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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
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA—COOK DIVISION
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11 ROBERT PERRY, ) Case No.: 24CV00267
) [Related to Case No. 22CV04927]
12 Petitioner, )
v. )
13 ) NOTICE OF DEMURRER AND
SANTA YNEZ VALLEY AIRPORT ) DEMURRER TO PETITION FOR
14 AUTHORITY, INC., JOURDI de WERD, ) WRIT OF MANDATE; “MEET AND
BRUCE McGOWAN, CAREY ) CONFER” DECLARATION OF JANA
15 KENDALL, GARTH CARRIER, JAMES ) S. JOHNSTON
CLELAND; ALLAN JONES )
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Respondents. ) FILED CONCURRENTLY: Answer to
17 ) Petition
)
18 ) Date: May 23, 2024
) Time: 8:30 a.m.
19 ) Dept.: SM4
) Judge: The Honorable Jed Beebe
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22 NOTICE OF DEMURRER TO PETITION FOR WRIT RELIEF
23 PLEASE TAKE NOTICE that on May 23, 2024, at 8:30 a.m., or as soon thereafter as
24 the matter may be heard in Department SM4 (Judge Beebe) of the above-entitled Court,
25 located at 312 East Cook Street, Building E, Santa Maria, CA, 93454, respondent Santa Ynez
26 Valley Airport Authority, Inc., a California non-profit public benefit corporation, will and
27 hereby does demur to Petitioner Robert Perry’s “Petition for Alternative and Preemptory [sic]
28 Writs of Mandate to Compel the Santa Ynez Valley Airport Authority and its Directors to
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 Reinstate Robert Perry as a ‘Member’ of the Corporation” (“Petition”), on the ground that the
2 Petition does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., §
3 430.10(e).)
4 This Demurrer is based upon this Notice and Demurrer, the Memorandum of Points and
5 Authorities in support of thereof, the “meet and confer” Declaration of Jana S. Johnston filed
6 herewith, the pleadings, records, and other documents on file in the above-referenced action,
7 pleadings, records, and other documents that the Court may judicially notice, and upon such
8 further oral and documentary evidence and argument as may be presented by counsel at or
9 prior to the hearing on this matter.
10 DATED: April 17, 2024 Mullen & Henzell LLP
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12 By: _______________________________
13 Jana S. Johnston
Attorneys for Respondent Santa Ynez Valley
14 Airport Authority
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 TABLE OF CONTENTS
2 DEMURRER. .............................................................................................................................. 6
3 MEMORANDUM IN SUPPORT TO PETITION FOR WRIT RELIEF.................................... 7
4 I. INTRODUCTION ........................................................................................................ 7
5 II. A DEMURRER TO A PETITION FOR WRIT RELIEF IS PROPER ...................... 8
6 III. ALLEGATIONS OF THE PETITION ...................................................................... 9
7 IV. PROCEDURAL DEFECTS IN THE PETITION ................................................... 12
8 A. The APA does not apply ......................................................................... 12
9 B. Petitioner must seek ordinary (traditional) mandamus, not administrative
10 mandamus ................................................................................................. 13
11 V. PETITIONER’S CLAIM FOR WRIT RELIEF FAILS AS A MATTER OF LAW ............ 15
12 A. The Airport Authority’s Bylaws ............................................................... 15
13 B. The Airport Authority followed its own procedures in expelling Petitioner
14 ......................................................................................................................... 17
15 1. The allegations of misconduct were specifically stated .................... 18
16 2. Petitioner was given notice of the allegations against him ............... 18
17 3. Petitioner was given—and took full advantage of—the opportunity to
18 be heard on the allegations against him ................................................. 18
19 4. Contrary to Petitioner's allegation, Airport Authority Board Members
20 de Werd and McGowan did not consider matters outside the Letter in
21 recommending the Petition be expelled ................................................. 21
22 VI. CONCLUSION.................................................................................................................... 22
23 “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON .................................. 23
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TABLE OF CONTENTS
1 TABLE OF AUTHORITIES
2 California Cases
3 Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95 .................................................................. 8
4 Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 ..................... 13
5 Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 597 ................................................... 8
6 Perry v. Santa Ynez Valley Airport Authority, Santa Barbara Superior Court, case no.
7 22CV04927 ................................................................................................................. 18
8 Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4th
9 117, 122-124 ............................................................................................................... 13
10 California Statutes
11 Cal. Civ. Proc. Code §430.10 ................................................................................................ 2,5
12 Cal. Civ. Proc. Code §430.30 ................................................................................................... 8
13 Cal. Civ. Proc. Code §430.41 ............................................................................................ 22,23
14 Cal. Civ. Proc. Code §1084 .................................................................................................... 13
15 Cal. Civ. Proc. Code §1085 ............................................................................................... 12,13
16 Cal. Civ. Proc. Code §1089 ...................................................................................................... 7
17 Cal. Civ. Proc. Code §1094.5 ............................................................................................ 12,13
18 Government Code § 11400-11475.70 ..................................................................................... 11
19 Government Code § 11405.20 ............................................................................................. 7,12
20 Government Code § 11410.30 ............................................................................................. 7,12
21 Government Code § 54950 et seq. .......................................................................................... 17
22 Other Authorities
23 2 C.E.B. Cal. Administrative Mandamus (3d ed., May 2022 update). .................................. 7,8
24 2 California Jurisprudence 3d (Feb. 2024 update) Administrative Law, § 407 ...................... 12
25 Asimow, et al., Cal. Practice Guide: Administrative Law (Rutter Group, Nov. 2023 update)
26 ................................................................................................................................ 12,13
27 Garner, ed., Black’s Law Dictionary (11th ed. 2019) ............................................................. 15
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TABLE OF AUTHORITIES
1 DEMURRER
2 Respondent Santa Ynez Valley Airport Authority demurs to the Petition on the
3 following ground:
4 1. The Petition fails to state facts sufficient to constitute a cause of action for writ relief.
5 (Code Civ. Proc., § 430.10, subd. (e).)
6 DATED: April 17, 2024 Mullen & Henzell LLP
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8 By: _______________________________
9 Jana S. Johnston
Attorneys for Respondent Santa Ynez Valley
10 Airport Authority
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 MEMORADUM IN SUPPORT OF DEMURRER TO PETITION FOR WRIT RELIEF
2 I. INTRODUCTION
3 Robert Perry (“Petitioner”) is a former member of Respondent Santa Ynez Valley
4 Airport Authority (“Airport Authority” or “Authority”). The Airport Authority’s Board of
5 Directors voted to expel Petitioner from the Authority on October 5, 2023, based on violations
6 of the Airport Authority’s Bylaws.
7 Subsection 4.5.2(a) of the Bylaws provides that a member may be expelled, “based on
8 the good faith determination by the board ... that the member has failed in material and serious
9 degree to observe the [Authority’s] rules of conduct, or has engaged in conduct materially and
10 seriously prejudicial to the purposes and interest of the” Airport Authority.
11 The Airport Authority was notified by letter of six instances of conduct by Petitioner
12 that were alleged to be “materially and seriously prejudicial to the purposes and interests” of
13 the Authority. The Airport Authority gave Petitioner notice of the alleged misconduct as
14 required by subsection 4.5.3(a) of the Bylaws. Indeed, Petitioner admits in his verified Petition
15 that he received proper notice of the six instances of alleged misconduct. At the meeting at
16 which Petitioner’s expulsion was to be considered, Petitioner was given an opportunity to be
17 heard, as required by subsection 4.5.3(b) of the Bylaws. Petitioner took full advantage of that
18 opportunity as shown by the purported “transcript” that Petitioner provided in support of his
19 Petition. (See “Exhibits to Petition for Writ of Mandate,” pp. 30-39.) 1 After Petitioner was
20 heard, respondents Jourdi de Werd and Bruce McGowan 2 spoke about the misconduct alleged
21 against Petitioner. The Board voted to expel Petitioner. Petitioner then filed this action.
22 This is not Petitioner’s first rodeo. In December 2022, Petitioner, in pro per, filed a
23 “Verified Petition for Writ of Mandate; Complaint for Declaratory and Injunctive Relief,”
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Petitioner did not file an administrative record. Instead, he filed a compendium of
25 exhibits that purportedly support his request for writ relief.
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Petitioner also sued the following Airport Authority Board members, who voted to
expel him: Board President de Werd, Board Secretary McGowan, Garth Carrier, James
27 Cleland, Alan Jones, and Carey Kendall. None of those respondents has been properly served
28 with the Petition.
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 along with a “Notice of Motion and Motion for Writ of Mandate.” (Santa Barbara Superior
2 Court, case no. 22CV04927.) That action, filed solely against the Airport Authority, alleged
3 that the Authority failed to follow its own rules and violated Petitioner’s constitutional free
4 speech rights by not reappointing him to the Bylaws Committee – i.e., that Petitioner (and,
5 presumably, every other member of the Airport Authority) had a constitutional right to be a
6 member of the Bylaws Committee (and, presumably, any other Airport Authority Committee).
7 The Airport Authority demurred to the Petition, and the Court sustained the demurrer without
8 leave to amend. (The Motion was thus rendered moot.) Now Petitioner is back, this time
9 claiming that his constitutional rights were violated when the Board voted to expel him from
10 the Airport Authority.
