Opinion
A146220
06-21-2017
BAYVIEW HUNTERS POINT ARTS COUNCIL, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-14-537865)
Bayview Hunters Point Arts Council (plaintiff) appeals after the trial court granted the motion for summary judgment of the City and County of San Francisco (defendant or City) in this action arising from the San Francisco Arts Commission's alleged violation of the San Francisco Sunshine Ordinance (S.F. Admin. Code, § 67.1 et seq.), which requires that "[a]ll meetings of any policy body shall be open and public." (§ 67.5.) On appeal, plaintiff contends there are triable issues of material fact regarding whether the Arts Commission violated section 67.5 when it failed to provide advance notice of and allow public comment at a June 25, 2013 meeting of a review panel at which recipients of an arts grant were purportedly selected because the panel was a "policy body" created "by the initiative of the Arts Commission, pursuant to section 67.3(d)(4), which means it was subject to section 67.5's open meeting requirements. In a novel argument, plaintiff also asserts that an employee of the City acted as an agent for the Arts Commission when she created the review panel, which should therefore be considered to have been created "by the initiative of" the Arts Commission, pursuant to section 67.3(d)(4). Plaintiff also argues, in the alternative, that the review panel meeting should have been open and publicly noticed under because it was "created by a . . . grant," pursuant to section 67.3(d)(7). We shall affirm the judgment.
All further statutory references are to the San Francisco Administrative Code, unless otherwise indicated.
FACTUAL BACKGROUND
The Arts Commission, which was established by the San Francisco Charter (see S.F. Charter, §§ 5.100, 5.103), has 16 members and meets regularly in meetings that are open to the public, are noticed in advance, and provide an opportunity for public comment.
In 2013, the San Francisco Public Utilities Commission (SFPUC) vested the Arts Commission with the responsibility for awarding $100,000 in SFPUC funding—with a maximum individual grant amount of $10,000—as part of a grants program entitled "Community Arts in the Bayview ([CABV]): Pilot Grants Program" (grants program), which was intended to support arts engagement in the Bayview Hunters Point neighborhood. The grants program was described in written guidelines as follows: "With funding from the SFPUC, [the Arts Commission's] Community Arts and Education Program is investing in the Bayview Hunters Point neighborhood with innovative arts programs that support the core values of the SFPUC and promote community engagement. . . ." The written guidelines further stated: "Grantees will be selected through a peer review process. A panel comprised of representatives from the [Arts Commission], the SFPUC, and the Bayview community will review the proposals based on" listed criteria. The guidelines stated that the Community Arts, Education and Grants Committee (Community Arts Committee) review would take place on July 9, and the full Arts Commission review would take place on August 5.
The guidelines did not list the date on which the review panel would meet.
Judy Nemzoff, an employee of the City, was the Community Arts and Education Program director for the Arts Commission in 2013, and was responsible for administering the grants program. Nemzoff and her staff wrote the grants program guidelines, which they then posted on the Arts Commission website. They also conducted extensive outreach in the community to ensure that all communities and organizations serving the Bayview Hunters Point neighborhood would learn about the grant opportunities. By the June 17 application deadline, the Arts Commission had received 23 applications for the 10 available grants.
Nemzoff was not a commissioner of the Arts Commission. Her duties as a staff member for the Arts Commission involved the following: "Supervise, direct, negotiate and monitor all [community arts and education] programs in content, budget, policy and procedures including any and all long range planning, supervise program managers, program associates, interns, all contractors, teaching artists and consultants. Manage 4.7 million [dollar] annual program budget and real estate investments valued at $80,000,000."
To review the applications, Nemzoff, in consultation with Robynn Takayama, also a City employee and program manager of the Arts Commission's Community Arts and Education Program, created a review panel comprised of representatives from the SFPUC, the arts community, and the Bayview community. On June 25, 2013, the review panel met at the Arts Commission's offices to discuss and score each grant application, without providing advance notice or allowing an opportunity for public comment. After the meeting, the review panel sent its scoring of applications and recommendations as to which applicants it believed should receive the grants to the Community Arts Committee, a subcommittee of the Arts Commission.
On July 9, 2013, the Community Arts Committee held a public meeting at which Nemzoff gave a presentation on the applicants for the grants program and the review panel's recommendations for the 10 recipients. At the conclusion of the presentation, the Community Arts Committee unanimously approved the panel's recommendations. At a September 9 public meeting, the full Arts Commission adopted the Community Arts Committee's approval of the panel's recommendations.
Plaintiff, an unincorporated association based in the Bayview/Hunters Point neighborhood, consists of three arts groups—Our Father's SLE/Clean Lounge, Castle of Dreams, and Bayview Repertory Theater—that are based in Bayview/Hunters Point. Each of these arts groups, which at the time of application had a budget of $0, applied for CABV grants. None of the groups received a grant.
PROCEDURAL BACKGROUND
On July 16, 2014, plaintiff filed a second amended complaint for injunctive relief, which contained a single cause of action under section 67.5, alleging that defendant was required to provide public notice and allow public comment at the June 25, 2013 review panel meeting. Plaintiff sought an injunction "to enjoin the Arts Commission from conducting closed-door policy body meetings in the future" and declaratory relief "declaring that (1) a selection panel meeting is a policy body meeting and (2) the Arts Commission violated [section 67.5], which requires all meetings of a policy body be open and public."
