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15747485.1
HANSON BRIDGETT LLP
ADAM W. HOFMANN, SBN 238476
ahofmann@hansonbridgett.com
DAVID C. CASARRUBIAS, SBN 321994
dcasarrubias@hansonbridgett.com
425 Market Street, 26th Floor
San Francisco, California 94105
Telephone: (415) 777-3200
Facsimile: (415) 541-9366
Attorneys for Defendant
ASSOCIATION OF BAY AREA
GOVERNMENTS
Ff
Superior Court of California
County of San Francisco
AUG 12 2019
CLERK OF THE COURT
tn bgrag
Deputy Clerk
D
BY:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
NEW LIVABLE CALIFORNIA (d/b/a
Livable California), a California public benefit
corporation, and COMMUNITY VENTURE
PARTNERS, INC., a California public benefit
corporation,
Petitioners/Plaintiffs,
Vv.
ASSOCIATION OF BAY AREA
GOVERNMENTS, a California joint powers
authority, and DOES 1-20,
Respondent/Defendant.
Case No. CPF-19.
E ] ORDER SUSTAINING
RESPONDENTS’ DEMURRER TO
VERIFIED PETITION FOR WRIT OF
MANDATE AND COMPLAINT FOR
INJUNCTIVE AND DECLARATORY
RELIEF FOR VIOLATIONS OF THE
RALPH M. BROWN ACT
Date: August 12, 2019
Time: 9:30 a.m.
Judge: Hon. Ethan P. Shulman
Dept.: 302
Reservation No.: 07120812-19
Action Filed: May 31, 2019
[PROP@SED] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF15747485.1
The demurrer and motion to strike filed by the Association of Bay Area Governments’
(ABAG”) came before this Court in the above-captioned matter on a regularly noticed hearing at
9:30 a.m., on August 12, 2019. Having read and considered the parties’ moving, opposition, and
reply papers and having heard and considered the parties’ arguments at the hearing, the Court
adopts its Tentative Ruling as follows:
ABAG’s demurrer to Petitioners New Livable California and Community Venture
Partners, Inc.’s petition for writ of mandate and complaint for injunctive and declaratory relief is
sustained without leave to amend. Government Code section 54953 requires that tetevonferented >
meetings such as the one at issue in this case have all votes taken by roll call, but Petitioners admit
that the Amended CASA Motion challenged in their Petition was adopted by a valid, roll-call vote
on January 18, 2019. (Pet. 14, 27.) The plain text of the Ralph M. Brown Act allows for
invalidation of an individual vote if that vote violated the statute. (See Gov. Code § 54960.1(a) [a
court is authorized to declare null and void “an action taken by a legislative body of a local agency
in violation of Section 54953”] [emphasis added]; Gov. Code § 54952.6 [“action taken” defined as
2 &6,
“a collective decision,” “a collective commitment,” or “an actual vote”].) There is no statutory
basis for invalidating a subsequent action taken by ABAG based on an alleged prior violation of
the Brown Act on a procedural motion such as the Substitute Motion involved here, nor do
Petitioners do not cite any authority that supports their position. In addition, ABAG is not required
to adhere to the Rules of Order cited by Petitioners and their failure to do so does not render its
actions arbitrary as a matter of law. Therefore, Petitioners cannot state a cause of action as to the
Amended CASA Motion. Petitioners are also unable to state a claim as to the Substitute Motion,
which would have continued the Amended CASA Motion to a later date if it had passed. While
Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 522 suggests that
Petitioners are not required to allege prejudice to state a Brown Act claim, Petitioners have not
established any possibility of demonstrating legally cognizable prejudice on these facts. Under
such circumstances, where “no prejudice is apparent,” the Court has jurisdiction to sustain the
demurrer. (See Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 671 [sustaining
demurrer without leave to amend because no prejudice was apparent from purported Brown Act
{PREPSSED] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF15747485.1
violation.) Petitioners’ allegations of prejudice are based on their right to monitor and report on
each director’s individual vote and their desire to see the Substitute Motion pass. (Pet. 36-37, 76-
78.) Neither is a meaningful source of prejudice, especially given that the Substitute Motion failed
by a vote of 18 to 9 and there is no basis to allege that any directors who voted against the
Substitute Motion would have changed their vote if voting by roll call when they were willing to
have their roll-call votes in favor of the Amended CASA Motion publicly reported. Furthermore,
the statement by ABAG in its announcement of the President’s Report on May 16, 2019 that it
will conduct roll-call votes for all nonunanimous actions, of which the Court takes judicial notice,
neutralizes the controversy moving forward and renders the request for mandate and declaratory
relief superfluous. (RJN; see California High-Speed Rail Authority v. Superior Court (2014) 228
Cal.App.4th 676, 684 [writ of mandamus will not lie to compel the idle act of rescinding and
redoing” a funding plan where the plan had already been acted upon by Legislature in
appropriating bond funds]; County of San Diego v. State of California (2008) 164 Cal.App.4th
580, 595-596 [“As a general proposition courts will not issue a writ of mandate to enforce an
abstract right of no practical benefit to petitioner, or where to issue the writ would be useless,
unenforceable, or unavailing.”].)
Respondent Association of Bay Area Governments’ motion to strike portions of Petitioners
New Livable California and Community Venture Partners, Inc.’s petition for writ of mandate and
complaint for injunctive and declaratory relief is off calendar as moot in light of the Court’s ruling
on the demurrer.
