Government Liability Update

Time to Appeal Ruling on Administrative Mandamus Petition Runs from Entry of or Notice of Judgment

In Meinhardt v. City of Sunnyvale, published July 29, 2024, the California Supreme Court reversed the judgment of a lower court of appeal dismissing an appeal as untimely.  The petitioner police officer challenged his suspension by petitioning the trial court for a writ of administrative mandamus.  After briefing and a hearing, the trial court entered an order denying the petition.  The order was served on the parties the same day it was issued.  Eight days later, the respondent served the petitioner with a Judicia Council form "Notice of Entry of Judgment or Order" along with a file-stamped copy of the order denying the writ.  Weeks later, the parties signed and submitted to the trial court a document entitled "judgment."  The court signed the document, and the respondent served a Notice of Entry of Judgment or Order concerning the judgment.  The petitioner filed a notice of appeal within 60 days of the second Notice of Entry of Judgment or Order, but more than 60 days after the first Notice of Entry.  The appellate court dismissed the appeal as untimely.  Following one line of a split of authority, the appellate court ruled that the time to appeal a ruling in an administrative mandate proceeding ran from the date the court entered an order sufficiently final to constitute a judgment, even if the court later entered a judgment.

The Supreme Court held this was error.  The right to appeal in California Courts is entirely statutory and controlled by the legislature.  Both general statutes governing appealability and the statutes governing writs of administrative mandate construe the judgment as the appealable ruling, rather than an earlier order.  While some court decisions have saved pre-judgment appeals by construing an order as sufficiently final to appeal, that power does not extend to dismissing appeals that were timely taken from the judgment.  Further, the time to appeal should be governed by bright-line rules, since the timeliness of an appeal is jurisdictional.  The court therefore adopted a bright-line rule that the time to appeal in administrative mandate proceedings starts to run with entry of “judgment” or service of notice of entry of “judgment,” rather than with the filing of, or service of notice of the filing of, an “order,” minute order, or other ruling. 

Challenge to One-Time Benefit Program Is Moot after Money Spent

In Cerletti v. Newsom, published November 17, 2021, the Second District Court of Appeal, Division 5 dismissed an appeal from denial of a temporary restraining order against government spending in connection with a one-time benefit program as moot.  In April 2020, Governor Newsom established a $75 million Disaster Relief Fund to support undocumented Californians impacted by COVID-19.  The plaintiffs, as taxpayers, sued to challenge the project as an unlawful expenditure of funds.  In May 2020, they applied ex parte for a temporary restraining order and order to show cause re a preliminary injunction, seeking to halt distribution of benefits under the project.  The court denied the application on grounds including that prejudgment injunctive relief is not ordinarily available to remedy an alleged harm based on taxpayer standing.  The plaintiffs petitioned the appellate court for writ relief.  The appellate court denied the petition on grounds including the availability of an appeal.  The plaintiffs appealed the denial of the TRO.  They petitioned for a writ of supersedeas staying the order denying the TRO and the project itself.  The appellate court denied the petition, citing the rule that taxpayer harm is ordinarily insufficient to establish irreparable harm warranting preliminary injunctive relief.  While the appeal was briefed, the project money was all spent.

The appellate court ruled that because the money was spent, the appeal was moot.  While the court could resolve the case anyway if it raised an important issue likely to recur, but that evades timely appellate review, the court ruled that this was not such a case.  This was an emergency project to provide one-time payments during an extraordinary pandemic, which caused a state of emergency and a temporary pause in the operation of the Legislature.  There was nothing suggesting it was likely to recur.  

Under California Public Records Act, Public Interest in Protecting Contact Tracing Outweighs Public Interest in Disclosing Locations of COVID-19 Outbreaks

In Voice of San Diego v. Superior Court (County of San Diego), published July 16, 2021, the Fourth District Court of Appeal, Division 1 declined to issue a writ of mandate disturbing a trial court's decision on a California Public Records Act petition.  The petitioner news media organizations made a CPRA request for records showing the locations of all businesses or other entities where COVID-19 community outbreaks have occurred from March 1, 2020 through July 15, 2020.  The county responded by producing a spreadsheet of outbreaks redacting the names and addresses for the locations of outbreaks.  The county provided an explanation that the public interest in protecting a candid exchange of information between those linked to the outbreak locations and the county Public Health Officer's disease investigators, to permit contact tracing.  The explanation also stated that publicly releasing specific locations after the outbreak had taken place would not protect the public.  The county asserted that the information was exempt from the public under the CPRA's catch-all provision, Government Code section 6255(a), which permits nondisclosure where the public interest served by not disclosing the record outweighs the public interest in disclosure.  The county submitted the declaration of the county's public health officer in support.  The trial court denied the writ petition seeking to enforce the CPRA request.

