CC 03-07-2022 Oral CommunicationsCC 03-07-2023
Written Communications
Oral
Communications
From:E. Poon
To:City Council; City Clerk
Subject:No illuminated sign on 280
Date:Friday, March 3, 2023 8:21:59 PM
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Dear Cupertino City Council Members,
Please reconsider the decision regarding large illuminated sign visible from 280, as such signs
are lacking in elegance and do not reflect the character of our city.
280 is a really beautiful freeway and we would like to keep it nice. Unfortunately, the addition
of a big illuminated sign would open the way for other such signs. We should not tolerate even
one such sign.
We would appreciate it if the City Council would take the steps to disallow such signs now
and in the future.
Regards,
Emily Poon
Resident since 2007
From:Joe Yellow
To:City Council
Subject:RECALL HUNG WEI AND JR FRUEN. - Written communication, Council Meeting, 3/7/2023, Agenda Item 11, in support
of Planning Commissioner R "Ray" Wang
Date:Saturday, March 4, 2023 8:02:04 AM
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All Cupertino City Council,
Dear Cupertino City Council, City Attorney, City Manager, and City Clerk
Please include my letter as written communication for the 3/7/2023 City Council meeting,
Agenda Item 11, RETAIN, do not remove, Planning Commissioner Ray Wang."
Mayor Hung Wei and JR Fruen should be Recalled for attempting to do this. In less than one
week, they are eligible for a recall.
We need more residents like Wang who represent the interests of residents. We feel Wang has
represented us well and should continue to serve as our voice on the Planning Commission.
It is not right that the current council majority has opportunistically attempted to use
Commissioner Wang’s focus on resident safety and staff accountability against him. Previous
city councils have not capriciously dismissed commissioners in this fashion nor should they in
the future. The attempted removal of Commissioner Wang is politically expedient for the new
council majority but it is unjust and unprecedented.
Commissioner Wang should serve out his term. You should be ashamed of yourselves for your
bad behavior and your collusion with the Rotary Club and Chamber of Commerce
Please reconsider the council’s actions to remove Wang from the Planning Commission or we
will start the recall process on March 11th.
Joe Yellow
Joe_yello@yahoo.com
Cupertino, California 95014
From:Chris DeRoche
To:City Council
Subject:DOLA at Monta Vista
Date:Saturday, March 4, 2023 8:46:10 AM
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Hello City Council Members,
I am writing in support of the DOLA at Monta Vista park. It has been great to let my dogs run in the allowed area.
We dog owners pay the same taxes everyone does and this is a very popular use of the park, same as tennis, or the
baseball fields. We who use the DOLA have been vigilant in following the rules outlined. It would be a mistake for
the city to take away the DOLA. Any decision to remove it is punishing those who have been using it responsibly.
I have heard there are complaints about DOLA dogs leaving the DOLA area. Dogs don't know the exact boundaries
of the DOLA, though most of them do a good job of staying within the perimeter. Those of use who use the DOLA
do our best to keep our dogs in the DOLA and are 99.9% successful. Every now and then there is a slip up, which is
quickly corrected.
I cannot speak to what other dog owners outside the DOLA do. Those dog owners should be held responsible for
their behaviors instead of punishing those of us who are following DOLA rules. Similarly, it would be unfair to
punish me for the poor driving of my neighbors. I have no authority over them. It just doesn’t make any sense.
It would be helpful for the city to invest in making the DOLA a success. So far, the city set up signs. How about a
small fence in strategic areas? Or some low shrubs to help define a perimeter. I notice there are fences around the
tennis courts and the baseball fields. Those are there because the city recognizes that some citizens want to enjoy
tennis or baseball, and they want to make sure other citizens can enjoy the park without worrying about the rare
errant ball flying by. We should have the same consideration given to the DOLA.
Also, I would like to invite representatives from the city to come and observe the DOLA at Monta Vista. This would
help the city be better informed on what is actually happening. This would be preferable to relying on a handful of
phone calls from a small group of crotchety, animal-hating citizens.
Getting rid of the DOLAs isn't going to solve the problem of a small set of dog owners not obeying park and city
rules around animal ownership. But it is going to punish the majority of local dog owners who are using the DOLA
responsibly.
I'd like to appeal directly to Council Member Chao. I voted for Ms. Chao specifically because she came to Monta
Vista park to talk to dog owners and support our push to have a DOLA. I am hoping she will still actively support
our DOLA.
Thank you,
Christopher DeRoche
650.919.4614
Cupertino Resident
From:Peggy Griffin
To:City Council
Cc:City Clerk
Subject:2023-03-07 City Council Mtg Agenda Item 4 - FIRST READING of committee eliminations and changes
Date:Saturday, March 4, 2023 3:45:45 PM
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recognize the sender and know the content is safe.
Please include this email as part of the 3-7-2023 City Council Meeting Written Communications for
Agenda Item 4 on CONSENT CALENDAR.
Dear City Council,
When reading the agenda for the upcoming City Council Meeting, it was not clear to me that Agenda
Item #4 was a SECOND READING. Nothing in the description of this agenda item specified that it was
a SECOND READING.
SUGGESTION: In the future, please indicate FIRST and SECOND readings of ordinances in their
agenda item description.
For people who attend meetings sporadically, this is very important and will save time and reduce
frustrations. Also, since just about anything has appeared under the Consent Calendar recently, it
can’t be assumed that just because an item is under Consent that it is actually a second reading.
Thank you.
Sincerely,
Peggy Griffin
From:Cathy Helgerson
To:Supervisor Joe Simitian; Loquist, Kristina; City Clerk; Miller, Amy; John Marvin; McCann, Lisa@Waterboards; Kitty
Moore; Congressman Ro Khanna; Hung Wei; Sheila Mohan; Liang Chao; J.R. Fruen;
Lisa.mccann@waterboard.ca.gov; gavin@gavinnewsom.com; FRYHOUSE@EARTHLINK.NET
Subject:Seeding the clouds
Date:Sunday, March 5, 2023 7:46:51 AM
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recognize the sender and know the content is safe.
Hello,
How much rain can we take?
Joe please stop this seeding of the clouds with Silver Iodide. Everything is so drenched with
rain water and the plants, trees are falling over, limbs are breaking off and the ground is
saturated.
I can not find out who is allowing this so my thoughts are that Santa Clara County or the PG &
E are allowing this. I can tell when this process is being done with what looks like jet streams
in the sky. They go every which way and so it is evident what is taking place. Manipulating
the weather is really making things worse. The ground needs time to dry out.
Seeding the clouds can be done from the air with drones or it can be done from the ground.
There is a great deal of information about it on the web.
My question is who is allowing it? The public should be made aware of this process and it
should be really investigated by Santa Clara County. Silver Iodide, the chemical most
commonly used to seed clouds, is known to be toxic and is regulated under the Clean Water
Act as a hazardous substance. This is also harmful to aquatic life.
It is also a fear in my mind that cloud seeding can also be used as a weapon of war that could
deprive certain regions of rainfall. These concerns are not hypothetical. In 2020 China
announced its "Sky River Plan" to divert water vapor from the Yangtze River basin to the
Yellow River basin, a cloud seeding initiative that would cover an area half the size of India.
This raises large governance questions about how to ethically divide water and who controls
the sky. Without clear policies, including international policy to address transboundary cases,
it is likely that the most powerful actors will benefit at the expense of others.
I am very concerned about all this, especially because it affects me personally. I have sore
throat, sinus congestion, headaches, problems with digestion, constipation and fatigue. It is
time to stop this cloud seeding and let nature get back to normal.
I have included others in this e-mail to see what they may know about this and maybe provide
SCC with information.
Check out Stop Spraying California - Spraying Biological & Chemicals, Agents in the United
States. California Chemtrail Information - Geoengineering & Chemtrails.
Please get back to me about this.
Thanks,
Cathy Helgerson - 408-253-0490
From:Peggy Griffin
To:City Council; Christopher Jensen
Cc:City Clerk
Subject:2023-03-07 City Council Mtg - ORAL COMMUNICATIONS - City"s Response to LWVCS lawsuit Oct 17 2022!
Date:Saturday, March 4, 2023 1:04:42 AM
Attachments:LWVCS v City of Cupertino-Citys Response Oct 17 2022.pdf
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recognize the sender and know the content is safe.
Please include this email and the attached document in the 3-7-2023 City Council Meeting Written
Communications for ORAL COMMUNICATIONS.
Dear City Council and City Attorney Jensen,
The League of Women Voters lawsuit regarding the city’s lobbyist registration ordinance that was
filed in July 2022 was “just in time for the election” fodder. There was a lot of publicity and noise
regarding this from the LWVCS. Since the election there has been nothing said regarding the status
of this lawsuit.
In searching for information/status regarding this lawsuit, I found that the City of Cupertino filed a
response on Oct. 17, 2022 blowing away the LWVCS’s case. This was important information to have
had during the election! It appears LWVCS has not responded to the city’s document.
Q1: What’s the status of this lawsuit?
Q2: Was this all an election ploy as it appears to have been?
Please give the residents an update on the status of this and all the other lawsuits against the city
(YIMBY Action, shed issue, etc.).
