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Court of Appeal:
Letter by Later-Hired Lawyer Not Attributable to Plaintiff
Majority Says Party May Not Rely on Counsel’s Notice to City Council, Sent Before Attorney-Client Bond, to Satisfy Her Obligation Under Brown Act to Demand Correction Before Filing Suit, Drawing Dissent
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal held yesterday, in a 2-1 decision, that a plaintiff who filed a complaint against the City of San Diego and certain members of the City Council alleging a violation of California’s open meetings law without first sending a demand letter, as statutorily required, cannot rely upon protests conveyed by a lawyer prior to representing her.
According to plaintiff Kathryn Burton, a majority of the City Council members discussed, deliberated, and agreed on their votes in a “secret serial meeting” with Mayor Todd Gloria in May 2021 to secure approval of a new set of franchise agreements granting San Diego Gas & Electric Company (“SDG&E”) the exclusive right to provide services to the city’s residents.
Burton’s complaint alleges a violation of the Ralph M. Brown Act, codified at Government Code §54950 et seq..
Sec. 54952.2(b)(1) provides that “[a] majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”
Under §54960.1(b), before commencing legal action, “an interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section…54954.2” and “[t]he demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation.”
News Story
After the San Diego Union Tribune, in May 2021, reported that the mayor and his staff had “met with all nine members of the San Diego City Council in the past few days, looking to win their support for a new electric and gas franchise agreement between the city and [SDG&E],” attorney Maria Severson, of the firm Aguirre & Severson LLP, sent a letter to the council quoting from the news story and alleging a violation of §54952.2(b)(1).
Severson’s letter, dated May 21, 2021, demanded that the board “cure and correct” its open meeting violation by taking the matter off the agenda of the May 25, 2021 meeting. The City Council kept the matter on the calendar, with two-thirds of the members voting in favor of resolutions supporting the proposed franchise agreements. The following day, Severson sent another letter demanding that they “rescind the resolutions as the appropriate cure for the illegal action.”
At a meeting on June 8, 2021, the City Council finally adopted, by a two-thirds vote, the proposed ordinances to approve the agreements with SDG&E.
Legal Action
Burton retained Aguirre & Severson in June 2021, filing a petition for writ of mandate and a complaint seeking declaratory and injunctive relief against the city and the six members who voted in favor of the approvals. The pleadings sought an order declaring that the city defendants violated the Brown Act and deeming their adoption of the franchise agreements to be “null and void.”
The complaint quotes from portions of Severson’s letters to the board and alleges that Burton “through legal counsel wrote to” the City Council “advising of the serial meeting violations and demanding such violations be cured.”
SDG&E was granted leave to intervene in the action as a defendant and filed a motion for summary judgment, which the city defendants joined, arguing that Burton could not rely on Severson’s demand letters because they were not sent on her behalf.
San Diego Superior Court Judge Eddie C. Sturgeon agreed and granted the motion.
Justice Joan K. Irion wrote the opinion affirming the ensuing judgment. Acting Presiding Justice Terry B. O’Rourke joined in the opinion and Justice William Dato dissented.
Majority View
Irion wrote:
“Here, it is undisputed that Burton did not personally submit to the City Council any written demand to cure or correct. Severson sent the two demand letters to the Council members on May 21 and May 26, 2021, but those letters did not mention Burton. When Burton was deposed…, she admitted that she was not involved with preparing Severson’s demand letters….Burton confirmed that Aguirre & Severson was not ‘acting as [her] counsel in connection with’ the letters. She retained the firm ‘a couple of weeks’ before the Petition/Complaint was filed on June 16, 2021.”
The jurist said “[d]espite her lack of participation in Severson’s demand letters,” the plaintiff argues that the demand requirement of §54960.1 was met in the case because the statute only requires that “an interested person” make a demand and Severson qualifies as such a party. Unpersuaded, Irion remarked:
“Burton’s argument fails because it is contrary to the plain language of the statute. Section 54960.1, subdivision (a) permits ‘any interested person’ to commence an action, but subdivision (b) requires ‘the…interested person’ to ‘make a demand of the legislative body to cure or correct’ the alleged violation. (Italics added.) Subdivision (c)(4), in turn, states that ‘the demanding party’ must file suit within 15 days. (Italics added.) Thus, a person may bring an action seeking relief under section 54960.1 only if that same person makes a demand to cure and correct before filing suit.”
Burton also asserts that she satisfied the demand requirement because she “fully adopted, authorized[,] and ratified” Severson’s letters in her pleadings, quoting from them verbatim. Irion said “[w]e reject Burton’s attempt to rely of the doctrine of ratification because it is undisputed that Severson did not represent Burton when she sent the letters and did not send them on Burton’s behalf.”
Substantial Compliance
The justice commented that “for the first time in her appellate reply brief Burton contends that she has ‘substantially complied’ with the demand requirement of section 54960.1 because Severson’s letters brought the alleged Brown Act violation to the attention of the City defendants.”
Irion opined that Burton forfeited the argument by not raising it earlier and said that “even were we to consider the doctrine of substantial compliance, the doctrine is inapplicable here because Burton made no attempt whatsoever to comply with section 54960.1.”
Noting that the statute requires the demand to be sent within 90 days from the date the action was taken, she said “Burton still had ample time to send her own demand letter” but failed to do so.
Dato’s Dissent
Dato said:
“Where a fully compliant cure-and-correct letter detailing an alleged Brown Act violation has already been sent to the public entity by someone else—here, an attorney the plaintiff would shortly thereafter retain—is the plaintiff required to send another duplicative letter before filing her lawsuit?....Because the only purpose of the statute—to give a legislative body an opportunity to cure or correct an alleged open meeting violation—was fully served in this case, I respectfully dissent from the majority opinion’s conclusion that this action is procedurally barred.”
He acknowledged that “it may be true that the literal words ‘substantial compliance’ do not appear in the opening brief” but wrote:
“I am somewhat confused by the majority opinion’s suggestion that we need not consider whether Burton substantially complied with the prelitigation notice requirement on grounds that it was not raised until the reply brief. Burton’s primary argument on appeal is that she adequately complied with the statute and substantial compliance is the established governing standard. Our role requires that we apply the governing legal standard to the facts of the case. I see no basis to invoke principles of forfeiture.”
The justice continued:
“[W]hen pressed at oral argument, neither the City nor SDG&E could identify any reason, hypothetical or otherwise, why the City would respond differently or more positively to a letter written ‘on behalf of Burton’ than it did to Severson’s letter. In my view, the City’s inability to answer this question leads to the ineluctable conclusion that the alleged lack of compliance made no substantive difference and establishes substantial compliance as a matter of law.”
The case is Burton v. Campbell, 2024 S.O.S. 3632.
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