Filed 8/26/14 Vietnamese-American Community etc. v. City of San Jose CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


VIETNAMESE-AMERICAN                                                  H037748
COMMUNITY OF NORTHERN                                               (Santa Clara County
CALIFORNIA,                                                          Super. Ct. No. CV107082)

         Plaintiff and Appellant,

         v.

CITY OF SAN JOSE, et al.,

         Defendants and Respondents.



                                              I. INTRODUCTION
         Appellant Vietnamese-American Community of Northern California
(VACNORCAL) filed a second amended complaint alleging in the first cause of action
that respondents City of San Jose (City), the City Council, and the San Jose
Redevelopment Agency (hereafter, collectively defendants) had violated the Ralph M.
Brown Act (Gov. Code, § 549501 et seq.; hereafter, the Brown Act) and seeking
injunctive and declaratory relief. In the second cause of action, VACNORCAL sought




         1
         All statutory references hereafter are to the Government Code unless otherwise
indicated.
injunctive and declaratory relief for violation of the California Public Records Act
(§ 6250 et seq.)
       The trial court denied VACNORCAL’s motion for summary adjudication of the
first cause of action for violation of the Brown Act and granted defendants’ competing
motion for summary adjudication of the first cause of action. The second cause of action
for violation of the California Public Records Act proceeded to a court trial.
       On appeal, VACNORCAL argues that the trial court erred by denying
VACNORCAL’s motion for summary adjudication and granting defendants’ motion for
summary adjudication of the first cause of action because the evidence shows that
defendants violated the Brown Act on multiple occasions when City Council members
conducted serial communications outside of a public meeting with respect to an action to
be taken by City Council. No issues are raised in this appeal as to the judgment entered
pursuant to the trial court’s statement of decision on the second cause of action for
violation of the California Public Records Act.
       For the reasons stated below, we conclude that (1) the trial court did not err in
denying VACNORCAL’s motion for summary adjudication of the first cause of action
for violation of the Brown Act; and (2) the trial court should not have granted defendants’
motion for summary adjudication of the first cause of action for violation of the Brown
Act. We will therefore reverse the judgment with directions to the trial court to enter a
new order denying defendants’ motion for summary adjudication.
                            II. FACTUAL BACKGROUND
       Our factual summary is drawn from the parties’ separate statements of fact and the
evidence they submitted in connection with their motions for summary judgment.
       In early 2007, San Jose City Council member Madison Nguyen began working on
a project to designate an area on Story Road as a Vietnamese business district. The name
for the proposed Vietnamese business district was the subject of controversy in the City’s
Vietnamese-American community.

                                             2
       During the summer of 2007, Nguyen had a conversation with City Council
member Forrest Williams during a chance encounter. According to VACNORCAL,
Williams told Nguyen during that conversation that he supported her with respect to the
Vietnamese business district project. Williams and Nguyen deny that their conversation
included a discussion of the proposed Vietnamese business district.
       Sometime before November 15, 2007, Nguyen and four other members of the 11-
member City Council,2 including Mayor Chuck Reed, David Cortese, Sam Liccardo, and
Judy Chirco, agreed to support Nguyen’s proposal for the creation of a Vietnamese
business district that would be known as the Saigon Business District. At the City
Council meeting held on November 20, 2007, the City Council adopted Resolution
No. 74127, which recognized an area on Story Road as a Vietnamese retail area to be
called the Saigon Business District. The City Council’s actions at the November 20,
2007 meeting also included approval of Nguyen’s memorandum regarding the
Vietnamese business district proposal and direction to staff regarding the placement of
signage for the Saigon Business District.
       More than two months later, on January 30, 2008, VACNORCAL submitted a
letter to Mayor Reed and the City Council stating that it supported the creation of a
Vietnamese business district but opposed the name Saigon Business District.
VACNORCAL also asserted that City Council had violated the Brown Act: “The
discussion of the creation and naming of the [Saigon Business District] and the adoption
of Resolution No. 74127 violated the [Brown Act]. In particular, they violated
Government Code sections 54952.2 and 54953. [¶] Prior to the City Council meeting on
November 20, 2007, members of the City Council engaged in a series of communications
involving a majority of the members of the City Council, in an effort to develop a

       2
        On our own motion, we take judicial notice of the facts that the San Jose City
Council consists of 11 members and therefore 6 members constitutes a majority. (Evid.
Code, § 452, subd. (h); San Jose City Charter, art. III, § 401(a).)

