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This case was last updated from Los Angeles County Superior Courts on 09/03/2020 at 10:43:57 (UTC).

CITY OF COMMERCE, ET AL. VS CENTRAL BASIN MUNICIPAL WATER DISTRICT, A SPECIAL DISTRICT, ET AL.

Case Summary

On 03/25/2020 CITY OF COMMERCE filed an Other - Other Judicial Review lawsuit against CENTRAL BASIN MUNICIPAL WATER DISTRICT, A SPECIAL DISTRICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and JAMES C. CHALFANT. The case status is Not Classified By Court.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1180

  • Filing Date:

    03/25/2020

  • Case Status:

    Not Classified By Court

  • Case Type:

    Other - Other Judicial Review

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA JESSNER

JAMES C. CHALFANT

 

Party Details

Petitioners

SOUTH MONTEBELLO IRRIGATION DISTRICT

CITY OF SIGNAL HILL

WALNUT PARK MUTUAL WATER CO.

MONTEBELLO LAND AND WATER COMPANY

CITY OF COMMERCE

TRACT 349 MUTUAL WATER COMPANY

BELLFLOWER-SOMERSET MUTUAL WATER COMPANY

CITY OF LAKEWOOD

CITY OF WHITTIER

CITY OF PARAMOUNT

PICO WATER DISTRICT

LA HABRA HEIGHTS COUNTY WATER DISTRICT

CITY OF DOWNEY

Respondents

CENTRAL BASIN MUNICIPAL WATER DISTRICT A SPECIAL DISTRICT

ARTURO CHACON INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE BOARD OF DIRECTORS OF CENTRAL BASIN MUNICIPAL WATER DISTRICT

LETICIA VASQUEZ INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE BOARD OF DIRECTORS OF CENTRAL BASIN MUNICIPAL WATER DISTRICT

MARTHA CAMACHO-RODRIGUEZ INDIVIDUALLY AND IN HER CAPACITY AS A MEMBER OF THE BOARD OF DIRECTORS OF CENTRAL BASIN MUNICIPAL WATER DISTRICT

PHILLIP HAWKINS INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE BOARD OF DIRECTORS OF CENTRAL BASIN MUNICIPAL WATER DISTRICT

BOARD OF DIRECTORS OF CENTRAL BASIN MUNICIPAL WATER DISTRICT

CARLOS PENILLA INDIVIDUALLY AND AS THE PURPORTED INTERIM GENERAL MANAGER OF THE CENTRAL BASIN MUNICIPAL WATER DISTRICT

1 More Parties Available

Attorney/Law Firm Details

Petitioner Attorney

AILIN JUNE S.

Respondent Attorneys

WILLOUGHBY ANTHONY W. II

BAKER ROBERT C.

 

Court Documents

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

9/1/2020: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

Notice of Ruling

7/24/2020: Notice of Ruling

Motion for Reconsideration

8/3/2020: Motion for Reconsideration

Opposition - OPPOSITION TO RESPONDENT LETICIA VASQUEZS NOTICE OF MOTION AND MOTION FOR RECONSIDERATION

8/19/2020: Opposition - OPPOSITION TO RESPONDENT LETICIA VASQUEZS NOTICE OF MOTION AND MOTION FOR RECONSIDERATION

Substitution of Attorney

8/25/2020: Substitution of Attorney

Order - ORDER - DECISION ON PETITION FOR WRIT OF MANDATE: GRANTED IN LARGE PART

7/23/2020: Order - ORDER - DECISION ON PETITION FOR WRIT OF MANDATE: GRANTED IN LARGE PART

Reply - REPLY BRIEF

7/8/2020: Reply - REPLY BRIEF

Objection - OBJECTION TO THE BRIEF FILED BY PETITIONER

6/18/2020: Objection - OBJECTION TO THE BRIEF FILED BY PETITIONER

Exhibit List

6/18/2020: Exhibit List

Proof of Service by Substituted Service

5/13/2020: Proof of Service by Substituted Service

Exhibit List

4/9/2020: Exhibit List

Opposition - OPPOSITION TO CENTRAL BASIN WATER DISTRICT'S EX PARTE APPLICATION FOR DECLARATORY RELIEF AND JUDICIAL DETERMINATION

4/9/2020: Opposition - OPPOSITION TO CENTRAL BASIN WATER DISTRICT'S EX PARTE APPLICATION FOR DECLARATORY RELIEF AND JUDICIAL DETERMINATION

Declaration - DECLARATION OF JOHN OSKOUI IN SUPPORT OF PETITIONERS' OPPOSITION TO CENTRAL BASIN WATER DISTRICT'S EX PARTE APPLICATION FOR DECLARATORY RELIEF AND JUDICIAL DETERMINATION

4/9/2020: Declaration - DECLARATION OF JOHN OSKOUI IN SUPPORT OF PETITIONERS' OPPOSITION TO CENTRAL BASIN WATER DISTRICT'S EX PARTE APPLICATION FOR DECLARATORY RELIEF AND JUDICIAL DETERMINATION

Amended Complaint - FIRST AMENDED PETITION FOR WRIT OF MANDATE

4/7/2020: Amended Complaint - FIRST AMENDED PETITION FOR WRIT OF MANDATE

Summons - SUMMONS ON PETITION

4/7/2020: Summons - SUMMONS ON PETITION

Proof of Personal Service

4/2/2020: Proof of Personal Service

Proof of Personal Service

4/3/2020: Proof of Personal Service

Civil Case Cover Sheet

3/25/2020: Civil Case Cover Sheet

63 More Documents Available

 

Docket Entries

  • 09/01/2020
  • DocketNotice (OF ENTRY OF JUDGMENT OR ORDER); Filed by City of Commerce (Petitioner); City of Lakewood (Petitioner); City of Paramount (Petitioner) et al.

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  • 08/27/2020
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Order to Show Cause Re: (Judgment) - Held

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  • 08/27/2020
  • Docketat 09:30 AM in Department 85, James C. Chalfant, Presiding; Hearing on Motion for Reconsideration - Held - Motion Denied

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  • 08/27/2020
  • DocketMinute Order ((Order to Show Cause Re: Judgment; Hearing on Motion for Recon...)); Filed by Clerk

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  • 08/27/2020
  • DocketOrder (-Decision on motion for reconsideration: denied); Filed by Clerk

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  • 08/27/2020
  • DocketJudgment (GRANTING IN PART AND DENYING IN PART WRIT OF MANDATE); Filed by City of Commerce (Petitioner); City of Lakewood (Petitioner); City of Paramount (Petitioner) et al.

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  • 08/27/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Judgment; Hearing on Motion for Recon...) of 08/27/2020, Judgment); Filed by Clerk

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  • 08/25/2020
  • DocketSubstitution of Attorney; Filed by Central Basin Municipal Water District, a special district (Respondent)

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  • 08/21/2020
  • DocketStatus Report; Filed by Board of Directors of Central Basin Municipal Water District (Respondent)

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  • 08/20/2020
  • DocketNotice of Ruling; Filed by City of Commerce (Petitioner)

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58 More Docket Entries
  • 04/03/2020
  • DocketProof of Service by Substituted Service; Filed by City of Commerce (Petitioner)

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  • 04/03/2020
  • DocketProof of Personal Service; Filed by City of Commerce (Petitioner)

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  • 04/03/2020
  • DocketProof of Service by Substituted Service; Filed by City of Commerce (Petitioner)

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  • 04/02/2020
  • DocketProof of Personal Service; Filed by City of Commerce (Petitioner)

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  • 04/02/2020
  • DocketProof of Personal Service; Filed by City of Commerce (Petitioner)

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  • 03/26/2020
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 03/25/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 03/25/2020
  • DocketCivil Case Cover Sheet; Filed by City of Commerce (Petitioner); City of Lakewood (Petitioner); City of Paramount (Petitioner) et al.

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  • 03/25/2020
  • DocketPetition (Petition for Writ of Mandate); Filed by City of Commerce (Petitioner); City of Lakewood (Petitioner); City of Paramount (Petitioner) et al.

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  • 03/25/2020
  • DocketSummons (on Petition); Filed by City of Commerce (Petitioner); City of Lakewood (Petitioner); City of Paramount (Petitioner) et al.

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Tentative Rulings

Case Number: 20STCP01180    Hearing Date: October 01, 2020    Dept: 85

City of Commerce, et al. v. Central Basin Municipal Water District, et al., 20STCP01180

Tentative decision on decision on motion for attorneys’ fees: granted

Petitioners City of Downey, City of Lakewood, City of Paramount, City of Santa Fe Springs, City of Signal Hill, City of Whittier, La Habra Heights County Water District, Pico Water District, South Montebello Irrigation District, Bellflower-Somerset Mutual Water Company, Montebello Land and Water Company, Tract 349, Mutual Water Company, and Walnut Park Mutual Water Company move for an award of attorneys’ fees against Respondent Central Basin Municipal Water District.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on March 25, 2020. The operative pleading is the First Amended Petition (“FAP”), filed on April 7, 2020. The verified FAP alleges in pertinent part as follows.

The Central Basin Municipal Water District (“District”) is a special district that was formed to act as a water wholesaler to water providers in southeast Los Angeles County that depend on water from the Metropolitan Water District. The District has a history of management and financial problems that have been so severe that the Legislature directed the State Controller to audit the District. That audit lead to legislation directed at implementing the recommendations that came out of the State Controller’s audit.

The management of the District is once again dysfunctional, with issues stemming from a pattern of conduct by a group of four Board members who ignore and act contrary to statutes and the District’s Administrative Code regarding the annual reorganization and appointment of officers of the Board, what constitutes a quorum for a meeting, the number of affirmative votes of members of the Board that are required for the Board to take action, as well as a disregard of protocol for Directors’ access to information and contacts with District staff.

Beginning in December 2019, the Board began to disregard the statutory provisions and Administrative Code provisions in ways that have caused the District to return to the level of dysfunction that prompted the Legislature to request that the State Auditor perform the audit.

