McDONALD, J.
After defendants Valley Center Pauma Unified School District and its board of trustees (together District) partially demolished some structures on land the school district owned, plaintiff Civilian Conservation Corps Camp Interest Group (Petitioner) filed this action alleging two claims. The first claim, which purported to state a cause of action under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), alleged District should have complied with CEQA before partially demolishing the buildings but did not do so. The second cause of action, which purported to state claims under the Brown Act (Gov. Code, § 54950 et seq.)
District demurred to Petitioner's first amended complaint and petition (FAC) and the trial court sustained the demurrer without leave to amend. Petitioner asserts the ruling on the demurrer was erroneous as a matter of law, and denying leave to amend to cure any defects was an abuse of discretion.
In 2011, District acquired land from the California Department of Forestry (property). The property is adjacent to an elementary school under District jurisdiction, and had seven Depression-era buildings constructed on it that had some historic value.
Around February 5, 2013, District's chief business officer, Ms. Kimball, received a structural assessment for the buildings that concluded all of the buildings would have questionable stability during a major seismic event and could contain lead-based paint, and six of the seven buildings presented significant health and safety risks because of possible biohazard conditions and compromised structural integrity. On February 8, 2013, District also hired a firm to perform a hazardous building materials evaluation and, on February 13, 2013, District's Superintendent Obermeyer accepted a proposal for a contract with AAA Demolition to demolish the buildings but to leave the foundation slabs in place. Before demolition began, District received the results of the hazardous building materials evaluation that determined the buildings had asbestos and lead-based paints, and provided those results to AAA Demolition, which relayed the report to an abatement company for pricing. On February 28, District retained a company to transport "non friable asbestos waste" and obtained confirmation the electric meters at the site had been removed and service had been shut off.
At a March 14, 2013, public meeting of District's Board,
On March 18, 2013, over Petitioner's objections, District began demolition efforts. By March 22, 2013, the partial demolition of the buildings was completed and the materials had been removed from the site. However, the foundations and footings, which were not identified as hazardous, were left in place.
Petitioner filed its initial petition and complaint for injunctive relief in April 2013 alleging, as its first cause of action, that District violated CEQA because it undertook a project, which it defined as all approvals and work involved in the demolition of the buildings, without conducting the requisite CEQA review for the project.
District demurred to the FAC. It argued the CEQA claim should be dismissed as moot because the demolition was complete and the physical changes to the environment were irreversible. It argued the Brown Act claims should also be dismissed because (1) the demolition was within the Superintendent's purview, which did not require a Board directive, and therefore the directive had no prejudicial impact; and (2) even had a Board directive been required, nullifying the Board's directive would be a purely advisory opinion and would have no effect because the demolition was complete.
Petitioner opposed the demurrer, arguing the CEQA claim was not moot because (1) the demolition was not completed because the building foundations were still in place, and (2) the demolition was merely part of a larger contemplated development project that would require CEQA review because District was considering placing a "Sports Field Project" on the property. Petitioner argued the Brown Act claim remained viable because it was prejudiced, asserting the Board's secret approval of the demolition prejudiced Petitioner by depriving it of its right to participate in the decisionmaking process.
District's reply asserted Petitioner's arguments were insufficient to demonstrate the causes of action stated in the FAC were not moot. District noted that Petitioner's pleaded CEQA claim defined the "project" as the demolition of the structures and, because judicially noticeable facts showed that project was complete, Petitioner had not overcome District's mootness argument. District then noted that Petitioner, apparently recognizing its pleaded CEQA claim was moot, was seeking to avoid the mootness argument by claiming the demolition was a discrete part of a larger project that began when District acquired the property in 2011 to build the sports field project. District argued that claim was not pleaded but, even had Petitioner asserted that claim, it would have been subject to demurrer for the independent reason that it would have been time-barred. As to the Brown Act claims, District noted Petitioner had not even addressed a fatal flaw raised in District's demurrer—that nullification of the Board's directive based on inadequate notice of the proposed action would be a purely advisory opinion and would have no effect because the demolition was already complete—and that Petitioner's other Brown Act claims were factually defective.
