City of Palmdale v. Bd. of Directors of the Antelope Valley Healthcare Dist.

Filed 6/26/07 City of Palmdale v. Bd. of Directors of the Antelope Valley Healthcare Dist. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed.

Wm. Matthew Ditzhazy, City Attorney; Kane, Ballmer & Berkman, Deborah L. Rhoads; Aleshire & Wynder and June Ailin for Plaintiffs and Appellants.

Holland & Knight and Roger B. Coven for Defendant and Respondent.

Appellants City of Palmdale (Palmdale) and the Community Redevelopment Agency of the City of Palmdale (the Agency) appeal from dismissal of their petition for writ of mandate against respondent Board of Directors of the Antelope Valley Healthcare District (AVHD) for violation of the Brown Act (Gov. Code 54960, et seq.),^[1] The trial court concluded that AVHD had cured the violations alleged in the petition by passing a resolution nullifying those actions under section 54960.1. Appellants contend the curative resolution was itself adopted in violation of the Brown Act and that AVHDs future violations remained to be addressed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petition for Writ

According to the facts set forth in the writ petition, the Agency is the owner of a 30-acre site located on Tierra Subida Avenue in Palmdale. In 2001, appellants entered into an agreement with third parties to develop a hospital, medical office building, and low income senior housing on the site. In June 2005, immediately prior to groundbreaking, AVHD sent a letter to Palmdale offering to purchase the site. The letter stated that the offer was made in accordance with section 7267.2 in anticipation of the possible adoption by [AVHD] of a resolution of necessity for the acquisition of the subject property by eminent domain and that the price offered was based on an appraisal obtained in accordance with 7267.1.^[2]

Appellants concluded from the letter that AVHD had undertaken an action to acquire the site as defined in section 54952.6.^[3] The petition alleged on information and belief that in so doing, AVHD committed the following violations of the Brown Act: (1) failure to discuss and authorize the action in an open and public meeting, having instead acted in a closed session without complying with sections 54954.2, 54954.5, and 54956;^[4](2) failure to either state on the agenda or publicly announce the subdivision of section 54956.9 that authorized a closed session in violation of that provision;^[5](3) failure to identify its negotiators, the real property that the negotiations would concern, and the person with whom its negotiators could negotiate prior to conducting a closed session as required by section 54956.8;^[6]and (4) discussion of eminent domain before a statutory offer had

been made in violation of section 54956.9, subdivision (c).^[7]Appellants sent a letter to AVHD outlining the alleged violations and demanding they be cured. AVHD responded with a letter which stated it had made no formal decision to seek the property via eminent domain and was confident that [it had] acted in accordance with the [Brown] Act.

The petition, filed July 29, 2005, was allegedly authorized by sections 54960 and 54960.1. Appellants prayed for a declaration that AVHDs apparent authorization to pursue acquisition of the site and to exercise the power of eminent domain with regard to the site be deemed null and void. Appellants also sought a writ of mandate or order directing AVHD to (1) conduct its business with regard to the Site during its regular meetings, except when special meetings are necessary in light of all of the circumstances; (2) conduct all future discussions and take any future actions with regard to the Site in open and public meetings, except when closed sessions are clearly authorized by the Brown Act and are reasonably required in light of all of the circumstances; and (3) tape record its closed sessions and preserve the tape recording for the period and under the terms of security and confidentiality the Court deems appropriate.

AVHDs February Resolution and Motion to Dismiss

In March 2006, AVHD moved to dismiss pursuant to section 54960.1, subdivision (e). In its moving papers, AVHD established that on February 22, 2006, it adopted a resolution (the February Resolution or the Resolution) containing the following language: (1) Except to the extent of authorizing its C.E.O. to make a specific offer for the purchase of the Site on one occasion, [AVHD] hereby declares that it has not authorized the acquisition of the Site, and, to the extent any action taken by [AVHD] as of this date could be interpreted as such an authorization, [AVHD] hereby declares that any such authorization to pursue acquisition of the Site is null and void; (2) Although [AVHDs] preliminary consideration of the use of its eminent domain authority and its authorization pursuant to that authority for the preparation of an appraisal and the communication of an offer to purchase the Site were all properly discussed in closed session pursuant to [section 54956.9, subdivision (c)], [AVHD] understands that [Palmdale] has alleged that certain procedures required by the California eminent domain law were not strictly followed in obtaining the appraisal and making the offer and, accordingly, in order to avoid further controversy and litigation, [AVHD] hereby declares that it will not rely upon said appraisal and offer, which it hereby declares to be null and void, and that, in the event that [AVHD] does decide to pursue the acquisition of the Site by eminent domain in the future, it will start the process anew with all notices and procedures required by law; (3) Although [AVHDs] discussion of the use of its eminent domain authority to acquire the Site was properly held in closed session pursuant to [section 54956.9, subdivision (c)], [AVHD] hereby declares that it has not made a decision to exercise its power of eminent domain and, to the extent any action taken by [AVHD] as of this date could be interpreted as such a decision, [AVHD] hereby declares that any such decision to exercise its power of eminent domain with regard to the Site is null and void.

