Here's something you might be interested in.
In a tentative ruling this afternoon (Oct. 14), Superior Court Judge John S. Meyer turned down the City of San Diego's attempt to have the Kessler vs. San Diego suit thrown out, or at least parts of it thrown out. The final ruling will be tomorrow morning. Kessler was deputy director of the Economic Development Division. He cooperated with an investigation by the Federal Bureau of Investigation and a San Diego Police detective into activities of Little Italy political powerhouse Marco Li Mandri and convicted felon Joe Mannino. The exhaustive investigation charged that the two engaged in corruption. However, District Attorney Bonnie Dumanis did not do anything with the case. Kessler sued the City. Judge Meyer says that Kessler's job was protected by law and he couldn't be fired for such activity. The City said Kessler was fired for budgetary reasons, but the City couldn't show that Kessler's job was eliminated because of the budget. There was also a lot of testimony showing that Mayor Sanders's office was mad at Kessler for his cooperation. On July 9, Meyer ruled that Sanders had to give a deposition. He has been deposed, says Corey Hanrahan, one of Kessler's attorneys.
In a tentative ruling this afternoon (Oct. 14), Superior Court Judge John S. Meyer turned down the City of San Diego's attempt to have the Kessler vs. San Diego suit thrown out, or at least parts of it thrown out. The final ruling will be tomorrow morning. Kessler was deputy director of the Economic Development Division. He cooperated with an investigation by the Federal Bureau of Investigation and a San Diego Police detective into activities of Little Italy political powerhouse Marco Li Mandri and convicted felon Joe Mannino. The exhaustive investigation charged that the two engaged in corruption. However, District Attorney Bonnie Dumanis did not do anything with the case. Kessler sued the City. Judge Meyer says that Kessler's job was protected by law and he couldn't be fired for such activity. The City said Kessler was fired for budgetary reasons, but the City couldn't show that Kessler's job was eliminated because of the budget. There was also a lot of testimony showing that Mayor Sanders's office was mad at Kessler for his cooperation. On July 9, Meyer ruled that Sanders had to give a deposition. He has been deposed, says Corey Hanrahan, one of Kessler's attorneys.
I called it-if the judge OKed a deposition, he was not going to toss the case on a Sumamry Judgment motion.
And since it won't be tossed, get ready for a confidential settlement at some point between now and the trial date.
This case will NOT go to trial.
I wonder what exciting things are happening in City Hall between todays tentative ruling and tomorrow at 10 a.m. in Judge John S. Meyer's Superior Court.
I just heard that Channel 10 KGTV has already interviewed Scott Kessler and they are now following this story...
BTW: This story is a "continuation" of Don Bauder's Blog from earlier today: http://www.sandiegoreader.com/weblogs...
Reply to the comment #1 Going before the Judge is no fun
Since you called this decision right What are the chances of a fight
Have any thoughts about Judge Meyer's Is he good at putting out big fires
Please share all that you now know Will Scott get really big dough
Who will now plead both the City and Mayor's case A giant settlement would be such a big waste
Since you know the laws about how to sue Thanks again SP for all that you do
from http://www.sandiegoreader.com/weblogs/np-star/2010/aug/26/rhyme-a-day/#c74617
Re #1:
Agreed. The City won't allow that to occur, it would expose too many in power. Damned shame though. The real suckage, is that taxpayers get to foot the bill once again.
RE #1 & #4 If they do settle behind closed doors, do you know if the City will have to make all the conditions of the settlement public, since the City voters will have to "foot the bill once again"?
If they do, I bet Mr. Kessler's total settlement will make him $D's next millionaire!
Re #5:
Kessler will make out very well, as will his lawyer.
Thanks again SP for all that you do
Some say it's true, I may not be smart But little do they know, I have a big heart
There is one thing, that I do know Kessler will soon, be rolling in dough
In this grudge match, the Mayor's going to the mat It must be because, he is soooooo fat
I pray to my God, high and above Because it is this City, that I do love
Kessler will make out very well, as will his lawyer.
=====
If this gets anywhere NEAR trial the lawyer is going to make out MUCH BETTER than Kessler will.
If the lawyer is smart he is billing out at $400-$500+ per hour, and billing for everything he can.
