Comes now the judicial ruling in 2023-01329927 Clayton-Tarvin v. City of Huntington Beach, the case brought by Lee Fink of Irvine’s Brower Law Group; Brea attorney Brett Murdock; and City of Orange attorney Gregory Pleasants; against the City for wrongfully withholding critical evidence of its settlement with owner of the Pacific Air Show, with whom the city settled on extremely favorable terms for that plaintiff, who previously and subsequently donated substantially to Councilmembers’ campaigns.
Let’s go straight to the press release:
Judge Tentatively Awards $182,092.50 in Attorneys’ Fees Against
Huntington Beach for Wrongfully Withholding Air Show Settlement
Award is Double the Amount City Had Argued Was the Maximum Allowable
HUNTINGTON BEACH, CA – An Orange County Superior Court Judge has tentatively ordered the City of Huntington Beach to pay $182,092.50 in attorneys’ fees and costs after the City wrongfully withheld the 2023 Huntington Beach Airshow Settlement. The Court’s award is more than twice the $91,042.82 that the City argued should be awarded.
The fee award stems from a case brought by Huntington Beach resident and Ocean View School Board trustee Gina Clayton-Tarvin under the California Public Records Act, which mandates an award of attorneys’ fees when a government agency wrongfully withholds a public record. The award came after Clayton-Tarvin’s lawyers had offered in July to settle the dispute for $176,263, which the City rejected by offering $35,000 and later $60,000. Since that time, the City has spent unknown thousands of dollars opposing the fee motion.
Gina Clayton-Tarvin issued the following statement regarding the Court’s tentative ruling:
“Once again, Michael Gates has played the Pied Piper, leading the city into wasting hundreds of thousands of unnecessary legal fees. The City could have settled this matter for less money to my lawyers—and less money to outside lawyers—if they had settled this matter six months ago. In fact, the City should have spent zero dollars if it had just followed the law in the first place.”
In May 2023, just days after then-mayor, and now state Senate candidate, Tony Strickland announced the settlement of the Airshow litigation, Clayton-Tarvin requested that the agreement be released. When City Attorney Michael Gates refused to release the document, Clayton-Tarvin was forced to file an action in Superior Court. During the course of the litigation, the City unnecessarily ran up costs by filing a fruitless demurrer, a rejected ex parte application, and refused to stipulate with Clayton-Tarvin’s counsel to expedite the hearing of the case.
When it was finally released, the Settlement Agreement was not for the announced cost of $5 Million, as Gates, Strickland, and other members of the Huntington Beach City Council majority claimed, but rather will cost the City more than $40 million in cash payments, parking concessions, and fee waivers, while giving the Pacific Airshow (owned by Code Four and Gates and Strickland’s political benefactor) exclusive rights to the airshow for the next 40 years. Even despite the purported settlement, the City was still liable for claims brought by Pacific Airshow against former Mayor Kim Carr. After Carr prevailed on a demurrer, Pacific Airshow dismissed the case against her without any payment by Carr.
The Airshow Settlement is now the subject of an audit authorized by a bipartisan vote of the California Joint Legislative Audit Committee. Gates’s office continues to expend legal resources in litigation which he has lost before both state a federal courts of appeal. Meanwhile, Strickland is currently running for a vacant seat in the California State Senate claiming to be a fiscal conservative (emphasis added).
The Court will hold a hearing on the fee award on Monday, January 6, 2024, at 1:30 p.m. in Department C-13 before Hon. Jonathan Fish. The case is titled Clayton-Tarvin v. Huntington Beach, et al., OCSC Case No. 30-2023-01329927-CU-WM-CJC.
For more information, contact:
Gregory Pleasants, (657) 561-5886, Gregory@GregoryPleasantsLaw.com
Brett Murdock, (714) 582-2217, Brett@MurdockLaw.com
What was tentative last week became permanent today — and it’s a crushing blow to be paid by Huntington Beach taxpayers due to their City Attorney Mike E. Gates’s selfish deference to the Council’s (and his own) donor, owner of the Pacific Air Show. This is from the revised press release:
Motion for Attorney Fees Petitioner Gina Clayton-Tarvin’s Motion for an Award of Reasonable Attorney’s Fees and Costs is granted in the amount of $180,260 in attorneys’ fees and $1,832.50 in costs. The court declines to rule on Respondents’ evidentiary objections because they are not material to the disposition of the motion.
Petitioner moves under Government Code section 7923.115, for an award of attorneys’ fees in the lodestar amount of $278,972.50, enhanced with a 2.0 multiplier to $557,945; and, for entry of $1,832.50 in costs, per the costs memorandum filed on 7/17/24 (ROA 125). Respondents do not dispute that Petitioner is the prevailing party for the purpose of an award of reasonable attorneys’ fees and costs under the statute, but they dispute the “reasonableness” of the amount of the attorneys’ fees sought and contend that the lodestar figure should “be adjusted down by 50%” and that the total award should not exceed “$91,042.82, inclusive of costs.”