Appellants Opposition

Appellants opposed the motion to dismiss on the ground that the February Resolution was itself adopted in violation of the Brown Act because the agenda description was inadequate. Appellants submitted a copy of the agenda for AVHDs February 22, 2006 meeting. The agenda stated that during an executive session, not open to the public, there would be a discussion of City of Palmdale Lawsuits (4) vs. Antelope Valley Hospital. Appellants contended this did not comply with statutory requirements for description of pending litigation to be discussed during closed session because it did not include the case numbers.

Appellants also presented the declaration of a Palmdale city councilman who had attended the February 22, 2006 meeting. He recalled that, during the open portion, AVHDs attorney inquired whether the members wanted to take action in open session on the resolution adopted in executive session. A female member asked whether that was to include the amendment. Someone responded yes. Thereafter, a motion was made to adopt the resolution discussed in closed session, and the members voted to approve the resolution. Based on this evidence, appellants contended that the February Resolution was adopted during the open portion of the meeting, and that it should, therefore, have been included as an agenda item for the open session rather than the executive session and that public comment should have been allowed.

Appellants alternatively contended that the February Resolution was inadequate to cure the Brown Act violation because the resolution failed to specifically withdraw or rescind the authorization to the C.E.O. to make the initial offer to purchase the real property. Finally, to the extent the motion to dismiss was based on the propriety of the original action undertaken by AVHD, appellant argued that pre-condemnation offers to purchase real property cannot be authorized in closed session.

Hearing andTrial Courts Ruling

During the hearing on the motion to dismiss, after reviewing the courts tentative decision to grant the motion, counsel for appellants stated that the petition also requested injunctive relief on a going forward basis because of repeated violations of the Brown Act. There was no further discussion of this point.

The trial court granted AVHDs motion to dismiss. Its order stated that the court was persuaded the February Resolution had fully cured the action complained of in appellants petition by declaring the appraisal and offer null and void. Moreover, the court found that passage of the Resolution did not violate the Brown Act. The court agreed with AVHD that the agenda description was adequate and that the apparent discussion and vote on the Resolution during the open session on February 22, 2006 represented AVHDs compliance with section 54957.1, which generally requires a public report on any action taken in closed session and the vote or abstention on that action of every member present. ( 54957.1, subd. (a).) Judgment was entered, and this appeal followed.

DISCUSSION

Appellants contend the petition should not have been dismissed because: (1) the Resolution adopted to cure the alleged Brown Act violations was itself passed in violation of the Brown Act and (2) appellants were entitled to injunctive relief under section 54960 to prevent future violations. We address these contentions in turn.

I

The Section 54960.1 Claim Was Properly Dismissed

Section 54960.1, subdivision (a) provides that any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of [certain Brown Act provisions, including sections 54954.2, 54954.5, and 54956] is null and void. Subdivision (e) of section 54960.1 states that a lawsuit brought under subdivision (a) may be dismissed if the court determines, pursuant to a showing by the legislative body that [the wrongfully undertaken action] has been cured or corrected by a subsequent action of the legislative body.

In securing dismissal of appellants writ petition, AVHD satisfied the trial court that it had properly adopted the February Resolution, which cured any impropriety by declaring the appraisal and offer and any action that could be interpreted as a decision to exercise the power of eminent domain with regard to the property null and void. Appellants contend the trial courts finding was in error because uncontroverted evidence established that the Resolution was adopted in violation of the Brown Act. Conceding that section 54960.1 does not expressly state that an action taken by a legislative body to cure a prior violation of the Brown Act must itself be taken in a manner that complies with the Brown Act . . . , appellants maintain it would be absurd to accept an action taken in violation of the Brown Act as a valid cure or correction of a prior Brown Act violation. We do not find this proposition to be self-evident. The main concern of the Brown Act is that substantive actions taken in violation of its provisions be nullified; the manner in which they are nullified, which could include a court order or a settlement agreement, would necessarily be of less importance. We need not, however, resolve this issue because we agree with the trial court that AVHD substantially complied with the Brown Act in passing the Resolution.

