Legal Document: 24CV00267

On February 01, 2024 a SYVAA_Opp to Motion for Writ of Mandate was filed involving a dispute between and in the District Court of Santa Barbara County.

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1 Jana S. Johnston, SBN 229413
Mullen & Henzell LLP
2 112 East Victoria Street
Santa Barbara, CA 93101
3 Telephone: (805) 966-1501
Facsimile: (805) 966-9204
4 Email: jjohnston@mullenlaw.com

5 Attorneys for Respondent Santa Ynez Valley Airport
Authority, Inc.
6

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF SANTA BARBARA—COOK DIVISION

11 ROBERT PERRY, ) Case No.: 24CV00267
) [Related to Case No. 22CV04927]
12 Petitioner, )
v. )
13 ) OPPOSITION TO “MOTION FOR
SANTA YNEZ VALLEY AIRPORT ) WRIT OF MANDATE”;
14 AUTHORITY, INC., JOURDI de WERD, ) DECLARATION OF JANA S.
BRUCE McGOWAN, CAREY ) JOHNSTON AND EXHIBITS
15 KENDALL, GARTH CARRIER, JAMES )
CLELAND; ALLAN JONES )
16 )
Respondents. ) Date: April 18, 2024
17 ) Time: 8:30 a.m.
) Dept.: SM-4
18 ) Judge: The Honorable Jed Beebe
)
19 )

-1-
OPPOSITION TO MOTION FOR WRIT OF MANDATE
1

2 TABLE OF CONTENTS

3 I. INTRODUCTION. ............................................................................................................. 4

4 II. THE MOTION IS PROCEDURALLY DEFECTIVE ....................................................... 5

5 A. Petition Did Not Give Respondent Adequate Notice. ............................................... 5

6 B. The Motion was Procedurally Improper .................................................................... 6

7 C. Petitioner Must Seek Ordinary Mandamus ............................................................... 7

8 III. THE MOTION IS SUBSTANTATIVELY MERITLESS ................................................ 9

9 A. Introduction ................................................................................................................ 9

10 B. Threshold Substantive Defect ................................................................................... 9

11 C. Airport Authority’s Bylaws Authorize Expulsion ................................................... 10

12 D. Airport Authority Followed It’s Own Procedures .................................................. 11

13 1. Allegations of Misconduct Were Specifically Stated .............................. 12

14 2. Petitioner Was Given Notice of Allegations ............................................. 13

15 3. Petitioner Was Given Opportunity to be Heard on Allegations .............. 13

16 4. Board Members Matters Did Not Consider Matters Outside the Letter .. 15

17 E. The Administrative Procedures Act Does Not Apply ............................................. 17

18 IV. CONCLUSION ................................................................................................................. 18

-2-
TABLE OF CONTENTS
1 TABLE OF AUTHORITIES

2 California Cases

3 American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383 ................................ 4

4 Perry v. Santa Ynez Valley Airport Authority, Santa Barbara Superior Court, case no.

5 22CV04927 ............................................................................................................................. 15

6 Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4th

7 117............................................................................................................................................. 8

8 California Statutes

9 Code of Civil Procedure section 416.90 ................................................................................... 4

10 Code of Civil Procedure section 430.41 ................................................................................... 5

11 Code of Civil Procedure section 1005 ................................................................................... 5,7

12 Code of Civil Procedure section 1084 ...................................................................................... 8

13 Code of Civil Procedure section 1085 ...................................................................................... 8

14 Code of Civil Procedure section 1094.5 ................................................................................ 8,9

15 Evidence Code section 664 .................................................................................................. 9,10

16 Government Code section 11400-11475.70 ........................................................................... 17

17 Government Code section 11405.20 ....................................................................................... 18

18 Government Code section 11410.30 .................................................................................. 17,18

19 Government Code section 54950 ............................................................................................ 14

20 Other Authorities

21 Asimow, et al., California Practice Guide: Administrative Law (Rutter Group, Nov. 2023

22 update).............................................................................................................. 8,9,17,18

23 2 California Jurisprudence 3d (Feb. 2024 update) Administrative Law, § 407...................... 18

24 Garner, ed., Black’s Law Dictionary (11th ed. 2019), “good faith” ................................. 11,17

25 Edmon & Karnow, California Practice Guide: Civil Procedure Before Trial (Rutter Group,

26 June 2023 update), Ch. 9(1)-B, ¶ 9:88 .......................................................................... 6

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TABLE OF AUTHORITIES
1 Respondent Santa Ynez Valley Airport Authority, Inc., a California non-profit public

2 benefit corporation (“Airport Authority” or “Respondent”) opposes Petitioner Robert Perry’s

3 “Motion for Writ of Mandate.” The Motion is fatally defective, both procedurally and

4 substantively, and thus should be denied. 1

5 I. INTRODUCTION

6 Petitioner is a former member of the Airport Authority. The Airport Authority’s Board of

7 Directors voted to expel Petitioner from the Authority on October 5, 2023, based on violations of

8 the Airport Authority’s Bylaws.

