Opinion
B232700
12-30-2011
CITIZENS FOR OPEN AND PUBLIC PARTICIPATION, Plaintiff and Appellant, v. CITY OF MONTEBELLO et al., Defendants and Respondents; ARA SEVACHERIAN et al., Real Parties in Interest and Respondents.
C. Robert Ferguson for Plaintiff and Appellant Alvarez-Glasman & Colvin, Arnold M. Alvarez-Glasman, Matthew M. Gorman, David H. King and Christopher Cardinale for Defendants and Respondents Rutan & Tucker, Jeffrey M. Oderman, Mark J. Austin and Megan K. Garibaldi for Real Parties in Interest and Respondents
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS124825)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert H. O'Brien, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
C. Robert Ferguson for Plaintiff and Appellant
Alvarez-Glasman & Colvin, Arnold M. Alvarez-Glasman, Matthew M. Gorman, David H. King and Christopher Cardinale for Defendants and Respondents
Rutan & Tucker, Jeffrey M. Oderman, Mark J. Austin and Megan K. Garibaldi for Real Parties in Interest and Respondents
Citizens for Open and Public Participation (Citizens) appeals from the judgment entered after the trial court denied its petition for writ of mandate and rejected its claims for declaratory and injunctive relief alleging that a real property agreement approved in a closed session of the Montebello City Council (Council) and the Community Redevelopment Agency of the City of Montebello (Agency) on November 23, 2009 is null and void due to violations of the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.). Because Citizens has not demonstrated any Brown Act violations that render the real property agreement null and void, we affirm the judgment.
Statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Notices and November 23, 2009 Specials Meetings
In early November 2009, the City of Montebello (City) held a general election, which affected a majority of the Council: Mayor Rosemarie Vasquez was voted out of office, and Councilmembers Kathy Salazar and Robert Urteaga were recalled. Because the Council had declared itself to be the Agency, as permitted by Health and Safety Code section 33200, subdivision (a), Mayor Vasquez chaired the Agency board, and Councilmembers Salazar and Urteaga were on the board. The election thus also affected a majority of the Agency's board.
After the election, but while the Council and Agency majority still were in power, the Council, through Mayor Vasquez, issued a Call and Notice of a Special Meeting. The notice indicated the meeting was scheduled for November 23, 2009, at 6:30 p.m. According to the notice, a closed session was to begin at 5:30 p.m., and the regular session was to begin at 6:30 p.m. Among the agenda items listed for the closed session was a Conference with Real Property Negotiators. The properties identified were 221, 305, 307, 313, 321 W. Whittier Blvd. and 112 So. 4th Street. The agency negotiator was Jose Bazua, identified as the Director of Economic Development; the negotiating party was Ara Sevacherian/Arsev, Inc., a California Corporation. The item identified as "Under Negotiation" was a "Purchase and Sale Agreement including direction to open escrow, Lease Amendment and approval of resolution(s) and other agreement(s) relative thereto."
At the same time as the Council issued its special meeting notice, the Agency, through Mayor Vasquez in her role as chairwoman of the Agency, also issued a Call and Notice of a Special Meeting. That meeting, too, was scheduled for November 23, 2009. The Agency's meeting, however, was called for 5:30 p.m., providing for public comment after the opening of the meeting. The Agency's notice listed a closed session at the end of the agenda, which identified the same Conference with Real Property Negotiators as did the Council's notice.
Both the Council's and Agency's notices were posted at City Hall on November 20, 2009. On the afternoon of November 23, 2009, Citizens contacted the City and Council, through a "cure or correct" letter, as specified in section 54960.1, subdivision (b), asserting that the actions taken at the Council's prior special meeting on November 16, 2009 violated the Brown Act and that any subsequent actions taken at the special meeting scheduled for that evening also would violate the Act. Citizens maintained that notice for the November 23, 2009 special meeting was not given properly and that the Council should go forward with its regularly scheduled meeting on November 25, 2009, after Mayor Vasquez and Councilmembers Salazar and Urteaga were out of office, and not conduct business in the special meeting that evening before the change of power.
