Opinion
F082320
12-09-2022
STEPHANIE PADILLA et al., Plaintiffs and Appellants, v. CITY OF MCFARLAND et al., Defendants and Respondents
Munger, Tolles &Olson LLP, Jacob S. Kreilkamp, John L. Schwab and Xiaonan April Hu; ACLU Foundation of Southern California, Peter J. Eliasberg, Julia A. Gomez and Jordan Wells; Paul Nicholas Boylan, for Plaintiffs and Appellants. Reed Smith LLP, Raymond A. Cardozo, David J. de Jesus and Ben R. Fliegel; LeBeau Thelen LLP and Andrew K. Sheffield; Nathan M. Hodges, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. BCV-20-101980 David R. Lampe, Judge.
Munger, Tolles &Olson LLP, Jacob S. Kreilkamp, John L. Schwab and Xiaonan April Hu; ACLU Foundation of Southern California, Peter J. Eliasberg, Julia A. Gomez and Jordan Wells; Paul Nicholas Boylan, for Plaintiffs and Appellants.
Reed Smith LLP, Raymond A. Cardozo, David J. de Jesus and Ben R. Fliegel; LeBeau Thelen LLP and Andrew K. Sheffield; Nathan M. Hodges, for Defendants and Respondents.
OPINION
DE SANTOS, J.
On April 23, 2020, one month after Governor Gavin Newsom declared a state of emergency due to the COVID-19 pandemic, the McFarland City Council held a meeting to discuss and vote on an application to modify a private corporation's conditional use permits to allow the opening of two immigration detention facilities in the City of McFarland. The meeting was held virtually due to the pandemic and the videoconferencing platform the city council used limited access to 100 people.
Stephanie Padilla (Padilla), Jane Doe (Doe), and Jane Roe (Roe) attempted to access the meeting using the videoconferencing platform, but due to the limitation on participants, two of them could not and the other was only able to access the meeting after many attempts. After the city council voted to approve the modifications, Padilla, Doe, and Roe (collectively, plaintiffs) sued the City of McFarland and the McFarland City Council (collectively, the City) to invalidate the vote, alleging, among other things, that it was taken in violation of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.; hereafter, the Brown Act) and the California Constitution because public participation was limited to 100 people.
Undesignated statutory references are to the Government Code.
Plaintiffs moved for a preliminary injunction to enjoin the City from giving effect to or relying on the modified conditional use permits except to accommodate the need to detain individuals currently housed in the facilities until they can be released. The trial court denied the motion, finding injunctive relief was procedurally improper because the vote was a completed act that had no threat of recurring and, in any event, plaintiffs had not demonstrated a likelihood of success on the merits or that the balance of harms weighed in their favor.
Plaintiffs appeal, arguing the trial court abused its discretion in denying injunctive relief. While we agree with plaintiffs that the completed act doctrine does not apply, we conclude the trial court did not abuse its discretion in denying the preliminary injunction because plaintiffs failed to meet their burden of proving the elements necessary to grant injunctive relief. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The GEO Group, Inc. (GEO), is a private prison company which owns and operates two correctional facilities in McFarland that before 2020 housed state prison inmates. In December 2019, GEO contracted with United States Immigration and Customs Enforcement to operate immigration detention facilities at the two prisons. Since GEO's conditional use permits did not allow GEO to house federal male and female detainees, GEO needed to obtain modifications to its conditional use permits.
In January 2020, GEO asked the McFarland Planning Commission (the commission) to modify GEO's conditional use permits so it could begin housing federal inmates and detainees. The commission held public meetings on January 21 and February 18 to consider the modifications. Both hearings were open to the public and covered in the local news media. Approximately 150 to 200 people attended the January 21 meeting, while approximately 300 people attended the February 18 meeting. Most of the attendees, including plaintiffs Doe and Roe, opposed GEO's request to modify its permits. Because the number of attendees exceeded the city council chambers' physical capacity, City staff set up speakers outside the building to ensure all attendees could listen to the proceedings. The commission also permitted all those seeking to offer public comment to enter city council chambers and address the commission.
Further references to dates are to dates in the year 2020, unless otherwise stated.
Plaintiffs state in their declarations that the first public commission meeting occurred on January 28, but the City's agenda, the resolutions the City ultimately adopted, the declarations of the City's witnesses, and plaintiffs' petition for writ of mandate all state the first meeting occurred on January 21.
The commission split on whether to approve GEO's modification requests, with two members voting in favor and two against. Because the vote was a tie, the modifications were not approved. GEO appealed the commission's decision to the city council on February 26.
On March 4, in response to the threat of COVID-19, the Governor declared a state of emergency in California. On March 12, the Governor issued an executive order suspending and waiving the Brown Act provisions requiring in-person meeting attendance, which was superseded five days later by Executive Order N-29-20 (Executive Order 29). In Executive Order 29, the Governor expressly found "strict compliance with various statutes and regulations specified in this order," which included the Brown Act, "would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19 pandemic."
