GALBISO v. OROSI Pub. Util. Dist.

167 Cal.App.4th 1063

84 Cal.Rptr.3d 788

Mary Jane GALBISO, Plaintiff and Appellant,

v.OROSI PUBLIC UTILITY DISTRICT, Defendant and Respondent.

No. F053236.

Court of Appeal, Fifth District, California.

Oct. 23, 2008.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Law Office of Frederick C. Roesti and Frederick C. Roesti for Plaintiff and Appellant.

Law Offices of Michael J. Lampe, Michael J. Lampe, Visalia, and Michael P. Smith, San Jose, for Defendant and Respondent.

OPINION

KANE, J.

Appellant Mary Jane Galbiso (Galbiso) and respondent Orosi Public Utility District (OPUD) have a long-running dispute relating to the sewer assessments imposed by OPUD against Galbiso's land and the efforts by OPUD to enforce those assessments. ¹ The present appeal involves a distinct aspect of the parties' controversy. Specifically, Galbiso filed a complaint alleging that OPUD violated the Ralph M. Brown Act ( Gov.Code, § 54950, ² et seq., hereafter the Brown Act) by the manner in which it conducted meetings and made decisions, and further, that OPUD violated the California Public Records Act ( § 6250, et seq., hereafter the Public Records Act) by its failure to allow Galbiso access to public records. Prior to trial of these particular claims, the parties reached a settlement agreement in open court. The settlement agreement provided among other things that OPUD would comply with the requirements of the Brown Act and the Public Records Act and would not engage in the type of conduct alleged in the complaint. The issue of attorney fees was reserved to the trial court. Believing she had prevailed on the statutory claims, Galbiso moved for an award of attorney fees under both the Brown Act and the Public Records Act. The trial court denied the motion for attorney fees. Galbiso appeals, contending the trial court abused its discretion. We agree, and will reverse the trial court's order denying attorney fees and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

A. Galbiso's Complaint for Declaratory and Injunctive Relief

On December 20, 2005, Galbiso filed a verified complaint seeking declaratory and injunctive relief against OPUD based on asserted violations of the Brown Act and the Public Records Act. According to the allegations, which we now summarize, Galbiso was the owner of two parcels of land, referred to as Parcels 56 and 57, located within the geographical boundaries of OPUD. She purchased Parcel 56 in 2001 and the adjacent Parcel 57 in 2003. In 1995, OPUD established a special assessment district, known as the Orosi 1995 Sewer Improvement District No. 1, to make improvements to its sewer system to be paid by special assessments against property owners who would benefit from the improvements. Galbiso first learned of the special assessments shortly before completing her purchase of Parcel 56 in 2001. Galbiso believed the special assessments imposed against her property were unreasonable or unenforceable because they were based on a previous owner's proposal to build a multi-unit residential complex needing 88 sewer hookups, which proposal had long since been abandoned and the land remained zoned for agricultural use. Further, although OPUD charged her for 88 sewer hookups, it allegedly could not actually provide sewer treatment capacity for that many residential units. After Galbiso's purchase of Parcel 57, OPUD filed a lawsuit to judicially foreclose and sell Parcels 56 and 57 for nonpayment of its special sewer assessments. ³

Galbiso's complaint in the present case further alleged that at a meeting of the OPUD Board of Directors ⁴ held on November 8, 2005, before judgment had been entered in the pending foreclosure action, the members of the Board of Directors adopted a resolution to sell Parcels 56 and 57 in a tax sale process for nonpayment of special assessments. The tax sale was to occur on January 6, 2006. The resolution, referred to as Resolution No. 2005-10, was allegedly prepared-complete with the number of votes cast-prior to the meeting itself. ⁵

Based on the above and other allegations, Galbiso's complaint proceeded to set forth the following causes of action:

First cause of action. In the first cause of action, Galbiso claimed that Resolution No.2005-10 and the tax sale authorized thereby were null and void on the ground that the resolution was approved in violation of the requirements of the Brown Act, which statute provides, among other things, that “[a]ll meetings of the legislative body or local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency....” (§ 54953.) In her prayer for relief, Galbiso sought injunctive relief to prevent OPUD from taking further action to sell Parcels 56 and 57 pending the outcome of appeal in the foreclosure action.