                                             3
collective concurrence as to [the] action to be taken on the creation and naming of the
[Saigon Business District]. [¶] . . . [¶] Therefore, VACNORCAL respectfully requests
that the City take immediate action to cure and correct those violations, by rescinding
Resolution No. 74127 and taking any future actions with regard to a Vietnamese retail
area in accordance with the Brown Act.”
       At the City Council meeting held on March 4, 2008, the City Council rescinded
Resolution No. 74127. The City Council also recognized widespread support for the
name Little Saigon, approved a motion to adopt no name, and resolved that the name of
any future business district would be decided by the members of that district.
                         III. PROCEDURAL BACKGROUND
       A. The Second Amended Complaint
       The currently operative pleading is the second amended complaint (hereafter, the
complaint) filed by VACNORCAL in August 2008. In its verified complaint,
VACNORCAL describes itself as “a membership organization that represents
Vietnamese-Americans in Northern California.” Some of VACNORCAL’s members
“reside or work in . . . the area along Story Road that has been and is being considered for
designation as a Vietnamese-American destination retail business district.” The named
defendants included the City of San Jose (City), City Council, and the San Jose
Redevelopment Agency.
       In the first cause of action for injunctive and declaratory relief for violation of the
Brown Act, VACNORCAL asserted that the City and the City Council had violated the
Brown Act by obtaining the concurrence of a majority of City Council members to create
the Saigon Business District through a series of communications outside of a noticed
public meeting. Specifically, VACNORCAL alleged that “[t]he oral agreement between
Councilmembers Madison Nguyen and Forrest Williams together with the written
concurrence of four other council members as evidenced in the November 15, 2007
memo constituted the majority necessary for the City Council’s approval of Resolution

                                              4
[No.] 74127.” VACNORCAL also alleged that the Brown Act was violated by the
circulation of the November 15, 2007 memo to other members of City Council in an
attempt to obtain a concurrence of a majority of City Council members outside of a
noticed public meeting.
       Although the City Council voted during its March 4, 2008 meeting to rescind
Resolution No. 74127, VACNORCAL asserted that the City refused to acknowledge that
it had violated the Brown Act and had failed to cure and correct its violation within 30
days as required by the Brown Act.
       VACNORCAL also asserted that the City had a pattern of similar past violations
of the Brown Act, including (1) in 2002, a majority of City Council members discussed
the proposed redevelopment of the Tropicana Shopping Center prior to the City Council
meeting at which the proposal was approved; (2) in 2007, a majority of City Council
members discussed a proposal to renovate Fire Station No. 2 outside of a City Council
meeting; and (3) in 2008, the Mayor’s chief budget aide met privately with a majority of
City Council members to discuss the Mayor’s budget proposals prior to a City Council
meeting at which the proposals were discussed. VACNORCAL asserts that the City has
failed to acknowledge these Brown Act violations.
       In its second cause of action, VACNORCAL sought injunctive and declaratory
relief for defendants’ alleged violation of the California Public Records Act. A court trial
on the second cause of action was held in January 2011 and a judgment pursuant to the
trial court’s August 12, 2011 statement of decision was entered on October 11, 2011. No
issue regarding the second cause of action for violation of the California Public Records
Act is raised in the present appeal and we will not address it further.
       B. VACNORCAL’s Motion for Summary Judgment
       In December 2009, VACNORCAL brought a motion for summary judgment or, in
the alternative, summary adjudication. As to the first cause of action for injunctive and
declaratory relief for violation of the Brown Act, VACNORCAL argued that the

