Defendant and appellant Town of Apple Valley (Town) and real party in interest
and appellant Wal-mart Stores, Inc. (Walmart) appeal the grant of the motion for
summary judgment and/or adjudication (Motion) in favor of plaintiff and respondent
Gabriel Hernandez. This case involves a measure passed by the Town’s electorate on
November 19, 2013, in a special election (Initiative) that amended the general plan to
allow for a 30-acre commercial development, which would include a Walmart
Supercenter. Walmart provided a gift to Town to pay for the election and Town accepted
the payment by adopting a memorandum of understanding (MOU) at a regular council
meeting held on August 13, 2013.
Hernandez filed a first amended complaint against Town and Walmart alleging
violations of the Ralph M. Brown Act, Government Code section 54950 et seq. (Brown
Act) for actions taken at the Town’s council meeting on August 13, 2013, and that the
Initiative violated the California Constitution, article II, section 12 (article II, section 12).
Specifically, Hernandez argued the agenda for the Town’s council meeting failed to
provide the proper notice of the actions to be taken at the meeting, e.g., that the Town
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council would vote to send the Initiative to the voters and approving the MOU that
accepted the gift from Walmart to pay for the special election. Further, Hernandez
alleged that although Walmart was not specifically named in the Initiative, it was clear
from the other ballot materials that Walmart was identified within the meaning of article
II, section 12 rendering the Initiative unconstitutional. The trial court granted the Motion
finding the MOU and Initiative were void and invalid. The trial court awarded
Hernandez $5,241.96 in costs and $45,053.75 in attorney fees.
Town and Walmart raise the following issues on appeal:
1. The Motion failed to demonstrate that Town violated the Brown Act.
2. The Motion failed to demonstrate that the Initiative violated article II,
section 12.
3. The trial court improperly awarded Hernandez his costs because his
memorandum of costs was filed late and included items that were not recoverable.
4. The trial court should have denied or reduced Hernandez’s request for
attorney fees because he failed to meet his burden of establishing local market rates for
attorneys in San Bernardino County.
The Motion was properly granted on the violation of the Brown Act, which
invalidates the special election on the Initiative. Since it is likely that the matter will
again be placed on the ballot or voted on by the Town council, we also find that the
Initiative as written did not violate article II, section 12. The award of costs is reversed
as the memorandum of costs was filed late without a showing by counsel that such late
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filing was due to mistake of law, inadvertence, or surprise. The attorney fee award is
affirmed.
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF FACTS
The following facts are taken from the undisputed material facts agreed to by
Hernandez, and Town and Walmart; and the additional disputed facts presented by
Hernandez, and by Town and Walmart.
Hernandez was a resident of Apple Valley and was a registered voter. Town was a
local agency and legislative body within the meaning of Government Code sections
54951 and 54952. Walmart was a private corporation. Item No. 16 on the Town council
meeting agenda to be held on August 13, 2013, read “Wal-Mart Initiative Measure” and
the recommendation for action was “Provide direction to staff.” Hernandez alleged there
was no further information on the agenda regarding this matter.
The Town adopted three resolutions at the meeting: Resolution No. 2013-33 was
to call a special election on the Initiative to be held on November 19, 2013, and the
Initiative would be titled Dale Evans Parkways Commercial Specific Plan (the Specific
Plan); Resolution No. 2013-34 provided for filing rebuttal arguments for and against the
Initiative; and Resolution No. 2013-35 for filing rebuttal arguments for and against the
Initiative. Town also adopted the MOU that authorized accepting a gift from Walmart to
pay for the special election. These resolutions and The Specific Plan were not on the
agenda. The agenda did not provide a description of the Walmart Initiative Measure and
the resolutions adopted did not mention the Walmart Initiative Measure in their text.
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In 2011 there was an initiative measure circulated that the Town council referred
to as the “Wal-mart Initiative Measure.” The matter appeared on the agendas for
meetings in March, April and October 2011 as the “Wal-mart Supercenter Ballot
Initiative.” When Hernandez viewed the agenda for the August 2013 meeting, he
understood that it was to discuss the action to be taken on the 2011 ballot initiative,
which had been declared null and void. Further, Hernandez believed the only action to
be taken at the meeting was to give staff direction as to what to do next. If he had known
about the actions to be taken at the meeting, he would have attended the meeting and
submitted comments.
Hernandez was concerned that Walmart paid to circumvent the “normal
administrative vetting process” by paying for the special election. He would have
requested a report be prepared before the Town adopted the resolutions and called the
special election so that the council and voters would be better informed.
On September 12, 2013, Hernandez sent a request, pursuant to the Brown Act, to
Town to cure the Brown Act violation. On October 1, 2013, Town declined to cure the
alleged violations of the Brown Act.
The ballot materials with the Initiative included language that “VOTING YES ON
MEASURE D will approve an upgraded new Walmart store and other businesses at the
corner of Dale Evans Parkway and Thunderbird Road.” The ballot argument in favor of
the Initiative included language that “Walmart proposed a new, upgraded store offering
more affordable, fresh groceries and expanded retail choices for Apple Valley’s
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hardworking families.” Prior to the vote, several articles appeared in the Victor Valley
Daily Press that the Initiative was to bring a Walmart to Apple Valley.
Walmart donated $725,000 to Apple Valley Consumers for Choice. They were a
proponent of the Initiative. The Initiative referred to the fee title holder. Walmart was
the fee title holder. The Initiative also included language that the owner of the parcel
would contact the fire district to verify current fire protection requirements. Also the
owner and/or developer was responsible for all new fire hydrants. The Initiative measure
defined “developer” as “any individual or other entity proposing any development within
the Specific Plan area.” The Initiative used language such as “developer is responsible
for,” “developer is responsible to ensure,” “developer shall,” “developer will be required
to,” and “developer must.” Developer was responsible for any fees associated with
environmental standards, permit applications, utilities, landscaping or any other
unforeseen reasons.
The Initiative and the ballot materials stated that the general plan would be
amended to add to the Town of Apple Valley Development Code the enactment of the
Specific Plan in order to allow a proposed commercial development of approximately 30
acres near the Happy Trails Highway at the intersection of Dale Evans Parkway and
Thunderbird Road.
Hernandez believed the Initiative for the Specific Plan was for the benefit of
Walmart. He read in the Victor Valley Daily Press that Walmart asked Town for the
ballot measure. He read the ballot argument in favor of the Initiative that stated a “yes”
vote would approve a new upgraded Walmart store at the corner of Dale Evans Parkway
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and Thunderbird Road. He believed the Specific Plan was for the benefit of Walmart so
it could build its new store.
