Filed 10/7/24 Belna v. Rutan & Tucker LLP CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JAMES M. BELNA,

Plaintiff and Appellant,

v.

RUTAN & TUCKER LLP,

Defendant and Respondent.

B336127

(Los Angeles County

Super. Ct. No. 22STCV22179)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.

James M. Belna, in pro. per., for Plaintiff and Appellant.

Loeb & Loeb and W. Allan Edmiston for Defendant and 

Respondent. 

_________________________
2

Plaintiff James M. Belna appeals from a judgment of 

dismissal following a successful demurrer to his complaint 

brought by defendant Rutan & Tucker LLP (Rutan). He contends 

the complaint alleges sufficient facts to support his claim that 

Rutan violated the Political Reform Act of 1974 (Gov. Code, 

§ 81000 et seq.)1 by participating in a Claremont City Council

(the City Council) meeting as the interim City Attorney and 

influencing the City Council’s decision to award Rutan the City 

Attorney legal services contract. We affirm because plaintiff has 

not alleged sufficient facts to show a violation of section 87100.

FACTUAL AND PROCEDURAL BACKGROUND2

I. Rutan’s Appointment as Claremont’s City Attorney

Best, Best and Krieger (BBK) served as the City Attorney 

for the City of Claremont (the City) for many years. In late 2016,

BBK represented the City in an eminent domain lawsuit through 

which the City sought to acquire the local water system. The 

City lost the lawsuit, and BBK represented the City on appeal. 

While the appeal was pending, the City engaged Rutan “to 

attempt to negotiate a consensual purchase of the water system.”

When that effort failed, the City engaged Rutan to negotiate a 

settlement of the eminent domain appeal in October 2017. BBK 

then resigned as City Attorney.

1 All undesignated statutory references are to the 

Government Code.

2 Consistent with the applicable standard of review, we draw 

our statement of facts, including quoting occasionally, from the

allegations of the complaint. (Rallo v. O’Brian (2020) 52 

Cal.App.5th 997, 1002.)
3

In November 2017, the City engaged Rutan to serve as City 

Attorney in an interim capacity while it searched for a 

permanent replacement. “At the end of the search process, the 

Council identified six law firms which it deemed qualified to 

serve as City Attorney. From these six firms, the Council chose 

Rutan. During the regularly scheduled [C]ity [C]ouncil meeting 

on March 13, 2018, the Council formally considered the approval 

of a [l]egal [s]ervices [a]greement under which Rutan would serve 

as the permanent City Attorney.”

Before the City Council’s vote on the legal services 

agreement, members of the public were invited to comment. 

Plaintiff, a resident of Claremont, California, objected to the legal 

services agreement with Rutan. Plaintiff thought the City should

pursue a malpractice lawsuit against BBK for bringing and losing

the eminent domain case, and he asserted that Rutan was 

unqualified to advise the City on such matters because Rutan 

served as co-counsel with BBK in the eminent domain case. 

Plaintiff also told the City Council that because “Rutan had a 

financial interest in the agreement under consideration, the firm 

could not participate in the Council’s decision-making process in 

any way; and that if the Council wanted further guidance 

concerning the [p]laintiff’s claim that Rutan had a conflict of

interest with respect to potential legal action against BBK, the 

Council needed to retain a non-Rutan attorney to provide that 

guidance.”

Jeffrey Oderman, a partner in the Rutan firm who had 

been designated by Rutan to serve as the interim City Attorney, 

was present at the March 13th meeting in that capacity. 

Following plaintiff’s comments, one of the Council members 

asked Oderman if there was any merit to plaintiff’s conflict of 
4

interest objection. Oderman responded that he “was 

(temporarily) not the City Attorney; that he was not providing 

legal advice to the Council; that he had a conflict of interest 

providing legal advice to the Council with regard to the 

agreement under consideration; and that if the Council wished to 

obtain legal advice to address [p]laintiff’s concerns, the Council 

would have to find another attorney to do so.” 

“Oderman then proceeded to tell the Council that ‘speaking 

as sort of an applicant before you’ – and not as the City Attorney 

– he did not agree at all that there was any conflict of interest 

because of a potential claim that the City may make against 

BBK.” “Another council member then asked Mr. Oderman if he 

agreed that the City could not pursue legal action against BBK 

until after the [California Fair Political Practices Commission

(FPPC)] completed its investigation and issued a decision. After 

again stating that he was not speaking as the City Attorney, he 

responded that he absolutely agreed with that contention.”

3

The City Council then unanimously approved the legal 

services agreement, appointing Rutan as the permanent City 

Attorney.

