Normally, we’d publish a press release under the authorship of “Admin,” but I just have too much to say about this one.
This press release come from Lee Fink and the law firm he works for, who are representing two of the most upstanding members of the political scene in Huntington Beach over the past two decades. They want to block advancement-thirsty HB City Attorney Mikee Gates O’Hell from forking over big taxpayer money to the Pacific Air Show in order to “settle” a frivolous case — with (opinion here, but it’s far from far fetched) the likely outcome being that a share of that money will be recycled into the campaign funds of City officials who help facilitate this “settlement.”
Why do I say that? Don’t miss Paragraph 37 of the complaint, which I’ve rendered in greasy, grimy, gruesome green.
To separate my shocked opinion from the material in the press release, so you can read it carefully to distinguish them. I’ve boldfaced names and organizations involved because that’s what some of the best journalists do with lurid tales. (My own commentary at the end will be in hellfire red-orange.)
Here’s Lee’s firm’s press release.
FOR IMMEDIATE RELEASE
June 29, 2023
HUNTINGTON BEACH RESIDENTS FILE SUIT IN ORANGE COUNTY SUPERIOR COURT TO STOP THE $7 MILLION AIRSHOW SETTLEMENT GIVEAWAY
HUNTINGTON BEACH, CA – Former Huntington Beach Mayor Constance Boardman and Former Huntington Beach Planning Commissioner Mark Bixby are filing an application with the Orange County Superior Court to enjoin the City from implementing the $7 Million settlement in the Pacific Airshow litigation.
Boardman and Bixby will seek to file a taxpayer action alleging that the Airshow Settlement is an unlawful gift of public funds. Section 526a of the Code of Civil Procedure allows a resident taxpayer to file suit to enjoin a waster of public funds.
The complaint by Boardman and Bixby alleges that the lawsuit, filed in October by Pacific Airshow LLC, is wholly without merit. Even the City recognized that the Airshow Litigation was without merit, as it filed a detailed demurrer (i.e. motion to dismiss) which demonstrates the fatal flaws in Pacific Airshow’s case against the City. But instead of defending the action City Attorney Michael E. Gates and Mayor Tony Strickland announced a settlement on May 9, 2023. But because Pacific Airshow’s claims against the City are wholly without merit, the settlement is without value, and the $7 million settlement by the City is an unlawful gift of public funds.
The City has still refused to release the terms of the settlement agreement.
Plaintiff Constance Boardman issued the following statement:
“In the eight years I served on the Huntington Beach City Council, I never saw a case where the City settled before the Judge even ruled on the City’s motion to dismiss. It is particularly egregious here, where it is clear that the City is not responsible for cancelling the airshow; the oil spill caused the cancellation. The City should not be paying for this outrageous and secret settlement.”
Plaintiff Mark Bixby issued the following statement:
“As a Huntington Beach resident and taxpayer, I’ve been paying close attention to city hall for more than 20 years and this is the most outrageous abuse of taxpayer dollars that I have ever seen. The City could have easily defended against the airshow operator’s lawsuit over cancellation due to the oil spill, but instead chose to settle without a fight by paying millions of dollars to a close political supporter of the city council majority and the city attorney. This cannot be allowed to stand.”
A copy of the complaint that Boardman and Bixby will seek to file is attached. The matter will be heard on Friday, June 30, at 8:30 a.m. in Department C-32 of the Orange County Superior Court before Hon. Walter Schwarm. Proceedings can be viewed on Zoom via the Court’s website at: https://www.occourts.org/media-relations/aci.html
Contact
For more information, contact:
Lee Fink(Brower Law Group, APC, Lee@BrowerLawGroup.com, (949) 328-1548).
Lee K. Fink
Brower Law Group, A Professional Corporation
100 Pacifica, Suite 160
Irvine, California 92618
Some typographical edits included and some non-material information omitted in the above.
UPDATE FRIDAY 6/30, 1:30 PM
A hearing was held today before Hon. Michael Strickroth in the Orange County Superior Court this morning on Connie Boardman and Mark Bixby’s application for leave to intervene and for an OSC re preliminary injunction.* The Court found that the application had merit. But because the case is assigned to Hon. Martha Gooding, he felt that it was best to allow Judge Gooding to hear the applications with a full set of briefing. He ordered any party opposing the request (the City and Pacific Airshow LLC) to respond by Monday, July 3, and set the hearing on the motions for July 17, 2023, at 1:30 p.m. in Department C-31. That is the same date as the hearings set for the demurrer by former Mayor Kim Carr.
The public will be able to attend in person. Proceedings can be viewed on Zoom via the Court’s website at: https://www.occourts.org/media-relations/aci.html
Lee K. Fink
Brower Law Group, A Professional Corporation
100 Pacifica, Suite 160
Irvine, California 92618
STORY RESUMES BELOW
I (Greg) am putting in an unformatted version of the complaint because our software sometimes gets persnickety about PDFs. COMPLAINT APPEARS BELOW. Note that this is not a new lawsuit but an intervention in an existing one — something that happens, among other times, when the settlement of a suit is thought to be an unfair collusion between parties.
COMPLAINT-IN-INTERVENTION
BROWER LAW GROUP A PROFESSIONAL CORPORATION
BROWER LAW GROUP, APC
Lee K. Fink (SBN 216293)
100 Pacifica, Suite 160 Irvine, California 92618
Attorneys for Intervenors Constance Boardman and Mark Bixby
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE
PACIFIC AIRSHOW, LLC,
a California limited liability company,
Plaintiff,
v.
CITY OF HUNTINGTON BEACH,
a California charter city;
KIM CARR, an individual;
and, DOES 1 through 50,
Defendants,
CONSTANCE BOARDMAN, an individual;
MARK BIXBY, an individual,
Intervenors.
