Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200900043404
RAYE, P. J.The respondent superior court granted a motion by real party in interest The Lily Company (Lily) to compel an employee of petitioner Los Rios Community College District (District) to answer two deposition questions. Because the compelled answers to the questions would violate a privilege protecting closed session meetings between a public entity and its real property negotiator, we shall issue a writ of mandate compelling the superior court to deny the motion.
FACTS
The Community Redevelopment Agency of the City of Rancho Cordova (Redevelopment Agency) filed suit against Lily to exercise eminent domain over real property owned by Lily. Lily cross-complained against District and Redevelopment Agency, alleging, as relevant, that in December 2007 Lily and District contracted for Lily to sell real property to District for about $8.5 million, but District wrongfully terminated the contract in July 2008 in order to obtain the same property at a lower price via eminent domain proceedings initiated by Redevelopment Agency.
On April 27, 2010, Lily deposed William Silvia, District’s director of general services. During his deposition, Silvia testified: The District was interested in buying Lily’s property in Rancho Cordova on which to build an “educational center, ” a small facility designed to provide classroom teaching. In the course of seeking suitable real property for the educational center, District looked at many properties, including real property owned by a man named Fite. At one point, District entered into a letter of intent with Fite. Silvia was the District’s representative in negotiating with Fite.
Lily’s attorney asked Silvia, “Why didn’t the negotiations with Mr. Fite progress beyond the letter of intent stage?”
After an off-the-record discussion between Silvia and District’s attorney, Silvia answered, “The board did not approve it.” District’s attorney then added: “Let me stop you there. The board acted in closed session so the witness will not answer any questions [about] what happened in the closed session or what was discussed in the closed session. The board did not approve. There is a privilege as to the actual proceedings in closed session.”
Silvia continued his testimony: During the closed session, District was asking the community college board to approve a proposed purchase agreement for the Fite property. District did not need the board’s approval to negotiate a letter of intent or a purchase agreement with Fite, but did need the board’s approval to enter into a purchase agreement with Fite.
Lily’s attorney then asked, “Well, did the district or did you present the board with a final agreement that Mr. Fite had agreed to and asked the board to allow --.” District’s attorney interrupted, imposing an objection to the question based on “the privilege of not disclosing the contents of a conference with a real estate negotiator.”
After the deposition, Lily moved to compel Silvia to answer the above two questions, identified as deposition questions 1 and 2. Lily argued the “negotiator exception” cited by District is inapplicable because there is no indication District appointed Silvia as its real property negotiator, and because any such exception is limited to questions expressly related to the public entity’s instructions to its negotiator regarding the price and terms of payment of real property.
In addition, Lily moved to compel answers to other discovery questions which are not relevant to this opinion.
District opposed the motion, arguing deposition questions 1 and 2 intrude into the real property negotiator exception found in the Brown Act, recognized by Government Code section 54956.8. District argued also that the real property negotiator exception applies when a public entity publicly identifies its negotiator, and District properly identified Silvia as its real property negotiator with respect to the Fite property.
Unless otherwise indicated, undesignated statutory references are to the Government Code.
In support of its opposition, District submitted Silvia’s declaration that he participated in two closed sessions of the community college board regarding acquisition of real property for a planned educational center in Rancho Cordova, one on September 19, 2007, and the other on December 12, 2007. Silvia attached to his declaration the board’s meeting agendas for both dates. The agenda for the September 19, 2007, board meeting indicated the board would hold a closed session with three real property negotiators identified by name, including Silvia, for the purpose of discussing negotiations regarding price and terms of payment as to both the Fite and Lily properties. As to the Fite property, the agenda identified the persons with whom District negotiated, D. Bruce and Darlyne Fite, of DB Fite Properties, and identified their property by APN (assessor’s parcel number). The board’s agenda for its December 12, 2007, meeting indicated the board would hold a closed session with Silvia and three other persons identified by name as real property negotiators for the purpose of discussing negotiations regarding price and terms of payment as to the Lily property, identified by APN, and indicated the person with whom District negotiated, “Sam Fong/The Lily Company.”
Silvia also attached to his declaration the board’s meeting minutes for its meetings on September 19, 2007, and December 12, 2007. The minutes reflect that the board indicated during its open session meetings that it entered closed sessions to discuss the real property negotiations, again specifically identifying the Fite and Lily properties in the same language as used in the board’s public meeting agendas.
After a hearing on Lily’s motion, the respondent superior court granted Lily’s motion to compel Silvia to answer deposition questions 1 and 2, by order entered December 14, 2010. The order states: “There is no evidence before the court that a ‘negotiator’ was appointed prior to the closed session, a prerequisite of ‘a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property.’ Gov’t Code § 54956.8. Moreover, the court agrees with Lily that the closed session ‘privilege’ is limited in any event to the ‘price and terms of payment.’ Id. It would not extend to discussions and information regarding alternative sites not to be purchased, sold, exchanged or leased.”
