F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M.D., a minor, by and throug h her Guardian ad L item, J ane Doe; J A

N E D O E , an individual, Plaintiffs-Appellants/ Cross-Appellees
,

v.

N E W P O R T -M E S A U

N I F I E D S C H O O L D I S T R

I C T ; J E F F R

E Y H U B B A R

D , an individual; S U S A N A S T A R

I T A , an individual; K

U R T S U H R , an I ndividual; C A R

I O T A , an individual; J A C Q U E G A L I T S K I , an individual, Defendants-Appellees/ Cross-Appellants

. N os. 14-56443 14-56459

D.C. No. 8:14-cv-00394-J VS-AN

OPI N I ON

A ppeal from the United States District Court for the Central District of California J ames V. Selna, District J udg e, Presiding

Arg ued and Submitted Aug ust 5, 2016 Pasadena, California

F iled October 19, 2016M.D. V

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B efore: Alex Koz inski and Kim McL ane W ardlaw, Circuit J udg es, and Cathy Ann B enciveng o, * District J udg e.

Per Curiam Opinion

SUMMARY * *

Civil Rights/Attorney’s F ees

The panel r eversed the district court’s denial of plaintiff’s motion for relief from judg ment under F ederal Rule of Civil Procedure 60(b)(1), and affirmed the district court’s d e nial o f

a motion for a ttorney ’ s fees broug ht under the California Public Records Act.

Plaintiffs sued their school district and its employ ees alleg ing F irst Amendment retaliation under 42 U.S.C. § 1983,

a s well as v iolations of the California Constitution a nd California Public Reco r ds Act. Plaintiffs voluntarily dismissed their s t a t e law claims and the district court dismissed the F irst Amendment claim without p rejudice, with thirty day s leave to a mend. Plaintiffs failed to meet the filing deadline and filed their Second Amended Complain t t wo day s late. Plaintiffs then moved f or rel i e f f ro m judg ment under F ederal Rule o f Civil Procedure 60(b)(1), based on ex cusable
neg lect.

* T h e H o n o rab le Cath y A

n n B en civ en g o , U n ited States District J u dg e f o r th e So u th ern District o f Calif o rn i a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M.D. V

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The panel h eld that the district court’s decision could not be supported by the record, and therefore the court abused its discretion by deny ing plaintiffs relief from judg ment. T h e panel held that defendants were not prejudiced by plaintiffs’ two-day d e lay in filing the Second Amended Complaint, that the leng th of the delay and its p o t e n t i al impact on the proceeding s were minimal, and that plaintiffs’ counsel simply misunderstood a docket entr y a n d made a calendaring error of the ty pe 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 f or an improper motive.

COUNSEL

Mark S. Rosen (arg

ued), Santa Ana, California, for PlaintiffsAppellants/Cross-Appellees.

Courtney L

. Hy lton ( arg ued), S. F rank Harrell, an d R u b en Escob edo I I I
, L y

nberg & W atkins, APC, Orang e, California for Defendants-Appellees/Cross-Appellants.M.D. V

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OP INION

PER CURI AM:

W e consider w h e t her the d istrict court abused its discretion by deny ing (1) plaintiffs’ motion for rel i ef from judg ment under F ederal Rule of Civil Procedure 60(b)(1), a nd (2) the school district’s motion for a t t orney ’s fees under the California Public Records Act.

F ACTS

Mary Doe, a fifth-g rade student, and her mother, J ane, sued their school district and its employ ees because Mary alleg edly ex perienced retaliation after J ane complained to the school principal about Mar y ’ s t eacher. I n their F irst Amended Complaint (F AC), plaintiffs asser t e d a F irst Amendment retaliation claim under 42 U.S.C. § 1983, as w ell

as violations of the California Constituti on and California Public Records Act (CPRA).

Plaintiffs v oluntarily dismissed the last two claims a fter the school district filed a motion to dismiss. The district
court then dismissed the F irst Ame n d m e n t retaliation claim without prejudice f

or failure to state a claim but g ave p l a i n tiffs thirty day s to amend. Plaintiffs failed to meet t h e filing deadline, and the school district filed a p r o p osed judg ment of dismissal the v ery nex t d ay

. Plaintiffs filed their Second Amended Complaint (S A C ) the following day

. Several d ay s later, the district court entered a final judg ment; it dismissed the F AC, citing p laintiffs’ failure to file the SAC “within the time allowed.”M.D. V

