Blogging Bayport Alameda

April 19, 2018

Oops, I (allegedly) did it again

Filed under: Alameda — Lauren Do @ 6:09 am

Also from Steven Tavares for the East Bay Express:

According to two knowledgeable sources, Keimach also secretly recorded a conversation with another city official in an unrelated matter. In addition, at least two other people now say that they believe Keimach illegally recorded them as well: Assemblymember Rob Bonta, D-Alameda, and Jeff Del Bono, head of the Alameda firefighters’ union.

In an interview, Assemblymember Bonta said he also suspects Keimach recorded him during a phone conversation sometime last September to discuss his support for Weaver. “When the conversation was over I thought, ‘Did she just record me?'” Bonta said. Keimach seemed awkwardly guarded during the conversation and often asked him to repeat his comments like “she was trying to capture something,” he said. “I’ve taken depositions before, so I know you try to get a clean answer so you can use it in court without ambiguity.”

Sources told the Express that a second, but apparently unrelated conversation involving Keimach and a city department head, is also on the recording handed over to the independent investigator. “I’m not sure it ends where she’s admitted. There could be others. There’s an employee. There’s two others. There might be four? Who knows how many? There’s a pattern and practice of her doing this to people,” said Bonta. “I want accountability and vindication of my rights.”

Del Bono, president of Alameda Firefighters Local 689, also believes Keimach secretly recorded him around the same time as Bonta last September. Del Bono, who also clashed with Keimach over the fire chief selection process, said that during a chat over coffee, Keimach continually repeated his comments back to him as if to make them clear for a recording.

Del Bono said that a day earlier, he ripped Keimach over the phone after disagreeing with her pick for interim fire chief. “Why does this lady, who I just told was the most dishonest person I’ve ever worked with, want to talk to me so badly?” he said. “When I got home I told my wife, ‘I think she recorded me.'”

And naturally, Jill Keimach’s attorneys have denied the other recording:

Cannata strongly denied that Keimach recorded another city employee or anyone else. “She made only one recording. It happened once in her many, many years’ career. The rumor mill about Mr. Bonta or this manager — I don’t know who is putting it out — but it’s patently false. It’s not true. It didn’t happen,” said Cannata.

More on the recording front, according to a comment by Mike McMahon posted by Malia Vella on Facebook:

The supporters of the city manager were all members of CA Apartment Association, connected contributors with the Alamedans in Charge PAC, or landlord friends of Don Lindsey. It’s the same anti-rent control/no Just Cause crowd. Demanding Jill be reinstated, I apologize and recuse myself, accusing me of corruption and demanding that I be ethical. And apparently, it wasn’t enough to invade my privacy, Jill is now playing clips of the secret recording to her supporters.

If true, not a good look for Jill Keimach considering that the legality of the recording is still at question and there was a lot of comments about doing what is “ethical” even if something is not illegal.  I’m going to say that playing clips of a recording made without the consent of the other party definitely falls into the “unethical” category.

26 Comments

  1. What about the NSA? They are recording Bonta when he tries to strongarm the city manager, too.

    This reminds me of the burglar who falls through the roof when trying to get in, and then sues the homeowner.

    Comment by Nowyouknow — April 19, 2018 @ 6:34 am

    • Up early to read Infowars, I’m guessing.

      Comment by BC — April 19, 2018 @ 9:42 am

  2. What is it about two-party consent do you not understand?

    I guess we’ll know more on May 2 if the alleged employee conversation was recorded and if folks will excuse that as excluded because of extortion, bribery, or both.

    Comment by Lauren Do — April 19, 2018 @ 6:57 am

    • Why some recordings are necessary; “A South Fayette High School sophomore claims to have been bullied all year at his new school located in McDonald, Pennsylvania. In February, the student made an audio recording of one bullying incident during his special education math class. Instead of questioning the students whose voices were recorded, school administrators threatened to charge him with felony wiretapping before eventually agreeing to reduce the charge to disorderly conduct. On Wednesday, March 19, the student, whose name we have agreed to not include in this story, was found guilty of disorderly conduct by District Judge Maureen McGraw-Desmet….

      The student and his mother, Shea Love, testified before the magistrate that the boy has been repeatedly shoved and tripped at school, and that a fellow student had even attempted to burn him with a cigarette lighter.”

