Center for Local Government Accountability v. City of San Diego

Filed 5/31/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CENTER FOR LOCAL GOVERNMENT D068432
ACCOUNTABILITY,
Plaintiff and Appellant,
(Super. Ct. No. 37-2014-00030567-
v. CU-JR-CTL)
CITY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Reversed and remanded with directions.
Law Office of Craig A. Sherman and Craig A. Sherman for Plaintiff and
Appellant.
Jan I. Goldsmith, City Attorney, and Walter C. Chung, Deputy City Attorney for
Defendants and Respondents.
INTRODUCTION
The Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.),1 governs the
conduct of local legislative bodies and imposes upon them various obligations, including
giving prior notice of meetings and making the meetings open to the public. (Regents of
University of California v. Superior Court (1999) 20 Cal. 4th 509, 520, fn. 5.) To these
ends, section 54954.3, subdivision (a), of the Brown Act requires the agenda of every
regular meeting of a local legislative body to include an opportunity for members of the
public to address the legislative body on matters within its purview, but not otherwise on
its agenda for action.2 For purposes of this appeal, we refer to this opportunity as a
nonagenda public comment period.
As one mechanism for ensuring compliance with the Brown Act, section 54960,
subdivision (a), authorizes an interested person to commence a lawsuit by mandamus,
injunction or declaratory relief to determine the applicability of the Brown Act "to
ongoing actions or threatened future actions of the legislative body, or to determine the
applicability of [the Brown Act] to past actions of the legislative body, subject to Section
54960.2." (Italics added.) Section 54960.2 establishes several preconditions to filing a
1 Further statutory references are also to the Government Code unless otherwise
stated.
2 Section 54954.3 provides: "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."
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lawsuit under section 54960, subdivision (a), including submission of a cease and desist
letter to the offending legislative body. (§ 54960.2, subd. (a)(1).)
The City of San Diego and its city council (City) are subject to the Brown Act,
including section 54954.3. (§§ 54951, 54952, subd. (a).) The Center for Local
Government Accountability (Center) filed this litigation to determine whether the City's
adherence to a long-standing ordinance providing for only one nonagenda public
comment period over the course of its two-day regular weekly meetings violated section
54954.3. The trial court dismissed the Center's complaint after sustaining the City's
demurrer to it without leave to amend. The Center appeals.
To resolve the Center's appeal, we must decide three questions. First, we must
decide whether the qualifying phrase "subject to Section 54960.2" in section 54960,
subdivision (a), applies only to litigation to determine the Brown Act's applicability to
past actions or also to litigation to determine the Brown Act's applicability to ongoing or
threatened future actions. We must further decide whether the City's continued
adherence to a long-standing ordinance providing for one nonagenda public comment
period over the course of its two-day regular weekly meetings constitutes a past action or
an ongoing or threatened future action. Finally, we must decide whether the City's
postlitigation adoption of an ordinance providing for a nonagenda public comment period
on each day of its two-day regular weekly meetings moots this litigation.
We conclude the qualifying phrase "subject to Section 54960.2" in section 54960,
subdivision (a), applies only to litigation to determine the Brown Act's applicability to
past actions. In addition, we conclude the City's continued adherence to a long-standing
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ordinance providing for one nonagenda public comment period over the course of its
two-day regular weekly meetings constitutes an ongoing or threatened future action, not a
past action. Finally, we conclude the City's postlitigation adoption of an ordinance
providing for a nonagenda public comment period on each day of its two-day regular
weekly meetings may moot this action if there is no reasonable expectation the City will
adopt another ordinance resuming its former practice. Nonetheless, as explained below,
there is a reasonable possibility the Center can amend its complaint to at least state a
viable claim for declaratory relief. Consequently, we conclude the court erred in
sustaining the City's demurrer without leave to amend and dismissing this action. We,
therefore, reverse the judgment and remand the matter for further proceedings.
