave to sue should be denied.

STATEMENT OF MATERIAL FACTS

Background:

On or about April 24, 1984, the Board of Supervisors of the County

of Sonoma adopted a resolution ordering the formation of the Timber Cove County

Water District, formally confirming the April 10, 1984 election of each of the

proposed defendants as directors of said district. The proposed defendants

entered into possession of said offices on that date and have continued in

possession and have exercised the duties of said offices to the present date.

A controversy presently exists within the Timber Cove Water District

concerning a proposed expansion and improvement of the water system at a cost of

approximately $1.8 million. In January of 1987 improvement bonds were issued and

liens against the lots were recorded on February 2, 1987. On September 22, 1987,

the proposed defendants were the subjects of a recall election. The voters of

the Timber Cove Water District chose to retain all four directors. Two of the

proposed defendants have since faced their electorate and been returned to office

(Anderson and Feldstein).

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Proposed Defendant Bennetta:

Proposed defendant Bennetta first registered to vote in Sonoma County

on April 8, 1980. He owns a two-bedroom home at 22210 Umland Circle in Timber

Cove, and claims a homeowner's property tax exemption on the dwelling. Mr.

Bennetta is the registered owner of a 1978 Toyota pickup truck. His registration

of the vehicle with the Department of Motor Vehicles shows an address of P.O. Box

26603 in San Francisco, and that the vehicle is garaged primarily at 2210 Umland

Circle in Timber Cove.

Mr. Bennetta is listed in the San Francisco phone book with an

address of 3515 Fillmore Street. Mr. Bennetta declares that he maintains a

studio apartment at that address for business purposes, and that he shares such

apartment on an alternating basis with another resident of Sonoma County. Mr.

Bennetta spends occasional evenings there while on business. He does not claim

a renter's credit with the Franchise Tax Board on such address. In response to

an inquiry into the percentage of time he spent at Timber Cove between May 1986

and May 1987, Mr. Bennetta declared that he spends the greater degree of time not

in Timber Cove or San Francisco but at a friend's home in Petaluma. No further

information was provided with respect to this Petaluma abode.

Mr. Bennetta utilizes the previously referenced post office box in

San Francisco for all of his mail. His personal stationary shows an address in

the upper left-hand corner of 22210 Umland Circle in Timber Cove, and in the

upper right-hand corner of P.O. Box 26603 in San Francisco. It is Mr. Bennetta's

practice to type in "Address for mail" adjacent to the post office box listing.

The proposed relator claims, through the declaration of private

investigator William B. Hafferty, that numerous neighbors, associates and people

who work with Mr. Bennetta all contend that his principal residence is in San

Francisco. None of these individuals is named; however, one is listed as the

Public Information Officer for Pacific Discovery magazine, a journal to which

Mr. Bennetta has submitted articles. Mr. Bennetta contends that there is no

public information officer for such magazine, and that no one associated with

such journal has sufficient contact with him to know his principal residence.

Mr. Bennetta's term on the board expires in 1989.

Proposed Defendant Malcom:

Proposed defendant Marlon Malcom owns a residence at 22174 Coast

Highway in Timber Cove, and he claims a homeowner's property tax exemption on

this dwelling. He receives his mail at a post office box in Duncan Mills, which

address is listed with the Department of Motor Vehicles for the registration of

his 1971 Dodge vehicle. He has been registered to vote in Sonoma County, at the

Timber Cove address, since October of 1983.

Mr. Malcom maintains a one-bedroom apartment for use an office at

1725 Jones Street in San Francisco. He has been listed in the San Francisco

telephone book at this address. He contends that he only occasionally spends

nights there when he is in San Francisco on business.

Mr. Malcolm's term on the board expires in 1989.

Proposed Defendant Anderson:

Proposed defendant Shirley Anne Anderson is the owner of a home at

22070 Highway One in Timber Cove. She became sole owner of the property in 1983

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pursuant to a divorce decree. Since January, 1984, she has been registered to

vote in Sonoma County, listing the Timber Cove property as her residence.

At the time of her divorce, Ms. Anderson and her ex-husband had

ownership interests in four properties besides the Timber Cove home: a

condominium in Boulder, Colorado, a house in Connecticut, an interest in an

office complex in San Rafael, and a house in San Geronimo. It appears that prior

to her divorce, Ms. Anderson and her husband primarily resided at the San

Geronimo home.

During and following her divorce proceeding, Ms. Anderson had a

series of temporary residences throughout Marin County. The May, 1986, Marin

County telephone book lists an address for her at 2036 Paradise Drive in Tiburan,

a residence she claims she maintained between August 1, 1985, and March, 1986.

In March of 1986 she moved into a home she owns in San Geronimo,

separate from the one she and her ex-husband had previously owned. Tenants who

had been living at the property had vacated in February of 1986 due to storm

damage. Ms. Anderson contends she is merely staying at the property pending

extensive repairs. In addition to her Timber Cove and San Geronimo homes,

Ms. Anderson has a one-half ownership in a condominium in Novato.

Ms. Anderson utilized her homeowner's property tax exemption for her

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