Kate Scott et al v. City Council for the City of Santa Monica et al

Filing 12

ORDER by Judge Ronald S.W. Lew: Plaintiff's Application for Preliminary Injunction and Temporary Restraining Order is GRANTED 6 . Please refer to the Order for complete details. (kd).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 KATE SCOTT; JAMES BABINSKI, )
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Plaintiffs,
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v.
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14 CITY COUNCIL FOR THE CITY
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OF SANTA MONICA; DOES, 1
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15 through 10, inclusive,
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Defendants.
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CV 17-07329 RSWL (FFMx)
Order re: Application
for Temporary
Restraining Order and
Order To Show Cause re
Preliminary Injunction
[6]

I. INTRODUCTION
Currently before the Court is Plaintiffs Kate Scott

19 and James Babinski’s (“Plaintiffs”) Ex Parte
20 Application for Temporary Restraining Order and Order
21 to Show Cause re Preliminary Injunction [6]
22 (“Application”).

Specifically, Plaintiffs seek to

23 enjoin Defendant City Council for the City of Santa
24 Monica (“Defendant”) from taking any action to shorten
25 the runway of the Santa Monica Municipal Airport (the
26 “Airport”).
27 6-1.

Ex Parte Appl. (“Appl.”) 1:21-26, ECF No.

The Court, having reviewed all papers and

28 arguments submitted pertaining to this Application, NOW
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1 FINDS AND RULES AS FOLLOWS: the Court GRANTS
2 Plaintiffs’ Application [6].
II. DISCUSSION

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4 A.

Legal Standard

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1.

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Ex parte applications are for extraordinary relief.

Ex Parte Application

7 For ex parte relief to be granted, “the evidence must
8 show that the moving party’s cause will be irreparably
9 prejudiced if the underlying motion is heard according
10 to regular noticed motion procedures.”

Mission Power

11 Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492
12 (C.D. Cal. 1995).

The moving party also must be

13 without fault in creating the crisis that requires ex
14 parte relief, or that excusable neglect caused the
15 crisis.
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Id.

Pursuant to Local Rule 7-19.1, “[i]t shall be the

17 duty of the attorney so applying (a) to make
18 reasonable, good faith efforts orally to advise counsel
19 for all other parties, if known, of the date and
20 substance of the proposed ex parte application and
21 (b) to advise the Court in writing and under oath of
22 efforts to contact other counsel and whether any other
23 counsel, after such advice, opposes the application.”
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2.

Temporary Restraining Order

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Injunctive relief is an “extraordinary remedy.”

26 Winter v. Natural Res. Def. Council Inc., 555 U.S. 7,
27 22 (2008).

“Temporary restraining orders are governed

28 by the same standard applicable to preliminary
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1 injunctions.”

Niu v. United States, 821 F. Supp. 2d

2 1165, 1167 (C.D. Cal. 2011)(citation omitted); see Fed.
3 R. Civ. P. 65.

A plaintiff seeking a temporary

4 restraining order “must establish that he is likely to
5 succeed on the merits, that he is likely to suffer
6 irreparable harm in the absence of preliminary relief,
7 that the balance of equities tips in his favor, and
8 that an injunction is in the public interest.”

Winter,

9 555 U.S. at 20.
10 B.

Analysis

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1.

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Because Defendant plans to begin construction on

Ex Parte Application

13 October 9, 2017, Plaintiffs’ cause will be irreparably
14 prejudiced if the Court heard the matter on regularly
15 scheduled motion procedures.

See Appl., Ex. A.

16 Plaintiffs were not at fault in creating this crisis
17 because the City of Santa Monica sent out an email on
18 September 22, 2017, notifying recipients that
19 construction would begin October 9, 2017.

Decl. of R.

20 Christopher Harshman (“Harshman Decl.”) ¶ 10, Ex. A,
21 ECF No. 6-1.
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Plaintiffs complied with Local Rule 7-19.1(a) by

23 providing written notice of and a voicemail regarding
24 this Application.

Harshman Decl. ¶ 14.

Additionally,

25 Plaintiffs satisfied Local Rule 7-19.1(b) through
26 counsel’s assertion that Joanna Simon, an attorney with
27 Morrison Foerster, intends to oppose this Application
28 on Defendant’s behalf.

Id.

Based on the foregoing, ex
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1 parte relief is proper.
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2.

Temporary Restraining Order

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Plaintiffs successfully establish all of the

4 required elements to grant their Application and enjoin
5 Defendant from shortening the Airport runway.
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a.

Success on the Merits

Under California Public Utilities Code section

8 21664.5, an amended airport permit is required for
9 every airport expansion, including “acquisition of
10 runway protection zones” and “realignment of an
11 existing runway.”

While the department may provide

12 regulatory exemptions, it may not exempt the
13 requirement for public hearings pertaining to
14 environmental considerations.1
15 § 21664.5(a).

Cal. Pub. Util.

In Trancas Property Owners Association

16 v. City of Malibu, 41 Cal. Rptr. 3d 200, 210 (Ct. App.
17 2006), the court explained that California Public
18 Utilities Code “[s]ection 54956.9’s implied allowance
19 for adoption of settlements in closed
20 session . . . cannot be construed to empower a city
21 council to take or agree to take, as part of a non22 publicly ratified litigation settlement, action that by
23 substantive law may not be taken without a public
24 hearing and opportunity for the public to be heard.”
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“Environmental considerations include but are not limited
to noise, air pollution, and the burden upon the surrounding area
caused by the airport or airport expansion, including but not
limited to, surface traffic and expense.” Cal. Pub. Util. Code
§ 21666(e).
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Public hearings are to be conducted in accordance

2 with California Government Code section 11500 et seq.
3 Cal. Pub. Util. Code § 21669.6.