As a result of Board’s conduct and failure, the following consequences have accrued, some on information and belief: (a) the District’s credit rating has been downgraded and some of the District’s obligations to vendors have been referred to collection agencies due to non-payment; (b) the District’s liability insurance expired on March 31, 2020; the District’s membership in a joint powers authority that provided protection from liability has been terminated; (c) the District has become uninsurable from other sources; (d) employees of the District have been harassed and intimidated by Board members, particularly Directors Vasquez and Camacho-Rodriguez; (e) Board oversight of routine financial transactions by approval of warrant registers has been abandoned; the District’s budget process for the 2020-21 fiscal year has been delayed; (f) the Public Integrity Division of the District Attorneys’ office has written a letter to the Board demanding it cure Brown Act violations, also noting the failure to approve the appointment of a new general counsel by the required vote of five members of the Board; (g) the Metropolitan Water District of Southern California (“MWD”) has rejected the Board’s appointments to MWD’s board of directors on the grounds the appointments were not approved by the required vote of five members of the Board; and (h) the District’s Finance Director appeared at a public meeting of the Los Angeles County (“County”) Board of Supervisors and expressed his fear that he would be in violation of the law if he issued checks on behalf of the District for expenses that had not been properly authorized by the Board.

The Board’s actions in violating statutory provisions and its Administrative Code include: (1) improperly attempting to terminate the contract of then-general manager Kevin Hunt without a quorum; (2) improperly undertaking its 2020 annual reorganization without a quorum; (3) improperly terminating the District’s general counsel and appointing a new general counsel; (4) improperly appointing General Manager Penilla; and (5) failing to complete the process of filling a Board vacancy.

2. Course of Proceedings

On April 10, 2020, the court denied Petitioners’ ex parte application for declaratory relief and judicial determination.

On June 1, 2020, Petitioners filed a Request for Dismissal for Petitioner City of Commerce only. The court clerk entered the dismissal the same day.

On July 23, 2020, the court granted in large part Petitioners’ Petition for writ of mandate. Petitioners sought to compel the Board to (a) recognize that a quorum of the Board is five members, (b) recognize that any action taken by the Board requires the affirmative vote of five members, (c) adjourn any Board meeting when the number of directors present is less than five, (d) require the affirmative vote of five members of the Board to approve any action, (e) not represent any vote of the Board taken with fewer than a quorum of five members present, or approved by fewer than five members, to be the action of the Board, (f) terminate the agreement with Penilla as interim general manager, (g) solicit proposals for and appoint a new general manager, (h) terminate the agreement with the Willoughby Firm as general counsel, (i) solicit proposals for and appoint a new general counsel, and (j) set aside naming Leticia Vasquez (“Vasquez”) as the Board’s President. The court issued mandamus as to items (a)-(f) and (h), but not (g), (i), and (j).

On August 27, 2020, the court denied Respondent Vasquez’s motion for reconsideration of its July 23, 2020 decision.

B. Applicable Law

a. Government Code[2] Section 54960.5

A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 54960, 54960.1, or 54960.2 where it is found that a legislative body of the local agency has violated the Brown Act.

An award for attorneys’ fees under the Brown Act is discretionary, not mandatory, and is entrusted to the sound discretion of the trial court. Frazer v. Dixon Unified School Dist., (“Frazer”) (1993) 18 Cal.App.4th 781, 800. In exercising its discretion as to whether to award fees under this provision, the trial court should consider among other matters the necessity for the lawsuit, lack of injury to the public, the likelihood the problem would have been solved by other means and the likelihood of recurrence of the unlawful act in the absence of the lawsuit. Bell v. Vista Unified School Dist., (“Bell”) (2000) 82 Cal.App.4th 672, 686. The trial court has the discretion to deny successful Brown Act plaintiffs their attorneys’ fees, but only if the defendant shows that special circumstances exist that would make such an award unjust. Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, (“Los Angeles Times”) (2003) 112 Cal.App.4th 1313, 1327.

b. CCP Section 1021.5

CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.

The courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorneys’ fees need not prevail on all claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. A party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–633.

The “significant benefit” necessary for a section 1021.5 fee award need not represent a concrete gain; in some cases a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939; Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.

The party seeking attorneys’ fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although case law refers to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The financial burden question is whether advancement of the public interest was merely coincidental to attainment of the party’s personal goals. Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181. The party seeking attorneys’ fees must show that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.

C. Statement of Facts

1. Petitioners’ Evidence

On August 27, 2020, the court entered its judgment granting Petitioners’ Petition for Writ of Mandate in large part. Ailin Decl., ¶3, Ex. 1. Petitioners’ counsel, Aleshire & Wynder, charged for the work performed in this case on an hourly rate basis. Ailin Decl., ¶4. As is prevalent in this practice, Petitioners’ counsel charges its municipal clients a lower hourly fee rate than would be charged to most private sector clients. Id. The hourly rates charged to Petitioners for this action are as follows: $270 for partner attorney services, $235 for associate attorney services, and $150 for paralegal services. Ailin Decl., ¶5. The hourly rates charged to Petitioners for this litigation are reasonable and consistent with, if not lower than, the prevailing rates in the Southern California legal community for similar public-sector work. Id.

Petitioners’ counsel began work on this matter in February 2020, but counsel is only seeking fees for the hours spent in March through July. Petitioners’ counsel has excluded hours for work not directly related to litigation, work related to non-litigation strategies for obtaining the District’s compliance with the law and prudent management principles, work related to an application for a temporary restraining order that was never filed, and work performed by an attorney who left the firm that was later undertaken by another attorney who duplicated some of the first attorney’s effort. Ailin Decl., ¶6, Ex. 2.

The hourly rates of the persons who worked on this case are as follows: June S. Ailin (“Ailin”) / $270 per hour; David J. Aleshire (“Aleshire”) / $270 per hour; Christine M. Carson (“Carson”) / $270 per hour; Jeffrey D. Harada (“Harada”) / $235 per hour; Jamie L. Traxler (“Traxler”) / $235 per hour; Robin K. Moore (“Moore”), Paralegal / $150 per hour; Nelly Y. Pineda (“Pineda”) / $150 per hour. Ailin Decl., ¶¶ 6a-h.

Petitioners seek to recover professional fees of $59,103.50 in the instant motion. Ailin Decl., ¶7, Ex. 2. The total costs incurred are $3,187.65. Ailin Decl., ¶8, Ex. 3. Petitioners anticipate a total of 20 hours of attorney time to prepare a reply to the District’s opposition and appear telephonically at the hearing on the motion. Ailin Decl., ¶9.

2. Reply Evidence

Petitioners’ counsel spent three hours preparing the reply at an hourly rate of $270 per hours. Ailin Reply Decl., ¶2. Petitioners’ counsel anticipates spending an additional three hours preparing for and participating in the hearing on the motion. Ailin Reply Decl., ¶2. Petitioners’ counsel will bill $1,620 for these additional six hours, and seeks $60,723.50 ($59,103.50, plus $1,620.00) in total fees. Ailin Reply Decl., ¶¶ 2-3.

D. Analysis

Petitioners seek an award of $60,723.50 in attorneys’ fees and $3,187.65 in costs pursuant to section 54960.5 of the Brown Act and section 1021.5. Ailin Decl., Exs. 2, 3; Ailin Reply Decl. ¶3. Petitioners do not break out the Brown Act fees from the section 1021.5 fees. The District opposes.

1. Entitlement to Fees

a. Brown Act

As set forth ante, an award for attorneys’ fees under the Brown Act is discretionary, not mandatory. Frazer, supra, 18 Cal.App.4th at 800. In exercising its discretion, the trial court should consider among other matters the necessity for the lawsuit, lack of injury to the public, the likelihood the problem would have been solved by other means, and the likelihood of recurrence of the unlawful act in the absence of the lawsuit. Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th at 686. The trial court has the discretion to deny an award of attorneys’ fees to a successful Brown Act plaintiff, but only if the defendant shows that special circumstances exist that would make such an award unjust. Los Angeles Times, supra, 112 Cal.App.4th at 1327.

Petitioners argue they are entitled to their fees pursuant to the Brown Act because they brought their action in part pursuant to section 54960.1 to address violations of sections 54956, 54954.2, 54953, and 54954.3. Mot. at 10. The Board violated the Brown Act when its February 6, 2020 special meeting to authorize retention of the Willoughby Firm as general counsel was not properly noticed as required by section 54956(a) and (c) because notice of the special meeting was not posted at least 24 hours prior to the special meeting and was not posted on the District’s website. Ailin Decl., Ex. 1, p. 12. The Board also violated the Brown Act at its February 14, 2020 meeting when it approved a contract with an interim general manager because there was no evidence that the item was presented to the public for comment as required by section 54954.3(a). Ailin Decl., Ex. 1, p.12-13.

The District does not dispute that it violated the Brown Act, and contends that an award of fees is justified only in cases where there are actual injuries, such as in Bell, supra, 82 Cal.App.4th 672 (plaintiff was terminated in a closed door meeting without giving him 24-hour written notice and advising him of his right to have a public hearing) and Galbiso v. Orosi Public Utility District, (2008) 167 Cal.App.4th 1063, 1081-83 (in a dispute over sewer assessments, utility district violated Brown Act by disallowing plaintiff from speaking at a meeting and by failing to make the required disclosures before going into closed session). Opp. at 3. The District characterizes the Board’s violations as technicalities that do not warrant an award of attorneys’ fees because the court made no findings that a lawsuit was necessary or that there was injury to any member of the public. Opp. at 2-3. The court noted that the majority, if not all, of the disputes regarding governance of the Board were based on the members’ disagreement as to what constitutes a quorum. Opp. at 2-3.

The court agrees that this case was driven primarily by the issues of quorum and the requirement that five members of the Board approve any action. These quorum and minimum vote to approve issues included the Board’s February 14, 2020 approval of a contract with the interim general manager and its February 6, 2020 authorization of a contract with the Willoughby Firm as general counsel. Ailin Decl., Ex. 1, pp. 12-13. That is, the Board violated those voting issues at the two meetings as well as violating the Brown Act.

