Opinion
D076810
03-23-2021
MICHAEL ROBERTSON, Plaintiff and Appellant, v. MICHAEL VU, as Registrar of Voters, etc., et al. Defendants and Respondents.
Michael Robertson, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, Christina Snider, Deputy Counsel for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2019-00021239-CU-MC-NC ) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. Michael Robertson, in pro. per., for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, Christina Snider, Deputy Counsel for Defendants and Respondents.
In a November 2018 election, Del Mar School District (District) voters approved Measure MM authorizing the issuance of $186 million in general obligation bonds to improve Del Mar elementary schools. About five months later, Michael Robertson brought an action challenging the language of the measure's ballot materials and asserting other related claims. Robertson named as defendants Michael Vu (the then Registrar of Voters (Registrar)) and Thomas Montgomery (San Diego County Counsel (County Counsel)).
The court sustained defendants' demurrer without leave to amend, finding the claims could not be brought after the election, and, even if a postelection challenge was permitted, Robertson's lawsuit was filed too late. We affirm, concluding a preelection challenge was Robertson's exclusive remedy.
The appellate briefs in this case are essentially identical to the briefs filed in a separate appeal, Suprovici v. Vu (D077221), involving a San Diego Unified School District bond measure (Measure YY). Over appellants' objections, defendants moved to consolidate the appeals. We denied the motion because the appellants are different and each challenges a different bond measure and a ruling by a different superior court judge. We have considered each appeal separately, and reach the same conclusions.
FACTUAL AND PROCEDURAL BACKGROUND
Background
On August 6, 2018, the District adopted a resolution (Resolution) ordering an election to decide whether it should issue $186 million in general obligation bonds to improve Del Mar elementary schools. The District adopted the resolution under Proposition 39, which amended the California Constitution to reduce required voter approval to 55 percent when the indebtedness is to be incurred by school districts for the "construction, reconstruction, rehabilitation, or replacement of school facilities." (Cal. Const., art. XIII A, § 1, subd. (b)(3); Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 16.) The 55 percent standard applies only if certain accountability factors are satisfied. (Ibid.)
The Resolution included the statement that would appear on the ballot immediately preceding the citizen's vote on the measure. This ballot statement said:
"To improve Del Mar neighborhood elementary schools, repair/upgrade/reconstruct deteriorated school facilities, plumbing, roofs, electrical systems, renovate classrooms supporting science, engineering, math, arts instruction; improve safety/security and technology infrastructure; and construct/equip a new elementary school; shall Del Mar Union School District issue $186 million in bonds at legal rates, raising $10.4 million annually over 32 years at approximately 3 cents per $100 of assessed value, with independent citizens' oversight, mandatory audits, all money for Del Mar K-6 schools?The Resolution also contained the full text of the measure, including the required school facilities list, and the tax rate statement.
"Bonds - Yes Bonds - No"
Ten days later, on August 16, the Registrar published a public notice containing Measure MM's proposed ballot statement, and stating the election on the bond measure would be held on November 6, 2018. The notice stated that arguments for or against the measure must be submitted by August 17, and that the election materials would then be available for viewing at the Registrar's office. Arguments in favor were submitted, but no arguments were submitted against the measure.
County Counsel drafted an Impartial Analysis of the measure. The Registrar made available for public inspection the text of the measure, the Impartial Analysis, and the argument in favor of the measure. (Elect. Code, § 9509, subd. (a).) As required by section 9509, these materials were available in the Registrar's office for 10 days after the argument-submission deadline.
Unspecified statutory references are to the Elections Code.
The Registrar then mailed a voter information pamphlet to all County voters. On Measure MM, this pamphlet contained: (1) the ballot statement; (2) County Counsel's Impartial Analysis; (3) the argument in favor of the measure; (4) the full text of the measure, including each school's specific facilities project list; and (5) the tax rate statement.
The election was held on November 6, 2018. Measure MM passed with a 61.14 percent favorable vote. On December 6, 2018, the Registrar declared the results of the election.
