By David M. Greenwald
Executive Editor
Woodland, CA – When the ballots are cast and counted following Tuesday’s deadline, it remains to be seen just what the effect of the litigation by Councilmember Dan Carson was on the ultimate outcome. But on Wednesday, Judge Dan Maguire handed down one costly verdict, ordering Carson to pay net fees of $42 thousand and change.
“(W)hile both sides gained some of their objectives in this litigation, the Real Parties in Interest have achieved the greater share of success, and are awarded a net fees recovery of $42,209.75,” the judge ruled in a 16-page opinion.
Following the issuance of ballot statements, the Yes on Measure H campaign, represented by honorary campaign chair and Councilmember Dan Carson, filed a legal challenge to the accuracy of some of the statements made by the opposition, per Election Code section 9295.
Read the ruling – here.
Carson, as the judge noted, named six individuals as the “Real Parties in Interest.” These individuals signed the Argument Against Measure H, and defended it in court against his challenge.
One issue that could be further litigated by an appellate court is the fact that Judge Maguire reasoned that both those bringing the lawsuit and those defending them can claim fees under the same standard for determining “successful party” in which the courts have used the “any significant issue” standard.
Maguire acknowledged that neither the acknowledged controlling authority case nor any other published California case “has clearly answered the question, this court concludes that the same standard for determining ‘successful party’ status 
applies to those bringing lawsuits and those defending them.”
The judge reasons: “The quantitative tally is one victory for Petitioner, three for Real Parties in Interest, and one split decision.”
“[A]nd is still non-compliant with the City of Davis General Plan.”
Maguire writes, “The Court let this provision stand without change, and noted that both sides agreed that DiSC 2022 requires a change to the General Plan.”
“The Developer had made almost no binding commitments and has no viable ways to improve this traffic mess.”
Maguire writes, “While the truth of this statement is debatable, the Court let it stand for lack of ‘clear and convincing’ evidence of its falsity.”
“Their only promise is to develop a Traffic Demand Management Plan if the project is approved. But figuring this traffic mess out later is not a plan!”
“Petitioner sought to delete this entire sentence, but instead the court removed the word ‘only,’” Maguire writes. “However, one word can be important, and in this case, deletion of the word ‘only’ is a significant change.”
“Unmitigated Greenhouse Gas Emissions”
Maguire writes, “The court found this heading ambiguous, and therefore let it stand. It is hard to know whether voters will place any great significance on the heading, but the Real Parties in Interest successfully defended against its removal and therefore prevailed on this claim.”
“DiSC is projected to produce 54 million pounds of new greenhouse gases annually”
“The Petitioner prevailed on this challenge. Twenty-thousand metric tons (the amended value) is significantly less than 54 million avoirdupois pounds (the original value, as likely understood by voters). This is not the same mass or weight expressed in different units, but an actual change in value.”
The judge added, “While the error was made in good faith, and while Real Parties in Interest promptly agreed to correct it upon notice, this was still a substantive victory for Petitioner.”
The judge writes, “In sum, the litigation was not a complete win for either side, as both Petitioner and Real Parties in Interest scored substantive victories. Therefore, both sides easily satisfy the low bar of the ‘any significant issue’ standard and qualify as successful parties.”
The judge then ruled that the Real Parties are the net winners, achieving about 3.5 of 5 of their litigation goals. He then calculates the amount claimed and adjusts it to the 70-30 standard to award the Real Parties $65 thousand and the petitioner just under $23 thousand for a net of $42,209.75 to the Real Parties.
Councilmember Carson, upon hearing the ruling, said, “Although we are still reviewing the decision, we are pleased to see that Judge Maguire determined both parties to be prevailing parties. In other words, neither party won nor lost.”
Meanwhile, the No on H campaign claimed victory, noting the judge’s reasoning that the Real Parties “achieved the greater share of success” in the lawsuit and should have most of their legal fees paid for by Carson.
They note that Judge Maguire in his order wrote, “Our society has a deep commitment to free speech, especially in political matters, and by defending their right to make their argument in their words, the Real Parties in Interest have also enforced an important right affecting the public interest.”
“We thank Judge Maguire for his thoughtful consideration of the issues and are heartened that our grass roots campaign was vindicated and prevailed over deep-pocketed developers and politicians who tried to intimidate Davis residents with meritless litigation,” said Alan Pryor, chair of the No on H campaign.
