Kent v. Lake Don Pedro Com. Services Dist. CA5

Filed 5/14/15 Kent v. Lake Don Pedro Com. Services Dist. CA5

NOT TO BE PUBLISHED IN THE OFFICAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

ROBERT D. KENT et al., Consolidated Case Nos.

F068354 & F069197

Plaintiffs and Appellants,

(Super. Ct. No. 9395)

v.

LAKE DON PEDRO COMMUNITY OPINION

SERVICES DISTRICT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R.

Parrish, Judge.

Law Offices of Linda L. Daube, Linda L. Daube and Jeanette L. Lebell for

Plaintiffs and Appellants.

Griswold, LaSalle, Dowd, Cobb & Gin, Raymond L. Carlson and Mario U.

Zamora for Defendant and Respondent.

-ooOoo-

This case arises from the termination by defendant Lake Don Pedro Community

Services District (the district) of the employment of plaintiff Robert D. Kent, its general

manager, and plaintiff Kimberly R. Topie, its treasurer (collectively, plaintiffs or the

plaintiffs). This is the third appeal in the litigation between the parties and, for the third

time, we find prejudicial error by the trial court. In this round, the trial court dismissed

the lawsuit on grounds of laches and subsequently awarded attorneys’ fees to the district

in an amount exceeding $175,000.

The laches ruling was erroneous. The court based its disposition on a finding that

plaintiffs did nothing to bring the case to trial during a period of 32 months following the

filing of the district’s answer. There is no substantial evidence in the record to support

this finding. The record does reflect other periods of delay that arguably were

unreasonable, however, and the trial court may consider these on remand.

The attorneys’ fees award also was erroneous. To award attorneys’ fees in this

case, it was necessary for the court to find that the lawsuit was “clearly frivolous and

totally lacking in merit.” (Gov. Code, § 54960.5.) The court’s finding that this standard

was satisfied was based primarily on its remarkable notion that plaintiffs admitted their

lawsuit was clearly frivolous and totally lacking in merit when they signed the district’s

proposed ruling dismissing the case based on laches, indicating their approval of the

order as to form. The ruling, being based on the procedural doctrine of laches, contained

no consideration of the merits; and in any event, a plaintiff’s approval of an adverse

proposed ruling as to form obviously is not an admission that his or her case is meritless

and frivolous. Were it otherwise, no attorney would ever approve an adverse ruling as to

form. The court stated two other reasons for finding that plaintiffs admitted their case

was clearly frivolous and totally lacking in merit, but these were similarly unsupported by

the record.

The court’s error was compounded by the fact that the district supplied no billing

records and no task breakdown of the $175,000 attorneys’ fees bill. The amount was

supported only by a declaration stating the total hours for each attorney over the entire

2.

life of the case, along with each attorney’s billing rate. Upon this record, it would be

impossible for the court to find that the amount was reasonable.

On appeal, the district does not attempt to defend the trial court’s reasoning on the

attorneys’ fee award. Instead, it tries to show that the evidence uncovered in the course

of discovery, which was never considered by the trial court, would support a finding that

the suit was clearly frivolous and totally lacking in merit. This attempt fails. The district

also says it did not need to break down a bill of $175,000 covering many years. The

attorneys’ fee award will be reversed.

FACTS AND PROCEDURAL HISTORY

Our two previous opinions in this litigation were filed in 2010. (Kent v. Lake Don

Pedro Community Services Dist. (Apr. 30, 2010, F058131) [nonpub. opn.] (Kent I); Kent

v. Lake Don Pedro Community Services Dist. (Dec. 30, 2010, F058926) [nonpub. opn.]

(Kent II).) This account of the facts and procedural history is drawn in part from those

opinions.

The case began as two separate lawsuits relating to the same set of facts. Kent I

began with a petition for a writ of mandate filed by plaintiffs on October 9, 2008. (Kent

I, supra, F058131, at p. 2.) As later amended, the petition alleged that Kent and Topie

had each been employed by the district for about 15 years, Kent most recently as general

manager and Topie most recently as treasurer. On June 30, 2008, according to the

petition, at the end of a closed-session meeting of the district’s board, Kent was given a

“Letter of Censure” signed by each board member and detailing several reasons why the

board was dissatisfied with him. (Id. at pp. 3-4.) On July 21, 2008, the board held two

separate closed sessions, of which Kent and Topie did not receive notice, during which

the board allegedly discussed criticisms of Kent and Topie and decided to fire them. On

July 29, 2008, the board held an open session on one day’s notice at which it voted to fire

Kent and Topie with no discussion. (Id. at p. 3.) Later, Kent and Topie applied to the

Employment Development Department (EDD) for unemployment benefits. The district

3.

filed opposition to plaintiffs’ applications for benefits, alleging various forms of

misconduct. (Id. at p. 4.)

