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DATE: 11/04/16 DEPT. 86
NONE DeputySheriff PATRICIA THAETE/CSR 8737 Reporter

9:32 am BS158628 Plaintiff
Counsel KELLY AVILES (x)
VS Counsel



Matter comes on for hearing and is argued . The court
takes the matter under submission.
LATER: The court rules as follows:
The court sustains respondent's objections to the
supplemental declaration of Kelly Aviles .
The petition for writ of mandate is denied for the
reasons set forth in the document entitled RULING
this date.
Counsel for respondent is to prepare, serve and lodge
the proposed judgment within ten days . The court will
hold the proposed judgment ten days for objections .
A copy of this minute order as well as the court's
Ruling are mailed via U.S. Mail to counsel of record
addressed as follows:
103-140, LA VERNE, CA 91750

Page 1 of 1 DEPT . 86 11/04/16
Superior Court of California
Countv nf I n ~ An""''"'s
NOV -4 2016
Sherri R. Carter, Executive Officer/Clerk
By N. OiGiambattista, Deputy




12 Petitioners and Plaintiffs, ) FOR WRIT OF MANDATE
vs. )
13 )
14 Time: 9:30 a.m.
Dept.: 86
Respondents and Defendantsj
16 ~~~~~~~~~~~~~~~~ )

I. The Petition for Writ of Mandate
In their verified petition for writ of mandate seeking injunctive and declaratory relief
under the Brown Act, Petitioners Los Angeles Times Communications LLC (Times) and non-
profit corporation Californians Aware complain that Respondent Southern California Regional
Transportation Authority (Metrolink), a "local agency" under Government Code Section 54951 1
whose Board is a legislative body under Section 54951 , violated the Brown Act(§§ 54960,
54960.1 and 54960.2) when it conducted an emergency teleconference Board meeting on


27 1 All references are to the Government Code unless otherwise specified.

September 2, 2015 giving only six hours' notice to the public. 2 Petitioners allege the Board

2 meeting occurred during an ongoing National Transportation Safety Board (NTSB) investigation

3 of a February 2015 fatal collision between a Metrolink train (equipped with a front-riding

4 Hyundai Rotem Co. (Hyundai) manufactured cab car), and a heavy duty pick-up truck and

5 trailer. Petitioners contend the meeting was improperly noticed (less than 24 hours' notice) and

6 improperly closed to the public under a provision permitting closed sessions for matters posing a

7 threat to the security of essential public services and facilities. Although Metrolink maintains it

8 took no action in the closed meeting, Petitioners cite Metrolink's announced decision, the next

9 day, to replace potentially defective Hyundai cab cars3 with Burlington Northern cabs at a cost of

10 approximately $23.9 million as contrary evidence.

11 Petitioners therefore seek (1) a declaration from the Court that Metrolink violated the

12 Brown Act by (a) providing less than 24 hours' notice; (b) closing the meeting pursuant to§

13 54957; and (c) using teleconferencing without complying with Section 54953. Petitioners

14 request a peremptory writ of mandate ordering Metrolink to (a) nullify any actions taken during

15 the September 2, 2015 meeting; (b) release to the public any documentation relating to the

16 meeting; (c) record all prospective closed sessions pursuant to Section 54960; (d) refrain from

17 holding further emergency meetings with less than 24 hours' notice; (e) refrain from further

18 closed sessions under Section 54957 to discuss design defects in cab cars or other Metrolink

19 equipment; (f) prospectively use teleconference only upon compliance with Section 54953; and

20 (g) report the vote or abstention by each Board member at the September 2, 2015 meeting.

21 Petitioners also pray for attorney's fees pursuant to Section 54960.5 and an award of costs.



2 On the identical grounds, Petitioner also filed a July 5, 2016 Notice of Motion & Motion for Writ of Mandate,
25 Injunctive and Declaratory Relief (erroneously captioned as a motion by the San Diego Union Tribune LLC). The
Court's ruling on the Petition renders that motion moot.
26 3 According to a Times article attached as Exhibit A to the Petition, a "cab car" is a passenger car that has a control

cab and operates at the front of a train being pushed from behind by locomotives; "[t]he use of such 'cab cars' is
27 common practice among the nation's commuter railroads when trains reverse direction at the end of a line."