Plaintiff had previously filed its original complaint against defendant on March 7, 2014, and a first amended complaint on June 17, 2014.
On April 10, 2015, defendant moved for summary judgment on the ground that the review panel was not a policy body under section 67.5.
On July 14, 2015, the trial court granted defendant's motion for summary judgment. The court found: "Plaintiff's sole cause of action fails because the review panel is not a policy body, or a body created 'by the initiative of a policy body.' ([] §§ 67.3(d)(4), 67.5.) The undisputed evidence demonstrates that the review panel was not created by the initiative of the Arts Commission, but rather was created by Judy Nemzoff, an employee of the City and County of San Francisco. [Citation.] The undisputed evidence demonstrates that Ms. Nemzoff is not an agent of the Arts Commission, and did not create the review panel as an agent of the Arts Commission. [Citation.] There also is no evidence in the record supporting plaintiff's assertion that the Arts Commission ratified Ms. Nemzoff's creation of the review panel. [Citation.] Finally, the undisputed evidence demonstrates that the review panel was not created 'by a federal, State, or local grant.' ([] § 67.3(d)(7); citation.) [¶] Accordingly, the review panel is not a policy body, and the City was not required to provide advance notice of the meeting, or provide an opportunity for public comment."
On September 10, 2015, plaintiff filed a notice of appeal.
DISCUSSION
I. Summary Judgment Rules and Standard of Review
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code of Civ. Proc., § 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-853 (Aguilar).) " 'The plaintiff . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. ([p])(2).)" (Aguilar, at p. 849; accord, Chaffee v. San Francisco Library Commission (2004) 115 Cal.App.4th 461, 466 (Chaffee).)
" ' "[W]e take the facts from the record that was before the trial court when it ruled on that motion," ' and ' " ' "review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' " ' [Citations.] In addition, we ' "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' [Citation.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
II. Applicability of The Sunshine Ordinance's Open Meeting
Requirements to the Review Panel's Meeting
The Sunshine Ordinance, enacted in 1993 and subsequently amended in 1999, is based on the principle that "[g]overnment's duty is to serve the public, reaching its decisions in full view of the public." (§ 67.1, subd. (a); see Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165, 1170.) Section 67.5 provides: "All meetings of any policy body shall be open and public, and governed by the provisions of the Ralph M. Brown Act (Government Code Sections 5495 et seq.) [(Brown Act)] and of this Article. In case of inconsistent requirements under the Brown Act and this Article, the requirement which would result in greater or more expedited public access shall apply."
Section 67.1 sets forth the guiding purposes of the Sunshine Ordinance, as follows:
"(a) Government's duty is to serve the public, reaching its decisions in full view of the public.
"(b) Elected officials, commissions, boards, councils and other agencies of the City and County exist to conduct the people's business. The people do not cede to these entities the right to decide what the people should know about the operations of local government.
"(c) Although California has a long tradition of laws designed to protect the public's access to the workings of government, every generation of governmental leaders includes officials who feel more comfortable conducting public business away from the scrutiny of those who elect and employ them. New approaches to government constantly offer public officials additional ways to hide the making of public policy from the public. As government evolves, so must the laws designed to ensure that the process remains visible.
"(d) The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information. Only in rare and unusual circumstances does the public benefit from allowing the business of government to be conducted in secret, and those circumstances should be carefully and narrowly defined to prevent public officials from abusing their authority.
"(e) Public officials who attempt to conduct the public's business in secret should be held accountable for their actions. Only a strong Open Government and Sunshine Ordinance, enforced by a strong Sunshine Ordinance Task Force, can protect the public's interest in open government.
"(f) The people of San Francisco enact these amendments to assure that the people of the City remain in control of the government they have created.
"(g) Private entities and individuals and employees and officials of the City and County of San Francisco have rights to privacy that must be respected. However, when a person or entity is before a policy body or passive meeting body, that person, and the public, has the right to an open and public process."
" '[W]e are mindful that as a remedial statute,' " the San Francisco Sunshine Ordinance, like the Brown Act, " 'should be construed liberally in favor of openness so as to accomplish its purpose and suppress the mischief at which it is directed.' [Citation.]" (McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.App.4th 354, 358.)
In this case, plaintiff contends Nemzoff acted as a "policy body" when she created the review panel, which should therefore be considered to have been created "by the initiative of" the Arts Commission, pursuant to section 67.3(d)(4). Plaintiff further asserts that, to the extent that section 67.3(d)(4) would not otherwise apply in the present circumstances, Nemzoff acted as an agent of the Arts Commission when she created the review panel. Plaintiff also argues, in the alternative, that the review panel meeting should have been open and publicly noticed under section 67.3(d)(7) because the panel was "created by . . . a grant." (§ 67.3(d)(7).)
