The opinion
Filed 9/16/25 Ashford v. Midpeninsula Regional Open Space District CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PAMELA ASHFORD, H051856
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. No. 22CV407741)
v.
MIDPENINSULA REGIONAL
OPEN SPACE DISTRICT,
Defendant and Respondent.
For several years, appellant Pamela Ashford was the interim manager
of the Bear Creek Stables on a month-to-month lease assigned to her by
respondent Midpeninsula Regional Open Space District (Midpeninsula). The
Bear Creek Stables are part of Midpeninsula’s Bear Creek Redwoods Open
Space Preserve. When Midpeninsula issued a request for proposals (RFP) for
a concessionaire to operate the Bear Creek Stables, Ashford submitted a
proposal. However, Midpeninsula did not select Ashford and instead
awarded the concessionaire contract to the candidate ranked first in the
selection process, Chaparral Country Corporation (Chaparral).
Ashford subsequently filed the instant action against Midpeninsula,
which demurred to all causes of action in the first amended complaint and
the second amended complaint on the primary ground that Ashford had
failed to state facts sufficient for any cause of action. The trial court
sustained the demurrers without leave to amend as to the cause of action for
violation of the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.1)
in the first amended complaint, and also sustained the demurrers without
leave to amend as to the causes of action in the second amended complaint
for retaliatory eviction, violation of the California Public Records Act (CPRA)
(§ 7920 et seq.), violation of the constitutional right to equal protection,
violation of the constitutional right to due process, conversion, replevin, and
common counts. The January 9, 2024 judgment dismissed the second
amended complaint.
On appeal, Ashford contends that the trial court erred in sustaining the
demurrers without leave to amend and dismissing the second amended
complaint because she alleged facts sufficient for all causes of action in the
complaint. For the reasons stated below, we decide the trial court did not err
and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Facts
Our summary of the facts is drawn from the allegations of the
complaints and the requests for judicial notice filed below. In reviewing a
ruling sustaining a demurrer without leave to amend, we assume the truth of
the properly pleaded factual allegations and the matters properly subject to
judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Midpeninsula acquired the Bear Creek Stables in 1999 when it added
acreage to the Bear Creek Redwoods Open Space Preserve. The Bear Creek
1 All further unspecified statutory references are to the Government
Code.
2
Stables has been used as an equestrian boarding and training facility for
decades and is allowed to operate in Santa Clara County under a legal
nonconforming use designation.
In 2015 Midpeninsula’s board of directors approved the assignment of
the Bear Creek Stables month-to-month rental agreement to Ashford as the
interim manager of the stables. In 2017 Midpeninsula’s board of directors
approved the Bear Creek Redwoods Preserve Plan, which designated the
Bear Creek Stables for continued equestrian use.
In February 2022, Midpeninsula issued an RFP for a concessionaire to
provide horse stable management and equestrian programs at the Bear
Creek Stables under a preliminary two-year term, followed by two, five-year
extensions. The RFP included a two-phase selection process. Phase I
required submission of a proposal that included information such as a resume
and project team information. Phase II included candidate interviews and a
mandatory property tour. The RFP stated that the contract to operate the
Bear Creek Stables would be awarded by Midpeninsula to “ ‘the most
responsive and responsible applicant, based [on] information received
through submittals, interviews, and results of site visits.’ ”
Ashford submitted a response to Midpeninsula’s RFP that satisfied all
of the Phase I criteria. When Phase II was completed, an evaluation
committee, consisting of three internal members and three external
members, ranked Ashford second of the three finalists and recommended the
selection of Chaparral, the candidate ranked first.
Midpeninsula’s board of directors awarded the contract for a horse
stable concessionaire to operate the Bear Creek Stables to Chaparral during
the board meeting held on August 24, 2022. Midpeninsula demanded that
3
Ashford vacate the Bear Creek Stables by December 31, 2022, after serving
her with a 30-day notice to terminate her lease on December 23, 2022.
When Ashford did not vacate the Bear Creek Stables voluntarily,
Midpeninsula filed an unlawful detainer action against her in which some
property issues were resolved by a May 19, 2023 stipulation and order.
(Midpeninsula Regional Open Space District v. Ashford (Super. Ct. Santa
Clara County, 2023, No. 23CV410606); hereafter, unlawful detainer action).
The parties’ stipulation in the unlawful detainer action included Ashford’s
agreement to remove her personal property, including her equestrian fencing,
and that “[a]ny of [Ashford]’s personal property that remains at the [s]ubject
[p]roperty after June 15, 2023, shall be deemed [Midpeninsula]’s property.”
The stipulation further provided that “[t]he [c]ourt shall retain jurisdiction
over the parties to enforce the [s]tipulation herein until performance in full of
its terms pursuant to Code of Civil Procedure section 664.6.”
According to Ashford, Midpeninsula should not have selected
Chaparral as the new concessionaire for the Bear Creek Stables because
Chapparal’s submission did not meet the criteria established in the RFP in
several respects, including Chaparral’s failure to submit a complete financial
plan and to satisfy insurance requirements. Midpeninsula also allegedly did
not consider negative information about Chapparal. Further, Ashford alleged
that Midpeninsula’s decision making process was flawed, improperly relied
on inaccurate information and ex parte communications with other bidders
and violated the Ralph M. Brown Act (Brown Act) (§ 54950 et seq.) because a
board member discussed Ashford’s proposal at a public meeting with off-
agenda items.
4
B. Procedural Background
1. First Amended Complaint
Ashford filed her original complaint on November 23, 2022, naming
Midpeninsula as the defendant, then filed her verified first amended
complaint on February 16, 2023, after receiving correspondence from
Midpeninsula asserting defects in the original complaint. The first amended
complaint includes causes of action for (1) violation of the open meeting
provisions of the Brown Act (§ 54954.3, subd. (a)); (2) declaratory relief
(voiding the contract awarded to Chaparral due to Midpeninsula’s failure to
comply with state and county competitive bidding requirements); (3)
injunctive relief permanently enjoining performance of the contract by
Chaparral; (4) promissory estoppel; (5) negligent misrepresentation; (6)
negligent infliction of emotional distress; and (7) retaliatory eviction
(retaliation for Ashford filing her original complaint alleging Brown Act
violations; Civ. Code, § 1942.5, subd. (c).)