Plaintiffs’ petition in Kent I alleged that the district’s behavior violated the Ralph

M. Brown Act (Gov. Code, § 54950 et seq.).1 The petition said the board must have

heard complaints or charges against plaintiffs in the closed sessions without giving them

24 hours’ notice and advising them of their right to have the complaints or charges heard

in open session, in violation of section 54957.2 The petition also stated that board

members must have had communications outside of authorized meetings—that is, in

illegal serial meetings consisting of piecemeal conversations among board members—to

develop an agreement to terminate plaintiffs, in violation of section 54952.2.3 (Kent I,

supra, F058131, at pp. 4-5.)

1Subsequent statutory references are to the Government Code unless otherwise

stated.

2Former section 54957, subdivision (b), reads as follows:

“(1) Subject to paragraph (2), nothing contained in this chapter shall be construed

to prevent the legislative body of a local agency from holding closed sessions during a

regular or special meeting to consider the appointment, employment, evaluation of

performance, discipline or dismissal of a public employee or to hear complaints or

charges brought against the employee by another person or employee unless the

employee requests a public session.

“(2) As a condition to holding a closed session on specific complaints or charges

brought against an employee by another person or employee, the employee shall be given

written notice of his or her right to have the complaints or charges heard in an open

session rather than a closed session, which notice shall be delivered to the employee

personally or by mail at least 24 hours before the time for holding the session. If notice is

not given, any disciplinary or other action taken by the legislative body against the

employee based on the specific complaints or charges in the closed session shall be null

and void.”

Legislation amending section 54957 in 2013 made nonsubstantive changes to

subdivision (b)(1). (Stats. 2013, ch. 11, § 1.) The preamendment language is quoted

here.

3Section 54952.2, subdivision (b)(1), reads:

4.

The district filed a demurrer to the amended petition. The trial court sustained the

demurrer without leave to amend and dismissed the petition with prejudice. In its order,

the court stated that the district was entitled to terminate plaintiffs in an open session and

that nothing that happened in the closed sessions could establish liability because

plaintiffs were not terminated during those meetings. It also found that the district’s

actions in the closed sessions must not have been a hearing of complaints or charges

within the meaning of the Brown Act, but instead were only employee evaluations, to

which the Brown Act’s notice and advisement requirements do not apply. It ruled that

the district’s accusations in the unemployment insurance proceedings were irrelevant to

the Brown Act claims. (Kent I, supra, F058131, at pp. 5-6.)

In Kent II, on January 15, 2009, Kent and Topie filed a complaint for damages

based on the same facts as in Kent I. (Kent II, supra, F058926, at p. 2.) The complaint

alleged wrongful termination, defamation, and a violation of due process rights under the

federal Constitution, asserted via 42 United States Code section 1983. (Kent II, supra, at

pp. 4-5.)

The district demurred. The trial court sustained the demurrer without leave to

amend on August 26, 2009, and dismissed the complaint with prejudice on September 11,

2009. (Kent II, supra, F058926, at pp. 6-7.) It ruled that plaintiffs’ wrongful-termination

cause of action was nonstatutory and that, as a result, the district had immunity from it

under the Government Claims Act (§ 810 et seq.). On the defamation claim, the court

ruled that the complaint failed to recite the allegedly defamatory statements. On the due

process claim, the court ruled that there was no cause of action because there are no due

“A majority of the members of a legislative body shall not, outside a meeting

authorized by this chapter, use a series of communications of any kind, directly or

through intermediaries, to discuss, deliberate, or take action on any item of business that

is within the subject matter jurisdiction of the legislative body.”

5.

process requirements for termination of at-will employees. (Kent II, supra, F058926, at

pp. 6-7.)

In the appeal in Kent I, this court ruled that the demurrer should have been

overruled. (Kent I, supra, F058131, at p. 2.) Plaintiffs’ amended petition adequately

pleaded that the district either violated section 54957 by hearing complaints or charges

against Kent and Topie in a closed session without providing the required notice and

advisement, or violated section 54952.2 by discussing plaintiffs’ terminations through an

improper series of communications outside an authorized meeting. (Kent I, supra, at

pp. 7-9.) Our holding applied only with respect to the judgment in favor of the district.

We affirmed the trial court with respect to its judgment dismissing the petition with

respect to the individual board member defendants, which was not challenged on appeal.

(Id. at pp. 2, 14.)

In the appeal in Kent II, we held that the trial court erred by denying Kent and

Topie leave to amend their complaint. It was reasonably possible that plaintiffs could

cure defects in their complaint by: (1) alleging their wrongful-discharge cause of action

in purely statutory terms, as a violation of Labor Code section 1102.5; (2) adding the

words of the district’s libelous statements or the substance of its slanderous statements to

the defamation cause of action; and (3) alleging that their due process rights were

infringed because they were stigmatized by a statement of false reasons for termination,

which was made without notice and a hearing. (Kent II, supra, F058926, at pp. 10-11,

13-15.) We affirmed the judgment of dismissal as to other causes of action and as to an

individual defendant. (Id. at p. 16.)