Lawsuit
About four months later, on April 25, 2019, Robertson filed his complaint challenging Measure MM. The complaint contained nine causes of action.
In his first cause of action, Robertson alleged the Registrar violated statutory requirements in its publication notice by adding a phrase, and asserted various timing challenges pertaining to the dates of the 10-day public examination period. (See §§ 9509, 9500, 9501, 9504.)
In his second cause of action, Robertson challenged the Impartial Analysis, alleging it did not identify all of the bond's impermissible purposes (such as certain repayment types) or its restrictions (such as "non-construction related" salaries). He also alleged the Impartial Analysis did not state that the measure failed to meet Proposition 39 requirements and thus the 55 percent voter threshold did not apply.
In his third and fourth causes of action, Robertson alleged Measure MM did not meet Proposition 39 requirements for various additional reasons.
In his fifth through ninth causes of action, Robertson challenged Measure MM's ballot statement. First, Robertson alleged the ballot statement violated statutory requirements for the content of ballots by omitting the phrase, " 'Shall the measure . . . be adopted?' " and including impermissible advocacy and argumentative language. (See § 13119, subds. (a), (c).) Second, he alleged the ballot statement violated Education Code sections 15122 and 15272 by (1) stating the bond spending would have "independent citizens' oversight" without also stating the school board would "appoint" an oversight committee; (2) failing to disclose that "the board will . . . conduct annual independent audits" and that "funds are spent only on school and classroom improvements and for no other purposes"; and (3) using the words " 'at legal rates' " instead of identifying the maximum interest rates. Third, he alleged the ballot statement violated sections 13247 and 9051, subdivision (b), because it "exceeded the word count limit of 75 words by 2 words, thereby giving the School District a prejudicial and unfair advantage."
Under Section 13119, subdivision (a), a school bond measure "shall have printed . . . the words 'Shall the measure (stating the nature thereof) be adopted?' To the right or below the statement of the measure to be voted on, the words 'Yes' and 'No' shall be printed on separate lines, with voting targets." The code section also requires the ballot statement to be true, impartial, and nonargumentative. (§ 13119, subd. (c).)
Robertson attached two exhibits to his complaint: (1) a July 30, 2018 letter written to the Registrar and the San Diego County Board of Supervisors, stating the "school measures you are processing for the upcoming election" do not meet Election Code or Proposition 39 requirements, and detailing the reasons for this assertion; and (2) a postelection letter, dated November 28, 2018, objecting to "nonconforming ballot statements" in numerous approved bond measures, including Measure MM.
Robertson requested the trial court to set aside the election approving Measure MM, order the Registrar to reject future bond resolutions, and refer the Registrar to the district attorney for criminal prosecution.
Demurrer
Defendants demurred to the complaint. In their amended demurrer, they argued the lawsuit was untimely and an impermissible postelection challenge to ballot materials. Defendants asked the court to take judicial notice of various election documents, including the relevant portions of the ballot and voter information pamphlet for the November 6, 2018 election; the final election results; the District's August 6, 2018 Resolution; and proof of publication of the ballot statement and ballot-argument deadline.
Robertson describes two demurrers in his appellate briefs. However, there was only one demurrer that was amended after the case was reassigned and rescheduled to a later hearing date.
Robertson countered that a demurrer is procedurally improper in an elections contest. He also opposed the demurrer on its merits, arguing his claims fell within exceptions to the requirement that challenges to ballot materials must be brought before the election.
After granting defendants' request to take judicial notice of the election documents, the court sustained the demurrer without leave to amend. The court rejected Robertson's procedural argument, and, on the merits, found his claims were untimely (§ 16401) and improper postelection challenges not subject to any exceptions. The court also stated Robertson did not identify "any new or additional facts that could be alleged to overcome the deficiencies."
DISCUSSION
I. Review Standard
" 'In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.' " (Robertson v. Saadat (2020) 48 Cal.App.5th 630, 639 (Robertson).) "We are not bound by the trial court's reasoning and may affirm the judgment if correct on any theory." (Ibid.)
