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Home My WebLink About12/01/2010, B3 - PROCESS TO FILL COUNCIL VACANCY i council - j acenaa aepout 83 CITY OF SAN LU I S O B I S P O FROM: Michael Codron, Acting Assistant City Manager Prepared by: Elaina Cano, City Clerk f L4#--^-'1 SUBJECT: PROCESS TO FILL COUNCIL VACANCY RECOMMENDATION Approve a process to fill the vacancy on the City Council resulting from the election of Council Member Jan Marx to the Office of Mayor. DISCUSSION On November 2, 2010, Council Member Jan Marx was elected to the Office of Mayor. As a result a Council Member vacancy exists. The City's Charter and Council's Policies and Procedures govern the process for filling City Council vacancies. Pursuant to Charter Section 406 (Attachment 1), the Council by a majority vote of its remaining members ("the new Council") "...shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term or new term takes office." Should the new Council successfully nominate and appoint an applicant, the City Clerk could immediately administer the Oath of Office to the newly appointed Council Member. If the Council fails to fill the vacancy within thirty (30) days following its occurrence, it shall call a special municipal election to fill the vacancy, to be held not sooner than ninety (90) days or not later than one hundred and fifty(150) days following the occurrence of the vacancy. In this case, the election could occur no sooner than March 1, 2011, and no later than April 30, 2011. Section 3.3 of Council Policies and Procedures (Attachment 2) outlines a specific process for conducting an appointment to the City Council. Staff must publish a legal notice advertising the vacancy at least 10 days prior to holding a meeting to select a replacement member. The minimum qualifications for appointment are residency in the City at least 30 days prior to appointment and elector status at the time of appointment. Each applicant is encouraged to submit a 200-word statement of qualifications stating the amount of time available each week to devote to the Council, reasons for wanting to be appointed, involvement in community affairs and organizations, especially in the preceding 23-month period, personal qualifications for the position, and prior experience in government, or areas associated with or doing business with government. Council Policies and Procedures require that application materials be made available to the public and Council at least four days prior to the public meeting to consider appointment. Thus, the earliest date and time the public meeting can be scheduled is Friday, December 17, 2010, at 11:00 a.m. If Council wishes to schedule the meeting on December 17, staff would recommend that Council direct that applications and written statements of qualifications must be submitted to the City Clerk between 8:00 a.m., Friday, December 3, 2010 and 10:00 a.m., Monday, December B3-1 Council Agenda Report—Appointment to Fill Council Vacancy Page 2 13, 2010. Statements submitted by the deadline would be made available to the Council and the public by 10:30 am., Monday, December 13, 2010. If Council wishes to hold the public meeting at a later date, or extend the application period or public review period, Council should give direction to staff regarding the desired meeting date and the associated application and review periods. Council Policies and Procedures also specify how the public meeting is to be conducted. During the meeting, each applicant is to be given five minutes to make a presentation to Council and will be asked to verify their willingness to serve. After all speakers have concluded, the Mayor will return discussion to the Council and open the floor to nominations, which are to be done audibly in public. While the Council Policies and Procedures provide that members of the public may submit written comments at any time until 24 hours before the meeting, the City Attorney has advised that public comment on the appointment should be accepted at any time prior to the Council making nominations and taking action. Council may prescribe a set amount of time for public comment at the meeting if there is a large applicant pool and Council wishes to manage the meeting time. There are some other details that are not specified in the Council Policies and Procedures that the Council may wish to consider. The first is requiring the submission of an application form similar to the one in Attachment 3. This will give the Council a common format to gather background information and a statement of interest from those who are applicants for the vacancy. The second item for council consideration is whether to require a resume to be attached to the letter of interest. Lastly if the council would like some sort of listing of the applicants such direction should be provided to staff. It has been mentioned that it might be helpful for the council to have a standardized format for council members to make notes about the candidates. One possibility is a spreadsheet with the names across one axis and empty boxes along the other axis but staff would like direction whether this would be helpful before putting it together. Past Practices for Narrowing Applicant Pool The Council Policies and Procedures do not specify the manner in which Council is to narrow the applicant pool to arrive at consensus, but staff's review of the records of past appointments did disclose a procedure that seemed to have been efficient and effective. In past proceedings, each Council Members was asked to vote for his or her top three or five applicants. That number is not prescribed and may be defined by Council based on the number of applicants seeking consideration. Staff would suggest that each Council Members provide five nominations each if the applicant pool is 10 or fewer and three nominations if the applicant pool is larger than eleven, but Council may provide alternate direction. Staff recommends that the audible votes by Council Members be recorded by the City Clerk which will be projected for public view while the City Clerk tallies the results. However, Council may direct an alternate approach for the recording and tallying of votes, so long as the method chosen is public. Once the nominations are tallied, it is recommended that the names of those who receive at least three votes be further discussed by Council Members until a choice is made. If no consensus is reached, Council could conduct a further round of voting with each Council member voting for a T:\Council Agenda Reports\City Clerk CAR\12-01-10 Appointment to Fill Council Vacancy Final.doc B3-2 Council Agenda Report—Appointment to Fill Council Vacancy Page 3 lesser number of the remaining applicants (i.e. each Council Member voting for three applicants in the second round, if they voted for five in the first round). If Council is able to reach a decision through this process, with only one candidate receiving three votes, the City Clerk will immediately administer the Oath of Office to the newly appointed Council Member. A similar process was