Olson v. Hornbrook Community Services District CA3

Filed 10/1/21 Olson v. Hornbrook Community Services District CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

KIMBERLY R. OLSON, C091885

Plaintiff and Appellant, (Super. Ct. No. SCCVPT17579)

v.

HORNBROOK COMMUNITY SERVICES

DISTRICT et al.,

Defendants and Respondents.

Plaintiff Kimberly R. Olson filed a complaint for declaratory relief and a petition

for writ of mandamus against the Hornbrook Community Services District (District) and

its employee Clint Dingman (collectively defendants) alleging a variety of claims

(complaint). Defendants demurred and plaintiff thereafter filed an amended complaint

without court permission alleging an additional cause of action, along with those

previously asserted in the complaint (amended complaint). The trial court disregarded

the amended complaint and sustained defendant’s demurrer on the complaint as to several

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causes of action. Ignoring the trial court’s ruling regarding the amended complaint,

plaintiff sought a default judgment against defendants on the amended complaint, which

the trial court denied.

On appeal, plaintiff challenges the trial court’s reasons for disregarding the

amended complaint, as well as its refusal to enter a default judgment against defendants

on the amended complaint. Plaintiff also challenges the trial court’s order sustaining

defendants’ demurrer to the complaint and its jurisdiction to enter judgment on the

complaint. We disagree with plaintiff’s contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff sued defendants alleging several violations of the Ralph M. Brown Act1

(Brown Act), as well as nuisance and waste of public funds. As to the Brown Act,

plaintiff alleged she “and other members of the public objected to the [District’s] consent

calendar on the basis that there was no description of each item of business to be

considered and approved by the Board.” As support, plaintiff attached the District’s

agenda showing that, during the consent calendar portion of the meeting, the Board

would approve minutes from the prior meeting, “approve bills and authorize signatures

on Warrant Authorization Form for District expenses received through March 28, 2017,”

and approve the filing of a report.

Plaintiff also alleged the District violated the Brown Act by providing an

inadequate description pertaining to the “requirement and appropriate procedure for

amendment of District bylaws.” It was inadequate, the allegation continued, because “the

description given did not include the information that the Board, and the District Manager

were actually seeking to change certain sections of the [District’s] Bylaws without voter

approval, when those sections provide that voter approval must be obtained to make any

1 Government Code section 54950 et seq.

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changes thereto.” Next, plaintiff alleged the District violated the Brown Act by holding a

closed session with legal counsel to discuss two litigation cases when the legal counsel in

question was never appointed or retained at a noticed public hearing. Finally, plaintiff

alleged one of the litigation cases considered during closed session improperly listed the

case number on the agenda.

As to the waste of public funds cause of action, plaintiff alleged Dingman and

board members of the District conspired so that Dingman could file timesheets that did

not accurately reflect the time he worked for the District.2

Defendants filed a demurrer arguing plaintiff did not state facts sufficient to

constitute a cause of action. Plaintiff thereafter filed the amended complaint alleging an

additional cause of action that Dingman violated the False Claims Act3 based on his

filing of false time cards.

The trial court “bounced back” plaintiff’s first amended complaint because the fee

waiver request accompanying the complaint was on an outdated form and the fax-filing

fee had not been paid. The court also noted that while plaintiff requested the complaint

be processed as a confidential False Claims Act proceeding, the court would not do so

because the proceeding was not “initiated” as a False Claim Act proceeding and instead

alleged “violation of the Brown Act, for mandamus, declaratory relief, nuisance and

Waste of Taxpayer funds.” Further, the court found the amended complaint failed to

state a claim under the False Claims Act because the False Claims Act could not be

utilized against government employees. (Citing State of California ex rel. Dockstader v.

2 Plaintiff does not mount arguments on appeal alleging the trial court erred in

sustaining the demurrer as to her nuisance cause of action, thus we will not relate the

facts underlying that allegation.

3 Government Code section 12560 et seq.

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Hamby (2008) 162 Cal.App.4th 480.) As to defendant’s demurrer, the court sustained it

without leave to amend in substantial part, leaving viable only plaintiff’s nuisance claim.

