The primary underlying issue in this case is whether an area historically known as “Skid Row”, which over time has been divided into two neighborhood councils- Downtown Los Angeles Neighborhood Council (DLANC) and Historic Cultural Neighborhood Council (HCNC) since the inception of the Neighborhood Council system in 2001, and as a result of the 1999 City Charter voter-approved ballot measure, should be reunified in the form of creating a new “Skid Row Neighborhood Council” in order to better facilitate City services to this long-marginalized community.

Petitioners contend that the law favors this creation function. The “Skid Row” district is a historic Los Angeles neighborhood over 100 years old whose boundaries were most recently confirmed and defined by the United States Court of Appeals for the Ninth Circuit, in Jones v. City of Los Angeles, 444 F. 3 rd 1118 (2006) as the area east of Main Street, South of Third Street, West of Alameda Street, and North of 7th Street.

A publicly funded election was held pursuant to Los Angeles City Ordinance 184526 (Exhibit “A”) on April 6, 2017 in order to determine if the Skid Row Neighborhood Council would be formed. The Petitioners were told their “side” (Skid Row Neighborhood Council-Formation Committee or “SRNC-FC”) lost the election by 60 votes, with 766 people voting for the new council formation and 826 voting against it. Petitioners dispute these results since the Department of Neighborhood Empowerment who was tasked with administering the election, has been unable to provide a coherent list of voters matching this tally, and the “on-line” votes cannot be verified without the documents for which a court order is sought herein.¹

In addition, to the issues of unverified “on-line” votes. Petitioners dispute the methodology used by the Defendants to organize and execute the election, and it is primarily these issues that are in dispute in this case.

II

“PRESUMABLY” UNDISPUTED FACTS
(See Declaration of Attorney Grant Beuchel)

1. The City of Los Angeles entered into a written contract with “Everyone Counts, Inc.” to perform, among other things, an “electronic online” election count to determine-if a portion within the current boundaries of the DLANC and a much smaller portion within the HCNC, should be relinquished to form a new “Skid Row Neighborhood Council”.

2. The Everyone Counts Inc., contract ran from June 23, 2015 through June 23, 2018. A copy of this contract (without Exhibits) is attached hereto as Exhibit “B”, the contents of which are incorporated herein by this reference.

3. A publicly funded election was held pursuant to Los Angeles City Ordinance No. 184526 (Exhibit “A”) on April 6, 2017 in order to determine if a new Skid Row Neighborhood Council could be formed. The election was certified May 19. 2017. Petitioners did challenge the election results within a timely manner, which ultimately resulted in this case being filed.

4. Defendants contend that before, during and after the election they did not have actual possession of any records which would substantiate the number of “yes” vs. “no” votes, or even a list of all voters who successfully cast a ballot because all of those records were in the possession of Everyone Counts Inc. Petitioners have no way of verifying if this is true or false.

5. The parties agree that the results of the paper ballots was 183 “yes” votes to 19 “no” votes.

6. Defendants contend that the total votes for the April 6. 2017 election (including paper ballots and all other votes) was 766 “Yes” and 826 “No”. Petitioners contend that this final tally is not correct for a multitude of reasons.

7. On April 10, 2017 Petitioners filed three (3) election challenges (See Exhibit “G”) and all 3 challenges were sustained by the “Election Challenge Review Panel” during a May 3. 2017 hearing.

8. Pursuant to the terms of the contract with Everyone Counts Inc., (Exhibit “B) the City became the “owner” of those records once the contract with Everyone Counts, Inc., “terminated”.

9. The contract terminated on or about June, 2018 but the City of Los Angeles claims they never took actual possession of the “Everyone Counts Inc.” documents (hereinafter ECD’s). Defendants contend those documents are still in the possession of Everyone Counts Inc.

10. Petitioners did make demand upon Defendants to preserve evidence by way of a written demand dated August 18, 2017 attached hereto as Exhibit “C”, the contents of which are incorporated herein by this reference.

11. Petitioners made a valid request for the production of the ECD’s to the City of Los Angeles. The City timely responded stating that they did not have actual possession of the documents (See Exhibit “E”) and Petitioners demanded further responses. (Exhibit “F”)

12. Defendants then reiterated that they did not have any further documentation and the parties agreed, in the spirit of cooperation, that Petitioners would subpoena the documents from Everyone Counts Inc., and Defendants would not object to the same.

13. Petitioner’s then did serve a subpoena on Everyone Counts, Inc., demanding production of the ECD’s but Everyone Counts, Inc., has not responded to the subpoena in a timely manner, and continues to not respond to the subpoena.

14. Petitioners, based on information and belief, contend that Everyone Counts, Inc. may be defunct although the corporation is still listed as “active” with the Secretary of State.

15. The parties do agree, based on information and belief, that Everyone Counts. Ine., may have been merged into another corporation named “Votem Inc.” on or about October of 2018, and that Everyone Counts Inc., may not have any active employees.

16. Votem Inc., is located in the State of Ohio.

17. The City of Los Angeles claims that it has attempted to contact Everyone Counts. Inc., directly to obtain the needed documents but as of the filing of this motion has been unable to obtain the requested records.

