CC SR 20180306 H - Representation of Campbell as Witness in Green Hills Litigation.srRANCHO PALOS VERDES CITY COUNCIL
AGENDA REPORT
AGENDA DESCRIPTION:
MEETING DATE: 03/06/2018
AGENDA HEADING: Consent Calendar
Report on closed session action taken by the City Council on February 20, 2018, and
ratified regarding representation of former Mayor Brian Campbell in a deposition by
Green Hills in the matter of Sharon Loveys v. City of Rancho Palos Verdes, Case No.
BC629637.
COUNCIL ACTION:
(1) The Council decided by unanimous vote on February 20, 2018, and affirms that
providing a defense for former Mayor Brian Campbell to represent him as he is
deposed by Green Hills in the matter of Sharon Loveys v. City of Rancho Palos
Verdes, Case No. BC629637, between Green Hills and the Vista Verde
homeowners is not in the public interest.
FISCAL IMPACT: N/A
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: David J. Aleshire, City Attorney
REVIEWED BY: Gabriella Yap, Deputy City Manager.
APPROVED BY: Doug Willmore, City Manager f l -j
ATTACHED SUPPORTING DOCUMENTS:
A. January 30, 2018, letter from Brian Campbell to Mayor Brooks, Mayor Pro
Tem Duhovic, and City Attorney re legal representation (page A-1)
B. February 26, 2018, letter from City Attorney to Brian Campbell re
California Public Records Act Status (page B-1)
C. January 31, 2018 Notice of Continuance of Deposition of Brian Campbell
and Demand for Production of Documents (page C-1)
INTRODUCTION
Former Mayor Campbell was recently subpoenaed to a deposition in the ongoing Green
Hills litigation with the Vista Verde homeowners (the "Nuisance Action"). Mr. Campbell
is not a party to the litigation, and is being deposed as a witness only at this time. On
February 5, 2018, Green Hills' counsel, Ellen Berkowitz, forwarded to the City Attorney
Green Hills' Request for Production of Documents ("Document Request"), served on Mr.
Campbell on January 24, 2018, as part of the deposition subpoena. The Document
Request included all communications relating to Green Hills between Mr. Campbell and
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Vista Verde condominium owners and their current and former counsel, Planning
Commissioner Tomblin and any other commissioner, Jeff Lewis, any government entity
other than the City, and any other individual not affiliated with the City.
The Document Request mirrors some long-standing requests for public records that
Green Hills made of the City and Mr. Campbell, initially on May 20, 2016, and renewed
on December 4, 2017, for all communications to and from Mr. Campbell, and between
Mr. Campbell and Commissioner Tomblin, that reference Green Hills. Although the City
complied with Green Hills' CPRA requests, in part, it was not able to get from Mr.
Campbell records from his personal server. Although Green Hills could initiate action
against the City for its noncompliance, it has not done so at this time and the current
subpoena is a separate matter pursuant to the Nuisance Action.
The City Attorney made repeated attempts, both in 2016 and since December 2017,
when the City received Green Hills' renewed CPRA request, to obtain compliance.
Specifically to the December 4, 2017, request, the City Attorney communicated with Mr.
Campbell by email several times, including on December 20, 2017, when the City
Attorney asked for an unambiguous response within 3 days regarding when
Mr. Campbell would produce the emails, and then again on January 2, 2018, and by
letter on December 18, 2017, and January 25, 2018. The City Attorney most recently
reached out to Mr. Campbell by email on February 9, 2018, following the first closed
session on this issue, again reiterating Mr. Campbell's obligations pursuant to the
CPRA.
On January 30, 2018, Mr. Campbell made a written request to be represented by the
City at the deposition. The City Council discussed the matter in closed session on
February 6, 2018, and then February 20, 2018.
The City Council is committed to full transparency in government. On that basis, and
partly as a result of Mr. Campbell's refusal to cooperate with the Green Hills CPRA
requests, as well as his failure to respond to earlier CPRA requests by other parties, the
City Council adopted new and more specific policies to minimize the possibility that
future councilmembers and city officials will circumvent the open government laws. To
wit, the City Council recently adopted a policy that prohibits councilmembers and city
officials from using non -City email accounts for City business so as to ensure the City's
ability to respond to CPRA and discovery requests independent of the individual
practices of the particular city official. The new policy specifies that noncompliance with
the policy is outside the scope of duties, and the City will not provide a defense for any
city official who violates the policy.
However, while Mr. Campbell was on the City Council, the City had in place Policy
No. 46, which required that councilmembers preserve all emails sent solely to or from
private email accounts if responsive to a CPRA request. After Policy No. 46 was
adopted, the Supreme Court decided City of San Jose v. Superior Court (2017) 2 Cal.5t"
608, and held that emails relating to city business that are on personal email accounts
are public records subject to the CPRA, therefore such emails must now be disclosed if
they are responsive and not exempt.
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LEGAL BACKGROUND
On February 20, 2018, after discussing the legal background of Mr. Campbell's request
that the City provide legal representation for Mr. Campbell, the City Council
unanimously declined and the action was reported out. The basis of that action is
discussed below.
