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This case was last updated from Los Angeles County Superior Courts on 07/20/2019 at 08:36:58 (UTC).

MALIBU TOWNSHIP COUNCIL INC VS CITY COUNCIL OF THE CITY OF M

Case Summary

On 04/10/2013 MALIBU TOWNSHIP COUNCIL INC filed an Other - Writ Of Mandamus lawsuit against CITY COUNCIL OF THE CITY OF M. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JAMES C. CHALFANT and SAMANTHA JESSNER. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2420

  • Filing Date:

    04/10/2013

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Writ Of Mandamus

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JAMES C. CHALFANT

SAMANTHA JESSNER

 

Party Details

Plaintiff and Petitioner

MALIBU TOWNSHIP COUNCIL INC.

Defendants and Respondents

CITY COUNCIL OF THE CITY OF MALIBU

DOES 1 THROUGH 5

HOUSE JOAN

LA MONTE LOU

PEAK SKYLAR

ROSENTHAL LAURA ZAHN

SIBERT JOHN

Interested Parties

MALIBU CITY OF

ARNDT CHRISTINA BULL ESQ.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ANGEL LAW

ANGEL FRANK P.

Respondent and Interested Party Attorney

HOGIN CHRISTI

 

Court Documents

CITY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

5/14/2018: CITY'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

PROOF OF ELECTRONIC SERVICE

8/2/2018: PROOF OF ELECTRONIC SERVICE

Order

3/19/2019: Order

Minute Order

3/19/2019: Minute Order

Order

3/19/2019: Order

Objection

3/29/2019: Objection

 

Docket Entries

  • 06/18/2019
  • at 08:30 AM in Department 56; Status Conference - Not Held - Continued - Stipulation

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  • 06/12/2019
  • Stipulation and Order ( to Continue Status Conference and Proposed Order Thereon); Filed by City Council of the City of Malibu (Defendant); Joan House (Defendant); Lou La Monte (Defendant) et al.

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  • 06/11/2019
  • Proof of Service (not Summons and Complaint); Filed by Malibu Township Council, Inc. (Plaintiff)

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  • 04/03/2019
  • Notice of Status Conference and Order; Filed by Clerk

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  • 04/02/2019
  • at 1:30 PM in Department 1, Samantha Jessner, Presiding; Court Order

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  • 04/02/2019
  • Certificate of Mailing for (Minute Order (Court Order Re Reassignment to Independent Calendar Court) of 04/02/2019); Filed by Clerk

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  • 04/02/2019
  • Minute Order ( (Court Order Re Reassignment to Independent Calendar Court)); Filed by Clerk

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  • 03/29/2019
  • Objection ( To Notice Of Ruling On Motion For Summary Judgment Or, In The Alternative, Summary Adjudication); Filed by City Council of the City of Malibu (Defendant); Joan House (Defendant); Lou La Monte (Defendant) et al.

    Read MoreRead Less
  • 03/27/2019
  • Notice of Ruling; Filed by Malibu Township Council, Inc. (Plaintiff)

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  • 03/19/2019
  • at 08:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Ex Parte Application ( to Strike Late-Filed Evidence of Defendants City Council of the City of Malibu et al.; Declaration of Ellis Raskin in Support) - Held

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412 More Docket Entries
  • 05/17/2013
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 05/17/2013
  • Proof-Service/Summons; Filed by Malibu Township Council, Inc. (Plaintiff)

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  • 04/22/2013
  • Amended Petition; Filed by Malibu Township Council, Inc. (Plaintiff)

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  • 04/22/2013
  • FIRST AMENDED PETITION FOR WRIT OF MANDATE; AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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  • 04/17/2013
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 04/17/2013
  • NOTICE OF TRIAL SETTING CON FIIRINCE & ATIACHEI) ORDERS THEREON

    Read MoreRead Less
  • 04/17/2013
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 04/10/2013
  • SUMMONS ON PETITION

    Read MoreRead Less
  • 04/10/2013
  • PETITION FOR WRIT OF MANDATE; AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

    Read MoreRead Less
  • 04/10/2013
  • Petition; Filed by null

    Read MoreRead Less

Tentative Rulings

Case Number: BS142420    Hearing Date: July 15, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MALIBU TOWNSHIP COUNCIL, INC..,

Petitioner/Plaintiff,

vs.

