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A Family (Genovese) Affair?
"Plaintiff has presented evidence that he was terminated because the Mayor's office lacked trust in him. (See Plaintiff's Notice of Lodgment ("PNOL"), Exhibit 5, page 21:14-19.) Further, the evidence suggests Mayor's office stated it lacked trust in Plaintiff before the budget issues arose, by at least two months. (See PNOL, Exhibit 5, pages 21:25-22:10, 44:1-12, and 45:1-6.) Beth Murray, Plaintiff's replacement, also testified that Deputy Chief Anderson, COO Goldstone, and the Mayor were angry with Plaintiff for giving the SDPD/FBI report to the Ethics Commission. (PNOL, Exhibit 5, pages 72:3-74:8.) There is evidence that the Mayor's office became concerned it would be dragged into the investigation. (PNOL, Exhibit 5, page 69:17-70:15; and Exhibit 8, page 19-22.) Additionally, Plaintiff has presented evidence that the Mayor was a support of Marco LiMandri, and that Marco LiMandri was a financial supporter of the Mayor. (PNOL, Exhibit 8, pages 35:18-37:14.) Finally, there is evidence that Defendant's employees told Plaintiff to stop cooperating with the SDPD and FBI. (PNOL, Exhibit 8, pages 15:17-32:6.)" "All of this evidence creates a triable issue of material fact regarding whether Plaintiff's decision to provide the SDPD/FBI report discussing potential conflicts of interest in City business factored into the City's decision to terminate Plaintiff." [From last night's tentative ruling denying Defendant's MSJ] Imagine that. Fact IS stranger than fiction in Enron by the Sea, with hints of OC/DI and LCN involvement and confirmation of FBI investigators being ankle-tackled by our own DA... and all right before hiz honor's sales tax proposal comes to a public vote. The real question: Are all of us voters paying any attention before we agree that we'll pay the increased sales tax to cover legal costs stemming from what appears to have been a mayoral conniption fit at City Hall?— October 15, 2010 1:52 p.m.
The Blur Between Southwestern College and Foundation
As a City College student president during AB 1725 implementation in the late 1980s, I was properly inculcated in shared governance, and I insured there were students seated at the College Executive Council along with the deans and faculty senate president, and on numerous college and district master planning, accreditation and other policy-setting committees. Through our participation in California's Students Association of Community Colleges, we even had access to policy-making in Sacramento, where it was a good year for me if I could save California community college students tens of million in fees not being passed by the legislature by getting an enrollment fee increase killed in a state education subcommittee. My understanding of things now is that the Community College League of California has totally phased out student participation in college governance, in favor only of community college governing boards and campus faculty senates. Not just students but all taxpayers should demand that our community colleges prepare students to fully participate in society, even to help make decisions relating to campus governance. Otherwise, we end up with institutions that do not obey the law because they ignore students who point out the law. This is a damn poor thing to be teaching community college students, especially at a campus like Southwestern College where so many students are the first in their families to go to college as an entry into the middle class. If we don't train honest educated leaders in our own tax-funded community colleges, then we continue to get the kind of California governance as it exists now.— October 14, 2010 10:27 p.m.
Tentative Ruling: Judge Won't Throw Out Kessler Suit
RE "I still predict that Pudge Sanders will not have to appear for the deposition or testify in court": It is quite possible that the deposition of hiz honor has already taken place. See the tentative ruling as to the details I did NOT post above, then compare with the tentative ruling to deny hiz honor's protective order to see what was missing back then but available for consideration now. Also, summary judgment can be postponed to obtain necessary depositions (refer back to court's discussion in denying protective order) because filing paperwork several weeks ago to oppose summary judgment without that stuff would have been... short-sighted. I am no lawyer but I say from experience: it would have been very professionally short-sighted. Kessler's attorney can read the Code of Civil Procedure, and from the language I posted earlier, there was enough evidence presented (that was not available for previous denial of protective order) for the Court to differentiate hiz honor's behavior from that of anyone else working for the City of San Diego and supervising Kessler. Right now, if it does go to trial, it looks like Kessler prevails... especially in light of Visduh's comments on consequences above.— October 14, 2010 9:21 p.m.
