Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC379877, Judith Chirlin, Judge.
Kane, Ballmer & Berkman, Royce K. Jones, Bruce C. Gridley, Scott C. Van Soye, Gustavo Lamanna for Plaintiff and Respondent.
Bryan J. Thomas for Defendants and Appellants.
BOREN, P.J.
This appeal concerns a political imbroglio in the City of Lynwood. In 2007, the Lynwood electors voted to (1) recall four of the five members of the Lynwood City Council, and (2) elect four successor city council members. The city council members form the membership of the Lynwood Redevelopment Agency (the Agency). One week after the four city council/Agency members were recalled, they approved two agreements regarding a proposed redevelopment project in Lynwood.
The Agency--now with new membership--has brought suit to invalidate its own actions. The trial court acceded to the Agency’s requests. After conducting an independent review, based on undisputed facts, we conclude that: first, the recalled Agency members were still in office when they voted on the two agreements because their successors had not yet “qualified” by taking the oath of office; second, the Agency cannot sue itself for violating the Brown Act; and, third, there is no showing that the agreements are unconscionable for either party to the contracts. Accordingly, we reverse the judgment in favor of the Agency.
FACTS
The Agency Contemplates a Large Redevelopment Project
The membership of the Agency is comprised of the five Lynwood City Council members. Several years ago, the city council/Agency members began negotiations for a 350-acre redevelopment project in Lynwood. Appellants Angeles Field Partners and Solie Gracie hope to serve as developers of the project. The proposal includes a National Football League stadium, hotels, theaters, retail stores, and 1,300 housing units to replace the homes that would be razed to accommodate the project. In October 2006, the Agency entered a one-year Exclusive Negotiation Agreement (ENA) with appellants. However, the developers did not make the $500,000 deposit required by the ENA, and the Agency issued a notice of default.
The Electorate Recalls Four Lynwood City Council Members
While the city council/Agency members were planning the redevelopment project, a move was underway in Lynwood to recall four of the five city council members. Thousands of registered voters signed petitions to recall council members Louis Byrd, Fernando Pedroza, Leticia Vasquez, and Alfreddie Johnson. The Lynwood City Clerk certified that the petitions satisfied legal requirements; however, the city council refused to set a date for the recall election. In fact, the city council adopted a resolution attempting to invalidate the recall petitions. A petition for a writ of mandate was filed to compel the city council to proceed with a recall election, and to issue nomination papers to individuals hoping to succeed recalled council members.
The state Legislature became concerned about Lynwood’s recall election. On July 25, 2007, it enacted urgency legislation (Sen. Bill No. 484) declaring “a need for an experienced, objective, impartial, and professional entity to conduct any recall or special election that is held in the City of Lynwood in the County of Los Angeles during the 2007 and 2008 calendar years.” The Legislature directed that Lynwood’s recall election “shall be administered, for all purposes, by the County of Los Angeles Registrar-Recorder/County Clerk....” The purpose of this bill was “to avoid real bias or the perception of bias or impropriety, and to strengthen the public’s confidence in the fair and free operation of the election process and the reporting of election results.” (Stats. 2007, ch. 126, §§ 1, 2.)
A recall election was held on September 25, 2007, and the four council members lost their seats. At the same time, four new council members were elected to replace the officials who were recalled. The Los Angeles County Registrar-Recorder certified the election results on September 28, 2007. The newly elected council members were sworn in by the Lynwood City Clerk on October 16, 2007.
The Events of October 2, 2007
At its regular meeting on 9:30 a.m. on October 2, 2007, the Los Angeles County Board of Supervisors declared that the county registrar-recorder had certified the results of the recall election, and directed the registrar-recorder to immediately transmit the results to the Lynwood City Council so that it could declare the results and install new officers. Before noon, the Los Angeles County Counsel’s office notified the Lynwood City Council by facsimile and messenger of the official, certified results of the recall election. County counsel directed the Lynwood City Council to “immediately sign and deliver a certificate of election and administer the oath of office to each person elected.”
