Professional Documents
Culture Documents
Protective Order Motion - SDOG Opposition
Protective Order Motion - SDOG Opposition
Protective Order Motion - SDOG Opposition
(SBN 99075)
jmmorris@higglsaw.com
2 PAUL J. PFINGST, ESQ. (SBN 112967)
pfingstp@higgslaw.com
3 RACHEL E. MOFFITT, ESQ. (SBN. 307822)
moffittr@higgslaw.com
4 HIGGS FLETCHER & MACK LLP
401 West “A” Street, Suite 2600
5 San Diego, CA 92101-7913
TEL: 619.236.1551
6 FAX: 619.696.1410
7
CORY J. BRIGGS, ESQ. (SBN 176284)
8 cory@briggslawcorp.com
ANTHONY N. KIM, ESQ. (SBN 283353)
9 anthony@briggslawcorp.com
BRIGGS LAW CORPORATION
10 99 East “C” Street, Suite 111
Upland, CA 91786
11 TEL: 909.949.7115
FAX: 909.949.7121
12
Attorneys for Plaintiff,
13 SAN DIEGANS FOR OPEN GOVERNMENT
14
SUPERIOR COURT OF CALIFORNIA
15 COUNTY OF SAN DIEGO – CENTRAL DIVISION
16
SAN DIEGANS FOR OPEN Case No. 37-2019-00015139-CU-MC-
17 GOVERNMENT, CTL
18 Plaintiff,
POINTS AND AUTHORITIES IN
19 v. OPPOSITION TO MOTION FOR
PROTECTIVE ORDER;
20 CITY OF SAN DIEGO; and DOES 1 DECLARATIONS OF STEVE PEACE
through 100 et al. AND CORY J. BRIGGS; SUPPORTING
21 EXHIBITS
Defendants.
22 Date: February 7, 2020
Time: 10:30 a.m.
23 Dept.: 64
Judge: John S. Meyer
24
Complaint Filed: March 21, 2019
25 Trial Date: February 21, 2020
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27
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8 IV. DISCUSSION 8
9 A. No Case Law Supports Issuance of a
Protective Order in a Case Like This. 8
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B. The City’s Declarations Establish No
11 Basis for a Protective Order. 9
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V. CONCLUSION 10
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2
Opposition to Motion for Protective Order
1 TABLE OF AUTHORITIES
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Page(s)
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Cases
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Opposition to Motion for Protective Order
1 Plaintiff, SAN DIEGANS FOR OPEN GOVERNMENT (“SDOG”), submits this
2 memorandum of points and authorities in opposition to the motion for protective order
4 I.
5 SUMMARY
6 The City filed the present motion ostensibly seeking to preclude SDOG and its
7 counsel, Cory J. Briggs (“Briggs”), from using the deposition testimony of two City
8 employees, Gerard Braun (“Braun”) and William Gersten (“Gersten”), “for any purpose
9 other than in connection with this lawsuit.” (Motion, p. 1:22.) The City represents that
10 it is bringing this motion “out of an abundance of caution to prevent the misuse of pretrial
11 deposition testimony and, more importantly, to protect its employees from any
13 interjected into the political fray merely due to their City employment.” (Motion, pp. 1:25-
14 2:1. See also id. at p. 5:4-5 [representing that “the City brings this motion to prevent the
15 potential misuse of pretrial discovery and to protect its employees from being unwittingly
16 drawn into the political arena”]; id. at p. 5:14-16 [representing that the motion “seeks
17 nothing more than to protect unelected City employees from being used as political
18 pawns . . .”].)
22 suggest that SDOG or Briggs would ever use information obtained in discovery for any
23 improper purpose (whether professional, personal, or political), and the City points to no
25 nothing in the City’s moving papers or the accompanying declarations that identifies any
26 sensitive information disclosed during discovery that even might be improperly utilized
27 by SDOG or Briggs. And it is unjustified because there is nothing in the statutes or the
28 case law cited by the City that supports the issuance of a preemptive protective order in
4
Opposition to Motion for Protective Order
1 an otherwise routine case like this one (that just happens to include an attorney who is
2 running for public office against his legal adversary), the City Attorney, Mara Elliott
3 (“Elliott”).
4 SDOG’s discussion, below, exposes the City’s motion for the cynical “hit-job” it
5 is, attempting to poison this Court’s view of the merits of this case. SDOG also exposes
6 the irony of the City falsely accusing SDOG and Briggs of attempting to draw City
7 employees “into the political arena”—and castigating SDOG and Briggs for their
8 supposed willingness to “parlay” City employees into “political rhetoric” (Motion, p. 5:4-
9 7)—when the transparent goal of the City’s motion is precisely to draw this Court into
10 the political arena in an effort to prompt some “headline” the City is hoping to obtain
11 (perhaps about the Court “admonishing” or “gagging” Briggs) for use by the City Attorney
12 as part of her own political rhetoric in her campaign for reelection. In sum, it is true that
13 Briggs has a long history of lawsuits against the City, and legal and personal conflicts
14 with Elliott and her Chief of Staff (Braun), and it is true that Briggs has been (and intends
15 to remain) vocal in his criticisms of the City, the City Attorney, and the City Attorney’s
16 Chief of Staff in his campaign for office. But there is no overlap between that campaign
17 and this lawsuit—except arguably one document, already in the public domain—and no
18 justification in the facts, in the law, or in public policy to issue at this time what would, in
20 against SDOG and Briggs in an attempt to protect information the City has not shown
21 to be private or prejudicial in any way.
22 II.
23 STATEMENT OF FACTS
24 The only facts truly relevant to this motion are that SDOG, through its attorney
25 (Briggs), filed the present lawsuit against the City; that, in the course of this lawsuit,
26 SDOG has taken the deposition of both Braun and Gersten; that trial in the case is
27 presently set for February 21, 2020; and that the City has not presented any compelling
2 such discovery for any purpose other than as would be proper in the context of this
3 lawsuit. (See Declaration (“Dec.”) of Briggs (“Briggs Dec.”), ¶ 3.) On the basis of those
4 facts alone, the City’s present motion for a protective order should be denied.
5 Still, the City’s motion—under the patently false heading “Relevant Facts and
7 himself a candidate for the City Attorney position and then recounting a one-sided
8 history of the conflicts between Briggs and Braun (asserting, for instance, that Briggs
10 engaged in a cover-up of child abuse, and that Briggs accused Braun of being a “leaker”
12 and one-sided anecdotes, the City jumps to the conclusion that there is some credible
13 and imminent risk that Briggs will misuse the discovery obtained in this case in a public
14 forum—something Briggs has never done before—and will use Braun or Gersten as
16 upon them. (See Motion, p. 5:13-16. See also id. at p. 8:14-17 [accusing Briggs, without
18 recklessly interject [Braun] and other city employees into his campaign rhetoric”].)
19 The suggestion is insulting, and the facts alleged in the declarations of Gersten
20 and Deputy City Attorney David Karlin (“Karlin”) reveal nothing—no sensitive
21 information, and no credible concern about improper disclosure—to warrant the
22 protective order the City seeks. But now, SDOG is compelled to include with this
24 percipient witness, Steve Peace) to tell a more complete and more accurate story of the
25 disputes between the parties, and to substantiate the ultimate points that any conflict
26 between Briggs and the City Attorney’s office generally, and Braun in particular, pre-
27 date this lawsuit by many years; and that Briggs has not been the protagonist in his
28 conflicts with Braun, but rather has been the victim of a protracted—and baseless—
6
Opposition to Motion for Protective Order
1 smear campaign by Braun (against Briggs himself, against his clients, and, most
2 offensively, against his wife). In sum, Briggs never has, and never will, abuse the
3 discovery process, and the City’s transparent attempt to embroil this Court in the politics
4 of the parties’ relationship—while pretending to point that finger at SDOG and Briggs—
5 must be rejected.
