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NOT TO BE PUBLISHED IN THE OFFICAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superi or Court of Mariposa County. Wayne R. Parrish, Judge. Law Offices of Linda L. Daube, Lind a L. Daube and Jeanette L. Lebell for Plaintiffs and Appellants. Griswold, LaSalle, Dowd, Cobb & Gi n, Raymond L. Carlson and Mario U.
Zamora for Defendant and Respondent.
-ooOoo-
This case arises from the terminati on by defendant Lake Don Pedro Community Services District (the district ) of the employment of plaintiff Robert D. Kent, its general2. 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 atto rneys’ fees to the district in an amount exceeding $175,000. The laches ruling was errone ous. The court based its di sposition on a finding that plaintiffs did nothing to bring the case to tr ial during a period of 32 months following the filing of the district’s answer. There is no su bstantial 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 errone ous. To award attorn eys’ 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 lacki ng 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 ev ent, a plaintiff’s approval of an adverse proposed ruling as to form obviously is not an admission th at 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 fo r finding that plaintiffs admitted their case was clearly frivolous and totally lacking in me rit, but these were similarly unsupported by
the record. The court’s error was compounded by the fa ct that the district supplied no billing
records and no task break down of the $175,000 attorneys’ fees b ill. The amount was supported only by a declaration stating the total hours for each attorney over the entire3. life of the case, along with each attorney’s billing rate. U pon this record, it would be impossible for the court to find th at 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 evid ence 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 attemp t 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 PROCED URAL HISTORY Our two previous opinions in this litigation were filed in 2010. ( Kent v. Lake Don Pedro Community Services Dist. (Apr. 30, 2010, F05 8131) [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 fi led 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 di strict for about 15 years, Kent most recently as general manager and Topie most recently as treasure r. On June 30, 2008 , according to the petition, at the end of a closed-session meeti ng of the district’s board, Kent was given a “Letter of Censure” signed by each board me mber and detailing seve ral 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 a nd 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 district4. 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. Co de, § 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 ri ght 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 outsi de of authorized meetings—that is, in illegal serial meetings consis ting of piecemeal conversati ons among board members—to develop an agreement to terminate plain tiffs, in violation of section 54952.2. 3 ( Kent I,

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

1 Subsequent statutory references are to the Government Code unless otherwise stated.
2 Former section 54957, subdiv ision (b), reads as follows: “(1) Subject to paragraph (2), nothing co ntained in this chapter shall be construed to prevent the legislative bo dy of a local agen cy from holding closed sessions during a regular or special meeting to consider th e appointment, employment, evaluation of performance, discipline or dismissal of a pub lic 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 pers on or employee, the employee shall be given written notice of his or her right to have th e complaints or charge s 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 discip linary 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. 201 3, ch. 11, § 1.) The preamendment language is quoted here.
3 Section 54952.2, subdivision (b)(1), reads:5. The district filed a demurrer to the ame nded petition. The trial court sustained the
demurrer without leave to amend and dismisse d 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 coul d establish liability because plaintiffs were not terminated during those m eetings. 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 appl y. 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 To pie 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 Un ited States Code section 1983. ( Kent II, supra , at pp. 4-5.)
The district demurred. The trial court sustained the demurre r without leave to amend on August 26, 2009, an d dismissed the complaint with prejudice on September 11, 2009. ( Kent II, supra , F058926, at pp. 6-7.) It ruled th at 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 defama tory statements. On the due process claim, the court ruled that there wa s no cause of action because there are no due

