1 2 3 4 5 6 7 8
KAMALA D. HARRIS Attorney General of California ERIC M. KATZ Supervising Deputy Attorney General KURT WEISSMULLER Deputy Attorney General State Bar No. 117187 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-7232 Fax: (213) 897-2802 E-mail:
[email protected] Attorneys for Respondent Santa Monica Bay Restoration Commission
EXEMPT FROM FILING FEES PER GOV. CODE SECTION 6103
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF LOS ANGELES
11 12
BALLONA WETLANDS LAND TRUST,
13
Petitioner, RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S v. OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SANTA MONICA BAY RESTORATION SPECIAL INTERROGATORIES; COMMISSION, and DOES 1 to 10, DECLARATION OF KURT WEISSMULLER FILED Respondents. CONCURRENTLY HEREWITH
14 15 16 17 18 19 20 21
Case No. BS154128
Date: October 29, 2015 Time: 1:30 pm Dept: 82 Judge: The Honorable Mary H. Strobel Trial Date: January 26, 2016 Action Filed: February 11, 2015
22 23 24 25 26 27 28 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER FILED ON CURRENTLY HEREWITH (BS154128)
1
TABLE OF CONTENTS
2
Page
3
INTRODUCTION .......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 2 ARGUMENT .................................................................................................................................. 5 I. The Commission is a Separate and Distinct Entity from the Bay Foundation, and Cannot be Compelled to Provide Petitioner with Information in the Bay Foundation’s Possession. ................................................... 5 II. Petitioner has Misused the Discovery Process by Refusing to Accept Proper and Complete Discovery Responses Provided by the Commission, Resulting in Unnecessary Expense and Delay. ....................................................... 8 A. The Commission Adequately Responded to Interrogatory No. 5. .............. 8 1. The Commission’s Relevance Objection is Appropriate. ............... 8 2. The Commission Fully Responded to the Interrogatory. ................ 9 B. The Commission Adequately Responded to Interrogatory No. 6. ............ 10 C. The Commission Adequately Responded to Interrogatory Nos. 18 and 19. ....................................................................................................... 11 CONCLUSION ............................................................................................................................. 12
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
i RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER FILED ON CURRENTLY HEREWITH (BS154128)
1
TABLE OF AUTHORITIES
2
Page
3
CASES
4
Bender v. Williamsport Area School Dist. (1986) 475 U.S. 534 ..............................................................................................................6, 11
5 6 7 8 9 10 11 12 13 14
Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun v. Superior Court (2013) 218 Cal.App.4th 577 .......................................................................................................5 California State University Fresno Association v. Superior Court (2001) 90 Cal.App.4th 810 .........................................................................................................5 Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 ..........................................................................................................8 Fullerton v. State Water Resources Control Bd. (1970) 90 Cal.App.3d 590.....................................................................................................7, 11 People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060 ...............................................................................................7, 11
15
Wanee v. Board of Directors (1976) 56 Cal. App.3d 644..........................................................................................................5
16
STATUTES
17 18 19
Food and Agricultural Code § 4101-4108 ................................................................................................................................6 § 4101.3 (a) .................................................................................................................................6
22
Public Resources Code § 30988-30988.3 ....................................................................................................................2, 6 § 30988 (c) .................................................................................................................................2 § 30988 (d) .................................................................................................................................2 § 30988.2 (b)(1) .........................................................................................................................3
23
OTHER AUTHORITIES
24
Senate Bill 1381 ................................................................................................................................2
25
U.S. EPA, Section 320 Grant ............................................................................................................3
20 21
26 27 28
ii RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER FILED ON CURRENTLY HEREWITH (BS154128)
1
TABLE OF AUTHORITIES (continued)
2
Page
3
MISCELLANEOUS
4
Discovery Act .............................................................................................................................2, 12
5 6
Federal Clean Water Act § 320. .......................................................................................................................................2, 3
7
Public Records Act ...............................................................................................................1, 2, 5, 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
iii RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER FILED ON CURRENTLY HEREWITH (BS154128)
INTRODUCTION
1 2
Discovery is not a game. Yet that is precisely Petitioner's approach. This case involves a
3
simple, straightforward Public Records Act (PRA) dispute that is premised on a theory, rejected
4
in other PRA cases, that a state agency, here Respondent Santa Monica Bay Restoration
5
Commission (Commission), not only has the obligation to provide its records in response to a
6
PRA request (which the Commission has done), but also must provide the records of an
7
independent, private non-profit entity, here the Santa Monica Bay Restoration Foundation (Bay
8
Foundation) merely because the two entities share the same mission to restore Santa Monica Bay.
