Joe Ribakoff v. City of Long Beach, et al.

Joe Ribakoff, a frequent attendee at meetings of the Long

Beach Transit Company Board of Directors, filled out a public

speaker’s card and spoke on agenda item 10 at the board’s

August 24, 2015 meeting for the three minutes allowed each

public speaker on an agenda item. When he rose to speak a

second time on the same agenda item, it was during the board’s

deliberation and voting period. He was not permitted to speak,

and, after a short exchange with the chair of the board, left the

speaker’s podium with the verbal assistance of a Long Beach

Police Officer who routinely provided security for meetings.

Later, Ribakoff filed this action, asking that we reverse the trial

court and determine that the board’s three-minute limit on public

speakers is contrary to state statutes and federal and state free

speech principles. We find neither statutory nor constitutional

violations, and affirm.

FACTUAL BACKGROUND

The cause was tried to the court on August 5 and 8, 2015.

I. Plaintiff’s Case-in-chief

Debra Anne Johnson (Johnson), the Deputy Chief

Executive Officer of the Long Beach Public Transportation

Company (LBTC), has worked for the LBTC since May 2014. She

is familiar with its bylaws and has attended every board meeting

while an employee of LBTC. The LBTC is managed by a board of

directors (Board). At the beginning of the public comment section

of each meeting of the Board, the Board chair “generally

describes the process in which public comment will be accepted,”

including the rules to be followed. Johnson is not aware of any

3

criminal laws being “enforced” at a meeting of the Board; nor

does she recall being present at a meeting at which the Board

voted on amending its rules on comments from the public.

Typically, there are one or two members of the public who

address the Board, either on an item on the agenda, or in the

section of its meetings reserved for general comments by

members of the public. The greatest number of members of the

public who have spoken at a meeting is five. In only two

instances that she recalls has there been “disturbing speech,”

which she described as a member of the public speaking for more

than the allotted three minutes. On these occasions, the Board

concluded its business notwithstanding the interruptions.

The Board held its regular monthly meeting on August 24,

2015, in the Long Beach City Council Council Chamber. Item 10

on the agenda that day concerned coordinating transit fares with

other providers of transit services in Los Angeles County by

adoption of the transit access program (utilizing “TAP cards”) for

patrons of the Long Beach Transit System buses to coordinate

with bus service offered to patrons of other public transit services

in Los Angeles County.

Ribakoff was in attendance, as had been his practice during

the preceding two-and-a-half years. Prior to speaking that

afternoon, Ribakoff had filled out the card required of all

members of the public who wished to address the Board. The

card contained a statement that the speaker would have three

minutes in which to address the Board. Also, prior to Ribakoff

speaking, the Board secretary advised him that he would have

three minutes to address the Board on item 10. Staff members of

the Board, and others invited to speak on item 10, addressed the

Board concerning the item before and after Ribakoff; they were

4

not limited to three minutes each. Thereafter, the Board began

consideration of the matter, with the chair of the Board asking

for “further discussion” among members of the Board, to be

followed by the Board voting on the matter. Although this

statement by the chair was directed to members of the Board,

Ribakoff approached the podium in the meeting room and asked

for permission to speak a second time regarding item 10. The

chair declined Ribakoff’s request and asked Ribakoff to leave the

podium and return to his seat. Counsel for the Board advised

that Ribakoff had used all of the time allocated to him to address

the Board on this agenda item, but that the Board could allow

him additional time if it wished to do so. Although he was not

granted additional time, Ribakoff insisted that he be allowed to

speak. There followed a verbal exchange between him and the

chair, with each talking over the other. Either at the beginning

or during this exchange with the Board chair, Ribakoff moved

from behind the podium and appeared to approach the dais. To

Johnson, the chair became uncomfortable. Another Board

member went to get a City of Long Beach police officer, who

appeared and approached Ribakoff. The officer and Ribakoff had

a conversation, which Johnson did not hear. Following that

conversation, the officer and Ribakoff left the podium area.1

Johnson recalled considering Ribakoff’s actions to be disturbing

because the rules for public speakers, which he violated, had been

clearly stated.



1 After Johnson testified, a video containing the entirety and

excerpts of the proceedings before the Board at its August 24,

2015 meeting was played for the court. The only record of what

appeared on the video is in the “Statement of Tentative Decision,”

which is discussed, post, in footnote 27.

5

II. Ribakoff’s Testimony

Ribakoff had been attending meetings of the Board for over

two-and-a-half years as an interested citizen. In his view, public

transportation is “poor transportation for poor people” and there

is considerable need to improve it. During the years he has been

attending meetings, all of the public speakers have respected the

three-minute rule. There has never been a meeting delayed by a

disturbance created by a member of the public who speaks at a

meeting.

Ribakoff signed up to speak at the August 24, 2015 Board

meeting. He had read the agenda for the meeting online prior to

the meeting and decided to attend as, in his view, most members

of the public in Long Beach did not have access to locations where

TAP cards could be purchased. His intent was to bring to the

attention of the Board what he believed to be the difficulty in

purchasing TAP cards.

He recalled the meeting that day lasted approximately two

hours. With respect to item 10, staff members and

representatives of the Los Angeles County Metropolitan Transit

Authority, who had been invited by the Board to do so, testified.

When it was time for public comment on item 10, Ribakoff spoke

for three minutes, but had not finished what he wanted to say

when his time expired. He was the only speaker to criticize the

program. After he spoke and had returned to his seat, another

speaker disagreed with his statement on lack of availability of

TAP cards. Ribakoff rose to speak a second time because he

wanted to dispute the facts as presented by that speaker.

However, he was not permitted to speak; his microphone was cut

off; and he was invited to speak with the Board’s staff after the

meeting. When he got to his seat, he was approached by a police

6

officer who ordered him out of the room under threat of arrest. A

few minutes later, he returned to the meeting; moments

thereafter the Board voted on item 10.

At the conclusion of the meeting, Ribakoff left the meeting

room and was approached by the same police officer, who told

him that if he spoke out of turn again he would certainly be

arrested. The officer cited Long Beach Municipal Code (LBMC)

2.03.140, also writing that code section on the back of one of his

business cards which he handed to Ribakoff. Ribakoff has not

returned to Board meetings since then because he does not want

to be arrested on what he considers to be a “really vague and

improper law.”

He later attempted to meet with individual Board

members, but was denied contact information for them. He sent

a letter to the Board secretary for distribution to members.

Following that, he met with one Board member who told him she

had never received his letter. In his view, it is pointless to speak

with staff.

In September 2015, Ribakoff spoke by telephone with the

general counsel of the Board, who had been present at the August

meeting, following up on that conversation with a letter in which

Ribakoff made several requests, including that, as an “interim

rule,” “if there are no more than [two] public speakers, . . . each of

them [would have] up to [five] minutes to speak.” He also

described the extant rule for public speakers as

“unconstitutional.”

The Board’s general counsel responded by letter on

September 22, 2015, advising Ribakoff that the Board’s rules for

public speakers were available online, would be printed on the

card that persons wishing to speak would fill out when

7

requesting time to speak at a Board meeting, and were available

with the Board agenda for its meetings; the general counsel also

forwarded a copy of the revised speakers policy, entitled

“Information and Procedures Concerning Conduct at Board of

Directors’ Meetings.” The three-minute limit for each speaker

was not changed.

On cross-examination, Ribakoff acknowledged he had filled

out a speaker’s card, containing the following notice: “Comments

shall be limited to three (3) minutes for all comments, unless

different time limits are set by the Chairperson, subject to the

approval of the Board.”

Ribakoff also acknowledged having spoken for three

minutes on item 10. When he approached the podium later and

asked to speak again, he acknowledged that his request was

denied. In his view, the Board chair interrupted him; he was

trying to speak but his microphone was cut off. Ribakoff

acknowledged he had not filed a claim, either with the City of

Long Beach or with the Board, prior to filing his lawsuit.

III. Defense Case-in-chief

Amy Bodek is the Director of Development Services for the

City of Long Beach. Her responsibilities include overseeing

planning, building code enforcement, and administration. At the

time of these events she was serving as one of the city’s two

representatives on the Board. Bodek was present at the meeting

of the Board on August 24, 2015, which she described as lengthy.

After the Board had had a discussion on item 10 and the chair

called for a vote, Ribakoff, whom she recalled had spoken earlier

for the length of time allocated to each speaker, attempted to

speak again. As he did so, the Board chair “counsel[ed]” him that

8

he had already spoken for his allotted time. Ribakoff again

attempted to speak and the chair told him that his opportunity

had passed. Ribakoff continued to try to speak, and, when the

chair attempted to speak, he interrupted her. At this point,

Bodek got up from her seat and went to get a security guard. In

the City of Long Beach there is a uniform rule that allows each

speaker three minutes to speak on a matter at any public

meeting.

On cross-examination, Bodek testified that staff members

are not subject to the rule limiting speakers to three minutes.

During the approximately two-and-a-half years she has been

attending Board meetings, the number of members of the public

who speak varies; within the last six months there was one

meeting at which five people made public comments on an

agenda item. There was a single occasion on which a speaker

was disruptive in the sense of not complying with the time limits.

