Fleming v. Capistrano Unif. School Dist. CA4/3

Filed 1/7/15 Fleming v. Capistrano Unif. School Dist. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMES A. FLEMING,

Plaintiff and Appellant, G048523

(Consol. with G048771)

v.

(Super. Ct. No. 30-2011-00509686)

CAPISTRANO UNIFIED SCHOOL

DISTRICT, OPINION

Defendant and Respondent.

Appeal from a judgment and postjudgment order of the Superior Court of

Orange County, James Di Cesare, Judge. Affirmed.

Law Office of J. Scott Smith and J. Scott Smith for Plaintiff and Appellant.

Woodruff, Spradlin & Smart, Daniel K. Spradlin and M. Lois Bobak for

Defendant and Respondent.

* * *

INTRODUCTION

James A. Fleming sued Capistrano Unified School District (CUSD) for

breach of contract arising out of his former employment as CUSD superintendent. He

alleged CUSD breached an agreement to provide him a defense to criminal charges and

an agreement to pay him 18 months of salary as severance pay in exchange for his

resignation as superintendent. The trial court granted CUSD’s motion for summary

judgment and motion for attorney fees and costs. Fleming appealed from the judgment

and from the order awarding CUSD attorney fees. We affirm.

Based on the undisputed facts, we conclude CUSD was not contractually

obligated to provide Fleming a defense to the criminal charges or to pay him 18 months

of salary as severance pay. In both situations, the CUSD board of trustees (the CUSD

Board) did not take the official action required by law to contractually bind CUSD. In

addition, Fleming did not timely present a government claim and, therefore, his claim for

severance pay is barred. The trial court did not err by awarding CUSD attorney fees

because substantial evidence supported the court’s finding that Fleming’s claims arose

out of a contract with an attorney fees provision.

FACTS

I.

Fleming’s Employment as Superintendent

Fleming was hired as CUSD superintendent in 1991 for a four-year term

pursuant to a written employment agreement, referred to as the superintendent contract.

Over the years, the superintendent contract was amended and extended several times, and

the final contract had an expiration date of June 30, 2008. Each of the amendments or

extensions to the superintendent contract was negotiated between Fleming and the CUSD

Board’s president. Sometimes Fleming worked with CUSD’s legal counsel to arrive at

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specific terms. Once the terms were worked out, the CUSD Board’s president placed the

amendment or extension on the agenda of a meeting of the CUSD Board, at which the

CUSD Board would discuss the amendment or extension, make changes, or accept the

amendment or extension as presented. Only after the CUSD Board discussed and

approved the amendment or extension would the CUSD Board’s president sign it.

In 2005, a group of residents called for terminating Fleming’s employment

and began circulating petitions to recall the CUSD Board. The Orange County Registrar

of Voters rejected the petitions, an action a panel of this court upheld in Capo for Better

Representation v. Kelley (2008) 158 Cal.App.4th 1455, and the recall effort failed.

Nonetheless, some residents continued their efforts to remove the CUSD Board. Some

appeared at meetings of the CUSD Board and stated the Orange County District Attorney

intended to investigate and indict Fleming.

II.

Amendment No. 11

Fleming told the CUSD Board’s president, Marlene Draper, that he was

considering resigning and wanted an inducement to stay. In response, on July 12, 2006,

the CUSD Board approved amendment No. 11 to the superintendent contract

(Amendment No. 11). It provided, among other things, that the superintendent contract

could be changed or modified only by the mutual written consent of the parties and that

the contract could be terminated only by the parties’ mutual consent or Fleming’s gross

misconduct. Amendment No. 11 provided that if the contract were terminated by mutual

consent, Fleming would be entitled to severance pay equal to one month of salary for

each month remaining on the contract, up to a maximum of 18 months. Finally,

Amendment No. 11 provided, “[i]n the event of any dispute between [Fleming] and the

District with respect to this contract or any benefits provided by this contract, the Board

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will pay legal fees and related costs incurred by [Fleming] to enforce rights under this

contract, unless [Fleming] is convicted of criminal act[s] related to job performance.”

Soon after the CUSD Board approved Amendment No. 11, according to

Fleming, Draper told him the CUSD Board regretted its decision and now wanted him to

leave. Fleming stated he told Draper he had turned down other opportunities in order to

stay at CUSD and intended to “pursue the rights of my contract.” By this time, both

Fleming and Draper were aware the district attorney was conducting an investigation into

whether Fleming was maintaining an unlawful “enemies list.”

Fleming claimed that in a series of conversations in July 2006, Draper told

him that if he resigned quietly, then, pursuant to Amendment No. 11, CUSD would pay

for his defense against the criminal charges and, provided he were not convicted, pay him

18 months of salary as severance pay. Fleming asked, “how we would know if I was

ever going to be convicted or not convicted.” Fleming stated that Draper replied the

CUSD Board planned to hire an independent investigator, and if the investigator

concluded Fleming had not committed an offense, then CUSD would pay him the full 18

months of salary as severance pay.

III.

The CUSD Board’s Acceptance of Fleming’s Retirement

On July 29, 2006, Fleming notified the CUSD Board he intended to retire

effective August 31, 2006. When the CUSD Board met on July 29, some members of the

CUSD Board publicly praised Fleming’s service. Some members of the public also

praised Fleming’s service, while others strongly criticized Fleming and his leadership as

superintendent, and accused him of unethical conduct.

The CUSD Board then recessed into closed session for two and

three-quarter hours to discuss “Public employment, Superintendent, Superintendent

Support Personnel, Public Employee Discipline/Dismissal/Release.” The CUSD Board’s

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minutes reflect that while in closed session, the CUSD Board passed two motions:

(1) “Direct legal counsel to secure the services of an independent investigator to conduct

an investigation into various allegations of wrongdoing by district employees”; and

(2) “Accept the Superintendent’s retirement effective August 31.” The CUSD Board did

not terminate Fleming’s employment for gross misconduct.

