Opinion
D083068
07-17-2024
CITY OF RIVERSIDE, et al., Plaintiffs and Appellants, v. COUNCILMEMBER CHARLES CONDER, et al., Defendants and Respondents
Phaedra A. Norton, City Attorney, Rebecca L. McKee-Reimbold, Jack C. Liu, Assistant City Attorneys, Debra K. Cook, Jacob S. Guerard, and Judith N. Gallardo, Deputy City Attorneys, for Plaintiffs and Appellants. Pacheco & Neach, Rod Pacheco, Eric Fromme and David Sire for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County No. CVRI2300725, Eric A. Keen, Judge. Affirmed.
Phaedra A. Norton, City Attorney, Rebecca L. McKee-Reimbold, Jack C. Liu, Assistant City Attorneys, Debra K. Cook, Jacob S. Guerard, and Judith N. Gallardo, Deputy City Attorneys, for Plaintiffs and Appellants.
Pacheco & Neach, Rod Pacheco, Eric Fromme and David Sire for Defendants and Respondents.
KELETY, J.
The City of Riverside and the Riverside City Council (collectively, the City) appeal from an order denying a request for a preliminary injunction enjoining Councilmember Charles Condor and former Councilmember Steven R. Adams (collectively, the Councilmembers) from disclosing confidential information obtained during closed sessions pursuant to the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et seq.). The City contends that it was statutorily entitled to injunctive relief, and that the trial court erred by misinterpreting the Brown Act, ignoring uncontroverted evidence in its favor, and improperly abdicating its jurisdiction to another, previously disqualified judge. We find no error and affirm the trial court's order.
Further unspecified statutory references are to the Government Code.
FACTUAL AND PROCEDURAL BACKGROUND
The alleged confidential information the City seeks to protect relates to litigation between the City and Tony Platt ("the Platt litigation"). Platt sued the City for breach of contract, among other related claims, and the City countersued. As relevant here, Platt alleged that he entered into an agreement with the former airport director, Mark Ripley, to take control of and move a deteriorating hangar at the Riverside Municipal Airport in exchange for a long-term lease to the ground underlying the new location. Platt alleged that he performed under the agreement, at a significant expense, but when Ripley retired, the City failed to negotiate the contemplated long-term lease in good faith.
Tony Platt v. City of Riverside, Riverside Superior Court, No. RIC1822011, the Honorable O.G. Magno presiding.
The City moved for summary judgment in January 2021, and Adams filed a declaration in opposition to the motion. Adams declared he was an elected member of the Riverside City Council from 2004 to 2015, and from 2017 to 2019, and thus had firsthand knowledge of the Riverside Municipal Airport Master Plan approved by the City Council in 2009. He explained that the plan called for the demolition and removal of a deteriorating four plane hangar but, rather than destroy the hangar, Platt negotiated with Ripley to move it to a new location within the airport, at his own cost. In exchange, Platt would take ownership of the hangar, at least temporarily, and would receive a 20-year ground lease for the new location, with an option to extend for an additional 10 years.
Adams declared further that Platt moved the hangar, at a cost of about $200,000, but negotiations over the lease stalled when Ripley retired. The lease came before the Riverside City Council twice during Adams's tenure, each time in closed session, from which Platt and his representatives were excluded. Adams referenced three specific meetings, one in July and two in October 2019, and discussed topics the council considered, two votes the council took, and instructions the council gave to the City Attorney. According to Adams, the council consistently ratified Platt's alleged agreement with Ripley, but the City Attorney failed to provide a long-term lease for their approval.
The City redacted certain details in the copy of the declaration it submitted in the trial court, and they remain redacted on appeal.
The City asked Platt's counsel to withdraw the declaration and lodged a formal objection and motion to strike it in the trial court. Debra Cook, Deputy City Attorney, asserted the Adams declaration contained information acquired during a closed session, and provided her own declaration in which she averred that Adams had "revealed confidential communications held in closed counsel session with the City Attorney" in violation of the Brown Act. Cook asserted further that the "declaration purports to provide confidential settlement communications," which were also protected from public disclosure.
