1 John R. Szewczyk, Esq.

, SBN 56449 [Filing Fee Exempt

CLIFFORD & BROWN Gov. CODE §§6103, 26857]
2 A Professional Corporation
Attorneys at Law
3 1430 Truxtun Avenue, Suite 900
Bakersfield, CA 93301
4 (661) 322-6023
Fax: (661) 322-3508
5
Attorneys for Defendant,
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN
9 UNLIMITED CIVIL - METROPOLITAN DIVISION
10 ***

11 FIRST AMENDMENT COALITION and CASE NO. BCV-17-102929

CALIFORNIANS AWARE: THE CENTER Petition filed: 12/22/2017
12 FOR PUBLIC FORUM RIGHTS,
RESPONDENT'S OPPOSITION TO
13 Petitioners/Plaintiffs, MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY
14 vs. RELIEF FOR VIOLATIONS OF THE
RALPH M. BROWN ACT, CALIFORNIA
15 CITY OF BAKERSFIELD, PUBLIC RECORDS ACT, AND
CALIFORNIA CONSTITUTION,
16 Respondent/Defendant. ARTICLE I, Section 3(b);
DECLARATIONS OF VIRGINIA
17 GENNARO and CHRIS HUOT IN
SUPPORT OF OPPOSITION
18
DATE: December 13, 2019
19 TIME: 8:30 a.m.
DEPT: 10
20
21
22
23
24
25
26
27
28
1
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 TABLE OF CONTENTS
2
PAGE
3

4 Table of Authorities 2

5 STATEMENT OF FACTS 4

6 APPLICABLE LAW AND THE CITY'S ADHERENCE TO THE SAME 6

7 THERE WERE NO VIOLATIONS OF THE BROWN ACT 7
8 IN CONNECTION WITH THE NOTICE OF AND
CONDUCT OF THE CLOSED SESSION MEETINGS
9
A. The City Properly Noticed The Closed Session Meetings In 8
10 Express Compliance With The Existing Statutory Requirements
11 B. The City Properly Was Permitted To And Properly 11
12 Conducted The Closed Session Meetings In Express
Compliance With The Existing Statutory Requirements
13
C. Conclusion 13
14
THE CITY DID NOT VIOLATE AND HAS COMPLIED WITH THE 15
15
CALIFORNIA PUBLIC RECORDS ACT
16
CONCLUSION 18
17
18

19

20

21

22
23

24
25
26

27
28
2
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 TABLE OF AUTHORITIES
2 CASES PAGE
3
Haynie v. Superior Court
4 (2001) 26 Ca1.4th1061, 1075 15

5 California First Amendment Coalition v. Superior Court

(1998) 67 Cal.App.4th159, 165 15
6
Castaic Lake Water Agency v. Newhall Water District
7
(2015) 238 Cal.App.4th1196 11
8
Rogers v. Superior Court
9 (1993) 19 Cal.App.4th469, 481 15
10

11 STATUTES PAGES

12 Government Code §6250 6

Government Code §6252 15
13 Government Code §6254(k) 16
Government Code §54954.2 9
14 Government Code §54954.5 4,9,10,14
15 Government Code §54956.5 9
Government Code §54956.9 4,8,13
16 Government Code §54956.9(a) 8
Government Code §54956.9(d)(2) 5,8,14
17 Government Code §54956.9(e)(1) 5,8,10,14
Government Code §59450 6
18 Government Code §54963 12
19 Government Code §54963(a) 16

20 Evidence Code §54954.5 16

21 California Attorney General, The Brown Act: Open Meetings 10

for Local Legislative Bodies
22 (2003) Vol. 4
23

24

25

26

27
28
3
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 COMES NOW, Defendant CITY OF BAKERSFIELD ("Respondent"/Defendant") and
2 submits its Opposition to Petitioners' FIRST AMENDMENT COALITION and CALIFORNIANS
3 AWARE: THE CENTER FOR PUBLIC FORUM RIGHTS ("Petitioners") Motion for Writ of
4 Mandate, Injunctive, and Declaratory Relief for Violation of the Ralph M. Brown Act, Public Records
5 Act and California Constitution Article I, Section 3(b) as follows:
6 STATEMENT OF FACTS
7 The City Council for the City of Bakersfield ("Respondent") normally holds regularly
8 scheduled monthly meetings. As part of these meetings, and where circumstances dictate and allow,
9 and only after the matters have been properly placed on the agenda and noticed, the City Council will
10 hold closed session meetings.
11 In this particular matter the focus is on certain closed session meetings held by the City
12 Council on July 19, 2017, September 6, 2017, and September 20, 2017 (collectively the "Meetings").
13 As set out in detail in the supporting Declarations of City Attorney Virginia Gennaro, and
14 Assistant City Manager Chris Huot, the City was seeking to conduct discussions on matters pertaining
15 to what City managers and the Council believed, based upon the existing facts and circumstance, was a
16 significant exposure to litigation from plaintiffs who were not yet aware of their claims. See,
17 Declaration of Virginia Gennaro, Paragraphs 8-14, 17, 20 ("Gennaro Dec."); Declaration of Chis Huot,
18 Paragraphs 3-9 ("Huot Dec."). While the exact nature of these discussions cannot be revealed given
19 the existence of attorney-client privilege, the range of issues could have possibly included the need for
20 bankruptcy protection, labor negotiations and/or employment terminations/layoffs, and litigation
21 related to the use of tax related initiatives for revenue generation purposes. Gennaro Dec. 8-14. While
22 the City is willing to consider a limited waiver of the attorney-client privilege as to the specific topics
23 under discussion, the content of the items on the closed session agendas focused simply and directly
24 on need to discuss anticipated/expected litigation and related legal issues. Gennaro Dec. 8-14, 17, 20.
25 Based upon such circumstances, and in strict reliance upon the express wording of the
26 applicable statutes set forth under Government Code Sections 54954.5 and 54956.9, the City Attorney,
27 whose job it is to assist in the formulation and preparation of the closed session agenda, listed the
28 topics for discussion for the Meetings as "Conference with Legal Counsel — Potential Litigation:
4
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 Closed Session pursuant to Government Code Section 54956.9(d)(2), (e)(1) [two matters]." Gennaro
2 Dec. 8-14, Plaintiffs' Ex. "X" pages 419-420, 437-441, 454-458. This was done based upon the fact
3 the City believed that it then faced a significant exposure to litigation, and that the plaintiffs who held
4 claims did not yet know of the nature or extent of said claims. In short, the agenda item in question fit
5 within the provisions of the applicable code sections which reads in specific part applicable to what
6 must be disclosed under subsection (e)(1) that "facts and circumstances that might result in litigation
7 against the local agency but which the local agency believes are not yet known to a potential plaintiff
8 or plaintiffs, which facts and circumstance need not be disclosed." Gennaro Dec. 8-14, 17, 20; Huot
9 Dec. 3-9.
10 The actual discussions which ensued during the Meetings solely concerned legal advice and
11 counsel, matters which are specifically and logically permitted to be discussed in closed session. Any
12 and all information which was tangentially related to these circumstances, which were ancillary to the
13 purpose, intent and actual discussions, does not change the character of the discussions or the fact that
14 such discussions can be held in a closed session setting. Gennaro Dec. 8-14, 17, 20; Huot Dec. 3-9.
15 In addition to the foregoing circumstances, the City has affirmatively demonstrated that it does
16 not attempt to or otherwise intentionally or purposefully circumvent the provisions of the Brown Act
17 in any manner or method. The City has in place policies and procedures calling for strict compliance
18 with the Brown Act. It sponsors and requires training in the law, and offers legal assistance to City
19 representatives and employees, so that all participants know the law, observe the law, and act in
20 compliance with the same. It also sparingly uses the provisions of Section 54956.9 to classify matters
21 that are subject to attorney client privilege discussions, and only then applies the same to legitimate
22 circumstances which permit this limited and structured exception. Gennaro Dec. 3-7; Huot Dec. 3-9.
23 The allegations related to the alleged failure to produce unspecified documents and other
24 records in response to rather cryptic requests for the same under the Public Records Act are also
25 without factual or legal support.
26 Admittedly, both Petitioners did make formal, yet broad and non-specific, requests for a wide
27 range of records. The City, in accordance with its governing policies and procedures, and in
28 compliance with the existing law and requirements, produced responsive documents except those
5
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 which were privileged or otherwise not subject to disclosure. There was an issue which arose raised by
2 the legal representative of the First Amendment Coalition as to the fact that certain documents already
3 in its possession, though said documents appear to have been illegally obtained by that entity, were not
4 produced. The City subsequently replied and explained why these documents were not initially
5 produced. Gennaro Dec. 15-21.

