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Re: Jailed for taking pictures at Torrey

Postby Bob Kuczewski » Thu May 14, 2015 10:31 am

RickMasters wrote:SLAPP suits get thrown out all the time in California
"California’s anti-SLAPP statute provides for a special motion to strike a complaint where the complaint arises from activity exercising the rights of petition and free speech. "
http://www.casp.net/california-anti-sla ... /statutes/

and

5/12/2015 2:23:00 PM
Cottonwood Council terminates Red Rock Skydiving airport lease
"The city says that Carl Priggee is a tenant with no other authority to police or remove anyone from the airport.
City officials advised Priggee that he may not exclude anyone from the public airport."
http://verdenews.com/main.asp?SectionID ... leID=65703


Thanks Rick!!!
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Re: Jailed for taking pictures at Torrey

Postby Bob Kuczewski » Thu May 14, 2015 10:32 am

Here's my hand-typing of the Judge's Ruling From March 5th, 2015 (with colored foot notes* added by me). I had been holding back on publishing it because I had petitioned the Judge to correct a number of cosmetic and somewhat important oversights.

                Superior Court of California
                      County of San Diego


RE:       Air California Adventure, Inc. vs. Robert Michael Kuczewski
            Council for Petitioner: Christopher C. Saldana, Esq.
            Council for Respondent: Michael T. Malowney, Esq.
            (Withdrew his appearance during the closing arguments)
            Judge Ipema, D­64
Case #:     2014-23482
Date:      March 5, 2015


BACKGROUND

Respondent and Petitioner (Torrey Pines Glider Port's owners/operators/employees) have had a long history of conflict. Respondent is unhappy because currently no oversight exists over the operation of the Glider Port which is located in a public park. Respondent is a pilot at the Glider Port and spends a lot of time there. Respondent strongly believes there should be some oversight for the operation of the Glider Port. Respondent argues that without such oversight, the owners/operators would make arbitrary decisions that affects* the pilots and the public, and there is no appeal process.

Respondent has taken it upon himself for years now to point out the alleged illegalities/irregularities in the operation of the Glider Port to its employees/owners/operators. Respondent has also filed numerous complaints with the governmental authorities/agencies as to the alleged violations, but has gotten nowhere and feels extremely frustrated. Respondent has therefore taken it upon himself to police the operation and constantly points out the irregularities to the employees/owner/operators, of the Glider Port and documents everything. This in turn frustrates, and annoys the employees/owner/operators, who seem to be tired of Respondent's constant remarks about things that he thinks they are doing
wrong, filing complaints against them, and filming of them while at work. There is no dispute that the Petitioner and his employees do not like the Respondent and are extremely annoyed by his behavior. This has been going on for a great number of years (at least for the past 7 years.) Petitioner agrees that Respondent has never threatened anyone with physical violence and has never committed any unlawful act of violence against anyone at the Glider Port or elsewhere. Petitioner has called the police on a few occasions asking the police to remove Respondent from the premises but police reminded the Petitioner that Respondent had a right to be there. However, Respondent was recently arrested for trespass when he refused to leave the premises after hours and allegedly disobeyed the police*. No charges have been filed against the Respondent.

Respondent argues that this is a public park and Petitioners cannot exclude him or ask him not to film or take pictures. He claims he has no interest in taking over their business, but would not hesitate to find others who qualify to take over the operation of the business if Petitioners refuse to run the place the way he envisions. Respondent has a website where he posts the pictures and films that he takes of the irregularities at the Glider Port, and is very vocal in expressing his dissatisfaction with the owners and operators of the Glider Port.

Petitioner has filed this request for workplace violence restraining order against Respondent claiming that Respondent is harassing and stalking the employees/owner/operators of the Glider Port, by standing on the “pilots­ only” restricted area and taking pictures and pointing out irregularities to all. There is no doubt in the court's mind that Petitioner feels threatened by Respondent's actions and fears possibly losing their business and jobs if Respondent succeeds in finding someone interested to bid against them to take over Glider Port's operation. Petitioner argues Respondent has malicious intent and something bad is going to happen if he continues following employees around and filming them. Petitioner agrees that Respondent, being a pilot, has a right to be in the restricted area. However, Petitioner argues that by complaining, criticizing, commenting, taking pictures and filming in the restricted area, Respondent interferes with their business, and endangers the operation of the Glider Port. Petitioner argues that Respondent's actions interfere with the training of the new pilots, thus creating unsafe and hazardous conditions for all pilots, who land or take off from that area; and it further distracts both trainees and trainers, and creates a “credible threat of violence” under the law. Moreover, Petitioner argues that Respondent is constantly confronting them, taunting and inciting the employees/owner/operators. Petitioner is afraid that the employees/owner/the operator might snap and hit Respondent at some point, and thus this creates a “credible threat of violence”. Petitioner also agrees as “Flight Director” that Petitioner has the right to exclude people from the restricted area if they believe the person is a danger to the other pilots. However, in the past 7 years, Respondent has been taking pictures and filming in the restricted area without ever being excluded. There is no evidence of Respondent ever having created a hazardous situation for any pilot in the past 7 years.

