Sweet and demurrer

Last week, John Knox White broke the news that the City of Alameda has a fairly significant ruling in the Kapler v. City of Alameda and everyone else case.

As a reminder, former Fire Chief David Kapler filed a lawsuit against the City (and various current and former public officials) for a variety of assorted reasons which simply boils down to him being pissed off because he was let go after a very public scuffle over his gas usage.    In addition to suing the City of Alameda as a whole, David Kapler has gone after former City Manager Debra Kurita, Interim City Manager Ann Marie Gallant, and City Councilmember Lena Tam as individuals.

The City hired outside counsel to help on this particular case and interestingly enough the same attorney who drafted the report which lead the City Council to vote to reimburse Councilmember Lena Tam for her legal expenses in the whole Colantuono affair, is defending the City — as well as the Interim City Manager who brought us all the Colantuono investigation — from this civil suit.

Anyway, as attorneys tend to do when one attorneys throws the kitchen sink at you, your response is apparently to throw one back.   So, as part of the City’s demurrer to the complaint they made three motions: (1) anti-SLAPP, (2) instant demurrer to all causes of action, and (3) strike the three individual defendants and causes of action against them.

Anti-SLAPP, for those that remember, way back when Action Alameda’s David Howard sued John Knox White for defamation for a comment he made on this site in small claims court.   John Knox White attempted to use the anti-SLAPP  to point out that David Howard’s lawsuit was frivolous and the point of the defamation suit was to intimidate a perceived political foe into silence.   While JKW lost on the anti-SLAPP front, David Howard also lost on his defamation lawsuit which he has since tried to inexplicably spin into a win for himself.  Edited to add:  losing an anti-SLAPP case does not mean that you have lost the case as a whole.   If JKW had lost the case, the judge would have found his liable for defamation.   Apparently this wasn’t clear from how I had initially written this.  Given that JKW was the most prominent of all the individuals that David Howard had threatened with defamation lawsuits at the time, he was the obvious choice for an initial lawsuit alleging defamation.   Anyway, anti-SLAPP is a mechanism that is sometimes used to penalize a plaintiff who is only filing a frivolous lawsuit to get someone to shut up and doesn’t necessarily care about the outcome of the case.  It’s the fear and cost of the lawsuit itself that is the point of the lawsuit, and that was not the intent of our judicial system.  But I digress.

Anyway, the City’s Attorney (not the City Attorney) threw in this anti-SLAPP motion which was a bit of a stretch, but a good attempt nonetheless.   On Monday, the judge in case denied that motion in the City’s demurrer.

However, going back to the initial post written by JKW, the City — and the individually named defendants — did get a significant win if the tentative ruling holds with regard to the instant demurrer.   Essentially the City’s Attorney contends that the judge should essentially dismiss the entire complaint as is because Kapler and his attorney failed to state a valid cause of action.   The judge has given Kapler  ten days to amend his complaint, but he cannot add any new causes of action in the amended complaint.   Also, given that Kapler’s attorney sent in these last batch of documents after the deadline of July 7, (by the way, the deadline was an extension given by the judge to the Kapler’s attorney in the first place) the judge warns the attorney that if this happens again she could be looking at monetary sanctions.

So if the amended complaint is as weak as the initial complaint, the City may have one lawsuit in its rear view mirror.   You can dig through the complaint and filings on Domain Web, the case number is HG11570933.

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