1. Responding to Paragraph 1 of the Petition, Respondent lacks information or belief

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1 LEON J. PAGE, COUNTY COUNSEL (SEN ) and REBECCA S. LEEDS, SENIOR DEPUTY (SEN 0) W. Santa Ana Blvd., Ste. 0 Santa Ana, California 01 Telephone: (1) -0 Facsimile: ^1)- rebecca. leeds@coco.ocgov.com Attorneys for Respondent, COUNTY OF ORANGE Exempt From Filing Fees Pursuant to Gov*t Code SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER VOICE OF ORANGE COUNTY.ORG, COUNTY OF ORANGE, Petitioner/Plaintiff, Respondent/Defendant. ) Case No CU-WM-CJC ) Assigned for All Purposes to: ) Honorable Walter P. Schwarm; C- ) ) ANSWER OF RESPONDENT, COUNTY ) OF ORANGE, TO VERIFIED PETITION ) FOR WRIT OF MANDATE AND ) DECLARATORY RELIEF ) [Deemed Verified Pursuant to Code Civ. ) Proc.,, subd. (a)] ) ACTION FILED: 0/1/1 J TRIAL DATE: TBD Respondent, COUNTY OF ORANGE ("Respondent"), hereby answers the Verified Petition for Writ of Mandate and Declaratory Relief ("Petition") filed by Petitioner, VOICE OF ORANGE COUNTY.ORG ("Petitioner"), as follows: ANSWER TO "THE PARTIES" SECTION 1. Responding to Paragraph 1 of the Petition, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Government Code section (a) speaks for itself. Respondent admits that it is subject to the CPRA and that it has offices at Civic Center Plaza, Third Floor, Santa Ana, California 01. Except as expressly admitted or submitted. Respondent denies the allegations. -1-

2 si 1 Vi * Z D OW, a" ig 1 uo UJ> 1:1 1 ^ u*-' ^ 1 u. o ANSWER TO "JURISDICTION AND VENUE" SECTION. Responding to Paragraph of the Petition, Respondent submits the Code of Civil Procedure and Government Code sections cited therein speak for themselves. Respondent further submits that the Paragraph contains argument or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Government Code section speaks for itself. Respondent admits that the records are located within the County of Orange. Except as expressly admitted or submitted. Respondent asserts that the remaining allegations in the Paragraph are arguments or conclusions of law that require no answer but, to the extent the Paragraph contains allegations of fact. Respondent lacks information and belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them. ANSWER TO "FACTS SUPPORTING THE CAUSE OF ACTION" SECTION. Responding to Paragraph of the Petition, Respondent admits that, on Friday, April, 1, a Christian religious holiday, Todd Spitzer, then-chairman of the Orange County Board of Supervisors, was approached by a stranger, later identified as Jeovany Castellano, at a Wahoo's Fish Taco restaurant in Foothill Ranch. Respondent alleges that Supervisor Spitzer had that morning participated in a religious celebration in his district, was eating at a table in the restaurant alone, and that Castellano, a person unknown to Supervisor Spitzer, approached Supervisor Spitzer's table, expressed a desire to speak with Supervisor Spitzer about Jesus, and then attempted to squeeze between tables to sit down next to Supervisor Spitzer. Respondent alleges that Castellano refused to leave him alone despite Supervisor Spitzer's request that he do so, and refused to move away from his table. Respondent alleges that Castellano, who was wearing loose fitting clothing and whose shirt was untucked, covering his waistline (and possibly weapons), became fixated on Supervisor Spitzer. Respondent alleges that Castellano repeatedly returned his gaze to a serrated, metal, black-handled steak knife that was on the table where Supervisor Spitzer was eating. Respondent further alleges that other --