11 The Airport Authority’s argument is simple: Petitioner was given notice of the conduct
12 that could lead to his expulsion, and he was allowed to be heard on the matter. The Board
13 disagreed with his arguments and found that his conduct warranted expulsion. The Authority
14 followed its own Bylaws in expelling Petitioner. All of this is confirmed by the Petition and
15 Exhibits that Petitioner filed. As is proper when ruling on a demurrer, the Court need look no
16 further than the Petition and Exhibits to determine that the Petition fails as a matter of law.
17 The Petition’s references to the Administrative Procedures Act (“APA”) are a classic
18 “red herring,” designed to do nothing more than mislead the Court. The adjudicative provisions
19 of the APA do not apply to the Airport Authority – indeed, they do not apply to any “local
20 agency.” (See Gov. Code, § 11410.30, subd. (a), (b).) The Airport Authority was only required
21 to follow its own rules – which it did – not the APA rules for “hearing[s] for determin[ing] ...
22 facts pursuant to which [the] agency formulates and issues a decision.” (Gov. Code, §
23 11405.20.)
24 II. A DEMURRER TO A PETITION FOR WRIT RELIEF IS PROPER.
25 A party on whom a writ petition is served may respond by answer, demurrer, or both.
26 (Code Civ. Proc., § 1089; see also 2 C.E.B. Cal. Administrative Mandamus (3d ed., May 2022
27 update) § 12.1.) The Airport Authority is filing this Demurrer and simultaneously filing an
28 Answer to the Petition. “In most respects, the procedure applicable to demurrers in ordinary
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 civil actions also applies to administrative mandamus proceedings.” (2 C.E.B. Cal.
2 Administrative Mandamus, supra, §12.6.) Failure to state facts sufficient to constitute a cause
3 of action for writ relief is a ground for demurring to a writ petition. (Id., §12.7.)
4 A demurrer is directed to the face of the complaint and matters subject to judicial
5 notice. (Code Civ. Proc., § 430.30, subd. (a).) The “face of the complaint” includes matters
6 shown in exhibits attached to the complaint and incorporated by reference. (go v. O’Connell
7 (2005) 134 Cal.App.4th 91, 95; see also Nealy v. County of Orange (2020) 54 Cal.App.5th
8 594, 597 [“in the event of a conflict between the pleading and an exhibit, the facts contained in
9 the exhibit take precedence over and supersede any inconsistent or contrary allegations in the
10 pleading” (citation and internal quotation marks omitted)].)
11 III. ALLEGATIONS OF THE PETITION
12 Paragraph 3 of Petition alleges that subsections 4.5.1, 4.5.2, and 4.5.3 of the Airport
13 Authority’s Bylaws provide the procedure for removal of member. These subsections are set
14 out in full below, in Part IV.B. They are also part of Exhibit A to Petitioner’s “Exhibits to
15 Petition for Writ of Mandate.”
16 Paragraph 4 of the Petition alleges:
17 In an undated and unsworn letter to the [Airport Authority] Board
sometime prior to September 7, 2023, certain members and at least one
18 non-member of [the Airport Authority], several of whose signatures
are illegible, delivered a letter to the Board claiming to be “members”
19 of some non-entity known as the “SYVAA-Kunkle Field[ 3]
Supporters” saying they would “like the [Airport Authority] Board of
20 Directors to remove [Petitioner] from the membership per section 4.5.2
of the bylaws.” The letter [Ex. B to the Petition] asserts that
21 “[Petitioner’s] actions over the past few years have been a constant
detriment to the community, to the membership and the airport as a
22 whole.” The letter, not under oath, goes on to say the [sic] “only a few
of the reasons are” ... and then lists 6 items without any “evidence” or
23 names of allegedly affected people, or any specification.
24 (Pet., ¶ 4 (ellipses and internal quotation marks in original).)
25 Petitioner makes much ado about the letter (“Letter”) requesting the Airport Authority
26 Board to take up the matter of Petitioner’s expulsion being “unsworn,” “not under oath,” and
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Paragraph 2 of the Petition alleges that the Santa Ynez Valley Airport is also known as
28 Kunkle Field.
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 “without evidence.” But the Bylaws contain no requirement that any communication to the
2 Board requesting the expulsion of a member be under oath or set out evidence to support the
3 request. To the extent Petitioner insinuates to the contrary, he is not being truthful.
4 Paragraph 4 of the Petition further alleges that “[t]he claims in the letter are the ONLY
5 claims given to [Petitioner] 15 days prior to the meeting” at which his expulsion would be
6 discussed. Thus, Petitioner admits he received timely notice of the claims set out in the Letter.
7 And, as shown in this Demurrer, those are the only claims that were the basis of Petitioner’s
8 expulsion. Petitioner’s claim to the contrary is belied by the purported transcript of the hearing
9 at which Petitioner was expelled – the very transcript that Petitioner relies on.
10 Finally, Paragraph 4 of the Petition sets out the complaints against Petitioner, along
11 with his comments about the complaints’ veracity. Exhibit B to the Petition purports to consist
12 of the “minutes” of the September 7, 2023 Board meeting for the Airport Authority (although it
13 reads as if it is the pre-meeting agenda, rather than the post-meeting minutes). The Letter is
14 included in Exhibit B. The Letter sets out six complaints about Petitioner’s conduct, which the
15 authors contended warranted expulsion:
16 1. Constantly posting inaccurate information about the airport
on social media and in the local news.
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2. Calling a BOD [Board of Directors] member, a drunk at a
18 meeting and stating they should resign.
19 3. Then there is the mailing list. He has specifically told
members who have asked to be removed from his emails that he would
20 not remove them. He has stated that “if they want to be removed, they
must resign from the Authority, so they are no longer on the list”.
21 (Probably not a direct quote but very close).
22 4. The law suit he filed against the airport had no merit and
was thrown out of court by two different court judges. It cost the
23 airport over $18,000 to defend the frivolous lawsuit. Mr. Perry has
been asked at several board meetings to repay the defense cost to the
24 SYVAA-Kunkle Field. To date there has been no reply to the requests,
nor any repayment received.
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5. The other big one is while apparently not regulated by the
26 FAA for the Light Sport Category, the Authority should not be
associated with Mr. Perry flying our kids around the valley considering
27 his medical history. The SYVAA has a moral obligation and possible
legal liability if you condone this behavior while knowing of the
28 potential for tragedy should Mr. Perry have a medical event while
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
flying children as a member of the SYVAA during airport day.
1
6. At Mr. Perry’s Candidate’s Forum last year which he
2 claimed was hosted by the EAA Chapter. He then displayed the AOPA
[Aircraft Owners and Pilots Association] banner implying they were
3 sponsors. The AOPA does not sanction political events and their
representative was livid when told that Mr. Perry had used the AOPA
4 logo. He has since been removed as an AOPA airport representative
for IZA-KUNKLE FIELD.
5
6 Paragraph 5 of the Petition alleges that Petitioner’s membership in the Airport
7 Authority was terminated at the meeting of October 6, 2023, on the motion of Board President
8 Jourdi de Werd, seconded by Board member Garth Carrier, and supported by Board Secretary
9 Bruce McGowan and Board members Carey Kendall, James Cleland, and Alan Jones.
10 Paragraph 6 of the Petition alleges that at the meeting at which Petitioner was expelled
11 from the Airport Authority, “there was no testimony offered by any witness against”
12 [Petitioner] and “no sworn statement provided in support of any of the claims” in the Letter.
13 There is no requirement under subsections 4.5.1, 4.5.2, or 4.5.3 of the Airport Authority’s
14 Bylaws that the expulsion of a member requires a “sworn statement.” Moreover, Petitioner
15 neglects to mention that his own lengthy statement at the meeting in opposition to expulsion
16 was not under oath. Petitioner also fails to mention that the statements given by de Werd and
17 McGowan at the meeting stated their personal knowledge of the allegations against Petitioner.
18 Paragraph 6 of the Petition then states that Exhibit D to the Petition is a “certified
19 transcript of the portion of the meeting relating to [Petitioner’s] termination ....” The so-called
20 “transcript” is “certified” by “a professional Typist and a Legal Document Assistant,” not by a
21 certified shorthand reporter. Regardless of this defect, however, the purported “transcript” puts
22 the lie to Petitioner’s claim that he was expelled as a member of the Airport Authority in
23 violation of the Authority’s Bylaws.
24 Paragraph 7 of the Petition alleges that after Petitioner spoke at the October 6, 2023
25 meeting, de Werd and McGowan spoke, “relaying their support for the motion and claiming
26 facts outside the Ex. B letter and refusing to let [Petitioner] speak. No one else spoke in favor
27 of or against the Motion. Neither statements were under oath or provided ‘evidence’ or factual
28 testimony .... Mr. de Werd invited the other board members to ‘follow your hearts on this one’
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
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1 ... but he surely did not refer to any ‘evidence’ justifying termination” of Petitioner’s
2 membership.
3 In complaining that de Werd’s and McGowan’s statements were not under oath,
4 Petitioner again neglects to mention that his statement was not under oath either. Moreover,
5 Petitioner was allowed to speak – at length – in his own defense. He spoke first. Then de Werd
6 and McGowan spoke. Petitioner was not allowed to respond to their statements during the
7 Board discussion. There is no requirement that he be allowed to do so.
8 Paragraph 8 of the Petition complains that Petitioner was not allowed to respond to de
9 Werd’s and McGowan’s comments.
10 Paragraph 10 of the Petition alleges that the Board did not follow the APA in
11 terminating Petitioner’s membership in the Airport Authority and thus deprived him of due
12 process. “Here, the only two people providing comment at the meeting (unsworn statements
13 [like Petitioner’s]) were two of the directors who voted to terminate [Petitioner] and each
14 claimed their vote was not based on the facts in the Ex. B letter.” (Pet., ¶ 10 (italics added).)