Executive Order 29 waived all requirements of the Brown Act "expressly or impliedly requiring the physical presence of members, the clerk or other personnel of the body, or of the public as a condition of participation in or quorum for a public meeting."Specifically, the order provided that a local legislative body holding a meeting via teleconferencing satisfies "any requirement that the body allow members of the public to attend the meeting and offer public comment" if it "allows members of the public to observe and address the meeting telephonically or otherwise electronically, consistent with the notice and accessibility requirements set forth" in the order. The legislative body was not required to "make available any physical location from which members of the public may observe the meeting and offer public comment." As applicable here, the order urged public agencies "to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible" to the Brown Act's provisions "regulating the conduct of public meetings, in order to maximize transparency and provide the public access to their meetings."
Former section 54953 that was in effect at the time allowed the legislative body of a local agency to use teleconferencing in connection with any meeting or proceeding authorized by law, but it required teleconferencing locations accessible to the public and that at least a quorum of the legislative body's members participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction. (Former § 54953, subd. (b)(1) & (3).)
Executive Order 29's notice and accessibility provisions required the legislative body to: (1) provide advance notice of the time and agenda for the meeting; (2) provide notice of how the public may observe the meeting and offer comments; (3) implement procedures for receiving and resolving accommodation requests under the Americans with Disabilities Act; and (4) advertise those procedures as part of the meeting notice.
As set forth in Executive Order N-08-21, Executive Order 29 was set to expire on September 30, 2021. Effective September 16, 2021, section 54953 was amended to authorize a local agency to use teleconferencing without complying with the Brown Act's teleconferencing requirements during a declared state of emergency. (Stats. 2021, ch. 165 (A.B. 361), § 3, eff. Sept. 16, 2021.)
A little over a month later, on April 23, the city council conducted the hearing on GEO's appeal of the commission's decision on its request to modify the conditional use permits via Zoom videoconference and teleconference. The city council provided the public with a Zoom link and six different phone numbers to join the meeting. Pursuant to the City's normal protocols, members of the public who intended to speak had to submit comment cards beforehand so the City could regulate the time and manner of public comment. The City received 848 written public comments, which were distributed to all council members before the meeting.
The Zoom platform permitted up to 100 attendees, which was twice the number of persons who could be accommodated if the hearing were held in person. Zoom, however, was capable of hosting virtual meetings of up to 1,000 participants through the purchase of a large meeting license, and another videoconference platform could host up to 10,000 participants at the same time.
At the beginning of the hearing, members of the public asked the city council to postpone the hearing until everyone could gather safely and because community members were unable to participate. Mayor Sally Gonzalez asked the city attorney if the meeting needed to be cancelled because community members could not join the hearing, but the city attorney advised the meeting did not have to be postponed. The mayor stated that while she recognized the teleconference/virtual meeting was limited to 100 participants, this allowed for more participants than could be accommodated if the meeting were held in the council chambers.
Public comment was allowed at the meeting. The City provided Spanish language interpreters and those who needed an interpreter were given twice the amount of time normally provided to speak. Members of the public voiced both support and opposition to GEO's applications. After discussion and public comments, the city council unanimously reversed the commission and approved the modifications to GEO's conditional use permits.
Due to the cap on participants, neither Padilla nor Roe ultimately were able to attend the April 23 meeting. Padilla attempted to join the meeting using the videoconferencing details provided, but the platform displayed the following message: "This meeting has reached a maximum of 100 participants. Please try again later." When she tried to join using the telephone conference line, an automated message informed her: "This meeting is full. Goodbye." Roe also tried to join the videoconference, but she either was kicked off the meeting or received the notice denying her entry because the meeting had reached a maximum capacity of 100 participants.
Doe initially encountered the same difficulties as Padilla and Roe when she attempted to connect to the videoconference of the meeting on her phone. Eventually, she was able to observe a portion of the meeting after a community member who successfully connected to the meeting through Zoom invited her to share the member's device. At some point, Doe was able to connect to the meeting using her own phone and provide comment opposing the permit modifications.
The Federal Action
On June 30, two nonprofit organizations that provide services to immigrant detainees filed suit in Kern County Superior Court against the City, the commission, and GEO alleging they violated Civil Code section 1670.9, subdivision (d) in part by impermissibly restricting public participation at the public meetings. GEO subsequently removed the case to federal court. On August 11, the district court issued a preliminary injunction enjoining the City from executing modifications to the conditional use permits, and barring GEO from accepting or transferring immigration detainees to the detention facilities, which GEO appealed.
Civil Code section 1670.9, subdivision (d) provides, in relevant part: "A city ... shall not, on and after January 1, 2018, ... issue a permit for the building or reuse of existing buildings by any private corporation, contractor, or vendor to house or detain noncitizens for purposes of civil immigration proceedings unless the city . has done both of the following: [¶] (1) Provided notice to the public of the proposed conveyance or permitting action at least 180 days before the execution of the conveyance or permit. [¶] (2) Solicited and heard public comments on the proposed conveyance or permit action in at least two separate meetings open to the public."
