Can a Poway resident remove a city councilmember whose appointment depended on the deciding vote of a former councilmember who had moved away?

Plain-English summary

In November 2024, Brian Pepin announced his resignation from the Poway City Council, with the resignation to take effect when his successor was seated. Pepin sat out two December meetings but returned for the January 21, 2025 meeting, where the Council voted 3-2 to appoint Christopher Pikus to fill his District 1 seat. Pepin cast one of the three majority votes. He then exited the dais, and Pikus was sworn in.

Hiram Soto, a Poway resident, told the City Attorney before the vote that Pepin had moved out of District 1 in late November and so could not lawfully cast a vote on his replacement. The Poway City Attorney concluded otherwise, reasoning under California Elections Code section 349 and Government Code section 244 that "residence" means "domicile" and that a person cannot lose a domicile until acquiring a new one. The Council seated Pikus and moved on. Soto then applied to AG Rob Bonta for leave to sue in quo warranto to oust Pikus on the theory that Pepin's vote was invalid and Pikus's appointment fell short of the required majority.

The AG denied leave to sue. The decisive holding is the de facto officer doctrine. Pepin was physically present at the January 21 meeting, openly seated as the District 1 representative, and acting with the apparent acquiescence of the public and the Council. Even if Pepin had become legally ineligible due to a residency change, the de facto officer doctrine treats the lawful acts of a sitting officer as binding on third parties. Quo warranto could have been used to challenge Pepin's right to hold office while he was still in it, but cannot be used to invalidate his vote retroactively, particularly to oust a different person (Pikus) whose only sin is having been appointed by a vote Pepin happened to cast.

The AG explicitly declined to decide the underlying domicile question and made no finding on whether Pepin's residency had actually changed.

What this means for you

If you are a city councilmember thinking about resigning mid-term

Time matters. Once you leave office, you cannot be removed by quo warranto, because the remedy can only test the right of someone currently holding a public office. A challenge to your eligibility while you are still seated is the only direct route. If you plan to vote on your successor before resigning, the quiet move is to make sure your residency, attendance, and physical presence at the deciding meeting is unambiguous. Anything that paints you as a "former" or "in-transition" officer leaves room for a constituent to lodge an eligibility challenge while you are still on the dais. Once you step down, the moment passes.

If you are a citizen who thinks a councilmember is no longer eligible

Act now, not later. The AG explicitly said quo warranto "may have been available to directly challenge" Pepin's right to hold office during the period he had allegedly vacated his District 1 residence. That window closed when Pepin left office. Watching and waiting until the controversial vote happens, then trying to unwind the vote retroactively, is too late. If you have a residency, attendance, or other eligibility argument, file the AG application before any decisive vote.

If you are a city attorney advising the city

This opinion is a useful citation for the proposition that votes by sitting members, even if their eligibility is contested, are protected by the de facto officer doctrine. A council in this position can move forward with a vote and rely on Marine Forests, Bunker Hill, and now this opinion to defeat retroactive collateral attacks. That said, the safer course is the one the Poway City Attorney took: produce a written legal memorandum on the residency question before the vote so the record shows the council acted in good faith.

If you are a parties' counsel briefing residency

The City Attorney's analysis turned on Elections Code section 349(a) ("residence for voting purposes means a person's domicile") and Government Code section 244, which the City Attorney read with Walters v. Weed for the proposition that domicile, once established, persists until a new domicile is acquired. The AG declined to take a position on that analysis. So the question of how California's domicile-persists rule applies to mid-term residency departures, with intervening travel and remote work, remains an open one.

If you are a journalist

The takeaway is procedural, not factual. The AG did not say Pepin was eligible. The AG said: even if Pepin was not eligible, his vote stands under the de facto officer doctrine, and Pikus stays seated. The dispute over whether Pepin actually had a Florida domicile by January 21 is left unresolved.

Background and statutory framework

Code of Civil Procedure section 803 lets the AG sue, on a private party's complaint, "any person who usurps, intrudes into, or unlawfully holds or exercises any public office." Quo warranto is the only legal procedure for testing title to a public office (People v. Olds; Hallinan v. Mellon). City councilmember is a public office for quo warranto purposes.

