Finnie v. Town of Tiburon

• Decision Date: 29 February 1988
• Docket Number: No. A038052,A038052
• Citation: 244 Cal.Rptr. 581,199 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph B. FINNIE et al., Plaintiffs and Appellants, v. TOWN OF TIBURON, Defendant and Respondent.

Page 581

244 Cal.Rptr. 581

199 Cal.App.3d 1

Joseph B. FINNIE et al., Plaintiffs and Appellants, v. TOWN OF TIBURON, Defendant and Respondent.

No. A038052.

Court of Appeal, First District, Division 4, California.

Feb. 29, 1988.

Review Denied June 1, 1988.

Eric J. Schmidt, San Francisco, for plaintiffs and appellants.

Gary T. Ragghianti, Town Atty., San Rafael, for defendant and respondent.

Eric J. Schmidt, San Francisco, for amicus curiae on behalf of Fran Mayberry.

ANDERSON, Presiding Justice.

Plaintiffs Joseph B. Finnie and Michael D. Lagios (appellants) appeal from the trial court's order denying a preliminary injunction and imposing sanctions upon them and their attorney for initiating a frivolous action.

On April 8, 1986, the voters of defendant Town of Tiburon (respondent or Town) approved Measure C, which imposed a two-year moratorium on construction within the city limits. In July and August of 1986 numerous lawsuits which challenged the validity and enforceability of Measure C were brought against the Town. In a closed session held on November 12, 1986, the Town and plaintiffs to the Measure C litigation entered into settlement stipulations. The key items of the settlement agreements provided that the Town would call a special election on March 3, 1987, and propose an amendment to Measure C which would allow construction of single-family residences on legal lots of record in existence as of April 26, 1986, the effective date of Measure C. In return, the plaintiffs agreed to stay the litigation pending the outcome of the election and to reimburse the Town $72,800 for legal costs already expended if the new ballot measure passed. On November 14, 1986, the settlement agreements were approved by the Marin County Superior Court and were made public the same day. At a public meeting convened on November 19, 1986, the Town Council enacted Resolution Nos. 2420 and 2421 calling a municipal election on March 3, 1987. Simultaneously, a public discussion was held on the March 3 ballot measure during which the Town Council described the settlement stipulations and responded to citizen comments relating to the matter. Mr. Schmidt, appellants' trial and appellate counsel, was present at the November 19, 1986, meeting and was made aware of the existence of the settlement stipulations and the Town's intention to place the ballot measure before the voters on March 3, 1987. The ballot measure and the related stipulated agreements were further discussed at the December 11, 1986, special workshop held before the Town Council, Planning Commission and General Plan Goals Committee and the February 4, 11 and 18, 1987, public hearings. Significantly enough, appellants' counsel was present at all of these meetings and actively participated therein.

The ballot measure (Measure A), which was prepared and printed during November and December 1986 and January 1987, read as follows: "Shall an amendment to the Town's building moratorium ordinance, No. 317 N.S. ("Measure C") permitting construction of single family homes on legal lots of record in existence as of April 26, 1986, be adopted?"

The sample ballot also included the Town attorney's impartial analysis of Measure A, arguments for and against Measure A and rebuttals to those arguments. The opponents of Measure A had full opportunity to, and did, in fact, spell out their views concerning the ballot measure. For example, the arguments against Measure A called attention to the alleged closed door meetings between the Town and the developers, urged them to read the stipulated agreements before voting and claimed (1) that the developers paid for the election; (2) that the proposed amendment would primarily benefit the developers rather than the "little guy"; (3) that the agreements would not release the Town from all pending litigation; and (4) that the developers brought the legal action to intimidate the Town. ¹ These warnings did not go unheeded on the March 3, 1987, election Measure A was narrowly defeated by a margin of 12 votes. ²

Apparently fearing that they would not be able to so convince the voters, appellants, on February 17, 1987, brought an action in the superior court to prevent the March 3, 1987, election altogether. That complaint alleged in conclusory terms that the election should be enjoined on the following grounds:

"1. The election which is set for March 3, 1987, violates basic election requirements imposed by law.

"2. The Town Council acted without jurisdiction when it entered into the contracts with the developers.

"3. The contracts which the election will affirm or reject are all in violation of California Constitution Article I.