On September 1, the Ninth Circuit Court of Appeals stayed the injunctive order and expedited the appeal. On October 26, the Ninth Circuit, which heard oral argument on October 9, vacated the preliminary injunction, concluding the district court abused its discretion in finding: (1) the organizations raised serious questions as to whether the City violated Civil Code section 1670.9, subdivision (d), and (2) a likelihood of irreparable harm. The Ninth Circuit found, among other things, that the City complied with the statute's requirement that it solicit and hear public comments before approving the proposed modifications, as: (1) it held a public meeting on April 23, which was held virtually due to the COVID-19 pandemic but was open to the City's residents to attend and participate; (2) any technical limitations and difficulties participants experienced were not prejudicial; and (3) "any barriers to participation were minimal and consistent with the state's guidance for conducting public hearings" during the pandemic, such as those set forth in Executive Order 29.
This Lawsuit
Meanwhile, plaintiffs' attorneys delivered a letter to the City on July 8 demanding that it "cease and desist/cure or correct" its actions during the April 9 and April 23 city council meetings due to violations of the Brown Act. As applicable here, the attorneys asserted the City violated the Brown Act by limiting attendance at the April 23 city council meeting to 100 people, even though Zoom allows for as many as 1,000 participants. The attorneys demanded the City cure or correct the violation and, if not, they would seek an order voiding the actions taken at the April 23 meeting. The City did not substantively respond to this demand and did not cure or correct the alleged Brown Act violation.
On August 24, plaintiffs filed a verified petition for writ of mandate and complaint against the City, which alleges causes of action for declaratory relief, injunctive relief, violations of the Brown Act, and violations of the California Constitution, article 1, section 3, subdivision (b)(1) and (2). Plaintiffs seek, among other things, a declaration from the court that the City's actions taken during the April 23 meeting are null and void and they ask the court to order the City to abstain from giving effect to GEO's conditional use permits.
After learning the City intended to allow GEO to begin operating pursuant to the conditional use permits as soon as September 7, plaintiffs filed an ex parte application for a temporary restraining order on September 4 seeking to enjoin the City from effectuating the permits until the court could determine whether a preliminary injunction should issue. After hearing oral argument, the trial court denied the application on September 8.
On October 15, plaintiffs moved for a preliminary injunction to enjoin the City from relying on the modified conditional use permits, "except to accommodate the need if any, to detain individuals currently in the [detention facility] until they can be released." Plaintiffs argued they were likely to succeed in showing the City violated the Brown Act during its April 23 meeting by preventing them and others from attending and participating in the meeting, which renders the decisions made at the meeting null and void. Plaintiffs asserted they would be irreparably harmed without the preliminary injunction because (1) the permits were issued in violation of their constitutional and statutory rights to public access and participation, which harm would continue as long as the City continued to effectuate the permits, and (2) housing the detainees in enclosed carceral settings would contribute to the risk of community spread of COVID-19.
In support of their request for injunctive relief, plaintiffs submitted their own declarations describing their attempts to virtually access the April 23 meeting. They also submitted a declaration from a community member describing his experience accessing the meeting over Zoom. Finally, they submitted a declaration from an epidemiologist, who opined the transfer of detainees to and from the detention facilities would result in immediate and irreparable harm to public health, including corrections officers and the surrounding community, due to the ongoing COVID-19 pandemic. Plaintiffs notified the court that two detainees already had tested positive for COVID-19 at one of the facilities.
In opposition to plaintiffs' motion, the City argued provisional relief was unavailable because the proposed injunction would not preserve the status quo, as (1) the City had approved the permits and detainees had been transferred to the facilities, and (2) plaintiffs wanted the court to undo the City's legislative actions before a full adjudication on the merits. In support, the City proffered evidence no further hearings on the conditional use permits were scheduled, detainee transfers had started, and the City began receiving revenue pursuant to the approvals of the permits.
The City further argued plaintiffs did not satisfy the requirements for a preliminary injunction. The City asserted there was not a likelihood that plaintiffs would prevail on the merits because the 100-person cap at the April 23 meeting was a reasonable effort to comply with the Brown Act and plaintiffs were not prejudiced because they could have provided written comments and their positions were adequately represented.
The City contended both it and the public would suffer irreparable harm if a preliminary injunction issued, as the City stood to lose budget revenue, jobs, scholarship funds, and infrastructure improvements if the approvals were voided. The City presented evidence that its financial position, as set out in the City's annual operating budget for fiscal year 2019-2020, was subject to unacceptable levels of risk because the cash balances in its operating funds were dangerously low, which may make it difficult to pay normal operating expenses and place the City at risk should unexpected events occur. The City asserted that in addition to the employment opportunities the detention facilities would provide, the modified conditional use permits would provide significant financial benefits to the City, as under the permits GEO is required to pay the City the following in connection with each facility: (1) $255,500 in annual payments; (2) $50,000 annually to supplement the police department's budget for public safety; (3) annual $1,000 scholarships to half of the graduating class of two high schools; and (4) infrastructure improvements at no cost to the City. These financial benefits would be lost if the injunction were to issue, resulting in a net loss to the City of approximately 20 percent of the City's annual operating budget.
