Filed 3/9/21 Ryan v. City of Roseville CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
RICHARD RYAN et al., C090903
Plaintiffs and Appellants, (Super. Ct. No. SCV0041974)
v.
CITY OF ROSEVILLE et al.,
Defendants and Respondents.
Plaintiffs Richard and David Ryan appeal from a judgment of dismissal after the
trial court sustained the City of Roseville’s and University Development Foundation’s
demurrers to their third amended petition for writ of mandate and complaint without
leave to amend. Plaintiffs argue the trial court erred in dismissing their second and fourth
causes of action with prejudice. Plaintiffs have failed to demonstrate any error.
Accordingly, we will affirm the judgment.
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I. BACKGROUND
The operative petition for writ of mandate and complaint purports to state four
causes of action against the City. The fourth cause of action was also asserted against
University Development Foundation. The City demurred to the entire complaint on the
ground that it failed to state facts sufficient to constitute a cause of action. (Code Civ.
Proc., § 430.10, subd. (e).) University Development Foundation demurred to the fourth
cause of action on the same ground. The City also demurred to the second cause of
action on the grounds that it was uncertain, ambiguous, and unintelligible. (Id., subd.
(f).)
The court sustained both demurrers based on the failure to state facts sufficient to
constitute a cause of action. The court explained “[t]he allegations within the [third
amended complaint] are rambling, vague, and conclusory” and “insufficient to support
any of the causes of action, even when the pleading is given the broadest of readings.”
The court stated that, at the hearing, “plaintiffs focused their argument on the fourth
cause of action, thereby virtually conceding the merits of [the City]’s demurrer to any
other causes of action.” The court sustained the demurrers without leave to amend. The
court indicated plaintiffs had conceded a cause of action could not be maintained against
University Development Foundation. Additionally, “plaintiffs essentially stood on the
sufficiency of their pleading and did not request leave to amend. Plaintiffs have failed to
make a sufficient showing as to how they could remedy the numerous defects” in the
operative pleading.
The court entered a judgment of dismissal with prejudice. Plaintiffs filed an
appeal from the judgment.
II. DISCUSSION
A. Standard of Review
“It is well established that a demurrer tests the legal sufficiency of the complaint.
[Citations.] On appeal from a dismissal entered after an order sustaining a demurrer, we
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review the order de novo, exercising our independent judgment about whether the
petition states a cause of action as a matter of law. [Citations.] We give the petition a
reasonable interpretation, reading it as a whole and viewing its parts in context.
[Citations.] We deem to be true all material facts that were properly pled. [Citation.]
We must also accept as true those facts that may be implied or inferred from those
expressly alleged. [Citation.] We may also consider matters that may be judicially
noticed, but do not accept contentions, deductions or conclusions of fact or law.” (City of
Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861,
869-870; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“If the court sustained the demurrer without leave to amend, as here, we must
decide whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. [Citation.] If we find that an amendment could cure the defect, we conclude
that the trial court abused its discretion and we reverse; if not, no abuse of discretion has
occurred. [Citation.] The plaintiff has the burden of proving that an amendment would
cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Even under de novo review, orders and judgments are presumed to be correct, and
the appellant must affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) “To demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that support the
claim of error. [Citations.] When a point is asserted without argument and authority for
the proposition, ‘it is deemed to be without foundation and requires no discussion by the
reviewing court.’ [Citations.] Hence, conclusory claims of error will fail.” (In re S.C.
(2006) 138 Cal.App.4th 396, 408.) With respect to citations to the record, the appellant
must “[s]upport any reference to a matter in the record by a citation to the volume and
page number of the record where the matter appears. If any part of the record is
submitted in an electronic format, citations to that part must identify, with the same
specificity required for the printed record, the place in the record where the matter
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appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) “If a party fails to
support an argument with the necessary citations to the record, that portion of the brief
may be stricken and the argument deemed to have been waived.” (Duarte v. Chino
Community Hospital (1999) 72 Cal.App.4th 849, 856.) Plaintiffs’ opening brief referred
to what we determined to be paragraphs in their complaint, but did not offer a single
citation to a page in their appendix or the reporter’s transcript where the complaint or any
other relevant information could be found. “ ‘The reviewing court is not required to
make an independent, unassisted study of the record in search of error or grounds to
support the judgment.’ ” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
Additionally, any arguments raised or only supported by authority on reply have been
waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)1
On appeal, plaintiffs argue [,]the trial court erred by sustaining the demurrers to
the second and fourth causes of action without leave to amend. Despite plaintiffs’ failure
to offer adequate citations to the record to present these issues, but keeping in mind the
above principles, we will discuss these causes of action briefly.
