DocketNumber： S069688
Judges： Aclu Foundation of Southern California
Filed Date： 6/1/1999
Status： Precedential
Modified Date： 10/19/2024
Opinion
The Bagley-Keene Open Meeting Act (hereafter sometimes the act), which is set out at section 11120 et seq. of the Government Code,
We granted review in this cause to address two important questions of first impression.
One question concerns the right of action granted by subdivision (a) of section 11130 (hereafter section 11130(a)): “[A]ny interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “or to determine the applicability of’ the act “to actions or threatened future action by members of’ a “state body . . . .” Does this right of action extend only to present and future actions and violations and not past ones?
As we shall explain, we conclude that the answer to each of these questions is affirmative.
I
The Regents of the University of California are a corporation with full powers of organization and government over the university, subject only to specified control by the Legislature. (Cal. Const., art. IX, § 9, subd. (a).) The corporation is in the form of a board composed of 25 members. (Ibid.) It numbers seven members ex officio, including the Governor, and eighteen members appointed by the Governor and approved by the Senate (ibid.)— who may, in their discretion, appoint a faculty member or a student member or both (id., art. IX, § 9, subd. (c)).
On July 20, 1995, having given prior notice, the Regents held an open and public meeting in order to consider two items listed on their agenda. At that time, the board comprised 26 members, including Edward P. Gomez, a student who had been appointed by the other members. Of the 26 members, 25 were present. One of the items was SP-1, entitled “Adoption of Resolution: Policy Ensuring Equal Treatment—Admissions,” which, among other things, would prohibit the university from “us[ing] race, religion, sex, color, ethnicity, or national origin as criteria for admission to the [ujniversity or to any program of study,” effective January 1, 1997. The other of the items was SP-2, entitled “Adoption of Resolution: Policy Ensuring Equal Treatment— Business Practices and Employment (or Employment and Contracting),” which, among other things, would similarly prohibit the university from “us[ing] race, religion, sex, color, ethnicity, or national origin as criteria in its employment and contracting practices,” effective January 1, 1996. The meeting spanned Y2¥i hours. Following deliberations, the Regents approved
On February 16, 1996, almost seven months later, Tim Molloy and the Daily Nexus (hereafter collectively Molloy) filed a complaint in the Superior Court of the City and County of San Francisco against the Regents, including, specifically, Governor Pete Wilson in his capacity as a regent (hereafter collectively the Regents); Molloy identified himself as a taxpayer and a staff reporter and campus editor of the Daily Nexus, and the Daily Nexus identified itself as a student-run newspaper serving the students, faculty, and staff of the University of California, Santa Barbara.
Molloy asserted a first cause of action against the Regents, based on a violation of the Bagley-Keene Open Meeting Act—specifically, its notice and open-and-public-meeting requirements. He alleged, in substance, that, prior to the noticed and open and public meeting of July 20, 1995, the Regents made a collective commitment or promise to approve SP-1 and SP-2, at a “meeting” of at least a quorum
Molloy asserted a second cause of action, against the Governor, based on a violation of the California Public Records Act. He alleged his 28 requests to the Governor seeking disclosure of public records relating to telephone communications by the Governor with other regents, and the Governor’s refusal of such requests. For a right of action, he relied on section 6258: “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records” under this act.
As for the Bagley-Keene Open Meeting Act cause of action, Molloy sought relief including: (1) a declaration that the Regents violated the act by making a collective commitment or promise to approve SP-1 and SP-2, prior to the noticed and open and public meeting of July 20, 1995, at the alleged secret serial “meeting” of at least a quorum of the board’s members, including the Governor; (2) a declaration that the Regents’ approval of the resolutions at the noticed and open and public meeting of July 20 was null and void; and (3) an injunction prohibiting the Regents from implementing either of the resolutions on the ground that each was null and void.
As for the California Public Records Act cause of action, Molloy sought relief including: (1) a declaration that the Governor violated the act by refusing his 28 requests seeking disclosure of public records relating to telephone communications by the Governor with other regents; and (2) an injunction requiring the Governor to disclose such public records.
The Regents demurred to the complaint, the board as an entity and the Governor as one of its members each doing so in separate but complementary submissions. They objected that the Bagley-Keene Open Meeting Act cause of action did not state sufficient facts. In pertinent part, they argued to the effect that, under the facts alleged, Molloy did not have any right of action pursuant to section 11130.3(a) because he commenced his action almost six months after the provision’s thirty-day statute of limitations had run; that that statute of limitations precluded the doctrine of fraudulent concealment; and that, even if the statute did not do so, the doctrine would nevertheless not be available in this case. They made no mention, however, as to whether he had any right of action pursuant to section 11130(a). They similarly objected that the California Public Records Act cause of action did
The superior court issued an order overruling the demurrers. It rejected the Regents’ objection that the Bagley-Keene Open Meeting Act cause of action did not state sufficient facts. In pertinent part, it concluded to the effect that section 11130.3(a)’s 30-day statute of limitations did not preclude the doctrine of fraudulent concealment, and that the question whether the doctrine was available in this case implicated facts beyond the complaint, and hence could not be resolved on demurrer. It also rejected their objection that the California Public Records Act cause of action did not state sufficient facts. In pertinent part, it concluded to the effect that the question whether any public record relating to telephone communications by the Governor with other regents was exempt from disclosure under the deliberative-process, legislative, official-information, or Governor’s correspondence privilege implicated facts beyond the complaint, perhaps entailing review of such records in camera, and hence could not be resolved on demurrer.