At the conclusion of a November 6 hearing on the motion for preliminary injunction, the trial court denied the motion. The trial court found injunctive relief was "procedurally improper at this time" because plaintiffs were seeking an order undoing past conduct, namely, the issuance of the conditional use permits, which was a completed act that had no threat of recurring. Alternatively, the trial court found plaintiffs failed to meet their burden of proving a reasonable probability of success on the merits, as the City demonstrated it opened the meeting to the public and permitted public comment, and the balance of harms weighed in favor of denying the injunction. The court filed its written order denying the preliminary injunction on November 25.
In addition to appealing the order denying the preliminary injunction in this case, plaintiffs filed a petition for writ of mandate in this court in case No. F082087 on December 4, seeking a writ compelling the trial court to vacate its order denying their request for preliminary injunctive relief and issue an order granting such relief. On April 14, 2021, we summarily denied the writ petition in case No. F082087.
DISCUSSION
The Brown Act and the Standard of Review
Plaintiffs commenced this action seeking to declare the City's vote approving the modifications to GEO's conditional use permits null and void because the City violated the Brown Act by limiting attendance at the April 23 meeting to 100 participants. Pending a trial on plaintiffs' petition for writ of mandate, plaintiffs sought a preliminary injunction enjoining the City from effectuating the modified conditional use permits except to accommodate the need to detain individuals currently housed at GEO's facilities until they could be released, which the trial court denied.
" 'The Brown Act requires that most meetings of a local agency's legislative body be open to the public for attendance by all.' [Citation.] Its objectives include facilitating public participation in local government decisions and curbing misuse of the democratic process by secret legislation." (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1075 (Galbiso).) In enacting the Brown Act, the Legislature found and declared "that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly." (§ 54950.)
To implement the Legislature's intent, "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." (§ 54953, subd. (a).) "Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body ..." (§ 54954.3, subd. (a).) "Although a legislative body may reasonably regulate and limit the amount of time allocated to each speaker, it must ensure that the right of public comment is carried out (§ 54954.3, subd. (b)) and may not prohibit public criticism of the policies or actions of the legislative body (§ 54954.3, subd. (c))." (Galbiso, supra, 167 Cal.App.4th at p. 1076.)
Section 54960.1 permits interested persons to commence an action by mandamus or injunction to declare a local entity decision reached in violation of the Brown Act "null and void." (§ 54960.1, subd. (a).) "To prevail, the plaintiff must show: (1) the local legislative body violated one or more ... Brown Act provisions; (2) the legislative body took action in connection with the violation; (3) a timely demand for the legislative body to cure or correct the improper action; (4) the legislative body did not cure or correct the action; and (5) prejudice from the ... Brown Act violation." (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 601.)
A challenged action shall not be determined to be null and void if the legislative body has substantially complied with the specified statutory provision. (§ 54960.1, subd. (d)(1).) Further, "a violation of the Brown Act will not automatically invalidate an action taken by a local agency or legislative body. The facts must show, in addition, that there was prejudice caused by the alleged violation." (Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 670; Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360, 371-373; Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556.)
The general purpose of a preliminary injunction is to preserve the status quo pending a determination of the merits of the action. (White v. Davis (2003) 30 Cal.4th 528, 554; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) Trial courts must evaluate two interrelated factors when deciding whether to issue a preliminary injunction: (1) the likelihood that the moving party will ultimately prevail on the merits at trial; and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction. (White v. Davis, at p. 554; Butt v. State of California (1992) 4 Cal.4th 668, 677-678.) "The trial court's determination must be guided by a 'mix' of the potentialmerit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction." (Butt v. State of California, at p. 678.)
It is plaintiffs' burden to show all necessary elements. (O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) "The moving party must prevail on both factors to obtain an injunction. Thus, where the trial court denies an injunction, its ruling should be affirmed if it correctly found the moving party failed to satisfy either of the factors." (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145 (Sahlolbei).)
It is well-settled that the denial of a preliminary injunction is reviewed for an abuse of discretion. (Butt v. State of California, supra, 4 Cal.4th at p. 678; Pittsburg Unified School Dist. v. S.J. Amoroso Construction Co., Inc. (2014) 232 Cal.App.4th 808, 814.) "Where the evidence before the trial court was in conflict, its factual determinations, whether express or implied, are reviewed for substantial evidence. We interpret the facts in the light most favorable to the prevailing party." (Sahlolbei, supra, 112 Cal.App.4th at p. 1145.)" 'An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence.'" (Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443.) "[T]o the extent that the determination on the likelihood of a party's success rests on an issue of pure law not presenting factual issues to be resolved at trial, we review the determination de novo." (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1403.)
With these principles in mind, we consider the grounds on which the trial court denied the preliminary injunction.