successfully employed when filling the Council vacancy in December 1994 and September 1998. If Council is unable to reach a decision, Council could adjourn the meeting to a subsequent meeting within 30 days of the occurrence of the vacancy (Monday, January 3rd), or call for a special election. In summary the following direction is required in order to move forward with the appointment of a new council member: 1. Pursue an appointment to fill the council vacancy; 2. Confirm Council's intent to follow Council Policy and Procedures concerning the appointment to a council vacancy (advertise for 10 days; close application period at 10 a.m. on December 13, 2010; encourage a 200-word statement on qualifications; have applications available for 4 days before the date to consider nominations for appointment to the council vacancy, allow submission of written comments by the public as well as public comments at the meeting in accordance with the Brown Act); 3. Set a date to consider applicants (may be no sooner than December 17, 2010 at 11 a.m. if process outlined in#2 above is confirmed); 4. Request an application similar to Attachment 3 be submitted by each applicant; 5. Request a resume to be included in the application package from each applicant; 6. Direct staff to prepare a list of all of the candidates to be distributed to the council; 7. Decide if the council will follow the nomination and voting process outlined above (nominate 3 or 5 applicants depending on the number in the applicant pool followed by a vote to narrow to candidates who receive 3 votes, followed by successive rounds of voting if needed). 8. Confirm the Council's desire to have the selected candidate be seated immediately after selection by the Council. CONCURRENCES The City Manager and City Attorney both concur with staff's recommendation. FISCAL IMPACT If the Council makes an appointment to fill this vacancy, there will be minimal fiscal impacts. However, a special election, conducted for the City by Martin & Chapman, election contractor, is estimated to cost from $67,500 — $81,000. This would be an all inclusive cost that would cover T:\Council Agenda Reports\City Clerk CAR\12-01-10 Appointment to Fill Council Vacancy Final.doc B3-3 Council Agenda Report—Appointment to Fill Council Vacancy Page 4 the printing, postage and mailing of ballots, consulting, polling place supplies, ballot counting equipment, etc. The County Registrar of Voters Office has given an estimate of $38,960 - $48,400. This amount would only include the cost for printing and mailing of the ballots. The County Clerk has confirmed that there are no elections scheduled March 1, 2011, thru April 30, 2011, and has not committed to assisting the City with an election at this time. The estimates above do not include City staff time or additional assistance in the City Clerk's office. In addition to contracting with Martin & Chapman during the April 2005 Special Election, the City contracted with a retired City Clerk to assist with the internal operations of the election. That was an additional cost of$21,000. ATTACHMENT 1. Charter Section 406 2. Council Policies and Procedures Section 3.3 3. Application for Appointment T:\Council Agenda Reports\City Clerk CAR\12-01-10 Appointment to Fill Council Vacancy Final.doc B3-4 _ ATTACHMENT 7 SECTION 404. Terms of Office. (A)The term of the Mayor shall be two years,and the terms of the Council Members shall be four years. (B) Terms shall commence on the first day of December at twelve o'clock noon following the election and each shall serve until a successor is elected or appointed and qualified. Ties in voting shall be settled by the casting of lots. SECTION 405. Limitation of Terms. Neither the Mayor nor any member of the Council shall serve in the same office for more than eight(8)years in succession;provided,however,that any time in office resulting from a partial term which is less than one-half (1/2) the length of the full term for that office, shall not be considered. SECTION 406. Vacancies. An elective office becomes vacant when the incumbent thereof dies, resigns, is removed from office under recall proceedings, is adjudged insane, convicted of a felony, or of an offense involving a violation of the Mayor or Council Member's official duties,or ceases to be a resident of the City, or has been absent from the State without leave granted by the City Council for more than sixty (60) consecutive days, or fails to attend the meetings of the Council for a like period without being excused there from by said body. A vacancy in the Council shall be filled for the remainder of the unexpired term, if any, at the next regular municipal election following not less than seventy-two (72) days upon the occurrence of the vacancy, but the Council by a majority vote of its wining members shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term or new term takes office. If the term still has two (2) years until expiration at the time of the next regular municipal election, the election to that seat shall be separated from the election for the other Council candidates. If the Council fails to fill the vacancy within thirty (30) days following its occurrence, it shall call a special municipal election to fill the vacancy,to be held not sooner than ninety (90) days or not later than one hundred and fifty (150) days following the occurrence of the vacancy. The election shall be governed by the provisions of Article III. A person elected to fill a Council vacancy for an unexpired term shall take office on the first Tuesday following his election. Notwithstanding any other provisions of this Charter, a minority of the members of the Council may fill vacancies on the Council by appointment in the event that a majority of the Council seats becomes vacant. 5 B3-5 - ATTACHMENT 2 CHAPTER 3 COUNCIL POWERS& APPOINTMENTS 3.1 MAYOR-POWER AND DUTIES 3.1.1 The Mayor shall preside at all meetings of the City Council and perform such other duties consistent with the office as may be imposed by the Council or by vote of the people. The Mayor shall be entitled to,and must vote when present,but shall possess no veto power. As presiding officer of the Council,the Mayor will faithfully communicate the will of the Council majority to the City Manager in matters of policy. (Charter §407) 3.1.2 The Mayor shall present an annual work program to the Council for its consideration at the first meeting in May. The Mayor shall have the responsibility for forwarding the work program approved by the Council. The Mayor should submit the annual work program at the beginning of the budget process to allow incorporation into the Council goal-setting process. (Charter§407) The Mayor shall be recognized as the official head of the City for all ceremonial purposes,and by the Governor for military purposes. In time of public danger or calamity,the Mayor shall take command of the public forces,maintain order,and enforce laws. (Charter§407) 3.1.3 The Mayor may order flags flown on City property to be lowered to half-staff in mourning for any member of the community designated to have made significant contributions to the City of San Luis Obispo,in accordance with recognized customs or practices not inconsistent with State and Federal law. 3.1.4 The Mayor shall exercise such other powers and perform such other duties as may be prescribed by law or ordinance or by resolution of the Council,except as limited by this Charter. (Charter§407) 3.2 APPOINTMENT OF VICE MAYOR The appointment of the Vice Mayor shall be for a one-year term and is made on a rotational basis, the appointment going to the next senior member. The Vice Mayor shall be appointed at the first meeting in December. 