The opinion
Filed 8/19/25; modified and certified for publication 8/19/25 (orders attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
DAVID BYRNE et al., 2d Civil No. B332962
(Cons. w/B335099)
Plaintiffs and Appellants, (Super. Ct. No.
2023CUMC008352)
v. (Ventura County)
LESLIE RULE et al., ORDER DENYING
PETITION FOR
Defendants and REHEARING AND
Respondents. MODIFYING OPINION
(No Change in Judgment)
THE COURT:
It is ordered that the opinion filed herein on July 23, 2025,
be modified as follows:
On page 12, under DISPOSITION, the third sentence is
modified to read “We express no opinion on the merits of the first
amended complaint or the respondents’ defenses thereto.”
There is no change in judgment.
Respondents’ Petition for Rehearing is denied.
GILBERT, P.J. BALTODANO, J. CODY, J.
Filed 7/23/25 (unmodified opinion)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
DAVID BYRNE et al., 2d Civil No. B332962
(Cons. w/B335099)
Plaintiffs and Appellants, (Super. Ct. No.
2023CUMC008352)
v. (Ventura County)
LESLIE RULE et al.,
Defendants and Respondents.
Appellants are seven residents of the City of Ojai and its
environs.1 They sued respondent Leslie Rule, a member of the
Ojai city council, and her attorney, respondent Jonathan
Drucker, for declaratory and injunctive relief after respondents
disclosed information Rule acquired in a closed session meeting of
1 Plaintiffs and appellants are: David Byrne; Vickie
Carlton-Byrne; Thomas D. Mashburn; Douglas LaBarre; Joel
Maharry; Gerald Schwanke; and Leslie Ferraro.
the council. Appellants alleged the disclosures violated the
Brown Act’s confidentiality provisions. (Gov. Code,2 § 54963.)
Respondents moved to strike appellants’ first amended
complaint as a politically motivated “SLAPP” suit. (Code Civ.
Proc., § 425.16.) Appellants opposed the motion, arguing their
suit fell within the exception for actions “brought solely in the
public interest or on behalf of the general public.” (Id., § 425.17,
subd. (b).) The trial court found appellants failed to meet their
burden of establishing the public interest exception applied and
granted the motion to strike. It awarded respondents attorney’s
fees and costs, finding appellants’ action did not fall within the
statute barring fees and costs in Brown Act enforcement actions.
(Id., § 425.17, subd. (c)(2); Gov. Code, § 54960.)
We will vacate the order granting the anti-SLAPP motion.
Appellants’ allegations and the relief they seek places their action
within the public interest exception regardless of their political
motivations. We will also vacate the order awarding attorney’s
fees and costs to respondents.
FACTUAL AND PROCEDURAL HISTORY
As we explain below, our review is de novo. We draw our
factual summary from appellants’ first amended complaint.
Allegations
The Ojai city council approved a development agreement
with The Becker Group, Inc. and affiliated entities (Becker) in
October of 2022. The agreement granted Becker entitlements to
develop four different projects within the city.
City council elections were held in November of 2022. Four
of the five seats were contested. Voters reelected Betsy Stix as
2 All further references are to the Government Code unless
otherwise indicated.
2
mayor and elected three new members to the council: Rachel
Lang, Andrew Whitman, and respondent Leslie Rule.
A nonprofit organization called Simply Ojai filed a petition
for writ of mandate in December of 2022 challenging the
agreement with Becker Group (Simply Ojai action). It named the
City of Ojai and the council as respondents and Becker as real
party in interest.3 A petition seeking a referendum to overturn
the agreement was presented to the city with the required
signatures.
The council issued notices and agenda for closed sessions
on January 9, 2023, and January 10, 2023. The agendas listed
“Conference with Legal Counsel; Existing Litigation” as a
discussion item and identified the Simply Ojai action by name.
The agendas listed “Conference with Legal Counsel; Initiating
Litigation” as another discussion item. The city council then held
closed sessions on those dates. The city attorney and all five
members attended.
