Edward J. Britt v. Cupertino City CouncilS y
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court rule 977(�-,
, pr'ohlbIts courts and parties from oitinq or rel rin � opinions not, certified
for publication car ordered ubli heexcept a specified � rule977(b). This � ni
P. Popinion a rrat been certified for
publication or ordered published fpr purposes of rule ,
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
D WA RD J.- BRITTI H029932
Plaintiff and Appellant, (Santa Clara'County
Supenor Court
.. No. 1- CVo 1 27
Of Appeal 81�th
C P RTINO CITY COUNCIL
,
Defendant and Respondent. DEP I2006
MICHAEL J, tERL ', Clerk
Appellant Edward J. Britt filed a first amended petition for writ of mandate
against respondent Cu. er no City Council (Council). In the first' cause of action
appellant .sought declaratory and injunctive relief to compel the City of Cupertino
(City) to hold a special election -on proposed initiatives that Would amend the
City's general lan'. The trial court sustained 'respondent's demurrer without 1 a..Ve
to amend to. this cause of action. In the second cause of action appellant sought
declaratory and injunctive relief under the Ralph M. Brown Act (Gov. Code,
o et seq.), clairning that respondent had violated the open meeting law and
would continue to do so. The trial court granted respondent's motion for summary
judgment and dismissed the action. We find no error 'and- a xrnm.
2
T. Statement of Factsi
On March 4, 2004, appellant, Norman Hackford, and Gerald Cooley sent a
letter to the city clerk an behalf of Concerned Citizens of Cupertino. The letter
stated that they intended to circulate three initiative petitions to the City's voters.
The three proposed initiatives, wbich called for amendments.,.to the general plan,
were attached to the letter, The 'initiatives proposed to establish minimum street
setbacks and maxima' � building heights, and to Brit the dense of dwelling wenunits
der acre. Each of the three initiative petitions stated: "'e the under'signed
registered, qualified voters o the C f Cupertino,
� � �, County of Santa Clara.,
present to the Cupertino CityCouncil this petition and respectfully request � that the
ell �`i rop os&d a'mendnirat to the General'Plan-of the City of Cupertino be,
adopted without alteration or be submitted fitted to a Vote of thepeoplep of the city a
soon as the law requires."
The city clerk forwarded this correspondence to Charles Kilian, the city
attome r. Kilian then decided to confer with t e Council to discuss the validity of
the proposed measures and the Council's various options, including litig'ation. At
Kilian's request, a special. meeting of the Council was scheduled for March
2004.
The city clerk posted the'agenda for the March 10 speeial meeting. It stated
in relevant art: "CLOSED S SESSION 1. Initiating litigation - Gover=ent
Code Section 95 .9 e . Possible action against Edward Britt, Norman
ae ford, and Gerald Cooley related to initiative measures -(building height,
density, -and setbacks).
1 The statement of facts is based on the parties' separate of statements of fact, the
attached exhibits, and the first amended petition.
On March 10, 2004, the Council went into closed session. with Kilian.
Before the meeting was closed, Kilian announted that the meeting had been called
at his request so that he could meet with the Council to discuss its legal rights. He
explained that the agenda listed possible defendants', as required under th6 Brown
{
Act, so that the Council could meet with its attorney in: closed session. He also
noted that -litigation would be discussed,. but it did not mean that the Council
would initiate litigation. The closed session lasted one hour and tern minutes.
When the Council reconvened, Kilian announced that the Council -had taken'the
following action.: "A. The Council decided not to proceed with Iiti ation at this
time against the defendants of the Initiative. . The Council reserved the
right to initiate litigation should the measure be determined to be invalid at some
point in the fat .re. C. Although the City Council had''been ire ited.. to meet
specially with the proponents, council has elected not to do so and has stated that
the proper venue or 'disc . sion of all of flew issues is in the ongoing General.
Play, hearings¢ - The next hearing is scheduled for March 1,and all proponents. or
opponents of the measure(s) are welcome to speak with the Council at that time.