“A majority of the members of a legi slative body shall not , outside a meeting authorized by this chapter, use a series of communications of a ny kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisd iction of the legislative body.”6. process requirements for termin ation 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.) Plainti ffs’ amended petition adequately pleaded that the district either violated se ction 54957 by hearing complaints or charges against Kent and Topie in a closed sessi on without providing the required notice and advisement, or violated secti on 54952.2 by discussing plainti ffs’ terminations through an improper series of communications out side 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 dism issing the petition with respect to the individual board member defend ants, which was not challenged on appeal. ( Id. at pp. 2, 14.) In the appeal in Kent II, we held that the trial c ourt erred by denying Kent and Topie leave to amend their complaint. It was reasonably possible that plaintiffs could cure defects in their complain t by: (1) alleging their wrongf ul-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) a lleging that their due process rights were infringed because they were stigmatized by a st atement 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 dismissa l 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 orde r was issued on Apr il 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 st ates that Kent also settled Kent
II

two months later (though we find no docume ntation of this in the appellate record).7. The settlements left only the Brown Ac t claims alleged in the petition in Kent I, for which the remedies sought were a declaration purs uant to section 54957, subdivision (b), that
the termination decisions were null and void , as well as reinstat ement 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 cl osed sessions in which the performance of Kent and Topie was discussed, the board heard “specific complaints or charges brought against an employee by anothe r person or employee” within the meaning of section 54957, subdivision (b)(2). It wa s 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 performa nce 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 cens ured. Plaintiffs pr esented evidence that, at the end of the open meeting in which they were terminated, an audience member asked a question about the terminations. Boardm ember Punte responde d 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?” Punt e 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 imp lied that prior discussions among the board members had taken place regardi ng the grounds for plaintiffs ’ terminations, discussions that must have happened either in illegal se rial 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, including8. misuse of district credit cards and timekee ping irregularities. Du ste 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 Topi e’s unemployment claims. Plaintiffs contended that these facts, though circumstantial, were sufficient to support a finding that the district did as th e petition alleged: Someone made allegations against Kent and Topie, and th e board heard these allegations either in closed sessions that did not comply with sec tion 54957, subdivision (b), or th rough a series of piecemeal, unauthorized meetings in violation of section 54952.2, subdivision (b)(1). In its opposition brief, the district argue d that no violations could reasonably be
found because there was no dire ct evidence of what the board heard in closed sessions
and no direct evidence of seri al meetings. In their depos itions, Kent and Topie conceded they had no personal knowledge of serial mee tings, 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 re vealed only that their performance was evaluated in closed sessions. Section 549 57, subdivision (b), distinguishes between evaluating performance and hearing complain ts 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 sh ow, 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 rais ed the issue of laches. First, the district asserted that any back-pay award should be offset, based on laches, becau se of delays following the filing of the district’s answer on Septembe r 17, 2010. The distri ct maintained that plaintiffs did not conduct any depositions between that time and November 2012 and9. “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 pe tition 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 th at they have not prosecuted it with reasonable diligence. The District term inated [plaintiffs] on July 29, 2008. They filed their original petition for writ of mandate in October 2008. Nearly eight months later, the tria l court entered its order sustaining Respondents’ demurrer with out leave to amend and dismissing the petition. In April 2010, the Court of Appeal re versed the trial court’s order, and in August 2010, the Court issu ed its remittitur remanding the case to the trial court. Approximately one month late r, in September 2010, the District filed its answer. From Septembe r 2010 until May 2013, a period of approximately 32 months, [plaintiffs] made no effort to bring this matter to trial. Since filing, with out 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 a nd unreasonable peri od of delay.... “Prejudice to the District from the delay is manifest. [Plaintiffs] seek back pay and benefits from the period from th eir termination on July 29, 2008, to the present. By delaying resolution of this case, [plain tiffs] materially increased their claims for back salary and benefits . In addition, Kent’s reinstatement would require the Distri ct 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 entere d on August 30, 2013.10. The district filed a motion for attorney s’ 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 ca se, but may award them to a prevailing defendant only under lim ited circumstances: “A court may award court costs and reas onable attorney fe es to a defendant in any action brought pursuant to section 54960 or 54960.1 where the defendant has prevailed in a final dete rmination 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 co unsel. Instead, counsel submitted a declaration attesting to the total am ount of fees generated over the entire fiveyear pendency of the litigation. The only supporting materi al was a half-page document listing each timekeeper who workedon the matter at the law fi rm, the hourly rates (which varied over the years) for e ach timekeeper, and the total b illed 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 th is finding on any consideration of the merits of the case. Instead, it ma intained 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] wa s the prevailing party by reason that this action against it was dismissed w ith 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 ad mission that the case was clearly frivolous and totally lacking in merit for purposes of Government Code § 54960.5; that [plaintiffs] abandoned their claims ag ainst individually named respondents on appeal of their dismissal in 2009 w ith prejudice after demurrer; that the [C]ourt of [A]ppeal held such claims waived and affirmed the dismissal with prejudice as to claims against th e individually named respondents; that such failure, abandonment and waiver by [plain tiffs] of such claims constitutes admission that such claims were clearly frivolous and totally11. 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 frivolo us 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 fri volous and totally lack ing in merit by means of their counsel’s approval of the judgment as to form. The distri ct argued only that (a) plaintiffs’ claims agains t 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) pl aintiffs’ claims against the district must have been clearly frivolous and totally lacking in merit because plaintiffs did not prosecute their cl aims 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 ru ling that the action is barred by laches.
Laches is a doctrine accordi ng to which a court can, under some circumstances, refuse relief if delay on the part of the complain ing party would render the granting of relief inequitable. (Newport v. Hatton (1924) 195 Cal. 132.) La ches 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 Ci vil Service Commissioners (1969) 1 Ca l.3d 351, 359 ( Conti ).) The delay can be either before or afte r the filing of the complaint or petition. ( Johnson, supra , at p. 68.) Prejudice must be shown, not presumed. ( Conti, supra , at12. pp. 359-362.) To support the policy of resolving controvers ies 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 ev idence, 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 foundthe 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 te rminated by the district on July 29, 2008. On August 11 and 20, 2008, the district subm itted documents to the Employm ent Development Department opposing plaintiffs’ unemploym ent 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 re versed 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.)