Respondent states he is not a violent person. Respondent presented the court with his last video that he took of his interactions with the Petitioner and his employees as evidence. The video shows Respondent standing in the restricted area (pilots ­only) and video tapping* Petitioner training some new students. Respondent was approximately 20 feet* from the Petitioner. Petitioner noticed Respondent was filming and tried to ignore him*. Respondent then told Petitioner that he should wear his helmet when he is training the students. Petitioner was visibly upset by being criticized in front of his students, and asked Respondent to leave; but Respondent did not move. Petitioner then moved towards Respondent in a defensive* and irritated manner and got into his face and asked Respondent to stop filming him. Respondent taunted Petitioner by saying what are you going to do? Hit me? (Or something to that effect.)* Another pilot was asked by the flight director/owner to step in between them and stop the confrontation. That pilot was of no help and added to the conflict by calling Respondent names and saying Respondent was scared and shaking.

Petitioner objected to the introduction of the tape indicating that it “might not be the entire tape”, but Respondent testified that nothing happened before or after the footage and it is the entire tape. Both parties admit that captured coverage accurately reflects what happened between the parties from the moment that Petitioner noticed Respondent filming him to the moment that Respondent finally stopped the taped* and walked away. The court admitted the tape into evidence over the Petitioner's objection.

Respondent argues that it is not illegal to film or take pictures in a public place. Respondent states that there are three reasons behind his filming; 1) he wants to protect himself of any unfair accusations or harm in retaliation since he know Petitioner is after him; 2) to document the irregularities/illegalities that he intends to present to the governmental authorities to convince them to create an oversight; 3) he also films for his own enjoyment and for publishing interesting and useful information on his website. Respondent argues there is a legitimate reason behind his filming and he does not intend to harass anyone. Respondent argues that he has a right to be there and he is not breaking any laws. Respondent argues that he is not stalking anyone, is not following anyone, and is not creating any safety issues in the restricted area or elsewhere; so there is no credible threat of violence. Respondent argues that Petitioner has filed this action against him in retaliation.

LAW AND ANALYSIS

CCP § 527.8(a) authorizes an employer to seek a TRO and injunction on behalf of an employee or employees who has or have “suffered [(1)] unlawful violence or [(2)] a credible threat of violence from any individual.”

§ 527.8(b)(7) defines “unlawful violence” as “any [(a)] assault or [(b)] battery, or [(c)] stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-­defense or defense of others.”

§ 527.8(b)(2) defines “credible threat of violence” as “a knowing and willful statement or course of conduct[1] that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.”

Footnote wrote:[1] “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email.” (§ 527.8(b)(1).)


CCP § 527.6(a) authorizes “any person who has suffered harassment” to seek a TRO and injunction. “Subdivision (b) [of § 527.6] defines 'harassment' to include not just [(1)] actual violence or [(2)] threats of violence, but also [(3)] 'a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person,' that serves no legitimate purpose, and that is not constitutionally protected activity.” (R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188)2 In other words, § 527.6 includes a third category of enjoinable conduct not found in § 527.8.

Nonetheless, § 527.6's and § 527.8's definitions of the two common categories of “unlawful violence” and “credible threat of violence” are identical. (See, § 527.6 subds. (b)(7) and (b)(2), respectively.) Although the definitions of “course of conduct” are slightly different in § 527.8(b)(1) and § 527.6(b)(1), with the former tailored to an employee in the workplace, “[s]ection 527.6 was amended in 1998 to parallel the provisions of section 527.8 regarding the definitions of '”[u]nlawful violence,”' '”[c]redible threat of violence'” and '”[c]ourse of conduct.”' (Stats.1998, ch. 581, § 2.)” (Scripps Health v. Marin (1992) 72 Cal.App.4th 324, 333, fn. 7, emphasis added).3

As explained in Scripps Health, supra, at pages 333­-334:

At the time section 527.8 was enacted, section 527.6 prevented harassment when there has been a knowing and willful course of conduct directed at a specific person which annoys or harasses the person and serves no legitimate purpose. ...

Section 527.8 was enacted in 1994 to establish parallel provisions to section 527.6.4 It authorized any employer to pursue a TRO and an injunction of behalf of its employees to prevent threats or acts of violence by either another employee or third person. Given that section 527.6 only allowed injunctive relief for natural persons [case citation], section 527.8 was enacted to allow a corporate employer to bring such an action on behalf of an employee. Section 527.8 was thus intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons. The express intent of the author of the legislation was to address the growing phenomenon in California of workplace violence by providing employers with injunctive relief so as to prevent such acts of workplace violence. [Citation.]

Consistent with the foregoing, section 527.8, subdivision (a) expressly declares the Legislature's intent to provide employers with traditional prohibitory injunctive relief on behalf of their employees who have suffered unlawful violence or a credible threat of such violence from facing more in the future.