IV.

Criminal Investigation and Provision of Defense

In August 2006, the CUSD Board retained retired Orange County Superior

Court Judge Stuart T. Waldrip to independently investigate allegations that current and

former CUSD employees, including Fleming, had engaged in misconduct. On

December 28, 2006, Judge Waldrip presented the CUSD Board with a written report

concluding that, with one possible exception not involving Fleming, no CUSD employee

had engaged in unlawful activity. As to Fleming, Judge Waldrip concluded: “He should

have been more aware of the potential unfavorable impact on the District of his conduct.

But he is gone.” The CUSD Board considered and debated Judge Waldrip’s report at a

public meeting on March 5, 2007.

By mid-August 2006, it was clear the Orange County District Attorney was

conducting an investigation of Fleming. In a letter dated August 31, 2006, Fleming’s

attorney, Ronald G. Brower, requested CUSD to “utilize the discretion permitted in

Education Code Sections 35204 and 35205 as well as Government Code Section 995.8 to

provide for legal defense of your Superintendent” for “matters which may come before

the Grand Jury, the District Attorney and the courts related to actions taken by the

Superintendent in the performance of his duties.” A CUSD staff report recommended

CUSD retain counsel for Fleming through the grand jury proceedings, with the notation

the CUSD Board had the ability at any time to terminate a contract with Fleming’s

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counsel. On September 11, 2006, the CUSD Board accepted the recommendation and

voted to approve a contract for legal services with Brower.

At the public meeting held on March 5, 2007, the CUSD Board voted to

terminate the contract with Brower and to cease paying Fleming’s criminal defense fees.

Fleming was indicted by the Orange County Grand Jury in May 2007. In August 2007,

the CUSD Board denied Fleming’s request that CUSD resume paying the cost of

Fleming’s criminal defense.

V.

Fleming’s Request for Reimbursement of Fees

The Orange County Superior Court dismissed two of the three criminal

charges alleged against Fleming. A panel of this court granted Fleming’s petition for writ

of mandate and directed the superior court to dismiss the remaining charge. (Fleming v.

Superior Court (2010) 191 Cal.App.4th 73.) The California Supreme Court denied the

People’s petition for review.

On June 21, 2011, Fleming’s counsel presented a letter to the CUSD Board,

demanding (1) reimbursement of attorney fees and legal expenses incurred by Fleming in

defending the criminal charges and (2) payment of 18 months of salary as severance pay.

The demand was returned on the ground it had not been presented within the time

required by the Government Claims Act (Gov. Code, § 810 et seq.), and later the CUSD

Board denied Fleming’s application to present a late claim.

PROCEDURAL HISTORY

Fleming filed a complaint against CUSD in September 2011 and an

amended complaint in February 2012. The amended complaint asserted one cause of

action—for breach of contract. Fleming alleged he was contractually entitled to 18

months of salary as severance pay, payment of his criminal defense fees, and payment of

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attorney fees incurred in defending several civil lawsuits against him for actions related

to his employment as CUSD superintendent.

The trial court granted CUSD’s motion for summary judgment. The court

ruled (1) Fleming could not recover severance pay because his claim under the

Government Claims Act was not timely presented; (2) CUSD was not obliged under

Amendment No. 11 or relevant provisions of the Government Code to provide Fleming a

defense to the criminal charges; and (3) CUSD fulfilled whatever obligation it might have

had to provide Fleming a defense in the civil lawsuits. Judgment was entered in April

2013. Fleming timely filed a notice of appeal from the judgment, which appeal was

docketed as case No. G048523.

CUSD moved to recover attorney fees and costs. By order dated July 15,

2013, the trial court granted CUSD’s motion and awarded CUSD $123,233 in attorney

fees and $6,660.10 in costs. Fleming timely filed a notice of appeal from that order,

which appeal was docketed as case No. G048771. We ordered consolidation of case

No. G048523 with case No. G048771.

DISCUSSION: APPEAL FROM THE JUDGMENT

I.

Standard of Review

In case No. G048523, Fleming challenges the judgment entered after the

trial court granted CUSD’s motion for summary judgment. A motion for summary

judgment or summary adjudication is properly granted if the moving papers establish

there is no triable issue of material fact and the moving party is entitled to judgment as a

matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 843.) “‘Because this case comes before us after the trial court

granted a motion for summary judgment, we take the facts from the record that was

before the trial court when it ruled on that motion. [Citation.] “‘We review the trial

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court’s decision de novo, considering all the evidence set forth in the moving and

opposing papers except that to which objections were made and sustained.’” [Citation.]

We liberally construe the evidence in support of the party opposing summary judgment

and resolve doubts concerning the evidence in favor of that party.’ [Citation.]”

(Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)

II.

Fleming Cannot Recover on His Claim for Provision of a

Defense to the Criminal Charges.

A. The Issue

The first issue raised by the appeal from the judgment is whether CUSD

breached an agreement to provide Fleming a defense to the criminal charges. Based on

the undisputed facts, and exercising de novo review, we conclude the answer to that

question is no.

At the outset, it is necessary to clarify what is and is not in issue. In

September 2006, the CUSD Board voted to approve payment of Fleming’s criminal

defense legal fees and expenses through the grand jury investigation, and, in March 2007,

voted to cease paying those fees and expenses. The CUSD Board was entitled to retract

its formal decision to provide Fleming a defense. Fleming does not contend otherwise;

instead, he argues on appeal there is a triable issue of fact as to whether CUSD was

required under an implied contract to provide him a defense to the criminal charges. He

argues the CUSD Board “acted in a manner consistent with the promises made by

Ms. Draper, and this, when taken together with the totality of the other circumstances, is

more than ample evidence that the parties had reached a mutual understanding which

gave rise to binding contractual obligations.”

