FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M.D., a minor, by and Nos. 14-56443
through her Guardian ad 14-56459
Litem, Jane Doe; JANE DOE,
an individual, D.C. No.
Plaintiffs-Appellants/ 8:14-cv-00394-JVS-AN
Cross-Appellees,
v. ORDER AND
AMENDED OPINION
NEWPORT-MESA UNIFIED
SCHOOL DISTRICT; JEFFREY
HUBBARD, an individual;
SUSAN ASTARITA, an
individual; KURT SUHR, an
Individual; CARI OTA, an
individual; JACQUE GALITSKI,
an individual,
Defendants-Appellees/
Cross-Appellants.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted August 5, 2016
Pasadena, California
Filed October 19, 2016
Amended November 18, 2016
2 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.
Before: Alex Kozinski and Kim McLane Wardlaw, Circuit
Judges, and Cathy Ann Bencivengo,* District Judge.
Order;
Per Curiam Opinion
SUMMARY**
Civil Rights/Attorney’s Fees
The panel reversed the district court’s denial of plaintiff’s
motion for relief from judgment under Federal Rule of Civil
Procedure 60(b)(1), and affirmed the district court’s denial of
a motion for attorney’s fees brought under the California
Public Records Act.
Plaintiffs sued their school district and its employees
alleging First Amendment retaliation under 42 U.S.C. § 1983,
as well as violations of the California Constitution and
California Public Records Act. Plaintiffs voluntarily
dismissed their state law claims and the district court
dismissed the First Amendment claim without prejudice, with
thirty days leave to amend. Plaintiffs failed to meet the filing
deadline and filed their Second Amended Complaint two days
late. Plaintiffs then moved for relief from judgment under
*
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 3
Federal Rule of Civil Procedure 60(b)(1), based on excusable
neglect.
The panel held that the district court’s decision could not
be supported by the record, and therefore the court abused its
discretion by denying plaintiffs relief from judgment. The
panel held that defendants were not prejudiced by plaintiffs’
two-day delay in filing the Second Amended Complaint, that
the length of the delay and its potential impact on the
proceedings were minimal, and that plaintiffs’ counsel simply
misunderstood a docket entry and made a calendaring error
of the type that is sometimes committed even by sophisticated
law firms.
Affirming the district court’s denial of attorney’s fees, the
panel held that plaintiffs’ California Public Record Act claim
was neither indisputably without merit nor prosecuted for an
improper motive.
COUNSEL
Mark S. Rosen (argued), Santa Ana, California, for Plaintiffs-
Appellants/Cross-Appellees.
Courtney L. Hylton (argued), S. Frank Harrell, and Ruben
Escobedo III, Lynberg & Watkins, APC, Orange, California
for Defendants-Appellees/Cross-Appellants.
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ORDER
The opinion filed on October 19, 2016, and published at
2016 WL 6091565, is amended by the opinion filed
concurrently with this order. No future petitions for rehearing
are allowed.
OPINION
PER CURIAM:
We consider whether the district court abused its
discretion by denying (1) plaintiffs’ motion for relief from
judgment under Federal Rule of Civil Procedure 60(b)(1), and
(2) the school district’s motion for attorney’s fees under the
California Public Records Act.
FACTS
Mary Doe, a fifth-grade student, and her mother, Jane,
sued their school district and its employees because Mary
allegedly experienced retaliation after Jane complained to the
school principal about Mary’s teacher. In their First
Amended Complaint (FAC), plaintiffs asserted a First
Amendment retaliation claim under 42 U.S.C. § 1983, as well
as violations of the California Constitution and California
Public Records Act (CPRA).
Plaintiffs voluntarily dismissed the last two claims after
the school district filed a motion to dismiss. The district
court then dismissed the First Amendment retaliation claim
without prejudice for failure to state a claim but gave
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 5
plaintiffs thirty days to amend. Plaintiffs failed to meet the
filing deadline, and the school district filed a proposed
judgment of dismissal the very next day. Plaintiffs filed their
Second Amended Complaint (SAC) the following day.
