1 LAW OFFICE OF FELIX TINKOV Felix Tinkov, State Bar No. 234276 2 225 Broadway, Suite 1900 San Diego, CA 92101 3 (619) 862-1761 [email protected] 4 Attorney for Petitioner Voice of San Diego 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION 9 VOICE OF SAN DIEGO, a California CASE NO. 10 corporation, VERIFIED PETITION FOR WRIT OF 11 Petitioner, MANDATE TO COMPEL COMPLIANCE WITH PUBLIC RECORDS ACT; 12 v. COMPLAINT FOR DECLARATORY AND PRELIMINARY AND PERMANENT 13 SAN DIEGO STATE UNIVERSITY; and INJUNCTION DOES 1-10, inclusive, 14 [Cal. Gov. Code §§ 6258 and 6259] Respondents. 15 16 17 18 INTRODUCTION 19 1. This action, brought pursuant to the California Public Records Act (Gov. Code § 6250 et 20 seq.) (“CPRA”) by Petitioner VOICE OF SAN DIEGO (“VOICE”), a news media outlet, challenges 21 the determination of Respondent SAN DIEGO STATE UNIVERSITY (“UNIVERSITY”), a public 22 institution, to withhold public records in its possession or control. 23 2. VOICE submitted seven related categories of CPRA requests to the UNIVERSITY in 24 search of the public institution’s records regarding the financing and development of the former San 25 Diego Chargers football stadium, and adjacent parking lot, site in the Mission Valley community of 26 San Diego, currently owned by the City of San Diego through its Public Utilities Department. A true 27 and correct copy of the CPRA requests made to the UNIVERSITY is attached as Exhibit “A,” wherein 28 each of the seven requests is individually presented as Exhibits “A-1” through “A-7.” 1 VERIFIED PETITION FOR WRIT OF MANDATE; COMPLAINT FOR INJUNCTIVE & DECLARATORY RELIEF 1 3. For four months the UNIVERSITY refused to produce any responsive records. 2 4. Claims were made that these records were protected from disclosure pursuant to the 3 attorney-client privilege and as attorney work product simply because the UNIVERSITY hired a law 4 firm to secure this information from sub-consultants that the firm had, in turn, hired at the 5 UNIVERSITY’s behest. Essentially, the UNIVERSITY posited (and, likely, still believes today) that 6 by transmitting public records through its outside legal counsel that all such documents could be kept 7 from the public’s view. 8 5. When VOICE threatened to pursue litigation under the CPRA for the release of responsive 9 documents, the UNIVERSITY released certain of the records sought, redacting some, yet withheld the 10 substance of the requests under a claim of deliberative process privilege pursuant to Government Code 11 § 6255. 12 6. The deliberative process privilege is intended to protect the development of policy from 13 public scrutiny, yet little to no policy is at issue in the instant case – rather, VOICE seeks the 14 UNIVERSITY’s records providing the expected expense, time and resources required to secure and 15 develop the Mission Valley stadium site, as analyzed by the UNIVERSITY’s consultants months ago, 16 so that they may be vetted by the public. 17 7. Further, the UNIVERSITY’s claim that it is still developing policy requiring all of the 18 responsive records be withheld is a sham. The UNIVERSITY has taken conclusory policy positions 19 regarding the funding of the purchase and development of the stadium site, released an initial 20 environmental study for the project pursuant to the California Environmental Quality Act (Public 21 Resources Code section 21000 et seq.; “CEQA”), and presented the scope of the project to over 115 22 groups, albeit, while offering little information about what lies under the hood. A true and correct copy 23 of the September 20, 2018 letter prepared by the UNIVERSITY’s Tom McCarron, Vice President for 24 Business and Financial Affairs & Chief Financial Officer, explaining that no student fees or taxpayer 25 funds would be needed to pay for the Mission Valley development, indicating a conclusive 26 understanding of the financing of the project, is attached as Exhibit “B.” A true and correct copy of 27 the UNIVERSITY’s conclusion that neither tax dollars, nor tuition or student fees will be relied upon 28 for the project, and specifically providing the funds required to develop the site, inclusive of the 2 VERIFIED PETITION FOR WRIT OF MANDATE, COMPLAINT FOR INJUNCTIVE & DECLARATORY RELIEF 1 generalized means to secure said financing, found on the UNIVERSITY’s Overview webpage 2 providing, found at http://missionvalley.sdsu.edu/planOverview.html, is attached as Exhibit “C”. A 3 true and correct copy of the CEQA Initial Study describing the scope of the Mission Valley 4 development, in detail, is attached as Exhibit “D.” A true and correct copy of the UNIVERSITY’s 5 Community Input and Engagement webpage for the Mission Valley development as of February 13, 6 2019, found at http://missionvalley.sdsu.edu/community-engagement.html, is