Case No. 30-2022-01287749-CU-BC-CJC
Assigned for All Purposes to:
Hon. Martha K. Gooding
Department C-31
COMPLAINT-IN-INTERVENTION FOR INJUNCTIVE RELIEF (C.C.P, § 526a)
Action Filed: October 21, 2022
Trial Date: None Set
CONSTANCE BOARDMAN, an individual;
MARK BIXBY, an individual,
Plaintiffs-in-Intervention,
v. CITY OF HUNTINGTON BEACH, a California charter city;
MICHAEL E. GATES, in his official capacity as City Attorney for the City of Huntington Beach;
TONY STRICKLAND, in his official capacity as Mayor of the City of Huntington Beach;
ROBIN ESTANISLAU, in her official capacity as City Clerk of the City of Huntington Beach;
PACIFIC AIRSHOW, LLC, a California limited liability company;
ROES 1-25, inclusive, Cross-Defendants.
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Plaintiff’s-in-Intervention Constance Boardman and Mark Bixby allege as follows:
INTRODUCTION
1. This is a taxpayer action brought pursuant to Section 526a of the Code of Civil Procedure. Through this action, Intervenors Constance Boardman and Mark Bixby seek to prevent the City of Huntington Beach (the “City”) from illegally giving away literally millions of dollars of taxpayer funds and, according to intimations made by the Mayor at a press conference held May 9, 2023, a perpetual license to operate an airshow in the City.
2. Plaintiff Pacific Airshow, LLC (“PALLC”) operates the annual airshow in Huntington Beach pursuant to a specific event permit granted by the City. In 2021, as a result of a massive oil spill, which caused a huge environmental catastrophe, the third day of the three-day airshow was cancelled. The cancellation was entirely beyond the control of the City, its agencies, or officials. Indeed, the massive oil spill required containment, mitigation, and cleanup efforts that included federal, state, county, and local agencies, as well as the private companies operating the oil platforms and pipelines. The oil spill itself resulted in declarations of emergencies from both the Governor of California and the Orange County Board of Supervisors. The United States Coast Guard, as the head of a unified command responsible for the management of the oil spill, would have required a closure of the beaches and airspace, necessitating the cancellation of the third-day of the three-day event.
3. Despite the fact that the airshow cancellation was a result of events completely out of the City’s control, PALLC brought this action against the City and then-City Councilmember Kim Carr (the “Underlying Litigation”). The Underlying Litigation was and is wholly without merit. In response to the Underlying Litigation, the City (under the direction of Cross-Defendant Michael E. Gates) filed a demurrer and a motion to strike, seeking to have the Underlying Litigation dismissed with prejudice. The City also indemnified Councilmember Carr, who similarly filed a demurrer, seeking dismissal with prejudice.
4. However, on May 9, 2023, Cross-Defendant Gates, Cross-Defendant Tony Strickland, and other members of the City Council announced that they had entered into a settlement of the Underlying Litigation (the “Airshow Settlement”). Although the City has continued to refuse
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to release the executed settlement agreement, the publicly available terms of the Airshow Settlement state that the City will pay more than $7 million to PALLC to settle the Underlying Litigation.
5. This Court has the authority to prevent this massive waste of public funds. By issuing an injunction pursuant to Section 526a, the Court can stop this unlawful gift of public funds, and save the taxpayers of Huntington Beach millions of dollars.
PARTIES AND JURISDICTION
6. Plaintiff-in-Intervention Constance Boardman is a resident of and homeowner in the City of Huntington Beach. She is a taxpayer for purposes of Section 526a of the Code of Civil Procedure in that she is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax that funds the defendant local agency, including, but not limited to income taxes, sales taxes, and property taxes. Ms. Boardman is a former two-term member of the Huntington Beach City Council, having served from December 2000 to December 2004, and again from December 2010 to December 2014. Ms. Boardman is a retired biology professor and active member of the Huntington Beach community.
7. Plaintiff-in-Intervention Mark Bixby is a resident of and homeowner in the City of Huntington Beach. Mr. Bixby is a former member of the Huntington Beach Planning Commission. He is a taxpayer for purposes of Section 526a of the Code of Civil Procedure in that he is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax that funds the defendant local agency, including, but not limited to income taxes, sales taxes, and property taxes. Mr. Bixby is a retired software developer and active member of the Huntington Beach community.
8. Cross-Defendant City of Huntington Beach (the “City”) is a charter city located in the County of Orange.
9. Cross-Defendant Michael E. Gates is the City Attorney of the City of Huntington Beach, and is sued in his official capacity. Pursuant to Section 309 of the City Charter, and subject to the Rules of Professional Conduct, the City Attorney is required to “[r]epresent and appear for the City in any or all actions or proceedings in which the City is concerned or is a party, and represent and appear for any City officer or employee, or former City officer or employee, in any or all civil
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actions or proceedings in which such officer or employee is concerned or is a party for any act arising out of their employment or by reason of their official capacity,” including the Underlying Litigation.
10. Cross-Defendant Tony Strickland is the Mayor of the City of Huntington Beach, and is sued in his official capacity. Pursuant to Section 613 of the Huntington Beach City Charter, “the City shall be bound by a contract only if it is made in writing, approved by the City Council and signed on behalf of the City by the Mayor and City Clerk or by a City officer designated by the City Council and only upon the direction of the City Council.”
11. Cross-Defendant Robin Estanislau is the City Clerk of the City of Huntington Beach, and is sued in her official capacity. Pursuant to Section 613 of the Huntington Beach City Charter, “the City shall be bound by a contract only if it is made in writing, approved by the City Council and signed on behalf of the City by the Mayor and City Clerk or by a City officer designated by the City Council and only upon the direction of the City Council.”