3 “Plaintiff filed a complaint with the [FPPC] . . . in which he 

alleged that BBK had violated conflict of interest laws by 

participating in the City Council’s decision to initiate the eminent 

domain with the foreknowledge that BBK would be able to collect 

millions of dollars in litigation fees if the Council approved the 

takeover attempt.” After investigating, in July 2018, the FPPC

“closed its investigation of [p]laintiff’s complaint and took no 

action against BBK.”
5

II. Plaintiff’s Lawsuit

In July 2022, plaintiff sued Rutan, alleging a single cause 

of action for violation of section 87100. Section 87100 states: 

“A public official at any level of state or local government shall 

not make, participate in making, or in any way attempt to use 

the public official’s official position to influence a governmental 

decision in which the official knows or has reason to know the

official has a financial interest.” Plaintiff asserts that Rutan, as 

acting interim City Attorney, was a public official under section 

87200, and it knowingly used its official position to influence the 

City Council’s decision in its favor to secure the City Attorney 

legal services agreement at the March 13, 2018 City Council 

meeting.

Plaintiff alleges that “Rutan has billed and collected more 

than $1 million for services rendered to the City under the [legal 

services agreement].” Plaintiff prayed for a final judgment 

ordering Rutan “to pay damages of three times the amount of 

economic benefit realized by [Rutan],” with half of those damages 

paid to plaintiff pursuant to sections 91005, subdivision (b), and 

91009.

III. Demurrer

Rutan demurred to the complaint. Rutan argued that it did 

not violate section 87100 because it expressly represented itself, 

not the City, when it responded to plaintiff’s objections at the 

City Council meeting. Rutan also asserted its commentary at the 

City Council meeting was related to terms of its employment and 

therefore was authorized by California Code of Regulations, title 

2, section 18704 (2CCR § 18704), subdivision (d)(3).

Rutan also argued its public comment was statutorily 

protected by section 87105, which allows a public official with a 
6

financial interest in a decision to participate in public comment 

after the official has made appropriate disclosures. Rutan 

asserted it made such disclosures and thus could respond to 

plaintiff’s objection.

Plaintiff opposed the demurrer, arguing that Rutan 

participated at the meeting in its official capacity as interim City 

Attorney and therefore was not free to participate as a member of 

the public. Plaintiff asserted that Rutan’s commentary at the 

meeting had nothing to do with its compensation or terms and 

conditions of its employment because the sole “interchange” 

alleged between Oderman and the City Council was about 

plaintiff’s objection to Rutan’s asserted conflict of interest. 

Plaintiff also argued that Rutan failed to comply with section 

87105 such that it could participate in public comment.

The trial court sustained the demurrer without leave to

amend. Citing 2CCR section 18704, subdivision (d)(3), the trial 

court found that “it is apparent from the face of the Complaint 

that [Rutan] did not violate Government Code section 87100 

because it was commenting on matters concerning its own 

employment or compensation, or the terms, conditions, or 

circumstances of its employment, in response to specific questions 

from official decision makers, in this case, the Council.” The 

court also agreed with Rutan that under section 87105, it could 

participate in the City Council meeting as it had because 

Oderman disclosed the potential conflict of interest and then 

responded to questions about the conflict of interest only as an 

applicant on behalf of Rutan and not in the capacity of a public 

official.
7

Plaintiff moved for reconsideration of the court’s order 

sustaining the demurrer without leave to amend. The trial court 

denied the motion.

In December 2023, the court entered a judgment of 

dismissal in favor of Rutan and against plaintiff. Plaintiff timely 

appealed.

DISCUSSION

Plaintiff argues he sufficiently alleged the elements of a 

section 87100 violation, and the trial court abused its discretion 

in denying leave to amend. We disagree.

I. Standard of Review

“We review an order sustaining a demurrer de novo, 

applying our independent judgment to assess whether the 

complaint states a cause of action. (Minton v. Dignity Health

(2019) 39 Cal.App.5th 1155, 1161 [].) We assume the truth of all 

properly pleaded facts, as well as all facts that may be implied or 

reasonably inferred from those expressly alleged, but we do not 

assume the truth of contentions, deductions, or conclusions of fact 

or law.” (Sonoma Luxury Resort LLC v. California Regional 

Water Quality Control Bd. (2023) 96 Cal.App.5th 935, 940.) “We 

also ‘consider judicially noticed matters.’ ” (E-Fab, Inc. v. 

Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)

“ ‘In order to prevail on appeal from an order sustaining a 

demurrer, the appellant must affirmatively demonstrate error. 

