Ribakoff v. City of Long Beach

Filed 8/24/18; Modified and Certified for Partial Pub. 9/13/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOE RIBAKOFF, B279462
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC610000)
v.
CITY OF LONG BEACH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
Joe Ribakoff, in pro. per., for Plaintiff and Appellant.
Alvarez-Glasman & Colvin, Roger A. Colvin, Vincent C.
Ewing and Araceli Almazan for Defendants and Respondents.
______________________
Joe Ribakoff, a frequent attendee at meetings of the Long
Beach Transit Company Board of Directors, filled out a public
speaker’s card and spoke on agenda item 10 at the board’s
August 24, 2015 meeting for the three minutes allowed each
public speaker on an agenda item. When he rose to speak a
second time on the same agenda item, it was during the board’s
deliberation and voting period. He was not permitted to speak,
and, after a short exchange with the chair of the board, left the
speaker’s podium with the verbal assistance of a Long Beach
Police Officer who routinely provided security for meetings.
Later, Ribakoff filed this action, asking that we reverse the trial
court and determine that the board’s three-minute limit on public
speakers is contrary to state statutes and federal and state free
speech principles. We find neither statutory nor constitutional
violations, and affirm.
FACTUAL BACKGROUND
The cause was tried to the court on August 5 and 8, 2015.
I. Plaintiff’s Case-in-chief
Debra Anne Johnson (Johnson), the Deputy Chief
Executive Officer of the Long Beach Public Transportation
Company (LBTC), has worked for the LBTC since May 2014. She
is familiar with its bylaws and has attended every board meeting
while an employee of LBTC. The LBTC is managed by a board of
directors (Board). At the beginning of the public comment section
of each meeting of the Board, the Board chair “generally
describes the process in which public comment will be accepted,”
including the rules to be followed. Johnson is not aware of any
2
criminal laws being “enforced” at a meeting of the Board; nor
does she recall being present at a meeting at which the Board
voted on amending its rules on comments from the public.
Typically, there are one or two members of the public who
address the Board, either on an item on the agenda, or in the
section of its meetings reserved for general comments by
members of the public. The greatest number of members of the
public who have spoken at a meeting is five. In only two
instances that she recalls has there been “disturbing speech,”
which she described as a member of the public speaking for more
than the allotted three minutes. On these occasions, the Board
concluded its business notwithstanding the interruptions.
The Board held its regular monthly meeting on August 24,
2015, in the Long Beach City Council Council Chamber. Item 10
on the agenda that day concerned coordinating transit fares with
other providers of transit services in Los Angeles County by
adoption of the transit access program (utilizing “TAP cards”) for
patrons of the Long Beach Transit System buses to coordinate
with bus service offered to patrons of other public transit services
in Los Angeles County.
Ribakoff was in attendance, as had been his practice during
the preceding two-and-a-half years. Prior to speaking that
afternoon, Ribakoff had filled out the card required of all
members of the public who wished to address the Board. The
card contained a statement that the speaker would have three
minutes in which to address the Board. Also, prior to Ribakoff
speaking, the Board secretary advised him that he would have
three minutes to address the Board on item 10. Staff members of
the Board, and others invited to speak on item 10, addressed the
Board concerning the item before and after Ribakoff; they were
3
not limited to three minutes each. Thereafter, the Board began
consideration of the matter, with the chair of the Board asking
for “further discussion” among members of the Board, to be
followed by the Board voting on the matter. Although this
statement by the chair was directed to members of the Board,
Ribakoff approached the podium in the meeting room and asked
for permission to speak a second time regarding item 10. The
chair declined Ribakoff’s request and asked Ribakoff to leave the
podium and return to his seat. Counsel for the Board advised
that Ribakoff had used all of the time allocated to him to address
the Board on this agenda item, but that the Board could allow
him additional time if it wished to do so. Although he was not
granted additional time, Ribakoff insisted that he be allowed to
speak. There followed a verbal exchange between him and the
chair, with each talking over the other. Either at the beginning
or during this exchange with the Board chair, Ribakoff moved
from behind the podium and appeared to approach the dais. To
Johnson, the chair became uncomfortable. Another Board
member went to get a City of Long Beach police officer, who
appeared and approached Ribakoff. The officer and Ribakoff had
a conversation, which Johnson did not hear. Following that
conversation, the officer and Ribakoff left the podium area.1
Johnson recalled considering Ribakoff’s actions to be disturbing
because the rules for public speakers, which he violated, had been
clearly stated.
1 After Johnson testified, a video containing the entirety and
excerpts of the proceedings before the Board at its August 24,
2015 meeting was played for the court. The only record of what
appeared on the video is in the “Statement of Tentative Decision,”
which is discussed, post, in footnote 27.
4
II. Ribakoff’s Testimony
Ribakoff had been attending meetings of the Board for over
two-and-a-half years as an interested citizen. In his view, public
transportation is “poor transportation for poor people” and there
is considerable need to improve it. During the years he has been
attending meetings, all of the public speakers have respected the
three-minute rule. There has never been a meeting delayed by a
disturbance created by a member of the public who speaks at a
meeting.
Ribakoff signed up to speak at the August 24, 2015 Board
meeting. He had read the agenda for the meeting online prior to
the meeting and decided to attend as, in his view, most members
of the public in Long Beach did not have access to locations where
TAP cards could be purchased. His intent was to bring to the
attention of the Board what he believed to be the difficulty in
purchasing TAP cards.
He recalled the meeting that day lasted approximately two
hours. With respect to item 10, staff members and
representatives of the Los Angeles County Metropolitan Transit
Authority, who had been invited by the Board to do so, testified.
When it was time for public comment on item 10, Ribakoff spoke
for three minutes, but had not finished what he wanted to say
when his time expired. He was the only speaker to criticize the
program. After he spoke and had returned to his seat, another
speaker disagreed with his statement on lack of availability of
TAP cards. Ribakoff rose to speak a second time because he
wanted to dispute the facts as presented by that speaker.
However, he was not permitted to speak; his microphone was cut
off; and he was invited to speak with the Board’s staff after the
meeting. When he got to his seat, he was approached by a police
5
officer who ordered him out of the room under threat of arrest. A
few minutes later, he returned to the meeting; moments
thereafter the Board voted on item 10.
At the conclusion of the meeting, Ribakoff left the meeting
room and was approached by the same police officer, who told
him that if he spoke out of turn again he would certainly be
arrested. The officer cited Long Beach Municipal Code (LBMC)
2.03.140, also writing that code section on the back of one of his
business cards which he handed to Ribakoff. Ribakoff has not
returned to Board meetings since then because he does not want
to be arrested on what he considers to be a “really vague and
improper law.”
He later attempted to meet with individual Board
members, but was denied contact information for them. He sent
a letter to the Board secretary for distribution to members.
Following that, he met with one Board member who told him she
had never received his letter. In his view, it is pointless to speak
with staff.
In September 2015, Ribakoff spoke by telephone with the
general counsel of the Board, who had been present at the August
meeting, following up on that conversation with a letter in which
Ribakoff made several requests, including that, as an “interim
rule,” “if there are no more than [two] public speakers, . . . each of
them [would have] up to [five] minutes to speak.” He also
described the extant rule for public speakers as
“unconstitutional.”
The Board’s general counsel responded by letter on
September 22, 2015, advising Ribakoff that the Board’s rules for
public speakers were available online, would be printed on the
card that persons wishing to speak would fill out when
6
requesting time to speak at a Board meeting, and were available
with the Board agenda for its meetings; the general counsel also
forwarded a copy of the revised speakers policy, entitled
“Information and Procedures Concerning Conduct at Board of
Directors’ Meetings.” The three-minute limit for each speaker
was not changed.
On cross-examination, Ribakoff acknowledged he had filled
out a speaker’s card, containing the following notice: “Comments
shall be limited to three (3) minutes for all comments, unless
different time limits are set by the Chairperson, subject to the
approval of the Board.”
Ribakoff also acknowledged having spoken for three
minutes on item 10. When he approached the podium later and
asked to speak again, he acknowledged that his request was
denied. In his view, the Board chair interrupted him; he was
trying to speak but his microphone was cut off. Ribakoff
acknowledged he had not filed a claim, either with the City of
Long Beach or with the Board, prior to filing his lawsuit.
III. Defense Case-in-chief
Amy Bodek is the Director of Development Services for the
City of Long Beach. Her responsibilities include overseeing
planning, building code enforcement, and administration. At the
time of these events she was serving as one of the city’s two
representatives on the Board. Bodek was present at the meeting
of the Board on August 24, 2015, which she described as lengthy.
After the Board had had a discussion on item 10 and the chair
called for a vote, Ribakoff, whom she recalled had spoken earlier
for the length of time allocated to each speaker, attempted to
speak again. As he did so, the Board chair “counsel[ed]” him that
7
he had already spoken for his allotted time. Ribakoff again
attempted to speak and the chair told him that his opportunity
had passed. Ribakoff continued to try to speak, and, when the
chair attempted to speak, he interrupted her. At this point,
Bodek got up from her seat and went to get a security guard. In
the City of Long Beach there is a uniform rule that allows each
speaker three minutes to speak on a matter at any public
meeting.
On cross-examination, Bodek testified that staff members
are not subject to the rule limiting speakers to three minutes.
