Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County, No. 9395, F. Dana Walton, Judge.
Law Offices of Linda L. Daube, Linda L. Daube, for Plaintiffs and Appellants.
Griswold, LaSalle, Dowd, Cobb & Gin, Raymond L. Carlson, for Defendants and Respondents.
Wiseman, Acting P.J.
This appeal is from the dismissal, upon a demurrer, of a petition for a writ of mandate to nullify the decision of defendant Lake Don Pedro Community Services District (district) to terminate the employment of plaintiffs Robert D. Kent and Kimberly R. Topie. The petition alleged that, in the process of firing Kent and Topie, the district violated provisions of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.). The district’s board of directors fired the two employees at an open public meeting, but the employees claim the board heard allegations of misconduct against them either at closed-session meetings of which they were not properly notified or at illegal serial meetings. We must decide whether the petition adequately alleged either (1) that the district violated section 54957, subdivision (b)(2), by hearing “specific complaints or charges” against the employees during a closed session without giving them 24 hours’ notice and the opportunity to have the complaints heard in an open session, or (2) that the district violated section 54952.2, subdivision (b)(1), by using a series of communications, outside an authorized meeting, to deliberate on the terminations. We conclude that the petition alleged a cause of action under both provisions and that the demurrer, therefore, must be overruled.
Subsequent statutory references are to the Government Code unless otherwise stated.
We affirm the portion of the judgment that dismisses the members of the district’s board as individuals, concluding that Kent and Topie’s claims under the Brown Act would entitle them to no relief against individual board members.
FACTUAL AND PROCEDURAL HISTORIES
Kent and Topie filed their petition for a writ of mandate on October 9, 2008, pursuant to Code of Civil Procedure section 1085. They also filed a complaint for damages, including other causes of action, in a separate suit. The superior court sustained the district’s demurrer to the petition and granted leave to amend. The record in this appeal does not show the status of the proceedings on the complaint for damages.
Kent and Topie filed an amended petition on February 25, 2009. It included the following allegations:
● Kent was employed by the district for 15 years and became its general manager in 2000. Topie also was a district employee for 15 years and became its treasurer in 2004. Both were fired at an open, noticed meeting of the district’s board on July 29, 2008. Neither was present at the meeting, and Kent was out of the state on vacation. The meeting was noticed one day before it took place. No reasons for the terminations were given at the meeting.
● On July 21, 2008, two separate closed-session meetings were held for the purpose of evaluating Kent and Topie. Kent and Topie were not notified that complaints or charges against them would be heard at these meetings or advised of the right to have complaints or charges heard at an open meeting. The minutes of the meeting about Kent indicate that he was present, but the petition states that the board did not “invite him to attend” the closed session in which he was evaluated. The petition alleges on information and belief that the board “discussed specific charges against [Kent] and decided to terminate his employment based upon their discussion.” Topie’s presence is not indicated in the minutes, but the petition implies that she was present, for it states that the meeting was a “pretext to interrogate her” during which board members “made false accusations about her.”
The petition makes an express statement about the lack of this type of notice and advisement with respect to Kent only. We infer that the same claim is intended with respect to Topie. The district has never argued that it did, in fact, give the notice and advisement to anyone at any time.
● Earlier, on June 30, 2008, the board evaluated Kent’s performance in a closed session. At the end of that session, Kent was “summoned into the meeting and presented with a document” stating the board’s dissatisfaction with certain actions by him. The document was headed “Letter of Censure from the Lake Don Pedro Community Services District Board of Directors To General Manager Bob Kent.” It stated that the board “finds that you do not clearly keep the Board informed.” It then listed six particular matters in which Kent had failed to follow the board’s instructions, complete tasks, or provide the board with information. The letter was signed by all five board members and dated June 26, 2008.