15 But as discussed below, the APA does not apply to the Airport Authority. Moreover,
16 Petitioner’s claim that the two directors (de Werd and McGowan) “claimed their vote was not
17 based on the facts in” the Letter is contradicted by the very “transcript” Petitioner relies on.
18 Paragraph 11 of the Petition alleges that Petitioner’s membership in the Airport
19 Authority was terminated in violation of the APA. Again, the APA does not apply to the
20 Airport Authority.
21 IV. PROCEDURAL DEFECTS IN THE PETITION
22 A. The APA does not apply.
23 Paragraph 2 of the Petition alleges that the Airport Authority is a “public benefit quasi-
24 governmental corporation established by the County of Santa Barbara (a subdivision of the
25 State of California) to operate and manage the Santa Ynez Valley Airport .... As such, it is
26 subject to the obligations of the California Administrative Procedures Act .... (Italics added.)
27 The adjudicative provisions of the APA – i.e., the statutes that govern the conduct of
28 adjudicative administrative hearings (Gov. Code, §§ 11400-11475.70) – do not apply to the
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
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1 Airport Authority. Indeed, they do not apply to any “local agency.” (Gov. Code, § 11410.30,
2 subd. (b).) A “local agency” is “a county, city, district, public authority, public agency, or other
3 political subdivision or public corporation in the state other than the state.” (Gov. Code, §
4 11410.30, subd. (a) (italics added); see also 2 Cal.Jur.3d (Feb. 2024 update) Administrative
5 Law, § 407 [“The APA general procedural provisions do not apply to a local agency except to
6 the extent the provisions are made applicable by statute.”])
7 The Law Review Commission Comments to section 11410.30 state that “[l]ocal
8 agencies are excluded because of the very different circumstances of local government units
9 when compared to state agencies.” “There were also enormous political obstacles to sweeping
10 local agencies under the APA umbrella. For example, there is little separation of powers in
11 local agencies. City or county councils often enjoy combined legislative, executive and judicial
12 power. Thus, it would be technically difficult to draft adjudicatory provisions applicable to all
13 local agencies. There is also little in common between the procedures followed by large cities
14 and small towns.” (Asimow, et al., Cal. Practice Guide: Administrative Law (Rutter Group,
15 Nov. 2023 update) Ch. 4-G, ¶ 4:241.)
16 The Law Review Commission Comments to section 11410.30 give examples of
17 instances in which the “administrative adjudication provisions of the [APA] are made
18 applicable by statute to local agencies” – all under the Education Code. There are no such
19 statutes that would make the administrative adjudication provisions of the APA applicable to
20 the Airport Authority.
21 The Airport Authority was required to follow its own rules – which it did – not the
22 APA rules for “hearing[s] for determin[ing] ... facts pursuant to which [the] agency formulates
23 and issues a decision.” (Gov. Code, § 11405.20.)
24 B. Petitioner must seek ordinary (traditional) mandamus, not administrative
25 mandamus.
26 The Petition does not state whether Petitioner is seeking administrative mandamus
27 under Code of Civil Procedure section 1094.5 or ordinary (traditional) mandamus under
28 section 1085. This is important. Petitioner’s “Motion for Writ of Mandate” ambiguously
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
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1 indicates that Petitioner is seeking administrative mandamus. (See Motion, 5:8 [“The issuance
2 of ‘mandamus’ is authorized by CCP § 1084 et seq., especially CCP § 1094.5,” followed by a
3 purported “statement of the trial court’s inquiry” under section 1094.5].)
4 Administrative and ordinary mandamus cannot be conflated. “[A]dministrative
5 mandamus’ is authorized by CCP § 1094.5. Section 1094.5 provides for review of state and
6 local adjudicatory decisions that result from legally required evidentiary hearings when no
7 other method of review is prescribed by statute.” (Asimow, et al., Cal. Practice Guide:
8 Administrative Law, supra, Ch. 13-C, ¶ 13:140 (italics added).) Ordinary mandamus is used to
9 review agency decisions that are not reviewable by administrative mandamus – i.e., decisions
10 that are not the result of legally required evidentiary hearings. (Id., Ch. 13-B, ¶ 13:45; see also
11 id., Ch. 13-A, ¶ 13:1 [adjudicatory decisions “are reviewed by traditional mandamus if they did
12 not result from an evidentiary hearing required by law,” citing Scott B. v. Board of Trustees of
13 Orange County High School of Arts (2013) 217 Cal.App.4th 117, 122-124 [no legally required
14 evidentiary hearing when student is dismissed from a charter school, so review is under section
15 1085, not 1094.5].)
16 Ordinary mandamus under section 1085, not administrative mandamus under section
17 1094.5, is the proper procedure for review of the Airport Authority’s expulsion of Petitioner.
18 “Review of adjudicatory action by traditional mandamus calls for the court to determine
19 whether the agency action was an abuse of discretion.” (Asimow, et al., Cal. Practice Guide:
20 Administrative Law, supra, Ch. 17-E, ¶ 17:651.) That is, the court’s review of the agency’s
21 action “is limited to determining whether the actions were arbitrary, capricious, entirely
22 lacking in evidentiary support or contrary to required legal procedures. [Citations.]” (Golden
23 Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 (internal quotation marks
24 omitted) [administrative denial of pharmacy’s application for provisional Medi-Cal provider’s
25 license; reviewed under Code Civ. Proc., § 1085].)
26 Petitioner does not clear that hurdle. He doesn’t come close.
27 ///
28 ///
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 V. PETITIONER’S CLAIM FOR WRIT RELIEF FAILS AS A MATTER OF LAW.
2 The Exhibits to the Petition show that Petitioner was given adequate notice of the
3 accusations against him and an opportunity to rebut them. He took full advantage of that
4 opportunity. He did not persuade the Board that he should not be expelled for his misconduct.
5 That’s not a lack of due process. If it were, then every adverse ruling by a Superior Court judge
6 would mean that the losing party had been denied due process.
7 A. The Airport Authority’s Bylaws
8 The APA does not apply to the Airport Authority. Thus, the Authority was required to
9 follow its own rules in expelling Petitioner. It did. The Petition and Exhibits prove that it did.
10 Section 4.5 of the Airport Authority’s Bylaws is titled “Termination and Suspension of
11 Membership.” It is comprised of subsections 4.5.1, 4.5.2, and 4.5.3, which provide the
12 procedure for removal of a member. (See also Pet., ¶ 3 & Ex. A to “Exhibits to Petition for
13 Writ of Mandate.”)
14 Subsection 4.5.1 of the Airport Authority’s Bylaws states, “The membership of any
15 member shall terminate upon occurrence of any of the following events: ... (e) termination by
16 the board, or a committee of persons authorized by the board as provided by subsection 4.5.2
17 below.”
18 Subsection 4.5.2(a) of the Bylaws states:
19 A member may be expelled or suspended, under this subsection
4.5.2 of these bylaws, based on the good faith determination by the
20 board, or a committee or person authorized by the board to make such
21 a determination, that the member has failed in material and serious
degree to observe the corporation’s rules of conduct, or has engaged in
22 conduct materially and seriously prejudicial to the purposes and
interest of the corporation. [Italics added.]
23
The Bylaws do not define “good faith.” Black’s Law Dictionary, observing that “good
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faith” is “an elusive idea, taking on different meanings and emphases ... from one context to
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another,” defines the term as: “A state of mind consisting in (1) honesty in belief or purpose,
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(2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
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1 of fair dealing ..., or (4) absence of intent to defraud or to seek unconscionable advantage.”
2 (Garner, ed., Black’s Law Dictionary (11th ed. 2019), “good faith.”)
3 Subsection 4.5.3 of the Bylaws is titled “Procedure for Expulsion or Suspension”:
4 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
5 shall be followed:
6
(a) The member shall be given fifteen (15) days’ prior notice of
7 the proposed expulsion or suspension and the reasons for the proposed
expulsion or suspension. Notice shall be given by any method
8 reasonably calculated to provide actual notice. ...
9 (b) The member shall be given an opportunity to be heard,
either orally or in writing, at least five (5) days before the effective
10 date of the proposed expulsion or suspension. ...
11 (c) The board, committee, or person shall decide whether the
12 member should be suspended, expelled, or sanctioned in any way. The
decision of the board, committee, or person shall be final.
13
(d) Any action challenging an expulsion, suspension or
14 termination of membership, including a claim alleging defective
notice, must be commenced within one (1) year after the date of
15 expulsion, suspension or termination.
16 B. The Airport Authority followed its own procedures in expelling Petitioner.
17 The Petition and the Exhibits that Petitioner filed show that he was given all the process
18 he was due. The Airport Authority has rules for expelling members, and it followed those rules
19 in expelling Petitioner. It was not required to do more. Petitioner does not cite any authority
20 that says it was.