Town and Walmart disputed many of the above facts and insisted an agenda
packet was available with the agenda, which included information as to the options the
Town council had to pursue development, the text of resolutions that were adopted, a
summary of the Initiative and the possibility of calling a special election. The Specific
Plan was in the agenda packet that was part of the agenda. Further, the Walmart
Initiative Measure was fully described in the agenda packet.
Walmart and Town contended that all of the information regarding the actions to
be taken at the August meeting were in the agenda packet that was available online and in
the clerk’s office. They also disputed that Hernandez looked at the agenda prior to the
meeting and that he would have attended the meeting. Town and Walmart noted that
several other citizens were at the meeting and objected to the resolutions and other action
taken by the Town council.
Town and Walmart objected to the ballot materials being relevant. They also
disputed that Apple Valley Consumers for Choice was a major proponent of the
Initiative.
Town and Walmart submitted additional facts. On May 14, 2013, Dennis Patrick
Orr filed a notice of intent to circulate the Initiative to amend the Town’s general plan in
order to establish the Specific Plan. The Initiative would provide for a retail
development, which would have multiple retailers. It received enough signatures to be
considered by the Town council.
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The agenda for the Town council meeting was posted on the Town’s Web site, at
the Town library and the Town clerk’s office with the agenda packet being available.
The agenda packet included information that the Town council could act at the meeting
by submitting the Initiative to the voters in a special election. The special election would
be held on its own and conducted by Town. At the meeting on August 13, 2013, 16
comment cards were received from the members of the public who were present to
comment on agenda item No. 16. Of those cards, 14 objected to the Initiative. Further,
eight of them requested further review of the Initiative. Four persons spoke at the
meeting objecting to agenda item No. 16.
The terms “owner” and “fee title holder” were not defined in the Initiative.
B. PROCEDURAL BACKGROUND
1. COMPLAINT
On October 15, 2013, Hernandez filed his first complaint for declaratory relief and
injunctive relief and petition for writ of mandate against Town only. He alleged one
cause of action of a violation of the Brown Act for the actions taken by the Town council
without the items appearing on the agenda. He attached the letter he sent to the Town on
September 12, 2013, requesting that the Town cure the violation within the directives of
Government Code section 54950.
Town filed a demurrer. Town noted defects in the complaint, e.g., Hernandez
failed to allege he was a California citizen to show standing and the statutory basis for a
writ of mandate. The trial court granted the demurrer on January 28, 2014, and gave
Hernandez leave to amend.
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2. FIRST AMENDED COMPLAINT
Hernandez filed his first amended complaint (FAC) on February 14, 2014, against
Town and Walmart. He alleged he resided in Town and was a registered voter. He
alleged a Brown Act violation in his first cause of action. He maintained that agenda
item No. 16 for the Town Council’s meeting read “Wal-Mart Initiative Measure” and
“Provide information to staff.” No other information appeared on the agenda.
Hernandez alleged that none of the actions taken appeared on the agenda, including the
three resolutions and the MOU. Hernandez alleged that all of the actions taken were not
regarding the Walmart Initiative but rather on what would be the Specific Plan.
Hernandez noted that Government Code section 54954.2, subdivision (a)(1),
requires posting of an agenda 72 hours before a city council meeting with a brief
description of each item of business to be discussed at the meeting, not to exceed 20
words. The city council could only discuss and take action on those items on the agenda.
Since the Specific Plan, or the new Initiative, did not appear on the agenda, no action
could be taken. Hernandez insisted he was harmed because he was denied the benefits
and protections provided by compliance with Government Code section 54954. He
would have attended the meeting or submitted comments if he knew the Initiative was
going to be discussed.
In his second cause of action, he alleged a violation of article II, section 12.
According to that section, “No amendment to the Constitution, and no statute proposed
by the electors by the Legislature or by initiative, that names any individual to hold any
office, or names or identifies any private corporation to perform any function or to have
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any power or duty, may be submitted to the electors or have any effect.” Hernandez
conceded the Initiative did not name Walmart, but it was clear to the electorate that the
beneficiary of the Initiative was Walmart.
Hernandez sought an injunction on any development because the violation of the
Brown Act rendered the actions taken by the Town council null and void. Moreover, the
Initiative should be declared unconstitutional.
Town and Walmart brought motions to strike the second cause of action and
joined in each other’s motions. Town also filed a demurrer to the FAC. Town sought
judicial notice of the Initiative, the voter information guide and sample ballot for the
November 19, 2013, special election. Walmart also filed a demurrer. Hernandez
opposed the motions to strike and demurrers.
On June 12, 2014, the trial court overruled the demurrers and denied the motions
to strike. In a written order, the trial court found Hernandez was a registered voter in
Town. It stated the Initiative was known as Measure D. It was known “colloquially as
the ‘Wal-Mart Initiative Measure.’” If upheld, it would allow for the development of a
Walmart “supercenter” on property owned by Walmart. The trial court found a violation
of article II, section 12. It found, “While Wal-Mart is not named in the Measure, it is
nevertheless identified, because the Measure confers special privileges on the ‘owner’ of
the property, which is Wal-Mart.” The Initiative referenced the “developer” and
“owner.” While the trial court noted that reference to “developer” did not necessarily
mean Walmart, “owner” was clearly Walmart. Town and Walmart filed answers to the
FAC raising affirmative defenses.
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3. MOTION FOR SUMMARY JUDGMENT/ADJUDICATION FILED
BY HERNANDEZ
Hernandez filed his Motion on November 14, 2014. Hernandez stated there were
no disputed material facts as to both of his causes of action.
Hernandez alleged that Town violated California’s open meeting law, the Brown
Act, by failing to properly list in the agenda for the Town council meeting the actions to
be taken at the August 13, 2013, meeting. Hernandez explained that there previously had
been a Walmart initiative proposed but had been dismissed by another trial court because
it named Walmart. When Hernandez got the agenda for the August 13, 2013, meeting, he
believed it was merely to advise staff what to do on the prior initiative. However, the
Town adopted the three new resolutions, including approving a special election on the
Specific Plan. Hernandez had no notice of the Specific Plan or that there would be action
taken to set up a special election. Had he been aware of the Initiative, he would have
attended the meeting or submitted comments. He was concerned about Walmart
circumventing the normal process by paying for the special election.
