1

Filed 3/9/21 Ryan v. City of Roseville CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

RICHARD RYAN et al.,

Plaintiffs and Appellants,

v.

CITY OF ROSEVILLE et al.,

Defendants and Respondents.

C090903

(Super. Ct. No. SCV0041974)

Plaintiffs Richard and David Ryan appeal from a judgment of dismissal after the 

trial court sustained the City of Roseville’s and University Development Foundation’s

demurrers to their third amended petition for writ of mandate and complaint without 

leave to amend. Plaintiffs argue the trial court erred in dismissing their second and fourth

causes of action with prejudice. Plaintiffs have failed to demonstrate any error. 

Accordingly, we will affirm the judgment.
2

I. BACKGROUND

The operative petition for writ of mandate and complaint purports to state four 

causes of action against the City. The fourth cause of action was also asserted against 

University Development Foundation. The City demurred to the entire complaint on the 

ground that it failed to state facts sufficient to constitute a cause of action. (Code Civ. 

Proc., § 430.10, subd. (e).) University Development Foundation demurred to the fourth 

cause of action on the same ground. The City also demurred to the second cause of 

action on the grounds that it was uncertain, ambiguous, and unintelligible. (Id., subd. 

(f).) 

The court sustained both demurrers based on the failure to state facts sufficient to 

constitute a cause of action. The court explained “[t]he allegations within the [third 

amended complaint] are rambling, vague, and conclusory” and “insufficient to support 

any of the causes of action, even when the pleading is given the broadest of readings.” 

The court stated that, at the hearing, “plaintiffs focused their argument on the fourth 

cause of action, thereby virtually conceding the merits of [the City]’s demurrer to any 

other causes of action.” The court sustained the demurrers without leave to amend. The 

court indicated plaintiffs had conceded a cause of action could not be maintained against 

University Development Foundation. Additionally, “plaintiffs essentially stood on the 

sufficiency of their pleading and did not request leave to amend. Plaintiffs have failed to 

make a sufficient showing as to how they could remedy the numerous defects” in the 

operative pleading. 

The court entered a judgment of dismissal with prejudice. Plaintiffs filed an 

appeal from the judgment. 

II. DISCUSSION

A. Standard of Review

“It is well established that a demurrer tests the legal sufficiency of the complaint. 

[Citations.] On appeal from a dismissal entered after an order sustaining a demurrer, we 
3

review the order de novo, exercising our independent judgment about whether the

petition states a cause of action as a matter of law. [Citations.] We give the petition a 

reasonable interpretation, reading it as a whole and viewing its parts in context. 

[Citations.] We deem to be true all material facts that were properly pled. [Citation.] 

We must also accept as true those facts that may be implied or inferred from those 

expressly alleged. [Citation.] We may also consider matters that may be judicially 

noticed, but do not accept contentions, deductions or conclusions of fact or law.” (City of 

Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 

869-870; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“If the court sustained the demurrer without leave to amend, as here, we must 

decide whether there is a reasonable possibility the plaintiff could cure the defect with an 

amendment. [Citation.] If we find that an amendment could cure the defect, we conclude 

that the trial court abused its discretion and we reverse; if not, no abuse of discretion has 

occurred. [Citation.] The plaintiff has the burden of proving that an amendment would 

cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Even under de novo review, orders and judgments are presumed to be correct, and 

the appellant must affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564.) “To demonstrate error, appellant must present meaningful legal analysis 

supported by citations to authority and citations to facts in the record that support the 

claim of error. [Citations.] When a point is asserted without argument and authority for 

the proposition, ‘it is deemed to be without foundation and requires no discussion by the 

reviewing court.’ [Citations.] Hence, conclusory claims of error will fail.” (In re S.C. 

(2006) 138 Cal.App.4th 396, 408.) With respect to citations to the record, the appellant 

must “[s]upport any reference to a matter in the record by a citation to the volume and 

page number of the record where the matter appears. If any part of the record is 

submitted in an electronic format, citations to that part must identify, with the same 

specificity required for the printed record, the place in the record where the matter 
4

appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) “If a party fails to 

support an argument with the necessary citations to the record, that portion of the brief 

may be stricken and the argument deemed to have been waived.” (Duarte v. Chino 

Community Hospital (1999) 72 Cal.App.4th 849, 856.) Plaintiffs’ opening brief referred 

to what we determined to be paragraphs in their complaint, but did not offer a single 

citation to a page in their appendix or the reporter’s transcript where the complaint or any 

other relevant information could be found. “ ‘The reviewing court is not required to 

make an independent, unassisted study of the record in search of error or grounds to 

support the judgment.’ ” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) 

Additionally, any arguments raised or only supported by authority on reply have been 

waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)1 

On appeal, plaintiffs argue [,]the trial court erred by sustaining the demurrers to 

the second and fourth causes of action without leave to amend. Despite plaintiffs’ failure 

to offer adequate citations to the record to present these issues, but keeping in mind the 

above principles, we will discuss these causes of action briefly.

