GEORGE SCHABFER OFFICE or CIVIL LITIGATION DIVISION ASSISTANT CITY ATTORNEY 1200 THIRD avenue SUITE 1100 CARMEN ., Hm THE CITY ATTORNEY mm, my mom, SAN DIEGO, CALIFORNIA 921014100 CITY OF SAN DIEGO . TELEPHONE (619) 533-5300 FAX (619) 533-5856 MARA W. ELLIOTT CITY ATTORNEY December 18, 2017 . Hon. Douglas P. Miller, Acting Presiding Justice Hon. Carol D. Codrington, Associate Justice Hon. Marsha G. Slough, Associate Justice Fourth District Court of Appeal, Division Two 750 Street, Suite 300 San Diego, California 92101 Re: Request for Publication Case No. E066367 Creed-21 v. City of Wildemar (Wei-Mari) (?led Nov. 28, 2017) Honorable Justices: Pursuant to rules 8.1105 and 8.1120 of the California Rules of Court, the City of San Diego (City) requests publication of the Court?s opinion in Creed-2] v. City of Wildcats? (Wal- Marzji (Case No. ?led November 28, 2017 (Opinion); The Opinion merits publication for three reasons: 1. The Court?s Opinion addresses a topic for which there is little case authority, the trial court?s discretion to order issue and terminating sanctions for discovery abuses. As such, Creed-21 ?applies an existing rule of law to a set of facts signi?cantly different from those stated in published opinions,? and is? ?a legal issue of continuing legal importance.? California Rules of Court, rules 8.1105(c) (2) and 8. 1105(c) (6). 2. The Court?s Opinion addresses discovery related to standing in an administrative proceeding where, typically, there is express provision allowing discovery? and for which post-hearing discovery is ?limited.? Pomona Vaiiey Hospital Medicai Center v. Superior Court (1997) 55 Ca1.App.4th 93, 102, citations omitted. To date, the Supreme Court has discussed leeway for discovery for this limited purpose, but has left the issue unresolved. Western States Petroleum Assn. Superior Court (1995) 9 Cai.4th 559, 575, 5. Therefore, Creed-21 provides guidance regarding the appropriate scope of discovery and the trial court?s authority to issue terminating sanctions for discovery abuse Where appropriate in an administrative proceeding.1 1 Creed?21 sought a writ of mandate from this Court on this very topic (Slip Op, p. 9), suggesting ?irther guidance here would be bene?cial. . oml uoisIAIq ?Ieoddv Jo unog tomsilq qiinog Aq peareoog Honorable Presiding Justice . December 18, 2017 and Associate Justices Page 2 California Court of Appeal Fourth District, Division Two 3. Creed-2i ?s analysis of the ?willfulness? requirement for terminating sanctions (Slip. Op., pp. 17?20) similarly merits publication because it clari?es . . . an existing rule of law? of ?continuing legal importance.? Cal. Rules Court, rules 8.1105(c) (3), 8.1105(0) (6). Creed?2] also discusses the ?bad faith? conduct necessary to impose terminating sanctions, modernizing guidance post-Civil Discovery Act. Slip. Op., p. 20. Liam . As the Opinion notes (Slip Op. at p. 11), the Briggs Law Corporation, counsel for Creed- 21, has consistently ?led over a hundred lawsuits across California using shell corporations to challenge government actions, from CEQA approvals, as in Creed?21 to municipal ?nance matters. These types of lawsuits have been a vexing concern for the City for years. Recently, in the case of Son Diegansfor Open Government 12. City ofSan Diego, San Diego Superior Court case number 37-2012?00088065 (SDOG TMD), SDOG challenged the renewal of the City?s Tourism Marking District (TMD) assessments?a critical funding mechanism utilized to market the City as a tourist destination. The SDOG. TMD case drug on for five years, plagued with discovery abuses, never reaching the merits, and ending with entry of judgment in favor of the City and real party in interest, San Diego Tourism Marketing District Corporation (TMD Cerp) due to lack of standing. Similar to What occurred in Creed in the SDOG MD'case the City and TMD Corp sought discovery to establish whether the SDOG association had any member who had paid, or was obligated to pay, the City?s TMD assessmentma requirement for associational standing to pursue the lawsuit. Torres v. City onorbe Linda (1993) 13 Cal.App.4th 1035, 1043?