Shapiro v. Board of Directors of Ccdc

• Decision Date: 22 November 2005
• Docket Number: No. D045506.,D045506.
• Citation: 134 Cal.App.4th 170,35 Cal.Rptr.3d 826
• Court: California Court of Appeals Court of Appeals
• Parties: Melvin SHAPIRO, Plaintiff and Appellant, v. BOARD OF DIRECTORS OF The CENTRE CITY DEVELOPMENT CORPORATION et al., Defendants and Respondents.

35 Cal.Rptr.3d 826

134 Cal.App.4th 170

Melvin SHAPIRO, Plaintiff and Appellant, v. BOARD OF DIRECTORS OF The CENTRE CITY DEVELOPMENT CORPORATION et al., Defendants and Respondents.

No. D045506.

Court of Appeal, Fourth District, Division 1.

November 22, 2005.

Charles Wolfinger, San Diego, for Plaintiff and Appellant.

Lounsbery, Ferguson, Altona & Peak, Helen Holmes Peak, San Diego, and Judith Hartwig, Escondido, for Defendant and Respondent Board of Directors of Centre City Development Corporation.

Michael J. Aguirre, City Attorney, Claudia Gacitua Silva and David J. Karlin, Deputy City Attorneys, for Defendant and Respondent San Diego City Council.

IRION, J.

In this appeal, we examine whether Centre City Development Corporation (CCDC)—a nonprofit corporation created by the City of San Diego—may hold closed-session meetings with legal counsel for the Redevelopment Agency of the City of San Diego (the Agency) to assist the Agency with its eminent domain litigation. Seeking declaratory, injunctive and mandamus relief, plaintiff Melvin Shapiro alleges that defendant CCDC's Board of Directors (CCDC Board) must meet in open session with the Agency's legal counsel pursuant to the Brown Act (Gov.Code, § 54950 et seq.).¹ Shapiro argues that because CCDC is not a party to the Agency's eminent domain litigation, the CCDC Board may not rely on section 54956.9 of the Brown Act, which permits the legislative body of a local agency to hold closed-session meetings with its legal counsel to discuss litigation to which it is a party.

The trial court ruled against Shapiro, concluding that the CCDC acts on behalf of the Agency with respect to the eminent domain litigation and thus may meet in closed session with the Agency's counsel under the closed-session rules applicable to the Agency.

We disagree with the trial court's interpretation of the Brown Act. We are required by case law to narrowly construe the Brown Act's open meeting exceptions, and the text of section 54956.9 makes clear that the Legislature intended to abrogate all attorney-client privilege principles applicable to meetings required to be held in open session under the Brown Act, except as expressly permitted by section 54956.9. Finding no express authorization for the CCDC Board to meet in closed session with legal counsel for the Agency in the text of section 54956.9, we conclude that such closed-session meetings are not permitted by the Brown Act. Although defendants present legitimate policy arguments for allowing closed-session meetings when one local agency delegates certain litigation-related tasks to another local agency, such arguments must be addressed to the Legislature, not this court. Accordingly, we reverse the trial court's judgment denying the relief sought by Shapiro and instruct the trial court to order declaratory and mandamus relief against the CCDC Board's practice of meeting in closed session with legal counsel for the Agency regarding the Agency's eminent domain litigation.

I FACTUAL AND PROCEDURAL BACKGROUND

A History of the Agency and CCDC

The City of San Diego (the City) created the Agency in 1958 and designated the City Council as the Agency's governing body.² In 1975 the City created the nonprofit CCDC to provide various redevelopment services to the Agency.³ The City is the sole member of the CCDC and appoints the CCDC Board.

The "Redevelopment Plan for the Centre City Redevelopment Project" (Redevelopment Plan), which covers much of downtown San Diego, was adopted by the City Council in 1992.⁴ CCDC and the Agency are parties to an operating agreement which states that CCDC will "provide general management and other staff services for Agency" with respect to the redevelopment projects in the Centre City area. Those services include "overall executive direction" for the Centre City redevelopment. The operating agreement makes clear that the CCDC is under the supervision of the Agency, stating that "[i]n the performance of its duties hereunder, [CCDC] shall be under the direction of Agency, and shall abide by actions taken, directives given, and policies adopted with respect to the [Centre City redevelopment] by Agency."⁵