A court assessing attorney fees begins with a touchstone or lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney … involved in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48; see Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393 [applying “lodestar” method to a motion for attorneys’ fees under the CPRA].) “In determining hourly rates, the court must look to the ‘prevailing market rates in the relevant community.’ (Citation.) The rates of comparable attorneys in the forum district are usually used. (Citation.) In making its calculation, the court should also consider the experience, skill, and reputation of the attorney requesting fees. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009, internal citations omitted.) It is within the court’s discretion to decide which of the hours expended by the attorneys were “reasonably spent” on the litigation. (Meister v. Regents of Univ. of California (1998) 67 Cal.App.4th 437, 449.)
Where, as here, the fee motion is supported with declarations from counsel and billing records to establish the hours of work, the party opposing the motion can either “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” “In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563–564.)
After having reviewed the supporting declarations from counsel, including the billing records, and based on the court’s familiarity with the presentation of this case and the actions that were required, the court finds Petitioner is entitled to a reasonable award of $180,260 in attorneys’ fees. This amount was reached by the findings summarized in the table, below.
ATTORNEY HOURLY RATE TIME REASONABLY SPENT TOTAL G. Pleasants $600 246.2 $147,720 B. Murdock $600 24.6 $14,760 L. Fink $700 25.4 $17,780 The court does not find that an “across-the-board” cut of 50% is appropriate; however, certain “line items” on the billing statements were deducted for inefficiencies, duplication, and the performance of tasks that are considered clerical (for which Petitioner seeks compensation at an attorney rate).
Additionally, the court does not find that a multiplier is warranted, here, because applicable factors (such as the contingency nature of the retainer agreement), were already considered when the court set the hourly rates. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.)
Petitioner is ordered to give notice of the ruling.
Whew! Nice job, Mike E! You’re building a great case for bar sanctions, if not worse, for ripping off your public employer in order to cover up your own misconduct!
I’ll unpack this for the lay audience. This was a “gift” from from Gates (and to the extent they don’t just defer to him, the City Council) primarily to Mr. Pleasants, who clearly took the laboring oar on this fee motion. (Again, this was judgment not for the underlying offense, but simply for how much to pay the attorneys who forced the City to pay for withholding material evidence of what the city did to benefit its benefactor, the Air Show owner who wanted the City to compensate him for losses it did not cause — and was willing to spend large to elect a Council who would do so. Members of that Council might logically start looking out for their own hindquarters — which logically would involve seeking advice from an outside counsel about what to do about Gates.
The problem, as longtime readers may recall, is that Mikie (short for “Michael E.”) Gates believes that as the City’s elected attorney, he is completely in charge of the City’s legal decisions — and the City Council cannot even decide to seek outside counsel without his approval, and — although one would like to believe that his previous reasoning would not apply in this case — any counsel chosen to represent the Council would have to be approved by him directly! (If this strikes you as completely insane, you’re probably reading it correctly.)
[As an aside, I’d like to remind readers that the reason that I supported Todd “NOLAINOC” Spitzer against Tony Rackauckas for OCDA back in the day was credible chismes that Racky, presumably on the lookout for someone who would give him an ample share of the goodies that the DA could give out (largely in his hyphenated “Advocate” roles) thought that he would have a very willing successor in Gates. Even the thought of this was enough for me to throw myself in front of that train.]
Gates would obviously fit right in at the Trump Justice Department (as well as the Ministry of Truth, if he creates one), so the prospect of Gates ultimately facing corruption charges stemming from the results of a Legislative Audit — from which President Trump could not grant him a pardon or other clemency — may at some point become an issue of national significance. “Local boy makes bad!”
Congratulations again to Attorneys Fink, Murdock, and Pleasants! (And also — with a wah-wah trombone sound that may precipitate closer reflection on their future choices — to the beleaguered citizens of HB.)
I would say HB voters are “paying dearly” for their own sins. They love their Michael Gates; he is their hero, their Fuhrer. And this pales in comparison to other money he has dearly cost them with all his anti-California crusades.
The HB anti-California “crusade” pales in comparison to the anti-community crusade waged by an ideological and incompetent legislature. Of course I refer to the demand from the State that cities comply with by-right housing and non-sensical RHNA housing quotas.
We seem to be enjoying a resurgence of intelligent and eloquent readership, Zenger, so you may want to explain your jargon a bit more completely.
Here’s an explainer of RHNA offered by the Lege’s ABAG dirtbags (or clean bags, depending on one’s view).
Those “anti-California crusades” were Gates playing offense, testing the limits of the system. I think that he was wrong on substance, but I could imagine people who agree with him could think that funding the risk was worth it. Wanting to raise the power to oppress voters may be a “sin” in my book or yours, but it depends on political ideology, something other than a universally held morality.
Unlawfully withholding a document that (we can presume) shows that you sold out the citizens of the city because the truth would damage you — that is flat-out corruption and a “sin” against widely held beliefs that corruption is wrong. This wasn’t spending hundreds of thousands tilting at a windmill; it was spending that money lining his own pocket and those of his benefactor at public expense.
I doubt that HB voters barraged with flashy mailers thought that they were buying into that sort of corruption — so it’s not their “sin.” And even if it were, not all voters bought into Mikie’s program — I still know many people who opposed his views — and for them it is all the more “not their own sins.” By that logic, you and I have “sinned” by electing Trump — but we tried pretty hard not to, right?