Plaintiff thereafter filed a proper fee waiver form, but the court continued to reject

the amended complaint for the reasons it had previously stated. Eventually, plaintiff filed

a request for entry of default judgment on the amended complaint because, in her view,

defendants had failed to answer. The court denied plaintiff’s request. Defendants then

filed a motion for entry of judgment after plaintiff failed to file and serve an amended

complaint within the parameters of the trial court’s order sustaining the demurrer on the

complaint. Plaintiff opposed the motion arguing she had filed an amended complaint and

the court had erred in sustaining the demurrer as to the complaint. During this process,

plaintiff again sought entry of a default judgment against defendants on the amended

complaint. The court again refused to enter default. The court ultimately granted

defendants’ motion for entry of judgment.

Plaintiff appeals, representing herself.

DISCUSSION

Plaintiff’s contentions can to be divided into two categories -- those pertaining to

dismissal of the complaint and those pertaining to the court’s refusal to enter a default

judgment against defendants on the amended complaint. Plaintiff addresses many facets

of these contentions in a haphazard and scattered fashion, compelling us to summarize

basic principles of appellate review.

“ ‘ “A judgment or order of the lower court is presumed correct. All intendments

and presumptions are indulged to support it on matters as to which the record is silent,

and error must be affirmatively shown. This is not only a general principle of appellate

practice but an ingredient of the constitutional doctrine of reversible error.” ’ ” (People v.

Leonard (2014) 228 Cal.App.4th 465, 478, quoting Denham v. Superior Court (1970) 2

Cal.3d 557, 564.) “It is the appellant’s burden to demonstrate the existence of reversible

error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.) “To demonstrate

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error, appellant must present meaningful legal analysis supported by citations to authority

and citations to facts in the record that support the claim of error. [Citations.] When a

point is asserted without argument and authority for the proposition, ‘it is deemed to be

without foundation and requires no discussion by the reviewing court.’ [Citations.]

Hence, conclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396,

408.) Additionally, an appellant has the burden of demonstrating both error and resulting

prejudice. (See, e.g., People v. Coley (1997) 52 Cal.App.4th 964, 972; see also Cal.

Const., art. VI, § 13 [“No judgment shall be set aside, or new trial granted, in any cause,

on the ground of misdirection of the jury, or of the improper admission or rejection of

evidence, or for any error as to any matter of pleading, or for any error as to any matter of

procedure, unless, after an examination of the entire cause, including the evidence, the

court shall be of the opinion that the error complained of has resulted in a miscarriage of

justice”].)

With these principles in mind, we address plaintiff’s appellate contentions starting

with those pertaining to the amended complaint.

I

Plaintiff Was Not Harmed By The Trial Court’s

Failure To Consider The Amended Complaint

In her first argument heading, plaintiff contends the trial court lacked jurisdiction

to strike the amended complaint because it revoked her long-approved fee waiver sua

sponte and required she pay a fax-filing fee. In the body of this argument, plaintiff

elaborates that the trial court lacked jurisdiction to strike or otherwise dismiss the

amended complaint without a motion from defendants or notice to her. She also takes

issue with the court’s remaining reason for disregarding the amended complaint -- that it

was improper for her to amend the complaint with an allegation Dingman violated the

False Claims Act without first alleging it in the complaint.

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We conclude plaintiff’s contention the trial court lacked jurisdiction to strike or

dismiss the amended complaint on its own motion is without merit. Plaintiff filed the

amended complaint after defendants had filed a demurrer. Given the timing of this filing,

plaintiff was required to seek leave of court to file the amended complaint. (Code Civ.

Proc., § 472, subd. (a).) Thus, the court had jurisdiction to disregard the amended

complaint or grant leave for plaintiff to file the amended complaint.4

Even so, plaintiff argues the reasons cited by the court for disregarding the

amended complaint were erroneous. Plaintiff, however, cannot demonstrate she was

prejudiced by the court’s failure to grant her leave to file the amended complaint.

(People v. Coley, supra, 52 Cal.App.4th at p. 972.) Indeed, the court disregarded the

amended complaint for plaintiff’s failure to file the proper fee waiver form, but it

permitted plaintiff an opportunity to remedy the problem. Plaintiff took advantage of that

opportunity and remedied the issue by filing the proper fee waiver form, and the amended

complaint was thereafter rejected for filing on other bases.

Plaintiff has failed to mount an appellate argument demonstrating the court erred

by requiring she file a fax-filing fee before granting leave to file the amended complaint.

