As reported in AnaheimBlog yesterday, the Coalition of Anaheim Taxpayers for Economic Responsibility (or CATER) was dealt another blow in Superior Court as the judge sent the plantiff back to rework their complaint a second time and to keep it under 12 pages.
Here’s the entire ruling: with some bolding for emphasis:
The operative pleading herein, continues its predilection for long-winded, meandering obscuring the legal substance of the claims. What rises to the surface first is the fact that nobody seems to have a clear grasp of just what violations may have occurred, and how they were ultimately remedied if at all. Rather than guessing at just what plaintiff intends to claim, this Court upon further reflection has concluded the duty to separate the chaff from the wheat ought to rest with plaintiffs, not defendants or this Court. Plaintiffs’ assertion in the opposition papers that defendant “frequently misconstrues” the pleading is not persuasive nor helpful so although defendants did not expressly attack the entire pleading on uncertainty grounds, this Court concludes sua sponte that the pleading is uncertain in light of the narrow, statutory assertions relevant to a CPRA and Brown Act case.
Some narrow points of observation. The CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies. The CPRA authorizes a declaratory relief proceeding commenced by an aggrieved party denied access to discoverable records. A party alleging CPRA violations must plead with particularity (1) the substance (in haec verba or by incorporation) of the request actually made to the public agency, (2) the response received, and (3) to the extent such information is known to the party, in what manner the response was inadequate. The judicial remedy set forth in the CPRA is available only to the party seeking disclosure of public records, and only where the public entity is allegedly improperly withholding those records. Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425; County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 127; California First Amendment Coalition v. Superior Court (1998) 76 Cal.App.4th 159, 163. Since it would clearly appear CATER has no standing to pursue a CPRA claim for an RPD made by someone else, plaintiffs must clearly state facts demonstrating standing. If no standing consider not including it. With regard to Ward, although “mootness” is not ordinarily amenable to resolution at the pleading stage, by pleading with particularity the agency’s response and what was lacking, perhaps the question of mootness will be eliminated. For example, plaintiffs identify numerous CPRA shortcomings in the opposition brief pgs. 15-16.
The Brown Act is intended to facilitate public participation in the local legislative process, and to curb misuse of the democratic process through secret legislation. To accomplish these goals, the Brown Act requires public agencies to deliberate and act “openly.” Govt. Code §54950. When an agency fails to do so, an aggrieved party may seek judicial intervention. A party alleging Brown Act violations must plead with particularity (1) which statutory requirement was implicated, (2) the precise manner in which it was violated (in light of the governing ‘substantial compliance’ standard), and (3) if the party requests an order setting aside the agency’s action, facts demonstrating actual prejudice. See Service Employees Internat. Union, Local 99 v. Options – A Child Care & Human Services Agency (2011) 200 Cal.App.4th 869, 877; Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 670-671; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1409–1410; in accord, North Pacific LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1431-1432 [analyzing ‘open meeting’ requirement under analogous Bagley-Keene Act]. Rather than accuse the opponent of “frequently misconstruing” (Opp. Brief pg. 24-25) the Brown Act claims, it is for plaintiffs to do a far better job leaving out the rhetoric and pleading with surgical precision the essential elements of the claim.
Demurrer to the SAC is sustained on uncertainty grounds. Plaintiffs shall have 15 days leave to file a Third Amended Complaint not to exceed 12 pages in length. CCP §128(a). This is the order of the Court. Plaintiff give notice.
This matter has already been argued. No further argument of appearance is invited or necessary.
Only 12 pages! Diamond needs that many pages just to set the stage for his argument.
In a comment left on Anaheim Blog, CATER’s counsel made this comment on the judge’s ruling: “We will take the judges criticisms and admonitions to heart in drafting the amended complaint. I have a feeling, though, that we are less disappointed in today’s ruling than our opponents are, because we’re left standing with a better sense of what the judge thinks this complaint must contain.”
That might be well and good, but it seems that Superior Court Judge James Di Cesare has had it with Diamond’s long winded filings that focus more on rhetoric than points of law.
Our take its CATE was created to shield it’s president, Cynthia Ward, from economic liability should she pursue a lawsuit against the city and lose. By creating a 501(c) 4 non-profit corporation, there’s a measure of financial protection in the event the group brought a lawsuit of merit against the city but still lost. While Ward and CATER might not be liable for repayment of legal costs incurred by the city — which the group maintains could have been avoided by simply catering to CATER’s demands — the organization and/or Ms. Ward may be liable for costs associated with litigation, estimated to be around $5,000 now.
Wen the City of Anaheim prevailed in the suit brought by CATER over the city’s Convention Center Expansion Bonds, which cost the city more than $200,000 to litigate, CATER surrendered on condition the city would not pursue reimbursement of said litigation costs. We’re hearing the city will not waive these costs in the Angels/Brown Act case should they prevail.
It’s high time we start treating CATER like the tea party, instead of ridiculing them, simply ignore them. They are moneyless, powerless, voiceless and USELESS.
Maybe a sharp stab to Mr. and Mrs. Wards retirement account to cover this latest fiasco will make people think twice about listening to foolish advice from lawyer turned blogger turned candidate.
Good Night Mr. Diamond (it is 3:00 PM and you seem to be UP ALL NIGHT that in itself is indicative of your stability).
