Suing the City Over Barriers. Opening Brief

• 

Details

Category: Eye On Wesson

Published on Tuesday, 15 January 2013 14:48

Written by Dianne Lawrence

 

 

I. Introduction

Petitioner’s neighborhood is depicted on the Map attached to the Verified Petition as Exhibit A, bounded by the Interstate 10 Freeway to the south, by major arterials Arlington and Western Avenues to the east and west, and West Washington Boulevard to the north.  (See also, vicinity map, AR 255, proposed closures). The area is known as the “Western Heights” Neighborhood. Los Angeles Fire Department’s Station 26 facility is located at 2009 South Western Avenue (see Exhibit A to Petition, “LAFD 26”), which is adjacent to the affected neighborhood, within one block of the entrance, at Manhattan Place.

In mid-December, 2005, Petitioner discovered that partial temporary barriers blocked public access from Arlington Ave. at 20^th and 21^st Streets and a full temporary barrier blocked access at 20^th and Manhattan Place, closing access to or from Western Avenue. After numerous extensions of these temporary barriers by the city, and numerous requests by Petitioner for evidence to support them, coupled with demands   by Petitioner to remove them, the city rejected Petitioner’s requests and gave final approval for the installation of permanent barriers on December 5, 2011, granting  permits to replace the temporary devices with permanent ones and construct a wrought-iron gate closing 20^th at Manhattan Place with access only by the fire department.

II. Scope of Review

The issue raised by this case is whether the city had lawful authority under the California Vehicle Code to allow closure of these streets to the public. Petitioner contends that there was a lack of public notice and hearing required by statute, as well as a lack of any evidence in the form of police report, required by Vehicle Code §21101.4,  to justify erection of the barriers. Since the action to erect the barriers was taken by authority of two City Council motions citing the relevant state statutes, Vehicle Code §§ 21101 and 21101.4, there is a mixture of a quasi-judicial action by the City Council followed by a second action purporting to add “technical” corrections, constituting the discretionary decisions, coupled with the ministerial action of the Board of Public Works to issue the permits to encroach in the public way.  The  City Council motion for installing the barriers (AR 021-023) cited and relied upon Vehicle Code §21101.4, which requires notice, public hearings, and evidence to support the findings and action taken, making it a quasi-judicial action invoking the substantial evidence scope of review. A second motion was made purportedly to adopt “technical provisions in order to implement the intent of that action”, citing 21101(a)(2). (AR 026). Under §21101, if the City Council’s action were considered, arguendo, the adoption of a rule or regulation by ordinance or resolution as contemplated by that section, it would require the “highly deferential” scope of review afforded legislative actions under CCP §1085 ( See, Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal. App. 4^th 808, 814). However, this action does not involve adoption of an ordinance or regulation of general application, it involves a single action for a single neighborhood, which makes it a continuing quasi-judicial action. See, Uhler v. City of Encinitas (1991) 227 Cal.App.3d 795[1], 808: “Plaintiffs correctly point out the City's approval of the project [street barriers] was an adjudicative act relating to an isolated project and did not constitute the adoption of a ‘rule’ or ‘regulation.’”

The evidence will show that using either or both of these standards in combination, there is simply no evidence that a public hearing was held or a police report was considered by the City Council, or any police recommendations were made which support the “findings” for partially closing the streets, therefore the actions were unlawful and void ab initio, and the barriers constitute a nuisance.