The de facto officer doctrine is the centerpiece of this opinion. The AG cited In re Bunker Hill Urban Renewal Project 1B (1964) for the operative rule: "The lawful acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it." The Marine Forests Society case extended the doctrine even to scenarios where the entire appointment scheme was alleged unconstitutional. The doctrine's policy basis: "the public should not have to inquire whether the officer has a right to hold that office or compel the officer to prove their right to hold the office" (Oakland Paving Co. v. Donovan).

The Poway-specific facts: Pepin announced his resignation by email on November 25, 2024, "effective upon my seat being filled with a replacement." Government Code section 36512 governs city council vacancies, requiring the council to fill a vacancy by appointment or special election within 60 days. State law allows a resigning councilmember in a district-elected city to vote on their own successor (Gov. Code § 36512(e)(1)). Poway Municipal Code section 2.04.070(C) declares an "immediate vacancy" when a councilmember terminates residency in the district unless a substitute residence within the district is established within 30 days.

Soto's eleventh-hour evidence that Pepin had purchased property in Florida around the appointment vote did not change the AG's outcome. The AG noted: "Even were we to accept Relator's interpretation of this information, our conclusion would remain unchanged in light of our analysis of the de facto officer doctrine."

Common questions

Could Soto have sued to remove Pepin while Pepin was still on the council?
Yes. The AG was explicit: a quo warranto application targeting Pepin's right to hold office, filed in late November or December 2024 while Pepin had allegedly vacated District 1 but was still seated, would have been the appropriate vehicle. The window closed when Pepin's resignation took effect on January 21.

What if Pepin's vote had been the only majority vote, with no other backstop?
The AG would still have applied the de facto officer doctrine. Marine Forests held that even an entire commission's actions could be protected. The doctrine does not get weaker as the contested vote becomes more important; if anything, the public-policy rationale for the doctrine (avoiding "crippling" of government operations) gets stronger.

Was Pepin's vote on his own successor itself improper?
The opinion does not address this. Government Code section 36512(e)(1) expressly permits a resigning councilmember in a district-elected city to vote on the appointment of their successor. Whether that statutory permission is in tension with conflict-of-interest principles is outside the scope of this denial.

Does this mean a councilmember can move out of district and keep voting indefinitely?
No. While they remain seated, they are still subject to a direct quo warranto challenge while in office. And ordinary political accountability, including the council's own ability to declare a vacancy under Poway Municipal Code section 2.04.070(C), still applies. The de facto officer doctrine just protects already-cast votes from collateral attack after the fact.

Did the Florida-property evidence prove Pepin had moved his domicile?
The AG did not decide. It noted Pepin made an offer on Florida property December 29, 2024, and the property was "sold" and "under construction" by February 19, 2025. The AG sidestepped the domicile fight as unnecessary to the de facto officer holding.

What if Pikus, the replacement, were himself ineligible?
That would be a different case. A direct quo warranto against Pikus, alleging his own ineligibility (residency, age, qualifications), would be available because Pikus is the one currently in office. This opinion only forecloses a derivative challenge that depends on retroactively invalidating Pepin's vote.

Citations

• Code of Civil Procedure section 803 (quo warranto authority)
• Government Code section 36512 (city council vacancies, appointment, and resigning member's vote on successor)
• In re Bunker Hill Urban Renewal Project 1B (1964) 61 Cal.2d 21 (de facto officer rule for third parties)
• Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1 (doctrine survives even constitutional appointment challenges)
• Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488 (public-policy rationale for the doctrine)
• People v. Olds (1853) 3 Cal. 167 (quo warranto is the exclusive procedure for testing title to a public office)
• Walters v. Weed (1988) 45 Cal.3d 1 (cited by Poway City Attorney for domicile persistence)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/25-301.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
MANUEL M. MEDEIROS
Deputy Attorney General