Specifically, the appellant must show that the facts pleaded are 

sufficient to establish every element of a cause of action and 

overcome all legal grounds on which the trial court sustained the 

demurrer.’ ” (Save Lafayette Trees v. East Bay Regional Park 

Dist. (2021) 66 Cal.App.5th 21, 35.)
8

Whether the trial court should have granted leave to 

amend “is reviewed under the abuse of discretion standard, 

although error is shown if there is any reasonable probability an 

amendment that cures the defect can be made. Appellants bear 

the burden on appeal of showing a reasonable possibility exists 

that the complaint can be successfully amended.” (Fischer v. 

Time Warner Cable Inc. (2015) 234 Cal.App.4th 784, 790.)

II. Applicable Law

The voters adopted the Political Reform Act (PRA) in 1974

through the passage of Proposition 9. (Consumers Union of U.S., 

Inc. v. California Milk Producers Advisory Bd. (1978) 82 

Cal.App.3d 433, 436.) As relevant here, section 87100 provides 

that “a public official at any level of state or local government 

shall not make, 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.” A public official has a financial interest in a decision “if 

it is reasonably foreseeable that the decision will have a material 

financial effect, distinguishable from its effect on the public 

generally.” (§ 87103; see also Santa Clarita Organization for 

Planning & the Environment v. Abercrombie (2015) 

240 Cal.App.4th 300, 313–314.) However, notwithstanding 

section 87100, a public official who has a financial interest in a 

governmental decision may “speak on the issue during the time 

that the general public speaks on the issue” if the public official 

does all of the following: “(1) [p]ublicly identif[ies] the financial 

interest that gives rise to the conflict of interest or potential 

conflict of interest”; “(2) [r]ecuse[s] the public official’s own self 

from discussing and voting on the matter, or otherwise acting in 

violation of Section 87100”; and “(3) [l]eave[s] the room until after 
9

the discussion, vote, and any other disposition of the matter is 

concluded.” (§ 87105.)

Pursuant to the PRA’s implementing regulations,4 a “public 

official participates in a governmental decision if the official 

provides information, an opinion, or a recommendation for the 

purpose of affecting the decision without significant intervening 

substantive review.” (2CCR § 18704, subd. (b).) A public official 

“uses an official position to influence a governmental decision” if 

the official “(1) Contacts or appears before any official in the 

official’s agency or in an agency subject to the authority or 

budgetary control of the official’s agency for the purpose of 

affecting a decision; or [¶] (2) Contacts or appears before any 

official in any other government agency for the purpose of 

affecting a decision, and the public official acts or purports to act 

within the official’s authority or on behalf of the official’s agency 

in making the contact.” (Id., subd. (c)(1)–(2).) However,

“[m]aking, participating in, or influencing a governmental 

decision does not include” “[a]ctions by a public official relating to 

compensation or the terms or conditions of the official’s 

employment or consulting contract.” (Id., subd. (d)(3).)

A member of the public may bring a civil action against 

“[a]ny designated employee or public official specified in 

Section 87200, except an elected state officer, who realizes an 

economic benefit as a result of a violation of Section 87100 or of a 

4 The FPPC “has primary responsibility for the impartial, 

effective administration and implementation” of the PRA. 

(§ 83111; see § 83116 [proceedings by the FPPC when there is 

probable cause of a PRA violation].) The FPPC “may adopt, 

amend and rescind rules and regulations to carry out the 

purposes and provisions” of the PRA. (§ 83112.)
10

disqualification provision of a conflict of interest code.” (§ 91005, 

subd. (b).) A public official may be liable in such an action “for an 

amount up to three times the value of the benefit.” (Ibid.) If a 

judgment is entered under this section, “the plaintiff shall receive 

fifty percent of the amount recovered” and “[t]he remaining fifty 

percent shall be deposited in the General Fund of the state.” 

(§ 91009.) 

III. Plaintiff Failed to Allege a Violation of Section 87100

Plaintiff contends he sufficiently alleged a violation of 

section 87100. As mentioned above, to state a claim under 

section 87100, plaintiff must have alleged that (1) Rutan was a 

public official and (2) participated in or attempted to use its 

official position to influence a governmental decision, (3) in which

it knew it had a financial interest. (§ 87100.) 

Elements one and three are clearly alleged. The complaint 

alleged that Rutan was the interim City Attorney, who is a

“public official” pursuant to section 87200. The complaint also 

alleged that Rutan had a known financial interest in the City 

Council’s decision to award Rutan the permanent City Attorney 

position. Specifically, the complaint alleged that plaintiff 

informed Oderman that Rutan had a financial interest in the 

agreement under consideration, and Oderman acknowledged 

Rutan’s conflict of interest by indicating he was not speaking as 

City Attorney but as an applicant. 

