By Mark Gutglueck
(July 9) With the August 17 trial date for the city of Ontario’s lawsuit against Los Angeles to determine ownership and management of Ontario Airport fast approaching, the Riverside County Superior Court judge hearing the matter this week ruled that Ontario will be allowed access to some but not all of the larger city’s internal documents Ontario’s lawyers contend will help prove their case.
For forty years, the joint powers arrangement forged by Ontario and Los Angeles in 1967 to have Los Angeles manage and operate Ontario Airport was considered to be highly beneficial to Ontario. The airport, which in 1967 saw fewer than 200,000 passengers pass through its gates, experienced unprecedented growth under Los Angeles’s tutelage, servicing 7.2 million passengers in 2007. Along the way, Los Angles instituted over $500 million worth of improvements to the airport, including paving its gravel parking lot, laying down a second and entirely new east-to-west runway over its obsolete northeast-to-southwest landing strip, and modernizing its existing east-to-west runway, including the widening of taxiways and the addition of storm drains. Ontario Airport’s landing and take-off paths were converted into the longest such civilian facility in Southern California, and Los Angeles further modernized its control tower, and constructed two ultra-modern terminals at a cost of $270 million, augmented with a world class concourse.
With the recession that hit the nation, state and region in 2007, however, ridership at Ontario Airport dropped off precipitously and continued to steadily decline for the next six years, reaching a low of 3.9 million in 2013. In June 2007, Gina Marie Lindsay, who had been the airport manager at Seattle Tacoma Airport, was hired as the executive director of Los Angeles World Airports, the corporate entity owned by the city of Los Angeles which operates Los Angeles International Airport, Ontario International Airport and Norwalk airport. Beginning in 2007, Los Angeles began an energetic modernization and expansion effort at Los Angeles International Airport. As a consequence of those improvements, and because airlines in response to the economic downturn began phasing out many flights to outlying hub airports such as Ontario while stepping up flights to airports located within major population centers, Los Angeles International saw its passenger totals increase.
By 2010, Ontario officials were becoming increasingly dismayed at the contraction of operations at Ontario Airport. Because the downturn in flights to Ontario and the improvements at/increased flights to Los Angeles International corresponded with Lindsey’s tenure, Ontario officials cited her management of Ontario Airport as a primary factor in the decline of Ontario Airport. They initiated a campaign to pressure Los Angeles to return ownership and management of Ontario Airport to the city in which it is located. When Los Angeles and Los Angeles World Airport officials resisted those calls, Ontario escalated its efforts, ratcheting up the level of rhetoric and acrimony in the campaign, openly accusing Los Angeles of purposefully neglecting Ontario Airport or of mismanaging the facility as part of a strategy to increase passenger traffic in Los Angeles. Lindsey became the focus of this vituperative campaign. Despite a boyhood acquaintance which had evolved into a friendship between then-Los Angles Mayor Anthony Villaraigosa and Ontario Mayor Paul Leon, Ontario was not able to effectively convince Villaraigosa to negotiate a mutually acceptable accommodation with regard to Ontario Airport. Instead, Villaraigoas and other Los Angeles officials became increasing disturbed by Ontario’s aggressive tactics. Ontario officials next pinned their hopes on developing alliances with both of the candidates who qualified for the May 2013 run-off for Los Angeles mayor, Wendy Gruel and Eric Garcetti. Ontario officials expressed hope that they would be able to make headway in dealing with Garcetti, who proved the eventual victor. Nevertheless, in June 2013, just prior to Garcetti being sworn in as mayor, Ontario sued Los Angeles, using the high-powered and well-connected Washington-D.C.-based law firm of Sheppard Mullin Richter and Hampton, which also has an office in Los Angeles, to represent it.
Ontario aggressively pursued the lawsuit, and Ontario Councilman Alan Wapner, in particular, was highly visible and vocal in asserting Ontario’s position outside the context of the court and Sheppard Mullin Richter and Hampton’s court filings.
Ontario had five prongs in its suit. The first prong was that the entire deal between Ontario and Los Angeles was invalid in that the Joint Powers Agreement was flawed and unenforceable. The second prong was that the transfer of the airport to Los Angeles in 1985 was illegal in that it had taken place as a consequence of a simple vote of the city council and should have entailed a full vote of the city’s electorate. The third prong was that Los Angeles had breached its contract with Ontario contained in the terms of the joint powers agreement. The fourth prong was breach of the fiduciary duty Los Angeles has toward Ontario as a consequence of the joint powers agreement. And the fifth prong is breach of good faith and fair dealing on the city of Los Angeles’s part.
The case was filed in Riverside Superior Court to avoid any conflicts that might occur because of bias toward one party or another in San Bernardino or Los Angeles counties. Judge Gloria Connor Trask is hearing the case in Riverside.
With regard to the first two prongs, Trask in February ruled that Ontario’s efforts to have the 1967 joint powers authority agreement invalidated and 1985 agreement giving Los Angeles the airport declared void had come too late and were barred by the statute of limitations even if the agreement and the transfer were flawed on legal or procedural grounds.