On remand, Kent I and Kent II were consolidated in the trial court for discovery

purposes only. The consolidation order was issued on April 30, 2011. In Kent II, the

damages action, Topie entered into a settlement agreement with the district for $75,000

on April 9, 2013. Plaintiffs’ opening brief in this appeal states that Kent also settled Kent

II two months later (though we find no documentation of this in the appellate record).

6.

The settlements left only the Brown Act claims alleged in the petition in Kent I, for which

the remedies sought were a declaration pursuant to section 54957, subdivision (b), that

the termination decisions were null and void, as well as reinstatement with back pay.

The trial court conducted a hearing on May 20, 2013, to decide the mandate

petition in Kent I. In their briefs for the hearing, the parties focused on the question of

whether the evidence supported an inference that, at the closed sessions in which the

performance of Kent and Topie was discussed, the board heard “specific complaints or

charges brought against an employee by another person or employee” within the meaning

of section 54957, subdivision (b)(2). It was undisputed that Kent and Topie were

terminated without discussion at an open meeting, and that this open meeting followed a

number of closed sessions in which the performance of Kent and Topie was discussed. It

also was undisputed that, at the end of one of the closed sessions, Kent was presented

with a previously prepared letter, signed by all the board members and detailing several

specific grounds on which Kent was being censured. Plaintiffs presented evidence that,

at the end of the open meeting in which they were terminated, an audience member asked

a question about the terminations. Boardmember Punte responded by saying, “we’re

working through counsel .… [W]e’ve been working for a while, so we’re solid.”

Further, after the terminations, Boardmember Gile said to Punte, “there are some tasks

that need to be completed with this action [i.e., the terminations]. Are we going to do

those tasks … have they been assigned?” Punte replied, “Yes, and I’d appreciate it if all

the board would stick around because we’ll all have something to do.” Plaintiffs

contended that these comments clearly implied that prior discussions among the board

members had taken place regarding the grounds for plaintiffs’ terminations, discussions

that must have happened either in illegal serial meetings or during the closed sessions,

which, in that case, were improperly noticed.

Plaintiffs also pointed to the deposition testimony of Boardmember Duste, who

stated that district employees had told her of misconduct by Kent and Topie, including

7.

misuse of district credit cards and timekeeping irregularities. Duste ordered Kent to

gather records relevant to these allegations. Duste and Punte examined the records and

found evidence of misconduct. Allegations of misconduct, including the one about

timekeeping, were also the stated basis of the district’s opposition—submitted via

counsel—to Kent’s and Topie’s unemployment claims.

Plaintiffs contended that these facts, though circumstantial, were sufficient to

support a finding that the district did as the petition alleged: Someone made allegations

against Kent and Topie, and the board heard these allegations either in closed sessions

that did not comply with section 54957, subdivision (b), or through a series of piecemeal,

unauthorized meetings in violation of section 54952.2, subdivision (b)(1).

In its opposition brief, the district argued that no violations could reasonably be

found because there was no direct evidence of what the board heard in closed sessions

and no direct evidence of serial meetings. In their depositions, Kent and Topie conceded

they had no personal knowledge of serial meetings, the discussions that took place during

the closed sessions, or any complaints made against them by other district employees.

The district further argued that, to the extent the record showed the district terminated

Kent and Topie because of misconduct, it revealed only that their performance was

evaluated in closed sessions. Section 54957, subdivision (b), distinguishes between

evaluating performance and hearing complaints or charges, and requires notice to

employees and advisement of their right to an open session only if complaints or charges

are heard. The evidence therefore did not show, the district contended, that the notice-

and-advisement requirements were triggered. It also did not show that any serial

meetings took place.

The district’s brief also raised the issue of laches. First, the district asserted that

any back-pay award should be offset, based on laches, because of delays following the

filing of the district’s answer on September 17, 2010. The district maintained that

plaintiffs did not conduct any depositions between that time and November 2012 and

8.

“made no effort to bring this matter to trial” in the 31 months between the filing of the

answer and the filing of the opposition brief. The district concluded that the action could

even be dismissed entirely based on laches. Finally, the district argued that plaintiffs had

an adequate remedy at law, which they were pursuing in Kent II, their damages action,

and that the mandate case was barred by their election of a damages remedy in Kent II.

At the end of the hearing, the court took the matter under submission. On July 31,

2013, it issued a written ruling denying the petition on the ground that it was barred by

the doctrine of laches. It stated:

“In this case, even if the court were to find that [plaintiffs] promptly filed

their petition, the court is persuaded that they have not prosecuted it with

reasonable diligence. The District terminated [plaintiffs] on July 29, 2008.

They filed their original petition for writ of mandate in October 2008.

Nearly eight months later, the trial court entered its order sustaining

Respondents’ demurrer without leave to amend and dismissing the petition.