12. Cross-Defendant, Pacific Airshow, LLC, (“PALLC”) is a California limited liability company, which does business in the City of Huntington Beach. Based on information and belief, PALLC is a party to the Underlying Litigation and the Airshow Settlement. PALLC is therefore a necessary party to this Complaint-in-Intervention.
13. The true names or capacities, whether individual, corporate, associate, or otherwise, of Cross-Defendants ROES 1 through 25 inclusive, are unknown to Plaintiffs-in-Intervention who therefore sue said Cross-Defendants by such fictitious names. Plaintiffs-in-Intervention are informed and believe and thereon alleges each Cross-Defendant herein designated as a ROE is responsible in some manner for the events and happenings referred to herein, and Plaintiff-in-Intervention will amend this complaint to show such true names and capacities when same has been ascertained.
14. Plaintiffs-in-Intervention are informed and believe and thereon allege that there is such unity of interest and ownership between the ROE Cross-Defendants, and each of them, that under the facts and circumstances alleged herein, adherence to the fiction of their separate existence as distinct and apart would sanction fraud or promote injustice. Plaintiffs-in-Intervention are also
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informed and believes and thereon allege that there is such a unity of interest and ownership between the several Cross-Defendants that each is a mere instrumentality, agency, conduit, or adjunct of the other and an inequity could and would well result if the acts in question are treated as those of one entity alone.
15. Plaintiffs-in-Intervention are informed and believe each of the Cross-Defendants herein were the agents, employees, partners, joint venturers, representatives, and/or alter egos of each other defendants-in-intervention and in doing the things hereinafter mentioned, were acting within the scope and authority as such agents, employees, partners, joint venturers, or representatives with the permission and consent or ratification of the remaining Cross-Defendants.
16. Jurisdiction is proper in this Court because both Ms. Boardman and Mr. Bixby are residents of Huntington Beach and bring this action pursuant to Section 526a of the Code of Civil Procedure “to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of” the City of Huntington, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf. Venue is proper in this Court because the acts giving rise to this action occurred within the County of Orange.
FACTUAL SUMMARY
17. Since 2016, there has been an airshow staged in the City displaying aerial stunts, airplanes, and aerobatic maneuvers.
18. In 2021, the airshow was scheduled to take place from October 1, 2021 through October 3, 2021.
19. On October 1, 2021, a 17.7-mile (28.5 km) pipeline operated by Amplify Energy, connecting offshore oil platforms with the shore, was displaced by being dragged by a ship’s anchor. The resulting spill amounted to some 25,000 U.S. gallons (600 barrels) of oil across 8,320 acres, impacting 16 miles of California’s shoreline. The oil spill was an environmental catastrophe, causing severe damage to the beautiful Huntington Beach coastline, The Pacific Ocean, and the wildlife and natural settings in Orange County.
20. On October 2, 2021, the United States Coast Guard informed the City of the oil spill. The Coast Guard became the lead agency in a unified command responding to the oil spill.
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21. By the morning of October 3, oil had already entered Talbert Marsh and other wetland areas of Huntington Beach.
22. Soon after, Governor Gavin Newsom issued a “Proclamation of State of Emergency” regarding the oil spill; the Orange County Board of Supervisors published its own countywide resolution declaring a state of emergency; and the Orange County Health Care Agency’s County Health Officer issued a health advisory recommending for anyone who had been in contact with any containments from the oil spill to seek immediate medical.
23. Because of this catastrophe, accessing the beach, the coast, and the ocean off Huntington Beach posed a severe threat to public safety. Ensuring the protection of the public required that the beach and coastline be closed off. In fact, the City of Huntington Beach had little choice in this matter. Had the City itself not closed off access to the beach and the coast, the Coast Guard and/or the State of California would have stepped in because of the public health and safety risks involved in conducting a series of high profile aerial maneuvers while a massive environmental containment, cleanup, and remediation effort was underway.
24. As a result, the airshow could not go forward on its last day, October 3, 2021, as the beaches where observers were gathered would be closed. Moreover, the Coast Guard and the unified command needed to control the airspace over the oil spill area in order to coordinate the containment and cleanup of the area.
25. Despite the fact that the City had no practical choice but to cancel the airshow, and the cancellation was caused by the oil spill, directly resulting from the negligence and carelessness of Amplify, the operator of the Huntington Beach Airshow, Pacific Airshow LLC (“PALLC”), brought an action in the Orange County Superior Court against the City and the City’s then-Mayor, Kim Carr.
26. PALLC filed a complaint alleging five causes of action: (1) breach of contract; (2) intentional interference what contractual relations; (3) intentional interference with prospective economic advantage; (4) negligent interference with perspective economic advantage; and (5) violation of civil rights pursuing 42 USC § 1983.
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27. The Underlying Action was filed on October 21, 2022, as Pacific Airshow, LLC v. City of Huntington Beach, et al., Orange County Superior Court Case No. 30-2022-01287749-CU-BC-CJC (the “Underlying Litigation”).
28. Based on information and belief, the City indemnified Kim Carr in the Underlying Litigation.
29. The Underlying Litigation was and is in all respects, wholly without merit.
30. The plaintiff in the Underlying Litigation alleges that the City entered into certain contractual obligations to PALLC, interfered with PALLC’s prospective economic advantage by canceling the airshow, and, quite remarkably, violated PALLC’s civil rights.
31. In response to the Underlying Litigation, the City, through the City Attorney Michael E. Gates, filed a demurrer to the Underlying Litigation (the “City Demurrer”).
32. Also in response to the Underlying Litigation, the former Mayor and defendant in the Underlying Litigation, Kim Carr, filed a demurrer (the “Carr Demurrer”).
33. As set forth in great detail in the City Demurrer and the Carr Demurrer, the Underlying Litigation is wholly without merit.