4 One case, Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 719 ( Vernon ), states that, “[i]f there is dela y in prosecuting the mandamus action, the burden of showing that su ch 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 prop osition. It simply states that courts have held that laches is an affirma tive defense, and the burden of proving it is on the defendant. ( Id. at p. 361.) In any case, our hol ding does not depend on an allocation of the burden of proof. We express no opin ion 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 purpos es on April 30, 2011. The district filed an answer to the mandate petition on September 17, 2010. 5 The district served deposition notices a nd requests for production of documents on October 26, 2011. Plaintiffs produced th e documents and were deposed on December 5 and 12, 2011. Plaintiffs served requests for produc tion of documents on January 23, 2012. Respondents served respon ses on March 2, 2012. In 2012, the parties filed a series of papers expressing disagreement about when the cases would be ready for trial. Pl aintiffs filed a form called an At-Issue Memorandum for both cases on January 25, 20 12. They marked sp aces for “yes” where the form asked, “TRIAL SETTING RE QUIRED?” and “PRETR IAL REQUESTED?”
The district filed a counter memorandum on February 3, 2012, stating that trial setting was not required, pretrial was not requested, a nd “[t]he case is not at issue and should not
be set for trial” because the two actions had not been consolidated fo r 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 chan ged 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 co urt requesting a case management conference

