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Court of Appeal, Second District, Division 2, California.

Ernani BERNARDI, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Nos. B090577, B090579.

Decided: September 06, 1995

Barbara S. Blinderman and Jeffrey S. Cohen, Beverly Hills, for Plaintiff and Appellant. James K. Hahn, City Attorney, Dov S. Lesel, Assistant City Attorney, Kane, Ballmer & Berkman, R. Bruce Tepper, Jr. and June Ailin, for Defendants and Respondents.

Appellant Ernani Bernardi has filed several actions alleging violations of the Brown Act.  (Gov.Code, § 54950 et seq.)   The present appeal involves two of those actions, which we have consolidated in this appeal.   We dismiss on the grounds of mootness the appeal from the denial of Bernardi's petition for a writ of mandate (B090579) regarding the purportedly misleading nature of a Los Angeles City Council (hereinafter, City Council) agenda item.   The denial of his petition for a writ of mandate (B090577) challenging two closed meeting sessions, one of the Housing and Community Redevelopment Committee of the City Council (hereinafter, the HCR Committee) and one of the Community Redevelopment Agency of the City (hereinafter, the Agency), is affirmed.   We affirm on the basis of the pending litigation exception to the open meeting requirement (Gov.Code, § 54956.9) in the Brown Act.


In 1975, Bernardi and others initiated litigation against the City of Los Angeles (hereinafter the City), the Agency and other municipal entities.   The litigation sought to invalidate the Agency's Central Business District Redevelopment Project (hereinafter, the Redevelopment Project).   In 1977, a stipulated judgment was entered which, in pertinent part, limited the amount of tax increment which could be allocated to the Agency from the Redevelopment Project (the so-called “Cap”), and prohibited the Agency from incurring any debt repayable from a tax increment connected with the Redevelopment Project after July 19, 1995.   With ensuing fiscal changes from Proposition 13 and structural changes in the Community Redevelopment Law, in 1988 and 1989 public meetings were held to discuss whether to attempt to lift the Cap imposed by the stipulated judgment.   Bernardi sought to recover from the City and the Agency attorney fees incurred for his attorneys monitoring post-judgment compliance with the stipulated judgment.   The motion for attorney fees was denied without prejudice.

Thereafter, in late 1993, according to Bernardi, several local agencies attempted to create and enter “pass-through” agreements among various taxing entities and the Agency, which would allow the Agency to attempt to violate the spending Cap, raising the spending limit of $750 million agreed to in the stipulated judgment to $7.1 billion.   Bernardi further asserts that since the type of “pass-through” agreements contemplated were to become illegal as a result of legislation effective January 1, 1994, the Agency had an incentive to consummate the agreements quickly and to discourage public debate and opposition.   Hence, alleged Brown Act violations arose as to the notice of meeting agenda and the open meeting requirements.

Specifically, Bernardi complains about a November 8, 1993, meeting of the City Council's Housing and Redevelopment Oversight Committee (hereinafter, the HRO Committee) and a November 10, 1993, meeting of the Board of Commissioners of the Agency.   Both meetings were held in closed executive session and, as indicated by their posted agenda, were for the purpose of discussing options with respect to modifying the Cap imposed by the stipulated judgment.   Bernardi further complains about the adequacy of a posted agenda for the November 19, 1993, City Council meeting which included a notice of a closed session to confer with counsel regarding further proceedings as to the stipulated judgment.1  However, rather than a closed session with counsel, an open meeting with public input was held on November 19, at which a motion passed authorizing the City's administrative officer and legislative analyst to discuss with county and school district officials the possibility of lifting the Cap and a related restructuring of the debt service fund, and to report back to the City Council on those discussions.2  On December 22, 1993, the City Council, in open session and after receiving public input from persons speaking before the council, considered and approved proposed agreements with the county, the school district and other entities which provided for cooperation in seeking to modify the stipulated judgment to lift the Cap.

