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Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for an Award of Reasonable Attorneys’ Fees and Costs CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida | Superior Court of California. Appended Content

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Paula S. Rosenstein Trial Court Documents

CITY OF SAN DIEGO, a municipal corporation and a..., 2007 WL 5879527...

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2007 WL 5879527 (Cal.Superior) (Trial Motion, Memorandum and Affidavit) Superior Court of California.

San Diego County

CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff,

v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an

individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida Corporation; Thompson Aviation Consulting, Inc., a Florida Corporation;

and Does 1-20, inclusive, Defendants.

No. GIC 858344. September 21, 2007.

Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for an Award of Reasonable Attorneys’ Fees and Costs

Paula S. Rosenstein, Esq. (SBN 126264), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, California 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.

I/C/J: Hon. Joan M. Lewis.

Dept.: 65 Time: 8:30 a.m. Complaint Filed: December 13, 2005 Trial Date: Not Applicable Tentative Ruling Available 8/2/07 at 4:00 p.m. at (619) 531-3690 or www.sdcourt.ca.gov

I. INTRODUCTION Counsel for Defendant Tracy L. Means have devoted approximately 600 hours over the past 20 months urging and demanding that the case against her be dismissed as it lacked merit and was frivolous, and when those efforts failed, litigating and finally obtaining a summary judgment demonstrating that the allegations made against Ms. Means lacked merit and supporting evidence. In January 2006, as was appropriate and required by statute, Ms. Means’, through her counsel, demanded that the City provide Ms. Means with a defense to this illegitimate, unwarranted and ill-advised lawsuit as the City is required to do pursuant to Government Code § 995. The City Council, on behalf of the City, refused. This Memorandum will summarize the history of this litigation, address Defendant’s entitlement to an award of reasonable attorneys’ fees under Govt. § 995 and show that the amount of fees requested is reasonable.

II. FACTUAL AND PROCEDURAL BACKGROUND



The facts of this case are well known to this court and will not be repeated here in great detail. In brief, Tracy L. Means was employed by the City of San Diego as a Deputy Director and was in charge of the City’s Airports Division. While she held this position, the City employed the use of a consulting firm, Airport Business Solutions (“ABS”) to provide consulting services related to Brown Field and Montgomery Field, San Diego’s two municipal airports. While ABS’ two principals, Michael Hodges and Roberta Thompson, worked with Ms. Means some of the time, they also worked much of the time for other city employees including the Director of the Real Estate Assets Department, William T. Griffith, members of the City Manager’s office and the City Attorney’s office. The court, after reviewing substantial pleadings and evidence, granted summary judgment against Plaintiffs City of San Diego and the People of the State of California on all seven (7) causes of action alleged against Defendant Tracy L. Means. Defendant tried, at every opportunity, to have Plaintiffs’ dismiss this case and negotiate a resolution to this matter in good faith. Plaintiffs, and specifically, City Attorney Michael J. Aguirre, refused to act in good faith. Despite the fact that as the discovery process proceeded and Plaintiffs discovered no evidence to support their allegations, Mr. Aguirre added allegations rather than subtracted them. Despite the fact that there has never been any evidence of ill-motive, intent to benefit herself or harm the City, let alone evidence of actual fraud, corruption or actual malice, Mr. Aguirre insisted on pressing this case to the ultimate extreme. Further, there are few attorneys well-versed and experienced in the combination of employment and municipal law involved in this unique case. As the court is well aware, there is little, if any law, dealing with the situation of a government entity suing its own employee or former employee. There is no California law exactly on point on any of the issues in this matter. As a result, this lawsuit required extensive legal research in the substantive areas involved to try to tease out what legal precedence or even guidance might exist. It also required exhaustive, detailed review of more than 10,000 pages of documents produced during the discovery process, including many of the policies and procedures established by the City of San Diego. In sum, this case involved new areas of law and substantial amounts of time to be properly prepared for the summary judgment motion and, because one never can predict the outcome of such a motion, for a trial which would have been long and contained difficult legal issues. This case had degrees of difficulty on a variety of fronts which required the expenditure of more time than might typically be found in an average case, including the fact that Plaintiffs’ amended their complaint four times, each time dramatically re-writing the case to include and explore new theories of liability. Plaintiffs undoubtedly engaged in this exercise because the evidence being discovered did not support the legal theories on file. This case, because of the number of witnesses involved, including the parties, but most particularly because of the intricacies of the law associated with the claims in this case, required significantly extra effort on behalf of defense counsel and, more than likely, plaintiffs’ counsel. At the end of the day, Plaintiffs still had no support for their allegations no matter how many twists and turns they attempted.

III. DEFENDANT IS ENTITLED TO RECOVER HER ATTORNEYS’ FEES.

In this case, Defendant is entitled to recover her attorneys’ fees under Government Code Section 995. The City sued Ms. Means for actions allegedly taken over a five year period, all of which were taken by Ms. Means in the course of performing her job duties as Airports Director for the City of San Diego. Pursuant to Govt. Code § 995, the City is responsible for providing a defense for Ms. Means in this lawsuit. Government Code §995 requires that a government entity provide the defense for an employee or former employee when she is sued. Govt. Code §995 provides, in pertinent part: “ ... [U]pon request of an employee or former employee, a public entity shall provide for the defense of any civil action...against him in his official or individual capacity or both on account of an act or omission in the scope of his employment as an employee of the public entity.” (Emphasis added.) I in the Fourth Amended Complaint, the City alleged that Ms. Means failed to follow the rules, regulations and procedures of the City. As the court found in granting Ms. Means’ Motion for Summary Judgment, her alleged actions were taken with the



knowledge, consent, approval and, in some cases, involvement of her superiors, staff of other City departments and City Council members. Throughout this time, Ms. Means received no comments, criticism or training regarding the actions she took which supposedly violated the law. The City, in fact, condoned, ratified her and approved of her actions at the time. Ms. Means was, as the court ruled, acting within the course and scope of her employment during all times at issue in this case. There is no doubt that if the same or similar allegations had been made against Ms. Means by a third party, the City would have provided her with a defense. That obligation is no less present simply because the City Attorney instituted the underlying litigation without City Council approval and authority and without a client department.

A. No Exceptions Provide Escape For The City From Its Obligations

Government Code §995.2 provides three narrow exceptions to the rule requiring the provision of a defense. Specifically, Government Code Section 995.2 provides, in part: “(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following: (1) The act or omission was not within the scope of his or her employment. (2) He or she acted or failed to act because of actual fraud, corruption or actual malice. (3) The defense of the action or proceeding by the public entity would create a specific conflict of interest between the public entity and the employee or former employee. For the purposes of this section, “specific conflict of interest” means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity.” None of them applies to this situation. The court, in granting Ms. Means’ MSJ, found as a matter of law that Ms. Means was acting within the course and scope of her employment and without actual fraud, corruption or actual malice - exceptions (1) and (2). Since she was always acting within the course and scope of her employment and without actual fraud, corruption or actual malice, there can be no conflict of interest - exception (3).

B. Section 995.4 Is Inapplicable In This Case

Plaintiffs may try to argue that Government Code Section 995.4 prohibits them from being ordered to pay for Ms. Means attorneys fees and costs incurred in defending this suit. Govt. C. §995.4 deals with actions brought by public entities and states, in pertinent part, that a public entity may provide for the defense of: “a) an action or proceeding brought by the public entity to remove, suspend or otherwise penalize its own employee or former employee ... b) an action or proceeding brought by the public entity against its own employee or former employee as an individual and not in his official capacity ...” While Plaintiffs may have alleged facts and theories which might fall under sections (a) or (b), the court has found, as a matter or law, that Ms. Means is not liable in any way to them. Moreover, since it has been determined that she was acting in the course and scope of her employment and without actual fraud, corruption or actual malice, she was sued in her official capacity and not as an individual. The facts determine in what capacity a defendant is sued, not the framing of the suit by the plaintiff in the action. As such, this section does not protect Plaintiffs.

C. Summary



Government Code Section 995 is a mandatory statute. In a civil suit, the public entity must provide a defense for an employee who is sued. None of the exceptions provide a safe harbor for Plaintiffs. Therefore, reasonable attorneys fees must be awarded to Defendant Tracy L. Means so that she does not suffer further damage as a result of this frivolous suit.

IV. REASONABLE ATTORNEYS’ FEES SHOULD BE AWARDED.

Under Govt. C. §995, reasonable attorneys’ fees should be calculated by the “lodestar” method. Further, Plaintiffs should be awarded attorneys’ fees at a rate which includes a multiplier to account for the degree of difficulty and risk, along with the public benefit, of defending this case. To establish the lodestar, or base rate, the court first considers the reasonable amount of time spent on the case and then sets a reasonable hourly amount as compensation for the attorneys performing the work. Serrano v. Priest (1977) 20 Cal 3d 25, 48. Commentators have concluded, “It is irrelevant to the lodestar calculations whether the parties’ fee agreement contemplates a fixed hourly rate or contingency fee”. Chin, Cathcart, Exelrod & Wiseman Cal. Pract. Guide (Employment Litigation, The Rutter Group, 2001, 17:686). The lodestar method applies to a statutory attorneys’ fees award unless the underlying statute provides for another method of calculation. Meister v. Regents of the University of California (1998) 67 Cal App 4th 437, 448-449. In this case, Govt. C. § 995 does not provide for an alternative method of calculation. In determining the amount of reasonable attorneys’ fees, the court must determine both the reasonable amount of time to have been spent on the case and a reasonable hourly rate for the attorneys on the case. In determining a reasonable hourly rate, the prevailing rate charged by attorneys of similar skill and experience in the relevant community should be considered. PLCM Group, Inc. v. Drexler (2002) 22 Cal 4th 1084, 1095. Other factors to be considered include the attorneys’ skill and experience, the nature of the work performed, the relevant area of expertise and the attorneys’ customary billing rates. Flannery v. Calif. Highway Patrol (1998) 61 C.A.4th 629, 632. Once the reasonable rate is determined, the court has the discretion to adjust the basic lodestar rate. In making a determination as to whether a multiplier should be used, the court should examine the novelty and difficulty of the questions involved; the skill displayed in presenting them; the extent to which the nature of the litigation precluded other employment by the attorneys; and the contingent nature of the fee award. Serrano v. Priest, supra, at 49. The purpose of a fee enhancement is “primarily to compensate the attorney for the prevailing party at a rate reflecting the risk of non-payment in contingency cases as a class”. Ketchum v. Moses (2001) 24 Cal 4th 1122, 1138. The aim is to compensate attorneys for their services at fair market value as an inducement to accept such matters. Fair market value should include a premium for the risk of non-payment or delay in payment of attorneys’ fees. Id. at 1138.

A. Determining Reasonable Fees to be Awarded

As indicated above, the court must determine a reasonable hourly rate for the attorneys involved in the litigation. In this case, Attorney Paula S Rosenstein, with some assistance from her law partners, represented the Defendant in this matter. Ms. Rosenstein is an attorney with twenty years of experience who practices primarily in the area of employment law. Within that specialty, she spends approximately sixty percent of her time representing individuals in a variety of employment matters, including, but not limited to termination, disciplinary and contract matters. She has represented individual public employees with respect to employment issues on numerous occasions. The other forty percent of her time is spent advising employers on employment matters. In addition to employment law, Ms. Rosenstein represents and litigates on behalf of domestic partners, negotiates and litigates other contract and business matters. Her usually hourly rate varies depending on a variety of factors including the complexity of the case and the challenges posed by the case. In this case, $400.00 per hour is appropriate given the complexity and voluminous nature of this case, as well as the degree of skill required and used to



defend Ms. Means. Her partner, Bridget J. Wilson has been an attorney for thirteen years with a civil litigation practice that has included military, employment, civil rights and personal injury law. Ms. Wilson’s usual hourly rate varies depending on various factors. Because of the factors present in this case, $300 per hour is an appropriate and reasonable hourly rate. Although employment law is related to the municipal law and factual allegations litigated here, Defendant could not locate counsel with experience litigating these specific matters as it is incredibly rare for a public entity to sue its own employee. This fact must be considered in the analysis as it demonstrates the novelty and difficulty of the questions involved. The challenges faced in following Plaintiffs’ case as it morphed repeatedly throughout the last 20 months and in preparing the motion for summary judgment in this matter also demonstrates the novelty and difficulty of the questions involved in this case. The second factor to be considered is the skill Defendant’s counsel displayed in presenting the questions involved in this matter. Based upon the ultimate ruling, it is apparent that Defendant’s counsel skillfully presented the complex questions, facts and law to the court such that it was able to grant Defendant’s Motion for Summary Judgment. The third factor to be considered in whether to adjust the lodestar is the extent to which the nature of the litigation precluded other employment by the attorneys. As will be evidenced during the portion of this brief discussing the amount of time counsel put into this case, it is clear that there was a severe limitation on the amount of other work which defense counsel could take on during the pendency of this matter, and particularly in the January 2006 through August 2007 time frame. During that time frame, more than ten depositions were taken by Plaintiffs and Defendants, multiple motions were presented to the court, including the extensive and detailed Motion for Summary Judgment, and the defense was being prepared for what was sure to be a lengthy trial. Obviously, this time commitment had a severe impact on defense counsel’s practice. The fourth factor to be considered in determining whether to adjust the lodestar is the contingent nature of the fee award. In this case, given that there is unsettled law in the area, and, to some degree, no guiding law in the area, there was significant risk in taking and pursuing this litigation. In support of the Petition for this fee award, Defendant is submitting the Declarations of Paula S. Rosenstein and James F. Pokorny, along with the declarations filed by the attorneys in the case of Torres v. City of San Diego, GIC 852293. The court, in hearing the attorneys fees motion in that case, granted fees at the hourly rates requested by the attorneys in their declarations. That case has many similarities to the one at issue here. These declarations confirm the level of novelty and skill required by this case as well as the fair market value and community standard for hourly rates for attorneys with the skill level demonstrated here.

1. Defendant’s Lodestar:

In this case, including the time spent on this attorneys’ fee Petition, which, under Serrano, is also compensable, Attorney Paula S. Rosenstein has spent, as of the filing of this motion, 585.70 hours on this matter since 2005. Attorney Bridget J. Wilson spent 19.30 hours on this case during the same time frame for a total number of hours of 605. (See Notice of Lodgment, Exhibit 1 .) At their respective hourly rates of $400.00 and $300.00 per hour, the base, or lodestar, for an attorneys’ fee award is $240,070.00. There will, of course, be additional time spent between the filing of this motion and the conclusion of the case. The amount of additional time will be addressed in Defendant’s Reply papers for this motion.

2. Defendant’s Lodestar is Reasonable:

Under California law, parties like the Plaintiffs who “achieve excellent results are entitled to a fully compensatory fee. Normally, this would encompass all hours reasonably expended on the litigation and, indeed, in some cases of exceptional success, an enhanced award may be justified”. Hensley v. Eckerhart (1983) 461 US 424, 435, cited with approval in Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal App 3d 836, 849-850. Under this standard, Plaintiffs are entitled



to be compensated for pre-litigation services, as well as time spent on the litigation. Counsels’ “sworn testimony that, in fact, it took the time claimed as evidence of considerable weight on the issue of the time required in the usual case”. Perkins v. Mobile Housing Board (1988, 11th Cir.) 847 F2d 735, 738. Once the moving party has presented a fully documented claim, the burden shifts to the opposing party to present substantial evidence that challenges the accuracy and reasonableness of the hours claimed by the moving party. See Gates v. Gomez (1995, 9th Cir.) 60 F3d 525, 534. In this case, Defendant’s fee claim is based entirely on detailed, contemporaneous time records that describe every activity for which compensation is claimed. See Notice of Lodgment, Exhibit 1. Further, the record shows that this case was thoroughly and efficiently litigated over vigorous opposition by Plaintiffs. Defense counsel did her best to do the required work in a productive and efficient manner to maximize her respective skills. Paula Rosenstein decided the overall direction, strategy and expenditure of labor during the litigation. This was a complex and in-depth case with claims that kept changing and in an area of law which has little guidance for the attorneys to follow. As such, the time expended is reasonable.

3. The Hourly Rates Claimed by Plaintiffs’ Attorneys Are Reasonable:

Defendant’s attorneys are entitled to be compensated at hourly rates that reflect the reasonable market value of their services in the community. Reasonable rates are those charged by private attorneys of comparable skill, reputation and experience for similar litigation. See, PLCM Group. Inc. and Flannery, supra. Both attorneys are well experienced practitioners. Their rates of $400.00 and $300.00 per hour are consistent, or below, the rates charged by San Diego attorneys of equivalent experience, expertise and skill. The fact that these rates are more than reasonable are supported by the Declarations filed herewith.

VI. DEFENDANT IS ENTITLED TO RECOVER HER NON-STATUTORY COSTS

Pursuant to Government Code §995, Ms. Means is entitled to have all of the costs of defense covered if she is sued for actions taken in the course and scope of her employment. Since the court has ruled that this is the case, she is entitled to recover not only statutory costs covered by the memorandum of costs but also non-statutory costs. In this case, non-statutory costs included items such as duplication charges, postage, telephone and facsimile charges, expert fees, Lexis research fees and various third-party charges such as duplication and messenger fees. The non-statutory costs total $5,763.67 and are detailed in Exhibit “3” to Defendant’s Notice of Lodgment. For the court’s additional edification, exhibits to the Notice of Lodgment delineate Defendant’s total costs of $14,137.84 (Exhibit “2”) and statutory costs of $8,374.17 (Exhibit “4”).

V. CONCLUSION

Based upon the foregoing law, facts and argument, it is clear that Defendant is entitled to an award of attorneys’ fees, and to recover her statutory and non-statutory costs from Plaintiffs. The Declarations, facts and background of this matter demonstrate that the amount of time spent by Defendant’s counsel is reasonable and that the requested usual hourly rates are more than reasonable for attorneys of their expertise in the San Diego community. Defendant therefore requests an award of attorneys’ fees in the amount of $240,070.00 and non-statutory costs in the amount of $5,763.67, plus any additional fees and costs incurred between now and the conclusion of the case. Dated: 5/30, 2007 Respectfully submitted, ROSENSTEIN, WILSON & DEAN, P.L.C. By:<<signature>>



Paula S. Rosenstein, Esq. Attorneys for Defendant Tracy L. Means

End of Document


CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State o...


Filings (17)

Title PDF Court Date Type

1. Defendant Tracy L. Means’ Answer to Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L.Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, i 2006 WL 6005415

Cal.Superior Jan. 13, 2006 Pleading

2. Complaint to Rescind Illegally Awarded Public Contracts; to Recover Money Had and Received; Violations of the Unfair Competition Act; and Violations of the False Claims Act CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2005 WL 6185806

Cal.Superior Dec. 13, 2005 Pleading

3. Plaintiffs’ Points and Authorities In Opposition to Means’ Revised Motion for Attorney Fees CITY OF SAN DIEGO, a municipal corporation, etc., et al., Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual, et al, Defendants. 2008 WL 3861180

Cal.Superior Jan. 25, 2008 Motion

4. Defendant’s Reply Brief In Support of Her Motion for An Award of Reasonable Attorneys’ Fees and Costs of Defense CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the PEOPLE OF THE STATE OF CALIFORNIA, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; MICHAEL HODGES, an indi 2007 WL 5425532

Cal.Superior Dec. 27, 2007 Motion

5. Plaintiffs’ Points and Authorities In Opposition to Means’ Motion for Attorney Fees CITY OF SAN DIEGO, a municipal corporation, etc., et al, Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual, et al., Defendants. 2007 WL 5425531


6. Plaintiffs’ Reply Brief in Suporrt of Motion To Strike Cost Bill - Tax Costs and for Sanctions Under Ccp || 128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; et al., Defendant.





2007 WL 5879530

7. Defendant Tracy L. Means’memorandum In Opposition to Plaintiffs’ Motion to Strike Cost Bill- Tax Costs and for Sanctions Under Ccp |128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS (aka Tracy L. Williams) an individual; MICHAEL HODGES, an individual; ROBERT THOMPSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; Does 2007 WL 5425530


8. Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for an Award of Reasonable Attorneys’ Fees and Costs CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5879528

Cal.Superior Oct. 26, 2007 Motion

9. Defendant’s Reply Memorandum of Points and Authorities in Support of Her Motion for An Award of Reasonable Attorneys’ Fees and Costs CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indiv 2007 WL 5879529


10. City’s Points and Authorities In Opposition to Means’ Motion for Attorney Fees and Request for Sanctions Under Ccp | 128.6 and Supporting Declaration of Joe Cordileone CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, Acting By and Through San Diego City Attorney, Michael J. Aguirre, Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, An Ind 2007 WL 5425529


11. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi

Cal.Superior Jul. 27, 2007 Motion




2007 WL 5425528

12. Plaintiff City of San Diego’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an in 2007 WL 5879526


13. Defendant Tracy L. Means’ Memorandum of Points and Authorities in Support of Motion and Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5879525

Cal.Superior Jun. 18, 2007 Motion

14. Plaintiff’s Memorandum of Points and Authorities In Support of Plaintiff’s Motion for Leave to File a Third Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, plaintiff, v. Tracy L. MEANS (aka Tracy L. Williams), an individual; MICHAEL HODGES, an individual; ROBERTA THOMSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; ABS AVIATION 2007 WL 5425527


15. Plaintiff City of San Diego’s Memorandum of Points and Authorities In Reply to Defendant’s Opposition to City’s Motion for Leave to File a First Amended Complaint; Declaration of Sheila a. Lowery Ferg CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS (aka Tracy L. Williams), an individual Michael Hodges, an individual Roberta Thompson, an individual Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inc 2006 WL 6005418


16. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual;





Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005417

17. Plaintiff’s Memorandum of Points and Authorities In Support of Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS (aka Tracy L. Williams), an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005416




Appellate History (9)

Direct History (1)

1. City of San Diego v. Means 2007 WL 5415013 , Cal.Super. , Feb. 16, 2007

Related References (8) 2. City of San Diego v. Means 2005 WL 6184156 , Cal.Super. , Dec. 14, 2005

3. City of San Diego v. Means 2006 WL 5999762 , Cal.Super. , Aug. 18, 2006


Judgment Affirmed in Part, Reversed in Part by

5. City of San Diego v. Means 2009 WL 33537 , Cal.App. 4 Dist. , Jan. 07, 2009 , unpublished/noncitable

6. City of San Diego v. Means 2007 WL 5415015 , Cal.Super. , Nov. 09, 2007

7. City of San Diego v. Means 2008 WL 3819199 , Cal.Super. , Jan. 04, 2008




Order Reversed by

9. City of San Diego v. Means 2009 WL 625520 , Cal.App. 4 Dist. , Mar. 12, 2009 , unpublished/noncitable



Related Opinions (2)

Title Court Date

1. City of San Diego v. Means 2007 WL 5415013

REPORTER CSR # 7688 JACQUELINE PLUMMER By, P. Jennings, Deputy P.O.BOX 120128, SAN DIEGO, CA 92112-0128 B-JENNINGS ATTORNEY FOR PLAINTIFF/PETITIONER SHEILA A. LOWER FERGUSON...

Cal.Superior Feb. 16, 2007


REPORTER CLERK CSR #2817 Attorney For PLAINTIFF/PETITIONER SHEILA A. LOWERY FERGUSON (1) □P □NP ATTORNEY FOR DEFENDANT/RESPONDENT PAULA S. ROSENSTEIN □P □NP R. L-COOPER THIS MATTER...

Cal.Superior Aug. 18, 2006


Plaintiffs’ Reply Brief in Suporrt of Motion To Strike Cost Bill - Tax Costs and for Sanctions Under Ccp || 128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; et al., Defendant. | Superior Court of California. Appended Content

Filings History Related Opinions/Dockets



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County

CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs,

v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; et al., Defendant.

No. GIC 858344. December 7, 2007.

Plaintiffs’ Reply Brief in Suporrt of Motion To Strike Cost Bill - Tax Costs and for Sanctions Under Ccp §§ 128.6 and 128.7

Michael J. Aguirre, City Attorney, Joe Cordileone, Senior Deputy City Attorney, California State Bar No. 73606, Office of the City Attorney, 1200 Third Avenue, Suite 1100, San Diego, California 92101-4100, Telephone: (619) 533-5800, Facsimile: (619) 533-5856, Email: [email protected], Attorneys for Plaintiff City of San Diego.

Judge: Joan M. Lewis.

Date: 12-14-07 Time: 8:30 a.m. Room: Department 65 Complaint Filed: April 14, 2006 Trail Date: Not applicable Plaintiffs submit the following in reply to defendant’s opposition to the Motion to Tax Costs:

The Costs Incurred in the Other Case

Defendant offers no legal authority to support her claim for costs incurred in Means v. City of San Diego. Her lawyer only says she believed she had to file the other suit. In fact, it is a belief based upon the most specious argument. “But for the filing of the instant suit, Means v City would never have been filed.” Rosenstein declaration page 2 lines 8-9. That is it. There is no other explanation for including those costs. Using that logic, “but for” this suit, Ms. Means never would have had to pay for photocopies in either lawsuit so why not add copy costs and force the plaintiffs to challenge them as well? Everything Ms. Means did as a result of being sued by the City is something that “but for” the lawsuit she would never have done. The “but for” test is no standard to impose costs and while Ms. Means may not know that, any av rated lawyer practicing more than 20 years1 certainly knows it. It is a frivolous act wholly without merit to insert that in a motion and to refuse to remove it when requested. 1

Declaration of Paula Rosenstein page 4 line 9.

Moreover, one does not need to be a lawyer to know someone who loses a lawsuit is not entitled to his costs. And finally, one must seriously question the idea that filing and losing a wholly different motion and a wholly different lawsuit is something



that “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Filing the other suit was unnecessary. Ms. Means has come this far and still has the same lawyer even though she did not get a single thing she thought she needed from that other lawsuit. This is proof that seeking costs from that case here in this case and then refusing to withdraw the request is sanctionable conduct.

The Challenge to the Entire Cost Memorandum:

The defendant focuses only on one part of a 2 part statute. She offers nothing to refute the plain language of the California Rules of Court, Rule 3.1700(a)(l) which says the attorney must make a statement that “to the best of ... her knowledge [each cost sought was] necessarily incurred.” She acknowledges the statute requires it and that she did it. But she ignores the other requirement of the statute which says her statement “must be verified.” She suggests that the Judicial Council is to blame. The Judicial Council produces hundreds of forms. The forms may be verified or unverified. For example, the Judicial Council provides form complaints and form answers. If an individual decides he wants to file a verified complaint, he then supplements the Judicial Council form with a verification. Moreover, the Judicial Council does not purport to practice law. It merely offers forms, some optional some mandatory. Defendant offers nothing to refute the fact that all she had to do was prepare a simple declaration using the statutorily required language to make her declaration the equivalent of a verification. Under CCP § 2015.5:

Whenever ... any matter is required ... to be... supported ... by... verification, ... or affidavit,... such matter may with like force and effect be supported ... by the declaration ... in writing of such person which recites that it is ... declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, I states the date and place of execution ... The certification or declaration may be in substantially the following form: (a) If executed within this state: ‘I certify (or declare) under penalty of perjury that the foregoing is true and correct’ - date and place - signature

Emphasis added. Defendant has simply failed to meet with her statutory requirements.

The “Messenger” Fees:

In her moving papers Ms. Means still refuses to indicate whether the messengers were or were not “registered process servers.” It would have been a simple matter to prepare and attach an accurate Judicial Council form or a 1 page table itemizing the information she was required by law to provide. But despite the fact the point was raised in the motion and despite the fact law was cited to her indicating she could never collect anything more than what the sheriff charges for service of process until she did does, Ms. Means will not tell us whether her process servers (as opposed to messengers) are registered or not. Yet she wants the Court to award her sums three times greater than what the sheriff charges. In her brief, Ms. Means highlighted her claimed right to rely upon the Judicial Council form; now she ignores the Judicial Council form on the key question of whether her process server was “registered.” Since she failed to provide the information required by law, then under CCP § 1033.5(4)(D) she cannot recover more than $30.00 for any individual service of papers as that is the statutory amount which the Sheriff charges for service of process. Gov. Code §§ 720 et seq. All process service fees should be stricken because Ms. Means has not shown that she could not have served everyone by mail. At the very least, all process service fees which could not have been done by mail, must be reduced to no more than $30.00 each.

