Judge: Mitchell L. Beckloff, Case: 21STCP03291, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCP03291    Hearing Date: August 31, 2022    Dept: 86

FRIENDS OF WAVERLY, INC. v. CITY OF LOS ANGELES

Case Number: 21STCP03291

Hearing Date: August 31, 2022

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE

Petitioner, Friends of Waverly, Inc., seeks an order setting aside the August 25, 2021 action by Respondents, the City of Los Angeles and its City Council (collectively, the City), amending the City’s lease with Real Party in Interest, People Assisting the Homeless (PATH). Petitioner contends the City Council’s action was taken in violation of public meeting laws.

The City opposes the petition. PATH has joined the City’s opposition.

The City’s seven evidentiary objections to the Declaration of Noel Weiss are sustained.[1]

The City’s evidentiary objections to the Declaration of Victor Adjemian are sustained as to objections 1, 2, 3, 4, 6 and 8. The following objections are sustained in part: 5 (as to “Given that the ‘LACity Clerk Connect’ service provided by the Clerk is, by design, intended to notify the public of pending Council matters”) and 7 (as to “Then-Councilman Ryu had promised the public the temporary bridge shelter would operate on the site for three-years and no longer. This was the length of time of the “license” granted the General Services Dept. by the Board of Recreation & Park Commissioners on September 9, 2019”).

The petition is denied.

STANDARD OF REVIEW

“The Brown Act was adopted to ensure the public's right to attend the meetings of public agencies. ([Gov. Code] § 54950)” (Freedom Newspapers Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 825; Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 331.) Furthermore, the Brown Act requires local agencies to hold meetings open to the public except as expressly authorized by statute. (Gov. Code §§ 54953, 54962; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 374; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234.)

Ordinary mandamus is the appropriate procedural mechanism for resolving a Brown Act dispute. (Gov. Code § 54960, subd. (a); Gov. Code § 54960.1, subd. (a).) Under Code of Civil Procedure section 1085, a writ “may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc. § 1085, subd. (a).)

“To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present[,] and beneficial right to performance of that duty.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 606.) “A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 340.)

ANALYSIS

Petitioner’s Opening Brief argues the City Council’s action to amend to the City’s lease with PATH resulted in several Brown Act and City Council rule violations. The City contends Petitioner has failed to demonstrate it is entitled to any relief in this proceeding. The City also notes several procedural defects in Petitioner’s claims, including claims within the Opening Brief that exceed the scope of the petition.

The court addresses those claims asserted by Petitioner in its Opening Brief in turn.

1. Whether the City Violated Government Code Section 54957.5, subdivisions (b)(1) and (b)(2):[2]

Petitioner argues the City violated a Brown Act notice provision. Petitioner claims the City failed to provide the public with a copy of the proposed amended “lease” in advance of the City Council’s action to approve the amendment. Petitioner claims the amended lease should have been included as part of the City Council file either 72 hours before the vote or provided concurrently with the presentation of the motion to amend before the City Council.

Under Government Code section 54957.5, the City must disclose writings that are distributed to all or most of the City Council members “in connection with a matter subject to discussion or consideration” at the City Council members’ open meetings. (Gov. Code § 54957.5, subd. (a).) Generally, Government Code section 54957.5 requires the writings to “be made available upon request without delay.” (Gov. Code § 54957.5, subd. (a).)

However, when such writings are distributed to all or most members of the City Council less than 72 hours before an open meeting, the Brown Act imposes a slightly different requirement about when and where the writings must be made available. Under such circumstances, subdivision (b)(1) of section 54957.5 provides:

“If a writing that is a public record . . . that relates to an agenda item for an open session of a regular meeting of [the City Council], is distributed less than 72 hours prior to that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, of the members of the [City Council].” 

Subdivision (b)(2) of section 54957.5 describes where such public records must be made available: “A [city] shall make [the] writing . . . available for public inspection at a public office or location that the [city] shall designate for this purpose.” Government Code section 54957.5, subdivision (b)(2) adds that “[t]he [city] also may post the writing on the [city's] Internet Web site in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting.”

Petitioner argues the City violated Government Code section 54957.5 by failing to provide a copy of the proposed amended lease with PATH as part of the City Council file either 72 hours before the vote as required under subdivision (b)(1) or concurrently at the public hearing on the agenda item to the City Council members as required by subdivision (b)(1).

In support of its claim, Petitioner states:

“The proposed ‘lease’ amendment was not part of the Council file. The attested version says it was approved as to form by the City Attorney on the day of the vote (August 25, 2021), but it does not say when. So the logical conclusion is that the ‘lease’ amendment was provided prior to the vote because Rule 37 requires submittal to the Council prior to the vote. This worked to trigger the requirement of Government Code §54957.5(b)(2) that the public be provided with the proposed first amended ‘lease’.” (Opening Brief 1:9-15.)

