Filed 2/22/19; Certified for Publication 3/4/19 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                         DIVISION ONE


ERIC PREVEN,                                      B287559

        Petitioner and Appellant,                 (Los Angeles County
                                                  Super. Ct. No. BS166039)
        v.

CITY OF LOS ANGELES et al.,

        Respondents.




        APPEAL from a judgment of the Superior Court of Los Angeles, John
P. Doyle, Judge. Affirmed in part, reversed in part.

        Paul Nicholas Boylan, for Petitioner and Appellant.

        Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant City
Attorney, and Paul L. Winnemore, Deputy City Attorney, for Respondents.


                                       __________________

        This appeal concerns the statutory interpretation of one of the public
comment requirements of California’s open meeting law, the Ralph M. Brown
Act, Government Code section 54950 et seq. Appellant Eric Preven exercised
                                                1



his opportunity to address a meeting of the Los Angeles City Council’s
Planning and Land Use Management Committee (PLUM). He was then
denied the opportunity to address the full city council when it held a special
meeting the next day to discuss, among other things, the recommendation
arrived at by the PLUM committee.

      Asserting the City of Los Angeles’s (City) refusal to let him address the
special city council meeting was part of a larger pattern of Brown Act
violations, Preven sent a cease and desist demand letter to the City. When
the City failed to respond to that letter, he filed a petition for a writ of
mandate and complaint for declaratory relief to enforce the Brown Act. He
further brought a second claim based on the California Public Records Act.
((CPRA); § 6250 et seq.)

      In response to the petition, the City argued the Brown Act requires
only the opportunity to address a special meeting of a legislative body before
it takes action. Since Preven spoke before the special city council meeting at
the PLUM committee meeting, the City asserted it could bar Preven from
addressing the full council on the same topic. The trial court agreed,
sustained the City’s demurrer without leave to amend, and entered a
judgment of dismissal.

      For the reasons set forth below, we find Preven has stated a claim for a
writ of mandate and declaratory relief with regard to the Brown Act. We
accordingly reverse the judgment of dismissal as to that count. Given
Preven’s concession that he is not suing to enforce the CPRA, and did not




1
      All statutory references are to the Government Code.


                                          2
make any request for records pursuant to it, we affirm the trial court’s
dismissal of the CPRA count as duplicative of his Brown Act claim.

                                BACKGROUND

        When “ ‘reviewing a judgment of dismissal after a demurrer is
sustained without leave to amend, we . . . assume the truth of all facts
properly pleaded’ ” in the operative petition, “ ‘as well as those [facts] that are
judicially noticeable.’ ” (Heckart v. A-1 Self Storage, Inc. (2018) 4 Cal.5th 749,
753.)

        On December 15, 2015, the PLUM committee held an open meeting.
That committee consists of five members of the fifteen-member city council.
Agenda item 5 for the meeting concerned a recommendation to the full city
council on a proposed real estate development near Preven’s residence. The
committee listened to comment from members of the public, including
Preven, and voted unanimously to make a report and recommendation of
approval to the full city council.

        The following day, December 16, 2015, a special meeting of the city
council was held to decide (among other things) whether to approve the
recommendation of the PLUM committee on the real estate development.
Preven knew this special meeting was scheduled to take place when he
attended the December 15th PLUM committee meeting. Preven attended the
December 16th special meeting, and requested an opportunity to address the
city council, including the ten council members who were not part of the five-
member PLUM committee. His request was denied on the grounds that he
and others had the opportunity to comment on the real estate development
agenda item at the PLUM committee meeting the previous day.




                                         3
      On September 14, 2016, Preven delivered a cease and desist demand
letter to the City Clerk. In it, he asserted the City had violated the Brown
                           2



Act by preventing him from speaking at the December 16, 2015 meeting, and
that the City had engaged in similar improper conduct at subsequent special
city council meetings in May and June 2016. The City did not respond to that
letter within 60 days, or at any time afterwards.

                                    DISCUSSION

      “[W]e review the [operative petition] de novo to determine whether it
alleges facts stating a cause of action under any legal theory.” (Tom Jones
Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1290;
see also Jacobs v. Regents of University of California (2017) 13 Cal.App.5th
17, 24 [de novo review of petition for writ of mandate involving statutory
guaranty], Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947,
954−955 [issues of statutory interpretation reviewed de novo].)
      A. The Brown Act

      “The purpose of the Brown Act is to facilitate public participation in
local government decisions and to curb misuse of the democratic process by
secret legislation.” (Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th
1109, 1116.) As a remedial statute, we construe the Brown Act liberally to
accomplish its purpose, and “suppress the mischief at which it is directed.”
(International Longshoremen’s & Warehousemen’s Union v. Los Angeles
Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 294.)

