Smith v. Board of Supervisors (1989) · DecisionDepot
Smith v. Board of Supervisors
California Court of Appeal Dec 18, 1989 No. No. A043213Published
Before: Benson
Opinion
BENSON, J. This is an appeal from the denial of a preliminary injunction. For the reasons set forth below we shall remand the case to the trial court.
Statement of Facts
On May 27, 1988, the Board of Supervisors (Board) of the City and County of San Francisco (City) issued a public notice that on June 27, 1988, it would hold a hearing on various reductions in medical and health services provided by the City. The notice stated that it was pursuant to Health and Safety Code1 section 1442.5 and that at the end of the hearing, the Board would adopt a finding that the proposed changes would or would not have a [866]detrimental impact on the health care needs of those affected. Attached to the notice were 11 pages providing further details on the nature of the proposed reductions.
These reductions, which totaled $17.2 million, were initiated by the may- or’s office in response to a projected budget deficit of $179 million. The mayor had asked city departments to prepare two budget reduction scenarios. The first would take place, assuming Board approval, if Proposition K (increase in the Gann spending limit) were approved. Scenario two would take place if Proposition K were rejected. The Board’s notice of May 27, 1988, reflected each of these scenarios.
This budgetary process was in accordance with the City’s charter. Under the charter, each department executive receives from every department and office within that department a budget estimate for the upcoming fiscal year. (S. F. Charter, art. VI, § 6.200.) These budget estimates are then transmitted to the mayor’s office no later than the first day of March of each year. (Ibid.) The mayor may then hold hearings on these estimates and may decrease or increase them. (Id. at § 6.203.) The mayor is then required, not later than the first day of June of each year, to transmit to the Board the consolidated budget estimates for all departments for the coming year. (Ibid.)
The charter further requires that, on or before June 30 of each year, the Board enact an interim appropriation ordinance. (S. F. Charter, art. VI, § 6.205.) However, the charter specifically provides that the “[B]oard of supervisors may decrease or reject any item contained in the proposed budget, and may without reference or amendment to the detail schedule and positions and compensations, decrease any total amount for personal services contained in the proposed budget, but shall not increase any amount or add any new item for personal services or materials, supplies, or contractual services, for any department, unless requested in writing so to do by the mayor. . . .” (Ibid.) Finally, the Board, after public hearing, and not earlier than the 15th day of July, nor later than the 1st of August of each year, must adopt the proposed budget as “submitted or as amended.” (Ibid.)
Under this scheme the mayor submitted to the Board his budget proposals. The clerk of the Board then issued the public notice of those reductions on May 27, 1988.2 Appellants, two indigent patients of county-funded health care facilities, brought an action for injunctive and declaratory relief on June 14, 1988. The action also sought a peremptory writ of mandate. They alleged that the May 27 notice did not comply with the requirements of section 1442.5; that section provides in pertinent part as follows: “Prior [867]to closing a county facility, eliminating or reducing the level of services provided, or prior to the leasing, selling, or transfer of management, the board shall provide public notice, including notice posted at the entrance to all county health care facilities, of public hearings to be held by the board prior to their decision to proceed. Such notice shall be posted not less than 30 days prior to such public hearings. The notice shall contain a detailed list of the proposed reductions or changes, by facility and service. The notice shall include, but not be limited to, the amount and type of each proposed change, the expected saving, and the number of persons affected.
“The board shall make findings based on evidence and testimony from these hearings that their proposed action will or will not have a detrimental impact on the health care needs of the indigents of the county. Such findings shall be included as part of the official public hearing record.
“Notwithstanding the board’s closing of a county facility, the elimination of or reduction in the level of services provided, or the leasing, selling or transfer of management of a county facility subsequent to January 1, 1975, the county shall provide for the fulfillment of its duty to provide care to all indigent people, either directly through county facilities or indirectly through alternative means. ” (Italics added.)