6 Since that time, in response to the Public Records Act Requests, as well as in response to
7 formal discovery requests, and after clarification was sought and provided by the court on the issue of
8 privileges and scope, any and all documents responsive to the Public Records Act requests have been
9 provided to Petitioners and their attorneys. Stated simply, there are no other responsive or applicable
10 documents to produce. Petitioners ignore this reality and seek an order compelling the City to produce
11 what does not exist. Gennaro Dec. 15-21.
12 APPLICABLE LAW AND THE CITY'S ADHERENCE TO THE SAME
13 While the moving papers go on at length about the history, purpose, intent and scope of the
14 "Ralph M. Brown Act," set forth at Government Code Section 59450 et.seq. ("Brown Act"). In a
15 similar manner the moving papers again address at length the history, purpose, intent and scope of the
16 California Public Records Act, set forth at Government Code Section 6250 et.seq. ("CPRA"). As such
17 matters are common knowledge and well recognized, the City will not engage in any such recitations
18 in this Opposition.

19 Stated simply, the City acknowledges the basic dictates of the Brown Act, to wit, that it must
20 conduct its operation in an open manner. Its obligations include, but are not limited to: knowing what
21 type of actions constitute a meeting which is governed under the Act; providing notice in advance of
22 when meetings will be held and what will be discussed at these meetings; creating agendas in advance
23 of its scheduled meetings; and conducting its discussions and votes before the public in the course of a
24 duly convened and noticed meeting. Gennaro Dec. 3-14, Huot Dec. 3-4.
25 As demonstrated in the evidence tendered by the City, it goes to great lengths to both observe
26 and conform its acts to the applicable law. It provides and mandates training for its employees, staff
27 and managers, as appropriate to their positions; it requires its elected officials and members appointed
28 to Boards, Commissions and Committees to obtain training and observe the dictates of the law; and it
6
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 has adopted policies and procedures to require compliance with the law and to enforce its
2 requirements. The City's commitment is so serious that even when there was a suspension of certain
3 provisions of the law for a period of time the City, through an expressly crafted and adopted
4 Resolution, agreed to continue complying with the law. See, Gennaro Dec. 3-8, 14; Huot Dec. 3-9.

5 The City also actively takes steps to ensure that it publishes accurate and timely agendas in
6 connection with scheduled meetings and hearings and conducts its meetings in accordance with the
7 statutory requirements. As part of its efforts to ensure compliance it provides access from its City
8 Attorney and her staff with regard to the creation and posting of agendas, and legal representatives are
9 often in attendance at meetings in order to ensure compliance with the law at all times. Gennaro
10 Dec. 3-14, 17, 20.

11 In a similar manner the City acknowledges and adheres to the provisions of the CPRA. It
12 expressly recognizes its obligations to keep records in accordance with the law, and when served with
13 a timely and proper request for records it produces the same in accordance with the dictates of the law.
14 In order to comply with the law and to ensure that it responds appropriately, the City has in place
15 policies and procedures which provide guidance and instruction to its employees and managers on how
16 to handle and respond to any legitimate CPRA request. Gennaro Dec. 15-21; Plaintiff's Exhibits, Ex.
17 "R" 272-287; Ex. "X" 336-376.

18 There being no evidence to the contrary there can be no question that the City both
19 understands, acknowledges, and at all times conforms its actions in observation of and in conformance
20 with the law under the Brown Act and the CPRA.

21 THERE WERE NO VIOLATIONS OF THE BROWN ACT

22 IN CONNECTION WITH THE NOTICE OF AND CONDUCT OF THE
23 CLOSED SESSION MEETINGS
24 Petitioners allege that the City violated the Brown Act by failing to provide adequate legal
25 notice of the subject Meetings and in then carrying out allegedly improper discussions during the
26 subject meetings. Neither the facts nor the law support their assertions.
27
28
7
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF- BCV-17102929 SDS
 1 A. The City Properly Noticed The Closed Session Meetings In Express Compliance
2 With the Existing Statutory Requirements
3 The analysis of Petitioners allegations that the City violated the provisions of the Brown Act

4 necessarily involves a review of the pertinent Government Code Sections.

5 The Brown Act specifically permits an agency to hold a closed session meeting, based upon the
6 advice of its counsel, for purposes of conferring with, or to receive advice from its legal counsel
7 regarding litigation related matters. A closed session is allowed where such discussions concerning

8 such matters would prejudice the position of the local agency in any such litigation. See Govt. Code
9 §54956.9(a). The content of such discussion is then subject to protection as consisting of attorney-

10 client privileged communications. See Govt. Code §54956.9.

11 Under this specific provision, litigation is considered pending when, "a point has been reached
12 where, in the opinion of the legislative body of the local agency on the advice of its legal counsel,
13 based upon existing facts and circumstances, there is a significant exposure to litigation against the

14 local agency. See Govt. Code §54956.9(d)(2). Where applicable, the term "existing facts and

15 circumstances" shall consist of "[f]acts and circumstances that might result in litigationagainst the

16 local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs,

17 which facts and circumstances need not be disclosed."See Govt. Code §54956.9(e)(1) [emphasis

18 added].

19 Any reasonable and logical construct of this language supports the conclusion that the City is

20 entitled to hold a closed session discussion and provide notice of the same in accordance with the

21 requirements of Section 54956.9 where applicable facts and circumstances exist. Such conditions
22 existed in the case of the three Meetings.

