National City City Council
September 2, 2025

From: Alexander Gutterud
To: Public Comment; Clerk
Cc: Maria Severson; Michael Aguirre
Subject: Written Comment -City Council Meeting 2025-09-02 6 P.M.

Date: Tuesday, September 2, 2025 2:01:22 PM
Attachments: Declaration and Exhibits Combined.pdf
PRA Writ of Mandate - FINAL.pdf
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Greetings,
Please find attached Public Written Comment for September 2, 2025, City Council meeting for 6:00 pm. Thank you.

Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
General Comment
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1 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE
Michael J. Aguirre, Esq., SBN 060402
Maria C. Severson, Esq., SBN 173967
Alexander M. Gutterud, Esq., SBN 358345

AGUIRRE & SEVERSON, LLP
501 West Broadway, Suite 1050
San Diego, CA 92101
Telephone: (619) 876-5364
Facsimile: (619) 876-5368
Attorneys for Petitioner/Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

MICAELA POLANCO,
Petitioner/Plaintiff,
v.

CITY OF NATIONAL CITY, et al.,
Respondents /Defendants.

Case No. 25CU004193C
Assigned for All Purposes to
Honorable Mark T. Cumba, Dept. C-65
DECLARATION OF MICHAEL J. AGUIRRE
IN SUPPORT OF PETITIONER’S MOTION

TO ISSUE WRIT OF MANDAMUS

COMPELLING DISCLOSURE OF

IMPROPERLY WITHHELD PUBLIC

RECORDS UNDER THE CALIFORNIA
PUBLIC RECORDS ACT (CAL. GOV. CODE
§ 7920.000) AND ART. I, SEC. 3 OF THE

CALIFORNIA CONSTITUTION
Date: June 26, 2026
Time: 8:30 a.m.

Dept.: C-65
Complaint filed: January 24, 2025

IMAGED FILE
I, Michael J. Aguirre, declare:

1. I am an attorney duly licensed to practice law before all the courts of the state of California, and I am a partner with the law firm of Aguirre & Severson LLP, the attorneys of record for Petitioner/Plaintiff Micaela Polanco. Except where otherwise stated, I have personal knowledge of the matters stated herein and if sworn as a witness could and would testify competently thereto.
/ / /
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2 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE

2. In the course of my representation in this case, I and attorneys at Aguirre & Severson LLP assisted Petitioner Micaela Polanco with requesting documents from the City of National City pursuant to the Public Records Act of California and the California Constitution.

3. Respondent City of National City’s first production of records in response to a December 4, 2024 request did not occur until after Petitioner filed the underlying action.

Thereafter, on behalf of Petitioner, I asked Respondent’s counsel time and again to disclose the cell phone and calendar records, only to be met with noncommittal responses. On behalf of Petitioner, we engaged in expensive mediation with the Honorable Keri Katz (Retired); only when that failed did the civil discovery process begin.

4. When I attended the December 10, 2024 City Council meeting, I saw Petitioner and others in opposition attend the meeting. I heard the Mayor state multiple times the agendized project (what we refer to as the Nuisance Project because the Planning Commission found it to be a public nuisance for many reasons) was “dead” and taken off the agenda. This can be viewed on the City of National City’s website in its archived public meetings links.

5. I have reviewed the public records produced by Respondent in response to public records requests 24-679 and 24-688. The City of National City produced no records related to meetings or communications regarding the communications about the Nuisance Project’s failure to comply with CEQA sent by Planning Dept. staff to the Brikhos (project developers who are close to the Mayor and his assistant as demonstrated on social media posts of the Mayor, the Brikhos, the Mayor’s assistant, and even her family) and, inexplicably, to Mayor and his assistant.

My review also showed there were no writings, notes, emails, or text messages of any kind produced by the City relating to an October 23, 2024, meeting. This is despite a text message that shows “Team” consisting of private cell phone of the Mayor, his assistant, and the Brikhos and the City’s then Manager. A true and correct copy of the revealing text is shown here:
/ / /
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/ / /
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3 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE

6. Petitioner expected to receive substantially similar records for the same conversations from the City Manager’s phone, in addition to other records of communication therefrom. However, Respondent has claimed both the cell phone on which the City Manager’s related text messages are stored and the records within have vanished. The City has yet to provide an explanation for why Martinez’s cell phone records are missing, why it hasn’t attempted to locate Martinez’s former cell phone, or why no records had been disclosed after eight months. 1 2
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4 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE

7. As described further below, the following are attached as true and correct copies:

Ex. Description
1 2024-12-04 Public Records Request 24-679 Excerpts
2 2024-11-18 National City Planning Commission Staff Report 3 2014-2021 Facebook Posts of the Mayor, the Mayor's Assistant, and the Brikho Family
4 2024-12-02 Planning Commission Adopted Resolution Denying Nuisance Project 5 2024-12-10 Approved Meeting Minutes National City Special Council Meeting 6 2024-12-10 Joseph Brikho Email to Martin Reeder Nuisance Project is on Hold 7 2025-01-16 PRA Request 24-679 Clarification
8 2024-04-22 Brikho Email to the Mayor, the Mayor's Assistant, and the City Manager Regarding the Nuisance Project
9 2024-05-30 Email Forward from Brikhos to the Mayor's Assistant Regarding the Nuisance Project Incomplete Letter
10 2024-08-15 Email Forward from Brikhos to the Mayor's Assistant Regarding the Nuisance Project Incomplete Letter
11 2024-10-09 Brikho Email to the Mayor's Assistant Regarding the Need for Three Variances
12 2024-10-16 The Mayor's Assistant Text Correspondence with the Brikho family and Team
13 2025-05-14 Benjamin Martinez Deposition Excerpts
14 2025-06-18 Damon Dong Deposition Excerpts
15 2024-12-23 National City Website Calendar Holiday Furlough Closures 16 2025-05-28 Ronald Morrison Deposition Excerpts
17 2025-06-04 Ron Williams Deposition Excerpts
18 2025-05-13 Martin Reeder Deposition Excerpts
19 2025-06-25 Josie Flores-Clark Deposition Excerpts
20 2025-07-16 Shelley Chapel Deposition Excerpts
21 2025-02-13 Respondent's Counsel Letter to Petitioner's Counsel 1 2
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5 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE
22 2025-04-11 Respondent's Counsel Letter to Petitioner's Counsel 23 2025-04-23 Petitioner's Counsel Correspondence with Respondent's Counsel 24 2024 California Municipal Clerk's Handbook Excerpts
25 City of National City Affidavit of City Employees and Public Officials Regarding Search of Personal Devices and Accounts Pursuant to the California Public Records Act
26 Public Records Request # 24-688

8. In the course of my representation in this case, I requested documents from the City of National City pursuant to the Public Records Act of California. Exhibits 1, 6, 7, 8, 9, 10, 11, 12, 25 and 26 are documents produced by the City in response to the Public Records Act request.

9. Exhibit 2 is a PDF file containing the November 18, 2024, National City Planning Commission Staff Report. I obtained this PDF file from the City of National City’s published website at:
https://www.nationalcityca.gov/home/showpublisheddocument/33812/638672026996770000

10. Exhibit 3 is a PDF file containing Facebook posts between 2014 and 2021 where the Mayor, the Mayor’s Assistant, and the Brikho family are tagged in the photos. I took a screenshot of these Facebook posts and combined them into a PDF file.

11. Exhibit 4 is a PDF file containing the December 02, 2024, National City Planning Commission Resolution. I obtained this PDF file from the City of National City’s published website at:
https://www.nationalcityca.gov/home/showpublisheddocument/33812/638672026996770000.

12. Exhibit 5 is a PDF file containing the December 10, 2024, City of National City Special Council Meeting. I obtained this PDF file from the City of National City’s published website at:
https://www.nationalcityca.gov/home/showpublisheddocument/34063/638735731665670000.

13. Exhibit 13 contains excerpts from the deposition transcript of Benjamin Martinez, taken May 14, 2025. These deposition excerpts are from a deposition I took in this case. The 1 2
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6 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE
questions asked and the answers provided are accurately reflected in the transcript.

14. Exhibit 14 contains excerpts from the deposition transcript of Damon Dong, taken June 18, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

15. Exhibit 15 is a PDF file containing the December 23, 2024, City of National City, City Hall Holiday Furlough Calendar Entry. I obtained this PDF file from the City of National City’s published website at:
https://www.nationalcityca.gov/Home/Components/Calendar/Event/17199/907?npage=257&togg le=allpast&sortn=EDate&sortd=asc.

16. Exhibit 16 contains excerpts from the deposition transcript of Ronald Morrison, taken May 28, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

17. Exhibit 17 contains excerpts from the deposition transcript of Ron Williams, taken June 04, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

18. Exhibit 18 contains excerpts from the deposition transcript of Martin Reeder, taken May 13, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

19. Exhibit 19 contains excerpts from the deposition transcript of Josie Flores-Clark, taken June 25, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

20. Exhibit 20 contains excerpts from the deposition transcript of Shelley Chapel, taken June 25, 2025. These deposition excerpts are from a deposition I took in this case. The questions asked and the answers provided are accurately reflected in the transcript.

21. Exhibit 21 contains the February 13, 2025 letter our firm received from outside counsel for National City.

22. Exhibit 22 contains the April 11, 2025 letter our firm received from outside counsel for National City.
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7 DECL. OF MICHAEL J. AGUIRRE IN SUPPORT OF CASE NO. 25CU004193C

MOTION FOR WRIT OF MANDATE

23. Exhibit 23 contains email correspondence between Associate Attorney at our firm, Alexander M. Gutterud, and outside counsel for National City between April 14, 2025 and April 23, 2025.

24. Exhibit 24 contains excerpts from the 2024 California Municipal Clerk's Handbook. I obtained this PDF file from the California Municipal Clerk’s Association published website at:
https://cdn.ymaws.com/www.calclerks.org/resource/resmgr/events/book_club/2024.10_municpal _clerks_hand.pdf.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this 2nd day of September 2025, in San Diego, California. /s/Michael J. Aguirre
Michael J. Aguirre

AGUIRRE & SEVERSON, LLP
EXHIBIT 1
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National City, CA
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I}] Request 24-679 ,~,Closed
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Dates
Received
December 04, 2024 via web
Staff assigned
Departments
Planning
City Attorney's Office
City Manager's Office
Information Technology
Engineering
Point of contact
Ron Williams
Request
I am requesting the following:

All communications between Highland Avenue Property
investments, LLC, Josie Flores Clark, Ron Morrison, Edward (Eddy)Brinko, Robert Zakar, Joseph John Brikho, L. Thomas Morgan, Michael Kinoshita, Adeeb Asso Brikho, Martin
Reeder, David Welsch Narasimha Prasad, Zahira Chayeb,
John Boarman, Jlinscott, Law & Greenspan, Engineers, all National City Officials, all San Diego County officials and anyone representing the city of National City or San Diego County, Caltrans, Engineering Department, Fire Department, Sweetwater Authority, Police Department, Institute for
Public Strategies, San Diego County Air Pollution Control District (APCD) and California Air Resources Board.
[ Show less )
Timeline Documents
~- D ( ) I jn~t with access to this request EJ ocument s re easeuL FW_ Brikho Sweetwater Site Plan Update.pdf
Meeting Invite - Brikho's Project.pdf
Re_ #3948 Sweetwater Road Commercial - Updated
Report.pdf
2311 Sweetwater Rd. PN24-00008.doc
RE_ Sweetwater Road Commercial Traffic study .pdf
February 7, 2025, 10:53am by Staff
® Request published Anyone with access to this request
January 29, 2025. 3:49pm by Staff
Request closed~ ] Anyone with access to this request
Documents responding have been provided, this request is now closed.

January 29, 2025. 3:49pm by Staff
EXHIBIT 2

Item no. 4
November 18, 2024

COMMUNITY DEVELOPMENT DEPARTMENT - PLANNING DIVISION
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950

PLANNING COMMISSION STAFF REPORT
Title: PUBLIC HEARING – DETERMINATION THAT THE

PROJECT IS CATEGORICALLY EXEMPT FROM THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
UNDER CLASS 32 OF THE CEQA GUIDELINES SECTION
15332 (INFILL-DEVELOPMENT PROJECTS) AND

CONDITIONAL USE PERMIT FOR A PROPOSED

DEVELOPMENT COMPRISED OF A NEW SERVICE

STATION, CONVENIENCE STORE WITH REQUEST FOR
OFF-SALE ALCOHOL (ABC TYPE-21), DRIVE-THROUGH

CAR WASH, DRIVE-THROUGH EATING PLACE, AND

FIVE RESIDENTIAL UNITS WITH A ZONE VARIANCE

REQUEST RELATED TO MAXIMUM DRIVEWAY WIDTH,

MINIMIUM STREET WALL, AND THE LOCATION OF

PARKING SPACES, TO BE LOCATED ON VACANT

PROPERTIES ON THE NORTH SIDE OF SWEETWATER

ROAD BETWEEN OLIVE STREET AND ORANGE
STREET.

Case File No.: 2024-08 CUP ZV
Location: 2311 Sweetwater Road and 3320-3336 Orange Street Assessor’s Parcel Nos.: 563-252-12-00, 563-252-13-00, 563-252-14-00, and 563- 252-23-00
Staff report by: David Welch, Associate Planner
Applicant: Highland Avenue Property Investments, LLC
Zoning designation: Major Mixed-Use District (MXD-2)
Adjacent use and zoning:

North: Single-Family Attached Residential / County of San Diego East: Residential and Convenience Store across Orange St. / Small Lot Residential (RS-2), MXD-2, and County of San Diego
Planning Commission
Meeting of November 18, 2024

South: Caltrans Right-of-Way across Sweetwater Rd. / Open Space (OS), MXD-2
West: Single-Family Residential / MXD-2
Environmental review: Categorically exempt from environmental review pursuant to Class 32, Section 15332 (In-Fill Development Projects)
Staff recommendation: Approve
Planning Commission
Meeting of November 18, 2024

Staff Recommendation
Staff recommends approval of the proposed development requesting a new gasoline service station, convenience store with off-sale alcohol (ABC Type 21), drive-through car wash, drive-through eating place, and five residential units, subject to the recommended conditions in the attached resolution and a determination that the project is exempt from CEQA. The requested uses are conditionally-allowed within the Major Mixed-Use District (MXD-2) and the project is consistent with the General Plan and Land Use Code (LUC) with the approval of the requested Zone Variance (ZV).

Executive Summary
The applicant proposes to construct an 11,478 square-foot building that includes a convenience store, drive-through eating place, and five residential units in conjunction with a new gasoline service station on an approximately 29,500 square-foot vacant property. A drive-through automated car wash is also proposed with the service station. Off-sale alcohol (ABC Type-21) for beer, wine, and distilled spirits is requested for the convenience store. A Zone Variance is also requested for a deviation from the maximum driveway width, minimum street wall requirements, and the minimum setback for parking spaces.

Site Characteristics
The project is located on a 0.68-acre property comprised of four vacant lots located at the corner of Sweetwater Road and Orange Street. The site was previously annexed and rezoned to the MXD-2 district for a proposed commercial retail use and drive-through. A Conditional Use Permit was also approved for a drive-through in 2022 after the original approval expired. The current proposal does not include an adjacent single-family lot addressed 2305 Sweetwater Road, which was part of the previous approvals. The site is relatively flat and would require minimal grading to develop. However, the shape of the lot is triangular with a depth of approximately 203 feet on the eastern side of the property and a depth of just under 80 feet on the western side of the property. The overall width is approximately 201 feet.

To the north, there are single-family residences located in the County of San Diego. The northern portion of the street frontage along Orange Street is abutting the County of San Diego and single-family homes across the street. The remaining frontage is across the street from properties in National City, which are currently zoned Small Lot Residential (RS-2) and MXD-2. The property zoned MXD-2 to the east is occupied by a 7-11 convenience store. To the south, across Planning Commission
Meeting of November 18, 2024

Sweetwater Road, is Caltrans right-of-way occupied by the interchange of Interstate 805 and State Highway 54. Directly east of the site is the single-family home at 2305 Sweetwater Road. Additionally, the Sweetwater Road frontage includes newly-installed separated bike lanes on the north side of the right-ofway as well as a HAWK pedestrian crossing to access the bus stop on the south side of the road.

Proposed Use
The project proposes multiple uses of the property including a gasoline service station, convenience store, drive-through eating place, automated drive-through car wash, and residential units. Off-sale alcohol is also requested for the convenience store. Of these uses, the approval of a Conditional Use Permit (CUP) is required for the service station and convenience store, the sale of alcoholic beverages, and the drive-through. The zoning of the property, MXD-2, permits mixed-use developments and, specifically, the individual uses requested for this development.

The gasoline service station is proposed to have six double-sided fuel pumps (12 fueling stations). The fuel pump island would also serve to provide a total of 12 parking spaces. This use is subject to specific requirements in Section 18.30.190 of the LUC, which will be discussed in the subsequent section. Accessory to the service station is the proposed 900 square-foot automated car wash, which will be accessed from the southeast corner of the property. The fuel pumps and car wash are proposed to operate 24 hours daily. The variances requested by the applicant are largely related to the proposed service station use. The requests include a deviation from the maximum driveway width to allow 40-foot driveway entrances, a deviation from the minimum street wall requirement, and a deviation from the minimum setback requirement for parking space. A service station requires access for semi-trucks to deliver fuel and more “open air” space for the fuel pumps, which leads to a development style that is different than what is ordinarily permitted within the zone.

The convenience store is proposed within a 3,329 square-foot retail space in a new 14,932 square-foot building to the west of the fuel pumps. The building will also have 4,658 square-foot basement level that can be used for storage. The proposed hours of operation for the convenience store are 24 hours daily.

Alcohol sales, however, are proposed from 6:00 a.m. to 2:00 a.m. daily. The applicant is requesting an ABC Type 21 license, which allows for the sale of beer, wine, and distilled spirits for off-site consumption. Additional requirements Planning Commission
Meeting of November 18, 2024

related to the sale of alcohol beverages will be discussed in the subsequent section.

A drive-through lane is proposed to wrap around the western side of the proposed commercial building and serve a 1,297 square-foot suite that will house a restaurant or coffee shop. This suite will also have access from the Sweetwater frontage in conformance with the frontage standards of the MXD-2 zone.

Additional requirements for drive-through lanes are discussed later in this report.

The proposed queuing capacity of the drive-through lane is 12 vehicles.

Finally, the applicant proposed to construct five residential units on the second and third floors of the proposed building with the retail uses. Residential units are a permitted use and do not require discretionary approval. The total parking requirement for the proposed development is increased to 23 spaces with the provision of these units. During the review process, the applicant modified the proposed residential portion of the building to comply with to the height requirements of the zone.

Analysis
The applicant is proposing a development that requires the discretionary approval of seven separate requests. Each request should be considered independently for findings of consistency with the City’s General Plan and Land Use Code.

General Plan
The proposed project contributes new commercial activity and infill development, which is encouraged by the General Plan:

Policy LU 5.3: Encourage businesses to employ National City residents and support efforts to reduce local unemployment.

Policy LU 5.4: Encourage and incentivize strategic adaptive reuse and infill development of vacant land in commercial and mixed-use areas.

The proposal is for the development of a currently vacant site with a mixed-use project providing a variety of commercial offerings as well as additional housing units. The new businesses will introduce additional job opportunities to the area with seven employees at the new convenience store and service station and further employment at the future drive-through business.

Planning Commission
Meeting of November 18, 2024

The General Plan Land Use map designates the property a High Mixed-Use, which allows up to 75 dwelling units per acre. The applicant’s proposal only includes a residential density of 7.4 dwelling units per acre.

Land Use Code
In addition to specific code sections that will be discussed below, the project has been reviewed for conformance with the requirements of the MXD-2 zone and general development standards found in the LUC. The project meets all applicable standards, with the exception of the requested variances and some general requirements that will be included as conditions of approval. As previously mentioned, the proposed project is well below the maximum residential density of 75 dwelling units per acre and the maximum floor area ratio of 3.5 (less than 1.0 proposed). The project qualifies as a mixed-use development and is permitted to have additional floor area and reduced parking minimums. Thirty parking spaces are provided within the development, even though only 23 are required. While the project largely complies with the design standards of the zone, a condition of approval is included to ensure it is constructed in compliance with minimum transparency and frontage standards.

Additional conditions require compliance with Chapters 18.44 – Landscaping and

18.46 – Outdoor Lighting of the LUC.

Service Stations
Section 18.30.190 of the LUC allows for service stations and convenience stores with gasoline pumps with an approved Conditional Use Permit (CUP). Additional requirements for service stations include site planning standards, screening, building design standards, landscaping, and operational standards.

Site Planning Standards - A service station requires a minimum of one hundred feet of street frontage and a minimum site area of fifteen thousand feet. The site has approximately 431 feet of frontage with a lot area of 29,455 square feet. Site planning standards encourage the fuel pump islands to be screened by the main building structure and that the convenience store be placed at the street frontage with display windows along the side walk to encourage pedestrian use. The shape of the site, as well as the additional drive-through uses, make it impractical to move the fuel pumps behind the proposed building. In addition, there are residences adjacent to the property in the location encouraged by the code. The proposed development includes another commercial business along the street Planning Commission
Meeting of November 18, 2024

frontage and the convenience store is easily accessible via an internal sidewalk.

Additional standards related to curb cuts for service stations are being met.

Screening - A masonry screening wall, not less than five feet and no more than six feet in height is required along lot lines adjoining residential zones. The applicant has proposed a seven-foot high masonry wall. A condition of approval has been added to reduce the proposed wall height to six feet.

Building Fronts - The design of the proposed development is subject to the requirements of the MXD-2 zone as well as design requirements for service stations. The proposed development complies with these requirements through a consistent design scheme and architectural details.

Landscaping - The code has a general requirement that ten percent of the gross site area shall be landscaping. The development proposes approximately 14% of the land area to be devoted to landscaping.

Use Regulations and other standards - The LUC has use regulations for service stations related to automotive service and repair, fuel pumps, product display, and lighting. Most of these regulations are not applicable because the applicant is not proposing any automotive service or repair with the project. Conditions of approval have been added to ensure compliance with these various regulations.

Alcohol Sales
Section 18.30.050 of the LUC allows for off-site alcohol sales with an approved CUP. Additional requirements for alcohol CUPs include expanded notification, a community meeting, and distance requirements. City Council Policy 707 also regulates alcohol sales in the City. The applicant is proposing to sell beer, wine, and distilled spirits for off-site consumption in the convenience store. A condition of approval for the hours of alcohol sales reflects what the applicant has requested (6:00 a.m. to 2:00 a.m. daily). The store will be in operation 24 hours a day.

Mailing - All property owners and occupants within a distance of 660 feet are required to be notified of a public hearing for alcohol-related CUP applications.

Notice of this public hearing was sent to 168 occupants and owners. The notice included information on all the requests of this application and is provided as Attachment 4. At the time of the writing of this report, no public comments have been received for this item.

Planning Commission
Meeting of November 18, 2024

Community Meeting - Pursuant to Section 18.30.050.C of the LUC, a community meeting was held on Thursday, August 28, 2024 at 5:30 p.m. at the National City Chamber of Commerce. The meeting advertisement is attached (Attachment 8).

Per the applicant, one husband and wife attended the meeting and had no comments.

Distance Requirements – Per Section 18.30.050.D.5 of the LUC, no minimum distances from schools or other uses are required for convenience stores when alcohol sales are an accessory use. In addition, no schools are within the minimum distance of 660 feet.

Alcohol Sales Concentration/Location - According to the California Department of Alcoholic Beverage Control (ABC), there are four off-site license in census tract 122, where a maximum of two are recommended. Therefore, the census tract is considered to be over concentrated by ABC with regard to off-site alcohol sales outlets. The area along Sweetwater Road, east of N. 2nd Avenue, along with unincorporated Lincoln Acres, is included in Census Tract 122.

Police Department (PD) - The ABC Risk Assessment provided by PD allocated a total of 13 points, which places it in the Medium Risk category (Medium Risk is considered 13 to 18 points). The Risk Assessment is included as Attachment 6.

Institute for Public Strategies (IPS) - Comments were received from IPS with the following considerations:

1. Consider the issuance of a Type 20 license rather than Type 21. The ability to purchase alcohol at service stations may increase the opportunity for consumption while operating a vehicle.

2. Require that staff, management, and owner attend an in-person Responsible Beverage Sales and Service training. See the California Alcoholic Beverage Control website for future trainings.

3. Adhere to ABC requirements on window transparency.

4. Post required signage in English and Spanish.

5. Post signage related to open containers on the premises and loitering.

The license type being requested by the applicant is ABC Type-21. The applicant would need to modify their request with ABC as well as the City to obtain a Type20 license. The other considerations have been incorporated as conditions of approval.

Planning Commission
Meeting of November 18, 2024

Standard conditions of approval are included in the report in compliance with City Council Policy 707. IPS comments are included as Attachment 7.