      I guess those of you with an unqualified condemnation of surreptitious recording are in favor of bullying and sexual harassment. Because there is literally no other way to prove such unwitnessed bad behavior.

      Comment by vigi — April 19, 2018 @ 11:03 am

      • Oh, sorry..Just another lame analogy, I’m afraid.

        Comment by vigi — April 19, 2018 @ 11:05 am

        • Absolutely it is. Glad you recognized that before it needed to be pointed out.

          Comment by Lauren Do — April 19, 2018 @ 11:06 am

        • Goes without saying that you could never appreciate Tamarian. Darmok and Jalad when the walls fell.

          Comment by vigi — April 19, 2018 @ 11:39 am

        • Have you ever made an analogy that wasn’t lame?

          Comment by Rod — April 19, 2018 @ 12:09 pm

        • God damn it vigi, it is “Darmok and Jalad AT TANAGRA.” It is “Shaka, when the walls fell.” Get is straight.

          Comment by BMac — April 20, 2018 @ 12:28 pm

      • yeah, well Temba his arms wide.. Too bad our Blogmistress is totally incapable of communicating by analogy, simile, or metaphor. Almost like Vulcans who are incapable of emotions.

        Comment by vigi — April 22, 2018 @ 3:40 pm

  3. They could all be wrong and at fault, I suppose. Illegal recording and violating the city charter. Lawyers and voters will have to sort it out in the end.

    Comment by Spanky McDoogle (@SpankyMcDoogle) — April 19, 2018 @ 8:42 am

  4. Seens to me there is blame on all sides. The difference is no one is surprised by Malia and Jim’s behavior, just business as usual. But Jill’s actions are shocking and some people just can’t believe it (we’ll see what the DA believes). Seems Jill fooled everyone. In the category of Master Manipulator the Oscar goes to ….

    Comment by Eyeroll — April 19, 2018 @ 8:45 am

  5. A reasonable attorney should advise Keimach to resign and should record her answer.

    Comment by Jack — April 19, 2018 @ 8:49 am

  6. Videotaping and recording in public in California: the basics

    The ins and outs of the law could (and does) fill up manuals, but here are some basics and rules of thumb:

    You have the right to record video of police or public officials engaged in the performance of their official duties if those activities are visible from public places.

    What’s a public place? Anywhere that any member of the public can legally access. This includes public transit facilities and parks.

    Comment by Jack — April 19, 2018 @ 9:01 am

  7. whoops, I did it again.

    The Council voted to refer the matter of at least one of the recordings (it’s starting to sound like we’ll need more fingers to count them all) to the District Attorney on Monday. Unclear, however, is when the Council first became aware of any recordings. The story above suggests that Rob Bonta, and Local 689 suspected recordings back in September. Additionally, according to Ms. Keimach’s attorneys and perhaps the City Attorney as well, the City Attorney – whether or not she somehow approved the recording – was at least aware of a recording. The outside investigator/attorney was also reportedly aware of a recording early in his process (initiated in October) – though, for some reason, he was reportedly initially reluctant to take possession of the recording and/or to listen to it. In any event, the investigative report was supposedly finalized in January. The report presumably addresses the question of the recording(s) and an assessment of whether the Penal Code was violated in its creation. This raises an interesting question of timing: assuming the City Council has known of the existence of a recording(s) for some time, why was it not until Monday that they voted to refer the matter of recording(s) to the DA? In addition, if the reasons for Keimach’s suspension and the DA referral are related, why the month-long gap between those two events?

    All of that is only to suggest normal, garden variety conspiracies – not necessarily of the criminal type – but perhaps also merely the sound of things when settlement discussions hit a rough patch. There has been mention of “mediation” and the Chronicle reported last week that the City and Keimach had been working on an exit agreement. If true, it would be interesting to know how, if at all, the breakdown in settlement negotiations is related to the breaking in the press of stories concerning the recording. It is plausible to imagine that non-disclosure of the recording was in the mix of proposed settlement terms (if the exit negotiations proceeded that far).

    Comment by MP — April 19, 2018 @ 11:15 am

  8. I’ll say it again, an experienced city manager with supposedly 30 years in public service should have stopped the conversation before it ever got started. No need to record anything simply inform the elected official that you cannot have this conversation period. refer them to the city attorney.

