Judge: Keri G. Katz, Case: 37-2017-00048800-CU-MC-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Misc Complaints - Other Summary Judgment / Summary Adjudication (Civil) 37-2017-00048800-CU-MC-CTL SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO SCHOOL DISTRICT CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/16/2023

The court addresses the evidentiary issues. Defendant San Ysidro School District's request for judicial notice is GRANTED. Plaintiff's request for judicial notice is DENIED as to items 3 and 6 and GRANTED as to the remainder. Plaintiff's objections to SYSD's request for judicial notice are all OVERRULED. Plaintiff's evidentiary objections are all OVERRULED. SYSD's reply request for judicial notice is GRANTED. SYSD's evidentiary objections to Plaintiff's evidence are all OVERRULED.

SYSD's evidentiary objections to Plaintiff's request for judicial notice are SUSTAINED as to items 3 and 6 are OVERRULED as to the remainder.

The court then rules as follows. Defendant San Ysidro School District's motion for summary judgment is GRANTED. In light of this ruling SYSD's alternate motion for summary adjudication is moot.

Preliminarily, SYSD raises the procedural issue that Plaintiff's opposing memorandum of points and authorities is in violation of the 20-page length of memorandum requirement of California Rules of Court, Rule 3.1113(d). In addition to Plaintiff's procedural infirmary, SYSD's compendium of exhibits contains 16 exhibits and approximately 321 pages without the electronic bookmarks required by California Rules of Court, rule 3.1110(f)(1) and (4). The court exercises its discretion in favor of considering the entirety of Plaintiff's opposing memorandum of points and authorities as well as the SYSD's compendium of exhibits.

There is also another procedural issue. On September 17, 2021, this court granted Plaintiff's motion for leave to file a third amended complaint. However, a third amended complaint was never separately filed in the court file. The court treats the Verified Third Amended Complaint attached as Exhibit 1 to Plaintiff's moving papers on Plaintiff's motion to amend [ROA 133] as the operative pleading. This same pleading is attached to Plaintiff's opposition papers as Exhibit K.

Plaintiff's Verified Third Amended Complaint alleges four causes of action for 'Violation of Open-Government Laws', 'Illegality of Disbursement Caused by Defendants', 'Illegality of Defendants' Conduct as Described in State Audit Report' and 'Violation of Conflict of Interest Laws.' SYSD brings this motion as to all causes of action.

The court addresses the issues as framed by SYSD's notice of motion.

ISSUE NO. 1: AS TO PLAINTIFF'S FIRST CAUSE OF ACTION FOR VIOLATION OF OPEN GOVERNMENT LAWS [UMFs 1-21] Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL Issue 1(a): There are no triable issues of material fact as to Plaintiff's first cause of action for violation of open government laws because the District complied with the Brown Act in regards to all matters relating to the cessation of Fonseca's employment.

The complaint alleges: 16. The SYSD governing board's approval of the Separation Agreement violated the Brown Act because the closed-session meeting at which the Agreement was approved included discussion about increasing, and action in fact increasing, the compensation that FONSECA would receive upon termination of his employment.

. . . .

18. Plaintiff is informed and believes and on that basis alleges that public money has been illegally and/or excessively paid to FONSECA and continues to be paid out pursuant to the Separation Agreement as a result of the SYSD's violation of the Brown Act as alleged in this pleading.

19. As a result of Defendants' illegal actions as alleged in this pleading, California taxpayers have been harmed in an amount equal to or greater than the payments already made and still being made to FONSECA pursuant to the Separation Agreement.

As to its actions in closed session, SYSD relies on Government Code § 54957(b)(1): (b)(1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

. . . .

(4) . . . . Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.

As to the posting of the agenda, SYSD relies on Government Code § 54954.5: For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. 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.

Substantial compliance is satisfied by including the information provided below, irrespective of its format.

. . . .

PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.) Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL As to the reporting out, SYSD relies on Government Code § 54957.1(a)(5): (a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present, as follows: (5) Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.