Challenging the superior court’s order overruling their demurrers, the Regents petitioned the Court of Appeal for the First Appellate District for a writ of mandate, the board as an entity and the Governor as one of its members doing so in a joint submission. In conjunction therewith, they requested a stay of all proceedings below pendente lite.
Division Three of the Court of Appeal for the First Appellate District, to which the matter was assigned, summarily denied the Regents’ petition. It also refused their stay request.
The Regents petitioned us for review in a joint submission by the board and the Governor. We denied their application.
The Regents then answered the complaint in separate but complementary submissions by the board and the Governor. Among other things, as for the Bagley-Keene Open Meeting Act cause of action, they impliedly denied that Molloy had any right of action pursuant to section 11130.3(a); in addition, they expressly raised, as an affirmative defense, that any right of action that he may have had thereunder he had no longer because he commenced his action almost six months after the provision’s thirty-day statute of limitations had run; but they did not make any pertinent mention of any right of action that he may have had pursuant to section 11130(a). As for the
The Regents moved for summary adjudication as to the Bagley-Keene Open Meeting Act cause of action in a joint submission by the board and the Governor. Evidently, the superior court issued an order denying the motion.
After taking Molloy’s deposition, the Regents moved for summary judgment, again in a joint submission by the board and the Governor. On the Bagley-Keene Open Meeting Act cause of action, they claimed that there was no triable issue of material fact and that they were entitled to judgment as a matter of law. In support, they argued that, under the undisputed facts, Molloy did not have any right of action pursuant to section 11130(a) because, in effect, the provision extends only to present and future actions and violations and not past ones. They also argued that, under the undisputed facts, he did not have any right of action pursuant to section 11130.3(a) because he commenced his action almost six months after the provision’s thirty-day statute of limitations had run; that that statute of limitations precluded the doctrine of fraudulent concealment; and that, even if the statute did not do so, the doctrine was nevertheless not available in this case. The undisputed facts referred to above included the following, derived directly or indirectly from Molloy’s deposition: Both before and after July 20, 1995, Molloy obtained information bearing on the existence or nonexistence of a collective commitment or promise by the Regents to approve SP-1 and SP-2, prior to the noticed and open and public meeting of July 20, at the alleged secret serial “meeting” of at least a quorum of the board’s members, including the Governor; both before and after July 20, he published such information in articles that he authored or contributed to. Among such information was this: On July 20, prior to the vote, Regent Gomez told Molloy, as Molloy himself admitted: “They’re set. They’ve been set for a while.” Also on July 20, following the vote, Regent Gomez told Molloy, again according to Molloy’s own admission: “Staged. Ten-fifteen [sic] every single time. Old boys versus the new progressives.” On the California Public Records Act cause of action, they similarly claimed that there was no triable issue of material fact and that they were entitled to judgment as a matter of law. In support, they argued that any public record relating to telephone communications by the Governor with other regents was exempt from
The superior court issued an order denying the Regents’ summary judgment motion. It concluded that they were not entitled to judgment as a matter of law on Molloy’s Bagley-Keene Open Meeting Act cause of action. Without considering any right of action pursuant to section 11130(a), it determined, in substance, that there was a triable issue of material fact whether he had a right of action pursuant to section 11130.3(a). It recognized that he commenced his action almost six months after the provision’s thirty-day statute of limitations had run. Nevertheless, it believed that that statute of limitations did not preclude the doctrine of fraudulent concealment. It also believed that the doctrine might be available in this case to toll the statute through the filing of the complaint almost six months later. Because of its conclusion on Molloy’s Bagley-Keene Open Meeting Act cause of action, it did not reach his California Public Records Act cause of action.
Challenging the superior court’s order denying their summary judgment motion, the Regents petitioned the Court of Appeal for the First Appellate District for a writ of mandate in a joint submission by the board and the Governor.
In advance of any peremptory writ of mandate, Division Three of the Court of Appeal for the First Appellate District, to which this matter too was assigned, caused issuance of an alternative writ. Subsequently, in an opinion not certified for publication, it rendered judgment discharging the alternative writ and denying the petition insofar as it sought a peremptory writ. At the threshold, it impliedly concluded that the superior court’s order denying the Regents’ summary judgment motion, and its resolution of the underlying statutory-construction issues, were subject to independent review. On the merits, it upheld the superior court’s order. It concluded that the Regents were not entitled to judgment as a matter of law on Molloy’s Bagley-Keene Open Meeting Act cause of action. It determined, in substance, that, under the undisputed facts, he had a right of action pursuant to section 11130(a). It believed that that right of action extends to past actions and violations as well as present and future ones. But it also determined, in substance, that, under the undisputed facts, he did not have any right of action pursuant to section 11130.3(a). It assumed for purpose of analysis only that that provision’s 30-day statute of limitations did not preclude the doctrine of fraudulent concealment. But, unlike the superior court, it believed that the doctrine was not available to toll the statute through the filing of the complaint almost
The Regents petitioned us for review in a joint submission by the board and the Governor. We granted their application. We now reverse.