9 Subsection 4.5.2(a) of the Airport Authority’s Bylaws (Ex. A to the Declaration of Jana

10 S. Johnston attached here [“Johnston Decl.”]) provides that a member may be expelled, “based

11 on the good faith determination by the board ... that the member has failed in material and

12 serious degree to observe the [Authority’s] rules of conduct, or has engaged in conduct

13 materially and seriously prejudicial to the purposes and interest of the” Airport Authority.

14 The Airport Authority was notified of six instances of conduct by Petitioner that were

15 alleged to be “materially and seriously prejudicial to the purposes and interests” of the Airport

16 Authority. The Airport Authority gave Petitioner notice of the alleged misconduct as required by

17 subsection 4.5.3(a) of the Bylaws. At the meeting at which Petitioner’s expulsion was to be

18 considered, Petitioner was given an opportunity to be heard, as required by subsection 4.5.3(b) of

19 the Bylaws. Petitioner took full advantage of that opportunity as shown by the purported

20 “transcript” that Petitioner provided in support of his Petition. (See Exhibits to Petition for Writ

21
1
22 Named respondents Bruce McGowan, Jourdi de Werd, Carey Kendall, Garth Carrier, James
Cleland, and Allan Jones are not parties to this Opposition. They have not been properly served
23 with process. The Proof of Service filed by Petitioner states that these individuals were served by
serving Dave Romero, Assistant Manager of the Airport Authority. (See Ex. B to Johnston
24
Declaration.) An individual must be served “by delivering a copy of the summons and of the
25 complaint to such person or to a person authorized by him to receive service of process.” (Code
Civ. Proc., § 416.90; see also American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th
26 383, 389.) Petitioner has not provided any evidence that Romero is authorized to receive service
of process on behalf of these individual respondents, and it is Petitioner’s burden to do so.
27 (American Express Centurion Bank v. Zara, supra, at p.387.) The only Proof of Service filed by
Petitioner that mentions McGowan is unsigned, and indicates that he was served as the agent for
28
service of process for the Airport Authority.
-4-
OPPOSITION TO WRIT OF MANDATE
1 of Mandate, Ex. D, pp. 30-39.) 2 After Petitioner was heard, respondents de Werd and McGowan

2 spoke about the misconduct alleged against Petitioner. The Board then voted to expel Petitioner.

3 Petitioner then filed this lawsuit.

4 Petitioner filed: (1) a “Petition for Alternative and Preemptory [sic] Writs of Mandate to

5 Compel the Santa Ynez Valley Airport Authority and its Directors to Reinstate Robert Perry as a

6 ‘Member’ of the Corporation” (“Petition”); (2) the present Motion, which seeks the same relief

7 that the Petition seeks; and (3) Exhibits to the Petition.

8 Petitioner’s request for writ relief, whether by the Petition or the present Motion, is

9 meritless. Respondent intends to file a demurrer to the Petition (Code Civ. Proc., § 1089), but has

10 been unable to persuade Petitioner’s counsel to engage in the pre-filing “meet and confer”

11 process required by Code of Civil Procedure section 430.41. Consequently, on March 11, 2024,

12 Respondent filed a declaration under section 430.41, subdivision (a)(2), for “an automatic 30-day

13 extension of time within which to file a responsive pleading.” The current deadline for

14 Respondent to file its response to the Petition is April 12, 2024.

15 This Opposition explains why Petitioner’s Motion should be denied. The arguments in

16 opposition to the substantive (as opposed to procedural) defects in Petitioner’s Motion largely

17 track the arguments Respondent intends to raise in its demurrer to the Petition.

18 II. THE MOTION IS PROCEDURALLY DEFECTIVE.

19 A. Petitioner did not give Respondent adequate notice of the Motion. That alone

20 is sufficient for the Court to deny the Motion.

21 “Unless otherwise ordered or specifically provided by law, all moving and supporting

22 papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., §

23 1005, subd. (b).)3 Petitioner’s Motion was originally set for hearing on March 6, 2024. It was

24
2
25 As discussed below, Petitioner did not file an administrative record. Instead, he filed a
compendium of exhibits that purportedly support his request for writ relief.
26
3
In connection with the prior ex parte, Petitioner argued that the Motion only requires 10 days’
27 notice. However, the reference to 10 days in Civil Code section 1088 that Petitioner relies does
not relate to the noticed motion procedure; it relates to “notice of application” relating to
28
procedures other than Petitioner’s Motion.
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OPPOSITION TO WRIT OF MANDATE
1 served on February 12, 2024. (Ex. B to Johnston Decl. (proofs of service).)

2 Sixteen court days before March 6, 2024, was February 9, 2024 – both February 19

3 (Presidents’ Day) and February 12 (Lincoln Day) were court holidays. Petitioner served this

4 Motion too late to be heard on March 6. He was required to give Respondent (as well as the other

5 respondents) 16 court days’ notice before the hearing date for the Motion, but he did not. Even

6 assuming that service on respondents was proper, Petitioner failed in the most basic of tasks –

7 counting court days.