33 FILLING COUNCIL VACANCIES 33.1 APPOINTMENT OR SPECIAL ELECTION Per City Charter Section 406,the Council shall by a majority vote of the remaining Council Members,appoint a replacement member to the Council within 30 days of the occurrence of Council Policies&Procedwes Manual 2008 Page 19 B3-6 'ATTACHMENT 2 the vacancy. If the Council fails to fill the vacancy within thirty(30)days of its occurrence, it shall call a special municipal election to fill the vacancy,to be held not sooner than ninety (90)days or not later than one hundred and fifty(150)days following the occurrence of the vacancy. 33.2 PUBLIC APPOINTMENT In order that the public may know how its business is being conducted,all phases of the Council process to appoint a replacement member to a vacancy shall be conducted in public. . 3.3.3 ADVERTISE FOR APPLICANTS At least ten days before Council meets the first time to select a replacement member for a vacancy,the City shall advertise in a local newspaper of general circulation describing the vacancy and tern thereof,requesting applications from those persons interested in being appointed. 33.4 QUALIFICATIONS Although the only two established minimum qualifications for appointment are(1) residency in the City for at least 30 days prior to appointment,and(2)elector status at the time of appointment(Charter§403),each applicant shall be encouraged to submit a written statement of 200 words or less covering at least the following areas: 3.3.4.1 The amount of time available each week to devote to the Council. 3.3.4.2 Reasons for wanting to be appointed. 3.3.4.3 Involvement in community affairs and organizations,especially in the preceding 23-month period. 33.4.4 Personal qualifications for the position. 3.3.4.5 Prior experience in government,or areas associated with or doing business with government. 33.5 PUBLIC MEETING 3.3.5.1 At a time(s)selected by the Council, a meeting open to the public shall be held by the Council to consider the selection of an applicant to fill the vacancy. 3.3.5.2 The applications shall be given to the Council and be available to the public at least four days before the opening of the meeting. Council Policies&Procedures Manual 2008 Page 20 B3-7 j ATTACHMENT 2 3.3.5.3 Members of the public may submit written comments regarding an application at any time up to 24 hours before the meeting begins. 3.3.5.4 At the meeting,each applicant wishing to serve should be present to verify that he/she would be willing to serve if appointed,and that he/she is a resident of the City. Each candidate will be given five minutes to make a presentation to Council. 3.35.5 Thereafter,all discussion shall be confined to the Council except for questions directed by the Council to staff or to members of the public. 3.3.5.6 Upon the conclusion of such discussion,the Mayor shall open the floor to nominations by the remaining Council Members. All nominations, seconding,and voting,shall be done audibly in public. 3.3.5.7 If Council is unable to reach Consensus on the appointment and further consideration is required, Council may adjourn the initial meeting to a subsequent meeting within 30 days of the occurrence of the vacancy to attempt to reach a decision. 3.4 GENERAL POWERS OF THE COUNCIL Subject to the provisions and restrictions contained in the Charter and the delegation of power, if any,to any person,officer,Board,or Commission,the Council shall have the power in the name of the City,to do and perform all acts and things appropriate to a municipal corporation and the general welfare of its inhabitants and that are not specifically forbidden by the Constitution and laws of the State of California,or which now or hereafter would be competent for the Charter to specifically enumerate. No enumeration or specific statement herein of any particular powers shall be held to be exclusive of,or a limitation of,the foregoing general grant of powers. (Charter Section 501) 3.5 ADNWOSTERING OATHS: SUBPOENAS Each member of the Council shall have the power to administer oaths and affirmations in any investigation or proceeding pending before the Council. The Council shall have the power and authority to compel the attendance of witnesses,to examine them under oath and compel the production of evidence before it. Subpoenas may be issued in the name of the City and be attested by the City Clerk Disobedience of such subpoena or the refusal to testify(upon other than constitutional grounds), shall be deemed contempt and shall be punishable as provided by the general laws of the State. (Charter§ 507) Council Policies&Procedures Manual 2008 Page 21 B3-8 �~ ATTACHMENT 3 SAN LUIS OBISPO CITY COUNCIL APPLICATION FOR APPOINTMENT Position: City Council Member Date: Name: Residence Address: 1. Section 403 Eligibility for Office of the City Charter stipulates the following eligibility criteria for appointment: No person shall be eligible for election to, or to hold, the office of Mayor or Council Member of said City unless said person is and shall have been a resident thereof, or of territory legally annexed thereto, on or prior to the date of such election or appointment, for at least thirty (30) days next preceding said person's election thereto or appointment to fill a vacancy therein, and is an elector thereof at the time of such election or appointment. Include a statement as to why you are interested in this position and why you believe the City Council should appoint you. Please limit your response to no more than two typewritten pages. 2. It is encouraged to submit a written statement of 200 words or less covering at least the following areas (CP&P Section 3.34): ➢ The amount of time available each week to devote to the Council. ➢ Reasons for wanting to be appointed. ➢ Involvement in community affairs and organizations, especially in the preceding 23- month period. Personal qualifications for the position. ➢ Prior experience in government, or areas associated with or doing business with government 3. Please submit the written statement with the Application for Appointment. 