5 The 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 statemen t for the mandate case in which they asserted that the case would be ready fo r trial within six months. Th e district filed its pretrial
conference statement on March 21, 2012, in which it denied that that proceeding was really a pretrial conference. The district return ed to its prior position that “trial setting at this time is not appropriate.” The district stated th at 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 par ties to hold a further settlement conference in the interim. Plaintiffs filed a case management statement fo r both matters on June 18, 2012. Plaintiffs indicated that the parties had agreed to partic ipate in mediation and that they intended to complete their discovery by August 2012. Th e district also filed a case management statement on June 18, 2012. It requested a further status conf erence 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 12 0 days to allow for “additional discovery and mediation.” On August 16, 2012, the parties participated in a mediation session. On August 20, 2012, plaintiffs serv ed a case management statemen t in which they stated that all their anticipated discovery would be comp leted by November 15, 2012, and they were requesting trial no later than Ma rch 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 plai ntiffs were conducted in July and November
2012.15. Plaintiffs served deposition notices with document production requests on September 27, 2012. District board member s were deposed on November 7, 8 and 9, 2012. A discovery dispute ar ose around this time. The di strict objected to some of plaintiffs’ document requests, relying on atto rney-client privilege among other things, but did not produce a privilege l og. Plaintiffs also encoun tered difficulty in obtaining documents that an attorney fo r the district in the damages action had subpoenaed from the law firm representing the district in the mand ate case. Plaintiffs’ counsel informed the district that, until the discovery dispute was re solved, plaintiffs woul d not file an opening
brief for the trial in the mandate action in a ccordance with the briefing schedule set at the last case management hearing. In their next case manageme nt statement, filed on November 16, 2012, plaintiffs stated that discovery would be complete by January 15, 2013, a nd requested trial by April 1, 2013. They referred to the discovery dispute and st ated that they anticipated a
need to file motions to compel discovery. On December 15, 2012, plain tiffs did not file an openin g brief as required by the order issued after the August 27, 2012, case management hear ing. 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 plai ntiffs 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 an d the mandate case proceeded to hearing, as we have already described. The parties now dispute whether the reco rd supports the finding of unreasonable delay by plaintiffs in the pros ecution of the action. They al so dispute whether the record supports the finding of prejudice. We begin with unreasonable delay. The trial court found that plaintiffs ca used unreasonable delay because they “made no effort to bring this matter to trial” fo r a period of 32 months from September 201016. (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 eviden ce in support of the finding that plaintiffs made no effort to bring the ma tter to trial between th e filing of the answer and the date of the hearing. During that time, plaintiffs conducted discovery, responded to discovery requests, resolv ed discovery disputes, engage d 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 advi sing the court that the matter was not ready for trial setting. Although the ground stated by the trial court for its dete rmination is not supported by the record, it does not necessarily follow that an unreasonable delay by plaintiffs
cannot be demonstrated from the record. Wi thin the period betwee n the filing of the answer and the hearing, there were shorter delays that could possi bly be shown to be unreasonable. For instance, as the district points out, plaintiffs first served deposition notices in September 2012, two years after th e 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 di strict advanced for judgment in its favor, u pon which the court did no t rule previously. Turning to prejudice, we conclude that the question w ill have to be reconsidered on remand, if the trial court again rests its de cision on laches. The court’s view was that the district was prejudiced because, had the matter been resolved so oner, the claims for back pay would have been less, and reinstat ement of Kent would necessitate terminating a replacement who had been hired, or paying two employees fo r the same job. Forms of

