Petition for Writ of Certiorari — Bogart v. California Coastal Commission
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ve 62 2 OCT -7 1997
NO. ___neetee OF THE CLERK
In The
Supreme Court of the United States
October Term, 1997
¢
PETER D. BOGART, an individual; OJAVAN INVESTORS,
INC., a corporation; PORT LEMOORE CORPORATION, a
corporation; SUTTON PROPERTIES, INC., a corporation;
SEALUBBER, INC., a corporation; PAKID HOLDINGS,
INC., a corporation; MALEK AGENCY LTD., a
corporation; QUELIMANE CO., a corporation;
MTG ALLIANCE CORP., a corporation;
HIGHLAND GROUP, INC., a corporation;
AND P.U. ENTERPRISES, a corporation;
Petitioners,
THE CALIFORNIA COASTAL COMMISSION,
Respondent.
¢
On Petition For Writ Of Certiorari
To The Supreme Court Of The State Of California
(California Supreme Court No. S061480; California
Court Of Appeal, Second Appellate District,
Division 2, Civ. No. B103320)
PETITION FOR WRIT OF CERTIORARI
¢
James H. FossinDeER
Counsel of Record for Petitioners
RHONDA M. FossInpDER
FosBINDER & FosBINDER
723 Ocean Front Walk
Venice, California 90291
(310) 396-1071/(310) 285-3019
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
1b PO
enn a TTT
QUESTION PRESENTED FOR REVIEW
Whether Petitioners’ First Amendment right to speak and
to petition the government for redress in a limited, non-
judicial public forum expressly designated for that pur-
pose by the California Code of Regulations, Section
13188(b), can be barred by the doctrine of ‘unclean
hands’, particularly when to allow such an exercise of
Petitioners’ rights would neither aid nor perpetuate any
illegal, immoral or otherwise wrongful activity but rather
could in fact alleviate the ‘unclean hands’ complained of
by Respondents?
ii
PARTIES TO THE PROCEEDING
The following, and no others, are parties to the
instant proceedings:
Petitioners Peter D. Bogart, Ojavan Investors, Inc.,
Port Lemoore Corporation, Sutton Properties, Inc., Sea-
lubber, Inc., Pakid Holdings, Inc., Malek Agency Ltd.,
Quelimane Co., MTG Alliance Corp., Highland Group,
Inc., and P.U. Enterprises, were the Petitioners for Writ of
Mandate in the Los Angeles Superior Court below, as
well as the Appellants before che Court of Appeal of the
State of California below, and the Petitioners for Review
to the Supreme Court of the State of California below.
None of the corporate petitioners have any parent or
subsidiary companies.
Respondent is the California Coastal Commission,
who was the Respondent and Appellee below. The Cali-
fornia Coastal Commission is a California state adminis-
trative agency vested with quasi-judicial powers and
supported in part by federal grants pursuant to 16 U.S.C.
§§ 1451, 1454 et seq.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ............ i
PARLE AO) ESI PRIS ois ioc ces eeawee et ii
Tee Se Se ir Ey ie ks Fhida KER Oe iii
pe SF Bg AP Gs 6s 6: SRI ere ene nee iv
PETITION FOR WRIT OF CERTIORARI............ 1
I. CITATIONS TO OPINIONS BELOW ......... 1
II. JURISDICTIONAL STATEMENT ............. 2
Ill. STATUTES INVOLVED IN THIS CASE....... 2
TV. STATEMENT OF THE CASE .......0.5..000%. 4
fi. PPORER SOIOREY 6 os. ca ccc ecescas 4
B. The Federal Issue Sought To Be
EF GtN SS Soy ce RAEN Rams 6 peeae io eee 6
Rak SNE OF BONIS 0k ocaw dos Wmeneiwaee ls 6
V. REASONS FOR GRANTING THE WRIT ..... 9
A. Summary of Argument .................. 9
B. Petitioners’ First Amendment Rights
Should Not Be Extinguished By The Dis-
cretionary Equitable Doctrine Of Unclean
Hands, And Petitioner Should Not Be Dis-
entitled From The State Agency’s Review
Process For His Contempt of Court In
PR PURE iis eka ov bec ey oe de) 5 500 12
ie: SE EE cc nah bah beac Ab dees beweee ens 19
Pas poe Ris ORES RPh eeEe Ema S bab S ee Ota es A-1
iv
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Degen v. United States, 116 S.Ct. 1777, 135 L.Ed.2d
102, 1996 U.S. LEXIS 3719 (1996)........... 46,:77,
Elrod v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96
Bie, 2608 (ON, os he a OO LS
Frank Adam Elec. Co. v. Westinghouse Elec. &
Mfg. Co., 146 F.2d 165 (8th Cir. 1945).............
General Leaseways, Inc. v. National Truck Leasing
Ass'n, 744 F.2d 588 (7th Cir. 1984)................
Hovey v. Elliot, 167 U.S. 409, 42 L.Ed. 215, 17 S.Ct.
BAL CBI iss aS Soh esd a
Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 88
Be. B36, GE SGC Ore CEO in x 5 nkk co's hsncas cays
Lawson v. Murray, 515 U.S. 1110, 132 L.Ed.2d 269,
SED DAR ee Ce, ewe ho eo 0 ik Vic eo has
Mississippi Gay Alliance v. Mosley, 536 F.2d 1073
BOIG) os is caiee Ge dwa a caW eek epee wrk ania wav’
Perma Life Mufflers, Inc. v. International Parts
Corp., 392 U.S. 134, 20 L.Ed.2d 982, 88 S.Ct.
TOR TENN oi iuree wo PEER IGEN 65 Cas aeRO Ras
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92
SCE Te, Se ae Bie TASTE ib se abi ee cecans
Roland Machinery Co. v. Dresset Industries, Inc.,
759 Tate ed CP A, DIB se 6 x90 is ivi eves voces
Shondel v. McDermott, 775 F.2d 859 (7th Cir.
SE ee CEN SKE WS eho 6a he 14,
Worden & Co. v. California Fig Syrup Co., 187 U.S.
916, 47 L.Ed. 282, 73 S.Ct. 161 (1903) ..... 0.66565
18
Vv
TABLE OF AUTHORITIES — Continued
Page
FEDERAL STATUTES
PRES AY ar) Sh b> pao Pa Ony anger ae ora arpa aig ok PPC Re CE ae 2
First Amendment to the United States Constitu-
CM yA Sep Cea Kete caress ceeh sc elaaenane seas passim
CALIFORNIA STATUTES
California Code of Regulations § 13188(b)....3, 4, 5, 11
Code of Civil Procedure § 1094.5 ............... 3, 4,9
Public Resources Code § 30801.................. 3, oo
OTHER AUTHORITIES
Note, The Highwayman’s Case, 35 L.Q. Rev. 197
ROE eck icra ck che wetins reruns s vite ensuhees 13
Prosser and Keeton on the Law of Torts, § 50, at p. 336
uh Grek ee oa vk eb oho Rare ea eer eee casos 13
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully seeks certiorari to review the
judgment and opinion of the Court of Appeal of the State
of California in the Second Appellate District, Petition for
Review having been denied by the Supreme Court of the
State of California, on the grounds that said decision as a
matter of law erroneously applies the doctrine of unclean
hands to disentitle Petitioners from the exercise of their
First Amendment rights under the United States Consti-
tution.
I,
CITATIONS TO OPINIONS BELOW
The Opinion of the Court of Appeals for the State of
California in the Second Appellate District was entered
on April 7, 1997, and is reproduced herein at Petitioners’
Appendix App. A-1. The Opinion was ordered
unpublished, and the Court of Appeals Docket No. was
2d Cir. B103320.
The Petition for Review was denied by the Supreme
Court of the State of California by Order entered July 9,
1997, Docket No. S061480, and said Order is reproduced
herein at Petitioners’ Appendix App. F-1. Remittitur was
entered on July 25, 1997, and the Notice of Remittur is
reproduced herein at Petitioners’ Appendix App. G-1.
The Judgment of the Los Angeles Superior Court
sustaining Respondent’s demurrer was entered on April
19, 1996, and is reproduced herein at Petitioners’ Appen-
dix App. A-1. The transcript of the proceedings before the
Superior Court, L.A.S.C. No. $S006369, is reproduced
herein at Petitioners’ Appendix App. C-1, and the veri-
fied Petition for Writ of Administrative Mandamus is
reproduced at Petitioners’ Appendix App. D-1. The
Application and Request to Modify, Rescind and cancel
the Cease and Desist Order, made to the Respondent
California Coastal Commission on September 13, 1995, is
reproduced herein at Petitioners’ Appendix App. E-1.
The separate Judgment of the Los Angeles Superior
Court under which Petitioner Bogart is charged with
contempt is also the subject of a Petition for Certiorari
before this Court, filed concurrently herewith.
Il.
JURISDICTIONAL STATEMENT
The final judgment denying review by the Supreme
Court of California was entered on July 9, 1997. Because
the highest court of the State of California has denied
further review and the instant action concerns the denial
of a fundamental federal constitutional right, jurisdiction
lies with this United States Supreme Court on Petition for
Writ of Certiorari pursuant to 28 U.S.C. § 1257.
Ill.
STATUTES INVOLVED IN THIS CASE
The constitutional provision involved in this action is
as follows:
The First Amendment to the United States Constitution:
Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exer-
cise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peace-
ably to assemble, and to petition the govern-
ment for a redress of grievances.
The statutory provision involved in this case are as
follows:
The California Code of Regulations, Title 14 § 13188(b):
§ 13188. Rescission or Modification of Cease and
Desist Orders.
1 Fears
(b) The [C]lommission, after public hearing,
may rescind or modify a cease and desist order
that it has issued. A proceeding for such a pur-
pose may be commenced by (1) any person to
whom the cease and desist order is directed, (2)
the executive director, or (3) any two members
of the [C]ommission. Upon receipt of a request
pursuant to this subsection (b) for rescission or
modification of a cease and desist order issued
by the Commission, a hearing on the request
shall be held at the next regularly scheduled
meeting or as soon thereafter as is practicable
after notice to all persons subject to the order or
whom the executive director otherwise has rea-
son to know would be interested in the matter.
California Public Resources Code § 30801:
Any aggrieved person shall have a right to judi-
cial review of any decision or action of the com-
mission for a writ of mandate in accordance
with Section 1094.5 of the Code of Civil Pro-
cedure, within 60 days after the decision or
action becomes final.
IV.