In April 2010, the Court of Appeal reversed the trial court’s order, and in

August 2010, the Court issued its remittitur remanding the case to the trial

court. Approximately one month later, in September 2010, the District

filed its answer. From September 2010 until May 2013, a period of

approximately 32 months, [plaintiffs] made no effort to bring this matter to

trial. Since filing, without including the time this case was up on appeal, it

has taken [plaintiffs] over 40 months to bring this matter to hearing on the

merits. This represents and unreasonable period of delay.…

“Prejudice to the District from the delay is manifest. [Plaintiffs] seek back

pay and benefits from the period from their termination on July 29, 2008, to

the present. By delaying resolution of this case, [plaintiffs] materially

increased their claims for back salary and benefits. In addition, Kent’s

reinstatement would require the District either to discharge the current

General Manager or to pay two employees for a single job.”

Having decided the case on the basis of laches, the court stated that it was

unnecessary to address the district’s arguments that plaintiffs had adequate remedies at

law and that plaintiffs’ claims were barred by their election of a damages remedy in the

other lawsuit. The court did not analyze the merits of the Brown Act claims. Judgment

for the district was entered on August 30, 2013.

9.

The district filed a motion for attorneys’ fees pursuant to section 54960.5 on

October 18, 2013. That section provides that a trial court may award attorneys’ fees to

any prevailing plaintiff in a Brown Act case, but may award them to a prevailing

defendant only under limited circumstances:

“A court may award court costs and reasonable attorney fees to a defendant

in any action brought pursuant to section 54960 or 54960.1 where the

defendant has prevailed in a final determination of such action and the court

finds that the action was clearly frivolous and totally lacking in merit.”

The motion was not supported by counsel’s billing records or any other form of

documentation of the details of the services rendered by counsel. Instead, counsel

submitted a declaration attesting to the total amount of fees generated over the entire five-

year pendency of the litigation. The only supporting material was a half-page document

listing each timekeeper who worked on the matter at the law firm, the hourly rates (which

varied over the years) for each timekeeper, and the total billed by each timekeeper at each

rate.

The trial court made the required finding that the action was clearly frivolous and

totally lacking in merit, but it did not base this finding on any consideration of the merits

of the case. Instead, it maintained that plaintiffs admitted their action was clearly

frivolous and totally lacking in merit when their counsel signed the judgment dismissing

the action under the words “APPROVED AS TO FORM.” The court stated:

“The court finds that [the district] was the prevailing party by reason that

this action against it was dismissed with prejudice by the judgment entered

in this case; that such judgment of dismissal with prejudice was approved

by counsel for [plaintiffs]; that such agreement to judgment of dismissal

with prejudice is an admission that the case was clearly frivolous and

totally lacking in merit for purposes of Government Code § 54960.5; that

[plaintiffs] abandoned their claims against individually named respondents

on appeal of their dismissal in 2009 with prejudice after demurrer; that the

[C]ourt of [A]ppeal held such claims waived and affirmed the dismissal

with prejudice as to claims against the individually named respondents; that

such failure, abandonment and waiver by [plaintiffs] of such claims

constitutes admission that such claims were clearly frivolous and totally

10.

lacking in merit for purposes of Government Code § 54960.5; that

petitioners’ utter failure to diligently prosecute their claims against

respondent district constitutes an admission that the claim against

respondent district was clearly frivolous and totally lacking in merit for

purposes of Government Code § 54960.5.”

The district’s brief in support of the motion did not include the contention that

plaintiffs admitted their case was clearly frivolous and totally lacking in merit by means

of their counsel’s approval of the judgment as to form. The district argued only that

(a) plaintiffs’ claims against the individual board member defendants must have been

clearly frivolous and totally lacking in merit because plaintiffs did not appeal from the

dismissal of the petition as to those defendants; and (b) plaintiffs’ claims against the

district must have been clearly frivolous and totally lacking in merit because plaintiffs did

not prosecute their claims diligently.

The court’s order, which was drafted by counsel, ordered payment of the full

amount of fees requested, $175,051.35, by check made payable to counsel.

DISCUSSION

I. Laches

Plaintiffs challenge the trial court’s ruling that the action is barred by laches.

Laches is a doctrine according to which a court can, under some circumstances, refuse

relief if delay on the part of the complaining party would render the granting of relief

inequitable. (Newport v. Hatton (1924) 195 Cal. 132.) Laches requires unreasonable

delay by the plaintiff plus either acquiescence by the plaintiff in the act complained of or

prejudice to the defendant. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68

(Johnson); Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359

(Conti).) The delay can be either before or after the filing of the complaint or petition.

(Johnson, supra, at p. 68.) Prejudice must be shown, not presumed. (Conti, supra, at

11.

pp. 359-362.) To support the policy of resolving controversies on their merits, the burden

of proving laches is placed on the defendant. (Id. at p. 361.)4

“‘Laches is a question of fact, on the evidence, and each case becomes largely a

law unto itself. In other words, the matter is one which reposes in the sound discretion of

the’” trial court. (Brown v. Oxtoby (1941) 45 Cal.App.2d 702, 707.) Consequently, a

trial court’s ruling on laches will be sustained on appeal if supported by substantial

evidence, in the absence of manifest injustice. (Johnson, supra, 24 Cal.4th at p. 67;

Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) Cases are rare in

which the appellate court found the trial court erred in concluding there was laches.

