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CVP/LC v ABAG on Brown Act Violation Goes to the Court of Appeal

As detailed in our August 17, 2019 article, CVP/LC v ABAG in San Francisco Superior Court - Round Two, the proceedings and outcome of our case against ABAG, in San Francisco Superior Court, was surprising to say the least. CVP/LC lost in what I characterized as one of the worst decisions I’ve ever witnessed.

In my update of January 29, 2020, I laid out the arguments in our case against ABAG, alleging that they had violated the Ralph M. Brown Act in the way they conducted their hearings on the endorsement of the CASA Compact. In our pleading, we argued that

(1) ABAG failed to “report (record) the votes and abstentions” on a substitute motion at their hearing, and

(2) ABAG's attempt to address that violation (“cure and correct”) failed to comply with the requirements of state law.

The Government Code

Government Code § 54953(c)(2) 2 states:

“The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.” (Emphasis added.)

Section 54952.6 defines “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, proposal, resolution, order or ordinance.” (Emphasis added.)

ABAG acknowledged that it failed to do comply with these simple requirements. As such, ABAG’s violation of the Brown Act is undisputed in this case. The argument that ABAG’s legal counsel brought to trial was that the issue was “moot” because ABAG had cured the defect at their Board hearing, the evening of May 16, 2019, when its Vice President made casual remarks about ABAG’s future conducting of votes and reporting outcomes.

ABAG’s effort to cure their violation was not only insufficient, but the method they used was, in itself, yet another violation of the Brown Act, because they failed to put their discussion if this on the agenda for that May 16th hearing.

Most amazingly, not only did ABAG fail to agendize their “cure,” but on the very afternoon before the May 16th hearing, CVP’s attorney contacted ABAG to ask if ABAG intended to remedy their violation, and was told, directly, that ABAG had no intention of attempting a cure of any kind at the hearing that evening (during which their Vice President made his remarks), because they did not believe they had done anything to violate the law.

Then, ABAG had the audacity to go into court and claim that the statements made by their Vice President did constitute a cure for their violations of the Brown Act.

Subsequently, in November of 2019, CVP filed a Notice of Appeal of the trail court’s decision with the state Court of Appeal.

The Covid-19 pandemic has had a major impact on legal proceedings, causing the courts to be essentially closed for civil matters for almost two months. However, with things beginning to open up again, our case is now back on track.

The CVP Appeal

The CVP appeal involves a number of technical arguments, which are essential to establishing why the Court of Appeal should hear our case and reverse the Trial Court’s decision. One issue is that in ruling against CVP, the Trial Court granted ABAG its “demurrer,” a legal way of saying that ABAG asked the Court to dismiss our case, outright.

As noted CVP’s Appellant’s Opening Brief, CVP legal counsel, Paul Boylan, states,

“The primary issue on appeal is whether Respondent Superior Court (“Trial Court”) erred when it granted Respondent Association of Bay Area Governments (“ABAG”)’s demurrer without leave to amend. To decide this issue, this Court must decide (1) did Appellants allege or imply facts sufficient to support a prima facie cause of action for violation of the Brown Act; and (2) did the Trial Court properly take judicial notice of an unagendized announcement that ABAG had cured and corrected its Brown Act violations?

“Respondent Superior Court decided these issues against Appellant and granted ABAG’s demurrer without leave to amend. For the reasons discussed below, Appellants asks this Court to reverse the Superior Court’s judgment because either (1) Appellant’s amended petition is sufficient for the case to go forward; or (2) Appellant should have leave to amend to plead additional facts.”

The law and case law in this case are abundantly clear. Again, regarding the Trail Court’s error in granting ABAG the demurrer (dismissal of our case), Boylan writes,

All facts alleged in the complaint/petition must be construed most favorably for the plaintiff/petitioner and least favorably for the demurring party. (Perdue v. Crocker Natl. Bank (1985) 38 Cal.3d 913, 922.) [Emphasis added]

“Even if Petitioner’s claims seem unlikely or improbable, the facts alleged must be accepted as true for purposes of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials (1981) 123 Cal.App.3d 593, 604.)” [Emphasis added]

On the Brown Act itself, Boylan writes,

The purpose of the Brown Act is to ensure openness in decision making by public agencies and “to facilitate public participation in all phases of the decision making process” (Service Employees Internat. Union, Local 99 v. Options—A Child Care & Human Services Agency (2011) 200 Cal.App.4th 869, 870) and to “increase public awareness of issues bearing on the democratic process” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424,1438.)” [Emphasis added]

“As a remedial statute, the Brown Act is construed liberally. (Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925, 930.) Consequently, reviewing courts must construe any Brown Act exceptions narrowly, while broadly interpreting provisions calling for open meetings and public participation. (Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063, 1080.)” [Emphasis added]

In particular, one of our central arguments in this appeal is asking the court to rule on ABAG’s failure to cure/correct its Brown Act Violations. To that end, our brief states,

“2. ABAG Did Not Cure/Correct its Brown Act Violations.