3 Ei 1 C/ z D og 1 i 1 uo ua>" 1 U. ^ ^ M 1 U- O restaurant patrons near Castellano and Supervisor Spitzer began to quickly exit the restaurant. Respondent admits that Supervisor Spitzer, concerned for his safety and the safety of others, called, identified himself as a county supervisor, and requested assistance. Respondent further submits that Exhibit A speaks for itself. Respondent lacks information and belief sufficient to enable it to admit or deny the remaining allegations in the Paragraph, particularly as to what was "reported," and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent admits that Supervisor Spitzer had a concealed carry weapon ("CC W") permit. Respondent alleges that Supervisor Spitzer (1) graduated from the Los Angeles Police Department Police (LAPD) Academy as a Level 1 Reserve Officer, Class of October, 0; () completed a full peace officer, POST approved. Level 1 academy; () completed POST training on the use of force and use of weapons, including firearms and arrest and control techniques; () was his Academy Class Leader, chosen by his peers and instructors; () graduated number in his Academy Class; () was issued a CCW permit upon graduation by the Los Angeles Chief of Police during probationary period of patrol assignment status for off duty carry purposes; () was assigned to the Hollenbeck Division in East Los Angeles from 1-00; () chosen by the LAPD Chief of Police as the Reserve Officer of the Division; () was chosen by the LAPD Chief of Police as the Reserve Office of the Bureau; and, () voluntarily separated from the LAPD after years of volunteer service. Respondent further alleges that, during that ten-year period assigned primarily to patrol. Supervisor Spitzer made, or assisted in making, hundreds of arrests and detentions, that he carried a concealed weapon for the entire ten years assigned to LAPD initially in accordance with his CCW permit, and later, in accordance with his vested right to do so by statute. Respondent further alleges that Supervisor Spitzer has never been found to have misused a firearm or inappropriately used force. Respondent admits that, because of the Castellano's bizarre, harassing behavior. Supervisor Spitzer, based on his training and experience, left the restaurant to retrieve from his personal vehicle a pair of handcuffs and a belt pouch, which contained a firearm. Respondent zr:

4 1 u further admits that Supervisor Spitzer returned to the restaurant. Respondent alleges that Castellano saw Supervisor Spitzer re-enter the restaurant, and that, upon seeing Supervisor Spitzer re-enter the restaurant, Castellano jumped up from a booth (where Castellano had been isolated by a manager after Supervisor Spitzer called for assistance, a booth located on the side of the restaurant opposite to where Supervisor Spitzer had been eating) and approached Supervisor Spitzer directly. Respondent alleges that Supervisor Spitzer put his hand up to stop Castellano's approach, informed Castellano that he (Supervisor Spitzer) was concerned for his personal safety, and instructed Castellano to not come any closer. Respondent alleges that Supervisor Spitzer then asked Castellano if he could search him for weapons, and that Castellano consented to the search stating, "If that's what it takes to preach the word of God." Respondent alleges that Supervisor Spitzer never brandished, referenced, or used his firearm in any manner whatsoever. Respondent admits that Supervisor Spitzer then temporarily detained Castellano, and called a second time. Respondent alleges that, during his second call. Supervisor Spitzer, in accordance with his training and experience, informed law enforcement that he was now armed so as to avoid any surprise to the responding deputy sheriff personnel. Respondent alleges that Supervisor Spitzer then sought and obtained Castellano's consent to place Castellano in handcuffs, pending the arrival of law enforcement personnel. Respondent further alleges that Castellano informed deputy sheriff personnel that he had consented to the handcuffing. Respondent further alleges that, during an in-car recorded interview with a deputy sheriff (Stow. 1.back.mp), when asked what happened, Castellano explained that he was at Wahoo's to preach the gospel, and when asked why he focused in on Supervisor Spitzer, Castellano explained (1:0 to 1:0): "The reason I'm here, I've been missing a lot of opportunities... I had an awesome chance at the freeway... I missed one earlier this morning...and when you don't have a second chance and you walk away... " Respondent alleges that, to a law enforcement investigator, Castellano subsequently described his behavior that day as "losing sight of the big picture. " Respondent further alleges that Orange County Sheriff-Coroner Sandra Hutchens --