Sincerely,
Peggy Griffin
Reply I/S/O Mot. To Dismiss
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James M. Wagstaffe (95535) Michael von Loewenfeldt (178665) mvl@wvbrlaw.com WAGSTAFFE, VON LOEWENFELDT, BUSCH & RADWICK LLP 100 Pine Street, Suite 2250 San Francisco, CA 94111 Telephone: (415) 357-8900 Fax: (415) 357-8910 Attorneys for Defendants
CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION LEAGUE OF WOMEN VOTERS OF CUPERTINO-SUNNYVALE, Plaintiff, v. CITY OF CUPERTINO, et al. Defendants.
Case No. 22-cv-04189-JSW REPLY IN SUPPORT OF MOTION TO DISMISS Date: December 2, 2022 Time: 9:00 a.m. Ctrm: 5 Hon. Jeffrey S. White
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 1 of 19
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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................ 1
II. ARGUMENT .................................................................................................................... 2
A. LWVCS’s Silence Is Louder Than Its Words....................................................... 2
B. LWVCS’s Arguments Are Not Based On The City’s Ordinance......................... 3
C. Lobbyist Registration And Disclosure Laws Are Subject To Exacting Scrutiny Not Strict Scrutiny .................................................................................. 4
D. The Business or Organization Lobbyist Provision Is Not Overbroad .................. 6
E. The Expenditure Lobbyist Provision Is Not Overbroad ..................................... 10
F. Any Purported Constitutional Issue Can Be Resolved By A Narrowing Interpretation ....................................................................................................... 13
III. CONCLUSION ............................................................................................................... 14
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 2 of 19
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TABLE OF AUTHORITIES
Cases
Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1997 U.S. App. LEXIS 41260 (9th Cir. June 20, 1997) ........................ 11
Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) ........................................................................................ 13
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........................................................................................................ 13
Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ........................................................................................................ 11
Buckley v. Vallejo, 424 U.S. 1 (1976) .............................................................................................................. 5
Cal. Bldg. Indus. Ass’n v. State Water Res. Control Bd., 4 Cal. 5th 1032 (2018) .................................................................................................... 11
Citizens United v. FEC, 558 U.S. 310 (2010) .......................................................................................................... 5
City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022) ...................................................................................................... 4
Coates v. Cincinnati, 402 U.S. 611 (1971) ......................................................................................................... 2
Dumbrowski v. Pfister, 380 U.S. 479 (1965) ........................................................................................................ 13
Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975) ........................................................................................................ 13
Fair Political Practices Com. v. Superior Court, 25 Cal. 3d 33 (1979) ............................................................................................. 4, 10, 12
Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457 (11th Cir. 1996) ....................................................................................... 5, 10
Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) ............................................................................................ 5
Marquez-Reyes v. Garland, 36 F.4th 1195 (9th Cir. 2022) ......................................................................................... 14
Minn. Citizens Concerned for Life, Inc. v. Kelley, 427 F.3d 1106 (8th Cir. 2005) .......................................................................................... 5
Montanans for Cmty. Dev. v. Mangan, 735 Fed. Appx. 280 (9th Cir. 2018) .................................................................................. 5
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 3 of 19
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New York v. Ferber, 458 U.S. 747 (1982) .......................................................................................................... 2
Ohio Right to Life Soc’y v. Ohio Elections Comm’n, No. 2:08-cv-00492, 2008 U.S. Dist. LEXIS 79165 (S.D. Ohio Sep. 5, 2008) ................................................................................................... 6
Pierce v. Jacobsen, 44 F.4th 853 (9th Cir. 2022) ............................................................................................. 4
Police Dept. of City of Chicago v. Mosley, 408 U.S. 92 (1972) ............................................................................................................ 2
Prison Legal News v. Ryan, 39 F.4th 1121 (9th Cir. 2022) ..................................................................................... 9, 11
Reed v. Town of Gilbert, 576 U.S. 155 (2015) .......................................................................................................... 4
Sheridan Kalorama Historical Ass’n v. D.C. Bd. of Zoning Adjustment, 229 A.3d 1246 (D.C. 2020) ............................................................................................. 8
Stenberg v. Carhart, 530 U.S. 914 (2000) .......................................................................................................... 2
Summit Bank v. Rogers, 206 Cal. App. 4th 669 (2012) ........................................................................................... 4
Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994) .......................................................................................................... 4
United States v. Harriss, 347 U.S. 612 (1954) .................................................................................................... 4, 10
United States v. King, 24 F.4th 1226 (9th Cir. 2022) ......................................................................................... 11
United States v. Stevens, 559 U.S. 460 (2010) ................................................................................................ 2, 9, 11
United States v. Williams, 553 U.S. 285 (2008) .......................................................................................................... 2
Virginia v. Black, 538 U.S. 343 (2003) .......................................................................................................... 2
Watchtower Bible and Tract Socy. of New York v. Village of Stratton, 536 U.S. 150 (2002) .......................................................................................................... 5
Statutes
2 U.S.C. § 1603 ............................................................................................................................. 6
26 U.S.C. § 501(c)(3) .................................................................................................................... 8
26 U.S.C. § 501(h) ........................................................................................................................ 8
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 4 of 19
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Cal. Gov. Code § 86100 ................................................................................................................ 6
Cal. Gov. Code § 86115 ........................................................................................................ 10, 12
Cal. Gov. Code §§ 82039.5 ........................................................................................................... 6
Cupertino Municipal Code § 2.100.010 ...................................................................................... 14
Cupertino Municipal Code § 2.100.030(n) ................................................................................... 3
Cupertino Municipal Code § 2.100.030(o) ................................................................................... 3
Cupertino Municipal Code § 2.100.030(o)(2) .................................................................. 6, 7, 8, 9
Cupertino Municipal Code § 2.100.030(o)(3) .............................................................. 7, 9, 10, 12
Cupertino Municipal Code § 2.100.030(p)(2) ............................................................................ 11
Cupertino Municipal Code § 2.100.030(p)(9) .............................................................................. 7
Cupertino Municipal Code § 2.100.030(p)(10) ............................................................................ 8
Cupertino Municipal Code § 2.100.090 ........................................................................................ 9
Long Beach Mun. Code § 2.08.020(K)(2) .................................................................................... 6
Long Beach Mun. Code § 2.08.020(K)(3) ............................................................................ 10, 12
Sacramento Mun. Code § 2.15.050 ................................................................................... 6, 10, 12
San Diego Mun. Code § 27.4002 ............................................................................................ 6, 10
San Jose Mun. Code § 12.12.180(B) ............................................................................................ 6
San Jose Mun. Code § 12.12.180(C) .................................................................................... 10, 12
Santa Clara County Code § A3-62(j)(2) ....................................................................................... 6
Santa Clara County Code § A3-62(j)(3) ............................................................................... 10, 12
Santa Clara Mun. Code § 2.155.020(j)(2)..................................................................................... 6
Santa Clara Mun. Code § 2.155.020(j)(3)............................................................................. 10, 12
Other Authorities
Stemler, Platform Advocacy and the Threat to Deliberative Democracy, 78 Md. L. Rev. 105 (2018) ............................................................................................. 10
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 5 of 19
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I. INTRODUCTION
LWVCS’s opposition ignores the detailed statutory analysis presented in the moving
papers. It makes no serious attempt to analyze the specific language of the Cupertino Lobbyist
Registration Ordinance, how it compares to similar lobbying registration ordinances at the local,
state, or federal level, or how it comports with the existing body of law on registration and
reporting requirements. LWVCS does not even separately analyze each of the challenged
definitions of lobbyist, address the policies supporting each, or discuss the fit between those
policies and the Ordinance’s effect. Nor does LWVCS provide any legal analysis of why the
hypothetical applications of the law it insists will occur—despite Cupertino’s contrary
interpretation—would be unconstitutional in the first place.
Instead, LWVCS just declares ipse dixit that it is correct, and that the Ordinance is
“dangerously overbroad,” “onerous,” “invasive,” “confusing,” and “astonishing.” Adjectives
and hyperbole are no substitute for legal argument and provide no basis to facially invalidate a
democratically enacted statute.
There is nothing unusual about Cupertino’s Ordinance. It is essentially identical to the
County’s ordinance and those of other cities including the state capitol, Sacramento, and its
challenged provisions are similar to both state and federal lobbying law. Cupertino has a
legitimate, and indeed vital, interest in registration and disclosure of, not just “professional”
contract lobbyists, but also businesses or organizations that direct their paid staff to lobby on
their behalves, and expenditure lobbyists who fund “Astroturf” lobbying. LWVCS’s apparent
belief that only professional lobbyists, lobbying firms, and partisan political actors can
constitutionally be required to register as lobbyists has no basis in either constitutional law or
common practice. Cupertino’s Ordinance is not unconstitutional in any application, much less in
so many that it can be invalidated as facially overbroad. The Court should dismiss this action
without leave to amend.
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 6 of 19
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II. ARGUMENT
A. LWVCS’S SILENCE IS LOUDER THAN ITS WORDS
Before addressing the arguments LWVCS presents in its opposition, it is important to
note what LWVCS ignores.
LWVCS ignores the relevant registration and disclosure cases cited in the moving papers,
and cites none of its own. Instead, LWVCS presents an argument-by-snippet, citing generic
standards or isolated sentences from cases dealing with, for example, child pornography,1
picketing,2 animal cruelty,3 cross burning,4 and abortion.5 This is hardly an issue of first
impression; indeed, LWVCS admits that “lobbyist registration requirements across the country
have been upheld as constitutional.” Opp’n p. 2:7-8. LWVCS’ choice not to address any of the
relevant case law on this topic is telling.
