Los Osos Water Users Warning
The CSD's been fixing our water lines and in my neighborhood, at least, we've had increased water pressure. In my case the increased pressure likely goofed up the toilet-tank water level, thereby causing the water to silently, stealthly slip over the overflow tube with absolutely no way you'd know or hear anything for a couple of months, until you get your water bill and find out you’d run up a heck of a water bill increase, or even possibly screwed up your septic system or notice one of your bushes is looking astonishingly green and tall lately, so you have to start looking for a leak in your irrigation system and such like.
So, if you've noticed an increase in water pressure in your neighborhood, do check your toilet tanks (reset to at least 1 1/2" below the top of the tube) , and keep a sharp eye out for hidden under-sink water pipes to check for small leaks (if your water pressure's been low for years, an increase may cause small leaks in old pipes & etc.) or else the shock to your wallet or floors or septic system may be way larger than you can imagine.
Thursday, October 30, 2008
Wednesday, October 29, 2008
Tentative Ruling on PZLDF Case
The PZLDF case will be discussed today at 9 a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) It appears that , for now, the case can proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings or unrulings Judge LaBarbera will make this morning remains to be seen.
As for the problem with the RWQCB's "Official Administrative Record," I say good luck to anybody trying to untagle that mess. The bungled ACL and CDO hearings had so many starts and stops and ins and outs and yes and nos and we dont' knows and incorporations by reference, yes/no, wait, that part but not that part, is it in? out?, regarding what was and wasn't part of the official record that the whole bungled mess resembles a Gordian Knot. Let's hope, at least, that a whole lot of stuff that was missing from the "Official Record," but was supposed to be in, at least gets put back in.
CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.
Preliminary Ruling on PZLDF Case
The PZLDF case will be discussed today at 9a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) I appears that the case can now proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings Judge LaBarbera will make this morning remains to be seen.
CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.
The PZLDF case will be discussed today at 9 a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) It appears that , for now, the case can proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings or unrulings Judge LaBarbera will make this morning remains to be seen.
As for the problem with the RWQCB's "Official Administrative Record," I say good luck to anybody trying to untagle that mess. The bungled ACL and CDO hearings had so many starts and stops and ins and outs and yes and nos and we dont' knows and incorporations by reference, yes/no, wait, that part but not that part, is it in? out?, regarding what was and wasn't part of the official record that the whole bungled mess resembles a Gordian Knot. Let's hope, at least, that a whole lot of stuff that was missing from the "Official Record," but was supposed to be in, at least gets put back in.
CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.
Preliminary Ruling on PZLDF Case
The PZLDF case will be discussed today at 9a..m. (not clear whether it’s at the Vets Hall or Downtown at this point.) I appears that the case can now proceed on the CEQA complaint, or, on the lack of CEQA. What further rulings Judge LaBarbera will make this morning remains to be seen.
CV070472/ Prohibition Zone et al., v Regional Water Quality Control Board:
RE: Demurrer/Motion to Strike/Motion to Augment Administrative Record/Motion for CD #1040
TENTATIVE RULING DEMURRER
The Regional Water Quality Control Board demurs to the Amendment to the Second Amended Petition for Writ of Mandamus.
The Amendment was prepared as a result of the court’s grant of leave to amend the Second Cause of Action seeking traditional mandate pursuant to CCP §1085. The scope of leave was limited to the second cause of action and the petitioner was required to succinctly allege a mandatory duty on the part of the Board.
Respondent’s contention that traditional mandate is not available as a remedy is somewhat misplaced. Water Code §13330 provides that “[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional board in the superior court ( id., § 13330, subd. (b), italics added), and “[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section” ( id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. See City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1409
“Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus.” (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. ( Id. at p. 1068.) City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1408
If a party is aggrieved by a quasi-judicial decision made by a Regional Board for which the state board denies review, CCP §1094.5 governs the proceedings. However, there are narrow circumstances where the action of a board can be the subject of a petition for traditional writ of mandate. Those circumstances require a mandatory duty and, in the example set forth in Arcadia, a quasi-legislative act that is not reviewable by the state board.
Although Petitioners were granted leave to allege specific mandatory duties of the regional board, the Amendment of the Second Cause of Action fails to allege a viable cause of action for review pursuant to CCP §1085.The Amendment: The paragraphs of the amendment attempt to list a number of purported mandatory duties on the part of the Board.
¶86 alleges that the issuance of Notices of Violation contained threats that constitute illegal electioneering in violation of Elections Code §§18540 (a) and 18501.
Every person who makes use of or threatens to make use of any force, violence, or tactic of coercion or intimidation, to induce or compel any other person to vote or refrain from voting at any election or to vote or refrain from voting for any particular person or measure at any election, or because any person voted or refrained from voting at any election or voted or refrained from voting for any particular person or measure at any election is guilty of a felony punishable by imprisonment in the state prison for 16 months or two or three years. Elections Code §18540(a)
Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may be perpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state prison for 16 months or two or three years. Elections Code §18501
These statutes prohibit coercion or intimidation in the election process. They also provide criminal remedies for violations of the Elections Code. Here, the offending provisions of the Notices of Violation state, in part, that if the wastewater plant does not proceed or “fails to meet certain milestones (including a benefit assessment)” then the septic system discharge would have to be eliminated by 2011.
The prayer of the petition seeks to invalidate these Notices of Violation. According to the Regional Board, the Notices of Violation have no legal effect. If this is correct, there is no necessity to invalidate them. Moreover, petitioners do not seek to invalidate the election approving the benefits assessment nor is there any criminal sanction being sought.
¶87 seeks judicial review of so called “CAO’s”(clean up and abatement orders). Petitioners contend that the CAO’s are presented under the guise of “settlement agreements.” No basis for CCP §1085 review of settlement agreements is alleged, particularly where none of the petitioners are parties to the agreements. Moreover, no basis for relief in relation to the potential of future issuance of CAO’s is alleged. According to the complaint, Petitioners Payne and DerGaribedian were potential parties to a CAO. However, they refused to sign the proffered agreements. No other allegations establish that any petitioner is a party to a settlement agreement.
¶¶89 through 100 allege various improprieties of the Regional Board in failing to observe proper administrative hearing procedures in issuing the “cease and desist” orders that are subject of the review.
For example, ¶90 states that Water Code §185 requires the Regional Board to adopt rules to conduct its affairs in conformity, as nearly as practicable, with the provisions of Chapter 4.5. In an effort to challenge 23 CCR §648 (regulation restricting application of the formal hearing process under the APA) petitioners allege that Water Code §185 supersedes the regulation, apparently rendering it invalid. A review of 23 CCR 648 reveals that it was promulgated pursuant to the authority of Water Code §185.
Most important is the fact that all of the instances of alleged impropriety relate to the Board’s quasi-judicial acts in issuing the Cease and Desist orders. Any available review is made pursuant to the requirements of Water Code §13330 and CCP §1094.5.
¶¶101 – 103 allege that the Board had a ministerial duty to comply with CEQA. ¶101 alleges that the Board improperly claimed categorical exceptions from CEQA review and failed to address the cumulative impacts of separate cessation and cleanup orders without environmental review. The complaint does not clearly allege whether this action was quasi-legislative or quasi-judicial. In any event, if any review is available, it is made pursuant to Public Resources Code §21168 and §21168.5.
The scope of judicial review for proceedings to attack an agency's decision under CEQA is set forth in Public Resources Code sections 21168 and 21168.5. Section 21168 provides that where the action to attack arose as a result of a proceeding in which a hearing is required by law and the attack is on the grounds of noncompliance with CEQA, the action shall proceed in accordance with section 1094.5 of the Code of Civil Procedure but the court is only to determine whether the decision is supported by substantial evidence. Section 21168.5 provides that in all other actions, “the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 747-748 See also California Farm Bureau Federation v. California Wildlife Conservation (2006) 143 Cal.App.4th 173, 178
A petition for review pursuant to Public Resources Code §21168 is the equivalent to a review pursuant to CCP §1094.5. A petition for review pursuant to Public Resources Code §21168.5 is the equivalent to a review pursuant to CCP §1085. See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567
If petitioners seek review of the Board’s CEQA compliance, they must do so pursuant to the procedures set forth in Public Resources Code sections 21168 and 21168.5. Here the crux of the claim is that the Board improperly determined that the CDO’s were exempt from CEQA. The question then becomes whether the filing is timely. See Public Resources Code §21167(d).
¶105 alleges a mandatory duty to provide “assistance”. This does not state a cause of action pursuant to CCP §1085.
Water Code §13291.5 does not impose a mandatory duty on the regional board. Water Code §13301.1 requires the Regional Board to provide available current information on successful and economical water quality programs and information and assistance in applying for federal and state funds necessary to comply with the cease and desist order. The alleged failure of the Regional Board to comply with Water Code §13301.1 has nothing to do with the invalidity of the issuance of the CDO.
Most important is that there is no remedy in the prayer sought for the violation of this alleged mandatory duty.
¶¶106 through 110 provide no citations to any specific mandatory duties on the part of the Regional Board that are reviewable pursuant to CCP §1085. Rather they consist of general conclusory allegations concerning a ministerial duty not to impinge on property rights, civil rights and liberties of the petitioners.
¶111 Petitioners seek CCP §1085 review of 23 CCR §§ 2050 and 2050.5. Those regulations require petitioners to seek review by the State Board when the Regional Board fails to act. The complaint then alleges that, although petitioners were required to seek review by the State Board, since the State Board and Regional Board failed to observe the separation of powers, the court should review actions that make this requirement an exercise in futility. The allegations simply do not make out a cause of action of any kind, particularly since the State Board is not a party to this petition.
¶113 is a summary of all of the alleged mandatory duties of the Regional Board that were alleged in the body of the petition.
With the possible exception of the Board’s CEQA compliance, petitioners have failed to allege the existence of a mandatory duty that is subject to review pursuant to CCP §1085.
Accordingly, the demurrer to the Amendment to the Second Cause of Action is sustained without leave to amend. However, petitioners shall have leave to amend for the limited and specific purpose of alleging a cause of action for review the Board’s CEQA compliance with respect to the CDO’s.
Motion to Strike:The Regional Board’s motion to strike contains categories of allegations sought to be stricken.
Item 1: The motion to strike allegations that constitute improper facial challenges to various regulations is denied. The allegations appear in the First Cause of Action challenging the validity of the Cease and Desist Orders made by the Board. The cause of action attempts to invalidate the Board’s orders related to the Petitioners. The challenged orders are dependent upon valid regulations, Petitioners are making an “as applied” to invalidate the regulations.
Item 2: The failure to exhaust administrative remedies may well preclude the petitioners from raising many of the arguments they now seek to make. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners failed to raise certain issues before the Board. The Motion to Strike those allegations is denied.
Item 3: The court recognizes that a controversy over the validity of a resolution (such as Resolution NO. R3 -2008-005) is not ripe until the resolution is effective. However, the motion to strike does not indicate where, (1) on the face of the complaint, (2) the exhibits attached to the complaint or (3) in matters upon which judicial notice can be taken that the petitioners that Resolution NO. R3 -2008-005 is not approved. Therefore, the motion to strike is denied.
Item 4: Although petitioners have standing to challenge the validity of settlement agreements they have entered into, they no standing to challenge the validity of settlements entered into by parties who are strangers to this lawsuit. However, the court notes that some of the allegations that are listed are somewhat unrelated to a challenge of the validity of settlement agreements. For example, page 2:27-3:24 of the amendment does is not entirely focused on challenging settlement agreements. Similarly page 2:9-20 does not entirely focus on challenging the settlement agreements. The court is not inclined to check each citation to make sure that it alleges a challenge to a settlement agreement. Rather than grant or deny the motion, the court observes that, at this juncture, the petitioners have not established standing to challenge the validity of settlement agreements where the petitioners are not a party.