[¶J D. The Council directed the City Manager, pursuant to Section 9212 0£ the
Elections Code, to order report by an independent expert in the field on the
issues. listed .ire Section 9212. The report wo ld.a alYze the Bets ofthe ` ' '
Initiative
should it become- law, and offer recommendations as to how the Council can
comply with all laws, should the measure(s) be passed."
n March 21, Zoo, appellant. encountered Richard Lowenthal, a member
of the City Council, at church. According to appellant, Lowenthal "kind of
reassured [him] about not to be so worried about the statement that they were
eonsid ng litigation against the ro onents, that that was 'u t a necessity to get
the thing to — as a reason for putting it on a closed session.. Not to worry. The
11
really weren't going to sue us." Lowenthal did not tell appellant the to is of
discussion at the prior closed session,
The Council next entered into a closed session concerning the proposed
it dative measures on April 19, 2004. The agenda for that Council 'meeting stated
in relevant part: "CLOSED SESSION 12. Initiating litigation-
� gGovemment
Code Section 54956.9{c}. Possible action against Edward Britt, Norman
Hackford,. and Gerald Cooley related to the initiative measure." The closed
session lasted for 18 minutes. VVIen the Council reconvened Mian announced
that the Council load authorized the release of his legal opinion regard`
g the
City-'s participation in the -initiative process. Kilian also stated that the' Council
had released the "2004 Schedule for the Initiative Report Preparation" as well as
the. ` Initiati 'e Rep opt Drft S cop cof W i .'
The purpose ose of the report was to obtain a impartial l •
� analysis f the three
proposed initiatives. The " us . Analysis" of this document concluded with
the following instructio'n: "If the report. concludes that the City cannot achieve
State re -certified, general plan housing element because of the effects of the
initiatives, the report shall identify the potential consequences to the City o
having a non -certified hou'sffigelement." T.e "'Fiscal •�� Analysis" of the document
evaluated the fiscal effects of the proposed initiatives while the "Legal Analysis"
g �
stated: , '.'T-he legal analysis of the three initiatives should- answer three basic
questions: [4fl (1) Do the initiatives have any basic conflicts with State or Federal
lags that would make it illegal for the City to 'place them on the ballot? [In (2)
Would the initiatives cause the City to commit any illegal acts in an effort to
comply with their directives [ja (3) Do the initiatives result in significant
conflict between -the general Ian. -elements eo .sistenc -rc i reme t intc
� mere
with the City's obligation under the Vallco Development Ageement, RDA
legislation and/or consent decree."
4
5
n June 21, 2004, the Council met again in closed session for one hour and
12 minutes to discuss three items, including itiati lit Lion against the
initiative' proponents. Following the closed session Kilian announced that the
Council had decided not to proceed with litigation regarding the initiative
measures.
On July 19, 20 - the Council held its Fourth closed session on two items,
including possible litigation -against the proponents of the initiative- measures.
i After the 5 5- .mute closed session ended Kilian announced that the Council nc1l had
taken n i L/ r
n Gov'ember 1 ' 2004 the Council passed a resolution setdn -the nex'
genera
municipal election for November 20 . The Council ordered that _t each of
the proped'amedets to �ieral Plan lasedlectigeneral eon
ballot.
iY. Discussion
A. Demurrer
.Appellant contends that the trial court erred in sustaining the demurrer to
. his first cause of action without leave to amend. He argues that the City
zmproperIy placed the proposed initiatives on the general municipal ballot rather
than holding a special election as required by Elections Code section 9214.
- On appeal from a judgme nt of dismissal after a demurrer is sustained, "we
examine the complaint de novo to determine whether it alleges facts sufficient to
slate a cause of action ...." (McCall v. PacifiCare of Cal., Inc. (2001) 25 CalAth
412, 415.) We treat as true the properly pleaded factual allegations of the
complaint. (Sch ifando v. City of Los Angeles (2003) 31 Cal -.4th 1074) 1081.} The
interpretation of a statute is a question of law, which this court reviews de nova.
(County. of Los Angeles v. Superior Court (Kusar) (1993) 18 Ca1.App.4th SS$,
594.}
V
At issue in, the present case is the interpretation of Elections Code section
9214. "As with any statutory construction inquiry, we must look first to the
--language of the statute. To determine legislative intent, '
. court begins �. the words of o the statute, because they generally provide the most reliable indicator f .
legislative intent. ffit is clear are. unambiguous.our muiry end. there is no
need forjudicial construction and a court aria in y nof �nu�e it. If there is no -
ambiguity in the language, we presume the e islatare meant hat it said and the
he
plain meanxn - the statute o ems."(DiamondMultimedia
Superior C`u 1 99 19 Cal.th I - , 1047, ittins andquotation marks
omitted.)
Elections Code section- 9214 states rele nt art: "If the initiative
iition . sig a d by hot less th n 1 percent of the'V ter of the city. .
rid ,
contains a request -that the ordinance be submitt d immediately to a vote
of the
people at a special election," then the legislative '
p . � g . body must ether adopt the
initiative or - order a special election.