The council held a regularly scheduled meeting on January
24, 2023. Rule disseminated a written statement to members of
the public that included “an extensive and detailed discussion of
confidential and privileged information she obtained” from the
closed sessions on January 9 and 10. She “began verbally
disclosing confidential closed session information” during the
meeting. The city attorney directed her to stop but she refused.
Rule then moved to allow disclosure but none of her colleagues
seconded the motion.
3 Simply Ojai v. City of Ojai, et al. (Super. Ct. Ventura
County, 2022, No. 2022CUWM00572740). Ojai Bungalows, L.P.
and Green Hawk, LLC were also named as real parties in
interest.
3
Respondent Drucker, an attorney, attended the January 24
meeting as well. He gave members of the public a 12-page letter
he wrote on behalf of Rule entitled, “City Council Closed Sessions
and the Duty of Disclosure.” The letter included “an extensive
and detailed discussion of confidential and privileged information
obtained by [Rule]” on January 9 and 10. Drucker then discussed
the letter’s contents during the public comment period. He wrote
a second letter on January 27 containing the same information.
Both were posted on a website called “Transparent Ojai,”
published in the Ojai Valley News newspaper, and circulated on
social media.
Drucker attended the council’s regular meeting on April 25,
2023. He admitted during public comment that he had disclosed
confidential closed session communications. Rule again moved
unsuccessfully to waive closed session confidentiality.
Brown Act Complaint and Anti-SLAPP Motion
Appellants filed this action three days after the April 25
regular meeting. They sought a declaration that respondents
violated section 54963 of the Brown Act when they disclosed
information acquired by Rule in closed session. Appellants also
sought an order enjoining further disclosures.
Respondents moved to strike the first amended complaint
under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) They
submitted declarations describing the seven plaintiffs (i.e.,
appellants) and their counsel as politically aligned with those
opposing the Becker developments. In response, appellants
argued their action fell within the statute’s public interest
exception, which applies to actions “brought solely in the public
interest or on behalf of the general public.” (Id., § 425.17, subd.
(b).) The trial court found appellants did not meet their burden
4
to establish the exception applied and granted the motion to
strike.
Attorney’s Fees Motion
Respondents moved for attorney’s fees under the fee-
shifting provision of the anti-SLAPP statute. (Code Civ. Proc.,
§ 425.16, subd. (c).) Appellants opposed the motion on the
grounds that subdivision (c) excluded actions brought under
section 54960 of the Brown Act. The trial court granted the
motion, finding the Brown Act exception did not apply because
appellants sought relief only under section 54963, not section
54960. It awarded respondents attorney’s fees of $78,885.00.
DISCUSSION
Closed Sessions Under the Brown Act
The Brown Act requires the legislative body of any city,
county, or other local agency to meet and conduct its business in
public. (§ 54953, subd. (a).) The body may meet in closed session
only if one or more exceptions apply. (§ 54962.) Among the
exceptions are meetings “to confer with, or receive advice from,
its legal counsel regarding pending litigation when discussion in
open session concerning those matters would prejudice the
position of the local agency in the litigation.” (§ 54956.9, subd.
(a).) The agency must post an agenda 72 hours before any
regular meeting. (§ 54954.2, subd. (a)(1).) The agenda must
contain “a brief general description of each item of business to be
transacted or discussed at the meeting, including items to be
discussed in closed session.” (Ibid.)
The Brown Act defines litigation as “any adjudicatory
proceeding, including eminent domain, before a court,
administrative body exercising its adjudicatory authority,
hearing officer, or arbitrator.” (§ 54956.9, subd. (c).) Litigation is
considered “pending” when: litigation “has been initiated
5
formally” against the agency; “there is significant exposure to
litigation”; the agency “is meeting only to decide whether a closed
session is authorized”; or when the agency “has decided to initiate
or is deciding whether to initiate litigation.” (Id., subd. (d).) The
legislative body must “state on the agenda or publicly announce
the paragraph of subdivision (d) that authorizes the closed
session” before holding it. (Id., subd. (g); § 54957.7.)
