Judge: John C. Gastelum, Case: 21-01220379, Date: 2022-07-28 Tentative Ruling
(1) Demurrer – Other (2) CMC
Tentative Ruling: Respondent The Orange County Board of Supervisors (the “Board”) demurs to the Amended Petition (the “Petition”) of Petitioners Susan Skinner, M.D. and James Mosher, Ph.D. (“Petitioners”) on the ground the Petition fails to state facts sufficient to constitute a cause of action.
The Board’s Request for Judicial Notice of Exhibit C, the July 14 letter from Miller to Johns is GRANTED. (Evid. Code, § 452(h).) The Request for Judicial Notice as to Exhibits A and B is DENIED, as those Exhibits are not relevant to the determination of the issues raised here. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.)
The Petition alleges three causes of action: (1) relief pursuant to Government Code section 54960.1 [cure and correct]; (2) relief pursuant to Government Code section 54960 and Code of Civil Procedure section 1060 [declaratory relief]; and (3) relief pursuant to Government Code section 54960 [injunctive relief].
The Petition alleges the following: a fence erected in 1970 (the “Enclosing Fence”) and the property upon which it stands was purchased by the Irvine Company (Petition, ¶ 17); the Irvine Company then deeded the property (the “Public Land”) to the County of Orange (ibid.); the owner of private property appurtenant to the Public Land, Buck Johns, built one or more additions to the original Enclosing Fence and cut off public access to the Public Land (Petition, ¶ 18); in 2020, Johns requested to purchase the Public Land and some County Supervisors offered to declare the Public Land as abandoned to facilitate the purchase (Petition, ¶ 19); members of the public protested against converting the Public Land to private property and demanded that the Enclosing Fence be taken down (Petition, ¶ 20); that vote item was withdrawn from the meeting agenda and the Board did not discuss the Public Land or Enclosing Fence at the May 11, 2021 meeting (Petition, ¶ 22); and subsequently, the Board posted the Agenda for the July 13, 2021 regular meeting in early July 2021 and it did not notify the public that the Board would be discussing and potentially taking action pertaining to the Enclosing Fence (Petition, ¶ 23).
It further alleges: on July 8, 2021, a letter written on behalf of Johns was delivered, asserting Johns’ claims to the Enclosing Fence and Public Land and threatening litigation if the Board did not comply with Johns’ demands that the Board “cease any efforts to remove the fence in order to allow settlement discussions to occur” (Petition, ¶ 24); and on July 8, 2021, County Counsel Leon Page posted on the Board’s website the following additional agenda item for the July 13 meeting:
CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION – SIGNIFICANT EXPOSURE TO LITIGATION pursuant to Government Code section 54956.9(d)(2). Number of Cases: One Case. (Petition, ¶ 25.)
The minutes for the July 13 meeting state:
CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION – SIGNIFICANT EXPOSURE TO LITIGATION pursuant to Government Code section 54956.9(d)(2). Number of Cases: One Case.
HELD, NO REPORTABLE ACTION (Petition, ¶ 26.)
On July 14, the Board’s Chief Real Estate Officer Thomas A. Miller sent a letter to Johns stating the Board had agreed to comply with Johns’ demand to leave the Enclosing Fence standing. (Petition, ¶ 28.)
Petitioners allege the Board violated the Brown Act by failing to: (1) effectively notice the actions it took during its secret July 13 closed session pertaining to the Enclosing Fence, (2) include the Johns letter with all other documents pertaining to individual agenda items posted online, (3) provide the facts and circumstances of Johns’ litigation threat under section 54956.9(e), (4) include Skinner’s July 11 letter in the comments to the agenda item in the meeting minutes, and (5) report out the vote on any decision that took place during the July 13 closed session. (Petition, ¶¶ 30-33.)
“ ‘To state a cause of action, a complaint based on [section] 54960.1 must allege: (1) that a legislative body of a local agency violated one or more enumerated Brown Act statutes; (2) that there was “action taken” by the local legislative body in connection with the violation; and (3) that before commencing the action, plaintiff made a timely demand of the legislative body to cure or correct the action alleged to have been taken in violation of the enumerated statutes, and the legislative body did not cure or correct the challenged action.’ ” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 684, 98 Cal.Rptr.2d 263.) “Section 54960, subdivision (a) provides an ‘action by mandamus, injunction, or declaratory relief [may be commenced] for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2 . . . .’ ” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 522-523.)
The Board contends all three causes of action fail because its conduct complied with all requirements of the Brown Act.
The Petition Fails to Allege Notice of the July 13 Meeting was Improper
Government Code section 54954.5(c), in relevant part, provides that the agenda for a closed session item pursuant to section 54956.9 (pending litigation) may be described as:
CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9: (Specify number of potential cases)
(In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive, of subdivision (e) of Section 54956.9.)
“No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section.” (Gov. Code, § 54954.5.) The closed session item on July 13 was described on the Board’s posted agenda as follows:
CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION – SIGNIFICANT EXPOSURE TO LITIGATION pursuant to Government Code section 54956.9(d)(2).
Number of Cases: One Case.