During the approximately two-and-a-half years she has been
attending Board meetings, the number of members of the public
who speak varies; within the last six months there was one
meeting at which five people made public comments on an
agenda item. There was a single occasion on which a speaker
was disruptive in the sense of not complying with the time limits.
In Bodek’s opinion, a public speaker who is being argumentative
during his or her time addressing the Board is not being
disruptive. In her view, being disruptive includes attempting to
speak beyond the allotted three minutes. At the August 2015
meeting there was a disruption of between five to six minutes
that delayed the vote on an agenda item.
PROCEDURAL HISTORY
On February 11, 2016, Ribakoff filed a civil complaint
against the Board, the City of Long Beach, and others,2 in which
2 Ribakoff sued the City of Long Beach, the Long Beach
Transit Company, the LBTC, the LBTC Board of Directors, and
Does 1 to 20, inclusive. The City of Long Beach is the sole
8
he alleged violations of the Tom Bane Civil Rights Act (the Bane
Act; Civ. Code, § 52.1) and the Ralph M. Brown Act (the Brown
Act; Gov. Code, § 54950, et seq.), of his right to freedom of speech
as guaranteed by the United States and California Constitutions
(U.S. Const., 1st Amend., cl. 3; Cal. Const., art. I, § 2), and of a
violation of procedural requirements relating to the Brown Act
contained in article I, section 3, subdivision (b)(7) of the
California Constitution. He also alleged that LBMC 2.03.140 is
“overbroad[,] vague . . . not . . . reasonable[,] . . . not content
neutral, and . . . a prior restraint.”3 He sought declaratory and
shareholder of the Long Beach Transit Company. All defendants
presented a common defense.
3 Although Ribakoff also alleged a violation of Civil Code
section 52, that citation was inapt as section 52 is part of a
different statutory plan, the Unruh Civil Rights Act (Civ. Code,
§ 51 et seq.), which proscribes specified conduct by business
establishments. (See Stamps v. Superior Court (2006) 136
Cal. App. 4th 1441, 1450-1451 and accompanying footnotes.) His
claim for punitive damages under Civil Code section 52,
subdivision (b)(1) was linked to this erroneous Unruh Civil
Rights Act allegation.
Ribakoff alleged, but presented neither fact nor cogent
argument to support, a violation of Government Code section
54953, subdivision (a), which requires that “[a]ll meetings of the
legislative body of a local agency shall be open and public, and all
persons shall be permitted to attend any meeting of [that body,
with exceptions as provided].” Nor is there any cogent discussion
of this claim in his opening brief on appeal. We therefore deem
this claim waived. (Reyes v. Kosha (1998) 65 Cal. App. 4th 451,
466, fn. 6; Tan v. California Fed. Sav. & Loan Assn. (1983) 140
Cal. App. 3d 800, 811.)
9
injunctive relief, monetary relief in an unspecified amount, a civil
penalty of $25,000, and attorney fees.
Ribakoff’s complaint also alleged the Board had two
“speech code rules” governing public meetings, each of which was
enacted without public hearing or debate. He alleged the first
such code, in effect at the time of the August 24, 2015 meeting,
applied only to “public comment speakers” (as distinct from
Board members, staff members, and invited guests, none of
whom was subject to time limits in addressing the Board) and
was strictly enforced: Speakers exceeding the three-minute limit
were labeled disruptive, and expelled from the meeting “on pain
of arrest under LBMC 2.03.140.”
Ribakoff alleged the rules applicable to public comment
speakers were changed, again allegedly without vote of the Board
and “without findings demonstrating the interest protected by
[these rules] and the need for protecting that interest.” The
newer speech code, which Ribakoff attached to his complaint, is
headed “Information and Procedures Concerning Conduct at
Board of Directors’ Meetings.” This speech code allows up to
three minutes for each member of the public to speak on an
agenda item. If adjustment is required based on the total time
allotted for public comment and the number of speakers, Ribakoff
alleged the time allotted to each speaker is reduced.4 No time
limit is stated in the code for staff members to address the Board.
Ribakoff also alleged the new code allows the Board chair to
4 This provision reads: “Three-minute time limit for each
speaker unless the Board specifies a different time limit based on
the time allotted for the item and the number of speakers.”
10
“censor and even remove a member of the public . . . if [the chair]
decides that you are ‘rude, boisterous, or profane . . . .’”5
Ribakoff alleged each version of the speech code constitutes
a “content based prior restraint.”
Addressing his particular circumstances, Ribakoff alleged
he was present at the September 29, 20156 meeting of the Board,
spoke in opposition to item 10, and was not allowed to speak later
in the meeting. Ribakoff also alleged no other speaker spoke in
opposition and that several Board members spoke without time
restriction, as did persons invited to the meeting by the Board
and as did staff to the Board.
Ribakoff filed motions for preliminary injunction on
March 9 and March 21, 2016. On April 1, the trial court
continued these motions to April 21 and set the final status
conference and trial dates. Following a hearing on the motions
for preliminary injunction, the court took the matters under
submission, denying them on April 26, 2016.
Defendants filed their answer on April 7, 2016, denying all
allegations and asserting several affirmative defenses, including
5 This provision of the September 2015 version of the code
provides: “Persons demonstrating rude, boisterous or profane
behavior will be called to order by the Chair. If such conduct
continues, the Chair may call a recess, requesting the removal of
such person(s) from the Council Chamber, adjourn the meeting or
take some other appropriate action.”
6 This date is certainly a typographical error. Ribakoff
testified that he had not attended any meetings of the Board
since August 24, 2015. It is clear from Ribakoff’s trial testimony
and argument that the meeting he intended to reference took
place on August 24, 2015.
11
that Ribakoff had failed to comply with the Government Tort
Claims Act (Gov. Code, § 900 et seq.) prior to filing the lawsuit.7
At the conclusion of the trial on August 8, 2016, the trial
judge made an oral announcement of his decision, filing a
Statement of Tentative Decision on September 8, 2016. Ribakoff
filed a request for clarification on September 22, 2016. The trial
court entered its judgment on October 4, 2016. There is no
indication in the record on appeal that the trial court specifically
responded to Ribakoff’s request.
On December 8, 2016, Ribakoff filed his timely notice of
appeal.
CONTENTIONS
Ribakoff raises several sets of contentions in his appeal.
First, he raises three standing claims: (a) He has standing to
challenge the “legality” of the Bane Act and of the Brown Act;
(b) his standing to assert equitable claims under the Government
Claims Act is not dependent upon first having filed a claim with
the government agencies he later sued; and (c) he may challenge
the Board’s speech code revised in September 2015, which was
never applied to him, as well as the earlier version of the speech
code applied to him at the August 24, 2015 Board meeting.
Second, he contends the speech code and the events which
occurred at the August 24, 2015 meeting of the Board violated his
rights under the Bane Act and the Brown Act.
7 Defendants refer to the statute as the California Tort
Claims Act; however, as explained in City of Stockton v. Superior
Court (2007) 42 Cal. 4th 730, 741, the correct name for these
statutes is the Government Claims Act.
12
Third, he contends the trial court erred in not finding that
the two versions of the Board’s speech code and LBMC 2.03.140
violate both Government Code section 54954.3, subdivision (b),
and the First Amendment to the United States Constitution,
facially and as applied.
Fourth, he contends the trial court violated article 1,
section 3 of the California Constitution when it limited an “access
right[]” (access by the public to public meetings) by adopting the
September 2015 version of the speech code without having made
“constitutionally mandated findings.”8
8 Ribakoff includes other claims in his opening brief, but does
so either merely by citing a statute, or by making a declarative
statement, in each circumstance without cogent argument. (E.g.,
his claims that the speech codes violate art. I, § 2(a) of the Cal.
Const. and that there were violations of Civ. Code, §§ 47 and 52,
and Gov. Code, § 54957.9.) Each of these claims is waived
because Ribakoff has not met his burden as appellant to establish
reversible error by cogent argument and appropriate citation to
authority. (Keyes v. Bowen (2010) 189 Cal. App. 4th 647, 655-656;
Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154
Cal. App. 4th 547, 556-557.)
Ribakoff also makes one evidentiary contention on appeal,
that the trial court erred in rendering its judgment by relying in
part on the video of the August 24, 2015 Board meeting without
having admitted it into evidence. Ribakoff errs as, with his
consent, the video was admitted into evidence on the first day of
trial.
13
DISCUSSION
I. Standards for Review of Ribakoff’s Claims
“In reviewing a judgment based upon a statement of
decision following a bench trial, we review questions of law de
novo. (Cuiellette v. City of Los Angeles (2011) 194 Cal. App. 4th
757, 765 . . . .) We apply a substantial evidence standard of
review to the trial court’s findings of fact. (Niko v. Foreman
(2006) 144 Cal. App. 4th 344, 364 . . . (Foreman).) Under this
deferential standard of review, findings of fact are liberally
construed to support the judgment and we consider the evidence
in the light most favorable to the prevailing party, drawing all
reasonable inferences in support of the findings. (Citizens
Business Bank v. Gevorgian (2013) 218 Cal. App. 4th 602, 613 . . .
(Gevorgian).)
“A single witness’s testimony may constitute substantial
evidence to support a finding. (Gevorgian, supra, 218
Cal.App.4th at p. 613.) It is not our role as a reviewing court to
reweigh the evidence or to assess witness credibility. (Foreman,
supra, 144 Cal.App.4th at p. 365.) ‘A judgment or order of a
lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its
correctness.’ (In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130,
1133 . . . .) Specifically, ‘[u]nder the doctrine of implied findings,
the reviewing court must infer, following a bench trial, that the
trial court impliedly made every factual finding necessary to
support its decision.’ (Fladeboe v. American Isuzu Motors Inc.