Appellants filed their motion for preliminary injunction on June 15, 1988. In support of their motion they submitted affidavits in which they stated that they could not tell from the notice how they were going to be affected by the proposed reductions. In addition they submitted an affidavit from a public health nurse employed by the City who stated that she was unable to determine from the notice what impact the budget cuts would have in her area of public health. Finally, they submitted an affidavit of E. Richard Brown, an associate professor at the University of California at Los Angeles School of Public Health. In his affidavit Professor Brown stated that, based on his extensive experience, the May 27 notice was excessively vague, and was one of the “vaguest and least informative Beilenson notices”3 that he had ever seen.
The City issued a second notice on June 21, 1988, which was posted at all county health services on that date and was distributed by mail to other interested parties on June 22. This notice provided much greater detail than the previous notice.4 On June 24, 1988, the superior court denied plaintiffs’ [868]motion for preliminary injunction. The Board proceeded with the June 27 hearing.
Discussion
Mootness
Appellants’ complaint sought to enjoin the Board’s June 27 hearing; to obtain a declaratory judgment that respondents were in violation of section 1442.5 with respect to the hearing set for June 27; and to obtain a writ of mandate requiring respondents to carry out their duties under section 1442.5. Neither this court nor the trial court could issue an injunction or writ of mandamus to prevent what has taken place. “The scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 [261 Cal.Rptr. 574, 111 P.2d 610].) Also, as framed, the issue presented in the declaratory relief action is moot. We may, however, decide a matter of public interest which is likely to recur. Although an injunction can no longer be issued to postpone the June 27, 1988, hearing (see Chase v. Brooks (1986) 187 Cal.App.3d 657, 662 [232 Cal.Rptr. 65]), we may address important issues which are of great public interest, are likely to recur, and may otherwise evade appellate review. (SeeLiberty Mut. Ins. Co. v. Bales (1973) 8 Cal.3d 712, 715-716 [106 Cal.Rptr. 21, 505 P.2d 213].)
No case has addressed the issues of whether section 1442.5 applies to San Francisco and what information must be given in the notice required by that section. There is no dispute concerning the contents of two notices given by the City and these notices are before this court. The parties agree that even if we determine the issues to be moot this action presents an issue of great public interest which should be determined by this court. Both parties argue the merits of the issues presented. It is likely the issues presented will recur and appellate review may be evaded because of the short notice period required by the statute. The construction of a statute and its application to a given set of facts are issues of law which this court may decide de novo; we are not bound by the trial court’s resolution. (San Francisco Police Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 188-189 [248 Cal.Rptr. 297]; Goddard v. South Bay Union High School Dist. (1978) 79 Cal. App.3d 98, 105 [144 Cal.Rptr. 701].) We shall proceed to decide the issues.
Whether the City Violated Section 1442.5
We must resolve two questions in determining the controversy. The first is whether section 1442.5 applies to all counties in the state or whether San [869]Francisco as a charter county is exempted from its application due to its unique budgetary process. Second, if we determine section 1442.5 does apply to San Francisco, then we must decide whether the May 27 notice complied with the statute.
The Statute
The language in dispute in section 1442.5 is found in the first two paragraphs of that section. Appellants contend the language of the section, by itself or through consideration of legislative intent, clearly demonstrates that it is to apply to all counties. Respondents assert, however, that given the unique budgetary process of San Francisco, this section does not apply to it.
In interpreting a statute our primary objective is to ascertain the intent of the Legislature and to effectuate that intent. (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 954 [196 Cal.Rptr. 45].) As our Supreme Court further stated in Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 818-819 [226 Cal.Rptr. 81, 718 P.2d 68], “‘[T]he “intention of the legislature will be determined so far as possible from the language of its statutes, read as a whole, and if the words of an enactment, given their ordinary and popular signification, are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning.” ’ ” Further, it is important to keep in mind that “ ‘ “[T]he objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in [the word’s] interpretation, and where a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted, even though the ordinary meaning of the word is enlarged or restricted and especially in order to avoid absurdity or to prevent injustice.” ’ ” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 260 [104 Cal.Rptr. 761, 502 P.2d 1049].)
With these basic rules as guides we turn to the specific words and phrases in section 1442.5 which are the subject of this dispute.