attached as Exhibit “E.” 7 8. VOICE is keenly interested in the activities of the UNIVERSITY, as are thousands of its 8 readers. Seeing no opportunity to amicably secure the release of further responsive records from the 9 UNIVERSITY, VOICE is forced to resort to the instant litigation to ensure compliance with the CPRA. 10 PARTIES 11 9. Petitioner VOICE is a news media outlet based in and serving San Diego, California. As 12 one of only a handful of investigative local news sources, VOICE devotes extensive coverage to 13 matters of public interest with a focus on local government affairs. Relying upon the donations of an 14 interested and informed public, VOICE has a significant interest in investigating and reporting out to 15 its readership the region’s public agency expenditures, political maneuvering and governance 16 activities. 17 10. Respondent UNIVERSITY is a public agency of the State of California and is the custodian 18 of the public records at issue in this litigation. The UNIVERSITY has the administrative authority as 19 well as the legal responsibility under the CPRA to provide timely and complete records in its 20 possession and/or its control pursuant to requests made upon it. 21 11. Respondent Does 1-10 are sued under fictitious names. Their true names and capacities 22 are unknown to Petitioner. When their true names and capacities are ascertained, Petitioner will amend 23 this petition to assert them. Petitioner is informed and believes that each of the fictiously named 24 respondents is responsible in some manner for the occurrences herein alleged, and that the damages as 25 herein alleged were proximately caused by their conduct. 26 JURISDICTION AND VENUE 27 12. This Court has jurisdiction under California Government Code §§ 6258 and 6259, and 28 California Code of Civil Procedure § 1085. 3 VERIFIED PETITION FOR WRIT OF MANDATE, COMPLAINT FOR INJUNCTIVE & DECLARATORY RELIEF 1 13. Venue is proper in this Court, under San Diego Superior Court Rules, Rule 1.2.2 because 2 the causes of action alleged in this Petition arose in San Diego County, where the CPRA requests were 3 made and the documents are located. All parties to this litigation are located within San Diego County. 4 14. VOICE has performed all conditions precedent to filing this instant action and has 5 exhausted all available administrative remedies to the extent required by law. 6 15. VOICE has no plain, speedy and adequate remedy in the ordinary course of the law unless 7 this Court grants the requested Writ of Mandate to require the UNIVERSITY to release the public 8 records responsive to the seven categories of documents sought in VOICE’s September 20, 2018 9 request. Pursuant to Government Code § 6258, “[a]ny person may institute an action for injunctive or 10 declaratory relief or writ of mandate in any court of competent jurisdiction to enforce his right to 11 inspect or receive a copy of any public record or class of public records under this chapter.” 12 Government Code § 6259, which vests courts with the power to issue orders to enforce the CPRA, 13 requires a “verified petition to the superior court of the county where the records or some part thereof 14 are situated….” 15 16. In the absence of this Court’s action, the UNIVERSITY’s refusal to release public 16 documents will remain in effect and in violation of state law. 17 STATEMENT OF FACTS 18 17. For more than a decade, VOICE has regularly put forward, and relied heavily on, CPRA 19 requests to local, regional and state agencies to secure information for the public regarding government 20 activities which might otherwise go unnoticed or unreported. 21 18. Land use and education reporting are of particular importance to VOICE, having most 22 recently received awards for its excellence in journalism in these fields including the 2016 and 2018 23 San Diego Society of Professional Journalism Journalist of the Year Award for exposes leading to the 24 ouster of former San Diego Unified School District Board Trustee, Marne Foster, and San Diego 25 Association of Governments Executive Director Gary Gallegos, respectively, based on corrupt 26 practices, and the 2018 San Diego County Taxpayers Associaton Media Watchdog Award for 27 VOICE’s reporting on the failure of internal policies and lack of transparency at regional school 28 districts in failing to disclose sexual misconduct allegedly perpetrated by educators. 4 VERIFIED PETITION FOR WRIT OF MANDATE, COMPLAINT FOR INJUNCTIVE & DECLARATORY RELIEF 1 19. Following the 2017 departure of the National Football League’s San Diego Chargers 2 for the Los Angeles region, the City of San Diego was left with an approximately 166-acre stadium 3 site (“Site”), over $45,000,000 in debt, and little guaranteed revenue to pay this tremendous sum off.