It appears that former Interim City Manager Ann Marie Gallant’s case against the City of Alameda is heading into its final stages. Last Thursday there was a hearing to consider the City of Alameda’s Motion to Strike the whole of Ann Marie Gallant’s complaint against the City given the ruling from the Appeals Court which said that the Anti-SLAPP statute did apply in this case.
The new judge in this case uploaded a “(Proposed) Order and Judgment On Defendant’s Motion to Strike” on Tuesday of last week. As of today it is still “tentative” meaning that the ruling is not yet final, but if it does become final it is bad news for Ann Marie Gallant. From what I understand Ann Marie Gallant’s attorney appealed the proposed judgment from the Judge, naturally, so there is another hearing scheduled 90 days out because that’s how long the Judge has to change his mind or not change his mind.
Let’s get to the good stuff though, the proposed ruling, of course this can all be found on the Domain Web website, just type in case RG11590505. I did, however, create a PDF for your reference because the java viewer is really obnoxious. It’s only 11 pages long (well 10 because the last page is the signature page) and most of it is reciting facts that we all already know.
Here’s the proposed judgment:
1. Plaintiff’s Complaint shall be dismissed in its entirety with prejudice;
2. Judgment shall be entered in favor of Defendant;
3. Pursuant 10 Code of Civil Procedure Section 42S. 16( c ), Defendant is entitled to recover from Plaintiff, and is hereby awarded, its attorneys’ fees and costs incurred in connection with this action. The amount of attorneys’ fees shall be determined upon the filing of a noticed motion pursuant to California Rule of Court 3.1702.
Essentially that means that everything that happened with David Kapler‘s case applies to Ann Marie Gallant’s case too. As a reminder the award to the City against David Kapler was legal fees in the amount of $260K. Plus whatever David Kapler had to pay his own attorney.
Here are some other relevant passages, these have to do with Ann Marie Gallant’s claim that she was terminated rather than it expiring per her contract:
The Court concludes the Plaintiff’s employment contract was not terminated; rather, it expired in accordance with the terms of Section 2 thereof.
The “Section 2″ is:
Section 2 of the contract provides the City with two options:
a. Automatic renewal in 90-day increments on completion the 24-month period; or
b. Non-renewal upon ninety days written notice.
Plaintiff’s arguments to the contrary – all based on statements and actions she attributes to certain council members, and on her being placed on paid leave – are unavailing.
a. As to the various statements, etc., there is no dispute that none of them resulted in any official action other than possibly the decision to do what Defendant had the obvious legal right to do: decline to renew Plaintiff two-year interim contract.
b. As to the administrative leave, Defendant has proffered valid reasons why the task of recruiting and selecting a permanent City Manager should have been given to others, Plaintiff having done nothing about it for most of her interim tenure.
This next set has to do with Ann Marie Gallant’s claim that she was retaliated against for being a “whistleblower”:
11. As the Court has concluded that Plaintiff was not terminated by Defendant, the inquiry may end here.
12. However, the Court notes the lack of probability that Plaintiff can meet her burden to provide a prima facie showing on at least some of the other elements of this cause of action. She has not shown, for instance, that she herself made any relevant disclosures about Council Member Tam falling within the ambit of the statute. Rather, the evidence is that another party, Defendant’s retained outside counsel, did so.
13. Also, Defendant casts real doubt on the question of whether Plaintiff belief that her information revealed a violation of applicable law could have been objectively reasonable, given the ultimate outcome of the investigation.
And why that “Interim” status is an important distinction:
Plaintiff’s allegation that the failure to renew her term- limited contract as Interim City Manager violates this section of the City Charter is without merit. Had she held the permanent position of City Manager and been fired within 90 days of the new city council taking office, she clearly would have been covered by Section 2-2. She was not permanent and therefore was not covered.
Fun fact, this case was first filed in August of 2011 which means that it took nearly three years to wrap up given that the final decision won’t be made until May, then there will still need to be another motion to determine how much is owed.