As for the violation of the article II, section 12, Hernandez admitted the Initiative
did not use the name Walmart but rather “identifies” Walmart. The terms “site owner”
and “developer” clearly referred to Walmart. Walmart clearly was the beneficiary
because it had spent over $700,000 to get the Initiative passed. There was not a
possibility of severing parts of the Initiative to save it. Moreover, the ballot materials
referenced Walmart.
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Hernandez submitted a declaration that he was a resident of Apple Valley and saw
the agenda prior to the meeting. He was not sure if the reference to the Walmart
Initiative was to the first initiative or some other initiative. Regardless, he did not
anticipate that any action was going to be taken at the meeting. Had he known, he would
have attended the meeting and submitted comments. He would have asked for an
additional report. There was no doubt in his mind that the Initiative benefitted Walmart.
Hernandez attached numerous exhibits to the Motion, including an article in the
Daily Press about the development that named Walmart; a contribution by Walmart in the
amount of $515,000 to Apple Valley Consumers for Choice; the ballot argument in favor
of the Initiative that named Walmart; the meeting agenda that included item No. 16,
which only stated “Wal-mart Initiative Measure” and advise staff; the meeting minutes
that outlined the resolutions that were passed and that comments were submitted agenda
item No. 16; the text of the Initiative and the resolutions mentioned at the meeting; the
original Walmart initiative from 2011; the meeting minutes from the original initiative,
which was Ordinance No. 420; Town’s response to request to cure, which included that
the agenda packet be available to all persons at the Town clerk’s office or online; which
included the Initiative and the resolutions, and there were 14 other people there to talk
about the Initiative, and that it simply chose to put the Initiative on the ballot; an article
from the San Bernardino County Sentinel about the Initiative and naming Walmart;
documents showing Walmart was the owner of the property; a draft report for the
shopping center that showed the eventual plan would have five retail spaces, one of
which would be occupied by Walmart.
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4. TOWN AND WALMART JOINT OPPOSITION TO THE MOTION
On January 15, 2015, Town and Walmart filed their opposition to the Motion
(Opposition). Both contended the agenda fully complied with the mandates of the Brown
Act and that the Initiative neither named nor identified Walmart in violation of article II,
section 12. They alleged that the agenda gave more information than required by the
Brown Act. Further, Hernandez had not shown prejudice as several other persons who
were present at the August 13, 2013, meeting opposed the resolutions and special
election, and requested further review.
Town and Walmart alleged the agenda for the meeting was posted on the Town’s
Web site, clerk’s office and library. The agenda packet prepared for the meeting included
a summary of the Initiative, the procedure that would be followed for a special election,
and the resolutions that would be passed. A hyperlink on the Web site directed a person
to the packet. At the meeting, 14 comment cards were received in regards to agenda item
No. 16. Eight of the cards asked for further review of the matter. Four persons spoke in
opposition at the meeting.
There was no Brown Act violation when there was substantial compliance.
Further, substantial compliance is a factual question. Town did nothing to thwart the
objective of the Brown Act. Hernandez had to show “meaningful prejudice to void a
public agency action.” There was substantial participation in the meeting in opposition to
agenda item No. 16.
The Initiative did not violate article II, section 12. Town and Walmart agreed that
some Town residents and others knew the commercial development included a Walmart
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store. However, this was not the question for summary judgment; rather, the question
was whether Walmart was named in the four corners of the Initiative, which it was not.
Town and Walmart argued that the Initiative should be approved unless there was
a clear and unmistakable constitutional violation. They argued the “identification” of
Walmart in extraneous materials was not a violation of the California Constitution as a
matter of law. Further, even though the Initiative used the term “developer,” it was not
just Walmart; it applied to anyone who was going to put in a store in the development.
Further, the fact that outside articles discussed Walmart, or the fact that Walmart helped
fund the Initiative, did not establish a constitutional violation. Many persons in addition
to Walmart would benefit, including the public and other stores who developed in the
area.
Finally, if the trial court were to find that certain provisions of the Initiative were
invalid, it could sever those offending provisions while leaving most of the Initiative
intact.
The Town clerk submitted a declaration that she posted the agenda for the August
13, 2013, meeting on August 8, 2013. On the Town’s Web site, a hyperlink directed the
person to the agenda packet that was also available at the Town’s library and clerk’s
office. The agenda packet included a summary of the Initiative, description of the
procedure to conduct a special election, and the three resolutions.
The agenda packet or staff report for the meeting was included as an exhibit to the
motion. It was lengthy, but labeled with the agenda item. Agenda item No. 16 included
a summary of how the Initiative had been submitted to the Town council in the
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appropriate manner. It gave three options for proceeding, which included adopting the
Initiative, submitting the Initiative to voters at a special election, or conducting more
review. The three resolutions were included. The report for agenda item No. 16 was 139
pages.
The comment cards were included as an exhibit. Several of those comment cards
included requests that the Town council send agenda item No. 16 for further review.
The minutes from the meeting were included. At the meeting, the Town manager
advised the Town council that there was an option to accept an offer from Walmart
gifting sufficient funds to cover the expense of the election. The Town manager sought
to have Town council authorize, if it chose a special election, a MOU, so that the money
could be accepted. The offer to pay for the election was made by Walmart on August 9,
2013, which was after the agenda was posted. The motion to approve the MOU was
passed by the Town council.
5. HERNANDEZ’S REPLY TO THE OPPOSITION
Hernandez filed his reply to the Opposition on January 26, 2015. Hernandez again
argued that despite the Dale Evan Specific Plan being adopted at the meeting, the agenda
called it the Walmart Initiative Measure. Further, he was not required to review the
agenda packet to find the information regarding agenda item No. 16 hidden in over 400
pages of materials. Hernandez suffered prejudice because there was no evidence that
other persons raised the issues he wanted to raise at the meeting. For example, he had
“serious concerns about Walmart making a mockery of the normal administrative process
by trying to pay money to circumvent the process.” Further, based on extrinsic evidence,
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such as press releases and the initiative in 2011, it was clear the Initiative referred to the
Walmart development and that Walmart was the beneficiary. Walmart, as the owner of
the property, was given special duties and powers.
6. RULING
The matter was heard on January 29, 2015. The trial court stated its tentative
ruling was to grant the Motion. The trial court noted first that just stating “Walmart
Initiative” on the agenda could have been confusing because of the prior initiative.