1 II. Petitioner' s Contentions.

2 Petitioners contend the September 2, 2015 meeting was improperly noticed because the

3 Brown Act, Section 54954.2, requires 72 hours ' notice for a regular meeting and an emergency

4 special meeting requires the issuance of an agenda 24 hours in advance. They assert there was

5 no "emergency" because Metrolink knew, as early as Friday, August 28, 2015, about the

6 problem with the cab cars that was the catalyst for the Wednesday, September 2, 2015 meeting.

7 Petitioners also argue that, as a matter of law, a potential defect in a cab is not an "emergency

8 situation" under Section 54956.5. From Petitioners' point of view, the basis for Metrolink's

9 decision to close the meeting (the Section 54947(a) exemption for "matters posing a threat to the

1O security of public buildings, a threat to the security of essential public services, including water,

11 drinking water, wastewater treatment, natural gas service, and electric service, or a threat to the

12 public' s right of access to public services or public facilities") does not apply here. Petitioners

13 underscore the importance of public scrutiny of Metro link, an agency that spent hundreds of

14 millions of dollars on Hyundai cab cars supposedly to improve the safety of trains carrying many

15 thousands of passengers each day. Petitioners also express concern Metrolink will use the

16 Section 54947(a) exemption to hide all discussions about defective equipment.

17 Petitioners also complain the Board ignored the Brown Act' s requirements for

18 teleconferenced meeting such its obligation to post notices and agendas that identify an

19 accessible location for a teleconference and refrain from taking action if less than a quorum of a

20 legislative body is present. They point out the California Constitution, Art. 1, Sec. 3, subd. (b)

21 mandates broad construction of the Brown Act in favor of transparency.

22 Petitioners assert that Section 54957(a) ("Nothing contained in this chapter "shall be

23 construed to prevent the legislative body of a local agency from holding closed sessions with ...

24 agency counsel .. . on matters posing a threat to the security of public buildings, a threat to the

25 security of essential public services, including water, drinking water, wastewater treatment,

26 natural gas service and electric service or a threat to the public's right of access to public services

27 or public facilities") does not authorize conducting a closed session to address design flaws in

cab cars. Petitioners argue that any exemption to the open meetings requirements must be

2 statutorily mandated rather than implied under the Government Code, citing an Attorney General

3 Opinion (88 Ops. Cal.Atty.Gen. 16 (2005)) and Section 54962 ("Except as expressly authorized

4 by this chapter ... no closed sessions may be held by any legislative body of any local age~cy.")

5 Referring to the single September 2, 2015 agenda item ("CONFERENCE WITH LEGAL

6 COUNSEL - Pursuant to Government Code Section 54957 - THREAT TO PUBLIC

7 SERVICES ORFACILITIES"), Petitioners argue that no one threatened Metrolink or its

8 facilities. From their point of view, Metro link is "shoehorning" its meeting into this exemption,

9 and they urge the Court to reject this practice as a slippery slope to closing other meetings having

1O little to do with the issues of "national security" discussed when the Brown Act was passed in

11 1953, noting that the Alameda County Board of Supervisors recommended the amendment out of

12 concern for "high security trials [and] bombings of public buildings." (p. 9.) They also point out

13 that further amendments to the Brown Act passed after the terrorist 9/11 attacks were based on

14 discussion about "a threat to the security of essential public services," focusing on terrorism. (p.

15 11)

16 Petitioners take issue with the Board's decision to conduct the meeting by teleconference,

17 arguing it thereby violated procedures under Section 54953(b )(3) requiring the posting of an

18 agenda at the teleconference locations and listing the locations on the agenda. According to

19 Petitioners, nothing in the Brown act permitted Metrolink to abandon the procedures in Section

20 54953(b)(1) (permitting local agencies to teleconference meetings "so long as the

21 teleconferenced meeting [complies] with all requirements of this chapter [and other applicable

22 laws]"); Section 54953(b)(3) (teleconferencing must be conducted "in a manner that protects the

23 statutory and constitutional rights of the parties or the public appearing before the legislative

24 body"); and Section 54956.5(d)(requirements of Section 54956 "shall be applicable to [an

25 emergency meeting] called pursuant to this section, with the exception of the 24 hour notice

26 requirement").