Becuase this is an all or nothing deal on attorney fees, you need to build the hours up, because in this cases you can win you can average out for the cases that are lost.
Like I said, I would not be surprised to see high 6 figure to low 7 figure lawyer fees and costs.
If they do settle behind closed doors, do you know if the City will have to make all the conditions of the settlement public, since the City voters will have to "foot the bill once again"?
The city will try to insert a confidentiality clause in the settlement, but if the settlement is paid with tax dollars-which it will be-then it is a public record.
They will have to release the info under a FOIA request.
Response to post #1: I think you may be right. The City won't let it go to trial. It would be too embarrassing -- for Sanders and his lackeys, for Dumanis, for others. Best, Don Bauder
Response to post #2: To my knowledge, the only medium following this story has been the Reader, which broke it March 3, printing copies of Kessler's suit and the FBI/police report on alleged corruption of Li Mandri and Mannino. I think some publication made reference to the Reader's story, but that's it. Best, Don Bauder
Reply #5 & #7
I admit, I stand in awe of your poetry I saw
Surfpuppy you olde dawg keep adding to this blog
Thanks Again for all that you do San Diego really needs you
Response to post #3: Tell 'em your story, SP. Best, Don Bauder
Reply #8 & #9
San Diego will be the big winner Now we'll have much less media $pinners...
Response to post #4: There are some other things that haven't come out yet, although I have hinted at them recently. Best, Don Bauder
Response to post #5: I have't given much thought to what the settlement will be, if there is a settlement. Best, Don Bauder
Response to post #6: That's quite possible. Best, Don Bauder
Response to post #7: JW doesn't think you have a big heart. Best, Don Bauder
Response to post #8: I have no guesses on legal fees. Best, Don Bauder
Response to post #9: But they will take their time releasing the information. Best, Don Bauder
Response to post #12: SurfPuppy is a puppy, not an olde dawg. At least, that's what he asserts. Best, Don Bauder
Whether the matter goes to trial (hoping it will) or not, we now know a number of things that are contained in the tentative order. I doubt that there will be a reversal tomorrow, as the Court appears to have pretty much failed to buy into arguments by the City of San Diego regarding a non-retaliatory reason for firing Kessler.
From the tentative ruling (parts left out may be juicy with details): "Defendant City of San Diego's motion for summary judgment or, alternatively, summary adjudication is denied."
....
"The parties agree that in order to establish a cause of action for violation of Labor Code § 1102.5, a plaintiff must show (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the two. It is then the defendant employer's burden to provide a legitimate, non-retaliatory explanation for its acts. Once this has occurred, the plaintiff employee must establish that the employer's explanation is merely a pretext for retaliatory termination. (Patten v. Grant Joint Union High School District (2005) 134 Cal.Appl.4th 1378, 1384; and see Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)"
"Defendant argues, among other things, that Plaintiff is unable to establish a prima facie case because he cannot prove causation. Of note, Defendant's focus on causation indicates Defendant concedes that Plaintiff engaged in a protected activity and that Defendant subjected him to an adverse employment action."
....
"The Court disagrees with Defendant's position and finds there is a triable issue of fact as to causation. While Defendant's evidence indicates its employees (e.g., COO Goldstone and Deputy Chief Anderson) knew about Plaintiff's cooperation with the SDPD and FBI investigation of City affiliate Marco LiMandri, had no issue with it, and never stopped him from that interaction, Plaintiff's evidence indicates the Mayor's office did and that once the Mayor's office objected, the City did as well."
"All of this evidence creates a triable issue of material fact regarding whether Plaintiff's decision to provide the SDPD/FBI report discussing potential conflicts of interest in City business factored into the City's decision to terminate Plaintiff. More specifically, the evidence presented lends credence to Plaintiff's allegation that he was fired not because of budgetary issues, but because he participated in the SDPD/FBI investigation of City matters and passed the related report on to the Ethics Commission. The Court's conclusion as to the first cause of action applies to all four causes of action at issue in the motion."
[Discussion of Defendant's "premature case" argument, but prior Ethics Commission complaint not required] "Accordingly, the motion is denied as to this argument as well."
....
One can only wonder tonight just what pressures are being brought upon Judge Mayer. Why are these preliminary rulings issued one day and the final ruling a day or more later? If the judge has made a decision it should be released; if he is still "on the fence" nothing should be said. Whatever the reason for this judicial practice, it looks like an open door to corruption.