The trial court granted summary adjudication as to five of the six causes of action in Platt's complaint but denied the City's summary judgment based on Platt's breach of contract claim. In the associated written order, the trial court sustained the City's objection to the Adams declaration "based on lack of personal knowledge, improper parole evidence, relevance, and, to the extent communications with the City's counsel are involved, attorney-client privilege." However, as to the breach of contract claim, the trial court found, "The testimony of former Airport Director Ripley and former councilman Adams create a triable issue of fact as to whether the City negotiated [the long-term lease] in good faith."
Platt submitted a witness list for trial in October 2022. The list included Adams and Condor, among others. Adams was to testify "regarding policies and County procedure of approval of long-term leases at airport, authority of Ripley to negotiate Platt ground lease, airport master leasing plan and rental rates approved by City Council in January 2015, threats by Kristi Smith, acting City Attorney, to coerce Adams to withdraw his declaration." Condor was to testify "regarding terms negotiated by Ripley and approval of such by the City Council and directions to the City Attorney to present terms and prepare documents that complied with the City Council's instructions."
On the eve of trial, the City filed a motion to disqualify Platt's counsel, Rod Pacheco, based on his alleged receipt of confidential information from Adams and Condor. The Councilmembers each submitted declarations in opposition. They asserted the City Attorney did not represent them personally and Pacheco had not solicited privileged information from them. Pacheco likewise averred that he did not solicit privileged information from any witness, including the Councilmembers. Platt's former counsel, John Lobherr, said that he learned about the City Council's actions directly from the City Attorney and attached copies of letters from the City Attorney. On January 10, 2023, the trial court, Judge Magno presiding, denied the motion.
Meanwhile, on December 29, 2022, the City filed an ex parte application for a temporary restraining order (TRO) and order to show cause for a preliminary injunction enjoining the Councilmembers from disclosing confidential communications between the City Council and City Attorney during closed sessions of the council. Platt's counsel appeared at the hearing but-apparently due to some scheduling changes-the City Attorney did not. The trial court, the honorable Judge Craig Reimer presiding, denied the request. The City re-noticed the same ex parte application on January 4, 2023, and Judge Magno likewise denied the City's request.
On February 14, 2023, the City filed a petition for writ of mandate (Petition) in the case now pending before us, i.e., a case separate from the Platt litigation. The same day, the City also filed its ex parte application for a TRO and order to show cause in the case. In the Petition, the City alleged it was acting through the City Council, its highest authorized officer, in the Platt litigation, and therefore the City Council was a" 'client'" of the City Attorney. The City alleged further that the City Council was a legislative body as defined by the Brown Act; that the City Council met with the City Attorney regarding the Platt litigation in at least nine closed sessions pursuant to section 54956.9 of the Brown Act; and that the Councilmembers disclosed confidential information obtained in those closed sessions to Platt and his attorneys in violation of section 54963. The City pointed to the declaration Adams submitted in the Platt litigation, and asserted that Condor had previously disclosed confidential information obtained in closed sessions regarding a different litigation between the City and the owners of the Icetown skating rink. The City sought injunctive and declaratory relief precluding future disclosures.
In the ex parte application, the City sought a TRO and preliminary injunction "restraining and enjoining [the Councilmembers] from disclosing confidential and/or privileged or otherwise legally protected information that [they] acquired by being present in the Platt litigation closed sessions of the City Council . . . to any person not entitled to receive the confidential information, including but not limited to, the Platt representatives, the Court, any jury or fact finder in [the Platt litigation], unless the City, acting by and through its legislative body and highest authority, the City Council, waives the attorney-client privilege and/or authorizes disclosure of the confidential information pursuant to [section] 54936 [subdivisions] (a) and (b) by majority vote."
The ex parte application came before the Honorable Judge Daniel Ottolia on February 16, 2023. Neither Platt nor his counsel were present at the hearing. Judge Ottolia noted, "everything arising from this case seems to be associated with the Platt litigation," and thus, he intended to designate the cases as related, so they would both be heard by Judge Magno. The City said the trial for the Platt litigation was set to start the following Tuesday and asked the court to issue a TRO to ensure the Councilmembers did not make further disclosures over the weekend during trial preparations. The trial court agreed and signed the proposed order the City had submitted, granting a TRO enjoining the Councilmembers from disclosing "closed session information obtained in their official capacity," but set the expiration date for the following week.
