Tag Archives: California Court of Appeal

Court Summarily Denies Fashion District’s Idiotic Petition Appealing The Fact That They Lost My Damn Public Records Suit Against Them — It’s True That The City Of Los Angeles Unconditionally Bows Down Before These BIDdies But The Rest Of The World Clearly Isn’t So Impressed With Their Nonsense — There’s A Lesson In That For Them But Evidently They Aren’t Learning It

This is just the quickest of quick little posts with no purpose beyond reminding you that (a) I am suing the Fashion District BID over public records and (b) they lost the damn suit in July 2019 and (c) they had an embarrassingly toys-from-pram moment and filed a stupidly intemperate appeal less than two weeks ago. Well, today, this very day, September 30, their appeal was summarily denied by the court in a terse two sentence order which could be translated from the legalese as something like “stop wasting our damn time and get out of my office you civically illiterate six-fingered morons.”

So that’s another fifty grand or so in public tax money, burned at the altar of their narcissistic self-regard by Rena Leddy, Mark Chatoff, and the rest of the Fashionista BIDdies.1 If only their lawyer, the weirdly angry Carol L. Humiston, would advise them in their own best interest to stop fooling about wasting other people’s money and hand over the damn records, which they’re ultimately going to be forced to do anyway, well, the world would be better off, but then I guess we wouldn’t have all these interesting blog posts! Stay tuned for round infinity, friends, cause you know it’s on the agenda!
Continue reading Court Summarily Denies Fashion District’s Idiotic Petition Appealing The Fact That They Lost My Damn Public Records Suit Against Them — It’s True That The City Of Los Angeles Unconditionally Bows Down Before These BIDdies But The Rest Of The World Clearly Isn’t So Impressed With Their Nonsense — There’s A Lesson In That For Them But Evidently They Aren’t Learning It

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Fashion District BID Refuses To Accept The Fact That Judge Mitchell Beckloff Ruled Against Them In My Current Public Records Suit — So On Monday They Appealed The Ruling — Here’s A Copy Of Their Appeal Brief — But No Commentary Because At This Point The Details Are Beyond Me

This is just the briefest of brief little notes to announce that the Fashion District BID, which I was forced to sue because of their surreally intransigent refusal to comply with the damn law, and which got ruled against in July by Judge Mitchell Beckloff, is doubling down on their nonsense by appealing Beckloff’s decision! Here’s a copy of their brief and, as evidently even Bradley & Gmelich can see that unhinged BID attorney Carol Humiston is not to be trusted, they’ve brought in a ringer, Dawn Cushman, to write the damn thing.

At this point the issues are chasing one another’s tails in some high-altitude lawyerly empyrean hypersphere where normal folks like me can’t even breathe, let alone provide color commentary. I can’t even transcribe selections because who knows what to select?! Although even despite my ignorance I’m perfectly able to mock Cushman’s turgid and repetitive prose!1 So here’s a link to the brief they filed, and I’ll let you know if anything comprehensible happens!
Continue reading Fashion District BID Refuses To Accept The Fact That Judge Mitchell Beckloff Ruled Against Them In My Current Public Records Suit — So On Monday They Appealed The Ruling — Here’s A Copy Of Their Appeal Brief — But No Commentary Because At This Point The Details Are Beyond Me

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SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees

Senator Maria Elena Durazo filed SB-749, amending the California Public Records Act, last month, but it was only on Wednesday that it was amended away from a placeholder. The fleshed-out bill addresses two problems with the California Public Records Act.

First, it would state that “records relating to wages, benefits, working hours, and other employment terms and conditions of employees working for a private industry employer pursuant to a contract with a state or local agency shall not be deemed to be trade secrets under the act.” In my experience it’s fairly common for local agencies to claim that records like this are exempt. Sometimes they claim that they’re trade secrets1 and sometimes that they’re material found in personnel files.2

That last claim is pretty clearly bogus, so probably the more serious obstructionists rely more on claims of trade secrets. For instance I had this happen to me with the Fashion District BID in the person of Rena Leddy, who refused to tell me the hourly rates of the BID’s renewal consultant, Urban Place Consulting. That is, until a kindly lawyer sent them a not-so-kindly demand letter on my behalf. Then they coughed the goods right up.3 So if the bill passes with this bit intact they won’t be able to do that any more, and the personnel file claim is functionally a non-starter, so that’ll be good.