2. Demurrers to First Amended Complaint
Midpeninsula demurred to all causes of action in the first amended
complaint on the grounds that it failed to state facts sufficient for any of the
causes of action and the trial court lacked subject matter jurisdiction. The
demurrers were based in part on facts obtained from documents submitted
with Midpeninsula’s request for judicial notice, including that Ashford had
assumed a month-to-month lease for the Bear Creek Stables in 2015.
With regard to the first cause of action for violation of the Brown Act,
Midpeninsula contended that the trial court lacked jurisdiction because
Ashford had failed to comply with the Brown Act’s prelitigation requirement,
set forth at sections 54960.1, subdivision (b) and 54960.2, subdivision (a)(1).
Midpeninsula asserted that Ashford had failed to send a cure or correct letter
5
to Midpeninsula that “ ‘clearly describe[s] the challenged action of the
legislative body and the nature of the alleged violation’ ” as required by
sections 54960.1, subdivision (b) and 54960.2, subdivision (a)(1) before filing
her original complaint. Midpeninsula explained that Ashford’s letter did not
provide the required description of the nature of the alleged Brown Act
violation. Midpeninsula also argued that Ashford’s conclusory allegations of
Brown Act violations were insufficient to state a cause of action.
The second cause of action for declaratory relief failed, Midpeninsula
argued, because the state and county laws governing competitive bidding did
not apply to Midpeninsula and because Ashford had failed to allege a viable
Brown Act violation. Midpeninsula argued for the same reasons that the
third cause of action failed because Ashford had stated no grounds for
injunctive relief.
As to the fourth cause of action for promissory estoppel and the fifth
cause of action for negligent misrepresentation, which were both based on
alleged misrepresentations, Midpeninsula argued that these claims were
barred by section 818.8, which provides absolute immunity to public entities
for an employee’s negligent misrepresentations. Similarly, Midpeninsula
contended that the sixth cause of action for negligent infliction of emotional
distress was barred under section 815, which immunizes public entities from
claims of common law negligence.
Finally, Midpeninsula argued that Ashford could not state the seventh
cause of action for retaliatory eviction because there was another action
pending that concerned her eviction: Midpeninsula’s unlawful detainer
action against Ashford. Alternatively, Midpeninsula argued that the
judicially noticeable facts showed that Ashford had filed her original
complaint in November 2022, months after Midpeninsula awarded the
6
contract to Chaparral in August 2022 and notified Ashford that her month-to-
month tenancy would terminate in December 2022. Therefore,
Midpeninsula’s decision to remove Ashford as the tenant of Bear Creek
Stables was not based on the filing of this action. Midpeninsula also pointed
out that section 818 precludes an award of punitive damages against a public
entity.
3. Trial Court Order Sustaining Demurrers to First Amended
Complaint
In a July 7, 2023 order, the trial court sustained Midpeninsula’s
demurrers to causes of action 1 through 6 without leave to amend. The trial
court sustained the demurrer to the seventh cause of action for retaliatory
eviction with leave to amend. Additionally, the trial court granted
Midpeninsula’s request for judicial notice of several Midpeninsula documents
pertaining to the RFP and the award of the contract to operate the Bear
Creek Stables to Chaparral and documents filed in the instant action and the
unlawful detainer action.
The trial court sustained the demurrers to causes of action 1 through 6
on the grounds that all six claims were tied to the insufficiency of Ashford’s
allegations that Midpeninsula had violated the Brown Act. Taking judicial
notice of Ashford’s October 28, 2022 “cure or correct” letter to Midpeninsula
regarding the alleged Brown Act violation, the trial court ruled that the letter
did not comply with the Brown Act’s requirement (§ 54960.1) that a
prelitigation letter clearly describe the nature of the alleged Brown Act
violation so the public entity may correct it.
Specifically, the trial court noted that Ashford’s “cure or correct” letter
stated that Midpeninsula had violated the Brown Act’s open meeting laws
because Midpeninsula’s decision to award the contract to Chaparral
7
“disregarded the competitive bidding process and the justification for the
award of the contract to Chaparral were [sic] not properly discussed in an
open session of [the Midpeninsula Board of Directors].” The trial court
determined that this language in the letter did not provide enough
information to allow Midpeninsula to correct any Brown Act error. Further,
to the extent Ashford also alleged that Midpeninsula had violated the Brown
Act by conducting private discussions, the trial court noted that her “cure or
correct” letter did not mention private discussions, and the complaint did not
allege that any action was taken during private discussions. Since Ashford
had not shown that she could correct these fatal defects in her allegations of
Brown Act violations, the trial court sustained the demurrers to causes of
action 1 through 6 without leave to amend.
The trial court sustained the demurrer to the seventh cause of action
for retaliatory eviction with leave to amend the complaint with respect to the
allegations regarding the timing of Ashford’s eviction.
4. Second Amended Complaint
Ashford then filed a second amended complaint that included a first
cause of action for retaliatory eviction and six new causes of action, although
Ashford had not sought leave to file an amended complaint with new causes
of action as required by Code of Civil Procedure section 472, subdivision (a).
As to the cause for retaliatory eviction, Ashford alleged that
Midpeninsula had retaliated against her for her petitioning activity,
consisting of her complaints to Midpeninsula in August and September 2022
that Midpeninsula committed “improprieties” in the selection process for the
award of the contract for the Bear Creek Stables, her October 2022 letter
complaining of Midpeninsula’s Brown Act violations, and her November 2022
original complaint in this matter.
8
According to Ashford, her petitioning activity preceded the 30-day
notice of termination of her stable lease that Midpeninsula served in
December 2022. Ashford also asserted that the 30-day notice was ineffective
because she was entitled to a 60-day notice since the stables were residential
property. Based on these allegations, Ashford claimed that Midpeninsula’s
unlawful detainer action constituted retaliatory eviction.