In Bodek’s opinion, a public speaker who is being argumentative

during his or her time addressing the Board is not being

disruptive. In her view, being disruptive includes attempting to

speak beyond the allotted three minutes. At the August 2015

meeting there was a disruption of between five to six minutes

that delayed the vote on an agenda item.

PROCEDURAL HISTORY

On February 11, 2016, Ribakoff filed a civil complaint

against the Board, the City of Long Beach, and others,2 in which



2 Ribakoff sued the City of Long Beach, the Long Beach

Transit Company, the LBTC, the LBTC Board of Directors, and

Does 1 to 20, inclusive. The City of Long Beach is the sole

9

he alleged violations of the Tom Bane Civil Rights Act (the Bane

Act; Civ. Code, § 52.1) and the Ralph M. Brown Act (the Brown

Act; Gov. Code, § 54950, et seq.), of his right to freedom of speech

as guaranteed by the United States and California Constitutions

(U.S. Const., 1st Amend., cl. 3; Cal. Const., art. I, § 2), and of a

violation of procedural requirements relating to the Brown Act

contained in article I, section 3, subdivision (b)(7) of the

California Constitution. He also alleged that LBMC 2.03.140 is

“overbroad[,] vague . . . not . . . reasonable[,] . . . not content

neutral, and . . . a prior restraint.”3 He sought declaratory and



shareholder of the Long Beach Transit Company. All defendants

presented a common defense.

3 Although Ribakoff also alleged a violation of Civil Code

section 52, that citation was inapt as section 52 is part of a

different statutory plan, the Unruh Civil Rights Act (Civ. Code,

§ 51 et seq.), which proscribes specified conduct by business

establishments. (See Stamps v. Superior Court (2006) 136

Cal.App.4th 1441, 1450-1451 and accompanying footnotes.) His

claim for punitive damages under Civil Code section 52,

subdivision (b)(1) was linked to this erroneous Unruh Civil

Rights Act allegation.

Ribakoff alleged, but presented neither fact nor cogent

argument to support, a violation of Government Code section

54953, subdivision (a), which requires that “[a]ll meetings of the

legislative body of a local agency shall be open and public, and all

persons shall be permitted to attend any meeting of [that body,

with exceptions as provided].” Nor is there any cogent discussion

of this claim in his opening brief on appeal. We therefore deem

this claim waived. (Reyes v. Kosha (1998) 65 Cal.App.4th 451,

466, fn. 6; Tan v. California Fed. Sav. & Loan Assn. (1983) 140

Cal.App.3d 800, 811.)

10

injunctive relief, monetary relief in an unspecified amount, a civil

penalty of $25,000, and attorney fees.

Ribakoff’s complaint also alleged the Board had two

“speech code rules” governing public meetings, each of which was

enacted without public hearing or debate. He alleged the first

such code, in effect at the time of the August 24, 2015 meeting,

applied only to “public comment speakers” (as distinct from

Board members, staff members, and invited guests, none of

whom was subject to time limits in addressing the Board) and

was strictly enforced: Speakers exceeding the three-minute limit

were labeled disruptive, and expelled from the meeting “on pain

of arrest under LBMC 2.03.140.”

Ribakoff alleged the rules applicable to public comment

speakers were changed, again allegedly without vote of the Board

and “without findings demonstrating the interest protected by

[these rules] and the need for protecting that interest.” The

newer speech code, which Ribakoff attached to his complaint, is

headed “Information and Procedures Concerning Conduct at

Board of Directors’ Meetings.” This speech code allows up to

three minutes for each member of the public to speak on an

agenda item. If adjustment is required based on the total time

allotted for public comment and the number of speakers, Ribakoff

alleged the time allotted to each speaker is reduced.4 No time

limit is stated in the code for staff members to address the Board.

Ribakoff also alleged the new code allows the Board chair to



4 This provision reads: “Three-minute time limit for each

speaker unless the Board specifies a different time limit based on

the time allotted for the item and the number of speakers.”

11

“censor and even remove a member of the public . . . if [the chair]

decides that you are ‘rude, boisterous, or profane . . . .’”5

Ribakoff alleged each version of the speech code constitutes

a “content based prior restraint.”

Addressing his particular circumstances, Ribakoff alleged

he was present at the September 29, 20156 meeting of the Board,

spoke in opposition to item 10, and was not allowed to speak later

in the meeting. Ribakoff also alleged no other speaker spoke in

opposition and that several Board members spoke without time

restriction, as did persons invited to the meeting by the Board

and as did staff to the Board.

Ribakoff filed motions for preliminary injunction on

March 9 and March 21, 2016. On April 1, the trial court

continued these motions to April 21 and set the final status

conference and trial dates. Following a hearing on the motions

for preliminary injunction, the court took the matters under

submission, denying them on April 26, 2016.

Defendants filed their answer on April 7, 2016, denying all

allegations and asserting several affirmative defenses, including



5 This provision of the September 2015 version of the code

provides: “Persons demonstrating rude, boisterous or profane

behavior will be called to order by the Chair. If such conduct

continues, the Chair may call a recess, requesting the removal of

such person(s) from the Council Chamber, adjourn the meeting or

take some other appropriate action.”

6 This date is certainly a typographical error. Ribakoff

testified that he had not attended any meetings of the Board

since August 24, 2015. It is clear from Ribakoff’s trial testimony

and argument that the meeting he intended to reference took

place on August 24, 2015.

12

that Ribakoff had failed to comply with the Government Tort

Claims Act (Gov. Code, § 900 et seq.) prior to filing the lawsuit.7

At the conclusion of the trial on August 8, 2016, the trial

judge made an oral announcement of his decision, filing a

Statement of Tentative Decision on September 8, 2016. Ribakoff

filed a request for clarification on September 22, 2016. The trial

court entered its judgment on October 4, 2016. There is no

indication in the record on appeal that the trial court specifically

responded to Ribakoff’s request.

On December 8, 2016, Ribakoff filed his timely notice of

appeal.

CONTENTIONS

Ribakoff raises several sets of contentions in his appeal.

First, he raises three standing claims: (a) He has standing to

challenge the “legality” of the Bane Act and of the Brown Act;

(b) his standing to assert equitable claims under the Government

Claims Act is not dependent upon first having filed a claim with

the government agencies he later sued; and (c) he may challenge

the Board’s speech code revised in September 2015, which was

never applied to him, as well as the earlier version of the speech

code applied to him at the August 24, 2015 Board meeting.

Second, he contends the speech code and the events which

occurred at the August 24, 2015 meeting of the Board violated his

rights under the Bane Act and the Brown Act.



7 Defendants refer to the statute as the California Tort

Claims Act; however, as explained in City of Stockton v. Superior

Court (2007) 42 Cal.4th 730, 741, the correct name for these

statutes is the Government Claims Act.

13

Third, he contends the trial court erred in not finding that

the two versions of the Board’s speech code and LBMC 2.03.140

violate both Government Code section 54954.3, subdivision (b),

and the First Amendment to the United States Constitution,

facially and as applied.

Fourth, he contends the trial court violated article 1,

section 3 of the California Constitution when it limited an “access

right[]” (access by the public to public meetings) by adopting the

September 2015 version of the speech code without having made

“constitutionally mandated findings.”8



8 Ribakoff includes other claims in his opening brief, but does

so either merely by citing a statute, or by making a declarative

statement, in each circumstance without cogent argument. (E.g.,

his claims that the speech codes violate art. I, § 2(a) of the Cal.

Const. and that there were violations of Civ. Code, §§ 47 and 52,

and Gov. Code, § 54957.9.) Each of these claims is waived

because Ribakoff has not met his burden as appellant to establish

reversible error by cogent argument and appropriate citation to

authority. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656;

Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154

Cal.App.4th 547, 556-557.)

Ribakoff also makes one evidentiary contention on appeal,

that the trial court erred in rendering its judgment by relying in

part on the video of the August 24, 2015 Board meeting without

having admitted it into evidence. Ribakoff errs as, with his

consent, the video was admitted into evidence on the first day of

trial.

14

DISCUSSION

I. Standards for Review of Ribakoff’s Claims

“In reviewing a judgment based upon a statement of

decision following a bench trial, we review questions of law de

novo. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th

757, 765 . . . .) We apply a substantial evidence standard of

review to the trial court’s findings of fact. (Niko v. Foreman

(2006) 144 Cal.App.4th 344, 364 . . . (Foreman).) Under this

deferential standard of review, findings of fact are liberally

construed to support the judgment and we consider the evidence

in the light most favorable to the prevailing party, drawing all

reasonable inferences in support of the findings. (Citizens

Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613 . . .

(Gevorgian).)

“A single witness’s testimony may constitute substantial

evidence to support a finding. (Gevorgian, supra, 218

Cal.App.4th at p. 613.) It is not our role as a reviewing court to

reweigh the evidence or to assess witness credibility. (Foreman,

supra, 144 Cal.App.4th at p. 365.) ‘A judgment or order of a

lower court is presumed to be correct on appeal, and all

intendments and presumptions are indulged in favor of its

correctness.’ (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,

1133 . . . .) Specifically, ‘[u]nder the doctrine of implied findings,

the reviewing court must infer, following a bench trial, that the

trial court impliedly made every factual finding necessary to

support its decision.’ (Fladeboe v. American Isuzu Motors Inc.