             1. Regular Versus Special Meetings


2
       The sending of such a demand letter is required prior to pursuing litigation under
the Brown Act to permit the legislative body the opportunity to commit not to repeat the
actions alleged to be in violation of the Act. (§ 54960.2.)


                                            4
      The Brown Act distinguishes between regular and special meetings of a
legislative body. Legislative bodies must determine a regular time and place
for holding their meetings. (§ 54954, subd. (a).) Regular meetings must be
preceded by 72 hours’ notice, including an agenda with “a brief general
description of each item of business to be transacted or discussed at the
meeting.” (§ 54954.2.) While legislative discussion and action is generally
restricted to items listed on the agenda, section 54954.2, subdivision (b)
permits certain exceptions to this general rule. The scope of permissible
public comment at a regular meeting includes “any item of interest to the
public . . . that is within the subject matter jurisdiction of the legislative
body.” (§ 54954.3, subd. (a) (54954.3(a)).) The public’s opportunity to address
the legislative body must take place “before or during the legislative body’s
consideration” of the item at issue. (Ibid.)

      However, the legislative body does need not provide an opportunity for
public comment at a regular meeting: “on any item that has already been
considered by a committee, composed exclusively of members of the
legislative body, at a public meeting wherein all interested members of the
public were afforded the opportunity to address the committee on the item,
before or during the committee’s consideration of the item, unless the item
has been substantially changed since the committee heard the item, as
determined by the legislative body.” (§ 54953.3(a).)

      The parties refer to this as the “committee exception,” and we likewise
use that terminology for ease of reference.

      Special meetings, on the other hand, may be called at any time by the
presiding officer or a majority of the members of a legislative body no less
than 24 hours in advance of the meeting, and upon certain specified notice
requirements including notice of “the business to be transacted or discussed.”


                                         5
(§ 54956, subd. (a).) The agenda posting exceptions listed in section 54954.2,
subdivision (b) do not apply to special meetings, and no business beyond that
set forth in the notice “shall be considered” at a special meeting. (§ 54956,
subd. (a).) The scope of public comment is similarly delimited to items
noticed for the special meeting. Instead of being able to address any item of
interest within the legislative body’s subject matter jurisdiction, the public
has a right to address a special meeting on “any item that has been described
in the notice for the meeting.” (§ 54954.3(a).) As with general meetings, the
public must be given the opportunity to address the legislative body “before
or during consideration” of the agenda item. (Ibid.)
            2. The Trial Court’s Ruling

      In sustaining the City’s demurrer, the trial court held that the Brown
Act does not establish different public participation rules for special meetings
and regular meetings, especially where an individual already had an
opportunity to address a committee on the item in question. After granting
leave to amend and considering additional legislative history submitted by
the parties, the court found the committee exception in section 54954.3(a)
applies to both regular and special meetings. The court further reasoned that
Preven had the opportunity to address the PLUM committee before the
special city council meeting, and therefore he did not have a right to be heard
again on the same item at the special meeting.
            3. The Committee Exception Does Not Apply to Special
               Meetings

      The trial court’s holding that the committee exception in section
54954.3(a) applies to special meetings was error. Indeed, before us, the City
concedes the committee exception applies only to regular meetings. “Under
general settled canons of statutory construction, we ascertain the



                                        6
Legislature’s intent in order to effectuate the law’s purpose.” (White v.
Ultramar, Inc. (1999) 21 Cal.4th 563, 572.) We “ ‘look first to the words of the
statute, “because they generally provide the most reliable indicator of
legislative intent.” ’ ” (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th
1244, 1250.)

      It is a general rule of statutory construction that modifying phrases are
to be applied to the words immediately preceding them. (People v. Corey
(1978) 21 Cal.3d 738, 742.) The full language of section 54954.3(a) has three
sentences, which are separated below for ease of reference:
       “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.
       “However, the agenda need not provide an opportunity for members of
the public to address the legislative body on any item that has already been
considered by a committee, composed exclusively of members of the
legislative body, at a public meeting wherein all interested members of the
public were afforded the opportunity to address the committee on the item,
before or during the committee’s consideration of the item, unless the item
has been substantially changed since the committee heard the item, as
determined by the legislative body.
      “Every notice for a special meeting shall provide an opportunity for
members of the public to directly address the legislative body concerning any
item that has been described in the notice for the meeting before or during
consideration of that item.”

