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.,

 Defendants and Respondents;

ARAKELIAN ENTERPRISES, 

INC.,

 Real Party 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 business in the 

open with adequate notice to the public. Here, a local agency 

found that a project is exempt from the California Environmental 

Quality Act (CEQA) (Pub. Resources 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 

finding of exemption to be listed on the agency’s agenda for its

public meeting. It was not. The trial court erred when it entered 

judgment after sustaining demurrers without leave to amend

brought by a local agency and the real party in interest. We 

reverse.

FACTS

G.I. Industries,2 doing business as Waste 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 Enterprises, 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 posted an agenda for a regular 

meeting of the City council 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 whether 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 council meeting, that a supplemental item was posted giving 

notice of the staff’s recommendation that the City find the 

agreement to be exempt from CEQA. The posting 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 Guidelines3 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-sense” 

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 CEQA. The 

council member agreed. The City council adopted the motion as 

amended to include the CEQA exemptions. The minutes of the 

3 All references to Guidelines are references to title 14 of 

the California Code of Regulations, 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 Franchise 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 trial 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 

council 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 an item of business 

separate from approval of the franchise agreement. The court 

also concluded that because CEQA does not require a public 

hearing for an exemption determination, 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.4th 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 conclusions 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.4th 256, 273-274, overruled 

on other grounds by Yvanova v. New Century Mortgage Corp. 

(2016) 62 Cal.4th 919, 199.) Where there is no reasonable 

possibility that plaintiff can cure the defect with an amendment, 

sustaining a demurrer without leave to amend is not an abuse of 

discretion. (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 

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.” 

(§ 54950.)

To effectuate this purpose, section 54954.2, subdivision 

(a)(1) provides in part: “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.”

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 public 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 People have the right of access to information 

concerning the conduct of the People’s business, 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, shall be 

broadly construed if it furthers the People’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 meaning 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. 

Resources Code, § 21080, subd. (a).) That includes an activity 

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 contract 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. Resources Code, § 21080, subd. (b)) and has 

directed the Secretary 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); see 
8

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.,

§ 15061 (b)(3).) 

Where a project is found to be exempt from CEQA, no 

further environmental review is necessary. (Muzzy Ranch Co. v. 

Solano County Airport Land Use Com. (2007) 41 Cal.4th 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 receive the appropriate 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.4th 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 

application, 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 Court 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 Commission 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) involved 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 was 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 

pp. 1176-1177, fns. omitted.)

The City4 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 

argument. 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, 

unless the content indicates otherwise.
10

CEQA exemption was a separate item of business. It follows 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 MND 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 entitled 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 

construe the Brown Act to further the People’s right to access to 

the conduct of the People’s business. (Cal. Const., art. 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 People’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 Advocates for 

Responsible Education v. San Lorenzo Valley Unified School Dist.

(2006) 139 Cal.App.4th 1356, 1385.) The cases discuss only 

CEQA. They do not discuss whether the Brown Act applies. A 

case is not authority for issues it does not consider. (Contra 

Costa Water Dist. v. Bar-C Properties (1992) 5 Cal.App.4th 652, 

660.)
11

Moreover, the Brown Act as applied to a CEQA exemption 

does not require a formal public hearing where the findings must 

be supported by substantial evidence. All the Brown Act requires 

is 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 Citizens 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 

application 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., supra, 41 Cal.4th 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 paperclips to be “agendized.”

But the section of the Brown Act on which WM relies

applies 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 the 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 potential environmental effect. (See 

Guidelines, § 15378(a).) Our decision will not unduly burden 

local public agencies.

The City argues that the City 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 on demurrer. (Intengan v. BAC Home Loans Servicing LP,

supra, 214 Cal.App.4th 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 City council, as the only 

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 of the 

local agency retains the inherent power to overrule its 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. Where a local agency at a regular meeting 
13

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 considering 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 action 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 describe 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-hours 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 further 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 adopting the Franchise 

Agreement and without adequate notice to the public . . . .” The 
14

City points out that an NOE is filed, not adopted, and it was not 

filed until March 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 

language used in the cure and correct letter. Whether the City 

council technically voted to “adopt” an NOE or when the NOE 

was filed is beside the point. The point is that the City council 

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 declared 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, 

Nathan O. George; Law Offices of Joel Franklin and Joel 

Franklin for Plaintiff and Appellant.

Colantuono, Highsmith & Whatley, Holley O. Whatley, 

Carmen A. Brock, for Defendants and Respondents.

Manatt, Phelps & Phillips, Benjamin G. Shatz, Viral 

Mehta, Sigrid R. Waggener, Jennifer Lynch, for Real Party in 

Interest and Respondent.