● Kent and Topie applied to the Employment Development Department (EDD) for unemployment benefits. Through counsel, the district opposed awarding benefits and made allegations to EDD of misconduct by both of the former employees. Counsel’s letter to EDD about Kent explained that the district had purchased a new system for reading water meters for over $400,000 and then learned that the system did not work. The letter alleged, among other things, that Kent had hidden adverse information about the system from the board prior to the purchase and had removed or destroyed records about the system. The letter further stated that Kent’s behavior constituted misconduct and dishonesty. It quoted a section of the Government Code providing for a prison term for theft or destruction of government records. The letter also alleged that Kent failed to supervise Topie adequately, with the result that the district’s financial accounts were in disarray. In a later letter in which the district appealed from an administrative law judge’s ruling on Kent’s unemployment claim, counsel expanded on these allegations, now stating that Kent purchased the water meter system without proper authorization. Counsel’s letter about Topie stated that she did not perform her job with competence or diligence, failing to keep proper payroll and benefits records and not correctly reconciling the district’s accounts. It also stated that Topie once falsified her time card by attending a lunch that “took longer than the 1/2 hour [allotted] for lunch.…” Finally, the letter alleged that, before the termination, Topie “was reported” to have said she wanted to watch a board member’s house burn; after the termination, she said she wanted to blow up the district. Counsel described these remarks as “the making of terrorist threats.”
The petition alleged that the district’s proceedings violated the Brown Act in a number of ways, two of which are at issue in this appeal. First, it alleged that the district heard complaints or charges against its employees in closed sessions without first giving the employees 24 hours’ notice and advising them of their right to have the complaints or charges heard in an open session. It claimed this violated the notice provisions of section 54957. Next, it alleged that board members had communications outside authorized meetings to develop an agreement to terminate the two employees. This was described as being in violation of the prohibition in section 54952.2 on so-called serial meetings.
The district filed another demurrer. At the hearing, the court appeared to accept the district’s contention that, because Kent and Topie were at-will employees, the district was entitled to terminate them in an open session even if it previously heard complaints against them in closed sessions and failed to provide the notice and advisement set forth in section 54957.
“THE COURT: [¶] … [¶] It seems to me that what the Board did was well within their right as to termination at an open meeting. Why does that not control?
“MS. DAUBE [plaintiffs’ counsel]: Because, your Honor, basically prior to that in these closed performance evaluation sessions, it is pretty clear to us that there were some very serious charges alleged. [¶] And that at no point did either of these [plaintiffs] have the opportunity to address those charges even as they sit here today.
“THE COURT: But as an at-will employee, do they really have a right to do that?
“MS. DAUBE: Yes, that does not-just because I’m at-will does not mean that you can impugn my reputation and tarnish my good name.
“THE COURT: Even in closed session?
“MS. DAUBE: That is correct. Unless you give me notice and an opportunity to respond to those charges, and that’s what the Brown Act specifically says.”
The court rejected Kent and Topie’s arguments. In an order drafted by counsel, it concluded that the amended petition failed to state a cause of action. It sustained the demurrer without leave to amend and dismissed the petition with prejudice.
The order recited that Kent and Topie were at-will employees. It stated that no provision of the Brown Act prevented the district from terminating at-will employees at an open-session meeting. It ruled that events in the closed-session meetings before the July 29, 2008, open meeting were irrelevant because the district did not terminate the employees at those earlier meetings. It also ruled that the district’s allegations in the unemployment insurance proceedings were irrelevant because those proceedings happened after the district terminated the employees.
Finally, the court made an implicit factual finding that the district’s actions in those closed sessions-whatever their character might have been-did not constitute the hearing of complaints or charges:
“Section 54957 grants only the right to have complaint[s] or charges heard in open session. ‘The requirement that employees receive notice of the right to have complaints or charges heard in open session does not extend to appointment, employment, evaluation of performance, discipline, or dismissal.’ Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th [87], 97 (emphasis added). A difference exists between the ‘hearing’ of complaints or charges and the consideration of whether to dismiss a public employee. The formality of a ‘hearing’ triggers the notice requirement; the adducing or considering of information does not. Kolter v. Commission of Professional Competence (2009) 170 Cal.App.4th 1346, 1351-1352.”
This appeal followed.