CITY COUNCIL OF THE CITY OF MALIBU, etc., et al.,

Respondents/Defendants.

CASE NO.: BS142420

[TENTATIVE] ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS

Date: July 15, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Respondents/Defendants City Council of the City of Malibu; City Councilmembers Joan House (“House”), Lou LaMonte (“LaMonte”), Skylar Peak, Laura Zahn Rosenthal, and John Sibert; Respondent/Real Party-in -Interest City of Malibu (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Malibu Township Council, Inc.

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On April 10, 2013, Plaintiff filed a petition for writ of mandate and complaint for declaratory and injunctive relief arising from alleged wrongful actions in connection with a park swap. Plaintiff’s petition for writ of mandate and complaint for declaratory relief asserted the following causes of action against Defendants: (1) writ of mandate under the Brown Act pursuant to California Government Code, Section 54960.1; (2) declaratory relief under the Brown Act pursuant to California Government Code, Section 54960; (3) injunctive relief under the Brown Act pursuant to California Government Code, Sections 54960 and 54960.1; (4) writ of mandate under the California Public Records Act pursuant to California Government Code, Section 6258; and (5) injunctive relief under the California Public Records Act pursuant to California Government Code, Sections 6258.

On July 26, 2013, Plaintiff filed the operative Second Amended Petition (“SAP”) for writ of mandate and complaint for declaratory and injunctive relief , asserting the following causes of action against Defendants: (1) writ of mandate under the Brown Act pursuant to California Government Code, Section 54960.1; (2) declaratory relief under the Brown Act pursuant to California Government Code, Section 54960; (3) injunctive relief under the Brown Act pursuant to California Government Code, Sections 54960 and 54960.1; (4) writ of mandate under the California Public Records Act pursuant to California Government Code, Section 6258; (5) injunctive relief under the California Public Records Act pursuant to California Government Code, Sections 6258; and (6) injunctive relief under the California Public Records Act pursuant to California Government Code, Section 6258.

Pertinent Allegations of the SAP

The SAP relevantly alleges that: (1) what spawned this action is a proposed swap (the “Parkland Swap”) of public parklands that Defendants secretly negotiated in December 2012, with officials and legal representatives of the Santa Monica Mountains Conservancy (“SMMC”), a state agency exercising trusteeship over state-owned parklands in the City of Malibu and the adjacent Santa Monica Mountains (SAP at ¶ 1); (2) by December 20, 2012, a major deal had occurred dramatically redefining city parks and recreation priorities which had been hammered out in total secrecy, without any prior authorizing action taken at any duly noticed City Council meeting, open to the public and public comment (Id. at ¶ 4); (3) Plaintiff seeks a writ of mandate commanding the City Council to set aside and void its actions in violation of the Brown Act (Id. at ¶ 7); (4) Plaintiff seeks declaratory relief to resolve present and actual controversies between the parties concerning the applicability or interpretation of the Brown Act provisions implicated by the City Council’s unlawful conduct (Id.); and (5) the City Council and each of its members are subject to the Brown Act’s open meeting requirements. (Id. at ¶ 15.)