Footnotes wrote:2 (3) “Harassment is [(1)] unlawful violence, [(ii)] a credible threat of violence, or [(iii)] a knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate
purpose.” (CCP § 527.6(b)(3).)
3 The definitions of “unlawful violence,” “credible threat of violence,” and “course of conduct” are identical in the 1999
and current versions of § 527.6; the same is true for the 1999 and current versions of § 527.8.
4 Here, at footnote 8: “Indeed, the early versions of Assembly Bill No. 68 (1993-1994 First Ex. Sess.) in 1994 paralleled
the precise language, terminology and process in section 527.6, including the definitions of '”harassment”' and
'”[c]ourse of conduct.”'”



The court acknowledges that “stalking” is also included in § 527.8's definition of “unlawful violence,” ­ as found in § 527.8(b)(7).

Petitioner's attorney argued that, notwithstanding its absence from § 527.8's definitions, “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose” (§ 527.6(b)(3)) is also enjoin­able under § 527.8 even though there is no reference to it in that section. However Petitioner's argument is not convincing and Petitioner has not provided any authority.

There are cases which note, unsurprisingly, that because the definitions of “credible threat of violence” are identical in the two statutes, they are interpreted identically. For example: “[In Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228,] the Fourth District, Division 1, found that publications on a web site constituted credible threats of violence within the meaning of both sections 527.6, subdivision (b)(2) and 527.8, subdivision (b)(2). Examining section 527.6, the harassment statute, the court stated, '”It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”' (Id. at p. 1256 ....) The court further observed that while Huntingdon Life Sciences, Inc. had no standing under 527.6, it could seek relief for its employees under section 527.8. Because those two statutes were intended to provide the same relief, the same reasoning applied to both. Accordingly, the court held that Huntingdon Life Sciences, Inc. had demonstrated a probability of prevailing under not only section 527.6 but also section 527.8[.]” (City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 540.)

In Scripts Health (supra.) the Court of Appeal does not say that conduct enjoin­able under § 527.6 is necessarily enjoin­able under § 527.8. If the Court of Appeal intended to judicially expand the scope of conduct enjoin­able under § 527.8 beyond the clear statutory language, it would have certainly been more clear about it.

Furthermore, in its reply brief, petitioner relies on the following language from Huntingdon Life Sciences: “Section 527.8, however, allows an employer to seek injunctive relief on behalf of its employees under the same criteria set forth in section 527.6.” At best, this is arguably dicta because, as Garbett quote notes, the alleged conduct in Huntingdon Life Sciences was the “credible threat of violence” prong which is indisputably common to both § 527.6 and 527.8.

The court has not found any published case law that has expanded the enjoin­able conduct in § 527.8 beyond that statute's definitions of “unlawful violence” and “credible threat of violence.” Petitioner's arguments are thus not persuasive.

CCP § 527.8 provides for the issuance of a TRO or injunction based on unlawful violence or a credible threat of violence. “Unlawful violence” is any assault or battery or stalking under PC §646.9. (CCP §527.8(b)(7).) There is no case on point as to the issue of stalking arising in a workplace violence restraining case.

There is no dispute as to the fact that respondent has not committed an unlawful act of violence. The only two issues raised by Petitioner are: 1) stalking and 2) credible threat of violence.

1) Stalking:

PC §646.9 defines stalking as follows:

(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.


The Respondent's conduct does not fall within the above definition of stalking. He has not followed any of the employees/owner/operators home or elsewhere. His actions are limited to filming and videotaping in a public forum and bringing up irregularities in the operation of the Glider Port business. Furthermore, Respondent's conduct does not appear to be directed at a specific person but rather the Glider Port as an entity. Further, there does not seem to be facts which support malice or that any employee reasonably fears Respondent will cause an individual direct harm. While filming in close proximity might cause a concern because it is a distraction, he appears to be legally permitted to be on the property filming. Thus, it does not appear there are sufficient facts to support the conclusion Respondent has engaged in stalking as defined by §646.9. In addition, Respondent has been taking pictures and has been filming for years and Petitioner or the employees never raised the issue of stalking before. No other employee/operator/owner has ever filed a restraining order against the Respondent before. (One female employee attempted to file a temporary restraining order but did not complete the work and gave up). The previous owner banned Respondent from premises for thirty days a few years ago*, but allegedly Respondent's attorney contacted the owner about Respondent's rights and Respondent was allowed to return to the Glider Port.

2) Credible Threat of Violence:

The next issue is whether there is a credible threat of violence, which is defined as a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety that serves no legitimate purpose. (CCP §527.8(b)(2).)

(e) For the purposes of this section, “harasses” means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.
(f) For the purposes of this section, “course of conduct” means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.”
(g) For the purposes of this section, “credible threat” means a verbal or written threat including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in a reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of “credible threat.”
(h) For purposes of this section, the term “electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.