A. Section 67.3(d)(4)
In determining the meaning of section 67.3(d)(4) of the Sunshine Ordinance, "we are guided by settled principles of statutory interpretation. 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citation.]' [Citation.] To determine this intent, we begin by examining the words of the statute. [Citation.] We must follow the construction that 'comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.' [Citation.] Further, we must read every statute, ' "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." ' [Citations.]" (Chaffee, supra, 115 Cal.App.4th at pp. 467-468.)
Section 67.3(d) of the Sunshine Ordinance defines "Policy Body" for purposes of the requirement that "[a]ll meetings of any policy body shall be open and public." (§ 67.5.) Section 67.3(d) provides in full: " 'Policy Body' shall mean:
"(1) The Board of Supervisors:
"(2) Any other board or commission enumerated in the Charter;
"(3) Any board, commission, committee, or other body created by ordinance or resolution of the Board of Supervisors;
"(4) Any advisory board, commission, committee or body, created by the initiative of a policy body.
"(5) Any standing committee of a policy body irrespective of its composition.
"(6) 'Policy Body' shall not include a committee which consists solely of employees of the City and County of San Francisco, unless such committee was established by Charter or by ordinance or resolution of the Board of Supervisors.
"(7) Any advisory board, commission, committee, or council created by a federal, State, or local grant whose members are appointed by City officials, employees or agents."
Other provisions of the Sunshine Ordinance make clear that not every meeting of City employees, even when related to the work of a commission, should be considered a policy body. Specifically, "Passive meeting body" is defined in section 67.3(c) as, inter alia, "(1) Advisory committees created by the initiative of a member of a policy body, the Mayor, or a department head; [¶] (2) Any group that meets to discuss with or advise the Mayor or any Department Head on fiscal, economic, or policy issues." Under section 67.4 "passive meeting bodies" need not adhere to the same open meeting rules applicable to policy bodies. (§§ 67.3, 67.5.)
In addition, section 67.4 provides in relevant part:
"(a) All gatherings of passive meeting bodies shall be accessible to individuals upon inquiry and to the extent possible consistent with the facilities in which they occur. [¶] . . . [¶]
"(5) Gatherings subject to this subsection include the following: advisory committees or other multimember bodies created in writing or by the initiative of, or otherwise primarily formed or existing to serve as a nongovernmental advisor to, a member of a policy body, the Mayor, the City Administrator, a department head, or any elective officer . . . .
"(6) Gatherings defined in subdivision (5) may hold closed sessions under circumstances allowed by this Article."
1. Applicability of Section 67.3(d)(4) to the Review Panel
In arguing that the review panel constituted a policy body, plaintiff relies on the definition in section 67.3(d)(4), which provides that a policy body includes "[a]ny advisory board, commission, committee or body, created by the initiative of a policy body." With respect to interpreting the phrase, "created by the initiative of a policy body" in section 67.3(d)(4), defendant agrees with plaintiff "that the Sunshine Ordinance does not require that the creation of a policy body occur through a 'formal resolution or vote,' and [that] the 'Arts Commission could create advisory committees by methods other than formal legislative action.' [Citation.]" However, as defendant notes, the record contains no evidence that the Arts Commission took any action at all to create the review panel, and plaintiff does not argue otherwise.
Indeed, in its discovery responses, plaintiff admitted that the review panel was created by staff members, not by the Arts Commission itself.
Therefore, as we shall explain, neither the plain meaning of relevant provisions of the Sunshine Ordinance nor the evidence in the record supports plaintiff's attempt to cast Nemzoff and the review panel as a policy body.
The undisputed evidence shows that Nemzoff, an employee of the City, was responsible for administering the grants program. She created both the review panel— which consisted of representatives from the SFPUC, the arts community, and the Bayview community—and the grant program's guidelines and application documents, "because [she] determined, in [her] sole discretion, that a review panel would be beneficial. The Arts Commission had no involvement in that decision," nor did Nemzoff act on behalf of the Commission in creating the panel. Some applicants for whom, according to defendant, Arts Commission staff had an email address were notified by email six days before the panel met to inform them that they were permitted to attend and listen to the panel discussion, but would not be permitted to make any comments or engage in conversation with panelists, "to avoid the perception of influencing deliberations inappropriately."
The grants program application guidelines contained a section entitled, "Important Dates," which included the date the Community Arts Committee review of applications would take place (July 9, 2013) and the date the full Arts Commission review would take place (August 5, 2013), at which time the grant agreements would be executed.
The date of the meeting at which the full Arts Commission review took place was ultimately delayed by a month, apparently due to the lack of a quorum at the originally scheduled meeting.
The evidence also shows that, at the June 25, 2013 meeting, the review panel discussed and scored the 23 grant applications, ultimately recommending that only the 10 highest scoring applicants receive funding. After the meeting, the review panel sent its scoring and recommendations to the Community Arts Committee for its consideration. In her declaration, Nemzoff stated that on July 9, 2013, the Community Arts Committee "reviewed the grant applications and the recommendations of the review panel at a publicly noticed meeting with an opportunity for public comment."
