FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M.D., a minor, by and

through her Guardian ad

Litem, Jane Doe; JANE DOE,

an individual,

Plaintiffs-Appellants/

Cross-Appellees,

 v.

NEWPORT-MESA UNIFIED

SCHOOL DISTRICT; JEFFREY

HUBBARD, an individual;

SUSAN ASTARITA, an

individual; KURT SUHR, an

Individual; CARI OTA, an

individual; JACQUE GALITSKI,

an individual,

Defendants-Appellees/

Cross-Appellants.

Nos. 14-56443

 14-56459

D.C. No. 

8:14-cv-00394-JVS-AN

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted August 5, 2016

Pasadena, California

Filed October 19, 2016

Amended November 18, 2016
2 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.

Before: Alex Kozinski and Kim McLane Wardlaw, Circuit

Judges, and Cathy Ann Bencivengo,* District Judge.

Order;

Per Curiam Opinion

SUMMARY**

Civil Rights/Attorney’s Fees

The panel reversed the district court’s denial of plaintiff’s

motion for relief from judgment under Federal Rule of Civil

Procedure 60(b)(1), and affirmed the district court’s denial of

a motion for attorney’s fees brought under the California

Public Records Act.

Plaintiffs sued their school district and its employees

allegingFirst Amendment retaliation under 42 U.S.C. § 1983,

as well as violations of the California Constitution and

California Public Records Act. Plaintiffs voluntarily

dismissed their state law claims and the district court

dismissed the First Amendment claim without prejudice, with

thirty days leave to amend. Plaintiffs failed to meet the filing

deadline and filed their Second Amended Complainttwo days

late. Plaintiffs then moved for relief from judgment under

* The Honorable Cathy AnnBencivengo, United States District Judge

for the Southern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 3

Federal Rule of Civil Procedure 60(b)(1), based on excusable

neglect.

The panel held that the district court’s decision could not

be supported by the record, and therefore the court abused its

discretion by denying plaintiffs relief from judgment. The

panel held that defendants were not prejudiced by plaintiffs’

two-day delay in filing the Second Amended Complaint, that

the length of the delay and its potential impact on the

proceedings were minimal, and that plaintiffs’ counsel simply

misunderstood a docket entry and made a calendaring error

of the type that is sometimes committed even by sophisticated

law firms.

Affirming the district court’s denial of attorney’s fees, the

panel held that plaintiffs’ California Public Record Act claim

was neither indisputably without merit nor prosecuted for an

improper motive. 

COUNSEL

Mark S. Rosen (argued), Santa Ana, California, for PlaintiffsAppellants/Cross-Appellees.

Courtney L. Hylton (argued), S. Frank Harrell, and Ruben

Escobedo III, Lynberg & Watkins, APC, Orange, California

for Defendants-Appellees/Cross-Appellants.
4 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.

ORDER

The opinion filed on October 19, 2016, and published at

2016 WL 6091565, is amended by the opinion filed

concurrentlywith this order. No future petitions for rehearing

are allowed.

OPINION

PER CURIAM:

We consider whether the district court abused its

discretion by denying (1) plaintiffs’ motion for relief from

judgment under Federal Rule of Civil Procedure 60(b)(1), and

(2) the school district’s motion for attorney’s fees under the

California Public Records Act.

FACTS

Mary Doe, a fifth-grade student, and her mother, Jane,

sued their school district and its employees because Mary

allegedly experienced retaliation after Jane complained to the

school principal about Mary’s teacher. In their First

Amended Complaint (FAC), plaintiffs asserted a First

Amendment retaliation claim under 42 U.S.C. § 1983, as well

as violations of the California Constitution and California

Public Records Act (CPRA).

Plaintiffs voluntarily dismissed the last two claims after

the school district filed a motion to dismiss. The district

court then dismissed the First Amendment retaliation claim

without prejudice for failure to state a claim but gave
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 5

plaintiffs thirty days to amend. Plaintiffs failed to meet the

filing deadline, and the school district filed a proposed

judgment of dismissal the very next day. Plaintiffs filed their

Second Amended Complaint (SAC) the following day. 

