Can a city be held liable for its bad boy surfers?

Trial began Monday in a beach access lawsuit accusing Palos Verdes Estates of violating the California Coastal Act by failing to stop harassment of outsiders who came to surf at its beaches. The outcome could expand liability for municipalities for conduct within their jurisdiction.

The plaintiffs - two surfers and a non-profit organization - will attempt to show that officials and residents of the upscale community conspired to keep visitors away from Lunada Bay. Their case went up and down the court system before landing back in Los Angeles County Superior Court.

Their attorney, Kurt A. Franklin, expects to call about 20 alleged victims of a local surfers' gang, and a variety of experts to support their claim that the gang's unpermitted construction of a stone and wood "fort" as well as their conduct amounted to physical and non-physical development in violation of the Coastal Act. They argue that the city was complicit in these actions. Franklin is a director with Fennemore Craig PC.

"The non-physical development is the de facto privatization ... of the quasi-exclusive use of a particular area, whether it's in the ocean or on land. Whatever the means to do that - harassment - that's what needs to be permitted," Franklin told Judge Lawrence P. Riff during opening statements of the bench trial.

"The quasi-exclusive use of the area in terms of harassment seems unlikely, I would agree, that if there's an application for harassment, that it would be granted. But that's just the means to take over an area. And that's what happened at Lunada Bay on city property. And the city was aware of this development," Franklin continued. He plans to call a historian who specializes in the history of surfing and its culture, an economist who develops coastal programs for municipalities, and a specialist to speak on the impact of gang-like activity on communities.

Best Best & Krieger LLP is representing Palos Verdes Estates at trial. BBK partner Christopher M. Pisano declined to comment when approached in the hallway.

Franklin sued the city on behalf of two surfers who said that officials looked the other way as a group of local surfers known as the Lunada Bay Boys attacked visitors and vandalized their vehicles to keep the beach and its prized waves for themselves. That conduct goes back decades -- Lunada Bay is famous for its surf localism. Cory Spencer et al. v. Lunada Bay Boys et al., BC629596, (L.A. Super. Ct., filed Aug. 4, 2016).

One of the plaintiffs, El Segundo Police Officer Cory Spencer, said he paid a security guard $100 to watch his car while he surfed. In the water, one of the Bay Boys intentionally ran him over, cutting his hand with a surfboard fin, he said.

Judge Amy D. Hogue dismissed the case against the city in 2020, finding that it could not be held liable for the presence of the fort under the Coastal Act if there was no evidence that the city built or consented to its construction.

In February 2023, a panel headed by Presiding Justice Laurence D. Rubin of the 2nd District Court of Appeal, Division 5, reversed Hogue's ruling, holding that the city could be held responsible for the unpermitted structure. More significantly, it held that the totality of the Bay Boys' conduct constituted a "development" under the Coastal Act. Spencer v. City of Palos Verdes Estates, 2023 DJDAR 1626 (2nd Dist., op. filed Feb. 27, 2023).

Palos Verdes Estates disagreed.

"If public entities can now be found liable for violating the Coastal Act based upon the conduct of private citizens on public property, they will be exposed to the potentially significant civil and daily fines imposed by the Coastal Act. This can amount to as much as $30,000 per violation, and $15,000 per day for each violation, both of which are payable to the state," read the petition to the state Supreme Court signed in April 2023 by Edwin J. Richards, Antoinette P. Hewitt and Kevin J. Krochow of Kutak Rock LLP. The Supreme Court denied the petition.

Opening statements continue on Tuesday.