(2007) 150 Cal. App. 4th 42, 48 . . . .)” (Thompson v. Asimos (2016)
6 Cal.App.5th 970, 981.)
14
“[A]n appellant must do more than assert error and leave it
to the appellate court to search the record and the law books to
test his claim. The appellant must present an adequate
argument including citations to supporting authorities and to
relevant portions of the record.” (Yield Dynamics, Inc. v. TEA
System Corp., supra, 154 Cal.App.4th at p. 557.) Even when
error is demonstrated, the judgment will not be reversed unless it
is “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal. 2d 818, 836; see Cal.
Const., art. VI, § 13.)
“‘A trial court rendering a statement of decision under Code
of Civil Procedure section 632 is required only to state ultimate
rather than evidentiary facts. A trial court is not required to
make findings with regard to detailed evidentiary facts or to
make minute findings as to individual items of evidence. Only
where a trial court fails to make findings as to a material issue
which would fairly disclose the determination by the trial court
would reversible error result. Even though a court fails to make
a finding on a particular matter, if the judgment is otherwise
supported, the omission is harmless error unless the evidence is
sufficient to sustain a finding in favor of the complaining party
which would have the effect of countervailing or destroying other
findings. A failure to find on an immaterial issue is not error.
[Citation.] In issuing a statement of decision, the trial court need
not address each question listed in a party’s request. All that is
required is an explanation of the factual and legal basis for the
court’s decision regarding such principal controverted issues at
trial as are listed in the request. [Citation.]’ (Nunes Turfgrass,
Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal. App. 3d 1518,
15
1525 . . . ; [see] People v. Casa Blanca Convalescent Homes, Inc.
(1984) 159 Cal. App. 3d 509, 524-525 . . . ; 7 Witkin, Cal. Procedure
[(4th ed. 1997)] Trial, § 411.)” (Kazensky v. City of Merced (1998)
65 Cal. App. 4th 44, 67-68.)
When constitutional provisions and statutes are at issue,
we independently review their meaning. (People ex rel. Lockyer v.
Shamrock Foods Co. (2000) 24 Cal. 4th 415, 432; Redevelopment
Agency v. County of Los Angeles (1999) 75 Cal. App. 4th 68, 74;
Plunkett v. Spaulding (1997) 52 Cal. App. 4th 114, 126.) We also
review de novo the application of a constitutional provision or
statute to undisputed facts. (Lozada v. City and County of San
Francisco (2006) 145 Cal. App. 4th 1139, 1149; Pettus v. Cole
(1996) 49 Cal. App. 4th 402, 405-406.) De novo review applies in
particular to cases raising First Amendment concerns, i.e., we
independently decide whether the action, statute or ordinance
violates the First Amendment to the United States Constitution.
(In re George T. (2004) 33 Cal. 4th 620, 631; McCoy v. Hearst
Corp. (1986) 42 Cal. 3d 835, 842; Berry v. City of Santa Barbara
(1995) 40 Cal. App. 4th 1075, 1082; accord, Bose Corp. v.
Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511 [104
S. Ct. 1949, 80 L. Ed. 2d 502].)
II. The Government Claims Act
The Government Claims Act requires that prior to filing
suit to recover monetary damages from a governmental entity, a
prospective plaintiff must file a proper claim with that entity and
allow it time to consider its merits (with exceptions not relevant
to the present case). Claims that do not seek “money or damages”
and those in which the “primary purpose” is for declaratory or
injunctive relief are not subject to this pre-litigation filing
16
requirement. (Gov. Code, §§ 905, 905.2; Loehr v. Ventura County
Community College Dist. (1983) 147 Cal. App. 3d 1071, 1079.)
Ribakoff did not file a claim of any type with any defendant
before filing his complaint, which included prayers for monetary
damages as well as for equitable (declaratory and injunctive)
relief. Defendants asserted non-compliance with the Government
Claims Act as the first affirmative defense in their answer. On
the first day of trial, when the issue of Ribakoff’s failure to file a
claim prior to filing his lawsuit was addressed, Ribakoff offered to
dismiss his claims for monetary relief, conceding that those
claims were barred by the Government Claims Act.9 No ruling
on that offer appears in the record.
At the close of Ribakoff’s case in chief, the defense made a
motion for judgment under Code of Civil Procedure section
631.8.10 The trial judge granted defendants’ motion in part,
9 Although Ribakoff offered to waive all claims for money
damages prior to beginning trial as noted in the text and his
opening brief on appeal acknowledges that waiver, he
nevertheless contends he may continue to seek “the statutory
penalty.” There is some authority suggesting that a civil penalty
of $25,000 is recoverable for violations of the Bane Act (see CACI
No. 3066 Directions for Use), but no appellate case decided by a
California court has so held. As Ribakoff’s unilateral waiver in
the trial court was unconditional, his attempt to reclaim his
request for the statutory penalty would be unavailing were he to
prevail in this appeal.
10 A motion under Code of Civil Procedure section 631.8 may
be made in a non-jury trial by a party after the opposing party
completes the presentation of its case in chief. The judge, sitting
as trier of fact, may weigh the evidence and order judgment in
favor of the moving party. (Alpert v. Villa Romano Homeowners
Assn. (2000) 81 Cal. App. 4th 1320, 1327.)
17
dismissing Ribakoff’s claims for monetary damages because he
had not complied with the Government Claims Act. The trial
continued, concluding with judgment for the defense on all causes
of action.
Anticipating an argument by defendant in this appeal,
Ribakoff contends he was not required to comply with the
Government Claims Act to proceed on his non-monetary claims
under the Bane Act because, in seeking relief under that statute,
his “primary purpose was equitable.”11
In their appellate brief, defendants overlook both that the
trial court granted their motion under Code of Civil Procedure
section 631.8 only in part, and that Ribakoff had represented
earlier in trial proceedings that his primary purpose in bringing a
claim under the Bane Act (as well as with respect to his other
claims for relief) was equitable.
In order to make its ruling, the trial court necessarily
accepted Ribakoff’s representation of his stated purposes. And,
as Ribakoff points out, the case upon which defendants rely on
appeal, Gatto v. County of Sonoma (2002) 98 Cal. App. 4th 744,
supports Ribakoff’s position. Thus, in Gatto, the Court of Appeal
reasoned that Gatto’s claims (under the Unruh Civil Rights Act)
were principally monetary in nature and therefore subject to the
pre-filing requirements of the Government Claims Act.12 (Gatto,
11 Ribakoff correctly points out that there is no Government
Claims Act pre-filing requirement with respect to his cause of
action under the Brown Act as that act does not provide for
monetary relief, but “only provides equitable remedies.”
12 In Gatto, the Court of Appeal discusses the relationship
between the Unruh Civil Rights Act and the Bane Act. We need
only be concerned in the present case with that court’s holding
18
supra, at p. 760.) The converse of that holding, that when the
principal purpose is not monetary (and, also when no monetary
relief is sought) is also correct, i.e., under those circumstances,
the filing of a claim is not a condition precedent to filing suit
against a governmental agency. (Gov. Code, §§ 905 [“all claims
for money or damages against local public entities” (italics
added)], 911.2 [claims, subject to exceptions not relevant here,
first must be presented within a specified time limit (six months
or a year of accrual, depending on the nature of the claim)],
§ 945.4 [“no suit for money or damages may be brought against a
public entity on a cause of action for which a claim is required to
be presented” (italics added)]; State of California v. Superior
Court (2004) 32 Cal. 4th 1234, 1239 [failure to comply with these
conditions precedent bars filing a lawsuit against the
governmental entity]; City of San Jose v. Superior Court (1974)
12 Cal. 3d 447, 454; Canova v. Trustees of Imperial Irrigation
Dist. Employee Pension Plan (2007) 150 Cal. App. 4th 1487, 1493.)
Defendants’ argument that the trial court determined that
Ribakoff’s Bane Act claims were barred in their entirety because
the principal purpose was a monetary recovery ignores both
Ribakoff’s concession in the trial court and the trial court’s ruling
on defendants’ Code of Civil Procedure section 631.8 motion.
III. The Bane Act
Ribakoff contends he established a violation of the Bane
Act based on the police officer’s statements to him both inside the
that compliance with the Government Claims Act is required
“where the plaintiff does seek to recover damages from a public
entity and that is his or her chief purpose.” (Gatto v. County of
Sonoma, supra, 98 Cal.App.4th at p. 761.)
19
meeting room and outside following the conclusion of the
August 24, 2015 Board meeting.
There is no evidence of the officer’s statements to Ribakoff
prior to Ribakoff temporarily absenting himself from the
August 24, 2015 meeting. With respect to the declaratory
statement made by the officer to Ribakoff outside the meeting
room following the conclusion of the Board’s meeting, that
Ribakoff would be arrested if Ribakoff violated the Board’s public
speaker time limit at a future meeting, we find such a statement
insufficient to meet the proscription of the Bane Act.13
Civil Code section 52.1, “commonly referred to as the ‘Tom
Bane Act’ or as the ‘Bane Act,’ was enacted in 1987 as part of a
renewed effort to combat the disturbing rise in ‘hate crimes,’ or,
put otherwise, the rising incidence of civil rights violations
motivated by hatred and discrimination.” (Venegas v. County of
Los Angeles (2004) 32 Cal. 4th 820, 845.)
