Upon the foregoing papers it is ordered that this motion and cross motion are determined as follows:
Defendant's motion for an order dismissing plaintiff's Complaint on the grounds that (i) plaintiff is unable to state with specificity what caused his alleged accident; (ii) defendant was an out-of-possession landlord with no contractual obligation to maintain the staircase involved in plaintiff's accident; (iii) defendant did not create the condition that caused plaintiff's accident and did not have actual or constructive notice of any hazardous condition; and (iv) the sole proximate cause of plaintiff's accident was his reckless conduct in attempting to jump down six or seven steps.
This is a negligence action to recover for personal injuries resulting from an alleged trip and fall on an interior staircase which occurred on July 5, 2007. Pursuant to plaintiff's Bill of Particulars, as he was descending the staircase located in the premises known as 221 Hempstead Turnpike, he tripped as the result of a defective, torn, misplaced, curled floor mat thereat.
Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue ( Andre v. Pomeroy, 32 NY2d 361; Kwong On Bank, Ltd. v. Montrose Knitwear Corp., 74 AD2d 768 [2d Dept 1980]; Crowley Milk Co. v. Klein, 24 AD2d 920 [3d Dept 1965]. Even the color of a triable issue forecloses the remedy ( Newin Corp. v. Hartford Acc Indem. Co., 62 NY2d 916). The evidence will be construed in a light most favorable to the one moved against ( Bennicasa v. Garrubo, 141 AD2d 636 [2d Dept 1988]; Weiss v. Gaifield, 21 AD2d 156 [3d Dept 1964]). The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact ( Alvarez v. Prospect Hospital, 68 NY2d 320). Once the proponent has met its burden, the opponent must now produce competent evidence in admissible form to establish the existence of a triable issue of fact ( see, Zuckerman v. City of New York, 49 NY2d 557). It is well settled that on a motion for summary judgment, the court's function is issue finding, not issue determination ( Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Pizzi by Pizzi v. Bradlee's Div. of Stop Shop, Inc., 172 AD2d 504, 505 [2d Dept 1991]). However, the alleged factual issues must be genuine and not feigned ( Gervasio v. DiNapoli, 134 AD2d 235 [2d Dept 1987]). The role of the court on a motion for summary judgment is to determine if bona fide issues of fact exist, and not to resolve issues of credibility ( Knepka v. Tallman, 278 AD2d 811 [4th Dept 2000]).
Defendant established a prima facie case that there are no triable issues of fact. In support of the motion, defendant presented, inter alia, the examination before trial transcript testimony of non-party witness, Glenn Draudt, a former co-worker of plaintiff, the examination before trial transcript testimony of Dennis DioGuardi, a former co-worker of plaintiff, the examination before trial transcript testimony of defendant who testified that: he is the sole-shareholder of Nu-Life, that Nu-Life did not own the subject building, that he owns the building in his personal capacity, that there was a lease for Nu-Life's occupancy of the building, via which plaintiff's employer, Nu-Life, not defendant, was responsible for the maintenance of the staircase involved in plaintiff's accident. Non-party witness, Glenn Draudt testified that he observed plaintiff jump down the steps, that he was walking down the stairway, when plaintiff hurried past him and jumped from about six or seven steps from the bottom, landing poorly and injuring himself, that there was no debris on the stairwell, and no problem with the lighting, and that plaintiff leaped down the steps. Non-Party witness, Dennis DioGuardi, testifies that he was walking down the stairs, when plaintiff passed him and jumped down the last seven steps injuring his leg, there was no debris on the stairway and there was no problem with lighting, and there was no mat lying over the bottom step at the time of plaintiff's accident; and plaintiff's own examination before trial transcript testimony, wherein when plaintiff was asked what he slipped on, he said "I don't know. I cannot say."