9
Yet the Legislature has expressly recognized that the legal separateness of such state and private
10
entities who share a common mission must be respected and preserved. Petitioner’s attempt to
11
expand the reach of the PRA, and derivatively the Commission’s discovery obligations in this
12
matter, should be rejected.
13
At issue in this motion are four interrogatory responses (nos. 5, 6, 18 and 19), that
14
Petitioner claims the Commission answered improperly. Although Petitioner claims it is only
15
seeking discovery of information respecting the Commission, it in fact seeks information that is
16
not within the Commission’s possession, but resides, if anywhere, with the Bay Foundation, the
17
latter of course not being either subject to the PRA or a party to this action. After a seemingly
18
endless meet and confer process, the Commission supplemented its initial responses to these
19
interrogatories not once, but twice. The Commission has been transparent and forthcoming and
20
provided all of the information in its possession that Petitioner sought and to which it is entitled.
21
There is nothing more.
22
Petitioner’s unfounded motion to compel is brought against the backdrop of out-of-control
23
discovery it has taken in this otherwise straightforward PRA case. Petitioner has taken over a half
24
dozen depositions of individuals with former or current affiliations with the Commission and/or
25
Foundation; served numerous sets of interrogatories, requests for admissions and document
26
requests; and, remarkably, has served document subpoenas on ten separate non-party state
27
agencies seeking information that can have no conceivable relevance to the issues in this case.
28
1 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
(See Declaration of Kurt Weissmuller (Weissmuller Decl.), ¶ 7, Exh. F, detailing the irrelevant
2
information sought.)
3
When boiled down, Petitioner appears to have two objectives in this case: 1) Petitioner
4
seeks to broaden the PRA to require state agencies to not just produce public records in their own
5
possession or control as the law requires, but to now compel agencies – under some unknown
6
authority – to obtain and produce records and information from private entities with whom they
7
have some level of interaction; and 2) it seeks to stretch the Commission’s discovery obligations
8
well beyond the permissible limits found in the Discovery Act. As for the former, Petitioner’s
9
quest for an expansion of the PRA should be directed to the Legislature; as for the latter, the
10
Commission demonstrates below that its responses to these interrogatories are more than
11
sufficient and entirely forthcoming. Accordingly, Petitioner’s motion and its request for
12
sanctions should be denied.
13 14
STATEMENT OF FACTS In 1988, the State of California and the United States Environmental Protection Agency
15
(U.S. EPA) established the Santa Monica Bay Restoration Project (Project) as a National Estuary
16
Program under the provisions of Section 320 of the federal Clean Water Act. The Project was
17
designated by the U.S. EPA as an entity to plan for the Santa Monica Bay’s restoration and to
18
oversee implementation of the Santa Monica Bay Restoration Plan. (Pub. Resources Code,
19
§ 30988, subd. (c).) In 2002, the Legislature renamed the project area as the Santa Monica Bay
20
Restoration Commission (Commission) through Senate Bill 1381, and also called for the
21
development of a Memorandum of Understanding that delineates the Commission’s authority and
22
its governance structure with respect to the implementation of state programs affecting the Santa
23
Monica Bay, and that prescribes the Commission’s membership. (Pub. Resources Code,
24
§§ 30988-30988.3.)