Further, the agenda did not have the resolutions listed and the actions to be taken. Even
though there was an agenda packet, it was long and difficult for a member of the public to
interpret. The other problem was the MOU was not mentioned in either the agenda or the
agenda packet. The trial court then noted that as to the resolutions, since other members
of the public commented on them, prejudice had not been shown. However, there were
no comments on the MOU and it was not “surprising” because it did not appear in the
agenda or agenda packet. The trial court believed that Hernandez had shown prejudice as
to the MOU. Therefore, the trial court would summarily adjudicate the Brown Act
violations in Hernandez’s favor.
The trial court then found that the Initiative did not name Walmart. The trial court
noted the Initiative referred to the owner of the property, which was Walmart. The court
noted, “Now, of course, Wal-Mart could sell the property to someone, but that’s a matter
that is exclusively within Wal-Mart’s decision-making ability.” Based on the newspaper
articles, everyone in the community knew that the Initiative would bring a Walmart to the
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development. The trial court concluded, “Everybody knows who Wal-Mart is and knows
what’s going on with these properties.”
Town argued that the Motion could not be granted because there were disputed
facts. Town argued the Brown Act did not require that every “single tiny little piece of
the project” be included. The trial court interrupted and stated it was important because
Walmart was offering to pay for the special election. Town complained none of
Hernandez’s documents specifically raised an issue as to the MOU. Town argued that it
was suspect Hernandez read the agenda, and claims now to be interested in the project,
but did not attend the meeting.
Hernandez responded he had alleged that he was concerned that Walmart was
paying to circumvent the normal administrative process. The public should have had an
opportunity to address how it felt about Walmart paying for the special election as it
affected the democratic process. Further, there was nothing in the record of the meeting
that someone had objected to Walmart paying for the election.
Town and Walmart also argued there was no violation of article II, section 12.
Walmart was not named in the Initiative. It was also clear the public was aware the
development would include a Walmart. Article II, section 12 did not prohibit the public
from knowing the beneficiary of an initiative. The court was required to give substantial
deference to the will of the electorate. Town and Walmart argued that the Initiative
identified different roles, such as developer and owner, but never specifically identified
Walmart. To prohibit such action in an Initiative, as the “owner” and “developer” could
always be identified, would overrule almost every land-use law. Further, “The role here
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identified in this initiative does not identify a specific entity that is not capable of being
changed.” Further, the Initiative did not require that Walmart be the developer or owner.
Hernandez argued that Walmart, as the owner of the property, had a special
privilege bestowed upon it by the Initiative. Walmart had a monopoly on what occurred
on the property. The trial court took the matter under submission.
Hernandez’s motion for summary judgment was granted by written order.
According to the written order, Town’s approval of the MOU at the August 13, 2013,
meeting was declared invalid, void, and unenforceable. A peremptory writ of mandate
was issued to command Town to set aside the approval of the MOU.1 Further, the
Initiative was declared to be invalid, void, and unenforceable under the California
Constitution. It was ordered that Hernandez would receive attorney fees and costs,
jointly and severally, from Town and Walmart at a later date to be determined. Notice of
entry of judgment was filed on March 30, 2015. Discussion of the costs and attorney fees
awarded will be discussed in detail, post.
DISCUSSION
A. STANDARD OF REVIEW
“A trial court will grant summary judgment where there is no triable issue of
material fact and the moving party is entitled to judgment as a matter of law.” (Towns v.
Davidson (2007) 147 Cal.App.4th 461, 466.) “Under the summary judgment statute, the
1Town and Walmart asked this court to take judicial notice of the proposed judgment to show the trial court’s order only found prejudice as to the lack of notice on the MOU. We find no reason to take judicial notice; the request is denied.
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moving papers must demonstrate that “material facts” are undisputed and that the movant
is entitled to judgment as a matter of law. [Citation.] The moving party’s papers are
strictly construed whereas those of the opposing party are liberally construed, with all
doubts about the granting of the motion resolved in favor of the opposing party.” (Y.K.A.
Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th
339, 352.)
B. BROWN ACT VIOLATION
The trial court granted the Motion finding that the agenda posted by Town for the
August 13, 2013, council meeting did not properly include notice that it was considering
approving the MOU accepting a gift from Walmart to pay for the special election.
Further, it found that Hernandez was prejudiced by the lack of notice as no other
community member discussed the fact that Walmart was paying for the special election at
the Town council meeting. Town and Walmart concede the MOU was not in the agenda
or agenda packet. Nonetheless, they argue Town substantially complied with the Brown
Act. Further, Hernandez failed to show prejudice in the Motion.
The Brown Act, also known as the California open meeting law, is designed to
encourage public participation in government decision making. (Bell v. Vista Unified
School Dist. (2000) 82 Cal.App.4th 672, 681.) “[T]he keystone of the Brown Act is the
requirement that ‘[a]ll meetings of the legislative body of a local agency shall be open
and public. . . .’” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 375.) “The Brown
Act begins with a forceful declaration of the Legislature’s purpose: ‘In enacting this
chapter, the Legislature finds and declares that the public commissions, boards and
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councils and the other public agencies in this State exist to aid in the conduct of the
people’s business. It is the intent of the law that their actions be taken openly and that
their deliberations be conducted openly. [¶] The people of this State do not yield their
sovereignty to the agencies which serve them. The people, in delegating authority, do not
give their public servants the right to decide what is good for the people to know and
what is not good for them to know. The people insist on remaining informed so that they
may retain control over the instruments they have created.’ ” (San Joaquin Raptor
Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, 1175 (San Joaquin).)
“ ‘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. A brief general description of an item generally need not
exceed 20 words. . . . [¶] No action or discussion shall be undertaken on any item not
appearing on the posted agenda, except [exceptions that are inapplicable here].” (Moreno
v. City of King (2005) 127 Cal.App.4th 17, 24.)
Government Code section 54960.1 provides: “(d) An action taken that is alleged
to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or
54956.5 shall not be determined to be null and void if any of the following conditions
exist: [¶] (1) The action taken was in substantial compliance with Sections 54953,
54954.2, 54954.5, 54954.6, 54956, and 54956.5.”