The new causes of action in the second amended complaint included the
second cause of action for violation of the state and federal constitutional
guarantees of equal protection, based on Ashford’s allegations that she was
treated differently than similarly situated applicants for the Bear Creek
Stables contract and she had a fundamental vested property right in her
“long-running equestrian business at the [s]tables.” The third cause of action
for violation of constitutional due process was also based on Ashford’s
allegation that she had a fundamental vested property right in her
equestrian business and also was based on her allegation that Midpeninsula
did not afford her a full and fair evaluation of her bid to operate the Bear
Creek Stables.
In the fourth cause of action for violation of the CPRA, section 6250 et
seq., Ashford alleged that she was entitled to a declaration that Midpeninsula
had violated the CPRA by failing to respond to her request that Midpeninsula
produce all public records relating to the RFP to operate the Bear Creek
Stables and the award of the contract to Chaparral.
The fifth cause of action for conversion and the sixth cause of action for
replevin were both based on Ashford’s new allegations that Midpeninsula had
taken possession of equestrian fencing that belonged to her and had refused
to return it. In the seventh cause of action for common counts Ashford
generally alleged without any specifics that Midpeninsula owed her for
9
money had and received. Ashford sought a declaration that the contract
awarded to Chaparral was void and monetary and punitive damages.
5. Demurrers to Second Amended Complaint
At the outset, Midpeninsula argued that its demurrers to all causes of
action in the complaint should be sustained without leave to amend on
procedural grounds because (1) the trial court’s July 7, 2023 order granted
leave to amend only the cause of action for retaliatory eviction, and Ashford
had failed to obtain leave to amend the complaint with six new causes of
action; (2) the proper procedure for challenging a public agency’s legislative
act of awarding a contract is a petition for writ of mandate under Code of
Civil Procedure section 1085, and, in any event, it was judicially noticeable
that Midpeninsula’s process for awarding the concessionaire agreement for
the Bear Creek Stables complied with the applicable rules governing
Midpeninsula’s award of competitively bid contracts, including Public
Resources Code, sections 5594 and 5538; and (3) the new causes of action
should be asserted in a supplemental complaint, not an amended complaint
pursuant to Code of Civil Procedure section 464, subdivision (a).
Midpeninsula also demurred on the substantive grounds that Ashford
failed to state facts sufficient for any cause of action. Regarding the first
cause of action for retaliatory eviction, Midpeninsula argued that Ashford
had not stated facts sufficient for an allegation of retaliation because it was
judicially noticeable that its board of directors’ decision to replace Ashford,
who had a month-to-month lease, as the concessionaire for Bear Creek
Stables was made at the August 24, 2022 board meeting, long before Ashford
filed her original complaint in this matter on November 23, 2022.
As to the second cause of action for violation of the state and federal
guarantees of equal protection, Midpeninsula contended that Ashford had
10
failed to state sufficient facts because she had not alleged that she was a
member of a protected class and had failed to show that she had a vested
fundamental right as a tenant to operate the Bear Creek Stables.
Midpeninsula contended that there was a rational basis for its decision to
award the concessionaire contract to Chaparral since it was judicially
noticeable that Midpeninsula’s decision was based on the applicable law and
the RFP process.
Midpeninsula also argued that Ashford had failed to state facts
sufficient for the third cause of action alleging a violation of due process.
Specifically, Midpeninsula asserted that procedural due process rights did
not attach to a public entity’s legislative acts. Further, substantive due
process did not apply because Ashford did not have a vested fundamental
property right as a tenant to operate the Bear Creek Stables that was
infringed upon, and it was judicially noticeable that Midpeninsula’s decision
and the RFP process were not arbitrary or unfair.
Ashford could not state a fourth cause of action for violation of the
CPRA, section 6250 et seq., Midpeninsula argued, because exhibits 3 and 4 to
the second amended complaint showed that the public records request to
Midpeninsula was made by a third person, not Ashford. Midpeninsula
asserted that it is well established that only the person or entity who made
the public records request has standing to seek a declaration regarding a
public entity’s obligation to disclose a document.
Regarding the fifth cause of action for conversion, the sixth cause of
action for replevin, and the seventh cause of action for common counts
(money had and received), Midpeninsula contended that all three causes of
action were barred pursuant to section 815, which abolished public entity
liability for common law torts. Alternatively, since the causes of action for
11
conversion, replevin, and common counts all arose from Ashford’s claim that
Midpeninsula had refused to return her equestrian fencing, Midpeninsula
argued that these were moot because the stipulation in the unlawful detainer
action resolved ownership of the fencing and the trial court in that action had
retained jurisdiction to enforce the stipulation. Alternatively, Midpeninsula
asserted that these causes of action, along with the cause of action for
retaliatory eviction, were barred because Ashford had failed to present a
timely written claim for money or damages to Midpeninsula, as required by
sections 911.2 and 945.4.
6. Opposition to Demurrers to Second Amended Complaint
Regarding Midpeninsula’s contention that her second amended
complaint was barred on procedural grounds, Ashford argued that she
properly added causes of action 5, 6, and 7, which concerned the equestrian
fencing, since her claims regarding the equestrian fencing did not arise until
after the second amended complaint was filed. Ashford also argued that her
new constitutional claims were intertwined with her claim for retaliatory
eviction and therefore were also properly included in the second amended
complaint. Alternatively, Ashford requested the trial court consider her
opposition as a request for permission to file the second amended complaint.
Ashford also argued that she had stated facts sufficient for all causes of
action in the second amended complaint. Although Ashford acknowledged
that she had raised retaliatory eviction as a defense in the unlawful detainer
action that has since been resolved, she argued that she could nevertheless
maintain her properly pleaded first cause of action for retaliatory eviction in
the present case.