To find the tentative ruling, go to the San Diego Superior Court website and select CIVIL from the main menu options; the dropdown menu should include a TENTATIVE RULINGS option. All you need at that point is the case number:
37-2009-00092899-CU-WE-CTL
... stuffed into this page:
http://www.sandiego.courts.ca.gov/v3tr/scsdrulings.aspx
RE 23:
It gives an honest attorney another chance to pull an all-nighter to prepare oral arguments... but the thing about summary judgment is that if one isn't fully prepared to do battle before actually going to trial, then one should not move for summary judgment of the whole or in the alternative, summary adjudication of part of the case.
I still predict that Pudge Sanders will not have to appear for the deposition or testify in court. The City will try to get Kessler to agree to hold off on the deposition, in exchange for settlement negotiations. I predict that Kessler will settle his case with the City for $1.5 million and that Sanders will not be deposed. There's a lot of legal risk for the City if Sanders is deposed, particularly if he shows up for the deposition at the tail end of a three day bender, or after a liquid lunch.
Why won't Bonnie Dumanis prosecute any criminals???? First this guy and then the criminal who kidnapped the City College student,Diana Gonzalez. And then when Bonnie let him out, he killed her in a men's restroom. How many others have been let go ??
Time to go Bonnie. Collect your HUGE, HUGE City Employee Pension like the rest of the crooks. Keep feeding at the Public Trough till the day you die.
Once upon a time there was a DA in San Diego who was not corrupt, or so says Don Bauder. (Don may be right.) But that DA made a pair of outrageously wrongheaded prosecutions of "sex offenses" that never were. It was time for Miller to go. Many of us, and I include myself, voted for "Not Miller" and got Pfingst. Then we watched him make a a series of foolish and wrongheaded prosecutions, the worst of which was the case against the kids in the Crowe stabbing case. He had to go. And we voted again for "Not the current DA", i.e. Not Pfingst, and got Dumanis.
Lord help us if we vote for Not Dumanis! If the voters vote her out, who will we get? Goldsmith? It can only be fervently hoped that next time we vote FOR a good candidate, and not just AGAINST a dufus or crook. Be careful in wishing for something, you might just get it, and not understand what you wanted.
Is there an honest prosecutor out there? Will he/she run for the job of DA? If we have much more of this current power structure, the city and county will look like Newark, only worse.
RE "I still predict that Pudge Sanders will not have to appear for the deposition or testify in court":
It is quite possible that the deposition of hiz honor has already taken place.
See the tentative ruling as to the details I did NOT post above, then compare with the tentative ruling to deny hiz honor's protective order to see what was missing back then but available for consideration now.
Also, summary judgment can be postponed to obtain necessary depositions (refer back to court's discussion in denying protective order) because filing paperwork several weeks ago to oppose summary judgment without that stuff would have been... short-sighted. I am no lawyer but I say from experience: it would have been very professionally short-sighted. Kessler's attorney can read the Code of Civil Procedure, and from the language I posted earlier, there was enough evidence presented (that was not available for previous denial of protective order) for the Court to differentiate hiz honor's behavior from that of anyone else working for the City of San Diego and supervising Kessler.
Right now, if it does go to trial, it looks like Kessler prevails... especially in light of Visduh's comments on consequences above.
Response to post #22: A key point is that there is "a triable issue of fact." The case should go to a jury. Best, Don Bauder
Response to post #23: Yes, it has always looked fishy, but that is how the process goes -- tentative ruling followed by final ruling. The City gets another chance to argue its points again today (Friday Oct. 15). Best, Don Bauder
Response to post #24: That's one way to get it. Best, Don Bauder
Response to post #25: In the tentative ruling, the City's attempt for summary adjudication didn't fly, either. Best, Don Bauder
Response to post #26: Sanders has already been deposed. Best, Don Bauder
Response to post #27: Dumanis won't go after anyone if the case might embarrass a friendly politician, donor, or establishment member. She is, by far, the most political DA San Diego has ever had. Best, Don Bauder
Response to post #28: Another thing to remember about Pfingst: he helped to structure the deal that got John Moores off the hook in the Valerie Stallings matter. Best, Don Bauder
Response to post #29: Again, Sanders has already been deposed. And as one who has followed this since early March, I can say that there is a bundle of evidence about the role of the mayor and his aides. Best, Don Bauder
Adding to # 24 Here is that link to the "Tentative Ruling": http://www.sandiego.courts.ca.gov/v3tr/ViewRulingsPDF.aspx?CaseNo=37-2009-00092899-CU-WE-CTL&SelDates=10/15/2010&EventId=672032
Reply #26
RE: "I predict that Kessler will settle his case with the City for $1.5 million and that Sanders will not be deposed. There's a lot of legal risk for the City if Sanders is deposed, particularly if he shows up for the deposition at the tail end of a three day bender, or after a liquid lunch."