34. PALLC’s claim for breach of contract is without merit. The City did not have a contract with PALLC, but rather issued a permit to the entity, and therefore there is no cause of action for breach of contract. Moreover, the City was legally permitted to cancel the Airshow due to unforeseen circumstances rendering performance impossible due to health and safety reasons. Most importantly, the City has immunity for revocation of a permit pursuant to Section 818.4 of the Government Code.
35. PALLC’s claims for interference with contractual relations and prospective economic damages are without merit. Those claims are all barred by Section 815.2 of the Government Code because the City’s employees’ actions are immune from liability pursuant to Section 820.2 of the Government Code.
36. Finally, PALLC’s claims for violation of Civil Rights are without merit. PALLC claims that the City and former Mayor Kim Carr retaliated against PALLC by voting to deny certain
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subsidies for the 2022 airshow. But the action against the City in this respect is barred as a matter of legislative immunity. (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 928-929.)
37. On November 8, 2022, a general election was held in the City of Huntington Beach. At that election, four new members of the seven-member City Council were elected. Each of the newly-elected members (constituting a majority of the City Council) were supported by Kevin Elliot, the principal of Code Four, the parent company of PALLC. The new City Council members took office in December 2022.
38. On May 9, 2023, the City Attorney and the four newly elected members of the Huntington Beach City Council announced that they had settled the Underlying Litigation (the “Airshow Settlement”).
39. Plaintiff, however, does not know the details of the Airshow Settlement because, despite being a settlement of litigation against a public entity, the City has refused to release the executed settlement agreement. Indeed, an action under the California Public Records Act, seeking the release of the Airshow Settlement, is now pending in the matter of Gina Clayton-Tarvin v. City of Huntington Beach, et al., Orange County Superior Court Case No. 30-2023-01329927-CU-WM-CJC (the “Public Records Act Litigation”).
40. Based on information and belief, the Airshow Settlement would give PALLC in excess of $7,000,000 of public funds to PALLC, all to settle a totally specious lawsuit.
41. Based on information and belief, the Airshow Settlement would not lead to the dismissal of Kim Carr from the Underlying Action, leaving the City liable for any damages for which may be adjudged against her, which are based on the identical allegations as those filed as against the City.
42. Based on information and belief, members of the City Council promoted the Airshow Settlement as promising to ensure that their (yet unborn) grandchildren would be able to enjoy the Huntington Beach Airshow, suggesting that the Airshow includes terms and conditions beyond those made public by the City.
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43. Based on information and belief, Cross-Defendants negotiated the Airshow Settlement even though the City’s Demurrer had not yet even been heard by the Court, nor had the PALLC even responded to the City’s Demurrer in the Underlying Litigation. FIRST CAUSE OF ACTION Injunctive Relief (Against All Defendants)
44. Plaintiffs realleges paragraphs 1 through 43, as if fully set forth herein.
45. The purpose of Code of Civil Procedure section 526a “is to permit a large body of persons to challenge wasteful government action that otherwise would go unchallenged because of the standing requirement.” (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1240 [94 Cal. Rptr. 2d 740].) “The essence of a taxpayer action is an illegal or wasteful expenditure of public funds or damage to public property. It must involve an actual or threatened expenditure of public funds. General allegations, innuendo, and legal conclusions are not sufficient; rather, the plaintiff must cite specific facts and reasons for a belief that some illegal expenditure or injury to the public fisc is occurring or will occur.” (4 Witkin, Cal. Procedure (2007 supp.) Pleading, § 144, pp. 58–59.)
46. The expenditure of public funds to settle a wholly invalid claim is an unlawful gift of public funds. (Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 201.)
47. Here, Cross-Defendants sought to settle a wholly invalid claim through the payment of public funds to PALLC. As set forth above, and as demonstrated in the City’s Demurrer, PALLC’s claims in the Underlying Litigation were wholly without merit.
48. PALLC’s complaint alleges five causes of action: (1) breach of contract; (2) intentional interference with contractual relations; (3) intentional interference with prospective economic advantage; (4) negligent interference with prospective economic advantage; and (5) violation of 42 U.S.C., § 1942.
49. PALLC’s first cause of action for breach of contract was wholly without merit.
a. The City never entered into a contract with PALLC. In order to prove breach of contract, an actual contract between the parties must be established. (Richman v.
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Hartley (2014) 224 Cal.App.4th 1182, 1186). Here, the permit given to PALLC is not a contract. The permit gave PALLC the exclusive right to conduct an airshow in 2021 and the exclusive use and control of various City locations for event purposes. But there was no consideration given to the City. The only payment from PALLC to the City was for security from the City’s Police Department and usage of the City’s Fire and Marine Safety Department. A permit allows for an individual or group to use a public entity’s space. It not a contract. Therefore, PALLC’s cause of action for breach of contract fails.
b. Even if PALLC were able to establish the existence of a contract between it and the City, PALLC’s permit with the City explicitly declares that the City may take actions “to protect health and safety.” It cannot be disputed that an effort to mitigate damages from the oil spill constituted a protection of “health and safety.” The tickets that PALLC sold for the airshow allowed individuals to view the show from the beach, the exact area that needed to be closed in order to protect individuals from oil spill contaminants. The only reason the last day of the airshow was cancelled was for the ultimate health and safety of people and wildlife. c. Even if PALLC were able to establish the existence of a contract between it and the City, the permit explicitly declares that the City may take actions “to protect health and safety.” It cannot be disputed that an effort to mitigate damages from the oil spill constituted a protection of “health and safety.” The tickets that PALLC sold for the airshow allowed individuals to view the show from the beach, the exact area that needed to be closed in order to protect individuals from oil spill contaminants. The only reason the last day of the airshow was cancelled was for the ultimate health and safety of people and wildlife. The City is completely immune from any action for cancellation of a permit. (Gov. Code, § 818.4 [“A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of . . . any permit.” (emphasis added)].) A permit is not irrevocable and the rights granted by it can be revoked when there “is a compelling public necessity.” (O’Hagan v. Bd of Zoning
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Adjustment (1974) 38 Cal. App. 3d 722, 727; see also Burns v. City Council (1973) 31 Cal.App.3d 999, 1000).