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Plaintiffs moved for relief from judg ment under F ederal Rule of Civil Procedure 60(b)(1) based on ex cusable n eg lect. Plaintiffs’ counsel ex plained that he filed the SAC two day s late because he h ad miscalcu lated the filing deadline. The district court’s dismissal o r d e r w as orig inally docketed as a

m i nute o rder “ in chambers.” Two day s later, a notice of clerical error was issued and the same order was re-docketed

as a separate entry

. Counsel mistakenly believed t h at the thirty -day clock beg an running after the clerical error was corrected and, therefore, that the filing deadline was two day s later than it a ctually was. This was only his second case using the federal court’s e lectronic case manag ement sy stem (CM/E C F)
, b ecause he primarily litig ates in California Superior C o u r t , where he orig inally filed the c ase. Nevertheless, the dis t r i c t c ourt found that counsel’s neg lect

was “not an ex cuse for missing [ an] unambig uous d eadline,” and denied plaintiffs relief from judg ment.

Meanwhile, the school district moved for attorney ’s fees under the CPRA. The district court f o u n d t h at plaintiffs’ CPRA claim was not “clearly frivolous,” and therefore denied the school district its fees. Cal. Gov’t Code § 6259(d).

Plaintiffs appeal b o th the district court’s judg ment o f dismissal and the order deny ing relief from judg ment. Defendants cross-appeal a p ortion of the dismissal order a nd the order deny

ing attorney ’s fees.

D ISCUSSION

I

Wh e n m a k ing an “ex c usable neg lect” de t e r m i n a t i o n u n d e r F ederal Rule of Civil Proced u re 60(b)(1), the court mustM.D. V

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consider “all relevant circumstances,” P ioneer Inv. Servs. Co.

v

. Brunswick Assoc. Ltd. P’ship
, 507 U.S. 380, 395 (1993 ), including “at least four factors: (1) the dang er of prejudice to the opposing party ; ( 2 ) t h e l e ng th of the delay and its potential impact on the p r o c e eding s; (3) the reason for the delay ; and (4) whether the movan t acted in g o od faith,” Bateman v. U.S. Postal Ser v

. , 2 3 1 F .3d 1220, 1223–24 (9th Cir. 2000) (citi n g P i oneer , 507 U.S. a t 395). Althoug h the district court identified the four Pioneer factors, it denied plaintiffs ’ m o t ion for r elief from judg ment after analy zing only their r e ason for the late filing

. T he court said nothing about the remaining

three factors.

The distr i c t court may consider the Pioneer f actors without d iscussing how much weig ht i t g ives to each. See Lemoge v. United States
, 5 8 7 F. 3 d 1188, 1194 (9th Cir. 2009). B ut when the d istrict court fails to discuss some o f the factors, we must determine whether the omitted factors could reasonably support the district c ourt’s c o n c lusion. See Ahanchian v. Xenon Pictures, I nc. , 624 F .3d 1253, 1258 (9th C i r

. 2010); Bateman
, 231 F .3d at 1224. Even g iving t h e district court the benefit of the d o u bt, we c an’t see how the balance of the Pioneer f actors supports the district court’s decision.

F irst, defendants were not prejudiced by plai n t i f fs’ twoday delay in filing the SAC. W e asked about t h i s a t oral
arg ument, and counsel for the school d istrict’s only response

was that judg ment had been entered. Oral A rg

. at 16:28–17:37, available at https://y outu.be / r p07S0uI -EI

. Defendants may lose a “ quick but unmerited victory ,” but “we do not c onsider [ this] prejudicial.” Ahanchian
, 624 F .3d at 1262.M.D. V

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Second, the leng th o f the delay and its potential impact on the proceeding s w ere minimal. The delay was only f o r two day s; we have found far long er delay s ex cusable under Rule 60(b)(1). See, e.g. , id. (three-day delay in filing an opposition to summary

judg ment); Bateman
, 231 F .3d at 1223 (twelveday delay in requesting a rescission of the summary judg ment ord e r and over a month-long delay in filing a Rule 60(b) motion). The two-day de l a y would not have chang ed the

course of the proceeding s. I f any thing
, it was the school d istrict’s eag erness for a “g otcha” victory that h as kep t t h e case from advancing

on the merits.

Third, there is no evidence that plaintiffs’ counsel concocted a “ post-hoc rationaliz ation

. . . to secure additional time,” A hanchian
, 6 24 F .3d at 1262, or o therwise acted with bad faith. A lack of familiarity with CM/ECF may be a poor

ex c u se b ut it doesn’t show bad faith. See Lemoge
, 587 F .3d
at 1 197 (finding no bad faith where the “errors resulted from
neg lig ence and carelessness, not from deviousness o r willfulness” (citation and internal quotation marks o mitted)).