Despite Citizens's complaints, the special meetings of the Council and Agency went forward on November 23, 2009. The Agency meeting opened at 5:30 p.m. as scheduled. Several members of the public spoke, stating their concerns that actions, including a major real property negotiation, were being considered by the outgoing members of the Council and Agency. Those speaking questioned the "urgency" in completing the agenda items and expressed their belief that consideration of the agenda items should wait until the new members of the Council and Agency were sworn into office. After the public speakers, at approximately 5:45 p.m., the Council opened its meeting. Before the Council and Agency went into closed session, members of the public addressed the Council. The Council and Agency then began the noticed closed session. Minutes of the Agency's meeting indicate, "The Agency voted 3-1-1 to enter into the [P]urchase and [S]ale [A]greement for the acquisition of the . . . properties [listed in the notice], in substantially the form as presented to the Agency and City Council with additional considerations that relocation costs will be borne by the seller and that sales and environmental issues be incorporated into the document and that limitations that currently exist in the document be expanded from a one year period to a three year period." Mayor Vasquez and Councilmembers Salazar and Urteaga voted to enter the agreement, while one other board member voted against the agreement and another abstained from voting. Mayor Vasquez adjourned the Agency meeting at 6:35 p.m.
The regular session of the Council's meeting began thereafter. During the meeting, the City Attorney announced approval of the Purchase and Sale Agreement.
The following day, November 24, 2009, after the revisions agreed to in the closed session were made, the Purchase and Sale Agreement, was executed. The parties to the Agreement are the Agency, as the buyer, and Sevacherian and Whittier Blvd. Properties, LLC (Whittier Blvd.), as the sellers. The purchase price of the properties is $3.2 million.
On December 23, 2009, Citizens sent an email to the City Attorney, attaching a cure or correct letter regarding the November 23, 2009 special meeting. In the letter, Citizens identified a number of issues that it alleged amounted to Brown Act violations and rendered null and void the actions taken at the Council's November 23, 2009 special meeting. Among Citizens's complaints were that: (1) no record existed of Mayor Vasquez calling the special meeting as statutorily required; (2) the Council's notice did not provide for public comment before the closed session listed on the agenda and the regular session did not open until after completion of the closed session; (3) the notice for the special meeting was not posted at the library or on the City's website; (4) the agenda items for the special meeting should have been heard at the Council's regular meeting on November 25, 2009, not at a special meeting two days earlier; and (5) no contracts from the closed session of the special meeting had been provided to the public. Citizens asked the Council to rescind all actions taken at the November 23, 2009 meeting and to reconsider them at a properly noticed regular meeting. No action was taken in response to Citizens's complaints.
2. Citizens's Amended Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief
On April 1, 2010, Citizens filed an amended petition for writ of mandate and complaint for declaratory and injunctive relief against the City, City Council and Agency, alleging numerous Brown Act violations with respect to the November 23, 2009 special meetings. Citizens named Sevacherian and Arsev, Inc. as real parties in interest.
In the first and second causes of action, Citizens alleged that the Council's special meeting notice violated the Brown Act because the open session was called for 6:30 p.m., yet the closed session was called for 5:30 p.m., and the closed session could not take place before the open session, thereby depriving the public of the right to comment on the Purchase and Sale Agreement that was discussed in the closed session. In the third and fourth causes of action, Citizens alleged that the special meetings of the Council and Agency had not been "called" as required by the Brown Act. In the fifth and sixth causes of action, Citizens alleged that the special meeting notices of the Council and Agency violated the Brown Act because they listed Sevacherian and his company Arsev, Inc. as the real property negotiators although Whittier Blvd., another company owned by Sevacherian, was the party to the Purchase and Sale Agreement and not Arsev, Inc. Citizens alleged in the seventh cause of action that the notices had not been placed in a location freely accessible to the public because homeless people blocked the information box containing the notices and in the eighth cause of action that the notices had not been delivered to and posted by the public library 24 hours before the meetings as was customary. In the ninth cause of action, Citizens alleged that, although it had requested a copy of the Purchase and Sale Agreement, the Agreement was not provided to it within the time specified by the Brown Act. Based on the alleged violations, Citizens sought declaratory relief in the tenth cause of action and injunctive relief in the eleventh cause of action.
