Case Number: BC518435    Hearing Date: September 09, 2014    Dept: 34

Moving Party: Defendants County of Los Angeles (“County”), Board of Supervisors of Los Angeles County (“Board”), Don Knabe (“Knabe”), Zev Yaroslavsky (“Yaroslavsky”), Mark Ridley-Thomas (“Ridley-Thomas”), and Gloria Molina (“Molina”) (collectively “defendants”), joinder by real party in interest Esprit One LLC (“Espirit One”) and real party in interest Gateway KW-Esprit I Owner, LLC (“Gateway”)

Resp. Party: Plaintiffs John Rizzo and Marina Tenants Association (“plaintiffs”)

Defendants’ motion for summary judgment, or in the alternative summary adjudication is DENIED.

PRELIMINARY COMMENTS:

Defendants are correct that the Opposition was not timely because it was filed two days late. However, in the interest of justice, the Court will consider the opposition.

Nonetheless, the Court notes that the opposition does not provide much in the way of argument or evidence. Further, the Court notes that plaintiffs object on hearsay grounds to various “undisputed facts” in their Separate Statement. The Court would like to remind plaintiffs that the California Rules of Court specifies the format for objections accompanying a Motion for Summary Judgment. (See CRC, Rule 3.1354.)

Despite the fact that the County’s Motion for Summary Judgment/Motion for Summary Adjudication is well-written and highly professional – and plaintiffs’ opposition does not comply in all respects with the California Rules of Court – the Court is compelled, for the reasons stated below, to deny the Motion for Summary Judgment.

BACKGROUND:

Plaintiffs commenced this action on 8/15/13. On 9/16/13, plaintiffs filed a first amended complaint (“FAC”) against defendants for: (1) declaratory relief; (2) mandamus; (3) mandamus; (4) injunctive relief; (5) mandamus; (6) mandamus; (7) mandamus; (8) declaratory relief; (9) declaratory relief; (10) declaratory relief; and (11) mandamus.

The complaint concerns property in Marina del Rey, which is comprised of parcels of real property which are let to private concessionaires (lessees) to be operated in the public interest under lease agreements between the County and the lessee. (FAC ¶¶ 11-14.) Esprit One LLC (“Esprit”) is one such lessee. (Id., ¶ 14.) Plaintiffs allege that within the last two or three years the County entered into negotiations with Esprit for the transfer, assignment, and sale of its leasehold interest. (Id., ¶ 15.) This transfer required the approval of the County and was undertaken to effectuate an assignment of Esprit’s leasehold interest to Gateway. (Id., ¶ 16.)

On 6/18/13, the director of the Department of Beaches and Harbors submitted a letter to the County’s Board of Supervisors requesting and recommending that the Board approve the transfer, execute documents in form approved by the County’s counsel, and perform acts to finalize and complete the transfer. (FAC ¶ 17.) This request and recommendation was placed on the Board’s agenda for its public meeting on 6/18/13. (Id., ¶ 18.) Plaintiffs allege that the agenda was published to the public on 6/13/13 and that this was the first and only such public notice. (Id., ¶ 20.) Plaintiffs allege that, prior to this date, the approval of the transfer had been negotiated with the tacit concurrence and participation of the Board and that a majority of the Board had reached a collective concurrence to approve the transfer prior to the public meeting. (Id., ¶ 22.) The negotiations involved a sales price of $225 million and significant public issues, including the effect of the transfer on the public use requirements and matters concerning finance, policy, and revenue enhancement for the County. (Id., ¶ 23.) Plaintiff alleges these negotiations were conducted secretly and that the Board approved the requests and recommendations at the 6/18/13 public meeting without no discussion, comment, or deliberation. (Ibid.)

Plaintiff’s attorneys made a demand on defendants to cure or correct the alleged violations of the Brown Act. (FAC ¶ 24, Exh. B.) County Counsel replied that no corrective action would be taken in response. (Id., ¶ 25, Exh. C.)

On 2/7/14, plaintiff dismissed the fifth, sixth, seventh, eighth, and ninth causes of action. On 2/10/14, the Court sustained defendants’ demurrer to the third, tenth, and eleventh causes of action in the FAC, without leave to amend. Therefore, the first, second, and fourth causes of action are the only remaining claims in this action.

ANALYSIS:

Defendants move for summary judgment, or in the alternative summary adjudication of the first, second, and fourth causes of action.

Plaintiffs’ first, second, and fourth causes of action seek declaratory, mandamus, and injunctive relief for alleged violations of Government Code sections 54952.2, 54953, and 54956.8. The fourth cause of action also seeks relief for violations of section 54957.5.