In the present case, while it is implied that Respondent interferes with Petitioner's business operations by being in a place where he is legally permitted to be, there is no indication Respondent has caused harm or intends to cause harm to any of Petitioner's employees. Under California law Civil Code Sec. 1708.8, it is not per se illegal for someone to film another in a public place regardless of whether there is physical trespass or not.... (Civ. Code, section 1708.8). Use of the camera in a public forum is clearly acceptable but they cannot be used to harass or invade the privacy of another. Petitioner has not proven that Respondent has violated any privacy laws.

If Petitioner believes that Respondent's filming while he is standing in the restricted area causes safety concerns due to distraction for the other pilots or trainers or trainees, then Petitioner as flight director and operator of the premises may place signs in the restricted area asking pilots not to film while standing in the restricted area and direct them to take pictures from outside of that restricted zone; but Petitioner has never done this. Further, the argument that a credible threat of violence arises from Respondent's inciting Petitioner's employees to cause violence is not supported by the law. A court cannot issue an injunction to protect a respondent from petitioner's violence under the statute. Although Respondent's filming and unsolicited comments and criticisms are annoying, none of the facts seem to support the conclusion that anything he is doing is illegal. It would be more productive for the Respondent to file his complaints with the governmental entity in charge of dealing with illegal operation of the Glider Port instead of constantly approaching the employees/owners/operators and criticizing them in front of their student trainees and other pilots; it is precisely this behavior that has led to conflict and hostility between the parties. If petitioner's argument is that Respondent is interfering with his business and livelihood, then he could follow another course of action in the appropriate civil court. Petitioner has failed to prove this falls within the workplace violence law.

The court finds that Petitioner has not met his high burden of prove* to prove workplace violence with a clear and convincing evidence. The temporary restraining order is therefore denied and dismissed.


IT IS SO ORDERED.
Date: March 5, 2015
        ______________________________
        Tamila E. Ipema
        Judge, San Diego Superior Court


Here's my request to correct the record:

TO PETITIONER AIR CALIFORNIA ADVENTURE, INC AND ATTORNEY NOTICE IS HEREBY GIVEN that, on May 13th or as soon thereafter as the matter may be heard, in Department 64 of this Court, located at 330 W. Broadway, San Diego, California, Respondent, Robert Michael Kuczewski will and hereby does move for a correction of the written statement issued by the court on March 5th, 2015. This correction is based on the evidence which was presented to the Court and accepted by the Court during the course of the trial.

Request to Perfect the Record of Written Statement by the Court

In anticipation of Petitioner's appeal and continued prosecution, Respondent respectfully requests the following changes to the 11 page written statement issued by the Court on March 5th, 2015 so that the record may be perfected.

Page 1: change “affects” to “affect”

Page 2: remove phrase “after hours and allegedly disobeyed the police”

Page 3: change “tapping” to “taping”

Page 3: change “20 feet” to “33 feet”

Page 3: change “and tried to ignore him” to “and told him to 'get out of here'”

Page 3: change “defensive” to “offensive”

Page 3: change “Respondent taunted Petitioner by saying what are you going to do? Hit me? (Or something to that effect).” to “Respondent asserted that he was not in the way of anyone and the police had said he had a right to document activities there.”

Page 4: change “stopped the taped” to “stopped the tape”

Page 8: change “for 30 days a few years ago” to “1 year in 2008 and 30 days in 2013”

Page 10: change “burden of prove” to “burden of proof”

Supporting Arguments for Substantive Requests to Perfect the Record

The following sections provide supporting arguments for each of the substantive changes requested above (minor grammar changes are not listed here). These arguments are based on the evidence which was presented to the Court and accepted by the Court during the course of the trial. An additional copy of the video recording from the November 9th, 2014 incident, and a transcript of that video recording is also provided for the convenience of the court.

Page 2: remove phrase “after hours and allegedly disobeyed the police”

The police report shows the time range of their response as 13:35 to 15:39. That would be from 1:35 in the afternoon to 3:39 in the afternoon. Those are normal business hours for the Gliderport. Additionally, Respondent did not disobey the police. The police informed Respondent that Petitioner had requested Respondent leave or the Petitioner would have Respondent arrested.

Page 3: change “20 feet” to “33 feet”

The video shows Gabriel Jebb taking 12 large strides to reach Respondent. A normal stride length for a 6 foot adult is approximately 2.5 feet. So 12 strides times 2.5 feet would be 30 feet. However the video shows Gabriel Jebb taking relatively large strides which might be closer to 3 feet each. So 12 strides times 3 feet would be 36 feet. Any number between 30 and 36 feet would be reasonable, so Respondent requests the Court to use the average of 33 feet.