DISCUSSION
This is a pleading case. The only question presented is whether Kent and Topie’s petition set out allegations which, if established, would constitute a cause of action. The standard of review is well established:
“In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. ‘The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)
The standard of review is the same regardless of whether the challenged pleading was a complaint or a petition for a writ of mandate. (See, e.g., Nast v. State Bd. of Equalization (1996) 46 Cal.App.4th 343, 344-346.) We treat as admitted not only the facts contained in the petition, but also those that can reasonably be inferred from them. We also accept as true the factual allegations contained in exhibits to the petition. In determining what facts the petition alleges, we read it as a whole and view its parts in context. (Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 277-278.)
The two claims on which Kent and Topie rely in this appeal are based on sections 54957 and 54952.2, which provide:
“(b)(1) Subject to paragraph (2), nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.
“(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.” (§ 54957, subd. (b).)
“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” (§ 54952.2, subd. (b)(1).)
The statements in the petition and exhibits, plus reasonable inferences from them, allege that the district’s board must have heard complaints about the conduct and performance of Kent and Topie at some time. There would seem to be only four logical possibilities about this: the board heard the complaints in an open session; it heard them in a closed session; it heard them in serial or other unauthorized meetings; it never, as a body, heard them at all. The first possibility can be ruled out, for it is undisputed that no reasons for the terminations were presented at an open meeting. The fourth possibility is improbable, for it would mean that when the motions to terminate Kent and Topie were made, seconded, and unanimously approved, the board members were acting independently and without advance discussion. This is not impossible. For example, someone might have brought complaints to each board member’s attention separately at an earlier time, and the vote at the open meeting could have been based on each member’s separate deliberation on those complaints. At the pleading stage, however, it is not necessary for the plaintiffs to disprove this possibility.
This leaves the second and third possibilities. If the third possibility-serial meetings-is what happened, then the district violated section 54952.2, subdivision (b)(1). If the second possibility-closed sessions-is correct, then the district was required to give Kent and Topie 24 hours’ notice of the closed sessions and advise them of their right to have the complaints heard in open session. If it did not, it violated section 54957, subdivision (b), and the action it took based on the complaints was null and void.
Kent and Topie have stated causes of action under both provisions. In Kent’s case, the petition alleged that the letter of censure was presented to him in a closed session before which he was not advised of his right to an open session; it was already typed and signed and laid out specific complaints. The board members could have heard these complaints earlier in the closed session or through a series of communications outside an authorized meeting. In Topie’s case, the petition alleged that she was accused of misconduct at a closed session before which she did not receive notification of her right to an open session. The board could have been hearing those accusations for the first time at that meeting, or it might have heard them before through a series of communications outside an authorized meeting.
The analysis in the counsel-drafted order adopted by the superior court is erroneous. It makes no difference that Kent and Topie were at-will employees. The relevant provisions of the Brown Act make no distinction between at-will employees and other employees. All local agency employees have the rights described in section 54957, subdivision (b). Section 54952.2, subdivision (b)(1), applies to all business within the local agency’s jurisdiction. There is no exclusion for personnel matters concerning at-will employees.
Contrary to the district’s view, there is no “conflict” between section 54957, subdivision (b)(2), and statutes on at-will employment, such as section 61050, subdivision (d), and Labor Code section 2922. There is no reason why a statute, such as the Brown Act, cannot give certain rights to employees who are terminable at will. There are many examples of statutes which do just that, such as antidiscrimination laws.
The court also was mistaken in stating that closed-session meetings preceding the meeting on July 29, 2008, at which Kent and Topie were fired, are not relevant because the board did not fire them at those earlier meetings. Section 54957, subdivision (b)(2), states that action taken against the employee based on the complaints heard in the closed session shall be null and void. The petition alleges that the terminations on July 29, 2008, must have been based on complaints heard in earlier meetings. Courts have held that mandamus lies to void a decision to fire an employee where the decision was based on complaints heard in a closed session and the employee did not receive the required notice. (See Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 876.)