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No. 25-301
December 4, 2025

Proposed Relator HIRAM SOTO (Relator) has applied for leave to sue the CITY
OF POWAY in quo warranto to remove CHRISTOPHER PIKUS from office as a
member of the Poway City Council. The application alleges that Pikus’s appointment to
the City Council was invalid because it was not supported by the necessary votes of a
majority of the eligible councilmembers. Former Councilmember Brian Pepin voted in
the majority, and Relator alleges that Pepin was not a resident of his electoral district at
the time of the vote and was therefore no longer a qualified councilmember.
While quo warranto may have been available to directly challenge former
Councilmember’s Pepin’s right to hold office after he allegedly vacated his district
residence and before he cast his vote, Soto may not use the quo warranto remedy to oust
current Councilmember Pikus from office by retroactively challenging Pepin’s right to
vote. In light of the de facto officer doctrine, which precludes such challenges, we
conclude that Relator presents no substantial question of law or fact that warrants judicial
resolution and that the public interest would not be served by granting Relator’s
application here. Accordingly, the application for leave to sue is DENIED.
BACKGROUND
The critical facts here occurred within a two-month period between November
2024 and January 2025. On November 25, 2024, Councilmember Brian Pepin sent an
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email to the Poway City Manager advising that he would be resigning his District 1 seat
on the City Council “effective upon my seat being filled with a replacement.” 1 Although
a city councilmember’s resignation is generally made effective upon proper delivery of a
letter of resignation, the letter may specify an effective date other than the date of
delivery. 2 Moreover, in cities that are divided into council districts, state law allows the
resigning member to vote on the appointment of a successor. 3 Following submission of
his resignation, Pepin absented himself from the next two City Council meetings but
attended a later meeting, at which he voted for his successor. 4
When the City Council met on December 3, 2024, without Pepin in attendance, the
Council voted to fill Pepin’s seat by appointment, rather than by calling a special
election. 5 Two days before the January 21 meeting at which the appointment vote took
place, Hiram Soto, our proposed relator, informed the City Attorney that Pepin had
vacated his residence in District 1 of Poway “shortly after he submitted his resignation
letter.” 6 According to Soto: “Mr. Pepin’s residency in District 1 has been terminated, and
he has not established a new residence within the district. This renders him ineligible to
continue as a council member, and an immediate vacancy must be declared pursuant to
Poway Municipal Code Section 2.04.070(C).” 7 That ordinance provides, in pertinent
part: “Termination of residency in a district by a member of the City Council shall create
an immediate vacancy for that Council district unless a substitute residence within the
district is established within 30 days after the termination of residency.” 8
Relator’s Verified Statement of Facts, ¶ 2; id. at Exh. A; City’s Verified Statement of
Facts, ¶ 13.

1

2

Gov. Code, § 1770, subd. (c)(2).

3

Gov. Code, § 36512, subd. (e)(1).

See City of Poway, City Council Regular Meeting Minutes (Dec. 3, 2024),
https://tinyurl.com/32vpj8sa (Dec. 3 mins.); City of Poway, City Council Regular
Meeting Minutes (Dec. 17, 2024), https://tinyurl.com/udys99ea (Dec. 17 mins.); City of
Poway, City Council Regular Meeting Minutes (Jan. 21, 2025), p. 6,
https://tinyurl.com/59y2tb25 (Jan. 21 mins.).
4

Dec. 3 mins., supra, at p. 4. Within 60 days from the commencement of a vacancy, a
city council must either fill the vacancy by appointment or call a special election. (Gov.
Code, § 36512, subd. (b).)
5

Declaration of Alan B. Fenstermacher in Support of City of Poway’s Memorandum,
Exh. 1, p. 11 (note from Soto to City Attorney Alan Fenstermacher) (Fenstermacher
Decl.).

6

7

Id. at Exh. 1, p. 12.

8

Poway Mun. Code, § 2.04.070(C).
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On January 21, the day of the scheduled meeting, the Poway City Attorney
provided a legal memorandum to the City Council advising of his disagreement with
Soto. He concluded that Pepin was still eligible to hold office “because he has not yet
established a new ‘domicile,’ or legal residence” elsewhere. 9 The City Attorney reasoned
that “residence” within the meaning of the Municipal Code is a term of art defined by the
Elections Code as a person’s domicile or legal residence. 10 He further reasoned that
statutes and judicial precedent require that a person cannot lose their domicile until they
have gained another. 11
On the same date on which it received the memorandum, January 21, 2025, the
City Council voted 3-2 to appoint Christopher Pikus to fill Pepin’s anticipated vacancy. 12
Without apparent objection from the other members, Pepin voted on the appointment,
completing the vote majority needed to appoint Pikus as his replacement. Immediately
following the vote, Councilmember Pepin “exited the dais,” and Pikus was sworn in and
took his seat. 13
On or about February 17, 2025, Soto applied to the Attorney General for leave to
sue in quo warranto for the purpose of removing Councilmember Pikus from the District
1 seat. 14 Soto alleges that, prior to voting on his replacement, Pepin relinquished
possession of his residence in Poway City Council District 1. 15 He alleges further that,
“[b]ecause Mr. Pepin was not a bona fide member of the Poway City Council when he
voted to appoint Pikus as the replacement representative for District 1, the appointment is
invalid and Pikus does not lawfully hold any position on the Poway City Council.” 16
9

Fenstermacher Decl., Exh. 1, p. 5.