Respondents note that, unlike other counties, the Board does not have direct control over the budget. Rather, the budget is originated by the mayor, who then submits it to the Board, which in turn can reject it or make further decreases, but cannot increase it. The Board did not initiate the budget cuts which were the subject of the May 27 notice. Respondents then observe that section 1442.5 refers in several places to “their” (the Board’s) proposed action or decision to proceed, and they argue that, since the budget reductions were not the Board’s, but rather the mayor’s, this section does not apply to San Francisco.
[870]We begin our analysis of this argument by first noting that the Legislature has supplied us with guidance as to its intent. The Legislature stated that it “[R]ecognizes the importance of the health care provided by counties to indigent residents through county hospitals and health care facilities. It is the purpose and intent of the Legislature by this act to insure that the duty of counties to provide health care to indigents is properly and continuously fulfilled.” (Stats. 1974, ch. 810, § 1, p. 1764, italics added.) It would appear that it was the legislative intent to have this section apply to all counties regardless of the internal budgetary processes of those counties. This intent would be consistent with the language in section 1442 which makes it applicable to the “board of supervisors in each county.” (Italics added.) Because section 1442 deals with the same general subject as does section 1442.5 (the closing or elimination of health services), the former must be read as part of section 1442.5, evidencing a legislative intent to have section 1442.5 apply to “each” and every county. (Scott Co. v. Worker’s Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105 [188 Cal.Rptr. 537, 34 A.L.R.4th 949].)
Respondent argues that, since the Board did not initiate the reductions those reductions are not “their[s].” Solely because the Board did not initiate the reductions, however, does not mean that the Board does not act. Under the charter the Board is charged with final approval of the budget.
This situation is not unlike that in Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d 247, in which the court rejected the argument that the California Environmental Quality Act (EQA) applied only to public works projects and not projects for which a municipality issues only a permit. In rejecting this restrictive view the court noted that the “protection afforded by the EQA would be substantially diminished in an area where it may be most needed if the act were to be interpreted to cover only public works projects.” (Id. at p. 264.) The same would be the case here if we were to adopt respondents’ position.
Respondents’ argument also ignores another basic assumption of statutory interpretation; a specific statute must be considered with reference to the entire statutory scheme of which it is a part. Nothing in section 1442.5 suggests the Legislature intended to limit the counties to which the section applied. To interpret the section to exclude San Francisco would mean that the Legislature was acting by implication, and we will not presume such an action. (Rapid Transit Advocates, Inc. v. Southern Cal. Rapid Transit Dist. (1986) 185 Cal.App.3d 996, 1002 [230 Cal.Rptr. 225].)
Granted, the Legislature could have used the term “counties” rather than “board” in section 1442.5. Respondents point out that if that had been done [871]then it would have been clear that section 1442.5 applied to San Francisco, since in respondents’ view, it is the City, and not the Board, which initiates the reductions. This view would appear to be in accord with the rule that where a statute contains a different word in one section than it does in other sections or in a similar statute concerning a related subject, then a different intent is shown. (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 507 [247 Cal.Rptr. 362, 754 P.2d 708].) Both parties point out that sections 1442 and 1442.5 use the terms “board” and “county” in many different places. Further, in the Welfare and Institutions Code, the term “county” and “board” are used throughout, suggesting an appreciation by the Legislature of their respective roles.
However, to conclude from this usage that the Legislature intended to except from the statute counties such as San Francisco would not only undermine the express intent of the Legislature to apply the act to all “counties,” but would lead to absurd results. (Sinnamon v. McKay (1983) 142 Cal.App.3d 847, 851 [191 Cal.Rptr. 295].) Further, even if the word “board” were to be read in such a limited way, we would not be held to that meaning if it were contrary to the clear intent of the statute. (Ibid.) In this case, we conclude that the Legislature intended the statute to apply to all counties regardless of their budgetary process. To read section 1442.5 in any other way would undermine that intent.