Here, Town and Walmart argued below that the posted agenda included an
attached agenda packet; however, Hernandez maintained that he should be able to
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identify from the posted agenda alone the items to be discussed at the meeting. We need
not resolve whether the Brown Act allows for the submission of an agenda packet with
the agenda in order to conform with the Brown Act, as here, while it is true the agenda
and agenda packet included the resolutions to be adopted and the Initiative language, it
did not include any information regarding the MOU, which was adopted by Town. The
MOU allowed the Town to accept a gift from Walmart in order to pay for the special
election and is the only claim found by the trial court to have prejudiced Hernandez. No
one at the meeting discussed the matter or commented on the MOU. In fact, it was first
proposed at the meeting as Walmart offered the gift to the Town the day after the agenda
was posted. This is troublesome as it is conceivable this was a major factor in the
decision to send the matter to the electorate.
In San Joaquin, supra, 216 Cal.App.4th 1167, the Merced County Planning
Commission posted an agenda that set forth one item of business for its upcoming
meeting, which was the potential approval of a subdivision application to divide 380.45
acres into nine parcels. “The agenda, however, failed to mention that the Commission
would also be considering whether or not to adopt a CEQA document known as a
mitigated negative declaration (MND) concerning the environmental impact of the
project.” (Id. at p. 1170, fn. omitted.) At the meeting, the Commission approved the
project and adopted the MND. (Ibid.) The appellate court found there was a violation of
the Brown Act. First, it emphasized the language in Government Code section 54954.2
that “each item of business” must be on the agenda. (San Joaquin, at p. 1176.) It also
noted that the MND was “plainly a distinct item of business, and not a mere component
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of project approval, since it (1) involved a separate action or determination by the
Commission and (2) concerned discrete, significant issues of CEQA compliance and the
project’s environmental impact.” (Id. at p. 1177, fns. omitted.)
In this case, agenda item No. 16 only listed that the “Walmart Initiative Measure”
and the direction to be given to staff would be discussed at the meeting. In the agenda
packet, Town included a summary of the resolutions that it passed and the Initiative. In
none of the documents was the “item of business” that Town council was going to accept
a gift from Walmart in order to pay for a special election to pass the Initiative.
Hernandez was given no notice that this important “item of business” was going to be
voted on at the Town council meeting.
Here, Town’s action of putting the Initiative on the ballot was properly found null
and void by the trial court as the Town council’s decision to put the Initiative on the
ballot was done so in violation of the Brown Act. We do not end our review here. It is
clear that this matter will again be considered by the Town council and another initiative
will be possibly adopted at a later date after appropriate public comment. We therefore
address whether the Initiative as written violated article II, section 12.
C. CONSTITUTIONAL VIOLATION
The trial court also concluded that the Initiative violated article II, section 12 and
declared the Initiative null and void. Walmart and Town contend that the Initiative did
not name Walmart in the four corners of the Initiative. They insist the trial court erred by
looking outside the Initiative to the ballot materials to “identify” Walmart as the
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beneficiary of the Initiative. We conclude that the Initiative as written does not violate
article II, section 12.
As previously stated, article II, section 12 provides that “No amendment to the
Constitution, and no statute proposed to the electors by the Legislature or by initiative,
that names any individual or any office, or names or identifies any private corporation to
perform any function or to have any power or duty, may be submitted to the electors or
have any effect.” “The Legislature’s chosen language is the most reliable indicator of its
intent because ‘ “it is the language of the statute itself that has successfully braved the
legislative gauntlet.” ’ [Citations.] We give the words of the statute ‘a plain and
commonsense meaning’ unless the statute specifically defines the words to give them a
special meaning. [Citations.] If the statutory language is clear and unambiguous, our
task is at an end, for there is no need for judicial construction.” (MacIsaac v. Waste
Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082-1083.)
The parties do not dispute that the Initiative did not specifically name Walmart.
However, the trial court accepted Hernandez’s argument that everyone knew that
Walmart would benefit from the Initiative. Further, the trial court found the Initiative
granted powers to the owner and developer of the property, who was clearly Walmart, as
evidenced by the ballot materials.
The Initiative provided, “As used herein, the term ‘developer’ shall mean any
individual or other entity proposing any development within the Specific Plan area.” The
Initiative provided that the developer would pay for the costs of any code enforcement
and attorney fees for any action taken concerning the approval of the Specific Plan. The
23
Initiative was being proposed so that a commercial development with a combination of
retail and service establishments would be added to the Town. The Initiative also
provided for strict rules as to the development of the area and specific rules for parking,
signage, and landscaping. There was reference to the fact that before any construction
could occur on the parcel, the “owner” was to contact the local fire department to ensure
compliance with any relevant fire protection requirement. The developer was to obtain
water for the property. The developer was also responsible for the drainage systems.
The diagrams submitted with the Initiative referred to “major tenant.” However, the
Initiative never named Walmart, and it was the sole corporation entitled to develop or
own the property.
Only a few cases have addressed article II, section 12. Pala Band of Mission
Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565 (Pala), involved the
following: “In 1994, San Diego County voters approved Proposition C, an initiative
entitled the ‘Gregory Canyon Landfill and Recycling Collection Center Ordinance.’
Proposition C amended the San Diego County General Plan (General Plan) and the San
Diego County Zoning Ordinance (Zoning Ordinance) to designate an area known as
‘Gregory Canyon’ for use as a privately owned solid waste facility. The initiative
conditioned the development of the facility on approval from various state and federal
agencies. The initiative placed the responsibility for obtaining the state and federal
permits on the ‘Applicant,’ defined as ‘Servcon–San Marcos, Inc. or its assignee or
authorized representatives.’ ” (Id. at p. 570.)
24
The Pala court first noted that “Our review of this appeal is . . . strictly
circumscribed by the long-established rule of according extraordinarily broad deference
to the electorate’s power to enact laws by initiative. The state constitutional right of
initiative or referendum is ‘one of the most precious rights of our democratic process.’ ”
(Pala, supra, 54 Cal.App.4th at pp. 573-574, citing to Mervynne v. Acker (1961) 189
Cal.App.2d 558, 563.)
In assessing whether the initiative violated article II, section 12, the appellate court
noted that most of the initiative referred to construction of the waste facility and the
necessary permits. The facility would be based on a detailed plan submitted by the
“applicant.” The Pala court concluded, “Thus, the proposition provides the applicant
(defined as Servcon) with the sole responsibility of preparing and submitting the site plan
that will ultimately define the precise nature of the project created by the proposition.
This imposes functions, powers, and duties on Servcon within the meaning of article II,
section 12.” (Pala, supra, 54 Cal.App.4th at p. 584.)