The District also is correct that the court made no findings that the lawsuit was necessary or that any member of the public suffered injury from the Brown Act violations. Of course, such findings were not necessary in deciding the case’s merits and can be made now. The District is correct that no specific harm was done by the Brown Act violations. However, given the disarray at the Board, the District is wrong in suggesting that the Brown Act violations could have been solved by any other means besides the lawsuit and the likelihood of recurrence of the unlawful act in the absence of the lawsuit also is high. See Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th at 686.

In any event, as Petitioners note (Reply at 2-3), general harm to the public suffices for an award of attorneys’ fees. The purpose of the Brown Act is to ensure the public’s awareness of and ability to remain informed of the actions and deliberations of public agencies. §54950. The District’s infringement of this right in failing to provide proper notice and an opportunity for public comment is sufficient to show injury to the public. A denial of fees to a successful Brown Act plaintiff is only justified with a showing that special circumstances exist that would make an award unjust. Los Angeles Times, supra, 112 Cal.App.4th at 1327. The District has not shown a special circumstance justifying denial of fees.

Petitioners have demonstrated their entitlement to an award of attorneys’ fees pursuant to section 54960.5.

b. CCP Section 1021.5

(i) Successful Party

Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. supra, 34 Cal.4th at 565. The party seeking attorneys’ fees need not prevail on all alleged claims to qualify for an award. Harbor v. Deukmejian, supra, 43 Cal.3d at 1103. A party is successful under section 1021.5 if the party succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P., supra, 43 Cal.3d at 1292. Simply prevailing on an argument does not make a party successful within the meaning of section 1021.5, even if it results in a published opinion that enforces a public right, if the party does not achieve their strategic objective. See Ebbetts Pass Forest Watch v. Dep't of Forestry & Fire Prot., (2010) 187 Cal.App.4th 376.

It is undisputed that Petitioners are the successful party within the meaning of section 1021.5.

(ii) Important Right Affecting the Public Interest

Generally, “a right need not be constitutional in nature to justify the application of the private attorney general doctrine.” Woodland Hills, supra, 23 Cal.3d at 935. Nor must the important right be confined to a particular area of law. Ibid. At the same time, the public always has a significant interest in seeing that laws are enforced and always derives some benefit when illegal private or public conduct is rectified. Flannery, supra, 61 Cal.App.4th at 635. The Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. Ibid. The court should realistically assess the significance of the right in relationship to the achievement of fundamental legislative goals. Woodland Hills, supra, 23 Cal.3d at 936; see also Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.

Petitioners assert that they enforced an important right affecting the public interest by maintaining the public’s right under the Brown Act to participate in public proceedings with adequate notice and by bringing the Board into compliance with Water Code section 71266 by compelling the District to fill a vacant Board seat and Water Code section 71274 regarding the quorum and required number of votes for Board action. Mot. at 12; Reply at 4.

Petitioners are correct. As Petitioners point out, the District has been in disarray and the Legislature directed the State Controller to audit it. Ex. 1, p. 5. Petitioners clearly enforced an important public right by bringing the Board into compliance with the Water Code by compelling it to file a vacant Board seat and adhere to the required number of members for Board quorum and action. These requirements are critical to the Board’s lawful action and consequently are important rights affecting the public interest. The public right to participation in public proceedings under the Brown Act also is an important right affecting the public interest.

The District argues that Petitioners merely obtained relief setting the size of the Board and identifying the size of a quorum, neither of which implicate the Brown Act. Opp. at 3. The District ignores the fact that it has been dysfunctional and that the public has a right that it be compelled to adhere to legal requirements for Board action, including the Water Code and the Brown Act.

Petitioners enforced an important right affecting the public interest.

(iii) Significant Benefit Conferred on the Public or a Large Class of Persons

The significant benefit necessary for a section 1021.5 fee award need not represent a concrete gain. In some cases, a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills, supra, 23 Cal.3d at 939. Moreover, the extent of the public benefit need not be great to justify an attorneys’ fee award. See, e.g., Protect Our Water v. County of Merced, supra, 130 Cal.App.4th at 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.

The section 1021.5 factors are interrelated; the more fundamental and important the right vindicated, the lower the showing required for the element that a large class of persons benefit. See Press v. Lucky Stores, Inc., (1983) 34 Cal.3d 311, 319. The converse is also true. The less fundamental and important the right vindicated, the higher the showing required for a significant benefit to a large class of persons.

Petitioners contend that they conferred a significant benefit on a large class of persons because their action resulted in a determination of what constitutes a proper quorum and required vote for Board action, which is essential to ensuring that the District can carry out its operations and functions in accordance with the law, so that it may properly serve the public and its member water purveyors. Mot. at 13; Reply at 4. Petitioners note that the District supplies water to 40 public and private water providers, mutual water companies, investor-owned utilities and private companies, which in turn serve 1.6 million people from 24 cities and unincorporated areas in southeast Los Angeles County, thereby meeting the requirement for a large class of persons. Mot. at 13; Reply at 4.

The District argues that the mere fact that the District supplies water to a large number of people does not mean that changing the size of the Board automatically confers a significant public benefit. Opp. at 4. While this is true, there is no question that mandamus compelling the Board to fill a vacant seat and take action only when it has a proper quorum and the requisite affirmative votes is a significant public benefit that will go a long way towards the Board’s compliance with the law and proper functioning. The public always benefits when an agency is compelled to comply with the law and an order compelling compliance does not always in a significant benefit. In this case, it does. Similarly, the public always benefits from a cured Brown Act violation, but the benefit is not always significant. In this case, requiring the Board to follow the Brown Act is a significant public benefit.

Petitioners have shown that they conferred a significant benefit on the public.

(iv) Necessity and Financial Burden of Private Enforcement

“The necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such to make the award appropriate.” §1021.5. In determining the financial burden on the petitioner, courts have focused not only on the costs of the litigation but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield.” In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1215 (internal quotations omitted) (quoting Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1348). The party seeking attorneys’ fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941.

This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348. The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations. Id.; see Woodland Hills, supra, 23 Cal.3d at 941. The financial burden of private enforcement is met when the cost of the claimant’s legal victory transcends his personal interest. Woodland Hills, supra, 23 Cal.3d at 941.

Petitioners note that the lawsuit was made by public entities against another public entity, thereby demonstrating the necessity of enforcement. Petitioners assert that they have not benefitted financially from the action and any benefit inures to the public as well as Petitioners, thereby demonstrating the financial burden of enforcement. Mot. at 14. The District does not dispute that Petitioners have met this prong.

Petitioners have shown the necessity and the financial burden of enforcement.

(v) Conclusion

Petitioners have demonstrated entitlement to their fees and costs pursuant to both section 54960.5 and section 1021.5.

2. Reasonableness

The court employs the “lodestar” analysis when looking to determine the “reasonableness” of an attorneys’ fee award. The lodestar figure is calculated by multiplying the number of hours reasonably spent by the reasonable market billing rate. Serrano v. Priest, (1977) 20 Cal.3d 25, 48. Petitioners’ claimed costs are supported by a memorandum of costs, which the District does not object to or dispute. Ailin Decl., Ex. 3. Petitioners have shown that their claimed costs are reasonable. With the exception of apportionment, the District does not dispute the reasonableness of Petitioners’ legal fees.

3. Apportionment

A reduced fee award is appropriate when a claimant achieves only limited success. Soklow v. County of Mateo, (1989) 213 Cal.App.3d 231, 249. Apportionment of attorneys’ fees is not required when the claims for relief are so intertwined that it would be impracticable to separate the attorneys’ time into compensable and non-compensable units. Akins v. Enterprise Rent-A-Car Co. of San Francisco, (2000) 79 Cal.App.4th 1127, 1133.

An award of attorneys’ fees under the Brown Act normally requires apportionment from other claims. See Bell, supra, 82 Cal.App.4th at 688. In this case, however, Petitioners are entitled to fees under both the Brown Act and section 1021.5. There is no need to apportion Petitioners’ Brown Act success from their section 1021.5 fee award.

The District contends that there should be a 23.5% reduction for Petitioner’s limited success. The District notes that Petitioners were unsuccessful in their claim that Vasquez was not properly chosen as Board president. Opp. at 4-6.

Petitioners argue that California law disfavors fee reductions for partial success where the claims and issues are interrelated. Mot. at 15-16. Petitioners also assert that the District’s argument incorrectly assumes that equal effort and time was expended on each item of relief. In reality, the majority of the time was spent on issues in which Petitioners were ultimately successful. Reply at 5.

The District acknowledges that Petitioners prevailed on seven of ten issues and 13 out of 17 items of relief, which cannot be considered a “limited success.” Petitioners also persuasively argue that their claims are interrelated to the point that apportionment is impracticable. Mot. at 15-16. All of its causes of action are related to the District’s failure to comply with the Brown Act, Water Code, and its own Administrative Code. The District points to no portion of Petitioners’ bills which could be separated for their lack of success on the Board president issue.

The District has not shown that apportionment is justified.

E. Conclusion

Petitioners’ have shown entitlement an award of attorneys’ fees and costs pursuant to section 54960.5 and CCP section 1021.5. The reasonableness of their fees is not disputed and apportionment is not required. Petitioners are awarded $60,723.50 in attorneys’ fees.


[1] The District failed to lodge a courtesy copy of its opposition, and Petitioners failed to lodge a courtesy copy of their reply, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Both counsel are admonished to provide courtesy copies in all future filings.

[2] All further statutory references are to the Government Code unless otherwise stated.

Case Number: 20STCP01180    Hearing Date: August 27, 2020    Dept: 85

City of Commerce, et al. v. Central Basin Municipal Water District, et al., 20STCP01180

Tentative decision on motion for reconsideration: denied

Respondent Leticia Vasquez (“Vasquez") applies for a motion for reconsideration of the court’s July 23, 2020 ruling granting in part Petitioners’ petition for writ of mandate.

The court has read and considered the moving papers and opposition (no reply was permitted), and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on March 25, 2020. The operative pleading is the First Amended Petition (“FAP”), filed on April 7, 2020. The verified FAP alleges in pertinent part as follows.

