Kee v. Tulare Cnty. Bd. of Supervisors

RICHARD P. MC KEE et al., Petitioners and Appellants, v. TULARE COUNTY BOARD OF SUPERVISORS, Defendant and Respondent.

F061146

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Dated: November 2, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. VCU236639)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge.

Law Offices of Kelly A. Aviles and Kelly A. Aviles; Dennis A. Winston, a Professional Corporation and Dennis A. Winston; Dietrich, Glasrud, Mallek & Aune and Bruce A. Owdom for Petitioners and Appellants.

Kathleen Bales-Lange, County Counsel, Julia Langley, Deputy County Counsel; Jennifer B. Henning for California State Association of Counties as Amici Curiae on behalf of Defendant and Respondent.

Appellants filed this action pursuant to Government Code section 54960, a section of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (the Brown Act). Appellants' "Verified Second Amended Petition for Writ of Mandate and Declaratory Relief(hereinafter SAP), alleged that respondent, Tulare County Board of Supervisors (the Board), violated the Brown Act "by holding unnoticed lunch meetings, attended by a majority of its members, where business within its subject matter jurisdiction was heard, discussed, deliberated on, and/or taken action on." It alleged that the practice of the Board lunching together dated back to the early 1980's, and was done to foster a collegial relationship among the Board's members. The pleading further alleged that on March 9, 2010, the Board passed a resolution stating "[u]ntil such time as a formal policy is presented and adopted, the members of the Board of Supervisors will suspend its practice of eating together as a group of 3 or more members, unless they are doing so at a ceremonial occasion, or as otherwise permitted under the Brown Act."

The superior court sustained, without leave to amend, the Board's demurrer to the SAP and dismissed the action. Appellants contend that the superior court erred and that the SAP states facts sufficient to constitute a cause of action. As we shall explain, we affirm the judgment.

FACTS

The allegations of the SAP include the following. A division of appellant Visalia Newspapers, Inc., the Visalia Times-Delta (the Newspaper) has published and distributed a newspaper in Tulare County for over 150 years. An examination of public records the Newspaper received from the County showed that over the first seven months of 2009 a majority of the five-member Board was present at 30 meals, paid for by the County. On 11 of these occasions a majority of the Board met on a Monday, the day before a regular Tuesday Board meeting. Three times a Board majority lunched together on a day when the regular Board meeting had been cancelled. On February 1, 2010, the Newspaper published an article entitled "'What do the Tulare County Board of Supervisors talk about at lunch?'" The article quoted one supervisor as having said "'I think these meetings are important to build collegiality.'" On February 17, 2010, appellant McKee wrote to the Board and demanded that the Board "'publicly acknowledge ... that it will nolonger hold such dining meetings where a majority of supervisors are present together, or in serial, wherein business within the Board's jurisdiction is discussed.'" The Board Chairman, J. Steven Worthley, responded on March 5, 2010, with a letter stating:

"'Members of the Board frequently engage in work related activities, which may occur before, during, or after meal time, apart from the regular or special public meetings of the board.... Meals in connection with such activities are 'work-related,' but do not constitute a meeting for purposes of the Brown Act.... [¶] ... In addition, we believe that taking meals together in connection with work-related activities of Board members serves the important purpose of fostering collegial relationships between Board members. This helps insure that the Board operates most effectively and efficiently at public meetings.... [¶] ... Board members may have discussions during meals concerning job issues of common interest that are outside the subject matter jurisdiction of the Board as a whole. These would include such matters as the official activities of individual supervisors, travel planning, and management of the individual Supervisors' offices. These are work-related matters, but not within the scope of the Brown Act.... [¶] ... No member of the Board of Supervisors has committed a violation of the Brown Act.'"

On March 9, 2010, the Board approved a resolution stating in pertinent part: "Until such time as a formal policy is presented and adopted, the members of the Board of Supervisors will suspend its practice of eating together as a group of three or more members, unless they are doing so at a ceremonial occasion, or as otherwise permitted under the Brown Act."

Appellants' first cause of action for declaratory relief sought a declaration that the Board "violated the Brown Act by holding unnoticed lunch meetings where business within its subject-matter jurisdiction was considered." Appellants' second cause of action seeking a writ of mandate sought a "peremptory writ of mandate ordering [the Board] to perform as required by the Brown Act whenever a majority of the Board congregates at the same time and location to hear, discuss, deliberate, or take action on any item that is within its subject matter jurisdiction."

STANDARD OF REVIEW

Our standard of review of an order sustaining a demurrer on the ground that the complaint, here the July 20, 2010 SAP, fails to state facts sufficient to constitute a cause of action is well settled. We review the sufficiency of the complaint de novo. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) "We also consider matters that may be judicially noticed." (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083, disapproved on another ground in Martinez v. Combs (2010) 49 Cal.4th 35, 50, fn. 12.)

When a demurrer is properly sustained on the ground that the complaint fails to state facts sufficient to constitute a cause of action, and leave to amend the pleading is denied and judgment is entered in favor of the demurring defendant, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

THE BROWN ACT

This court provided an overview of the Brown Act in Galbiso v. Orosi Public Utility Dist. (2008) 167 Cal.App.4th 1063 (Galbiso), where we stated:

"'The Brown Act requires that most meetings of a local agency's legislative body be open to the public for attendance by all.' (Los Angeles Times Communications v. Los Angeles County Bd. Of Supervisors (2003) 112 Cal.App.4th 1313, 1321 [].) Its objectives include facilitating publicparticipation in local government decisions and curbing misuse of the democratic process by secret legislation. (Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 95 [].) The Legislature declared its intent in enacting the Brown Act as follows: 'In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [¶] The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.' (§ 54950.)

"To implement these important legislative purposes, section 54953 provides that '[a]ll meetings of the legislative body of a 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, except as otherwise provided in this chapter.' (§ 54953, subd. (a).).... [¶] ... [¶]

"Finally, recourse to the courts for judicial relief is authorized in the event a legislative body violates the Brown Act. Section 54960, subdivision (a), provides that any interested person may commence 'an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency....'" (Galbiso, supra, 167 Cal.App.4th at pp. 1075-1077.)

Government Code section 54952.2, subdivision (a) defines a "meeting" as "any congregation of a majority of the members of a legislative body at the same time and location ... to hear, discuss, deliberate or take action on any item that is within the subject matter of the legislative body." Subdivision (b)(1) prohibits any such meetings or activities...