Drive-Through Businesses
Section 18.41.020.C of the LUC, has specific requirements for drive-through business. This section also states a CUP is required for a drive-through lane. The three requirements include:
x Minimum queuing distances (established by CUP).
x Minimum 25-foot interior turning radius for drive-through aisles. x Location requirements for the drive-through window and landscaping A Local Transportation Analysis was completed for the project, a portion of which studied the queuing of the proposed drive-through lane and automated car wash.

Two separate case studies were used. The drive-through lane at a similar development located at 5494 Mission Center Road in the City of San Diego was used, which serves a drive-through only Starbucks coffee shop attached to a gasoline service station’s convenience store. The maximum queue at this location was 12 vehicles. The proposed project has capacity for 12 queuing vehicles and is expected to have sufficient room. A second study was conducted at a car wash facility located on a gasoline service station property at 1803 Highland Avenue in National City. This study observed a maximum queue of three vehicles. The applicant modified their plans to provide sufficient queuing space for the proposed car wash by shifting the entrance to the south side of the property.

The two drive-through lanes proposed for the project have been reviewed by the Engineering Department. The drive-through lane serving the proposed coffee shop or eating place complies with minimum turning radius requirements and is exempt from additional landscaping requirements since it is not located between the building and the street frontage. The automated car wash is an accessory use to the service station and does not have the same impacts as a drivethrough eating place since the selection menu is limited, no speaker system would be used, the volume of customers is relatively low as shown by queueing study, and the Engineering Department has already reviewed the proposed configuration. Staff does not consider this a drive-through business and, therefore, it would not be subject to additional requirements.

Planning Commission
Meeting of November 18, 2024

Traffic - The design of the proposed project places the drive-through lane at the back of the property and along the west side of the property on the west side of the property. A landscaped strip and masonry wall separates the drive-through lane from the adjacent property. A second drive-through lane for an automated car wash is located at the portion of the property closest to the intersection of Sweetwater Road and Orange Street. The car wash building is along the Orange Street frontage of the property. At the center of the property is a fuel pump island with 12 fueling stations, which is surrounded by the car wash, parking for residential units to the north, and a 14,932 square foot mixed-use building and parking to the west. Access to the site is from a two-way driveway on Orange Street and a two-way driveway on Sweetwater Road just east of the mixed-use building and adjacent row of parking. The configuration maximizes circulation on the property by creating a larger vehicle loop for the drive-through eating place that is served by a secondary exit and an internal loop served by wider two-way driveways that allows vehicles to access the fuel pumps, car wash entrance, and parking spaces. The applicant is also requesting wider drive-way entrances to reduce conflict with entering vehicles and fuel trucks. As previously mentioned, it is important to note the existing pedestrian and bicycle infrastructure on Sweetwater Road that would be impacted by this development.

The Local Transportation Analysis, Attachment 9, included a traffic impact analysis, which identified substantial effects from the proposed project. While impacts were analyzed, the project was not subject to further study by the California Environmental Quality Act (CEQA) because no significant impact on Vehicle Miles Traveled (VMT) were found. The threshold for VMT impacts for a similar development is a project with at least 50,000 square feet of proposed commercial floor area. The basis for the project’s traffic impacts is the anticipated trip generation. The analysis found that the project will generate a total of 2,743 daily trips with 195 AM peak hour trips and 231 PM peak hour trips. Of these 1,961 daily trips are Primary trips as opposed to Pass-By. Primary trips are those that are new to the street system as opposed to vehicles that are already circulating within the adjacent street network.

A Signal Warrant Analysis was included in the Local Transportation Analysis to study the need to upgrade the intersection of the Sweetwater Road and Orange Street with a traffic signal. The findings were significant. The level of delay within the existing conditions with the proposed project would be 23.7 seconds or Level of Service (LOS) C during the AM and 42.5 seconds or LOS E during the PM. In stark contrast, the intersection would operate at a LOS A for both periods with Planning Commission
Meeting of November 18, 2024

less than 10 second delay if a signal was introduced. The Local Transportation Analysis concluded that a traffic signal is warranted and that the applicant should pay a fair share of 70% the cost of removing the existing HAWK pedestrian crossing and installing a traffic signal at the Sweetwater Road and Orange Street intersection. In addition, the applicant is recommended to demo and reconstruct the existing bicycle infrastructure to provide driveway access to the site. These recommendations are included in the conditions of approval.

Noise - Noise issues related to drive-through businesses are usually related to vehicle queuing and ordering windows/speakers. Recent approvals for drivethrough businesses have required noise-attenuating speakers at the ordering window, which is addressed in the conditions of approval. The Planning Commission may consider restrictions on the hours of operation of the business, which is proposing up to 24-hour a day operation. There are other 24 hour drivethrough businesses currently operating within National City such as the Jack in the Box locations on Highland Avenue and East Plaza Boulevard as well as the under-construction Dutch Bros coffee shop. However, because of the ambient noise in the area due to the adjacent freeways, the speaker noise is not expected to be an issue.

Zone Variance
The MXD-2 zone supports the creation of mixed-use districts that serve as primary activity centers in the City, which are intended to function as twenty-fourhour neighborhoods for residents, workers, and visitors. Having a variety of uses in close proximity can have the effect of reducing car dependency. Development standards within this zone are intended to encourage developments with a sense of place, pedestrian-oriented environment, and accommodations for all modes of transportation. The proposed development, comprised of permitted uses in the MXD-2 zone, is unable to fully conform to the standards of this zone. The applicant has requested a Zone Variance for three requirements specific to the MXD-2 zone. The requests include:
x A deviation from the maximum two-way driveway width of 25 feet to allow for 40-foot driveway entrances.
x A deviation from the minimum street wall requirement of 75%. The street wall calculation in the MXD-2 zone is the percentage of street frontage with a building face constructed within 10 feet (the maximum setback) of the property line.
x A deviation from the 40-foot minimum parking setback adjacent to a street.

Planning Commission
Meeting of November 18, 2024

For the granting of a variance the following findings shall be made:

1. The variance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of Title 18 deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.

2. Any variance granted shall be subject to such conditions as will assure the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated.

3. A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property.

Drive-through businesses, gasoline service stations, and car washes are difficult to design in a manner that provides an environment that encourages a pedestrian-friendly urban district and the applicant is proposing all these uses. It is possible to design a project for these uses that conforms to all the standards of the zone, but the subject property is of a size and shape reduces the ability to meet required standards. On the eastern portion of the site the street frontage along Orange Street is approximately 203 feet, which is sufficient depth for the type of development the applicant is proposing. However, along Sweetwater Road the approximately 228 feet of frontage tapers down to the western side of the site where the depth of the site is just under 80 feet. The proposed development’s fuel pumps and canopy require a sufficiently large rectangular area that allows for vehicles to park while pumping gas and to circulate around the pumps. For this reason, the applicant’s proposed location of the fuel pumps is the only reasonable placement on the site without reducing the number of available pumps. The proposed layout is further cemented by the request to include a drive-through lane with sufficient queuing space, which is accomplished by wrapping the lane around the back and western side of the property. The mixed-use building follows the standards of the MXD-2 zone, but it only occupies a portion of the site. The remainder of the space on the site is taken up by the car wash use.

The first variance request, to allow for two 40-foot driveway entrances, is related to the provision of adequate ingress and egress of fuel and other delivery trucks.

Planning Commission
Meeting of November 18, 2024

Since the trucks are longer that standard passenger vehicles, their turning radius will be wider when entering and leaving the site. Without sufficient space there could be conflict with other entering or existing vehicles. There could also be issues with trucks cutting across a curb and damaging landscaping if they do not have proper maneuvering room. On a much larger site, the applicant could possibly provide an entrance specifically for trucks and longer driveway approaches to allow the trucks to exit without making a tight turn, but these options are not feasible on a 29,455 square-foot triangular property. Furthermore, the Sweetwater Road driveway is entering the roadway at an acute angle, exacerbating the potential for conflict while turning. Most service stations in National City were developed prior to the maximum driveway width requirement.

Two such uses are established in the MXD-2 zone, Gas King at 3009 Highland Avenue and Shell at 1606 East Plaza Boulevard; both have at least one existing driveway entrance exceeding 40 feet in width. Gasoline service stations are typically dispersed and there is not a location within the same zone and in the vicinity of the proposed project. The use is permitted in the zone with approval of a CUP.

The second request is to deviate from the minimum street wall requirements of the MXD-2 zone. In order to meet this requirement, the bulk of the structures would need to be located along the site’s two street frontages along Sweetwater Road and Orange Street. In this instance, as discussed above, a large portion of the site is dedicated to a structure, (fuel pump island) that could not contribute to the street wall. On a larger or more rectangular property, the fuel pump island could be located behind the convenience store building as the LUC encourages.

However, there is not sufficient lot depth, especially on the western portion of the property to accomplish this. The applicant’s site layout provides some street wall with the proposed commercial building and the car wash building, but the 75% requirement is not met. The majority of existing commercial and mixed-use developments in the MXD-2 zone, which was established in 2012, do not meet the 75% street wall requirement. As discussed previously, the proposed uses in the development are permitted with the approval of a CUP.

The third request is to deviate from the 40-foot setback for parking areas. This requirement is intended to ensure that parking areas are located in the rear of properties to create quality urban or pedestrian-oriented developments within the City. As discussed previously, the size and shape of the site make it impractical to develop the fuel pump island behind the proposed mixed-use building. For this reason, the parking area is configured around the sides of the building and Planning Commission
Meeting of November 18, 2024

driveways circling the fuel pump island. The intent of the 40-foot setback is compromised by the layout of the site since it is impractical to construct buildings in front of the parking spaces, particularly with a triangular lot. The proposed spaces will also be partially screened by landscaping. As with the other variance requests, most commercial development in the MXD-2 zone precedes the setback requirement and has parking spaces within 40 feet of street-facing property lines. The proposed uses are permitted within the zone, as previously discussed.

Comments
Comments were received from the Engineering Department, Fire Department, and Sweetwater Authority related to the development of the property. The Police Department and Institute for Public Strategies also provided comments on the request for off-site alcohol sales. The comments regarding alcohol have been previously discussed. The Engineering Department provided standard comments related to grading, storm water, land development, and right-of-way improvements. In addition, per the findings in the Local Transportation Analysis additional review will be needed for the required right-of-way improvements discussed in the study, which are also added as conditions of approval. The Fire Department provided standard comments related to the California Fire Code and fire access roads. The applicant is providing additional access at the request of the Fire Marshal on the property to the immediate west. The comments from Sweetwater Authority discussed the provision of service as related to the multiple parcels on site and right-of-way. The applicant will need to provide detailed plans to Sweetwater Authority once the design progresses. A condition of approval requiring a lot merger will also alleviate concerns with service provision. All comments are attached as conditions of approval in the draft resolution.

Findings for Approval
There are standard findings of approval for the requested Conditional Use Permit (CUP) as well as additional findings related to the sale of alcohol and specific findings related to the approval of a Zone Variance (ZV). The following are the standard findings for CUPs:

1. Allowable Use: The proposed uses are permitted within the Major, MixedUse District (MXD-2) zone, pursuant to a CUP, and the proposed uses meet the required guidelines in the Land Use Code (LUC) for service stations, drive-through eating places, and alcohol sales with the approval of a Zone Variance (ZV), as discussed in the staff report. The property is Planning Commission
Meeting of November 18, 2024

currently vacant and may be developed with the proposed mixed-use project.

2. General Plan Consistency: The proposed uses are permitted, subject to a CUP, by the Land Use Code, which is consistent with the General Plan. In addition, the mixed-use project with service station, drive-through eating place, and alcohol sales is consistent with the High Mixed-Use zone land use designation and the Community Character element of the General Plan.

3. Compatibility, LUC, and Traffic: The project, as discussed in the staff report, conforms with the development standards of the MXD-2 with the approval of the requested ZV as well as the guidelines related to the specific uses of service stations, drive-through lanes, and alcohol sales. Regulations within the LUC are intended to ensure compatibility with the surrounding area. In addition, a Local Transportation Analysis was submitted and approved with requirements for off-site improvements that will alleviate the impacts of increased traffic from the proposed development.

4. Suitability: The site is physically suitable for the type, density, and intensity of use being proposed, including access, utilities, and the absence of physical constraints, because the site is largely flat with minimal grading required, it is located in an urbanized area with access to services and utilities, and the project will be reviewed for compliance with applicable codes related to building and fire safety prior to the development of the lot.

5. No Nuisance: The proposed uses will be subject to conditions that limit the sale of beer, wine, and distilled spirits for off-site consumption as well as the hours that it will be available. All staff members that sell alcohol are required to receive RBSS training. Additional conditions of approval related to the proposed uses will ensure the project adequately addresses concerns related to noise, traffic, and exterior lighting.

6. California Environmental Quality Act (CEQA): The proposed project has been reviewed in compliance with the California Environmental Quality Act (CEQA) and has been determined to be categorically exempt from environmental review pursuant to Class 32, Section 15332 (In-Fill Development Projects) for which a Notice of Exemption will be filed subsequent to approval of this Conditional Use Permit and Zone Variance.

Planning Commission
Meeting of November 18, 2024

With the approval of a Zone Variance, this project can be found to be consistent with all applicable general plan policies as well as the regulations of the MXD-2 zone. The site is less than five acres and located in an urbanized area with no value as habitat for endangered, rare or threatened species. The project proposes a mixed-use development that will have no possibility for significant impacts relating to traffic, noise, air quality, or water quality with the approval of the subject conditions. The site can be adequately served by all required utilities and public services.

Additionally, the following finding is related to the sale of alcoholic beverages:

7. Public Convenience and Necessity: The convenience store, a permitted use in the Major Mixed-Use District zone, will benefit from the sale of alcoholic beverages for off-site consumption by providing for a wider diversity of commercial offerings in the area. Alcohol sales will also added to the viability of the proposed business.

Finally, the LUC contains three required finding for the granting of a Zone Variance:

8. The variance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of Title 18 deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification: The project is proposed for a property with a size and shape that is insufficient for conformance with requirements related to maximum driveway width, minimum constructed street wall, and minimum parking setbacks. The property is

0.68 acres in size and has a width of approximately 201 feet. However, the depth of the site tapers significantly from 203 feet along Orange Street to approximately 80 feet on the western lot line of the property creating a special circumstance. As discussed in the staff report, the size and shape of the lot impacts the ability for the applicant to provide a compliant site design with the above requirements.

9. Any variance granted shall be subject to such conditions as will assure the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated: The requirements the Planning Commission
Meeting of November 18, 2024

applicant requests relief from were established with the MXD-2 zone in 2012. Existing service station developments within this zone exceed the maximum driveway requirement of the zone and most mixed-use or commercial development does not meet either the minimum street wall or parking setbacks of the zone. The requested variances will not result in the granting of a special privilege and conditions of approval will ensure that the resulting development will be constructed and operate in a manner consistent with the surrounding area.

10.A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property: The proposed uses of the property are permitted in the MXD-2 zone with the approval of a CUP. A CUP, with conditions applicable to the requested uses, is included with this development proposal and the variance would not be approved without the approval of one or more of the proposed uses of the site.

Conditions of Approval
Standard Conditions of Approval have been included with this permit as well as conditions specific to the use regulations pertaining to the operation of a service station and drive-through business. Conditions related to off-site alcohol sales per Council Policy 707 (hours of operation, employee training, and accessory sales, etc.) are also included. Several application-specific conditions have been discussed in the staff report and can be reviewed in the attached draft resolution.

Summary
The proposed uses are consistent with the General Plan due to gasoline service stations, drive-through lanes, and convenience stores selling alcoholic beverage for off-site consumption being conditionally-allowed uses in Major Mixed-Use District zone. Other uses proposed for this site, including five residential units and an automated car wash, are permitted in the zone. Alcohol sales and the operation of the car wash are considered incidental or accessory uses to the convenience store and service station. With the approval of the applicant’s requested zone variances and the attached conditions of approval, the project can be found in compliance with all development regulations pertaining to the proposed uses in the Land Use Code. Specific conditions related to traffic and the requirement to make right-of-way improvements, noise, and lighting will also ensure the proposed development operates in harmony with the surrounding area. Staff encourages the Planning Commission to consider each request made by the applicant on their individual merits. It is within the purview of the Planning Planning Commission
Meeting of November 18, 2024

Commission to approve all or some to the requests, or deny the project as a whole, if appropriate findings can be made.

Options

1. Find the project exempt from CEQA under Class 32 of the CEQA Guidelines Section 15332 or other exemption and approve 2024-08 CUP, ZV, subject to the conditions included in the Resolution, or other conditions, and based on the findings included in the Resolution, or other findings to be determined by the Planning Commission; or,

2. Find the project exempt from CEQA under Class 32 of the CEQA Guidelines Section 15332 or other exemption and partially approve 2024-08 CUP, ZV, subject to conditions included in the Resolution, or other conditions, and based on the findings included in the Resolution, and other findings to be determined by the Planning Commission: or,

3. Find the project not exempt from CEQA and/or deny 2024-08 CUP, ZV based on the attached findings or findings to be determined by the Planning Commission; or,

4. Continue the item to a specific date in order to obtain additional information.

Attachments

1. Draft Resolution

2. Overhead

3. Applicant's Plans (Exhibit A, Case File No. 2024-08 CUP ZV, dated 11/13/2024)

4. Public Hearing Notice (Sent to 168 property owners & occupants)

5. Census Tract & Police Beat Maps

6. Police Department Comments

7. IPS Comments

8. Community Meeting Information

9. Local Transportation Analysis
EXHIBIT 3

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Nava'I Base San Diego
Dec 22~ 2014 • ~ •••
Mayor of Natio11a1I City, Ron Moririson, ,and
owner of the Mobil gas s1at1ion, Eddy Brikho,
donates ham to Naval Base San !Diego Sailors
for their famiilies ·to ,enjo~ duning the
holidays. HUGE thanks along with Josie, Ji'm
Brikho and Joseph Brilkho, fo,r lhe generous
gift!
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0 0 49 5 comments 2 shares
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Josic Flores-Clark
Brikho family, !he community is so lucky to have you, thank you and God bless you!!
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Joseph 8r1kho
That's very sweet, but its all because of you!' Thank you so much for helping us organize all the events! God Bless you & Merry Christmas!'
Sy l ike Reply
< Joseph Brikho
Posts Photos Videos
& Ron Morrison is with Josie Flores•
V Clark and 2 others at Highland
Mobil.

Dec 16, 2021 • 0
After providing hams for SUHi families
yesterday, the Brikho family provided 100
hams today for our local servicemen and
women at Naval Base San Diego. And they
also provided an additional 24 hams to the
MAAC Project for families.

This Is Indeed the true giving spirit by one of
our local businesses!
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¥ Clark and 2 others at Highland
Mobil.

Dec 15, 2021 • 0
This evening the Brikho Family were handing
out Christmas hams to Sweetwater High
families. This is what the National City
community is all about. A huge Thank You to
the Brikho Family!
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EXHIBIT 4

RESOLUTION NO. 2024-20

A RESOLUTION OF THE PLANNING COMMISSION

OF THE CITY OF NATIONAL CITY, CALIFORNIA

DENYING A CONDITIONAL USE PERMIT FOR A PROPOSED DEVELOPMENT

COMPRISED OF A NEW SERVICE STATION, CONVENIENCE STORE WITH REQUEST FOR OFF-SALE ALCOHOL (ABC TYPE-21), DRIVE-THROUGH CAR

WASH, DRIVE-THROUGH EATING PLACE, AND FIVE RESIDENTIAL UNITS WITH A

ZONE VARIANCE REQUEST RELATED TO MAXIMUM DRIVEWAY WIDTH,

MINIMIUM STREET WALL, AND THE LOCATION OF PARKING SPACES, TO BE

LOCATED ON VACANT PROPERTIES ON THE NORTH SIDE OF SWEETWATER ROAD BETWEEN OLIVE STREET AND ORANGE STREET.

CASE FILE NO. 2024-08 CUP, ZV
APNS: 563-252-12-00, 563-252-13-00, 563-252-14-00, AND 563-252-23-00 WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit for a proposed development comprised of a new service station, convenience store with request for off-sale alcohol (ABC Type-21 ), drivethrough car wash, drive-through eating place, and five residential units with a Zone Variance request related to maximum driveway width, minimum street wall and the location of parking spaces, to be located on vacant properties on the north side of Sweetwater Road, between Olive Street and Orange Street, at a duly advertised public hearing held on December 2, 2024, at which time oral and documentary evidence was presented; and,
WHEREAS, at said public hearing, the Planning Commission considered the staff report contained in Case File No. 2024-08 CUP, ZV maintained by the City and incorporated herein by reference along with evidence and testimony at said hearing; and,
WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law.

NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on December 2, 2024, support the following findings:

1. Granting the permit would constitute a nuisance or be injurious or detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zone in which the property is located, because the intensity of development of the site may result in public safety concerns related to traffic, both passenger vehicles and commercial fuel trucks, the sale of alcoholic beverages for off-site consumption, which may result in an increased propensity for over-consumption in an area already overconcentrated with outlets, and an increase in calls for service related to public safety in an area served by multiple jurisdictions.

2. Granting the permit would constitute a nuisance or be injurious or detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zone in which the property is located, because the proposed operation of a gasoline service station may result in the emission of hazardous fumes or noxious odors, which would be in close proximity to residential uses both on-site and off-site. The increase in traffic, as anticipated by the Local Transportation Analysis, may also result in diminished air quality in the vicinity of the site.

3. Granting the permit would constitute a nuisance or be injurious or detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zone in which the property is located, because the proposed development is comprised of uses that may create public nuisances including, but not limited to, the operation of a drive-through automated car wash and drive-through eating place that may produce excessive noise, general nuisances related to over-consumption of alcohol as mentioned above, ·and the potential for noxious odors related to the sale of gasoline.

4. Based on the above findings, public convenience and necessity will not be served by the off-site sale of alcoholic beverages pursuant to law.

BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council for review. The City Council may, at that meeting, decide to review the Planning Commission's decision and set the matter for a public hearing.

BE IT Fl NALLY RESOLVED that this Resolution shall become effective and final following City Council review and thirty (30) days following the Planning Commission's decision, unless an appeal is filed in writing with the City Clerk.

CERTIFICATION:

This certifies that the Resolution was adopted by the Planning Commission at their meeting of December 2, 2024, by the following vote:

AYES: MiLLER, FORMAN. CASTLE, ARMENTA.

NAYS: SANCHEZ, QUINONES.

ABSENT: VALENZUELA .

ABSTAIN: NONE .

CHAIRPERSON
EXHIBIT 5

Present:

Others Present:
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rir

SPECIAL MEETING MINUTES OF THE CITY COUNCIL
December 10, 2024, 5:00 p.m.

City Council Chamber -1243 National City Boulevard
National City, CA
Councilmember Bush
Councilmember Molina
Councilmember Rodriguez
Vice-Mayor Yamane
Mayor Morrison
Ben Martinez, City Manager
Barry J. Schultz, City Attorney
Shelley Chapel, City Clerk
Carlos Aguirre, Director of Community Development
Bruce Foltz, Director of Finance
Danielle Ghio, City Librarian
Brian Hadley, Deputy City Manager
Derek Aydelotte, Police Captain
Lydia Hernandez, Director of Human Resources
Tonya Hussain, Deputy City Clerk
Steve Manganiello, Director of Engineering & Public Works Evelyn Molina, Executive Secretary
Sergio Mora, Fire Chief
Martin Reeder, Assistant Director of Community Development Item pulled from the agenda.

13.1 Notice of Decision - Planning Commission Denial of a Conditional Use Permit (CUP) and Zone Variance (ZV) for a New Gasoline Service Station Development to be Located on a Vacant Property at Sweetwater Road and Orange Street Staff Recommended Approval of the Proposed Development Requesting a New Gasoline Service Station, Convenience Store with Off-Sale Alcohol (ABC Type21 ), Drive-Through Car Wash, Drive-Through Eating Place, and Five Residential Units, Subject to the Recommended Conditions in the Draft Resolution and a Determination that the Project is Exempt from CEQA. The Requested Uses are Conditionally Allowed within the Major Mixed-Use District (MXD-2) and the Project can be Found Consistent with the General Plan and Land Use Code with the Approval of the Requested Zone Variance.

13.2 Purchase of Thirty-Three (33) Axon Fleet 3 Video Solutions ("FLEET") Cameras for Police Department Vehicles.

Adopted Resolution No. 2024-170.

Adopt a Resolution Entitled, "Resolution of the City Council of the City Of National City, California,· 1) Waiving The Formal Bid Process Pursuant to National City Municipal Code Section 2.60.11 0(B) Regarding Exceptions to Formal Competitive Bidding and Authorizing the Purchase of Thirty-Three Axon Fleet 3 In-Car Video Solutions and Supporting Information, Services and Training from Axon Enterprise, Inc. in a Not-to-Exceed Amount of $279,248.78; and 2) Authorizing the Mayor to Execute an Agreement with Axon Enterprise, Inc. for the Purchase and Related Services."