BACKGROUND
Except during scheduled recesses, the City holds regular weekly meetings on
Mondays and Tuesdays. In 2001, the City adopted an ordinance providing for the
publication of one consolidated agenda each week with one nonagenda public comment
period docketed for Tuesday mornings. Consistent with this ordinance, at the time the
Center filed this litigation, the City's regular weekly meeting agendas provided for one
nonagenda public comment period on Tuesdays.
In 2014, the Center filed a combined petition for writ of mandate and complaint
for declaratory and injunctive relief (complaint), alleging the City's continued failure to
provide a nonagenda public comment period on Mondays violated section 54954.3,
subdivision (a). The complaint sought a judicial declaration the practice was unlawful.
The complaint also sought an injunction and peremptory writ of mandate directing the
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City to provide a nonagenda public comment period during any regular meeting with a
separate agenda, including its Monday meetings.
The City demurred to the Center's complaint, arguing the complaint was not ripe
for adjudication because the Center did not comply with the preconditions in section
54960.2. The City also argued the complaint was moot because the City had since
adopted an ordinance providing for nonagenda public comment periods on both Mondays
and Tuesdays.
The court sustained the demurrer without leave to amend on the ground the Center
failed to comply with the preconditions in section 54960.2 before filing its complaint.
The court found the preconditions applied not just to litigation alleging past Brown Act
violations, but also to litigation alleging threatened future violations. In addition, the
court questioned whether the Center's complaint actually challenged a threatened future
action rather than the consequences of a past action. Regardless, the court found the
Center's complaint became moot after the City adopted the ordinance providing for
nonagenda public comment periods on both Mondays and Tuesdays. The court
subsequently entered an order dismissing the complaint.
DISCUSSION
Our review in this appeal is de novo, both because the appeal is from a judgment
of dismissal after the court sustained a demurrer without leave to amend and because
resolution of the appeal requires us to interpret a statute. (Audio Visual Services Group,
Inc. v. Superior Court (2015) 233 Cal. App. 4th 481, 489; Luther v. Countrywide
Financial Corp. (2011) 195 Cal. App. 4th 789, 793.) "For purposes of our review, we
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treat the demurrer as admitting all material facts properly pleaded, but not contentions,
deductions, or conclusions of fact or law. [Citations.] We also consider matters that may
be judicially noticed." (Audio Visual Services Group, Inc. v. Superior Court, supra, at
p. 489, fn. 5.)
I
A
Section 54960, subdivision (a), provides in relevant part: "[A]ny interested person
may commence an action by mandamus, injunction, or declaratory relief … to determine
the applicability of [the Brown Act] to ongoing actions or threatened future actions of the
legislative body, or to determine the applicability of [the Brown Act] to past actions of
the legislative body, subject to Section 54960.2." (Italics added.) The City contends the
Legislature intended the qualifying phrase "subject to Section 54960.2" to apply both to
litigation to determine the Brown Act's applicability "to ongoing actions or threatened
future actions" as well as to litigation to determine the Brown Act's applicability "to past
actions." Conversely, the Center contends the Legislature intended the qualifying phrase
to apply only to litigation to determine the Brown Act's applicability to past actions.
The parties support their respective positions with complex arguments regarding
the last antecedent rule and certain exceptions to it. "A longstanding rule of statutory
construction—the 'last antecedent rule'—provides that 'qualifying words, phrases and
clauses are to be applied to the words or phrases immediately preceding and are not to be
construed as extending to or including others more remote.' " (White v. County of
Sacramento (1982) 31 Cal. 3d 676, 680.) The "rule 'is not an absolute and can assuredly
6
be overcome by other indicia of meaning.' " (State ex rel. Bartlett v. Miller (2016) 243
Cal. App. 4th 1398, 1409.) For instance, as the City points out, the qualifying phrase's
separation from the antecedents by a comma is evidence the qualifying phrase applies to
all antecedents. (White v. County of Sacramento, supra, at p. 680.) However, as the
Center points out, the antecedents' separation by the disjunctive "or" is evidence the
antecedents should be treated distinctly. (See ibid.; California School Employees Assn. v.