Similarly, LWVCS ignores the other local, state, and federal lobbying laws cited in the
moving papers, including the basically identical laws enacted by the County in which Cupertino
is located, two neighboring cities, and several others in California. LWVCS makes no attempt to
show why Cupertino’s Ordinance is meaningfully different from these similar ordinances.
LWVCS also makes no attempt to distinguish between its eight causes of action,
confirming Cupertino’s position that they are effectively identical. See Mot. § IV.C.
Finally, LWVCS makes no attempt to justify its claims against numerous city officials in
their official capacity, presenting no opposition to the motion to dismiss those duplicative claims.
See Mot. § IV.B. With no further analysis required, the Court should dismiss each individual
defendant from the case.
1 See New York v. Ferber, 458 U.S. 747 (1982); United States v. Williams, 553 U.S. 285
(2008).
2 See Coates v. Cincinnati, 402 U.S. 611 (1971); Police Dept. of City of Chicago v. Mosley,
408 U.S. 92 (1972).
3 United States v. Stevens, 559 U.S. 460 (2010).
4 Virginia v. Black, 538 U.S. 343 (2003).
5 See Stenberg v. Carhart, 530 U.S. 914 (2000).
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B. LWVCS’S ARGUMENTS ARE NOT BASED ON THE CITY’S ORDINANCE
The arguments LWVCS does make are largely not tied to specific provisions of the
challenged Ordinance. Instead of analyzing the statutory language, or responding to the City’s
analysis of it, LWVCS continues to make exaggerated assertions about what the Ordinance
requires.
LWVCS insists that “members” or “volunteers” are regulated by the Ordinance, despite
no statutory language making them so. The opposition also adds “donors” to that baseless list. As
discussed in the moving papers, an individual is only required to register as a lobbyist if he or
she is a Contract Lobbyist (a category LWVCS does not challenge) or an Expenditure Lobbyist
(a category that has nothing to do with being a member, volunteer, or donor of any organization).
Mot. § IV(E)(2)(a); §.030(o)(1)-(3).
LWVCS also claims that the Ordinance applies to people speaking “in their individual
capacity” or making “personal complaints.” It cites no provision of the Ordinance for this
baseless argument. LWVCS even wildly asserts that “any person” could somehow be considered
a lobbyist based on a deliberate misreading of the definition section of the Ordinance:
The plain language of the Ordinance sweeps up far more than the “paid lobbyists” described in Cupertino’s Motion [citation] to designate a wide swath of interested citizens as “Lobbyists.” Under the Ordinance, a Lobbyist is any person who seeks to speak to an organ of Cupertino government “to influence a Legislative Action or Administrative Action of the City.” CMC § 2.100.030(n). As a result, any person who speaks to government, in any of its manifestations in the City, must consider [the Ordinance’s various requirements] in case the Ordinance is applied to them by Cupertino enforcement authorities.
Opp’n p. 9:1-10. This argument is a blatant misrepresentation, and amply illustrates the baseless
nature of this lawsuit. Section .030(n) does not define Lobbyist, it defines Lobbying. The
Ordinance does not regulate lobbying. It only regulates three specific categories of Lobbyists
under section .030(o)(1)-(3). There are absolutely no requirements imposed on people who do
not meet one of the three definitions of Lobbyist—Contract, Business or Organization, or
Expenditure—whether or not they engage in speech that falls within the definition of lobbying.
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LWVCS argues that the Ordinance creates “confusion” about “whether a League member
who has advocated for candidate forums must register to make her personal complaint about
garbage collection.” Opp’n p. 10:20-22. There is no confusion. Nothing in the Ordinance
requires anyone to register as a lobbyist before making personal complaints about anything. An
ordinance is not unconstitutional just because someone aggressively insists on misreading it.
Nothing in Cupertino’s Ordinance requires individuals who want to speak to government on their
own behalves, or without compensation for others, to register as lobbyists.
C. LOBBYIST REGISTRATION AND DISCLOSURE LAWS ARE SUBJECT TO EXACTING SCRUTINY NOT STRICT SCRUTINY
In a footnote, LWVCS attempts to redefine the standard of review as strict scrutiny.
Opp’n p. 5 n.3. It argues ipse dixit that the clear rule from Citizens United discussed in the
moving papers does not apply to lobbyist registration but to “a wholly different context with
fundamentally different government interests.” LWVCS cites Pierce v. Jacobsen, 44 F.4th 853
(9th Cir. 2022), which invalidated a Montana ban on non-residents collecting signatures in
support of ballot initiatives, id. at 863, and Summit Bank v. Rogers, 206 Cal. App. 4th 669
(2012), which invalidated a criminal bank libel statute as violating the First Amendment. Id. at
691-92. Later in its brief, Plaintiff also cites Reed v. Town of Gilbert, 576 U.S. 155 (2015)—a
sign ordinance case 6—and Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)—which held that a
“must carry” provision in the Cable Television Consumer Protection and Competition Act of
1992 was content-neutral.7
LWVCS is simply wrong. A lobbyist registration and disclosure ordinance does not
restrict or prohibit any speech. United States v. Harriss, 347 U.S. 612, 626 (1954); Fair Political
Practices Com. v. Superior Court, 25 Cal. 3d 33, 47 (1979) (“FPPC”). Citizens United applied
6 Although not relevant given the clear law setting the standard for lobbyist registration
and disclosure, we note that LWVCS over-simplifies Reed’s content based analysis. A law is not
content based simply because the content of speech is relevant to the law’s application. See City
of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1473-74 (2022) (sign
ordinance was content-neutral even though the sign’s content was relevant).
7 LWVCS makes no attempt to defend the argument in its complaint that the Ordinance is
somehow a “prior restraint” or compels speech. (See Mot. p. 7:3-13.)
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“exacting scrutiny” to “disclaimer and disclosure requirements” for the same public policy
reasons at issue in Harriss. Citizens United v. FEC, 558 U.S. 310, 366-67 (2010); see also
Buckley v. Vallejo, 424 U.S. 1, 64-68, 80 (1976). Because they do not regulate what can be said,
registration and disclosure requirements are governed by exacting scrutiny, not strict scrutiny.
See Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 459-60 (11th Cir. 1996);
Montanans for Cmty. Dev. v. Mangan, 735 Fed. Appx. 280, 284 (9th Cir. 2018); Human Life of
Wash., Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010).8
LWVCS does not cite any case that has invalidated a lobbyist or other politically related
registration and reporting law as “content based.” Instead, it argues that Cupertino’s Ordinance is
“hardly different from the regulations on solicitation struck down” in Watchtower Bible and
Tract Socy. of New York v. Village of Stratton, 536 U.S. 150 (2002). Opp’n p. 8. Watchtower
challenged an ordinance prohibiting “canvassers” “from going on private property for the
purpose of explaining or promoting any ‘cause’” without a permit. The Supreme Court noted that
“[f]or over 50 years, the Court has invalidated restrictions on door-to-door canvassing and
pamphleteering.” Id. at 160. “It is offensive—not only to the values protected by the First
Amendment, but to the very notion of a free society—that in the context of everyday public
discourse a citizen must first inform the government of her desire to speak to her neighbors and
then obtain a permit to do so.” Id. at 165-66.
The assertion that Cupertino’s commonplace lobbyist registration statute is akin to
requiring anyone who wants to talk to a neighbor to get a permit before doing so is risible. As the
Southern District of Ohio noted in rejecting the same argument, “Watchtower involved neither
candidate election related disclosure, nor lobbying disclosure. The Watchtower Court struck
down a municipal license requirement for door-to-door canvassing, but gave no consideration
whatsoever to the unique government interests at stake in the context of candidate election
8 We note that the Eighth Circuit has upheld similar laws under strict scrunity without
analyzing whether that standard applies. Minn. Citizens Concerned for Life, Inc. v. Kelley, 427
F.3d 1106, 1111 (8th Cir. 2005); Minn. State Ethical Practices Bd. v. Nat'l Rifle Asso., 761 F.2d
509, 511 (8th Cir. 1985).
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advertising and lobbying.” Ohio Right to Life Soc’y v. Ohio Elections Comm’n, No. 2:08-cv-
00492, 2008 U.S. Dist. LEXIS 79165, at *31 (S.D. Ohio Sep. 5, 2008).
The appropriate standard here is exacting scrutiny. LWVCS does not even attempt to
show that standard is not met.
D. THE BUSINESS OR ORGANIZATION LOBBYIST PROVISION IS NOT OVERBROAD
As discussed in the moving papers, the Business or Organization Lobbyist provision
regulates businesses or other non-natural persons that instruct their paid officers or employees to
lobby on behalf of the business or organization. §.030(o)(2). This type of regulation is common
in other cities,9 as well as in state and federal law. Cal. Gov. Code §§ 82039.5, 86100(a)(2);
2 U.S.C. § 1603(a)(1).
LWVCS does not cite any case finding such a provision to be unconstitutional. Indeed,
LWVCS never really explains why it thinks the Business or Organization Lobbyist provision—
section .030(o)(2)—is unconstitutional. It simply insists, without any legal analysis, that
hypotheticals it posits show that it is. LWVCS makes no response to Cupertino’s showing of the
interests promoted by the Ordinance. Mot. § IV.E.3. It presents no argument about how those
interests are, or are not, met by the hypothetical applications of the Ordinance it poses.