As to the second (and final) element, i.e. that Rutan

participated in or influenced the making of the governmental

decision, plaintiff alleged that at the March 13, 2018 City Council 

meeting, in response to a Council member’s request for comment, 

Rutan partner Oderman voiced his opinion that Rutan did not 

have a conflict of interest in representing the City as the City 
11

Attorney based on its relationship as former co-counsel with 

BBK. Rutan argues that Oderman’s comments at the City 

Council meeting did not constitute making, participating in, or 

influencing a governmental decision because the comments 

related to the terms or conditions of Rutan’s employment or 

consulting contract within the meaning of 2CCR section 18704,

subdivision (d)(3). Rutan contends Oderman’s statement that 

Rutan had no conflict of interest “represented an essential 

dialogue between a lawyer and a prospective client regarding a 

foundational aspect of the proposed engagement. And it 

obviously related to, and potentially impacted, the terms of the 

proposed [l]egal [s]ervices [a]greement. If Rutan had a genuine 

conflict of interest, that conflict would have required Rutan to 

disclose the ‘relevant circumstances’ and ‘material risks’ of the 

conflict and proposed representation, and then obtain 

Claremont’s informed written consent thereto. [Citations.] A 

genuine conflict may also have required some express limitation 

on Rutan’s role or the scope of its responsibilities as they were 

defined in the proposed [l]egal [s]ervices [a]greement. (Id.)” 

We agree that Oderman’s verbal assurance to the City 

Council that there was no conflict of interest was an action 

“relating to . . . the terms or conditions of [Rutan]’s employment 

or consulting contract.” (See 2CCR § 18704, subd. (d)(3).) As 

Rutan points out, lawyers are subject to special rules of 

professional responsibility and conduct, under which lawyers owe 

their clients a duty of loyalty. (Flatt v. Superior Court (1994) 

9 Cal.4th 275, 282.) Where there is a conflict of interest, an 

attorney must make appropriate disclosures and obtain informed 

written consent from the client. (Ibid.; Rules Prof. Conduct, rule 

1.7 [requiring “informed written consent” from client if “there is a 
12

significant risk the lawyer’s representation of the client will be 

materially limited by the lawyer’s responsibilities to or 

relationships with” others].) As the existence of a conflict of 

interest would impact the scope of Rutan’s representation and 

perhaps influence whether Rutan could represent the City at all, 

Oderman’s statements were unquestionably related to the terms 

and conditions of the legal services agreement, which was a 

proposed employment or consulting contract within the meaning 

of the regulations. We therefore conclude Rutan did not violate 

section 87100 when speaking on that issue at the City Council 

meeting.

5 

5 We note that there are few cases applying section 87100 

and none that deal with whether a public official’s action is 

related to its terms and conditions of employment pursuant to 

2CCR section 18704, subdivision (d)(3). Both parties cite 

Campagna, supra, 42 Cal.App.4th 533 for support, but we do not 

find Campagna instructive. In Campagna, a city contracted with 

an attorney for the provision of certain legal services as a deputy 

city attorney. (Id. at p. 536.) The attorney then retained an 

outside law firm to litigate on a contingency fee basis on the city’s 

behalf; the attorney also negotiated a separate oral agreement,

the “referral fee agreement,” with the outside law firm whereby 

his firm would receive a percentage of the total contingency fee. 

(Ibid.) Before the underlying litigation went to trial, the city 

asserted it was unlawful for the attorney to have an interest in 

the contract that he negotiated on behalf of the city in his official 

capacity. After the underlying litigation settled, the city insisted 

that the attorney not be paid his share of the fee. The attorney 

sued for declaratory relief. (Id. at pp. 536–537.) A judgment for 

the attorney was reversed on appeal. The appellate court 

concluded the attorney acted as a private attorney in negotiating 

the contingency fee between his firm and the city, but acted in an 
13

Plaintiff argues we should not apply 2CCR section 18704, 

subdivision (d)(3) here because doing so would frustrate the 

purpose of section 87100. We disagree. “[T]he whole purpose of 

the Political Reform Act of 1974 is to preclude a government 

official from participating in decisions where it appears he may 

not be totally objective because the outcome will likely benefit a 

corporation or individual by whom he is also employed.” (Witt v. 

