Court of Appeal:
Lawmaker’s Inaction Can Be ‘Action’ Under Brown Act
Writ Petition Based on Failure to List on City Council Agenda an Intent to Discuss City Manager’s Revocation Of a License Is Not a SLAPP; Suit Stems Not From Protected Conduct but From ‘Ordinary Business’
By a MetNews Staff Writer
A local legislative body can take an “action” by deciding not to countermand a decision by an official, Div. Three of the Fourth District Court of Appeal held yesterday, affirming an order denying an anti-SLAPP motion filed by the City of Orange in response to a lawsuit claiming that its lawmakers violated the Brown Act by backing the city manager’s decision to revoke a license without providing notice of an intention to take up that matter.
Government Code §54954.2(a)(1) provides:
“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”
Plaintiff Mary’s Kitchen, which operates a soup kitchen for the homeless, contends in its Orange Superior Court writ petition that the City Council violated that provision by deciding on July 13, 2021, not to disturb the decision of then-City Manager Rick Otto to revoke its license to occupy space on city property. The agenda for closed-session portion of that meeting merely said:
“Conference with Legal Counsel—Anticipated litigation pursuant to Government Code Section 54956.9(d)(2)-(4). (One case).”
The city contended that it took no action at that session, deciding that, in light of a threatened writ proceeding, to do nothing.
However, then-City Attorney Gary Sheatz came out of the closed meeting and announced that the council had “unanimously confirmed” the revocation of Mary’s Kitchen’s license. The minutes of the meeting likewise indicate that “the City Council unanimously confirmed the actions of the City Manager and staff in terminating the license agreement between the City and Mary’s Kitchen.”
A confirmation, Justice Maurice Sanchez said in yesterday’s opinion, “is evidence of an action: ratification.”
Sanchez said that Orange Superior Court Judge John Gastelum properly denied the city’s anti-SLAPP motion because “[t]he action of ratifying the termination of the licensing agreement, assuming it occurred, is not conduct in furtherance of free speech; it is ordinary business.”
Gastelum found that the action brought by Mary’s Kitchen and its president, Gloria Suess, is not founded on conduct that is protected under the anti-SLAPP statute, Code of Civil Procedure §425.16, and therefore did not proceed to the second step: determining if the action has minimal merit.
The city argued in its opening brief:
“The ability of a city council to discuss and obtain privileged legal advice from its attorneys, like any person, is a vitally-important right to municipalities, which right is protected by the Brown Act, Civil Code § 47 [privileged publications], and the attorney-client privilege….
“The fact that such closed-session, privileged meetings regularly occur is neither surprising nor controversial. Indeed, they are necessary to a properly-functioning government. To disrupt, invade, chill and punish this protected conduct is a dangerous attack against the foundational aspects of our legal system. But this is exactly what Plaintiffs have done.”
The brief asserts:
“The allegations of the Complaint and the undisputed evidence are clear that the only thing that happened at the closed-session meeting was a privileged and protected attorney-client communication, and that is the only thing that Plaintiffs’ Complaint does, and logically could, arise from. The fact that Plaintiffs with their Complaint have misused the courts to further their strategic attacks on the City is a gross perversion of the system, one which the Anti-SLAPP Statute was directly designed to preclude. The fact that they have gotten away with it thus far, by avoiding application of the Anti-SLAPP Statute, is a travesty and a threat to the ability of all similarly-situated municipalities to function, one which needs to be corrected.”
“Here, the City should not have to rely on the good fortune that Plaintiffs failed to artfully plead (or were unwilling to perjure themselves directly) that an official action had been taken in the closed-session in order to take advantage of the Statute. If Plaintiffs had so falsely pleaded (against reality and evidence), the chilling intent or effect would not be diminished. The law should recognize that the language and purpose of the Statute are best served by courts considering undisputed evidence of what the action truly ‘arises from’ in reality, even if it contradicts unsupported allegations.”
“[W]e interpret the complaint as arising from unprotected action—the unanimous confirmation—and the fact that the agenda had not given proper notice of that action. Specifically, paragraph 17 of the complaint sets forth the minutes of the council meeting, which are entitled ‘REPORT ON CLOSED SESSION ACTIONS’ (italics added), and which go on to describe the unanimous confirmation of the termination of the license agreement. In paragraph 27, in describing the basis for the Brown Act violation, Plaintiffs’ reference ‘Respondent’s secret, unnoticed meeting and actions on July 13, 2021, in closed session....’ (Italics added.)…We do not read the complaint as being based on the conversation the city council had with the city attorney in anticipation of litigation…. ”
“The City repeatedly and stridently argues in its briefs that there was no evidence of an action taken at the council meeting. But the City has failed to appreciate the importance of the words ‘unanimously confirmed’ in the meeting minutes. A reasonably plausible inference from those words is that the city council confirmed—i.e., ratified—the city manager’s decision to terminate the license agreement, and the city council did so unanimously—i.e., all council members voted to do so. This is certainly plaintiffs’ interpretation of those words, and the complaint arises from that interpretation. The City derides this interpretation as ‘speculation and mischaracterization,’ but it is not speculation to give words their ordinary meaning.”
The jurist added:
“It may well be that the City ultimately proves that nothing happened at that meeting. But it is crystal clear that plaintiffs base their lawsuit on a claim that an action occurred, which is supported by a plausible inference from the meeting minutes.”
The decision to revoke the license to use the city’s property at no cost—first granted in 1993 and renewed periodically since then—was based on Mary’s Kitchens alleged failure to “keep the City’s property safe and clean and to ensure against illegal activity on and around the property,” the appellant’s opening brief sets forth, alleging:
“…Plaintiffs increasingly failed to abide by their obligations and became the source of growing criminal conduct and disturbances to the area, including a Fentanyl overdose by a convicted sex offender that Plaintiffs were using as a ‘volunteer security guard,’ a stabbing, and a barricaded hostage situation in Plaintiffs’ office.”
The case is Mary’s Kitchen v. City of Orange, 2023 S.O.S. 3901.
The City of Orange was founded in 1871 by Alfred Chapman, a former Los Angeles County district attorney, and Andrew Glassell, later to become the first president of the Los Angeles County Bar Association. What is now Orange County, where the city is located, was not founded until 1889; it was then a part of Los Angeles County.
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