1

Filed 1/5/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

GABRIEL HERNANDEZ,

Plaintiff and Respondent,

v.

TOWN OF APPLE VALLEY,

Defendant and Appellant;

WALMART STORES, INC.,

Real Party in Interest and 

Appellant.

E063721

(Super.Ct.No. CIVDS1312548)

OPINION

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. 

Affirmed in part; reversed in part.

Best, Best & Krieger, Piero C. Dallarda, Danielle G. Sakai and Thomas M. 

O’Connell for Defendant and Appellant.

 

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts D and E. 
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Manatt, Phelps & Phillips and Keli N. Osaki for Real Party in Interest and 

Appellant.

Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and 

Respondent.

Daniel P. Selmi; Shute, Mihaly & Weinberger, Rachel B. Hooper, Sara A. Clark 

and Allison A. Johnson for Center for Community Action and Environmental Justice as 

Amicus Curiae on behalf of Plaintiff and Respondent.

Defendant and appellant Town of Apple Valley (Town) and real party in interest 

and appellant Wal-mart Stores, Inc. (Walmart) appeal the grant of the motion for 

summary judgment and/or adjudication (Motion) in favor of plaintiff and respondent 

Gabriel Hernandez. This case involves a measure passed by the Town’s electorate on 

November 19, 2013, in a special election (Initiative) that amended the general plan to 

allow for a 30-acre commercial development, which would include a Walmart 

Supercenter. Walmart provided a gift to Town to pay for the election and Town accepted 

the payment by adopting a memorandum of understanding (MOU) at a regular council 

meeting held on August 13, 2013.

Hernandez filed a first amended complaint against Town and Walmart alleging 

violations of the Ralph M. Brown Act, Government Code section 54950 et seq. (Brown 

Act) for actions taken at the Town’s council meeting on August 13, 2013, and that the 

Initiative violated the California Constitution, article II, section 12 (article II, section 12). 

Specifically, Hernandez argued the agenda for the Town’s council meeting failed to 

provide the proper notice of the actions to be taken at the meeting, e.g., that the Town 
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council would vote to send the Initiative to the voters and approving the MOU that 

accepted the gift from Walmart to pay for the special election. Further, Hernandez 

alleged that although Walmart was not specifically named in the Initiative, it was clear 

from the other ballot materials that Walmart was identified within the meaning of article 

II, section 12 rendering the Initiative unconstitutional. The trial court granted the Motion 

finding the MOU and Initiative were void and invalid. The trial court awarded 

Hernandez $5,241.96 in costs and $45,053.75 in attorney fees.

Town and Walmart raise the following issues on appeal:

1. The Motion failed to demonstrate that Town violated the Brown Act. 

2. The Motion failed to demonstrate that the Initiative violated article II, 

section 12.

3. The trial court improperly awarded Hernandez his costs because his 

memorandum of costs was filed late and included items that were not recoverable.

4. The trial court should have denied or reduced Hernandez’s request for 

attorney fees because he failed to meet his burden of establishing local market rates for 

attorneys in San Bernardino County.

The Motion was properly granted on the violation of the Brown Act, which 

invalidates the special election on the Initiative. Since it is likely that the matter will 

again be placed on the ballot or voted on by the Town council, we also find that the 

Initiative as written did not violate article II, section 12. The award of costs is reversed 

as the memorandum of costs was filed late without a showing by counsel that such late 
4

filing was due to mistake of law, inadvertence, or surprise. The attorney fee award is 

affirmed.

FACTUAL AND PROCEDURAL HISTORY

A. STATEMENT OF FACTS

The following facts are taken from the undisputed material facts agreed to by 

Hernandez, and Town and Walmart; and the additional disputed facts presented by 

Hernandez, and by Town and Walmart.

Hernandez was a resident of Apple Valley and was a registered voter. Town was a 

local agency and legislative body within the meaning of Government Code sections 

54951 and 54952. Walmart was a private corporation. Item No. 16 on the Town council 

meeting agenda to be held on August 13, 2013, read “Wal-Mart Initiative Measure” and 

the recommendation for action was “Provide direction to staff.” Hernandez alleged there 

was no further information on the agenda regarding this matter. 

The Town adopted three resolutions at the meeting: Resolution No. 2013-33 was 

to call a special election on the Initiative to be held on November 19, 2013, and the 

Initiative would be titled Dale Evans Parkways Commercial Specific Plan (the Specific 

Plan); Resolution No. 2013-34 provided for filing rebuttal arguments for and against the 

Initiative; and Resolution No. 2013-35 for filing rebuttal arguments for and against the 

Initiative. Town also adopted the MOU that authorized accepting a gift from Walmart to 

pay for the special election. These resolutions and The Specific Plan were not on the 

agenda. The agenda did not provide a description of the Walmart Initiative Measure and 

the resolutions adopted did not mention the Walmart Initiative Measure in their text.
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In 2011 there was an initiative measure circulated that the Town council referred 

to as the “Wal-mart Initiative Measure.” The matter appeared on the agendas for 

meetings in March, April and October 2011 as the “Wal-mart Supercenter Ballot 

Initiative.” When Hernandez viewed the agenda for the August 2013 meeting, he 

understood that it was to discuss the action to be taken on the 2011 ballot initiative, 

which had been declared null and void. Further, Hernandez believed the only action to 

be taken at the meeting was to give staff direction as to what to do next. If he had known 

about the actions to be taken at the meeting, he would have attended the meeting and 

submitted comments. 

Hernandez was concerned that Walmart paid to circumvent the “normal 

administrative vetting process” by paying for the special election. He would have 

requested a report be prepared before the Town adopted the resolutions and called the 

special election so that the council and voters would be better informed.

On September 12, 2013, Hernandez sent a request, pursuant to the Brown Act, to 

Town to cure the Brown Act violation. On October 1, 2013, Town declined to cure the 

alleged violations of the Brown Act.

The ballot materials with the Initiative included language that “VOTING YES ON 

MEASURE D will approve an upgraded new Walmart store and other businesses at the 

corner of Dale Evans Parkway and Thunderbird Road.” The ballot argument in favor of 

the Initiative included language that “Walmart proposed a new, upgraded store offering 

more affordable, fresh groceries and expanded retail choices for Apple Valley’s 
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hardworking families.” Prior to the vote, several articles appeared in the Victor Valley 

Daily Press that the Initiative was to bring a Walmart to Apple Valley. 