The Bane Act provides in relevant part:
“(a) If a person or persons, whether or not acting under
color of law, interferes by threats, intimidation, or coercion, or
attempts to interfere by threats, intimidation, or coercion, with
13 In his opening brief, Ribakoff discusses the doctrine of
standing to bring a claim under the Bane Act, apparently under
the impression the trial court denied his claim of standing to do
so. We find no such ruling by the trial court in the record. And,
as is clear from Civil Code section 52.1, subdivision (b), quoted in
the text of this opinion following this footnote, the Bane Act
conveys standing to individuals to sue for violations of that act.
(See Bay Area Rapid Transit Dist. v. Superior Court (1995) 38
Cal. App. 4th 141, 144 [Bane Act provides standing to individuals
to assert cause of action for interference based on the conduct
described in Civ. Code, § 52.1].)
20
the exercise or enjoyment by any individual or individuals of
rights secured by the Constitution or laws of the United States,
or of the rights secured by the Constitution or laws of this state,
[specified law enforcement officials] may bring a civil action for
injunctive and other appropriate equitable relief [and monetary
damages] . . . .
“(b) Any individual whose exercise or enjoyment of rights
secured by the Constitution or laws of the United States, or of
rights secured by the Constitution or laws of this state, has been
interfered with, or attempted to be interfered with, as described
in subdivision (a), may institute and prosecute in his or her own
name and on his or her own behalf a civil action for damages, . . .
injunctive relief, and other appropriate equitable relief . . . .”
(Civ. Code, § 52.1, subds. (a), (b).)
From its inception, the purpose of the Bane Act has been to
target unlawful conduct motivated by discriminatory animus that
interferes with the victim’s enjoyment of statutory or
constitutional civil rights. (Venegas v. County of Los Angeles,
supra, 32 Cal.4th at p. 846.)
Ribakoff argues he should have prevailed on his Bane Act
claim based on the circumstances that “he was threatened with
arrest.” We review the facts in evidence based on the substantial
evidence standard, discussed, ante.
The facts concerning this matter consist of Ribakoff’s
testimony, a declaration by the general counsel for the Board, the
video of the relevant portions of the meeting and the business
card of the police officer on which he wrote the citation to a
section of the LBMC. Ribakoff testified he was ordered to leave
the meeting room by the officer, admittedly because he had
gotten into a verbal contest with the chair of the Board when she
reminded him he had already spoken for three minutes and was
21
now interrupting the deliberations of and voting by the Board,
followed by two contacts with the police officer.
There is no testimony as to why, if an order to leave the
meeting room was given, Ribakoff returned to it before agenda
item 10 was voted on. The trial court may well have discounted
any inference to be drawn from the circumstance that Ribakoff
had left the room based on the fact that he returned prior to the
conclusion of the meeting without any untoward result.
It was in Ribakoff’s second contact with the officer, after
the meeting had concluded and outside the meeting room, that
Ribakoff testified the officer warned him he would be arrested if
he violated the Board’s speech rules at a future meeting.
In finding no violation of the Bane Act, the trial court
necessarily concluded that these facts were insufficient to meet
Ribakoff’s burden. We agree there is no substantial evidence to
support a violation of the Bane Act. Factually, the “threat” made
was that if Ribakoff violated the rules applicable to public
speakers at Board meetings, he could expect to be arrested.
Thus, the statement was expressly conditioned on Ribakoff
violating a rule for public speakers of which Ribakoff was well
aware from his prior attendance at meetings and his completing
the speaker’s card on which the rule is written.
With respect to Ribakoff’s argument that this warning has
deterred him from attending any other meetings of the Board,
Ribakoff omits the fact that he received a letter from the Board’s
general counsel on or shortly after September 22, 2015, in which
the lawyer invited him to return to meetings. The lawyer for the
Board wrote: “You are welcome to attend the Board . . . meetings
and are invited to participate in matters before [it], subject to the
attached Information and Procedures Concerning Conduct at
22
Board . . . [m]eetings. Thank you for your interest and
commitment to public transportation.”
With these facts as a basis, the interaction between the
officer and Ribakoff does not support a determination that there
was a violation of this statute. The Bane Act proscribes conduct
that interferes, by threats, intimidation or coercion, with the
exercise or enjoyment by an individual of rights secured by the
federal or state constitutions. The statement by the officer was a
statement that if Ribakoff violated the law—if he demanded to
speak in violation of the speakers’ time limits—he would be
subject to arrest. That is not, without more, an intimidating
statement or a threat. Nor, as discussed, post, does it impinge on
a right secured by either the federal or state constitutions.
Ribakoff’s argument on appeal is essentially that because
Ribakoff disagrees with the Board’s rule limiting members of the
public to three minutes in addressing the Board on any agenda
item, he feels intimidated and will not return to a meeting
because he will be subject to arrest. What Ribakoff is actually
arguing is that he should not be bound by the Board’s rules
limiting public speakers to three minutes on any agenda item.
Thus, his objection is to the time limit rule rather than to the
officer’s statement to him. And, it is Ribakoff’s own disregard for
this time limit and his subjective feeling that create his fear—not
the officer’s warning of the consequences if he does so.
Ribakoff is construing the officer’s statement that Ribakoff
may expect to be arrested if he violates the law without
considering the condition precedent to any arrest: that Ribakoff
violate the Board’s speech rule. The officer did not “threaten”
Ribakoff with violence, but with arrest if he violated the law.
Ribakoff’s contention is based on a misinterpretation of the
23
officer’s words—which are conditional—and ignores the essential
requirement of proof to prevail on a claim under the Bane Act:
here, that what the officer said constituted a threat to commit a
violent act.
Thus, both the statute, quoted, ante, and the cases we now
discuss, require that to prevail on a cause of action under the
Bane Act, a plaintiff must show that the defendant interfered
with or attempted to interfere with the plaintiff's legal right by
threatening or committing violent acts. (Austin B. v. Escondido
Union School Dist. (2007) 149 Cal. App. 4th 860, 881-882; see
generally Jones v. Kmart Corp. (1998) 17 Cal. 4th 329, 334.)
Establishing a violation of the Bane Act requires more than a
statement such as that made by the officer. There must be an
evidentiary showing of threatening conduct independent of the
alleged interference or violation of a civil right. (Shoyoye v.
County of Los Angeles (2012) 203 Cal. App. 4th 947, 959; see Allen
v. City of Sacramento (2015) 234 Cal. App. 4th 41, 67 [“There are
two distinct elements for a [Civ. Code, §] 52.1 cause of action. A
plaintiff must show (1) intentional interference or attempted
interference with a state or federal constitutional or legal right,
and (2) the interference or attempted interference was by threats,
intimidation or coercion”], citing Jones v. Kmart Corp., supra, at
p. 334.)
In Doe v. State of California (2017) 8 Cal.App.5th 832, the
court stated, “Here, assuming agents of the [defendant]
threatened to arrest/prosecute [the plaintiff] if he failed to
register as a sex offender, the [plaintiffs] did not allege those
agents engaged in independently threatening (or intimidating,
coercive) conduct apart from the threats to arrest/prosecute him.
Moreover, the evidence shows that [the plaintiff] could have
24
determined his legal duties regarding registration as a sex
offender; State agents did nothing to prevent him from exercising
his legal rights. Under the circumstances, the [defendant’s]
sharing of [the plaintiff’s] information with local law enforcement
does not constitute ‘“threat, intimidation, or coercion”’ for
purposes of Civil Code section 52.1. [Citation.] Accordingly, the
[plaintiffs] have not established a probability of prevailing on
their Bane Act claims. (Id. at p. 843.)
“‘Speech alone is not sufficient to support an action brought
pursuant to subdivision (a) or (b) [of Civil Code section 52.1],
except upon a showing that the speech itself threatens
violence . . . and that the person threatening violence had the
apparent ability to carry out the threat.’” (Shoyoye v. County of
Los Angeles, supra, 203 Cal.App.4th at pp. 958-959.)
Here, nothing the officer said to Ribakoff meets the test of
this statute. The trial court correctly concluded there was no
violation of the Bane Act.
IV. The Brown Act and First Amendment Claims
Ribakoff contends, because the Board’s speech rules apply
only to members of the public and limit any speech by a member
of the public to a specified time for any particular agenda item,
each such rule is a content based rule proscribed by the Brown
Act and by the free speech clause of the First Amendment to the
United States Constitution.
Because Ribakoff interweaves his arguments under the
Brown Act with his free speech claims, and with a claim that
LBMC 2.03.140 is also flawed, we address these claims together.
25
A. Relevant Facts
The only evidence in the record of the speech code
applicable at the August 24, 2015 meeting of the Board at which
Ribakoff spoke was set out on the card which each speaker
completed prior to speaking. The card states this rule as follows:
“Comments shall be limited to three (3) minutes for all
comments, unless different time limits are set by the
Chairperson, subject to the approval of the Board.” When
Ribakoff attempted to speak a second time on item 10, the record
indicates the chair reminded him he had already used the three
minutes allowed to him under the rule. The general counsel for
the Board then advised the chair the Board had the power to
allow him additional time. No additional time was granted;
Ribakoff and the chair spoke over each other; the microphone at
the speaker’s location was shut off; a police officer arrived and
spoke to Ribakoff, who then left the podium and, later, the
meeting room, returning prior to the conclusion of the meeting.
