Blogging Bayport Alameda

February 28, 2012

Protect ya neck

Filed under: Alameda, Alameda Point, City Council — Tags: , — Lauren Do @ 6:02 am

I had meant to write about this a while ago, but something always came up and managed to capture my attention before I could get around to it. A few weeks ago the City put out a press release which indicated that the federal judge in the SunCal suit had dismissed a portion of SunCal’s case where SunCal was seeking damages in the amount of $100 million.

United States District Court Judge Charles Breyer tossed that portion of the case because SunCal was seeking future profits and it was speculative that SunCal would have received those profits since the development plan had not been approved.

This, of course, is really good news for the City because now it only has to deal with the portion of the case that deals with the amount of money SunCal claims to have spent on pre-development costs and whether they are eligible for reimbursement based on how everything shook down in Alameda post Measure B’s demise.

But that’s not the juicy part of the hearing up to that particular ruling.  Really long post ahead, you’ve been warned.

So the juicy part has to do with former Interim City Manager, Ann Marie Gallant, who has her own lawsuit against the City even as she is being defended by a City retained lawyer in the above SunCal case.    Here are a few interesting bits from the court transcript, just to lay out the cast of characters: The Court is, well, the Court. Mr. Procel is the attorney for SunCal and Mr. Friedman is Ann Marie Gallant’s lawyer.

THE COURT:… Likely, the more interesting question is what to do about Gallant.


THE COURT: Because I think that the — it was called the staff report. I think the staff report is protected.


THE COURT: I’m not sure anything else is.

MR. PROCEL: Thank you.

THE COURT: And I was going to simply — I was going to protect the — I was going to take out the staff report. And as to all the other conduct, I wasn’t going to rule on any of that until it came up in the context of a motion — of a summary judgment motion, to see what there really is and what there isn’t.

And I’m not saying that — because the lines are very unclear as to — as to what conduct would fall outside and what conduct would fall inside.

I’m sure defense says it’s very clear that all of this falls within the ambit. I don’t think it does. I don’t know how much falls outside, if any. I’ll give you that. If any. But I actually do think that there’s — there are things that clearly would fall outside.

But rather than my drawing a line now, I’d want to hear a full factual exposition: This happened. This happened. This happened. This happened. See whether those are in dispute, and then take a look at it at that point.

I find her conduct extremely troubling or troublesome. But the law protects certain aspects of it and doesn’t protect other aspects of it.

And, by the way, these are allegations. I appreciate that. But I was going to simply leave for another day and another type of motion the issue of whether anything other than the staff report falls within the protected area.

MR. FRIEDMAN: …as the Court saw, the standard is very broad as to what kind of conduct is brought in the scope. And there the Court explained that so long as the conduct has a logical relationship to the legislative proceeding or was made to achieve the objects of the legislative proceeding, it falls within the protection.

And here the third amended complaint has stepped right into that scope by alleging expressly that all of Gallant’s conduct was a part of a grand scheme culminating in the July 2010 — 2011 city council proceeding to oust the —

THE COURT: The grand scheme is not protected.

MR. FRIEDMAN: The grand scheme —

HE COURT: Any more than conspiracy to commit murder is protected. I mean, if there were no — you don’t have a privilege that protects a grand scheme. You have a privilege to protect a legislative process. And the staff report was clearly within the privilege of protecting the legislative process.

And they don’t — because they say that the staff report, among other things, was part of a grand scheme doesn’t mean the other things, therefore, should be protected because you’re protecting the staff report which is part of the grand process which is part of the legislative scheme.

I mean, otherwise, nothing — otherwise, there’s immunity for everything you do, no matter what it is, how it’s related, as long as it’s, quote, related to a grand scheme. [emphasis added]

Essentially in order to decide what acts are protected under legislative privilege and what were not there’s going to be a huge rehashing of the when, where and how everything went down.  Mostly about the when.   Then when the court has AMG’s lawyer touch on discretionary immunity that AMG may have had he pulls out a case called Curcini and says that the case is on point to the SunCal case:

THE COURT: It doesn’t sound all that familiar because this case involved allegations of destruction of e-mails, destruction of documents.