Page 3: change “and tried to ignore him” to “and told him to 'get out of here'”

Petitioner did notice Respondent but made comments to call his students' attention to Respondent's presence rather than ignoring him. Gabriel Jebb stated in the video: “Just so you guys know, the guy over there in the white shirt ...”. That was prior to the Respondent making any statements at all. This is supported by the video evidence because the student with his back to Respondent turned at that point to see that Respondent was indeed standing behind him. Such a “turn and look” is consistent with the fact that the Respondent had made no statement or interference to distract the student's attention prior to Gabriel Jebb informing them that Respondent was filming. Further, the first words between Petitioner and Respondent were the Petitioner's later words stating “Bob you gotta get out of here. I'm trying to instruct right now. I don't need you sitting there.” Respondent replied with “Um” while considering a response. This was followed again by Petitioner stating “Get out of here.” It was only then that Respondent stated: “You should put a helmet on.” The Petitioner again asserted: “Get out of here.”

While this distinction is minor in a workplace violence restraining order, it will likely be important in subsequent proceedings where Petitioner may claim interference with his business.

Page 3: change “defensive” to “offensive”

The video clearly shows that Gabriel Jebb's approach was offensive and not defensive.

Page 3: change “Respondent taunted Petitioner by saying what are you going to do? Hit me? (Or something to that effect).” to “Respondent asserted that he was not in the way of anyone and the police had said he had a right to document activities there.”

Respondent did not taunt Petitioner or invite Petitioner to hit him. Respondent repeatedly asserted a right to be in the City Park and to film activities in the City Park. These are the quotes spoken by Respondent in the video record admitted into evidence:

“It's a city park. I'm standing here. I am far enough away. I'm not bothering you Gabe.”

“Have the police remove me because I'm not in the way of anybody Gabe. You've had the police here before and they've said I have a right to document what's going on here. ”

“I'm not in the way of anybody.”

“Don't touch ... don't put your hand on me. Don't put your hand on ... You just put your hand on me.”

“This is a public place and you know I have a right to videotape anything I want to video.”

“You are far too close. Get away from me! Get away from me!!”


Only after Petitioner took 12 strides toward Respondent, and only after Petitioner had repeatedly hit Respondent and Respondent's camera and chest bumped Respondent, and only after Petitioner then demanded Respondent to “Get the camera out of my face” did Respondent reply with “You walked into this camera, and you say 'Get the camera out of your face'? What a joke you are. Come walk into it again and say 'Get it out of your face'”. Other than this last invitation for Gabriel Jebb to walk into the camera while making the obviously contradictory statement to “Get the camera out of his face”, Respondent did not taunt Petitioners in any way. Furthermore, Respondent never taunted Petitioners to violence. The following section of the transcript makes this clear:

Shelby: He's scared to death. He's shaking and s***.
Robin: I know.
Bob: Well you've got three of you guys picking on one guy.
Shelby: Oh, oh. Just you and me. I'm a little guy. Just you and me.
Robin: [unintelligible]
Shelby: I'm a little guy. Hit me.
Bob: Are you threatening me? Are you saying you want to fight?
Shelby: You're saying ... you're acting like three people are threatening you.
Bob: I'm standing here videotaping this and all three of you came up to harass me.
Shelby: I'm an ex law enforcement, and you're way out of line dude. No one said anything...


This was after both Robin and Shelby had called Respondent a “douche bag”. Based on this review of the evidence, Respondent respectfully requests that this section:

        “Respondent taunted Petitioner by saying what are you
          going to do? Hit me? (Or something to that effect).”

be changed to:

        “Respondent asserted that he was not in the way of anyone and
          the police had said he had a right to document activities there.”

Page 8: change “for 30 days a few years ago” to “1 year in 2008 and 30 days in 2013”

To clarify the record, Respondent has been “banned” twice in the past decade and is attempting to establish a form of “due process” to keep such bans from being maliciously used against pilots who have not committed any violations. The details of prior bans were not clearly presented to the Court since the Court had given direction to focus on issues related to Respondent's actions with regard to workplace violence which were neither present nor alleged to be present in the previous bans. However, since Petitioner's have stated their intention to appeal and pursue other actions, it will be helpful to subsequent proceedings that the record be clear with regard to past bans.

The previous owner, David Jebb, banned Respondent from premises for 1 year beginning in April of 2008, but Respondent's attorney notified the owner about Respondent's rights and Respondent was allowed to return to the Glider Port and was also given compensation for the time he was not able to use the Gliderport due to the ban. The current owner (Petitioner) also banned Respondent from the premises for 30 days beginning on August 11th, 2013. Respondent requested a reason for the ban and Petitioner responded with his middle finger stating “Here's your reason”. Respondent then requested a written reason, but none was ever issued. Respondent returned within the 30 day period and again asserted to Petitioner that he had a right to be on the property. Petitioner did not prevent Respondent from being on the property or from flying his hang glider at that time or any time between then and the November 9th 2014 incident.

Dated: March 31, 2015


Here's my petition for legal fees:

TO PETITIONER AIR CALIFORNIA ADVENTURE, INC AND ATTORNEY NOTICE IS HEREBY GIVEN that, on May 13th, 2015 or as soon thereafter as the matter may be heard, in Department 64 of this Court, located at 330 W. Broadway, San Diego, California, Respondent, Robert Michael Kuczewski will and hereby does move for an award of attorney fees, expenses, and punitive/emotional damages in the amount of $35,115. This amount is the sum of $12,075 in Attorney's Fees (see attached Invoice and Declaration), $2,400 Lost Wages ($30/hour x 80 hours), $400 Copying Costs, $120 Parking Fees, $120 Court Costs, and $20,000 in punitive/emotional damages. This Motion is made on the grounds that under Code of Civil Procedure §§ 527.6(r) and 1032(a)(4) the prevailing party may be awarded costs and attorney fees.