Scattered through LWVCS’s opposition is the implication that the government is
somehow only allowed to regulate “professional lobbyists” (Opp’n p. 10) or “corporate
lobbying” (Opp’n pp. 10, 12), but cannot regulate non-profits. LWVCS also insists that it is
somehow improper to regulate lobbying by “nonpartisan” or “apolitical” groups. Opp’n p. 1.
LWVCS cites no authority for these assertions. As discussed in the moving papers, the
government’s interest extends well beyond “professional” lobbyists and similar laws frequently
regulate non-profits. Mot. pp. 12-13 (citing authority). LWVCS makes no response on these
points.
9 See Santa Clara County Code § A3-62(j)(2); San Jose Mun. Code § 12.12.180(B); Santa
Clara Mun. Code § 2.155.020(j)(2); Long Beach Mun. Code § 2.08.020(K)(2); Sacramento Mun.
Code § 2.15.050; San Diego Mun. Code § 27.4002.
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LWVCS also continues to misrepresent the Business or Organization Lobbyist definition
and exemptions. LWVCS repeatedly argues that if an organization is a lobbyist under section
.030(o)(2), then its employees or members must also register. Opp’n p. 11:16-17, 13:25, 13:28.
As discussed above, an individual cannot—by definition—be a Business or Organization
Lobbyist. Nor can donating to an organization make someone an Expenditure Lobbyist.
§.030(o)(3) (“The five thousand dollar ($5,000.00) threshold shall not include … dues
payments, donations, or other economic consideration paid to an Organization, regardless of
whether the dues payments, donations or other economic consideration are used in whole or in
part to lobby.”). Nothing in the Ordinance subjects individuals to any obligation or risk based on
their relationship with a Business or Organization Lobbyist. LWVCS just makes that up.
Moreover, as discussed in the moving papers, because individuals are not regulated
Business or Organization Lobbyists under that provision, the applicable exemptions that are
geared toward individual action mean that such exempted action does not count for determining
whether an organization is a lobbyist. Mot. p. 13. LWVCS makes no attempt to show why that
acknowledgment is unreasonable. Nor does it explain why those exemptions would have any
meaning if they only applied to the employees or officers themselves when such persons are, by
definition, not regulated lobbyists in the first place.
Abandoning most of the hypotheticals discussed in the complaint and moving papers,
LWVCS relies on four as allegedly “unconstitutional” applications of the Ordinance. It ignores
Cupertino’s explanation that none are subject to the Ordinance in the first place and, in all
events, fails to show how any would be unconstitutional.
First, LWVCS argues that a religious organization might send a minister to “speak to a
councilmember to muster support for an affordable housing project.” Opp’n pp. 7, 12. As
discussed in the moving papers, a religious organization is a 501(c)(3) and speech by its
employee—the minister—is exempt under section .030(p)(9). Cupertino does not regulate this
hypothetical conduct. But even if it did, LWVCS offers no authority for its assertion that the
Constitution requires allowing religious organizations to pay their employees to lobby without
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registration. LWVCS argues that registering would “jeopardize” the institution’s tax exemption.
But that argument confuses cause and effect.
Section 501(c)(3) provides tax exempt status to qualifying organizations if “no
substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to
influence legislation…” 26 U.S.C. § 501(c)(3). Section 501(h) allows some level of lobbying,
but that exception does not apply to religious organizations. 26 U.S.C. § 501(h)(5)(A). It is thus
substantial lobbying activity—as defined by federal tax law—that would jeopardize a 501(c)(3)’s
tax exempt status, not registration under a local lobbyist registration statute. See Sheridan
Kalorama Historical Ass’n v. D.C. Bd. of Zoning Adjustment, 229 A.3d 1246, 1258 (D.C. 2020)
(required registration with the Senate irrelevant to 501(c)(3) status where lobbying “was not
substantial enough to threaten its tax exemption”.)
Second, LWVCS posits that a “neighborhood group” might “encourage all of its
members to write to the Community Development Department to oppose” a building project.
Opp’n p. 7. Unless a neighborhood group hired its “members” as employees to do so—i.e. paid
them to lobby—the group is not a lobbyist under .030(o)(2) in the first place. And members of
neighborhood groups are expressly exempt under .030(p)(10) in any event. Nothing supports
LWVCS’s assertion that a neighborhood group must register as a lobbyist even where there is no
lobbying governed by the Ordinance because any activity is exempt. And, again, LWVCS offers
no explanation for why the Constitution would prohibit the City from requiring a group that paid
its members to lobby to register as a lobbyist, even if exemption .030(p)(10) did not exist.
Similarly, LWVCS argues that “a school PTA asking its members to meet with their
councilmembers about road construction” would make the PTA a lobbyist. Opp’n p. 7. Parents
pay to join the PTA, not the other way around. PTA members are not employees of the PTA or
paid by the PTA to do anything, and thus the PTA is not a lobbyist under .030(o)(2)—unless, of
course, the PTA directs paid employees to engage in lobbying on its behalf, in which case it
would be subject to the same rules as any other entity that pays for lobbying.
LWVCS also argues that it cannot send a representative to discuss the advertisement of
polling locations. As explained in the moving papers, that is not lobbying at all because it does
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not involve Legislative Action or Administrative Action, and, unless LWVCS is paying that
representative more than just reasonable expenses, such contact would not make LWVCS a
lobbyist in any event. Mot. p. 9. LWVCS just ignores these points in its opposition.
LWVCS is a 501(c)(4) entity that is allowed to lobby. But it argues that a related
501(c)(3) Fund—not a party to this case—would have its tax exempt status “jeopardized” if it
had to register as a lobbyist. Opp’n pp. 13-14. LWVCS provides no meaningful explanation for
why the Fund would ever qualify as a lobbyist under section .030(o)(2). It argues that providing
support to LWVCS would make the Fund a lobbyist because the term “influencing” is defined
broadly. Opp’n p. 14. But the Ordinance does not regulate “influencing;” it regulates lobbyists.
Neither §.030(o)(2) nor §.030(o)(3) make an entity a lobbyist because it provides financial
support to another entity.
And, as discussed above, substantial lobbying activity is what jeopardizes a 501(c)(3)’s
tax exemption, not registration. In all events, LWVCS provides no authority for its assertion that
the tax-exempt status of an entity is a relevant consideration for whether a lobbyist registration
law is constitutional.
LWVCS also argues that the Fund should not be required to disclose its donor and
membership lists. Opp’n p. 14. Nothing in the Ordinance requires any registered Business or
Organization Lobbyists to disclose their donors or membership lists. §.090. Once again, LWVCS
just invents this strawman to attack it.
In sum, none of LWVCS’ strained hypotheticals address conduct regulated by the
Ordinance, but even if they did, LWVCS does not show that any such application would violate
the Constitution. And in all events, the fact that there could be some hypothetical
unconstitutional application of the Ordinance does not support LWVCS’s claims. As LWVCS
admits, this is a facial overbreadth challenge. A law may be facially challenged for First
Amendment overbreadth only if “a substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 U.S. at 473; Prison
Legal News v. Ryan, 39 F.4th 1121, 1129 (9th Cir. 2022). LWVCS does not come close to
showing that a substantial number of the Ordinance’s applications are unconstitutional when
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compared to its legitimate sweep. It does not even try to do so. Thus, LWVCS’s facial
overbreadth claim must also be denied on this basis.
E. THE EXPENDITURE LOBBYIST PROVISION IS NOT OVERBROAD
The other challenged provision—Expenditure Lobbyist—regulates persons who pay for
advertising or public relations to cause other people to lobby state officials directly. § .030(o)(3).
Again, similar provisions exist in other cities,10 and in state law. Cal. Gov. Code § 86115(b);
FPPC, 25 Cal.3d at 46. Indeed, LWVCS admits in its complaint that this provision “fall[s] more
or less within the traditional definition of lobbying, meaning influencing city action for
compensation.” Complaint ¶ 42. This provision protects the government interest in identifying
the source of legislative pressure and informing the public of the same. Harriss, 347 U.S. at 620,
625; Fla. League of Prof’l Lobbyists, 87 F.3d at 461; Minn. State Ethical Practices Bd., 761 F.2d
at 513; see Stemler, Platform Advocacy and the Threat to Deliberative Democracy, 78 MD. L.
REV. 105 (2018).
LWVCS makes no effort to show that these interests do not apply or that they are
somehow not advanced by Cupertino’s Ordinance. LWVCS’s entire argument against the
Expenditure Lobbyist provision seems to be that one of its “members” publishes a newsletter
called “Cupertino Matters” which, among other things, urges residents to contact their public
officials about various matters. LWVCS claims that the newsletter’s author no longer advocates
such action because she is “chilled” by “uncertainty” over whether she needs to register as an
Expenditure Lobbyist.
First, even if we were to assume arguendo that the Ordinance cannot constitutionally be
applied to the author of this newsletter, one example does not make the Expenditure Lobbyist
provision overbroad. LWVCS makes no attempt to show that “a substantial number of [this
provision’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate
10 See Santa Clara County Code § A3-62(j)(3); San Jose Mun. Code § 12.12.180(C); Santa
Clara Mun. Code § 2.155.020(j)(3); Long Beach Mun. Code § 2.08.020(K)(3); Sacramento Mun.
Code § 2.15.050; San Diego Mun. Code § 27.4002.
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sweep.” Stevens, 559 U.S. at 473; Prison Legal News, 39 F.4th at 1129. The Court does not need
to address this example in the absence of the requisite larger showing.