SYSD submits undisputed evidence that at least 24 hours before the closed session, SYSD published an agenda for a special session of its Board [SSUMF 9]; the agenda contained a single item for deliberation and decision: 'Public Employee Discipline/Dismissal/Release/Reassignment' [SSUMF 10]; the agenda stated this decision was to be made during closed session [SSUMF 11]; the agenda stated that the Board would then either take action in open session or report any action that had been taken during closed session [SSUMF 12]; at the special meeting the Board entered closed session pursuant to the agenda [SSUMF 13]; the Board then reported out its action during closed session [SSUMF 14]; the Board reported that it unanimously voted to accept the resignation of Fonseca in exchange for 18 months of severance pay [SSUMF 15]; the minutes of this meeting were written and published [SSUMF 16]; the Separation Agreement and General Release required Fonseca to release all claims he may have had against the District [SSUMF 20]; it also prohibited Fonseca from seeking any future employment with the District [SSUMF 21].

In opposition Plaintiff first raises issues with respect to the report out of action taken during the closed session. The report out states in full: The Board took the following action in Closed Session: The Board, by a vote of 5 to 0, accepted the resignation of the Superintendent effective immediately, in exchange for 18 months of compensation and release of all claims. The Board believes this is the most effective way to ensure that the excellent educational services provided to the community and its students will continue uninterrupted.

With that said, the Board of Education accepted the resignation of Superintendent Julio Fonseca effective immediately. Dr. Fonseca's departure is based on a personal situation. The Board of Education feels strongly that Dr. Fonseca's tenure with the District has been highly productive and impactful for student learning. The Board agreed to accept Dr. Fonseca's resignation and thanked him for his tireless and dedicated service to the District and the children in the school community.

Arturo Sanchez-Macias, Deputy Superintendent, has been named the Interim Superintendent and the Board has every confidence that Dr. Fonseca's great work in helping the District offer excellent educational services to the community's students will continue under Mr. Sanchez -Macias' leadership.

[SSUMF 14.] Although Plaintiff raises arguments as to whether Fonseca resigned or was terminated by the Board, none of the evidence Plaintiff relies on, including that referred to in Plaintiff's Additional Facts 120, 121, 127, 128, 130, 131, 134, 135 and 141, is sufficient to create triable issues of material fact as to whether Fonseca resigned as stated in the report out of closed session. To the extent Plaintiff argues that the Board was required to publish the Separation Agreement, none of the authorities Plaintiff relies on impose such a requirement and nothing in Government Code § 54957.1 imposes such a requirement.

Plaintiff next argues that the Board exceeded the scope of the allowed discussion/action under Government Code § 54957(b)(4) ['[c]losed sessions held pursuant to this subdivision shall not include Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline']. However, the evidence before the court is that Fonseca was paid the equivalent of 18 months' of compensation, not as compensation, but in exchange for Fonseca's resignation and release of all claims. In these circumstances, Plaintiff fails to establish how discussion of such payment is in violation of § 54957(b)(4). The court is not persuaded by Plaintiff's reliance on Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471. Page is distinguishable because it is based on the limitations of Government Code § 54956.9 [Pending litigation; closed session; lawyer-client privilege; notice; memorandum].

Looking to the content of section 54956.9 (Centre City, supra, 134 Cal.App.4th at p. 182, 35 Cal.Rptr.3d 826), we find nothing in its plain text authorizing the practice of mediating disputes or discussing potential litigation with opposing parties and their counsel.

Page, 180 Cal.App.4th at 502.

None of the authorities Plaintiff relies on require the same limitations to be read into Government Code § 54957. Rather, the only limitation is that of § 54957(b)(4). And, as set forth above, the evidence does not establish that the Board took action in violation of this subsection.

Plaintiff also argues that the agenda description 'Public Employee Discipline/Dismissal/Release/Reassignment' was insufficient to notice the action taken by the Board in closed session – negotiation of the Separation Agreement and payment to Fonseca. However, Plaintiff fails to provide any authority or cite to any facts to support such argument.