6 III.
8 The City cites to Code of Civil Procedure section 2025.420, subdivisions (a) and
9 (b), for the threshold authority that permits a trial court to issue a protective order with
11 SDOG acknowledges the statute, which provides that, “[b]efore, during, or after
12 a deposition, any party . . . may promptly move for a protective order,” and that, “for
13 good cause shown,” the court “may make any order that justice requires to protect any
15 (Code Civ. Proc., § 2025.420.) What the City neglects, however, is the heavy burden
16 on the party seeking the protective order to show good cause, and that the trial court
17 must balance the various interests—including the private or public nature of the
18 information and the opposing party’s First Amendment rights—in deciding whether
20 Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318 [where the Court of
21 Appeal reversed a trial court order granting a protective order because the motion for
22 such protective order—like the City’s motion here—“was entirely conclusory and lacked
23 any factual specificity”]. See also People v. Superior Court (1967) 248 Cal.App.2d 276,
26 SDOG explains next that, in this case, the City’s motion and its two conclusory
27 declarations hardly satisfy the high burden necessary to support its request.
28
7
Opposition to Motion for Protective Order
1 IV.
2 DISCUSSION
4 The City’s motion makes perfunctory reference to two cases where trial courts
6 during discovery. (Motion, at pp. 4-5, citing GT, Inc. v. Superior Court (1984) 151
7 Cal.App.3d 748 (“GT”), and Coalition Against Police Abuse v. Superior Court (1985) 170
9 that bear no relationship to the vague, benign, and largely unsubstantiated facts of this
10 case.
12 predatory pricing for their advertisements, with one party seeking “each financial
13 statement, profit and loss statement, balance sheet, financial projection document, and
14 general ledgers for the past five years. (151 Cal.App.3d at p. 751.) The trial court issued
15 a protective order that prevented one party’s attorney from showing that financial
16 information to his client. (Ibid.) With proprietary financial information at stake, the Court
20 situations, the Court of Appeal directed reference to the “good cause standard,” which
21 “enables trial courts to distinguish between proper use of discovery and misuse of
23 The circumstances in Coalition were also extreme. That case involved a group
24 of individuals and organizations who challenged the Los Angeles Police Department’s
25 use of undercover officers. Pursuant to a protective order, the LAPD turned over about
28 documents be returned, and the Court of Appeal affirmed (with a small modification),
8
Opposition to Motion for Protective Order
1 rejecting the plaintiffs’ claims that they needed to retain the documents to monitor future
2 compliance with the consent decree in the case, to pursue ongoing investigations, to
3 release to news media, to use in other litigation, and to participate in continuing public
4 debate on the issue of police spying. (Id. at p. 899.) The Court of Appeal expressly
5 ordered that the plaintiffs “be permitted to retain a copy, and to disclose and
8 Here, unlike the highly confidential and proprietary nature of the documents at
9 state in bot GT, and unlike the highly sensitive and expansive nature of the documents
10 in Coalition, the City makes no credible presentation that there are any confidential,
11 proprietary, or sensitive documents involved in this case. And the only document from
12 this lawsuit that happens to be relevant to Briggs’s campaign is a document that is not
13 privileged and has long been in the public domain. (See Briggs Dec., ¶¶ 9-12.) In sum,
14 this case is simply nothing like GT or Coalition, meaning the City has not established
16 In sum, the burden is properly and sensibly very high to obtain a prior restraint,
17 pretrial protective order on disclosure of discovery documents, and the City has not
20 The City’s motion is supported by only two superficial declarations that reveal
21 nothing but public information and personal aspersions that do not support the City’s
22 alleged “concerns.”
23 First, the declaration of Gersten alleges only that his deposition was taken on
24 October 24, 2019, that he anticipated he would be asked at that deposition about one
25 line of inquiry (having to do with the City’s response to a particular Public Records Act
26 request), that Briggs spent the “vast majority of the deposition” asking about his
27 motivations for “seeking to amend the [Public Records Act]” (as if that substantiated the
28 City’s supposed concerns about embarrassing information), and that Briggs otherwise
9
Opposition to Motion for Protective Order
1 asked what he deemed to be “argumentative” questions, “designed,” Gersten declares,
2 “not to elicit admissible evidence on that issue,” but to “bolster [his] campaign for City
4 Second, the declaration from Karlin is equally benign (though it attaches a stack
5 of inconsequential documents that are never put into context and, in any event, do not
6 bolster the City’s motion). All Karlin adds is that Briggs has indicated an intention to run
7 for City Attorney, that Briggs has written certain articles and op-ed pieces critical of the
8 City Attorney’s office, that Briggs has filed various legal actions against the City, that
9 Briggs has testified on certain matters before the City Council, that Briggs has been the
10 subject of certain news articles, that Briggs has made Public Records Act requests to
11 the City, that Briggs took the depositions of both Braun and Gersten, that Briggs declined
12 to stipulate how he would use that discovery, and that part of Briggs’s political campaign
13 is a promise that, if elected City Attorney, the public “won’t see the Office fraught with
18 declaration—even speaks to the only two questions that matter on a motion like the
20 is a credible risk that, without a protective order, that information will be misused. The
21 answer to both of those questions is no, and the City’s motion must therefore be denied
22 for failure to even mention facts suggesting, let along establishing, good cause.
23 V.
24 CONCLUSION
25 A trial court has a right in very narrow circumstances to issue a pretrial protective
26 order to restrain one from misusing private information obtained during discovery. But
27 the City has not come close to establishing the good cause necessary to support such
2 disclosed in discovery. Indeed, SDOG and Briggs submit, the only reason the City filed
3 this motion was to try to grab a headline from this Court with respect to issues that are
4 far beyond the purview of this case. Those efforts should be denied.
5 For those and all the reasons stated, SDOG respectfully submits that the City’s
10 By: ____________________________
JOHN MORRIS, ESQ.
11 Attorneys for Plaintiff,
SAN DIEGANS FOR
12 OPEN GOVERNMENT
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Opposition to Motion for Protective Order
DECLARATION OF STEVE PEACE
1 DECLARATION OF STEVE PEACE
7 of the matters stated in this declaration, and would competently testify to such
10 to Cory Briggs regarding the efforts by the City, and by Evans and others, to smear
13
16 with John Kratzer of JMI Realty, Richard Lawrence and Pedro Quiroz Jr. of San
17 Diegans for Open Government, and Donna Frye on what would come to be known
18 on the November 2016 ballot in the City of San Diego as Measure D, the “Citizens’
19 Plan” for reforming the City’s tourism-related finances and related matters. Mr.
20 Lawrence, Mr. Quiroz, and Mrs. Frye were represented in the negotiations by
23 represented the San Diego Tourism Marketing District (“TMD”) in negotiations over
24 the language to be included in Measure D when it was finally circulated for voter
25 signatures. During the final face-to-face negotiation session, which ran late into the
26 evening, Mr. Evans and the rest of us decided to go to a nearby Mexican restaurant
27 because we still had a couple more hours of work to do but were famished. While
28 1
2 Evans brought up a different subject. Sitting a couple people away from Mr. Briggs,
3 Mr. Evans said that he had heard many of the stories that Inewsource had been
4 running about Mr. Briggs but had come to realize, from the multiple negotiating
5 sessions, that Mr. Briggs was nothing at all like the person described in those
6 stories.