The SAP further alleges that: (1) in the Fall of 2012 or earlier, Councilwoman House approached then Mayor LaMonte with her idea of the Parkland Swap, they discussed this matter between themselves and agreed it was worth pursuing as the preferred means for the City of Malibu to build ballfields to correct what they perceived as a deficit of such facilities in the city (Id. at ¶ 22); (2) before mid-November, they requested a lunch with Mr. Edmiston (“Edmiston”) to propose and discuss, in their capacity as City of Malibu officials, ceding ownership and control of Charmlee Wilderness Park (“Charmlee”) to the SMMC in return for the transfer to the City of Malibu of the state’s 83 acres of the Malibu Bluffs (Id.); (3) on Monday, December 10, 2012, House and LaMonte’s then upcoming meeting with Edmiston to discuss the proposal to swap Charmlee for the 83 acres of the Malibu Bluffs came up and figured in a closed session discussion that preceded the City Council’s regular public meeting of December 10, 2012 (Id. at ¶ 23); (4) this closed session discussed approval of a final settlement in a case filed by the City of Malibu in 2009 against the California Coastal Commission as respondent and the SMMC as real party in interest, which challenged the Coastal Commission’s certification of amendments to the Malibu Local Coastal Program (“MLCP”) in the form of a “public works project” proposed by the SMMC to develop its Malibu park holdings with features such as overnight camping and day-use picnic areas (City of Malibu v. California Coastal Commission, Super. Ct. L.A. County, 2011, Nos. BS121650 and BS121680) (the “Public Works Project Lawsuit”) (Id.); (5) this item of closed session business was not described and did not appear in any way on the City Council’s meeting agenda (Id.); and (6) by December 10, 2012, which is when the City Council discussed the Public Works Project Lawsuit, the City of Malibu had prevailed in trial court and on appeal in that lawsuit (Id.)

Pursuant to the second cause of action in the SAP, Plaintiff alleges that: (1) on December 10, 2012, the City Council discussed the Public Works Project Lawsuit in a closed session and approved a final attorney fee settlement program pursuant to an offer from the SMMC and Mountains Recreation Conservation Authority (“MRCA”) (Id. at ¶ 66); (2) in this closed session, Defendants agreed to payment from the SMMC and MRCA to the City of Malibu as the City of Malibu’s fees and costs in the Public Works Project Lawsuit (Id.); (3) Defendants posted an agenda for the City Council’s December 10, 2012 meeting on or about November 29, 2012, and on December 5, 2012, they posted an amended meeting agenda (Id.); (4) neither agenda made any mention of the City Council’s conference with the City Attorney concerning the Public Works Project Lawsuit, in violation of Section 54954.2(a) (Id.); (5) the City Council failed to publicly report the final litigation settlement agreed to in the December 10, 2012 closed session, in violation of section 54957.1, subdivision (a)(3), which mandates that any action in closed session approving or accepting a final litigation settlement and the substance of the agreement to be reported in open session at the public meeting during which the closed session is held (Id.); and (6) following the closed session, City Attorney Hogin made the following statement at the City Council’s public meeting on December 10, 2012: “Tonight’s regular meeting convened at 6 o’clock. At that time, the council was advised that after the posting of the agenda it came to my attention that there was an offer of settlement with the City [of Malibu] needed to act on prior to Wednesday [December 12, 2012] when the California Coastal Commission was scheduled to have a closed session . . . [a]t that point, the [City] Council recessed to the closed session, took, uh, discussed both of the items that were on the posted agenda, the one that was posted and the one that was added, and ultimately took no reportable action. And that concludes my report.” (Id.)

Pursuant to the second cause of action in the SAP, Plaintiff alleges that: (1) on a more fundamental level, the City Council lacked grounds under the Brown Act to discuss or take action concerning the Public works Project Lawsuit in closed session because open session discussion and approval of the final fee settlement would not have prejudiced the position of the City of Malibu in the Public Works Project Lawsuit (Id.); (2) as such, the City Council violated the Brown Act’s open meeting requirements and section 54956.9, subdivision (a), which allows closed session conferences with the City Attorney regarding pending litigation only when discussion in open session concerning the litigation “would prejudice the position of the [City of Malibu] in the litigation” (Id.); and (3) a judicial declaration of the public rights and duties of the parties is necessary and appropriate. (Id. at ¶ 68.)

Procedural History

On October 31, 2013, the Honorable James C. Chalfant sitting in Department 85 of this Court denied Defendants’ motion for judgment on the pleadings at to the first cause of action in the SAP and granted Defendants’ motion for judgment on the pleadings as to the second and third cause of action in the SAP. On May 28, 2015, Judge Chalfant ruled on Plaintiff’s motion for peremptory writ of mandate and declaratory relief and also ruled on Defendants’ motion for dismissal of Plaintiff’s mandamus cause of action on the ground that it had cured any Brown Act violation that took place. The Court granted Defendants’ motion to dismiss and denied the Brown Act claims.