25
The Commission’s mission is to restore and enhance the Santa Monica Bay through
26
actions and partnerships that improve water quality, conserve and rehabilitate natural resources,
27
and protect the bay’s benefits and values. The Commission is a nonregulatory, locally based state
28
entity that independently executes its duties. (Pub. Resources Code, § 30988, subd. (d); see also 2
RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
Weissmuller Decl. Exh. I [Santa Monica Bay Restoration Commission Memorandum of
2
Understanding (MOU), p. 2].) Its membership includes federal, state, and local public agency
3
officials and employees and representatives of other stakeholder interests. The enabling statute
4
provides that its governance structure shall be set forth in the MOU. (Pub. Resources Code §
5
30988.2, subd. (b)(1).) As set forth in the MOU, the Commission is composed of the Governing
6
Board, the Bay Watershed Council, and a Technical Advisory Committee. (Weissmuller Decl.
7
Exh. I at pp. 11-13.)
8
The Bay Foundation is a non-profit entity that shares the environmental restoration
9
objectives of the Commission. Formed in 1991, the Bay Foundation raises and expends funds for
10
research, education, planning, cleanup efforts and other priorities identified in the Commission’s
11
Bay Restoration Plan. The Bay Foundation’s Board of Directors is comprised of community
12
members, local government and agency representatives, and members of the Commission’s
13
Governing Board. The Bay Foundation receives the bulk of its funding from a U.S. EPA grant
14
pursuant to section 320 of the federal Clean Water Act. (33 U.S.C. §1330(g).) The Bay
15
Foundation is a legally separate and distinct entity from the Commission. (See Memorandum of
16
Agreement Between the Commission and Bay Foundation (MOA), pp. 2-4, Weissmuller Decl.,
17
Exh. J.)
18
To carry out its statutory mission, the Commission promulgates an Annual Work Plan,
19
that identifies projects that are approved and funded by the U.S. EPA and other sources. The
20
Annual Work Plans serve many functions, namely: detailing the activities of the Commission and
21
its “staff members” in implementing the Bay Restoration Plan; identifying the Bay Foundation’s
22
activities to support the Commission’s efforts to satisfy the requirements of U.S. EPA’s section
23
320 Grant; and conducting other activities in coordination with and with funding from other state,
24
local or federal entities that contribute to the National Estuary Program. The Annual Work Plans
25
also identify activities of other entities that contribute to the restoration of the Santa Monica Bay
26
(e.g., the co-permittees of the Los Angeles County MS4 permit issued by the Los Angeles
27
Regional Water Quality Control Board (Regional Board); entities receiving grants from the
28
California Coastal Conservancy, the State Water Resources Control Board, and other entities; 3
RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
other state, federal, or local agencies that implement projects, such as the California Department
2
of Fish and Wildlife, California Department of Parks and Recreation, Los Angeles County,
3
National Parks Service, and the U.S. Army Corps of Engineers). A significant function of the
4
Annual Work Plans is to inform U.S. EPA how the National Estuary Program is being
5
implemented for the Santa Monica Bay National Estuary. Thus, the Annual Work Plans identify
6
general tasks and activities of many different entities, not just those of the Commission.
7
The Annual Work Plans also set forth a budget that includes services of employees or
8
contractors (i.e., staff members) of the Bay Foundation to support the Commission and the
9
National Estuary Program. The Bay Foundation has been providing funding and services to
10
support the mission of the Commission dating back to when the Commission was still the Project,
11
and nothing in the legislation creating the Commission even suggested that this legislatively-
12
approved arrangement should not continue.
13
Contrary to Petitioner’s claims, nothing in the record suggests that the Commission
14
controls the day-to-day management of Bay Foundation employees or contractors, or that it
15
possesses information regarding the Bay Foundation’s hiring practices, to which much of
16
Petitioner’s discovery at issue in this motion is directed. (See Weissmuller Decl., Exh. J [MOA,
17
p. 4, "[T]he Foundation . . . maintains staff and provides administrative services to implement the
18
Bay Restoration Plan."].) Records regarding the dates that the Bay Foundation hired a particular
19
employee are within the Bay Foundation’s control, not the Commission’s. (See id. [MOA, p. 4,
20
"The Foundation Board of Directors establishes Foundation administrative and personnel policies
21
. . . .”, underlining added.) Yet it is precisely this kind information that Petitioner seeks in its
22
wide-ranging and overly inclusive interrogatories.
