This document is a court ruling denying a petition for a writ of mandate challenging certain statements made in a ballot argument against Measure O. The court found that the challenged statements expressed opinions and predictions about future events, which are inherently unverifiable. The petitioner did not provide clear and convincing evidence that the statements were objectively false. The court will not intervene to remove statements from a ballot solely on the basis that one side believes them to be unpersuasive.

1. Raymond Dussault v Elaine Doerfling
BS152770
December 19 2014
Petition for a Writ of Mandate Moving Party Petitioner Raymond Dussault
The petition is denied
The Court reviews municipal ballot measures pursuant to Election Code 9295b Section
9295b provides that
1 During the 10calendardaypublic examination period provided by this
section any voter of the jurisdiction in which the election is being held or the
elections official himself or herself may seek a writ of mandate or an
injunction requiring any or all ofthe materials to be amended or deleted The
writ of mandate or injunction request shall be filed no later than the end of the
10calendardaypublic examination period
2 A peremptory writ of mandate or an injunction shall be issued only upon clear
and convincing proof that the material in question is false misleading or
inconsistent with the requirements of this chapter and that issuance of the writ
or injunction will not substantially interfere with the printing or distribution of
official election materials as provided by law emphasis added
Petitions such as this should not be used to impede a political opponent from expressing its
views The right to seek deletion of false and misleading ballot arguments should not be used
as a
weapon against differing as
opposed to
misleading opinions Hull v Rossi 1993 13
CalApp4th 1763 1769 Itis not the province of the courts to bluepencil statements merely
on the basis that they do not believe them to be persuasive or cogent Huntington Beach Ciry
Council v Superior Court ofOrange County Blackford 2002 94 Ca1App4th 1417 1423
See also Yes on 25 Citizens For An OnTime Budget v Superior Court ofSacamento Counry
Brown 2010 189 Ca1App4th 1445 1452 affording drafters considerable latitude
Huntington Beach City Council provides helpful insight into the meaning ofthe terms false or
misleading
In determining whether statements are false or misleading courts look to whether
the challenged statement is subject to verifiability as distinct from typical
hyperbole and opinionated comments common to
political debate An
outright falsehood or a statement that is objectively untrue may be stricken
We need only add that context may show that a statement that in one sense
can be said to be literally true can still be materially misleading hence the
Legislature did not indulge in redundancy when it used both words On the other
hand the standard as defined by the Legislature is necessarily a high one Courts
may intervene only if clear and convincing evidence shows the statement to be
false or misleading 94 Ca1App4that 1432 citations omitted
1

2. Further developing this concept courts have held that predictive statements ie predictions of
what will result from the passage or failed passage of a measure are statements about the future
and therefore inherently unverifiable Mandicino v Maggard 1989 210 Ca1App3d 1413
14171419 Statements in ballot arguments are generally known by the public to be opinions of
the drafters Chavez v Citizensfor a Fair Farm Labor Law 1978 84 CalApp3d 77 82 see
also Yes on 25 189 CalApp4that 1454 a difference of opinion does not rise to the level of
clear and convincing proofthat the challenged language in the ballot title and summary and the
ballot label is misleading
Petitioner challenges five statements in the ballot argument against Measure O as false and
misleading Petitioner must present clear and convincing evidence of his entitlement to relie Id
In order to determine that ballot material is false the Court looks for verifiable objective
untruth Huntington Beach Ciry Council supra 94 CalApp4that 1432 Misleading statements
are those that are literally true but also operate to create a false impression in the minds ofthe
public Id noting that misleading is not a redundancy but addresses a different category of
statements from those that are false However opinions and predictions are generally not
verifiably false or misleading and therefore not subject to challenge on those grounds
Mandicino supra 210 Ca1App3d at 14171419 Chavez supra 84 Ca1App3d at 82
Oildrilling will be unsafe Petitioner challenges this assertion on the basis that it is false or
misleading to argue that oil drilling is unsafe because the final environmental impact reports
EIR section on project risks does not include a risk that has 100 chance of occurring Petn
Exh E and because the probabilities of accidents set forth in the quantitative risk assessment
QRA do not support an argument that anything is unsafe id Exh L Real Partys
statement is a predictive statement ie an opinion that the prospective oil drilling contemplated
by Measure O will prove to be unsafe when and if it becomes operational in the future Similar
to the statements discussed in the Mandicino opinion Real Partys opinions and predictions are
not verifiably false or misleading and therefore not subject to challenge on those grounds
Mandicino supra 210 CalApp3d at 14171419 Chavez supra 84 CalApp3d at 82
Petitionerscontention that the word unsafe implies that an injurious event necessarily occurs
has no merit Unsafe means notenjoying safety exposed to danger or risk Petitioners
contention that the word unsafe is false or misleading because the EIR does not indicate that
any dangerous or deleterious event is 100 likely to occur places a threshold on the requisite
level of risk that does not comport with any reasonable or common sense definition of unsafe
Similarly Petitioners unelaborated reference to QRA does not establish that the project is either
safe or unsafe because there is no generally accepted threshold of risk where something
transitions from one category to the other Finally Petitioners argument that the project cannot
be unsafe because it will be subject to extensive regulation to ensure safety does not establish
that Real Partys statement is false To the contrary it merely establishes that an underlying
unsafe condition exists Real Party obviously believes that the regulatory scheme will be
insufficient to ameliorate this underlying condition Again this is an opinion that is not properly
challenged by a writ petition Hull supra 13 CalApp4th at 1769
2