The court found that the initiative granted powers to Servcon that it did not have
prior to the voters approving the initiative. The court emphasized that although Servcon
as the owner of the property had rights prior to the proposition to develop the property, it
had new rights after the proposition. The court noted, “In practical terms, it means that
the current owner of the property is now bound by local law to follow through with that
contract and, should a third party attempt to claim a superior right, Servcon would have
the ability to rely on the terms of Proposition C to establish its exclusive right.” (Pala,
supra, 54 Cal.App.4th at p. 585, fn. omitted.)
25
The Pala court then discussed whether severing the definition of the “Applicant”
as Servcon would change the proposition. It noted that Servcon was not mentioned in the
ballot materials. It found the definition severable, because “the proposition specifically
imposes functions, powers, and duties on the ‘Applicant,’ not Servcon.” (Pala, supra, 54
Cal.App.4th at p. 587.) It would leave the “ ‘proposed operator of the facility’ ” or the
“ ‘operator of the facility’ ” would have the powers and duties. (Ibid.) The Pala court
noted in a footnote, “We note that in practical terms, our conclusion will not necessarily
change the fact that Servcon will be responsible for performing the functions of the
‘Applicant.’ This result derives from the fact that a private property owner ultimately has
the right to select the entity that may apply to operate, and operate, a business on its
property.” (Ibid. fn. 22.)
Here, the Initiative uses words including “developer” and “owner.” The Initiative
does not name or identify Walmart. As a practical matter, as in Pala, Walmart as the
owner and developer of the property would be responsible for the acts under the
Initiative. However, since Walmart could sell the property, it would have no superior
right over the subsequent owner or developer of the property. Just as in Pala, just
striking the definition of “applicant” did not change that it would be the entity
responsible. Walmart as an entity has no superior right under the Initiative. If it sold the
property, or decided that it did not want to develop the property, it would have no rights
under the Initiative superior to any other corporation or person.
The only other significant case addressing article II, section 12 is Calfarm Ins. Co.
v. Deukmejian (1989) 48 Cal.3d 805 (Calfarm), a challenge to Proposition 103.
26
Proposition 103 was an initiative measure adopted by the voters on November 8, 1988,
“making numerous fundamental changes in the regulation of automobile and other types
of insurance.” (Id. at p. 812.) It was enacted to “ensure that ‘insurance is fair, available,
and affordable for all Californians.’” (Id. at p. 813.) Some of the changes included
reducing current rates and putting restrictions on raising rates. (Ibid.) One of the
provisions stated, “Insurers are required to mail notices to policy holders informing them
they may join a nonprofit corporation to be formed to represent their interests by persons
appointed for this purpose by the Insurance Commissioner.” On appeal, the petitioners
maintained that the provision requiring notification of the formation of a nonprofit
corporation violated “the prohibition of article II, section 12 of the California
Constitution against naming or identifying a private corporation in an initiative to
perform any function or duty.” (Id. at p. 814.)
Initially, Calfarm provided a history of article II, section 12.2 In 1950, voters
adopted former article IV, section 1d, which prohibited an initiative from naming an
individual in an initiative or measure. (Calfarm, supra, 48 Cal.3d at pp. 832-833.) “The
second provision was enacted in 1964. In that year a private corporation, the American
Sweepstakes Corporation, financed a proposed constitutional amendment establishing a
state lottery and designating the sponsoring corporation as administrator of the lottery.
2 The Center for Community Action and Environmental Justice filed an amicus curiae brief insisting that this court should uphold the trial court’s order. They argue that this court should adopt an interpretation of article II, section 12 that would deem a private corporation is “identified” within the meaning of the section even if it is only from sources outside the four corners of the initiative at issue. They have provided the legislative history of now article II, section 12.
27
The Legislature countered by putting a constitutional amendment on the same ballot
specifying that any amendment “which names any private corporation . . . to have any
power or duty” shall have no effect. (Former art. IV, § 1d, subd. (b).) Significantly the
Legislature considered, but rejected, limiting this prohibition to profit-making
corporations. [Citation.] The voters defeated the lottery, but approved the prohibition on
amendments which name private corporation.)” (Id. at p. 833.) In 1966, the Constitution
Revision Commission combined the two measures into a single provision. It added the
“a prohibition against ‘identifying’ as well as ‘naming’ persons or corporations.” (Ibid.)
The voters approved the 1966 revision, which is now article II, section 12.
The Calfarm court found that Proposition 103 provided for the formation of a
nonprofit corporation, and it had the sole power to send out information to consumers;
and no other corporation could perform this function. Specifically, it concluded, “The
explicit terms of article II, section 12, demonstrate that the consumer-advocacy provision
of Proposition 103 is invalid. The constitutional prohibition bars naming or identifying a
private corporation to perform any function. The consumer-advocacy provision
‘identifies’ a particular corporation—that one which is to be formed by an interim board
of public members appointed by the Insurance Commissioner. As we explain later in this
opinion, the corporation to be formed is a private corporation. Finally, that corporation is
identified to perform a ‘function,’ to ‘advocate the interests of insurance consumers in
any forum.’ [Citation.] We see no escape from the clear and explicit language of the
state Constitution.” (Calfarm, supra, 48 Cal.3d at p. 832.) Such creation of a corporation
violated article II, section 12. (Calfarm, at p. 835.)
28
In applying Calfarm here, the legislative history “only serves to confirm our
reading of the plain language of the statute.” (MacIsaac v. Waste Management
Collection and Recycling, Inc., supra, 134 Cal.App.4th at p. 1088.) Unlike the situation
in Calfarm, here, the developer and owner of the property within the Specific Plan had
the power to develop the property and it had the duty to obtain the proper permits and
approvals. The Initiative did not assign that power to Walmart only. If we were to
extend article II, section 12 as requested by Hernandez and the amicus curiae, any land-
use initiative would be invalidated as one only would need to establish the company who
intended to develop the property or owned the property, even though the Initiative itself
makes no reference to the entity. We do not find anything in the legislative history or the
language of the statute that article II, section 12 was intended to be this broadly
interpreted. As such, we find that the Initiative does not violate article II, section 12.
D. ATTORNEY FEES
Hernandez, as the prevailing party on the Brown Act violation, was entitled to
attorney fees and costs. (Govt. Code, § 54960.5.) Town and Walmart contend
Hernandez failed to establish that $550 was a reasonable hourly attorney rate prevailing
in the community for similar work. As such, the trial court’s award for attorney fees was
too high.