In opposition, plaintiff raises a triable issue of fact. In opposition, plaintiff presents the examination before trial transcript testimony of plaintiff himself; the examination before trial transcript testimony of defendant himself; and an affidavit of the plaintiff himself wherein the plaintiff avers that: "When I was approximately five steps from the bottom, my left foot slipped. After I began to slip, I could not plant my right foot at the bottom of the steps because a loose mat was draped over the steps at the bottom . . . Contact with this mat caused my right foot to twist." In his affidavit, plaintiff also avers that: "On at least 10 occasions prior to my accident I saw the mat draped over the bottom steps. For 2-3 months prior to my accident the mat was not affixed or attached to the floor in any manner. Additionally, the issue of whether a dangerous or defective condition exists on the property of another "depends on the particular facts and circumstances of each case and is generally a question of fact for the jury." ( Trincere v. County of Suffolk, 90 NY2d 976). Accordingly, there are triable issues of fact in connection with, inter alia, whether a defective condition existed, whether defendant had either actual or constructive notice of a defective condition, whether defendant created a defective condition causing plaintiff's accident, and whether defendant acted reasonably under the circumstances. On these issues, a trial is needed and the case may not be disposed of summarily. As there remains issues of fact in dispute, defendant's motion for summary judgment is denied.
That branch of plaintiff's cross motion for an order striking defendant's Answer pursuant to CPLR 3126 due to their failure to preserve crucial evidence is hereby denied.
Plaintiff contends that defendant testified at his examination before trial that there was video surveillance that captured the plaintiff's accident, which surveillance runs on a 24-hour loop, and that defendant testified that surveillance showing the accident was not preserved because . . .what happened was nothing, no big deal, and there was no reason that anybody saw to keep a copy of the tape and it just records over every 24 hours." Plaintiff also contends that defendant testified that the video images were digitally recorded, with the images stored on a computer, but less than one week prior to his examination before trial, defendant replaced the hard drive that contained the images of the subject accident. Defendant concedes that for at least 10 months prior to his EBT, he was aware of the lawsuit.
Defendant contends that defendant testified that there was never any footage of plaintiff's accident saved as the surveillance system in place on the date of plaintiff's accident recorded over itself every 24 hours unless footage was saved and stored, which was never done concerning plaintiff's accident. Defendant testified that he did not learn of plaintiff's accident until a week or two after the accident, well after the 24 hour period to retrieve the surveillance before the system recorded over itself. Defendant asserts that since plaintiff can testify at trial about how the accident happened, he has not been left without means to prove his case.
Spoliation is the destruction of evidence whether intentional or by accident. . . . Sanctions for spoliation are appropriate `where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has had an opportunity to inspect them.' Dismissal of an action, or the striking of pleadings, while severe, is an appropriate remedy when the evidence spoiled is a `key piece of evidence', (emphasis added) whose destruction precludes inspection by an adverse party. In determining the severity of the spoliation sanction, it is important to ascertain what prejudice if any the party seeking the sanction has incurred by the absence of the spoiled evidence. . . . [I]n cases where the spoiled evidence is not crucial to a litigant's case, such that its absence does not prevent the outright prosecution or defense of a case, preclusion of evidence, rather than outright dismissal of pleadings, is the preferred remedy (
Shea v. Spellman, 2004 NY Slip Op 50785U, [Sup Ct, Bronx County 2004][internal citations omitted]).
"If the Court in its analysis concludes that because of the spoiled evidence one party has destroyed critical physical proof, such that its opponents are `prejudicially bereft of appropriate means to [either present or] confront a claim with incisive evidence', the spoliator's pleading is properly stricken in order to obviate a trial that is `based on rank swearing contests" (emphasis added) ( Id.) (Citations omitted). While a spoliator of key evidence can be punished by the striking of its pleading, the court must determine whether such a drastic remedy is necessary as a matter of fundamental fairness, or whether a less drastic sanction is appropriate ( Iannucci v. Rose, 8 AD3d 437 [2d Dept 2004]).
The main question that must be answered in order to determine whether spoliation sanctions are appropriate is whether the alleged spoliator was on notice of the litigation at the time of the destruction of the evidence ( Hennessy v. Restaurant Associates, Inc., 25 AD3d 340 [1st Dept 2006]; Montiero v. R.D. Werner Co. . Inc., 301 AD2d 636 [3d Dept 2003) Such notice creates a duty to preserve the evidence. ( Id.).