Second, as Cupertino has already explained, this newsletter is exempt under the media
exemption, section .030(p)(2).11 Desperate to justify its lawsuit, LWVCS insists that the media
exemption only applies to “professional journalists.” Opp’n p. 11. Once again, LWVCS just
ignores the statutory language, which says nothing about professional journalists.
Section .030(p)(2) exempts “The Media, when limiting its action to the ordinary course
of news gathering or editorial activity, as carried out by members of the press. ‘Media’ shall
mean newspapers or any other regularly published periodical, radio or television station or
network or information published on the Internet. This exemption does not apply to individuals
conducting media activities when that individual would otherwise qualify as a Contract Lobbyist
under this chapter.” §.30(p)(2).
A newsletter regularly “published on the Internet” falls within the defined meaning of
“Media” in section .030(p)(2). The exemption applies to such a newsletter if it contains “news
gathering or editorial activity, as carried out by members of the press.” “As carried out by
members of the press” does not mean that only professional journalists qualify; it explains what
“news gathering or editorial activity” means: the type of activity carried out by members of the
press. As described in the complaint and the opposition, the “Cupertino Matters” newsletter
clearly publishes the type of news gathering and editorial information anticipated by this
provision. Nothing in the Ordinance limits this exemptions application to “professional
journalists.” LWVCS just makes that up.
11 LWVCS claims that the Cupertino Matters publication was “specifically called out” by
one councilmember. Opp’n p. 11; Complaint ¶ 34. California law is clear: “we do not consider
the motives or understandings of individual legislators who voted for a statute when attempting
to construe it.” Cal. Bldg. Indus. Ass’n v. State Water Res. Control Bd., 4 Cal. 5th 1032, 1042-43
(2018); Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1997 U.S. App. LEXIS 41260, at
*17-18 (9th Cir. June 20, 1997). LWVCS also claims that the same councilmember opined in
2022 that news media were engaged in lobbying. Complaint ¶ 38. Post-enactment statements by
legislators are also “not a legitimate tool of statutory interpretation.” United States v. King, 24
F.4th 1226, 1232 (9th Cir. 2022) (quoting Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011)).
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LWVCS also argues that there is some uncertainty about whether its annual expenses are
aggregated with this one member’s for purposes of whether she is an Expenditure Lobbyist
because she is a member of LWVCS. LWVCS invents that concern too. It points to no language
in the Ordinance even suggesting that members of an organization are treated as personally
responsible for expenditures of the organization. Finally, insisting that its member is not covered
by the press exemption, LWVCS argues that she “may continue to call for community action but
only to the extent that doing so costs her less than $5,000.” Opp’n p. 12. LWVCS calls this
“astonishing” but makes no legal argument as to why $5,000 per year is an impermissible
threshold to require registration of expenditure lobbyists. Nor, as discussed above, does LWVCS
make any legal argument that requiring expenditure lobbyists to register is generally
unconstitutional.
There is nothing “astonishing” about this threshold. The law upheld in FPPC required
registration for spending more than $250 in any month ($3,000 per year) on lobbying activities.
FPPC, 25 Cal. 3d at 46. California Government Code section 86115 currently triggers at $5,000
per quarter, but that covers activity across the whole state, not just one small city. Cal. Gov.
Code § 86115(b). Long Beach, Sacramento, Santa Clara County, Santa Clara City, and San Jose
all have the same $5,000 a year threshold as Cupertino.12
And the Ordinance does not apply to any “call for community action.” It only applies to
“soliciting or urging, directly or indirectly, other Persons to communicate directly with any City
Official in order to attempt to influence Legislative Action or Administrative Action.”
§.030(o)(3).
LWVCS thus makes no showing that any application of the Expenditure Lobbyist
provision is unconstitutional, much less that its unconstitutional sweep is so broad as to justify
striking down the Ordinance as facially overbroad.
12 See Santa Clara County Code § A3-62(j)(3); San Jose Mun. Code § 12.12.180(C); Santa Clara
Mun. Code § 2.155.020(j)(3); Long Beach Mun. Code § 2.08.020(K)(3); Sacramento Mun. Code
§ 2.15.050.
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F. ANY PURPORTED CONSTITUTIONAL ISSUE CAN BE RESOLVED BY A NARROWING INTERPRETATION
As discussed above, LWVCS fails to show any unconstitutional application of the
Business or Organization Lobbyist or Expenditure Lobbyist provisions of Cupertino’s Lobbying
Ordinance. That should end the inquiry and warrant granting this motion to dismiss. But even if
the Court has some reservations about a particular hypothetical, it should resolve them by
construing the statute in a manner that preserves its constitutionality.
A law cannot be facially invalidated as overbroad where “a limiting construction has
been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973). “It is a well-established principle that statutes will be interpreted to avoid constitutional
difficulties. Thus, where an unconstitutionally broad statute is readily subject to a narrowing
construction that would eliminate its constitutional deficiencies, we accept that construction.”
Berger v. City of Seattle, 569 F.3d 1029, 1046 (9th Cir. 2009) (cleaned up).
LWVCS insists without meaningful discussion that the Ordinance cannot be construed in
a constitutional manner, citing Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975), and
Dumbrowski v. Pfister, 380 U.S. 479 (1965). Opp’n p. 15. Neither case is in any way analogous.
Erzoznik invalidated an ordinance prohibiting drive-in theaters from showing movies containing
nudity. 422 U.S. at 206-07. That restriction went far beyond what the Court’s obscenity
jurisprudence allows. Id. at 213. As for a limiting construction, none was presented to the Court
and prior state cases applying the ordinance had not imposed one. Id. at 216-17 & n.15.
Similarly, Dumbrowski allowed civil rights workers to challenge the Louisiana
Subversive Activities and Communist Control Law and the Communist Propaganda Control
Law, finding, in relevant part, that making it a felony to support “any subversive organization”
was unconstitutionally vague. 380 U.S. at 494. The Court unsurprisingly could not conceive of a
proper limiting construction for these offensive laws that were being used “to discourage
appellants’ civil rights activities.” Id. at 490-91.
Neither case bears any relationship to this one. Cupertino has clearly presented its
reasonable interpretation of the Ordinance in its moving papers. That interpretation—which does
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not regulate most, if not all, of the conduct LWVCS claims requires registration—is both a
reasonable interpretation of any ambiguous language and consistent with the Ordinance’s
express intent “to impose registration and disclosure requirements on those engaged in efforts to
influence the decisions of City policy makers for Compensation.” §.010. To the extent the Court
finds any portions of the Ordinance ambiguous in a manner that calls into question its
constitutionality, the Court should—as required—construe the Ordinance in a constitutional
manner.
III. CONCLUSION
“[O]verbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” Marquez-
Reyes v. Garland, 36 F.4th 1195, 1201 (9th Cir. 2022) (citation omitted). Here, LWVCS has
failed to show any unconstitutional application of the Cupertino Lobbyist Registration
Ordinance, much less that it is fatally overbroad. Nor does it argue that these legal questions can
be altered by alleging additional facts. Cupertino’s motion should be granted, and this action
dismissed without leave to amend.
Respectfully submitted,
DATED: October 17, 2022 WAGSTAFFE, VON LOEWENFELDT,
BUSCH & RADWICK LLP
By
MICHAEL VON LOEWENFELDT
Attorneys for Defendants
CITY OF CUPERTINO, DARCY PAUL, DIANE
THOMPSON, KIRSTEN SQUARCIA, CHRIS
JENSEN, LIANG CHAO, KITTY MOORE,
HUNG WEI, and JOHN WILLEY
Case 4:22-cv-04189-JSW Document 39 Filed 10/17/22 Page 19 of 19
From:Peggy Griffin
To:Christopher Jensen; City Council
Cc:City Clerk
Subject:RE: Lawsuit status Case#23CV410817 - Yimby Law and CA HDF vs. City of Cupertino
Date:Saturday, March 4, 2023 12:26:08 AM
Attachments:YIMBY Action Trademark Issue - Attorney JR Fruen.pdf
2023-02-17 Proof of Summons by Anne Paulson.pdf
CalHDF & YIMBY v. Cupertino Petition Stamped.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Please include this REVISED email and all attachments as part of the 3-7-2023 City Council Meeting
Written Communication for ORAL COMMUNICATIONS.
Dear City Council and City Attorney Jensen,
I forgot to include the link to the YIMBY Action trademark dispute that appears to be still active.
US Trademark Dispute: https://ttabvue.uspto.gov/ttabvue/v?pno=91269608
I’ve also attached a PDF with the information. Councilmember Fruen is the attorney representing
YIMBY Action. Please note that on Page 4 of 7 of “YIMBY Action Trademark Issue – Attorney JR
Fruen.pdf”, top of page, #3 “YIMBY Action maintains a network of chapters and affiliated
organizations throughout California and the United States who share some or all of its policy aims,
and with whom it shares information and expertise.”
As their attorney, Councilmember Fruen should not be involved in any actions or decisions regarding
this lawsuit.
Sincerely,
Peggy Griffin
From: Peggy Griffin <griffin@compuserve.com>
Sent: Saturday, March 4, 2023 12:13 AM
To: 'Christopher Jensen' <ChristopherJ@cupertino.org>; 'City Council' <CityCouncil@cupertino.org>
Cc: 'City Clerk' <CityClerk@cupertino.org>
Subject: Lawsuit status Case#23CV410817 - Yimby Law and CA HDF vs. City of Cupertino
Please include this email and all attachments as part of the 3-7-2023 City Council Meeting Written
Communication for ORAL COMMUNICATIONS.