Finally, we note that the first notice of May 27, 1988, stated that the hearing was to be in accordance with section 1442.5. Although respondents now argue that reference was made out of an excess of caution, in the event that section 1442.5 could be held to apply to San Francisco, we find such an argument too self-serving. The Board, even before this litigation commenced, and with knowledge of the statute, stated it was holding a hearing in accordance with the statute.
We conclude that it was the unambiguous intent of the Legislature that section 1442.5 apply to all counties, including San Francisco.
We now turn to the issue of whether the May 27 notice complied with section 1442.5.
The Notice
We begin our analysis of whether the May 27 notice met the requirements of section 1442.5 by noting that section’s recent history. As originally written the section required only “public notice.” In 1982 the Legislature amended the section to add the requirement that “The notice shall contain a detailed list of the proposed reductions or changes, by facili[872]ty and service. The notice shall include, but not be limited to, the amount and type of each proposed change, the expected saving and the number of persons affected.” (Stats. 1982, ch. 1594, § 7, p. 6305, italics added.) At the same time the notice period was reduced from 90 to 30 days. Moreover, under the section as amended, a board of supervisors could reduce service even if it found that such reduction would be detrimental. Thus, in apparent exchange for a reduced notice period and the authority to reduce services even if detriment were to be found, the requirements of the notice itself were expanded.
An amendment to a statute making a material change bespeaks a legislative intent to change the meaning of the statute. (Jordan v. Consolidated Mut. Ins. Co. (1976) 59 Cal.App.3d 26, 48 [130 Cal.Rptr. 446].) Here, the Legislature clearly made a material change in the statute. The legislative intent was to go beyond the original statutory requirements and require a much more specific and detailed form of notice. That respondents did not comply with these new requirements is apparent in comparing the May 27 notice with the specific statutory requirements and with the June 21 notice which appellant concedes meets the requirements of section 1442.5. (See Appens. A & B.)
Section 1442.5 requires that the notice include “but not be limited to, the amount and type of each proposed change, the expected saving, and the number of persons affected.” Although the May notice does tell us what the “bulk” savings will be for each category, it clearly does not detail the “amount and type of each proposed change.” The services to be reduced at San Francisco General Hospital are simply stated as “Patient Advocates”; for Potrero Hill Health Center it is “Out patient - Satellite Clinics”; again at San Francisco General Hospital the cutbacks are stated in the broad categories of “Occupational Therapy,” “Outpatient - Hospital Based Clinic,” “UC Contract,” and “Hospital Staffing.” For community public health services the areas of cutback are again broadly stated as being “Contracts” or “Lab Tests,” and although in some categories the number of positions to be cut are listed, the exact position(s) and their responsibilities is not listed. This pattern of general nondetailed listing of cutback areas are continued into the community mental health services area where again we find that cutbacks are to be in “Admin, and Program Supervision” or “Outpatient & Day Treatment.” There we are not even benefitted by the department’s assessment of how many positions will be cut let alone which positions. General and often vague statements of the type of each cutback are also found in the community substance abuse services division, the forensic services, and the public health central office where we are left to ponder the report of a $272,000 cutback in “Administrative” or a cutback in “various operating costs” in administration for the substance abuse services.
[873]By contrast, the June 21 notice provides extensive detail for cutbacks in the community public health services (CPHS) division. In that notice specific information on proposed cutbacks in contract services at the Rose Resnick Center, the Haight Ashbury Free Medical Clinic, and the Refugee Project is provided; whereas these specific facilities are not even separately named in the May 27 notice, a specific requirement of section 1442.5. Where the June 21 notice does list a service also listed on the May 27 notice, much more detail is provided. For example, the May 27 notice referenced “laboratory” cutbacks, to include three positions at a savings of $175,433, which would mean that community neighborhood clinics “that serve indigent patients will not receive all lab services,” and that “[t]his may result in fewer clinics willing to treat indigent patients.” The June 21 notice says that two microbiologists and one senior microbiologist positions will be cut, and further specific lab services would be affected, as well as which specific community clinics are served by the lab.
The June 21 notice provides much greater detail than the May 27 notice. This type of detail is the kind that we believe the statute prescribes. We also note that the May 27 notice does not provide additional detail as to San Francisco General Hospital, community substance abuse services division, forensic services division and the public health central office. Appellants correctly note that the descriptions of these cutbacks do not meet the statutory requirements.
