1

Filed 2/10/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

LORI FOWLER et al.,

Plaintiffs and Appellants,

v.

CITY OF LAFAYETTE,

Defendant and Respondent.

 A156525

 (Contra Costa County

 Super. Ct. No. MSN162322)

The City of Lafayette (the City) approved an application to build a 

tennis cabaña on a residential property. Lori Fowler, Scott and Jeanne 

Sommer, Val and Rob Davidson, and Avon and George Wilson (collectively, 

plaintiffs), all residents of the City, brought this action challenging the 

approval on the grounds that the City improperly considered the application 

in closed sessions in violation of the Ralph M. Brown Act (Gov. Code, § 54950

et seq.)

1 and violated their right to a fair hearing. They appeal after the trial 

court ruled against them. In the published portion of the opinion, we agree 

with plaintiffs that the City violated the Brown Act but conclude there was 

no prejudice. We also reject plaintiffs’ other contentions, and shall affirm the 

judgment.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts I.D, II, and III

of the Discussion section. 

1 All undesignated statutory references are to the Government Code.
2

FACTUAL AND PROCEDURAL BACKGROUND

The owners of the property, Michael and Diane Archer (the applicants), 

sought to build what they called a tennis cabaña (the project) next to a tennis 

court on their 2.38-acre property. As initially proposed, the 1,199-square-foot 

cabaña would have included a pavilion with a kitchen for entertaining and a 

guest room with a full bathroom. In March 2015, they applied for approval of 

the project. Through the course of the design review, the applicants made 

changes that eliminated the need for a setback variance and removed the 

kitchen from the proposed building. The City’s Design Review Commission

(DRC) approved the project, with conditions of approval requiring the 

applicants to record a landscape maintenance agreement and a deed 

restriction preventing the cabaña from being used as a secondary dwelling 

unit. 

Plaintiffs are neighbors of the applicants who objected that the tennis 

cabaña was inconsistent with the neighborhood and too close to an adjacent 

home, such that it would subject the occupants to noise and loss of privacy. 

They appealed the DRC’s action to the City’s Planning Commission, asserting 

a number of objections to the project: that it was an illegal second unit; that 

it violated a landscape condition of approval imposed in 1990, when the 

tennis court was approved; that the building was too large, too close to 

neighboring residences, and inconsistent with the City’s general plan and 

municipal code; and that the notices of DRC hearings were inadequate and 

violated the Brown Act. A supporting letter also raised the concern that the 

applicants had an unfair advantage in the review process because their 

architect was a member of the Planning Commission. 

The City’s Planning Commission considered the matter at four

meetings between December 2015 and May 2016. During the course of those 
3

meetings, the applicants made additional changes to the project, shaving its

size to 1,100 square feet and decreasing its height, while increasing the 

distance from the cabaña to a neighboring project, and improving

landscaping. The Planning Commission approved the project subject to 

conditions of approval including the landscape agreement and the prohibition 

on use as a secondary dwelling unit. 

Plaintiffs appealed the matter to the City Council. They argued that 

the project violated the 1990 landscape condition of approval; that it 

improperly expanded the use of the tennis court, which they asserted was a 

nonconforming use under the City’s ordinances; that it was an illegal second 

unit; that the restrictions on use would not bind future owners of the 

property; and that consideration should be given to locating the cabaña on 

another portion of the applicants’ property, farther from neighbors’ homes. 

The City Council considered the appeal at four meetings: July 11, July 

25, September 26, and October 11, 2016. At the final meeting, the City 

Council denied the appeal and upheld the Planning Commission’s approval of 

the application, subject to conditions, on a four-to-one vote. 

While approval was pending, the applicants’ attorney threatened to sue 

the City if it denied the project, and the City Council discussed the threat of 

litigation during closed sessions held before the July 25, September 26, and 

October 11, 2016 meetings. An entry in the “Notes” field in the City’s 

“Application Database” for the project—between notations indicating that the 

appeal to the City Council had been received and that the appeal was 

scheduled for a July 11 hearing—states: “On multiple occasions now, on the 

phone D. Bowie [David Bowie, the applicant’s counsel] indicated he would 

take the matter to court if the City denied the project. M. Canales [Megan 
4

Canales, an assistant planner who worked on the application] informed M.

Subramanian [Mala Subramanian, City Attorney] of litigation threat.” 

Subramanian notified the City Council of the litigation threat orally, 

rather than in written form, in the July 25, 2016 closed session. That a

threat of litigation had been made with respect to this specific project was not 

noted in the agenda for any of the public meetings, and there was no mention 

of it in any of the packets of information—including staff reports and agenda 

attachments—that were made available to the public for inspection in city 

offices and on-line before the meetings. The agendas simply record that the 

City Council would confer with legal counsel in closed session about one case 

of anticipated litigation, without identifying the case. In order to see the 

notation regarding the threat of litigation in this matter, a member of the 

public would have to visit the City’s “planning counter,” speak with a 

planner, and ask to see the project’s “notes field.” The computer network that 

included that information was password-protected, and there was no 

indication the notes in the project’s application database were printed out 

until after the City Council reached its decision. 