The July 9, 2013 Community Arts Committee minutes, attached to Nemzoff's declaration, state that "Ms. Nemzoff gave a presentation on the applicants for the . . . grant program. . . . [¶] Ms. Takayama [Nemzoff 's colleague at the Arts Commission], said that staff recognized that it's possible for the arts programming to occur on a volunteer and in-kind basis, so applications from organizations with no operating budget were accepted. [¶] Ms. Nemzoff said that none of the zero-budget applicants were recommended for funding by the grant panel. She added that the grant panelists were looking for quality programs where the applicants had a track record for program execution and grant management capacity." The meeting minutes reflect that Nemzoff and Takayama then answered a commissioner's question about "how the first time applicants might be developed to be more competitive applicants." Another commissioner "observed that there were no grants awarded for music," to which Nemzoff responded that "the grant intent was to fund programs that were about engagement and interaction with the larger community and were not artist commissions." Takayama further noted that one of the organizations that had applied for a grant was "recommended for funding to produce music podcasts and videos . . . ."
The meeting minutes further reflect that, following this discussion, a commissioner moved "to approve panel recommendations to award ten grants totaling $100,000 for the FY2013-2014 cycle of [the] Grant Program to the following organizations, and to authorize the Director of Cultural Affairs to enter into grant agreements with each organization for the amounts listed . . . ." After listing the 10 organizations, which were to receive $10,000 each, the minutes noted that there had been no public comment on the matter and that the motion "was unanimously approved." The minutes also noted that several explanatory pdf documents had been provided to the committee, including "CABV FY2013-2014 Presentation," "CABV applicant rankings," "CABV panel bios," and "CABV summaries."
In her declaration, Nemzoff further stated that on September 9, 2013, the "Arts Commission reviewed the grant applications and the Community Arts [] Committee's recommendations at another publicly noticed meeting with an opportunity for public comment. After considering the recommendations of the review panel and Community Arts [] Committee, the Arts Commission passed a resolution awarding grants to the 10 highest scoring applicants . . . ."
In emails to grantee organizations, Arts Commission program manager Takayama wrote: "An independent review panel of professionals with expertise in the neighborhood and community art carefully evaluated your grant proposal using the criteria established in the guidelines. Recently the Arts Commission approved the awards based on the panel's recommendation."
The minutes from the September 9 public meeting of the full Arts Commission, attached as an exhibit to Nemzoff 's declaration, reflect that the Commission passed resolutions adopting a number of "items from the Consent Calendar and their related resolutions," including the [m]otion to approve the Community Arts [] Committee Meeting Minutes of July 9, 2013." The minutes reflect that there was no public comment on this resolution.
The minutes also reflect that the Arts Commission passed a resolution adopting the "[m]otion to approve panel recommendations to award ten grants" to the recommended organizations, passed on July 10, 2013, by the "Street Artists Committee." Neither party has discussed the relevance, if any, of the Street Artists Committee approval in their briefing.
This undisputed evidence demonstrates that Nemzoff, an employee of the City and a staff member at the Arts Commission, created the review panel without any input from the Arts Commission itself. The panel then reviewed the applications and made recommendations to the Arts Commission as to which applicants it believed should receive grants. The Commission's Community Arts Committee then reviewed and voted to approve the recommendations, and the full Arts Commission subsequently adopted the Community Arts Committee's decision, both at open meetings.
Even assuming the full Commission did not review the panel's recommendations at its September 9, 2013 meeting, but merely approved the minutes from the July 9 Community Arts Committee meeting, the evidence shows that Nemzoff had given a presentation on the applicants for the grants program at the July 9 meeting, and that the Committee reviewed, discussed, and then approved the panel's recommendations. Furthermore, both meetings were noticed, were open to the public, and included an opportunity for public comment.
Thus, because there is no evidence from which a trier of fact could infer that the Arts Commission took any action to create the review panel, the review panel's meeting does not fit the definition of a "policy body" under the plain language of section 67.3(d)(4) because it was not "created by the initiative of a policy body." (§ 67.3(d)(4); see Chaffee, supra, 115 Cal.App.4th at pp. 467-468.) Instead, the review panel, which was created by a staff member, does not even rise to the level of a "passive meeting body" pursuant to section 67.3(c), which includes "[a]dvisory committees created by the initiative of a member of a policy body, the Mayor, or a department head" (§ 67.3(c)(1)), and which is not subject to the open meeting requirements for policy bodies, pursuant to section 67.5. As defendant points out, the only way to harmonize section 67.3(c) and section 67.3(d) without distorting the plain meaning of the statute "would be to conclude that policy bodies cannot be created by the actions of staff members (or other individuals), but only can be created by the actions of a policy body." (See Chaffee, at p. 468.)
We likewise disagree with plaintiff's assertion that a trier of fact could find that the review panel was a policy body because there is evidence in the record that the review panel made decisions about which applicants would be funded. First, the undisputed evidence shows that the panel made nonbinding recommendations, which the Community Arts Committee considered and voted on in an open meeting and which the full Arts Commission later approved, also in an open meeting. Anyone, including plaintiff, could have attended and raised any concerns it had about the grants program or review panel recommendations at either of the two publicly noticed Arts Commission meetings, where members of the public—including grant applicants—were free to comment before any final decisions were made.