II
Before we address the questions arising under the Bagley-Keene Open Meeting Act relating to the rights of action granted by section 11130(a) and section 11130.3(a), we must review the provisions of the act that bear on the answers.
A
Tn 1967, the Legislature enacted the Bagley-Keene Open Meeting Act, as it was subsequently entitled, in order to govern the conduct of state bodies and to impose on such bodies various obligations, including that they must generally give prior notice of their meetings and must generally cause such meetings to be open and public. (Stats. 1967, ch. 1656, § 122, p. 4026 et seq.)
In section 11120, the act has declared since its enactment as follows: “It is the public policy of this state that public agencies exist to aid in the conduct of the people’s business and the proceedings of public agencies be conducted openly so that the public may remain informed. HQ . . . [I]t is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly.” (Stats. 1967, ch. 1656, § 122, p. 4026.) In 1981, it was amended to declare in addition: “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (Stats. 1981, ch. 968, § 4, p. 3683.)
In section 11122, the act, as originally enacted, provided: “ ‘[Ajction taken’ means a collective decision made by the members of a state agency,
Since its enactment, the act has generally required state bodies to give prior notice of their meetings, pursuant to section 11125 (Stats. 1967, ch. 1656, § 122, p. 4026), and to cause such meetings to be open and public, pursuant to section 11123 (Stats. 1967, ch. 1656, § 122, p. 4026).
In section 11130, the act, as originally enacted, provided: “Any interested person may commence an action either by mandamus or injunction for the purpose of stopping or preventing violations or threatened violations of’ the act “by members of’ a “state agency.” (Stats. 1967, ch. 1656, § 122, p. 4028.) In 1969, it was amended: “Any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “or to determine the applicability of’ the act “to actions or threatened future action by members of’ a “state agency.” (Stats. 1969, ch. 494, § 1, p. 1106.) In 1981, it was further amended to replace “agency” (ibid.) with “body” (Stats. 1981, ch. 968, § 20, p. 3693). In 1997, without substantial change in any pertinent part, it was amended into its present form under its present designation as section 11130(a). (Stats. 1997, ch. 949, § 13.)
Section 11130.3 was not part of the act as originally enacted. In 1985, it was added (Stats. 1985, ch. 936, § 1, p. 2963 et seq.), and has never been amended. It provides:
“(a) Any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of obtaining a judicial determination that an action taken by a state body in violation of’ the act’s notice or open-and-public-meeting requirement is “null and void .... Any action seeking such a judicial determination shall be commenced within 30 days from the date the action was taken. Nothing in this section shall be construed to prevent a state body from curing or correcting an action challenged pursuant to this section.
“(b) An action shall not be determined to be null and void if any of the following conditions exist:
“(1) The action taken was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness or any contract, instrument, or agreement related thereto.
*522 “(2) The action taken gave rise to a contractual obligation upon which a party has, in good faith, detrimentally relied.
“(3) The action taken was in substantial compliance with [the act’s notice and open-and-public-meeting requirements].
“(4) The action taken was in connection with the collection of any tax.”
Similarly, section 11130.7 was not part of the act as originally enacted. In 1980, it was added to provide; “Each member of a state agency who attends a meeting of such agency in violation of any provision of’ the act, “with knowledge of the fact that the meeting is in violation thereof, is guilty of a misdemeanor.” (Stats. 1980, ch. 1284, § 16, p. 4341.) In 1981, it was amended to replace “agency” {ibid.) with “body” (Stats. 1981, ch. 968, § 22, p. 3693). In 1997, it was amended into its present form: “Each member of a state body who attends a meeting of that body in violation of any provision of’ the act, “and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under” the act, “is guilty of a misdemeanor.” (Stats. 1997, ch. 949, § 14.)
B
The first question before us is whether the right of action granted by section 11130(a) under the Bagley-Keene Open Meeting Act extends only to present and future actions and violations and not past ones.
Focusing on section 11130(a) itself, we are of the opinion that the answer is affirmative: the provision’s right of action does indeed extend only to present and future actions and violations and not past ones.
Section 11130(a) states that “any interested person may commence an action ... for the purpose of stopping or preventing violations or threatened violations of’ the act “by members of’ a “state body,” or “to determine” the act’s “applicability ... to actions or threatened future action” by such persons.
Section 11130(a)’s right of action depends for its extent on whether it refers to past and/or present and/or future actions and violations.
Plainly, section 11130(a)’s right of action points toward the future: “[A]ny interested person may commence an action ... for the purpose of . . . preventing . . . threatened violations of’ the act “by members of’ a “state
Almost as plainly, section 11130(a)’s right of action also points toward the present: “[A]ny interested person may commence an action ... for the purpose of stopping . . . violations” of the act “by members of’ a “state body,” or “to determine” the act’s “applicability ... to actions” by such persons (Italics added.). In this regard, it covers violations and actions that are occurring, including both discrete instances and continuing patterns or practices.