7 5. Mr. Evans admitted that the TMD was actively working with Mr. Braun
8 and the City Attorney’s Office to smear Briggs’s good name by giving Inewsource
9 information obtained through discovery. Mr. Evans then got up from his seat,
10 walked over to Mr. Briggs, extended his hand to shake Mr. Briggs’s hand, and said:
11 “I realize now that it was wrong for us to go after you and even more wrong to go
12 after your wife. You are an honest, decent person, and I am very sorry for what
14 6. Mr. Briggs shook Mr. Evans’s hand but was visibly shaken and started to
15 cry. Mr. Briggs then went to the restroom, presumably to regain his composure.
16 When he returned and I asked him whether he was okay, he said that he needed to
17 go write down what Mr. Evans had said because he (Briggs) would never be able to
18 tell his wife without breaking down, and then he patted his shirt pocket, which had a
19 folded piece of paper in it that was not present when he left the table. Everyone
21
22 I declare under penalty of perjury under the laws of the State of California that
24
Dated: January 27, 2020 _______________________
25
Steve Peace
26
27
28 2
4 1. I am the sole shareholder of Briggs Law Corporation, the law firm that
5 represents Plaintiff and Petitioner San Diegans for Open Government ("SDOG") in
6 this lawsuit. I have personal knowledge of the facts set forth in this declaration, and
7 could competently testify to such facts if called as a witness.
8 2. I submit this declaration in support of SDOG's opposition to the City's
9 motion seeking a protective order to gag and restrain me from some supposed risk
10 that I might misuse deposition testimony obtained in this case from either Gerry
11 Braun ("Braun"), the non-lawyer Chief of Staff to City Attorney Mara Elliott ("Elliott"),
12 or attorney William Gersten ("Gersten"), in an effort to "annoy," "embarrass," or
13 "oppress" them by "involuntarily interjecting [them] into the political fray merely due
14 to their City employment." (See City Motion, p.i:25-2:1.)
15 3. In short, this declaration substantiates that I have done nothing (in this
16 case or ever) to raise a legitimate concern that I would ever misuse information
17 obtained by way of discovery (in this case or any other); to confirm that, indeed, I am
18 a candidate for the City Attorney's job with legitimate criticisms on which I intend to
19 campaign regarding how the City Attorney's Office is being mis-managed by Elliott
20 and Braun, but that there is no correlation between my campaign for City Attorney
21 and my client's discovery efforts in this case; and to explain that, far from me being
22 the protagonist in a long-running dispute with Braun, I (and my clients and my family)
23 have been victimized by Braun (and others associated with the City) for years, with
24 misguided efforts to paint me falsely as unethical, unscrupulous, and dishonorable,
25 and even to attempt to have me disbarred.
26 Ill
27 Ill
28
5 then be pasted into a campaign ad. I trust that the Court will see through Elliott's
6 misuse of her Office - and taxpayer resources - by bringing this motion. I freely
7 acknowledge that Braun's role in the City Attorney's Office is bad for the public, and
8 seeing integrity, confidence, and transparency restored to that Office is a substantial
9 motivating factor in my running to lead the Office. I also believe, as I have for years,
10 that the public needs to know the full extent of Braun's illegal conduct and other
11 wrongdoing.
12 D. The Single Document of Interest from this Lawsuit Is Already in the Public
13 Domain.
14 9. All but one of the public records that Elliott's office withheld have now
15 been turned over. There is one remaining document, an e-mail communication, that
16 the City is claiming to be subject to the attorney work-product privilege even though
17 it was knowingly and voluntarily given by Gersten to Braun so that Braun could
18 submit it to the California Legislature in support of Senate Bill ("SB") 615. Braun
19 knowingly and voluntarily sent the e-mail communication to the California Legislature
20 containing information about Elliott's reasons for attempting to amend the California
21 Public Records Act ("CPRA") last year to make it harder for members of the public to
22 retain attorneys to prosecute CPRA lawsuits against stonewalling public agencies.
23 10. I came into possession of the e-mail after this lawsuit was filed, when the
24 Legislature responded to a subpoena that my office had issued for communications
25 between the Legislature and the City Attorney's Office concerning SB 615. To my
26 mind, the e-mail confirms that the Office is used by its leadership to go after people
27
28 3
6 19. Shortly after the first story ran, the City Attorney's Office made an
7 emergency application to Judge Wohlfeil to unseal my wife's deposition transcript
8 because of the alleged media interest in alleged conflicts of interest that my firm had
9 in cases against the City; not surprisingly, only lnewsource was interested. The
12 showing that she had not been my wife for the many years that Racine had believed;
13 the uncorrected version contained a typo from the court reporter erroneously
14 suggesting that my wife had been my vice-president for 20 years (longer than I'd
15 even known her, including years before she became my wife).
16 F. The lnewsource Disinformation Campaign Against Me.
17 20. Over the next several months, lnewsource ran a series of attacks
18 against my clients, my family, and me- somewhere around three dozen "stories," as
19 I recall. Some of them erroneously accused my wife and me of filing false public
20 records, such as property deeds in which we called ourselves "husband and wife"
21 even though there was no record of us being married.
22
23
~ Racine had been provided incomplete information. My wife did not
24 become my firm's vice-president until years after she stopped working for the
environmental consultant. My relationship with her was disclosed to the City during
25 the litigation that was eventually settled (in an abundance of caution), fully and
independently investigated by the City Attorney's Office to make sure there was no
26 impropriety affecting the settlement (there was not), and then covered by the
ordinary and customary waives and releases in the settlement agreement made long
27 after she had stopped working for the consultant.
28 7
11 obtained from the San Diego County Recorder's Office. Attached hereto as
12 Exhibits 9 and 10 are true and correct copies of the county's records showing that
13 Mrs. Hearn and Mrs. Winner, respectively, received the homeowners' exemptions for
14 their primary residence, not the North Park condo, while their own principal-
15 residence covenant for their North Park condo was in effect.)
16 24. Even worse, nobody at lnewsource ever asked my wife or me whether
17 we ever obtained the bank's consent to have a principal residence different from the
18 collateral or had other extenuating circumstances. The applicable covenant required
19 principal residency unless (with my emphasis) the lender consented otherwise or
20 extenuating circumstances existed: "Occupancy. Borrower shall occupy, establish,
21 and use the Property as Borrower's principal residence within 60 days after the
22 execution of this Security Instrument and shall continue to occupy the Property as
23 Borrower's principal residence for at least one year after the date of occupancy,
24 unless Lender otherwise agrees in writing, which consent shall not be
25
26
.§. I never saw and am not aware of any reporting by lnewsource about
27 how Mrs. Hearn and Mrs. Winner were violating their primary-residence covenant.
28 9
5 telling me that Braun was continuing to look for some sort of criminal or unethical
6 conduct on my part to prosecute and/or report to the State Bar. Their warnings were
7 confirmed again when I received a letter from Lead Deputy City Attorney Joe
10 26. Those warnings were confirmed once more in January of 2017, when I
11 learned that, according to a Superior Court complaint by a former career prosecutor
12 in the City Attorney's Office, Braun told her that Goldsmith "wants you to get your
13 hands dirty. If you would just get your hands dirty, they would let you in the room."