Regarding the second cause of action for violation of equal protection,
Ashford maintained that she had stated sufficient facts for that cause of
12
action because she is a woman and “a strong inference deduced from the
[second amended complaint]’s allegations is that non-female stable operators,
who are also acquaintances with [Midpeninsula] will receive stable operating
contracts from [Midpeninsula].” Ashford also contended that she had a
vested interest in continuing to operate the Bear Creek Stables.
According to Ashford, she stated facts sufficient for the third cause of
action for denial of procedural due process, since she alleged that she had a
property interest, the RFP process was deficient and discriminatory, and she
had lost her business.
As to the fourth cause of action for violation of the CPRA, Ashford
argued that the CPRA provides that any person may make a public records
request, and therefore Ashford could enforce the inspection request to
Midpeninsula made by a third person who was her customer and a boarder at
the Bear Creek Stables.
Further, Ashford generally argued that she had submitted claims to
Midpeninsula that satisfied the claims presentation requirements of section
810. Ashford also contended that there was no governmental immunity for
conversion, and her fifth cause of action for conversion, sixth cause of action
for replevin, and seventh cause of action for replevin were sufficiently
pleaded.
7. Trial Court Order Sustaining Demurrers to Second Amended
Complaint
In an order filed on December 15, 2023, the trial court sustained the
demurrers to all causes of action in the second amended complaint without
leave to amend and granted Midpeninsula’s request for judicial notice. The
trial court stated that Ashford had not sought leave to amend her complaint
with the new causes of action and the demurrers could be sustained on that
13
ground alone. However, the trial court proceeded to rule on the merits as to
Midpeninsula’s demurrers to the new causes of action.
Regarding the first cause of action for retaliatory eviction, the trial
court determined that Ashford had failed to state facts sufficient for that
cause of action despite being granted leave to amend. The trial court ruled
that the allegations failed “to overcome the indisputable judicially noticeable
facts that (1) she was a month to month tenant that could have been asked to
leave at any time for any reason before [Midpeninsula] awarded the
concessionaire contract to Chaparral and (2) her complaints to
[Midpeninsula] came after it awarded the contract to Chaparral, which
award necessarily involved Ashford vacating the premises. To be clear:
[Midpeninsula] effectively told Ashford she would have to leave the premises
at the same time it told her the contract was being given to Chaparral, which
was before she made any of her complaints which she claims led to a
retaliatory eviction.” (Italics omitted.)
The trial court also ruled that Ashford had failed to state facts
sufficient for the second cause of action for violation of the constitutional
guarantees of equal protection. During argument at the hearing on the
demurrers, the trial court confirmed that Ashford did not claim that she was
a member of a protected class. The court also ruled that Ashford had failed to
allege that she was treated differently than other applicants and that “the
Constitution does not provide [Ashford] with a vested right to win a contract
in an open bidding process.” Similarly, the trial court ruled that Ashford had
failed to state facts sufficient for the third cause of action for denial of due
process, since she was a month-to-month tenant and had provided no
authority to support her claim that a long period of tenancy created a
constitutional right to maintain her tenancy.
14
As to the fourth cause of action for violation of the CPRA section 6250
et seq., the trial court ruled that Ashford had failed to overcome the judicially
noticeable fact that she had not made a public records request to
Midpeninsula, stating that the CPRA does not authorize enforcement of one
person’s inspection rights by another.
Finally, the trial court ruled that Midpeninsula, as a governmental
body, was immune from liability for the fifth cause of action for conversion,
the sixth cause of action for replevin, and the seventh cause of action for
common counts pursuant to section 815, since those causes of action were not
based on a statute. Additionally, the trial court determined that Ashford’s
claims with regard to Midpeninsula’s alleged retention of her equestrian
fencing should be addressed to the trial court in the unlawful detainer action,
since the parties had entered a stipulation in the unlawful detainer action
that addressed removal and ownership of the equestrian fencing and the
court retained jurisdiction to enforce the stipulation.
Based on these rulings, the trial court sustained Midpeninsula’s
demurrers to all causes of action in the second amended complaint without
leave to amend. The judgment dismissing the second amended complaint
was filed on January 9, 2024.
II. DISCUSSION
On appeal, Ashford contends that the trial court erred in sustaining the
demurrer to the first cause of action for violation of the Brown Act in the first
amended complaint without leave to amend. Ashford also contends that the
trial court erred in sustaining the demurrers to the causes of action in the
second amended complaint, including the first cause of action for retaliatory
eviction, the second cause of action for violation of the constitutional
guarantees of equal protection, the third cause of action for violation of the
15
constitutional guarantee of due process, the fifth cause of action for
conversion, the sixth cause of action for replevin, and the seventh cause of
action for common counts. Ashford does not seek review of the trial court’s
order sustaining the demurrer to the fourth cause of action for violation of the
CPRA.
We begin our evaluation of the contentions on appeal with the standard
of review applicable to a judgment of dismissal based upon an order
sustaining demurrers without leave to amend. Since the record reflects that
the trial court implicitly granted Ashford’s oral request to treat her
opposition to the demurrers to the second amended complaint as a request for
leave to amend the first amended complaint with the new causes of action,
we will review Ashford’s contentions of trial court error as to the second
amended complaint.
A. Standard of Review
We apply de novo review of an order of dismissal after a demurrer is
sustained without leave to amend. (Committee for Green Foothills v. Santa
Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) In performing our
independent review of the complaint, we assume the truth of all facts
properly pleaded by the plaintiff. (Evans v. City of Berkeley (2006) 38 Cal.4th
1, 6 (Evans).)
Additionally, “we give the complaint a reasonable interpretation, and
read it in context.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074,
1081 (Schifando).) However, we do not assume the truth of “ ‘ “contentions,
deductions or conclusions of fact or law.” ’ ” (Evans, supra, 38 Cal.4th at p. 6.)
We may also consider matters that are subject to judicial notice and facts
appearing in any exhibits attached to the complaint. (Code Civ. Proc,
§ 430.30, subd. (a); Schifando, at p. 1081.)