III. The Administrative Record

A.        The City Refused to Compile the Record.  Concurrently with the filing of the action, Petitioner made a formal request for preparation of the administrative record and served it on the city clerk’s office. (See court file for conformed copy with proof of service; see also, Declaration of Counsel John B. Murdock, filed with AR). The city attorney’s office contacted Petitioner’s attorney and advised that this was not the proper way to secure records for the action, and that it was up to Petitioner to obtain the records independent of the city attorney’s office through this action. A dispute over this assertion, and the continued refusal to prepare the certified administrative record, led Petitioner to make demand for records by way of discovery (requests for production of documents and admissions), whereupon the city attorney filed an ex parte application to quash discovery. No oral argument was held on the application, despite a responsive filing by Petitioner, and the court simply granted the motion quashing discovery without comment. (See court file herein, application, opposition, and order issued June 4, 2012).    B.        Petitioner Obtained and Compiled the Records. The city attorney thereafter insisted that Petitioner must obtain the documents directly from the city clerk by way of public records act request. (See Declaration of Counsel John B. Murdock, included with “Petitioner’s Compilation of Administrative Records” etc.). Petitioner’s counsel made the Public Records Act Request, as specified by city attorney (see AR 2-16), and the city clerk did produce two certified City Council File records of the Council actions taken, one for the original motion in 2005 (AR 020-024), and the second motion in 2010 re-adopting the original motion (AR 025-037), but also responded that two other agencies, Department of Public Works and Department of Transportation, must be contacted to complete the records as requested (see AR 18).

Following the City Clerk’s instruction for the remaining records, Petitioner’s counsel  served formal Public Records Act Requests on the Department of Public Works (AR 39-54) and the Department of Transportation (AR 171-186), receiving, respectively, their certified responses (Tabs D through G, AR 39-295). Transcripts of the City Council proceedings and the Board of Public Works proceedings were requested by counsel but not provided by the city, causing Petitioner to obtain the audio files and have the transcripts prepared (See Declaration of Counsel filed with AR, and see Tabs H through K). Petitioner Dianne Lawrence, prior to filing this action,  had  made numerous requests for records under the Public Records Act, and those requests and responses are included at Tabs L through P. (See Declaration of Petitioner filed with AR and see AR 351-407). Also included is the purported notice sent by the city to Petitioner 2 days before the City Council’s second “hearing” on the barriers. (Tab Q, AR 408-410).

IV. State Law Dictates What Cities Can and Cannot Do With Streets

It has long been established that city and county governments do not have unbridled authority to close or otherwise obstruct the streets within their jurisdiction, since the street belong to the general public and state law preempts local law on how they are to be regulated and restricted. The use of highways for purposes of travel and transportation is not merely a privilege, but a common and fundamental right, of which the public and individuals cannot rightfully be deprived. See, City of Hawaiian Gardens v. City of Long Beach (2d Dist. 1998) 72 Cal.Rptr.2d 134, summarizing the preemptive control established in 1982 by the Supreme Court as follows:

The state has preempted the field of traffic control. (Veh.Code, § 21; Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 550, 183 Cal.Rptr. 73, 645 P.2d 124.) § 21provides: “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.” As stated in Rumford, “ ‘The streets of a city belong to the people of the state, and every citizen of the state has a right to the use thereof, subject to legislative control.... The right of control over street traffic is an exercise of a part of the sovereign power of the state....’ [Citation.] “ ‘The use of the highways for purposes of travel and transportation is not a mere privilege, but a common and fundamental right, of which the public and individuals cannot rightfully be deprived ... [A]ll persons have an equal right to use them for purposes of travel by proper means, and with due regard for the corresponding rights of others.’ [Citation.]” ( Rumford, supra, 31 Cal.3d at pp. 549–550, 183 Cal.Rptr. 73, 645 P.2d 124, emphasis in that decision.) “Thus, unless ‘expressly provided’ by the Legislature, a city has no authority over vehicular traffic control.” ( Ibid.)

In 1982, in Rumford, the Supreme Court ruled that the City of Berkeley had no authority to erect traffic barriers that partially closed more than 40 streets. It concluded the closures were not authorized under the version of § 21101 then in effect. (31 Cal.3d at p. 554, 183 Cal.Rptr. 73, 645 P.2d 124.) The Court held: “[T]he delegation of power to prescribe traffic rules is strictly construed [citation]....” ( Id. at p. 550, 183 Cal.Rptr. 73, 645 P.2d 124.)