Both parties to this appeal cite Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315 [118 Cal.Rptr. 637, 530 P.2d 605], and Carlson v. Paradise Unified Sch. Dist. (1971) 18 Cal.App.3d 196 [95 Cal.Rptr. 650], in support of their respective positions. Both cases dealt with the adequacy of school board notices under former section 966 of the Education Code, which provided that “[A]ll meetings of the governing board of any school district shall be open to the public, and all actions authorized or required by law of the governing board shall be taken at such meetings and shall be subject to the following requirements: .... [¶] (b) A list of items that will constitute the agenda for all regular meetings shall be posted at a place where parents and teachers may view the same to at least 48 hours prior to the time of said regular meeting . . . .”
This provision, however, lacks the “detailed list” requirement found in section 1442.5. Therefore, the Supreme Court’s holding in Santa Barbara, that a school board’s notice of intent to adopt a desegregation/integration plan without mentioning which schools were to be affected by the plan satisfied section 966, does not support respondents’ position that its May 27 notice satisfied section 1442.5, which contains much more stringent requirements.
[874]Carlson is also inapposite. In Carlson plaintiff sought to enjoin the defendant school board from closing an elementary school on the grounds that the board’s notice of the board hearing to discuss the closure did not specify the school to be closed and therefore violated the requirements of section 966. Carlson, like Santa Barbara, focuses on entirely different statutory language than the language at issue here.
Respondents rely heavily on a letter dated December 20, 1982, from Dr. Peter Abbott, of the State Department of Health Services, which discusses the notice requirement of section 1442.5. Dr. Abbott stated the notice should contain all “major ideas or concepts to be discussed.” He then went on to observe that “The notice should provide adequate information to allow a member of the general public (including persons who may not be knowledgeable about health systems or local government) to decide whether or not to attend the hearing and to prepare informed and relevant testimony if that person attends.” The Department’s attempt to guide counties in their compliance with section 1442.5 is welcomed. This court, however, is not bound by such opinions, the interpretation of a statute being solely within our domain. Although construction of a statute by an administrative agency responsible for its implementation is entitled to some weight (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 866 [167 Cal.Rptr. 820, 616 P.2d 802]), it cannot prevail when there is an apparent contrary legislative purpose (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 117 [172 Cal.Rptr. 194, 624 P.2d 244]). Moreover, the department of health services is not charged with the implementation of section 1442.5, and therefore the usual deference to administrative interpretation cannot be given here.
Further, where the statute requires a “detailed” notice, a notice that contains only the “major ideas or concepts” is not sufficient. This would not be the detailed notice contemplated by the statute; we refuse to accept that interpretation here.
Rather, we agree with Dr. Abbott’s comments regarding the purpose of the notice. The aim of the statute to provide for fully informed and relevant testimony was fulfilled by the detailed notice issued by the Board on June 21. Only that quality of notice allows those attending the hearing to prepare useful testimony on such an important area as reductions in medical and health services.
Nor do we agree that the May 27 notice substantially complied with the statute. Substantial compliance will suffice if the purpose of the statute is satisfied (Downtown Palo Alto Comm, for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 395 [225 Cal.Rptr. 559]) but substan[875]tial compliance means actual compliance in respect to that statutory purpose. (International Longshoremen's & Warehousemen’s Union v. Board of Supervisors (1981) 116 Cal.App.3d 265, 273 [171 Cal.Rptr. 875].) The doctrine of substantial compliance excuses technical imperfections only after the statutory objective has been achieved. (International Longshoremen’s & Warehousemen's Union v. Board of Supervisors, supra, at p. 273.)
