Page v. Miracosta Community College Dist.

• Citation: 180 Cal.App.4th 471
• Decision Date: 23 November 2009
• Docket Number: No. D054212.,D054212.
• Court: California Court of Appeals
• Parties: LEON JAMES PAGE, Appellant, v. MIRACOSTA COMMUNITY COLLEGE DISTRICT et al., Respondents.

180 Cal.App.4th 471

LEON JAMES PAGE, Appellant, v. MIRACOSTA COMMUNITY COLLEGE DISTRICT et al., Respondents.

No. D054212.

Court of Appeals of California, Fourth District, Division One.

November 23, 2009.

Ronald James Cozad for Appellant.

Jack M. Sleeth for Respondent MiraCosta Community College District.

Winet, Patrick & Weaver and Randall L. Winet for Respondent Victoria Munoz Richart.

OPINION

O'ROURKE, J.

Appellant Leon James Page appeals from a judgment in favor of respondents MiraCosta Community College District (District) and Victoria Richart, District's former president and superintendent of MiraCosta Community College (the college). Page filed a multicount petition for writ of mandate challenging the District Board of Trustees's actions in approving a settlement between Richart and District, contending in part that District violated the Ralph M. Brown Act (Gov. Code, § 54950.5 et seq.¹; the Brown Act or Act), made an unconstitutional gift (Cal. Const., art. XVI, § 6) and also illegally expended and wasted public funds (Code Civ. Proc., § 526a) by authorizing a settlement in violation of sections 53260 and 53261. The trial court sustained respondents' demurrers to one of Page's Brown Act causes of action, and on the parties' cross-motions for summary judgment/adjudication, denied Page's motion and granted summary judgment in District and Richart's favor on Page's remaining causes of action.

On appeal, Page contends (1) the trial court erred in its interpretation of sections 53260 and 53261, which limit the "maximum cash settlement" in contract termination cases; (2) for purposes of his causes of action for waste of public funds and unjust enrichment, the court misapplied the law and ignored admissible evidence raising triable issues of material fact as to whether District settled in good faith with Richart; and (3) the court erred by sustaining the demurrers to his second cause of action for violation of the Brown Act.

We conclude Page was entitled to summary adjudication of his fourth and sixth causes of action on grounds District's payments to Richart in connection with the termination of her contract exceed the cash and noncash limitations contained in sections 53260 and 53261. As a result, respondents are not entitled to summary judgment on their fifth cause of action alleging an unconstitutional gift of public funds. We further conclude the trial court should have overruled respondents' demurrers to Page's second cause of action for violation of section 54956.9. We reverse the judgment and remand the matter with directions set forth below.

FACTUAL AND PROCEDURAL BACKGROUND²

Page is a taxpayer and a resident of District, which is governed by a publicly elected seven-member board of trustees (Board). The Board acts as a unit, and trustees have no individual authority to make District policy or unilaterally take District action.

In 2004, District hired Richart as the superintendent and president of the college. She received high ratings in 2005 and 2006 performance evaluations. In July 2006, District renewed Richart's employment for an additional four-year term, from July 1, 2006, to June 20, 2010. Her employment agreement provided for an annual salary of approximately $227,200 with specified increases, health insurance, and other benefits. Her employment agreement also contained a provision mandated under section 53260 detailing the maximum cash settlement she "may" receive "if this Employment Agreement is terminated . . . ."³

In the summer of 2006, in response to a whistleblower's report, Richart initiated an investigation of alleged financial mismanagement within the college's horticulture department. She reported the matter to the district attorney, and the employee responsible for the day-to-day operations of that department was eventually charged with and pleaded guilty to fraud. At the end of November 2006, a secret vote by some college faculty members unhappy with Richart's actions resulted in a resolution of no confidence against her.

By early 2007, the investigation and Richart's role in it had become increasingly controversial, resulting in complaints by the academic senate's president and council about Richart's general leadership. The Board's president, however, issued a letter indicating the Board's support for Richart. Large numbers of college employees began attending Board meetings to complain about the report and Richart's investigation. On February 1, 2007, three trustees, Gloria Carranza, Jackie Simon and Judy Stratton, issued a "minority response" that addressed and criticized the Board's responses to various concerns raised by the academic senate, in part accusing the Board majority of ignoring those and other faculty member concerns.

