Government Liability Update

Alleged Confirmation of Cancellation of Business License in Closed Session Did Not Arise Out of Protected Activity for Anti-SLAPP Purposes

In Mary's Kitchen v. City of Orange, published October 25, 2023, the Fourth District Court of Appeal, Division 3 affirmed a trial court decision denying the defendant city's special motion to strike under anti-SLAPP law.  The plaintiff provides homeless services in the defendant city.  The city manager terminated the plaintiff's business license, citing safety concerns.  At a city council meeting, the agenda for which did not mention the plaintiff, the city council held a closed session meeting to discuss potential unspecified litigation.  After the closed session, during the regular session portion of the meeting, the city attorney reported that the city council had unanimously confirmed the actions of the city manager and staff in terminating the license. The minutes of the council meeting stated that the termination was "unanimously confirmed." Representatives for the plaintiff delivered a letter to the city demanding the city cure and correct alleged Brown Act violations that prevented the plaintiff and public from being present during and participating in the cancellation of the license.  The city took the position that it had not taken any action during the closed session.  The plaintiff filed a complaint and petition for writ of mandate, alleging Brown Act violations and seeking declaratory and injunctive relief.  The city filed an anti-SLAPP motion, with a declaration from the city attorney, stating that, in the face of the threat of litigation regarding the city manager's termination of the license, the city council did not take any action; there was no vote, no ratification, no decision to ratify the termination or to terminate the license, and did not make any decision to overturn the termination.  The city attorney declared that the city council unanimously confirmed the city manager's and staff's actions by doing nothing to reverse the city manager's decision.  The trial court concluded that the complaint did not arise from protected activity as defined in Code of Civil Procedure section 425.16.

The appellate court agreed.  The issue is whether the complaint arises from an unprotected action by the city, or protected speech by the city.  The appellate court interpreted the complaint as arising from unprotected action--the unanimous confirmation--and the fact that the agenda had not given proper notice of that action.  It was not based on the conversation between the city council and the city attorney in anticipation of litigation.  The plaintiff's complaint reasonably interpreted the words "unanimously confirmed" in the meeting minutes as the city council taking action, unanimously ratifying the city manager's decision.  That the city attorney provided a contrary declaration is not dispositive on the anti-SLAPP motion; the court accepts as true the evidence favorable to the plaintiff and evaluate the defendant's evidence only to determine if it has defeated the plaintiff's evidence as a matter of law.  A trier of fact could conclude the city attorney's testimony is self-serving and contradicts the meeting minutes.  Assuming that the action of ratifying the termination of the license occurred, it was not conduct in furtherance of free speech; it is ordinary business.  The complaint therefore does not arise from protected activity.

Laches Barred Brown Act Claim Where Petitioners Challenged First Step in Dissolution Process, then Waited until after Special Election to Pursue Challenge

In Julian Volunteer Fire Company Association v. Julian-Cuyamaca Fire Protection District (County of San Diego), published March 30, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment against the petitioner association in a Brown Act lawsuit.  The association provided fire prevention and emergency services through a local fire district.  The district voted to seek to dissolve and be replaced by the county fire authority.  This triggered a mandatory review process by the Local Agency Formation Commission.  Two weeks after the district's board approved the dissolution resolution, the association sued the district, alleging the resolution approval violated the Brown Act.  The association sought a writ of mandate ordering the district to vacate the resolution.  While the lawsuit was pending, the county and commission processed the resolution, including holding public hearings and triggering a special election.  The district initially opposed the association's lawsuit.  But after a board membership change, the board disagreed with the earlier dissolution resolution.  It therefore no longer contested the lawsuit.  The association waited to prosecute its lawsuit until after the special election results in favor of dissolution.  The association then moved ex parte to enter judgment on the Brown Act claims.  The district told the court it did not oppose the motion.  The court entered judgment for the association and issued the writ.  The association, relying on this judgment, then filed suit seeking to preclude the commission from certifying the election result favoring dissolution.  The county and commission then intervened in the Brown Act lawsuit as necessary or indispensable parties.  They successfully moved to vacate the judgment and writ.  The trial court stated it was not previously aware of these parties' direct interests in the litigation.  The court then granted the intervenors judgment on the pleadings on a number of grounds, including laches.

The court of appeal agreed that laches barred the lawsuit.  Laches requires the defendant to show unreasonable delay and either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.  Even if a plaintiff timely files a complaint, laches can bar relief if the plaintiff unreasonably delays in bringing the litigation to completion.  Here, the association did not seek a ruling on the merits for about one year, while the dissolution process proceeded.  The association then rushed to the courthouse, without opposition from the sole opposing party, and obtained a judgment it sought to use against the interested entities.  Nothing in the record shows justification for the delay; and the association could have obtained a ruling on its claims much earlier had it sought to do so.  The association's deliberate decision to wait and see whether the special election or other proceedings would have mooted the Brown Act claim underscores the unreasonableness of the association's actions.  An action to rescind a public agency’s resolution for violating the Brown Act is subject to an unusually short limitations period because it is vital that the validity of an agency’s actions be resolved expeditiously.  A party cannot justify waiting to resolve Brown Act allegations pertaining to an initial agency decision merely because other avenues exist for achieving similar results.  The prejudice is obvious from the record:  the association caused the county and commission to incur substantial costs to comply with the statutorily required proceedings while it waited to challenge the initiating decision.