Injunction Against Completed Act
The trial court first denied a preliminary injunction on the ground the City's approval of the modified conditional use permits was a completed act that had no threat of recurring. The City contends the ruling was proper because: (1) an injunction will not issue to restrain a completed act, and here the vote to approve the modifications has been completed; and (2) there are no future actions to enjoin as the vote will not recur.
Since the "purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act," injunctive relief is available "only to prevent threatened injury and has no application to wrongs that have been completed." (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) It does not serve to punish past acts and should not be exercised unless there is "evidence establishing the reasonable probability the acts will be repeated in the future." (Ibid.) A preliminary injunction will not issue where there is "no evidence that any of the alleged illegal activities were likely to recur." (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 431.)
For example, as explained in McManus v. KPAL Broadcasting Corp. (1960) 182 Cal.App.2d 558, the case the City relies on, an injunction that seeks to restrain the defendant from constructing a radio transmitting tower will not issue where the tower has already been constructed, since an injunction is inapplicable "to completed wrongs for the redress of which the plaintiff is relegated to an action at law," as "a completed wrong cannot be corrected by a preliminary injunction, the purpose of which is to preserve the status quo until after final judgment." (Id. at pp. 563-564.)
In contrast, "injunctive relief has been upheld where the defendant's completed act causes ongoing harm or is part of a continuing course of conduct." (Sahlolbei, supra, 112 Cal.App.4th at p. 1156.) In Sahlolbei, where a plaintiff physician who was denied reappointment to a hospital staff sought an injunction requiring reinstatement of his staff privileges, the appellate court found the trial court was not justified in denying injunctive relief based on the completed act principle. (Id. at pp. 1144-1145, 1156-1157.) The appellate court explained there are two categories of cases: (1) those where "the harm the injunction was sought to prevent had already occurred[,]" therefore, "[i]t could not be undone, and, since there was no indication the conduct causing the harm would recur, there was nothing left to prevent"; and (2) those where "the harm was a continuing interference with the plaintiff's rights, which could be prevented by granting an injunction." (Id. at p. 1157.) The appellate court found the case before it fell in the second category, explaining: "The harm [the] plaintiff sought to prevent-his exclusion from the staff without a prior hearing-continued as long as his staff privileges remained terminated. The continuation of the harm could be prevented by reinstating his privileges and ordering a hearing as a prerequisite to any subsequent termination." (Ibid.)
We agree with plaintiffs that this instant case falls within the second category. The alleged harm plaintiffs sought to prevent, namely, the City continuing to give effect to the modified conditional use permits which the city council approved without providing plaintiffs access to the April 23 meeting and vote, continues as long as the permits remain in effect. The continuation of the harm could be prevented by ceasing to give effect to the permits. The trial court therefore was not justified in denying injunctive relief on the completed act principle.
The City also asserts the proposed preliminary injunction is procedurally improper because it would change the status quo by undoing the City's legislative acts before a full adjudication on the merits. When a complaint seeks both a preliminary and a permanent injunction, a court may not issue a permanent injunction when ruling on an application for a preliminary injunction since an order for a preliminary injunction does not decide the merits of the plaintiff's underlying causes of action. (Yee v. American National Ins. Co. (2015) 235 Cal.App.4th 453, 457-458.) Thus, it is generally an abuse of discretion for a court to issue a preliminary injunction that effectively decides the merits of the plaintiff's claims and provides the ultimate relief the plaintiff seeks. (Id. at p. 458.) "Were the law otherwise, it would provide a handy guide for how to succeed in a lawsuit without really trying-i.e., how to obtain permanent relief preliminarily." (Ibid.)
Here, the preliminary injunction would not provide the ultimate relief plaintiffs seek. Plaintiffs' petition for writ of mandate seeks to reverse the modification of the conditional use permits by having the city council's vote declared null and void, but their motion for a preliminary injunction seeks to stop the ongoing harm of allowing GEO to use its facilities to house federal immigration detainees by enjoining the City from effectuating the permits except to accommodate the need to detain individuals currently housed at GEO's facilities until they can be released.
While the City believes the status quo is the circumstances that existed at the time of the hearing on the motion, i.e., immigration detainees being housed in GEO's facilities as allowed by the modified conditional use permits, the status quo is defined as" '" 'the last actual peaceable, uncontested status which preceded the pending controversy.'" '" (14859 Moorpark Homeowner's Assn. v. VRT Corp., supra, 63 Cal.App.4th at p. 1408.) Under that standard, the status quo was the state of affairs before the City voted to modify GEO's conditional use permits to authorize the transfer of federal immigration detainees into GEO's facilities. Plaintiffs' request therefore restores the status quo.
For the reasons stated, the trial court abused its discretion when it found injunctive relief was procedurally improper; therefore, it erred to the extent it denied injunctive relief on that ground.
Likelihood of Prevailing on the Merits
The trial court alternatively found plaintiffs failed to meet their burden of proving a reasonable probability of success on the merits as the City demonstrated it opened the meeting to the public and permitted public comment.