District filed a petition for writ of mandate in this court, seeking an order directing the respondent court to vacate in part its December 14, 2010, order, and to enter a new order denying the motion to compel Silvia to answer deposition questions 1 and 2.
On February 17, 2011, we stayed the December 14, 2010, order to the extent it compels Silvia to respond to deposition questions 1 and 2. We also notified the parties we were considering issuing a peremptory writ in the first instance, and invited opposition to the petition, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171. Our order further invited the respondent court to reconsider its December 14, 2010, order, pursuant to Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250. The respondent court subsequently informed this court of its intent not to change its order, necessitating this opinion.
Having received and considered Lily’s opposition, we shall issue a peremptory writ.
DISCUSSION
District contends the respondent superior court abused its discretion in compelling District’s real property negotiator to disclose information acquired at a confidential closed session meeting. We agree.
Although we will not ordinarily review an order compelling discovery by a pretrial writ proceeding, we will do so when necessary to protect a privilege. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5.)
In adopting the Ralph M. Brown Act, section 54950 et seq. (Brown Act), the Legislature made clear its intent that the actions and deliberations of public commissions, boards, councils, and other public agencies be taken and conducted openly. (§ 54950.) Accordingly, as a general rule, all meetings of the legislative body of a local agency are required to be open and public. (§ 54953, subd. (a).)
However, even the Brown Act has exceptions, including the real property negotiator exception authorized by section 54956.8, which provides in pertinent part:
“Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.
“However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.”
At least 72 hours prior to a closed session with a real property negotiator, the public agency must post its agenda identifying its intent to hold the closed session, and identifying the property by street address or APN, the agency’s real property negotiator who will attend the closed session, the negotiating parties, and whether instruction to the negotiator will concern price, terms of payment, or both. (§§ 54954.2, subd. (a)(1), 54954.5, subd. (b).)
“The need for executive sessions for specific purchase, sale and lease discussions is obvious. No purchase would ever be made for less than the maximum amount the public body would pay if the public (including the seller) could attend the session at which that maximum was set, and the same is true for minimum sale prices and lease terms and the like.” (Schwing, Open Meeting Laws (2d ed. 2000) Executive Sessions, § 7.76, p. 447.)
We recognize that exceptions under the Brown Act must be narrowly construed. (See, e.g., Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 682.) However, the sole published opinion to consider the availability of civil discovery to unearth discussions during real property negotiator closed sessions construes the exception broadly enough to protect the confidentiality of the closed session proceedings. (See Kleitman v. Superior Court (1999) 74 Cal.App.4th 324 (Kleitman).)
In Kleitman, a city council noticed a closed session with its real property negotiator to discuss the terms of a lease with a chamber of commerce. (Kleitman, supra, 74 Cal.App.4th at p. 327.) At the time, the chamber leased property in a city-owned park. The notice for the closed session did not disclose that the chamber was considering leasing a different location within that park. A city resident sued for violations of the Brown Act, including the failure to give specific notice that the city council would discuss the alternate lease site. The plaintiff then served the city council members with interrogatories inquiring about the real property negotiator closed session. (Id. at pp. 327-328.) The Court of Appeal held the trial court abused its discretion in ordering the city council members to respond to interrogatories inquiring as to the names of persons who attended the closed session, whether there was discussion during the closed session of the then-existing lease between the chamber and the city, whether there was discussion of leasing to the chamber a different portion of the park, the description of each document presented to city council members regarding the chamber’s leasing a different portion of the park, and everything said during the closed session regarding the chamber’s leasing a different portion of the park. (Id. at pp. 328-330, 335.)
The Court of Appeal in Kleitman framed its holding narrowly: “[T]he trial court cannot compel disclosure of the personal recollections of city council members with respect to a closed session, without improperly reading into the [Brown] Act a discovery procedure which would violate the confidentiality of closed sessions which is inherent in the Act.” (Kleitman, supra, 74 Cal.App.4th at p. 327.) But the court’s analysis more broadly identifies an evidentiary privilege.
Kleitman reasoned that although the Brown Act does not expressly provide that closed sessions are confidential, that confidentiality is implied by various provisions of the Act which narrowly circumscribe the methods for disclosure of proceedings that take place during a closed session. (Kleitman, supra, 74 Cal.App.4th at pp. 332-333.) The court also relied on opinions of the Attorney General that statutes authorizing closed sessions would be rendered meaningless if an individual member could publicly disclose information received in confidence during a closed session, saying: “We agree with the Attorney General. Disclosure of closed session proceedings by the members of a legislative body necessarily destroys the closed session confidentiality which is inherent in the Brown Act.” (Id. at p. 334.) Finally, the court indicated: “While Evidence Code section 1040, subdivision (b)(2), has not been interpreted in the context of the Brown Act, we find that subdivision (b)(1), which provides that a public entity is privileged to refuse to disclose official information when the privilege is properly claimed and disclosure is forbidden by a state statute, necessarily includes the Brown Act’s prohibition of disclosure of closed session proceedings except as provided by the Act.” (Kleitman, at p. 335, fn. 9.)