21 The heart of the Petition is in paragraphs 7 and 8. Petitioner complains that there was
22 insufficient evidence to expel him, that the remarks in favor of expelling him were not under
23 oath, and that he was not allowed to be heard. As already stated, there is no requirement in the
24 Aviation Authority that the basis for expelling a member be “sworn.” And, as also already
25 stated, Petitioner neglects to tell the Court that his own statement in support of remaining a
26 member was not “sworn.”
27 The so-called “transcript” of the Board meeting at which Petitioner was expelled
28 demonstrates that Petitioner was allowed to speak and did so at length. The “transcript” also
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 shows that Petitioner was expelled based on the complaints set out in the Letter, not on matters
2 outside the Letter.
3 1. The allegations of misconduct were specifically stated.
4 Paragraph 4 of the Petition alleges that “sometime prior to September 7, 2023,” the
5 Airport Authority’s Board of Directors received the Letter, which set out complaints about
6 Petitioner’s conduct and asked the Board to expel him from the Authority. The Letter is part of
7 Exhibit B of Petitioner’s “Exhibits to Petition for Writ of Mandate.” The contents of the Letter
8 are set out verbatim, above, in Part III.B.
9 Petitioner complains that the Letter was not under oath. There is no requirement that
10 allegations of misconduct by an Airport Authority member be made under oath. Petitioner also
11 complains that none of the authors of the Letter testified at the hearing at which he was
12 expelled. (Pet., ¶ 6.) No Airport Authority Bylaw requires such testimony.
13 2. Petitioner was given notice of the allegations against him.
14 Subsection 4.5.3(a) of the Airport Authority’s Bylaws requires that a member who is to
15 be considered for expulsion be given 15 days’ notice of the proposed expulsion and the reasons
16 therefor. Paragraph 4 of the Petition admits that Petitioner received the required notice: “The
17 claims in the letter are the ONLY claims given to [Petitioner] 15 days prior to the meeting” at
18 which his expulsion would be considered. Although the insinuation is that there were other
19 claims, not stated in the Letter, that the Airport Authority used as grounds for expelling
20 Petitioner, as shown below, that’s not true. The matters set out in the Letter were the bases for
21 expelling Petitioner.
22 3. Petitioner was given – and took full advantage of – the opportunity
23 to be heard on the allegations against him.
24 Petitioner’s Exhibit D purports to be a “certified transcript of the portion of the meeting
25 relating to [Petitioner’s] termination ....” (Pet., ¶ 6.) Regardless of the fundamental defect in the
26 so-called “transcript” – as already stated, it was not prepared by a certified shorthand reporter,
27 and there is no information that the typist was present at the meeting, or if the typist instead
28 prepared the “transcript” based on a recording or other third-party report of the meeting – it
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 puts the lie to Petitioner’s claim that he was expelled as a member of the Airport Authority in
2 violation of the Airport Authority’s Bylaws. The “transcript” demonstrates that Petitioner was
3 allowed to speak and did so at length. The “transcript” also shows that Petitioner was expelled
4 based on the complaints set out in the Letter, not on matters outside the Letter.
5 Petitioner’s statement in defense of himself begins on page 3, line 1, of the “transcript”
6 (page 30 of the Exhibits), and goes through page 12, line 14 (page 39 of the Exhibits). In those
7 nine-and-a-half pages, Petitioner went through all of the allegations against him in the Letter
8 and explained why he thought the allegations were not sufficient to justify expelling him from
9 the Airport Authority. The allegation that Petitioner was not allowed to be heard is belied by
10 the very “transcript” that he relies on.
11 Although Petitioner argued that the allegations were not sufficient to justify expelling
12 him, he did not deny most of those allegations. For example:
13 • He addressed the Letter’s first complaint, that he “[c]onstantly post[ed]
14 inaccurate information about the airport on social media and in the local news,” by stating that
15 he didn’t post that much inaccurate information; i.e., he attempted to parse the term
16 “constantly.” (Exhibits, 32:14 – 33:12 (“Transcript,” 5:14 – 6:12).)
17 • He then addressed the Letter’s second complaint, that he had called a Board of
18 Directors member a drunk at a meeting and called on the director to resign. He admitted this,
19 but excused it by stating that he did not call the Board member a drunk during a Board
20 meeting, but instead just prior to a Board meeting, and he later apologized to the Board
21 member for calling him a drunk. (Exhibits 33:12-23 (“Transcript,” 6:12-23).)
22 • Next, Petitioner addressed the Letter’s third complaint, that he refused to
23 remove Airport Authority members from his mailing list even though they specifically asked
24 him to. (Exhibits, 34:9 – 35:12 (“Transcript,” 7:9 – 8:12).) He did not deny this, but claimed it
25 would be a violation of the Brown Act if he did not send his e-mails to everyone. (Exhibits,
26 35:6 (“Transcript,” 8:6).) That defense misunderstands the Brown Act (Gov. Code, § 54950 et
27 seq.). The Act governs meetings of the legislative body of local agencies in California. It was
28 enacted to ensure the public’s ability to attend meetings of government agencies and to
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 participate in the legislative process. To the extent that Petitioner was intending to conduct
2 Airport Authority business by sending e-mails to other Airport Authority members, his emails
3 violated the Brown Act. If Petitioner was concerned about the Brown Act, he would not have
4 sent the emails at all. The Brown Act provides no support for his failure to respect requests to
5 be excluded from his e-mails.
6 • Next, Petitioner addressed the Letter’s fourth complaint, about his prior lawsuit
7 against the Airport Authority (Perry v. Santa Ynez Valley Airport Authority, Santa Barbara
8 Superior Court, case no. 22CV04927). (Exhibits, 35:12 – 36:2 (“Transcript,” 8:12 – 9:2).) He
9 did not deny that the lawsuit was dismissed or that it cost the Airport Authority more than
10 $18,000 to defend it – he simply said he would not repay the Authority for those costs.
11 • Petitioner then addressed the Letter’s fifth complaint, concerning his medical
12 condition. (Exhibits, 36:2-27 (“Transcript,” 9:2-27).) He said he would sue the Airport
13 Authority (“there will be a federal case big time”) if any of his medical history were made
14 public. He said, “[A]ll the operation that [he does] in the airplane fall[s] completely within
15 FAA guidelines” and that he is “completely legal as a pilot and as a flight instructor.”
16 (Exhibits, 36:25-27 (“Transcript,” 9:25-27).)
17 • Finally, Petitioner addressed the letter’s sixth complaint, about the “candidate’s
18 forum” he hosted. (Exhibits, 36:27 – 38:15 (“Transcript,” 9:27 – 11:15).) He said that the
19 Aircraft Owners and Pilots Association (“AOPA”) “does support candidates forums” and that
20 he invited all four candidates (the election is unspecified) to such a forum, but only one
21 showed up. (Exhibits, 37:20-24 (“Transcript,” 10:20-24).) He denied that the AOPA was
22 “livid” about the forum and that he was removed from his position as a representative of the
23 AOPA.
24 In sum, of the Letter’s six complaints against him, Petitioner only somewhat denied
25 two. And there is nothing in the Airport Authority’s Bylaws that requires every complaint
26 against a member to be proved in order for a member to be suspended or expelled.
27 Petitioner complains that he was not allowed to respond to the comments that Airport
28 Authority Board Members de Werd and McGowan made after Petitioner spoke. (Pet., ¶ 8.) But
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DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF
JANA S. JOHNSTON
1 Petitioner cites nothing that would require the hearing to be conducted exactly as he would
2 have liked – i.e., “due process” is not whatever Petitioner wants in terms of how the matter
3 should be conducted. There were charges of misconduct against Petitioner, set out in the
4 Letter, which Petitioner admits he had notice of. He was given the opportunity – and took full
5 advantage of it – to rebut some of the charges, and to argue that the others were not sufficient
6 to expel him. The Board disagreed and voted to expel him. Petitioner doesn’t want due process.
7 He claims an entitlement – he is entitled to be a member of the Airport Authority, regardless of
8 what the Board decides and regardless of what the Authority’s Bylaws provide.
9 4. Contrary to Petitioner’s allegation, Airport Authority Board
10 Members de Werd and McGowan did not consider matters outside
11 the Letter in recommending that Petitioner be expelled.
12 Petitioner complains that “matters not in” the Letter were part of the basis for expelling
13 him. (Pet., ¶ 7.) That’s not true. The “transcript” on which Petitioner relies proves it’s not true.
14 First, Airport Authority Board Chair de Werd spoke to item 4 of the Letter – the prior
15 lawsuit Petitioner filed. (Exhibits, 40:9-27 (“Transcript,” 13:9-27).)) He later said that by filing
16 the prior lawsuit, Petitioner “has engaged in conduct materially or seriously prejudicial to the
17 purpose and interest” of the Airport Authority. (Exhibits, 41:8-9 (“Transcript,” 14:8-9)); see
18 also id. at lines 23-26 [reiterating that Petitioner has engaged in conduct materially or seriously
19 prejudicial to purpose and interest of the Airport Authority, and that Petitioner had been given
20 proper notice of the matter].) Such conduct is a ground for expulsion under subsection 4.5.2(a)
21 of the Bylaws.