50. PALLC’s second, third, and fourth causes of action for interference with contractual relations or economic advantage are wholly without merit.
a. Public employees are immune from lawsuits in which their discretionary authority was utilized within their scope as a public employee. (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal. 3d 224, 233; Gov. Code§ 820.2.) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. (Gov. Code, § 815.2, subd. (b).) Here, any decisions of the City’s officials in cancelling the airshow were based on “consciously balancing risks and advantages” of the health and safety risks presented by the airshow, and thus the City’s officials (and thus the City) are immune from liability. (Johnson v. State of California (1968) 69 Cal.2d 782, 794, fn. 8.)
b. In order to prove intentional interference with contractual relations, PALLC would be required to prove that: (1) there were valid contracts between PALLC and a third-parties; (2) the City had knowledge of the contract; (3) the City’s intentional acts were designed to induce a breach or disruption of the relationship; (4) actual breach or disruption of the relationship; and (5) resulting damages. (The Kind & Compassionate v. City of Long Beach (2016) 2 Cal.App.5th 116, 129.) There simply was no intentional act conducted by the City designed to induce a breach or disruption of PALLC’s contracts. To the extent that that the City was even responsible for that cancellation of the last day of the airshow, the cancellation was not designed to induce a breach of PALLC’s contracts. Rather, it was designed to protect the health and safety of the public from the results of the oil spill. Furthermore, any damage to PALLC was the result of the oil spill itself, not the City’s actions.
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c. In order to prove intentional interference with prospective economic advantage, PALLC would have to prove that: (1) there was an economic relationship between PALLC and third-parties that had a probability of future economic benefit to PALLC; (2) the City had knowledge of the relationships; (3) intentional wrongful acts on the part of the City disrupted the relationship; (4) there was an actual disruption of the relationship; and (5) the economic harm was proximately caused by the City’s acts. (Marsh v. Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 504). “Whether an act is independently wrongful depends on its unlawfulness if it is ‘proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’” (Ibid. [quoting Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159). A plaintiff asserting this cause of action must therefore illustrate that the “defendant’s interference was wrongful ‘by some other measure beyond the fact of the interference itself.’” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 348, 342 [quoting Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 392-393). The mere breach of a contract cannot amount to an independent wrongful act under this claim. (Drink Tank Ventures, LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 540.) Moreover, the wrongful act must have been conducted with the specific intent to interfere with the third-party relationship. (Korea Supply Co., supra, 29 Cal.4th at p. 1154). Here, there was no intentional wrongful act by the City. Quite the opposite; the City acted properly to protect the health and safety of the public from the results of the oil spill. Furthermore, any damage to PALLC was the result of the oil spill itself, not the City’s actions.
d. In order to prove negligent interference with prospective economic advantage, PALLC would have to prove that: (1) an economic relationship between plaintiff and a third-party that had a probability of future economic benefit to the plaintiff; (2) defendant’s knowledge of the relationship; (3) defendant was negligent; and (4) the negligence caused damage to plaintiff in that plaintiff lost economic benefits
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expected. (Korea Supply Co., supra, 29 Cal.4th at p. 1153). PALLC must prove that the City owed PALLC a duty of care. (LiMandri, supra, 52 Cal.App.4th at p. 348.) Again, PALLC cannot prove any negligence on the part of the City. Quite the opposite; the City acted properly to protect the health and safety of the public from the results of the oil spill. Furthermore, any damage to PALLC was the result of the oil spill itself, not the City’s actions.
51. PALLC’s fifth cause of action for violation of civil rights under 42 U.S.C., § 1983, is wholly without merit.
a. In the Underlying Litigation, PALLC alleges that the City violated its civil rights because, at some unstated point in time, it “voiced concerns” online over the City’s cancellation of the airshow, and that, based on PALLC’s assumption, the City “instructed” PALLC to remove the online postings and “threatened consequences” if PALLC refused to do so. According to PALLC, when it refused to remove the postings, the City Council voted to deny PALLC certain parking fees offsetting charges owed to the City (the “Parking Offset”) and to increase the permit fees for the 2022 airshow.
b. PALLC cannot prove its Section 1983 claim against the City.
c. First, the City Council’s vote is within its legislative authority, and therefore legislative immunity bars claims regarding the City Council action. (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 928-929.) In Bogan v. Scott-Harris (1998) 523 U.S. 44, 54, the United States Supreme Court held that local legislators who voted to eliminate a department of local government were absolutely immune for their actions, notwithstanding that their votes were allegedly due to their racially discriminatory animus and desire to retaliate against the department head for her exercise of First Amendment rights. (Ibid.)
d. Second, the City Council member’s votes are themselves protected by the First Amendment. “Voting by members of municipal boards, commissions, and authorities comes within the heartland of First Amendment doctrine, and the status
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of public officials’ votes as constitutionally protected speech [is] established beyond peradventure of doubt. . .” (Blair v. Bethel Sch. Dist. (9th Cir. 2010) 608 F.3d 540, 545 [quoting Stella v. Kelley (1st Cir.1995) 63 F.3d 71, 75]; Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183 [“Insofar as [plaintiff’s] lawsuit targeted the councilmembers, the basis for their liability was premised on their vote in favor of adopting the Vote 2000 program, and voting is conduct qualifying for the protections afforded by the First Amendment] [emphasis in original].) e. Finally, even if PALLC could prove a retaliatory animus on behalf of the City, and adverse action taken against it by the City (which it cannot), it cannot prove the but-for causation needed to sustain a Section 1983 case. (Huskey v. City of San Jose (9th Cir. 2000) 204 F.3d 893, 899 [post-hoc ergo propter hoc insufficient to prove but-for causation]; Conso v. City of Eureka (N.D.Cal. Feb. 10, 2022, No. 21-cv-04480-RMI) 2022 U.S.Dist.LEXIS 24357, at *33 [a plaintiff must establish a causal connection between the retaliatory animus and the subsequent injury attributed].)