"4. The contract with Perini is void because it violates public policy.

"5. Improper tactics of persuasion by Town officials have tainted the election process.

"6. If the election is held and the ballot measure passes, the election will have to be set aside for bribery and coercion.

"7. If the election is held and the developers succeed, the Town will be subjected to a multiplicity of suits.

"8. A "yes" vote on the proposed ordinance would result in enforcement of the Stipulations and thereby destroy the efficacy of the Planning Commission.

"9. The contracts which the electorate is unknowingly required to affirm or reject consist largely of administrative matters which the electorate cannot legally vote upon.

"10. Allowing this election abuse to succeed would undermine principles of fair and open government.

"11. This election is completely based on acts which violated State laws."

These conclusionary allegations remained unsupported by specific factual recitations in the followup proceedings as well. Counsel Schmidt's declaration filed on behalf of appellants was couched only in general terms, without reference to solid, tangible facts and alleged as follows:

"3. I have attended numerous meetings of the Tiburon Town Council and devoted a great amount of time to studying records of the Town and the laws relating to them. These observations and studies have convinced me that the Town Council has arranged for a special election to occur on March 3, 1987, which, if held, will violate the law in the many respects referred to in the complaint for an injunction which is on file. On January 27, 1987, I requested the Town Council to refrain from the conduct described above, but it has refused to do so and expressed its intention to continue its unlawful acts and to proceed with the illegal election."

Similarly, at the February 24, 1987 injunction hearing, appellants presented only legal arguments without offering any evidence to substantiate their numerous charges. In opposition, the Town filed an extensive brief which included the declarations of Therese M. Hennessy, Assistant Town Clerk, and Gary Ragghianti, Town Attorney, objections to the Schmidt declaration, numerous exhibits, and legal arguments pertaining to each of the charges. In its opposition papers the Town sought not only the denial of the injunction, but also sanctions against appellants and/or their counsel for bringing a bad faith action (CODE CIV.PROC., § 128.5)³.

Following a hearing the trial court found inter alia that appellants failed to make the requisite legal showing to ban the election; that appellants did not present sufficient admissible evidence to substantiate their charges against the Town; that appellants' claim was barred by the doctrine of laches; and that the action brought by appellants was frivolous within the meaning of section 128.5. In accordance therewith, the trial court denied the preliminary injunction and awarded sanctions in the sum of $2,500 against appellants and their counsel.

On appeal, appellants contend that the trial court erred both in denying the injunction and in imposing the penalty. Appellants specifically claim that the preliminary injunction should have been issued because: (1) there were illegal attempts to influence the voters by bribery, coercion and intimidation; (2) the stipulation agreements between the Town and the plaintiffs to the Measure C litigation were concealed from the voters and were invalid inasmuch as the City Council was not authorized to enter into such agreements without first presenting it to the Planning Commission, and the agreements were decided in a secret session without proper notice in violation of the Brown Act (Gov.Code, § 54950 et seq.); (3) the evidence presented to the court was sufficient to sustain the charges; (4) the doctrine of laches was inapplicable; and (5) since the matter was meritorious there was no justification for imposing sanctions upon appellants and/or their counsel. Appellants further insist that the issues raised on appeal should be decided despite the claim of mootness because they constitute matters of general public interest and because without deciding the issues underlying the preliminary injunction the reviewing court cannot determine the propriety of the sanction imposed. Respondent counters that the appeal from the denial of the preliminary injunction has been rendered moot by the March 3, 1987, election on Measure A and should be dismissed. In addition, respondent maintains that due to the bad faith of the action, the trial court properly awarded sanctions against appellants and their attorney pursuant to section 128.5 and relevant case law (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1418, 235 Cal.Rptr. 165; Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 928, 219 Cal.Rptr. 562; M.E. Gray Co. v. Gray (1985) 163 Cal.App.3d 1025, 1034, 210 Cal.Rptr. 285); respondent urges us to impose additional sanctions upon appellants and/or their counsel for pursuing a frivolous appeal (§ 907; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650, 183 Cal.Rptr. 508, 646 P.2d 179; Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1008-1010, 205 Cal.Rptr. 532). We find respondent's position well taken.

I. ISSUE OF MOOTNESS

First of all, ...