22 Next, de Werd spoke to item 3 of the Letter – Petitioner’s refusal to remove people
23 from his mailing list:
24 I find the fact that [Petitioner] would not remove people from his
specific mailing list reprehensible when you get specific requ
Preview
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 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA—COOK DIVISION 10 11 ROBERT PERRY, ) Case No.: 24CV00267 ) [Related to Case No. 22CV04927] 12 Petitioner, ) v. ) 13 ) NOTICE OF DEMURRER AND SANTA YNEZ VALLEY AIRPORT ) DEMURRER TO PETITION FOR 14 AUTHORITY, INC., JOURDI de WERD, ) WRIT OF MANDATE; “MEET AND BRUCE McGOWAN, CAREY ) CONFER” DECLARATION OF JANA 15 KENDALL, GARTH CARRIER, JAMES ) S. JOHNSTON CLELAND; ALLAN JONES ) 16 ) Respondents. ) FILED CONCURRENTLY: Answer to 17 ) Petition ) 18 ) Date: May 23, 2024 ) Time: 8:30 a.m. 19 ) Dept.: SM4 ) Judge: The Honorable Jed Beebe 20 ) 21 22 NOTICE OF DEMURRER TO PETITION FOR WRIT RELIEF 23 PLEASE TAKE NOTICE that on May 23, 2024, at 8:30 a.m., or as soon thereafter as 24 the matter may be heard in Department SM4 (Judge Beebe) of the above-entitled Court, 25 located at 312 East Cook Street, Building E, Santa Maria, CA, 93454, respondent Santa Ynez 26 Valley Airport Authority, Inc., a California non-profit public benefit corporation, will and 27 hereby does demur to Petitioner Robert Perry’s “Petition for Alternative and Preemptory [sic] 28 Writs of Mandate to Compel the Santa Ynez Valley Airport Authority and its Directors to -1- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 Reinstate Robert Perry as a ‘Member’ of the Corporation” (“Petition”), on the ground that the 2 Petition does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 3 430.10(e).) 4 This Demurrer is based upon this Notice and Demurrer, the Memorandum of Points and 5 Authorities in support of thereof, the “meet and confer” Declaration of Jana S. Johnston filed 6 herewith, the pleadings, records, and other documents on file in the above-referenced action, 7 pleadings, records, and other documents that the Court may judicially notice, and upon such 8 further oral and documentary evidence and argument as may be presented by counsel at or 9 prior to the hearing on this matter. 10 DATED: April 17, 2024 Mullen & Henzell LLP 11 12 By: _______________________________ 13 Jana S. Johnston Attorneys for Respondent Santa Ynez Valley 14 Airport Authority 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 TABLE OF CONTENTS 2 DEMURRER. .............................................................................................................................. 6 3 MEMORANDUM IN SUPPORT TO PETITION FOR WRIT RELIEF.................................... 7 4 I. INTRODUCTION ........................................................................................................ 7 5 II. A DEMURRER TO A PETITION FOR WRIT RELIEF IS PROPER ...................... 8 6 III. ALLEGATIONS OF THE PETITION ...................................................................... 9 7 IV. PROCEDURAL DEFECTS IN THE PETITION ................................................... 12 8 A. The APA does not apply ......................................................................... 12 9 B. Petitioner must seek ordinary (traditional) mandamus, not administrative 10 mandamus ................................................................................................. 13 11 V. PETITIONER’S CLAIM FOR WRIT RELIEF FAILS AS A MATTER OF LAW ............ 15 12 A. The Airport Authority’s Bylaws ............................................................... 15 13 B. The Airport Authority followed its own procedures in expelling Petitioner 14 ......................................................................................................................... 17 15 1. The allegations of misconduct were specifically stated .................... 18 16 2. Petitioner was given notice of the allegations against him ............... 18 17 3. Petitioner was given—and took full advantage of—the opportunity to 18 be heard on the allegations against him ................................................. 18 19 4. Contrary to Petitioner's allegation, Airport Authority Board Members 20 de Werd and McGowan did not consider matters outside the Letter in 21 recommending the Petition be expelled ................................................. 21 22 VI. CONCLUSION.................................................................................................................... 22 23 “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON .................................. 23 24 25 26 27 28 -3- TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 California Cases 3 Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95 .................................................................. 8 4 Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 ..................... 13 5 Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 597 ................................................... 8 6 Perry v. Santa Ynez Valley Airport Authority, Santa Barbara Superior Court, case no. 7 22CV04927 ................................................................................................................. 18 8 Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4th 9 117, 122-124 ............................................................................................................... 13 10 California Statutes 11 Cal. Civ. Proc. Code §430.10 ................................................................................................ 2,5 12 Cal. Civ. Proc. Code §430.30 ................................................................................................... 8 13 Cal. Civ. Proc. Code §430.41 ............................................................................................ 22,23 14 Cal. Civ. Proc. Code §1084 .................................................................................................... 13 15 Cal. Civ. Proc. Code §1085 ............................................................................................... 12,13 16 Cal. Civ. Proc. Code §1089 ...................................................................................................... 7 17 Cal. Civ. Proc. Code §1094.5 ............................................................................................ 12,13 18 Government Code § 11400-11475.70 ..................................................................................... 11 19 Government Code § 11405.20 ............................................................................................. 7,12 20 Government Code § 11410.30 ............................................................................................. 7,12 21 Government Code § 54950 et seq. .......................................................................................... 17 22 Other Authorities 23 2 C.E.B. Cal. Administrative Mandamus (3d ed., May 2022 update). .................................. 7,8 24 2 California Jurisprudence 3d (Feb. 2024 update) Administrative Law, § 407 ...................... 12 25 Asimow, et al., Cal. Practice Guide: Administrative Law (Rutter Group, Nov. 2023 update) 26 ................................................................................................................................ 12,13 27 Garner, ed., Black’s Law Dictionary (11th ed. 2019) ............................................................. 15 28 -4- TABLE OF AUTHORITIES 1 DEMURRER 2 Respondent Santa Ynez Valley Airport Authority demurs to the Petition on the 3 following ground: 4 1. The Petition fails to state facts sufficient to constitute a cause of action for writ relief. 5 (Code Civ. Proc., § 430.10, subd. (e).) 6 DATED: April 17, 2024 Mullen & Henzell LLP 7 8 By: _______________________________ 9 Jana S. Johnston Attorneys for Respondent Santa Ynez Valley 10 Airport Authority 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 MEMORADUM IN SUPPORT OF DEMURRER TO PETITION FOR WRIT RELIEF 2 I. INTRODUCTION 3 Robert Perry (“Petitioner”) is a former member of Respondent Santa Ynez Valley 4 Airport Authority (“Airport Authority” or “Authority”). The Airport Authority’s Board of 5 Directors voted to expel Petitioner from the Authority on October 5, 2023, based on violations 6 of the Airport Authority’s Bylaws. 7 Subsection 4.5.2(a) of the Bylaws provides that a member may be expelled, “based on 8 the good faith determination by the board ... that the member has failed in material and serious 9 degree to observe the [Authority’s] rules of conduct, or has engaged in conduct materially and 10 seriously prejudicial to the purposes and interest of the” Airport Authority. 11 The Airport Authority was notified by letter of six instances of conduct by Petitioner 12 that were alleged to be “materially and seriously prejudicial to the purposes and interests” of 13 the Authority. The Airport Authority gave Petitioner notice of the alleged misconduct as 14 required by subsection 4.5.3(a) of the Bylaws. Indeed, Petitioner admits in his verified Petition 15 that he received proper notice of the six instances of alleged misconduct. At the meeting at 16 which Petitioner’s expulsion was to be considered, Petitioner was given an opportunity to be 17 heard, as required by subsection 4.5.3(b) of the Bylaws. Petitioner took full advantage of that 18 opportunity as shown by the purported “transcript” that Petitioner provided in support of his 19 Petition. (See “Exhibits to Petition for Writ of Mandate,” pp. 30-39.) 1 After Petitioner was 20 heard, respondents Jourdi de Werd and Bruce McGowan 2 spoke about the misconduct alleged 21 against Petitioner. The Board voted to expel Petitioner. Petitioner then filed this action. 22 This is not Petitioner’s first rodeo. In December 2022, Petitioner, in pro per, filed a 23 “Verified Petition for Writ of Mandate; Complaint for Declaratory and Injunctive Relief,” 24 1 Petitioner did not file an administrative record. Instead, he filed a compendium of 25 exhibits that purportedly support his request for writ relief. 