(2007) 150 Cal.App.4th 42, 48 . . . .)” (Thompson v. Asimos (2016)

6 Cal.App.5th 970, 981.)

15

“[A]n appellant must do more than assert error and leave it

to the appellate court to search the record and the law books to

test his claim. The appellant must present an adequate

argument including citations to supporting authorities and to

relevant portions of the record.” (Yield Dynamics, Inc. v. TEA

System Corp., supra, 154 Cal.App.4th at p. 557.) Even when

error is demonstrated, the judgment will not be reversed unless it

is “reasonably probable that a result more favorable to the

appealing party would have been reached in the absence of the

error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see Cal.

Const., art. VI, § 13.)

“‘A trial court rendering a statement of decision under Code

of Civil Procedure section 632 is required only to state ultimate

rather than evidentiary facts. A trial court is not required to

make findings with regard to detailed evidentiary facts or to

make minute findings as to individual items of evidence. Only

where a trial court fails to make findings as to a material issue

which would fairly disclose the determination by the trial court

would reversible error result. Even though a court fails to make

a finding on a particular matter, if the judgment is otherwise

supported, the omission is harmless error unless the evidence is

sufficient to sustain a finding in favor of the complaining party

which would have the effect of countervailing or destroying other

findings. A failure to find on an immaterial issue is not error.

[Citation.] In issuing a statement of decision, the trial court need

not address each question listed in a party’s request. All that is

required is an explanation of the factual and legal basis for the

court’s decision regarding such principal controverted issues at

trial as are listed in the request. [Citation.]’ (Nunes Turfgrass,

Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518,

16

1525 . . . ; [see] People v. Casa Blanca Convalescent Homes, Inc.

(1984) 159 Cal.App.3d 509, 524-525 . . . ; 7 Witkin, Cal. Procedure

[(4th ed. 1997)] Trial, § 411.)” (Kazensky v. City of Merced (1998)

65 Cal.App.4th 44, 67-68.)

When constitutional provisions and statutes are at issue,

we independently review their meaning. (People ex rel. Lockyer v.

Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; Redevelopment

Agency v. County of Los Angeles (1999) 75 Cal.App.4th 68, 74;

Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126.) We also

review de novo the application of a constitutional provision or

statute to undisputed facts. (Lozada v. City and County of San

Francisco (2006) 145 Cal.App.4th 1139, 1149; Pettus v. Cole

(1996) 49 Cal.App.4th 402, 405-406.) De novo review applies in

particular to cases raising First Amendment concerns, i.e., we

independently decide whether the action, statute or ordinance

violates the First Amendment to the United States Constitution.

(In re George T. (2004) 33 Cal.4th 620, 631; McCoy v. Hearst

Corp. (1986) 42 Cal.3d 835, 842; Berry v. City of Santa Barbara

(1995) 40 Cal.App.4th 1075, 1082; accord, Bose Corp. v.

Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-511 [104

S.Ct. 1949, 80 L.Ed.2d 502].)

II. The Government Claims Act

The Government Claims Act requires that prior to filing

suit to recover monetary damages from a governmental entity, a

prospective plaintiff must file a proper claim with that entity and

allow it time to consider its merits (with exceptions not relevant

to the present case). Claims that do not seek “money or damages”

and those in which the “primary purpose” is for declaratory or

injunctive relief are not subject to this pre-litigation filing

17

requirement. (Gov. Code, §§ 905, 905.2; Loehr v. Ventura County

Community College Dist. (1983) 147 Cal.App.3d 1071, 1079.)

Ribakoff did not file a claim of any type with any defendant

before filing his complaint, which included prayers for monetary

damages as well as for equitable (declaratory and injunctive)

relief. Defendants asserted non-compliance with the Government

Claims Act as the first affirmative defense in their answer. On

the first day of trial, when the issue of Ribakoff’s failure to file a

claim prior to filing his lawsuit was addressed, Ribakoff offered to

dismiss his claims for monetary relief, conceding that those

claims were barred by the Government Claims Act.9 No ruling

on that offer appears in the record.

At the close of Ribakoff’s case in chief, the defense made a

motion for judgment under Code of Civil Procedure section

631.8.10 The trial judge granted defendants’ motion in part,



9 Although Ribakoff offered to waive all claims for money

damages prior to beginning trial as noted in the text and his

opening brief on appeal acknowledges that waiver, he

nevertheless contends he may continue to seek “the statutory

penalty.” There is some authority suggesting that a civil penalty

of $25,000 is recoverable for violations of the Bane Act (see CACI

No. 3066 Directions for Use), but no appellate case decided by a

California court has so held. As Ribakoff’s unilateral waiver in

the trial court was unconditional, his attempt to reclaim his

request for the statutory penalty would be unavailing were he to

prevail in this appeal.

10 A motion under Code of Civil Procedure section 631.8 may

be made in a non-jury trial by a party after the opposing party

completes the presentation of its case in chief. The judge, sitting

as trier of fact, may weigh the evidence and order judgment in

favor of the moving party. (Alpert v. Villa Romano Homeowners

Assn. (2000) 81 Cal.App.4th 1320, 1327.)

18

dismissing Ribakoff’s claims for monetary damages because he

had not complied with the Government Claims Act. The trial

continued, concluding with judgment for the defense on all causes

of action.

Anticipating an argument by defendant in this appeal,

Ribakoff contends he was not required to comply with the

Government Claims Act to proceed on his non-monetary claims

under the Bane Act because, in seeking relief under that statute,

his “primary purpose was equitable.”11

In their appellate brief, defendants overlook both that the

trial court granted their motion under Code of Civil Procedure

section 631.8 only in part, and that Ribakoff had represented

earlier in trial proceedings that his primary purpose in bringing a

claim under the Bane Act (as well as with respect to his other

claims for relief) was equitable.

In order to make its ruling, the trial court necessarily

accepted Ribakoff’s representation of his stated purposes. And,

as Ribakoff points out, the case upon which defendants rely on

appeal, Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744,

supports Ribakoff’s position. Thus, in Gatto, the Court of Appeal

reasoned that Gatto’s claims (under the Unruh Civil Rights Act)

were principally monetary in nature and therefore subject to the

pre-filing requirements of the Government Claims Act.12 (Gatto,



11 Ribakoff correctly points out that there is no Government

Claims Act pre-filing requirement with respect to his cause of

action under the Brown Act as that act does not provide for

monetary relief, but “only provides equitable remedies.”

12 In Gatto, the Court of Appeal discusses the relationship

between the Unruh Civil Rights Act and the Bane Act. We need

only be concerned in the present case with that court’s holding

19

supra, at p. 760.) The converse of that holding, that when the

principal purpose is not monetary (and, also when no monetary

relief is sought) is also correct, i.e., under those circumstances,

the filing of a claim is not a condition precedent to filing suit

against a governmental agency. (Gov. Code, §§ 905 [“all claims

for money or damages against local public entities” (italics

added)], 911.2 [claims, subject to exceptions not relevant here,

first must be presented within a specified time limit (six months

or a year of accrual, depending on the nature of the claim)],

§ 945.4 [“no suit for money or damages may be brought against a

public entity on a cause of action for which a claim is required to

be presented” (italics added)]; State of California v. Superior

Court (2004) 32 Cal.4th 1234, 1239 [failure to comply with these

conditions precedent bars filing a lawsuit against the

governmental entity]; City of San Jose v. Superior Court (1974)

12 Cal.3d 447, 454; Canova v. Trustees of Imperial Irrigation

Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493.)

Defendants’ argument that the trial court determined that

Ribakoff’s Bane Act claims were barred in their entirety because

the principal purpose was a monetary recovery ignores both

Ribakoff’s concession in the trial court and the trial court’s ruling

on defendants’ Code of Civil Procedure section 631.8 motion.

III. The Bane Act

Ribakoff contends he established a violation of the Bane

Act based on the police officer’s statements to him both inside the



that compliance with the Government Claims Act is required

“where the plaintiff does seek to recover damages from a public

entity and that is his or her chief purpose.” (Gatto v. County of

Sonoma, supra, 98 Cal.App.4th at p. 761.)

20

meeting room and outside following the conclusion of the

August 24, 2015 Board meeting.

There is no evidence of the officer’s statements to Ribakoff

prior to Ribakoff temporarily absenting himself from the

August 24, 2015 meeting. With respect to the declaratory

statement made by the officer to Ribakoff outside the meeting

room following the conclusion of the Board’s meeting, that

Ribakoff would be arrested if Ribakoff violated the Board’s public

speaker time limit at a future meeting, we find such a statement

insufficient to meet the proscription of the Bane Act.13

Civil Code section 52.1, “commonly referred to as the ‘Tom

Bane Act’ or as the ‘Bane Act,’ was enacted in 1987 as part of a

renewed effort to combat the disturbing rise in ‘hate crimes,’ or,

put otherwise, the rising incidence of civil rights violations

motivated by hatred and discrimination.” (Venegas v. County of

Los Angeles (2004) 32 Cal.4th 820, 845.)