3. Finally as Respondent notes there is substantial evidence in the EIR that would support the
conclusion that the project is unsafe including statements that operation and drilling activities
would generate offsite risks that exceed the thresholds and that these risks are significant and
unavoidable Doerfling Decl Exh 3 Such statements support Real Partysposition that the
project will be unsafe in his speculative opinion To the dubious extent that categories such as
false and misleading can be applied to an opinion regarding a future state of affairs the falsity or
misleading nature of Real Partysopinion in this case could not be proven by clear and
convincing evidence Elections Code 9295b2 Yes on 25 supra 189 Ca1App4th at 1454
No writ will issue with respect to the first challenged phrase
Oil drilling will be unhealthy Petitioner argues that it is false or misleading to argue that oil
drilling is unhealthy because the EIR includes sections on the projectseffects on air quality
Petn Exhs G H Petitioner also refers to a health impact assessment in the EIR which
indicates that after certain mitigation and adoption of other recommendations the drafters do not
believe that the project will have a substantial effect on community health in the Respondent
City id Exh I Again Real Partys statement is a predictive opinion regarding the effects on
the community at some future date when and if the project commences operation Real Partys
opinions and predictions are not verifiably false or misleading and therefore not subject to
challenge as such Mandicino 210 CalApp3d at 14171419 Chavez 84 Ca1App3d at 82
Petitionerschallenge to Real Partys opinion that the project will be unhealthy reveals another
flaw in Petitionerschallenge namely his reliance on the EIR to establish the underlying truth
to which he proposes to juxtapose Real Partysalleged falsehoods An EIR is an informational
document required by the California Environmental Quality Act when a project may have
significant environmental effects in order to permit avoidance or mitigation of those effects when
feasible Public Resource Code 210021 An EIR does not certify that a project is safe or
healthy it merely provides information As Respondent observes these standards are not
factual absolutes for the purposes of voter evaluation Petitioner cites portions of the EIR to
support his own opinion that the project is safe or healthy or otherwise nonthreatening and
nondisruptive The petition essentially seeks to have the Court decide which policy position
should control before the voters have an opportunity to do so As explained above this is an
inappropriate use of an Elections Code petition challenging ballot language Hull 13
CalApp4th at 1769 Yes on 25 supra 189 Ca1App4th at 1454
Additionally as Respondent notes the EIRshealth impact assessment finds that the project
would result in asignificant and unavoidable impact on the community in the form of odor
releases owing to the proximity of the project to homes and businesses Doerfling Exhs 3 4
The health impact assessment also allows that odor exposure produces headaches nasal
congestion eye nose and throat irritation and other respiratory illnesslike symptoms id This
supports Real Partysopinion that the project would prove to be unhealthy Yes on 25 189
CalApp4th at 1454
No writ will issue with respect to the second challenged phrase
3