23
The cooperation between the Commission and Bay Foundation has long been established,
24
was long-ago approved, and has been continuously funded. This relationship was established in
25
the Bay Restoration Plan at the inception of the Commission’s creation and is continually re-
26
affirmed in the Annual Work Plans. As stated previously, these kinds of state agency/private
27
non-profit arrangements to implement a particular noteworthy public good, be it environmental
28
4 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
restoration of impaired natural resources, as is the case here, or other endeavors, are far from
2
unusual.
3
Furthermore, these legislatively approved arrangements are hardly a sinister attempt to
4
“hide” information from the public, as Petitioner has repeatedly, and without basis, claimed.
5
Examples of public-private partnerships abound. For example, and as described further below,
6
the California Science Center, a state agency, and the California Science Center Foundation, a
7
private nonprofit entity, have a long standing cooperative arrangement that, as with the
8
Commission and the Bay Foundation at issue in this case, is well-recognized, common,
9
legislatively-approved and advances the common good. Petitioner’s efforts to malign, without
10
any credible basis, such common-sense public/private arrangements in order to advance its PRA
11
agenda through this lawsuit and its attendant harassing discovery tactics should be rejected
12
outright.
13 14
ARGUMENT I.
15
THE COMMISSION IS A SEPARATE AND DISTINCT ENTITY FROM THE BAY FOUNDATION, AND CANNOT BE COMPELLED TO PROVIDE PETITIONER WITH INFORMATION IN THE BAY FOUNDATION’S POSSESSION.
16
For almost 15 years, California courts have consistently held that the documents maintained
17
by a non-governmental entity are not subject to the PRA, even when the public agency and the
18
private entity have close contact and a common mission. (See California State University Fresno
19
Association v. Superior Court (2001) 90 Cal.App.4th 810, 828-9 ("CSU Fresno") [" . . .we
20
conclude a nongovernmental auxiliary organization is not a 'state agency' for purposes of the
21
CPRA. The words 'state body' and 'state agency' simply do not include a nongovernmental
22
organization."].) Moreover, the CSU Fresno court held that "auxiliary organizations are not part
23
of the state body they aid or assist." (Id. at 826; citing Coppernoll v. Board of Directors (1983)
24
138 Cal. App.3d 915, 918; Wanee v. Board of Directors (1976) 56 Cal. App.3d 644, 648-649;
25
California State Univ. v. Superior Court (2001) 90 Cal. App.4th 810, 826.) CSU Fresno was
26
followed by Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun
27
v. Superior Court (2013) 218 Cal.App.4th 577 [holding that a database, solely prepared and
28
5 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
maintained by a private, unincorporated association licensed by the Board of Pilot Commissioners
2
was not subject to disclosure.].)
3
Thus, the relationship between the Commission and the Bay Foundation is not
4
uncommon. Public-private arrangements, where a state agency enters into a relationship with one
5
or more other entities for funding purposes and to support the mission of the state agency, are
6
well recognized and have been sanctioned by the Legislature. For example, the California
7
Science Center is a public-private partnership between the State of California and the California
8
Science Center Foundation, a non-profit organization. (Weissmuller Decl. ¶ 2; Exhs. A and B.)
9
The California Science Center’s structure, and its relationship with the California Science Center
10
Foundation was created by the legislature. (See generally Food & Agr. Code, § 4101-4108;
11
Weissmuller Decl. Exh. E.)