In a leading case arising in the City of Los Angeles, Citizens Against Gated Enclaves v. Whitley Heights Civic Assn.  23 Cal. App. 4th 812 (2d Dist. 1994), it was established that homeowners could not use gates to exclude the public from certain city streets in their neighborhood. Although, under the terms of a so-called  “Withdrawal Agreement” with the homeowners' association, the city had purported to withdraw the streets from public use, the city did not determine, based upon any evidence, that the streets were no longer needed for vehicular traffic. Therefore, the city had no statutory authority to withdraw the streets from public use. Moreover, despite characterizing the streets as withdrawn, the effect of the agreement was to partially close the streets by means of several gates, so that residents would be allowed to use them while nonresidents would not. There is little to distinguish that case from this, where a small faction of  residents decided they would like a semi-gated community to keep traffic out, and asked the city councilman to erect a full barrier at 20^th St and Manhattan Place, and right-turn only exit barriers at 20^th and 21^st Streets and Arlington. There is one major distinction, however, in that the city council here invoked the authority of Vehicle Code §21101.4 in order to accomplish what this faction of residents requested, whereas in Whitley Heights, the gates across the public street was purportedly justified under a Government code provision allowing removal of streets no longer deemed necessary. However, the court found that Rumford, supra, and Veh. Code §21, preempted the city’s action because the city failed to make any showing of evidence to justify the closure under the statutory authority cited: “[T]he effect of the withdrawal of the public streets was to close them to public use without a determination that the streets were no longer needed for vehicular traffic. (Appellant refers to the total closure of the streets in its briefs.) Accordingly, we conclude that the City did not have any express statutory authority to withdraw the streets from public use.” The court of appeal therefore upheld the trial court’s  injunction, concluding with remarks equally appropriate here:

Even though Whitley Heights is arguably in a discrete and isolated area of the City, under appellant's reasoning, there is nothing which would prevent the City from applying this alleged power to withdraw streets from public use in other areas of the City. Although we understand the deep and abiding concern of the City and appellant with crime prevention and historic preservation, we doubt the Legislature wants to permit a return to feudal times with each suburb being a fiefdom to which other citizens of the State are denied their fundamental right of access to use public streets within those areas. If such action is necessary, then it should be expressly authorized by the Legislature along with whatever safeguards it deems necessary to protect the public interest in public streets.  (Id., 23 Cal App. 4^th at 824, fn. omitted).

V.  Vehicle Code Requirements Apply In Our Case

Barriers and street closures by the city are governed in this case by preemptive provisions in the State Vehicle Code cited by the City Council in its motions in 2005 and 2010. Specifically in §21101.4, which was cited in justification of erecting the barriers in 2005, require specific procedures and substantive evidence to support findings in justification of closing or blocking public access to public streets and highways. The City Council document that authorized the installation of the temporary barriers in our case is a motion adopted by unanimous vote of the Council on June 28, 2005, set forth in the Administrative Record (hereafter “AR”) at page AR 21-22. The Motion recites that the barriers are authorized pursuant to Vehicle Code §21101.4 (id), however, examination of the record shows that the mandatory requirements of that statute were not met, just as the cited statutory requirements were not met in Whitley Heights.

Prior to initiating this action, Petitioner reviewed the Respondents’ entire City Council File that sets forth the procedures followed, and the evidence considered, by Respondents prior to authorizing and erecting these barricades.  Petitioner also made several Public Records Act requests for all documents which might reflect said evidence.   Petitioner’s requests under the Public Records Act, and the responses made to these requests by various city officials, are set forth at Tabs L through P, AR 351-407. In particular, see responses at AR 353-54; 378-380; and 401-402. Petitioner confirmed from this investigation, and therefore alleged in the Verified Petition,  that prior to adoption of the motion by the Council, there was no noticed public hearing as required by law, and that there is no evidence of any police report in the City’s record to support the findings required to be made under state law, Veh. Code §21101.4. Despite numerous efforts by Petitioner, through informal correspondence, demands, and threats of action for mandamus, the Respondents refused to remove the “temporary” barriers or to justify their actions with the evidence required by state law, thereby compelling Petitioner to file this action after the city took final action to issue permits to change the “temporary” barriers to “permanent” barriers on in the purported “amended” motion dated August 20, 2010. (AR 026).  The barriers were not actually authorized for construction until issuance of final ministerial permits by Respondent Board of Public Works after numerous extensions on December 5, 2011 (see AR 005).