52. PALLC’s complaint in the Underlying Litigation is legally insufficient. Additionally, PALLC’s complaint in the Underlying Litigation is without factual support.
53. Cross-Defendants knew that PALLC’s complaint in the Underlying Litigation was legally insufficient and without factual support when PALLC filed its complaint in the Underlying Litigation and in any event no later than when the City and Ms. Carr filed their respective demurrers. Because Cross-Defendants knew that PALLC’s complaint in the Underlying Litigation was legally insufficient and without factual support, they knew that the PALLC’s claims were wholly without merit. (Orange County Foundation, supra, 139 Cal.App.3d at p. 200.) 54. “[W]hen [public] funds are expended pursuant to a settlement agreement in exchange for the relinquishment of [a wholly invalid] claim, [s]uch an expenditure” is an unlawful gift of public funds. (Id. at p. 201.) 55. The Airshow Settlement is therefore an unlawful gift of public funds and should be enjoined pursuant to Section 526a of the Code of Civil Procedure.
COMPLAINT-IN-INTERVENTION
BROWER LAW GROUP
A PROFESSIONAL CORPORATION
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs-in-Intervention pray for judgment as follows:
1. For an order setting aside the Airshow Settlement;
2. For and order enjoining Cross-Defendants from entering into, finalizing, or performing any of the obligations that may be required under the terms of the Airshow Settlement;
3. For an order enjoining the Cross-Defendants from paying any funds to settle the Underlying Litigation;
4. For an order requiring that PALLC return any proceeds of the Airshow Settlement paid to it by or on behalf of the City;
5. For costs of suit incurred herein;
6. For reasonable attorneys’ fees; and
7. For such other and further relief as this Court may deem just and proper.
DATED: June 29, 2023 BROWER LAW GROUP, APC By: Lee K. Fink
Attorneys for Intervenors Constance Boardman and Mark Bixby
OK, back to my commentary, in fiery red-orange.
Reading through the first paragraphs of the complaint-in-intervention, I thought that HB City Attorney Mikee Gates, being business friendly and citizen-hostile, was simple prioritizing corporate interests over those of the city, which is bad, perhaps in hopes of making friends with a wealthy donor, which is worse.
Then I read paragraph 37 and was informed that the guy behind the Pacific Air Show has donated the campaigns of what is now the conservative majority in HB, which no longer attacks their would-be city dictator of a City Attorney, but loves him and follows his lead. This isn’t a gratuitous act offered in hope of contributions, as we regularly see in Anaheim; this is a gratuitous payoff, issued in the disguise of a legal settlement, for the act of the frivolously suing Plaintiff in appreciation of their getting the current pro-Gates Republican majority elected.
No one in the City Council majority — though at least two people in the Council minority — smart attorneys Dan Kalmick and Rhonda Bolton as well as Natalie Moser if she’s an attorney too — would have the wherewithal to make a decision like this without Gates’s support. This is on Gates’s tab.
It’s as if Gates looked at Harry Sidhu and decided that the problem with him wasn’t that he was corrupt, but that as a non-attorney he was sloppy, and that he figured as an attorney he could do better.
I’m not going to elaborate on why I say this, but I’d say that not only is the council majority in trouble (though they can of course blame Gates) if their immunity doesn’t extend to blatant payoffs, but that City Attorney Gates is in considerably more trouble than that. The District Attorney and/or the Attorney General should be having a very frank talk to Kevin Elliot, the head of the company that owns the Pacific Air Show, and find out who suggested that he give enough money to candidates — which I suspect will include Gates himself, but even if not — who might be willing to reverse the fortune of a dying duck of a lawsuit. That person, along with Gates himself, are in bigger trouble yet. I think that Vern still has a way to contact the FBI — and I expect that he’ll use it.
(Note to our anonymous DanC fanboy troll, or to DanC himself if that person is him: If I had wanted to be the first to publish this press release, I would have — as Admin rather than under my own name — but I thought that some of the legal analysis you see above would add value for our readers. Also, go pleasure yourself. Last sentence from Vern.)
TheLib)C beat you on this story too. What would you do without them?
LOL, yeah if slapping a press-release everyone gets in their e-mail onto your blog under your own name counts as a “story.” Greg added VALUE here, and he started writing this before Dan did his copy and paste. Also see the last paragraph of this story, Dan lover.
We will have to cover important stories whether Dan does a lazy-ass version of them or not. Because the Liberal OC is irrelevant. (Actually he did do a good story a few months ago, but I didn’t mention it because he’s such an asshole. It was about showing the photos of gun violence victims.)
I think that the commenter’s choice of pseudonym suggests that we take their statement with a soupçon of sarcasm. Or perhaps a slathering of it.
Oh, I changed the putz’ name.
Gifts of public funds happen in OC all the time. Fullerton has a long history of it. Last year the city bought a tin-can building at the airport that they were going to get in a few years anyway, and let the occupant out of the remainder of his lease. This year they jacked up the value of a piece of public land AFTER they sold it for a fraction of its new worth. In Fullerton it’s always hard to tell the corrupt from the head-up-the-ass staff and councilmembers.
Then it’s good that Boardman, Bixby and Fink are fighting this one. We should wish them luck.