                                              5
undisputed facts showed that defendants had violated the open meeting provisions of the
Brown Act (§ 54950) because a majority of the City Council had engaged in serial
communications on public business outside of a public meeting.
       According to VACNORCAL, the unlawful serial communication regarding the
Vietnamese business district was comprised of two instances of communication between
City Council members: (1) the conversation between City Council members Nguyen and
Williams during their encounter in the summer of 2007, where Williams told Nguyen that
he supported her with respect to the Vietnamese business district project; and (2) the pre-
November 15, 2007 discussion and agreement between Nguyen and four different City
Council members to support Nguyen’s proposal for the creation of the Saigon Business
District. VACNORCAL asserted that as a result of these two communications, “by
November 14, 2007 six members of the City Council had discussed the Vietnamese
business district project, and had agreed to support it. As a result, when the City Council
again met as the board of the [Redevelopment Agency] to vote on the Vietnamese
business district proposal on November 20, 2007 [citation], the outcome was a foregone
conclusion. That is a violation of the Brown Act.”
       Defendants also violated the Brown Act (§ 54960.1, subds. (b), (c)) in connection
with the proposed Vietnamese business district, VACNORCAL argued, by failing to
rescind all of the actions that had been taken at the November 20, 2007 City Council
meeting within 30 days of VACNORCAL’s January 30, 2008 letter to City Council.
       VACNORCAL further argued that the undisputed facts showed that defendants
had a practice of violating the open meeting provisions of the Brown Act by engaging in
serial communications. According to VACNORCAL, the past violations included the
following: (1) before the November 28, 2000 City Council meeting, Mayor Ron
Gonzales communicated with a majority of City Council members regarding his
opposition to the Calpine power plant project, through a conversation with one City
Council member that was followed by the Mayor and four other City Council members

                                             6
signing a memorandum opposing the project; (2) before the June 25, 2002 City Council
meeting approving redevelopment of the Tropicana Shopping Center, two City Council
members had discussed the project, and three other City Council members and Mayor
Gonzales had discussed the project and agreed to support it; and (3) before the
September 25, 2007 City Council meeting, City Council member Nora Campos spoke to
Mayor Reed and another City Council member who indicated their support of the
reconstruction of Fire Station No. 2, and City Council member Nora Campos and three
other members signed a memorandum in support of the project.
       Defendants opposed VACNORCAL’s motion on the grounds that declaratory
relief is not available where, as here, the plaintiff seeks a declaration that past legislative
actions violated the Brown Act. Alternatively, defendants argued that it could not be
determined as a matter of law that the acts relied on by VACNORCAL constituted prior
Brown Act violations.
       Defendants also pointed out that there was a factual dispute as to whether the
conversation between City Council members Nguyen and Williams during their brief
encounter in the summer of 2007 actually included Williams’ statement of his support for
the Vietnamese business district proposal. Defendants further contended that the
evidence concerning the 2000 Calpine power plant project and the 2002 Tropicana
Shopping Center redevelopment was inadmissible because it was too remote in time, and
the Brown Act was not violated with respect to Fire Station No. 2 since City Council
members did not reach a collective concurrence on that project.
       Additionally, defendants argued that the alleged Brown Act violations were
insufficient to constitute a pattern or practice of improper serial communications by City
Council and there was no evidence of ongoing violations of the Brown Act.
       C. City’s Motion for Summary Judgment
       Defendants filed a competing motion for summary judgment or, in the alternative,
summary adjudication in December 2009. Their argument that the first cause of action

                                               7
for injunctive and declaratory relief for Brown Act violations lacked merit as a matter of
law was similar to the argument they had made in opposition to VACNORCAL’s motion
for summary adjudication.
       Defendants argued that section 54960 does not authorize a determination of
whether past legislative acts constituted Brown Act violations. Although defendants
recognized that section 54960 allowed the court to enjoin a present or threatened Brown
Act violation, defendants argued there was no evidence that any action by defendants
constituted a present or threatened violation. They explained that VACNORCAL’s
allegations of past Brown Act violations were insufficient because the allegations
concerned “isolated incidents of past acts” that were unrelated to any “specific ongoing
City policies or practices.” According to defendants, “VACNORCAL simply alleges that
in isolated instances, certain Councilmembers, or in one case a mayoral staff member,
engaged in past conduct that purportedly violated the Brown Act.”
       In opposition to defendants’ motion for summary judgment, VACNORCAL
argued that the language of section 54960 is properly construed to permit an action based
upon past Brown Act violations. VACNORCAL also argued that past Brown Act
violations can support a claim for injunctive relief because there is a presumption that
illegal acts will continue where, as here, the defendant has refused to admit its Brown Act
violations.
       D. The Trial Court’s Order
       In its February 16, 2010 order, the trial court denied VACNORCAL’s motion for
summary adjudication of the first cause of action and granted defendants’ motion for
summary adjudication of the first cause of action.
       In so ruling, the trial court determined that “[t]he [second amended complaint]
alleges and City Council demonstrates that City Council’s alleged use of a series of
communications to deliberate on an item of business within the subject matter jurisdiction
of the City Council was cured by its rescinding of Resolution No. 74127 on March 4,