Walmart donated $725,000 to Apple Valley Consumers for Choice. They were a 

proponent of the Initiative. The Initiative referred to the fee title holder. Walmart was 

the fee title holder. The Initiative also included language that the owner of the parcel 

would contact the fire district to verify current fire protection requirements. Also the 

owner and/or developer was responsible for all new fire hydrants. The Initiative measure 

defined “developer” as “any individual or other entity proposing any development within 

the Specific Plan area.” The Initiative used language such as “developer is responsible 

for,” “developer is responsible to ensure,” “developer shall,” “developer will be required 

to,” and “developer must.” Developer was responsible for any fees associated with 

environmental standards, permit applications, utilities, landscaping or any other 

unforeseen reasons. 

The Initiative and the ballot materials stated that the general plan would be 

amended to add to the Town of Apple Valley Development Code the enactment of the 

Specific Plan in order to allow a proposed commercial development of approximately 30 

acres near the Happy Trails Highway at the intersection of Dale Evans Parkway and 

Thunderbird Road. 

Hernandez believed the Initiative for the Specific Plan was for the benefit of 

Walmart. He read in the Victor Valley Daily Press that Walmart asked Town for the 

ballot measure. He read the ballot argument in favor of the Initiative that stated a “yes” 

vote would approve a new upgraded Walmart store at the corner of Dale Evans Parkway 
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and Thunderbird Road. He believed the Specific Plan was for the benefit of Walmart so 

it could build its new store.

Town and Walmart disputed many of the above facts and insisted an agenda 

packet was available with the agenda, which included information as to the options the 

Town council had to pursue development, the text of resolutions that were adopted, a 

summary of the Initiative and the possibility of calling a special election. The Specific 

Plan was in the agenda packet that was part of the agenda. Further, the Walmart 

Initiative Measure was fully described in the agenda packet.

Walmart and Town contended that all of the information regarding the actions to 

be taken at the August meeting were in the agenda packet that was available online and in 

the clerk’s office. They also disputed that Hernandez looked at the agenda prior to the 

meeting and that he would have attended the meeting. Town and Walmart noted that 

several other citizens were at the meeting and objected to the resolutions and other action 

taken by the Town council. 

Town and Walmart objected to the ballot materials being relevant. They also 

disputed that Apple Valley Consumers for Choice was a major proponent of the 

Initiative. 

Town and Walmart submitted additional facts. On May 14, 2013, Dennis Patrick 

Orr filed a notice of intent to circulate the Initiative to amend the Town’s general plan in 

order to establish the Specific Plan. The Initiative would provide for a retail 

development, which would have multiple retailers. It received enough signatures to be 

considered by the Town council. 
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The agenda for the Town council meeting was posted on the Town’s Web site, at 

the Town library and the Town clerk’s office with the agenda packet being available. 

The agenda packet included information that the Town council could act at the meeting 

by submitting the Initiative to the voters in a special election. The special election would 

be held on its own and conducted by Town. At the meeting on August 13, 2013, 16 

comment cards were received from the members of the public who were present to 

comment on agenda item No. 16. Of those cards, 14 objected to the Initiative. Further, 

eight of them requested further review of the Initiative. Four persons spoke at the 

meeting objecting to agenda item No. 16. 

The terms “owner” and “fee title holder” were not defined in the Initiative. 

B. PROCEDURAL BACKGROUND

1. COMPLAINT

On October 15, 2013, Hernandez filed his first complaint for declaratory relief and 

injunctive relief and petition for writ of mandate against Town only. He alleged one 

cause of action of a violation of the Brown Act for the actions taken by the Town council 

without the items appearing on the agenda. He attached the letter he sent to the Town on 

September 12, 2013, requesting that the Town cure the violation within the directives of 

Government Code section 54950.

Town filed a demurrer. Town noted defects in the complaint, e.g., Hernandez 

failed to allege he was a California citizen to show standing and the statutory basis for a 

writ of mandate. The trial court granted the demurrer on January 28, 2014, and gave 

Hernandez leave to amend. 
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2. FIRST AMENDED COMPLAINT

Hernandez filed his first amended complaint (FAC) on February 14, 2014, against 

Town and Walmart. He alleged he resided in Town and was a registered voter. He 

alleged a Brown Act violation in his first cause of action. He maintained that agenda 

item No. 16 for the Town Council’s meeting read “Wal-Mart Initiative Measure” and 

“Provide information to staff.” No other information appeared on the agenda. 

Hernandez alleged that none of the actions taken appeared on the agenda, including the 

three resolutions and the MOU. Hernandez alleged that all of the actions taken were not 

regarding the Walmart Initiative but rather on what would be the Specific Plan. 

Hernandez noted that Government Code section 54954.2, subdivision (a)(1), 

requires posting of an agenda 72 hours before a city council meeting with a brief 

description of each item of business to be discussed at the meeting, not to exceed 20 

words. The city council could only discuss and take action on those items on the agenda. 

Since the Specific Plan, or the new Initiative, did not appear on the agenda, no action 

could be taken. Hernandez insisted he was harmed because he was denied the benefits 

and protections provided by compliance with Government Code section 54954. He 

would have attended the meeting or submitted comments if he knew the Initiative was 

going to be discussed. 

In his second cause of action, he alleged a violation of article II, section 12. 

According to that section, “No amendment to the Constitution, and no statute proposed 

by the electors by the Legislature or by initiative, that names any individual to hold any 

office, or names or identifies any private corporation to perform any function or to have 
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any power or duty, may be submitted to the electors or have any effect.” Hernandez 

conceded the Initiative did not name Walmart, but it was clear to the electorate that the 

beneficiary of the Initiative was Walmart. 

Hernandez sought an injunction on any development because the violation of the 

Brown Act rendered the actions taken by the Town council null and void. Moreover, the 

Initiative should be declared unconstitutional. 

Town and Walmart brought motions to strike the second cause of action and 

joined in each other’s motions. Town also filed a demurrer to the FAC. Town sought 

judicial notice of the Initiative, the voter information guide and sample ballot for the 

November 19, 2013, special election. Walmart also filed a demurrer. Hernandez 

opposed the motions to strike and demurrers. 

On June 12, 2014, the trial court overruled the demurrers and denied the motions 

to strike. In a written order, the trial court found Hernandez was a registered voter in 

Town. It stated the Initiative was known as Measure D. It was known “colloquially as 

the ‘Wal-Mart Initiative Measure.’” If upheld, it would allow for the development of a 

Walmart “supercenter” on property owned by Walmart. The trial court found a violation 

of article II, section 12. It found, “While Wal-Mart is not named in the Measure, it is 

nevertheless identified, because the Measure confers special privileges on the ‘owner’ of 

the property, which is Wal-Mart.” The Initiative referenced the “developer” and 

“owner.” While the trial court noted that reference to “developer” did not necessarily 

mean Walmart, “owner” was clearly Walmart. Town and Walmart filed answers to the 

FAC raising affirmative defenses.
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3. MOTION FOR SUMMARY JUDGMENT/ADJUDICATION FILED 

BY HERNANDEZ

Hernandez filed his Motion on November 14, 2014. Hernandez stated there were 

no disputed material facts as to both of his causes of action. 