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B. CUSD Never Took Official Action to Provide Fleming a Defense.

A governmental entity may not be held liable under an implied contract if a

statute prescribes the only means by which the governmental entity may enter into a

contract. (Reams v. Cooley (1915) 171 Cal. 150, 154; County of Sonoma v. Santa Rosa

(1894) 102 Cal. 426, 429.) “Where the statute prescribes the only mode by which the

power to contract shall be exercised the mode is the measure of the power. A contract

made otherwise than as so prescribed is not binding or obligatory as a contract and the

doctrine of implied liability has no application in such cases.” (Reams v. Cooley, supra,

at p. 154.) As stated in Strauch v. San Mateo Junior College Dist. (1930) 104 Cal.App.

462, 464-465: “The rule is well settled . . . that when by statute the power of a board or

municipality to make a contract is limited to a certain prescribed method to which there

has been no attempt to conform, a contract attempted to be made is void, and no implied

liability can arise for the benefits received thereunder [citations].”

Several statutes prescribe the means by which CUSD could enter into a

contract with Fleming to provide him a criminal defense. Specific to this issue is

Government Code section 995.8, which states, in relevant part: “A public entity is not

required to provide for the defense of a criminal action or proceeding . . . brought against

an employee or former employee, but a public entity may provide for the defense of a

criminal action or proceeding . . . brought against an employee or former employee if:

[¶] (a) The criminal action or proceeding is brought on account of an act or omission in

the scope of his employment as an employee of the public entity; and [¶] (b) The public

entity determines that such defense would be in the best interests of the public entity and

that the employee or former employee acted, or failed to act, in good faith, without actual

malice and in the apparent interests of the public entity.”

“In contrast to the provisions relating to the mandated defense of public

employees in civil actions, Government Code section 995.8 affirmatively declares that

public entities are not required to provide for the defense of criminal actions brought

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against their employees, but instead permits the entities to provide defenses in certain

circumstances. [¶] ‘[W]here . . . a criminal action is involved, the entity is given the

right to refuse the employee a defense arbitrarily, with only a permissive right to

compensate him for his attorney’s fees and costs in the instances noted.’ [Citation.]”

(Los Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168,

176, fn. omitted; see City of Bell v. Superior Court (2013) 220 Cal.App.4th 236, 255

[“[Government Code section 995.8] is restrictive. It indicates that a public entity ‘may

provide’ a defense for a public employee if the two circumstances set forth in the statute

exist; it does not in any way suggest that a public entity may also provide a defense if

those circumstances do not exist.”].)

Under Government Code section 995.8, CUSD was not required to provide

Fleming a defense to the criminal charges and had discretion to do so only if the CUSD

Board would have to take official action and find the two conditions of the statute had

been met. In that regard, Education Code section 35163 states: “Every official action

taken by the governing board of every school district shall be affirmed by a formal vote

of the members of the board, and the governing board of every school district shall keep

minutes of its meetings . . . in which shall be recorded every official act taken.” (See,

e.g., Cloverdale Union H. S. Dist. v. Peters (1928) 88 Cal.App. 731, 736 [board approval

of contract required].)

In addition, to the extent Fleming claimed an implied modification or

amendment to his employment contract to provide him a criminal defense, Government

Code section 53262, subdivision (a) provides that “[a]ll contracts of employment with a

superintendent, deputy superintendent, [or] assistant superintendent . . . shall be ratified

in an open session of the governing body which shall be reflected in the governing body’s

minutes.”

The cited code provisions prescribe the means by and circumstances under

which a government entity may agree to provide a criminal defense for an employee, and

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the means by which a school district, in particular, may enter into a contract of

employment with the superintendent. Therefore, as a matter of law, CUSD was

contractually obligated to provide Fleming a defense to the criminal charges only if the

CUSD Board acted in the statutorily prescribed manner. Under the undisputed facts, the

only official action taken to provide Fleming a criminal defense was made on

September 11, 2006, when the CUSD Board voted to provide him a defense through the

grand jury proceedings. When the CUSD Board met on July 29, 2006, it did not take

official action to provide Fleming a criminal defense. While in closed session, the CUSD

Board passed only two motions recorded in the minutes—(1) to hire an independent

investigator and (2) to accept Fleming’s retirement. Nowhere do the official minutes of

the CUSD Board’s July 29, 2006, meeting reflect an agreement to provide Fleming a

criminal defense or to amend or modify the superintendent contract.

C. No Implied Contract

Fleming cites Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240

(Youngman) and Retired Employees Assn. of Orange County, Inc. v. County of Orange

(2011) 52 Cal.4th 1171 (Retired Employees), as supporting his contention CUSD could

be bound under an implied contract.

In Youngman, supra, 70 Cal.2d at page 243, the plaintiffs alleged an

irrigation district was bound by an implied contract to provide its employees with annual

merit pay increases. The California Supreme Court held the trial court erred in sustaining

a demurrer because the complaint sufficiently pleaded facts to support an implied

contract with the irrigation district. (Youngman, supra, at pp. 244, 247.) The court

confirmed the established rule that “[g]overnmental subdivisions may be bound by an

implied contract if there is no statutory prohibition against such arrangements.” (Id. at

p. 246.) The court noted the irrigation district’s contracting authority was found in the

Water Code, and “[t]he Water Code prescribes no formal requirements for the

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consummation of an employment contract by the board.” (Ibid.) Here, in stark contrast,

the Government Code and the Education Code prescribe formal requirements for

agreeing to provide a criminal defense for an employee and for entering into an

employment contract with a superintendent of schools.