In the instant case, according to defendant the video surveillance system in operation at the time of plaintiff's accident functioned by "recording over itself after a 24 hour period". Defendant asserts that he did not learn of the accident until a week or two after the accident and after the recording system had recorded over itself several times without saving the prior 24 hour recording. Thus, at the time the alleged destruction of the surveillance video, defendant, the alleged spoliator, was not on notice of the litigation. Therefore, defendant's duty to preserve the surveillance video evidence did not arise until after the system's automatic function recorded over it. Plaintiff submitted no evidence to dispute these facts. Furthermore, the alleged spoliation does not leave plaintiff "prejudicially bereft" of the means of prosecuting his case against defendant ( see, Jenkins v. Proto Property Services, LLC, 54 AD3d 726 [2d Dept 2007]; Canaan v. Costco Wholesale Membership, Inc., 49 AD3d 583 [2d Dept 2008]) as plaintiff can testify at trial about how the accident occurred ( Barone v. City of New York, 52 AD3d 630 [2d Dept 2008]).
That branch of plaintiff's cross motion for summary judgment is denied as the Court has determined in the main motion that there are triable issues of fact.
This constitutes the decision and order of the Court.
h 2003, Wong resigned from the LAWA Commission after he was appointed to serve as a commissioner at the DWP. He asked to keep his badge and a LAWA Commission business card so he could continue representing Mayor Hahn's office in Asian affairs. Edwards approved Wong's request. The DWP wanted to reduce pollution in the Port as part of its Alternative Maritime Power program (AMP) and implement environmental restrictions, so it had an interest in the ongoing negotiations between Evergreen and the City. On April 30, 2003, Wong sent an e-mail to Edwards stating that "[w]e are going to have a very difficult time moving [Evergreen] to cooperate with us on the Ontario Cargo deal and retrofitting their Ships for AMP . . ." due to the City's backpedaling. Wong averred that "Evergreen now feels all the actions from the [Port] [are] punitive and that the Mayor's office has no control over direction at the Port. [Keller] needs to contact [Shyu] today to explain in detail . . . the revised [memorandum of understanding] and how this will benefit Evergreen in [the] long run." In conclusion, Wong stated: "This is too much when you think about it, this looks like the Port is looking at every which way to [lose] Evergreen or to push them to divert cargo to Long Beach." On May 5, 2003, Wong e-mailed Chiu to say that he had dinner with Edwards to voice Evergreen's concerns regarding the memorandum of understanding signed in November. Wong also stated: "I suggested to [Edwards] that in order to restore the credibility of [the Port] [that] either [Edwards himself or Keller] . . . write a side letter to Evergreen reconfirming the commercial terms that [were] agreed [to] in the [memorandum of understanding]. In addition, the empty credit that was promised in the [memorandum of understandingj should be in effect. . . ASAP and retro back from Jan[uary] 1, 2002. [Edwards] promised to work on these two requests. I
will have another dinner meeting with [Keller] and [Edwards] on next Monday to follow up on this issue."
In August 2003, Permit 888 was amended.
Like other City officials, Wong filed an annual "Form 700," a financial disclosure form. Wong's 2002 Form 700 disclosed that he was receiving between $10,000 and $100,000 from Evergreen Marine. His 2003 Form 700 did not disclose Evergreen Marine's payments. Both forms were signed under penalty of perjury. The $5,000 monthly payments to Wong, which totaled $100,000, ceased as soon as he left public office in January 2004.
Other actions by Wong
The W.H. Smith Company (W.H. Smith) was a concessionaire with an airport lease. The president of W.H. Smith sent an e-mail to Wong asking him to locate moneymaking opportunities and business deals profitable to both W.H. Smith and Wong. In December 2002, Wong voted to renew W.H. Smith's lease based on the recommendation of LAWA staff.
When Wong filed his California tax returns, he reported $12,000 in consulting fees in 2002 and $20,000 in 2003. He did not report any income over those amounts that he received from Evergreen Marine.
The charges
Wong was indicted on August 22, 2006.