1. ADDITIONAL FACTUAL BACKGROUND
Hernandez filed a motion for attorney fees under Government Code section
54960.5 and Code of Civil Procedure section 1021.5. He was seeking a total award of
$56,298.75, which included preparation of the instant motion for attorney fees.
29
Hernandez sought an hourly rate of $550 for his attorney Cory J. Briggs; $275 an hour
for Mekaela M. Gladden; $225 an hour for Anthony Kim; and $125 an hour for two
paralegals and Westlaw fees. Briggs submitted a declaration. He had been licensed to
practice law since 1995. He indicated as a principal shareholder in his firm he regularly
surveyed colleagues to find out the prevailing market rates for attorney fees in the
Southern California region. He was advised by other attorneys that for an attorney with
more than 15 years of experience in land-use issues, the average rate was between $500
to $800. Briggs spent 40.25 hours on the case. He also declared that the rate of $550 had
been approved in three other cases that he handled in San Diego County.
Town and Walmart filed opposition. They argued that Hernandez had failed to
satisfy his burden of the appropriate market rate for attorney fees for San Bernardino
County, where the matter was tried. The fees sought should be reduced because the rates
were unreasonably inflated. Hernandez could not rely on the rates in San Diego County.
The matter was heard on July 16, 2015. The trial court addressed the rate charged
by Briggs. It noted “the driving issue is what I would characterize as sticker shock that
results from Mr. Briggs’ billing rate of $550.” However, the trial court noted that this
was complex litigation. Further, all of the attorneys submitted “top flight legal work.”
The trial court did note it had not seen the rate charged “in this community for any kind
of litigation” The trial court was aware that Briggs charged this same amount in all of his
other land-use cases. Also, the trial court noted that Briggs had declared that he averaged
his rate to $550 so he would not charge different rates in San Diego County, which
actually could be higher, and the Inland Empire, which could be lower.
30
The trial court noted that the fee was higher than fees charged in San Bernardino
County. It estimated the fair rate was probably $440 an hour. However, the trial court
had to take into account the multiplier for a contingency case to which Briggs was
entitled, which was 1.25. Applying the multiplier, the fee would end up being the same
amount of $550. The trial court determined it would award the rate as given but would
not apply a multiplier. Town and Walmart argued that the rate should be reduced to $440
or less and that no multiplier should be applied. The trial court decided it would keep the
rate at $550 but not apply the multiplier.
Attorney fees were awarded in the amount of $45,053.75, which reduced the fees
for preparing the motion for attorney fees and denied the Westlaw fees.
2. ANALYSIS
“A trial court’s exercise of discretion concerning an award of attorney fees will
not be reversed unless there is a manifest abuse of discretion. [Citation.] ‘ “The
‘experienced trial judge is the best judge of the value of professional services rendered in
his court, and while his judgment is of course subject to review, it will not be disturbed
unless the appellate court is convinced that it is clearly wrong[’]—meaning that it abused
its discretion. [Citations.]” ’ [Citation.] Accordingly, there is no question our review
must be highly deferential to the views of the trial court.” (Nichols v. City of Taft (2007)
155 Cal.App.4th 1233, 1239.)
“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly rate.
‘California courts have consistently held that a computation of time spent on a case and
31
the reasonable value of that time is fundamental to a determination of an appropriate
attorneys’ fee award.’ [Citation.] The reasonable hourly rate is that prevailing in the
community for similar work.” (PLCM Group, Ins. v. Drexler (2000) 22 Cal.4th 1084,
1095.) “After making the lodestar calculation, the court may augment or diminish that
amount based on a number of factors specific to the case, including the novelty and
difficulty of the issues, the attorneys’ skill in presenting the issues, the extent to which
the case precluded the attorneys from accepting other work, and the contingent nature of
the work. [Citation.] ‘The purpose of such adjustment is to fix a fee at the fair market
value for the particular action.’” (Center for Biological Diversity v. County of San
Bernardino (2010) 188 Cal.App.4th 603, 616.)
Here, the trial court considered the prevailing rate for attorneys in San Bernardino
County. While it determined that $550 may be high, and that the actual rate was closer to
$440, it essentially imposed that rate by refusing to apply a multiplier for the fact it was a
of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial
incentives for attorneys enforcing important constitutional rights”].) The trial court did
not abuse its discretion in setting Briggs’s hourly rate of at $550 considering the entirety
of the determination of the trial court regarding attorney fees.
E. COSTS
Walmart and Town contend the memorandum of costs was filed late and should
not have been considered by the trial court. In the alternative, they argued the award
32
included an improper charge for service of the letter to Town to correct the Brown Act
violation.
1. ADDITIONAL FACTUAL BACKGROUND
Hernandez filed his memorandum of costs on April 15, 2015. The amount
requested was $5,470.86. As part of the costs, Hernandez was requesting a $350 fee for
“Process server for Brown Act cure request.”
On May 4, 2015, Town and Walmart filed a motion to strike the memorandum of
costs, or in the alternative, to tax costs. They contested some of the courier fees and the
fee for a process server to serve the Brown Act cure letter. They also contended that
pursuant to Code of Civil Procedure section 1034 and California Rules of Court, rule
3.1700(a)(1), the memorandum of costs had to be filed 15 days after the date of service of
written notice of entry of judgment. Hernandez’s counsel sent written notice of the
judgment on March 30, 2015. The Memorandum of Costs was filed on April 15, 2015; it
should have been filed on April 14, 2015. A late-filed memorandum of costs is required
to be stricken and the costs waived. Further, since Hernandez was the party who served
the notice of entry of judgment, no additional time for mailing should be afforded. Town
and Walmart also contended the cure letter could have been mailed or sent by email and
did not have to be personally served.
Hernandez filed a response that he was entitled, even as the sender of the notice of
judgment, to the mailing period. Hernandez did not address why the memorandum of
costs was filed one day after the time period expired. Hernandez also argued that the
$350 fee for service of the cure letter was appropriate to ensure that Walmart and Town
33
received the letter. Additionally, Walmart’s attorney had asked for service by courier in
the lawsuit as opposed to mail. Emails attached to the response supported that counsel
had requested overnight mail on oppositions and replies because they were not being
received by regular mail.
Town and Walmart filed a reply to the opposition that the five-day service
extension of Code of Civil Procedure section 1013, subdivision (a), for mailing of the
notice of judgment only applied to the party served.
