Filed 5/31/13 San Joaquin Raptor Rescue Center v. County of Merced CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

SAN JOAQUIN RAPTOR RESCUE CENTER
et al.,                                                                                    F064931

         Plaintiffs and Respondents,                                          (Super. Ct. No. CV000688)

                   v.
                                                                                         OPINION
COUNTY OF MERCED et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Merced County. John D.
Kirihara, Judge.
         James N. Fincher, County Counsel, and Michael P. Calabrese, Deputy County
Counsel, for Defendants and Appellants.
         Law Offices of Donald B. Mooney, Donald B. Mooney and Marsha A. Burch for
Plaintiffs and Respondents.
                                                        -ooOoo-
        In advance of its October 28, 2009, regular meeting, the Merced County Planning
Commission (the Commission) posted an agenda disclosing that the following item
would be considered or discussed at the meeting: “Proposed changes to the Public
Hearing Notice and Agenda to include language regarding CEQA[1] Environmental
Determination and actions on future projects.” At the meeting, the proposal was more
fully specified and was discussed by members of the Commission and by county counsel.
The particular change being proposed was to include the words “MAKE A PROJECT
REGULATORY DETERMINATION”        on future meeting agendas whenever CEQA documents
were going to be considered. No formal vote was taken on the proposed agenda policy,
but the members of the Commission and county counsel expressed their general support.
Afterwards, San Joaquin Raptor Rescue Center and Protect Our Water (petitioners) filed
a petition for writ of mandate against the County of Merced and the Commission
(together the County)2 seeking to set aside the Commission‟s new agenda policy relating
to CEQA matters on the ground that it was not adequately disclosed on the October 28,
2009, meeting agenda in violation of the Ralph M. Brown Act (Gov. Code,3 § 54950 et
seq.; hereafter the Brown Act). The trial court agreed with petitioners and held that the
Brown Act had been violated. We disagree and will reverse.




1     An abbreviation of the California Environmental Quality Act, found at Public
Resources Code section 21000 et seq.
2     We frequently refer to the Commission separately in our discussion, even though
the Commission is an agency of the County and not a separate entity.
3       Unless otherwise indicated, all further statutory references are to the Government
Code.



                                             2.
                          FACTS AND PROCEDURAL HISTORY
The Public Meetings, Agendas and Actions Taken
       The agenda issued by the Commission for its October 28, 2009, meeting first
listed a number of ordinary items of Commission business, and concerning such items the
“ACTION REQUESTED” of the Commission was either “TO APPROVE, DISAPPROVE OR
MODIFY”      particular projects or land use applications, including several subdivision
applications and a request for a conditional use permit. Below these items, under a
separate heading entitled “DIRECTOR‟S REPORT,” the following additional matter was set
forth on the agenda: “Proposed changes to the Public Hearing Notice and Agenda to
include language regarding CEQA Environmental Determination and actions on future
projects.”
       At the October 28, 2009, meeting, the Commission‟s director (who apparently
prepares the meeting agendas) explained that his proposal was to add the following
language to future meeting agendas whenever the Commission will be considering both a
project‟s approval and a CEQA determination as to the same project: “THE ACTION
REQUESTED IS TO MAKE A PROJECT REGULATORY DETERMINATION AND TO APPROVE,

DISAPPROVE OR MODIFY THE APPLICATION.”           After some discussion, the members of the
Commission who were present expressed their general support and/or lack of objection
with the director, implementing the proposal. No formal vote was taken.
       Petitioners filed a petition for writ of mandate against the County alleging that the
Commission‟s new agenda policy should be set aside because the proposal to adopt the
policy was not adequately described on the agenda for the October 28, 2009, meeting. 4
The petition claimed that “[t]he County violated the Brown Act by failing fully and fairly
to describe the Policy item in the Planning Commission agenda” because said agenda

4     The policy itself was not challenged in the Brown Act claim, only the adequacy of
the meeting agenda that implemented it.