8 Since the Court made its rulings on March 13, 2024, vacating the orders made on March

9 6, 2024; relating this case to Case No. 22CV04927; assigning the case to Judge Beebe for all

10 future proceedings; and setting a review hearing for April 15, 2024 (which was subsequently

11 changed by the Court to April 18, 2024), Respondent has not received any communication or

12 notice regarding the resetting of the Motion. Out of an abundance of caution, Respondent is

13 filing this Opposition in advance of the April 18, 2024 review hearing; however, Petitioner has

14 failed to give notice of any new hearing on the Motion.

15 The lack of proper notice of the hearing on the Motion – to Respondent, and to the other

16 named but as yet unserved respondents – is an adequate ground for denying the Motion. (See,

17 e.g., Edmon & Karnow, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group, June 2023

18 update) Ch. 9(I)-B, ¶ 9:88 [“Insufficient or defective notice may be waived if opposing counsel

19 shows up at the hearing and argues the merits of the motion.” (Italics added.)]; see also id., Ch.

20 9(I)-C, ¶ 9:101.2 [“Because there are no ‘defaults’ in law and motion matters, motions that are

21 technically insufficient or lack substantive merit may be denied notwithstanding lack of

22 opposition.”])

23 B. Even if Petitioner gave all respondents adequate notice of the hearing on the

24 Motion, the Motion is procedurally improper.

25 The Petition, Motion, and Exhibits were served on Respondent on February 12, 2024.

26 Respondent’s response to the Petition would be due on March 13, 2024, 30 days after the

27 Petition was served. (As discussed below, it does not appear that any of the other respondents

28 were properly served at all.)

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OPPOSITION TO WRIT OF MANDATE
1 But Respondent’s original opposition to the Motion – which asks the Court to grant the

2 same relief that the Petition seeks – would have been due on February 22, 2024, nine court days

3 before the March 6 hearing on the Motion. (Code Civ. Proc., § 1005, subd. (b).) (This, of course,

4 assumes that Petitioner gave adequate notice of the hearing date for the Motion under Code of

5 Civil Procedure section 1005(b), which, as shown above, he failed to do.) Thus, Respondent

6 would have had only 10 days (February 12 to February 22) to respond to Petitioner’s request for

7 writ relief.

8 Even treating the April 18, 2024 review hearing as a hearing on the Motion, because

9 Respondent’s response to the Petition is not even due until April 12, 2024, it is unreasonable for

10 Petition to argue that he should be entitled to seek all of the relief in the Petition within just 6

11 days of Respondent’s deadline to respond to the Petition, and without the opportunity for the

12 Court to hear Respondent’s demurrer to the Petition itself.

13 Petitioner’s tactic is no different from a plaintiff filing a personal injury complaint,

14 simultaneously filing a motion for an order that the he or she is entitled to all of the relief sought

15 in the complaint, and setting the motion for a hearing before defendant’s response to the

16 complaint is due. According to Petitioner, the Motion should be allowed to proceed as an

17 effective dispositive motion for summary judgment without complying with any of the notice or

18 other procedural requirements for such a motion, without submitting a statement of facts or

19 admissible evidence, and without allowing Respondent to file its demurrer and have it heard. To

20 say that such a tactic, if permitted, would upend civil litigation is an understatement. Yet that is

21 what Petitioner claims he is entitled to do.

22 Petitioner’s conduct is the definition of “sharp practice.” The Court should not tolerate it.

23 The Court should deny the Motion and set the Motion and Petition for hearing at the same time –

24 after all, they seek the identical relief.

25 But, as discussed in the rest of this Opposition, even if the Court approves Petitioner’s

26 tactic of shortening the time for Respondent to respond to his request for writ relief, the request,

27 whether made in the Petition or Motion, is utterly without merit.

28 ///

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OPPOSITION TO WRIT OF MANDATE
1 C. Petitioner must seek ordinary (traditional) mandamus, not administrative

2 mandamus.

3 The Petition does not state whether Petitioner is seeking administrative mandamus under

4 Code of Civil Procedure section 1094.5 or ordinary (traditional) mandamus under section 1085.

5 This is important. Petitioner’s Motion ambiguously indicates that Petitioner is seeking

6 administrative mandamus. (See Motion, 5:8 [“The issuance of ‘mandamus’ is authorized by CCP

7 § 1084 et seq., especially CCP § 1094.5,” followed by a purported “statement of the trial court’s

8 inquiry” under section 1094.5].)

9 Administrative and ordinary mandamus cannot be conflated. “[A]dministrative

10 mandamus’ is authorized by CCP § 1094.5. Section 1094.5 provides for review of state and local

11 adjudicatory decisions that result from legally required evidentiary hearings when no other

12 method of review is prescribed by statute.” (Asimow, et al., Cal. Practice Guide: Administrative

13 Law, supra, Ch. 13-C, ¶ 13:140 (italics added).) Ordinary mandamus is used to review agency

14 decisions that are not reviewable by administrative mandamus – i.e., decisions that are not the

15 result of legally required evidentiary hearings. (Id., Ch. 13-B, ¶ 13:45; see also id., Ch. 13-A, ¶

16 13:1 [adjudicatory decisions “are reviewed by traditional mandamus if they did not result from

17 an evidentiary hearing required by law,” citing Scott B. v. Board of Trustees of Orange County

18 High School of Arts (2013) 217 Cal.App.4th 117, 122-124 [no legally required evidentiary

19 hearing when student is dismissed from a charter school, so review is under section 1085, not

20 1094.5].)