If all this is factual then Kessler should hold out for much, much more as he seems to have a winning hand! I'd suggest a 10 Million Dollar settlement, after which Scott Kessler will leave town ASAP for parts unknown...
Why are these preliminary rulings issued one day and the final ruling a day or more later?
You need to do tenatative rulings in order to allow the parties a chance to rebutt or refute the law the judge is ruling on. They are very helpful.
Not all counties/courts have in CA "tenatative rulings" where you get a chance to see the courts view before the ruling becoems final- and it is a nightmare in those courts because the judge will ask if you want to argue any points, and you can't b/c you have no idea what the court is going to say or rule on. Then the judge will READ his ruling from the bench (and you wont have a copy of it) and you cannot argue it.
So it is important to have the ruling released the day/week before and allow the parties a full and fair chance to argue the law.
Having said that, it is extremely rare to have a tentative ruling reversed or even modified-but it does happen occassionally.
There's a lot of legal risk for the City if Sanders is deposed, particularly if he shows up for the deposition at the tail end of a three day bender, or after a liquid lunch.
Is this true?????......does Fatty Sanders hit the bottle?? I am really shocked at that-and that is not being sarcastic.
Reply #40 I'm just hoping for no delays until after the election...
That would be a big loss to San Diego!
Once upon a time there was a DA in San Diego who was not corrupt, or so says Don Bauder. (Don may be right.) But that DA made a pair of outrageously wrongheaded prosecutions of "sex offenses" that never were. It was time for Miller to go. Many of us, and I include myself, voted for "Not Miller" and got Pfingst. Then we watched him make a a series of foolish and wrongheaded prosecutions, the worst of which was the case against the kids in the Crowe stabbing case.
The Dale Akiki, Jim Wade and especially the Crowe case are some of the worst abuses of prosecutorial misconduct I have ever witneesed. I am 100% convinced Miller continued his attack on Akiki at the request of a prominant couple, Jack and Mary Goodall-Jack at the time was CEO of Foodmaker, parent companey of Jack in the Box. It was really disgusting to see that case get to trial.
The Crowe case makes my stomach turn everytime I see reference to it. Attacking children with interrogation methods like the ones those cops used should have been grounds for terminating the cops.
This is the problem with the justice system today-there is absolutely no accoutnability in it. Just as Nifong was disbarred in the Duke lacrosse case, these DA's should have also been disbarred IMO. And that includes the DDA who prosecuted Dale Akiki, Mary Avery-same with Michael Crowe.
There is evidence that the Mayor's office became concerned it would be dragged into the investigation. (PNOL, Exhibit 5, page 69:17-70:15; and Exhibit 8, page 19-22.)
Additionally, Plaintiff has presented evidence that the Mayor was a support of Marco LiMandri, and that Marco LiMandri was a financial supporter of the Mayor. (PNOL, Exhibit 8, pages 35:18-37:14.)
Finally, there is evidence that Defendant's employees told Plaintiff to stop cooperating with the SDPD and FBI. (PNOL, Exhibit 8, pages 15:17-32:6.)
Oh my, KFC Sanders is going down for the 10 count.
IF (a big if) there was ever ANY doubt Sanders is a slimeball, this removes it.
Response to post #43.
You and I are on the same page with everything you said. Miller may have allowed his personal friendship with the Goodalls to get in the way of his judgement. I doubt he was bribed. (Is that corruption, when no money or favors are involved?) But the result was the same: an innocent man was accused of some of the worst crimes imaginable, and it was all smoke. Yes, that woman deputy DA should have been disbarred, then drawn and quartered.