Hernandez alleged that Town violated California’s open meeting law, the Brown 

Act, by failing to properly list in the agenda for the Town council meeting the actions to 

be taken at the August 13, 2013, meeting. Hernandez explained that there previously had 

been a Walmart initiative proposed but had been dismissed by another trial court because 

it named Walmart. When Hernandez got the agenda for the August 13, 2013, meeting, he 

believed it was merely to advise staff what to do on the prior initiative. However, the 

Town adopted the three new resolutions, including approving a special election on the 

Specific Plan. Hernandez had no notice of the Specific Plan or that there would be action 

taken to set up a special election. Had he been aware of the Initiative, he would have 

attended the meeting or submitted comments. He was concerned about Walmart 

circumventing the normal process by paying for the special election. 

As for the violation of the article II, section 12, Hernandez admitted the Initiative 

did not use the name Walmart but rather “identifies” Walmart. The terms “site owner” 

and “developer” clearly referred to Walmart. Walmart clearly was the beneficiary 

because it had spent over $700,000 to get the Initiative passed. There was not a 

possibility of severing parts of the Initiative to save it. Moreover, the ballot materials 

referenced Walmart. 
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Hernandez submitted a declaration that he was a resident of Apple Valley and saw 

the agenda prior to the meeting. He was not sure if the reference to the Walmart 

Initiative was to the first initiative or some other initiative. Regardless, he did not 

anticipate that any action was going to be taken at the meeting. Had he known, he would 

have attended the meeting and submitted comments. He would have asked for an 

additional report. There was no doubt in his mind that the Initiative benefitted Walmart.

Hernandez attached numerous exhibits to the Motion, including an article in the 

Daily Press about the development that named Walmart; a contribution by Walmart in the 

amount of $515,000 to Apple Valley Consumers for Choice; the ballot argument in favor 

of the Initiative that named Walmart; the meeting agenda that included item No. 16, 

which only stated “Wal-mart Initiative Measure” and advise staff; the meeting minutes 

that outlined the resolutions that were passed and that comments were submitted agenda 

item No. 16; the text of the Initiative and the resolutions mentioned at the meeting; the 

original Walmart initiative from 2011; the meeting minutes from the original initiative, 

which was Ordinance No. 420; Town’s response to request to cure, which included that 

the agenda packet be available to all persons at the Town clerk’s office or online; which 

included the Initiative and the resolutions, and there were 14 other people there to talk 

about the Initiative, and that it simply chose to put the Initiative on the ballot; an article 

from the San Bernardino County Sentinel about the Initiative and naming Walmart; 

documents showing Walmart was the owner of the property; a draft report for the 

shopping center that showed the eventual plan would have five retail spaces, one of 

which would be occupied by Walmart.
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4. TOWN AND WALMART JOINT OPPOSITION TO THE MOTION

On January 15, 2015, Town and Walmart filed their opposition to the Motion 

(Opposition). Both contended the agenda fully complied with the mandates of the Brown 

Act and that the Initiative neither named nor identified Walmart in violation of article II, 

section 12. They alleged that the agenda gave more information than required by the 

Brown Act. Further, Hernandez had not shown prejudice as several other persons who 

were present at the August 13, 2013, meeting opposed the resolutions and special 

election, and requested further review.

Town and Walmart alleged the agenda for the meeting was posted on the Town’s 

Web site, clerk’s office and library. The agenda packet prepared for the meeting included 

a summary of the Initiative, the procedure that would be followed for a special election, 

and the resolutions that would be passed. A hyperlink on the Web site directed a person 

to the packet. At the meeting, 14 comment cards were received in regards to agenda item 

No. 16. Eight of the cards asked for further review of the matter. Four persons spoke in 

opposition at the meeting. 

There was no Brown Act violation when there was substantial compliance. 

Further, substantial compliance is a factual question. Town did nothing to thwart the 

objective of the Brown Act. Hernandez had to show “meaningful prejudice to void a 

public agency action.” There was substantial participation in the meeting in opposition to 

agenda item No. 16. 

The Initiative did not violate article II, section 12. Town and Walmart agreed that 

some Town residents and others knew the commercial development included a Walmart 
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store. However, this was not the question for summary judgment; rather, the question 

was whether Walmart was named in the four corners of the Initiative, which it was not. 

Town and Walmart argued that the Initiative should be approved unless there was

a clear and unmistakable constitutional violation. They argued the “identification” of 

Walmart in extraneous materials was not a violation of the California Constitution as a 

matter of law. Further, even though the Initiative used the term “developer,” it was not 

just Walmart; it applied to anyone who was going to put in a store in the development. 

Further, the fact that outside articles discussed Walmart, or the fact that Walmart helped 

fund the Initiative, did not establish a constitutional violation. Many persons in addition 

to Walmart would benefit, including the public and other stores who developed in the 

area. 

Finally, if the trial court were to find that certain provisions of the Initiative were 

invalid, it could sever those offending provisions while leaving most of the Initiative 

intact. 

The Town clerk submitted a declaration that she posted the agenda for the August 

13, 2013, meeting on August 8, 2013. On the Town’s Web site, a hyperlink directed the 

person to the agenda packet that was also available at the Town’s library and clerk’s 

office. The agenda packet included a summary of the Initiative, description of the 

procedure to conduct a special election, and the three resolutions. 

The agenda packet or staff report for the meeting was included as an exhibit to the 

motion. It was lengthy, but labeled with the agenda item. Agenda item No. 16 included 

a summary of how the Initiative had been submitted to the Town council in the 
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appropriate manner. It gave three options for proceeding, which included adopting the 

Initiative, submitting the Initiative to voters at a special election, or conducting more 

review. The three resolutions were included. The report for agenda item No. 16 was 139 

pages. 

The comment cards were included as an exhibit. Several of those comment cards 

included requests that the Town council send agenda item No. 16 for further review. 

The minutes from the meeting were included. At the meeting, the Town manager 

advised the Town council that there was an option to accept an offer from Walmart 

gifting sufficient funds to cover the expense of the election. The Town manager sought 

to have Town council authorize, if it chose a special election, a MOU, so that the money 

could be accepted. The offer to pay for the election was made by Walmart on August 9, 

2013, which was after the agenda was posted. The motion to approve the MOU was 

passed by the Town council. 