Government Code section 54952.2

Section 54952.2 states, in relevant part: “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” (Gov. Code, § 54952.2(b)(1).) “[T]he courts have applied provisions of the act to informal deliberative action, but have always required that some sort of collective decisionmaking process be at stake.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 375. See also Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs (1968) 263 Cal.App.2d 41, 51 [“the term ‘meeting’ [in the Brown Act] extends to informal sessions or conferences of the board members designed for the discussion of public business”].) This may include informal sessions where the legislative body collectively commits to a particular future decision, or informal collective acquisition and exchange of facts before a decision. (Roberts, supra, 5 Cal.4th at p. 376.) “Of course the intent of the Brown Act cannot be avoided by subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the open meeting requirement.” (Ibid.)

Regardless of the formality of the meetings, there must still be collective deliberation. “[T]he mere fact that a majority of the members of the legislative body have reached the same conclusion about an action does not constitute a violation of the Brown Act if the members reached that conclusion acting independently of one another, without deliberation among themselves.” (Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533, 548 [overrturned by statute on other grounds].)

It is undisputed that in 2003 the County entered into a lease agreement with Espirit One for a parcel of land in Marina del Rey. (DMF/PMF 1-3.) Espirit One later approached the County requesting to assign the 2003 lease to Gateway. (DMF/PMF 4.) The assignment began with Espirit one contacting the County’s Department of Beaches and Harbors to seek direction as to the process for the review of the proposed transfer and assignment and the process for obtaining the County’s approval. (DMF/PMF 5.) After the initial inquiry, there were several meetings which served the purpose of acquainting the County and Department with Gateway so that the Department could evaluate Gateway’s qualifications. (DMF/PMF 6.) Outside attorney Jeffrey A. Heintz was retained in April 2013 to assist the Department in with the review of the proposed transaction. (DMF/PMF 7.)

The request and recommendation to approve the amended lease was made in a letter from the Department sent to the Board and dated 6/18/13. (DMF/PMF 8.) The letter was placed on the agenda for the Board’s 6/18/13 public meeting, and the agenda was published to the public on 6/13/13. (DMF/PMF 9-10.) The letter and its attached proposed amended lease were posted on the County’s public website at least 72 hours before the 6/18/13 Board meeting. (DMF/PMF 12.) The agenda included hyperlinks that could be clicked to access and review the agenda documents, including the entry for the amended lease. (DMF/PMF 13.) The proposed amended lease was listed as item 29 on the agenda. (DMF/PMF 14.) A member of the public and Rizzo’s representative spoke at the 6/18/13 meeting. (DMF/PMF 38-41.) Item 29 was held from the Board’s consent calendar because a member of the public requested to make a public comment on it at the meeting. (DMF/PMF 42.)

Defendants assert that the 6/18/13 letter was the only document provided to the Board for the consideration of the amended lease. (DMF 11, 15-17.) The evidence cited to support this assertion include the declarations of Sachi A. Hamai, Executive Officer of the Los Angeles Board of Supervisors, and Don Geisinger, Senior Real Property Agent for the County. (See ibid.) Plaintiffs are correct that Hamai and Geisinger have not established personal knowledge as to the documents received by the Board or its individual members. (See PMF 11.) Defendants do not provide any declarations from the Board members, or other admissible evidence, to support the assertion that the Board did not receive any other communications regarding the lease assignment. Defendants’ citation to plaintiff Rizzo’s deposition testimony is likewise insufficient. (See DMF 16, 63-65; Villa v. McFerren (1995) 35 Cal.App.4th 733, 748 [a party’s deposition testimony regarding lack of knowledge about a subject does not shift the burden of proof as to summary judgment motions if there is no basis to conclude that the deponent would have been situated to have any personal knowledge].)

Defendants likewise fail to provide sufficient evidence to support their assertion that the negotiations regarding the amended lease did not involve any Board members or their staff, that the members did not participate in any negotiations, or that the members did not reach a collective concurrence prior to the 6/18/13 meeting. (DMF 18-28.) In support of this assertion, defendants cite to declarations from Hamai, Geisinger, Jeffrey A. Heintz, Amy Caves (Senior Deputy County Counsel), and Shem Streeter (representative from Gateway). There is no showing that Hamai participated in the negotiations, and Hamai establishes no personal knowledge to support the conclusory declaration that the Board members did not participate in the negotiation. (See Hamai Decl., ¶ 10.) The other individuals were involved in the negotiations. (See Geisinger Decl., ¶ 6; Caves Decl., ¶ 3; Streeter Decl., ¶ 4; Heintz Decl., ¶ 4.) Defendants fail to provide any declarations from the Board members or other admissible evidence which establishes that the members did not met to deliberate on the amended lease. At most, the declarations establish that the declarants themselves are unaware of any involvement by Board members. However, defendants do not clearly identify (or provide declarations from) all of the participants in the negotiations, and it therefore cannot be determined whether the Board members communicated with other individuals beyond those who provided declarations in support of this motion. (See, e.g., Geisinger Decl., ¶ 8 [representatives from Espirit One and Kennedy Wilson also participated in the negotiations].) The declarants fail to establish any personal knowledge as to whether the Board members discussed or deliberated among themselves as to the proposed transfer at any point prior to the 6/18/13 public meeting, and Rizzo’s deposition does not support this assertion since he also has no personal knowledge of the Board members’ actions. (See DMF 19.)