                                             8
2008. The [second amended complaint] does not allege—and [VACNORCAL] did not
request City Council to cure—any other past violation of the Brown Act that occurred
prior to the March 4, 2008 meeting. The Brown Act does not require . . . a party to
publicly admit to any violation. The City’s failure to cure its violation within 30 days is a
‘one-time past offense’ that is unrelated to a present or future violation. [VACNORCAL]
has not clearly demonstrated that City and City Council have committed past actions and
violations that are related to present or future ones, or that City and City Council’s
alleged violations are likely to recur. Accordingly, [VACNORCAL] is not entitled to
injunctive or declaratory relief pursuant to [section] 54960, subdivision (a). [Citations.]”
       Pursuant to the trial court’s February 16, 2010 order, the October 11, 2011
judgment included the entry of judgment in defendant’s favor on the first cause of action
for violation of the Brown Act. VACNORCAL filed a timely notice of appeal from the
judgment.
                                        IV. DISCUSSION
       On appeal, VACNORCAL argues that the trial court erred in (1) denying its
motion for summary adjudication of the first cause of action for injunctive and
declaratory relief for violation of the Brown Act, and (2) granting defendants’ motion for
summary adjudication of the first cause of action. Before addressing VACNORCAL’s
contentions, we will outline the standard of review for an order granting a motion for
summary judgment or summary adjudication.
       A. The Standard of Review
       The standard of review for an order granting a motion for summary judgment is
de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The
trial court’s stated reasons for granting summary judgment are not binding on the
reviewing court, “which reviews the trial court’s ruling, not its rationale. [Citation.]”
(Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)



                                              9
       In performing our independent review, we apply the same three-step process as the
trial court. “Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).) “We then examine the moving party’s motion, including the evidence offered
in support of the motion.” (Baptist, supra, 143 Cal.App.4th at p. 159.) “Summary
judgment is proper if all the papers submitted show that there is no issue requiring a trial
as to any fact that is necessary under the pleadings. [Citations.] In such a case the
moving party is entitled to judgment as a matter of law. [Citation.]” (Ibid.)
       A plaintiff moving for summary judgment “bears the burden of persuasion that
‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that
‘there is no defense’ thereto. [Citation.]” (Aguilar, supra, 25 Cal.4th at p. 850; Code
Civ. Proc. § 437c, subd. (p)(1).) “Once the plaintiff . . . has met that burden, the burden
shifts to the defendant . . . to show that a triable issue of one or more material facts exists
as to that cause of action or a defense thereto. The defendant . . . may not rely upon the
mere allegations or denials of its pleadings to show that a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c,
subd. (p)(1).)
       A defendant moving for summary judgment has the initial burden of showing that
a cause of action lacks merit because one or more elements of the cause of action cannot
be established or there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make
this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the
motion must be denied. However, if the moving papers make a prima facie showing that
justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a



                                              10
prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
       In determining whether the parties have met their respective burdens, “the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn
therefrom [citation], and must view such evidence [citations] and such inferences
[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th
at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof.” (Id. at p. 850,
fn. omitted.) Thus, a party “ ‘cannot avoid summary judgment by asserting facts based
on mere speculation and conjecture, but instead must produce admissible evidence raising
a triable issue of fact. [Citation.]’ [Citation.]” (Dollinger DeAnza Associates v. Chicago
Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
       We next turn to an overview of the pertinent provisions of the Brown Act.
       B. The Brown Act
       The Brown Act expressly provides that it is the intent of the Act that the actions of
local legislative bodies “be taken openly and that their deliberations be conducted
openly.” (§ 54950.) The meetings of local legislative bodies are addressed in
section 54953, subdivision (a) which states: “All 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.”
       Thus, as this court has stated, the Brown Act “provides for open meetings for local
legislative bodies such as city councils, boards of supervisors and school boards.
(§ 54952, subd. (a).) With certain specific exceptions where government has
demonstrated a need for confidentiality [citations], the Act has been interpreted to mean