The Bane Act provides in relevant part:

“(a) If a person or persons, whether or not acting under

color of law, interferes by threats, intimidation, or coercion, or

attempts to interfere by threats, intimidation, or coercion, with



13 In his opening brief, Ribakoff discusses the doctrine of

standing to bring a claim under the Bane Act, apparently under

the impression the trial court denied his claim of standing to do

so. We find no such ruling by the trial court in the record. And,

as is clear from Civil Code section 52.1, subdivision (b), quoted in

the text of this opinion following this footnote, the Bane Act

conveys standing to individuals to sue for violations of that act.

(See Bay Area Rapid Transit Dist. v. Superior Court (1995) 38

Cal.App.4th 141, 144 [Bane Act provides standing to individuals

to assert cause of action for interference based on the conduct

described in Civ. Code, § 52.1].)

21

the exercise or enjoyment by any individual or individuals of

rights secured by the Constitution or laws of the United States,

or of the rights secured by the Constitution or laws of this state,

[specified law enforcement officials] may bring a civil action for

injunctive and other appropriate equitable relief [and monetary

damages] . . . .

“(b) Any individual whose exercise or enjoyment of rights

secured by the Constitution or laws of the United States, or of

rights secured by the Constitution or laws of this state, has been

interfered with, or attempted to be interfered with, as described

in subdivision (a), may institute and prosecute in his or her own

name and on his or her own behalf a civil action for damages, . . .

injunctive relief, and other appropriate equitable relief . . . .”

(Civ. Code, § 52.1, subds. (a), (b).)

From its inception, the purpose of the Bane Act has been to

target unlawful conduct motivated by discriminatory animus that

interferes with the victim’s enjoyment of statutory or

constitutional civil rights. (Venegas v. County of Los Angeles,

supra, 32 Cal.4th at p. 846.)

Ribakoff argues he should have prevailed on his Bane Act

claim based on the circumstances that “he was threatened with

arrest.” We review the facts in evidence based on the substantial

evidence standard, discussed, ante.

The facts concerning this matter consist of Ribakoff’s

testimony, a declaration by the general counsel for the Board, the

video of the relevant portions of the meeting and the business

card of the police officer on which he wrote the citation to a

section of the LBMC. Ribakoff testified he was ordered to leave

the meeting room by the officer, admittedly because he had

gotten into a verbal contest with the chair of the Board when she

reminded him he had already spoken for three minutes and was

22

now interrupting the deliberations of and voting by the Board,

followed by two contacts with the police officer.

There is no testimony as to why, if an order to leave the

meeting room was given, Ribakoff returned to it before agenda

item 10 was voted on. The trial court may well have discounted

any inference to be drawn from the circumstance that Ribakoff

had left the room based on the fact that he returned prior to the

conclusion of the meeting without any untoward result.

It was in Ribakoff’s second contact with the officer, after

the meeting had concluded and outside the meeting room, that

Ribakoff testified the officer warned him he would be arrested if

he violated the Board’s speech rules at a future meeting.

In finding no violation of the Bane Act, the trial court

necessarily concluded that these facts were insufficient to meet

Ribakoff’s burden. We agree there is no substantial evidence to

support a violation of the Bane Act. Factually, the “threat” made

was that if Ribakoff violated the rules applicable to public

speakers at Board meetings, he could expect to be arrested.

Thus, the statement was expressly conditioned on Ribakoff

violating a rule for public speakers of which Ribakoff was well

aware from his prior attendance at meetings and his completing

the speaker’s card on which the rule is written.

With respect to Ribakoff’s argument that this warning has

deterred him from attending any other meetings of the Board,

Ribakoff omits the fact that he received a letter from the Board’s

general counsel on or shortly after September 22, 2015, in which

the lawyer invited him to return to meetings. The lawyer for the

Board wrote: “You are welcome to attend the Board . . . meetings

and are invited to participate in matters before [it], subject to the

attached Information and Procedures Concerning Conduct at

23

Board . . . [m]eetings. Thank you for your interest and

commitment to public transportation.”

With these facts as a basis, the interaction between the

officer and Ribakoff does not support a determination that there

was a violation of this statute. The Bane Act proscribes conduct

that interferes, by threats, intimidation or coercion, with the

exercise or enjoyment by an individual of rights secured by the

federal or state constitutions. The statement by the officer was a

statement that if Ribakoff violated the law—if he demanded to

speak in violation of the speakers’ time limits—he would be

subject to arrest. That is not, without more, an intimidating

statement or a threat. Nor, as discussed, post, does it impinge on

a right secured by either the federal or state constitutions.

Ribakoff’s argument on appeal is essentially that because

Ribakoff disagrees with the Board’s rule limiting members of the

public to three minutes in addressing the Board on any agenda

item, he feels intimidated and will not return to a meeting

because he will be subject to arrest. What Ribakoff is actually

arguing is that he should not be bound by the Board’s rules

limiting public speakers to three minutes on any agenda item.

Thus, his objection is to the time limit rule rather than to the

officer’s statement to him. And, it is Ribakoff’s own disregard for

this time limit and his subjective feeling that create his fear—not

the officer’s warning of the consequences if he does so.

Ribakoff is construing the officer’s statement that Ribakoff

may expect to be arrested if he violates the law without

considering the condition precedent to any arrest: that Ribakoff

violate the Board’s speech rule. The officer did not “threaten”

Ribakoff with violence, but with arrest if he violated the law.

Ribakoff’s contention is based on a misinterpretation of the

24

officer’s words—which are conditional—and ignores the essential

requirement of proof to prevail on a claim under the Bane Act:

here, that what the officer said constituted a threat to commit a

violent act.

Thus, both the statute, quoted, ante, and the cases we now

discuss, require that to prevail on a cause of action under the

Bane Act, a plaintiff must show that the defendant interfered

with or attempted to interfere with the plaintiff's legal right by

threatening or committing violent acts. (Austin B. v. Escondido

Union School Dist. (2007) 149 Cal.App.4th 860, 881-882; see

generally Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.)

Establishing a violation of the Bane Act requires more than a

statement such as that made by the officer. There must be an

evidentiary showing of threatening conduct independent of the

alleged interference or violation of a civil right. (Shoyoye v.

County of Los Angeles (2012) 203 Cal.App.4th 947, 959; see Allen

v. City of Sacramento (2015) 234 Cal.App.4th 41, 67 [“There are

two distinct elements for a [Civ. Code, §] 52.1 cause of action. A

plaintiff must show (1) intentional interference or attempted

interference with a state or federal constitutional or legal right,

and (2) the interference or attempted interference was by threats,

intimidation or coercion”], citing Jones v. Kmart Corp., supra, at

p. 334.)

In Doe v. State of California (2017) 8 Cal.App.5th 832, the

court stated, “Here, assuming agents of the [defendant]

threatened to arrest/prosecute [the plaintiff] if he failed to

register as a sex offender, the [plaintiffs] did not allege those

agents engaged in independently threatening (or intimidating,

coercive) conduct apart from the threats to arrest/prosecute him.

Moreover, the evidence shows that [the plaintiff] could have

25

determined his legal duties regarding registration as a sex

offender; State agents did nothing to prevent him from exercising

his legal rights. Under the circumstances, the [defendant’s]

sharing of [the plaintiff’s] information with local law enforcement

does not constitute ‘“threat, intimidation, or coercion”’ for

purposes of Civil Code section 52.1. [Citation.] Accordingly, the

[plaintiffs] have not established a probability of prevailing on

their Bane Act claims. (Id. at p. 843.)

“‘Speech alone is not sufficient to support an action brought

pursuant to subdivision (a) or (b) [of Civil Code section 52.1],

except upon a showing that the speech itself threatens

violence . . . and that the person threatening violence had the

apparent ability to carry out the threat.’” (Shoyoye v. County of

Los Angeles, supra, 203 Cal.App.4th at pp. 958-959.)

Here, nothing the officer said to Ribakoff meets the test of

this statute. The trial court correctly concluded there was no

violation of the Bane Act.

IV. The Brown Act and First Amendment Claims

Ribakoff contends, because the Board’s speech rules apply

only to members of the public and limit any speech by a member

of the public to a specified time for any particular agenda item,

each such rule is a content based rule proscribed by the Brown

Act and by the free speech clause of the First Amendment to the

United States Constitution.

Because Ribakoff interweaves his arguments under the

Brown Act with his free speech claims, and with a claim that

LBMC 2.03.140 is also flawed, we address these claims together.