STATEMENT OF THE CASE
A. Procedural Summary
Petitioners are parties holding various interests in
certain vacant lands lying within the California Coastal
zone and which are thereby under the jurisdiction of the
Respondent, the California Coastal Commission [Joint
appendix (“JA”), pp. 002! Petitioners are subject to a
permanent cease-and-desist order issued by Respondent
on August 20, 1992, the first ever cease-and-desist order
issued under the Coastal Act. [JA p.002, 015] The Order
prohibits the sale, conveyance or transfer of any interest
in said properties unless there has been compliance with
certain terms and provisions of the Declarations of
Restrictions recorded against the properties, specifically
the recombination of 72 lots into just 2 large parcels. [JA
pp. 002, 015-037]
On September 13, 1995, pursuant to C.C.R.
§ 13188(b), Petitioners made a formal application to the
Coastal Commission to convene a hearing regarding the
modification, rescission and cancellation of the Order, a
request expressly allowed by the cease-and-desist order
itself. [JA pp. 004, 039-046; App. E-1]
1 As used throughout this brief, the designation “JA” refers
to the Joint Appendix filed with the Court of Appeals, which
constitutes the entire record in the Superior Court.
However, in a letter dated October 17, 1995, Respon-
dents refused to convene such a hearing, a refusal con-
firmed by a letter from Respondents to Petitioners dated
December 5, 1995. [JA pp. 004, 048-050, 054-056] Refusal
to hold a hearing upon request violates California Code
of Regulations, Title 14, § 13188(b). [JA pp. 048-056] Con-
sequently, Petitioners filed a Petition for Writ of Man-
damus pursuant to Code of Civil Procedure § 1094.5 and
Pub. Res. C § 30801. [JA p. 001]
On or about March 11, 1996, Respondents filed a
Notice of Demurrer and Demurrer to Petition [JA p. 078],
accompanied by a Request for Judicial Notice [JA p. 092]
and Motion for Sanctions. [JA p. 215] Petitioners opposed
the Demurrer and Request for Sanctions on March 25,
1996 [JA pp. 278, 297], to which Respondents’ filed reply
briefs on March 28, 1996 [JA pp. 306, 391], and on April
19, 1996, Respondent’s proposed judgment was signed
and entered as he final Judgment sustaining the demurrer
and granting the request for sanctions as to Petitioners
only. [JA p. 337]
The California Court of Appeals affirmed the lower
court’s decision with respect to just one of the four
grounds asserted by Respondent, namely that Petitioner’s
First Amendment claim of right to a bearing was barred
by the doctrine of unclean hands, inasmuch as Petitioner
is in contempt of a separate state appellate court judg-
ment ordering rescission of the transfer of the subject
properties. The Supreme Court of California denied fur-
ther review on July 9, 1997.
B. The Federal Issue Sought To Be Reviewed
Petitioners first raised the constitutional argument
that their right to a hearing before the California Coastal
Commission was guaranteed by the First Amendment,
and should not be barred by the doctrine of unclean
hands, at the oral argument at the hearing on Respon-
dent’s demurrer, which took place on April 2, 1996. This
is contained in the record at page 000374 of the “Repor-
ter’s Transcript” filed in the California Court of Appeal
on November 1, 1996, and is reproduced herein at Peti-
tioners’ Appendix App. C-5, 6.
That federal issue was then raised in Petitioners’
Opening Brief before the California Court of Appeal, and
constituted the sole issue raised on petition for review to
the California Supreme Court.
While each court below held that Petitioners’ action
was barred by the doctrine of unclean hands, none of the
courts below specifically addressed Petitioners’ First
Amendment argument, rejecting it by implication only.
See, Petitioners’ Appendix at App. A-1, B-1, C-1.
C. Statement of Facts
Petitioners are an individual and numerous corpora-
tions who were charged with violating the California
Coastal Act by purchasing and reselling 54 individual
parcels of land in the Santa Monica Mountains. [JA pp.
001, 015-039] This purchase and resale allegedly violated
the Coastal Act because the seller of the properties had
earlier entered into an agreement with the Coastal Com-
mission to deed restrict the properties so as to combine
the individual parcels into two larger parcels, in
exchange for another, unrelated individuals’ receipt of
building permits. [JA pp. 015-039] This was done as part
of the Coastal Commission’s “TDC” [Transfer Develop-
ment Credits] program. [JA pp. 015-039]
In being so charged with violation of the Coastal Act,
a cease-and-desist order was imposed against Petitioners
in August, 1992 [JA pp. 001, 015-039], an order which no
appellant has since violated. However, Petitioners did chal-
lenge the validity of the deed restrictions underlying the
cease-and-desist order, and the final judgment was in
favor of the Coastal Commission, on the ground that the
statute of limitations of challenging the deed restrictions
had run six months after the restrictions were initially
imposed. [JA pp. 062-065, 078-214] The issue of Peti-
tioners’ right to a hearing before the new panel of Coastal
Commissioners requesting modification of the cease-and-
desist order was not before that court, as only the issue of
the right to challenge the validity of the deed restrictions
was addressed in that earlier action. [JA pp. 062-065,
078-214]
In addition, the Coastal Commission countersued
Petitioners for fines and penalties under the Coastal Act,
and obtained a judgment in the amount of [presently] $15
million plus rescission of all of the property transactions.
[JA pp. 062-065,078-214] As the Court of Appeals noted in
their opinion at pp. 4-5, Petitioners’ right to a hearing
before the Commission based on changed circumstances
was not an issue in that case and there is thus no preclu-
sive effect on the instant action. [JA pp. 062-065, 078-214]
The issue presented to the Court of Appeals was
extremely narrow: Do Petitioners have a First Amend-
ment and statutory right to a hearing pursuant to the
California Code of Regulations regarding a request for
modification of the cease-and-desist order based on
changed circumstances? [JA pp. 001, 278, 297]
The Coastal Commission hearings provide a limited
public forum in which the applicants can bypass the
lawyers and speak directly to the Commissioners. [JA p.
052] Here, the Petitioners have never before attempted to
so address the Commissioners, and when they finally did
present an application for a hearing because they felt that
there were adequate changed circumstances to justify
such a hearing, the attorneys for the Coastal Commission
refused to allow it. [JA pp. 004, 039-046, 048-050, 054-056]
There can be no doubt that the Coastal Commission
has the power, and in fact, Petitioners contend, the duty,
to hear Petitioners’ request for modification under C.C.R.
§ 13188 [JA p. 052], and that they could in fact determine
that they, as opposed to the attorneys handling the litiga-
tion, no longer wished to enforce the cease-and-desist
order to the same extent as their predecessors did under
then existing circumstances. [JA pp. 015-037] It is never
too late for parties to litigation to attempt to resolve their
issues out of court. However, in the instant action Peti-
tioners cannot make it past the attorneys’ prosecuting this
action against them, who refuse to allow a hearing before
the new Commissioners. [JA pp. 048-050, 054-056]
V.
REASONS FOR GRANTING THE WRIT
A. Summary of Argument
The fact that Petitioners were found to have violated
the Coastal Act does not give the Coastal Commission
justification to disobey their own regulations or to tram-
ple Petitioners’ First Amendment rights. At issue here is
the Coastal Commission’s attorneys’ belligerent refusal to
allow Petitioners’ simple request to convene a statutory
public hearing before the Commissioners, so that the
Commissioners themselves can consider Petitioners’
arguments. Petitioners are not asking for predetermined
results from such a hearing, but rather seek only that this
Court order the Commission to hold the requested hear-
ing in the forum specifically dedicated for that purpose.
Administrative mandamus is the sole means of judi-
cial review of the decisions of quasi-judicial bodies, such ~
as the Coastal Commission. See, e.g., P.R.C. § 30801 [“Any
aggrieved person shall have a right to the judicial review
of any decision or action of the Commission by filing a
writ of mandate in accordance with Section 1094.5... ”]
Quasi-judicial decision-making bodies are frequently
asked to adjudicate claims of persons who have been
found to have committed some wrong related to the
subject of their hearing. For example, the prison-appeal
board has to decide grievances of criminals. Taking
Respondents argument to its logical conclusion, every
time the prison-board refuses to review an incarcerated
felon’s request for a hearing and this court is asked to
review that refusal in a mandamus proceeding, the board
10
can argue “unclean hands” by virtue of the felon’s crimi-
nal history and thereby avoid a parole hearing altogether.
Justice demands that state agencies carry out the law as
applicable to them, which includes conducting fair hear-
ings when mandated.
Moreover, Petitioners have never violated the cease-
and-desist order that is the subject of this action, and
therefore do not have “unclean hands” in relation to the
actual subject matter of this action. Judge Essegian speci-
fically found that Petitioners’ actions did not damage the
environment in any way, and that there is no history of
prior violations of the Coastal Act by Petitioner. In fact,
Petitioner Bogart was found in violation of the Coastal
Act simply because he was found to have had “construc-
tive knowledge” of the sale-restrictions, and was held
personally liable only as a discovery sanction. [JA
pp. 159-163]
On demurrer to Petitioners’ petition for administra-
tive mandamus and again on appeal, the Coastal Com-
mission argued that the Petitioners’ request for a hearing
to modify or rescind the cease-and-desist order 1) was
barred by the prior judgments, as a matter of res judicata;
2) that the commission had properly exercised its discre-
tion not to grant a hearing; 3) that the claim for relief was
moot, in light of the outstanding injunction; and 4) that
Petitioners were barred from mandamus by their unclean
hands. [Court of Appeals’ Decision, App. A-4]? The trial
2 The decision of the Court of Appeals contains a footnote
at this point which refers to “a copy of the commission’s points
and authorities below that is defaced with handwritten and in
one instance vulgar comments” Petitioners’ counsel is puzzled
11
court agreed with the Coastal Commission and dismissed
the entire action on demurrer.
The California Court of Appeals, however, rejected
each of these arguments by the Coastal Commission with
the exception of agreeing that the petition for mandamus,
and therefore the requested Coastal hearing, was barred
by the doctrine of unclean hands. The Court of Appeals
declined to determine whether or not title 14 of the
California Code of Regulations, Section 13188° mandates a
hearing whenever there are changed circumstances and
by this notation, as the copy of the Joint Appendix in counsel's
possession does not contain any “vulgar comment”, and if any
such comment was written on any of the five sets of documents
provided to the Court of Appeals, it was entirely inadvertent
and must have been on the “original” document used by a clerk
of Petitioners’ counsel while researching the instant action but
did not copy in the duplication process. Petitioners’ counsel was
certainly not aware of any such comment, and the only two
notations in counsels’ copy of the appendix are that the “attack
was on the permits”, in reference to the cease-and-desist order,
and the general comment that “the commission is not aware of
the facts”. While such comments certainly have no place in an
appendix of documents submitted to the court, it was purely a
clerical error when the appendix was compiled to use a notated
(but nonetheless entirely complete) document rather than a
clean copy, and counsel submits that such an error, consisting of
the accidental inclusion of notes made by an employee of
counsel’s, should not be allowed to reflect negatively on
Petitioners.