                                             11
that all of the deliberative processes by legislative bodies must be open and available for
public scrutiny.” (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1287 (Ingram).)
       During the time period relevant to this case (2000-2007), the Brown Act
“prohibit[ed] the use of ‘direct communication, personal intermediaries, or technological
devices’ employed by a majority of members ‘to develop a collective concurrence as to
action to be taken on an item.’ ([former] § 54952.2, subd. (b)[3].) The Brown Act
define[ed] ‘action taken’ as ‘a collective decision made by a majority of the members of a
legislative body, a collective commitment or promise by a majority of the members of a
legislative body to make a positive or a negative decision, or an actual vote by a majority
of the members of a legislative body when sitting as a body or entity, upon a motion,
proposal, resolution, order or ordinance.’ (§ 54952.6.)” (Regents of University of
California v. Superior Court (1999) 20 Cal.4th 509, 539-540 (Regents), italics added.)
       “To assist in enforcement of the open meeting laws, the Act provides for criminal
penalties and civil injunctive or declaratory relief. (§§ 54959, [former] 54960.)”
(Ingram, supra, 74 Cal.App.4th at p. 1287.) Former section 54960, subdivision (a)
provided in pertinent part: “The district attorney or any interested person may commence
an action by mandamus, injunction or declaratory relief for the purpose of stopping or
preventing violations or threatened violations . . . by members of the legislative body . . .
or to determine the applicability of [the Act] to actions or threatened future action of the
legislative body. . . .”


       3
          Section 54952.2 was revised in 2008 in accordance with the Legislature’s
disapproval of the holding in Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533, 545,
fn. 6 “to the extent that it construes the prohibition against serial meetings by a legislative
body of a local agency, as contained in the Ralph M. Brown Act (Chapter 9 (commencing
with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code, to require
that a series of individual meetings by members of a body actually result in a collective
concurrence to violate the prohibition rather than also including the process of developing
a collective concurrence as a violation of the prohibition.” (Stats.2008, ch. 63, § 1.)


                                              12
       C. VACNORCAL’s Motion for Summary Adjudication
              1. The Parties’ Contentions
       We understand VACNORCAL to contend on appeal that its motion for summary
adjudication of the first cause of action for injunctive and declaratory relief should have
been granted. According to VACNORCAL, it is entitled to declaratory relief because
there is an actual, present controversy as to whether a violation of the Brown Act has
occurred with respect to the Vietnamese business district project, since the City has
denied that a violation occurred and has defended this lawsuit. VACNORCAL also
contends that it is entitled to injunctive relief as a matter of law because “future violations
are likely based on the City’s refusal to admit that its behavior constituted a Brown Act
violation” and it has “clearly alleged that a pattern and practice of Brown Act violations
exists within the City.”
       Defendants respond that summary adjudication of the cause of action for
declaratory relief was properly denied because VACNORCAL failed to prove that
defendants had violated the open meeting provisions of the Brown Act with respect to the
Vietnamese business district project, since there is a triable issue of fact as to whether
Councilmember Williams expressed support for the Vietnamese business district project
during his brief encounter with Councilmember Nguyen prior to the November 20, 2007
City Council vote on the project.
       Defendants further argue, relying on the decision in Shapiro v. San Diego City
Council (2002) 96 Cal.App.4th 904 (Shapiro), that VACNORCAL failed to prove with
undisputed facts that a series of past violations of the Brown Act’s opening meeting
provisions had occurred that are related to present or future Brown Act violations or that
showed on ongoing procedure, and therefore declaratory relief is not warranted.
              2. Declaratory Relief
       “ ‘The fundamental basis of declaratory relief is the existence of an actual, present
controversy over a proper subject.’ [Citation.]” (City of Cotati v. Cashman (2002)

