TransparentGov Novato v. City of Novato, A152324

• Decision Date: 10 April 2019
• Docket Number: A152324
• Citation: 34 Cal.App.5th 140,246 Cal.Rptr.3d 17
• Court: California Court of Appeals Court of Appeals
• Parties: TRANSPARENTGOV NOVATO, Plaintiff and Appellant, v. CITY OF NOVATO, Defendant and Respondent.

34 Cal.App.5th 140

246 Cal.Rptr.3d 17

TRANSPARENTGOV NOVATO, Plaintiff and Appellant,

v.CITY OF NOVATO, Defendant and Respondent.

A152324

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

Filed April 10, 2019

Jeffrey A. Walter ; Law Offices of Walter & Pistole, Sonoma, for Defendant and Respondent

Edward E. Yates ; Law Office of Edward E. Yates, San Rafael, for Plaintiff and Appellant

Humes, P.J.Appellant TransparentGov Novato appeals from an order denying its petition for a writ of mandate and declaratory relief against the City of Novato. It seeks redress for alleged violations of California’s open-meeting law ( Gov. Code, § 54950 et seq. ) (the Brown Act) at a December 2015 meeting of the Novato City Council.¹ Although the parties have extensively briefed the issue whether certain discussions at that meeting violated the Brown Act, we conclude TransparentGov failed to demonstrate a justiciable controversy warranting relief. As a result, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of two public-works projects approved by the Novato City Council, a five-member body. The first was a solar-panel carport to be built near a public swimming pool, which was approved in November 2018. The second was a bus-transfer facility, which was approved in August 2015 by a vote of four to one. Then-councilmember Pat Eklund cast the sole vote against the bus project.

In November 2015, the City’s electorate voted two new councilmembers into office. At a meeting on December 8, 2015, the new councilmembers were sworn in, and the Council elected Eklund as mayor. The next City Council meeting, the first business meeting of the month, occurred on December 15. Before the meeting, Mayor Eklund sent an email to some constituents inviting them to attend and voice their opposition to the bus project during the public-comment portion of the meeting.

Most of the December 15 meeting was taken up with public comment. A number of commentators expressed their opposition to the solar project, and others expressed their opposition to or support for the bus project. After the meeting’s public-comment portion concluded, Mayor Eklund stated that in the upcoming "[c]ouncil[-]comments" portion of the meeting, she would explain "why the Council should give [the bus project] another look" at a future meeting. Mayor Eklund then asked the city manager to address whether the Council "[could] or should reconsider" the solar project. He responded by stating that "staff does not believe that [the] Council should revisit that topic," but he affirmed that a councilmember could ask for reconsideration. Mayor Eklund then explained that during the upcoming council-comments portion of the meeting, any councilmember could ask that the solar project be placed on a future agenda.

At the time, a provision in the City Council’s policy manual allowed councilmembers to request orally during the first business meeting of a month that an item be placed on a future agenda. This policy stated that discussions surrounding any such request "should not take more than three minutes," although the time limitation was construed as a suggested guideline and not as a strict rule if circumstances warranted a longer discussion.

The Council discussed both projects during the council-comments portion of the December 15 meeting. Mayor Eklund first asked that the bus project be placed on a future agenda and explained why such an action was appropriate. She solicited a response from the other councilmembers. A majority stated they were not in favor of placing the item on a future agenda. This exchange lasted about 12 minutes.

Mayor Eklund then asked the other councilmembers about placing the solar project on a future agenda. One councilmember asked whether it was practical to reconsider the project given its state of construction. The city manager explained the possible consequences of reconsidering the project and asked the public works director to provide background on the project’s status. The discussion lasted about 11 minutes, and no consensus was reached as to whether to place the item on a future agenda. Instead, in an exchange lasting about seven minutes, the Council considered and then voted to form a subcommittee to study the solar project.