Governing Bd. of South Orange County Community College Dist. (2004) 124
Cal. App. 4th 574, 584-585.)
Except to note the identified ambiguity in section 54960, subdivision (a), we need
not address the intricacies of the parties' arguments on this point because they are not
dispositive. "The rules of grammar and canons of construction are but tools, 'guides to
help courts determine likely legislative intent. [Citations.] And that intent is critical.
Those who write statutes seek to solve human problems. Fidelity to their aims requires
us to approach an interpretive problem not as if it were a purely logical game, like a
Rubik's Cube, but as an effort to divine the human intent that underlies the statute.' "
(Burris v. Superior Court (2005) 34 Cal. 4th 1012, 1017-1018.)
B
In reviewing questions of statutory interpretation, " ' "our fundamental task is 'to
ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' … We
begin by examining the statutory language because it generally is the most reliable
indicator of legislative intent. We give the language its usual and ordinary meaning, and
'[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the
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plain meaning of the language governs.' … If, however, the statutory language is
ambiguous, 'we may resort to extrinsic sources, including the ostensible objects to be
achieved and the legislative history.' … Ultimately we choose the construction that
comports most closely with the apparent intent of the lawmakers, with a view to
promoting rather than defeating the general purpose of the statute." ' " (Lee v. Hanley
(2015) 61 Cal. 4th 1225, 1232-1233.)
In interpreting the meaning of the qualifying phrase "subject to Section 54960.2,"
we first consider the language of section 54960.2 itself. We do this because section
54960.2 was added to the Brown Act at the same time as the qualifying phrase (Stats.
2012, ch. 732, §§ 1-2) and because "[w]e are required to harmonize the various parts of a
statutory enactment by considering the particular section in the context of the statutory
framework as a whole." (B.H. v. County of San Bernardino (2015) 62 Cal. 4th 168, 189.)
Section 54960.2, subdivision (a), states in relevant part: "[A]ny interested person
may file an action to determine the applicability of this chapter to past actions of the
legislative body pursuant to subdivision (a) of Section 54960 only if all of the following
conditions are met: [¶] (1) The … interested person … first submits a cease and desist
letter … to the clerk or secretary of the legislative body being accused of the violation …
clearly describing the past action of the legislative body and nature of the alleged
violation."3 (Italics added.)
3 The purpose of the cease and desist letter is to allow the legislative body an
opportunity to avoid unnecessary litigation by unconditionally committing to not
repeating the past action without admitting a Brown Act violation. (§ 54960.2, subd. (c).)
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The italicized language, which is peppered throughout section 54960.2,
unambiguously limits the applicability of section 54960.2's preconditions to litigation
challenging past actions. This limitation and our obligation to harmonize the various
parts of a statutory enactment effectively precludes the interpretation of the qualifying
phrase the City advocates. Rather, it compels an interpretation mandating compliance
with the preconditions in section 54960.2 only for litigation to determine the Brown Act's
applicability to past actions of a legislative body.
C
1
The legislative history of the qualifying phrase and section 54960.2 supports this
interpretation. Both the qualifying phrase and section 54960.2 were added to the Brown
Act in 2012 by Senate Bill No. 1003 (SB 1003). (Stats. 2012, ch. 732, §§ 1-2.) The
Legislative Counsel's Digest summarized SB 1003's import as follows: "Existing law
authorizes … any interested person to file an action by mandamus, injunction, or
declaratory relief to, among other things, determine the applicability of the [Brown Act]
to actions or threatened future actions of the legislative body. [¶] This bill would prohibit
… an interested person from filing an action for an alleged violation of the Brown Act for
past actions of a legislative body, unless certain conditions are met, including, but not
limited to, a requirement that the … interested person submit a cease and desist letter to
the legislative body." (Legis. Counsel's Dig., Sen. Bill No. 1003 (2011-2012 Reg. Sess.)