21 Ordinary mandamus under section 1085, not administrative mandamus under section

22 1094.5, is the proper procedure for review of the Airport Authority’s expulsion of Petitioner.

23 “Review of adjudicatory action by traditional mandamus calls for the court to determine whether

24 the agency action was an abuse of discretion.” (Asimow, et al., Cal. Practice Guide:

25 Administrative Law, supra, Ch. 17-E, ¶ 17:651.) That is, the court’s review of the agency’s

26 action “is limited to determining whether the actions were arbitrary, capricious, entirely lacking

27 in evidentiary support or contrary to required legal procedures. [Citations.]” (Golden Drugs Co.,

28 Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 (internal quotation marks omitted)

-8-
OPPOSITION TO WRIT OF MANDATE
1 [administrative denial of pharmacy’s application for provisional Medi-Cal provider’s license;

2 reviewed under Code Civ. Proc., § 1085].)

3 Petitioner does not clear that hurdle. He doesn’t come close.

4 III. THE MOTION IS SUBSTANTIVELY MERITLESS.

5 A. Introduction

6 Petitioner’s argument appears to be that he was expelled from the Airport Authority

7 without a fair hearing.4 The Exhibits filed by Petitioner belie this claim. The Airport Authority’s

8 Bylaws authorize the expulsion of a member, Petitioner was given notice that he might be

9 expelled, he was given and took full advantage of the opportunity to argue against expulsion, and

10 the Board voted to expel him. Petitioner’s repeated complaint that there was no “sworn”

11 evidence against him (see, e.g., Motion, 2:2-3; 2:20-21; 4:16 [“not under oath”]; 4:22 [“never

12 even addressed ... under oath”]) ignores two important facts: (1) nothing in the Airport

13 Authority’s Bylaws requires “sworn” evidence to support the expulsion of a member; and (2)

14 Petitioner’s lengthy statement against being expelled from the Airport Authority, upon which

15 Petitioner relies, was itself “unsworn,” yet Petitioner never chastises himself for that lapse.

16 B. Threshold substantive defect: Petitioner failed to provide an administrative

17 record.

18 Petitioner explicitly relies on Code of Civil Procedure section 1094.5 for his request for

19 writ relief. (Motion, 5:8-11.) Petitioner has not filed an administrative record, as required by

20 section 1094.5, but instead filed a document he calls “Exhibits to Petition for Writ of Mandate.”

21 (As discussed below, those exhibits show that as a matter of law Petitioner is not entitled to the

22 relief he seeks.) “In any writ proceeding to review an administrative action, whether by way of

23 administrative mandamus or traditional mandamus, the petitioner bears the responsibility for

24 producing the administrative record. In the absence of the administrative record, petitioner

25
4
26 As discussed above, Petitioner’s expulsion is not a matter that resulted from an evidentiary
hearing required by law, and Petitioner does not provide any argument or support to the contrary.
27 To the extent that Petitioner wants to challenge the result, Petitioner is only entitled to seek
ordinary or administrative (and not administrative) mandamus, and to succeed Petitioner must
28
prove that the Airport Authority abused its discretion in expelling him.
-9-
OPPOSITION TO WRIT OF MANDATE
1 cannot overcome the [Evidence Code] § 664 presumption that an ‘official duty has been

2 regularly performed.’ [Citation.]” (Asimow, et al., Cal. Practice Guide: Administrative Law

3 (Rutter Group, Nov. 2023 update) Ch. 18-A, ¶ 18:1 (italics in original).) Moreover, if a

4 respondent decides not to provide an administrative record, that “does not relieve petitioner of

5 the duty to do so and cannot be the basis for overcoming the [Evidence Code] § 664 presumption

6 of regularity. [Citation.]” (Id., ¶ 18:5.)

7 The failure to provide an administrative record is illustrated best by Petitioner’s inclusion

8 with his exhibits of a purported “certified transcript” that includes a “Statement of Certification”

9 not from a court reporter, but from a “professional Typist and a Legal Document Assistant.” (See

10 Ex. D of Petitioner’s Exhibits.) It does not include any information about how the “transcript”

11 was prepared, i.e., it does not include any information regarding whether the “professional

12 Typist” was at the meeting and prepared the document based on listening to the meeting (which

13 does not appear to be the case because the “professional Typist” is identified as a “Virtual Legal

14 Assistant” who is located in Orange County), or whether the document was instead prepared

15 based on some recording or retelling of the meeting by a third party, etc.

16 For that reason alone, both the Petition and Motion should be denied. It’s akin to asking

17 the Court of Appeal to reverse a trial court judgment without providing an adequate record. But

18 even if the Court overlooks that fundamental failure, the Motion still should be denied.

19 C. The Airport Authority’s Bylaws authorize the expulsion of a member and

20 provide the procedure for doing so.

