Hernandez v. Town of Apple Valley
7 Cal. App. 5th 194
| Cal. Ct. App. | 2017Background
- Town of Apple Valley council posted an August 13, 2013 agenda listing item 16 as “Wal-Mart Initiative Measure” with recommendation “Provide direction to staff”; the agenda did not expressly list three resolutions adopted at the meeting or a memorandum of understanding (MOU) authorizing acceptance of Walmart’s gift to fund a special election.
- At the meeting the council adopted three resolutions to call a special election on a Specific Plan (Measure D), to allow rebuttal arguments, and adopted an MOU authorizing the Town to accept Walmart’s offered gift to pay for the election; the MOU was not in the posted agenda or packet and was proposed after the agenda was posted.
- Hernandez, an Apple Valley voter, sued under the Brown Act (Gov. Code §54950 et seq.) for inadequate agenda notice and also challenged Measure D under Cal. Const., art. II, §12, arguing the initiative identified Walmart as the private beneficiary.
- Trial court granted Hernandez’s summary judgment motion: it invalidated the MOU approval (Brown Act violation) and declared the Initiative void under article II, §12; ordered fees and costs. Court of Appeal affirmed Brown Act ruling and attorney-fee award, reversed the constitutional ruling as to article II, §12, and reversed the award of costs because the memorandum of costs was a late filing without a showing of excusable mistake.
- Court of Appeal held Measure D itself did not name or identify Walmart within the four corners of the initiative, but the placement of Measure D on the ballot by council was null and void because of the Brown Act violation concerning the MOU.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brown Act notice (agenda) | Hernandez: agenda failed to disclose actions (resolutions and MOU) so public lacked notice and was prejudiced | Town/Walmart: agenda and packet (online/at clerk) substantially complied; public participation occurred and no prejudice shown | Held for Hernandez: approval of MOU and action placing Measure D on ballot violated Brown Act and is void due to prejudice from MOU omission |
| Article II, §12 (identification of private corporation) | Hernandez: Measure D identified Walmart (owner/developer) through references and extrinsic ballot materials; thus unconstitutional | Town/Walmart: Measure D did not name/identify Walmart on its face; extrinsic materials cannot render initiative invalid; severability possible | Held for Town/Walmart: Initiative as written did not violate article II, §12; trial court erred to invalidate Measure on that ground (but Measure remains void due to Brown Act) |
| Attorney fees (reasonable hourly rate) | Hernandez: counsel’s $550/hr rate is reasonable for the work and community; requested fee award | Town/Walmart: rate excessive for San Bernardino market; should be reduced | Held for Hernandez: trial court did not abuse discretion in awarding fees at the requested rate (after considering local rates and contingency factors) |
| Costs (timeliness of memorandum) | Hernandez: timely enough; entitled to costs including process-server fee for Brown Act cure letter | Town/Walmart: memorandum of costs was filed one day late and must be stricken; process-server fee unnecessary | Held for Town/Walmart on costs: memorandum was late and Hernandez made no showing of excusable mistake under CCP §473; costs award reversed and Hernandez gets no costs |
Key Cases Cited
- San Joaquin Raptor Rescue Center v. County of Merced, 216 Cal.App.4th 1167 (court found Brown Act violation where agenda failed to list distinct item of business — adoption of a mitigated negative declaration)
- Pala Band of Mission Indians v. Board of Supervisors, 54 Cal.App.4th 565 (initiative that granted exclusive functions/powers to a named private applicant implicated article II, §12)
- Calfarm Insurance Co. v. Deukmejian, 48 Cal.3d 805 (initiative that identified a particular private corporation to perform functions was invalid under article II, §12)
- Ketchum v. Moses, 24 Cal.4th 1122 (discusses multipliers/fee enhancements in public-interest contingent fee cases)
- Towns v. Davidson, 147 Cal.App.4th 461 (summary judgment standard cited)