McGee v. Torrance U. Sch. Dist. CA2/8 ( 2015 )

Filed 1/23/15 McGee v. Torrance U. Sch. Dist. CA2/8
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAMES D. MCGEE, B252570
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YC068686)
v.
TORRANCE UNIFIED SCHOOL
DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Stuart M.
Rice, Judge. Affirmed in part; reversed in part and remanded.
Carlin Law Group and Kevin R. Carlin for Plaintiff and Appellant.
Briggs Law Corporation, Cory J. Briggs, Mekaela M. Gladden and Anthony N. Kim
for Kern County Taxpayers Association, Sacramento Taxpayers Association and San
Diegans for Open Government as Amicus Curiae on behalf of Plaintiff and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Martin A. Hom and Jennifer D. Cantrell
for Defendant and Respondent Torrance Unified School District.
Marks, Finch, Thornton & Baird, P. Randolph Finch, Jr., and Jason R. Thornton for
Defendant and Respondent Barnhart-Balfour Beatty, Inc.
Fagen Friedman & Fulfrost, Kathy McKee, Paul G. Thompson, James Traber and
Luke Boughen for California‘s Coalition for Adequate School Housing as Amicus Curiae on
behalf of Defendant and Respondent Torrance Unified School District.
******
Appellant James D. McGee challenged agreements between a school district and
construction company for modernizing three schools within the district. McGee‘s principal
claim was that the school district failed to follow the competitive bid process McGee
believed was required prior to awarding the contracts. The district, on the other hand,
contended that the competitive bid process was not required because the contracts in the
form of lease-leaseback transactions were exempt from the competitive bid process under
Education Code section 17406.1 After sustaining the school district‘s and the construction
company‘s demurrers, the trial court dismissed the lawsuit.
The crux of this case is whether section 17406 exempts lease-leaseback contracts
from the competitive bidding process. Following the recent case Los Alamitos Unified
School Dist. v. Howard Contracting, Inc. (2014) 229 Cal. App. 4th 1222 (Los Alamitos), we
conclude it does. It follows that the trial court properly sustained the demurrer to all of
McGee‘s causes of action based on the claim that competitive bidding was required to enter
into the lease-leaseback agreements.
However, one cause of action alleged a conflict of interest by the contractor and was
not based on the failure to obtain competitive bids. With respect to that cause of action, we
conclude the trial court should have overruled the demurrer. ―[O]nly public officials or
employees can violate [Government Code] section 1090,‖ the statute on which McGee
relies. (Klistoff v. Superior Court (2007) 157 Cal. App. 4th 469, 473.) Here, at this stage in
the proceedings the allegation that the contractor acted as an officer when it advised the
school district was sufficient to withstand demurrer.
1 Undesignated statutory citations are to the Education Code unless otherwise noted.
2
We reverse the judgment of dismissal and order the trial court to reinstate McGee‘s
cause of action alleging a conflict of interest. In all other respects, we conclude the
demurrers were properly sustained.
FACTS AND PROCEDURE
In the spring of 2013, the board of the Torrance Unified School District (District)
adopted three separate resolutions to approve construction contracts with Barnhart-Balfour
Beatty, Inc., doing business as Balfour Beatty Construction (Balfour), for Hickory
Elementary School, Madrona Middle School, and North Hills High School. The guaranteed
maximum price of the three projects exceeded $48 million. With respect to each school, the
District and Balfour signed three agreements—a site lease (leasing land from the District to
Balfour), a sublease (leasing land from Balfour to the District), and a construction
agreement (between the District and Balfour). Under the terms of the agreements, Balfour
would lease the land from the District and the District then leases back the land and
payments of the leasebacks cover the cost of the construction projects.
McGee seeks to invalidate these agreements. In his first amended complaint, McGee
alleged causes of action for (1) failure to comply with section 20110 of the Public Contract
Code; (2) breach of fiduciary duty; (3) failure to comply with section 17417 of the
Education Code; (4) contractor conflict of interest; (5) improper use of section 17400 et seq.
of the Education Code; (6) improper delegation of discretion and (7) declaratory relief.