The Issue of Sanctions:

Note that plaintiffs do not seek sanctions for all expenses incurred in bringing this motion. Reasonable people disagree all the time and often the Court’s assistance is required in resolving legitimate legal disputes. Instead, plaintiffs seek sanctions only for time spent on defendant’s course of conduct related to things defendant never should have done in the first place and



never should have allowed to become a matter for the Court once she was confronted with her misconduct. a. When asked whether she had any legal authority to demand expenses incurred in filing motions and lawsuits she lost in a different lawsuit, instead of telling the truth and admitting she had done no research and had no legal authority, defendant replied, “I do not intend to do your research for you.” b. When her opponent did do the research and pointed out that she had no legal right to ask for that extra money. She refused to withdraw her request. In fact, she would not even discuss it and instead told her opponent to file a motion.2

2

10-19-07 email from Ms. Rosenstein: “I do not want to have a discussion with you about these topics via email. They are issueswhich you may raise with the court if you so choose.” Exhibit C to this reply brief.

c. When her opponent moved to tax costs, citing numerous legal challenges to the whole and to specific components of costs unrelated to the illegal costs she used her illegal and improper request as a bargaining chip. She knew there was no legal basis for asking for $610. But she refused to drop the request unless the City agreed to abandon all other legal challenges to other money she requested without documentation. In other words, she would not give up a 100% false claim unless the City a) bought a pig in a poke and accepted her representations as to other costs and b) agreed to abandon legitimate legal challenges to her improperly filed motion. d. Now, in her opposition papers, Ms. Means provides incomplete and misleading information to this Court about how the parties have come to this point. For example, she ignored two inquiries and then finally refused to answer any questions about costs in the other lawsuit and dared the plaintiffs to file a motion. Only when she was reminded of her obligations to the Court to avoid motions whenever possible, did she make any kind of proposal.3

3

Mr. Cordileone replied to the email referred to in footnote 2 on 10-19-07 saying: “I am not interested in playing hide the ball and I expect you to give straight answers to reasonable questions. We both have a duty to the Court not to involve it in matters we can resolve between ourselves. What you seek is bizarre. I have never seen anything like it in 30 years of practice. I think I have a right to know if you have any authority for what you are trying to do with your cost memo. Either you have the authority or you don’t. If the law is on your side, I will not waste court time with the issue; if you have nothing to justify what you are doing, then you have a duty to do the right thing and withdraw all improper requests for costs you know your client cannot recover under the law.”Exhibit D to this reply brief. It was only after this message that Ms. Means offered to settle the issue. Again, still refusing to offer any legal basis for her absurd position, she demanded that the City give her more than half of what everyone knew she had no right to and 100% of costs that she may or may not have had a right to. 10-22-07 email from Ms. Rosenstein: “... I do not intend to do your research for you. However, the amount we are arguing over is$520. [This amount is misstated to Ms. Means’ benefit - it was actually $610.] I would stipulate to reduce our costs by half of that,$260 in order to avoid the time and effort involved in a motion to tax. If you are amenable, please prepare a stipulation and order for statutory costs in the amount of $8658.07. Exhibit E to this reply brief.

The fact is, at no time until she actually filed her opposition to this motion, did Tracy Means ever admit that she had no law to support her position. And at no time, up to this very moment, has Tracy Means ever agree to drop her illegal position unless the plaintiffs dropped other, unrelated legal rights. In fact, had the defendant properly filled out the cost memorandum worksheet, (something she still has not done), a huge portion of this hearing could have gone off the table. Moreover, once one supplements Ms. Means’ inaccurate and incomplete description of what took place with undeniably accurate copies of emails which were exchanged, we find that Ms. Means could have avoided the issue of sanctions entirely as late as one week ago! Note the text of a message she received the day after the email which she attaches as an exhibit to her opposition brief.

You still offer no legal authority for the outrageous proposition that someone who lost a MSJ and a lawsuit could recover filing fees incurred bringing the lawsuit and seeking the MSJ by calling them costs incurred in a different lawsuit. The notion is absurd. Your client never should have included those fees and she should have withdrawn them when she was confronted with her inappropriate behavior. You may vet avoid sanctions if you unilaterally withdraw the request for costs incurred in the Means v City case. I will not take your word for it that she is entitled to those fees. Unless you have some law to support your



client’s position, the City will not consider, in any way, your claim that your client is entitled to any expenses she incurred in Means v City.

Emphasis added; Exhibit F, Email from Joe Cordileone to Paula Rosenstein 11-28-07. Tracy Means had the power to make this a simple motion to tax costs before she filed any papers. All she had to do was drop the claim for Means v City costs!

SUPPLEMENTAL DECLARATION OF JOE CORDILEONE

I, Joe Cordileone, am competent to testify, know the matters set forth herein of my own personal knowledge and if called as a witness would testify to the following I. I submit this declaration to respond to several inaccurate and incomplete statements contained in Ms. Means’ opposition papers including its supporting declaration. 2. The opposition papers incorrectly state without any supporting declaration that “Defendant offered to reduce the cost bill by half of that expense [the Means v City costs] prior to the filing of the motion and fully after receiving Plaintiffs’ motion.” Defense P’s and A’s page 7 lines 7-8. The statement is inaccurate. 3. Right after I got the cost memo I sent opposing counsel an email asking: Do you have any case or statutory authority at all that you believe allows your client to recover costs she incurred in losing a lawsuit by adding them to the costs she incurred in winning a totally different lawsuit with a different case name and a different case number? If you have no such authority, and if you will not agree to immediately submit a revised cost bill deleting every cost incurred in Means v. City, then, at the very least, please be so kind as to itemize for me all of the costs you have incurred in Means v City of San Diego but which you are now seeking to recover as statutory costs in City of San Diego v Means. Exhibit A, email dated 10-16-07 from Joe Cordileone to Paula Rosenstein. Opposing counsel ignored me. Therefore on 10-18-07 I sent it to her again with a cover saying: I haven’t heard back from you on this email I sent two days ago. Depending upon your answers, I have 1 to 4 questions that really need a prompt reply so that I can frame my motion to tax. 1. Do you have case or statutory authority to support your client’s transfer of costs incurred in case no. 864419 (which case she lost) over into case no. 858344 as items of allowable costs? 2. If so, will you share that authority with me? 3. If you don’t have the authority, will you agree to immediately submit a revised cost bill deleting every cost item that is part of Means v City rather than City v Means? 4. Whether you have authority for it or not, if you have no intention of revising the cost bill, will you please itemize all the costs in your cost memo which were actually incurred in Means v City? Exhibit B, email dated 10-18-07 from Joe Cordileone to Paula Rosenstein. Her reply came the following day and she told me if I didn’t like things, I could just file a motion.

I do not want to have a discussion with you about these topics via email. They are issues which you may raise with the court if you so choose. I would, however, invite you to more closely review the attachment to the memo of costs as it clearly identifies the Means v. City costs.



Exhibit C, email dated 10-19-07 from Paula Rosenstein to Joe Cordileone. Later that same day, despite being given the brush off and being dared to file a motion, I tried to reach her again. Since she seemed reluctant to use emails I tried calling. I had no luck, so I wrote her again. Note the highlighted section. I reminded her of our obligations to the Court saying: At 10:14 this morning I called and you were not in. I left a phone message with your staff that I wanted to talk with you about the cost memo and the Means v City Judgment. What is wrong with communication by email? The advantage it has over phone messages is the fact that no one can challenge the exact wording of the exchange. Advantages it has over facsimiles are 1) it is immediate; 2) secretarial staff need not be involved; 3) there is no waste of paper; and 4) you do not even have to leave your desk. Advantages it has over mail are the same as over facsimiles plus you don’t have to incur any expense on postage. I am interested in learning why you do not like to use email. As for the substantive reason for my messages (whether telephonic or via email) please consider this: I am not interested in playing hide the ball and I expect you to give straight answers to reasonable questions. We both have a duty to the Court not to involve it in matters we can resolve between ourselves. What you seek is bizarre. I have never seen anything like it in 30 years of practice. I think I have a right to know if you have any authority for what you are trying to do with your cost memo. Either you have the authority or you don’t. If the law is on your side, I will not waste court time with the issue; if you have nothing to justify what you are doing, then you have a duty to do the right thing and withdraw all improper requests for costs you know your client cannot recover under the law. The method by which you have responded leads me to be cautious. I still do not have a direct representation from you, as an officer of the Court, that ALL of the items of costs which are related to Means v City have been so identified in your cost memo. Until I have such a representation, I will not make any assumption that such is the case. Please tell me, are all of the costs listed in your client’s cost memo in City v Means but which were actually incurred in the lawsuit captioned Means v City clearly marked as costs incurred in Means v City? If not, will you please identify those which are not so marked as “Means v City” costs? Exhibit D, email dated 10-19-07 from Joe Cordileone to Paula Rosenstein; emphasis added. 5. She responded 3 days later saying several things but she would not give legal authority for what I had already told her I considered to be an outrageous and illegal demand.

Regarding your current question, I do not intend to do your research for you. However, the amount we are arguing over is $520. I would stipulate to reduce our costs by half of that, $260 in order to avoid the time and effort involved in a motion to tax. If you are amenable, please prepare a stipulation and order for statutory costs in the amount of $8658.07.

Excerpt from Exhibit E, email dated 10-19-07 from Paula Rosenstein to Joe Cordileone. 6. Once the motion was filed, on November 27, 2007, Ms. Rosenstein called me to make an offer. It was extremely difficult to talk to her because she repeatedly interrupted me. Several times she would ask me a question and as I was in the process of responding, she would simply talk over me. Several times I asked her to let me finish my remarks. She would not do so. When I reminded her that I was allowing her to finish her sentences and I asked whether we could agree to extend each other the same courtesies she refused. At that point I said that we could not continue over the phone. Contrary to the remarks in her email which is an exhibit to her declaration, I did not hang up on her. I told her the conversation was over because I would not converse with someone who refused to let me finish a sentence. I then followed up with an email explaining the City was not rejecting her offer, but it needed the information that she would have been required to provide had she filed a proper memo of costs. If satisfactory the City I would consider her offer. I also noted that she had not given any considered to the fact that her client was still risking everything because of the failure to properly verify the cost memo. Exhibit E is the email



dated 10-19-07 from Joe Cordileone to Paula Rosenstein. Her reply is Exhibit A to the defense opposition. 7. However, Ms. Rosenstein’s reply was not the last message that passed between us on the topic. I again gave counsel the option of completely eliminating the issue of sanctions. I specifically told her:

You may yet avoid sanctions if you unilaterally withdraw the request for costs incurred in the Means v City case. I will not take your word for it that she is entitled to those fees. Unless you have some law to support your client’s position, the City will not consider, in any way, your claim that your client is entitled to any expenses she incurred in Means v City.

Excerpt from Exhibit F, email dated 10-28-07 from Paula Rosenstein to Joe Cordileone. I declare under penalty of perjury under the laws of California that this declaration is true and accurate and that this declaration was executed on December 7, 2007. <<signature>> Joe Cordileone

CONCLUSION

The defendant chose to submit costs which were clearly not appropriate and stubbornly refused to abandon them despite numerous opportunities both before and after the filing of the motion to do so. Dated: December 7, 2007 MICHAEL J. AGUIRRE, City Attorney By <<signature>> Joe B. Cordileone Senior Deputy City Attorney Attorneys for Plaintiff City of San Diego

End of Document




Filings (17)












6. Defendant Tracy L. Means’memorandum In Opposition to Plaintiffs’ Motion to Strike Cost Bill- Tax Costs and for Sanctions Under Ccp |128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS (aka Tracy L. Williams) an individual; MICHAEL HODGES, an individual; ROBERT





THOMPSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; Does 2007 WL 5425530








Cal.Superior Sep. 21, 2007 Motion

11. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v.





Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5425528









16. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a





Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005417






Direct History (1)












Order Reversed by





Title Court Date








Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for an Award of Reasonable Attorneys’ Fees and Costs CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County





No. GIC 858344. October 26, 2007.

Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for an Award of Reasonable Attorneys’ Fees and Costs

Paula S. Rosenstein, Esq. (SBN 126264), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, California 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.


Dept.: 65 Time: 8:30 a.m. Complaint Filed: December 13, 2005 Trial Date: Not Applicable TEntative Ruling Available 10/25/07 at 4:00 p.m. at (619) 531-3690 or www.sdcourt.ca.gov

TABLE OF CONTENTS

I. Introduction ......................................................................................................................................................................................

1

II. Factual and Procedural Background .......................................................................................................................................

2

III. Defendant is Entitled to Recover Her Attorneys’ Fees ..................................................................................................

3

III(a). The MSJ Ruling in Means v. City is No Bar to Recovery .......................................................................................

4

III(b). No Exceptions Provide Escape for the City From Its Obligations .......................................................................

4

III(c). Section 995.4 is Inapplicable in This Case ...................................................................................................................

6

III(d). Summary ..................................................................................................................................................................................

6

IV. Reasonable Attorneys’ Fees Should Be Awarded ...........................................................................................................

6

IV(a). Determining Reasonable Fees to be Awarded ............................................................................................................. 8



IV(a)(l). Defendant’s Lodestar .......................................................................................................................................................

9

IV(a)(2. Defendant’s Lodestar is Reasonable ...........................................................................................................................

9

IV(a)(3). The Hourly Rates Claimed by Plaintiffs’ Attorneys are Reasonable .............................................................

10

VI. Defendant is Entitled to Recover Her Non-Statutory Costs .........................................................................................

11

V. Conclusion ......................................................................................................................................................................................

11

TABLE OF AUTHORITIES

Chin, Cathcart, Exelrod & Wiseman Cal. Pract. Guide (Employment Litigation, The Rutter Group, 2001, 17:686) .....

8

Government Code § 995 ........................................................................

2, 3, 4, 5, 7, 8, 12

Government Code § 995.4 ....................................................................

5, 6

TABLE OF CASES

Flannery v. Calif. Highway Patrol (1998) 61 C.A.4th 629 ........

8, 12

Gates v. Gomez (1995, 9th Cir.) 60 F3d 525 .....................................

11

Hensley v. Eckerhart (1983) 461 US 424 .........................................

16

Horace Mann Insurance Co. v. Harbor (1983) 4 Cal. 4th 1071 ..............................................................................................................

6

Ketchum v. Moses (2001) 24 Cal 4th 1122 .......................................

8

Meister v. Regents of the University of California (1998) 67 Cal App 4th 437 .........................................................................................

8

Perkins v. Mobile Housing Board (1988, 11th Cir.) 847 F2d 735 ..................................................................................................................

11

PLCM Group, Inc. v. Drexler (2002) 22 Cal 4th 1084 ................

8, 12

Serrano v. Priest (1977) 20 Cal 3d 25................................................

7, 8, 11

Torres v. City of San Diego, San Diego Superior Court GIC 852293 .........................................................................................................

10

Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal App 3d 836 ..................................................................................

11

I. INTRODUCTION Counsel for Defendant Tracy L. Means have devoted more than 600 hours over the past 20 months urging and demanding



that the case against her be dismissed as it lacked merit and was frivolous, and when those efforts failed, litigating and finally obtaining a summary judgment demonstrating that the allegations made against Ms. Means lacked merit and supporting evidence. This Memorandum will summarize the history of this litigation, address Defendant’s entitlement to an award of reasonable attorneys’ fees under Govt. § 995 and show the amount of fees and costs requested and that they are reasonable.

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are well known to this court and will not be repeated here in great detail. In brief, Tracy L. Means was employed by the City of San Diego as a Deputy Director and was in charge of the City’s Airports Division. While she held this position, the City employed the use of a consulting firm, Airport Business Solutions (“ABS”), to provide consulting services related to Brown Field and Montgomery Field, San Diego’s two municipal airports. While ABS’ two principals, Michael Hodges and Roberta Thompson, worked with Ms. Means some of the time, they also worked much of the time for other city employees including the Director of the Real Estate Assets Department, William T. Griffith, members of the City Manager’s office and the City Attorney’s office. The court, after reviewing substantial pleadings and evidence, granted summary judgment against Plaintiffs City of San Diego and the People of the State of California on all seven (7) causes of action alleged against Defendant Tracy L. Means. The court found, among other things, that Ms. Means was, at all times alleged in the complaint, acting within the course and scope of her employment and without actual fraud, corruption or actual malice. Defendant tried, at every opportunity, to have Plaintiffs’ dismiss this case and negotiate a resolution to this matter in good faith. Plaintiffs, and specifically, City Attorney Michael J. Aguirre, refused to act in good faith. Despite the fact that as the discovery process proceeded and Plaintiffs discovered no evidence to support their allegations, Mr. Aguirre added allegations rather than subtracted them. Despite the fact that there has never been any evidence of ill-motive, intent to benefit herself or harm the City, let alone evidence of actual fraud, corruption or actual malice, Mr. Aguirre insisted on pressing this case to the ultimate extreme. Further, there are few attorneys well-versed and experienced in the combination of employment and municipal law involved in this unique case. As the court is well aware, there is little, if any law, dealing with the situation of a government entity suing its own employee or former employee. There is no California law exactly on point on any of the issues in this matter. As a result, this lawsuit required extensive legal research in the substantive areas involved to try to tease out what legal precedence or even guidance might exist. It also required exhaustive, detailed review of more than 10,000 pages of documents produced during the discovery process, including many of the policies and procedures established by the City of San Diego. In sum, this case involved new areas of law and substantial amounts of time to be properly prepared for the summary judgment motion and, because one never can predict the outcome of such a motion, for a trial which would have been long and contained difficult legal issues. This case had degrees of difficulty on a variety of fronts which required the expenditure of more time than might typically be found in an average case, including the fact that Plaintiffs’ amended their complaint four times, each time dramatically re-writing the case to include and explore new theories of liability. Plaintiffs undoubtedly engaged in this exercise because the evidence being discovered did not support the legal theories on file. This case, because of the number of witnesses involved, including the parties, but most particularly because of the intricacies of the law associated with the claims in this case, required significantly extra effort on behalf of defense counsel and, more than likely, plaintiffs’ counsel. At the end of the day, Plaintiffs still had no support for their allegations no matter how many twists and turns they attempted.

III. DEFENDANT IS ENTITLED TO RECOVER HER ATTORNEYS’ FEES.



In this case, Defendant is entitled to recover her attorneys’ fees under Government Code Section 995. The City sued Ms. Means for actions allegedly taken over a five year period, all of which were taken by Ms. Means in the course of performing her job duties as Airports Director for the City of San Diego. Pursuant to Govt. Code § 995, the City is responsible for providing a defense for Ms. Means in this lawsuit. Government Code §995 requires that a government entity provide the defense for an employee or former employee when she is sued. Govt. Code §995 provides, in pertinent part: “ ... [U]pon request of an employee or former employee, a public entity shall provide for the defense of any civil action...against him in his official or individual capacity or both on account of an act or omission in the scope of his employment as an employee of the public entity.” (Emphasis added.) In the Fourth Amended Complaint, the City alleged that Ms. Means failed to follow the rules, regulations and procedures of the City. As the court found in granting Ms. Means’ Motion for Summary Judgment, her alleged actions were taken with the knowledge, consent, approval and, in some cases, involvement of her superiors, staff of other City departments and City Council members. Throughout this time, Ms. Means received no comments, criticism or training regarding the actions she took which supposedly violated the law. The City, in fact, condoned, ratified her and approved of her actions at the time. Ms. Means was, as the court ruled, acting within the course and scope of her employment during all times at issue in this case. There is no doubt that if the same or similar allegations had been made against Ms. Means by a third party, the City would have provided her with a defense. That obligation is no less present simply because the City Attorney instituted the underlying litigation without City Council approval and authority and without a client department.

A. The MSJ Ruling in Means v. City is No Bar to Recovery

In an attempt to have the City provide a defense for this ill-conceived lawsuit, Tracy Means filed a Petition for Writ of Mandamus. (Means v. City of San Diego, GIC 864419). In that case, both parties filed motions for summary judgment and the Court granted summary judgment for the City. The decision there, however, carries no weight here as the issues are different. The Petition alleged that the City Council had failed in its duties under the code to make the requisite findings under Govt. Code §§ 995.2 or 995.4 before voting to deny Ms. Means in the instant case. This motion, however, asks the court to award attorneys’ fees based on the court’s findings made in its ruling on the Motion for Summary Judgment filed in this case. As is discussed more fully herein, Ms. Means is entitled to recover her costs of defense and attorneys’ fees as the prevailing party and also because she has shown and the City has failed to show that she engaged in any wrongdoing which could possibly lead to liability against her. That being the case, Govt. Code section 995 governs and no exceptions apply.

B. No Exceptions Provide Escape For The City From Its Obligations

Government Code §995.2 provides three narrow exceptions to the rule requiring the provision of a defense. Specifically, Government Code Section 995.2 provides, in part: “(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following: (1) The act or omission was not within the scope of his or her employment. (2) He or she acted or failed to act because of actual fraud, corruption or actual malice.



(3) The defense of the action or proceeding by the public entity would create a specific conflict of interest between the public entity and the employee or former employee. For the purposes of this section, “specific conflict of interest” means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity.” None of them applies to this situation. The court, in granting Ms. Means’ Motion for Summary Judgment, found as a matter of law that Ms. Means was acting within the course and scope of her employment and without actual fraud, corruption or actual malice - exceptions (1) and (2). Since she was always acting within the course and scope of her employment and without actual fraud, corruption or actual malice, there can be no conflict of interest - exception (3). Furthermore, since this was a frivolous and meritless case, the City should not be permitted to hide behind its excuse that there was a conflict of interest between the City and Ms. Means. The City Attorney acted without the City Council’s knowledge, approval or authorization in filing this lawsuit. (Rosenstein Decl. para. 12, Exh. A). In so doing, he is acting as a third party even though he is doing so in the name of the City. Had any third party sued Ms. Means, there is no doubt that the City would have been required to provide her with a defense. Moreover, if this was a case involving a private employer suing a former employee, that company’s insurance carrier would have been required to retain cumis counsel to represent the employee under the broad duties to defend which exist under the law. Horace Mann Insurance Co. v. Harbor (1983) 4 Cal. 4th 1071, 1076. This is especially true where, as here, there were negligence claims against the defendant. The protections for government employees are even broader than those for private employees as evidenced by the numerous statutes providing immunity to government employees. The least the City should be required to do is to reimburse her for her fees and costs now that the case has been shown to be the farce it always was. Ms. Means was always acting with the direction and/or approval of her supervisors and others above him. ABS’ services were used with the knowledge and consent of her supervisors and the purchasing department. Since the court found that she was always acting within the course and scope of her employment, there can be no conflict of interest between Ms. Means and the City.

C. Section 995.4 Is Inapplicable In This Case

Plaintiffs may try to argue that Government Code Section 995.4 prohibits them from being ordered to pay for Ms. Means attorneys fees and costs incurred in defending this suit. Govt. C. §995.4 deals with actions brought by public entities and states, in pertinent part, that a public entity may provide for the defense of: “a) an action or proceeding brought by the public entity to remove, suspend or otherwise penalize its own employee or former employee ... b) an action or proceeding brought by the public entity against its own employee or former employee as an individual and not in his official capacity ...” While Plaintiffs may have alleged facts and theories which might fall under sections (a) or (b), the court has found, as a matter or law, that Ms. Means is not liable in any way to them. Moreover, since it has been determined that she was acting in the course and scope of her employment and without actual fraud, corruption or actual malice, she was sued in her official capacity and not as an individual. The facts determine in what capacity a defendant is sued, not the framing of the suit by the plaintiff in the action. Moreover, Ms. Means acted with the direction and/or approval of her supervisors and ABS’ services were used with the knowledge and consent of higher level City officials. She always acted in what she and her superiors believed to be the City’s best interests. Again, since she was acting within the course and scope of her employment, this section does not protect Plaintiffs.



D. Summary

Government Code Section 995 is a mandatory statute. In a civil suit, the public entity must provide a defense for an employee who is sued. None of the exceptions provide a safe harbor for Plaintiffs. Therefore, reasonable attorneys fees must be awarded to Defendant Tracy L. Means so that she does not suffer further damage as a result of this frivolous suit.

IV. REASONABLE ATTORNEYS’ FEES SHOULD BE AWARDED.

Under Govt. C. §995, reasonable attorneys’ fees should be calculated by the “lodestar” method. Further, Plaintiffs should be awarded attorneys’ fees at a rate which includes a multiplier to account for the degree of difficulty and risk, along with the public benefit, of defending this case. To establish the lodestar, or base rate, the court first considers the reasonable amount of time spent on the case and then sets a reasonable hourly amount as compensation for the attorneys performing the work. Serrano v. Priest (1977) 20 Cal 3d 25, 48. Commentators have concluded, “It is irrelevant to the lodestar calculations whether the parties’ fee agreement contemplates a fixed hourly rate or contingency fee”. Chin. Cathcart, Exelrod & Wiseman Cal. Pract. Guide (Employment Litigation, The Rutter Group, 2001, 17:686). The lodestar method applies to a statutory attorneys’ fees award unless the underlying statute provides for another method of calculation. Meister v. Regents of the University of California (1998) 67 Cal App 4th 437, 448-449. In this case, Govt. C. § 995 does not provide for an alternative method of calculation. In determining the amount of reasonable attorneys’ fees, the court must determine both the reasonable amount of time to have been spent on the case and a reasonable hourly rate for the attorneys on the case. In determining a reasonable hourly rate, the prevailing rate charged by attorneys of similar skill and experience in the relevant community should be considered. PLCM Group, Inc. v. Drexler (2002) 22 Cal 4th 1084, 1095. Other factors to be considered include the attorneys’ skill and experience, the nature of the work performed, the relevant area of expertise and the attorneys’ customary billing rates. Flannery v. Calif. Highway Patrol (1998) 61 C.A.4th 629, 632. Once the reasonable rate is determined, the court has the discretion to adjust the basic lodestar rate. In making a determination as to whether a multiplier should be used, the court should examine the novelty and difficulty of the questions involved; the skill displayed in presenting them; the extent to which the nature of the litigation precluded other employment by the attorneys; and the contingent nature of the fee award. Serrano v. Priest, supra, at 49. The purpose of a fee enhancement is “primarily to compensate the attorney for the prevailing party at a rate reflecting the risk of non-payment in contingency cases as a class”. Ketchum v. Moses (2001) 24 Cal 4th 1122, 1138. The aim is to compensate attorneys for their services at fair market value as an inducement to accept such matters. Fair market value should include a premium for the risk of non-payment or delay in payment of attorneys’ fees. Id. at 1138.