The appellate court agreed that the catch-all exemption applied.  Although the court could reject the health officer's expert opinion if it were unduly speculative or lacked a proper basis.  But her declaration was specific and based on her expertise and extensive experience.  The petitioners did not submit any contrary evidence.  That the county had released location information for outbreaks of other diseases, and COVID-19 information for a university, did not undermine the officer's opinion.  The county provided valid explanations that when outbreaks of conditions such as hepatitis A or tuberculosis, the public could take specific action in response to protect themselves and avoid further spread.  By contrast, the county established, when the public visits a location where a COVID-19 outbreak had occured, the public does not need to take any additional protective measures because community transmission of COVID-19 is widespread.  The county showed that the public interest in promoting contact tracing by keeping information about locations confidential outweighs the public interest in knowing the locations of outbreaks to protect themselves, and determining the effectiveness of government efforts to combat COVID-19 by knowing specific locations of outbreaks.

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.

Local Government Health Order Complies with Substantive Due Process if It Has a Rational Basis

In County of Los Angeles Department of Public Health v. Superior Court (California Restaurant Assoc.), published March 1, 2021, the Second District Court of Appeal, Division 4 issued a peremptory writ of mandate directing a trial court to vacate an order.  The petitioner county issued an order barring outdoor dining during a surge in the COVID-19 Pandemic.  An association of restaurants and an individual restaurant sued the county, seeking writ relief, declaratory and injunctive relief and relief for violation of due process, equal protection, and infringement of the right to liberty under the California Constitution. In the trial court, both sides submitted expert evidence for and against the restriction's relationship to preventing transmission of the virus. The trial court consolidated the actions, and issued an order enjoining the county from enforcing or enacting any county ban on outdoor dining, unless and until its public health officers conduct a risk-benefit analysis and articulate it for the public.  The county petitioned the court of appeal for writ relief.  The appellate court stayed the trial court's preliminary injunction order and issued an order to show cause.  While the writ was pending, the governor lifted a Regional Stay at Home Order that banned outdoor dining, and the county issued an order permitting outdoor dining with significant restrictions.

The appellate court determined the writ proceeding was not moot, because the county may reimpose the prohibition on outdoor dining if the region faces another surge.  The appellate court further determined that the trial court erred by failing to apply the proper deferential standard for evaluating state and local agencies' responses to public health emergencies.  The 1905 Jacobsen v. Massachusetts U.S. Supreme Court decision held that government action that purports to protect the public health will be upheld, unless it has no real or substantial relation to the object of public health, or beyond all question is a plain, palpable invasion of rights secured by the fundamental law.  The court analyzed recent decisions from the U.S. Supreme Court analyzing Pandemic restrictions on church services, and determined that the Jacobsen holding is still the rule as to secular businesses.  Therefore, the rational-relationship test for substantial due process claims applies; as does the rule of deference to administrative action, limiting that review to determining whether the agency's action has been arbitrary, capricious, or entirely lacking in evidentiary support.  The court cannot reweigh the evidence, or substitute its own judgment for the agency's.  Both the real parties' substantive due process claims and their contention that the county exceeded its emergency powers under Health & Safety Code section 101040 are analyzed under this rational relation test.  The trial court found the county's evidence provided a rational basis for the challenged order, but nevertheless adopted the opinion of the real parties' expert that a health order required a risk-benefit analysis.  Mandating such a nebulous requirement, the appellate court ruled, is inconsistent with the determination of whether the agency's actions were arbitrary, capricious, or entirely lacking in evidence.  Requiring public agencies to undertake such studies would take time and resources that may not be available when swift government action might be taking in response to surging infection, hospitalization, and death.  Because the real parties failed to meet their burden of showing the county's order was arbitrary, capricious, or without rational basis, they cannot ultimately succeed on the merits.  The trial court therefore erred in granting them injunctive relief.

The appellate court also rejected the individual restaurant's argument that the order violated freedom of assembly.  Even assuming the restaurant has a freedom of assembly, the county order does not regulate assembly based on expressive conduct, and is based on a legitimate and substantial government interest.  Further, it leaves open alternative channels for assembling, such as video conferencing and socially-distanced in-person gatherings.