The Agency had a regular meeting scheduled for 5:00 p.m. on October 2, 2007. The agenda for the regular meeting called for “consideration” of the proposed amendments to the developers’ ENA’s “and after discussion provide staff direction on this item.” In a pre-meeting report, the Agency’s staff recommended that Agency members “defer decision on the ‘Angeles Fields’ development proposal because of the recent outcome of the September 25, 2007 recall election. The incoming new City Council Members and Agency Members may likely change policy direction on the ‘Angeles Fields’ development proposal.” As a result, “it would be a matter of prudence if the present Agency assigns actions to the new Agency Members on significant policy issues and contractual obligations especially on the ‘Angeles Fields’ development proposal....” Similarly, Agency staff requested that Agency members defer approval of the Solie Gracie amended ENA.
The Agency abruptly scheduled a special meeting for October 2, 2007, at 2:30 in the afternoon. The agenda for the special meeting was identical to the agenda for the regular meeting: it indicated that the Agency members would “consider” the amended ENA’s requested by Angeles Fields and Solie Gracie. The staff recommendation was that the Agency would discuss the proposal, “and after discussion provide staff direction on this item.” Instead of merely considering the amended ENA’s, the recalled Agency members voted to approve the ENA’s with the developers.
The Court Proceedings
After the recalled Agency members voted to approve the amended ENA’s with the developers, Lynwood residents sought judicial relief. They obtained a temporary restraining order preventing the recalled Agency members from participating in any action that would commit the city to expend public funds and from implementing or enforcing any resolutions adopted on October 2, 2007. A preliminary injunction later issued enjoining the city and the Agency from implementing, enforcing or giving any legal effect to the ENA’s that were approved by the Agency on October 2.
The Agency brought an action for declaratory relief to determine its rights and obligations stemming from its purported approval of the amended ENA’s at the special meeting on October 2, 2007. The Agency argued that the recalled city council members lacked authority to bind the Agency at the October 2 special meeting; that the October 2 meeting violated the Brown Act; and that the ENA’s are unconscionable. Appellants opposed the declaratory relief action.
A court trial was conducted in June 2008. The parties agreed at the outset that the underlying facts are not in dispute. In its judgment rendered June 20, 2008, the court declared the Agency’s actions in approving the amended ENA’s on October 2, 2007, to be invalid and void ab initio. The court found that the Agency is not bound by the amended ENA’s. Angeles Field Partners and Solie Gracie timely appeal from the judgment.
DISCUSSION
Appeal is taken from the judgment. (Code Civ. Proc., § 904.1, subd. (a)(1).) The underlying facts are not in dispute. The primary issue presented is a legal one relating to the ability of government officials to approve binding contracts after the officials have been recalled by the electors. This requires statutory interpretation, and we interpret statutes as a matter of law, independently from the trial court. (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d 398, 407-408; Community Redevelopment Agency v. Force Electronics (1997) 55 Cal.App.4th 622, 630.) The Agency’s claims of an alleged Brown Act violation and unconscionability also present legal questions, because they are based on undisputed facts.
1. The Recalled Council Members Were Still In Office On October 2, 2007, Because Their Successors Had Not Qualified By Taking The Oath Of Office
“Recall is the power of the electors to remove an elective officer.” (Cal. Const. art. II, § 13.) The electorate has the right “to remove elective officers whenever the people, in their judgment, deem such action necessary.” (Laam v. McLaren (1915) 28 Cal.App. 632, 638.) The Constitution authorizes the Legislature to enact laws providing for the recall of local elected officers. (Cal. Const. art. II, § 19; Board of Education v. Superior Court (1979) 93 Cal.App.3d 578, 585.) The laws governing local recall elections are contained in Elections Code section 11200 et seq.
The Elections Code states that if one-half or more of the votes at a recall election are “No,” “the officer sought to be recalled shall continue in office.” (Elec. Code, § 11383.) “If a majority of the votes on a recall proposal are ‘Yes’, the officer sought to be recalled shall be removed from office upon the qualification of his successor.” (Elec. Code, § 11384, italics added.) If an officer is recalled, “the candidate receiving the highest number of votes for the office shall be declared elected for the unexpired term of the recalled officer.” (Elec. Code, § 11385.)