Second, that the review panel could be considered part of the decision making process because its recommendations likely influenced the subsequent decisions by members of the Arts Commission does not mean that it performed the function of a policy body. Indeed, under section 67.3(c), passive meeting bodies, which are not subject to section 67.5's strict open meeting requirements, often exist specifically to advise a member of a policy body on various issues. (See § 67.3(c)(1) & (c)(2); see also 67.4(a)(5) [gatherings subject to passive meeting provisions include "advisory committees or other multimember bodies created in writing or by the initiative of, or otherwise primarily formed or existing to serve as a non-governmental advisor to, a member of a policy body, the Mayor, the City Administrator, a department head, or any elective officer"]; compare Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 41, 50, 51 [Board of Supervisors could not avoid Brown Act's open meeting requirements by "conduct[ing] some part of the decisional process behind closed doors" at informal luncheon].) Thus, as already noted, the undisputed evidence demonstrates that Nemzoff and the members of the review panel did not even meet the definition of a passive meeting body, much less that of a policy body with its open meeting requirements. (See § 67.3(c)(1) & (c)(2); §67.4(d)(4); see also Aguilar, supra, 25 Cal.4th at p. 849.)
2. Agency
Despite the foregoing undisputed evidence and the plain language of the Sunshine Ordinance, plaintiff argues, in what it describes as an issue of first impression, that triable issues of material fact exist as to whether the review panel was a policy body because Nemzoff acted as an actual or ostensible agent of the Arts Commission when she created it, and/or when the Arts Commission ratified its creation after the fact. In this way, according to plaintiff, the review panel arguably was "created by the initiative of" the Arts Commission, pursuant to section 67.3(d)(4), for purposes of the Sunshine Ordinance's requirement that "[a]ll meetings of any policy body shall be open and public." (§ 67.5.)
We have serious doubts about whether the Sunshine Ordinance can reasonably be construed so as to permit a policy body, such as the Arts Commission, to delegate the power to create a policy body to an individual, as an agent of that policy body. Under section 67.3(d)(4), a "policy body" includes policy bodies created by another policy body's its own initiative. Neither party has brought to our attention any case applying either the Brown Act or the Sunshine Ordinance to an entity on an agency theory or any language in either statute suggesting the propriety of such application. Nor do the parties explore the practical and perhaps unforeseen consequences of expanding application of these statutory schemes in such a way.
Nevertheless, even assuming that the Sunshine Ordinance could reasonably be interpreted as providing for City staff members, who are not themselves members of policy bodies, to create policy bodies under section 67.3(d)(4) based on the theory of agency, we conclude the undisputed evidence demonstrates that Nemzoff was not acting as an agent of the Arts Commission when she created the review panel.
" 'An agent is one who represents another, called the principal, in dealings with third persons.' (Civ. Code, § 2295.) 'In California agency is either actual or ostensible. (Civ. Code, § 2298.) An agency is actual when the agent is really employed by the principal. (Civ. Code, § 2299.) An agency is ostensible when a principal causes a third person to believe another to be his agent, who is not really employed by him. (Civ. Code, § 2300.) [¶] An agent has the authority that the principal, actually or ostensibly, confers upon him. (Civ. Code, § 2315.) . . .' " (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403 (J.L.).) Neither type of agency can " 'be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency.' " (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1133-1134.)
The existence of an agency relationship is a question of fact and summary judgment is improper where triable issues of material fact exist as to whether there is an agency. (Universal Bank v. Lawyers Title Ins. Corp. (1997) 62 Cal.App.4th 1062, 1066.) "Nonetheless, summary judgment is appropriate where . . . the evidence is undisputed and susceptible of but a single inference." (Ibid.; accord, Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960.)
Plaintiff argues there is evidence in the record demonstrating the existence of triable issues of material fact regarding whether Nemzoff was an agent of the Arts Commission.
The various facts that plaintiff asserts create triable issues as to Nemzoff's possible agency include the following facts it describes as undisputed: the review panel was comprised of individuals that Nemzoff had selected; Nemzoff, whose job title was "Program Director: San Francisco Arts Commission," was an employee of the City and worked out of the Arts Commission's offices; Nemzoff's job description described her duties as, inter alia, to " 'Supervise, direct, negotiate and monitor all CAE [Community Arts and Education] programs in content, budget, policy and procedures' and 'Manage 4.7 million annual program budget' "; Nemzoff convened the panel pursuant to her job managing community arts programs for the Arts Commission; the panel was publicized on materials containing the Arts Commission's and SFPUC's logos and was described as an official part of the grant review process; the panel met for eight hours at the Arts Commission's offices, and Nemzoff and other Arts Commission staff were present at the meeting; the purpose of the panel was to consider applicants for the arts grants; the panel reviewed all of the applications and gave each one a numerical score; a subcommittee of the Arts Commission met on July 9, 2013, and Nemzoff presented to them on the panel's process and decisions; the subcommittee voted to approve the panel's decisions; the full Arts Commission met on September 9, 2013, and voted to approve the subcommittee's July 9 decision; the City then paid out $100,000 in grants to organizations chosen by the panel; and, when plaintiff wrote to the Arts Commission to protest the closed-door panel, it was Nemzoff who wrote back, on Arts Commission letterhead with an Arts Commission return address.