With two-fifths of Ontario’s lawsuit wiped out, Ontario’s lawyers are yet progressing toward trial next month, hoping to successfully litigate the case based upon breach of contract, breach of fiduciary duty and breach of good faith and fair dealing.
Last December, Ontario scored one of the few positive advances it has experienced in the case when Trask ruled that Los Angeles had to provide to Ontario over 2,000 internal Los Angeles city and Los Angeles World Airport documents sought by Ontario as part of the discovery process. Those included memos, emails, letters, communications and other materials relating to Los Angeles World Airport’s managerial and administrative actions regarding Ontario Airport. It is the theory of the Sheppard Mullin Richter & Hampton legal team representing Ontario, composed of attorneys Andre Cronthall, Scott Sveslosky and Catherine La Tempa, that among those documents is a smoking gun or several smoking guns showing that Los Angeles World Airport officials were indeed slighting Ontario Airport and doing so purposefully because they were trying to drive passengers away from Ontario to Los Angeles.
The attorneys for Los Angeles, however, did not fully comply with Trask’s order, claiming that 399 of the documents fall under attorney-client privilege, They appealed the ruling to the Fourth State Court of Appeals. Joshua Stambaugh, an attorney representing Los Angeles, asserted in January that many of the documents sought were communications from individuals who are not named in the suit and are not likely to be added as defendants to the suit. The self-evaluation and personnel files of a person who is not a defendant in the case are protected by the attorney-client privilege and the state Constitution’s right to privacy, Stambaugh said. Moreover, Stambaugh maintained that Los Angeles, in evaluating the sought-after documents, had learned that the 399 documents in question contain attorney-client information that is not discoverable.
In March the appeals court ruled that Trask should reconsider her decision. The appeals court did not direct Trask to prohibit Ontario from seeing any or all of the 399 documents in dispute, but suggested that a more rigorous evaluation with regard to them needed to be made.
After again hearing from Ontario’s lawyers on why they believe they have a right to examine the documents and after being briefed by Los Angeles’s lawyers as to why they consider the documents in question to be privileged, Trask this week provided her revised findings.
Ontario is not entitled to examine any of the documents it has sought from Los Angeles over which Los Angeles has staked a legitimate claim of attorney client confidentiality, Trask determined, basing that finding on what she said was a “boiler plate” assertion of attorney-client privilege made shortly after the litigation began in October 2013 relating to the documents. Since those documents are in fact privileged, Trask thus shut the door on Ontario either accessing them for evaluation or presenting them as evidence at trial.
“I don’t believe there is a waiver of either the attorney-client privilege or privacy,” Trask said. Trask directed Los Angeles to supply the court with a detailed list of the documents it has withheld from Ontario on the basis of attorney-client privilege together with an identification as to why the privilege applies. If Trask determines that the asserted privilege does not apply, it is possible those documents would be released, though that prospect is not likely.
The judge did make one finding in Ontario’s favor, ruling that the performance reviews given to Lindsey while she was Los Angeles World Airports’ executive director can be examined by Ontario. Los Angeles had asserted that Lindsey’s privacy rights as a public employee rendered the evaluations confidential and beyond the bounds of discovery. The judge did not uphold that claim, ruling that Lindsey’s expectation of privacy and the protection vouchsafed her under contract and law was “not absolute” and the court needed to “balance [Lindsey’s] right to privacy against the need for discovery. The balance weighs in favor of disclosure.”
Within the performance reviews, Trask said, will be an “assessment of whether or not she achieved her goals. Her goals may be very revealing and important to the issues at hand.” In essence, the judge suggested that the performance evaluations held the possibility of laying out whether or not Lindsey was being tasked by the city of Los Angeles to promote Los Angeles International Airport to the detriment of Ontario Airport, which, Trask said “is directly relevant to the issues in this action.” Trask gave Los Angeles 10 days to produce the documents relating to Lindsey. Lindsey stepped down as executive director of Los Angeles World Airports earlier this year after nearly eight years in the post.
On Thursday, Cronthall told the Sentinel, “Yesterday, Judge Trask granted in part and denied in part Los Angeles’s motion for privilege of certain documents. She ruled they were obligated within ten days to produce some performance evaluations for Gina Marie Lindsey, which by our count consists of approximately 113 pages. We will await production of those documents and evaluate them at that point. I can’t speculate or predict about what is in them until I see them. The judge also ruled the city of Los Angeles did not waive the right to attorney-client privilege over certain other documents we have sought. They have the same ten days to amend their privileged document log to include what they presume to be attorney-client privileged material. We will look and everyone will look at that and if it appears that they are properly described as attorney-client privileged, there will be no further issue. If it appears that they are not privileged or if there is controversy over that issue, there may be further conversation.”
Cronthall said that neither the judge nor a special master will be needed at this point to ascertain whether the documents in question are covered by attorney-client privilege. He said that based on the description of the documents which will include generic descriptions of the content, senders, recipients and participants, “we will be able to tell whether it is confidential or not or if it fits” the definition of confidential. He said it is possible that a document that was otherwise subject to attorney client confidentiality might lose that status and the confidentiality would be deemed “waived” if it was distributed to others beyond the law firm’s clients or the attorneys employed by the city of Los Angles and Los Angeles World Airports.
By Mark Gutglueck