Councilmember Carson Ordered to Pay $42 Thousand for Court Fees in Measure H Decision

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.”