The record does contain the revised speakers rule, put in
place in September 2015. The September 2015 iteration of this
rule contains a statement of the time limitation on public
speakers almost identical to that applied at the August 24, 2015
meeting.
B. Standing
Ribakoff contends the trial court ruled he did not have
standing to bring this cause of action, and in so ruling, erred.
While, during trial, the court did comment on the issue of
Ribakoff’s standing under the Brown Act, it appears from both
the Statement of Tentative Decision and the Judgment the court
entered that the court ultimately determined that Ribakoff did
26
have standing. We nevertheless briefly discuss Ribakoff’s
argument with respect to the Brown Act before addressing his
more problematic claim of standing to assert his constitution-
based claims.
1. Brown Act Standing
Ribakoff’s standing to assert a claim under the Brown Act
is clear. Thus, the Brown Act “is intended to ensure the public’s
right to attend the meetings of public agencies[,] . . . to facilitate
public participation in all phases of local government
decisionmaking and to curb misuse of the democratic process by
secret legislation of public bodies.” (International
Longshoremen’s & Warehousemen’s Union v. Los Angeles Export
Terminal, Inc. (1999) 69 Cal. App. 4th 287, 293.)
Implementing its purposes, the Brown Act contains a broad
authorization for citizen standing. Government Code section
54960, subdivision (a) provides: “The district attorney or 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 Brown Act]
by members of the legislative body of a local agency or to
determine the applicability of [the Brown Act] . . . to past actions
of the legislative body, subject to Section 54960.2 . . . .”14 The
14 The phrase “legislative body of a local agency” is broadly
construed to include “[t]he governing body of a local agency or
any other local body created by state or federal statute.” (Gov.
Code, § 54952, subd. (a).) It also includes “A commission,
committee, board, or other body of a local agency . . . created by
. . . formal action of a legislative body.” (Id., subd. (b).)
Defendants are such entities.
27
breadth of this legislative statement of standing is illustrated in
McKee v. Orange Unified School Dist. (2003) 110 Cal. App. 4th
1310 (McKee), in which that appellate court upheld the standing
of a plaintiff who was neither a resident nor a taxpayer in Orange
County to obtain an injunction to require the defendant local
school district to comply with multiple provisions of the Brown
Act. It was sufficient that he be a taxpayer/citizen of the State of
California. (Id. at pp. 1314-1316.)15 We conclude Ribakoff has
standing in this case to assert his Brown Act claims.
2. Standing to Assert Constitutional Claims—
Facial Challenge
With respect to Ribakoff’s contentions that the speech rules
of the Board violate his First Amendment rights, both on their
15 McKee was decided under a prior version of Government
Code section 54960. In 2012 the Legislature added section
54960.2 and inserted a reference to this new statute in section
54960 of the Government Code. (Stats 2012, ch. 732, §§ 1, 2.)
The new statute made the right to sue for a violation of the
Brown Act contingent upon the prospective plaintiff first
submitting a cease and desist letter to “the legislative body being
accused of the violation.” (Gov. Code, § 54960.2, subd. (a)(1).) If
that body did not take formal action as required by the statute
within a specified period of time, the individual may file suit.
(Gov. Code, § 54960.2, subd. (c).) In this case, Ribakoff provided
notice to the Board substantially complying with this statute
prior to filing suit. Thus, Ribakoff had standing to bring this
litigation. (See Center for Local Government Accountability v.
City of San Diego (2016) 247 Cal. App. 4th 1146, 1156 [compliance
with Gov. Code, § 54960.2 is required prior to filing suit alleging
violation of Gov. Code, § 54960 with respect to a “past action” of a
legislative body].)
28
face and as applied, different considerations must be evaluated.
A challenge to a statute, ordinance, or rule, may be either facial
or as applied. A facial challenge considers only the text of the
measure itself, not its application to the particular circumstances
encountered by the individual. (Dillon v. Municipal Court (1971)
4 Cal. 3d 860, 865.) The party challenging the measure must
demonstrate that its “‘provisions inevitably pose a present total
and fatal conflict with applicable constitutional prohibitions.’”
(Arcadia Unified School Dist. v. State Dept. of Education (1992) 2
Cal. 4th 251, 267, quoting Pacific Legal Foundation v. Brown
(1981) 29 Cal. 3d 168, 181.) The party challenging the measure
cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the
particular application of the statute. (Arcadia, supra, at p. 267,
quoting Pacific Legal Foundation, supra, at p. 180.)
Only a statute that is substantially overbroad may be
invalidated on its face. (City of Houston, Texas v. Hill (1987) 482
U.S. 451, 457 [107 S. Ct. 2502, 96 L. Ed. 2d 398]; see Williams v.
Garcetti (1993) 5 Cal. 4th 561, 578.) The burden to establish the
validity of such a challenge is on the plaintiff. Further,
“‘[a]pplication of the overbreadth doctrine . . . is, manifestly,
strong medicine. It has been employed . . . sparingly and only as
a last resort.’” (Williams, supra, at p. 577, citing Broadrick v.
Oklahoma (1973) 413 U.S. 601, 613 [93 S. Ct. 2908, 37 L. Ed. 2d
830]; accord, Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d
805, 814 [all presumptions and intendments favor the validity of
statutes, and they will be upheld unless their unconstitutionality
clearly and unmistakably appears].) To support a determination
of facial unconstitutionality, voiding the provision in its entirety,
the proponent must establish that the provisions challenged
29
“‘“inevitably pose a present total and fatal conflict with applicable
constitutional prohibitions.”’” (Tobe v. City of Santa Ana (1995) 9
Cal. 4th 1069, 1084.)
The same principles apply to the Board’s speech code and
ordinances as apply to statutes. (See Sturgeon v. Bratton (2009)
174 Cal. App. 4th 1407, 1419.)
“‘In interpreting [the provision being challenged], we apply
the usual rules of statutory construction: “We begin with the
fundamental rule that our primary task is to determine the
lawmakers’ intent. [Citation.] . . . To determine intent, ‘“The
court turns first to the words themselves for the answer.”’
[Citations.] ‘If the language is clear and unambiguous there is no
need for construction, nor is it necessary to resort to indicia of the
intent of the Legislature (in the case of a statute) . . . .’”
[Citation.] We give the language of the statute its “usual,
ordinary import and accord significance, if possible, to every
word, phrase and sentence in pursuance of the legislative
purpose. A construction making some words surplusage is to be
avoided.”’ (Kane v. Hurley (1994) 30 Cal. App. 4th 859, 862 . . . .)”
(Sturgeon v. Bratton (2009) 174 Cal.Apop.4th 1407, 1420-1421.)
3. Standing—As Applied Challenge
“An as applied challenge may seek (1) relief from a specific
application of a facially valid statute or ordinance to an
individual or class of individuals who are under allegedly
impermissible present restraint or disability as a result of the
manner or circumstances in which the statute or ordinance has
been applied, or (2) an injunction against future application of
the statute or ordinance in the allegedly impermissible manner it
is shown to have been applied in the past. [Such a challenge]
30
contemplates analysis of the facts of a particular case or cases to
determine the circumstances in which the statute or ordinance
has been applied and to consider whether in those particular
circumstances the application deprived the individual to whom it
was applied of a protected right. (See, e.g., Broadrick v.
Oklahoma [, supra,] 413 U.S. [at pp.] 615-616 . . . ; County of
Nevada v. MacMillen (1974) 11 Cal. 3d 662, 672 . . . ; In re
Marriage of Siller (1986) 187 Cal. App. 3d 36, 49 . . . .)” (Tobe v.
City of Santa Ana, supra, 9 Cal.4th at p. 1084.) To prevail on
such a contention, the party asserting an as applied challenge
must establish a pattern of impermissible application of the
statute, rule or policy. (Id. at p. 1085.)
C. Analysis of Substantive Claims16
1. Contentions Based on Interrelating the Brown
Act, the Speech Codes and the LBMC
Ribakoff argues that neither LBMC 2.03.140, nor the
Board’s “criminal speech rules” are authorized by the Brown Act.
Ribakoff errs. First, Ribakoff mistakenly bases his
argument on the assertion that the LBMC ordinance was
authorized by the Brown Act. Thus, Ribakoff asserts “The Brown
16 We reject Ribakoff’s claim that the September 2015 version
of the speech code is invalid as applied to him as, by his own
admission, it has never been so applied. Nor is there any
evidence that it has been applied to any other person who has
attended a meeting of the Board following announcement of the
new speech code.
31
Act does not authorize either the city ordinance or any of [the
LBTC’s] criminal speech rules.”17
Ribakoff misperceives the relationship between the Brown
Act and the ordinance. Ribakoff’s argument that the ordinance
must be authorized by the Brown Act evidences a
misunderstanding of the fact that the City of Long Beach is a
charter city and therefore has plenary power over its municipal
affairs, including the police power to adopt ordinances such as
LBMC 2.03.140, so long as its actions are not preempted by state
or federal law. (Cal. Const., art. XI, §§ 5, 7; see California Fed.
Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal. 3d 1,
12-13.)
Second, the Brown Act expressly permits legislative bodies
of local agencies to adopt reasonable time limitations on public
testimony. (Gov. Code, § 54954.3, subd. (b)(1).)
Third, neither version of the speech code contains any
criminal sanction.