(Vernon, supra, 178 Cal.App.3d at p. 725.)

The record discloses the following facts pertaining to the parties’ pretrial

activities. Plaintiffs were terminated by the district on July 29, 2008. On August 11 and

20, 2008, the district submitted documents to the Employment Development Department

opposing plaintiffs’ unemployment claims. The petition in Kent I was filed on October 9,

2008. Plaintiffs sent a settlement demand to the district on November 11, 2008, and

received no reply. The complaint in Kent II was filed on January 15, 2009. The trial

court sustained demurrers without leave to amend and dismissed both actions. (Kent I,

supra, F058131, at p. 6; Kent II, supra, F058926, at p. 6.) We reversed both dismissals in

part, in opinions filed on April 30, 2010 and December 31, 2010. (Kent I, supra, at pp. 1,

14; Kent II, supra, at pp. 1, 16.)

4One case, Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d

710, 719 (Vernon), states that, “[i]f there is delay in prosecuting the mandamus action,

the burden of showing that such delay is reasonable or excusable is on the petitioner.”

The Court of Appeal in that case cited Conti, supra, 1 Cal.3d at page 357, for this

proposition. Conti, however, does not contain the proposition. It simply states that

courts have held that laches is an affirmative defense, and the burden of proving it is on

the defendant. (Id. at p. 361.) In any case, our holding does not depend on an allocation

of the burden of proof. We express no opinion on the question of whether a defendant

can make a showing that shifts a burden onto a plaintiff.

12.

On March 8, 2011, plaintiffs filed an amended complaint in Kent II. The district

filed a demurrer and a motion to strike on April 8, 2011. On August 19, 2011, the trial

court overruled the demurrer in part, sustained the demurrer in part with leave to amend,

granted the motion to strike in part, and denied the motion to strike in part.

Plaintiffs moved to consolidate the two actions for all purposes. The trial court

granted consolidation only for discovery purposes on April 30, 2011. The district filed an

answer to the mandate petition on September 17, 2010.5

The district served deposition notices and requests for production of documents on

October 26, 2011. Plaintiffs produced the documents and were deposed on December 5

and 12, 2011.

Plaintiffs served requests for production of documents on January 23, 2012.

Respondents served responses on March 2, 2012.

In 2012, the parties filed a series of papers expressing disagreement about when

the cases would be ready for trial. Plaintiffs filed a form called an At-Issue

Memorandum for both cases on January 25, 2012. They marked spaces for “yes” where

the form asked, “TRIAL SETTING REQUIRED?” and “PRETRIAL REQUESTED?”

The district filed a counter memorandum on February 3, 2012, stating that trial setting

was not required, pretrial was not requested, and “[t]he case is not at issue and should not

be set for trial” because the two actions had not been consolidated for trial and the estate

of a deceased board member (who had been a party to the damages action) had not been

joined. On February 6, 2012, the district apparently changed its position, filing another

counter memorandum in which it stated that trial setting was required and pretrial was

requested in the mandate case but not the damages action. On February 7, 2012,

plaintiffs responded with a letter to the court requesting a case management conference

5Theparties have not cited any place in the appellate record indicating when the

answer was filed in the damages action.

13.

for both cases. Plaintiffs filed another at issue memorandum for the mandate case on

March 12, 2012, again stating that trial setting was required. On March 19, 2012,

plaintiffs filed a pretrial conference statement for the mandate case in which they asserted

that the case would be ready for trial within six months. The district filed its pretrial

conference statement on March 21, 2012, in which it denied that that proceeding was

really a pretrial conference. The district returned to its prior position that “trial setting at

this time is not appropriate.” The district stated that discovery was incomplete, and

summary judgment motions were anticipated. In the district’s view, the case would be

ready for trial by January 14, 2013.

A pretrial conference took place on March 26, 2012. The court set another hearing

for June 25, 2012, with the parties to hold a further settlement conference in the interim.

Plaintiffs filed a case management statement for both matters on June 18, 2012. Plaintiffs

indicated that the parties had agreed to participate in mediation and that they intended to

complete their discovery by August 2012. The district also filed a case management

statement on June 18, 2012. It requested a further status conference in 120 days to allow

for discovery and mediation.

The court continued the June 25 case management hearing to August 27, 2012.

For that hearing, the district filed a case management statement on August 14, 2012,

requesting a further status conference in 120 days to allow for “additional discovery and

mediation.” On August 16, 2012, the parties participated in a mediation session. On

August 20, 2012, plaintiffs served a case management statement in which they stated that

all their anticipated discovery would be completed by November 15, 2012, and they were

requesting trial no later than March 1, 2013. At the case management hearing, the court

set a briefing schedule, with briefs due in December 2012 and January 2013, but did not

set a trial date. Further depositions of plaintiffs were conducted in July and November

2012.

14.

