HOLLOWAY v. SAN LORENZO VALLEY WATER DISTRICT, et al.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

session: May 2, 20242; June 27, 2024; August 15, 2024; September 5, 2024; and September 19, 2024. (Petition, Exhibits B, H, J, K, L.) Petitioner further claims that agreeing to compensation for the General Manager cannot be conducted at a special meeting, which is the type of meeting employed here. Petitioner contends the District failed to use proper safe harbor language for several meetings related to Frus’ departure when it listed closed sessions for litigation. Petitioner argues the District also failed to properly report out of closed session when they finalized the Frus settlement agreement.

Following petitioner’s demand for the District to cure the alleged Brown Act violations, the District held two more meetings – which petitioner also contends were improper – since the District used the same safe harbor language for the Brown Act’s litigation exception. (Petition Exs. M, N.)

Finally, petitioner argues the District violated the California Public Records Act when it claimed closed session voting records did not exist, and refused to produce Frus’s litigation demand, an unredacted public meeting video, and a billing invoice from a law firm that conducted legal work for the District.

The petition states two causes of action, one for violation of the Brown Act and one for violation of the Public Records Act, and seeks orders essentially declaring respondent violated the Brown Act by taking action related to Frus’ departure in secret and routinely holding closed sessions with inaccurate safe harbor descriptions. Petitioner seeks orders nullifying the Frus settlement agreement and requiring him to return all monies paid to him under it. Petitioner also seeks orders requiring in camera review of all documents, reports, minutes, transcripts, and tapes of respondent’s closed sessions from June to October 20233 to determine whether it complied with the Brown Act and requiring it to tape record its closed sessions for three years, and disclosure of all records sought by petitioner.

As explained below, petitioner’s central argument comes from an incorrect premise – that Frus was a potential plaintiff against the District, thereby rendering the District’s litigation closed session notices in five District meetings improper. Instead, what is clear from the District’s evidence is that it was unclear who the plaintiff(s) were; there were complaints from other employee(s) about Frus, rendering him a potential defendant along with the District, and requiring a personnel investigation conducted by outside counsel. In only one instance can it be determined that Frus was known to be a likely plaintiff, but the Court finds any faulty closed session notice substantially complied or was cured.

II. LEGAL STANDARDS

2 Petitioner does not raise any objections to the closed session procedure for this meeting. 3 The petition seeks a review of 2023 meetings but the Court assumes that is an error. (Petition at p. 17.)

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

The Brown Act authorizes closed sessions in several instances, including meetings to consider litigation and personnel matters. (Government Code §§ 54956.9, 54957, subd. (b)(1).)4 The Brown Act requires that closed session business be described on the public agenda and provides “safe harbor” language for agenda descriptions that when used, preclude legal challenges to the adequacy of the description. (§ 54954.5.) “Statutory exceptions authorizing closed sessions of legislative bodies are construed narrowly and the Brown Act ‘sunshine law’ is construed liberally in favor of openness in conducting public business.” (Shapiro v.

San Diego City Council (2002) 96 Cal.App.4th 904, 917.) Under section 54957, the public has the right to be present at the location of the closed session and also has the right under section 54954.3 to address the district regarding any agendized closed session items prior to the district adjourning into closed session.

After a closed session, the legislative body must reconvene the public meeting and publicly report certain types of actions if they were taken and the vote on those actions. (§ 54957.1.) In general, only final action on a matter need be reported (e.g., an agreement to buy property, settlement of a lawsuit where the other party has signed the agreement, acceptance of a resignation, etc.). For example, the dismissal or nonrenewal of an employment contract is not reported until the first public meeting following exhaustion of administrative remedies, if any.

Once final approval occurs, the agency must disclose the action taken “upon inquiry by any person.” (§§ 54957.1, 54957.7.) Copies of contracts, settlement agreements, or other documents finalized in closed session must be made available within 24 hours of the action, or, in the case of substantial amendments or retyping, when complete. (§§ 54957.1, 54957.7.)

A. Nullification of public agency action

Individuals may bring an action for mandamus, injunction, or declaratory relief to stop or prevent violations or threatened violations of the Brown Act, or to determine the application of the Brown Act to actions or threatened future actions of the local agency. (§ 54960, subd. (a).) Individuals may also bring an action for mandamus or injunction to nullify a local agency action taken in violation of the Brown Act. (§ 54960.1, subd. (a).) However, no action for nullification may be filed until the local agency is notified of the alleged violation and given an opportunity to cure or correct the challenged action. (§ 54960.1, subd. (b).)

An action shall not be nullified if it was taken in connection with an agreement. (§ 54960.1, subd. (d)(2).) If the agency cures or corrects the alleged violation, any nullification action “shall be dismissed with prejudice.” (§ 54960.1, subd. (e).) Any action taken to cure or correct a prior action “shall not be construed or admissible as evidence of a violation” of the Brown Act. (§ 54960.1, subd. (f).)