The primary dispute between the parties concerns the meaning of the words “shall be removed from office upon the qualification of his successor.” (Elec. Code, § 11384.)
We note that the law pertaining to recall elections for state (as opposed to local) officers contains no qualifying language. It reads, “If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor.” (Cal. Const. art. II, § 15, subd. (c).)
The Elections Code does not define what “qualification” is required before a successful candidate may assume the office to which he or she is elected following a municipal recall. However, the state Constitution employs the word in connection with the oath of office. The Constitution states that all public officers and employees in the executive, legislative and judicial branches shall take and subscribe the oath of office “before they enter upon the duties of their respective offices....” (Cal. Const., art. XX, § 3.) After setting forth language of the oath, the Constitution specifies that “no other oath, declaration, or test, shall be required as a qualification for any public office or employment.” (Ibid., italics added. See also Gov. Code, § 1360: taking the oath of office is required “before any officer enters on the duties of his office.”)
The code specifies that “No person shall be considered a legally qualified candidate for any office... unless that person has filed a declaration of candidacy or statement of write-in candidacy with the proper official for the particular election or primary....” (Elec. Code, § 13, subd. (a), italics added.) This section was enacted to assist the Federal Communications Commission. (Id., at subd. (c).) There is no dispute that the persons running in the Lynwood recall election qualified as candidates by filing declarations of candidacy with the proper official.
Thus, “The constitution itself speaks of the prescribed oath as a ‘qualification’ for an office. Equally is the oath required to be taken by the successful candidate a qualification for office, for the very provision of the act is, that, for his refusal or neglect in this regard, or for the making of a false statement, he shall be deprived of his office, and shall forfeit any office to which he may have been elected.” (Bradley v. Clark (1901) 133 Cal. 196, 200-201.) The Supreme Court noted that the term “qualify” “‘means the acts performed after election, as taking the official oath and executing an official bond.... “Eligible” means capable of being chosen, while “qualify” means the performance of the acts which the person chosen is required to perform before he can enter into office.... Abbott, in defining the word “qualify,” says it means to take the oath and give the bond required by law from an administrator, executor, public officer, or the like, before he may enter into the discharge of his duties.’” (Id. at p. 201. Accord: People v. Chessman (1959) 52 Cal.2d 467, 500, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649: a Supreme Court justice who meets the eligibility requirements of five years of practice and who “after election or appointment, qualifies by taking the oath provided by section 3 of article XX [of the Constitution], the Legislature cannot properly require, by way of additional qualification, anything (such as change of residence) which has no reasonable relation to the performance of his duties.”)
Appellants argue that the newly elected Lynwood city council members did not “qualify” for office until October 16, 2007, when they were sworn in by the Lynwood City Clerk at a city council meeting. In appellants’ view, the recalled city council members were not removed from office until October 16, when their successors took the oath of office. As a result, the vote by the recalled city council members on October 2 to approve the ENA’s was valid, because the recalled council members were still in office.
After a municipal election, “[t]he elections official shall immediately sign and deliver to each person elected a certificate of election. He or she shall also administer to each person elected the oath of office prescribed in the California Constitution.” (Elec. Code, § 10265.) The oath of office “may be taken before any officer authorized to administer oaths.” (Gov. Code, § 1362.) In this case, the Los Angeles County Registrar-Recorder/County Clerk was “the elections official,” having been specially designated by the Legislature to administer “for all purposes” the 2007 Lynwood recall election. The county clerk signed and delivered a certificate of election on October 2, 2007, and should at that time have administered the oath of office to the newly elected Lynwood city council members.
Respondent and the trial court believe it redundant or superfluous to administer the oath of office after the election results are certified, because candidates for the Lynwood City Council signed declarations containing an “oath or affirmation of allegiance” in their nomination papers. The oath of allegiance contained in the candidacy declaration is identical to the oath of office. “[T]here shall be set forth in full in the declaration of candidacy required for any primary or final election the oath or affirmation set forth in Section 3 of Article XX of the Constitution.” (Elec. Code, § 200.)