Putting aside the cause of action for conflict of interest, the remaining causes of
action are premised on McGee‘s contention that that the district could not enter into lease-
leaseback agreements with Balfour. In his first cause of action, McGee alleged that sections
17400-17429 do not authorize the lease-leaseback agreements in this case because they were
―sham leases entered into as a subterfuge to avoid the competitive bidding requirements of
Public Contract Code § 20110 et seq. . . .‖ The alleged breach of a fiduciary duty identified
in the second cause of action similarly is premised on a failure to obtain competitive bids.
McGee alleged that the district failed to consider less expensive proposals or research that it
obtained the best price for the work. The third cause of action for failure to comply with
section 17417 is based on the alleged failure to comply with competitive bid requirements
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outlined in section 17417. The alleged improper use of section 17400 et seq. is similar to
the first cause of action in that McGee alleges that the financing was not ―genuine‖ because
the district had sufficient funds available to pay the cost of construction. In his sixth cause
of action for improper delegation, McGee argues the district failed to properly evaluate
prospective contractors and thereby improperly delegated legislative discretion. The
seventh cause of action for declaratory relief is based on a dispute between McGee and the
District and Balfour regarding the requirement for the competitive bid process in the
Education Code and Public Contract Code.
In contrast to the foregoing causes of action, the cause of action based on conflict of
interest does not concern the district‘s use of the lease-leaseback agreements and the failure
to obtain competitive bids. With respect to the alleged conflict of interest, McGee alleged
the District employed a contractor to provide professional bond program management and
construction management services concerning school construction bonds, which fund the
challenged projects. According to the operative complaint, Balfour acted as an officer of the
District. A conflict of interest arose based on Balfour providing ―preconstruction services‖
to the District. The conflict of interest arose because Balfour could use its position ―for its
own interest rather than the interest of the‖ District. Specifically the contractor could set
overpriced budgets, recommend unnecessary materials, and make other recommendations
increasing the overall cost of the projects.
McGee‘s first amended complaint incorporated a report from the executive officer of
the California State Allocation Board (SAB) drafted in 2004. It appears the report was
presented at a SAB meeting on January 28, 2004. The report noted that ―[t]here was no
consensus among the Committee members regarding the content or conclusions of this
report or what actions the SAB should take, if any.‖
The purpose of the report was ―[t]o discuss the use of lease lease-back agreements for
project delivery of facilities funded through the School Facility Program . . . .‖ That report
analyzed lease-leaseback agreements under section 17406. It concluded that lease-
leaseback agreements were used when the contractor financed the construction and when a
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school district had funds and the lease terminated at the end of construction. It described
some lease arrangements as a subterfuge to avoid the competitive bid process.
The authors were concerned that school districts improperly relied on section 17406
to enter construction contracts without competitive bidding. The authors believed that
section 17406 exempted from the competitive bid process only the property lease from
district to developer (site lease), not the leaseback from developer to school district.
Notwithstanding its conclusion, the SAB recognized that ―current interpretations of EC
17406 hold that competitive bidding is not required.‖
The District and Balfour demurred to the complaint. The court sustained the
demurrers to all causes of action. A judgment of dismissal ensued. This appeal followed.
DISCUSSION
―[O]ur standard of review is clear: ‗―We treat the demurrer as admitting all material
facts properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.‖ [Citation.] Further,
we give the complaint a reasonable interpretation, reading it as a whole and its parts in their
context. [Citation.] When a demurrer is sustained, we determine whether the complaint
states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained
without leave to amend, we decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden
of proving such reasonable possibility is squarely on the plaintiff.‘‖ (Zelig v. County of Los
Angeles (2002) 27 Cal. 4th 1112, 1126.)
Although appellant alleged numerous causes of action, they essentially raise two
legal issues: (1) Does section 17406 exempt the lease-leaseback transactions entered into
between the District and Balfour from the competitive bid process, and (2) did Balfour have
a conflict of interest? We discuss those issues in turn and then consider McGee‘s requests
for judicial notice.
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1. Section 17406 Does Not Require Competitive Bids
The principal issue on appeal is whether the lease-leaseback agreements require
competitive bidding. Competitive bidding is required under section 17417 unless section
17406 creates an exemption from that process.2 We conclude it does.
