Opening Brief Filed In Chinatown BID Public Records Act Lawsuit — A Powerful Statement Of The Intense Public Interest In Understanding This Shadowy Criminal Conspiracy — And What It Is Doing With The Public Money That Funds It — Neither George Yu Nor Anyone From The BID Has Responded To Anything — Or Participated In Any Way At All In The Petition Against Them — Trial Is Set For July 24 2019 At 9:30 AM — Stanley Mosk Courthouse Department 86

Last August Katherine McNenny and I filed a suit against the Chinatown Business Improvement District because not only did they refuse to provide us with the public records we’d asked for repeatedly but they refused to respond at all. Their bossboy, George Yu, was, you may recall, deeply implicated in the 2017 zillionaire conspiracy against the Skid Row Neighborhood Council formation effort, so they clearly had and, we hope, still have, a lot of really essential information.

But George Yu and his criminal cronies at the BID, I guess true to the pattern they’d established with respect to the requests themselves, refused to respond in any way to the lawsuit. They didn’t reply to the petition, they ignored the discovery, they didn’t show up for the hearing on the motion to expedite hearing of the motion to compel them to answer the damn discovery,1 and so on. But the case rolls on, and on Friday, May 24, our lawyers filed an absolutely stunning opening brief.2

You can read transcribed selections below and here’s a super-short summary. The Chinatown BID is a major player in municipal politics. This includes George’s Yu’s participation in the conspiracy against the Skid Row Neighborhood Council. Through our CPRA requests we sought to understand the BID’s role in this and their relationship with the City in general.

The BID failed to respond at all to these requests and that violates the California Public Records Act. Therefore the court should require the BID to produce the records. We’re also asking the court to declare that the BID’s actions violated the CPRA3 and to issue an injunction against the BID violating the law in this manner in the future. Finally, we’re asking the court to order the BID to pay our attorneys for their work on our case.

Transcription of the opening brief:4

I. INTRODUCTION

This is an action to enforce the California Public Records Act (“CPRA”) against Respondent and Defendant Los Angeles Chinatown Business Council, a.k.a. the Greater Chinatown Business Improvement District (“Respondent” or “the BID”). Petitioners and Plaintiffs Katherine McNenny and Adrian Riskin (“Petitioners”) repeatedly requested easy-to-provide public records subject to mandatory disclosure under the CPRA. Petitioners sought these records to better understand the BID’s part in opposing the formation of the Skid Row Neighborhood Council (“SRNC”), as well as the BID’s role as a political actor in Los Angeles generally.

Petitioners made various attempts to request these public records by email, certified mail, and telephone. Nevertheless, the BID ignored Petitioners’ communications entirely and failed to respond at all to any of their requests. Petitioners were left with no choice but to file the present action in order to enforce their rights under the law. Even after Petitioners filed suit, Respondent has failed to engage in litigation. Respondent failed to file a responsive pleading, failed to appear at multiple trial-setting conferences, ignored Petitioners’ discovery requests, and failed to respond to all communications from Petitioners’ counsel. In so doing, the BID continues to demonstrate its hostility toward the CPRA and transparency in public business.

Petitioners respectfully request from this Court: 1) a writ of mandate which orders Respondent to, within 30 days of the issuance of the writ of mandate, produce all disclosable requested records to Petitioners; 2) a declaration that Respondent’s conduct denying access to public records violates the CPRA; and 3) a permanent injunction enjoining Respondent, its agents, employees, officers, and representatives from continuing its existing pattern and practice of violating the CPRA and ordering Respondent to track and report to the Court and to the public on its responses to public records requests for a period of time not less than one year. Additionally, Petitioners request that the Court declare them to be the prevailing party entitled to an award of attorneys’ fees and costs, the exact amount of which to be set upon motion for attorneys’ fees.

II. FACTUAL SUMMARY

A. Background on the BID and the Skid Row Neighborhood Council

This litigation concerns CPRA requests that Petitioners submitted to Respondent, a nonprofit corporation that contracts with the City of Los Angeles to manage the Greater Chinatown Business Improvement District. The BID obtains revenue from assessments to parcels of real property which the City of Los Angeles collects and disburses to the BID. Respondent and its Board of Directors are subject to the CPRA under both its contract with the City of Los Angeles and pursuant to California Streets and Highways Code § 36612.