23 Stated simply, based upon consultations with and advice of the City Attorney, Ms. Gennaro,
24 the City honestly believed that based upon existing facts and circumstances it faced the menace of
25 significant exposure to litigation. Moreover, the City had reason to believe that the potential plaintiffs
26 holding such claims did not as of yet know of the pertinent facts and circumstances which would
27 support their claims. See Gennaro Dec. 3-14, 17, 20; Huot Dec. 3-9. This brought the situation in
28 which the City desired and actively sought out advice and counsel of its attorneys into the express
8
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 coverage of Section 54956.5 and allowed for a closed session meeting.
2 With respect to providing notice of the closed session Meetings, the City's actions were subject
3 to the provisions of the Brown Act. Specifically, each item to be transacted or discussed in the closed
4 session had to be briefly described on the agenda for each Meeting. See, Govt. Code §54954.2(a). The

5 notice required, in the form of the agenda, must contain a brief general discussion of each item to be

6 transacted or discussed. See, §54954.2(a). In order to assist agencies in satisfying their obligations of

7 what must be disclosed the California Legislature adopted section 54954.5. This model language sets
8 forth a type of fill in the blank approach to the agenda requirements. With regard to pending litigation
9 the particular provisions of Section 54954.5 reads:

10 For purposes of describing closed session items pursuant to Section 54954.2, the
agenda may describe closed sessions as provided below. No legislative body or
11 elected official shall be in violation of Section 54954.2 or 54956 if the closed
session items were described in substantial compliance with this section.
12
Substantial compliance is satisfied by including the information provided below,
13 irrespective of its format:

14 (c) With respect to every item of business to be discussed in closed session

pursuant to Section 54956.9:
15
CONFERENCE WITH LEGAL COUNSEL — ANTICIPATED LITIGATION
16
Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision
17 (d) of Section 54956.9 (Specify number of potential cases)

18 (In addition to the information noticed above, the agency may be required to
provide additional information on the agenda or in an oral statement prior to the
19 closed session pursuant to paragraphs (2) to (5) inclusive, of subdivision (e) of
20 Section 5456.9)

21 [emphasis added]

22 Reviewing this statutory language on its face, leads to the inescapable conclusion that the

23 language used by the City in its duly noticed agenda items for each of the subject Meetings strictly met

24 with this stipulated standardized formats. In this particular case the language utilized by the City for

25 each closed session Meeting read (though the number of matters addressed would vary):

26 "Conference with Legal Counsel — Potential Litigation: Closed Session pursuant to

27 Government Code Section 54956.9(d)(2), (e)(1) [two matters]."
28 See, Exhibit "X" pages 419-420, 437-441, and 454-458.
9
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 The use of this language clearly provides the City with a safe harbor as to the information
2 specifically set forth on the agenda. See, Govt. Code §54954.5.
3 Petitioners attempt to raise an issue with regard to the foregoing inescapable conclusion by
4 claiming that the statutes require more in the way of a specific description of the facts and
5 circumstances giving rise to the need for the closed session, even where the provisions of Section
6 54956.9(e)(1) exist. This position is directly contrary to the wording of Section 54954.5 which
7 intentionally and conspicuously leaves out the reference to subsection (e)(1) in the language required
8 under the terms of the statute. Moreover, the citation or authority which Petitioners rely upon in

9 support of their claims that some additional language was required to be included when a situation
10 involving subsection (e)(1) exists, to wit, the California Attorney General, The Brown Act: Open
11 Meetings for Local Legislative Bodies (2003) Vol. 4 expressly agrees that no additional language or
12 description need be provided when the circumstances applicable to subsection (e)(1) exist. In this
13 regard the treatise reads as follows:

14 Where the agency believes that facts creating significant exposure to litigation are
15 not known to potential plaintiffs, the facts need not be disclosed.
16 Id. at page 23.

17 Respondent would additionally note that this construction of the applicable statutes makes
18 sense, both logically and legally. Any attempt to compel disclosure of facts and circumstances

19 involving significant litigation exposure of an agency, especially where the plaintiffs are or may not
20 have knowledge of their claims, would necessarily in turn expose the agency to a far greater likelihood
21 that the anticipated situation of litigation would come to pass. Moreover, disclosing such
22 circumstances effectively robs the agency of its ability to discuss such matters in confidence with its
23 choice of legal counsel. This would be the essence of prejudice to the interests of the City.
24 Moreover, while the statutory language does limit the range of attorney-client privilege in
25 connection with certain matters, it does not eliminate the privilege. Even more significant is the fact
26 that the provisions of subsection (e)(1) expressly speak in terms of circumstances that "might" result in
27 litigation and refer to "potential plaintiffs." These added defining terms are only logical in a construct
28 that does not compel an agency to reveal facts of potential claims not yet realized and not yet known to
10
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 those who might file suit, where the agency seeks advice about such possibilities.
2 Finally, and added to the foregoing circumstances, substantial compliance by the City in
3 connection with the notice/agenda requirements can be demonstrated by reference to existing
4 decisional law. The case of Castaic Lake Water Agency v. Newhall Water District (2015) 238

5 Cal.App.4th 1196 dealt with a situation wherein the plaintiff sought to overturn certain actions taken

6 by the defendant based upon claims that the defendant had failed to comply with the open meeting

7 requirements of the Brown Act. Both the trial court, and the appellate court concluded that the

8 defendant had substantially complied by having provided a notice which substantially complied with

9 the Brown Act. See, Castaic, supra at 1205-1207. The subject agenda notice which was challenged

10 contained an error in the section under which the Defendant was invoking closed session discussions.

11 In the case the issue presented was an agenda item that noted that the defendant's Board of Directors

12 would conduct a conference with its legal counsel, in closed sessions and discuss "potential litigation."

13 The appellate court effectively approved this language as substantial compliance with the requirements

14 of the Brown Act by holding that "so long as notice of the essential nature of the matter an agency will

15 consider has been disclosed in the agency's agenda, technical errors of immaterial omissions will not

16 prevent an agency from acting." Id. At 1206-1207.

17 While the exact same situation does not exist in this particular matter, the nature of the agenda

18 notice, coupled with the express provisions of the statutory language and scheme, clearly validate the

19 agenda notice used by the City in this case. Gennaro Dec. 3-14, 17, 20; Huot 3-9.
20 In view of these facts and circumstances, and consistent with the express provisions of the law,

21 there can be no doubt that the City both expressly and substantially complied with the law concerning
22 its agenda announcements for each of the subject Meetings.
23 B. The City Properly Was Permitted To And Properly Conducted The
24 Closed Session Meetings In Express Compliance With the Existing Statutory Requirements
25 The City will not belabor the point that it was entitled to conduct a closed session discussion

26 for purposes of obtaining the advice and counsel of its attorneys concerning the very real threat of

27 significant exposure to litigation, especially where there is no contrary evidence which serves the

28 refute such circumstances. The City's position is amply addressed above, and is supported by the
11
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 Declarations of Virginia Gennaro and Chris Huot, both of whom were involved in the actual meetings
2 and have provided detail about the purpose and intent of the subject meetings. Gennaro Dec. 3-14, 17,

3 20; Huot Dec, 3-9.

4 In support of their position that the actual discussions conducted at the Meetings allegedly had

5 nothing to do with legal advice, Petitioners resort to supposition, innuendo and presumptions. Their

6 sole allegation is that the subject discussions dealt only with City finances.

7 This allegation is based upon one comment in an email from Chris Huot addressing the

8 ancillary matters discussed with legal counsel in the context of the advice being sought. It is also

9 premised upon a document addressing City finances which was impermissibly and illegally delivered

10 to Petitioners in express derogation of the provisions of Government Code Section 54963. The only
11 other alleged evidence is what Petitioners suggest is a lack of candid responses in Defendant's

12 discovery responses. Briefly setting aside pertinent objections and mischaracterizations, it is evident

13 that Petitioners have failed to supply this court with any competent testimony or evidence which

14 supports their assertions as to the alleged content of the actual discussions held in the subject

15 Meetings.

16 In marked contrast to these ruminations and suppositions about the actual discussions as put

17 forth by Petitioners, the City has provided express testimony that the matters under consideration and

18 discussed during the Meetings directly dealt with the solicitation of legal advice about matters which

19 exposed the City to significant exposure to liability through litigation. Gennaro Dec. 3-14, 17, 20;
20 Huot Dec, 3-9. While the City will consider consultations about a limited waiver of the attorney-client

21 privilege concerning the exact nature of the subject discussions held at the Meetings, the
22 characterization, content and purpose of the Meetings has been affirmed by competent testimony. In
23 short, the only direct and competent evidence is that the discussions during each of the closed session
24 Meetings dealt with legal analysis and advice.