Evidence Code section 1040, subdivision (b)(2) provides as follows: “(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and: [¶]... [¶] (2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”
Although Kleitman arose in the context of a civil action alleging a violation of the Brown Act, the evidentiary privilege is applicable to any civil action. Kleitman has been cited for its recognition of a privilege precluding discovery of discussions during a closed session held pursuant to the Brown Act. (Los Angeles Unified School Dist. v. Trustees of Southern California IBEW-NECA Pension Plan (2010) 187 Cal.App.4th 621, 629-630; 2 Witkin, Cal. Evidence (4th ed. 2000) Witnesses, § 247, p. 516.) Indeed, Los Angeles Unified School District cites Kleitman’s analysis with approval that the Legislature intended to create an absolute privilege (by operation of Evidence Code section 1040, subdivision (b)(1)) to bar disclosure of closed session discussions in the context of civil litigation. (Los Angeles Unified School Dist., supra, 187 Cal.App.4th at pp. 629-630.)
It is immaterial that, in this case, Lily sought to compel the real property negotiator rather than the board members to disclose closed session discussions. A contrary holding would allow a party to defeat the privilege simply by deposing any person who properly attended the closed session rather than the legislative members of the local agency.
The decision in Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904 is not to the contrary. In Shapiro, the court affirmed a judgment enjoining a city to comply with the Brown Act in future real property negotiator closed session meetings regarding acquisition of land for a ballpark, based on the city’s past violations of the Brown Act. (Id. at pp. 906-907.) Among other things, the injunction directed the city council to limit its discussions at such closed sessions to giving instructions to its negotiators regarding price and terms of payment for the purchase, sale, exchange, or lease of specific real property. (Id. at p. 910.) In the course of affirming that portion of the injunction, the appellate court noted that the city council’s discussions had impermissibly extended to topics outside the narrow scope of the real property negotiator exception, to include discussion of “topics such as briefing on land acquisition matters, design work of architects, engineers, and infrastructure and parking developments[, and] such topics as capping interim expenses, environmental impact report considerations, issues of alternative sites, traffic, naming rights, expert consultants and staff [and even] the impact of the ballpark project on the homeless....” (Id. at pp. 923-924.) However, Shapiro does not address the scope of the privilege as to confidential discussions during a real property negotiator closed session, and the opinion in no way limits the holding of Kleitman.
Under Kleitman, District properly objected to deposition questions 1 and 2. Question 1 asked Silvia, District’s real property negotiator, why negotiations with Fite did not proceed beyond the letter of intent stage. Silvia answered that the board did not approve the agreement with Fite, and District’s attorney indicated Silva would not answer questions as to why the board did not approve the agreement. After Silvia testified that the board was asked during its closed session to approve a proposed real estate purchase agreement with Fite, question 2 asked Silvia if he or District presented the board with a final agreement to which Fite had agreed. Both questions inquired into confidential discussions held during the board’s real property negotiator closed sessions, and thus were protected by the privilege recognized in Kleitman.
We would find that deposition questions 1 and 2 intrude into the privilege even were we to read the privilege narrowly to apply solely to those closed session discussions that address the price and terms of payment for the purchase, sale, exchange, or lease of property. Given that Silvia responded to question 1 by indicating the board did not approve the Fite agreement, it is probable that any further answer to the question necessarily would have invaded the board’s confidential discussions regarding the price of the Fite agreement. And, assuming Lily has obtained or can obtain through discovery a copy of a final agreement to which Fite had agreed, any answer to question 2 would give insight into a price for the Fite property that was rejected by the board.
The respondent court’s stated reasons for compelling further answers to the deposition questions are unsound. The respondent court indicated there is no evidence Silvia was “appointed” prior to the closed session. But the statutory scheme requires only that the real property negotiator be publicly identified prior to the closed session, which he was. The respondent court also indicated that the privilege would not extend to discussions “regarding alternative sites not to be purchased, sold, exchanged or leased, ” presumably the Fite property. But the board was asked to consider an agreement to purchase the Fite property, and accordingly the board’s closed session discussions with its negotiator regarding the Fite property are as privileged as are its discussions regarding the Lily property. In any event, discussions regarding the prices of alternative properties are relevant to a local agency’s instructions regarding the price of a property noticed for discussion in a closed session, and thus should also be privileged.
DISPOSITION
Let a peremptory writ of mandate issue directing the respondent superior court to vacate that portion of its December 14, 2010, order which compels further answers to deposition questions 1 and 2, and to enter a new order denying the motion to compel further answers to those questions. Upon finality of this opinion, the stay issued by this court on February 17, 2011, shall be vacated. Costs are awarded to petitioner. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
We concur: BLEASE, J. MURRAY, J.