MR. FRIEDMAN: Which is not the fraud claim, Your Honor. They’ve thrown a bunch of stuff against the wall as red herrings to try to paint a picture of a bad person.

THE COURT: By the way, in that regard, they certainly succeeded.

MR. FRIEDMAN: Well, that they paint that picture. But what’s at stake here is the fraud claim. And just because they make an allegation that she destroyed evidence, that’s not relevant to the question of the fraud claim.

THE COURT: It’s not?

MR. FRIEDMAN: It’s not. There is no allegation —

THE COURT: Do you agree with that?

MR. PROCEL: Respectfully, no, Your Honor, I don’t agree with that, and here’s why.

I think the Curcini case is very relevant to what happened here. And in that case, what the Court did is it first applied 820.2 and found that the conduct fell within that. Then the Court went and looked at 822.2 to determine whether there was fraud or corruption.

And that’s what we need to do in this case. And the distinction here is that we have more than alleged corruption. There was some conclusory — the Court found and used the term “conclusory.” And the Court found that the plaintiff’s complaint made conclusory allegations that their bid was not considered fairly.

We have alleged much more than that, as Your Honor points out. We’ve alleged misrepresentations going back a year before the legislative proceeding. We’ve alleged secret meetings with the Navy. We’ve alleged secret meetings with other contractors.

More importantly, we’ve alleged destruction of evidence. We’ve alleged overbilling, deliberate overbilling and defrauding a client.

Those are issues and facts that were clearly not present in that case. And, more importantly, the most salient fact here is that defendant Gallant is alleged to have engaged in this conduct for the purpose of usurping and utilizing $17 million worth of plaintiff’s work for her own benefit.

If that isn’t corruption, I’m not sure what is. And,in fact, defendant Gallant did do that. The complaint clearly alleges that after — about three weeks after the vote in this case on July 20, 2010, she used — she and the city used entire portions of SCC’s work and claimed it as their own.

And of course this back and forth between the lawyers served to only highlight the need — according to the judge — of a complete record of the events to determine what parts are relevant.


  1. Prediction: the judge will eventually dispose of the whole lawsuit through summary judgment, and will only retain the fraud portion if Suncal provides more facts. AMG put the city in a dangerous financial position.

    Comment by Really? — February 28, 2012 @ 6:18 am

  2. Wow! It would be interesting to know what her attorney pal Highmsith’s role was in this as well. It seems to be of little doubt that they acted in concert (AMG apparently even lived with TH).

    By the way, some stench from the TH regime is gone for good after today as the talk around City Hall is that the Deputy City Attorney pal (and liability) that TH hired has been dismissed after some good longtime work by the current CM, the Interim and also current City Attorney. A really good day for the City indeed and progress for sure to rid the City of Deputy Attorney Zagaroli.

    Comment by Target 2013 — February 28, 2012 @ 11:01 am

  3. I understand the glee with which some of you witness AMG being on the hot seat but let’s not forget that this case is about whether or not the City is on the hook for SunCal’s expenses. A big lose for AMG, in this case, means a big lose for Alameda. And then we get to see if blind old lady Justice turns around and hits Alameda again with doing AMG wrong. A happy day for Alameda? Yeah, right.

    Comment by Denise Shelton — February 28, 2012 @ 11:58 am

  4. MR. FRIEDMAN: Which is not the fraud claim, Your Honor. They’ve thrown a bunch of stuff against the wall as red herrings to try to paint a picture of a bad person.

    THE COURT: By the way, in that regard, they certainly succeeded.

    #3 “…if blind old lady Justice …” …Blind, eh?