In count 1 of the consolidated and amended indictment and information, the People alleged that Wong accepted a $100,000 bribe from Shyu in violation of section 68. With respect to counts 2 and 3, it was alleged that Wong had a conflict of interest in violation of Government Code section 1090 when, in his official capacity, he became financially interested in and amended Permit 888 and extended EVA Air's lease. Count 4 alleged that Wong committed perjury on his 2003 Form 700 in violation of section 118. Pursuant to section 487, subdivision (a), counts 5, 6, 7, 8, 9, 10, 11 and 12 alleged that Wong committed embezzlement by selling Kaiser's property (Lakers tickets) on April 13, 2000, May 20, 2000, June 2, 2000, June 4, 2000, June 6, 2001, January 5, 2001, January 13, 2002, and February 1, 2003. Counts 13, 14, 15, 16 and 17 also charged Wong with embezzlement; they pertained to massages that Wong purchased for himself and others and claimed as a Kaiser expense. As to the embezzlement counts, the People alleged that the crimes were not discovered and could not have been discovered until Dutcher began investigating Wong in October 2003. In counts 18, 19 and 20, Wong was charged with filing false tax returns in violation of Revenue and Taxation Code section 19705. Lastly, count 21 alleged that Wong had a conflict of interest in violation of Government Code section 1090 when, while serving as a LAWA commissioner, he voted to renew the airport lease LAWA had entered into with W.H. Smith.
The verdict; sentencing
Following a jury trial, Wong was found guilty with respect to counts 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 18, 19 and 20. He was acquitted with respect to the embezzlement charges set forth in counts 7, 13, 14, 15, 16 and 17, and also as to the conflict of interest charge in count 21.
The trial court sentenced Wong to confinement in state prison for a total of five years. This timely appeal followed.
STANDARD OF REVIEW
When a defendant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" ( People v. Bolin (1998) 18 Cal.4th 297, 331 [75 Cal.Rptr.2d 412, 956 P.2d 374].) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and we indulge every reasonable inference the jury could draw from the evidence. ( People v. Autry (1995) 37 Cal.App.4th 351, 358 [ 43 Cal.Rptr.2d 135].)
In addition, the substantial evidence test applies when we are asked to review the record to determine whether a jury properly found, by a preponderance of the evidence, that a criminal proceeding is timely under the statute of limitations. ( People v. Le (2000) 82 Cal.App.4th 1352, 1361 [ 98 Cal.Rptr.2d 874].)
DISCUSSION
I. The embezzlement convictions.
Wong contends that the embezzlement counts are time-barred because he was indicted more than four years after his offenses should have been discovered. (§§ 801.5, 803, subd. (c); People v. Bell (1996) 45 Cal.App.4th 1030, 1061-1062 [ 53 Cal.Rptr.2d 156] ["[T]he time limitation does not begin to run until the discovery of the offense. For the purpose of the subdivision, an offense is discovered when either the victim or law enforcement learns of facts which, when investigated with reasonable diligence, would make the person aware a crime had occurred."]; People v. Zamora (1976) 18 Cal.3d 538, 571-572 [ 134 Cal.Rptr. 784, 557 P.2d 75] ["The crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud."].)
We are told by Wong that if a defendant embezzles from a private entity, any subordinate employee qualifies as a victim who can be charged with notice. The People take a narrower view. Relying on cases involving fiscal crimes against governmental entities, the People contend that notice inquiry focuses solely on the knowledge of supervisors who oversee fiscal affairs. ( People v. Lopez (1997) 52 Cal.App.4th 233, 247-248 [ 60 Cal.Rptr.2d 511] ( Lopez); People v. Moore (2009) 176 Cal.App.4th 687, 695 [ 97 Cal.Rptr.3d 844].) After being confronted with this dispute, we were enlightened by the fact that Lopez relied on a case involving a victim who was a private individual, People v. Kronemyer (1987) 189 Cal.App.3d 314 [ 234 Cal.Rptr. 442] ( Kronemyer). Kronemyer held: "Insofar as a thief is entitled to the benefits of a discovery statute, we believe it should extend no further than those persons who are direct victims, persons having a legal duty to report and investigate crime, and those persons who are clothed with a status imposed by law as guardian, conservator or equivalent, in the absence of express statutory direction." ( Id. at pp. 334-335.) After parsing Kronemyer's holding, Lopez stated that "the same rules should apply to crimes involving misappropriation of public funds and perjury in the execution of official documents relating to public funds. We hold therefore that in cases involving fiscal crimes against government, a victim for purposes of the discovery provisions of [section 803, subdivision (c)], is a public employee occupying a supervisorial position who has the responsibility to oversee the fiscal affairs of the governmental entity and thus has a legal duty to report a suspected crime to law enforcement authorities." ( Lopez, supra, 52 Cal.App.4th at pp. 247-248.) In our view, precedent establishes that the rule of Lopez applies to public and private victims.
