Filed 5/31/16
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



CENTER FOR LOCAL GOVERNMENT                      D068432
ACCOUNTABILITY,

        Plaintiff and Appellant,
                                                 (Super. Ct. No. 37-2014-00030567-
        v.                                       CU-JR-CTL)

CITY OF SAN DIEGO et al.,

        Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of San Diego County,

Gregory W. Pollack, Judge. Reversed and remanded with directions.



        Law Office of Craig A. Sherman and Craig A. Sherman for Plaintiff and

Appellant.

        Jan I. Goldsmith, City Attorney, and Walter C. Chung, Deputy City Attorney for

Defendants and Respondents.
                                    INTRODUCTION

       The Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.),1 governs the

conduct of local legislative bodies and imposes upon them various obligations, including

giving prior notice of meetings and making the meetings open to the public. (Regents of

University of California v. Superior Court (1999) 20 Cal.4th 509, 520, fn. 5.) To these

ends, section 54954.3, subdivision (a), of the Brown Act requires the agenda of every

regular meeting of a local legislative body to include an opportunity for members of the

public to address the legislative body on matters within its purview, but not otherwise on

its agenda for action.2 For purposes of this appeal, we refer to this opportunity as a

nonagenda public comment period.

       As one mechanism for ensuring compliance with the Brown Act, section 54960,

subdivision (a), authorizes an interested person to commence a lawsuit by mandamus,

injunction or declaratory relief to determine the applicability of the Brown Act "to

ongoing actions or threatened future actions of the legislative body, or to determine the

applicability of [the Brown Act] to past actions of the legislative body, subject to Section

54960.2." (Italics added.) Section 54960.2 establishes several preconditions to filing a



1       Further statutory references are also to the Government Code unless otherwise
stated.

2       Section 54954.3 provides: "Every agenda for regular meetings shall provide an
opportunity for members of the public to directly address the legislative body on any item
of interest to the public, before or during the legislative body's consideration of the item,
that is within the subject matter jurisdiction of the legislative body, provided that no
action shall be taken on any item not appearing on the agenda unless the action is
otherwise authorized by subdivision (b) of Section 54954.2."
                                             2
lawsuit under section 54960, subdivision (a), including submission of a cease and desist

letter to the offending legislative body. (§ 54960.2, subd. (a)(1).)

       The City of San Diego and its city council (City) are subject to the Brown Act,

including section 54954.3. (§§ 54951, 54952, subd. (a).) The Center for Local

Government Accountability (Center) filed this litigation to determine whether the City's

adherence to a long-standing ordinance providing for only one nonagenda public

comment period over the course of its two-day regular weekly meetings violated section

54954.3. The trial court dismissed the Center's complaint after sustaining the City's

demurrer to it without leave to amend. The Center appeals.

       To resolve the Center's appeal, we must decide three questions. First, we must

decide whether the qualifying phrase "subject to Section 54960.2" in section 54960,

subdivision (a), applies only to litigation to determine the Brown Act's applicability to

past actions or also to litigation to determine the Brown Act's applicability to ongoing or

threatened future actions. We must further decide whether the City's continued

adherence to a long-standing ordinance providing for one nonagenda public comment

period over the course of its two-day regular weekly meetings constitutes a past action or

an ongoing or threatened future action. Finally, we must decide whether the City's

postlitigation adoption of an ordinance providing for a nonagenda public comment period

on each day of its two-day regular weekly meetings moots this litigation.

       We conclude the qualifying phrase "subject to Section 54960.2" in section 54960,

subdivision (a), applies only to litigation to determine the Brown Act's applicability to

past actions. In addition, we conclude the City's continued adherence to a long-standing

                                              3
ordinance providing for one nonagenda public comment period over the course of its

two-day regular weekly meetings constitutes an ongoing or threatened future action, not a

past action. Finally, we conclude the City's postlitigation adoption of an ordinance

providing for a nonagenda public comment period on each day of its two-day regular

weekly meetings may moot this action if there is no reasonable expectation the City will

adopt another ordinance resuming its former practice. Nonetheless, as explained below,

there is a reasonable possibility the Center can amend its complaint to at least state a

viable claim for declaratory relief. Consequently, we conclude the court erred in

sustaining the City's demurrer without leave to amend and dismissing this action. We,

therefore, reverse the judgment and remand the matter for further proceedings.