Section 17417 provides:
―After the governing board of a school district has complied with Section 17402,[3] it
shall, in a regular open meeting, adopt a resolution declaring its intention to enter into a
lease or agreement pursuant to this article. The resolution shall describe, in any manner to
identify it, the available site upon which the building to be used by the district shall be
constructed, shall generally describe the building to be constructed and state that the
building shall be constructed pursuant to the plans and specifications adopted by the
governing board therefor, shall, if that is the case, state the minimum yearly rental at which
the governing board will lease real property belonging to the district upon which the
2 Section 17406 has been amended effective January 1, 2015.
3 Section 17402 provides:
―Before the governing board of a school district enters into a lease or agreement
pursuant to this article, it shall have available a site upon which a building to be used by the
district may be constructed and shall have complied with the provisions of law relating to
the selection and approval of sites, and it shall have prepared and shall have adopted plans
and specifications for the building that have been approved pursuant to Sections 17280 to
17316, inclusive. A district has a site available for the purposes of this section under any of
the following conditions:
―(a) If it owns a site or if it has an option on a site that allows the school district or
the designee of the district to purchase the site. Any school district may acquire and pay for
an option containing such a provision.
―(b) If it is acquiring a site by eminent domain proceedings and pursuant to Chapter 6
(commencing with Section 1255.010) of Title 7 of Part 3 of the Code of Civil Procedure, the
district has obtained an order for possession of the site, and the entire amount deposited with
the court as the probable amount of compensation for the taking has been withdrawn.
―(c) In the case of a district qualifying under Section 17410, if it is leasing a site from
a governmental agency pursuant to a lease having an original term of 35 years or more or
having an option to renew that, if exercised, would extend the term to at least 35 years.‖
6
building is to be constructed, and shall state the maximum number of years for which the
school district will lease the building or site and building, as the case may be, and shall state
that the proposals submitted therefor shall designate the amount of rental, which shall be
annual, semiannual, or monthly, to be paid by the school district for the use of the building,
or building and site, as the case may be. The resolution shall fix a time, not less than three
weeks thereafter for a public meeting of the governing board to be held at its regular place
of meeting, at which sealed proposals to enter a lease or agreement with the school district
will be received from any person, firm, or corporation, and considered by the governing
board. Notice thereof shall be given in the manner provided in Section 17469.
―At the time and place fixed in the resolution for the meeting of the governing body,
all sealed proposals which have been received shall, in public session, be opened, examined,
and declared by the board. Of the proposals submitted which conform to all terms and
conditions specified in the resolution of intention to enter a lease or agreement and which
are made by responsible bidders, the proposal which calls for the lowest rental shall be
finally accepted, or the board shall reject all bids. The board is not required to accept a
proposal, or else reject all bids, on the same day as that in which the proposals are opened.‖
Section 17406, subdivision (a) provides: ―Notwithstanding Section 17417, the
governing board of a school district, without advertising for bids, may let, for a minimum
rental of one dollar ($1) a year, to any person, firm, or corporation any real property that
belongs to the district if the instrument by which this property is let requires the lessee
therein to construct on the demised premises, or provide for the construction thereon of, a
building or buildings for the use of the school district during the term of the lease, and
provides that title to that building shall vest in the school district at the expiration of that
term. The instrument may provide for the means or methods by which that title shall vest in
the school district prior to the expiration of that term, and shall contain other terms and
conditions as the governing board may deem to be in the best interest of the school district.‖
In Los Alamitos, supra, 229 Cal. App. 4th 1222, a contractor filed an action
invalidating a lease-leaseback agreement between another contractor and a school district.
The court concluded that section 17406 ―exempt[s] school districts from obtaining
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competitive bids when entering . . . ‗lease-leaseback‘ agreements to improve school
property.‖ (Los Alamitos, at p. 1224.) The court explained that ―[m]ore than 40 years ago,
the California Attorney General concluded the language of the statute is plain,
unambiguous, and explicit, and does not impose bid requirements on school districts. We
agree, and nothing has occurred in the interim that would change our conclusion.‖ (Ibid.)