Where a lawsuit is filed against an official or former official, Section 995 of the
Government Code obligates the City to provide defense to that official (including
councilmembers and former councilmembers) in a civil proceeding against him or her
that arises from acts or omissions taken within the scope of his or her employment. The
City can refuse to defend under certain circumstances.
However, Mr. Campbell is not currently a named defendant in the lawsuit. Government
Code Section 995.9 gives the City discretion whether or not to represent Mr. Campbell
at his deposition if he is testifying on behalf of the City regarding actions the City
requested of him. Based on the matters requested in the deposition subpoena, the
City's decision to defend and indemnify Mr. Campbell must rest on the City Council's
"sound discretion" that (i) the action being brought against the witness is based directly
upon the conduct which the public entity requested of the witness, and (ii) such
representation is in the public interest.
Assuming that Mr. Campbell would be testifying about conduct that the City requested
of him, which is not at all certain, so long as he is not a party in the litigation the City is
within its discretion to decide whether providing a defense serves the public interest.
Our office recommended if the City Council decides to provide a defense, that conflict
counsel be used, as we believe potential conflicts exist. In joint representation, the
attorney-client privilege is waived as between the joint clients, and the City's interests
may become adverse to Mr. Campbell if he is brought into the litigation or if other
adversarial matters arise between the City and Mr. Campbell.
Based on the above, the City Council determined that providing a legal representation
for Mr. Campbell at this time would not only not serve the public interest in the
deposition, but rather would reward Mr. Campbell's conduct in violation of the CPRA
and the City's policies, not just with the Green Hills CPRA requests, but also from
Mr. Huang and others. This is based upon Mr. Campbell's nonresponses to the Green
Hills public records requests, specifically the May 20, 2016, and December 4, 2017,
Green Hills requests, the City Council found it possible that the Document Request and
deposition would not have been necessary had Mr. Campbell complied earlier.
Also, the City Council determined that the City Attorney should not represent
Mr. Campbell. Mr. Campbell has been so informed and we believe has selected Jeff
Lewis to represent him. The City Attorney's office will represent the City at the
deposition to prevent disclosure of confidential information.
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RANCHO PALOS VERDES, CA
Brian Campbell
Mayor (Ret.)
January 30, 2018
City of Rancho Palos Verdes,
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
Mayor Brooks, Mayor Pro Tem Duhovic and City Attorney Aleshire
I am in receipt of a deposition subpoena directed to me in connection with the litigation between Green
Hills and the Lomita residents. I am formally requesting that the City advise and if necessary defend and
indemnify me in this matter.
I received the City Attorney's e-mail of January 26, 2018 suggesting that I have not cooperated with the
City. That e-mail is inaccurate and misleading as are many others he has sent. I have always attempted
to cooperate with the City and the City Attorney and the city attorney's records will prove that.
Should the City not provide me with legal advice and if necessary indemnity and defense in this matter,
based on an alleged violation of a newly enacted rule of procedure, I will take the steps necessary to
retain counsel of my own and seek reimbursement from the City.
Please be advised that the City Attorney is in a better position to protect City communications involving
privileges and deliberations in the documentation requested and likely testimony for this deposition. My
own privately retained attorney may not be able to adequately protect the City and I will not be
responsible in that regard nor for the additional legal expenses incurred if the City refuses to cooperate in
this matter.
I look forward to hearing back from you within 48 hours in order to ensure that my rights and the City's
rights are not prejudiced by any delay in my obtaining counsel.
Best regards,
904 Silver Spur Road #282
Rolling Hills Estates, CA 90274
A-1
A.LESHIRE @
WYNDER LLi,
ATT 0 R N E, Y 5 Al L. A W
ORANGE COUNTY ( I_0S ANGHE ] i RIVERSOF I CENTRAL VAI.A.F Y
February 26, 2018
VIA U.S. MAIL AND ELECTRONIC MAIL
Brian Campbell
29418 Quailwood Drive
Rancho Palos Verdes, CA 90275
E -Mail: campbell.rpv@gmail.com
Re: California Public Records Act Status
Dear Brian:
David J. Aleshire 18881 Von Karman Avenue,
daleshire@awattorneys.com Suite 1700
(949) 250-5409 Irvine, CA 92612
P (949) 223-1170
F (949) 223-1180
AWATTORNEYS.COM
This is a follow up to my email of February 21, 2018, concerning your request of January
30, 2018, for legal representation in connection with the subpoena dated January 31, 2018, in the
Loveys vs. Green Hills matter.
On February 20, 2018, in closed session, the City discussed whether to represent you in
the Green Hills deposition in the Loveys matter, in accordance with your January 30, 2018
request, and whether the deposition would go forward if you provided the requested records.
From my conversation with Attorney Ellen Berkowitz, it seems they will go forward with the
deposition. The Council decided unanimously that they decline to have the City Attorney
represent you or pay for your legal representation, largely because they believe it is contrary to
the public interest to defend a councilmember who has been uncooperative in providing public
records.