The purportedly disputed facts that plaintiff claims raise a triable issue regarding Nemzoff's agency include whether the Arts Commission expressly instructed Nemzoff to create the panel; whether the Arts Commission was aware that Nemzoff had created the panel; the extent of the Arts Commission's authority over Nemzoff; whether and when the Arts Commission learned that Nemzoff had convened the panel without publicly noticing it; whether the subcommittee that met on July 9, 2013, reviewed the grant applications themselves or merely heard the summary of the panel's decisions from Nemzoff; and whether the full Arts Commission considered the applications in its meeting on September 9, 2013, or simply passed a motion to approve the grants.
Plaintiff first claims that there is a triable issue of fact regarding whether Nemzoff was an actual agent of the Arts Commission. "Actual agency typically arises by express agreement. [Citations.] It also 'may be implied from the conduct of the parties. [Citation.]' [Citation.] . . . [¶] ' "Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." [Citation.] "The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control." [Citation.]' [Citations.] Thus, the 'formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship . . . .' [Citation.]" (Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571 (Van't Rood).)
Here, the evidence shows only that Nemzoff and the Arts Commission did not agree that Nemzoff would act on behalf of the Arts Commission and that Nemzoff did not act subject to the Arts Commission's control. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.) As noted in part II.A.1., ante, Nemzoff stated in her initial declaration that she was an employee of the City and was responsible for administering the grants program at issue here. She created the panel, in consultation with fellow-employee Takayama, in her "sole discretion" and did not act on behalf of the Arts Commission when she did so. Nemzoff further stated, "The Arts Commission did not create the panel, direct me to create the panel, or have any involvement at all in the creation of the panel or the selection of the panelists." The evidence also shows that the panel sent its scoring and recommendations to the Community Arts Committee, which then "reviewed the grant applications and the recommendations of the review panel at a publicly noticed meeting with an opportunity for public comment," and unanimously voted to "approve panel recommendations." The Community Arts Committee's meeting minutes reflect that Nemzoff gave a presentation on the applicants for the grants program, that two commissioners asked questions and/or commented, that there was no public comment on the issue, and that the Community Arts Committee unanimously voted to "approve panel recommendations." The evidence further shows that the full Arts Commission subsequently passed a resolution, also at a public meeting, approving the Community Arts Committee's decision to award grants to the 10 highest scoring applicants.
In her supplemental declaration, Nemzoff stated, "I am not an employee of the Arts Commission, but rather am employed by the City and County of San Francisco. The Arts Commission did not hire me, and cannot fire me. Those employment decisions are made by the head of my department, who reports directly to the Mayor of San Francisco. [¶] The Arts Commission (and the commissioners who serve on the Arts Commission) also do not control or supervise my day to day job duties. The Arts Commission does not direct or interfere in any way with how I perform by job duties. I take direction from the head of my department, not from the Arts Commission or its members. My job duties and the limits on my discretion are set by the Department Head, not by the Arts Commission."
This evidence indicates that Nemzoff did not create the review panel on behalf of the Arts Commission, but did so in her own discretion, with no direction from or control by the Arts Commission. The Commission did not supervise Nemzoff or interfere with how she performed her job duties, as an employee of the City and under the direction of her department head. Indeed, San Francisco's Charter prohibits the Arts Commission from giving orders to City employees such as Nemzoff or interfering with their work. (See S.F. Charter, § 4.102 ["Each board or commission, relative to the affairs of its own department, shall deal with administrative matters solely through the department head or his or her designees, and any dictation, suggestion or interference herein prohibited . . . shall constitute official misconduct"].)
We find unpersuasive plaintiff's argument that the Arts Commission can control Nemzoff "by means of its control over the budget and by setting the policies, programs, and objectives that its staff are to carry out." First, plaintiff points to no evidence supporting its theory that Nemzoff could be a "designee[]" of the department head, pursuant to the San Francisco Charter. (S.F. Charter, §§ 4.102, 2A.30.) Moreover, the Arts Commission's general powers and duties to "[f]ormulate, evaluate and approve goals, objectives, plans and programs and set policies consistent with the overall objectives of the City and County" (S.F. Charter, § 4.102(1)), does not provide evidence that Nemzoff's day to day activities as an Arts Commission staff member were subject to the control of the Commission or, more particularly, that it controlled her actions when she created the review panel. As discussed in the text, ante, the only evidence in the record is to the contrary. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.)
In addition, the fact that, as plaintiff points out, an agent does not necessarily have to be an employee of the principal (see Scholastic Book Clubs, Inc. v. State Board of Equalization (1989) 207 Cal.App.3d 734, 737738), does not change our conclusion.
The evidence thus satisfied defendant's initial burden on summary judgment of showing the absence of facts necessary for a finding of actual agency. (See Van't Rood, supra, 113 Cal.App.4th at pp. 571-572; see also Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The burden therefore shifted to plaintiff to show the existence of triable issues of fact regarding an actual agency relationship. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 850-853.) Plaintiff has failed to satisfy its burden.