Summary Dig., italics added.)
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" 'The Legislative Counsel's Digest is printed as a preface to every bill considered
by the Legislature.' [Citation.] The Legislative Counsel's summaries 'are prepared to
assist the Legislature in its consideration of pending legislation.' " (Jones v. Lodge at
Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1169.) Therefore, it reasonable to
presume the Legislature enacted the legislation with the intent and meaning expressed in
the Legislative Counsel's Digest. (Id. at p. 1170; California Teachers Assn. v. Governing
Bd. of Rialto Unified School Dist. (1997) 14 Cal. 4th 627, 660-661.)
"Although the Legislative Counsel's summaries are not binding [citation], they are
entitled to great weight." (Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th
at p. 1170.) Here, the italicized language in the Legislative Counsel's Digest fully
supports a conclusion the Legislature intended the preconditions in section 54960.2 to
apply only to litigation to determine the Brown Act's applicability to past actions of a
legislative body.
2
SB 1003's evolution from its introduction to its passage further supports this
conclusion. When the bill was first introduced, it simply amended section 54960,
subdivision (a), to supersede an unpublished appellate court opinion and extend the
statute's application to past actions of a legislative body as well as to current or threatened
future actions. (Sen. Bill No. 1003 (2011-2012 Reg. Sess.) §§ 1-2, as introduced Feb. 6,
2012.) Two months later the bill was amended to add section 54960.2 with its
preconditions to litigation. At that time, section 54960.2 did not include language
limiting compliance with the preconditions to litigation involving past actions. Instead, it
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precluded any litigation under section 54960, subdivision (a), without compliance with
the preconditions. (Sen. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) Apr. 11,
2012.) The language in section 54960.2 limiting compliance with the preconditions to
past actions did not appear until a month later when the bill was amended for a second
time. (Sen. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) May 3, 2012.) The
limiting language remained in section 54960.2 from that point forward. (Assem. Amend.
to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) June 19, 2012; Assem. Amend. to Sen. Bill
No. 1003 (2011-2012 Reg. Sess.) Aug. 13, 2012; Sen. Bill No. 1003 (2011-2012 Reg.
Sess.) as enrolled Aug. 23, 2012.)
Importantly, the Legislature did not add the qualifying phrase to SB 1003 until
after it added the language limiting section 54960.2's preconditions to litigation involving
past actions. (Assem. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) June 19,
2012.) This timing dispels any notion the Legislature ever intended for the qualifying
phrase to be interpreted in the manner the City advocates.
3
Other legislative history documents also support this conclusion. Specifically, the
last Senate analysis of SB 1003 before its passage described the bill's import as follows:
"This bill: [¶] 1. Authorizes … any interested person to file an action, as specified, to
determine the applicability of the Brown Act to a past or ongoing action of a legislative
body. [¶] 2. Prohibits any action to be filed by a[n] … interested person to determine the
applicability of the Brown Act to past actions of a legislative body unless all of the
following requirements are met: [¶] A. The plaintiff submits a cease and desist letter to
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the legislative body, clearly describing the past action and the nature of the alleged
violation." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.
1003 (2011-2012 Reg. Sess.), as amended Aug. 13, 2012, p. 2.) Indeed, the same
description of the bill's import appeared in every legislative analysis prepared after the
Legislature added the qualifying phrase to the bill. (See, e.g., Assem. Com. on Local
Gov., Analysis of Sen. Bill No. 1003 (2011-2012 Reg. Sess.) as amended June 19, 2012,
p. 1; Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 1003 (2011-2012 Reg.
Sess.) as amended June 19, 2012, p. 1; Assem. Floor Analysis, 3d reading analysis of
Sen. Bill No. 1003 (2011-2012 Reg. Sess.) as amended Aug. 13, 2012, p. 1.)
