Attorney: La Jolla breached fireworks agreement
By Pat ShermanLa Jolla’s annual Fourth of July pyrotechnics display at La Jolla Cove captivated crowds again this year — despite another last-minute cancellation scare weeks before the event.
After La Jollans ceased looking skyward that night, however, sparks continued to fly at Scripps Park between staff managing the event and a representative from Coast Law Group who was there to monitor the cleanup, per the terms of a settlement agreement between La Jolla Community Fireworks Foundation (LJCFF), City of San Diego and the law firm.
For the past four years, on behalf of its Coastal Environmental Rights Foundation (CERF), Coast Law Group has sued to prevent the fireworks from taking place, or to limit their scope, due to concerns about their impact on the environment.
In a July 7 letter to the city attorney’s office and Latham & Watkins, the law firm that has defended the LJCFF against CERF’s lawsuits pro bono for the past four years, Coast Law asserts that the LJCFF intentionally breached the settlement agreement by not allowing its representative to monitor the fireworks cleanup as agreed.
The letter states that Livia Borak, an associate attorney with Coast Law Group there to inspect the cleanup on July 4, was not permitted entrance to the launch area to monitor cleanup once it was deemed safe to enter by the fire marshal (about 11:15 p.m.), and was harassed and berated by security and LJCFF lead organizer, Deborah Marengo.
The letter states Borak repeatedly informed Barbara Folsom of Omni Security (hired by LJCFF) that prohibiting access to the launch site after it was declared safe constituted a breach of the settlement agreement.
The pyrotechnics contractor, Los Angeles-based Court Wizard Special Effects, informed Borak that she would have to remain out of the fenced area where the launch took place until the cleanup was complete because she was wearing thin, canvas shoes.
In a statement provided by Latham & Watkins, Folsom recounted, “The fencing company had also requested access to remove the fire retardant fencing and they were told no, for the same reasons. Ultimately, the fencing company decided to come back the next day. Livia continued to try to intimidate me and pressure me into letting her into the unsafe area. … As per Livia’s request, I inquired why the area was still unsafe and I was told there were wires, broken boards, nails, hot ashes, equipment laying all over the ground and walking around it was unsafe for us.”
Borak eventually stood on the adjacent seawall and took pictures of the cleanup over the fencing. According to Coast Law’s letter, Marengo arrived at 2 a.m. and asked what Borak was still doing there.
Borak claims Marengo escorted her into the launch area and began to harass and insult her. Borak said she was asked to leave after five minutes due to “safety concerns” with her shoes, although she said Marengo and several male companions were wearing open-toed shoes or sandals.
Borak was eventually given access to the launch area after the cleanup concluded, around 4 a.m.
“Because the 2014 event has passed (and) LJCFF cannot cure its default, CERF is willing to meet and confer regarding the aforementioned events, LJCFF’s default and possible means for salvaging the settlement,” Coast Law’s July 7 letter states. “If LJCFF and CERF cannot reach a mutually agreeable resolution of the breach, CERF will pursue all of its available remedies, including rescission of the agreement.”
Responding to Coast Law in a July 14 letter, Jeffrey Carlin of Latham & Watkins refuted Coast Law’s claim, saying it “misrepresents the facts and misreads the settlement agreement.”
In his letter, Carlin contends that the agreement “did not authorize CERF the access pursued by Borak,” and violated a provision of the agreement which states “CERF shall not interfere with the cleanup in any way,” only observe the cleanup from a “viewing location” at the top of the staircase from Ellen Browning Scripps Park to the bluffs northwest of the launch site.
“We reject your proposal … to extend additional access rights to CERF for any 2015 Independence Day fireworks display held by LJCFF,” it added. “CERF/Coast Law Group’s actions the past three years demonstrate the public safety risks inherent in your request. … LJCFF will continue to honor its obligations under the agreement and expects CERF to do the same.”
During the 2012 fireworks, Latham & Watkins’ letter noted, Borak snuck inside the secure, fenced-in area while the fireworks were being launched — “an intrusion that could have been fatal or caused serious injury to Ms. Borak except that the security team spotted her and removed her from her hiding spot moments before a nearby misfire.”
In 2013, Carlin’s letter states, “members of Coast Law Group/CERF bull-rushed the launch area minutes after the event and nearly caused a fistfight with the crew.”
In a July 16 response letter, CERF countered Latham & Watkins “characterization of the matter,” adding that “LJCFF’s park use permit expired at 10 p.m., six hours before the fireworks contractors opened up the park to the public, including CERF. … The LJCFF (and its contractors) had absolutely no right to refuse CERF access to the launch area after 10 p.m.”
The letter concluded by stating that, “though the insufficiency of LJCFF’s cleanup efforts were not the subject of CERF’s notice of breach … not only was fireworks debris left on the bluff overnight … a site visit to the park and surrounding bluff area on July 14 confirmed that, once again, LJCFF is not concerned with the impact of its fireworks show or obeying cleanup directives.”
CERF’s July 16 letter includes photos of debris Borak allegedly collected from the area the morning of July 14.
The La Jolla Village Merchants Association is currently exploring the possibility of
taking over the fireworksfrom the LJCFF, and expanding the event.