The facts cited by plaintiff—whether described as disputed or undisputed—fail to counter defendant's evidence showing the Arts Commission did not have authority and control over Nemzoff. Instead, the purported facts are either irrelevant to that question or are merely allegations, with no evidence to support them. For example, the claimed factual disputes regarding whether the Arts Commission expressly instructed Nemzoff to create the panel, whether the Arts Commission had authority over Nemzoff, and whether the Community Arts Committee reviewed the grant applications themselves or merely heard Nemzoff 's summary of the panel's recommendations, are supported by no actual evidence and are belied by defendant's evidence, as just discussed. Plaintiff's mere assertions to the contrary are not evidence showing the existence of triable issues of material fact. (See Aguilar, supra, 25 Cal.4th at p. 849 [" 'The plaintiff . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' "].)
Plaintiff's allegedly disputed facts regarding whether the Arts Commission was aware that Nemzoff had created the review panel do not raise a triable issue as to actual agency since the Commission's mere awareness would not show that it directed Nemzoff to create the review panel, that she agreed to do so on its behalf, or that she was subject to its control. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.) In addition, that Nemzoff had discretion to create a review panel and hold a meeting to score grants program applicants and provide recommendations to the Arts Commission does not, as defendant puts it, automatically "equal the power to create policy bodies," an act that section 67.3(d)(4) contemplates being performed by an already existing policy body, by its own initiative.
Plaintiff further argues that even if the Arts Commission did not direct Nemzoff to create the review panel, there is evidence that it ratified her creation of the review panel after the fact. "An actual agency also may be created by ratification. (Civ. Code, § 2307; [citation].) But 'ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified . . . .' (Civ. Code, § 2310.) . . . Where a writing is not required, a principal may ratify an agency 'by accepting or retaining the benefit of the act, with notice thereof.' (Civ. Code, § 2310.) But 'ratification is possible only when the person whose unauthorized act is to be accepted purported to act as agent for the ratifying party.' [Citation.]" (Van't Rood, supra, 113 Cal.App.4th at p. 571.)
As discussed, the evidence does not show that Nemzoff purported to act as an agent for the Arts Commission itself, rather than as a City employee. She handled the work of outreach, receipt of applications, creation of a review panel, and initial screening of applications. But the evidence does not support the claim that, in performing these acts, she purported to act in place of the Arts Commission, making any final decisions regarding grants program recipients on its behalf. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.) Instead, the evidence shows only that Nemzoff convened the review panel to make nonbinding recommendations to the Arts Commission as part of her job as Community Arts and Education Program Director; that she never believed she was an agent of the Arts Commission; and that, following open meetings with opportunities for public comment, a subcommittee of the Arts Commission and subsequently the Arts Commission as a whole made the final decisions as to which organizations would receive the grants.
Moreover, even were there evidence that Nemzoff attempted to act on behalf of the Arts Commission when she created the review panel, there is no evidence that the Arts Commission knew or should have known that she was purportedly acting as a policy body, given that commissioners twice met publicly to review and vote on the panel's recommendations. (Compare StreetScenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 242-243 [where principal had to have noticed agent's unauthorized conduct, principal's failure to repudiate agent's acts provided evidence of ratification].)
In addition, as defendant points out, plaintiff's ratification argument is also illogical in that it would mean that the review panel meeting was not that of a policy body when it took place—since Nemzoff would not then have been an agent of the Arts Commission—but became a meeting of a policy body retroactively once the Arts Commission turned it into a policy body by ratification. Such an interpretation of the phrase, "created by the initiative of a policy body" in section 67.3(d)(4) does not comport with principles of statutory construction in that it would not demonstrate "adhere[nce] to the [drafter's] intent, as evinced by the plain meaning of the actual words of the law. [Citation.]" (Gillespie v San Francisco Public Library Commission, supra, 67 Cal.App.4th at p 1174; accord, Chaffee, supra, 115 Cal.App.4th at pp. 467-468; see § 67.3(d)(4) [a "policy body" includes "any advisory board, commission, committee or body, created by the initiative of a policy body"].)
Because plaintiff has pointed to no evidence in the record showing either that Nemzoff's actions in convening the review panel were unauthorized, that she purported to act as an agent of the Arts Commission when she did so, or that the Arts Commission knew or should have known of her allegedly unauthorized conduct, plaintiff has not raised a triable issue of material fact as to agency by ratification. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.)
Finally, plaintiff argues that even if Nemzoff was not an actual agent of the Arts Commission, whether from the outset or by ratification, there is a triable issue of material fact regarding whether she was an ostensible agent of the Commission. "Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: The person dealing with an agent must do so with a reasonable belief in the agent's authority, such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent's apparent authority must not be negligent in holding that belief. [Citations.] Ostensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists. [Citation.]" (J.L., supra, 177 Cal.App.4th pp. 403-404.)