      The plain language of section 54954.3(a) specifies that the committee
exception applies to only to regular meetings. “ ‘If the statutory language is


                                        7
clear and unambiguous, our inquiry ends.’ ” (Kirby, supra, 53 Cal.4th at p.
1250.) The sentence setting forth the committee exception comes after the
first sentence discussing regular meetings, and begins with “However . . . .”
This indicates the second sentence is modifying the first sentence. (Corey,
supra, 21 Cal.3d at p. 742.) The sentence setting forth the committee
exception also comes before the third sentence discussing special meetings,
and the third sentence does not refer to the second sentence or any committee
exception.
              4. “Before” Cannot Be Read to Create a Committee
                 Exception for Special Meetings

      Instead of arguing section 54954.3(a)’s committee exception applies to
special meetings, the City claims it complied with the Brown Act because
section 54954.3(a) requires the opportunity for public comment “before . . .
consideration” of the special meeting agenda item, and Preven was given the
opportunity to comment before the special city council meeting at the PLUM
committee meeting the preceding day. We do not agree that section
54954.3(a)’s language requiring the opportunity for public comment “before
. . . consideration” by a legislative body at a special meeting can be construed
so broadly.

      A fundamental rule of statutory construction requires that every part
of a statute be presumed to have some effect and not be treated as
meaningless unless absolutely necessary. “ ‘[A] construction that renders a
word surplusage should be avoided.’ ” (People v. Arias (2008) 45 Cal.4th 169,
180.) Construing the phrase requiring the public be allowed to address a
special meeting “before . . . consideration of that item” to create what would
in effect be a committee exception for special meetings renders the committee
exception language already in section 54954.3(a) superfluous. Section



                                        8
54954.3(a) requires that any public comments—whether at a regular or
special meeting—occur “before or during” the legislative body’s consideration
of that item. If public comment “before” a regular or special meeting includes
a prior committee meeting, the committee exception language for regular
meetings would be superfluous and unnecessary.

      As a fallback, the City tries to analogize the facts here to one
continuous meeting over several days, citing Chaffee v. San Francisco Library
Commission (2004) 115 Cal.App.4th 461, 468. In Chaffee, the court found
that when a legislative body’s meeting spans more than one day, the
legislative body needs to provide only a single general public comment period
rather than comment periods on multiple days. (Id. at p. 468.) That analogy
is inapt. Chafee involved a hearing of the same legislative body with the
same members involved in one meeting that took more than one day. Here,
in contrast, there was a meeting of the PLUM committee involving five
members of the city council. That meeting started and ended on December
15, 2015. It was followed the next day by a separate and distinct meeting of
the full city council—including 10 members not present at the committee
meeting.
            5. The Legislative History Indicates that the Word “Before”
               in Section 54954.3(a) Does Not Refer to Prior, Separate
               Committee Meetings

      Given the potential ambiguity in section 54954.3(a) over whether the
required opportunity for public comment “before” a legislative body takes
action at a special meeting includes comment at a prior separate meeting, or
is limited to the timing of public comment within the special meeting itself,
we also consider the legislative history of section 54954.3(a). (Nolan v. City of
Anaheim (2004) 33 Cal.4th 335, 340.) When examining legislative history, it



                                        9
is appropriate to consider the timing and historical context of the
Legislature’s actions. (MCI Communications Services, Inc. v. California Dept.
of Tax & Fee Administration (2018) 28 Cal.App.5th 635, 652.)
                  a. Regular Meeting Provisions: 1953−1991

      As originally enacted in 1953, the Brown Act did not require the
opportunity for public comment at either regular or special meetings. (Stats.
1953, ch. 1588, § 1.) In 1986, the Act was amended to include a public
comment requirement for regular meetings. The Legislature also created an
exception to such public comment at regular meetings of a city council or
board of supervisors where the public had previously addressed a committee
of the council or board on the agenda item. (Stats. 1986, ch. 641, § 6.)

      In 1991—after the enactment of the committee exception for regular
meetings—the Act was amended to require public comment at regular
meetings of all legislative bodies (including city council and board of
supervisor meetings) occur “before or during” consideration by the legislative
body or committee of the item. (Stats. 1991, ch. 66, § 1.)

      As shown by this chronology, the “before” language for regular
meetings was enacted five years after the committee exception. As with the
structure of section 54954.3(a) itself, the statute’s provenance indicates that
the “before” language was not designed to limit comment based on speech at
a separate prior meeting. After all, at the time the “before” language was
included in section 54954.3(a), that provision already had a committee
exception, which addressed when comments could be limited based on prior
meetings. The 1991 amendment was not designed to further limit public
comment, but rather to make sure that public comments were in fact heard
and considered. By requiring public comments “before or during” any
legislative consideration at a regular or committee meeting, the 1991 “before”


                                       10
language made sure public comments within a particular meeting (either a
committee or regular meeting) were heard by the legislative body in that
meeting before it considered an item and took action.
                  b. Special Meeting Provisions: 1993−1994

      It was not until 1993 that the Legislature required an opportunity for
public comment at special meetings of legislative bodies. (Stats. 1993, ch.
1136 (Assem. Bill No. 1426) § 9; ch. 1137 (Sen. Bill No. 36) § 9.) In that year,
the Legislature added a sentence at the end of section 54954.3(a) stating
“Every notice for a special meeting at which action is proposed to be taken on
an item shall provide an opportunity for members of the public to directly
address the legislative body concerning that item prior to action on the item.”
(Ibid.)