                                     BACKGROUND

       Except during scheduled recesses, the City holds regular weekly meetings on

Mondays and Tuesdays. In 2001, the City adopted an ordinance providing for the

publication of one consolidated agenda each week with one nonagenda public comment

period docketed for Tuesday mornings. Consistent with this ordinance, at the time the

Center filed this litigation, the City's regular weekly meeting agendas provided for one

nonagenda public comment period on Tuesdays.

       In 2014, the Center filed a combined petition for writ of mandate and complaint

for declaratory and injunctive relief (complaint), alleging the City's continued failure to

provide a nonagenda public comment period on Mondays violated section 54954.3,

subdivision (a). The complaint sought a judicial declaration the practice was unlawful.

The complaint also sought an injunction and peremptory writ of mandate directing the

                                              4
City to provide a nonagenda public comment period during any regular meeting with a

separate agenda, including its Monday meetings.

       The City demurred to the Center's complaint, arguing the complaint was not ripe

for adjudication because the Center did not comply with the preconditions in section

54960.2. The City also argued the complaint was moot because the City had since

adopted an ordinance providing for nonagenda public comment periods on both Mondays

and Tuesdays.

       The court sustained the demurrer without leave to amend on the ground the Center

failed to comply with the preconditions in section 54960.2 before filing its complaint.

The court found the preconditions applied not just to litigation alleging past Brown Act

violations, but also to litigation alleging threatened future violations. In addition, the

court questioned whether the Center's complaint actually challenged a threatened future

action rather than the consequences of a past action. Regardless, the court found the

Center's complaint became moot after the City adopted the ordinance providing for

nonagenda public comment periods on both Mondays and Tuesdays. The court

subsequently entered an order dismissing the complaint.

                                       DISCUSSION

       Our review in this appeal is de novo, both because the appeal is from a judgment

of dismissal after the court sustained a demurrer without leave to amend and because

resolution of the appeal requires us to interpret a statute. (Audio Visual Services Group,

Inc. v. Superior Court (2015) 233 Cal.App.4th 481, 489; Luther v. Countrywide

Financial Corp. (2011) 195 Cal.App.4th 789, 793.) "For purposes of our review, we

                                              5
treat the demurrer as admitting all material facts properly pleaded, but not contentions,

deductions, or conclusions of fact or law. [Citations.] We also consider matters that may

be judicially noticed." (Audio Visual Services Group, Inc. v. Superior Court, supra, at

p. 489, fn. 5.)

                                              I

                                             A

       Section 54960, subdivision (a), provides in relevant part: "[A]ny interested person

may commence an action by mandamus, injunction, or declaratory relief … to determine

the applicability of [the Brown Act] to ongoing actions or threatened future actions of the

legislative body, or to determine the applicability of [the Brown Act] to past actions of

the legislative body, subject to Section 54960.2." (Italics added.) The City contends the

Legislature intended the qualifying phrase "subject to Section 54960.2" to apply both to

litigation to determine the Brown Act's applicability "to ongoing actions or threatened

future actions" as well as to litigation to determine the Brown Act's applicability "to past

actions." Conversely, the Center contends the Legislature intended the qualifying phrase

to apply only to litigation to determine the Brown Act's applicability to past actions.

