Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BS099856, Robert H. O’Brien, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part; reversed in part.
Holland & Knight, Roger B. Coven for Defendant and Appellant.
Wm. Matthew Ditzhazy, Palmdale City Attorney and Aleshire & Wynder, LLP, and June Ailin for Plaintiffs and Respondents City of Palmdale and Community Redevelopment Agency of the City of Palmdale.
TURNER, P. J.
I. INTRODUCTION
Defendant, the Board of Directors of the Antelope Valley Healthcare District, appeals from a judgment issued after the trial court granted the mandate petition of plaintiffs, the City of Palmdale (“the city”) and the Community Redevelopment Agency of the City of Palmdale (“the agency”). The trial court ordered defendant to comply with the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) by: in the future conducting open and public discussions about the proposed development of a hospital in Palmdale on an approximately 30-acre site; discussing pending litigation in closed session only if the litigation has been properly identified and described in accordance with the Brown Act; and making and preserving for a one-year period an audio recording of all closed sessions. We affirm the judgment except as to the fifth cause of action.
All further statutory references are to the Government Code unless otherwise indicated.
II. BACKGROUND
On October 21, 2005, plaintiffs filed a mandate petition and injunctive relief request arising out of a dispute with defendant about the proposed development of a hospital on a 30-acre site in Palmdale which is owned by the agency. On February 6, 2006, plaintiffs filed a first amended petition which contained the following allegations. Defendant is the governing body of the Antelope Valley Healthcare District (“the district”) which was formed and functions pursuant to Health and Safety Code section 32000 et seq. In August 2001, plaintiffs entered into a Disposition and Development Agreement with Universal Health Services, Inc. and the Southern California Housing Development Corporation concerning the 30-acre site. The agreement called for the development of a hospital, a medical office building, and affordable rental housing for low-income elderly. On June 1, 2005, the city received a letter from the district offering to purchase the 30-acre site at defendant’s direction. The letter stated that that the district was offering to purchase the site as the first step in defendant’s adoption of a resolution of necessity to acquire the site by eminent domain. Also, it was alleged that on June 1, 2005, the district issued a press release announcing the purchase offer and stating its intent to construct its own hospital on the site. On June 2, 2005, a previously scheduled groundbreaking ceremony was held for the Universal Health Services, Inc. hospital facility.
On July 1, 2005, plaintiffs rejected the district’s purchase offer. Plaintiffs asserted the district’s proposal failed to comply with legal requirements for pre-condemnation purchase offers. According to plaintiffs, the district failed to give notice that an appraisal had been conducted and to include a summary of the valuation assessment with the offer letter. The district subsequently acknowledged the deficiencies in the June 1, 2005 offer later and stated its intent to conduct a reappraisal of the site. The city had received no other purchase offers from the district for the site. And the district has not withdrawn its authorization to acquire the site. The first amended petition alleges the district announced it had: obtained a $300 million construction loan; considered seeking approval of a property tax to help finance the facility; and issued documents and statements stating it intended to move forward with plans to build a hospital.
On July 29, 2005, plaintiffs filed a different mandate petition and complaint for injunctive and declaratory relief alleging violations of the Brown Act by defendant. That Brown Act case arose from defendant’s deliberations and actions relating to the district’s potential acquisition of the site prior to July 1, 2005. This initial petition was dismissed pursuant to section 54960.1, subdivision (e) because defendant “cured or corrected” the alleged violations of the Brown Act. The dismissal was upheld on appeal by Division Four of this appellate district. (City of Palmdale v. Board of Directors of Antelope Valley Healthcare District (June 26, 2007, B191149) [nonpub. opn.].)