The court finds Plaintiff fails to establish triable issues of material fact as to whether the action taken by the Board was in violation of the Brown Act.

ISSUE NO. 2: AS TO PLAINTIFF'S SECOND, THIRD AND FOURTH CAUSES OF ACTION [UMF'S 21-53] Issue 2(a): There are no triable issues of material fact as to Plaintiff's second, third and fourth causes of action because the Plaintiff lacks standing under the doctrine of collateral estoppel.

Issue 2(b): There are no triable issues of material fact as to Plaintiff's second, third and fourth causes of action because the Plaintiff lacks standing under California Code of Civil Procedure §526a and common law taxpayer standing.

Issue 2(c): There are no triable issues of material fact as to Plaintiff's second, third and fourth causes of action because the Plaintiff lacks standing under California Code of Civil Procedure §1060.

Issue 2(d) There are no triable issues of material fact as to Plaintiff's second, third and fourth causes of action because the Plaintiff has no factual basis for standing.

The court addresses only issues 2(b) and 2(d) because the court finds these issues dispositive. As to these issues the court finds San Diegans for Open Government v. Fonseca ('Fonseca') (2021) 64 Cal.App.5th 426 controlling and compels the same result in this case.

Pursuant to CCP § 526a (a) An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a local agency, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax that funds the defendant local agency, including, but not limited to, the Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL following: (1) An income tax.

(2) A sales and use tax or transaction and use tax initially paid by a consumer to a retailer.

(3) A property tax, including a property tax paid by a tenant or lessee to a landlord or lessor pursuant to the terms of a written lease.

(4) A business license tax.

. . . .

(d) For purposes of this section, the following definitions apply: (1) 'Local agency' means a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state.

(2) 'Resident' means a person who lives, works, owns property, or attends school in the jurisdiction of the defendant local agency.

As Fonseca explains, . . . section 526a, subdivisions (a) and (d)(2) are unambiguous. (See Coalition, supra, 34 Cal.4th at p. 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.) For SDOG to have standing to maintain this action, it was required to show either it, or one of its members who was a 'resident' within the meaning of the statute, paid a tax that funded District within one year of the commencement of the action.

Fonseca, 64 Cal.App.5th at 436–437.

It is undisputed that, at deposition, the person most knowledgeable/chief executive officer of SDOG, Pedro Quiroz, refused to identify any members of SDOG who resided within the boundaries of SYSD [SSUMF 40] and that Pedro Quiroz admitted he did not know the identities of any SDOG member who lived within the boundaries of SYSD [SSUMF 41]. SYSD submits evidence which it contends establishes that, with the exception of one occasion at a restaurant [SSUMF 44]; SDOG has never held a business meeting within the jurisdiction of SYSD [SSUMF 42]; SDOG has no record of paying sales tax within the jurisdiction of SYSD [SSUMF 43]; SDOG is not aware of any of its board members owning property with the jurisdiction of SYSD [SSUMF 45]; and SDOG is not aware of any of its board members being residents within the jurisdiction of SYSD [SSUMF 46].

In opposition Plaintiff submits evidence in the form of deposition testimony from SDOG person most knowledgeable Teresa Quiroz that SDOG held an open government 'boot camp' within the jurisdiction of SYSD [SDOG response to SSUMF 42] and that SDOG purchased food and drinks and were assessed and paid the customary state sales tax [SDOG response to SSUMF 43; Plaintiff's Additional Facts 104]. Plaintiff also submits evidence that SDOG board members are residents and property owners in the State of California, County of San Diego and City of San Diego [Plaintiff's AF 105]; at least one of SDOG's members paid income and property taxes to the State of California and has paid taxes in the City of San Diego and County of San Diego [Plaintiff's AF 02]; SDOG board members have paid income and property taxes to the State of California [Plaintiff's AF 106]; SYSD is funded by taxes that are paid to the State of California [Plaintiff's AF 107]; and SYSD is located in the City of San Diego [Plaintiff's AF 108].