In the trial court, Citizens did not pursue its seventh cause of action regarding the alleged violation based on the posting of notices in a place inaccessible to the public. On appeal, Citizens does not pursue its third and fourth causes of action asserting that Mayor Vasquez did not properly call the special meetings or its eighth cause of action alleging that the special meeting notices should have been posted at the public library 24 hours before the meetings. Those causes of action, therefore, are not at issue on appeal.
Also on April 1, 2010, Citizens filed an amendment to its petition and complaint substituting Whittier Blvd. for a doe defendant.
3. The Trial Court's Statement of Decision and Judgment Against Citizens
The parties submitted briefing and evidence on Citizens's petition and complaint, and the trial court held a hearing on December 9, 2010. After considering the parties' submissions and argument, on December 14, 2010, the court issued a tentative decision denying Citizens's petition and concluding that Citizens had no grounds for declaratory or injunctive relief. The court determined that Citizens's causes of action based on the claims that the closed session identified in the Council's notice improperly was held before the open session and that the notices of both the Council and Agency did not specify one of the real property negotiators "fail[ed] because it has been shown that there was substantial compliance with the [Brown] Act. There is insufficient evidence showing any breach of the intent of the Act." According to the court, Citizens did not prove that the special meetings of the Council and Agency had not been "called" as specified in the Brown Act. The court also decided that the alleged Brown Act violation based on a failure to timely deliver and post notices at the public library lacked merit because Citizens had not demonstrated the existence of such a requirement. Finally, the court found the evidence insufficient to find a Brown Act violation based on a failure to turn over the Purchase and Sale Agreement to a Citizens representative. The tentative decision ultimately became the court's statement of decision, and the court entered judgment against Citizens. Citizens timely appealed.
DISCUSSION
1. The Brown Act Facilitates Public Participation in Local Government Decisions and Curbs Misuse of the Democratic Process
"'The Brown Act requires that most meetings of a local agency's legislative body be open to the public for attendance by all.' [Citation.] Its objectives include facilitating public participation in local government decisions and curbing misuse of the democratic process by secret legislation. [Citation.]" (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1075.) In enacting the Brown Act, the Legislature found and declared "that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [¶] The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." (§ 54950.)
To implement the Legislature's intent, "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." (§ 54953, subd. (a).) In addition, "[n]o legislative body shall take action by secret ballot, whether preliminary or final." (§ 54953, subd. (c).) "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body . . . ." (§ 54954.3, subd. (a).) The same is true for special meetings: "Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item." (Ibid.) "Although a legislative body may reasonably regulate and limit the amount of time allocated to each speaker, it must ensure that the right of public comment is carried out (§ 54954.3, subd. (b)) and may not prohibit public criticism of the policies or actions of the legislative body (§ 54954.3, subd. (c))." (Galbiso v. Orosi Public Utility Dist., supra, 167 Cal.App.4th at p. 1076.)
"A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television stations requesting notice in writing. The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. . . . [¶] The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public." (§ 54956.)
The Brown Act authorizes a legislative body to consider certain matters in closed sessions. "Statutory exceptions authorizing closed sessions of legislative bodies are construed narrowly and the Brown Act 'sunshine law' is construed liberally in favor of openness in conducting public business." (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 917.)
With respect to closed sessions, as relevant here, "a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. [¶] However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate." (§ 54956.8.) An agenda describing a closed session regarding real property negotiations substantially complies with notice requirements by including the following information: "Property: (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation) [¶] Agency negotiator: (Specify names of negotiators attending the closed session)(If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent)) [¶] Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both)[.]" (§ 54954.5, subd. (b).)
"Prior to holding any closed session, the legislative body of the local agency shall disclose, in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda." (§ 54957.7, subd. (a).) In addition, "[a]fter any closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by Section 54957.1 of action take in the closed session. (§ 54957.7, subd. (b).) Required disclosures after a closed session include approval of an agreement concluding real estate negotiations pursuant to section 54956.8 and the substance of the agreement. (§ 54957.1, subd. (a)(1).) "The announcements required to be made in open session [both before and after a closed session] may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements." (§ 54957.7, subd. (c).)