Plaintiffs served deposition notices with document production requests on

September 27, 2012. District board members were deposed on November 7, 8 and 9,

2012. A discovery dispute arose around this time. The district objected to some of

plaintiffs’ document requests, relying on attorney-client privilege among other things, but

did not produce a privilege log. Plaintiffs also encountered difficulty in obtaining

documents that an attorney for the district in the damages action had subpoenaed from the

law firm representing the district in the mandate case. Plaintiffs’ counsel informed the

district that, until the discovery dispute was resolved, plaintiffs would not file an opening

brief for the trial in the mandate action in accordance with the briefing schedule set at the

last case management hearing.

In their next case management statement, filed on November 16, 2012, plaintiffs

stated that discovery would be complete by January 15, 2013, and requested trial by

April 1, 2013. They referred to the discovery dispute and stated that they anticipated a

need to file motions to compel discovery.

On December 15, 2012, plaintiffs did not file an opening brief as required by the

order issued after the August 27, 2012, case management hearing. For this reason, the

district filed a motion to dismiss on January 28, 2013. The trial court subsequently

allowed the motion to dismiss to be withdrawn, but ordered plaintiffs to pay the district a

sanction of $1,800 for attorneys’ fees and ordered plaintiffs to file an opening brief by

March 15, 2013.

After this, the damages action settled and the mandate case proceeded to hearing,

as we have already described.

The parties now dispute whether the record supports the finding of unreasonable

delay by plaintiffs in the prosecution of the action. They also dispute whether the record

supports the finding of prejudice. We begin with unreasonable delay.

The trial court found that plaintiffs caused unreasonable delay because they “made

no effort to bring this matter to trial” for a period of 32 months from September 2010

15.

(when the district filed its answer following the appellate reversal in Kent I) to May 2013

(when the hearing took place).6 There is no substantial evidence in support of the finding

that plaintiffs made no effort to bring the matter to trial between the filing of the answer

and the date of the hearing. During that time, plaintiffs conducted discovery, responded

to discovery requests, resolved discovery disputes, engaged in mediation, and made

multiple requests for trial dates. More than once, the district responded to plaintiffs’

requests for the setting of a trial date by advising the court that the matter was not ready

for trial setting.

Although the ground stated by the trial court for its determination is not supported

by the record, it does not necessarily follow that an unreasonable delay by plaintiffs

cannot be demonstrated from the record. Within the period between the filing of the

answer and the hearing, there were shorter delays that could possibly be shown to be

unreasonable. For instance, as the district points out, plaintiffs first served deposition

notices in September 2012, two years after the filing of the answer. The trial court may

determine on remand whether laches can be found on such alternative grounds as these.

The trial court can also consider, on remand, the other grounds the district advanced for

judgment in its favor, upon which the court did not rule previously.

Turning to prejudice, we conclude that the question will have to be reconsidered

on remand, if the trial court again rests its decision on laches. The court’s view was that

the district was prejudiced because, had the matter been resolved sooner, the claims for

back pay would have been less, and reinstatement of Kent would necessitate terminating

a replacement who had been hired, or paying two employees for the same job. Forms of

6The court also found that the hearing did not happen for 40 months from the time

of filing, excluding the time when the appeal was pending. To the extent that this is

another finding of unreasonable delay, it depends logically on the finding that plaintiffs

did nothing to bring the matter to trial for 32 of those 40 months. Consequently, we will

not analyze it separately.

16.

prejudice comparable to these have been recognized as sufficient in the context of laches

in multiple cases. (Johnson, supra, 24 Cal.4th at p. 69; Conti, supra, 1 Cal.3d at p. 360;

Vernon, supra, 178 Cal.App.3d at pp. 717, 726.) As we have said, however, the record

does not support the court’s finding that plaintiffs did nothing to bring the case to trial in

the period from the filing of the answer to the hearing. If the court finds laches based on

narrower grounds or a shorter delay, the nature and quantity of evidence of prejudice may

be different.

The district contends that, even if the record does not support a finding of laches,

the judgment should be affirmed because, in its order awarding attorneys’ fees, the trial

court found that the lawsuit was clearly frivolous and totally lacking in merit. As we will

explain, the attorneys’ fees award and the findings on which it was based were abuses of

the trial court’s discretion.

II. Attorneys’ fees

Plaintiffs contend that the award of attorneys’ fees to the district was erroneous. A

trial court has authority to award attorneys’ fees to a defendant in a Brown Act case only

if it “finds that the action was clearly frivolous and totally lacking in merit.” (§ 54960.5.)

This is a difficult standard to satisfy. In the similar context of an award of attorneys’ fees

to a prevailing defendant under the Public Records Act (§ 6250 et seq.), the Court of

Appeal recently described the “clearly frivolous” standard in the following way:

“[A]ny sanction for prosecuting a frivolous [case] ‘should be used most

sparingly to deter only the most egregious conduct.’ [Citation.]

Ultimately … ‘[a case] may be deemed frivolous only when prosecuted for

an improper motive—e.g., to harass the [defendant] or for purpose of

delay—or when lacking any merit—i.e., when any reasonable attorney

would agree the appeal is totally without merit.’ [Citation.]” (Bartoli v.

City of Sebastopol (2015) 233 Cal.App.4th 353, 368.)