Dear City Council and City Attorney Jensen,
I’m sure you are aware that a suit was filed against the City of Cupertino by Yimby Law and California
Housing Defense Fund. Nothing has been mentioned in ANY city meeting and there has not been any
Closed Session pertaining to this suit. According to public documents, the city was served on
2/17/2023.
REQUEST: Please bring the public and Council up to date on the status of this lawsuit.
CONCERN: I am concerned about the close association of Councilmember Fruen with the petitioners.
He has done work with them and should possibly be recused from participating in any Closed
Sessions. All other members of Council should be reminded that information received during a
Closed Session should not leave the room or be shared with anyone.
Attached are:
CalHDF and YIMBY v. Cupertino Petition Stamped (filed 2/3/2023)
2023-02-17 Proof of Summons by Anne Paulson (hand delivered to Cupertino on 2-17-2023)
Sincerely,
Peggy Griffin
Trademark Trial and Appeal Board Electronic Filing System.https://estta.uspto.gov
ESTTA Tracking number:ESTTA1137160
Filing date:05/29/2021
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
Notice of Opposition
Notice is hereby given that the following party opposes registration of the indicated application.
Opposer Information
Name YIMBY Action
Granted to Date
of previous ex-
tension
05/29/2021
Address 1260 MISSION ST
SAN FRANCISCO, CA 94103
UNITED STATES
Attorney informa-
tion
JOSEPH RYAN FRUEN
MARKS MATTER - SP
6445 BOLLINGER RD
CUPERTINO, CA 95014
UNITED STATES
Primary Email: jrfruen@marksmatter.com
Secondary Email(s): jrfruen@gmail.com
4088282859
Docket Number
Applicant Information
Application No.88805531 Publication date 03/30/2021
Opposition Filing
Date
05/29/2021 Opposition Peri-
od Ends
05/29/2021
Applicant Fedak, Nikolai
1 WEST STREET, APARTMENT 2408
NEW YORK, NY 10004
UNITED STATES
Goods/Services Affected by Opposition
Class 037. First Use: 2011/09/28 First Use In Commerce: 2011/09/28
All goods and services in the class are opposed, namely: Providing information and commentary
inthe field of real estate development
Grounds for Opposition
The mark is merely descriptive Trademark Act Section 2(e)(1)
No use of mark in commerce before application
or amendment to allege use was filed
Trademark Act Sections 1(a) and (c)
The mark is not inherently distinctive and has not
acquired distinctiveness
Trademark Act Sections 1, 2 and 45; and Section
2(f)
Fraud on the USPTO In re Bose Corp., 580 F.3d 1240, 91 USPQ2d
1938 (Fed. Cir. 2009)
Related Proceed-
ings
Opposer YIMBY Action has a pending application for a composite mark contain-
ing the literal element YIMBY under serial number 90155913
Attachments Opposer YIMBY Action - Notice of Opposition to Serial No 88805531 as
filed.pdf(1807615 bytes )
Signature /Joseph Ryan Fruen/
Name JOSEPH RYAN FRUEN
Date 05/29/2021
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 2/27/2023 11:49 AM
Reviewed By: R. Fleming
Case #23CV410817
Envelope: 11289413
23CV410817
Santa Clara – Civil
R. Fleming
POS-O 1 0
A'ITORNEY OR PARTY WITHOUT ATTORNEY (Name,State Bar number,and addlem):
FOR COURT usKeithDlggs(State Bar #3441 82)E ouLv
YIMBY Law
57 Post Street #908
San Francisco,CA 94104
TELEPHONE N0;(703)409—5198 FAX No.(Optional):
E.MAIL ADDRESS (Optional):keith@yimbylaw.org
ATTORNEY FOR (Name):Yes In My Back Yard
SUPERIOR COURT OF CALIFORNIA,COUNTY OF SANTA CLARA
STREET ADDRESS:191 First Street
MAILINGADDRESS:191 First Street
cm AND ZIP CODE:San Jose,CA 951 13
BRANCH NAME:Downtown Superior Court
PLAINTIFFIPETITIONER:(w/Califomia Housing Defense Fund)Yes In My Back Yard CASE NUMBER:
DEFENDANT/RESPONDENT:City of Cupertino 230V“081 7
Ref.No.or File No.:PROOF OF SERVICE OF SUMMONS
(Separate proof of service is required for each party served.)
1.At the time of service l was at least 18 years of age and not a party to this action.
2.l sewed copies of:
a.E summonsDcomplaintEAlternative Dispute Resolution (ADR)packageECivilCaseCoverSheet(served in complex cases only)D cross-oomplaintEother(specfiy documents):Verified Petition for Writ of Mandate;Civil Lawsuit Notice
Party served (special name of party as shown on documents served):
City of Cupenino
b.E Person (other than the party in item 3a)served on behalf of an entity or as an authorized agent (and not a person
under item 5b on whom substituted service was made)(specify name and relationship to the party named in item 3a):
Lauren Sapudar,Deputy C'rty Clerk
4.Address where the party was sewed:
10300 Torre Avenue,Cupeflino.CA 95014
5.I served the party (check proper box)
a.E by personal service.I personally delivered the documents listed in item 2 to the party or person authorized to
receive service of process for the party (1)on (date):2/1 7/2023 (2)at (time):11:10am
wrhsvszpv
b.D by substituted service.On (date):at (time):I left the documents listed in item 2 with or
in the presence of (name and title or relationship to person indicated in item 3):
(1):(business)a person at least 18 years of age apparently in charge at the office or usual place of business
of the person to be sewed.l infomed him or her of the general nature of the papers.
(2)E (home)a competent member of the household (at least 18 years of age)at the dwelling house or usual
place of abode of the party.l informed him or her of the general nature of the papers.
(3)E (physical address unknown)a person at least 18 years of age apparently in charge at the usual mailing
address of the person to be sewed,other than a United States Postal Service post office box.|informed
him or her of the general nature of the papers.
(4)E |thereafter mailed (by first-class,postage prepaid)copies of the documents to the person to be served
at the place where the copies were left (Code Civ.Proc.,§41 5.20).|mailed the documents on
(date):from (city):or:a declaration of mailing is attached.
(5)E |attach a declaration of diligence stating actions taken first to attempt personal service.
Page10f2
FTmfiimfll'fifmcm“PROOF 0F SERVICE 0F summons CWWCiW-Pmm-“171°
Pos-mo [Rem Jammy 1.2007}
POS-O1 0
PLAINTIFFIPETITIONER:(wlCalifomia Housing Defense Fund)Yes In My Back Yard CASE NUMBER:
DEFENDANTIRESPONDENT:City of Cupertino 236V41 081 7
5.c.E by mail and acknowledgment of receipt of service.I mailed the documents listed in item 2 to the party,to the
address shown in item 4,by first—class mail,postage prepaid,
(1)on (date):(2)from (city):
(3)E with two copies of the Notice and Acknowledgment of Receipt and a postage-paid retum envelope addressed
to me.(Attach completed Notice and Acknowledgement of Receipt.)(Code Civ.Proc.,§41 5.30.)
(4)E to an address outside California with return receipt requested.(Code Civ.Proc..§415.40.)
d.E by other means (specify means of service and authorizing code section):
D Additional page describing service is attached.
6.The "Notice to the Person Sewed"(on the summons)was completed as follows:
a.E as an individualdefendant.
b.E as the person sued under the fictitious name of (specify):
c.E as occupant.
d.E On behalf of (specify):
under the following Code of Civil Procedure section:E 416.10 (corporation)S 415.95 (business organization,form unknown)E 416.20 (defunct corporation)E 416.60 (minor)E 416.30 (ioint stock oompany/association)[j 416.70 (ward or conservatee)E 416.40 (association or partnership)E 41 6.90 (authorized person)E 416.50 (public entity)E 415.46 (occupant)E other:
7.Person who served papets
a.Name:Anne Paulson
Address:1299 Eva Avenue,Los Altos,CA 94024
Telephone number:(650)279-7743
The fee for service was:$
9.0-9.0"
I am:
(1)E not a registered Califomia process server.
(2)E exempt from registration under Business and Professions Code section 22350(b).
(3)D a registered California process sewer:
(i)E owner [j employee E independent contractor.
(ii)Registration No.:
(iii)County:
8.E I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
or
9.D l am a California sheriff or marshal and I certify that the foregoing is true and curred.
2
l
u 7 /'25 2 3
Date:?
Anne Paulson ’(£7fJ/jM/f7m
{NAME OF PERSON WHO SERVED PAPERSISHERIFF 0R MARSHAL)(SIGNATURE;
Posmo [Rn January 1.20071 PROOF OF SERVICE OF SUMMONS "9”“
For your protection and privacy,please press the Clear
ms Form button afteryou have printedthe form.Printthis form
||
Save this form]Clearthis form
-1-
VERIFIED PETITION FOR WRIT OF MANDATE
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Dylan Casey
CALIFORNIA HOUSING DEFENSE FUND
360 Grand Avenue #323
Oakland, CA 94160
(443) 223-8231
No fax number
dylan@calhdf.org
State Bar No. 325222
Attorney for Petitioner California Housing Defense Fund
Keith E. Diggs
YIMBY LAW
57 Post Street #908
San Francisco, CA 94104
(703) 409-5198
No fax number
keith@yimbylaw.org
State Bar No. 344182
Attorney for Petitioner Yes In My Back Yard
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
CALIFORNIA HOUSING DEFENSE FUND, a
California nonprofit public benefit corporation;
and YES IN MY BACK YARD, a California
nonprofit public benefit corporation;
Petitioners,
v.