16
The California Supreme Court has instructed that “ ‘ “[a] complaint
otherwise good on its face is subject to demurrer when facts judicially noticed
render it defective.” [Citation.]’ [Citation]; see Code Civ. Proc., § 430.30,
subd. (a).)” (Evans, supra, 38 Cal.4th at p. 6.) Judicial notice may be taken
of “[f]acts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) “[W]hen the
allegations of the complaint contradict or are inconsistent with such facts, we
accept the latter and reject the former.” (Blatty v. New York Times Co. (1986)
42 Cal.3d 1033, 1040 (Blatty).) However, “[w]hen judicial notice is taken of a
document . . . the truthfulness and proper interpretation of the document are
disputable.” (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn.
9.)
B. Brown Act
Ashford contends that the trial court erred in sustaining the demurrer
to the first cause of action for violation of the Brown Act in the first amended
complaint because the allegations were sufficient to give notice of the claimed
Brown Act violations. Ashford also argues that her cure or correct letter
satisfied the section 54960.1 criteria for a prelitigation demand.
Midpeninsula responds that Ashford’s cure or correct demand letter
was inadequate because it did not provide the required description of the
alleged Brown Act violations. Alternatively, Midpeninsula asserts that the
allegations of Brown Act violations are conclusory and therefore insufficient
to state a cause of action.
The Brown Act “provides that all meetings of ‘the legislative body of a
local agency shall be open and public,’ except as otherwise provided in the
17
Act. (§ 54953.)” (Freedom Newspapers, Inc. v. Orange County Employees
Retirement System (1992) 6 Cal.4th 821, 823.)
“A person alleging a legislative body has violated the open meeting
requirements of section 54953 may bring suit to have an action taken in
violation of section 54953 declared null and void. Specifically, section
54960.1, subdivision (a) states, ‘The district attorney or any interested person
may commence an action by mandamus or injunction for the purpose of
obtaining a judicial determination that an action taken by a legislative body
of a local agency in violation of [s]ection 54953 [or other enumerated
provisions] . . . is null and void under this section.’ (§ 54960.1, subd. (a).)”
(Burton v. Campbell (2024) 106 Cal.App.5th 953, 962, fn. omitted (Burton).)
“However, as set forth in section 54960.1, subdivision (b), before suit is
filed, a demand to cure and correct must be made: ‘Prior to any action being
commenced pursuant to subdivision (a), the district attorney or interested
person shall make a demand of the legislative body to cure or correct the
action. . . . The demand shall be in writing and clearly describe the
challenged action of the legislative body and nature of the alleged violation.’
(§ 54960.1, subd. (b).)” (Burton, supra, 106 Cal.App.5th at p. 962.) The
prerequisite of a written demand to cure or correct allows the legislative body
to cure or correct violations of the Brown Act’s opening meeting requirements
and thereby obtain dismissal of the action alleging the violations. (§ 54960.1,
subd. (e).)
Thus, “ ‘[t]o state a cause of action, a complaint based on [section]
54960.1 must allege: (1) that a legislative body of a local agency violated one
or more enumerated Brown Act statutes; (2) that there was ‘action taken’ by
the local legislative body in connection with the violation; and (3) that before
commencing the action, plaintiff made a timely demand of the legislative
18
body to cure or correct the action alleged to have been taken in violation of
the enumerated statutes, and the legislative body did not cure or correct the
challenged action.’ ” (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th
672, 684.)
In the present case, Ashford attached the October 28, 2022 letter to
Midpeninsula with her demand to cure or correct Brown Act violations as an
exhibit to her first amended complaint. In pertinent part, the letter states:
“This letter is to call your attention to what my client, Pamela Ashford,
believes was a substantial violation of a central provision of the Ralph M.
Brown Act, one which may jeopardize the finality of the action taken by
[Midpeninsula]. In its meetings of September 24, 2022, October 26, 2022 and
August 24, 2022, the [b]oard of [d]irectors for [Midpeninsula] awarded a
public contract for the operation of a ‘qualified horse stable [c]oncessionaire to
provide horse stable management and equestrian programs at Bear Creek
Redwoods Stable Facility . . . to Chaparral County Corporation. [¶] In so
doing, [Midpeninsula] took ‘action’ as defined in [Government] Code [section]
54952.6 . . .. The action violated the Brown Act because it disregarded the
competitive bidding process and the justification for the award of the contract
to Chaparral were not properly discussed in an open session of
[Midpeninsula] and/or [b]oard of [d]irectors.” (Italics omitted.)
We agree with the trial court that the October 28, 2022 letter did not
satisfy the statutory prerequisite of a written demand to cure or correct
because the letter does not “clearly describe the challenged action of the
legislative body and nature of the alleged violation.” (§ 54960.1, subd. (b).)
The letter claims that Midpeninsula violated of the Brown Act’s open meeting
requirements because the board of directors (1) disregarded the competitive
bidding process; and (2) “the justification for the award of the contract to
19
Chaparral were not properly discussed in an open session of [Midpeninsula]
and/or [b]oard of [d]irectors.” However, these two claims do not satisfy the
section 54960.1, subdivision (b) requirement for a prelitigation demand letter.
First, the claimed disregard of the competitive bidding process does not
describe a violation of the Brown Act’s open meeting requirements. Second,
the phrase “the justification for the award of the contract to Chaparral was
not properly discussed in an open session” is vague and does not inform
Midpeninsula how to cure or correct the alleged lack of a proper discussion of
the decision to award the contract to Chaparral.
Since the October 28, 2022 letter does not clearly describe the nature of
Brown Act violations such that Midpeninsula would have been able to correct
the violations, the letter does not satisfy the section 54960.1, subdivision (b)
prerequisite of a prelitigation demand to cure or correct. Accordingly,
Ashford failed to state facts sufficient for a cause of action alleging a violation
of the Brown Act opening meeting requirements, and the trial court did not
err in sustaining the demurrer to that cause of action without leave to
amend.