Respondent asserts that the case was both baseless and malicious. Petitioner has used Petitioner's economic advantage to drag out the case at great monetary and emotional expense to Respondent. Respondent had not committed any act of violence. Respondent had not committed any threat of violence. Respondent had not committed any acts of stalking or any other actions required for the Petitioner to prevail under the statute. Petitioner was aware of all of those facts at the time when the case was filed, yet Petitioner persisted in filing the case and extending the trial month after month after month at great monetary and emotional expense to Respondent.

Moreover, Petitioner's actions were a clear retaliation for Respondent's ongoing efforts to obtain oversight of the Torrey Pines City Park. Petitioner has abused California law in this case as a means of intimidating Respondent and others from documenting and reporting unsafe and unfair practices by Petitioner at that park. Any non-reimbursed costs paid by Respondent will serve that purpose of intimidation to anyone else who might otherwise step forward to document and report similar unsafe or unfair practices at the Torrey Pines Gliderport. Respondent therefore respectfully requests that the Court award costs and expenses of $15,115 as listed along with an additional $20,000 in punitive/emotional damages for taking this baseless and malicious action against Respondent.

This Motion will be based on this Notice of Motion and Motion and the accompanying Declaration of Michael T. Malowney, and on the records of the case, and on such evidence as may be presented at the hearing of the motion.

Dated: April 8th, 2015

By: ______________________________________
Robert M. Kuczewski


The petition to correct the record was denied in court yesterday, but my petition for legal fees is being taken under consideration. The Judge did decline to impose the requested punitive damages, but she said she would issue a separate ruling on the legal fees.
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Re: Jailed for taking pictures at Torrey

Postby Frank Colver » Thu May 14, 2015 10:34 am

Do the RC fliers at Torrey have any problems with this guy?

FC
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Re: Jailed for taking pictures at Torrey

Postby Bob Kuczewski » Thu May 14, 2015 11:04 am

fcolver wrote:Do the RC fliers at Torrey have any problems with this guy?

The phrase "Politics makes strange bedfellows" applies here.

This is a letter from Larry Fogel (RC guy) to David Jebb back in 2002:

August 8, 2002

Mr. David Jebb
Torrey Pines Gliderport
2800 Torrey Pines Scenic Drive
San Diego, CA 92037

Dear Mr. Jebb,

Your very recent concern for flight safety at the Torrey Pines Gliderport should be commended; however, you appear to be using flight safety as a way to remove radio-controlled model soaring from this site.

The Academy of Model Aeronautics (AMA) insurance covering this activity at Torrey Pines is fully documented with Christian Anderson, City of San Diego Real Estate Assets Department. You may obtain a copy of this from him. This insurance "policy provides broad and unique coverage for flying site owners, protecting them from potential liability for injury or damage resulting from club activities on a flying site.

Royal Surplus Lines Insurance Company has an A.M. Best rating of A, IXV and is a member of the Royal & Sun Alliance Group, one of the world's largest insurance organizations. Authorization for AMA to issue certificates of insurance naming site owners as additional insured. This is the equivalent of issuing an endorsement to the policy and assures the site owner of coverage equal to or exceeding coverage for AMA, it's members and clubs. Site owner's coverage is primary. This means that the AMA policy pays on the site owner's behalf without involvement of the site owner's own insurance. Acts voiding coverage by any other insured do not apply to site owners. Should an AMA member or club either do something, or fail to do something that voids coverage for that member or club, the site owner still has coverage under this policy. Contractual liability coverage. This coverage clause reinforces the club's contractual obligations (if any) to indemnify and hold harmless the site owner for injury or damage in connection with the club's use of the site. Non-owned auto coverage for site owners when required by contract. This policy protects the site owner in the event of an auto accident on-site that result in a claim against the site owner. The $2,500,000 aggregate limit of liability applies per location (flying site). This limit of liability usually exceeds the site owner's requirements and the per location aggregate means the site owner does not share the limit with other site owners. It has the effect of a separate policy for each site owner. The insurer must give AMA 150 days notice of cancellation or non-renewal. This allows ample time for AMA to replace the coverage and to notify certificate holders of the change in coverage. AMA pays the entire annual premium at the beginning of the policy year so the policy cannot be canceled for non-payment." (ref. Letter from Carl Maroney, AMA to Christian Anderson dated August 7, 2002).

If you wish to have Air California Adventure, LLC co-insured, you simply have to request this in writing to either or both of the AMA chartered radio-controlled model clubs (Torrey Pines Gulls, Torrey Pines Scale Soaring Society) so that they can name you as additionally insured. There is a filing fee of $20 for each action (paid for by the club(s)).