26

A. Relevant Facts

The only evidence in the record of the speech code

applicable at the August 24, 2015 meeting of the Board at which

Ribakoff spoke was set out on the card which each speaker

completed prior to speaking. The card states this rule as follows:

“Comments shall be limited to three (3) minutes for all

comments, unless different time limits are set by the

Chairperson, subject to the approval of the Board.” When

Ribakoff attempted to speak a second time on item 10, the record

indicates the chair reminded him he had already used the three

minutes allowed to him under the rule. The general counsel for

the Board then advised the chair the Board had the power to

allow him additional time. No additional time was granted;

Ribakoff and the chair spoke over each other; the microphone at

the speaker’s location was shut off; a police officer arrived and

spoke to Ribakoff, who then left the podium and, later, the

meeting room, returning prior to the conclusion of the meeting.

The record does contain the revised speakers rule, put in

place in September 2015. The September 2015 iteration of this

rule contains a statement of the time limitation on public

speakers almost identical to that applied at the August 24, 2015

meeting.

B. Standing

Ribakoff contends the trial court ruled he did not have

standing to bring this cause of action, and in so ruling, erred.

While, during trial, the court did comment on the issue of

Ribakoff’s standing under the Brown Act, it appears from both

the Statement of Tentative Decision and the Judgment the court

entered that the court ultimately determined that Ribakoff did

27

have standing. We nevertheless briefly discuss Ribakoff’s

argument with respect to the Brown Act before addressing his

more problematic claim of standing to assert his constitutionbased

claims.

1. Brown Act Standing

Ribakoff’s standing to assert a claim under the Brown Act

is clear. Thus, the Brown Act “is intended to ensure the public’s

right to attend the meetings of public agencies[,] . . . to facilitate

public participation in all phases of local government

decisionmaking and to curb misuse of the democratic process by

secret legislation of public bodies.” (International

Longshoremen’s & Warehousemen’s Union v. Los Angeles Export

Terminal, Inc. (1999) 69 Cal.App.4th 287, 293.)

Implementing its purposes, the Brown Act contains a broad

authorization for citizen standing. Government Code section

54960, subdivision (a) provides: “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 [the Brown Act]

by members of the legislative body of a local agency or to

determine the applicability of [the Brown Act] . . . to past actions

of the legislative body, subject to Section 54960.2 . . . .”14 The



14 The phrase “legislative body of a local agency” is broadly

construed to include “[t]he governing body of a local agency or

any other local body created by state or federal statute.” (Gov.

Code, § 54952, subd. (a).) It also includes “A commission,

committee, board, or other body of a local agency . . . created by

. . . formal action of a legislative body.” (Id., subd. (b).)

Defendants are such entities.

28

breadth of this legislative statement of standing is illustrated in

McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th

1310 (McKee), in which that appellate court upheld the standing

of a plaintiff who was neither a resident nor a taxpayer in Orange

County to obtain an injunction to require the defendant local

school district to comply with multiple provisions of the Brown

Act. It was sufficient that he be a taxpayer/citizen of the State of

California. (Id. at pp. 1314-1316.)15 We conclude Ribakoff has

standing in this case to assert his Brown Act claims.

2. Standing to Assert Constitutional Claims—

Facial Challenge

With respect to Ribakoff’s contentions that the speech rules

of the Board violate his First Amendment rights, both on their



15 McKee was decided under a prior version of Government

Code section 54960. In 2012 the Legislature added section

54960.2 and inserted a reference to this new statute in section

54960 of the Government Code. (Stats 2012, ch. 732, §§ 1, 2.)

The new statute made the right to sue for a violation of the

Brown Act contingent upon the prospective plaintiff first

submitting a cease and desist letter to “the legislative body being

accused of the violation.” (Gov. Code, § 54960.2, subd. (a)(1).) If

that body did not take formal action as required by the statute

within a specified period of time, the individual may file suit.

(Gov. Code, § 54960.2, subd. (c).) In this case, Ribakoff provided

notice to the Board substantially complying with this statute

prior to filing suit. Thus, Ribakoff had standing to bring this

litigation. (See Center for Local Government Accountability v.

City of San Diego (2016) 247 Cal.App.4th 1146, 1156 [compliance

with Gov. Code, § 54960.2 is required prior to filing suit alleging

violation of Gov. Code, § 54960 with respect to a “past action” of a

legislative body].)

29

face and as applied, different considerations must be evaluated.

A challenge to a statute, ordinance, or rule, may be either facial

or as applied. A facial challenge considers only the text of the

measure itself, not its application to the particular circumstances

encountered by the individual. (Dillon v. Municipal Court (1971)

4 Cal.3d 860, 865.) The party challenging the measure must

demonstrate that its “‘provisions inevitably pose a present total

and fatal conflict with applicable constitutional prohibitions.’”

(Arcadia Unified School Dist. v. State Dept. of Education (1992) 2

Cal.4th 251, 267, quoting Pacific Legal Foundation v. Brown

(1981) 29 Cal.3d 168, 181.) The party challenging the measure

cannot prevail by suggesting that in some future hypothetical

situation constitutional problems may possibly arise as to the

particular application of the statute. (Arcadia, supra, at p. 267,

quoting Pacific Legal Foundation, supra, at p. 180.)

Only a statute that is substantially overbroad may be

invalidated on its face. (City of Houston, Texas v. Hill (1987) 482

U.S. 451, 457 [107 S.Ct. 2502, 96 L.Ed.2d 398]; see Williams v.

Garcetti (1993) 5 Cal.4th 561, 578.) The burden to establish the

validity of such a challenge is on the plaintiff. Further,

“‘[a]pplication of the overbreadth doctrine . . . is, manifestly,

strong medicine. It has been employed . . . sparingly and only as

a last resort.’” (Williams, supra, at p. 577, citing Broadrick v.

Oklahoma (1973) 413 U.S. 601, 613 [93 S.Ct. 2908, 37 L.Ed.2d

830]; accord, Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d

805, 814 [all presumptions and intendments favor the validity of

statutes, and they will be upheld unless their unconstitutionality

clearly and unmistakably appears].) To support a determination

of facial unconstitutionality, voiding the provision in its entirety,

the proponent must establish that the provisions challenged

30

“‘“inevitably pose a present total and fatal conflict with applicable

constitutional prohibitions.”’” (Tobe v. City of Santa Ana (1995) 9

Cal.4th 1069, 1084.)

The same principles apply to the Board’s speech code and

ordinances as apply to statutes. (See Sturgeon v. Bratton (2009)

174 Cal.App.4th 1407, 1419.)

“‘In interpreting [the provision being challenged], we apply

the usual rules of statutory construction: “We begin with the

fundamental rule that our primary task is to determine the

lawmakers’ intent. [Citation.] . . . To determine intent, ‘“The

court turns first to the words themselves for the answer.”’

[Citations.] ‘If the language is clear and unambiguous there is no

need for construction, nor is it necessary to resort to indicia of the

intent of the Legislature (in the case of a statute) . . . .’”

[Citation.] We give the language of the statute its “usual,

ordinary import and accord significance, if possible, to every

word, phrase and sentence in pursuance of the legislative

purpose. A construction making some words surplusage is to be

avoided.”’ (Kane v. Hurley (1994) 30 Cal.App.4th 859, 862 . . . .)”

(Sturgeon v. Bratton (2009) 174 Cal.Apop.4th 1407, 1420-1421.)

3. Standing—As Applied Challenge

“An as applied challenge may seek (1) relief from a specific

application of a facially valid statute or ordinance to an

individual or class of individuals who are under allegedly

impermissible present restraint or disability as a result of the

manner or circumstances in which the statute or ordinance has

been applied, or (2) an injunction against future application of

the statute or ordinance in the allegedly impermissible manner it

is shown to have been applied in the past. [Such a challenge]

31

contemplates analysis of the facts of a particular case or cases to

determine the circumstances in which the statute or ordinance

has been applied and to consider whether in those particular

circumstances the application deprived the individual to whom it

was applied of a protected right. (See, e.g., Broadrick v.

Oklahoma [, supra,] 413 U.S. [at pp.] 615-616 . . . ; County of

Nevada v. MacMillen (1974) 11 Cal.3d 662, 672 . . . ; In re

Marriage of Siller (1986) 187 Cal.App.3d 36, 49 . . . .)” (Tobe v.

City of Santa Ana, supra, 9 Cal.4th at p. 1084.) To prevail on

such a contention, the party asserting an as applied challenge

must establish a pattern of impermissible application of the

statute, rule or policy. (Id. at p. 1085.)

C. Analysis of Substantive Claims16

1. Contentions Based on Interrelating the Brown

Act, the Speech Codes and the LBMC

Ribakoff argues that neither LBMC 2.03.140, nor the

Board’s “criminal speech rules” are authorized by the Brown Act.

Ribakoff errs. First, Ribakoff mistakenly bases his

argument on the assertion that the LBMC ordinance was

authorized by the Brown Act. Thus, Ribakoff asserts “The Brown



16 We reject Ribakoff’s claim that the September 2015 version

of the speech code is invalid as applied to him as, by his own

admission, it has never been so applied. Nor is there any

evidence that it has been applied to any other person who has

attended a meeting of the Board following announcement of the

new speech code.