1 III. · Respondent's Contentions

2 In opposition, Respondent recounts the events leading up to the September 2, 2016

3 meeting, emphasizing that agency employees and attorneys worked diligently to identify an issue

4 they perceived might pose a safety risk for Metrolink riders and to call a special emergency

5 teleconference meeting of the Board to address the issue, giving notice to the public and to the

6 geographically dispersed Board members while preparing and posting an agenda. Respondent

7 recounts that the emergency meeting came to order at approximately 5:00 p.m. on September 2,

8 2015 and that, after hearing from Metrolink's general counsel in the open meeting regarding the

9 Board's authority to meet on an emergency basis and to meet in closed session to discuss a

1O potential threat to the security of public services, the Board unanimously voted to proceed in a

11 closed session. After approximately 20 minutes of closed session, in which the Board discussed

12 an investigator's report about a potential defect in the Hyundai cab cars, the Board re-opened the ,

13 meeting, announcing that it had taken no reportable action in the closed session. The meeting

14 was then adjourned.

15 Respondent argues the Brown Act grants agencies such as the Board the authority to

16 decide whether circumstances justify an emergency meeting and that the Board did not abuse its

17 discretion in calling the meeting. It argues Petitioner's characterization of the issue as a non-

18 emergency based on the fact that it took several days to convene the meeting is unreasonable. It

19 dismisses Petitioner's argument that a true emergency would have caused Metro link to shut

20 down its trains as similarly unreasonable, pointing out that the purpose of the emergency meeting

21 was let the Board to determine whether it faced an emergency requiring prompt action or

22 implementation of extreme measures. (ROB p. 6.) Respondent urges the court to judge the

23 Board's exercise of discretion based on what it knew on September 2, 2015 rather than on

24 information learned in hindsight.

25 Respondent explains the Board learned of a specific defect that, if known to and

26 exploited by malefactors, could have triggered widespread derailments presenting a systemic

27 threat to Metrolink's security. They urge the court to interpret Section 54957(a), which permits

agencies to meet in closed session to discuss "matters posing ... a threat to the security of

2 essential services" to embrace train service as an "essential public service" covered by the

3 statute. It argues the legislative history evidencing the legislators' concerns about terrorist

4 threats to infrastructure supports the Board's conduct on September 2, 2015. Respondent views

5 Section 94957 as a legislative determination to diminish of transparency as a necessary measure

6 for the higher purpose of ensuring public safety.

7 Metrolink also emphasizes its obligation to maintain confidentiality during the pendency
8 of the NTSB investigation into February 24, 2015 accident. It recounts that late on Friday,

9 August 28, 2015, an expert analyzing the Oxnard crash in connection with tort litigation

10 provided a preliminary analysis to Metrolink's counsel implicating a safety issue with the

11 Hyundai cab cars. The following Monday, counsel informed the Metrolink Executive Team but

12 had difficulty reaching key personnel such that "it took a couple of days for Metrolink's

13 Executive Team to process and understand the detailed and complex technical information the

14 investigator had presented." (ROB p. 3, Leahy Deel. ii 8.) Mindful of an earlier Glendale crash

15 and derailment, the Executive Team became concerned that the investigator's analysis included

16 information that, "if accurate and known by the wrong people, could be exploited to cause mass

17 harm to both Metrolink'[s riders and the public at large." (Leahy Deel. ii 9).
18 Finally, on the issue of notice, Respondent contends strict compliance with Section 54953

19 was not required for an emergency meeting and that it took reasonable steps to comply with that

20 section nevertheless. It further argues that Section 54956.5(b)(2), which governs the notice

21 required for special emergency meetings, is the applicable provision, and that it complied with

22 that provision, providing six hour notice (more than the one hour provided in that section.)