      Preven submitted evidence below indicating one suggested amendment
to the 1993 Senate Bill included a committee exception for special meetings,
which the Legislature ultimately did not include. The available legislative
history provides no indication as to why this proposed committee exception
for special meetings was not included in the final bill. This draft amendment,
however, does highlight the obvious point that if the Legislature wanted to
create a committee-like exception for special meetings, it knew how to say so
clearly. That fact that the Legislature chose not to do so is evidence of its
intent not to create the type of exception urged by the City. (People v. Tilbury
(1991) 54 Cal.3d 56, 61−63.)

      Finally, in 1994, the special meeting language in section 54954.3(a) was
amended into its current form to parallel more closely the first sentence of




                                       11
that section requiring public comment at regular meetings occur “before or
during” consideration by the legislative body. (Stats. 1994, ch. 32, § 9.)
                                                                                 3



                    c. Conclusion

       This legislative history shows that section 54954.3(a)’s current
requirement that the public be allowed to address a special meeting “before
or during” consideration of an agenda item has the same meaning as similar
“before or during” language did when it was enacted in 1991 for general
meetings. The “before or during” language concerns the timing of comments
within a particular meeting, and does operate to restrict comment based on a
prior distinct meeting.

      The City argues this construction would lead to absurd results by
leading to different public participation rules for special and regular
meetings. We see no such absurdity. Both the statute as well as its
legislative history show that the Legislature has purposefully made a number
of distinctions between regular and special meetings. The notice
requirements are different—72 hours for regular meetings, 24 hours for
special meetings. The scope of permissible comment at the meetings is
different—“any item of interest to the public . . . within the subject matter
jurisdiction of the legislative body” for regular meetings, compared to only
those items “described in the notice” for special meetings. There is a
committee exception for regular meetings, and no committee exception for
special meeting. To the extent the Brown Act’s public comment rules are


3
       The changes from the 1993 language were as follows: Every notice for a special
meeting at which action is proposed to be taken on an item shall provide an opportunity
for members of the public to directly address the legislative body concerning any_that
item prior to action on the itemthat has been described in the notice for the meeting
before or during consideration of that item.


                                           12
incongruous as between regular and special meetings preceded by a
committee meeting, it is the province of the Legislature, and not this court, to
bring them more in harmony.

      Given the plain language of the statute, and its legislative history, we
find the Brown Act does not permit limiting comment at special city council
meetings based on comments at prior, distinct committee meetings. Preven
adequately alleged a claim that he was improperly denied the opportunity to
comment on the agenda item at a special meeting. Preven also adequately
alleged a pattern of conduct by the City at special city council meetings in
violation of the Brown Act. He therefore stated a claim in his amended
petition for a writ of mandate and complaint for declaratory relief under the
Brown Act.

      B. Preven Failed to State a Claim Under the CPRA

      In addition to his Brown Act claim, Preven brought a second cause of
action for declaratory relief and a writ of mandate under the CPRA to enforce
his right to address the city council. Preven concedes that he is not suing to
enforce the CPRA, and did not make a request for records pursuant to the
statute. The City’s demurrer was sustained without leave to amend based on
the CPRA claim being duplicative of the Brown Act claim.

      When a demurrer is sustained without leave to amend, we look to see
“whether there is a reasonable possibility that the defect can be cured by
amendment.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859,
865.) Given Preven’s acknowledgment that he is not seeking to enforce the
CPRA, there is no reasonable possibility the defects in his second cause of
action under the CPRA can be cured. The trial court did not abuse its
discretion in sustaining the demurrer to the CPRA cause of action without
leave to amend.


                                       13
                                   DISPOSITION

      The judgment of dismissal is reversed. The matter is remanded for
further proceedings consistent with this opinion. The parties are to bear
their own costs on appeal.




                                                WEINGART, J.
                                                                  *




We concur:



             CHANEY, J., Acting P. J.



             BENDIX, J.




      *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                           14
Filed 3/4/19
        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                   DIVISION ONE


ERIC PREVEN,                                    B287559

       Petitioner and Appellant,                (Super. Ct. L.A. County
                                                 No. BS166039)
       v.

CITY OF LOS ANGELES et al.,                     ORDER CERTIFYING
                                                OPINION FOR PUBLICATION
       Defendants and Respondents.




THE COURT*:

       Good cause appearing, it is ordered that the opinion in the above
entitled matter, filed February 22, 2019, be published in the official
reports.


_____________________________________________________________________




________________________ _____________________ _____________________
 *CHANEY, Acting P. J.        BENDIX, J.          WEINGART, J.**


** Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
