LA uses judge's words to challenge his appointment of monitor

After finding Los Angeles' city leaders lacked the means to properly track the billions of dollars it annually spends on homelessness, a federal judge appointed a data monitor to ensure the city's compliance with a five-year encampment reduction agreement.

On Oct. 22, the city - represented by Gibson Dunn & Crutcher LLP - requested a pause in the case brought by the LA Alliance for Human Rights pending appeal of that appointment order.

In an ex parte application brief, the city argued U.S. District Judge David O. Carter "lacked authority" under the settlement's terms and his own comments during a hearing last month to unilaterally select the monitor - data expert Daniel Garrie - over the city's objections and without approval from the city council.

"This is an outcome that the City did not consent to," and "the City Council has not approved," the city's brief stated. "Section 7.2 of the parties' settlement agreement states that any monitor shall be 'mutually agreed upon' - which means, as the Court itself repeatedly acknowledged at the hearing on monitor selection, that the Court cannot unilaterally appoint someone over either party's objection."

The city's stay request, filed by Gibson Dunn partner Theane D. Evangelis, warned that without a pause of Carter's Oct. 14 order, Los Angeles would suffer irreparable financial harm amid its declared fiscal emergency. Evangelis also said it would risk undermining the independence of elected City Controller Kenneth Mejia, whom the judge ordered to assist Garrie "per Daniel Garrie's discretion."

An attorney representing the LA Alliance - Umhofer Mitchell & King LLP partner Matthew D. Umhofer - said in a phone interview Wednesday that he viewed the city's appeal and stay requests as a stalling tactic that reflects a broader unwillingness to follow through on its time-sensitive homelessness commitments.

"This is yet another example of the city reneging on its commitments on homelessness. The city agreed to a data monitor years ago and is now appealing an order implementing a data monitor," Umhofer said.

"One of the key pieces to this is that the city agreed to nearly 10,000 total encampment reductions, and it is now clear that it has not come anywhere near that and will not be able to meet that commitment. What's really happening here is the city struck a bargain, regrets it and is now trying to wriggle its way out of it by any means necessary."

In response, Evangelis, for the city, said in a statement: "The district court's order imposing an unapproved, unelected, and unfettered monitor over the City's strenuous objection violates the settlement agreement between the City and the Alliance and tramples democratic norms. The City remains hopeful that, upon reflection, the district court will self-correct or, if not, that the Ninth Circuit will step in to correct this overreach, which otherwise threatens to saddle the City with enormous costs and subject City officials to the dictates of an unelected third party."

Carter has been presiding over the case since it was filed in 2020, when the LA Alliance accused city leaders of failing to address the homelessness crisis. A settlement was reached two years later, requiring the city to build nearly 13,000 shelter beds by 2027 and document significant encampment reductions. LA Alliance for Human Rights et al. v. City of Los Angeles et al., 2:20-cv-02291 (C.D. Cal., filed March 10, 2020).

After a court-ordered audit and evidentiary hearing earlier this year, Carter found the city had committed "interim breaches" of the settlement - falling short on verification of its bed plan milestones and encampment reporting, though not endangering its overall 2027 target. While he rejected the Alliance's request for a receivership as "too extreme," Carter said the city's data failures justified the appointment of an independent monitor.

The city also appealed that order, which Umhofer said, paired with its newest appeal, reflects a broader effort to stall the case and avoid accountability.

"It's now clear the city has no intention of meeting its obligations under the agreement they signed," Umhofer said. "And I think it's particularly noteworthy that we keep hammering the city for this, they're declaring a fiscal crisis but spending millions on outside lawyers taking multiple appeals ... and doing a lot of things that are inconsistent with its stated goal of reducing encampment and getting people inside."

The city hired Gibson Dunn shortly before the evidentiary hearing in May. In September, the city council approved nearly $5 million for the firm's continued work - up from its original $900,000 contract, according to a memo from City Attorney Hydee Feldstein Soto.

Despite criticism from the Alliance, the city maintains - through prior statements by Evangelis - that findings on the record show it is in line with the settlement's 2027 deadline.

Before Carter's monitor order, the city urged him to reject Garrie, calling his proposed scope overly broad, his team "extremely costly," and his refusal to provide a budget, the city's application brief stated.

The city instead proposed that former Controller Ron Galperin and Mejia serve jointly as monitors and insisted that no appointment could take effect without city council approval. According to court filings in recent months, the parties could not agree on a monitor or the scope of work, delaying multiple council votes.

In Carter's monitor order, the judge cited a section of the settlement that purportedly allows him to resolve disputes "regarding the interpretation, performance or enforcement of this agreement" if the parties fail to do so "within a reasonable time."

According to the city clerk's website, the city council referred the matter to the Housing and Homeless Committee on Tuesday, a week after Carter's order.