Filed 5/4/17 Rizzo v. County of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 This opinion has not been certified for publication or ordered published for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 ONE
JOHN RIZZO et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
B265442
(Los Angeles County
Super. Ct. No. BC518435)

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Barbara A. Meiers, Judge. Affirmed.
Law Offices of Jason D. Ahdoot, Jason D. Ahdoot, for
Plaintiffs and Appellants.
Mary C. Wickham, County Counsel, Elaine M. Lemke,
Acting Assistant County Counsel, Scott Kuhn, Deputy County
Counsel, for Defendants and Respondents County of Los Angeles;
Board of Supervisors of Los Angeles County, Don Knabe, Zev
Yaroslavsky, Mark Ridley-Thomas, and Gloria Molina.
2
Cox, Castle & Nicholson, Edward C. Dygert for Respondent
Real Party in Interest Esprit One, LLC.
___________________________________
The Ralph M. Brown Act (Gov. Code, § 54950 et seq.;
Brown Act)
1
requires that most meetings of a public agency’s
legislative body be open to the public. The Brown Act provides
that any interested person may commence an action to obtain a
judicial determination that a public action taken in violation of
the act is null and void.
John Rizzo and The Marina Tenants Association
(collectively Rizzo) sought declaratory and injunctive relief
against the Los Angeles County Board of Supervisors (the Board)
on the ground that it violated the Brown Act by approving a real
property transaction in a closed session. Rizzo appeals from the
judgment entered after the trial court granted defendants’ motion
for summary judgment. He contends the judgment should be
reversed because defendants admitted they violated the Brown
Act by permitting board staff to negotiate the property
transaction away from public view. We disagree and thus affirm.
BACKGROUND
Marina del Rey is a public recreational facility owned by
the County of Los Angeles (the County) and managed by the
County’s Department of Beaches and Harbors. The marina
comprises parcels of real property, many of which are leased to
private concessionaires to be operated in the public interest. In
2003, the County entered into a lease agreement (the 2003 lease)
with Esprit One, LLC regarding Marina del Rey parcel 12R
1 Undesignated statutory references will be to the
Government Code.
3
(parcel 12R). The 2003 lease requires that the County approve
any assignment and transfer of the leasehold.
In 2013, Esprit One proposed to assign and transfer its
leasehold interest in parcel 12R to Gateway KW-Esprit I Owner,
LLC (Gateway KW). The Department of Beaches and Harbors
thereafter conducted several meetings to discuss and negotiate
requirements for County approval of the transfer. The meetings
were attended by Esprit One; Gateway KW; and Don Geisinger, a
Department of Beaches and Harbors staff member, with the
assistance of Jeffry A. Heintz, of the law firm Munger, Tolles &
Olson, the County’s outside counsel. After Geisinger, Heintz, and
the Los Angeles County Counsel approved the terms of the
proposed transfer, Geisinger submitted a Board letter to the
County’s Chief Executive Officer recommending that the transfer
be approved.
The matter was placed on the Board’s June 18, 2013
meeting agenda, and was unanimously approved on that date in
open session.
Eight days later, on June 26, 2013, Rizzo requested that
the Department of Beaches and Harbors disclose records relating
to parcel 12R pursuant to the Public Records Act, section 6250 et
seq. In response to the request, Geisinger provided some
documents in paper and CD form, made others available for
inspection, and informed Rizzo that others were available online
or as part of the June 26 Board meeting materials that he
acknowledged he already possessed. Geisinger invited Rizzo to
contact him if he had any questions about the production, but
Rizzo never did.
On August 15, 2013, Rizzo filed the instant lawsuit against
the County, the Board, and four County supervisors, and named
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Esprit One and Gateway KW as real parties in interest. In the
first amended complaint, which is operative, Rizzo alleged the
County violated the Brown Act by (1) approving transfer of the
2003 lease from Esprit One to Gateway KW in a secret session,
and (2) failing to make required documents public. Rizzo sought
declaratory relief, mandamus to set aside the transfer, and an
injunction compelling the County to comply with the Brown Act.