Our focus dwells upon when any Kaiser supervisor with fiscal oversight should have discovered that Wong sold Lakers tickets purchased with Kaiser funds and kept the proceeds for himself. It is undisputed that Wong had an annual budget of approximately $9 million and considerable autonomy, including the discretion to give tickets to community leaders. Also, the evidence establishes that he hid any hint of his spending on Lakers tickets from his supervisors, Blackburn and Cordova, by having subordinates purchase the tickets on their corporate credit cards, having subordinates sign his expense reports, and splitting invoices to avoid going over his fund disbursement authority limit. He did not have an accounting system for the tickets, and his staff did not know where the tickets went. Even if Blackburn or Cordova knew Wong was purchasing tickets, there was no evidence to make them suspect embezzlement. He worked for Kaiser for 17 years and occupied a position of trust and responsibility. Blackburn testified that she was not aware of any of Wong's nefarious activities. We conclude that these facts constitute substantial evidence that neither Blackburn nor Cordova learned of suspicious facts that required investigation. It was not until Dutcher received an anonymous tip about Wong in October 2003 and subsequently learned of his lavish spending on unaccounted-for Lakers tickets that Kaiser was on notice.
Blackburn testified that she reviewed Wong's expense reports, sometimes on a monthly basis. She was unaware that he was using Kaiser funds to buy himself massages, or that he directed Schreuder and Hernandez to charge massages to their credit cards and report them as their own expenses. Further, Blackburn testified that she was unaware that Wong was purchasing season tickets to STAPLES Center; signing licensing agreements with STAPLES Center; and selling tickets owned by Kaiser to third parties. She also did not know that Wong was purchasing tickets from Stein. Blackburn never suspected Wong of theft while she supervised him. At times she received a copy of Wong's calendar, but that was infrequent. She denied having a general understanding of what he did with his time.
A contrary conclusion is advocated by Wong. He suggests that Kaiser had knowledge of circumstances that would have made any reasonable person suspicious that something was amiss in 2000, 2001 and early 2002 because he was purchasing massages at the Bonaventure Club and ordering his subordinates to charge those massages on their credit cards; he was purchasing large numbers of sports tickets, giving many of them to undisclosed recipients, and directing his subordinates to sign his expense reports in violation of Kaiser policy; and he was expending Kaiser funds to arrange illegal fundraisers for prominent politicians.
The problem for Wong is that while there is evidence that Schreuder and Hernandez were aware of enough information to suspect him of wrongdoing with respect to Lakers tickets, they were not victims under Lopez. And Wong did not cite any evidence to support his assertion that Blackburn and Cordova knew tickets were being given to undisclosed recipients. As for the fundraisers, Wong was told to sponsor them and those events therefore did not give Blackburn or Cordova reason to suspect him of embezzlement.
Wong contends that Blackburn "testified that she reviewed his expense reports and noted the unusual payments for massages at the Bonaventure Spa, as well as the large numbers of sports tickets purchased. She nonetheless approved these expenditures because they were not `necessarily inappropriate.' She never questioned [Wong] concerning them." Wong did not cite to any specific pages in the reporter's transcript to support his assertions. Rather, he cited to pages "3007 et seq." Presumably, he was requesting that we read from page 3007 to the end of the reporter's transcript at page 5400 to validate his position. We decline. ( Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 f75 Cal.Rptr.2d 27J ["As a general rule, `The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation `is furnished on a particular point, the court may treat it as waived.' [Citation.]"].) In any event, we note that Blackburn testified that she did not know about any massage expenditures at the time she was supervising Wong, and that while she approved, for example, an expense at Sakura Health Gym and Sauna, she did not know it was a massage facility.
In the alternative, Wong contends that Kaiser should be charged with notice of his crimes because Cordova was in a position to review the expenditures of the employees that he supervised. There is no merit to this contention. The law does not require an employer to investigate an employee absent circumstances that are sufficient to make the employer suspicious of a crime.
We conclude that substantial evidence supports the jury's finding that the embezzlement charges were timely.
II. The Evergreen bribery charge.
According to Wong, there was no evidence that he accepted a bribe, that Evergreen offered a bribe or that Evergreen acted with corrupt intent. We see the facts and the law differently.
