A mushy end to Palos Verdes surfer dispute

The Palos Verdes Estates city council will install signs making it clear Lunada Bay is a public beach and make improvements to surrounding amenities as part of a settlement agreement, signed Tuesday night, ending a lawsuit accusing it of breaching the California Coastal Act by conspiring with local surfers to keep outsiders out.

The significance of the case goes well beyond the claimed threatening behavior of some residents of the posh enclave. The case, first filed eight years ago, went up on appeal and affirmed several principles about public beach access enshrined in the Coastal Act.

Under the terms of the settlement, the city will set up a water station for hikers and their dogs, and improve surrounding hiking trails, among other improvements. Any reports of threatening behavior will go beyond the chief of police to the city manager and mayor, with regular reports to the California Coastal Commission.

"The idea is to bring more people to the area, more diverse groups including people from the outside," said Kurt A. Franklin, a Fennemore Craig PC director representing the plaintiffs.

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.

Lunada Bay is famous for its right-hand point break, which entices surfers far and wide to visit every year. The city is also famous for its surf localism, the practice of threatening and harassing surfers who dare visit. Bringing more people to Palos Verdes Estates might be anathema to Palos Verdes Estates residents, particularly its surfers. But the city was happy to get some finality after eight years of litigation.

"They were facing a lot in potential penalties and attorney's fees," said Christopher M. Pisano, who represents the city. "The city is not going to pay any penalties. They're going to spend some money putting in some new landscaping." Pisano is a partner with Best Best & Krieger LLP.

The parties have until noon on Sept. 16 to submit a stipulated and proposed judgment to Los Angeles County Superior Court Judge Lawrence P. Riff.

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).

"We always understood these principles to be the case," the California Coastal Commission's assistant chief counsel, Alex Helperin, said in a phone interview Wednesday, referencing the appellate decision. "What it does is remove doubt and allows us to point at unassailable authority to support our position. Alleged violators stop making an argument when there is a clear appeals court decision saying they're wrong."

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. They paid fines of $30,000 to $90,000 or agreed to stay away from Lunada Bay for a set time or a combination of the two. The settlement with the remaining Bay Boy, Alan Johnston, is contingent upon the court accepting oversight of the city's resolution under Code of Civil Procedure Section 664.6, Franklin said to the judge on Wednesday.

Section 664.6 allows a party to ask the court to retain jurisdiction over the case until the settlement terms are completed.

At trial the plaintiffs struggled to prove that there was a conspiracy between the Bay Boys and city officials. 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 urged the parties to settle. Los Angeles County Judge Timothy P. Dillon began mediating last month.

"So, I thank you for thanking me. I thank you," Riff said at the conclusion of Wednesday's hearing. "I'll tell you who you really need to thank is Judge Dillon. He did the hard work here, from what I observed from the outside looking in."