You are on page 1of 10
Grant Beuchel Esq. [113327] Attorney at Law 420 S. San Pedro Street #311 Los Angeles, CA 90013 (661) 428-7365 Attorneys for Petitioners THE SKID ROW NEIGHBHORHOOD COUNCIL FORMATION COMMITTEE, an. unincorporated association, on behalf of iselt ana all similarly situated Neighborhood Councils; JEFF PAGE, individually and in his oficial capacity as Chair of the SRNC-FC: ‘THERINE MCNENNY, individually and in fet official sapacty es Woriber of the SNC. FC; and DOES 1 through 3, as individuals and in their official capacities as members of the Skid Row Neighborhood Council Formation Committee, Petitioners, vs. CITY OF LOS ANGELES, a municipal enti ‘THE DEPARTMENT OF NEIGHBORHOOD. EMPOWERMENT, an administrative agency; THE CITY COUNCIL OF LOS ANGELES, a legislative body; GRAYCE LIU, in her official capacity as General Manager of ihe Department eghborhood Empowerment and DOES 7 through 50, inclusive, Respondents. DOWNTOWN LOS ANGELES NEIGHBORHOOD COUNCIL, a municipal entity (in the form of an advisory board), Real Party in Interest. In Respondent's “Opposition to Petitioner's Trial Brief in Support of Writ Petition”, on Page 6, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CASE NO. BS 170257 REPLY TO RESPONDENTS “OPPOSITION TO TRIAL BRIEF”; DECLARATION OF JEFF PAGE Trial Date: February 5, 2020 ) ) ) ) ) ) ) ) ) ) ) ) » ) ) i ) ) ) ) ) ) ) ) ) ) ) ) Section C, Line 23, Respondents state, "The burden of proof in a writ is always on the Petitioner to prove the facts in which the claim for relief is based.” While typically true, it is and was the Respondents obligation to tally the votes in the 2017 Skid Row Subdivision election. According to DONE’s 2016 Election Manual — the only manual available at} the time of the election ~ page 25 states: “XV. Tabulation of Votes and Election Certification For at poll only elections, EmpowerLA wil sponsible for tabulating the ballots and announcing the unofficial results on election day or as soon thereafter as possible. For electronic voting, Everyone Counts will tally online votes and provide the results to EmpowerLA at the close of the at poll election. EmpowerLA will combine the online votes with at poll votes and announce the unofficial results on election day or as soon thereafter as possible. The City Clerk will verify any provisional ballots for inclusion in the Final Official Certified Canvass if Votes. The Final Official Certified Canvass ‘of Votes shall occur on Election Day at the polling place barring the need to count any additional outstanding ballots. Note: “EmpowerLA", “DONE” and the “Department of Neighborhood Empowerment" are synonymous names that are used interchangeably by the City of Los Angeles. Allso, the Election Code for the City of Los Angeles,' starting at page 100, sets forth the specific requirements and duties of the City Clerk for maintaining and preserving ballot information, including the final vote tally. According to Respondents, the documents tallying the online votes were destroyed by Votem (ice. Everyone Counts) for “security reasons”, but whether this information exists or does not, all parties agree that the same was never provided to Petitioners during discovery or otherwise, notwithstanding the Motion to Compel. The failure to provide the very evidence needed to prove that Petitioners won the election creates, at a minimum, a negative inference that the missing documents would have contained information unfavorable to Respondents, to wit, that Petitioners did in fact win the election and the alleged final vote tally is a sham. Petitioners suggest that Respondents failure to address this issue is a party silence tantamount to an admission of wrongdoing, and that providing an overabundance of responses to ' See Exhibit SA, P0069 titled, “Election Code of the City of Los Angeles” 2 See declaration of Patricia Ursea July 12, 2019, Respondents opposition to Petitioners motion to compel (denied) page 1 lines 25-28. 2 Sec mrxrdsa4Herwn ll 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 discovery that add up to nothing’ is an apparent vain attempt to misuse both Petitioners and the court’s precious time, CACI jury instruetion No. 204 “Willful Suppression of Evidence™ states, “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” This jury instruction may be given when there is, as here, evidence of suppression. (In re: Estate of Moore (1919) 180 Cal. 570, 585 [182 P. 285]; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1051 [213 Cal.Rptr. 69]; County o: Contra Costa v. Nulty (1965) 237 Cal. App.2d 593, 598 [47 Cal.Rptr. 109.) The purpose of a trial is to arrive at the true facts. A trial is not a game where one counsel safely may sit back and refuse to produce evidence where in the nature of things his client is the only source from which that evidence may be secured. While a party is not under a duty to produce testimony adverse to themselves, if it fails to produce evidence that would naturally have been produced that party must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse. (Williamson v. Superior Court of Los Angeles County (1978) Cal.3d 829, 836 fi. 2 ; 148 Cal. Rptr, 39, 582 P.2d 126) When Plaintiffs (or here Petitioners) try to present evidence on a point essential to their case and can't because the documents have been destroyed by the other party, the court can infer that the evidence would have been adverse and adopt a reasonable interpretation of what the document would * Described by SRNC-FC member Katherine McNenny (in her Declaration attached to Petitioners Motion to ‘Compel- Reply Brief) as “gravely inconclusive and literally impossible to decipher” —a position which Respondent has not refuted — and if true, and Petitioners suggest that itis, would require this court to wade through an unreasonable mountain of incoherent evidence searching for any evidence that may authenticate the YES/NO vote tally for any “online” votes which is patently unreasonable, especially when such evidence cannot be found. * Judicial Council of California Civil Jury Instructions (2017 edition) Semir dhs FYE RPRYP PR BRN eke ee eee epee eraetBRESERSRRESEE would have said.S Aside from failing to address the issue that the City has not produced any evidence supporting their sham tally, they have also failed to address the key arguments in the Petitioners Causes of Action such as voting outside the proposed boundaries which was not allowed by the Subdivision Ordinance or establishing “Pop-Up” voting polls both within and outside of the proposed boundaries without prior approval and/or a directive from City Council. Atno time have Respondents established the validity of votes cast online or in “Pop-Up” polls during the 2017 Skid Row Subdivision election. Requests for Production of all voter tallies for each voting location were made in the course of this case, yet the City has provided nothing. In truth, Respondents have failed to establish that even a single online vote was actually cast in the 2017 Skid Row Subdivision election. ‘There is zero evidence that Respondents and/or their third- arty contracted vendor "Everyone Counts", who are identified by Respondents as administers of all online voting tabulations in the 2017 Skid Row Subdivision election, actually documented any of the alleged online votes in the 2017 Skid Row Subdivision election, How, then, can Respondents reverently claim that Petitioners have failed to fulfil their obligation of satisfying a burden of proof when it is clear that Respondents are cither intentionally withholding Pertinent evidence; do not have the required voter tallies which validate any and all official legally- binding elections in the State of California; or worse, have destroyed said evidence thus ereating an inference that what the documents contained would have been unfavorable to Respondents. Respondents cite on Page 1, Lines 21-23, an Ever morphing theory of liability’ in an attempt to | NTL, Inc. Security Litigation (Virgin Media) 2007 U.S. Dist. Lexis 6198 (S.D.N.Y. January 30, 2007) = "The ‘adverse inference’ can be quite damning at trial. Essentially, the adverse inference spoliation jury instruction ‘may be granted where a party fails to preserve evidence. In addition to granting the adverse inference instruction, the court also granted costs and attorney's fees to the requestors in connection with their motion, as “{t]here is no question that e-mails and documents that defendant NTL Europe should have produced to Plaintiffs were destroyed.” id. at *84. [See Also, “Virgin gets Hammered by Adverse Inference”, April 4, 1997 in Business Law] 4 Sow ran eon I 13 14 15 16 17 18 19 20 21 2 23 24 2 26 27 28 minimize the fact that Petitioners have had to do repeated Public Records Act requests to discover what happened and perform discovery in this action to force the disclosure of tightly held information maintained by the Respondents. It is not surprising that with more information being disclosed, Petitioners can more clearly articulate what happened and ask for redress. ‘The fact that this information| has not been immediately obtainable is due to Respondents actions and inactions and putting blame on Petitioners is disingenuous and referring to Petitioners theory as “pulp fiction” is disgraceful. Due to Respondent's blatant negligence, possible incompetence, or worse, intentionally destroying| key evidence, the burden of proof should shift to Respondents to prove that Petitioners did not win the election. The court in National vs. King Bio, 107 Cal.Appth 1336; 133 Cal.Rptr.2d 207 (2003) stated, in pertinent part: The shift in the burden of proof from the plaintiff to the defendant rests on a policy judgment that there is a substantial probability the defendant has engaged in ‘wrongdoing and the defendant's wrongdoing makes it practically impossible for the plaintiff to prove the wrongdoing. (See Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1426 [81 Cal.Rptr.2d 236].) Thus, the normal allocation of the burden of proof has been shifted in spoliation of evidence cases (ibid), negligence per se actions (MeGee v. Cessna Aircraft Co., supra, 139 Cal.App.3d at p. 190), and product liability cases based on design defect (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431 [143 Cal.Rptr. 225, 96 A.L.R.3d 1]). Even in these cases, however, the plaintiff has the burden of producing some evidence before the burden of proof is shified to the defendant. In spoliation of evidence cases, for example, the plaintiff must produce evidence that the defendant failed to preserve the evidence and establish a substantial probability of causation before the burden of proof shifts to the defendant to prove the failure to preserve the evidence did not cause damage to the plaintiff. (Galanek v. Wismar, supra, 68 Cal.App.4th at p. 1427.) [Emphasis Added] Here, there is no question that Respondents were responsible for administering the 2017 Skid Row Subdivision election, in conformance with the Subdivision Ordinance, and that this included the {abulating and preserving of all votes ~ a responsibility that without providing any validating evidence subsequently confirms they failed miserably. Petitioners