"Every executive or ministerial officer, employee, or appointee of the State of California, a county or city therein . . . who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his or her vote, opinion, or action upon any matter then pending, or that may be brought before him or her in his or her official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison for two, three, or four years . . . ." (§ 68, subd. (a).) "The word `bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity." (§ 7, subd. 6.) We previously held that to convict a defendant of bribery, a jury need only find that "there existed subjects of potential action by the recipient, and that the bribe was given or received with the intent that some such action be influenced." ( People v. Gaio (2000) 81 Cal.App.4th 919, 929 [ 97 Cal.Rptr.2d 392]; see id. at p. 928, fn. 9 [applying § 165 but noting that bribery statutes "merit a like construction"].)
There is no dispute that Shyu gave Wong something of value for purposes of section 68 by paying him $100,000. Nor is there a dispute that Wong held public office when he served as a LAWA commissioner and DWP commissioner at the time he was receiving $5,000 a month. The reasonable inference is that Shyu paid Wong to influence his actions in his official capacity because Evergreen Marine wanted to renegotiate Permit 888, Wong said he could help and, in the guise of trying to facilitate the move of EVA Air to Ontario Airport, he repeatedly pressured Edwards to reach a deal on amending Permit 888. Corrupt intent can be inferred from Shyu's agreement to pay money to Wong as well as Shyu's knowledge that while he was paying Wong, Wong used his public office to influence the actions of Edwards, Keller and other City officials. In addition, corrupt intent can be inferred from the clandestine payment of funds into a Hong Kong bank account, Wong's failure to disclose his relationship with Evergreen to City officials, Wong's request to keep his LAWA credentials after he was appointed to the DWP Commission, and the cessation of payments to Wong as soon as he left public office in January 2004. Finally, the facts demonstrate that Wong's public office as LAWA commissioner and DWP commissioner gave him the ear of Edwards and other City officials and, at the time of the first payment and the subsequent payments, there existed subjects of potential action by Wong, i.e., the opportunity to approach City officials and pressure them to amend Permit 888 under the cloak of working only for, and in the best interests of, the City.
Underlying Wong's challenge to his bribery conviction is the belief that a commissioner in one department of a local government can secretly work as a consultant for a third party with respect to its contract negotiations with a different department of the same local government. He relies on the City of Los Angeles Governmental Ethics Ordinance in the Los Angeles Municipal Code (LAMC) at section 49.5.1 et seq., but it offers him no reprieve. The evidence shows that he violated LAMC section 49.5.5 and section 49.5.11, subdivision J. LAMC section 49.5.5 prohibits a city official from using his or her office to induce any person to provide the city official with anything of value. LAMC section 49.5.11, subdivision J provides: "No member of a board or commission of the City shall, for compensation, communicate directly, either personally or through his or her agent(s) at the member's behest, with any City official for the purposes of attempting to influence action on municipal legislation on behalf of any other person." Municipal legislation means any legislative or administrative matter proposed or pending before an agency. (LAMC, § 48.02.) Wong was a public official who induced Evergreen Marine to pay him, and he was a commissioner who received compensation to influence action on a pending administrative matter, i.e., the negotiation with Evergreen regarding an amendment to Permit 888.
Wong suggests that LAMC section 49.5.11, subdivision D applies. It provides: "For one year after leaving City service, no other former elected City officer, member of the City Ethics Commission or other former high level official shall, for compensation, engage in direct communication with any agency for the purpose of attempting to influence any action or decision on any matter pending before an agency on behalf of any person other than an agency." (LAMC, § 49.5.11, subd. D.) According to Wong, this subdivision applies because his lobbying activities in 2002 and 2003 occurred more than four years after he left the Harbor Commission. We cannot subscribe to this reasoning. This subdivision does not apply because he did not leave City service until 2004.