 On December 27, 1993, Bernardi filed a petition for a writ of mandate alleging violations of the Brown Act's open meeting requirement as to the November 8 and 10 closed session meetings (during which no actions were taken).   The trial court denied the petition.   Bernardi appeals and seeks (1) an order directing the City and the Agency “to avoid any actions taken in secret,” 3 and (2) release of tapes and records of the closed session meetings of November 8 and 10.   As to the second matter in this consolidated appeal, on January 27, 1994, Bernardi filed a petition for a writ of mandate alleging a violation of the Brown Act by the misleading nature of the November 19, 1993, agenda item which purportedly did not give the public fair notice of what action was intended at the meeting.   The trial court denied the petition, and Bernardi appeals seeking to void the action taken by the City Council on November 19 (i.e., the approval of authorization of discussions with the county and school district as to lifting the Cap).


I. The November 8 and 10, 1993, Closed Session Meetings (Case No. B090577)

 The Brown Act's pending litigation exception to the requirement of an open meeting (Gov.Code, § 54956.9;  see Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373–374, 380, 20 Cal.Rptr.2d 330, 853 P.2d 496) permitted the closed sessions of the meetings in question.   Contrary to Bernardi's contention, the entry of the stipulated judgment in 1977 involving the Cap does not preclude the existence of post-judgment legal matters as to that stipulated judgment.   Indeed, Bernardi himself treated the stipulated judgment as pending litigation when in 1988 and 1989 he sought attorney fees for monitoring the judgment.   Post-judgment proceedings regarding which a local agency should be permitted to consult privately with legal counsel include the following examples:  making or opposing a motion to strike or tax costs (Cal.Rules of Court, rule 870(b));  making or opposing a motion for attorney fees (Code Civ.Proc., § 1021.5;  Gov.Code § 54960.5);  and filing a motion for an order permitting payment of a judgment in installments (Gov.Code, § 970.6).   Similarly, the modification of a stipulated judgment, as was under consideration in the present case, should be initiated by way of motion rather than filing a new action.  (See, e.g., Welsch v. Goswick (1982) 130 Cal.App.3d 398, 402–403, 181 Cal.Rptr. 703.)   We hold that such a motion would constitute a post-judgment proceeding and entail pending litigation, within the meaning of the Brown Act.

 The agendas for the November 8 executive session of the HCR Committee 4 and the November 10 executive session of the Agency Board both cited the statutory pending litigation exception and specified intended discussions as to options regarding modification of the Cap imposed by the stipulated judgment.   Both agenda items also specifically referred to the stipulated judgment by case name or case number.   Accordingly, the stipulated judgment was pending litigation, within the meaning of the Brown Act, for the purpose of seeking the specified judicial modification of the judgment.   The petition for a writ of mandate was properly denied.

II. The November 19, 1993 Agenda Item (Case No. B090579)

It is unnecessary to address whether the posted agenda item noting a closed session conference with counsel as to the stipulated judgment was misleading because the City Council allegedly had no intention of consulting with counsel (and there was purportedly no pending litigation).   No executive session ensued.   Rather, a public proceeding ensued at which a motion was passed to authorize discussions regarding the lifting of the Cap and a related restructuring of the debt service fund, and to have the city administrative officer and chief legislative analyst report back as soon as possible to the City Council on the results of those discussions with the county and the school district.

 On appeal, Bernardi seeks as relief the voiding of the passage of the November 19, 1993, motion which authorized discussions as to the “possibility” of certain actions and required a “report” as to those “discussions.”   Not only has the report required by the motion already occurred, but action based in part upon the report has already been taken.   Bernardi admits that the November 19 motion was a “critical” step which resulted in action on December 22, 1993, when the City Council in open session and with public input considered and approved proposed agreements with several municipal entities to cooperate in attempting to modify the stipulated judgment and to lift the Cap.   It is therefore apparent that voiding now the passage of the November 19 motion, almost two years after the fact, would be a useless exercise.   Voiding the passage of this preliminary motion could not retract the discussions and report which ensued, and Bernardi does not suggest that it would invalidate any actions thereafter taken by the City Council.   Moreover, even at the time Bernardi filed this petition for a writ of mandate in the trial court (January 27, 1994), the relief requested on appeal was essentially meaningless.   Accordingly, we dismiss the appeal from this matter as moot.5  (Cf. Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10–11, 244 Cal.Rptr. 581 (appeal moot when act sought to be enjoined has been performed).)


The judgment in Case No. B090577 is affirmed.   The appeal in Case No. B090579 is dismissed.

BOREN, Presiding Justice.

FUKUTO and NOTT, JJ., concur.