Plaintiff appealed the Court’s May 28, 2015 ruling and on October 10, 2017, the Second District Court of Appeal issued its ruling in Malibu Township Council, Inc. v. City Council of Malibu, B266893 (nonpub. opn., Oct. 10, 2017)[1]. On appeal, Plaintiff disputed the trial court’s order granting Defendants’ motion for judgment on the pleadings as to the declaratory and injunctive relief. (Id. at *2.) The appellate court reversed, in part, the order on that motion as to the Brown Act cause of action arising under section 54960 for declaratory and injunctive relief. (Id.) The appellate court indicated that in connection with the second cause of action in the SAP “plaintiff alleged a violation of section 54960 and sought declaratory relief.” (Id. at *10.) The decision stated that “Section 54960 was amended by the Legislature in 2012 . . . [and] [t]hus, for alleged acts prior to January 1, 2013 . . . former section 54960 in effect at the time [would apply].” (Id. at *10, fn.6.) Specifically, the appellate court stated that former section 54940(a) allowed an interested person to commence a declaratory relief action or injunctive action “for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body, or 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 to compel the legislative body to audio record its closed sessions as hereinafter provided.” (Id.)

The decision further found that in the SAP “[P]laintiff labeled the various remedies of mandamus, declaratory relief, and injunctive relief as separate causes of action. However, plaintiff’s complaint arises from only two causes of action, one under section 54960 and the other under section 54960.1.” (Id. at *24.) The Second District Court of Appeal opined that “[b]ased on the allegations [of the SAP], plaintiff seeks mandamus and injunctive relief under section 54960.1, and declaratory and injunctive relief under section 54960.” (Id.) The decision therefore held that in the SAP “plaintiff stated a cause of action under Section 54960 for declaratory and injunctive relief.” (Id. at *28.)

The appellate court found that “the only issue remaining for remand [was] [P]laintiff’s section 54960 cause of action for declaratory and injunctive relief related to the December 10, 2012 closed session and application of the closed session requirements under the Brown Act.” (Id. at *31.) The Court remanded for further proceedings, stating that the remand “regarding the December 10, 2012 closed session does not include plaintiff’s arguments concerning defendant’s alleged discussion of the land swap.” (Id. at *32.) Judge Chalfant’s October 31, 2013 order on the motion for judgment on the pleadings was therefore reversed “as to Plaintiff’s cause of action under California Government Code, Section 54960 for declaratory and injunctive relief pertaining to the December 10, 2012 closed session.” (Id. at *33.)

Following remand, Defendants filed a motion for summary judgment and, in the alternative, summary adjudication. On March 19, 2019, the Honorable James C. Chalfant sitting in Department 85 of this Court ruled on Defendants’ motion for summary adjudication and granted summary adjudication as to: (1) Plaintiff’s claims that the attorneys’ fee offer in the override litigation was not a proper subject for closed session under Section 54956.9; and (2) there was a reportable action after the December 10, 2012 meeting under Section 54957.1. The Court denied summary adjudication as to Plaintiff’s claim that the attorneys’ fee offer in the override litigation was not properly added to the December 10, 2012 agenda under Section 54954.2. On April 2, 2019, this case was reassigned for all purposes to Dept. 56 of this Court.

On February 27, 2020, the Honorable Holly J. Fujie sitting in Department 56 of this Court held a status conference. According the Court’s February 27, 2020 minute order, the Court incorporated the Court’s March 19, 2019 order and indicated that “the only issue remaining for decision at the trial of this matter is whether the attorney’s fee offer for the Override Litigation[2] was not properly added to the December 10, 2012 agenda under section 54954.2 of the Brown Act by identifying it in open session as a closed session agenda item before the closed session in which it was discussed.”