"We 'adopt[ ] a liberal construction of the pleading and draw[ ] all reasonable inferences in favor of the asserted claims.' " (Robertson, supra, 48 Cal.App.5th at p. 639.) We assume the truth of all facts properly pleaded in the complaint and attachments, but we disregard " ' "contentions, deductions, [and] conclusions of fact or law." ' " (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) We also consider judicially noticeable matters. (Ibid.)
We apply an abuse of discretion standard in reviewing whether an amendment should have been permitted. To show error, the appellant has the burden to identify specific facts establishing the complaint can be amended to state a viable cause of action. (Baldwin v. AAA Northern California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 559.)
II. Demurrer was Proper Procedure for Challenging Pleading
Robertson contends the court had no authority to rule on the demurrer because his claims are governed by the election contest procedures in the Elections Code (§ 16440 et seq.), not the Code of Civil Procedure.
A Court of Appeal recently rejected the identical contention. (Denny v. Arntz (2020) 55 Cal.App.5th 914, 924-925 (Denny).) The Denny court reasoned that the "Elections Code expressly incorporates the Code of Civil Procedure into procedures for election contests so long as they are compatible. [¶] There is no . . . incompatibility between a demurer and [the appellant's] [post]election contest [challenging ballot materials]. Section 16602 authorizes a trial court to 'dismiss the proceedings if the statement of the cause of the contest is insufficient,' which is no different from the standards in a demurrer under the Code of Civil Procedure. (§ 16602; Code Civ. Proc., § 430.10 subd. (e).)" (Id. at p. 925.) The Denny court also noted that several prior appellate decisions had resolved election contests through demurrers. (Ibid.; see Salazar v. City of Montebello (1987) 190 Cal.App.3d 953, 955; Hale v. Farrell (1981) 115 Cal.App.3d 164, 168; see also Warden v. Brown (1960) 185 Cal.App.2d 626, 626-629.)
Denny involved a postelection challenge to a San Francisco municipal bond measure, in which the Court of Appeal rejected many of the same contentions raised here. (Denny, supra, 55 Cal.App.4th 914.) Because Denny was published after the parties completed their appellate briefing, we provided the parties the opportunity to submit supplemental letter briefs addressing the Denny court's conclusions. We grant Robertson's request that we also consider the appellant's supplemental brief filed in the Suprovici appeal (see fn. 1, ante), but deny the additional judicial notice requests contained in the supplemental letters.
We agree with Denny's reasoning and conclusion. Anderson v. County of Santa Barbara (1976) 56 Cal.App.3d 780, relied upon by Robertson, is distinguishable. Anderson found summary judgment statutory deadlines were "incompatible" with the Elections Code, and thus held the trial court erred in granting the summary judgment in an election contest. (Id. at pp. 786-787.) There is no similar inconsistency between a demurrer proceeding and the election contest in this case. (See Denny, supra, 55 Cal.App.5th at p. 925.)
III. Postelection Challenge is Improper
Defendants demurred to the complaint on the ground Robertson's claims were precluded because his sole remedy was to assert the challenges before the election. The trial court agreed with this argument. We concur with this conclusion.
A. General Rule
It is well settled a challenge to ballot materials must be brought before an election. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192 (Sierra Madre); Denny, supra, 55 Cal.App.5th at p. 922; Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 123 (Owens); McKinney v. Superior Court (2004) 124 Cal.App.4th 951, 957 (McKinney); People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914, 932 (Kerr).) " 'The reasons are fundamental. Voters, not judges, mainly run our democracy. It would threaten that core tenet if one person who did not like the election result could hire lawyers and with ease could invalidate an expression of popular will.' " (Owens, at p. 124; accord Sierra Madre, at p. 192.)
As discussed in Part D, the statutes set forth specific procedures for challenging ballot materials and other similar claims before an election. Robertson acknowledges he did not avail himself of these procedures, but argues this case falls under statutory and constitutional exceptions to the preelection-challenge rule. He alternatively requests that we permit his lawsuit to go forward because the issues are reoccurring and will not otherwise be subject to review. These arguments are unavailing.