5. HERNANDEZ’S REPLY TO THE OPPOSITION

Hernandez filed his reply to the Opposition on January 26, 2015. Hernandez again 

argued that despite the Dale Evan Specific Plan being adopted at the meeting, the agenda 

called it the Walmart Initiative Measure. Further, he was not required to review the 

agenda packet to find the information regarding agenda item No. 16 hidden in over 400 

pages of materials. Hernandez suffered prejudice because there was no evidence that 

other persons raised the issues he wanted to raise at the meeting. For example, he had 

“serious concerns about Walmart making a mockery of the normal administrative process 

by trying to pay money to circumvent the process.” Further, based on extrinsic evidence, 
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such as press releases and the initiative in 2011, it was clear the Initiative referred to the 

Walmart development and that Walmart was the beneficiary. Walmart, as the owner of 

the property, was given special duties and powers.

6. RULING

The matter was heard on January 29, 2015. The trial court stated its tentative 

ruling was to grant the Motion. The trial court noted first that just stating “Walmart 

Initiative” on the agenda could have been confusing because of the prior initiative. 

Further, the agenda did not have the resolutions listed and the actions to be taken. Even 

though there was an agenda packet, it was long and difficult for a member of the public to 

interpret. The other problem was the MOU was not mentioned in either the agenda or the 

agenda packet. The trial court then noted that as to the resolutions, since other members 

of the public commented on them, prejudice had not been shown. However, there were 

no comments on the MOU and it was not “surprising” because it did not appear in the 

agenda or agenda packet. The trial court believed that Hernandez had shown prejudice as 

to the MOU. Therefore, the trial court would summarily adjudicate the Brown Act 

violations in Hernandez’s favor. 

The trial court then found that the Initiative did not name Walmart. The trial court 

noted the Initiative referred to the owner of the property, which was Walmart. The court 

noted, “Now, of course, Wal-Mart could sell the property to someone, but that’s a matter 

that is exclusively within Wal-Mart’s decision-making ability.” Based on the newspaper 

articles, everyone in the community knew that the Initiative would bring a Walmart to the 
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development. The trial court concluded, “Everybody knows who Wal-Mart is and knows 

what’s going on with these properties.” 

Town argued that the Motion could not be granted because there were disputed 

facts. Town argued the Brown Act did not require that every “single tiny little piece of 

the project” be included. The trial court interrupted and stated it was important because 

Walmart was offering to pay for the special election. Town complained none of 

Hernandez’s documents specifically raised an issue as to the MOU. Town argued that it 

was suspect Hernandez read the agenda, and claims now to be interested in the project, 

but did not attend the meeting.

Hernandez responded he had alleged that he was concerned that Walmart was 

paying to circumvent the normal administrative process. The public should have had an 

opportunity to address how it felt about Walmart paying for the special election as it 

affected the democratic process. Further, there was nothing in the record of the meeting 

that someone had objected to Walmart paying for the election. 

Town and Walmart also argued there was no violation of article II, section 12. 

Walmart was not named in the Initiative. It was also clear the public was aware the 

development would include a Walmart. Article II, section 12 did not prohibit the public 

from knowing the beneficiary of an initiative. The court was required to give substantial 

deference to the will of the electorate. Town and Walmart argued that the Initiative 

identified different roles, such as developer and owner, but never specifically identified 

Walmart. To prohibit such action in an Initiative, as the “owner” and “developer” could 

always be identified, would overrule almost every land-use law. Further, “The role here 
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identified in this initiative does not identify a specific entity that is not capable of being 

changed.” Further, the Initiative did not require that Walmart be the developer or owner. 

Hernandez argued that Walmart, as the owner of the property, had a special 

privilege bestowed upon it by the Initiative. Walmart had a monopoly on what occurred 

on the property. The trial court took the matter under submission. 

Hernandez’s motion for summary judgment was granted by written order. 

According to the written order, Town’s approval of the MOU at the August 13, 2013, 

meeting was declared invalid, void, and unenforceable. A peremptory writ of mandate 

was issued to command Town to set aside the approval of the MOU.1 Further, the 

Initiative was declared to be invalid, void, and unenforceable under the California 

Constitution. It was ordered that Hernandez would receive attorney fees and costs, 

jointly and severally, from Town and Walmart at a later date to be determined. Notice of 

entry of judgment was filed on March 30, 2015. Discussion of the costs and attorney fees 

awarded will be discussed in detail, post.

DISCUSSION

A. STANDARD OF REVIEW 

“A trial court will grant summary judgment where there is no triable issue of 

material fact and the moving party is entitled to judgment as a matter of law.” (Towns v. 

Davidson (2007) 147 Cal.App.4th 461, 466.) “Under the summary judgment statute, the 

 

1

 Town and Walmart asked this court to take judicial notice of the proposed 

judgment to show the trial court’s order only found prejudice as to the lack of notice on 

the MOU. We find no reason to take judicial notice; the request is denied.
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moving papers must demonstrate that “material facts” are undisputed and that the movant 

is entitled to judgment as a matter of law. [Citation.] The moving party’s papers are 

strictly construed whereas those of the opposing party are liberally construed, with all 

doubts about the granting of the motion resolved in favor of the opposing party.” (Y.K.A. 

Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th

339, 352.)

B. BROWN ACT VIOLATION

The trial court granted the Motion finding that the agenda posted by Town for the 

August 13, 2013, council meeting did not properly include notice that it was considering 

approving the MOU accepting a gift from Walmart to pay for the special election. 

Further, it found that Hernandez was prejudiced by the lack of notice as no other 

community member discussed the fact that Walmart was paying for the special election at 

the Town council meeting. Town and Walmart concede the MOU was not in the agenda 

or agenda packet. Nonetheless, they argue Town substantially complied with the Brown 

Act. Further, Hernandez failed to show prejudice in the Motion.

The Brown Act, also known as the California open meeting law, is designed to 

encourage public participation in government decision making. (Bell v. Vista Unified 

School Dist. (2000) 82 Cal.App.4th 672, 681.) “[T]he keystone of the Brown Act is the 

requirement that ‘[a]ll meetings of the legislative body of a local agency shall be open 

and public. . . .’” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 375.) “The Brown 

Act begins with a forceful declaration of the Legislature’s purpose: ‘In enacting this 

chapter, the Legislature finds and declares that the public commissions, boards and 
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councils and the other public agencies in this State exist to aid in the conduct of the 

people’s business. It is the intent of the law that their actions be taken openly and that 

their deliberations be conducted openly. [¶] The people of this State do not yield their 

sovereignty to the agencies which serve them. The people, in delegating authority, do not 

give their public servants the right to decide what is good for the people to know and 

what is not good for them to know. The people insist on remaining informed so that they 

may retain control over the instruments they have created.’ ” (San Joaquin Raptor 

Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, 1175 (San Joaquin).)

“ ‘At least 72 hours before a regular meeting, the legislative body of the local 

agency, or its designee, shall post an agenda containing a brief general description of 

each item of business to be transacted or discussed at the meeting, including items to be 

discussed in closed session. A brief general description of an item generally need not 

exceed 20 words. . . . [¶] No action or discussion shall be undertaken on any item not 

appearing on the posted agenda, except [exceptions that are inapplicable here].” (Moreno 

v. City of King (2005) 127 Cal.App.4th 17, 24.)