Plaintiffs did not learn that Bowie had threatened litigation or that the 

City Council had discussed the matter in closed sessions until November 

2016, after the project had been approved. 

Plaintiffs brought a petition for writ of mandate (Code Civ. Proc., 

§ 1085) and complaint for injunctive and declaratory relief challenging the 

City’s decision. The operative second amended petition alleges the City 

violated the Brown Act by discussing the application in closed hearings, and 

that plaintiffs were deprived of their right to a fair hearing. 

The trial court rejected all of plaintiffs’ claims, denied the petition, and 

entered judgment for the City. 
5

DISCUSSION

I. Brown Act Violation

A. General Standards

Plaintiffs contend the City violated the Brown Act by failing to

announce or make available for public inspection Bowie’s statement 

threatening litigation and by conducting unauthorized and overbroad 

discussions in closed sessions. Where the facts are undisputed, our review of 

this challenge is de novo. (San Diegans for Open Government v. City of 

Oceanside (2016) 4 Cal.App.5th 637, 642; Castaic Lake Water Agency v. 

Newhall County Water Dist. (2015) 238 Cal.App.4th 1196, 1204.) However, to 

the extent the trial court drew factual inferences, we defer to those inferences 

if they are supported by substantial evidence. (Shapiro v. Board of Directors

(2005) 134 Cal.App.4th 170, 178–179.) 

The Brown Act requires most meetings of a local agency’s legislative 

body to be open and public. (§ 54953, subd. (a); Los Angeles Times 

Communications v. Los Angeles County Bd. of Supervisors (2003) 112 

Cal.App.4th 1313, 1321.) It “is intended to ensure the public’s right to attend 

the meetings of public agencies. [Citation.] To achieve this aim, the Act 

requires, inter alia, that an agenda be posted at least 72 hours before a 

regular meeting and forbids action on any item not on that agenda. 

[Citations.] The Act thus serves to facilitate public participation in all phases 

of local government decisionmaking and to curb misuse of the democratic 

process by secret legislation by public bodies.” (Golightly v. Molina (2014) 

229 Cal.App.4th 1501, 1511.) The Brown Act is “ ‘construed liberally so as to 

accomplish its purpose.’ ” (Olson v. Hornbrook Community Services Dist.

(2019) 33 Cal.App.5th 502, 525 (Olson).)
6

B. Closed Sessions Concerning Pending Litigation

One of the exceptions to the Brown Act’s open meeting requirements

allows closed sessions for an agency to “confer with, or receive advice from, its 

legal counsel regarding pending litigation when discussion in open session 

concerning those matters would prejudice the position of the local agency in 

the litigation.” (§ 54956.9, subd. (a).) Resolution of the question of whether 

the City Council gave adequate notice that it was discussing the project in 

closed session requires a close examination of the statutory provisions 

regarding pending litigation.

Litigation is considered pending when, inter alia, “[a] point has been 

reached where, in the opinion of the legislative body of the local agency on the 

advice of its legal counsel, based on existing facts and circumstances, there is 

a significant exposure to litigation against the local agency.” (§ 54956.9,

subd. (d)(2).) Subdivision (e) of the same statute limits “existing facts and 

circumstances” in this context to five scenarios, two of which are pertinent to 

our inquiry: “(2) Facts and circumstances, including, but not limited to, an 

accident, disaster, incident, or transactional occurrence that might result in 

litigation against the agency and that are known to a potential plaintiff or 

plaintiffs, which facts or circumstances shall be publicly stated on the agenda 

or announced,” and “(5) A statement threatening litigation made by a person 

outside an open and public meeting on a specific matter within the 

responsibility of the legislative body so long as the official or employee of the 

local agency receiving knowledge of the threat makes a contemporaneous or 

other record of the statement prior to the meeting, which record shall be 

available for public inspection pursuant to Section 54957.5 . . . .” (§ 54956.9, 

subd. (e)(2) & (5), italics added.)
7

The first question we must decide is whether subdivision (e)(2) or (e)(5) 

of section 54956.9 applies to this case. This question is significant because of 

the different requirements for notifying the public of a litigation threat: 

there is no dispute that the threat was not publicly stated on the record, as

would be required if subdivision (e)(2) governed; but the parties dispute 

vigorously whether the City’s actions in including the threat in the project’s

Notes field satisfied subdivision (e)(5)’s requirement that a record of a 

litigation threat be made available for public inspection pursuant to section 

54957.5. Plaintiffs contend that the threat of litigation fell not only within

subdivision (e)(5) of section 54956.9, but also within subdivision (e)(2)’s broad 

enumeration of “[f]acts and circumstances, including, but not limited to, . . .

[a] transactional occurrence that might result in litigation . . . ,” and that the 

City was therefore obligated to publicize when it would be discussing 

potential litigation over the project. 