Now we have Dumanis having to answer for failing to prosecute this thug for kidnapping his wife, which inevitably led to her murder. And that despite the fact that she had family members taking her everywhere she went. D's malfeasance in office runs toward failing to prosecute the guilty. But she already has another four year term, and wants (she has said) to make that one her last. Even if she's up for reelection in four years, will the voters remember? Which provokes the biggest outrage, failing to prosecute the guilty, or prosecuting the obviously innocent? Or is there any outrage left in SD and the rest of this county? Recall the DA? Technically it could be done; in fact it would be most unlikely.
21
surf puppy is the Silver Surfer in puppy disguise....he surfs the PoliticoEconomic waves and scopes out all the sewage floating in the water
he calls out the hazardous conditions for all of us!!!
thx Puppy for ur warnings!!!
milk bone treat comin' atcha!!!
so does that mean ur new name is Silver Surfpuppy???
the cops often go way beyond the "fudge factor" in their interrogations and young people should never have to talk to the police without their parents there
(those below 18 years of age)
RE "[Details from tentative ruling] Oh my, KFC Sanders is going down for the 10 count. IF (a big if) there was ever ANY doubt Sanders is a slimeball, this removes it."
I said there was juicy stuff in the details I did not post...
RE not noticing Don Bauder's last blog post line on deposition already a done deal: the headline got me too excited to read all the way to the end...
milk bone treat comin' atcha!!!
=========== Yummy!
Response to post #38: But it wasn't finalized today, as posted above. The City will stop at nothing to bury this matter. Best, Don Bauder
Response to post #39: The judge's ruling is not yet final (see post above) and the mayor has already been deposed. Best, Don Bauder
Response to post #40: This one will be followed very closely. Best, Don Bauder
Response to post #41: I have no idea if the mayor imbibes or not. He seems incoherent at times, but that's a different matter. Best, Don Bauder
Response to post #42: As I reported above, Kessler's lawyer has a week to amend his response to the City's request for a summary judgment, and then the City wants to do more discovery. That would almost certainly carry it beyond the election. Best, Don Bauder
Response to post #43: Miller was a very good DA. The botched Akiki case was his undoing. I believe you have correctly identified the person who pressured him. Best, Don Bauder
Response to post #44: Your assessment is correct. But it appears the political machine is making sure this case is on hold until after the election. And don't be surprised if it is thrown out, although that would be promptly appealed. Best, Don Bauder
"You need to do tenatative rulings in order to allow the parties a chance to rebutt or refute the law the judge is ruling on. They are very helpful.
Not all counties/courts have in CA "tenatative rulings" where you get a chance to see the courts view before the ruling becoems final- and it is a nightmare in those courts because the judge will ask if you want to argue any points, and you can't b/c you have no idea what the court is going to say or rule on. Then the judge will READ his ruling from the bench (and you wont have a copy of it) and you cannot argue it.
So it is important to have the ruling released the day/week before and allow the parties a full and fair chance to argue the law.
Having said that, it is extremely rare to have a tentative ruling reversed or even modified-but it does happen occassionally."
A darn good explanation. Surfpuppy619 should write a book on CALIFORNIA LAW & MOTION FOR DUMMIES. I really needed it before I botched my own opposition to MSJ last year. As a plaintiff without attorney, I seriously appreciated knowing we had lost the night before the hearing. It allowed me to surrender my sword with some dignity at the hearing the following morning while accepting Judge Hofmann's comments from the bench on the "herculean" public interest effort by non-lawyers despite our Prop. 65 enforcement loss.
Response to post #45: She has her eyes on the mayor's job. If she can do as bad a job as she is doing and arouse no opposition in the community, she would be an ideal mayor for the establishment. Best, Don Bauder
Response to post #46: SP does scoop up the scum. Best, Don Bauder
Response to post #47: Their parents and a lawyer. Best, Don Bauder
Response to post #48: Don't be so sure about that knockout punch. Once again I must caution: this is San Diego. Best, Don Bauder
Response to post #49: If you got addicted to Milk Bones, SP, your enemies would say that's evidence of what they have said about your heritage all along. Best, Don Bauder
59
sounds like SP needs to make city hall the official dumping site for the refuge Mr Bauder
Response to post #63: I would only be welcomed at city hall if I showed up as a corpse. Best, Don Bauder
Reply #65 BEST not go there...