3 Title 14, Code of Federal Regulations, Section 13188,
Subdivision (b), states that modification or rescission must be
preceded by a public hearing, and that upon receipt of such a
request “a hearing on the request shall be held .. . ” (Italics
added.)
12
the party so requests. [Court of Appeals’ Decision, App.
A-6.]
In determining that the doctrine of unclean hands
barred Petitioners’ request for a hearing, the California
Court of Appeals did not address the core of Petitioners’
argument, that Petitioners’ First Amendment rights
should not be precluded by the doctrine of unclean
hands, particularly where, as here, the exercise of Peti-
tioners’ rights would neither aid nor perpetuate any ille-
gal, immoral or otherwise wrongful activity but rather
could in fact alleviate the “unclean hands” complained of :
by Respondents.
Petitioners thus seek review by this Supreme Court
on the issue of whether or not Petitioners’ First Amend-
ment right to a hearing before a limited public forum
designated for that purpose may be abridged by the state
agency’s belief that the speaker is undeserving of the use
of the forum, i.e., that the speaker has “unclean hands”
because of his violation of a court judgment ordering him
to rescind certain property sales and purchase transac-
tions.
B. Petitioners’ First Amendment Rights Should Not Be
Extinguished By The Discretionary Equitable Doc-
trine Of Unclean Hands, And Petitioner Should Not
Be Disentitled From The State Agency’s Review
Process For His Contempt of Court In Another
Action
It is indisputable that constitutional rights are given
great deference by the courts, and that First Amendment
rights to free speech and to petition the government for
iin iii
13
redress are considered fundamental, afforded the highest
of priority in any action requiring a balancing of interests
or otherwise. See, e.g., Mississippi Gay Alliance v. Mosley,
536 F.2d 1073 (1976), citing Police Dept. Of Chicago v.
Mosely, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
While in years past an action in equity meant the admin-
istration of justice according to the “free-wheeling ethical
discretion” of the evaluator, modern jurisprudence has
greatly restricted the “discretionary” nature of equitable
relief and requests for relief are evaluated according to
definite standards. See, Roland Machinery Co. v. Dresset
Industries, Inc., 749 F.2d 380, 382-88 (7th Cir. 1984).
Thus, the doctrine of unclean hands is properly
applied only when the equitable remedy would otherwise
encourage, or reward, illegal activity. E.g., Johnson v. Yel-
low Cab Transit Co., 321 U.S. 383, 88 L.Ed. 814, 64 S.Ct. 622
(1944), Everet v. Williams (Ex. 1725), reported in Note, The
Highwayman’s Case, 35 L.Q. Rev. 197 (1893), and briefly
discussed in Prosser and Keeton on the Law of Torts, § 50, at
p. 336 n.4 (5th ed. 1984). As stated by Judge Posner:
A common modern application of “unclean
hands” is to intellectual-property cases in which
an injunction is sought in aid of unlawful activ-
ity. If for example a plaintiff who had acquired a
patent in violation of antitrust limitations on
patent pooling brought a suit to enjoin another
from using the patent, the injunction would be
refused on the ground that awarding it would
assist in a violation of the antitrust laws. Frank
Adam Elec. Co. v. Westinghouse Elec. & Mfg. Co.,
146 F.2d 165 (8th Cir. 1945). Similarly, the owner
of a trademark that was itself misleading, such
as the trademark “Syrup of Figs” for a laxative
14
that was not in fact a syrup of figs, could not get
an injunction against the infringement of his
mark. Worden & Co. v. California Fig Syrup Co.,
187 U.S. 516, 528, 539-40, 47 L.Ed. 282, 23 S.Ct.
161 (1903). An injunction would protect his mis-
representation.
Shondel v. McDermott, 775 F.2d 859 (7th Cir. 1985).
In the instant action, Petitioners’ exercise of their free
speech and redress right before the California Coastal
Commission would in no way perpetuate any illegal
activity whatsoever, and rather than encouraging any
type of wrongdoing might actually cause a settlement of
certain issues in dispute between the parties. Petitioners
are not criminals, and should not be treated as such.
As the Court of Appeals noted, Petitioners’ request
for a hearing addresses the issue of lifting the cease-and-
desist order so as to allow future transactions [Court of
Appeals’ Decision, App. A-6], whereas Petitioners’ con-
tempt is for failure to comply with an injunctive order to
rescind past transactions, making the activities only tan-
gentially related.
As the Court of Appeals correctly held, there is no res
judicata, collateral estoppel, or mooting of the mandate
Petitioner by virtue of the injunction or any previous
court decisions, and that fact alone should defeat the
application of the doctrine of unclean hands to the instant
petition for writ of mandate: “Unless the courts insist on
a tight connection between the object of the injunction and
the misconduct of the plaintiff, suits for injunction will bog
down in all sorts of collateral inquiries.” Shondel v.
McCermott, 775 F.2d at 869.
15
Most importantly, however, is the fact that the activ-
ity Petitioners ask this Court to protect is First Amend-
ment activity. Judge Posner states the law most
eloquently:
The waiver by the Supreme Court in Elrod [Elrod
v. Burns, 427 U.S. 347, 49 L.Ed.2d 547, 96 S.Ct.
2673 (1976)] of proof of irreparable harm in pre-
liminary-injunction cases under the First
Amendment rests on the view that the balancing
of equities that is undertaken in a conventional
equity case is out of place in dealing with rights
so important as the modern Supreme Court con-
siders the rights of expression to be. Equitable
defenses such as unclean hands may also have
more limited play in free-speech cases then else-
where. There is an analogy to antitrust law,
where the Supreme Court has forbidden the rec-
ognition of a similar equitable defense — in pari
delicto (equally at fault) — in order to encourage
antitrust enforcement. Perma Life Mufflers, Inc. v.
International Parts Corp., 392 U.S. 134, 20 L.Ed.2d
982, 88 S.Ct. 1981 (1968). Last year this court
refused to apply the doctrine of unclean hands
in an antitrust case where the application of the
doctrine would have defeated the objectives of
antitrust law. General Leaseways, Inc. v. National
Truck Leasing Ass’n, 744 F.2d 588, 597 (7th Cir.
1984).
Shondel v. McDermott, 775 F.2d at 869-870.
Petitioners urge this Court not to allow the applica-
tion of the unclean hands doctrine to the instant circum-
stances, where Petitioners are merely attempting to be
allowed to exercise their first amendment rights to
address a governmental entity in the time, place and
16
manner specifically mandated by state statute for such an
address, and where Petitioners should not have been
required to apply to the courts to exercise that right in the
first place. In effect, the Commission’s refusal to convene
the requested hearing is a prior restraint on Petitioners’
speech, operating to suppress Petitioners’ speech solely
on the basis of their previous conduct. See, e.g., Lawson v.
Murray, 515 U.S. 1110, 132 L.Ed.2d 269, 115 S.Ct. 2264
(1995).
To allow the lawyers for Respondent California
Coastal Commission to deny Petitioners the exercise of
their first amendment rights, which are expressly pro-
tected by the Commission’s own regulations, so as to force
Petitioners into court to protect those rights via writ of
mandamus, which they holds that Petitioners are “equita-
bly” barred from any judicial consideration on the merits,
is simply hypocritical.
In essence, to bar Petitioner from a hearing under
this doctrine is to disentitle him not only from a court
hearing, but also from access to an appropriate non-
judicial forum, a Coastal Commission hearing. While the
courts have under certain circumstances been allowed to
disentitle fugitives from access to judicial protection, this
“disentitlement doctrine” has been severely criticized in
recent years by this Court as being excessive and unduly
harsh See, Degen v. United States, 116 S.Ct. 1777, 135
L.Ed.2d 102, 1996 U.S. LEXIS 3719 (1996).
Justice Kennedy delivered the opinion in Degen:
Without resolving whether Degen is a fugitive
in all the senses of the word debated by the
17
parties, we acknowledge disquiet at the specta-
cle of a criminal defendant reposing in Switzer-
land, beyond the reach of our criminal courts,
while at the same time mailing papers to the
court in a related civil action and expecting
them to be honored. [citation omitted] A court-
made rule striking Degen’s claims and entering
summary judgment against him as a sanction,
however, would be an arbitrary response to the
conduct it is supposed to redress or discourage.
The right of a citizen to defend his property
against attack in a court is corollary to the plain-
tiff’s right to sue there. [citation omitted] For
this reason we have held it unconstitutional to
use disentitlement similar to this as punishment
for rebellion and the United States, or, in at least
one instance, for contempt of court. [citation
omitted]
Degen v. United States, 116 S.Ct. 1777, 1996 U.S. LEXIS
749): "iS.
In Degen, the Petitioner was a fugitive from a crimi-
nal proceeding, taking advantage of Switzerland's i efusal
to extradite to the United States. In a civil forfeiture
proceeding, the lower courts struck his answer and
defenses, granting summary judgment against him, on
the grounds that his fugitive status disentitled him from
participating in any court proceedings at all. This
Supreme Court reversed, holding that a court’s dignity
and “respect is eroded, not enhanced, by excessive
recourse to rules foreclosing consideration of claims on
the merits.” Degen v. United States, 116 S.Ct. 1777, 135
L.Ed.2d 102, 1996 U.S. LEXIS 3710 (1996).
18
Here, Petitioner has been held in contempt of a judg-
ment arising out of a court proceeding related to the
instant action only in that both pertain to properties
purchased and, in some cases, resold by corporations in
which Petitioner is an officer. Not only has this Court at
least once held that the fugitive disentitlement doctrine
should not apply in contempt of court cases, Hovey v.
Elliot, 167 U.S. 409, 413-414, 42 L.Ed. 215, 17 S.Ct. 841
(1897), but, as in Degen, the extra-judicial proceeding
from which Petitioner is barred is only tangentially
related to the court judgment of which he is held in
contempt and which he is presently appealing to this
Court.
Because the only issue presented herein is whether
Petitioner has a right to address the California Coastal
Commission directly in an attempt to have the cease-and-
desist order modified or rescinded, there is no danger
that the court’s time will be wasted on an unenforceable
judgment.
Finally, because the outcome of the hearing could
result in an out-of-court resolution of the issues between
the Petitioners and the Coastal Commission, there can be
no harm in letting Petitioners exercise their First Amend-
ment rights in an attempt, however ill fated, to have the
actual Coastal Commissioners (rather than the Commis-
sion’s lawyers) reconsider the outstanding cease-and-des-
ist order.