Accordingly, the only reasonable interpretation we may give to the qualifying phrase is
that it requires compliance with the preconditions in section 54960.2 before the filing of
litigation to determine the Brown Act's applicability to past actions, but it does not
require such compliance before the filing of litigation to determine the Brown Act's
applicability to ongoing or threatened future actions.
II
Nevertheless, the City contends the Center was required to comply with the
preconditions in section 54960.2 because the Center's complaint did not challenge an
ongoing or threatened future action. Rather, it challenged the City's past action of
adopting an ordinance providing for only one nonagenda public comment period over the
course of its two-day regular weekly meetings.
We are unpersuaded by this contention because the adoption of the ordinance did
not have a one-time or determinate effect. Instead, the ordinance's effect extended to
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every regular weekly meeting and would have continued extending to every regular
weekly meeting but for the City's postlitigation enactment of another ordinance altering
the City's practice. (See Shapiro v. San Diego City Council (2002) 96 Cal. App. 4th 904,
915 [for purposes of enforcing the Brown Act under section 54960, a present or future
action includes past actions that are not one-time events and are related to present or
future actions].) Thus, we conclude the Center was not required to comply with the
preconditions in section 54960.2 before commencing this litigation.
III
Finally, the City contends its postlitigation adoption of an ordinance providing for
nonagenda public comment periods on both Mondays and Tuesdays necessarily moots
this litigation. We disagree.
"An issue becomes moot when some event has occurred which 'deprive[s] the
controversy of its life.' [Citation.] The policy behind a mootness dismissal is that 'courts
decide justiciable controversies and will normally not render advisory opinions.' "
(Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal. App. 4th 231,
257; accord, Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App. 4th
1559, 1573.) The voluntary cessation of allegedly wrongful conduct destroys the
justiciability of a controversy and renders an action moot unless there is a reasonable
expectation the allegedly wrongful conduct will be repeated. (See Environmental
Defense Project of Sierra County v. County of Sierra (2008) 158 Cal. App. 4th 877, 887;
Pittenger v. Home Sav. & Loan Asso. (1958) 166 Cal. App. 2d 32, 36.)
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At oral argument, the Center's counsel was unable to articulate facts suggesting a
reasonable expectation the City would pass another ordinance resuming its former
practice. Nonetheless, the City's counsel acknowledged the change in the City's practice
for handling nonagenda public comment periods did not equate to a change in the City's
legal position. The City stills consider its two-day regular weekly meetings to be one
continuous meeting, rather than two separate meetings, for Brown Act purposes. The
City also has not conceded its former practice of allowing only one nonagenda public
comment period violated the Brown Act. Thus, the Center may be able to at least plead a
viable claim for declaratory relief. (See Cal. Alliance for Utils. Etc. Educ. v. City of San
Diego (1997) 56 Cal. App. 4th 1024, 1029-1030 [an actual controversy existed entitling
plaintiffs to declaratory relief where the parties disagreed whether the city council's
actions violated the Brown Act, and the court could presume the city would continue
similar practices in light of the city's refusal to concede the violation].) As there is a
reasonable possibility the Center can amend its complaint to state a viable claim, we
conclude the court erred in sustaining the City's demurrer to the Center's complaint
without leave to amend. (Loeffler v. Target Corp. (2014) 58 Cal. 4th 1081, 1100; City of
Dinuba v. County of Tulare (2007) 41 Cal. 4th 859, 865; see also City of Stockton v.
Superior Court (2007) 42 Cal. 4th 730, 747 [as a matter of fairness, a plaintiff who has not
had an opportunity to amend its complaint in response to a demurrer should be allowed
leave to amend unless the complaint shows on its face it is incapable of amendment].)
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DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with
directions to grant the Center leave to file an amended complaint and to conduct further
proceedings consistent with this decision. The Center is awarded its costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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