14 The complaint went on to state that the former prosecutor "refused, as Rule 5-110
15 required her to do, Goldsmith's demand to file criminal charges against a political
16 rival, Cory Briggs, she believed there was an absence of any evidence Briggs had
17 committed a crime." (Attached hereto as Exhibit 11 is a true and correct copy of
18 Cordileone's letter. Attached hereto as Exhibit 12 is a true and correct copy of the
19 complaint.)
20 27. During the period in 2015 when lnewsource was writing all the stories
21 about me, I compared its list of donors right after the stories started to the list before
22 the stories started. One of the two new names on the list of donors in the $5,000-
23 plus range was Anne Evans, the matriarch of the Evans family hotel dynasty in San
24 Diego; members of that family are big donors to candidates for public office,
25 including Elliott.§. What I later discovered is that a publicly subsidized non-profit run
26
§. Unlike Elliott, I am not accepting campaign donations from lobbyists or
27 anyone doing business with the City.
28 10
2 lnewsource reporting, Judge Wohlfeil concluded that there was no merit to any of
3 the claims against SDOG's standing, that I was not SDOG's alter ego, and that
4 SDOG could proceed to the merits of the case. Judge Wohlfeil concluded: "As is
5 clear from the trial evidence, Briggs is integrally involved in Plaintiff's activities and
6 the pursuit of its corporate purpose. Indeed, based on the witness testimony as well
7 as the letter issued by Mr. Quiroz, Lawrence and Ms. Quiroz (Exh. '160'), it is an
8 open question as to how much, if any, of its objectives Plaintiff could accomplish
10 persuasive reason, based on the totality of the evidence including the autonomy
11 exercised by and the credibility of Lawrence and Mr. Quiroz as Plaintiff's directors,
12 for the Court to conclude that Plaintiffs TAC [third amended complaint] is a 'sham' or
13 'ultra vires,' or that Plaintiff should be deprived of standing to pursue this lawsuit
14 because its alleged status as Briggs' alter ego." (Attached hereto as Exhibit 13 is a
15 true and correct copy of Judge Wohlfeil's ruling on the issue of standing.)
17 31. In late 2015, while waiting for Judge Wohlfeil to rule on the standing
18 issue, I was also working on a ballot measure that eventually came to be known as
19 Measure D - known as the "Citizens' Plan" for reforming the City's tourism-related
20 finances and related matters - on the November 2016 ballot. Two of SDOG's board
22 former City Councilmember Donna Frye. They teamed up with former Padres owner
23 John Moores and Petco Stadium builder John Kratzer to bring forward Measure D.
24 Mr. Evans (on behalf of the TMD and accompanied by one of his lawyers) engaged
26 Measure D over the language to be included in Measure D when circulated for voter
27 signatures.
28 12
10 associated with Braun's role as Chief of Staff. (Attached hereto as Exhibits 15 and
11 16 are the two articles obtained from VoiceofSanDiego.org's website.)
Exhibit 1
SUPERIOR COURT OF CALIFORNIA
--o0o--
Plaintiff,
Defendants.
__________________________/
--o0o--
Videotaped Deposition of
AARON BRIENO
--o0o--
1 A P P E A R A N C E S
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1 INDEX
2 WITNESS
3 AARON BRIENO
4 Volume I
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EXAMINATION PAGE
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EXAMINATION BY MR. BRIGGS 6
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EXAMINATION BY MR. KARLIN 37
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1 EXHIBITS
4 (None marked.)
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10:02:25 7
10:03:26 2 plaintiff.
10:03:34 5
10:03:35 9 forth.
10:03:35 10 EXAMINATION
10:03:37 12 Q. Good morning. Would you please state and spell your
10:04:04 20 A. No.
10:04:16 24 right?
10:04:16 25 A. Sure.
10:04:26 4 that I've said, but she can only take down one person at a
10:04:29 5 time.
10:04:34 7 that you let me finish my questions. I will let you finish
10:04:42 9 in the beginning until we get a feel for how you and I
10:05:22 21 this again. A judge could order you to answer the question
10:05:25 22 later, pay attorneys' fees, things like that. We will deal
10:05:29 23 with it if that comes up, but do allow her to finish doing
10:05:50 4 take a break to get some fresh air, use the restroom, talk
10:06:28 17 ask you a follow-up question such as, "Did you mean yes, or
10:06:32 18 did you mean no?" I'm not picking on you; I'm just trying
10:06:41 21 A. I understand.
10:06:46 23 requires an answer, and you don't know the precise answer,
10:06:52 25 guess. If you don't know something, it's fair to say "I
10:06:56 1 don't know." But if you have a rough idea or a pretty good
10:07:00 2 idea but it's not perfect, I'm entitled to your best
10:07:03 3 estimate.
10:07:10 6 table we're sitting at," you'd look at it and say, "Well,
10:07:16 8 range." And if I asked how long my dining room table is,
10:07:20 9 you'd say, "I have to guess because I've never seen it."
10:07:23 11 A. I understand.
10:07:24 12 Q. Okay. Is there any reason you can't give your best
10:07:29 14 A. No.
10:07:41 17 Check Number 2501 from my firm. It's paid to the Senate
10:07:47 19 clock for this deposition. It's for $40, which covers the
10:07:51 20 witness fee and should be more than enough to cover any
10:08:04 1 A. Yes.
10:08:10 4 Q. Okay. How long have you worked for the California
10:08:13 5 Senate?
10:08:33 12 Hueso --
10:08:33 13 Q. Okay.
10:08:58 22 Church State Council. They were a legal firm that did
10:09:51 11 office.
10:09:51 12 Q. Have you been with Senator Hueso the entire time
10:09:56 14 A. I have.
10:10:14 18 A. Correct.
10:10:21 21 A. I am.
10:10:28 24 A. Yes.
10:10:58 7 formal number, but I mean the essence of the bill. When
10:12:02 23 have at one point reviewed and conferred with either the
10:12:15 2 wrong.
10:12:29 6 office who would review that and advise the senator, yes?
10:12:41 10 know, take a lead, or I'll take a lead. But the vast
10:13:01 16 A. Correct.
10:14:19 15 A. Yes.
10:15:53 15 that bill, and then you would reference legislative history
10:15:59 17 the process that it's gone through through the legislative
10:16:01 18 body.
10:16:32 5 bill?
10:17:05 16 Q. Okay. Do you know whether there are any rules that
10:17:33 22 A. No.
10:17:41 2 office?
10:17:45 4 the legislature to ever destroy any item that had been
10:18:40 21 bill?
10:18:52 1 A. Okay. Our office received the bill text from the
10:19:16 10 Q. Is it Braun?
10:19:33 17 February 21st. I'm not sure on the time because it was
10:20:13 3 Q. Gersten?
10:20:25 7 G-e-r-s-t-e-n.
10:20:53 15 SB-615?
10:21:06 19 A. Yes.
10:21:30 24 first brought to our office, and I want to say March 12th
10:21:47 2 process.
10:21:48 3 Q. Okay.
10:22:05 9 conversations.
10:22:58 23 down.
10:23:03 1 Q. Okay.
10:23:14 5 A. Probably not, no. I would say it was not more than
10:23:15 6 a week.