Several days later, the district court entered a final judgment;
it dismissed the FAC, citing plaintiffs’ failure to file the SAC
“within the time allowed.”
Plaintiffs moved for relief from judgment under Federal
Rule of Civil Procedure 60(b)(1) based on excusable neglect.
Plaintiffs’ trial counsel explained that he filed the SAC two
days late because he had miscalculated the filing deadline.
The district court’s dismissal order was originally docketed
as a minute order “in chambers.” Two days later, a notice of
clerical error was issued and the same order was re-docketed
as a separate entry. The trial counsel mistakenly believed that
the thirty-day clock began running after the clerical error was
corrected and, therefore, that the filing deadline was two days
later than it actually was. This was only his second case
using the federal court’s electronic case management system
(CM/ECF), because he primarily litigates in California
Superior Court, where he originally filed the case.
Nevertheless, the district court found that counsel’s neglect
was “not an excuse for missing [an] unambiguous deadline,”
and denied plaintiffs relief from judgment.
Meanwhile, the school district moved for attorney’s fees
under the CPRA. The district court found that plaintiffs’
CPRA claim was not “clearly frivolous,” and therefore denied
the school district its fees. Cal. Gov’t Code § 6259(d).
Plaintiffs, now represented by new counsel, appeal both
the district court’s judgment of dismissal and the order
denying relief from judgment. Defendants cross-appeal a
6 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.
portion of the dismissal order and the order denying
attorney’s fees.
DISCUSSION
I
When making an “excusable neglect” determination under
Federal Rule of Civil Procedure 60(b)(1), the court must
consider “all relevant circumstances,” Pioneer Inv. Servs. Co.
v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993),
including “at least four factors: (1) the danger of prejudice to
the opposing party; (2) the length of the delay and its
potential impact on the proceedings; (3) the reason for the
delay; and (4) whether the movant acted in good faith,”
Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th
Cir. 2000) (citing Pioneer, 507 U.S. at 395). Although the
district court identified the four Pioneer factors, it denied
plaintiffs’ motion for relief from judgment after analyzing
only their reason for the late filing. The court said nothing
about the remaining three factors.
The district court may consider the Pioneer factors
without discussing how much weight it gives to each. See
Lemoge v. United States, 587 F.3d 1188, 1194 (9th Cir.
2009). But when the district court fails to discuss some of the
factors, we must determine whether the omitted factors could
reasonably support the district court’s conclusion. See
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th
Cir. 2010); Bateman, 231 F.3d at 1224. Even giving the
district court the benefit of the doubt, we can’t see how the
balance of the Pioneer factors supports the district court’s
decision.
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 7
First, defendants were not prejudiced by plaintiffs’ two-
day delay in filing the SAC. We asked about this at oral
argument, and counsel for the school district’s only response
was that judgment had been entered. Oral Arg. at
16:28–17:37, available at https://youtu.be/rp07S0uI-EI.
Defendants may lose a “quick but unmerited victory,” but
“we do not consider [this] prejudicial.” Ahanchian, 624 F.3d
at 1262.
Second, the length of the delay and its potential impact on
the proceedings were minimal. The delay was only for two
days; we have found far longer delays excusable under Rule
60(b)(1). See, e.g., id. (three-day delay in filing an opposition
to summary judgment); Bateman, 231 F.3d at 1223 (twelve-
day delay in requesting a rescission of the summary judgment
order and over a month-long delay in filing a Rule 60(b)
motion). The two-day delay would not have changed the
course of the proceedings. If anything, it was the school
district’s eagerness for a “gotcha” victory that has kept the
case from advancing on the merits.
Third, there is no evidence that plaintiffs’ trial counsel
concocted a “post-hoc rationalization . . . to secure additional
time,” Ahanchian, 624 F.3d at 1262, or otherwise acted with
bad faith. A lack of familiarity with CM/ECF may be a poor
excuse but it doesn’t show bad faith. See Lemoge, 587 F.3d
at 1197 (finding no bad faith where the “errors resulted from
negligence and carelessness, not from deviousness or
willfulness” (citation and internal quotation marks omitted)).