                                                3.
allegedly “failed to make any mention of the fact that the Planning Commission intended
to consider and approve a new Policy regarding all future public notices,” and also “[t]he
agenda did not identify the item as an action item.”
       On January 26, 2010, the County‟s board of supervisors directed the Commission
to change its agenda policy or practice, directing that Commission agendas shall state the
specific type of environmental document to be considered. At the Commission‟s meeting
on February 10, 2010, it implemented the County‟s directive and approved a policy that
all future agendas shall be formatted to explicitly state the specific type of environmental
document that will be considered at the meeting.
       After a hearing on the merits of the petition for writ of mandate, the trial court
ruled as follows on the Brown Act cause of action: “[T]his court finds a Brown Act
[v]iolation did occur that was cured and corrected. The agenda did not include the
adoption of the Policy as an action item, but listed [it] as the „Director‟s Report.‟” By
separate order, the trial court found that petitioners were entitled to recover their attorney
fees and costs under section 54960.5 of the Brown Act. Judgment was entered, stating
that petitioners shall recover their costs in an amount to be determined.
       The County timely appealed from the judgment.
                                       DISCUSSION
I.     Standard of Review
       Ordinarily, “[o]n appeal following a trial court‟s decision on a petition for a writ
of mandate, the reviewing court „“need only review the record to determine whether the
trial court‟s findings are supported by substantial evidence.”‟ [Citations.] However, we
review questions of law independently. [Citation.]” (Alliance for a Better Downtown
Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.) Where, as here, an appeal involves
the application of a statute to undisputed facts, our review is de novo. (Southern
California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8;
Alliance for a Better Downtown Millbrae v. Wade, supra, at p. 129.) Additionally,

                                              4.
statutory construction is a question of law requiring our independent review. (Botello v.
Shell Oil Co. (1991) 229 Cal.App.3d 1130, 1134.)
II.    The Trial Court Erred in Finding a Brown Act Violation
       A.     Overview of the Brown Act
       The Brown Act, one of California‟s open meeting laws, provides, among other
things, that “[a]ll meetings of the legislative body 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).) The Brown Act
begins with a forceful declaration of the Legislature‟s purpose: “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 accomplish these vital goals, the Brown Act, inter alia, (i) requires that an
agenda be posted at least 72 hours before a regular meeting and (ii) forbids action on any
item not on that agenda. (§ 54954.2, subd. (a)(1) & (2); Epstein v. Hollywood
Entertainment Dist. II Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868
(Epstein).) In this way, “„[t]he [Brown] Act … serves to facilitate public participation in
all phases of local government decisionmaking and to curb misuse of the democratic
process by secret legislation of public bodies. [Citation.]‟ [Citation.]” (Los Angeles
Times Communications v. Los Angeles County Bd. of Supervisors (2003) 112
Cal.App.4th 1313, 1321-1322.)



                                              5.
       The section of the Brown Act requiring an agenda for regular meetings states more
fully as follows: “At least 72 hours before a regular meeting, the legislative body of the
local agency,[5] or its designee, shall post an agenda containing a brief general description
of each item of business to be transacted or discussed at the meeting, including items to
be discussed in closed session. A brief general description of an item generally need not
exceed 20 words. The agenda shall specify the time and location of the regular meeting
and shall be posted in a location that is freely accessible to members of the public and on
the local agency‟s Internet Web site, if the local agency has one.” (§ 54954.2,
subd. (a)(1).)6 This agenda requirement acts as a limitation on what the public body is
authorized to do at the meeting, because the statute further states that “[n]o action or
discussion shall be undertaken on any item not appearing on the posted agenda .…”
(§ 54954.2, subd. (a)(2).)7
       B.     The Commission’s Agenda Complied with the Brown Act
       As noted, the Brown Act only requires that an agenda contain “a brief general
description of each item of business to be transacted or discussed at the meeting .…”
(§ 54954.2, subd. (a)(1).) When the agenda for the Commission‟s October 28, 2009,
meeting described the matter in question as “Proposed changes to the Public Hearing