Finally, in ruling on a demurrer, the court could not properly make the factual finding that any action the board might have taken in a closed session did not constitute the hearing of specific complaints or charges. It is true, as the court indicated, that courts have distinguished between hearing “specific complaints or charges brought against an employee by another person or employee” in a closed session-for which section 54957, subdivision (b)(2), requires 24 hours’ notice and an advisement of the right to an open session-and other employment-related actions, which can be done in closed session without this notice. The existence of this distinction does not show, however, that Kent and Topie failed to allege a cause of action. The fact that employees in other cases failed to prove a hearing of specific complaints does not mean Kent and Topie failed to allege it in this case.
In Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87 (Fischer), which the court cited, the appellate court held that there was no violation where the agency’s board, without notice, used a closed session to evaluate probationary teachers for retention or dismissal. The board decided to dismiss the teachers based on documents and written recommendations discussing their performance. The trial court granted the teachers’ writ petition based on section 54957 and voided the board’s decision. (Fischer, supra, at p. 92.) The Court of Appeal reversed. It pointed out that the statute distinguishes between hearing “‘specific complaints or charges brought against an employee by another person or employee’” on the one hand, and considering “‘the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee’” on the other. (Id. at p. 96.) The statute requires notice of a closed session and of the right to an open session only for the hearing of specific complaints or charges. (Id. at p. 97.) Even though the written materials the board reviewed in the closed session included specific allegations of misconduct, the court concluded that the materials were evaluations of performance, not specific complaints or charges, within the meaning of the statute. This was because there were earlier proceedings not involving the board-“conferences and meetings with district administrative personnel”-at which the allegations of misconduct had been first presented to the employees. “This was the stage at which specific complaints and charges were brought against an employee, ” the court stated. (Id. at p. 100.)
Assuming Fischer was decided correctly-and putting aside the fact that a major part of the court’s task in Fischer was to reconcile the Brown Act provision with provisions of the Education Code that denied probationary teachers certain procedural rights (Fischer, supra, 70 Cal.App.4th at pp. 93-95)-its holding is no basis for sustaining the district’s demurrer here. Statements in the petition and exhibits, plus reasonable inferences, amount to an allegation that the board heard specific complaints against Kent and Topie in closed sessions without giving the required notice. The fact that Kent and Topie have not yet proved the nature of what the board heard is not an issue at the pleading stage.
In Kolter v. Commission on Professional Competence of Los Angeles Unified School Dist. (2009) 170 Cal.App.4th 1346 (Kolter), which the court also cited, the school district’s board initiated proceedings to fire a permanent teacher in a closed session without providing the teacher with the notice required by section 54957. After the closed session, the board notified the teacher of its intent to fire her and of her right to a public hearing. She exercised the right to a public hearing; the hearing was held, evidence was taken, and the Commission on Professional Competence voted for dismissal. (Kolter, supra, at p. 1349.) The Court of Appeal held that notice and advisement of the right to an open meeting were not required for the meeting at which the district’s board decided to initiate the termination proceedings. Charges against the teacher might have been considered at that closed session, but they were heard at the public meeting. (Id. at p. 1352.) In the present case, by contrast, the petition alleges that specific complaints or charges were heard at a closed session that was held without proper notice. Further, it is undisputed that there was never any subsequent, properly conducted meeting at which complaints or charges were heard. Kolter is no basis for a determination that Kent and Topie failed to state a cause of action.
To summarize, in Fischer, complaints or charges were heard in earlier meetings with district staff and only considered by the board in the later closed session, while in Kolter, complaints or charges were heard in a later open meeting and only considered by the board in an earlier closed session. Kent and Topie, by contrast, have alleged that complaints or charges were heard in improperly noticed closed meetings. If there were earlier or later forums in which complaints or charges were heard, they might support the notion that what happened in the closed sessions was not a hearing but only a consideration of allegations of misconduct. The district, however, has not even claimed there were any such earlier or later forums.