B. Statutory-Based Exception
Section 16100 contains a list of narrow circumstances under which a postelection challenge may be brought. Robertson argues this case falls within section 16100, subdivision (c), which states: "Any elector . . . may contest any election held therein, for . . . the following cause[ ] . . . [t]hat the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000)." (Italics added.)
Robertson contends his claims come within section 16100, subdivision (c) based on sections 18002 and 18401, which are contained in Division 18 of the Elections Code.
Section 18002 states: "Every person charged with the performance of any duty under any law of this state relating to elections, who willfully neglects or refuses to perform it, or who, in his or her official capacity, knowingly and fraudulently acts in contravention or violation of any of those laws, is . . . punishable by fine not exceeding one thousand dollars ($1,000) or by imprisonment . . . for 16 months or two or three years, or by both that fine and imprisonment." Section 18401 states: "Every person who prints any ballot not in conformity with [the Elections Code], or who circulates or gives to another any ballot, knowing at the time that the ballot does not conform to [the Elections Code], is guilty of a misdemeanor."
Robertson says his allegations that the ballot materials did not strictly conform to Elections Code requirements support that the Registrar and/or County Counsel can be held criminally liable under sections 18002 and 18401. This argument is without merit.
It is undisputed that defendants were not notified of alleged deficiencies in the ballot materials after these materials were prepared and before the election; the public was provided the full opportunity to examine the materials in time to bring any preelection challenge; and there was no preelection judicial challenge brought. Under these circumstances, defendants did not "knowing[ly]" or "willfully neglect[ ] or refuse to perform" a statutory duty within the meaning of these criminal statutes. (§ 18002, § 18401, italics added.) Similarly, there are no factual allegations showing defendants "fraudulently" acted in contravention of election laws. (§ 18002.) To the extent Robertson is asking this court to interpret section 16100, subdivision (c) to permit postelection challenges for any "nonconforming ballot," this construction is unsupported by the statutory language which requires an "offense against the elective franchise defined in Division 18." (§ 16100, subd. (c), italics added.)
Moreover, courts must consider statutory language "in the context of the entire statute and the statutory scheme of which it is a part." (Satele v. Superior Court (2019) 7 Cal.5th 852, 858; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27.) We must "reject a literal construction that is contrary to the legislative intent . . . or that would lead to absurd results." (Simpson, at p. 27.)
Interpreting section 16100, subdivision (c) as creating an exception to the preelection exclusive-remedy rule based solely on an allegation that an election official knew or should have known of a "nonconforming ballot" would be inconsistent with the statutory scheme and contrary to our duty to uphold elections " ' "if possible." ' " (Gooch v. Hendrix (1993) 5 Cal.4th 266, 279 (Gooch).) As the Denny court stated in response to a similar contention, "section 16100, subdivision (c) does not provide a statutory basis 'to attack the outcome of an election based on deficiencies in the impartial analysis' of a ballot measure after the election. . . . Enforcing the requirements for an impartial analysis . . . is a preelection activity." (Denny, supra, 55 Cal.App.5th at p. 921.)
Based on our interpretation of section 16100, subdivision (c), we do not reach defendants' alternate argument that this subdivision applies only when the candidate is the person who committed the bribe or otherwise committed an "offense against the elective franchise . . . ."
Robertson's reliance on Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417 and McDonough v. Superior Court (2012) 204 Cal.App.4th 1169 is misplaced. In both cases the challenges to ballot materials and voter guidelines were made before the election, not after. (See Huntington Beach, at p. 1426; McDonough, at pp. 1173-1174.)
C. Constitutionally Based Challenge
Robertson next argues that even if there is no statutory basis for bringing a postelection challenge, he is permitted to do so under a California Supreme Court decision filed 100 years ago and long before the enactment of the statutory exceptions to the preelection challenge rule. (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430 (Rideout).) The high court, however, has since reaffirmed that the statutory grounds/exceptions for a postelection contest set forth in section 16100 are generally exclusive (Sierra Madre, supra, 25 Cal.4th at pp. 193-194), and under the "modern Election Code provisions which postdate Rideout," a violation of a "mandatory" Election Code rule does not necessarily "invalidate or annul . . . the results of a contested election" (Gooch, supra, 5 Cal.4th at p. 278, fn. 7).