Th e q u es tion remains whether the sing le factor that the district court w eig hed a g ai n st g ranting relief can by itself justify the district court’s d ecision. This is not a case where counsel’s neg lect is so eg reg ious that it outweig hs the remaining three factors. Plaintiffs ’ c ounsel simply misunderstood a docket entry and made a calend a r i n g error of the ty pe that is sometimes committed even by sophisticated law firms. See, e.g. , Pincay v. Andrews
, 389 F .3d 853, 855, 858–60 (9th Cir. 2 0 0 4 ) (en banc) (affirming the district court’s f inding o f ex cusable neg lect w here a sophisticated law firm made a calendaring error based on a paraleg a l’s misreading of F ederal R u l e of Appellate Procedure 4). I ndeed, the c ourt’s own cler k
, w h o p resumably deals withM.D. V

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CM/ECF on a daily basis, committed a filing error and had to re-file the o rder two day s later. I f c ounsel’s neg lect here was

n o t ex c usable, it’s hard to see when neg lect would ever b e

ex c u sable.

B e cause the district court’s decision cannot be supported by the record, we hold that it abused its discretion by deny ing plaintiffs relief from judg ment under Rule 60(b)(1). B ecause

we reverse the district court’s denial of r elief from judg ment, we do not review the district court’s dismissal of the F AC.

II

Under the C alifornia Public Records Act, the school district is entitled to attorney ’ s f e e s only if plaintiffs’ claim

was “clearly frivolous.” Cal. Gov’t Code § 6259(d). Althoug h the term “ clearly frivolous” isn ’ t defined in the statute, California courts have held tha t a n action is “frivolous” only when it (1) “lack[ s] a ny m e r it,” or (2) is “prosecuted for an improper motive,” su c h as harassing o r creating delay

. Bertoli v

. City of Sebastopo l
, 1 82 Cal. Rptr. 3d 308, 3 20 (Ct. App. 2015) (internal quotation marks a nd citations omitted) (adopting in the CPRA contex t the standard for frivolousness a

n nounced in In r e M

arriage of F

laherty
, 646 P.2d 179, 187 (Cal. 1982)).

Plaintiffs’ claim was not indisputably mer i tless. According to the F AC, plaintif fs r equested that the school district pro v i d e videos of B oard o f E ducation meeting s, but received o nly an edited version. Plaintiffs soug ht to obtain the full, unedited version u n d e r the CPRA. S ee Cal. G ov’t Code § 6258. Whether plaintiffs were entitled to the withheld portions of the videos under the CPRA was an open question that requi r ed further factfinding

. B ecause at this motion toM.D. V

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dismiss stag e , “no attorney could have been certain about the
outcome of the issue,” we cannot say plaintiffs’ claim w a s clearly fr i v olous. Crews v. W illows Unified Sch. Dist.
, 159 Cal. Rptr. 3d 484, 496 ( C t

. A p p

. 2013); see id. a t 495–96 (holding that the plaintiff’s petition wasn’t frivolous when it

was used to secure documents that were with held under claims of ex emption or privileg e , and to challeng e the format in which the documents were produced).

Nor is there evidence that plaintiffs b roug ht the claim for

an improper motive. T he sc h o o l district arg ues that plaintiffs’ refusal to dismiss their CPRA clai m after they alleg edly admitted to having obtained access to the full version of the videos evinces improper motive. As an initial matter, it’s unclea r whether a CPRA claim that was not frivolous when filed can become frivolous later. B ut even if i t ’ s possible, plaintiffs d idn’t maintain the claim for v e r y long ; p laintiffs relinquished their C P R A c laim in their opposition papers, filed only two weeks af t e r a lleg edly

a d m itting that the videos were f u lly available. Given plaintiffs’ prompt voluntary dismissa l
, the district court properly found that plaintiffs acted with g ood faith.

Plaintiffs’ CPRA claim was neither indisputably without merit nor prosecuted for an impro per motive. A c cording ly
, we affirm the district court’s denial of fees.

* * *

The district cou r t ’ s denial of relief from judg ment is REV E R S E D
, and its denial of attorney ’s fees under the CPRA is AF F IRMED

. The case is R E M A N DED with instruction that the district c o urt a c cept the filing of the SAC. The parties shall bear their own costs on appeal.