C. Retaliatory Eviction
The trial court sustained the demurrer to the first cause of action in the
second amended complaint for retaliatory eviction because it was judicially
noticeable that on August 24, 2022, Midpeninsula “effectively told Ashford
she would have to leave the premises at the same time it told her the contract
was being given to Chaparral, which was before she made any of her
complaints which she claims led to a retaliatory eviction.”
Ashford contends that the trial court erred because she alleged the
“necessary elements” of a cause of action for retaliatory eviction.
Midpeninsula disagrees, arguing that the judicially noticeable facts show
20
that Midpeninsula made the decision to replace Ashford as the concessionaire
for the Bear Creek Stables “well in advance” of the filing of the instant action
and the unlawful detainer action.
“The retaliatory eviction doctrine is founded on the premise that ‘[a]
landlord may normally evict a tenant for any reason or for no reason at all,
but he may not evict for an improper reason.’ ” (Barela v. Superior Court
(1981) 30 Cal.3d 244, 249.) Retaliatory eviction may be asserted as a cause of
action as well as a defense in an unlawful detainer action. (Rich v. Schwab
(1998) 63 Cal.App.4th 803, 810.)
Ashford alleges that Midpeninsula evicted her in retaliation for
complaining in August and September 2022 that Midpeninsula had
committed “improprieties” in the selection process for the award of the
contract for the Bear Creek Stables, sending an October 2022 letter
complaining of Midpeninsula’s Brown Act violations, and filing the November
2022 original complaint in this matter. However, Ashford has not overcome
the judicially noticeable fact that Midpeninsula’s August 24, 2022 decision to
select Chaparral as the concessionaire for the Bear Creek Stables necessarily
included the termination of Ashford’s month to month tenancy as interim
stable manager. Despite being given the opportunity to amend the cause of
action for retaliatory eviction, Ashford has failed to allege that she made any
complaints to Midpeninsula, claimed Brown Act violations, or filed a lawsuit
against Midpeninsula prior to Midpeninsula’s decision to choose Chaparral as
the new concessionaire for the Bear Creek Stables. Accordingly, we decide
that the trial court did not err in sustaining Midpeninsula’s demurrer to the
first cause of action for retaliatory eviction without leave to amend because
Ashford has not, and cannot, allege her tenancy was terminated due to
retaliation by Midpeninsula.
21
D. Equal Protection
The trial court sustained the demurrer to the second cause of action in
the second amended complaint for violation of the constitutional right to
equal protection on the ground that Ashford had failed to allege that she was
treated differently than other applicants and “the Constitution does not
provide [Ashford] with a vested right to win a contract in an open bidding
process.”
According to Ashford, the trial court erred because the allegations in
the second amended complaint are sufficient since “a strong inference
deduced from the [second amended complaint]’s allegations is that non-
female stable operators, who are also acquaintances with [Midpeninsula],
will receive stable operating contracts from [Midpeninsula].” Ashford also
maintains that she has sufficiently alleged disparate treatment due to her
gender allegations throughout the second amended complaint.
Midpeninsula responds that Ashford has not stated facts sufficient for a
cause of action for violation of the right to equal protection because she has
not alleged that she received unequal treatment based on her membership in
a protected class.
The federal equal protection clause (U.S. Const., 14th Amend.) and the
California equal protection clause (Cal. Const., art. I, § 7, subd. (a)) both
provide that all persons similarly situated should be treated alike. (See
Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439.) “ ‘Equal
protection challenges typically involve claims of discrimination against an
identifiable class or group of persons. The United States Supreme Court in
Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564 . . ., however, held
that a plaintiff who does not allege membership in a class or group may state
22
a claim as a “ ‘class of one.’ ” ’ ” (California Resources Production Corp. v.
Antioch City Council (2025) 107 Cal.App.5th 481, 489–490.)
“To succeed on a class of one claim, a plaintiff must establish that ‘(1)
the plaintiff was treated differently from other similarly situated persons, (2)
the difference in treatment was intentional, and (3) there was no rational
basis for the difference in treatment.’ ” (Gerawan Farming, Inc. v.
Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1144.)
In her second amended complaint, Ashford alleges that Midpeninsula
violated her constitutional right to equal protection because a “dispute
between Ashford and [Midpeninsula] resulted in [Midpeninsula] treating
Ashford differently from similarly situated applicants in the RFP process for
the [c]ontract at the [s]tables.” On appeal, Ashford additionally argues that
her allegations are sufficient to permit an inference that she was treated
differently than other similarly situated applicants for the Bear Creek
Stables concessionaire contract due to her female gender. Ashford further
contends that she is a female and therefore a member of a protected class,
and it may be inferred that non-female stable operators will receive stable
operating contracts from Midpeninsula.
We decide that these allegations are insufficient to state a cause of
action for violation of the constitutional right to equal protection. The
allegations of disparate treatment and gender discrimination are either
wholly conclusory or rely on conclusory allegations from which a reasonable
inference of disparate treatment cannot be drawn. Ashford fails to
specifically allege any disparate treatment or gender discrimination that
caused her to be ranked second in the selection process for the Bear Creek
Stables concessionaire contract. (See Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 883 [court assumes truth of reasonable
23
allegations]; Evans, supra, 38 Cal.4th at p. 6 [court does not assume the truth
of conclusions of fact].)
For these reasons, we decide that the trial court did not err in
sustaining the demurrer to the second cause of action for violation of the
constitutional right to equal protection.
E. Denial of Due Process
The trial court ruled that Ashford had failed to state facts sufficient for
the third cause of action in the second amended complaint for denial of due
process, since she was a month-to-month tenant and had provided no
authority to support her claim that a long period of tenancy created a
constitutional right to maintain her tenancy. The court sustained
Midpeninsula’s demurrer without leave to amend.
On appeal, Ashford contends that the trial court erred because she
pleaded a valid cause of action for violation of the constitutional right to due
process since she had “a vested property interest in the continued operation
of the [s]tables.”
Midpeninsula responds that procedural due process does not attach to
legislative acts, including a public entity’s award of a contract. As to
substantive due process, Midpeninsula argues that Ashford cannot state a
claim for violation of the constitutional right to substantive due process
because there is no authority for the proposition that Ashford had a
fundamental right to prevail in Midpeninsula’s RFP process and continue her
stable business on leased public property.