NINE FRIES PRT rey ee vt
19
VI.
CONCLUSION
Because the California state courts below have
applied the unclean hands doctrine against Petitioner
without considering Petitioners’ First Amendment rights
to free speech and to petition to government for redress,
and allowed the state agency Respondent to prevent its
citizens from addressing the agency in the time, place and
manner specifically designated for such speech by the
agency’s own regulations, Petitioners respectfully pray
that this Court grant certiorari.
DATED: October 7, 1997
Respectfully submitted,
James H. Fossinper
Counsel of Record for
Petitioners
RHONDA M. FossinDER
FosBINDER & -FosBINDER
723 Ocean Front Walk
Venice, California 90291
(310) 396-1071/(310) 285-3019
Attorneys for Petitioners
INDEX TO APPENDIX
Opinion, California Court of Appeal (April 8,
EES EE SELES Ss a ae
Judgment re: Dismissal and Sanctions, Superior
Court of the State of California (April 19, 1996) ...
Transcript of Demurrer Proceedings, Superior
Court of the State of California (April 2, 1996)...
Verified Petition for Administrative Mandamus,
Superior Court of the State of California
EE Ie ee
Application and Request to Modify, Rescind and
Cancel “Cease and Desist Order 92-1-CD-1” and
to Convene a Hearing (CCR 13188) (Sept. 13,
Ss oS iene
Denial of Petition for Review, Supreme Court of
the State of California (July 9, 1997)...........
Remittur Notice, California Court of Appeal (July
eek FA wk dine ¢:5 0 <n es oes ease «
A-1
APPENDIX A
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PETER D. BOGART et al.,)
Plaintiffs and )
Appellants, B103320
Vv ) (Super. Ct. No.
‘ SS006369)
CALIFORNIA COASTAL ;
COMMISSION ) (Filed Apr. 28, 1997)
)
Defendant and )
Respondent. )
)
Peter D. Bogart and his affiliated corporations appeal
from the judgment, following demurrer, denying their
petition for writ of mandate, which sought to require
defendant California Coastal Commission (commission)
to hold a hearing on a request to modify or rescind a
cease and desist order. We affirm.
FACTS
As supplemented by court records of which the trial
court properly took judicial notice, the petition below
reflected the following. In 1992 the commission entered a
cease and desist order against plaintiffs (Pub. Res. Code,
§ 30810), requiring them not to sell or transfer certain lots
A-2
in Malibu without fully complying with certain previ-
ously recorded restrictions. The background of this order
is described in our prior decision which affirmed the
dismissal of two lawsuits by which plaintiffs challenged
it. (Ojavan Investors, Inc. v. California Coastal Com. (1994)
26 Cal.App.4th 516 (Ojavan).)
In brief, in 1979 and 1980 the commission issued
development permits to two landowners, conditioned on
their extinguishing residential development rights on
other properties (so-called transfer of development
credits). The permittees accordingly contracted with two
other landowners, for consideration, to file declarations
of restrictions consolidating the lots on their properties
with respect to sale, development, and other elements. In
1991, however, plaintiffs purchased from one of those
landowners 49 of the former lots, and proceeded to sell 16
of them to third parties, in violation of the restrictions.
The commission responded with the cease and desist
order. The order provided that it “shall remain in effect
permanently unless and until rescinded by the Commis-
sion.”
In a third superior court action by plaintiffs (Ojavan
II), the commission cross-complained for relief with
respect to the completed sales of the restricted lots. The
commission for relief with respect to the completed sales
of the restricted lots. The commission prevailed, and the
court entered judgment imposing civil fines totaling
nearly $10 million. Having found that Bogart was the
alter ego of the corporate plaintiffs, the court further
enjoined him to rescind the illegal lot sales. (The land-
owner who had sold plaintiffs the lots also was enjoined
A-3
to rescind that transaction, following Bogart’s reacquisi-
tion of the lots.) Plaintiffs appealed, and the appeal was
argued and submitted on January 16, 1997. (Ojavan Inves-
tors, Inc. v. California Coastal Com. B089152.)
In the interim, plaintiffs refused to comply with the
injunction requiring rescission, and were held in civil
contempt. In successive proceedings, each preceded by a
further period of noncompliance, the court fined plain-
tiffs $55,000, which was not paid, imposed house arrest
on Bogart, and then ordered him committed to county jail
(Code Civ. Proc., § 1219). Bogart’s petitions for habeas
corpus to the superior court and Court of Appeal were
denied, and the Supreme Court denied review. A further,
federal habeas petition also was denied. However, Bogart
apparently evaded custody, as a fugitive.
In September 1995, plaintiffs filed with the commis-
sion an application and request “to modify, rescind and
cancel” the cease and desist order, including a request for
a hearing, as provided for by Title 14, California Code of
Regulations, section 13188, subdivision (b)(§ 13188).!
1 The subdivision provides in relevant part: “The
commission, after public hearing, may rescind or modify a cease
and desist order that it has issued. A proceeding for such a
purpose may be commenced by (1) any person to whom the
cease and desist order is directed. . .. Upon receipt of a request
pursuant to this subsection (b) for rescission or modification of
a cease and desist order issued by the commission, a hearing on
the request shall be held at the next regularly scheduled
meeting or as soon thereafter as is practicable after notice to all
persons subject to the order or whom the executive director
otherwise has reason to know would be interested in the
matter.”
A-4
Plaintiffs’ application for rescission cited as changed con-
ditions the reduction, by “retirement,” of land available
for affordable housing in the area of the restricted lots,
which plaintiffs characterized as suitable for that pur-
pose. Plaintiffs also asserted certain legal arguments
against the cease and desist order and the underlying
restrictions, which had already been rejected in Ojavan,
supra, 26 Cal.App.4th 516. By letter from its counsel, the
commission rejected the application, without holding a
hearing, essentially on grounds it was precluded by the
judgments in the prior cases between the parties.
Plaintiffs then filed the instant petition for writ of
mandate, praying that the commission be required to
hold a hearing on their application of rescission. The
commission generally demurred to the petition, on four
grounds: (1) that it was barred by the prior judgments, as
a matter of res judicata; (2) that the commission had
properly exercised its discretion not to grant a hearing;
(3) that the claim for relief was moot, in light of the
outstanding injunction; and (4) that plaintiffs were barred
from mandamus by their unclean hands. The trial court
sustained the demurrer, without leave to amend, on all
four grounds. It then entered judgment dismissing the
proceeding, and imposing $1,127 in sanctions on plain-
tiffs, pursuant to Code of Civil Procedure section 128.7.2
2 Plaintiffs do not argue the issue of sanctions apart from
contending that the ruling on the demurrer was erroneous.
A-5
DISCUSSION
The parties revisit the four grounds on which the
trial court decided the matter. We examine each.
Plaintiffs’ petition was not shown to be barred by res
judicata. The prior judgments in Ojavan and Ojavan II did
establish the validity of the cease and desist order and the
underlying restrictions, and the illegality of plaintiffs’
sales in violation of those restrictions. But the present
proceeding concerns a different subject matter and “pri-
mary right,” namely the commission’s denial without a
hearing of plaintiffs’ administrative application for rescis-
sion. Plaintiffs’ present cause of action arose only with
the summary rejection of their application in late 1995.
The record reflects that in 1994 plaintiffs did file, in
Ventura County Superior Court, another petition for writ
of mandate, to compel the commission to afford a hearing
on an earlier application to rescind the cease and desist
order. The commission prevailed on that petition. That
judgment, however, also does not constitute res judicata
with respect to the present petition and its denial. Neither
of them could have been asserted in the Ventura action,
because neither had yet occurred.
The contention that the present petition was “moot,”
because rescission of the cease and desist order would
3 Conceivably, the Ventura judgment might have created a
collateral estoppel with respect to the general issue of the
commission’s responsibility to afford a hearing under section
13188. But there is no showing that that issue was actually
decided by the judgment. Indeed, the court’s ruling was based,
at least in part, on jurisdiction.
A-6
not release plaintiffs from the injunctive restraints
imposed in Ojavan II, does not follow. The injunction
requires rescission of accomplished lot sales. The cease
and desist order prohibits future lot sales. That plaintiffs
are presently required by injunction to unwind their prior
sales does not preclude them from obtaining effective
relief from the cease and desist order’s restraint against
other sales.
The commission’s position that section 13188 does
not mandate a hearing on a request to rescind a cease and
desist order is more troublesome. On its face, the regula-
tion states that modification or rescission must be pre-
ceded by a public hearing, and that upon receipt of such a
request “a hearing on the request shall be held... . ”
(Italics added.) The commission contends, however, that
this language should be construed to incorporate a pre-
condition that the request for rescission genuinely show
changed circumstances, “such that a new hearing does
not result in a re-hashing of failed arguments.” Other-
wise, the commission contends, it would be “harassed by
repeated requests for rehearing.”
We agree that modification or rescission of a cease
and desist order, like modification or dissolution of a
judicial injunction, should depend upon a showing of
changed circumstances. (Cf. Civ. Code, § 3424, subd. (a).)
And certainly, a hearing on a request for such relief is not
the proper forum for a retrospective request for “rehear-
ing” of the original decision. On the other hand, the
commission’s prediction of disarray if hearings were
allowed on meritless applications is less convincing. The
commission is capable of controlling the order and rele-
vance of proceedings before it, without dispensing
nei i a ia at
A-7
entirely with the hearing apparently required by section
13188.4 Moreover, the commission’s proposed interpreta-
tion of the regulation would require courts — including
this one, presently — to review the sufficiency of the
application without completion of administrative pro-
ceedings and a fully informative record. The result could
well be two burdensome rounds of judicial review of an
application’s disposition.
We need not, however, resolve the issue of whether a
hearing is always required under section 13188. For we
conclude that the trial court was justified in dismissing
this proceeding on the final ground tendered, plaintiffs’
unclean hands.
Unclean hands is an equitable doctrine that bars
relief to a litigant “who has violated conscience, good
faith or other equitable principles in his prior conduct.”
(Fibreboard Paper Products Corp. v. East Bay Union of Machi-
nists (1964) 227 Cal.App.2d 675, 727.) The doctrine has
long been held applicable to proceedings for extraordin-
ary writs, including writs of mandate. (8 Witkin, Cal.
Procedure (3d ed. 1985) Extraordinary Writs, § 137, p.
