LOS ANGELES (CN) — A California appeals court on Tuesday revived a 2016 lawsuit filed by two Los Angeles surfers against the city of Palos Verdes Estates over the municipal beach Lunada Bay and their tangles with the Lunada Bay Boys, which Newsweek once called "America's most notorious surf gang."
The plaintiffs had, Second Appellate District Presiding Justice Laurence Rubin wrote for the panel, "sufficiently alleged an actionable conspiracy in which the city has participated" and overruled the trial court which had dismissed the city from the suit.
"It’s a little overwhelming to know that something we fought so hard over, with such a pure intent, has been validated," said plaintiff Cory Spencer, a former Los Angeles Police Department officer. "Now we have some teeth and power behind what we’ve been trying to accomplish."
Lunada Bay, a rocky, crescent-shaped beach surrounded by cliffs tucked away in the exceedingly affluent city of Palos Verdes Estates on the southwest corner of LA County, was once called "Southern California's premier big-wave break" by the Encyclopedia of Surfing.
"It is also the state's best known area for localism," the encyclopedia entry says. "Visiting surfers since the early 1970s have had rocks thrown at them while walking down the cliffside Lunada trail, and returned from the water to find their car windows broken and their tires slashed — the work of local surfers, the sons of millionaires, determined to keep their break free of outsiders."
When Spencer, then a 44-year-old El Segundo cop, tried surfing at Lunada Bay, he says he had to pay a security guard $100 to watch his car. Even then, a local barked at him: "You can't surf here, kook" — a derisive term for a surfing neophyte.
"Once in the water, on his second wave at Lunada Bay, a member of [the] Lunada Bay Boys intentionally ran Spencer over with his surfboard and sliced open Spencer’s hand," Spencer says in his complaint.
Spencer and Diana Reed, then a 29-year-old filmmaker and model living in Malibu, filed a federal class action in 2016 against the Lunada Bay Boys, which they called "a criminal street gang." They also sued Palos Verdes Estates, claiming the city had condoned and enabled the Bay Boys' behavior — turning the other way, for example, when locals constructed a "rock fort" out of concrete, wood and stones as a sort of clubhouse to congregate, drink beer, grill meat, watch the surf and, the plaintiffs claim, intimidate outsiders.
A federal judge dismissed the lawsuit in 2018, but Spencer and Reed filed a similar complaint in state court. Twelve of the individual Lunada Bay Boys, including Frank and Charlie Ferrara, have settled the case, agreeing to voluntarily stay away from Lunada Bay for a year or pay between $35,000 and $90,000. Two other individual defendants have not yet settled.
In 2020, a state court judge dismissed claims against the city, ruling they did not constitute a violation of the Coastal Act.
There's no such thing as a private beach in California; the state's constitution guarantees public access to the entire 840-mile coastline. The 1976 California Coastal Act set up an elaborate planning process for all development in the "coastal zone." Just what "development" means, in the context of the Coastal Act, has been the crux of the Lunada Bay lawsuit up to this point.
Spencer and Reed claim the city "conspired with the Bay Boys essentially to privatize Lunada Bay," as the appellate court summarized it, in at least two ways: by allowing the Bay Boys to build their so-called "rock fort" and not dismantling it, and allowing the Bay Boys' pattern of harassment and intimidation to continue. The trial court ruled neither of these infractions, even if true, were violations of the Coastal Act as far as Palos Verdes Estates was concerned.
The appellate court disagreed on both counts. "The city, as landowner, violated the Coastal Act by maintaining the unpermitted rock fort on its property for decades," Rudin wrote for the panel. As for the harassment, Rudin wrote it "may qualify as a development under the Coastal Act."
"The Coastal Act defines 'development' broadly," Rubin wrote in the unanimous decision. Among many others, those definitions include a "change in the intensity of use of water or of access thereto.”
"We conclude a change in the access to water brought about by an organized scheme of harassment of, or similar impediment imposed on, those seeking access may be just as much a change in access to water as one brought about by a physical impediment," Rubin wrote. "Accordingly, as the harassment and other conduct alleged here directly interferes with, and sometimes precludes, access to the Pacific Ocean, it can be seen to fall within the language of the statute. Whether there is proof of this state of affairs is left to another day."
Kurt Franklin, Spencer and Reed's attorney, said the court's decision could prove a monumental one.
"In terms of the Coastal Act, it’s a very important decision," said Franklin. "It makes clear now that harassment is 'development' under the Coastal Act, and because of that it’s a Coastal Act violation and brings about penalties. So it’s a big deal."
Ed Richards, the attorney representing the city of Palos Verdes Estates, said in an email: "The city is disappointed with the appellate court's decision on the narrow issue that it addressed. The case will now be remanded to the trial court where we anticipate that the city will prevail."
A settlement remains a possibility as well. Spencer said the city wouldn't have to do much — only pledge to keep the beach open to everyone, install a few signs, maybe a few benches, and of course, dismantle that rock fort. He and Reed may also press the city for attorney's fees.
"I figure they would have the smarts to see the writing on the wall and come to some compromise," said Spencer. "If they're arrogant enough to continue to fight it, I just don’t see the wisdom of electing these same officials."
Franklin added: "We’re certainly not afraid to try this case and not afraid to stand up to bullies or City Hall. We’re not depending on a settlement to reach resolution. The city faces substantial risks moving forward."
Both Spencer and Franklin have heard, anecdotally, that localism at Lunada Bay is not as bad as it once was — though it still exists.
"This case has been mislabeled a surfing case," said Franklin. "It’s a civil rights case. It’s a case about open access."
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