4. The Political Reform Act of 1974 stipulates that the appointed Council Member is required to file a Form 700 - Statement of Economic Interest. I have read and hereby certify that I meet the eligibility criteria for appointment stipulated under the above City Charter Section 403 and will comply with all reporting requirements. Signature Date CANDIDATES ARE ENCOURAGED TO ATTEND THE PUBLIC HEARING ON XXX, DECEMBER XX, 2010, AT XX:XX X.M. TO BE CONSIDERED FOR APPOINTMENT. B3-9 I From: Marta Peluso[SMTP:DIRECTOR@SLOARTSCOUNCIL.ORG] RECEIVED Sent: Monday, November 29, 2010 12:11:26 PM To: Council, SloCity NOV 3 0 2010 Cc: Ann Ream Subject: Vacant Council Seat SLO CITY CLERK Auto forwarded by a Rule Dear SLO City Council Members: Soon you will be filling a Council seat left vacant by the election. We are writing to encourage you to select someone who is arts friendly and has shown support for the City's arts programs, especially the Public Art program. Art in Public Places (APP) has become an integral part of the streets and sidewalks of this community. Without it, the City is in jeopardy of losing its vitality and economic potential. Selecting someone with familiarity with the City's existing arts programs would compliment the current and newly elected Council members. ARTS Obispo, San Luis Obispo County Arts Council, urges you to consider these elements when the selection process begins. Thank you. Sincerely, Marta Peluso, Executive Director Ann Ream, Chair, Arts in Public Places RED FILE Marta Peluso, Executive Director ARTS Obispo MEETING AGENDA (805) 544-9251 DATE—/.2L/-LIP– ITEM # 83 www.artsobispo.org Burma (Myanmar) Photographs by Sky Bergman ARTS Space Obispo Artist's Happy Hour Talk: Thu., Dec. 2, 5:30 - 7 PM hard covv. emwk o COUNCIL o CDD MR o CrIYMOR 12 FfrOM o AMCM o FLUCHM o MORNBY o PW OIR e CIBRBI= o POLICE CNIBP o PM 0PARBSARSC VIR o TRIRUNR o UMMR o NRWTDM oNROM o SIACrIYNEN o COUNCIL o CIN NOR o CL�tK From: Dan Carpenter[SMTP:DANCARP54@CHARTER.NET] RECEIVED Sent: Monday, November 29, 2010 9:51:24 PM To: Council, SloCity Subject: Appointment to City Council NOV 3 0 2010 Auto forwarded by a Rule SLO CITY CLERK To: SLO City Council I look forward to attending the December 1st special council meeting. Congratulations again to all of you who will be sworn in on that day. From the staff report, I realize that December 17th is the first possible date for the appointment hearing. I would encourage you to adopt the December 17th date if possible and not let it go into the following week. Many people will be out of town the week of December 20th, and I'm sure you want to give the public the opportunity to speak during the process. The CHC has had to reschedule it's regular meeting that week for precisely the same reason. I am in support of the City's Charter Section 406 that states "the new Council shall appoint a qualified person to fill the vacancy". I do not endorse a special election to fill this position. To allow a special election would be irresponsible based on the fiscal constraints facing the City. Equally important, an election would delay the swearing in of the new Council member until March or April. I believe it would be in the best interest of the City to have this person in place on Council before January when the Budget and Goal setting process begins. Thank you. Dan Carpenter San Luis Obispo hard co email o COUNCIL °CDD DIR ° CITY MGR °FrrDIR ° AWCM a FDIECHIEF o ATTORNEY °PW DIR ° CLERElORIG °POLICE CHIEF ° M aPAM&REC DIR RED FILE ° TRIEUNE . °UMDM O NEW TWES °HR DIR ° SLO CrrY NEWS °COUNCIL MEETING AGENDA o CTnMGR DATE It iv °� .. .� ITEM # �3 RECEIVED EGA bard copr. : NOV 3 2010 0 COUNCIL 0 CDD DIR MEMORANDUM 0 CITY MGR CMDIR RED FILE ° AMCM 0 FIRE CHIEF 0 ATTORNEY 0 PW DIR SLO CITY CLERK 0CLERKIORIG aPOLICE CHIEF MEETING AGENDA 0 PIB 0 PARRS&RECDIR To: City Council 0 11 0 UTILDIR From: Jan Marx and Andrew Carter DATE± 11V ITEM # n �� oHRDR�, IL Re: Appointment Process 0 Crry MGR Date: December 1, 2010 Special Meeting B3 °CLERK To appoint someone to serve out the remaining two years of Jan Marx's unexpired Council Term, we would like to propose the following procedural guidelines for your approval. 1. The City Clerk will publish notice of said vacancy December 3, 2010 and open the application process. 2. Prospective applicants will fill out an application form and submit a two hundred-word letter of application and a resume between 8:00 am December 3, 2010 and December 13, 2010 at 5pm. 3. After the application period closes, staff will confirm that each candidate meets the residency and voter registration requirements and will then distribute copies of all valid applications and resumes, as well as a list of applicants to Council. Copies of said documents will be considered public documents when submitted. 4. Each council member will individually read and evaluate the application letters and resumes. If a council member has a question for one or more candidates, the question(s) should be addressed to the individual applicant with an understanding that each council member will make a report at the public hearing about the conversations with the applicants (see#6 below). 5. A special meeting of the Council will be called for December 21, 2010, at 7pm with the only item on the agenda the Council appointment. There would be no public comment regarding items not on the agenda. 6. At the meeting, there will be a brief staff report. Prior to hearing from applicants, council members will be asked to disclose any ex parte communications with individual applicants including a general explanation of the substance of any communications.Then, each applicant will make an oral presentation of no more than five minutes duration. There will be no questions from council members of applicants, since there will have been ample time for council members to have asked in the week between close of application and the meeting. Then, public testimony will be heard. 7. After public testimony the matter will be brought back to City Council for deliberation. In a straw vote, each council member will announce and the City Clerk will record a list of up to three applicants that they can support, in alphabetical order. If 3 or more council members name the same applicant and only one applicant receives 3 straw votes, then the Mayor will call for a motion to appoint that person. If more than one applicant receives 3 or more votes, then these applicants should be further discussed until an appointment is made(either via more straw votes of a favored applicant from each council member or consensus from deliberations, the method to be determined at the special meeting). If no candidate gets 3 or more votes, then the council can expand the list by engaging in additional rounds of listing applicants. Any applicants identified in the first round would continue to be considered if there are two or more straw votes in his or her favor.At any time during the straw vote process a council member could change his or her mind regarding an acceptable applicant and express support for any applicant. Motions could be made in favor of any at any time. 8. If an applicant is voted in by at least three Council Members, then he or she should be sworn in and seated immediately after selection by Council. 