Other than eluding to the issue in her first heading and then again in the context of the

trial court’s lack of statutory authority or jurisdiction, plaintiff’s brief does not contain a

4 Plaintiff’s contention the trial court dismissed the amended complaint without

notice to her misapprehends the procedural posture of the legal proceedings. The trial

court precluded plaintiff from filing an amended complaint and informed plaintiff of how

to remedy the deficiencies the court saw in the amended complaint. The court then gave

plaintiff ample opportunity to remedy the deficiencies in the proposed amended

complaint so that it stated causes of action and complied with the local rules as it

pertained to filing fees. Despite this notice, plaintiff did not attempt to remedy the

deficiencies the court identified in the amended complaint. Thus, plaintiff’s citation to

Reid v. Balter (1993) 14 Cal.App.4th 1186 is misplaced because unlike the plaintiff in

that case, plaintiff was provided with notice and an opportunity to remedy purported

deficiencies before the trial court dismissed plaintiff’s action.

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citation to authority or argument explaining why the court erred in requiring a fax-filing

fee before the amended complaint could be filed and considered by the court. Because

plaintiff has failed to mount an argument that the court erred on this basis, the argument

is forfeited, and plaintiff has failed to demonstrate reversible error. (In re S.C., supra,

138 Cal.App.4th at p. 408; see, e.g., People v. Coley, supra, 52 Cal.App.4th at p. 972.)

While that would be sufficient to affirm the court’s striking of plaintiff’s amended

complaint, we note the trial court was also correct that the amended complaint failed to

state a cause of action under the False Claims Act; albeit, for a different reason than that

relied upon by the court and defendants. We agree with plaintiff that Hamby is

distinguishable. (State of California ex rel. Dockstader v. Hamby, supra, 162

Cal.App.4th at p. 480.) In Hamby, employees of a public school district were sued for

submitting false claims to the State of California based solely on their status and conduct

as public school district employees. (Id. at pp. 483-484.) Extending our Supreme

Court’s holding that a “person” subject to liability under the False Claims Act did not

include a government agency (Wells v. One2One Learning Foundation (2006) 39 Cal.4th

1164), Division Three of the Fourth District Court of Appeal held that “person” also did

not include a government employee who acted within the scope of the employee’s

employment and the government agency had a duty to indemnify the employee (Hamby,

at pp. 486-488, 491). Here, however, plaintiff did not allege Dingman was working

within the scope of his employment when committing the conduct giving rise to the false

claim (i.e., submitting timesheets for time not worked) and plaintiff sued him in his

individual capacity, making plaintiff’s case different from Hamby.

Regardless, plaintiff’s claim lacks merit because the definition of “claim” as used

in the False Claims Act “does not include requests or demands for money, property, or

services that the state or a political subdivision has paid to an individual as compensation

for employment with the state or political subdivision or as an income subsidy with no

restrictions on that individual’s use of the money, property, or services.” (Gov. Code,

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§ 12650, subd. (b)(2).) Indeed, the False Claim Act, “like its federal counterpart . . . ,

was created to address the problem of companies or contractors who defraud state and

local governments of public funds by making false claims for payment or reimbursement

for their services.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1196 (2009-

2010 Reg. Sess.) as amended Apr. 15, 2009, italics added.) The False Claims Act was

not created to address the conduct of government employees, and it explicitly provides

that claims made by those employees “as compensation for employment” are not

included in the prohibited conduct governed by the False Claims Act. (Gov. Code, §

12650, subd. (b)(2).) Accordingly, plaintiff did not state a claim under the False Claims

Act. Because plaintiff cannot demonstrate the amended complaint contained a viable

claim for relief apart from those contained in the complaint, she has not demonstrated

prejudice resulting from the trial court’s failure to grant her leave to file the amended

complaint before ruling on defendants’ demurrer.

Plaintiff also contends the trial court was required to enter a default judgment

against defendants on the amended complaint because she filed it, and defendants failed

to answer it. Not so. Again, because the court never granted plaintiff leave to file the

amended complaint, the amended complaint was never filed. Thus, plaintiff could not

obtain a default judgment against defendants. Further, plaintiff cannot demonstrate

prejudice. As has been explained ante, and will be elaborated on post, plaintiff has not

demonstrated the trial court erred by finding she failed to state a claim for relief in her

pleadings. In whole, the trial court found plaintiff failed to state a claim for relief in the

complaint and that the additional cause of action alleged in the amended complaint also

failed to state a claim for relief. Because plaintiff cannot demonstrate error in those

rulings, she cannot demonstrate that there was a cause of action in the amended

complaint for which the court could enter judgment. (Grappo v. McMills (2017) 11

Cal.App.5th 996, 1015; Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 408-414 [the

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trial court may not enter a default judgment when the complaint’s allegations do not state

a cause of action].)