Regarding the issue of corrupt intent, Wong contends that both Shyu and he believed in good faith that he could consult with Evergreen Marine because he had not been on the Harbor Commission for four years. In Wong's view, his good faith is evident because he reported his compensation from Evergreen Marine on his 2002 Form 700. He also contends that he made no secret of his connection with Evergreen in arranging various meetings and urging City officials to consider Evergreen's proposals for amending Permit 888. But he failed to cite any evidence that he told Edwards, Keller, Mayor Hahn or any other City official of his relationship with Evergreen. Moreover, we note that in his e-mail to Edwards regarding Evergreen's proposals, Wong asked Edwards about what he thought "our strategy" should be, meaning the City's strategy. In his fax to Edwards during the Asia trip, Wong specifically stated: "I have worked so hard on this for you [and] the mayor. You asked me to bring a major airline to Ontario and I have put my reputation on [the] line here." These communications with Edwards are just two examples of proof establishing that while Wong was working as an advocate for Evergreen, he masqueraded as an advocate for the interests of Edwards, Mayor Hahn and the City.
According to Keller, he spoke to Wong sometime in 2002 or 2003. Wong said that he intended to be a consultant for "port clients" including Evergreen Marine. When Keller expressed concern that Wong would have a conflict of interest, Wong said he was still mulling the matter over and had not made up his mind. Later, Wong told Keller he was not going to become a consultant, but if he decided to assist Evergreen, it probably would not be for compensation. This is the only evidence cited by Wong that he revealed his consulting to City officials.
III. The Evergreen conflict of interest convictions.
In attacking his convictions for conflict of interest in connection with the proposed amendment of Permit 888 for Evergreen Marine, Wong posits that we must reverse because there was no contract for purposes of Government Code section 1090, nor did he have a financial interest in a contract. As for the conviction arising from the EVA Air lease extension, Wong contends that his financial interest was nonexistent or so remote that he cannot be held criminally liable.
We disagree.
Government Code section 1090 provides: "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members." This statute represents the Legislature's decision to codify the common law rule prohibiting public officials from having a personal financial interest in the contracts they form in their official capacities. ( Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1073 [ 103 Cal.Rptr.3d 767, 222 P.3d 214] ( Lexin).) "The evil to be thwarted by [Government Code] section 1090 is easily identified: If a public official is pulled in one direction by his financial interest and in another direction by his official duties, his judgment cannot and should not be trusted, even if he attempts impartiality." ( Carson Redevelopment Agency v. Padilla (2006) 140 Cal.App.4th 1323, 1330 [ 44 Cal.Rptr.3d 881] ( Carson).) Government Code section 1090 applies when a public official has a direct financial interest in a contract. And "[e]ven when a public official's financial interest is indirect, [Government Code] section 1090 will still apply unless the interest is too remote and speculative. [Citation.]" ( Carson, supra, at p. 1330.) As long as a contract is directly or indirectly the result of a conflict of interest, the contractual terms are irrelevant and the courts will not inquire into whether the public suffered a loss. ( People v. Honig (1996) 48 Cal.App.4th 289, 314 [ 55 Cal.Rptr.2d 555] ( Honig) ["criminal responsibility is assessed without regard to whether the contract in question is fair or oppressive"].)
A contract is made by a public official for purposes of Government Code section 1090 if he "had the opportunity to, and did, influence execution [of the contract] directly or indirectly to promote his personal interests. [Citation.]" ( People v. Sobel (1974) 40 Cal.App.3d 1046, 1052 [ 115 Cal.Rptr. 532] [decisional law has not interpreted Gov. Code, § 1090 "in a hypertechnical manner"].) By construing the word "made" in Government Code section 1090 to encompass preliminary discussions, the law casts a broad net over official conduct that might influence a public contract. ( People v. Sobel, supra, at p. 1052.) Thus, a public official can violate Government Code section 1090 even though he did not participate in the contract's execution. ( People v. Sobel, supra, at p. 1052.)
A public officer need not acquire an interest in a contract (as in the case of self-dealing) or share in the contract's profits to come within the Government Code section 1090 proscription. ( Honig, supra, 48 Cal.App.4th at p. 315.) Government Code section 1090 targets any interest which would prevent a public official from exercising absolute loyalty and undivided allegiance to the governmental entity he or she serves. ( Honig, supra, at p. 315.) Even if a public official makes a contract in which his interest is small or indirect, a crime is established so long as the interest "`is such as deprives the [state] of his overriding fidelity to it and places him in the compromising situation where, in the exercise of his official judgment or discretion, he may be influenced by personal considerations rather than the public good.' [Citation.]" ( Ibid.) Labels and titles and fictional divides that create illusory separation between a public official, a clandestine benefactor and a source of income or other benefit must be ignored. Instead, we must "`look behind the veil which enshrouds [the] activities [of public officials and their clandestine benefactors] in order to discern the vital facts. [Citation.] However devious and winding the trail may be which connects the officer with the forbidden contract, if it can be followed and the connection made, a conflict of interest is established.' [Citation.]" ( Ibid.)