In Retired Employees, supra, 52 Cal.4th at page 1176, the California

Supreme Court addressed the following question certified by the Ninth Circuit Court of

Appeals: “‘Whether, as a matter of California law, a California county and its employees

can form an implied contract that confers vested rights to health benefits on retired

county employees.’” Citing Youngman, the court concluded, “a county may be bound by

an implied contract under California law if there is no legislative prohibition against such

arrangements, such as a statute or ordinance.” (Retired Employees, supra, at p. 1176.)

The basis and reasoning of the court’s decision were that “[u]nder California law,

contractual rights may be implied from legislative enactments under limited

circumstances.” (Id. at p. 1185.) The court explained the plaintiff did not seek to recover

“‘under a contract made in violation of the particularly prescribed statutory mode,’” but

instead claimed to have “contractual rights that are implied in resolutions duly approved

by County.” (Id. at p. 1187.)

Retired Employees does not support Fleming because he does not claim to

have contractual rights that are implied in resolutions or acts duly approved by the CUSD

Board. He does not argue that a right to have CUSD provide him a criminal defense can

be implied from Amendment No. 11 or from the CUSD Board’s official action, later

retracted, to provide him a defense through the grand jury proceedings. Instead, he

argues he has the right to recover under an implied contract that was not made in

compliance with the prescribed statutory mode. Under a long line of authority,

culminating in Retired Employees, CUSD cannot be bound under such an implied

contract. (Retired Employees, supra, 52 Cal.4th at p. 1176; Youngman, supra, 70 Cal.2d

at p. 246; Reams v. Cooley, supra, 171 Cal. at p. 154; County of Sonoma v. Santa Rosa,

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supra, 102 Cal. at p. 429; Strauch v. San Mateo Junior College Dist., supra, 104

Cal.App. at pp. 464-465.)

Although no implied contract can arise, the undisputed facts demonstrate

that both the CUSD Board and Fleming knew and understood the statutory prescriptions

for contracting. Each time Fleming’s contract was amended or extended, the CUSD

Board’s president presented the amendment or extension to the CUSD Board for

discussion and approval. When the CUSD Board decided to provide Fleming a defense

through the grand jury proceedings, it did so by formally passing a motion reflected in the

minutes, after having received a memorandum from staff, addressing the requirements of

Government Code section 995.8.

III.

Fleming Cannot Recover on His Claim for

18 Months of Salary as Severance Pay.

A. Framing the Issue

The second issue raised by the appeal from the judgment is, broadly

speaking, whether Fleming can recover 18 months of salary as severance pay from

CUSD. To better frame the issue, it is important to trace the evolution of Fleming’s

theory for recovery of severance pay. In the amended complaint, Fleming alleged he was

entitled to recover 18 months of salary as severance pay pursuant to the terms of

Amendment No. 11 because he was forced to resign as CUSD superintendent. CUSD, in

its motion for summary judgment, argued Fleming’s claim for severance pay was barred

because Fleming did not submit a government claim within one year after August 31,

2006, the effective date of his retirement, as required by Government Code section 905.

In opposition to the motion for summary judgment, Fleming argued his

right to severance pay arose out of “the parties’ contractually-ratifying Mutual

Agreement and the Superintendent Contract, whereby CUSD expressly promised

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Fleming that, so long as Fleming was not convicted of, or determined through official

investigation to have committed, a criminal act, CUSD would pay Fleming his

contractual 18-month cash settlement.” This description is a mouthful. It seems to mean

that, during private meetings in July 2006, Fleming and Draper reached an oral

agreement whereby CUSD would pay Fleming the maximum 18 months of salary as

severance pay, if Fleming agreed to resign as superintendent and was not convicted of a

criminal act, and this oral agreement ratified Amendment No. 11.

In the appellant’s opening brief, Fleming further refined this agreement to

mean: “Plaintiff[’]s rights to the 18-month cash settlement were based on the resignation

agreement he negotiated with Ms. Draper, not on the language of Amendment 11 alone.

. . . Amendment 11 does not, in and of itself, give rise to an entitlement to 18 months’

severance pay. Rather by incorporating the terms of Government Code section 53260,

Amendment 11 merely provides that if the parties mutually agreed to terminate the

contract, the maximum cash settlement Plaintiff ‘may’ receive is 18 months’ salary.

Since Amendment 11 does not provide that Plaintiff shall receive 18-months’ salary, but

instead refers to a ‘settlement[’] that he ‘may’ receive, the contract contemplates that

before a mutual agreement to terminate the contract can arise, there will be additional

negotiations as to the terms of any ‘settlement’ of Plaintiff[’]s rights. Plaintiff’s

entitlement to the 18-month cash settlement is thus based on the promises made by

Marlene Draper that Plaintiff would receive the maximum possible cash settlement so

long as he was not convicted of a crime.” Based on this alleged oral agreement with

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Draper reached in July 2006, Fleming argues his breach of contract cause of action did

not accrue until December 2010, when a panel of this court issued Fleming v. Superior

Court, supra, 191 Cal.App.4th 73.

1

Fleming calls this the “resignation agreement” and, for convenience, so shall we.