    Comment by JohnP.TrumpisnotmyPresident. — April 19, 2018 @ 4:40 pm

  9. just to be clear, that is what should happen in that case, we still don’t know if there was anything that needed to be stopped.

    Comment by JohnP.TrumpisnotmyPresident. — April 19, 2018 @ 4:48 pm

  10. While I wait for May 2 so that iI ca get some facts, I am here to compliment vigi on her solid use of a TNG reference. One of the best episodes, an example of what can happen when we all choose to listen, to put our confirmation bias on hold, and to solve a problem. In that episode, sadly, someone died before the problem was solved. I’m sure that’s a metaphor for something. Anyway, good job. Now let’s get back to Earth and reality.

    Comment by Gaylon — April 20, 2018 @ 11:49 am

  11. It’s all just a ploy by the CM to extract money out of Alameda for an large exit payout.

    Comment by JayN — April 20, 2018 @ 5:08 pm

  12. While the Council as a whole can make decisions about the report and what to disclose out of its closed sessions, in practical terms, the Councilmembers who were recorded, alone, hold some important keys to the recording. There may be a status quo or non-disclosure agreement currently in place covering the recording for now. If not, the risk of litigation from a Councilmember (or perhaps a third person) over the recording, would likely have the same effect. (According to the East Bay Express, in fact, Assemblyman Bonta has threatened litigation concerning a recording that he suspects was made of a phone call he made to Keimach). It is in that sense that the Councilmembers hold the keys to the recording. Were they to call for its release, the most obvious risks would dissipate.

    If the recording stays under wraps – by agreement or operation of risk aversion – until a court can determine finally the applicability of PC 632 & 633.5, that could be quite a long time. And it may be forever if Ms. Keimach sees it in her personal interest to trade non-disclosure of the recording for consideration – either from the recorded Councilmembers or the City (i.e. a majority of the Council). Resistance to disclosure, however, is not the only approach.

    The Councilmembers may come out of this looking better in the long run if they publicly call for release of the recording. At a minimum, one hopes that the Councilmembers have enough trust in Alameda voters not to fear release of the recording because it may contain a slip of the tongue or two. Most people are forgiving of that type of thing and slips of the tongue are not always as harmful as feared. Sometimes just the opposite! Voters may greatly appreciate the way in which the Councilmembers handled themselves with a City Manager that some have deeply criticized.

    The recent East Bay Express story quoting others (Assemblyman Bonta, Local 689) who suspect Keimach of other recordings makes her look like a real recording fiend (almost anthropological in scope, perhaps destined for the field recording section at the Smithsonian). Maybe that is true (and it would seem that the public’s interest in those other alleged recordings is not quite the same). However, were the Councilmembers to call for release of the recording in question that would hardly create an incentive for others to go down Keimach’s path. Deserved or not, her current position, including having the matter referred to the D.A., hardly seems enviable.

    There may be third parties whose rights are implicated by the recording, which would weigh against calling for its release. But, so far, no such claim has been made.

    Keimach may also have violated the trust of the Councilmembers (to the extent any remained between them) by making the recording. One can certainly understand their anger in having been recorded without their knowledge. Imagine whether you would want to work somewhere where the record button is on. Furthermore, they may have been more circumspect in their comments to Keimach had the conversation occurred in New York, Oregon, Hawaii, New Jersey, Minnesota, the District of Columbia or the 29 other states in which one-party consent is the rule. Instead, they may have been relying to some extent on the fact that the conversation occurred in California where – as in Florida, Nevada, Illinois and 8 other states – two-party consent is the rule.

    One could say that the difference between the rule in California or Florida, on the one hand, and New York, Minnesota and D.C., on the other, creates not just a tactical consideration for speakers, but also represents a very profound difference in the level of respect for rights to privacy. That is debatable, however, especially as applied to a conversation between government officials about the public’s business. And it would almost surely go too far to say that the Councilmembers would put every Alameda resident’s right to privacy at risk if they themselves called for release of the recording. Encouraging them to voluntarily approve release of such a recording would also seem not to pose any undue risk to the right to privacy. The analogy is not a perfect one, but Donald Trump was properly criticized for refusing to release his private tax returns. His success in resisting that call is a dubious model.