4 All future statutory references are to the Government Code unless otherwise stated.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

Prejudice must be shown to obtain nullification. (See Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360, 372 [“Plaintiffs give us no reason to repudiate the rule that an action will not be invalidated for violation of the Brown Act absent a showing of prejudice”]; Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 517; Galbiso v. Orosi Public Utility Dist (2010) 182 Cal.App.4th 652, 671; Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556; Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569, 592 fn. 17). Where petitioner has had a full and fair opportunity to present his views at a public hearing, no prejudice can be shown. (Fowler v. City of Lafayette, supra, 46 Cal.App.5th at p. 372; Cohan v. City of Thousand Oaks, supra, 30 Cal.App.4th at p. 556.)

Audio recording of closed sessions is not required unless a court orders such recording after finding a closed session violation. (§ 54960.)

III. DISCUSSION

A. Brown Act claims

Petitioner’s main argument is that the litigation safe harbor language used was improper since the District knew that the facts giving rise to the potential litigation were known to the potential plaintiff. This is only partially true here. The Court finds that while the District should have disclosed more information for one meeting, there is little to no evidence supporting petitioner’s arguments and he has not shown prejudice. Therefore, nullification of the District’s action is not required.

1. Brown Act safe harbor language for litigation

A closed session is appropriate to discuss (1) threatened litigation against the district; (2) potential exposure to litigation; (3) potential initiation of litigation; and (4) existing litigation. A local agency may describe closed sessions on its agenda with basic, summary information. (§§ 54954.2, 54954.5.) Depending on the circumstances, the agency may be required to also provide information on the agenda or in an oral statement that complies with section 54956.9(e)(2) to (5); essentially, when the district believes facts are known to the potential plaintiff, it must provide that information.

The litigation exception permits a “legislative body of a local agency, based on advice of its legal counsel,” to hold “a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” (§ 54956.9, subd. (a).) Litigation is “considered pending when . . . [¶] . . . [¶] . . . [a] point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

existing facts and circumstances, there is a significant exposure to litigation against the local agency.” (§ 54956.9, subd. (d)(2).) The statute defines “ ‘existing facts and circumstances’” to include “[t]he receipt of . . . some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.” (§ 54956.9, subd. (e)(3).) 5 “[A]s ‘emphasized’ in the Attorney General’s manual on the Brown Act, ‘the purpose of [section 54956.9] is to permit the body to receive legal advice and make litigation decisions only; it is not to be used as a subterfuge to reach nonlitigation oriented policy decisions.’” (Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172, 186.)

Based on the District’s evidence in opposition, the Court finds it employed appropriate closed session safe harbor language related to the litigation exception for the meetings of June 27, 2024, August 15, 2024, October 3, 2024, and October 17, 2024. Those meetings required closed sessions to discuss employee complaints against Frus (and potentially others). (Brennan Declaration ¶¶ 7-8, 34-35, 38-39.) The August 15, 2024, closed session concerned two potential matters relating to the ongoing personnel investigation into complaints made by employees against other employees; there is no evidence before the Court that the District or its counsel believed facts were known to the potential plaintiff. (Brennan Decl. ¶¶ 14-18.) Using the safe harbor language that identified an unknown litigation threat appears appropriate.

However, the meeting of September 5, 2024 appears to have involved Frus’ claim(s) against the District. (Brennan Decl. ¶¶ 11-16, 25-26.) In this situation, the safe harbor language used was incorrect or at least facts and circumstances should have been announced. The District knew that Frus made claims as the potential plaintiff. Ideally, it should have added language to its closed session notice or made an announcement identifying the facts that might result in litigation, or disclosed the written communication, if there was one.

The Court finds, however, that the language used substantially complied with the Brown Act since it correctly identified the substance of the closed session -- anticipated litigation. There can be no dispute that the public was duly informed of the nature of the closed session and the failure to list or announce the facts and circumstances here did not detract from that. Further, as discussed below, any error was cured and petitioner has no evidence of prejudice to require nullification of the District’s action.

2. Brown Act safe harbor language for personnel

The special meetings of August 23 and 27, 2024, included closed sessions related to personnel matters with 24-hour notice (special, as opposed to regular, meetings) (“Public Employment (Gov. Code, § 54957) Title: Interim General Manager”). The regular meetings of

5 The court notes that petitioner has cited an earlier version of section 54956.9, prior to its revision in 2021.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

September 5 and 19, 2024, included safe harbor language for “public employee appointment” related to the Interim General Manager position.

