Filed 10/26/ 22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

G.I. INDUSTRIES,

Plaintiff and Appellant,

v.

CITY OF THOUSAND OAKS et al.,

Defendant s and Respondent s ;

AR AKELIAN ENTERPRISES, INC.,

Real Part y in Interest and Respondent

. 2d Civ. No. B317201 (Super. Ct. No. 56

- 2021

- 00554581

- CU

- WM

- VTA ) (Ventura County)

The Ralph M. Brown Act (Brown Act), (Gov. Code, 1 § 54950, et seq.) requires public agencies to conduct their busin ess in the open with adequate notice to the public. Here, a local agency
f ound that a project is exempt from the California Environmental Quality Act (CEQA) (Pub. Resource s Code § 21000, et seq.).

1 All further references are to the Government Code unless otherwise indicated.2 Section 54954.2 of the Brown Act, requires this CEQA
fi nding of exemption to be listed on the agency’s agenda for its public meeting

. It was not. The trial court e rred when it entered judgment after sustaining demurrer s without leave to amend brought by a local agency and the real party in interest

. We

reve rse. FACTS
G.I

. Industries, 2 doing business as Wa ste Management (WM)

, provided solid waste management for the City of Thousand Oaks (City). The City was considering entering into a new exclusive solid waste franchise agreement with Arakelian Enterprise s, Inc. doing business as Athens Services (Athens). The agreement is for

a 15

- year term beginning January 1, 2022, and ending December 31, 2036. On March 4, 2021, the City pos t ed an agenda for a regular meeting of the City coun ci l to be held on March 9, 2021. An item on the agenda stated that the City would consider awarding the franchise agreement to Athens, along with a note that the City’s
staff recommended approval. One item was not listed on the City’s agenda, that the City would also consider whet her the agreement is exempt from CEQA. Nor did the agenda include the City staff’s recommendation that the City find the agreement to be categorically exempt. On March 5, 2021, WM submitted a comment letter to the City raising WM’s concern that the City had not considered potentially adverse environmental impacts if the new franchise agreement were approved.

2 We deny appellant’s request for judicial notice filed February 16, 2022.3 It was not until 3:30 p.m. on March 9, 2021, the day of the City coun ci l meeting, that a supplemental item was posted giving
notice of the staff’s r ecommendation that the City find the agreement to be exempt from CEQA. The pos t ing included a supplemental information packet with the City staff’s recommendation for the exemptions. The staff found the franchise award to be categorically exempt pursuant to the CEQA Guidelines 3 under the “existing facilities” and “actions by regulatory agencies for the protection of the environment” exemptions. (Guidelines

, §§ 15301, 15308.) The staff also found the franchise award exempt under the so

- called “common

- sen se” exemption. ( Id.

, § 15061 (b)(3).) City Council Meeting During the council meeting representatives of Athens stated that the vehicle and hauling yard for the project might be located in Santa Paula, Sun Valley or “ other options. ” The staff report did not consider the potential impacts of the use of the
alternative sites which also involve trucks hauling trash throughout the City. The City attorney stated, “ There’s been a lot of questions
raised about the environmental impacts of this. ” Nevertheless, the City attorney recommended adopting the staff’s finding of CEQA exemptions. A council member moved to approve the Athens franchise agreement. The mayor suggested the council member include in the motion a finding that the project is exempt from CEQ A. The council member agreed. The City c ouncil adopted the motion as amended to include the CEQA exemptions. The minutes of the

3 All references to Guidelines are refer ences to tit le 14 of the Cal ifornia Code of Reg ulation s , section 15000 et seq.4

meeting reflect separate actions by the council in approving the agreement and in finding it exempt from CEQA. The City then filed a notice of exemption with the county clerk on March 15,
2021.
Cure and Correct Letter As required by section 54960.1, subdivision (b)

, prior to the

commencement of litigation under the Brown Act, WM sent the City a “cure and correct” letter. The letter stated in part: “The City Council violated the Brown Act on March 9, 2021 by voting to adopt a Notice of Exemption (NOE) pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) prior to adopting the F ranc hise Agreement and without adequate notice to the public as a part of the posted agenda for the meeting. “The Brown Act requires a posted agenda to include a description of each item of business to be considered at a legislative body’s meeting at least 72