“The Trial Court found that ABAG cured and corrected the Section 54953(c)(2) violation when, on May 16, 2019, ABAG’s Vice President announced during the President’s Report that ABAG would conduct roll call votes in the future (the “Vice President’s Statement”). (AA 099:6-10.)

“ABAG requested that the Trial Court judicially notice the Vice President’s Statement per Evidence Code § 452(c) (“resolutions, reports, and other official acts”). 7 (AA 063:1-28) Appellants opposed ABAG’s request. (AA 068.)

“The Trial Court took judicial notice and granted ABAG’s demurrer and finding that the Vice President’s Statement rendered the whole of Appellant’s Petition moot. (AA 099:6-10.)

“The Trial Court could not take judicial notice of the Vice President’s Statement because it was not an official act, and such statements do not merit judicial notice. (Childs v. State of Calif. (1983) 144 Cal.App.3d 155, 162).

“A cure and correct requires a subsequent agency action (Section 54960.1(c)(2), (e) and (f).) A local agency is permitted to take action only during a public meeting upon proper public notice of the possible/intended action. (Section 54954.2(a)(1).) No action “shall be undertaken on any item not appearing on the posted agenda.” (Section 54954.2(b).) [Emphasis added]

“The Vice President’s Statement does not recite the Vice President’s personal knowledge of the specific date that ABAG met, considered, and voted to approve a second motion to call the question and second CASA Compact motion, with the votes for both motions reported out in compliance with Section 54953(c)(2), thereby curing and correcting ABAG’s January 17, 2019, Brown Act violations. The Vice President’s Statement lacks these[1] material details because ABAG did not, in fact, meet after January 17, 2019, to cure and correct its violations of Section 54953(c)(2).

“None of ABAG’s agendas after its January 17, 2019, meeting (when it violated Section 54953(c)(2)) contain any action items curing/correcting ABAG’s January 17, 2019, Brown Act violations. (RJN Exhibits B through D.) Consequently, ABAG could not have taken, and did not take, any action to cure and correct anything, and the Trial Court erred in finding that Appellant’s Brown Act enforcement action is moot. [Emphasis added]

“The Trial Court erred when it took such notice because Courts cannot take judicial notice of self-serving hearsay allegations merely because they are part of a document which qualifies for judicial notice. (Childs v. State of Calif. (1983) 144 Cal.App.3d 155, 162-163; citing Ramsden v. Western Union (1977) 71 Cal.App.3d 873.)

ABAG simply did not cure/correct the Brown Act violations it admits it committed. The resolution of whether or not ABAG cured/corrected any Brown Act violations is, in this case, not subject to resolution by demurrer.” [Emphasis added]

For detailed explanations and citations in our pleading, please see the copy of our brief HERE, or attached below.

The great absurdity of this case is that ABAG violated a law that the legislature passed, because ABAG violated the Brown Act so consistently. As stated in the Brief,

“It is shockingly ironic that ABAG’s historic penchant for holding secret votes by preventing the public from knowing how Board members voted prompted the Legislature to amend the Brown Act to include Section 54953(c)(2) thereby explicitly mandating public agencies to report the vote or abstention for “each member” of the executive body that voted in connected with any action. (AA 009:18-010:1-15.) Despite the complex legislative process for drafting, passing and enacting Section 54953(c)(2), here we are again today, facing the same behavior on the part of the same public agency.”

We pray that the Court of Appeal will see the folly in the Trial Court’s decision and reverses it.

[1] ABAG also requested the Trial Court take judicial notice of the Vice President’s Statement per Evidence Code § 452(h) (“facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy). The Trial Court could not judicially notice any facts other than the fact the statement was made. Most certainly, the Trial Court could not take judicial notice that CASA cured and corrected its January 17, 2019 Brown Act violations, because the Vice President’s Statement omitted those facts.

Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.