25 It is also important to note that while some of the information which may have been imparted
26 during the discussions concerning legal advice and counsel the City was seeking and discussed would
27 have necessarily involved financial matters of the City, these particular facts and circumstances were
28 incidental and ancillary to the subject discussions. See, Gennaro Dec. 3-14, 17, 20; Huot Dec, 3-9. In
12
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 fact, it is hard to fathom how any person or entity, including a public agency, can discuss legal advice
2 and issues in a vacuum. The nature of the advice sought requires discussion of pertinent facts and
3 circumstances—lest there could be no viable legal analysis or advice. It is in this vein that the
4 discussion of financial issues was introduced.

5 These discussions are clearly within contemplation of closed session discussions where legal

6 advice is solicited, as is expressly recognized by the existing statutory provisions. Again, it bears

7 repetition that the clearly expressed intent of the California Legislature was that a local agency is
8 entitled to conduct discussions concerning the fact that it faces a significant risk of substantial liability

9 from circumstances that might result in litigation. See, Govt. Code Section 54956.9. This section

10 expressly authorizes such discussions in closed session where such discussion in open session would

11 result in prejudice to the interests of the agency. Moreover, this same section allows for the application

12 of attorney-client privilege with respect to the nature and content of the subject discussions. Without

13 such protections, an agency would be deprived of its ability to seek legal advice and conduct

14 privileged discussions with its legal representatives. Such a circumstance is alone determinative of the

15 existence of prejudice with regard to the defined legal circumstances.

16 Moreover, suggesting that there can be no other matters discussed in a closed session wherein

17 an agency is seeking legal advice, especially matters which concern and bear upon the legal advice

18 sought, would also effectively deprive an agency of its ability to protect itself and its citizens against
19 legal threats. Any such outcome is contrary to the express provisions of the Brown Act and the

20 statutory directive allowing an agency, including the City, to solicit, discuss and receive legal advice
21 in a closed session setting.
22 While it is convenient to suggest that the purpose of the Brown Act should not be subject to
23 contravention by allowing agencies to hide behind matters classified as litigation and the seeking of
24 legal advice, where, as here, there is no evidence which creates any true or significant dispute as to the
25 purpose, intent and actual content of the City's discussion during the subject Meetings, there is no

26 basis to find that the City violated the provisions of the Brown Act.

27 C. Conclusion

28 In this case Petitioners are not seeking to overturn any action taken by the City in any of the
13
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 closed session Meetings. As they know, no such remedy is available to them as no action was taken.

2 What they seek is to have this court declare that the actions of the City in properly noticing the subject

3 Meetings for purposes of a closed session, and then conducting the Meetings in a closed session

4 setting, were somehow improper.

5 However, as demonstrated above, the facts of this matter, when applied to the clear and cogent

6 statutory law, expressly sanctioned the actions of the City in connection with the issue discussed in

7 each of the three Meetings. First, the City faced circumstances in which it understood and believed

8 that it faced a significant exposure to litigation with resulting liability, and it believed that these

9 circumstances were not as of yet known the potential plaintiffs. Second, consistent with the advice and

10 direction of its attorney, the City strictly followed the provisions of Section 54954.5 in providing

11 notice of its intent to conduct a closed session meeting pursuant to the provisions of 54956.9(d)(2) and

12 (e)(1), utilizing the exact words of the statutes. Third, the City thereafter conducted the meetings in

13 accordance with the statutory dictates, during which the City sought and received legal advice from its

14 attorneys based upon the circumstances that prompted the need for the meeting. Contrasted with the

15 supposition, innuendo and presumptions upon which Petitioners have based their claims, these facts

16 support a judgment in favor of the City.

17 Finally, the City additionally notes that the primary basis of the injunctive relief which

18 Petitioners seek is also premised upon allegations that have no factual support. To wit, Petitioners

19 suggest that the City routinely follows the alleged practice of discussing matters under the provisions

20 of Section 54956.9 which should be discussed in open session. They have offered no evidence of such

21 circumstances, and have not addressed any other circumstances other than those that arise in

22 connection with the three Meetings. In marked contrast the City has confirmed that no such

23 circumstances have ever existed. Gennaro Dec. 3-7, 14; Huot 8-9. Thus, their request for injunctive

24 relief to stop allegedly ongoing and rampant improper practices is not based upon any competent

25 evidence and does not establish that there is any chance of future or ongoing violations. Thus, their

26 request for injunctive relief and for the taping of all closed session discussion going forward should be

27 denied. A failure to do this would unnecessarily expose the City and others, including this Court to

28 countless challenges and repetitive legal filings brought forth by a wide variety of persons and entities
14
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 seeking to gain information which the City was and is entitled to discuss in closed session.
2 THE CITY DID NOT VIOLATE AND HAS COMPLIED WITH THE
3 CALIFORNIA PUBLIC RECORDS ACT
4 The City notes that the premise of the current Motion is that the City has failed to comply with

5 the CPRA with regard to producing certain records in response to requests sent by each of the

6 Petitioners. The simple answer to this issue is that the City has produced all records it has in response

7 to the subject requests. Petitioners have not shown via the presentation of competent evidence that this

8 has not occurred. Thus, the pending Motion should be denied as being moot.

9 Notwithstanding the foregoing, and as this court is aware, a request for records under the

10 CPRA must reasonably describe an identifiable record or records. See. Govt. Code §6253(b). The

11 request must be focused, specific, and reasonably clear so that the subject agency can determine what

12 record or record is being sought. See, Rogers v. Superior Court (1993) 19 Cal.App.4th 469, 481;

13 California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 165. In response

14 to a request the subject agency must undertake a reasonable effort to search for, locate and produce the

15 requested records. See, California First Amendment Coalition, supra at 166. After conducting its

16 search the subject agency must respond by either noting that it has no responsive records or that it

17 does have records and that it will either produce the same, note that it is withholding the same, or that

18 it will produce the records in redacted form. The subject agency has no obligation to create any

19 records, or does it have an obligation to produce any form of privilege log or list of documents being

20 withheld. See, Govt. Code §6252€; Haynie v. Superior Court (2001) 26Ca1.4th 1061, 1075.

21 In this particular case the requests made by each of the Petitioners were vague and non-

22 focused, effectively seeking a broad range of documents. See, Exhibits "E and "F." In this regard, the
23 request by First Amendment Coalition sought records in connection with documents attached to their
24 demand letter and action taken based on the subject closed sessions. The City responded with
25 documents based upon its understanding of the records being requested. The request by Californians
26 Aware sought documents "created before or after these meetings concerning the actions to be taken as
27 a result thereof." As cryptic as this request was, as there were no actions taken as a result of the
28 Meetings, as duly noted on the Minutes of the City related to the Meetings, there would have logically
15
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 been no documents to produce.
2 Only Petitioner First Amendment Coalition raised an issue with regard to the records that were

3 produced, to wit, it inquired of the City as to the likelihood of additional records, noting that that

4 records which it referenced and included in its request had not been produced. The City's response

5 was that it had not produced that which the Petitioner clearly and unequivocally had in its possession,

6 and by noting that these records were otherwise protected from disclosure as being privileged. Thus,

7 the City did respond and Petitioners had the records they sought as they confirmed in their own

8 correspondence.

9 Petitioners now claim that the City's initial and follow-up responses establish a violation in

10 that the City could not simply confirm that the records in the possession and control of Petitioner were

11 responsive and privileged. However, as also noted in the Petitioners Exhibits attached to this Motion

12 the very documents they base their claims upon have been produced by the City. See, Gennaro Dec.

