Protect ya neck

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.

MR. PROCEL: Okay.

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

MR. PROCEL: Sure.

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.