We agree with Midpeninsula that Ashford cannot state a cause of
action for violation of the constitutional right to procedural due process. As
this court has stated, “ ‘only those governmental decisions which are
adjudicative in nature are subject to procedural due process principles.
24
Legislative action is not burdened by such requirements.’ [Citation.] While
an adjudicative governmental action often ‘requires the procedural due
process standards of reasonable notice and opportunity to be heard[,] . . .
[l]egislative action generally is not governed by these procedural due process
requirements because it is not practical that everyone should have a direct
voice in legislative decisions.’ ” (Hobbs v. City of Pacific Grove (2022) 85
Cal.App.5th 311, 322 (Hobbs).) “A public entity’s ‘award of a contract, and all
of the acts leading up to the award, are legislative in character.’ ” (Mike
Moore’s 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294,
1303.)
Turning to Ashford’s claim based on substantive due process, “[t]he
‘ “substantive” ’ component of the due process clause protects rights that ‘are
“so rooted in the traditions and conscience of our people as to be ranked as
fundamental,” and therefore cannot be deprived without compelling
justification.’ ” (Hobbs, supra, 85 Cal.App.5th at p. 326, quoting Obergefell v.
Hodges (2015) 576 U.S. 644, 694–695.) “[C]ases both before and after [County
of Sacramento v. Lewis (1998) 523 U.S 833] have affirmed . . ., the principle
that the arbitrary government conduct that triggers a substantive due
process violation is not ordinary government error but conduct that is in some
sense outrageous or egregious—a true abuse of power.” (Galland v. City of
Clovis (2001) 24 Cal.4th 1003, 1032.)
Benn v. County of Los Angeles (2007) 150 Cal.App.4th 478 (Benn) is
instructive to our evaluation of whether Ashford has stated facts sufficient for
a cause of action for violation of substantive due process. In Benn, the
plaintiff Angelica Group Homes, a nonprofit corporation, entered into
contracts with the County of Los Angeles to provide group home foster care.
(Id. at p. 484.) After conducting audits that revealed a number of
25
deficiencies, the County of Los Angeles placed Angelica Group Homes on “Do
Not Refer” status pursuant to the terms of the parties’ contract. (Id. at
pp. 484–486.) Angelica Group Homes then brought an action against the
County of Los Angeles that “alleged violations of substantive due process by
the County’s arbitrary and capricious action in imposing the ‘Do Not Refer’
directive, thereby depriving [Angelica Group Homes] of its protected property
interest in its contracts with the County.” (Id. at p. 487.)
On appeal from summary judgment, the Benn court rejected Angelica
Group Homes’ contention that “its contracts with the County gave it a
reasonable expectation of an entitlement to continued foster children
placements and thus a protected property interest in continued funding from
the County.” (Benn, supra, 150 Cal.App.4th at p. 489.) The court ruled that
“ ‘[t]wo general types of contract rights are recognized as property protected
under the Fourteenth Amendment: (1) where “the contract confers a
protected status, such as those ‘characterized by a quality of either extreme
dependence in the case of welfare benefits, or permanence in the case of
tenure, or sometimes both, as frequently occurs in the case of social security
benefits’ ”; or (2) where “the contract itself includes a provision that the state
entity can terminate the contract only for cause.’ ” (Id. at p. 490.)
The Benn court concluded that Angelica Group Homes did not have a
protected property right in its contracts with the County of Los Angeles
because “[Angelica Group Homes] had a contract to supply services to the
County. Neither the contract’s subject matter nor its terms provide the
requisite degree of permanence as a contract for tenure or employment for a
term of years might. Most significantly, the contract contains no provision
stating it could only be terminated for cause.” (Benn, supra, 150 Cal.App.4th
at p. 490, fn. omitted.)
26
We reach a similar conclusion in the present case. In 2015,
Midpeninsula’s board of directors approved the assignment of the Bear Creek
Stables month-to-month rental agreement to Ashford as the interim manager
of the stables. The terms of Ashford’s rental agreement were therefore
temporary and could not confer a degree of permanence or a quality of
extreme dependence. (See Benn, supra, 150 Cal.App.4th at p. 490.)
Accordingly, Ashford cannot state a cause of action for violation of
substantive due process based on her rental agreement with Midpeninsula.
Ashford’s reliance on the decision in Goat Hill Tavern v. City of Costa
Mesa (1992) 6 Cal.App.4th 1519 (Goat Hill) is misplaced. The issue in Goat
Hill was whether the owner of the Goat Hill Tavern had a vested
fundamental right to continue to operate the tavern that the City of Costa
Mesa violated when it denied the owner’s application for renewal of the
tavern’s conditional use permit. (Id. at p. 1522.) The appellate court ruled
that “[b]y simply denying renewal of its conditional use permit, the city
destroyed a business which has operated legally for 35 years. The action
implicates a fundamental vested right of the property owner.” (Id. at
p. 1531.)
However, the appellate court also stated that “[t]he grant or denial of a
conditional use permit is an administrative or quasi-judicial act.” (Goat Hill,
supra, 6 Cal.App.4th at p. 1525.) The decision in Goat Hill is therefore
distinguishable since the underlying facts did not involve a public entity’s
legislative act in awarding a contract, as was the case here. Moreover, the
appellate court emphasized that the Goat Hill Tavern had operated legally
for 35 years, in contrast to Ashford’s temporary operation of the Bear Creek
Stables on a month-to-month lease as interim manager.
27
Accordingly, we decide that the trial court did not err in sustaining the
demurrer to the third cause of action for denial of due process without leave
to amend.
F. Conversion, Replevin, and Common Counts
Ashford contends that the trial court erred in sustaining the demurrers
to the fifth cause of action for conversion, the sixth cause of action for
replevin, and the seventh cause of action for common counts on the grounds
that Midpeninsula, as a governmental body, was immune from liability
pursuant to section 815. According to Ashford, her claims are not barred by
section 815 because she alleges that Midpeninsula has wrongfully taken her
equestrian fencing for a public use in violation of the takings clause. (Cal.