On this point, the City has the better of the argument. On its face, 

section 54956.9, subdivision (e)(2) appears to apply to events that might 

themselves give rise to litigation, such as “an accident” or “disaster,” or a 

“transactional occurrence that might result in litigation.” But even assuming 

this language could be stretched to include a threat of litigation based on a 

pending application, we must bear in mind the well-established rule of 

statutory construction that “ ‘ “[a] specific provision relating to a particular 

subject will govern in respect to that subject, as against a general provision, 

although the latter, standing alone, would be broad enough to include the 

subject to which the more particular provision relates.” ’ ” (Miller v. Superior 

Court (1999) 21 Cal.4th 883, 895; accord, Elliott v. Workers’ Comp. Appeals. 

Bd. (2010) 182 Cal.App.4th 355, 365.) Subdivision (e)(5) of section 54956.9 

specifically addresses a public agency’s obligations when a person has 
8

threatened litigation outside a public meeting. Like the trial court, we 

conclude this provision, and not subdivision (e)(2), applies here. 

We next ask whether the City complied with its obligation under 

section 54956.9, subdivision (e)(5) to “make[] a contemporaneous or other 

record of the statement prior to the meeting, which record shall be available 

for public inspection pursuant to section 54957.5.” Plaintiffs contend the 

record of the threat was not created until November 2016—after the project 

was approved—pointing out that the printed copy of the Notes field from the 

“Application Database” for the project (referred to by the parties as the 

“Bowie Statement”) states at the bottom, “Copied from Database on 11/3/16 

by M. Canales for S. Sommer,” and the metadata for the entry does not 

reflect an earlier date. The trial court concluded, however, that the 

November 3, 2016 date merely reflects the date the Notes field was printed in 

response to a request by one of the plaintiffs, not the time each item in the 

Notes field was entered. This conclusion is reasonable, and the location of 

the Bowie statement in the database—between notes of the appeal to the City 

Council and of the scheduled July 11, 2016 date for the appeal to be heard—

suggests the note was most likely entered before July 11, 2016. 

C. Availability of Agendas and Other Writings

So far, we have agreed with the trial court. We depart from it, 

however, on whether the City met its duty to make the record of the 

statement threatening litigation “available for public inspection pursuant to 

Section 54957.5.” (§ 54956.9, subd. (e)(5), italics added.) Section 54957.5 

directs public agencies to disclose agendas of public meetings and other 

writings that are distributed to members of a local agency in connection with 

open meetings. Specifically, subdivision (a) dictates that such agendas and 

writings are disclosable public records that must be made available on 
9

request without delay. And subdivision (b) requires that, if the writing is 

distributed less than 72 hours before the meeting, it must be made available 

at a location specified in the agenda or be posted on the agency’s web site.2

The City argues it complied with these provisions by making the Bowie 

statement available for public inspection when it entered it in the Notes 

section of the Application Database, which any member of the public could 

inspect by going to the Planning Department and asking to see the project 

notes. The City contends its obligation was limited to making the Bowie 

statement available for public inspection at city offices, not to distributing it 

in the agenda packet where, as here, it was not distributed in written form to 

the City Council. 

This argument is unconvincing. Where litigation has been threatened 

outside a public meeting, it may be discussed in closed session under section 

54956.9, subdivision (e)(5) only if a record of the threat is made before the 

meeting, which record must be made available for public inspection pursuant 

2 Section 54957.5, subdivision (a), provides that “agendas of public meetings and 

any other writings, when distributed to all, or a majority of all, of the members of a 

legislative body of a local agency by any person in connection with a matter subject to 

discussion or consideration at an open meeting of the body, are disclosable public records 

. . . and shall be made available upon request without delay.” 

Subdivision (b)(1) provides: “If a writing that is a public record under subdivision 

(a), and that relates to an agenda item for an open session of a regular meeting of the 

legislative body of a local agency, is distributed less than 72 hours prior to that meeting, 

the writing shall be made available for public inspection pursuant to paragraph (2) at the 

time the writing is distributed to all, or a majority of all, of the members of the body.” 

Under subdivision (b)(2), “A local agency shall make any writing described in 

paragraph (1) available for public inspection at a public office or location that the agency 

shall designate for this purpose. Each local agency shall list the address of this office or 

location on the agendas for all meetings of the legislative body of that agency. The local 

agency also may post the writing on the local agency’s Internet Web site in a position and 

manner that makes it clear that the writing relates to an agenda item for an upcoming 

meeting.”
10

to section 54957.5. (§ 54956.9, subd. (e)(5).) The clear import of section 

54957.5 is that agendas and other writings that the legislative body receives

in connection with a meeting should be available to the public upon request. 

