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Schwarzburds v. Kensington Police Protection & Community Services District Board

California Court of Appeals, First District, First Division

April 30, 2014

LEONARD SCHWARZBURD et al., Plaintiffs and Respondents,
v.
KENSINGTON POLICE PROTECTION & COMMUNITY SERVICES DISTRICT BOARD et al., Defendants and Appellants.

Contra Costa County Superior Court No. MSN121625, Hon. Steven K. Austin, Trial Judge

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[Copyrighted Material Omitted]

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COUNSEL

Hanson Bridgett: Kimon Manolius, Joseph M. Quinn, and Emily M. Charley for Defendants and Appellants.

Michael T. Risher for the American Civil Liberties Union Foundation of Northern California, Inc., as Amicus Curiae on behalf of Defendants and Appellants.

Law Offices of Mari E. Metcalf, Mari E. Metcalf; Law Offices of Timothy P. Rumberger and Timothy P. Rumberger for Plaintiffs and Respondents.

OPINION

Dondero, J.

Writ respondents the Kensington Police Protection and Community Services District Board (Board) and individual Board members

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Charles Toombs, Linda Lipscomb, and Richard Lloyd appeal from the trial court’s order denying their special motion to strike a writ petition under Code of Civil Procedure[1] section 425.16. The petition was filed by petitioners Leonard Schwarzburd, Dairlyn Chelette, Mabry Benson, Celia Concus, Llewellyn Stanton, Eyleen Nadolny, Cathie Kosel, Eyleen Nadolny, and Jeffrey Koehler. Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as “SLAPP” suits (strategic lawsuits against public participation). The trial court found the petition did not arise out of defendants’ protected expressive activity. We reverse as to the three individual defendants and affirm as to the Board.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Kensington is an unincorporated community of several thousand residents located just north of Berkeley.[2] It maintains its own police department via the Kensington Police Protection and Community Services District (District), which is organized under the Community Services District Law (Gov. Code, § 61000 et seq.) The District is governed by a board of directors. The Board consists of five board members. The Board sets the salary for the combined position of General Manager/Chief of Police, currently held by Greg Harman. Harman’s prior contract expired on June 30, 2012.

In advance of a July 12, 2012 Board meeting, a notice of agenda was posted that included the following item of business: “KPPCSD Board Vice President Tony Lloyd will present for Board discussion and possible action the salary compensation package for General Manager/Chief of Police Greg Harman for the July 1, 2012 – June 30, 2014 contract period.”

On July 12, 2012, discussion of Harman’s salary compensation package began at approximately 7:45 p.m. Lloyd addressed Harman’s performance. Next, Lipscomb compared salaries in other jurisdictions showing that Harman was “at the bottom” of the list.

The Board’s Policy and Procedures Manual (Manual)[3] states that meetings should adjourn at 10:00 p.m. unless extended by a four-fifths vote. Accordingly, the Manual provides that at 9:45 p.m., the Board “shall stop the progress of the meeting and suggest which of the remaining items on the agenda will be addressed in the remaining fifteen minutes of the meeting or ask the Board to consider whether it will extend the meeting....” At the

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July 12, 2012 meeting, at approximately 9:45 p.m., a vote was taken to extend the meeting. The result was three-to-two in favor of extension. The two Board members who voted against extending the meeting were petitioner Kosel and Mari Metcalf, attorney of record for petitioners here. The meeting ...


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