By contrast, section 11130(a)’s right of action does not point toward the past, plainly or otherwise.
The language of section 11130(a) argues against the past. Insofar as it deals with “preventing threatened violations” of the act and “determining” its “applicability to threatened future action,” its focus is explicitly on the future. Insofar as it deals with “stopping violations” of the act and “determining” its “applicability to actions,” its focus is implicitly on the present. In the phrase “stopping violations,” it shows its present orientation by usage. One speaks of “stopping” present “violations,” but not past ones. In the phrase “determining applicability to actions,” it shows its present orientation by context. Without express adjectival modification, the noun “actions” may indeed be subject to implied modification. Its textual surroundings are the present and the future, without any reference or allusion, express or implied, to the past. Had the Legislature meant to include the past, it would have made itself plain, likely through the phrase “actions taken,” which, in the singular, appears, time and again, throughout the act. (See §§ 11122, 11125.2, 11125.5, subds. (c) & (d), 11125.6, subd. (d), 11126, subds. (a)(2) & (f)(8), 11126.3, subd. (f), 11130.3.) It did not do so. To be sure, it might have used “actions” without modification to refer to the past as well as the present. But any evidence that it actually did is no more than conjecture and speculation.
The operation of section 11130(a) brings the argument against the past to a persuasive conclusion. Insofar as it concerns itself with the present by “stopping violations” of the act and “determining” its “applicability to actions,” it offers effective relief. The same is true insofar as it concerns itself with the future by “preventing threatened violations” of the act and “determining” its “applicability to threatened future action.” It would be otherwise if it concerned itself with the past. One cannot “stop” or “prevent”
Looking beyond section 11130(a) itself to its legislative history, we find confirmation for our conclusion that the provision’s right of action extends only to present and future actions and violations and not past ones.
Recall that, in section 11130, the act, as originally enacted in 1967, provided: “Any interested person may commence an action either by mandamus or injunction for the purpose of stopping or preventing violations or threatened violations of’ the act “by members of’ a “state agency.” (Stats. 1967, ch. 1656, § 122, p. 4028.)
In 1969, Member of the Assembly William T. Bagley, one of the authors of the eponymous act, authored Assembly Bill No. 2297, 1969 Regular Session (hereafter sometimes Assembly Bill No. 2297).
As introduced, Assembly Bill No. 2297, in pertinent part, would have added section 11131, to provide: “Any interested person may commence an action by mandamus, or injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “or to determine the applicability of’ the act “to the past or threatened future action or actions of’ a “legislative body.” (Assem. Bill No. 2297 (1969 Reg. Sess.) Apr. 8, 1969, § 1, p. 1, italics added.) It referred to past actions, although not to past violations. In addition, it would have added section 11132, which referred to past violations as well as past actions, to provide, in pertinent
As subsequently amended in the Assembly, Assembly Bill No. 2297, in pertinent part, would have amended section 11130 to provide: “Any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “or to determine the applicability of’ the act “to the past or threatened future action or actions by members of’ a “state agency.” (Assem. Amend, to Assem. Bill No. 2297 (1969 Reg. Sess.) May 21, 1969, § 1, p. 2, italics added.) It continued to refer to past actions. In addition, it would have added section 11131, which was section 11132 renumbered— but without any reference whatsoever to the past, having suffered deletion of its provisions for quo warranto actions and the setting aside of action taken in violation of the act.
As amended in the Senate for the first time, Assembly Bill No. 2297, in pertinent part, now provided in section 11130: “Any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “or to determine the applicability of’ the act “to actions or threatened future action by members of’ a “state agency.” (Sen. Amend, to Assem. Bill No. 2297 (1969 Reg. Sess.) June 6, 1969, § 1, p. 1.) It no longer referred to past actions, having lost the adjective “past” through deletion.
As amended in the Senate for the second and final time, Assembly Bill No. 2297, in pertinent part, continued to provide in section 11130 as it had provided previously, without any reference to past actions or even to the past at all. (Sen. Amend, to Assem. Bill No. 2297 (1969 Reg. Sess.) June 13, 1969, § 1, p. 1.)
In the years following 1969, section 11130 was amended twice, once in 1981 (Stats. 1981, ch. 968, § 20, p. 3693) and again in 1997 into its present form under its present designation as section 11130(a) (Stats. 1997, ch. 949, § 13). Neither time was it modified to refer to past actions or violations, or indeed to the past itself in any way. That it was not given a past orientation cannot reasonably be attributed to a belief on the part of the Legislature that
Section 11130(a)’s legislative history, which is set out above, confirms our conclusion that the provision’s right of action extends only to present and future actions and violations and not past ones. The only reference to the past existed in what was not enacted. No such reference exists in what was.
In sum, section 11130(a) grants a right of action: (1) to stop or prevent a present or future violation of the act—but not to reach back to a past one; and (2) to determine whether the act is applicable to a present or future action—but not a past one.
C
The second question before us is whether the right of action granted by section 11130.3(a) under the Bagley-Keene Open Meeting Act is limited by the 30-day statute of limitations contained therein.
