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California First Appellate District Court of Appeal publishes its opinion in LC/CVP v ABAG

On January 6, 2021, the First Appellate District Court of Appeal issued an Order Granting Publication of its opinion in the case of New LivableCA/Community Venture Partners v ABAG, stating that

“For good cause, the request for publication is granted. Pursuant to rule 8.1105(c) of the California Rules of Court, the opinion in the above-entitled matter is ordered certified for publication in the Official Reports.”

That means the opinion of the Court of Appeal is now case law. This opinion will have broad applicability and impacts throughout the state’s legal system. To put it plainly, this is a very big deal.

The significance of this reversal of the decision by the San Francisco Superior Court, to dismiss this case, and its publication cannot be over-stated. The Appeal Court’s opinion will impact future Brown Act petitioners for years to come.

To read the appellate court’s opinion CLICK HERE.

In response to the Court’s decision to publish, Paul Nicholas Boylan, LC/CVP’s appellate legal counsel, said,

“I am extremely happy with this result. By ordering that their opinion be published, the appellate court created new law that will help prevent government agencies throughout California from violating their duties to allow the public to participate in the conduct of the public's business.

“That's what this case is all about. The public cannot fully participate in governmental decisions if the public doesn't know how their elected or appointed representatives vote. This published appellate opinion makes sure that the public will receive information that is vital to the functioning of our democracy.”

Summary of the Court of Appeal Opinion

The Appellate Opinion’s Analysis section addresses several primary issues.

First, the trial court found that Appellants had not and could not allege facts demonstrating legally cognizable prejudice as a consequence of any alleged violation of section 54953(c)(2). The Court of Appeal reversed this, holding that there is no requirement that a Brown Act complaint affirmatively allege prejudice.

Second, the trial court found that the Appellant’s Brown Act violation complaint is moot because there isn’t a live controversy between the parties. The Court of Appeal reversed this, holding (1) the trial court improperly took judicial notice of an ABAG statement; and (2) there was insufficient evidence to support a finding of mootness.

Third, and related to the second issue, the trial court granted ABAG’s demurrer[1] to dismiss the LC/CVP case, claiming that the petitioners failed to make a viable claim. The Court of Appeal reversed this, saying that the trial court acted improperly.

Chronology of events

After winning their appeal of the San Francisco Superior Court’s decision, on December 27, 2020, LC/CVP asked the Court of Appeal to publish their opinion. In his Request to Publish Opinion per Cal. Rules of Court, Rule 8.1120, Paul Nicholas Boylan, LC/CVP’s appellate legal counsel, had argued that the opinion needed to be published because

“Appellants share an interest in promoting and defending the principles of open government. As this case demonstrates, there are serious uncertainties about which agency acts render a Brown Act dispute moot and whether or not there is a requirement to plead and prove prejudice. These uncertainties are barriers to the public’s ability to fully enjoying their rights to observe and participate in the operation of the public’s business.

“This Court’s Opinion significantly resolves these uncertainties. However, unless the Opinion is published, it is not controlling case law that can be cited to guide trial courts. A published opinion would help avoid and prevent public agencies from “gaming” the Brown Act to promote secrecy and lack of transparency. Appellants are convinced that publication is necessary to refresh public agency memory as to what kind of actions resolve Brown Act disputes as a matter of law and which do not.”

Considering that this request was entered on January 3, 2021, and the Court of Appeal granted the request to publish on January 6, 2021, one can only conclude that the Court was in complete agreement.

This successful appeal and reversal of the trial court’s decisions in our case, which has been managed by co-petitioner Community Venture Partners, Inc., since its inception, stands as a testament to the fact that justice is achievable in our legal system, even for small, under-funded nonprofits such as Livable California and Community Venture Partners, representing community voices.

For a more complete background on this case please CLICK HERE and HERE.

ABAG’s history of abusing the Brown Act

Throughout this case, ABAG has lied, intentionally misled, and treated the petitioners with callous disrespect and taken the posture that they have all the money and lawyers in the world to throw around to bury any challenge in nonsensical legal arguments for years. ABAG’s attitude is reminiscent of Donald Trump’s legal team, in that they will attempt to run out the clock and pull anything they can think of out of the air until they’ve exhausted their opponent. Unfortunately, in this case, San Francisco Superior Court judge Schulman was fine with that.

Although we don’t anticipate that this will change ABAG’s approach to litigation, it will certainly throw a major wrench in their repeated, illegal conduct.

Apropos the discussion of the intimidation tactics used by agencies like ABAG and the trial court’s “error” in granting ABAG’s demurrer, which was the basis of dismissing the case, attorney Boylan noted,

"A "demurrer" is a motion to dismiss due to the plaintiff's failure to make a viable claim. It is common for public agencies defending against Brown Act enforcement actions to demurrer to a complaint for the sole purpose of obtaining delay and imposing extra costs on a plaintiff. Demurrers are expensive, but agencies don't care. Their defense costs are financed with tax dollars. But a plaintiff doesn't have that advantage, and agencies know it. Delay and cost can wear a plaintiff down and reduce their will to fight.

“By publishing its opinion, the Court prevents any California public agency from filing a demurrer similar to the one that ABAG filed in this case. The Court of Appeal bluntly stated that the trial judge in this case should not have granted ABAG's demurrer. The published opinion prevents public agencies from obtaining years of delay and prevents them from imposing huge costs on anyone trying to enforce the public right to know how their representatives are voting on matters of public interest and importance."

Of note, this published, Court of Appeal opinion on the impropriety of the trial court’s granting of ABAG’s demurrer is a “civil procedure” opinion, which means it will have broad applicability in a variety of cases.

As I’ve discussed in previous articles, ABAG’s shenanigans, in this case, its outright failure to “report out” the votes of its board members at a public hearing, is particularly ironic because it was ABAG’s repeated failure to do so and their historic penchant for holding secret votes that 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 connection with any action. (AA 009:18-010:1-15.)

Finally, it is interesting to note that prior to receiving the lightning-fast response from the Court of Appeal on its intention to publish its opinion, several organizations, including CalAware, the First Amendment Coalition, and the California News Publisher’s Association, had indicated an interest in sending letters supporting our request for publication, for which are very grateful. This is particularly ironic because it was the California News Publisher's Association (CNPA) that sponsored and lobbied to amend the Brown Act to require "reporting out" votes due to ABAG's prior violations. CNPA created the rules that ABAG violated yet again in our case, and for that, we are indebted to them.

[1] A “demurrer” is defined as an objection that an opponent's point is irrelevant or invalid, while granting the factual basis of the point.

Bob Silvestri is a Marin County 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.