“I’m relieved that the judge agreed overwhelmingly with our arguments,” said Roberta Millstein, one of the ballot-signers. “But there’s not much reason to celebrate. This lawsuit never should have happened. Davis residents shouldn’t be reluctant to speak out for fear that an elected city official might sue them.”
Juliette Beck, another ballot-signer added, “I hope Dan Carson’s heavy handed approach to selling this dinosaur of a project backfires at the polls on June 7. Voters are tired of these shenanigans and the corrosive influence of big development dollars on our democracy.”
Appeals aren’t cheap, and I doubt that Dan Ramos wants to throw another $50k at this.
Speaking of which, since Dan Carson is personally liable for the No on H fees, will Dan Ramos agree to pay it for him? If he does, will he also agree to pay the gift tax on the $26,209.75 after the allowable gift exclusion?
And, if it is a ‘gift’, it would be reportable on Form 700 (Carson’s) due by next April…
More and more ‘interesting’…
Time will tell…
I agree on the point that appeals aren’t cheap and there might not be a real upshot to appealing it. But I was also struck by the judge’s acknowledgment that there was no guiding precedent for awarding fees to respondents. But we might never find out if the judge got it right here.
Oh… that’s interesting… a Yolo County judge ruling favorably, in part, for a person who is a candidate for Yolo County Supervisor, and who (candidate), if successful, would have a say in the County portion of the funding of the Court.
Could become very interesting in the next year or so…
The costs and questions keep piling up. Curiouser and curiouser. Add these to the list of unintended consequences springing from Measure J land annexation elections.
One thing I predicted the attorneys will get paid.
” would have a say in the County portion of the funding of the Court.”
Is there a County portion of the funding of the court? You caused me to question myself, I looked at the county budget and still didn’t see any sort of line item. I was under the impression that the courts are funded by the state not the county. I still don’t see anything that leads me to another conclusion.
As much as I like Juliette, her campaign started late and she has a huge deficit to make up. I seriously doubt that aspect entered into his consideration. Carson is more likely to have impact on McGuire’s job.
I’m glad that this is over. If it did anything, it helped to clarify the accuracy of the ballot statement. Campaigns might do better in this regard going forward, but I believe that the high cost (both monetary and social) of challenging statement accuracy in court will dissuade any future challenges.
David Greenwald April 20, 2022 at 7:40 am
https://davisvanguard.org/2022/04/guest-commentary-carsons-attorney-file-motion-seeking-to-deny-legal-fees-to-disc-opponents/#comment-464579
Not sure what you were basing that speculation on (political hopes?), but your guess turned out to be wrong.
Despite the outcome, one might ask how Carson (and the developers’) actions will impact the willingness of citizens to sign ballot statements going forward.
If DiSC loses, that might send an even bigger “message” regarding future attempts to intimidate opponents. Costing them a lot more than $42K (which is chump change, for them).
Indeed. And the following $600K is just for the campaign, itself. Not including the EIR that they’re essentially “re-using”, traffic study, etc.
I still haven’t seen any actual advertisements for DiSC on the Vanguard (other than the articles, themselves) to account for the $6K that it received.
https://www.davisite.org/2022/06/ramco-enterprises-spends-over-600000-to-date-on-yes-on-h-campaign.html#more
The suggestion that there is some kind of inpropriety is assuming that things are much more sophisticated than they are within this grass roots effort to defeat H.
Supervisor candidate Juliette Beck has made her No on H postion clear. Her Supervisor Campaign, and all it is working toward, is for principled climate justice in our region.
I would say the same about Stephen Wheeler – a well respected Professor with research focused on community sustainability. But don’t discount the sophistication of the No on H campaign.
Sharla, my observations of the No on H campaign and campaign team is that it is the epitome of “grass roots.” Skilled and hard working are words that I would use to describe their efforts. The following list of the folks who have submitted letters to the Enterprise is pretty clear evidence of that grass roots nature.
