SPRAWLDEF et al v. City of Richmond et al

Filing 127

ORDER by Judge Yvonne Gonzalez Rogers denying 103 Motion for Preliminary Injunction; denying 126 Motion for TRO. (fs, COURT STAFF) (Filed on 8/14/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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SPRAWLDEF, ET AL.,
Petitioners,

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vs.
CITY OF RICHMOND, ET AL.,

CASE NO. 18-cv-03918-YGR
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION AND MOTION
FOR TEMPORARY RESTRAINING ORDER
Dkt. Nos. 103, 126

Respondents.

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Petitioners Paul Carman, Citizens for East Shore Parks, James Hanson, SPRAWLDEF,

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Pamela Stello, and Tony Sustak bring the instant petition against respondents Mayor Tom Butt,

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City of Richmond, and Richmond City Council (collectively, “the City”). The petition alleges a

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violation of California’s Brown Act, Government Code §§ 54950 et seq. arising from approval of

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a settlement agreement and the resulting judgment in the underlying action, Guidiville Rancheria

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of Cal. v. United States of Am., Northern District of California Case No. 12-cv1326-YGR (“the

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Guidiville action”).

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Presently before the Court are two motions filed by petitioners:

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(1) A motion for preliminary injunction, filed April 11, 2020, seeking to bar respondents

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herein from proceeding further on implementation of the settlement agreement and judgment in

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the Guidiville action and preserve the status quo pending an appeal by respondent Guidiville

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Rancheria of California (“the Tribe”). (Dkt. No. 103.) The Court heard arguments on this motion

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on May 19, 2020, and at that time set a schedule for supplemental briefing on the specifics of the

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remedy petitioners seek in the petition. Supplemental briefing was completed on July 21, 2020.

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(See Dkt. Nos. 121, 122, 124.)
(2) A motion for a temporary restraining order, filed August 10, 2020, likewise seeking to

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bar implementation of the Guidiville action pending the Court’s decision on the preliminary

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injunction.
The Court, having carefully reviewed the completed briefing and oral argument on the

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preliminary injunction, as well as petitioners’ motion for temporary restraining order and the

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record of the proceedings, and for the reasons stated herein, rules as follows:
(1) the motion for preliminary injunction is DENIED for failure to establish a likelihood of

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United States District Court
Northern District of California

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success on the merits;
(2) the motion for temporary restraining order is DENIED AS MOOT.

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I.

The Instant Petition
The petition herein alleges a violation of California’s Brown Act based upon respondents’

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approval of a settlement agreement in Guidiville Rancheria of Cal. v. United States of Am.,

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Northern District of California Case No. 12-cv-1326 YGR (“Guidiville”) and the resulting

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judgment entered therein. In that action, the City, Upstream Point Molate LLC (“Upstream”), and

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the Tribe settled litigation concerning breach of a land disposition agreement (LDA) related to

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Point Molate. The City, Upstream, and the Tribe were parties to the settlement agreement, which

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was memorialized in the form of judgment submitted to and entered by the Court in the Guidiville

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action on April 12, 2018. (Id. at Dkt. No. 361 [“Original Judgment”].)

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Petitioners allege that the settlement agreement and Original Judgment provided

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entitlements to certain land use approvals for development at Point Molate, and that the settlement

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agreement was required to have been approved in open session of the City Council. The City

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disputes any Brown Act violation, contending that the statute contains an express exception that

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permitted the City to approve a litigation settlement in closed session.

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II.

Summary of Procedural History
What follows is a brief summary of the relevant history of this litigation, following from

respondents’ removal of the petition to this Court:

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The City filed its motion to dismiss the petition on July 20, 2018. (Dkt. No. 12.) After the

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hearing, the motion was withdrawn and a schedule for submission of an administrative record and

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briefing was issued. Following the Court’s inquiry as to whether the parties to the underlying

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settlement agreement—Upstream and the Tribe—should be named as real parties in interest,

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petitioners amended their petition to name them as respondents. (Dkt. No. 32.)

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The Tribe then moved to dismiss the petition on grounds of sovereign immunity, which
this Court denied in an order issued June 19, 2019. (Dkt. No. 58.) That decision was appealed by

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Northern District of California

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the Tribe, and the appeal remains pending as of the date of this Order. (See SPRAWLDEF v.

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Guidiville Rancheria of Cal., Ninth Circuit Docket No. 19-16278.)

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Petitioners filed their first motion for preliminary injunction to enjoin Respondents “from

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making, planning or enacting any administrative approvals, hearings, environmental analyses,

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studies, expenditures, contracts, agreements, negotiations and any other action in furtherance of

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the Guidiville settlement.” (Dkt. No. 68 at 4.) At the Court’s suggestion, the parties agreed to

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return to Judge Spero for settlement discussions, and petitioners withdrew their motion for

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preliminary injunction without prejudice. (Dkt. No. 78.) The parties participated in a settlement

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conference with Judge Spero on October 23, 2019, but did not reach a resolution of the petition.

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(Dkt. No. 86.)