“A person may not disclose confidential information that
has been acquired by being present in a closed session . . . to a
person not entitled to receive it, unless the legislative body
authorizes disclosure of that confidential information.” (§ 54963,
subd. (a).) “‘[C]onfidential information’ means a communication
made in a closed session that is specifically related to the basis
for the legislative body of a local agency to meet lawfully in closed
session under this chapter.” (Id., subd. (b).) Violations of section
54963 “may be addressed by the use of such remedies as are
currently available by law, including, but not limited to . . .
[i]njunctive relief to prevent the disclosure of confidential
information.” (Id., subd. (c)(1); see § 54960, subd. (a) [“[A]ny
interested person may commence an action . . . for the purpose of
stopping or preventing violations . . . of this chapter”].)
Public Interest Exception to Anti-SLAPP Statute
Appellants’ first amended complaint sought to enjoin
respondents from disclosing confidential information in violation
of section 54963. They contend their action falls within the
public interest exception to the anti-SLAPP law. We agree.
“Code of Civil Procedure, section 425.16 provides a
procedure for the early dismissal of what are commonly known as
SLAPP suits (strategic lawsuits against public participation)—
litigation of a harassing nature, brought to challenge the exercise
of protected free speech rights. The section is thus informally
6
labeled the anti-SLAPP statute.” (Fahlen v. Sutter Central Valley
Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) “In 2003, the
Legislature enacted section 425.17 to curb the ‘disturbing abuse’
of the anti-SLAPP statute. [Citation.] This exception statute
covers both public interest lawsuits . . . and ‘commercial speech.’”
(Club Members for an Honest Election v. Sierra Club (2008) 45
Cal.4th 309, 316 (Sierra Club), quoting Code Civ. Proc., § 425.17,
subds. (a)-(c).) We review whether appellants’ action falls within
the exception de novo. (Tourgeman v. Nelson & Kennard (2014)
222 Cal.App.4th 1447, 1458 (Tourgeman).)
The public interest exception is codified at Code of Civil
Procedure section 425.17, subdivision (b). It applies “to any
action brought solely in the public interest or on behalf of the
general public if all of the following conditions exist: [¶] (1) The
plaintiff does not seek any relief greater than or different from
the relief sought for the general public or a class of which the
plaintiff is a member. . . . [¶] (2) The action, if successful, would
enforce an important right affecting the public interest, and
would confer a significant benefit, whether pecuniary or
nonpecuniary, on the general public or a large class of persons.
[¶] (3) Private enforcement is necessary and places a
disproportionate financial burden on the plaintiff in relation to
the plaintiff’s stake in the matter.” (Id., § 425.17, subd. (b).)
“[B]ecause section 425.17(b) is a statutory exception to section
425.16, it should be narrowly construed.” (Sierra Club, supra, 45
Cal.4th at p. 316.) “We look to the allegations of the complaint
and the scope of relief sought in order to determine whether the
public interest exception applies.” (Cruz v. City of Culver City
(2016) 2 Cal.App.5th 239, 249.)
We first look to whether appellants “seek any relief greater
than or different from the relief sought for the general public.”
7
(Code Civ. Proc., § 425.17, subd. (b)(1).) The first amended
complaint contains a single cause of action against respondents
for violating section 54963. Appellants seek two types of relief:
(1) a declaration that respondents violated the statute “by
disclosing confidential communications obtained from closed
sessions of the Ojai City Council”; and (2) an injunction
prohibiting such disclosures going forward, as well as orders
directing respondents “to identify each person with whom [they]
shared confidential communications.” They seek no relief or
advantage for themselves that is different than that sought for
the public at large. (See Sierra Club, supra, 45 Cal.4th at p. 317
[public interest exception did not apply to action seeking to
install plaintiffs on board of directors of non-profit organization].)