With respect to the current case, the first amended petition further alleged that the Brown Act requires defendant to transact its business in open and public meetings. On August 30, 2005, defendant held a special meeting on 24 hours notice. The agenda for the meeting stated defendant would adjourn to executive session to discuss trade secrets and anticipated litigation. The agenda did not provide any indication that defendant would be discussing: Universal Health Services, Inc.’s development of the site; the district’s acquisition and development of the site; or the then pending lawsuit which was dismissed and later affirmed by our Division Four colleagues on June 26, 2007. The first amended petition in the current action alleged that defendant discussed the aforementioned items in a closed session but had no discussion of the issues in an open session. The first amended petition contained five causes of action for alleged violations of the Brown Act for closed session discussions which allegedly occurred on August 30, 2005 concerning: the Universal Health Services, Inc. development of the site (first); the district’s development of a hospital on the site (second); a negotiated purchase of the site (third); the use of defendant’s eminent domain power to acquire the site (fourth); and the then pending lawsuit against defendant (fifth). Plaintiffs also sought injunctive relief in the sixth cause of action based on defendant’s failure to comply with the Brown Act. The first amended petition alleged that defendant had established a pattern and practice of improperly conducting business in closed session and special meetings. Defendant’s past practices had led to investigations by the Los Angeles County District Attorney’s Office. The investigation arose from multiple violations of the Brown Act including holding unauthorized closed sessions and denial of the public’s right to address defendant. It was alleged defendant refused to acknowledge or correct the violations and continued to discuss in closed session without public notice issues related to the site in violation of the Brown Act.
On May 15, 2006, the trial court dismissed plaintiff’s claims for relief based upon alleged discussions about the negotiated purchase of the site and the use of defendant’s eminent domain power to acquire the site in the third and fourth causes of action respectively. The trial court also ordered defendant to lodge under seal the minutes of the August 30, 2005 closed session. On May 30, 2006, defendant answered the first amended petition.
On August 31, 2006, the trial was held on the remaining claims in the first amended petition. Plaintiffs argued that defendant had violated the Brown Act by conducting a closed session on August 30, 2005. During that closed session, development of the hospital by defendant and Universal Health Services, Inc. was discussed. Plaintiffs also argued that the prior lawsuit was discussed. Also, plaintiffs argued that the August 30, 2005 closed session was part of defendant’s practice between April 2005 and May 2006 of using the justification that trade secrets were being discussed to unlawfully hold closed sessions. Plaintiffs contended that the numerous lengthy executive sessions evidenced noncompliance with the Brown Act. Plaintiffs submitted: the minutes from the special public session on August 30, 2005; several newspaper articles; releases from the district; letters to and from the Los Angeles County District Attorney’s Office; a number of defendant’s agendas, executive session minutes, and public session minutes; the agendas of 50 board meetings for the period from April 2004 through May 2006; and the minutes of 36 board meetings from April 2004 through August 2005. The newspaper articles were offered to show defendant’s trade secret claims lacked merit because of the controversy over the site, including its position on the development, was public knowledge and not secret in any manner. The district attorney correspondence was introduced to show that defendant had been investigated in the past for alleged Brown Act violations.
Plaintiffs presented declarations and exhibits including defendant’s August 30, 2005 agenda. The agenda for the special meeting provided that there would be an open session at 5 p.m. The public proceedings were to be followed by an executive or closed session. The agenda provided that in the closed session four items would be discussed, three of which were identified as “trade secrets’ pursuant to Health and Safety Code section 32106. They are identified in the agenda as “Proposed New Service”, “Proposed New Program”, and “Proposed New Facility.” Defendant, pursuant to court order, submitted the unredacted minutes of the August 30, 2005 closed session under seal pursuant to section 54957.2, subdivision (a). The minutes show that the closed session took place between 5:12 p.m. until 6:50 p.m. Defendant returned to open session at 6:56 p.m. and adjourned at 7:09 p.m.
As noted, plaintiffs argued that the agenda for the August 30, 2005 meeting indicated the executive session would involve discussion of trade secrets pursuant to Health and Safety Code section 32106. The only public session item identified in the agenda was, “Adopt Resolution 083005-Healthcare Services For All Antelope Valley Residents.” Resolution 083005, which was adopted in the open session provided in part: “1) The Antelope Valley District encourages the development of a new hospital in Palmdale. [¶] 2) The District acknowledges the City of Palmdale for their hard work and efforts to encourage the development of a full-service hospital in Palmdale. [¶] 3) The District believes it is our moral obligation to ensure that any new hospital in Palmdale receiving public funds must serve all patients in need, with a full and permanent Medi-Cal contract. 4) The District will support Universal Health Services, Inc., if they have and maintain 35 emergency room beds as promised upon opening, along with a full service Medi-Cal contract to serve all patients in need.” However, plaintiffs pointed out that the executive session lasted 1 hour and 38 minutes; the public session lasted 13 minutes; and the minutes of the public session have no discussion of Resolution 083005.