Mostly, these are documents relating to agenda items for the open session of 

the meeting (e.g., § 54957.5, subd. (b)(1)), but section 54956.9, subdivision 

(e)(5) requires the same for documented threats associated with an agenda 

item for the closed session as well. The only reasonable inference is that a 

record of a litigation threat to be discussed in closed session must be included 

in the agenda packet made available upon request before a meeting. (See 

Citizens for a Green San Mateo v. San Mateo County Community College Dist.

(2014) 226 Cal.App.4th 1572, 1596 & fn. 5 [§ 54957.5 requires agenda packet 

to be made available to the public].) 

Section 54957.5 does not explicitly address the situation we face here, 

in which an electronic record of the litigation threat was made but not

distributed in written form to the legislative body. The City appears to take 

the position it can avoid its responsibility to include a record of the threat in

the agenda packet by the simple expedient of conveying the threat to the 

legislative body orally, rather than in writing. But the statutory scheme does 

not allow an agency to thwart its duty of public disclosure in this manner. 

Read together, sections 54956.9 and 54757.5 contemplate that a litigation 

threat will be reduced to writing and included in the agenda materials 

available to the public upon request. The threat here was entered in the 

City’s computer system, and it was conveyed to the City Council as the basis 

for a closed session. Under sections 54956.9, subdivision (e)(5) and 54957.5, a 

record of the threat should have been included in the agenda packet made

available at City offices. 
11

The City disputes this conclusion, contending the notation regarding 

the threat was available for inspection in City offices upon request. But this 

availability is illusory if an interested person would not know the question to 

ask. We reiterate that the Brown Act is intended to “facilitate public 

participation in all phases of local government decisionmaking” (Golightly v. 

Molina, supra, 229 Cal.App.4th at p. 1511), and that we must construe it 

liberally to accomplish its purpose (Olson, supra, 33 Cal.App.5th at p. 525). 

Members of the public are entitled to rely on the agenda and packet made 

available upon request (see § 54957.5, subd. (a)), and the City has drawn our 

attention to no authority suggesting an interested citizen must, in addition, 

go to the planning counter, speak to a planner, and ask the planner to pull up 

the Notes field of an application file in a password-protected computer system 

to determine whether the legislative body has received a litigation threat that 

might properly be the basis of a closed session. 

The City also suggests that it was not required to make the litigation 

threat available as part of the agenda materials because the threat related 

only to the closed session, not to an item discussed in open session. 

(§ 54957.5, subds. (a) & (b).) This point fails. First, a threat to sue if an 

agency does not approve a project being considered at an open session may 

reasonably be understood to relate to or be made in connection with the open 

session’s agenda item. Second, the express language of section 54956.9, 

subdivision (e)(5) requires a record of the threat to be made “prior to the 

meeting” where it will be discussed and then made “available for public 

inspection pursuant to Section 54957.5.” That the record is not otherwise

subject to disclosure under section 54957.5 is immaterial. Read together, 

sections 54956.9, subdivision (e)(5) and 54957.5 require public agencies to 
12

include with the agenda materials litigation threats to be discussed in closed 

session. 

D. Other Brown Act Challenges

Plaintiffs’ other substantive Brown Act challenges are unpersuasive, 

and, in light of our conclusion that the City violated the Brown Act in its 

treatment of the litigation threat, we will discuss them only briefly. 

Plaintiffs argue the evidence does not show Bowie threatened litigation 

in a manner that would justify a closed session, a conclusion they reach only 

by focusing on other statements Bowie made. Greg Wolff, an assistant 

planning director, testified that he had spoken with Bowie many times, and 

that Bowie had “hint[ed] or insinuate[ed]” he would take the matter to court 

if the City denied the application. Rather than saying directly that he would 

sue the City, according to Wolff, Bowie said he would “do whatever it takes to

[e]nsure his client’s rights are respected.” But it was Canales, the assistant 

planner who worked on the application, and not Wolff, that reported Bowie 

had threatened litigation on multiple phone calls and informed the City 

Attorney of the threat, and Bowie may have taken a more aggressive line 

with her. In any event, even if the only words at issue were those reported by 

Wolff, the City and its counsel could reasonably construe them as a threat of 

litigation. (See Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 

122 Cal.App.3d 813, 824 [board could properly hold closed session to receive 

legal advice regarding implied threat of litigation].)

Plaintiffs also argue that the closed session discussions were 

impermissibly broad. They point to the declaration of Guy Atwood, who 

stated that he spoke regularly with councilmember Mark Mitchell about 

governmental affairs in the City. Mitchell told Atwood the City Council 

would be scheduling a closed session on the threat of litigation that Bowie 
13

had made, and then in October and November of 2016, told Atwood the City 

Council had discussed the land use project in the closed sessions, and that 

councilmembers had asked questions about the project and were given 

answers by the City Attorney and planning staff. Mitchell did not report to 

Atwood having discussed the litigation threat specifically. As the trial court 

found, this declaration does not show the City’s discussions of the project 

were broader than necessary to consider the strength and merits of any 

threatened litigation. (See California Alliance for Utility etc. Education v.