778.) For example, in Funfar v. Superior Court (1930) 107
Cal.App. 488, a petition for writs of prohibition and man-
date against the superior court was denied, on demurrer,
because the petitioner was guilty of disobedience of a
decree of the court in the same action, amounting to
contempt. We stated that a party cannot seek the aid of a
4 The record indicates that the instant cease and desist
order was the first ever issued by the commission under Public
Resources Code section 30810. How many more such orders are
outstanding has not been shown.
A-8
court “while he stands in an attitude of contempt to its
legal orders and processes” (id. at p. 490), and therefore
that the petitioner could not “invoke the process of this
court so long as he thus continues to be in contempt of
the superior court.” (Id. at p. 491.)
Here, similarly, plaintiffs violated the superior
court’s injunction in Ojavan II, and were found in con-
tempt for it. There is no indication that they have purged
themselves of that contempt, or had done so at the time
of the ruling below. While occupying that position with
respect to the superior court’s directive to rectify their
violations that engendered the cease and desist order,
plaintiffs were equitably disentitled to seek relief from
that court with regard to that order.
Plaintiffs contend that their disobedience and con-
tempt should be viewed merely as a means for challeng-
ing the validity of the injunction by habeas corpus. (See 6
Witkin, Cal. Procedure, supra, Provisional Remedies,
§§ 329-330, pp. 277-280.) But in fact, Bogart’s California
habeas corpus proceedings were concluded, and the val-
idity of the injunction to that extent upheld, before plain-
tiffs commenced the present proceeding. The trial court
properly denied the petition for writ of mandate on the
basis of unclean hands.5
5 The joint appendix in this appeal includes a copy-of the
commission’s points and authorities below that is defaced with
handwritten and in one instance vulgar comments. Only by
grace has this violation not resulted in sanctions against the
counsel and parties responsible. (See Cal. Rules of Court, rule
5.1(i)(1).)
A-9
DISPOSITION
The judgment is affirmed.
NOT FOR PUBLICATION.
/s/ Fukuto, J.
FUKUTO
We concur:
/s/ Boren, P.J.
BOREN
/s/ Nott, J.
NOTT
B-1
APPENDIX B
DANIEL E. LUNGREN, Attorney General
of the State of California
JAN S. STEVENS,
Assistant Attorney General
G. R. OVERTON (Bar #67057),
DANIEL A. OLIVAS (Bar #130405),
Deputy Attorneys General
300 South Spring Street, Suite 5212
Los Angeles, California 90013
Telephone: (213) 897-2705
Attorneys for Respondent
CALIFORNIA COASTAL COMMISSION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PETER D. BOGART, etc.,
et al.,
Petitioners,
Vv.
CALIFORNIA COASTAL
COMMISSION,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. SS006369
[PROPOSED] JUDGMENT
RE DISMISSAL AND
SANCTIONS
(Filed Apr. 19, 1996)
DATE: April 2, 1996
TIME: 1:30 p.m.
PLACE: Dept. B
TRIAL DATE: None
DISCOVERY
CUT-OFF: None
MOTION CUT-OFF: None
B-2
On April 2, 1996, at 1:30 p.m., in Department B of this
Court, located at 1725 Main Street, Santa Monica, Califor-
nia 90401, the Hon. Alan B. Haber presiding, Respondent
California Coastal Commission’s (“Coastal Commission”)
general demurrer, request for judicial notice in support of
the demurrer, and motion for sanctions came on regularly
for hearing. California Deputy Attorney General Daniel
A. Olivas appeared on behalf of the Coastal Commission.
James Fosbinder, Esq. of the firm of Fosbinder & Fos-
binder appeared on behalf of Petitioners Peter D. Bogart,
Ojavan Investors, Inc., Port Lemoore Corporation, Sutton
Properties, Inc., Sealubber, Inc., Pakid Agency Ltd., Quel-
imane Corp., Highland Group, Inc., and P. U. Enterprises
(“Petitioners”).
Upon due consideration of the demurrer, request for
judicial notice, and request for sanctions, and any opposi-
tion raised by Petitioners, and having ordered dismissal
with prejudice of the petition and having ordered the
imposition of sanctions as against Petitioners,
IT Is ORDERED, ADJUDGED AND DECREED THAT
1. With respect to the Coastal Commission’s request
for judicial notice pursuant to Evidence Code section 452,
which was not opposed by Petitioners, the Court grants
the request and therefore, considers the judicially noticed
court documents in conjunction with the Coastal Com-
mission’s general demurrer.
2. The Court sustains the Coastal Commission’s
general demurrer without leave to amend because the
petition does not state facts sufficient to constitute a
cause of action. The Court finds that Petitioners cannot
B-3
cure the pleading defects through amendment, and Peti-
tioners have not suggested any manner by which their
petition could be amended to state a cause of action. The
general demurrer is sustained without leave to amend
because: the petition is barred by the doctrine of res
judicata; the petition is moot; Petitioners have unclean
hands; and California Code of Regulations section 13188,
subdivision (b) is not mandatory.
3. With respect to the Coastal Commission’s motion
for sanctions, the Court grants the motion as to Peti-
tioners in the amount of $1127.00 to be made payable to
the Coastal Commission within twenty (20) days of April
2, 1996, the date the Court ordered dismissal with preju-
dice of this action. The Court also finds that the Coastal
Commission has met the “safe harbor” requirements of
Code of Civil Procedure section 128.7. The Court finds
that the petition is frivolous and filed for an improper
purpose (as defined by Code of Civil Procedure section
128.7) for the following reasons: (a) this action represents
the sixth unsuccessful lawsuit filed by Petitioners against
the Coastal Commission challenging the Coastal Commis-
sion’s enforcement of Declarations of Restrictions
recorded on the subject real property pursuant to prior
coastal development permits; (b) before and after the
instant action was filed, the Coastal Commission
informed Petitioners in writing that the action was barred
for various reasons including res judicata by virtue of the
related decision of Ojavan Investors, Inc. v. California
Coastal Com. (1994) 26 Cal.App.4th 516, cert. denied (1995)
__._:;U'S. __, 115 S.Ct. 1097, 130 L.Ed.2d 1065; and (c)
despite two written warnings from the Coastal Commis-
sion that the Commission would seek relief under Code
B-4
of Civil Procedure section 128.7 if Petitioners refused to
dismiss voluntarily th.s action. Petitioners refused to do
so.
DATE: APR 13 1996
JUDGE ALAN B. HABER
HON. ALAN B. HABER
JUDGE OF THE SUPERIOR
COURT
C-1
APPENDIX C
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Se ee
DEPARTMENT WE B JUDGE ALAN B. HABER
PETER D. BOGART, etc., et al., ) | No. SS 006 369
Plaintiffs,
vs. )
CALIFORNIA COASTAL )
COMMISSION, )
Defendant.
)
TRANSCRIPT OF PROCEEDINGS
April 2, 1996
APPEARANCES:
For the Plaintiffs: JAMES H. FOSBINDER, ESQUIRE
Fosbinder & Fosbinder
721 Ocean Front Walk
Venice, California 90291
(310) 396-1071/(310) 285-3019
For the Defendant: | DANIEL A. OLIVAS, ESQUIRE |
State of California |
Department of Justice
Office of the Attorney General
500 South Spring Street
Suite 500
Los Angeles, California 90013
(213) 897-2705
Courtroom Recorder: Tamara Bollinger
pereeneminieieinisiciiiiiaaiesiiiiiiiliiiiia
C-2
Transcription Briggs Reporting Company, Inc.
Company: 8000 Kenyon Avenue
Los Angeles, California 90045
(310) 410-4151
[p. 1] LOS ANGELES, CALIFORNIA; TUESDAY,
APRIL 2, 1996
DEPARTMENT WE B JUDGE ALAN B. HABER
APPEARANCES:
Counsel for the Plaintiffs, JAMES FOSBINDER, Esq.;
counsel for the Defendant, DANIEL OLIVAS, Esq.
THE COURT: Number 32, Bogart versus Cali-
fornia Coastal Commission.
MR. OLIVAS: Good afternoon, your Honor.
Daniel A. Olivas, Deputy Attorney General, on behalf of
moving party, Coastal Commission.
MR. FOSBINDER: Good afternoon, your Honor,
James Fosbinder appearing on behalf of Mr. Bogart.
THE COURT: All right. Anything not in the
written materials that you want me to consider?
MR. OLIVAS: No, your Honor.
MR. FOSBINDER: Yes, your Honor.
THE COURT: What's not in there that you want
me to consider?
MR. FOSBINDER: Well, first of all, I’m at a loss
as to why the Court finds this to be frivolous. The law
that — the law clearly -
C-3
THE COURT: Well, first of all, what you’re
really telling me in different words is that you don’t agree
with the tentative ruling, and that’s certainly fair.
MR. FOSBINDER: I think it’s something that
hasn’t been addressed previously in the papers, and I’ve
looked through them today.
THE COURT: Yes?
[p. 2] MR. FOSBINDER: Everything that’s gone
before involved an attempt by Mr. Bogart to say that the
Coastal Commission could not do something. What Mr.
Bogart asked us was whether or not he had the right -
THE COURT: Asked who?
MR. FOSBINDER: Excuse me?
THE COURT: Asked who? You said, “us,” I
don’t know who “us” means.
MR. FOSBINDER: The law firm.
THE COURT: Yes.
MR. FOSBINDER: And some other lawyers.
And we consulted with Mr. Borbeau (phonetic) from Bos-
ton.
THE COURT: Now, please, let’s not -
MR. FOSBINDER: We talked to the lawyers.
The point here is that -
THE COURT: You talked to a Boston lawyer
about an issue involving the California Coastal Commis-
sion?
eeteereneeeeneeieaiaaeiiaiieiiiiaiiaiaiiiiiaisaaiaaiadiniiiaiiiidiad
C-4
MR. FOSBINDER: Indeed we did.
THE COURT: All right. That’s interesting.
MR. FOSBINDER: The point here is that all of
the previous proceedings involve Mr. Bogart attempting
to say that the Coastal Commission could not do some-
thing.
THE COURT: Right.
MR. FOSBINDER: He asked whether or not he
had the right to go back to the Coastal Commission to
give them reasons why they should not, even if they had
the right to do it. And that’s what we’re attempting to do,
to present reasons why the coastal commission should
not do what the [p. 3] courts have clearly indicated that
they have the power to do at this point.
As I read the statute it says that if you ask for a
hearing, you’re entitled to it. And we’ve asked for it. And
we're not going back to say that you can’t do this, we’re
going back to give reasons why they should not do it.
THE COURT: What's your -
MR. FOSBINDER: Policy reasons, reasons of
practicality and reasons that benefit everyone. And we’re
asking to do that, except that it doesn’t seem as though
we have to ask, it seems as though we’re allowed to do
that as a matter of right.
