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NOT TO BE PUBLISHED IN THE OFFICAL REPORTS 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 This opinion has not been certified for publication 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

Plaintiffs and Appellants, 

 v. 

LAKE DON PEDRO COMMUNITY 

SERVICES DISTRICT, 

Defendant and Respondent. 

Consolidated Case Nos. 

F068354 & F069197 

(Super. Ct. No. 9395) 

OPINION 

 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 
2. 

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 
3. 

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 
4. 

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: 
5. 

 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.” 
6. 

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). 
7. 

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 
8. 

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 noticeand-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 
9. 

“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. 
10. 

 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 fiveyear 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 
11. 

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 
12. 

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. 
13. 

 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 

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

answer was filed in the damages action. 
14. 

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. 
15. 

 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 
16. 

(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. 
17. 

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 
22. 

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.