32

Act does not authorize either the city ordinance or any of [the

LBTC’s] criminal speech rules.”17

Ribakoff misperceives the relationship between the Brown

Act and the ordinance. Ribakoff’s argument that the ordinance

must be authorized by the Brown Act evidences a

misunderstanding of the fact that the City of Long Beach is a

charter city and therefore has plenary power over its municipal

affairs, including the police power to adopt ordinances such as

LBMC 2.03.140, so long as its actions are not preempted by state

or federal law. (Cal. Const., art. XI, §§ 5, 7; see California Fed.

Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1,

12-13.)

Second, the Brown Act expressly permits legislative bodies

of local agencies to adopt reasonable time limitations on public

testimony. (Gov. Code, § 54954.3, subd. (b)(1).)

Third, neither version of the speech code contains any

criminal sanction.



17 Ribakoff also claims the two speech codes were “never

adopted” by the Board and are invalid for that reason as well.

However, while the burden is his, as plaintiff below, to establish

this “fact,” he makes no reference in his appellate brief to any

evidence which he introduced at trial to substantiate this claim.

Indeed, there is no evidence that Ribakoff availed himself of

Evidence Code section 1284 (proof of absence of official record),

which would have allowed him to obtain admissible evidence of

the absence of any record of adoption of one or both speech codes,

if no record of adoption did exist. For this reason, he has waived

the claim of lack of formal adoption of either version of the speech

code. (See fn. 3, ante.)

33

2. LBMC 2.03.140 and the First Amendment

Ribakoff contends LBMC 2.03.140 is unconstitutional, both

on its face and as applied to him. He bases this claim on his

reading of In re Kay (1970) 1 Cal.3d 930 (Kay), arguing that

LBMC 2.03.140 is unconstitutional for the same reason that

Penal Code section 403 was determined to be unconstitutional in

Kay.18 Ribakoff misunderstands the holding of Kay.

Ribakoff is correct that the Long Beach ordinance is “all but

identical” to the statute at issue in Kay. LBMC 2.03.140

provides: “No person without authority of law shall disturb,

interrupt, or break up any meeting or session of the Council, or

of any legally constituted board or commission of the City.”19

Penal Code section 403 provides: “Every person who,

without authority of law, willfully disturbs or breaks up any

assembly or meeting that is not unlawful in its character . . . is

guilty of a misdemeanor.”

In Kay, our Supreme Court was asked to consider the First

Amendment implications of Penal Code section 403, which had

been the basis for the arrest of several persons who had made a

disturbance during an Independence Day speech to a public

gathering of approximately 6,000 persons in a park in the

farming community of Coachella by a candidate for reelection to



18 Ribakoff also claims this ordinance is unconstitutionally

“vague” as applied. While Ribakoff has standing to raise this

claim even though he was not arrested (see Prigmore v. City of

Redding (2012) 211 Cal.App.4th 1322, 1349), the holding of Kay,

which we discuss in the text, post, establishes this claim is

without merit.

19 Ribakoff has not cited any provision of the LBMC which

makes violation of this ordinance a misdemeanor.

34

the United States House of Representatives. The protesters had

“engaged in rhythmical clapping and some shouting” during the

speech, but without interfering with the speaker completing his

speech; he did, “paus[e] to assure those protesting that they had a

right to do so . . . . At no time did either the speaker or the police

ask the protestors to be silent or to leave.” Charges were filed

two weeks later. (In re Kay, supra, 1 Cal.3d at p. 936.) The

protesters were later convicted of violating this Penal Code

provision.

In its opinion granting the petitioners in Kay a writ of

habeas corpus on the ground that petitioners had not

unreasonably interfered with a public meeting, our Supreme

Court construed Penal Code section 403 to eliminate doubt as to

its constitutionality, holding that Penal Code section 403

“authorizes the imposition of criminal sanctions only when the

defendant’s activity itself—and not the content of the activity’s

expression—substantially impairs the effective conduct of a

meeting.” (In re Kay, supra, 1 Cal.3d at p. 942.)

The court explained, “the nature of a meeting necessarily

plays a major role. [Citation.] The customs and usages at

political conventions may countenance prolonged, raucous,

boisterous demonstrations as an accepted element of the meeting

process; similar behavior would violate the customs and usages of

a church service. Audience participation may be enthusiastically

welcomed at a bonfire football rally or an athletic contest, but

considered taboo at a solemn ceremony of a fraternal order.

Explicit rules governing the time and place of permitted

nonviolent expressions [citations] may in some circumstances fix

the limits of permissible conduct. Violation of such customs or

rules by one who knew or as a reasonable man should have

35

known of them would justify the application of [Penal Code]

section 403. Thus, rather than enacting monolithic standards,

[Penal Code] section 403 draws its content from the implicit

customs and usages or explicit rules germane to a given

meeting.” (In re Kay, supra, 1 Cal.3d at p. 943, fn. omitted.)

As noted, LBMC 2.03.140 is substantially similar to Penal

Code Section 403; accordingly, it should be construed in like

manner. Thus, Ribakoff’s claim that LBMC 2.03.140 must be

voided because the similar Penal Code section had been

invalidated rests on an invalid premise.20 Just as our Supreme

Court upheld the constitutionality of Penal Code section 403, as

construed, we conclude that LBMC 2.03.140 is not

unconstitutional when similarly construed. Kay does make a

distinction which we will address, post, with respect to other

contentions of Ribakoff, i.e., analysis of rights under the First



20 To support his argument, Ribakoff also mistakenly relies

on a quotation from the syllabus preceding the United States

Supreme Court’s opinion in Madison Sch. Dist. v. Wisconsin Emp.

Rel. Comm’n (1976) 429 U.S. 167 [97 S.Ct. 421, 50 L.Ed.2d 376]

(Madison). In that case, the United States Supreme Court held

that a public body (there, a school board) sitting in a public

meeting to conduct public business cannot permit some public

speakers but exclude others on either the basis of their

employment or the content of their speech. (Id. at p. 176.) That

factual circumstance is inapposite to the situation in the present

case. Nothing in that court’s determination that such a

restriction was invalid suggests application to the present case.

In addition, Ribakoff’s use of a quotation from the syllabus

preceding the opinion is inappropriate. Immediately preceding

the syllabus there is a footnote notice that the syllabus

“constitutes no part of the opinion of the court.” (Madison, supra,

429 U.S. 167.)

36

Amendment differs depending on the nature of the forum in

which the views are sought to be expressed.

3. Constitutional Claims Based on Restrictions on

Time Allowed for Public Speakers

Ribakoff contends the time limits imposed by the speech

rules of the Board violate his First Amendment rights; he also

contends the circumstance that no time limits are imposed on

staff and invited guests support his claim. And, he alleges that

these speech rules are unconstitutional both on their face and as

applied.

Government Code section 54954.3, subdivision (a) provides:

“Every agenda for regular meetings shall provide an opportunity

for members of the public to directly address the legislative body

on any item of interest to the public, before or during the

legislative body’s consideration of the item . . . .” Subdivision

(b)(1) of the same section provides: “The legislative body of a

local agency may adopt reasonable regulations to ensure that the

intent of subdivision (a) is carried out, including, but not limited

to, regulations limiting the total amount of time allocated for

public testimony on particular issues and for each individual

speaker.” And subdivision (c) of the same section provides: “The

legislative body of a local agency shall not prohibit public

criticism of the policies, procedures, programs, or services of the

agency, or of the acts or omissions of the legislative body.

Nothing in this subdivision shall confer any privilege or

protection for expression beyond that otherwise provided by law.”

Ribakoff cites this statute in support of his contention that

the Brown Act does not authorize the speech limits which the

Board applied. Based on this statute, he argues the Board’s

37

speech rules are not reasonable because “they exist [for some

reason other than] to allocate the limited time among the crush of

public speaker[s] at the bus company’s board meeting[s].”21 He

also argues, “A law [apparently referring to the speech rules] that

prohibits you from ‘disturbing’ a council meeting is a law that

prohibits you from disturbing it by criticizing it.” Thus,

Ribakoff’s claim is that the rules at issue exist to prevent

speakers from expressing views that the Board does not want to

hear, and this limitation impinges on Ribakoff’s right to speak in

a public forum.

a. Time limitation on Ribakoff’s statements to

the Board.

Ribakoff’s claim that the speech rules exist to censor

comments is without factual basis. When Ribakoff spoke the first

time on item 10, there is no evidence he was interrupted in

expressing his opposition to the new TAP card policy which the

Board was then considering adopting. Nor is there any other

evidence his criticism of item 10 was interrupted or that the

content of his remarks was being censored. Instead, it was only

when he rose to speak a second time—during the period for

discussion, deliberation and voting by members of the Board—

that his request to speak again was turned down.

Nor is there any evidence his request for additional time

was rejected based on the content of what he was going to say.



21 Based on the overarching theme of his opening brief, it

appears Ribakoff is arguing the regulations are implemented to

prevent speakers from expressing views that the Board does not

want to hear. For reasons we discuss in the body of this opinion,

we find this argument to be factually and legally incorrect.