IV. Analysis

A. The Standard of Review Is Abuse of Discretion where Facts Are In Dispute and
De Novo for Questions of Law; Questions of Notice Are Reviewed for Substantial
4 Compliance

5 The drafters of the Brown Act specifically provided for mandamus review of actions by

6 local agencies who violate the Act, specifically Section 54953 (mandating open meetings and

7 authorizing teleconference meetings), Section 54954.2 (mandating the posting of an agenda 72

8 hours before regular meeting), Section 54656 (authorizing special meetings and requiring notice

9 to local newspapers) and Section 54956.5 (authorizing emergency meetings with closed sessions

10 and requiring notice to local newspapers). Mandamus is addressed in Section 54960.1 which

11 provides, "any interested person may commence an action by mandkus or injunction for the

12 purpose of obtaining a judicial determination that an action taken b~ a legislative body of a local
13 agency [in violation of these sections] is null and void." That proviJion also directs, in Section

14 54960. I, subd. (d) (I), the Court "shall not" determine the agency af on is in violation of these

15 provisions or is "null and void" if "the agency's "action was in substantial compliance with these

16 provisions. (§§54953, 54954.2, 54954.3, 54956 and 54956.5). It further directs, in subd. (d)(5),

17 the Court may not find a violation or declare an agency's action "null and void" where the

18 alleged defect involves a failure to give adequate notice and the person asserting the defect had

19 actual notice in compliance with the statute.

20 Petitioners urge this Court to review the actions of the Board "de novo." (PRB p. 2.)

21 For the proposition that the standard of review is de novo, Petitioners cite McKee v. Orange

22 Unified School Dist. (2003) 110 Cal.App.4th 1310, 1316 (holding that question whether

23 petitioner has standing under the Brown Act is reviewed de novo) and Furtado v. Sierra

24 Community College (1998) 68 Cal.App.4th 876 (holding that where facts are undisputed and the

25 issue is whether the actions taken violate the Brown Act, the review is de novo, citing Bullock v.

26 City and County ofSan Francisco (1990) 221 Cal.App.3d 1072, 1094 which confirms that where


the issue is solely a question of law, the review is de novo rather than abuse of discretion).

2 Respondent argues that the standard of review is abuse of discretion.

3 Generally speaking, a court reviewing administrative or quasi-legislative action under

4 Code of Civil Procedure Section 1085 is limited to the question whether the agency's action was

5 "arbitrary, capricious or [without] reasonable or rational basis." American Coatings Ass 'n Inc. v.

6 South Coast Air Quality Dist. (2012) 54 Cal.4th 446, 460. Although the parties seem to agree the

7 Board is a legislative body, the alleged conduct underlying the Petition is not the passage of any

8 laws, rules, or regulations, it is the administrative act of conducting an emergency meeting in a

9 closed session. Where administrative conduct is at issue, the Court generally reviews "the

10 challenged administrative action to determine whether it was arbitrary, capricious, or entirely

11 lacking in evidentiary support, or whether the agency failed to follow the procedure and give the

12 notices the law requires." American Indian Model Schs. v. Oakland Unified Sch. Dist. (2014)

13 227 Cal.App.4th 258, 286, quoting Sequoia Union High Sch. Dist. V Aurora Charter High Sch.

14 (2003) 112 Cal.App.4th 185, 195. See also County of Los Angeles v. City ofLos Angeles (2013)

15 214 Cal.App.3th 643 ("In determining whether a public agency has abused its discretion, the

16 court may not substitute its judgment for that of the agency, and ifreasonable minds may

17 disagree as to the wisdom of the agency's action, its determination must be upheld," citing

18 Manjares v. Newton (1966) 64 Cal.2d 365, 370). However, as noted in County of Los Angeles,

19 supra, "mandate will not lie to control a public agency's discretion, that is to say, force the

20 exercise of discretion in a particular manner. However, it will lie to correct abuses of

21 discretion." Courts reviewing administrative conduct therefore apply an abuse of discretion

22 standard unless the facts are undisputed. Where the facts are undisputed presenting a pure issue

23 of law, the standard of review is de novo. See, e.g., City ofAlhambra v. County of Los Angeles

24 (2012) 55 Cal. 4th 707, 718.