18. Petitioners contend that these records are crucial to prove that the Department of Neighborhood Empowerment (hereinafter “DONE”) acted without, or in excess of, its jurisdictional and statutory authority created by law, and that the failure to obtain these records would result in extreme prejudice against Petitioners.

19. The parties agree that the Petitioners are entitled to documents showing (a) who voted; (b) the date and time they voted; (c) the location where they voted (but not how they voted); and (d) how the final tally of votes (yes vs. no) were calculated.

PETITIONERS MADE A VALID DEMAND FOR PRODUCTION OF DOCUMENTS WITH DEFENDANTS RESPONDING THAT THEY DID NOT HAVE POSSESSION OF THE SAME

In approximately October of 2018, Petitioners did make a demand for production of a list of all persons who successfully cast a vote in the 2017 Skid Row election along with their name, email address, street address and/or other identifying information. The Defendants timely responded in November. 2018 stating that they did not have possession of requested documents. (See Exhibit “E” item #8). As is stated in the declaration of Grant Beuchel accompanying this motion, attorney Grant Beuchel spoke with attorney Patricia Ursea and it was agreed that Petitioners would subpoena the “Everyone Counts Inc.” records and that the Defendants would not object to the subpoena. Although the subpoena was served. Everyone Counts.. Inc. did not respond and is believed to be a defunct corporation despite the fact that it is still listed as “Active” with the Secretary of State.

In December, 2018 Petitioners made demand for “further responses” but the city has not provided the requested documents, and continue to claim they are not in possession of the same. (See Exhibit “F”)

Thus, Petitioners have done everything that could possibly be expected of them to obtain the documents without the need for this motion, and the Defendants did not preserve the documents despite the fact that Petitioners made a written demand for the same on August 18, 2017. (See Exhibit “C”)

IV

THE CITY OF LOS ANGELES HAD A DUTY TO PRESERVE ALL EVIDENCE THAT MIGHT PLAY A SIGNIFICANT ROLE IN THIS LITIGATION INCLUDING THE “EVERYONE COUNTS” DOCUMENTS

On August 18. 2017 Petitioners, through their attorney of record, made written demand upon the City of Los Angeles to “Preserve Evidence Pending Federal and State Civil Litigation Concerning the Skid Row Neighborhood Council Election”. (See Exhibit C, Page 1) Petitioners written demand to preserve evidence specifically stated:

You must diligently act to identity and preserve all potentially relevant sources of information. This includes the duty to identify to instruct Everyone Counts., Inc, to preserve all evidence . Your duty further includes the duty to instruct key personnel, like those in charge of DONE, to prevent the destruction or alteration of relevant evidence. (Emphasis Added)

Once the City became aware that the election results were in issue, which actually did occur 4 days after the election on April 10. 201 7 when Petitioners filed three (3) official election challenges 2 (See Exhibit “G”) the City became duty-bound to preserve evidence that “might be expected to play a significant role” in this case (See People vs. Lucas, 60 Cal.4th 153, 333 P.3d 587 (2014)) and certainly had an affirmative duty to protect from loss or destruction the ECD’s.

The City’s intentional or negligent failure to obtain, protect and preserve the ECD’s is the essence of their wrongdoing; constitutes a tortious interference with a prospective civil action by spoliation of evidence; and forms the basis for Petitioners request for a formidable remedy.

V

THE CITY APPEARS TO HAVE FAILED TO PRESERVE EVIDENCE FOR PROSPECTIVE CIVIL LITIGATION RESULTING IN EXTREME PREJUDICE TO PETITIONERS

Petitioners argue that the failure of the City of Los Angeles to lake actual possession of the ECD’s once the contract terminated on or about Juner 2018 constitutes a spoliation of evidence which was recognized by the Supreme Court as a potential tort in Smith v, Superior Court. 151 CA 3 rd . 491 (19841

Additionally, Petitioners demanded in writing by letter dated August 18, 2017 (Exhibit “C”) that the Defendants preserve evidence and specifically identified the Everyone Counts Inc., documents.

As the court stated in Smith , in pertinent part:

“The civil action for a tort is commenced and maintained by the injured person himself, and its purpose is to compensate him for the damage he has suffered, at the expense of the wrongdoer.”

Thus, it would appear that the appropriate remedy in this case must compensate Petitioners, and if necessary, at the expense of the City due to their wrongdoings, to wit, their failures to preserve evidence.

There are already numerous non-tort remedies for litigation-related misconduct that seek to punish and deter either the intentional or negligent spoliation of evidence, chief among these is the inference that Evidence Code Section 413 allows; Sanctions pursuant to CCP Section 2023.010; and finally criminal penalties are sometimes available, but Petitioners contend that none of these remedies are appropriate in this case and would not serve to compensate them.

Petitioners recognize the logic of the court in Cedars-Sinai Med. Center v. Superior Court 18 Cal. 4th 1. 11-13 (1998), concluding recognition of tort action for spoliation of evidence was not warranted in part because of the availability of adequate alternative remedies, but in the present situation Petitioners suggest that there are no alternative remedies in the classic sense. The documents supporting the vote tally are one of the primary issues in any case involving a disputed election – it’s simply key evidence – the case can’t survive without it.