Appellants have three bases for their contention that adoption of the February Resolution violated the Brown Act: (1) a legislative body may not adopt a section 54960.1, subdivision (e), curative resolution in closed session; (2) the agenda description of a lawsuit to be discussed in closed session must include the case number; and (3) AVHD adopted the Resolution in open session without having first described it in the agenda, provided a copy to the public for review, or allowed public comment.

Addressing the first basis, the Brown Act does not specify whether a section 54960.1, subdivision (c) curative resolution may be adopted in closed session. Section 54956.9 permits a legislative body of a local agency to hold a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. Although the provision speaks in terms of confer[ring] and receiv[ing] advice, the attorney general has interpreted this to mean that the legislative body may also use the closed session to deliberate and take action upon the settlement of a lawsuit. (75 Ops.Cal.Atty.Gen. 14, 20 (1992).) As the attorney general explained: Unless a local agency is to be a second class citizen with its opponents filling the ringside seats, [citation], it must be able to confer with its attorney and then decide in private such matters as the upper and lower limits with respect to settlement, whether to accept a settlement or make a counter offer, or even whether to settle at all. . . . A local agency of necessity must be able to decide and instruct its counsel with respect to these matters in private. (Id. at pp. 19-20, quoting Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 56.) In Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, the Supreme Court cited the attorney generals opinion with approval in holding that a similarly-worded provision in the Bagley-Keene Open Meeting Act ( 11120 et seq.) permits a state agency to deliberate and vote on a proposed settlement in closed session. (Southern California Edison Co. v. Peevey, supra, 31 Cal.4th at pp. 799-800; see 11126, subd. (e)(1).) The court held that where a proposed settlement is involved, a state agency is under no compulsion to announce a proposed decision in public session and accept public comment. Noting that the Act permits the body to refuse to identify the litigation under discussion in closed session if identifying it would, in the bodys estimation, jeopardize the conclusion of an advantageous settlement, the court explained: Were the body required after its closed-session deliberations but before [it] actually conclud[ed] the settlement, to announce publicly the proposed settlement and name of the litigation, the protective purpose of [the statute] would be defeated. The Legislature clearly intended . . . that a state body be able to keep private the identity of litigation it is considering settling until it has concluded[d] the settlement (assuming the body believes privacy is strategically necessary to the settlement negotiations). (31 Cal.4th at p. 801.)

Although the action undertaken by AVHD here was not a settlement in the strictest sense, we believe the same principles apply. The adoption of the February Resolution under section 54960.1, subdivision (e), had the similar aim of putting an end to the pending litigation by acceding to the appellants demands.

With respect to AVHDs description of the action in its agenda for February 22, 2006, section 54954.2 requires the legislative body of an agency to post an agenda containing a brief general description of each item of business to be transacted or discussed and forbids discussion on any item not appearing on the posted agenda. The closed session discussion of the February Resolution and the other lawsuits between Palmdale and AVHD was described in AVHDs agenda as City of Palmdale Lawsuits (4) vs. Antelope Valley Hospital. Appellants contention that this description was inadequate relies on section 54954.5 which provides that in describing an intention to confer with legal counsel in closed session about existing litigation, the body will be in substantial compliance with section 54954.2 if the agenda description follows either of two formats: (1) Name of [the] case: (Specify by reference to claimants name, names of parties, case or claim numbers) or (2) Case name unspecified: (Specify whether disclosure would jeopardize service of process or existing settlement negotiations). ( 54954.5, subd. (c).)