Item 5: Government Code §25825.5 has no impact on the Regional Board. The motion is granted as to item 5.
Item 6: There is no prayer for relief based upon an unconstitutional taking. Moreover there is no cause of action alleging an unlawful taking. The motion is granted. In the event that petitioners seek such a claim, a motion for leave to amend would have to be filed.
Item 7: The demurrer disposed of these allegations related to Water Code §13301.1 and §13291.5. To the extent that the allegation appears elsewhere, they are stricken.
Item 8: The motion to strike the allegations concerning emotional distress and anxiety and damages is granted.
Motion to Augment Administrative Record: Petitioners seek review of Cease and Desist Orders that were issued by the Regional Board. Petitioners’ motion seeks to add a number of documents to the Administrative Record and objects to some additional records as well.
The general rule, i.e., that no evidence other than the administrative record may be introduced at the hearing on a petition for writ of administrative mandamus, applies whether the case is reviewed by the court under the independent judgment test. The rule also applies in cases in which the reviewing court is deciding legal issues, such as whether there was a fair trial as well as those cases in which the court is making factual determinations (i.e., determining whether the evidence supports the findings). The judge, sitting without a jury (CCP §1094.5(a)), decides the case on the basis of the record, which may be augmented only within the strict limits of CCP §1094.5(e). 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110 (Internal Citations omitted)
If a party believes that a matter is improperly included in the Administrative Record, the remedy is either an objection or a motion to strike. Similarly a party may make a motion to include an item that was a part of the administrative record and that has been omitted. Finally if a party seeks to add items that are not part of the record of proceedings, they must make a motion to augment in compliance with CCP §1094.5(e).
Code of Civil Procedure §1094.5(e) expressly limits judicial review to the evidence in the administrative record except when (1) the evidence could not with due diligence have been produced during the administrative proceedings or (2) the administrative body improperly excluded the evidence. Western States Petroleum Ass'n v Superior Court (1995) 9 C4th 559, 578, 38 CR2d 139; City of Fairfield v Superior Court (1975) 14 C3d 768, 771, 122 CR 543. These rules apply in cases involving review under the substantial evidence test and review involving fundamental vested rights under the independent judgment test. Green v Board of Dental Exam'rs (1996) 47 CA4th 786, 55 CR2d 140. To have the court consider evidence outside the administrative record, either (1) a party must establish that evidence could not with due diligence have been discovered and produced at the administrative hearing or (2) the record itself must show that the evidence was offered but was rejected. Simply not having obtained or discovered the evidence until after the close of the administrative proceedings will not be sufficient; good cause must be shown for not having obtained or discovered the evidence before the close of the administrative hearing. 1 California Administrative Mandamus (CEB 3rd Ed.) §4:1 at page 110
In the absence of a proper preliminary foundation showing that one of the exceptions noted in section 1094.5, subdivision (e) applies, it is error for the court to permit the record to be augmented. Determination of the question of whether one of the exceptions applies is within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless it is manifestly abused. Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101
Petitioners do not establish the elements necessary to augment the record with extra-record evidence. Moreover, the remedy available for a successful motion to augment is often a remand to the agency for consideration of the extra-record evidence. See 1 California Administrative Mandamus (CEB 3rd Ed.) §4:12 D at page 128
The motion does not clearly identify whether it seeks to include documents omitted from the record or to add documents that were not in the record or some combination of the two. If the motion seeks to correct the record to include documents considered by Board that are now omitted, those documents should be included in the Administrative Record.
However, given the lack of definition of what should be included in the administrative record and the lack of a showing concerning whether evidence was considered by the Board or not, it is difficult to assess whether the cited documents were omitted from the record.
For example, Petitioners cite the following categories of documents. The problem is that there is a lack of clarity concerning whether the materials were considered by the Board.
1. Central Coast Water Quality Basin Plan: If the plan was considered as part of the administrative decision, it should be included in the Administrative Record. 2. Respondents contend that item 2 is included in the Administrative Record. 3. Item 3 is Page 84 of the Draft San Luis Obispo Airport EIR. If the document was considered as part of the administrative decision, it should be included in the Administrative Record.4. Petitioners argument does not indicate why the cited Los Osos water quality impacts should be a part of the Administrative Record. 5. Petitioner’s motion is unclear as to whether the LOCSD Groundwater Monitoring Reports were submitted to the Board for consideration in the challenged CDOs. If they were, they should be included in the AR. 6. Petitioner does not state that a quarterly status report and emails were part of the Administrative Record. 7. Petitioner does not state whether a chronology and news clippings were part of the Administrative Record
Petitioner’s demand for the State Water Board’s administrative record is unclear. Water Code §13330(b) provides court review of a Regional Board’s decision where the State Board has denied review. In this instance, the State Board denied review. Therefore, the record before the State Board appears irrelevant.
As to the other voluminous documents requested by the petitioners, the same principle applies. If the documents were considered by the Board in making its decision, they should be included as part of the Administrative Record. If they were not considered by the Board, petitioners must make a showing pursuant to CCP §1094.5(e) to have them included in the record.
Petitioner’s Reply Brief includes a declaration that is apparently for the purpose of establishing the elements of CCP §1094.5(e). It should have been included in the original motion. If the court is to consider this declaration, Respondents should have the opportunity to respond to it.
Motion re Identities of CDO§1040:
Respondent should be advised of the identities of CDO #1040. Moreover, the respondents should be provided a copy of the documents relied upon by the moving party in establishing their overriding privacy concerns. The parties should reach an agreement regarding any necessary confidentiality.
If the parties cannot reach an agreement, petitioners shall make a motion to allow the identities of CDO#1040 to remain confidential.
Tuesday, October 28, 2008
Final Report from the NWRI Independent Peer Review Panel
now at http://www.slocounty.ca.gov/PW/LOWWP.htm
now at http://www.slocounty.ca.gov/PW/LOWWP.htm
Monday, October 27, 2008
Time For Another EIR
(A "Viewpoint" from CSD Board Member Chuck Cesena.)
In addition to the election of candidates to our local Community Services District Board, early November will bring another important event in the history of Los Osos. The county will be releasing the draft Environmental Impact Report (EIR) for the sewer project. The last EIR, approved by later-to-be recalled board members who now call themselves Taxpayers Watch, gave us the TriW project in the middle of town. Do we want to risk a return to that possibility by voting for candidates with direct ties to Taxpayers Watch?
Much has been said lately about the current board being hostile to the other governmental agencies and about our handling of the district’s financial matters. Let’s look at the facts regarding our relations with other agencies:
· Given the divisiveness present in the community and the willingness of Taxpayers Watch to litigate our every step towards a revised project, our Board supported returning the project to the County through the passage of AB2701,
· In the months immediately after the recall, our Board negotiated with Assemblyman Blakeslee and the State Water Board staff and agreed to a compromise that would have continued work on the collection system and moved the treatment plant east of town. This effort was also torpedoed by Taxpayers Watch. Six million dollars later, this is the project the County is now proposing,
· Our Board, not just Director Sparks, supported the 218 assessment vote and the County project development process.
Yes, we have continued to litigate the Cease and Desist Orders that could force individuals to stop using their existing septic systems even if no sewer project is ever built. We just happen to believe it is wrong for the government to punish individuals for the failure of government at all levels; local, County and State.
Regarding our financial acumen:
· Audit after audit has determined that the commingling of funds from various district accounts, which was a practice started well before the recall, made it impossible to state with certainty the “color” of the money being used for reserves or to pay District bills. What can be stated with certainty is that no District funds were ever used to pay for anything except legitimate District expenses.
· Our Board cut expenses in every area we could. Our largest “unbudgeted” expenses have been Taxpayers Watch dissolution efforts at LAFCO and litigation; we can’t control that. If anyone has placed the District on a path to insolvency, it is this group of recalled board members.
· The low bidder for our water rate study, endorsed only by Director Sparks, was the consultant who previously delivered a flawed rate study that left the District short $500,000 in needed revenues.
The District’s bankruptcy is the direct result of needlessly starting construction on the TriW project three weeks prior to the recall election. The State’s loan was good for another three months. The recalled Board gambled with our town’s money and we have all lost. The good news is that recent arbitration decisions have limited the resulting contractor’s claims to about one third of the original amounts.
It was expensive to stop the TriW project, a project that didn’t even survive the County’s fine screening analysis. That project was so flawed that neither the County nor Coastal Commission objected when our Board withdrew the EIR’s Statement of Overriding Considerations (SOC) in 2006. The SOC were the reasons given by the recalled board for choosing the TriW project over the environmentally preferred and cheaper options identified in their own EIR.
Which brings me back to the fact that another sewer EIR is about to be released. If you watched the County’s Technical Advisory Committee meetings you know that Karen Venditti is the only CSD candidate who asked meaningful, thought provoking questions of the county consultant. She supported the County process, but with accountability. The Taxpayers Watch backed candidates usually just nodded their heads and accepted everything, no questions asked. The thought of a CSD Board dominated by their allegiance to the recalled board members makes me very nervous, especially with another EIR about to be released. Karen Venditti is clearly the choice on November 4.
Chuck Cesena
Saturday, October 25, 2008
Is That A Typo In Your Pocket or Are You Just Glad To See Me?
Cover story in the Oct 23 Bay News by Jack Beardwood, “Legal Bills Killing the CSD,” and at the end it states,”The $50,000 a month they had been spending included about $2,000 for the lawsuit against American Alternative Ins., and about $5,000 a month to defend recipients of cease and desist orders from the Water Board. [added note from me: from a source close to the issue, as they say, the actual amount "averages out to be less than $3600 a month."]The rest was going to Shute, Mihaly and Weinberger of San Francisco for the Taxpayers Watch case.” (That’s the one wherein Taxpayers Watch is suing the five CSD Board members personally.)
Defending against the Taxpayers Watch lawsuit is costing the good citizens of Los Osos $43,000 a month?
Last paragraph of the story, it says, “Taxpayers Watch describes itself as an unincorporated association organized to promote efficient quality local government services. A newsletter said they ‘serve our community through research and advocacy on significant tax and spending issues affecting our quality of life in Los Osos.”
I’ll say. $43,000 worth of quality!
The story also notes that “The district did receive some relief last week when Superior Court Judge Barry LaBarbara stayed action in the litigation by Taxpayers Watch until the district’s suit against American Alternative Insurance is adjudicated in federal court. . . .” “Schempf [LOCSD’s general manager] said the insurance company is claming that the district did not purchase the proper policy,” which apparently would have covered legal fees in this case? Which raises the question: Who bought the policy in the first place?
Meanwhile, the case is still in settlement discussion mode, so perhaps something will occur before it goes to trial, a trial which will cost taxpayers more $$$. And before people angered by this lawsuit start champing at the bit thinking that if TPW loses the case they’ll have to cough up all those legal fees, I don’t think so. For all you Legal Beagles out there, here’s a question: In this particular case, who will eat all the costs even if the CSD prevails in court?
Would that qualify as a quality “significant tax and spending issue affecting our quality of life in Los Osos!” I’ll say.
I’m Shocked Shocked! To Find Human Nature Running Amok!
Here’s Alan Greenspan, former Fed chief and top guru of the “We Don’t Need No Stinkin’ Regulations, The Market Will Take Care Of Its Own, Thank You, before Senator Waxman’s committee testifying about the present financial crisis we’re in:
“I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such as that they were best capable of protecting their own shareholders and their equity in the firms.”
