Jamgotchian v. California Horses Racing Board, B211842 (Cal. App. 12/7/2009)

Page 1

JERRY JAMGOTCHIAN, Plaintiff and Appellant, v. CALIFORNIA HORSE RACING BOARD et al., Defendants and Respondents.

B211842

Court of Appeals of California, Second Appellate District, Division Two

December 7, 2009

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC380314, Michael C. Solner, Judge. Affirmed.

Caswell & Associates, Ronald S. Caswell for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Robert L. Mukai, Assistant Attorney General, Sara J. Drake and Jennifer T. Henderson, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports

BOREN, P.J.

The Bagley-Keene Open Meeting Act (the Act) sets forth basic requirements for open meetings by various state entities, including defendant California Horse Racing Board (the Board), and mandates public access to and an opportunity for participation in the actions of those entities. (Gov. Code, §§ 11120, 11121.)¹ Plaintiff Jerry Jamgotchian appeals the dismissal of his complaint seeking declaratory and injunctive relief on the ground that the Board had repeatedly violated the Act when defendants Richard Shapiro (former chairman of the Board) and Ingrid Fermin (former executive director) curtailed his right to speak and criticize the Board at its meetings. We find that the trial court properly sustained the Board's demurrer, because complete transcripts of the hearings in question (of which the trial court took judicial notice) reveal that Jamgotchian either did speak or was justifiably curtailed from speaking when, for example, he wanted to speak about issues not on the agenda. Jamgotchian thus failed to establish any violations of the Act.

FACTUAL AND PROCEDURAL SUMMARY

Jamgotchian owns many thoroughbred race horses and frequently attends and speaks at Board meetings. As described by his attorney, Jamgotchian is "very involved" and the kind of person "a lot of people would refer to as a gadfly." Excluding the present case, Jamgotchian has filed four lawsuits against the Board, three under the California Public Records Act (§ 6251) and one tort action involving a racing steward. According to the Board, Jamgotchian has made over 100 California Public Records Act requests to the Board and has sent hundreds of e-mails to Board staff, commissioners, and attorneys.

In November of 2007, Jamgotchian filed a complaint against the Board, Shapiro, and Fermin (collectively referred to as the Board), alleging causes of action for declaratory relief and injunctive relief. Jamgotchian sought a declaration that the Board violated the Act when Shapiro improperly cut off Jamgotchian's microphone to stop him from expressing negative opinions about the Board and about Fermin during the public comment portion of the October 18, 2007, meeting, even though Jamgotchian still had two minutes remaining out of his five-minute comment period. Jamgotchian also sought a declaration that the Board may not regulate speech during the public comment session of any meeting based on the content of the speech, as any such regulation would violate the speaker's First Amendment rights. He further sought to enjoin the Board from engaging in similar future conduct, and to recover his attorney fees pursuant to section 11130.5. Jamgotchian's complaint attached selected excerpts of the transcript of the Board's meeting.

The Board moved for judgment on the pleadings, urging in pertinent part that the complaint failed to allege facts sufficient to constitute a cause of action under the Act or to support a request for an injunction. As requested by the Board, the trial court took judicial notice of the complete transcript of the October 2007 Board meeting, as well as photos from several frames of the video of that meeting. The trial court found that Jamgotchian did not allege a present controversy, but granted him leave to amend the complaint.

Jamgotchian's first amended complaint added additional factual allegations setting forth four other incidents at Board meetings prior to the meeting on October 18, 2007. He sought to establish a continuing and ongoing pattern of violations of the Act and thus to justify the declaratory and injunctive relief requested. Jamgotchian's first amended complaint attached selected excerpts of transcripts of the Board's meetings.

The Board demurred to the first amended complaint. The Board argued: (1) that Jamgotchian failed to state facts sufficient to constitute a cause of action under the Act because the facts revealed in the complete transcripts established that he was not prevented from criticizing the Board, (2) that any restrictions on Jamgotchian's speech were not based on the content of his speech, but were based on his deviation from the items on the meeting agenda or were otherwise justified, and (3) that Jamgotchian failed to allege facts sufficient to state a cause of action to justify injunctive relief because there was no past or threatened violation of the Act, and thus no future action to enjoin.

In support of its demurrer, the Board requested judicial notice of the complete transcripts of all the Board meetings complained of by Jamgotchian, as well as judicial notice of transcripts from several other Board meetings. The trial court granted this second and more extensive request for judicial notice.

The trial court then sustained the demurrer without leave to amend and entered a judgment of dismissal. Jamgotchian appeals.

DISCUSSUION

I. The standard of review.

"A demurrer tests the legal sufficiency of the complaint . . . ." (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On appeal from an order of dismissal after sustaining a demurrer without leave to amend, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We deem to be true all material facts properly pled (Serrano v. Priest (1971) 5 Cal.3d 584, 591) and those facts that may be implied or inferred from those expressly alleged (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403).

However, a court will not assume the truth of contentions, deductions or conclusions of fact or law, and we may disregard allegations that are contrary to law, or are contrary to a fact of which judicial notice may be taken. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Thus, "where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity." (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.) We "will not close [our] eyes to situations where a complaint contains . . . allegations contrary to facts which are judicially noticed." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

Consistent with the fundamental principle of truthful pleading, a complaint otherwise good on its face can be rendered defective by judicially noticed facts. (Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 771-772; see Code Civ. Proc., § 430.30, subd. (a).) Thus, a demurrer may be sustained on the ground that matters properly subject to judicial notice show that the complaint fails to state facts sufficient to constitute a cause of action. (See Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)

In the present case, Jamgotchian attached excerpts of the transcripts of the Board's meetings as exhibits to both his original complaint and his first amended complaint. Although the excerpts selected might have supported Jamgotchian's allegations, they were contrary to a truthful pleading in the sense that they did not properly represent how the incidents actually occurred. Viewing the complete transcripts of the various Board meetings in their proper contexts, we find that the transcripts contradict the material facts stated in the first amended complaint. These facts revealed in the complete transcripts prevail over the pleaded allegations and, as discussed below, establish facts insufficient to constitute a cause of action based on purported violations of the Act or the First Amendment.

II. The Board, the Act, and applicable First Amendment principles.

The Board is comprised of seven appointed part-time commissioners, and its operations are overseen by an executive director. (Bus. & Prof. Code, §§ 19420, 19421, 19428.) The Board's principal responsibilities are to adopt rules and regulations to protect the public, to control horse racing, to adjudicate controversies arising from the enforcement of the horse racing laws and regulations, to allocate racing dates, and to issue licenses to racing associations, wagering facilities, and participants in horse racing and pari-mutuel wagering. (Bus. & Prof. Code, § 19420; see Cal. Code Regs., tit. 4, div. 4, art. 1.) Issues such as these, as well as reports from staff on matters of current Board concern, typically constitute the business before the Board at its regularly scheduled meetings. The Board generally hears testimony from the necessary parties on an agenda item, such as a license applicant or a Board staff member making a report, and then offers the opportunity for public comment on the agenda item. (§ 11125.7.)

The Board's actions are governed by the Act (§ 11121), the purpose of which is to ensure "that actions of state agencies be taken openly and that their deliberations be conducted openly." (§ 11120.) The Act requires that "[a]ll meetings of a state body shall be open and public and all persons shall be permitted to attend," except as otherwise provided by the Act. (§ 11123, subd. (a).) Generally, the Act requires state boards and commissions to publicly notice their meetings, prepare agendas, accept public testimony, and conduct their meetings in public unless specifically authorized by the Act to meet in closed session. (§§ 11120-11132.)

To...