As lawyers are taught to do, let us first set up the following hypothetical situation:
Let us assume that on November 19, 2012 a certain City Council voted in closed session to file suit against a local developer in order to prevent that developer from renting out real estate the developer owned within the city limits.
And let us further assume that in response, the local developer filed a government claim against the City on November 22, 2012, threatening to file suit against City Hall on various theories over the city’s threat to limit the developer, as a property owner, from using its property in otherwise legal ways, such as renting its property instead of selling its property.
And let us further assume that the 45 days from filing the government claim against the City until the claim is “deemed denied by operation of law” after which the developer is free to file litigation against the city and in all likelihood prevail, runs on January 7, 2013.
And now lets assume that in the City’s recent response to public record act requests seeking the same subject matter and submitted independently by yours truly and the Ventura County Star, the City chose to read the requests quite narrowly and omitted an email from the attorney for the developer to the City dated December 14, 2012 at 2:48 p.m., wherein the developer’s attorney makes clear that the negotiated dialogue over the wording of the MOU are solely intended to provide a way for the developer to withdraw its claim against the City and for the City to avoid “fruitless litigation.”
And finally, the hypothetical requires that you understand that if the MOU is not signed ASAP, and January 7, 2013 comes and goes without an agreement, the developer then goes ahead and files suit against the City and the City wastes valuable resources in the process of losing expensive and avoidable “fruitless litigation.”
With that in mind, read the two clauses from the MOU which the City describes as a “draft,” signed by the City Attorney and the Mayor on December 20, 2012 and thereafter by the attorney for the developer LA Avenue Group and the president of LA Avenue Group,
“5. The City Council hereby withdraws its November 19, 2012, direction to the City Attorney to initiate litigation to prohibit leasing of the individual units in the Project and will not seek to recover damages for any injury it has suffered to date.
6. LA Avenue Group hereby withdraws the claim for damages previously submitted to the City and will not seek to recover damages for any injury it has suffered to date.”
The exact same paragraphs are found in the exact same MOU signed again by the City on February 27, 2013.
Now, with the above “hypothetical fact pattern,” ask yourself the following two questions:
1) Do you really buy the City’s “explanation” that its signing of the MOU on December 20, 2012 was an “error,” that the document was really an invalid “draft?”
2) Or, do you think the developer believed the City was, on December 20, 2012, legitimately negotiating in good faith to withdraw its threat of “fruitless litigation” in exchange for the developer withdrawing its claim against the City, which claim against the city would be considered “denied by operation of law” on January 7, 2013, thereby allowing the developer to file suit immediately thereafter, unless, of course, the City did something immediately . . ., like withdraw its threat of litigation?
PS: No lawsuit was filed against the City by the developer on or after Jan 8, 2013.