Nevertheless, the Council would like the City Attorney to be present at the deposition and
to discuss with your legal counsel how to protect confidential communications from being
disclosed in the deposition. I assume you will be using Jeff Lewis as your legal counsel, but
please confirm. My partner June Ailin would be handling the deposition on behalf of the City.
I hope we can work expeditiously together to resolve these public record issues. Please
work with Juliette Tran of our office and let me know of any problems.
01203.0030/450415.2
B-1
Brian Campbell
February 26, 2018
Page 2
Very truly yours,
ALESHIRE & WYNDER, LLP
David J. Aleshire
City Attorney
DJA:rsb
cc: Mayor & Members of the City Council
Doug Willmore
June Ailin
Juliette Tran
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HILL, FARRER & BURRILL LLP
I
KEVIN H. BROGAN (Bar No. 089427)
JEFFREY B. BELL (13ar No. 269648)
I , A ST TI '111 No, OWL
(Bair 162)
R 0 Du N "r- Y
One California Plaza, 37th Floor
300 South Grand Avenue
Los Angeles, CA 90071-3147
Telephone: ('213) 620-0460
Fax: (213) 624-118,40
Attorneys for Defendant
GREEN HILLS MEMORIAL PARK
SUPERIOR COt.JR'l I OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
SHARON LOVE'S, an individual, et
al,
Plaintiffs,
vs.
CITY OF RANCHO PALOS
VERDES, a General Law City;
GREEN HILLS MEMORIAL
PARK; a California Corporation, and
DOES I - 10, inclusive,
Defendants.
CASE NO. BC629637
[Assigned to the Hon, David Sotelo]
Dept, 40]
NOTICE OF CONTINUANCE OF
DEPOSITION OF BRIAN CAMPBELL
AND DEMAND FOR PRODUCTION
OF DOCUMENTS
Date: March 7, 2018
Time: 10:00 a.m.
Place: 300 S. Grand Ave., 37"' Floor
Los Angeles, CA 90071
TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that defendant Green Hills Memorial Park ("GREEN
HILLS") shall take the deposition upon oral examination of Brian Campbell previously
noticed for February 20, 2018, has been continued, at the request of the deponent, to
March 7, 2018, at 10:00 a.m. All other terms and conditions contained in the original
notice of deposition are incorporated herein and remain in full force and effect.
NOTICE; OF CON'T'INUANCE OF DEPOSITION OF BRIAN CAMPBELL AND DEMAND FOR PRODUCTION OF DOCUMEN'rs
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DATED: Januarys , 2018
FIFB 1876992.1 G7762002
HILL, FAI[ tR. ?IZ �' 1 .111:[ZII,I LLP
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Attorneys for Defendant
GREEN HILLS MEMORIAL PARK
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NOTICE OF CONTINUANCE OF DEPOSITION OF BRIAN CAMPBELL AND DEMAND FOR PRODUCTION OF DOCUMENTS
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PROOF OF SERVICE
The undersigned declares:
I am a resident of the state of California and over the age of eighteen years, and
not a party to the within action; my business address is Hill, Farrer & Burrill LLP, One California
Plaza, 37th Floor, Los Angeles, California 90071-3147, On January 31, 2018, I served the
within documents:
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by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.rn,
Cby placing the document(s) listed above in a sealed envelope with postage thereon
i!�i fully prepaid, in the United States mail at Los Angeles, California addressed as set
forth below.
® by causing personal delivery by of the document(s) listed above to the
person(s) at the address(es) set forth below.
Ejby placing the document(s) listed above in a sealed _ envelope and
t_ t affixing a pre -paid air bill, and causing the envelope to be delivered to
a agent for delivery.
E] by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.
® by electronic mail: I transmitted a true copy of such documents) described above,
via electronic mail to: see attached service list below.
SEE ATTACHED SERVICE LIST
I am readily familiar with the lirnl's practice ot'collection and piocessirxg
correspondence for mailing, Under that practice it would be deposited with the U.S. Postal
Service on that same day with postage- thereorr, fully prepaid in the ordinary course of business. i
am aware that on motion of the party served, service is presumed irrvalid if postal caiicellation
date or postage meter date is more than one day sifter date ot'deposit for nailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Executed on January 31, 2018, at 1,10. Angcics, California,
I Erni A. Nonato
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SERVICE LIST
'haron Loveys, el a' vs. I-',*,, � I
S 11 -,,y of Palos Verdes, et al.
Los Angeles Superior Court, Case No. BC629637
Noel Weiss, Esq,
LAW OFFICES OF NOEL WEISS
13700 Marina Pointe Drive, #922
Marina del Rey, CA 90292
Ellen Berkowitz
GREENBERG TRAURIG, LLP
1840 Century Park East, Suite 1900
Los Angeles, CA 90067-2121
HrB 1625630.1 G7762002
A ttorneysfor Petitioner SHARON LO VE YS,
individually and a Class Representative Of
Vista Verde Homeowners
Tel: 310.822,0239
Fax: 31.0,822.7028
Email: noelweissL@ca.rr.com
Tel: (310) 586-7763
Email: berkowitze La)gtlaw,com;
kh—anr@
,gtlaw.com
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