On June 25, 2015, the trial court denied the motion to strike the Memorandum of
Costs finding that although the Memorandum was untimely filed, the defect was not
jurisdictional and Town and Walmart had failed to show prejudice. The trial court noted
courts “have broad discretion to allow relief from late filings when there is an absence of
prejudice to the opposing party.” There was no prejudice shown for the one-day delay.
The trial court did strike courier fees in the amount of $228.90, but allowed the fees for
service of the Brown Act cure.
2. ANALYSIS
The prevailing party is entitled to costs as a matter of right. (Code of Civ. Proc.,
§ 1032, subd. (b).) California Rules of Court, rule 3.1700(a)(1) provides in relevant part:
“A prevailing party who claims costs must serve and file a memorandum of costs within
15 days after . . . the date of service of written notice of entry of judgment or dismissal.”
Code of Civil Procedure section 1034, subdivision (a), provides that “[p]rejudgment costs
allowable under this chapter shall be claimed and contested in accordance with rules
adopted by the Judicial Council.”
34
Code of Civil Procedure section 1013, subdivision (a), provides that service by
mail is complete at the time of deposit in a post office or mail box, “but any period of
notice and any right or duty to do any act or make any response within any period or on a
date certain after service of the document, which time period or date is prescribed by
statute or rule of court, shall be extended five calendar days, upon service by mail, if the
place of address and the place of mailing is within the State of California. . . . This
extension applies in the absence of a specific exception provided for by this section or
other statute or rule of court.”
In Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc.
(2000) 85 Cal.App.4th 1042, the court considered whether Code of Civil Procedure
section 1013 extended a trial court’s time to grant a motion for new trial where notice of
entry of judgment was served by mail. (Westrec, at p. 1047.) The Court of Appeal held
that Code of Civil Procedure section 1013 did not extend the trial court’s time to act,
concluding, among other things, that Code of Civil Procedure section 1013 provides an
extension only to “the person served by mail.” (Westrec, at p. 1048.) The court
concluded that the relevant statutory language was ambiguous, and the legislative history
supported the conclusion that the extension of time provided by Code of Civil Procedure
section 1013 applied only to the person being served. (Westrec, at p. 1049.)
Based on the foregoing, Hernandez as the server of the notice of entry of judgment
was not entitled to the five-day extension to serve his memorandum of costs.
Accordingly, the memorandum was late. The trial court here excused the late filing
finding no prejudice to Town and Walmart.
35
“The time provisions relating to the filing of a memorandum of costs, while not
jurisdictional, are mandatory.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard
Co. (1990) 223 Cal.App.3d 924, 929.) In Sanabria v. Embrey (2001) 92 Cal.App.4th
422, the court found that the memorandum of costs was untimely and that the trial court
erred by awarding costs. (Id. at p. 426.) However, numerous other cases have held that,
“[i]n the absence of prejudice, the trial court has broad discretion in allowing relief on
grounds of inadvertence from a failure to timely file a cost bill.” (Pollard v. Saxe &
Yolles Dev. Co. (1974) 12 Cal.3d 374, 381; see Wilson v. Hinkle (1977) 67 Cal.App.3d
506, 513.)
However, in Pollard, which was relied upon in Wilson, the party seeking costs
moved for permission to file a late memorandum of costs on the ground that counsel
inadvertently failed to file a timely cost bill. (Pollard v. Saxe & Yolles Dev. Co., supra,
12 Cal.3d at pp. 380-381.) In Russell v. Trans Pacific Group (1993) 19 Cal.App.4th
1717, superseded on another ground by statute as stated in Lee v. Wells Fargo Bank
(2001) 88 Cal.App.4th 1187, 1196, the court addressed the defendant’s failure to file a
timely motion for attorney fees. It found the cost procedure requirements were
mandatory and therefore the trial court did not have discretion to disregard
noncompliance. (Russell, at p. 1726, 1728.) It then noted, “Nevertheless, the mandatory
nature of the procedural requirements does not mean that the trial court is deprived of
jurisdiction to grant relief under [Code of Civil Procedure] section 473 . . . upon a proper
showing of mistake, inadvertence, surprise, or excusable neglect.” (Id. at p. 1728.) In
Russell, the defendant did file a motion under Code of Civil Procedure section 473, but
36
only argued that the failure to timely file the motion should be excused because plaintiffs
were not prejudiced by the noncompliance. They did not address the mistake of law or
inadvertence. (Russell, at pp. 1729-1731.) The appellate court found the trial court
properly denied relief because, “absence of prejudice to the opposing party is not in and
of itself sufficient to entitle a party to relief under [Code of Civil Procedure] section 473.
Rather, the rule is that in the absence of prejudice, the trial court has broad discretion to
allow relief on one of the statutory grounds—excusable mistake, inadvertence, neglect, or
surprise.” (Id. at pp. 1730-1731.)
Here, despite Town and Walmart moving to strike the memorandum of costs,
Hernandez never addressed the mistake of law or inadvertence that rendered the late
filing excusable. The trial court never addressed such mistake, but rather concluded that
since there was no prejudice to Town and Walmart it would ignore the time restraints of
California Rules of Court, rule 3.1700. The trial court did not address if there was a
mistake of law or inadvertence by Hernandez’s counsel. Based on the fact Hernandez
never attempted to show why the memorandum of costs was filed late and there was no
finding by the trial court, the denial of the motion to strike the memorandum of costs was
erroneous as Hernandez failed to make a proper showing pursuant to Code of Civil
Procedure section 473.
DISPOSITION
The judgment is affirmed in part and reversed in part. The denial of the motion to
strike the memorandum of costs is reversed and Hernandez shall not receive costs.
Although we have concluded that the Initiative did not violate the California
37
Constitution, since the decision to place the Initiative on the ballot by the Town Council
is null and void based on the Brown Act violation, the Initiative is null and void. The
parties shall bear their own costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
38
AI Brief
AI-generated · verify before citing
Holding. The court held that the Town violated the Brown Act by failing to provide adequate notice of the MOU on its meeting agenda, rendering the special election invalid. It further held that the Initiative did not violate article II, section 12 of the California Constitution.
Issues
Did the Town violate the Brown Act by failing to provide proper notice of the MOU and other actions on its meeting agenda?
Did the Initiative violate article II, section 12 of the California Constitution by naming or identifying a private corporation?
Did the trial court err in its award of costs and attorney fees?
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“The Motion was properly granted on the violation of the Brown Act, which invalidates the special election on the Initiative.”
“we also find that the Initiative as written did not violate article II, section 12.”