There are 97 neighborhood councils across the City of Los Angeles, each receiving public funds, that assist communities in working with local government to address community needs. In late 2016, residents of Skid Row, many of whom are homeless, sought to create their own neighborhood council to increase their political representation in the city. The proposed SRNC bylaws guaranteed multiple council board seats to low-income renters and/or unhoused individuals, as well as to those providing services to those communities. An election to vote on the establishment of the SRNC was scheduled from March 29, 2017 to April 6, 2017.

A variety of business interests, including many Los Angeles BIDs, joined together in the organization United Downtown LA, LLC (“United DTLA”) to lobby against the formation of the SRNC. After a controversial election, which was later the subject of litigation, the SRNC’s formation was narrowly defeated. Petitioners obtained records from various CPRA requests which suggested that Respondent was likely among those BIDs participating in the effort to defeat SRNC. Petitioners submitted the public records requests that are the subject of this litigation in order to better understand Respondent’s role in United DTLA, its opposition to the SRNC, and its general role as a political actor in Los Angeles.

B. The BID failed to produce Petitioners’ requested records

1. The BID ignored McNenny’s CPRA requests

On May 28, 2017, McNenny submitted a CPRA request to Respondent to the email address listed on Respondent’s website: info@chinatownla.com. The request (“McNenny Request 1”) sought two categories of records dated from January 1, 2017 to May 28, 2017: (1) all BID emails which contained an enumerated list of keywords related to the SRNC election, and (2) all BID emails to and/or from certain named individuals involved in the SRNC election.

The BID did not respond to McNenny’s request within 10 days with a determination of disclosability and estimated date of production, as required by Cal. Gov’t Code § 6253(c). Indeed, Respondent did not reply to McNenny’s request at all. On June 15, 2017, McNenny sent another email to Respondent to inquire as to the status of her request. She notified Respondent that it had not complied with its legal duty to respond to her request within 10 days of receipt. Again, the BID did not respond to McNenny.

After months of the BID’s continued silence, McNenny sent another email to Respondent inquiring as to the status of her request on May 5, 2018. She asked that Respondent provide a response to her request and comply with the law “so this matter can be resolved without legal action.” Additionally, McNenny requested further records showing the staff and/or individuals who were authorized to conduct business on behalf of the BID from January 1, 2017 to May 28, 2017 (“McNenny Request 2”). (Id.) Yet again, Respondent failed to respond to McNenny’s communication.

On July 2, 2018, undersigned counsel telephoned Respondent at the telephone number listed on the BID’s website. There was no answer, so counsel left a voice message inquiring as to the proper location to submit CPRA requests. Counsel provided her telephone number for a response. Nevertheless, the BID again failed to reply.

Rather than proceeding directly to litigation, McNenny attempted yet another avenue of contact with the BID. On July 23, 2018, she sent her CPRA requests to Respondent via certified mail to the mailing address listed on the BID’s website. This mailing address is also the address Respondent registered with the California Secretary of State for service of process. In McNenny’s letter, she stated that, if she did not receive a response by close of business on July 27, 2018, she would understand the lack of response to be the BID’s refusal to provide records. The letter was delivered on July 25, 2018. Yet again, the BID provided no response to McNenny.

On July 25, 2018, McNenny sent yet another email to the BID, repeating her requests and imploring Respondent to provide the requested records promptly “so this matter can be resolved without legal action.” (Petition f 18.) True to form, Respondent did not reply to this email.

In sum, over the course of 14 months, McNenny attempted to request records from the BID via email, telephone, and certified mail. Despite these diligent attempts to induce the BID to comply with the law, the BID ignored all of McNenny’s communications and failed to produce even one public record. With no other options available, McNenny filed the instant suit on August 15, 2018.

C. The BID has failed to at all participate the present litigation

Petitioners initiated suit in this matter on August 15, 2018. Respondent was personally served process on August 17, 2018. The BID’s deadline to file a responsive pleading was September 17, 2018. The BID did not file a responsive pleading.