You indicate that flight safety at the Torrey Pines Gliderport has been deteriorating for some time: "there are been at least 18 collisions of RC craft with manned craft at the site in the last two years" "In the month of June 2002, there were at least 8 RC crashes. In July 2002 there were 8 reported crashes." Evidently, the increasing traffic of paragliders (domestic and foreign) and trainees has made for a dangerous situation. We would certainly appreciate copies of the Incident Reports documenting each of these events, where they occurred along the cliff, who were the pilots involved, statements from each pilot, and any actions taken on your part to rectify these situations. We should then determine what new conditions contribute to the recent decline in safety.

The flight safety rules at Torrey Pines were first adopted in 1978, revised in 1995 with Richard Hanson, Vice President of AMA present. These are essentially the same as the rules currently posted at the gliderport. They are indeed consistent with the AMA Safety Code. In signing the lease you accepted these flight rules. This can only mean that you are admitting that the flight safety rules posted at the cliff are not being properly enforced. Your lack of "competent management" places you in direct violation of Section 1.6 of your lease.

There are a number of remedies for this deteriorating situation. For example, the flight times or airspace can be completely separated for models and ultralight aircraft (rather than the complete removal of either form of motorless flight). Your banning of radio-controlled flight indicates your bias (that you believe the entire fault for the incidents lies with the radio-controlled modelers). Your unwillingness to call upon the Torrey Pines Soaring Council to adjudicate this matter indicates a lack of concern for this long-standing procedure (originally established by the City). This is also in direct violation of your lease that states "Flight Director/LESSEE will consult with the Torrey Pines Soaring Council, which represents all soaring user groups in forming the above mentioned rules and regulations" (Recital 4). Further, your lease states that this is a "historical non-powered flight park." The historical uses include full-scale sailplanes, radio-controlled sailplanes, hang gliders, and paragliders. This is also reflected in the Torrey Pines Gliderport historical marker that refers to "all forms of motorless flight." This public facility must remain just that. Any competent manager would find effective and safe ways for all forms of motorless flight to co-exist rather than simply ban any one form of flight. Incidentally, you will be held responsible for any destruction of club property that was placed on this site with your prior consent.

Evidently, your desire to build an increasingly profitable paragliding operation has already greatly reduced hang glider flying at the cliff. You have greatly reduced radio-controlled operations at the cliff by increasing the daily fee beyond the point affordable by younger and retired pilots. Clearly you have a major conflict of interest between profit and flight safety. You can show your willingness to have equitable flight at the gliderport by shutting down all flight operations until this issue is resolved. You may expect appropriate legal action on this matter. Copies of this letter are being forwarded to all interested parties.

Sincerely,
Lawrence J. Fogel
AMA representative, Torrey Pines Soaring Council
858 455-6449


As his signature block shows, Larry was the Academy of Model Aeronautics (AMA) representative to the Soaring Council. That's the RC equivalent of USHPA. So the AMA representative to the Soaring Council (Larry Fogel) was chewing into Jebb pretty good. But Jebb won, and the Soaring Council went effectively defunct for years ... until I came along (you can read about the Modern History of the Torrey Pines Soaring Council here).

When I first got involved, the RC guys were getting treated pretty badly by Jebb, and they were very supportive of my efforts. But Jebb recognized that I was bringing everyone together for our rights at the Gliderport, so he began to "woo" the RC guys with lots of "goodies" like letting them hold their air races and other events at the Gliderport. The RC guys thought it was great to pit one HG/PG guy (me) against their arch enemy (Jebb) while they got to benefit from Jebb's bribes. The RC guys also (though some sneaky tactics) held 3 of the 7 seats on the Soaring Council while the two sports of HG and PG - combined - only had 2 seats. This is where the RC guys and Jebb pitted USHPA against the Torrey Hawks to keep us from getting another seat on the Soaring Council. USHPA bought into that and has been shooting hang gliding in the back all these years by not requesting a separate Soaring Council seat for hang gliding (another problem with having a combined HG/PG organization at the national level).

So there's no better proof of the saying "politics makes strange bedfellows" than the history of the Torrey Pines Soaring Council!!
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Re: Jailed for taking pictures at Torrey

Postby Rick Masters » Tue May 26, 2015 4:00 pm

Image

Some may find this amusing but there is a serious lesson here.

I just came across an episode of Judge Judy on television. A renter had complained that he had been unfairly evicted from his apartment after two years of tenancy.

The landlord had raised his rent and when he had not paid the increase, the landlord sought and gained a restraining order against him. The landlord then changed the locks to his apartment while he was absent, claiming the act was justified because he had left due to the restraining order.

Judge Judy became quite irate, waving her arms and pointing at the landlord, exclaiming that it was not proper to use a restraining order to enforce a rent increase and force someone from their home, AND THEN USE THE RESTRAINING ORDER AS JUSTIFICATION FOR THE EVICTION. She then awarded the tenant a large cash sum from the landlord in restitution.