                                              13
29 Cal.4th 69, 79; Code Civ. Proc., § 1060.) Thus, “ ‘[d]eclaratory relief operates
prospectively to declare future rights, rather than to redress past wrongs. [Citation.]’
[Citations.]” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580,
607.) The Brown Act provides that an action for declaratory relief may be brought to,
among other things, “determine the applicability of this chapter to actions or threatened
future action of the legislative body. . . .” (§ 54960, subd. (a).)
       A cause of action for declaratory relief may be summarily adjudicated. “If
justiciable issues are presented which can be disposed of as a matter of law, they should
be resolved by summary judgment with an express declaration of the rights of the parties.
[Citations.]” (City of Tiburon v. Northwestern Pac. R. R. Co. (1970) 4 Cal.App.3d 160,
172, fn. 5 (City of Tiburon).)
       The parties disagree as to whether declaratory relief is available under the Brown
Act with regard to a past violation. VACNORCAL relies on the decisions in California
Alliance for Utility Etc. Education v. City of San Diego (1997) 56 Cal.App.4th 1024 and
Frazer v. Dixon Unified School Dist. (1993) 18 Cal.App.4th 781 in arguing that it is
sufficient to allege that a past violation of the Brown Act has occurred. Defendants reject
this contention on the ground that the California Supreme Court in Regents, supra,
20 Cal.4th at p. 526 construed language in section 11130, subdivision (a) that was
identical to language in former section 54960, subdivision (a), and determined that the
statute provided a right of action under the Bagley–Keene Open Meeting Act (§ 11120 et
seq.) only as to present and future violations, and not past violations.
       We need not decide the issue, however.4 Even assuming that past Brown Act
violations are properly the subject of an action for declaratory relief under former section


       4
         The Legislature amended section 54960, effective January 1, 2013, to expressly
provide that declaratory and injunctive relief may be sought “to determine the
applicability of this chapter to past actions of the legislative body . . . .” (Stats.2012,
ch. 732, § 1.)

                                              14
54960, subdivision (a), we determine that summary adjudication is precluded in this case
because VACNORCAL has not met its burden to show as a matter of law, based on the
undisputed facts, that there is a present, justiciable controversy under the Brown Act.
(See City of Tiburon, supra, 4 Cal.App.3d at p. 172.)
       To the contrary, VACNORCAL’s motion for summary adjudication shows that
the present controversy in this case is a factual dispute. The parties dispute whether a
majority of City Council members reached a collective concurrence approving the
Vietnamese business district project prior to the November 20, 2007 City Council
meeting, in violation of former section 54952.2, subdivision (b), which “prohibit[ed] the
use of ‘direct communication, personal intermediaries, or technological devices’
employed by a majority of members ‘to develop a collective concurrence as to action to
be taken on an item.’ ” (Regents, supra, 20 Cal.4th at pp. 539-540, italics added.)
       The dispute has arisen due to the underlying factual dispute regarding whether the
conversation between Councilmembers Nguyen and Williams during their chance
encounter in the summer of 2007 included Williams’ express support of the Vietnamese
business district project. Due to that factual dispute, VACNORCAL has not shown as a
matter of law that a total of six City Council members—a majority—developed a
collective concurrence approving the Vietnamese business district project in violation of
former section 54952.2, subdivision (b).
       Moreover, it is undisputed that the City Council rescinded Resolution No. 74127
approving the creation of a Vietnamese business district to be named the Saigon Business
district. There is no evidence that defendants deny that in 2007 a Brown Act violation
under former section 54952.2, subdivision (b) would have occurred if a majority of
council members had reached a collective concurrence approving the Vietnamese
business district project as alleged by VACNORCAL.
       Accordingly, since the court does not resolve factual disputes on a motion for
summary adjudication (Code Civ. Proc., § 437c, subd. (c)), there is no justiciable

                                            15
controversy that may be resolved as a matter of law regarding whether City Council
members’ communications regarding the creation of the Vietnamese business district
violated former section 54952.2, subdivision (b) of the Brown Act.
       Similarly, we cannot determine as a matter of law on this record that defendants
have a pattern and practice of violating the Brown Act, based on City Council members’
communications regarding the Calpine project in 2000, the Tropicana Shopping Center
project in 2002, or the Fire Station No. 2 project in 2007, that warrants declaratory relief
under section 54960, subdivision (a). Even assuming, without deciding, that declaratory
relief is available where a pattern and practice of violating the Brown Act is alleged, there
is no justiciable controversy in this case that can be disposed of as a matter of law
because the actual, present controversy is a factual dispute regarding the communications
between City Council members about those three projects.
       Finally, we determine that VACNORCAL has not shown, as a matter of law, that
declaratory relief is warranted because defendants failed to respond to VACNORCAL’s
January 30, 2008 letter to the Mayor and City Council, which demanded that they cure or
correct a Brown Act violation concerning the vote to approve the Saigon Business
District by rescinding Resolution No. 74127, within 30 days as required by section
54960.1.
       Section 54960.1, subdivision (c)(2) and (3) provide: “Within 30 days of receipt of
the demand, the legislative body shall cure or correct the challenged action and inform
the demanding party in writing of its actions to cure or correct or inform the demanding
party in writing of its decision not to cure or correct the challenged action. [¶] If the
legislative body takes no action within the 30-day period, the inaction shall be deemed a
decision not to cure or correct the challenged action, and the 15-day period to commence
the action described in subdivision (a) shall commence to run the day after the 30-day
period to cure or correct expires.”