25 In this case, the parties dispute factual issues such as what was known to the Board when

26 it decided to close the September 2, 2015 meeting and whether the NTSB had mandated

27 confidentiality of all discussion regarding the Oxnard accident. Petitioners also present legal

issues such as whether facts known to Respondent constituted an emergency under Section

2 54947 of the Brown Act and challenge the adequacy of notice. The Court applies an abuse of

3 discretion standard where the facts are disputed, reviews alleged defects in notice for substantial

4 compliance, and reviews issues of law de novo.


6 B. The Brown Act

7 The Brown Act, Govt. Code§§ 54950 et seq., was passed to ensure that deliberations and

8 actions taken by local government agencies like Metrolink and its Board are conducted openly.

9 As the Legislature declared in enacting the Brown Act, "public agencies in this State exist to aid

10 in the conduct of the people's business;" "It is the intent of the law that their actions be taken

11 openly and that their deliberations be conducted openly." The Act defines "actions taken" as "a

12 collective decision made by a majority of the members of a legislative body, a collective

13 commitment or promise by a majority of the members of a legislative body to make a positive or

14 a negative decision, or an actual vote by a majority of the members ... upon a motion, proposal,

15 resolution, order or ordinance."

16 The Act applies to "legislative bodies" which is defined to include local agencies such as

17 Metrolink and its governing board. (Section 54952.) Subject to certain exceptions, the Act

18 requires the meetings of agencies such as Metrolink, whether in person or via teleconference, to

19 be "open and public" and mandates that "all persons shall be permitted to attend" such meetings.

20 (Section 54953.) At least 72 hours in advance of a "regular meeting," an agency must post, in

21 an area accessible to the public, an agenda "containing a brief general description of each item of

22 business to be transacted or discussed at the meeting, including items to be discussed in closed

23 session." (Section 54954.2.) The agenda must provide an opportunity for the public to address

24 any items under consideration. (Section 54954.3.) If an agency elects to call a "special

25 meeting," it must give 24 hours' notice to the public by posting a notice in an area accessible to

26 the public and delivering written notice "to each local newspaper of general circulation and radio


1 or television station requesting notice in writing" ("local media"). (Section 54956.) Agencies

2 must give notice of closed sessions and the Act identifies specific wording for certain notices

3 that "shall not be in violation" of the notice provisions for general and special meetings.

4 (Section 54954.5.)

5 Section 54960.1 (a) of the Act permits "any interested person" to "commence an action by

6 mandamus ... for the purpose of obtaining a judicial determination that an action taken by a

7 legislative body of a local agency in violation of [specified provisions of the Act] is null and void

8 .... " (Section 54960. l(a).) Section 54960, in relevant part, allows "any interested person" to

9 "commence an action by mandamus, injunction or declaratory relief for the purpose of stopping

10 or preventing violations or threatened violations of this chapter by members of the legislative

11 body of a local agency or to determine the applicability of this chapter to actions or threatened

12 future action of the legislative body . . .. "

C. There Are No Grounds for Nullifying an "Action Taken" under Section
54960.l(a) because the Board Took No Action in the Challenged Meeting.
In Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, the Court of Appeal in a
Brown Act case affirmed a demurrer sustained by the trial court without leave to amend.
Because the May 29, 2997 City Council meeting at issue in Boyle was merely a consultation that
resulted in no action taken, the appellate court concluded there was no ground for relief under
Section 54960.1 (which permits an interested person to seek mandamus for purposes of obtaining
a determination "that an action taken by the legislative body of a local agency" in violation of
the Brown Act is null and void).
Petitioners specifically invoke Section 54960.1 as a statutory basis for their Petition.
(Pet. P. 2.) The Board reported no action was taken in the September 2, 2015 closed session or
otherwise the emergency meeting. The Court has no admissible evidence to the contrary. 4 This

· 26
4Petitioners ask the Court to infer, from evidence of action taken by the Board the next day, the
27 Board must have taken action on September 2, 2014. The Court declines to find, based solely on
Court therefore determines, as a matter of law, there is no basis for nullifying any action taken

2 under Section 54960.1.

D. Section 54960 Does Not Apply because the Board Took No Action on September
2, 2015 and the Court Has No Evidence of any Impending Action or Threatened Future
5 Action in Violation of the Act.