Under California

4 Government Code section 11501, California Government
5 Code section 11400 et seq.’s requirements apply to
6 Defendant’s operation of the Airport.
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Here, Defendant entered into a settlement agreement

8 (the “Settlement Agreement”), wherein it purportedly
9 acquires runway protection zones and realigns an
10 existing runway at the Airport.
11 23; Harshman Decl. ¶ 12.

ECF No. 6-6 at 19, 22-

To approve this Settlement

12 Agreement, Defendant held a closed session, preventing
13 public comment on the matter.

See Verified Am. Pet.

14 (“Pet.”), Exs. D, E, ECF No. 6-4.
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Thus, Plaintiffs will likely prevail at trial on

16 the merits of their claim that Defendant failed to
17 comply with the foregoing substantive law mandating a
18 public hearing for environmental considerations arising
19 from the terms of the Settlement Agreement. 2
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b.

Irreparable Harm

Plaintiffs argue that the proposed realignment will

22 force planes to fly approximately 100 feet lower in
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Plaintiffs also argue a public hearing was
required for the Airport’s nightly closures and ten-day
closure in December. Appl. 8:7-8. However, the
pertinent statute reads that “upon the request of an
affected or interested person, the department may
conduct a public hearing.” Cal. Pub. Util. Code
§ 21605 (emphasis added). Thus, Plaintiffs are not
likely to prevail on the merits of this ground.
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1 altitude, causing increased noise at the departure end
2 of the runway near adjacent neighborhoods.
3 Decl. ¶¶ 3-5.

Harshman

Plaintiff Kate Scott is a resident of

4 the Sunset Park neighborhood just west of the Airport.
5 Pet. ¶ 4.
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Additionally, Plaintiffs contend flight at lower

7 altitude over densely populated areas increases the
8 risk to pilots, such as by eliminating the ability to
9 turn back to land on the departure runway in the event
10 of engine or other mechanical failure.
11 ¶ 6.

Harshman Decl.

Plaintiff James Babinski regularly operates

12 aircraft at the Airport and enrolls in instrument
13 flying lessons at the Airport.
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Pet. ¶ 5.

These harms are irreparable because money damages

15 are inadequate for this kind of noise and danger.

See

16 Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,
17 545 (1987)(“Environmental injury, by its nature, can
18 seldom be adequately remedied by money damages.”).

In

19 addition, these harms are imminent as construction,
20 which is currently scheduled for October 9, 2017,
21 immediately will prevent planes from utilizing the
22 runway in its current state and taking off at the
23 corresponding altitude.
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c.

Balance of Equities and Public Interest

Plaintiffs request to maintain the status quo at

26 the Airport.

See Planned Parenthood of Greater Tex.

27 Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 509
28 (2013)(balance of harms tipped in applicants’ favor
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1 where injunction harmed defendant by delaying change to
2 longstanding status quo for few months, but without
3 injunction, applicants’ harm would be permanent).
4 Defendant failed to file an opposition and delineate
5 its potential harms from injunctive relief, leaving the
6 Court to speculate as to its harms.

Assuming the harms

7 are monetary losses from delayed construction, 3 “it
8 appears that many of these costs may be self-inflicted”
9 due to Defendant’s rush to begin shortening the runway.
10 Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002),
11 abrogated on other grounds by Winter, 555 U.S. at 22.
12 Thus, the balance of equities tips in Plaintiffs’
13 favor.

Finally, the public has a strong interest in

14 ensuring Defendant abides by California’s public
15 hearings requirements so that their interests are
16 fairly considered.
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As such, Plaintiffs have established all of the

18 elements for temporary restraining orders.
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III. CONCLUSION

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Accordingly, Plaintiffs’ Application is GRANTED.

21 Defendant and its employees, agents, and all persons
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Defendant apparently will spend $3.52 million to
complete construction by December 31, 2017. Appl., Ex.
C. This injunction will delay construction by two
weeks (pursuant to Federal Rule of Civil Procedure 65’s
time limit), but Plaintiffs are private individuals
obtaining an injunction against a governmental entity.
Therefore, they need only post a minimal bond. See
Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322,
323 (9th Cir. 1975)(finding $1,000 bond to be
reasonable).
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1 acting with them or on their behalf are hereby ORDERED
2 not to take any action to shorten the runway of the
3 Airport beginning immediately.
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Defendant also is ORDERED to show cause as to why

5 it should not be restrained and enjoined in the same
6 manner pending trial of this action.

Defendant must

7 file its response, if any, no later than October 13,
8 2017 at 4:00 p.m.

Plaintiffs must file any reply no

9 later than October 18, 2017 at 4:00 p.m., at which
10 point this Court will take the matter under submission.
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Plaintiffs shall serve a copy of this Order on

12 Defendant no later than October 9, 2017.

Additionally,

13 Plaintiffs are ORDERED to post a $5,000.00 bond or cash
14 in that amount by October 9, 2017 at 4:00 p.m.
15 IT IS SO ORDERED.
16 DATED: October 8, 2017

/s/ RONALD S.W. LEW

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HONORABLE RONALD S.W. LEW

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Senior U.S. District Judge

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