The specific violations of the Brown Act alleged in the first cause of action included the following: (1) Resolution No.2005-10 was allegedly moved, seconded and passed (and votes recorded) prior to the November 8, 2005 meeting at which it was supposed to be publicly considered, and the members of the Board of Directors admitted at the meeting they never saw the resolution even though their vote was recorded in favor of it; and (2) Resolution No.2005-10 was allegedly not the proper subject of a private, closed meeting. The first cause of action further alleged that OPUD improperly sought to sell Galbiso's property at a tax sale as a means of avoiding the jurisdiction of the court over the same dispute in the foreclosure action, including Galbiso's right of appeal therein.

Second cause of action. In the second cause of action, Galbiso sought injunctive relief to prohibit OPUD from continuing to violate the Brown Act. It incorporated the prior allegations and raised other violations of the Brown Act, including the following: (1) Resolution No.2005-10 was passed in a summary fashion at the November 8, 2005 meeting without allowing for public comment, in violation of sections 54950 and 54954.3; (2) OPUD refused to let Galbiso speak during the public comment portion of the November 8, 2005 meeting and called the police in an attempt to prevent her from speaking, in violation of section 54954.3; and (3) OPUD held a closed session on November 8, 2006, regarding the sale of Parcels 56 and 57, but failed to make the necessary public disclosures.

Third cause of action. Galbiso's third cause of action alleged that OPUD violated the Public Records Act by denying to her the same access to public documents that other owners of property within the boundaries of OPUD would be entitled to. Specifically, on several occasions OPUD's Superintendent, Fred Boyles, denied Galbiso access to records by allegedly ordering her to leave OPUD's office. Galbiso sought an injunction to prohibit OPUD from denying or interfering with Galbiso's right under the Public Records Act to inspect and copy such records.

Fourth cause of action. Under the fourth cause of action, entitled “quiet title,” Galbiso sought a judgment that she was owner in fee simple of Parcels 56 and 57, and that OPUD had no right or interest therein.

Fifth cause of action. The fifth cause of action for declaratory relief asserted, among other things, that “[t]he disputes between [Galbiso] and [OPUD] over ... special sewer assessments for which [Galbiso] receives no sewer service is properly before the Court in [OPUD's] action for foreclosure and sale in Orosi v. Galbiso, ... appeal pending.” [Italics added, underscoring omitted.] A judicial determination was sought that “said court jurisdiction cannot be contravened by other attempts by [OPUD] to use other methods to sell Parcels 56 and 57 in contravention thereof.” Additionally, Galbiso prayed for a determination that she was owner in fee simple of Parcels 56 and 57 and that OPUD's lien was invalid. Galbiso's prayer for relief further requested that OPUD be enjoined from taking any action to enforce the special assessments on Parcels 56 and 57.

B. Preliminary Injunction Issued on February 21, 2006

On February 26, 2006, the trial court issued a preliminary injunction pending trial of this matter. The preliminary injunction enjoined OPUD from taking any action to commence or proceed with a tax sale of Parcels 56 and 57. ⁶ The trial court denied the request for preliminary injunction under the Brown Act because Galbiso failed to adequately demonstrate that in the future she will not be permitted to speak during the public comment period at OPUD Board meetings. The trial court granted Galbiso's request that OPUD be required to provide access to its public records, with the exception of records that come within the litigation exception to disclosure under the Public Records Act. The trial court explained the litigation exception was narrow and only applied to documents that were specifically prepared for use in litigation.

C. Demand for Inspection and Production of Maps

In her cause of action based on the Public Records Act, Galbiso alleged that Fred Boyles denied her access to public records when he ordered her on more than one occasion to leave OPUD's office. By letter of December 14, 2005, approximately one week before Galbiso filed her complaint, OPUD's new counsel, Ms. Carlson, notified Galbiso's counsel, Mr. Roesti, that OPUD would produce documents requested under the Public Records Act, unless exempt from production, provided that Galbiso submitted her document request in writing. According to Ms. Carlson, extensive efforts were made afterwards to respond to various Public Records Act requests by Galbiso. However, it was later admitted by Fred Boyles that he asked Galbiso to leave the OPUD office after Galbiso “repeatedly and loudly requested that [he] produce documents” which he did not produce based on his understanding of “advice of counsel.”

On July 11, 2006, Mr. Roesti made a written Public Records Act request to...