To show a likelihood of prevailing on the merits, plaintiffs had to establish they were likely to prevail on their claim the City violated the Brown Act when it limited attendance on the Zoom platform to 100 participants. As plaintiffs point out, the California Constitution mandates that "each local agency" comply with the Brown Act "to ensure public access to the meetings of public bodies" (Cal. Const., art. I, § 3, subd. (b)(7)), and the Brown Act provides that "[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency." (§ 54953, subd. (a).) Plaintiffs assert "[t]he law could not be clearer: local legislative bodies must open their meetings to all persons." Plaintiffs contend because the April 23 meeting was not open for attendance by all, as the Zoom platform limited attendance to 100 participants, the City violated the Brown Act.
The City responds that Executive Order 29 loosened the strictures of the Brown Act to grant local agencies "flexibility and discretion ... to decide what procedures will substantially comply with the Act in light of the pandemic circumstances"; therefore, the proper test for review of a local body's actions is not whether there is perfect compliance with the Brown Act, but rather whether those compliance efforts were an abuse of discretion. The City notes Executive Order 29 specifies that a local legislative body satisfies "any requirement that the body allow members of the public to attend the meeting and offer public comment" if it "holds a meeting via teleconferencing and allows members of the public to observe and address the meeting telephonically or otherwise electronically." Moreover, the order urges local bodies "to use sound discretion and to make reasonable efforts to adhere as closely as reasonably possible" to the Brown Act.
The City asserts that is what happened here, as the Zoom platform it used allowed for twice the capacity of the space in which city council meetings usually were held, and the City provided the public with access to the meeting via telephone, as well as the opportunity to comment at the meeting and submit written comments beforehand. The City contends it did not "abuse ... its discretion in determining what 'reasonable efforts' were warranted under Executive Order 29 particularly during the early stages of the pandemic when uncertainty was the norm." The City asserts that under the circumstances, where the city council meeting was held only a month after the Governor declared a state of emergency and suspended the Brown Act requirement for in-person attendance at meetings due to the COVID-19 pandemic, it "faced a rapidly evolving situation" that required balancing the public's right to access against keeping everyone safe from the virus, and it achieved those goals by conducting a hearing the public could access by video and telephone, and allowing the public to provide comments before and during the hearing.
As we have stated, the Brown Act provides that an act taken in violation of section 54953 shall not be determined to be null and void if the action was taken in substantial compliance with that section. (§ 54960.1, subd. (d)(1).) "In determining whether a [legislative] body has substantially complied with statutory requirements, '[t]he paramount consideration is the objective of the statute.' ...' "Substantial compliance . means actual compliance in respect to the substance essential to every reasonable objective of the statute." '" (North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1431-1432.)
The "reasonable objectives" of the Brown Act are to ensure public agencies' "actions be taken openly and that their deliberations be conducted openly." (§ 54950.) While section 54953, subdivision (a) requires that all meetings of the legislative body "shall be open and public" and "all persons shall be permitted to attend" them, actions taken in violation of those requirements should not be nullified if the City's "reasonably effective efforts" to provide public access to the April 23 meeting served the statutory objective of ensuring actions taken and deliberations made at such meetings are open to the public. (North Pacifica LLC v. California Coastal Com., supra, 166 Cal.App.4th at p. 1432.)
The trial court reasonably could find the City substantially complied with the Brown Act's public access requirement. Given the pandemic, legislative bodies such as the City had to quickly adjust to the use of technology to provide the public with access to their meetings. While Executive Order 29 did not explicitly state all Brown Act requirements were relaxed, the Governor presumably recognized the challenge the use of technology presented when he urged local bodies "to use sound discretion" and "make reasonable efforts to adhere as closely as reasonably possible" to the Brown Act to "maximize transparency and provide the public access to their meetings."
Although the City does not explain why it chose the Zoom platform with a limit of 100 participants, there is no evidence the City knew Zoom could accommodate more people, yet nevertheless decided to limit attendance despite knowing of the intense community interest in the proposed modifications to GEO's conditional use permits. Thus, the limitation does not appear to be arbitrary, as plaintiffs argue. Rather, the City's actions demonstrate it made a good faith effort to encourage public participation by receiving written comments before the hearing, which were distributed to the council members, providing video and telephonic access to the meeting, and allowing public comment at the meeting. Nothing about the City's efforts suggests it was attempting to thwart the objectives of the Brown Act by holding a meeting that was not open to the public. Although in hindsight the City could have done more to provide greater public access to the meeting, the City acted in a manner that is consistent with the open meeting objectives of the Brown Act and thereby substantially complied with the Brown Act.
Even if the City's efforts to open the April 23 meeting to the public did not substantially comply with the Brown Act, plaintiffs did not suffer any prejudice. (Fowler v. City of Lafayette, supra, 46 Cal.App.5th at p. 371 [court "do[es] not set aside an agency's action unless the appellants show the violation caused prejudice"].) The City was aware of the community's sentiments concerning the proposed modifications to GEO's conditional use permits, as it received over 800 written comments on the matter before the hearing which were given to each council member, and received public comments during the hearing, including a comment by plaintiff Doe. While Padilla and Roe were not able to connect to the meeting, their views were adequately represented through the written and oral comments the City did receive.