26 2 Petitioner also sued the following Airport Authority Board members, who voted to expel him: Board President de Werd, Board Secretary McGowan, Garth Carrier, James 27 Cleland, Alan Jones, and Carey Kendall. None of those respondents has been properly served 28 with the Petition. -6- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 along with a “Notice of Motion and Motion for Writ of Mandate.” (Santa Barbara Superior 2 Court, case no. 22CV04927.) That action, filed solely against the Airport Authority, alleged 3 that the Authority failed to follow its own rules and violated Petitioner’s constitutional free 4 speech rights by not reappointing him to the Bylaws Committee – i.e., that Petitioner (and, 5 presumably, every other member of the Airport Authority) had a constitutional right to be a 6 member of the Bylaws Committee (and, presumably, any other Airport Authority Committee). 7 The Airport Authority demurred to the Petition, and the Court sustained the demurrer without 8 leave to amend. (The Motion was thus rendered moot.) Now Petitioner is back, this time 9 claiming that his constitutional rights were violated when the Board voted to expel him from 10 the Airport Authority. 11 The Airport Authority’s argument is simple: Petitioner was given notice of the conduct 12 that could lead to his expulsion, and he was allowed to be heard on the matter. The Board 13 disagreed with his arguments and found that his conduct warranted expulsion. The Authority 14 followed its own Bylaws in expelling Petitioner. All of this is confirmed by the Petition and 15 Exhibits that Petitioner filed. As is proper when ruling on a demurrer, the Court need look no 16 further than the Petition and Exhibits to determine that the Petition fails as a matter of law. 17 The Petition’s references to the Administrative Procedures Act (“APA”) are a classic 18 “red herring,” designed to do nothing more than mislead the Court. The adjudicative provisions 19 of the APA do not apply to the Airport Authority – indeed, they do not apply to any “local 20 agency.” (See Gov. Code, § 11410.30, subd. (a), (b).) The Airport Authority was only required 21 to follow its own rules – which it did – not the APA rules for “hearing[s] for determin[ing] ... 22 facts pursuant to which [the] agency formulates and issues a decision.” (Gov. Code, § 23 11405.20.) 24 II. A DEMURRER TO A PETITION FOR WRIT RELIEF IS PROPER. 25 A party on whom a writ petition is served may respond by answer, demurrer, or both. 26 (Code Civ. Proc., § 1089; see also 2 C.E.B. Cal. Administrative Mandamus (3d ed., May 2022 27 update) § 12.1.) The Airport Authority is filing this Demurrer and simultaneously filing an 28 Answer to the Petition. “In most respects, the procedure applicable to demurrers in ordinary -7- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 civil actions also applies to administrative mandamus proceedings.” (2 C.E.B. Cal. 2 Administrative Mandamus, supra, §12.6.) Failure to state facts sufficient to constitute a cause 3 of action for writ relief is a ground for demurring to a writ petition. (Id., §12.7.) 4 A demurrer is directed to the face of the complaint and matters subject to judicial 5 notice. (Code Civ. Proc., § 430.30, subd. (a).) The “face of the complaint” includes matters 6 shown in exhibits attached to the complaint and incorporated by reference. (go v. O’Connell 7 (2005) 134 Cal.App.4th 91, 95; see also Nealy v. County of Orange (2020) 54 Cal.App.5th 8 594, 597 [“in the event of a conflict between the pleading and an exhibit, the facts contained in 9 the exhibit take precedence over and supersede any inconsistent or contrary allegations in the 10 pleading” (citation and internal quotation marks omitted)].) 11 III. ALLEGATIONS OF THE PETITION 12 Paragraph 3 of Petition alleges that subsections 4.5.1, 4.5.2, and 4.5.3 of the Airport 13 Authority’s Bylaws provide the procedure for removal of member. These subsections are set 14 out in full below, in Part IV.B. They are also part of Exhibit A to Petitioner’s “Exhibits to 15 Petition for Writ of Mandate.” 16 Paragraph 4 of the Petition alleges: 17 In an undated and unsworn letter to the [Airport Authority] Board sometime prior to September 7, 2023, certain members and at least one 18 non-member of [the Airport Authority], several of whose signatures are illegible, delivered a letter to the Board claiming to be “members” 19 of some non-entity known as the “SYVAA-Kunkle Field[ 3] Supporters” saying they would “like the [Airport Authority] Board of 20 Directors to remove [Petitioner] from the membership per section 4.5.2 of the bylaws.” The letter [Ex. B to the Petition] asserts that 21 “[Petitioner’s] actions over the past few years have been a constant detriment to the community, to the membership and the airport as a 22 whole.” The letter, not under oath, goes on to say the [sic] “only a few of the reasons are” ... and then lists 6 items without any “evidence” or 23 names of allegedly affected people, or any specification. 24 (Pet., ¶ 4 (ellipses and internal quotation marks in original).) 25 Petitioner makes much ado about the letter (“Letter”) requesting the Airport Authority 26 Board to take up the matter of Petitioner’s expulsion being “unsworn,” “not under oath,” and 27 3 Paragraph 2 of the Petition alleges that the Santa Ynez Valley Airport is also known as 28 Kunkle Field. -8- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 “without evidence.” But the Bylaws contain no requirement that any communication to the 2 Board requesting the expulsion of a member be under oath or set out evidence to support the 3 request. To the extent Petitioner insinuates to the contrary, he is not being truthful. 4 Paragraph 4 of the Petition further alleges that “[t]he claims in the letter are the ONLY 5 claims given to [Petitioner] 15 days prior to the meeting” at which his expulsion would be 6 discussed. Thus, Petitioner admits he received timely notice of the claims set out in the Letter. 7 And, as shown in this Demurrer, those are the only claims that were the basis of Petitioner’s 8 expulsion. Petitioner’s claim to the contrary is belied by the purported transcript of the hearing 9 at which Petitioner was expelled – the very transcript that Petitioner relies on. 10 Finally, Paragraph 4 of the Petition sets out the complaints against Petitioner, along 11 with his comments about the complaints’ veracity. Exhibit B to the Petition purports to consist 12 of the “minutes” of the September 7, 2023 Board meeting for the Airport Authority (although it 13 reads as if it is the pre-meeting agenda, rather than the post-meeting minutes). The Letter is 14 included in Exhibit B. The Letter sets out six complaints about Petitioner’s conduct, which the 15 authors contended warranted expulsion: 16 1. Constantly posting inaccurate information about the airport on social media and in the local news. 17 2. Calling a BOD [Board of Directors] member, a drunk at a 18 meeting and stating they should resign. 19 3. Then there is the mailing list. He has specifically told members who have asked to be removed from his emails that he would 20 not remove them. He has stated that “if they want to be removed, they must resign from the Authority, so they are no longer on the list”. 21 (Probably not a direct quote but very close). 22 4. The law suit he filed against the airport had no merit and was thrown out of court by two different court judges. It cost the 23 airport over $18,000 to defend the frivolous lawsuit. Mr. Perry has been asked at several board meetings to repay the defense cost to the 24 SYVAA-Kunkle Field. To date there has been no reply to the requests, nor any repayment received. 25 5. The other big one is while apparently not regulated by the 26 FAA for the Light Sport Category, the Authority should not be associated with Mr. Perry flying our kids around the valley considering 27 his medical history. The SYVAA has a moral obligation and possible legal liability if you condone this behavior while knowing of the 28 potential for tragedy should Mr. Perry have a medical event while -9- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON flying children as a member of the SYVAA during airport day. 1 6. At Mr. Perry’s Candidate’s Forum last year which he 2 claimed was hosted by the EAA Chapter. He then displayed the AOPA [Aircraft Owners and Pilots Association] banner implying they were 3 sponsors. The AOPA does not sanction political events and their representative was livid when told that Mr. Perry had used the AOPA 4 logo. He has since been removed as an AOPA airport representative for IZA-KUNKLE FIELD. 5 6 Paragraph 5 of the Petition alleges that Petitioner’s membership in the Airport 7 Authority was terminated at the meeting of October 6, 2023, on the motion of Board President 8 Jourdi de Werd, seconded by Board member Garth Carrier, and supported by Board Secretary 9 Bruce McGowan and Board members Carey Kendall, James Cleland, and Alan Jones. 10 Paragraph 6 of the Petition alleges that at the meeting at which Petitioner was expelled 11 from the Airport Authority, “there was no testimony offered by any witness against” 12 [Petitioner] and “no sworn statement provided in support of any of the claims” in the Letter. 13 There is no requirement under subsections 4.5.1, 4.5.2, or 4.5.3 of the Airport Authority’s 14 Bylaws that the expulsion of a member requires a “sworn statement.” Moreover, Petitioner 15 neglects to mention that his own lengthy statement at the meeting in opposition to expulsion 16 was not under oath. Petitioner also fails to mention that the statements given by de Werd and 17 McGowan at the meeting stated their personal knowledge of the allegations against Petitioner. 18 Paragraph 6 of the Petition then states that Exhibit D to the Petition is a “certified 19 transcript of the portion of the meeting relating to [Petitioner’s] termination ....” The so-called 20 “transcript” is “certified” by “a professional Typist and a Legal Document Assistant,” not by a 21 certified shorthand reporter. Regardless of this defect, however, the purported “transcript” puts 22 the lie to Petitioner’s claim that he was expelled as a member of the Airport Authority in 23 violation of the Authority’s Bylaws. 24 Paragraph 7 of the Petition alleges that after Petitioner spoke at the October 6, 2023 25 meeting, de Werd and McGowan spoke, “relaying their support for the motion and claiming 26 facts outside the Ex. B letter and refusing to let [Petitioner] speak. No one else spoke in favor 27 of or against the Motion. Neither statements were under oath or provided ‘evidence’ or factual 28 testimony .... Mr. de Werd invited the other board members to ‘follow your hearts on this one’ -10- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 ... but he surely did not refer to any ‘evidence’ justifying termination” of Petitioner’s 2 membership. 