VI. Vehicle Code Evidentiary Requirements Are Absent

As noted above, California Vehicle Code §21101.4 requires certain evidentiary matter be presented prior to installation of temporary street barriers that restrict public access. The pertinent text of § 21101.4 consists of the following mandatory features:

§ 211010.4

(a) A local authority may, by ordinance or resolution, adopt rules and regulations for temporarily closing to through traffic a highway under its jurisdiction when all of the following conditions are, after a public hearing, found to exist:

(1) The local authority finds and determines that there is serious and continual criminal activity in the portion of the highway recommended for temporary closure. This finding and determination shall be based upon the recommendation of the police department ….

(2) …

(3) …

(4) The closure will not substantially adversely affect traffic flow, safety on the adjacent streets or in the surrounding neighborhoods, the operation of emergency vehicles, the performance of municipal or public utility services, or the delivery of freight by commercial vehicles in the area of the highway proposed to be temporarily closed.

(b) A highway may be temporarily closed pursuant to subdivision (a) for not more than 18 months, except that this period may be extended for not more than eight additional consecutive periods of not more than 18 months each if, prior to each of those extensions, the local authority holds a public hearing and finds, by ordinance or resolution, that all of the following conditions exist:

(1) Continuation of the temporary closure will assist in preventing the occurrence or reoccurrence of the serious and continual criminal activity found to exist when the immediately preceding temporary closure was authorized. This finding and determination shall be based upon the recommendation of the police department or, in the case of a highway in an unincorporated area, on the joint recommendation of the sheriff's department and the Department of the California Highway Patrol.

(2) The highway is not designated as a through highway or arterial street.

(3) Vehicular or pedestrian traffic on the highway contributes to the criminal activity.

(4) The immediately preceding closure has not substantially adversely affected traffic flow, safety on the adjacent streets or in the surrounding neighborhoods, the operation of emergency vehicles, the performance of municipal or public utility services, or the delivery of freight by commercial vehicles in the area of the highway that was temporarily closed.

(c) The local authority shall mail written notice of the public hearing required under subdivision (a) or (b) to all residents and owners, …of property adjacent to the portion of highway where a temporary closure or extension of temporary closure is proposed.

The records produced by Respondents demonstrate unequivocally that prior to erecting the temporary barriers, Respondents failed to give written notice or hold a public hearing as required by subd. (c) above, failed to secure any evidence by way of police reports of serious criminal activity as required by subd.(a)(1) above, failed to take any evidence or make any findings on the requirement of subd. (a)(4) above, and then unlawfully extended the street closures without holding the required hearings after 18 month periods,  without findings of any substantial evidence as required by subd.(b)(2), above, or take any evidence to justify the continuing closure. All documents requested from the council file are contained in the response to records from the city clerk at AR 020-037, demonstrating the lack of notice, the lack of hearing, the lack of any police report, the lack of any recommendation by the police department, the lack of any noticed extension prior to 18 months termination date, and the lack of any additional evidence for findings. Thus, the erection of the barriers was completely illegal and remains so, because the Council’s later “amendment” of the original motion does nothing to cure these deficiencies. The certified (AR 20) Administrative Records produced by Respondent shows that the city council adopted a motion on June 28, 2005 (AR 22) to allow the installation of barriers “for the purpose of curbing cut-through vehicular traffic and crime in the Western Heights Neighborhood” at the intersections listed in the motion. However, examination of the Council records certified by the city clerk demonstrates that there is no evidence whatsoever of the notice of, or holding of, any public hearing, nor is there any evidence  in the form of a “recommendation”  or report from the police department “that there is serious and continual criminal activity in the portion of the highway recommended for temporary closure”, as required by §21101.4(a)(1), quoted above. Rather, there is merely a recital of the statutory language in the motion, without any evidence at all to back the recital.