10:23:18 7 Q. And how did that conversation come about? Did you
10:23:29 9 A. Mr. Braun called our office, asked to speak with me,
10:23:51 14 Q. Sukumar --
10:24:23 25 S-u-k-u-m-a-r.
10:24:35 4 incredibly busy for our office, and I would say probably
10:24:41 6 Q. Okay.
10:25:22 19 conversations.
10:25:23 20 Q. But has anybody other than Mr. Braun told you that
10:25:26 22 A. No.
10:25:27 23 Q. Okay. So --
10:25:37 2 Q. Not a problem. I just -- when you say the fact that
10:25:39 3 it's privileged, what you're really saying is the fact that
10:25:45 7 A. No.
10:26:17 20 communication.
10:26:31 1 you actually went and read the e-mail that he said he
10:26:45 6 Q. Okay. When you spoke to Mr. Braun and he asked you
10:26:52 7 to delete it, did you tell him that you would delete it?
10:26:55 8 A. I told him I would look into it. I said, "Well, let
10:27:01 10 Q. When you told him that, did you have a plan to
10:27:21 18 A. Correct.
10:27:22 19 Q. Okay.
10:27:22 20 A. So I -- so I didn't.
10:27:27 23 A. Correct.
10:27:27 24 Q. Okay. Did you ever share the e-mail with anybody?
10:27:57 8 well as the secretary of the senate and then allowed them
10:28:53 22 I think you said earlier that Mr. Braun sent you
10:29:00 25 correct?
10:29:07 2 about the case itself. I had just asked for further
10:29:34 9 A. Correct.
10:29:34 10 Q. Okay. And did Mr. Braun tell you that he would
10:30:19 21 Q. When you asked him for that information, did you
10:31:05 8 the documents that I was asking for now would typically be
10:31:11 10 bill.
10:31:23 14 A. Correct.
10:31:31 16 tell you that one of the reasons they were proposing to
10:31:36 17 amend the Public Records Act was to reduce the City's
10:31:52 21 raised --
10:31:53 22 Q. Okay.
10:31:54 23 A. -- as a justification.
10:31:59 25 you the information you asked for, that the information he
10:32:09 2 amendment?
10:32:27 7 mouth.
10:32:27 8 A. Yeah.
10:32:29 9 Q. I just want to make sure that you and I are on the
10:32:37 12 senator and the committee and the committee consultant and
10:32:45 14 understand why the City Attorney's Office thought that this
10:32:51 16 A. Yes.
10:33:25 19 through Ms. Jenkins that the only documents you have that
10:33:30 20 are responsive to the subpoena for today are the documents
10:33:40 23 A. Correct.
10:33:42 24 Q. When you received the subpoena for today, did you
10:33:46 1 A. Yes.
10:33:52 4 A. Yes.
10:34:02 7 the earlier subpoena were the only responsive records for
10:34:08 9 A. Yes.
10:34:14 12 A. Correct.
10:34:51 18 legislature.
10:34:58 21 Q. Exactly.
10:35:08 24 legislation.
10:35:26 5 just case law, and so anything that they -- that they work
10:35:42 9 privileged.
10:35:48 13 Q. Does Senator Hueso's office ever tell people who are
10:36:47 1 conversations.
10:37:43 17 Q. Okay.
10:37:50 19 you know, for privacy concerns, would not be made public.
10:37:53 20 But I would let him know what conversations we had -- you
10:38:05 25 Q. Okay. Did you ever tell Mr. Braun that you would
10:38:16 2 confidential?
10:39:26 21 Q. Did Mr. Braun ever tell you in one of your telephone
10:39:45 1 was privileged and confidential. And then I later was able
10:39:58 6 A. Correct.
10:40:04 8 Mr. Braun tell you that he would have to get it from Bill
10:40:09 9 Gersten?
10:40:37 17 litigation?
10:40:38 18 A. You asked for the exact number? Like how many,
10:40:43 19 generally?
10:40:44 20 Q. Approximately.
10:41:21 5 was always and the senator was always looking at statewide
10:41:27 7 provided one example, but we were always ensuring that this
10:41:39 10 Q. Did Mr. Braun ever tell you that there were lawyers
10:41:47 12 Act?
10:41:54 14 raised concerns that there were firms that were filing a
10:42:42 25 entity.
10:43:48 18 I'll put that on the record regarding the subject e-mail
10:43:58 24 that that's the e-mail that we're discussing that's the
10:44:09 2 source of this lawsuit. The source of this lawsuit was the
10:44:30 9 testified this morning that Mr. Braun asked him to delete.
10:45:09 18 or he can pass the mic, or I can give you another mic.
10:45:19 22 heard.
10:45:24 1 EXAMINATION
10:45:32 6 conversation with Mr. Braun that you relayed this morning
10:45:36 7 where we asked you to delete the one e-mail that he was
10:45:46 11 A. Yes.
10:45:47 12 Q. What guidance would you have sought, and who would
10:46:16 19 have intended to seek that guidance, you, in fact, did not;
10:46:33 4 A. No.
10:46:47 9 A. No.
10:47:01 14 record.
10:48:06 17 record.
10:48:24 23 let any -- let everybody know about its signing and any
10:48:28 24 corrections per the code. And the parties to the lawsuit
10:48:53 9 of this?
12 --o0o--
16 __________NO CORRECTIONS
18 __________________________________/_________________
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21 --o0o--
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1 REPORTER'S CERTIFICATE
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Exhibit 2
Gerard Braun 9/12/2019
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17 California.
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1 APPEARANCES:
2
For the Plaintiff:
3
BRIGGS LAW CORPORATION
4 BY: CORY J. BRIGGS, ESQ.
99 East "C" Street
5 Suite 111
Upland, California 91786
6 909-949-7115
7
For the Defendant:
8
OFFICE OF THE SAN DIEGO CITY ATTORNEY
9 BY: DAVID J. KARLIN, DEPUTY CITY ATTORNEY
1200 Third Avenue
10 Suite 1100
San Diego, California 92101
11 619-533-5800
12
13 Also Present:
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1 I N D E X
4 EXAMINATION PAGE
5 BY MR. BRIGGS 6
7 E X H I B I T S
15 PAGE LINE
16 12 16
14 5
17 15 23
16 17
18 23 11
19
INFORMATION REQUESTED BY COUNSEL
20
PAGE LINE
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73 23
22 87 4
23
25 Reporter's Certificate 90
2 12:59 P.M.
3 ---o0o---
23 witness.
24 ///
25 ///
1 GERARD BRAUN,
4 EXAMINATION
5 BY MR. BRIGGS:
10 B-R-A-U-N.
13 A Yes.
15 A I cannot recall.
18 smoothly?
19 A Certainly.
24 Yes?
25 A Of course.
12 A I understand that.
24 A I do.
20 A I do.
2 A No.
12 honor that.
14 A I do not.
16 can't explain --
17 A Okay.
21 Okay?
22 A Terrific.
23 Q Good.
3 A I am.
10 A In December of 2016.
18 communications?
21 communications?
23 2014.
1 A Yes.
3 director of communications?
7 consultant?
10 A I did.
1 noted.
2 BY MR. BRIGGS:
8 look to my attorney.
15 not to answer.
19 order.
23 so far.
6 central issue.
10 communications consultant?
24 BY MR. BRIGGS:
6 BY MR. BRIGGS:
22 BY MR. BRIGGS:
1 San Diego?
7 So --
11 A Yes, I have.
12 Q What office?
14 Q When?
19 A None.
22 of permissible discovery.