Government Code section 54960.1 provides: “(d) An action taken that is alleged 

to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 

54956.5 shall not be determined to be null and void if any of the following conditions 

exist: [¶] (1) The action taken was in substantial compliance with Sections 54953, 

54954.2, 54954.5, 54954.6, 54956, and 54956.5.”

Here, Town and Walmart argued below that the posted agenda included an 

attached agenda packet; however, Hernandez maintained that he should be able to 
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identify from the posted agenda alone the items to be discussed at the meeting. We need 

not resolve whether the Brown Act allows for the submission of an agenda packet with 

the agenda in order to conform with the Brown Act, as here, while it is true the agenda 

and agenda packet included the resolutions to be adopted and the Initiative language, it 

did not include any information regarding the MOU, which was adopted by Town. The 

MOU allowed the Town to accept a gift from Walmart in order to pay for the special 

election and is the only claim found by the trial court to have prejudiced Hernandez. No 

one at the meeting discussed the matter or commented on the MOU. In fact, it was first 

proposed at the meeting as Walmart offered the gift to the Town the day after the agenda 

was posted. This is troublesome as it is conceivable this was a major factor in the 

decision to send the matter to the electorate.

In San Joaquin, supra, 216 Cal.App.4th 1167, the Merced County Planning 

Commission posted an agenda that set forth one item of business for its upcoming 

meeting, which was the potential approval of a subdivision application to divide 380.45 

acres into nine parcels. “The agenda, however, failed to mention that the Commission 

would also be considering whether or not to adopt a CEQA document known as a 

mitigated negative declaration (MND) concerning the environmental impact of the 

project.” (Id. at p. 1170, fn. omitted.) At the meeting, the Commission approved the 

project and adopted the MND. (Ibid.) The appellate court found there was a violation of 

the Brown Act. First, it emphasized the language in Government Code section 54954.2 

that “each item of business” must be on the agenda. (San Joaquin, at p. 1176.) It also 

noted that the MND was “plainly a distinct item of business, and not a mere component 
22

of project approval, since it (1) involved a separate action or determination by the 

Commission and (2) concerned discrete, significant issues of CEQA compliance and the 

project’s environmental impact.” (Id. at p. 1177, fns. omitted.) 

In this case, agenda item No. 16 only listed that the “Walmart Initiative Measure” 

and the direction to be given to staff would be discussed at the meeting. In the agenda 

packet, Town included a summary of the resolutions that it passed and the Initiative. In 

none of the documents was the “item of business” that Town council was going to accept 

a gift from Walmart in order to pay for a special election to pass the Initiative. 

Hernandez was given no notice that this important “item of business” was going to be 

voted on at the Town council meeting. 

Here, Town’s action of putting the Initiative on the ballot was properly found null 

and void by the trial court as the Town council’s decision to put the Initiative on the 

ballot was done so in violation of the Brown Act. We do not end our review here. It is 

clear that this matter will again be considered by the Town council and another initiative 

will be possibly adopted at a later date after appropriate public comment. We therefore 

address whether the Initiative as written violated article II, section 12.

C. CONSTITUTIONAL VIOLATION 

The trial court also concluded that the Initiative violated article II, section 12 and 

declared the Initiative null and void. Walmart and Town contend that the Initiative did 

not name Walmart in the four corners of the Initiative. They insist the trial court erred by 

looking outside the Initiative to the ballot materials to “identify” Walmart as the
23

beneficiary of the Initiative. We conclude that the Initiative as written does not violate 

article II, section 12. 

As previously stated, article II, section 12 provides that “No amendment to the 

Constitution, and no statute proposed to the electors by the Legislature or by initiative, 

that names any individual or any office, or names or identifies any private corporation to 

perform any function or to have any power or duty, may be submitted to the electors or 

have any effect.” “The Legislature’s chosen language is the most reliable indicator of its 

intent because ‘ “it is the language of the statute itself that has successfully braved the 

legislative gauntlet.” ’ [Citations.] We give the words of the statute ‘a plain and 

commonsense meaning’ unless the statute specifically defines the words to give them a 

special meaning. [Citations.] If the statutory language is clear and unambiguous, our 

task is at an end, for there is no need for judicial construction.” (MacIsaac v. Waste 

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082-1083.)

The parties do not dispute that the Initiative did not specifically name Walmart. 

However, the trial court accepted Hernandez’s argument that everyone knew that 

Walmart would benefit from the Initiative. Further, the trial court found the Initiative 

granted powers to the owner and developer of the property, who was clearly Walmart, as 

evidenced by the ballot materials.

The Initiative provided, “As used herein, the term ‘developer’ shall mean any 

individual or other entity proposing any development within the Specific Plan area.” The 

Initiative provided that the developer would pay for the costs of any code enforcement 

and attorney fees for any action taken concerning the approval of the Specific Plan. The 
24

Initiative was being proposed so that a commercial development with a combination of 

retail and service establishments would be added to the Town. The Initiative also 

provided for strict rules as to the development of the area and specific rules for parking, 

signage, and landscaping. There was reference to the fact that before any construction 

could occur on the parcel, the “owner” was to contact the local fire department to ensure 

compliance with any relevant fire protection requirement. The developer was to obtain 

water for the property. The developer was also responsible for the drainage systems. 

The diagrams submitted with the Initiative referred to “major tenant.” However, the 

Initiative never named Walmart, and it was the sole corporation entitled to develop or 

own the property. 

Only a few cases have addressed article II, section 12. Pala Band of Mission 

Indians v. Board of Supervisors (1997) 54 Cal.App.4th 565 (Pala), involved the 

following: “In 1994, San Diego County voters approved Proposition C, an initiative 

entitled the ‘Gregory Canyon Landfill and Recycling Collection Center Ordinance.’ 

Proposition C amended the San Diego County General Plan (General Plan) and the San 

Diego County Zoning Ordinance (Zoning Ordinance) to designate an area known as 

‘Gregory Canyon’ for use as a privately owned solid waste facility. The initiative 

conditioned the development of the facility on approval from various state and federal 

agencies. The initiative placed the responsibility for obtaining the state and federal 

permits on the ‘Applicant,’ defined as ‘Servcon–San Marcos, Inc. or its assignee or 

authorized representatives.’ ” (Id. at p. 570.) 
25

The Pala court first noted that “Our review of this appeal is . . . strictly 

circumscribed by the long-established rule of according extraordinarily broad deference 

to the electorate’s power to enact laws by initiative. The state constitutional right of 

initiative or referendum is ‘one of the most precious rights of our democratic process.’ ” 

(Pala, supra, 54 Cal.App.4th at pp. 573-574, citing to Mervynne v. Acker (1961) 189 

Cal.App.2d 558, 563.)

