Ctr. for Local Gov't Accountability v. City of San Diego

• Decision Date: 31 May 2016
• Docket Number: D068432
• Citation: 247 Cal.App.4th 1146,202 Cal.Rptr.3d 629
• Court: California Court of Appeals Court of Appeals
• Parties: CENTER FOR LOCAL GOVERNMENT ACCOUNTABILITY, Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

247 Cal.App.4th 1146

202 Cal.Rptr.3d 629

CENTER FOR LOCAL GOVERNMENT ACCOUNTABILITY, Plaintiff and Appellant

v.CITY OF SAN DIEGO et al., Defendants and Respondents.

D068432

Court of Appeal, Fourth District, Division 1, California.

Filed May 31, 2016

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.

McCONNELL, P.J.

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, 85 Cal.Rptr.2d 257, 976 P.2d 808.) 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 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 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 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, 182 Cal.Rptr.3d 748 ; Luther v. Countrywide Financial Corp. (2011) 195 Cal.App.4th 789, 793, 125 Cal.Rptr.3d 716.) “For purposes of our review, we 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, 182 Cal.Rptr.3d 748.)

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, 183 Cal.Rptr. 520, 646 P.2d 191.) The “rule ‘is not an absolute and can assuredly be overcome by other indicia of meaning.’ ” ( State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1409, 197 Cal.Rptr.3d 673.) 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, 183 Cal.Rptr. 520, 646 P.2d 191.) 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, 21 Cal.Rptr.3d 451.)

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...