The first amended complaint focuses solely and entirely on
enforcing the Brown Act’s closed session requirements. (See
Tourgeman, supra, 222 Cal.App.4th at p. 1461 [exception applied
to action seeking to prevent respondents from violating Fair Debt
Collection Practices Act (FDCPA) in the future].) The relief
appellants seek—not their motivation to seek that relief—is the
extent of the court’s inquiry here.
We next look to whether “[t]he action, if successful, would
enforce an important right affecting the public interest, and
would confer a significant benefit, whether pecuniary or
nonpecuniary, on the general public or a large class of persons.”
(Code Civ. Proc., § 425.17, subd. (b)(2).) It would. “A city council
needs freedom to confer with its lawyers confidentially in order to
obtain adequate advice, just as does a private citizen who seeks
legal counsel, even though the scope of confidential meetings is
limited by this state’s public meeting requirements.” (Roberts v.
City of Palmdale (1993) 5 Cal.4th 363, 380 (Roberts).) “The public
interest is served by the privilege because it permits local
8
government agencies to seek advice that may prevent the agency
from becoming embroiled in litigation, and it may permit the
agency to avoid unnecessary controversy with various members
of the public.” (Id. at pp. 380-381.)
The first amended complaint alleges respondents
disseminated privileged and confidential information obtained by
Rule during closed sessions. This included oral statements she
and Drucker made during open sessions and written remarks
distributed to the public both physically and over the internet. If
successful, appellants’ action will allow the court to discern
whether respondents violated section 54963, and if so, to craft
injunctive relief that will guide the parties (and public) at this
troublesome intersection of two important policies. “Open
government is a constructive value in our democratic society.
[Citations.] The attorney-client privilege, however, also has a
strong basis in public policy and the administration of justice.”
(Roberts, supra, 5 Cal.4th at p. 380.)
Lastly, we look to whether “[p]rivate enforcement is
necessary and places a disproportionate financial burden on the
plaintiff in relation to the plaintiff’s stake in the matter.” (Code
Civ. Proc., § 425.17, subd. (b)(3).) Our Legislature expressly
authorized “[t]he District Attorney or any interested person” to
“commence an action by mandamus, injunction, or declaratory
relief for the purpose of stopping or preventing violations or
threatened violations of [the Brown Act] by members of the
legislative body of a local agency or to determine the applicability
of this chapter to ongoing actions or threatened future actions of
the legislative body, or to determine the applicability of this
chapter to past actions of the legislative body.” (§ 54960, subd.
(a).) While the District Attorney wrote a cease-and-desist letter
to the council after this action was filed concerning alleged
9
violations of section 54963, it did not “commence an action” to
enforce the statute. Appellant’s private enforcement action is
thus consistent with the aims of both section 54960 and the
public interest exception. (See Tourgeman, supra, 222
Cal.App.4th at p. 1464 [action seeking only injunctive and
declaratory relief relating to respondents’ debt collection
practices was “fully consistent both with Congress’s intent in
enacting FDCPA and the Legislature’s intent in enacting the
UCL and section 425.17”].)
The trial court did not analyze these three conditions when
it declined to apply the exception. It first cited Sandlin v.
McLaughlin (2020) 50 Cal.App.5th 805, noting correctly that
“[p]ersonal political agendas and motivations may make the
[exception] inapplicable.” “Given the nature of the case, the
special interests of the parties, and the lack of supporting
declarations submitted by [appellants],” the court found, “they
have not met their burden of establishing that the narrowly
construed exemption of [section 425.17, subdivision (b)] applies
and this case was brought solely in the public interest.” This was
error.
Appellants bore the burden to establish the exception
applied. They did not, however, bear the burden to produce
evidence supporting this position. “[T]he public interest exception
is a threshold issue based on the nature of the allegations and
scope of relief sought in the prayer.” (People ex rel. Strathmann
v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 499; see
Cruz v. City of Culver City (2016) 2 Cal.App.5th 239, 249 [“We
look to the allegations of the complaint and the scope of relief
sought in order to determine whether the [exception] applies”];
accord, Tourgeman, supra, 222 Cal.App.4th at p. 1460.) The trial
court appears to have conflated appellants’ burden to establish
10
the exception with their burden to prove the likelihood of
prevailing on their claims, or, more specifically, to produce
evidence rebutting the motion’s declarations and exhibits.