In assessing whether the initiative violated article II, section 12, the appellate court 

noted that most of the initiative referred to construction of the waste facility and the 

necessary permits. The facility would be based on a detailed plan submitted by the 

“applicant.” The Pala court concluded, “Thus, the proposition provides the applicant 

(defined as Servcon) with the sole responsibility of preparing and submitting the site plan 

that will ultimately define the precise nature of the project created by the proposition. 

This imposes functions, powers, and duties on Servcon within the meaning of article II, 

section 12.” (Pala, supra, 54 Cal.App.4th at p. 584.)

The court found that the initiative granted powers to Servcon that it did not have 

prior to the voters approving the initiative. The court emphasized that although Servcon 

as the owner of the property had rights prior to the proposition to develop the property, it 

had new rights after the proposition. The court noted, “In practical terms, it means that 

the current owner of the property is now bound by local law to follow through with that 

contract and, should a third party attempt to claim a superior right, Servcon would have 

the ability to rely on the terms of Proposition C to establish its exclusive right.” (Pala,

supra, 54 Cal.App.4th at p. 585, fn. omitted.)
26

The Pala court then discussed whether severing the definition of the “Applicant” 

as Servcon would change the proposition. It noted that Servcon was not mentioned in the 

ballot materials. It found the definition severable, because “the proposition specifically 

imposes functions, powers, and duties on the ‘Applicant,’ not Servcon.” (Pala, supra, 54 

Cal.App.4th at p. 587.) It would leave the “ ‘proposed operator of the facility’ ” or the 

“ ‘operator of the facility’ ” would have the powers and duties. (Ibid.) The Pala court 

noted in a footnote, “We note that in practical terms, our conclusion will not necessarily 

change the fact that Servcon will be responsible for performing the functions of the 

‘Applicant.’ This result derives from the fact that a private property owner ultimately has 

the right to select the entity that may apply to operate, and operate, a business on its 

property.” (Ibid. fn. 22.)

Here, the Initiative uses words including “developer” and “owner.” The Initiative 

does not name or identify Walmart. As a practical matter, as in Pala, Walmart as the 

owner and developer of the property would be responsible for the acts under the 

Initiative. However, since Walmart could sell the property, it would have no superior 

right over the subsequent owner or developer of the property. Just as in Pala, just 

striking the definition of “applicant” did not change that it would be the entity 

responsible. Walmart as an entity has no superior right under the Initiative. If it sold the 

property, or decided that it did not want to develop the property, it would have no rights 

under the Initiative superior to any other corporation or person. 

The only other significant case addressing article II, section 12 is Calfarm Ins. Co. 

v. Deukmejian (1989) 48 Cal.3d 805 (Calfarm), a challenge to Proposition 103. 
27

Proposition 103 was an initiative measure adopted by the voters on November 8, 1988, 

“making numerous fundamental changes in the regulation of automobile and other types 

of insurance.” (Id. at p. 812.) It was enacted to “ensure that ‘insurance is fair, available, 

and affordable for all Californians.’” (Id. at p. 813.) Some of the changes included 

reducing current rates and putting restrictions on raising rates. (Ibid.) One of the 

provisions stated, “Insurers are required to mail notices to policy holders informing them 

they may join a nonprofit corporation to be formed to represent their interests by persons 

appointed for this purpose by the Insurance Commissioner.” On appeal, the petitioners 

maintained that the provision requiring notification of the formation of a nonprofit 

corporation violated “the prohibition of article II, section 12 of the California 

Constitution against naming or identifying a private corporation in an initiative to 

perform any function or duty.” (Id. at p. 814.)

Initially, Calfarm provided a history of article II, section 12.2 In 1950, voters 

adopted former article IV, section 1d, which prohibited an initiative from naming an 

individual in an initiative or measure. (Calfarm, supra, 48 Cal.3d at pp. 832-833.) “The 

second provision was enacted in 1964. In that year a private corporation, the American 

Sweepstakes Corporation, financed a proposed constitutional amendment establishing a 

state lottery and designating the sponsoring corporation as administrator of the lottery. 

 

2

 The Center for Community Action and Environmental Justice filed an amicus 

curiae brief insisting that this court should uphold the trial court’s order. They argue that 

this court should adopt an interpretation of article II, section 12 that would deem a private 

corporation is “identified” within the meaning of the section even if it is only from 

sources outside the four corners of the initiative at issue. They have provided the 

legislative history of now article II, section 12.
28

The Legislature countered by putting a constitutional amendment on the same ballot 

specifying that any amendment “which names any private corporation . . . to have any 

power or duty” shall have no effect. (Former art. IV, § 1d, subd. (b).) Significantly the 

Legislature considered, but rejected, limiting this prohibition to profit-making 

corporations. [Citation.] The voters defeated the lottery, but approved the prohibition on 

amendments which name private corporation.)” (Id. at p. 833.) In 1966, the Constitution 

Revision Commission combined the two measures into a single provision. It added the 

“a prohibition against ‘identifying’ as well as ‘naming’ persons or corporations.” (Ibid.) 

The voters approved the 1966 revision, which is now article II, section 12. 

The Calfarm court found that Proposition 103 provided for the formation of a 

nonprofit corporation, and it had the sole power to send out information to consumers;

and no other corporation could perform this function. Specifically, it concluded, “The 

explicit terms of article II, section 12, demonstrate that the consumer-advocacy provision 

of Proposition 103 is invalid. The constitutional prohibition bars naming or identifying a 

private corporation to perform any function. The consumer-advocacy provision 

‘identifies’ a particular corporation—that one which is to be formed by an interim board 

of public members appointed by the Insurance Commissioner. As we explain later in this 

opinion, the corporation to be formed is a private corporation. Finally, that corporation is 

identified to perform a ‘function,’ to ‘advocate the interests of insurance consumers in 

any forum.’ [Citation.] We see no escape from the clear and explicit language of the 

state Constitution.” (Calfarm, supra, 48 Cal.3d at p. 832.) Such creation of a corporation 

violated article II, section 12. (Calfarm, at p. 835.)
29

In applying Calfarm here, the legislative history “only serves to confirm our 

reading of the plain language of the statute.” (MacIsaac v. Waste Management 

Collection and Recycling, Inc., supra, 134 Cal.App.4th at p. 1088.) Unlike the situation 

in Calfarm, here, the developer and owner of the property within the Specific Plan had 

the power to develop the property and it had the duty to obtain the proper permits and 

approvals. The Initiative did not assign that power to Walmart only. If we were to 

extend article II, section 12 as requested by Hernandez and the amicus curiae, any landuse initiative would be invalidated as one only would need to establish the company who 

intended to develop the property or owned the property, even though the Initiative itself 

makes no reference to the entity. We do not find anything in the legislative history or the 

language of the statute that article II, section 12 was intended to be this broadly 

interpreted. As such, we find that the Initiative does not violate article II, section 12.