Moreno v. City of King (2005) 127 Cal.App.4th 17 (Moreno), cited by Kent and Topie, illustrates the manner in which allegations like theirs can form the basis of a case for a Brown Act violation. Moreno was the city’s finance director. Several days after a closed-session meeting of the city council, of which Moreno was not notified, the city manager fired Moreno and gave him a memorandum setting forth five incidents of alleged misconduct. Moreno was never given an opportunity to respond to the accusations. (Moreno, supra, at p. 21.) Moreno filed a petition for a writ of mandate in the superior court. Although Moreno was not present at the closed session and did not know what happened in it, he alleged that it must have been used to hear complaints of the alleged misconduct, and therefore it violated section 54957, since the council did not give Moreno the required notice. (Moreno, supra, at p. 22.) The city manager testified in the trial court that he gave the council members a memorandum at the closed session setting forth the five complaints against Moreno, and that the council members discussed the accusations. (Id. at p. 23.) The trial court found a violation of the notice requirement and declared Moreno’s termination, which was based on the accusations heard at the meeting, to be null and void. (Ibid.) The Court of Appeal affirmed. It rejected the city’s contention that it did not hear complaints or charges against Moreno but merely considered an evaluation of his performance. The city manager’s testimony showed that he brought complaints before the council and that the council, spending a portion of the meeting discussing Moreno and his potential termination, heard the complaints. (Id. at pp. 28-29.) Kent and Topie’s petition contains sufficient allegations to make out a cause of action on the same pattern as Moreno.
The district is mistaken in its view that this appeal is moot because it could re-terminate Kent and Topie “nunc pro tunc” at any time in an open meeting with no reasons given, or at a closed meeting in which no specific complaints are heard, even if relief is granted. If this litigation leads to a finding that the termination of Kent and Topie is null and void because of a violation of section 54957, subdivision (b)(2), it will be because the terminations were based on complaints heard at improperly noticed closed meetings. If the district then re-terminated Kent and Topie based on those same complaints, it would have to do so in a manner complying with the Brown Act, i.e., after hearing the complaints in an open session or in a properly noticed closed session. If the trial court finds the terminations were based on specific complaints heard in an improper meeting, subsequent re-terminations will still be based on those complaints. The district will not be able to make that basis vanish simply by terminating Kent and Topie again without stating or hearing reasons. It will have to hear the complaints properly.
We need not address the district’s contention that provisions of the Unemployment Insurance Code render inadmissible the documents in which the district made allegations of misconduct to the EDD. To survive a demurrer, allegations in a complaint or petition need not be based on admissible evidence. Problems of proof are irrelevant to the ruling on a demurrer. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Further, Kent and Topie have stated a cause of action even without the EDD allegations and exhibits. The petition states that Kent was given a letter containing specific complaints after being called in at the end of a closed session and that Topie was accused of misconduct at a closed session. These statements are sufficient to allege that the board terminated Kent and Topie based on specific complaints that it heard.
The district contends that, even if Kent and Topie have stated a cause of action against it, the dismissal should be affirmed with respect to the board members as individuals. We agree. The district states that the only remedy available is invalidation of the district’s action, and this runs against the district as an entity, not against the individual board members. In their opposition to the demurrer, Kent and Topie argued that the individual board members should not be dismissed because damages are available against them based on causes of action not set out in the petition, including defamation, which could be added by amendment. They have not repeated this argument or made any other response to the district’s argument in their appellate briefs, however, so we will treat the issue as waived by them on appeal.
In addition to costs on appeal, Kent and Topie request an award of “fees, ” presumably meaning attorneys’ fees. As they have asserted no basis for an award of attorneys’ fees, we will treat the issue as waived for purposes of the present appeal.
DISPOSITION
The order sustaining the demurrer and the judgment dismissing the petition are reversed with respect to defendant Lake Don Pedro Community Services District. The judgment dismissing the petition is affirmed with respect to the individual board member defendants. The matter is remanded to the superior court with directions to overrule the demurrer with respect to defendant Lake Don Pedro Community Services District. Plaintiffs Kent and Topie shall recover their costs on appeal from defendant Lake Don Pedro Community Services District.
WE CONCUR: Cornell, J., Poochigian, J.