New Livable Cal. v. Ass'n of Bay Area Governments

Citation273 Cal.Rptr.3d 688,59 Cal.App.5th 709
Decision Date18 December 2020
Docket NumberA159235
CourtCalifornia Court of Appeals
Parties NEW LIVABLE CALIFORNIA et al., Plaintiffs and Appellants, v. ASSOCIATION OF BAY AREA GOVERNMENTS, Defendant and Respondent.

Hanson Bridgett, Adam W. Hofmann and David C. Casarrubias, San Francisco, for Defendant and Respondent.

Paul Nicholas Boylan, for Plaintiffs and Appellants.

Petrou, J. Plaintiffs brought a complaint for declaratory and injunctive relief and a petition for writ of mandate (collectively, "pleading") for an alleged violation of the vote reporting requirement of the Ralph M. Brown Act ("Brown Act" or "Act"; Govt. Code §§ 54950 et seq.1 ) by the governing board of defendant Association of Bay Area Governments (ABAG). Defendant successfully demurred and a judgment of dismissal was entered. As the pleading contains sufficient factual allegations to withstand demurrer, we reverse the judgment of dismissal and remand for further proceedings.

We dismiss as abandoned plaintiffs’ appeal from a post-judgment order striking their request for costs as appellate " ‘review is limited to issues which have been adequately raised and briefed.’ " ( Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519, 178 Cal.Rptr.3d 168.)


A. Background

Plaintiff New Livable California dba as Livable California ("Livable California") is a not for profit, public benefit corporation focused on land use, zoning, housing, and transportation issues; it is comprised of a statewide coalition of elected officials and community leaders. Plaintiff Community Venture Partners, Inc. ("Community Venture Partners") is a not for profit, public benefit corporation whose mission is to promote and defend the principles of open government.

Defendant ABAG is a joint power authority of nine San Francisco Bay Area counties – Alameda, Contra Costa, Marin, Napa, Sonoma, San Mateo, San Francisco, Santa Clara, and Solano – as well as the 101 cities located therein. (§ 66536.1, subd. (b).) ABAG's objectives include (1) increasing the housing supply according to the region's needs; (2) maintaining and improving existing housing to better fill the region's needs; and (3) expanding and conserving housing opportunities for lower income individuals. ( Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 376, 110 Cal.Rptr.2d 579.) ABAG's governing Board of Directors ("Board"), comprised of county supervisors, mayors, and city councilmembers, is subject to the Brown Act.

Plaintiffs contend the Board violated the Brown Act's vote reporting requirement (§ 54953, subd. (c)(2)) ("§ 54953(c)(2)")2 during the January 17-18, 2019 meeting3 convened to consider a motion to authorize the Board President to sign a regional housing and transportation development proposal known as the CASA Compact ("CASA Motion"). In relevant part, the Board:

(1) rejected a motion to postpone a vote ("Substitute Motion") on the CASA motion by "a show of hands," that was reported as a "voice vote" in the minutes of the meeting;

(2) approved a motion to call the question (to close discussion on the CASA Motion) ("Motion to Call the Question") by "a show of hands," that was not reported in the minutes;

(3) adopted an amended CASA motion ("Amended CASA Motion") by a "roll call vote," that was reported in the minutes as a "vote" that listed the name and vote (for or against) of each member present with no abstentions and the names of absent members.4

B. Trial Court Proceedings

On May 31, 2019, plaintiffs filed a combined complaint and petition for writ of mandate alleging one cause of action based on the overarching claim that the Board violated section 54953(c)(2) in reporting the votes on the motions concerning the CASA Compact. The pleading sought various declaratory, injunctive, and writ relief allowed under sections 54960 and 54960.1.

The pleading alleged, in pertinent part, that the vote procedures for the Substitute Motion and the Motion to Call the Question were not in compliance or substantial compliance with section 54953(c)(2) because there was neither a verbal nor written announcement "publicly" reporting the vote or abstention of each individual member. Plaintiffs further alleged the improper vote reporting of the Substitute Motion rendered the later vote on the Amended CASA Motion null and void because if the Substitute Motion had been successful no vote would have been held on the Amended CASA motion.