    The Councilmembers may rightly view this as a personal injustice, a result of malice by Keimach, or just dumb, unfair luck (I’ll assume no faction on the Council plotted, somehow, to convince Keimach to make the recording, but instead that she was feeling cornered to some extent either as a result of fault of her own or the fault of others, or a combination of both). One can hope that those personal factors do not weigh too heavily against deciding to call for release of the recording. Put another way, the public was not at fault – if fault there was – in the creation of the recording and the public has, moreover, a separate and legitimate interest in knowing – and hearing with its own ears – how a very important and controversial piece of its business was conducted by its public officials.

    To take a step back for a moment, the Councilmembers likely have a very substantial defense to Keimach’s claim that they violated the Charter (in any actionable sense) under the First Amendment. The First Amendment protects their expressions of opinion on matters of public interest, just as it protects the speech of any member of the public. For those interested, the case of Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, examines similar questions in the context of a similar city charter.

    Applying the Levy case simplistically here, advocacy for a fire chief candidate would be protected by the First Amendment. Members of the public, including members of Local 689 and its leaders, had every right and a legitimate interest in showing support for a favored candidate for chief. Although the letter of the City Charter would prohibit advocacy by a Councilmember (because it would constitute an “attempt to influence” the City Manager’s selection), Levy would say the First Amendment protects a Councilmember’s advocacy so long as it did not cross a line between advocacy and, say, an order (constructive or express, e.g. “I will vote to fire you unless you choose X to be fire chief”). The Councilmembers were surely aware of how far out the First Amendment extended the boundary and I would guess that, while they may have approached that line, they were careful not to cross it.

    The Levy case and others like it may be a disappointment for an extreme City Manager form of government purist, Alameda Charter textualists, or – assuming the boundary recognized in Levy was not crossed – those who just have it out for certain Councilmembers. But the First Amendment is important too – even more important. The point of Levy, moreover, is not at all to provide complete cover for elected officials. To the contrary, the following excerpt from Levy urges a response that also lies at the core of the First Amendment: “Council members “are entitled to speak as they please on matters vital to them; errors in judgment … may be exposed, of course, but not through punishment for contempt for the expression.” (Wood v. Georgia (1962) 370 U.S. 375, 389.)….There are better ways to discourage improper conduct. “Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech.” (Wood, at p. 389.)”.

    One can hope that a product of this entire mess is full disclosure of the information relevant to exercise of the public’s judgment as envisioned in the Levy case. By that I do not mean resolution of the various legal questions that have arisen which are for courts to decide – voters don’t get to redefine First Amendment boundaries on local ballots (thank goodness). Instead, I mean the public’s judgment with respect to how the city has been, and should be, run. In that respect, the public is uniquely and solely qualified to read closed session reports, interpret sound recordings, etc., without the help of lawyers, judges or other experts.

    It would be ironic if the original legal questions concerning Charter section 7-3 were resolved with an invocation of Councilmembers’ right to free speech on public matters, but the public ended up with less than full disclosure of what that free speech actually was. The same is true with respect to what the Council as a whole chooses to disclose about the entire matter, including its recent closed sessions. To be sure, non-disclosure may be a perfectly legal result in this case. But “counterargument and education” in the upcoming election based on fully disclosed facts would be far, far preferable to “counterargument and education” focused on the who’s, how’s and why’s of facts being suppressed.

    Comment by MP — April 21, 2018 @ 2:22 pm

  13. Why was Bonta involved with this at all? Representing a union local which has its own representatives is not in his job description and doing so runs counter to the interests of the taxpayers and voters, whom he was elected to serve.

    Comment by dave — April 21, 2018 @ 4:22 pm

    • Is that a rhetorical question, dave? Bonta was elected by union money. He made Vella “woman of the year” for his district–were there any other candidates? Oddie is his district director. It would be odd if Bonta WASN’T piling on with his baseless assertions.