The court finds such evidence insufficient to create triable issues of material fact as to whether Plaintiff has standing under CCP § 526a. To the extent Plaintiff relies on payment of sales tax by SDOG, under Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035 'a sales tax is a levy imposed on the retailer, Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL not the consumer' and, as such, payment of sales tax will not confer standing. Torres, 13 Cal.App.4th at 1047. As in Fonseca, evidence that board members paid income and property taxes to the State of California is insufficient because there is no evidence that any board member qualifies as a ' 'resident' within the meaning of subdivision (d)(2) of section 526a, inasmuch as [there is no testimony that any board members] live, work, own property, or attend school within District's jurisdiction.' Fonseca, 64 Cal.App.5th at 438. The court is not persuaded by the authorities Plaintiff relies on. Unlike in Fonseca, the analysis in A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677 is not as to the 'resident' requirement of CCP § 526a. Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13 is distinguishable because the taxpayer owned real property and paid taxes to the local agency sued (the City of Manhattan Beach). Irwin, 65 Cal.2d at 16. Similarly, Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472 is distinguishable because the allegations at issue on demurrer were that the plaintiff was a resident who lived within the boundary of the local agency sued (City of San Francisco) and paid property taxes therein. Chiatello, 189 Cal.App.4th at 477. Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241 is likewise distinguishable because the allegations before the court were that the plaintiff lived in a rental apartment located within the boundary of local agency sued (City of San Rafael and County of Marin) and had paid 'sales tax, gasoline tax, water and sewage fees . . .

and 'other taxes, charges and fees routinely imposed' in the City of San Rafael and County of Marin.' Weatherford, 2 Cal.5th at 1245. In contrast, Plaintiff fails to submit any evidence establishing that its board members resided in the jurisdiction of SYSD at the time taxes were paid. Absent such evidence, Fonseca controls. The other case SDOG relies on, Gilbane Building Co. v. Superior Court (2014) 223 Cal.App.4th 1527, is inapplicable in the absence of evidence establishing that one of the members of SDOG has standing.

SDOG also argues standing under CC § 1060. Pursuant to this section: Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.

SDOG does not bring a separate declaratory relief cause of action. Instead as to the second and third causes of action the complaint alleges: 27./32. There is a good-faith dispute between Plaintiff, on the one hand, and Defendants, on the other hand, as to whether the preceding allegations in this cause of action are true. Plaintiff contends that they are at least partly true. Plaintiff is informed and believes and on that basis alleges that Defendants contend that none of them is true. The parties therefore require a judicial determination of the issue.

There is no similar allegation as to the fourth cause of action.

As to the second and third causes of action, Plaintiff fails to establish how CC § 1060 provides for a cause of action based on the parties' alleged dispute as to whether allegations as to a cause of action are true. As to the fourth cause of action, there are no allegations as to declaratory relief. Such circumstances do not allow for standing under CC § 1060.

The court is not persuaded by Plaintiff's argument that the Brown Act and CCP § 526a authorize declaratory relief. Plaintiff fails to provide authority holding that language permitting actions to seek a 'judicial determination' [Government Code § 54960.1(a)] allow for independent standing under CC § Calendar No.: Event ID:  TENTATIVE RULINGS

2916692  7 CASE NUMBER: CASE TITLE:  SAN DIEGANS FOR OPEN GOVERNMENT VS SAN YSIDRO  37-2017-00048800-CU-MC-CTL 1060. Nor does such language appear in CCP § 526a. And, Fonseca is to the contrary as the court also held plaintiff was without standing to bring a claim for declaratory relief.

Based on the foregoing, the court finds Plaintiff fails to demonstrate triable issues of material fact as to whether SDOG has standing to bring the second, third and fourth causes of action.

In light of this ruling the court does not reach Issue Nos. 3, 4 and 5.

The court orders SYSD to submit a proposed judgment within 10 days of this ruling.

The court will hear from the parties as to how this matter will proceed against the remaining defendant, Julio Fonseca, and whether the writ hearing set for September 29, 2023, will go forward. The court will also hear from the parties as to the status of the Fonseca cross-complaint.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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