II

Plaintiff Has Not Demonstrated The Trial Court

Erred By Sustaining Defendant’s Demurrer

Plaintiff contends the trial court erred by sustaining defendants’ demurrer, and also

that the court lacked jurisdiction to dismiss the complaint. While she appears to assert

the complaint stated a claim as to each cause of action she alleged, plaintiff fails to

develop an appellate argument in that regard, except as to her cause of action under the

Brown Act. Thus, we will not address whether the trial court properly sustained

defendant’s demurrer as to plaintiff’s causes of action for nuisance and waste of public

funds. (In re S.C., supra, 138 Cal.App.4th at p. 408.)

As to the Brown Act cause of action, plaintiff alleged four theories in the

complaint alleging the District violated the Brown Act. First, plaintiff alleged the District

violated the Brown Act by failing to list every action to be taken by approval of the

consent agenda; second, by failing to notify the public of the reason for amending the

District’s bylaws; third, by holding a closed session with retained counsel, when the

contract to retain counsel was never approved at a noticed public meeting; and fourth, by

improperly listing the case number associated with a litigation case considered during

closed session. Plaintiff argues the trial court erred because it relied on its own weighing

of the facts to find plaintiff’s theories lacked merit. We disagree.

We review the trial court’s ruling on a demurrer de novo. (Lee v. Hanley (2014)

227 Cal.App.4th 1295, 1300.) Thus, the court’s weighing of the facts is irrelevant to our

inquiry. If the demurrer can be sustained on any ground raised, we must affirm.

(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If the court sustains a

demurrer without leave to amend and plaintiff seeks leave to amend, plaintiff must

demonstrate how the complaint could be amended to state a valid cause of action. (Ibid.)

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“The [Brown] Act is intended to ensure that the deliberations and actions of the

governing bodies of local agencies are open and public and that provision is made for

meaningful public access to their decisionmaking. ([Gov. Code,] § 54950.) To that end,

the [Brown] Act requires the meetings of such bodies to be open to the public, held on a

regular schedule, and conducted in accordance with an agenda available in advance of the

meeting. ([Gov. Code,] §§ 54953, 54954, 54954.2.)” (Olson v. Hornbrook Community

Services Dist. (2019) 33 Cal.App.5th 502, 514.) “The agenda must contain ‘a brief

general description of each item of business to be transacted or discussed at the meeting,

including items to be discussed in closed session. A brief general description of an item

generally need not exceed 20 words.’ ([Gov. Code,] § 54954.2, subd. (a)(1).)

Importantly, with limited exceptions, ‘[n]o action or discussion shall be undertaken on

any item not appearing on the posted agenda.’ (Id., subd. (a)(2)(E), (3).)” (Ibid.) To

fulfill the Brown Act’s objective, “agenda drafters must give the public a fair chance to

participate in matters of particular or general concern by providing the public with more

than mere clues from which they must then guess or surmise the essential nature of the

business to be considered by a local agency.” (San Diegans for Open Government v. City

of Oceanside (2016) 4 Cal.App.5th 637, 643.)

Applying these principles to the allegations in plaintiff’s complaint, she cannot

demonstrate the trial court erred. As to the consent agenda, plaintiff’s allegation boils

down to one we have seen before; that is, the District failed to notify the public of each

bill it would pay that month and disclosed only that it was paying the District’s monthly

bills. We rejected this claim in Olson v. Hornbrook Community Services Dist., supra, 33

Cal.App.5th at pages 520-521, in pertinent part: “[Plaintiff] argues the description,

‘Approve bills and authorize signatures on Warrant Authorization Form for District

expenses received through January 24, 2017,’ does not substantially comply with the Act

because it does not list the individual items to be discussed and acted upon. We disagree

because the description leaves no confusion as to the essential nature of the District’s

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action, which was to approve bills and authorize signatures for all expenses of the District

received through January 24, 2017. The January 2017 agenda indicated the District’s

expenses would be approved in a single action; those interested in the District’s expenses

would know from the agenda description that they needed to attend the meeting to

participate in that discussion and action. Accordingly, [plaintiff] has not stated a cause of

action under [the Brown Act].”

