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c. Litigation.

(1) In General. Closed sessions are permitted to confer with, or to receive advice from
the agency’s legal counsel regarding pending litigation against the agency when discussion in
open session would prejudice the agency’s position in the litigation.

(Government Code § 54956.9; Shapiro v. Board of Directors of the Centre City Development
Corporation (2005) 134 Cal.App.4th 170.)

(2) “Pending Litigation.” Litigation includes court actions (including eminent domain
proceedings) and adjudicatory proceedings before an administrative agency, hearing officer, or
arbitrator. Litigation is deemed pending in four situations:

• Litigation has been formally initiated;

(Government Code § 54956.9(d)(1).)

• There is significant exposure to litigation in the opinion of the legislative body
on the advice of legal counsel, based upon “existing facts and circumstances”;

(Government Code § 54956.9(d)(2).)

• Based on “existing facts and circumstances,” the legislative body is meeting
only to decide whether there is significant exposure to litigation that would
authorize a closed session under Government Code section 54956.9(d)(2);

(Government Code § 54956.9(d)(3).)

• The legislative body has decided, or is deciding whether, to initiate litigation.

(Government Code § 54956.9(d)(4).)

(3) What Constitutes “Existing Facts and Circumstances.” The Act defines the key
phrase “existing facts and circumstances” in terms of five exclusive situations that can justify an
opinion that there is significant exposure to litigation. The five situations are:

• Facts and circumstances that might result in litigation against the agency but
which the agency believes are not yet known to a potential plaintiff or
plaintiffs, which facts and circumstances need not be disclosed.

• Facts and circumstances, including, but not limited to, an accident, disaster,
incident, or transaction occurrence that might result in litigation against the
agency and that are known to a potential plaintiff, or plaintiffs, which facts or
circumstances shall be publicly stated on the agenda or announced.

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