In opposition, defendant presented the declaration of Les Wong, the district’s chief executive officer. Mr. Wong declared that: the city is within the boundaries of the district; since the Universal Health Services, Inc. contract was entered into, the district has been very concerned about the nature and scope of the project; the city was providing public funds estimated to exceed $13 million in support of the project; defendant supports and encourages the development of a new, full-service hospital in Palmdale; and defendant believes any new hospital must include at least 35 emergency room beds and must have a full-service Medi-Cal contract to serve all patients in need. Lorena Firth, Mr. Wong’s executive assistant, attended the August 30, 2005 meeting including the closed session. She declared that there was no discussion of the prior litigation resolved by our Division Four colleagues.
Defendant presented a number of evidentiary objections to plaintiffs’ evidence. Defendant opposed the first amended petition on the grounds: it was politically motivated and not about the Brown Act; there was no proof it violated the Brown Act on August 30, 2005, or at any time; there was no evidence that Resolution No. 083005 was discussed in a closed session; there was no evidence the development of the site was discussed in closed session; even if defendant had discussed the development of the site in closed session, it was authorized by the Health and Safety Code section 32106 trade secret exception to the Brown Act; plaintiffs made no argument and offered no evidence to support the claim that defendant improperly discussed the then pending litigation; and there is nothing to show prior Brown Act violations or any evidence to support injunctive relief.
In reply, plaintiffs argued that the evidence concerning the length of the closed session coupled with the evidence of patterns and trends establish a violation of the Brown Act. According to plaintiffs, the matters discussed in the closed session do not qualify as “trade secrets” exceptions. Plaintiffs further argued that they had not abandoned the claim that defendant violated the Brown Act by discussing the then pending litigation in the August 30, 2005 closed session.
The matter was tried on August 31, 2006. After argument, the trial court took the matter under submission and issued an order on September 6, 2006. The mandate petition was granted as to the claims in the first, second, and fifth causes of action. The trial court found in defendant’s favor on the sixth cause of action for injunctive relief. All evidentiary objections were overruled. The trial court ruled that certain newspaper articles submitted by plaintiffs were not introduced for the truth of the matters asserted but as indications of the publicity of the issues involved. The trial court implicitly determined that in the August 30, 2005 closed session and in violation of the Brown Act, defendant’s members improperly discussed: the development of the site by Universal Heath Services, Inc. (first); the development of the site (second); and the then pending lawsuit (fifth). The trial court found and concluded: “The lawsuit involves political posturing by both sides relating to who should develop what kind of hospital and where it should be. Regardless of whose position is the better policy or choice for development of a hospital, the essence of this lawsuit is simply whether there should be public discussions by these public agencies of the subject matter as required by the Brown Act. [Defendant] alleges that the subject matter falls within a ‘trade secret’ exception.’ [¶] The court has reviewed in camera the submitted Executive Session minutes of [defendant’s August 30, 2005] meeting. . . . Health and Safety Code section 32106 [subdivision] (c) requires any assertion of ‘trade secret’ to meet the definition of Civil Code section 3426.1. [Defendant] fails to show that the information sought to be kept secret ‘derives economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use….’ The fact that [defendant] may be vying with . . . [plaintiffs], for the privilege of developing a hospital is not the type of competition that the legislature was concerned with in enacting Health and Safety Code section 32106 [subdivision] (c). Presumably, both public agencies will be working toward providing needed hospitals for the public they serve. [¶] The information presented, and discussed at the [August 30, 2005] meeting, simply did not show any ‘economic value’ that [the board] can derive from its discussion being kept from disclosure. [¶] Moreover, although the discussion of the pending lawsuit (BA098249) appears to have been discussed, the court does not find it was properly agendized.”