THE COURT: Well, certainly, no one quarrels
with your right to seek equitable relief. The question is
really with respect to the issue of why did I in my
tentative indicate that I feel that the petition was frivo-
lous? What you’re really addressing, and the question
C-5
really is, the wisdom of seeking the relief under — seeking
equitable relief under all of the circumstances.
MR. FOSBINDER: Yes, your Honor.
THE COURT: And I've tried my best without
going into page after page of a tentative ruling, to indi-
cate a number of the reasons why I came to the conclu-
sion that, one, the petition deserves to be - have a demur
sustained without leave to amend. And furthermore, it
wasn’t my idea, it’s the state’s idea to seek sanctions for
the filing of a — what they consider to be a frivolous
lawsuit.
All I can tell you is that they make a very [p. 4]
compelling presentation to justify the imposition of sanc-
tions. And I'll be happy to reiterate. I’m going to have to
make a record in any event.
But, before I do that, is there anything else that you
want me to consider?
MR. FOSBINDER: Yes, your Honor. The right to
petition the government for grievances is a first amend-
ment right.
THE COURT: No one is taking away -
MR. FOSBINDER: Mr. Bogart is not coming >
here demanding - I’m sorry. If you want to interrupt me,
you obviously may.
THE COURT: Do I want to what? Do I want to
what?
MR. FOSBINDER: I was -
C-6
THE COURT: What did you just say? Do I have
to have it read back?
MR. FOSBINDER: No. No. I was deferring. I
said if you want to interrupt, go ahead. I’d rather hear
what you were going to say, rather than be responding to
something that you weren’t interested in.
THE COURT: Anything further?
MR. FOSBINDER: Yes. It’s a first amendment
right to petition the right of government.
THE COURT: Yes. Thank you. I need to be
reminded that there is a first amendment, right?
MR. FOSBINDER: All we’re trying to do is to
do that. To ask that the Coastal Commission listen to him,
which is provided specifically in the state statutes that
that’s a right, not even a privilege.
[p. 5] THE COURT: What you're suggesting is
that it would be error for any court to impose sanctions
under 128.7, or if appropriate, 128.5 where someone files
a frivolous lawsuit.
MR. FOSBINDER: No, your Honor.
THE COURT: And the defense is that after all
the party was exercising his or her right to petition the
government for grievances. I mean, there are limitations
on the exercise of one’s right.
MR. FOSBINDER: Yes. And I do believe that to
be true. However, I think that, for instance, if Mr. Bogart
were coming back to the Coastal Commission for the 50th
time to have a new hearing to bring forward facts as to
C-7
why they should change their mind, at that point, and
probably well before that point, it would be appropriate
to do this. This is the first time that Mr. Bogart has come
to the correct court to ask -
THE COURT: That’s an interesting qualifica-
tion, isn’t it? In view of the fact -
MR. FOSBINDER: I did not -
THE COURT: How many other courts has he
been before, and how extensive is the res judicata effect
of at least two court decisions, that I can think of.
MR. FOSBINDER: There’s only -
THE COURT: Not to mention the issue of
whether or not he has, in the sense - in the equitable
sense of the word, whether he has clean hands.
MR. FOSBINDER: If I may, your Honor. There’s
only one court decision which has a res judicata effect.
And that [p. 6] would be -
THE COURT: That's enough.
MR. OLIVAS: And that’s false, your Honor.
MR. FOSBINDER: That has nothing to do with
what we’re asking here.
THE COURT: All right.
MR. FOSBINDER: We’re not asking whether or
not the Court will insist that they do something. We’re
asking whether or not the Court will insist that they
listen to Mr. Bogart, according to the state statute. And I
am completely sincere in that. I have gone to several
other lawyers -
icine |
C-8
THE COURT: I’m not questioning - Look, don’t
tell me about a Boston lawyer rendering advice on the
California Coastal Commission. I’m not liable to be
impressed.
MR. FOSBINDER: Gideon Canter (phonetic),
one of the leading experts on property right litigation,
who’s had great success. And the Supreme Court is one
of the lawyers we consulted with -
MR. OLIVAS: Gideon Canter lost in our case.
THE COURT: It’s not your turn yet.
MR. OLIVAS: I apologize, your Honor.
THE COURT: You'll have an opportunity, I
won't forget about you.
MR. OLIVAS: I apologize, your Honor.
THE COURT: All right. Yes?
MR. FOSBINDER: The point here is that could
the Coastal Commission change its cease and desist order
on its own. Obviously, the commissioners would have
that right. [p. 7] If they have that right, why don’t we
have the right, as the state statute says, to go and ask
them to do that.
THE COURT: I understand the question that
you raise. Would you like to be heard?
MR. OLIVAS: Yes, your Honor. First of all, Mr.
Fosbinder believes that this code section of the adminis-
trative code does away with res judicata, mootness and
unclean hands doctrines. It does not, number one.
C-9
Number two, aside from the published case, they
filed a suit in Ventura under this code section.
MR. FOSBINDER: I did not.
THE COURT: Excuse me. He was referring not
to you personally, but to your client, Mr. Bogart.
MR. FOSBINDER: I understand.
MR. OLIVAS: Precisely, your Honor.
Under this code section, and there was a hearing on
the merits, and that case was dismissed, and sanctions
were imposed against Mr. Bogart and his other counsel.
That suit was never appealed by Mr. Bogart. Accordingly,
we have two cases -—
THE COURT: That’s final. I realize that.
MR. FOSBINDER: _ If I may, your Honor?
THE COURT: Yes.
MR. FOSBINDER: The decision in Ventura said
that it’s dismissed because Los Angeles Superior Court
has exclusive concurrent jurisdiction over this matter. It
was not a hearing on the merits. He said, “You're in the
wrong place. Go away.” By virtue of the fact he decided
that they were [p. 8] in the wrong place, he couldn’t
possibly have made a decision on the merits. That would
be impossible.
THE COURT: Well, I don’t see that the Ventura
case really — if you'll notice in my tentative ruling, it
really doesn’t factor into the equation at all.
MR. FOSBINDER: I understand.
C-10
THE COURT: I mean, it was certainly argued
extensively, more than once by the attorney general in his
moving papers. But, I really didn’t know what to make of
it. It had the feeling of a finality, but I couldn’t be sure
how it came to pass. But, it’s really not critical. What’s
critical is the published BCA opinion that one has a res
judicata effect. Two, the matter of clean hands, the evi-
dence is clear.
Didn’t the Coastal Commission obtain a permanent
injunction requiring Mr. Bogart to —
MR. OLIVAS: Which is —
THE COURT: Excuse me. Let me just finish the
sentence, it’s a question. Isn’t there a mandatory — an
injunction mandating that Bogart, the Plaintiff, refund the
purchase price to the persons that he sold the property
to?
MR. OLIVAS: Yes, your Honor. And it’s fully
enforceable, and a bench warrant for Mr. Bogart’s arrest
is currently out for his contempt of court.
Judge Ruth Esigeon issued that order. As your papers
show, there are three contempt orders against Mr. Bogart.
That judgment - that injunction is not stayed. They never
posted a bond.
[p. 9] MR. FOSBINDER: All of that -
THE COURT: Excuse me a minute. What are the
amounts of outstanding fines that Bogart allegedly hasn’t
paid?
C-11
MR. OLIVAS: At the - Well, that’s not part of
the contempt, your Honor. In terms of the restitution to
the -
THE COURT: Yes.
MR. OLIVAS: The restitution?
THE COURT: Yes.
MR. OLIVAS: It’s about $100,000.
MR. FOSBINDER: In order to stay it, he would
have had to posted $14,000,000.
THE COURT: So?
MR. FOSBINDER: That’s not the point. The
point is, it’s on appeal. There is no res judicata effect from
that decision whatsoever. The only part that there is res
judicata effect upon is the original dismissal of Mr.
Bogart’s complaint against the Coastal Commission on
whether or not they had the legal right to enforce the
deed restrictions. That’s the only thing that’s been
resolved permanently which has a res judicata or collat-
eral estoppel effect. There is no res judicata or collateral
estoppel effect if a matter is on appeal.
MR. OLIVAS: But, Mr. Fosbinder is mixing
apples and oranges. With respect to the permanent
injunction that goes to our mootness argument. That even
if the Commission rescinded its order, we have an injunc-
tion, which is being enforced by Judge Ruth Esigeon.
That’s a separate order.
MR. FOSBINDER: Can I -
[p. 10] THE COURT: Excuse me.
C-12
MR. OLIVAS: And that is currently enforceable
by contempt judgment, your Honor.
In terms of res judicata, that goes to legality of the
deed restrictions and the C&D order.
MR. FOSBINDER: If I may reply very briefly to
that?
THE COURT: Yes.
MR. FOSBINDER: With regard to the — That's
okay. The deed - The last point he made, I’m sorry. I’m
upset. Every time I represent Mr. Bogart, all I hear about
is sanctions. It doesn’t happen anywhere else with any
other client.
THE COURT: I’ve had Bogart as a party before
me before. I don’t recall imposing any sanctions before.
And if I had, I certainly don’t -
MR. FOSBINDER: I recall my point. If I may?
THE COURT: Pardon?
MR. FOSBINDER: I recall my point. Thank you
for giving me a second there.
The argument here is that this is totally moot. There’s
no point to having the Coastal Commission hear this plea,
if you will, to rescind or change the order. It’s simply not
true.
Obviously the coastal commissioners, eight of which
are new, were to change their minds, then we could drop
the appeal, if they were so inclined, to ask that the order
be changed to rescind it.
C-13
So, it’s not moot. I mean, in fact, that’s [p. 11] entirely
probable that we would do that, if this were to occur.
THE COURT: All right. Anything further, gen-
tlemen?
MR. OLIVAS: One last point.
THE COURT: Yes.
MR. OLIVAS: They wouldn’t drop their appeal
because there’s about $13,000,000 in civil fines against Mr.
Bogart.
THE COURT: How much?
MR. OLIVAS: It’s up to about 13,000,000 at this
point.
THE COURT: Here’s the outcome. I’m going to
reflect upon the sanctions certainly against counsel. I
think I ought to reflect on that.
The demurrer is sustained to the petition for writ of
mandate. I find the petition to be barred by the res
judicata effect of the published BCA decision, upholding
the right of the Coastal Commission to enforce the per-
mits against the petitioner in connection with the cease
and desist order issued by the Commission the Coastal
Commission.
There are further grounds sent forth by the attorney
general for the sustaining of the demurrer. The other is
the unclean hands of petitioner. And in that connection I
should indicate that the Court took judicial notice, per the
moving parties request. And I refer specifically to the
appendix submitted in support of the demurrer.