The Central Basin Municipal Water District (“District”) is a special district that was formed to act as a water wholesaler to water providers in southeast Los Angeles County that depend on water from the Metropolitan Water District. The District has a history of management and financial problems that have been so severe that the Legislature directed the State Controller to audit the District. That audit lead to legislation directed at implementing the recommendations that came out of the State Controller’s audit.

The management of the District is once again dysfunctional, with issues stemming from a pattern of conduct by a group of four Board members who ignore and act contrary to statutes and the District’s Administrative Code regarding the annual reorganization and appointment of officers of the Board, what constitutes a quorum for a meeting, the number of affirmative votes of members of the Board that are required for the Board to take action, as well as a disregard of protocol for Directors’ access to information and contacts with District staff.

Beginning in December 2019, the Board began to disregard the statutory provisions and Administrative Code provisions in ways that have caused the District to return to the level of dysfunction that prompted the Legislature to request that the State Auditor perform the audit.

As a result of Board’s conduct and failure, the following consequences have accrued, some on information and belief: (a) the District’s credit rating has been downgraded and some of the District’s obligations to vendors have been referred to collection agencies due to non-payment; (b) the District’s liability insurance expired on March 31, 2020; the District’s membership in a joint powers authority that provided protection from liability has been terminated; (c) the District has become uninsurable from other sources; (d) employees of the District have been harassed and intimidated by Board members, particularly Directors Vasquez and Camacho-Rodriguez; (e) Board oversight of routine financial transactions by approval of warrant registers has been abandoned; the District’s budget process for the 2020-21 fiscal year has been delayed; (f) the Public Integrity Division of the District Attorney’s office has written a letter to the Board demanding it cure Brown Act violations, also noting the failure to approve the appointment of a new general counsel by the required vote of five members of the Board; (g) the Metropolitan Water District of Southern California (“MWD”) has rejected the Board’s appointments to MWD’s board of directors on the grounds the appointments were not approved by the required vote of five members of the Board; and (h) the District’s Finance Director appeared at a public meeting of the Los Angeles County (“County”) Board of Supervisors and expressed his fear that he would be in violation of the law if he issued checks on behalf of the District for expenses that had not been properly authorized by the Board.

The Board’s actions in violating statutory provisions and its Administrative Code include: (1) improperly attempting to terminate the contract of then-general manager Kevin Hunt without a quorum; (2) improperly undertaking its 2020 annual reorganization without a quorum; (3) improperly terminating the District’s general counsel and appointing a new general counsel; (4) improperly appointing General Manager Penilla; and (5) failing to complete the process of filling a Board vacancy.

2. Course of Proceedings

On April 10, 2020, the court denied Petitioners’ ex parte application for declaratory relief and judicial determination.

On June 1, 2020, Petitioners filed a Request for Dismissal for Petitioner City of Commerce only. The court clerk entered the dismissal the same day.

On July 23, 2020, the court granted in large part Petitioners’ Petition for writ of mandate. Petitioners sought to compel the Board to (a) recognize that a quorum of the Board is five members, (b) recognize that any action taken by the Board requires the affirmative vote of five members, (c) adjourn any Board meeting when the number of directors present is less than five, (d) require the affirmative vote of five members of the Board to approve any action, (e) not represent any vote of the Board taken with fewer than a quorum of five members present, or approved by fewer than five members, to be the action of the Board, (f) terminate the agreement with Penilla as interim general manager, (g) solicit proposals for and appoint a new general manager, (h) terminate the agreement with the Willoughby Firm as general counsel, and (i) solicit proposals for and appoint a new general counsel. The court issued mandamus as to items (a)-(f) and (h), but not (g) and (i).

B. Applicable Law

Code of Civil Procedure[1] section 1008(a) provides for reconsideration of court orders. A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Sup. Ct. (1993) 19 Cal.App.4th 485, 490. Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment, or vacation of prior orders. A motion to reconsider must be brought within ten days of service of written notice of the original order.

To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

C. Statement of Facts

As a result of the court’s order of July 23, 2020, Vasquez currently serves as President of the Board. Vasquez Decl., ¶2. Anthony Willoughby (“Willoughby”) was retained as general counsel. Id. As a result of the July 23, 2020 hearing, Willoughby’s contract was canceled. Id. Prior to the hearing on July 23, 2020, Vasquez assumed that Willoughby was working in the best interests of the District. After sitting through the hearing, Vasquez came to realize that Willoughby was not working in the best interests of the District. Id.

Vasquez and other directors asked Willoughby to take certain actions and assumed that he would honor the request and take such action. Vasquez Decl., ¶2; Camacho-Rodriguez Decl., ¶2. For instance, the Petition makes various false and misleading statements about the four public directors, in particular Martha Camacho Rodriguez (“Camacho-Rodriguez”) and Vasquez. Id. The directors asked Willoughby to take discovery by way of sending simple interrogatories, deposing witnesses, and obtaining documents concerning the false allegations. Id. Willoughby refused to serve interrogatories and would give no good reason for his refusal, stating that such discovery would be a distraction. Id. Willoughby also failed to take a deposition despite his promise that he would do so. Id.

The directors gave Willoughby several California Supreme Court cases on point for their position, but Willoughby failed to provide the cases to the court. Vasquez Decl., ¶3; Camacho-Rodriguez Decl., ¶7. Since the July 23, 2020 hearing, Willoughby has failed and refused to talk or meet with the Board to explain the meaning of the ruling and the further actions it should take. Vasquez Decl., ¶4. Willoughby refused the Board’s suggestion to file a motion for reconsideration to provide the Supreme Court cases and he would not give a reason as to why. Id.

D. Analysis

Respondent Vasquez seeks reconsideration of the court’s July 23, 2020 mandamus decision. The motion is denied for two reasons.

The first reason is procedural. The Petition sued Vasquez as both an individual and as a Board member. She was represented by separate counsel in both capacities. The Board -- including all Board members in their representative capacity -- was represented by Attorney Willoughby. Vasquez was represented individually by Attorney Maurice Chenier. In seeking reconsideration, Vasquez now purports to act pro per, but she has not filed a substitution of attorney. Attorney Chenier still represents her individually and Attorney Willoughby represents the Board. Vasquez has no authority to appear alone on behalf of the Board. In fact, Willoughby has filed objections to the proposed judgment on behalf of the Board. Therefore, the motion is of no legal effect.

Second, the motion contains no basis for reconsideration. Section 1008(a) provides for reconsideration of a court order, but it limits the ground on which reconsideration may occur. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas, supra, 49 Cal.App.4th at 1160-61. The requirement of a satisfactory explanation for failing to provide the evidence earlier is a strict requirement of diligence. Garcia v. Hejmadi, supra, 58 Cal.App.4th at 690.

As Petitioners note (Opp. at 4-5), Vasquez presents no new facts or law in support of her motion. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit, supra, 32 Cal.App.4th at 1500. Yet, that is exactly what Vasquez’s motion argues. She contends that the court mistakenly failed to consider controlling California Supreme Court precedent, People v. Harrington, (1883) 63 Cal.3d 257 and Tidewater Southern Railway Company v. Jordan, (1912) 163 Cal.105, which she cited her declaration. Mot. at 2, 6. Aside from the fact that it is improper to discuss case law in a declaration, her very statement shows that the citations are not newly made in her motion. She also claims that the court’s decision erred when it said that the Board’s opposition had not addressed Lateef v. City of Madera, (2020) 45 Cal.App.5th 245, 248, when it had been addressed in Vasquez’s declaration. Mot. at 11-12. A mistake by the court in reviewing the parties’ papers is not a basis for reconsideration.[2]

F. Conclusion

The motion for reconsideration is denied.


[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] Vasquez also argues that Willoughby did not adequately represent the Board because he did not take any discovery on the serious issues of harassment and illegal conduct in the Petition. Mot. at 4. Vasquez fails to show how these allegations had any bearing on the court’s decision. In fact, they did not.

Case Number: 20STCP01180    Hearing Date: July 23, 2020    Dept: 85

City of Commerce, et al. v. Central Basin Municipal Water District, et al., 20STCP01180

Tentative decision on petition for writ of mandate: granted in large part

Petitioners City of Downey, City of Lakewood, City of Paramount, City of Santa Fe Springs, City of Signal Hill, City of Whittier, La Habra Heights County Water District, Pico Water District, South Montebello Irrigation District, Bellflower-Somerset Mutual Water Company, Montebello Land and Water Company, Tract 349, Mutual Water Company, and Walnut Park Mutual Water Company petition for a writ of mandate Respondents Central Basin Municipal Water District (“District”), the District’s Board of Directors (“Board”), Board members Leticia Vasquez (“Vasquez”), Phillip Hawkins (“Hawkins”), Arturo Chacon (“Chacon”), Martha Camacho-Rodriguez (“Camacho-Rodriguez”), and General Manager Carlos Penilla (“Penilla”) to comply with statutory provisions and the District’s Administrative Code for management of the Board and the District.

The court has read and considered the moving papers,[1] opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on March 25, 2020. The operative pleading is the First Amended Petition (“FAP”), filed on April 7, 2020. The verified FAP alleges in pertinent part as follows.

The District is a special district that was formed to act as a water wholesaler to water providers in southeast Los Angeles County that depend on water from the Metropolitan Water District. The District has a history of management and financial problems that have been so severe that the Legislature directed the State Controller to audit the District. That audit lead to legislation directed at implementing the recommendations that came out of the State Controller’s audit.

The management of the District is once again dysfunctional, with issues stemming from a pattern of conduct by a group of four Board members who ignore and act contrary to statutes and the District’s Administrative Code regarding the annual reorganization and appointment of officers of the Board, what constitutes a quorum for a meeting, the number of affirmative votes of members of the Board that are required for the Board to take action, as well as a disregard of protocol for Directors’ access to information and contacts with District staff.

Beginning in December 2019, the Board began to disregard the statutory provisions and Administrative Code provisions in ways that have caused the District to return to the level of dysfunction that prompted the Legislature to request that the State Auditor perform the audit.