(Petition, ¶ 25.) The notice substantially complies with section 54954.5(c). Thus, Petitioners’ allegations that the Board’s notice of the closed session was ineffective do not support their causes of action.
The Petition Fails to Allege Facts Showing the Johns Letter Should Have Been Included with the Agenda
The Board contends it was not required to provide a copy of the Johns letter in the agenda packet posted online because the Brown Act only required it to make the letter available for public inspection on request. The Court agrees.
Upon receipt of a written communication from a potential plaintiff threatening litigation, the communication must be made available for public inspection pursuant to section 54957.5. (Gov. Code, § 54956.9(e)(3).) Section 54957.5 provides: “agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), and shall be made available upon request without delay.” This section is expressly limited to open meetings and it is undisputed here that the meeting at issue was closed, not open. Section 54957.5 therefore does not apply.
Further, even assuming the section did apply, the Board had no obligation to include the Johns letter with the materials posted with the July 13 agenda. It only had to provide a copy of the letter “upon request without delay.” Petitioners do not allege they requested a copy of the letter or that the Board delayed in providing a copy upon request anywhere in their Petition.
Petitioners contend notice was still defective because the Board was required to include a copy of the Johns letter under subdivision (e)(5) of section 54956.9.
Section 54956.9(e)(5) requires a statement threatening litigation made by a person outside an open and public meeting be available for public inspection pursuant to section 54957.5. It requires a public agency to “ ‘make[] a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to section 54957.5.’ ” (Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360, 368.) “Section 54957.5 directs public agencies to disclose agendas of public meetings and other writings that are distributed to members of a local agency in connection with open meetings.” (Ibid.) “Read together, sections 54956.9 and 54957.5 contemplate that a litigation threat will be reduced to writing and included in the agenda materials available to the public upon request.” (Id., at p. 370.)
Here, again, the meeting at issue was a closed meeting, not an open, public meeting. Thus, section 54957.5 does not apply.
Further, it is not clear to the Court that section 54956.9(e)(5) applies. The Fowler court’s interpretation of the statute indicates the statute relates to oral statements threatening litigation. The Fowler court held that “sections 54956.9 and 54957.5 contemplate that a litigation threat will be reduced to writing,” suggesting that threats subject to this subdivision are verbal. (46 Cal.App.5th at p. 379, emphasis added.) Moreover, subdivision (e)(3) of section 54956.9 deals with written communications threatening litigation. Because subdivision (e)(3) covers written threats of litigation, principles of statutory construction would suggest that subdivision (e)(5) relates to verbal threats of litigation. (See DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371, 378 [principles of statutory construction avoid making some words surplusage and requires various parts of a statutory enactment to be harmonized by considering the framework as a whole].) This conclusion is supported by the fact that subdivision (e)(5) expressly requires a public agency to make a record of the statement, because if the threat was verbal only, there would be no record of it until the public agency made one.
Thus, Petitioners’ allegations that the Board violated the Brown Act by failing to include the Johns letter with the agenda items do not support their causes of action.
There was No Requirement That the Board Include the Skinner Letter in the Meeting Minutes
As the Board points out, though Petitioners allege the Board violated the Brown Act by failing to include Skinner’s July 11 letter in the comments of the meeting minutes, Petitioners do not point to any statute that would require the Board to do so. Petitioners do not address this argument and have therefore abandoned the issue. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Thus, this allegation cannot support a cause of action against the Board for violations of the Brown Act.
The Petition Fails to Allege the Board Violated Sections 54953(c)(2) and 54957.1(a)(3)(A)
Petitioners argue the Board violated the Brown Act by failing to report out the decision not to remove the Enclosing Fence, which decision was approval of a settlement of pending litigation. They contend that sections 54953(c)(2) and 54957.1(a)(3)(A) mandate that such settlements be reported out to the public after the closed session where the settlement proposal was accepted or approved.
Government Code section 54953(c)(2) states: “The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.”
Government Code section 54957.1(a)(3)(A) states: “If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held.”
Section 54953(c)(2) does not apply here. Instead, section 54957.1, which delineates when public reporting is required for actions taken in closed sessions, applies. (See Grassi v. Superior Court (2021) 73 Cal.App.5th 283, 305-306 [with conflicting statutes, more specific provisions take precedence over more general ones].)
Section 54957.1(a)(3)(A) only requires reporting “after the settlement is final.” Petitioners do not allege that there was any final settlement between the Board and Johns, nor do they allege the Board accepted any settlement offer signed by Johns. The Petition itself alleges that the Johns letter stated that it was intended to allow settlement discussions to occur. (Petition, ¶ 24.) Moreover, the July 14 letter to Johns from Miller states that “nothing herein should be taken as an agreement with any of the contentions” raised in Johns’ letter. (RJN, Ex. C.)
Thus, the Petition fails to allege any final settlement between the Board and Johns that would require public reporting under Government Code section 54957.1(a)(3)(A).
Given the foregoing, Petitioners’ allegations fail to support the causes of action alleged against the Board, as Petitioners have failed to allege any violation of the Brown Act. Thus, the Board’s Demurrer is SUSTAINED with 20 days’ leave to amend.
The Board to give notice.