In the present ease, the .complaint alleges that the initiative petitions
ose
adopt requested that the Council -either adthe r d amendments . - p to the general
plan or submit the matter "to a vote of the people of the city . ty as soon as the law
requires." lVhile we agree with appellant that this statute does not specify the
exact language that the initiati c etition must include, there must be some
indication to the voters that theproponents of the petition are requesting a '
.special
election. Here voters could have reasonably concluded
- - y ghat they would have the
,opportunity to'vote on the proposed amendments in the next •p pgeneral electron,
rather than in a spell election. Given the additional costs associated wit
h
special election, the petition's reference to the timing of the election could very
well have had an impact on the voters decision to sign the petition. Brice there
was no reference to a special election, the petition failed to meet the requirements .
of Electi ns Code section 9214.
Citing Elections Code sections 100 and 101, appellant argues that the
Legislature has shown that it Knows how to require the use of parficular language
in petition. W fail to see hove this r ent s orts a hant' osition.
- � pp c
Here the statute requires that the petition include a request for a special election
which the proponents failed to do.
Motion for Summary Judgment
Appellant next asserts that the vial court erred 1n granting respondent's
.notion for sunimar r judgment.
"The purpose of the law of summary judgment is to provide courts with a
mechanism- to cut through the pies" �plea:dings in rd r'to determine whether
Elections Code section 100 states in relevant part., o it
� tv .standing and over
provision of law, whenever .any initiative, referendum., recall, nominating petition
or paper, or any over petition or paper, is required to be signed by voters of any.
county, city, school district, or special district subject to petitioning � ,{ onl person
who is an eligible registered voter at the time of signing the petition or paper is
entitled to sign it. Each signer shall at the time of signing the petition or paper
personally affix his or her signature, printed name, and place of residence, giving
street and number, and if no street or number exists, then a designation of the
place of si nce which wilt enable the io ation to be readily
scertaine'd. A
5 ,
space of at least one inch wide shall be left blank after each name for the use of the
elections o `f icial--in, verithe petition or papen er: the art. of a- - tition- for -the
�g p p p
voters' signatures, printed names, and residence addresses and for the'blank spaces
for verification purposes -skull be numbered consecutively commencing with the
number one and continuingthrough the number o i atare spaces allotted -'to
g � p
.each section."
Elections Code section 101 states: "Notwithstanding any other provision of Ian
any state or local initiative petition required to be signed by voters shall contain in
12wpoint type, pr'or to that portion of the petition for voters' signatures, printed
names, and residence addresses, the following languag-e: [10 `NOTICE To THE
PUBLIC S THIS PETITION MAY BE CIRCULATED BY A PAID.
SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT T
ASS.. � ��
despite their allegations, trial is In fact necessary to resolve their dis ut .
[CitationT, (Aguilar V-'. Aan a hf Co. (2001)Cal.4th 826,To
Prevail on a motion for summary� ment " 11 that the defend
.� � � � ant need do'is to
shove I that one or more elements of the cause of
a ton ... cannot be established
by the plaintiff" Icy. at p. 853, citations and quotation marksomitted.) The party
moving for summaryjudgment bears ` the burden f s x '� .here are no
triable issues of material act'and that the movin arty is entitled to judgment as a
matter of law. (Icy, at p. o.. The moving party also "bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue
of material fact, if he carries his burden of production, he causes a sft, and the
opposing party. is then subjected to a burden o production of his �' .] sown tmake
prima fa&i.g of the existence of a lriable - i slue- of material fdd. mid.
"A prima facie showing is one that is sufficient to support the position of the party
in question." (Icy. at P . 8 51. We r View a ruling on a motion for summary
judgment -de novo. (Brassinga v. City � Mountain View 199 Cal. .nth
195, 210.)
Appellant's second cause- of action alleged that the Council held close
- g d
sessions .in violation of the Brown Act.
"The Brown Act ...provides for open meetings for local,legislative bodies
such a 'c councils, boards of Supervisors and- school .
� � oo� . � ... - . .
(1999)74 Cal. .nth 1280, 12 In enacting the Brown'
act, .the Legislature
stated that "Public agencies in this State exist t aid in the conduct ofthe people's
business. It is' the intent of the law that their actions be takes openly and that the*
deliberations be conducted openly." (Gov, Code, § 9.
However, there are exceptions to the open meeting requirement of the
royni Act. Govemment Code section 54956.9 states: "Nothing in this chapter
[i.e., the Brown Act] shall be construed to prevent a legislative body of a local
0]
agency, based oh advice of its legal counsel, from holding a closed session to
confer with, or receive ad is from' its legal counsel regarding pending litigation
when discussion in open session concernir those ratters would prejudice the
g �
position' of the local agency in the litigation." Litigation is considered pendingx
under this section -when "[b]ased on existing facts and circumstances, the
legislative body of the 1ocaI agency has decided to initiate or is deciding whether
to initiate litigation." (Gov. Code, § 54956.9, su d. c .