21 Section 4.5 of the Airport Authority Bylaws is titled “Termination and Suspension of

22 Membership.” Section 4.5 is comprised of subsections 4.5.1, 4.5.2, and 4.5.3, which provide the

23 procedure for removal of a member.

24 Subsection 4.5.1 states, “The membership of any member shall terminate upon

25 occurrence of any of the following events: ... (e) termination by the board, or a committee of

26 persons authorized by the board as provided by subsection 4.5.2 below.”

27 ///

28 ///

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OPPOSITION TO WRIT OF MANDATE
1 Subsection 4.5.2(a) states5:

2 A member may be expelled or suspended, under this subsection 4.5.2 of these bylaws,
based on the good faith determination by the board, or a committee or person authorized
3 by the board to make such a determination, that the member has failed in material and
4 serious degree to observe the corporation’s rules of conduct, or has engaged in conduct
materially and seriously prejudicial to the purposes and interest of the corporation. [Italics
5 added.]

6 The Bylaws do not define “good faith.” Black’s Law Dictionary, observing that “good

7 faith” is “an elusive idea, taking on different meanings and emphases as we move from one

8 context to another,” defines the term as: “A state of mind consisting in (1) honesty in belief or

9 purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial

10 standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to

11 seek unconscionable advantage.” (Garner, ed., Black’s Law Dictionary (11th ed. 2019), “good

12 faith.”)

13 Subsection 4.5.3 is titled “Procedure for Expulsion or Suspension.” It states:

14 If grounds appear to exist for expulsion or suspension of a member under subsection 4.5.2
of these bylaws, the procedures set forth below shall be followed:
15
(a) The member shall be given fifteen (15) days’ prior notice of the proposed
16 expulsion or suspension and the reasons for the proposed expulsion or suspension. Notice
shall be given by any method reasonably calculated to provide actual notice. Any notice
17
given by mail shall be sent by First Class or registered Mail to the member’s last address
18 as shown on the corporation’s records. Notice shall be deemed given (i) on the date of
receipt if hand delivered or (ii) three (3) days after deposit in the US Mail, if sent by First
19 Class or registered mail.
20 (b) The member shall be given an opportunity to be heard, either orally or in
writing, at least five (5) days before the effective date of the proposed expulsion or
21 suspension. The hearing shall be held, or the written statement considered, by the board or
by a committee or person authorized by the board to determine whether the expulsion or
22 suspension should take place.
23 (c) The board, committee, or person shall decide whether the member should
24 be suspended, expelled, or sanctioned in any way. The decision of the board, committee,
or person shall be final.
25
(d) Any action challenging an expulsion, suspension or termination of
26 membership, including a claim alleging defective notice, must be commenced within one
(1) year after the date of expulsion, suspension or termination.
27
5
Subsection 4.5.2(b) concerns suspended members. It is not applicable to this dispute –
28
Petitioner was expelled from the Airport Authority, not suspended.
-11-
OPPOSITION TO WRIT OF MANDATE
1 D. The Airport Authority followed its own procedures in expelling Petitioner.

2 The Petition and the Exhibits that Petitioner filed show that he was given all the process

3 he was due. The Airport Authority has rules for expelling members, and it followed those rules

4 in expelling Petitioner.

5 1. The allegations of misconduct were specifically stated.

6 Paragraph 4 of the Petition alleges that “sometime prior to September 7, 2023,” the

7 Airport Authority’s Board of Directors received an “unsworn” letter (“Letter”) setting out

8 complaints about Petitioner’s conduct and asking the Board to expel him from the Authority.

9 There is no requirement that allegations of misconduct by an Airport Authority member be

10 “sworn.” The Letter is part of Exhibit B of Petitioner’s “Exhibits to Petition for Writ of

11 Mandate.” The Letter sets out six complaints about Petitioner’s conduct, which the Letter’s

12 writers contended warranted expulsion of Petitioner 6:

13 1. Constantly posting inaccurate information about the airport on social media and in
the local news.
14
2. Calling a BOD [Board of Directors] member, a drunk at a meeting and stating they
15 should resign.

16 3. Then there is the mailing list. He has specifically told members who have asked to
be removed from his emails that he would not remove them. He has stated that “if they
17 want to be removed, they must resign from the Authority, so they are no longer on the list”.
(Probably not a direct quote but very close).
18
4. The law suit he filed against the airport had no merit and was thrown out of court
19 by two different court judges. It cost the airport over $18,000 to defend the frivolous
lawsuit. Mr. Perry has been asked at several board meetings to repay the defense cost to
20 the SYVAA-Kunkle Field. To date there has been no reply to the requests, nor any
repayment received.
21
5. The other big one is while apparently not regulated by the FAA for the Light Sport
22 Category, the Authority should not be associated with Mr. Perry flying our kids around the
valley considering his medical history. The SYVAA has a moral obligation and possible
23 legal liability if you condone this behavior while knowing of the potential for tragedy
should Mr. Perry have a medical event while flying children as a member of the SYVAA
24 during airport day.