6 The court also found that the hearing did not happen for 40 months from the time of filing, excluding the time wh en 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 m onths. Consequently, we will not analyze it separately.17. prejudice comparable to these ha ve been recognized as suffici ent 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 th e 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 fi ndings on which it was based were abuses of
the trial court’s discretion. II. Attorneys’ fees Plaintiffs contend that the award of attorney s’ 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 me rit.” (§ 54960.5.)
This is a difficult standard to sa tisfy. 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 fri volous” standard in the following way: “[A]ny sanction for prosecuting a frivolou s [case] ‘should be used most sparingly to deter only the most egregious conduct.’ [Citation.] Ultimately ... ‘[a case] may be deemedfrivolous 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.Ap p.4th 353, 368.) An award of attorneys’ fees under th e 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 its18. finding that the action was clearly frivolous a nd totally lacking in merit is supported by
the record and within the bounds of reason. As we w ill 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 re ason 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 a nd 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 mer it. 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 an d total meritlessness of their case by not appealing from the dismissal of the indivi dual defendants. No such concession was implied by the lack of an appeal. In genera l, 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 opin ion, one ground advanced in the trial court in support of the demurrer wa s that the Brown Act provided remedies that ran against the governmental en tity only, not the i ndividual board members. Plaintiffs argued in response that the demurrer should be sustained as to the individual defendants only with leave to amend, sinc e 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 caus es of action against the
individual defendants. Plaintiffs’ decisi on 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.19. The trial court’s final reason for findi ng 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 suppor ted by substantial evidence
and is not within the bounds of reason. A ssuming plaintiffs did la ck diligence, we do not
see how this would amount to an admission th at the case was clearly frivolous and totally without merit. Many factors unrelated to th e merits of a case can contribute to an
unreasonable and unexcused dela y, including lack of funds a nd 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 plai ntiffs 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, re characterized as an ar gument that plaintiffs’ position is not just wron g but frivolous. As we will expl ain, this analysis depends on conclusions that an attorney could reasonably dispute. It follows that the district’s analysis cannot show that plaintiffs’ laws uit was clearly frivolou s 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 pers onal knowledge of any serial meetings. It maintains that this lack of kn owledge 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 th at, absent direct evidence of the hearing of complaints or charges in the closed sessions or of serial meetings, the eviden ce shows only that employee evaluations were conducted in the closed sessions. Employee evaluations, the20. district argues, are permitted in closed se ssion 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 th e alleged violations and never obtained documents or witness testimony directly prov ing them, their case never had any potential, at the outset or by the time of the hearing, to show an ything more than proper employee evaluations. Therefore, the district argues, the case was cl early frivolous and totally lacking in merit. As a preliminary point, plaintiffs’ lack of personal knowledge does not contradict the verified petition. The allegations in th e petition were made on in formation and belief. It is evident that those allegations were ba sed 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 dis tinction between the hearing of complaints and charges (to which the section 54957 requirements at is sue apply) and the conducting of employee evaluations and making of employment decisi ons (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, su bdivision (b)(1), makes a distinction between “consider[ing] the appointmen t, employment, evaluation of performance, discipline or dismissal of a public employee” and “hear[ing] complaints or charge s brought against the employee by another person or employee.” Then, as to the la tter 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 hi s or her right to an open session instead.
The distinction between the two kinds of activities—evaluating performance versus hearing complaints—is difficult to appl y 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 employe e” (§ 54957, subd. (b )(1))—i.e., anyone—of21. 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 cautio usly 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 empl oyees 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 we re 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 accus ations 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 prio r 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 coul d reasonably believe plaintiffs had a viable case based on circumst antial evidence. The performance of Kent and Topie was discussed in closed sessions; at the end of one of these, Kent was censured22. 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 i ssue of the terminations for some time. Board members received and investigated other employees’ claims of misconduct by Kent and To pie. 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 th e board heard complaints or charges against Kent and Topie in closed sessions, unless it instead developed the grounds for their
terminations in se rial meetings. In sum, on the record be fore 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 ne ed 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 establis h the fees reasonably
incurred. To serve as the basis of a reas onable 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 atto rney ... involved in the presentation of the case.’ [Citation.]” ( Ketchum v. Moses (2001) 24 Cal.4th 11 22, 1131-1132.) To determine what amount of fees is reasonable, “trial courts must care fully 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 attorn ey for the entire multi-23. year case, along with each atto rney’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 th at 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 attorney s’ fees are reversed. The matter is remanded to the trial court for further procee dings consistent with this opinion. On remand, the trial court may reconsider the is sue of laches on grounds other than those rejected herein, as well as the remaining issu es raised by the par ties at the hearing on May 20, 2013, but not addresse d previously by the trial c ourt. Costs on appeal are awarded to plaintiffs.

_____________________ Smith, J. WE CONCUR:

_____________________ Cornell, Acting P.J.

_____________________ Poochigian, J.