Wednesday, August 5, 2015
C.A. Won’t Examine Claims of Corruption in South Gate
By a MetNews Staff Writer
A merchant who wanted to prove at trial that he has been a victim of government corruption in the City of South Gate won’t have that hope realized, under a decision by the Court of Appeal for this district which found that his attorney’s brief is too confounding for the arguments to be addressed.
The Div. One opinion, filed Friday and not certified for publication, came in a case that had been before the division previously. Its May 25, 2012 opinion, authored by then-Associate Justice Frances Rothschild, said that plaintiff/appellant Francisco Flores had stated a cause of action for a federal civil rights violation, and reversed a judgment of dismissal as to that cause, while otherwise affirming.
The dismissal followed the sustaining of demurrers to all causes of action by Los Angeles Superior Court Judge Raul A. Sahagun.
In her 2012 opinion, Rothschild gave no indication of having difficulty deciphering the brief by Flores’s lawyer, Nicholas Weimer.
On remand, the case went before Los Angeles Superior Court Judge Margaret Miller Bernal. She granted summary judgment in favor of the defendants, and Flores appealed.
This time, the decision was again authored by Rothschild, now presiding justice, who found Weimer’s latest brief to be in violation of rules and, in places, unfathomable.
Flores contends that his business in South Gate, which sells shoes and soccer equipment, has been the subject of discriminatory enforcement of ordinances because his nearest competitor—one literally within a stone’s throw of Flores’s establishment—has political clout in the city (where official allegations of corruption have in past years emerged).
At the northwest corner of Tweedy Boulevard and San Antonio Avenue is Niky’s Sports, identified in the opinion as “Niki’s Soccer Center,” run by Flores. Kitty corner to it is an establishment known as Shoe Port, owned by Angel Colon, named as a defendant along with the city.
In February 2010, the city cited Flores for having painted his store blue and gold. An ordinance required that colors on commercial buildings be, as Rothschild said in 2012, in “earth tones and brown,” or, she phrased on Friday, there was a “required color palette” from which Flores had deviated.
Flores sought a variance from the city planning commission. Colon was a member of that commission and, at the hearing on the request for a variance, did not recuse himself and, according to the pleading, announced that “he was not going to allow plaintiff to have the variance.”
The variance was denied, and, in May 2010, Flores repainted his store.
According to Friday’s opinion:
“Indeed, Colon painted a sign in the same ordinance-offending blue that Flores had originally used, then waved at Flores from across the street.
There were other South Gate stores that did not conform to the hue ordinance and no proceedings were brought against them, Flores complained.
The 2012 opinion said:
“Flores’s complaint also alleges that the city has not allowed him to promote his business in ways that other businesses in the city are ‘routinely allowed’ such as having balloons at his store to promote a sale, having an electric sign in his store window and placing advertisements in the window. He further alleges that the City allows Colon to violate city ordinances ‘with impunity,’ including ordinances regulating the color of buildings and the number of parking spaces, ‘in an attempt to destroy plaintiff’s business and gain unfair advantage in competing with plaintiff’s business.’ ”
That opinion declared:
“Flores’s complaint alleges a cause of action under [43 U.S.C.] section 1983. It states that Flores and Colon are business competitors—both selling soccer equipment in stores in the City of South Gate; that Colon, a member of the South Gate planning commission, and the City are depriving him of his right to equal protection of the laws by engaging in a pattern and practice of invidious discrimination in which city ordinances are enforced against him but not against Colon; and that this selective enforcement is done with the intent ‘to drive plaintiff out of business and give [Colon] every advantage in competing with plaintiff.’ ”
Rothschild’s current opinion makes no reference to the earlier one which authorized Flores’s civil rights action. It recites Bernal’s finding, in granting summary judgment to the defendants, that Flores could not maintain such a cause of action because the city’s repainting order was not aimed at him, personally, but at his corporation, Soccer Center, Inc.
The opinion notes that in responding to the motion, Flores brought up the contention, for the first time, that Colon’s building was sold to him by the city at an unreasonably low price, but Bernal found that any action on that basis would be time-barred.
Rothschild declined to decide the controversy on the merits. She pointed to various fallings in Weimer’s brief and declared:
“As the City and Colon point out, the 65-page opening brief is, at times, ‘virtually impossible to decipher.’ Flores’s opening brief begins, for example, with a rambling and largely incoherent eight-page introduction that digresses on matters such as Flores’s unsuccessful attempt to file a fourth amended complaint, the existence of a second lawsuit that may be affected by our decision in this case, and a history of discovery efforts. The substantive discussion that follows is often irrelevant, unsupported by legal authority, and without cogent argument.
“Because of the pervasive failure to provide citations to the record on essential factual points and other deficiencies in Flores’s briefs, we conclude that Flores has failed to satisfy his burden to overcome the presumption of correctness and to establish error.”
The case is Flores v. City of South Gate, B253962.
Raul F. Salinas of AlvaradoSmith represented the city and Colon on appeal, as he did in 2012.
Weimer—registered with the State Bar as “Nickie Allen Weimer”—was admitted to practice in 1976. He was not eligible to practice law from Dec. 27, 1979 to May 8, 1980 owing to a failure to pay bar dues.
He received a public reproval in 1993.
This was not the first time an appellate court has drawn attention to the nonconformity of his brief with the rules. In the 2002 unpublished case of Fergus ex rel. Clark Fergus & Associates Profit Sharing Trust v. EPS Engineering Services, Inc., Weimer represented the defendants/appellants, and Justice William Rylaarsdam of the Fourth District’s Div. Three wrote:
“Although defendants designated the entire reporter’s transcript, the clerk’s transcript is sparse. Moreover, the exhibits, on which both parties heavily rely, were not designated and are not before us. [¶] Additionally, defendants included in their brief only favorable evidence rather than all ‘significant facts’ as required….As a result, we may treat the claims as waived….And the facts included are not ‘limited to matters in the record.’ ”
South Gate Corruption
The City of South Gate has, in the recent past, been linked to corruption. From 2001 to 2003, then-city treasurer, Albert Robles, in concert with three members of the city council, accepted bribes.
The four were recalled by voters on Jan, 28, 2003. Robles was convicted of bribery in July 2005—having been found to have solicited more than $1.8 million in bribes from bidders on city contracts—and was later sentenced to 10 years in federal prison. (In March, he was resentenced to the seven years he had already served after convictions on two counts were reversed.)
Suspected corruption in connection with a South Gate recall effort precipitated an armed raid on the MetNews premises in 2002 to uproot whether city funds had been used to pay for a published notice of the intended recall. No payment had yet been made for the publication.
The city’s website boasts that its clerk, Carmen Avalos, “has received numerous recognitions for her efforts to end corruption in South Gate.”
A June 24, 2012 article on cities in the southeast portion of Los Angeles County appeared in the Los Angeles Times. Staff writers Hector Becerra and Sam Allen observed:
“For nearly three decades, corruption has been endemic in the area. A South Gate treasurer looted $20 million from the city.”
They suggested combining the scandal-plagued small cities into one city that could be more easily policed.
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