Laurie Loving
David Thompson
Rick Entrikin
Liz Reay
Barbara Burr
Don Price
Eileen Samitz
Raoul Renaud
Doug Walter
Madalene Ransome
Richard Schultz
Stuart Ross
John Moren
Judy Dowell
Ed Patriquin
Former Mayors
Dan Cornford
Landon Scarlett
Eric Nelson
David Johnson
Robert Thayer
Pam Gunnell
Charles H. Pickett
Ann Evans
Desmond Jolly
Todd Edelman
Claudia Krich
Roberta Milstein
Dan Urazandi
Nikki Martin
John Clark
Colin Walsh
Larry Guenther
Donna Davies
Scott Steward
Michael Wright
Andy Faleti
Curtis Fritz
Karen Baker
Stephen Wheeler
Cost of doing business. Whatever. The NO Campaign would have you think it’s some personal attack to squash the opposition with big bad developer money. It’s just legal procedure for getting something done.
As for Juliette Beck: “I think our best vision for Yolo County is to attract visitors through our tourism, eco-tourism industry,”
Politics is all about compromise. So if DISC agrees to build a rollercoaster and maybe a Ferris wheel with views of the nearby farm fields, will she then endorse DISC?
Those who signed the ballot statement opposing DiSC aren’t in “business”, in regard to DISC. They were personally liable (with no financial upside), for signing the ballot statement. Sued by the guy who is supposed to represent all constituents, using developer money to do so.
Sorry that you don’t see any “problem” with that, in regard to anyone signing future ballot statements opposing a developer and his council member ally. (The same guy who participated in a lawsuit against UCD’s development plans, for that matter.)
You are likely in the minority regarding this – even among those who might have supported DiSC. Then again, aren’t you the guy who views students as a “pestilence”?
Let’s hope that it’s the developer who is “done”.
Perhaps something not so complicated – just leave it as is. (Along with Shriner’s, the “other half of DiSC, . . .)
Davis has existed this long, without it.
Oh boo-hoo. You put your name to a campaign then you accept the responsibilities. You want to force the opposition to change something; you gotta go through the courts. If you don’t like the system, change the system….don’t whine and complain about being treated unfairly by the big bad developer….it’s unseemly.
Yeah, never mind economic growth. But maybe those of us that don’t work for UCD or the government can start working in the farm fields! Or I suppose commute from here to where the jobs are in Sacramento.
Yes as either a decaying rust belt type small town….even one with a college next to it (I know a few). Or an expensive bedroom community like Woodside.
But hey, some people like to stick their head in the ground and hope things stay the same.
Keep talking, as you’re likely helping the opposition at this point. Perhaps (also) repeat your “unwashed masses” comment in regard to voters, as well. (Unlike the “land use experts” on the council, right? Who – prior to their recent elections, were part of the “unwashed masses” themselves.)
If the future of the city is forever-dependent upon continued sprawl, there’s bigger problems with the system.
Also, how would Shriner’s or the “other half” of DiSC (which is also likely to be a housing proposal) “contribute” to economic development?
Rather than just blindly advocating for the continuation of sprawling growth patterns of the past, perhaps we should question how/why this is pushed in the first place.
As far as commuting is concerned, that’s exactly what DiSC would cause.
I’d suggest exaggerating this, some more. (You’re not quite at David’s level regarding this, yet.) But for sure, DiSC would not make the city any less-expensive. (If anything, it would push it in the opposite direction, given the housing shortage it would create.)
Nothing stays exactly the same, over time. Then again, many cities never expand their boundaries anymore. Just about every city within 30 miles or so of the coast, for example – including Silicon Valley. Probably 75% or so of California’s population lives in cities that don’t expand outward, anymore.
Please stop with the personal comments and stick to the issues.
I don’t really care one way or the other. DISC is not going to dramatically effect me personally. My comments are for my own amusement (remember, I’m the one that often posts Simpsons and South Park quotes). I don’t take anything here too seriously. Remember when I posted that I thought the unwashed masses should vote for me because they’re too ignorant to know what’s good for them?
Oh no! The sky is falling! The sprawl blob is coming!!!!
I’ve never advocated for the continuation of sprawling growth patterns. I’m just knowledgeable and experienced enough to know that peripheral development is a component to an over all growth plan for a city (which includes and should focus on infill development)….as opposed to a zealot like belief in no peripheral growth for any reason.
If you’re going to respond to my comments, please do me the courtesy of keeping up with them. I have never said that for profit development would have any positive impact on making market rate housing more affordable. In fact, I’ve argued the opposite for years. More expensive with little growth is Woodside.