In 2014, plaintiffs requested that defendants produce
documents pertaining to the 2013 transfer from Esprit One to
Gateway KW of the 2003 lease. In response, defendants
represented that Rizzo already possessed most of the documents
he sought—as they had been produced in response to his Public
Records Act in 2013—but all responsive, non-privileged
documents not already provided would be made available to him
for review at a mutually agreeable time. Defendants ultimately
produced 5,271 pages of documents, some of which contained
redactions to protect attorney-client communications.
Defendants moved for summary judgment on the ground
that the County approved the 2013 transfer of the 2003 lease in a
regular public meeting, not in a secret meeting that violated the
Brown Act. The trial court denied defendants’ first summary
judgment motion on the ground that it was unaccompanied by
declarations from the County supervisors attesting they did not
negotiate the 2013 transfer in secret.
On February 13, 2015, defendants filed a second motion to
which they attached the required declarations. In them, Knabe,
Yaroslavsky, Ridley-Thomas, and Molina each declared that
outside of the regular public meeting held on June 18, 2013, he or
she had no personal knowledge of the 2013 property transaction
and provided no direction to any county employee regarding
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negotiations leading up to it. Geisinger declared all documents
provided to the Board were made available to the public.
Defendants also offered the deposition testimony of Rizzo himself,
in which he admitted he had no evidence of any secret meeting.
On March 11, 2015, one month after defendants filed their
second motion for summary judgment, Rizzo filed a motion to
compel further responses to his 2014 request for production of
documents. In it, he complained that more than 10 percent of the
documents defendants produced in 2014 were redacted without
explanation. The trial court denied Rizzo’s motion to compel
“without prejudice to [Rizzo] later appro[a]ching with a factual
justification for [his] request.”
The record on appeal does not contain Rizzo’s opposition to
defendants’ second summary judgment motion.
The trial court granted summary judgment and entered
judgment in favor of defendants.
Rizzo thereafter filed a memorandum of costs, arguing he
was the prevailing party because the instant litigation prompted
defendants to comply with the Public Records Act, and was thus
the catalyst in motivating them to provide the primary relief
sought. The trial court granted defendants’ motion to tax Rizzo’s
costs, finding he “was not the prevailing party” and the “action
was in fact essentially frivolous.” Rizzo then filed a motion for
attorney fees, which the trial court denied.
Rizzo appealed from the judgment and the order denying
his motion for attorney fees. We consolidated the appeals.
DISCUSSION
Rizzo contends the trial court erred in granting summary
judgment and in denying his motion for attorney fees. We
disagree with both contentions.
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I. Summary Judgment
In ruling on a defense motion for summary judgment, the
trial court must determine whether the motion presents material
facts sufficient to establish that one or more of the elements of
the claim cannot be proved, or that there is a complete defense to
the cause of action. (Code Civ. Proc., § 437c, subds. (c), (o)(1) &
(o)(2).) If the defendant’s motion makes such a prima facie
showing, the plaintiff’s opposition must demonstrate the
existence of one or more disputed issues of material fact as to the
cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
Unless triable issues of material fact exist, no trial is required
and the defendant is entitled to judgment on that claim as a
matter of law.
On appeal, we apply an independent standard of review to
determine whether a trial is required—whether the evidence
favoring and opposing the summary judgment motion would
support a reasonable trier of fact’s determination in the plaintiff’s
favor on the cause of action or defense. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In doing so we view the
evidence in the light most favorable to the party opposing
summary judgment. (Id. at p. 843; Alexander v. Codemasters
Group Limited (2002) 104 Cal.App.4th 129, 139.) We accept as
true the facts shown by the evidence offered in opposition to
summary judgment and the reasonable inferences that can be
drawn from them. (Spitzer v. Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1385-1386.)
