Judge: Curtis A. Kin, Case: 22STCP03976, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCP03976    Hearing Date: August 22, 2023    Dept: 82

Respondent City of Montebello demurs to each of the four causes of action in petitioner John Doe’s verified Petition for Writ of Mandate.  

I.       Factual Allegations

            This proceeding is based on purpoted violations of the Ralph M. Brown Act (“Brown Act”) and the California Public Records Act (“CPRA”).

            On August 23, 2022, petitioner John Doe sent a CPRA request to respondent City of Montebello seeking the disclosure of four categories of public records described as follows: (1) “Council Member Torres has submitted over 160 separate requests which have been processed via this communication method”; (2) “The Mayor, the City Manager and City Attorney have been requested to bring forth a resolution expressing the City Council’s dissatisfaction with the behavior of Council Member David Torres”; (3) “The Investigative Report submitted by Ms. Doumanian”; and (4) “Public criticism of the Staff via his social media platforms or during his comments while at City Council meetings and elsewhere.” (Pet. ¶ 34 & Ex A.)

            On August 24, 2022, the City of Montebello adopted Resolution No. 22-73, which expressed dissatisfaction with the behavior of Councilmember David Torres and admonished him for his harassing and hostile conduct. (Pet. ¶ 40.)  As alleged in the petition and complaint, the City’s action did not comply with the Brown Act because: (1) “it occurred as the culmination of discussions in meetings for which the Act does not permit to be discussed” (Pet. ¶ 40); (2) “it occurred as the culmination of discussions in meetings not open and public, and all persons were not permitted to attend these meetings” (Pet ¶ 41); (3) “it occurred as the culmination of discussions in meetings for which the Act required to appear on posted agendas” (Pet ¶ 42); and (4) “Closed Session meetings were held, for which the Act required to be in open session” (Pet. ¶ 43). The petition additionally alleges that, on August 24, 2022 and beyond, the Mayor and City Council held closed meetings related to the resolution without an agenda through intermediaries, email, text messages, and social media. (Pet. ¶¶ 44, 45.)  

            On September 21, 2022, petitioner sent a Demand for Cure or Correction to respondent. (Pet. ¶ 49 & Ex. B.) On October 19, 2022, respondent denied violating the Brown Act. (Pet. ¶ 50 & Ex. C.)

          On November 4, 2022, petitioner filed a verified Petition for Writ of Mandate and Complaint for Injunctive and Declaratory Relief (“Petition”).  

            On June 12, 2023, respondent served and filed a demurrer to the Petition. No opposition to the demurrer was filed.

II.      Analysis

A.           Declaratory Relief

With respect to the third cause of action, a declaratory relief claim is not assigned to the writs and receivers departments under Local Rules 2.8(d) and 2.9. Accordingly, the third cause of action is stayed pending resolution of the other causes of action. the Court declines to rule on the demurrer with respect to the third cause of action for declaratory relief.

B.           Ripeness

Respondent contends that, to the extent that petitioner’s causes of action are based on violations of the Brown Act, they are not ripe.

Government Code § 54960.1(b)(1) requires the “district attorney or interested person” to demand respondent’s City Council to cure or correct the alleged Brown Act violations. Government Code § 54960.2(a)(1) requires the “district attorney or interested person” to first submit a cease and desist letter by postal mail or facsimile to respondent’s City Council before filing an action based on violations of the Brown Act.  Respondent contends that it is unable to determine whether the Petition is brought on behalf of the district attorney or an interested person because petitioner is using a fictitious name.

“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) “The ripeness doctrine is primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” (Ibid.)

Here, however, the petition and complaint allege an actual set of facts for purposes of ripeness. Respondent is alleged to have violated the Brown Act by adopting a resolution on August 24, 2022 as a result of closed meetings. (Pet. ¶¶ 40-44.) On September 21, 2022, petitioner sent a demand to cure and correct and a cease and desist letter to respondent’s City Council, which respondent rejected. (Pet. ¶¶ 49, 50 & Exs. B, C.)

Assuming petitioner brings the petition on behalf of the district attorney or an interested person, the instant action appears to be sufficiently ripe.