25 ///
1 BY MR. BRIGGS:
6 answer.
12 special projects.
13 BY MR. BRIGGS:
8 then I'll --
25 permissible.
12 problem.
13 deposed.
16 foundational nature.
25 objection.
3 BY MR. BRIGGS:
10 projects?
14 request to you?
15 A No.
18 A Yes.
21 A No.
24 A I don't know.
1 journalist?
2 A I was.
4 as a journalist?
5 A I did.
9 A Certainly not.
11 A No.
13 A No.
17 twenty-five; right?
18 A Yes.
21 journalist?
3 licenses?
4 A No.
6 A Correct.
8 A No.
10 A I do.
12 A No.
16 A That's fair.
19 A I am.
23 A I will.
25 me back up.
2 SB615?
12 question.
15 expeditiously.
17 BY MR. BRIGGS:
19 SB615, sir?
20 A I don't.
23 attorney's office?
4 speculative.
5 BY MR. BRIGGS:
8 about SB615?
10 had.
13 Q Yeah.
15 Q Okay.
20 A I can.
2 conversations.
10 you?
13 A Bill Gersten.
22 again was --
23 BY MR. BRIGGS:
1 wrote SB615?
5 can't answer.
15 BY MR. BRIGGS:
17 you?
20 you recall?
22 attorney.
24 A Correct.
1 conversation occurred?
2 A I do not.
8 Q Okay.
19 A Correct.
25 recall having?
11 A That's correct.
13 third conversation?
16 can recall?
3 A Yes.
13 first reading.
16 correct?
19 particular way.
23 that, yes.
2 A No.
5 concerned?
6 A I do not know.
7 Q Know an approximation?
10 A No idea.
18 A Yes.
20 that fair?
21 A At least.
24 A Yes.
1 Well, sorry.
4 Gersten?
10 double T.
11 BY MR. BRIGGS:
14 attorney's office?
21 again.
22 BY MR. BRIGGS:
7 conversation?
10 response?
7 occur?
8 A It occurred by telephone.
9 Q Okay.
14 B-R-I-E-N-O.
16 that conversation?
10 conversations?
11 A No.
14 A It is.
16 for the City, or did you have that when you were a
17 reporter, too?
23 A That's correct.
19 record.
25 ///
1 BY MR. BRIGGS:
4 the break?
7 my answers.
8 Q Good.
17 SB615?
5 A I do not.
12 A Yes.
15 A No.
2 straight line.
14 address it.
17 A I do.
19 A I do not.
21 supervise then?
6 concepts.
9 A Never.
10 Q Okay.
15 lawyers present?
25 "represents."
9 A I have.
15 A We advise.
17 advisory?
19 Q Well, that's --
1 lawsuit?
6 A Excellent.
9 officials or employees?
24 BY MR. BRIGGS:
2 A In court?
4 your word.
7 am not an attorney.
14 BY MR. BRIGGS:
22 in my possession?
23 A I do.
25 to be in my possession?
10 is so broad.
11 BY MR. BRIGGS:
20 Q Okay. So --
25 A Well, I was --
1 Q That's --
6 A That's correct.
9 my client?
18 A I don't recall.
1 turned over?
2 A No.
3 Q Who did?
6 turned over?
7 Q That's correct.
9 search.
23 criteria.
1 A Okay.
5 didn't happen.
9 A No.
11 A No.
16 BY MR. BRIGGS:
5 happened.
8 BY MR. BRIGGS:
13 produced.
17 A No.
23 be the same?
6 minutes.
7 A Excellent.
9 this.
18 A That's correct.
19 Q Okay.
1 A I'm sorry.
4 correct?
6 representation?
11 represents in a way --
14 used. So --
15 BY MR. BRIGGS:
19 A No.
23 A No.
1 SB615?
2 A No.
6 SB615?
7 A No.
9 A No.
17 BY MR. BRIGGS:
20 A No.
23 author SB615?
24 A No.
2 A Yes.
4 "legislative history"?
5 A Yes.
12 the Legislature.
17 legislation?
18 A It does.
22 law in question?
23 A It does not.
3 that it will.
12 for SB615?
13 A I was.
16 SB615?
21 A I did not.
6 A That is correct.
23 other time?
1 did she tell you that there was anything that you
3 further authorization?
13 A Neither.
16 office? Anything?
17 A No.
21 A Yes.
2 in her mind.
6 A In my mind, yes.
12 A Yes.
16 mean --
17 A Yes.
21 as chief of staff?
13 office on SB615?
14 A None.
18 S-U-K-U-M-A-R.
19 A I did.
3 A I don't recall.
10 for?
18 accurately?
22 a fair statement?
3 Q Informed by whom?
6 it was confidential?
8 that question.
12 right?
14 sounds right.
20 A Yes.
23 right?
25 anyway.
16 BY MR. BRIGGS:
19 request; correct?
21 was you.
23 the request.
24 A It was you.
7 Mr. Brieno?
9 Mr. Gersten.
11 it?
17 information.
23 office?
24 A That's correct.
1 is in the legislation?
2 A That's correct.
7 A I guess I don't.
10 Sukumar decision?
11 A I don't recall.
25 explanation.
11 A I can't think --
14 Q Okay.
15 A -- or any place.
22 that conversation.
2 decision; correct?
6 A That is correct.
8 sent it?
15 A I don't know.
18 office?
2 you?
3 A No.
7 A No.
12 A I don't recall.
16 speculation.
18 BY MR. BRIGGS:
24 legislation.
2 A I don't recall.
7 it.
11 Legislature?
23 A I believe I did.
8 SB615?
13 Q Yeah.
18 SB615?
19 Q Yeah.
4 A That's my recollection.
6 correct?
7 A No.
9 correct?
10 A Yes.
13 correct?
16 A Yes.
20 A Correct.
25 speculation.
4 BY MR. BRIGGS:
7 you?
8 A I did not.
11 A That's correct.
14 A That's correct.
18 A No.
22 the information?
3 to Mr. Brieno.
5 correct?
6 A Yes.
10 correct?
12 described previously.
24 right?
2 Q I did.
4 is; right?
10 BY MR. BRIGGS:
15 recognize this.
22 A I suspect I have.
23 Q Okay.
2 Q Good.
6 requests.
8 capacity?
9 A I do not.
11 attorney's office?
16 information?
22 When you read it, when we're all said and done, just
24 Okay?
10 levels of supervision.
12 two lines.
17 review it, and you can work on that with Dave, and
22 ___________________________________________________)
23 BY MR. BRIGGS:
4 A It does not.
12 "responding to."
13 Q Yeah.
18 A Okay.
20 response?
21 A Yes. Okay.
24 year?
25 A I may have.
1 Q Who?
4 about it?
6 of any conversation.
11 Q Great.
12 A -- to take a second --
13 Q Sure.
22 A Uh-huh.
21 A I do.
23 telephone?
24 A I do not.
2 A That's correct.
4 City business?
5 A Of course, yes.
8 A None.
9 Q Never?
10 A No.
11 Q Any voicemails?
12 A No.
24 public record.
1 direct line?
2 A (619) 533-4782.
5 A Yes.
16 request 19-904?
17 A I believe I have.
22 A Yes.
1 A Not quite.
16 Q What is --
20 party.
4 A Yes.
16 confidential?
19 that fact.