Second, there is no evidence at all that the temporary barriers were removed after 18 months in the absence of meeting the requirements to extend them as set forth in § 21101.4(b), quoted above. The barriers remained in place unlawfully despite complaints by Petitioner. Again, the administrative records produced by the Respondents demonstrate a complete absence of any public hearings prior to extending after 18 months, which would have been on January 28, 2007 (18 months after the motion adopted on June 28, 2005). Rather, the Council “amended” the original findings on August 20, 2010 (AR 026), and a few days later on August 25^th,  a ministerial permit to construct the gate/barriers was approved by the Board of Public Works (AR 084-088), but due to delays in obtaining funding  there were several extensions for the actual issuance of the ministerial Public Works permit on February 9, 2011, and on November 15, 2011, all of which were granted through and up to a motion on December 5, 2011. (AR 43-44).   The “Joint Report” signed by the City engineer, the General Manager of LADOT, and the Director of Bureau of Street Services dated July 7, 2010 (AR 84-88) includes a summary of the project’s “background” (AR 86-88) which recites the chronology including the existence of two petitions against the barriers (included in the record at AR 262-274), but makes no mention of any evidence of traffic, crime,  or LAPD reports or recommendation based on crime statistics, to substantiate the original Council motion.  There is an LAPD letter dated March 31, 2010 from Captain Matt Blake to General Manager of LADOT stating merely that he does “not oppose” the installation, and pointedly remarking that he has no recommendations for the installation of the barrier at 20^th Street and Manhattan Place (AR 106).  In other words, the police took no responsibility for the action, and explicitly made no “recommendation” as required by law, for what was dictated by the Council office, directing the installation of barriers requested by a faction of residents who said they had concerns about traffic and crime. Petitioners and others who have lived on these streets for decades disputed these anecdotal allegations (see, e.g., AR 262, resident McCain lived for 43 years on 21^st/Gramercy, no accidents; submitted petition with 142 local signatures, AR 263-271) but were ignored. (See also testimony of resident Eckland, AR 315-316).  Indeed, the City Council adopted the second motion on August 20, 2010 (AR 26), to supposedly adopt “technical provisions” in order to “implement the intent” of the 2005 motion, and to “Reaffirm and readopt the findings in the original Council Action that the above referenced closure is being made as a means of abating significant incidence of crime as well as unsafe driving behavior and an unsafe volume of traffic”. (AR 26, para. 2). However, the record certified by the city clerk contains no public notice of this purported hearing. Petitioner received an email 2 days before the “hearing” with an “attachment” that purports to give official notice, but is undated and was not “mailed” as required by statute. See Declaration of Petitioner Dianne Lawrence, filed with AR, at para.3, and  see Tab Q, AR 408-410; see also, Dianne Lawrence  testimony at AR 298:10-11 “We were told two days ago about this meeting”.)  The certified Council records produced by the city show no radius map for notice, and no list of addresses to residents and adjacent property owners as required by §21101.4(c), for either of the Council hearings. While many of the supporters of the barriers had somehow been notified of the August 20, 2010 Council hearing and were present, none of the opponents, other than the email sent 2 days before to Petitioner (AR 409-410), had been notified.  Clearly the hearing was concocted as an attempt to cure the deficiencies (lack of notice and public hearing) of the first motion, as the city attorney noted to the Board of Public Works (AR 340, “Speaker 2”, through AR 341), but once again they failed to meet the basic due process and statutory requirements for actual public notice and legitimate hearing.