C-14
Further, the Court finds that the petition for writ of
mandate is moot. The Commission obtained a judgment
[p. 12] of permanent injunction, requiring petitioner to
rescind the subject real estate contracts. Any permanent
injunction would not be altered by any change in a cease
and desist order by the Commission.
Further, I find that Section 13138(b) does not mandate
the Coastal Commission to set a hearing or a further
hearing on the cease and desist order.
Further, the Court finds the Plaintiff cannot cure the
pleading defects.
With respect to the sanction order, the sanction
request is granted as to — as against the Plaintiff, Bogart,
pursuant to CCP 128.7. The attorney general has pro-
vided sufficient evidence to support the claim that the
petition is frivolous. Accordingly, I'll require the peti-
tioner to pay the sum of $1,129 to moving party within 20
Gays, pursuant to 128.7. I’m making the order pursuant to
that section.
I find the moving party has met the safe harbor
requirements, the noticed requirements, mandated by
128.7.
I will take under consideration — submission the issue
of whether to impose that sanction sum against counsel,
all counsel for the petitioner.
Moving party is to give notice of ruling.
MR. OLIVAS: Yes, your Honor. And should I
submit a proposed judgment?
C-15
THE COURT: Yes. I suggest you wait a day
until I decide what to do about sanctions against counsel.
MR. OLIVAS: Yes, your Honor. Thank you,
your Honor.
[p. 13] MR. FOSBINDER: Thank you, your
Honor.
THE COURT: You’re welcome.
(Proceedings in the above-entitled matter were con-
cluded.)
[p. 14] SUPERIOR COURT OF THE
STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT WE B JUDGE ALAN B. HABER
PETER D. BOGART, etc., et al., No. SS 006 369
Plaintiffs,
vs.
)
)
)
)
CALIFORNIA COASTAL
COMMISSION, :
)
)
Defendant.
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES _)
I, HORACE W. BRIGGS, a duly designated transcri-
ber, do hereby declare and certify under penalty of
C-16
perjury that I have caused to be transcribed the portion of
Tape 1 which was duly recorded in the Superior Court of
the State of California County of Los Angeles, Depart-
ment WE B, on the 2nd day of April, 1996, in the above
mentioned case, and that the foregoing 13 pages comprise
a true and correct, accurate transcription of the aforemen-
tioned tape.
Dated this 17th day of July, 1996.
/s/ Horace W. Briggs
Transcriber
D-1
APPENDIX D
FOSBINDER & FOSBINDER
Attorneys at Law
723 Ocean Front Walk
Venice, California 90291
(310)396-1071 (310)841-5640
JAMES H. FOSBINDER #147801
RHONDA M. FOSBINDER #172253
BABAK NAFICY #177709
Attorneys for: Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
PETER D. BOGART, an )
individual; OJAVAN )
INVESTORS, INC.; PORT _)
LEMOORE CORPORATION;)
SUTTON PROPERTIES, )
INC.; SEALUBBER, INC.; _)
PAKID HOLDINGS, INC.; )
MALEK AGENCY LTD.; )
QUELIMANE CO.; MTG )
ALLIANCE CORP; )
HIGHLAND GROUP, INC.; )
AND P.U. ENTERPRISES _ )
)
)
)
)
)
)
)
Plaintiffs,
v.
THE CALIFORNIA
COASTAL COMMISSION
Defendants.
CASE NO. SS006369
VERIFIED PETITION
FOR ADMINISTRATIVE
MANDAMUS (C.C.P.
§ 1094.5; P.R.C.
§ 30801), OR IN THE
ALTERNATIVE FOR
WRIT OF MANDAMUS
PURSUANT TO C.C.P.
§ 1085
(Filed Dec. 15 1995)
D-2
PETITIONERS ALLEGE AS FOLLOWS:
1. PETER D. BOGART is an individual. OJAVAN
INVESTORS, INC.; PORT LEMOORE Inc.; SUTTON
PROPERTIES, INC.; SEALUBBER, INC.; PAKID HOLD-
INGS, INC.; MALEK AGENCY LTD.; QUELIMANE CO.;
MTG ALLIANCE CORP.; HIGHLAND GROUP, INC;
AND P.U. ENTERPRISES, are corporations. The individ-
ual and corporate entities will hereinafter be referred to
as “Petitioners”.
2. The CALIFORNIA COASTAL COMMISSION
(hereinafter “Respondent”), is a state agency having sec-
ondary jurisdiction over development of real property
lying within the California Coastal zone pursuant to the
California Coastal Act. (Pub. Res. C. § 30300, et Seq.)
Respondent is also the state agency authorized to issue
cease and desist orders for purported violations of Cali-
fornia Coastal Act. (Pub. Res. C. § 30801(a))
3. Petitioners hold various interests in lots located
in Tract 9604. The subject properties are within the juris-
diction of Respondent, commonly known as the Coastal
Zone.
4. On August 20, 1992, Respondent issued Perma-
nent Cease and Desist Order number CCC-92-Cd-1 (here-
inafter “ORDER”) against Petitioners on the grounds that
they purchased and resold the subject properties. Said
Order expressly provides that it remains in effect until
rescinded by Respondent.
5. In relevant part, the Order provides:
Pursuant to the authority under California Pub-
lic Resources Code Section 30810, the Coastal
D-3
Commission hereby orders . . . [Petitioners] to
cease and desist from the sale, conveyance or
transfer in any manner of any interest in [var-
ious real properties] . . . unless said sale, con-
veyance or other transfer complies in all
respects with the terms and provisions of those
certain Declarations of Restriction recorded
against said properties. . . . This order shall
remain in effect permanently unless and until
rescinded by the Commission. (Emphasis added.)
A true and correct copy of the Order is attached hereto
and incorporated herein as Exhibit I.
6. On September 13, 1995, Petitioners made a writ-
ten application and request for modification, rescission
and cancellation of the ORDER, pursuant to Title 14,
section 13188(b) of the California Administrative Code. In
this application, Petitioners requested a hearing in accor-
dance with section 13188(b). A true and correct copy of
the application and the accompanying cover letter is
attached hereto and incorporated herein as Exhibit 2.
7. On October 17, 1995, Respondent, through coun-
sel, rejected Petitioners’ application for modification of
the Order without conducting a public hearing as
required by section 13188(b). In its October 17 letter,
Respondent stated that: “[I]t is not in our client’s (i.e.
Respondent) best interest to modify it [the Order], no
rational ground to do so has been presented by you, and
the Coastal Commission declines the invitation to modify
or vacate the cease and desist order.” Attached hereto
and incorporated herein as Exhibit 3.
8. California Code of Regulations, Title 14,
§ 13188(b) states in part:
D-4
The commission, after public hearing, may res-
cind or modify a cease and desist order that it
has issued. A proceeding for such a purpose
may be commenced by (1) any person to whom
the cease and desist order is directed, . . . Upon
receipt of a request pursuant to this subsection
(b) for recision or modification of a cease and
desist order issued by the Commission, a hear-
ing on the request shall be held at the next
regularly scheduled meeting or as soon thereaf-
ter as is practicable .
14 CA Admin. C. 13188(b) (emphasis added). Attached
hereto and incorporated herein as Exhibit 4.
9. Section 13188(b) does not vest in the Commission
the power to decide the merits of an application for
modification or rescission prior to, or without, holding a
hearing, and further mandates that a hearing be held
upon request. Therefore Respondent's refusal to schedule
a public hearing to consider the merits of Petitioners’
application constitutes abuse of discretion.
10. The application for modification or rescission of
the Order is a good faith, honest attempt to modify or
rescind the ORDER based on changed circumstances pur-
suant to statutory authorization, and prior proceedings
and judgments rendered by this court have no bearing on
this application and do not bar the present action.
11. Petitioners have exhausted all available
remedies.
Petitioners have repeatedly requested that Respondent
reconsider their decision not to hold a hearing. See
exhibits attached hereto. Respondent’s recalcitrance has
forced Petitioners to file the present petition for a Writ of
D-5
Mandate in order to have their day before the Commis-
sion and present their case in an open hearing. The pre-
sent application for Mandamus is the only plain, speedy,
and adequate remedy in the ordinary course of law. There
are no provisions for an administrative appeal of the
Commissions decision.
13. Respondent has the mandatory duty, as well as
the ability, to schedule a public hearing to consider Peti-
tioners’ application.
WHEREFORE, Petitioners pray:
1. The court issue a peremptory writ commanding
Respondent to hear and consider at its next regularly
scheduled hearing, or as soon as thereafter is practicable,
Petitioners’ application for modification, rescission or
cancellation of the Order,
2. Award Petitioners the cost of this proceeding;
and,
3. Award Petitioners any other and further relief the
court considers proper.
Dated: December 15, 1995
Fosbinder & Fosbinder
/s/ James H. Fosbinder
By: James H. Fosbinder
Attorneys for Petitioners
VERIFICATION BY PARTY
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am a petitioner in the above-entitled action; I have read the
foregoing
eT
D-6
Petition for Writ of Administrative Mandamus, or,
In the Alternative for Writ of Mandamus pursuant
to CCP Section 1085
and know the contents thereof; and I certify that the same is
true of my own knowledge, except as to those matters which are
stated upon my information or belief, and as to those matters I
believe it to be true
I declare, under penalty of perjury, that the foregoing is true
and correct.
Executed on December 15, 1995, at Los Angeles, California.
/s/ Peter D. Bogart
PETER D. BOGART
Petitioner
E-1
APPENDIX E
Bourbeau & Bourbeau, Bonilla & Tocchio, P.A.
50 Beacon Street
Boston, Massachusetts 02108
Telephone (617) 367-9695 Facismile (617) 367-9651
Mark S. Bourbeau, Esq. Jeffery A. Tocchio, Esq.
Michael C. Bourbeau, Esq.* Victoria M. Bonilla
-Argudo, Esq.
*also admitted in T. David Raferty, Esp.,
California Of Counsel
September 13, 1995
California Coastal Commission
45 Fremont Street, Suite 2000
San Francisco, CA 94105-2216
RE: OJAVAN INVESTORS, INC. et al.
Dear Commissioners:
Enclosed please find an application to modify or rescind
your previously issued Cease and Desist Order filed in
the above referenced matter. Please calendar the same for
hearing in accordance with the application.
Please stamp the enclosed copy of this letter as evidence
of receipt of same.
Thank you for your cooperation. Please do not hesitate to
contact his office if there are any questions with the
above.