For these reasons, the trial court did not abuse its discretion in finding plaintiffs failed to meet their burden of proving a reasonable probability of success on the merits, and therefore did not err in denying the preliminary injunction.
Interim Harm
The trial court also found the balance of the harms weighed against granting the preliminary injunction. "[I]n determining whether to issue an injunction, a court must weigh and balance both the likelihood the moving party will succeed in the litigation on the merits of its claim, and also the relative interim harm to the parties if the injunction is granted, or not granted." (O'Connell v. Superior Court, supra, 141 Cal.App.4th at p. 1467.) The trial court was required to assess the consequences to each of the parties of granting or denying interim relief, keeping in mind that the goal is "to minimize the harm which an erroneous interim decision may cause." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73.)
In the trial court, plaintiffs argued the denial of their constitutional and statutory rights to participate in the City's decision-making process by being "deprived of the right to participate and oppose the expansion of immigration detention into McFarland" established irreparable harm absent a preliminary injunction. Plaintiffs further argued they and their family members were likely to suffer irreparable harm because of the high potential for community spread of COVID-19 from the detention facilities; they submitted a declaration from an epidemiologist explaining that detention centers increase the risk of an outbreak and cited judicial opinions faulting GEO for mismanaging the COVID-19 crisis in other facilities. Plaintiffs asserted the balance of the equities and public interest weighed in their favor because: (1) it is in the public's interest to prevent the violation of a party's constitutional rights; and (2) any economic harms to the City were outweighed by the health risks to McFarland residents from community spread of COVID-19 and the detention of immigrants in "badly GEO-run facilities."
The City responded by submitting a number of declarations and documents to support its contention that granting injunctive relief that interferes with the conditional use permits would: (1) threaten the continued delivery of essential public services by depriving the City of revenue GEO agreed to pay the City under the modified conditional use permits; (2) deprive the City of jobs the detention facilities provide; and (3) cause high school seniors to lose out on about $200,000 a year in college scholarship money. The City asserted that if the injunction issued it would lose 20 percent of its annual budget, which could not be recouped, explaining that McFarland's residents and families rely on the City to provide essential services and on the federal government and GEO to provide jobs and revenue. As for the threat of community spread of COVID-19, the City argued the conditional use permits would foster public safety by allowing GEO to receive and house detainees in an appropriately distanced setting to help prevent the spread of COVID-19.
On appeal, plaintiffs challenge the trial court's decision to resolve the balance of interim harm issue in the City's favor. They argue that if preliminary injunctive relief is not granted, they will suffer the same two harms they asserted below: (1) the ongoing violation of their constitutional and statutory rights to access and participate in the City's decision-making process; and (2) the heightened risk of COVID-19 transmission to the broader community. Plaintiffs claim these are irreparable harms which are entitled to great weight because they are incapable of being remedied through monetary damages. Plaintiffs assert "[t]he City failed to identify any meaningful countervailing irreparable harm," as the City's loss of revenue it was due to receive under the conditional use permits would only be temporary should the City ultimately prevail at trial.
We find no abuse of discretion. As the City asserts, irreparable harm may arise where "[a] loss of funding is likely to have an immediate impact on [the state's] ability to provide critical resources to the public, causing damage that would persist regardless of whether funding [was] subsequently reinstated." (United States v. North Carolina (M.D. N.C. 2016) 192 F.Supp.3d 620, 629; County of Santa Clara v. Trump (N.D. Cal. 2017) 250 F.Supp.3d 497, 537 [finding irreparable harm where the threatened loss of federal funding would interfere with the county's "ability to budget, plan for the future, and properly serve their residents" and would cause the county "to take steps to mitigate the risk" of losing funding, such as "placing funds in reserve and making cuts to services"].) Thus, preliminary injunctive relief is inappropriate where it "would cause great immediate harm to the many persons who would be deprived of vital funds, frequently necessary to obtain the necessities of life, and would threaten the continued delivery of a wide range of essential public services." (White v. Davis, supra, 30 Cal.4th at p. 561.)
Viewing the evidence favorably to the City, as we must, the evidence the City submitted shows as of fiscal year 2019-2020, it was in a precarious financial position and the detention centers would provide it with much needed revenue amounting to 20 percent of its annual budget, including an annual payment to supplement the police department's budget for public safety. In addition, half of the graduating class at each of the City's two high schools were to receive $1,000 scholarships, which the City declared totaled about $200,000 per year. As the City asserts, these amounts may be lost should plaintiffs' injunction issue, which could result in the loss of essential services and operations that would adversely affect McFarland's residents.