Id. at Exh. 1, pp. 5-6; Elec. Code, § 349, subd. (a) (“ʻResidence’ for voting purposes
means a person’s domicile”).
10

Fenstermacher Decl., Exh. 1, pp. 6-8; see Gov. Code, § 244, subd. (c); Walters v. Weed
(1988) 45 Cal.3d 1, 7. We express no view on the accuracy of the City Attorney’s
analysis in the circumstances here.
11

12

Jan. 21 mins., supra, at p. 6.

13

Ibid.

14

See Cal. Code Regs., tit. 11, §§ 1, 2.

15

Proposed Complaint, ¶ 8.E; Relator’s Verified Statement of Facts, ¶ 6.B.

Proposed Complaint, ¶ 8.F, capitalization altered. Relator also alleged that Pepin had
executed a deed of trust to purchase a residence in Morgan Hill, California. (Id. at ¶ 8.D.)
Relator has apparently abandoned the suggestion that the Morgan Hill home is Pepin’s
domicile after undisputed evidence showed that the deed of trust was, in fact, for the
purpose of obtaining a home equity loan on property that Pepin had already owned for
(continued…)
16

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The City of Poway opposes Soto’s application. Councilmember Pikus himself,
though named as the “real party in interest,” submitted no opposition.
The City does not deny that Pepin had vacated his residence in District 1, but—as
the City Attorney previously opined—the City argues that Pepin’s former residence
constituted his “domicile,” or legal residence, and that under applicable case law, his
former home remains his “domicile” until he gains a new one. 17
In support of the City’s opposition, former Councilmember Pepin filed his own
declaration, stating: “In November 2024, I vacated my residence at 13924 Olive Mesa
Court in the City of Poway (‘Poway Residence’), but as of January 21, 2025, I had not
established a new permanent residence. During that entire time period, I was on an
extended trip with my family, working remotely while commuting back and forth to the
area as needed, and evaluating where to live permanently.” 18
Relator’s complaint seeks a judgment determining that the City did not comply
with applicable laws in replacing Pepin, and determining “that the office Pikus purports
to occupy on the Poway City Council is vacant as a matter of law.” 19 For the reasons
explained below, we deny Relator’s application to sue in quo warranto.
ANALYSIS
“Quo warranto,” literally meaning “by what authority,” was a writ at common law
by which the Crown instituted a formal inquiry into whether a subject had the right to
hold public office. 20 The remedy has evolved to become a judicial action brought by the
several years as long-term rental-investment property. (See City of Poway’s
Memorandum in Opposition, pp. 7-8.)
City of Poway’s Memorandum in Opposition, pp. 13-14. After we received the
parties’ initial submissions, Relator’s attorney submitted additional materials alleging that
newly discovered information showed Pepin had purchased residential real property in
Florida around the time of the appointment vote. The materials indicate that Pepin made
an offer on the Florida property on December 29, 2024, and that the property was “sold”
and “[u]nder [c]onstruction” on February 19, 2025. The parties debate whether this
demonstrates that Pepin had acquired a new out-of-state domicile as of the January 21
appointment vote. We need not resolve this issue. Even were we to accept Relator’s
interpretation of this information, our conclusion would remain unchanged in light of our
analysis of the de facto officer doctrine below.
17

18

Pepin Declaration, ¶ 8.

19

Proposed Complaint, Prayer ¶ A.1, capitalization altered.