       The parties support their respective positions with complex arguments regarding

the last antecedent rule and certain exceptions to it. "A longstanding rule of statutory

construction—the 'last antecedent rule'—provides that 'qualifying words, phrases and

clauses are to be applied to the words or phrases immediately preceding and are not to be

construed as extending to or including others more remote.' " (White v. County of

Sacramento (1982) 31 Cal.3d 676, 680.) The "rule 'is not an absolute and can assuredly

                                              6
be overcome by other indicia of meaning.' " (State ex rel. Bartlett v. Miller (2016) 243

Cal.App.4th 1398, 1409.) For instance, as the City points out, the qualifying phrase's

separation from the antecedents by a comma is evidence the qualifying phrase applies to

all antecedents. (White v. County of Sacramento, supra, at p. 680.) However, as the

Center points out, the antecedents' separation by the disjunctive "or" is evidence the

antecedents should be treated distinctly. (See ibid.; California School Employees Assn. v.

Governing Bd. of South Orange County Community College Dist. (2004) 124

Cal.App.4th 574, 584-585.)

       Except to note the identified ambiguity in section 54960, subdivision (a), we need

not address the intricacies of the parties' arguments on this point because they are not

dispositive. "The rules of grammar and canons of construction are but tools, 'guides to

help courts determine likely legislative intent. [Citations.] And that intent is critical.

Those who write statutes seek to solve human problems. Fidelity to their aims requires

us to approach an interpretive problem not as if it were a purely logical game, like a

Rubik's Cube, but as an effort to divine the human intent that underlies the statute.' "

(Burris v. Superior Court (2005) 34 Cal.4th 1012, 1017-1018.)

                                              B

       In reviewing questions of statutory interpretation, " ' "our fundamental task is 'to

ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' … We

begin by examining the statutory language because it generally is the most reliable

indicator of legislative intent. We give the language its usual and ordinary meaning, and

'[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the

                                              7
plain meaning of the language governs.' … If, however, the statutory language is

ambiguous, 'we may resort to extrinsic sources, including the ostensible objects to be

achieved and the legislative history.' … Ultimately we choose the construction that

comports most closely with the apparent intent of the lawmakers, with a view to

promoting rather than defeating the general purpose of the statute." ' " (Lee v. Hanley

(2015) 61 Cal.4th 1225, 1232-1233.)

       In interpreting the meaning of the qualifying phrase "subject to Section 54960.2,"

we first consider the language of section 54960.2 itself. We do this because section

54960.2 was added to the Brown Act at the same time as the qualifying phrase (Stats.

2012, ch. 732, §§ 1-2) and because "[w]e are required to harmonize the various parts of a

statutory enactment by considering the particular section in the context of the statutory

framework as a whole." (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189.)

       Section 54960.2, subdivision (a), states in relevant part: "[A]ny interested person

may file an action to determine the applicability of this chapter to past actions of the

legislative body pursuant to subdivision (a) of Section 54960 only if all of the following

conditions are met: [¶] (1) The … interested person … first submits a cease and desist

letter … to the clerk or secretary of the legislative body being accused of the violation …

clearly describing the past action of the legislative body and nature of the alleged

violation."3 (Italics added.)



3      The purpose of the cease and desist letter is to allow the legislative body an
opportunity to avoid unnecessary litigation by unconditionally committing to not
repeating the past action without admitting a Brown Act violation. (§ 54960.2, subd. (c).)
                                              8
       The italicized language, which is peppered throughout section 54960.2,

unambiguously limits the applicability of section 54960.2's preconditions to litigation

challenging past actions. This limitation and our obligation to harmonize the various

parts of a statutory enactment effectively precludes the interpretation of the qualifying

phrase the City advocates. Rather, it compels an interpretation mandating compliance

with the preconditions in section 54960.2 only for litigation to determine the Brown Act's

applicability to past actions of a legislative body.

                                              C

                                               1

       The legislative history of the qualifying phrase and section 54960.2 supports this

interpretation. Both the qualifying phrase and section 54960.2 were added to the Brown

Act in 2012 by Senate Bill No. 1003 (SB 1003). (Stats. 2012, ch. 732, §§ 1-2.) The

Legislative Counsel's Digest summarized SB 1003's import as follows: "Existing law

authorizes … any interested person to file an action by mandamus, injunction, or

declaratory relief to, among other things, determine the applicability of the [Brown Act]

to actions or threatened future actions of the legislative body. [¶] This bill would prohibit

… an interested person from filing an action for an alleged violation of the Brown Act for

past actions of a legislative body, unless certain conditions are met, including, but not

limited to, a requirement that the … interested person submit a cease and desist letter to

the legislative body." (Legis. Counsel's Dig., Sen. Bill No. 1003 (2011-2012 Reg. Sess.)