    Comment by Jack Richard — February 28, 2012 @ 12:16 pm

  5. Denise: Actually if the court determines that AMG committed fraud or corruption, the City has a pretty darn good defense case against her personal case against the City. You can’t be retaliated against for “whistle-blowing” if a court finds you culpable for fraud or corruption.

    The best case for the City is if this court does find AMG culpable for fraud or corruption, but not enough that it makes the City itself liable for the pre-development costs. In turn, the City has a pretty good defense in AMG’s case against them if the SunCal court’s judge makes that finding as to AMG’s actions.

    Comment by Lauren Do — February 28, 2012 @ 12:20 pm

  6. Her defense attorney sure didn’t have anything in his back pocket for any counter defense. A lot was thrown as options because she provided many culpable acts.

    Comment by Just as Vigilant — February 28, 2012 @ 12:52 pm

  7. Let us hope if she did what they claim, that she acted alone, or just with TH. If SunCal can prove she did this stuff and others were working with her (elected officials, for example) we would be in deep doo-doo.

    Comment by Kate Quick — February 28, 2012 @ 4:00 pm

  8. (2)Target2013: Ooh! You don’t like L. Zagaroli either? Tell me more! Filed a complaint against her with the State Bar for obtaining a warrant under false pretenses myself. She’s a piece of work.

    Comment by vigi — March 1, 2012 @ 12:27 pm

  9. Lauren, I’m extremely curious………Where did you get your quotes? The court documents have not been made public!! Was it one of your buddies at SunCal?? You appear to be on a very slippery slope, might want to think about it before you post more of your slanted opinions.

    Comment by Dr Poodlesmurf — March 2, 2012 @ 7:46 pm

  10. Yes, Poodles, Lauren Do has secret agents stashed away in many dark corners ferreting out top secret information to feed to SunCal who she wants to come back and take over our entire Island home. She feeds them on curds and whey and they play with her spider. LOL

    Comment by Kate Quick — March 2, 2012 @ 9:59 pm

  11. Kate — save your corn for someone just as foolish as yourself … I want a real answer to a real question!

    Comment by Dr Poodlesmurf — March 2, 2012 @ 10:09 pm

  12. Poodlesmurf’s opinions aren’t slanted? somebody who anonymously uses such a moniker and screams “conspiracy!” and “corruption!” at every turn but with no regard for corroborating evidence isn’t a fool? Dr., the bar you set for discourse is from a game of limbo.

    Comment by M.I. — March 3, 2012 @ 9:33 am

  13. But Poods, it isn’t a serious question. It is snide innuendo. You need to work up a really good question based on some facts and pose it to be taken seriously.

    Comment by Kate Quick — March 3, 2012 @ 9:35 am

  14. Kate: Try this again! The court transcript HAS NOT been released! Wake up — that is FACT!

    M. I. You are a shallow thinker who uses too many words … a real Quibblemeister

    Comment by Dr Poodlesmurf — March 3, 2012 @ 9:40 am

  15. Poods, have you directed an inquiry to Lauren or others to ask them about their access to the document before you accused them of skullduggery? What are you relying on to prove that no one has access to the court information?

    Comment by Kate Quick — March 3, 2012 @ 9:23 pm

  16. Kate, first of all, it’s Dr. Poodlesmurf and I don’t owe you an explanation. Lauren is the one that has questions to answer.

    Comment by Dr Poodlesmurf — March 3, 2012 @ 9:47 pm

  17. Also, I was going to ignore this because honestly any response would make me appear defensive, because technically, I don’t owe you an explanation either unless you want to cite something that shows that the information is not publicly available.

    Comment by Lauren Do — March 4, 2012 @ 7:09 am

  18. Poodles, if you accuse somebody of something it is certainly “on you” to say how you verified your accusation. You are not the victim here; the person you accused is. I would like the innuendo and false accusation nastiness to stop, and demanding you reveal how you know what you say you know is one way to stop it.