The Instant Motion

Defendants filed a motion for judgment on the pleadings on the grounds based on the sole remaining issue in this action, as indicated by the Court’s February 27, 2020 minute order and that the SAP fails to state facts sufficient to constitute a cause of action against Defendants.

Defendants assert that: (1) Plaintiff must allege an actual controversy affecting current or future rights; and (2) Plaintiff fails to allege an actual controversy warranting declaratory relief. Thus, Defendants contend that the sole remaining issue in this action is moot.

Plaintiff opposes Defendants’ motion on the grounds that: (1) there is no legal or factual merit to Defendants’ mootness argument; (2) Defendants’ motion should be denied because it violates the prior court of appeal and trial court decisions in this case; and (3) Defendants’ motion is procedurally improper.

DISCUSSION

“A motion for judgment on the pleadings is subject to the same rules governing demurrers.” (Hardy v. America’s Best Home Loans (2014) 232 Cal.App.4th 795, 802.) “Like a demurrer, the grounds for the motion must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice and the [party’s factual] allegations are accepted as true.” (Id.) “A motion for judgment on the pleadings may be brought by a moving defendant on the grounds the complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Id.) In the context of a motion for judgment on the pleadings a court “accept[s] as true the plaintiff’s factual allegations and construe[s] them liberally.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1220.)

Issue No.1: Procedural Defects

Plaintiff asserts that Defendants’ motion for judgment on the pleadings should be denied on the grounds that it violates California Code of Civil Procedure, Section 438. Plaintiff contends that: (1) Defendants’ motion is untimely; and (2) no mootness appears on the face of the SAP.

California Code of Civil Procedure, Section 438(d) says that “[t]he grounds for the motion . . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” California Code of Civil Procedure, Section 438(d) says that “[w]here the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except at the court may otherwise permit.” California Code of Civil Procedure, Section 438(e) says that “[n]o motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”

The Court rejects Plaintiff’s argument that Defendants’ motion is untimely. On October 28, 2019, the Court set trial for August 24, 2020. Thus, Defendants’ motion was filed within the time set forth in California Code of Civil Procedure, Section 438(e). Moreover, the Court can take judicial notice on its own motion of documents in the file for this case. As such, Plaintiff’s argument with respect to the procedural compliance of Defendants’ motion is not persuasive.

Therefore, the Court finds that Defendants’ motion is not procedurally improper.

Issue No.2: The Law of the Case Doctrine

Plaintiff contends that the Second District Court of Appeal opinion in connection with this matter is the law of case. The Court agrees with Plaintiff.

The law of case doctrine provides that “where, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule of law becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.” (Clemente v. State of California (1985) 40 Cal.3d 202, 211.) “The principle applies to criminal as well as civil matters . . . and to decisions of intermediate appellate courts as well as courts of last resort.” (Id.)

The Court finds that the Second District Court of Appeal opinion in connection to this action is the law of the case. Thus, the Court finds that pursuant to that opinion, former California Government Code, Section 54960 applies since the alleged actions in the complaint occurred prior to such section being amended in 2012 and the amended code section does not apply to actions occurring prior to January 1, 2013. Moreover, the Second District Court of Appeal rejected the applicability of the Regents and Shapiro cases cited by Defendants in their reply brief[3]. Malibu Township Council, Inc. v. City Council of Malibu, B266893 (nonpub. opn., Oct. 10, 2017 at *27-28.)

Issue No.3: Plaintiff’s Failure to Submit a Cease and Desist Letter

Defendants assert that because Plaintiff failed to submit a cure or correct demand with respect to the City Council’s decision to add the Override Litigation to the December 10, 2012 closed session, the Brown Act provides no remedy for the remaining claim under California Government Code, Section 54960.1. Defendants also assert that because Plaintiff’s failed to make a demand under California Government Code, Section 54960.2, the Brown Act provides no remedy for the remaining claim.

California Government Code, Section 54960(a), effective January 1, 2013, provides that “any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one r more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.”