Here, there is no evidence suggesting plaintiff reasonably believed that Nemzoff or the review panel was acting in place of the Arts Commission and was charged with the ultimate decision regarding who would receive the SFPUC grants. The guidelines and application materials, which were created by Nemzoff and which plaintiff's member organizations necessarily used to apply for the grants, stated that the Community Arts Committee and the full Arts Commission would be reviewing the applications on particular dates, and both policy bodies ultimately did review and approve the panel's recommendations at publicly noticed meetings. That Nemzoff, in her role as Community Arts and Education Program Director for the Arts Commission, administered the grants program and convened the panel that made recommendations to the Arts Commission is not enough for plaintiff to have had a "reasonable belief in [Nemzoff's] authority" as a policy body under section 67.3(d)(4). (J.L., supra, 177 Cal.App.4th at p. 403.) Nor has plaintiff submitted evidence suggesting that it was a foregone conclusion that the 10 groups recommended for grants would receive them following the review panel meeting. The panel's recommendations were considered by the Community Arts Committee and the full Commission, at open meetings. To the extent that plaintiff wished to have input in the process, it could have attended either of those meetings and asked questions or commented, which it failed to do. Any belief plaintiff held that Nemzoff had authority to make binding decisions regarding grant recipients on behalf of the Arts Commission was not reasonable. (See J.L., at pp. 403-404.)
Moreover, plaintiff has not cited any evidence suggesting that its belief in Nemzoff's purported authority was "generated by some act or neglect by" the Arts Commission. (J.L., supra, 177 Cal.App.4th at pp. 403-404; see Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 747 [ostensible authority must be based on some act or neglect of principal and not "solely upon the agent's conduct"]; compare Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 548 [evidence reflected that both agent and principal "held themselves out to the public as one construction firm and that the plaintiffs contracted with" principal on that basis].) Because plaintiff has pointed to no evidence even suggesting that the Arts Commission acted or neglected to act in a way that caused plaintiff to reasonably believe in Nemzoff's authority, there is no triable issue of material fact from which a trier of fact could find Nemzoff was the ostensible agent of the Arts Commission. (See Van't Rood, supra, 113 Cal.App.4th at p. 571.)
Plaintiff cites several cases involving the application of ostensible agency to the unique circumstances of physicians working within hospitals. (See, e.g., Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448; Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88.) The analysis in those cases is applicable only in the physician-hospital context, and therefore is not relevant to the present circumstances. (See J.L., supra, 177 Cal.App.4th at p. 405 [finding that physician-hospital cases were inapposite and that presumptions discussed in those cases were not applicable in non-hospital context].) --------
In sum, in light of the undisputed evidence, together with the language and purpose of the Sunshine Ordinance and the law of agency, we conclude the trial court correctly found there were no genuine triable issues of fact regarding whether the review panel was itself a policy body, "created by the initiative of a policy body" (§ 67.3(d)(4)), for purposes of the open meeting requirement of section 67.5. (See Aguilar, supra, 25 Cal.4th at p. 849; Emery v. Visa Internat. Service Assn., supra, 95 Cal.App.4th at p. 960; Universal Bank v. Lawyers Title Ins. Corp., supra, 62 Cal.App.4th at p. 1066.)
B. Section 67.3(d)(7)
Plaintiff contends, in the alternative, that the review panel meeting should have been open and publicly-noticed under section 67.3(d)(7), which provides that a policy body includes "[a]ny advisory board, commission, committee, or council created by a federal, State, or local grant whose members are appointed by City officials, employees or agents." Specifically, plaintiff maintains that the SFPUC's transfer of $100,000 to the Arts Commission for the purposes of awarding grants to arts organizations to support arts engagement in the Bayview/Hunters Point neighborhood was itself a grant to the Arts Commission, and that that grant caused the creation of the review panel.
This argument is based on a strained interpretation of section 67.3(d)(7). As Nemzoff stated in her supplemental declaration—and as dictated by common sense—"The SFPUC did not 'grant' money to the Arts Commission. . . . Instead, the SFPUC provided money in a work order to the Arts Commission" to assist in the grantee selection and administration process. While plaintiff is correct that the review panel would not have existed "but for" the SFPUC grant, that does not mean the grant somehow "created" the review panel for purposes of making it a policy body under section 67.3(d)(7).
Because plaintiff has cited no evidence suggesting that the review panel was "created by a . . . grant" pursuant to section 67.3(d)(7), there are no triable issues of material fact regarding whether the panel's meeting was subject to the open meeting requirements of the Sunshine Ordinance under that section. (See § 67.5; see also Aguilar, supra, 25 Cal.4th at p. 849.)
C. Conclusion
The purpose of the Sunshine Ordinance is to "ensure[] that city and county commissions, boards and councils conduct their business before the people." (Gillespie v. San Francisco Public Library Commission, supra, 67 Cal.App.4th at p. 1170.) Here, after the review panel made nonbinding recommendations to the Arts Commission, those recommendations were approved over the course of two public meetings by a committee of the Arts Commission and the full Arts Commission. Because plaintiff has not set forth any "specific facts showing that a triable issue of material fact exists" (Code Civ. Proc., § 437c, subd. (p)(2)) regarding whether the review panel could be considered a "policy body" under the Sunshine Ordinance (§ 67.3(d)(4) & (d)(7)), we conclude the trial court properly granted defendant's motion for summary judgment in this case. (See Aguilar, supra, 25 Cal.4th at p. 849.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.