Plaintiffs assert that because the injunction they seek would allow for currently detained individuals to remain at the detention facilities until they can be released, it is difficult to believe the City will be deprived of all monthly payments should the preliminary injunction issue. The terms of the modified conditional use permits, however, arguably allow GEO to stop making monthly payments when litigation suspends the conditional use permits. The permits provide monthly payments will discontinue "if a court action results in detainee intake being delayed, postponed or suspended prior to any detainees having been received," and "[i]n the event of litigation which does not suspend the Conditional Use Permit or delay its issuance, [GEO] shall continue to make monthly payments described in the foregoing." Based on this language, should an injunction issue suspending the conditional use permits, GEO may refuse to continue making monthly payments despite the continued presence of detainees in the facilities. Based on this evidence, the trial court reasonably could find the City would suffer economic harm should the requested injunction issue, or at least be involved in litigation with GEO over whether they would have a continued obligation to make the called for payments, which would adversely affect its residents.
Paragraph six of the modified conditional use permits provides in pertinent part: "As Fiscal Mitigation for the Project's impact on City Services, including, but not limited to, fire protection, police and public safety, and other public services, the applicant shall pay the City of McFarland $1.00 per bed, per day, for each of the 700 beds repurposed at CVA totaling $255,500.00 annually (the 'Annual Payments'), with monthly payments commencing on July 1, 2020 at the rate of $21,291 per month. The monthly payments shall continue as hereinafter described, but shall discontinue if a court action results in detainee intake being delayed, postponed or suspended prior to any detainees having been received, or if ICE fails to initiate detainee intake. If either event in the previous sentence occurs, once the named conditions are no longer occurring, the monthly payments shall immediately resume. If at any time there are no detainees in the facility, all payment obligations to the city will discontinue. In the event of litigation which does not suspend the Conditional Use Permit or delay its issuance, applicant shall continue to make monthly payments described in the foregoing. Upon receipt of a detainee into the facility, the remainder of the Annual Payment being paid on a monthly basis shall be converted to an Annual Payment, the unpaid balance of which shall be paid to the City within 30 days and all future Annual Payments shall be paid in lump sum payments in full on the first day of August beginning in 2021. If court action overrules the City's issuance of the Conditional Use Permit, the City shall not be required to return any payments made prior to the overruling of the Conditional Use Permit. In the event the underlying contract is cancelled or terminated, all payment obligations to the City will discontinue."
The trial court also could reasonably find the City's economic harm outweighed any deprivation of plaintiffs' constitutional and statutory rights. As we have explained, the City substantially complied with its obligation under the Brown Act to provide public access to the April 23 meeting. The meeting was open to the public, although attendance was limited. The City was aware of the commission's tie vote and the strong objections of community members to issuance of the modified conditional use permits, both as raised before the commission and among the over 800 written comments the city council received. While plaintiffs were harmed due to their inability to view or express oral comments at the meeting, the trial court could find the economic harm to the City and its residents was greater should the injunction issue.
The threat of community spread of COVID-19 from the detention facilities does not establish irreparable harm, as the proposed injunction would not mitigate this threat since the detainees currently being held at the facilities would remain there.
Plaintiffs contend harm should be presumed because the Brown Act provides for injunctive relief for a violation of section 54953, subdivision (a), but the case they rely on, IT Corp. v. County of Imperial, is inapplicable here. In that case, our Supreme Court held "[w]here a governmental entity seeking to enjoin the alleged violation of an ordinance which specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant." (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72.) But here, plaintiffs are not a governmental entity and they have not shown it is reasonably probable they will prevail on the merits.
Plaintiffs contend the City's lost revenue at most would be temporary pending resolution of the case; therefore, the City's economic harm is insufficient to tilt the balance of the equities in the City's favor, citing Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528. There, a homebuilder concerned with losing home sales sought a preliminary injunction to prevent a homebuyer from protesting her home's inferior construction. (Id. at pp. 1534-1535.) The appellate court determined the balance of the hardships did not support granting the preliminary injunction, as the homebuilder could identify only economic hardship, i.e., the loss of home sales, while the homebuyer would suffer potential interference with her freedom of speech. (Id. at pp. 1538-1542.) Here, in contrast to this case, issuance of the proposed injunction would cause the City to suffer economic harm that would adversely affect the public.
Plaintiffs also contend the City's harm is self-inflicted, as the City could have cured the Brown Act violation by holding a new meeting on GEO's request to modify its conditional use permits without limiting public attendance. Plaintiffs assert the balance of harms inquiry does not reward or recognize self-inflicted injuries. (Adtrader, Inc. v. Google LLC (N.D. Cal. 2018) 2018 WL 1876950 *4; United States v. Superior Court (1941) 19 Cal.2d 189, 197 [finding no irreparable injury where the injury would be selfinflicted].) While the City could have held a new hearing and ratified its prior vote, in light of our conclusion that given the circumstances the City substantially complied with the Brown Act, it was not required to do so. Therefore, the City's harm in losing revenue should the injunction issue would not be self-inflicted.
In sum, the trial court did not abuse its discretion in denying the preliminary injunction because the balance of the harms weighed in the City's favor.
DISPOSITION
The trial court's November 25, 2020 order denying plaintiffs' motion for preliminary injunction is affirmed. Costs on appeal are awarded to the City.
WE CONCUR: HILL, P. J., POOCHIGIAN, J.