City of San Diego (1997) 56 Cal.App.4th 1024, 1030 [Brown Act 

accommodates “the practical need public agencies have for confidentiality 

when attempting to make rational decisions about the legal strength of 

arguments asserted by an actual or probable adversary”].)

Plaintiffs also contend that public disclosure of Bowie’s threat of 

litigation would not prejudice the City for purposes of section 54956.9, 

subdivision (a). To the extent plaintiff’s argument is that the City was 

required to make the threat known to the public upon request, we agree, for 

the reasons we have already stated. 

E. Nullification of Agency Action

Our conclusion that the City violated the Brown Act does not end the 

matter. Section 54960.1 authorizes a court to find null and void an action 

taken in violation of specified portions of the Brown Act—sections 54953, 

54954.2, 54954.5, 54954.6, 54956, or 54956.53—and plaintiffs urge that the 

project approval is null and void under this provision. 

3 These statutes involve the Brown Act’s requirements for open 

meetings (§ 54953), posting agendas (§ 54954.2), closed session item 

descriptions (§ 54954.5), meetings regarding new or increased taxes or 

assessments (§ 54954.6), special meetings (§ 54956), and emergency meetings 
14

We are not persuaded. Plaintiffs’ complaint is that they were not 

informed that Bowie had threatened litigation before the City Council 

discussed the threat in closed session. But the action they seek to nullify is 

the approval of the cabaña, which occurred not in closed session, but in an 

open session that was properly noticed and at which the City Council 

considered the matter fully after hearing from all interested parties. Thus, 

this matter does not fall within the terms of section 54960.1, which 

authorizes nullification only of “an action taken . . . in violation of [the 

specified statutes.]” (§ 54960.1, subd. (a).) 

Plaintiffs’ claim for nullification fails for a second reason as well. We

do not set aside an agency’s action unless the appellants show the violation 

caused prejudice. (Olson, supra, 33 Cal.App.5th at p. 522; San Lorenzo 

Valley Community Advocates for Responsible Education v. San Lorenzo 

Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1410.) This rule has 

been consistently stated in cases construing the Brown Act and analogous 

law. (See Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 

670–671 (Galbiso) [“in light of the long history of this assessment dispute and 

litigation in which both parties were well aware of the other side’s position 

and arguments, no prejudice is apparent”]; Cohan v. City of Thousand Oaks

(1994) 30 Cal.App.4th 547, 556 (Cohan) [“highly unlikely” more people would 

have attended hearing to support appellant’s position if matter had been 

properly placed on agenda]; see also North Pacifica LLC v. California Coastal 

Com. (2008) 166 Cal.App.4th 1416, 1433–1434 [considering failure to comply 

with 10-day advance notice requirement of analogous Bagley-Keene Open 

Meeting Act, § 11120 et seq.].) 

(§ 54956.5). We note that section 54956.9, subdivision (e)(5), which the City 

violated, is not among the statutes enumerated in section 54960.1.
15

Plaintiffs argue that the language in these cases is mere dictum and 

should be disregarded. Not so. The court in Cohan found a Brown Act 

violation, noted the requirement of prejudice to invalidate a decision, and 

explained the reasons that there was no showing of prejudice. (Cohan, supra, 

30 Cal.App.4th at p. 556.) In Galbiso, the lack of prejudice was an alternate 

basis for the court’s decision. (Galbiso, supra, 182 Cal.App.4th at p. 670; see 

Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1996) 50 

Cal.App.4th 1542, 1549 [where two independent reasons are given for 

decision, neither is considered mere dictum].) In any case, California courts 

have consistently stated that a decision will not be invalidated for violation of 

the Brown Act absent a showing of prejudice, and plaintiffs give us no reason 

to repudiate this rule.

There has been no showing of prejudice here. The application was 

thoroughly considered at four open meetings at which the City Council 

considered plaintiffs’ appeal. The minutes of the discussion at the July 11, 

2016 meeting devote more than 20 pages, representing more than an hour 

and a half of meeting time, to this issue. The minutes record there was a 

staff summary of the project; questions by the mayor and councilmembers 

and responses by staff and the City Attorney; comments by applicant Michael 

Archer and attorney Bowie in support of the project; extensive comments in 

opposition to the project by Lori Fowler and Scott Sommer, two of the 

plaintiffs; public comments by other neighbors opposed to the project; and 

discussion among the mayor and members of the City Council. The 

discussion at the July 25, 2016 hearing covered more than 25 pages of the 

meeting’s minutes and was again exhaustive, as were the discussions at the 

September 26 and October 11, 2016 hearings. There is no reasonable 

argument that plaintiffs lacked a fair opportunity to present their case, that 
16

the City failed to consider it fully, or that plaintiffs would have achieved a 

more favorable result if they had known the City Council was also 

considering the litigation threat in closed session.