Incidentally, while I understand the danger of letting the perfect be an enemy to the good, I would still just like to say that the problem being solved here is at best a minor particular instance of a much larger family of problems involving records owned by private contractors who are working for public agencies. That is, that the agencies can write the contracts so that the contractor owns the records and the agency explicitly does not have access to them.

The Hollywood Property Owners’ Alliance famously did exactly this in 2016 with the Andrews International BID Patrol. Kerry Morrison even admitted under oath that the purpose of the change was to thwart my CPRA requests. And the judge ruled that it was allowable under California law for them to do this, and even to make the change retroactive.

But such is not the law in every state. For instance, Florida Statutes section 119.0701 makes pretty much all records generated by private contractors subject to the CPRA if they relate to work done for a public agency. It’s a really powerful, really beautiful statute. We need a version here, and this bill is not it. But it’s not bad.

The second issue addressed by Durazo’s bill has to do with reverse CPRA actions. In these suits a third party, e.g. a police union, sues to prevent a public agency from releasing records to a requester. The Court of Appeal held last year that the third party is liable for the requester’s fees if they lose, and this bill would formalize that finding by putting it into the statute. The bill also requires that the requester be brought into a reverse CPRA action as a party, I assume so that the case can’t be heard without the requester’s input.

And finally, and this may be the most powerful part, the law would forbid a court from ordering that a record be withheld if the order is based on a discretionary exemption. But most of the exemptions are discretionary. In fact I kind of think that all of them are, but maybe there’s something I don’t understand. This clause alone will make it harder to win reverse CPRA actions, as it should be. Turn the page for a transcription of the legislative counsel’s digest and the proposed new statutory language.
Continue reading SB749 — Maria Elena Durazo’s Proposed Changes To The California Public Records Act Would Fix Two Problems — First — Local Agencies Often Claim That Records Generated By Their Private Contractors Are Exempt As Trade Secrets — This Bill Would State That Such Information Relating To Employment Conditions Is Not In Fact A Trade Secret — Second — This Bill Would Require That Requesters Are Named As Parties In All So-Called Reverse CPRA Actions — In Which A Third Party Sues To Prevent Record Release — And Would Require Parties Who Initiate Unsuccessful Reverse CPRA Actions To Pay Requester’s Fees

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The Los Angeles City Council Violated The Brown Act Prior To Its Hearing On Designation Of Parker Center As A Historic-Cultural Monument — Huizar Staff Evidently Polled All Other Council Offices To Learn How They Would Vote — Which Constitutes An Illegal Serial Meeting According To The California Attorney General And The Court Of Appeals — If Little Tokyo Bigwig Kristin Fukushima Is To Be Believed, Anyway — And Why Would She Lie?

In his 2017 rush to destroy Parker Center, not only did José Huizar direct his staff to organize a series of phony performances of public support at various hearings as part of a twisted quid pro quo deal with various Little Tokyo luminaries, but on February 13, 2017 or thereabouts his office also violated California’s open meeting law, the Brown Act, by polling all the other Council offices on how they intended to vote the next day on the designation of the building as a historic-cultural monument.

The evidence is right here in this email conversation between Kristin Fukushima, Little Tokyo anti-Parker-Center coconspirator, and Gerald Gubatan, who is Gil Cedillo’s planning director:1

On Mon, Feb 13, 2017 at 2:03 PM, Kristin Fukushima <kristin@littletokyola.org> wrote:

Hi everyone,

Gerald, just letting you know – I spoke with CD 14 this morning, and apparently they checked in with all the offices and have confirmed that they are expecting everyone on City Council tomorrow to vote in approval of PLUM’s recommendation against HCM nomination for Parker Center. To be safe, a handful of us will still be there tomorrow, but good news nonetheless!

Thanks!

If she’s telling the truth about CD14 checking in with all the offices, and why would she not be, then the City Council violated the Brown Act by holding a meeting that the public had no access to. It’s not surprising, of course. We’ve seen significant circumstantial evidence that such violations happen regularly, but man, has it been hard to claw that proof out of the City.2

This kind of lawless behavior in no way seems uncharacteristic of Huizar. It wouldn’t have seemed so even before his enormous capacity for lawlessness and illicitry was made even more manifest than anyone could have expected.3 Sadly, there’s nothing at all to be done about it at this point. The Brown Act has very short built-in time limitations for taking action, and this is far past all of them.