As a result of Board’s conduct and failure, the following consequences have accrued, some on information and belief: (a) the District’s credit rating has been downgraded and some of the District’s obligations to vendors have been referred to collection agencies due to non-payment; (b) the District’s liability insurance expired on March 31, 2020; the District’s membership in a joint powers authority that provided protection from liability has been terminated; (c) the District has become uninsurable from other sources; (d) employees of the District have been harassed and intimidated by Board members, particularly Directors Vasquez and Camacho-Rodriguez; (e) Board oversight of routine financial transactions by approval of warrant registers has been abandoned; the District’s budget process for the 2020-21 fiscal year has been delayed; (f) the Public Integrity Division of the District Attorney’s office has written a letter to the Board demanding it cure Brown Act violations, also noting the failure to approve the appointment of a new general counsel by the required vote of five members of the Board; (g) the Metropolitan Water District of Southern California (“MWD”) has rejected the Board’s appointments to MWD’s board of directors on the grounds the appointments were not approved by the required vote of five members of the Board; and (h) the District’s Finance Director appeared at a public meeting of the Los Angeles County (“County”) Board of Supervisors and expressed his fear that he would be in violation of the law if he issued checks on behalf of the District for expenses that had not been properly authorized by the Board.

The Board’s actions in violating statutory provisions and its Administrative Code include: (1) improperly attempting to terminate the contract of then-general manager Kevin Hunt without a quorum; (2) improperly undertaking its 2020 annual reorganization without a quorum; (3) improperly terminating the District’s general counsel and appointing a new general counsel; (4) improperly appointing General Manager Penilla; and (5) failing to complete the process of filling a Board vacancy.

2. Course of Proceedings

On April 10, 2020, the court denied Petitioners’ ex parte application for declaratory relief and judicial determination.

On June 1, 2020, Petitioners filed a Request for Dismissal for Petitioner City of Commerce only. The court clerk entered the dismissal the same day.

B. Standard of Review

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085.

A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” CCP §1085(a).

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.” Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205. It is “essentially automatic based on whether certain fixed standards and objective measures have been met.” Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359. By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.

C. Governing Law

1. Water Code

Historically, the District’s Board was comprised of five directors serving in five different districts, all of whom were elected by the voters. Water Code[2] §71250. In 2017, the Legislature increased the Board’s membership from five to eight directors, with five members elected by the voters and three members appointed by the purveyors, until the directors elected in the November 2022 election take office. §71266. Section 71267 provides for the nomination and selection of the purveyor-appointed members.

A majority of the Board shall constitute a quorum for the transaction of business; however, no ordinance, motion or resolution shall be passed to become effective without the affirmative vote of a majority of the members of the Board. §71274. The Board shall act only by ordinance, resolution, or motion. §71276.

2. District Administrative Code

The affirmative vote of at least five directors is necessary for the Board to take action. The Board shall take action by motion, resolution or ordinance. Motions and resolutions may be adopted on voice vote. Roll call shall be taken if requested by a Director. Ordinances shall be adopted on roll call vote. District Administrative Code (“DAC”) §4.4(a). Pet. Ex. 8, p. 594.

In the event of any inconsistencies between the provisions of DAC and the language and rules expressed in the Brown Act (Govt. Code §54950 et seq.), the Brown Act shall control and govern the manner in which meetings of the Board are called and conducted. DAC §4.8. Pet. Ex. 8, p. 600.[3]

3. Brown Act

The Brown Act is codified at Govt. Code section 54950 et seq. The purpose of the Brown Act is to ensure the public's right to attend public meetings, facilitate public participation in all phases of local government decision making, and curb misuse of the democratic process by secret legislation of public bodies. Chaffee v. San Francisco Library Commission, (2004) 115 Ca1.App.4th 461. A major objective of the Brown Act is to facilitate public participation in all phases of local government decision-making and curb misuse of democratic process by secret legislation by public bodies. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, (1968) 263 Cal.App.2d 41, 50. The Brown Act “is a remedial statute that must be construed liberally so as to accomplish its purpose.” Shapiro v. Board of Directors, (2005) 134 Cal.App.4th 170, 181 (citing Epstein v. Hollywood Entertainment Dist. II Bus. Improvement Dist., (2001) 87 Cal.App.4th 862, 869).

To implement these legislative purposes, Govt. Code section 54953 provides for open meetings: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided by this chapter.” See Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, (2003) 112 Cal.App.4th 1313, 1321.

Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by Govt. Code section 54954.2(b). Govt. Code §54954.3(a).

An “action taken” means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. Govt. Code §54952.6.

A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing and posting a notice on the local agency's Internet Web site, if the local agency has one. The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. Govt. Code §54956(a).

D. Statement of Facts[4]

1. Petitioners’ Evidence[5]

a. Background

The District is a special district formed in 1952. The District acts as a water wholesaler, delivering water to approximately 40 public and private water providers, including cities, mutual water companies, investor-owned utilities and private companies in the southeast County. Oskoui Decl. ¶2.

Petitioners are some of those water providers, including cities, water districts and mutual water companies. Oskoui Decl. ¶2. The District purchases imported water from the MWD and acts as a wholesaler to water purveyors. Residents and voters do not directly purchase water from the District, but rather purchase their water from the purveyors. Oskoui Decl. ¶2. The District indirectly serves 1.6 million people from 24 cities and unincorporated areas. The District also provides the region with recycled water for municipal, commercial and industrial use, annually delivering 4,500 to 5,500 acre-feet, or an average of 1.6 billion gallons, of recycled water to more than 300 industrial, commercial, and landscape irrigation connections throughout the southeast County. Oskoui Decl. ¶2.

In addition to being governed by the Water Code, the District has its own Administrative Code (DAC), the current version of which was approved by the Board at its February 25, 2019 meeting. Oskoui Decl. ¶4, Pet. Exs. 8, 9.

On November 25, 2019, Frank Heldman (“Heldman”), the large water purveyor representative on the Board, resigned his position. Oskoui Decl. ¶5. After the resignation of Director Heldman, and under the auspices of Kevin Hunt (“Hunt”) as general manager, the District began the process of filling the vacancy. Oskoui Decl. ¶5. Pursuant to DAC section 1.4 of Part 2, qualified nominees were sought, a purveyor workshop was held, District staff mailed ballots to the purveyor members, and ballots were returned to the District. However, the ballots have not been opened and counted. They remain in the custody of Cecilia Pulido, Secretary to the Board of Directors and the District’s Director of Administrative Services. Oskoui Decl. ¶5, Pet. Ex. 8, pp. 581-84.

On April 22, 2020, the water purveyor members of the District submitted a letter to the Board demanding that Noe Negrete (“Negrete”), Public Works Director for the City of Santa Fe Springs and the person for whom all of the purveyor members voted to fill the vacancy created by Frank Heldman’s resignation, be seated. Oskoui Decl. ¶6, Pet. Ex. 16. No action to seat Negrete as a member of the Board has been taken, and no explanation has been provided why Negrete cannot be seated as a member of the Board. Oskoui Decl. ¶7.

b. 2020 Annual Board Reorganization

The agenda for the Board’s December 23, 2019 meeting included a closed session item regarding possible termination of Hunt’s contract as general manager. Pet. Ex. 3, pp. 164-65. At the outset of the meeting, there were seven Board members present. Pet. Ex. 3, pp. 164-65. Approximately 58 minutes into the meeting, fewer than five members of the Board remained and the meeting was adjourned due to the lack of a quorum. Pet. Ex. 3, pp. 164-65. Subsequent to this meeting, the District ceased to regard Hunt as its general manager.

At a January 30, 2020 meeting, the Board attempted its annual reorganization pursuant to DAC section 2.2 of Part 2. Seven directors were present at the beginning of the meeting, including Robert Apodaca, who was elected President of the Board in 2019. Pet. Ex. 4, p. 169; Ex. 8, pp. 585-86.

The Board went into closed session to discuss the appointment of a new general manager. When the Board returned to open session, Apodaca was no longer present. Pet. Ex. 4, pp. 179-80. Without any vote of the Board, Vasquez assumed control of the meeting and announced the Board would undertake its annual reorganization. Pet. Ex. 4, pp. 179-88. Steven O’Neill, Esq. (“O’Neill”), of the law firm of Olivarez Madruga Lemieux & O’Neill (“Olivarez Firm”), the District’s general counsel, explained that the Board would first attempt to elect a president and vice-president, and that if no candidate received the required five votes, then (based on seniority and as provided in DAC), Apodaca would be President and Hawkins would be Vice President. Pet. Ex. 4, pp. 179-88. O’Neill read the relevant DAC provision out loud multiple times in response to disputation of the appropriate process by Vasquez and others. Pet. Ex. 4, pp. 179-88.

Vasquez then called for nominations for President of the Board. She was the only director nominated. Pet. Ex. 4, pp. 184, 189-90. A vote of the six directors present was taken. Vasquez received four “yes” votes and two “no” votes. The clerk of the Board noted the motion had failed. Pet. Ex. 4, pp. 184, 189-90.

Vasquez proceeded to appoint the Board president by a default process provided for in the rotation, but she did not begin with Apodaca, who was the most senior member. Pet. Ex. 4, pp. 190-94. She asked Hawkins, who was next in seniority after Apodaca if he would serve and he declined. Pet. Ex. 4, pp. 190-94. Vasquez then asked Chacon to serve as president. Ex. 4, pp. 190-94. He agreed, but two directors then left the meeting. Ex. 4, pp. 190-94. The meeting continued with Vasquez presiding over the meeting. Vasquez asked Chacon to go through the process of appointment of the vice-president. Pet. Ex. 4, pp. 190-94.

c. Replacement of General Counsel

At a special meeting convened on February 6, 2020, Vasquez stated that the District’s general counsel had resigned, and the special meeting had been convened to retain new counsel to address this. Pet. Ex. 5, p. 203. The notice of the special meeting was posted at 10:55 a.m., five minutes prior to the start of the meeting, and was never posted on the District’s website. See Pet. Ex. 14, p. 663; Ailin Decl. ¶7; Pet. Ex. 17, pp. 700-01.