We disagree that the oath of allegiance given in the nomination papers suffices. The oath of office is administered after the election results have been certified. (Elec. Code, § 10265; Bradley v. Clark, supra, 133 Cal. at p. 201; Legerton v. Chambers (1917) 32 Cal.App. 601, 603-604.) Administration of the constitutional oath “only applies to persons who have been appointed or elected to office and are about to assume a discharge of the duties thereof.” (Socialist Party v. Uhl (1909) 155 Cal. 776, 792.) Signing a declaration of candidacy is not equivalent to having the oath of office administered by an “officer authorized to administer oaths.” (Gov. Code, § 1362.)
Contrary to the trial court’s belief, the timing of the swearing in was not “in the hands of those recalled.” The victorious, newly elected officials in the Lynwood recall election could have insisted upon being promptly sworn in by the county clerk, or the Lynwood City Clerk, or a judge, on October 2, 2007, after the election results were officially certified and declared by the County Board of Supervisors. This did not occur. The recalled council members were not removed from office until their successors “qualified,” i.e., took the oath of office. The newly elected individuals did not qualify until October 16, 2008, thereby allowing the recalled officials to approve the ENA’s while they were still in office.
2. Brown Act Violation
In its lawsuit, the Agency asserts that the October 2, 2007, special meeting conducted by the Agency violated the Ralph M. Brown Act. (Gov. Code, § 54950 et seq.) The Brown Act applies to meetings of legislative bodies, which includes “the governing body of a local agency.” (Gov. Code, § 54952, subd. (a).) All meetings of the legislative body of a local agency must be open and public. (Gov. Code, § 54953, subd. (a).) The objective of the Brown Act “is to facilitate public participation in all phases of local government decision making and to curb misuse of democratic process by secret legislation by public bodies.” (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555.)
With respect to special meetings, the Brown Act states, “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.” (Gov. Code, § 54956.) In this case, the trial court found that the notice given for the October 2 special meeting violated the Brown Act: the notice stated that the purpose of the meeting was to “consider” the proposed amendments to the ENA’s, without indicating that the Agency would vote to approve the amended ENA’s.
At the outset, appellants contend that the Agency has no standing to sue itself for violating the Brown Act. If there is an alleged 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... is null and void.” (Gov. Code, § 54960.1, subd. (a).) Appellants raised the standing issue below, but the court rejected it.
What constitutes an “interested person” is addressed in a case from Division Seven of this District, Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242. In Holbrook, two members of the Santa Monica City Council filed a petition for a writ of mandate claiming that Santa Monica City Council meetings violate the Brown Act because they frequently run late into the night and allow public comment as the final order of business, thereby depriving the public of its right to address the council members. (Holbrook, at pp. 1245-1246.) The appellate court found that the plaintiffs lacked standing to sue for a Brown Act violation. It wrote, “[T]he standing conferred by the Brown Act is standing based on citizenship--precisely the kind of standing that a citizen forfeits when he or she becomes a public official.” (Holbrook, at p. 1257.)
The Supreme Court disapproves of administrative agency members suing the very board on which they serve. In Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, plaintiff Carsten was a member of the defendant administrative agency. Carsten brought a writ petition to compel the defendant to comply with the Business and Professions Code. (27 Cal.3d at p. 795.) The Supreme Court wrote that “petitioner is in effect suing herself. She is the moving party in this litigation; the named defendant is the Psychology Examining Committee of the Board of Medical Quality Assurance, of which petitioner is part as a duly appointed member. It is unique to say the least, for one to sue herself and be both plaintiff and defendant in the same litigation. It may be said that she cannot lose the lawsuit, but we doubt that courts should encourage or permit this type of narcissistic litigation.” (Id. at p. 798.)