12
The language contained in the Food and Agricultural Code sections establishing the
13
California Science Center confirms that they are two separate and distinct entities. For example,
14
section 4101.3 permits the California Science Center to enter into a site lease with the California
15
Science Center Foundation and makes clear that, while the California Science Center Foundation
16
may expend nonstate funds, such additional expenditures will not result in “additional state
17
operation and maintenance costs.” (Food & Agr. Code, § 4101.3, subd. (a).) In addition, just as
18
with the Commission and the Bay Foundation, some individuals hold positions in both the
19
California Science Center and the California Science Center Foundation. For example, Tony
20
Budrovich serves as both the Deputy Director of Operations of the California Science Center and
21
is the Senior Vice President for the California Science Center Foundation. The President and
22
CEO of the California Science Center, Jeffrey N. Rudolph, is also the President of the California
23
Science Center Foundation. (See Weissmuller Decl., ¶ 4; Exh. C.)
24
Here, the Commission’s relationship with the Bay Foundation is unquestionably
25
analogous to that of the California Science Center and its foundation and equally valid. (Pub.
26
Resources Code, §§ 30988-30988.3.) While the entities’ ultimate goal – restoration of Santa
27
Monica Bay – may be similar, the Commission and Bay Foundation have different functions and
28
duties in attempting to reach that goal. While some individuals may serve in leadership positions 6
RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
of both entities, this hardly suggests or implies – as Petitioner claims – that the separateness of the
2
Commission and the Bay Foundation is compromised. In fact, the Supreme Court has recognized
3
the principle that “[a]cts performed by the same person in two different capacities are generally
4
treated as the transactions of two different legal personages.” (Bender v. Williamsport Area
5
School Dist. (1986) 475 U.S. 534, 543, fn. 6 [the court refusing to recognize Article III standing
6
of an official in his "individual" capacity when the claim arose while acting in his “official”
7
capacity.].)
8
Moreover, California agencies are treated as legal entities separate and distinct from each
9
other, with the power to sue each other when execution of their statutory authority brings them
10
into conflict. (See, e.g., Fullerton v. State Water Resources Control Bd. (1970) 90 Cal.App.3d
11
590, 593 & fns. 1-2 [Department of Fish and Game sought a writ of mandate to compel the Water
12
Resources Control Board to issue a permit for “in-stream” appropriation of water to protect fish
13
resources.].)
14
Nor can agencies generally be compelled via discovery requests to produce information in
15
the custody, control or possession of non-party agencies. In People ex rel. Lockyer v. Superior
16
Court, a defendant brought a motion seeking discovery from the Attorney General, the
17
Department of Consumer Affairs, the Medical Board and the Board of Optometry. The court held
18
that the People could not be compelled to produce knowledgeable people or relevant documents
19
from the other agencies. (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060,
20
1076.)
21
This common-sense rule prohibiting a party from compelling one state agency to produce
22
information from a different state agency is even more compelling here. Petitioner’s
23
interrogatories seek information from the Commission, a state agency, that is in the possession of
24
the Bay Foundation. If the law disallows a party to compel one state agency from gaining access
25
to discovery information from another (non-party) agency, then it clearly prohibits the agency
26
from gaining information in the possession of a (non-party) private entity, here the Bay
27
Foundation.
28
7 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
While the PRA applies to the Commission as a state agency, it does not apply to the Bay
2
Foundation, a private non-profit organization. Here, Petitioner through litigation and the
3
discovery process, tries to circumvent the law that limits the PRA to state agencies. Such an
4
attempt to obtain private entity information constitutes a misuse of the discovery process and is
5
unquestionably improper. For this reason, among others detailed below, Petitioner’s Motion
6
should be denied.
7
II.
8 9
PETITIONER HAS MISUSED THE DISCOVERY PROCESS BY REFUSING TO ACCEPT PROPER AND COMPLETE DISCOVERY RESPONSES PROVIDED BY THE COMMISSION, RESULTING IN UNNECESSARY EXPENSE AND DELAY. Petitioner claims the Commission’s responses to four interrogatories are inadequate. It
10
cites Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, to define the standard of discovery,
11
namely that responses must be “as complete and straightforward as the information reasonably
12
available to the responding party permits [and] if an interrogatory cannot be answered
13
completely, it shall be answered to the extent possible.” (Petitioner’s Motion at p. 4:22-23.) The
14
Commission’s responses undoubtedly satisfy this standard.