Several days later, the district court entered a final judgment;

it dismissed the FAC, citing plaintiffs’ failure to file the SAC

“within the time allowed.”

Plaintiffs moved for relief from judgment under Federal

Rule of Civil Procedure 60(b)(1) based on excusable neglect. 

Plaintiffs’ trial counsel explained that he filed the SAC two

days late because he had miscalculated the filing deadline. 

The district court’s dismissal order was originally docketed

as a minute order “in chambers.” Two days later, a notice of

clerical error was issued and the same order was re-docketed

as a separate entry. The trial counsel mistakenly believed that

the thirty-day clock began running after the clerical error was

corrected and, therefore, that the filing deadline was two days

later than it actually was. This was only his second case

using the federal court’s electronic case management system

(CM/ECF), because he primarily litigates in California

Superior Court, where he originally filed the case. 

Nevertheless, the district court found that counsel’s neglect

was “not an excuse for missing [an] unambiguous deadline,”

and denied plaintiffs relief from judgment.

Meanwhile, the school district moved for attorney’s fees

under the CPRA. The district court found that plaintiffs’

CPRA claim was not “clearlyfrivolous,” and therefore denied

the school district its fees. Cal. Gov’t Code § 6259(d).

Plaintiffs, now represented by new counsel, appeal both

the district court’s judgment of dismissal and the order

denying relief from judgment. Defendants cross-appeal a
6 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.

portion of the dismissal order and the order denying

attorney’s fees.

DISCUSSION

I

When making an “excusable neglect” determination under

Federal Rule of Civil Procedure 60(b)(1), the court must

consider “all relevant circumstances,” Pioneer Inv. Servs. Co.

v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993),

including “at least four factors: (1) the danger of prejudice to

the opposing party; (2) the length of the delay and its

potential impact on the proceedings; (3) the reason for the

delay; and (4) whether the movant acted in good faith,”

Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th

Cir. 2000) (citing Pioneer, 507 U.S. at 395). Although the

district court identified the four Pioneer factors, it denied

plaintiffs’ motion for relief from judgment after analyzing

only their reason for the late filing. The court said nothing

about the remaining three factors.

The district court may consider the Pioneer factors

without discussing how much weight it gives to each. See

Lemoge v. United States, 587 F.3d 1188, 1194 (9th Cir.

2009). But when the district court fails to discuss some of the

factors, we must determine whether the omitted factors could

reasonably support the district court’s conclusion. See

Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th

Cir. 2010); Bateman, 231 F.3d at 1224. Even giving the

district court the benefit of the doubt, we can’t see how the

balance of the Pioneer factors supports the district court’s

decision. 
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 7

First, defendants were not prejudiced by plaintiffs’ twoday delay in filing the SAC. We asked about this at oral

argument, and counsel for the school district’s only response

was that judgment had been entered. Oral Arg. at

16:28–17:37, available at https://youtu.be/rp07S0uI-EI. 

Defendants may lose a “quick but unmerited victory,” but

“we do not consider [this] prejudicial.” Ahanchian, 624 F.3d

at 1262.

Second, the length of the delay and its potential impact on

the proceedings were minimal. The delay was only for two

days; we have found far longer delays excusable under Rule

60(b)(1). See, e.g., id. (three-day delay in filing an opposition

to summary judgment); Bateman, 231 F.3d at 1223 (twelveday delay in requesting a rescission of the summary judgment

order and over a month-long delay in filing a Rule 60(b)

motion). The two-day delay would not have changed the

course of the proceedings. If anything, it was the school

district’s eagerness for a “gotcha” victory that has kept the

case from advancing on the merits.

Third, there is no evidence that plaintiffs’ trial counsel

concocted a “post-hoc rationalization . . . to secure additional

time,” Ahanchian, 624 F.3d at 1262, or otherwise acted with

bad faith. A lack of familiarity with CM/ECF may be a poor

excuse but it doesn’t show bad faith. See Lemoge, 587 F.3d

at 1197 (finding no bad faith where the “errors resulted from

negligence and carelessness, not from deviousness or

willfulness” (citation and internal quotation marks omitted)).