9. If, on the other hand, council members are unable to agree on appointment, then a motion would be entertained to hold a special election. I �\I RECEIVE® From: Carol Rich [CRich@liveeyewear.com] DEC 0 2 2019 Sent: Wednesday, December 01, 2010 11:31 AM To: Marx, Jan; Ashbaugh, John; Smith, Kathy; Carter, Andrew SLO CITY CLERK Subject: City Council Appointment Dear Mayor Marx and City Council Members- I am writing to express my support for the Council seat appointment process as outlined in our SLO City Charter. With the very substantial budget shortfall facing San Luis Obispo, I believe most citizens would not appreciate the additional expense that a special election could bring. Yesterdays letter to the editor by Patty Andreen, reminded me of how well past appointments have worked -Allen Settle, Ken Schwartz and Kathy Smith have all done a commendable job in helping to make our city a great place to live. As far as the campaign by certain individuals to discount ones right to run for office midway through their term-let me just say that I for one, am glad that Jan Marx made the decision to run for mayor- especially given what the result might have been otherwise. Thanks to all of you for giving so generously of your time. I trust your judgment and ability to choose wisely in appointing the next member to our City Council. Best Regards, Carol Rich Carol Rich Catalog/Ecommerce Manager Live Eyewear 3490 Broad Street San Luis Obispo, CA 93401 ph 805-782-6428 1 800-834-2563 fx 800-654-7432 www.liveeyewear.com<http: //www.liveeyewear.com/> ADDl77a n)A,L �o22�S'P�.�✓T E /P////o 0C Adoe n vG CNrtL CN From: Lee BeDell [SMTP:GLBEDELL@CHARTER.NET] RECEIV Sent: Sunday, November 28, 2010 3 :03 :17 PM NOV 2 9 2010 To: Council, SloCity Subject: Kevin P. Rice Auto forwarded by a Rule SLO CITY CLEr, , Dear San Luis Obispo City Council Members, Thank you for being fiscally responsible. My husband and I have concerns about Kevin P. Rice being appointed to the vacant City Council seat. He currently has a IRS tax lien filed in San Luis Obispo County. He also recently lost a trademark case in Federal Court on October 28, 2010. The Federal Judge calls his actions a sham (please review attachments) . We have a rental property in San Luis Obispo at 1327 Pacific and appreciate sound fiscal decisions and honest civil discourse. We urge the council not to appoint Kevin P. Rice. Respectfully, Geri and Lee BeDell hard coyr. a Nfl- RED FILE a COUNM aCMD DM a a fMGR aFRDUt MEETING AGENDA aAmcm a MECHW a MMRMEY a PWM DAT �c ITEM # B3 a CLa=1UG a PDUCECHF a PM aPAWaUCDUt a UM ME a UTMDUt o nvTom a NRDtR a SWC[TYNM 000UNCD. a COY MGR a CUMK Recording Requested By Internal Revenue Service.when recorded mail to: JULIE RODEWALD LQ INTERNAL REVENUE SERVICE San Luis Obispo County-Clerk/Recorder 12115/2008 AM PO BOX 145585, STOP 8420G Recorded at the request of 8 *22 CINCINNATI, OH 45250-5585 Internal Revenue Service. D o C a: 2008061588 Tines: 1 Pages: 1 81 IIIII�I�I!8111�111{IIII{I{I IIIII oFees 0.00 thers 0.00 0.00 PAID $8.00 For Optional use by rtecoreing voice Form 668 (Y)(c) 3625 Department of the Treasury - Internal Revenue Service (Rev.February 2004) Notice of Federal Tax Lien Area: SMALL BUSINESS/SELF EMPLOYED AREA i17 Serial Number Lien Unit Phone: (800) 913-6050 499448008 As provided by section 6321, 6322,and 6323 of the Internal Revenue Code,we are giving a notice that taxes (including interest and penalties) have been assessed against the following-named taxpayer. We have made a demand for payment of this I1abiRty,but it remains unpald. Therefore,there Is a Ren In favor of the United States on all property and rights to property belonging to this taxpayer for the amount of these taxes, and additional penalties,interest,and costs that may accrue. Name of Taxpayer KEVIN P RICE Residence PO BOX 14107 SN LUIS OBISP, CA 93406-4107 IMPORTANT RELEASE INFORMATION: For each assessment listed below,unless notice of the lien is refiled by the date given in column(e),this notice shall,on the day following such date,operate as a certificate of release as defined in IRC 6325(a). Tax Period Date of Last Day for Unpaid Balance Kind of Tax Ending identifying Number Assessment Refiling of Assessment (a) (b) (c) d e (f) 1090 12/31/2003 XXX-XX-3273 03/19/2007 04/18/2017 74664 .45 1040 12/31/2004 XXX-XX-3273 12./10/2007 01/09/2018 3184.06 Place of Filing COUNTY RECORDER SAN. LUIS OBISPO COUNTY Total $ 77848.51 SAN LUIS OBISPO, CA 93408 _ This notice was prepared and signed at OAKLAND, CA on this, the_ 04th day of December , _2008. SignatureTitle REVENUE OFFICER 27-05-3404 for LOIS TRASK (805) 352-0340 (NOTE: Certificate of officer authorized by law to take acknowledgment is not essential to the validity of Notice of Federal Tax lien Rev.Rul. 71-466, 1971 -2 C.B.409) Form 668(Y)(e) (Rev.2.2004) Part 1 .Kept By Recording Oma CAT.NO 60025X END OF DOCUMENT Case 2:10-cv-03258-JST A Document 31 Filed 10/28/10 i,_je 1 of 10 Page ID #;275 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice Present: Honorable JOSEPHINE STATON TUCKER, UNITED STATES DISTRICT JUDGE Ellen Matheson N/A Deputy Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF` ATTORNEYS PRESENT FOR DEFENDANT: Not Present Not Present PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFF NELL E. LANGFORD'S MOTION FOR SUMMARY JUDGMENT (Doc. 12) AND DENYING DEFENDANT KEVIN P. RICE'S MOTION FOR SUMMARY JUDGMENT (Doc. 19) I. INTRODUCTION Plaintiff Nell Langford filed suit against Defendant Kevin Rice seeking (1) cancellation of Rice's Federal Trademark "Safe Beach Now®," registration number 3,716,688 (...688 mark"), (2) a preliminary and permanent injunction preventing Rice from interfering with Langford's use of the Safe Beach Now mark, and (3) declaratory judgment of trademark non-infringement as to the `688 mark. (Compl., Doc. 1,¶¶ 15- 23.) Rice responded with an Answer denying Langford's allegations and asserting multiple affirmative defenses. (See Answer, Doc. 6.) Langford and Rice now separately move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. (Docs. 12 & 19). Each has filed an opposition (Docs. 20, 21 & 28), and Langford has filed a reply (Doc. 27). Having reviewed the briefs, heard the parties' oral arguments, and taken the matters under submission,the Court GRANTS Langford's Motion for Summary Judgment, DENIES Rice's Motion for Summary Judgment, and ORDERS the cancellation of the `688 mark. CV-90 (10/08) CIVIL MINUTES—GENERAL 1 Case 2:10-cv-03258-JST -A Document 31 Filed 10/28/10 ,_.ge 2 of 10 Page ID #:276 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice II. BACKGROUND This trademark dispute arises out of the use of the mark "Safe Beach Now." The undisputed facts follow.' Plaintiff Langford has been a resident of Pismo Beach, California since 1976 and has actively participated in various community issues since then. (Langford Decl., Doc. 12-2, ¶ 3.) Specifically, for the past two decades, Langford has publicly expressed her concern about off-road vehicle use at the Oceano Dunes beach area in San Luis Obispo County. (Id. 15.) In 2001, Langford started a community organization called Safe Beach Now, which focuses on disseminating information about the dangers of off-road vehicle activity in Oceano