Moreover, the BID has failed to appear at three separate trial setting conferences — on November 16, 2018, December 26, 2018, and February 1, 2019. The BID failed to produce any responses to Petitioners’ Discovery Set One or to Petitioners’ attempt to meet and confer about the BID’s lack of discovery response, necessitating Petitioners to file a motion to compel. The BID has also failed to respond to various communications from Petitioners’ counsel to discuss a possible resolution to the present litigation. In short, the BID has failed to engage in the present litigation in any way whatsoever, further demonstrating its disregard for public transparency and its legal obligations under the CPRA.

III. LEGAL ARGUMENT

A. Because Respondent failed to submit a responsive pleading, all facts Petitioners allege should be deemed uncontroverted and true

Although a respondent’s failure to file a responsive pleading does not require a peremptory writ to be granted by default, the factual allegations in the petition may be deemed uncontroverted and true if no responsive pleading is filed.

Here, Respondent failed to file any return, let alone within 30 days as required by law. All of Petitioners’ factual allegations in the Petition should therefore be deemed uncontroverted and true.

B. Respondent unlawfully withheld all records responsive to Petitioners’ CPRA requests

Respondent unlawfully withheld all public records requested by Petitioners and violated various other duties under the CPRA. The BID withheld clearly-disclosable public records for over 14 months prior to litigation and has continued to withhold such records for the more than 9 months that have passed since litigation commenced. By completely ignoring Petitioners’ requests for records for nearly two years, Respondent effectively makes secret the BID’s operations, shields the BID from public accountability, and frustrates the democratic process. Particularly given Respondent’s suspected involvement in the defeat of the SRNC, which prevented some of Los Angeles’ most disenfranchised residents from exercising political power, the public interest in the requested records is great. Given Respondent’s failure to even acknowledge Petitioners’ requests and their tacit refusal to produce any public records, the present litigation is necessary to enforce Petitioners’ rights under the CPRA.

3. The BID violated all of its legal duties under the CPRA

Petitioners submitted five total requests for clearly-identifiable, disclosable records that would shed light on the BID’s exercise of political power in Los Angeles. For each request, Respondent denied all access to public records through its pattern and practice of total nonresponse.

Respondent failed its duty to respond to Petitioners’ requests within 10 days of receipt with a determination of disclosability. Respondent failed its duty to notify Petitioners
within 10 days of receiving their requests of the estimated date and time when any disclosable records would be made available. See id. Respondent failed its duty to notify Petitioners that it was withholding records in response to their requests. Respondent failed its duty to notify Petitioners of the names and titles or positions of each individual responsible for its ultimate denial of their request for records. Respondent failed its duty to conduct a reasonable search for Petitioners’ requested records. Respondent failed its duty to make all non-exempt requested records “promptly” available. Respondent failed its duty to assist Petitioners with their requests and to provide suggestions for overcoming any practical basis for denying access to records. And Respondent failed its duty to not delay or obstruct Petitioners’ receipt of disclosable public records.

Most critically, Respondent failed its duty to provide access to public records by withholding all requested records through its total nonresponse to Petitioners’ requests. Despite Petitioners’ repeated follow-up communications via email, telephone, and certified mail, the BID has failed to provide any response to their CPRA requests for nearly two full years. The BID’s complete and unjustified refusal to provide even one requested public record demonstrates its hostility to democratic transparency and blatantly violates the CPRA.

C. Petitioners’ requested relief is appropriate

As detailed above, Respondent is continuing to withhold all the public records that Petitioners requested, all of which are subject to mandatory production under the CPRA. As such, a writ of mandate is necessary

Moreover, declaratory relief is appropriate in the present case. Declaratory relief is appropriate where an “actual controversy” exists. An “actual controversy” includes a probable future controversy, so long as the controversy is ripe. Whether a future controversy is probable can turn on whether evidence shows that a respondent will continue the offending practice. A court can presume a Respondent will continue an offending practice in light of a Respondent’s refusal to admit the violation. Here, not only has the BID failed to admit any violation of the CPRA, the BID has failed to engage in this litigation in any way whatsoever, demonstrating a total disregard for transparency in public business and for its legal obligations under the CPRA. It is therefore extremely likely that the BID will continue to show the same indifference to the CPRA in the future. Declaratory relief is warranted and should issue.