Rando v. Harris (2014) 228 Cal.App.4th 868, 875 (Rando); 101 Ops.Cal.Atty.Gen. 76,
77 (2018).
20

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sovereign people of the state, through their attorney general, to try a public officer’s right
to hold the public office. In California, the remedy is codified in section 803 of the Code
of Civil Procedure. 21 An individual (known as the “relator”) who seeks to bring a quo
warranto action must first obtain the consent of the Attorney General. 22 The decision
whether to grant that consent (also known as “leave to sue”) lies within the Attorney
General’s broad discretion. 23
In deciding whether to grant leave to sue, we do not resolve the merits of the
dispute itself; we only decide whether quo warranto is an available and appropriate
remedy, whether the application presents a substantial issue of fact or law that warrants
judicial resolution, and whether granting the application will serve the public interest. 24
In this case, we conclude that Relator’s proposed use of the quo warranto remedy
to oust Christopher Pikus runs afoul of the “de facto officer doctrine.” Accordingly, no
substantial issue of law or fact is presented that warrants judicial resolution in the public
interest.
1. Quo Warranto Is the Appropriate Legal Process for Testing an Officer’s Title to
a Public Office
The first question we address is whether quo warranto would be the appropriate
legal means for ousting Pikus from office, assuming there is a basis to remove him. It
would. Indeed, quo warranto is the only legal method for determining title to a public

The statute provides in relevant part: “An action may be brought by the attorneygeneral, in the name of the people of this state, upon his own information, or upon a
complaint of a private party, against any person who usurps, intrudes into, or unlawfully
holds or exercises any public office, civil or military, or any franchise, or against any
corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or
exercises any franchise, within this state.” (Code Civ. Proc., § 803.)

21

Nicolopulos v. City of Lawndale (2001) 91 Cal.App.4th 1221, 1228-1229. Quo
warranto actions are brought by the Attorney General, in the name of the People of the
State of California, and may be “on relation” (ex rel.) of a private person. (See People ex
rel. Leavitt v. Bass (1910) 15 Cal.App. 62, 66 [“Leavitt is merely the relator—the
informant”]; People ex rel. Goodell v. Garrett (1925) 72 Cal.App. 452, 455;
73 Ops.Cal.Atty.Gen. 197, 201 (1990) [relator “acts merely as an informant”];
35 Ops.Cal.Atty.Gen. 198, 199 (1960) [same].)
22

23

Rando, supra, 228 Cal.App.4th at pp. 877-878.

Rando, supra, 228 Cal.App.4th at p. 879; 101 Ops.Cal.Atty.Gen. 16, 17 (2018);
87 Ops.Cal.Atty.Gen. 30, 31 (2004) (Attorney General makes no final judgment).
24

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office. 25 And the position of city councilmember is a public office for quo warranto
purposes. 26
Code of Civil Procedure section 803 specifies that “[a]n action may be brought by
the attorney-general . . . upon the complaint of a private party, against any person who
usurps, intrudes into, or unlawfully holds or exercises any public office.” Commonly, an
individual may challenge a city councilmember’s eligibility to hold office by seeking
Attorney General approval to bring a quo warranto action directly against that
councilmember. 27 Or, it may be the case that the city council has declared a seat vacant
for a reason described in a statute or ordinance and has appointed a replacement. In that
scenario, the ousted councilmember may bring a quo warranto action against the
appointed successor, for the purpose of proving that the city council erred and that the
ousted officer is still entitled to the office. 28 In either of these circumstances, the
councilmember whose title to the office is being challenged is the plaintiff or the
defendant and, as such, they are in a position to defend their right to hold office. 29
In this case, quo warranto would have been available to directly challenge former
Councilmember Pepin’s right to hold office after he allegedly vacated his district
residence. But once Pepin left office, a quo warranto action to remove him was no longer
available—the issue of Pepin’s right to hold office was then moot. 30 Relator therefore
People v. Olds (1853) 3 Cal. 167, 170-176; Hallinan v. Mellon (1963) 218 Cal.App.2d
342, 344; 72 Ops.Cal.Atty.Gen. 15, 21 (1989) (“[Q]uo warranto is the only proper
procedure to determine the right or title to a public office occupied by a de facto
incumbent”).
25

26

See 99 Ops.Cal.Atty.Gen. 74, 76 (2016); 87 Ops.Cal.Atty.Gen., supra, at p. 31.