The personnel exception does not authorize action on proposed compensation in closed session, except for a reduction in pay as a result of proposed disciplinary action. Reviewing an employee’s job performance and making threshold decisions about whether any salary increase should be granted is permissible for closed session, but any action concerning the amount of any salary increase must be held in open session. (§ 54957.6; San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 956 [two-step process: closed session for evaluation of performance or appointment, and open session for setting employee’s salary].)

There is no law preventing agencies from discussing, on 24-hour notice, hiring personnel. Based on the language employed by respondent, the Court finds the special meetings of August 23 and 27, 2024, were compliant since they describe the title of the position to be filled; note they did not specify performance, discipline, dismissal or release, and the minutes reflect the District’s efforts to hire another interim general manager. While petitioner argues these were improper closed session notices because the District was in ongoing negotiations with Frus, the District was not required to, and did not, agendize anything related to those negotiations when it was also discussing hiring a new general manager. For the purpose of discussing appointing a new general manager, the September 5 and 19, 2024 meetings also used appropriate safe harbor language.

3. Frus settlement agreement is not compensation

Petitioner argues without legal authority that the settlement agreement is a modification of Frus’ employment agreement that created a new financial obligation, and it was therefore required to use the same open meeting and public notice as the meeting in which the District hired him. (Opening Brief at p. 9.) Again, any salary increase may be discussed in closed session, but any action to approve a salary increase must be held in open session and not on the consent agenda. (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 956.) “‘Compensation’ means annual salary, stipend, or bonus, paid by a local agency employer to a local agency executive.” (§ 3511.1, subd. (a).)

Frus’ initial employment contract included an annual base salary of $185,000.00, an initial term of six months and one day, and a bonus of $20,000.00 upon completion of that initial term. In the event of termination without cause prior to the end of the term, Frus was entitled to a lump sum payment of the prorated base salary that would have been paid if the term was completed, including any bonus. (Petition, Ex. A.) The District and Frus agreed to extend his initial term by two months on May 2, 2024 (Petition, Ex. B), but the District thereafter did not

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

extend his term, resulting in his employment ending on August 21, 2024. (Brennan Decl. ¶¶ 11- 16).

The settlement agreement – executed by the parties after Frus’ separation -- resulted in Frus’ “resignation” as of August 21, 2024, and payments to him of $69,375.00 (W-2 income) and $17,500.00 (reimbursement for legal costs, 1099-MISC income). (Petition, Ex. E.) In exchange for this consideration, Frus waived all claims against the District. Because Frus was already separated at the time of the payments to him, the payments to him are not “compensation” as defined by the Government Code. Petitioner conceded this in his cure and correct demand letter. (Petition, Ex. R [“the severance agreement appears to be a settlement of threatened litigation”].) Since it was not compensation, there was no requirement that the District conduct discussions as to that agreement in an open session.

Further, the character of the agreement is that of a settlement, not an employment agreement, since it provided for a monetary payment in exchange for new consideration not previously bargained for. Public agencies may enter into such agreements. (Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 489; Miller v. City of Sacramento (1977) 66 Cal.App.3d 863, 871-872.)

4. Nullification of the settlement agreement is not warranted

On September 20, 2024, the District received petitioner’s cure and correct demand under the Brown Act, asserting that the Board failed to properly report its actions. (Torres Decl. ¶ 16; Petition ¶ 24, Ex. R.) Petitioner’s cure demand listed the alleged violation as “failing to report ‘the fact’ of Board approval of the severance agreement at its September 5 meeting as well as the votes of individual Directors on it.” (Petition, Ex. R.) But by that time, petitioner admits the Board had made the settlement agreement public. (Ibid.) Also by then, the Board publicly disclosed the approval of the settlement and the vote count following open session discussion in which petitioner participated. (Petition, Exs. H, R; Torres Decl. ¶ 12, Ex. I.) These facts do no support nullification.

Nullification is also not warranted since petitioner has not shown any evidence of prejudice and without such evidence, the Court may not invalidate the District’s action. “[A] violation of the Brown Act will not automatically invalidate an action taken by a local agency or legislative body. The facts must show, in addition, that there was prejudice caused by the alleged violation. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555–556 [35 Cal.Rptr.2d 782]; North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1433 [83 Cal.Rptr.3d 636].) ‘Even where a plaintiff has satisfied the threshold procedural requirements to set aside an agency’s action, Brown Act violations will not necessarily ‘invalidate a decision. [Citation.] Appellants must show prejudice.’ [Citation.]’ (San Lorenzo Valley Community

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1410 [44 Cal.Rptr.3d 128].)” (Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 670-671 [emphasis in original].)

Petitioner’s reply concedes that he personally suffered no prejudice; instead, he claims the prejudice is structural. He argues that the public had no opportunity to weigh in on a decision that committed their funds to a departing executive in an amount the District was not entitled to pay. But as discussed, the District has the authority to enter into settlements of disputed claims, which is what the Court finds happened here.