- 1044;1aiand Oversight Committee v. City of Ontario (2015) 240 Ca1.App.4th 1140, 1145, fn. 4 [voters and residents who did not directly pay similar tourism assessment lack standing to challenge it], see Jacks v. City ofSonici Barbara (2017) 3 Cal. 5th 248, 271 [?Valid fees do not become taxes simply because their cost is passed on to the The Briggs Law Corporation consistently blocked any attempt by the City, or the TMD Corp, to discovery the infonnation. As in Creed 2] SDOG insisted that Richard LaWrence and Karin Langwasser, Mr. Briggs? cousin, were the only real SDOG board members capable of responding to discovery. Slip Op, p. 11. When the trial court ultimately awarded monetary sanctions for discovery abuses, SDOG claimed an inability to pay. Creed?21?s explanations for its claimed inability to reSpond to Wal-Mart?s discovery requests are remarkably similar to those encountered in the SDOG TMD case. In Creed-2], the attorney for Creed 21, Mr. Briggs, resisted a deposition claiming a family emergency, and the need to care for a family member for weeks (Slip Op, pp. 8, 9, 10) and only consented to the - deposition the day before Wal-Mart?s trial brief was due-wan act obviously calculated to avoid the deposition (id. at p. 13-14). In the SDOG TMD case, the real party in interest, TMD Corp, moved for terminating sanctions for failure to provide a member list which SDOG claimed proved its standing. In opposition to TMD Corp?s motion, attemey, Mr. Briggs, claimed a paralegal was unable to serve the revised discovery responses for a variety of reasons, including (1) because her grandmother had to undergo emergency surgery; (2) because Mr. Honorable Presiding Justice December 18, 2017 and Associate Justices Page 3 California Court of Appeal Fourth District, Division Two Briggs? associate? aunt passed away, and (3) because Mr. Briggs? parentS? house exploded, caught ?re, and was rendered uninhabitable all simultaneously. See Request for Judicial Notice '?led with TMD Corp? Request for Publication.2 More recently in San Diegausfor Open Government v. Public Facilities Financing Authority ofrhe City ofSun Diego et a2, San Diego Superior Court Case number 37?2017- 00004058 CU-MC-CTL SDOG Pubiic Finance), a similar tactic was utilized to delay a hearing on the City?s Motion to Compel Discovery Responses. This time, attorney, Mr. Briggs claimed a need for abdominal surgery requiring a substantial delay in the resolution of the case. Although the surgery appeared to be pre?planned, the City was not noti?ed of the surgery until a day before the specially set discovery motion hearing date. The end result was a critical delay in the City?s ability to secure needed bond funding for the City project and substantial construction delay costs mall of which threatened the Viability of the project itself. 3 Therefore, for all of the reasons stated above, the City respectfully submits publication of the Creed 2] opinion will assist with a persistent and repetitive issue of legal importance to the City and through the State, as well as to clarify an existing rule of law. Sincerely yours, MARA W. ELLIOTT, City Attorney Carmen A. Brook Deputy City Attorney Enclosure: Motion for Judicial Notice Proof of Service 2 TMD Corp also has ?led a Request for Publication which is accompanied by a motion for judicial notice of select pleadings 1n the SDOG TMD case The City Joins the TMD Corp 3 motion in full. 3 The City accompanies the City?s Request for Publication with a motion for judicial notice of a select pleadings in the SDOG Public Finance case, not to establish the truth of the matters asserted, but for the mere fact that SDOG and Mr. Briggs made them.