Plaintiffs claimed prejudice by the Board's "failure to publicly report the votes or abstentions of each member present for the [Substitute Motion] and [its] subsequent adoption of the [Amended CASA Motion] that was supportive of the CASA Compact". According to plaintiffs, the "anonymous" and "secretive" voting undermined their ability and that of the public to monitor how members voted on "an important, controversial issue concerning regional housing policy". Livable California further alleged prejudice because its leadership preferred the Substitute Motion and opposed the Amended CASA Motion, but their representatives were unable to timely object to the vote taken on the Substitute Motion because the public comment period had ended. If the Substitute Motion had passed, then Livable California would have used the additional time to organize more opposition to the CASA Compact. Community Venture Partners alleged prejudice because ABAG's conduct "concealed information about regional planning and growth and reduced ... [the] ability to hold elected officials accountable for their actions."

The trial court sustained ABAG's demurrer without leave to amend on the ground that plaintiff had not and could not allege facts sufficient to support any relief for a Brown Act violation.


A. Legal Framework

"In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded ... or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. [Citation.]" ( Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052, 154 Cal.Rptr.3d 727 ( Intengan ).) Where the demurrer is based on the pleading not stating " ‘facts sufficient to constitute a cause of action, the rule is that if, upon a consideration of all the facts stated, it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’ [Citation.] In other words, plaintiff need only plead facts showing that he may be entitled to some relief (citation).’ [Citation.] Furthermore, we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint. [Citation.]" ( Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)

B. Analysis

The pleading states causes of action under sections 54960 and 54960.1 for declaratory and injunctive relief and mandamus based on allegations that the Board violated the Brown Act (§ 54953(c)(2)) by the procedure it used to report the vote taken on the Substitute Motion. The trial court found the pleading was deficient for two reasons, both of which we find unavailing.

One, the trial court found no cause of action would lie based on the Board's report of the vote taken on the Substitute Motion because plaintiffs had not and could not allege facts demonstrating legally cognizable prejudice as a consequence of any alleged violation of section 54953(c)(2). However, a demurrer "tests only whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory ." ( Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 522, 245 Cal.Rptr.3d 236 ( Olson ); italics added.) Thus, the pleading "satisfies the purpose of our inquiry on appeal following a demurrer" because a plaintiff does not have to allege prejudice to state causes of action under sections 54960 and 54960.1 for declaratory and injunctive relief and mandamus. ( Olson , supra , at p. 522, 245 Cal.Rptr.3d 236 [prejudice allegation is not necessary to state a cause of action under section 54960.1]; see also Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 887-888, 70 Cal.Rptr.3d 474 [plaintiff seeking declaration of proper interpretation of environmental statutes "did not have to prove prejudice, substantial injury, and probability of a different result" before trial court could grant declaratory relief].) ABAG's citation to Galbiso v. Orosi Public Utility Dist . (2010) 182 Cal.App.4th 652, 107 Cal.Rptr.3d 36 ( Galbiso ), on which the trial court also relied, is not persuasive as, unlike in Galbiso , plaintiffs’ pleading contains factual allegations showing how the Board's reporting of the vote on the Substitute Motion violated section 54953(c)(2). Because we are concerned only with a demurrer, we do not address and express no opinion on the parties’ contentions as to whether plaintiffs will be required to show prejudice before the trial court can declare any Board action null and void under section 54960.1.

Two, the trial court found no cause of action would lie because there was no live controversy between the parties. ( TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 150, 246 Cal.Rptr.3d 17 ( TransparentGov Novato ) [pleading had to allege an "actual, non-moot controversy" in the context of the request for declaratory relief and mandamus].) The court reached this conclusion based on the judicially noticed ( Code Civ. Proc., § 452, subd. (c) ) "transcribed portion" of the May 16, 2019 meeting during which the ABAG Executive Board Vice-President stated:

"First I want to reiterate the process for

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