In light of Holbrook and Carsten, we find that respondent lacks standing to sue itself for its own violation of the Brown Act. Surely, respondent is not claiming that appellants violated the Brown Act: appellants are private parties, did not give notice of the disputed special meeting of October 2, 2007, and did not violate the Brown Act. “[B]asic principles of law dictate that the defendant in any [ ] action [to enforce the Brown Act] must be the entity which has allegedly violated the Act.” (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1289.) Appellants are not the entity that violated the Brown Act. So, what we are left with is respondent Lynwood Redevelopment Agency suing the Lynwood Redevelopment Agency for failing to comply with the Brown Act. This is untenable. The Brown Act gives standing to citizens who have been shut out of the democratic process. It does not give standing to a public agency that calls a meeting, then later sues itself claiming that the meeting it called was illegal.
Apart from its lack of standing, respondent has not shown that it complied with the procedures for claiming a violation of the Brown Act. When an interested party seeks to have a particular action of a legislative body declared null and void, the interested party must--before commencing a judicial action--make a demand of the legislative body within 90 days “to cure or correct the action alleged to have been taken in violation of” the Brown Act. (Gov. Code, § 54960.1, subds. (b) & (c); Ingram v. Flippo, supra, 74 Cal.App.4th at pp. 1287-1288.) The trial court deemed it “an absurdity” to require the Agency to make a demand that it cure its own violation of the Brown Act. The absurdity recognized by the trial court underscores “that the rights at which the Brown Act is directed are the core rights of citizens.” (Holbrook v. City of Santa Monica, supra, 144 Cal.App.4th at p. 1256.) Apparently, not one citizen of Lynwood made a timely demand that the Agency cure or correct the actions it took on October 2, pursuant to Government Code section 54960.1. Without a citizen (as opposed to the Agency itself) seeking vindication of the public’s right to know what legislators are doing, the procedures for claiming a Brown Act violation have not been satisfied.
3. Unconscionability
The trial court found that enforcement of the ENA’s “would be unconscionable and in violation of the will of the voters.” Specifically, “the Court finds that the voters here had no bargaining power, because their ‘representatives’ ignored their will, as expressed in the recall election the week before. In view of the conflict between the will of the electorate and the actions of the Recalled Council members, the Court finds that enforcement of the ENAs would be unconscionable.”
We start with the rule that “[c]ontract law exists to enforce legally binding agreements between parties; tort law is designed to vindicate social policy.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514; Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 60.) “‘The purpose of the law of contracts is to protect the reasonable expectations of the parties.’” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268, italics added.) The existence of a contractual legal duty is determined by the terms of the parties’ contract, and “does not entail balancing policy considerations, as is done under tort law.” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395, fn. 5.)
The doctrine of unconscionability is a term used in contract law: “a contract or provision, even if consistent with the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or ‘unconscionable.’” (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 820.) Unconscionability has a “procedural” and a “substantive” element: “‘The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “‘which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’”... [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’” (Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 160.)
The voters of Lynwood are not the subscribing parties to the contracts at issue here. Rather, the parties are respondent Agency and appellant private developers. Respondent has not directed our attention to any statute or case authorizing application of the doctrine of unconscionability for the benefit of nonparties to the contract, for example, “voters.” We are not sure who the party with superior bargaining strength is in this case. Almost surely the Agency, not appellants, held all the cards. Yet the Agency, despite being the party with the power to accept or reject appellants’ development proposal, is the party that is asserting unconscionability. In short, it appears that respondent and the trial court were using a contract doctrine to vindicate social policy (i.e., to protect the will of the voters), as if signing the ENA’s was a tort.
CONCLUSION
As appellants acknowledge in their brief, “If voters take the extraordinary step of replacing elected officials in the middle of their terms for violating the public trust while in office, those officials should not be free to misuse the powers of their offices for days, and perhaps weeks, after voters cast their ballots.” (Citing Sen. Rules Com. Floor Analysis of Assem. Bill No. 2753 (2005-2006 Reg. Sess.) June 26, 2006, pp. 2-3.) The recalled members of the Agency did not have that salutary notion in mind when they voted to approve the ENA’s after they were recalled from office. Like the trial court, we question the recalled Agency members’ eagerness to thwart the will of the voters of Lynwood. Unlike the trial court, we do not see the recalled Agency members’ actions as being illegal.
DISPOSITION
The judgment is reversed. Appellants may recover their costs on appeal from respondent.
We concur: ASHMANN-GERST, J., CHAVEZ, J