On September 11, 2006, plaintiffs submitted a proposed judgment. Defendant objected to the proposed judgment. Defendant argued the proposed judgment provided for injunctive relief and the trial court made no any findings against defendant on the sixth cause of action for injunctive relief. The trial court overruled defendant’s objections ruling: “The fact that the mandate judgment may sound like a ‘mandatory injunction’ does not conflict with the Court’s order. The Court did not find for [plaintiffs] on the [sixth] ‘Cause of Action’ for injunction based on the fact of insufficient evidence to find a ‘pattern and practice’ of violation of the Brown Act; not that a mandate should not issue. An ‘injunction’ is a remedy and not a cause of action; thus, rejection of the [sixth] cause of action based on the assertion in that cause of action is irrelevant. An injunction pursuant to [Code of Civil Procedure section] 1085 is still available as a remedy to the other causes of action. [¶] Further, although minutes of properly closed sessions are to be kept confidential, the [August 30, 2005] meeting was not properly closed for the reasons stated above. Thus, the minutes of the [August 30, 2005] meeting, if otherwise a public record open to public viewing, must be disclosed.”
Judgment was entered on September 19, 2006. Defendant was ordered to: conduct all future discussions and take any future actions with regard to the 30-acre site in a public meeting except when closed sessions were clearly authorized by the Brown Act, are reasonably required in light of all of the circumstances, and are properly described on the meeting agenda; discuss pending litigation in closed session only if the discussion concerning litigation had been properly identified and described in accordance with sections 54954.5 subdivision (c) and 54956.9; make an audio recording of all closed sessions; label and preserve the recording for a period of 1 year after the closed session in question subject to confidentially standards set forth in section 54957.2 and disclosure pursuant to section 54960, subdivision (c); and deliver to plaintiffs a copy of the August 30, 2005 closed session minutes which at that time were filed under seal and file a return within 30 days after service of the writ. The writ of mandate was issued on September 20, 2006. Notice of entry of judgment was served on September 20, 2006.
Defendant filed a new trial motion on October 3, 2006. Defendant argued: the trial court abused its discretion (Code Civ. Proc., § 657, subd. (1)); the evidence was insufficient (Code Civ. Proc., § 657, subd. (6)); the decision was contrary to law (Code Civ. Proc., § 657, subd. (6)); and there was an error in law. (Code Civ. Proc., § 657, subd. (7).) Plaintiffs opposed the new trial motion. Defendant filed a reply to the opposition.
The new trial motion was argued on November 7, 2006. On November 14, 2006, after taking the matter under submission, the new trial motion was denied. The order denying the new trial motion provides in part: “The court found for [plaintiffs] on the first, second, and fifth causes of action for writ of mandate (ref. First Amended Petition and Prayer, par. 1). [Defendant] violated the Brown Act as alleged with regard to the August 30, 2005 closed session. [¶] The judgment set out four requirements [defendant] must comply with as remedies to cure the violation, including mandamus and injunctive relief. [¶] Injunctive relief is a proper remedy for the subject violation for the purpose, inter alia of ‘stopping or preventing violations or threatened violations of the Brown Act (Gov. Code, § 54960). The ‘injunctions’ are in the judgment not to redress past violations, but to stop current ongoing violations and threatened future violations. [¶] [Defendant] asserts there is ‘no record support for the findings on the first, second and fifth causes of action.’ The court, pursuant to Civil Code section 3426.5, read and considered, in-camera, the minutes of the closed session of the August 30, [2005] meeting. [Defendant’s] position gives no credence to the court’s in-camera review of the minutes of the August 30, 2005 closed session. [¶] The court was obliged to review the August 30, [2005] minutes of the closed session pursuant to the Health and Safety Code section 32106 and Civil Code section 3426.1 et seq. [Defendant] argues that Health and Safety Code section 32106 provides that ‘health care facility trade secrets’ ‘include’ trade secrets as defined in Civil Code section 3426.1…. [¶] Health and Safety Code section 32106 does not merely ‘include’ the Civil Code section 3426.1 definition of trade secret. [Health and Safety Code,] section 32106 provides that ‘Health Care facility trade secrets’ ‘means’ a ‘trade secret’—‘as defined’ in section 3426.1 [, subdivision] (d). Thus, if the subject of what [defendant] says is a ‘health care facility trade secret’ does not meet the definition of trade secret in Civil Code section 3426.1 [subdivision] (d), then there is no such privilege, as is the case here. [¶] The court’s review of the August 30, [2005] minutes, which is the principal subject of the petition for mandate, revealed that there are no ‘trade secrets’ referred to therein, and that the Brown Act was violated as alleged. Whether an item is a trade secret is a question of law. [Citation.] [¶] There being no trade secret involved, [defendant] was obliged not to have an executive session on August 30, [2005] and having done so violated the Brown Act. [¶] The judgment sets out the remedies for such violation. The argument that a ‘mandatory injunction’ is not appropriate fails because remedies for Brown Act violations are somewhat unique. Such remedies are not necessarily tied to general concepts of ‘mandatory injunction.’ An injunction is merely a remedy and must be applied to address a particular situation, as here. [¶] Although the court did not find for petitioners on the sixth cause of action for ‘injunctive relief’ it did not ‘recognize’ the standard of allowing injunction only if there is a pattern or practice of past actions. The court has inferred that the current controversy between the parties, which includes [defendant’s] insistence that the subject matter is a trade secret, will continue unless enjoined.” On November 27, 2006, defendant filed a notice of appeal from the judgment and the order denying the new trial motion.