A. Determining Reasonable Fees to be Awarded

As indicated above, the court must determine a reasonable hourly rate for the attorneys involved in the litigation. In this case, Attorney Paula S Rosenstein, with some assistance from her law partners, represented the Defendant in this matter. Ms. Rosenstein is an attorney with twenty years of experience who practices primarily in the area of employment law. Within that specialty, she spends approximately sixty percent of her time representing individuals in a variety of employment matters, including, but not limited to termination, disciplinary and contract matters. She has represented individual public employees with respect to employment issues on numerous occasions. The other forty percent of her time is spent advising employers on employment matters. In addition to employment law, Ms. Rosenstein represents and litigates on behalf of domestic partners, negotiates and litigates other contract and business matters. Her usually hourly rate varies depending on a



variety of factors including the complexity of the case and the challenges posed by the case. In this case, $400.00 per hour is appropriate given the complexity and voluminous nature of this case, as well as the degree of skill required and used to defend Ms. Means. Her partner, Bridget J. Wilson has been an attorney for thirteen years with a civil litigation practice that has included military, employment, civil rights and personal injury law. Ms. Wilson’s usual hourly rate varies depending on various factors. Because of the factors present in this case, $300 per hour is an appropriate and reasonable hourly rate. Although employment law is related to the municipal law and factual allegations litigated here, Defendant could not locate counsel with experience litigating these specific matters as it is incredibly rare for a public entity to sue its own employee. This fact must be considered in the analysis as it demonstrates the novelty and difficulty of the questions involved. The challenges faced in following Plaintiffs’ case as it morphed repeatedly throughout the last 20 months and in preparing the motion for summary judgment in this matter also demonstrates the novelty and difficulty of the questions involved in this case. The second factor to be considered is the skill Defendant’s counsel displayed in presenting the questions involved in this matter. Based upon the ultimate ruling, it is apparent that Defendant’s counsel skillfully presented the complex questions, facts and law to the court such that it was able to grant Defendant’s Motion for Summary Judgment. The third factor to be considered in whether to adjust the lodestar is the extent to which the nature of the litigation precluded other employment by the attorneys. As will be evidenced during the portion of this brief discussing the amount of time counsel put into this case, it is clear that there was a severe limitation on the amount of other work which defense counsel could take on during the pendency of this matter, and particularly in the January 2006 through August 2007 time frame. During that time frame, more than ten depositions were taken by Plaintiffs and Defendants, multiple motions were presented to the court, including the extensive and detailed Motion for Summary Judgment, and the defense was being prepared for what was sure to be a lengthy trial. Obviously, this time commitment had a severe impact on defense counsel’s practice. The fourth factor to be considered in determining whether to adjust the lodestar is the contingent nature of the fee award. In this case, given that there is unsettled law in the area, and, to some degree, no guiding law in the area, there was significant risk in taking and pursuing this litigation. In support of the Petition for this fee award, Defendant is submitting the Declarations of Paula S. Rosenstein and James F. Pokorny, along with the declarations filed by the attorneys in the case of Torres v. City of San Diego, GIC 852293. The court, in hearing the attorneys fees motion in that case, granted fees at the hourly rates requested by the attorneys in their declarations. That case has many similarities to the one at issue here. These declarations confirm the level of novelty and skill required by this case as well as the fair market value and community standard for hourly rates for attorneys with the skill level demonstrated here.

1. Defendant’s Lodestar:

In this case, including the time spent on this attorneys’ fee Petition, which, under Serrano, is also compensable, Attorney Paula S. Rosenstein has spent, as of the filing of this motion, 612.40 hours on this matter since 2005. Attorney Bridget J. Wilson spent 20.30 hours on this case during the same time frame for a total number of hours of 632.70 (See Notice of Lodgment, Exhibit 1.) At their respective hourly rates of $400.00 and $300.00 per hour, the base, or lodestar, for an attorneys’ fee award is $251,050.00. There will, of course, be additional time spent between the filing of this motion and the conclusion of the case. The amount of additional time will be addressed in Defendant’s Reply papers for this motion.

2. Defendant’s Lodestar is Reasonable:

Under California law, parties like the Plaintiffs who “achieve excellent results are entitled to a fully compensatory fee. Normally, this would encompass all hours reasonably expended on the litigation and, indeed, in some cases of exceptional



success, an enhanced award may be justified”. Hensley v. Eckerhart (1983) 461 US 424, 435, cited with approval in Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal App 3d 836, 849-850. Under this standard, Plaintiffs are entitled to be compensated for pre-litigation services, as well as time spent on the litigation. Counsels’ “sworn testimony that, in fact, it took the time claimed as evidence of considerable weight on the issue of the time required in the usual case”. Perkins v. Mobile Housing Board (1988, 11th Cir.) 847 F2d 735, 738. Once the moving party has presented a fully documented claim, the burden shifts to the opposing party to present substantial evidence that challenges the accuracy and reasonableness of the hours claimed by the moving party. See Gates v. Gomez (1995, 9th Cir.) 60 F3d 525, 534. In this case, Defendant’s fee claim is based entirely on detailed, contemporaneous time records that describe every activity for which compensation is claimed. See Notice of Lodgment, Exhibit 1. Further, the record shows that this case was thoroughly and efficiently litigated over vigorous opposition by Plaintiffs. Defense counsel did her best to do the required work in a productive and efficient manner to maximize her respective skills. Paula Rosenstein decided the overall direction, strategy and expenditure of labor during the litigation. This was a complex and in-depth case with claims that kept changing and in an area of law which has little guidance for the attorneys to follow. As such, the time expended is reasonable.

3. The Hourly Rates Claimed by Plaintiffs’ Attorneys Are Reasonable:

Defendant’s attorneys are entitled to be compensated at hourly rates that reflect the reasonable market value of their services in the community. Reasonable rates are those charged by private attorneys of comparable skill, reputation and experience for similar litigation. See, PLCM Group, Inc. and Flannery. supra. Both attorneys are well experienced practitioners. Their rates of $400.00 and $300.00 per hour are consistent, or below, the rates charged by San Diego attorneys of equivalent experience, expertise and skill. The fact that these rates are more than reasonable are supported by the Declarations filed herewith.

VI. DEFENDANT IS ENTITLED TO RECOVER HER NON-STATUTORY COSTS

Pursuant to Government Code §995, Ms. Means is entitled to have all of the costs of defense covered if she is sued for actions taken in the course and scope of her employment. Since the court has ruled that this is the case, she is entitled to recover not only statutory costs covered by the memorandum of costs but also non-statutory costs. In this case, non-statutory costs included items such as duplication charges, postage, telephone and facsimile charges, expert fees, Lexis research fees and various third-party charges such as duplication and messenger fees. The non-statutory costs total $5,893.19 and are detailed in Exhibit “3” to Defendant’s Notice of Lodgment. For the court’s additional edification, exhibits to the Notice of Lodgment delineate Defendant’s total costs of $14,811.26 (Exhibit “2”) and statutory costs of $8,918.07 (Exhibit “4”).

V. CONCLUSION

Based upon the foregoing law, facts and argument, it is clear that Defendant is entitled to an award of attorneys’ fees, and to recover her statutory and non-statutory costs from Plaintiffs. The Declarations, facts and background of this matter demonstrate that the amount of time spent by Defendant’s counsel is reasonable and that the requested usual hourly rates are more than reasonable for attorneys of their expertise in the San Diego community. Defendant therefore requests an award of attorneys’ fees in the amount of $251,050.00 and non-statutory costs in the amount of $5,893.19, plus any additional fees and costs incurred between now and the conclusion of the case. Dated: Oct 3, 2007 Respectfully submitted, ROSENSTEIN, WILSON & DEAN, P.L.C.



By: <<signature>> Paula S. Rosenstein, Esq. Attorneys for Defendant Tracy L. Means

End of Document




Filings (17)

















2007 WL 5879530














2007 WL 5425528




















Direct History (1)












Order Reversed by





Title Court Date








Complaint for Declaratory and Injunctive Relief and for Compensatory and Punitive Damages Ryan SPINK by and through her guardian ad litem, Roslyn Rawlins, Plaintiff, v. SAN DIEGO UNIFIED SCHOOL DISTRICT, by and through its Board of Education; Bill Kowba, Superintendent; Bobbi Samilson, Principal; Hans Becker, Vice Principal; and Does 1-25, inclusive, Defendants. | Superior Court of California. Appended Content

Related Opinions/Dockets



Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:


Ryan SPINK by and through her guardian ad litem,..., 2011 WL 6463081...


2011 WL 6463081 (Cal.Superior) (Trial Pleading) Superior Court of California.

San Diego County

Ryan SPINK by and through her guardian ad litem, Roslyn Rawlins, Plaintiff, v.

SAN DIEGO UNIFIED SCHOOL DISTRICT, by and through its Board of Education; Bill Kowba, Superintendent; Bobbi Samilson, Principal; Hans Becker, Vice Principal; and Does 1-25, inclusive, Defendants.

No. 37-2011-00092799-CU-CR-CTL. June 11, 2011.

Complaint for Declaratory and Injunctive Relief and for Compensatory and Punitive Damages

Paula S. Rosenstein, Esq. (SBN 126264), Bridget J. Wilson, Esq. (SBN 167632), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, California 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Plaintiff, Ryan Spink by and through her guardian ad litem, Roslyn Rawlins.

I. INTRODUCTION 1. This is a civil rights action demanding declaratory and injunctive relief and monetary damages from the San Diego Unified School District (“SDUSD”) and its agents and employees for depriving students at Pt. Loma High School who are disabled or who are perceived to be disabled of a safe and equal educational environment in violation of their established constitutional and statutory rights. By bringing this action, Plaintiff Ryan Spink (“Ryan”) seeks to eliminate the hostile and intolerant climate within the SDUSD at Pt. Loma High through reforms to change the policies and practices within SDUSD schools and to compel SDUSD officials to respond appropriately to complaints of harassment by students who are disabled or who are perceived to be disabled. Plaintiff Ryan Spink also seeks monetary damages for the harassment and discrimination she has suffered. 2. Students experience pervasive, severe, and unwelcome harassment and discrimination at SDUSD schools, including but not limited to Pt. Loma High School (“PLHS”), based on their actual or perceived disability. Students who are disabled or perceived to be disabled are verbally harassed by their classmates, who taunt them in the classrooms and the hallways and common areas. Some students are physically assaulted or intimidated by other students based on their disability, and others are even taunted and harassed by school administrators and teachers. 3. What is worse, complaints by student victims to administrators and teachers are met with deliberate indifference and institutionalized ostracism. When students who have been harassed have sought assistance from administrators at PLHS or SDUSD, instead of taking steps to ensure a safe and equal educational environment for all students, SDUSD and its agents and/or employees ignore these complaints. 4. Even more shockingly, teachers, employees and administrators at PLHS have not only ignored and been deliberately indifferent to the concerns of victims of anti-disability harassment, but in some cases have directly harassed students, acting as if they are lying, exaggerating or reacting with disbelief and mocking them, and have contributed to and exacerbated the hostile environment at PLHS. 5. The harassment suffered by Plaintiff Ryan Spink while she attends PLHS from 2009 and continuing is a deplorable, yet typical, illustration of this severe harassment and discrimination..

II. PARTIES



6. Plaintiff Ryan Spink was and is a student enrolled in schools within the SDUSD, specifically PLHS, beginning in or around August, 2009 and continuing to the present Ryan Spink is not alone, other disabled students have also faced harassment.. 7. Defendant San Diego Unified School District (“SDUSD”) is a public school district organized and operating under the laws of the State of California. SDUSD controls and operates PLHS and other public schools in the San Diego area. A portion of the funding for each of these schools comes from the state and federal governments. 8. Defendants Bill Kowba, SDUSD Superintendent of Schools; Bobbi Samilson, Principal at PLHS; and Hans Becker, Vice Principal at PLHS are or were, at all relevant times, individuals working as employees, teachers, agents and/or administrators of the SDUSD. 9. The SDUSD, by and through its Board of Education, and the Defendants sued individually in this lawsuit, were and are responsible for creating and maintaining an educational environment that is free from discrimination and harassment. These Defendants were and are also responsible for making policy and/or for implementing disciplinary, anti-harassment, and anti-discrimination policies. Further, these Defendants were and are responsible for enforcing and ensuring that their subordinates, agents, and employees were and are enforcing such laws and policies by taking prompt remedial action in response to incidents of inappropriate behavior, harassment and/or discrimination against students. 10. Plaintiff allege upon information and belief that each of the Defendants, including Defendants Does 1 through 25 inclusive, performed, participated in, aided and/or abetted, or were deliberately indifferent to the acts averred herein, proximately caused the damages averred below, and are liable to Plaintiff for the damages and other relief sought herein. The true names and official capacities of Defendants designated as Does 1 through 25, inclusive are unknown to Plaintiff, who therefore sue these Defendants by such fictitious names. Plaintiff will seek leave of Court to amend their complaint to show the true names and capacities of these Defendants when they have been ascertained. 11. Plaintiff allege upon information and belief that at all relevant times, each and every Defendant was the agent and employee of each and every other Defendant, was acting within the scope of such agency or employment, and was acting with the consent, permission and authorization of the remaining Defendants. All actions of each Defendant were ratified and approved by every other Defendant. Plaintiff further allege on information and belief that all of the actions alleged in this First Amended Complaint were taken pursuant to the customs, policies, and practices of the SDUSD and that Defendants have been, are presently and will be acting under the color and authority of the laws of the United States and the state of California. 12. Plaintiff complied with the requirements of the California Tort Claims Act by giving notice to SDUSD in December 2010. Plaintiff claims were rejected on or about January 14, 2011.

III. VENUE

13. Venue is proper in this Court because the events which give rise to Plaintiff’s claims took place within the Central Judicial District of the Superior Court of the County of San Diego, State of California.

IV. FACTS COMMON TO ALL CLAIMS

1. STUDENTS AT SDUSD SCHOOLS ARE PERSISTENTLY HARASSED ON THE BASIS OF THEIR ACTUAL OR PERCEIVED DISABILITY.

A. Students Are Being Verbally Harassed And Physically Assaulted And Intimidated By Other Students At SDUSD Schools.



14. Harassment and discrimination is a fact of life for students who are disabled or who are perceived as disabled attending schools within the SDUSD, specifically at PLHS. Students have been taunted and harassed by students, teachers, and administrators at SDUSD for being disabled or for being perceived as disabled. In some instances, this harassment is so severe that students are forced to quit attending their classes because of the constant abuse. 15. Plaintiff is informed and believes that a number of teachers at PLHS have listened to students openly make derogatory comments about disabled persons without making any attempts to stop them. Teachers have by their inaction communicated to students that they do not take complaints about harassment seriously. 16. Plaintiff Ryan Spink (“Ryan”) endured and continues to endure this pervasive harassment since arriving at PLHS in the Fall of 2009 and it continues to the present. Once students at PLHS learned that Ryan had epilepsy and suffered from seizures, they began to taunt and harass her. The extent and severity of harassment and assaults which she experienced in the 2009-2010 and 2010-2011 school years became increasingly frequent and increasingly severe. 17. Ryan Spink experienced her first seizure at approximately 12 years of age in February 2008. She experienced a period of migraine headaches, some of which required hospitalization prior to the first event. Although her first seizure was a more recognizable “tonic-clonic” seizure, the type of seizure lay people identify with the overall body shaking for example of a seizure, subsequent seizures were less visible, sometime partial or complex partial seizures involving only part of the body or the type of seizure that in the past would have referred to as “petit mal”. She was started on medication and seizure frequency declined from 50-100 seizures per day to 10-20 per day. She had many types of seizures, and frequently the seizures might not be recognized as such absent knowledge of her condition. It was for that reason that Ryan’s mother Roslyn Rawlins attempted to work with school officials addressing Ryan’s disability and school environment. 18. Commonly her seizures would involve looking “vacant” perhaps movements of her hands that were involuntary. Part of those seizures might have the appearance to be intoxicated, leaving her eyes bloodshot and having her laugh and babbling nonsense words or statements or even talking in a manner that seems coherent. Ryan’s mother made school officials aware of the type of seizures she experienced in October of 2008, giving them a letter from a treating pediatric neurologist. Accordingly, school officials had long known of the nature of Ryan’s seizures and how they would affect her learning experience. 19. For the bulk of these seizure problems Ryan was taking seizure medications. Ryan also would experience effects of the medication, for example, double vision. Ryan experienced difficulty with short term memory. She had difficulty with organization and shifting tasks, focus and sequencing, for example, following the steps to solve an equation. Throughout Ryan’s battle with epilepsy, her mother has attempted to work with school authorities to educate administrators, teachers and accordingly students regarding the nature and severity of Ryan’s illness and it affected her when in the classroom and on school premises. She may have episodes lasting from a few minutes to as long as hours and although she often will retain awareness or partial awareness she has no control over the seizure. 20. Although Ryan’s neurophysiological testing shows her to have strengths and she is not below average in intelligence, she has a mosaic of deficits because of the seizures. The seizure activity has left her with some problems relating to what the doctor’s call “executive functioning” given her weakened auditory retention and working memory and, non-verbal retrieval. She would perform some tasks poorly even though she performs other tasks well because of the location of lesion in her brain. 21. By the time Ryan started her freshman year at PLHS, her seizures had began to change. At this point, Ryan and her mother were advised she would need surgical intervention to stop the extremely frequent seizures. Both Ryan and her mother were hopeful when she moved from middle school to PLHS. But by October of 2009, it was abundantly clear that bullying of Ryan was not being addressed by the school district. Ryan’s mother repeatedly contacted school administrators, asking them to address the bullying by students. Ryan faced bullying from girls who made it clear that they did not believe Ryan suffered from epilepsy. In response, Ryan’s mother received information and assistance from the Epilepsy Society that she communicated to school administrators about how to address the needs of student with epilepsy. Throughout Ryan’s education to the present, Ryan’s mother, Roslyn Rawlins has attempted to engage the school authorities to educate themselves and accordingly the students. However, throughout, Ryan’s school teachers and counselors and administrators failed to take seriously the complaints brought to them, often indicating they thought that Ryan was exaggerating the severity



of her health condition. Teachers and administrators would tell other students that they did not believe Ryan, which only encouraged her harassers. That was in spite of documented seizure activity that at it’s worst had ranged from 50-100 seizures a day and had been reduced by medication to a life altering 10-20 seizures a day. 22. Over the past four years, Ryan has received extensive treatment and Ryan’s mother has repeatedly and consistently informed the school authorities of the nature and progress of Ryan’s treatment. Ultimately, Ryan’s doctors proposed surgery because of the seemingly uncontrollable frequency of her seizures. The Temporal Lobe lesion was removed by brain surgery in March 2011, but she still faces a lengthy recovery. 23. Ryan has been physically assaulted while at the school. These events have been brought to the administration’s attention through one method or another. Ryan and her mother have made multiple complaints with the school, but there have been no results. 24. One of the school’s vice principals, Hans Becker, has also refused to address the harassment of Ryan. Defendant Becker has dismissed the attempts of Ryan and her mother to address the problem. Vice Principal Becker’s conduct violated Ryan’s rights. 25. Ryan received extensive neurological testing at with pediatric neurological specialists at the University of California, San Francisco (“UCSF”) and on March 16,2011 surgery was performed to remove a brain lesion doctor’s believe was the cause of her uncontrolled seizure activity. This dangerous surgery was Ryan’s best chance to improve her seizure disorder. Ryan subsequently spent much of the spring of 2011 recovering from that surgery. After that surgery Ryan commenced with a program called “Home Hospital” to keep her involved in her education. On May 10, 2011, Ryan’s mother wrote Mr. Lees inquiring about Ryan’s transition back to school. This was to help Ryan in her return from home back to a school setting. The Home Hospital education ended on May 20, 2011. Only on May 23 did Ryan’s mother receive the progress report and a copy of a letter from Home Hospital sent to the principal of PLHS stating Ryan would return to school as of May 20, 2011. Ryan’s mother than contacted Mr. Lees again about Ryan’s return proposing May 24,2011. However, when Ryan attempted to return to school she was turned away by the Attendance Department stating she was still enrolled in Home Hospital Program, in spite of the communications with school administrators and was not allowed to re-enroll back at PLHS. On May 31, when Ryan had still not having received any information about her return to school Ryan’s mother spoke with Mr. Lees again. She was informed he would email her about evaluation for re-enrollment and assessments as well as Ryan’s remaining academic work needed and review for examinations. Only after prompting from Ryan’s mother was Ryan finally returned to the campus. 26. The harassment that students who are disabled or perceived as disabled suffer is not limited to verbal harassment, but is often escalated to physical assault and intimidation, both on and off campus. 27. Similar types of behavior have been directed at Ryan. Ryan and her mother have reported numerous incidents to school authorities and teachers. For example, when Ryan started to attend PLHS, one of the girls who is one of her persistent tormenters told the students that Ryan is epileptic and she was “contagious”. Thereafter, students Ryan did not know would come up to her and say things like “I hate you” and “I don’t want to get your disease.” The same student engaged in a concerted course of harassing activity against Ryan and involved other students. If Ryan was in the hallway between classes this girl would literally cross over to push her. Ryan had filed incident reports, but when nothing was done to address the harassment she quit doing so, and relied on her mother to make complaints to school authorities. Ryan received hundreds of phone calls and “texts” intended to harass her including voice mails suggesting that she commit suicide. 28. On April 30,2010, an egregious example of the kind of harassment experienced by Ryan Spink occurred on school property. Ryan was walking through an area where students gathered together. She was not feeling well and began to feel that she was having a seizure. “Bryan” was the only person in the area who knew she had seizures. She went to get help, telling Bryan she was having a seizure. He responded: “Really? Not even”. She could not remember what he said next. Bryan followed her and stopped in front of her. He hit her in the head. Ryan told him to stop, but Bryan then hit her three more times. 29. Ryan lost her vision temporarily, and she lost awareness of her surroundings temporarily. Another student found her wandering in the area and sat her down. As Ryan became more alert and a security monitor “Miss Priscilla” came to her.



Miss Priscilla had seen part or all of the altercation and asked Ryan if she wanted to file a complaint. Ryan, still disoriented, said “no”. She was taken to a school office where another security employee brought her assailant Bryan. Ryan was then put into a counselor office. The counselor, Ms. Kissin asked her what happened. Ryan told her. Kissin left the room, and when she returned, she accused Ryan of exaggerating the incident, adopting the assailant’s description of the blows as just “flicking” her. However, Ryan’s doctors described the injury she suffered as a concussion, hardly the result of innocent contact. The assailant, Bryan, knew Ryan to be epileptic. He struck her to see if he could induce a seizure. 30. Ryan after the assault continued to be the target of numerous incidents of harassment via social medial like Facebook. She received numerous harassing texts as well. It was Ryan’s mother who made a police report after the assault not the school. And although the school is required to make a proper incident report, when Roslyn Rawlins requested a copy of that incident report she was told there wasn’t one. Roslyn Rawlins contacted school officials and asked them to preserve the security videotapes of the time of the of the assault at that location. She was told the tape had already been erased even though she had contacted the next day. At every turn, both individuals charged with protecting Ryan choose to minimize, discount or dismiss her complaints about this assault. The assailant’s story changed repeatedly, although Ryan reported “hit,” Bryan has insisted he has hit her with an open hand. By the time he faced school authorities, not surprising, had been “flicked” Ryan. School officials choose to believe the assailant’s version, someone who had gone out of his way to assault her. 31. Based upon the complaint made by Ryan’s mother to the police, Bryan was arrested and the case taken to Juvenile Court. The court issued “stay away” orders that require Bryan to stay away to keep a certain distance from Ryan and not have contact with her. Yet, almost immediately thereafter Bryan made point of violating the terms of that stay away order, while on bicycle, riding quickly up to her and stopping sharply in front of her to frighten her. When Ryan’s mother complained to the school, the school security officer, Officer Gonzalez, did not understand what to do with the court order. Because school authorities would do nothing Ryan’s mother went to the County Probation Department and asked a probation officer to take action. Again Bryan did not modify his behavior and continued attempts to intimidate and harass Ryan by making purposeful and direct contact with her. 32. Roslyn Rawlins took her concerns directly to Vice Principal Becker. Becker’s response was that they were waiting to arrange a conference call with the district attorney’s office. That was in spite of the fact that they had already spoken with Bryan’s probation officer and had a presumably experienced security office on staff and the school district’s own lawyers as resources. They continued to drag their feet about protecting Ryan. On October 1, Roslyn Rawlins informed Vice Principal Becker of another incident involving Bryan. Another student who was favorable to Ryan was being bullied and cyber bullied by a group of girls being encouraged to do so by the assailant Bryan. One of those girls had also vandalized Roslyn Rawlins’ automobile by throwing an egg at it and also threw an egg at Ryan as well. The harassment had extended beyond simply Ryan herself but people simply associated with her. Again the school choose to disregard these concerns brought to them. 33. In the course of these events, Ryan’s mother Roslyn Rawlins had obtained the assistance of an advocate of Disability Rights of California to work with her and the IEP process. With her assistance, Roslyn attempted to have safety plan and goals be included in that process. She also by doing research was able to suggest specific methods to resolve some of Ryan’s problems. 34. In addition to the constant emotional, physical and psychological harassment and discrimination being perpetrated on Ryan by students, staff and administrators at PLHS and in SDUSD, Ryan has received threats during the school year. She has informed the school of these threats, but SDUSD and PLHS have taken no action. 35. Students, including Ryan, who are disabled experience chronic psychological injury from the conditions they must endure at school each day. They suffer from extremely low self-esteem as a result of their feelings of alienation, isolation, and fear. Their friends stop speaking to them and begin to taunt and harass them. Ryan worries about what might happen tomorrow. Often, their grades suffer, they fail classes, and they contemplate dropping out of school altogether.

A. Students Are Being Harassed By Their Own Teachers And Administrators.

36. This hostile climate for students who are disabled or who are perceived as disabled is perpetuated by the teachers and



administrators at schools within the SDUSD, specifically at PLHS. 37. Plaintiff is informed and believes that teachers and administrators have participated in the harassment of disabled students. At least one administrator improperly attempted to undermine Roslyn Rawlin’s efforts to have the bullying and harassment addressed. Administrators have mocked or ignored students or their parents who have come to them pleading for relief from the disability harassment. 38. Plaintiff is informed and believes that administrators, staff and teachers and students openly discuss their perceptions that Ryan is disabled in a derogatory and/or disapproving manner outside of her presence. Plaintiff has also personally experienced and/or witnessed this type of behavior. 39. Plaintiff is informed and believes that other incidents may have occurred where teachers and administrators within the SDUSD have harassed disabled students.

B. Defendants Have Failed To Provide Adequate Support Mechanisms For Disabled Students And Have Failed To Enact Policies To Ensure That Its Schools Are Safe From Disability Harassment.

40. Little support exists on SDUSD campuses, and, in particular, at PLHS, for students who are disabled or who are perceived as disabled. In fact, Plaintiff is informed and believes that SDUSD may have explicit or unwritten policies designed to deter disabled students from being open about their disabilities and freely associating with one another. These policies promote and perpetuate disability harassment at SDUSD schools, including PLHS. 41. Further, Plaintiff is informed and believes that the SDUSD had no effective formal or informal policy to ensure that its schools are safe for students who are disabled or who are perceived as disabled. The SDUSD has no adequate policy in place to prevent or deter students from taunting, harassing, and assaulting other students who are disabled or who are perceived as disabled. The absence of such a policy promotes and perpetuates disability harassment at SDUSD schools and PLHS in particular. 42. Teachers, counselors, and administrators at SDUSD schools, including PLHS, are not adequately trained how to assist students who are victims of disability harassment at SDUSD schools. Guidance counselors provide no meaningful assistance to students dealing with issues relating to disabilities and/or harassment relating to perceived disabilities. Instead, it has been PLHS and SDUSD’s practice to ignore harassment based on actual or perceived disability and to refuse to make any attempts to stop students and teachers from perpetrating any further acts of harassment. 43. The school expressly rejected the request by Ryan’s mother, based on her communications with experts in Epilepsy and disability accommodation, for an inclusion specialist to assist in helping Ryan and similarly situated students. 44. In fact, the vast majority of teachers, counselors, and administrators are completely insensitive and/or oblivious to the needs, confidences, and dignity of disabled students. For example, Defendant Samilson’s response to a PLHS student demeaning and discounting Ryan’s complaint right in front of her shows his bias, insensitivity and lack of concern for Ryan. Defendants’ lack of response or concern regarding the many instances of harassment, assaults and vandalism by school authorities are yet more examples. 45. Administrators and teachers at SDUSD schools have further fueled the hostile environment aimed at disabled students by promoting discussion designed to refute or explain away complaints of disability harassment discounting or dismissing the concerns student victims of harassment.