City Wants Kessler Suit Thrown Out
RE "I checked and you are incorrect... because Redevelopment funds are based on Property taxes not sales tax..." You just may be right pursuant to Health & Safety Code at section 33670 regarding assessments "levied upon taxable property in a redevelopment project each year by or for the benefit of the State of California, any city, county, city and county, district, or other public corporation... ". Furthermore, you may have just shown us the way to kill off CCDC and SEDC by strangulation: stop taxing property and just impose sales taxes to make up the difference. HOWEVER California law distinguishes between real property and other forms of property throughout the Codes AND the definitions in the division of the Health and Safety Code that refers to redevelopment agencies DO NOT REDEFINE THE UNMODIFIED NOUN "PROPERTY" OR "REAL PROPERTY" BUT DO REFER IN PLACES TO "REAL PROPERTY", implicitly incorporating any applicable definition from elsewhere in the California Codes. Section 33670 refers to "taxable property" which COULD include a tax on the transfer of all forms of property, and while to most people the meaning is clear, the statute does not appear to directly prevent inclusion of sales taxes on any form of taxable personal or other non-real-estate property BECAUSE IT FAILS TO INCLUDE THE ADJECTIVE "REAL". A clever CCDC lawyer would make some grand complex argument that "levied each year" really means "levied periodically or at any time" or anybody flipping properties really fast could cause a municipality to withhold some portion of tax increment money that the law would otherwise give to redevelopment agencies, then argue that all forms of property that are taxable at any time must be included in the tax increment calculation per H&SC section 33670. This is gonna require a search into H&SC section 33670 case law for clarification...— October 14, 2010 8:59 p.m.
Tentative Ruling: Judge Won't Throw Out Kessler Suit
RE 23: It gives an honest attorney another chance to pull an all-nighter to prepare oral arguments... but the thing about summary judgment is that if one isn't fully prepared to do battle before actually going to trial, then one should not move for summary judgment of the whole or in the alternative, summary adjudication of part of the case.— October 14, 2010 8:07 p.m.
Tentative Ruling: Judge Won't Throw Out Kessler Suit
To find the tentative ruling, go to the San Diego Superior Court website and select CIVIL from the main menu options; the dropdown menu should include a TENTATIVE RULINGS option. All you need at that point is the case number: 37-2009-00092899-CU-WE-CTL ... stuffed into this page: http://www.sandiego.courts.ca.gov/v3tr/scsdruling…— October 14, 2010 8:03 p.m.
Tentative Ruling: Judge Won't Throw Out Kessler Suit
Whether the matter goes to trial (hoping it will) or not, we now know a number of things that are contained in the tentative order. I doubt that there will be a reversal tomorrow, as the Court appears to have pretty much failed to buy into arguments by the City of San Diego regarding a non-retaliatory reason for firing Kessler. From the tentative ruling (parts left out may be juicy with details): "Defendant City of San Diego's motion for summary judgment or, alternatively, summary adjudication is denied." .... "The parties agree that in order to establish a cause of action for violation of Labor Code § 1102.5, a plaintiff must show (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the two. It is then the defendant employer's burden to provide a legitimate, non-retaliatory explanation for its acts. Once this has occurred, the plaintiff employee must establish that the employer's explanation is merely a pretext for retaliatory termination. (Patten v. Grant Joint Union High School District (2005) 134 Cal.Appl.4th 1378, 1384; and see Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)" "Defendant argues, among other things, that Plaintiff is unable to establish a prima facie case because he cannot prove causation. Of note, Defendant's focus on causation indicates Defendant concedes that Plaintiff engaged in a protected activity and that Defendant subjected him to an adverse employment action." .... "The Court disagrees with Defendant's position and finds there is a triable issue of fact as to causation. While Defendant's evidence indicates its employees (e.g., COO Goldstone and Deputy Chief Anderson) knew about Plaintiff's cooperation with the SDPD and FBI investigation of City affiliate Marco LiMandri, had no issue with it, and never stopped him from that interaction, Plaintiff's evidence indicates the Mayor's office did and that once the Mayor's office objected, the City did as well." "All of this evidence creates a triable issue of material fact regarding whether Plaintiff's decision to provide the SDPD/FBI report discussing potential conflicts of interest in City business factored into the City's decision to terminate Plaintiff. More specifically, the evidence presented lends credence to Plaintiff's allegation that he was fired not because of budgetary issues, but because he participated in the SDPD/FBI investigation of City matters and passed the related report on to the Ethics Commission. The Court's conclusion as to the first cause of action applies to all four causes of action at issue in the motion." [Discussion of Defendant's "premature case" argument, but prior Ethics Commission complaint not required] "Accordingly, the motion is denied as to this argument as well." ....— October 14, 2010 7:52 p.m.