The Board went into closed session for approximately 11 minutes. Upon returning from closed session, Vasquez announced the Board had decided in closed session by the vote of four firectors to authorize the District’s finance director to sign a contract with the law firm of Willoughby & Associates (“Willoughby Firm”), which would be ratified at the next meeting of the Board. Pet. Ex. 5, p.204; Ex. 10, pp. 627-37. The finance director never signed this agreement, which states it is effective February 6, 2020 and is signed by Anthony Willoughby, Esq. (“Willoughby”) of the Willoughby Firm and by Vasquez. Pet. Ex. 5, p.204; Pet. Ex. 10, pp. 627-37. Willoughby then stated on the record that a majority of the members of the Board constitutes a quorum, and that a vacancy in one seat meant that four members would constitute a quorum. Pet. Ex. 5, pp. 205-06.

Despite the purported retention of the Willoughby Firm as replacement general counsel on February 6, 2020, attorneys from the Olivarez Firm continued to attend Board meeting, sit in the seat assigned to the general counsel, and provide advice to the Board at the meetings of February 14, and 24, 2020. Oskoui Decl. ¶8; Ex. 6, pp. 245-46, 283, 286; Pet. Ex. 7, pp. 390, 404.

d. Appointment of Interim General Manager

At the February 14, 2020 special meeting of the Board, Vasquez presided over the meeting, although her authority to do so was disputed repeatedly throughout the meeting. Six directors were present at the meeting. Pet. Ex. 6, p. 298.

Vasquez asked the members of the Board to vote to add an item to the agenda, which she stated was an emergency item, to hire Penilla as the interim general manager of the District. No effective vote was taken to add the item to the agenda. Pet. Ex. 6, pp. 278-80. The meeting was adjourned to the next regular meeting on February 24, 2020. Pet. Ex. 6, p.383.

At the Board meeting on February 24, 2020, Vasquez announced the Board had voted 4-2 in a closed session to appoint Penilla as new interim general manager. O’Neill of the Olivarez Firm advised the Board that this vote was not sufficient to approve the contract. Pet. Ex. 7, pp. 415-18. Willoughby stated a contrary opinion. Pet. Ex. 7, p.419. A document purporting to appoint Penilla as interim general manager, effective February 24, 2020, was signed by Penilla, Willoughby, and Vasquez. Pet. Ex. 11, pp. 639-52.

On February 28, 2020, the District received a letter from MWD disputing the validity of purported Board action on February 24, 2020 to appoint representatives to MWD’s board. Oskoui Decl. ¶9, Pet. Ex. 12. MWD rejected these appointments on the grounds they were not approved by five members of the Board and under California law, on the ground that a vacant seat does not change the quorum or voting requirements. Oskoui Decl. ¶9, Pet. Ex. 12.

On March 9, 2020, the District received a letter dated March 6, 2020 from the District Attorney’s Office. Oskoui Decl. ¶10. The letter was a demand to cure and correct Brown Act and DAC violations which occurred on February 6, 2020. The letter stated that under DAC the affirmative vote of at least five directors is necessary for the Board to take action. Oskoui Decl. ¶10, Pet. Ex. 13. The District Attorney’s Office found that since only four Board members voted to appoint a new general counsel at the February 6, 2020 special meeting, the Board violated its own DAC in addition to violating notice provisions of the Brown Act. Oskoui Decl. ¶10, Pet. Ex. 13.

2. Respondents’ Evidence[6]

On November 25, 2019, Heldman resigned his position on the Board, resulting in a seven-member board consisting of publicly elected board members Apodaca, Hawkins, Chacon, Vasquez, Camacho-Rodriguez, and private members Dan Arrighi (“Arrighi”) and John Oskoui (“Oskoui”). Vasquez Decl. ¶2, Ex. 1. Apodaca served as Chairman of the Board for five years continuously since 2014. Vasquez Decl. ¶2. Heldman’s vacancy has not been filled. Vasquez Decl. ¶2.

The majority, if not all, of the disputes regarding governance issues of the Board are based on the fact that the Board has seven members, with the members disagreeing on what constitutes a quorum. Vasquez Decl. ¶3. Hawkins, Chacon, Vasquez, and Camacho-Rodriguez believe that four of the seven members constitutes a quorum whereas Apodaca, Arrighi, and Oskoui believe that five of the seven members are necessary. Vasquez Decl. ¶3. As a result of the dispute, the Board has been unable to properly convene and complete many of its meetings. Vasquez Decl. ¶¶ 3-4. Apodaca would unilaterally adjourn meetings without a motion or a vote. Vasquez Decl. ¶4. The Board Secretary, Cecilia Padilla (“Padilla”) refused to take direction from any of the four majority Board members, refused to take action to schedule a Board meeting, and refused to post a Board meeting and disseminate an agenda. Vasquez Decl. ¶5.

On January 30, 2020, there was a regularly scheduled Board meeting and one of the items on the agenda was the reorganization of the Board and selection of Board officers. Vasquez Decl. ¶6; Chacon Decl. ¶4. Vasquez was selected as Chairperson of the Board with the consent of four of the seven members and Chacon was elected as Vice-Chair with four of seven votes. Vasquez Decl. ¶6; Chacon Decl. ¶6. After the vote, there was a dispute among the directors as to the default process to appoint the president. Chacon Decl. ¶7. Vasquez was selected as Board Chairperson using the normal rotation and seniority process. Hawkins and Chacon, who are senior to her, declined to assume the Chairmanship and Vasquez was next in line for seniority. Vasquez Decl. ¶6. Her selection was approved and agreed upon by four of the six members present. Vasquez Decl. ¶6; Chacon Decl. ¶¶ 7-8. Apodaca still insists he is the president of the Board because five votes are necessary from a seven-member board to take any action. Vasquez Decl. ¶6.

Also, at the January 30, 2020 meeting, the Olivarez Firm resigned as general counsel to the District after O’Neill[7] gave the Board conflicting legal advice and was questioned about it. Vasquez Decl. ¶24; Chacon Decl. ¶9. Vasquez later emailed OMLO confirming the Board had accepted the resignation. Vasquez Decl. ¶24.

At the Board’s February 14, 2020 meeting, Apodaca, at Oskoui’s order, attempted to physically stop Vasquez from chairing the meeting. Vasquez Decl. ¶8; Chacon Decl. ¶10. Apodaca, Oskoui, and Arrighi refused to acknowledge Vasquez’s presidency and maintained that Apodaca is still President. Chacon Decl. ¶10.

On February 24, 2020, at a regularly scheduled meeting of the Board, the Board majority approved hiring the Willoughby Firm as the Board’s general counsel and Penilla as interim general manager. Vasquez Decl. ¶9; Chacon Decl. ¶11.

On March 2, 2020, Apodaca unilaterally appointed Hamilton as acting general manager, despite the Board’s previous rejections of Hamilton as a candidate. Vasquez Decl. ¶11; Chacon Decl. ¶13.

On March 3, 2020, Vasquez, Camacho-Rodriguez, and Hawkins had their key card access to District headquarters disabled on Hamilton’s instructions. Vasquez Decl. ¶14; Chacon Decl. ¶12. Hamilton also instructed that the locks to headquarters be changed and a deadbolt installed on March 25, 2020. Vasquez Decl. ¶14. Hamilton also ordered the placement of “No Trespassing” signs and the installation of a chain link and padlock on the doors, which later had to be removed by the Sheriff’s Department. Vasquez Decl. ¶14, Ex. 6; Chacon Decl. ¶15.

E. Analysis

Petitioners seek mandamus to compel the District set aside its actions of (1) improperly undertaking its 2020 annual reorganization without a quorum, (2) improperly appointing the Willoughby Firm as general counsel, and (3) improperly naming Vasquez as Board president instead of Apodaca. Petitioners also seek mandamus to compel the District to (4) adhere to a quorum of five Board members for all meetings, (5) require that five Board members must vote to approve any action, (6) complete the process of filling the Board’s vacancy, and (7) name Apodaca as Board president.

1. Section 71274 and DAC section 4.4(a) Require Five Directors for a Quorum and Five Directors to Pass a Motion

The District notes that Petitioners must show that it has a clear, present, and ministerial duty to act and that mandamus may be denied as unnecessary if the evidence shows the Board’s willingness to perform without coercion. The District contends that it has sought to comply with its duties by reorganizing the Board, appointing an interim general manager with the authority to open and count ballots, and appointing general counsel to protect the Board’s legal interests. Unfortunately, Petitioners are not happy with these decisions. The District argues that the only true issue is the Board’s voting requirements. Opp. at 5-6.

Section 71274 and DAC section 4.4(a) of Chapter 1, Part 2 both require (a) the presence of five members for a quorum at any Board meeting and (b) the affirmative vote of five members for any Board action. The Board may not legally act unless there are at least five members present at a meeting (quorum), and at least five members vote in favor of any proposed action. In light of this law, a director vacancy cannot reduce the number of members required for a quorum or Board action. At present, the Board is an eight-member board and must remain so until after the November 2022 election. Therefore, five directors are needed for a quorum (a majority of the eight members) and five directors are needed to pass a motion.

This conclusion is supported by Price v. Tennant Community Services Dist., (“Price”) (1987) 194 Cal.App.3d 491, in which a community service district had a five-member board with four vacancies, leaving a single individual as the lone remaining member. Id. at 493. The issue was whether the sole member or the county board of supervisors had the power to appoint directors to file the four vacancies. Id. The Community Services District Law provided that each district shall have a board of three or five directors; five directors were elected for the district. Id. at 494. Board vacancies were required to be filled pursuant to Govt. Code section 1780, which provided that “the remaining district board members may fill the vacancy by appointment” or alternatively by election. Id. at 495. The Community Services District Law required the district’s board to act by ordinance, resolution, or motion, and to do so through an affirmative vote of a majority of the board of directors. Id. A quorum of the board to transact business also was statutorily required to be a majority. Id. The majority of the five-person board was three directors. Id. Thus, the Community Services District Law required a vote of three board members before any act could be effective. Id. at 496. “The statutes of the Community Services District Law, when construed together, required the affirmative vote of three members of the board of directors before any act of the board can become effective.” Id. at 496.