25 6. At Mr. Perry’s Candidate’s Forum last year which he claimed was hosted by the
EAA Chapter. He then displayed the AOPA banner implying they were sponsors. The
26 AOPA does not sanction political events and their representative was livid when told that

27 6
Petitioner also complains that none of the authors of the Letter testified at the hearing at
which he was expelled. (Motion, 3:1-2.) He does not cite any Airport Authority Bylaw that
28
requires such testimony.
-12-
OPPOSITION TO WRIT OF MANDATE
Mr. Perry had used the AOPA logo. He has since been removed as an AOPA airport
1 representative for IZA-KUNKLE FIELD.
2 2. Petitioner was given notice of the allegations against him.

3 Subsection 4.5.3(a) of the Airport Authority’s Bylaws requires that a member who is to

4 be considered for expulsion be given 15 days’ notice of the proposed expulsion and the reasons

5 therefor. Paragraph 4 of the Petition admits that Petitioner got the required notice. It alleges that

6 “[t]he claims in the letter are the ONLY claims given to [Petitioner] 15 days prior to the

7 meeting” at which his expulsion would be taken up, pursuant to subsection 4.5.3. Thus,

8 Petitioner admits that he received timely notice of the claims set out in the Letter.

9 3. Petitioner was given – and took full advantage of – the opportunity to

10 be heard on the allegations against him.

11 Petitioner’s Exhibit D purports to be a “certified transcript of the portion of the meeting

12 relating to [Petitioner’s] termination ....” (Petition, ¶ 6.) But the so-called “transcript” is

13 “certified” by “a professional Typist and a Legal Document Assistant,” not by a certified

14 shorthand reporter. Regardless of this defect, the purported “transcript” puts the lie to

15 Petitioner’s claim that he was expelled as a member of the Airport Authority in violation of the

16 Airport Authority’s Bylaws. The so-called “transcript” demonstrates that Petitioner was allowed

17 to speak and did so at length. The “transcript” also shows that Petitioner was expelled based on

18 the complaints set out in the Letter, not on matters outside the Letter.

19 Petitioner’s statement in support of his claim that he should remain a member of the

20 Airport Authority begins on page 3, line 1, of the purported “transcript” (page 30 of the

21 Exhibits), and goes through page 12, line 14 (page 39 of the Exhibits). In those nine-and-a-half

22 pages, Petitioner went through all of the allegations against him in the Letter and explained why

23 he thought the allegations were not sufficient to justify expelling him from the Airport Authority.

24 The allegation that Petitioner was not allowed to be heard is belied by the very “transcript” that

25 he relies on.

26 Although Petitioner argued that the allegations were not sufficient to justify expelling

27 him, he did not deny most of those allegations. For example:

28 • He addressed the Letter’s first complaint, that he “[c]onstantly post[ed] inaccurate

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OPPOSITION TO WRIT OF MANDATE
1 information about the airport on social media and in the local news,” by stating that he didn’t

2 post that much inaccurate information; i.e., he attempted to parse the term “constantly.”

3 (Exhibits, 32:14 – 33:12 (“Transcript,” 5:14 – 6:12).)

4 • He then addressed the Letter’s second complaint, that he had called a Board of

5 Directors member a drunk at a meeting and called on the director to resign. He admitted this, but

6 excused it by stating that he did not call the Board member a drunk during a Board meeting, but

7 instead just prior to a Board meeting, and he later apologized to the Board member for calling

8 him a drunk. (Exhibits 33:12-23 (“Transcript,” 6:12-23).)

9 • Next, Petitioner addressed the Letter’s third complaint, that he refused to remove

10 Airport Authority members from his mailing list even though they specifically asked him to.

11 (Exhibits, 34:9 – 35:12 (“Transcript,” 7:9 – 8:12).) He did not deny this, but claimed it would be

12 a violation of the Brown Act if he did not send his e-mails to everyone. (Exhibits, 35:6

13 (“Transcript,” 8:6).) That defense misunderstands the Brown Act (Gov. Code, § 54950 et seq.).

14 The Act governs meetings of the legislative body of local agencies in California. It was enacted

15 to ensure the public’s ability to attend meetings of government agencies and to participate in the

16 legislative process. To the extent that Petitioner was intending to conduct Airport Authority

17 business by sending e-mails to other Airport Authority members, his emails violated the Brown

18 Act. If Petitioner was concerned about the Brown Act, he would not have sent the emails at all.

19 The Brown Act provides no support for his failure to respect requests to be excluded from his e-

20 mails.

21 • Next, Petitioner addressed the Letter’s fourth complaint, about his prior lawsuit

22 against the Airport Authority (Perry v. Santa Ynez Valley Airport Authority, Santa Barbara

23 Superior Court, case no. 22CV04927). (Exhibits, 35:12 – 36:2 (“Transcript,” 8:12 – 9:2).) He did

24 not deny that the lawsuit was dismissed or that it cost the Airport Authority more than $18,000 to

25 defend it – he simply said he would not repay the Authority for those costs.

