Monday, March 30, 2020
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Ninth Circuit:
Action Properly Dismissed Against Locals Deterring Beach Access
Its Opinion Portrays Conduct of City of Palos Verdes Estates More Favorably Than Decision of California Court of Appeal Issued Just Three Days Earlier
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday slammed the door on efforts of non-residents of Palos Verdes Estates to gain compensatory damages and injunctive relief based on alleged efforts of a gang of local residents—the “Lunada Bay Boys”—to dissuade outsiders from using their beaches through intimidation and sometimes violence.
That court’s view of the efforts of the city to abate the conduct, referred to as “localism,” is viewed more sympathetically than it is by the state Court of Appeal for this district in a case decided three days earlier (though the federal court viewed evidence proffered in connection with summary judgment while the state panel dealt with allegations of a complaint).
A memorandum opinion by a three-judge panel of the Ninth Circuit affirms the dismissal by District Court Judge S. James Otero of the Central District of California of federal constitutional claims brought by a group called the “Coastal Protection Rangers” and by individuals against the city, its then-police chief, and members of the Bay Boys. In dismissing with prejudice, Otero opted not to retain jurisdiction over state claims, and a action was then brought on those claims in Los Angeles Superior Court.
Anti-SLAPP Motion
Div. Five of this district’s Court of Appeal, in an opinion, by Presiding Justice Laurence D. Rubin of Div. Five, was filed on March 24. It affirms Los Angeles Superior Court Judge Carolyn Kuhl’s denial of an anti-SLAPP motion brought by two of the alleged Bay Boy members.
Stating facts common to both the state and federal litigation, Rubin said:
“Lunada Bay is a premier surf spot, located in Palos Verdes Estates. The Lunada Bay Boys are alleged to be a group of young and middle-aged men, local to Palos Verdes Estates, who consider themselves to be the self-appointed guardians of Lunada Bay. One of their tenets is to keep outsiders away from the surf location through threats and violence. Plaintiffs are non-locals who have tried to surf Lunada Bay, but encountered harassment by the Bay Boys.”
Issues decided by the state and federal appellate courts are unrelated.
Ninth Circuit Opinion
The Ninth Circuit held that the Coastal Protection Rangers lacks “organizational and associational standing” and declares that two plaintiffs who are surfers, Cory Spencer, Diana Reed, cannot maintain an action based on the Privileges and Immunities Clause because they reside in California.
With respect to an equal protection claim against the city and former Police Chief Jeff Kepley, the opinion says:
“As a threshold matter, the record is devoid of any genuine dispute of material fact showing that the City or Police Chief Kepley discriminated against Spencer or Reed in its provision of services. The City provided extra police patrols to Spencer upon request during his visit to Lunada Bay. and the City ultimately investigated Reed’s complaint and made an arrest. The plaintiff-appellants have presented no evidence that the police services provided to them are inferior to the police services provided to residents….
“The record also shows that the City took significant efforts to curb the Bay Boys’ actions. For example, the City assigned extra police patrols to Lunada Bay. passed an ordinance barring persons from blocking access to the beach, and placed fliers encouraging surfers to report incidents. Perhaps the City could have done more (as the plaintiff-appellants point out), but it also has other competing public safety issues that it must address with limited police resources.”
Rubin’s Opinion
Rubin’s opinion rejects the contentions by defendants Michael Thiel and Charlie Mowat that Kuhl erred in denying their anti-SLAPP motion, saying:
“[W]e focus on the tortious acts in which they are alleged to have conspired—the harassment of non-locals, the trail-obstructing, the rock-throwing, the running over with surfboards, the punching, the theft, the vandalism, the sexual harassment, the threats, and the intimidation. None of this is protected speech or petitioning activity.”
The opinion notes:
“Broadly speaking, plaintiffs allege that the Lunada Bay Boys, sometimes with the tacit approval of City officials who did nothing to stop them, engaged in what is known as “localism”—a practice of keeping outsiders away from the surf site through threats and violence.”
Allegations Against City
It says in a footnote:
“The complaint alleges more than just tacit approval on the part on the City; it alleges that the City used its discretion to enforce municipal laws in a manner that discriminates against outsiders, and ignored requests of the California Coastal Commission to make Lunada Bay more accessible to the public.”
The footnote continues:
“As we are only concerned with the anti-SLAPP motions of Thiel and Mowat, we do not further discuss the allegations against the City.”
The Ninth Circuit’s opinion came in Spencer v. Lunada Bay Boys, 18-55364. The state Court of Appeal issued its decision in Spencer v. Mowat, 2020 S.O.S. 1366.
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