Dunes. (Id. IT 6-7.) Since then, Langford has used the Safe Beach Now mark in conjunction with her community activism efforts. (Id. ¶ 10.) For example, Langford obtained the Internet domain names www.safebeachnow.com, www.safebeachnow.net, and www.safebeachnow.org to aid in her organization's outreach. (Id. T$ 7-9, Exh. I.) Langford has also appeared in several publications, at public meetings, and at public demonstrations displaying Safe Beach Now signage and serving as a representative of the Safe Beach Now organization. (Id. ¶¶ 10-16, 19-20, Exhs. 2-11.) Defendant Rice is a resident of San Luis Obispo and also disseminates information, often at odds with Langford, about off-road vehicle use at Oceano Dunes. (Rice Decl., Doc. 24, ¶¶ 2-6.) For example, on May 3, 2007, Rice videotaped a public demonstration staged by Langford and the Safe Beach Now organization, and published a video entitled, "The Langford Files—It's Sleazy Being Green" on YouTube. (Langford Decl. 112-13, Exh. 4; Rice Decl. ¶ 8.) On September 7, 2007, Rice also submitted a letter to the editor of the Times Press Recorder, a local newspaper, entitled"Group Can't Have It Both Ways," in which he specifically indentified Langford and others from the Safe Beach Now organization. (Langford Decl. ¶ 17.) Rice claims to develop and disseminate "safety information" about Oceano Dunes through a"commercial enterprise." (Rice Decl. ¶ 6.) Rice alleges that, since July 9, 2007, he has sold informational safety brochures bearing the Safe Beach Now mark, (id. Because Langford and Rice failed to follow the Court's specific instructions regarding the presentation of statements of undisputed facts and genuine issues for summary judgment motions, (see Initial Standing Order, Doc. 14,¶ 10(c)(i),)the Court derives the facts from the parties' respective declarations. (Doc. 12-2, "Langford Decl."; Doc. 24, "Rice Decl.") CV-90 (10/08) CIVIL MINUTES—GENERAL 2 Case 2:10-cv-03258-JST`-._ A Document 31 Filed 10/28/10 je 3 of 10 Page ID #:277 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice ¶ 10,) and has advertised and disseminated information through two Internet domain names: www.safebeachnow.info and www.safebeachnow.us. (Id. ¶ 11.) On April 20, 2010, Rice obtained the `688 mark. (Id., Exh. 12.) Four days later, Rice sent Langford a letter alleging trademark infringement for Langford's use of the Safe Beach Now mark in her above-referenced websites and community activism. (Compl., Exh. 1.) Rice demanded that Langford disable or delete all content from her websites, and transfer her Internet domain names to him. (Id.) In response, Langford filed suit against Rice seeking cancellation of the `688 mark, a preliminary and permanent injunction precluding Rice from interfering with her use of the Safe Beach Now mark, and declaratory judgment of non-infringement of the `688 mark. (Id. at 3-4.) The parties then filed cross-motions for summary judgment addressing the validity and enforceability of the `688 mark. (See Docs. 12 & 19).2 Langford's Motion for Summary Judgment(Doc. 12) seeks to cancel the `688 mark based on Langford's alleged prior use of the Safe Beach Now mark and because Rice's trademark application allegedly contained fraudulent and inaccurate information. (Pl.'s Mem. Pts. & Auth. in Supp. Mot. Summ. J. ("Pl.'s MPA"), Doc. 12-1, at 6-7.) Rice responds3 that Langford failed to make protectable commercial use of the Safe Beach Now mark and, moreover, her claims are barred by res.judicata, estoppel, laches, and unclean hands. (De£'s Mem. Pts. & Auth. in Opp. to Pl.'s Mot. Summ. J. and in Supp. Def.'s Mot. Summ. J. ("Def.'s MPA"), Doc. 20, at 6-9.) In reponse, Langford re- asserts the arguments in her moving papers and further argues that the `688 mark is invalid and unenforceable because Rice has failed to make use of it"in commerce." (Pl,'s Opp. to Def. Mot. Summ. J., Doc. 28, at 3-5.); see 15 U.S.C. §§ 1051(a)(1), 1051(b)(1), and 1127 (requiring"use in commerce" to establish trademark rights). z Langford's Complaint does not allege common law trademark infringement. (See Compl.) Therefore, the only question before the Court is the validity and enforceability of Rice's `688 mark. 3 Rice filed a single "Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment." (Doc. 20.) Rice's arguments against Langford's Motion and for his own are therefore one and the same. CV-90 (10/08) CIVIL MINUTES—GENERAL 3 Case 2:10-cv-03258-JST '. A Document 31 Filed 10/28/10 !. _fie 4 of 10 Page ID *278 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice III. LEGAL STANDARD In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is proper"if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law" Fed. R. Civ. P. 56(c). A factual issue is "genuine" when there is sufficient evidence such that a reasonable trier of fact could resolve the issue in the non-movant's favor, and an issue is "material" when its resolution might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non- moving party to "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). IV. DISCUSSION District courts have the authority "[i]n any action involving a registered mark . . . [to] determine the right to registration, order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register . . . ." 15 U.S.C. § 1119. A registered trademark is presumptively valid, Quiksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th Cir. 2006), but if a challenging party "can demonstrate through law, undisputed facts, or a combination thereof that the mark is invalid, the evidentiary bubble bursts and the [trademark owner] cannot survive summary judgment." Talking Rain Beverage Co. v. S. Beach Beverage Co., 349 F.3d 601, 603 (9th Cir. 2003) (quoting Tie Tech, Inc. v. Kinedyne Corp., 296 F.3d 778, 783 (9th Cir. 2002)). "[O]nce the presumption of validity afforded a registered trademark has been rebutted, mere registration does not enable a trademark holder to survive summary judgment." Talking Rain Beverage Co., 349 F.3d at 603. Here, Langford argues that Rice's `688 mark should be cancelled because of Rice's fraudulent trademark application and his failure to use the mark in commerce. (Pl.'s MPA at 6-7; Pl.'s Opp. to Def. Mot. Summ. J. at 3-5.) The court reviews these arguments in turn. CV-90 (10/08) CIVIL MINUTES—GENERAL 4 Case 2:10-cv-03258-JST i. _A Document 31 Filed 10/28/10 je 5 of 10 Page ID #:279 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice A. Fraud "Fraud is one of the enumerated grounds for challenging an uncontestable mark." Protech Diamond Tools, Inc. v. Liao, No. C08-3684, 2009 WL 1626587, *8 (N.D. Cal. June 8, 2009);see 15 U.S.C. § 1115(b)(1). "Fraud in procuring a mark occurs when an applicant knowingly makes false, material representations of fact in connection with an application." Quiksilver, 446 F.3d at 755 (quoting L.D. Kichler Co. v. Davoil, Inc., 192 F.3d 1349, 1351 (Fed. Cir. 1999)); see Pony Express Courier Corp. ofAm. v. Pony Express Delivery Serv., 872 F.2d 317, 319 (9th Cir. 1989) ("[T]o prove fraud that would result in the cancellation of[a