The ex parte came before Judge Magno on February 21, 2023. Judge Magno said he intended to continue the trial in the Platt litigation to resolve the questions regarding the Councilmembers' testimony. He asked the City to lodge the redacted portions of the Adams declaration under seal, but the City asserted it would be a violation of the Brown Act to disclose the confidential information to the court, even under seal. The City said that Judge Ottolia had issued a temporary restraining order and, in doing so, had found that the City was likely to prevail on the merits. After further discussion, Judge Magno stated his understanding was that Judge Ottolia had simply maintained the status quo until Judge Magno could hear the ex parte application himself.
The trial court set a briefing schedule for the ex parte application but, on March 2, 2023, Debra Cook, Deputy City Attorney, filed a declaration under Code of Civil Procedure section 170.6 requesting the disqualification of Judge Magno in the writ litigation. Judge Magno approved the City's request for disqualification and the Petition and associated ex parte application were reassigned once again.
The Honorable Judge Eric A. Keen next addressed the ex parte application on March 16, 2023. Judge Keen granted the City's request for a TRO, and explained that his intent was to "hit the pause button" and "preserve the status quo" until the defense could have an opportunity to respond. He issued an order to show cause on the request for preliminary injunction and set a briefing scheduling.
On April 14, 2023, Judge Keen issued a tentative decision granting the request for a preliminary injunction. He explained, "Respondents are permitted to testify as to non-confidential, non-privileged information. What exactly that constitutes will be decided by the judge in the Platt litigation. [¶] For now, the COURT WILL ISSUE A PRELIMINARY INJUNCTION that precludes Respondents from disclosing any confidential information obtained in a closed session (per the Brown Act) and any attorney-client communications with the City Attorney."
After a brief stay by the Court of Appeals related to a second motion for disqualification, Judge Keen held argument on the request for preliminary injunction on June 16, 2023. The Councilmembers asserted the language of the proposed preliminary injunction in the court's tentative constituted an impermissibly vague prior restraint, and the parties would continue to disagree as to what information was protected. They asserted further that the preliminary injunction was not warranted because the City did not present evidence that either Councilmember disclosed confidential information, and therefore could not establish a probability of success on the merits. The trial court found the Councilmembers were already covered by the Brown Act, that Judge Magno was in a better position to make rulings regarding their testimony, and that the City had not established a likelihood of success on the merits. Accordingly, the court reversed its tentative and denied the City's request for a preliminary injunction.
The City filed a timely notice of appeal.
DISCUSSION
The City asserts the trial court ignored the uncontroverted evidence of improper disclosures set forth in declarations from the Councilmembers themselves and the City Clerk; misinterpreted the Brown Act by concluding its prohibition against sharing confidential information nullified the need for a preliminary injunction enjoining such disclosures; and improperly abdicated its jurisdiction to Judge Magno. Respondents assert, to the contrary, that the trial court correctly denied the preliminary injunction because the City did not meet its burden to establish a likelihood of success on the merits.
I. General Principles and Standard of Review
"As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of its claim." (White v. Davis (2003) 30 Cal.4th 528, 554 (White).) "[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief." (Ibid.)" 'The ultimate goal . . . is to minimize the harm which an erroneous interim decision may cause.'" (Ibid., italics omitted.) The party seeking injunctive relief has the burden to show all elements necessary to support the issuance of a preliminary injunction. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)
"Generally, the ruling on an application for a preliminary injunction rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a showing that it has been abused." (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) However, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) We accept the factual findings of the trial court so long as they are supported by substantial evidence, and independently review the trial court's conclusions based on matters of pure law. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 739.) We also recognize that the trial court abuses its discretions if it applies the wrong legal standard. (Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493.)
II. The Trial Court Did Not Err by Denying the City's Request for a Preliminary Injunction
To establish a likelihood of success on the merits in this case, the City had to show it was likely to obtain injunctive and/or declaratory relief precluding future disclosures of information rendered confidential by the Brown Act and/or subject to the attorney-client privilege. The City relied primarily on the Brown Act to establish both.