- hours prior to the meeting. (Gov. Code, § 54954.2, subd. (a)(1).)” The City did not respond to the letter within 30 days, which is deemed a decision not to cure or correct the challenged action. (§ 54960.1, subd. (c)(3).)
Procedure WM petitioned the t rial court for a writ of mandate directing the City to vacate both its approval of the franchise agreement and its finding that the project is exempt from CEQA. Athens was joined as the real party in interest. The petition alleged that the City violated section 54954.2 of the Brown Act by voting to adopt the CEQA exemptions without including CEQA exemptions as an agenda item at least 72 hours prior to the City

c ouncil meeting.5 The City and Athens demurred to the complaint. The trial
court sustained the demurrer without leave to amend. The court agreed with WM that the CEQA exemption is a n item of business
separate from approval of the franchise agreement. T he court
also concluded that because CEQA does not require a public hearing for an exemption dete rmination, the Brown Act does not apply.
DISCUSSION
I. Standard of Review The function of a demurrer is to test whether, as a matter of law, the facts alleged in the complaint state of a cause of action under any legal theory. ( Intengan v. BAC Home Loans Servicing
LP (2013) 214 Cal.App.4 th 1047, 1052.) We assume the truth of all facts properly pleaded, as well as facts of which the trial court properly took judicial notice. ( Ibid .) But we do not assume the truth of contentions, deductions, or conclusio ns of law

. ( Ibid .)
Our review of the trial court’s decision is de novo.
We review the trial court’s decision to allow an amendment to the complaint for an abuse of discretion. ( Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4 th 256, 273

- 274
, ov erruled on other grounds by Yvano va v. New Century Mortgage Corp

. (2016) 62 Cal.4 th 919, 199. ) Where there is no reasonable possibility that plaintiff can cure the defect with an amendment, sustaining a demurrer without leave to a mend is not an abuse of
d iscretion. ( Id . at p. 274.)6 II. Statutory Background (a) Brown Act The Brown Act begins with a declaration of purpose: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public

a gencies in this State exist to aid in the conduct of the P eople’s
business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. ” (§ 54950 .)
T o effectuate this purpose

, section 54954.2, subdivi sion (a) (1) provides in part: “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designe e , 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. ” The public has the right to address the local agency.
Section 54954.3

, subdivision (a) provides in part: “Every agenda for regular meetings shall provide an opportunity for members of the pub lic to directly address the legislative body on any item of interest to the public, before or during the legislative body’s
consideration of the item , that is within the subject matter jurisdiction of the legislative body, provided that no action shall
be taken on any item not appearing on the agenda.” Any interested person may petition the court for the purpose of obtaining a judicial determination that an act taken in
violation of section 54954.2 is null and void. (§ 54960.1, subd. (a).)7 The Brown Act is supported by the California Constitution. Article 1, section 3

, subdivision (b), paragraphs (1) and ( 2) of the
California Constitution provide in part: “(1) The P eople have the right of access to information concerning the conduct of the P eople’s bus iness, and, therefore, the meetings of public bodies and writings of public officials and agencies shall be open to public scrutiny. “(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, sha ll be broadly construed if it furthers the P eople’s right of access, and narrowly construed if it limits the right of access.” (b) CEQA The first step in an environmental analysis is to determine whether an activity qualifies as a “project” within the mea ning of CEQA. Not everything a local agency does is a project subject to CEQA. CEQA generally applies “to discretionary projects proposed to be carried out or approved by public agencies.” (Pub.
Res ourc e s Code

, § 21080, subd. (a).) That includes an act ivity that is supported through public agency contracts, grants, subsidies, loans or other forms of assistance, which activity may cause a physical change to the environment

. (Guidelines

, § 15378 (a)(2).) It is undisputed that the contra ct at issue here qualifies as a project within the meaning of CEQA. If an activity is determined to be a project, the next phase of inquiry is to determine whether the project is exempt from CEQA. Our Legislature has created a number of statutory exemptions (Pub. Res ourc e s Code

, § 21080, subd. (b)) and has
directed the S ecretary of the Natural Resources to create further exemptions for projects that have been determined not to have a significant impact on the environment ( id

., § 21084, subd. (a); see8

Guidelines

, § 15300, et seq.) Exemptions created by such regulations are called “categorical exemptions

. ” (Guidelines

, § 15354.) In addition to statutory and categorical exemptions, there is a “common sense” exemption, “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” ( Id

., § 150 6 1 (b)(3).) Where a project is found to be exempt from CEQA, no further environmental review is necessary. ( Mu zz y Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4 th 372, 380.) If a project is not exempt, environmental review must proceed . ( Id . at pp. 380

- 381.)
III. The Brown Act Applies The factual allegations of WM’s petition are sufficient to
state a cause of action. By its terms the Brown Act applies to the City’s
determination that the Athen’s project is exempt from CEQA.
That determination was an item of business transacted at a regular meeting of a local legislative body. (§ 54954.2, subd. (a).) WM alleges it did not receiv e the a ppropriate agenda notice, and was thus deprived of a meaningful opportunity to be heard.
In San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4 th 1167 ( San Joaquin Raptor ) , the county’s planning commission listed the approval