Petitioner fails to demonstrate the existence of a Brown Act violation here. In particular, there is no competent evidence the City Attorney submitted the proposed lease amendment (attached as Exhibit W to the 8/1/22 Mahlowitz Declaration) to the City Council prior to the vote. In fact, the evidence demonstrates the City Council members did not see the amendment prior to voting on it. (8/1/22 Novoa Decl., ¶ 8. [“No such documents are shown at Council File number 19-0126-S2.”])

Moreover, as explained in the City’s Opposition any alleged failure to comply with Government Code section 54957.5, subdivision (b), does not support nullification of the City’s August 25, 2020 actions. The Brown Act specifically permits nullification only for violations of Government Code sections 54953 (open meeting rules), 54954.2 (meeting notice and agenda rules), 54954.5 (closed session descriptions), 54954.6 (tax/assessment meetings), 54956 (special meeting notice), and 54956.5 (emergency meetings). (Gov. Code § 56960.1, subd. (a).)[3]

1. Whether the City Violated Government Code Section 54954.3, subdivisions (a) and (b):

Petitioner also contends the City violated the Brown Act by failing to provide the public with a reasonable and fair opportunity to directly address the City Council orally prior to the City Council’s vote on whether to approve the motion to amend the City’s lease with PATH.

Petitioner argues—again, without citation to evidence—the “right and protocol [were] diluted and abused by the Council because the presiding officer combined the general public comment category (which Council Rule 7 says is set at 10 minutes) and the specific agenda public comment category (assigned 20 minutes in Rule 7) into one general 30 minute category.” (Opening Brief 2:15-18.)

Petitioner thus suggests the City Council’s allegedly “arbitrary” aggregation of public comment minutes violated the spirit of the Brown Act. The court finds the argument unpersuasive as it is untethered to legal authority.

Further, the City’s evidence demonstrates it complied with the Brown Act’s public comment provisions.

Government Code section 54954.3 provides in part:

“(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. . . .

(b)(1) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

“This language has been construed to mean there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item before or during its consideration by the legislative body.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 514.)

Here, the City Council allocated 30 minutes for general public comment as well as comment concerning agenda items 1 to 3, and 33 to 42, including the motion to amend the City’s lease with PATH (Item 36). (8/1/22 Mahlowitz Decl., ¶ 6 Ex. V [Council Transcript, pp. 10:8-14, 10:23-25]; 12/17/21 Novoa Decl., Ex. A [Agenda, p. 2). Members of the public could speak for one minute per item, for up to three total minutes, which is consistent with Council Rule 7. (8/1/22 Mahlowitz Decl., ¶ 6, Ex. V, pp. 85-86; see Notice of Lodging [Video at 58:00-59:50]; Keotahian Decl., Ex. B [Rules].) The City Council heard thirty minutes of public comment; ten members of the public spoke, each using their 3-minute time allotment. (Mahlowitz Decl., ¶ 7, Ex. V [Transcript pp. 12-35].)

Petitioner fails to articulate a legal argument as to how combining the general and specific agenda public comment category minutes violated the Brown Act by denying the public an opportunity to comment prior to a vote. That Petitioner believes a better means by which to allow comments existed and could have been implemented is of no consequence. Petitioner cites no legal authority requiring every member of the public to have an opportunity to speak, on every agenda issue, or that the Brown Act requires the public have unlimited time to speak. There is no legal argument that the City’s limitation on comments was unreasonable or otherwise inconsistent with the Brown Act.

Nor does the City’s arguable deviation from its own procedural rules create a cognizable claim to support the relief sought—nullification of the City’s action. (Pasadena v. Paine (1954) 126 Cal.App.2d 93.)[4]

1. Whether the City Violated Government Code Section 54957.5

Petitioner also claims the City violated Government Code section 54957.5 and Council Rule 21 by submitting an inaccurate and misleading agenda item description.

The agenda item stated:

“AMEND the Council action of May 5, 2020 regarding a lease agreement for 3210 and 3248 Riverside Drive/Temporary Bridge Housing to approve a lease term of 3 years, as approved by the Recreation and Parks Commission, in lieu of the lease term originally approved by the Council (3 years with two 1 year options).” (12/17/21 Novoa Decl., ¶ 2, Ex. A [Item 36] [Exhibit is also attached as Exhibit T of Mahlowitz Declaration].)

Petitioner contends the agenda was misleading because the agenda description suggested the lease amendment would cure the issue of the City’s inclusion of two one-year options to extend the lease that the court previously suggested was improper. According to Petitioner, the City misleadingly omitted from the agenda description the fact the City intended to keep the month-to-month tenancy provision in the lease.

Under the Government Code, the agenda must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.” (Gov. Code § 54954.2, subd. (a)(1).) Substantial compliance under the Brown Act “means actual compliance in respect to the substance essential to every reasonable objective of the statute.” (San Diegans for Open Government v. City of Oceanside (2016) 4 Cal.App.5th 637, 643.) To fulfill the Brown Act's objective, “agenda drafters must give the public a fair chance to participate in matters of particular or general concern by providing the public with more than mere clues from which they must then guess or surmise the essential nature of the business to be considered by a local agency.” (Ibid.)