17 Ribakoff also claims the two speech codes were “never
adopted” by the Board and are invalid for that reason as well.
However, while the burden is his, as plaintiff below, to establish
this “fact,” he makes no reference in his appellate brief to any
evidence which he introduced at trial to substantiate this claim.
Indeed, there is no evidence that Ribakoff availed himself of
Evidence Code section 1284 (proof of absence of official record),
which would have allowed him to obtain admissible evidence of
the absence of any record of adoption of one or both speech codes,
if no record of adoption did exist. For this reason, he has waived
the claim of lack of formal adoption of either version of the speech
code. (See fn. 3, ante.)
32
2. LBMC 2.03.140 and the First Amendment
Ribakoff contends LBMC 2.03.140 is unconstitutional, both
on its face and as applied to him. He bases this claim on his
reading of In re Kay (1970) 1 Cal. 3d 930 (Kay), arguing that
LBMC 2.03.140 is unconstitutional for the same reason that
Penal Code section 403 was determined to be unconstitutional in
Kay.18 Ribakoff misunderstands the holding of Kay.
Ribakoff is correct that the Long Beach ordinance is “all but
identical” to the statute at issue in Kay. LBMC 2.03.140
provides: “No person without authority of law shall disturb,
interrupt, or break up any meeting or session of the Council, or
of any legally constituted board or commission of the City.”19
Penal Code section 403 provides: “Every person who,
without authority of law, willfully disturbs or breaks up any
assembly or meeting that is not unlawful in its character . . . is
guilty of a misdemeanor.”
In Kay, our Supreme Court was asked to consider the First
Amendment implications of Penal Code section 403, which had
been the basis for the arrest of several persons who had made a
disturbance during an Independence Day speech to a public
gathering of approximately 6,000 persons in a park in the
farming community of Coachella by a candidate for reelection to
18 Ribakoff also claims this ordinance is unconstitutionally
“vague” as applied. While Ribakoff has standing to raise this
claim even though he was not arrested (see Prigmore v. City of
Redding (2012) 211 Cal. App. 4th 1322, 1349), the holding of Kay,
which we discuss in the text, post, establishes this claim is
without merit.
19 Ribakoff has not cited any provision of the LBMC which
makes violation of this ordinance a misdemeanor.
33
the United States House of Representatives. The protesters had
“engaged in rhythmical clapping and some shouting” during the
speech, but without interfering with the speaker completing his
speech; he did, “paus[e] to assure those protesting that they had a
right to do so . . . . At no time did either the speaker or the police
ask the protestors to be silent or to leave.” Charges were filed
two weeks later. (In re Kay, supra, 1 Cal.3d at p. 936.) The
protesters were later convicted of violating this Penal Code
provision.
In its opinion granting the petitioners in Kay a writ of
habeas corpus on the ground that petitioners had not
unreasonably interfered with a public meeting, our Supreme
Court construed Penal Code section 403 to eliminate doubt as to
its constitutionality, holding that Penal Code section 403
“authorizes the imposition of criminal sanctions only when the
defendant’s activity itself—and not the content of the activity’s
expression—substantially impairs the effective conduct of a
meeting.” (In re Kay, supra, 1 Cal.3d at p. 942.)
The court explained, “the nature of a meeting necessarily
plays a major role. [Citation.] The customs and usages at
political conventions may countenance prolonged, raucous,
boisterous demonstrations as an accepted element of the meeting
process; similar behavior would violate the customs and usages of
a church service. Audience participation may be enthusiastically
welcomed at a bonfire football rally or an athletic contest, but
considered taboo at a solemn ceremony of a fraternal order.
Explicit rules governing the time and place of permitted
nonviolent expressions [citations] may in some circumstances fix
the limits of permissible conduct. Violation of such customs or
rules by one who knew or as a reasonable man should have
34
known of them would justify the application of [Penal Code]
section 403. Thus, rather than enacting monolithic standards,
[Penal Code] section 403 draws its content from the implicit
customs and usages or explicit rules germane to a given
meeting.” (In re Kay, supra, 1 Cal.3d at p. 943, fn. omitted.)
As noted, LBMC 2.03.140 is substantially similar to Penal
Code Section 403; accordingly, it should be construed in like
manner. Thus, Ribakoff’s claim that LBMC 2.03.140 must be
voided because the similar Penal Code section had been
invalidated rests on an invalid premise.20 Just as our Supreme
Court upheld the constitutionality of Penal Code section 403, as
construed, we conclude that LBMC 2.03.140 is not
unconstitutional when similarly construed. Kay does make a
distinction which we will address, post, with respect to other
contentions of Ribakoff, i.e., analysis of rights under the First
20 To support his argument, Ribakoff also mistakenly relies
on a quotation from the syllabus preceding the United States
Supreme Court’s opinion in Madison Sch. Dist. v. Wisconsin Emp.
Rel. Comm’n (1976) 429 U.S. 167 [97 S. Ct. 421, 50 L. Ed. 2d 376]
(Madison). In that case, the United States Supreme Court held
that a public body (there, a school board) sitting in a public
meeting to conduct public business cannot permit some public
speakers but exclude others on either the basis of their
employment or the content of their speech. (Id. at p. 176.) That
factual circumstance is inapposite to the situation in the present
case. Nothing in that court’s determination that such a
restriction was invalid suggests application to the present case.
In addition, Ribakoff’s use of a quotation from the syllabus
preceding the opinion is inappropriate. Immediately preceding
the syllabus there is a footnote notice that the syllabus
“constitutes no part of the opinion of the court.” (Madison, supra,
429 U.S. 167.)
35
Amendment differs depending on the nature of the forum in
which the views are sought to be expressed.
3. Constitutional Claims Based on Restrictions on
Time Allowed for Public Speakers
Ribakoff contends the time limits imposed by the speech
rules of the Board violate his First Amendment rights; he also
contends the circumstance that no time limits are imposed on
staff and invited guests support his claim. And, he alleges that
these speech rules are unconstitutional both on their face and as
applied.
Government Code section 54954.3, subdivision (a) 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 . . . .” Subdivision
(b)(1) of the same section provides: “The legislative body of a
local agency may adopt reasonable regulations to ensure that the
intent of subdivision (a) is carried out, including, but not limited
to, regulations limiting the total amount of time allocated for
public testimony on particular issues and for each individual
speaker.” And subdivision (c) of the same section provides: “The
legislative body of a local agency shall not prohibit public
criticism of the policies, procedures, programs, or services of the
agency, or of the acts or omissions of the legislative body.
Nothing in this subdivision shall confer any privilege or
protection for expression beyond that otherwise provided by law.”
Ribakoff cites this statute in support of his contention that
the Brown Act does not authorize the speech limits which the
Board applied. Based on this statute, he argues the Board’s
36
speech rules are not reasonable because “they exist [for some
reason other than] to allocate the limited time among the crush of
public speaker[s] at the bus company’s board meeting[s].”21 He
also argues, “A law [apparently referring to the speech rules] that
prohibits you from ‘disturbing’ a council meeting is a law that
prohibits you from disturbing it by criticizing it.” Thus,
Ribakoff’s claim is that the rules at issue exist to prevent
speakers from expressing views that the Board does not want to
hear, and this limitation impinges on Ribakoff’s right to speak in
a public forum.
a. Time limitation on Ribakoff’s statements to
the Board.
Ribakoff’s claim that the speech rules exist to censor
comments is without factual basis. When Ribakoff spoke the first
time on item 10, there is no evidence he was interrupted in
expressing his opposition to the new TAP card policy which the
Board was then considering adopting. Nor is there any other
evidence his criticism of item 10 was interrupted or that the
content of his remarks was being censored. Instead, it was only
when he rose to speak a second time—during the period for
discussion, deliberation and voting by members of the Board—
that his request to speak again was turned down.
Nor is there any evidence his request for additional time
was rejected based on the content of what he was going to say.
21 Based on the overarching theme of his opening brief, it
appears Ribakoff is arguing the regulations are implemented to
prevent speakers from expressing views that the Board does not
want to hear. For reasons we discuss in the body of this opinion,
we find this argument to be factually and legally incorrect.
37
(Additionally, there is no evidence of what he had intended to say
if he had been allowed to speak a second time, other than what
he offers on appeal—that he was going to dispute what another
speaker (likely a staff member or one of the MTA representatives
who had made a presentation to the Board) had said during the
public hearing on the agenda item.) Instead, the facts establish
Ribakoff’s second request to speak was declined because
previously he had consumed all of the time allowed to him as a
member of the public to speak on a particular agenda item.
b. Limitation on public testimony as opposed to
staff testimony.
Ribakoff also argues the limitation on public testimony is
unreasonable because staff members and guests invited to speak
on particular agenda items are not so limited. The essence of
Ribakoff’s argument is that a three-minute limit is presumptively
unreasonable, particularly when there is no similar time limit on
presentations by staff or invited guests.
Ribakoff’s argument fails to recognize the different
purposes served by staff/invited guests, on the one hand, and
members of the public, on the other. The purpose of staff/invited
guest presentations to the Board, or any similar body, is to
present to the members of that body in their capacity as
legislators, and to the public in attendance, what can be
detailed—and perhaps lengthy—analyses of the particular
agenda item, to inform both the members of the board and the
public concerning the item. Limiting presentations by staff and
guests who are invited to speak based on their expertise to the
same extent as members of the public ignores the information
function served by staff and invited experts. Truncating such
38
presentations does not promote informed decision making by the
legislative body. The chair of the legislative body continues to
have the ability to regulate the length of those presentations.