24 A Mr. Gersten.
10 A Well --
19 adviser; correct?
23 A Correct.
1 SB615; correct?
2 A Correct.
4 advice; correct?
7 A Incorrect.
20 my confusion.
1 correct?
6 A Yes.
8 your mind?
12 Legislature?
13 A No.
14 Q Okay.
19 office; right?
20 A Correct.
23 information?
2 about you.
7 flip-flopping.
13 A Yes.
16 going"?
3 BY MR. BRIGGS:
13 A I do not.
15 A I do not.
17 A I assume so.
20 A The --
22 A Oh.
24 A I do not.
1 can you find out who made the determination and put
8 A Absolutely.
15 A I am.
24 friend, David Karlin, will help you hold the pen and
1 A Awesome.
3 ___________________________________________________)
7 pages?
13 blanks.
18 Is that reasonable?
1 perfectly feasible.
3 the stipulation.
9 the lawsuit.
10 Is that acceptable?
12 stipulated to.
21 your card.
23 - - -
24
25
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12 at _____________________, _________________________.
13 (city) (state)
14
15
16 ________________________
17 GERARD BRAUN
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Exhibit 3
William J. Gersten 10/24/2019
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1 APPEARANCES:
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1 I N D E X
3 EXAMINATION PAGE
5 BY MR. BRIGGS 5, 59
6 BY MR. KARLIN 57
8 EXHIBITS
13 2019
14 - - -
16 PAGE LINE
17 15 17
18 25 24
19 26 22
20 41 5
21 60 14
22 61 17
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3 - - -
7 EXAMINATION
8 BY MR. BRIGGS:
12 G-E-R-S-T-E-N.
14 taken before?
15 A. I have.
17 A. I have.
19 we --
20 A. I do not --
21 (Reporter instruction.)
25 /////
1 BY MR. BRIGGS:
4 Q. Okay. Good.
6 BY MR. BRIGGS:
9 A. I have.
11 A. I did.
14 A. I did.
16 A. I did.
19 not privileged.
21 A. I did not.
1 A. I can.
2 Q. Yes?
3 A. Yes.
11 deadline Tickler?
12 A. Correct.
16 A. Yes, sir.
20 BY MR. BRIGGS:
23 A. Yes.
25 A. Since 1990.
4 A. That's correct.
10 A. I have.
18 into private practice for two years and then back to the
21 Q. Got you.
17 in Government Affairs?
19 for now.
25 Risk Management.
10 Cal-OSHA.
13 city attorney?
16 that right?
18 negotiator.
19 Q. Okay.
21 management --
22 Q. Are you --
23 A. -- departments.
2 A. I do.
12 A. I have.
13 Q. Okay.
14 A. And I am.
16 A. I am.
18 are there?
1 A. I am.
4 A. I am.
6 means --
7 A. I will.
9 A. I'm sorry.
10 Q. That's okay.
17 BY MR. BRIGGS:
19 matter?
21 that?
25 Records Act.
3 A. I can't recall.
5 A. Presently?
6 Q. Yeah.
8 E-I-L.
12 P-E-R-C-I, D-U-G-A-R-D.
13 Q. That's Prescilla?
14 A. Correct.
18 of permissible discovery.
23 BY MR. BRIGGS:
25 about SB615?
2 of permissible discovery.
5 verbal discussions?
6 BY MR. BRIGGS:
9 A. I don't recall.
12 A. I have.
14 A. I don't recall.
17 A. I did not.
18 Q. Why not?
20 privileged.
2 occurred?
3 A. I don't recall.
8 BY MR. BRIGGS:
10 A. I did not.
11 Q. Why not?
3 BY MR. BRIGGS:
5 that work?
6 A. I cannot recall.
9 privilege?
15 city attorney.
20 Q. Okay.
8 of San Diego.
9 BY MR. BRIGGS:
13 permissible discovery.
16 BY MR. BRIGGS:
22 BY MR. BRIGGS:
11 BY MR. BRIGGS:
19 CPRA?
21 permissible discovery.
23 BY MR. BRIGGS:
24 Q. Whom?
2 when he was in --
3 (Reporter clarification.)
6 BY MR. BRIGGS:
9 Braun.
11 A. When?
12 Q. When?
13 A. I don't recall.
17 BY MR. BRIGGS:
20 it would be 2017.
1 any manner?
2 A. I did.
3 Q. Okay.
12 orally?
13 A. I don't recall.
17 provide, correct?
18 A. Correct.
21 SB615?
23 permissible discovery.
24 BY MR. BRIGGS:
3 work product --
6 communications, yes.
9 BY MR. BRIGGS:
14 amendments, correct?
15 A. That is correct.
19 permissible discovery.
21 BY MR. BRIGGS:
10 BY MR. BRIGGS:
15 idea for many years. I can't remember who was the first
20 permissible discovery.
22 BY MR. BRIGGS:
23 Q. How many?
1 A. Correct.
15 BY MR. BRIGGS:
17 A. Okay.
18 Q. Okay?
4 A. I don't.
12 BY MR. BRIGGS:
16 of permissible discovery.
20 BY MR. BRIGGS:
24 Q. Okay. And when was the last time you had any
6 lawsuit.
8 A. I don't recall.
14 SB615?
25 mind.
5 A. That's correct.
10 A. That's correct.
13 A. Well --
17 privilege.
18 BY MR. BRIGGS:
9 communications --
10 BY MR. BRIGGS:
21 correct?
23 A. That's correct.
5 testimony.
11 BY MR. BRIGGS:
12 Q. I didn't --
14 hear you want me to lay out the legal foundation for the
16 going to do that.
20 tried to pin you down, you then pivot and talk about your
1 A. Yes.
2 Q. -- as a factual basis?
3 A. Yes.
15 2017.
1 it yourself?
15 A. No.
18 A. No.
23 mayor's office?
24 Q. Yes.
14 right?
15 A. Correct.
21 of permissible discovery.
24 BY MR. BRIGGS:
5 initially.
16 lacks foundation.
18 question.
20 career with the City because I didn't handle PRAs for the
22 BY MR. BRIGGS:
1 the CPRA during the three years that you were in the
4 permissible discovery.
7 BY MR. BRIGGS:
23 productions.
25 A. He is not.
3 A. He's --
8 BY MR. BRIGGS:
14 of permissible discovery.
17 Mr. Briggs, and the answer would be no. But there are
24 no.
1 BY MR. BRIGGS:
5 A. That's correct.
9 workplace?
10 A. That's correct.
12 A. I do.
17 assembly members.
3 job?
8 position.
11 Senator Hueso?
12 A. That's my understanding.
19 time.
20 Q. January of 2019?
1 withdrew SB615?
2 A. It was before.
7 A. That's my recollection.
14 best recollection.
16 right?
17 A. That's correct.
25 announced participant.
2 A. Correct.
4 room with Mr. Braun. He was doing the talking. You were
6 A. That's my recollection.
8 A. That's correct.
12 (Reporter clarification.)
15 BY MR. BRIGGS:
16 Q. That's okay.
19 A. I don't.
21 sorry.
24 A. I am.
25 Q. How many?
2 Q. Okay.
9 recall between Mr. Brieno and Mr. Braun was Mr. Brieno
11 A. That's correct.
13 A. That's correct.
17 subject matter.
25 Q. Is it --
1 A. -- information.
12 recall with -- that you can recall between Mr. Brieno and
13 Mr. Braun?
17 A. Yes, I am.
19 that's S-U-K-U-M-A-R.