Summary Dig., italics added.)



                                               9
       " 'The Legislative Counsel's Digest is printed as a preface to every bill considered

by the Legislature.' [Citation.] The Legislative Counsel's summaries 'are prepared to

assist the Legislature in its consideration of pending legislation.' " (Jones v. Lodge at

Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1169.) Therefore, it reasonable to

presume the Legislature enacted the legislation with the intent and meaning expressed in

the Legislative Counsel's Digest. (Id. at p. 1170; California Teachers Assn. v. Governing

Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 660-661.)

       "Although the Legislative Counsel's summaries are not binding [citation], they are

entitled to great weight." (Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th

at p. 1170.) Here, the italicized language in the Legislative Counsel's Digest fully

supports a conclusion the Legislature intended the preconditions in section 54960.2 to

apply only to litigation to determine the Brown Act's applicability to past actions of a

legislative body.

                                              2

       SB 1003's evolution from its introduction to its passage further supports this

conclusion. When the bill was first introduced, it simply amended section 54960,

subdivision (a), to supersede an unpublished appellate court opinion and extend the

statute's application to past actions of a legislative body as well as to current or threatened

future actions. (Sen. Bill No. 1003 (2011-2012 Reg. Sess.) §§ 1-2, as introduced Feb. 6,

2012.) Two months later the bill was amended to add section 54960.2 with its

preconditions to litigation. At that time, section 54960.2 did not include language

limiting compliance with the preconditions to litigation involving past actions. Instead, it

                                              10
precluded any litigation under section 54960, subdivision (a), without compliance with

the preconditions. (Sen. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) Apr. 11,

2012.) The language in section 54960.2 limiting compliance with the preconditions to

past actions did not appear until a month later when the bill was amended for a second

time. (Sen. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) May 3, 2012.) The

limiting language remained in section 54960.2 from that point forward. (Assem. Amend.

to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) June 19, 2012; Assem. Amend. to Sen. Bill

No. 1003 (2011-2012 Reg. Sess.) Aug. 13, 2012; Sen. Bill No. 1003 (2011-2012 Reg.

Sess.) as enrolled Aug. 23, 2012.)

       Importantly, the Legislature did not add the qualifying phrase to SB 1003 until

after it added the language limiting section 54960.2's preconditions to litigation involving

past actions. (Assem. Amend. to Sen. Bill No. 1003 (2011-2012 Reg. Sess.) June 19,

2012.) This timing dispels any notion the Legislature ever intended for the qualifying

phrase to be interpreted in the manner the City advocates.

                                             3

       Other legislative history documents also support this conclusion. Specifically, the

last Senate analysis of SB 1003 before its passage described the bill's import as follows:

"This bill: [¶] 1. Authorizes … any interested person to file an action, as specified, to

determine the applicability of the Brown Act to a past or ongoing action of a legislative

body. [¶] 2. Prohibits any action to be filed by a[n] … interested person to determine the

applicability of the Brown Act to past actions of a legislative body unless all of the

following requirements are met: [¶] A. The plaintiff submits a cease and desist letter to

                                             11
the legislative body, clearly describing the past action and the nature of the alleged

violation." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No.

1003 (2011-2012 Reg. Sess.), as amended Aug. 13, 2012, p. 2.) Indeed, the same

description of the bill's import appeared in every legislative analysis prepared after the

Legislature added the qualifying phrase to the bill. (See, e.g., Assem. Com. on Local

Gov., Analysis of Sen. Bill No. 1003 (2011-2012 Reg. Sess.) as amended June 19, 2012,

p. 1; Assem. Floor Analysis, 3d reading analysis of Sen. Bill No. 1003 (2011-2012 Reg.