13 15-21; Exhibit "X" at pages 469-530. Thus, the documents have been produced, despite the fact that

14 the City contends that the same were improperly delivered to Petitioners in the first instance in

15 violation of Government Code Section 54963(a) and despite the same being protected from disclosure

16 by virtue of Government Code Section 6254(k) [which protects from disclosure any document

17 otherwise subject to protection under the Evidence Code, including Section 954 which provides the

18 privilege for attorney-client communications]. While this Court has tangentially considered the issue

19 of privileges attendant to the subject documents, the fact that the same were prepared solely for use in

20 communicating facts and circumstances to the City Attorney, in connection with the solicitation of

21 legal advice, renders the documents privileged. Moreover, given the nature of the subject Meetings, in

22 that the same unequivocally concerned the solicitation of legal advice, which of necessity involved

23 discussion of related factual circumstances pertinent to the advice sought, the documents were entitled

24 to absolute protection under the provisions of Government Code Section 54963(a). In short, while it is

25 technically correct to suggest that simply because documents were discussed in a closed session does
26 not render the document protected from disclosure because of the closed session, where those
27 documents are part of attorney-client communications, whether in a closed session proceeding or not,
28 the documents are and remain protected under the attorney-client privilege.
16
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 Thus, the City's response was proper and identified circumstances excusing the production of
2 the subject records, albeit not fully explained. The technical failure to flesh out the issues which
3 existed should not and cannot overcome the fact that the subject records are entitled to protection
4 under the attorney-client privilege.

5 In further support of their claims relating to a violation of the CPRA, Petitioners cite to the fact
6 that they were compelled to seek documents in the course of discovery, even having to file a motion to
7 compel, the bulk of which was granted by the court. The City maintains that it properly raised
8 objections to the documents sought in connection with the discovery requests and that it should not
9 have been compelled to produce documents subject to the attorney-client privilege. Notwithstanding
10 the foregoing, the City did, in accordance with the ruling of the Court, produce all documents sought
11 by Petitioners. The documents produced were not limited in any respect, except as expressly
12 authorized by the Court, to wit, the only documents withheld were set forth in a privilege log and
13 identified as consisting of notes taken by the City attorney which reflected her work product and her
14 privileged communications with the City relative to the legal advice which was sought. At no time
15 have Petitioners challenged the further responses provided by the City after it was ordered to provide
16 such further responses. The instant motion cannot be used as a vehicle to affect such a challenge at this
17 time, nor could the Petitioners overcome the privileges attendant to the only documents which were
18 withheld.

19 Stated another way, the City has unequivocally confirmed that it has no other documents
20 response to the CPRA requests. See, Gennaro Dec. 15-21. Moreover, Petitioners have not tendered any
21 admissible or cogent evidence which can support their claims or the relief they seek, to wit, that the
22 City yet again comb through its records and produce what does not exist. What they offer is the
23 unsupported and rank opinion, couched in language of disbelief, that there are still records to produce.
24 They have also failed to offer any cogent or competent testimony that the City has failed to fully and
25 properly respond to CPRA requests in the past, or, even if the Court finds some type of violation in
26 this instance, that the City will repeat this conduct in the future. Such circumstances are manifestly
27 insufficient to support the claims they have brought and the relief they seek.
28 Thus, there is no basis for this Court to find in favor of Petitioners or to order the City to
17
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 1 undertake a hunt for that which does not exist.

2 CONCLUSION

3 Based upon the foregoing, and in light of the operative facts and applicable law, this Court is

4 respectfully requested to deny Petitioners' Motion and the relief they seek, entering judgment in favor

5 of the City of Bakersfield.

7 Dated: November 20, 2019 CLIFFORD & BROWN

9
By:
10 JOHN R. SZEWCZYK, ESQ.
Attorneys for Respondent,
11 CITY OF BAKERSFIELD
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
18
RESPONDENT'S OPPOSITION TO MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17102929 SDS
 John R. Szewczyk, Esq., SBN 109918 [Filing Fee Exempt
1 CLIFFORD & BROWN Gov. Code §§6103, 26857]
A Professional Corporation
2 Attorneys at Law
1430 Truxtun Avenue, Suite 900
3 Bakersfield, CA 93301
(661) 322-6023
4 Fax: (661) 322-3508
5 Attorneys for Defendant, CITY OF BAKERSFIELD
6

7
SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN
8
UNLIMITED CIVIL — METROPOLITAN DIVISION
9
***
10
FIRST AMENDMENT COALITION and Case No.: BCV-17-102929 SDS
11 CALIFORNIANS AWARE, THE CENTER FOR Complaint filed: 12/21/2017
PUBLIC FORUM RIGHTS, Trial Date: Not set
12
Petitioners/Plaintiffs, DECLARATION OF CHRIS HUOT
13 TENDERED IN OPPOSITION TO MOTION
VS. FOR WRIT OF MANDATE, INJUNCTIVE,
14 AND DECLARATORY RELIEF FOR
CITY OF BAKERSFIELD, VIOLATIONS OF THE RALPH M. BROWN
15 ACT; CALIFORNIA PUBLIC RECORDS ACT;
Respondent/Defendant, AND CALIFORNIA CONSTITUTION, ART. I
16 SEC. 3(B)
17 DATE: December 13, 2019
TIME: 8:30 a.m.
18 DEPT: 10
19 I, Chris Huot, hereby declare as follows:
20 1. I am employed by the City of Bakersfield as an Assistant City Manager. I have held this
21 position since February 9, 2015. As an employee in the City Manager's office I am intimately familiar
22 with the process by which the City creates the agendas for City Council meetings, including both the
23 regular open meeting and closed sessions discussions. I am providing this Declaration in support of the
24 City of Bakersfield's Opposition to the Petitioner's/Plaintiff s Motion For Writ of Mandate, Injunctive
25 Relief and Declaratory Relief filed herein.
26 2. I have personal knowledge of all the facts set forth herein and if called as a witness in this
27 matter could and would competently testify as to the matters set forth below.
7R
1
DECLARATION OF CHRIS HUOT TENDERED IN OPPOSITON TO THE MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17-102929 SDS
 3. In my rale as Assistant City Manager,:and based upon my own experience, training and
2 research,. I am familiar with the provisions of the statutory scheme of open government set forth at
Government Code. Section :54950 et. seq., Which is more commonly referred to as the "Brdwn Act." I
4 am knowledgeable as to What matters mast be discusSed in open session 'at 'a duly convened Meeting of
5 the City 'Council, and what type of matters can 'be discussed and considered in a closed 'session
6 'meeting..
7 4. Back in June,and July 2017 I was tasked With preparatiOn of a general
8 overvieW/Surnniary of City finances which Was. to be used in an ancillary manner as part of an
9 anticipated presentation to the Bakersfield City Council concerning the need for legal advice and
10 'counsel on anticipate litigation Which created a. substantial expoSure to the City. The primary issues
11 for discussion concerned legal advice.that the. City Manager's office and City Council. were: seeking
12 from the City Attorney, Ms. Virginia Gennaro. At that time it.was the 'opinion of the.City Manager's
13 office that the City of 'Bakersfield. was facing significant exposure to litigation from a litany of
14 individuals 'who did not have knoWledge Of the nature of their. claims at that e. cptess. point in trine.
15 This situation Was presented to the City Attorney's office, who concurred in. our offiee:S evaluation :Of
1.6 the pertinent circumstances, and the..matter was placed on.the agenda for discussion .during closed
17* session as the purpose.of the discussions..was .solicit legal counsel and advice.
18
. 5. My presentation,. Which was subsequently improperly disolbsed by someone. in
19 attendance at the tloSed Session meetings held by 'the- City COundil on July 19, 2017, ;September 6,
20 7017 and September,20, 201.7, was not tendered to the. City 'Council for discussion of City finances,
21 'rather it was solely for :use: in educating 'the City Aunt/16.y and 'City Council in Connection :with
22 .projected litigation Which posed a significant eXpoSure to the.City.
'23 -6, During the course of the meetings held in closed session by-the City Council on July
24 19, 20'17, September 6, 2017 'and September 20, 2.017, the City Council was soliciting -advice:. and.
.25 receiving legal advice from: the City Attorney, Ms.. Gennaro. No. actions: were 'taken in. connection with
'26 these. discussions;other than a referral to staff for inclusion of seertain matters on future. presentationS
.27 to the' City Council during upeOming open sessions;
2R
2
DI cLAitATio1,1 CHRIS fiDOT TENDERED IN OI'POSlTON TO Ti E.MOTION FOR.,WRITOr MANDATE;
INJDNeTIVR. AND DEOLAkATORY'RELIEr--.13CV-17-.11t929.S.DS
 1 7: The information requested. from the 'by a member bi• memberS of the City Council
2 which is referenced in my October. 5, 2017 email attached as Exhibit D the moving papers, entailed
3 the .slide, presentation reflecting ancillary information that related. solely to the. projected. litigation
4 which exposed the. Cityto a significant exposure otclainns-and liability.
5 8. BaSed upon the foregoing, the City believed and unclerstocid that it. was not in violation
6 of the.Brown Act, or in its:agenda description of the: closed 'session topic. to be. discussed, at any point
7 in time.
8 9: I can COnfirni the fact that there was no past practice, nor has there beerre continuing
9 practice, by the City of allegedly concealing, matters for discussion by the City Council pursuant to the-
10 provisions' of Government Code Section *54956.9 arid its subsections (d) and (0). Only when a .matter.
11 . arises that clearly. fits within the 'description of these 'subsections; to wit, that which involves. a.
Significant exposure to litigatiOn involving the City, and where the facts are not yet known to the
13 potential Plaintiff(s) exist,.is. this section invoked.
14 I declare under penalty ofperjury,:under the laws :of the State: of California that the foregoing is