      Comment by vigi — April 22, 2018 @ 3:44 pm

  14. In case anyone has a lot of time on their hands…Levy v. City of Santa Monica
    Print This Page Print This Page
    Cite as: 114 Cal.App.4th 1252, 8 Cal.Rptr.3d 507
    David LEVY et al., Plaintiffs and Respondents
    v.
    CITY OF SANTA MONICA et al., Defendants and Appellants
    Tunde GARAI, Real Party in Interest
    California Court of Appeal, Second District, Div. 6
    No. B157587 Jan. 20, 2004
    (Appeal from Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge)
    COUNSEL:
    Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Cara E. Silver, Deputy City Attorney for Defendants and Appellants.
    Bannan, Green, Frank & Terzian and Richard R. Terzian for the Cities of Burbank, Cathedral City, Fresno, Hermosa Beach, Newport Beach, Riverside, Sonoma, Torrance and West Hollywood as Amici Curiae on behalf of Defendants and Appellants.
    Harding, Larmore, Kutcher & Kozal, Christopher M. Harding, Kenneth L. Kutcher; Isaacs, Clouse & Crose, James B. Isaacs, Jr., and John A. Crose, Jr., for Plaintiffs and Respondents.
    No appearance for Real Party in Interest.
    GILBERT, P.J.
    Santa Monica City Charter section 6.10 states, “Except for the purpose of inquiry, the City Council and its members shall deal with the administrative service under the City Manager solely through the City Manager and neither the City Council nor any member shall give orders to any subordinates of the City Manager, either publicly or privately.”
    Here we conclude, among other things, that a city council member did not violate section 6.10 by speaking with city planning department employees on behalf of a constituent to inquire about a structure built on a neighbor’s property. An injunction to prevent such communication violates the First Amendment. The First Amendment protects everyone, even politicians. (See Beilenson v. Superior Court (1996) 44 Cal.App.4th 944.)
    The city of Santa Monica and council member member Ken Genser (collectively “City”) appeal an order denying their “SLAPP” (Strategic Lawsuit Against Public Participation) motion to strike the lawsuit filed against them by David and Beth Levy (the Levys). (Code Civ. Proc., § 425.16.) We reverse because City’s activity is protected under SLAPP and the Levys did not demonstrate a probability of prevailing on any of their causes of action.
    FACTS
    The Levys spent $11,000 to build a large elevated backyard playhouse for their four-year-old son. City building inspector Mike Gruett advised the Levys that their neighbor Tunde Garai had complained about the playhouse. Gruett told them they had to remodel it to meet city building standards and “relocate[ ][it] so that it was at least five feet from the rear lot line.” The Levys spent $2,000 to modify the structure to comply with the City’s specifications. The completed structure was 13 feet high. It was located near a tree and supported by wooden posts which extended approximately seven feet from the ground. Robert Flowers, a City inspector, checked it and told the Levys that it “was in full compliance with … City regulations.”
    Garai complained to the City’s building and safety department about the playhouse. She also complained to Genser who was both her City council representative and the mayor.
    On March 15, 2000, Genser sent an e-mail on behalf of Garai to Suzanne Frick, the City’s director of planning and community development, that said, “[C]ould you look into this? Is this structure being built without permits? And could it be built with a permit? Please feel free to contact [Garai] directly.”
    On April 2, 2000, Genser sent another e-mail to Frick to find out “the status of the complaint [he] forwarded” to her. He said, “I just did a ‘quick’ review of the code. I can’t say that I am necessarily accurate … but: Mike’s letter said a 5-ft. rear setback was required. I think the code requires the same rear setback as the rear yard — generally 15 feet (?) [¶] … [¶] I wonder if the space under the first floor should be considered a story. (I haven’t found a citation to support this — yet.)”
    Frick “did not consider these e-mails to be orders.” She treated them as “citizen complaints” and referred them to the zoning administrator. Genser simultaneously e-mailed copies to Susan McCarthy, the City Manager, who did not consider the e-mails to be orders to City staff.
    On August 4, 2000, Gruett sent the Levys a “Notice of Violation” which “directed [them] to remove” or modify the playhouse because it was an “unapproved structure[.]” The notice said the playhouse was a two-story structure that had to be “15 feet from the property line[.]” This notice did not mention appeal rights.
    Prior to filing their lawsuit, the Levys’ attorney, Christopher Harding, had a discussion with Marsha Moutrie, the City Attorney, who told him “that City staff did not intend to take any enforcement action of any kind against the Levys prior to discussing their claim with the City Council….” She said, “I would recommend to the City Council that the City forego enforcement based on the equities of the case, and that I anticipated the City Council would follow my recommendation.” She said, “it would not be necessary to file a lawsuit, that the City would carefully review the matter, and that the dispute could be informally resolved.”