$7 million to campaign contributors, for what they’d already admitted was a bogus suit. That’s a big deal.
I hear Gina’s been fighting it too, independently.
When I wrote that last bit I had a funny vision but I wasn’t going to say anything.
I was picturing Connie Boardman and Gina Clayton-Tarvin having a Marjorie Taylor-Greene / Lauren Boebert-style fight over this. “YOU LITTLE BITCH! YOU STOLE MY AIRSHOW LAWSUIT IDEA!”
https://www.thedailybeast.com/marjorie-taylor-greene-calls-boebert-a-little-bitch-on-the-house-floor
Yawn. All speculation, insinuation, guesses, and attempts at political payback and backstabbing. Boring. No facts. When you have actual facts to support your claims, then may I might find your writing even moderately compelling.
This a real person? Sounds kind of like a spam-bot, albeit an unfriendly one.
Do you doubt that this lawsuit is really happening?
Vern,
They are merely allegations. The complaint is not verified.
Yawn. This person or robot is bitching about Greg’s writing. Greg is reporting on a serious lawsuit, on a serious matter, by serious people.
I have it on good authority from a former City of Huntington Beach executive that the $7 million reimbursement is just the tip of the iceberg. The rest of the settlement also includes the City waiving all permit fees and City costs associated with hosting the air show such as law enforcement protection and maintenance/clean up for the next 40 years. The value of police services is $7 million dollars alone.
The hidden benefit to this arrangement is that it allows the owner of the air show to sell the event with these built-in concessions to a larger corporate entity for a massive sum. That’s why Gates, the 8th councilmember, is refusing to release the settlement agreement in full and why Moser came out swinging by stating publicly that the agreement is full of graft.
Our crack DA is all over this.
CRACK, eh? Does crack explain Todd? Will have to follow up on that.
Another welcome comparison between this blog and the LibOC – not only does our story have actual substance, we also have commenters like Hector.
If his chisme (above) proves true, that’s a BOMBSHELL, and YOU HEARD IT HERE FIRST.
Yah, but LibOC will have a commenter pretending to be Hector Robles any day now!
Liberal OC? Is that still a thing?
Cannot get a preliminary injunction without a verified complaint or affidavits.
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=527.
Why did they need to intervene to get an injunction??
Why would they seek an injunction without seeking a preliminary injunction?
If the facts are true, why didn’t the intervenor(s) verify the complaint?
Was this a publicity stunt? Lots of show, not much go (yet).
Someone struck out twice in court yesterday.
https://www.ocregister.com/2023/06/30/judge-denies-two-emergency-requests-related-to-huntington-beach-air-show-settlement/
Way way less here than meets the eye.
This was an emergency complaint because the party behind it believed that the money might be sent by the end of the city’s fiscal year, which was June 30. Gates told the Judge (who was substituting for the one in charge of the case) that it was actually from the new fiscal year, beginning July 1, and the judge reasonably decided that it could then wait for the judge in charge of the case to rule on it.
Gates also said, less convincingly, then even if the city forked over the $7MM+ to the Pacific Air Show people, it could easily get it back. I don’t think that that’s a given — but if it doesn’t happen, Gates will always be able to get a cushy do-nothing job for the PAS’s parent corporation — and isn’t that what really matters?
The Register erred in giving the impression that these motions were, in any way, decided on their merits.
From what I can surmise from a review of the online ROA for this case number, boardman/bixby filed an ex parte application for hearing on their motion to intervene and at least shortened time until July 17th.
After having now reviewed the Register of Actions in this matter, the court indeed granted Bixby/Boardman’s Order Shortening Time for hearing on their Motion for Leave to Intervene and Temporary Restraining Order on 6/30. (See ROA 58)
Both Bixby and Boardman filed declarations in support of the TRO as their proposed complaint in intervention was not verified.
Pacific Airshow filed an amended complaint on 6/30 also likely to resolve Carr’s motion attacking their earlier complaint.
Thank you for making yourself useful. This time.
Lee Fink has announced in a press release that according to “the Court’s website, the hearings on the Pacific Airshow case have been continued to Thursday, July 20, 2023, at 1:30 PM in Department C-31.” So you may all unclench your muscles until late afternoon on July 19, when the tentative ruling may or may not appear.
https://www.occourts.org/tentativerulings/mgoodingrulings.htm (The court indicates it intends to publish tentative ruling by 4:00 pm on July 19)
13.
22-01287749
Pacific Airshow, LLC v. City of Huntington Beach
1) Demurrer to Complaint
2) Motion for Leave to Intervene
3) Case Management Conference
NO TENTATIVE RULING IS AVAILABLE. DUE TO A CONFLICT IN THE COURT’S SCHEDULE, THE HEARING ON THIS MATTER IS CONTINUED TO JULY 20, 2023 AT 1:30 P.M. IN THIS DEPARTMENT. THE COURT WILL ENDEAVOR TO POST TENTATIVE RULINGS BY 4:00 P.M. ON JULY 19, 2023
The tentative is out. Motion to Intervene denied. Carr’s demurrer is taken off calendar as moot after Plaintiff’s filed an amended complaint late last month.
13
22-01287749
Pacific Airshow, LLC v. City of Huntington Beach
1) Demurrer to Complaint
2) Motion for Leave to Intervene
3) Case Management Conference
[1] The Demurrer by Defendant Carr to the Complaint is taken off-calendar as moot, due to the filing of a First Amended Complaint on June 30, 2023 (ROA 66).
[2] The motion by proposed intervenors Constance Boardman and Mark Bixby (Collectively “Intervenors”) for leave to intervene is DENIED.
