Center for Local Government Accountability v. City of San Diego
202 Cal. Rptr. 3d 629
Cal. Ct. App.2016Background
- The Center for Local Government Accountability sued the City of San Diego under the Brown Act, alleging the City’s practice of holding one consolidated nonagenda public comment period (on Tuesdays) for its two-day weekly meetings violated Gov. Code §54954.3(a).
- The City had adopted a 2001 ordinance providing a single weekly agenda and one nonagenda public comment period on Tuesdays; after litigation began the City adopted an ordinance providing comment periods on both Mondays and Tuesdays.
- The Center sought declaratory and injunctive relief plus a writ mandating a nonagenda public comment period at any separate regular meeting (including Mondays).
- The trial court sustained the City’s demurrer without leave to amend, holding the Center failed to comply with preconditions in Gov. Code §54960.2 (e.g., sending a cease-and-desist letter) and that the case was moot due to the City’s subsequent ordinance.
- The Court of Appeal reviewed de novo and considered whether §54960’s phrase “subject to Section 54960.2” applies to suits about past actions, ongoing/threatened actions, or both; whether the City’s ordinance constituted a past or ongoing/threatened action; and whether the City’s ordinance change rendered the case moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the phrase “subject to Section 54960.2” in §54960(a) apply only to suits about past actions or to past and ongoing/threatened actions? | The qualifying phrase limits preconditions in §54960.2 to suits about past actions only. | The qualifying phrase applies to both past actions and ongoing/threatened actions, so preconditions apply to all §54960(a) suits. | The phrase applies only to litigation challenging past actions; §54960.2’s preconditions do not apply to suits about ongoing or threatened future actions. |
| Is the City’s long‑standing ordinance (one weekly nonagenda comment period) a past action (requiring §54960.2 preconditions) or an ongoing/threatened action? | The ordinance was an ongoing/threatened practice, not a discrete past act, so §54960.2 preconditions were not required. | The ordinance adoption was a past action; therefore the Center should have met §54960.2 preconditions before suing. | Adopting the ordinance produced continuing effects (applied to successive meetings), so it was an ongoing/threatened action and §54960.2 preconditions did not apply. |
| Did the City’s postlitigation ordinance change (adding Monday comment periods) moot the Center’s claims? | The change does not necessarily moot the case because the City maintains its legal position (that the two-day meeting is one meeting) and has not conceded illegality, so there is a reasonable possibility the practice could resume; declaratory relief may remain appropriate. | The ordinance change mooted the dispute; voluntary cessation eliminated the controversy. | Voluntary cessation does not automatically moot the case; because the City preserved its legal position and there is a reasonable possibility the practice could recur, the case was not necessarily moot. |
| Was dismissal without leave to amend proper? | The Center could potentially allege facts supporting declaratory relief and a reasonable expectation the City might revert, so leave to amend should be allowed. | The complaint failed as a matter of law for lack of preconditions and mootness; dismissal was proper. | Dismissal without leave to amend was error; the trial court must give leave to amend and proceed accordingly. |
Key Cases Cited
- Regents of Univ. of Cal. v. Superior Court, 20 Cal.4th 509 (1999) (Brown Act governs notice and public access to local legislative meetings)
- White v. County of Sacramento, 31 Cal.3d 676 (1982) (last antecedent rule and its limits in statutory construction)
- Burris v. Superior Court, 34 Cal.4th 1012 (2005) (statutory interpretation focuses on legislative intent and purpose)
- Shapiro v. San Diego City Council, 96 Cal.App.4th 904 (2002) (past actions that are not one‑time events can be treated as present or future actions under the Brown Act)
- Cal. Alliance for Utils. Etc. Educ. v. City of San Diego, 56 Cal.App.4th 1024 (1997) (actual controversy for declaratory relief exists when a public entity refuses to concede illegality)