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Fleming no longer pursues the theory he is entitled to severance pay based

on Amendment No. 11 alone: He states in his opening brief that “Amendment 11 does

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not, in and of itself, give rise to an entitlement to 18 months’ severance pay.” After

briefing was completed, we issued an order inviting the parties to submit supplement

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briefs addressing two issues. The first issue was “[w]hether appellant’s claim for breach

of contract to pay 18 months of severance pay under the ‘resignation agreement’ is

without merit under Education Code section 35163 and Government Code section 53262,

subdivision (a).” Fleming submitted a supplemental brief in which he argues the CUSD

Board, by voting to accept his resignation, ratified the resignation agreement, and “[t]he

acceptance of an offer of resignation is a form of a contract, and nothing in either statute

prohibits a court from relying on ordinary contract principles to imply additional terms

into that contract where necessary to protect the reasonable expectations of the parties.”

Thus, in the supplemental brief, Fleming posits the theory that the CUSD Board’s

acceptance of his resignation in closed session, which was formally recorded in the

CUSD Board’s meeting minutes, constituted a contract that included, as extrinsic or

implied terms, the resignation agreement he reached with Draper. As consideration,

Fleming argues, the resignation agreement called for payment to him of 18 months of

salary as severance pay in exchange for his immediate resignation as superintendent.

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The breach of contract cause of action, as alleged in the amended complaint, was

based on Amendment No. 11, which stated that in the event of contract termination, “the

provisions of Government Code Section 53260, et seq. shall apply, which sections limit

the maximum cash settlement that an employee may receive to an amount equal to the

monthly salary of the Superintendent, multiplied by the number of months left on the

unexpired term of the contract, not to exceed eighteen (18) months . . . .” Amendment

No. 11 does not condition payment of severance on Fleming being exonerated of any

criminal charges. Fleming resigned effective August 31, 2006. Thus, were Amendment

No. 11 the sole basis for Fleming’s breach of contract cause of action, it would be barred

for failure to file a government claim within one year of accrual as required by

Government Code section 911.2.

3

By issuing the order, we discharged our duties under Code of Civil Procedure

section 437c, subdivision (m)(2).

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As we shall explain, based on the undisputed facts, Fleming cannot recover

on his claim for severance pay under the other theories he posits—(1) the resignation

agreement as an independent contract ratifying Amendment No. 11, and (2) the CUSD

Board’s action in accepting his retirement as ratifying the resignation agreement. An

alternative ground for affirming summary judgment on the matter of severance pay is

Fleming’s failure to timely file a claim under Government Code section 911.2.

B. The Terms of the Resignation Agreement Are Unenforceable.

1. The Resignation Agreement as an Independent Contract Theory

Under the undisputed facts, the resignation agreement was unenforceable as

an independent contract as a matter of law. In reviewing an order granting summary

judgment, we must liberally construe the evidence in support of the opposing party

(Hartford, supra, 59 Cal.4th at p. 286) and, therefore, we will assume that the evidence

established that in July 2006, Fleming and Draper orally reached the resignation

agreement. But, as we have explained, every official action of a school district must be

affirmed by a formal vote of the school board and recorded in the minutes. (Educ. Code,

§ 35163.) “[M]embers of a school board acting separately as individuals may not legally

bind the district to the obligations of a contract.” (Fleming v. Board of Trustees (1931)

112 Cal.App. 225, 228.)

In addition, all employment contracts with a superintendent must be ratified

in an open session of the governing body and reflected in the governing body’s minutes.

(Gov. Code, § 53262, subd. (a).) The resignation agreement was, in effect, a contract of

employment under Government Code section 53262, subdivision (a), because it directly

related to the terms and conditions of Fleming’s employment with CUSD. As shown by

Amendment No. 11, Fleming and CUSD treated the matter of severance pay as part of

the employment contract, and Fleming has referred to the resignation agreement as

“contractually-ratifying” Amendment No. 11.

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There is no evidence the CUSD Board ever affirmed or ratified, and

recorded in the official minutes, an agreement by which it would pay Fleming 18 months

of salary as severance pay in consideration of his resigning. The CUSD Board’s minutes

for July 29, 2006 reflect only that, in closed session, the CUSD Board accepted

Fleming’s retirement. Neither Draper, nor any other member of the CUSD Board, acting

as an individual, could legally bind CUSD to the obligations of the resignation

agreement.

Because the resignation agreement was not made and approved in the

manner prescribed by statute, it does not exist or is unenforceable. (Reams v. Cooley,

supra, 171 Cal. at p. 154; Strauch v. San Mateo Junior College Dist., supra, 104

Cal.App. at pp. 464-465.) Also, Government Code section 53262, subdivision (b) states

that “[c]opies of any contracts of employment, as well as copies of the settlement

agreements, shall be available to the public upon request.” A member of the public

asking for a copy of the resignation agreement would be turned away emptyhanded.

2. The CUSD Board’s Acceptance of Fleming’s Resignation Theory

In his supplemental brief, Fleming argues, “when the board voted to accept

[his] resignation, it was ratifying the existence of a contract for [his] resignation,” and,

therefore, the court may look to extrinsic evidence to determine CUSD’s obligations.

The terms of the resignation agreement are unenforceable under this theory.

School district boards and other legislative bodies of local governmental

agencies are permitted to meet behind closed doors only in specific, statutorily prescribed

circumstances. (See, e.g., Gov. Code, §§ 54954.5-54957.1, 54957.6. 54957.8, 54957.10.)

Government Code section 54957, subdivision (b)(1) permits closed session meetings to

consider “the appointment, employment, evaluation of performance, discipline, or

dismissal of a public employee . . . .” Such closed session meetings “shall not include

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discussion or action on proposed compensation except for a reduction of compensation

that results from the imposition of discipline.” (Id., § 54957, subd. (b)(4).)

Government Code section 54957.1, subdivision (a) requires the legislative

body of a local agency to “publicly report any action taken in closed session and the vote

or abstention on that action of every member present” of the listed actions.