II. DEFENDANTS IGNORE AND EXACERBATE THIS HARASSMENT WHEN STUDENTS SEEK HELP FROM TEACHERS AND ADMINISTRATORS.



A. Teachers And Administrators Routinely Ignore Student Complaints About Harassment.

46. This climate of harassment has severely harmed disabled students who have attended SDUSD schools, including Plaintiff. Some disabled students are afraid to even approach the administration and ask for help for fear that they may face retaliation. Other students who are disabled have complained repeatedly to PLHS teachers and administrators about the hostile climate for them on campus. Teachers and administrators have taken no action to remedy the harassment and hostile climate and have not attempted to enact formal or informal policies on how to prevent such harassment. 47. Even when parents have attempted to intervene with teachers and administrators, the SDUSD does nothing to stop the harassment. Indeed, some Pt. Loma parents are outraged that the administration at PLHS has done nothing in the face of these problems. 48. Plaintiff tried to get the administrators at PLHS to stop the students and teachers from harassing them. On multiple occasions, Ryan and her mother, together and separately, went to the principal of PLHS, Defendant Bobbi Samilson, and told her exactly what harassment or assaults they had experienced. They asked Defendant Samilson to take some action to reprimand the actors for this behavior or to intervene to protect Ryan from this kind of abuse. Defendant Samilson not only refused to take any action. 49. Plaintiff contacted SDUSD Superintendent Bill Kowba to discuss the constant harassment and discrimination that they had been suffering. Defendants’ have declined to do so.

III. THE HOSTILE ENVIRONMENT AT SDUSD SCHOOLS CREATED AND FOSTERED BY DEFENDANTS CAUSES SUBSTANTIAL INJURY TO PLAINTIFF RYAN SPINK AND STUDENTS AND PARENTS.

50. The hostile environment towards disabled students at PLHS discourages students from questioning or confronting their own disability issues for fear that doing so could subject them to verbal and physical harassment. 51. Students such as Ryan Spink who cannot hide their disability or choose not to at SDUSD schools re subjected to the types of severe verbal and physical harassment described herein and suffer physical and emotional damage from this hostile environment. Further, if these students are transferred from their classrooms into alternative education programs, they lose the ability to participate in extracurricular activities, they receive an inadequate education, and their future educational opportunities are severely limited. 52. As a result of this environment, these students and others within the SDUSD are deprived of an open educational forum free from unlawful harassment and discrimination. 53. In addition, able-bodied students are deprived of an environment that is free from hostility directed toward students who are disabled or perceived to be disabled. In fact the hostile environment at PLHS and SDUSD’s failure to correct that environment or take appropriate steps to respond to specific instances of harassment actually teaches all students that harassment of, and discrimination toward, individuals suspected to be disabled is acceptable, if not commendable, behavior. Parents in the PLHS community are concerned about the environment of hostility and discrimination in SDUSD schools and do not want their own children, whether disabled or not, to be educated in such an intolerant climate. 54. Despite its responsibility for these wrongs, SDUSD has done nothing about the injuries it has caused.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

(42 U.S.C. §1983; Equal Protection Under U.S. Constitution Amend. XIV)



[By Plaintiff Ryan Spink against Defendants SDUSD by and through its Board of Education, Bill Kowba, Bobbi Samilson and Hans Becker]

55. Plaintiff reallege and replead all the allegations of Paragraphs 1-70 of this Complaint and incorporate them herein by reference. 56. Plaintiff was and is a student at PLHS from 2009 to the present. Beginning in 2009 and continuing, Ryan was taunted, harassed, and discriminated against by students, teachers, and administrators at PLHS on the basis of her actual or perceived disability. She was taunted about her disability on the PLHS campus by students and, if not by, in the presence of school district agents and employees. 57. SDUSD has no adequate or effective formal or informal policy to ensure that PLHS was safe for students who, like Plaintiff, are disabled or who are perceived as disabled. When Plaintiff complained to Defendants Bill Kowba, Bobbi Samilson and Hans Becker, these Defendants were deliberately indifferent to Ryan’s safety and none of them took any meaningful action to stop the harassment and discrimination they was suffering. 58. As a result of Defendants’ actions, failure to act, and/or deliberate indifference, Plaintiff has been damaged emotionally and physically by the harassment and discrimination described above. Ryan has also been damaged to the extent that her treatment at PLHS has negatively affected, and will continue to negatively affect, her future educational and career prospects. 59. Defendants’ actions, failure to act, and/or deliberate indifference towards the harassment and discrimination Ryan suffered was carried out because of her actual or perceived disability in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983. At all times, Defendants have been, are presently and will be acting under the color and authority of the laws of the United States and the State of California. As a result of this discrimination and harassment, Ryan suffered economic and non-economic damages in an amount to be more precisely determined at trial. 60. Plaintiff seek a judgment declaring that the intentional acts and the acts of deliberate indifference described above perpetrated by the SDUSD and the Defendants are prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 and seek the injunctive relief set forth in the prayer for relief. 61. By failing to follow SDUSD procedures or the minimum procedures required by the Constitution and state law, Defendants deprived this student of her liberty interest in a safe, secure and peaceful education in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. At all times, Defendants have been, are presently and will be acting under the color and authority of the laws of the United States and the State of California. 62. Plaintiff therefore seek a judgment declaring that the intentional acts and the acts of deliberate indifference described above perpetrated by the SDUSD and the Defendants are prohibited by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983, and seek the injunctive relief set forth in the prayer for relief.

SECOND CLAIM FOR RELIEF

(42 U.S.C. §1983; Procedural Due Process Under U.S. Constitution Amend. XIV)


63. Plaintiff realleges and repleads all the allegations of Paragraphs 1-79 of this Complaint and incorporate them herein by reference.



64. Plaintiff Ryan Spink has a protected liberty interest in a high school education, conferred by the California State Constitution and Education Code. Article I, Section 28(c) recognizes that students in California schools have an “inalienable right to attend campuses which are safe, secure and peaceful,” and Article 9, Section 1 recognizes that “[a] general diffusion of knowledge and intelligence [is] essential to the preservation of the rights and liberties of the people.” The California Education Code, Sections 48200 et seq., recognizes the importance of education to children through the age of eighteen. Further, Education Code Sections 200 et seq. specifically prohibit discrimination on the basis of actual or perceived disability, and California regulations require the SDUSD to implement policies to prevent and/or respond to acts of harassment and discrimination in schools. 65. SDUSD and/or Defendants have a custom, policy, and/or they tolerate a custom or policy that results in intentional discrimination and/or deliberate indifference to Plaintiff’s legal rights. Plaintiff was deprived of her liberty interest in a safe, secure and peaceful education without due process of law. Plaintiff was and is a student at PLHS from 2009 to the present. Plaintiff has been taunted, harassed, and discriminated against by students, teachers, and administrators at PLHS on the basis of her actual or perceived disability. 66. SDUSD had no adequate or effective formal or informal policy to ensure that PLHS was safe for students who, like Plaintiff, are disabled or who are perceived as disabled. When Plaintiff complained to Defendants Bill Kowba, Bobbi Samilson and Hans Becker, these Defendants were deliberately indifferent to Plaintiff’s safety and none of them took any meaningful action to stop the harassment and discrimination Plaintiff was suffering. 67. As a result of Defendants’ actions, failure to act, and/or deliberate indifference, Plaintiff may not receive enough credits to graduate high school with her class, may not receive a diploma, and is being deprived of educational opportunities. Plaintiff has been damaged emotionally and physically by the harassment and discrimination described above. Plaintiff has also been damaged to the extent that her exclusion from PLHS has negatively affected, and will continue to negatively affect, her future educational and career prospects. 68. Defendants’ actions, failure to act, and/or deliberate indifference toward the harassment and discrimination Ryan suffered was carried out because of her actual or perceived disability. Ryan was constructively expelled because of the discrimination and harassment she suffered at the hands of administrators, counselors, and teachers and the pervasive discrimination she suffered at the hands of other students as a result of the actions and deliberate indifference of Defendants and other SDUSD administrators, counselors, and teachers. 69. Defendants did not follow SDUSD procedures or the minimum procedures required by the Constitution and state law in response to Plaintiff’s complaints of harassment and discrimination. As a result of the foregoing actions, failure to act, and/or the deliberate indifference of Defendants, Plaintiff was damaged. 70. By failing to follow SDUSD procedures or the minimum procedures required by the Constitution and state law, Defendants deprived Plaintiff of her liberty interest in a safe, secure and peaceful education in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. At all times, Defendants have been, are presently, and will be acting under the color and authority of the laws of the United States and the State of California. As a result, Ryan suffered economic and non-economic damages in an amount to be more precisely determined at trial. 71. Plaintiff therefore seeks a judgment declaring that the intentional acts and the acts of deliberate indifference described above perpetrated by the SDUSD and the Defendants are prohibited by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, and seek the injunctive relief set forth in the prayer for relief. 72. Plaintiff therefore seeks a judgment declaring that the intentional acts and the acts of deliberate indifference described above perpetrated by the SDUSD and the Defendants are prohibited by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983, and seek the injunctive relief set forth in the prayer for relief.



THIRD CLAIM FOR RELIEF

(California Education Code Sections 200, 220, 233.5, 262.4; Student Discrimination)

[By Plaintiff Ryan Spink against Defendants SDUSD by and through its Board of Education]

73. Plaintiff realleges and repleads all the allegations of Paragraphs 1-97 of this Complaint and incorporate them herein by reference. 74. Plaintiff Ryan Spink was a student at PLHS from 2009 to the present. Beginning in 2009 and continuing until the present, Plaintiff was taunted, harassed, and discriminated against by students, teachers, and administrators at PLHS on the basis of her actual or perceived disability. She was called names, demonized and accused of lying and subjected to other derogatory verbal assaults on the PLHS campus by other students. 75. SDUSD had no adequate or effective formal or informal policy to ensure that PLHS was safe for students who, like Ryan, are disabled or who are perceived as disabled. When Ryan complained to Defendants Bill Kowba, Bobbi Samilson and Hans Becker, these Defendants were deliberately indifferent to Ryan’s safety and none of them took any meaningful action to stop the harassment and discrimination Ryan was suffering. 76. As a result of Defendants’ actions, failure to act, and/or deliberate indifference, Ryan may not receive enough credits to graduate high school with her class, may not receive a diploma, and was deprived of educational opportunities. Ryan has been damaged emotionally and physically by the harassment and discrimination described above. 77. Defendants’ actions, failures to act, and/or deliberate indifference towards the harassment and discrimination Ryan suffered were carried out because of her actual or perceived disability. Through these intentional acts and the acts of deliberate indifference, Ryan were deprived of the equal rights and opportunities in a public educational institution as guaranteed under the California Education Code Sections 200, 220, 233.5, and 262.4. As a result, she suffered economic and non-economic damages in an amount to be more precisely determined at trial.

FOURTH CLAIM FOR RELIEF

(California Civil Code Sections 51 & 52(a), Unruh Civil Rights Act)


78. Plaintiff realleges and repleads all the allegations of Paragraphs 1-103 of this Complaint and incorporates them herein by reference. 79. Defendants are engaged in the business of operating schools which are business establishments pursuant to Civil Code Section 51. More specifically, Defendants provide educational services to Plaintiff in exchange for payments made by Plaintiff and Plaintiff’s parents. Defendants’ activities are related to the economic interests of Plaintiff, Plaintiff’s parents and society as an educated society. 80. Plaintiff Ryan Spink was a student at PLHS from 2009 to the present. Beginning in 2009 and continuing until the present, Ryan was taunted, harassed, and discriminated against by students, teachers, and administrators at PLHS on the basis of her actual or perceived disability. 81. SDUSD had no adequate or effective formal or informal policy to ensure that PLHS was safe for students who, like Ryan, are disabled or who are perceived as disabled. When Ryan complained to Defendants Bill Kowba, Bobbi Samilson and Hans



Becker, these Defendants were deliberately indifferent to Ryan’s safety, and none of them took any meaningful action to stop the harassment and discrimination Ryan was suffering. 82. As a result of Defendants’ actions, failure to act, and/or deliberate indifference, Ryan may not receive a diploma with her class, and was deprived of educational opportunities. Ryan has been damaged emotionally and physically by the harassment and discrimination described above. Ryan has also been damaged to the extent that her constructive expulsion from PLHS has negatively affected, and will negatively affect, her future educational and career prospects. 83. Defendants’ actions, failure to act, and/or deliberate indifference toward the harassment and discrimination Ryan suffered was carried out because of her actual or perceived disability. These actions, failures to act, and/or deliberate indifference denied her the full and equal accommodations, advantages, facilities, privileges, and services in a business and public accommodation under Civil Code Section 51 and 52(a). As a result, Ryan suffered economic and non-economic damages in an amount to be more precisely determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as stated below: 1. Issue a judgment declaring that the acts of the Defendants described herein violate the Fourteenth Amendment to the Constitution of the United States, California Education Code Sections 200 et. seq, and Civil Code Sections 51 et seq; and further that said constitutional and statutory rights so violated are present rights of Plaintiff which must immediately be respected and protected. 2. Issue an injunction ordering Defendants to stop engaging in such unconstitutional and unlawful acts, and to develop policies and procedures for ending any such unconstitutional and unlawful acts and the hostile and intolerant environment, including but not limited to the following: a. Require Defendants to implement mandatory training programs for SDUSD administrators, faculty and staff on issues relating to diversity, disability issues, and methods to intervene to stop students from harassing other students who are disabled or perceived to be disabled. b. Require Defendants to adopt policies with specific guidelines for instructing teachers and administrators about how to address complaints by students who have been taunted, harassed, or discriminated against because of their actual or perceived disability. c. Require teachers and administrators in SDUSD high schools to conduct assemblies for all students addressing issues of diversity, disability issues in general and epilepsy in particular, and tolerance, wherein students are instructed about laws prohibiting harassment and discrimination based on actual or perceived disability. d. Require Defendants to maintain statistical data concerning each complaint of disability harassment made by a student, as well as the specific action SDUSD teachers and administrators took to resolve that complaint. e. Require Defendants to facilitate formation of extracurricular clubs addressing disability discrimination and intolerance at SDUSD high schools, when students approach them with a request for such a club. f. Require Defendants to engage the services of an inclusion specialists to assist Ryan Spink and other similarly situated students. 3. For compensatory damages and consequential damages to be awarded to Ryan Spink according to proof at trial; 4. For exemplary and punitive damages to be awarded to Ryan Spink according to proof at trial; 5. For interest;



6. For costs of suit and attorneys’ fees pursuant to state and federal statutes; and 7. For such other and further relief as the Court may deem just, proper, and appropriate. Dated: 6-11, 2011. Respectfully submitted, ROSENSTEIN, WILSON & DEAN, P.L.C. By: <<signature>> Paula S. Rosenstein, Esq. Bridget J. Wilson, Esq. Attorneys for Plaintiff Ryan Spink

End of Document


Ryan SPINK by and through her guardian ad litem, Roslyn Rawlins, Plaintiff, v. SAN D...


Related Dockets (1)

Title Court Date

1. Docket 37-2011-00092799-CU-CR-CTL RAWLINS EX REL. SPINK v. SAN DIEGO UNIFIED SCHOOL DISTRICT

Cal.Superior Jun. 10, 2011


Defendant’s Reply Memorandum of Points and Authorities in Support of Her Motion for An Award of Reasonable Attorneys’ Fees and Costs CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County


v. Tracy L MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an

individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida Corporation; Thompson Aviation Consulting, inc., a Florida Corporation;


No. GIC 858344. October 26, 2007.

Defendant’s Reply Memorandum of Points and Authorities in Support of Her Motion for An Award of Reasonable Attorneys’ Fees and Costs

Paula S. Rosenstein, Esq. (SBN 126264), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, California 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant Tracy L. Means.


Dept.: 65 Time: 8:30 a.m. Complaint Filed: December 13, 2005 Trail Date: Not Applicable Tentative Ruling Available 10/25/07 at 4:00 p.m at (619) 531-3690 or www.sdcourt.ca.gov

I. INTRODUCTION Plaintiff has submitted a brief in opposition to Defendant’s motion for attorney’s fees which is long on hyperbole but short on applicable facts and law. By and large, Plaintiff’s brief is designed to mislead the court rather than argue relevant law. The court should not allow itself to be distracted by Plaintiff. This Motion is not a motion for reconsideration of the court’s decision in Means v. City of San Diego as Plaintiff argues. The two cases are separate, the issues are separate and the decision in the other case is not relevant to the decision to be made here. Nor does this motion ask the court to “turn over two hundred years of legal tradition.” Rather, this motion asks the court to decide an issue based on the applicable California statutes. Defendant Tracy Means’ motion simply asks the court to apply the statutes governing the payment and reimbursement of attorney’s fees, costs and expenses and award her reasonable attorneys fees, costs and expenses. Plaintiff has conceded that the request Ms. Means’ made for fees, costs and expenses is reasonable as there are no arguments to the contrary contained in



Plaintiff’s opposition brief. Plaintiff therefore should be ordered to reimburse Defendant no less than $252,850.00 as and for attorneys’ fees and non-statutory costs in the amount of $5,893.19 for a total of $258,743.19.1

1

This amount includes an additional $1800 for 4.5 hours of work in preparing this Reply brief and appearing at the hearing of this motion.

II. CALIFORNIA STATUTES GOVERN

Plaintiff’s discussion regarding the “American Rule” and its impact on this motion is simply an attempt at mis-direction. Plaintiff says it itself when quoting California Code of Civil Procedure Section 1021, “Except as attorney’s fees are specifically provided for by statute...” In the instant case, costs of defense for government employees and former employees are specifically provided for by statute. Government Code Section 995 specifically requires the employing public entity to pay for all of the costs of defense associated with an employee being sued for actions taken in the course of her employment.2 Section 995 is a very broad statute and intentionally so. The legislature, in adopting Section 995, wanted to be certain that except in egregious situations such as those involving actual fraud, corruption or actual malice, government employees would not have to bear the expense of defending themselves in a lawsuit. Plaintiffs attempt to minimize this statutory provision fails. 2

All code section citations hereafter are to the Government Code unless otherwise specified.

A. With Summary Judgment Granted, Govt. C. Section 996.4 Governs.

Plaintiff states that “There Is No ‘Winner’s Exception’ to §§ 995.2(a) and 995.4(a)” but, in fact, there is. (City’s P’s & A’s In Opposition to Means’ Motion for Attorney Fees, p.5, 1.2.) Government Code Section 996.4 states, in pertinent part:

If after request a public entity ...refuses to provide... a former employee with a defense against a civil action or proceeding brought against him and the employee retains his own counsel to defend the action or proceeding, he is entitled to recover from the public entity such reasonable attorney’s fees, costs and expenses as are necessarily incurred by him in defending the action or proceeding if the action or proceeding arose out of an act or omission in the scope of his employment as an employee of the public entity, but he is not entitled to such reimbursement if the public entity establishes (a) that he acted or failed to act because of actual fraud, corruption or actual malice, or (b) that the action or proceeding is one described in Section 995.4.

In this case, the City refused to provide Ms. Means with a defense. She therefore retained her own counsel. She is now entitled, according to Section 996.4, to recover them since the action or proceeding arose out of acts taken in the course of her employment. The exceptions provided for in Section 995.2(a) upon which Plaintiff has relied in opposing this motion no longer apply or provide Plaintiff with a safe harbor. Since the case has been resolved in Ms. Means’ favor, there are now only two possible escapes for the City. First, pursuant to Section 996.4 (a), if the public entity establishes that Ms. Means acted or failed to act because of actual fraud, corruption or actual malice, it may be excused from the Section 995 requirements. In this case, however, the Court has already found that the City, as a matter of law, can not establish that Ms. Means was acting or failing to act because of actual fraud, corruption or actual malice. As such, reimbursement of Ms. Means attorney’s fees, costs and expenses is required. Plaintiff’s second possible escape is if it can establish, as stated in subsection (b) of Section 996.4, that this civil suit for damages is the kind of action or proceeding described in Section 995.4. Section 995.4, however, still does not provide



Plaintiff with an escape from its obligation to reimburse Ms. Means for her fees, costs and expenses incurred in defending this frivolous suit brought without City Council or Mayoral approval. Section 995.4(a) requires that the action be one to “remove, suspend or otherwise penalize” Ms. Means. Clearly, it was not brought to remove or suspend Ms. Means. And contrary to Plaintiff’s assertion in its brief, Ms. Means does disagree that this lawsuit was brought to “penalize” her as that term is used is used in the law. (City P’s & A’s, p. 2,1.23-24.) To understand the word “penalize” in the proper context, the phrasing of Section 995.4(a) must be considered. It states in pertinent part,: a public entity may provide for the defense of: “a) an action or proceeding brought by the public entity to remove, suspend or otherwise penalize its own employee or former employee or an appeal to a court from an administrative proceeding by the public entity to remove, suspend or otherwise penalize its own employee or former employee.” This subsection (a) is clearly inapplicable as it has to do with disciplinary processes or matters before or arising out of civil service commission procedures. The language of the statute says the action or proceeding is brought to “remove, suspend, or otherwise penalize”. Obviously, removal and suspension have to do with disciplinary actions and penalizing an employee typically has to do with disciplinary action, such as a demotion, or perhaps criminal penalties. It has nothing to do with seeking damages in a civil lawsuit. Moreover, “Penalizing” Ms. Means requires punishment for wrongdoing. Ms. Means did not engage in any wrongdoing and therefore there is nothing for which to penalize her. According to Black’s Dictionary, Fifth Edition, “a penalty provision operates to compel performance....is compelled without regard to actual damages sustained by party aggrieved by breach.” It defines “penalty clause” as any provision which calls for the exaction of a penalty instead of actual damages. By the plain language of this subsection, it is clear that the City can not find protection in Govt. Code Section 996.4(b). These provisions, Sections 996.4 and 995.4, would be meaningless if they allowed an entity to simply allege causes of action without foundation in order to avoid its defense obligations under Section 995. If this was a proper reading of the statute then in every case, an entity could simply cross-complain against its named employee to avoid providing a defense for her. Such a result would be counter-productive and, more importantly, counter to the clear legislative intent that government employees should be protected from suits relating to alleged wrongdoing committed in the course of their employment. In fact, in the case of Johnson v. State of California, the California Supreme Court specifically stated that government employees should not face the financial and mental burden of defending her official conduct in suit filed against her. Johnson v. State of California, (1968) 69 Cal. 2d 782, 791. The Johnson court goes on to say:

The public employee need not suffer concern over the possibility that he will be compelled to finance and oversee a tort suit filed against him personally; the statute provides for defense by the public entity upon notice, and the employee’s best interests clearly favor the giving of such notice. Moreover, the public employee faces only a slim danger of ultimate personal liability; such liability attaches only in the rare instances of injuries arising from acts either outside the scope of employment or performed with actual fraud, corruption, or malice. Indeed, a principal purpose of the indemnification scheme laid out in Government Code sections 825 to 825.6, limiting the personal threat of suit or liability, centered on assuring the zealous execution of official duties by public employees. To the extent that the ardor of public employees might be affected by the threat of personal liability, n6 these fears will be allayed by the indemnification provisions. Id at 791-792. (Emphasis added).

In this case, Ms. Means, as the court found, was acting within the course and scope of her employment and without actual fraud, corruption or actual malice. Ms. Means is precisely the type of government employee the Johnson court held should not have to worry or be concerned that her financial and emotional health be threatened because of the duties she performed in her government job. Attorney’s fees and costs should be awarded in this case.



III. PLAINTIFF’S HYPERBOLE IS MISLEADING

The City’s brief is replete with hyperbole that is not only excessive and unhelpful but is also misleading, much of it intentionally so. The degree of hyperbole used by Plaintiffs counsel serves to cast doubt on all of the City’s arguments. Some of Plaintiff’s brief simply misrepresents Defendant’s positions on various facts and the law but other parts of the brief are dismaying in the failure to bring matters to the court’s attention law as is required by California Rule of Professional Responsibility 5-200. In order to try to help sort out some of the mis-direction, Defendant will identify several specific instances of the superfluous and incorrect arguments. First, in the very first line of the brief, Plaintiff states, “City of San Diego replies to Tracy Means’ third attempt at attorneys’ fees.” (City P’s & A’s, p. , 1. 23.) This is an obviously incorrect statement. Even if the Petition for Writ of Mandamus known as Means v. City of San Diego is considered one of the attempts to obtain attorneys’ fees, the fact that Defendant filed and then withdrew her initial motion for fees in this case the next day because of timing issues can not possibly I be considered an attempt to obtain fees.. Second, Plaintiff’s discussion of the “American Rule” and its suggestion that Ms. Means wants the court to overturn “two hundred years of legal tradition and convert our cherished American system of attorney compensation” attempts to hide the fact that this case and this issue of attorney’s fees is governed by statute and not by the general “American Rule.” (City P’s & A’s, p.2,1. 12-22.) Third, the repeated statements that “no one disagrees” with this or that are completely wrong. (See, for instance, City P’s & A’s, p.2,1. 23; p.3, I. 1.) Plaintiff is hoping that by saying that no one disagrees, it will make it so. The problem is that Defendant does, in fact, disagree. Fourth, Plaintiff misreads and misstates the Court’s decision in the summary judgment ruling of Means v. City of San Diego. The Court’s ruling was very narrow and tailored to the issues raised by the Mandamus Petition. (City P’s & A’s, p.3, 6 and 7) Plaintiff’s attempt to read it broadly and apply it to the issues in this motion are simply a desperate attempt to avoid the consequences of the folly which was City of San Diego v. Means. Fifth, the focus on what the City believed back in March 2006 at the City Council hearings is irrelevant to the decision being made in this motion. What the City believed does not matter in this lawsuit. (City P’s & A’s, p.5,1.21-22, p.6,1.6-16.) What it had as evidence to support its allegations which is to say nothing - is what is at issue.3

3

It is very questionable as to whether “the City” believed anything. Rather, it is the City Attorney alone who held whatever beliefsare being advanced in this brief.

Sixth, Plaintiff repeatedly states, “her employer” this or “her employer” that. For example, Plaintiff says, “There was never an issue as to whether Ms. means’ employer had a right to accuse her of misdeeds.” (City P’s & A’s, p.5,1.2425). The problem here is that Ms. Means’ employer was the City of San Diego. Her employer did not decide to sue her. Her employer did not accuse her of misdeeds. Rather, the City Attorney, without City Council or Mayoral approval, decided to sue her sua sponte. Finally, and most significantly, Plaintiff asserts that there is no “winner’s exception” to Govt Code Sections 995.2(a) and 995.4(a) when in fact there is. Despite Plaintiff’s great familiarity with the I statutes and rules surrounding the issue of when and whether to provide a defense to a current or former employee, Plaintiff failed to raise or even recognize the existence of Section 996.4 which is actually the controlling statute after there has been a decision on the merits. Under California Rule of Professional Responsibility 5-200, an attorney has the obligation to bring certain types of case law and statutes to the attention of the court, even if it is harmful to an attorney’s position. Rule 2-500 says, in part, “a member...(B) Shall not seek to mislead the judge...by an artiface or false statement of fact or law...” By making the arguments Plaintiff made, it mislead the court as to the state of the law in this area. Given the chutzpah with which the City Attorney has filed and prosecuted this case, the mis-direction given to the court in its brief and the blatantly wrong statements made to the court, Plaintiff’s suggestion that sanctions under Section 128.6 should



be assessed does not even warrant a response.4

4

Defendant will point out that Plaintiff’s representation to the Court that defense counsel failed to respond to the request to withdraw the motion is also incorrect. Filed with this Reply brief as an exhibit to the Rosenstein declaration are copies of the correspondence on that issue.