In the case of a violation of the Brown Act, "[t]he district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section." (§ 54960.1, subd. (a).) Before the district attorney or an interested person commences such an action, he or she shall make a demand of the legislative body to cure or correct the alleged violation. (§ 54960.1, subd. (b).) "The demand shall be in writing and clearly describe the challenged action of the legislative body and the nature of the alleged violation." (Ibid.) A challenged action shall not be determined null and void if the legislative body has substantially complied with the specified statutory provision. (§ 54960.1, subd. (d)(1).) Further, "a violation of the Brown Act will not automatically invalidate an action taken by a local agency or legislative body. The facts must show, in addition, that there was prejudice caused by the alleged violation." (Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 670.)
2. Citizens Has Not Demonstrated a Violation of the Brown Act That Renders the Purchase and Sale Agreement Null and Void
Citizens contends that the notices for the November 23, 2009 special meetings of the Council and Agency violated the Brown Act in multiple respects and that those violations render null and void the Purchase and Sale Agreement approved in the closed session of the meeting. We disagree that the alleged violations invalidate the Purchase and Sale Agreement.
In its first and second causes of action against the City and Council, Citizens challenged the Council's meeting, alleging that the Council improperly noticed and held its closed session, including discussion of the Purchase and Sale Agreement, before the regular session, thereby depriving the public of the right to comment. According to Citizens, the Council could not conduct any business before the 6:30 p.m. start time on its meeting notice, it was required to hear public comment on the Purchase and Sale Agreement before holding the closed session and any actions taken during the closed session are invalid. The Council maintains that its practice was to notice a closed session before a regular session so that it could hold a joint closed session with the Agency.
Although the Council's practice of noticing closed sessions to commence before regular sessions does not appear to comport with the spirit of the Brown Act that public comment be heard before matters are discussed in closed session, its practice does not invalidate the Purchase and Sale Agreement in this case. The Council is not a party to the Agreement; the Agency is the purchaser of the properties. As the City Attorney testified in deposition, the Council did not need to list the discussions of the Purchase and Sale Agreement on its meeting notice because it is not a party to the Agreement. The Agency's notice provided for public comment before the closed session discussing the Purchase and Sale Agreement, and members of the public spoke at the Agency's open meeting before the closed session. In addition, members of the public spoke after the Council opened its meeting but before it began the closed session with the Agency. No evidence suggests that members of the public were misled by seeing only the notice of the Council and not the Agency so that they were unaware of the Agency meeting's 5:30 p.m. start time or simply arrived for the 6:30 p.m. start time of the Council's regular session after approval of the Purchase and Sale Agreement in the closed session. (See § 54960.1, subd. (d)(5) [no invalidation of legislative body's action for Brown Act violation if complainant had actual notice of the agenda item 24 hours before the meeting].) As a result, the Council's noticing of the closed session before its regular session meeting at 6:30 p.m. does not render the Purchase and Sale Agreement null and void.
Citizens's fifth cause of action against the City and Council and its sixth cause of action against the Agency likewise do not provide grounds for invalidating the Purchase and Sale Agreement. In those causes of action, Citizens alleged that the Purchase and Sale Agreement is null and void because the special meeting notices of the Council and Agency listed the negotiating parties as Sevacherian and Arserv, Inc. when the parties to the Agreement are Sevacherian and Whittier Blvd., not Arsev, Inc. Citizens did not present this alleged violation in its cure or correct letter, as required under section 54960.1, subdivision (b). Indeed, Citizens served a cure or correct letter only on the City and Council, which are not parties to the Purchase and Sale Agreement, and did not provide any cure or correct letter to the Agency, which is the party to the Agreement. Citizens maintains that no cure or correct letter was required with respect to the violation regarding the listing of the negotiating parties because it did not learn of the violation until after it had filed its original petition and complaint in this action. Even if that were the case, the alleged violation still does not invalidate the Purchase and Sale Agreement. Although the Agency's special meeting notice listed Sevacherian and Arsev, Inc., rather than Whittier Blvd., as the negotiating parties, both Arsev, Inc. and Whittier Blvd. are wholly owned by Sevacherian. In addition, no evidence suggests that the Agency listed Arsev, Inc. instead of Whittier Blvd. on its notice to mislead the public or that, if Citizens had known Whittier Blvd. was a negotiating party, members of the public would have voiced other complaints regarding the Agreement. Indeed, Citizens's representative testified in deposition that Citizens was not concerned with the identity of the actual sellers of the properties and would not have acted differently had it known that Whittier Blvd., not Arsev. Inc., was a seller. Under these circumstances, the evidence supports the trial court's conclusion that in terms of the listing of negotiating parties the Agency's notice substantially complied with Brown Act requirements. (See §§ 54954.5, subd. (b), 54960.1, subd. (d)(1).)