5 I 1 io 1 reviewed the April, 1 incident and publicly acknowledged that Supervisor Spitzer's CCW permit allowed him to lawfully bring his firearm into a restaurant because the Orange County Sheriff-Coroner Department had determined that he could do so safely. Respondent alleges that Sheriff Hutchens publicly stated that Supervisor Spitzer did not do anything that anyone else could not have done, noting that Castellano had allowed Supervisor Spitzer to handcuff him. Respondent alleges that Sheriff-Coroner Hutchens stated, in reference to Supervisor Spitzer, "He's a citizen. If he perceives a threat, he can certainly take action on that." Respondent lacks information or belief sufficient to enable it to admit or deny the remaining allegations in the Paragraph, particularly as to what was "reported," and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent alleges that, on Friday, September, 1, the Orange County Register {"Register") published a news article by reporter Meghann Cuniff that mischaracterized and omitted important material facts concerning S ID > *T* Supervisor Spitzer's temporary detention of Castellano on April,1. Respondent alleges that, following the publication of this article, Norberto Santana, publisher of the petitioner Voice of OC.org, contacted Supervisor Spitzer and interviewed him about the April, 1 event. Respondent alleges that Supervisor Spitzer and Mr. Santana in fact spoke on several occasions about the April, 1 incident. Respondent alleges that, during one of these conversations, either the first or second such conversation, Mr. Santana insisted that Supervisor Spitzer seek a correction to the September, 1 Register article to clarify the particular sequence of events that had occurred after Supervisor Spitzer left the restaurant to retrieve his handcuffs and firearm from his personal vehicle. Respondent alleges that, during this particular conversation, Mr. Santana informed Supervisor Spitzer that he cared about Supervisor Spitzer, that he cared about his career, and expressed concern that Ms. Cuniff s mischaracterization of the April, 1 incident could damage Supervisor Spitzer's professional and public service career. Respondent alleges that Mr. Santana further informed Supervisor Spitzer that he (Mr. Santana) did not think highly of Ms. Cuniff s professional work as a journalist. Respondent =z

6 S 1 o 1 1 uo SS 1C!: 1 oo ^ 1 u. O alleges that Mr. Santana urged Supervisor Spitzer to immediately contact the Register to request a correction to the September, 1 article written by Ms. Cuniff in light of what Mr. Santana represented was Ms. Cuniff s uncertain future at the Register. Respondent alleges that Mr. Santana insisted that Supervisor Spitzer obtain a correction on one key point in particular ^that Castellano had come back at Supervisor Spitzer when Supervisor Spitzer had re-entered the Wahoo's Fish Taco restaurant. Respondent alleges that Supervisor Spitzer informed Mr. Santana that he was not interested in seeking a correction of the September, 1 Register article. Respondent alleges that Supervisor Spitzer informed Mr. Santana that he (Supervisor Spitzer) had already met with Ms. Cuniff at the Wahoo's restaurant, and had already walked Ms. Cuniff through each step of his encounter with Castellano, and expressed his belief that Ms. Cuniff s omission of the material fact that Castellano had come back at Supervisor Spitzer upon his return to the restaurant had been a deliberate effort, on the part of Ms. Cuniff, to slant and misrepresent what Supervisor Spitzer had already told her. Respondent alleges that Ms. Santana informed Supervisor Spitzer that he (Mr. Santana) would have never omitted such an important fact from a story and that, in fact, the omission of this fact constituted "irresponsible journalism." Respondent further alleges that Mr. Santana informed Supervisor Spitzer that he (Supervisor Spitzer) did not have any choice in the matter and had to insist that the Register correct its article. Respondent alleges that Mr. Santana informed Supervisor Spitzer that if Ms. Cuniff refused to make the correction, that Supervisor Spitzer would then need to elevate the request to her editor, Rob Curley. Respondent alleges that Mr. Santana coached Supervisor Spitzer as to the direction he should take to obtain a correction from the Register. Respondent alleges that, in accordance with Mr. Santana's advice. Supervisor Spitzer then wrote an to Ms. Cuniff, dated September, 1, requesting that the Register correct the omission immediately and that his specific complaints about Cuniff s inability "to be accurate" be additionally submitted to the Register's Ombudsman. Respondent further alleges that, on or about October 1, 1, Supervisor Spitzer met with Register Editor Rob Curley and Associate Editor Donna Wares and ==