Subdivision (a)(5) of section 54957.1 states: “Action taken to appoint, employ, dismiss,

accept the resignation of, or otherwise affect the employment status of a public employee

in closed session pursuant to Section 54957 shall be reported at the public meeting during

which the closed session is held. Any report required by this paragraph shall identify the

title of the position. . . .”

When the CUSD Board met in closed session on July 29, 2006, it accepted

Fleming’s retirement and reported that action in the minutes pursuant to Government

Code section 54957.1, subdivision (a)(5). The minutes do not reflect any other board

action relating to Fleming’s retirement or resignation. We must presume the CUSD

Board performed its governmental duties (American Microsystems, Inc. v. City of Santa

Clara (1982) 137 Cal.App.3d 1037, 1042) and, therefore, the CUSD Board did not

discuss in closed session compensation or terms of a resignation agreement with Fleming.

Fleming argues Retired Employees, supra, 52 Cal.4th 1171, 1176, supports

his position that the CUSD Board’s acceptance of his resignation created a contract that

included the terms of the resignation agreement. We disagree. As we have explained,

the basis and reasoning of the California Supreme Court’s decision in Retired Employees

was that under limited circumstances California law allows contractual rights to be

implied from legislative enactments. (Id. at p. 1185.) The court concluded that, in

general, legislation may be said to create contractual rights “when the statutory language

or circumstances accompanying its passage ‘clearly “. . . evince a legislative intent to

create private rights of a contractual nature enforceable against the [governmental

body].”’” (Id. at p. 1187.) “A contractual right can be implied from legislation in

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appropriate circumstances. [Citation.] Where, for example, the legislation is itself the

ratification or approval of a contract, the intent to make a contract is clearly shown.”

(Ibid.)

By accepting Fleming’s retirement, the CUSD Board did not evince, and

certainly did not clearly evince, an intent to create contractual rights enforceable against

CUSD. The CUSD Board did not ratify or approve a contract, much less one for

severance pay, and the CUSD Board would not have been legally permitted to discuss

such a contract in closed session. (Gov. Code, § 54957, subd. (b)(4).) The act of

accepting Fleming’s retirement in closed session did not constitute ratification of an

undisclosed resignation agreement granting Fleming the right to collect 18 months of

severance pay from CUSD. Nor could the terms of the resignation agreement be implied

into the CUSD Board’s mere act of accepting Fleming’s retirement.

Enforcing the terms of the resignation agreement against CUSD would

contradict and undermine the protections afforded by the Ralph M. Brown Act,

Government Code section 54950 et seq. (the Brown Act). When enacting the Brown Act,

the Legislature declared: “[T]he Legislature finds and declares that the public

commissions, boards and councils and the other public 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. [¶] The people of this

State do not yield their sovereignty to the agencies which serve them. The people, in

delegating authority, do not give their public servants the right to decide what is good for

the people to know and what is not good for them to know. The people insist on

remaining informed so that they may retain control over the instruments they have

created.” (Gov. Code, § 54950.) “‘The Brown Act [citation] . . . is intended to ensure the

public’s right to attend the meetings of public agencies. . . . The Act thus serves 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.’” (McKee v.

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Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1316.) A backroom

agreement to pay a public servant 18 months of salary as severance pay, at a time when

some members of the public criticized his leadership and ethics, is the very kind of

“‘secret legislation’” (ibid.) the Brown Act intended to stop.

C. Fleming’s Claim for Severance Pay Is Time-barred.

1. Fleming Failed to Submit a Timely Government Claim.

In our supplemental briefing order, we invited the parties to address this

issue: “In light of appellant’s deposition testimony found at page 541 of volume 3 of the

appellant’s appendix, whether appellant’s claim for breach of contract to pay 18 months

of severance pay is without merit for failure to present a claim under Government Code

section 911.2 within one year of the date on which Judge Waldrip submitted the report of

his independent investigation.” We conclude that under the undisputed facts, Fleming’s

breach of contract cause of action for severance pay is time-barred.

A party seeking to hold a governmental entity liable for breach of contract

must file a claim under the Government Claims Act within one year after accrual of the

cause of action. (Gov. Code, § 911.2.) The one-year period for filing a government

claim applies to claims for damages based on breach of implied contract. (Voth v. Wasco

Public Util. Dist. (1976) 56 Cal.App.3d 353, 357.) “The purpose of requiring the filing

of claims, and of prescribing limited time frames in which such claims may be filed, is to

give the public entity the opportunity to investigate the facts while the evidence is fresh,

as well as to settle meritorious cases without the need of litigation.” (City of Ontario v.

Superior Court (1993) 12 Cal.App.4th 894, 902.)

Fleming filed his government claim against CUSD on June 21, 2011. His

claim for severance pay was untimely if his breach of contract cause of action accrued

before June 21, 2010. Accrual for purposes of Government Code section 911.2 is the

date on which the cause of action would be deemed to have accrued under the applicable

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statute of limitations. (Loehr v. Ventura County Community College Dist. (1983) 147

Cal.App.3d 1071, 1078.) “A cause of action for breach of contract ordinarily accrues at

the time of breach, and the statute begins to run at that time regardless whether any

damage is apparent or whether the injured party is aware of his or her right to sue.”

(3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 664.)

The terms of the resignation agreement, through which Fleming made his

claim for severance pay, were shown by his deposition testimony. Fleming testified he

and Draper agreed his right to severance pay would be contingent only on the results of

the independent investigation conducted by Judge Waldrip. Fleming testified as follows:

“Q. Have you told me everything you can recall that was discussed

between the two of you during these meetings?