15. true and correct

16 'This Declaration is executed on this r day of:Noyernber 2 19 in. Bakersfield California.
17

18 (

CHPJS 1-11JOT
19

20

21

22

23

?=1

25
26

27

2R
3
DECLARATION Or CORIS4-1UOT. TP,IsIDETtED 11V OPPOSITON TI-18 MOTION FOR' WRIT OF MANDA'113,
.110UNCTIVE, AND DECLARATORY RELIEF — 7–i 0.2.92. SDS
 John R. Szewczyk, Esq., SBN 56449 [Filing Fee Exempt
1 CLIFFORD & BROWN Gov, Code §§6103, 26857]

2 A Professional Corporation
Attorneys at Law
3 1430 Truxtun Avenue, Suite 900
Bakersfield, CA 93301
4 (661) 322-6023
Fax: (661) 322-3508
5
Attorneys for Defendant, CITY OF BAKERSFIELD
6

7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN

8 UNLIMITED CIVIL — METROPOLITAN DIVISION
9 ***

10 FIRST AMENDMENT COALITION and Case No.: BCV-17-102929 SDS

CALIFORNIANS AWARE, THE CENTER FOR Complaint filed: 12/21/2017
11 PUBLIC FORUM RIGHTS, Trial Date: Not set
12 Petitioners/Plaintiffs, DECLARATION OF VIRGINIA GENNARO
TENDERED IN OPPOSITION TO MOTION
13 VS. FOR WRIT OF MANDATE, INJUNCTIVE,
AND DECLARATORY RELIEF FOR
14 CITY OF BAKERSFIELD, VIOLATIONS OF THE RALPH M. BROWN
ACT; CALIFORNIA PUBLIC RECORDS ACT;
15 Respondent/Defendant, AND CALIFORNIA CONSTITUTION, ART. I
SEC. 3(B)
16
DATE: December 13, 2019
17 TIME: 8:30 a.m.
DEPT: 10
18
19 I, Virginia Gennaro, hereby declare as follows:
20 1. I am an attorney at law licensed to practice before all courts in the State of California. I
21 am the City Attorney for the City of Bakersfield at this time and I have held this position since
22 November 2003. I am providing this Declaration in support of the City of Bakersfield's Opposition to
23 the Petitioner's/Plaintiff s Motion For Writ of Mandate, Injunctive Relief and Declaratory Relief filed
24 herein.
25 2. I have personal knowledge of all the facts set forth herein and if called as a witness in this
26 matter could and would competently testify as to the matters set forth below.
27 3. In my role as City Attorney I am primarily responsible for advising both the
7R
1
DECLARATION OF VIRGINIA GENNARO TENDERED IN OPPOSITION TO THE MOTION FOR WRIT OF MANDATE,
INJUNCTIVE, AND DECLARATORY RELIEF - BCV-17-102929 SDS
 Bakersfield City Council and the'City of Bakersfield staff on all legal matters. I am required:to offer
2 legal 'opinions, analysis- and. advice on. matters which may impact the City and its governmental
.3 operations. In order to hilly and fairly provide analysis, advice and legal counsel to •tlie:City Manager
4 and emplbyees;as well as the governing City Council, it Is necessary that. I be proVide.d with
5 information. that is. relevant to the advice. being solicited from my office and in my role .as.the Attorney
6 for the City. Of necessity,.and in accordance Withthe provisions of California Evidence Code Section
7 954 and California Business and ProfeSsionS.Cede Secti:ons:6068, and California Rules of Professional
8 Conduct, all infonnatiOnconveyed to me by.a client in the process ofseeking legal advice is,. and must
9 be, considered privileged.
311 4. In my role as City Attorney, and based upon My own experience;training, and research
1.1 I am familiar with-the provisions of the statutory scheme of open government set forth at Government
.12 Code Section 54950. et. seq,,. which is' more commonly. referred to as the. "Brown .Act." I am
13:.knowledgeable. as to what matters must be..discussed in open 'session at. a-ditty convened. Meeting of the