Morrow (1977) 70 Cal.App.3d 817, 822–823.) The exception 

embodied by 2CCR section 18704, subdivision (d)(3) does not 

undermine that objective, but rather permits employees to 

communicate with employers about terms and conditions of 

employment. That is exactly what is alleged to have occurred at

the City Council meeting in response to plaintiff’s objection. 

Plaintiff also argues that Rutan improperly raised an 

affirmative defense on demurrer by arguing the exception under 

2CCR section 18704, subdivision (d)(3). In support, plaintiff cites 

G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 273 (G.H.I.I.) for 

the proposition that at this stage of proceedings, he was not 

required to affirmatively disclaim that Rutan was not acting in 

relation to a term or condition of its employment. 

G.H.I.I. is inapposite. There, plaintiffs sued defendants for 

“ ‘locality discrimination’ ” under section 17040 of the Business 

and Professions Code—that is, for selling or furnishing an article 

official capacity in choosing the associated firm and negotiating

the referral fee agreement with it, rendering him liable under 

section 1090. (Id. at pp. 541–542.) Not only does Campagna not 

address a violation of section 87100, but it does not address the 

issue at the heart of this appeal: whether Rutan’s denial of a 

conflict of interest at the City Council meeting was related to the 

terms and conditions of its employment as City Attorney.
14

or product at a lower price in one location than in another. 

Significantly, section 17041 of the Business and Professions Code 

permitted such discrimination if allowances were made for 

“grade, quality, quantity or cost of transportation.” (Id. at 

p. 272.) On demurrer, defendants challenged the locality 

discrimination cause of action as “vague and defective for lack of 

essential allegations that the price differences cited were not 

justified by such differences in grade, quality, quantity or cost of 

transportation.” (Ibid., italics added.) The appellate court 

concluded plaintiffs were not required to plead that the price 

differences were not justified by grade, quality, quantity, or cost 

of transportation as required by the second statute. The court

explained the plaintiff need only plead facts in support of each of 

the requirements of a statute upon which a cause of action is 

based, and need not plead facts negating exceptions to liability 

found in subsequent sections of the act. (Id. at p. 273)

G.H.I.I. does not support plaintiff’s argument. We are not 

concluding, nor is Rutan arguing, that plaintiff failed to plead 

facts to negate an exception to liability under section 87100. Our 

decision is not based on a lack of essential allegations. Rather, 

we conclude plaintiff’s allegations demonstrate that Rutan’s 

conduct was not actionable under section 87100 as a matter of 

law. Accordingly, the trial court properly sustained Rutan’s 

demurrer to the complaint. 

IV. The Trial Court Did Not Abuse Its Discretion in 

Denying Leave to Amend

Plaintiff asserts the trial court abused its discretion in 

denying leave to amend the complaint. In his motion for 
15

reconsideration,

6 plaintiff proposed amending the complaint with 

the following facts: (1) “The Permanent Legal Services Contract 

was negotiated, published, and publicly disseminated on March 

8, 2018 – five days before the March 13, 2018 Council Meeting”; 

(2) “The question posed to Mr. Oderman by the Council did not 

relate to Defendant’s compensation or any of the terms and 

conditions of the contract”; (3) “Mr. Oderman did not speak 

during the time set aside for public comment”; and (4) “Neither 

Defendant nor Mr. Oderman had a personal interest in the legal 

services contract as defined in” 2CCR section 18704, subdivision 

(d)(2).

None of these factual allegations remedy the defect in this 

case by showing Rutan participated in or influenced a 

governmental decision pursuant to section 87100. The first, 

third, and fourth facts are not relevant to showing that Rutan 

influenced or participated in the City Council’s decision. The 

second “fact” is a legal conclusion, not a factual allegation,

expressly contradictory to our legal analysis of the complaint and 

relevant law. This legal conclusion likewise fails to remedy the 

complaint’s deficiency. (See Thrifty Payless, Inc. v. The 

Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1238

[court assumes the truth of the allegations in the complaint, but 

not the truth of contentions, deductions, or conclusions of law].) 

6 Plaintiff asserts that prior to the trial court sustaining the 

demurrer, he was not given an opportunity to address how he 

could amend the complaint and therefore he filed the motion for 

reconsideration stating these additional facts he could allege to 

amend his complaint.
16

Plaintiff does not assert any other amendments would cure 

the deficient complaint. As such, we conclude there was no abuse 

of discretion in denying leave to amend. 

DISPOSITION

The judgment is affirmed. Defendant and respondent 

Rutan & Tucker LLP is awarded its costs on appeal.

EDMON, P. J.

We concur:

EGERTON, J.

ADAMS, J.