, disapproval, or modification of a subdivision application as an agenda item. The agenda did not mention that the commission would be considering the adoption of a mitigated negative declaration (MND) under CEQA. The commission approved the subdivision

a pplication, and

, by separate motion, adopted the MND.9 San Joaquin Raptor Rescue objected that the commission’s agenda did not provide the required notice that an MND
determination would be made. The trial court found a violation
of the Brown Act. The Co urt of Appeal agreed. The Court of Appeal stated: “The Brown Act clearly and unambiguously states that an agenda shall describe ‘ each item of business to be transacted or discussed’ at the meeting

. ( § 54954.2, subd. (a)(1), italics added.) Here, the C ommission failed to disclose in its agenda that it would be considering the adoption of the MND at its October 14, 2009, meeting. The adoption of the MND was plainly a distinct item of business, and not a mere component of project approval, since it (1) i nvolved a separate action or determination by the
Commission and (2) concerned discrete, significant issues of CEQA compliance and the project’s environmental impact. As an
individual item of business, it had to be expressly disclosed on the agenda; it wa s not sufficient for the agenda to merely reference the project in general. Because the commission discussed and adopted the MND at its October 14, 2009, meeting even though that matter was not set forth on the meeting agenda, it violated
the Brown Act .” ( San Joaquin Raptor

, supra , 216 Cal.App

. 4th at

p p

. 1176

- 1177
, fns. omitted .) The City 4 argues that its adoption of the CEQA exemption was a component of the agenda item awarding the franchise agreement to Athens. But San Joaquin Raptor rejected that

arg ument. The CEQA exemption involved a separate action or determination by the City and concerned discrete significant issues of CEQA compliance. Here the trial court agreed that the

4 All further references to the “City,” includes Athens

, u nless the content indicates otherwise

.10

CEQA exemption was a separate item of business. It follow s that the City violated the Brown Act by adopting the exemption without having listed it as an item on its agenda for at least 72
hours. The City attempts to distinguish San Joaquin Raptor on the ground that it involved an MND and not a CEQA exemption.
It is true an M ND involves an assessment of the environmental impacts of a project, whereas an exemption is a determination that CEQA does not apply. But for the purposes of the Brown
Act

, it is a distinction without a difference. Members of the public are just as enti tled to have notice of and an opportunity to participate in a local agency’s determination that a CEQA exemption applies as they are to the agency’s determination that
an MND should be issued. We are required by the California Constitution to broadly

cons true the Brown Act to further the P eople’s right to access to
the conduct of the P eople’s business. (Cal. Const

., a rt

. 1, § 3, subd. (b)(1)(2).) We would be remiss in that duty if we narrowly interpreted the Brown Act to apply to a determination that an MND is appropriate but not a determination that a project is exempt from CEQA, both are aspects of the P eople’s business. The City relies on a line of cases that hold CEQA does not require a public hearing for a determination that a project is exempt. ( See, e.g., San Lorenzo Valley Community A dvocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4 th 1356, 1385.) The cases discuss only CEQA. They do not discuss whether the Brown Act applies. A
case is not auth ority for issues it does not consider. ( Contra
Costa Water Dist. 

### v . Bar

- C Properties (1992) 5 Cal.App.4 th 652, 660.)11 Moreover, the Brown A ct as applied to a CEQA exemption does not require a formal public hearing where the findings must be supported by s ubstantial evidence. All the Brown Act requires
i s that the exemption be placed on the meeting agenda and an opportunity for the public to comment. The City cites no language in CEQA that precludes the application of the Brown Act. In fact, our Supreme Court has stated that members of the public hold a ‘ “privileged position”

. . . in the CEQA process based on a belief that ‘ citizens can make important contributions to environmental protection and on
notions of democratic decision

- making. ” ’ ( Concerned Ci tizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn . (1986) 42 Cal.3d 929, 936 , quoting Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. Davis L.Rev. 197, 215

- 216 ) That is entirely consistent with the appli cation of the Brown Act to the CEQA process. A finding that a project is exempt from CEQA is not a minor matter. Such a finding forecloses any analysis of the project’s environmental impact. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com.

