Olson v. Hornbrook Cmty. Servs. Dist.

• Decision Date: 26 March 2019
• Docket Number: C086031,C085836,C084494,C084757,C084843
• Citation: 245 Cal.Rptr.3d 236,33 Cal.App.5th 502
• Court: California Court of Appeals Court of Appeals
• Parties: Kimberly R. OLSON, Plaintiff and Appellant, v. HORNBROOK COMMUNITY SERVICES DISTRICT, Defendant and Respondent. Roger Gifford, Plaintiff and Appellant, v. Hornbrook Community Services District, Defendant and Respondent.

33 Cal.App.5th 502

245 Cal.Rptr.3d 236

Kimberly R. OLSON, Plaintiff and Appellant,

v.HORNBROOK COMMUNITY SERVICES DISTRICT, Defendant and Respondent.

Roger Gifford, Plaintiff and Appellant,

v.Hornbrook Community Services District, Defendant and Respondent.

C084494

C084843

C084757

C085836

C086031

Court of Appeal, Third District, California.

Filed March 26, 2019

Certified for Partial Publication.^*

Kimberly R. Olson, in pro. per., for Plaintiff and Appellant, Kimberly R. Olson.

Roger Gifford, in pro. per., for Plaintiff and Appellant, Roger Gifford.

Kirsher, Winston & Boston and Robert D. Winston for Defendant and Respondent.

Robie, J.

These appeals arise from five judgments of dismissal entered against plaintiffs Roger Gifford and Kimberly Olson (collectively plaintiffs) on their separately initiated litigation under the Ralph M. Brown Act¹ (the Act) against the Hornbrook Community Services District (the District) and the resulting costs and attorney fee awards to the District. They contend the District’s Board of Directors (the Board) violated the Act by failing to adequately describe several items it acted on over the course of three District meetings and for unreasonably limiting public comment. Plaintiffs seek to invalidate the Board’s resulting actions pursuant to section 54960.1, but also to obtain a declaration to determine the applicability of the Act to the Board’s actions pursuant to section 54960. The District contends that because it substantially complied with the Act, plaintiffs are barred from relief. We agree with this standard but only for causes of action under section 54960.1 and not for those under section 54960.

On the merits of plaintiffs’ claims, we agree the court erred in dismissing all but one of their complaints, and we further agree the court erred in awarding costs and attorney fees to the District in all cases.

FACTUAL AND PROCEDURAL BACKGROUND²

IAugust 2016 Agenda And Resulting Litigation

The District timely posted its agenda for its August 16, 2016, meeting. As relevant here, item 5 appeared as follows: "RE:

State Compensation Insurance Fund. Discussion, direction and possible motion to approve payment in the amount of $ 285.75 for quarterly premium due 8/25/16 for rating period 7/29/16 - 7/29/17." At the August meeting, when that item "came up for discussion, [the District’s] Secretary Patricia Slote announced that since the time the agendas for the meeting were posted, she had received additional communications from the State Compensation Insurance Fund representatives, indicating that the prior billing was being superseded by a letter (copies of which were not provided to the other Board members, or to the public), which in turn demanded additional money be paid in an amount differing from that on the agenda. No explanation as to why the amount had been changed, or any discussion about any investigation into the billing practices and/or changes was forthcoming from Slote, who instead insisted (over objections from the public) that the [District] approve the new demand for payment without any review, or other formal action by the [District]." (Fn. omitted.)

The day after the meeting, plaintiffs each submitted a cure and correct notice and cease and desist letter to the District and Slote. Receiving no response, plaintiffs initiated separate litigation on September 19, 2016, by filing nearly identical complaints alleging the District’s Board "improperly discussed and considered the letter produced by Slote at the meeting, and thereafter approved an improperly-made motion to pay the amount demanded in the letter, rather than the billing set forth in the agenda" thus violating the Act.

The District sent plaintiffs a letter purporting to comply with the meet and confer requirements of Code of Civil Procedure section 430.40. Plaintiffs both refused to communicate with the District’s counsel because the Board had not yet retained him at a meeting with his employment on the agenda. Indeed, counsel indicated that he had not yet been retained by the Board but was waiting for the District’s next meeting for approval of his representation.

The District, through its counsel, later filed a notice of inability to meet and confer, entitling it to an additional 30 days to respond to plaintiffs’ summonses. ( Code of Civ. Proc., § 430.41, subd. (a)(2).) Plaintiffs each moved to strike the District’s notices arguing counsel had not yet been retained by the Board, and he thus lacked standing to file anything in the matter. Plaintiffs further argued counsel’s efforts to meet and confer were insufficient because he did not attempt to do so in person or by telephone as the statute required. The court denied plaintiffs’ motions. Olson later moved the court to reconsider the denial of her motion to strike.