Although not alleged in its first amended petition and complaint, Citizens argued before the trial court, and repeats the argument on appeal, that the Council's and Agency's notices violated the Brown Act because they misrepresented the negotiator on behalf of the legislative body. The notices state that Jose Bazua, identified as the Director of Economic Development, is the agency negotiator. Citizens contends that the negotiator was not Bazua, but rather Nick Pacheco, whose services as the City administrator were terminated on December 9, 2009, after the change of power in the Council and Agency. Citizens's contention is based on evidence that Pacheco presented the revised Purchase and Sale Agreement to Sevacherian after its approval on November 23, 2009. Both the City Attorney and Sevacherian, however, testified in deposition that Bazua represented the Agency in the negotiations. The evidence thus does not establish a Brown Act violation based on the listing of Bazua as the agency negotiator. In another argument not alleged in its first amended petition and complaint, Citizens maintained that the Council's and Agency's notices violated the Brown Act because they did not identify whether the negotiations regarding the Purchase and Sale Agreement involved price or terms of payment or both, as required to authorize a closed session. (See § 54954.5, subd. (b).) The notices, however, stated that under negotiation was the Purchase and Sale Agreement, including direction to open escrow and approval of related resolutions. According to the evidence, the closed session resulted in revisions to the Purchase and Sale Agreement regarding relocation costs and sales and environmental issues, which could be construed as part of the price and terms of payment. Thus, the notices substantially comply with Brown Act requirements in section 54954.5, subdivision (b), for identifying the nature of real property negotiations authorized in a closed session.
In its ninth cause of action, based on section 54957.1, subdivisions (b) and (c), Citizens alleged that the City, Council and Agency failed to timely deliver a copy of the Purchase and Sale Agreement to its representative when requested. According to Citizens, although it requested a copy of the Agreement in December 2009 and January 2010, it did not receive a copy until March 2010. Citizens, however, acknowledges that such failure does not serve as grounds to invalidate the Agreement. (See § 54960.1, subd. (a) [specifying the statutory provisions for which a violation can lead to invalidation of the legislative body's action].) Moreover, section 54957.1, subdivisions (b) and (c), relate to requests for documentation from a closed session made before the legislative body's meeting. (§ 54957.1, subd. (b) ["legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings . . . if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements, or other documents that were finally approved or adopted in the closed session . . ."], subd. (c) ["documentation referred to in subdivision (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when any necessary retyping is complete"].) As noted, Citizens requested a copy of the Purchase and Sale Agreement in December 2009 and January 2010. It, therefore, does not fall within section 54957.1, subdivisions (b) and (c), and Citizens provides no other grounds for relief based on the failure of the City, Council or Agency to turn over a copy of the Purchase and Sale Agreement before March 2010.
No doubt exists that the actions of the Council and Agency in calling special meetings for November 23, 2009, and including the Purchase and Sale Agreement on their agendas for that evening, arouse suspicion in light of the imminent change in power that occurred before the regularly scheduled meetings of November 25, 2009. But none of Citizens's challenges based on the Brown Act serves as a basis to declare the Agreement null and void.
We decide only that the Brown Act violations alleged by Citizens regarding the notices for the November 23, 2009 special meetings do not render the Purchase and Sale Agreement null and void. Whether the Purchase and Sale Agreement is unenforceable for some other reason is not at issue here. We note the pendency of a lawsuit by Sevacherian and Whittier Blvd. against the Agency for breach of contract seeking to determine the Agreement's validity and alleging that, after Mayor Vasquez and Councilmembers Salazar and Urteaga left office, the Agency wrongfully refused to perform under the Purchase and Sale Agreement. (Sevacherian v. Community Redevelopment Agency of the City of Montebello (Super. Ct. L.A. County, 2010, No. BC437787).)
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DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal. NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur:
MALLANO, P. J.
JOHNSON, J.