The question remains whether the single factor that the

district court weighed against granting relief can by itself

justify the district court’s decision. This is not a case where

counsel’s neglect is so egregious that it outweighs the
8 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.

remaining three factors. Plaintiffs’ trial counsel simply

misunderstood a docket entry and made a calendaring error

of the type that is sometimes committed even by sophisticated

law firms. See, e.g., Pincay v. Andrews, 389 F.3d 853, 855,

858–60 (9th Cir. 2004) (en banc) (affirming the district

court’s finding of excusable neglect where a sophisticated law

firm made a calendaring error based on a paralegal’s

misreading of Federal Rule of Appellate Procedure 4). 

Indeed, the court’s own clerk, who presumably deals with

CM/ECF on a daily basis, committed a filing error and had to

re-file the order two days later. If the trial counsel’s neglect

here was not excusable, it’s hard to see when neglect would

ever be excusable. 

Because the district court’s decision cannot be supported

by the record, we hold that it abused its discretion by denying

plaintiffs relief from judgment under Rule 60(b)(1). Because

we reverse the district court’s denial of relief from judgment,

we do not review the district court’s dismissal of the FAC.

II

Under the California Public Records Act, the school

district is entitled to attorney’s fees only if plaintiffs’ claim

was “clearly frivolous.” Cal. Gov’t Code § 6259(d). 

Although the term “clearly frivolous” isn’t defined in the

statute, California courts have held that an action is

“frivolous” only when it (1) “lack[s] any merit,” or (2) is

“prosecuted for an improper motive,” such as harassing or

creating delay. Bertoli v. City of Sebastopol, 182 Cal. Rptr.

3d 308, 320 (Ct. App. 2015) (internal quotation marks and

citations omitted) (adopting in the CPRA context the standard

for frivolousness announced in In re Marriage of Flaherty,

646 P.2d 179, 187 (Cal. 1982)).
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 9

Plaintiffs’ claim was not indisputably meritless. 

According to the FAC, plaintiffs requested that the school

district provide videos of Board of Education meetings, but

received only an edited version. Plaintiffs sought to obtain

the full, unedited version under the CPRA. See Cal. Gov’t

Code § 6258. Whether plaintiffs were entitled to the withheld

portions of the videos under the CPRA was an open question

that required further factfinding. Because at this motion to

dismiss stage, “no attorney could have been certain about the

outcome of the issue,” we cannot say plaintiffs’ claim was

clearly frivolous. Crews v. Willows Unified Sch. Dist.,

159 Cal. Rptr. 3d 484, 496 (Ct. App. 2013); see id. at 495–96

(holding that the plaintiff’s petition wasn’t frivolous when it

was used to secure documents that were withheld under

claims of exemption or privilege, and to challenge the format

in which the documents were produced).

Nor is there evidence that plaintiffs brought the claim for

an improper motive. The school district argues that

plaintiffs’ refusal to dismiss their CPRA claim after they

allegedly admitted to having obtained access to the full

version of the videos evinces improper motive. As an initial

matter, it’s unclear whether a CPRA claim that was not

frivolous when filed can become frivolous later. But even if

it’s possible, plaintiffs didn’t maintain the claim for very

long; plaintiffs relinquished their CPRA claim in their

opposition papers, filed only two weeks after allegedly

admitting that the videos were fully available. Given

plaintiffs’ prompt voluntary dismissal, the district court

properly found that plaintiffs acted with good faith.

Plaintiffs’ CPRA claim was neither indisputably without

merit nor prosecuted for an improper motive. Accordingly,

we affirm the district court’s denial of fees.
10 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.

* * *

The district court’s denial of relief from judgment is

REVERSED, and its denial of attorney’s fees under the

CPRA is AFFIRMED. The case is REMANDED with

instruction that the district court accept the filing of the SAC. 

The parties shall bear their own costs on appeal.