California Government Code, Section 54960.1(a) provides that “[t]he district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency . . . is null and void under this section.” California Government Code, Section 54960.1(b) provides that “[p]rior to any action being commenced pursuant to subdivision (a), the district attorney or interested person shall make a demand of the legislative body to cure or correct the [alleged violative action].” California Government Code, Section 54960.2 sets forth the procedure that a party seeking relief in connection to the past actions of a legislative body must submit a cease and desist letter to the legislative body accused of the violation.

The Court finds Defendants’ citation to California Government Code, Section 54960.1 inapplicable to the issue at bar because that section involves mandamus or an injunction, and Defendants’ motion is grounded on Plaintiff’s seeking declaratory relief. The Legislature amended the Brown Act in 2012 to add Section 54960.2 to the California Government Code. (Stats. 2012, c. 732, § 1.) Thus, pursuant to the appellate court’s opinion, California Government Code, Section 54960.2 does not apply because the alleged wrongful action took place on December 10, 2012 and the former California Government Code, Section 54960 applies.

Issue No.4: Sufficiency of Plaintiff’s Allegations in Connection to Declaratory Relief

California Government Code, Section 54954.2(a)(1) provides that “[a]t least 72 hours before a regular meeting, the legislative body of the local agency . . . shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” “The Brown Act requires that most meetings of a local agency’s legislative body be open to the public for attendance by all.” (TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 146.) “To obtain declaratory relief under section 1060, still other considerations apply.” (Id. at 148.) “A declaratory relief action requires an actual controversy relating to the legal rights and duties of the respective parties . . . not merely an abstract academic dispute.” (Id.) “The actual controversy language in . . . section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties . . . [that] is ripe when reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (Id.) “In other words, [d]eclaratory relief operates prospectively to declare future rights, rather than redress past wrongs, thus set[ting] controversies at rest before they lead to repudiation of obligations, invasions of rights or commissions of wrongs.” (Id.) In the context of declaratory relief and the Brown Act “it is sufficient to allege there is a controversy over whether a past violation of law has occurred.” (California Alliance for Utility etc. Education v City of San Diego (1997) 56 Cal.App.4th 1024, 1029[4].) Where a dispute exists over an entity’s past compliance with the Brown Act, then a plaintiff is entitled to seek declaratory relief. (Id. at 1030.)

The Court finds that Defendants’ citation to City of Navato is not persuasive because that case did not involve application of former California Government Code, Section 54960, which the Second District Court of Appeal has already held applies to this case and this Court finds is the law of the case[5]. The Court incorporates its recitation of the pertinent allegations of the SAP from above and applies it to the Court’s discussion of the sufficiency of Plaintiff’s declaratory relief cause of action. Plaintiff alleges that: (1) a judicial determination and declaration of the public rights and duties of the parties is necessary and appropriate (SAP at ¶ 68); (2) the City Council contends that its closed session discussions and actions on December 10, 2012 do not violate the Brown Act’s open meeting requirements or limit the procedures of the Brown Act governing closed session business (Id. at ¶ 67); and (3) declaratory relief not only resolves the present controversy between Plaintiff and the City of Malibu regarding the City Council’s public duties under the Brown Act’s open meeting requirement but is also likely to prevent future disputes over the meaning and extent of that requirement. (Id. at ¶ 69.)

Thus, based on the allegations of the SAP, Plaintiff has stated a cause of action for declaratory relief. The SAC clearly alleges that declaratory relief is warranted to prevent future disputes.

The Court DENIES Defendants’ motion for judgment on the pleadings.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 15th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Remittitur was filed with this Court on January 29, 2018. Although the Second District Court of Appeal decision is unpublished, it is contained in this Court’s file and as such the Court takes judicial notice of the such decision. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.)

[2] This is also known as the Public Works Project Lawsuit referenced above.

[3] See Regents of University of California v. Superior Court (1999) 20 Cal.4th 509; see also Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904.

[4] This case was relied upon in assessing the sufficiency of the second cause of action in the SAP by the Second District Court of Appeal, which is the law of the case as indicated above.

[5]Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn.2.)

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