Bracing for impact

Tonight, City Council has the impact report for the Neptune Pointe/McKay Avenue ballot measure in its hot little hands and there’s nothing really shocking in it.  I imagine that anyone on the side of the ballot measure feels as though the possible impacts were overstated, but it’s not too alarmist.  For example I found this portion interesting when discussing the three possible ownership scenarios:

Even a Federal Government lessee is not required to obtain a permit from a city in compliance with local zoning ordinances. For instance, the United States Postal Service need not comply with local zoning regulations in construction of a post office on land owned or leased by the Federal Government

When I mentioned that the impact report was not overly alarmist, this was one of the points I was thinking about.  Using the Post Office as an example of a possible lessee was pretty benign, but a lessee doesn’t necessarily have to be a government agency.  It could be anyone, including, say, a private developer.   Of course the big hangup is the question about McKay Avenue itself as the whole condemnation thing is winding its way through the courts.

Universal appeal

A few weeks ago former Interim City Manager Ann Marie Gallant filed an appeal after the adverse judgment she received in her lawsuit against the City of Alameda.  She hired a new attorney and everything because I guess she’s going to fight this judgment to the very end as opposed to taking the former Fire Chief David Kapler route of simply accepting defeat and not possibly making things a whole lot worse.

Disappointingly the Alameda County Superior Court Domain Web (that’s the look up tool) moved from a completely free, albeit super clunky website, to charging to just look at the documents now.

Recoup d’état

Earlier last week I wrote about the proposed judgment that was issues in the case of Ann Marie Gallant v. the City of Alameda.   To recap, Ann Marie Gallant, Interim City Manager, was given noticed at the 90 day mark that her contract as the Interim City Manager would not be renewed.  There was a clause in her contract that said that if notice was not given by the 90 days her contract would auto renew for another 90 days.  Because that 90 days coincided with the installation of a new City Council, Ann Marie Gallant eventually sued the City of Alameda saying that they were not allowed to take that action and/or the action was politically motivated and therefore illegal as well.

The Judge in the lawsuit wrote up a proposed judgment earlier in February and had 90 days to reconsider his decision.  It didn’t even take a month for him to decide that his decision would stand and on Valentine’s Day he made his decision final.  As in Ann Marie Gallant essentially is in the same position that former Fire Chief David Kapler found himself in after he sued the City and lost.

Anti-SLAPP happy

Ack!  It totally slipped my attention that I was going to eventually dedicate a post to former Interim City Manager Ann Marie Gallant’s appeals case.   To refresh your memory, former ICM Ann Marie Gallant filed a lawsuit against the City for wrongful termination.  The City filed an anti-SLAPP (strategic lawsuit against public participation) motion asking the court to dismiss her case because the action of the City Council was a legislative act which is protected speech.  The lower court judge didn’t understand who anti-SLAPP applied, said it wasn’t an anti-SLAPP case and the City’s lawyers appealed.   By the way, this is the exact same thing that happened in the David Kapler case: suit, anti-SLAPP motion, anti-SLAPP motion ruled against in lower court, City appeals, appeals court says lower court is wrong.

Here’s a snippet of what the City’s appeals case looked like.

So like the David Kapler case the appeals court ruled that in the Ann Marie Gallant case, the action that the City Council took was a protected activity:

Domino effect

In this case, the first domino to fall was Alameda after losing at the appellate court level, but has been granted a reprieve in the form of a re-hearing at the appellate court level.   As I mentioned on Friday, in response to the first Appeals Court decision, Assemblymember Rob Bonta has introduced legislation that would allow for “rational classifications” to be included when structuring school parcel taxes.   While some may cynically view this as a self-serving piece of legislation to further Rob Bonta’s political career — and seriously people, I don’t know how some of you go through life thinking the worst of everybody and everyone.  I mean, I’m not super naive or anything but the levels of cynicism that exists is breathtaking sometimes, but I digress — this has become an issue that extends way past the borders of Alameda.

The same law firm that took up the Borikas case has gone to practically every single jurisdiction that he could possibly muster and is now suing a bunch of other school district, from the Hayward Daily Review:

On the heels of the precedent-setting court victory, attorney David Brillant is seeking to invalidate four parcel tax measures approved on the November ballot in San Leandro Unified, West Contra Costa Unified, Davis Joint Unified and a group of five districts in Los Angeles County. Brillant filed the suits in the county courts in January, just before the 60-day statute of limitations following the election was up, he said. His clients, which vary from case to case, are commercial property owners in each district.

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.

Runaway jury, without the jury

Another blog is “breaking” the news that — ohmigod — the Borikas lawsuit is headed to trial.   As though in a few months registered voters throughout Alameda County would be groaning in agony upon receipt of their jury summons and that David Brillant, the attorney for the Borikas, would be putting on his best Jack McCoy hat and nail the School District’s star witness on the stand and make them break out into confession and tears.

But, it’s sort of not as dramatic as that.   It’s all pretty ho hum in that Borkias’ lawyer David Brillant is still working the same angle of: “uniform means this to me.”   Even though that argument didn’t really fly the first time around with this judge.   And in this trial, Judge Kenneth Mark Burr will be the final arbiter in whether Borkias’ argument holds any weight at all.

Risk Management Business

Scooping all others, JKW over at SDR has updated us all that the Dr. Zehra Attari lawsuit has been settled.   Click the hyperlink for background on the lawsuit.

When all was said and done the the parties were able to get together and negotiate a settlement of $2.25 million which, according to both JKW and Michele Ellson over at the Island, will be covered by insurance or in this case the California Joint Powers Risk Management Authority.

Judgement summary

As mentioned by several folks over the weekend, the judge in the Borikas case has made tentative ruling in the Borikas case.   What happened was that the Plaintiff Borikas (or rather his lawyers) asked the courts for summary judgement saying basically that: hey! we got this one here, the defendants have no leg to stand on, so let’s get this show on the road and spare us all a lot of time and money.

But the judge, made a tentative ruling saying: not so fast there cowboy, highlights of the language, paragraph breaks added:

…Plaintiffs do not show that the Legislature intended for the word “uniformly” to have a different meaning in Government Code section 50079 than the meaning ascribed to it in other areas of taxation. That fact that the legislature enacted section 50079 in order to create an exception to Proposition 13 does not, on its face, show that a more limited definition of the word uniform was intended. Plaintiffs do not explain why the circumstances surrounding the enactment of the statute support their interpretation of the word “uniformly.” Assuming that the legislature did not intend the word “uniformly” to have its usual meaning when used in a taxing scheme, Plaintiffs do not explain what type of “uniformity” the Legislature intended to require.