“A. It’s just—[Draper] promised that both the legal fees and the 18-month

assessment would be forthcoming but constantly came back to the statement in the

contract that says provided you’re not convicted of a criminal violation. [¶] And I asked

her how we would know if I was ever going to be convicted or not convicted. That’s

when she told me about the board’s plan to do an investigation and that there would be

some report forthcoming at some point, and it was—if that report concluded what I hoped

or she hoped it would conclude, that at that point I could expect payment.

“Q. If the report concluded what?

“A. The report concluded that I was not guilty of any criminal violation,

because I was concerned that it was kind of open-ended, ‘unless you’re convicted of a

criminal act.’”

Judge Waldrip presented the report of his independent investigation on

December 28, 2006, and the CUSD Board considered and debated that report at a public

meeting on March 5, 2007. Fleming presented his government claim over four years

later. The claim was therefore untimely.

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Fleming argues no criminal charges were pending when he resigned and

“the possibility of a criminal indictment was highly speculative at best.” The lack of

pending criminal charges reinforces the conclusion that any oral agreement conditioned

severance pay on the outcome of the independent investigation. Otherwise, as Fleming

himself recognized, the condition would be open-ended, and he would never be entitled

to payment if no criminal charges were ever filed against him. Thus, to the extent the

resignation agreement was intended to ratify or become part of Amendment No. 11,

Fleming’s claim for severance pay accrued at the latest when Judge Waldrip presented

his report.

2. CUSD Is Not Estopped from Asserting an Untimely Government Claim.

Fleming argues CUSD should be estopped from asserting he presented an

untimely government claim. “It is well settled that a public entity may be estopped from

asserting the limitations of the claims statute where its agents or employees have

prevented or deterred the filing of a timely claim by some affirmative act.” (John R. v.

Oakland Unified School Dist. (1989) 48 Cal.3d 438, 445.) “Estoppel most commonly

results from misleading statements about the need for or advisability of a claim; actual

fraud or the intent to mislead is not essential.” (Ibid.) “The required elements for an

equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) the

party to be estopped must intend his or her conduct shall be acted upon, or must so act

that the party asserting the estoppel had a right to believe it was so intended; (3) the other

party must be ignorant of the true state of facts; and (4) the other party must rely upon the

conduct to his or her injury.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767,

1785.)

In Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th

1023, 1044-1045, the court surveyed cases finding an estoppel to invoke the time

limitations of the Government Claims Act and concluded: “These cases have the

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following in common: In each, the public entity or one of its agents engaged in some

calculated conduct or made some representation or concealed facts which induced the

plaintiff not to file a claim or bring an action within the statutory time; and in each, the

plaintiff acted promptly, almost always within a year, after the public entity’s conduct

which caused the estoppel ceased.” (Ortega v. Pajaro Valley Unified School Dist., supra,

at p. 1047.)

Fleming presented no evidence to show a member of the CUSD Board or

any CUSD agent or employee ever engaged in calculated conduct, made a

misrepresentation, or concealed facts to induce him not to present a government claim

within the statutory time limit. Fleming presented no evidence that anybody said or did

anything to suggest he was not required to present a timely government claim or to deter

him from doing so. In the discussions between Fleming and Draper in July 2006, before

he announced his retirement, Draper did not say anything to Fleming about presenting a

claim. Fleming argues he was entitled to rely on Draper’s representations to him that

CUSD would pay him 18 months of salary as severance pay if he were not convicted of a

crime. As we have explained, the evidence established at most that Draper told Fleming

that payment of the 18 months of salary as severance pay was contingent on the results of

the independent investigation. Fleming did not present his claim to CUSD until more

than four years after the results of Judge Waldrip’s investigation had been submitted.

Fleming cites Ocean Services Corp. v. Ventura Port Dist. (1993) 15

Cal.App.4th 1762, as supporting his estoppel argument. In that case, agents of the

defendant, a governmental entity, gave the plaintiff oral and written assurances that it did

not have to take further action to perfect a claim and the time to file one would be

extended. (Id. at p. 1776.) The Court of Appeal, rejecting the defendant’s argument that

the plaintiff had failed to comply with the claim presentation requirement, concluded,

“[t]he claims statute may not be invoked to penalize a plaintiff who at the behest of a

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public entity has been induced not to take action.” (Ibid.) In this case, Fleming presented

no evidence CUSD did or said anything to induce him not to present a timely claim.

DISCUSSION: APPEAL FROM THE ORDER AWARDING

ATTORNEY FEES

I.

Standard of Review

In case No. G048771, Fleming challenges the trial court’s postjudgment

order awarding CUSD $123,233 in contract-based attorney fees. “‘On review of an

award of attorney fees after trial, the normal standard of review is abuse of discretion.

However, de novo review of such a trial court order is warranted where the determination

of whether the criteria for an award of attorney fees and costs in this context have been

satisfied amounts to statutory construction and a question of law.’” (Connerly v. State

Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) The determination of the amount of fees

awarded is reviewed for abuse of discretion. (Apex LLC v. Korusfood.com (2013) 222

Cal.App.4th 1010, 1017.)

The normal rules of appellate review apply to an order granting or denying

attorney fees; i.e., the order is presumed correct, all intendments and presumptions are

indulged to support the order, conflicts in the evidence are resolved in favor of the

prevailing party, and the trial court’s resolution of factual disputes is conclusive.

(Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.) The

reviewing court will infer all findings necessary to support the order. (Apex LLC v.

Korusfood.com, supra, 222 Cal.App.4th at p. 1017.) The trial court’s express or implied

findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed

de novo, and its application of the law to the facts is reversible only if arbitrary and

capricious. (Ibid.; Ellis v. Toshiba America Information Systems, Inc. (2013) 218

Cal.App.4th 853, 882.)

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II.

The Trial Court Did Not Err in Granting

CUSD’s Motion for Attorney Fees.