Focusing on section 11130.3(a) itself, we are of the opinion that the answer is affirmative: the provision’s right of action is indeed limited by the 30-day statute of limitations contained therein.
It follows, therefore, that, in enacting section 11130.3, the Legislature had as its purpose to authorize the nullification and voidance of an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement, but only under strict conditions. Its purpose evidently arose as it struck a balance between two, at least potentially conflicting, objectives—to permit the nullification and voidance of certain actions, but not to imperil the finality of even such actions unduly. It accordingly chose to craft a powerful weapon, but to restrict its range.
Section 11130.3(a)’s 30-day statute of limitations does not allow any extension of time expressly. It is as it appears to be: “Any action seeking . . . a judicial determination” that “an action taken by a state body in violation of’ the act’s notice or open-and-public-meeting requirement is “null and void” “shall be commenced within 30 days from the date the action was taken.” (Italics added.)
Neither does section 11130.3(a)’s 30-day statute of limitations allow any extension of time by implication.
Had it fixed the inception of its limitations period not as of the date of the taking by the state body of the action to be challenged, but instead by
But section 11130.3(a)’s 30-day statute of limitation simply does not fix the inception of its limitations period by reference, without any date, to discovery or even accrual. It does so, rather, as of the date of the taking of the action in question. This fact is significant. Indeed, it is controlling. Section 11130.3 concerns itself exclusively with actions that have been taken in violation of the act’s notice or open-and-public-meeting requirement. Which means actions occurring outside of the light of day. Which in turn means actions implicating fraud in effect if not fraud in intent. Because section 11130.3 so concerns itself, it would have been expected to allow some kind of extension of time by some kind of means. An example presents itself in subdivision (d) of section 338 of the Code of Civil Procedure, which fixes the inception of its three-year limitations period for an action for fraud by reference, without any date, to discovery thereof. That section 11130.3(a) does not allow any type of extension of time by any type of means in express terms practically bars the conclusion that it does so by implication.
In 1984, at the request of Member of the Assembly Lloyd G. Connelly, the Attorney General issued an opinion in which he concluded, as pertinent here, that, in order not to imperil the finality of actions taken by state bodies, the Legislature, in originally enacting the act, had not intended that any violation of any of its requirements would result in the nullification and voidance of any such action. (“Specific Agenda” Requirements of the Bagley-Keene Open Meeting Act, 67 Ops.Cal.Atty.Gen. 84, 88-93 (1984).)
In 1985, Member of the Assembly Connelly authored Assembly Bill No. 214, 1985-1986 Regular Session (hereafter sometimes Assembly Bill No. 214) in order to add section 11130.3.
As introduced, Assembly Bill No. 214 provided in section 11130.3, in positive fashion, that an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement would be null and void, unless one or more of certain conditions were satisfied, specifically, those relating to substantial compliance (as it would ultimately be phrased) and contractual obligation. (Assem. Bill No. 214 (1985-1986 Reg. Sess.) Jan. 9, 1985, § 2, p. 3.) It granted any interested person a right of action to seek nullification and voidance. (Ibid.) But it demanded that such a person had to commence an action within 60 days from the date the action in question was taken. (Id., § 2, pp. 3-4.)
As subsequently amended in the Assembly, Assembly Bill No. 214 continued to provide in section 11130.3, in positive fashion, that an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement would be null and void, unless one or more of certain conditions were satisfied, specifically, those relating to substantial compliance (as it would ultimately be phrased), contractual obligation, and now also evidence of indebtedness. (Assem. Amend, to Assem. Bill No. 214 (1985-1986 Reg. Sess.) Mar. 7, 1985, § 1, pp. 3-4.) It continued to grant any interested person a right of action to seek nullification and voidance. (Id., § 2, p. 4.) And it continued to demand that such a person had to commence an action within 60 days from the date the action in question was taken. (Ibid.)
As amended in the Senate for the second time, Assembly Bill No. 214 continued to provide in section 11130.3, in negative fashion, that an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement would not be null and void if one or more of certain conditions were satisfied, specifically, those relating to substantial compliance (as it was now phrased), evidence of indebtedness, and contractual obligation. (Sen. Amend, to Assem. Bill No. 214 (1985-1986 Reg. Sess.) June 13, 1985, § 1, pp. 2-3.) It now made plain that an action could be cured or corrected, and would not be null and void if it were. (Id., § 1, p. 2.) It continued to grant any interested person a right of action to seek nullification and voidance. (Ibid) But—of particular concern here—it now demanded that such a person had to commence an action within 30 days from the date the action in question was taken, a period that was fully one-half of the original one of 60 days. (Ibid)
As amended in the Senate for the third and final time, Assembly Bill No. 214 continued to provide in section 11130.3, in negative fashion, that an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement would not be null and void if one or more of certain conditions were satisfied, specifically, those relating to substantial compliance, evidence of indebtedness, contractual obligation, and now also the collection of a tax. (Sen. Amend, to Assem. Bill No. 214 (1985-1986 Reg. Sess.) June 19, 1985, § 1, p. 2.) It continued to make plain that an action could be cured or corrected, and would not be null and void if it were. (Ibid) It also continued to grant any interested person a right of action to seek nullification and voidance. (Ibid) And—again of particular concern—it continued to demand that such a person had to commence an action within 30 days from the date the action in question was taken. (Ibid)
Section 11130.3’s legislative history, which is set out above, confirms our conclusion that the provision’s right of action is indeed limited by the 30-day
In sum, section 11130.3(a)’s right of action is indeed limited by the 30-day statute of limitations contained therein.
