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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KATE SCOTT; JAMES BABINSKI, ) ) 12 Plaintiffs, ) ) 13 v. ) ) 14 CITY COUNCIL FOR THE CITY ) OF SANTA MONICA; DOES, 1 ) 15 through 10, inclusive, ) ) 16 Defendants. ) 17 18 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 1 1 FINDS AND RULES AS FOLLOWS: the Court GRANTS 2 Plaintiffs’ Application [6]. II. DISCUSSION 3 4 A. Legal Standard 5 1. 6 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. 16 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.” 24 2. Temporary Restraining Order 25 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 2 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 11 1. 12 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. 22 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 3 1 parte relief is proper. 2 2. Temporary Restraining Order 3 Plaintiffs successfully establish all of the 4 required elements to grant their Application and enjoin 5 Defendant from shortening the Airport runway. 6 7 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.” 25 26 27 28 1 “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). 4 1 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. 7 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. 15 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 20 21 b. Irreparable Harm Plaintiffs argue that the proposed realignment will 22 force planes to fly approximately 100 feet lower in 23 24 25 26 27 28 2 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. 5 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. 6 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. 14 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. 24 25 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 6 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. 17 As such, Plaintiffs have established all of the 18 elements for temporary restraining orders. 19 III. CONCLUSION 20 Accordingly, Plaintiffs’ Application is GRANTED. 21 Defendant and its employees, agents, and all persons 22 3 23 24 25 26 27 28 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). 7 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. 4 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. 11 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 17 HONORABLE RONALD S.W. LEW 18 Senior U.S. District Judge 19 20 21 22 23 24 25 26 27 28 8

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