Plaintiff’s second theory in support of the Brown Act cause of action -- that the

District failed to notify the public of the reason the Board sought to amend the District’s

bylaws -- also lacks merit. The Brown Act extends no obligation to inform the public of

the motivations behind government actions. The Brown Act compels notification of the

action to be transacted or discussed, so that the public will have a meaningful opportunity

to participate in the decisionmaking process. (San Diegans for Open Government v. City

of Oceanside, supra, 4 Cal.App.5th at p. 643.) Here, the agenda notified the public the

Board would be discussing amendments to the District bylaws. All those interested

would know they needed to attend the meeting at which that item was being discussed to

find out the motivations behind the Board’s decisionmaking process. Thus, no Brown

Act violation occurred.

Plaintiff’s third theory alleged the District violated the Brown Act by holding a

closed session with an attorney the District never retained during a noticed and public

hearing. We do not see a Brown Act violation here. Plaintiff identifies the unlawful

action as the closed session item, but alleges the lack of notice pertained to the attorney

representing the District and not as to the substance of the closed session item. Plaintiff

does not allege facts denying her adequate notice of the action to be discussed, thus she

has failed to state a claim under the Brown Act. (San Diegans for Open Government v.

City of Oceanside, supra, 4 Cal.App.5th at p. 643.)

Finally, plaintiff alleged the District violated the Brown Act by improperly listing

the case number associated with a litigation case considered during closed session. We

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are again reminded of Olson v. Hornbrook Community Services Dist., supra, 33

Cal.App.5th at pages 519-520: “ ‘[S]o long as notice of the essential nature of the matter

an agency will consider has been disclosed in the agency’s agenda, technical errors or

immaterial omissions will not prevent an agency from acting. In Castaic[ Lake Water

Agency v. Newhall County Water Dist.], supra, 238 Cal.App.4th at pages 1206-1207, a

water agency published an agenda which stated that its board of directors would conduct

a conference with its legal counsel, in closed session, and ‘discuss potential litigation.’

The agenda erroneously cited [Government Code] section 54956.9, subdivision (c),

which defines ‘litigation’ as including any adjudicatory proceeding; the agenda should

have cited [Government Code] section 54956.9, subdivision (d)(4), which, in particular,

permits closed sessions when an agency is ‘deciding whether to initiate litigation.’ In

finding that the agency’s discussion of and decision to initiate litigation was valid and

that it had substantially complied with the Ralph M. Brown Act, the court stated:

“[Plaintiff’s] argument is hypertechnical and elevates form over substance. The given

notice plainly advised the members of the public that on March 14, 2013, [the board]

would be meeting with its legal counsel, in closed session, to discuss potential litigation

in two cases. The citation in the given notice to subdivision (c) instead of subdivision

(d)(4) of [Government Code] section 54956.9 could not possibly have misled or confused

anyone.” ’ ”

Similarly here, plaintiff does not allege she was confused by the description

contained in the agenda or that the case name associated with the inaccurate case number

was not the case actually considered by the District during the closed session. To

conclude plaintiff has stated a claim with such allegations would elevate form over

substance and extend the Brown Act beyond its stated purpose of requiring “a brief

general description of each item of business to be transacted or discussed at the

meeting . . . .” (Gov. Code, § 54954.2, subd. (a)(1).)

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Even so, plaintiff contends the trial court erred by dismissing the entire case on the

basis she failed to amend the complaint because she had filed the amended complaint and

was seeking default judgment on it. But, as we addressed ante, the trial court had

authority to disregard the amended complaint and plaintiff cannot show she was

prejudiced by the court’s action because the additional cause of action alleged in the

amended complaint failed to state a claim for relief. Accordingly, plaintiff’s challenge to

the trial court’s dismissal of her case lacks merit.

DISPOSITION5

The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(5).)

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Duarte, J.

5 Plaintiff’s request for judicial notice is denied as irrelevant. Plaintiff requests

judicial notice of legislative history materials related to a 2020 amendment to a statute

pertaining to court filing fees. Because plaintiff failed to advance an argument related to

fax-filing fees and generally failed to show she was prejudiced by the court’s denial of

her request for leave to amend the complaint, this material is irrelevant to our

consideration of plaintiff’s appellate contentions.

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