See, e.g., People ex rel. Schlesinger v. Sachs (2023) 97 Cal.App.5th 800, 817 (in the
usual quo warranto action “the burden is on the defendant office holder to show he or she
is ʻlawfully holding and exercising the office’”); 100 Ops.Cal.Atty.Gen. 26, 26 (2017)
(city brings quo warranto action against councilmember for excessive absence).
27

See, e.g., 103 Ops.Cal.Atty.Gen. 33, 36 (2020) (ousted councilmember sues putative
successor; “it is Relator’s eligibility, rather than Defendant’s, that is ultimately at issue,”
italics in original); see also People ex rel. Tracy v. Brite (1880) 55 Cal. 79, 79.
28

People ex rel. Fleming v. Shorb (1893) 100 Cal. 537, 541; Klose v. Superior Court in
and for San Mateo County (1950) 96 Cal.App.2d 913, 917-918 (officer “may always
have his day in court before it can be conclusively adjudged against him that the office
was vacant at the time the appointment was made”).
29

People ex rel. Strong v. City of Whittier (1933) 133 Cal.App. 316, 324; see also
Citizens Utilities Co. v. Superior Court (1976) 56 Cal.App.3d 399, 406;
96 Ops.Cal.Atty.Gen. 36, 42 (2013) (question whether assigned judge was unlawfully
(continued…)
30

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proposes to sue the City of Poway and Councilmember Pikus to invalidate Pikus’s
appointment and oust Pikus from office. That is, Relator proposes to have Pepin’s vote
declared invalid retroactively, leaving Pikus one vote short of the necessary majority. As
explained next, Pepin’s vote cannot be challenged in these circumstances.
2. Under the De Facto Officer Doctrine, the Validity of Pepin’s Vote Cannot Be
Disputed, and, Therefore, Relator Presents No Substantial Question of Law or
Fact for Judicial Resolution
The validity of Pepin’s vote cannot be challenged retroactively. This is a
consequence of the “de facto officer doctrine.” Under the ordinary application of the
doctrine: “The lawful acts of an officer de facto, so far as the rights of third persons are
concerned, are, if done within the scope and by the apparent authority of office, as valid
and binding as if he were the officer legally elected and qualified for the office and in full
possession of it.” 31
Although Pepin’s eligibility to hold office on January 21 was the subject of some
disagreement, he was physically present at the meeting and was ready to vote. He was,
that is, the “de facto” representative for District 1. “One who claims to be a public
officer while in possession of an office, ostensibly exercising its functions lawfully and
with the acquiescence of the public, is a de facto officer.” 32
The de facto officer doctrine is “of very ancient origin” and is grounded in public
policy. 33 When a sitting officer takes official action, the public should not have to inquire
whether the officer has a right to hold that office or compel the officer to prove their right
holding position was rendered moot by Chief Justice’s order removing him from
assignment); 84 Ops.Cal.Atty.Gen. 206, 207 (2001) (“An action in quo warranto to assert
the claim of the relator to, or the usurpation by the de facto officer of, an office will not
lie where the claim is not continuing”).
31

In re Bunker Hill Urban Renewal Project 1B of Community Redevelopment Agency of
City of Los Angeles (1964) 61 Cal.2d 21, 41-42 (Bunker Hill); see also People ex rel.
Hoffman v. Hecht (1895) 105 Cal. 621, 629-630; 95 Ops.Cal.Atty.Gen. 67, 70, fn. 13
(2012) (acts as planning commissioner valid even though office was forfeited by
assumption of incompatible office); 82 Ops.Cal.Atty.Gen. 219, 223, fn. 3 (1999) (even
“questionable appointees” “are de facto officers, and their actions would be valid and
binding”); 74 Ops.Cal.Atty.Gen. 116, 121 (1991) (board member’s votes valid even after
he assumed incompatible office as county superintendent).

Ensher, Alexander & Barsoom, Inc. v. Ensher (1965) 238 Cal.App.2d 250, 255
(Ensher); see also Oakland Paving Co. v. Donovan (1912) 19 Cal.App. 488, 493-494
(Oakland Paving).
32