7 ^ 1 z D uo requested a correction of the September, 1 article to include the important detail that Ms. Cuniff had omitted ^that Castellano had approached Supervisor Spitzer when he reentered the restaurant. Respondent alleges that he requested the meeting with Cuniff s superiors only because she was non-responsive to the September, 1 demanding a correction. Respondent alleges that, several weeks later, the Register updated the September, 1, article to include a clarifying paragraph in a manner consistent with what Mr. Santana had urged. Respondent alleges that, on November, 1, at : a.m.. Supervisor Spitzer sent a text message to Mr. Santana's cell phone that stated: I need your guidance. Register updated story to include castellano coming back at me. Is that good enough.? Respondent alleges that, five minutes later, at : a.m.. Voice of OC.org publisher Norberto Santana replied to Supervisor Spitzer's text message, writing: Lemme check...on the road...yet that was the main key missing fact...u should be good...call u at 1:0 p.m. Respondent alleges that Supervisor Spitzer and Mr. Santana later discussed the Register's correction of the article over the telephone. Respondent alleges that Mr. Santana expressed to Supervisor Spitzer his opinion that how the Register had handled the correction was highly unusual and that the Register should have included an editor's note ("footer") at the bottom of the article to alert the reader that the article had been updated. Respondent alleges that Mr. Santana insisted that Supervisor Spitzer demand that a footer be added to the article, and further, that Mr. Santana insisted that Supervisor Spitzer request that a correction also be printed in the print version of the Register newspaper. Respondent alleges that Supervisor Spitzer informed Mr. Santana that he (Supervisor Spitzer) was satisfied that the Register had reviewed the incident and corrected the story because it was originally incomplete and inaccurate. Respondent alleges that Supervisor Spitzer informed Mr. Santana that he (Supervisor Spitzer) considered that matter resolved - despite the fact that Mr. Santana --

8 i 1 z D uo continued to assert that the way the correction had been inserted into the previously published article, without a specific reference and acknowledgement to the correction by the Register, was not a "true" correction (i.e., consistent with the professional standards of journalism) because it failed to inform a subsequent reader that the original story had been updated or modified. Respondent submits that submits that Exhibit B speaks for itself. Respondent lacks information or belief sufficient to enable it to admit or deny the remaining allegations in the Paragraph and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Exhibit C speaks for itself. Respondent admits the remaining allegations in the Paragraph.. Responding to Paragraph of the Petition, Respondent submits that Exhibit D speaks for itself. Respondent admits the remaining allegations in the Paragraph.. Responding to Paragraph of the Petition, Respondent submits that Exhibit E speaks for itself. Respondent admits the remaining allegations in the Paragraph.. Responding to Paragraph of the Petition, Respondent submits that Exhibit F speaks for itself. Respondent admits the remaining allegations in the Paragraph. their entirety. 1. Responding to Paragraph 1 of the Petition, Respondent denies the allegations in ANSWER TO **CAUSE OF ACTION FOR VIOLATION OF THE CPRA" SECTION 1. Responding to Paragraph 1 of the Petition, Respondent submits that Paragraph 1 does not contain any factual allegations. Respondent incorporates by reference its response to paragraphs 1 through 1, inclusive, as if set forth fully herein. 1. Responding to Paragraph 1 of the Petition, Respondent submits that the CPRA speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them. 1. Responding to Paragraph 1 of the Petition, Respondent submits that Government Code section (b) speaks for itself. Respondent further submits that the Paragraph contains ==

9 ^ 1 ow -- g 1 Ofe uo m >- 1 Iri 1 1 arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them. 1. Responding to Paragraph 1 of the Petition, Respondent submits that Government Code section (e) speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent admits the allegations.. Responding to Paragraph of the Petition, Respondent submits that Government Code section (a) speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them. their entirety.. Responding to Paragraph of the Petition, Respondent denies the allegations in. Responding to Paragraph of the Petition, Respondent submits that article 1, section 1, of the California Constitution speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Government Code section speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Government Code section speaks for itself. Respondent further submits that the Paragraph contains ==

10 I 1 io arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Government Code section speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that Code of Civil Procedure section 0 speaks for itself. Respondent further submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding the Paragraph of the Petition, Respondent submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent denies the allegations.. Responding to Paragraph of the Petition, Respondent submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent denies the allegations.. Responding to Paragraph of the Petition, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent denies the allegations.. Responding to Paragraph of the Petition, Respondent submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent denies the allegations. 0. Responding to Paragraph 0 of the Petition, Respondent denies the allegations in JO-