Here’s what Alan Greenspan apparently overlooked: An entire culture wherein top CEOs of these firms were paid up front golden parachutes no matter how lousy their performance, CEO’s who had absolutely NO stake therefore in the long term health of the company they were running, indeed we saw repeatedly CEO’s who ran companies into the ground, damaged the stockholders, then jumped ship with their millions and were re-hired the next day at more gazillions to run another company.
And here’s what Alan Greenspan also apparently overlooked: We have shifted as a nation that took the long view of business into an entire culture wherein long term results are of absolutely NO consequence or interest since the ONLY thing that matters is getting the stock prices as high as possible in the next quarter. So if you had to lie, cheat, steal, fudge the books, make horribly risky investments to get that quarterly statement up there, then that’s where the self-interests of the organization lay.
Any first year student of human nature and/or a dog trainer using operant conditioning methods, could have told Alan that, and therefore he could have easily foretold this crash.
Unregulated Markets are irrational and dangerous and easily fall prey to unscrupulous thieves, all of which can leave innocent victims strewn all over the floor. In real life, nobody would ever claim that we shouldn’t have any laws against bank robbery because, after all, the bank robber will make sure he doesn’t harm anyone since it’s in his self-interest to do so. It’s a nice theory: Take the money, nobody gets hurt, no harm, no foul, the robber’s Best Interests are served perfectly.
But in the real world, real people die in real bank robberies all the time. Ditto with market frauds. And when you toss in the huge bonuses the taxpayers will be paying to these top thieves for the privilege of getting robbed, there is absolutely NO self-interest being put at risk. Indeed, no risk at all!
If Obama gets elected with a super majority of Democrats, it’s possible that Waxman and a newly staffed DOJ will work in tandem to ferret out criminal behavior and prosecute some of these bums, but that will all be too little, too late. And even if a few bums are hanged in the public square, in 20 years, Americans will have forgotten all about it. Another Ronald Reagan will come along with another trickle-down siren song that actually results in “sharing the wealth” by moving the wealth up to fewer and fewer hands (get rid of all those nasty taxes that pay for stuff we all need – let The Other Guy pay it!) and this whole thing will repeat like a really bad TV rerun.
Sigh.
A Saturday Poem as I wait to call the plumber again to return to solve the mystery of a root-clogged pipe that should have cleared but didn’t, and listening to strange burping noises coming from the toilet in the wee quiet hours of the morning, while checking the bank balance in the checkbook with growing sorrow . . . Ah, joys of home ownership.
Late Lights in Minnesota
At the end of a freight train rolling away,
a hand swinging a lantern.
The only lights left behind in the town
are a bulb burning cold in the jail,
and high in one house,
a five-battery flashlight
pulling an old woman downstairs to the toilet
among the red eyes of her cats.
Ted Kooser
Poet Laureate of the United States
from Sure Signs, New and selected Poems,
University of Pittsburg Press, 1980 (paperback)
Buy it at your local bookstore and put more poetry in your life!
Cover story in the Oct 23 Bay News by Jack Beardwood, “Legal Bills Killing the CSD,” and at the end it states,”The $50,000 a month they had been spending included about $2,000 for the lawsuit against American Alternative Ins., and about $5,000 a month to defend recipients of cease and desist orders from the Water Board. [added note from me: from a source close to the issue, as they say, the actual amount "averages out to be less than $3600 a month."]The rest was going to Shute, Mihaly and Weinberger of San Francisco for the Taxpayers Watch case.” (That’s the one wherein Taxpayers Watch is suing the five CSD Board members personally.)
Defending against the Taxpayers Watch lawsuit is costing the good citizens of Los Osos $43,000 a month?
Last paragraph of the story, it says, “Taxpayers Watch describes itself as an unincorporated association organized to promote efficient quality local government services. A newsletter said they ‘serve our community through research and advocacy on significant tax and spending issues affecting our quality of life in Los Osos.”
I’ll say. $43,000 worth of quality!
The story also notes that “The district did receive some relief last week when Superior Court Judge Barry LaBarbara stayed action in the litigation by Taxpayers Watch until the district’s suit against American Alternative Insurance is adjudicated in federal court. . . .” “Schempf [LOCSD’s general manager] said the insurance company is claming that the district did not purchase the proper policy,” which apparently would have covered legal fees in this case? Which raises the question: Who bought the policy in the first place?
Meanwhile, the case is still in settlement discussion mode, so perhaps something will occur before it goes to trial, a trial which will cost taxpayers more $$$. And before people angered by this lawsuit start champing at the bit thinking that if TPW loses the case they’ll have to cough up all those legal fees, I don’t think so. For all you Legal Beagles out there, here’s a question: In this particular case, who will eat all the costs even if the CSD prevails in court?
Would that qualify as a quality “significant tax and spending issue affecting our quality of life in Los Osos!” I’ll say.
I’m Shocked Shocked! To Find Human Nature Running Amok!
Here’s Alan Greenspan, former Fed chief and top guru of the “We Don’t Need No Stinkin’ Regulations, The Market Will Take Care Of Its Own, Thank You, before Senator Waxman’s committee testifying about the present financial crisis we’re in:
“I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such as that they were best capable of protecting their own shareholders and their equity in the firms.”
Here’s what Alan Greenspan apparently overlooked: An entire culture wherein top CEOs of these firms were paid up front golden parachutes no matter how lousy their performance, CEO’s who had absolutely NO stake therefore in the long term health of the company they were running, indeed we saw repeatedly CEO’s who ran companies into the ground, damaged the stockholders, then jumped ship with their millions and were re-hired the next day at more gazillions to run another company.
And here’s what Alan Greenspan also apparently overlooked: We have shifted as a nation that took the long view of business into an entire culture wherein long term results are of absolutely NO consequence or interest since the ONLY thing that matters is getting the stock prices as high as possible in the next quarter. So if you had to lie, cheat, steal, fudge the books, make horribly risky investments to get that quarterly statement up there, then that’s where the self-interests of the organization lay.
Any first year student of human nature and/or a dog trainer using operant conditioning methods, could have told Alan that, and therefore he could have easily foretold this crash.
Unregulated Markets are irrational and dangerous and easily fall prey to unscrupulous thieves, all of which can leave innocent victims strewn all over the floor. In real life, nobody would ever claim that we shouldn’t have any laws against bank robbery because, after all, the bank robber will make sure he doesn’t harm anyone since it’s in his self-interest to do so. It’s a nice theory: Take the money, nobody gets hurt, no harm, no foul, the robber’s Best Interests are served perfectly.
But in the real world, real people die in real bank robberies all the time. Ditto with market frauds. And when you toss in the huge bonuses the taxpayers will be paying to these top thieves for the privilege of getting robbed, there is absolutely NO self-interest being put at risk. Indeed, no risk at all!
If Obama gets elected with a super majority of Democrats, it’s possible that Waxman and a newly staffed DOJ will work in tandem to ferret out criminal behavior and prosecute some of these bums, but that will all be too little, too late. And even if a few bums are hanged in the public square, in 20 years, Americans will have forgotten all about it. Another Ronald Reagan will come along with another trickle-down siren song that actually results in “sharing the wealth” by moving the wealth up to fewer and fewer hands (get rid of all those nasty taxes that pay for stuff we all need – let The Other Guy pay it!) and this whole thing will repeat like a really bad TV rerun.
Sigh.
A Saturday Poem as I wait to call the plumber again to return to solve the mystery of a root-clogged pipe that should have cleared but didn’t, and listening to strange burping noises coming from the toilet in the wee quiet hours of the morning, while checking the bank balance in the checkbook with growing sorrow . . . Ah, joys of home ownership.
Late Lights in Minnesota
At the end of a freight train rolling away,
a hand swinging a lantern.
The only lights left behind in the town
are a bulb burning cold in the jail,
and high in one house,
a five-battery flashlight
pulling an old woman downstairs to the toilet
among the red eyes of her cats.
Ted Kooser
Poet Laureate of the United States
from Sure Signs, New and selected Poems,
University of Pittsburg Press, 1980 (paperback)
Buy it at your local bookstore and put more poetry in your life!
Friday, October 24, 2008
Calhoun’s Cannons, The Bay News, Tolosa Press, SLO, CA for October 24, 2008
Perfect Justice
Nothing in his life became him like the leaving it . . .
Shakespeare
In an odd way, it was the perfect verdict: O.J. Simpson, not guilty of the savage murder of two people, but O.J. guilty of greed and stupidity. The official conviction was for armed robbery and kidnapping, but in reality, he was just another dumb thug, part of a Gang that Couldn’t Shoot Straight, an old has-been caught red-handed fumbling around a Las Vegas hotel room trying to steal back odd bits of memorabilia and other junk left over from a wasted life that was long gone. It was ridiculous. It was pathetic. It was perfect. The real O.J. for the world to see, at last.
Long gone was the O.J. still surrounded by his fawning sycophants. Gone were the high-powered attorneys in their Armani suits, slapping his back and crowding in on the TV lights, eager to be part of the Trial of the Century, a celebrity affair of wretched excess and goggling public obsession.
If that O.J. had been convicted of that horrific double murder, he would have been able to go out in a blaze of glory – A man to be feared, to be reckoned with, a man who felt he had a right to slit his wife’s throat when she dissed him, and then take out a brave young stranger who came to her defense. Two with one blow! A fearsome power player still at the top of his game, his innocence trumpeted amidst a cloud of race cards all being played at once.
And he would have entered the prison system as Top Dog, the kind of man given deference, admiration and a wide berth -- a legend, a famous ex-football star, the one who dared stand up, an innocent black man railroaded by the LAPD, a hero!
That boffo grandstand ending was denied him, thanks to LAPD history, clever lawyers, poisonous racial pay-back and a lying cop – in short, a perfect storm of historical retribution and miscarried justice. It was a deadly brew that remains a potent stumbling block to justice for so many, even to this day.
What followed was a civil trial that found him liable for the death of two people, and civil penalties that sent him scrambling with his assets to Florida to spend his years on the golf course “looking for the murderer of his children’s mother,” surrounded by the usual grab-bag coterie of “friends” --hangers on, each sucking from his fame teat, hoping a little glory and a few bucks would come their way by the association.
But the civil trial and O.J.’s nature was the karmic cog that had been tripped into motion, the small moving wheel that compelled him to Las Vegas to fulfill his destiny.
While it still remains a possibility that some legal loophole will again see him walking free on the golf links, he can now never escape his true identity --not a feared, formidable double murderer, but a greedy, sleazy thug, trying to hustle hustlers who were tripping all over themselves to rat him and each other out, all scrabbling to make a few bucks off of junk that rightly should have been sold on E-bay for a couple of dollars.
Some of O.J.’s former lawyers, the ones whose high-priced talent and courtroom shenanigans helped free him on a double murder charge, were contacted by the L.A. Times for comment on the Las Vegas verdict. It was a Who’s Who of legal fame, these men who couldn’t wait to rush into that original courtroom and appear on Court TV. But not now.
“I just don’t want to talk about O.J. Simpson anymore,” said Gerald Uelmen, a professor at Santa Clara University Law School and former dean.” “I have no comment,” said F. Lee Bailey.” “And from Harvard University law professor Alan Dershowitz: “I’m not going to talk about it.”
No, of course not. After all, these lawyers are the kind who are only available for the rich and famous. Why should they waste their precious time commenting on a run-of-the-mill crime committed by a common criminal who’s headed for prison, nobody special, dime a dozen, good riddance to bad rubbish. After all, being a double murderer isn’t a real crime in America; being a has-been is.
The perfect coda for the perfect crime.
Perfect Justice
Nothing in his life became him like the leaving it . . .
Shakespeare
In an odd way, it was the perfect verdict: O.J. Simpson, not guilty of the savage murder of two people, but O.J. guilty of greed and stupidity. The official conviction was for armed robbery and kidnapping, but in reality, he was just another dumb thug, part of a Gang that Couldn’t Shoot Straight, an old has-been caught red-handed fumbling around a Las Vegas hotel room trying to steal back odd bits of memorabilia and other junk left over from a wasted life that was long gone. It was ridiculous. It was pathetic. It was perfect. The real O.J. for the world to see, at last.
Long gone was the O.J. still surrounded by his fawning sycophants. Gone were the high-powered attorneys in their Armani suits, slapping his back and crowding in on the TV lights, eager to be part of the Trial of the Century, a celebrity affair of wretched excess and goggling public obsession.
If that O.J. had been convicted of that horrific double murder, he would have been able to go out in a blaze of glory – A man to be feared, to be reckoned with, a man who felt he had a right to slit his wife’s throat when she dissed him, and then take out a brave young stranger who came to her defense. Two with one blow! A fearsome power player still at the top of his game, his innocence trumpeted amidst a cloud of race cards all being played at once.
And he would have entered the prison system as Top Dog, the kind of man given deference, admiration and a wide berth -- a legend, a famous ex-football star, the one who dared stand up, an innocent black man railroaded by the LAPD, a hero!
That boffo grandstand ending was denied him, thanks to LAPD history, clever lawyers, poisonous racial pay-back and a lying cop – in short, a perfect storm of historical retribution and miscarried justice. It was a deadly brew that remains a potent stumbling block to justice for so many, even to this day.
What followed was a civil trial that found him liable for the death of two people, and civil penalties that sent him scrambling with his assets to Florida to spend his years on the golf course “looking for the murderer of his children’s mother,” surrounded by the usual grab-bag coterie of “friends” --hangers on, each sucking from his fame teat, hoping a little glory and a few bucks would come their way by the association.
But the civil trial and O.J.’s nature was the karmic cog that had been tripped into motion, the small moving wheel that compelled him to Las Vegas to fulfill his destiny.
While it still remains a possibility that some legal loophole will again see him walking free on the golf links, he can now never escape his true identity --not a feared, formidable double murderer, but a greedy, sleazy thug, trying to hustle hustlers who were tripping all over themselves to rat him and each other out, all scrabbling to make a few bucks off of junk that rightly should have been sold on E-bay for a couple of dollars.
Some of O.J.’s former lawyers, the ones whose high-priced talent and courtroom shenanigans helped free him on a double murder charge, were contacted by the L.A. Times for comment on the Las Vegas verdict. It was a Who’s Who of legal fame, these men who couldn’t wait to rush into that original courtroom and appear on Court TV. But not now.
“I just don’t want to talk about O.J. Simpson anymore,” said Gerald Uelmen, a professor at Santa Clara University Law School and former dean.” “I have no comment,” said F. Lee Bailey.” “And from Harvard University law professor Alan Dershowitz: “I’m not going to talk about it.”
No, of course not. After all, these lawyers are the kind who are only available for the rich and famous. Why should they waste their precious time commenting on a run-of-the-mill crime committed by a common criminal who’s headed for prison, nobody special, dime a dozen, good riddance to bad rubbish. After all, being a double murderer isn’t a real crime in America; being a has-been is.
The perfect coda for the perfect crime.
Wednesday, October 22, 2008
Planks ‘n Logs
Here’s a L.A. Times story: Thousands of “Christians” all over the state are holding fasts and prayer vigils, day and night, fasting and praying. And here’s their prayer: “Dear God, please, pluuueeezzze, remove equal civil rights from some of my fellow Californians by passing Pro. 8, and so keep those people second class citizens forever and ever, world without end, we ask this in Baby Jeeeeeesus name, amen.”
I’m sorry, but what these good folks should be praying is something like this: “Dear God, please, pluueeezzze make me worthy of your love by removing the plank from mine own eye before I spend endless time looking for the mote in my neighbor’s eye, world without end, amen.”
I’m sorry, but I think the world would be a better place if certain religious folks spent more time looking to the state of their own souls and less time trying to deny equal protection and equal rights to their fellow (civil, secular) citizens.
Oh, Dear, Maybe
KVEC radio talk-show host, David Congalton, used to say that the endorsement from the Tribune was automatically the kiss of death to any candidates. I guess he was referring to post election results that seemed to indicate such an observation, more times than not. (Not a statistically accurate observation, but more of a Daveian droll comment.) Now I see that the Tribune has endorsed Maria Kelly and Marshall Ochylski for the Los Osos CSD. I got a flyer in the mail recently that made it look that they were running as a slate. Given the history of Los Osos and “slates” of candidates, I could only think that maybe voters would (should?) be leery of slates . . . given the history of same in Sewerville. Well, if Dave’s observation holds, my sympathies to the candidates. Actually, no matter who wins, my sympathies to them.
Block the Vote
Oh, those scamps. According to a new article by Robert F. Kennedy Jr. and Greg Palast, those merry GOP pranksters are busy distracting the public with ACORN, while again working full bore to cage and or purge newly registered democratic voters and deter new voters, especially if they're likely to vote democratic. And lord knows what’s still up with the various electronic, paperless voting machines, ripe for hacking.
Yes, it’s a rerun of the Ohio vote wars. At www.rollingstone.com/issue1064 American politics at its finest and what happens when a nation remains closely divided, locked in and reluctant to get off their butts and actually go vote in full numbers, thereby leaving the voting results close enough to steal, and/or not caring for the past few years to see to it that our looney voting procedures, rules and methods were standardized, secured and fixed. I mean the problems started showing up 8 years ago. Enough time, you’d think?
So, remember, on election day, vote early, vote often and get your dead Uncle Harry to the polls as many times as possible. Apparently, that IS the American way.
Here’s a L.A. Times story: Thousands of “Christians” all over the state are holding fasts and prayer vigils, day and night, fasting and praying. And here’s their prayer: “Dear God, please, pluuueeezzze, remove equal civil rights from some of my fellow Californians by passing Pro. 8, and so keep those people second class citizens forever and ever, world without end, we ask this in Baby Jeeeeeesus name, amen.”
I’m sorry, but what these good folks should be praying is something like this: “Dear God, please, pluueeezzze make me worthy of your love by removing the plank from mine own eye before I spend endless time looking for the mote in my neighbor’s eye, world without end, amen.”
I’m sorry, but I think the world would be a better place if certain religious folks spent more time looking to the state of their own souls and less time trying to deny equal protection and equal rights to their fellow (civil, secular) citizens.
Oh, Dear, Maybe
KVEC radio talk-show host, David Congalton, used to say that the endorsement from the Tribune was automatically the kiss of death to any candidates. I guess he was referring to post election results that seemed to indicate such an observation, more times than not. (Not a statistically accurate observation, but more of a Daveian droll comment.) Now I see that the Tribune has endorsed Maria Kelly and Marshall Ochylski for the Los Osos CSD. I got a flyer in the mail recently that made it look that they were running as a slate. Given the history of Los Osos and “slates” of candidates, I could only think that maybe voters would (should?) be leery of slates . . . given the history of same in Sewerville. Well, if Dave’s observation holds, my sympathies to the candidates. Actually, no matter who wins, my sympathies to them.
Block the Vote
Oh, those scamps. According to a new article by Robert F. Kennedy Jr. and Greg Palast, those merry GOP pranksters are busy distracting the public with ACORN, while again working full bore to cage and or purge newly registered democratic voters and deter new voters, especially if they're likely to vote democratic. And lord knows what’s still up with the various electronic, paperless voting machines, ripe for hacking.
Yes, it’s a rerun of the Ohio vote wars. At www.rollingstone.com/issue1064 American politics at its finest and what happens when a nation remains closely divided, locked in and reluctant to get off their butts and actually go vote in full numbers, thereby leaving the voting results close enough to steal, and/or not caring for the past few years to see to it that our looney voting procedures, rules and methods were standardized, secured and fixed. I mean the problems started showing up 8 years ago. Enough time, you’d think?
So, remember, on election day, vote early, vote often and get your dead Uncle Harry to the polls as many times as possible. Apparently, that IS the American way.
Saturday, October 18, 2008
Wiggle Waggle Walkathon for Woods Humane Society Today
At the Laguna Lake Park off Madonna Road (near LOVR) starting at 9 am. - 2 pm. A Gazillion Dogs of every kind and size! (Even the Mighty Finn McCool will be there at the Greyhound Adoption Center booth!) Fun! Raffle items! Food! Information Booths! Adoption opportunities! Exhibitions!
It's the annual fund-raiser for the Woods Humane Society. So c'mon down. Don't even need a dog to participate and to support the wonderful work Woods does.
At the Laguna Lake Park off Madonna Road (near LOVR) starting at 9 am. - 2 pm. A Gazillion Dogs of every kind and size! (Even the Mighty Finn McCool will be there at the Greyhound Adoption Center booth!) Fun! Raffle items! Food! Information Booths! Adoption opportunities! Exhibitions!
It's the annual fund-raiser for the Woods Humane Society. So c'mon down. Don't even need a dog to participate and to support the wonderful work Woods does.
Follow Up
Ed Eochs, [correction: Aaron Ochs] of http://www.ochsnation.blogspot.com/ questioned why no sewer questions were going to be taken during the recent LOCSD candidate's forum. At the link above is his letter to the League of Women Voters, and their reply, for any one interested on the follow up.
Follow up Too
In my previous posting on the recent debate, I fogot to mention a wierd sense of deja vu that came over me when for days at the various McCain/Palin rallies, McCain/Palin have been hammering this guy Ayers and how Obama "pals around with terrorists," and how we have to get to the bottom of this mystery relationship. Terrorist, terrorist, Ayers, pals around, terrorist, Ayers, over and over and over. Then, after briefly bringing it up and getting an answer from Obama, McCain suddenly dismisses Ayers as an old washed up terrorist who has no interest for him.
Remind you of anyone? Like Bush who spent endless time talking about smokin'out Osama, dead or alive, terrorist terrorist terrorist, then when Iraq was going kerblooey and Osama was happily hiding in the Tora Bora hills, Bush suddenly says that , well, frankly, he doesn't spend time thinking about the guy.
Yes, that old Emily Latella "nevermind" moment -- whip the demagogic horse into a fearsome lather so long as it's advancing your agenda, then when it no longer serves, blandly walk away.
Ed Eochs, [correction: Aaron Ochs] of http://www.ochsnation.blogspot.com/ questioned why no sewer questions were going to be taken during the recent LOCSD candidate's forum. At the link above is his letter to the League of Women Voters, and their reply, for any one interested on the follow up.
Follow up Too
In my previous posting on the recent debate, I fogot to mention a wierd sense of deja vu that came over me when for days at the various McCain/Palin rallies, McCain/Palin have been hammering this guy Ayers and how Obama "pals around with terrorists," and how we have to get to the bottom of this mystery relationship. Terrorist, terrorist, Ayers, pals around, terrorist, Ayers, over and over and over. Then, after briefly bringing it up and getting an answer from Obama, McCain suddenly dismisses Ayers as an old washed up terrorist who has no interest for him.
Remind you of anyone? Like Bush who spent endless time talking about smokin'out Osama, dead or alive, terrorist terrorist terrorist, then when Iraq was going kerblooey and Osama was happily hiding in the Tora Bora hills, Bush suddenly says that , well, frankly, he doesn't spend time thinking about the guy.
Yes, that old Emily Latella "nevermind" moment -- whip the demagogic horse into a fearsome lather so long as it's advancing your agenda, then when it no longer serves, blandly walk away.
Friday, October 17, 2008
Quick, Maudie, Hide The Children!
So, ACORN, a voter registration outfit that hires folks to go stand in front of supermarkets and other places to get people registered to vote, was cheated by some of their employees who just made up phony names on their forms and turned them in. ACORN spotted many of those phony forms, turned them in to the proper authorties to be purged and helped prosecute the phony fillers-in for fraud.
Here’s what John McCain had to say about his minor scam: We’re “on the verge of maybe perpetrating one of the greatest frauds in voter history in this country.”
AW, MAH GAWD! We’re doomed. The greatest fraud in voter history!!!
Scary? Yes. It is, knowing the nuclear codes might end up in the hands of a guy who launched from a minor scam into full blown terror alert, based on . . . ?? What facts, exactly? Did his campaign crew do NO fact-checking before launching this piece of national silliness? Now, imagine this guy in the Oval Office when an ill-informed staffer rushes in with some garbled account of some minor tiff in Horsepuckistan. LAUNCH! LAUNCH! IT’S THE MOST DANGEROUS SIUATION IN THE HISTORY OF THE WORLD!
George Orwell Woulda Loved It!
According to a new film documentary on the late Lee Atwater, he was afraid of going to hell for what his political campaign techniques and philosophy had done to this country. He was right to fear God’s righteous wrath. His legacy is not only a win-at-all-cost mentality, but a conscious corruption of the language until the citizens cannot believe anything since words no longer mean anything. Lee’s spawn are to be found alive and well in Newt Gingrich’s GOPAC classes and is alive and well in his most appalling protégé – Karl Rove.
The infection showed up in the last Presidential Debate when John McCain (some of his campaign folks are the same folks who Bush used to trash him when he previously ran for Prez. McCain hired ‘em for his own campaign, which speaks volumes about “character.”) used the term “pro-abortion.” As in, you know, those pro-abortionist people over there in Planned Parenthood and etc?
Pro-Abortion? Is there a new national group only John McCain knows about? A group now running a national campaign encouraging women to get pregnant so they can abort their fetuses? Maybe offering premiums and prizes for those who go get the most abortions – after all, if you’re a Pro Abortionist, you can’t have too many of ‘em. Like this group is out giving toasters or a free month’s subscription to “US” magazine with every abortion? Like there’s billboards scattered around the country saying, “Have You Had Your Abortion Today? Why Not? It’s Good For You and Good For The Country!”
THAT “Pro-Abortion” group?
You see the problem? Pure Lee Atwater, pure Karl Rove. Change the frame slightly and the entire picture goes all phony while appearing real. It’s a technique that stops thought, eliminates anything so complex as nuance, turns meaning to mush and corrupts every “fact” until public discourse turns into jibberish and people just end up yelling pre-packaged mantras at each other – each incomprehensible to the other because they’re speaking in corrupted foreign tongues in a language that no longer has any objective meaning.
Joe! Joe! Say It Ain’t So, Joe!
But the worst thing to come out of the debates was Joe the Plumber, who, it turns out, isn’t a real, certified plumber, isn’t making $250,000 a year, which means his claims that Obama’s tax plan would cost him big bucks are pure hockey-puckey. And now the poor guy stands convicted in the public square, thanks to the media frenzy, as a deadbeat property tax shirker, a liar, and maybe even a “criminal” for working without the proper plumbing licenses and certifications & etc.
Aw, Joe, Joe, Joe. That’s what happens when you get served up as a Poster Boy, to be used as a national political tool for a phony populist ploy, instead a real human being.
The weird thing is Obama originally talked to Joe. But Obama wasn’t the one who dragged poor old Joe onto the national stage for this pony dog and pony show. McCain did that.
Thanks, Mr. Atwater. Thanks Karl. Thanks a lot!
So, ACORN, a voter registration outfit that hires folks to go stand in front of supermarkets and other places to get people registered to vote, was cheated by some of their employees who just made up phony names on their forms and turned them in. ACORN spotted many of those phony forms, turned them in to the proper authorties to be purged and helped prosecute the phony fillers-in for fraud.
Here’s what John McCain had to say about his minor scam: We’re “on the verge of maybe perpetrating one of the greatest frauds in voter history in this country.”
AW, MAH GAWD! We’re doomed. The greatest fraud in voter history!!!
Scary? Yes. It is, knowing the nuclear codes might end up in the hands of a guy who launched from a minor scam into full blown terror alert, based on . . . ?? What facts, exactly? Did his campaign crew do NO fact-checking before launching this piece of national silliness? Now, imagine this guy in the Oval Office when an ill-informed staffer rushes in with some garbled account of some minor tiff in Horsepuckistan. LAUNCH! LAUNCH! IT’S THE MOST DANGEROUS SIUATION IN THE HISTORY OF THE WORLD!
George Orwell Woulda Loved It!
According to a new film documentary on the late Lee Atwater, he was afraid of going to hell for what his political campaign techniques and philosophy had done to this country. He was right to fear God’s righteous wrath. His legacy is not only a win-at-all-cost mentality, but a conscious corruption of the language until the citizens cannot believe anything since words no longer mean anything. Lee’s spawn are to be found alive and well in Newt Gingrich’s GOPAC classes and is alive and well in his most appalling protégé – Karl Rove.
The infection showed up in the last Presidential Debate when John McCain (some of his campaign folks are the same folks who Bush used to trash him when he previously ran for Prez. McCain hired ‘em for his own campaign, which speaks volumes about “character.”) used the term “pro-abortion.” As in, you know, those pro-abortionist people over there in Planned Parenthood and etc?
Pro-Abortion? Is there a new national group only John McCain knows about? A group now running a national campaign encouraging women to get pregnant so they can abort their fetuses? Maybe offering premiums and prizes for those who go get the most abortions – after all, if you’re a Pro Abortionist, you can’t have too many of ‘em. Like this group is out giving toasters or a free month’s subscription to “US” magazine with every abortion? Like there’s billboards scattered around the country saying, “Have You Had Your Abortion Today? Why Not? It’s Good For You and Good For The Country!”
THAT “Pro-Abortion” group?
You see the problem? Pure Lee Atwater, pure Karl Rove. Change the frame slightly and the entire picture goes all phony while appearing real. It’s a technique that stops thought, eliminates anything so complex as nuance, turns meaning to mush and corrupts every “fact” until public discourse turns into jibberish and people just end up yelling pre-packaged mantras at each other – each incomprehensible to the other because they’re speaking in corrupted foreign tongues in a language that no longer has any objective meaning.
Joe! Joe! Say It Ain’t So, Joe!
But the worst thing to come out of the debates was Joe the Plumber, who, it turns out, isn’t a real, certified plumber, isn’t making $250,000 a year, which means his claims that Obama’s tax plan would cost him big bucks are pure hockey-puckey. And now the poor guy stands convicted in the public square, thanks to the media frenzy, as a deadbeat property tax shirker, a liar, and maybe even a “criminal” for working without the proper plumbing licenses and certifications & etc.
Aw, Joe, Joe, Joe. That’s what happens when you get served up as a Poster Boy, to be used as a national political tool for a phony populist ploy, instead a real human being.
The weird thing is Obama originally talked to Joe. But Obama wasn’t the one who dragged poor old Joe onto the national stage for this pony dog and pony show. McCain did that.
Thanks, Mr. Atwater. Thanks Karl. Thanks a lot!
Wednesday, October 15, 2008
Regarding the Taxpayers Watch Lawsuit to Personally Sue CSD Board Members
The following is the Judge's ruling on the TPW case, which is suing 5 CSD Board members, personally, not as a Board. The trial on several of the triable issues of fact is tentatively scheduled to go forward in early Dec, wherein the trier of fact will determine if the “facts” are “facts,” not allegations, and whether even if “facts” are facts, do those facts still remain “legal.”
Proposed Tentative Ruling on Motion for Summary Adjudication
Taxpayer’s Watch v LOCSD, et al., CV 050862
Plaintiffs’ second amended complaint challenges the propriety of certain expenditures approved by the individual defendant members of the Los Osos Community Services District. Code of Civil Procedure §526a provides standing to a taxpayer to challenge any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town or city.
Plaintiffs seek to compel the individual defendant members of the LOCSD to personally reimburse the District for the challenged expenditures.
[W]e start with the general principle that expenditures by an administrative official are proper only insofar as they are authorized, explicitly or implicitly, by legislative enactment.... [S]uch executive officials are not free to spend public funds for any 'public purpose' they may choose, but must utilize appropriate funds in accordance with the legislatively designated purpose." Accordingly, a public official who controls public funds may be held personally liable to repay improperly expended funds if he has failed to exercise due care in permitting the expenditure. (Stanson v. Mott (1976) 17 Cal.3d 206, 226-227)
A cause of action under Code of Civil Procedure section 526a will not lie where the challenged governmental conduct is legal and conduct in accordance with regulatory standards “is a perfectly legal activity.” (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 714).
Even though Defendants’ motion for summary adjudication ultimately seeks to establish that the challenged expenditures were lawful, the court is mindful of the fact that under Stanson v. Mott, an illegal expenditure is only one element of liability. If the expenditure is found “unlawful”, Plaintiffs must still prove an absence of due care in making the expenditure and resulting damage. (Stevens v.Geduldig (1986) 42 Cal.3d 24, 35)
In Stevens v.Geduldig, the trial court found that the chairman of a Governor's tax reduction task force had been negligent in contracting to use funds provided by the State Department of Social Welfare for purposes unrelated to that department and that the Director of the State Health Care Services Department had been negligent in authorizing the chairman to enter into consulting subcontracts on behalf of that department.
The Supreme Court reversed the trial court’s judgment against the two officials. Despite finding that the expenditures were improper, the court ruled that subsequent reimbursement by the Governor’s office eliminated all damages attributable to the negligence of the defendants.
When the only illegality is the source of the funds, and the state has subsequently corrected its error and transferred funds from a proper source, we see no reason to require a repayment that would unjustly enrich the state treasury and leave the contractor without compensation for services rendered. Stevens v.Geduldig (1986) 42 Cal.3d 24, 35
To the extent that plaintiffs, at trial, rely upon the theory that the expenditures are unlawful, they will have the burden to establish Defendants’ lack of due care and resulting damage. Whether Defendants were negligent and whether the District suffered actual damage because of the payment of its legitimate obligations will, no doubt, figure prominently.
Fire Protection Fee:
The District paid $760,000.00 to the CDF to continue fire protection services. In June of 2006 the operating fund was insufficient to cover that expense. The District paid the fee from funds transferred from the District’s LAIF Account. Plaintiffs contend that the LAIF fund was originally derived from the 2002 Wastewater Project Bond Sales and was not a legal source of funds to pay the CDF fire debt. Therefore, the expenditure was illegal.
Defendant’s Material Fact 5: In reliance on the declaration of Lisa Schicker and Exhibit Q, defendants assert that the LAIF account was a legal source of revenue to pay this obligation because at least $760,000.00 (earmarked for fire and water reserves) remained in the account.
Exhibit Q is a document that shows the deposits and expenditures of LAIF Account -1011. The disbursements are only identified as “transfers to op”. Defendants assert that sufficient fire and water reserves remained in the LAIF account because all of the other disbursements were made solely for purposes of the wastewater treatment plant.
Exhibit Q is simply insufficient to prove that sufficient fire and water reserves remained in the LAIF account if for no other reason than the document lacks any detail concerning the expenditures identified as “transfers to op”.
Paragraph 13 of Bruce Buell’s declaration disputes Fact 5. He states that, in 2002, the Board adopted Resolution No. 2002-48 that authorized repayment of the interfund loans with bond proceeds. (See Exhibit C) He further states that the repayments were completed shortly after the bond proceeds were received. Therefore, no funds in the LAIF account were fire and water reserves at least up to the time that he was placed on administrative leave in October of 2005.
Fact 5 is not adequately established by the evidence. A more detailed accounting could prove that fire and water reserves were maintained in the LAIF account and sufficient money remained at the time the Fire Services payment was due. However, Exhibit Q is inadequate because there is no description of the real nature of the disbursements from the LAIF account. Moreover, Buell’s declaration disputes the assertion that fire and water reserve funds remained in the LAIF account.
Accordingly, the motion for summary adjudication on the issue of the Fire Protection Fee is denied.
Bond Assessment Payment:
The District paid $716,000.00 on a bond assessment payment from its Reserve fund in the LAIF account.
Under the terms of Resolution 2002-33 and the bond agreement, bond payments were to be made with assessment revenues held in the Redemption Fund. Where there is a shortfall, payments were to be made from a Reserve Fund. [See Exhibit A at pages 10-11; Exhibit R where MBIA demands payment from the reserve fund and Buell declaration at ¶8(c)]
There is no dispute of fact that the reserve fund was a legal source of payment of bond payment. As such, that expenditure is legal. Plaintiffs fall back to an argument that the expenditures that depleted the Redemption fund were illegal. That issue is not tendered in the prayer of the complaint or in the motion for summary adjudication.
Accordingly, the motion for summary adjudication on the issue of the legality of the Bond Assessment payment is granted. There is no triable issue of fact that payment was made from a legal source of the budget.
Settlements:
Government Code §1090:
The District settled five separate lawsuits on November 23, 2005. Concerned Citizens of Los Osos was the plaintiff in three of those lawsuits.
Plaintiffs’ second amended complaint alleges that the settlements were collusive or sham settlements. Specifically, paragraph 13 complains that the dismissal of the Measure B lawsuit pending on appeal with a payment settling that case was improper. The complaint further alleges that defendants had personal ties to the organizations that benefitted from the settlements and that defendants benefitted directly or indirectly from the settlement payments. Paragraph 14 alleges that the Board used state money from the State Water Quality Control Board’s Revolving Fund program designated to pay contractors who worked on the project. Paragraph 21 alleges that the settlements were paid without legal cause.
Defendants’ motion argues that none of the individual board members were in violation of Government Code §1090 because they derived no financial or pecuniary benefit from the settlements. Government Code § 1090 codified the common law prohibition of public officials having a financial interest in contracts they make in their official capacities. The purpose of this section is to prohibit self-dealing, not representation of the interests of others. (See Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1230 and 1231 )
Plaintiffs attempt to dispute Fact Number 23 with Plaintiff’s Exhibits 12 and 13. They are proffered in an effort to establish that Schicker and Tacker received indirect financial benefits in the form of compensation because they were “covert” members of CCLO.
The exhibits consist of copies of email communications between Schicker and Tacker on the one hand with attorneys Parker & Hawley as well as Julie Biggs on the other. The exhibits establish that Schicker and Tacker were in communication with the above referenced attorneys concerning the status of and strategy for handling of the litigation.
The email correspondence with Parker & Hawley also reveals discussion concerning the need for payment of attorneys’ fees and costs to keep the litigation going. The tenor of the communications relate to CCLO’s obligation to keep the account current. Exhibit 12 establishes that CCLO’s lack of money to finance the litigation, in large part, led to Parker & Hawley’s withdrawal.
The settlement agreements of the CCLO lawsuits (Defendants’ Exhibit K) establish that the settlement covered fees for services through November 15, 2005, a period that would encompass Parker & Hawley’s representation. However, the evidence does not establish that Schicker and Tacker received a financial or pecuniary benefit from the settlements because these exhibits do not establish that they were personally liable for fees incurred by CCLO. Moreover, according to the email communications, Keith Swanson appears to be the party who was responsible for keeping the accounts current on CCLO’s behalf.
Footnote 1 of plaintiff’s opposition makes reference to Schicker’s signature on CCLO’s contract for legal services. Plaintiffs state that the contract is not presented in the opposition because there is a dispute about its admissibility.
Plaintiffs’ points and authorities also make reference to Schicker’s deposition where she states she signed a contract in a representative capacity. This does not establish any personal liability for the attorney’s fees incurred.
There is no evidence presented that would establish that Schicker obligated herself to be personally responsible for the payment of attorney’s fees.
Plaintiffs raise no dispute to the assertion in Fact 23 that Fouche, Senet and Cesena had no pecuniary or financial interest in any of the settlements whatsoever.
Based upon the evidence presented in the separate statement of facts, plaintiffs have not adequately disputed Fact 23.
Fact 27 states that no defendant was an officer, director or member of CCLO at any time that BWS represented CCLO in the actions. Although it is not clear from Exhibits 12 and 13 when Burke, Williams and Sorenson undertook representation of CCLO, Julie Biggs is associated with that law firm. Communications with Biggs are set out in Exhibit 13. Those communications do involve some strategic decisions concerning the ongoing litigation. The evidence contained in Exhibit 13 could lead a reasonable trier of fact to conclude that Tacker acted as a member to CCLO because she participated in what appears to be confidential communications. Therefore, Fact 27 appears to be disputed.
Plaintiffs also argue that the settlements were improper as a gift of public funds in violation of Cal. Const., art. XVI, § 6, despite the fact that the pleading does not make this specific claim. Finally plaintiffs argue that the settlements were paid from an illegal source of funds.
Gift of Public Funds:
[T]he settlement of a good faith dispute between the State and a private party is an appropriate use of public funds, neither wasteful within the meaning of section 526a, nor a gift barred by article XVI, section 6, because the relinquishment of a colorable legal claim in return for settlement funds paid by the State is good consideration and accomplishes a valid public purpose. County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 200
Where funds are expended pursuant to a settlement agreement in exchange for wholly invalid claim, no “public purpose” is achieved. Such an expenditure violates the gift clause of Cal. Const., art. XVI, § 6. Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 201
The court in Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431 followed the rationale in Orange County Foundation when it invalidated an arbitrator’s award of attorney’s fees in the amount of $88,000,000.00 when a statute limited such an award to $18,000,000.00. The court reasoned that, because the attorneys had no colorable claim to fees in excess of $18 million, any payment over that amount served no public purpose. (Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 451)
The issue of whether the settlement of the five cases constitutes a gift of public funds is not raised in the motion for summary adjudication. Therefore, the motion does not trigger plaintiff’s burden of production of evidence nor does it dispose of plaintiff’s entire claim.
However, to prevail on the theory that the settlements were an improper gift of public funds, plaintiffs will have the burden to establish that each settlement was of a compromise of a wholly invalid claim.
"[C]ompromise of a doubtful claim asserted and maintained in good faith constitutes a sufficient consideration for a new promise, even though it may ultimately be found that the claimant could not have prevailed." (Union Collection Co. v. Buckman, (1907) 150 Cal. 159, 163) Thus, surrender of a possibly meritless claim which is disputed in good faith is supported by valid consideration.(Stub v. Belmont, (1942) 20 Cal.2d 208, 218)
The court is mindful that there are numerous reasons to settle and resolve pending lawsuits, even those that have little or no merit. The issue of whether the settlements constitute a gift of public funds requires a very narrow inquiry. It is not an invitation to retry the merits of each compromised lawsuit nor does it provide the opportunity to examine the propriety of the reasons for the settlement. The key issue is whether there was a compromise of a knowingly unfounded claim. (Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 200)
Source of Funds for Settlement:
Plaintiffs challenge the settlement payments on the basis that they were drawn from the State Water Quality Control Board Revolving Fund. Here again, plaintiffs have the burden to establish the elements of illegality and lack of due care on the part of the defendants. This would require the same analysis as set out in Stanson v. Mott. Plaintiff will have the burden to prove expenditures from an illegal source and negligence resulting in damage.
Failure to Request Corrective Action:
Defendants assert that plaintiffs failed timely request corrective action. There are triable issues concerning whether this was a futile act.
Conclusion:
Accordingly, the motion for summary adjudication of the claim related to the payment of the fire service fund is denied. Fact 5 has not been adequately established by the evidence and is disputed in the declaration of Bruce Buel.
Defendants’ motion for summary adjudication of the claim related to the bond fund is granted. There is no dispute of fact that the source of the payment was a proper and legal source.
The motion for summary adjudication of the claim related to settlement of litigation is denied. Fact 27 is disputed. Moreover, the facts, even if undisputed, do not dispose of plaintiffs’ entire claim.
To the extent that the motion is based upon a contention that plaintiffs failed to timely request corrective action, there are triable issues of fact concerning whether the effort would have been futile.
The brief incorrectly refers to Exhibits 11 and 12.
The following is the Judge's ruling on the TPW case, which is suing 5 CSD Board members, personally, not as a Board. The trial on several of the triable issues of fact is tentatively scheduled to go forward in early Dec, wherein the trier of fact will determine if the “facts” are “facts,” not allegations, and whether even if “facts” are facts, do those facts still remain “legal.”
Proposed Tentative Ruling on Motion for Summary Adjudication
Taxpayer’s Watch v LOCSD, et al., CV 050862
Plaintiffs’ second amended complaint challenges the propriety of certain expenditures approved by the individual defendant members of the Los Osos Community Services District. Code of Civil Procedure §526a provides standing to a taxpayer to challenge any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town or city.
Plaintiffs seek to compel the individual defendant members of the LOCSD to personally reimburse the District for the challenged expenditures.
[W]e start with the general principle that expenditures by an administrative official are proper only insofar as they are authorized, explicitly or implicitly, by legislative enactment.... [S]uch executive officials are not free to spend public funds for any 'public purpose' they may choose, but must utilize appropriate funds in accordance with the legislatively designated purpose." Accordingly, a public official who controls public funds may be held personally liable to repay improperly expended funds if he has failed to exercise due care in permitting the expenditure. (Stanson v. Mott (1976) 17 Cal.3d 206, 226-227)
A cause of action under Code of Civil Procedure section 526a will not lie where the challenged governmental conduct is legal and conduct in accordance with regulatory standards “is a perfectly legal activity.” (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 714).
Even though Defendants’ motion for summary adjudication ultimately seeks to establish that the challenged expenditures were lawful, the court is mindful of the fact that under Stanson v. Mott, an illegal expenditure is only one element of liability. If the expenditure is found “unlawful”, Plaintiffs must still prove an absence of due care in making the expenditure and resulting damage. (Stevens v.Geduldig (1986) 42 Cal.3d 24, 35)
In Stevens v.Geduldig, the trial court found that the chairman of a Governor's tax reduction task force had been negligent in contracting to use funds provided by the State Department of Social Welfare for purposes unrelated to that department and that the Director of the State Health Care Services Department had been negligent in authorizing the chairman to enter into consulting subcontracts on behalf of that department.
The Supreme Court reversed the trial court’s judgment against the two officials. Despite finding that the expenditures were improper, the court ruled that subsequent reimbursement by the Governor’s office eliminated all damages attributable to the negligence of the defendants.
When the only illegality is the source of the funds, and the state has subsequently corrected its error and transferred funds from a proper source, we see no reason to require a repayment that would unjustly enrich the state treasury and leave the contractor without compensation for services rendered. Stevens v.Geduldig (1986) 42 Cal.3d 24, 35
To the extent that plaintiffs, at trial, rely upon the theory that the expenditures are unlawful, they will have the burden to establish Defendants’ lack of due care and resulting damage. Whether Defendants were negligent and whether the District suffered actual damage because of the payment of its legitimate obligations will, no doubt, figure prominently.
Fire Protection Fee:
The District paid $760,000.00 to the CDF to continue fire protection services. In June of 2006 the operating fund was insufficient to cover that expense. The District paid the fee from funds transferred from the District’s LAIF Account. Plaintiffs contend that the LAIF fund was originally derived from the 2002 Wastewater Project Bond Sales and was not a legal source of funds to pay the CDF fire debt. Therefore, the expenditure was illegal.
Defendant’s Material Fact 5: In reliance on the declaration of Lisa Schicker and Exhibit Q, defendants assert that the LAIF account was a legal source of revenue to pay this obligation because at least $760,000.00 (earmarked for fire and water reserves) remained in the account.
Exhibit Q is a document that shows the deposits and expenditures of LAIF Account -1011. The disbursements are only identified as “transfers to op”. Defendants assert that sufficient fire and water reserves remained in the LAIF account because all of the other disbursements were made solely for purposes of the wastewater treatment plant.
Exhibit Q is simply insufficient to prove that sufficient fire and water reserves remained in the LAIF account if for no other reason than the document lacks any detail concerning the expenditures identified as “transfers to op”.
Paragraph 13 of Bruce Buell’s declaration disputes Fact 5. He states that, in 2002, the Board adopted Resolution No. 2002-48 that authorized repayment of the interfund loans with bond proceeds. (See Exhibit C) He further states that the repayments were completed shortly after the bond proceeds were received. Therefore, no funds in the LAIF account were fire and water reserves at least up to the time that he was placed on administrative leave in October of 2005.
Fact 5 is not adequately established by the evidence. A more detailed accounting could prove that fire and water reserves were maintained in the LAIF account and sufficient money remained at the time the Fire Services payment was due. However, Exhibit Q is inadequate because there is no description of the real nature of the disbursements from the LAIF account. Moreover, Buell’s declaration disputes the assertion that fire and water reserve funds remained in the LAIF account.
Accordingly, the motion for summary adjudication on the issue of the Fire Protection Fee is denied.
Bond Assessment Payment:
The District paid $716,000.00 on a bond assessment payment from its Reserve fund in the LAIF account.
Under the terms of Resolution 2002-33 and the bond agreement, bond payments were to be made with assessment revenues held in the Redemption Fund. Where there is a shortfall, payments were to be made from a Reserve Fund. [See Exhibit A at pages 10-11; Exhibit R where MBIA demands payment from the reserve fund and Buell declaration at ¶8(c)]
There is no dispute of fact that the reserve fund was a legal source of payment of bond payment. As such, that expenditure is legal. Plaintiffs fall back to an argument that the expenditures that depleted the Redemption fund were illegal. That issue is not tendered in the prayer of the complaint or in the motion for summary adjudication.
Accordingly, the motion for summary adjudication on the issue of the legality of the Bond Assessment payment is granted. There is no triable issue of fact that payment was made from a legal source of the budget.
Settlements:
Government Code §1090:
The District settled five separate lawsuits on November 23, 2005. Concerned Citizens of Los Osos was the plaintiff in three of those lawsuits.
Plaintiffs’ second amended complaint alleges that the settlements were collusive or sham settlements. Specifically, paragraph 13 complains that the dismissal of the Measure B lawsuit pending on appeal with a payment settling that case was improper. The complaint further alleges that defendants had personal ties to the organizations that benefitted from the settlements and that defendants benefitted directly or indirectly from the settlement payments. Paragraph 14 alleges that the Board used state money from the State Water Quality Control Board’s Revolving Fund program designated to pay contractors who worked on the project. Paragraph 21 alleges that the settlements were paid without legal cause.
Defendants’ motion argues that none of the individual board members were in violation of Government Code §1090 because they derived no financial or pecuniary benefit from the settlements. Government Code § 1090 codified the common law prohibition of public officials having a financial interest in contracts they make in their official capacities. The purpose of this section is to prohibit self-dealing, not representation of the interests of others. (See Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1230 and 1231 )
Plaintiffs attempt to dispute Fact Number 23 with Plaintiff’s Exhibits 12 and 13. They are proffered in an effort to establish that Schicker and Tacker received indirect financial benefits in the form of compensation because they were “covert” members of CCLO.
The exhibits consist of copies of email communications between Schicker and Tacker on the one hand with attorneys Parker & Hawley as well as Julie Biggs on the other. The exhibits establish that Schicker and Tacker were in communication with the above referenced attorneys concerning the status of and strategy for handling of the litigation.
The email correspondence with Parker & Hawley also reveals discussion concerning the need for payment of attorneys’ fees and costs to keep the litigation going. The tenor of the communications relate to CCLO’s obligation to keep the account current. Exhibit 12 establishes that CCLO’s lack of money to finance the litigation, in large part, led to Parker & Hawley’s withdrawal.
The settlement agreements of the CCLO lawsuits (Defendants’ Exhibit K) establish that the settlement covered fees for services through November 15, 2005, a period that would encompass Parker & Hawley’s representation. However, the evidence does not establish that Schicker and Tacker received a financial or pecuniary benefit from the settlements because these exhibits do not establish that they were personally liable for fees incurred by CCLO. Moreover, according to the email communications, Keith Swanson appears to be the party who was responsible for keeping the accounts current on CCLO’s behalf.
Footnote 1 of plaintiff’s opposition makes reference to Schicker’s signature on CCLO’s contract for legal services. Plaintiffs state that the contract is not presented in the opposition because there is a dispute about its admissibility.
Plaintiffs’ points and authorities also make reference to Schicker’s deposition where she states she signed a contract in a representative capacity. This does not establish any personal liability for the attorney’s fees incurred.
There is no evidence presented that would establish that Schicker obligated herself to be personally responsible for the payment of attorney’s fees.
Plaintiffs raise no dispute to the assertion in Fact 23 that Fouche, Senet and Cesena had no pecuniary or financial interest in any of the settlements whatsoever.
Based upon the evidence presented in the separate statement of facts, plaintiffs have not adequately disputed Fact 23.
Fact 27 states that no defendant was an officer, director or member of CCLO at any time that BWS represented CCLO in the actions. Although it is not clear from Exhibits 12 and 13 when Burke, Williams and Sorenson undertook representation of CCLO, Julie Biggs is associated with that law firm. Communications with Biggs are set out in Exhibit 13. Those communications do involve some strategic decisions concerning the ongoing litigation. The evidence contained in Exhibit 13 could lead a reasonable trier of fact to conclude that Tacker acted as a member to CCLO because she participated in what appears to be confidential communications. Therefore, Fact 27 appears to be disputed.
Plaintiffs also argue that the settlements were improper as a gift of public funds in violation of Cal. Const., art. XVI, § 6, despite the fact that the pleading does not make this specific claim. Finally plaintiffs argue that the settlements were paid from an illegal source of funds.
Gift of Public Funds:
[T]he settlement of a good faith dispute between the State and a private party is an appropriate use of public funds, neither wasteful within the meaning of section 526a, nor a gift barred by article XVI, section 6, because the relinquishment of a colorable legal claim in return for settlement funds paid by the State is good consideration and accomplishes a valid public purpose. County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 200
Where funds are expended pursuant to a settlement agreement in exchange for wholly invalid claim, no “public purpose” is achieved. Such an expenditure violates the gift clause of Cal. Const., art. XVI, § 6. Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 201
The court in Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431 followed the rationale in Orange County Foundation when it invalidated an arbitrator’s award of attorney’s fees in the amount of $88,000,000.00 when a statute limited such an award to $18,000,000.00. The court reasoned that, because the attorneys had no colorable claim to fees in excess of $18 million, any payment over that amount served no public purpose. (Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 451)
The issue of whether the settlement of the five cases constitutes a gift of public funds is not raised in the motion for summary adjudication. Therefore, the motion does not trigger plaintiff’s burden of production of evidence nor does it dispose of plaintiff’s entire claim.
However, to prevail on the theory that the settlements were an improper gift of public funds, plaintiffs will have the burden to establish that each settlement was of a compromise of a wholly invalid claim.
"[C]ompromise of a doubtful claim asserted and maintained in good faith constitutes a sufficient consideration for a new promise, even though it may ultimately be found that the claimant could not have prevailed." (Union Collection Co. v. Buckman, (1907) 150 Cal. 159, 163) Thus, surrender of a possibly meritless claim which is disputed in good faith is supported by valid consideration.(Stub v. Belmont, (1942) 20 Cal.2d 208, 218)
The court is mindful that there are numerous reasons to settle and resolve pending lawsuits, even those that have little or no merit. The issue of whether the settlements constitute a gift of public funds requires a very narrow inquiry. It is not an invitation to retry the merits of each compromised lawsuit nor does it provide the opportunity to examine the propriety of the reasons for the settlement. The key issue is whether there was a compromise of a knowingly unfounded claim. (Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 200)
Source of Funds for Settlement:
Plaintiffs challenge the settlement payments on the basis that they were drawn from the State Water Quality Control Board Revolving Fund. Here again, plaintiffs have the burden to establish the elements of illegality and lack of due care on the part of the defendants. This would require the same analysis as set out in Stanson v. Mott. Plaintiff will have the burden to prove expenditures from an illegal source and negligence resulting in damage.
Failure to Request Corrective Action:
Defendants assert that plaintiffs failed timely request corrective action. There are triable issues concerning whether this was a futile act.
Conclusion:
Accordingly, the motion for summary adjudication of the claim related to the payment of the fire service fund is denied. Fact 5 has not been adequately established by the evidence and is disputed in the declaration of Bruce Buel.
Defendants’ motion for summary adjudication of the claim related to the bond fund is granted. There is no dispute of fact that the source of the payment was a proper and legal source.
The motion for summary adjudication of the claim related to settlement of litigation is denied. Fact 27 is disputed. Moreover, the facts, even if undisputed, do not dispose of plaintiffs’ entire claim.
To the extent that the motion is based upon a contention that plaintiffs failed to timely request corrective action, there are triable issues of fact concerning whether the effort would have been futile.
The brief incorrectly refers to Exhibits 11 and 12.
Tuesday, October 14, 2008
Time for Mother Calhoun To Spank, Again?
Long time readers will remember the Hideous & Appalling ANONYMOUS person calling himself/herself/itself “Crapkiller,” who regularly posted comments on this blogsite. Before the 218 sewer assessment vote, this Piece of Work threatened to post how citizens voted in the 218 assessment, list their names, how they voted & etc., in some kind of sick neener-neener threat of Be Careful How You Vote, That Vote Is Public And I’ll Let Everyone Know How You Voted. The threat was to real people, real votes, real time, a real threat. At the time, I posted a notice that Crap had crossed the line and I’d be hitting the delete button for all her/his/its postings. Another ANONYMOUS commentor calling himself “Shark Inlet” protested and said I should issue a warning then if real time, real people “threats” were made, I could then start dumping “Crap.” (I gathered that Crap and Inlet were “friends.”) I did so and Crap mercifully went away for a while, maybe. But at least the threats to “out” peoples’ votes before an election stopped.
Some ANONYMOUS person has recently posted information in the comment section professing to “out” some other ANONYMOUS person who posts as “Shark Inlet,” who is apparently a real person with a real name living in Los Osos in real time. I say, apparently, because even though this person called me, I still have no way of verifying who was on the other end of the phone. (This is how seriously nutty a small percentage of people here in Los Osos have gotten about all things sewerish.)
I posted the following warning on the comment section regarding this information, but I think I need to post it here as well. If ANONYMOUS posters start threatening real people in real time in a real town, I will start hitting the delete button on them. If ANONYMOUS posters have real evidence that some crime has been committed, they need to contact the proper authorities. If they wish to call each other names, they’ve already been warned to not get all potty-mouthed or Mother Calhoun will start hitting the delete button on them as well. One ANONYMOUS poster calling another ANONYMOUS poster a liar or unethical or a sleazy doody-head is simply comical, since neither party has any credibility at all. Meanwhile, to all my readers, I re-post my caveat below, the one that I posted on the Oct 13 comment section. You have been warned :
WARNING! WARNING! I need to remind the reader that the above postings were posed ANONYMOUSLY. As I have warned folks before, ANONYMOUS posters on this site and any other site have no credibility, so caveat emptor. If somebody has evidence of an actual "crime" that whoever is supposedly committing, take it to the DA, who, likely will snort through his nose and push the file off his desk. Dirty tricks and anonymous posted lies and spin and other made up stuff, while utterly lacking in ethics, are (alas) common practices by a whole lot of people. There are incredibly powerful financial and political interests at work in this community, so that buys and/or creates a lot of dirty tricks, cover-ups, misdirection and flat out pressure to do whatever certain interests want to see done. The opinions expressed in the main body of this blog are mine -- real person, real name. All comments posted here in the comment section, even if they claim to contain somebody's "real" name, are ANONYMOUS and need to be treated as such.
7:16 AM, October 13, 2008
CSD Candidate Forum Last Night.
About 75 people turned out last night for the League of Women Voter’s Candidate Forum for the CSD Board. Hooray for all the Candidates running. Hooray for the League. Hoory for the folks who turned out to ask and listen to questions of concern to them. Let’s hope the whole community is paying attention and actually gets off its duff and votes.
Appropos of Which, From the Internet. Something to think about as we slog through another election cycle
With the exception of “lobbyists,” I have to agree with much of this. Without campaign reform (money, money, money) the problem of our elected officials needing to raise obscene amounts of money every day for what has turned into a 24/7/365 campaign season, the problem will not be lessened. On the other hand, We The People are also the only ones who can elect officials and or change our constitution or whatever is needed, which can change the rules governing the way our campaigns are run, so it’s back to square one as well.
Subject: The Truth of the Matter is!
Politicians are the only people in the world who create problems and then campaign against them.
Have you ever wondered why, if both the Democrats and the Republicans are against deficits, we have deficits?
Have you ever wondered why, if all the politicians are against inflation and high taxes, we have inflation and high taxes?
You and I don't propose a federal budget,
the President does.Y
ou and I don't have the Constitutional authority to vote on appropriations' the House of Representatives does.
You and I don't write the tax code,
Congress does.You and I don't set fiscal policy,
Congress does.You and I don't control monetary policy,
the Federal Reserve Bank does.
One hundred senators, 435 congressmen, one president, and nine Supreme Court justices 545 human beings out of the 300 million are directly, legally, morally, and individually responsible for the domestic problems that plague this country.
I excluded the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered, but private, central bank.
I excluded all the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman, or a president to do one cotton-picking thing. I don't care if they offer a politician $1 million dollars in cash. The politician has the power to accept or reject it. No matter what the lobbyist promises, it is the legislator's responsibility to determine how he votes.
Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party.
What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of a Speaker, who stood up and criticized the President for creating deficits.
The President can only propose a budget. He cannot force the Congress to accept it.
The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating and approving appropriations and taxes.
Who is the Speaker of the House? She is the leader of the majority party. She and fellow House members, not the President, can approve any budget they want.
If the President vetoes it, they can pass it over his veto if they agree to.
It seems inconceivable to me that a nation of 300 million cannot replace 545 people who stand convicted -- by present facts -- of incompetence and irresponsibility.
I can't think of a single domestic problem that is not traceable directly to those 545 people.
When you fully grasp the plain truth that 545 people exercise the power of the federal government, then it must follow that what exists is what they want to exist.
If the tax code is unfair, it's because they want it unfair.
If the budget is in the red, it's because they want it in the red.
If the Marines are in IRAQ, it's because they want them in IRAQ.
If they do not receive social security but are on an elite retirement plan not available to the people, it's because they want it that way.
There are no insoluble government problems.
Do not let these 545 people shift the blame to bureaucrats, whom they hire and whose jobs they can abolish; to lobbyists, whose gifts and advice they can reject; to regulators, to whom they give the power to regulate and from whom they can take this power.
Above all, do not let them con you into the belief that there exists disembodied mystical forces like 'the economyʼ, 'inflationʼ, or 'politics' that prevent them from doing what they take an oath to do.
Those 545 people, and they alone, are responsible.
They, and they alone, have the power.They, and they alone, should be held accountable by the people who are their bosses provided the voters have the gumption to manage their own employees.
We should vote all of them out of office and clean up their mess!
What you do with this article now that you have read it is up to you, though you appear to have several choices:
1. You can send this to everyone in your address book, and hope they do something about it.
2. You can agree to vote against everyone that is currently in office, knowing that the process will take several years.
3. You can decide to run for office yourself and agree to do the job properly.
4. Lastly, you can sit back and do nothing, or re-elect the current bunch.
Long time readers will remember the Hideous & Appalling ANONYMOUS person calling himself/herself/itself “Crapkiller,” who regularly posted comments on this blogsite. Before the 218 sewer assessment vote, this Piece of Work threatened to post how citizens voted in the 218 assessment, list their names, how they voted & etc., in some kind of sick neener-neener threat of Be Careful How You Vote, That Vote Is Public And I’ll Let Everyone Know How You Voted. The threat was to real people, real votes, real time, a real threat. At the time, I posted a notice that Crap had crossed the line and I’d be hitting the delete button for all her/his/its postings. Another ANONYMOUS commentor calling himself “Shark Inlet” protested and said I should issue a warning then if real time, real people “threats” were made, I could then start dumping “Crap.” (I gathered that Crap and Inlet were “friends.”) I did so and Crap mercifully went away for a while, maybe. But at least the threats to “out” peoples’ votes before an election stopped.
Some ANONYMOUS person has recently posted information in the comment section professing to “out” some other ANONYMOUS person who posts as “Shark Inlet,” who is apparently a real person with a real name living in Los Osos in real time. I say, apparently, because even though this person called me, I still have no way of verifying who was on the other end of the phone. (This is how seriously nutty a small percentage of people here in Los Osos have gotten about all things sewerish.)
I posted the following warning on the comment section regarding this information, but I think I need to post it here as well. If ANONYMOUS posters start threatening real people in real time in a real town, I will start hitting the delete button on them. If ANONYMOUS posters have real evidence that some crime has been committed, they need to contact the proper authorities. If they wish to call each other names, they’ve already been warned to not get all potty-mouthed or Mother Calhoun will start hitting the delete button on them as well. One ANONYMOUS poster calling another ANONYMOUS poster a liar or unethical or a sleazy doody-head is simply comical, since neither party has any credibility at all. Meanwhile, to all my readers, I re-post my caveat below, the one that I posted on the Oct 13 comment section. You have been warned :
WARNING! WARNING! I need to remind the reader that the above postings were posed ANONYMOUSLY. As I have warned folks before, ANONYMOUS posters on this site and any other site have no credibility, so caveat emptor. If somebody has evidence of an actual "crime" that whoever is supposedly committing, take it to the DA, who, likely will snort through his nose and push the file off his desk. Dirty tricks and anonymous posted lies and spin and other made up stuff, while utterly lacking in ethics, are (alas) common practices by a whole lot of people. There are incredibly powerful financial and political interests at work in this community, so that buys and/or creates a lot of dirty tricks, cover-ups, misdirection and flat out pressure to do whatever certain interests want to see done. The opinions expressed in the main body of this blog are mine -- real person, real name. All comments posted here in the comment section, even if they claim to contain somebody's "real" name, are ANONYMOUS and need to be treated as such.
7:16 AM, October 13, 2008
CSD Candidate Forum Last Night.
About 75 people turned out last night for the League of Women Voter’s Candidate Forum for the CSD Board. Hooray for all the Candidates running. Hooray for the League. Hoory for the folks who turned out to ask and listen to questions of concern to them. Let’s hope the whole community is paying attention and actually gets off its duff and votes.
Appropos of Which, From the Internet. Something to think about as we slog through another election cycle
With the exception of “lobbyists,” I have to agree with much of this. Without campaign reform (money, money, money) the problem of our elected officials needing to raise obscene amounts of money every day for what has turned into a 24/7/365 campaign season, the problem will not be lessened. On the other hand, We The People are also the only ones who can elect officials and or change our constitution or whatever is needed, which can change the rules governing the way our campaigns are run, so it’s back to square one as well.
Subject: The Truth of the Matter is!
Politicians are the only people in the world who create problems and then campaign against them.
Have you ever wondered why, if both the Democrats and the Republicans are against deficits, we have deficits?
Have you ever wondered why, if all the politicians are against inflation and high taxes, we have inflation and high taxes?
You and I don't propose a federal budget,
the President does.Y
ou and I don't have the Constitutional authority to vote on appropriations' the House of Representatives does.
You and I don't write the tax code,
Congress does.You and I don't set fiscal policy,
Congress does.You and I don't control monetary policy,
the Federal Reserve Bank does.
One hundred senators, 435 congressmen, one president, and nine Supreme Court justices 545 human beings out of the 300 million are directly, legally, morally, and individually responsible for the domestic problems that plague this country.
I excluded the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered, but private, central bank.
I excluded all the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman, or a president to do one cotton-picking thing. I don't care if they offer a politician $1 million dollars in cash. The politician has the power to accept or reject it. No matter what the lobbyist promises, it is the legislator's responsibility to determine how he votes.
Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party.
What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of a Speaker, who stood up and criticized the President for creating deficits.
The President can only propose a budget. He cannot force the Congress to accept it.
The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating and approving appropriations and taxes.
Who is the Speaker of the House? She is the leader of the majority party. She and fellow House members, not the President, can approve any budget they want.
If the President vetoes it, they can pass it over his veto if they agree to.
It seems inconceivable to me that a nation of 300 million cannot replace 545 people who stand convicted -- by present facts -- of incompetence and irresponsibility.
I can't think of a single domestic problem that is not traceable directly to those 545 people.
When you fully grasp the plain truth that 545 people exercise the power of the federal government, then it must follow that what exists is what they want to exist.
If the tax code is unfair, it's because they want it unfair.
If the budget is in the red, it's because they want it in the red.
If the Marines are in IRAQ, it's because they want them in IRAQ.
If they do not receive social security but are on an elite retirement plan not available to the people, it's because they want it that way.
There are no insoluble government problems.
Do not let these 545 people shift the blame to bureaucrats, whom they hire and whose jobs they can abolish; to lobbyists, whose gifts and advice they can reject; to regulators, to whom they give the power to regulate and from whom they can take this power.
Above all, do not let them con you into the belief that there exists disembodied mystical forces like 'the economyʼ, 'inflationʼ, or 'politics' that prevent them from doing what they take an oath to do.
Those 545 people, and they alone, are responsible.
They, and they alone, have the power.They, and they alone, should be held accountable by the people who are their bosses provided the voters have the gumption to manage their own employees.
We should vote all of them out of office and clean up their mess!
What you do with this article now that you have read it is up to you, though you appear to have several choices:
1. You can send this to everyone in your address book, and hope they do something about it.
2. You can agree to vote against everyone that is currently in office, knowing that the process will take several years.
3. You can decide to run for office yourself and agree to do the job properly.
4. Lastly, you can sit back and do nothing, or re-elect the current bunch.
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