III
We now turn to the decision of the Court of Appeal denying the Regents’ petition for writ of mandate insofar as it sought a peremptory writ against the superior court in challenge to its order denying their summary judgment motion.
At the threshold, the Court of Appeal impliedly concluded that the superior court’s ruling on the summary judgment motion, and its resolution of the underlying statutory-construction issues, were subject to independent review. It was right. “Rulings on such motions”—including, as here, denials—“are examined de novo.” (Buss v. Superior Court (1997) 16 Cal.4th 35, 60 [65 Cal.Rptr.2d 366, 939 P.2d 766].) The same is true of the resolution of such issues, inasmuch as they are pure questions of law. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271 [32 Cal.Rptr.2d 807, 878 P.2d 566].)
A
We first consider whether the Court of Appeal correctly determined that, under the undisputed facts, Molloy did not have any right of action
It is accepted by all that the Regents are indeed subject to the act. That is as it must be. Section 92030 of the Education Code so declares in its terms. Subdivision (g) of section 9 of article IX of the California Constitution itself states that the Regents must generally cause their meetings to be open and public, impliedly as for the former and expressly as for the latter, “with . . . notice requirements as may be provided by statute,” including the act.
We are of the view that the Court of Appeal’s determination was in fact correct. Section 11130.3(a) grants an interested person a right of action to seek the nullification and voidance of an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement only if he commences an action “within 30 days from the date the action was taken.” Molloy did not commence his action seeking the nullification and voiding of the Regents’ approval of SP-1 and SP-2 at the noticed and open and public meeting of July 20, 1995, within 30 days, but waited almost 7 months, until February 16, 1996.
Against our conclusion, Molloy argues that the Regents should be equitably estopped from raising section 11130.3(a)’s 30-day statute of limitations as an affirmative defense because, assertedly, they fraudulently concealed his cause of action.
As we have already explained, section 11130.3(a)’s 30-day statute of limitations does not allow any extension of time at least as a general matter.
Molloy argues to the contrary. He claims that section 11130.3(a)’s 30-day statute of limitations does in fact allow an extension of time. We disagree. Our analysis has demonstrated that the provision itself is without express or implied warrant in this regard, and that its legislative history stands in confirmation.
As we shall presently explain, section 11130.3(a)’s 30-day statute of limitations does not allow any extension of time even through operation of the doctrine of fraudulent concealment.
“Statute of limitations” is the “collective term . . . commonly applied to a great number of acts,” or parts of acts, that “prescribe the periods beyond which” actions “may not be brought.” (3 Witkin, Cal. Procedure, supra, Actions, § 405, p. 509.) The typical one has as its purpose the “ ‘protection of the defendant from stale claims of a dilatory plaintiff.’ ”
The doctrine of fraudulent concealment, which is judicially created (see, e.g., Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 931; Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203, 210-213 [30 P.2d 39] (per curiam)', Kane v. Cook, supra, 8 Cal. at pp. 458-461), limits the typical statute of limitations. “[T]he defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations . . . .” (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99 [132 Cal.Rptr. 657, 553 P.2d 1129]; accord, e.g., Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 931; Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at p. 210; Kane v. Cook, supra, 8 Cal. at pp. 458-461; see, e.g., Pashley v. Pacific Elec. Ry. Co., supra, 25 Cal.2d at pp. 229-230, 231-232.) In articulating the doctrine, the courts have had as their purpose to disarm a defendant who, by his own deception, has caused a claim to become stale and a plaintiff dilatory. (E.g., Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 931; Sanchez v. South Hoover Hospital, supra, 18 Cal.3d at p. 100; see, e.g., Pashley v. Pacific Elec. Ry. Co., supra, 25 Cal.2d at pp. 229-230, 231-232; Kane v. Cook, supra, 8 Cal. at p. 458.) The doctrine arose in courts of equity and not in courts of law. (See, e.g., Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at pp. 210-212; Kane v. Cook, supra, 8 Cal. at p. 458; see also Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th at p. 931 [noting that the doctrine is an “equitable principle”].) Its genesis, however, did not prove to be its confines. It was early extended to be available “in all cases” (Kane v. Cook, supra, 8 Cal. at p. 461; accord, e.g., Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at p. 211), that is to say, in actions at law as well as suits in equity (Kane v. Cook, supra, 8 Cal. at pp. 458-461). It enters into a statute of limitations, if at all, from without, by being “read into” it judicially. (Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at p. 212.)