The proposed amendment of Permit 888 negotiated by Keller was not approved, but Permit 888 was eventually amended. Wong pushed the City to negotiate with Evergreen while he was a LAWA commissioner and DWP commissioner. The evidence showed that in May 2003, only four months before Permit 888 was amended, he wrote an e-mail update of his lobbying activities to Chiu. There is a reasonable inference that Wong's participation in the preliminary discussions in 2002 and 2003 indirectly led to the Permit 888 being amended. Accordingly, there is substantial evidence that he "made" a contract in his official capacity. It does not matter if, as Wong contends, the 2003 amendment lacked the reduced rent Evergreen wanted. The policies set forth in Lexin, Carson and Honig are squarely implicated.
Based on Wong's actions and communications, the evidence was sufficient to support a finding that he received $100,000 to influence the City's negotiations with Evergreen. And there is an inference that Wong would not have championed Evergreen's cause without remuneration. Thus, Wong was financially interested in the amendment to Permit 888. ( Carson, supra, 140 Cal.App.4th 1323 [for purposes of Gov. Code, § 1090, a public official who obtains an extortion payment in exchange for approval of a public contract has an indirect financial interest].)
Turning to the conflict of interest conviction arising from the EVA Air lease extension, the sole point of contention is whether Wong had a financial interest. We easily conclude that he did.
As he concedes in his briefs, Wong voted on the extension and it was approved. He also concedes that he accepted $100,000 from Evergreen Marine, which was part of Evergreen, the conglomerate that negotiated with the City for an amendment of Permit 888. It is easy to infer that Evergreen would have been none too pleased if a public official who was being bribed by one Evergreen company voted in a manner contrary to the interests of a second Evergreen company. Thus, Wong was placed in a compromising position when he voted on the extension. The trail has twists and turns, but it can be traced. We therefore conclude that Wong had a financial interest in the extension for purposes of Government Code section 1090.
IV. The perjury conviction.
Wong argues that the omission of his income from Evergreen on his 2003 Form 700 was not material and he therefore did not commit perjury. This nonsensical argument fails on its face.
Every person who willfully makes a false statement under oath is guilty of perjury if the statement is material. (§ 118, subd. (a).) An omission on a financial disclosure form is material "if there is a substantial likelihood that a reasonable person would consider it important in evaluating . . . whether a public official can perform the duties of office free from any bias caused by concern for the financial interests of the official or the official's supporters." ( People v. Hedgecock (1990) 51 Cal.3d 395, 406-407 [ 272 Cal.Rptr. 803, 795 P2d 1260] ( Hedgecock) [affirming the convictions of a mayor for violating state and local disclosure laws and committing perjury based on errors and omissions by him in disclosure statements].)
The parties agree that Hedgecock is controlling.
A public official's acceptance of a bribe is per se material because it demonstrates dishonesty and unfitness for public duty, and it undermines the integrity of public office. Wong accepted $5,000 a month for 20 months. His failure to report these payments on his 2003 Form 700 was perjury. In order to rewrite the story, Wong argues that his omission could not possibly have been material because Mayor Hahn's staff did not read the 2003 Form 700 and did not consider it when determining whether Wong could participate in the Evergreen negotiations or vote on matters involving EVA Air. But the offense was complete once Wong signed the 2003 Form 700 and filed it. Section 118 does not require as an element of perjury that a declaration or certification under oath be read by a third party and relied upon.
According to the City, Wong's 2003 Form 700 was filed with LAWA and the City's Ethics Commission. Mayor Hahn's chief of staff testified that the mayor's office did not review these forms.
DISPOSITION
The judgment is affirmed.
Doi Todd, Acting P. J., and Chavez, J., concurred.
Appellant's petition for review by the Supreme Court was denied November 17, 2010, S186015. Werdeger, J., did not participate therein.