Richart met the next day with Board president Charles Adams, former Board president Rudy Fernandez and District's general counsel to discuss the minority report and prepare a letter regarding the minority trustees' comments. In her February 2, 2007 letter, Richart expressed her belief that the minority response was a public negative evaluation that undermined her office and the Board's ability to work together for the good of the college, and constituted a violation of her due process rights. She expressed her belief that it might be in her best interest to publicly reveal past misconduct at the college that had occurred before her arrival. At the same time, Board president Adams wrote to the trustees stating that the minority trustees had violated Richart's due process and privacy rights, and informing them that opinions about Richart's performance had to be disclosed in closed session where it was on the agenda for evaluations. He instructed the trustees not to make any public evaluation statements about Richart.

Later that month, during a public hearing, trustee Stratton read out loud portions of Richart's February 2, 2007 letter. She spoke negatively about Richart's letter and its content, and berated her in public. Trustee Carranza also spoke about Richart, reporting information from another letter Richart wrote to the Board in October 2006 and expressing "fear and intimidation" as a result of Richart's February 2007 letter. Carranza stated she felt Richart's letter "was threatening a public official . . ." Another Board member responded that the minority trustees' actions in evaluating Richart in public and sending their response to the college's academic senate was legally improper and put the District at grave litigation risk. Following the hearing, trustee Stratton provided Richart's October 2006 and February 2007 letters to the attorney for the academic senate president.

Eventually, Richart retained Attorney Robert Ottilie to evaluate her claims against the individual trustees. District's vice-president of business and administrative services, Jim Austin, met on at least two occasions with District's claims adjuster, who indicated she believed Richart's claims presented a significant threat of litigation to District. The adjuster appointed legal counsel and agreed to mediate the dispute in front of retired Superior Court Judge David Moon. On June 8, 2007, Richart and Ottilie met with Austin, District's general counsel, and retired Judge Moon to present the facts of her claims. Based on his meetings, the discussions with Judge Moon and the claims adjuster's analysis, Austin believed there was a substantial threat of litigation and risk of liability to District if Richart were to proceed with litigation. He recommended that the matter be set for the Board's consideration at a closed session.

On June 14, 2007, Attorney Ottilie sent a letter to District's legal counsel proposing that they discuss resolution of claims Richart believed she possessed arising from the trustees' individual and collective conduct.⁴ Thereafter the Board issued a meeting agenda for June 19, 2007, announcing that a special Board meeting/closed session would be held by the Board under the following notice: "Conference with Legal Counsel—Anticipated Litigation: Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9: One case."

On June 19, 2007, the Board adjourned to a closed session, during which the Board and Richart, with the assistance of Judge Moon, reached a settlement in which Richart agreed to step down as president and serve as a consultant for the next 18 months. Judge Moon never entered the boardroom; groups of Board members in numbers less than a quorum left the room to meet with Judge Moon. The settlement agreement was drafted by District's counsel and signed by each trustee, including the minority trustees. In part the settlement and release agreement states: "A dispute has occurred between the parties regarding Richart's employment with the college. Richart through her legal counsel filed a letter to explore and/or resolve claims.... The parties wish to settle their dispute." Under the agreement, District would for 18 months pay Richart her monthly salary at her contract rate as well as "step and CPI increases," "existing expenses" of $3,150 per month, health benefits, and contributions to the state retirement system. The agreement also required District to pay Richart $43,500 in personal attorney fees "incurred to date related to her employment and potential claims against the COLLEGE," and $650,000 "for damages" upon the agreement's execution. In exchange, Richart agreed to "step down" on June 30, 2007. The agreement includes a mutual general release of all claims, as well as a Civil Code section 1542 waiver.

Thereafter, Page wrote District, maintaining the settlement violated the Brown Act and demanding that it cure the violations. District denied committing any Brown Act violation. However, it eventually noticed and placed on its agenda another hearing pertaining to Richart's pending litigation. Ottilie then provided District with a letter explaining Richart's position as to the issues and damages she...