To our mind, section 11130.3(a)’s 30-day statute of limitations precludes the doctrine of fraudulent concealment. The typical statute of limitations admits of the application of the doctrine of fraudulent concealment. The purposes of each are consistent the one with the other. That of the typical statute is to protect a defendant from a stale claim of a dilatory plaintiff. That of the doctrine is to disarm a defendant who, by his own
It is true that section 11130.3(a)’s 30-day statute of limitations would not preclude the doctrine of fraudulent concealment if the statute contained the doctrine in terms or at least by implication. But it does not do so. The statute is altogether devoid of reference or even allusion to the doctrine. In pertinent part, it states no more, and no less, than that an interested person seeking the nullification and voidance of an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement “shall . . . commenced” an action “within 30 days from the date the action was taken.”
It is also true that section 11130.3(a)’s 30-day statute of limitations would not preclude the doctrine of fraudulent concealment if the doctrine could be “read into” the statute judicially. (Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at p. 212.) But it cannot be. The purpose that the Legislature had in enacting section 11130.3 was to authorize the nullification and voidance of an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement, but only under strict conditions. One of those strict conditions—the result of its deliberate choice—is that an interested person must commence an action within 30 days of the date the action in question was taken. For us judicially to read the doctrine of fraudulent concealment into section 11130.3(a)’s 30-day statute of limitations would upset the legislative balance. When, as here, that balance is not constitutionally offensive, we may not do so. (See Scheas v. Robertson (1951) 38 Cal.2d 119, 125-126 [238 P.2d 982]; Muller v. Muller (1960) 179 Cal.App.2d 815, 819 [4 Cal.Rptr. 419].)
Again Molloy argues to the contrary, that section 11130.3(a)’s 30-day statute of limitations does not in fact preclude the doctrine of fraudulent concealment.
Broadly, Molloy cites language in various decisions stating or implying that the doctrine is available “in all cases.” (Kane v. Cook, supra, 8 Cal. at p.
More narrowly, Molloy focuses on the general ends of the act, which, as stated in section 11120, are to cause “actions” of state bodies to be “taken openly,” and to cause their “deliberation” to be “conducted openly,” in order to keep “[t]he people . . . informed so that they may retain control over the instruments they have created.” He claims that the preclusion of the doctrine of fraudulent concealment is inconsistent on the ground that it restricts the nullification and voidance of an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement. But in focusing on the act’s general ends, he ignores its specific means, which, as pertinent, authorize the nullification and voidance of such an action only under strict conditions, including that an interested person must commence an action within 30 days of the date the action in question was taken. The issue whether general ends prevail over specific means in case of conflict need not be resolved here. That is because there is no conflict. The act’s general ends were stated in the act as originally enacted before it was amended to authorize the nullification and voidance of any actions whatsoever. Hence, they can hardly be deemed in conflict with the specific means authorizing such nullification and voidance, albeit only under strict conditions, including a limitations period of 30 days.
B
We next consider whether the Court of Appeal correctly determined that, under the undisputed facts, Molloy did indeed have a right of action pursuant to section 11130(a) for his Bagley-Keene Open Meeting Act cause of action.
Molloy argues to the contrary, that he did indeed have a right of action pursuant to section 11130(a) to obtain the relief that he seeks. He says that that provision grants an interested person a right of action that extends to past actions and violations as well as present and future ones. But, as we have explained, the provision itself shows, and its legislative history confirms, that that is not so. He then says that we should deem the provision to grant such a person such a right of action, lest we tolerate the absence of a remedy against an action taken by a state body in violation of the act’s notice or open-and-public-meeting requirement. So to deem means, in actuality, to amend—which belongs to the Legislature alone. In any event, a remedy does, in fact, exist, in the form of prevention by means of the threat of criminal liability under section 11130.7 against individual members of the state body. He complains that, without the right of action for which he contends, such persons “would be cloaked with immunity” of the most absolute sort. That is altogether false. Section 11130.7 stands in direct and complete contradiction.
C
In view of the foregoing, it follows that the Court of Appeal erred by upholding the superior court’s denial of the Regents’ summary
Because of its error on Molloy’s Bagley-Keene Open Meeting Act cause of action, the Court of Appeal did not reach his California Public Records Act cause of action. Because of its error on the former, the superior court too had not reached the latter. The superior court should be allowed an opportunity to address the issue in the first instance. Molloy so argues. The Regents have no objection.
IV
For the reasons stated above, we conclude that we must reverse the judgment of the Court of Appeal denying the Regents’ petition for writ of mandate insofar as it sought a peremptory writ, and must remand the cause to that court with directions to remand it in turn to the superior court with directions to conduct proceedings not inconsistent with the views expressed herein.
It is so ordered.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
Except as noted, all references to sections are to the Government Code.
Subsequently, at the November 5, 1996, General Election, the voters approved an initiative constitutional amendment that was designated on the ballot as Proposition 209. The measure added section 31 to article I of the California Constitution, which declares in subdivision (a) that “[t]he State”—including the University of California—“shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Nine is a quorum for a regular meeting of the Regents, twelve for a special one. (Bylaws of Regents of U. of Cal., bylaw No. 16.3.)
In 1953, prior to the Bagley-Keene Open Meeting Act, the Legislature had enacted the Ralph M. Brown Act (hereafter the Brown Act), as it was subsequently entitled, which is set out at section 54950 et seq., in order to govern the conduct of legislative bodies of local agencies and to impose on such bodies various obligations, including that they must generally give prior notice of their meetings and must generally cause such meetings to be open and public. (Stats. 1953, ch. 1588, § 1, p. 3269 et seq.) The two statutes are similar in some respects and dissimilar in others.