IT IS SO ORDERED
me Arya lz, 2019 ploh__—
Hon. Ethan P. Shulman
JUDGE OF THE SUPERIOR COURT
[PRS26SEB] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
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15747485.1 HANSON BRIDGETT LLP ADAM W. HOFMANN, SBN 238476 ahofmann@hansonbridgett.com DAVID C. CASARRUBIAS, SBN 321994 dcasarrubias@hansonbridgett.com 425 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 Attorneys for Defendant ASSOCIATION OF BAY AREA GOVERNMENTS Ff Superior Court of California County of San Francisco AUG 12 2019 CLERK OF THE COURT tn bgrag Deputy Clerk D BY: SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO NEW LIVABLE CALIFORNIA (d/b/a Livable California), a California public benefit corporation, and COMMUNITY VENTURE PARTNERS, INC., a California public benefit corporation, Petitioners/Plaintiffs, Vv. ASSOCIATION OF BAY AREA GOVERNMENTS, a California joint powers authority, and DOES 1-20, Respondent/Defendant. Case No. CPF-19. E ] ORDER SUSTAINING RESPONDENTS’ DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF FOR VIOLATIONS OF THE RALPH M. BROWN ACT Date: August 12, 2019 Time: 9:30 a.m. Judge: Hon. Ethan P. Shulman Dept.: 302 Reservation No.: 07120812-19 Action Filed: May 31, 2019 [PROP@SED] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF15747485.1 The demurrer and motion to strike filed by the Association of Bay Area Governments’ (ABAG”) came before this Court in the above-captioned matter on a regularly noticed hearing at 9:30 a.m., on August 12, 2019. Having read and considered the parties’ moving, opposition, and reply papers and having heard and considered the parties’ arguments at the hearing, the Court adopts its Tentative Ruling as follows: ABAG’s demurrer to Petitioners New Livable California and Community Venture Partners, Inc.’s petition for writ of mandate and complaint for injunctive and declaratory relief is sustained without leave to amend. Government Code section 54953 requires that tetevonferented > meetings such as the one at issue in this case have all votes taken by roll call, but Petitioners admit that the Amended CASA Motion challenged in their Petition was adopted by a valid, roll-call vote on January 18, 2019. (Pet. 14, 27.) The plain text of the Ralph M. Brown Act allows for invalidation of an individual vote if that vote violated the statute. (See Gov. Code § 54960.1(a) [a court is authorized to declare null and void “an action taken by a legislative body of a local agency in violation of Section 54953”] [emphasis added]; Gov. Code § 54952.6 [“action taken” defined as 2 &6, “a collective decision,” “a collective commitment,” or “an actual vote”].) There is no statutory basis for invalidating a subsequent action taken by ABAG based on an alleged prior violation of the Brown Act on a procedural motion such as the Substitute Motion involved here, nor do Petitioners do not cite any authority that supports their position. In addition, ABAG is not required to adhere to the Rules of Order cited by Petitioners and their failure to do so does not render its actions arbitrary as a matter of law. Therefore, Petitioners cannot state a cause of action as to the Amended CASA Motion. Petitioners are also unable to state a claim as to the Substitute Motion, which would have continued the Amended CASA Motion to a later date if it had passed. While Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 522 suggests that Petitioners are not required to allege prejudice to state a Brown Act claim, Petitioners have not established any possibility of demonstrating legally cognizable prejudice on these facts. Under such circumstances, where “no prejudice is apparent,” the Court has jurisdiction to sustain the demurrer. (See Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 671 [sustaining demurrer without leave to amend because no prejudice was apparent from purported Brown Act {PREPSSED] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF15747485.1 violation.) Petitioners’ allegations of prejudice are based on their right to monitor and report on each director’s individual vote and their desire to see the Substitute Motion pass. (Pet. 36-37, 76- 78.) Neither is a meaningful source of prejudice, especially given that the Substitute Motion failed by a vote of 18 to 9 and there is no basis to allege that any directors who voted against the Substitute Motion would have changed their vote if voting by roll call when they were willing to have their roll-call votes in favor of the Amended CASA Motion publicly reported. Furthermore, the statement by ABAG in its announcement of the President’s Report on May 16, 2019 that it will conduct roll-call votes for all nonunanimous actions, of which the Court takes judicial notice, neutralizes the controversy moving forward and renders the request for mandate and declaratory relief superfluous. (RJN; see California High-Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676, 684 [writ of mandamus will not lie to compel the idle act of rescinding and redoing” a funding plan where the plan had already been acted upon by Legislature in appropriating bond funds]; County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 595-596 [“As a general proposition courts will not issue a writ of mandate to enforce an abstract right of no practical benefit to petitioner, or where to issue the writ would be useless, unenforceable, or unavailing.”].) Respondent Association of Bay Area Governments’ motion to strike portions of Petitioners New Livable California and Community Venture Partners, Inc.’s petition for writ of mandate and complaint for injunctive and declaratory relief is off calendar as moot in light of the Court’s ruling on the demurrer. IT IS SO ORDERED me Arya lz, 2019 ploh__— Hon. Ethan P. Shulman JUDGE OF THE SUPERIOR COURT [PRS26SEB] ORDER SUSTAINING DEMURRER TO VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF