What’s up with the Stadium Swindle Lawsuit?

Donna and I were fortunate to be able to attend Friday’s hearing on the People’s Homeless Task Force vs the City of Anaheim, a suit that aims to overturn, on Brown Act grounds, Anaheim’s very unfavorable and suspicious sale of the Stadium and surrounding property. Many of our friends and co-petitioners tried to watch the proceedings on livestream, but the Court’s livestream is no longer working, so they’ve asked me to give a little report. I’ll ask our great attorney, the undefeated Brown Act fighter Kelly Aviles, to correct me if I get anything wrong, and I’ll fix it here quickly.

First, know that while this started as a Brown Act suit, attempting to show that this bad deal was made in such secrecy and collusion that it needs to be re-negotiated from square one, it was “BIFURCATED” last year to a California Public Records Act case alongside and preceding the Brown Act case, since it was pretty apparent we were not getting many of the documents and records we needed to make our case.

And it was, oh, 20 months ago, January of 2020, that we made our request for records regarding the swindle, a very broad request which the City describes on page 6 here.  A month later, two Februaries ago, the City responded with a vast document dump of over 2400 pages, mostly pretty useless to us.  Aviles responded with a “writ of mandate” demanding more – let’s just say there is good reason to believe there are important documents the City is pretending not to have, plus many they don’t want to share on pretty shabby pretexts:

Anaheim’s Shabby Pretexts for Secrecy

You can read the City’s 23-page “Opposition to Writ of Mandate” here.  First they swear up and down that they’ve looked hard enough and given us enough and should not be forced to do more. They claim to get over 900 records requests a year (a look at the city’s website suggests that’s not true, unless they’re only sharing a fraction of those requests with the public.)  And they claim that compliance with OUR demand required the discomfiting of OVER 75 Anaheim employees – that is, the heads of several departments, who in turn each passed the request on to a dozen or so subordinates.

Aviles pointed out Friday to a receptive Judge David Hoffer, this is not usually the way things are done, farming out the document-gathering process to 75+ employees, many of whom will be motivated one way or another to be less than forthcoming.  Ordinarily, a search of this type is done through a city’s I.T. system.  But this 75+ employee method allowed the City, when asked what method of searching was done, to protest, “There’s no way 75+ workers can remember that, 18 months later!”  Doubly convenient, as the 18-month gap was largely due to delaying tactics by the City (which didn’t prevent their blissfully un-self-aware attorney from blaming delays on Aviles.)

The City’s “Opposition to Writ of Mandate” bristles with creative reasons to conceal records, all of which Aviles tore apart in her “Reply Brief.”  Just a few of those:

1. THE PRESUMPTION OF “JUST TRUST US.”  Perhaps the City’s most amusing contention is that “Government agencies are entitled to a presumption that they have reasonably and in good faith complied with the obligation to disclose responsive information.” (Page 8.)  Where did the City pull this “presumption” out of? They cite ACLU of Northern Cal. v. Superior Court, as well as a cryptic passage in Cal. Evidence Code § 664 “It is presumed that official duty has been regularly performed,” but I can report this novel new presumption doesn’t pass the laugh test in the Courtroom.  To speak plainly, if the People felt the government could always be trusted, there would not be a Brown Act, nor a CPRA.

Aviles on page 5 quotes THE FREAKING SUPREME COURT in response to a similar contention: “It is no answer to say . . . that we must presume public officials conduct official business in the public’s best interest. The Constitution neither creates nor requires such an optimistic presumption. Indeed, the rationale behind the Act is that it is for the public to make that determination, based on information to which it is entitled under the law.” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 625.)

2. ATTORNEY-CLIENT PRIVELEGE.  Anaheim City Attorney Robert Fabela was made part of the City’s very small and intimate “negotiating” team, and now the City’s contending that any communication involving him is protected by attorney-client privilege.  Was this too-clever-by-half arrangement planned to work this way?  It probably won’t.  Aviles, page 9

“…the City is taking the position that everything the City Attorney does is privileged. However, as Chief Justice George warned, the analysis is not that simple when the attorney preforms functions other than pure legal advice, like being a part of the negotiating team. ‘Communications between persons who stand in an attorney-client relationship are not privileged in every instance, because it sometimes occurs that an attorney-client relationship exists, but that the attorney also acts in another capacity for the client, as, for example, the client’s agent in a business transaction.’ (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 744, Chief Justice George concurring.)”

(An in-camera hearing is possible, between Hoffer and the City, on each specific record the City wants protected by this privilege, but Hoffer is reluctant to do such a thing that would by definition exclude the petitioner.)

3. THE PUBLIC’S GREAT INTEREST IN NOT KNOWING CERTAIN SHIT!  Were you aware of this?  On page 16 the City alerts us that “Government Code Section 6255 establishes a ‘catchall’ or ‘public interest’ exemption for records when ‘on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.’ The scope of the public interest exemption is not limited to specific categories of information or established exemptions or privileges. Each request for records must be considered on the facts of the particular case in light of the competing public interests. Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338. The City withheld approximately five documents pursuant to this exemption, each of which was a draft containing information for which confidentiality is in the public interest given the context of Stadium Site financial negotiations. (Hmm… that last part gets you wondering, eh?)

But Aviles, on page 6, responds talk to the hand: “the City does not even address how the public interest served by withholding these records could clearly outweigh the substantial public interest in disclosure, given the serious concerns raised by the stadium sale and the secrecy with which the transaction was conducted. The mere “pronouncement” of an exemption, along with the rote resuscitation of its language, falls far from meeting the heavy burden to justify nondisclosure and overcome the presumption of openness.”  (In fact Kelly scores the City MANY times for the same thing, naming off or “reciting” some principle that supposedly gets them off the hook, without specifying why or how it applies to them.)  And then on page 7, “Nor does the City balance the intense public interest in the sale of the City’s largest asset against the alleged public interest in nondisclosure.” Oh, snap!

And there’s more, much more, but I am taking into consideration the overriding public interest in me not putting you to sleep if I haven’t already. Let me just finish with an ominous passage from Aviles page 11, where she turns the City’s claims around on them:

“Given that the City responds to over 900 CPRA requests a year, it is important that this Court address this issue to ensure that the City’s future behavior is in line with the legal requirements. Additionally, given Petitioner’s interests in City government, it is also extremely likely that Petitioner will file future CPRA requests.” Petitioner – hey, that’s us! The People’s Homeless Task Force!

Let’s see, what else?

Interestingly, there’s still not much “settled law” or “precedent” related to California’s Public Records Act – you could say that’s one thing we’re in the process of creating here!  But as Aviles and Hoffer both said, the CPRA was based largely on the national FOIA (Freedom of Information Act) so to a large degree we can look toward FOIA cases for precedents.

(Doesn’t Judge Hoffer look like Duane Roberts?)

Aviles, Donna and I all had the impression that Judge Hoffer seems sympathetic to us, the Petitioners – most of his skeptical comments and questions were directed toward the City. Adding to our optimism, he even began to speculate on the method by which ATTORNEY’S FEES would be determined – not something he’d be doing if he thought he was going to rule in the City’s favor.

Hoffer aims to have an order ready in time to have a status conference October 8.  He would really like to get to a point where we plaintiffs have all the documents we need so we can get to the Brown Act portion of the lawsuit by DECEMBER 10.

Stay tuned to the OJ Blog for your Stadium Swindle / CPRA / Brown Act news!

Update Monday morning – Hoffer’s Ruling

First thing this morning we got the Judge’s ruling, and it’s mixed but brief short, only 3 pages. You can read it here, and Spencer at the Voice of OC has reported on it here. PS. I crossed out the word “mixed” above, since Kelly Aviles told me “the ruling is EXCELLENT for us!”

So let me start with where Hoffer ruled AGAINST us – we wanted the City to be ordered to “disclose allegedly exempt material” that it had listed. Hoffer will hold an in-camera review of everything withheld on a basis other than attorney-client privilege. As far as the latter, Hoffer seems satisfied with Fabela’s Declaration that this material is privileged.

But the good part: Hoffer finds that the burden of showing their search was adequate is on them, and “the City fails to sustain this burden.” Therefore, the City is ordered to conduct another search: “This search shall be limited to electronically stored documents related to the stadium site. As to the search terms themselves, the court orders the parties to meet and confer. Whatever terms are agreed upon must be utilized uniformly across all City departments (unless the parties stipulate to some other procedure).”

I missed a deposition?

Spencer describes the early August deposition of Jennifer Hall, who is Anaheim’s Assistant City Clerk – that nice blond lady who sometimes helps people get their speaker cards in at Council meetings. I had missed that deposition, and it turns out Jennifer is the only person Aviles has deposed. Why Jennifer? Because “when you want to depose an entity like the city you have to issue what’s called a “deposition notice of the person most knowledgeable” and then the city gets to decide who is the most knowledgeable on topics you’ve listed. They chose Jennifer Hall.  Well, she clearly was not the person most knowledgeable on a number of issues, but the city refuse to produce anyone else,” explains Aviles. Here’s Spencer:

Sidhu (left) who got himself appointed to the city’s negotiating team, apparently didn’t produce any texts messages, emails or memos about the stadium sale in the public records request — which saw a massive dump of files like multiple repeats of slideshows, stadium sale agreements and the draft appraisal. 

“Apparently, Assistant City Clerk Jennifer Hall has never received a text message from Sidhu when she’s put together a records request. 

“’Do you recall ever receiving a text message in response to a CPRA request from the mayor?’ Aviles asked Hall in an Aug. 3 deposition. 

“Hall responded, ‘Not that I can recall.’

“In the deposition, Aviles also tried to get more information on the city’s negotiating team. 

“’There were certain people that were heavily involved, for example, the mayor that was heavily involved in the stadium negotiation. Did anyone talk to the mayor to identify who he had been in contact with about the stadium sale?’ Aviles asked Hall. 

“’I did not speak with the mayor. I do not know who else may have spoken to him in that regard,’ Hall responded.”

*****

I can’t wait for the Brown Act portion of the trial, when Aviles will be able to depose City folks who won’t be able to say they don’t know anything. Most entertaining will be Mayor “Clownshoes” Sidhu, who will writhe like an eel. But most helpful will be former City Manager Chris Zapata, who was part of the negotiating team, following orders, but was later fired for no good cause. His golden parachute came with an agreement not to talk. But a subpoena and deposition trump that. And I’ve heard a rumor he’s looking forward to co-operating!

To be continued…

About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.