The stated purpose of the Brown Act is to ensure that public commissions, boards, and councils deliberate and take actions openly so that the people remain informed and retain control over the instruments they have created. (§ 54950.) To that end, the Brown Act requires that all meetings of a legislative body or local agency be open and public, except as otherwise provided therein, and prohibits a majority of members from discussing, deliberating, or voting on any item of business outside such open meetings. (§§ 54952.2, 54953.) The Brown Act expressly permits closed sessions for certain enumerated purposes, including, as relevant here, "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." (§ 54956.9; see also § 54954.5 [setting forth closed session item descriptions].) At the conclusion of any closed session, the legislative body must reconvene in open session and make certain statutorily specified disclosures regarding any action taken by the legislative body in closed session. (§ 54957.7, subd. (b).)
Section 54963 precludes any person from disclosing "confidential information that has been acquired by being present in a closed session . . . to a person not entitled to receive it," absent authorization from the relevant legislative body. (§ 54963, subd. (a).) Violations "may be addressed by the use of such remedies as are currently available by law, including, but not limited to: [¶] (1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section. [¶] (2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section. [¶] (3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grand jury." (§ 54963, subd. (c).) These actions may not be taken, though, where a person discloses information acquired by being present in the closed session that is not confidential. (§ 54963, subd. (e)(3).)
Here, the City asserted it was entitled to injunctive relief to compel the Councilmembers to comply with their legal duty to maintain the confidentiality of information obtained in closed sessions, or otherwise subject to the attorney-client privilege, and sought a preliminary injunction enjoining them from disclosing confidential information they acquired in closed sessions related to the Platt litigation. The trial court concluded that the City was not entitled to a preliminary injunction because they had not presented evidence sufficient to establish a likelihood of success on the merits of their request for a broad injunction, and that Judge Magno was in a better position to make a tailored ruling regarding the Councilmembers' testimony at trial in the Platt litigation.
The City asserts that it did present such evidence, and the trial court erred by arbitrarily ignoring the uncontradicted declarations it presented in support of its ex parte application. We are not persuaded. The City relies heavily on a declaration from Donesia Gause, who served as the City Clerk since April 12, 2021. Gause stated that the City Council held eight closed sessions related to the Platt litigation between June 25, 2019 and August 3, 2021. She reviewed the minutes and confirmed that Condor was present during all eight closed sessions, and that Adams was present at four of the eight sessions, in June, July, October, and November 2019. Gause then averred, in conclusory fashion, that any knowledge of the Platt litigation that either of the Councilmembers had was acquired exclusively by being present at those meetings. However, Gause was only serving as the City Clerk at the time of the final closed session, on August 3, 2021, and by then, Adams was no longer an elected member of the council. She therefore did not have any firsthand knowledge of the proceedings and, not surprisingly, did not declare that the information the Councilmembers obtained in the closed sessions was confidential.
Notably absent from the City's evidentiary submission was, for example, any declaration by a deputy city attorney stating that the councilmembers had disclosed closed-session communications about the City's trial strategy, weaknesses in the City's position in the litigation, or other privileged communications.
On the other hand, the Councilmembers each submitted their own declarations stating that they did not reveal any attorney-client privileged information or any information received during a closed session related to either the Platt or the Icetown litigation. Moreover, Pacheco explained, in his own declaration, that the City Attorney had previously disclosed information regarding the discussions in the closed sessions to Platt, through his counsel. He attached copies of communications between the City Attorney and Platt's attorneys, and pointed out that the City Attorney had not denied disclosing the information.
The City also relies on the prior declarations the Councilmembers submitted in the Platt and Icetown matters. As the trial court noted in its tentative decision, "It is not clear from the [previous Adams] declaration whether or not confidential information was disclosed because [the City] redacted such information." The City did not redact Condor's declaration in the Icetown litigation, suggesting the information therein is not confidential, and likewise, relies on Gause's conclusory and speculative conclusion that Condor must have obtained the information solely from closed sessions of the City Council.