6 As an alternative statutory basis for their requested relief, Petitioners cite Section 54960.

7 As noted above, that provision can be invoked to stop actual violations or threatened violations

8 of the Brown Act. Notwithstanding Petitioners' concerns the September 2, 2015 meeting

9 portends additional closed meetings called on shortened notice to address non-emergency

10 matters, there is no evidence in the record the September 2, 2015 was not a unique situation. To

11 the contrary, the undisputed evidence is that an expert identified a particular defect in the

12 Hyundai cab cars causing staff to become concerned that someone who knew about the defect

13 could use the knowledge to place Metrolink passengers in jeopardy of one or more derailments.

14 The record gives no indication that this situation was not a one-time incident involving a unique

15 set of circumstances. The record does not identify a second or third similar incident. Without

16 evidence of ongoing violations, this Court has no reason to issue an order to stop present

17 violations or prevent future violations.

18 The provision in Section 54960 permitting "any interested person" to commence an

19 action by mandamus "to determine the applicability of this chapter to actions or threatened

20 actions" likewise provides no basis for relief because the Board took no "action" on September

21 2, 2015 and there is no evidence of any threatened actions in violation of the Act.





the timing of the Board's action the next day, a reasonable inference that any action was taken on
27 September 2, 2015 .

E. The Board Did Not Abuse Its Discretion or Violate the Brown Act by Closing the
Emergency Meeting
2 Although Section 54954.2(a)(l) requires the posting of an agenda for a special meeting at
3 least 24 hours in advance, Section 54954.2(b) states that, notwithstanding that provision, "the
4 legislative body may "take action" on items not on a posted agenda if, "prior to discussing any
5 item ... the legislative body shall publicly identify the item" and determine by majority vote
6 "that an emergency situation exists" as defined in Section 54956.5. 5 In an emergency situation,
7 the agency is not required to give 24-hours' notice under Section 54956.5(b)(l), and is permitted
8 to give notice as late as one hour prior to the emergency meeting under Section 54956.5(b)(2).
9 Section 54957 underscores that notwithstanding other provisions in the Brown Act,
10 agencies may meet with counsel in closed session "on matters posing a threat to the security of
11 public buildings, the security of essential public services, including water, drinking water,
12 wastewater treatment, natural gas service, and electric service, or a threat to the public's right of
13 access to public services or public facilities." This language is broad enough to encompass
14 potential security threats to a public transportation service such as Metro link. The Governor's
15 comments on the legislation focused on the potential for threats to public security rather than the
16 types of entities that may experience such threats. Upon signing the 2002 legislation, Governor
17 Brown stated he was "concerned that state agencies cannot meet in closed session to address
18 security issues relating to the state's critical infrastructure" and was working with the Legislature
19 to "permit all public entities to meet in closed session when discussing certain security issues
20 that, if revealed, would compromise public safety and the state's critical infrastructure."
21 Interpreting Section 54957 as a matter of law, the Court finds the language is broad enough to
22 encompass Metrolink either as a "public service" to which the public has a right of access, or an


5 Section 54956 allows a legislative body of a local agency to call a "special meeting" at any time, giving notice "at
26 least 24 hours" beforehand. Section 54954.5 specifies how closed meetings may be described (stating that no
legislative body will be in violation of Sections 54954.2 or 54956 "if the closed session items were described in
27 substantial compliance with this section.

"essential public service" akin to utilities, because a breach in security affecting the train service

2 has the same potential to cause a large segment of the public to suffer harm.

3 Petitioners' argument the language "matters posing a threat" should be interpreted

4 narrowly and interpreted to prohibit agencies from invoking emergency procedures unless and

5 until there is an articulated and immediate threat to public safety is not persuasive. The

6 underlying facts on this issue are not in dispute. There is no dispute the Board convened without

7 any indication of a concrete or imminent threat. There was no indication, for example, that
8 malfeasants had already learned about the defect and threatened to act or engaged in preparations

9 to take action. Interpreting "matters posing a threat" to mean an actual articulated threat is not

10 reasonable because it ignores the words "matters posing." The word "matters" is generalized

11 and broad encompassing any facts or circumstances. The Court interprets the word "posing" to

12 mean presenting or constituting a threat encompassing potential as well as actual threats. The

13 Court also reads "matters posing" as modifiers for the two succeeding nouns, allowing an agency

14 to invoke emergency procedures for "matters posing a threat to the security of public buildings,"

15 [matters posing a] threat to potential public services ... or [matters posing a] threat the public's

16 right of access to public services or public facilities."