City Wants Kessler Suit Thrown Out
If Dumanis becomes mayor of San Diego, then I'd rather be a homeless person in the newly independent charter city of La Jolla. I'm pretty sure none of the federal crime victims from Encantostan and Lemon Grove identified during the 2007 UNITED STATES OF AMERICA v. SDG&E trial are included in that county prosecutor's Rolodex. We got a lot better treatment from the County Counsel's office and US Attorney instead, not from the District Attorney.— October 14, 2010 9:06 a.m.
Did Mayor's Blessing Give Away the Proposed Sales Tax Increase Revenue to CCDC?
So far, the FANTASY RECALL at 3-0 in favor of sending hiz honor to an honorary post on state budget talks involving billions for CCDC. After hours at looking, I still can't find any language in the state budget deal that protects the proposed half cent sales tax increase in Prop. D from being raided by CCDC as part of the budget deal blessed by our strong mayor. For that exposure to CCDC seizure, I have to vote no on Prop. D. Apparently, Nathan Fletcher is good for headlines in the election cycle but not so good for open inquiry into local redevelopment funding.— October 14, 2010 8:57 a.m.
City Wants Kessler Suit Thrown Out
RE "Gruenberg knows [after City Attorney lost motion on Mayor's protective order RE deposition] that if he wins the case he is going to be able to have the City cover virtually all of his costs, which could easily total into the 7 figures, and that is just for HIS fees and costs, not counting any judgment liability-this is why you NEVER let a strong civil rights lawsuit get close to a SJ motion": I'm no lawyer. The highest degree I have with honors is in mathematics. But Surfpuppy's comments resonate with me. Dynamic systems in the real world tend to be well behaved when only one variable is changing, and the change is manageable. As a counter-example, BP in the Gulf of Mexico is a study of systemic failure when numerous variables were changing, including the degree of safety sacrificed when multiple corporations chose to cut costs, the minimal to maximum reported amount of crude spilled daily, and the resulting final cleanup and recovery bill that under current management could be tens of billions. With the KESSLER trial pending, Nathan Fletcher's CCDC contribution to the budget on what appears to be a new $8 billion tax increment cap, a sales tax measure that requires mystical faith in civic leaders well after the election to be valid, and the rest of the pension/electricity rate hikes/natural and SDG&E-made disaster conditions, and we've got trouble in the tower of power here in San Diego. The only way any of that litany are manageable by City Hall is to avoid the press, conduct CCDC funding business behind closed doors in Sacramento to avoid open debate by San Diego voters, and pray that the citizens don't have the time to question why none of the Fitch Ratings city council training seems to be making a dent through the armor-plated Redevelopment Agency hats our city council members wear regularly when dealing with off-city-budget billions for developers seeking another public sports stadium for a privately-held NFL franchise. If things go bad at trial, then all Sanders will lose is his chance to be governor; he can take a lesson from Michael Zucchet and go to work for a union afterwards. On the other hand, we will end up picking the continuously increasing tab on Kessler's wrongful termination and the on-going political maneuverings between rogue redevelopment corporations, business improvement districts and City Hall. I WOULD HAVE TO BE INSANE to vote yes on Prop. D to fund any continuation of this... especially since I really can't seem to find the legislative text inserted by Fletcher in the budget deal that prevents CCDC from taking all increased sales tax revenues in CCDC project boundaries for itself if Prop. D. passes, as previously specified for any increased redevelopment area tax revenues as a tax increment by statute. With the all-over-the-map fiscal impact statement from our City Attorney on the proposed sales tax increase, I have no rational basis for supporting it.— October 14, 2010 8:39 a.m.