By the way, it may not seem obvious that a staff member from one Council office contacting all the other offices and asking how they’re planning to vote on an agenda item constitutes a meeting, but it’s clear under the law that it does. For all the wonky details, laid out in full wonky splendor, turn the page. You know you wanna!
Continue reading The Los Angeles City Council Violated The Brown Act Prior To Its Hearing On Designation Of Parker Center As A Historic-Cultural Monument — Huizar Staff Evidently Polled All Other Council Offices To Learn How They Would Vote — Which Constitutes An Illegal Serial Meeting According To The California Attorney General And The Court Of Appeals — If Little Tokyo Bigwig Kristin Fukushima Is To Be Believed, Anyway — And Why Would She Lie?

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The Checkered History Of Streets And Highways Code §36612 — How The California Court Of Appeals Made BIDs Cry By Holding That They Were Subject To The Brown Act And The Public Records Act — And How Bad BIDmother Jackie Goldberg Soothed Their Hurt Feelings By Passing A Law Stating That They Weren’t Public Officials — Is It Constitutional? — It Hasn’t Been Adjudicated So Who Knows?!

The only reason that this blog even exists is that business improvement districts in California are subject to the California Public Records Act. And the first part of the story of how this came to be is fairly well known. In 1998 Hollywood property owner Aaron Epstein wanted to attend meetings of the Hollywood Property Owners’ Alliance1 and Kerry Morrison, who then as now would willingly brook no interference in her proprietary demesne, told him to go pound sand.

Instead of slapping the silica, though, Epstein filed suit against the BID, and the process culminated in the lovely holding, in Epstein v. Hollywood Entertainment District BID, that BIDs2 were subject to the Brown Act and the CPRA. This ushered anti-BID activists into a paradise from which we are unlikely to be expelled. Kerry Morrison didn’t take this outcome with any grace whatsoever and has been pissing and moaning about it from the outset all the way to the present day.

But that opinion isn’t the only authority that subjects BIDs to transparency laws. There is also the famous §36612 of the PBID Law of 1994, which states in no uncertain terms that BIDs are subject to both the Brown Act and the CPRA.3 It also states explicitly (and ominously) that BID board members and staff are not public officials. Obviously this section was added by the legislature after the Epstein ruling, but I never took the time to investigate the history.

Until now, that is. And what an obvious-after-the-fact surprise it was to find that the bill that added that section was written by none other than Jackie Goldberg, who as CD13 Councilmember during the formation of the Hollywood Entertainment District BID was known to have a great deal of blood on her hands already.4 But by March 2001, when Epstein was finally decided, Goldberg was in the Assembly, so naturally it was to her that the BIDdies, emotionally traumatized by the court’s decision,5 went running for comfort.

And in response to their pleas Goldberg introduced AB 1021 (2001) to coat the bitter pill of Epstein with some soothing syrup and to codify these changes in §36612 of the PBID law even while acknowledging that the legislature wasn’t going to be able to change the court’s holding 6 And I recently obtained a copy of the bill analysis prepared at the time for the Assembly’s Committee on Local Government to help them understand what they were voting for.7 Therein are laid out not only the provisions of the new law, but the complaints of the BIDdies, so the connection is perfectly clear.

The main concessions to the BIDdie agenda found in the code section are the explicit statement that BIDs are private corporations and that neither BID boards nor staff can be considered public officials for any reason. This last bit is tied in to the BIDs’ fear that board members might be subject to California’s political reform act and to Government Code §1090 and therefore to various ethics restrictions and financial disclosure requirements, although it’s not really clear to me that the language has that effect. I’m no kind of expert, though.

Another sop to the BIDdies provided here by Goldberg was the authorization of 10 year renewals. Previously BIDs could only renew for up to five years. In any case, turn the page for more detail, more non-expert discussion and, as always, a transcription of the document.
Continue reading The Checkered History Of Streets And Highways Code §36612 — How The California Court Of Appeals Made BIDs Cry By Holding That They Were Subject To The Brown Act And The Public Records Act — And How Bad BIDmother Jackie Goldberg Soothed Their Hurt Feelings By Passing A Law Stating That They Weren’t Public Officials — Is It Constitutional? — It Hasn’t Been Adjudicated So Who Knows?!

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In 1995 The City Attorney And The Fair Political Practices Commission Both Agreed That BIDs Were Government Agencies And Their Board Members Were Public Officials Subject To The Brown Act And The CPRA — So When Aaron Epstein Sued The City And The Hollywood BID In 1999 Why Did The City Take Kerry Morrison’s Side Even Though They Already Knew Epstein Was Right? — Probably Yet Another Case Of Yielding To Her Every Damn Whim No Matter How Dire The Consequences — Ironically The Same Lawyer, Patricia Tubert, Argued Both Contradictory Sides Of The Dispute

I’ve written many times about the monumental case Epstein v. Hollywood Entertainment District BID and will, I have no doubt, write about it many more times to come. The issue in 1998 was that Hollywood property owner Aaron Epstein thought that he ought to be able to attend BID meetings whereas executive director Kerry Morrison, then at the very dawn of her BIDdological career but as characteristically secretive as ever, refused to let him in to watch his money being spent.

He sued in 1999, claiming that the BID1 was required to comply with the Brown Act by virtue of §54952(c)(1)(A), which makes an entity of the following type subject to its transparency requirements:

A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that … [i]s created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

The case yielded a monumental opinion from the Court of Appeal, dripping with sarcasm and barely disguised contempt for the weak arguments of the defendants. It’s worth reading in its entirety, or take a look here for selections. But for our purposes here it’s enough to know that both the BID, driven by Ms. Kerry Morrison and her absolute disgust at the possibility of public oversight of her publicly funded activities, and the City of Los Angeles in the person of then-deputy-City-Attorney Patricia Tubert, argued vehemently that the BID was not in any way subject to the Brown Act.

So what a surprise it was, the other day, to obtain a copy of this 1995 report from the Los Angeles City Attorney, authored by none other than Patricia Tubert, which explicitly stated that in the opinion of the City Attorney BIDs were in fact subject to the Brown Act, exactly as the Court of Appeal ruled in 2001 over the City’s objections. And attached to this report was a 1994 opinion issued by the Fair Political Practices Commission in response to an explicit request from none other than the Los Angeles City Attorney which reached precisely the same conclusion.

And not only that but both agencies agreed that BID board members are in fact public officials with respect to these laws and also subject to state prohibitions on conflicts of interest.2 So it’s really a mystery now why in 1998 when Aaron Epstein wanted to attend BID meetings the City of Los Angeles didn’t just tell Kerry Morrison and her infernal board of directors that they had to let him in. Why they spent three long and undoubtedly expensive years defending a position that they already knew to be wrong.

At this late date and because the attorney client privilege between the City and the City Attorney is doubtlessly implicated, we are probably never going to know for sure why they made the obviously wrong decision to defend an indefensible position. But if they were thinking about Kerry Morrison and her weirdo schemes back then like they are now, and why wouldn’t they have been, they wouldn’t have needed any more of a reason beyond Kerry Morrison’s request. Shameful. And harmful. But not a surprise. Turn the page for selected transcriptions.
Continue reading In 1995 The City Attorney And The Fair Political Practices Commission Both Agreed That BIDs Were Government Agencies And Their Board Members Were Public Officials Subject To The Brown Act And The CPRA — So When Aaron Epstein Sued The City And The Hollywood BID In 1999 Why Did The City Take Kerry Morrison’s Side Even Though They Already Knew Epstein Was Right? — Probably Yet Another Case Of Yielding To Her Every Damn Whim No Matter How Dire The Consequences — Ironically The Same Lawyer, Patricia Tubert, Argued Both Contradictory Sides Of The Dispute

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ACLU And Eric Preven Score Huge California Supreme Court CPRA Victory Against Los Angeles County Over Release Of Attorney Invoices

Eric Preven is not only winning huge CPRA victories, he is also running for mayor of Los Angeles.
Last week local hero and candidate for mayor Eric Preven along with the ACLU of Southern California won a major victory for CPRA rights in the California Supreme Court. This was well-covered by both the ACLU and the Los Angeles Times. The main point of this post is to make available some of the paperwork from the case, but here’s how the ACLU summarized the issues:

Today, the California Supreme Court affirmed the public’s right to access government billing records with private law firms, overturning a previous appeals court ruling in a California Public Records Act (CPRA) case brought against Los Angeles County.