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Following the settlement conference, the City, Tribe, and Upstream agreed to a proposed

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Amended Judgment in the Guidiville action. The City contends the proposed Amended Judgment

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added language to confirm that the City retained discretion regarding any entitlements in

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connection with development at Point Molate. The Richmond City Council held a public hearing

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during its November 5, 2019, City Council meeting to consider approval of the proposed

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Amended Judgment. (Dkt. No. 88, Request for Judicial Notice (“RJN”), Exh. B [Amended

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Judgment].) The City represents that members of the public provided comments on this agenda

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item, including petitioners Pamela Stello and Tony Sustak, and the City Council held an open
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session vote, approving the proposed Amended Judgment.1 Petitioners did not move at that time

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for any injunctive relief.
Rather, on November 15, 2019, respondents moved for judgment on the petition on the

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grounds that the instant petition was moot as a result of actions it took in agendizing and holding a

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public hearing to approve an Amended Judgment in the Guidiville action. (Dkt. No. 87.) While

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respondents continued to dispute the merits of the petition, the City contended that the proposed

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Amended Judgment, approved by the City Council at an open session, cured any alleged Brown

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Act violation per California Government Code section 54960.1(e). (See Dkt. No. 87.)
After soliciting and reviewing the parties’ positions on the effect of the Tribe’s pending

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appeal on its jurisdiction to hear the motion for judgment on the pleadings, the Court issued an

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Northern District of California

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order on December 11, 2019, finding that it was without jurisdiction to consider that motion, since

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a decision on that motion likely would materially alter the status of the case on appeal (citing

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Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001)). (Dkt. No. 97.) Petitioners took no

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further action until the filing of the instant motion for preliminary injunction in April 2020.

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III.

DISCUSSION

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Petitioners now move for a preliminary injunction citing Federal Rule of Appellate

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Procedure 8(a)(1)(C), which allows a party to move in the district court for “an order suspending,

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modifying, restoring, or granting an injunction while an appeal is pending,” and Federal Rule of

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Civil Procedure 62, concerning stay of proceedings to enforce a judgment.2 Neither of these rules

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appears to address the injunction sought here—enjoining continued implementation of a judgment

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entered in another action, but procedurally challenged herein. Regardless, those Rules are subject

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to the same principles generally applicable to injunctive relief.

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A preliminary injunction is a matter of equitable discretion and is “an extraordinary

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remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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That proposed Amended Judgment was entered by the Court on November 21, 2019, in
the Guidiville action. (Guidiville, Case No. 12-cv-1326-YGR, Dkt. No. 410.)
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While petitioners cited to Rule 62(c), concerning stay of an injunction pending appeal,
the Court assumes from context that they intended to cite Rule 62(d) concerning injunctions
pending appeal. However, neither subsection appears to apply here, where the order appealed
from is not one to grant, modify, or dissolve an injunction.
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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking preliminary

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injunctive relief must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor,

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and that an injunction is in the public interest.” Id. at 20. Alternatively, an injunction may issue

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where “the likelihood of success is such that serious questions going to the merits were raised and

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the balance of hardships tips sharply in [plaintiffs’] favor,” provided that plaintiff can also

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demonstrate that the balance of equities and public interest favor such relief. All. for the Wild

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Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011) (citation and internal quotation marks

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omitted). “[A] court retains jurisdiction during the pendency of an appeal to act to preserve the

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status quo,” so long as it does not materially alter the status of the case on appeal. Nat. Res. Def.

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United States District Court
Northern District of California

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Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001).

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The Court finds that petitioners have failed to meet their burden on the essential first

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element of likelihood of success on the merits of their claim challenging the City’s procedures in

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acting to approve the original Guidiville settlement and judgment. The petition herein is an action

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under a provision of the Brown Act, Government Code section 54960.1, which provides:

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district attorney or any interested person may commence an action by mandamus
or injunction for the purpose of obtaining a judicial determination that an action
taken by a legislative body of a local agency in violation of Section 54953 [open
and public meetings], 54954.2 [agenda posting], 54954.5 [closed sessions],
54954.6 [increased taxes], 54956 [special meetings], or 54956.5 [emergency
situations] is null and void under this section. Nothing in this chapter shall be
construed to prevent a legislative body from curing or correcting an action
challenged pursuant to this section.

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Cal. Gov't Code § 54960.1(a) (emphasis supplied). “To state a cause of action, a complaint based

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on [section] 54960.1 must allege: (1) that a legislative body of a local agency violated one or more

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enumerated Brown Act statutes; (2) that there was ‘action taken’ by the local legislative body in

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connection with the violation; and (3) that before commencing the action, plaintiff made a timely

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demand of the legislative body to cure or correct the action alleged to have been taken in violation

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of the enumerated statutes, and the legislative body did not cure or correct the challenged action.”