3 In complaining that de Werd’s and McGowan’s statements were not under oath, 4 Petitioner again neglects to mention that his statement was not under oath either. Moreover, 5 Petitioner was allowed to speak – at length – in his own defense. He spoke first. Then de Werd 6 and McGowan spoke. Petitioner was not allowed to respond to their statements during the 7 Board discussion. There is no requirement that he be allowed to do so. 8 Paragraph 8 of the Petition complains that Petitioner was not allowed to respond to de 9 Werd’s and McGowan’s comments. 10 Paragraph 10 of the Petition alleges that the Board did not follow the APA in 11 terminating Petitioner’s membership in the Airport Authority and thus deprived him of due 12 process. “Here, the only two people providing comment at the meeting (unsworn statements 13 [like Petitioner’s]) were two of the directors who voted to terminate [Petitioner] and each 14 claimed their vote was not based on the facts in the Ex. B letter.” (Pet., ¶ 10 (italics added).) 15 But as discussed below, the APA does not apply to the Airport Authority. Moreover, 16 Petitioner’s claim that the two directors (de Werd and McGowan) “claimed their vote was not 17 based on the facts in” the Letter is contradicted by the very “transcript” Petitioner relies on. 18 Paragraph 11 of the Petition alleges that Petitioner’s membership in the Airport 19 Authority was terminated in violation of the APA. Again, the APA does not apply to the 20 Airport Authority. 21 IV. PROCEDURAL DEFECTS IN THE PETITION 22 A. The APA does not apply. 23 Paragraph 2 of the Petition alleges that the Airport Authority is a “public benefit quasi- 24 governmental corporation established by the County of Santa Barbara (a subdivision of the 25 State of California) to operate and manage the Santa Ynez Valley Airport .... As such, it is 26 subject to the obligations of the California Administrative Procedures Act .... (Italics added.) 27 The adjudicative provisions of the APA – i.e., the statutes that govern the conduct of 28 adjudicative administrative hearings (Gov. Code, §§ 11400-11475.70) – do not apply to the -11- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 Airport Authority. Indeed, they do not apply to any “local agency.” (Gov. Code, § 11410.30, 2 subd. (b).) A “local agency” is “a county, city, district, public authority, public agency, or other 3 political subdivision or public corporation in the state other than the state.” (Gov. Code, § 4 11410.30, subd. (a) (italics added); see also 2 Cal.Jur.3d (Feb. 2024 update) Administrative 5 Law, § 407 [“The APA general procedural provisions do not apply to a local agency except to 6 the extent the provisions are made applicable by statute.”]) 7 The Law Review Commission Comments to section 11410.30 state that “[l]ocal 8 agencies are excluded because of the very different circumstances of local government units 9 when compared to state agencies.” “There were also enormous political obstacles to sweeping 10 local agencies under the APA umbrella. For example, there is little separation of powers in 11 local agencies. City or county councils often enjoy combined legislative, executive and judicial 12 power. Thus, it would be technically difficult to draft adjudicatory provisions applicable to all 13 local agencies. There is also little in common between the procedures followed by large cities 14 and small towns.” (Asimow, et al., Cal. Practice Guide: Administrative Law (Rutter Group, 15 Nov. 2023 update) Ch. 4-G, ¶ 4:241.) 16 The Law Review Commission Comments to section 11410.30 give examples of 17 instances in which the “administrative adjudication provisions of the [APA] are made 18 applicable by statute to local agencies” – all under the Education Code. There are no such 19 statutes that would make the administrative adjudication provisions of the APA applicable to 20 the Airport Authority. 21 The Airport Authority was required to follow its own rules – which it did – not the 22 APA rules for “hearing[s] for determin[ing] ... facts pursuant to which [the] agency formulates 23 and issues a decision.” (Gov. Code, § 11405.20.) 24 B. Petitioner must seek ordinary (traditional) mandamus, not administrative 25 mandamus. 26 The Petition does not state whether Petitioner is seeking administrative mandamus 27 under Code of Civil Procedure section 1094.5 or ordinary (traditional) mandamus under 28 section 1085. This is important. Petitioner’s “Motion for Writ of Mandate” ambiguously -12- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 indicates that Petitioner is seeking administrative mandamus. (See Motion, 5:8 [“The issuance 2 of ‘mandamus’ is authorized by CCP § 1084 et seq., especially CCP § 1094.5,” followed by a 3 purported “statement of the trial court’s inquiry” under section 1094.5].) 4 Administrative and ordinary mandamus cannot be conflated. “[A]dministrative 5 mandamus’ is authorized by CCP § 1094.5. Section 1094.5 provides for review of state and 6 local adjudicatory decisions that result from legally required evidentiary hearings when no 7 other method of review is prescribed by statute.” (Asimow, et al., Cal. Practice Guide: 8 Administrative Law, supra, Ch. 13-C, ¶ 13:140 (italics added).) Ordinary mandamus is used to 9 review agency decisions that are not reviewable by administrative mandamus – i.e., decisions 10 that are not the result of legally required evidentiary hearings. (Id., Ch. 13-B, ¶ 13:45; see also 11 id., Ch. 13-A, ¶ 13:1 [adjudicatory decisions “are reviewed by traditional mandamus if they did 12 not result from an evidentiary hearing required by law,” citing Scott B. v. Board of Trustees of 13 Orange County High School of Arts (2013) 217 Cal.App.4th 117, 122-124 [no legally required 14 evidentiary hearing when student is dismissed from a charter school, so review is under section 15 1085, not 1094.5].) 16 Ordinary mandamus under section 1085, not administrative mandamus under section 17 1094.5, is the proper procedure for review of the Airport Authority’s expulsion of Petitioner. 18 “Review of adjudicatory action by traditional mandamus calls for the court to determine 19 whether the agency action was an abuse of discretion.” (Asimow, et al., Cal. Practice Guide: 20 Administrative Law, supra, Ch. 17-E, ¶ 17:651.) That is, the court’s review of the agency’s 21 action “is limited to determining whether the actions were arbitrary, capricious, entirely 22 lacking in evidentiary support or contrary to required legal procedures. [Citations.]” (Golden 23 Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1465 (internal quotation marks 24 omitted) [administrative denial of pharmacy’s application for provisional Medi-Cal provider’s 25 license; reviewed under Code Civ. Proc., § 1085].) 26 Petitioner does not clear that hurdle. He doesn’t come close. 27 /// 28 /// -13- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 V. PETITIONER’S CLAIM FOR WRIT RELIEF FAILS AS A MATTER OF LAW. 2 The Exhibits to the Petition show that Petitioner was given adequate notice of the 3 accusations against him and an opportunity to rebut them. He took full advantage of that 4 opportunity. He did not persuade the Board that he should not be expelled for his misconduct. 5 That’s not a lack of due process. If it were, then every adverse ruling by a Superior Court judge 6 would mean that the losing party had been denied due process. 7 A. The Airport Authority’s Bylaws 8 The APA does not apply to the Airport Authority. Thus, the Authority was required to 9 follow its own rules in expelling Petitioner. It did. The Petition and Exhibits prove that it did. 10 Section 4.5 of the Airport Authority’s Bylaws is titled “Termination and Suspension of 11 Membership.” It is comprised of subsections 4.5.1, 4.5.2, and 4.5.3, which provide the 12 procedure for removal of a member. (See also Pet., ¶ 3 & Ex. A to “Exhibits to Petition for 13 Writ of Mandate.”) 14 Subsection 4.5.1 of the Airport Authority’s Bylaws states, “The membership of any 15 member shall terminate upon occurrence of any of the following events: ... (e) termination by 16 the board, or a committee of persons authorized by the board as provided by subsection 4.5.2 17 below.” 18 Subsection 4.5.2(a) of the Bylaws states: 19 A member may be expelled or suspended, under this subsection 4.5.2 of these bylaws, based on the good faith determination by the 20 board, or a committee or person authorized by the board to make such 21 a determination, that the member has failed in material and serious degree to observe the corporation’s rules of conduct, or has engaged in 22 conduct materially and seriously prejudicial to the purposes and interest of the corporation. [Italics added.] 23 The Bylaws do not define “good faith.” Black’s Law Dictionary, observing that “good 24 faith” is “an elusive idea, taking on different meanings and emphases ... from one context to 25 another,” defines the term as: “A state of mind consisting in (1) honesty in belief or purpose, 26 (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards 27 28 /// -14- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 of fair dealing ..., or (4) absence of intent to defraud or to seek unconscionable advantage.” 2 (Garner, ed., Black’s Law Dictionary (11th ed. 2019), “good faith.”) 3 Subsection 4.5.3 of the Bylaws is titled “Procedure for Expulsion or Suspension”: 4 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 5 shall be followed: 6 (a) The member shall be given fifteen (15) days’ prior notice of 7 the proposed expulsion or suspension and the reasons for the proposed expulsion or suspension. Notice shall be given by any method 8 reasonably calculated to provide actual notice. ... 9 (b) The member shall be given an opportunity to be heard, either orally or in writing, at least five (5) days before the effective 10 date of the proposed expulsion or suspension. ... 11 (c) The board, committee, or person shall decide whether the 12 member should be suspended, expelled, or sanctioned in any way. The decision of the board, committee, or person shall be final. 13 (d) Any action challenging an expulsion, suspension or 14 termination of membership, including a claim alleging defective notice, must be commenced within one (1) year after the date of 15 expulsion, suspension or termination. 16 B. The Airport Authority followed its own procedures in expelling Petitioner. 