On June 14, 2007, defendant moved to lodge with this court under seal the August 30, 2005 minutes of the closed session. On June 19, 2007, we issued an order to show cause regarding whether the documents could remain sealed once they were filed in court as part of the adjudication of a dispute. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217; Burkle v. Burkle (2006) 135 Cal.App.4th 1045, 1051.) On September 26, 2007, we issued an order partially unsealing the record “as to the five lines which were reviewed by the trial court” and which apply to the present dispute. On October 9, 2007, defendant filed the unredacted minutes of the August 30, 2005 closed session.
III. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1085 subdivision (a) provides, “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” Under Code of Civil Procedure section 1086: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” There are two requirements for a writ to issue. First, there must be a clear, present, and usually ministerial duty upon the part of the respondent. Second, there must be a clear, present, and beneficial right in the petitioner to the performance of that duty. (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 925; Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 618.) We apply a deferential standard of review determining whether the findings and judgment are supported by substantial evidence; however, questions of law are independently reviewed when the facts are undisputed. (Inglewood Redevelopment Agency v. Aklilu (2007) 153 Cal.App.4th 1095, 1114; Armando D. v. State Dept. of Health Services (2004) 124 Cal.App.4th 13, 21.)
B. The Statutory Requirements
Defendant asserts there is no substantial evidence its members improperly discussed three matters in the August 30, 2005 closed session in violation of the Brown Act. The Supreme Court has held: “The Brown Act was adopted to ensure the public’s right to attend the meetings of public agencies. (§ 54950)” (Freedom Newspapers Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 825; accord Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 331.) The Brown Act requires the local agencies to hold meetings open to the public except as expressly authorized by statute. (§§ 54953, 54962; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 374; Kleitman v. Superior Court, supra. 74 Cal.App.4th at p. 331; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234.) The local body must determine a regular time and place for holding meetings, the agendas of which must be posted with at least 72 hours notice. (§§ 54954, 54954.2.) The local agency may hold special meetings with at least 24 hours notice and the notice must, among other things, specify the business to be transacted or discussed. (§ 54956.) Discussion of any business not identified in the agenda or in the notice is prohibited during a regular or special meeting. (§§ 54954.2, 54956; Moreno v. City of King (2005) 127 Cal.App.4th 17, 26.) Closed sessions are permitted under certain specified circumstances to discuss: a security threat (§ 54957, subd. (a)); personnel matters (§ 54957, subd. (b)); the purchase or sale of real property with a negotiator (§ 54956.8 ); and, on advice of an attorney, discussing legal counsel a pending eminent domain proceeding if a public discussion would prejudice the local agency in the litigation. (§ 54956.9.) (See also Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 914; Kleitman v. Superior Court, supra. 74 Cal.App.4th at p. 331.) A closed session to discuss “trade secrets” is specifically excepted from the Brown Act in Health and Safety Code section 32106. Civil Code section 3426.1, subdivision (d) defines a “trade secret” as follows: “‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: [¶] (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
Section 54954.2 provides: “(a)(1) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public. If requested, the agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. The agenda shall include information regarding how, to whom, and when a request for disability related modification or accommodation, including auxiliary aids or services may be made by a person with a disability who requires a modification or accommodation in order to participate in the public meeting. [¶] (2) No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda. [¶] (b) Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item. [¶] (1) Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5. [¶] (2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a). [¶] (3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken. [¶] (c) This section is necessary to implement and reasonably within the scope of paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution.”