Price cited with approval the Attorney General’s opinion in 55 Ops.Cal.Atty.Gen. 26 (1972), in which there was a question whether a majority of a five-person board (three members) was required for a vote or only a majority of a quorum of the board (two members). Id. at 496. In concluding that a majority of the entire board was necessary for a vote, the Attorney General relied on the fact that there were two provisions: one dealing with the quorum and one dealing with the minimum number of votes to take action. Ibid. If the Legislature intended that a majority of a quorum could take action, it would have enacted only one section or else would have used a phrase like “majority of the quorum”, not “majority of the board”. Ibid.

The Price court considered whether the majority vote requirement changed when there were board vacancies. Nothing in Govt. Code section 1780 suggested that the Legislature meant to authorize the remaining board members to fill a vacancy when there was less than a majority of three members. Id. Hence, the remaining board members could fill a vacancy only if there were at least three board members to constitute a majority and all three voted to do so. Id. at 497. A single director did not have that authority and it was “nonsensical to talk about a quorum or majority of one.” Id.

The Price court distinguished another Attorney General opinion (49 Ops.Cal.Att.Gen. 30, 33 (1967), which concluded that less than a majority could fill board vacancies “provided the quorum statute which governs the operation of their board does not require action by a majority of all of the members elected.” The Price court noted that the Community Services District Law quorum provision did require a majority of the board to act. Id. at 498. The court held that, since there was less than a majority left, the authority to fill board vacancies by appointment or call for election passed to the county board of supervisors under Govt. Code section 1780(b). Id. at 499-500.

The District distinguishes Price as a case of an extreme: one director was left on the board. The District explains Price by arguing that the purpose of a quorum -- to ensure that a board's determinations reflect the considered judgment of at least a significant and representative number of the board's or commission's members -- would have been defeated if that last remaining member constituted a majority or quorum. Opp. at 10.

In the present case, there is only one vacancy on a board with eight seats. According to the District, Petitioners incorrectly argue that five affirmative votes constitute a majority regardless of the vacant seat. According to the District, Price does not say that a board must adhere to the same specific number for a quorum and majority in the face of a vacancy and Price does not say that vacancies are to be counted as affirmative or negative votes. Rather, Price stands for the idea that the purpose of a quorum and a majority must be maintained even in the face of vacancies. To that end, Price held that a board with less than the number of board members required to form a quorum due to vacancies loses its power. Opp. at 10.

The District concludes that Price should be applied to its Board vacancy as follows: "when the remaining members" of the Board constitute "less than a majority" of the eight-member Board, the Board would no longer have sufficient membership to exercise its power. If the Board had less than five seated members (at least three vacancies), it would no longer have sufficient membership to exercise its power. There are currently seven of the eight members seated. Thus, the "remaining members" constitute more "than a majority" of the eight-member board and the Board has sufficient membership to exercise its powers by majority vote. Opp. at 11.

The District’s opposition confuses the facts of Price with its reasoning. True, the numbers were extreme, but Price’s holding was not based on the extreme facts of a single board member. Rather, Price’s holding was based on the facts that the Community Services District Law required both that a majority of the board shall constitute a quorum and that only a majority of the board could pass an ordinance, resolution, or motion. Price, supra, 194 Cal.App.3d at 499. In this statutory scheme, a majority of the board was required for a quorum to act. Ibid. The fact that a single board member was left did not enter into the decision; it only demonstrated the greater force of the holding and the absurdity of talking about a quorum or majority of one. Id. at 497.

Even if Price’s facts are distinguishable, its holding is not. The language of section 71274 and the statutory language analyzed by Price are almost word-for-word identical. A majority of the District’s eight-member Board is five, and a quorum of the Board is also five.[8] Price does not support the District’s conclusion that four members of the Board constitute a quorum and can take action. Any actions taken by the Board in the absence of at least five members of the Board, or upon the affirmative vote of fewer than five members of the Board, are therefore void and have no effect.

The DAC is even more specific. While section 71274 requires an affirmative vote of a majority of the members of the board for any action, the DAC expressly requires an affirmative vote of at least five directors. DAC §4.4(a). Pet. Ex. 8, p. 594. The District attempts to avoid DAC section 4.4(a)’s application by arguing that the DAC is not law, but rather a code of policies based on California law to guide District operations. DAC Part 1, Chapter 1, Article 1, section 1.1[9] states that it consists of resolutions and ordinances of the District, codified pursuant to the Municipal Water District Law of 1911, particularly Water Code sections 71267 and 71281, and Article 2 of the Chapter 1, Part 1 of Division 1 of Title 5 of the Government Code.

The District’s position on the DAC is surprising. The DAC consists of resolutions and ordinances. Plainly, at least its ordinances are law. Moreover, Petitioners correctly argue that whether DAC sets forth law is not the issue. At a minimum, DAC constitutes the District’s rules, and a public entity can be compelled to follow its own valid and unambiguous rules. Gregory v. State Board of Control, (1999) 73 Cal.App.4th 584, 595. Since section 4.4(a) expressly provides that five affirmative Board votes are necessary to take action, the District must follow this rule unless inconsistent with statutory law.

The District argues that the DAC is inconsistent with the Brown Act. DAC Part 2, Chapter 1, Article 4, section 4.8, states that the Brown Act controls in the event of inconsistencies: "In the event of any inconsistencies between the provisions of this Administrative Code and the language and rules expressed in the Brown Act, Government Code section 54950, et seq., the law as found in the Brown Act shall control and govern the manner in which meetings of the Board are called and conducted." Opp. at 6-7.[10]

The Brown Act defines "action taken" as " a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance." Govt. Code §54952.6. Opp. at 7.

The District argues that, while DAC requires a vote of five members to take action, the Brown Act only requires action taken by a majority of the members when sitting as a body or entity upon a motion. The District contends that the DAC’s specific number of five members conflicts with the Brown Act because five is not a majority when a board has a vacancy and less than eight members sit on a board. Thus, the DAC must give way to the Brown Act when there is a board vacancy. Opp. at 7-8.

This argument is spurious. The Brown Act’s purpose is to ensure the public's right to attend public meetings, facilitate public participation in all phases of local government decision making, and curb misuse of the democratic process by secret legislation of public bodies. Chaffee v. San Francisco Library Commission, supra, 115 Ca1.App.4th at 461. Govt. Code section 54952.6 defines “action taken” for purposes of determining when an open meeting or report of a closed session is required. See, e.g., Govt. Code §§ 54953, 54957.1. This open meeting requirement has nothing to do with the substantive number of votes required for a board to pass an ordinance, resolution, or motion. Additionally, the DAC’s requirement of a five-member vote and the Brown Act’s definition of a Board action as a decision by a majority of the members when sitting as a body are not inconsistent. The majority of the eight-member Board sitting as a body is still five members, whether or not there is a vacancy. See Lateef, supra, 45 Cal.App.5th at 248.

The District argues that majorities and quorums are “simply common law concepts”. The Attorney General has determined that the requirement of a quorum exists to "ensure that a board's or commission's determinations reflect the considered judgment of at least a significant and representative number of the board's or commission's members. " 94 Ops. Cal.Atty.Gen 100, 7 (emphasis added). The United States Supreme Court has determined that, absent a contrary statutory provision, the common law rule applies that a quorum constitutes a simple majority of a collective body. FTC v. Flotell Products, (1967) 389 U.S. 179, 183; Missouri Pac. Ry. Co. v. State of Kansas, (1919) 248 U.S. 276, 280-81. The District concludes that, when faced with vacancies, the controlling law does not define a specific number but rather directs that the number must ensure that a board's determinations reflect the considered judgment of at least a significant and representative number of the board's or commission's members. This is done with the goal of preserving majority rule and not allowing a minority to subvert the majority. Opp. at 9.

The District further argues that the analysis of the Board’s quorum requirement must be done to "ensure that a board's or commission's determinations reflect the considered judgment of at least a significant and representative number of the board's or commission's members." 94 Ops. Cal.Atty.Gen 100, 7. Section 71274 does not require a supermajority and does not require a specific number of votes; it requires a majority. A majority of seven seated members is four and this constitutes a quorum for the purposes of Board meetings with a single vacancy on the Board. Likewise, four affirmative votes are required for the District to transact business when there is a single vacancy on the Board and no abstentions from voting.[11] A requirement of five votes out of seven does not ensure that the Board’s determinations reflect the considered judgment of a significant and representative number of the members. Such a requirement would ensure that a minority of three members would control all voting determinations and impose a supermajority requirement. Opp. at 12-13.

The District’s argument that the common law purpose of a quorum should control runs contrary to section 71274, DAC, and Price. The common law purpose of a quorum has no relevance where a statute, case law, and the District’s own rules require that a majority of the Board constitutes a quorum and a majority of the Board is required to transact business. Five Board directors are needed for a quorum (a majority of the eight members) and five directors are needed to pass an ordinance, resolution, or motion.

 

2. Vasquez is the Board President

Petitioners argue that Vasquez was not properly chosen as Board president. Pet. Op. Br. at 14.

DAC Part 2, Chapter 1, Article 2, section 2.2 requires the Board hold a reorganization meeting each January and select both the president and vice-president for a one-year term. Pet. Ex. 8, pp. 585-86. Because a quorum consists of five directors and the affirmative vote of five directors is required for the Board to take action, the clerk of the Board correctly determined that four votes were insufficient to elect Director Vasquez as president of the Board. Pet. Ex. 4, p. 189-90.

When the Board cannot agree on the selection of its president, the position of president is to be filled by the most senior member of the Board “by a rotation process” for the one-year period. Pet. Ex. 8, p. 585.[12] Persons shall be appointed to the position of vice-president in the same order for the period immediately preceding their appointment as president. Id. If a director declines the position, the office shall fall to the director next in line in the rotation. Id. Under this default process, once the director completes his/her full one-year term as president or vice-president, he/she shall be placed at the bottom of the rotation list and the other directors shall move up. Id.