B. Public Records Act

Plaintiffs’ second cause of action purports to be a petition for writ of mandate 

based on a violation of the California Public Records Act. (Gov. Code, § 6250 et seq.)2 

1

 Defendants submitted a joint objection to plaintiffs’ reply brief, arguing that the belated 

reply brief improperly raised arguments not asserted in the opening brief (or in the trial 

court) and did not even attempt to show good cause for failing to present them earlier. 

Defendants requested that we disregard the reply brief and, in particular, the points 

asserted for the first time on reply. While we have not stricken the brief entirely, we have 

not considered any points that were raised for the first time on reply. (High Sierra Rural 

Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2.)

2

 Undesignated statutory references are to the Government Code.
5

Plaintiffs’ opening brief refers to the following factual allegations contained in their 

complaint:

“11. . . . [C]urrent and former members of the [city] council and some city staff 

use private electronic communication (collectively referred to as ‘emails’) for [city-

] related business. 

“12. [Richard Ryan] has made [Public Records Act] requests that specifically 

requested these private electronic communications. 

“13. . . . [Richard Ryan] alleges that these private emails have [n]ot been 

provided. That the use of private emails has intentionally been the practice for the 

purpose of removing these emails from public records and [Public Records Act]

disclosure. That there have been a great number of such emails that have not been 

disclosed, including the responses to requests made on 1/2/18 requesting the city council 

members provide private emails with AKT [Group] (and related companies), Warwick 

University and [University Development Foundation]. 

“14. That if the private email communications had been conducted on [City]

email accounts, they would have been discoverable by staff conducting [Public Records 

Act] responses.” 

Plaintiffs also alleged emails on city email accounts “are routinely purged” and 

“public record emails conducted on private servers are not routinely turned over to the 

City for preservation as public records.” 

Plaintiffs requested various forms of relief based on these allegations, including a 

declaration pursuant to Code of Civil Procedure section 1060 that private emails, when 

used for City business, are public records. Plaintiffs also sought a writ requiring the 

production of private emails and other electronic communications used by city council 

members, commission members, and staff pertaining to City business. Additionally, 

plaintiffs requested an order prohibiting the City from purging or deleting public record 

emails. Plaintiffs requested “that all private emails containing [city] business be, as soon 
6

as possible after creation, delivered to the City and that the [City] permanently maintain 

these emails as public records.” 

In demurring to Ryan’s complaint, the City of Roseville argued the second cause 

of action did not allege a controversy under the Public Records Act. The City argued that 

while it had a duty to disclose public records, it was only required to retain records for at 

most two years. (§ 34090, subd. (d).) The City argued plaintiffs “only identify one 

[Public Records Act] request [Richard] Ryan made on January 2, 2018[,] but fail to allege 

the City improperly withheld records or failed to conduct a reasonable search in response 

to this request.” The City argued the cause of action was vague and uncertain because it 

did not allege any reasonably focused or specific request and the purported deficiencies 

with the response. The City also argued no controversy exists because, under an 

administrative regulation, the City already treats private emails about City business as 

public records. The City requested judicial notice of this regulation. In their opposing 

brief, plaintiffs did not refer to any specific Public Records Act request or seek leave to 

amend. 

The court granted the City’s request for judicial notice and sustained the City’s 

demurrer on the ground that the complaint did not state facts sufficient to constitute a 

cause of action.

3

 (Code Civ. Proc., § 430.10, subd. (e).) The court added that the 

allegations in the complaint were “rambling, vague, and conclusory” and, as relevant 

here, failed to specifically identify the actions taken. 

Public records are open to inspection and every person has a right to inspect every 

public record, subject to certain exceptions. (§ 6253, subd. (a).) As long as there is no 

3

 We deferred ruling on the request for judicial notice filed by the City in this appeal, 

and now take notice of the referenced administrative regulations and portions of the 

Roseville City Charter. We deny the motion with respect to the other items as 

unnecessary to the issues before us. Nonetheless, we will observe that plaintiffs have not 

asserted that the trial court erred in taking judicial notice of any of the overlapping items. 
7

exemption from disclosure, if a person makes a request that “reasonably describes an 

identifiable record or records,” those records are to be made promptly available. (Id., 

subd. (b).)

“The [Public Records] Act sets forth specific procedures for seeking a judicial 

determination of a public agency’s obligation to disclose records in the event the agency 

denies a request by a member of the public. ‘Any person may institute proceedings for 

injunctive or declarative relief or writ of mandate in any court of competent jurisdiction 

to enforce his or her right to inspect or to receive a copy of any public record or class of 

public records under [the Act].’ (§ 6258.) . . . [¶] . . . If it appears from the plaintiff’s 

verified petition that ‘certain public records are being improperly withheld from a 

member of the public,’ the court must order the individual withholding the records to 

disclose them or to show cause why he or she should not do so. (§ 6259, subd. (a).)” 

(Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426.) 

To the extent we have overlooked plaintiffs’ forfeiture of the issue, we must 

conclude their petition made no such showing. As the City notes, the petition is vague as 

to the requests that were made. To the extent the petition suggests one specific request 

was made for city council members to provide emails with certain entities, plaintiffs did 

not specify who this request was made to or what response was provided. On appeal, to 

support the suggestion that they stated a claim under the Public Records Act, plaintiffs 

rely almost entirely on City of San Jose v. Superior Court (2017) 2 Cal.5th 608, in which 

our Supreme Court held that “when a city employee uses a personal account to 

communicate about the conduct of public business, the writings may be subject to 

disclosure under the California Public Records Act.” (Id. at p. 614.) In that action, the 

city “claimed all communications in personal accounts are beyond the reach of the 

[Act].” (Id. at p. 618.) Here, the City makes no such claim. Rather, it asserts it follows 

the rule articulated in City of San Jose. And plaintiffs’ second cause of action does not 

allege the City nonetheless claimed that personal email accounts were beyond the reach 
8

of the Public Records Act as a basis to avoid producing documents responsive to a proper 

request. 

Additionally, “[t]he court’s order either directing disclosure by a public official or 

supporting the decision to refuse disclosure ‘is not a final judgment or order within the 

meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be 

taken, but shall be immediately reviewable by petition to the appellate court for the 

issuance of an extraordinary writ’ filed within 20 days after service of the notice of entry 

of the order, or within an additional 20 days as the trial court may allow for good cause. 

(§ 6259, subd. (c).)” (Filarsky v. Superior Court, supra, 28 Cal.4th at p. 426.) Plaintiffs’

appeal was filed more than 40 days after the notice of entry of judgment was served in 

this case. Thus, even if we were inclined to overlook their forfeiture of the issue, it 

appears we lack jurisdiction to address the trial court’s order to the extent it supported a 

decision to refuse to disclose. (MinCal Consumer Law Group v. Carlsbad Police Dept. 

(2013) 214 Cal.App.4th 259, 263-266.) 

In sum, plaintiffs have failed to demonstrate any basis for us to reverse the trial 

court’s dismissal of their second cause of action with prejudice.

C. Sale of Fire Station

Plaintiffs’ fourth cause of action sought a writ of mandate to set aside the City’s 

sale of a fire station to University Development Foundation as an unconstitutional gift of 

public property and a violation of due process. Plaintiffs’ opening brief only offers legal 

authority to support its assertion that the sale was an unconstitutional gift under article 

XVI, section 6 of the California Constitution. As such, to the extent we will overlook the 

other issues in their briefing to discuss the fourth cause of action, we will only address 

the allegation that the sale violated article XVI, section 6 of the California Constitution. 

(See In re S.C., supra, 138 Cal.App.4th at p. 408 [“appellant must present meaningful 

legal analysis supported by citations to authority”].) And this argument fails because the

constitutional provision has no application to the City of Roseville, which, plaintiffs do 
9

not dispute, is a charter city. “By its terms, article XVI, section 6 of the state 

Constitution prevents the Legislature from making or authorizing any gift of public funds 

for private purposes. This prohibition applies to counties and general law cities.” 

(Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 637, superseded by 

statute on other grounds; see Cal. Const., art. XVI, § 6 [“The Legislature shall have no 

power to . . . make any gift or authorize the making of any gift, of any public money or 

thing of value to any individual, municipal or other corporation whatever”].) Simply put, 

“[t]he constitutional ban on gifts of public funds does not apply to charter cities.” 

(Sturgeon, supra, at p. 637, fn. 5.) This is because the powers of a charter city are not 

derived from the Legislature. (Tevis v. City & County of San Francisco (1954) 43 Cal.2d 

190, 197; Los Angeles Gas & Elec. Corp. v. City of Los Angeles (1922) 188 Cal. 307, 

317.) Therefore, plaintiffs have failed to demonstrate the trial court erred in dismissing 

their fourth cause of action.

Plaintiffs have also failed to demonstrate the trial court abused its discretion in 

granting the demurrers without leave to amend. In their opening brief, they state that 

“[i]f leave to amend were granted, a specific allegation could be made that the Roseville 

Charter does not allow for gifts and that the provision relied upon by the City 

4.12.110(B) is contrary to the City Charter and is void.” This is a legal conclusion, and it 

is unsupported. In particular, plaintiffs cite nothing in Roseville’s charter to support their

argument. As such, they have failed to demonstrate an amendment would cure the 

defects in their pleading.
10

III. DISPOSITION

The judgment is affirmed. The City of Roseville and University Development 

Foundation shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & 

(2).)

/S/

 

RENNER, J.

We concur:

/S/

 

MAURO, Acting P. J.

/S/

 

KRAUSE, J.