Section 54956 provides: “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 station 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. No other business shall be considered at these meetings by the legislative body. . . . [¶] 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.”
Section 54956.8 provides: “Notwithstanding any other provision of this chapter, 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. [¶] For purposes of this section, negotiators may be members of the legislative body of the local agency. [¶] For purposes of this section, ‘lease’ includes renewal or renegotiation of a lease. [¶] Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9.”
Section 54956.9 states in part: “Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. . . . [¶] For purposes of this section, litigation shall be considered pending when any of the following circumstances exist: [¶] (a) Litigation, to which the local agency is a party, has been initiated formally. [¶] (b)(1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. [¶] (2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision. . . . [¶] (c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. [¶] Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. . . .”
Health and Safety Code section 32106 states: “(a) Except as provided in this section, Section 32155, or the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) all of the sessions of the board of directors, whether regular or special, shall be open to the public, and a majority of the members of the board shall constitute a quorum for the transaction of business. [¶] (b) The board of directors may order that a meeting held solely for the purpose of discussion or deliberation, or both, of reports involving district trade secrets be held in closed session. Except as provided in this subdivision, the closed session shall meet all applicable requirements of Chapter 9 (commencing with Section 54950) of Division 2 of Title 5 of the Government Code, including Section 54957.7. [¶] (c) ‘Health care facility trade secrets,’ as used in this section, means a ‘trade secret,’ as defined in subdivision (d) of Section 3426.1 of the Civil Code, and in addition meets all of the following: [¶] (1) Is necessary to initiate a new district service or program or add a district health care facility. [¶] (2) Would, if prematurely disclosed, create a substantial probability of depriving the district of a substantial economic benefit. [¶] (d) The exception provided in subdivision (b) to the general open meeting requirements for a meeting of the board of directors, shall not apply to a meeting where there is action taken, as defined in Section 54952.6 of the Government Code. [¶] (e) Nothing in this section shall be construed to permit the board of directors to order a closed meeting for the purposes of discussing or deliberating, or to permit the discussion or deliberation in any closed meeting of any proposals regarding: [¶] (1) The sale, conversion, contract for management, or leasing of any district health care facility or the assets thereof, to any for-profit or nonprofit entity, agency, association, organization, governmental body, person, partnership, corporation, or other district. [¶] (2) The conversion of any district health care facility to any other form of ownership by the district. [¶] (3) The dissolution of any district.”
Section 54960 provides for actions by mandamus or for injunctive or declaratory relief to prevent actual or threatened violations of the Brown Act. Section 54960, subdivision (a) states that “any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of” the act “by members of the legislative body of a local agency or to determine the applicability of” the act “to actions or threatened future action of the legislative body. . . .” (See Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 526.) Section 54960, subdivision (b) states, “The court in its discretion may, upon a judgment of a violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative body to tape record its closed sessions and preserve the tape recordings for the period and under the terms of security and confidentiality the court deems appropriate.” Thus, although there is no requirement for the local agency to keep minutes or make tape recordings of a closed session, a trial court in its discretion may make such an order upon a judgment of a violation of the Brown Act. (§ 54960, subd. (b); Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 332.)