Petitioners summarize this DAC provision as providing that, where the Board does not select a president, the director at the top of the seniority ranking fills the position of president for a year. Similarly, if the Board cannot agree on which director will serve as vice-president, the position is filled by the second-most senior member of the Board on the ranking of seniority. That director serves as vice-president until he or she is rotated into the position of president at the end of the year, at which point the outgoing president rotates to the bottom of the list. Pet. Op. Br. at 15.

The Board elected Director Apodaca as president in 2019. Pet. Ex. 9, p. 611. At the January 30, 2020 meeting of the Board, Director Vasquez did not get the required number of votes to be elected president, thereby activating the rotation process. Pet. Ex. 4, p. 189-90. According to Petitioners, Director Apodaca was the most senior member of the Board and, because his preceding term as president was by election rather than a default seniority rotation, he did not rotate to the bottom of the seniority list. Petitioners argue that Apodaca’s status as the sitting president elected the previous year is irrelevant; the default seniority provision only begins to apply when the Board cannot decide. Petitioners conclude that, as its most senior member, Apodaca should be the president of the Board, not Vasquez.

The District properly rebuts this argument by relying on the ordinary meaning of the word “rotation”, which means “the succession in a series.” See De Vries v. Regents of University of California, (2016) 6 Cal.App.5th 574, 591 (when a term goes undefined in a statute, the courts give the term its ordinary meaning). Although Director Apodaca is the most senior member of the Board, he was the sitting president at the January 30, 2020 Board meeting. Using the ordinary meaning of rotation as a succession in a series, he must be moved to the bottom of the list and the presidency falls to the next most senior director until someone accepts the position. At the January 30, 2020 meeting, both Directors Hawkins and Chacon, the next most senior directors, declined. This passed the presidency to Director Vasquez, who accepted.

Vasquez is the proper Board president through the default rotation process.

3. The Brown Act

a. Contract with General Counsel

The Board’s vote to authorize the District’s finance director to sign a contract with the Willoughby Firm was based only on four votes, which was not a majority. The contract is void for that reason. In addition to the failure to obtain a majority vote, Petitioners argue that the District violated the Brown Act for the February 6 special meeting of the Board.

Petitioners first argue that the February 6 special meeting was not called by an officer with the capacity to call a special meeting. Pet. Op. Br. at 16. A special meeting may be called by the presiding officer of the legislative body or by a majority of the members of the legislative body. Govt. Code §54956(a). As Vasquez was properly selected as the president of the Board, the meeting was properly called.

Petitioners also argue that notice of the special meeting was not properly posted. Government Code section 54956(a) and (c) requires notice of a special meeting to be posted at a location freely accessible to members of the public, and on the website of the local agency, at least 24 hours prior to the meeting. The notice of the meeting was posted at 10:55 a.m. on the day of the special meeting which began at 11:00 a.m., less than 24 hours after the notice was posted. In addition, the notice was never posted on the District’s website as required. Pet. Ex. 14, p. 663; Ailin Decl., ¶¶ 7; Ex. 17, 700-01. Pet. Op. Br. at 16.

The District does not respond to this argument. The remedy for a Brown Act violation in failing to provide proper notice to set aside the action as null and void. Govt. Code §54960.1. The appointment of and contract with the Willoughby Firm as general counsel, which purportedly took place at the February 6, 2020 special meeting, is null and void under the Brown Act.

b. Contract with Interim General Manager

The Board’s vote at the February 24, 2020 regular meeting in a closed session to appoint Penilla as new interim general manager was based only on four votes, which was not a majority. The contract is void for that reason. In addition to the failure to obtain a majority vote, Petitioners argue that the District violated the Brown Act for the February 24 meeting of the Board.

The Board met in closed session at the February 24 meeting to approve the interim general manager contract with Penilla. Pet. Ex. 7, p. 415-18. See Pet. Ex. 11, pp. 639-52. Petitioners contend that the Board the Board violated the Brown Act by approving the contract in closed session. Petitioners argue that the closed session both violated the open meeting requirements of Govt. Code section 54953(a) and violated the requirement that the public be given the opportunity to address the contract before the Board in violation of Govt. Code section 54954.3. Pet. Op. Br. at 16.

A local agency may hold a closed session to discuss the appointment of employees. Govt. Code §54957. Prior considering the issue of appointment in a closed session of a regular meeting, the local body must place the matter on the agenda and provide an opportunity for the public to address the matter before the closed session meeting. Govt. Code §§ 54954.2(a); 54954.3(a). After the closed session, the local body must publicly report any action taken on the appointment. Govt. Code §54957.1(a)(5).

The District does not defend its appointment of Penilla as general manager. From Petitioners’ exhibits, the court can tell that the Board properly placed the item on the agenda and reported out of closed session. Pet. Ex. 7, p. 417. However, as the District presents no opposing evidence on the issue, the court cannot tell whether the public was given any chance to comment on the general manager appointment under Govt. Code section 54954.3(a). Accordingly, the appointment of, and contract with, Penilla as interim general manager is null and void under the Brown Act.

4. Remedies

Petitioners point out that the District has never explained why the Board vacancy cannot or should not be filled. Oskoui Decl. ¶7. Pet. Op. Br. at 14. The District’s opposition makes no attempt to defend this issue, although it appears that the District was uncertain whether its interim general manager could count the votes. Mandamus shall issue to compel the District to fill the Board vacancy.

Petitioners also seek a writ of mandate requiring the Board to (a) recognize that a quorum of the Board is five members, (b) recognize that any action taken by the Board requires the affirmative vote of five members, (c) adjourn any Board meeting when the number of directors present is less than five, (d) require the affirmative vote of five members of the Board to approve any action, (e) not represent any vote of the Board taken with fewer than a quorum of five members present, or approved by fewer than five members, to be the action of the Board, (f) terminate the agreement with Penilla as interim general manager (g) solicit proposals for and appoint a new general manager; (h) terminate the agreement with the Willoughby Firm as general counsel; and (i) solicit proposals for and appoint a new general counsel.

All of these items are appropriate for mandamus except (g) and (i) to compel the District to solicit proposals for a new general counsel and a new general manager, respectively. These actions appear to be subject to the Board’s discretion and have not been shown to be proper subjects for mandamus. Mandamus shall issue for items (a)-(f) and (h), but not items (g) and (i).

Finally, Petitioners request that the writ of mandate require Penilla to reimburse the District for any compensation paid pursuant to his interim general manager agreement. Pet. Op. Br. at 13.

Penilla is named as a Respondent and a proof of service shows he was served by substitute service. However, he is not a party to the briefs and the court declines to compel him to return any compensation. This claim is more properly a damages action, not mandamus. Petitioners also provide no evidence of what Penilla’s compensation has been and whether he is entitled to quantum meruit. No mandamus shall issue requiring Penilla’s reimbursement of compensation.

F. Conclusion

The Petition is granted in large part. A writ shall issue consistent with the remedies section above. Petitioners’ counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on counsel for the District for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for August 27, 2020 at 9:30 a.m.


[1] Respondents object to Petitioners’ opening brief, asserting it exceeds the 15-page limit. CRC 3.1113(d) provides the 15-page limit and Petitioners correctly note that the table of contents and declarations are not included in the page count. Petitioners’ opening brief complies with CRC 3.1113(d). In contrast, Respondents fail to comply with the rule because they do not provide a table of contents and table of authorities. Respondents’ counsel is directed to comply with CRC 3.1113(d) in the future. Both parties also fail to provide tabs for their courtesy copy exhibits and their counsel are admonished to do so in all future filings.

[2] All further statutory references are to the Water Code unless otherwise stated.

[3] This provision was not included in Petitioners’ Exhibit 8.

[4] The court has ruled on the parties’ evidentiary objections, interlineating the courtesy copy of the evidence where an objection was sustained. The clerk is ordered to scan and file the hard copy of the court’s rulings, which will also be available at the hearing. Petitioners Compendium of Exhibits did not contain Exhibits 15 and 18 and the objection to those exhibits was therefore sustained.

[5] Petitioners request judicial notice of the First Amended Complaint in Hunt v. Central Basin Municipal Water District, Los Angeles Superior Court Case No. 20STCV09512, filed on March 9, 2020. The existence of the requested document, but not the truth of its contents, is judicially noticed and Respondents’ objection is overruled. Evid. Code §452(d); Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings in court documents may not be judicially noticed).

[6] Respondents’ Exhibits skip from Exhibit 4 to Exhibit 6.

[7] Defendants refer to O’Neill as “O’Neal.”

[8] The District’s opposition also fails to address Lateef v. City of Madera, (“Lateef”) (2020) 45 Cal.App.5th 245, 248, which concerned whether a vacant council member seat and a recused council member should be counted under the city’s municipal code in determining whether there were the votes necessary (5/7ths) to overturn a planning commission decision. In deciding whether this construction resulted in an unfair hearing, the Lateef court cited Price for the California law that “a vacant council seat is included in determining whether a quorum exists.Id. at 259. Under Lateef, the Board’s unfilled eighth seat must be included in the calculation of the quorum.

[9] The District fails to provide the court with this DAC provision.

[10] The District fails to provide the court with this DAC provision.

[11] The District cites case law concerning abstention votes. Dry Creek Valley Association, Inc. v. Board of Supervisors of Sonoma County, (1977) 67 Cal.App.3d 839 (board of supervisors rule that abstain vote qualified as yes vote meant that majority of board concurred), Martin v. Ballinger, (1983) 25 Cal.App.2d 435 (board member must vote against measure to defeat it, and refusal is consent). Opp. at 12. This case law does not aid the District’s position.

[12] DAC Part 2, Chapter 1, Article 2, section 2.2 provides in pertinent part as follows:

"[I]n the event the board is unable to agree on the selection of officers in any given year, then the position of President shall be filled by the most senior member of the Board by a rotation process.”

“Persons shall be appointed to the position of Vice President in the same order for the period of time immediately preceding their appointment as President, only in the event the Board is unable to agree on the selection of a Director to serve as Vice President.”

“In the event a Director declines the position, that office shall fall to the Director next in line in the rotation. Under this default process of selection of officers, once the Director completes his/her full one-year term as President..., he/she shall be placed at the bottom of the rotation list and all other Directors shall move up on the list....” Pet. Ex. 8, p. 585.

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