38

(Additionally, there is no evidence of what he had intended to say

if he had been allowed to speak a second time, other than what

he offers on appeal—that he was going to dispute what another

speaker (likely a staff member or one of the MTA representatives

who had made a presentation to the Board) had said during the

public hearing on the agenda item.) Instead, the facts establish

Ribakoff’s second request to speak was declined because

previously he had consumed all of the time allowed to him as a

member of the public to speak on a particular agenda item.

b. Limitation on public testimony as opposed to

staff testimony.

Ribakoff also argues the limitation on public testimony is

unreasonable because staff members and guests invited to speak

on particular agenda items are not so limited. The essence of

Ribakoff’s argument is that a three-minute limit is presumptively

unreasonable, particularly when there is no similar time limit on

presentations by staff or invited guests.

Ribakoff’s argument fails to recognize the different

purposes served by staff/invited guests, on the one hand, and

members of the public, on the other. The purpose of staff/invited

guest presentations to the Board, or any similar body, is to

present to the members of that body in their capacity as

legislators, and to the public in attendance, what can be

detailed—and perhaps lengthy—analyses of the particular

agenda item, to inform both the members of the board and the

public concerning the item. Limiting presentations by staff and

guests who are invited to speak based on their expertise to the

same extent as members of the public ignores the information

function served by staff and invited experts. Truncating such

39

presentations does not promote informed decision making by the

legislative body. The chair of the legislative body continues to

have the ability to regulate the length of those presentations.

Nor is there any reason to think time allocated for those

presentations would be unlimited or extend beyond that needed

to inform all in attendance concerning the particular agenda

item.

On the other hand, having no limit on either the length of

any particular presentation by a member of the public or on the

number of public speakers (or on the total time for public

comment) has the potential for endless discussion—given the

potential that there will be a far greater number of members of

the public who may wish to speak to an issue than there are staff

and guests who make presentations concerning it. The number of

staff and invited guests speaking on a topic will clearly be

limited; the potential for public speakers is potentially extensive

and needs some reasonable limitation.

We do not suggest that members of the public may not have

expertise, or that their presentations would be of lesser value

than those of the invited, expert staff and guest speakers, only

that their number must be considered in weighing the time

allotted to public participation. Indeed, this concern was a factor

in shaping the text of Government Code section 54954.3 as it

moved through the Legislature with amendments to the Brown

Act adopted in 1986. On the one hand, the Legislature declared

the importance of open governance and the public’s right to

participate.22 On the other, it validated enactment of limits on



22 Thus, Government Code section 54950 provides in part: “In

enacting [the Brown Act], the Legislature finds and declares that

the public commissions, boards and councils and the other public

40

public speakers so that the business of government could

function. (Gov. Code, § 54954.3.)23

c. Public forum verses limited public forum.

Ribakoff seeks to apply First Amendment principles

applicable to public fora to limited public fora, such as meetings

of the Board. In making this claim, Ribakoff does not appreciate

that the First Amendment does not apply in the same way in the

two fora.

The case upon which Ribakoff places principal reliance for

his claim that the speech codes violate the Brown Act discusses

this difference. White v. City of Norwalk (9th Cir. 1990) 900 F.2d

1421 (White) was an action brought by two plaintiffs who were

ruled out of order when they spoke or attempted to speak at a



agencies in this State exist to aid in the conduct of the people’s

business. It is the intent of the law that their actions be taken

openly and that their deliberations be conducted openly.”

23 The 1986 Legislature enacted significant amendments to

the Brown Act, set out in Statutes 1986, chapter 641. In the

course of its enactment of these changes, the Senate Local

Government Committee Report on Assembly Bill No. 2674 notes,

“The Committee may wish to consider whether the requirement

for public comment will unnecessarily slow down local agencies’

meetings. The Committee may also wish to consider whether the

bill gives local officials sufficient control over public comment

periods without stifling their intent.” (Sen. Local Government

Com., Rep. on Assem. Bill No. 2674 (1985-1986 Reg. Sess.)

May 22, 1986, p. 3.) The text of Government Code section

54954.3 was then modified to read as it exists at present. We

take judicial notice of this legislative history. (Kaufman & Broad

Communities, Inc. v. Performance Plastering, Inc. (2005) 133

Cal.App.4th 26 [collecting cases].)

41

meeting of the city council of the City of Norwalk. They sued

under the federal civil rights statutes (42 U.S.C. § 1983), seeking

to vindicate their First Amendment and other civil rights claims

by having the court issue a declaration that a specific provision of

the Norwalk City Code (former § 2-1.2, now § 2.08.020 (Ord.

1470, § 2, 1997))24 was unconstitutional; an injunction against



24 The cited ordinance provided:

“[B] Rules of Decorum. While any meeting of the City

Council is in session, the following rules of order and decorum

shall be observed: [¶] . . . [¶]

“3. Persons Addressing the Council. . . . Each person who

addresses the Council shall do so in an orderly manner and shall

not make personal, impertinent, slanderous or profane remarks

to any member of the Council, staff or general public. Any person

who makes such remarks, or who utters loud, threatening,

personal or abusive language, or engages in any other disorderly

conduct which disrupts, disturbs or otherwise impedes the

orderly conduct of any Council meeting shall, at the discretion of

the presiding officer or a majority of the Council, be barred from

further audience before the Council during that meeting. [¶] . . .

[¶]

“[D] Enforcement of Decorum. The rules of decorum set

forth above shall be enforced in the following manner:

“1. Warning. The presiding officer shall request that a

person who is breaching the rules of decorum be orderly and

silent. If, after receiving a warning from the presiding officer, a

person persists in disturbing the meeting, the presiding officer

shall order him or her, to leave the Council meeting. If such

person does not remove himself or herself, the presiding officer

may order any law enforcement officer who is on duty at the

meeting as sergeant-at-arms of the Council to remove that person

from the Council chambers. [¶] . . . [¶]

42

enforcement of the ordinance; and for monetary damages. (White,

supra, at p. 1422.) The subject ordinance forbids conduct by

members of the public, “which disrupts, disturbs or otherwise

impedes the orderly conduct of any Council meeting.”25 (Norwalk

Mun. Code, § 2.08.020(B)(3).)

The Ninth Circuit’s opinion upholding the ordinance

against these challenges points out the difference between

remarks “uttered on the street to anyone who chooses or chances

to listen,” and those presented in a meeting of a legislative body

such as the Norwalk City Council—or meetings of the Board.

(White, supra, 900 F.2d at p. 1425.) The court explained: “A

more fundamental flaw in [the] plaintiffs’ position is that their

first amendment arguments do not take account of the nature of

the process that this ordinance is designed to govern. We are

dealing not with words uttered on the street to anyone who

chooses or chances to listen; we are dealing with meetings of the

Norwalk City Council, and with speech that is addressed to that

Council. Principles that apply to random discourse may not be

transferred without adjustment to this more structured situation.



“3. Resisting Removal. Any person who resists removal by

the sergeant-at-arms shall be charged with a violation of this

section.

“4. Penalty. Any person who violates any provision of this

section shall, pursuant to Section 1.[16].010, be guilty of a

misdemeanor.” (White, supra, 900 F.2d at p. 1424.)

25 The ordinance included a proscription on slanderous or

profane remarks, which did not apply to such remarks unless

they disrupted, disturbed or otherwise impeded the orderly

conduct of such a meeting. (White, supra, 900 F.2d at p. 1424.)

43

“City Council meetings like Norwalk’s, where the public is

afforded the opportunity to address the Council, are the focus of

highly important individual and governmental interests.

Citizens have an enormous first amendment interest in directing

speech about public issues to those who govern their city. It is

doubtless partly for this reason that such meetings, once opened,

have been regarded as public forums, albeit limited ones. See

[Madison, supra,] 429 U.S. [at p.] 175 . . . ; Hickory Fire Fighters

Ass’n, Local 2653 v. City of Hickory, 656 F.2d 917, 922 (4th

Cir.1981).

“On the other hand, a City Council meeting is still just

that, a governmental process with a governmental purpose. The

Council has an agenda to be addressed and dealt with. Public

forum or not, the usual first amendment antipathy to contentoriented

control of speech cannot be imported into the Council

chambers intact. In the first place, in dealing with agenda items,

the Council does not violate the first amendment when it

restricts public speakers to the subject at hand. [Madison,

supra,] 429 U.S. at [p.] 175 [f]n. 8 . . . ; see Cornelius v. NAACP

Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439,

3448, 87 L.Ed.2d 567 (1985) (public forum may be created by

government designating ‘place or channel of communication . . .

for the discussion of certain subjects’). While a speaker may not

be stopped from speaking because the moderator disagrees with

the viewpoint he is expressing, see Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 60-61, 103 S.Ct. 948, 963, 74

L.Ed.2d 794 (1983) (Brennan, J., dissenting), it certainly may

stop him if his speech becomes irrelevant or repetitious.” (White,

supra, 900 F.2d at p. 1425, fns. omitted.)

44

“Similarly, the nature of a Council meeting means that a

speaker can become ‘disruptive’ in ways that would not meet the

test of actual breach of the peace, see Gooding, 405 U.S. at 526-

27, 92 S.Ct. at 1108, or of ‘fighting words’ likely to provoke

immediate combat. See Chaplinsky v. New Hampshire, 315 U.S.