17 The Petition and the Exhibits that Petitioner filed show that he was given all the process 18 he was due. The Airport Authority has rules for expelling members, and it followed those rules 19 in expelling Petitioner. It was not required to do more. Petitioner does not cite any authority 20 that says it was. 21 The heart of the Petition is in paragraphs 7 and 8. Petitioner complains that there was 22 insufficient evidence to expel him, that the remarks in favor of expelling him were not under 23 oath, and that he was not allowed to be heard. As already stated, there is no requirement in the 24 Aviation Authority that the basis for expelling a member be “sworn.” And, as also already 25 stated, Petitioner neglects to tell the Court that his own statement in support of remaining a 26 member was not “sworn.” 27 The so-called “transcript” of the Board meeting at which Petitioner was expelled 28 demonstrates that Petitioner was allowed to speak and did so at length. The “transcript” also -15- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 shows that Petitioner was expelled based on the complaints set out in the Letter, not on matters 2 outside the Letter. 3 1. The allegations of misconduct were specifically stated. 4 Paragraph 4 of the Petition alleges that “sometime prior to September 7, 2023,” the 5 Airport Authority’s Board of Directors received the Letter, which set out complaints about 6 Petitioner’s conduct and asked the Board to expel him from the Authority. The Letter is part of 7 Exhibit B of Petitioner’s “Exhibits to Petition for Writ of Mandate.” The contents of the Letter 8 are set out verbatim, above, in Part III.B. 9 Petitioner complains that the Letter was not under oath. There is no requirement that 10 allegations of misconduct by an Airport Authority member be made under oath. Petitioner also 11 complains that none of the authors of the Letter testified at the hearing at which he was 12 expelled. (Pet., ¶ 6.) No Airport Authority Bylaw requires such testimony. 13 2. Petitioner was given notice of the allegations against him. 14 Subsection 4.5.3(a) of the Airport Authority’s Bylaws requires that a member who is to 15 be considered for expulsion be given 15 days’ notice of the proposed expulsion and the reasons 16 therefor. Paragraph 4 of the Petition admits that Petitioner received the required notice: “The 17 claims in the letter are the ONLY claims given to [Petitioner] 15 days prior to the meeting” at 18 which his expulsion would be considered. Although the insinuation is that there were other 19 claims, not stated in the Letter, that the Airport Authority used as grounds for expelling 20 Petitioner, as shown below, that’s not true. The matters set out in the Letter were the bases for 21 expelling Petitioner. 22 3. Petitioner was given – and took full advantage of – the opportunity 23 to be heard on the allegations against him. 24 Petitioner’s Exhibit D purports to be a “certified transcript of the portion of the meeting 25 relating to [Petitioner’s] termination ....” (Pet., ¶ 6.) Regardless of the fundamental defect in the 26 so-called “transcript” – as already stated, it was not prepared by a certified shorthand reporter, 27 and there is no information that the typist was present at the meeting, or if the typist instead 28 prepared the “transcript” based on a recording or other third-party report of the meeting – it -16- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 puts the lie to Petitioner’s claim that he was expelled as a member of the Airport Authority in 2 violation of the Airport Authority’s Bylaws. The “transcript” demonstrates that Petitioner was 3 allowed to speak and did so at length. The “transcript” also shows that Petitioner was expelled 4 based on the complaints set out in the Letter, not on matters outside the Letter. 5 Petitioner’s statement in defense of himself begins on page 3, line 1, of the “transcript” 6 (page 30 of the Exhibits), and goes through page 12, line 14 (page 39 of the Exhibits). In those 7 nine-and-a-half pages, Petitioner went through all of the allegations against him in the Letter 8 and explained why he thought the allegations were not sufficient to justify expelling him from 9 the Airport Authority. The allegation that Petitioner was not allowed to be heard is belied by 10 the very “transcript” that he relies on. 11 Although Petitioner argued that the allegations were not sufficient to justify expelling 12 him, he did not deny most of those allegations. For example: 13 • He addressed the Letter’s first complaint, that he “[c]onstantly post[ed] 14 inaccurate information about the airport on social media and in the local news,” by stating that 15 he didn’t post that much inaccurate information; i.e., he attempted to parse the term 16 “constantly.” (Exhibits, 32:14 – 33:12 (“Transcript,” 5:14 – 6:12).) 17 • He then addressed the Letter’s second complaint, that he had called a Board of 18 Directors member a drunk at a meeting and called on the director to resign. He admitted this, 19 but excused it by stating that he did not call the Board member a drunk during a Board 20 meeting, but instead just prior to a Board meeting, and he later apologized to the Board 21 member for calling him a drunk. (Exhibits 33:12-23 (“Transcript,” 6:12-23).) 22 • Next, Petitioner addressed the Letter’s third complaint, that he refused to 23 remove Airport Authority members from his mailing list even though they specifically asked 24 him to. (Exhibits, 34:9 – 35:12 (“Transcript,” 7:9 – 8:12).) He did not deny this, but claimed it 25 would be a violation of the Brown Act if he did not send his e-mails to everyone. (Exhibits, 26 35:6 (“Transcript,” 8:6).) That defense misunderstands the Brown Act (Gov. Code, § 54950 et 27 seq.). The Act governs meetings of the legislative body of local agencies in California. It was 28 enacted to ensure the public’s ability to attend meetings of government agencies and to -17- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 participate in the legislative process. To the extent that Petitioner was intending to conduct 2 Airport Authority business by sending e-mails to other Airport Authority members, his emails 3 violated the Brown Act. If Petitioner was concerned about the Brown Act, he would not have 4 sent the emails at all. The Brown Act provides no support for his failure to respect requests to 5 be excluded from his e-mails. 6 • Next, Petitioner addressed the Letter’s fourth complaint, about his prior lawsuit 7 against the Airport Authority (Perry v. Santa Ynez Valley Airport Authority, Santa Barbara 8 Superior Court, case no. 22CV04927). (Exhibits, 35:12 – 36:2 (“Transcript,” 8:12 – 9:2).) He 9 did not deny that the lawsuit was dismissed or that it cost the Airport Authority more than 10 $18,000 to defend it – he simply said he would not repay the Authority for those costs. 11 • Petitioner then addressed the Letter’s fifth complaint, concerning his medical 12 condition. (Exhibits, 36:2-27 (“Transcript,” 9:2-27).) He said he would sue the Airport 13 Authority (“there will be a federal case big time”) if any of his medical history were made 14 public. He said, “[A]ll the operation that [he does] in the airplane fall[s] completely within 15 FAA guidelines” and that he is “completely legal as a pilot and as a flight instructor.” 16 (Exhibits, 36:25-27 (“Transcript,” 9:25-27).) 17 • Finally, Petitioner addressed the letter’s sixth complaint, about the “candidate’s 18 forum” he hosted. (Exhibits, 36:27 – 38:15 (“Transcript,” 9:27 – 11:15).) He said that the 19 Aircraft Owners and Pilots Association (“AOPA”) “does support candidates forums” and that 20 he invited all four candidates (the election is unspecified) to such a forum, but only one 21 showed up. (Exhibits, 37:20-24 (“Transcript,” 10:20-24).) He denied that the AOPA was 22 “livid” about the forum and that he was removed from his position as a representative of the 23 AOPA. 24 In sum, of the Letter’s six complaints against him, Petitioner only somewhat denied 25 two. And there is nothing in the Airport Authority’s Bylaws that requires every complaint 26 against a member to be proved in order for a member to be suspended or expelled. 27 Petitioner complains that he was not allowed to respond to the comments that Airport 28 Authority Board Members de Werd and McGowan made after Petitioner spoke. (Pet., ¶ 8.) But -18- DEMURRER TO PETITION FOR WRIT OF MANDAMUS; “MEET AND CONFER” DECLARATION OF JANA S. JOHNSTON 1 Petitioner cites nothing that would require the hearing to be conducted exactly as he would 2 have liked – i.e., “due process” is not whatever Petitioner wants in terms of how the matter 3 should be conducted. There were charges of misconduct against Petitioner, set out in the 4 Letter, which Petitioner admits he had notice of. He was given the opportunity – and took full 5 advantage of it – to rebut some of the charges, and to argue that the others were not sufficient 6 to expel him. The Board disagreed and voted to expel him. Petitioner doesn’t want due process. 7 He claims an entitlement – he is entitled to be a member of the Airport Authority, regardless of 8 what the Board decides and regardless of what the Authority’s Bylaws provide. 9 4. Contrary to Petitioner’s allegation, Airport Authority Board 10 Members de Werd and McGowan did not consider matters outside 11 the Letter in recommending that Petitioner be expelled. 12 Petitioner complains that “matters not in” the Letter were part of the basis for expelling 13 him. (Pet., ¶ 7.) That’s not true. The “transcript” on which Petitioner relies proves it’s not true. 14 First, Airport Authority Board Chair de Werd spoke to item 4 of the Letter – the prior 15 lawsuit Petitioner filed. (Exhibits, 40:9-27 (“Transcript,” 13:9-27).)) He later said that by filing 16 the prior lawsuit, Petitioner “has engaged in conduct materially or seriously prejudicial to the 17 purpose and interest” of the Airport Authority. (Exhibits, 41:8-9 (“Transcript,” 14:8-9)); see 18 also id. at lines 23-26 [reiterating that Petitioner has engaged in conduct materially or seriously 19 prejudicial to purpose and interest of the Airport Authority, and that Petitioner had been given 20 proper notice of the matter].) Such conduct is a ground for expulsion under subsection 4.5.2(a) 21 of the Bylaws. 22 Next, de Werd spoke to item 3 of the Letter – Petitioner’s refusal to remove people 23 from his mailing list: 24 I find the fact that [Petitioner] would not remove people from his specific mailing list reprehensible when you get specific requ