Plaintiffs Failed to Raise Viable Challenge to City's Decision to Remove Historical Sculpture

In Schimd v. City and County of San Francisco, published February 1, 2021, the First District Court of Appeal, Division 4 affirmed dismissal after demurrer of a lawsuit brought by two San Francisco taxpayers challenging the administrative decision of the San Francisco Board of Appeals authorizing the removal of a bronze sculpture that was originally part of a San Francisco Civic Center monument to California’s Pioneer Period. The San Francisco Historic Preservation Commission granted a Certificate of Appropriateness to take down the sculpture and place it in storage, based on significant adverse public reaction to the sculpture. The plaintiffs asserted that the removal violated the Bane Act, and sought administrative mandamus and ordinary mandamus writ relief, among other claims. The trial court sustained the defendants’ demurrer without leave to amend. The appellate court agreed that the plaintiffs failed to state a cause of action. The plaintiffs failed to state a Bane Act claim, because they did not allege any threats, intimidation, or coercion violating rights amenable to Bane Act enforcement. They failed to state a cause of action for administrative mandamus, because they failed to allege anything to support conclusory allegations that the Board of Appeals acted in excess of its authority or abused its discretion. The administrative record shows that the Board acted within its authority as provided by law, and that its conclusions are supported by substantial evidence. The court rejected the argument that the removal violated the California Arts Preservation Act. Even assuming the Act was not preempted by the federal Visual Artists Rights Act of 1991, only an artist or an artist’s heirs has standing to enforce rights under the Act. The complaint failed to show a violation of Federal Historic Preservation Standards, because the decision acknowledged those standards and the complaint did not plead nonconclusory facts showing their violation. The complaint failed to show that the removal was a public nuisance. The complaint failed to show a violation of the California Environmental Quality Act, because the plaintiffs failed to exhaust their administrative remedies under CEQA. The petition for writ of ordinary mandamus alleged that a condition placed on the Certificate of Approval—placement of a plaque before removal—was not carried out. Ordinary mandamus requires identification of a ministerial act. The complaint did not identify a ministerial act, since the Board had discretion to remove the sculpture. Drafting language for the plaque is not a ministerial act, and must precede the plaque’s installation. Since the sculpture was removed before the act was filed, the question of whether the sculpture may be removed before the plaque is installed is moot.

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.

Trial Court Erred in Treating Suit Challenging Water Rates as Administrative Mandamus Petition and Excluding Expert Declaration

In Malott v. Summerland Sanitary District, published October 19, 2020, the Second District Court of Appeal, Division 6 reversed a trial court judgment denying a petition for writ of administrative mandamus.  The defendant district, which provides wastewater collection, noticed a public hearing on a service rate increase.  The plaintiff, an apartment house owner, did not attend the hearing.  The rate increase was approved at the hearing.  The plaintiff then filed the administrative mandamus writ petition challenging the rate increase.  She alleged she was excused from exhausting the administrative remedy of the hearing because it was an inadequate remedy.  She challenged the district's method for calculating rates as violating the state constitution.  She filed a motion for judgment that included an expert declaration supporting her contentions.  The trial court granted a motion to strike the declaration on the ground that it had not been filed at the public hearing, and therefore was improper extra-record evidence.  The court upheld the rate as valid.

The court of appeal ruled that the trial court had erred both in striking the declaration and in denying the petition.  Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372 ruled that the public hearing required by article XIIID, section 6 of the California Constitution, added by Proposition 218, is an inadequate administrative remedy for challenging the method of calculating service fee allocation among parcels, and therefore does not have to be exhausted before the method is challenged in court.  Plantier involved a declaratory relief action.  The plaintiff's election to petition for administrative mandamus instead of filing a declaratory relief action does not prevent the plaintiff from challenging the rate calculation method.  The formality that the plaintiff styled her lawsuit as an administrative mandamus action does not prevent Plantier from applying.  The distinction between declaratory relief and mandamus is not always clear.  Where a plaintiff mistakenly files an administrative mandamus petition instead of an ordinary mandamus petition or declaratory relief cause of action, relief will not be denied where the allegations of
the petition are sufficient to support the other two causes of action.  Because the petition asked for relief that would be appropriate in a declaratory relief action, the petition should be judged on the substance of its allegations rather than its label.  Although administrative mandamus petitions are generally limited to the evidence in the administrative record, to confine petitioners to the record of an inadequate administrative remedy would improperly elevate an exclusionary rule over the right to have a forum to litigate.  Further, even in administrative mandamus actions, courts have the discretion to admit extra-record evidence if the criteria are met.  Here, the expert declaration was relevant evidence supporting the challenge the plaintiff was entitled to make.  The appellate court remanded the action to the trial court to permit both parties to present evidence before the court makes its decision.