D. ATTORNEY FEES

Hernandez, as the prevailing party on the Brown Act violation, was entitled to 

attorney fees and costs. (Govt. Code, § 54960.5.) Town and Walmart contend 

Hernandez failed to establish that $550 was a reasonable hourly attorney rate prevailing 

in the community for similar work. As such, the trial court’s award for attorney fees was 

too high. 

1. ADDITIONAL FACTUAL BACKGROUND

Hernandez filed a motion for attorney fees under Government Code section 

54960.5 and Code of Civil Procedure section 1021.5. He was seeking a total award of 

$56,298.75, which included preparation of the instant motion for attorney fees. 
30

Hernandez sought an hourly rate of $550 for his attorney Cory J. Briggs; $275 an hour 

for Mekaela M. Gladden; $225 an hour for Anthony Kim; and $125 an hour for two 

paralegals and Westlaw fees. Briggs submitted a declaration. He had been licensed to 

practice law since 1995. He indicated as a principal shareholder in his firm he regularly 

surveyed colleagues to find out the prevailing market rates for attorney fees in the 

Southern California region. He was advised by other attorneys that for an attorney with 

more than 15 years of experience in land-use issues, the average rate was between $500 

to $800. Briggs spent 40.25 hours on the case. He also declared that the rate of $550 had 

been approved in three other cases that he handled in San Diego County.

Town and Walmart filed opposition. They argued that Hernandez had failed to 

satisfy his burden of the appropriate market rate for attorney fees for San Bernardino 

County, where the matter was tried. The fees sought should be reduced because the rates 

were unreasonably inflated. Hernandez could not rely on the rates in San Diego County. 

The matter was heard on July 16, 2015. The trial court addressed the rate charged 

by Briggs. It noted “the driving issue is what I would characterize as sticker shock that 

results from Mr. Briggs’ billing rate of $550.” However, the trial court noted that this 

was complex litigation. Further, all of the attorneys submitted “top flight legal work.” 

The trial court did note it had not seen the rate charged “in this community for any kind 

of litigation” The trial court was aware that Briggs charged this same amount in all of his 

other land-use cases. Also, the trial court noted that Briggs had declared that he averaged 

his rate to $550 so he would not charge different rates in San Diego County, which 

actually could be higher, and the Inland Empire, which could be lower. 
31

The trial court noted that the fee was higher than fees charged in San Bernardino 

County. It estimated the fair rate was probably $440 an hour. However, the trial court 

had to take into account the multiplier for a contingency case to which Briggs was 

entitled, which was 1.25. Applying the multiplier, the fee would end up being the same 

amount of $550. The trial court determined it would award the rate as given but would 

not apply a multiplier. Town and Walmart argued that the rate should be reduced to $440 

or less and that no multiplier should be applied. The trial court decided it would keep the 

rate at $550 but not apply the multiplier.

Attorney fees were awarded in the amount of $45,053.75, which reduced the fees 

for preparing the motion for attorney fees and denied the Westlaw fees. 

2. ANALYSIS

“A trial court’s exercise of discretion concerning an award of attorney fees will 

not be reversed unless there is a manifest abuse of discretion. [Citation.] ‘ “The 

‘experienced trial judge is the best judge of the value of professional services rendered in 

his court, and while his judgment is of course subject to review, it will not be disturbed 

unless the appellate court is convinced that it is clearly wrong[’]—meaning that it abused 

its discretion. [Citations.]” ’ [Citation.] Accordingly, there is no question our review 

must be highly deferential to the views of the trial court.” (Nichols v. City of Taft (2007) 

155 Cal.App.4th 1233, 1239.) 

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., 

the number of hours reasonably expended multiplied by the reasonable hourly rate. 

‘California courts have consistently held that a computation of time spent on a case and 
32

the reasonable value of that time is fundamental to a determination of an appropriate 

attorneys’ fee award.’ [Citation.] The reasonable hourly rate is that prevailing in the 

community for similar work.” (PLCM Group, Ins. v. Drexler (2000) 22 Cal.4th 1084, 

1095.) “After making the lodestar calculation, the court may augment or diminish that 

amount based on a number of factors specific to the case, including the novelty and 

difficulty of the issues, the attorneys’ skill in presenting the issues, the extent to which 

the case precluded the attorneys from accepting other work, and the contingent nature of 

the work. [Citation.] ‘The purpose of such adjustment is to fix a fee at the fair market 

value for the particular action.’” (Center for Biological Diversity v. County of San 

Bernardino (2010) 188 Cal.App.4th 603, 616.)

Here, the trial court considered the prevailing rate for attorneys in San Bernardino 

County. While it determined that $550 may be high, and that the actual rate was closer to 

$440, it essentially imposed that rate by refusing to apply a multiplier for the fact it was a 

contingency case. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132-1133 [“The purpose 

of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial 

incentives for attorneys enforcing important constitutional rights”].) The trial court did 

not abuse its discretion in setting Briggs’s hourly rate of at $550 considering the entirety 

of the determination of the trial court regarding attorney fees.

E. COSTS

Walmart and Town contend the memorandum of costs was filed late and should 

not have been considered by the trial court. In the alternative, they argued the award 
33

included an improper charge for service of the letter to Town to correct the Brown Act 

violation. 

1. ADDITIONAL FACTUAL BACKGROUND

Hernandez filed his memorandum of costs on April 15, 2015. The amount 

requested was $5,470.86. As part of the costs, Hernandez was requesting a $350 fee for 

“Process server for Brown Act cure request.” 

On May 4, 2015, Town and Walmart filed a motion to strike the memorandum of 

costs, or in the alternative, to tax costs. They contested some of the courier fees and the 

fee for a process server to serve the Brown Act cure letter. They also contended that 

pursuant to Code of Civil Procedure section 1034 and California Rules of Court, rule 

3.1700(a)(1), the memorandum of costs had to be filed 15 days after the date of service of 

written notice of entry of judgment. Hernandez’s counsel sent written notice of the 

judgment on March 30, 2015. The Memorandum of Costs was filed on April 15, 2015; it 

should have been filed on April 14, 2015. A late-filed memorandum of costs is required 

to be stricken and the costs waived. Further, since Hernandez was the party who served 

the notice of entry of judgment, no additional time for mailing should be afforded. Town 

and Walmart also contended the cure letter could have been mailed or sent by email and 

did not have to be personally served. 