IV. CONCLUSION

Based upon Government Code Sections 995 and 996.4, now that Ms. Means has established that the City Attorney has no case, it is clear that Ms. Means is entitled to reimbursement of and an award of attorneys’ fees, costs and expenses incurred as a result of the City Attorney’s ill-begotten suit against her. Defendant therefore requests an award of attorneys’ fees in the amount of $252,850.00 and non-statutory costs in the amount of $5,893.19.5

5

A memorandum of costs has been filed requesting an order for statutory costs from Plaintiff.

Dated: Oct 19, 2007 Respectfully submitted, ROSENSTEIN, WILSON & DEAN, P.L.C. By: <<signature>> Paula S. Rosenstein, Esq. Attorneys for Defendant Tracy L. Means

End of Document




Filings (17)

















2007 WL 5879530














2007 WL 5425528




















Direct History (1)












Order Reversed by





Title Court Date








Defendant Tracy L. Means’ Memorandum of Points and Authorities in Support of Motion and Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; ABS Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County





No. GIC 858344. June 18, 2007.

Defendant Tracy L. Means’ Memorandum of Points and Authorities in Support of Motion and Motion for Summary Judgment or Summary Adjudication of Issues

Paula S. Rosenstein, Esq. (SBN 12624), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, CA 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.


I/C/J: Hon. Joan M. Lewis Dept.: 65 Date: August 3, 2007 Time: 8:30 a.m. Complaint Field: December 13, 2005 Trial Date: September 7, 2007 Tentative Ruling Available 8/2/07 at 4:00 p.m. at (619) 531-3690 or www.sdcourt.ca.gov

TABLE OF CONTENTS

I. Introduction ......................................................................................................................................................................................

2

II. Statement of Facts ........................................................................................................................................................................

3

II(a). Tracy Means’ Background ...................................................................................................................................................

3

II(b). Means Becomes an Employee of the City of San Diego ...........................................................................................

3

II(c). The Airports Division ............................................................................................................................................................

5

II(d). City Operations ........................................................................................................................................................................

5

II(e). Airport Business Solutions, Inc., Et Al ............................................................................................................................ 6



II(f). The Evidence Fails to Support Plaintiffs Positions ......................................................................................................

8

III. Summary Judgment is Appropriate in Accordance With C.C.P. § 437c .................................................................

10

IV. Plaintiff Has Unclean Hands and is Barred From Bringing This Suit ......................................................................

10

V. Tracy Means Is Immune From Plaintiffs Suit ....................................................................................................................

13

VI. Plaintiffs Negligence and Fraud Causes of Action Fail .................................................................................................

14

VI(a). Negligent Misrepresentation Cause of Action is Barred by Govt. C. § 822.2 .................................................

14

VI(b). Intentional Misrepresentation Cause of Action is Barred by Govt. C. § 822.2 ...............................................

14

VI(c). Plaintiff’s 11th Cause of Action for Fraudulent Concealment of Material Facts is Also Barred ................

16

VI(d). Summary ..................................................................................................................................................................................

16

VII. Means Cannot Be Liable Under Business and Professions Code § 17200 ...........................................................

16

VIII. Means Was Acting Within the Course and Scope of Her Employment ...............................................................

17

IX. The False Claims Causes of Action Are Meritless ..........................................................................................................

19

IX(a). Plaintiff Has No Evidence To Support the “Knowingly” Element ......................................................................

20

IX(b). Plaintiffs Conspiracy Cause of Action Fails ................................................................................................................

22

IX(c). Summary ..................................................................................................................................................................................

24

X. Means Is Not a Proper Defendant for the Section 108 Violation Allegations .........................................................

24

XI. Conclusion .....................................................................................................................................................................................

26

TABLE OF AUTHORITIES

Business and Professions Code § 17200 ................................................

2, 16, 17, 18

Business and Professions Code § 17201 ................................................

17

Civil Code § 1571 ...........................................................................................

14

Civil Code § 1572 ...........................................................................................

14, 15

Civil Code § 1710 ...........................................................................................

14, 15

Code of Civil Procedure § 437c ................................................................

10

Code of Civil Procedure § 437c(a) ...........................................................

10

Code of Civil Procedure § 437c(f)(1) ......................................................

10



Government Code § 810 ...............................................................................

18

Government Code § 815.2 ...........................................................................

13

Government Code § 818.8 ...........................................................................

13

Government Code § 820.2 ...........................................................................

13

Government Code § 822.2 ...........................................................................

13, 14, 15, 16

Government Code Section 12650 ..............................................................

14

Government Code § 12650(b)(2) ..............................................................

14

Government Code § 12651(a)(1) ..............................................................

20


20


23

Government Code §40600 ...........................................................................

24

Government Code §40800 ...........................................................................

24

Government Code §41000 ...........................................................................

24

Government Code §41200 ...........................................................................

24

Government Code §41400 ...........................................................................

24

Government Code §41607 ...........................................................................

25

Government Code §41800 ...........................................................................

25

San Diego City Charter § 108 ....................................................................

2, 24, 25, 26, 27

31 USC §3729(a)(1)-(3) ...............................................................................

21, 23

TABLE OF CASES

Albert v. Southern California Transp. Co. (1994) 30 Cal App 4th /529 ......................................................................................................................

10

Applied Equipment Corp. v. Litton v. Saudi Arabia Ltd. (1994) 7 Cal 4th 510 ..........................................................................................................

23

Blusal Meats. Inc. United States (S.D.N.Y. 1986) 638 F. Supp 824 .........................................................................................................................

21

Chavers v. Gatke Corp. (2003) 107 Cal App 4th 606 .........................

23

Clark Equipment Company v. Wheat (1979) 92 Cal App 3d 503 ....

18

Coulter v. Pool (1921) 187 Cal. 181 .......................................................... 25



County of Kern v. Sparks (2007) 149 Cal. App. 4th 11 ......................

14, 21, 22

Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal 4th 1003 .......................................................................................................

18

Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675 ....................................................

11

Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal App 3d 653 .........................................................................................................

10

Janis v. California State Lottery Commission (1998) 68 Cal App 4th 824 ..................................................................................................................

17

Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal. App. 4th, 970 ......................................................................................................

11

Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal 4th 291 ..........................................................................................................

18

Mason v. City of Los Angeles (1933) 130 Cal. App. 224....................

25

Masters v. San Bernardino County Employees Retirement Association (1995) 32 Cal App 4th 30 ......................................................

3, 14, 15, 16

Moreheart v. County of Santa Barbara (1994) 7 Cal 4th /725 .........

15

Neal v. Gatlin (1973) 35 Cal App 30, 871 .............................................

18

Rodgers v. Kemper Construction Co. (1975) 50 Cal App 3d 608 ...

18

Salsbury v. City of Berkeley, 188 Fed Appx. 613 (2006, U.S. App., Lexus 16863) .......................................................................................

17

Schonfeld v. City of Vallejo (1975) 50 Cal App 3d 401 ......................

15, 16

Stone v. Regents of the University of California (1999) 77 Cal App 4th 736 ........................................................................................................

18

Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198 .....

17

Unilogic Inc. v. Burroughs Corporation (1992) 10 Cal. App. 4th 612 .......................................................................................................................

11

U.S. ex rel Durcholz v. KFW. Inc. (7th Cir. 1999) 189 F. 3d 542 .....

23

United States v. Krizek (D. C. Cir. 1997) 111 F. 3d 934 ....................

21

United States v. Jewell, (9th Cir. 1976) (en bane) 532 F. 2d 697 ......

21

Unruh v. Truck Insurance Exchange (1972) 7 Cal App 3d 616 .......

23

Wang v. FMC Corp. (9th Cir. 1992) 975 F.2d 1412 .............................. 24



White v. City of Alameda (1899) 124 Cal. 95 .........................................

25

Defendant Tracy L. Means hereby submits the following Memorandum of Points and Authorities in Support of Her Motion for Summary Judgment, or in the Alternative, Summary Adjudication Against the City of San Diego and the People of the State of California as the claims brought against her in the Fourth Amended Complaint have no merit.

I. INTRODUCTION Plaintiff City of San Diego filed a Complaint against Defendant Tracy L. Means on December 13, 2005 which makes a number of allegations against her, but for which Plaintiff has no support. Plaintiff now, after filing a Fourth Amended Complaint, has eight causes of action against Ms. Means. These causes of action are for intentional (first) and negligent (second) misrepresentation of fact, violations of the Unfair Competition Act (fifth), false claim presentation for payment (sixth), false record or statement to get a false claim paid or approved (seventh), conspiracy to defraud a public entity by false claims (eighth), fraudulent concealment of material facts (eleventh) and statutory liability under San Diego City Charter Section 108 (twelfth). The City alleges that Tracy Means knew and understood all of the City processes and procedures for using consultants, but, because the principals of Co-Defendants Airport Business Solutions, Inc., Michael Hodges and Roberta Thompson, were such good friends of hers, she intentionally, with bad motives and ill-will failed to follow the City procedures regarding the hiring of consultants.1 Ms. Means strenuously denies these allegations. 1

Defendants Michael Hodges; Roberta Thompson; Airport Business Solutions, Inc.; ABS Aviation Consultancy, d/b/a AirportBusiness Solutions and Thompson Aviation Consulting, Inc. shall hereinafter be referred to collectively as the “ABS Defendants”.

Plaintiff also alleges that the work performed for Plaintiff by the Co-Defendants (hereinafter “ABS Defendants”) was of poor quality, negligent, wrongful, improper and unworkmanlike and, most importantly, that Ms. Means knew this about the poor quality of the ABS Defendants’ work product but intentionally concealed this fact from Plaintiff. Again, Ms. Means denies these allegations. Plaintiff also alleges, as it must, that all of Ms. Means’ actions with respect to the ABS Defendants were to intentionally deceive, vex, annoy or harm the City in its business. Plaintiff must make these allegations because otherwise it would have no case against Ms. Means. Moreover, all of her actions were taken within the course and scope of her employment. Plaintiff has provided absolutely no evidence to support any of its positions. In sum, this is a frivolous, baseless lawsuit for which the granting of summary judgment, or, in the alternative, summary adjudication of the causes of action, must issue.

II. STATEMENT OF FACTS

A. Tracy Means’ Background:

Defendant Tracy Means became involved in airport management about a year after her honorable discharge from active duty in the U.S. Air Force. (Undisputed Fact 1, hereinafter “UF”) Ms. Means began as an Airport Administrative Intern in March, 1989 for the Contra Costa County Airports. (UF 2) She then became an employee of the Contra Costa County Airports in January, 1991, serving as the Airport Community Relations and



Noise Control Officer. (UF 3) In 1992, she was promoted to the position of Assistant Manager of Airports for Buchanan Field Airport and Byron Airport in Contra Costa County, California, still with the Contra Costa County Airports. (UF 3-5) She remained in that position until April, 1997. (UF 5) As the Assistant Manager of Airports, Ms. Means was primarily responsible for the supervision of the day-to-day personnel, safety, maintenance and administrative aspects of airport operations. (UF 6) Among many other duties, Ms. Means supervised the inspection and patrolling of airport grounds to ensure proper physical maintenance and to identify violations to the County Airport Ordinance, lease agreements, F.A.A. regulations, or uniform minimum standards for commercial aeronautical activities. (UF 7) In April 1997, after a national search by the City of San Diego, Ms. Means was offered and accepted the position of a Deputy Director for the City and was in charge of the City’s airports, i.e., Montgomery and Brown Fields. (UF 8) She remained in this position until November, 2005. (UF 9) As Airports Director, among many other responsibilities, Ms. Means was responsible for managing, directing, long-range planning and coordinating all activities of the Airports Division under the Real Estate Assets Department. (UF 11) In addition, while pursuing her career in airport management, Ms. Means earned a Bachelor of Science degree in Professional Aeronautics and a Masters of Aeronautical Science from Embry-Riddle Aeronautical University. (UF 10)

B. Means Becomes an Employee of the City of San Diego:

When Tracy Means was hired by the City of San Diego as the Deputy Director in charge of the Airports Division in April, 1997, the division was in the Real Estate Assets Department. (UF 12) Her initial supervisor was Robert Collins, then the Director of the Real Estate Assets Department. (UF 13) He was later replaced early in her tenure by William T. Griffith, who transferred into the Director position from the City Attorney’s Office where he was a practicing Deputy City Attorney. (UF 14) At no time did Ms. Means receive any formal training regarding City procedures, rules or regulations. (UF 15) All knowledge that she obtained came from performing her job duties, learning from subordinates and instructions from her superiors. (UF 16) Mr. Griffith did not provide any instruction to Ms. Means regarding City procedures, rules or regulations. (UF 17) All the knowledge which he had came from specific training given to Deputy City Attorneys when they are hired by the City Attorney’s Office. (UF 18) When he transferred to the Real Estate Assets Department, he did not impart this knowledge regarding City procedures, rules and regulations to his subordinates, including Ms. Means. (UF 19) Ms. Means received excellent evaluations during each year of her employment with the City of San Diego. (UF 20) In none of them was she criticized for her use or even alleged misuse of any City procedures, rules or regulations. (UF 21) In fact, in her performance evaluation covering the period of January 1, 1999 through June 30, 2000, Mr. Griffith specifically stated: “Tracy has learned the ‘City system’ the hard way, like most of us. She has developed an excellent working relationship with Council and staff. One area she needs to be more sensitive to is when airports’ priorities may not be consistent with those of the Manager, the Council or both. This is reflective of true loyalty, but sometimes there are multiple interests at stake”. (UF 22) Mr. Griffith, in this same evaluation, gave her a superior rating for integrity and commented that “Tracy has consistently delivered what she said she would. The only area of improvement would be similar to the comments above and distinguishing between personal and division’s priorities and those of the City as a whole”. (UF 23) Mr. Griffith’s comments in this evaluation continue in this extremely positive vein throughout. (UF 24) His comments are similarly high in each of the other evaluations he prepared for Ms. Means while he was her supervisor. (UF 25) At all times referenced in this litigation, i.e., between 2000 and November, 2005, Ms. Means was an employee of the City of San Diego. (UF 26) All of the work done by the ABS Defendants as reflected by the invoices attached as Exhibits to Plaintiff’s Fourth Amended Complaint and referenced in the Complaint itself are for work performed by the ABS Defendants on behalf of the City of San Diego. (UF 27) Nowhere in the Fourth Amended Complaint are there any allegations that Ms. Means has personally or financially benefitted from the work performed by the ABS Defendants for Plaintiff City of San



Diego. (UF 28) Moreover, Plaintiff has not provided, through the discovery process, any evidence of any personal or financial benefit to Ms. Means as a result of the work performed by the ABS Defendants for City of San Diego. (UF 29)

C. The Airports Division:

The City of San Diego has two general aviation airports which it operates - Montgomery Field in Kearny Mesa and Brown Field in the Otay Mesa area. They are run by the Airports Division, which is an enterprise fund. (UF 30) This means that it is not funded by money from the City’s general fund, but rather is funded by grants, user fees, rents and other miscellaneous income coming directly from the airports themselves. (UF 31-32) It is required by law that all revenue brought into the Airports Division be spent within the Airports Division and it cannot be redirected to the general fund for any other purposes. (UF 33) During the time that Ms. Means was the Director for the Airports Division, the financial soundness of the Division improved dramatically. (UF 34) In fact, in Ms. Means’ evaluation covering the period of January 1, 1999 through June 30, 2000, one of her stated objectives assigned to her by her supervisor, Mr. Griffith, stated that she was to “maintain fund balance of $300,000.00”. (UF 35) The year-end comments stated that the “fund bal. is < $2m. Tracy has implemented an aggressive campaign to enforce all leases and collect back rents, as well as raise rates”. (UF 36) She was given a “superior” in this category. (UF 37)

D. City Operations:

The City has many departments which are supposed to help provide checks and balances regarding the spending of public money. (UF 38) These departments include the Purchasing, Audit, Comptroller and Personnel Departments. (UF 39) Employees at the City who deal with financial issues rely upon these departments to let them know if and when there is a problem. (UF 40) All of the Airports Division purchases go through the Purchasing Department. (UF 41) The Airports Division is audited annually. (UF 42) The Comptroller or Treasury Department issues checks to pay vendors after performing its checks and balance responsibilities. (UF 43) The Airports Division employees rely in particular upon the Purchasing Department. (UF 44) The Purchasing Department, however, makes its own rules but it does not tell other employees of the City what they are. (UF 45) No one ever told Tracy Means that she was doing anything wrong regarding the hiring or use of vendors, including consultants. (UF 48) Nobody ever told anybody in the Airports Division that they were doing anything wrong with regard to the hiring or use of vendors, including consultants. (UF 49) Directors are told when processes have not been done correctly and they need to go back to complete an additional step or re-do a step they already completed. (UF 50) While Ms. Means was employed with the City, the airports’ budget was prepared by the Airports Division, including Ms. Means, which she then sent to her superior, who approved it, and it was then submitted to the City Manager’s Office and, ultimately, the City Council for approval. (UF 51) The ABS Defendants were on an approved list of vendors, also known as an “Open Purchase Order” list, which Ms. Means referred to when a vendor need arose. (UF 52, 55) The vendor list was a list which was prepared by the Financial Management Division of the City and provided to the Airports Division. (UF 53) This list is reviewed and approved by the City Manager on an annual basis. (UF 54) Plaintiff is trying to hold Ms. Means responsible for not following certain rules, but the City Charter, Municipal Code and administrative regulations conflict with each other regarding the hiring and use of consultants. (UF 57) The confusion regarding these conflicts is reflected in the fact that Plaintiff has amended its Complaint and deleted certain allegations against Ms. Means because the allegations made conflicted with the duties Plaintiff was alleging she had under the administrative regulations and/or the City Charter. (UF 57)

E. Airport Business Solutions, Inc., Et Al.:



Airport Business Solutions, Inc. is a consultant on airport issues, particularly relating to airport leasing issues. (UF 58-59) Defendants Michael Hodges and Roberta Thompson are principals in that consultancy firm. (UF 60) Tracy Means is not good friends with either Michael Hodges or Roberta Thompson. (UF 61) Rather, they are professional colleagues. (UF 62) The ABS Defendants did work for the City of San Diego before the Sole Source Memo prepared in August, 2000 at the request of people other than Ms. Means. (UF 67) Various City personnel were present at many meetings with personnel from ABS. (UF 68) City personnel included members of the City Manager’s Office, people from the other parts of the Real Estate Assets Department, and other departments altogether. (UF 68) The work performed by the ABS Defendants was not performed in secret, done secretively or in any way hidden from the City’s systems. (UF 69) In fact, Ms. Means’ superior, William T. Griffith, was involved in at least nine meetings with Hodges and/or Thompson. (UF 70) The procedures followed when the ABS Defendants were asked to perform work for Plaintiff were the same procedures followed by the Airports Division with respect to the use of other vendors. (UF 71) The ABS Defendants were asked, among other things, to identify development opportunities for the airports which would comply with FAA requirements and be beneficial to the City. This could mean ending the leases of some of the businesses which had been present on the airport properties, as well as creating a development plan for the future of the airports. (UF 72) Nobody ever complained to the ABS Defendants about their work quality prior to the last quarter of 2005 when the issue arose during the City’s “Fact Finding” investigation. (UF 73) Nobody ever complained to Ms. Means that they were dissatisfied with the quality of work being performed by the ABS Defendants for Plaintiff. (UF 74) The Sole Source Memo prepared in August, 2000 was prepared based upon the instructions which Ms. Means received from Linda Baldwin, the head of the Purchasing Division for the City of San Diego. (UF 75) The Sole Source Memo was approved by the Purchasing Department, thus indicating it met the requirements for using a sole source process. (UF 77) One of the documents produced by Plaintiff is entitled “Summary of Invoices and Payments to Airport Business Solutions”. (UF 78) It reflects invoices paid to ABS. (UF 79) It shows that ABS was paid when Ms. Means “signed/approved” the invoice. (UF 80) It also shows that ABS was paid when Regina Seaton, an Administrative Aide, “signed/approved” the invoice. (UF 81) It also shows that ABS was paid when no one “signed/approved” the invoice. (UF 82) None of the documents produced, testimony given or interrogatory responses provided include admissible evidence that: a. Ms. Means knew or believed that she was failing to follow City procedures, assuming she did; b. the ABS Defendants’ work was negligent or of poor quality, assuming it was; or c. Ms. Means intentionally overlooked or concealed anything regarding the ABS Defendants’ work. (UF 83, 87-88)

F. The Evidence Fails To Support Plaintiff’s Positions

So far in this case, Plaintiff has responded to five rounds of written discovery and produced witnesses for depositions who were supposedly the most knowledgeable on the fraud-related causes of action against Ms. Means and the quality of the work performed by the ABS Defendants. Additionally, depositions of current and former city employees have been taken and the partial deposition of the chair of the Airport Advisory Committee has been taken. The evidence produced to date, rather than supporting Plaintiff’s positions have undermined them and supported Defendants’ positions. For instance, Daro Quiring, the head of the fact-finding investigation regarding these affairs testified: 1. Purchasing makes sure that all the T’s are crossed and I’s dotted from state and city charter and other administrative regulations. It is responsible for ensuring all legal guidelines are followed. (UF 40) 2. Purchasing would let him know if he did something wrong. (UF 50)



3. During the course of the fact-finding, nobody told him that they raised concerns or complaints about ABS’ work product with Means or ABS. (UF 73-74) At least as incredible is the testimony of Patrick Kelleher, the person Plaintiff produced as having the most knowledge regarding the fraud-related causes of action against Ms. Means. Not only did he testify that he had no facts to support the allegations against her, but he also testified as to the internal practices of the Purchasing Division which were known only to the purchasing division employees and were in direct contradiction to the rules Plaintiff is now trying to hold Ms. Means responsible for violating. Specifically, Mr. Kelleher testified that despite the fact that the Charter requires that Department Directors can only approve items up to $25,000 and then only with written delegation from the City Manager, the Purchasing Department unilaterally, internally and without notice to anyone, altered that to approval up to $50,000 and by anyone at or above the Deputy Director level. (UF 45-46, 83) In trying to establish a close relationship between Ms. Means and the ABS Defendants, Plaintiff subpoened Ms. Means’ personal phone records presumably to prove frequent phone calls between her and the ABS Defendants. Rather than demonstrating a connection between the parties, they demonstrated the opposite. During the almost two-year period covered by the phone records before Ms. Means left the City, there were no phone calls between Ms. Means and any of the phone numbers identified in the subpoena prior to her departure from her employment with the City. (UF 63) Further, among the documents Plaintiff produced were William Griffith’s calendars. He was Ms. Means’ superior during most of the time she was a City employee. They show that he was involved with meetings with the ABS Defendants on at least nine (9) occasions. (UF 64, 70) Interestingly, Griffith’s calendars for the critical year of 2000 were not produced and are allegedly missing. (UF 65) In addition, Lucille Galvin, an employee in the Real Estate Assets Division, testified that she attended a meeting with Ms. Means, several members of the City Manager’s staff and Hodges during which Brown Field activities and development were being discussed. (UF 66) Ms. Means’ was clearly not hiding her actions or ABS’ involvement with the City from the City’s senior managers. Regarding the sole source memorandum which supposedly violated the City’s rules, Ms. Means did as she was instructed to do by Linda Baldwin, the head of the purchasing division. (UF 75) Ms. Baldwin then approved the request. (UF 77) If the request was inappropriate, did not meet City criteria, needed approval from someone else or was in any way insufficient, it should not have been approved. (UF 76 ) This investigation was initiated by Buzz Fink, chair of the Airports Advisory Committee. (UF 84) Yet, Mr. Fink has no facts to support allegations of illegality. (UF 85) Moreover, Ms. Means was required to hire people to get work done. (UF 86) The Division had an Open Purchase Order list of approved vendors with dollar amounts for which they were pre-approved. (UF 52) ABS was on this list. (UF 52) The list was prepared by the Finance Department. (UF 53) Ms. Means did not treat ABS any differently than she treated any other vendor. (UF 56). Ms. Means had no special relationship with ABS or any of its principals. (UF 60) Ms. Means followed the rules she was taught and the directions of her supervisors. (UF 47)

III. SUMMARY JUDGMENT IS APPROPRIATE IN ACCORDANCE WITH C.C.P. § 437c.

A party may move for summary judgment if it contends that the action has no merit. C.C.P. § 437c(a). Alternatively, a party may move for summary adjudication as to one or more causes of action within an action, one or more claims for damages or one or more issues of duty if that party contends that the cause of action has no merit. C.C.P. § 437c(f)(1). To secure a summary judgment, Defendant may prove an affirmative defense, disprove at least one essential element of each of Plaintiff’s causes of action (Albert v. Southern California Transp. Co. (1994) 30 Cal App 4th 529), or show that an element of the cause of action cannot be established (Gribin Von Dyl & Associates, Inc. v. Kovalsky (1986) 185 Cal App 3d 653,



663). In this case, summary judgment, or, at the very least, summary adjudication is appropriate. Plaintiff cannot maintain its action against Ms. Means as Plaintiff cannot present any competent evidence supporting its allegations. Nor can it present any evidence demonstrating the nature and extent of the alleged damages. For the foregoing reasons, Ms. Means is entitled to judgment as a matter of law in accordance with C.C.P. 437c.

IV. PLAINTIFF HAS UNCLEAN HANDS AND IS BARRED FROM BRINGING THIS SUIT

Plaintiff has sued Ms. Means for actions allegedly taken over a five year period. All of the alleged actions were taken with the knowledge, consent, approval and, in some cases, involvement, of her superiors, staff of other City departments and City Council members. Throughout this time, Ms. Means received no comments, criticism or training regarding the actions she took which supposedly violate the law. Plaintiff, in fact, condoned her actions, failed in its responsibilities to its employees, and approved of her actions at the time. Plaintiff has unclean hands which should bar it from proceeding further with this litigation. In order to pursue a case such as this, the plaintiff must come to court with clean hands as the equitable defense of unclean hands is available in this California as a defense to an action whether it is legal or equitable in nature. The distinction which existed under the common law between actions at law and suits in equity have been abolished. Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal. App.2d 675, 728. In order to apply the clean hands doctrine, the misconduct asserted in an unclean hands defense must be sufficiently related to the matter currently before the court., It must relate to the subject matter involved and effect the equitable relations between the parties. Unilogic Inc. v. Burroughs Corporation (1992) 10 Cal. App. 4th 612, 620 (citations omitted). However, this criteria must not be read too narrowly. Any evidence of a plaintiffs unclean hands in relation to the transaction before the court should be available to enable the court to effect a fair result in the litigation. Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal. App. 4th, 970, 985. In the instance case, Plaintiff alleges that Ms. Means failed to follow the rules, regulations and procedures of the City. But the evidence is uncontradicted that the City never gave or offered any training regarding the rules, regulations and procedures they now accuse her of violating. The evidence is that City staff, including those in the Airports Division, relied upon various financial departments of the City to make sure that all of the T’s were being crossed and the I’s dotted. The City utterly failed in its oversight role and is now attempting to hold Ms. Means accountable for its failure. The evidence shows that the City’s regulations, Municipal Code and Charter provide for a check and balance system. The City Manager has the authority to award contracts up to $250,000 without going before the City Council.2 Contracts less than $25,000 could be awarded by Department Directors. They could not delegate that authority - only the City Manager could and that had to be in writing. Plaintiff has yet to produce any evidence of delegation even though tasks have been delegated for years. Nonetheless, assuming what the City alleges to be true, and we do not concede that it is, even if Ms. Means did sign off on the purchase orders in violation of some rule or regulation, they should never have been paid without either the Department Director’s or the City Manager’s approval because under Plaintiff’s theory, she did not have any authority to direct any payments to anyone. 2

All of the alleged actions took place prior to the implementation of the strong mayor form of government and therefore those rules and systems apply here. See Request for Judicial Notice Exhibits A, B and C.