In an effort to show prejudice, plaintiffs complain they were deprived of 

knowledge that the litigation threat was being discussed in closed session, 

but they suggest no particular manner in which they would have proceeded 

differently had they known of the threat. They also argue that they might 

have achieved a more favorable result from newly elected City Council 

members who took office a few weeks after the project was approved. But 

speculation about what future council members might have done if the 

matter had been delayed is irrelevant to whether plaintiffs were prejudiced 

by the Brown Act violation that actually occurred.

Plaintiffs argue that the rule that we reverse only for prejudicial Brown 

Act violations is strictly limited to minor technical violations, such as, for 

instance, a city council’s action in “ ‘amending’ ” an agenda at a meeting to 

consider a new item. (Cohan, supra, 30 Cal.App.4th at p. 555.) But the 

surest way to distinguish what might be called minor or technical violations 

from violations that require us to nullify an official act is to examine whether 

a party has been prejudiced. (Compare Cohan, supra, 30 Cal.App.4th at 

p. 556, with Sounhein v. City of San Dimas (1992) 11 Cal.App.4th 1255, 

1260–1261 [failure to provide notice and public hearing when considering 

adoption of zoning ordinance not harmless as “mere minor technical defect,” 

but deprived residents affected by ordinance of opportunity to have concerns 

and welfare considered].) Thus, Horn v. County of Ventura (1979) 24 Cal.3d 

605 (Horn), on which plaintiffs rely, requires notice and a hearing to 

neighboring landowners only where a city’s land use decisions “result in 

‘significant’ or ‘substantial’ deprivations of property.” (Id. at p. 616.)
17

Here, where there is no basis to conclude the closed sessions were

themselves improper, where the merits and demerits of the project were 

exhaustively debated in multiple City Council meetings, and where there is 

no indication of how the plaintiffs would have proceeded differently if they 

had known of the threat, we see no basis for inferring even the possibility of 

prejudice from the City’s failure to disclose in the meeting packet the

applicant’s litigation threat.

II. Due Process Challenges

A. Background

Plaintiffs contend they were deprived of their right to due process and a 

fair hearing. Their primary challenge here centers on the role of the 

applicant’s architect, J. Allen Sayles, who was also a member of the City’s 

Planning Commission, and, ex officio, a non-voting member of the DRC when 

these bodies considered the project. The application lists Sayles as the 

architect. When the DRC considered the application, Sayles recused himself 

and presented the project to the DRC. At the December 7, 2015 Planning 

Commission meeting, at which it heard plaintiffs’ appeal from the DRC’s 

approval of the project, Sayles recused himself from participating in the 

matter and left the Commission meeting for the remainder of the evening. 

The City Attorney issued an advisory memorandum on May 10, 2016, 

regarding the conflicts of interest that might arise for architects who are 

members of the Planning Commission or the DRC. The memorandum 

explained that such an architect may prepare plans or drawings that will be 

subject to the commission’s review and approval, but the architect may not

appear before his or her own commission, or before another commission if the 

matter might be reviewed by the member’s own commission. Thus, a 

member of the Planning Commission may not appear before the DRC because 
18

the matter may be appealed to the Planning Commission. Furthermore, with 

certain exceptions, the member is not allowed to contact planning staff 

regarding a specific project. These restrictions apply equally to ex officio 

members of a commission.

In light of this opinion, Sayles resigned from the Planning Commission,

effective May 17, 2016, explaining that his architectural office was small, he 

sometimes needed to represent his clients at the design review and town 

council levels, and he could “no longer serve on the planning commission and 

remain in compliance with these guidelines.” 

Scott Sommer, one of the plaintiffs who had by then appealed the 

matter to the City Council, sent a letter to the mayor and City Council on 

June 20, 2016, explaining that Sayles, while a sitting member of the 

Planning Commission, submitted applications for the cabaña, had multiple 

contacts with planning staff members regarding the project, and appeared 

personally before the DRC to present the applications. Sommer took the 

position that these actions violated the Political Reform Act of 1974 (§ 81000 

et seq.), under which, in pertinent part, a public official may not “participate 

in making or in any way attempt to use his official position to influence a 

governmental decision in which he knows or has reason to know he has a 

financial interest.” (§ 87100). 

The City Attorney then sent a letter to the Fair Political Practices 

Commission (FPPC) asking for advice on whether the City Council could

properly vote on a development project that it reviewed de novo if a planning 

commissioner with a conflict of interest had participated in a prior stage of 

the application. The FPPC responded that the Political Reform Act’s conflictof-interest provisions did not preclude a city council from deliberating and 

voting on a matter in these circumstances. 
19

Sayles did not participate in and was not present at the hearings before 

the City Council.

Based on these facts, and on evidence said to show bias on the part of 

the City Attorney and City staff, plaintiffs contend they were deprived of 

their right to due process and a fair hearing before an unbiased decision 

maker. They seek a writ of mandate compelling the City to vacate the 

resolution approving the application (Code Civ. Proc., § 1085), as well as a 

declaration that the City violated their right to due process (Code Civ. Proc., 

§ 1060). 