Intervenors move, under CCP section 387, for leave to intervene as a matter of right or, in the alternative, for permissive intervention. Plaintiff Pacific Airshow, LLC (“Airshow”) is suing Defendants City of Huntington Beach (the “City”) and Kim Carr for claims arising from the cancellation of the third day of a three-day air show in 2021, after an oil spill occurred. (FAC at ¶¶ 6-19.)
As an initial matter, the Court does not find that this motion is untimely. Although there is evidence Intervenors were aware of the settlement they wish to enjoin since May 9, 2009, (see Fink Decl. at ¶¶ 4-5, Exh. 10), there is no appreciable or persuasive evidence of prejudice caused by the delay of approximately 50 days. (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 574.)
Intervention is a statutory procedure through which a nonparty to an action may become a party by requesting leave of court to (1) join the plaintiff in claiming what is sought by the complaint, (2) unite with the defendant in resisting the plaintiff’s claim, or (3) demand anything adverse to both parties. (Code of Civ. Proc. § 387, subd. (b).)
Under the statute’s “mandatory” provision, a court “shall” allow a nonparty to intervene in the action if “either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.” (Code Civ. Proc. § 387, (d)(1).)
Under the “permissive” provision, a court “may” permit a nonparty to intervene in the action “if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., § 387, subd. (d)(2).)
First, Intervenors contend intervention is “mandatory” because “[r]esidents, taxpayers, and consumers are frequently found to have the right of mandatory intervention in litigation between the government and a private party.” (Mot. at 11, citing Perry v. Schwarzenegger (N.D.Cal. June 30, 2009, No. C 09-2292 VRW) 2009 U.S.Dist.LEXIS 55594, a *6; Bustop v. Superior Court (1977) 69 Cal.App.3d 66, 70.) No one denies that Intervenors are residents and taxpayers of the City. Nevertheless, neither of the cited cases supports Intervenors’ position, because taxpayer and resident status was clearly not the basis for allowing intervention in either Perry and Bustop; these cases involved, respectively, the “official proponents” of a bill being challenged and the parents of students who could be subject to mandatory busing in a plan to desegregate a school district. Similarly, Kobernick v. Shaw (1977) 70 Cal.App.3d 914, did not involve a motion to intervene at all. The issue in Kobernick is whether the Corporations Code barred limited partners, who had already been sued in the action, from bringing a cross-complaint on behalf of the partnership where the general partner had “left the state” and allowed a default judgment to be taken against the partnership.
Intervenors have not cited any authority for the broad proposition that they must be allowed to intervene in litigation between the government and a private party, because of their status as residents and taxpayers. Indeed, their position appears to be contrary to existing case law. (Squire v. City and County of San Francisco (1970) 12 Cal.App.3d 974, 978 [trial court did not abuse its discretion in denying taxpayer leave to intervene in action brought by union against the city and county of San Francisco where taxpayer argued intervention is necessary to protect the interests of the taxpayers] compare Redevelopment Agency of City and County of San Francisco v. Hayes (1954) 122 Cal.App.2d 777, 785 [intervenors who were residents, taxpayers and property owners in the blighted area that the board of supervisors sought to redevelop “obviously” had an interest in the litigation regarding the redevelopment plans] superseded by statute as stated in Green v. Community Redevelopment Agency (1979) 96 Cal.App.3d 491, 500.)
As to their alternate request for permissive intervention, Intervenors claim they have a “unique interest” here, because they are “plaintiffs in a taxpayer action under Section 526a” and “seek to enjoin the Airshow Settlement.” (Mot. at 13.) The Court is not persuaded. “The permissive intervention statute balances the interests of others who will be affected by the judgment against the interests of the original parties in pursuing their litigation unburdened by others.” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036.) “[I]t is well settled that the proposed intervener’s interest in the litigation must be direct rather than consequential, and it must be an interest that is capable of determination in the action.” (Id. at 1037.)
The fact that Intervenors may have an interest in the use of the City’s taxpayer funds to the extent they are used to pay the settlement, does not mean Intervenors have an interest in the issues of this litigation, which solely concerns the Airshow’s claims against the City for breach of contract and interference with prospective economic advantage and contractual relations. “An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner.” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1037[emphasis added]. Any payment of money by the City to Airshow is the result of the settlement of the action. Intervenors’ interest is thus consequential, not direct.
Accordingly, the Motion to Intervene is denied. Because Intervenors have no standing in this action, they cannot seek injunctive relief, and their application for a TRO is also denied.
[3] The Case Management Conference is continued to August 28, 2023, at 9:00 a.m.
The City is ordered to give notice of all these rulings.
https://www.occourts.org/tentativerulings/mgoodingrulings.htm
So long story short, Boardman Bixby and Carr have been told they have no standing??
By the Judge?
Uh, “since May 9, 2009”? Huh?
I’m sad to say that the reasoning regarding standing seems persuasive on its face — but I’ll look forward to seeing how they respond.
This is a similar problem to that faced with respect to Anaheim. I wonder if that would also apply to a civic group, rather than a non-profit, that was suing, as Cynthia and I (and others) tried to do with CATER) last decade. I suspect that the Political Reform Act, Whistleblowing statutes, and referrals to DA Spitzer, AG Bonta, and our good friends at the FBI may be among the ways that they could get past the standing issue — because one way or another this situation smells too bad to expect that it will be allowed to stand.
Fink didn’t anticipate this standing issue?
He still has a chance to argue his clients have standing and the court’s tentative shouldn’t be adopted as court’s order.
Not Carr. She is a defendant. Her objection to the original complaint is no longer at issue due to Plaintiff filing an amended complaint on June 30th. But yeah the beach Bs got no standing. This is tentative which means the Bs will have a chance to convince the court not to adopt its tentative and grant their motion, etc.
Are Lee Fink and Bruce Fink related? I could swear Lee has the same type of briefcase Bruce used to use.