The Purchasing Agent is charged with making sure systems have been followed before directing payments to be issued. Yet, the Purchasing authorized the payments - over a six year period - without the Department Director approving the payments or ascertaining that certain authority had been delegated to Ms. Means, a Deputy Director, in writing and by the City Manager. At no time did anyone ever tell Ms. Means that she was not following the correct procedure in accomplishing the work she was charged to perform, i.e. running the Airports Division in a sound, business-like, financially successful manner.3 At no time did anyone ever tell her that any of the documents needed to be signed off by her department director before they could



be paid. At no time was she told that the documentation submitted was insufficient. 3

Interestingly, the evidence also shows that the Purchasing Agent paid invoices that were approved by no one and others which were approved by an Administrative Aide.

The evidence further shows, or rather fails to show, that Ms. Means, at any time, received any training, formal or informal, on the proper procedures for choosing vendors, including consultants to work on Airports issues. Moreover, the evidence also shows that she received “superior” and “outstanding” marks in nearly every single category on her performance evaluations from Will Griffith, former Director of the Real Estate Assets Department. Ms. Means relied on Plaintiff’s conduct and expected to be notified, as apparently other department heads were, when she or her staff failed to follow a procedure properly. Ms. Means relied on the vendor list provided by the City’s Financial Management Department. Ms. Means relied upon conduct of the Purchasing Department and other departments in their decision to issue purchase orders and to pay vendors, including the ABS Defendants based on her signature, that of the Airports administrative aide and even when no one had signed off on a request. Plaintiff argues that Ms. Means failed in the performance of her duties when every indication she received was that she was performing them appropriately, accurately and as she was supposed to do. All of her actions were taken out in the open with the involvement of her superiors and through proper channels. To come back six years after the fact with no evidence of intentional wrongdoing is unconscionable. Plaintiff is trying to blame a broken system on one mid-level employee. Plaintiff comes to this court seeking damages but it has unclean hands and it is prohibited from benefitting from its own wrongful conduct. The suit is barred.

V. TRACY MEANS IS IMMUNE FROM PLAINTIFF’S SUIT.

Plaintiff is trying to attach liability to Tracy Means for actions taken by her in the course and scope of her employment. That being the case, she is immune from liability and Plaintiff’s suit must fail. Based upon the Government Code, Ms. Means is immune from any liability, under both general statutes and specific statutes. In particular, she is immune from liability for the actions she supposedly took as alleged by Plaintiff based upon Government Code §§ 815.2, 818.8, 820.2 and 822.2. Government Code § 815.2 states, in pertinent part: “... A public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability”. Government Code § 818.8 states, in pertinent part, that “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such representation be negligent or intentional”. Government Code § 820.2 states, in pertinent part, that “... A public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused”. Government Code § 822.2 states that, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption, or actual malice”. Taken together, these code sections are very clear. Ms. Means cannot be liable under the legal theories put forward by Plaintiff in this lawsuit. These immunities are absolute with the narrow exception of a finding that she is liable because of actual fraud, corruption, or actual malice. Plaintiff has not put forward any evidence, competent or otherwise, that would support a finding of actual fraud, corruption or actual malice as that is defined in case law. While not sufficient in and of itself, in order to find actual fraud, corruption or actual malice, causes of action which are not



even plead against Ms. Means, a jury would have to find that Ms. Means was acting outside the course and scope of her employment. Plaintiff would bear the burden of proving that she was not and such a hurdle is, indeed, very high. Since Plaintiff has no evidence of actual fraud, corruption or actual malice, the statutory immunities provided to Ms. Means in her position as an employee of the City of San Diego bar any findings of liability against her. As such, summary judgment should be granted in her favor.

VI. PLAINTIFF’S NEGLIGENCE AND FRAUD CAUSES OF ACTION FAIL.

Plaintiff has alleged causes of action against Ms. Means for negligent misrepresentation of fact (Second Cause of Action), intentional misrepresentation of fact (First Cause of Action) and fraudulent concealment of material facts (Eleventh Cause of Action). The statutory immunities completely bar any finding of liability against Ms. Means under any of these three legal theories. A. Negligent Misrepresentation Cause of Action is Barred by Govt. C. §822.2 Government Code § 822.2 expressly provides that a public employee is immune from negligent misrepresentation. Plaintiffs Second Cause of Action for negligent misrepresentation is clearly within this immunity and cannot stand. Masters v. San Bernardino County Employees Retirement Association (1995) 32 Cal App 4th 30, 41-42. See also County of Kern v. Sparks (2007) 149 Cal. App. 4th 11, 13-14. There is nothing about Plaintiff’s Second Cause of Action for Negligent Misrepresentation of Fact that avoids this statutory immunity. B. Intentional Misrepresentation Cause of Action is Barred by Govt. C. §822.2 Government Code § 822.2 likewise bars Plaintiffs First Cause of Action for intentional misrepresentation of fact as it provides a specific immunity for Ms. Means as to Plaintiffs First Cause of Action. This immunity applies unless the employee is guilty of actual fraud, corruption, or actual malice. The question, therefore, is whether Plaintiffs First Cause of Action as alleged amounts to the kind of “actual fraud, corruption or actual malice” for which liability may be imposed. The first question is whether the “actual fraud” referenced in Government Code § 822.2 is the same “actual fraud” contained in Civil Code §§ 1571, 1572, 1709 and 1710. The court in Masters, supra, directly analyzed this issue, albeit in that case, the cause of action plead was “promissory fraud” rather than “intentional misrepresentation of fact”, as is alleged here. As it relates to the court’s analysis, however, this is a distinction without a difference. After reviewing the various elements identified in Civil Code § 1572, which defines actual fraud in contract situations and Civil Code § 1710, which talks about fraud within the tort context, the court concluded that the term “actual fraud” in Government Code § 822.2 is different from and not co-existent with the meaning of “actual fraud” in Civil Code §§ 1572 or 1710. As the court in Masters said, if it was to interpret these terms the same: “Government Code § 822.2 would be unintelligible. Inasmuch as both intentional and negligent misrepresentations are encompassed within the definition of ‘actual fraud’ pursuant to Civil Code §§ 1710(1) and (2) and 1572(1) and (2), the statute would read, in essence, “A public employee is not liable for his intentional or negligent misrepresentation unless he is guilty of intentional or negligent misrepresentation”. Such an interpretation would render the entire statute meaningless and the Legislative purpose would clearly be defeated.” Masters, supra at 42. After completing this analysis, the Masters court held that, “In order to support a cause of action for misrepresentation against the public employees, Applicant must allege, in addition to the ordinary elements of common law deceit, motivation by corruption or actual malice”. Id. The Masters court relied heavily in its analysis on the decision in Schonfeld v. City of Vallejo (1975) 50 Cal App 3d 401, overruled on another point in Moreheart v. County of Santa Barbara (1994) 7 Cal 4th 725,743. The Schonfeld court was even more specific than the Masters court. It held that “the immunity afforded by Government Code § 822.2 applies unless, in addition to the essentials of common law deceit, a public employee is motivated by corruption or actual malice, i.e., a



conscious intent to deceive, vex, annoy or harm the injured party”. Id. at 409-410. Despite the significant amounts of discovery exchanged during this litigation, Plaintiff has provided no evidence whatsoever of any motivation which it ascribes to Ms. Means, let alone anything which would suggest a “conscious intent to deceive, vex, annoy or harm” Plaintiff. It has not provided any such evidence because there is no such evidence. There are no email, phone records or witnesses with facts to suggest, let alone support, such allegations. Ms. Means always performed her job with the goal of benefitting the City of San Diego, the airports and the airport users. At no time did she make decisions relating to the use or non-use of Airport Business Solutions for her own purposes or to vex, annoy, harm or deceive Plaintiff. This cause of action is barred.

C. Plaintiff’s 11th Cause of Action for Fraudulent Concealment of Material Facts is Also Barred

Plaintiffs Eleventh Cause of Action for Fraudulent Concealment of Material Facts is really just another way of saying “Intentional Misrepresentation”. This linguistic sleight of hand, however, will not prevent this cause of action from being barred by Govt. C. §822.2 just like Plaintiffs First and Second Causes of Action. Just as the Masters court held with respect to a cause of action for promissory fraud that there was no difference, so too is the re-titling of the cause of action of no import. The holdings reached in Masters, supra, and Schonfeld, supra, are just as applicable to this cause of action. To reiterate, “In order to support a cause of action for misrepresentation against the public employees, Applicant must allege, in addition to the ordinary elements of common law deceit, motivation by corruption or actual malice”. Masters, at 42. Further, “the immunity afforded by Government Code § 822.2 applies unless, in addition to the essentials of common law deceit, a public employee is motivated by corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or harm the injured party”. Schonfeld. at 409-410. It was not until the fifth version of the complaint that Plaintiff even made any allegations of this nature against Ms. Means. This late addition still fails since Plaintiff has produced nothing in discovery to support the allegations.

D. Summary

Because Plaintiff cannot meet the very difficult burden enunciated by the case law in this area, Ms. Means is immune and/or an element of each of these causes of action is missing. Summary adjudication of these causes of action in favor of Ms. Means is appropriate.

VII. MEANS CANNOT BE LIABLE UNDER BUSINESS AND PROFESSIONS CODE § 17200 Plaintiffs Fifth Cause of Action against Tracy Means is for violations of California’s Unfair Competition Act, found at California Business and Professions Code § 17200, et seq.4 Ms. Means, however, cannot be held liable under these code sections. 4

Plaintiff City, in its last amendment of the complaint, added the People of the State of California as a Plaintiff for this cause of action only. Plaintiff’s addition does nothing to assist in the preservation of this cause of action.

Governmental entities are not businesses for purposes of B&PC § 17200. Plaintiff has alleged no facts that Ms. Means, who at all times was acting in her capacity as Plaintiffs employee, falls into the required definition of “business”. B&PC § 17200. Nor can the conduct over which Plaintiff attempts to assert this statute be properly called a business practice. Salsbury v. City of Berkeley, 188 Fed Appx. 613 (2006, U.S. App., Lexus 16863). The Unfair Practices Act applies to specific “persons”. This term is defined in B&PC § 17201 as “all natural persons, corporations, firms, partnerships, joint stock companies, associations and other organizations of persons”. Government entities such as Plaintiff are not included in this definition of “person”. Janis v. California State Lottery Commission (1998) 68 Cal App 4 th 824, 831 (citations omitted). Under both statutory and case law, government entities are not proper defendants



for alleged violations of the Unfair Business Practices Act. Ms. Means, at all times herein mentioned, was an employee of the City of San Diego and acting in her capacity as an employee of the City of San Diego. There is no basis for treating a government employee differently from the entity itself. Doing so would crate a huge hole in the public policy behind the Legislature’s decision not to include governments in its definition of “persons”. In addition, Ms. Means is protected by governmental immunity. The general rule of governmental immunity prevails over the assertion that public entities can be liable under Unfair Competition Act (UCA), as there is no provision in the Act imposing governmental liability for violations of the Act. Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198. Because Ms. Means was at all times acting as an agent of the City of San Diego and the City of San Diego could not be sued under the Unfair Business Practice Act, Ms. Means cannot be sued under this Act, either. This cause of action must be summarily adjudicated in her favor.

VIII. MEANS WAS ACTING WITHIN THE COURSE AND SCOPE OF HER EMPLOYMENT

Ms. Means’ was, at all times, acting within the course and scope of her employment in her dealings with the ABS Defendants. As such, she is able to use the protections provided by the various immunity statutes identified infra and she should be treated the same as a government entity for purposes of the Unfair Competition Act. Any argument to the contrary is specious because Plaintiff has no evidence that Ms. Means was ever acting outside the course and scope of her employment. The argument, if presented, is simply a red herring, however, Ms. Means will address it in anticipation of Plaintiffs presentation. Ordinarily, the determination of whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal 4 th 291, 299. Under the law, an employee acts within the course and scope of her employment if she is doing an act which is required or incident to her duties or if it was performed for the benefit of the employer and not to serve her own purposes. Neal v. Gatlin (1973) 35 Cal App 30, 871, 875; Clark Equipment Company v. Wheat (1979) 92 Cal App 3d 503, 520. The employer is liable for the employee’s actions, irrespective of its wrongful nature, assuming, arguendo, it is wrongful. Neal, supra. The California Supreme Court explained that the phrase “scope of employment” has been interpreted broadly in this state under respondeat superior principles. One such principle boils down to this: An employer will be liable for risks of employee conduct that may be fairly regarded as broadly incidental to or typical of the enterprise undertaken by the employer. Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal 4th 11003-1004. The general rule is that an employee generally operates within the scope of employment when engaged in pursuits that are of some benefit to the employer or have become a customary incident of the employment relationship. Rodgers v. Kemper Construction Co. (1975) 50 Cal App 3d 608, 620. In considering the scope of employment under the California Tort Claims Act, the term means the same under the Act as it does in actions against an employer for the torts of his or her employee. The inquiry should be whether the risk was one that may fairly be regarded as typical or broadly incidental to the enterprise undertaken by the employer. It is also appropriate to consider whether the risk was a foreseeable consequence of the business. Stone v. Regents of the University of California (1999) 77 Cal App 4th 736, 746. There is no doubt that Ms. Means was always acting within the course and scope of her employment regarding the allegations in this matter. She was the Director of Airports and it was part of her job to oversee long-range planning for the airports, including the development of business plans, rent studies and uses for the airport land. There is no doubt that the work performed by the ABS Defendants, whether adequate or inadequate, was done for the purpose of developing the airports and making their lands better and more useful for the City of San Diego. Furthermore, it is certainly incidental to running the airports that Ms. Means would engage vendors to perform work on behalf of the City of San Diego relating to airports issues. In fact, it would be typical of what she was supposed to do in the performance of her job duties. There can be no doubt that the City’s use of the ABS Defendants’ services was foreseeable,



reasonable and therefore wholly within the scope of Ms. Means’ duties. In addition, there are no allegations that Ms. Means engaged in any alleged activities so that she could personally benefit, that she did personally benefit or for any reason which would take this matter outside the course and scope of her employment. It would be contrary to public policy to hold an employee personally liable every time a contractor failed to perform and it would also be contrary to the long line of case law defining “course and scope of employment.” Assuming arguendo that the ABS Defendants failed to perform or failed to perform adequately, there is still no evidence that Ms. Means was acting outside the course and scope of her employment. Plaintiff has provided no evidence to support the allegations that Ms. Means was using the services of the ABS Defendants for the purpose of vexing, annoying, or causing harm to Plaintiff. Given the extreme lack of competent evidence, this issue becomes a matter of law which can and should be summarily adjudicated in Ms. Means’ favor.

IX. THE FALSE CLAIMS CAUSES OF ACTION ARE MERITLESS

Plaintiff asserts three causes of action against Ms. Means derived from the California False Claims Act (Government Code Section 12650, et seq.). In the Sixth Cause of Action, Plaintiff asserts a claim for “False Presentation for Payment” under Govt. Code § 12651 (a)(1). The Seventh Cause of Action alleges a claim for “False Record or Statement to Get a False Claim Paid or Approved” under Govt. Code §12651(a)(2). Plaintiffs Eighth Cause of Action asserts a “Conspiracy to Defraud a Public Entity by False Claims” against Ms. Means. All of these causes of action will fail because Plaintiff can not establish one or more elements of the causes of action. For the sole purpose of this motion for summary judgment, Ms. Means will not argue about the issues of whether claims were made, whether claims which were made were false or whether false records or statements were presented. Rather, Ms. Means will focus on the legal issues associated with asserting causes of action under the California False Claims Act. Even with this limited discussion, the causes of action fail and must be summarily adjudicated in favor of Ms. Means.

A. Plaintiff Has No Evidence To Support the “Knowingly” Element

Assuming arguendo that Plaintiff does not have to prove that Ms. Means engaged in presenting, making or using a false claim as we are in this motion, the key element remaining for Plaintiff to establish in order to prevail on either the Sixth or Seventh Causes of action is that Ms. Means “knowingly” made false claims. Government Code § 12651 states, in pertinent part: (a) Any person who commits any of the following acts shall be liable to ... the political subdivision ... (1) Knowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval. (2) Knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the state or by any political subdivision. (Emphasis added). Plaintiff has no evidence to support this allegation. There are three essential elements Plaintiff must establish to prove a violation of either §12651(a)(1) or(2). They are: 1. The person must (1) present, or cause another person to present, a “claim” for payment or approval to the City or (2) make, use, or cause to made or used, a false record or statement to get a false claim paid or approved by the City; 2. The claim must be “false”; and



3. The person must act knowing that the claim is false. Blusal Meats, Inc. United States (S.D.N.Y. 1986) 638 F. Supp 824, 827.5 5

Given the close similarity of the California act to the federal False Claims Act, 31 USC §3729(a)(l)-(3), it is appropriate to turn to federal case law for guidance in interpreting the act. 58 Cal. Jur. 3d §119.

By statute, “ ‘[k]nowing’ and ‘knowingly’ mean that a person, with respect to information, does any of the following: (A) Has actual knowledge of the information. (B) Acts in deliberate ignorance of the truth or falsity of the information. (C) Acts in reckless disregard of the truth or falsity of the information. Proof of specific intent to defraud is not required.” Govt. C. 12650(b)(2). A very recent case is one of the few in California to explore this issue. In County of Kern v. Sparks, (2007) 149 Cal. App. 4th 11, the court explored the issue of whether a reasonable jury could find that Sparks “knowingly” presented false claims to the County. After noting that Sparks had been told not once but twice that he could not give the premium pay that he wanted to his commanders and yet he chose to give it to them anyway, a reasonable jury could conclude that he had acted with reckless disregard of the truth. Sparks, at 12-13. (Sparks is also the only case found involving a government entity suing its own employee.) In addition, the D.C. Circuit has held that the reckless disregard standard is equivalent to “gross negligence-plus.” United States v. Krizek (D. C. Cir. 1997) 111 F. 3d 934, 942. While the reckless disregard standard is used with some frequency in civil false claims act cases, the “deliberate ignorance” standard is very rare. On the other hand, the test of the meaning of “deliberate ignorance” has been addressed in the criminal law context which holds that more than direct evidence of the illegality must be presented in order to give the jury instruction, known as the Jewell instruction because fo the danger of a jury applying a negligence type standard where it should not. United States v. Jewell, (9th Cir. 1976) (en banc) 532 F. 2d 697. Based upon Jewell, the government must present specific evidence that the defendant “(1) actually suspected that he or she might be involved in criminal activity, (2) deliberately avoided taking steps to confirm or deny those suspicions, and (3) did so in order to provide himself or herself with a defense in the event of prosecution” for deliberate ignorance to be at issue. Despite five rounds of written discovery and many depositions, Plaintiff has yet to identify any documents, testimony or witnesses to support their theory that Ms. Means acted knowing that she was doing anything wrong, assuming she was. Contrary to the Sparks case, there is no evidence that she was ever told that she was doing anything wrong, violating any rules or behaving in any manner which would cause a reasonable person to question her actions. To the contrary, the evidence shows her evaluations were stellar. Her Director, Mr. Griffith, never advised her that she was insufficiently familiar with the City’s rules and regulations. The evidence further shows that Purchasing never told her or her staff that they were doing anything incorrectly in their processes for the use and selection of vendors. The evidence also shows that the Auditor and Comptroller never questioned Airports Division expenditures and that Ms. Means was not given any training regarding purchasing, contracting or hiring procedures. (See Request for Judicial Notice Exhibit A.2 for responsibilities of the Auditor and Comptroller.) She most certainly never given any training related to the use of consultants. Further, the evidence demonstrates that ABS was on the approved list of vendors with an approved amount which could be spent in a given year. The evidence shows that they were treated the same as any other vendor. The evidence further shows that the Purchasing Department, which Airports staff and staff throughout the City relied upon to tell them when they were missing a step or not following procedures appropriately, were making up their own rules and procedures. Finally, the evidence shows that, despite Plaintiff’s allegations that ABS submitted invoices for fees billed at higher hourly rates than agreed upon and for work they were not asked to do, Defendants believe the hourly rates to be consistent with their agreements and the work performed to be that which they were asked to do by the City. (UF 87-88).



Contrary to the Sparks facts, there is no evidence whatsoever to support the allegation that Ms. Means engaged in any “knowing” or “knowledgeable” conduct relating to the presentation of claims, assuming in the first place that they were false. Since Plaintiff can not prove this element, these two causes of action fail.

B. Plaintiffs Conspiracy Cause of Action Fails.

Plaintiffs Eighth Cause of Action is for “conspiracy to defraud a public entity by false claims”. Government Code § 12651(a)(3). Civil conspiracy, however, is a tort and therefore, Ms. Means has available to her the same immunity defenses as discussed supra in Sections V and VI of this Memorandum of Points and Authorities. In addition, civil conspiracy is not an actual tort in and of itself. Unruh v. Truck Insurance Exchange (1972) 7 Cal App 3d 616, 631. Conspiracy to commit tortious acts can only be formed by persons who under an existing duty to the Plaintiff, the breach of which will support a tort cause of action against them individually, not simply as co-conspirators. Chavers v. Gatke Corp. (2003) 107 Cal App 4th 606. To establish a prima facie case of civil conspiracy requires 1) An agreement among the alleged conspirators to commit a tortious act; 2) A tortious act carried out pursuant to the agreement; and 3) Resulting damage to the Plaintiff. Unruh, supra, at 631. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal 4th 510, 511. Under the federal False Claims Act, a Section (a)(3) violation includes 1) a claim to the government; 2) a false claim; 3) payment or approval by the government; 4) an agreement to submit that false claim; 5) an act in furtherance of the object of the agreement; and 6) intent to defraud. U.S. ex rel Durcholz v. KFW, Inc. (7th Cir. 1999) 189 F. 3d 542, 545 n.3. The federal language is nearly identical to the California’s language in 12651(a)(3). While Ms. Means does not believe that Plaintiff can establish that any false claims were made, assuming again for the sake of this motion only, Plaintiff, throughout the extensive discovery in this matter, has failed to produce one shred of evidence of a conspiracy. Plaintiff has not produced any evidence of an agreement to submit any “false claims”. Plaintiff has not produced an iota of evidence which could establish an “intent to defraud”. Plaintiff can only point to the fact that ABS did work for the City of San Diego. Plaintiff cannot demonstrate any special relationship between Ms. Means and any of the ABS Defendants. It cannot show a close friendship or anything other than the relationship between professional colleagues. The City has no evidence of any special agreements, side agreements, secret agreements, or any other kind of illegal agreements between the Defendants. There were none. Plaintiff cannot demonstrate that the Airports Division treated the ABS Defendants differently from other vendors. It did not. Plaintiff has no evidence of any intent to defraud the City in any way shape or form by Ms. Means or, for that matter the ABS Defendants. Plaintiff has no evidence, direct, indirect or inferential, which would support the existence of a conspiracy. Further, there can be no underlying tort because Ms. Means is immune from suit and there must be an underlying tort claim to support this cause of action. This cause of action is not legally viable and therefore it, too, must be summarily adjudicated in favor of Ms. Means.

C. Summary

Plaintiff has not provided a scintilla of evidence to support these claims. False Claims Act causes of action must go far beyond a mere negligence claim. They require a clear intent to defraud or mislead. Plaintiff must demonstrate much more than mere mistake or negligence. Wang v. FMC Corp. (9th Cir. 1992) 975 F.2d 1412. To avoid summary judgment, Plaintiff must submit admissible, credible evidence of a knowing false claim or statement. Plaintiff can not do that here. As such, the three causes of action based on the California False Claims Act must be adjudicated summarily in Ms. Means’ favor.



X. MEANS IS NOT A PROPER DEFENDANT FOR THE SECTION 108 VIOLATION ALLEGATIONS

Plaintiffs final cause of action against Ms. Means, their Twelfth Cause of Action, alleges statutory liability under City Charter Section 108. Ms. Means is not a proper defendant to this cause of action and therefore, it must be adjudicated in her favor. City Charter Section 108 states:

“Every officer who shall willfully approve, allow, or pay any demand on the treasury not authorized by law, shall be liable to the City individually and on his official bond, for the amount of the demand so approved, allowed or paid, and shall forfeit such office and be forever debarred and disqualified from holding any position in the service of the City.”

On its face, this section does not apply to Ms. Means. The section starts out, “[e]very officer.” She was not an officer of the City and there is no evidence to the contrary. (UF 96) Further, Government Code Sections 40600 et seq. discuss municipal officers, their duties and responsibilities. In that portion of the government code, deputy directors are not included. (§40600, et seq.: Mayor; §40800, et seq.: City Clerk; §41000, et seq.: City Treasurer; §41200, et seq.: City Assessor; §41400, et seq.: City Judge and City Court; §41607 et seq.: Chief of Police; and §41800, et seq.: City Attorney.) Ms. Means was not an “officer” of the City. Moreover, the statute states, “ ‘individually and on his official bond”. This clause is in the conjunctive which means that it applies to individuals who have official bonds.6 Ms. Means was not a bonded employee. She was never asked to get a bond, did not apply for a bond, was not turned down for a bond. (UF 97) This section does not apply to her. 6

In construing a statute, the duty of the court is simply to ascertain and declare what is in th terms or substance contained therein, not to insert what has been omitted, or to omit what has been inserted. Yao v. Superior Court (2002) 104 Cal. App. 4th 327, 333.

Case law has interpreted the distinctions between officers and employees. An officer is distinguished from an employee by the greater importance, dignity, and independence of his or her position, and by the authority to direct and supervise. Mason v. City of Los Angeles (1933) 130 Cal. App. 224 An officer is further distinguished from an employee by the fact that he or she is required to take a public oath of office and is usually required to give an official bond, among other indicators. Coulter v. Pool (1921) 187 Cal. 181. Another indicator is that the emoluments connected with an office continue without regard to services until termination of the office whereas an employee’s compensation accrue when the services are performed and not unless they are performed. White v. City of Alameda (1899) 124 Cal. 95. Clearly, Ms. Means is not an officer as defined by the law. She was a mid-level manager with at least four management levels between her and the City Council. (UF 99) While running the City’s airports was an important job, the position does not carry with it the “greater importance, dignity, and independence” contemplated by the case law or even Section 108 of the Charter. Moreover, she was not required to give an official bond when hired and the oath of office she took is one which both officers and employees take when hired. (UF 97-98) Section 108 does not apply to Ms. Means and she can not be held liable under this theory. Even if the section did apply, Plaintiff must show she acted willfully, something which it can not do as has been demonstrated infra. Willful conduct requires that Ms. Means have done something with the intent of avoiding the rules, vexing, annoying or hurting the City, or maliciously. Assuming arguendo that she did anything wrong at all, she did so accidentally. Such conduct does not meet the requirements of this charter section. Section 108 does not apply to Ms. Means and she can not be held liable under this theory. This cause of action must be summarily adjudicated in her favor.