The question remains whether the single factor that the
district court weighed against granting relief can by itself
justify the district court’s decision. This is not a case where
counsel’s neglect is so egregious that it outweighs the
8 M.D. V. NEWPORT-MESA UNIFIED SCH. DIST.
remaining three factors. Plaintiffs’ trial counsel simply
misunderstood a docket entry and made a calendaring error
of the type that is sometimes committed even by sophisticated
law firms. See, e.g., Pincay v. Andrews, 389 F.3d 853, 855,
858–60 (9th Cir. 2004) (en banc) (affirming the district
court’s finding of excusable neglect where a sophisticated law
firm made a calendaring error based on a paralegal’s
misreading of Federal Rule of Appellate Procedure 4).
Indeed, the court’s own clerk, who presumably deals with
CM/ECF on a daily basis, committed a filing error and had to
re-file the order two days later. If the trial counsel’s neglect
here was not excusable, it’s hard to see when neglect would
ever be excusable.
Because the district court’s decision cannot be supported
by the record, we hold that it abused its discretion by denying
plaintiffs relief from judgment under Rule 60(b)(1). Because
we reverse the district court’s denial of relief from judgment,
we do not review the district court’s dismissal of the FAC.
II
Under the California Public Records Act, the school
district is entitled to attorney’s fees only if plaintiffs’ claim
was “clearly frivolous.” Cal. Gov’t Code § 6259(d).
Although the term “clearly frivolous” isn’t defined in the
statute, California courts have held that an action is
“frivolous” only when it (1) “lack[s] any merit,” or (2) is
“prosecuted for an improper motive,” such as harassing or
creating delay. Bertoli v. City of Sebastopol, 182 Cal. Rptr.
3d 308, 320 (Ct. App. 2015) (internal quotation marks and
citations omitted) (adopting in the CPRA context the standard
for frivolousness announced in In re Marriage of Flaherty,
646 P.2d 179, 187 (Cal. 1982)).
M.D. V. NEWPORT-MESA UNIFIED SCH. DIST. 9
Plaintiffs’ claim was not indisputably meritless.
According to the FAC, plaintiffs requested that the school
district provide videos of Board of Education meetings, but
received only an edited version. Plaintiffs sought to obtain
the full, unedited version under the CPRA. See Cal. Gov’t
Code § 6258. Whether plaintiffs were entitled to the withheld
portions of the videos under the CPRA was an open question
that required further factfinding. Because at this motion to
dismiss stage, “no attorney could have been certain about the
outcome of the issue,” we cannot say plaintiffs’ claim was
clearly frivolous. Crews v. Willows Unified Sch. Dist.,
159 Cal. Rptr. 3d 484, 496 (Ct. App. 2013); see id. at 495–96
(holding that the plaintiff’s petition wasn’t frivolous when it
was used to secure documents that were withheld under
claims of exemption or privilege, and to challenge the format
in which the documents were produced).
Nor is there evidence that plaintiffs brought the claim for
an improper motive. The school district argues that
plaintiffs’ refusal to dismiss their CPRA claim after they
allegedly admitted to having obtained access to the full
version of the videos evinces improper motive. As an initial
matter, it’s unclear whether a CPRA claim that was not
frivolous when filed can become frivolous later. But even if
it’s possible, plaintiffs didn’t maintain the claim for very
long; plaintiffs relinquished their CPRA claim in their
opposition papers, filed only two weeks after allegedly
admitting that the videos were fully available. Given
plaintiffs’ prompt voluntary dismissal, the district court
properly found that plaintiffs acted with good faith.
Plaintiffs’ CPRA claim was neither indisputably without
merit nor prosecuted for an improper motive. Accordingly,
we affirm the district court’s denial of fees.
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* * *
The district court’s denial of relief from judgment is
REVERSED, and its denial of attorney’s fees under the
CPRA is AFFIRMED. The case is REMANDED with
instruction that the district court accept the filing of the SAC.
The parties shall bear their own costs on appeal.