Corporation Fails to File Damages Claim within Government Claims Act Statute of Limitations Where It Was Suspended when It Filed and Was Restored after Limitations Ran

In Granny Purps, Inc. v. County of Santa Cruz, published August 5, 2020, the Sixth District Court of Appeal affirmed in part and reversed in part a trial court's dismissal of a lawsuit after an order sustaining a demurrer.  The county's ordinance limited cultivation of medical marijuana to 99 plants.  The plaintiff corporation's marijuana dispensary was growing thousands of marijuana plants.  The county seized 2,200 marijuana plants from the plaintiff.  The plaintiff presented two claims for damages.  After the claims were denied, the plaintiff sued the county and two sheriff's deputies, asserting causes of action for conversion, trespass, and inverse condemnation.  The complaint sought money damages, and an order requiring return of the plants by way of a writ of mandate, injunctive relief, and a cause of action for specific recovery of property.  At the time the plaintiff filed the complaint, the Secretary of State had suspended the plaintiff's corporate status for failure to pay taxes.  The plaintiff paid its taxes and revived its corporate status after the Government Claims Act's six-month limitations period running from denial of the claims had expired. The court sustained the county's demurrer without leave to amend.

The appellate court affirmed dismissal of the causes of action in the complaint seeking damages.  Those causes of action (except inverse condemnation) were barred by the six-month statute of limitations.  A suspended corporation loses the right to prosecute a lawsuit.  Revival of the corporation after the time to commence an action has expired does not retroactively validate a lawsuit filed during corporate suspension.  The statute of limitations did not apply to the equity causes of action in the complaint, however.  A claim seeking return of property withheld by the government is not subject to the Government Claims Act, even though the property may be dissipated and the defendant may be compelled to pay damages in lieu of returning the property.

The appellate court also affirmed dismissal as to the inverse condemnation cause of action.  The Government Claims Act does not apply to inverse condemnation.  But the allegations were insufficient to state a claim.  Seizure of property in connection with enforcing criminal laws is not inverse condemnation.

Finally, the court reversed the dismissal of the causes of action for specific return of property, mandamus, and declaratory relief seeking return of the plants.  A plaintiff cannot sue for return of illegal property.  But state law at the time permitted cultivation and possession of medical marijuana.  The county's valid property regulation limiting the number of marijuana plants that could be grown did not render the plants contraband per se.  Because the complaint alleged that the plants were not illegally grown under state law, the complaint stated a cause of action.

Property Owners Must Exhaust Administrative Remedies before Challenging Business Improvement District in Court

In Hill RHF Housing Partners, L.P. v. City of Los Angeles, published June 29, 2020, the Second District Court of Appeal, Division 1 affirmed a trial court's decision denying petitions for writ of mandate and related declaratory and injunctive relief challenging the defendant city's establishment of two business improvement districts.  Article XIII D of the California Constitution and the Property and Business Improvement District Law of 1994 authorize cities to establish property and business improvement districts to levy assessments on real property.  The constitution and law establish a comprehensive procedure cities must follow to create a business improvement district.  The city must mail property owners notice of the proposed assessment and conduct a public hearing not less than 45 days after mailing the notice.  The city must provide property owners with assessment ballots.  At the public hearing, the city shall consider all objections or protests, if any, to the assessment.  Any person can provide oral or written testimony.  At the conclusion of the hearing, a ballot counter shall tabulate the ballots that have not been withdrawn.  The agency shall not impose the assessment if there is a majority protest to it.  The plaintiff property owners returned ballots opposing the establishment of the districts.  The city held the noticed public hearings.  At the hearings there no written protests received.  Based on the hearings and ballots received, the city established the districts.  The owners then petitioned for writs challenging the establishment of the districts.  The trial court denied the petitions on their merits.

The appellate court did not reach the merits of the petitions.  Instead, it ruled that the plaintiffs did not exhaust their administrative remedies.  The comprehensive administrative procedure for challenging a business improvement district requires not only that protesters return ballots against the district, but also present to the agency the owner's specific reasons for its objection, in a manner that the city can consider and either incorporate into its decision or decline to act on.  They can do that either orally or in writing at the public hearing.  Since the owners here did not do so, the court lacked jurisdiction to grant their petitions.