                                             16
       Here, it is undisputed that defendants cured or corrected the alleged Brown Act
violation as requested by rescinding Resolution No. 74127 on March 4, 2008, which was
more than 30 days after VACNORCAL’s January 30, 2008 demand letter.
VACNORCAL has not shown that defendants dispute the applicability of section
54960.1, subdivision (c)(1) to its actions.
       Accordingly, VACNORCAL has not shown as a matter of law that there is an
actual, present controversy regarding the timeliness of defendants’ cure or correct actions
that warrants declaratory relief under section 54960.
              3. Injunctive Relief
       VACNORCAL contends that injunctive relief should have been granted because
“future violations are likely based on the City’s refusal to admit that its behavior
constituted a Brown Act violation” and because it has “clearly alleged that a pattern and
practice of Brown Act violations exists within the City.”
       Defendants maintain that summary adjudication was properly denied because
VACNORCAL “has not proved with undisputed facts any violation of the open meeting
provisions of the Brown Act, let alone a series of violations related to an ‘ongoing
procedure,’ as is required to support declaratory or injunctive relief under [s]ection
[54960].” We agree.
       Former section 54960, subdivision (a) provided that injunctive relief was available
“ ‘for the purpose of stopping or preventing violations or threatened violations of’ ” the
Brown Act. Additionally, it has been held that “the Brown Act authorizes injunctive
relief that is based on, in relevant part, a showing of ‘past actions and violations that are
related to present or future ones,’ ” and therefore the trial court may enjoin “future such
actions and violations.” (Shapiro, supra, 96 Cal.App.4th at p. 917.)
       As we have discussed, VACNORCAL has not shown that as a matter of law,
based on undisputed facts, that defendants committed past Brown Act violations under
former section 54952.2, subdivision (b), which “prohibit[ed] the use of ‘direct

                                              17
communication, personal intermediaries, or technological devices’ employed by a
majority of members ‘to develop a collective concurrence as to action to be taken on an
item.’ ” (Italics added.) Consequently, we also determine that VACNORCAL has not
shown that as a matter of law, based on undisputed facts, that injunctive relief is
warranted because there are ongoing Brown Act violations or that future Brown Act
violations are threatened due to defendants’ past Brown Act violations.
       For these reasons, we conclude that the trial court did not err in denying
VACNORCAL’s motion for summary adjudication of the first cause of action for
injunctive and declaratory relief for violation of the Brown Act.
       D. Defendants’ Motion for Summary Adjudication
       VACNORCAL argues that the trial court erred in granting defendants’ motion for
summary adjudication of the first cause of action for injunctive and declaratory relief for
violation of the Brown Act by ruling that since VACNORCAL’s motion for summary
adjudication was denied, defendant’s motion must be granted.
       Defendants do not provide a separate argument in support of the trial court’s order,
asserting only that “even when the evidence is viewed in a light most favorable to
[VACNORCAL], it is insufficient to support [VACNORCAL’s] claim. The Superior
Court properly granted summary judgment in favor of [defendants] on [VACNORCAL’s]
Brown Act cause of action.”
       Having independently reviewed defendants’ motion for summary adjudication, for
reasons that we will explain we determine that defendants did not meet their initial
burden to show that one or more elements of the Brown Act cause of action cannot be
established or there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.)
       Defendants’ separate statement of undisputed facts in support of its motion
consists in its entirety of the following: “1. VACNORCAL supports its position that the
City has a pattern of similar past violations of the Brown Act by citing to the private