The trial court was entitled to weigh the various declarations submitted by both parties in determining whether the City established a likelihood of success on the merits. The trial court concluded that the evidence the City presented did not establish a likelihood of success on the merits. Substantial evidence supports the trial court's finding, and we find no abuse of discretion in its associated ruling. (City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41, 54 ["substantial evidence rule applies to preliminary injunctions, as well as the additional rule requiring us . . . to view the facts most favorably to the court's disposition"]; accord, People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 301.)
The City also points to the witness list Platt submitted, but the general descriptions provided therein are not helpful in determining whether the Councilmembers planned to testify as to confidential information they obtained solely through the closed sessions.
The City further asserts that the trial court erred in concluding a preliminary injunction was not necessary because the Councilmembers were already under legal obligation not to disclose confidential information obtained in closed session. The fact that the Brown Act permits the City to seek an injunction, as one potential remedy, does not mean that the City is entitled to receive such an injunction. In deciding whether injunctive relief is appropriate, the trial court must apply the same legal standards as in any other case. And, in ruling on the request for a preliminary injunction, the trial court had to consider the City's likelihood of success on the merits and any harms that were likely to result from the granting or denial of interim injunctive relief. (White, supra, 30 Cal.4th at p. 554.) The trial court did that here, and appropriately considered, as one factor, that the Councilmembers were under legal obligation not to disclose confidential information obtained in a closed session. For the reasons already discussed, we find no abuse of discretion in the trial court's ruling.
Finally, the City asserts that the trial court abused its discretion by abdicating its judicial role to Judge Magno, who had no authority to render a decision on the merits. We acknowledge that abdication of the trial court's discretion is an abuse of that discretion (see, e.g., People v. Hill (1998) 17 Cal.4th 800, 844), but disagree that Judge Keen did so here. Judge Keen made a ruling on the order to show cause for a preliminary injunction-he denied the City's request. In making that ruling, Judge Keen found the City had not established a likelihood of success on the merits warranting injunctive relief, and noted that Judge Magno would be in the best position to make narrowly tailored rulings regarding the testimony at trial in the Platt Litigation.
Notably, the City submitted a motion in limine on that very issue, asking Judge Magno to preclude Platt "from proffering as evidence any privileged communications arising from the City Council's communications with its legal counsels, confidential settlement discussions, and any communications subject to the closed session protections exempted from the [Brown Act]," and even more specifically, from offering testimony from Adams or Condor at trial. While there was necessarily overlap in the subject matter between the ex parte application and the motion in limine, the City itself concedes that Judge Magno still retained the authority-and, indeed, was required-to rule on the motion in limine in the matter pending before him.
The City presents no authority, nor are we aware of any, suggesting that the trial court's mere mention or consideration of other available avenues to protect the allegedly confidential information, absent a broad sweeping injunction, constitutes an abdication of jurisdiction. Rather, the City asserts Judge Magno had no authority to prevent disclosures of confidential information outside the context of the Platt litigation, and specifically the testimony offered in that trial. As an initial matter, the proposed order the City provided to the trial court was limited to the disclosure of information the Councilmembers obtained by being present at closed sessions related to the Platt litigation, such that the preliminary injunction the City actually requested would not preclude any such additional disclosures.
To the extent the City seeks to preclude the Councilmembers from disclosing confidential information obtained in closed sessions outside the context of the Platt litigation, the City does not identify any specific information or threat of disclosure it seeks to protect against. The City asserts the Councilmembers have demonstrated a willingness to violate the Brown Act, generally, but, as Judge Keen concluded, the City did not present evidence sufficient to establish a pattern, or a likelihood the Councilmembers would reveal some other, yet to be identified, confidential information in the future. In the absence of such evidence, we cannot find any abuse of discretion in the trial court's denial of the City's request for a preliminary injunction. (See, e.g., Evans v. Evans (2008) 162 Cal.App.4th 1157, 1168-1169 [preliminary injunction precluding speech without requisite evidence speech is unprotected constitutes an unlawful prior restraint].)
DISPOSITION
The order is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: IRION, Acting P. J., DATO, J.