And while plaintiffs may not have presented no evidence of secret serial meetings, the Court can not so readily dismiss their argument that “it is hard to fathom that one of the largest real estate transactions in recent history was completed by a few minutes of deliberation by the board and 2 minutes of public comment.” (See Opp., p. 2:20-21.)

Defendants have not met their burden of establishing that there are no triable issues of fact as to plaintiffs’ claims regarding section 54952.2.

Government Code sections 54953 and 54956.8

Section 54956.8 allows a legislative body to hold closed sessions with a negotiation prior to the purchase, sale, exchange, or lease of real property, so long as the legislative body holds an open and public session wherein it identifies its negotiators, the property, and the persons with whom the negotiations will negotiate. (See Gov. Code, § 54956.8.) With regard to section 54956.8, “[s]tatutory exceptions authorizing closed sessions of legislative bodies are construed narrowly and the Brown Act ‘sunshine law’ is construed liberally in favor of openness in conducting public business.” (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 917.) Section 54953 states that all meetings of a legislative body shall be open and public and that all persons shall be permitted to attend such meetings. (Gov. Code, § 54953(a).)

As with the assertion that the Board members did not engage in secret negotiations, defendants fail to establish any personal knowledge of the declarants as to whether the members met in a closed session to discuss the proposed amended lease. (See DMF 30-32.) Nonetheless, plaintiffs do not dispute this assertion. (See PMF 30-31, 34.)

Since plaintiffs are not disputing that the Board did not meet in closed session, defendants have met their burden of establishing that there are no triable issues of fact as to the claims regarding sections 54956.8 and 54953. However, since none of the causes of action solely relate to violations of sections 54956.8 and 54953, this is not sufficient for the Court to grant summary adjudication to defendants.

Government Code section 54957.5

In addition to sections 54952.2 and 54956.8, the fourth cause of action seeks injunctive relief for alleged violations of section 54957.5. Section 54957.5 provides, in relevant part: “Notwithstanding Section 6255 or any other law, agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), and shall be made available upon request without delay.” (Gov. Code, § 54957.5(a).) Plaintiffs allege that defendants “have not been forthcoming regarding Plaintiffs [sic] efforts to obtain documents concerning Item 29 under the Public Records Act, as prohibited by Section 54957.5 of the Brown Act.” (FAC ¶ 65.)

It is undisputed that Rizzo e-mailed a Public Records Act request to the Department on 6/26/13. (DMF/PMF 43.) The request sought financial information relating to costs to build improvements on the subject parcel, and records related to the sale of the parcel. (DMF/PMF 44.) The request did not specifically seek documents that had been distributed to all Board members prior to the 6/18/13 meeting. (DMF/PMF 45.) Geisinger spoke on the phone with Rizzo on 6/27/13. (DMF/PMF 46.) Geisinger then sent Rizzo a follow-up e-mail which states that the relevant responsive document was the letter and attached amended lease. (DMF/PMF 48.) The County provided Rizzo with two pages of documents and referred Rizzo to the online posting of the letter. (DMF/PMF 56-57.)

Defendants contend that plaintiffs were provided with all documents related to the amended lease – the Board letter and proposed amended lease – that were distributed to the Board members prior to the 6/18/13 meeting. (See DMF 51, 53, 58.) Once again, the declarants (Hamai and Geisinger) fail to establish personal knowledge as to what documents were distributed to or received by the Board members. Plaintiffs dispute that the County provided a compact disc containing 360 pages of documents in response to the request; plaintiffs’ counsel declares that the disc only contained 179 pages of documents, many of which were redacted without explanation. (See PMF 66.)

Therefore, defendants have not met their burden of establishing that there are no triable issues of fact as to plaintiffs’ claims based on section 54957.5.

Accordingly, defendants’ motion for summary judgment or summary adjudication is DENIED.