, s upra , 41 Cal.4 th at p. 380.) A finding of an exemption is as least as important to environmental protection as an MND. The City argues that applying the Brown Act to a CEQA exemption will place an intolerable burden on local agencies. It posits that it would require basic administrative decisions such as the purchase of paperc lips to be “ agendized. ”
But the section of the Brown Act on which WM relie s applie s only to an item of business transacted or discussed at a regular meeting of the legislative body of a local agency. (§ 54954.2, subd. (a)(1).) The vast majority of t he City’s day

- to

-12

day business is not transacted or discussed at a regular meeting of a legislative body. But if a local legislative body intends to vote on or discuss a CEQA exemption at a regular meeting, it will require minimal effort to include it as an agenda item. For a CEQA exemption to apply, the activity must qualify as a “project” under CEQA. Most of the City’s activities would not qualify as a project because they have no pot ential environmental effect

. (See
Guidelines

, § 153 7 8(a).) Our decision will not unduly burden local public agencies. The City argues that the C ity council did not vote on the exemption at the March 9, 2021, meeting. Instead, the City
asserts its staff made the CEQA exemption determination long prior to the meeting. But WM’s petition alleges that approval of the CEQA exemption was expressly made by motion and voted on at the meeting. These are allegations of fact that we must assume are

true o n demur rer. ( Intengan v. BAC Home Loans Servicing LP

, supra , 214 Cal.App.4 th at p. 1052.) More importantly, the lead agency has the duty to determine whether a project qualifies for a CEQA exemption. (Guidelines

, § 15061(a).) Here the C ity council, as the onl y agency involved in approving the contract, is the lead agency. The City can delegate its duty to its staff to determine whether a CEQA exemption applies. (Guidelines

, § § 15025 (a)(1), 15356.) But the delegation only goes so far. The legislative body o f the local agency retains the inherent power to overrule i ts staff’s
determination. Thus, the local agency makes the ultimate decision whether a CEQA exemption applies. The City cannot avoid the Brown Act simply by delegating its duty to its staff. Whe re a local agency at a regular meeting13

approves a project that is subject to a staff’s determination of a CEQA exemption, it must give notice of the CEQA exemption on its agenda. The addition of words to the agenda indicating the local agency is consideri ng a project subject to staff determination
of CEQA exemption will not unduly tax a local agency’s

resources. IV.

Cure and Correct Letter The City contends WM’s letter was inadequate. Section 54960.1, subdivision (b) provides in part: “Prior to any acti on being commenced .

. . the district attorney or interested person shall make a demand of the legislative body to cure and correct the action alleged to have been taken in violation
of Section .

. . 54954.2 The demand shall be in writing and clearly desc ribe the challenged action of the legislative body and nature of the alleged violation.” Here WM’s letter informed the City that it violated section 54954.2 by considering the CEQA exemption without describing the action in the agenda for at least 72

- hour s prior to the meeting. The letter clearly described the challenged action of the legislative body and the nature of the alleged violation. WM’s petition alleges the City failed to respond in any way. Notably the City did not ask for clarification or fu rther details. WM’s letter substantially complied with section 54960.1, subdivision (b). The City objects that WM’s letter states, “The City Council violated the Brown Act on March 9, 2021 by voting to adopt a Notice of Exemption (NOE) .

. . prior to ado pting the Franchise Agreement and without adequate notice to the public .

. . . ” The14

City points out that an NOE is filed, not adopted, and it was not
filed until M arch 15, 2021. The purpose of section 54960.1, subdivision (b) is to give the local agency notice of an alleged violation of the Brown Act so that it can avoid litigation by curing the violation. Its purpose is not to allow a local agency to avoid the consequences of Brown Act violations by launching nit

- picking technical attacks on the langua ge used in the cure and correct letter. Whether the City

c ouncil technically voted to “ adopt ” a n NOE or when the NOE
was filed is beside the point. The point is that the City c ouncil voted that the project is exempt, without the public notice required by the Brown Act. WM’s cure and correct letter adequately stated that point.
V. Remedy The City contends the proper remedy for a Brown Act violation is to void the CEQA determination, not the franchise
agreement. But our task on reviewing the sustaining of a demurrer is to determine whether petitioner stated a cause of action that entitles it to any remedy. ( Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) WM has shown that it is at least entitled to have the CEQA exemption determination decla red void. We need not determine now whether it is entitled to any other relief. We leave it to the trial court to fashion the appropriate remedy in the first instance should WM prove its case.15 DISPOSITION The judgment is reversed. Costs are awarded to appellant.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J. We concur:

PERREN , J. *

BALTODANO , J.

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.16 Ronda J. McKaig, Judge

Superior Court County of Ventura

______________________________

Remy Moose Manley

, James G. Moose, Andrea K. Leisy,
Natha n O. George; Law Offices of Joel Franklin and Joel
Franklin for Plaintiff and Appellant

. Colantuono, Highsmith & Whatle y, Holley O. Whatley,
Carmen A. Brock

, for Defendants and Respondents

. Manatt, Phelps & Phillips

, Benjamin G. Shatz, Viral Mehta, Sigri d R. Waggener, Jennifer Lynch, for Real Party in
Interest and Respondent

.