568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). A speaker may

disrupt a Council meeting by speaking too long, by being unduly

repetitious, or by extended discussion of irrelevancies. The

meeting is disrupted because the Council is prevented from

accomplishing its business in a reasonably efficient manner.

Indeed, such conduct may interfere with the rights of other

speakers.

“Of course the point at which speech becomes unduly

repetitious or largely irrelevant is not mathematically

determinable. The role of a moderator involves a great deal of

discretion. Undoubtedly, abuses can occur, as when a moderator

rules speech out of order simply because he disagrees with it, or

because it employs words he does not like. But no such abuses

are written into Norwalk’s ordinance, as the City and we

interpret it. Speakers are subject to restriction only when their

speech ‘disrupts, disturbs or otherwise impedes the orderly

conduct of the Council meeting.’ So limited, we cannot say that

the ordinance on its face is substantially and fatally overbroad.

See Broadrick v. Oklahoma [, supra,] 413 U.S. [at p.] 615 (to

invalidate statute on its face, overbreadth ‘must not only be real,

but substantial as well, judged in relation to the statute’s plainly

legitimate sweep.’)” (White, supra, 900 F.2d at pp. 1425-1426, fn.

omitted.)

Ribakoff also relies on Norse v. City of Santa Cruz (9th Cir.

2010) 629 Fed.3d 966 (Norse).) Norse was a viewpoint

45

discrimination case which considered the scope of regulation

which a legislative body may impose following the close of the

period for public comment. In commenting on its earlier opinion

in White, the Norse court explained: “In White[, supra], 900 F.2d

1421 . . . , we explained that speech must ‘disrupt[,] disturb[ ] or

otherwise impede[ ] the orderly conduct of the Council meeting’

before the speaker could be removed. [Citation.]” (Norse, supra,

at p. 979 (conc. opn. of Kozinski, C.J.).)

Contentions similar to those made here were made in Kindt

v. Santa Monica Rent Control Bd. (9th Cir. 1995) 67 F.3d 266

(Kindt).) There, the Ninth Circuit upheld the rent control board’s

rules limiting to three minutes speakers’ individual presentations

to that board on agenda items, as well as a separate three-minute

limit for each speaker during the separate, general public

comment portion of its meetings. In upholding these limitations

on public speakers, the court reasoned: “The Board regulations

restricting public commentary to three minutes per item at the

end of each meeting are the kind of reasonable time, place, and

manner restrictions that preserve a board’s legitimate interest in

conducting efficient, orderly meetings. See [Madison, supra,] 429

U.S. at [p.] 175 [f]n. 8 . . . (‘Plainly, public bodies may confine

their meetings to specified subject matter’); Wright v. Anthony,

733 F.2d 575, 577 (8th Cir.1984) (five-minute limitation on

presentation to congressman was a reasonable restriction and

served significant governmental interest in conserving time and

ensuring that all had an opportunity to speak). [The plaintiff]

was not entitled to an ‘equal time’ response period to rebut the

46

views of the item 4 speakers at the moment they concluded their

remarks.”26 (Id. at p. 271.)

In White, the court pointed out the importance of placing

time limits on speakers: so that the legislative business can be

accomplished. Ribakoff’s arguments to the contrary—that time

limits are a deprivation of his First Amendment right—are

defeated by the holdings of White, Norse and Kindt. Nor do any

of the other cases which he cites lend support to his claims that

time limits on public speakers at meetings of legislative bodies

should be unfettered.

Although he cites White and Norse, Ribakoff rejects the

holdings of these cases that there are limits to public

participation in the course of meetings of bodies such as the

Board, limits that include time constraints on speaking on

individual agenda items, as in the present case. Thus, Ribakoff

rejects the precedent that a rule providing for three minutes per



26 Of particular note is the similarity in the description of the

opportunities for persons to address the Norwalk City Council to

those afforded to persons desiring to speak before the Board in

the present case: “The Norwalk City Council offers two kinds of

opportunity to citizens to address the Council at meetings.

During the regular part of the meeting, citizens can sign up to

speak with regard to agenda items. Norwalk Mun. Code [former]

§ 2-1.1.b.3[, now § 2.08.020(B)]. During a separate portion of the

meeting devoted to ‘Oral Communications,’ citizens may be

recognized from the floor to address any topic they choose, subject

to the Council’s determination of relevance. Id. at [former] § 2-

1.1.c.2[, now § 2.08.020(C)].” (White, supra, 900 F.2d at p. 1425,

fn. 4.) The Board offers similar opportunities.

47

speaker does not offend the First Amendment.27 (See Chaffee v.

San Francisco Public Library Com. (2005) 134 Cal.App.4th 109,

115 [upholding that respondent’s rule limiting speakers to “‘up to

three minutes’”].)

d. Content-based restriction.

Ribakoff also contends that the three-minute limit on

public speakers on any agenda item is a “content-based speech

restriction.” Kindt expressly rejects such a contention. (Kindt,

supra, 67 F.3d at p. 272.) Nor is there any evidence to support

Ribakoff’s claim that his second effort to speak was denied based

on what he might say. He had already spoken for the time

permitted by the Board without any evidence that his remarks

had been censored.



27 In his Statement of Tentative Decision, the trial judge

describes what occurred when Ribakoff attempted to speak a

second time, just as the Board was going to deliberate and vote

on item 10: “[Ribakoff] at that point, rose from his seat, came to

the podium and commenced speaking over the open microphone.

The chair told [Ribakoff] he had already spoken for three

minutes, and she said that [Ribakoff] could make his comments

to staff after the meeting. [Ribakoff] said he had not completed

his comments.” The trial judge then quotes Ribakoff as stating,

“I’m asking for more time. I do have a First Amendment right to

address these issues, and your time-place-manner regulation at

this podium has to be reasonable. If there is no reason to . . .

interrupt my conversation, then the time-place-manner

regulations are irrelevant and not enforceable. So on First

Amendment Grounds I ask just for a few more minutes.” (Italics

added.) The holdings of White and Norse demonstrate the error

in Ribakoff’s claims.

48

There is no evidence the reason he was not allowed more

time than that permitted by the Board’s rule concerned the

content of what he might say. And, even if one accepts, arguendo,

Ribakoff’s premise that any temporal restriction on speech

carries with it some restriction on content, such a restriction is

permissible so long as the “content” restriction is “viewpoint

neutral and [is] enforced that way.” (Norse, supra, 629 F.3d at

p. 975; Kindt, supra, 67 F.3d at pp. 270-271.) A restriction on a

speaker’s time to speak inevitably restricts what the speaker can

say in the time allotted. Such a restriction is not per se a

restriction on the substance of the remarks.

4. Other First Amendment Claims

Because the three minutes per public speaker rule clearly

meets constitutional concerns, and there is no evidence it was

applied based on the content of Ribakoff’s stated or intended

remarks, we do not further consider his argument that either

iteration of the Board’s speech rule violates the First

Amendment, whether on the face of the rule or as applied.28



28 Ribakoff also asserts the trial court erred by failing to

revise its statement of decision to make 15 specific findings. The

trial court declining to do so was not error. A court is not

required to discuss each question listed in a party’s request. All

that is required is an explanation of the factual and legal basis

for the court’s decision regarding the principal controverted

issues. (Hellman v. La Cumbre Golf & Country Club (1992) 6

Cal.App.4th 1224, 1230.) Ribakoff’s request sought far more

detail than required by Code of Civil Procedure section 632 or by

California Rules of Court, rule 3.1590.

49

V. Absence of Adoption of Findings Concerning the

September Version of the Speech Code

Ribakoff contends the second iteration of the Board’s

speech rules is void because when it was put in force the Board

did not “adopt[] . . . findings demonstrating the interest[]

protected by the limitation and the need for protecting that

interest.” In making this claim, Ribakoff relies on article I,

section 3, subdivision (b)(2) of the state Constitution.29

However, Ribakoff presents no argument of any kind in

support of this claim. Instead, Ribakoff states, “Article [I] does

not . . . describe what happens if a statute or court ruling lacks

the required findings. It is safe to assume that it requires an

offending statute to be declared void. If it is safe to assume that

an offending statute must be declared void, then the offending

judicial ruling must also be void.” (Italics added.)

Ribakoff bears the burden of supporting his arguments

with cogent authorities. As he has not done so, this argument is

deemed waived. (Harding v. Harding (2002) 99 Cal.App.4th 626,

635; Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [brief

without legal argument and citation to authorities on the points

made may be treated as waived or abandoned].)



29 California Constitution, article I, section 3, subdivision

(b)(2) provides: “A statute, court rule, or other authority,

including those in effect on the effective date of this subdivision,

shall be broadly construed if it furthers the people’s right of

access, and narrowly construed if it limits the right of access. A

statute, court rule, or other authority adopted after the effective

date of this subdivision that limits the right of access shall be

adopted with findings demonstrating the interest protected by

the limitation and the need for protecting that interest.”

The judgment is affirmed. Each party is to bear its own costs on appeal.