Hernandez filed a response that he was entitled, even as the sender of the notice of 

judgment, to the mailing period. Hernandez did not address why the memorandum of 

costs was filed one day after the time period expired. Hernandez also argued that the 

$350 fee for service of the cure letter was appropriate to ensure that Walmart and Town 
34

received the letter. Additionally, Walmart’s attorney had asked for service by courier in 

the lawsuit as opposed to mail. Emails attached to the response supported that counsel 

had requested overnight mail on oppositions and replies because they were not being 

received by regular mail. 

Town and Walmart filed a reply to the opposition that the five-day service 

extension of Code of Civil Procedure section 1013, subdivision (a), for mailing of the 

notice of judgment only applied to the party served. 

On June 25, 2015, the trial court denied the motion to strike the Memorandum of 

Costs finding that although the Memorandum was untimely filed, the defect was not 

jurisdictional and Town and Walmart had failed to show prejudice. The trial court noted 

courts “have broad discretion to allow relief from late filings when there is an absence of 

prejudice to the opposing party.” There was no prejudice shown for the one-day delay. 

The trial court did strike courier fees in the amount of $228.90, but allowed the fees for 

service of the Brown Act cure.

2. ANALYSIS

The prevailing party is entitled to costs as a matter of right. (Code of Civ. Proc., 

§ 1032, subd. (b).) California Rules of Court, rule 3.1700(a)(1) provides in relevant part:

“A prevailing party who claims costs must serve and file a memorandum of costs within 

15 days after . . . the date of service of written notice of entry of judgment or dismissal.” 

Code of Civil Procedure section 1034, subdivision (a), provides that “[p]rejudgment costs 

allowable under this chapter shall be claimed and contested in accordance with rules 

adopted by the Judicial Council.” 
35

Code of Civil Procedure section 1013, subdivision (a), provides that service by 

mail is complete at the time of deposit in a post office or mail box, “but any period of 

notice and any right or duty to do any act or make any response within any period or on a 

date certain after service of the document, which time period or date is prescribed by 

statute or rule of court, shall be extended five calendar days, upon service by mail, if the 

place of address and the place of mailing is within the State of California. . . . This 

extension applies in the absence of a specific exception provided for by this section or 

other statute or rule of court.” 

In Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc.

(2000) 85 Cal.App.4th 1042, the court considered whether Code of Civil Procedure

section 1013 extended a trial court’s time to grant a motion for new trial where notice of 

entry of judgment was served by mail. (Westrec, at p. 1047.) The Court of Appeal held 

that Code of Civil Procedure section 1013 did not extend the trial court’s time to act, 

concluding, among other things, that Code of Civil Procedure section 1013 provides an 

extension only to “the person served by mail.” (Westrec, at p. 1048.) The court 

concluded that the relevant statutory language was ambiguous, and the legislative history 

supported the conclusion that the extension of time provided by Code of Civil Procedure 

section 1013 applied only to the person being served. (Westrec, at p. 1049.)

Based on the foregoing, Hernandez as the server of the notice of entry of judgment 

was not entitled to the five-day extension to serve his memorandum of costs. 

Accordingly, the memorandum was late. The trial court here excused the late filing 

finding no prejudice to Town and Walmart. 
36

“The time provisions relating to the filing of a memorandum of costs, while not 

jurisdictional, are mandatory.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard 

Co. (1990) 223 Cal.App.3d 924, 929.) In Sanabria v. Embrey (2001) 92 Cal.App.4th

422, the court found that the memorandum of costs was untimely and that the trial court 

erred by awarding costs. (Id. at p. 426.) However, numerous other cases have held that, 

“[i]n the absence of prejudice, the trial court has broad discretion in allowing relief on 

grounds of inadvertence from a failure to timely file a cost bill.” (Pollard v. Saxe & 

Yolles Dev. Co. (1974) 12 Cal.3d 374, 381; see Wilson v. Hinkle (1977) 67 Cal.App.3d 

506, 513.)

However, in Pollard, which was relied upon in Wilson, the party seeking costs 

moved for permission to file a late memorandum of costs on the ground that counsel 

inadvertently failed to file a timely cost bill. (Pollard v. Saxe & Yolles Dev. Co., supra,

12 Cal.3d at pp. 380-381.) In Russell v. Trans Pacific Group (1993) 19 Cal.App.4th

1717, superseded on another ground by statute as stated in Lee v. Wells Fargo Bank 

(2001) 88 Cal.App.4th 1187, 1196, the court addressed the defendant’s failure to file a 

timely motion for attorney fees. It found the cost procedure requirements were 

mandatory and therefore the trial court did not have discretion to disregard 

noncompliance. (Russell, at p. 1726, 1728.) It then noted, “Nevertheless, the mandatory 

nature of the procedural requirements does not mean that the trial court is deprived of 

jurisdiction to grant relief under [Code of Civil Procedure] section 473 . . . upon a proper 

showing of mistake, inadvertence, surprise, or excusable neglect.” (Id. at p. 1728.) In 

Russell, the defendant did file a motion under Code of Civil Procedure section 473, but 
37

only argued that the failure to timely file the motion should be excused because plaintiffs 

were not prejudiced by the noncompliance. They did not address the mistake of law or 

inadvertence. (Russell, at pp. 1729-1731.) The appellate court found the trial court 

properly denied relief because, “absence of prejudice to the opposing party is not in and 

of itself sufficient to entitle a party to relief under [Code of Civil Procedure] section 473. 

Rather, the rule is that in the absence of prejudice, the trial court has broad discretion to 

allow relief on one of the statutory grounds—excusable mistake, inadvertence, neglect, or 

surprise.” (Id. at pp. 1730-1731.)

Here, despite Town and Walmart moving to strike the memorandum of costs, 

Hernandez never addressed the mistake of law or inadvertence that rendered the late 

filing excusable. The trial court never addressed such mistake, but rather concluded that 

since there was no prejudice to Town and Walmart it would ignore the time restraints of 

California Rules of Court, rule 3.1700. The trial court did not address if there was a 

mistake of law or inadvertence by Hernandez’s counsel. Based on the fact Hernandez 

never attempted to show why the memorandum of costs was filed late and there was no 

finding by the trial court, the denial of the motion to strike the memorandum of costs was 

erroneous as Hernandez failed to make a proper showing pursuant to Code of Civil 

Procedure section 473. 

DISPOSITION

The judgment is affirmed in part and reversed in part. The denial of the motion to 

strike the memorandum of costs is reversed and Hernandez shall not receive costs. 

Although we have concluded that the Initiative did not violate the California 
38

Constitution, since the decision to place the Initiative on the ballot by the Town Council 

is null and void based on the Brown Act violation, the Initiative is null and void. The 

parties shall bear their own costs on appeal. 

CERTIFIED FOR PARTIAL PUBLICATION

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.