    The Levys did not wait for the City council meeting and filed a complaint for injunctive, declaratory relief and damages against the City and Genser. They included Garai as a “Real Party in Interest.” Later they filed an amended complaint alleging that the City “confirmed in writing that the Levys may keep their son’s playhouse but asserted that it constitutes a legal non-conforming structure [.]” (Italics added.) Their first cause of action sought a declaratory judgment that the playhouse was a “conforming structure.”
    The second cause of action sought a permanent injunction and a declaratory judgment that the City council members “are precluded by Section 6.10 [of the City Charter] from engaging in acts designed to influence City administrative staff through direct communication with City staff (other than the City Manager), with respect to zoning enforcement matters such as the Levy playhouse matter.” (Italics added.)
    The third cause of action sought damages under the federal civil rights statute (42 U.S.C. § 1983) for the violation of the Levys’ “due process right to a hearing … before being required to modify or remove their son’s playhouse.”
    The City moved to strike the complaint under the SLAPP statute and contended the first and third causes of action were moot because the City rescinded the notice of violation.
    The Levys opposed the motion with several declarations. A declaration by attorney Christopher Harding stated the City “continues to maintain … that the Levy playhouse is a non-conforming structure[.]” Another declaration by Gruett said the notice of violation should have advised the Levys about their appeal rights. But his supervisor Timothy McCormick, the City’s chief building officer, told him the notices did not contain such advisements because “the City did not want to encourage appeals by giving people notice of their rights.” Gruett said that the playhouse “conformed to the Zoning Ordinance [.]” He and McCormick determined it was “a lawful one-story ancillary structure.” But they were told by the chief City planners to “treat [it] as a two-story structure[.]”
    Robert Sullivan, a real estate broker, said the City’s classification of the playhouse as a “non-conforming” structure has an “adverse effect on the marketability of [the Levys’] home.” Former City council member Paul Rosenstein declared, “I am concerned … that the Levy playhouse matter is not an isolated incident, but rather an example of what has become ‘business as usual’ for one or more members of the Santa Monica City Council.”
    The Court denied the motion. It ruled SLAPP was not applicable, but even if it were, the Levys met their burden to demonstrate a probability of success on all their causes of action.
    DISCUSSION
    I. The Applicability of SLAPP
    The City contends that the Levys’ action arose from Genser’s and Garai’s “constitutionally-protected speech or petitioning activity.” It argues the trial court erred by ruling that SLAPP did not apply. We agree.
    A SLAPP suit is a lawsuit that chills “a party’s constitutional right of petition or free speech.” (State Farm General Insurance Company v. Majorino (2002) 99 Cal.App.4th 974, 975.) The SLAPP statute permits the defendant to file a motion to strike a cause of action that interferes with those rights. (Code Civ. Proc., § 425.16.) To prevail, the defendant must show “that the plaintiff’s claims arise from an act of the defendant in furtherance of the defendant’s right of petition or free speech.” (State Farm General Insurance Company, at p. 977.) Such acts include any written or oral statement made before a legislative, executive or judicial body, or “any other official proceeding authorized by law.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Code Civ. Proc., § 425.16, subd. (e).) Courts must construe these provisions broadly. (Navellier, at p. 92.)
    If an action falls within SLAPP, the court “must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) To do this, he or she must show “‘that the complaint is both legally sufficient and supported by … facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”‘ (Id. at pp. 88-89.) The trial court may not weigh the evidence in deciding whether the plaintiff meets the burden, and we review the record de novo. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; Lafayette Morehouse Inc. v. Chronical Publishing Co. (1995) 37 Cal.App.4th 855, 867.)
    Here the City met its burden to show that the Levys’ action arose from Genser’s and Garai’s constitutionally protected speech. The complaint alleges that Garai complained to Genser about the playhouse that had been approved by City building officials. Genser contacted the City’s planning staff on her behalf because of Garai’s disagreement with the City’s action. The Levys incorporated these allegations into each cause of action and sued Garai and Genser.