The court sustained District's demurrer without leave to amend. As to the Brown Act claim, the court ruled there were insufficient facts alleged, or proffered during oral argument, to support judicial intervention under the Brown Act. As to the CEQA claim, the court concluded the project alleged in the complaint (the demolition of the buildings) had been completed. The court also noted, to the extent any other project is subsequently pursued on the property, District would likely be required to comply with CEQA, and this subsequent CEQA process would be the proper forum for discussing the impacts of (and possible mitigation for) the already completed demolition of the alleged historical buildings. Accordingly, the court sustained District's demurrer without leave to amend.
The Legislature enacted CEQA to "[e]nsure . . . the long-term protection of the environment. . . ." (Pub. Resources Code, § 21001, subd. (d).) "The foremost principle under CEQA is that the Legislature intended the act `to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.'" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390.)
CEQA and its implementing regulations "have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations." (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112 (Davidon Homes).) The first tier requires the agency to determine whether or not CEQA applies to the proposed activity or whether the project is exempted by statute or the Guidelines.
In cases in which CEQA applies to the project and there is no exemption, "the agency must proceed with the second tier and conduct an initial study. [Citation.] If the initial study reveals that the project will not have a significant environmental effect, the agency must prepare a negative declaration, briefly describing the reasons supporting that determination. [Citations.] Otherwise, the third step in the process is to prepare a full environmental impact report (EIR) on the proposed project." (Davidon Homes, supra, 54 Cal.App.4th at p. 113.) The term "project" is given a broad interpretation (RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1203), and whether an activity constitutes a "project" is a question of law in the first instance. (Ibid.)
It has been repeatedly observed the EIR is the "heart of CEQA." (Guidelines, § 15003, subd. (a); Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392; Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556, 570.) The purpose of the EIR "is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made." (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) When a public project requires an EIR prior to approval, the public agency may not approve the project without first completing CEQA review or take actions that "give[] impetus to a planned or forseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project." (Guidelines, § 15004, subd. (b)(2).) However, approval "cannot be equated with the agency's mere interest in, or inclination to support, a project, no matter how well defined." (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 136.)
Because this matter arises from a judgment entered after the court sustained District's demurrer without leave to amend, "[w]e apply well-established rules of review. `A demurrer tests the legal sufficiency of the complaint. [Citation.] Therefore, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." [Citation.] The trial court exercises its discretion in declining to grant leave to amend. [Citation.] If it is reasonably possible the pleading can be cured by amendment, the trial court abuses its discretion by not granting leave to amend. [Citation.] The plaintiff has the burden of proving the possibility of cure by amendment.'" (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)
Petitioner's FAC asserted the project, which it defined as all approvals and work "related . . . to the approval of demolition and demolition of historic buildings," was required to have CEQA review, and District did not comply with CEQA before approving and/or commencing the project. Petitioner sought a writ of mandate compelling District to vacate and set aside approval of the project and to prepare and certify a legally adequate EIR for the project.
We conclude the trial court correctly sustained the demurrer to Petitioner's pleaded CEQA claim because CEQA does not allow for review of a completed project.
Petitioner argues the court erred in concluding it could grant no effectual relief because, under cases such as Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 and Woodward Park, supra, 77 Cal.App.4th 880, a court may require project modification, reconfiguration or restoration of the site to its original condition. However, in Bakersfield Citizens, the court examined a project only partially built, rather than one now fully complete.
Petitioner also relies on the statement in Kriebel v. City Council (1980) 112 Cal.App.3d 693, in which this court rejected a motion to dismiss an appeal for mootness where work on a project had begun despite a timely appeal challenging the approval of the project (id at p. 707), to argue the trial court erred in concluding Petitioner's action was moot. Kriebel is distinguishable for a pivotal reason: the project was only partially built. In Kriebel, the owners of property next to a proposed subdivision development sought a writ of mandate to set aside approval of the project by the city council, which the trial court denied, and a timely appeal was filed but the developer began work on the project and then moved to dismiss the appeal upon the grounds of mootness. This court, although affirming the trial court's judgment, denied the motion to dismiss for mootness and rejected the claim that approval and recording of the final subdivision map or completion of grading and storm drains on the site mooted the appeal (id. at pp. 697, 701-707), reasoning that, although the developer was at liberty to proceed with processing the subdivision map and to commence work, such "land improvement work accomplished pending the appeal are . . . at the risk of the applicant." (Id. at p. 707.) Because the project in Kriebel was not complete, but had only proceeded as far as grading the hillside, the project in Kriebel could still have been either halted or subjected to substantial mitigation measures. (Accord, Tyler v. Cuomo (9th Cir. 2000) 236 F.3d 1124, 1137 [rejecting mootness challenge to project where "changes can still be made to help alleviate any adverse effects"].)