XI. CONCLUSION

Based upon the foregoing law, facts and argument, in combination with the Separate Statement of Undisputed Material Facts, and the Declarations and evidence filed herewith, it is clear that Plaintiff has no viable lawsuit against Defendant Tracy Means. As such, summary judgment should be entered in her favor and against Plaintiff City of San Diego. In the alternative, if any merit is found to any of the claims against Ms. Means, there are many other causes of action for which there is no merit or there are statutory immunities, thereby requiring the court to summarily adjudicate them in Ms. Means’ favor. Specifically, the First, Second and Eleventh Causes of Action fail because the statutory immunities apply and therefore liability cannot be found against Ms. Means. The Fifth Cause of Action for violation of Business and Professions Code § 17200, et seq. also fails as a government employee acting within the course and scope of her employment is not an appropriate Defendant to a claim under the Unfair Business Practice Act. The Sixth and Seventh Causes of Action fail because of Plaintiff has no evidence that Ms. Means knowingly, within the meaning of the statutes, made or attempted to make any false claims. Further, there is not a shred of evidence to support a conspiracy between the ABS Defendants and Ms. Means as alleged in the Eighth Cause of Action. Additionally, Ms. Means did not commit any wrongful act and therefore the conspiracy is not actionable independently. Finally, the Twelfth Cause of Action alleging liability against Ms. Means pursuant to Section 108 of the City Charter fails as she was not an officer of the City nor was she a bonded employee. It is clear that the City’s lawsuit fails in full or in substantial part. As such, the case may be summarily adjudicated and it should be. Dated: 6/18, 2007. Respectfully submitted, ROSENSTEIN, WILSON & DEAN, P.L.C. By: <<signature>> Paula S. Rosenstein, Esq. Attorneys for Defendant Tracy L. Means

End of Document




Filings (17)

















2007 WL 5879530














12. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5425528








16. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an





individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005417






Direct History (1)












Order Reversed by





Title Court Date








Defendant Tracy L. Means’memorandum In Opposition to Plaintiffs’Motion to Strike Cost Bill- Tax Costs and for Sanctions Under Ccp |128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS (aka Tracy L. Williams) an individual; MICHAEL HODGES, an individual; ROBERT THOMPSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; Does 1-20, inclusive, Defendants. | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County

CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs,

v. Tracy L. MEANS (aka Tracy L. Williams) an individual; MICHAEL HODGES, an individual; ROBERT

THOMPSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; Does 1-20, inclusive, Defendants.

No. GIC858344. December 3, 2007.

Date: December 14, 2007 Time: 8:30 a.m. Dept.: 65 Complaint Filed: December 13, 2005 Trial Date: Not Applicable

Defendant Tracy L. Means’memorandum In Opposition to Plaintiffs’ Motion to Strike Cost Bill- Tax Costs and for Sanctions Under Ccp §128.6 and 128.7

Paula S. Rosenstein, Esq. (Sbn 12624), Rosenstein, Wilson & Dean,p.L.C., 1901 First Avenue,suite 300, San Diego, CA92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.

Hon. Joan M. Lewis.

Defendant Tracy L. Means respectfully submits the following Memorandum of Points and Authorities in Opposition to Plaintiffs Motion to Strike Cost Bill - Tax Costs and for Sanctions Under CCP 81 6 and 128 7

I. INTRODUCTION The City of San Diego filed the instant ill-advised and frivolous lawsuit against, among others, Defendant Tracy L. Means (hereinafter “Means”) on December 13, 2005. The City Attorney later added the State of California as an additional Plaintiff. Means vigorously defended the lawsuit and, after filing and prevailing on a Motion for Summary Judgment, filed a Memorandum of Costs as permitted by statute. Plaintiffs have now filed a Motion to Strike the Cost Bill in its entirety, a Motion to Tax Costs because that request will likely fail and a request for sanctions. None of Plaintiffs’ requests should be granted as there is no basis to do so. In short, Plaintiffs’ Motion should be denied.

II. THE COST MEMORANDUM IS PROPER

Plaintiffs’ challenge the entire cost bill on the grounds that the cost bill was not verified. Even assuming Plaintiffs’ are correct on the law, their arguments are irrelevant as the Memorandum of Costs submitted was verified by defense counsel. The Memorandum of Costs (Summary) is a Judicial Council form. Just under the box containing the “Total Costs” is a statement. It says:



“I am the attorney, agent or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case.”

In this case, the document, including this statement, was signed by Paula S. Rosenstein, Esq., attorney for Defendant Tracy Means. There is no basis for Plaintiffs’ assertion that any other statement must accompany the filing of the cost bill or that Ms. Means personally sign the verification. Obviously, the document has been verified within the meaning of the statute otherwise the Judicial Council form would not have been created as it was. Therefore the cost bill may not be stricken in its entirety on this ground. Plaintiffs next argue that the cost bill should be stricken because the Memorandum of Costs contains money spent in the companion case of Means v. City of San Diego and, as such, should not have been included. Including them and then signing the verification would be, according to Plaintiffs, tantamount to committing perjury. Again, Plaintiffs are in error. First, if the expenses are improper, they can be taxed as Plaintiffs have asked for in other sections of their motion. Second, the verification states that the signator believes that the included costs were necessarily incurred. It is the belief of defense counsel that the costs incurred in Means v. City of San Diego were necessarily incurred in this suit. (See Rosenstein Declaration) But for Plaintiffs’ filing of this frivolous suit against Ms. Means, she would have had no reason to seek the provision of a defense from her former employer and never would have had to file the companion lawsuit or incur the expenses associated therewith. Obtaining a defense paid for by the City was a tremendous priority for Ms. Means as she does not have the resources the City does. As such, the included costs were necessarily incurred by Ms. Means and are recoverable. Plaintiffs, in their recitation of the facts, fail to indicate that in the exchange about the inclusion of these costs, defense counsel offered to avoid the necessity of a motion by deducting half of the disputed costs. Plaintiffs were not interested in discussing that and preferred to file the motion. Since they are now asking for sanctions based on having to file the motion, this piece of information should have been included for the court’s consideration. Needless to say, while Plaintiffs may disagree with defense counsel’s reasoning, the inclusion of the costs was done in good faith and sanctions are unwarranted. In addition, after receiving and reviewing the motion, Defendant again tried to negotiate this dispute with Plaintiffs’ counsel. After reviewing the motion, Defendant identified $610 as costs included in the total cost bill of over $8,900 which were incurred in Means v. City of San Diego. Defendant offered to stipulate to a reduced cost bill which would eliminate the disputed costs. Plaintiffs rejected the offer unless Defendant provided additional information not required by code and which was so extensive that it would have taken longer to gather than to simply oppose the motion and address the issues raised in it. (See Rosenstein Declaration, Exhibit “A”.) Plaintiffs had no true interest in resolving this dispute without the court’s intervention but simply want to harass Defendant and force her to incur additional costs. Based thereon, Defendant is asking the court to impose sanctions on Plaintiffs for the fees and costs incurred in opposing this needless motion in accordance with CCP § 128.5, 128.6 and 128.7. In sum, there is no basis to strike Defendant’s entire Memorandum of Costs.

III. PLAINTIFFS’ CHALLENGES TO THE COST MEMORANDUM ARE LARGELY UNFOUNDED

Plaintiffs have challenged the appropriateness of numerous items contained in the cost memorandum filed by Defendant. With the arguable exception of the expenses paid in Means v. City of San Diego, all of the other items are recoverable under the statute. Plaintiffs’ claim that some charges may be too high or that some items should not have been personally served but rather mailed is completely subjective. Moreover, these opinions are being rendered by an attorney who was not the attorney working on the case at the time the costs were incurred. It is not possible for him to know whether personal service was necessary. Additionally, it is not his opinion which is relevant in making the decisions - some of them more than a year ago. Plaintiffs argue that they could not understand the Excel spreadsheet which was attached to the Memorandum of Cost.



Defendant thought that the Excel spreadsheet was more explanatory rather than less. Nonetheless, Defendant was willing to provide Plaintiffs with more specifics when trying to negotiate a solution to this dispute. Plaintiffs refused the offer and instead choose to be deliberately obtuse regarding the costs included in the memorandum. (See Rosenstein Declaration, Exhibit A.)

A. Plaintiffs’ Objections to the Filing Fees are Unfounded

Section 1(a) of the Memorandum of Costs (Worksheet) deals with filing fees. Plaintiffs, in several cases, say they do not know what the fee is for. Although Plaintiffs should know what the fees are for as they have their litigation files, Defendant offered to clarify the issue but Plaintiffs’ counsel was uninterested in those details. More specifically, the filing fees from the Means v. City of San Diego lawsuit were clearly identified - $320 for the initial filing fee on April 14, 2006 and $200 for the summary judgment motion filing fee on July 6, 2007. All of the others were from the City v. Means litigation. They were: 10/19/2006

Filing Fee - Motion for a Protective Order

$40.00

3/22/2007

Filing Fee - Demurrer to City’s 3rd Am. Complaint

$40.00

4/23/2007

Filing Fee-Ex Parte re: setting of Demurrer

$40.00

6/9/2007

Filing Fee - Ex Parte re: extra pages for MSJ

$40.00

8/29/2007

Filing Fee - Attorneys’ Fee Motion

$40.00

10/02/2007

Filing Fee - Attorneys’ Fee Motion

$40.00

Clearly, each of these fees is recoverable under CCP §§ 1032 and 1033.5.

B.The Deposition Costs are Recoverable

Plaintiffs claim that the deposition costs are unclear. As was explained to Plaintiffs’ counsel, the amounts identified on the Excel spreadsheet and on page 6 of Plaintiffs’ memorandum are the amount on the invoice from the court reporters. Although the Memorandum of Costs (Worksheet) separates out “transcription” and “taking”, the court reporters’ invoices do not. There are no “travel” costs other than the parking which is delineated and to which Plaintiffs are apparently not objecting.

C. Service of Process Costs are Recoverable

Plaintiffs point out that the spreadsheet calls the fees listed in Item 5(a) of the Memorandum of Costs (Worksheet) “messenger fees.” This is a misnomer as the fees included on the cost bill were service of process fees. No “messenger fees” were included. Those, including rush charges which the messenger charges for “same-day filings”, typically range from about



$10-$20. This was also explained to Plaintiffs’ counsel but, as is stated in his email, Plaintiffs believe that they should be allowed, in hindsight, to debate whether items should have been served personally or not, by mail or not, or on a “rush” basis or not. These are not open to debate. These were properly incurred costs and are recoverable under CCP §§ 1032 and 1033.5. Plaintiffs further object to the amount of the service fees and argue that they are excessive. They say that since the City is charged less, the amount Defendant was charged is too much. The amounts charged were from the service company used by defense counsel at the time, American Legal Support Services, Inc. More recently, Battle Attorney Service is being used which is why the charges dropped from $84.95 to $45.00 for the same service of process expense. See Rosenstein Declaration. In any event, the City is likely able to negotiate a much more favorable price based the City’s volume than is a small firm like defense counsel’s. The specific objections raised by Plaintiffs on pages 7-8 of their motion are not well-grounded. For instance, on the 12/29/2006 charges, they insist that deposition notices never needed to be personally served. Again, there is no declaration supporting this statement and there could not be as Plaintiffs’ current counsel, Mr. Cordileone, was not even working on this case at that point in time. Moreover, while counsel in this case certainly did cooperate in scheduling, because of the number of schedules to coordinate in order to set deposition dates, occasionally the time for service ran short thus necessitating personal service. Were that not the case, there would have been far more costs for personal service of deposition notices included in the cost bill. The harassing purpose of this motion is further evidenced by the statement in the 6/18/2007 entry where Plaintiffs say “Personal service of the summary judgment motion was unnecessary as the City is a party to the lawsuit and should have been served by mail.” (See page 7 of Plaintiffs’ motion.) Service by mail requires serving the motion 5 days earlier. CCP § 1013. Defendant served the motion when it was completed and ready for filing. That did not allow time for service by mail just as it rarely does in any motion for summary judgment. Defendant also notes that Plaintiffs’ opposition to the Motion for Summary Judgment was personally served on defense counsel’s office thus pointing out the fallacy in Plaintiffs’ argument. Again, Plaintiffs show the true purpose of this motion in the arguments regarding the service of moving and reply papers on the attorneys for co-defendants. Allegedly the service was unnecessary because they had already settled with the City. However, Defendant was informed and believes that the settlement fell apart several times before it was finally consummated. Moreover, the Request for Dismissal was not signed or served on Defendant until August 17, 2007. The Request was signed by Joe B. Cordileone, Esq. - the author of Plaintiffs’ moving papers. Defendant is not free to simply ignore parties not yet dismissed from a lawsuit in serving motions or other papers. Therefore, Co-Defendants’ counsel, James Pokorny, had to be served. The only legitimate questions posed by Plaintiffs are those for the Fees incurred on August 2, 2007 for service to Mr. Pokorny, and those incurred on September 1,12 and 17, 2007. The fee for service on Mr. Pokorny was for serving him with the Perez deposition notice. As previously indicated, we did not yet have any evidence that ABS had been dismissed from the suit. The service on September 1, 2007 was to the City for the fee motion. The last two were for serving the City with the Opposition to the City’s Motion for Summary Judgment and the Reply papers on Means’ Motion for Summary Judgment - both in Means v. City of San Diego. These last two total $90 and are part of the $610 reduction Defendant offered to Plaintiffs to resolve this dispute. Clearly, all of the personal service fees were necessary and appropriate. They were not excessive and they certainly were not incurred to disadvantage the City in some way. As before, since the Means v. City of San Diego was necessitated by the City Attorney’s filing of the instant lawsuit, those costs were necessarily incurred and are recoverable as well. Even if the court determines otherwise, they only amount to $90 of the total service of process fees being challenged by Plaintiffs.

D. Summary

All of the costs identified in the Memorandum of Costs (Summary) were properly incurred and are recoverable. The only possible exceptions are the $610 paid for filing the service fees in the Memorandum. Defendant’s costs should not be taxed. Rather the cost bill of $8,918.07 should be confirmed.



III. SANCTIONS AGAINST PLAINTIFFS ARE APPROPRIATE

CCP Sections 128.5, 128.6 and 128.7 provide the court with the authority to impose sanctions on Plaintiffs. In this case, sanctions should be imposed as this motion was clearly filed for the purpose of harassing Defendant, causing her unnecessary delay and needlessly increasing the expense of this litigation. The only truly arguable costs included in the cost bill are those associated with the Means v. City of San Diego case. Defendant offered to reduce the cost bill by half of that expense prior to the filing of the motion and fully after receiving Plaintiffs’ motion. Further, Defendant offered to answer any questions regarding the filing fees, deposition charges or service of process charges. Plaintiffs were uninterested and, as such, the real purpose of the motion was exposed. If Plaintiffs were actually interested in just gaining the clarification which they say was missing by use of the Excel spreadsheet, those clarifications were offered and could easily have been made. Since sanctions are appropriate, they should be awarded in the amount of $ 2,560.00. This is based on the 4.9 hours spent in trying to communicate with opposing counsel and in opposing this motion. It also includes an hour and one-half for the preparation and court appearance on the hearing date of December 14, 2007.

III. CONCLUSION

Plaintiffs have asked the court to disallow the entire cost bill because it was supposedly unverified. In fact, the Memorandum of Costs was completed as required. They also ask the entire cost bill to be disallowed because expenses from the Means v. City of San Diego case were included. That is also not a basis for disallowing the entire bill since those costs were included in a good faith belief of their appropriateness. Plaintiffs also ask the court to disallow various service of process fees because, in their subjective judgment, the fees were too high or unnecessary. They were, however, necessary in the view of Defendant’s attorney and they were actual charges incurred. Striking any of them or reducing the amount would be inappropriate. Clearly all of the motion fees and deposition charges are also necessary and appropriate. Therefore, no adjustments should be made to those line items and the full costs bill of $8,918.07 should become a part of the Judgment. Finally, sanctions should be assessed because this motion should have been unnecessary. Plaintiffs’ unreasonable positions demonstrate that the motion was just intended to delay, harass and increase costs of litigation for Defendant. Dated: 12/3 ,2007.

End of Document


CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State...


Filings (17)

















2007 WL 5879530














2007 WL 5425528




















Direct History (1)












Order Reversed by





Title Court Date








Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Abs Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County



individual; Airport Business Solutions, Inc., a Georgia Corporation; Abs Aviation Consultancy, Inc., d/b/a Airport Business Solutions, a Florida Corporation; Thompson Aviation Consulting, Inc., a Florida Corporation;


No. GIC858344. July 27, 2007.

Date: August 3, 2007 Time: 8:30 a.m. Complaint Filed: December 13, 2005 Trial Date: September 7, 2007 Tentative Ruling Available 8/2/07 At 4:00 p.m. At (619) 531-3690 or www.sdcourt.ca.gov

Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues

Paula S. Rosenstein, Esq. (SBN 12624), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, CA 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.

I/C/J Hon. Joan M. Lewis.

I. INTRODUCTION Plaintiffs City of San Diego and the People of the State of California provide the Court with a lot of “information” regarding the City’s processes and procedures, but not a shred of admissible evidence to support the allegations against Defendant Tracy L. Means that Ms. Means engaged in intentional wrongdoing, acted with ill motive, or engaged in bad conduct. Yet five of the remaining seven causes of action brought against Ms. Means require this type of scienter, i.e., intentional or knowing wrongdoing.1 Plaintiffs are hoping that by showing the Court the sheer volume of administrative procedures and processes which the City expects to be followed that they will be able to muddy the issue and create confusion such that Defendant’s Motion will be denied. No amount of obfuscation, however, can hide the fact that Plaintiffs have no evidence whatsoever of intentional or knowing misconduct by Ms. Means. 1

Plaintiffs had six causes of action requiring intentional conduct, including intentional misrepresentation, fraudulent concealment, violation of City Charter § 108 and three false claims causes of action. Plaintiffs now concede that they cannot prove theconspiracy to submit False Claims cause of action (8th) and have withdrawn it. Thus, there are now five causes of action against Ms. Means requiring intentional or knowing conduct and seven causes of action against Ms. Means overall.

Additionally, since the remaining two causes of action, negligent misrepresentation (2nd) and violation of Business and Professions Code § 17200 (5th), are barred as demonstrated in Defendant’s moving papers, Defendant’s Motion must be granted.



II. PLAINTIFFS’“FACTS” ARE IRRELEVANT AND IMMATERIAL TO THE MATERIAL ISSUES IN THIS CASE.

The City’s “Statement of Facts”, found at Pages 1-4 of Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant’s Motion for Summary Judgment, fail to create triable issues of material fact. The evidence relied upon by Plaintiffs is largely inadmissible or irrelevant. There is no doubt that the City has extensive written procedures and processes. The Declarations provided about these processes are, to the extent that they are even admissible, not helpful as they are from persons expert in these processes. There is no doubt that they know the procedures and if they failed to follow them, their failure could raise an implication of intentional or knowing wrongdoing. That is not the case, however, with Ms. Means. Ms. Means had job duties which were far broader than the specific staff functions of these declarants. To comply with the City’s processes and procedures, she relied on the assistance and information provided to her by her superiors, peers and staff. An element in five out of the seven remaining causes of action against Ms. Means is whether she was “motivated by corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or harm the injured party in its business” Schonfeld v. City of Vallejo (1975) 50 Cal App 3d 401, 410 (overruled on other grounds, Masters v. County of San Bernardino (1995) 7 Cal 4th 725), or, in the case of the False Claims Act, whether she knowingly acted in violation of these rules. This is not a case about negligent or inadvertent failure to follow specific procedures. None of the facts that Plaintiffs present demonstrate that Ms. Means engaged in any knowing or intentional misconduct. Plaintiffs repeatedly state, in one form or another, that Ms. Means issued contracts to ABS. In fact, Ms. Means electronically signed off on purchase requisitions, i.e., requests to purchase services, from ABS. The Purchasing Department decided whether or not to issue the Purchase Order. The Purchase Order is what the Plaintiffs now contend is the contract. Therefore, it is not Ms. Means who issued the contract. Moreover, Ms. Means did not have the authority to enter into contracts and she knew that. She never believed that she was entering into contracts with ABS. Ms. Means, throughout her employment, did what she was instructed to do. With regard to the Sole Source Memo as already addressed in Defendant’s moving papers, she did what she was instructed to do by Linda Baldwin, the head of the Purchasing Department, also known as the Purchasing Agent. Note that in Ms. Baldwin’s Declaration submitted in support of Plaintiffs’ Opposition, she does not refute that Ms. Means was following her instructions. Moreover, Defendant was instructed by her superiors to contact Michael Hodges of Airport Business Solutions, Inc. to have him do the work related to Brown Field. Ms. Means had no contact with Mr. Hodges or ABS during the time she was employed with the City of San Diego prior to this Sole Source Memo. She had no motive, no interest, and no benefit in contacting ABS, as opposed to any other consultant. Rather, as demonstrated in the evidence produced, she followed her instructions. Throughout Plaintiffs’ Statement of Facts, Plaintiffs use many inflammatory words such as “fraudulent”, “avoided”, and “tried to cover her tracks”, but have submitted no admissible evidence to support the scienter which must accompany the use of these words. Rather, Plaintiffs use complete mischaracterizations and half-truths in an attempt to overcome Defendant’s Motion for Summary Judgment. Plaintiffs describe Ms. Means as if she was an island unto herself, able to hire anybody she wanted, to do anything she wanted and to spend the Airports Division’s money however she wanted. The facts, as already submitted, identify that there were processes that she used, that she relied upon the staff in the Airports Division, the staff in other departments and her supervisors to get work done for the Airports Division. Ms. Means was not an isolated actor, but an employee following the City processes and procedures as she reasonably understood them. Defendant has shown that Plaintiffs have failed to produce any evidence of the necessary scienter. Plaintiffs’ voluminous amount of information presented regarding City processes is simply a red herring and not admissible evidence which creates triable issues of material fact.

III. DEFENDANT HAS MET THE SUMMARY JUDGMENT STANDARD.

Plaintiffs argue that Defendant has, in her papers, attempted to shift the burden of proof to the Plaintiffs to prove their case at the summary judgment stage. This is an inaccurate presentation of the facts, argument, and law presented by Defendant in her moving papers.



To the contrary, Defendant has submitted significant evidence from the testimony of Plaintiffs’ own witnesses demonstrating that there are no facts to support the allegations of wrongdoing which could lead to liability for Ms. Means. By showing the absence of any evidence supporting intentional or knowing wrongful conduct on Ms. Means’ part, Defendant has negated an essential element in each of five out of the seven causes of action. In the two remaining causes of action, those of negligent misrepresentation and violation of Business and Professions Code § 17200, Defendant has shown why legally, these causes of action must be adjudicated in Ms. Means’ favor. Rather than forcing Plaintiffs to prove their case at this stage, Defendant has simply required Plaintiffs to identify evidence which refutes the evidence provided by Defendant that a necessary element cannot be met in five of the seven causes of action. Defendant has met her burden of proof.

IV. THE GOVERNMENTAL IMMUNITIES APPLY.

Plaintiffs, in Section II of their Memorandum of Points and Authorities at Pages 6-8, argue that there are triable issues of fact as to whether Ms. Means is guilty of fraud, corruption or actual malice as required by Government Code § 822.2. In stating this argument, Plaintiffs neglect to provide any evidence refuting the facts Defendant put forward in her moving papers. Additionally, Plaintiffs mischaracterize and misstate the law from the cases cited. For instance, Plaintiffs cite to Ogborn v. City of Lancaster (2002) 101 Cal App 4th 448, 462 and put in bold that the Court concluded that “summary judgment based on Government Code § 822.2 is not appropriate”. Plaintiffs’ emphasis mischaracterizes the Court’s decision.2 The Court’s decision was based upon the facts of that case and was not a blanket statement that summary judgment based on Government Code § 822.2 is improper as Plaintiffs imply by holding that portion of the quoted language. Accordingly, their reliance on Ogborn is misplaced. 2

In furtherance of their attempt to mislead the court, Plaintiffs do not identify the fact that the emphasis is theirs and not the court’s.

Plaintiffs also mischaracterize the law as it applies to summary judgment when it states “any issue of triable fact must preclude the issuance of a summary judgment” with the word “any” in bold. In so doing, they misstate the statute and the appropriate emphasis. C.C.P. § 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”. (Emphasis added.) Plaintiffs, in their desperate attempt to have the Court deny Ms. Means’ Motion, are going so far as to mis-cite and mischaracterize the law in this issue. It has long been the case that it is triable issues of material fact which is the question being decided by the Court. It is not simply “any issue”. This is the exact same type of mischaracterization and misstatement of the facts that Plaintiffs have made throughout their Response to Defendant’s Separate Statement of Undisputed Facts and in Plaintiffs’ Memorandum of Points and Authorities. Given these baldly incorrect statements, Plaintiffs’ papers, as a whole, must be examined with a critical eye. Despite Plaintiffs’ attempts to mislead the court, they have still failed to demonstrate that the governmental immunities are inapplicable. Assuming for the sake of this motion that Plaintiffs can show that the City processes are supposed to be performed and followed in a certain way and that they were not performed and followed here, Plaintiffs must show more in order to proceed with this lawsuit. They have not provided any admissible evidence that demonstrates that Ms. Means knowingly failed to follow City procedures, assuming that she did fail to follow any of the procedures. They have not shown with admissible evidence that she had “full knowledge” of purchasing procedure requirements and the fact that the rules were different for consultants than they were for any other vendor. To the contrary, Defendant has shown in her Statement of Undisputed Facts and in reply to Plaintiffs’ alleged facts that she did not have full knowledge of these procedures; that she was acting in the best interests of the City; and that she relied upon her staff, other City staff and her superiors in her performance of her job duties, including following procedures. Without some evidence being presented by Plaintiffs through discovery or in opposition to this Motion, Defendant’s Motion



for Summary Adjudication based upon the applicable governmental immunities must be granted. Plaintiffs do not have even a scintilla of evidence that Ms. Means intended to vex, annoy, deceive or harm the City. Without this, the immunities apply and these causes of action should be decided as a matter of law in Ms. Means’ favor.

V. PLAINTIFFS’ false claims CAUSES OF ACTION FAIL.3

3

In Plaintiffs’ original Complaint filed in this case, there were three causes of action identified under the False Claims Act. Two of those causes of action, “False Claim Presentation for Payment” and “False Record or Statement to Get a False Claim Paid or Approved”, were only filed against the Co-Defendants in this matter. The third False Claims cause of action, “Conspiracy to Defraud a Public Entity by False Claims”, was plead against all of the Defendants, including Ms. Means, It was not until the Fourth Amended Complaint that Ms. Means was added as a Defendant to the other two False Claims causes of action. As of the filing of the Opposition to this Motion for Summary Judgment, however, Plaintiffs have now withdrawn the conspiracy cause of action against Ms. Means, leaving the other two False Claims causes of action. Plaintiffs have no doubt realized that they cannot prove the conspiracy claim because they cannot prove any agreement between the individual Co-Defendants, Michael Hodges and Roberta Thompson and Ms. Means. They cannot prove that there were any special agreements between these Co-Defendants because there were none.

Plaintiffs, now having dropped the Conspiracy to Defraud a Public Entity by False Claims cause of action, have two remaining causes of action under the False Claims Act. Plaintiffs are truly grasping at straws as they attempt to negate Defendant’s sufficient argument that there is no evidence to support the “knowing” or “knowingly” element in California Government Code § 12651(1) and (2). Ms. Means, as was her staff was simply doing her job. Invoices for all types of vendors came in to the Airports Division and went to the financial personnel in that division. They were to take the necessary steps to make sure that invoices presented were appropriate for payment. After doing so, they would provide it to Ms. Means, who would then, absent any abnormalities or issues raised to her by her staff, indicate that it was OK to pay the invoice. This is the same process and procedure that was followed for every invoice that came into the department. Ms. Means was not acting by herself and did not engage in different behavior with regard to ABS then she did with regard to any other vendor or any other invoice and Plaintiffs have not put forth any contrary evidence. When Plaintiffs’ witnesses have been deposed, they are unable to testify to facts which support Plaintiffs’ allegations that Ms. Means knowingly presented false claims.4 Looking at the admissible evidence presented by Plaintiffs in its most favorable light and accepting those facts as true for this motion, shows only that the City has processes and they might not have been followed to the letter by the Airports Division. At best that would support a negligence claim (which Plaintiffs have not brought). Plaintiffs have not produced any facts which create a triable issue of material fact. Summary adjudication of the remaining two False Claims causes of action must be granted. 4

Plaintiffs mistakenly attempt to rely on County of Kern v. Sparks, (2007) 149 Cal. App.4th 11. In that case, Sparks was told on at least two occasions that he could not do what he was doing but he persisted in the conduct. Here, there is no evidence of anywarnings or instructions from anyone telling Ms. Means that she was doing anything wrong, assuming she was.