    Garai’s act of contacting her representative and Genser’s act of contacting planning staff are petitions for grievances against the government protected by the First Amendment. (Bradbury v. Superior Court (1997) 49 Cal.App.4th 1108, 1116; American Civil Liberties Union of Southern California v. Board of Education (1961) 55 Cal.2d 167, 178; Nelson v. City of Selma (9th Cir.1989) 881 F.2d 836, 839.) The court erred by ruling that SLAPP did not apply. The Levys did not meet their burden of demonstrating probable success on their causes of action. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.)
    The first cause of action seeks a declaratory judgment that the playhouse “conforms with the Zoning Ordinance[.]” “‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.”‘ (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) A plaintiff may seek declaratory relief to resolve a dispute about the impact of a zoning ordinance. (Alameda Co. Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1723; Toso v. City of Santa Barbara (1980) 101 Cal.App.3d 934, 948.)
    The City contends the issue is moot and there is no actual controversy. We agree. The City Attorney informed the Levys that “the City has rescinded the Notices of Violation for the playhouse…. The rescission is unequivocal. The City has no intention of reissuing notices.” Because of this there is no “actual, present controversy” which requires resolution by the court. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.) This element was necessary to prove a cause of action for declaratory relief. Moreover, real estate broker Sullivan’s conclusory declaration on the home’s marketability was inadequate to show damages. The Levys did not meet their burden to show a probability of success on the merits.
    II. The Federal Civil Rights Cause of Action
    The City contends the trial court erred because the Levys did not meet their burden to show a probability of prevailing on the federal civil rights cause of action (“1983 claim”). (42 U.S.C. § 1983.) We agree.
    A plaintiff may state a 1983 claim by alleging “facts showing a deprivation of a right” protected by federal law. (Green v. Obledo (1984) 161 Cal.App.3d 678, 682.) Local governments may be sued under 42 United States Code section 1983 where their official policies or practices violate procedural due process rights. (Carey v. Piphus (1978) 435 U.S. 247, 266.)
    The City argues that this cause of action is moot because it rescinded the notice of violation. As the City notes, it “revamped its procedure for issuing orders and provided an extensive appeal and hearing process.” The Levys did not show that the City has threatened to remove the playhouse in the future or that it would do so without proper notice. They did not produce sufficient evidence to show that they suffered damages. Real estate broker Sullivan’s declaration fares no better in this cause of action. Nor did they show that the City had an official policy that deprived homeowners of due process notice. Even if Gruett and McCormick did not provide them proper notice of appeal rights, that by itself is insufficient to impose liability on the City. “Local governments have no liability under 42 United States Code section 1983 simply because their employees may have violated a plaintiff’s constitutional rights; the doctrine of respondent superior does not apply. [Citation.]” (Choate v. County of Orange (2001) 86 Cal.App.4th 312, 328.) The Levys are not entitled to “an abstract trial on the constitutionality” of the past actions of some City employees that cause no damage. (Id. at pp. 329-331.) The Levys did not meet their burden.
    III. Injunctive and Declaratory Relief Against the City Council
    The City contends that the court erred by ruling that the Levys met their burden to show they would prevail on their second cause of action to enforce City Charter Section 6.10 (Section 6.10) by declaratory and injunctive relief. We agree.
    The Levys seek a permanent injunction and a declaratory judgment that “the City Council and its individual members are precluded by Section 6.10 from engaging in acts designed to influence City administrative staff through direct communication with City staff (other than the City Manager), with respect to zoning enforcement matters such as the Levy playhouse matter.” (Italics added.) They also allege they “are entitled to issuance of a permanent injunction prohibiting members of the City Council [and their staffs] from violating Section [6.10.]” They state the injunction is necessary “to allow city administrative personnel to carry out their administrative duties free from direct pressure or influence by ” City council members. (Italics added.)
    The Levys contend the purpose of Section 6.10 is to prevent City council members from interfering with administrative staff. They claim they should make complaints on behalf of constituents directly through the City manager. But Section 6.10 allows direct contact “for the purpose of inquiry.” That is what Genser did. He made an inquiry on behalf of Garai.
    The Levys contend Genser violated Section 6.10 by what he said to City staff. But this section prohibits “orders to any subordinates .” The Levys did not show that Genser gave orders. Genser’s declaration states he “never instructed or ordered” any City staff “to take any specific enforcement action[.]” Frick said she did not consider the e-mails to be orders.