Here, the project challenged by Petitioner's FAC was complete, and no changes to the demolition could alleviate any adverse effects from the demolition, and therefore Kriebel is inapposite. We conclude the trial court correctly ruled that, as a matter of law, Petitioner's FAC did not state facts upon which any relief might effectively be granted, and therefore correctly sustained without leave to amend District's demurrer to Petitioner's CEQA claim.
Petitioner's Brown Act claim first asserted District took action on an item not adequately appearing on the posted agenda. Petitioner's Brown Act claim also alleged, on information and belief, that District's Board approved the demolition without first conducting an open and public meeting, and that Board considered documents without providing those documents to the public for inspection. The court ruled there were insufficient facts alleged, or proffered during oral argument, to support judicial intervention under the Brown Act.
The Brown Act is designed to encourage public participation in government decisionmaking. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 681.) The Brown Act's provisions include several requirements that Petitioner claimed were violated by District in connection with Board's March 14, 2013, directive. Petitioner alleged District violated the provisions that: (1) an agenda must be posted at least 72 hours before a regular meeting and forbids action on any item not included on that agenda (§§ 54954.2, subd. (a) & 54954.3); (2) a majority of the elected members of the governing body may not, outside of an authorized meeting, discuss, deliberate about, or take any action on any item of business within the subject matter jurisdiction of the legislative body either directly or through intermediaries (§ 54952.2); and (3) any writings distributed to all or a majority of the members of a legislative body in connection with a matter to be discussed or considered at an open meeting must be made available for public inspection upon request (§ 54957.5, subd. (a)).
Petitioner argues the trial court erroneously sustained the demurrer, based on its determination there were insufficient facts alleged or proffered to support judicial intervention under the Brown Act, because the trial court misinterpreted the remedies available to Petitioner. Petitioner argues on appeal its FAC adequately pleaded a claim on which a court could (1) issue an injunction under section 54960, subdivision (a), to compel District to comply with sections 54952.2, 54953 and 54957.5 in the future, and (2) order Board to audio record its closed sessions under section 54960, subdivision (b).
Section 54960 provides that an interested person may commence an action "by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body . . . or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, . . . or to compel the legislative body to audio record its closed sessions as hereinafter provided." (Italics added.) In Regents of University of California v. Superior Court (1999) 20 Cal.4th 509 (Regents), our Supreme Court evaluated an analogous statutory scheme and concluded such a scheme is designed to stop current violations or prevent future violations, and is not designed to remedy past actions. (Id. at pp. 522-526.)
Petitioner relies on numerous cases, including California Alliance for Utility Safety and Education v. City of San Diego (1997) 56 Cal.App.4th 1024 (CAUSE) and Common Cause v. Stirling (1983) 147 Cal.App.3d 518, to argue that any dispute over the agency's duties under the Brown Act is sufficient evidence of a threatened future violation of the Brown Act to support an action for declaratory and injunctive relief even where, as here, the declaratory and injunctive relief action would have no impact on prior actions of the agency. (CAUSE, at p. 1030; Common Cause, at p. 524.) However, in Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, this court recognized that Regents called into question the vitality of Common Cause and CAUSE but concluded the holdings in Common Cause and CAUSE remained viable after Regents" to the extent that the showing of past violations that was made related specifically to present or future ones." (Shapiro, at p. 916, fn. 6.) Thus, in Shapiro, this court concluded a claim under section 54960 was viable when there is a showing of a pattern of past conduct that provided an evidentiary basis to support the allegation that the legislative body would continue violating the Brown Act.