B. Public Records Act
Plaintiffs’ second cause of action purports to be a petition for writ of mandate
based on a violation of the California Public Records Act. (Gov. Code, § 6250 et seq.)2
1 Defendants submitted a joint objection to plaintiffs’ reply brief, arguing that the belated
reply brief improperly raised arguments not asserted in the opening brief (or in the trial
court) and did not even attempt to show good cause for failing to present them earlier.
Defendants requested that we disregard the reply brief and, in particular, the points
asserted for the first time on reply. While we have not stricken the brief entirely, we have
not considered any points that were raised for the first time on reply. (High Sierra Rural
Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111, fn. 2.)
2 Undesignated statutory references are to the Government Code.
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Plaintiffs’ opening brief refers to the following factual allegations contained in their
complaint:
“11. . . . [C]urrent and former members of the [city] council and some city staff
use private electronic communication (collectively referred to as ‘emails’) for [city-
] related business.
“12. [Richard Ryan] has made [Public Records Act] requests that specifically
requested these private electronic communications.
“13. . . . [Richard Ryan] alleges that these private emails have [n]ot been
provided. That the use of private emails has intentionally been the practice for the
purpose of removing these emails from public records and [Public Records Act]
disclosure. That there have been a great number of such emails that have not been
disclosed, including the responses to requests made on 1/2/18 requesting the city council
members provide private emails with AKT [Group] (and related companies), Warwick
University and [University Development Foundation].
“14. That if the private email communications had been conducted on [City]
email accounts, they would have been discoverable by staff conducting [Public Records
Act] responses.”
Plaintiffs also alleged emails on city email accounts “are routinely purged” and
“public record emails conducted on private servers are not routinely turned over to the
City for preservation as public records.”
Plaintiffs requested various forms of relief based on these allegations, including a
declaration pursuant to Code of Civil Procedure section 1060 that private emails, when
used for City business, are public records. Plaintiffs also sought a writ requiring the
production of private emails and other electronic communications used by city council
members, commission members, and staff pertaining to City business. Additionally,
plaintiffs requested an order prohibiting the City from purging or deleting public record
emails. Plaintiffs requested “that all private emails containing [city] business be, as soon
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as possible after creation, delivered to the City and that the [City] permanently maintain
these emails as public records.”
In demurring to Ryan’s complaint, the City of Roseville argued the second cause
of action did not allege a controversy under the Public Records Act. The City argued that
while it had a duty to disclose public records, it was only required to retain records for at
most two years. (§ 34090, subd. (d).) The City argued plaintiffs “only identify one
[Public Records Act] request [Richard] Ryan made on January 2, 2018[,] but fail to allege
the City improperly withheld records or failed to conduct a reasonable search in response
to this request.” The City argued the cause of action was vague and uncertain because it
did not allege any reasonably focused or specific request and the purported deficiencies
with the response. The City also argued no controversy exists because, under an
administrative regulation, the City already treats private emails about City business as
public records. The City requested judicial notice of this regulation. In their opposing
brief, plaintiffs did not refer to any specific Public Records Act request or seek leave to
amend.
The court granted the City’s request for judicial notice and sustained the City’s
demurrer on the ground that the complaint did not state facts sufficient to constitute a
cause of action.3 (Code Civ. Proc., § 430.10, subd. (e).) The court added that the
allegations in the complaint were “rambling, vague, and conclusory” and, as relevant
here, failed to specifically identify the actions taken.
Public records are open to inspection and every person has a right to inspect every
public record, subject to certain exceptions. (§ 6253, subd. (a).) As long as there is no
3 We deferred ruling on the request for judicial notice filed by the City in this appeal,
and now take notice of the referenced administrative regulations and portions of the
Roseville City Charter. We deny the motion with respect to the other items as
unnecessary to the issues before us. Nonetheless, we will observe that plaintiffs have not
asserted that the trial court erred in taking judicial notice of any of the overlapping items.
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exemption from disclosure, if a person makes a request that “reasonably describes an
identifiable record or records,” those records are to be made promptly available. (Id.,
subd. (b).)
“The [Public Records] Act sets forth specific procedures for seeking a judicial
determination of a public agency’s obligation to disclose records in the event the agency
denies a request by a member of the public. ‘Any person may institute proceedings for
injunctive or declarative relief or writ of mandate in any court of competent jurisdiction
to enforce his or her right to inspect or to receive a copy of any public record or class of
public records under [the Act].’ (§ 6258.) . . . [¶] . . . If it appears from the plaintiff’s
verified petition that ‘certain public records are being improperly withheld from a
member of the public,’ the court must order the individual withholding the records to
disclose them or to show cause why he or she should not do so. (§ 6259, subd. (a).)”
(Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426.)
To the extent we have overlooked plaintiffs’ forfeiture of the issue, we must
conclude their petition made no such showing. As the City notes, the petition is vague as
to the requests that were made. To the extent the petition suggests one specific request
was made for city council members to provide emails with certain entities, plaintiffs did
not specify who this request was made to or what response was provided. On appeal, to
support the suggestion that they stated a claim under the Public Records Act, plaintiffs
rely almost entirely on City of San Jose v. Superior Court (2017) 2 Cal.5th 608, in which
our Supreme Court held that “when a city employee uses a personal account to
communicate about the conduct of public business, the writings may be subject to
disclosure under the California Public Records Act.” (Id. at p. 614.) In that action, the
city “claimed all communications in personal accounts are beyond the reach of the
[Act].” (Id. at p. 618.) Here, the City makes no such claim. Rather, it asserts it follows
the rule articulated in City of San Jose. And plaintiffs’ second cause of action does not
allege the City nonetheless claimed that personal email accounts were beyond the reach
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of the Public Records Act as a basis to avoid producing documents responsive to a proper
request.
Additionally, “[t]he court’s order either directing disclosure by a public official or
supporting the decision to refuse disclosure ‘is not a final judgment or order within the
meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be
taken, but shall be immediately reviewable by petition to the appellate court for the
issuance of an extraordinary writ’ filed within 20 days after service of the notice of entry
of the order, or within an additional 20 days as the trial court may allow for good cause.
(§ 6259, subd. (c).)” (Filarsky v. Superior Court, supra, 28 Cal.4th at p. 426.) Plaintiffs’
appeal was filed more than 40 days after the notice of entry of judgment was served in
this case. Thus, even if we were inclined to overlook their forfeiture of the issue, it
appears we lack jurisdiction to address the trial court’s order to the extent it supported a
decision to refuse to disclose. (MinCal Consumer Law Group v. Carlsbad Police Dept.
(2013) 214 Cal.App.4th 259, 263-266.)
In sum, plaintiffs have failed to demonstrate any basis for us to reverse the trial
court’s dismissal of their second cause of action with prejudice.
C. Sale of Fire Station
Plaintiffs’ fourth cause of action sought a writ of mandate to set aside the City’s
sale of a fire station to University Development Foundation as an unconstitutional gift of
public property and a violation of due process. Plaintiffs’ opening brief only offers legal
authority to support its assertion that the sale was an unconstitutional gift under article
XVI, section 6 of the California Constitution. As such, to the extent we will overlook the
other issues in their briefing to discuss the fourth cause of action, we will only address
the allegation that the sale violated article XVI, section 6 of the California Constitution.
(See In re S.C., supra, 138 Cal.App.4th at p. 408 [“appellant must present meaningful
legal analysis supported by citations to authority”].) And this argument fails because the
constitutional provision has no application to the City of Roseville, which, plaintiffs do
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not dispute, is a charter city. “By its terms, article XVI, section 6 of the state
Constitution prevents the Legislature from making or authorizing any gift of public funds
for private purposes. This prohibition applies to counties and general law cities.”
(Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 637, superseded by
statute on other grounds; see Cal. Const., art. XVI, § 6 [“The Legislature shall have no
power to . . . make any gift or authorize the making of any gift, of any public money or
thing of value to any individual, municipal or other corporation whatever”].) Simply put,
“[t]he constitutional ban on gifts of public funds does not apply to charter cities.”
(Sturgeon, supra, at p. 637, fn. 5.) This is because the powers of a charter city are not
derived from the Legislature. (Tevis v. City & County of San Francisco (1954) 43 Cal.2d
190, 197; Los Angeles Gas & Elec. Corp. v. City of Los Angeles (1922) 188 Cal. 307,
317.) Therefore, plaintiffs have failed to demonstrate the trial court erred in dismissing
their fourth cause of action.
Plaintiffs have also failed to demonstrate the trial court abused its discretion in
granting the demurrers without leave to amend. In their opening brief, they state that
“[i]f leave to amend were granted, a specific allegation could be made that the Roseville
Charter does not allow for gifts and that the provision relied upon by the City
4.12.110(B) is contrary to the City Charter and is void.” This is a legal conclusion, and it
is unsupported. In particular, plaintiffs cite nothing in Roseville’s charter to support their
argument. As such, they have failed to demonstrate an amendment would cure the
defects in their pleading.
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III. DISPOSITION
The judgment is affirmed. The City of Roseville and University Development
Foundation shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &
(2).)
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
KRAUSE, J.
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