Nor is there any reason to think time allocated for those
presentations would be unlimited or extend beyond that needed
to inform all in attendance concerning the particular agenda
item.
On the other hand, having no limit on either the length of
any particular presentation by a member of the public or on the
number of public speakers (or on the total time for public
comment) has the potential for endless discussion—given the
potential that there will be a far greater number of members of
the public who may wish to speak to an issue than there are staff
and guests who make presentations concerning it. The number of
staff and invited guests speaking on a topic will clearly be
limited; the potential for public speakers is potentially extensive
and needs some reasonable limitation.
We do not suggest that members of the public may not have
expertise, or that their presentations would be of lesser value
than those of the invited, expert staff and guest speakers, only
that their number must be considered in weighing the time
allotted to public participation. Indeed, this concern was a factor
in shaping the text of Government Code section 54954.3 as it
moved through the Legislature with amendments to the Brown
Act adopted in 1986. On the one hand, the Legislature declared
the importance of open governance and the public’s right to
participate.22 On the other, it validated enactment of limits on
22 Thus, Government Code section 54950 provides in part: “In
enacting [the Brown Act], the Legislature finds and declares that
the public commissions, boards and councils and the other public
39
public speakers so that the business of government could
function. (Gov. Code, § 54954.3.)23
c. Public forum verses limited public forum.
Ribakoff seeks to apply First Amendment principles
applicable to public fora to limited public fora, such as meetings
of the Board. In making this claim, Ribakoff does not appreciate
that the First Amendment does not apply in the same way in the
two fora.
The case upon which Ribakoff places principal reliance for
his claim that the speech codes violate the Brown Act discusses
this difference. White v. City of Norwalk (9th Cir. 1990) 900 F.2d
1421 (White) was an action brought by two plaintiffs who were
ruled out of order when they spoke or attempted to speak at a
agencies in this State exist to aid in the conduct of the people’s
business. It is the intent of the law that their actions be taken
openly and that their deliberations be conducted openly.”
23 The 1986 Legislature enacted significant amendments to
the Brown Act, set out in Statutes 1986, chapter 641. In the
course of its enactment of these changes, the Senate Local
Government Committee Report on Assembly Bill No. 2674 notes,
“The Committee may wish to consider whether the requirement
for public comment will unnecessarily slow down local agencies’
meetings. The Committee may also wish to consider whether the
bill gives local officials sufficient control over public comment
periods without stifling their intent.” (Sen. Local Government
Com., Rep. on Assem. Bill No. 2674 (1985-1986 Reg. Sess.)
May 22, 1986, p. 3.) The text of Government Code section
54954.3 was then modified to read as it exists at present. We
take judicial notice of this legislative history. (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal. App. 4th 26 [collecting cases].)
40
meeting of the city council of the City of Norwalk. They sued
under the federal civil rights statutes (42 U.S.C. § 1983), seeking
to vindicate their First Amendment and other civil rights claims
by having the court issue a declaration that a specific provision of
the Norwalk City Code (former § 2-1.2, now § 2.08.020 (Ord.
1470, § 2, 1997))24 was unconstitutional; an injunction against
24 The cited ordinance provided:
“[B] Rules of Decorum. While any meeting of the City
Council is in session, the following rules of order and decorum
shall be observed: [¶] . . . [¶]
“3. Persons Addressing the Council. . . . Each person who
addresses the Council shall do so in an orderly manner and shall
not make personal, impertinent, slanderous or profane remarks
to any member of the Council, staff or general public. Any person
who makes such remarks, or who utters loud, threatening,
personal or abusive language, or engages in any other disorderly
conduct which disrupts, disturbs or otherwise impedes the
orderly conduct of any Council meeting shall, at the discretion of
the presiding officer or a majority of the Council, be barred from
further audience before the Council during that meeting. [¶] . . .
[¶]
“[D] Enforcement of Decorum. The rules of decorum set
forth above shall be enforced in the following manner:
“1. Warning. The presiding officer shall request that a
person who is breaching the rules of decorum be orderly and
silent. If, after receiving a warning from the presiding officer, a
person persists in disturbing the meeting, the presiding officer
shall order him or her, to leave the Council meeting. If such
person does not remove himself or herself, the presiding officer
may order any law enforcement officer who is on duty at the
meeting as sergeant-at-arms of the Council to remove that person
from the Council chambers. [¶] . . . [¶]
41
enforcement of the ordinance; and for monetary damages. (White,
supra, at p. 1422.) The subject ordinance forbids conduct by
members of the public, “which disrupts, disturbs or otherwise
impedes the orderly conduct of any Council meeting.”25 (Norwalk
Mun. Code, § 2.08.020(B)(3).)
The Ninth Circuit’s opinion upholding the ordinance
against these challenges points out the difference between
remarks “uttered on the street to anyone who chooses or chances
to listen,” and those presented in a meeting of a legislative body
such as the Norwalk City Council—or meetings of the Board.
(White, supra, 900 F.2d at p. 1425.) The court explained: “A
more fundamental flaw in [the] plaintiffs’ position is that their
first amendment arguments do not take account of the nature of
the process that this ordinance is designed to govern. We are
dealing not with words uttered on the street to anyone who
chooses or chances to listen; we are dealing with meetings of the
Norwalk City Council, and with speech that is addressed to that
Council. Principles that apply to random discourse may not be
transferred without adjustment to this more structured situation.
“3. Resisting Removal. Any person who resists removal by
the sergeant-at-arms shall be charged with a violation of this
section.
“4. Penalty. Any person who violates any provision of this
section shall, pursuant to Section 1.[16].010, be guilty of a
misdemeanor.” (White, supra, 900 F.2d at p. 1424.)
25 The ordinance included a proscription on slanderous or
profane remarks, which did not apply to such remarks unless
they disrupted, disturbed or otherwise impeded the orderly
conduct of such a meeting. (White, supra, 900 F.2d at p. 1424.)
42
“City Council meetings like Norwalk’s, where the public is
afforded the opportunity to address the Council, are the focus of
highly important individual and governmental interests.
Citizens have an enormous first amendment interest in directing
speech about public issues to those who govern their city. It is
doubtless partly for this reason that such meetings, once opened,
have been regarded as public forums, albeit limited ones. See
[Madison, supra,] 429 U.S. [at p.] 175 . . . ; Hickory Fire Fighters
Ass’n, Local 2653 v. City of Hickory, 656 F.2d 917, 922 (4th
Cir.1981).
“On the other hand, a City Council meeting is still just
that, a governmental process with a governmental purpose. The
Council has an agenda to be addressed and dealt with. Public
forum or not, the usual first amendment antipathy to content-
oriented control of speech cannot be imported into the Council
chambers intact. In the first place, in dealing with agenda items,
the Council does not violate the first amendment when it
restricts public speakers to the subject at hand. [Madison,
supra,] 429 U.S. at [p.] 175 [f]n. 8 . . . ; see Cornelius v. NAACP
Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S. Ct. 3439,
3448, 87 L. Ed. 2d 567 (1985) (public forum may be created by
government designating ‘place or channel of communication . . .
for the discussion of certain subjects’). While a speaker may not
be stopped from speaking because the moderator disagrees with
the viewpoint he is expressing, see Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 60-61, 103 S. Ct. 948, 963, 74
L. Ed. 2d 794 (1983) (Brennan, J., dissenting), it certainly may
stop him if his speech becomes irrelevant or repetitious.” (White,
supra, 900 F.2d at p. 1425, fns. omitted.)
43
“Similarly, the nature of a Council meeting means that a
speaker can become ‘disruptive’ in ways that would not meet the
test of actual breach of the peace, see Gooding, 405 U.S. at 526-
27, 92 S. Ct. at 1108, or of ‘fighting words’ likely to provoke
immediate combat. See Chaplinsky v. New Hampshire, 315 U.S.
568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942). A speaker may
disrupt a Council meeting by speaking too long, by being unduly
repetitious, or by extended discussion of irrelevancies. The
meeting is disrupted because the Council is prevented from
accomplishing its business in a reasonably efficient manner.
Indeed, such conduct may interfere with the rights of other
speakers.
“Of course the point at which speech becomes unduly
repetitious or largely irrelevant is not mathematically
determinable. The role of a moderator involves a great deal of
discretion. Undoubtedly, abuses can occur, as when a moderator
rules speech out of order simply because he disagrees with it, or
because it employs words he does not like. But no such abuses
are written into Norwalk’s ordinance, as the City and we
interpret it. Speakers are subject to restriction only when their
speech ‘disrupts, disturbs or otherwise impedes the orderly
conduct of the Council meeting.’ So limited, we cannot say that
the ordinance on its face is substantially and fatally overbroad.
See Broadrick v. Oklahoma [, supra,] 413 U.S. [at p.] 615 (to
invalidate statute on its face, overbreadth ‘must not only be real,
but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.’)” (White, supra, 900 F.2d at pp. 1425-1426, fn.
omitted.)
Ribakoff also relies on Norse v. City of Santa Cruz (9th Cir.