Petitioners also recognize the logic of the court in Lueter v. State of California. 94 Cal.App.4th at pp. 1299-1300 holding that with respect to a public entity, it is not enough to find that the public entity had some sort of legal duty, but instead it must have the specific duty to preserve evidence and that is what should be addressed. As stated above, the City of Los Angeles was duty-bound to obtain, preserve and protect the ECD’s as early as August 18. 2017 when a written demand was made upon them by Petitioners. (See Exhibit “C”)

Tort remedies generally involve monetary compensations and/or the suppression of evidence, neither of which are appropriate remedies in this case. The City of Los Angeles cannot substantiate their final ‘online’ vote tally without producing the ECD’s they, apparently, are unable to produce and therefore the only undisputed and verifiable proof of outcome for the 2017 Skid Row Subdivision election is the paper ballot tally which was 183 “yes” votes to 19 “no” votes.

Further, Petitioners’ efforts in contesting the election results (See Exhibit “G”) led DONE to convening an “Election Challenge Review Panel” which did occur, and which heard several other challenges related to this election during a May 3, 2017 hearing. This panel was made up of three (3) Neighborhood Council board members, all chosen by DONE, from separate, and neutral, neighborhood councils. This panel recommended that:

… there shall be an independent investigation to determine if any laws were broken and how many votes were affected; if the number of votes is greater than the vote difference in the election, then the election result shall be overturned.(Emphasis Added)

DONE failed to honor the hearing panel’s recommendations, which included initiating an investigation, and that failure to investigate is one of the issues in this case, instead DONE simply certified the election – as is.

Also, both the City of Los Angeles and DONE failed to preserve the evidence needed to perform such an investigation, so Petitioners suggest that an alternative remedy is needed, and the law of equity demands it.

VI

THE LAW FAVORS THE CREATION OF NEIGHBORHOOD COUNCILS THAT ARE MORE ACCOUNTABLE TO THE AREA GROUPS AND STAKEHOLDERS IT SERVES

Section 22.810.1 of the Los Angeles Administrative Code creates a duty on the part of DONE to:

“Assist all groups and stakeholders seeking certification so they will have an equal opportunity to form and develop Neighborhood Councils.”

Article IX of the Los Angeles City Charter Section 900 “Purpose” also states in pertinent part:

“To promote more citizen participation in government and make government more responsive to local needs, a city wide system of neighborhood councils, and a Department of Neighborhood Empowerment is created. Neighborhood councils shall include representatives of the many diverse interests in communities and shall have an advisory role on issues of concern to the neighborhood. (Emphasis Added)

DONE is not a legal entity in and of itself, but rather an administrative agency —a subset of the City of Los Angeles. Thus, the duties created are upon the City of Los Angeles. It is important to note that a Neighborhood Council regardless of whether it is a Skid Row Neighborhood Council or any other Neighborhood Council such as DLANC, has only advisory roles and no other authority .

so there is no valid reason to prevent the relinquishing of the Skid Row area 4 (See Exhibit “D”) for its own Neighborhood Council from the DLANC and the HCNC since that area has specific needs that are not addressed by these larger Neighborhood Councils.

For all of the reasons set forth above, the law favors the creation of a new Skid Row
Neighborhood Council wdiich would be more accountable and responsive to the Skid Row area.

VII

CONCLUSION AND DEMAND FOR REMEDIES

Specifically, Petitioners ask the court to order the City of Los Angeles to produce the documents requested within thirty (30) days, and if they are unable to do so, craft an order with one or more of the following suggested remedies:

1) The City of Los Angeles is estopped from submitting the final vote tally into evidence, and the burden of proof to prove that the SRNC-FC lost the election is upon the City of Los Angeles;

2) Unless the City of Los Angeles can prove otherwise, without valid proof of online voting tabulations, the only verified vote tally is the paper ballot count- 183 “yes” votes and 19 “no” votes – and this should thereby be ruled as the official final vote count, thus ordering DONE to certify the Skid Row Neighborhood Council election based on this vote tally as final.

3) DONE be ordered to show specifically how the final tally was calculated, with documented and reliable evidence: and more specifically who voted, the date of the vote and the voting location – – the key being reliable evidence;

4) Order DONE to certify the election in favor of the SRNC-FC or show good cause as to why it should not do so;

4 The “Skid Row” district which is a historical neighborhood over 100 years old was defined by United States Court of Appeals for the Ninth Circuit, 444 F.3d 1118 (2006) as the area east of Main Street, South of Third Street, West of Alameda Street, and North of 7* Street.

5) Order DONE to sustain each of the three (3) election challenges filed by the SRNC-FC (See Exhibit “G”) which were previously sustained by the official ruling of the “Election Challenge Review Panel”, but overturned by DONE without initiating any investigation, despite the hearing panel’s recommendations to do-so;

6) Any further relief this court deems just under the circumstances.

7 Respectfully Submitted by:

Grant Beuchel, Attorney for petitioners