In New Livable California v. Association of Bay Area Governments, published January 6, 2021, the First District Court of Appeal, Division 3 reversed dismissal, on demurrer, of a petition for writ of mandate and an action for declaratory and injunctive relief. The plaintiff association alleged that the Association, a joint powers authority, violated the Brown Act by incorrectly recording multiple votes. The Association demurred. As part of the demurrer, the Association sought judicial notice of a transcript from a later Association meeting describing a change in the method of voting. The trial court ruled, based on the transcript, that there was no live controversy between the parties. It further ruled that the plaintiff had failed to demonstrate prejudice. It sustained the demurrer on those grounds.
The appellate court ruled that the trial court had erred in sustaining the demurrer. A court ruling on a demurrer cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. Doing so converts the demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show. The trial court therefore erred in interpreting the statements in the transcript to establish that there was no longer any live controversy. The trial court also erred in sustaining the demurrer for failure to allege prejudice. Prejudice is not an element of the Brown Act claim the plaintiff was asserting. The plaintiff only had to set forth factual allegations showing a violation of the statute at issue.
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