The California Supreme Court explained the ne essit r for this exception to
the open meeting requirement. "A city council needs freedom to confer with .it
Iaw' Yers confidentially in order to obtain adequate advice, just as does a private
citizen who seeks legal coun1, .even though the scope of confidential meetings is
li nit d by this st .te' -public meeting req ui r n.ts'. The public interest is er &
by the privilege because it permits local go er=ent agencies to seek advice that
may prevent the agency from' becoming embroiled in litigation, and i may - g � g g y eat
the agency to avoid unnecessary controversy with various members of thepublic."
(Roberts v. City ofPalmdale - (19 .'al. 4th 3 63 , 0-3 1.
Here respondent made a'prima facie showing that here were no triable
issues of materY l fact and that it was entitled to judgment as matter of law.
Respondent presented declarations and exhibits establishing ,that the Council went
into dosed session o four occasions t confer with. or receive legal advice
- .-from ..
its attorney regarding whether to initiate litigation against the initiative
proponents. The burden then shifted t6 appellant to show -that a. triable issue of
material fact existed as to whether these dosed sessions were a - iolation of the
Brown Act. Appellant argues that he met his burden by showing that respondent.
took action during its closed sessions that was unrelated to its decision on whether
to initiate litigation. He relies on the following: 1 after its closed session on
March 10, 2004, respondent directed the city manager to order a report that would
10
analyze the effects of the initiatives and offer recommendations as to haw it could
comply with all laws if they should pass; and (2) after its closed session on April
19, 2004, respondent authorized the release of Kilian's legal opinion regarding the
Ci : 's participation in the initiative process and the release of the "2004 Schedule
for the Initiative Report Prep'aration" as well as the "Initiative Report (raft scope
of Work,," However, in our view, the Cou' ncil's -actions after these closed sessions
provides farther support for the - conclusion that the closed session discussions
involved pending litigation against the proponents of .
e 1ni, ati e s . Both actions
indicate that the Council was s-eekingg additional infoinitiatives
rn�.at�on hour tic
pnor to making the decision on whether to proceed with litigation.
Appellant also contends that there is a dispute between. the parties regarding
wlicri Gorernn fit Code' scto 5.9 applies. en
. He claim's that respondent has
.taken the position that it could "discuss virtually anything in a closed session
and r the auspices of Section 6.9 c as I n ' as it is morel `related' to the
matter ofwhether and when to sue." To support his position, appollant focuses on
respondent's responses to special interr gat ries that posed ra ou othctic l
situ .ti ns. In these responses, respondent scat d that it d' could
- discus the following
topics during a closed session: 1 "'offering a compromise law or measure to
initiativeproponents' as an alternative suing the(2).&"the... pros
and cons of an initiatives in the context of discussing the reasons forsuing or not
suing, or the consequences ofsuing versus those of not suing;" (3) "all of the
possible alternatives to suing;" (4) "'the use ofpublic resources o campaign for
or against an initiative' as "a possible .alternative to litigdtion;" ar�d whether to
"obtain a `report' from. an Outside source' ff they have insufficient information
to
make a determination on whether to initiate litigation.
Government Code section 5 9 6.9, subdivision c) provides that
legislative body may hold. a closed session, "to confer with, or receive advice from
its legal counsel re arding pending litigation." n 'der to make a reasoned
decision owhether to pursue litigation, a legislative
body must necessarily
discuss with counsel all of its options, including alternatives to litigation, the
consequences of pursuing litigation or failingio do so and seeking additional
information to make that determination. 'thus, we find no merit to aellant'
ontenti on.
M. Disposition
The judgment is a 'firnned.
Relying on Government Code seetion 54963, appellant also argues that the
legislative body's discussion during a closed session rust be limited to what is
statutorily defined .as. a- "confidential communication.." This section provides in -
relevant
part: "A person may not -disclose confidential information that has been
acquired by being present in'a closed session , .. to a erson' not 'en.tled to rec'eive
it, unless the legislative body authorizes disclosure -of that confidential
information. . , `confidential information' me n's a communication wade in a
closed session that is specifically related to the basis for the legislitive body of a
local agency to meet lawfully in closed session under this chapter.". However,
there is nothing in Government Code section 54963 that specifies. thepermissible'
range of topics in closed sessions and r Govemment Code section 54956.9. It
merely defines the t of information that must not b di cusse •
- � d outs o f Cl o s ed
sessions.
Mi ara, Actsg P.J,
WE CONCUR:
5
McAdams, ,,.
r
:.Duffy, J.
Britt v. Cupertino City Council .
.HQ29932