B The Role of CCDC and the Agency in Eminent Domain Proceedings

This appeal arises out of the Agency's and CCDC's role in eminent domain proceedings. The Community Redevelopment Law (Health & Saf.Code, § 33000 et seq. (CRL)) provides the statutory authority for the Agency to exercise powers of eminent domain. The CRL states that, for the purposes of redevelopment, a redevelopment agency may "[a]cquire real property by eminent domain." (Health & Saf.Code, §§ 33391, subd. (b), 33003 [defining "agency"].)⁶ Accordingly, "[r]edevelopment plans may provide for the agency to acquire by ... condemnation all or part of the real property in the project area." (Health & Saf.Code, § 33342.) Here, the Redevelopment Plan authorizes the Agency to acquire property through eminent domain.⁷

California's Eminent Domain Law (Code Civ. Proc., § 1230.010 et seq.) requires that the Agency fulfill certain procedural requirements in exercising its eminent domain authority. Before filing an eminent domain action, the City Council, as the legislative body of the Agency, must hold a public hearing to determine whether to adopt a resolution of necessity for acquisition of property by eminent domain. (See Code Civ. Proc., §§ 1245.235, 1240.040, 1245.220.) After adopting a resolution of necessity, the Agency must file a lawsuit to institute the eminent domain litigation. (See Code Civ. Proc., § 1250.110.) The Agency (with the City Council as its legislative body) performs these tasks itself, and does not delegate them to CCDC.

Although the Agency holds the hearings to determine whether to adopt a resolution of necessity and files the eminent domain lawsuits in its name, it delegates other tasks relevant to land acquisition and eminent domain proceedings for the Centre City redevelopment to CCDC. Specifically relevant to eminent domain litigation, CCDC's responsibilities under the operating agreement are to (1) "[c]oordinate the real estate acquisition process necessary to execute the [Centre City redevelopment], including ... obtaining approvals of acquisition prices, if required, from Agency; provided, however, that [CCDC] shall not ... conduct condemnation actions"; and (2) "[c]oordinate and utilize other services provided ... by consultants selected by and under separate contract with the City or Agency, ... including ... legal opinions and documentation."

The CCDC is given an annual budget by the Agency for the acquisition of real property on behalf of the Agency. CCDC is responsible for obtaining an appraisal of each property and conducting negotiations with the property owners regarding compensation for loss of the condemned property. As trial of each eminent domain lawsuit approaches, CCDC, acting as the Agency's representative, will make a final good faith offer to the property owner. Any settlement is subject to the CCDC Board's finding that the settlement is within the budget allocated by the Agency for the acquisition of real property and is not a "gift of public funds." CCDC estimates that 90 percent of Agency's eminent domain lawsuits are resolved through settlement.

In connection with its role in approving the settlement of eminent domain litigation, the CCDC Board confers with an outside law firm hired by the Agency to litigate the eminent domain lawsuits. The publicly posted agendas announcing these meetings note that they will take place in closed session pursuant to section 54956.9 and indicate the specific eminent domain lawsuits that are to be discussed. After the meetings, the CCDC publishes minutes, which typically indicate that the CCDC Board received a report from special counsel for the Agency in closed session regarding the litigation, and on occasion, that the CCDC Board has given direction regarding a potential settlement.

C Shapiro's Brown Act Claims Against the Agency and CCDC

Shapiro, who is a resident of San Diego, filed a complaint for declaratory, injunctive and mandamus relief against the CCDC Board and the City Council acting as the governing body of the Agency.⁸ Shapiro alleges that the CCDC Board and the Agency violate the open meeting requirements of the Brown Act when the CCDC Board meets in closed session with legal counsel for the Agency to discuss pending eminent domain litigation.⁹ Although section 54956.9, subdivision (a), contains an exception which permits a legislative body to meet with its legal counsel in closed session when it is a party to a litigation, Shapiro contends that because CCDC is not a party to the eminent domain litigation, the CCDC Board must meet with the Agency's legal counsel in open session.¹⁰

Shapiro filed a motion seeking a writ of mandate or a prohibitory injunction and declaratory relief. Based on briefing, declarations and attached documents submitted by the parties, the trial court ruled against Shapiro, holding: "Plaintiff's interpretation of this exception as narrowly limited to parties actually named in a lawsuit is not persuasive. Here, CCDC plays an important role in the City's redevelopment projects and the Agency may delegate the evaluation of the eminent domain issues to CCDC for purposes of ensuring that the overall aspects of the redevelopment plan are consistently applied."

Shapiro appeals, framing the central issue as follows: "Does section 54956.9, subdivision (a) prohibit CCDC from holding a closed session with the Agency's counsel on eminent domain suits when it is not named as a party in the litigation?"¹¹

II DISCUSSION

A Standard of Review

We apply a de novo standard of review where, as here, our task consists of applying a statute to underlying facts that are not in dispute. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 917, 117 Cal.Rptr.2d 631 (Shapiro).) To the extent that the trial court drew factual inferences, ...