L.A. County should now release the invoices for all closed cases, so that the public can learn how much taxpayer money is going to private lawyers to defend the county and its employees, including the many cases against the Los Angeles Sheriff’s Department for brutality against inmates in the county jails.

In 2013, the ACLU Foundation of Southern California … and … Eric Preven … sued the county demanding that it and the Office of County Counsel release invoices detailing the amounts of money billed by private law firms in lawsuits filed against the sheriff’s department and its personnel. The laws​uit, ACLU/Preven v. Los Angeles County, came after county counsel denied several CPRA requests for the documents that list the amounts billed by private attorneys, which are paid by county taxpayers.In the opinion the court rejected the county’s argument that attorney-client privilege extends to government invoices with private legal counsel in closed cases, writing that “contents of an invoice are privileged only if they either communicate information for the purpose of consultation or risk exposing information.”

And turn the page to download bunches of pleadings in the case, including the Supreme Court opinion.
Continue reading ACLU And Eric Preven Score Huge California Supreme Court CPRA Victory Against Los Angeles County Over Release Of Attorney Invoices

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2014 VBBID Emails Reveal, Among Other Things, That Bonin Staffer Debbie Dyner Harris Was On Venice Beach BID Steering Committee Since 2014 Despite Consistent Denials of City Involvement In Formation Process

Mike Bonin aide and Fairy godmother Debbie Dyner Harris posing with what will be left of her darling Venice Beach BID after the clock strikes the appointed hour.
Mike Bonin aide and Fairy godmother Debbie Dyner Harris posing with what will be left of her darling Venice Beach BID after the clock strikes the appointed hour.
Here are eleven pages of emails from 2014 released to me yesterday by Miranda Paster of the Los Angeles City Clerk’s office.1 These provide a unique2 window into the process by which BIDs are created in the City of Los Angeles. It’s clear from these emails that, despite the fact that everyone in the City government denies it, the BID formation process is encouraged, facilitated, and inextricably interwoven with City action at every stage. Of course, this confirms precisely what the California Court of Appeal found in its landmark decision in Epstein v. HPOA: that “by giving the BID the legal breath of life, the City breathe[s] life into the POA as well.”3

In any case, here are many, many interesting facts newly revealed by these emails:
Continue reading 2014 VBBID Emails Reveal, Among Other Things, That Bonin Staffer Debbie Dyner Harris Was On Venice Beach BID Steering Committee Since 2014 Despite Consistent Denials of City Involvement In Formation Process

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February 5, 2003: The Very First Known Public Records Act Ever Received by the HPOA and Kerry Morrison was Already Offended

Kerry Morrison on February 18, 2016, the 13th anniversary of her receipt of an offensive letter from a lawyer regarding the very first known CPRA request to the HPOA.
Kerry Morrison on February 18, 2016, the 13th anniversary of her receipt of an “offensive” letter from a lawyer regarding the very first known CPRA request to the HPOA.
Electronic versions of the HPOA Board of Directors minutes from 1996 through 2006 haven’t been retained by the HPOA, so while waiting on physical copies1 to publish here, I’m taking advantage of good old section 6253(a) of CPRA,2 which tells us that:

Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.

Consequently, last Thursday I went over to HPOA secret headquarters on Hollywood Boulevard to read through this material, something I plan to make a regular habit of doing.
Justice Walter Croskey wrote the landmark 2001 opinion in Epstein v. Hollywood Entertainment District BID.
Justice Walter Croskey wrote the landmark 2001 opinion in Epstein v. Hollywood Entertainment District BID.
And there is much fascinating material there, not least of which is the complete unfolding in real time of Aaron Epstein’s epic lawsuit against the HPOA. This ended, of course, in a landmark 2001 decision by the Second District of the California Court of Appeal making BIDs subject to both the Brown Act and CPRA. That story is woven through years and years worth of minutes, so it must wait for the copies to arrive. However, I was able to photograph3 a description of the very first CPRA request known to have been received by the HPOA (on February 5, 2003).

Read on for what it said:
Continue reading February 5, 2003: The Very First Known Public Records Act Ever Received by the HPOA and Kerry Morrison was Already Offended

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