The parties debate whether substantial compliance under the first part of section 54954.5, subdivision (c) requires all of the items listed or whether simply providing the names of the parties represents substantial compliance. AVHD contends the word or in the phrase case or claim numbers is intended to signify that including any of the four specified identifiers (claimants name, names of parties, case number, claim numbers) would suffice. Appellants contend the word and is implicit between names of parties and case or claim numbers. The statutory language does not fully support either sides position. To convey an intent to permit any of the listed items to suffice, the parenthetical should read Specified by reference to the claimants name, names of parties, case numbers, or claim numbers. To make clear that names and numbers are required, the parenthetical should read Specified by reference to the claimants name or names of parties and case or claim numbers. We need not resolve whether the failure to include a case or claim number in an agenda description could ever result in nullifying an action regarding litigation during closed session, as we conclude that case numbers were not required in this instance. The record reflects this was not a situation in which the legislative body intended to discuss one of a multitude of lawsuits between the same parties, so that the failure to specify case numbers could have led to confusion. AVHD intended to, and apparently did, confer with and receive advice from its legal counsel regarding all four lawsuits brought by Palmdale. By stating on the agenda that all lawsuits involving Palmdale were to be discussed in closed session, AVHD adequately informed the public concerning its acts and intentions. Accordingly, AVHDs agenda item description substantial[ly] compli[ed] with section 54954.2 and 54954.5.^[8]

Finally, appellants contend that AVHD actually adopted the February Resolution during the open portion of the meeting and was, therefore, required to meet all provisions of the Brown Act applicable to open session items. Appellants assert that the evidence was uncontroverted that AVHD voted in open session . . . .

The question whether AVHD adopted the February resolution in the open portion of the session was a factual issue resolved by the trial court in favor of AVHD. The court concluded that the remarks overheard by appellants declarant during the open session represented a good faith attempt to comply with section 54957.1, which requires the legislative body to publicly report certain actions taken in closed session and also report the vote or abstention on that action of every member present. (See Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 916 [[T]he legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by section 54957.1 of action taken in the closed session].) To the extent the trial court review[s] the evidence to resolve disputed factual issues, and draw[s] inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. (Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at p. 912.) The trial courts conclusions concerning AVHDs actions were supported by the record. According to appellants declarant, prior to the open session vote, counsel for AVHD said the February Resolution had already been adopted in executive session.

Moreover, this is yet another example of AVHD being more open than the Brown Act requires. As we have said, a legislative body is under no obligation to debate or adopt a curative resolution in open session due to the protections for litigation strategy provided by section 54956.9. There is likewise no duty to immediately report the action. In Southern California Edison Co. v. Peevey, interpreting the similar provisions of the Bagley-Keen Open Meeting Act, the Supreme Court explained that it would be an empty gesture were the Act interpreted to allow the agency to deliberate in private, but then require it to reconvene[] in public session (at the same or a later meeting) to actually vote . . . on an unidentified and undescribed litigation proposal, without the opportunity for meaningful public comment. (Southern California Edison Co. v. Peevey, supra, 31 Cal.4th at p. 800.) AVHD cannot be faulted for providing more information than was required concerning a sensitive, litigation-related item.

Based on its findings, the trial court ruled that AVHDs adoption of the February Resolution complied with the Brown Act. Our review of the record and the applicable law persuades us that the trial courts decision was correct.^[9]

II

The Section 54960 Claim Was Properly Dismissed

Appellants contend the petition was improperly dismissed because the section 54960 claim had not been resolved. Under section 54960, any interested person may initiate an action for the purpose of (1) stopping or preventing violations or threatened violations of [the Brown Act] by members of the legislative body of a local agency; (2) to determine the applicability of this chapter to actions or threatened future action of the legislative body; (3) to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States; or (4) to compel the legislative body to tape record its closed sessions . . . . The curative provision of section 54960.1, subdivision (e) is not applicable to actions brought under section 54960 to determine the applicability of the Brown Act to threatened future actions of the legislative body. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1288.)

As AVHD points out, appellant failed to raise this issue in a timely fashion before the trial court. Because appellants did not argue entitlement to section 54960 relief in their opposition memorandum, AVHD did not have an opportunity to address it in the reply and the trial court could not properly consider it. (See JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178 [Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.].) Appellants ask that we address the viability of their section 54960 claim as a pure question of law. We decline to do so.