On July 29, 2016, TransparentGov sent a letter to the City claiming that the Council had violated the Brown Act at the December 15 meeting by discussing substantive aspects of the solar project and by voting to establish a subcommittee to further consider the project without first giving public notice that these activities might occur. The letter did not mention the City Council’s December 15 discussions of the bus project, although the letter did generally demand that the Council "cease, desist from, and not repeat the past actions that violate the Brown Act." The City responded in writing by agreeing that it would not in the future establish council subcommittees at a meeting without first placing the issue of subcommittee formation on the meeting’s posted agenda.

The City Council soon implemented an additional remedial measure. At a meeting on October 4, 2016, it formally passed a resolution amending its policy to prohibit councilmembers from orally asking during a meeting for an item to be placed on a future agenda. Instead, the new policy requires councilmembers who want to discuss placing an item on a future agenda to submit a written request six days before the meeting in which the request will be considered.² Under the new policy, any such written request must be included in the agenda package for that meeting. Thus, no discussion about placing an item on a future agenda will occur during a meeting unless the public has been notified in the agenda package that such a discussion might ensue.³

A few weeks after the adoption of the new policy, TransparentGov filed this lawsuit. TransparentGov sought a declaration under Code of Civil Procedure section 1060 ( section 1060 ) that at the December 15 meeting the City violated the Brown Act by "discussing the substantive issues related to the [bus and solar projects] and taking action on the solar panel facility without proper notice or placement on the agenda in violation of [sections 54952.2, subdivision (a)(1) and 54954.2, subdivision (a)(1) ]." It also sought a peremptory writ of mandate under Code of Civil Procedure section 1085 ordering the City to "only discuss[ ] and/or tak[e] action ... where the item is publicly noticed and appears on a posted agenda adequately describing subjects to be discussed," as well as attorney fees and costs.

The City moved to strike the petition in its entirety, or alternatively to strike the portion of the petition that sought relief based on the City Council’s having formed a subcommittee at the December 15 meeting without advance notice. The trial court denied the motion. The parties then filed briefs, supported by extensive declarations and exhibits, on the petition’s substantive merits. After a hearing, the court adopted its tentative ruling denying the petition, and it entered judgment in the City’s favor in June 2017.

II.

DISCUSSION

A. The Governing Law.

"The Brown Act requires that most meetings of a local agency’s legislative body be open to the public for attendance by all. ( Gov. Code, § 54953, subd. (a).) Among its provisions, the Brown Act requires that an agenda be posted at least 72 hours before a regular meeting and forbids action on any items not on that agenda.

( Gov. Code, § 54954.2, subd. (a)(1).)" ( Cruz v. City of Culver City (2016) 2 Cal.App.5th 239, 245, 205 Cal.Rptr.3d 736.) The Brown Act’s agenda requirement has three exceptions, which cover (1) brief responses to public questions, (2) brief announcements or requests for clarification, and (3) requests for further actions by staff, subject to the rules or procedures of the legislative body. ( Ibid. ) Where, as here, the relevant facts are undisputed, we independently review the trial court’s determination whether the Brown Act was violated. ( Californians Aware v. Joint Labor/Management Benefits Committee (2011) 200 Cal.App.4th 972, 978, 133 Cal.Rptr.3d 766.)

Certain procedural requirements apply under the Brown Act when a party seeks relief for past actions of a legislative body. Under section 54960, subdivision (a), an interested person may "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. ’ " ( Center for Local Government Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1150, 202 Cal.Rptr.3d 629 ( Government Accountability ).) Section 54960.2, in turn, "establishes several conditions to filing a lawsuit [based on past actions] under section 54960, subdivision (a), including submission of a cease and desist letter to the offending legislative body." ( Government Accountability , at p. 1150, 202 Cal.Rptr.3d 629.)⁴ A trial court must dismiss with prejudice any case seeking relief for any past action if the court concludes that the legislative body has responded to the letter "with an unconditional commitment to cease, desist from, and not repeat the [allegedly wrongful] past action." (§ 54960.2, subd. (c)(1) & (3).)

Additional requirements apply depending on the form of relief sought. "To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present[,] and beneficial right to performance of that duty." ( County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 606, 79 Cal.Rptr.3d 489 ( County of San Diego ).) If the evidence, including facts arising after the writ petition is...