VI. THE DOCTRINE OF UNCLEAN HANDS APPLIES TO THIS CASE AND IS PROPER FOR THIS MOTION.

Plaintiffs assert that Ms. Means has “failed to identify the elements of the [unclean hands] affirmative defense, let alone proffer any evidence that can establish such a defense”. Plaintiffs are again misleading the Court. In fact, at Page 11 of Ms. Means’ Memorandum of Points and Authorities in support of her Motion, she extensively describes the necessary elements and, in fact, cites two of the same cases cited by Plaintiffs. (See Page 11 Lines 1-11.) In that same section, Defendant has identified numerous facts to support the application of this affirmative defense. As such, for Plaintiff to again misstate the information provided to the Court is unconscionable. In fact, it is further evidence of the unconscionability and unclean hands from which the City of San Diego is operating in terms of this lawsuit. Ms. Means carried out the tasks related to processing invoices in exactly the same fashion for six years. Many of the meetings with ABS’s personnel involved other City staff, including, but not limited to, Director Will Griffith and employees



in the City Manager’s Office. ABS personnel were asked to appear in public meetings, asked to assist in three different litigation or potential litigation situations, to appraise property, to create and prepare documents to assist in the development of the airports and none of those include the business plans and document review which Plaintiffs repeatedly and falsely contend is the only work that ABS did for the City of San Diego for payments received. This continuing mischaracterization of the facts, how the City operates and how Ms. Means was doing her job is unconscionable behavior here. So too is the Purchasing Department’s unilateral decision to change the requirements such that a Deputy Director could sign off on purchase requisitions even though by the letter of the procedure, it was the Department Director who was required to sign off on purchasing requisitions. If the Purchasing Department had not unilaterally made this change, then all of the purchase requisitions would have gone through Director Griffith and he would have signed them. If there were any problems, they might have been addressed at an earlier point in time. Even assuming the “proper” procedures had been followed, Plaintiffs have presented no evidence that there would have been a different result for the city. There are more than sufficient facts presented to support a summary judgment for Defendant relying on this affirmative defense. Plaintiffs also argue that the application of the unclean hands doctrine is primarily a question of fact for the jury. The case law does not support that position. In fact, the case of Unilogic. Inc. v. Burroughs Corporation (1992) 10 Cal App 4th 612 cited by Plaintiff and Defendant in their respective briefs, specifically addresses this issue. The Unilogic court discussed whether an unclean hands defense should be submitted to a jury. Generally, as is clear from the long line of case law, legal claims are tried to a jury, while equitable claims are tried to a court. Unilogic at 621. There is no dispute that an unclean hands defense is an equitable claim and therefore is generally tried by a court. So while it may be true that a trial court has discretion as to whether to submit an equitable defense to a jury, a trial court is not required to do so. Id. at 622. As such, while it is within the trial court’s discretion to submit an equitable defense such as the unclean hands defense to a jury, it is also within the sound discretion of the court to decide this issue for itself. Here, since there are no triable issues of material fact, the Court can and should decide this affirmative defense issue and grant Defendant’s summary judgment.

VII. PLAINTIFFS’ SAN DIEGO CITY CHARTER SECTION 108 CLAIM MUST BE SUMMARILY ADJUDICATED.

Plaintiffs attempt to argue that their claim under Section 108 of the San Diego City Charter cannot be decided because there is a disputed issue of material fact which allegedly requires an analysis of Ms. Means’ job duties and responsibilities. According to Plaintiffs, this would preclude a grant of summary judgment on this issue. Plaintiffs then cite to various Attorneys General opinions, statutes and cases regarding the general law discussing the word “officer” and Ms. Means’ job duties. In making all of these legal arguments, Plaintiffs neglect to raise any factual arguments. In support of Defendant’s Motion, Ms. Means submitted a Declaration from George Loveland, former Assistant City Manager for the City of San Diego. Mr. Loveland clearly states in his Declaration that Deputy Directors are not officers of this City. He further states that Deputy Directors are not bonded employees of this City. These are facts. Plaintiffs have provided no facts in opposition. Plaintiffs simply argue that because Ms. Means had certain duties as a Deputy Director that she is therefore, under the law, an officer. As evidenced by the Declarations filed with Plaintiffs in opposition, they have numerous City employees available to provide Declarations. Noticeably absent is any declaration stating that Deputy Directors are officers of the City under the specific provision of sec. 108 of the Charter. Nothing contradicts Mr. Loveland’s declaration. Plaintiffs further contend that the phrase “individually and on his official bond”should be read to provide joint and several liability, as opposed to being a conjunctive requirement. In support of this proposition, Plaintiffs cite Galli v. Brown (1952) 110 Cal App 2d 764. Contrary to Plaintiffs argument, this case neither states nor implies that “individually liable and on his official bond” should be read in this manner. In fact, Galli states that if the charter section is “intended to impose personal liability on public officials where they authorize or make such payments, regardless of their good or bad faith, then this section is unconstitutional insofar as it attempts to impose such liability on the District Attorney”. Id. at 776. Since Plaintiffs have failed to put forth any evidence, through discovery or in opposition to this Motion, of Ms. Means’ alleged bad faith, applying this section without that requirement would lead to an unconstitutional application.



Plaintiffs’ complete failure to provide testimony contradictory to Mr. Loveland’s precludes any argument that there is a triable issue of material fact. Combined with the proper reading “individually and on his bond”and the potential unconstitutional nature of Section 108, it is clear that summary adjudication of the final two False Claims causes of action is appropriate.

VIII. THE UNFAIR BUSINESS PRACTICES ACT (BUSINESS AND PROFESSIONS CODE § 17200) IS INAPPLICABLE.

In arguing against the grant of summary adjudication for this cause of action, Plaintiffs do not address the key issue of whether this type of cause of action can be pursued against a government employee who is acting within the course and scope of her employment. In fact, nowhere in their Opposition do Plaintiffs address the issue of whether Ms. Means was acting within the course and scope of her employment. Plaintiffs have undoubtedly avoided this discussion because they have no facts upon which to base an assertion to the contrary. At all times involved in this lawsuit, Ms. Means was indisputably an employee of the City of San Diego. All of the work which ABS did for the City of San Diego was for the City of San Diego at the request not only of Ms. Means, but also other employees in the City of San Diego’s Real Estate Assets Department and the City Manager’s Office. Even assuming arguendo that Ms. Means violated some City process or procedure in the course of doing her job duties, it does not take her outside the scope of her employment. Neal v. Gatlin (1973) 35 Cal. App. 3d, 871, 875. Moreover, government entities were specifically excluded from the potential defendants of the Unfair Practices Act for public policy reasons. Janis v. Calif State Lottery Com’n. (1998) 68 Cal. App. 4th 824. There is no basis for treating a government employee differently from the entity itself unless Plaintiffs can show that Ms. Means was acting outside the course and scope of her employment. Despite multiple questions to multiple deponents, nobody has provided any evidence of such conduct. There is no doubt that Defendant has conclusively negated an element of Plaintiffs’ cause of action under the Unfair Competition Act. Based thereon, summary adjudication of this cause of action in Ms. Means’ favor is appropriate.

IX. CONCLUSION

Defendant has produced compelling evidence demonstrating that at least one element in each of the causes of action against Ms. Means is completely defensible. She has demonstrated that the only evidence which can be presented at trial is that she was doing her job to the best of her ability when using the processes and procedures she learned through her staff, other City staff and her superiors. There is no evidence to suggest that she was engaging in any intentional or negligent wrongdoing which would preclude the application of the various governmental immunities available to her as an employee of the City of San Diego. There is no evidence that she acted with actual fraud, corruption or malice and, in fact, the evidence presented is to the contrary. Plaintiffs are, in effect, trying to use a strict liability standard. Not only is this not the law, it would set horrible precedent for the treatment of government employees. The evidence provided to the Court by both Defendant and Plaintiffs demonstrates that summary judgment in favor of Ms. Means is appropriate, or, at a minimum, summary adjudication of many of the causes of action is proper. As such, in accordance with C.C.P. § 437c, such orders shall be entered. Dated: July 27, 2007.

End of Document




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16. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an





individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005417






Direct History (1)












Order Reversed by





Title Court Date








Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inclusive, Defendants. | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:





San Diego County

CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v.

Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inclusive, Defendants.

No. GIC858344. July 24, 2006.

Date: August 4, 2006 Time: 8:30 a.m. Dept: 65 Complaint Filed: December 13, 2005 Trial Date: January 19, 2007

Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint

Paula S. Rosenstein, Esq. (SBN 12624), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego,CA 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.


Defendant Tracy L. Means respectfully submits the following Memorandum of Points and Authorities in Opposition to Plaintiff City of San Diego’s Motion for Leave to File a First Amended Complaint.

I. INTRODUCTION The City of San Diego filed the instant ill-advised and frivolous lawsuit against Defendant Tracy L. Means (hereinafter “Means”) on December 13, 2005. Means is vigorously defending this lawsuit and, in the course of doing so, has served extensive discovery upon Plaintiff City of San Diego. Contrary to the assertions of the “discovery of new evidence” asserted by Plaintiff in its moving papers, the discovery responses have revealed that Plaintiff has no evidence of any conspiracy, side agreements or inappropriate conduct by Ms. Means with respect to Co-Defendant Airport Business Solutions (hereinafter “ABS”) or any other vendor. Because Plaintiff understands that if it cannot prove the conspiracy allegations against Ms. Means that it has no lawsuit against her, it is now attempting to bootstrap its way into a lawsuit by asserting that there are “newly discovered facts” that lead to the need to file the new causes of action for intentional and negligent misrepresentation and to request punitive damages. Defendant’s Motion should be denied as there are no newly discovered facts and, as a matter of law, the causes of action and punitive damage claims cannot go forward.

II. PLAINTIFF’S REQUEST IS UNTIMELY

Plaintiff has asserted that this Motion for Leave to File an Amended Complaint is timely and that it will cause no hardship to Defendant Means or anybody else. In fact, neither assertion is true.



First, the matter is not timely. A careful review of the assertions in the new causes of action demonstrates a recitation of the process by which purchase order contracts are supposedly entered into. Clearly, the City must be well aware of its process for entering into purchase order contracts - long before December, 2005 when this suit was filed. The process used by the City for entering into these agreements cannot possibly be newly discovered. Therefore, the assertion that these are newly discovered facts is false. In addition, the remainder of the “ new facts” identified in the First Amended Complaint are simply a regurgitation of those previously identified in the original Complaint. There is nothing new or different in the First Amended Complaint. As identified earlier, Plaintiff has simply discovered that it has no evidence with which to support its conspiracy allegations and therefore, it must try another tactic. It has no evidence to support these fraud allegations or these misrepresentation allegations either, but it is continuing to try to pursue its frivolous action against Ms. Means. Second, the filing of the amended complaint will cause Ms. Means substantial additional hardship. Ms. Means propounded significant amounts of discovery upon Plaintiff some time ago. The Interrogatories, Requests for Production of Documents and Requests for Admissions were extensive, so much so that Plaintiff requested numerous extensions so that it could complete its responses to discovery. Ms. Means was very accommodating in allowing the City to take the necessary time to provide full and complete responses to the discovery. At this point, Defendant is beginning to prepare her Motion for Summary Judgment and having to wait through another long round of written discovery will prejudice Ms. Means. Moreover, it will cause unnecessary time and expense for Ms. Means, a person with limited resources, particularly in relation to the City of San Diego. Allowing the amendment of the Complaint will cause significant financial and strategic hardship to Ms. Means. Plaintiffs request to file a First Amended Complaint should be denied as it is untimely and will cause unwarranted hardship for Ms. Means.

III. PLAINTIFF’S AMENDMENT IS FUTILE.

Although the general view is that great liberality should be allowed in the amendment of pleadings, there are limits. When a cause of action or claim is barred as a matter of law, allowing a Complaint to be amended simply wastes court and the parties’ time and energy and therefore is inapposite to the goals of judicial economy.

A. Negligent Misrepresentation of Fact:

Plaintiff seeks to add a cause of action for negligent misrepresentation of fact; however, this cause of action cannot be asserted against Ms. Means as she was a City employee acting in the course and scope of her employment throughout all of the actions described in Plaintiff’s First Amended Complaint. Based upon Government Code §§ 815.2, 818.8, 820.2 and 822.2, Ms. Means is immune from any liability. Government Code § 815.2 states, in pertinent part: “... A public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability”. Government Code § 818.8 states, in pertinent part, that “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such representation be negligent or intentional”. Government Code § 820.2 states, in pertinent part, that “... A public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused”. Government Code § 822.2 states that, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of



actual fraud, corruption, or actual malice”. Taken together, these code sections are very clear. Ms. Means cannot be found liable for negligent misrepresentation under any circumstances. These immunities are absolute. The only exception is if Ms. Means is found guilty of actual fraud, corruption or actual malice but these are not negligent acts. As such, she would not be found liable for negligent misrepresentation. Further, the City has not plead that the alleged negligent misrepresentation was due to actual fraud, corruption or actual malice. Based upon the foregoing, there is no set of circumstances under which the City can prevail against Ms. Means under the theory of negligent misrepresentation of fact. Based thereon, Defendant’s Motion for Leave to Amend its Complaint to add this cause of action must fail.

B. Intentional Misrepresentation of Fact:

Each of the code sections cited above, Government Code §§ 815.2, 818.8, 820.2 and 822.2, particularly when taken together, immunize Ms. Means from any liability for intentional misrepresentation of fact. Ms. Means was entering into contracts to have work done that the City wanted to have done. It wanted to have business plans created for the Brown and Montgomery Field airports. It wanted to have an assessment of various issues at various points in time. Ms. Means, as Director of Airports, was charged with having the work performed. Airport Business Solutions was on the approved vendor list. Ms. Means selected her vendor from the approved vendor list. The City has provided no facts upon which to base the assertion that the work performed by ABS was performed by them because Ms. Means was engaging in intentional misrepresentation of fact or fraud. As is well settled, fraud causes of action must be plead with specificity and the policy of liberal construction of the pleadings is inapplicable. Scafidi v. Western Loan & Building Co. (1946) 72 C.A. 2d 550, 558. There is nothing in the facts contained in the proposed cause of action for intentional misrepresentation of fact that identifies what it is that Ms. Means intentionally misrepresented, when or to whom. Moreover, there is certainly nothing in the proposed cause of action that demonstrates even reasonable allegations of her supposed liability for committing actual fraud, corruption or actual malice, the only exception to the immunities provided to Ms. Means in Government Code § 822.2. Courts have long held that the immunity includes all types of fraud and deceit cases. Schonfeld v. City of Vallejo (1975), 50 Cal. App. 3d 401, 408-410 (overruled on other grounds by Morehart v. County of Santa Barbara (1994) 7 Cal. 4th 725). Moreover, “actual fraud” and “actual malice” have been strictly interpreted, however, and immunity has been granted to public employees “even if their act is malicious and without probable cause or is an intentional tort.” Miller v. Hoagland (1966) 247 Cal. App. 2d 57,62. Because the City has failed to identify any new facts, or any facts at all in support of its proposed cause of action, the proposal must fail. The immunities granted to Ms. Means acting in her capacity as the Director of Airports is sufficiently broad as to make the addition of this cause of action to the Complaint futile. It would simply be a waste of time and money for the parties and the court. Plaintiff’s request to add this cause of action to the Complaint must fail.

IV. PLAINTIFF’S PUNITIVE DAMAGE CLAIM IS USELESS.

It is well settled that punitive damages cannot be had from a public employer/public entity. The government has been so insistent on having this protection that it has codified the matter. Government Code § 818 states that a public entity is not liable for damages awarded under Civil Code § 3294 or other damages imposed primarily for the sake of example and by way of punishing the Defendant. Because Ms. Means was acting in the course and scope of her employment, she is immune, just as the City would be if a third party was suing Ms. Means and the City for something related to the consulting work performed by ABS.



Because Ms. Means is immune from this claim, the court should refuse Plaintiff’s request to add this additional damage claim. Adding it is simply a vain attempt to intimidate Ms. Means as, in the end, it will simply be dismissed. Therefore, there is no point in allowing the amendment at this point. This is especially true where the public employee is not liable for an injury resulting from his act or omission where it was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. Government Code § 820.2. Since Ms. Means was exercising her discretion in the awarding of the work to ABS, there is no doubt that her actions are immune. Allowing the addition of the punitive damage claim is a useless exercise. The addition of the claim for punitive damages must be disallowed.

V. CONCLUSION

Based upon a review of the First Amended Complaint, it is clear that there are actually no newly discovered facts involved and insufficient specificity is alleged to support the claim. All of the things alleged were known or should have been known at the time the original Complaint was filed. Moreover, to allow the amendment of the Complaint simply because amendments to complaints are generally allowed would cause great economic hardship to Ms. Means to defend another frivolous cause of action to which she is immune. Based upon the foregoing law, facts and argument, Plaintiffs request to file a First Amended Complaint should be denied. Dated: 7/24/ , 2006.

End of Document




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12. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5425528








16. Plaintiff City of San Diego’s Memorandum of Points and Authorities In Reply to Defendant’s Opposition to City’s Motion for Leave to File a First Amended Complaint; Declaration of Sheila a. Lowery Ferg CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS (aka Tracy L. Williams), an individual





Michael Hodges, an individual Roberta Thompson, an individual Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inc 2006 WL 6005418






Direct History (1)












Order Reversed by





Title Court Date








Defendant Tracy L. Means’ Answer to Complaint CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L.Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inclusive, Defendants. | Superior Court of California. Appended Content




Jurisdiction:

California



Delivered By:

Client ID:

1111

Comment:




2006 WL 6005415 (Cal.Superior) (Trial Pleading) Superior Court of California.

CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, Plaintiff, v.

Tracy L. MEANS, (aka Tracy L.Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, inclusive, Defendants.

No. GIC858344. January 13, 2006.

I/C/J: Hon. Joan M. Lewis

Defendant Tracy L. Means’ Answer to Complaint

Paula S. Rosenstein, Esq. (Sbn 12624), Rosenstein, Wilson & Dean, P.L.C., 1901 First Avenue, Suite 300, San Diego, CA 92101, Telephone: (619) 232-8377, Facsimile: (619) 238-8376, Attorneys for Defendant, Tracy L. Means.

Defendant Tracy L. Means (aka Tracy L. Williams) (hereinafter “Defendan Means”) answers the Complaint of the City of San Diego (“Plaintiff’) as follows:

GENERAL DENIAL

1. Pursuant to the provisions of Sections 431.30(b)(1) of the Code of Civil Procedure Defendant Means generally and specifically denies each and every allegation in Plaintiffs’ Complaint, including each and every purported cause of action contained therein. Further, Defendant Means denies that Plaintiff has or will sustain any damages as alleged in its Complaint.

AFFIRMATIVE DEFENSES

2. Defendant Means alleges the following separate and affirmative defenses as follows:

FIRST AFFIRMATIVE DEFENSE

3. Plaintiffs Complaint, and every purported cause of action therein fails to set forth facts sufficient to state a cause of action

SECOND AFFIRMATIVE DEFENSE

4. Plaintiffs Complaint, and each and every cause of action contained therein, s barred because Plaintiff has failed to exhaust available federal and state mandated administrative remedies including but not limited to those set forth in Government Code Section 901 et seq

THIRD AFFIRMATIVE DEFENSE

5. The provisions of Sections 337, 399 and 343 of the Code of Civil Procedure and Government Code Sections 945.6 and



945.8, as well as other applicable statutes of limitations bar Plaintiffs claims.

FOURTH AFFIRMATIVE DEFENSE

6. Due to their tardiness in asserting their purported right to recover, Plaintiffs claims should be barred by the equitable doctrine of laches.

FIFTH AFFIRMATIVE DEFENSE

7. This action is filed in bad faith, and, as such, entitles Defendant Means to the recovery of her attorneys’ fees pursuant to C.C.P. § 128.6.

SIXTH AFFIRMATIVE DEFENSE

8. Plaintiffs Complaint, and each of the alleged causes of action contained therein, are barred by the statute of frauds, including, but not limited to, California Civil Code §§ 1624.

SEVENTH AFFIRMATIVE DEFENSE

9. As a result of the representations, acts, conduct and omissions of Plaintiffs, each of the alleged causes of action in the Complaint have been expressly and/or impliedly waived.

EIGHTH AFFIRMATIVE DEFENSE

10. As a result of the representations, acts, conduct and omissions of Plaintiff, each of the alleged causes of action in the Complaint has been expressly and/or implied consented to or otherwise ratified by Plaintiff.

NINTH AFFIRMATIVE DEFENSE

11. As a result of the representations, acts, conduct and omissions which are the subject of this action, Plaintiff, expressly and/or impliedly, freely and voluntarily, assumed the risks of injury and the resulting damages alleged in

each of the alleged causes of action in the Complaint.

TENTH AFFIRMATIVE DEFENSE

12. At all times and places set forth in the Complaint, Plaintiff failed to exercise ordinary care on its own behalf which negligence and carelessness was a proximate cause of some portion, up to and including the whole thereof, of the

injuries and damages complained of in this action. Plaintiffs recovery therefore should be barred or reduced according to principals of comparative negligence.

ELEVENTH AFFIRMATIVE DEFENSE



13. Defendant Means is immune from liability pursuant to all immunities granted by the California Government Code, including but not limited to Sections 815.2, 815.6 and 821.6, because all mandatory and discretionary duties, if any, imposed upon her at the time and place of the subject of this action were exercised with reasonable diligence.

TWELFTH AFFIRMATIVE DEFENSE

14. Defendant Means, her agents and employees are immune from liability by reason of the provisions of Government Code Section 815.6 in that all mandatory duties, if any, imposed upon them at the time and place of the subject of this action were exercised with reasonable diligence.

THIRTEENTH AFFIRMATIVE DEFENSE

15. Each and every act or omission of Defendant Means, her agents and employees were within the scope of their discretionary duties and official functions and Defendant Means, her agents and employees, are thereby immune from civil action pursuant to Section 820.2 of the Government Code.

FOURTEENTH AFFIRMATIVE DEFENSE

16. Any injuries or damages sustained by Plaintiff, if any, were the result of the acts, conduct or omissions of other persons and therefore Defendant Means is immune from liability pursuant to Section 820.8 of the Government Code.

FIFTEENTH AFFIRMATIVE DEFENSE

17. As a result of the representations, acts, conduct and omissions of Plaintiff, each of the alleged causes of action in the Complaint is barred by the doctrine of unclean hands.

SIXTEENTH AFFIRMATIVE DEFENSE

18. As a result of the representations, acts, conduct and omissions of Plaintiff, each of the alleged causes of action in the Complaint is barred by the doctrine of estoppel.

SEVENTEENTH AFFIRMATIVE DEFENSE

19. Defendant Means is entitled to offsets against Plaintiffs damages, if any, for monies and other benefits she has paid out or provided, directly or indirectly, to Plaintiff or for monies and other benefits bestowed on Plaintiff by any party, named or unnamed, in the Complaint.

EIGHTEENTH AFFIRMATIVE DEFENSE

20. Defendant Means alleges that any and all acts or omissions which allegedly were the proximate cause of Plaintiffs damages, if any, were caused by the acts or omissions of third parties and not by her acts and omissions, or in the alternative, that the proximate cause of Plaintiffs damages, if any, were the acts and omissions of third parties as well as her acts or omissions, and that Defendant Means’ liability, if any, should be reduced in proportion to the extent of such fault on the part



of said third parties.

NINETEENTH AFFIRMATIVE DEFENSE

21. Defendant Means alleges that her liability, if any, for damages sustained, if any, should be limited in direct proportion to Defendant Means’ percentage of fault, if any, and a separate judgment shall be rendered against Defendant Means for that amount.

TWENTIETH AFFIRMATIVE DEFENSE

22. Plaintiffs damages, if any, were proximately caused by an independent intervening or supervening cause of which Defendant Means had no knowledge nor control.

TWENTY-FIRST AFFIRMATIVE DEFENSE

23. The Complaint fails to name and join indispensable and necessary parties and otherwise names and joins improper parties.

TWENTY-SECOND AFFIRMATIVE DEFENSE

24. In the event there is a prior or subsequent action, in law or in equity, involving the same or similarly situated parties and arising out of the same events or series of events alleged in the Complaint, the present action is barred, in whole or in part, under the doctrines of res judicata, collateral estoppel and retraxit.

TWENTY-THIRD AFFIRMATVE DEFENSE

25. Plaintiffs Complaint, and each of the alleged causes of action contained therein, is barred because the Complaint is based on agreements that are void for illegality and therefore unenforceable.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

26. Plaintiffs Complaint, and each of the alleged causes of action contained therein, are barred because the Complaint is based on agreements which are in violation of public policy and therefore unenforceable.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

27. Plaintiffs Complaint, and each of the alleged causes of action contained therein, is barred because the Complaint is based on agreements that are unenforceable due to the doctrine of mutual mistake.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

28. Plaintiffs Complaint, and each of the alleged causes of action contained therein, is barred because the Complaint is based



on agreements that are unenforceable due to the doctrine of unilateral mistake.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

29. Plaintiff has failed to exercise reasonable care and diligence to avoid and minimize damages, if any, and many not recover for losses which could have been prevented by reasonable efforts on their part. Therefore, Plaintiff’s recovery, if any, should be reduced by the amount of damages that could have and should have been avoided and/or mitigated.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

30. Defendant Means alleges on information and belief that there may be additional affirmative defenses to Plaintiffs alleged causes of action which are currently unknown to Defendant Means. Defendant Means reserves the right to amend this Answer to allege additional facts and affirmative defenses when reasonably ascertained. WHEREFORE, Defendant Means prays for judgment as follows: 1. That Plaintiffs take nothing by reason of their Complaint; 2. That the Court grant Defendant Means her reasonable attorneys’ fees; 3. That the Court grant Defendant Means her costs of suit incurred herein; and 4. For such other and further relief as the Court may deem just and equitable under the circumstances. Dated: Jan 13 2006.

End of Document




Filings (17)










5. Plaintiffs’ Reply Brief in Suporrt of Motion To Strike Cost Bill - Tax Costs and for Sanctions Under Ccp || 128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; et al., Defendant. 2007 WL 5879530


6. Defendant Tracy L. Means’memorandum In Opposition to Plaintiffs’ Motion to Strike Cost Bill- Tax Costs and for Sanctions Under Ccp |128.6 and 128.7 CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California, et al., Plaintiffs, v. Tracy L. MEANS (aka Tracy L. Williams) an individual; MICHAEL HODGES, an individual; ROBERT





THOMPSON, an individual; AIRPORT BUSINESS SOLUTIONS, INC., a Georgia Corporation; Does 2007 WL 5425530









11. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Reply to Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment or Summary Adjudication of Issues CITY OF SAN DIEGO, a municipal corporation and a Political Subdivision of the State of California and the People of the State of California, acting by and through San Diego City Attorney, Michael J. Aguirre, Plaintiff, v.





Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an indi 2007 WL 5425528









16. Defendant Tracy L. Means’ Memorandum of Points and Authorities In Opposition to Plaintiff’s Motion for Leave to File a First Amended Complaint CITY OF SAN DIEGO, a municipal corporation and a





Political Subdivision of the State of California, Plaintiff, v. Tracy L. MEANS, (aka Tracy L. Williams) an individual; Michael Hodges, an individual; Roberta Thompson, an individual; Airport Business Solutions, Inc., a Georgia Corporation; Does 1-20, 2006 WL 6005417






Direct History (1)












Order Reversed by





Title Court Date