An award of attorneys’ fees under the Brown Act is reviewed for abuse of

discretion (Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1120), but of

course an award to a prevailing defendant is within the court’s discretion only if its

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finding that the action was clearly frivolous and totally lacking in merit is supported by

the record and within the bounds of reason. As we will explain, the record does not

support a finding that the district’s fee motion satisfied the stringent applicable standard.

In defense of the trial court’s first reason for finding plaintiffs’ case clearly

frivolous and totally lacking in merit—that plaintiffs admitted as much when they

approved the judgment as to form—little can be said. With good reason, the district

never made this argument in the trial court and says nothing in defense of it now. No

competent attorney approves an adverse judgment or order as to form with the

understanding that, by doing so, he or she makes a judicial admission that his or her case

is clearly frivolous and totally lacking in merit. The trial court’s reliance on this ground

was well outside the bounds of reason.

The court’s other two grounds do not fare much better. First, the court stated that

plaintiffs conceded the clear frivolity and total meritlessness of their case by not

appealing from the dismissal of the individual defendants. No such concession was

implied by the lack of an appeal. In general, there are many reasons for not pursuing an

appeal that have nothing to do with the merits of a case. One such reason is revealed by

the record in this case. As we mentioned in our prior opinion, one ground advanced in

the trial court in support of the demurrer was that the Brown Act provided remedies that

ran against the governmental entity only, not the individual board members. Plaintiffs

argued in response that the demurrer should be sustained as to the individual defendants

only with leave to amend, since the petition could be amended to add causes of action not

based on the Brown Act. (Kent I, supra, F058131, at p. 14.) In fact, plaintiffs ended up

filing a separate action, Kent II, alleging non-Brown Act causes of action against the

individual defendants. Plaintiffs’ decision not to appeal from the dismissal of the

individual defendants from Kent I was not based on plaintiffs’ belief that their claims

against those defendants were frivolous or meritless.

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The trial court’s final reason for finding the case clearly frivolous and totally

lacking in merit was that plaintiffs admitted this was so by failing to prosecute the action

diligently. Again, the finding of an admission is not supported by substantial evidence

and is not within the bounds of reason. Assuming plaintiffs did lack diligence, we do not

see how this would amount to an admission that the case was clearly frivolous and totally

without merit. Many factors unrelated to the merits of a case can contribute to an

unreasonable and unexcused delay, including lack of funds and distraction of parties or

counsel by other matters.

In sum, the court’s order found that plaintiffs’ action was clearly frivolous and

totally without merit even though the court never analyzed the merits of the case.

Instead, it attributed adverse admissions to plaintiffs based on facts that simply did not

imply such admissions. This was an abuse of discretion.

In its appellate brief, the district asks us to affirm the attorneys’ fees award based

on an analysis of the merits of the case. It is essentially the same as the merits analysis

the district presented to the trial court, recharacterized as an argument that plaintiffs’

position is not just wrong but frivolous. As we will explain, this analysis depends on

conclusions that an attorney could reasonably dispute. It follows that the district’s

analysis cannot show that plaintiffs’ lawsuit was clearly frivolous and totally without

merit.

The district says plaintiffs admitted in their depositions that they had no personal

knowledge of what happened in closed sessions and no personal knowledge of any serial

meetings. It maintains that this lack of knowledge contradicts plaintiffs’ verified petition,

which states (under oath, since it is verified) that the district’s board either heard

complaints or charges in closed sessions or discussed plaintiffs’ terminations in serial

meetings. The district argues that, absent direct evidence of the hearing of complaints or

charges in the closed sessions or of serial meetings, the evidence shows only that

employee evaluations were conducted in the closed sessions. Employee evaluations, the

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district argues, are permitted in closed session by the Brown Act without notice to the

employee or advisement of the right to an open meeting. Because plaintiffs never had

any personal knowledge of the alleged violations and never obtained documents or

witness testimony directly proving them, their case never had any potential, at the outset

or by the time of the hearing, to show anything more than proper employee evaluations.

Therefore, the district argues, the case was clearly frivolous and totally lacking in merit.

As a preliminary point, plaintiffs’ lack of personal knowledge does not contradict

the verified petition. The allegations in the petition were made on information and belief.

It is evident that those allegations were based on inferences from the district’s actions,

inferences that the district must have heard complaints or charges in closed session, or

had discussions in serial meetings, since it made detailed accusations of misconduct and

must have developed these at some point. There is nothing improper about this, and it

does not show that the lawsuit was frivolous.

We turn next to the distinction between the hearing of complaints and charges (to

which the section 54957 requirements at issue apply) and the conducting of employee

evaluations and making of employment decisions (to which they do not). We discussed

this distinction in our prior opinion (Kent I, supra, F058131, at pp. 10-12) and discussed

it briefly above. Again, section 54957, subdivision (b)(1), makes a distinction between

“consider[ing] the appointment, employment, evaluation of performance, discipline or

dismissal of a public employee” and “hear[ing] complaints or charges brought against the

employee by another person or employee.” Then, as to the latter activity only,

section 54957, subdivision (b)(2), requires that, if it is to be carried out in closed session,

the employee must be notified and advised of his or her right to an open session instead.