Substantial compliance has been found where a clerk merely failed to timely stamp an order for a new trial (Dersherow v. Rhodes (1969) 1 Cal.App.3d 733, 745 [82 Cal.Rptr. 138]); where there were typographical errors (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649]); harmless misstatements in a form contract (Stasher, supra); failure to notify all property owners of a property assessment hearing where most of the owners had been notified (Downtown Palo Alto Comm, for Fair Assessment v. City Council, supra, 180 Cal.App.3d 384, 396); and where the complaint failed to name a corporate defendant although the defendant knew it was being served (Cory v. Crocker National Bank (1981) 123 Cal.App.3d 665, 671-672 [177 Cal.Rptr. 150]). Here, the statutory objective to provide for an informed public was not achieved by the May 27 notice. That notice was not merely technically imperfect; it was legally insufficient.
Moreover, the Court of Appeal for the Second District recently rejected a substantial compliance argument in Ibarra v. City of Carson (1989) 214 Cal.App.3d 90 [262 Cal.Rptr. 485], In that case proponents of a municipal initiative began circulating the initiative petition for signatures three days before they complied with the posting requirement of Elections Code section 4003. (Id. at pp. 94-95.) The city clerk refused to place the measure on the ballot because, without the signatures that were collected during the three days before posting, there were not enough valid signatures to qualify the measure for the ballot. (Id. at pp. 93-94.) The superior court denied a writ of mandate to compel placing the measure on the ballot. (Id. at p. 93.) The Court of Appeal affirmed the denial; its language is instructive, although the case dealt with a different statute: “Where the purpose of the statutory requirement is to give information to the public to assist the voters in deciding whether to sign or oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential. [Citations.] [¶] In the present case, as we have discussed, the requirement to give notice of intent prior to commencing circulation serves important purposes educating the public about the petition campaign before it begins.” (Id. at p. 99.)
Here, as in Ibarra, the statutory requirement of both timely and sufficient notice also serves to educate the public, in this case about the proposed [876]reductions in health services; it also allows interested persons enough time to prepare presentations at the hearing. The timely but insufficient notice of May 27 did not fulfill the purposes of the statute. Further, the issuance of an acceptable notice on June 21 does not constitute compliance with the statute. As pointed out long ago, “[w]here [a] statute prescribes a certain kind of notice, a court is not justified in saying that some other kind of notice would be equally effective.” (Ferri v. City of Long Beach (1917) 176 Cal. 645, 647 [169 P. 385].) We cannot substitute one notice for another where time requirements of the statute have not been met. This is the case even if appellants were aware of the detailed notice prior to the hearing. (See Todd v. City of Visalia (1967) 254 Cal.App.2d 679, 684 [62 Cal.Rptr. 485].)
We therefore conclude that the May 27 notice did not meet the requirements of section 1442.5. The June 21 notice, to the extent it supplemented the May 27, notice, was statutorily sufficient, but it was untimely. It cannot cure the defects in the original notice.
Disposition
We remand this case to the trial court with directions to dismiss the action on the ground that it is moot. Appellants are awarded their costs on appeal.
Kline, P. J., and Peterson, J., concurred.
[877]Appendix A
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[894]Appendix B
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All further statutory references are to the Health and Safety Code, unless noted otherwise.
The notice and attachments thereto are attached as Appendix A to this opinion.
Section 1442.5 is commonly called the Beilenson Act, after its author.
This notice is attached as Appendix B to this opinion. Appellants concede that this notice complied with the statute as to specificity, but they argue that it was untimely and therefore ineffective.
AI Brief
AI-generated · verify before citing
Holding. Health and Safety Code section 1442.5 applies to all counties, including charter counties like San Francisco, and requires a detailed notice of proposed health service reductions that the initial notice in this case failed to provide. Because the underlying controversy is moot, the case is remanded with directions to dismiss.
Issues
Does Health and Safety Code section 1442.5 apply to the City and County of San Francisco?
Did the May 27 notice comply with the detailed notice requirements of section 1442.5?
Is the action moot given that the hearing has already occurred?
Disposition. remanded
Quotations verified verbatim against the opinion
“It was the unambiguous intent of the Legislature that section 1442.5 apply to all counties, including San Francisco.”
“The timely but insufficient notice of May 27 did not fulfill the purposes of the statute.”
“We remand this case to the trial court with directions to dismiss the action on the ground that it is moot.”