Hey observant one….take it from someone who lived there and developed there. THERE’S NO MORE ROOM FOR CITIES TO EXPAND IN THE BAY AREA. Trust me, we looked 20 years ago. If they could expand they would. Instead they have no choice but to go up.
That’s good advice, but those who were personally sued by a council member (backed by developer money) might have a different view regarding the situation. As would any other citizen who might otherwise be willing to sign a ballot statement opposing a deep-pocketed developer – and their city council member ally.
Truth be told, I’m not sure I’d even be willing to put myself in such a situation. My hat is off to those who have done so, but who knows if they’d be willing to do so going forward. Perhaps that’s part of the “goal” of this action.
I’d say that a better description is “business as usual” – which hasn’t solved any fiscal problems so far. Just kicks the can down the road.
If peripheral growth is continued to be viewed as a “go-to solution” (regarding “problems” defined by development interests – which aren’t even impacting current residents to any degree), then that’s what we’ll continue to get more of.
Not something I said, though there’s certainly no “shortage” of sprawl continuing in the region (and even surrounding Davis, at this point – Nishi and Bretton Woods).
I’m as familiar with the Bay Area as you, perhaps more so than you. That’s where a lot of my values were formed in the first place. I witnessed a lot of land “converted”, and a lot of land subsequently (and purposefully) “saved”.
There are quite a few cities in the Bay Area which choose to preserve the land around them, using various tools (zoning, land trusts purchasing development rights, public purchases of land, etc.). And regardless of whether they have a “choice” or not, your own comment notes that they aren’t expanding outward.
At some point, they also won’t be able to expand “upward”, either. (And, quite a few of them are happy to discourage that, as well.)
Will you be saying that if the $42,000 judgement “contributes” to a loss of another $600,000 (in this campaign, alone)?;
Maybe they shouldn’t put there names down to run a campaign if they aren’t willing to accept the responsibility?
Really? How many other POSITIVE TAX REVENUE (please keep this part mind before you reflexively state based on your limited understanding about the city Ponzi scheme that other cities practice….many do…many don’t…you don’t understand the don’t part) business parks built on the periphery have their been in Davis? I’m sure you the miles and miles of sprawling
OOOOHHH you “witnessed”. I’ve witnessed brain surgery on TV but I can’t comment on it intelligently. I’ll tell you what. You name the bay area developers that you did land acquisition for and I’ll take you seriously (also, I was born in the Bay Area).
Again with you not bothering to read my comments. My first reply was that I personally don’t care one way or the other about the outcome. It doesn’t immediately effect me. I have no skin the game either.
One point that I think is important…. The judge acknowledges that he treated the same standard for determining “successful party” in which the courts have used the “any significant issue” standard as being equivalent for both the Real Parties and the petitioner despite the fact there is no caselaw that clearly states this.
I tend to agree with Jim Frame that it’s unlikely that they will appeal it. But when the judge makes a ruling that has no precedent in case law, I think it’s hard to predict that will happen.
The other point I would make is that if you look at the five points, the judge characterizes it as 3-1-1, I might argue it’s closer to 2-1-2, where the two were essentially ties that went to the respondents due to the legal burden.
It was a legal case regarding what’s allowed on a ballot statement, not a political argument case. If you want to argue politics, go for it. That’s your realm.
Maybe you both can argue with the $42,000 judgement, as well. Or, maybe you both can start criticizing the judge.
If it wasn’t for the fact that it would cause further stress for those willing to sign a ballot statement, I’d suggest that Carson and his developer friends appeal it (for my own entertainment).
David, to your knowledge has there ever been a case where both parties sue for reimbursement of legal costs?
Perhaps there is no precedent because this is the first time such a case has been heard.
Amber Heard and Johnny Depp. He got $15,000,000 she got $2,000,000. The $2 million will pay for Heard’s lawyer if she isn’t collectable.
The lawyers always get paid because other lawyers decide who gets paid.
Five comment rule is in effect. Comments that exceed five (after this note) will be held in the moderation queue and released tomorrow.
Thank you Don. I believe the next day release from the moderation queue of comments over five is an excellent rule.
Why do I keep thinking of “For What It’s Worth” by Buffalo Springfield?
Many portions of the lyrics apply…