B. Discussion

Plaintiffs brought their causes of action for a writ of mandate under 

Code of Civil Procedure section 1085, which is “a method for compelling a 

public entity to perform a legal and usually ministerial duty.” (Klajic v. 

Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995.) To obtain writ 

relief under this provision, a party “must show there is no other plain, 

speedy, and adequate remedy; the respondent has a clear, present, and 

ministerial duty to act in a particular way; and the petitioner has a clear, 

present and beneficial right to performance of that duty.” (County of San 

Diego v. State of California (2008) 164 Cal.App.4th 580, 593 (County of San 

Diego).)

“When a party seeks review of an administrative decision pursuant to 

Code of Civil Procedure section 1085, judicial review is limited to examining 

the agency proceedings to ascertain whether the agency’s action has been 

arbitrary, capricious or lacking entirely in evidentiary support, or whether 

the agency failed to follow the proper procedure and give notices required by 

law.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208

Cal.App.4th 301, 311.) In reviewing a trial court’s decision in an action for 
20

ordinary mandate, we review legal issues independently, but, to the extent 

facts are disputed, we review the trial court’s findings for substantial 

evidence, viewing the evidence in the light most favorable to the prevailing 

party and resolving all conflicts in its favor. (McIntyre v. Sonoma Valley 

Unified School Dist. (2012) 206 Cal.App.4th 170, 179; Munroe v. Los Angeles 

County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1301.)

Plaintiffs argue the City deprived them of due process when it 

considered evidence in closed hearings of which they had no notice and when 

the City Attorney and City staff members, who plaintiffs contend appeared 

biased in favor of the applicants as a result of Sayles’s involvement, 

participated in the proceedings. As a result, they contend, they were 

deprived of their due process right to reasonable notice and an opportunity to 

be heard by an unbiased decision maker on a matter that affected their 

property interests. (See Cohan, supra, 30 Cal.App.4th at pp. 554–555; Scott 

v. City of Indian Wells (1972) 6 Cal.3d 541, 549; Horn, supra, 24 Cal.3d at 

p. 616; Morongo Band of Mission Indians v. State Water Resources Control 

Bd. (2009) 45 Cal.4th 731, 737 (Morongo).) The trial court rejected these 

contentions, as do we. 

First, the trial court found the evidence did not support an inference 

that the City Council improperly used the closed sessions to debate the 

merits of the project. We have already agreed with the trial court on this 

point. In addition, as the City points out, this claim is essentially that the 

City violated the Brown Act, which provides an adequate remedy. (See 

County of San Diego, supra, 164 Cal.App.4th at p. 593 [relief under Code Civ. 

Proc., § 1085 available only where there is no other plain, speedy, and 

adequate remedy].)
21

We are equally unpersuaded by plaintiffs’ second contention that the 

proceedings were infected by the bias of staff members and the City Attorney. 

To prevail on a claim that a decision maker’s bias violated the right to a fair 

hearing, a party must show “ ‘ “an unacceptable probability of actual bias on 

the part of those who have actual decisionmaking power over their claims.” ’ 

[Citation.] A party seeking to show bias or prejudice on the part of an 

administrative decision maker is required to prove the same ‘with concrete 

facts: “ ‘[b]ias and prejudice are never implied and must be established by 

clear averments.’ ” ’ ” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 

470, 483.) A “mere suggestion of bias is not sufficient to overcome the 

presumption of integrity and honesty.” (BreakZone Billiards v. City of 

Torrance (2000) 81 Cal.App.4th 1205, 1236.) 

This case comes far from meeting that standard. Plaintiffs argue that 

staff and the City Attorney allowed Sayles to “criminally violate the Political 

Reform Act” by advocating for this and other projects before the DRC and by 

meeting privately with City staff in support of the project; that they tried to 

“cover up” these violations by describing them incompletely to the City 

Council; that staff reports minimized the extent of a conflict between the 

project and the 1990 landscaping condition of approval; that staff and the 

City Attorney ignored or downplayed various problems with the application

(e.g., the project’s potential to become an illegal second unit through the later 

addition of kitchen appliances, the alleged fact that the tennis court by the 

proposed cabaña was a nonconforming use, and the possibility of an 

alternative location for the cabaña); that the City Attorney’s office provided 

only a “sanitized” version of facts to the FPPC; and that the City failed to 

investigate the role of Sayles and staff on the application. 
22

These claims all fail because they do not show “ ‘ “an unacceptable 

probability of actual bias on the part of those who have actual 

decisionmaking power over their claims.” ’ ” (Nasha, supra, 125 Cal.App.4th 

at p. 483.) The City Council, not staff members or the City Attorney, was the 

decision maker, and nothing shows the City Council was infected with bias. 

For that matter, as the trial court found, the evidence would not support a 

conclusion that members of the City’s staff or its City Attorney were biased. 