C. Evidence Regarding Improper Discussions
1. First and second causes of action
There is substantial evidence to support the trial court’s findings that defendant violated the Brown Act on August 30, 2005, in connection with the Universal Health Services, Inc. issue and development of the site in the closed session as alleged in the first and second causes of action respectively. The closed session lasted 1 hour and 38 minutes. The unredacted minutes shows that a discussion was held in the executive session concerning Universal Health Services, Inc. The development of the site as well as defendant’s concerns about the project were a matter of controversy with plaintiffs. The controversy included plans and actions by defendant to acquire the site for its own development. Although defendant did not identify the development of the site on the agenda, inferences can be made that a discussion occurred on the issue. The closed session lasted 1 hour and 38 minutes. The length of the closed session was followed by a brief 13-minute open meeting in which defendant adopted a resolution concerning the development of the site. No discussion is referred to in the minutes of the public session regarding the development just the adoption of the resolution. The trier of fact was also free to reject defendant’s trade secret assertions in light of the absence of any evidence to support them. Further, the trier of fact, could rely on that false justification for the closed session as evidence the additional claim the development was not discussed was untrue. (See Nelson v. Black (1954) 43 Cal.2d 612, 613; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 312, p. 357.) An inference can be made that, although the development was not identified as an item in the agenda, it was discussed in the closed session prior to the adoption of the resolution. Discussion of items during the closed session which were not on the agenda is prohibited. (§ 54956; Moreno v. City of King, supra, 127 Cal.App.4th at p. 26.) The trial court determination’s defendant violated the Brown Act as alleged in the first and second causes of action is supported by substantial evidence. (Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at pp. 912, 917-918.)
Likewise, defendant has not established that the trial court erred in rejecting the “trade secret” claim. There is no evidence defendant’s members discussed anything about the development which amounts to a “trade secret” as defined by Health and Safety Code section 32106 and Civil Code section 3426.1, subdivision (d). Defendant denies any discussion at all took place in the closed session regarding development of the site. The trial court could reasonably conclude defendant failed to prove a trade secret was discussed in the closed session.
2. Fifth cause of action
As to the fifth cause of action, we agree with defendant that there is no substantial evidence there was any improper discussion on August 30, 2005, concerning the prior Brown Act litigation which resulted in the dismissal which was affirmed by our Division Four colleagues. There is no evidence the subject was discussed on August 30, 2005. Hence, we reverse the judgment as to the fifth cause of action.
D. The Remedy
Defendant argues that the evidence did not warrant the injunctive relief granted to plaintiffs. We apply the deferential abuse of discretion standard of review in evaluating the propriety of the injunctive order. (Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at p. 911; San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 952.) As noted, there was substantial evidence defendant had a practice of conducting closed sessions and the asserted justification for the unlawful meetings that a trade secret was discussed is entirely factually unsupported. The trial court could reasonably conclude that it will be very difficult for plaintiffs and others to prevent future Brown Act violations by defendant. This particularly true given defendant’s unwillingness to agree its practices violate the Brown Act. (California Alliance for Utilities Safety and Education v. City of San Diego (1997) 56 Cal.App.4th 1024, 1030 citing Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524.) In similar circumstances, Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at page 917 explained that a trial court is justified in issuing injunctive relief under section 54960 when past practices are coupled with continuing contentions that unlawful practices are valid. Shapiro explained: “We believe that the trial court was justified in concluding that [the local entity’s] conduct in pursuing its contentions that it may interpret and adjust the requirements of the Brown Act as it sees fit, in dealing with a particular project, clearly demonstrates that more than past violations have occurred or will reasonably probably occur in the immediate future. We conclude that the Brown Act authorizes injunctive relief that is based on, in relevant part, a showing of ‘past actions and violations that are related to present or future ones,’ and there was no abuse of discretion in the trial court’s grant of injunctive relief against future such actions and violations. [Citation.].” (Id. at p. 917.) In the case at bench, given defendant’s past practices coupled with its insistence that it did nothing wrong, the trial court implicitly determined that there was a likelihood that the conduct would continue to occur. As a result, section 54960 authorized the trial court to grant the relief for the purpose of stopping or preventing actual or threatened violations of the Brown Act.
IV. DISPOSITION
The judgment is reversed as to the fifth cause of action but is affirmed in all other respects. Plaintiffs, the City of Palmdale and the Community Redevelopment Agency of the City of Palmdale, are to recover their costs incurred on appeal from defendant, the Board of Directors of the Antelope Valley Healthcare District.
We concur: MOSK, J. KRIEGLER, J.