The distinction between the two kinds of activities—evaluating performance

versus hearing complaints—is difficult to apply in practice. If the board of a public

agency undertakes to evaluate an employee’s performance, and in the course of doing so

it is told by “another person or employee” (§ 54957, subd. (b)(1))—i.e., anyone—of

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misconduct or other bad performance, has the board then heard “complaints or charges”

(§ 54957, subd. (b)(1) & (2))? If so, would negative performance evaluations not

typically also be hearings of complaints or charges?

This problem has led courts to tread cautiously in this area, as cases discussed in

Kent I indicate. (Kent I, supra, F058131, at pp. 10-12.) In Fischer v. Los Angeles

Unified School Dist. (1999) 70 Cal.App.4th 87, the Court of Appeal held that, although a

school board dismissed teachers after reading allegations of misconduct in closed session,

it did not conduct a hearing of complaints or charges because the allegations of

misconduct had first been presented to the employees in earlier proceedings not involving

the board. (Id. at pp. 96-100.) Similarly, in Kolter v. Commission on Professional

Competence of Los Angeles Unified School Dist. (2009) 170 Cal.App.4th 1346, charges

against a teacher were discussed in closed session, and the board decided to initiate

termination proceedings. Later, the charges were made public at an open meeting. The

Court of Appeal held that there was no hearing of the charges at the closed session

because those charges were heard at the subsequent open session. (Id. at p. 1352.) In

Moreno v. City of King (2005) 127 Cal.App.4th 17, the city council was given a

memorandum in closed session in which accusations of an employee’s misconduct were

contained; the council discussed the accusations, and several days later the employee was

fired by the city manager. There were no prior or subsequent proceedings in which the

accusations were heard. The Court of Appeal affirmed the trial court’s holding that the

council violated the Brown Act by hearing complaints or charges in closed session

without the required notice and advisement to the employee. It rejected that contention

that there was a performance evaluation but not a hearing of complaints or charges.

(Moreno, supra, at pp. 21-23, 28-29.)

With this legal background, plaintiffs’ counsel here could reasonably believe

plaintiffs had a viable case based on circumstantial evidence. The performance of Kent

and Topie was discussed in closed sessions; at the end of one of these, Kent was censured

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in writing. Kent and Topie were terminated without discussion at an open meeting, and,

at the end of that meeting, board members made remarks indicating that the board had

been working on the issue of the terminations for some time. Board members received

and investigated other employees’ claims of misconduct by Kent and Topie. The district

opposed Kent’s and Topie’s unemployment claims on grounds of misconduct. These

facts support the conclusion that there was a reasonable possibility a finder of fact would

infer under the preponderance standard that the board heard complaints or charges against

Kent and Topie in closed sessions, unless it instead developed the grounds for their

terminations in serial meetings.

In sum, on the record before us, a reasonable attorney could conclude that

plaintiffs had a colorable case of a Brown Act violation, and that there was enough

evidence for a reasonable finder of fact to find in plaintiffs’ favor. Under these

circumstances, to award attorneys’ fees under the “clearly frivolous and totally lacking in

merit” standard (§ 54960.5) would conflict with the fee provision’s goal of encouraging

private enforcement of the Brown Act. (Common Cause v. Stirling (1981) 119

Cal.App.3d 658, 663.)

Finally, although the point need not be made for purposes of our disposition, it is

worthwhile for the guidance of the court and parties to note that the documentation the

district submitted to the trial court was not adequate to establish the fees reasonably

incurred. To serve as the basis of a reasonable award of statutory attorneys’ fees, a

lodestar figure must be “based on the ‘careful compilation of the time spent and

reasonable hourly compensation of each attorney … involved in the presentation of the

case.’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.) To

determine what amount of fees is reasonable, “trial courts must carefully review attorney

documentation of hours expended; ‘padding’ in the form of inefficient or duplicative

efforts is not subject to compensation.” (Ibid.) The district did not submit any detailed

billing records. Instead, it presented lump sums for each attorney for the entire multi-

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year case, along with each attorney’s billing rate. We do not see how the trial court could

have determined whether or not the fees claimed were reasonable when the services

performed by each attorney were not even described, let alone broken down by date and

task.

In conclusion, it is specifically noted that our ruling is based solely upon, and

limited to, the record before us. As long as it remains consistent with this opinion, we do

not intend to limit the trial court as to any conclusions it may reach.

DISPOSITION

The judgment and the award of attorneys’ fees are reversed. The matter is

remanded to the trial court for further proceedings consistent with this opinion. On

remand, the trial court may reconsider the issue of laches on grounds other than those

rejected herein, as well as the remaining issues raised by the parties at the hearing on

May 20, 2013, but not addressed previously by the trial court. Costs on appeal are

awarded to plaintiffs.

_____________________

Smith, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Poochigian, J.

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