Our Supreme Court has made clear that determining
whether the exception applies is a “threshold,” pleading-based
determination—not a contested evidentiary proceeding. (See
Sierra Club, supra, 45 Cal.4th at p. 316, italics added [“If a
complaint satisfies the provisions of the applicable exception, it
may not be attacked under the anti-SLAPP statute”].) “If a
plaintiff's lawsuit comes within section 425.17, subdivision (b), it
is exempt from the anti-SLAPP statute, and thus, a trial court
may deny the defendants’ special motion to strike without
determining whether the plaintiff’s causes of action arise from
protected activity, and if so, whether the plaintiff has established
a probability of prevailing on those causes of action under section
425.16, subdivision (b)(1).” (Tourgeman, supra, 222 Cal.App.4th
at p. 1460.)
Attorney’s Fees Award
Having concluded the public interest exception applies, we
reverse the order awarding attorney’s fees to respondents. We
would reverse the award even if the exception did not apply.
“A defendant who prevails on a special motion to strike . . .
shall not be entitled to attorney’s fees and costs if that cause of
action is brought pursuant to Section . . . 54960 . . . of the
Government Code.” (Code Civ. Proc., § 425.16, subd. (c)(2).)
Section 54960, subdivision (a) states in pertinent part: “The
district attorney or any interested person may commence an
action by mandamus, injunction, or declaratory relief for the
purpose of stopping or preventing violations or threatened
violations of this chapter.” (§ 54960, subd. (a), italics added.)
“This chapter” refers to the Brown Act generally, which falls
11
entirely within Chapter 9 of Division 2, Part 1 of the Government
Code. The first amended complaint seeks declaratory and
injunctive relief related to alleged Brown Act violations—
specifically, respondents’ disclosing of confidential information
acquired by Rule in closed session. (§ 54963.) The action falls
within the exception. Even if appellants had cited the incorrect
statute (they did not), the error could easily have been cured by
amendment. (See Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081 [the trial court abuses it discretion if there is
a reasonable possibility appellant could cure the defect by
amending the pleading to state a cause of action].)
DISPOSITION
Judgment is reversed. The matter is remanded to the trial
court with directions to enter an order denying the special motion
to strike and the motion for attorney’s fees. We express no
opinion on the merits of the first amended complaint. Appellants
shall recover their costs on appeal.
CODY, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
12
Benjamin J. Coats, Judge
Superior Court County of Ventura
______________________________
Law Office of Brian Acree, Brian Acree; Law Office of Herb
Fox, Herb Fox; and Venskus & Associates, Sabrina D. Venskus,
for Plaintiffs and Appellants.
S.C. Johnson & Associates, Stephen C. Johnson; Law Office
of Jon E. Drucker, Jon E. Drucker, for Defendants and
Respondents.
Filed 8/19/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
DAVID BYRNE et al., 2d Civil No. B332962
(Cons. w/B335099)
Plaintiffs and Appellants, (Super. Ct. No.
2023CUMC008352)
v. (Ventura County)
LESLIE RULE et al., ORDER CERTIFYING
OPINION FOR
Defendants and PUBLICATION
Respondents. (No Change in Judgment)
THE COURT*:
The opinion in the above-entitled matter filed on July 23,
2025, was not certified for publication in the Official Reports. For
good cause, pursuant to California Rules of Court, rules 8.1105
and 8.1110, it now appears the opinion should be published in the
Official Reports. It is so ordered.
There is no change in the Judgment.
CERTIFIED FOR PUBLICATION.
____________________________________________________________
GILBERT P.J. BALTODANO, J. CODY, J.