13.3 San Diego Dispatch Agreement
Adopted Resolution No. 2024-171.

Motion carried by unanimous vote.

Adopt a Resolution Entitled, "Resolution of the City Council of the City of National City, California, Approving and Authorizing the Mayor to Execute an Agreement Between the City of San Diego and the City of National City to Provide Fire and Emergency Medical Dispatch Services to the City of National City for a Term of 5 Years Effective July 1, 2024 and Ending June 30, 2029." Motion carried by unanimous vote.

14. STAFF REPORTS

14.1 Appointments of City Councilmembers to Regional Boards and Committees for Outside Agencies
Adopted Resolution Nos. 2024-172, 2024-173, 2024-174, 2024-175

15. ADJOURNMENT
Mayor Morrison adjourned to the Regular Meeting of the City Council of the City of National City, Tuesday, January 21, 2025, at 6:00 p.m. in the Council Chamber, located in City Hall, 1243 National City Boulevard, National City, California.

The meeting adjourned at 7:09 p.m.

The foregoing minutes were approved at the Regul 2025.

R
EXHIBIT 6

From: Martin Reeder
To: Barry Schultz; Ashlin Lutes
Subject: FW: Sweetwater Gas Station - withdrawal application Martin Reeder | AICP
Assistant Community Development Director
Community Development Department
City of National City
1243 National City Blvd., National City, CA 91950
T: 619.336.4313 ❘ [email protected]
Website ❘ Facebook ❘ Instagram ❘ Twitter ❘ LinkedIn
From: Joseph Brikho [mailto
Sent: Tuesday, December 10, 2024 1:55 PM
To: Martin Reeder <[email protected]>
Cc: Eddy Brikho >; Carlos Aguirre <[email protected]>; Michael Kinoshita <[email protected]>; Erik Faucett <[email protected]>; Morgan Thomas <[email protected]>
Subject: Sweetwater Gas Station - withdrawal application CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Martian, how are you? We would like to withdraw our current application for CUP on the development at the corner of Sweetwater and Orange. We will place it on hold for now to revise the project and come back to meet with the City staff to see how we can find a project that will work for that intersection.

Thank everybody at the city for all their hard work on this project and we look forward to finding a path forward to get something built there.

Thank you,
Joseph Brikho
License#01434636
On Wed, Nov 27, 2024 at 1:58 PM, Thomas Morgan
<[email protected]> wrote:

Received.

Comments shall be forthcoming from the Applicant.
-
■
Tom
L. Thomas Morgan, CCIM
Retail Specialist - DUHS Commercial
3830 Ray Street
San Diego, CA 92104
(619) 944-3051 Cell
[email protected]
On Nov 27, 2024, at 12:31 PM, David Welch <[email protected]> wrote:

Good Afternoon,
Our Planning Commission agenda for Monday night and complete packet is published online. This can be accessed at the following link:
https://www.nationalcityca.gov/Home/Components/Calendar/Event/15596/786? curm=12&cury=2024#!/. The staff report and draft resolution are found in the packet.

I made a few modifications to the conditions of approval based on our conversation yesterday. Specifically, it was confirmed by the Engineering and Fire Departments that the references to underground utilities were for on-site improvements (conditions 29 and 37).

However, it was also decided that modifications to the size of containers for the sale of distilled spirits and the use of gasoline sales for condition 72 would require approval by our City Council since they would be policy changes from the previously approval Council Policy 707. I have a Notice of Decision currently planned as an item for the City Council meeting on December 10th. Should there be a public hearing at City Council, the next meeting date would be January 21st.

Thank you,
David Welch
Associate Planner
City of National City
1243 National City Boulevard
National City, CA 91950
Office: (619) 336-4224
Fax: (619) 336-4321
<image001.png>
City Hall Hours: M-Th 7a-6p
EXHIBIT 7

Anyone with access to this request
Requester + Staff
Sent Dec 4, 2024
I am requesting the following:

All communications between Highland Avenue Property investments, LLC, Josie Flores Clark, Ron Morrison, Edward (Eddy)Brinko, Robert Zakar, Joseph John Brikho, L. Thomas Morgan, Michael Kinoshita, Adeeb Asso Brikho, Martin Reeder, David Welsch Narasimha Prasad, Zahira Chayeb, John Boarman, JLinscott, Law & Greenspan, Engineers, all National City Officials, all San Diego County officials and anyone representing the city of National City or San Diego County, Caltrans, Engineering Department, Fire Department, Sweetwater Authority, Police Department, Institute for Public Strategies, San Diego County Air Pollution Control District (APCD) and California Air Resources Board.

Show less
Timeline Documents
Department assignment
Removed: Police.

January 16, 2025, 3:21pm by Staff
Message from requester
Re: National City PRA 24 679
My attorneys have sent Mr. Carlos Aguirre
the following email.
"Greetings: We represent the Public Records
Act requestor making the above PRA request
to National City. We clarified the request on
December 10, 2024, but we have still not
received any of the requested writings. To
aid your production we are pinpointing the
writings we are asking you to provide within
14 days as follows: Any writing as that term is
used in Evidence Code Section 250 between
Josie Flores Clark and Adeeb Asso Brikho
(Eddy Brikho) or Joseph Brikho regarding the
2024-08 CUP ZV project (the Project) that
came before the National City Planning
Commission on December 2, 2024 for the
period January 2023 to December 10,
2024. Also please include any such writings
between Josie Flores Clark and Carlos
Aguirre, Martin Reeder, or David Welsh or
any other National City Planning Department
employee regarding the Project for the
period January 2023 to December 10, 2024."
Thank you,
Micaela Polanco
January 16, 2025, 2:15pm by the requester
Message to requester
In response to your request for public records
within the City of National City. Records are
being located, and reviewed for this request.

To search for, collect, and appropriately
examine a voluminous amount of separate
and distinct records demanded in a single
request taking multiple staff members time to
pull and then go through a review process.

The City Clerk's Office will notify you when
the records are available for your review
and/or purchase within the next 60 days or
sooner when processed. These records may
be offered to release on a rolling basis - as
records become available and have been
reviewed they can then be released.

December 16, 2024, 2:S1 pm by Staff
Requester + Staff
Department assignment Anyone with access to this request Removed: Fire.

December 16, 2024, 2:S1 pm by Staff
Message from requester
Thank you for your response. For clarity,
please make sure the response includes text
messages, whether it from government or
personal phone use so long as it is with
those listed and about the proposed project.

Thank you.

December 10, 2024, 2:48pm by the requester
Message to requester
Micaela,
I have received your clarification and it has
been provided to staff. The public records act
allows the City 10 days to respond whether
we have records responding or not. The
request was received 12/4.

I am not able to attach additional emails to
this request as our system accepts only one
main requester.

Thank you.

December 10, 2024, 1:S2pm by Staff
Message from requester
To clarify, I am seeking all communications
between the National City Mayor, his office and
staff, and the Planning Dept., and all
communications between the other National
City employees or officials named in the
request, between each other or with those
persons and entities listed outside of National
City, relating to the proposed development of
property located at the corner of Sweetwater
and Orange (231 1 Sweetwater Rd)between the
dates of January 2023 to present. Also to
clarify, the spelling Brinko should be corrected
to Brikho.
please confirm and please also add my
attorneys, Mike Aguirre and Maria Severson, on
any responses to this
request. [email protected] and
mseverson@[email protected].

Requester + Staff
Requester + Staff
Requester + Staff
Thank you.

December 10, 2024, 1 :12pm by the requester
Message to requester
I have received your Public Records Act
request for information within the City of
National City.

Your request is overly broad and requires a
date range that is focused and specific enough
for staff to decipher what record or records are
being sought.

Should you have any questions in the
meantime, please contact Shelley Chapel, City
Clerk at (6 79) 336
4225or [email protected].

This is an overly broad request and it is
unclear if the requester is asking for emails
between Highland Avenue Property
Investments and the listed entities or just
with those entities. It is also assumed that
the request is in reference to a specific
project, but that is not specified in the
request.

December 10, 2024, 11 :44am by Staff
Message to requester
I have received your Public Records Act
request for information within the City of
National City.

Your request is overly broad. Of the National
City employees and public officials listed,
please clarify what entity/ individual you are
seeking their correspondence with?
Should you have any questions in the
meantime, please contact Shelley Chapel, City
Clerk at (6 79) 336
4225or [email protected].

December 9, 2024, 8:47am by Staff
Requester + Staff
Requester + Staff
Department assignment Anyone with access to this request Added: Fire, Police.

December 9, 2024, 8:29am by Staff
Department assignment Anyone with access to this request Added: Planning, Engineering,
City Manager's Office.

December 9, 2024, 8:29am by Staff
Department assignment Anyone with access to this request Added: City Attorney's Office.

December 9, 2024, 8:26am by Staff
Department assignment Anyone with access to this request Added: Information
Technology.

December 9, 2024, 8:26am by Staff
Message to requester
Your Public Records Act request has been
received for information within the City of
National City. In accordance with the
California Public Records Act we have 10 days
in which to respond to your request as to
whether we are in possession of records
responding. You will be notified when the
records requested are available for review
and/or purchase. The Public Records Act
allows the City to charge the direct costs of
duplication of public records with a copy
charge of$ 7.00 for the first page and$. 7 5 for
additional pages. That is for standard letter
sheets of paper, drawings, maps and other
media fees will be charged in accordance with
the City Master Fee Schedule available on the
City website. Should you have any questions
in the meantime, please contact Shelley
Chapel, City Clerk in City Clerk's
Office at (679) 336
4225 or [email protected]
December 4, 2024, 7:18pm
Requester + Staff
EXHIBIT 8

From: Joseph Brikho
To: [email protected]; [email protected]; Josie Flores-Clark - NC Mayors Office Cc: Eddy Brikho
Subject: Brikho Projects - National City
Date: Monday, April 22, 2024 3:11:51 PM
Attachments: 2305 BRIKHO CUP SUBMITTAL SET 4-19-24.pdf
PTL Highlands FS-1.0 EQUIP 12Oct2023.pdf
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

How are you? We look forward to seeing all of you this Wednesday to discuss our upcoming projects.

Please see the attachments of our upcoming projects that we will be discussing with you guys. I appreciate all of your help in advance.

Thank you,
Joseph Brikho
License#01434636
EXHIBIT 9

From: JC la [email protected]
Sent: Fri, 31 May 2024 04:05:14 +0000
To: [email protected]
Subject: FW: 2024-08 CUP Incomplete Letter
Attachments: Sweetwater Authority Comments CUP 2024-08.pdf From: Eddy Brikho
Sent: Thursday, May 30, 2024 4:43 PM
To: Josie Flores Clark <[email protected]>
Cc: Joseph Brikho
Subject: Fw: 2024-08 CUP Incomplete Letter
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Yahoo Mail: Search, Organize, Conquer
----- Forwarded Message-----
From: "David Welch" <[email protected]>
To: "Eddy Brikho" < "[email protected]" <[email protected]> Cc: "Thomas Morgan" <[email protected]>
Sent: Thu, May 30, 2024 at 4:33 PM Subject: RE: 2024-08 CUP Incomplete Letter We also received the Sweetwater Authority comments today. Please see attached.

From: David Welch
Sent: Thursday, May 30, 2024 3:15 PM
To: 'Eddy Brikho' < '[email protected]' <[email protected]> Cc: 'Thomas Morgan' <[email protected]>
Subject: RE: 2024-08 CUP Incomplete Letter
Good Afternoon,
The only additional comments I received from Engineering were:

1. An updated traffic study is required

2. The plans shall show the proposed driveway aprons with the following dimensions; a. Centerline distance from nearest property line
b. Width of driveway apron (minimum width of any driveway is twelve feet {12'}) c. Distance between the driveway aprons.

Thank you,
David Welch
Associate Planner
City of National City
1243 National City Boulevard
National City, CA 91950
Office: (619) 336-4224
Fax: (619) 336-4321
City Hall Hours: M-Th 7a-6p
From: David Welch
Sent: Wednesday, May 29, 2024 5:41 PM
To: Eddy Brikho >; '[email protected]' <[email protected]> Cc: 'Thomas Morgan' <[email protected]>
Subject: 2024-08 CUP Incomplete Letter
Good Afternoon,
The Planning Division has reviewed your application for a Conditional Use Permit for a service station and related uses and deemed your application incomplete. Please see the attached letter and let me know if you have any questions. Comment letters are forthcoming from our Building Division and Engineering and Fire Departments. We also anticipate receiving a comment letter from Sweetwater Authority. I will forward all comments as soon as they are received, which should be within one week. Furthermore, I have attached the comments already provided by SDG&E.

Sincerely,
David Welch
Associate Planner
City of National City
1243 National City Boulevard
National City, CA 91950
Office: (619) 336-4224
Fax: (619) 336-4321
City Hall Hours: M-Th 7a-6p
EXHIBIT 10

From:

Sent:

To:

Subject:

Attachments:
15-24.pdf
JClark@nationalcityca .gov
Thu, 15 Aug 2024 18:41:59 +0000
[email protected]; [email protected] FW: 2024-08 CUP - Response Letter and Updated Drawings
2024-08 CUP Incomplete Letter RESPONSE 8-15-24.pdf, BRIKHO progress set 8- From: Eddy Brikho
Sent: Thursday, August 15, 2024 11:29 AM
To: Josie Flores Clark <[email protected]>
Subject: Fw: 2024-08 CUP - Response Letter and Updated Drawings CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Eddy Brikhol President! MobilNalero Petroleum
5494 Mission Center Road l San Diegol CAI 92108
Edtfy Brikho
----- Forwarded Message -----
From: Michael Kinoshita <[email protected]>
To: Eddy Brikho < ; Joseph Brikho >; Thomas Morgan
<[email protected]>
Sent: Thursday, August 15, 2024 at 10:33:43 AM PDT
Subject: 2024-08 CUP - Response Letter and Updated Drawings Eddy, Joseph, Tom,
Attached are the updated drawings and response letter per our telephone conversation earlier this week.

I am updating the renderings to show the additional glass along the south elevation but for this response, I do not feel it should not affect the City's response as the Exterior Elevations, Sheet A2.2 addresses their concern.

Please let me know if you have any questions or comments.

Thank you.

Michael Kinoshita
Principal / President
MKA Inc. Architecture & Planning
7510 Clairemont Mesa Blvd. Suite 207 San Diego, CA 92111 .

Ph:858 268 8176 x101
EMail: [email protected]
EXHIBIT 11

From: josephbrikho
To: Josie Flores-Clark - NC Mayors Office; Eddy Brikho
Subject: 2311 Sweetwater Road CUP Applications
Date: Wednesday, October 9, 2024 8:57:17 AM
Attachments: image001.png
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Please see the responses below.

Thank you,
Joseph Brikho
License#01434636
-------- Original message --------
From: David Welch <[email protected]>
Date: 10/9/24 8:30 AM (GMT-08:00)
To: Thomas Morgan <[email protected]>
Cc: Eddy Brikho >, Joseph Brikho ,
Martin Reeder <[email protected]>
Subject: RE: 2311 Sweetwater Road CUP Applications
Good Morning Tom,
Reviewing my notes, there would be a need for three variances without further modifications to the development plan:

1.The street wall requirement for the MXD-2 zone is 75%. A variance request would be needed for a reduced street wall. (Table 18.24.040D)

2.The setback for parking areas adjacent to a street is 40 feet. A variance request would be needed for a reduced setback. (Table 18.24.040D)

3.The maximum width for a two-way driveway in the MXD-2 zone is 25 feet. A variance request would be needed to exceed the maximum driveway width. (Table

18.24.080B)
Along with a Planning submittal for a variance request, we would need to have justifications for the requested variances. I recommend reviewing the required finding for variances in Section 18.12.120.E for guidance on what information is needed in a justification.

We have two additional concerns with the project. One is the proposed above-ground tank.

This is a mixed-use zone and it is simply not allowed due to the residential uses. The other is the visibility of the drive-through exit facing west. The MXD-2 zone allows for development with no setbacks so we are looking for an instrument that would prevent a structure from being built on the southeast corner of the lot with the existing home. This will likely be an easement.

Finally, as previously discussed, we are still waiting on Engineering’s response to the traffic analysis.

Thank you,
David Welch
Associate Planner
City of National City
1243 National City Boulevard
National City, CA 91950
Office: (619) 336-4224
Fax: (619) 336-4321
City Hall Hours: M-Th 7a-6p
-----Original Message-----
From: Thomas Morgan [mailto:[email protected]]
Sent: Thursday, October 3, 2024 5:04 PM
To: David Welch <[email protected]>
Subject: Re: 2311 Sweetwater Road CUP Applications
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Hi David:

Thanks for the update.

Looking forward to hearing your thoughts in the variances.

Best,
Tom
L. Thomas Morgan, CCIM
Retail Specialist - DUHS Commercial
3830 Ray Street
San Diego, CA 92104
[email protected]
> On Oct 3, 2024, at 3:50 PM, David Welch <[email protected]> wrote:
>
> Hi Tom,
>
> The review of the traffic study will be completed by 10/22. It is being conducted by our Director of Engineering/Public Works.
>
> Martin and I chatted about the potential variances about a week ago, but I have been busy preparing for Monday's Planning Commission meeting. I can send you my thoughts on the next steps either Monday or Tuesday of next week.
>
> Thank you,
>
> David Welch
> Associate Planner
> City of National City
> 1243 National City Boulevard
> National City, CA 91950
> Office: (619) 336-4224
> Fax: (619) 336-4321
>
> City Hall Hours: M-Th 7a-6p
>
>
> -----Original Message-----
> From: Thomas Morgan [mailto:[email protected]]
> Sent: Thursday, October 3, 2024 1:45 PM
> To: David Welch <[email protected]>
> Cc: Eddy Brikho < ; Joseph Brikho < >
> Subject: 2311 Sweetwater Road CUP Applications
>
> CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders. >
> Hi David:
>
> Do you have an update as to where we are with the Traffic Study Update, and what are the next steps?
>
> Thanks much,
>
> Tom
>
> L. Thomas Morgan, CCIM
> Retail Specialist - DUHS Commercial
> 3830 Ray Street
> San Diego, CA 92104
>
>
> [email protected]
EXHIBIT 12

< . ••
4 People
< I r' .,'!•' , '.,' I
~ () ' '• H • I •
-, ,.-n.Mayo,) City-M~iaJ;r, :!I
~J~. and Edd~1 Jttttkho • J ■ ■---- ■ ■-■ - .: •---■.-1 •- !.----~•'!!!!'••~' W Thankyou
,,
~ Thanks. Ben
Thank you
EDDY
'" , .

Hi Eddy and Joey. Please
come this Wednesday at
2:00pm to city hall. Thanks.
~ Ben
+
1 <
+
4 Peopte
Perfect thank you, see you
at 2:00p.m.
'' '
. 4 ~ • . '
• r •• '... 'u.,,
Upstairs in the large
conference room off the
lobby. Thanks
Thank you
M I l
How are you guys? Look
forward to seeing you at
2:00 p.m. is anyone from
planning going to be sitting
in on our meeting? The city
traffic engineer said he
would be sitting in with us.

Please let me know
+
9:07 •• 9 -
4 People
Yes, both will be there
Thank you
Weare here
r..• r
Ben, How are you? Can you
please contact me back. We
need to speak about the
existing CUP for Sweetwater
& Orange. We need to do
whatever we can to renew it.

We allowed it to exolre
-
4 People
Weare here
Ben, How are you? Can you
please contact me back. We
need to speak about the
existing CUP for Sweetwater
& Orange. We need to do
whatever we can to renew it.

We allowed it to expire
because we thought our
proposed project was gotng
to replace it because we put
so much work and had
support from the City but
now we are in a battle that
we didn't expect. We need
to make sure we can atleast
at the minimum build what
W was approved before.
,.

EXHIBIT 13

www.aptusCR.com I 866.999.8310
·1· · ·type of e-mail.· I don't believe I found any e-mails ·2· · ·where I would have initiated an e-mail, so it would have ·3· · ·just been copies from planning.
·4· · · · · · · ·There probably -- there would have been e-mails ·5· · ·from the mayor's office inviting me to a meeting, to ·6· · ·meetings.· So that's usually generated by e-mail, and ·7· · ·then its placed on the calendar.
·8· · · · · · · ·And then as far as the -- I had two cell phones ·9· · ·during the time I was city manager.· I had one cell phone 10· · ·that was giving me a lot of -- I got a lot of spam calls, 11· · ·and I turned that cell phone -- traded that in for 12· · ·another work cell phone with IT before the PRA lawsuit, 13· · ·before any of this happened.· I think it was around 14· · ·November or early December of '24.· It was before 15· · ·anything -- before this.· So I gave that to IT.· So I 16· · ·don't have that phone.· It's out of my possession. 17· · · · · · · ·The new phone I would have looked at it and 18· · ·said "Is there anything in here?"
19· · · · · Q.· ·And did you rely on somebody else to accumulate 20· · ·all those, whatever it was that you found for purposes of 21· · ·responding to the PRA?
22· · · · · A.· ·I don't recall if I had my assistant Esther 23· · ·Clemente help me.· I don't recall.· It's very possible. 24· · ·And then I remember speaking to the city attorney at 25· · ·least once saying --
·1· · ·quite some time, since I was employed at the City and ·2· · ·with another position.· It had a lot of -- a lot of, you ·3· · ·know, text messages on it.· When I became city manager -- ·4· · ·when did I become?· I think I became interim city manager ·5· · ·around August of '23.
·6· · · · · Q.· ·Okay.
·7· · · · · A.· ·So, yes.· Between August '23 and when I turned ·8· · ·the phone in in late August.
·9· · · · · Q.· ·Late August?
10· · · · · A.· ·No, no.· Late -- in late '24.· So it would have 11· · ·been over a year, right?· Does that make sense?
12· · · · · Q.· ·August '23 to December '24?
13· · · · · A.· ·So, yeah, there would have been text messages. 14· · ·Yeah.
15· · · · · Q.· ·With Josie?
16· · · · · A.· ·Likely Josie and -- yeah.
17· · · · · Q.· ·Even the mayor?
18· · · · · A.· ·The mayor, yeah, council members.
19· · · · · Q.· ·Okay.· Now, you said that you had -- you also 20· · ·had a personal phone that you had while you were city 21· · ·manager.· Did you ever text message City employees on 22· · ·your personal phone?
23· · · · · A.· ·No.· No.
24· · · · · Q.· ·We have identified four different phone numbers 25· · ·for Josie for her phone.· Do you remember that she had EXHIBIT 14