17 The Court also reads the disclaimer articulated in Section 54957 (that nothing in the

18 Chapter should be interpreted to prevent closed sessions to address threats to public safety) in

19 combination with Section 54956.5, addressing "emergency situations." That section, which

20 requires under Section 54956.5(c) that two thirds of the Board members agree that closure of an

21 emergency meeting is justified underscores the Legislature's determination that the agency

22 reserves discretion to decide whether an emergency situation justifying closure is presented. It is

23 therefore proper to review the Board's determination for abuse of discretion rather than impose a

24 judicial interpretation of the statutory language in a manner that compromises the Board's

25 discretion.

26 The Court' s interpretation of Section 54957 is consistent with the Legislative History. In

27 an August 11 , 1971 letter, State Senator John W. Holmdahl, in describing the need for the

1 legislation, noted that, under existing law, "not only can the press be present and publicize plans

2 [to address threats to security of public buildings and services] , but the very participants who

3 plan to be involved in these activities can also be present and learn about the plans in advance ."

4 (Raymond Deel. Exh. 9.) This is the same concern underlying the Board's determination to

5 close discussions of the potential threat to members of the public.

6 The parties dispute the facts giving rise to closure of the meeting, with Petitioners

7 contending there was information about a relatively trivial defect and Metrolink contending it

8 learned about a defect that threatened widespread potential harm. Applying an abuse of

9 discretion standard, the Court finds the Board's determination that the expert's identification of a

1O potential defect in the cab cars justified an emergency meeting to address a security issue under

11 that provision was not arbitrary. There is substantial evidence the expert' s report posed more

12 than a defect in equipment that could cause failures in service. It the context of post-9111

13 terrorist threats, it learned about a defect that, if known to malfeasants, could be exploited to

14 cause one or more derailments, causing massive injuries. The Court declines to substitute its

15 judgment for the judgment of the agency and finds no abuse of discretion in treating the

16 information as presenting an emergency justifying closure of discussions with respect to the

17 information.

18 The fact that the alleged defect was first disclosed to counsel on August 28, 2015, several

19 days before the emergency meeting was called on September 2, 2015, does not undermine the

20 reasonableness of the Board's perception of an emergency or its determination to call an

21 emergency meeting. As explained in the Declaration of Arthur Leahy, the information surfaced

22 at a time when Metrolink's Chief Operating Officer was out of town and difficult to reach. The

23 expert investigator who identified the concerns was similarly traveling and difficult to reach.

24 Given the technical nature of the information, it is not surprising that it took a couple of days for

25 Mr. Leahy and others to connect the dots between the identified defect and the potential for the

26 "wrong people' to "cause mass harm" if they learned about the defect. (Leahy Deel. if 9.) The

27 Court is therefore not persuaded that the lapse of time evidences an abuse of discretion or

undermines the reasonable perception of a potential emergency that should be presented to the

2 Board.

3 The Board's perception the NTSB's investigation of the Oxnard crash prohibited

4 disclosure of "any information relating to the Oxnard crash, except as expressly authorized by

5 the NTSB prior to release" provides an additional grounds for the reasonableness of the Board's

6 determination to close the meeting. (Forgione Deel.~ 6.) Having been so instructed by the

7 NTSB, the Board did not abuse its discretion in closing the meeting to discuss information

8 relating to the cause of that crash.6

F. Metrolink Substantially Complied with the Notice Requirements and Petitioner
Has Failed to Demonstrate Prejudice
As noted above, Metrolink provided one hour notice for its meeting. The Court finds
Metrolink substantially complied with notice procedures under the Public Records Act because

Section 54956.5 allows one hour notice for emergency meetings. The Court also notes