Trial Court Improperly Based Demurrer of Writ Petition on Judicial Notice of Interpretation of Transcript

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.

Brown Act Requires That Litigation Threat That Prompts Closed Session of City Council Meeting Must Be Disclosed in Agenda Before Meeting: But Failure to Do So Was Not Prejudicial

In Fowler v. City of Lafayette, published February 10, 2020, the First District Court of Appeal, Division 4 affirmed judgment in favor of the defendant city in a lawsuit that contended that a decision affirming construction should be nullified due to an alleged violation of the Ralph M. Brown open-meetings act.  The defendant city's council held multiple open meetings to address an appeal from the property owner's neighbors challenging the planning commission's decision to allow the construction.  During the appeal process, the lawyer for the property owner threatened litigation if the city denied the application for construction. The litigation threat was noted in the "notes" field in the city's application database for the project.  The application database was available for public viewing at the city's planning counter,  provided a member of the public asked a planner for permission.  The threats were not mentioned in the packet of information provided to the public before the council meetings, including the agenda.  The council ultimately denied the appeal.  The trial court ruled that the city's handling of the litigation threat and the closed meetings complied with the Brown Act.

The court of appeal disagreed that the city complied.  Government Code section 54956.9, part of the Brown Act, permits agencies to confer with legal counsel in closed session regarding pending litigation, including where a threat of litigation is made outside of an open meeting on a specific matter within the responsibility of the legislative body.  But the statute also requires that the employee of the agency receiving knowledge of the threat makes a record of the statement before the meeting, and the record is available for public inspection before the meeting.  The court rejected the argument that including the threat in the application database met this requirement.  Instead, when a litigation threat that prompts a closed-session meeting, the agency must include the record of the threat in the agenda packet made available upon request before a meeting.  

The court of appeal further determined that the city's violation of this rule did not require nullification of the city's decision.  Because the denial of the application was based on proceedings in open session, and because the city council held extensive proceedings in open session on the matter, the error concerning the closed sessions did not affect the outcome, or prevent the neighbors from pursuing their appeal.

Contention That City Council Violated Brown Act Is Moot Where Council Unequivocally States It Will Cease the Challenged Conduct

In Transparentgov Novato v. City of Novato, published April 10, 2019, the First District Court of Appeal, Division 1 affirmed an order denying a petition for writ of mandate and for declaratory relief against the defendant city.  At a city council meeting, the councilmembers discussed putting discussion of a public works project on a future agenda (which the council rules permitted) and forming a subcommittee to study another project.  The plaintiff sent the city a cease-and-desist letter alleging that the city council violated the Brown Act by discussing substantive portions of the project on which the subcommittee was formed without giving proper notice.  The city responded in writing that in the future it would not establish subcommittees at a meeting without first placing the item on the posted agenda.  It later passed a resolution barring members from orally requesting that an item be placed on a future agenda.  The plaintiff then filed the action asking the court to declare that the discussion of the subjects violated the Brown Act, and seeking a writ petition directing the council to address only items properly on the posted agenda.

The appellate court ruled that the relief requested was moot.  Under the statutes governing relief for violations of the Brown Act, the propriety of declaratory relief, and writ relief, relief is properly denied if the respondent has stated that it has ceased the challenged action and the evidence indicates it will not undertake the action in the future.

The "Committee Exception" to the Brown Act Does Not Apply to Special Meetings

In Preven v. City of Los Angeles, published March 4, 2019, the Second District Court of Appeal, Division 1 revsrsed a trial court order dismissing after demurrer a writ petition and declaratory relief action brought to enforce the Brown Act.  During the public comment portion of an open committee meeting concerning a proposed real estate development near the petitioner's residence, the petitioner made a comment.  The committee, which consisted of five members of the fifteen-member city council, voted to make a report and recommendation to the full council.  The next day, a special meeting of the city council was held to decide whether to approve the committee's recommendation on the development.  The petitioner attended the meeting, and requested the opportunity to comment on the development.  His request was denied on the ground that he had the opportunity to comment on the agenda item at the committee meeting.  The trial court sustained the city's demurrer on the ground that the "committee exception" applies to both regular and special meetings.  The "committee exception" provides that a legislative body does not need to provide an opportunity for public comment at a regular meeting on any item that has already been considered by a committee made up exclusively of members of the body wherein all interested members of the public were permitted to comment on the item before or during the committee's consideration of the item.

The appellate court ruled that the trial court had misinterpreted the Brown Act.  Government Code section 54954.3(a)'s plain language applies the committee exception to regular meetings, and not special meetings.  The statute requires public comment on any item described in the notice for the meeting before or during consideration of the item.  The city argued that the petitioner was permitted to address the item at the committee meeting, which was "before" the full council considered the item. The appellate court reviewed the legislative history of the statute, and concluded that the "before" term concerns timing of comments within a particular meeting.  It does not restrict comments based on a prior distinct meeting.