Mr. Vasquez, the Ward retirement account has been hit, believe me. As far as CATER being a corporate shield for Mrs. Ward, if you actually reviewed the suit you would know that Mrs. Ward is and has been a Plaintiff in the Public Records Act complaint and I have my own butt on the line, so this is anything but frivolous. THAT is why when the Judge had the chance to toss us out of court on a technicality, he instead took two delays of 2 weeks each, reviewing the material for a full month before coming back to let us Amend to address the technical details. And that is why he limits us to 12 pages, as the other issues have been addressed (to death, I admit) in not only the original complaint, and two amended complaints, but in responses to Demurrers and Motions to Strike that have dragged on for over a year. (neither of the previous amendments were frivolous, and both were the result of complaints from the other side regarding who was and was not included in the suit, and not the suit itself.)
So tell me, when did it become evil to stand up for the rights of Anaheim taxpayers? Did you know the City did not bother denying the Brown Act was violated the night City Council approved the Angels deal? Their argument is that they violated State law in a way that should not carry consequences. Great legal strategy, but not what I am looking for in public leadership values. As far as the CPRA complaint, Judge DiCesare already noted in a previous Tentative that Mrs. Ward will not be pursued for costs, as it is clear that I asked for and did not receive more records than are being admitted to by the City, despite their own denials. That the records we DID put our hands on later proving responsive records were withheld illegally also tend to potentially incriminate folks would have NOTHING to do with motive to withhold additional documents, of course….Judge DiCesare could have dumped us, if he saw no merit in this it would go against his long standing record of fairness to keep dragging the City and Angels through the case if there was not something there to litigate. Unless you bother to dig into the case and the underlying possibility for fraud against taxpayers, you are blowing smoke up your own kilt, and while you may find it enjoyable, the rest of us are not enlightened by your erroneous views. Greg, we shall have to post the Amended Complaint so others can see what is going on, instead of leaving it to be filtered through the bias of those who clearly have a stake in the outcome.
Out of curiosity, why didn’t you boldface this sentence, Dan?
That’s probably the most important substantive sentence in the ruling, other than the one giving us leave to amend rather than throwing out the case.
As for the Judge’s criticisms, I welcome them and take them seriously. We now have a good idea of how to proceed — which is what the demurrer process is intended to provide us — and the complaint (without attachments) will comport with the Judge’s instructions.
I presume that your trash talk involving a case (and a field) that you don’t understand is your own initiative, as I’d like to think that neither of our opponents would encourage you to pursue it. But I could be wrong there.
You didn’t have a good idea on how to proceed the first two times. And trash talking on fields you don’t understand is par for the course.
Nope. The first amendment was “of right”; after filing a complaint, you get a chance to supplement once for free based on what you’ve learned since then. The second was because the judge wanted us to include the Angels as Defendants, so we did. This is the first test of the pleadings where we’ve gotten a substantive response from the court. We did not feel that we were required to provide the degree of specificity that the court believes we should have provided, but we respect and accept the court’s view on this, so now we will.
You still don’t understand the importance of the section that I boldfaced and blockquoted above, which is why half of your comment is more trash talk.
Stick to mindless reflexive PR, Dan — as if you aren’t already always doing so.
The judge has pretty much said you don’t know what you’re complaining about.
By the way, Dan — your gallant and loyal kleptocratic Republican fellow-liberal-hating buddy Matt Cunningham won’t publish my response to your last attack on me there, after I noted that you have a tendency here to bash people based on social class. Maybe you’ll be brave enough to publish it here.
Happy to ask Matt to publish your response. You might not know this, but I have considerable experience working a family farm. Chickens are incapable to showing affection for humans and are otherwise filthy vile creatures that often kill malformed members of their coop. Pigs are considerably cleaner and more intelligent creatures that chickens.
But back to the task at hand which you refuse to address. Why do you make your own family sacrifice for your ill-fated political endeavors that place your ego ahead of their well being? It’s makes you a bad husband and a terrible father. Please continue to hold faith you’ll prevail in your lawsuit. Lawyers I have shared the ruling with don’t see it as you do.
hey cheminowski im not sure what kind of farm you have all this considerable experience with but like so many other things you are wrong about chickens they are not filthy vile creatures who are incapable of showing affection I think you were talking about yourself. please stick to topics you know something about.
Family dairy farm in Upstate NY; I’ve raised hundreds of chickens. Have no qualms about eating them.
I’ve raised calves and lamb too. I can’t eat veal or lamb to this day. Those animals are like pets and show affection. Baby pigs are cute too. But pigs are much cleaner and smarter animals than chickens.
I’m not wrong about chickens.
you are wrong ive raised chickens my whole life I cant remember when I didn’t have chickens ill always have chickens to me they are the best pets a person can have I think its pretty safe to say I know a lot more about chickens than you do. if you were around that many chickens it was a commercial operation and im sure they lived in squalor like most chickens do on commercial farms because they don’t give a shit about them. you know nothing.
It was a family farm and not a commercial operation; eggs were sold along with home grown produce. Hundreds of chickens over the course of five years is a bigger scale that you’re used to, but it wasn’t a massive chicken operation by any means.
Looks like Arte just lost another three weeks.
All this talk about chicken. I thought this had something to do with CATERS member rolls.