14. City Council; and:what type of matters can he conducted inclosed session.
15 5. 1, along Witlithe, Bakersfield City Manager and his primary :assistants, am responsible
1.6. for informing members of the' City Council as to. a wide variety of different matters 'arising in the
17 context of the Brown. Act, including, but not limited to: .('a) the rules governing 'what ritust be discussed
18' only at duly convened and. properly noticed open Meetings; (6).what they cannot :do outside of duly.
19' noticed and convened. meetings; (e) hoW they can communicate between themselves, with their
20 constituents, and With other third parties about matters relating to governance of the City and its' civic
,71 operation's; (d) how they can solicit; :discuss and receive legal 'advice on legally related matters
22 confronting the City:. and, (6) how matters' must be placed 'on the closed session agenda priOr. to
23 discussion atiSefiedifled. regular City Council meetings'nd those rneetingS conductedby. different City
24 committees-0r boards.
.25. 6. City Council members are provided 'training 'and. counseling from thiS 'office on the.
26- :different provisions;requirements and effect of:the. Brown-Act by 'my officel.City Council members;
.27 'as well as thos.e individuals' who serve On :City Boards, Conimissions 'and Corinnittees„.. are also
2it
2
DECLARA'T'ION OP VIRGINIA OENNAIW TENDERED 'IN OPPO SITION TO TITIE MOTION FOR WRIT.OF. MANDATE,
'NJUNCTIVE, AND DECLARATORY4ZELIEF - Bev-0402'929 SDS
 encouraged to attend outside training activities and presentations. on these. matters, including
2 presentations .hy the California League ofCities 'on the Brown..Act;including its .history, baekground,
intent;, purpose; scope, and day to daypractical applications and requirements. All inembers.-of the City
4 Council :arc thuS acutely aware Of Their obligations under and pursuant to the Brown Act. Based upon
my personal experience, observations, encounters. and counseling provided, the City Council actively
6 adheres to. and observes. all of the requisite.elements,and provisions of the Brown .Act.
7 7. Of significance to the pending litigation, and in 'recognition Of the spirit and intent of
8 the Brov:vn Act,. on August 15, '201:2 .the-Bakersfield City Council passed a "Resolution Adopting 'a
9 City POlicy to. Adhere. to the .Brown Act Despite the Decision 'to Suspend Some Of Its Provisions For
10 *Three Years." This. Resolution was crafted by My office atthe 'direction of'City Staff and members of
11 the 'City Council in Order to. assure the public that the City of Bakersfield. was committed to open and
12 transparent goverrianc.ein.all its operations.
13 8. In connection with the matter now pending before. this Cotift, I was responsible, for
14 preparation ofthe closed. session agenda iterns for the salieduled and duly noticed City Council Closed
15 Session Meetings hel.4 on .July' 1:9; September 6, 2017 and September. 20, 20.17, On the closed.
16 .session :agenda: for each: meeting there is a specific reference to matters: which were to. be. heard in
1.7 Closed. Session. These include: specifies:matters noted on the Closed Session Agenda for July 19; 2017
Under CloSed Session lien). 4.e..; on the' Agenda' for September 6, 2017 under.Closed Session hen' 4.b.;'
19. :and, on the Agenda for September 20, 2017 under Closed Session Item .4.b„:(hereinafter "Meeting or
'20 Meetings") Each of these specific: instances were .properly noticed as occurring pursuant to
.21 .Government Cede Section 549:56.9(d)(2) and (e)(1) 'as well as consistent -with the provisions of
'92 Sections 54952.2 and 54.954.5. It was my legal *opinion and advice that theSematters be listed '0 one
23' which, at that particular point in time: and based 'upon the existing circumstances, the City faced
24 significant exposure. 'to litigation, and 'that such. circumstances. were not yet known to the.adverse
'25. parties*. City Staff to inform the City Council.::of these matters, and have my. office provide legal
.26 advice and 'counsel to the city Council on stich. matters. Because of *these eircimistances the "natters
27 Were. listed:as "potential litigation," Each time, the 'matter was duly noticed for. discussion in closed

.3
DEOLARAPONOF VIRGIN IA..GENNARO TENpERER IN OPPOSITION TaTI)E MOTION FOR WRIT OF MANDATE,
.INJUNCTIVE.ANO DECLARATORY RELIE:',17:- BCV- 17.1 0292§.S
 Session 6:insistent with the express statutory language and provisions of 'Government Code. Section
2 54956:9 subsections (d)(2). and (OW, The language, I utilized was also in 'strict compliance with the
3 provisiOns.of Government Code Section 54954.5 and was selected to ensure, that the noticed items fell
4 within the safe harbor provisions of that statutory provision,
5 9. ;Prior to the start of each cloSed .session, .consistent With statutory and decisional law;
6 the' City Clerk verbally announces the matters to. be discussed in clOsed session by reading off the
7 specific agenda 'items. At the. conclusion of the. closed *session the 'City COuncil reconvenes in open
8 session arid any votesandactions whichmay have been taken is announced. While.theseprocedure.s are
9 religiously adhered to in each instance that 'there are .closed session discussions, I can specifically
1.0 confirm that .the 'agenda. items for, each. Meeting now in question was announced 'prior to going into
11 cloSed session, and following 'the conclusion of each cloSed session Meeting an arthbunceinerit was
made.that no action had been taken. an any of the. items ..set forth on the agenda for each. Meeting.
13 10. The purpose of'.the .closed session Meetings was to discuss. facts and circumstances

14 „related to the significant exposure of litigation which the City understood it-Was facing, and Seek tegal
15 adVice and counsel from' my office on What actions '.could' or should be taken. In 'order to secure. that.
16 .advice, it was necessary *to make a. shell presentation. of pertinent facts:which. were involved in the
17 subject litigation exposure; That 'information is itself privileged:
18 11. It is currently unethical,. if not impossible to reveal the:exact content of.the cliseusSionS
19' held With me 'as legal counsel for the City and the City CounCii during the 'three cloSed 'session

20 'Meetings which are the subject. of .this pOnding matter without naming afoul. of the.Attorney-Client
21 privilege. Absent a waiver 'of the privilege, ..which . the.City Council will consider on 'December 11,:
22 261.9,i can offer the observation that the Matters which were potentially under consideration
')3 have included,, but were not limited -CO, the initiation of potential 'Bankruptcy protection; labor
24. .negotiations and/or eniployed terminations/layoffs with resulting 'litigation; 'and potential options for
25. legislative actions via a:public vote which would have. involved the legal Challenges' of undertaking:
26 sudh a course of action,
27 12. I would also note and attest, as. is: expressly confirmed in the -minutes. ofthe City for
25
'4
DECLARATION OF GENNARO TENDERED. IN OPPOSITION TO THE MOTION FOR.WRJ OF MANDATE;
. 1NJONCTI/EiANi).DEOLAkATOO RELIEF - BCV- 17-162029 SOS
 1 each of'the: Meetings in questions as to the subject closed session agenda'iterns that are the subjectof
this pending 'fitigation,..theCity Council undertook na action. as result of anv Weil discussions held
3
pursuant to the.'noticed matters.With no action being, taketi,Ahere is no action which can be reversed..
4 :13. Given the singular nature 'of the disCuSSions 'referenced in the 'closed .session agendas
5 fOr July 19,.2..017,. September 6,..201.7,. and September 20,..2017, all of which involved solicitation of
6 legal advice. on matters related to existing facts and ,circumstance that presented the City with a
7 significant risk of ekpbstire 'to litigation, ,and that these litigation circumstances which the: City
8 believed the involved parties and . entitiess were nOt yet aware. of I sanctioned the. listing of these
9 matters on the Closed Session Agenda and properly disclosed the reasons forth& discussion in.express
10 compliance with the provisions .of. Government Code Section 54954.5 and. 54056.9 Subsections .(4)(2)
11 and (e).(1). The Wording of these sections expressly alloWs for the fact that where the existingfacts and
12 circumstances fit. within the *visit:ins of Section 54956:9(4)(2') -and (e)(1) the "facts and
13 :circumstances need not be. d iSclos ed."
14 14. .1 'can also attest to the fact that there. has' been no past 'practice, nor 'has there been a
continuing practice by the. City' of 'concealing .matters. 'for diSeussion pursuant to the provisions. of
16 Government Code Section 54950.9 and its subsections. (d) and (e). Only 'when a matter .arises that
17 clearly fits• within the description: Of 'these subsectionS,. to, 'wit, that which involves a 'significant
18 exposure to litigation involving. the City[(:d)(2)], and where the facts are not yet known to the.potential
19 plaintiff(s) exisq(e)(111,. is this 'section invoked.
20 15. With 'respect ..to the issues raised by the. plaintiffs/petitioners in connection with their.
21 yequest for public records, at the. time the 'request was made: 'the City timely responded with the
22 pro.ductiOn,of all non-privileged. rnatetials.that were covered in the. subject requests,
23 16.. The City has in plaCe policies and procedures which. address the fact' that the City will
24 willingly comply:With such requests and the manner.in whiCh the.requests will be processed, handled,
25 and in turn a yesponse will be made and docunient.s, which exist and are not otherwise • subject to'
26 protection or privilege;will be produced. These, policies. and' processes were followed in .response to
27 the subject requests .at issue in.his matter. -