15 16
A.
The Commission Adequately Responded to Interrogatory No. 5.
In Interrogatory No. 5, Petitioner requests for each “staff member” listed in the last five
17
Annual Work Plans, the dates each such individual served as a staff member. In response, the
18
Commission provided a detailed spreadsheet indicating the years that each individual listed in the
19
Annual Work Plans served as a “staff member.” (See Weissmuller Decl., Exh. H, and Exh. A
20
thereto.) Petitioner appears to take issue with this response for two reasons: the Commission’s
21
objection based on relevance, and the fact that the Commission responded in years rather than
22
months or days.
23
1.
The Commission’s relevance objection is appropriate.
24
Petitioner complains that although the Commission fully responded to this interrogatory
25
after interposing a relevance objection, the Commission must be ordered to strike its objection.
26
(Petitioner’s Separate Statement, p. 4.) There is nothing improper about the Commission
27
asserting a relevance objection to preserve it for trial, but nonetheless providing a full and
28
complete response and withholding no information based on the relevance objection. (See 8
RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
Weissmuller Decl., Exh. H, pp. 7-8.) Such a preservation of objections prior to providing
2
responses to an interrogatory is an unremarkable common practice, and hardly warrants a finding
3
that the Commission’s response is somehow objectionable.
4 5
2.
The Commission fully responded to the interrogatory.
The Commission responded to the interrogatory by referencing the activities the “staff
6
member” performed in each fiscal year for the Commission. (Petitioner’s Separate Statement pp.
7
6-8.) Petitioner seems to argue that the Commission was required to provide the specific
8
employment dates (presumably days of each year) that each person listed as a “staff member” in
9
the Annual Work Plans served in that capacity. (Petitioner’s Separate Statement, Exh. B.) As the
10
Commission explained in its verified discovery responses, it has no “employees,” and each of the
11
persons listed as “staff members” that perform duties for the Commission are either employed by
12
the Regional Board or by the Bay Foundation. The information the Commission relied on in
13
providing its response was based on the public information found in the Annual Work Plans,
14
which list the individuals’ activities on a fiscal year basis. The Commission’s response was based
15
on the information it possesses.
16
As explained above and in the Commission’s discovery responses and yet again in meet-
17
and-confer correspondence (Weissmuller Decl. Exhs. G & H), the Commission does not possess
18
the specific information Petitioner seeks, because the Commission does not control the day-to-day
19
management of employees/contractors of the Bay Foundation. Nor does it have the right to
20
information regarding hiring practices of the Bay Foundation. Records regarding the dates that
21
the Bay Foundation (or the Regional Board) hired a particular employee are presumably within
22
the control of those entities, not the Commission. (See Weissmuller Decl., Exh. J [MOA, p. 4].)
23
As stated previously, the Commission and Bay Foundation are separate entities, and the
24
Commission is not legally obligated to seek records from the Bay Foundation regarding when an
25
employee or consultant for the Bay Foundation was hired and the exact days and hours those
26
individuals worked on Commission matters. For these reasons, the Commission’s response to
27
this interrogatory is more than satisfactory.
28
9 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1 2
B.
The Commission Adequately Responded to Interrogatory No. 6.
In Interrogatory No. 6, Petitioner requests that for each “staff member” listed in the last
3
five Annual Work Plans, that the Commission describe the “official duties” of each such
4
individual. In response, the Commission provided a spreadsheet (described above) that, in
5
addition to dates requested in interrogatory 5, also indicated the last position each "staff member"
6
listed in the Annual Work Plans held. (See Weissmuller Decl., Exh. H, and Exh. A thereto.) In
7
addition, in its second supplemental responses to these interrogatories, the Commission provided
8
a detailed listing of each individual “staff member” by name, and a description of his or her duties
9
while performing tasks for the Commission, and/or a reference to the Annual Work Plans
10
themselves that describe in detail those duties. (See Weissmuller Decl., Exh. H, pp. 8-12.) The
11
Commission’s response is complete.