C.           Standing and Anonymity of Petitioner

Respondent’s argument regarding ripeness appears to be one of problems with standing, Standing is the right to make a legal claim or the right to relief in court. (Dent v. Wolf (2017) 15 Cal.App.5th 230, 233; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.)

Based on petitioner’s use of a fictitious name, it is unclear whether petitioner has the right to obtain relief in court, as the allegations of the petition and complaint do not make out whether or how “John Doe” is an interested person for purposes of the Brown Act.

Under CCP § 422.40, a complaint shall include “the names of all the parties.”

A party may proceed in litigation under a fictitious name when a statute specifically allows for keeping the identity of the party confidential or when necessary to preserve an important privacy interest. (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 110 (DFEH); see, e.g., Civ. Code § 1708.85(f)(1) [allowing plaintiff who sues for intentional distribution of sexually explicit materials without consent to proceed under pseudonym]; Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 766 [citing cases where party used fictitious name to protect privacy interest].)

However, the First Amendment guarantees the right of public access to court proceedings, which “necessarily includes the right to know the identity of the parties.” (DFEH, 82 Cal.App.5th at 110-11, citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1211.) “Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.” (DFEH, 82 Cal.App.5th at 111.) “Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’ [Citation.]” (Id. at 111-12, quoting KNBC, 20 Cal.4th at 1226.)

            Here, petitioner alleges: “Plaintiffs reasonably fears that if their identity

were to become public, they and/or their family members would be subject to retaliation by City, County, and/or local/federal government officials and law enforcement, particularly in the form of unwarranted scrutiny, interrogation, or detention and/or other adverse consequences.” (Pet. ¶ 18.) Risk of retaliatory harm to the petitioner or petitioner’s family members might constitute an interest that overrides the constitutional right of public access to court proceedings. (DFEH, 82 Cal.App.5th at 112.) But, the party seeking anonymity bears the burden of showing the risk of harm that might result if petitioner’s identity became known. (Ibid.) Petitioner did not file any opposition or present any evidence of the risk of retaliatory harm. The reason why petitioner or petitioner’s family members may be subject to retaliation is not set forth in the Petition. Accordingly, petitioner does not satisfy the burden to demonstrate an overriding interest that would justify the maintenance of petitioner’s anonymity.

            Accordingly, the demurrer to the first, second, and fourth causes of action are SUSTAINED because it is not clear petitioner has standing on the face of the Petition.

D.           Leave to Amend

As pertinent to the issue of whether the Court should grant leave to amend, petitioner maintains that any amendment to the Brown Act claims would be untimely. Government Code § 54960.1(c)(1) requires the demand to cure or correct to be made 90 days from the action. Government Code § 54960.2(a)(2) requires the cease and desist letter to be submitted to respondent’s City Council nine months from the alleged Brown Act violation.  Implicit in respondent’s contentions is the assumption that service of a demand to cure or correct or a cease and desist letter with petitioner’s real name would be past the times set forth in sections 54960.1(c)(1) and 54960.2(a)(2) of the Government Code.

The fact that the demand to cure or correct and the cease and desist letter did not identify petitioner does not necessarily lead to the conclusion that the demand and letter were not effective to satisfy the requirements of sections 54960.1(c)(1) and 54960.2(a)(2). While, for the reasons stated above, petitioner has not demonstrated entitlement to use a pseudonym in the instant Petition, respondent does not cite any authority for the proposition that petitioner was not able to use a pseudonym in the demand to cure or correct or the cease and desist letter. The Court disregards contentions unsupported by citation to authority. (See Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)

Nevertheless, petitioner still bears the burden to demonstrate how the Petition can be amended to address the defects set forth above. (Silva v. Block (1996) 49 Cal.App.4th 345, 349, citing Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal. App. 4th 799, 808 [“When a demurrer is sustained without leave to amend, the burden of proving a reasonable possibility that the defect can be cured by amendment is on the plaintiff”].) In deciding whether to grant leave to amend, the Court shall hear from petitioner regarding how the defects in the petition and complaint can be cured and whether a pseudonym is justified in the instant proceeding.

III.     Conclusion

            The demurrer to the first, second, and fourth causes of action is SUSTAINED. The Court inquires whether petitioner seeks to and ultimately can amend the Petition.