11 S 1 z O w i o oo their entirety. 1. Responding to Paragraph 1 of the Petition, Respondent lacks information or belief sufficient to enable it to admit or deny the allegations and, on that basis, denies them.. Responding to Paragraph of the Petition, Respondent submits that the Paragraph contains arguments or conclusions of law that require no answer but, to the extent that it contains allegations of fact. Respondent denies the allegations. ANSWER TO THE PRAYER FOR RELIEF. Responding to Paragraphs 1 to of the prayer for relief. Respondent denies that Petitioner is entitled to any relief whatsoever. With respect to paragraph in the Prayer, and Petitioner's request for an order allowing Petitioner to recover attorneys' fees and costs. Respondent alleges that Petitioner is utilizing this lawsuit not to obtain disclosures that will contribute significantly to the public's understanding of government activities - the facts concerning Supervisor Spitzer's temporary detention of Castellano are not in dispute - but rather to solicit financial contributions to Voice of OC.org, thereby demonstrating that an award of attorneys' fees in this litigation is neither necessary nor appropriate. FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE OF ACTION). As a first, separate affirmative defense to the Petition, and each purported cause of action contained therein. Respondent alleges that the Petition fails to state facts sufficient to constitute a cause of action against Respondent because the information at issue is exempt from disclosure under Government Code sections and/or, and any other applicable statutes or provisions of federal or state law whose protections, prohibitions and/or exemptions are incorporated into the California Public Records Act by Government Code section, including but not limited to the Califomia Constitution, article I, section 1; Civil Code section et seq; Evidence Code sections 0 et seq. and 0; and Code of Federal Regulations, section 1.00 et seq. SECOND AFFIRMATIVE DEFENSE (MOOTNESS) JJ-

12 S As a second, separate affirmative defense to the Petition, and to each purported cause of action therein, Respondent alleges that the claims asserted in such causes of action of the Petition are moot. THIRD AFFIRMATIVE DEFENSE (RIPENESS). As a third, separate affirmative defense to the Petition, and to each purported cause of action therein, Respondent alleges that the claims asserted in such causes of action of the Petition are not ripe for judicial review and must, therefore, be dismissed. FOURTH AFFIRMATIVE DEFENSE (UNKNOWN AFFIRMATIVE DEFENSES). As a fourth, separate affinnative defense to the Petition, and to each purported cause of action therein, Respondent has insufficient knowledge and information as to whether it has additional affirmative defenses thus reserves the right to raise additional affirmative defenses pending discovery at trial. WHEREFORE, Respondent prays for judgment as follows: 1. That Petitioner take nothing by its Petition;. That no peremptory writ be issued in this matter;. That Judgment be entered in favor of Respondent;. That Respondent be awarded its reasonable attorney's fees and costs of suit. DATED: April, 1 incurred in this action; and For such other relief as the court deems just and proper. Respectfully submitted, LEON J. PAGE, COUNTY COUNSEL and REBECCA S. LEEDS, SENIOR DEPUTY By: Leon J. Page, County Coun Attorneys for Respondent, COUNTY OF ORANGE

13 PROOF OF SERVICE I declare that I am a citizen of the United States employed in the County of Orange, over years old and that my business address is W. Santa Ana Blvd., Ste. 0, Santa Ana, California 01; and my address is marz.lair@coco.ocgov.com. I am not a party to the within action. 1 1 o UO On April,1,1 served the following document, ANSWER OF RESPONDENT, COUNTY OF ORANGE, TO VERIFIED PETITION FOR WRIT OF MANDATE AND DECLARATORY RELIEF on all other parties to this action in the following manner: [] (BY U.S. MAIL) By placing a true copy of said document in a sealed envelope, and placed such envelope(s) addressed as shown below for collection and mailing at Santa Ana, California, following our ordinary business practices. I am readily familiar with this office's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid; and [X] (BY ELECTRONIC SERVICE) Pursuant to California Rules of Court, rule.1(c)(), I caused an electronic version of the document to be sent to the person(s) listed below. [] (BY FACSIMILE) I caused such document to be telefaxed to the addressee(s) and number(s) shown below, wherein such telefax is transmitted that same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: April, 1 Marzette L. Lair NAMES AND ADDRESS TO WHOM SERVICE WAS MADE KELLY A. AVILES ESQ FOOTHILL BLVD STE -10 LA VERNE CA 0 PH FAX kaviles@opengovlaw.com Attorney for Petitioner, VOICE OF ORANGE COUNTY.ORG PROOF OF SERVICE