www.aptusCR.com I 866.999.8310
· giving you his cell phone?
· · · ·A.· ·Yes.
· · · ·Q.· ·Can you tell us the circumstances, what
· happened?
· · · ·A.· ·Yes.· So we were in the process of moving from · Verizon to AT&T, whole City.· Ben was the last phone that · I did just because of scheduling on his side.· It
· happened in the week before we went on furlough, so maybe · December.· He turned in the phone.· I asked him "Do we · need to move stuff from this phone to your new phone?" · He declined.· We erased it, and I gave him his new phone. · · · ·Q.· ·I'm sorry.· You erased what?
· · · ·A.· ·The phone that he turned in.
· · · ·Q.· ·And when did that happen?
· · · ·A.· ·Same time when the hand-off happened.
· · · ·Q.· ·Now, did you log in the receipt of his phone? · · · ·A.· ·Log in the receipt?· You mean like a paper
· trail?
· · · ·Q.· ·Yes.
· · · ·A.· ·No.
· · · ·Q.· ·Where did you receive the phone?
· · · ·A.· ·In his office.
· · · ·Q.· ·Did you receive the phone from who -- let me · withdraw that.
· · · · · · Who did you actually receive the phone from? · · · ·Q.· ·Who is the assistant?
· · · ·A.· ·Esther.
· · · ·Q.· ·Esther.· So did you have some interaction with · Esther about this as well, about the exchanging of
· phones?
· · · ·A.· ·I believe so.
· · · ·Q.· ·Okay.· So somehow you got the message back to · Ben to "Get me back the phone that I'm replacing and make · sure you erase it because I don't have your number."
· · · ·A.· ·Yeah.
· · · ·Q.· ·Is that basically what happened?
· · · ·A.· ·Basically it.
· · · ·Q.· ·Okay.· And then at some point you got the phone · back?
· · · ·A.· ·Correct.· And I don't recall if it was before · furlough or after furlough.· I would think it was before. · · · ·Q.· ·Okay.· And then where did that phone go?
· · · ·A.· ·It goes into like a pile for redistribution, if · they're not beat up enough.· Like, if they're not old or, · like, physically damaged, we redistribute them.
· · · ·Q.· ·Okay.· Was that phone redistributed?
· · · ·A.· ·I believe so.· I'm not too sure.
· · · ·Q.· ·Do you know who it might have been
· redistributed to?
· · · ·A.· ·I can check our new hires from January and
· · · ·Q.· ·Well, that's great.
· · · ·A.· ·And I kind of like helping people with that. · · · ·Q.· ·Well, I want you to help us.
· · · ·A.· ·Yeah, of course.
· · · ·Q.· ·And you have.· And you have.
· · · · · · Okay.· Did you ever talk to Ben about whether · the phone was or was not erased?
· · · ·A.· ·No.· Like I said, the standard procedure on · people turning in phones if we're not working with them · is request for them to erase it.· And like I said, I
· don't recall if the phone was erased when I -- when it · turned in.· Like, what we'll do is we'll get the phone, · we'll turn it on, and if it comes up saying in all the · different languages "Welcome," then we know it's erased. · If it comes up and it's -- and it comes up to the Apple · home screen, we'll just check to see that there's nothing · on it.
· · · ·Q.· ·And his was an Apple phone?
· · · ·A.· ·Correct.
· · · ·Q.· ·Okay.· Now, do you see Exhibit 1?· It's a
· public records request.
· · · ·A.· ·Uh-huh.· Yes.
· · · ·Q.· ·Have you seen that before?
· · · ·A.· ·No.
· · · ·Q.· ·And do you see the date that it was received? · It's on the left-hand side.· If you look at the very top, · left-hand side, it has Dates, and then there's a word · that says "Received."
· · · · · · Do you see that?
· · · ·A.· ·Yes.
· · · ·Q.· ·Okay.· What's that date?
· · · ·A.· ·May 11, 2025.
· · · ·Q.· ·I think it says May [sic] 9th, doesn't it?
· · · ·A.· ·No.· Maybe I'm -- no.· I'm sorry.· I'm looking · at this number here.· This thing was blocking this.· So I · see received December 9, 2024.
· · · ·Q.· ·Okay.· So, and then the furlough -- your best · judgment is that Mr. Martinez delivered his -- actually, · let me withdraw that.
· · · · · · Your best judgment -- actually, let's go back · for a second.
· · · ·A.· ·Uh-huh.· Yes.
· · · ·Q.· ·Is what you're thinking is that you obtained · Mr. Martinez's phone from Esther when you went up to his · office sometime after you had delivered the new phone? · · · ·A.· ·Correct.
· · · ·Q.· ·Okay.
· · · ·A.· ·And I actually delivered the phone maybe in · November, and it sat there forever, and I took it back. · And I think that's what sparked the movement to actually · change the phone.· Once I took it off the desk, I think · that triggered the, okay, I do need to take care of this. · · · ·Q.· ·Okay.
· · · ·A.· ·And I do remember it happened in December, the · latter part of December, closer to the furlough than
· being closer to the beginning of the month.
· · · ·Q.· ·Okay.· Now, think about it this way.· Help me · with this.· So we had a public records request that we · were looking for, in part, text messages that were on · Mr. Martinez's phone because he had had interaction with · the people that we were trying to get e-mails from.· So, · you know, did anyone tell you -- let me withdraw that. · Actually, let me withdraw that.
· · · · · · How did you confirm that whatever text messages · were on Mr. Martinez's phone had been erased?
· · · ·A.· ·See, this is why I believe it was erased before · I got it; because I don't recall seeing anything on the · phone.
· · · ·Q.· ·Okay.
· · · ·A.· ·Yeah.
· · · ·Q.· ·But how did you look on the phone if you didn't · have his --
· · · ·A.· ·Like I said, there are phones that -- there are · some employees that opt not to put a PIN on their phone, · so --
· · · ·A.· ·Like I said, if the phone's unlocked without a · PIN, you can get into a phone.
· · · ·Q.· ·Okay.
· · · ·A.· ·Yeah.
· · · ·Q.· ·But you don't have a specific recollection of · it being unlocked, do you?
· · · ·A.· ·No.· But if it was locked, I would have had to · contact him for a PIN, and I don't recall that.
· · · ·Q.· ·Okay.· So I guess the best thing we can do now · is try to locate that phone?
· · · ·A.· ·I can do that.
· · · ·Q.· ·And so what do you need from us?· Just his
· telephone number?
· · · ·A.· ·And I have that someplace.· I just -- I have a · record -- our bills go back years, so I can just go back · to the Verizon bills, look for the phone that was
· assigned to him, the IMEID, and try to match it and see · if anything comes up in the AT&T system with that IMEID. · If it doesn't -- I don't know that we've sent any phones · for recycling since December.· Yeah.· I don't think we've · done an e-waste, so it may be in a pile someplace.
· · · ·Q.· ·Okay.· Now, what type of shape are the Verizon · bills in?· Are they computerized?· Are they paper?
· · · ·A.· ·We go digital, just like you would with a bank. · It's just such a big bill.
· STATE OF CALIFORNIA· ·)
· · · · · · · · · · · · )
· COUNTY OF RIVERSIDE· ·)
· I, SUZANNE BRADLEY, Certified Shorthand Reporter for the · State of California, do hereby certify:
· That the witness in the foregoing deposition was by me · first duly sworn to testify to the truth, the whole
· truth, and nothing but the truth in the foregoing cause; · that the deposition was taken by me in machine shorthand · and later transcribed into typewriting, under my
· direction, and that the foregoing contains a true record · of the testimony of the witness.
· Dated:· · This 2nd day of July, 2025, at Temecula,
· California.
· · · · · · · · · · ·
· · · · · · · · · · · · · · · · SUZANNE BRADLEY
· · · · · · · · · · · · · · · · CSR NO. 13233
EXHIBIT 15

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Date: 12/23/2024 (all day)
EXHIBIT 16

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·1· · · · · · · · SUPERIOR COURT OF CALIFORNIA
·2· · · · · · · · · · COUNTY OF SAN DIEGO
·3
·4· MICAELA POLANCO,
·5· · · · · · ·Plaintiff,
·6· · · ·vs.· · · · · · · · · · · · · · No. 25CU004193C ·7· THE CITY OF NATIONAL CITY,
· · et al.,
·8
· · · · · · · ·Defendants.
·9· _________________________________
10 11
12 13
14 15
16· · · · · · · ·DEPOSITION of RONALD MORRISON
17· · · · · · · · · ·San Diego, California
18· · · · · · · · · · · · May 28, 2025
19 20
21 22· Pages 1 - 66
23· Reported by:
· · Veronica S. Thompson
24· California CSR 6056, RPR, CRR, CCRR
25· Job No. 10164479
·1· · · ·A.· ·No.
·2· · · ·Q.· ·You have one for your campaign, and you have ·3· two other ones?
·4· · · ·A.· ·No.· I have a city phone, and I have just my ·5· personal phone.· That's it.
·6· · · ·Q.· ·Do you recognize the number
·7· · · ·A.· ·That's a city phone.· City cell phone, I
·8· should say.
·9· · · ·Q.· ·Do you recognize the number
10· · · ·A.· ·That was a landline at my house that I have 11· not had for years.
12· · · ·Q.· ·And do you recognize the number 619-339-1539? 13· · · ·A.· ·That's my personal phone.· Yes.
14· · · ·Q.· ·Okay.
15· · · ·A.· ·Personal cell phone.
16· · · ·Q.· ·Okay.· Tell us, when did you review the phone 17· number to see if it might have text
18· messages responsive to the PRAs in this case?
19· · · ·A.· ·It was before I answered -- before I turned in 20· the material to the City.
21· · · ·Q.· ·Okay.· But --
22· · · ·A.· ·I can't give you the exact date.
23· · · ·Q.· ·As best you can.
24· · · ·A.· ·Whatever the date was.· I mean, we've been hit 25· with so many PRAs, so try to remember the exact -- how ·1· page under "dates" it says a December date?
·2· · · ·A.· ·Oh, received December 9.· I see it up there ·3· now, yes.
·4· · · ·Q.· ·Okay.· So were you in the City of National ·5· City during the month of December?
·6· · · ·A.· ·Yes.
·7· · · ·Q.· ·And while you were in National City, did you ·8· review your telephone number to see if
·9· there were email -- or text messages responsive to
10· request 24-688?
11· · · ·A.· ·I looked through it, yes, and -- but that was 12· IT that did the reporting off of -- off of that -- off 13· the city phone.
14· · · ·Q.· ·And you're saying that the phone
15· is a city phone?
16· · · ·A.· ·Yes.
17· · · ·Q.· ·And when you say IT, who do you mean?
18· · · ·A.· ·Our -- our -- our computer division goes
19· through all of our IT equipment.
20· · · ·Q.· ·What -- who in the computer division?
21· · · ·A.· ·I don't know who.· I don't know who
22· individually did this one, but they're in charge of 23· looking over both our computers and our cell phones as 24· far as the city equipment, and they turn all that in. 25· · · ·Q.· ·Did you submit your phone number with the ·1· number to someone in your IT department to
·2· review for responsive records to request No. 688?
·3· · · ·A.· ·They have access to all of our -- they have ·4· electronic access to all of that.· I don't have to
·5· actually hand them the phone itself.
·6· · · ·Q.· ·Okay.· So you -- is the answer to my question ·7· you did not submit your phone?
·8· · · ·A.· ·Don't submit the phone, no, because they have ·9· electronic access to it.
10· · · ·Q.· ·They have -- so the text messages that you 11· send and receive on phone number are stored
12· somewhere in addition to your actual phone?
13· · · ·A.· ·Yes.
14· · · ·Q.· ·And where are they stored?
15· · · ·A.· ·On the city -- city computer system.· I'm 16· not -- I'm not an IT person, but this is -- but as I 17· say, they already said that they do all, like, text 18· messages, emails, everything else.· And whether if
19· someone is -- has, you know, altered them or not, it 20· doesn't make any difference.· They have all that.
21· That's what they've informed me, and that's -- so
22· they've turned all that in.
23· · · ·Q.· ·And who was it that informed you of that? 24· · · ·A.· ·I've been informed both by our legal
25· department --
·1· · · ·A.· ·I would have to remember what all was in on ·2· this particular PRA, but anything that referred to it, ·3· whether if it was the different things you used here on ·4· Brikho.· It was on Sweetwater.· It was on gas station. ·5· It was on all those different things.· Sweetwater Road. ·6· All those different things.
·7· · · ·Q.· ·You did that personally?
·8· · · ·A.· ·Yeah.
·9· · · ·Q.· ·And how long did you take time to do that? 10· · · ·A.· ·I tried to remember on that one.· It was
11· probably a good couple hours going through that stuff 12· just to take a look and see.· I say, that was the first 13· of many, many PRAs on the subject, so I did probably a 14· little bit more looking on that to see what there was 15· because it covered a lot of area and area that I hadn't 16· looked over in a while.
17· · · ·Q.· ·Did anyone assist you to do that?
18· · · ·A.· ·No.· Other than IT doing their separate thing. 19· But did not -- did not directly help me, no.
20· · · ·Q.· ·And how did you know someone at IT was doing 21· that?
22· · · ·A.· ·Because I was informed by our legal counsel. 23· · · ·Q.· ·Okay.· Did anyone from IT -- did you talk to 24· anyone from IT?
25· · · ·A.· ·Not directly, no.
·1· made copies and turned those in.
·2· · · ·Q.· ·Okay.· Now, is that -- is your -- is your ·3· 619-339-1539 -- is that phone -- is that -- that's the ·4· phone that's connected to your computer?
·5· · · ·A.· ·To my home computer, yes.
·6· · · ·Q.· ·Okay.· And did you find some text messages on ·7· that phone that were responsive?
·8· · · ·A.· ·I -- I believe so.· I'm -- I believe so, but ·9· can -- but with all these PRAs, I'm not going to be a 10· hundred percent sure on which one had stuff that was 11· related on those individual disclosures.
12· · · ·Q.· ·Now, is your -- is your -- is your
13· 619-339-1539 number -- is that connected to your Hotmail 14· account?
15· · · ·A.· ·Yes.
16· · · ·Q.· ·And did you find any -- let me start.
17· · · · · · Did you review your phone to see if you had 18· any emails that were responsive on your Hotmail?
19· · · ·A.· ·Yes, I did.
20· · · ·Q.· ·Did you find any?
21· · · ·A.· ·If I did -- I'm not going to swear one way or 22· another.· If I did, I turned them in.· Made copies and 23· turned them in.
24· · · ·Q.· ·So you can't remember if you found any?
25· · · ·A.· ·Not off -- not on that specific PRA, I'm
EXHIBIT 17

www.aptusCR.com I 866.999.8310
·1· · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA
·2· · · · · · · · · · ·COUNTY OF SAN DIEGO
·3
·4· ·MICAELA POLANCO,· · · · · · · )· Case No. 25CU004193C · · · · · · · · · · · · · · · · · ·)
·5· · · · · · Plaintiff,· · · · · ·)
· · · · · · · · · · · · · · · · · ·)
·6· ·v.· · · · · · · · · · · · · · )
· · · · · · · · · · · · · · · · · ·)
·7· ·THE CITY OF NATIONAL CITY,· · )
· · ·et al.,· · · · · · · · · · · ·)
·8· · · · · · · · · · · · · · · · ·)
· · · · · · · Defendants.· · · · · )
·9· ·______________________________)
10 11
12 13· · · · · · · · · DEPOSITION OF RON WILLIAMS
14· · · · · · · · · · · · · ·VOLUME 1
15· · · · · · · · · · San Diego, California
16· · · · · · · · · ·Wednesday, June 4, 2025
17 18
19 20
21 22· ·Reported by:
· · ·DENISE MARLOW
23· ·RPR, CSR No. 11631
24· ·Job No. 10165479
25· ·PAGES 1 - 47
·1· · · ·Q.· And how would you determine if there was a saved ·2· ·search?
·3· · · ·A.· I would just look.
·4· · · ·Q.· Into --
·5· · · ·A.· In the system, Barracuda.
·6· · · ·Q.· What specifically would you do?
·7· · · ·A.· I would log in, and then there's a thing that ·8· ·says "saved searches," and I would look and see if there ·9· ·was a saved search.
10· · · ·Q.· Okay.· And then what is it that you're searching 11· ·in Barracuda?· What exactly are you searching?
12· · · ·A.· You do searches, keyword searches.
13· · · ·Q.· But I mean of what?
14· · · ·A.· For e-mails.· Barracuda's a e-mail archiver. 15· · · ·Q.· Right.· But what is your archiver searching? 16· ·What is the domain in which they are conducting the 17· ·search?
18· · · ·A.· They're searching National City e-mails.
19· · · ·Q.· That are in what?
20· · · ·A.· I don't get your question.
21· · · ·Q.· Well, what program are you searching?
22· · · ·A.· Oh, what is the e-mail, what e-mails?· Oh, it's 23· ·Exchange, I'm sorry, Microsoft Exchange is the e-mail 24· ·system.· Microsoft Exchange.
25· · · ·Q.· And so National City uses Microsoft Exchange as ·1· ·the basic e-mail program?
·2· · · ·A.· Correct.· That's correct.
·3· · · ·Q.· And does that include calendaring?
·4· · · ·A.· Calendaring is in the e-mail system, yeah, but ·5· ·the users are the ones that usually provide their actual ·6· ·calendars.
·7· · · ·Q.· Their actual calendars --
·8· · · ·A.· Yeah, so if there's a PRA request with
·9· ·particular users, those users turn over their calendars. 10· · · ·Q.· So that's not something you did?
11· · · ·A.· No, I don't usually turn over calendars.· I just 12· ·search the e-mails.
13· · · ·Q.· You didn't search the calendars?
14· · · ·A.· I didn't search the calendars.
15· · · ·Q.· And did you search for text messages?
16· · · ·A.· No.· No, I don't.
17· · · ·Q.· Did you search any of the cell phones?
18· · · ·A.· No, I didn't search any cell phones.
19· · · ·Q.· So in response to 688, if you turn to the second 20· ·page of Exhibit 1 and the pages thereafter, you see that 21· ·there's an itemization of the documents that were
22· ·produced in response to 688.
23· · · ·A.· Uh-huh.
24· · · ·Q.· Do you see that?
25· · · ·A.· Yes.· Yes.
·1· · · ·A.· No, I do not.
·2· · · ·Q.· Can we take a five-minute break?
·3· · · ·A.· Sure.
·4· · · · · ·(Off record)
·5· ·BY MR. AGUIRRE:
·6· · · ·Q.· Did you search Ron Morrison's cell phones for ·7· ·text messages?
·8· · · ·A.· I don't search cell phones.
·9· · · ·Q.· Okay.· But still --
10· · · ·A.· No, I did not.
11· · · ·Q.· Okay.· Did you search Ben Martinez's cell phone 12· ·for text messages?
13· · · ·A.· No.
14· · · ·Q.· Did you search David Welch's cell phone for text 15· ·messages?
16· · · ·A.· No, I did not.
17· · · ·Q.· Did you search Martin Reeder's cell phone for 18· ·text messages?
19· · · ·A.· I did not.
20· · · ·Q.· Forgive me for asking the same questions over 21· ·and over and over again.
22· · · ·A.· It's okay.
23· · · ·Q.· Now, when the mayor uses his city-issued cell 24· ·phone for text messages, are his text messages stored on 25· ·the city's server?
·1· · · ·A.· No.
·2· · · ·Q.· Do you know if there's still any of the computer ·3· ·systems that the city has?
·4· · · ·A.· No.
·5· · · ·Q.· They're not stored?
·6· · · ·A.· They're not.
·7· · · ·Q.· And would that be true of all of National City; ·8· ·mayor, city attorney, city manager, council member? ·9· · · ·A.· Correct.
10· · · ·Q.· When you found e-mails in response to 688 and 11· ·25-17, you said you saved those?· Or what exactly did do 12· ·you with those?
13· · · ·A.· Yeah, I upload them into NextRequest, which is 14· ·the request system.· And then staff goes through, like 15· ·the city attorney, city clerk, they go through them. 16· · · ·Q.· Okay.· So you do recall finding some e-mails, I 17· ·take it?
18· · · ·A.· I mean, this was a while ago.· I do this all the 19· ·time, so I don't know specific -- I don't remember 20· ·specifically about this but --
21· · · ·Q.· All right.· That's fair enough.· That's fair 22· ·enough.
23· · · · · ·All right.· Is it Damon Dong?
24· · · ·A.· Damon Dong.
25· · · ·Q.· And how long has he been with the city?
·1· ·Mr. Aguirre's -- not mine -- Mr. Aguirre's calendar ·2· ·entries, in response to the public records request in ·3· ·this case?
·4· · · ·A.· Yeah, that's correct.
·5· · · ·Q.· Oh.· And that's also true for David Welch and ·6· ·Martin Reeder?
·7· · · ·A.· Correct.
·8· · · ·Q.· You did not search for their calendar entries? ·9· · · ·A.· I didn't search for their calendar entries. 10· ·That's correct.
11· · · · · ·MR. AGUIRRE:· We'll take one more break.· I'm 12· ·trying to get out of here as fast as I can.· We'll be 13· ·right back.· I just want to make double sure that
14· ·everybody's onboard with me.
15· · · · · ·(Off record)
16· ·BY MR. AGUIRRE:
17· · · ·Q.· Did you receive -- or actually let me start. 18· ·Did you know about any hold being put on potential 19· ·records responsive to the Public Records Act request in 20· ·this case?
21· · · ·A.· A hold?
22· · · ·Q.· A hold.· In other words --
23· · · ·A.· No.
24· · · ·Q.· -- were you -- did someone ask you to make sure 25· ·that any records that were responsive to the Public EXHIBIT 18

www.aptusCR.com I 866.999.8310
· · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA
· · · · · · · · · · ·COUNTY OF SAN DIEGO
· _______________________________________
· · · · · · · · · · · · · · · · · · · · ·)
· MICAELA POLANCO,· · · · · · · · · · · ·)
· · · · · · · · · · · · · · · · · · · · ·)
· · · · · · · · · · · Plaintiff,· · · · ·)
· · · · · · · · · · · · · · · · · · · · ·)· CASE NO.
· · · · · · · · ·vs.· · · · · · · · · · ·)· 25CU004193C · · · · · · · · · · · · · · · · · · · · ·)
· THE CITY OF NATIONAL CITY, et al.,· · ·)
· · · · · · · · · · · · · · · · · · · · ·)
· · · · · · · · · · · Defendants.· · · · )
· _______________________________________)
· · · · · · · · ·DEPOSITION OF MARTIN REEDER
· · · · · · · · · · SAN DIEGO, CALIFORNIA
· · · · · · · · · · · · MAY 13, 2025
· JOB NO.: 10161472
· REPORTED BY SUZANNE BRADLEY, CCRR, CSR NO. 13233
· · · ·A.· ·Well, that was a follow-up e-mail to a
· submittal, most likely an informal submittal because I · use the word "cursory," giving them some suggestions on · how to modify the project.
· · · ·Q.· ·And do you remember that you met with the
· Brikhos and Tom Morgan about this project that you
· discussed here in Exhibit 1 of Exhibit 4 sometime early · in 2024, earlier in January of 2024?
· · · ·A.· ·I met with them multiple times.· I don't know · if -- considering I wrote this e-mail, I'd imagine I was · in that meeting, but I can't be sure.
· · · ·Q.· ·Okay.· Is that the meeting that Josie tried to · get you to set up -- or withdraw that.
· · · · · · Is that January meeting the meeting that Josie, · you think, helped get you to set up?
· · · ·A.· ·I don't recall.
· · · ·Q.· ·Did she help you set up meetings with the
· Brikhos more than once?
· · · ·A.· ·Usually the conversation was "The Brikhos need · help.· We need to meet with them.· You need to meet with · them," something along those lines.· It wasn't so much a · meeting involving Josie or the mayor's office in that · case, more it was we needed to help them answer
· questions.
· · · ·Q.· ·Did you ever meet with the Brikhos where Josie EXHIBIT 19