Petitioners’ requested injunctive relief is also appropriate. Injunctive relief is properly granted where there is a need for prospective relief. Here, Respondent’s ongoing enmity toward the CPRA and its refusal to engage in the present litigation indicates that it has no intention of altering its practice of unlawfully denying all access to its public records. The BID treated the requests from both Petitioners—two separate requestors submitting requests approximately one year apart—with equal disregard, indicating that it indiscriminately ignores many, if not all, of the public records requests it receives. In the absence of injunctive relief, Petitioners and the public at large are likely to face ongoing harm in the form of continued lack of access to the BID’s public records and total lack of transparency over the BID’s political and lobbying efforts in Los Angeles. Injunctive relief is therefore appropriate.

Finally, the CPRA mandates that the Court “shall” award costs and reasonable attorneys’ fees to a requestor who prevails in litigation. The purpose of that provision is to provide “protections and incentives for members of the public to seek judicial enforcement of their right to inspect public records subject to disclosure.” A plaintiff “prevails” under the CPRA where she shows that an agency unlawfully denied access to records. Even partial relief entitles a plaintiff to a fee award, unless the results are “so minimal or insignificant as to justify a finding that the plaintiff did not [in fact] prevail.” Here,
Respondent clearly unlawfully denied access to records. The BID has failed to produce even a single record in response to Petitioners’ five requests for over 14 months prior to litigation and ignored Petitioners’ multiple follow-up communications through various points of contact. The BID’s conduct plainly shows that it had no intention to produce records. Even after litigation, the BID has expressed a total disregard for the law and has continued to withhold all requested records. Petitioners have clearly prevailed.

Even in the unlikely event that records responsive to Petitioners’ requests have been deleted or otherwise become unavailable in the nearly two years since Petitioners’ initial request, this would not moot the present litigation. Thus, if the Court finds that the records Petitioners requested are subject to disclosure under the CPRA and that Respondent did not provide those records to Petitioners, Petitioners have prevailed. To find otherwise would incentivize public agencies to delay and ignore requests, as Respondent has, knowing they could immunize themselves from liability when public records are deleted as a matter of course in the meantime. As such, Petitioners request that the Court declare them the prevailing party entitled to attorneys’ fees, with the exact amount to be set after submission of evidence with a motion for attorneys’ fees.

IV. CONCLUSION

The public’s right to know, expressed in statute, Constitution, case law, and voter initiative, is well established in California. Here, the BID has flouted the public’s right to transparency by maintaining total secrecy over its public business for nearly two years. The BID has repeatedly and blatantly shirked its responsibilities under the CPRA—failing to comply with procedural requirements, failing to conduct a reasonable search for records, failing to produce even one of the disclosable public records Petitioners requested, and failing to engage even minimally in the present litigation. Petitioners therefore respectfully request that their Petition and Complaint be granted.

DATED: May 18,2019

ANNA VON HERRMANN

Attorney for Petitioners and Plaintiffs


Image of renowned legal genius George Yu is ©2019 MichaelKohlhaas.Org. Something something cough cough…

  1. According to Noam Chomsky and probably any number of other theorists, its unbounded recursive potential is one of the defining features of natural human language and, if I hadn’t already believed this, my exposure to legal writing would certainly have convinced me of it. Like I said, we had a motion to expedite hearing of the motion to compel, and if they weren’t such damn head-in-the-sanders the BID would file a response in opposition to the motion to expedite the hearing of the motion to compel and then we would file a reply to the response in opposition to the motion to expedite the hearing of the motion to compel and then the judge would file an order whose name, if I were to type it here, might break the Internet but would certainly cause my hosting costs to go up, and so on. I am absolutely not complaining. Legal writing, despite its bad rep, is one of my absolutely favorite genres!
  2. The general pattern in one of these cases is that it starts out with a petitioner, the person who’s trying to enforce rights under the CPRA, filing a petition. This is a brief statement of the facts and possibly some argument and background. Ideally then the respondent, which is the person who allegedly violated the CPRA, files a brief answer to the petition. Then there may or may not be discovery, there’s a brief hearing to set the trial date and agree to various other things, this is the trial-setting conference. Then the petitioner’s opening brief is typically due 60 days before trial, the respondent’s response to that is due 30 days before trial, and the petitioner can file an answer to that 15 days before the trial.
  3. Which is so-called declaratory relief, defined by the Wiki as “a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute”
  4. Lightly edited in that I’ve removed a lot of citations to various cases. You can look at the original PDF if you need to see those.
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