Los Alamitos relied principally on the plain language of section 17406. (Los
Alamitos, supra, 229 Cal.App.4th at p. 1226.) ―[S]ection 17406, subdivision (a) expressly
provides that notwithstanding the bidding process established by Education Code section
17417, the District was permitted to engage in the type of transaction at issue here ‗without
advertising for bids.‘‖ (Ibid.) Los Alamitos also relied on an opinion by the Attorney
General interpreting the predecessor to section 17406 in which the Attorney General
concluded that ―‗[t]here is no question but that the Legislature has plainly, unambiguously,
and explicitly imposed notice and bid requirements with respect only to construction
authorized by [Education Code former] section 15706 and not to that authorized by section
15705. Considerations of wisdom, expediency, or policy suggest a contrary conclusion but
such factors may be effectuated only by amendment through the legislative process rather
than judicial construction. Such judicial restraint prevents inadvertently invalidating such
construction, without notice or bids, as may have occurred pursuant to the provisions of
section 15705. [¶] It is concluded that the Legislature excluded an arrangement entered into
under section 15705 from the notice and bid requirements. Because a school district is not
required to obtain bids for lease arrangements under section 15705, it may lease its property
for the purpose of permitting the construction thereon of school buildings which the district
will lease at such rental rates as the governing board deems in the best interests of the
district without reference to competitive bidding.‘ (56 Ops.Cal.Atty.Gen. 571, 581
(1973).)‖4 (Id. at p. 1228.)
4 At the relevant time former section 15705 provided: ―The governing board of a
school district may let, at a minimum rental of one dollar ($1) a year, to any person, firm, or
corporation any real property which belongs to the district if the instrument by which such
property is let requires the lessee therein to construct on the demised premises, or provide
8
Los Alamitos also reasoned that the failure of a proposed amendment to section
17406 requiring competitive bidding suggested the Legislature was cognizant section 17406
lacked such a requirement. The proposed amendment would have added the following
provision: ―‗(a) In order to enable school districts to let real property for the purpose of
acquiring, financing, or constructing facilities, and notwithstanding Section 17417, the
governing board of a school district, through the competitive proposal process set forth in
Article 2.2 (commencing with Section 17429.1), may let, for a minimum rental of one dollar
($1) a year, to any person, firm, or corporation any real property that belongs to the district
if the instrument by which the property is let requires the lessee therein to construct on the
demised premises, or provide for the construction thereon of, a building or buildings for the
use of the school district during the term thereof, and provides that title to that building shall
vest in the school district at the expiration of that term. The instrument may provide for the
means or methods by which that title shall vest in the school district prior to the expiration
of that term, and shall contain any other terms and conditions as the governing board may
deem to be in the best interest of the school district. [¶] (b) Any rental of property that
complies with subdivision (a) shall be deemed to have thereby required the payment of
adequate consideration for purposes of Section 6 of Article XVI of the California
Constitution.‘ (Legis. Counsel‘s Dig., Assem. Bill No. 1486 (2003–2004 Reg. Sess.).)‖
(Los Alamitos, supra, 229 Cal.App.4th at p. 1228, fn. 4.)
The proposed amendment did not survive the Governor‘s veto, at which time the
Governor explained: ―‗I am supportive of using a competitive process for public works
projects and understand that this bill is needed to clarify that process. However, this bill
imposes restrictions on lease-leaseback contracts that could limit competition, inadvertently
for the construction thereon of, a building or buildings for the use of the school district
during the term thereof, and provides that title to such building shall vest in the school
district at the expiration of such term. Such instrument may provide for the means or
methods by which such title shall vest in the school district prior to the expiration of such
term, and shall contain such other terms and conditions as the governing board may deem to
be in the best interest of the school district.‘‖
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limit schools[‘] flexibility, and drive higher administrative costs; thereby potentially
increasing the overall cost of school facility construction. [¶] For this reason, I cannot sign
this measure.‘ (Governor‘s veto message to Assem. on Assem. Bill No. 1486 (2003–2004
Reg. Sess.) (Sept. 24, 2004).) The attempt to amend section 17406 to delete reference to
the language ‗without advertising for bids‘ implies that section 17406 as it reads now does
not require competitive bidding.‖ (Los Alamitos, supra, 229 Cal.App.4th at pp. 1228-1229.)