Aside from the lack of notice, the Council could not “reaffirm” the original evidence because none was supplied in 2005, hence this motion is a fiction, attempting to cure the deficiencies that Petitioner had repeatedly pointed out in numerous board appearances (see AR 298-299; 322-325; 399; and 346-348) emails, and requests for the evidence (see AR Tabs L-P). In addition, the 2010 motion recites that the council “Find that the above-referenced closures likely would result in a reduced rate of crime.” (AR 026, para.3). However, the certified record of the council file supplied by the city clerk does not contain any evidence from the police department to substantiate the purported finding regarding crime, and is also devoid of any evidence from the Department of Transportation (“LADOT”) that there was any “unsafe driving behavior and an unsafe volume of traffic”. The LADOT representative, Pauline Chan, told the Board of Public Works there was no traffic study by her department for the barriers, although other departments are capable of doing reports, and that her research revealed none existed (AR 327, “Paula Chan”). A data survey had been done some years before (2003) for speed humps, which were installed on the block on 21^st Street between Arlington and Cimarron (AR 328), but no studies were found for the installation of the barriers. Petitioner’s pre-litigation request for specific records to show evidence of crime and traffic to justify the barriers, resulted in written responses that there were no such records at the LADOT (AR 389-390) or Bureau of Engineering (AR 400-402) or Councilman Wesson’s office (AR 353-354).

The Council motion is fatally defective in re-adopting the findings made in 2005, because those findings were based upon no evidence and no public hearing at all. At a Public Works hearing on another “extension”, the city attorney was questioned by the Board members, who were confused about what the council had done and why they had voted again if they already passed it in 2005. As noted above, the response by the city attorney was essentially that (due to Petitioner’s numerous emails pointing out failure to comply with Vehicle Code requirements) their office “looked at that approval” and decided to correct the lack of notice by having this technical detail solved by another “hearing” with “public comment”. (See AR 340-341, Speaker 2).

The Administrative Record looks as big as it does (408 pages) only because it contains numerous documents (copied over and over for different departments) consisting of correspondence and inter-departmental memoranda dealing with repeated extensions of time, and about how to accomplish the street closures and build the barriers. However, none of these documents consist of the evidence required by the Vehicle Code sections to justify the barriers. Every document is simply evidence of an agency carrying out, or not objecting to, the express will of the Council district office in its original motion to erect the barriers. Numerous e-mails remark on the fact that the council office backs this project, a none-too-subtle instruction meaning this has to get accomplished. For example, the LADOT General Manager sent out a Memo dated August 20, 2009 to 5 city agencies asking for “comments” on the proposed barriers, noting that the office of Councilman Wesson has requested the implementation be “expedited” (AR 133-134). Nothing in this Memorandum provides the agencies with any statutorily required evidence of the need for the barriers, nor do any of the agencies respond with any such evidence. They reply by not “objecting”. LADOT’s Glenn Ogura recounted to LADOT’s Pauline Chan his conversation with Petitioner about her drafted newsletter of events and time limits, wherein he told Chan: “I advised [Dianne Lawrence] that since none of the proper procedures were followed” regarding the barriers at 20^th & Manhattan, there probably was no time limit on how long they could remain. (AR 290-291, Ogura to Chan, et al.; emph. added). This statement was shared with Ogura’a city colleagues on the e-mail, in clear and open recognition that the agency takes it as a “given” that the Council office has adopted a motion to approve the barriers without following proper “procedures” required by law. Since the council office wants the barriers installed, there is no time limit on the “temporary” installation, regardless of the Vehicle Code, and the  only question is when and how it will be finally accomplished.

LADOT’s Pauline Chan pointed out to her cohorts that this project was “dumped onto us by a Ludlow Council motion that was done without consultation with us.” (AR 223, Pauline Chan email to Tim Conger, et al., 10/27/10).

LAPD’s Chief would say (twice) that after consulting the senior lead officer, the department has no “recommendations” for the installation of the barriers, presumably aware that a police department recommendation is a legal requirement.  (AR 106, reiterated AR 164). No crime report or statistics are offered to support the barriers.