More importantly, an action taken allegedly in violation of section 54954.5 (closed session descriptions) shall not be determined null and void if the action taken was in connection with an agreement or if the agenda item was in substantial compliance with section 54954.5. (§ 54960.1, subd. (d)(2); Furtado v. Sierra Cmty. College (1998) 68 Cal.App.4th 876, 883.) The Court finds both are true here.

B. Public Records Act claims

Petitioner argues he requested four categories of documents which the District failed to properly respond to: the vote on the settlement agreement, any claim or litigation threat from Frus, the unredacted video of the September 19, 2024, public meeting, and the outside law firm’s invoice from 2022. (Petition Exs. G, I, O, P.)

First, the Court finds the District’s response to petitioner’s September 16, 2024 request for the settlement agreement vote was appropriate because there was no actual document to produce. (Petition Ex. G.) The Public Records Act (“Act”) does not require the creation of documents, only the production of documents that already exist. (Gov. Code, § 7920.530; Freedom Foundation v. Superior Court (2022) 87 Cal.App.5th 47, 58.) As of September 16, 2024, there was no record of any vote to disclose and its response to that effect was appropriate based on the circumstances.

On reply, petitioner argues that the District president’s email to petitioner that the vote was confidential establishes the existence of a documented vote. It does not. Closed session votes may be reflected in closed session minutes if the agency elects to keep them, but it is not required. (§ 54957.2, subd. (a).) Even if the District did keep such minutes, they are confidential. (County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1106-1107.)

Second, petitioner requested “any claims or threats of litigation during 2024 by Brian Frus or his representatives against SLVWD.” The District responded that “any claim submitted by or against an employee [...] is a confidential personnel record not subject to public disclosure, pursuant to Government Code section 7927.700.” (Petition Ex. O) The Act exempts from

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” (§ 7927.700.) The record before the Court does not include any indication that Mr. Frus made a written claim or threat of litigation, only that Mr. Frus’ counsel made a demand for payment. (Brennan Decl. ¶ 19.) Petitioner argues that the District did not deny the document existed, but instead claimed it was exempt. (Opening Brief at p. 11.) That is not what the District did.

The District never acknowledged any Frus claim but described that any such claim would be considered a personnel record. While the burden to establish an exemption is on the public agency seeking to withhold the record, there must first be evidence the record exists. Petitioner’s argument without evidence -- that the District’s response establishes a Frus claim existed and that it was wrongly withheld – does not make it so; there simply is no evidence that such a document exists.

Third, the unredacted video from the September 19, 2024, meeting was appropriately withheld since legal advice to the District from its counsel was inadvertently disclosed in open session (Brennan Decl. ¶ 31), and the District is entitled to keep that attorney-client information privileged and confidential. (§ 7927.705; Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373; Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1187, 1189.) The District promptly rectified the error by removing the video, redacted only the disclosure, and re-posted the redacted video. (Torres Decl. ¶¶ 14, 15.)

Petitioner’s argument on reply that the “statement at issue was made intentionally at a public meeting by a Board member, before a public audience, on the public record,” is without evidentiary support and is disregarded. (Reply at p. 10.) But even if a Board member did intentionally disclose a confidential communication from closed session without the Board’s approval, the District has remedies to claw back that information, including injunctive relief to prevent the disclosure, or disciplinary action against an employee or member of the body. (§ 54963, subd. (a).)

Finally, petitioner requested an “invoice from Van Dermyden Markus Law Corp. which was paid on 8/22.” (Petition, Ex. I.) The District interpreted this to refer to an invoice paid on August 22, 2024, since it had engaged the firm on June 27, 2024 to conduct an internal personnel investigation. The District properly asserted the attorney-client privilege regarding the August 2024 invoice since it included entries detailing legal work provided. (Torres Decl. ¶ 21; Los Angeles County Bd. of Supervisors v.

Superior Court (2016) 2 Cal.5th 282, 297-298.) While the petition failed to specify the request (other than to include it as Ex. I), petitioner’s opening brief insists the request was for a 2022 invoice. (Opening Brief at p. 19.) However, the District asserts it had not previously engaged the firm and therefore no responsive records exist. (Torres Decl. ¶ 20.) On reply, petitioner (realizing his mistake that no 2022 invoice was at issue) argues that by the time of the request (October 23, 2024) the Van Dermyden Markus Law Corp.’s internal investigation was concluded since the Frus settlement agreement was fully executed in September 2024.

But again, there is no evidence to support that argument. It is entirely possible

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 29, 2026 TIME: 8:30 A.M.

that the personnel investigation which involved multiple employee claims was ongoing and thus, protected by the attorney-client privilege.

Based on these findings, petitioner’s writ as to the four categories of public records is denied.