In the order granting CUSD’s motion for attorney fees, the trial court found

CUSD was the prevailing party in an action on a written contract, i.e., Amendment

No. 11. The attorney fees provision of Amendment No. 11 states: “In the event of any

dispute between [Fleming] and the District with respect to this contract or any benefits

provided by this contract, the Board will pay legal fees and related costs incurred by

[Fleming] to enforce rights under this contract, unless [Fleming] is convicted of criminal

4

act[s] related to job performance.”

Fleming argues the trial court erred by granting CUSD’s motion for

attorney fees because, for two reasons, the fees provision in Amendment No. 11 was

inapplicable to his claims. First, he makes a reciprocity argument; that is, if he had

sought to recover severance pay while criminal charges against him were pending, he

would not have been entitled to recover attorney fees from CUSD under the terms of

Amendment No. 11. Based on principles of reciprocity, he argues CUSD should not be

able to recover its attorney fees from him. But, as CUSD points out, Amendment No. 11

bars Fleming from recovering attorney fees only if he is “convicted of criminal act[s]

related to job performance.” (Italics added.) Fleming was never convicted of criminal

acts, and, therefore, he would not have been prevented from recovering attorney fees if he

had sued for severance pay under Amendment No. 11, and prevailed, while the criminal

charges were pending against him.

Second, Fleming argues CUSD was not entitled to recover attorney fees

because he sought recovery for severance pay under the resignation agreement, not

4

Although the attorney fees provision is unilateral (it expressly permits only Fleming to

recover attorney fees), the trial court correctly concluded it must be interpreted as

granting reciprocal rights. (Civ. Code, § 1717, subd. (a); Santisas v. Goodin (1998) 17

Cal.4th 599, 611.) Fleming does not contend otherwise.

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Amendment No. 11. He argues: “Thus, the rights [Fleming] seeks to enforce are not

rights ‘arising under this contract,’ rather they are rights arising under a separate

collateral agreement. Therefore, the fees provision [in Amendment No. 11] is

inapplicable.”

The trial court made findings related to that contention. The trial court

rejected Fleming’s argument that severance pay had not been sought under Amendment

No. 11, and found: “[Fleming] asks the Court to apportion fees incurred in defending

against the portion of his claim that was based on the written Superintendent Contract,

versus those incurred in defending against the claim of an oral/mutual agreement.

[Fleming] does not attempt to identify the specific fees or hours to discount. . . . [¶]

Even to the extent [Fleming] may have asserted oral promises, he still sought to ground

them in the written contract. The promises were said to be based specifically in

Amendment No. 11, and its language on payment of [Fleming]’s legal fees and 18

months’ severance. . . . [Fleming] did not plead them as independent causes of action. He

plead[ed] a right to these benefits in a single cause of action for breach of contract within

the [first amended complaint], upon which [CUSD] prevailed. Thus, the suggestion to

parse out the claim is not well-taken.”

Substantial evidence supported those findings. In the amended complaint,

Fleming pleaded a single cause of action for breach of written contract, based on the

superintendent agreement and amendments, including Amendment No. 11. The amended

complaint did not seek recovery of severance pay or criminal defense fees based on the

resignation agreement. Fleming asserted his right to 18 months of salary as severance

pay was grounded in Amendment No. 11, which was attached to the amended complaint

as an exhibit. The amended complaint quoted the attorney fees provision of Amendment

No. 11 as the basis for recovery of fees. Fleming never sought leave to amend to allege

breach of the resignation agreement or any other agreement.

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The trial court also assumed that Fleming had pleaded separate,

independent claims for breach of written contract and breach of oral contract. The trial

court concluded apportionment of attorney fees between causes of action would not be

necessary because “any claim of an oral agreement was intertwined and overlapping with

the written contract.”

When a cause of action for which attorney fees may be recovered is

combined with other causes of action for which attorney fees may not be recovered, the

prevailing party may recover attorney fees only on the causes of action for which fees are

recoverable. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.) However,

“‘[a]ttorney’s fees need not be apportioned when incurred for representation on an issue

common to both a cause of action in which fees are proper and one in which they are not

allowed.’ [Citation.] ‘Attorneys fees need not be apportioned between distinct causes of

action where plaintiff’s various claims involve a common core of facts or are based on

related legal theories.’ [Citation.] Apportionment is not required when the issues in the

fee and nonfee claims are so inextricably intertwined that it would be impractical or

impossible to separate the attorney’s time into compensable and noncompensable units.”

(Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 158-159; see

Reynolds Metals Co. v. Alperson, supra, at pp. 129-130; Akins v. Enterprise Rent-A-Car

Co. (2000) 79 Cal.App.4th 1127, 1133 [attorney fees awarded the prevailing party need

not be apportioned between causes of action “[w]hen the liability issues are so

interrelated that it would have been impossible to separate them into claims for which

attorney fees are properly awarded and claims for which they are not”].)

“Where fees are authorized for some causes of action in a complaint but not

for others, allocation is a matter within the trial court’s discretion.” (Amtower v. Photon

Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604.) In this case, the trial court did not

abuse its discretion by deciding not to apportion attorney fees. The record demonstrates

the issues related to Amendment No. 11 and the issues related to the resignation

27

agreement were “so inextricably intertwined that it would be impractical or impossible to

separate the attorney’s time into compensable and noncompensable units.” (Graciano v.

Robinson Ford Sales, Inc., supra, 144 Cal.App.4th at p. 159.) Fleming did not attempt an

apportionment in opposing CSUD’s motion for attorney fees.

DISPOSITION

The judgment and the order granting CSUD’s motion for attorney fees are

affirmed. Respondent shall recover costs incurred on appeal.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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