Response to post #65: Not as a corpse anyway. Best, Don Bauder
Reply I'd like to see the IBA "Team" hire you as a consultant; that would be enlightening, at least you would know what questions to ask based upon your past experience with the City "Machine"...
Response to post #67: For no amount of money would I take up such an offer, especially since the job would last five minutes. Best, Don Bauder
Reply# 68 We now really have a Political Problem in San Diego, it used to be a Money Problem; that's why voting for another tax will only make solving our BIG Political Problem much harder!
Vote NO on Prop D Put Politician's to Work
RE "We now really have a Political Problem in San Diego, it used to be a Money Problem; that's why voting for another tax will only make solving our BIG Political Problem much harder!
Vote NO on Prop D Put Politician's to Work":
Passage of Proposition D's half cent sales tax increase is at this point a reward and precedent.
Prop. D would reward the local political structure for having lost just about every pre-trial decision in KESSLER V. CITY OF SAN DIEGO.
Prop. D would create a precedent out of the flawed and possibly illegal wheeling and dealing that accompanied the state negotiations on the 3-month-late California budget, especially as to the lack of prior public disclosure on the $6 billion CCDC deal. The only proper public apology on that matter from the mayor's office should have been accompanied by a resignation.
It makes no sense (once the public wakes up) for city leaders to come at us for a tax increase covering a $70 million budget gap after our strong mayor urges Fletcher in Sacramento to push a new law that gives away $6 billion in future local tax revenues.
from http://www.sandiegoreader.com/news/2010/oct/14/councilmember-marti-emerald-douses-political-fires/#c74898
Above Blog's Reply #8 JW, I DON'T Agree that "Nevertheless, approving Prop D is an appropriate and necessary step toward the solution."
How about commenting on my "Prop D for Dumb will not solve our problems, SD needs to declare Bankruptcy A$AP, in order to get back on firm fiscal footing before our Leaders blow a BILLION Dollars on yet another Downtown $TADIUM, while they ask us to pay them a BUNCH of higher taxes to protect their OWN future Pensions!" +
When Prop D (as in Doesn't) pass what do you and your "Business Leaders" suggest the City do to get out of the Fiscal Hole they have created? I went to the Budget Meeting with the "Revenue Options Prepared for the CRRECC" and it contained NOTHING that would allow the City to reduce it's MAJORITY of Debt which comes from PENSIONS but it did contain a bunch of ADDITIONAL TAXES and fees that Residents will be paying for forever*...
Your comments are slanted about "fixing" our City Fiscal problems and if you feel that I'm misrepresenting the truth, then I challenge you to post a City document listing of how the above or anything short of Bankruptcy will solve our Problems with huge new taxes to support Super High Pay and HUGE Pensions for City Employees and that includes those for the City Council and Mayor!
We now have a Political Problem not a FI$CAL problem in San Diego...
Good Luck, I can't wait to see what you come up with because the IBA "Team" has been working on this for a long time and they at least have the Professional Credentials and the "inside scoop" to see the Big Fiscal Picture!
How about a few hundred words on that, or stop $PINNING the slanted truth?
Response to post #69: The hypocrisy is so thick it can be cut with a knife. When she ran for mayor against Sanders, Frye mentioned that the financial situation was so bad that a tax increase might have to be studied. The U-T immediately told a whopper: it said, and kept repeating, that the basis of her campaign was a tax increase, despite her denials. She won the election but it was stolen from her by the court. Now Sanders wants a tax increase and the U-T is all in favor of it. Best, Don Bauder
Response to post #70: The political leaders are saying of the last-minute secret deal in Sacramento permitting subsidization of a football stadium that while the process was flawed, the end result was glorious. In other words, the end justifies the means. That in itself is a good reason to vote against Prop. D. After it is defeated, citizens should demand a criminal investigation of the secret deal -- the roles of Sanders, CCDC, Fletcher, Maas and others who had been planning the last-second coup since August. Best, Don Bauder
Response to post #71: As I have said, the one possible good thing about a $600 million pro football stadium subsidy is that it would put the City into bankruptcy court, where it now belongs. Best, Don Bauder