Const., art I, § 19.) Ashford also contends that the trial court erred in
sustaining the demurrer on the alternative ground that the parties had
entered a stipulation in the unlawful detainer action that addressed removal
of the equestrian fencing.
Midpeninsula maintains that the trial court did not err in ruling that
Midpeninsula has governmental immunity from liability for common law
torts pursuant to section 815, including conversion, common counts, and
replevin. Additionally, Midpeninsula argues that since the causes of action
for conversion, common counts, and replevin all derive from Ashford’s
allegations regarding the equestrian fencing, the trial court properly ruled
that these claims were resolved by the parties’ stipulation in the unlawful
detainer action, and, in any event, the stipulation has rendered Ashford’s
claims moot because she left the equestrian fencing in place after the time
stipulated for removal.
On appeal, Ashford concedes that her “conversion-related claims apply
to [Midpeninsula]’s wrongful taking of Ashford’s equestrian fencing at the
28
[s]tables.” The concession is significant because the parties’ May 19, 2023
stipulation and order in the unlawful detainer action, of which the trial court
took judicial notice, included Ashford’s agreement to remove her personal
property, including her equestrian fencing, as follows: “The schedule for
removal of [Ashford]’s personal property from the [s]ubject [p]roperty shall be
restricted to the following dates and times: June 3, 4, 10 and 11, during the
hours of 9:00 [a.m.] through 5:00 [p.m.], except as this schedule is modified by
prior written agreement between the parties. With respect to removal of the
metal pipe panel fencing, [Ashford] shall notify [Midpeninsula] in advance by
email at least 24 hours of its removal. The email addresses for purposes of
this notification are . . ..”
The stipulation and order in the unlawful detainer action also included
Ashford’s agreement that “[a]ny of [Ashford]’s personal property that remains
at the [s]ubject [p]roperty after June 15, 2023, shall be deemed
[Midpeninsula]’s property.” The stipulation further provided that “[t]he
[c]ourt shall retain jurisdiction over the parties to enforce the [s]tipulation
herein until performance in full of its terms pursuant to Code of Civil
Procedure section 664.6.”
Thus, it is a judicially noticeable fact that Ashford stipulated that she
would remove the equestrian fencing from Bear Creek Stables by June 15,
2023, and that if she failed to do so, the fencing would become the property of
Midpeninsula. Ashford filed the second amended complaint in July 2023
alleging that Midpeninsula had refused her access to recover her equestrian
fencing. But Ashford’s pleading is notably silent as to whether the alleged
denial of access was before the deadline (when the stipulation permitted
Ashford to recover the fencing) or after the deadline (when the stipulation
entitled Midpeninsula to keep it). Although an amendment might at least in
29
theory cure this defect, Ashford’s counsel conceded at oral argument that the
alleged denial of access occurred only after the stipulated deadline of June 15,
2023. The allegations are also inconsistent with the fact that Ashford
stipulated that the remedy for enforcing the terms of the stipulation, such as
Midpeninsula’s alleged refusal to return the equestrian fencing, would be to
return to the trial court in the unlawful detainer action.
Our standard of review provides that judicial notice may be taken of
“[f]acts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) “[W]hen
the allegations of the complaint contradict or are inconsistent with such facts,
we accept the latter and reject the former.” (Blatty, supra, 42 Cal.3d at
p. 1040.) Since Ashford’s allegations in the July 2023 second amended
complaint—that Midpeninsula has refused to return the equestrian fencing—
are inconsistent with the terms of the stipulation and order in the unlawful
detainer action that are not reasonably subject to dispute, we accept as fact
that the equestrian fencing would become Midpeninsula’s property in June
2023 if not removed. (See ibid.)
We decide that the trial court did not err in sustaining the demurrer to
the fifth cause of action for conversion, the sixth cause of action for replevin,
and the seventh cause of action for common counts. We are not persuaded by
Ashford’s argument that unlawful detainer actions have only limited res
judicata effect. We have not decided that these causes of action are subject to
demurrer on the ground of res judicata; instead, we conclude that the
allegations that Midpeninsula refused to return the equestrian fencing are
inconsistent with Ashford’s stipulations in the unlawful detainer action
pertaining to the equestrian fencing that are not reasonably subject to
30
dispute. Having reached this conclusion, we need not address Midpeninsula’s
contention that these causes of action are barred by governmental immunity
pursuant to section 815.
G. Leave to Amend
Where, as here, the trial court did not grant leave to amend, we review
that ruling for abuse of discretion. (Schifando, supra, 31 Cal.4th at p. 1081.)
“The plaintiff has the burden of proving that an amendment would cure the
defect.” (Ibid.) “[L]eave to amend is properly granted where resolution of the
legal issue[] does not foreclose the possibility that the plaintiff may supply
necessary factual allegations. [Citation.] If the plaintiff has not had an
opportunity to amend the complaint in response to the demurrer, leave to
amend is liberally allowed as a matter of fairness, unless the complaint
shows on its face that it is incapable of amendment.” (City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 747.)
We have concluded that the trial court properly sustained the
demurrers of Midpeninsula to the causes of action in the second amended
complaint. We further conclude that the trial court did not abuse its
discretion in denying leave to amend. In the absence of any argument in
support of her request for leave to amend, Ashford has not met her burden to
show how the complaint could be amended to cure its defects. (Schifando,
supra, 31 Cal.4th at p. 1081.)
III. DISPOSITION
The July 7, 2023 order sustaining the demurrers to causes of action 1
through 6 in the first amended complaint without leave to amend is affirmed.
The January 9, 2024 judgment dismissing the second amended complaint is
affirmed. Costs on appeal are awarded to respondent.
31
______________________________________
Danner, Acting P. J.
WE CONCUR:
____________________________________
Lie, J.
____________________________________
Wilson, J.
H051856
Ashford v. Midpeninsula Regional Open Space District