Sess.) as amended June 19, 2012, p. 1; Assem. Floor Analysis, 3d reading analysis of

Sen. Bill No. 1003 (2011-2012 Reg. Sess.) as amended Aug. 13, 2012, p. 1.)

Accordingly, the only reasonable interpretation we may give to the qualifying phrase is

that it requires compliance with the preconditions in section 54960.2 before the filing of

litigation to determine the Brown Act's applicability to past actions, but it does not

require such compliance before the filing of litigation to determine the Brown Act's

applicability to ongoing or threatened future actions.

                                              II

       Nevertheless, the City contends the Center was required to comply with the

preconditions in section 54960.2 because the Center's complaint did not challenge an

ongoing or threatened future action. Rather, it challenged the City's past action of

adopting an ordinance providing for only one nonagenda public comment period over the

course of its two-day regular weekly meetings.

       We are unpersuaded by this contention because the adoption of the ordinance did

not have a one-time or determinate effect. Instead, the ordinance's effect extended to

                                             12
every regular weekly meeting and would have continued extending to every regular

weekly meeting but for the City's postlitigation enactment of another ordinance altering

the City's practice. (See Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904,

915 [for purposes of enforcing the Brown Act under section 54960, a present or future

action includes past actions that are not one-time events and are related to present or

future actions].) Thus, we conclude the Center was not required to comply with the

preconditions in section 54960.2 before commencing this litigation.

                                             III

       Finally, the City contends its postlitigation adoption of an ordinance providing for

nonagenda public comment periods on both Mondays and Tuesdays necessarily moots

this litigation. We disagree.

       "An issue becomes moot when some event has occurred which 'deprive[s] the

controversy of its life.' [Citation.] The policy behind a mootness dismissal is that 'courts

decide justiciable controversies and will normally not render advisory opinions.' "

(Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231,

257; accord, Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th

1559, 1573.) The voluntary cessation of allegedly wrongful conduct destroys the

justiciability of a controversy and renders an action moot unless there is a reasonable

expectation the allegedly wrongful conduct will be repeated. (See Environmental

Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 887;

Pittenger v. Home Sav. & Loan Asso. (1958) 166 Cal.App.2d 32, 36.)



                                             13
       At oral argument, the Center's counsel was unable to articulate facts suggesting a

reasonable expectation the City would pass another ordinance resuming its former

practice. Nonetheless, the City's counsel acknowledged the change in the City's practice

for handling nonagenda public comment periods did not equate to a change in the City's

legal position. The City stills consider its two-day regular weekly meetings to be one

continuous meeting, rather than two separate meetings, for Brown Act purposes. The

City also has not conceded its former practice of allowing only one nonagenda public

comment period violated the Brown Act. Thus, the Center may be able to at least plead a

viable claim for declaratory relief. (See Cal. Alliance for Utils. Etc. Educ. v. City of San

Diego (1997) 56 Cal.App.4th 1024, 1029-1030 [an actual controversy existed entitling

plaintiffs to declaratory relief where the parties disagreed whether the city council's

actions violated the Brown Act, and the court could presume the city would continue

similar practices in light of the city's refusal to concede the violation].) As there is a

reasonable possibility the Center can amend its complaint to state a viable claim, we

conclude the court erred in sustaining the City's demurrer to the Center's complaint

without leave to amend. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; City of

Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865; see also City of Stockton v.

Superior Court (2007) 42 Cal.4th 730, 747 [as a matter of fairness, a plaintiff who has not

had an opportunity to amend its complaint in response to a demurrer should be allowed

leave to amend unless the complaint shows on its face it is incapable of amendment].)




                                              14
                                     DISPOSITION

      The judgment is reversed. The matter is remanded to the trial court with

directions to grant the Center leave to file an amended complaint and to conduct further

proceedings consistent with this decision. The Center is awarded its costs on appeal.




                                                                     MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



AARON, J.




                                           15