CITY OF CUPERTINO,
Respondent.
Case No.:
VERIFIED PETITION FOR WRIT OF
MANDATE
(Code Civ. Proc. § 1085; Gov. Code §§ 65587,
65751)
Petitioners CALIFORNIA HOUSING DEFENSE FUND and YES IN MY BACK YARD allege as
follows:
1. “California has a housing supply and affordability crisis of historic proportions.” (Gov. Code
§ 65589.5, subd. (a)(2).)1
2. To address this crisis, the State’s Housing Element Law (Gov. Code §§ 65580 et seq.) required
Bay Area cities and counties to adopt the sixth revisions of their housing elements by January 31, 2023.
1 Subsequent references are to the Government Code unless otherwise specified.
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 2/3/2023 10:13 AM
Reviewed By: L. Quach-Marcellana
Case #23CV410817
Envelope: 11102865
23CV410817
Santa Clara – Civil
23CV410817
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VERIFIED PETITION FOR WRIT OF MANDATE
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3. The City of Cupertino did not meet this deadline.
4. On behalf of the public interest in alleviating the housing crisis, the California Housing Defense
Fund and Yes In My Back Yard petition the Court for a writ of mandate compelling the City to adopt a
revised housing element.
PARTIES
5. Petitioner California Housing Defense Fund (“CalHDF”) is a California nonprofit public benefit
corporation.
6. CalHDF’s mission is to promote housing growth and affordability in California through
education and legal advocacy. As part of this mission CalHDF monitors local government policies
related to the availability and growth of housing.
7. Petitioner Yes In My Back Yard is a California nonprofit public benefit corporation.
8. Yes In My Back Yard litigates for housing through its project YIMBY Law, whose mission is to
end the housing shortage and achieve affordable, sustainable, and equitable housing for all.
9. Respondent City of Cupertino (“the City”) is an incorporated city in Santa Clara County.
JURISDICTION AND VENUE
10. The Court has subject matter jurisdiction under Sections 65587 and 65751 of the Government
Code and Section 1085 of the Code of Civil Procedure.
11. The Court has personal jurisdiction over the City consistent with Section 410.10 of the Code of
Civil Procedure.
12. Venue is proper under Sections 394–395 of the Code of Civil Procedure.
STATUTORY BACKGROUND
13. California’s Housing Element Law (Gov. Code §§ 65580 et seq.) is the State’s main policy for
addressing the housing crisis.
14. A “housing element” is a mandatory element of a county’s or city’s general plan. (§ 65302, subd.
(c).)
15. “Notwithstanding subdivision (a)” of Section 65700, all the provisions of the Housing Element
Law apply to general-law and charter cities alike. (§ 65700, subd. (b).)
//
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VERIFIED PETITION FOR WRIT OF MANDATE
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16. The Department of Housing and Community Development (“HCD”) is the State agency that
administers the Housing Element Law. (See Health & Saf. Code §§ 50400, 50459.)
17. The driving mechanism of the Housing Element Law is known as the “regional housing need
allocation” or “RHNA.” (Gov. Code §§ 65584.03, subd. (d); 65584.04, subd. (g)(2); 65584.05, subd.
(e)(1); 65584.06, subd. (f); 65584.07, subd. (b)(1); 65584.08, subd. (a)(4)–(5); 65584.09, subd. (a).)
18. Housing elements are updated on a cyclical basis. (See § 65588.)
19. Bay Area governments are now entering their sixth cycle of housing-element revisions.
20. Each cycle, HCD “determine[s] the existing and projected need for housing for each region” in
the State. (§§ 65584, subd. (a)(1); 65584.01.)
21. HCD allocates this RHNA to the regional council of governments, as applicable. (See §§ 65584–
65584.02.)
22. The regional council of governments then distributes its RHNA among its local governments.
(See §§ 65584.04–.05.)
23. HCD distributes the RHNA among local governments where no council exists. (§ 65584.06.)
24. With its share of the RHNA assigned, a locality must revise its housing element with a plan to
“make adequate provision for the [housing] needs of all economic segments of the community.”
(§ 65583.)
25. A housing element must provide “[a]n inventory of land” with zoned capacity “to meet the
locality’s housing need for [each] designated income level” by the end of the cycle. (§§ 65583, subd.
(a)(3).)
26. The site inventory must meet detailed and justiciable statutory requirements. (See § 65583.2.)
27. Where existing zoned capacity is insufficient to meet the RHNA, the locality must rezone for
sufficient capacity within three years (if timely and adequately revised) or one year (if not). (§ 65583,
subd. (c)(1)(A).)
28. A housing element must, in its site inventory and otherwise, “affirmatively further fair housing.”
(§§ 65583, subds. (a)(3), (b), (c)(1), (c)(5), (c)(10)(A); 65583.2, subd. (c); see § 8899.50 [definition].)
//
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VERIFIED PETITION FOR WRIT OF MANDATE
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29. A housing element must also “remove governmental . . . constraints to the maintenance,
improvement, and development of housing . . . for all income levels” where “appropriate and legally
possible.” (§ 65583, subd. (c)(3).)
30. A revision to a housing element must be prepared long before its adoption.
31. Housing Element Law spells out detailed requirements for public and administrative review.
32. “[T]he first draft revision of a housing element” must be made “available for public comment for
at least 30 days.” (§ 65585, subd. (b)(1).)
33. “[I]f any comments are received, the local government shall take at least 10 business days after
the . . . public comment period to consider and incorporate public comments into the draft.” (Ibid.)
34. “At least 90 days prior to adoption of a revision of its housing element,” the locality must submit
the draft to HCD for administrative review. (Ibid.)
35. HCD then makes “written findings” as to whether the draft “substantially complies” with the
Housing Element Law. (Id., subd. (d).)
36. Only after HCD has had time to review a draft may the locality adopt it.
37. If HCD finds that a draft “does not substantially comply,” the locality can either “[c]hange” its
draft to comply or “[a]dopt” with “written findings” rebutting HCD’s findings. (Id., subd. (f).)
38. Housing Element Law specifies consequences for failure to substantially comply.
39. A locality without a “revised housing element . . . in substantial compliance” is prohibited from
using its general plan and zoning standards to “disapprove” or “render[] . . . infeasible” any housing
development project meeting certain affordability requirements. (§ 65589.5, subds. (d)(5), (h)(3).)
40. As described above, a locality that fails to obtain HCD’s finding of substantial compliance
within 120 days of the statutory deadline must complete all required rezoning within one rather than
three years. (§ 65583, subd. (c)(1)(A); see above ¶ 27.)
41. “[A]ny interested party” may petition for a writ of mandate compelling “compliance with the
provisions” of the Housing Element Law. (§ 65587, subd. (b); see also § 65751.)
42. “[I]f the court” in such a proceeding enters “final judgment in favor of the . . . petitioner,” then
the locality must “bring its . . . [housing] element . . . into compliance . . . within 120 days.” (§ 65754.)
//
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VERIFIED PETITION FOR WRIT OF MANDATE
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43. “The court shall include” in such a judgment “one or more” additional specified provisions,
including suspension of nonresidential building permits and mandatory approval of residential building
permits, “until the [locality] has substantially complied.” (§ 65755, subds. (a)(1), (a)(4).)
44. “[T]he court may, upon a showing of probable success on the merits, grant the relief provided in
Section 65755 as temporary relief.” (§ 65757.)
45. “Notwithstanding . . . Section 65585,” a locality subject to a writ of mandate must submit a draft
revision of its housing element to HCD “at least 45 days prior to . . . adoption.” (Id., subd. (a).)
46. The locality must then conform its zoning ordinance within 120 days of adoption. (Id., subd. (b).)
47. “[A]ny action necessary” to comply with the writ is statutorily exempt from the California
Environmental Quality Act. (§ 65759, subd. (a); see also Pub. Res. Code §§ 21000 et seq.)
STATEMENT OF FACTS
48. Bay Area governments, including the City, were due to adopt the sixth revision of their housing
elements on January 31, 2023. (See HCD, Housing Element Update Schedule, https://www.hcd.ca.gov/
community-development/housing-element/docs/6th-web-he-duedate.pdf, p.5.)
49. “At least 90 days prior” to this statutory deadline (Gov. Code § 65585, subd. (b); see above
¶¶ 31–36), the City had not submitted a draft revision of its housing element to HCD.
50. The City has not adopted a sixth revision of its housing element.
51. Together with another housing organization, Petitioners contacted the City about its failure and
inability to comply with Housing Element Law.
52. In their letter to the City, Petitioners offered to “forgo immediate litigation” against the City if
the City would acknowledge in writing that it would:
a. “not be in substantial compliance” by the statutory deadline;
b. “be prohibited from rejecting any [affordable] housing development project based on
subdivision (d)(1) or (d)(5) of the Housing Accountability Act (HAA), Government Code
Section 65589.5,” from February 1, 2023, until such time as the City adopts a
substantially compliant housing element; and
//
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VERIFIED PETITION FOR WRIT OF MANDATE
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c. “be estopped” from invoking those subdivisions in any litigation arising from “any such
project that is the subject of an application or preliminary application submitted” during
that same period of time.