The District filed a general demurrer to each complaint arguing the description in the agenda was sufficient under the Act, which required only substantial compliance. The court agreed and sustained the demurrers without leave to amend and found both of plaintiffs’ complaints clearly frivolous and lacking in merit. It also denied Olson’s motion to reconsider her motion to strike because it was rendered moot by the dismissal of her complaint. The court awarded the District its costs and reasonable attorney fees pursuant to section 54960.5, to be determined at a later hearing.

IISeptember 2016 Agenda And Resulting Litigation

The District timely posted its agenda for the September 20, 2016, meeting. As relevant here, the consent agenda included as item 4 to "[a]pprove bills and authorize signatures on Warrant Authorization Form for" various bills listed in the agenda, not including an AT & T bill. The list also included a payment to Clint Dingman for 32.45 hours of work totaling an unspecified amount. At the September meeting, "when the consent agenda came up for discussion, [the District] Secretary Patricia Slote announced that since the time the agendas for the meeting were posted, she had received an additional bill from AT & T that she wanted to ‘add’ to the agenda as a consent item. When the item of payment of wages to [District] employee Clint Dingman came up, Secretary Slote simply filled in an amount on the blank space of the agenda without any motion, or vote, to do so. Furthermore, it was pointed out by the public at the meeting ... that the ‘timesheet’ for Clint Dingman included 3 hours of pay (at 15.00/hr) for a ‘meeting with Bob/Pat’ on ‘9/15/16’, which meeting had never been approved by any action of the [District], and indeed, no such meeting had ever been agendized at any previous meeting." (Fn. omitted.)

The day after the meeting, plaintiffs each submitted a cure and correct notice and cease and desist letter to the District and Slote. Receiving no response, plaintiffs initiated separate litigation on November 3, 2016, by filing nearly identical complaints alleging the Board "improperly discussed and considered the late AT & T bill produced by Slote at the meeting, and thereafter approved an improperly-made motion to pay the amount demanded in the AT & T bill, which was not set forth in the agenda. Additionally, the [District] failed to state the amount of payment to be made to Clint Dingman, and then at the meeting voted to approve 3 hours of additional time for employee Clint Dingman for a meeting with Secretary Slote, and President Puckett, which meeting, and payment to Dingman therefor, had never been considered or approved by the Board at any public meeting, and had also not been listed on the September 20, 2016 agenda," thus violating the Act.

The District attempted to meet and confer with plaintiffs; however, both refused to communicate with the District’s counsel as he had not been retained for the matter by the Board at a meeting. The District filed a notice of inability to meet and confer, entitling it to an additional 30 days to respond to plaintiffs’ summonses. ( Code of Civ. Proc., § 430.41, subd. (a)(2).) Plaintiffs each filed motions to strike the District’s notices arguing counsel’s efforts to meet and confer were insufficient because he did not attempt in person or by telephone as the statute required.

The District later filed a general demurrer to each complaint arguing the descriptions in the agenda regarding the AT & T bill and the payment to Dingman were sufficient under the Act. Following Olson’s opposition, the court sustained the District’s demurrer against her. The court also found Olson’s action frivolous and lacking in merit, thus allowing the District to collect attorney fees.

Unlike Olson, Gifford did not oppose the District’s demurrer but filed a first amended complaint and then a second amended complaint. The District moved to strike both as being untimely and filed without leave from the court. The District also filed a demurrer to Gifford’s second amended complaint. Gifford then moved to amend his original complaint.

In a written ruling, the court granted the District’s motions to strike Gifford’s first and second amended complaints finding both were untimely and unauthorized. The court then took judicial notice of the findings made in Olson’s related case, including that the action was lacking in merit. The court sustained the District’s demurrer to the original complaint without leave to amend. It found Gifford’s filing of the first and second amended complaints were for the purposes of frustrating the court’s process and that his action was lacking in merit. The court also allowed the District to recover its costs and reasonable attorney fees.

Following entry of judgment, the District filed a memorandum of costs and later moved for attorney fees. Gifford sought to strike the District’s memorandum of costs for the same reasons he sought to strike the District’s demurrer -- that the District’s attorney had not properly been retained by the Board nor did the District comply with Code of Civil Procedure section 430.41 when attempting to meet and confer with him. When Gifford...