www.aptusCR.com I 866.999.8310
·1· · · · · · SUPERIOR COURT OF THE STATE OF CALIFORNIA ·2· · · · · · · · · · · ·COUNTY OF SAN DIEGO
·3
·4· ·MICAELA POLANCO,
·5· · · · · · · · · Plaintiff,
·6· · · · · · ·vs.· · · · · · · · ·Case No.: 25CU004193C ·7
· · ·THE CITY OF NATIONAL CITY, et al.,
·8
· · · · · · · · · · Defendants.
·9
10 11
12 13· ·___________________________________________________ 14 15· · · · · · · · DEPOSITION OF JOSIE FLORES-CLARK
16· · · · · · · · · · · · · SAN DIEGO, CA
17· · · · · · · · · · · · · JUNE 25, 2025
18 19
20 21
22 23
24· ·REPORTED BY:· JULIE CLEMENTS, CSR NO. 11506
25· · · · · · · · ·JOB NO. 10167225
·1· · · · Q· · And did you find any?
·2· · · · A· · I don't believe I did.· Whatever I found I ·3· ·turned it in.
·4· · · · · · · ·(Ms. Severson returns to the room.)
·5· ·BY MR. AGUIRRE:
·6· · · · Q· · And who did you turn it in to?
·7· · · · A· · To the city clerk or the city attorney.
·8· · · · Q· · Is that ?
·9· · · · A· · If that's what's on my card, Michael. I
10· ·don't remember the number.
11· · · · Q· · Okay.· Well, let me show you the card and 12· ·see if that refreshes your recollection.
13· · · · A· · Okay.· Yes, that's it.
14· · · · Q· · Okay.· So your City cell phone is
15· · , correct?
16· · · · A· · Thank you.
17· · · · Q· · Is that correct?
18· · · · A· · Yes.· I just saw that.
19· · · · Q· · Okay.· And you checked that phone to see 20· ·if you had any responsive text messages?
21· · · · A· · Yes.
22· · · · Q· · And you're telling us that you don't
23· ·remember if you found any that were responsive?
24· · · · A· · I'm saying that I don't know what I turned 25· ·in.· If I found them, I turned them.
·1· · · · Q· · No.· I understand that.· I want you to
·2· ·feel free to give explanations.· You don't have to ·3· ·be -- but I'm asking if you can answer my question. ·4· · · · · · ·Do you remember finding any text messages ·5· ·on that were responsive to the public
·6· ·records request?
·7· · · · A· · I don't remember.
·8· · · · Q· · Okay.· Now, if I could invite your
·9· ·attention to just a few pages in, the letter -- or 10· ·the letter or the email that you received from the 11· ·city clerk?
12· · · · A· · What page is that?· They're not numbered 13· ·here.
14· · · · Q· · I can find it for you.
15· · · · A· · This one?
16· · · · Q· · Yes.
17· · · · · · ·Okay.· Now, we're looking at a email from 18· ·Shelley Chapel.· Do you know who that is?
19· · · · A· · I do.
20· · · · Q· · And this seems to be addressed to you and 21· ·the mayor, the city attorney and others.· Do you see 22· ·that?
23· · · · A· · Yes.
24· · · · Q· · And it's dated February the 7th of
25· ·2025?
·1· ·session?
·2· · · · A· · Well, that's -- that's where the mayor and ·3· ·council brief.· Yes.
·4· · · · Q· · Okay.
·5· · · · A· · It's called the large conference room.
·6· · · · Q· · Okay.· The large conference room.
·7· · · · · · ·And that -- that can be reserved?
·8· · · · A· · That can be reserve.
·9· · · · Q· · And you reserved it from time to time,
10· ·correct?
11· · · · A· · I have reserved that.
12· · · · Q· · And you reserved it for some meetings with 13· ·the Brikhos?
14· · · · A· · I don't believe that one was ever reserved 15· ·for the Brikhos.· I know that we met, but not
16· ·reserved, another -- other council meetings.
17· · · · Q· · What do you mean by "other council
18· ·meetings"?
19· · · · A· · In other council -- we have a council
20· ·meeting room in the mayor and council office.
21· · · · Q· · Okay.· Which you recall meeting there?
22· · · · A· · I believe we did meet there.
23· · · · Q· · With the Brikhos?
24· · · · A· · Yes.
25· · · · Q· · Okay.· Let's put that aside for a moment. ·1· ·That's how I searched.· IT does a more thorough
·2· ·search.· That's not what I do.
·3· · · · Q· · And what do you understand IT searches?
·4· · · · A· · I don't know their job.· I don't know, but ·5· ·it's them that goes in deep into our systems,
·6· ·anything that's been removed, anything deleted.
·7· ·What IT does, their expertise on that, I don't know. ·8· · · · Q· · Okay.· Is it your understanding that IT
·9· ·searches for calendar entries?
10· · · · A· · Yes.
11· · · · · · ·MR. PATE:· Objection.· Calls for
12· ·speculation.
13· · · · · · ·MR. AGUIRRE:· Okay.· Well --
14· · · · · · ·MR. PATE:· Based on the last answer.
15· · · · · · ·MR. AGUIRRE:· She got the answer.
16· ·BY MR. AGUIRRE:
17· · · · Q· · Give your lawyer a chance to get his
18· ·objections in.· Okay?
19· · · · · · ·MR. PATE:· That's fine.
20· · · · · · ·THE WITNESS:· Well, no, I understand what 21· ·they do, but I don't understand how they do it.· You 22· ·keep asking me how --
23· ·BY MR. AGUIRRE:
24· · · · Q· · Well --
25· · · · A· · I don't know.
·1· · · · Q· · Yeah.· Well -- okay.· But you're -- the
·2· ·reason I ask that is you described that they go in ·3· ·and they thoroughly do something, and that's what I ·4· ·was trying to get at because did you know -- have
·5· ·you heard that Ron Williams testified that the only ·6· ·thing he does is he used Barracuda to find emails? ·7· ·He doesn't do anything with calendars?
·8· · · · A· · I don't know.
·9· · · · Q· · Okay.· So you didn't -- you didn't hear
10· ·that?
11· · · · A· · No.
12· · · · Q· · Okay.· That's fair enough.· Okay.
13· · · · · · ·But what I'm trying to get to is that you 14· ·said that you turned in calendars?
15· · · · A· · Correct.
16· · · · Q· · How many of those -- let me start again. 17· · · · · · ·You found calendars for your meetings
18· ·related to the Brikhos and you turned those in?
19· · · · A· · Yes.
20· · · · Q· · How many of those did you turn in?
21· · · · A· · I don't know.
22· · · · Q· · And who did you turn them in to?
23· · · · A· · Shelley.· I think it was Shelley or the
24· ·city attorney, one or the other.
25· · · · Q· · So you don't know specifically who you
·1· ·turned in your calendar entries to?
·2· · · · A· · No.· Michael, we had so many PRAs every
·3· ·single day that came in.· I don't remember each one ·4· ·of them.
·5· · · · Q· · Well, the -- were you in -- in San Diego ·6· ·for the month of December of 2024?
·7· · · · A· · No.· I was not.
·8· · · · Q· · And do you recall when the first request ·9· ·was made?
10· · · · A· · No.
11· · · · Q· · Did you see -- we were talking earlier
12· ·about Exhibit 33 that the request was made in
13· ·February?
14· · · · A· · Yes.
15· · · · Q· · Okay.· And did you receive -- and then
16· ·your response, if I can invite your attention
17· ·back -- let me invite your attention back to the
18· ·first page of Exhibit 33, if I can, and you see it 19· ·was received by the City on February the 6th?
20· ·Do you see that on the upper left-hand -- left side? 21· · · · A· · Yes.
22· · · · Q· · And then if you look to the third page,
23· ·the date of release was April 28th.· Do you see
24· ·that?
25· · · · A· · Yes.
·1· ·meeting place for this April 22nd proposed meeting? ·2· · · · A· · I believe I did.
·3· · · · Q· · And where was that meeting place?
·4· · · · A· · I believe it was there at the council
·5· ·meeting room.
·6· · · · Q· · Okay.· And I think -- we really appreciate ·7· ·the clarification.
·8· · · · · · ·There's the large conference room, and
·9· ·then there is a what you -- what we're referring to 10· ·now as a "council," city council meeting room?
11· · · · A· · Correct.
12· · · · Q· · So your thought is that you arranged to
13· ·have the meeting in the city council meeting room
14· ·for this April 22nd meeting?
15· · · · A· · I believe so.
16· · · · Q· · Okay.· Did you send any responses to this 17· ·email from Mr. Brikho?
18· · · · A· · I would have sent a calendar date prior to 19· ·that.· I don't -- I don't recall.
20· · · · Q· · Okay.· But your custom and practice, you 21· ·think, would have been to send a calendar invite?
22· · · · A· · Correct.
23· · · · Q· · Okay.
24· · · · · · ·All right.· If we go to the next one, this 25· ·one is dated April 22nd again, so we'll skip over
·1· · · · Q· · And, again, is this -- are these emails
·2· ·emails that you've found and produced, or did
·3· ·someone else do that?
·4· · · · A· · IT.
·5· · · · Q· · Okay.· Now, you were kind enough to tell ·6· ·us that you -- you delivered what you did find to
·7· ·either the city clerk or the city attorney?
·8· · · · A· · Yes.
·9· · · · Q· · Okay.· And -- and when you say,
10· ·"delivered," how would you do that?· Was it
11· ·electronic?· Was it copied?
12· · · · A· · Copies.
13· · · · Q· · So you would print it out?
14· · · · A· · Yes.
15· · · · Q· · So if you found something that was
16· ·responsive, you would print it out and then would
17· ·you scan it in again?
18· · · · A· · No.
19· · · · Q· · So you delivered hard copies to either the 20· ·mayor or the city clerk?
21· · · · A· · City attorney or city clerk.
22· · · · Q· · I'm sorry.· Pardon me.
23· · · · · · ·You -- whatever it was that you found, you 24· ·printed it out and delivered the printed items to
25· ·either the city attorney or the city clerk, correct? ·1· · · · · · ·MR. AGUIRRE:· 37.· Thank you.
·2· · · · · · (Exhibit 37 marked for identification.)
·3· · · · · · ·(Ms. Severson returns to the room.)
·4· ·BY MR. AGUIRRE:
·5· · · · Q· · Now, where it says, "Josie," is that your ·6· ·handwriting in the upper right-hand side?
·7· · · · A· · Yes.
·8· · · · Q· · And when did you write that?
·9· · · · A· · I don't recall.
10· · · · Q· · Is this an example of a document that you 11· ·printed out and delivered to either the city clerk 12· ·or the --
13· · · · A· · Yes.
14· · · · Q· · -- the city clerk or the -- or the city
15· ·attorney?
16· · · · A· · Yes.
17· · · · Q· · And then on the bottom, did you put that 18· ·number on the bottom, the Number 1?
19· · · · A· · I don't recall.
20· · · · Q· · You don't know what that marking is?
21· · · · A· · I don't recall.
22· · · · Q· · Okay.· And where did you obtain
23· ·Exhibit 37?
24· · · · A· · My cell phone.
25· · · · Q· · And which one was that?
·1· ·BY MR. AGUIRRE:
·2· · · · Q· · Okay.· So, now, if you look at Exhibit 39, ·3· ·you'll see nine pages in those text messages that we ·4· ·talked about before.· Do you see that?
·5· · · · A· · Yes.
·6· · · · Q· · And this was the group chat?
·7· · · · A· · Yes.
·8· · · · Q· · When do you think you set up that group
·9· ·chat?
10· · · · A· · I don't recall.
11· · · · Q· · Now, you were with the mayor and the city 12· ·manager when they met with the Brikhos in January, 13· ·during that terrible rain storm we had, at their
14· ·service station, correct?
15· · · · A· · Yes.
16· · · · Q· · And Ben Martinez was there?
17· · · · A· · Yes.
18· · · · Q· · And did you calendar that, that meeting? 19· · · · A· · It would have to be me or Esther that
20· ·would have calendared.
21· · · · Q· · Did Esther calendar meetings for the
22· ·mayor?
23· · · · A· · No.
24· · · · Q· · She was Ben Martinez's calendar?
25· · · · A· · Yes.

EXHIBIT 20

www.aptusCR.com I 866.999.8310
· · · ·SUPERIOR COURT OF THE STATE OF CALIFORNIA
· · · · · · · · · ·COUNTY OF SAN DIEGO
MICAELA POLANCO,· · · · · · · · · · )
· · · · · · · · · · · · · · · · · · )
· · ·Plaintiff,· · · · · · · · · · ·)
· · · · · · · · · · · · · · · · · · )
· · · · ·vs.· · · · · · · · · · · · )· No. 25CU004193C
· · · · · · · · · · · · · · · · · · )
THE CITY OF NATIONAL CITY, et al.,· )
· · · · · · · · · · · · · · · · · · )
· · ·Defendants.· · · · · · · · · · )
__· · · · · · · · · · · · · · · · · )
· · · · · · · DEPOSITION OF SHELLEY CHAPEL
· · · · · · · · · · ·Gilmer, Texas
· · · · · · · · Wednesday, July 16, 2025
STENOGRAPHICALLY REPORTED BY:

SUSAN F. MAGEE, RPR, CCRR, CLR, CSR No. 11661
Job No. 10168389
· · ·Q.· And how does it pertain to your position?
· · ·A.· It's my responsibility.
· · ·Q.· To do what?
· · ·A.· To oversee the records program in the City of
National City.
· · ·Q.· In other words, would it be fair to say that
Exhibit 43 -- Exhibit 43 lays out the retention records rules for the City of National City and your
responsibility for enforcing those rules?
· · ·A.· Yes.
· · ·Q.· Okay.· Now, if we might invite your attention
to the second page of Exhibit 43.· And on the second
page there's something that says "Retention Schedules." · · · · ·Do you see that heading?
· · ·A.· This one right here?
· · ·Q.· Yes.
· · ·A.· Yes.
· · ·Q.· And what does that signify?
· · ·A.· That's an outline of the departments and their schedules that pertain specifically to records in their departments.
· · ·Q.· So is that a list of departments of the City of National City with a reference to various pages in
Exhibit 43 that establish their retention requirements? · · ·A.· Yes.
· · ·Q.· Okay.· And is there -- it says "City" -- I see one says "City Council."
· · · · ·Do you see that one?
· · ·A.· Yes.
· · ·Q.· Does that include the mayor?
· · ·A.· It's all -- yes.· It's all with the city
council.
· · ·Q.· So the mayor is considered a member of the city council?
· · ·A.· Yes.
· · ·Q.· Now, in your knowledge of Exhibit 43, is there someplace in Exhibit 43 that tells us what the retention schedule is for emails?
· · ·A.· I do not believe that the emails are updated in this retention schedule.· I don't think they were
included in this.
· · · · ·I can refer to it if you'd like, but --
· · ·Q.· Oh, yeah.· No, no, please.· Exactly.· That's
exactly what we want you to do.· Take us by the hand and walk us through this document because we're not familiar with it at all, and we're trying to make sure that we
get the benefit of your knowledge in helping us
understand it.
· · ·A.· So -- oops.· What did I do?
· · ·Q.· You just jumped up a little bit.· That's all.
· · ·A.· Yes.
· · ·Q.· Okay.· Then let's -- I hope you don't mind.

We're going to get on to the next exhibit then.
· · ·A.· That's fine.
· · ·Q.· Okay.· And as far as you know, Exhibit 43 is
the most recent version of the City of National City's
retention schedules; is that true?
· · ·A.· Yes.
· · ·Q.· Somebody had said to us that they thought
sometime in May there might have been a revision or an
addition -- one or the other or perhaps both -- to the
National City retention record policies, and that had
been taken up at the city council meeting.
· · · · ·But as far as you know, that's incorrect; true? · · ·A.· That is incorrect.
· · · · ·MR. AGUIRRE:· Okay.· So let's go on now to what we're going to mark as Exhibit 44.
· · · · ·(Exhibit 44, October 2024 City Clerks
Association of California Municipal Clerk Handbook,
marked for identification.)
BY MR. AGUIRRE:
· · ·Q.· Do you see -- it's CCAC, and it's a Municipal
Clerk Handbook of the California Clerks Association of
California?
· · · · ·I'm sorry, the City Clerks Association of
not a good question.
· · · · ·In the context of a public records request
response, have you established a protocol for how City
of National City employees should provide you responsive text messages?
· · ·A.· There's not a specific protocol per se.
· · ·Q.· Have -- go ahead.· I'm sorry.
· · ·A.· They provide it to me via email or, you know,
if they are -- if they print them out they can provide
them to me that way.· I don't have a preference.
· · ·Q.· Well, do you have a policy?· In other words, do you have a policy that you have implemented laying out
how text messages are to be -- that are responsive to
Public Records Act requests are to be provided to you?
· · ·A.· No.· Not specifically text messages, no.
· · ·Q.· Have you established a protocol for how text
messages relating to the business of the City of
National City that fall within public records request,
how their personal phones are to be reviewed to see if
there's any text messages on their personal phone that
are responsive?
· · ·A.· So in general when I receive a public records
request requesting text messages, I will send an email
out to that staff member, asking them to please check
their personal devices, including their cell phone,
iPad, tablet, etcetera.
· · ·Q.· Okay.· So let's actually -- you did a good job of helping me there.
· · · · ·So we have -- with Ms. Polanco's public records request, we have staff members like David Welch and
Martin Reeder, and we have officials like the City
Manager Ben Martinez and yourself.
· · · · ·And then we have elected officials like the
mayor and the mayor's office and his assistant,
Josie Flores-Clark.
· · · · ·I just say that to you just to give you a
little background before I ask my next question.
· · · · ·Let me ask, have you established a protocol for how staff members are to provide you text messages
responsive to public records requests?
· · · · ·MS. CAMERON:· I think she's answered that
question.· She can answer again.
· · · · ·MR. AGUIRRE:· Thank you.
· · · · ·BY MR. AGUIRRE:
· · ·Q.· Go ahead.
· · ·A.· So as I responded earlier, that there is not a protocol or a procedure written out.
· · ·Q.· Okay.· All right.· Now, with regard to elected officials, have you established a procedure or a
protocol for how elected officials are to provide you
text messages responsive to public records requests?
· · ·A.· As I mentioned earlier -- I responded to this
question.· I sent an email requesting --
· · ·Q.· Okay.
· · ·A.· -- that information.
· · ·Q.· Okay.· It may be a little confusing.· I'm
trying to establish a record, and you were kind enough
to say something that made me realize you have staff,
and then you have officials, executive-level officials, and then you also have electeds.· So I'm just trying to make sure I cover every base.· So it may sound
repetitive, but if you listen to my question, it's
actually a little bit different.
· · · · ·So let me go back and say, with regard to
elected officials, have you established a policy for how they're to provide you text messages responsive to a
public records request?
· · ·A.· I do not have a policy or procedure written
out.· I do send them an email requesting that they check their personal devices.
· · ·Q.· Now, does the City of National City have a
policy of how elected officials are to provide you text messages responsive to Public Records Act requests?
· · ·A.· No.
· · ·Q.· Okay.· And then the same is true with staff and with city officials like the city manager?· Same
response?
· · ·A.· Same response.· The only thing that's different with staff is that they receive an email through our
NextRequest public records software.· That goes directly to them.· And it's basically a copy of the request,
so . . .
· · ·Q.· And how is it determined which staff members
receive that, receive those?
· · ·A.· It's based on the content of the request.
· · ·Q.· And who makes that decision?
· · ·A.· I do.
· · ·Q.· So is it fair to say that, when you receive a
NextRequest under the Public Records Act, you look at
what is being requested, and you use the NextRequest
system -- you forward using the NextRequest system to
staff members that you think may have responsive
records?
· · ·A.· Yes.· It's two departments.· So staff members
are in groups of -- by department.
· · · · ·MR. AGUIRRE:· Okay.· Now, let's go on to what's going to be -- it says Request 24-688.· And let's go to what has been -- if you can go to Request 24-688, it has an Exhibit 1 on it, but we're going to call this for our purposes today Exhibit 46.
· · · · · · ·"QUESTION:· And -- and when you say
· · · · ·'delivered,' how would you do that?· Was it
· · · · ·electronic?· Was it copied?
· · · · · · ·"ANSWER:· Copies."
· · · · ·So did Josie Flores-Clark give you copies of
documents?
· · ·A.· Not to my knowledge.· Not paper copies.
· · ·Q.· · · "QUESTION:· So if you found something that · · · · ·was responsive, you would print it out and then · · · · ·would you scan it in again?
· · · · · · ·"ANSWER:· No.
· · · · · · ·"QUESTION:· So you delivered hard copies to · · · · ·either the mayor or the city clerk?
· · · · · · ·"ANSWER:· City attorney or city clerk."
· · · · ·So did Ms. Clark ever deliver to you paper
copies of responsive records to the -- Ms. Polanco's
public records request?
· · ·A.· Not to my knowledge.
· · ·Q.· And then at the bottom of page 43 it says,
· · · · · · ·"QUESTION:· You -- whatever it was that you · · · · ·found, you printed it out and delivered the
· · · · ·printed items to either the city attorney or
· · · · ·the city clerk; correct?"
· · · · ·And then on the next page, page 44:
· · · · · · ·"ANSWER:· Yes.
· · · · · · ·"ANSWER:· Handed them to the city attorney. · · · · · · ·"QUESTION:· Do you -- do you remember it
· · · · ·was the city attorney, not the clerk but it was · · · · ·the city attorney?
· · · · · · ·"ANSWER:· I don't remember.
· · · · · · ·"QUESTION:· Was it one or the other?
· · · · · · ·"ANSWER:· Yes."
· · · · ·Do you remember receiving any calendar entries for Mayor Morrison responsive to Ms. Polanco's public
records request that were in a paper format from
Ms. Josie Clark?
· · ·A.· Not that I recall.
· · ·Q.· And on page 98, line 13.
· · ·A.· Page 90?
· · ·Q.· Page 98, line 13.
· · ·A.· Okay.
· · ·Q.· · · "QUESTION:· And -- and you said you did
· · · · ·find some calendars for the mayor, and that's
· · · · ·what you turned in to the city attorney or
· · · · ·the city clerk?
· · · · · · ·"ANSWER:· Yes."
· · · · ·And again, the question to you is, do you
remember that happening?
· · ·A.· I don't recall receiving any printed out
documents.
· · ·Q.· Did you give training on how to respond to
public records requests to Mayor Morrison?
· · ·A.· He does not have access to NextRequest.
· · ·Q.· Right.· But did you give any training to Mayor Morrison about how to respond to public records request? · · ·A.· No training, no.
· · ·Q.· Did you give any training to Josie Flores-Clark on how to respond to public records requests?
· · ·A.· No training.
· · ·Q.· Did you give any training to Martin Reeder
about how to respond to public records requests?
· · ·A.· No.
· · ·Q.· Any training to Carlos Aguirre on how to
respond to public records requests?
· · ·A.· No.
· · ·Q.· Any training to Josie Flores-Clark on how to
respond to public records requests?
· · ·A.· No.
· · ·Q.· And David Welch, I asked him:
· · · · · · ·"QUESTION:· Did you use the Public Records · · · · ·Act system at National City in responding to
· · · · ·the public records requests in this case?
· · · · · · ·ANSWER:· No.· I created folders for emails, · · · · ·and I informed our executive secretary of where · · · · ·to find the documents.
you.· So we did not see any calendars -- we didn't see
any invitation invites related to the Orange Street
sewer water road project.· We didn't see any calendared meetings.· We'll stop right there.
· · · · ·Did you provide any copies of Outlook
calendared meetings for this -- Ms. Polanco's public
records request?
· · ·A.· I don't recall.
· · · · ·MR. AGUIRRE:· Okay.· We can take a two-minute
break, make sure we didn't have anything else, and we'll either come back and ask some more questions or call it a day.
· · · · ·(Recess taken from 2:19 p.m. to 2:32 p.m.)
· · · · ·BY MR. AGUIRRE:
· · ·Q.· So when it comes to electrically stored --
electric-stored information, what is your understanding of the City's rules about how that electric-stored
information is supposed to be preserved when it's on a
City cell phone or on an individual cell phone that
involves City business?
· · ·A.· It's not included in our retention schedule
currently.
· · ·Q.· And is there any reason you can think of why
it's not?
· · ·A.· I wasn't with the City at the time.
· · ·Q.· Have you had training in the Public Records
Act?
· · ·A.· Yes, I have.
· · ·Q.· Okay.· What does that consist of?
· · ·A.· It's over the last 24 years.· I've attended
classes through the City Clerks Association.
· · ·Q.· So let me ask you, are you familiar with
Article 1, Section 3, of the California State
Constitution?
· · ·A.· I don't know exactly what that is.· If you
can --
· · ·Q.· Okay.· That's okay.· You don't have to -- you
don't have to know.· Only if you did know.
· · · · ·Yeah, no.· I think, you know, I think that
what -- we'll terminate the deposition, but I'm -- I'm
just -- I want to ask just a little bit more about, you have an understanding that the public records request
includes ESI; correct?
· · ·A.· Yes.
· · · · ·MS. CAMERON:· What does that mean?
· · · · ·MR. AGUIRRE:· Electronically stored
information.
· · · · ·THE WITNESS:· Yes.
· · · · ·BY MR. AGUIRRE:
· · ·Q.· In other words, in the Public Records Act they if there was some thought along the way that, by not
including ESI on cell phones, that that would limit
public records being produced that were covered by the
Public Records Act that would result in those records
not being known about or just not produced.
· · · · ·Was there any discussion about that?
· · · · ·MS. CAMERON:· Objection.· I'm having a hard
time following what this question is.· Maybe the witness is too.

BY MR. AGUIRRE:
· · ·Q.· Well, do you understand what I'm saying?· What I'm saying is this.
· · · · ·Most of the -- much of the work of today's
governmental officials is done through cell phones and
text messages, and that's something that's been known to National City for a long time.· But then there's no ESI policy with regard to cell phones, the contents of cell phones with regard to text messages or emails.
· · · · ·So I'm just asking, has that issue come up for a discussion within the City of National City?
· · · · ·THE WITNESS:· With me personally, no.
· · · · ·BY MR. AGUIRRE:
· · ·Q.· Well, do you personally have any knowledge of
it?
· · ·A.· No.

EXHIBIT 21

Christina M. Cameron
Direct: (619) 354-5024
[email protected]
February 13, 2025

VIA EMAIL ONLY

Maria C. Severson, Esq.

AGUIRRE & SEVERSON, LLP
501 West Broadway, Ste. 1050
San Diego, CA 92101
[email protected]

Re: Micaela Polanco v. The City of National City
SDSC Case No.: 25CU004193C
Response to Correspondence Dated February 6, 2025 & Consent to E-Service Dear Ms. Severson:

As you are aware, this firm represents the City of National City (“City”) in the abovereferenced matter. This correspondence serves as a response to the assertions and statements in your February 6, 2025 correspondence to me, Mayor Ron Morrison and City Attorney Barry Schultz, as well as to your e-mail to me of the same date proposing that the parties agree to electronic service in this matter.

City Amenable to Offer to Mediate
In your letter, you claim that on February 6, 2025, I informed you the City would not accept your offer to resolve this matter by mediation. I apologize if there was any confusion or misunderstanding when I spoke with you or your colleague, Mike Aguirre, last week, but I never stated the City refused mediation. Rather, when I spoke with you on February 6, I informed you that I had made no representation during my earlier conversation of the same date with Mr.

Aguirre regarding the City participating in mediation since I had not yet had an opportunity to discuss mediation with my client. I did, however, tell you that in my experience, most public entities are willing to mediate at the appropriate point and time in litigation.