We recognize that under Rideout and more recent decisions, a postelection challenge may potentially have merit if the alleged improper election procedure violated notions of fundamental fairness and due process, i.e., where the violation prevented the voter from "freely and fairly making their choice at the polls." (Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 775-776, 777-779 (Horwath); see Rideout, supra, 185 Cal. at p. 432 [postelection challenge proper if "a considerable number of electors or voters" were precluded "from expressing their will at the polls"]; McKinney, supra, 124 Cal.App.4th at p. 959 [an election "might be set aside if there was malconduct that rose to constitutional levels"].)
However, to prevail on a constitutional challenge, the plaintiff must meet a " 'very high' " bar. (Kerr, supra, 106 Cal.App.4th at p. 934; see Owens, supra, 220 Cal.App.4th at p. 123 ["no California appellate court, to our knowledge, has invalidated an election on this basis"].) "A litigant cannot simply intone the words 'due process.' " (Kerr, at p. 934.) Instead, at the very least, a successful postelection constitutional challenge requires a showing the electorate was "profoundly misled." (Ibid.)
Robertson's allegations do not come close to meeting the fundamental unfairness standard. Robertson has not alleged any facts showing the voters were prevented from "freely and fairly making their choice at the polls" and/or expressing their will in the election. (Horwath, supra, 212 Cal.App.3d at p. 776.) The errors identified by Robertson (such as the number of words in the ballot statement, and the failure to use the precise statutory language) concern issues that would not have misled the electorate. (See Rideout, supra, 185 Cal. at pp. 430-432 [declining to overturn an election based on facts showing certain mandatory words were not contained on the back of the ballot and there were deviations from the prescribed size of certain type]; see also Gooch, supra, 5 Cal.4th at p. 278 [" ' "[t]echnical errors or irregularities arising in carrying out directory provisions which do not affect the result will not [void] the election" ' "]; Horwath, supra, 212 Cal.App.3d at pp. 777-779 [city's failure to comply fully with statutory requirements governing preparation of impartial analysis did not render measure unconstitutional]; Kerr, supra, 106 Cal.App.4th at p. 934.) Robertson acknowledged in his complaint there was no way to know with certainty whether the vote would have been different without the alleged violations.
Robertson contends the voters could not make an informed and fair choice because the ballot statement and the Impartial Analysis were written in a biased manner. Our review of the materials does not support this contention. But even if there was such language in these materials, this does not reflect the existence of a constitutional violation permitting Robertson to raise the issue for the first time after the election. Before the election, the voters were provided with the complete text of Measure MM (including the tax rate statement and the project list for every elementary school), and the voters would have understood that the ballot statement was merely a summary of the measure and the Impartial Analysis was just that—an analysis—and not the complete statement of the bond measure. The challenged ballot language would not have prevented the voters from voting intelligently on the measure and was not "so inaccurate or misleading as to prevent voters from making informed choices." (Horwath, supra, 212 Cal.App.3d at p. 777; accord Owens, supra, 220 Cal.App.4th at p. 126; Kerr, supra, 106 Cal.App.4th at pp. 918-919.)
The alleged circumstances do not rise to the level of fundamental unfairness that would exempt a voter from the settled rule that challenges to ballot materials and other preelection issues must be brought before the election.
D. Discretionary Review
Robertson alternatively contends this court should exercise its discretion to address his claims because "they pose issues of continuing public interest that are likely to recur and . . . present questions capable of repetition yet evading review." Robertson cites no authority supporting that a court has the discretion to consider a postelection challenge where there is no applicable statutory or constitutional exception. But even if we did have this authority, we would not exercise it because the issues raised here are not ones that would evade review.
