Palos Verdes Estates' settlement with surfers looks like a 'done deal'

The city of Palos Verdes Estates has reached a tentative settlement mid-trial with two out-of-town surfers who accused it of violating the California Coastal Act by conspiring with local surfers to prevent outsiders from visiting and riding its waves. The settlement would ward off a court judgment that could have vastly expanded the reach of the Coastal Commission.

"I think we're done dickering amongst the lawyers," plaintiffs' attorney Kurt A. Franklin said.

"The format is a consent decree and settlement, and it requires court oversight with that application for five years. It's all about equitable relief, or generally, about equitable relief that the city is agreeing to," explained Franklin, a director at Fennemore Craig PC.

Best Best & Krieger LLP partner Christopher M. Pisano, who represents Palos Verdes Estates, told Los Angeles County Superior Court Judge Lawrence P. Riff that he was scheduled to brief the city council before it votes on the matter in closed session at 5 p.m. Tuesday. If it were not approved, the trial would resume. Attorneys will appear before Riff to advise on the status of the agreement Wednesday.

"As far as we're concerned, the settlement agreement, in terms of what needs to be done, in terms of the equitable relief, is a done deal pending final city council approval. However, I went over all of the items with the city manager, with Judge Dillon yesterday, and at a staff level, the city is agreeable," Pisano said. Riff had urged the parties to settle after the trial began. Los Angeles County Judge Timothy P. Dillon began mediating between the parties last month.

Pisano went on to say that the city's attorneys will submit a judgment attached to the settlement agreement with a 664.6 provision for five years. Code of Civil Procedure section 664.6 allows a party to request the court to retain jurisdiction over the case until the settlement terms are completed.

"As long as the court is willing to hold jurisdiction for that amount of time, we will do the things required of us. And if there's any issue they can come in with a 664.6 motion," Pisano continued.

Franklin's clients, Cory Spencer and Diana Milena Smoluchowska-Miernik claimed that Palos Verdes Estates officials looked the other way as a group of locals dubbed the Lunada Bay Boys attacked visitors and vandalized their vehicles to keep the beach for themselves. That alleged conduct goes back decades - Lunada Bay is as famous for its surf localism as it is for its right-hand point break.

But the plaintiffs struggled to present evidence that the localism was the result of a concerted effort to keep visitors away rather than boorish behavior by individuals.

Franklin filed the case in 2016. Now-former Los Angeles County judge Amy D. Hogue dismissed the case against the city in 2020. She found that under the Coastal Act the city could not be held liable for the presence of a beach fort allegedly built by the Bay Boys if there was no evidence that the city built or consented to its construction. Spencer et al. v. Lunada Bay Boys et al., BC629596, (L.A. Super. Ct., filed Aug. 4, 2016).

The 2nd District Court of Appeal reversed Hogue's ruling in February 2023, holding that the city could be held responsible for the unpermitted rock fort which the Bay Boys allegedly used as a clubhouse and base of operations. More significantly, it held that the totality of the Bay Boys' conduct constituted a "development" under the Coastal Act. Spencer v. City of Palos Verdes Estates, 2023 DJDAR 1626 (2nd Dist., op. filed Feb. 27, 2023).

The appellate ruling represented a setback for the city, which argued that public entities would be exposed to potentially significant fines if they are found liable for violating the Coastal Act based upon the conduct of private citizens on public property.

All but one of the alleged Bay Boys settled before trial. Those who settled denied committing the claimed behavior but agreed to stay away from Lunada Bay for a set time.

But the trial has not gone well for the plaintiffs. Some of their witnesses appeared hostile. Bay Boys called to testify after they had settled denied that there was a conspiracy with the city or unwritten rules at Lunada Bay that they enforced. Steve Barber, a police captain with Palos Verdes Estates, disputed the plaintiffs' claims that the department doesn't take surf localism seriously.

Riff asked the plaintiffs to whittle down their witness list, at one point telling plaintiffs' co-counsel Victor J. Otten, "I don't think this is going very efficiently."