Following our February 6, 2025, conversation, I discussed the possibility of mediation with the City and can now confirm that the City is amenable to participating in mediation in this matter when it is appropriate to do so. The City proposes that mediation be delayed until after the City has produced all responsive, non-privileged/non-exempt records relating to the multiple California Public Records Act (“CPRA”) requests filed by your client, Micaela Polanco, as well as those filed by you and Mr. Aguirre on behalf of Ms. Polanco beyond Request No. 24-679 that is the subject of the Complaint. This includes, but is not limited to, those CPRA requests identified in the City’s NextRequest portal as: Request Nos. 24-680, 24-688, 24-697, 24-721, 24-723, 25-4, 25-6, 25-17, 25-51, and the latest request 25-92, which is discussed in more detail, below.

DPMC I Devaney Pate
Morns&CameronLLP
Devaney Pate Morris & Cameron LLP
Maria C. Severson, Esq.

AGUIRRE & SEVERSON, LLP
February 13, 2025

Micaela Polanco v. The City of National City
Specifically, I recommend mediation occur after the City has responded to a broader range of CPRA requests than explicitly referenced in the Complaint, based on your representation that the subsequent CPRA requests were intended as a follow-up to, or to further clarify, the initial Request No. 24-679. By doing this, the hope would be to narrow the scope of records still in dispute between the parties at the time of mediation. Finally, as our firm was only recently retained to represent the City in this matter and we are getting up to speed, we also believe a deferred mediation is warranted to allow our office sufficient time to review all of the CPRA requests, together with the records released by the City. All of this said, we are flexible as to the specific timing of mediation.

Premature Service of Deposition Notices
Your February 6, 2025 letter also included notices of depositions to Mayor Ron Morrison, City Manager Ben Martinez, and the Executive Assistant to the Mayor, Josie Flores Clark, which you stated were being served with your letter. The City objects to these deposition notices as premature in response to California Code of Civil Procedure (“CCP”) Section 2025.210(b), which provides that a plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on any defendant. [Emphasis added.] (See, CCP § 2025.210.) The City was served with the summons in this matter on January 27, 2025; 20 days from this date is February 16, 2025. Moreover, you did not provide notice that the Court granted leave to serve a deposition notice on an earlier date than required by CCP Section 2025.210(b). Accordingly, the deposition notices attached to your February 6, 2025 correspondence are premature. As such, this correspondence serves as a written objection to the deposition notices. Finally, given that the City is amenable to participating in mediation, the City requests that any depositions be deferred pending the conclusion of mediation or some other form of alternative dispute resolution of this matter.

No Communication Regarding Litigation with Represented City Officials/Staff Members We are aware that your firm has and continues to communicate with represented City parties, including, for example, Mayor Morrison who was copied in your February 6, 2025 correspondence. This serves as a reminder that pursuant to Rule 4.2 under the California Bar Association’s Rules of Professional Conduct, opposing counsel is prohibited from directly or indirectly communicating with anyone at the City who is represented by counsel regarding the subject of this litigation. Although an exception applies to Rule 4.2, which allows members of the public to engage with City staff and public officials in matters generally relating to public business, including the right to petition for redress of grievances and the right to open government access, any direct or indirect communications relating to the subject matter of the litigation must cease. In the future, please do not direct or copy any City staff member or public Devaney Pate Morris & Cameron LLP
Maria C. Severson, Esq.

AGUIRRE & SEVERSON, LLP
February 13, 2025

Micaela Polanco v. The City of National City
official in correspondence or communications relating to the litigation, other than members of the City Attorney’s Office.

City’s Response to New CPRA Request No. 25-92
Your letter also includes a copy of a CPRA request you submitted to the City on February 6, 2025, which has been identified in the City’s NextRequest portal as Request No. 25-92. In your request, you seek 10 separate categories of records, numbered 1 through 10, each relating to a proposed project located at 2311 Sweetwater Road and 3320-3336 Orange Street, and identified as Case No. 2024-08 CUP ZV. You further demand, a “timely production of public records sought in [Request No. 25-92] by February 19, 2025.” As with all CPRA requests it receives, the City will timely respond to your request via the NextRequest portal in compliance with the CPRA.

Consent to Electronic Service
In your February 6, 2025, e-mail to me, you proposed that the parties agree to electronic service in this matter. We agree to accept electronic service at the following addresses:
 Christina M. Cameron, Esq.: [email protected]
 Wendy L. House, Esq.: [email protected]
 Michelle Lee: [email protected]
 Angela Sullivan: [email protected]
Please confirm whether you will provide notice to the Court regarding the parties’ acceptance of electronic service in this matter.

Should you have any questions regarding the above information, please do not hesitate to contact me.

Very truly yours,

DEVANEY PATE MORRIS & CAMERON LLP
Partner
CMC/mcl
Devaney Pate Morris & Cameron LLP
Maria C. Severson, Esq.

AGUIRRE & SEVERSON, LLP
February 13, 2025

Micaela Polanco v. The City of National City
cc: Via Email
Barry J. Schultz, Esq., City Attorney, City of National City Michael J. Aguirre, Esq. [email protected]
Alexander M. Gutterud, Esq. [email protected]
Maria Byrnes [email protected]
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PROOF OF SERVICE
Micaela Polanco v. The City of National City, et al.

SUPERIOR COURT OF CALIFORNIA – COUNTY OF SAN DIEGO
Case No.: 24CU004193C
I, the undersigned, declare: That I am, and was at the time of service of the papers herein referred to, over the age of eighteen years, and not a party to the action; and I am employed in the County of San Diego, California. My business address is 402 West Broadway, Ste. 1300, San Diego, California 92101-8700.

On February 13, 2025, at San Diego, California, I served the following document(s) described as: CORRESPONDENCE TO MARIA C. SEVERSON DATED 2/13/25 on the parties in said action by placing a true copy thereof in a separate sealed envelope for each addressee named hereafter, addressed to each such addressee respectively as stated on the attached service list, which reflects the address last given by each such addressee on any document filed in the action and served on this office.

SEE ATTACHED SERVICE LIST
☐ BY E-FILE/E-SERVICE: by submitting an electronic version of the document(s) TO One Legal, LLC, through the user interface at www.onelegal.com. the act of electronic filing is evidence that the party agrees to accept service at the electronic service address the party has furnished to the court under Rule 2.256(a)(4). A true and correct copy of the e-filed document(s) is attached.
☒ BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the document(s) to be sent from e-mail address [email protected] to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.
☒ STATE COURT: I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on February 13, 2025, at San Diego, California.

Michelle c. Lee
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4853-9637-0356, v. 1

SERVICE LIST
Michael J. Aguirre, Esq.

Maria C. Severson, Esq.

Alexander M. Gutterud, Esq.

AGUIRRE & SEVERSON, LLP
501 West Broadway, Suite 1050
San Diego, CA 92101
Telephone: (619) 876-5364
[email protected]
[email protected]
[email protected]
[email protected]
Attorneys for PLAINTIFF
EXHIBIT 22

Christina M. Cameron
Direct: (619) 354-5024
[email protected]
April 11, 2025

VIA EMAIL ONLY

Michael J. Aguirre, Esq.

AGUIRRE & SEVERSON, LLP
501 West Broadway, Ste. 1050
San Diego, CA 92101
[email protected]

Re: Response to Correspondence Received April 5, 2025
Dear Mr. Aguirre:

This letter responds to your correspondence dated February 6, 2025, but that was sent and received via email on April 5, 2025.

Your letter “seeks to address public records requested of, but not provided by, the City of National City”. Specifically, you demand production of records you allege were not produced by the City of National City (“City”) in response to multiple California Public Records Act (“CPRA”) requests filed by your client, Micaela Polanco, as well as those filed by you and your colleague, Maria Severson, on behalf of Ms. Polanco. This includes those CPRA requests identified in the City’s NextRequest portal as: Request Nos. 24-688 (12/9/24); 25-6 (1/6/25); 25-17 (1/10/25); 25- 111 (2/18/25); 25-203 (3/25/25); and 25-205 (3/25/25). In your letter, you further claim that during the April 1, 2025, City Council meeting, Mayor Morrison, City Attorney Schultz, and planning staff “admitted to the existence of records” responsive to the foregoing CPRA requests, “which the record shows have not been produced to us.” Lastly, you assert that unless the City provides records responsive to the foregoing CPRA requests, another CPRA enforcement action will be filed against the City on April 15, 2025, in addition to the pending action filed by Ms.

Polanco against the City regarding CPRA Request No. 24-679 (SDSC Case No.: 25CU004193C).

For each of the above-referenced CPRA requests, the City undertook a diligent search for records based on the descriptions provided and timely produced all responsive, nonexempt/non-privileged records in its possession. Nevertheless, in response to your repeated insistence that responsive records remain in the City’s possession that have not been produced, the City has undertaken additional searches in an effort to identify any record or records it may inadvertently have failed to identify in those initial searches. In this regard, the City has identified one additional record, an email from Mr. Birkho to Martin Reeder dated December 10, 2024, DPMC I Devaney Pate
Morns&CameronLLP
Devaney Pate Morris & Cameron LLP
Michael J. Aguirre, Esq.

AGUIRRE & SEVERSON, LLP
April 11, 2025

that is responsive to CPRA Request Nos.: 25-17 & 25-6.1 Since City hall is closed today, I am attaching a copy of that email to this letter. The email will be posted to those Requests early next week.

As a reminder, to the extent responsive disclosable records existed, the City produced those under the following NextRequest links:
 Request No. 24-688 (CPRA Request Submitted on 12/9/24) o https://cityofnationalcityca.nextrequest.com/requests/24-688  Request No. 25-6 (CPRA Request Submitted on 1/6/25)
o https://cityofnationalcityca.nextrequest.com/requests/25-6  Request No. 25-17 (CPRA Request Submitted on 1/10/25) o https://cityofnationalcityca.nextrequest.com/requests/25-17  Request No. 25-111 (CPRA Request Submitted on 2/18/25) o https://cityofnationalcityca.nextrequest.com/requests/25-111  Request No. 25-203 (CPRA Request Submitted on 3/25/25) o https://cityofnationalcityca.nextrequest.com/requests/25-203  Request No. 25-205 (CPRA Request Submitted on 3/25/25) o https://cityofnationalcityca.nextrequest.com/requests/25-205 Finally, the City disputes your contention that Mayor Morrison, City Attorney Schultz and/or any staff member from the City Planning Division stated records responsive to the foregoing CPRA requests exist, which have not yet been produced by the City – either during the April 1, 2025, City Council meeting, or at any other time. The City steadfastly reiterates its position that any responsive, non-exempt/non-privileged records in its possession relating to each of the foregoing CPRA requests have already been produced by the City.

Should you have any questions regarding the above information, please do not hesitate to contact me.

Very truly yours,

DEVANEY PATE MORRIS & CAMERON LLP
Christina M. Cameron
Partner
CMC/mcl
Enclosure
1 Request Nos.: 25-4 and 25-6 made on the same date are duplicative. Responsive records have been produced under Request No. 25-4.

Devaney Pate Morris & Cameron LLP
Michael J. Aguirre, Esq.

AGUIRRE & SEVERSON, LLP
April 11, 2025

cc: Via Email
Barry J. Schultz, Esq., City Attorney, City of National City Maria C. Severson, Esq., [email protected]
Alexander M. Gutterud, Esq., [email protected]
Maria Byrnes, [email protected]
From: Martin Reeder
To: Barry Schultz; Ashlin Lutes
Subject: FW: Sweetwater Gas Station - withdrawal application Martin Reeder | AICP
Assistant Community Development Director
Community Development Department
City of National City
1243 National City Blvd., National City, CA 91950
T: 619.336.4313 ❘ [email protected]
Website ❘ Facebook ❘ Instagram ❘ Twitter ❘ LinkedIn
From: Joseph Brikho [mailto
Sent: Tuesday, December 10, 2024 1:55 PM
To: Martin Reeder <[email protected]>
Cc: Eddy Brikho Carlos Aguirre <[email protected]>; Michael Kinoshita <[email protected]>; Erik Faucett <[email protected]>; Morgan Thomas <[email protected]>
Subject: Sweetwater Gas Station - withdrawal application CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

Martian, how are you? We would like to withdraw our current application for CUP on the development at the corner of Sweetwater and Orange. We will place it on hold for now to revise the project and come back to meet with the City staff to see how we can find a project that will work for that intersection.

Thank everybody at the city for all their hard work on this project and we look forward to finding a path forward to get something built there.

Thank you,
Joseph Brikho
License#01434636
On Wed, Nov 27, 2024 at 1:58 PM, Thomas Morgan
<[email protected]> wrote:

Received.

Comments shall be forthcoming from the Applicant.
-
■
Tom
L. Thomas Morgan, CCIM
Retail Specialist - DUHS Commercial
3830 Ray Street
San Diego, CA 92104
[email protected]
On Nov 27, 2024, at 12:31 PM, David Welch <[email protected]> wrote:

Good Afternoon,
Our Planning Commission agenda for Monday night and complete packet is published online. This can be accessed at the following link:
https://www.nationalcityca.gov/Home/Components/Calendar/Event/15596/786? curm=12&cury=2024#!/. The staff report and draft resolution are found in the packet.

I made a few modifications to the conditions of approval based on our conversation yesterday. Specifically, it was confirmed by the Engineering and Fire Departments that the references to underground utilities were for on-site improvements (conditions 29 and 37).

However, it was also decided that modifications to the size of containers for the sale of distilled spirits and the use of gasoline sales for condition 72 would require approval by our City Council since they would be policy changes from the previously approval Council Policy 707. I have a Notice of Decision currently planned as an item for the City Council meeting on December 10th. Should there be a public hearing at City Council, the next meeting date would be January 21st.

Thank you,
David Welch
Associate Planner
City of National City
1243 National City Boulevard
National City, CA 91950
Office: (619) 336-4224
Fax: (619) 336-4321
<image001.png>
City Hall Hours: M-Th 7a-6p
EXHIBIT 23

Outlook
RE: Response to April 11, 2025 Letter
From Christina Cameron <[email protected]>
Date Wed 4/23/2025 3:54 PM
To Alexander Gutterud <[email protected]>
Cc Maria Severson <[email protected]>; Michael Aguirre <[email protected]>; Wendy House <[email protected]>
Mr. Gutterud,
Thank you for your patience. Regarding your questions inquiring about whether any records were withheld, the answer is no; there were no records withheld by the City relating to the CPRA requests mentioned in our April 11, 2025, correspondence.

With respect to your question about the record that was enclosed with our April 11, 2025 correspondence, a copy of the initial responsive communication between Mr. Brikho and Mr. Reeder has been uploaded into the City’s NextRequest portal under Request Nos. 25-4 (https://cityofnationalcityca.nextrequest.com/requests/25-4) and 25-17 (https://cityofnationalcityca.nextrequest.com/requests/25-17). The version that was attached to our April 11, 2025, correspondence was forwarded by Mr. Reeder to Attorneys Schultz and Lutes, and that was the only version of the communication that we had access to when we sent the April 11, 2025, correspondence. Since City Hall was closed when the April 11, 2025, correspondence was sent to your firm, and in the interest of being timely, we opted to enclose a redacted version of the record that was forwarded to Attorneys Schultz and Lutes. However, only the portion of that record responsive to Request Nos. 25-4 and 25-17 has been provided to your firm; any additional information included in the forwarded communication is both: (i) non-responsive to Request Nos. 25-4 and 25-17 and (ii) attorney-client privileged information, which has been redacted.

Regards,
Christina Cameron, Partner
Devaney Pate Morris & Cameron, LLP
Direct: 619-354-5024
This email and its attachment(s) are for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply mail and destroy all copies of the original message. To reply to our email administrator directly, send an email to: [email protected] From: Alexander Gutterud <[email protected]>
Sent: Wednesday, April 23, 2025 9:21 AM
To: Christina Cameron <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: Re: Response to April 11, 2025 Letter
Dear Ms. Cameron,
I am following up again for a fifth time to get clarification on the following points:
(1) Are any documents being withheld based on attorney-client privilege; •
(2) Are any documents being withheld based on an exemption, and if so, on what grounds; and (3) Would you please provide an unexpurgated copy of the December 10, 2024, email from Joseph Brikho to Martin Reeder? The version we have, please see attachment, omits the date of the email being sent from Martin Reeder to City Attorney Barry Schultz. This document was sent to the City Attorney by Martin Reeder, appearing to have been made in attorney-client privilege. Was this document produced inadvertently?
Thank you.

Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
From: Alexander Gutterud <[email protected]>
Sent: Wednesday, April 16, 2025 2:37 PM
To: Christina Cameron <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: Re: Response to April 11, 2025 Letter
Dear Ms. Cameron,
Thank you for your prompt response. We will await your written answers to the following questions:
(1) Are any documents being withheld based on attorney-client privilege; (2) Are any documents being withheld based on an exemption, and if so, on what grounds; and (3) Would you please provide an unexpurgated copy of the December 10, 2024, email from Joseph Brikho to Martin Reeder? The version we have, please see attachment, omits the date of the email being sent from Martin Reeder to City Attorney Barry Schultz. This document was sent to the City Attorney by Martin Reeder, appearing to have been made in attorney-client privilege. Was this document produced inadvertently?
Thank you again for your promptness on this matter.

Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
From: Christina Cameron <[email protected]>
Sent: Wednesday, April 16, 2025 2:23 PM
To: Alexander Gutterud <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: RE: Response to April 11, 2025 Letter
Thank you for reaching out. As I indicated earlier, we will be responding to your questions in writing.

Regards,
Christina Cameron, Partner
Devaney Pate Morris & Cameron, LLP
Direct: 619-354-5024
This email and its attachment(s) are for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply mail and destroy all copies of the original message. To reply to our email administrator directly, send an email to: [email protected] From: Alexander Gutterud <[email protected]>
Sent: Wednesday, April 16, 2025 1:09 PM
To: Christina Cameron <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: Re: Response to April 11, 2025 Letter
Dear Ms. Cameron,
I am following up again for a third time to get clarification on the following points:
(1) Are any documents being withheld based on attorney-client privilege; (2) Are any documents being withheld based on an exemption, and if so, what is the reason; and (3) Would you please provide an unexpurgated copy of the December 10, 2024, email from Joseph Brikho to Martin Reeder? The version we have, please see attachment, omits the date of the email being sent to City Attorney Barry Schultz.

Thank you.
-- ---- -----------
Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
From: Alexander Gutterud <[email protected]>
Sent: Tuesday, April 15, 2025 1:24 PM
To: Christina Cameron <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: Re: Response to April 11, 2025 Letter
Dear Ms. Cameron,
We would appreciate conversing with you today prior to 3:00 pm to get clarification on the following points: (1) are any documents being withheld based on attorney-client privilege; (2) are any documents being withheld based on an exemption; (3) would you please provide an unexpurgated copy of the December 10, 2024 email from Joseph Brikho to Martin Reeder. The version we have, please see attachment, omits the date of the email being sent to City Attorney Barry Schultz. Thank you.

Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
From: Christina Cameron <[email protected]>
Sent: Tuesday, April 15, 2025 9:07 AM
To: Alexander Gutterud <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: RE: Response to April 11, 2025 Letter
I am in receipt of your email below. I know you left a few voice mail messages for me yesterday. I do not anticipate having time for a phone call this week. However, we will respond to your email in due course.

Regards,
Christina Cameron, Partner
Devaney Pate Morris & Cameron, LLP
Direct: 619-354-5024
This email and its attachment(s) are for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply mail and destroy all copies of the original message. To reply to our email administrator directly, send an email to: [email protected] From: Alexander Gutterud <[email protected]>
Sent: Monday, April 14, 2025 1:21 PM
To: Christina Cameron <[email protected]>
Cc: Maria Severson <[email protected]>; Michael Aguirre <[email protected]> Subject: Response to April 11, 2025 Letter
Dear Ms. Cameron,
In your April 11, 2025, letter you indicated National City was not going to produce records if they were "exempt/privileged."
Were any such documents withheld? And if so, can you provide us: (1) a general description of the records withheld; (2) how many records were withheld; and (3) the identity of the person who made the decision the records should be withheld. If the records are exempt due to attorney-client privilege, please so indicate.

Also, the document you sent on Friday, the email sent to Barry Schultz from Martin Reeder had the date redacted. Are you claiming attorney-client privilege for any documents that were drafted any time in 2024 because they were provided to Barry Schultz after our Public Records Request was submitted?
Best regards,
Alexander Gutterud, Esq.

Associate Attorney

AGUIRRE & SEVERSON, LLP
501 W Broadway, Ste. 1050
San Diego, CA 92101
Office (619) 876-5364, Ext. 3
[email protected]
EXHIBIT 24

MUNICIPAL CLERK HANDBOOK
Municipal Clerk Handbook Committee
October 2024
City Clerks Association of California
Page | 174
CHAPTER 16. RECORDS MANAGEMENT
Secretary of State Local Government Records Management Guidelines The People’s Business: A Guide to the California Public Records Act is available from the League of California Cities.

The National Archives Federal Records Management Resources Association of Records Managers and Administrators
Association of Information and Image Management
California Code of Regulations
Code of Federal Regulations
Section 1 - RECORDS MANAGEMENT GENERAL
Records management is the systematic control over the creation, acquisition, processing, use, protection, storage, and final disposition of all recorded information required by a municipal government to conduct its business effectively. It involves assembling and managing the correct information: (1) in the proper form, (2) at the right time and place, and (3) available for use by the appropriate persons. Thus, it is a dynamic system for managing records in an efficient and least costly manner.

The primary concern is the efficient, effective, and economical management of information. Records management is more than retention schedules and the disposition of records; records management also encompasses all the record-keeping requirements that allow an organization to establish and maintain control over information flow and administrative operations. Records management seeks to control and manage records through the entirety of their life cycle, from creation to final disposition. In today’s litigioussociety, records management is more important than ever, but unfortunately, it isstill overlooked and underfunded at all levels of government. In court, an astute attorney can discredit an agency in the eyes of a judge or jury by attacking the way the agency handles its records. The fact that the records may refute or support a particular position is obscured by the attack on how the agency accounts for and handles those records. The agency’s legal position in the litigation may be influenced by how well or how poorly they comply with accepted records management practices.

A sound records management program improves customer service, increases staff efficiency, better allocates scarce resources, and provides a legal foundation for how an agency conducts its daily mission.

It helps identify and justify opportunities for new technology. Microfilm, optical disk, workflow, e-mail, bar code, data imaging, and other related technologies cannot be adequately evaluated and cost-justified without a reliable records management program. Other benefits of effective records management include:
• Space Savings.
• Reduced expenditures for new filing equipment.
• Increased efficiency in information retrieval.
• Compliance with legal, administrative, and fiscal retention requirements. • Identification and protection of vital records.
• Control over the creation of new records.

Page | 175
• Identification of records with research value.
• Identification of records with historical value.

Records serve as administrative and legal tools and are created in the course of, and as a byproduct of, the public officer’s performance of duty. Records are not created for historical purposes but create history through their existence.

In California, the Clerk is designated as “the keeper of the record.” Whether the records are maintained centrally or de-centrally in departments, the records management program should be under either direct or indirect supervision of the Clerk. An effective records management program is well-defined and organized; it ensures consistency in records maintenance, regardless of the storage media. Most people think records are “papers” or “documents.” However, as defined here, “records” include a variety of physical forms.

Definition of Record
California Government Code Section 14741 defines “records” as all papers, maps, exhibits, magnetic or paper tapes, photographic films and prints, punched cards, and other documents produced, received, owned, or used by an agency, regardless of physical form or characteristics.

California Government Code Section 6252 defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics and defines “writing” as handwriting, typewriting, printing, Photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any form of communication or representation, including letters, words, pictures sounds, or symbols, or combinations thereof, and any record thereby created, regardless of how the record has been stored.

Certain materials, generally termed transitory records, will be present in almost every record collection.

These are records whose value is comparatively short-lived and should be discarded when they have fulfilled the purpose for which they were created. Examples of transitory records:
• Copies of reproduced or printed materials of general informational value, such as in-hose newsletters, employment bulletins, administrative communications sent to all departments, and meeting notices for other agencies.
• Original and copies of communications of acknowledgment. • Copies of preliminary work materials used in the preparation of reports, studies, and similar documents, such as drafts, notices, and tape recordings. • Extra copies of publications, reports, correspondence, or other records. • Certain materials generated outside of the city that serve solely as informational items and have no significant ongoing value to the city can be designed as non-records. These items should be promptly disposed of when they have fulfilled their informational purpose. Examples of these include magazines, publications from other cities or companies used for reference, brochures for consultants, products, sales or services, advertisements, and other items generally termed “junk mail.”
• Library reference and exhibit materials.

Page | 176
Transitory and non-recordsshould not be listed on records retention schedules. Still, departments should be notified as to the handling of such non-records through the records management manual, an administrative procedure, or another similar process.