The Elections Code specifically sets forth procedures for preelection challenges to alleged flaws in the voter information pamphlet and/or ballot. (Denny, supra, 55 Cal.App.5th at p. 922.) These procedures provide for a 10-day examination period for members of the public to review the measure, the impartial analysis, and the arguments for and against the measure before they are printed in the ballot materials. (§ 9509, subd. (a).) During this 10-day period, "any voter of the jurisdiction in which the election is being held . . . may seek a writ of mandate or an injunction requiring any or all of the materials to be amended or deleted." (§ 9509, subd. (b)(1).) Section 13314, subdivision (a)(1) also provides for a preelection judicial challenge to ballot materials: "An elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, county voter informant guide, state voter information guide, or other official matter, or that any neglect of duty has occurred, or is about to occur."
Robertson had the opportunity to invoke these preelection procedures, but he did not do so. He attached a letter to his complaint that he and others sent to election officials before the Resolution was adopted, detailing statutory requirements for bond measures and admonishing the officials to "FOLLOW THE LAW," pertaining to school bond measures. He thus was admittedly aware of the District's intention to consider a bond resolution the next month. He does not identify any reason that he could not have brought a writ of mandate petition under statutory procedures before the election. On this record, there is no ground to find the issues would "evade review" or to decline to apply the statutes requiring a preelection challenge for claims such as the ones before us.
At one point in his brief, Robertson suggests the Registrar's August 16 publication of the argument deadlines violated statutory standards. However, he does not cite to any legal authority supporting this argument, nor does he assert any ground showing he could not have raised this issue in a preelection challenge. We likewise find unhelpful Robertson's comparison of the Registrar's 2018 deadlines for submitting ballot arguments with the deadlines for 2020 measures.
In his reply brief, Robertson suggests we should reach the merits of his contentions because election officials in this state, and defendants in particular, have a pattern of preparing biased and misleading impartial analyses and ballot statements. Even assuming this is true, Robertson does not explain why he could not assert his claims before the election in which the ballot materials were alleged to be improper.
Robertson also discusses various Proposition 39-based bond measures on 2020 ballots in other counties. Because these assertions concern facts occurring after the judgment and involve different counties, this discussion is not properly before us. We decline Robertson's request in his appellate brief that we take judicial notice of ballot materials for various Proposition 39-based school bond measures in different counties for the March 3, 2020 election. Robertson did not follow required procedures for requesting judicial notice because he did not file a separate motion or attach copies of the requested materials. (See Cal. Rule of Court, rule 8.252.) Additionally, those 2020 ballot materials for other counties are irrelevant to the issues before us and do not show the court in this case erred in sustaining the demurrer.
IV. Remaining Arguments
Robertson devotes most of his appellate briefs to raising substantive challenges to the ballot statement and Impartial Analysis and related issues. Because we conclude his exclusive remedy was to assert these arguments before the election, we do not reach these arguments. We likewise do not address defendants' alternative arguments in support of their demurrer, such as the statute of limitations.
Three of Robertson's causes of action do not relate directly to the language of the ballot materials: (1) the first cause of action alleging errors with respect to the timing of the 10-day inspection period, and (2) the third and fourth causes of action pertaining to claimed inconsistencies between Measure MM and Proposition 39.
As to the first cause of action, Robertson does not identify any ground showing he could not have raised these timing issues before the election. Thus, these claims are similarly barred by the exclusive preelection challenge rule. Additionally, Robertson does not separately discuss these issues or provide legal authority supporting these claims, and thus the contentions are forfeited. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)
As to the third and fourth causes of action, Robertson does not separately explain the legal basis supporting these allegations, nor does he identify any grounds upon which these defendants would have any liability or authority over substantive claims challenging the bond measure. Thus, any such contentions are forfeited and without merit. (See Cahill, supra, 194 Cal.App.4th at p. 956.)
Robertson does not contend the court erred by refusing to permit leave to amend, and has not met his burden to show a basis for error in this regard. Thus, any such claim is also forfeited and without merit.
DISPOSITION
Judgment affirmed. Appellant to bear respondents' costs on appeal.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.