“‘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
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the democratic process by secret legislation.” (Galbiso v. Orosi
Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1075.) 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. [¶] The
people of this State do not yield their sovereignty to the agencies
which serve them. The people, in delegating authority, do not
give their public servants the right to decide what is good for the
people to know and what is not good for them to know. The
people insist on remaining informed so that they may retain
control over the instruments they have created.” (§ 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).) In addition, “[n]o legislative
body shall take action by secret ballot, whether preliminary or
final.” (§ 54953, subd. (c).) “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).)
In the case of a violation of the Brown Act, “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 provisions of the Brown Act] is null and void.” (§
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54960.1, subd. (a).) A challenged action shall not be determined
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.,
supra, 182 Cal.App.4th at p. 670.)
As pertinent here, subdivision (b) of section 54952.2 of the
Brown Act prohibits “members of a legislative body” from using
“a series of communications of any kind, directly or through
intermediaries, to discuss, deliberate, or take action on any item
of business that is within the subject matter jurisdiction of the
legislative body.”
Section 54953 prohibits secret meetings.
Section 54956.8 permits a legislative body to hold closed
sessions with its negotiator prior to the purchase or sale of real
property, but “prior to the closed session, the legislative body of
the local agency shall hold an open and public session in which it
identifies its negotiators, the real property or real properties
which the negotiations may concern, and the person or persons
with whom its negotiators may negotiate.”
Section 54957.5 requires that documents distributed to a
legislative body be made available without delay to the public. (§
54957.5, subd. (a).)
Here, Rizzo alleged defendants violated the Brown Act by
communicating through intermediaries to discuss and deliberate
transfer of the 2003 leasehold, failing to identify its negotiators
during its secret meetings with Esprit One and Gateway KW,
and failing to make documents available to the public, in
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violation of sections 54952.2, 54953, 54956.8, and 54957.5,
respectively.
In support of defendants’ motion for summary judgment,
members of the Board declared they took no part in negotiating
or approving the 2013 transfer of the 2003 leasehold from Esprit
One to Gateway KW, other than to approve the transfer after an
open public hearing. Geisinger declared all documents provided
to the Board concerning the transaction were made available to
the public. And defendants offered Rizzo’s deposition testimony
in which he admitted he had no evidence of any secret meeting.
This evidence established that defendants did not violate
the Brown Act as Rizzo alleged, and thus obligated Rizzo to offer
countervailing evidence that defendants did violate the act.
Because Rizzo neglected to designate his opposition to
defendants’ summary judgment motion as part of the clerk’s
transcript, we have no basis upon which to determine that he
carried his burden in opposing the motion. Therefore, we
conclude summary judgment was properly granted.
Rizzo argues he has “numerous factual allegations
concerning” the Board’s secret meetings concerning the transfer
of parcel 12R, “precise evidence” of which “can be produced
should this Court order a remand” to the superior court to inquire
behind redactions in the documents defendants produced in 2014
or 2015. As discussed, it was Rizzo’s burden to produce any such
evidence in opposition to defendants’ motion for summary
judgment. It is too late to adduce such evidence for the first time
on appeal.
Rizzo argues the redactions in the documents defendants
produced below were improper, and the material redacted could
evidence secret negotiations by the Board. But in his motion to
10
compel further responses to his production requests, Rizzo
attached only 13 pages of redacted material, none of which
appears to relate to the transfer of parcel 12R. Speculation about
redacted material produced in discovery will not carry a party’s
burden in opposing summary judgment.
II. Attorney Fees
Because Rizzo did not prevail, he is not entitled to attorney
fees. (Cf. Vasquez v. State of California (2008) 45 Cal.4th 243,
250-251 [to be entitled to attorney fees, a party must prevail].)
Rizzo argues he is entitled to attorney fees under the Public
Records Act because this litigation prompted defendants to
produce 5,000 pages in documents that it failed to produce in
response to his Public Records Act request. The argument is
without merit. First, Rizzo did not sue under the Public Records
Act; he sued only for violation of the Brown Act. Second, he made
no showing below, and makes none here, that the documents
produced by defendants in this litigation should have been
produced in response to his Public Records Act request, and were
not.
DISPOSITION
The judgment and order are affirmed. Defendants are to
recover costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J. JOHNSON, J.