The court finds there was nothing misleading in the agenda item. The description indicated the motion was to address the two one-year options in the City’s lease with PATH and that is exactly what the motion and the eventual amendment did. (8/1/22 Novoa Decl., Exh. H [Motion]; 8/1/22 Mahlowitz Decl., Ex. W [amendment to PATH lease].) The agenda description was perfectly clear and accurate; it provided sufficient notice for purposes of the Brown Act.

1. Whether the City Violated Government Code Section 54954.2

Petitioner argues the City failed to provide 72-hour notice of the City’s meeting on the proposed amendment to the City’s lease with PATH, as required by Government Code section 54954.2.

The Brown Act mandates the public receive adequate notice of every item to be discussed at a meeting. (Gov. Code § 54954.2, subd. (a)(1).) Before any regular meeting, a local agency must post an agenda specifying the time and location of the meeting and briefly describing “each item of business to be transacted or discussed at the meeting . . . .” (Gov. Code § 54954.2, subd. (a)(1).) The agenda must be posted, in a location that is freely accessible to the public, at least 72 hours before the meeting. (Gov. Code §§ 54954, subd. (a), 54954.2, subd. (a)(1).)

Here, Petitioner claims the City provided only 38 hours’ notice through the LAClerk-Connect system that the City would be considering an amendment to its lease with PATH. (Weiss Decl., ¶ 7.)

The City’s evidence directly contradicts Petitioner’s assertion. On Friday, August 20, 2021, at 3:45 p.m., the City posted the agenda for the August 25, 2021 City Council meeting on the bulletin board directly inside the Main Street entrance to City Hall. (10/20/21 Novoa Decl., ¶ 23; 8/1/22 Novoa Decl., ¶¶ 2-3, Exs. C-G.) The evidence further shows the bulletin board is open to the public during business hours and was not closed during the COVID-19 pandemic.[5] (8/1/22 Novoa Decl., ¶¶ 2-3, Exs. C-G.) Moreover, at 3:35 p.m. on August 20, 2021, the City posted the agenda electronically on the City’s website. (10/20/21 Novoa Decl., ¶ 3, Ex. B.) 

Petitioner responds to the City’s evidence with a curious claim—the LA Clerk-Connect “system appears to be a kind of bait & switch where the public is softened up and tricked into reasonably relying on the LA Clerk-Connect system as the way knowing about matters coming before the Council.” (Reply 4:2-5.) Petitioner’s supposition is unsubstantiated and does not address the evidence that demonstrates the City’s compliance with Government Code section 54954.2.

1. Whether the City Violated Council Rules 27 and 48

Finally, Petitioner claims a quorum was not present in the Council Chamber when the vote on the City’s amendment to its lease with PATH (Item 36) was tabulated, as mandated by Council Rules 27 and 48.

Petitioner’s argument is as follows: Council Rule 48 requires members to be “present” when voting; Council Rule 27 defines being “present” as being “within the Council Chamber.” Here, Petitioner argues a quorum of the City Council was not present within the “four-corners of the Council chamber” at the time the votes were tabulated.

In support if its compliance with the procedural rules, the City submits evidence that “Council Chamber” means the following areas: (1) the main room with public seating facing a U-shaped desk where Councilmembers and some City staff are seated and the dais where the Presiding Officer sits; (2) two sets of restrooms; (3) a media room for the press; (4) the hallway behind the main room; (5) two executive conference rooms; (6) a photocopy room; and (7) the CLA Office’s work room. (Keotahian Decl., ¶¶ 2, 10) Further, with regard to the City Council voting system, the electronic voting system is pre-set to vote in the affirmative and any council member can change his/her vote prior to the vote being recorded. (Keotahian Decl., ¶ 12.)

According to the opposition, the evidence shows all present City Council members at their seats during the portion of public comment on Item 36 (8/1/22 Mahlowitz Decl., ¶ 7; see Notice of Lodging [Video at 58:00-1:30:15]), indicating the City Council members all had the opportunity to ensure their vote was properly recorded. Further, the City Council meeting transcript shows no City Council member announced he/she left the meeting before the vote and no evidence shows otherwise.[6] (Mahlowitz Decl., Ex. V [Council Transcript].) Lastly, Respondents note that no City Council rule requires City Council members to return to their seats to confirm their votes.

Petitioner has not demonstrated the City failed to comply with City Council Rules 27 and 48. (Riverside Sheriff's Ass'n v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289 [on section 1085 writ claim, “[t]he petitioner bears the burden of pleading and proving the facts upon which the claim is based].)

CONCLUSION

Based on the foregoing, the petition is denied.

IT IS SO ORDERED.

August 31, 2022                                                                     ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court

The court is continuing the City’s motion for sanctions. The court will select a date for the hearing with counsel during argument.