12
Here, Petitioner’s raises two issues with the Commission’s response. First, Petitioner
13
asserts that the Commission’s relevance objection was improper. For the same reasons discussed
14
above in Section II.A.1, Petitioner’s argument fails.
15
Petitioner also takes issue with the Commission’s objection to the term “official duties.”
16
(Petitioner’s Separate Statement, p. 9.) Notwithstanding the Commission’s objection to this
17
vague term, the Commission fully responded to the interrogatory with a description of each “staff
18
member's” activities. While Petitioner cites a dictionary definition and a Code section that uses
19
the term “official duties,” it provides no authority whatsoever to support its demand that this
20
Court should order the Commission to withdraw this objection and answer the interrogatory all
21
over again. It is clear from the Commission’s descriptive responses, that include references to the
22
Annual Work Plans – a controlling document for Commission activities – that the description of
23
the staff members’ duties is comprehensive and fully disclosive. No information was withheld on
24
the basis of the objection to the vague term “official duties” as used by Petitioner. Again, the
25
Commission's assertion of a commonplace objection to preserve it for trial, and yet providing a
26
complete response to the best of the Commission’s ability, is perfectly acceptable.
27 28
10 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
1
C.
The Commission Adequately Responded to Interrogatory Nos. 18 and 19.
2
In Interrogatory Nos. 18 and 19, Petitioner requests that the Commission identify each
3
“staff member” that had access to certain Bay Foundation meeting notes (No. 18), and access to
4
Bay Foundation by-laws (No. 19). In both instances, the Commission provided the names of each
5
Commission staff member who may have had access to such information. (Petitioner’s Separate
6
Statement pp. 9-12.) In the case of Interrogatory No. 18, the Commission identified Mr.
7
Villagomez as having had access to the various meeting materials sought in this interrogatory (id.
8
at p. 10 [Second Supplemental Response, “It is [the Commission’s] understanding that Mr.
9
Villagomez conducts various administrative tasks for [the Bay Foundation], including preparing
10
meeting notices, agendas, staff reports, and minutes for [the Bay Foundation]”.) As for
11
Interrogatory No. 19, the Commission identified three individuals identified as staff in the Annual
12
Work Plan that it believes would have had access to the Bay Foundation by-laws, and also
13
indicated that it is likely other employees and consultants for the Bay Foundation would have
14
access to its own by-laws. (Id. at p. 12 [Second Supplemental Response [“The [Commission]
15
would assume that employees and consultants to [the Bay Foundation], including Mr. Tom Ford,
16
Mr. Scott Valor, and Mr. Marcelo Villagomez, would have access to documents of the [Bay
17
Foundation], such as its by-laws”].)
18
Accordingly, these responses provide the information requested. Nevertheless, and never
19
satisfied, Petitioner objects to these interrogatories by presuming that the allegations in its petition
20
frame the issues for discovery, namely because Petitioner alleged the Commission “prepared,
21
owned, used or retained” Bay Foundation by-laws, it must be true. As discussed above, the
22
Petitioner is not entitled – through this litigation – to information in the possession of Bay
23
Foundation employees/contractors, which is presumably what it seeks, even if those
24
employees/contractors also serve in the capacity of a “staff member” of the Commission. An
25
individual may act in two different capacities for different organizations without the two
26
organizations being treated as one for discovery or other purposes. (Bender, supra, at p. 534;
27
Fullerton v. State Bd., supra, at p. 593; People ex rel. Lockyer, supra, at p. 1076). Petitioner
28
refuses to grasp this concept. The Commission is a state agency, and the Bay Foundation is a 11 RESPONDENT SANTA MONICA BAY RESTORATION COMMISSION’S OPPOSITION TO PETITIONER’S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; DECLARATION OF KURT WEISSMULLER (BS154128)