The Los Alamitos court rejected the argument that the Public Contract Code required
competitive bidding. (Los Alamitos, supra, 229 Cal.App.4th at p. 1227.) The court also
rejected the contention that section 17406 applies only to the site lease in which the district
leases the property to the contractor. (Los Alamitos, at p. 1229.) The court rejected the
contractor‘s argument that section 17417 would be rendered a nullity if section 17406
applied to both the site lease and the sublease. (Los Alamitos, at p. 1230.) The court also
rejected the argument that ―because a more specific statute must take precedence over a
general statute, Education Code section 17417 takes precedence over Education Code
section 17406.‖ (Id. at p. 1229.) Again relying on the plain language of the statute, the
court explained that the term ―notwithstanding‖ in section 17406 indicated that that statute
provides an exception to section 17417. (Los Alamitos, at pp. 1229-1230.)
We agree with the reasoning and result in Los Alamitos. Most importantly, ―[i]f the
statutory language is clear and unambiguous, our task is at an end, for there is no need for
judicial construction. [Citations.] In such a case, there is nothing for the court to interpret
or construe.‖ (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134
Cal. App. 4th 1076, 1082-1083.) The plain language of section 17406 exempts it from the
competitive bid requirements of section 17417. The first sentence provides the key phrase
―[n]otwithstanding [s]ection 17417.‖ ―‗The statutory phrase ―notwithstanding any other
provision of law‖ has been called a ―‗term of art‘‖ [citation] that declares the legislative
intent to override all contrary law.‘‖ (Arias v. Superior Court (2009) 46 Cal. 4th 969, 983.)
Similarly, here the phrase ―[n]otwithstanding [s]ection 17417‖ expresses legislative intent
that section 17406 overrides section 17417.
10
Appellant‘s contrary arguments are not persuasive. There is no statutory basis to
distinguish ―genuine‖ and ―sham‖ lease-leaseback transactions. McGee‘s effort to engraft
additional requirements are unpersuasive because they are not based on any statutory
language. Nor is section 17406 limited by its terms to apply to the site lease as McGee
argues. The statute describes both the lease from the district to the contractor and the
construction of buildings for the school district. Moreover, it expressly exempts section
17417 invalidating McGee‘s argument that the district was required to comply with section
17417. Even assuming that under this interpretation section 17417 is surplusage, that does
not show it should be applied to section 17406 when the plain language of section 17406
exempts transactions under that statute from the requirements of section 17417.
Although the SAB report upon which much of McGee‘s arguments are modeled
reached a contrary conclusion, it is not persuasive. The SAB report did not purport to
interpret the relevant statute applying cannons of statutory interpretation this court is
required to follow. The SAB recognized that‘s its interpretation was different than existing
interpretations. Moreover, it garnered ―no consensus among the Committee members.‖ The
conclusion that the SAB believes that the competitive bidding process is superior to the
process employed by the District in this case, does not show the District was required to
obtain competitive bids. If the Legislature shares McGee‘s view that the competitive bid
process is superior, it may amend section 17406 to specify that it requires a school district to
obtain competitive bids.
2. Conflict of Interest
The remaining cause of action concerned an alleged conflict of interest between
Balfour and the District. The issue for purposes of this appeal is whether the allegations
were sufficient to withstand demurrer.
Government Code section 1090 provides: ―Members of the Legislature, state,
county, district, judicial district, and city officers or employees shall not be financially
interested in any contract made by them in their official capacity, or by any body or board of
which they are members. Nor shall state, county, district, judicial district, and city officers
11
or employees be purchasers at any sale or vendors at any purchase made by them in their
official capacity.‖
Government Code section 1090 ―places responsibility for acts of self-dealing on the
public servant where he or she exercises sufficient control over the public entity, i.e., where
the agent is in a position to contract in his or her ‗official capacity.‘‖ (California Housing
Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148
Cal. App. 4th 682, 690.) ―‗[Government Code] [s]ection 1090 is triggered when a public
official receives any profit from a public contract and includes the acceptance of a bribe in
return for influencing the public entity to enter into a particular contract.‘‖ (Eden Township
Heathcare Dist. v. Sutter Health (2011) 202 Cal. App. 4th 208, 225.) ―The interest
proscribed by Government Code section 1090 is an interest in the contract. The purpose of
the prohibition is to prevent a situation where a public official would stand to gain or lose
something with respect to the making of a contract over which in his official capacity he
could exercise some influence.‖ (People v. Vallerga (1977) 67 Cal. App. 3d 847, 867, fn. 5.)
In Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal. App. 4th
1114, Division Four of this court held that an independent contractor who advised city staff
regarding waste management could be held liable under Government Code section 1090.
The independent contractor had significant influence in that he ―identified vendors, and
negotiated to acquire trucks, refuse containers, and real estate on behalf of the city. He
negotiated a transfer station disposal contract and a contract for a maintenance facility.‖ He
also had ―discretion over which vendors to solicit, and influenced the city‘s staffing
decisions.‖ He held the city ―with the acquisition of insurance, and discussed the possibility
of outsourcing waste hauling operations to a private contractor.‖ The independent
contractor ―acted as the director of the in-house waste division, working alongside city
employees, overseeing day-to-day operations . . . , and taking responsibility for public
education and compliance with state-mandated recycling and waste reduction efforts.‖ (Hub
City Solid Waste Services, Inc., at pp. 1119-1120; but see People v. Christiansen (2013) 216
Cal. App. 4th 1181, 1189 [in criminal context independent contractor cannot be employee of
city].)
12
Here, McGee alleges the contractor performed the functions of ―officers, employees
and agents of District.‖ At this early stage in the proceedings, the allegation must be
credited. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.) The trial court
therefore should have overruled the demurrer to McGee‘s fourth cause of action.
3. Judicial Notice
McGee challenges the trial court‘s ruling denying judicial notice of newspaper
articles and a legal opinion drafted by attorneys at the law firm Best Best & Krieger, and an
article delivered at a conference on school facilities. McGee argues the newspaper articles
aid in interpretation of statute of ―sections 17406 and 17417 to prevent misuse of public
funds, fraud, favoritism corruption and stimulate advantageous market place competition in
the expenditure of school construction bond proceeds.‖ We disagree.
The newspaper articles are not relevant to statutory interpretation. We have
explained the steps necessary for statutory interpretation, none of which involve consulting
newspaper articles, articles delivered at conferences, or opinions by law firms. Legislators
could not have considered these documents drafted after the laws were codified. The trial
court properly denied judicial notice of these items. Moreover, even if the court could have
taken judicial notice that the articles had been written, it could not judicially notice the truth
of the matter asserted in the articles, McGee‘s basis for citing them. (See Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) The legal
opinion represents one attorney‘s analysis of Government Code section 1090 in the context
of a water district and is not precedent upon which this court may rely. The attorney‘s
evaluation of a bid in another case is not relevant to any issue in this case.
On appeal, we deny McGee‘s request for judicial notice of California statute and case
law because it is not required. We also deny McGee‘s request for judicial notice of the
briefs in Los Alamitos. We have considered McGee‘s arguments, and whether the briefing
was similar in Los Alamitos is not helpful to resolving this appeal. Finally, McGee‘s request
for judicial notice of criminal misconduct in connection with awarding contracting bids
because they are not relevant to the current appeal. None of the criminal actions involved
any party to this appeal. The issue on appeal is not whether the competitive bid process is
13
preferable (which McGee seeks to show through his requests for judicial notice) but instead
whether section 17406 requires competitive bids.
Finally, we deny McGee‘s requests for judicial notice in connection with his
opposition to California‘s Coalition for Adequate School Housing‘s (CASH‘s) amicus
curiae brief. McGee fails to show they are relevant to this appeal. McGee argues they are
relevant because ―they go to the credibility and motivation of CASH to make the arguments
asserted in their Amicus Briefs‖ and define the ―essence of CASH.‖ The issue is the proper
interpretation of section 17406, not the essence of CASH or CASH‘s motivation for filing
an amicus brief. We also decline to take judicial notice of documents on the District‘s
website concerning the construction projects challenged in this case. Those documents are
not relevant to any material issue in the case. Nor has McGee demonstrated they are a
proper subject of judicial notice.
DISPOSITION
The judgment is reversed. The trial court is directed to enter an order sustaining the
demurrer to all causes of action except the fourth cause of action alleging Balfour had a
conflict of interest. The parties shall bear their own costs on appeal.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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