Section 2 - FEDERAL FREEDOM OF INFORMATION ACT (FOIA)
The Federal Freedom of Information Act (FOIA), on which the California Public Records Act (CPRA) was modeled, gives the public the right to access information held by federal agencies (5 USC Sections 552- 559).

Congress intended that “any person” should have the right of transparent access to agency records without having to state a reason for wanting the information, and the burden of proof for withholding information rests with the government agency. FOIA requires all federal agencies to publish rules, regulations, and appeal procedures that govern the release of information from their respective agencies.

There are nine types of records exempt from the Act:

1. National security matters;

2. Matters related to internal personnel rules and practices of the agency;

3. Matters explicitly exempted by statutes;

4. Trade secrets and commercial or financial information which is privileged and confidential;

5. Inter- or intra-agency memoranda or letters unavailable by law unlessthe party isin litigation with the agency;

6. Personnel or medical files, disclosure of which would be an invasion of privacy;

7. Investigatory files of law enforcement agencies;

8. Information filed with an agency responsible for the regulation or supervision of financial institutions;

9. Geological and geophysical information concerning wells.

Section 3 - CALIFORNIA PUBLIC RECORDS ACT (CPRA)
California Constitution, Article 1 states, “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” Moreover, statutes, court rules, and other authorities must be broadly construed if they further the people’s right to access and narrowly construed if they limit the right of access. Furthermore, the government has the burden of proof to show that a record should not be disclosed.

The California Public Records Act (CPRA) (Government Code Sections 7920 et. Seq.) was passed by the California Legislature in 1968 (and recodified in 2022 by the AB473, also known asthe CPRA Recodification Act of 2021) for government agencies and requires that government records be disclosed to the public, upon request, unless there are privacy or public safety exemptions which would prevent doing so.

Government Code §7920.530 defines a public record as “any writing containing information relating to the conduct of the public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics."
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The Public’s Right to Inspect
Combined with the California Constitution, the CPRA ensures the public’s right to inspect public records, except as otherwise provided (GC 7922.525(a)). When it adopted the Act, the legislature found and declared that access to information about the conduct of the people’s business is a fundamental and necessary right of every person in the State (GC 7921.000). The general policy of the CPRA favors disclosure, and a refusal to disclose information must be justified by the specific exemptions enumerated in the Act. The subject of the records sought does not, because they are personally affected, have any greater right than any other person to examine the records. Likewise, a subject person ordinarily has no right under the CPRA absent specific legal authority to the contrary to prevent disclosure of the record to any other person. News organizations do not have any greater right than other individual residents to inspect or receive copies of public records. A public agency is authorized to seek disclosure of public records in the possession of another public agency.

Inspection Rights Under CPRA: Under the California Public Records Act, public records are ordinarily open to inspection at all times during the office hours of the state or local agency in which they are kept (GC 7922.525(a)).

Records Subject to Inspection Under CPRA: “Public records” that are subject generally to inspection and copying include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics (GC 7920.530 (a)).

Note: Ballot Measure Information Generally Not Subject to Inspection: Initiative, referendum, and recall petitions, and all memoranda prepared by the election officials when examining such petitions indicating which registered voters signed particular petitions are not considered public records and cannot be inspected except by the public officer or public employees who have the duty of receiving, examining, or preserving such petitions, or who are responsible for the preparation of such memoranda. However, if such a petition is found to be insufficient, then the petition is subject to inspection by the proponents of the petition and their designated representatives to determine which signatures were disqualified and the reasons for such disqualification. With court approval, city attorneys and the Fair Political Practice Commission are permitted to examine these materials (GC 7924.110(a)).

Recordings of Public Meetings are Subject to Inspection: Any tape or film record of a meeting made by or at the direction of a local agency is a public record that must be trained and made available to the public for at least 30 days. The agency must provide to the public, without charge, equipment to review the record (GC 54953.5(b)).

Electronic Records, Including E-mails, Photographs, Photocopies, and Faxes, May be Subject to Inspection:

The manner or medium in which a record is stored is irrelevant for purposes of defining the public record under the CPRA. If the information is an e-mail that would be retained and used if it were in a nonelectronic format, the e-mail should be similarly treated. Electronic records, including e-mail, photographs, photocopies, and facsimile transmissions, are public records if (1) they contain information relating to the conduct of the public’s business and (2) they are prepared, owned, used, or retained by the agency. A “writing” is now defined as any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication orrepresentation, including letters, words, Page | 178
pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of how the record has been stored (GC 7920.545).

Agreements and Contracts are Subject to Inspection: Contracts entered into by a local agency that require a private entity to review, audit, or report on any aspect of the city are public to the extent otherwise subject to disclosure by the CPRA (GC 7928.700). Likewise, employment contracts with public officials or employees must be disclosed (GC 7928.400). Although legal service agreements between a local agency and its attorneys are public records, they may also constitute confidential communicationsthat fall within the attorney-client privilege (BPC 6068(e), 6149, EVID 952, 954). Only the agency’s legislative body may waive the privilege (EVID 912, GC 7921.505(b)).

Records Distributed During a Public Meeting or for an Agenda Item: Non-exempt writings that are distributed to call or a majority of all members of a legislative body in connection with a matter subject to discussion or consideration at a public meeting of the body are public records and must be made available on request without delay (GC 54957.5(a)). They must be made available at the meeting if they are prepared by the agency or a member of the legislative body but need not be made available until after the meeting if they are prepared by another person (GC 54957.5(c)). The agency may charge a fee for a copy of the record, but it cannot impose a surcharge to make it available in alternative formatsfor persons with disabilities (GC 54957.5(d)).

Officials of a local agency may access public records of their agency that are otherwise exempt when authorized to do so as part of their official duties. When the members of a legislative body are authorized to access an agency writing in the administration of their duties, the agency is not permitted to discriminate between or among members as to which writing, or portion thereof, is made available or when it is made available (GC 7920.515, 54957.2).

A city may not allow another party to control the disclosure of information that is otherwise subject to inspection under the CPRA (GC 7921.005). Moreover, a local agency may not provide public records subject to disclosure under the CPRA to a private entity in a way that prevents the agency from providing the records directly under the Act (GC 7921.010 (a)).

The right to inspect public recordsis not necessarily the same asthe right of a litigant to obtain documents through discovery. Exemptions in the CPRA do not determine whether records are privileged in pending litigation to defeat a party’s right to discovery.

Public’s Right to Request Copies – Public Records Request Right to Exact Copy of an Identifiable Record: Unless an exemption applies, a state or local agency must comply with requests for copies of public records that reasonably describe an identifiable record by promptly making the record available for inspection and by providing a copy (GC 7922.530(a)). The state or local agency may charge a fee for copies, which covers only the direct costs of duplication. An exact copy of the record must be provided unless it is impracticable to do so (GC 7922.530(a)).

Public’s Right to Assistance from Agency: Agencies must provide reasonable assistance to persons in locating public records (GC 7922.600 (a)(2)). First, agencies must assist in identifying records responsive to the request or its purpose (GC 7922.600 (a)(1)). Second, agencies must describe the information technology and the physical location in which the records exist (GC 7922.600 (a)(2)). Third, agencies must provide suggestions for overcoming any practical basis for the denial of records access (GC Page | 179
7922.600(a)(3)). The obligation to assist a requestor does not apply if the city makesthe requested records available according to Article 1 (commencing with Section 7922.500) and Article 2 (commencing with Section 7922.525) (GC 7922.605(a), makes available an index of itsrecords (GC 7922.605(b), or determines that the request should be denied and bases that determination solely on an exemption listed in Section 7920.505 (GC 7922.605(c)). A city is also relieved of its obligation to assist the requestor if the requestor fails to provide additional clarifying information in response to the city’s reasonable efforts to identify the requested information (GC 7922.600 (b)). Cities are not required to create new records in response to a request.

Request Must Be Focused and Specific: The request for public records must be focused and specific.

However, requestors do not need to identify the record sought precisely. Also, requests do not need to be in writing.

Fees: Direct Cost of Duplication: An agency must promptly make copies of requested records available on payment of fees reimbursing the agency for the direct costs of duplication or a statutory fee, if applicable (GC 7922.530(a)). The cost of copying may not include personnel time retrieving, inspecting, or handling the file from which the copy is extracted; it only covers “the cost of running the copy machine and conceivable also the expense of the person operating it.” Some statutes specify a precise reproduction cost. For example, charges for reproducing disclosure statements required by the Political Reform Act cannot exceed 10 cents per page, except that an agency may charge an additional $5 fee for retrieving records that are 5 or more years old (GC 81008).

Time Limits: 10-Day Rule; 14-Day Extension: Within 10 days after receiving a request for copies of records, an agency must determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency. The agency must determine whether the records are disclosable.

If records are partially or wholly non-disclosable, the agency must notify the person requesting the determination, the decision-maker’s identity, and the reasonsfor the determination. An agency must also inform the persons seeking records when any wholly or partially disclosable records will be made available. The 10-day time limit may be extended if “unusual circumstances,” as described in Government Code Section 7922.535(c), are found to exist. The agency executive or designee must give written notice to the person making the request, providing the reasons for the extension and the date on which a determination is expected to be made. The extension must not be more than 14 days (GC 7922.535(b)).

Notification of Denial: Any notification of denial of any request forrecords must, in addition to the reasons for the denial, state the names and titles of positions of each person responsible for the denial (GC 7922.540(b)). An agency may not delay or obstruct the inspection or copying of public records (GC 7922.500).

Segregated Records Must Be Made Available: Any reasonably separable portion of a record must be available for inspection by any person requesting the record after deletion (redaction) of the portionsthat are exempted by law (GC 7922.525 (b)). The Political Reform Act (GC 81000-91014) does not require the agency to create a “privilege log” or list that identifies specific records being withheld.

Electronic Format Information: Information that constitutes an identifiable public record not otherwise exempt from disclosure that is in an electronic format must be made available in an electronic format when requested (GC 7922.570 (a)). Under certain circumstances, the requestor may be required to bear the cost of programming and computer services necessary to produce a record not otherwise readily Page | 180
produced (GC 7922.570 (a)). The information does not need to be released in the electronic form in which it is held if its release would jeopardize or compromise the security or integrity of the original record or any proprietary software in which it is maintained (GC 7922.580(c)). When requested, a city must also provide the record in an alternative electronic format used by the city (GC 7922.580 (b)).

Computer software developed by local agencies, including computer mapping systems, computer programs, and computer graphic systems, is not a public record subject to the CPRA and may be sold, leased, or licensed by the agency (GC 7922.585). However, the exception for agency-developed software does not affect the public record status of information merely because it is stored electronically (GC 7922.585(c)).

Faster or Greater Access Requirements Possible: Except as provided by law, an agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards created by the CPRA (GC 7922.505).

Non-Disclosure of Records - Exemptions
General Exemption Under California Public Records Act: An agency must justify withholding any record by demonstrating the record is expressly exempt under the CPRA or that, on the facts of the particular case, the public interest in nondisclosure clearly outweighs the public interest served by disclosure (GC 7922.000). The public interest in disclosure will be balanced against the public interest in maintaining the confidentiality of the record. To justify nondisclosure, the agency must “demonstrate a clear overbalance on the side of confidentiality.” (GC 7923.750(b))
The burden of proof is on the public agency. The motive or interest of the records requestor is “generally” irrelevant under the balancing test.

Deliberative Process Privilege Under California Public Records Act: The deliberative process privilege is essentially a product of cases interpreting the federal Freedom of Information Act. The deliberative process privilege applies to requests for records made under the CPRA; it protects materials reflecting deliberative or decision-making processes. The question of whether an official may invoke the deliberative process privilege depends on whether disclosure of the requested materials would expose the agency’s decision-making process in such a way as to discourage candid discussion within an agency and thus undermine the agency’s ability to perform its functions. The privilege is not absolute; it applies only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Specific Record Exemption: Certain records are expressly declared exempt from the disclosure requirements of the CPRA. These exemptions are detailed in Government Code Sections 7930.000- 7930.215. The most commonly raised exemptions are discussed below.

Election Documents Exempted: Referendum, initiative, and recall petitions may not be reviewed by anyone other than the Clerk and the proponents (not even the city attorney) in the absence of a court order (GC 7924.110(c)). Government Code Section 7924.000 prohibits the disclosure of voter registration information such as an address, telephone number, e-mail address, precinct number, and voter identification number except to specified individuals identified in Elections Code Section 2194.

Nomination papers must be made available for inspection, but they cannot be copied by the public (EC 17100).

EXHIBIT 25

CITY OF NATIONAL CITY

AFFIDAVIT OF CITY EMPLOYEE / PUBLIC OFFICIAL

REGARDING SEARCH OF PERSONAL DEVICES / ACCOUNTS

PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT
INSTRUCTIONS: This form is to be completed by any City of National City (City) employee / public official who searches their personal device(s) and account(s) for public records in response to a request submitted to the City under the California Public Records Act (CPRA).

NextRequest #: (CPRA Request)
I, , certify that I am a City employee or public
official. In response to the above-referenced CPRA Request, I further certify and declare the following:

1. I have been properly trained on what constitutes a public record under the CPRA.

2. I have personal knowledge of all communications on my personal device(s) and account(s).

3. I have conducted a search for public records on these personal device(s) and account(s) owned by me (check all that apply):
☐ Personal email account(s)
☐ Personal device(s) – text messages
☐ Personal device(s) – call logs
☐ Personal social media account(s) – messages
☐ Other (please describe):

Date range for records search:

Search terms used (if any):

4. I attest to the following:
☐ I have NO public records responsive to the CPRA Request on my personal device(s) or account(s)
☐ I have provided ALL public records responsive to the CPRA Request to the City
I hereby declare the above is true and correct under penalty of perjury.

Signed: Date:

EXHIBIT 26

Published
Closed
December 09, 2024 via web
Michael Aguirre
[email protected]
501 W Broadway, Ste. 1050,
San Diego, CA, 92101
619-252-1123
Aguirre & Severson, LLP
Planning
City Attorney's O�ce
Greetings,
Under the Public Records Law of the State of California and Article 1 Section 3 of the California State Constitution, please provide me any records of communication or calendared
meetings in which Mayor Ron Morrison, Josie Flores Clark, David Welch, Carlos Aguirre, or Martin Reader participated along with Edward "Eddie" Brinko, Robert Zakar, Joseph
"John" Brikho, and Adeeb Asso Brikho related to the
proposed development requested a new gasoline service
station, convenient store with o�-sale alcohol, drive-through car wash, drive-through eating place, and �ve residential units located at 2311 Sweetwater Road, National City,
California, 91950. Thank you.
...

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January 29, 2025, 3:51pm by Sta�
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C Michael J. Aguirre, Esq., SBN 060402
Maria C. Severson, Esq., SBN 173967
Alexander M. Gutterud, Esq., SBN 358345

AGUIRRE & SEVERSON, LLP
501 West Broadway, Suite 1050
San Diego, CA 92101
Telephone: (619) 876-5364
Facsimile: (619) 876-5368
Attorneys for Petitioner/Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO

MICAELA POLANCO,
Petitioner/Plaintiff,
CITY OF NATIONAL CITY, et al.,
Respondents /Defendants.

Case No. 25CU004193C
Assigned for All Purposes to
Honorable Mark T. Cumba Dept. SD-65

MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF
PETITIONER’S MOTION TO ISSUE WRIT

OF MANDAMUS COMPELLING

DISCLOSURE OF IMPROPERLY

WITHHELD PUBLIC RECORDS UNDER

THE CALIFORNIA PUBLIC RECORDS ACT
(CAL. GOV. CODE § 7920.000) AND ART. I,
SEC. 3 OF THE CALIFORNIA

CONSTITUTION
Date: June 26, 2026
Time: 8:30 a.m.

Dept.: C-65
Complaint filed: 1/24/2025

IMAGED FILE
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C I. INTRODUCTION AND SUMMARY
This case seeks an order directing defendant to conduct a search “reasonably calculated to locate responsive documents” requested in petitioner’s public records request. (City of San Jose v.

Superior Court (2017) 2 Cal.5th 608, 627.) Sought are public records relating to how a highdensity commercial development proposed for a dangerous intersection in National City, eventually found to be a public nuisance (Nuisance Project) obtained the support of the City’s planning staff. Respondent claims the project has ceased; however, the commercial and highdensity zoning and land use plans remain.

The Nuisance Project developer (referred to herein as the “Brikhos”) is a major benefactor of the Mayor and enjoyed the Mayor’s support. The Mayor exercises his powers through an assistant, who told the City planner overseeing the Nuisance Project “the Brikhos need help. We need to meet with them. You need to meet with them.” (Aguirre Decl., Ex. 18, 917-24.) From January to December 2024, the City planning staff helped the Nuisance Project evade California Environmental Quality Act (“CEQA”) review for air pollution, noise and traffic and also helped the Nuisance Project obtain three zone variances for the price of one. Then, Planning Staff wrote a Staff Report recommending the National City Planning Commission approve the Nuisance Project. Finding the Nuisance Project would be a public health nuisance, the Commission rejected the Nuisance Project on December 2, 2024.

Considering National City officials’ efforts to keep its most sensitive acts out of the public eye, Petitioner seeks responsive texts from National City officials’ cells phone sand calendar documents. National City officials’ responses to Public Records Requests have been stalled, incomplete, and non-existent. First, production was delayed for over 30 days. Next those officials claimed all responsive writings had been produced, yet later admitted there were additional documents that had not been produced. In short, City officials are withholding public records. “Laws, originally designed to cover paper documents, apply to evolving methods of electronic communication. It requires recognition that, in today's environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace.”(City of San Jose, Cal.5th at 615.) “[W]hen a city employee uses a personal account 1 2
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”(Id. at 617.)
The California Supreme Court said “in the context of the public’s right of access to court proceedings and documents, public access makes it possible for members of the public ‘to expose corruption, incompetence, inefficiency, prejudice, and favoritism.” (International Federation of Prof. and Tech. Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 333.) The Public Records Act (PRA) establishes a basic rule requiring disclosure of public records upon request. Government Code §7920.530 defines a public record as “any writing containing information relating to the conduct of the public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics." “Under this definition, a public record has four aspects. It is (1) a writing, (2) with content relating to the conduct of the public's business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency. (City of San Jose v. Superior Court, 2 Cal.5th at 627.) In general, the PRA creates a presumptive right to access any record created or maintained by a public agency that relates in any way to the business of the public agency. (County of San Benito v. Superior Court (2023) 96 Cal.App.5th 243, 253.) A public agency's inability or unwillingness to locate and produce records is tantamount to withholding requested information from a Public Records Act request. (Id. at 254.)
The burden of proof is on Respondent, the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality. (Becerra v. Superior Court (2020) 44 Cal.App.5th 897, 900; see Iloh v. Regents of University of California (2023) 87 Cal.App.5th 513, 2023 (release of records ordered because they related to use of public funds); State Bd. of Equalization v. Superior Court (1992), 10 Cal.App.4th 1177 (The California Public Records Act does not differentiate among those who seek access to public information); California State University, Fresno Assn., Inc. v. Superior Court (2001), 90 Cal.App.4th 810 (Disclosure allowed the public to discern whether its resources were spent for the benefit of the community at large or only a limited few); CBS Broadcasting Inc. v. Superior Court 91 Cal. App. 4th 892 (agency failed to carry its burden) City of Hemet v. Superior Court (1995, 37 Cal.App.4th 1411; American 1 2
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C Federation of State Etc. Employees v. Regents of University of California (1978) 80 Cal. App. 3d 913 (Trial court abused its discretion in refusing to order disclosure); Braun v. City of Taft (1984) 154 Cal.App.3d 332 (public interest in nondisclosure asserted by city did not clearly outweigh the public interest served by disclosure); County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301 (disclosure would contribute to public understanding of government activities) modified; Marken v. Santa Monica-Malibu Unified School Dist. (2012), 202 Cal.App.4th 1250 (the public had a legitimate interest in knowing whether and how the district enforced its sexual harassment policy); Connell v. Superior Court (1997) 56 Cal.App.4th 601, (failed to satisfy her burden of demonstrating a public interest in nondisclosure clearly outweighed the public interest in disclosure); City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083 (city required disclose deposition transcripts from litigation in which the city was a party); Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440 (public pension information must be released).

Here, what remains is to define how the Court should order disclosure. Respondent’s violations of the CPRA falls into two categories: (1) failure to conduct a reasonable search for the records requested, and; (2) failure to produce responsive writings. (San Jose, 2 Cal. 5th at 623).

With regards to both violations, the deposition admissions of former City Manager Martinez, Mayor Morrison, and mayoral assistant Flores-Clark establish a pattern and practice by Respondent’s employees of the same.

II. STATEMENT OF FACTS
A. Petitioner’s Records Request Relates to Potential Corruption in Government Petitioner’s public records request relates to how a proposed development that was rejected by the Planning Commission as a public nuisance (“Nuisance Project” consisting of a gas station with a drive through 24-hour restaurant, store with liquor sales 20-hours per day and residences above, a car wash, and offices sharing a fence with a home and preschool) was recommended by the National City Mayor and his staff. (Aguirre Decl., Ex. 4).1 Project developers Edward "Eddie" Brikho, Joseph "John" Brikho, and Adeeb Asso Brikho, (collectively 1 Unless otherwise noted, all Exhibits are to the Declaration of Michael J. Aguirre, filed herewith. 1 2
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C “Brikhos”) have a longstanding close personal and political relationship with Mayor Ron Morrison and the Mayor’s assistant, Josie Flores-Clark. (Ex. 3).

There were several fatal flaws with the proposed development: it did not fit the character of the surrounding community, it relied on traffic data for a different parcel in a different neighborhood, and it was missing impact studies necessary for compliance with state environmental impact laws (Ex. 4.) Yet, the City Planning Department staff issued several variances and approved for permits. (Ex. 2.) In its report, Planning Department staff claimed “the project is exempt from CEQA,” the requested uses were “conditionally allowed” and was also “consistent with the General Plan and Land Use Code…” (Ex. 2.) On December 2, 2024, the City Planning Commission rejected the inexplicable staff recommendation and voted 5-0 to deny the Nuisance Project a permit. (Ex. 4, p. 2.) The Planning Commission’s reason was succinct and unambiguous:

Granting the permit would constitute a nuisance or be injurious or detrimental to the public interest, health, safety, convenience, or welfare, or materially injurious to persons, property, or improvements in the vicinity and zone in which the property is located. (Ex. 4.) (emphasis added).