trademark], there would have to be a material misrepresentation in the affidavit on the basis of which the mark was registered."). Langford alleges that Rice committed fraud in obtaining the `688 mark by willfully making false statements of material fact on his trademark application. (See Compl. at 3,¶ 13; Pl.'s MPA at 7.) Specifically, Langford alleges that Rice (1) included a false first use date on the trademark application, (Pl.'s Stat. of Uncont. Facts and Concl. of Law at¶ 7,) and (2) signed a verified statement on the application that stated "to the best of the declarant's knowledge and belief, no other person . . . has the right to use the mark in commerce. . ." despite knowledge of Langford's prior use of the mark. (Pl.'s Opp. to Def. Mot. Summ. J., Doc. 28, at 3-5; Langford Decl. Exh. 12.) The Court is not persuaded. First, "[t]he claim of a date of first use is not a material allegation as long as the first use in fact preceded the application date." Pony Express, 872 F.2d at 319. It is undisputed that Rice's first use preceded his application date; thus, the first use date is not a material representation. See id. As a result, Langford's allegations regarding the veracity of the first use date cannot amount to fraud. See Quiksilver, Inc., 446 F.3d at 755. Second, the fact that Rice signed the verified statement, despite having knowledge of Langford's prior use of the Safe Beach Now mark, does not constitute fraud. The statement verifies only that, "to the best of[Rice's] knowledge and belief, no other person . . . has the right to use the mark in commerce . . . ." (Langford Decl. Exh. 12) (emphasis added). Langford never used the Safe Beach Now mark for commercial activities. (Pl.'s Stat. of Uncont. Facts and Concl..of Law at 13.) Even if Langford had, Rice's actions would still not have amounted to fraud. CV-90 (10/08) CIVIL MINUTES—GENERAL 5 Case 2:10-cv-03258-JST". —A Document 31 Filed 10/28/10 �,_ _.fie 6 of 10 Page ID #:280 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST(PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice In Quicksilver, when faced with the virtually identical claim, the court there held that "mere knowledge of the existence of the . . . mark does not constitute fraud" when a declarant states that"to the best of[the declarant's] knowledge and belief, no other person . . . has the right to use the . . . mark in commerce ... . ." Quicksilver, 466 F.3d at 755 (citing Yocum v. Covington, 216 U.S.P.Q. 210, 216-17 (T.T.A.B. 1982) ("[T]he statement of an applicant that no other person `to the best of his knowledge' has the right to use the mark does not require the applicant to disclose those persons whom he may have heard are using the mark if he feels that the rights of such others are not superior to his.") Because Langford does not establish that Rice was, in fact, aware that Langford had the right to use the mark in commerce, Langford's attempt to invalidate Rice's `688 mark for fraud fails. B. Use in Commerce Langford alleges that Rice's `688 mark should be cancelled because Rice has failed to use the Safe Beach Now mark in commerce. (Pl.'s Opp. to Def. Mot. Summ. J. at 3-5.) As noted earlier; although a registered trademark is presumptively valid, that presumption can be rebutted by"undisputed facts" and "mere registration does not enable a trademark holder to survive summary judgment." Talking Rain Beverage Co., 349 F.3d at 603. Under the Lanham Act, a person may register a trademark if it is "used in commerce" or if that person has "a bona fide intention, under circumstances showing the good faith of such person, to use [the] trademark in commerce . . . ... 15 U.S.C. § 1051(b)(1). The `688 mark satisfies neither prong and is therefore invalid. 1. Evolution of the Lanham Act and the "Use in Commerce" Requirement "Congress enacted the Lanham Act in 1946 in order to provide national protection for trademarks used in interstate and foreign commerce." Park `N Fly, Inc. v. Dollar Park&Fly, Inc., 469 U.S. 189, 193 (1985) (citing S. Rep. No. 1333, 79th Cong., 2d Sess., 5 (1946)). Four decades later, Congress amended the Lanham Act with the Trademark Law Revision Act (TLRA). Pub. L. No. 100-667, 101 Stat. 3925 (1988). Prior to the TLRA, "in order to qualify for federal registration, the extent of actual use of the mark was irrelevant so long as it amounted to more than a mere sham attempt to conform with statutory requirements." Chance v. Pac-Tel Teletrac, Inc., 242 F.3d 1151, CV-90 (10/08) CIVIL MINUTES—GENERAL 6 Case 2:10-cv-03258-JST ' __A Document 31 Filed 10/28/10 . _ je 7 of 10 Page ID #:281 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST(PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice 1157 (9th Cir. 2001) (quoting 2 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition, § 16:8 (4th ed. 1997)). With the enactment of the TLRA, "Congress changed the statutory definition of `use' so as to require a greater degree of activity." Id. (quoting 2 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition, § 16:8 (4th ed. 1997)). Today, the phrase "use in commerce" means "the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark." 15 U.S.C. § 11274; see 15 U.S.C. §§ 1051(a)(1), 1051(b)(1). The Ninth Circuit applies a "totality of the circumstances" test to determine if usage of a trademark qualifies as "use in the ordinary course of trade under § 1127." Electro Source, LLC v. Brandess-Kalt-Aetna Grp., Inc., 458 F.3d 931, 940 (9th Cir. 2006) (internal quotations omitted); see Chance, 242 F.3d at 1158-59; Brookfield Commc'ns, Inc. v. W Coast Entm't Corp., 174 F.3d 1036, 1052 (9th Cir. 1999). In applying the test, the Court considers the following factors: the genuineness and commercial character of the activity, the determination of whether the mark was sufficiently public to identify or distinguish the marked service[or product] in an appropriate segment of the public mind as those of the holder of the mark, the scope of the [trademark] activity relative to what would be a commercially reasonable attempt to market the service [or product], the degree of ongoing activity of the holder to conduct the business using the mark, 4 15 U.S.C. § 1127 states that: a mark shall be deemed to be in use in commerce on (1) goods when (A) it is placed in any manner on the goods . . . (B) and the goods are sold or transported in commerce, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services. 15 U.S.C. § 1127. CV-90 (10/08) CIVIL MINUTES—GENERAL 7 Case 2:10-cv-03258-JST '._.A Document 31 Filed 10/28/10 ' ,fie 8 of 10 Page ID #:282 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice the amount of business transacted, and other similar factors which might distinguish whether a service [or product] has actually been "rendered in commerce." Chance, 242 F.3d at 1159. "[T]oken use is not enough." Id. at 1157. "[M]ere adoption of a mark without bona fide use, in an attempt to reserve it for the future does not create trademark rights . . . . [O]wnership of a mark requires both appropriation and use in trade." Id. (quoting Signature Guardian Sys., Inc. v. Lee, 209 U.S.P.Q. 81, 87 (T.T.A.B. 1980)); cf. Electro Source, 458 F.3d at 939 ("Good faith nominal or limited commercial sales of trademarked goods are sufficient . . . to avoid abandonment, where the circumstances legitimately explained the paucity of the sales."). 