26 • Petitioner then addressed the Letter’s fifth complaint, concerning his medical

27 condition. (Exhibits, 36:2-27 (“Transcript,” 9:2-27).) He said he would sue the Airport Authority

28 (“there will be a federal case big time”) if any of his medical history were made public. He said,

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OPPOSITION TO WRIT OF MANDATE
1 “[A]ll the operation that [he does] in the airplane fall[s] completely within FAA guidelines” and

2 that he is “completely legal as a pilot and as a flight instructor.” (Exhibits, 36:25-27

3 (“Transcript,” 9:25-27).)

4 • Finally, Petitioner addressed the letter’s sixth complaint, about the “candidate’s

5 forum” he hosted. (Exhibits, 36:27 – 38:15 (“Transcript,” 9:27 – 11:15).) He said that the

6 Aircraft Owners and Pilots Association (“AOPA”) “does support candidates forums” and that he

7 invited all four candidates (the election is unspecified) to such a forum, but only one showed up.

8 (Exhibits, 37:20-24 (“Transcript,” 10:20-24).) He denied that the AOPA was “livid” about the

9 forum and that he was removed from his position as a representative of the AOPA.

10 In sum, of the Letter’s six complaints against him, Petitioner only somewhat denied two.

11 And there is nothing in the Airport Authority’s Bylaws that requires every complaint against a

12 member to be proved in order for a member to be suspended or expelled.

13 Petitioner complains that he was not allowed to respond to the comments that Airport

14 Authority Board Members de Werd and McGowan made after Petitioner spoke (Motion, 3:5),

15 and that there was no evidence presented against him (other than the Letter) before he spoke (id.,

16 3:9-11). But Petitioner cites nothing that would require the hearing to be conducted exactly as he

17 would have liked. And he overlooks the fact that the “transcript” on which he relies shows that

18 he largely did not dispute the factual claims in the Letter, and instead argued that those facts

19 were not worthy of his expulsion. There were charges of misconduct against Petitioner, set out

20 in the Letter, which Petitioner admits he had notice of. He was given the opportunity – and took

21 full advantage of it – to rebut those charges. The Board voted to expel him. Petitioner doesn’t

22 want due process. He claims an entitlement – he is entitled to be a member of the Airport

23 Authority, regardless of what anyone else wants and regardless of what the Authority’s Bylaws

24 provide.

25 4. Contrary to Petitioner’s allegation, Airport Authority Board

26 Members de Werd and McGowan did not consider matters outside

27 the Letter in recommending that Petitioner be expelled.

28 Petitioner complains that “matters not in” the Letter were part of the basis for expelling

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OPPOSITION TO WRIT OF MANDATE
1 him. (Motion, 3:22 – 4:5.) That’s not true. The purported “transcript” on which Petitioner relies

2 proves it’s not true.

3 First, Respondent de Werd (Board Chair of the Airport Authority) spoke to item 4 of the

4 Letter – the prior lawsuit Petitioner filed. (Transcript, p. 13, ll. 9-27 (p. 40 of Exhibits).) He later

5 said that by proceeding with the prior lawsuit even after the Airport Authority’s extensive efforts

6 to meet-and-confer with him to resolve the matter, Petitioner “has engaged in conduct materially

7 or seriously prejudicial to the purpose and interest” of the Airport Authority. (Id., p. 14, ll. 8-9 (p.

8 41 of Exhibits); see also id. at ll. 23-26 [reiterating that Petitioner has engaged in conduct

9 materially or seriously prejudicial to purpose and interest of the Airport Authority, and that

10 Petitioner had been given proper notice of the matter].) Such conduct is a ground for expulsion

11 under subsection 4.5.2(a) of the Bylaws.

12 Next, de Werd spoke to item 3 of the Letter – Petitioner’s refusal to remove people from

13 his mailing list:

14 I find the fact that [Petitioner] would not remove people from his specific mailing list
reprehensible when you get specific request to remove the name, they did not want to
15 receive [Petitioner’s] emails anymore, if we remove them from our mailing list, which is
what he told them in not a very nice way, then they don’t receive any email from the airport
16 authority, they don’t get notices of agendas, they don’t get the opportunity to the minutes
[sic] necessarily, and they don’t get a chance to vote in the elections. I found that was just
17 tremendous disregard and it was very disrespectful to the members of the authority ....

18 (Transcript, p. 13, l. 27 – p. 14, l. 7 (pp. 40-41 of Exhibits).)

19 Respondent McGowan (Secretary of the Airport Authority’s Board) then spoke to the

20 first issue in the Letter – Petitioner’s posting inaccurate information about the airport on social

21 media and in the local news. (Transcript, p. 15, ll. 6-24 (p. 42 of Exhibits).) He said that “this is

22 the one thing that rises to the top for me.” (Id., p. 16, l. 1 (p. 43 of Exhibits).)

23 McGowan next spoke to the fifth issue raised in the Letter – Petitioner’s medical status.

24 (Transcript, p. 16, ll. 4-22 (p. 43 of Exhibits).)