In another correspondence from Chan, this time to Bureau of Engineering’s Wesley Tanijiri regarding his drafted Public Works board report, she chides him for neglecting to mention “crime” as a reason for the barriers, even if there is no evidence:

“Page 4, paragraph 4 talks about only one of the two reasons stated in the Council Motion for the barriers—traffic. Paragraph 4 should also mention the other reason—crime, regardless of whether or not either one has or both have been verified as problems by city agencies.”

(AR 229, Pauline Chan to W. Tanijiri, 6/23/10, emp. supplied).

The Bureau of Engineers’ Wesley Tanijiri resolved this lack of verified evidence by sidestepping it in his report, merely reciting that “The [Council] motion stated that the neighborhood also experienced significant crime (burglary and gun violence) with easy ‘get away’ access to the freeway.” (AR 236, penultimate paragraph). In other words, there is no evidence in the record, it is just  “stated” in the council motion. Moreover, even the application for the permit gives only one reason for the barriers, with no mention of crime: “The purpose of the fences is to improve safety in the neighborhood by reducing ‘pass through’ traffic.” (AR 251, “Reason for Encroachment”).  This is no different than the rationale behind the Whitley Heights gates stricken by the court, i.e., residents complaining about cut-through traffic and “crime”.

The Bureau of Street Services urged LADOT to “reconsider” its proposal, and gave reasons why the barriers were ill-advised, primarily due to restrictions on service and emergency providers, and reminded LADOT to comply with Vehicle Code requirements (AR 260), demonstrating obvious awareness of state code requirements by city agency officials, and presumably making this comment due to lack of compliance.

The Bureau of Sanitation expressed its concerns that there was insufficient turning radius and that the street closures “would force three collection vehicles per day to back down the length of the street which will pose unacceptable safety risks to the community.” (AR 165; emph. added).

The Fire Department Battalion Chief expressed his concerns in opposition to barriers due to their impact on response times that can mean the difference between life and death  (AR 362), which was over-ruled, according to the city attorney (AR 340, last para, through 341) by the “chain of command” in the Fire Department as long as they got an automatic gate. The record demonstrates that the council’s political action was to be implemented, regardless of departmental concerns and the lack of evidence to justify denying public access to the public streets or the impact on public safety.

VII. Injunction Is The Remedy for Nuisance

Civil Code §3491 provides the method by which a public nuisance may be abated.  It states, in relevant part, that the “remedies against a public nuisance are indictment or information, a civil action or abatement.”  Abatement typically is “accomplished by a court of equity by means of an injunction proper and suitable to the facts of each case.”  (Sullivan v. Royer (1887) 72 Cal. 248, 249; see also People v. Selby Smelting and Lead Co. (1912) 163 Cal. 84, 90; Los Angeles Brick & Clay Products Co. v. City of Los Angeles (1943) 60 Cal.App.2d 478, 486.)

The court in Whitley Heights cited Civil Code §3479 for the conclusion that the gates in that case could not be allowed to remain on city streets, irrespective of whether it was the city or the association of area homeowners that did the actual construction. (Whitley Heights, supra, 23 Cal App 4^th at 823-24). The trial court’s entry of judgment “ordering termination of the [Withdrawal] Agreement, revocation of the permit and removal of the gates” (id at 817) was upheld and affirmed on appeal. Petitioner contends that the same result is appropriate in the instant case, and requests entry of judgment on a peremptory writ of mandate setting aside city approvals and enjoining the continued unlawful partial closure of public streets by way of the locked gate at 20^th St./Manhattan Place and the partial barriers at 20^th and 21^st streets at Arlington.

Accordingly, the court is respectfully asked to enjoin the maintenance of all unlawful street barriers and closures erected by Respondents; to issue a writ of mandate ordering the Respondents to set aside their approvals and remove the barriers; and order that the Respondents file a return on the writ of mandate reporting on the actions taken in response thereto within 30 days of issuance.

Dated: October 30, 2012                      _________________________________

John B. Murdock

Attorney For Petitioner, Dianne Lawrence