2010) 629 Fed.3d 966 (Norse).) Norse was a viewpoint
44
discrimination case which considered the scope of regulation
which a legislative body may impose following the close of the
period for public comment. In commenting on its earlier opinion
in White, the Norse court explained: “In White[, supra], 900 F.2d
1421 . . . , we explained that speech must ‘disrupt[,] disturb[ ] or
otherwise impede[ ] the orderly conduct of the Council meeting’
before the speaker could be removed. [Citation.]” (Norse, supra,
at p. 979 (conc. opn. of Kozinski, C.J.).)
Contentions similar to those made here were made in Kindt
v. Santa Monica Rent Control Bd. (9th Cir. 1995) 67 F.3d 266
(Kindt).) There, the Ninth Circuit upheld the rent control board’s
rules limiting to three minutes speakers’ individual presentations
to that board on agenda items, as well as a separate three-minute
limit for each speaker during the separate, general public
comment portion of its meetings. In upholding these limitations
on public speakers, the court reasoned: “The Board regulations
restricting public commentary to three minutes per item at the
end of each meeting are the kind of reasonable time, place, and
manner restrictions that preserve a board’s legitimate interest in
conducting efficient, orderly meetings. See [Madison, supra,] 429
U.S. at [p.] 175 [f]n. 8 . . . (‘Plainly, public bodies may confine
their meetings to specified subject matter’); Wright v. Anthony,
733 F.2d 575, 577 (8th Cir.1984) (five-minute limitation on
presentation to congressman was a reasonable restriction and
served significant governmental interest in conserving time and
ensuring that all had an opportunity to speak). [The plaintiff]
was not entitled to an ‘equal time’ response period to rebut the
45
views of the item 4 speakers at the moment they concluded their
remarks.”26 (Id. at p. 271.)
In White, the court pointed out the importance of placing
time limits on speakers: so that the legislative business can be
accomplished. Ribakoff’s arguments to the contrary—that time
limits are a deprivation of his First Amendment right—are
defeated by the holdings of White, Norse and Kindt. Nor do any
of the other cases which he cites lend support to his claims that
time limits on public speakers at meetings of legislative bodies
should be unfettered.
Although he cites White and Norse, Ribakoff rejects the
holdings of these cases that there are limits to public
participation in the course of meetings of bodies such as the
Board, limits that include time constraints on speaking on
individual agenda items, as in the present case. Thus, Ribakoff
rejects the precedent that a rule providing for three minutes per
26 Of particular note is the similarity in the description of the
opportunities for persons to address the Norwalk City Council to
those afforded to persons desiring to speak before the Board in
the present case: “The Norwalk City Council offers two kinds of
opportunity to citizens to address the Council at meetings.
During the regular part of the meeting, citizens can sign up to
speak with regard to agenda items. Norwalk Mun. Code [former]
§ 2-1.1.b.3[, now § 2.08.020(B)]. During a separate portion of the
meeting devoted to ‘Oral Communications,’ citizens may be
recognized from the floor to address any topic they choose, subject
to the Council’s determination of relevance. Id. at [former] § 2-
1.1.c.2[, now § 2.08.020(C)].” (White, supra, 900 F.2d at p. 1425,
fn. 4.) The Board offers similar opportunities.
46
speaker does not offend the First Amendment.27 (See Chaffee v.
San Francisco Public Library Com. (2005) 134 Cal. App. 4th 109,
115 [upholding that respondent’s rule limiting speakers to “‘up to
three minutes’”].)
d. Content-based restriction.
Ribakoff also contends that the three-minute limit on
public speakers on any agenda item is a “content-based speech
restriction.” Kindt expressly rejects such a contention. (Kindt,
supra, 67 F.3d at p. 272.) Nor is there any evidence to support
Ribakoff’s claim that his second effort to speak was denied based
on what he might say. He had already spoken for the time
permitted by the Board without any evidence that his remarks
had been censored.
27 In his Statement of Tentative Decision, the trial judge
describes what occurred when Ribakoff attempted to speak a
second time, just as the Board was going to deliberate and vote
on item 10: “[Ribakoff] at that point, rose from his seat, came to
the podium and commenced speaking over the open microphone.
The chair told [Ribakoff] he had already spoken for three
minutes, and she said that [Ribakoff] could make his comments
to staff after the meeting. [Ribakoff] said he had not completed
his comments.” The trial judge then quotes Ribakoff as stating,
“I’m asking for more time. I do have a First Amendment right to
address these issues, and your time-place-manner regulation at
this podium has to be reasonable. If there is no reason to . . .
interrupt my conversation, then the time-place-manner
regulations are irrelevant and not enforceable. So on First
Amendment Grounds I ask just for a few more minutes.” (Italics
added.) The holdings of White and Norse demonstrate the error
in Ribakoff’s claims.
47
There is no evidence the reason he was not allowed more
time than that permitted by the Board’s rule concerned the
content of what he might say. And, even if one accepts, arguendo,
Ribakoff’s premise that any temporal restriction on speech
carries with it some restriction on content, such a restriction is
permissible so long as the “content” restriction is “viewpoint
neutral and [is] enforced that way.” (Norse, supra, 629 F.3d at
p. 975; Kindt, supra, 67 F.3d at pp. 270-271.) A restriction on a
speaker’s time to speak inevitably restricts what the speaker can
say in the time allotted. Such a restriction is not per se a
restriction on the substance of the remarks.
4. Other First Amendment Claims
Because the three minutes per public speaker rule clearly
meets constitutional concerns, and there is no evidence it was
applied based on the content of Ribakoff’s stated or intended
remarks, we do not further consider his argument that either
iteration of the Board’s speech rule violates the First
Amendment, whether on the face of the rule or as applied.28
28 Ribakoff also asserts the trial court erred by failing to
revise its statement of decision to make 15 specific findings. The
trial court declining to do so was not error. A court is not
required to discuss each question listed in a party’s request. All
that is required is an explanation of the factual and legal basis
for the court’s decision regarding the principal controverted
issues. (Hellman v. La Cumbre Golf & Country Club (1992) 6
Cal. App. 4th 1224, 1230.) Ribakoff’s request sought far more
detail than required by Code of Civil Procedure section 632 or by
California Rules of Court, rule 3.1590.
48
V. Absence of Adoption of Findings Concerning the
September Version of the Speech Code
Ribakoff contends the second iteration of the Board’s
speech rules is void because when it was put in force the Board
did not “adopt[] . . . findings demonstrating the interest[]
protected by the limitation and the need for protecting that
interest.” In making this claim, Ribakoff relies on article I,
section 3, subdivision (b)(2) of the state Constitution.29
However, Ribakoff presents no argument of any kind in
support of this claim. Instead, Ribakoff states, “Article [I] does
not . . . describe what happens if a statute or court ruling lacks
the required findings. It is safe to assume that it requires an
offending statute to be declared void. If it is safe to assume that
an offending statute must be declared void, then the offending
judicial ruling must also be void.” (Italics added.)
Ribakoff bears the burden of supporting his arguments
with cogent authorities. As he has not done so, this argument is
deemed waived. (Harding v. Harding (2002) 99 Cal. App. 4th 626,
635; Ellenberger v. Espinosa (1994) 30 Cal. App. 4th 943, 948 [brief
without legal argument and citation to authorities on the points
made may be treated as waived or abandoned].)
29 California Constitution, article I, section 3, subdivision
(b)(2) provides: “A statute, court rule, or other authority,
including those in effect on the effective date of this subdivision,
shall be broadly construed if it furthers the people’s right of
access, and narrowly construed if it limits the right of access. A
statute, court rule, or other authority adopted after the effective
date of this subdivision that limits the right of access shall be
adopted with findings demonstrating the interest protected by
the limitation and the need for protecting that interest.”
49
DISPOSITION
The judgment is affirmed. Each party is to bear its own
costs on appeal.
GOODMAN, J.*
We Concur:
BIGELOW, P. J.
RUBIN, J.
* Retired judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
50
Filed 9/13/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOE RIBAKOFF, B279462
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC610000)
v.
ORDER MODIFYING
CITY OF LONG BEACH et al., OPINION AND CERTIFYING
FOR PARTIAL PUBLICATION
Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed on August 24, 2018, be
modified as follows:
1. On page 2, in the first full paragraph, delete the last
sentence “We find neither statutory nor constitutional violations,
and affirm.”
* Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is ordered certified for publication with the
exception of parts II, III, and V of the Discussion.
2. On page 2, after the first full paragraph, insert the
following as a second paragraph before Factual Background:
In the published portions of this opinion we
address the standard of review to be applied and
Ribakoff’s claims under the Ralph M. Brown Act (the
Brown Act; Gov. Code, § 54950, et seq.) and the First
Amendment, concluding that his claims lack merit. In
the unpublished portions of the opinion, we conclude
that Ribakoff correctly asserted his claim under the
Government Claims Act (Gov. Code, § 900 et seq.) but
that that claim, his Tom Bane Civil Rights Act (the
Bane Act; Civ. Code, § 52.1) claim and his assertion of a
claim under article I, section 3, subdivision (b)(2) of the
California Constitution, lack merit.
3. On page 9, lines 1 to 3 are to be revised to read as
follows:
. . . he alleged violations of the Bane Act and the Brown
Act, of his right to freedom of speech . . .
4. On page 12, lines 1 and 2 are to be revised to read as
follows:
. . . that Ribakoff had failed to comply with the Government
Claims Act prior to filing the lawsuit.
There is no change in the judgment.
____________________________________________________________
BIGELOW, P. J. RUBIN, J. GOODMAN, J.*
*Retiredjudge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2