Sincerely,
/s/ Michael C. Bourbeau
MICHAEL C. BOURBEAU
Enclosures
naa a a |
E-2
MCB/Imb
cc. California Attorney General
300 So. Spring Street, Ste 5212
Los Angeles, CA 90013
E-3
MICHAEL C. BOURBEAU, ESQ., NO. 90773
BOURBEAU & BOURBEAU, BONILLA & TOCCHIO
50 Beacon Street, Fourth Floor
Boston, MA 02108
(617) 367-9695
Attorney for Applicants
BEFORE THE CALIFORNIA COASTAL COMMISSION
) ‘
OJAVAN INVESTORS, INC.; Glas sista
HIGHLAND GROUP, INC.; PORT _i+)
LEMOORE CORPORATION; SUTTON )
PROPERTIES, INC.; MALEK AGENCY, )
INC.; PAKID HOLDINGS, INC.;
QUELIMANE COMPANY; P.U.
ENTERPRISES, INC.; M.T.G.
ALLIANCE CORPORATION;
SEALUBBER INC.; and PETER
BOGART,
ee ee eee ee ee ee”
Applicants.
APPLICATION AND REQUEST TO MODIFY,
RESCIND AND CANCEL
“CEASE AND DESIST ORDER 92-1-CD-1”
AND TO CONVENE A HEARING
(CCR 13188B)
COMES NOW each of the above-referenced Appli-
cants who hereby submit this application to modify, can-
cel and/or rescind the “Cease and Desist Order 92-CD-1
of August, 1992 pursuant to CCR Section 13188b. Said
Order has produced considerable and extremely costly
litigation, part of which is before the California Court of
Appeals, Case No. 2d Civil No. 8089152. Applicants
E-4
respectfully submit this application in an effort to put an
end to the litigation, without any waiver or withdrawal of
the claims put forth therein, and to bring before the
Commission certain important circumstances that were
not previously considered. Applicants, therefore, respect-
fully request the Commission to set a hearing hereon.
Applicants base this petition upon the following specific
grounds:
1. Tract 9604 (M.B. 141/55-58) is located along Lat-
igo Canyon Road, some 4 miles north of the Malibu coast
line. The 54 lots, which are in issue by this application, of
the 138-lot tract have minimal, if any, nexus to the princi-
pal goals of the Coastal Act, to wit coastal access and
public recreation.
2. There are and have been significant changed con-
ditions since the initial Order in the immediate surround-
ing area, including at least 8 construction permits issued
by the Commission during the past year along Latigo
Canyon Road. At least 2 permits have issued to people
associated with the Commission, one of these being the
Don Schmitz’ lot which abuts one of Applicants’ lot.
3. Although these individual lots have been the sub-
ject of prior and current litigation, the courts have
avoided dealing with this Cease and Desist order, ruling
instead that the applicable statute of limitations which
was based on the predecessor in interest’s purported
private restrictions barred the then pending court action
challenging the restrictions. None of the above Appli-
cants, however, have ever sought or applied for a “coastal
permit” and by this application merely seek to modify the
restrictions based on changed conditions. Applicants are
E-5
not builders or developers, only investors seeking to
resell the lots for residential use all in accordance with
their intent at the time of their good faith purchase of
said lots.
4. Tract 9604 is a legally subdivided Tract, suitable
for affordable single-family dwellings. The Commission,
pursuant to P.R.C. § 30600.1 and Gov. Code § 65590 is
expressly required to promote affordable housing.
5. Tract 9604 has the infrastructure that permits con-
struction immediately.
(a) Latigo Canyon Road is a two-lane, county-main-
tained paved highway with outlets to Pacific Coast High-
way and Mulholland Drive.
(b) Each individual lot is charged with a water
stand-by charge by the Metropolitan Water District,
showing availability of water.
(c) Each individual lot is charged annually with
school bond payments, showing availability of schools.
(d) Lots in the immediate vicinity have percolating
effluent systems — approved by the Commission and L.A.
County.
(e) The 54 lots vary in size from approximately
16,000 square feet to approximately 6,500 square feet and
are therefore eminently suitable for “affordable” single-
family dwellings. The lot prices are clearly affordable and
have been offered by Applicants at public auction for a
$8,000 minimum bid per lot. This compares favorably
with “affordability” of other Malibu area land, where
approximately $200,000 per acre is a minimum and even
E-6
condominium or townhouse lots are unavailable below
$40,000 per unit.
6. The Supreme Court has now enforced the law
relating to changes in configurations of subdivided lands,
which was always exclusive under procedures of the Sub-
division Map Act (SMA), Sections 66451.10 to 66451.21 of
the Government Code (merger of existing lots). The
Supreme Court’s holding in Morehart v. County of Santa
Barbara, (1994) 7 Cal. 4th 700, 29 CR2d 804, 872 P2d 143,
has firmly established that “combinations” of existing
individual lots are unlawful and void.
As a consequence of Morehart, the Commission
should modify, rescind and cancel all the purported
“recombinations” of the 54 individual lots in Tract 9604.
7. The Commission is requested to vacate and can-
cel all “restrictions” which “damage” any portion of the
individual 54 lots in Tract 9604 by restricting the use and
transferability of these lots. The Commission is free to
exercise its secondary permitting powers if and when a
development application is filed, following county
approval.
8. Other significant changed circumstances, that
have occurred since the cease and desist order was
issued, are the numerous recent acquisitions by the con-
servancy of land which is to be “retired” from develop-
ment. In the “Thorne” permit report, the Commission
found that there are 1,200 available small lots for devel-
opment in 1990, in the Malibu-Topanga coastal zone. In
addition, the “Bob Hope” project in Malibu, which was
planned for 300 (and perhaps 600) individual lots has
been “retired” by the Conservancy, as has the Barbra
E-7
Streisand 20-acre plus land to a single (legal) residence; a
large Topanga area tract (planned for approximately 100
homes) belonging to people believed to be associated
with Disney has also been “retired” from development.
The approximately 120 acre Escondido Canyon parcel of
Fairfax Savings (Blankenship) previously zoned for some
24 individual lots and situated below Tract 9604, is now
being acquired by the Conservancy also. Also so many
transfer development credits (TDCs) have become avail-
able that they are now being offered for sale in “bulk.”
As a result of such “retiring” hundreds of existing
lots or lots ready for building permits, the supply of
“available” and “affordable” lots for low and moderate
income persons has decreased significantly.
9. Opening up the 54 “affordable” individual lots in
Tract 9604 will comply with and further the basic goals of
the Commission. Many Malibu-area workers will be
spared from congested Pacific Coast Highway and
lengthy trips to and from work, traveling on under used
Latigo Canyon Road instead. Living in clear air, protected
by ocean breezes from Los Angeles area smog and resid-
ing in decent, affordable homes are desirable social, eco-
nomic and cultural goals.
10. The “Thorne” project, which was the claimed
resulting consideration of the restrictions on Tract 9604,
has not come to fruition since 1990, and, in fact, has been
a disaster. Eight (of 18) lots were in a flood hazard area
and 9 (of 18) lots were in geological hazard areas. The
trust deeds were parceled out to approximately 150 inves-
tors, and all 18 lots were foreclosed on in 1994 which has
resulted in more than 150 owners of small pieces of 18
Se eee
veP ky Dn ee a ee - " “
E-8
lots. Not a single building has been “developed” during
the past five years.
11. There are numerous precedents for Commission
action to modify and change its prior actions, even after
full implementation of its permits. For example, the
“Leanse” permit, No. A-337-79 (of 12/19/79), was mod-
ified in April 1993 by document No. 94-66948 and
9466950, recorded January 1994, although the very permit
allegedly became “final” in 1979. Among the “modifica-
tions” recorded administratively by the Commission are
documents 94-2266813, 94-2266814, 94-2266815,
93-1972637, 90-1778919, 88-1313961, 87-0598851,
87-0598845 and many more, all in Los Angeles County
official records.
12. It appears that reference to the “Leanse” (in fact
“Tourtelot”) permit is in error and misquoted in the
Order. That portion of the Cease and Desist Order refer-
ring to lots purportedly restricted pursuant to the
“Leanse permit,” A-337-79 of December 19, 1979 must be
corrected and canceled as void.
13. The purported authority for issuance of the
Cease and Desist Order of August, 1992 is based on a
“new” section added to the Public Resources Code effec-
tive January 1, 1992, PRC Section 30010. This law is
unconstitutional on its face, and unconstitutional as
applied, as it has purported to penalize any action deal-
ing with “coastal permits previously issued” and thus it is
in direct violation of the “ex-post facto” prohibitions of
the Constitution. Applicants respectfully request the
Commission to right its own wrong and correct this man-
ifest injustice.
E-9
WHEREFORE, it is respectfully requested:
1. That the matter be placed on the Commission’s
agenda for the next regularly scheduled Commission
meeting as required by 14 CCR Section 13188b.
2. That the Commission cancel and rescind its Cease
and Desist Order 92 CD 1, and the temporary cease and
desist order of John Bowers, for one executive Director
(unnumbered).
3. That the rescission and cancellation of the Cease
and Desist Order be made retroactive nunc pro tunc to
the date these orders were issued.
4. That the Commission record in official records of
each County where the effects of such Commission orders
and restrictions have been made public an official notice
that such orders and restrictions have been rescinded and
are null and void.
5. For such other relief as may be just and proper.
Date: September 12, 1995
Respectfully submitted,
BOURBEAU & BOURBEAU,
BONILLA & TOCCHIO
/s/ Michael C. Bourbeau
By: MICHAEL C. BOURBEAU
Attorney for Applicants
ee
F-1
APPENDIX F
Second Appellate District, Division Two,
No. B103320
S061480
IN THE SUPREME COURT OF CALIFORNIA
PETER D. BOGART Et Al., Appellants
v. (Filed Jul. 9, 1997)
CALIFORNIA COASTAL COMMISSION, Respondent
Appellants’ petition for review DENIED.
GEORGE
Chief Justice
G-1
APPENDIX G
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOR THE SECOND APPELLATE DISTRICT
DIVISION: 2
Fosbinder & Fosbinder
James H. Fosbinder
723 Ocean Front Walk
Venice, CA. 90291
RE: Bogart, Peter D.
vs.
California Coastal Commission
2 Civil B103320
Los Angeles NO. SS006369
Judge: HABER, A.
* * REMITTITUR NOTICE * *
Notice is hereby given that the Remittitur has been
issued this date and that the opinion, decision or order
entered in the above entitled cause on 04/07/97 is now
final.
* * Affirmed In Full. * *
Respondent To Recover Costs.
JUL 25 1997
JOSEPH A. LANE,
Clerk
By: J. Chlanda
Deputy Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.