2. Rice's Use of the `688 Mark Does Not Satisfy the Lanham Act's "Use in Commerce" Requirement To survive Langford's Motion for Summary Judgment, Rice must "set out specific facts showing a genuine issue for trial."' Fed. R. Civ. P. 56(e)(2). Here, Langford alleges that Rice has not made a bona fide use of the `688 mark in the ordinary course of trade to support the `688 mark registration. (Pl.'s Opp. to Def. Mot. Summ. J. at 4.) Langford points out that Rice has produced only"two handwritten receipts as evidence of his use of SAFE BEACH NOW mark in interstate commerce" (Id.; see Rice Decl., Doc. 24, Exh. 2.) Rice does not dispute this. In support of his Motion, Rice provides two receipts and two registered Internet domain names as evidence of the `688 mark's use in commerce. (Rice Decl. ¶ 11; Exh. 2.) The first handwritten receipt, dated July 9, 2007, memorializes a $20 sale of "Brochures: SAFE BEACH NOW" to Angello's ATV for cash, and is signed by Rice. (Id. Exh. 2.) The second handwritten receipt, dated April 21, 2009, similarly evidences a $20 sale of"SAFE BEACH NOW Brochures" to Broken Bikes, and appears to be initialed by Rice. (Id.) Rice included these safety brochures as the product specimen for his trademark application, which consisted of a photograph of"the first information safety brochures [Rice] created bearing the SAFE BEACH NOW mark." (Langford Decl. Exh. 12.) Rice also states that"[o]n November 25, 2007, [he] registered two Internet domain names . . . to create an Internet web presence with which to further advertise and disseminate news and safety information." (Rice Decl. ¶ 11.) CV-90 (10/08) CIVIL MINUTES—GENERAL 8 Case 2:10-cv-03258-JST' _ A Document 31 Filed 10/28/10 je 9 of 10 Page ID #:283 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice Beyond these facts; Defendant supplies no other evidence supporting the proposition that (1) he has used the `688 mark in the ordinary course of trade or(2) that he has a"bona fide intention to use"the `688 mark in commerce. 15 U.S.C. §§ 1127; 1051(b)(1). At oral argument, when asked if he had provided the Court all the information and documents he possessed regarding the `688 mark's use in commerce, Rice responded that, other than the two $20 brochure sales, he had "a couple more cash sales" but could not provide evidence of the exact amounts or dates of those sales. (10/18/2010 Transcript at 12-15.) Rice also alleged that he had "some web Internet advertising" and had "applied for some Internet ads . . . and [was] building a website . . . " (Id. at 13.) Rice provides no evidence of these claims, however, in his Motion. While a"single sale or shipment may be sufficient to support an application to register the mark," such sale or shipment must have "[I]the color of a bona fide transaction" and "[2][be] accompanied or followed by activities which would tend to indicate a continuing effort or intent to continue such use and place the product on the market on a commercial scale within a time demonstrated to be reasonable in the particular trade." Dept. of Parks & Rec.for Cal. v. Bazaar del Mundo, Inc., 448 F.3d 1118, 1126 (9th Cir. 2006) (quoting Chance, 242 F.3d at 1157). Here, Defendant's two sales on July 9, 2007, and April 21, 2009, lack the"color of a bona fide transaction,"see id., and appear to be a "mere sham attempt to conform with statutory requirements." Chance, 242 F.3d at 1157. Furthermore, these sales were not "accompanied or followed by activities that would tend to indicate a continuing effort or intent"by Rice to place any marked product or service in the market. See Dept. of Parks, 448 F.3d at 1126. Although Rice registered two Internet domain names nearly three years ago, and now maintains the website www.safebeachnow.us "to further advertise and disseminate news and safety information," (Rice Decl. ¶ 11,) the website offers no products or services for sale, nor does it contain any paid advertisements from any other commercial entity. See Bosley Med. Inst. v. Kremer,403 F.3d 672, 677-78 (9th Cir.2005) (finding that a website is non-commercial when it offers no products or services for sale and is devoid of paid advertisements from commercial entities). Even if Rice's two sales did not appear to be a "mere sham,"based on the totality of the circumstances and applying the Chance factors outlined above, (supra, Part III.B.1,) Rice's use of the Safe Beach Now mark does not satisfy the Lanham Act's "in commerce" requirement. See 15 U.S.C. §§ 1127, 1051(a), 1051(b). Rice claims to have "endeavored to create a commercial enterprise by which safety information and other CV-96(10%08) CML MINUTES-GENERAL 9 Case 2:10-cv-03258-A, PLA Document 31 Filed 10/28/1(. _;'age 10 of 10 Page ID #:284 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL Case No. CV 10-3258-JST (PLAx) Date: October 28, 2010 Title: Nell E. Langford v. Kevin P. Rice useful information could be developed." (Rice Decl. ¶ 6.) Rice fails to provide evidence, however, supporting this claim. Since his first use of the mark on July 9, 2007 —the alleged $20 cash sale of informational pamphlets— Rice has made just one other alleged sale, also consisting of a $20 cash sale of informational pamphlets. (Rice Decl. Exh. 2.) In short, there is no genuine issue of material fact as to whether the `688 mark "has actually been rendered in commerce." Chance, 242 F.3d at 1159 (internal quotation marks omitted). V. CONCLUSION For the reasons stated above, the Court GRANTS Langford's Motion for Summary Judgment and DENIES Rice's Motion for Summary Judgment. Pursuant to 15 U.S.C. § 1119, the Court ORDERS the United States Patent and Trademark Office to cancel Defendant Kevin P. Rice's registration of the Safe Beach Now mark, registration number 3,776,688.5 Langford is ordered to prepare the judgment consistent with this order. Initials of Preparer: enm 5 Because Langford does not allege common law trademark infringement in her Complaint, and because the Court now orders Rice's `688 mark cancelled, Langford's remaining arguments are moot. CV-90 (10/08) CML MINUTES—GENERAL 10 From: Will Powers[SMTP:DRWILL.POWERS7@GMAIL.COM] RECEIVED Sent: Friday, November 26, 2010 7:13:04 PM To: Council, SloCity NOV 2 9 1010 Subject: Marx vacany appointment Auto forwarded by a Rule SLO CITY CLERK Council: Dan Carpenter finished a very close third in the recent election,so it's obvious he has city-wide support. He should be appointed to fill Ms. Marx'vacancy. Be fair; don't play games. Will Powers 1028-C Islay Street San Luis Obispo CA 93401 805-748-7766 drwi I l.powers7(a_,gmail.corn herd co o ODUNcM °CDD DIA a CT YMOR °MDIIt ° AWCM °MMCHW ° CuMK/MG °LCE CUM RED FILE ° M MEETING AGENDA °UMDM ECDnt ° TSE ° m1D1E o NBWiA®S °ERDnt DATE La /b ITEM °CRYM # 83 ° n'0QTM'MM o ODS tEt °cum