33

Oakland Paving, supra, 19 Cal.App. at p. 493.
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to hold the office. Instead, the actions of an apparent—de facto—officer will be deemed
to be valid. 34
The California Supreme Court’s decision in Marine Forests Society v. California
Coastal Commission is instructive. 35 In Marine Forests, the Court considered an
appellate court ruling that the statutory scheme for appointing members to the Coastal
Commission violated the California Constitution’s separation-of-powers provisions.
After the appellate court ruling, the Legislature amended the statute to cure the alleged
constitutional defect. Still, the Marine Forests Society asked the Supreme Court to
decide the validity of the Commission’s previous actions under the prior appointment
scheme, contending that those earlier actions were invalid. The Court, however, saw no
need to decide whether the prior structure was unconstitutional and, therefore, saw no
need “to clarify the status of the numerous actions that were taken by the Commission”
under the prior appointment system. 36 This task was obviated, the Court reasoned, by
application of the de facto officer doctrine: “[E]ven if we were to assume . . . that the
prior version of the statutes violated the separation of powers clause, the past actions of
the Commission could not properly be set aside on that ground at this time.” 37
As Marine Forests illustrates, the de facto officer doctrine serves the public interest
against the “crippling” of legislative or administrative operations by collateral challenges
to an officer’s authority. 38 Allowing such challenges, the Court explained, could “place
in jeopardy many if not all of the actions taken by” the officer over an extended period of
time. 39 “This debilitating effect is avoided if such a challenge is brought in a separate
proceeding that focuses directly on the validity of the officer’s or commission’s status
and in which the requested relief, if ultimately granted by a final judicial decision, would
apply only prospectively.” 40

34

See id. at pp. 493-494.

Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1 (Marine
Forests).
35

36

Id. at p. 53.

37

Ibid.

38

Id. at p. 56.

39

Id. at p. 55, fn. 26.

Id. at p. 56; see also Oakland Paving, supra, 19 Cal.App. at p. 496 (“The very purpose
of the doctrine is to protect the public and third persons where officers are assuming to
act as such without strict legal right and there is an appearance or color of title, but which
is in fact no title”).

40

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In our case, since Pepin was physically present at the meeting and statutorily
empowered to vote for a successor despite his resignation, 41 the residents of District 1
could justifiably rely on his vote as lawfully securing for them a new representative.
Christopher Pikus himself could also rely on Pepin’s vote to provide the necessary
majority for a valid appointment. And, as a consequence, Pikus’s new constituents could
rely on the votes and actions of their new representative as valid exercises of authority.
Indeed, were we not to apply the de facto officer doctrine to the present challenge to
Pepin’s vote, it is possible that every action subsequently taken by his successor Pikus
throughout the ensuing quo warranto litigation would be subject to challenge as well.
Relator’s position thus threatens to “defeat the principal purpose underlying the de facto
officer doctrine.” 42
Soto protests that he had not “acquiesced” in Pepin’s claim of office on January
21, 2025. 43 He raised the issue of Pepin’s eligibility during the public-comment period of
the January 21 meeting; the City Attorney responded with his conclusion that Pepin was
eligible to vote; and the City Attorney advised that declaring a vacancy in the District 1
seat would require a majority vote of the Council. It does not appear that any such vote
was taken or even proposed, and Pepin continued to participate until Pikus was sworn.
But Pepin’s status as a de facto officer does not depend on Relator’s personal
assent. Rather, because the doctrine’s purpose is to serve the public interest, courts look
to the public’s perception. Is the officer “reputed to have official authority to exercise
and perform the duties”? 44 Here, that standard was met. The entire City Council, despite
being informed of Soto’s objection, followed the City Attorney’s advice and acquiesced
in Pepin’s participation in the vote. 45

41

Gov. Code, § 36512, subd. (e)(1).

Marine Forests, supra, 36 Cal.4th at p. 55, fn. 26 (describing the chaos that could
result from failing to apply the de facto officer doctrine).
42

43

Relator’s Reply Memorandum, p. 3.

Oakland Paving, supra, 19 Cal.App. at p. 490, italics added; see also Consumers’ Salt
Co. v. Riggins (1929) 208 Cal. 537, 541 (“A de facto officer is one who has the
reputation and position of the officer he assumes to be, and yet is not entitled to the office
in point of law”).
44

No action was taken by the Council, or even proposed, concerning Pepin’s continued
participation in Council business, and he continued to participate until Pikus was
sworn. (See Jan. 21 mins., supra, at pp. 2-6; City of Poway, City Council Regular
Meeting Video (Jan. 21, 2025), https://tinyurl.com/54jzb67e; see also, e.g., Ensher,
supra, 238 Cal.App.2d at p. 256 [“Acquiescence is shown by the fact that the state did
not proceed against the judge”].)
45