15 Petitioners have failed to demonstrate prejudice with respect to the late notice. Galbiso v. Orosi

16 Public Utility Dist. (2010) 182 Cal.App.4th 652, 670-71.

G. Conducting the Meeting by Teleconference Was Not a Violation of the Public
19 Records Act
20 There is no dispute the September 2, 2015 meeting was conducted by teleconference

21 under Section 54953 and no dispute Metrolink did not strictly comply with the 72 hour agenda


6 The cases cited by Petitioners (PRB p. 3)( International Federation of Professional & Technical
24 Engineers v. Superior Court (2007) 42 Cal.4th 319, 336-37, Commission on Peace Officer Standards & Training v.
Superior Court (2007) 42 Cal.4 1h 278, 301, and Long Beach Police Officers Assoc. v. City ofLong Beach (2014) 59
25 Cal.4th 59, 75) are inapposite because they address the balancing test required under the exemption to the Public
Records Act where "the public interest served by not disclosing the record clearly outweighs the public interest
26 served by disclosure of the record." (Govt. Code Section 6255.) The analysis in these cases does not inform the
Court's decision here.

requirement in Section 54953(b)(3). The Court reviews the propriety of the Board' s

2 teleconferencing de novo.

3 Section 54953 mandates, in subd. (a), that all meetings of a legislative body of a local

4 agency "shall be open." It goes on to establish procedures if the agency elects to conduct a

5 meeting by teleconference where "the members ... are in different locations, connected by

6 electronic means .... " (Section 54953(c).) Section 54953(b)(l) states, "the legislative body of

7 a local agency may use teleconferencing for the benefit of the public and the legislative body of a

8 local agency in connection with any meeting or proceeding authorized by law;" Section

9 54953(b)(2) permits teleconferencing "for all purposes in connection with any meeting within

10 the subject matter jurisdiction of the legislative body." If a meeting is conducted by

11 teleconference, the agency "shall post agendas at all teleconference locations and conduct

12 teleconference meetings in a manner that protects the statutory and constitutional rights of the

13 parties or the public appearing before the legislative body of a local agency" specifying that each

14 "location shall be identified in the notice and agenda of the meeting .. . and accessible to the

15 public." (Section 54953(b)(3).)

16 Section 54956.5, addressing emergency meetings, does not incorporate the

17 teleconferencing provisions of Section 54953. Although it could have been amended, upon

18 passage to incorporate Section 54353, it was not. By its terms, Section 54956.5 only references

19 compliance with Section 54956. It exempts, in Section 54956.5(b)(1 ), emergency meetings from

20 the 24-hour notice provision under 54956 and states (in Section 54956.5(d)), "all special meeting

21 requirements as prescribed in Section 54956 shall be applicable to a meeting called pursuant to

22 this section, with the exception of the 24-hour notice requirement." The Court therefore

23 interprets Section 54953 as not applicable to emergency meetings.

24 Moreover, Section 54954(b)(l) (addressing agendas) dispenses altogether with

25 requirements for posting agendas " [upon] a determination by a majoiity vote ... that an

26 emergency situation exists." As noted above, this Court finds the Board did not abuse its


discretion in determining that an emergency situation existed. That determination relieved the

2 Board of any obligation to post a teleconference agenda under Section 54953(b )(3).

3 The Court's interpretation of Section 54953 and 54054.2 is consistent with the provision

4 in 54953(b), allowing teleconferencing "for all purposes in connection with any meeting" and

5 "for the benefit of the public and the legislative body." Because Board members were

6 geographically dispersed and there was a need to act quickly, the Board plainly benefitted by

7 conducting business via teleconference. Because the "emergency situation" arose out of concern

8 for public safety, teleconferencing also served to benefit the public and, with a properly closed

9 session, there was no detriment to anyone' s right to appear or be heard. The Court therefore

10 finds that the Board' s teleconferencing procedures were not in violation of the Public Records

11 Act.

V. Conclusion
The Court denies the petition for writ of mandate. The Court has separately ruled on
objections to evidence. The Court grants Petitioner's Request for Judicial Notice pertaining to
rec.ords attached to the Declaration of Jan Raymond.

Dated: November 4, 2016

AmyD. Hogue
20 Judge of the Superior Court