53. This letter was sent by email on December 16, 2022, to the City’s manager, community
development director, attorney, and council.
54. The City’s attorney responded and engaged Petitioners’ counsel in settlement discussions, but
the parties did not reach an agreement.
BENEFICIAL INTEREST
55. “The availability of housing is of vital statewide importance . . . .” (§ 65580, subd. (a).)
56. The Legislature has declared that the City has a “responsibility” to “make adequate provision for
the housing needs of all economic segments of the community.” (Id., subd. (d).)
57. Legalizing “the development of housing” is “essential” to achieving this goal. (Id., subd. (f).)
58. The Legislature intends that housing elements “move toward” this goal. (§ 65581, subd. (b).)
59. The writ of mandate is sought in this action to enforce the City’s public duty.
FIRST CAUSE OF ACTION
Writ of Mandate to Compel Compliance with Housing Element Law
(Gov. Code §§ 65587, 65751; Code Civ. Proc. § 1085)
60. Petitioners incorporate and reallege all of the foregoing paragraphs.
61. Section 65587 of the Government Code, subdivision (b), provides that “any interested party”
may bring an action “to review the [City’s] conformity with the [Housing Element Law].”
62. Petitioners are “interested part[ies]” under the Housing Element Law. (Ibid.)
63. Section 65587, together with Section 65751, provides that such an action “shall be brought
pursuant to Section 1085 of the Code of Civil Procedure.” (Ibid.)
64. Because the City has not adopted a sixth revision of its housing element, and its statutory
deadline has passed, the City is out of compliance with the Housing Element Law.
65. Petitioners have no available administrative remedies.
66. Petitioners have no plain, speedy, or adequate remedy in the ordinary course of law, other than
those sought herein.
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VERIFIED PETITION FOR WRIT OF MANDATE
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67. Petitioners are thus entitled to a writ of mandate.
DEMAND FOR JUDGMENT
WHEREFORE, Petitioners demand judgment against Respondent as follows:
1. A writ of mandate directing the City to adopt a sixth revised housing element according to the
schedule in Section 65754.
2. An injunction or order providing relief under Section 65755.
3. A declaration that:
a. the City is out of compliance with the Housing Element Law from February 1, 2023, until
the City lawfully adopts a sixth revision of its housing element that substantially
complies with the Housing Element Law;
b. the City must rezone as necessary to execute such sixth revision of its housing element by
the deadlines set forth in Articles 10.6 and 14 of Chapter 3 of Division 1 of Title 7 of the
Government Code;
c. the City may not rely on paragraphs (1) or (5) of subdivision (d) of Section 65589.5 of
the Government Code, also known as the Housing Accountability Act or “HAA,” to
disapprove a housing development project—or condition approval in a manner that
renders such project infeasible—so long as such project meets the affordability
requirements described in paragraph (3) of subdivision (h) of the HAA;
4. Costs of suit;
5. Attorneys’ fees under Code Civ. Proc. § 1021.5 and as otherwise allowed by law; and
6. Such further relief as the Court deems just and proper.
Dated: February 2, 2023. CALIFORNIA HOUSING
DEFENSE FUND
___________________________
By: Dylan Casey
Attorney for Petitioner California
Housing Defense Fund
YIMBY LAW
___________________________
By: Keith E. Diggs
Attorney for Petitioner Yes In My
Back Yard
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VERIFIED PETITION FOR WRIT OF MANDATE
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VERIFICATION
I, Dylan S. Casey, declare:
1. I am an employee of and hold the position of Executive Director at Petitioner California Housing
Defense Fund, and am familiar with the matters discussed in the foregoing Petition.
2. I have read the Petition and know the contents thereof. The statements of fact therein are true
and correct of my own knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on February 2, 2023 at Alameda, California.
_______________________________
Dylan S. Casey
1 VERIFICATION
2 I, Sonja K . Trauss, declare:
3 1. I am the Executive Director of Yes In My Back Yard, the Petitioner in this action.
4 2. I have read the foregoing Petition, and know the stated facts to be true of my own knowledge.
5 I declare under penalty of perjury that the foregoing is true and correct.
6 Executed on February 2, 2023 at Oakland, California .
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. ~_l---__ __
By: Sonja K. Trauss
Executive Director, Yes In My Back Yard
-9-
VERIFIED PETITION FOR WRIT OF MANDATE
From:Peggy Griffin
To:City Council
Cc:City Clerk
Subject:2023-03-07 City Council Mtg - Oral Communications-Kylie Clark is censured in Los Gatos
Date:Friday, March 3, 2023 11:45:11 PM
Attachments:2023-02-24 Los Gatos grapples with _attack on whiteness_ controversy-Kylie Clark.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Please include this email and the attached PDF as part of the 3-7-2023 City Council Meeting Written
Communications for ORAL COMMUNICATIONS.
Dear City Council,
I would like to bring to your attention that Kylie Clark, a Los Gatos Planning Commissioner was
recently censored by the Los Gatos Town Council for racist language. Please note:
This was done after an investigation and proof was collected and reviewed.
This Kylie Clark was involved with West Valley Community Services and our Housing Element!
Did she also send HCD derogatory emails regarding Cupertino while getting paid to help
Cupertino with their Housing Element?
https://www.sfgate.com/politics/article/los-gatos-grapples-with-attack-on-whiteness-17796970.php
Sincerely,
Peggy Griffin
From:Peggy Griffin
To:City Clerk
Cc:City Council
Subject:3-7-2023 City Council Mtg-Agenda Item15
Date:Friday, March 3, 2023 6:34:04 PM
Attachments:Chamber Summary.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
Dear City Clerk,
Please also include the attached PDF as part of the 3-7-2023 City Council Written Communications
for Item 15. We are forced to speak on this during Oral Communications yet if we’re lucky Council
might hear it under Agenda Item 15. So, I’d like it listed under both items.
Thank you,
Peggy Griffin
City of Cupertino and
Cupertino Chamber of
Commerce:
Recent City Practices
Overview
•501(c)(6) for the benefit of their members, not the public in general
•City has over 2,400 licensed businesses, Chamber members represent a smallfraction and include Apple, Recology, Rotary, Sand Hill Property, and others
•Lobbies City Council on behalf of their members
•Has Contributed hundreds of thousands of $$$ to Campaign for Council Memberslargelywith Developer Money
•City Staff has given away decades of Free Facility Use
•City Staff has given away decades of Free Funding with no Contracts
•4 seats on Former Economic Development Committee with no other Business Community Members granted seats
•Liability Waivers for Chamber to use facility signed off on by the former Economic Development Manager (not the Chamber using the facility)
•Allowing candidates to campaign at festivals against City policy & when City waived fees
•City gave $65k to Chamber to build themselves a website
501(c)(6): Non-profit Membership
Organization
•501(c)(3) Serves the Public
•501(c)(6) Serves their Members
•Who are some of their biggest Members?
•Apple (small business?)
•Sand Hill Property Company –Vallco , Main Street
•Recology –City Contracts with
•De Anza College
•Rotary –City has waived fees for facility use
•San Jose Water –City Contracts with
•The City of Cupertino has over 2,400 licensed businesses, more than 2,000 are not members of the Chamber
Lobbying and Campaigning
•Chamber writes Council on bills to take a position on
•Chamber has endorsed candidates
•Chamber has utilized a Political Action Committee to contribute to
campaigns, in 2016 “94% of their PAC funding came from Sand Hill
Property Company” –San Jose Spotlight
•Chamber contributed $120,000 to support Hung Wei’s campaign in
2018.
•Chamber has accepted PAC contributions from San Jose Water, which
has a contract with the City
City Gives Chamber Decades of Free Facility
Use
•City has inequitably given free use of Memorial Park with staff and
sheriffs for various of their fundraising festivals such as Holi and
Diwali at approximately $13,000 each
•City has inequitably given free use of Community Hall with staff and
video support. Former Economic Development Manager would sign
the Liability Waivers off for the Chamber.
City Pays Chamber on Invoices with no
Contract
•City pays Chamber $16,000/year with no contract and just a guess for
what the money has been for
•City paid the Chamber $65,000 for them to make a website.The
Chamber had the website logo Trademarked by JR Fruen and
registered to them.
Former Economic Development Committee
•Previous seats held by
•4 Chamber of Commerce Members
•4 City Staff Members
•2 City Council Members
•1 Planning Commissioner
•Chamber and Staff outnumbered City Council
•Only Chamber business members were on the Committee
•There are about 2,000 non-Chamber businesses
Issues
•Chamber members have enjoyed hundreds of thousands of dollars of City funds and benefits for decades
•City Staff has paid on invoices from the Chamber with no contracts
•Staff decides to waive festival fees for Chamber and others with no Councilinvolvement,financial cap, or report on equity. Chamber festivals are fundraisers, Diwali, for example, nets over $70k, the City waives the fees.
•City Staff had been signing off on the Liability Waiver for Chamber to use Community Hall
•Chamber is a membership organization with limited reach to the widerbusinesscommunity
•Chamber supports their members who include companies the City contracts with (water, garbage), developers (Sand Hill, Tersini ), and very large businesses (Apple)
•When the City Staff gifts the Chamber, they are funding them to lobby the City Council, and influence City decisions for the benefit of their members