In subdivision (a) of section 54960 (hereafter section 54960(a)), the Brown Act states that “any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of’ the act “by members of the legislative body of a local agency or to determine the applicability of’ the act “to actions or threatened future action of the legislative body . . . .” Some Court of Appeal decisions assume or assert that the provision extends to past actions and violations as well as present and future ones—albeit, apparently, only as to past actions and violations that are related to present or future ones. (See, e.g., California Alliance for Utility etc. Education v. City of San Diego (1997) 56 Cal.App.4th 1024, 1029,1030,1031 [65 Cal.Rptr.2d 833]; Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781, 784-785, 798 [22 Cal.Rptr.2d 641]; Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 99-100 [214 Cal.Rptr. 561]; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 520-521 [195 Cal.Rptr. 163]; Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 823 -824 & 823, fn. 6 [176 Cal.Rptr. 342]; Common Cause v. Stirling (1981) 119 Cal.App.3d 658, 661-662, 665 [174 Cal.Rptr. 200]; Torres v. Board of Commissioners (1979) 89 Cal.App.3d 545, 547-551 [152 Cal.Rptr. 506] [not citing section 54960 or section 54960(a)].) None, however, actually considers whether it does so. “A decision, of course, is not authority for what it does not consider.” (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 348 [79 Cal.Rptr.2d 308, 965 P.2d 1178].) Be that as it may, there is no indication that any assumption or assertion in these decisions that section 54960(a) possesses a past orientation gave rise to a belief on the part of the Legislature that section 11130(a) possesses one as well.
Compare Paxson v. Board of Educ. (1995) 276 III.App.3d 912, 923-924 [213 III.Dec. 288, 658 N.E.2d 1309, 1316] (Dealing with a similar open meeting act in Illinois authorizing the nullification and voidance of an action taken by a public body at a meeting in violation of the act’s requirements, but only if a person commences an action therefor within 45 days from the date of the meeting in question; “[W]e . . . note” that the nullification and voidance of “governmental actions is indeed a powerful and drastic remedy that carries with it the enormous potential for upsetting the stability of government. Consequently, we find that the restriction placed on the remedy” in the form of a “very short and definite period of time in which to bring” an “action” is “more than reasonable.”); City of Prescott v. Town of Chino Valley (1989) 163 Ariz. 608, 614 [790 P.2d 263], decision affirmed in its entirety and opinion vacated in part not pertinent here (1990) 166 Ariz. 480 [803 P.2d 891] (characterizing as a “heavy penalty” the nullification and voidance of an action taken by a public body at a meeting in violation of the requirements of a similar open meeting act in Arizona).
Compare Kennedy v. Powell (La. Ct. App. 1981) 401 So.2d 453, 457 (concluding that the 60-day statute of limitations of a similar open meeting act in Louisiana authorizing the nullification and voidance of an action taken by a public body in violation of the act’s requirements did not allow any extension of time, even against the possibility that “public officials” might “frustrate” the act’s “purpose ... by concealing action taken in secret for a period of sixty days": “We think the legislature felt the need to create certainty in the affairs of a [public] body . . . outweighed any danger that public officials would intentionally, or fraudulently attempt to circumvent the rights afforded the public [under the act], [1] . . . [H] To accept the premise that the right to sue for [nullification and voidance] is suspended until such time as an aggrieved party has knowledge of the action taken could lead to a state of
Because of the result that we reach, we need not, and do not, resolve other issues presented herein. For example, we pass over whether the doctrine of fraudulent concealment would be available in this case if it were not precluded by section 11130.3(a)’s 30-day statute of limitations. We do the same as for whether the earlier asserted collective commitment or promise by the Regents to approve SP-1 and SP-2 at the alleged secret serial “meeting” of at least a quorum of the board’s members, including the Governor, which was alleged to be in violation of the act’s notice and open-and-public-meeting requirements and to be subject to nullification and voidance on that basis, could “taint” the board’s later approval of the resolutions at the noticed and open and public meeting of July 20, 1995, which was not alleged to be in violation of the act’s notice or open-and-public-meeting requirement or to be subject to nullification and voidance on that basis.
In support of Ms argument, Molloy cites certain Court of Appeal decisions that he claims hold that section 54960(a) grants an interested person a right of action under the Brown Act that extends to past actions and violations as well as present and future ones. (See, ante, at p. 526, fn. 6.) He does so in vain. At most, they merely assume or assert that it does. (Ibid.)
At the outset, the superior court must vacate its order denying the Regents’ summary judgment motion. Then, if it concludes that there is no triable issue of material fact and that they are entitled to judgment as a matter of law on Molloy’s California Public Records Act cause of action, it must grant their motion. If it does not so conclude, it must order summary adjudication in their favor on his Bagley-Keene Open Meeting Act cause of action.
As noted in the text, although the Regents approved SP-2 on a vote of 15 to 10, they approved SP-1 on a vote of 14 to 10 with 1 abstention.