We distill from these authorities the requirement that, to state a viable claim for declaratory and injunctive relief under section 54960, the plaintiff must allege the legislative body is engaged in ongoing violations of, or the legislative body threatens to violate in the future, the provisions of the Brown Act, and to support such allegations with competent allegations of fact demonstrating either that the legislative body has a historical pattern of violating Brown Act provisions or that the legislative body has an ongoing practice or policy that transgresses Brown Act provisions. Measured against this standard, we conclude the trial court correctly ruled Petitioner's FAC did not allege sufficient facts, nor did Petitioner proffer during oral argument any additional facts that would support judicial intervention pursuant to the provisions of section 54960.
The FAC did specifically allege the notice of agenda for the March 14, 2013, meeting was inadequately detailed as to the item addressing the property, in violation of sections 54954.2 and 54954.3 of the Brown Act. However, Petitioner did not allege any other facts demonstrating Board had a historical pattern of providing inadequate details in its notices of agenda, or any facts that the Board had an ongoing practice or policy of providing inadequate details in its notices of agenda.
Petitioner's FAC also alleged Board violated various sections of the Brown Act by issuing its directive (to move forward with the demolition) without first conducting an open and public meeting. This allegation necessarily rests on Petitioner's allegation, made solely on information and belief, that Board discussed and/or took action prior to and outside of the March 14 meeting to develop a collective concurrence in violation of sections 54952.2, 54953 and 54954.2.
Although the FAC does allege district staff took steps to evaluate the structural integrity of the structures and to hire contractors in preparation for the demolition, it is devoid of any facts suggesting any Board member was involved in (or was even apprised of) the steps taken by staff, much less any facts that could lead a plaintiff to believe as true the allegation that a group of Board members secretly met in advance of the March 14 public meeting to develop agreement on the course of action to be taken. Because only the latter type of conduct comprises a "meeting" within the ambit of the Brown Act (see Frazer v. Dixon Unified School Dist., supra, 18 Cal.App.4th at pp. 796-798 [no evidence of any type of "collective deliberation" by Board members regarding the memoranda received from staff; one-way transmission to and solitary review by Board members of background materials relating to issue not within the ambit of open meeting laws]), Petitioner's FAC contains no competent allegations to support its claim that any violation of the open meetings laws occurred.
More importantly, Petitioner did not allege any facts demonstrating Board had a historical pattern of engaging in secret meetings, or any facts that Board had an ongoing practice or policy of conducting secret meetings in advance of open meetings to reach collective concurrences on the action to be taken. To the extent Petitioner's claim for declaratory and injunctive relief under section 54960 rested on alleged violation of sections 54952.2, 54953 and 54954.2 of the Brown Act, it was inadequate and the trial court correctly ruled it did not state a claim for declaratory or injunctive relief to prevent violations or threatened violations of the Brown Act.
Petitioner's final claim for relief under section 54960 is based on its claim, again made on information and belief, that certain written materials (specifically, the structural evaluation, the hazardous materials evaluation, and the contracts relating to the demolition) were provided to Board members at the March 14 meeting but were not made available to the public at the meeting, in violation of section 54957.5. There are several reasons why this allegation does not adequately state a claim for relief under section 54960. First, the allegation that documents were in fact distributed to Board members at the March 14, 2013, meeting appears to be contradicted by the minutes of that meeting annexed to the FAC,
Finally, and most significantly, Petitioner did not allege any facts demonstrating Board had a historical pattern of declining to make available to the public written materials provided to Board members, or any facts that Board had an ongoing practice or policy of declining to make available to the public written materials provided to Board members. To the extent Petitioner's claim for declaratory and injunctive relief under section 54960 rested on an alleged violation of section 54957.5, it was inadequate and the trial court correctly ruled it did not state a claim for declaratory or injunctive relief to prevent violations or threatened violations of the Brown Act.
The judgment is affirmed. District is entitled to costs on appeal.
HUFFMAN, Acting P. J. and O'ROURKE, J., concurs.