    Comment by Kate Quick — March 4, 2012 @ 8:29 am

  19. 16. let’s see. A corporation loses a court ruling so they then leak the court transcript to a blogger who reads it and comes to the following conclusion:#5 ” Actually if the court determines that AMG committed fraud or corruption, the City has a pretty darn good defense case against her personal case against the City. You can’t be retaliated against for “whistle-blowing” if a court finds you culpable for fraud or corruption.

    The best case for the City is if this court does find AMG culpable for fraud or corruption, but not enough that it makes the City itself liable for the pre-development costs. In turn, the City has a pretty good defense in AMG’s case against them if the SunCal court’s judge makes that finding as to AMG’s actions.”

    Wow, what a big boost to SunCal’s position. But I’m a shallow thinker. Beats being an moron.

    Comment by M.I. — March 4, 2012 @ 9:07 am

  20. In almost every case, you have to read between the lies

    How do you get a group of Attorneys representing the City of Alameda to smile for a photo?

    A: Just say, “Fees!”

    B: We Have a New City Manager

    C: We Have a Election Coming Up

    Isn’t it a shame how 99% of the lawyers give the whole profession a bad name.

    The Postal Service just had to recall their latest new stamp issue. Lawyers were part of the design and people couldn’t figure out which side to spit on.

    Three Wishes
    A man walking on the beach came across an odd-looking bottle. Not being one to ignore tradition, he rubbed it and, much to his surprise, a genie actually appeared. “For releasing me from the bottle, I will grant you three wishes,” said the genie.
    “But there’s a catch,” the genie continued. “For each of your wishes, every lawyer in the world will receive double what you asked for.”
    First, the man wished for a Ferrari. POOF! A Ferrari appeared in front of him. “Now, every lawyer in the world has been given two Ferraris,” said the genie. “What is your next wish?”
    “I could really use a million dollars.” replied the man, and POOF! One million dollars appeared at his feet. “Now, every lawyer in the world is two million dollars richer,” the genie reminded the man, and then asked him for his third wish.
    The man thought for a minute and said, “Well, I’ve always wanted to donate a kidney.”

    Comment by John — March 4, 2012 @ 12:37 pm

  21. Aren’t Weekends Great!

    Are blondes smarter than lawyers? You be the judge.

    A blonde and lawyer are seated next to each other on a flight from LA to NY. The lawyer asks if she would like to play a fun game. The blonde, very tired, just wants to take a nap, so she politely declines and rolls over toward the window to catch a few winks. The lawyer persists (as lawyers are wont to do) and explains that the game is easy and a lot of fun. He says, “I ask you a question, and if you don’t know the answer, you pay me $5.00 and vice versa.”
    Again, she declines and tries to get some sleep.
    The lawyer, now agitated, says, “Okay, if you don’t know the answer you pay me $5.00, and if I don’t know the answer, I’ll pay you $500.00.”
    This catches the blonde’s attention and, figuring there will be no end to the torment unless she plays, agrees to the game.
    The lawyer asks the first question, “What’s the distance from the earth to the moon?”
    The blonde doesn’t say a word, reaches in her purse, pulls out a $5 bill and hands it to the lawyer.
    “Okay,” says the lawyer, “your turn.”
    She asks the lawyer, “What goes up a hill with three legs and comes down with four legs?”
    The lawyer, puzzled, takes out his laptop computer and searches all his references, no answer. He taps into the air phone with his modem and searches the net and Library of Congress, still no answer. Frustrated, he sends e-mail to all his friends and coworkers, all to no avail. After an hour, he wakes the blonde and hands her $500.
    The blonde says, “Thank you,” and turns back to get some more sleep.
    The lawyer, more than a little miffed, wakes the blonde and asks, “Well, what’s the answer?”
    Without a word, the blonde reaches in her purse, hands the lawyer $5.00, and goes back to sleep.

    Comment by John — March 4, 2012 @ 12:57 pm

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