Nonetheless, concerns lingered: Given the Nuisance Project’s many obvious deficiencies, how could it obtain a Planning Department recommendation? Petitioner thus requested records from the City on December 4, 2024, seeking communications between the Brikhos and the Mayor, assistant Josie Flores-Clark, and other people under their charge. (Ex. 1.) The City put the Nuisance Project matter on the agenda the following week, December 10, 2024, with Planning Department approval. (Ex. 5.) When Petitioner and others in opposition attended, the Mayor proclaimed the Project “dead” and taken off the agenda. (Aguirre Decl. ¶ 4) As Petitioner would find out in a withheld (and belatedly disclosed) document dated December 10, 2024, the project was anything but dead. (Ex. 6.) The Nuisance Project’s developers told the City the project was “on hold for now” with the goal of “com[ing] back to meet with the City staff to see how we can find a project that will work.” (Ex. 6.). / / /
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C B. Petitioner Made Her Records Request and Clarifications over 8 Months Ago Over 8 months ago, on December 4, 2024, Petitioner made Records Request 24-679 to the City asking for communications between City staff and various individuals and local agencies relating to the Nuisance Project. (Ex. 7.) On December 9, 2024, City Clerk Shelley Chapel asked for clarification. (Ex. 7.) Petitioner replied first by issuing Records Request 24-688 to the City as a follow-up to Request 24-679, which narrowed the scope of individuals and topics:
[R]ecords of communication or calendared meetings in which Mayor Ron Morrison, Josie Flores Clark, David Welch, Carlos Aguirre, or Martin Reader participated along with Edward "Eddie" Brinko, Robert Zakar, Joseph "John" Brikho, and Adeeb Asso Brikho related to the proposed development requested a new gasoline service station, convenient store with off-sale alcohol, drive-through car wash, drive-through eating place, and five residential units located at 2311 Sweetwater Road, National City, California, 91950. Thank you. (Ex. 26: 24-688.) On December 10, 2024, Petitioner narrowed Request 24-679 by explaining the intent:

To clarify, I am seeking all communications between the National City Mayor, his office and staff, and the Planning Dept., and all communications between the other National City employees or officials named in the request, between each other or with those persons and entities listed outside of National City, relating to the proposed development of property located at the corner of Sweetwater and Orange (2311 Sweetwater Rd) between the dates of January 2023 to present. Also to clarify, the spelling Brinko should be corrected to Brikho. (Ex. 7, p. 3.) Six days later, on December 16, 2024, the City posted an update on its NextRequest system claiming the records sought were “voluminous” and would take “multiple staff members time to pull and then go through a review process.” (Ex. 7, p 2.) After Respondent was unwilling to locate and produce records for seven (7) weeks, a protracted delay tantamount to withholding the requested information, Petitioner filed the underlying Public Records Act enforcement action on January 24, 2025. (ROA 2.) Five days later, on January 29, 2025, Respondent made a production of some records, but claimed it completed the records requests. (Ex. 1, p 2.) Petitioner’s review and discovery since demonstrate all records requested were not produced; some were not even searched for, and others are conspicuously missing. (Ex. 1.). 1 2
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C C. Records and Deposition Testimony Establish that Further Responsive Records Exist on Respondent’ Employees’ Cell Phones
Respondent has failed to produce (1) records of communications generated by City employee cell phones, (2) any records of calendared meetings, and (3) further records relating to meetings and substantive discussions, as discussed below. #1: No Records Relating to an In-Person Meeting for the Brikhos’ Projects An e-mail dated April 22, 2024, reveals the Brikhos transmitted the Nuisance Project’s architectural plans to Mayor Ron Morrison and mayoral assistant Josie Flores-Clark via attachments thereto, then met with them “this Wednesday” on April 24, 2024, regarding “our upcoming projects that we will be discussing with you guys.” (Ex. 8.) Yet, no calendar entry for the meeting was produced, no notes from the meeting were produced, and no other documents related to the Project were produced.
#2: No Records Relating to Discussions Between City Staff and the Brikhos On May 29, 2024, the City Planning staff sent an “incomplete” letter to the Project applicant itemizing Project deficiencies, such as “a traffic analysis” and other information relating to “the level of environmental clearance under [CEQA].” (Ex. 9.) The next day, on May 30, 2024, the Project applicant forwarded the May 29, 2024, incomplete letter to Mayor Morrison and his assistant Flores-Clark. (Ex. 9.)
On August 6, 2024, City Planning staff sent a second “incomplete” letter detailing the Project’s remaining deficiencies. (Ex. 10.) Nine days later, on August 15, 2024, the Brikhos again sent the Planning Department’s letter to Mayor Morrison and Flores-Clark. (Ex. 10.) On October 9, 2024, City Planning staff consulted the Brikhos to help invent “justifications” for three variances identified by City staff for the Nuisance Project to proceed. On the same day, the Brikhos forwarded the email to Morrison and Flores-Clark. (Ex. 11.) Again, no records were produced related to meetings or communications regarding the communications about the Nuisance Project’s failure to comply with CEQA sent by Planning Dept. staff to the Brikhos and, inexplicably, to Mayor and his assistant. (Aguirre Decl. ¶ 5.) / / /
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C #3: Missing Phone Records from Martinez as to Brikho Meetings A few months later, mayoral assistant Josie Flores-Clark set up a group text message to discuss the Nuisance Project in which the Brikhos, then-City Manager Martinez, and Mayor Morrison were included. (Ex. 12.) The group text message chain reveals the occurrence of a 2:00 PM meeting between these key individuals on Wednesday, October 23, 2024. (Ex.12.) Joey Brikho’s request for “anyone from planning” to “sit[] in on our meeting” and mention of the “city traffic engineer… sitting in with us” indicate the meeting was held to discuss how the Brikhos could obtain a Planning Department recommendation. (Ex. 12.) Again, no writings, notes, emails, or text messages of any kind were produced by the City relating to the October 23, 2024, meeting. (Aguirre Decl. ¶ 5.)
On December 5, 2024, shortly after the December 2, 2024, Planning Commission meeting declaring the project to be a public nuisance, the Brikhos told the Mayor and the City Manager that “we need to do whatever we can to renew [the existing CUP].” (Ex. 12.) The Brikhos claimed they “allowed it to expire because we thought our proposed project was going to replace it because we put so much work and had support from the City…” (Ex. 12).

Petitioner expected to receive substantially similar records for the same conversations from the City Manager’s phone, in addition to other records of communication therefrom.

However, Respondent claims both the cell phone on which the City Manager’s related text messages are stored and the records within have vanished. (Aguirre Decl. ¶ 6.) Martinez became the interim City Manager in August 2023. (Ex. 13: Martinez 45: 2-5.

Martinez “had two cell phones during the time I was city manager” but lost possession of a Cityissued phone “around November or early December of ‘24” by “trad[ing] that in for another work cell phone with IT… because he “got a lot of spam calls…” (Ex. 13: Martinez 16:8-14.) Martinez testified he traded in his work phone “before the PRA lawsuit, before any of this happened.” (Ex. 13: Martinez 16:8-13.) To summarize: Martinez claims he did not conduct a search of the Cityissued cell phone he possessed at the time of the Brikho-Mayor-Manager group text messages because he had already given the phone to the City’s IT department. (See generally Ex. 13.) 1 2
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C According to City Network Administrator Damon Dong, Martinez turned in his cell phone “the week before we went on furlough.” (Ex. 14: Dong 6:3-8.) The furlough began Friday, December 20, 2024, 11 days after Request 24-688 was filed. (Ex. 15.)2 Dong testified that when Martinez handed over his City cell phone, he did so as part of “the process of moving from Verizon to AT&T, whole city.” (Ex.14: 6:5-6.) Dong then asked Martinez if “we need to move stuff from this phone to your new phone”; Martinez “declined.” (Ex. 14: 6:9-11.) Dong testified Martinez’s phone “was erased before I got it; because I don’t recall seeing anything on the phone.” (Ex. 14: Dong 18:14-18.) Dong further admitted he did not “log in the receipt” of the phone, “like a paper trail.” (Ex. 14: 6:17-20.) In fact, Dong claims he does not know the whereabouts of the Martinez phone and even speculated “it may be in a pile someplace.” (Ex. 14: 9:13-25, 10:1-15, 23:9-21.) The City has yet to provide an explanation for why Martinez’s cell phone records are missing, why it hasn’t attempted to locate Martinez’s former cell phone, or why no records have been disclosed after eight months. (Aguirre Decl. ¶ 7.) #4: Missing Phone Records from Morrison as to Brikho Meetings The Mayor was one of the members of a text group named “Team”; the Team members included the Mayor, his assistant, and two of the Brikhos. (Ex. 12) Respondent’s records reveal Morrison has used at least three phone numbers for official business: a (1) a “city cell phone”; (2) “landline at my house”; and (3) “personal cell phone.” (Ex. 16: Morrison 7:6-15.) Morrison testified he did not need to submit his City cell phone for IT to locate responsive text messages on his phone “because they have electronic access to all of that. I don’t have to actually hand them the phone itself.” (Ex. 16: Morrison 9:25-10:5.) He further claimed the messages are stored on the “city computer system… They have all that. That’s what they’ve informed me…” (Ex. 16: 10:15-22.) When questioned further, he claimed he thought IT was searching for records "because I was informed by our legal counsel.” (Ex 16: 13:20-22.) However, City’s IT Department head Ron Williams denied searching for text messages and testified he did not search “any cell phones”; the City’s IT Department was only equipped to 2 https://www.nationalcityca.gov/government/library/library- calendar#:~:text=Holiday%20Furlough%20Closure%3A%20Friday%2C%20Dec.%2020%2C,20 24%20-%20Sunday%2C%20Jan.%205%2C%202025
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C “just search the e-mails” within employee e-mail accounts. (Ex. 17: Williams 12:6-24, 13:15-18.) When asked if the Mayor’s “text messages [are] stored on the City’s server,” Williams testifed “No.” (Ex. 17: 25:23-25, 26:1.) When asked if any of the City’s computer systems had those text messages, Williams again answered, “No.” (Ex. 17: 26:2-4.) When asked if that would “be true of all of National City” employees, Williams confirmed: “Correct.” (Ex.17: 26:7-8.) Morrison’s testimony that he conducted a search and turned over responsive text messages (Ex. 16: Morrison 21:6-11) is contrary to the fact that no records are produced and admissions by City staff that the City has still not conducted a search of Morrison’s cellular devices or disclosed those records in over eight months.
#5: Missing Phone Records from Flores-Clark as to Brikho Meetings In addition to the Nuisance Project “Team” group text messages, Flores-Clark is identified by other City staff in various communications in which the Brikhos sought to meet with City officials regarding the Nuisance Project. For instance, Planning Department head Martin Reeder admitted Flores-Clark told him: "The Brikhos need help. We need to meet with them.” (Ex. 18:

Reeder 9:17-24.) Indeed, Flores-Clark admitted attending a January 2024 meeting with the Mayor, the Brikhos, and former City Manager Martinez. (Ex.18:9: Flores-Clark 99:11-20.) Flores-Clark has in fact admitted her handwriting appears on the original production of the Nuisance Project group text messages. (Ex. 19: Flores-Clark 55:5-7). The group Team text message was obtained from her “personal cell phone.” (Ex. 19: 55:22-25, 56:1.) She admitted to arranging the April 22, 2024, meeting with the Brikhos in the “mayor and council office” (Ex.19:
26:13-24, 38:12-15), yet, when asked if she found any responsive records on her City-issued cell phone, she claims no recollection. (Ex. 19: 19:14-18, 20:4-7). Indeed, the City has not met its burden as to why it has not produced responsive records from Flores-Clark’s City cell phone. #6: Missing Records of Calendar Entries for Meetings with the Brikhos Petitioners have not received any records of calendar entries from Respondent. Ron Williams, City IT Department head, disclosed that while the Department had the capability to search for calendars, “the users are the ones that usually provide their actual calendars.” (Ex. 17:
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C Williams 13: 3-14.). Flores-Clark nonetheless claimed the IT Department searches for calendar entries when responding to record requests. (Ex. 19: Flores-Clark 30:8-10; Williams 40:8-10.) When confronted with Williams’ contrary testimony, Flores-Clark admitted she “found calendars for [her] meetings related to the Brikhos and [she] turned those in…,” but could not remember how many such meetings with the Brikhos she turned in or if she gave her calendared meeting records to the City Attorney or City Clerk. (Ex. ; Flores-Clark 31:17-25, 32:1-4).

In contradiction of Flores-Clark’s testimony under oath that she provided printed copies of responsive records to the City Attorney or City Clerk. (Ex. 19: 43:5-21), City Clerk Shelley Chapel testified that Flores-Clark did not deliver hard copies of records responsive to Petitioner’s records requests. (Ex. 20: Chapel 75:15-18.) In fact, Chapel did not remember receiving any calendar entries for Mayor Morrison responsive to Petitioner’s records requests that were in a paper format. (Ex.20: 78:8-12.) Nor could she remember producing “any copies of Outlook calendared meetings…” in response to Petitioner’s records request. (Ex. 2-: Chapel 98:5-8.) D. Respondent has Stonewalled Production of City Staff Cell Phone Records of Communication and Calendars for Eight Months After months of negotiation and even attempted mediation (Aguirre Decl. ¶), it is now clear only judicial intervention can cause Respondent to produce the remaining responsive records. Petitioners’ efforts have been met with stonewalling, delay and denial.

For example, National City’s outside counsel has twice written (February 13, 2025, and April 11, 2025) that only “non-exempt” and “non-privileged” writings were produced, yet counsel did not identify the number of such documents. (Ex. 21, 22.) On Friday, April 11, 2025, after months of denying additional documents existed, National City produced a critical document showing that the project was “on hold,” not “dead,” showing the document had been withheld during the many months the City claimed it did not exist. (Ex. 22.) The City went so far as to remove the email’s apparent date on the document it produced that would show when it had been sent to City officials, claiming for the first time on April 23, 2025, that there was “attorney-client privileged information, which has been redacted.” (Ex. 22.) 1 2
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C Between April 14, 2025, and April 23, 2025, the City engaged in additional evasive action when it faced requests for a list of documents the City claimed to be privileged or exempt. Indeed, on five separate occasions, Plaintiff requested the City’s counsel clarify whether any documents were withheld based on exemption or privilege, and if so, on what grounds. (Ex. 23.) In response, on Tuesday, April 15, 2025, with 3 days left in that week, counsel did not “anticipate having time for a phone call this week” and committed to only respond “in due course.” (Ex. 23.) The following day, after Petitioner’s request for an itemization of: (1) any documents withheld based on attorney-client privilege; (2) any documents withheld based on an exemption; and (3) a complete copy of the December 10, 2024 email from Joseph Brikho to Martin Reeder, City legal counsel said she would only respond at some undisclosed future date “in writing.” (Ex.

23.) After two additional attempts to secure the so-called privileged or exempt information, City counsel gave another nebulous response on Wednesday, April 23, 2025, stating, “we continue to work on this and expect to respond shortly.” (Ex. 23.) Ultimately, City’s counsel changed its position and said, “there were no records withheld by the City” and the belatedly-disclosed December 10, 2024, email was redacted based on “attorney-client privileged information.” (Id.) III. ARGUMENT
A. Writ of Mandate Standard
A writ of mandate lies “to compel the performance of an act which the law enjoins, as a duty resulting from an office, trust or station.” (State Comp Ins. Fund v. Workers’ Comp Appeals Bd. (2016) 248 Cal.App.4th 349, 370); (Cal. Code Civ. Proc. §§ 1085(a), 1086). Specifically, “where an administrative body is required to act within a specified time and fails to do so, a writ of mandate will lie to compel the body to act.” (Id.)
The California Legislature thus provided for California Public Records Act (CPRA) requesters to enforce their rights through a writ of mandate. (Cal. Gov. Code § 7923.000). Should the Court find the City of National City’s “decision to refuse disclosure is not justified under Section 7922.000 or any other provision listed in Section 7920.505, the court shall order the public official to make the record public.” (Cal. Gov. Code § 7923.110). / / /
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C B. Respondent is Required to Disclose the Sought-After Electronic Records The California Public Records Act establishes a basic rule requiring disclosure of public records upon request. (Freedom Foundation v. Superior Court (2022) 87 Cal.App.5th 47, 47, citing Gov. Code, § 7922.525.) “[A]access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code § 7921.000.) “[T]he court shall order the officer or other person charged with withholding the records to disclose those records or show cause why that person should not do so. (Gov. Code, § 7923.100.) The CPRA is an inherent feature of California’s direct democracy, wherein “the people have the right of access to information concerning the conduct of the people’s business and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const. art. I § 3.)
The CPRA creates “a presumptive right of access to any record created or maintained by a public agency that relates in any way to the business of the public agency.” (City of San Jose, 2 Cal.5th at 616.) Every such record “must be disclosed unless a statutory exception is shown.” Id.

However, the Constitution specifies statutes “shall be broadly construed if it furthers the people's right of access and narrowly construed if it limits the right of access.” (Cal. Const. art. I, § 3(b)(2)). Therefore, “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.” (San Jose, 2 Cal.5th at 617) (emphasis original).

Whether a writing related to the public business involves “an examination of several factors, including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.” (Id.) The Supreme Court has “stressed that a document’s status as public or confidential does not turn on the arbitrary circumstance of where the document is located.” (Id. at 624.) Applying the above principles, the Supreme Court in San Jose case found “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.” (Id. at 629.) Like the cell phone records Petitioner seeks here, the San Jose writings in question were “e-mails and text messages 1 2
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C sent or received on private electronic devices used by city officials.” (Id. at 608, 615.) The cell phone records sought by Petitioner, whether from personally or publicly owned cellular devices, are precisely those the Supreme Court found to be disclosable public records.

What’s more, Respondent has not asserted any statutory exemption for the cell phone or calendar records sought by Petitioner and thereby waived any objection to disclosure thereto.

Thus, there is no option but to issue an order for disclosure. When Petitioner repeatedly asked Respondent to clarify whether it was asserting any statutory exemption for undisclosed records, Respondent did not. (Ex. 23.) Respondent then disclosed a lone e-mail, claiming it previously believed it to be attorney-client privileged – despite the lack of an attorney addressed or copied therein. (Ex. 23.) Despite Petitioner’s learning through the discovery process that responsive records have not been disclosed, but were concealed or destroyed, Respondent clings to its position that “there were no records withheld by the City.” (Ex. 23.) Martinez’s sophistry as to his work phone communications was directly contradicted by Network Administrator Dong’s testimony. Martinez claimed he turned in his work phone because of “spam calls” when in fact, everyone in the City turned in their phones to change service providers. (Ex. 13, 16:8-14; Ex. 14, 6:5-6). Dong testified Martinez “declined” to move his records from his old City phone to the new one, then “erased” his old phone before turning it in. (Ex. 14, 6:9-11; 18:16-18). Dong also testified that Martinez turned in his erased phone “the week before we went on furlough”, which was 11 days after Petitioner’s PRA request. (Ex. 14; 6:3-11).

Dong now cannot ascertain the whereabouts of the phone because the City lacked policies to track digital devices issued to its employees - “it may be in a pile someplace.” (Ex. 14, 6:17-20; 9:13- 25; 10:1-15, 23:9-21). The City cannot be trusted to comply with the Court’s order as to Petitioner’s request, let alone find Martinez’s missing phone or conduct information recovery Mayor Morrison’s statements fare no better. His excuse for failing to search for responsive records on his work phone was that IT employees “have electronic access to all of that. I don’t have to actually hand them the phone myself” and there was a “city computer system” where the messages were stored. (Ex. 16, 9:25-10:5-22). When questioned further, he blamed “legal counsel” for telling him IT was searching his phone. (Ex. 16; 13:20-22). 1 2
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C The City employee in charge of handling IT directly contradicted Morrison. IT Department head Williams testified (1) he did not search any phones, (2) IT could not do so because it lacked the means, and (3) no server existed with phone records. (Ex. 17; 12:6-24, 13:15-18, 25:23-25, 26:1-8). Again, a key City decisionmaker chose to evade the CPRA and then attempted to pass on responsibility to the City’s IT employees.

Flores-Clark’s testimony likewise reveals the City’s cavalier attitude to the CPRA. FloresClark admitted she was on numerous e-mails seeking “help” for the Brikhos, set up the “Team” group text messages with Mayor Morrison, former City Manager Martinez, and the Brikhos, and even arranged meetings at City Hall at the Brikhos’ request. (Ex. 12; Ex. 18, 9:17-24; Ex. 19, 26:13-24; 38:12-15; 55:5-7; 55:22-25; 56:1; 99:11-20). Yet, Flores-Clark claimed she could not remember whether she had any responsive records on her work phone. (Ex. 19, 19:14-18; 20:4-7).

When asked about calendar entries, Flores-Clark claimed IT handled calendar record searches despite Williams’ testimony that IT relied on employees to turn in their own calendars (Ex. 17, 13:3-14; Ex. 19, 30:8-10). Flores-Clark then stated she delivered hard copies of calendar records to either the city attorney or city clerk, but City Clerk Chapel testified Flores-Clark did not deliver hard copies of any records to her (Ex. 19, 31:17-25; 32:1-4; Ex. 20, 75:8-18). In fact, Chapel never produced any calendar entries in response to Petitioner’s requests. (Ex. 20, 98:5-8).

A pattern emerges: The City’s decisionmakers coordinated with each other to withhold documents from the public, exploiting their use of multiple cell phones to disguise records of communications with the Brikhos regarding the Nuisance Project. The decisionmakers each blamed the IT Department and even the City Clerk for their failure to produce records, only to be directly contradicted by deposition testimony. In so doing, Respondent committed numerous and continuing violations of the CPRA and the Constitution that warrant prompt judicial intervention.

C. The City Has Blocked Disclosure for Eight Months
The CPRA requires agencies to, “within 10 days from receipt of the request, determine whether the request in whole or in part, seeks copies of disclosable public records.” (Cal. Gov.

Code § 7922.500.) Should there be an “unusual circumstance”, the time limit “may be extended by written notice… [by no] more than 14 days.” (Cal. Gov. Code § 7922.535.) A public agency's 1 2
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SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C “inability or unwillingness to locate and produce [the records] … is tantamount to withholding requested information from a [Public Records Act] request.” (Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 466).

In furtherance of the decisionmakers’ efforts to prevent disclosure, Respondent stonewalled Petitioners for over eight months, several times the extension permitted by statute.

Indeed, Respondent’s first production of records did not occur until after Petitioner filed the underlying action. Thereafter, Petitioner asked Respondent’s counsel time and again to disclose the cell phone and calendar records, only to be met with noncommittal responses. (Exs. 21, 22, 23). Petitioner even attempted mediation and only when that failed did civil discovery begins. (Aguirre Decl. ¶ 3.) None of Petitioner’s good faith efforts at a speedy resolution have availed.

The record shows Respondent is unwilling to locate and produce the records D. The Court May Fashion an Appropriate and Extraordinary Remedy The Court is empowered to adjudicate whether a public agency has failed to comply with its CPRA obligations and to craft an appropriate remedy. Trial courts “shall set the times for hearings and responsive pleadings with the object of securing a decision as to the matters at issue at the earliest possible time.” (See Cal. Gov. Code §§ 7923.005, 7923.105).

The Court cannot trust Respondent and its employees to execute in good faith any order to conduct a search for and produce records as their coordination has to evaded disclosure. The Court can craft an appropriate remedy to ensure actual compliance with the requirements of the CPRA and the California Constitution: It can provide for a third-party neutral investigator to gather Petitioner’s sought-after records from Respondent. Only then can the Court ensure that Respondent fulfills its duties under the Constitution and the CPRA.

Petitioner thereby requests the Court (1) order a search be made of the personal nd Citycell phones of the Mayor, his assistant and the former City manager; (2) order the City to produce the calendars and writings relating to the meetings regarding the Public Nuisance development. and; (4) affidavits (see Ex. 25) be completed under the penalty of perjury. These procedures, according to the City Clerk, is the least it can do in light of its lax policy as to text messages and the PRA. (Ex. 20, 11:6-10, 12:1-16, 20:2-21:1, 22:15-23:2, 105:16-19, 107:13-25; Ex. 24.) 1 2
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MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT TO MOTION TO ISSUE WRIT OF MANDAMUS CASE NO. 25CU004193C IV. CONCLUSION
Petitioner respectfully requests the Court order the relief as requested.

AGUIRRE & SEVERSON, LLP
Dated: September 2, 2025 Michael J. Aguirre
Michael J. Aguirre, Esq. Attorneys for Plaintiff
From: [email protected] on behalf of eSCRIBE.Admin To: Tonya Hussain
Subject: Public Comment Received
Date: Tuesday, September 2, 2025 11:29:40 AM
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

User Alisha Morrison has enter the following comment(s):

The adoption of this ordinance screams favors for the developers. With this city's current deficit being at a HISTORIC level, how much money would a "Lot Tie" agreement vs a typical lot merger save a developer and take badly NEEDED money away from this city and the county? You just adopted higher development fees schedule, why are you NOT keeping it? To state this is a convenience only gives financial beneficial convenience for developers, perhaps favorite ones.
for Public Hearing: Second Reading and Adoption of an Ordinance Amending Title 15 (Buildings And Construction) of the National City Municipal Code Creating a New Section (15.83 – Lot Tie Agreements). in Regular City Council Meeting 9/2/2025 6:00:00 PM Please log into eSCRIBE to review the submitted comment(s).

Item 9.3
From: [email protected] on behalf of eSCRIBE.Admin To: Tonya Hussain
Subject: Public Comment Received
Date: Tuesday, September 2, 2025 12:56:00 PM
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

User Kailey Quezada has enter the following comment(s):

I personally support a Tobacco Retail Licensing (TRL) ordinance in National City to protect youth and young adults. I’ve seen many friends fall victim to vaping and the tobacco industry’s tactics. A TRL holds retailers accountable, prevents illegal sales, and helps protect students from addiction. Thank you for your consideration on this pressing matter. for Public Hearing – Second Reading and Adoption of an Amendment of NCMC 9.38 Establishing a Tobacco Retail License Program in Regular City Council Meeting 9/2/2025 6:00:00 PM
Please log into eSCRIBE to review the submitted comment(s).

Item 9.4
From: [email protected] on behalf of eSCRIBE.Admin To: Tonya Hussain
Subject: Public Comment Received
Date: Monday, September 1, 2025 5:41:45 PM
CAUTION: This email originated from outside your organization. Exercise caution when opening attachments or clicking links, especially from unknown senders.

User Ted Godshalk has enter the following comment(s):

You should deny this application as I stated in my comments to the Planning Commission and to you at your last meeting. 1- You must do something besides continuing to expand the OVERCONCENTRATION of alcohol outlets in this community. 2- You must decide that you will bring ESSENTIAL and DESIRABLE uses that improve our community. 3- You should see that the owners and operators want to turn this site INTO A BAR with alcohol as the principal service. The facts of this application are my proof. for Coastal Development Permit and Conditional Use Permit (CUP) for On-Site Beer and Wine Sales, and Live Entertainment at an Existing Restaurant (La Malquerida by Dolche) Located at 1524 McKinley Avenue. in Regular City Council Meeting 9/2/2025 6:00:00 PM Please log into eSCRIBE to review the submitted comment(s).

Item 10.1