2.8
5
DECLARATEON OF VIR(111\1)4 CiliNNARO TENDERED INOPFOSITION TO:THE MOTION FOR WRIT- OrMANDATF:,
INJLINCtIVE, ANODECLARKFOItY RELIEF - TICV-I 74 029iq SOS
 17. It is signifiearit to note...that given that the City .believed, and actually was in compliance
with the proviSions of the Brown Actin connection with the matters that form the basis for the instant
action, the discloSure of the information. communicated to its attorneyS for pbrposeS.of legal ,advice
4 should never haVe.been in the. handS of anyone who Was.not in .Attendance at the subject closed session
5 meetings. Any release.of this.information would have been, and was in violation Of Government Code.
6 Section 54963,
7 IS, Thus, while..PlaintiffSiPetitioners have not specified exactly what was not produced in..
8 resporiSe their'request for .record.s. and documents in this motion, focusing on general assertions and
9 suppositions that items were not and have not been produced, thefact.that they were in possession of
1.0 materials that .expressly barred from. diSclostire under the 'expresS provisions of Section 54963 did
11 not waive: any arid all applicable privileges and protections for such. material.
12. 19.. 'Accordingly,. when the City was.;responding to. the initial request for documents .any
13 office determined that it was not. obligated to produde. the 'presentation slides 'and doeurneritS Which.
14 comprised 'the subject 'matter of: the materials which. were addresSed in Plaintiff s/Petiticiner'S letters.
15 dated. Oetdber .18, 2017. Moreover,. as noted in correspondence to. the Plaintiff, First Amendment.
16 Coalition it, was already in possession of stabil materials; in violation .oftite applicable law.
17 20. With regard 'to other materials that Were subsequently produced in the course of
18 litigation,..including Mr. Fluot's.October 5, 201'7 email, that email was considered to alSo fall within
19 the pratections..of Section .54965 and is otherwise..subject to :attorney-client privilege as it was.sent to
20 the City Attorney's office and staff, with attachments that were, themselves privileged. Thaemail. was'
21 duly produced after the court ordered production of certain.documentS and the issues addressed in: the
22 Request for Production were resolved by the' Court..
23 '21. The only' documents 'which exist responsive to Plaintiff s/Petitioner's Public Records
24 Request consist of my own handwritten. notes taken at the time of the closed .session..discussions held
25 by the City Coun.cil .o.n July 19, 2017, September 6, 2017 and September 20,:20.17.. These are protected
26 by both attorney-client privilege and attorney work :product privilege. They contairitnyobservations,
27 comments and reflections upon: the. legal advice prOvided to the City Council and City staff on. the
78
.6
DE.CLAR AWN VIRGINIA GEINA go TINDER D IN Q I'I'OSI'rION 1.Q THE.MOT ION. Fog. WRIT (*.NI AN nivrE:,:
INJUNCTIW., AN b DECIARMDRY RELIF.F w 110/- I7 -1'02929 SOS
 1 matters under consideration.

22. Plaintiff s/Petitioner's moving papers seemingly suggest that the City has failed to look

3 for, locate and produce other documents. They have not specified what these other documents may be,

4 or what was contained with any such documents. Having said that, there are no other documents to

5 produce. A thorough and diligent search was undertaken to produce the requested documents, both in

6 connection with the Public Records requests and in connection with the Request for Production of

7 Documents that was served and responded to in due course during the course of this ongoing litigation.

8 All documents which were located have been produced, and this circumstance was attested to by

9 authorized representative of the City via verifications and correspondence.

10 I declare under penalty of perjury, under the laws of the State of California that the foregoing is

11 true and correct.

12 This Declaration is executed on this day of November, 2019 in Bakersfield California.

13

14
( VIRGINIA GENNARO
15

16

17

18

19

20

21

22

24

25

26

27

7
DECLARATION OF VIRGINIA GENNARO TENDERED IN OPPOSITION TO THE MOTION FOR WRIT OF MANDATE,
INJuNcrwE, AND DECLARATORY RELIEF 11CV-17-102929 SDS
 1 PROOF OF SERVICE (C.C.P. &1013, 2015.5)
First Amendment Coalition and Californians Aware v. City of Bakersfield
2 (Kern County Superior Court Case No. BCV-17-102929 SDS)
3 At the time of service I was over 18 years of age and not a party to this action. I am
resident or employed in the county where the mailing occurred. My business address is 143
4 Truxtun Avenue, Bakersfield, California 93301.
5 On November ao,2019, I served the following documents: RESPONDENT'S
OPPOSITION TO MOTION FOR WRIT OF MANDATE, INJUNCTIVE, AND
6
DECLARATORY RELIEF FOR VIOLATIONS OF THE RALPH M. BROWN ACT
7 CALIFORNIA PUBLIC RECORDS ACT, AND CALIFORNIA CONSTITUTION
ARTICLE I, SECTION 3(b); DECLARATIONS OF VIRGINIA GENNARO AND CHRI
8 HUOT IN SUPPORT OF OPPOSITION on the persons below as follows:
9
PLEASE SEE PROOF OF SERVICE LIST BELOW
10
BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope or packag
11 addressed to the persons at the addresses listed below: I placed the envelope for collectio
and mailing, following our ordinary business practices. I am "readily familiar" with thi
12 business's practice for collecting and processing correspondence for mailing. On the sam
day that correspondence is placed for collection and mailing, it is deposed in the ordin
13 course of business with the United States Postal Service, in a sealed envelope with postag
fully prepaid. .
14
By FAX TRANSMISSION
15
X BY E-MAIL OR ELECTRONIC TRANSMISSION. Based on a court order or
16 agreement of the parties to accept service by e-mail or electronic transmission, I caused th
documents to be sent to the persons at the e-mail addresses listed below. I did not receive
17 within a reasonable time after the transmission, any electronic message or other indicatio
that the transmission was unsuccessful.
18
19 XBY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or packag
provided by the overnight delivery carrier and addressed to the persons at the addresse
20 listed on this Proof of Service. I placed the envelope or package for collection and overnigh
delivery at an office or a regularly utilized drop box of the overnight delivery carrier;
21
BY PERSONAL SERVICE. I caused such envelope to be hand delivered to the offices o
22 the addressee(s).
23 Executed on November off,2019, at Bakersfield, California.
24 X (State) I declare under penalty of perjury under the laws of the State of Californi
that the above is true and correct.
25
(Federal) I declare that I am employed in the office of a member of the Bar of thi
26 Court at whose direction the service was made.
27
28
 1 PROOF OF SERVICE LIST
2
Kelly A. Aviles
3 Law Offices of Kelly Aviles
1502 Foothill Blvd., #103-140
4
La Verne, CA 91750
5 (909) 991-7560
fax: (909) 991-7594
6 kaviles@opengovlaw.corn
7
8 David Snyder
534 Fourth Street, Suite B
9 San Rafael, CA 94901
(415) 460-5060
10
fax: (415) 460-5155
11 dsnycier@firstamendmentcoalition.org,

12
13 Joseph T. Franke
2218 Homewood Way
14 Carmichael, CA 95608
(916) 487-7000
15 fax: (916) 487-7999
16 terry@calaware.org

17
18
7580-62
19
20
21
22
23
24
25
26
27
28