have handily presented a prima facia case with overwhelming evidence and thus burden shifting is an option that would be within the discretion of this court Petitioners began disputing DONE’s tally results as early as April 10, 2017° via an email sent by Petitioner Jeff Page. Then, on August 18, 20177, the City was sent an official Preservation of Evidence letter regarding all election-related materials. Subsequently, Petitioner Katherine McNenny began requesting voter tallies via email in October of 20178. Despite all these verifiable requests by Petitioners for the City to produce the election tallies, the City failed in its duty to do so. The burden should therefore rest upon the Respondents to justify their conclusionary tally which would have included the online votes which allegedly caused Petitioners to lose the election. Further, for Respondents to withhold this key evidence, or worse destroy it, while pointing to Petitioner's inability to fulfill it's burden of proof, is disingenuous, egregious and disrespectful to the American judicial process and to this court Respondents are the only official governing body which regularly administers elections, and specifically the 2017 Skid Row Subdivision election. The numerous election law violations committed by Respondents were, and are, detrimental to the Skid Row Neighborhood Couneil- Formation ‘Committee's hope for a fair, quality and transparent process, In addition to the relief sought herein, Petitioners submit that this matter should be referred to the State Attomey General’s office for investigation into the City’s many improprieties, and allow that office to determine if further action is warranted, In July of 2019, Petitioners filed a Motion to Compel due to Respondent's inability to produce the necessary voter tallies. Petitioners now request that the court remain steadfast and not rule in favor of * See email from Petitioner Jeff Page (aka General Jeff) to the Department of Neighborhood Empowerment (DONE) dated [April 10, 2017 attached to the declaration of Jeff Page. 7 See Exhibit 62, POS78 tiled, “SRNC-FC Preservation Letter to DONE (August 18, 2017)". * See Exhibit 4, P0067 in the thumb drive titled, “Inconclusive DONE-provided election tally documents”. 6 Sear auaeun ll 13 4 15 16 7 18 19 20 21 22 23 25 26 27 28 Respondent's defense which is solely based on the existence of a lack of evidence which they themselves caused. Respondent's only defense is based on a technicality which only exists due to it’s own inability to preserve and provide previously requested voter tally data which they had a duty to protect and preserve. If Respondent's true desires were for a just outcome of said election, they would have immediately come forth with said voter tally data years ago when it was first requested. This ‘matter could have been concluded then. It is now nearly three (3) years since the 2017 Skid Row Subdivision election, which took place in April of that year and yet and still Respondents have not produced any evidence of a single vote which was cast online. Petitioners did not create this situation, the sole responsibility to administer this election lay with the City. The SRNC-FC had no other choice but to initiate litigation in hopes of finally obtaining the appropriate and just relief, which in this case would be an order for DONE to certify the 2017 Skid Row Subdivision election based upon the only mutually agreed upon and publicly tallied paper ballot votes, which were 183 "YES" votes to 19 "NO" votes - and that this should thereby be ruled as the official final vote count for the 2017 Skid Row Subdivision election. Respectfully Submitted, Grant Beuchel Attorney for the Skid Row Neighborhood Council-Formation Committee. Sema AUR wD 11 13, 14 15 16 7 18 19 20 2 22 23 4 25 DECLARATION OF JEFF PAGE 1, Jeff Page, declare as follows: 1am a Petitioner in this action and the principal founder of the Skid Row Neighborhood Council-Formation Committee and have been so since its original formation in 2014. On April 10, 2017 in my capacity as Chair of the Skid Row Neighborhood Council- Formation Committee (SRNC-FC), sent an e-mail titled “Request for Official Recount of SRNC election tallies” to the Department of Neighborhood Empowerment (DONE) - (DONE GM Grayce Liu, and DONE staff members Mike Fong, Stephen Box, and Mario Hernandez, along with DONE’s “elections” Portal). A true and correct copy of this email is attached to this declaration. The intent of my e-mail was to challenge the alleged “final vote tallies” from the 2017 Skid Row Subdivision election, which took place four (4) days prior on April 6, 2017. In my e-mail’s title, I clearly state “tallies” which automatically includes any and all online voting tallies. The second sentence specifically requests that said recount happen “in front of... Myself and others from our SRNC-FC...”. This proves SRNC-FC’s interest in viewing any and all election tallies, specifically individual votes cast, literally “with our own eyes”, which to this day stil is yet to happen. Further, the last sentence in my aforementioned e-mail requests clarification of the “remaining procedure regarding this process”. This clearly puts the onus on DONE in it’s official capacity as administrator of said election to provide all relevant information regarding a recount and/or the observance of any and all election tallies, including online voting tallies. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. This declaration was executed in the City of Los Angeles on January 15, 2020. Apr 10, 2017 at 5:32 PM “s ike Fong