    The Levys contend Genser violated Section 6.10 by “advocating” on behalf of Garai. “Government officials are frequently called upon to be ombudsmen for their constituents. In this capacity, they intercede, lobby, and generate publicity to advance their constituents’ goals….” (Manistee Town Center v. City of Glendale (9th Cir.2000) 227 F.3d 1090, 1093.) “This kind of petitioning may be nearly as vital to the functioning of a modern representative democracy as petitioning that originates with private citizens.” (Ibid.)
    Under the First Amendment, legislators are “given the widest latitude to express their views” and there are no “stricter ‘free speech’ standards on [them] than on the general public.” (Eller Outdoor Advertising Co. v. Board of Supervisors (1979) 89 Cal.App.3d 76, 80.) Laws that restrict that freedom must be narrowly construed. (Ibid.) City officials have First Amendment protection when they respond to inquiries from the public about the city’s actions on construction projects. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 376-377.)
    The Levys seek to enjoin council members from advocating their constituents’ positions, applying “direct pressure” or “engaging in acts designed to influence” City administrative staff. But that is an overly broad restraint on speech which would inhibit constitutionally protected activity. (Bond v. Floyd (1966) 385 U.S. 116, 136; Baggett v. Bullitt (1964) 377 U.S. 360, 372; American Civil Liberties Union of Southern California v. Board of Education, supra, 55 Cal.2d at pp. 179-180.)
    It is not easy to distinguish between inquiry and “acts” designed to influence decision. “General words create different and often particular impressions on different minds.” (Thomas v. Collins (1945) 323 U.S. 516, 534.)
    For example, in Thomas, a labor leader was held in contempt for violating a restraining order which prevented him from soliciting people to join a union. The Supreme Court ruled that his conviction violated the First Amendment because the trial court’s order “chilled” free speech. Under the order he could discuss the attributes of the union, but was prohibited from soliciting or inviting the audience to join it. The court noted it would be difficult for the speaker to distinguish between prohibited and protected speech. He would have to anticipate how the audience might interpret his remarks. There was no guarantee that “anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker … wholly at the mercy of the varied understanding of his hearers….” (Thomas v. Collins, supra, 323 U.S. at p. 535.) “Such a distinction offers no security for free discussion.” (Ibid.)
    That is the case here. For some, a council member’s inquiry for a constituent is advocacy simply because it calls attention to the constituent’s position. To the head of a city agency, a council member’s act of faxing citizen complaints about the agency might be considered an “act designed to influence” or “direct pressure.” For the Levys, an inquiry is advocacy where it could change the status quo or influence the result. Under their definition, virtually all inquiries would be suspect. Council members who may make inquiries under Section 6.10 might refrain from doing so because of fear of being sued or held in contempt. For example, council members could be inhibited from calling City agencies about matters crucial to the community such as securing help for families living in substandard housing. “Free speech may not be so inhibited.” (Baggett v. Bullitt, supra, 377 U.S. at p. 372.)
    The purpose of Section 6.10 is to define the lines of authority within city government, not to prohibit protected speech. Interpreting this section to prohibit “orders” to city staff is a bright line consistent with the purpose of Section 6.10 and the First Amendment. Counsel members “are entitled to speak as they please on matters vital to them; errors in judgment … may be exposed, of course, but not through punishment for contempt for the expression.” (Wood v. Georgia (1962) 370 U.S. 375, 389.) “[E]rroneous statements must be protected to give freedom of expression the breathing space it needs to survive.” (Bond v. Floyd, supra, 385 U.S. at p. 136.) There are better ways to discourage improper conduct. “Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech.” (Wood, at p. 389.)
    Moreover, the Levys did not meet their evidentiary burden for injunctive and declaratory relief. Their complaint alleged an ongoing “pattern of intervention” by council members in “City staff’s performance.” But they made these general allegations on information and belief and did not produce admissible evidence to support them. Rosenstein stated, “the Levy playhouse matter is not an isolated incident, but … ‘business as usual’ for one or more [Council] members[.]” But this conclusory statement is insufficient. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.) He did not state facts, name the council members or show his personal knowledge. (Ibid.) Other declarations the Levys filed regarding Genser’s conduct rely on hearsay and speculation.
    The order denying the City’s motion to strike the Levy’s action is reversed. Costs to appellants.
    We concur: YEGAN and COFFEE, JJ.

    Comment by Jack — April 21, 2018 @ 6:13 pm

    • tl;dr

      Comment by Rod — April 24, 2018 @ 6:50 am


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