4. Miles ofdangerous undergroundpipelines that will threaten our quality oflife and our health
The third statement Petitioner challenges also substantially consists of opinions and predictive
statements Petitioner contends that the health impact assessment reveals no negative impact on
health or social cohesion even arguing that the project has potential positive effects based on
enhanced recreation greenspace and educational funding Petn Exh I Petitioner also asserts
that the EIR concludes that transportation by pipeline is one of the safest forms of transportation
for oil or natural gas apparently in the belief that this forecloses Real Party from opining that
pipeline transportation would be dangerous ic Exh M Real Partys assertions that the
pipes will be dangerous and that they will threaten quality of life and health are again
Real Partys opinions They are expressly political argument that cannot be fairly categorized as
false or misleading Chavez 84 CalApp3d at 82
Additionally the EIR does indicate that a pipeline rupture or other project accident would have
significant health and safety impacts including lasting groundwater contamination issues
Doerfling Exh 3 In particular the EIR notes that seismic activity could threaten pipeline
integrity id The report indicates that the threat of these impacts is unavoidable id The EIR
and the health assessment also note potential qualityoflife damage from light pollution id
and property value fluctuations id Exh 4 This supports Real Partys opinion that the project
will threaten the health and quality of life in the Hermosa Beach community Yes on 25 189
CalApp4th at 1454
No writ will issue with respect to the third challenged phrase
Operations that will bring unhealthy odors noise and light pollution The challenge to the
fourth statement attempts to use factual observations in the EIRs findings to foreclose Real
Partys expression of contrary political opinion Petn Exhs J K Again Real Partys
statements are opinions concerning future events that are neither false nar misleading
Mandicino 210 CalApp3d at 14171419 Chavez 84 Ca1App3d at 82 Additionally as noted
by Respondent the health impact assessment does indicate that the project will result in
increased noise levels particularly during the projects construction Doerfling Exh 3 The
health impact assessment also includes a description of the unavoidable odor release from the
facility and further indicates that these odors could have deleterious health effects on some
members of the community id Finally the EIR indicates the significant and unavoidable
fact that the project will substantially increase the ambient light in the surrounding community
owing to the lighted drilling rig and that the project could potentially create skyglow or a
corona id Exh 4 These all support Real Partys opinion that the project will result in
unhealthy odors and noise and light pollution Yes on 2 189 Ca1App4that 1454
No writ will issue with respect to the fourth challenged phrase
The official Environmental Impact Report identifies nine significant unavoidable impacts
including air pollution that will exceed air qualiry thresholds The airpollutants and dozens of
toxic chemicals used during the projects construction and operation have been linked to
increased heart attacks asthma and cancer These health impacts will fall heaviest on children
and the elderly Petitioner challenges the fifth statement on the basis that it is false and
misleading particularly the statements regarding air pollution that will exceed air quality
4

5. i
standards and the connection of these air pollutants to heart attacks asthma and cancer
These are both fact statements the first concerning what was found in the EIR and the second
concerning the existence of a link between the air pollutants and the enumerated health
conditions Petitioner asserts that the EIR does not indicate that either fact is true Petn Exhs
G H However the EIR indicates that the odor releases from the projectsproposed facility
would indeed fall under the category of air pollution and that the odor releases would exceed
the nuisance threshold set by the South Coast Air Quality Management DistrictsRule 402
Palmer Decl Exh D Therefore the statement that the EIR identifies air pollution that will
exceed air quality thresholds is not false or misleading
The same result applies to Real Partys contention that air pollutants might lead to increased
cancer risks as the EIR indicates that the project and the chemicals to be used in construction
would yield an increased cancer risk although less than the 10 cancers per million threshold
listed in the EIR Palmer Exh E As Real Party observes he 10 cancers per million threshold
while acceptable in the EIR might be unacceptable to the voting public Ultimately Petitioner
and Real Party advocate different positions as to the acceptability of the facilitys impacts on the
community Each opinion is supported by facts The resolution of these opinions is the province
of the voters and not the Court Hull 13 CalApp4th at 1769 Therefore no clear or convincing
evidence supports the proposition that the specified statements are false or misleading Yes on 25
189 CalApp4th at 1454
No writ will issue with respect to the fifth challenged phrase
For the foregoing reasons Petitioner has not demonstrated that Real Partysarguments in
opposition to Measure O are false or misleading The disagreement between the parties is one
properly resolved by the electorate not the Court Therefore the petition is denied
5