Moreover, even were we to consider the issue, we would find no ground for reversal. A party cannot base a claim under section 54960 on past actions or a one-time offense. (Shapiro v. San Diego City Council, supra, 96 Cal.App.4th 904, 915; see Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 522-526 [interpreting similar language in Bagley-Keene Open Meeting Act, the court held that the provisions right of action extends only to present and future actions and violations and not past ones].) To state a claim under section 54960, allegations of past violations must be reflective of ongoing procedures or indicative of the legislative bodys mistaken belief that its current practices comply with the Brown Act. (See, e.g., Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at pp. 915-916; Common Cause v. Stirling (1983) 147 Cal.App.3d 518.) Here the petition alleged that AVHD authorized acquisition of the property in a closed session without proper notice and without compliance with section 54956.8 -- a past act. It further alleged on information and belief that AVHD intends to continue to discuss and take action on its acquisition of the Site in closed session and without providing the required public notice, in violation of the Brown Act. Appellants made no attempt to substantiate their belief that the allegedly violative conduct was illustrative of an ongoing practice or that AVHD intended to violate the law in the future. Indeed, the record is uncontradicted that when faced with the allegations of a Brown Act violation, AVHD took steps to nullify the allegedly violative action. (Compare Shapiro v. San Diego City Council, supra, 96 Cal.App.4th at pp. 915-916 [city council took position that it need not post agenda containing brief description of each item of business to be transacted or discussed in closed session]; Common Cause v. Stirling, supra, 147 Cal.App.3d at pp. 520-521 [prior to institution of writ petition, city attorney advised petitioner that the action complained of was not violative of the Brown Act and was not uncommon].) Accordingly, the petition did not state a claim under section 54960 and there was no need for further litigation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Statutory references herein are to the Government Code.

^[2] Although the letter said the offer was being made in accordance with section 726.2, the parties agree that reference to section 7267.2 was intended.

(Fn. 2 continued on next page)

Section 7260 et seq. establishes a uniform policy for the fair and equitable treatment of persons displaced as a direct result of programs or projects undertaken by a public entity. ( 7260.5, subd. (b).) Section 7267 provides that public entities shall, to the greatest extent practicable, be guided by the provisions of the chapter when acquiring property. Section 7267.1, provides that [t]he public entity shall make every reasonable effort to acquire expeditiously real property by negotiation, that [r]eal property shall be appraised before the initiation of negotiations, and that the owner shall be given an opportunity to accompany the appraiser during his or her inspection of the property. Section 7267.2, subdivision (a), provides that [p]rior to adopting a resolution of necessity pursuant to [Code of Civil Procedure] Section 1245.230 [a resolution which must proceed any eminent domain action] and initiating negotiations for the acquisition of real property, the public entity shall establish an amount which it believes to be just compensation therefore, and shall make an offer to the owner or owners of record to acquire the property for the full amount so established . . . .

^[3] Section 54952.6 describes action taken as a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, a proposal, resolution, order or ordinance.

^[4] Section 54954.2, subdivision (a), governing legislative bodies of local agencies, describes the time for posting an agenda ([a]t least 72 hours before a regular meeting) and the required contents (the time and location of the regular meeting and a brief general description of items to be discussed). Section 54954.2 goes on to state that [n]o action or discussion shall be undertaken on any item not appearing on the posted agenda (id., subd. (a)(2)) with certain narrow exceptions, including a need to take immediate action . . . that . . . came to the attention of the local agency subsequent to the agenda being posted . . .  (id., subd. (a)(2) and (b)). Section 54954.5 provides specific examples of how to describe agenda items discussed during closed session. Section 54956 describes when special meetings may be called by the legislative body of a local agency (at any time by the presiding officer . . . or by a majority of the members as long as written notice is mailed to the members, the meeting is publicized through local media, and a notice is posted at least 24 hours prior to the special meeting).

^[5] Section 54956.9 permits a legislative body of a local agency to hold a closed session to confer with, or receive advice from its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. The statute further provides that [p]rior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. ( 54956.9, subd. (c).)

^[6] Section 54956.8 permits a legislative body of a local agency to hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property in order to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. The provision goes on to state that prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern and the person or persons with whom its negotiator may negotiate.

^[7] Section 54956.9, subdivision (c) provides that litigation shall be considered pending for purposes of holding a closed session discussion when [b]ased on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. Appellants apparently believe that this section, when read in conjunction with sections 7267.2 and 54956.8, requires a public agency to hold an open session to identify the particular piece of property it wishes to acquire, appraise the property, and make an offer to the owner of property before discussing eminent domain in closed session.

^[8] We note that because the decision to adopt the February Resolution was akin to adopting a settlement, section 54954.5 allowed AVHD to withhold the name of the case entirely, thereby providing even less information to the public than the description criticized by appellants.

^[9] Because of its findings, the court did not address whether a curative resolution adopted in violation of the Brown Act would be effective to support a dismissal, and we need not address it either. Nor need we discuss appellants contention that an offer to purchase property pursuant to 7267.2 cannot properly be discussed in closed session.