In that regard, this case is readily distinguishable from those upon 

which plaintiffs rely. They place greatest weight on Nightlife Partners, Ltd. 

v. City of Beverly Hills (2003) 108 Cal.App.4th 81. The petitioners there filed 

a petition for a writ of administrate mandate challenging a city’s denial of an 

application for renewal of a permit for an adult entertainment establishment. 

The hearing officer was assisted by an assistant city attorney who had 

represented the city in its initial denial of the permit renewal application and 

was also litigating a federal lawsuit brought by the petitioners against the 

city relating to its regulation of adult entertainment. (Id. at pp. 84–85.) 

Under these circumstances—in which the same person appeared both as an 

advocate of the city’s position and as an advisor to a supposedly neutral

decision maker—there was “a clear appearance of unfairness and bias” that 

supported a ruling that the petitioners’ due process rights had been violated. 

(Id. at pp. 86, 94.) There are no similarly egregious facts here. No one on the 

City’s staff, and no advisor to the City Council, advocated on behalf of the 

applicants, so there is no unacceptable probability that staff bias tainted the 

City Council’s decision. And before the City Council took up the project, 

architect Sayles had resigned from the Planning Commission, and the City 

Council was informed about the reasons for his resignation and his 

involvement at earlier stages of the approval process. 
23

The other cases upon which plaintiffs rely do not lead to a different 

result. In Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, 812, 

816, disapproved on another point in Morongo, supra, 45 Cal.4th at page 740, 

footnote 2, a deputy city attorney who represented the defendant city before a 

personnel board had also acted as counsel for the board, creating an

appearance of bias and unfairness. In Golden Day Schools, Inc. v. State Dept. 

of Education (2000) 83 Cal.App.4th 695, 710, one of the members of the board 

deciding an administrative appeal had headed the agency that initially ruled 

against the petitioner and had been involved in making the original decision. 

In Nasha, supra, 125 Cal.App.4th at pages 476–477, 483–484, a member of 

the planning commission hearing an application for a project had written an 

article attacking the project. No similar facts indicating a blurring of the 

lines between advocate and decision maker, hostility to a project, or a 

predetermined decision appear here.

We accordingly reject plaintiffs’ contention that they were deprived of 

their right to a fair hearing before an unbiased decision maker.

C. Exclusion of Evidence

In a related challenge, plaintiffs contend the trial court erred in 

excluding evidence that Sayles and other commissioners had made illegal 

appearances on behalf of other clients in the preceding years, and that in 

2008 the FPPC fined a DRC member for making a governmental decision 

regarding a development project in which he had a financial interest. 

Plaintiffs contend the evidence is relevant to show that staff and the City 

Attorney allowed and participated in such violations, therefore supporting an 

inference of bias; that some of the commissioners participating in the DRC 

approval of the application in this case had violated the Political Reform Act, 

thus undermining the credibility of the decisions they made; that City staff 
24

had multiple meetings with Sayles in which he violated the Political Reform 

Act; and as impeachment of the City Attorney’s credibility. In excluding the 

evidence, the trial court explained that the extent to which commissioners 

had a practice of improperly representing their clients before the City “had 

little or nothing to do with the way in which the project was considered or 

with the result” in this case. The court concluded the evidence was thus not 

relevant, and if relevant, under Evidence Code section 352 it was not 

sufficiently probative to justify the additional time it would consume. 

We review a trial court’s ruling on the exclusion of evidence for abuse of 

discretion. (People et. rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 

Cal.App.4th 619, 639–640), and we find none here. The trial court could 

reasonably conclude that the evidence of commissioners’ practices in other 

cases would expand the scope of the issues before the court and have little or 

no probative value as the court considered whether in this case, plaintiffs 

received a fair hearing.

III. Mootness

Finally, we briefly consider and reject the City’s affirmative defense

that, because the applicants have already completed construction of the 

cabaña, the case is moot to the extent it seeks an injunction ordering the City 

to vacate and rescind the resolution approving the project or taking any 

action based on the hearings. Even when a challenged project has been 

completed during the course of litigation, a court may still grant effective 

relief where the project may be modified or torn down to restore the property 

to its original condition. (Woodward Park Homeowners Assn. v. Garreks, Inc.

(2000) 77 Cal.App.4th 880, 888–889 [failure to prepare environmental impact 

report].) In the circumstances before us, it is appropriate for us to consider 

plaintiffs’ contentions on the merits, and we have done so.
25

The City has asked us to take judicial notice of evidence that the 

cabaña has passed its inspection and is complete. We deny the request.

DISPOSITION

The judgment is affirmed.
26

_________________________

TUCHER, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

BROWN, J.

Fowler v. City of Lafayette (A156525)
27

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Edward G. Weil

Counsel for Appellants: Larson O’Brien LLP, Scott A. Sommer; 

and Gary S. Garfinkle

Counsel for Respondent: Keker, Van Nest & Peters LLP, Benedict 

Y. Hur, Justina Sessions, and Neha 

Mehta