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The Supreme Court has made clear that raising an objection to an office holder,
standing alone, will not suffice to defeat application of the de facto officer doctrine. The
doctrine instead contemplates “that a valid challenge to the officer’s qualifications must
be raised and resolved in a separate proceeding.” 46 In Marine Forests, the Court rejected
arguments that Commission actions under the old system were vulnerable to challenge
even if contemporaneous objections had been raised: “[E]ven with regard to those cases
in which a timely separation of powers challenge to the Commission’s composition has
been raised and that remain pending either before the Commission or the courts, we
conclude that under the ‘de facto officer’ doctrine prior actions of the Commission cannot
be set aside on the ground that the appointment of the commissioners who participated in
the decision may be vulnerable to constitutional challenge.” 47 Marine Forests leaves
little doubt, then, that Soto’s protestations to the City Council are insufficient to defeat
the validity of Pepin’s vote.
Our criteria for deciding whether to grant leave to sue in quo warranto are whether
the application presents a substantial question of law or fact, and whether judicial
resolution of that question would serve the public interest. 48 Here, Relator’s challenge to
the validity of Pepin’s vote is not viable under the de facto officer doctrine. The
California Supreme Court has made clear that California courts adhere to the doctrine. 49
Accordingly, barring extenuating circumstances, we may reasonably expect a lower court
entertaining Relator’s complaint in quo warranto to honor the doctrine as well. 50
3. The Public Interest Is Not Served by Allowing Relator’s Complaint to Proceed
“In the absence of a substantial question of fact or law requiring judicial
resolution, we find there is no public purpose sufficient to warrant an action in quo

46

Marine Forests, supra, 36 Cal.4th at p. 55, italics added.

Id. at p. 54; see id. at p. 55, fn. 26 (describing the chaos that could result if the de facto
officer doctrine could be defeated by the simple raising of an objection at a Commission
proceeding).

47

People ex rel. Internat. Assn. of Firefighters, etc. v. City of Palo Alto (2024) 102
Cal.App.5th 602, 619; Rando, supra, 228 Cal.App.4th at pp. 878-879;
87 Ops.Cal.Atty.Gen., supra, at p. 31.
48

Bunker Hill, supra, 61 Cal.2d at p. 42 (“The de facto doctrine in sustaining official acts
is well established”).

49

See Fair Political Practices Com’n. v. Californians Against Corruption (2003) 109
Cal.App.4th 269, 280, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.
50

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warranto.” 51 Indeed, the very basis for applying the de facto officer doctrine here to
safeguard the official acts of Councilmember Pepin—and derivatively, those of
Councilmember Pikus—is the public’s interest in stability and certainty of legislative and
administrative actions. We are unaware of any California judicial decision, or any
opinion of this office, wherein application of the de facto officer doctrine was declined in
favor of a different weighing of the public interest. 52
Because Councilmember Pepin’s vote for Pikus is conclusive as a matter of law
under the de facto officer doctrine, and because adherence to that doctrine serves the
public interest, we conclude that the application for leave to sue should be DENIED.

107 Ops.Cal.Atty.Gen. 79, 85 (2024); see also 96 Ops.Cal.Atty.Gen. 48, 49 (2013)
(“[W]e are accorded broad discretion in determining whether to grant or deny a quo
warranto application, and the existence of a ‘debatable’ issue or a legal dispute does not
necessarily establish that the issue or dispute requires judicial resolution through the quo
warranto procedure. Instead, the overall public interest is the guiding principle and
paramount consideration in our exercise of discretion,” footnotes omitted, quoted in
Rando, supra, 228 Cal.App.4th at p. 876).
51

We note that the Court in Marine Forests did not squarely foreclose the possibility that
a ground for an action’s invalidity might overcome application of the de facto officer
doctrine, only that “[i]n light of [the doctrine’s] objective,” the constitutional objection
raised about the Commission’s structure was “similar to other claimed defects . . . to
which the de facto officer doctrine has been applied.” (Marine Forests, supra, 36 Cal.4th
at pp. 55-56.) We need not determine whether a California court would ever decline to
apply the de facto officer doctrine due to extraordinary circumstances, as no such
circumstances are presented here.

52

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