25 De Werd then spoke to the second issue raised in the Letter – Petitioner calling a Board

26 member a drunk. (Transcript, p. 16, ll. 24-28 (p. 43 of Exhibits).) De Werd said that Petitioner

27 “[c]haracterized that his calling out our director and calling him a drunk ... because it was prior

28 to a meeting he tried to imply this this [sic] did not matter, because we had not started the

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OPPOSITION TO WRIT OF MANDATE
1 meeting there was no call to order. I was here and I witnessed that and it was disgusting, and it

2 was out of place and none of my directors deserved to be treated like that [....]” (Ibid.

3 (unbracketed ellipses in original; bracketed ellipses added).)

4 The Airport Authority Board voted to expel Petitioner because of the conduct alleged in

5 the Letter – conduct that the Board believed was “materially and seriously prejudicial to the

6 purposes and interest of the corporation,” and is a basis for expulsion under subsection 4.5.2(a)

7 of the Bylaws. There is no evidence that the Board members acted other than in good faith, i.e.,

8 with honesty of purpose, faithfulness to their duty or obligation, and without the intent to defraud

9 or seek unconscionable advantage. (Garner, ed., Black’s Law Dictionary, supra, “good faith.”)

10 E. The Administrative Procedures Act does not apply.

11 Petitioner’s discussion of the Administrative Procedures Act (Motion, 5:16 – 7:3) is a

12 “red herring,” designed to do nothing but mislead. The adjudicative provisions of the

13 Administrative Procedures Act – i.e., the statutes that govern the conduct of adjudicative

14 administrative hearings (Gov. Code, §§ 11400-11475.70) – do not apply to the Airport

15 Authority. Indeed, they do not apply to any “local agency” (Gov. Code, § 11410.30, subd. (b)),

16 which the APA defines as “a county, city, district, public authority, public agency, or other

17 political subdivision or public corporation in the state other than the state.” (Id., § 11410.30,

18 subd. (a) (italics added); see also 2 Cal.Jur.3d (Feb. 2024 update) Administrative Law, § 407

19 [“The APA general procedural provisions do not apply to a local agency except to the extent the

20 provisions are made applicable by statute.”]) The Law Review Commission Comments to

21 section 11410.30 state that “[l]ocal agencies are excluded because of the very different

22 circumstances of local government units when compared to state agencies.” “There were also

23 enormous political obstacles to sweeping local agencies under the APA umbrella. For example,

24 there is little separation of powers in local agencies. City or county councils often enjoy

25 combined legislative, executive and judicial power. Thus, it would be technically difficult to

26 draft adjudicatory provisions applicable to all local agencies. There is also little in common

27 between the procedures followed by large cities and small towns.” (Asimow, supra, Ch. 4-G, ¶

28 4:241.)

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OPPOSITION TO WRIT OF MANDATE
1 The Law Review Commission Comments to section 11410.30 also give examples of

2 instances in which the “administrative adjudication provisions of the Administrative Procedure

3 Act are made applicable by statute to local agencies” – all under the Education Code. (See also

4 Asimow, supra, ¶¶ 4:243 – 4:244 [citing statutes under Education Code and Firefighters

5 Procedural Bill of Rights].) There are no such statutes that would make the administrative

6 adjudication provisions of the Administrative Procedures Act applicable to the Airport Authority.

7 At the top of page 7 of the Motion, Petitioner states, “Here, the [Airport Authority] is a

8 state agency and the APA is applicable to it by its terms.” That statement is merely the argument

9 of counsel, unencumbered by any actual evidence that supports it. Indeed, the statement is

10 contradicted by paragraph 2 of the Petition, which alleges that the Airport Authority is a “public

11 benefit quasi-governmental corporation established by the County of Santa Barbara (a

12 subdivision of the State of California) to operate and manage the Santa Ynez Valley Airport

13 (also known as ‘Kunkle Field’).” (Italics added.)

14 The Airport Authority was required to follow its own rules – which it did – not the APA

15 rules for “hearing[s] for determin[ing] ... facts pursuant to which [the] agency formulates and

16 issues a decision.” (Gov. Code, § 11405.20.)

17 IV. CONCLUSION

18 Petitioner doesn’t want “due process.” He believes he is entitled to be a member of the

19 Airport Authority, no matter what anyone else wants and no matter how he conducts himself.

20 The (falsely) claimed lack of due process is just a pretext for asserting that claimed entitlement.

21 This is borne out by the very exhibits he claims support him. Petitioner’s “Motion for Writ of

22 Mandate” is fatally defective, both procedurally and substantively. The Court should deny it.

23 DATED: April 5, 2024 Mullen & Henzell LLP
24 By: _______________________________
Jana S. Johnston
25 Attorneys for Respondent Santa Ynez Valley
Airport Authority, Inc.
26

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OPPOSITION TO WRIT OF MANDATE
1 DECLARATION OF JANA S. JOHNSTON

2 IN SUPPORT OF OPPOSITION TO MOTION FOR WRIT RELIEF

3 I, Jana S. Johnston, declare:

4 1. I make the factual statements in this Declaration on personal knowledge.

5 2. I make this Declaration in support of respondent Santa Ynez Valley Airport

6 Authority, Inc.’s (“Respondent’s”) Opposition to Petitioner’s “Motion for Writ of Mandate.”

7 3. I am an attorney, licensed to practice law in the State of Ca

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