In many respects, I see this as an analogy for what has been done to BobK when a false claim of "workplace violence" and the associated improperly-issued restraining order was used in a conspiracy* between a functionary of the USHPA and the USHPA itself to kick BobK out of the association and deny him his rights to participate in public activities. However, I consider the wrong done against BobK to be much more serious as it involves his rights as a citizen and brings in an additional deep-pockets player, the City of $an Diego.
________________________
* 1.1. Penal Code 182 PC

Penal Code 182 PC California's conspiracy law sets forth the specific conspiracies for which you may be prosecuted. These include conspiracy to

...accuse another person falsely or maliciously of committing or participating in a crime (this clause is intended for situations where two or more people attempt to "frame" an innocent person for a crime or make false allegations that actually lead to an arrest and formal charges...
http://www.shouselaw.com/conspiracy.html#1.1

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Re: Jailed for taking pictures at Torrey

Postby brianscharp » Mon Jul 13, 2015 4:57 pm

http://ozreport.com/forum/viewtopic.php?p=141182#141182
police summoned again
Douchebob wrote:Bob is now officially a 3 time loser. Arrested again on Sunday about 2:30 in the afternoon. Hot Diggity , have at it boys!!!! P.S if you really want to know the absolute truth about Bob, contact the main source and get the correct information !!>?? Call Torrey and ask? Sounds to strait forward to me. GH is pretty close in his perception but still not right on. Still sounds to simple, call Robin or E-Mail him and I'm sure hill respond to any meaningful questions!!!!

Any legitimacy to this happening 7/12/15?
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Re: Jailed for taking pictures at Torrey

Postby Bob Kuczewski » Mon Jul 13, 2015 7:14 pm

brianscharp wrote:http://ozr

eport.com/forum/viewtopic.php?p=141182#141182
police summoned again
Any legitimacy to this happening 7/12/15?


The sad truth is yes. I again went to Torrey like any member of the public - committing no crimes - and I was violently attacked by Gabriel Jebb. I spent another night in jail and I have another court date. Rosa Parks didn't face the corruption that I've seen in the San Diego Police Department.

By the way, the vile name of "Douchebob" shows the cowardly and filthy nature of those supporting Robin Marien and the Jebbs. It's disappointing that Davis has allowed a Torrey PG pilot to use that name for years. I'll bet the user name "DoucheDavis" wouldn't last too long.
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Re: Jailed for taking pictures at Torrey

Postby Bill Cummings » Mon Jul 13, 2015 7:51 pm

bobk wrote:
brianscharp wrote:http://ozr

eport.com/forum/viewtopic.php?p=141182#141182
police summoned again
Any legitimacy to this happening 7/12/15?


The sad truth is yes. I again went to Torrey like any member of the public - committing no crimes - and I was violently attacked by Gabriel Jebb. I spent another night in jail and I have another court date. Rosa Parks didn't face the corruption that I've seen in the San Diego Police Department.

By the way, the vile name of "Douchebob" shows the cowardly and filthy nature of those supporting Robin Marien and the Jebbs. It's disappointing that Davis has allowed a Torrey PG pilot to use that name for years. I'll bet the user name "DoucheDavis" wouldn't last too long.

Bob,
I’m counting on you having had all your ducks in a row for this encounter.
Try for a contingency lawyer to go after ACA Inc, police officers involved, Gabe Jebb, and the City of San Diego.
Conspiracy Against Rights (laws on both State and USC (Federal) books.
Fed. Is Title 18, Chapter 13, section 241.
It is possible that the ten thousand dollar cap and the ten years in prison cap have been raised in recent years.
You are way late in putting the justified fear of significantly, severe and unbearable monetary loss in the hearts of your antagonists.
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Re: Jailed for taking pictures at Torrey

Postby JoeF » Mon Jul 13, 2015 10:11 pm

Posted at OzR:
Davis, do you approve of personal attacks via member name design? A name of a forum member is being used as a platform for continual personal attacks on BobK.
Is this something you want to moderate out or tacitly approve by not moderating such out? Douchebob … and then look at Doug Poirier posts for personal attacks.

Here is BobK's note today:
Here is BobK's note today on another forum wrote:By the way, the vile name of "Douchebob" shows the cowardly and filthy nature of those supporting Robin Marien and the Jebbs.
It's disappointing that Davis has allowed a Torrey PG pilot to use that name for years. I'll bet the user name "DoucheDavis" wouldn't last too long.


Doug and his dog: http://www.sandiegouniontribune.com/news/2012/may/03/rescued-dog-loves-to-fly/

Doug Poirier has posted 40 times to date http://ozreport.com/forum/search.php?search_author=Douchebob
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Re: Jailed for taking pictures at Torrey

Postby ARP » Tue Jul 14, 2015 11:55 am

"Douchebob" = P-4 3 83400 Douglas Poirier San Diego CA 3/30/2013 Gabriel Jebb (rating official)
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