5      A “„local agency‟” includes a city or county “or any board, commission or agency
thereof .…” (§ 54951.) A “„legislative body‟” includes “[t]he governing body of a local
agency” and “[a] commission, committee, board, or other body of a local agency,
whether permanent or temporary, decisionmaking or advisory, created by charter,
ordinance, resolution, or formal action of a legislative body.” (§ 54952, subds. (a) & (b).)
There is no question that the Commission comes within these broad definitions.
6       The provision regarding use of the local agency‟s Internet Web site is new. (Stats.
2011, ch. 692, § 8, pp. 5422-5423.) That newly added language is not relevant to any
issue in the present appeal, but is set forth here to show the most current version of the
statute.
7     A few limited exceptions to this rule are set forth in section 54954.2,
subdivisions (a)(2) and (b).



                                             6.
Notice and Agenda to include language regarding CEQA Environmental Determination
and actions of future projects,” the notice did exactly that. The notice adequately
provided a “brief general description” of what was going to be discussed or considered at
the meeting. (§ 54954.2, subd. (a)(1).) We believe that members of the public reading
that agenda would not have been misled, but would have been informed that the subject
matter being considered and addressed at the meeting was that of “[p]roposed changes”
to the “[a]genda” language relating to “future projects” where CEQA determinations
would be made.8
       The trial court took the position that the agenda had to specifically label the item
as an “action” item. We disagree. The Brown Act does not require that any particular
word or words be used, as long as the description on the agenda is adequate to apprise the
public of what is being considered at the meeting. (§ 54954.2, subd. (a)(1).) That was
the case here. The agenda not only described the item in terms of the subject matter
being addressed, it also clearly announced that proposed changes were being considered.
Thus, assuming the Brown Act requires language to indicate action, that wording did so.
Further, and especially in light of the nature of the action proposed, we do not believe
that greater specificity as to how the proposed changes might be implemented (e.g., by
general consensus without a vote, or by formally voting on an agenda policy) was
required. Again, the Brown Act only requires that an agenda provide a “brief general
description of each item of business to be transacted or discussed at the meeting …,”
(§ 54954.2, subd. (a)(1)), so that members of the public will be adequately apprised and
have an opportunity to participate (Epstein, supra, 87 Cal.App.4th at p. 868). The
Commission did so in this instance.


8       Although the word “policy” was not used, the description was clearly adequate to
convey the meaning of either a policy or practice employed by the Commission or its
staff in preparing agendas for meetings.



                                             7.
       Because we conclude the agenda complied with the Brown Act in this case, we
find it unnecessary to address the statutory construction urged by petitioners that a public
agency must always and in every case distinguish and state on the agenda whether a
particular item is either a matter for “discussion” or “action,” or both. We also find it
unnecessary to consider the County‟s alternative argument that what took place at the
October 28, 2009, meeting of the Commission with respect to the item in question was
not an official “action.” (See § 54952.6 [defining “„action‟” under the Brown Act]; see
also Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1118.) Even assuming
that what took place at the meeting on October 28, 2009, with respect to this item was an
“action,” and even assuming that the agenda for that meeting had to describe that it was
more than a discussion point and that action would potentially be taken, the agenda
adequately did so.
       Since we hold the Brown Act was not violated, the trial court‟s order allowing
petitioners to recover attorney fees and costs under section 54960.5 of the Brown Act is
likewise reversed. The County is now the prevailing party in this action. The County has
requested that we remand for further proceedings to allow it the opportunity to pursue its
attorney fees and costs under section 54960.5. We do not believe any purpose would be
served in doing so, since petitioners‟ arguments, while unsuccessful, were not “clearly
frivolous and totally lacking in merit” as required by the statute for the defendant to
recover under that statute. (Ibid.)




                                             8.
                                   DISPOSITION
      The judgment of the trial court is reversed. Costs on appeal are awarded to the
County.

                                                              _____________________
                                                                             Kane, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Cornell, J.




                                           9.