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Bell v. Vista Unified Sch. Dist., 82 Cal.App.4th 672, 684-85 (2000). Section 54960.1(e) of the

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California Government Code provides:
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During any action seeking a judicial determination pursuant to subdivision (a) if
the court determines, pursuant to a showing by the legislative body that an action
alleged to have been taken in violation of Section 54953, 54954.2, 54954.5,
54954.6, 54956, or 54956.5 has been cured or corrected by a subsequent action of
the legislative body, the action filed pursuant to subdivision (a) shall be dismissed
with prejudice.

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Cal. Gov't Code § 54960.1(e) (emphasis supplied). Thus, the statute “anticipates potential

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correction following filing of the mandamus action.” Bell, 82 Cal.App.4th at 685 (emphasis

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supplied).
While petitioners contend that they already made a strong showing on the merits of their

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Brown Act violation in the opposition to the City’s 2018 motion to dismiss, petitioners overlook

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the changed factual circumstances following the hearing on that motion. Petitioners concede that

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Northern District of California

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the settlement agreement and judgment in the Guidiville action were amended. (See April 11,

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2020 Motion for Prelim. Inj., Dkt. No. 103 at 6:25-26, and Reply, Dkt. No. 111, passim.) Here,

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the record indicates, and petitioners do not dispute, that the amended settlement agreement and

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proposed Amended Judgment in the underlying Guidiville action were agendized and considered

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in an open meeting of the City Council and approved therein.3 Petitioners argue that the land use

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decisions of the original settlement, decided in a “secret deal” and closed session, are perpetuated

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by the Amended Judgment. But petitioners never explain why approval of those land use

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decisions in an agendized, open meeting of the City Council would not cure the Brown Act open

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meeting violation they alleged and therefore require dismissal of the petition herein. Cf. Fowler v.

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City of Lafayette, 46 Cal.App.5th 360, 371–72 (2020), as modified on denial of reh'g (Mar. 11,

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2020), review denied (July 22, 2020) (although city violated Brown Act by failing to disclose

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litigation threat regarding land use approval discussed in closed session, that violation did not

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support nullification of the land use approval in open session; section 54960.1 only authorizes

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nullification only of the action taken in violation of the specified statutes).

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While the Court cannot reach the merits of the underlying petition while the Tribe’s appeal
is pending, it must nevertheless take into account these factual developments in determining the

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While petitioners raised the specter of additional, potential (and unpleaded) Brown Act
violations in their reply, the record indicates the City cured those more recent issues.
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petitioners’ likelihood of success. Whatever claim petitioners might have brought concerning the

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substance of the Amended Judgment and the land use entitlements they allege it contains, the

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approval of the Amended Judgment in an open, noticed meeting appears to preclude petitioners’

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claim under the Brown Act.

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Petitioners’ citation to the Ninth Circuit’s recent decision in Cuviello v. City of Vallejo,

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944 F.3d 816, 824-825 (9th Cir. 2019) does not change this analysis. That case concerned

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amendment of an ordinance alleged to be in violation of the First Amendment right to free speech.

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The court there found that a post-litigation amendment of the ordinance, while a lesser incursion

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on those rights, continued to present constitutional problems. Id. Here, the Brown Act expressly
provides for an agency to take action to cure a violation during the pendency of a petition

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Northern District of California

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challenging that violation. Cal. Gov’t Code § 54960.1(e). Further, unlike the facts presented in

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Cuviello, the amended judgment apparently was approved in an open session of the City Council,

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such that it does not “threate[n] to harm a plaintiff in the same fundamental way” as the violation

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alleged in the petition here: approval of the original judgment in a closed session in violation of

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the Brown Act’s open meetings requirements.4

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While the Court wholeheartedly agrees that “[o]penness in government is essential to the

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functioning of a democracy,” International Federation of Professional & Technical Engineers,

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Local 21, AFL-CIO v. Superior Court, 42 Cal.4th 319, 328 (2007), the Brown Act specifically

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permits the legislative agency to cure defects in the open government process. The record here

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indicates that the City did so. Thus, petitioners have not met their burden to show that their

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Brown Act claim is likely to be viable in light of the City’s action to cure the defects alleged in the

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petition.

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Because petitioners have failed to meet this initial burden of likelihood of success, the
Court need not and does not consider the irreparable harm, balance of equities, and public interest

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Likewise, the Brown Act’s cure provisions make irrelevant petitioners’ citation to
Federal Trade Commission v. Consumer Defense, LLC, 926 F.3d 1208, 1214 (9th Cir. 2019), and
its holding that a traditional showing of irreparable injury is not required in cases involving
statutory enforcement. In the absence of a showing of likelihood of success, even a more lenient
standard for demonstrating irreparable harm will not warrant the extraordinary relief of an
injunction.
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factors stated in Winter.

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IV.

CONCLUSION

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In light of the foregoing, petitioners’ motion for a preliminary injunction is DENIED.

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Further, petitioners’ motion for a temporary restraining order pending decision on the preliminary

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injunction is now moot and is DENIED on that basis.

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This terminates Docket Nos. 103 and 126.

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IT IS SO ORDERED.

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Dated: August 14, 2020
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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United States District Court
Northern District of California

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