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meetings by the Mayor’s budget aide with members of the Council prior to a Council
meeting on February 12, 2008. [¶] 2. VACNORCAL supports its position that the City
has a pattern of similar past violations of the Brown Act by citing to the City’s vote on
the naming of the Vietnamese business district on November 20, 2007. [¶]
3. VACNORCAL supports its position that the City has a pattern of similar past
violations of the Brown Act by citing to the City’s vote on whether to renovate Fire
Station 2 on September 25, 2007. [¶] 4. VACNORCAL supports its position that the
City has a pattern of similar past violations of the Brown Act by citing to the City’s vote
to redevelop the Tropicana Shopping Center in June 2002. [¶] 5. None of the past
actions cited by VACNORCAL to support its position that the City Council has
committed Brown Act violations in the past are related to any present or future actions of
the City Council.”
       In its response, VACNORCAL agreed that statement nos. 1 through 4 in
defendants’ separate statement were undisputed. However, VACNORCAL disputed
statement no. 5 on the grounds that it was a legal conclusion, not a statement of fact, and
the evidence offered by defendants did not support it.
       We find that defendants’ separate statement of undisputed facts and supporting
evidence were insufficient to meet its burden on summary adjudication. The California
Supreme Court instructed in Kahn v. East Side Union High School Dist. (2003)
31 Cal.4th 990 (Kahn) that “[w]hen the defendant moves for summary judgment, in those
circumstances in which the plaintiff would have the burden of proof by a preponderance
of the evidence, the defendant must present evidence that would preclude a reasonable
trier of fact from finding that it was more likely than not that the material fact was true
[citation], or the defendant must establish that an element of the claim cannot be
established, by presenting evidence that the plaintiff ‘does not possess and cannot
reasonably obtain, needed evidence.’ [Citation.]” (Id. at p. 1003.)



                                             19
          Here, defendants did not present any evidence to show that VACNORCAL does
not possess, and cannot reasonably obtain, evidence that the past actions “cited” by
VACNORCAL “support its position that the City Council has committed Brown Act
violations in the past [that] are related to any present or future actions of the City
Council.” The only evidence submitted by defendants in support of this statement
(statement no. 5) was VACNORCAL’s response to defendants’ special interrogatory no.
23. However, VACNORCAL’s answer to interrogatory no. 23 states, among other
things, that “[d]efendants have violated the Brown Act numerous times in the past by
obtaining a concurrence of a majority of the San Jose City Council outside of any noticed
public meeting.” VACNORCAL’s answer also references the factual allegations in its
verified complaint that communications had taken place between a majority of City
Council members that constituted a concurrence regarding approval of the Vietnamese
business district.
          Thus, VACNORCAL’s answer to special interrogatory no. 23 asserted that City
Council members had continued to violate the Brown Act (former § 54952.2, subd. (b))
because on several occasions a majority of City Council members had engaged in serial
communications in which a collective concurrence was obtained. Since defendants
depended on VACNORCAL’s answer to special interrogatory no. 23 in moving for
summary adjudication, we determine that defendants’ motion did not provide evidence to
show that the first cause of action for Brown Act violations lacks merit as a matter of law.
(See Kahn, supra, 31 Cal.4th at p. 1003.)
          Consequently, because defendants did not meet their initial burden on summary
adjudication to show that the first cause of action for violation of the Brown Act lacked
merit as a matter of law (Aguilar, supra, 25 Cal.4th at p. 850), we conclude that the trial
court erred in granting defendants’ motion for summary adjudication of that cause of
action.



                                              20
       E. Conclusion
       We conclude that the trial court did not err in denying VACNORCAL’s motion
for summary adjudication of the first cause of action for violation of the Brown Act, since
there are triable questions of material fact regarding the actions of City Council members
that VACNORCAL alleges constitute Brown Act violations. We also conclude that the
trial court should not have granted defendants’ motion for summary adjudication of the
first cause of action because defendants did not meet their initial burden to show as a
matter of law that the first cause of action lacks merit. We will therefore reverse the
judgment with directions to the trial court to enter a new order denying defendants’
motion for summary adjudication.
                                    V. DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court with
directions to vacate its February 16, 2010 order granting summary adjudication of the
first cause of action for violation of the Brown Act and to enter a new order denying
summary adjudication of the first cause of action. The parties shall bear their own costs
on appeal.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.