20 BY MR. BRIGGS:
23 general terms?
4 A. That's correct.
8 product privilege.
11 forth.
14 BY MR. BRIGGS:
9 A. That's correct.
10 Q. Okay.
15 privileged information?
17 permissible discovery.
20 BY MR. BRIGGS:
22 scenario before?
23 A. Yes.
4 matter?
5 Q. No.
6 A. Oh.
8 you --
12 matter?
19 Q. Yeah.
3 A. Mr. Braun.
11 Q. Yeah, of course.
17 A. Mr. Braun.
9 A. Which document?
10 Q. Yeah.
11 A. Yes.
17 Mr. Braun.
19 A. I don't.
23 for a second.
1 Q. But he was the one who came to you and said that
3 that correct?
4 A. That's correct.
6 Mr. Braun ever snuck into your email and taken any emails
8 A. Not to my knowledge.
11 knowledge?
12 A. Not to my knowledge.
21 accurate statement.
25 A. That's correct.
2 correct?
3 A. That's correct.
6 A. Or Nancy Shapiro.
10 A. I was aware.
13 A. Yes, I was.
18 cooperative.
22 disclosed.
23 Q. On what basis?
25 Q. Did you know why you were giving Mr. Braun the
3 testimony.
5 answer it.
10 BY MR. BRIGGS:
12 the email, would you have given it to him for any reason
15 point in time.
24 statement.
25 /////
1 BY MR. BRIGGS:
2 Q. Is inaccurate or an accurate?
3 A. Is accurate.
15 correct?
22 A. I don't recall.
2 SB615, yes.
10 A. That's correct.
17 your testimony?
22 email?
10 Q. Either.
11 A. Yes, I am.
12 Q. You are.
18 legal conclusion.
20 BY MR. BRIGGS:
22 rules.
9 document.
11 A. I would.
20 A. -- I'm sorry.
6 judicial officer.
10 A. Yes.
12 A. Judicially?
13 Q. Yeah.
17 communication.
23 Q. Yeah.
1 A. It was.
5 (Reporter clarification.)
7 request.
8 BY MR. BRIGGS:
13 A. Correct.
16 A. I do.
18 A. Again --
23 speech slurred.
6 its meaning.
8 statute?
9 A. I have.
12 history?
14 Q. Yes.
15 A. To the Legislature?
16 Q. Yes.
18 Q. Yes.
19 A. I have not.
21 ever has?
22 A. I don't.
7 A. Okay.
11 A. That's my understanding.
14 A. Correct.
25 /////
1 BY MR. BRIGGS:
5 A. I -- that's my understanding.
9 (Recess taken.)
11
12 EXAMINATION
13 BY MR. KARLIN:
18 A. I do.
7 idea.
4 FURTHER EXAMINATION
5 BY MR. BRIGGS:
9 Q. Correct.
10 A. No.
19 inadvertently disclosed?
23 BY MR. BRIGGS:
1 determination.
5 Q. I said "belatedly."
11 A. That's my understanding.
15 in that email?
12 attention.
14 testimony.
16 BY MR. BRIGGS:
21 We'll let the judge take a look at the email, but that's
2 privilege.
4 questions. Do you?
19 stip?
6 transcript.
12 transcript?
15 you.
16 - - -
18 - - -
19
20
21
22
23
24
25
8 place.
13
14
15
16 __________________________________
18
19
20
21
22
23
24
25
20
21 _____________________________________
23
24
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24 40:6, 10 40:15 4:9 9:18 dkarlin@sandiego 14:10, 15 15:4
conversations created 16:1 despite 43:24 .gov 3:11 38:20, 22 39:5, 8,
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18 DAVID 3:9 14, 15 17:4, 8 doing 21:24 21
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Exhibit 4
Performance Audit of
Balboa Park Celebration, Inc.
OCTOBER 2014
Audit Report
Transmitted herewith is a performance audit report on the Balboa Park Celebration, Inc. This report
was conducted in accordance with the City Auditor’s Fiscal Year 2014 Audit Work Plan, and the report
is presented in accordance with City Charter Section 39.2. The Results in Brief are presented on page 1.
Audit Objectives, Scope, and Methodology are presented in Appendix A.
We would like to thank staff from the Department of Economic Development, Office of Special Events,
Office of the City Attorney, and Balboa Park Celebration, Inc. for their assistance and cooperation
during this audit. All of their valuable time and efforts spent on providing us information is greatly
appreciated. The audit staff members responsible for this audit report are Kevin Christensen, Megan
Garth, Matthew Helm, and Kyle Elser.
Respectfully submitted,
Eduardo Luna
City Auditor
TO REPORT FRAUD, WASTE, OR ABUSE, CALL OUR FRAUD HOTLINE (866) 809-3500
This Page Intentionally Left Blank
Table of Contents
Results in Brief 1
Background 5
Audit Results 11
Question 1: Did BPCI Misuse City Funds? 11
Question 2: Did BPCI Fully Comply with the MOU and
Funding Agreement? 14
Question 3: Did Any Third-Party Vendors or Consultants
Receive Payments from BPCI, but Did Not Provide Agreed-
Upon Services or Deliverables? 22
Question 4: Did the City Provide Adequate Oversight
Regarding BPCI? 26
Question 5: What Other Factors May Have Adversely
Affected BPCI’s Ability to Fulfill Its Mission? 30
Results in Brief
The Centennial Celebration (Celebration) of the 1915 Panama-
California Exposition held in Balboa Park was intended to be an event
of immense scale that would increase civic pride, increase tourism,
and provide a significant economic benefit to the City of San Diego
(City). In November 2011, the City executed a Memorandum of
Understanding (MOU) and Funding Agreement with Balboa Park
Celebration, Inc. (BPCI), a newly-formed non-profit organization, to
carry out all aspects of the celebration on behalf of the City. However,
BPCI was unable to fulfill its intended mission and the City terminated
the contractual relationship with BPCI in May 2014.
1
At the April 7, 2014 Audit Committee meeting, the Committee unanimously voted that we perform an audit
and performance review of BPCI.
OCA-15-008 Page 1
Performance Audit of Balboa Park Celebration, Inc.
1. Did BPCI Misuse Public The Funding Agreement between the City and BPCI set forth how
Funds? BPCI was to expend public funds for planning, organizing, and
implementing the Celebration. In our analysis of BPCI’s expenditures,
we found that BPCI complied with the Funding Agreement’s use of
funds requirements. Between FY 2012 and FY 2014, BPCI received
total funding of about $3 million, of which approximately $1.6 million
was provided through various City funding sources. The allowable
expenditures set forth in the Funding Agreement were very broad.
Some of the allowable expenses outlined in the Funding Agreement
included planning, development, general administration,
programming, special event production, operations, marketing,
contractors, service providers, and employees. The Funding
Agreement also required BPCI to provide quarterly financial reports
to the City’s Economic Development Department (Economic
Development) detailing BPCI’s use of funds so that Economic
Development could ensure BPCI’s compliance with the Agreement.
As noted above, BPCI’s expenditures and reporting complied with
these portions of the agreements.
2: Did BPCI Fully Comply The Funding Agreement between the City and BPCI was made with
with the MOU and Funding reference to and reliance upon the MOU. Our analysis focused on
Agreement? both interrelated documents. We found that BPCI did not
consistently comply with the section of the Funding Agreement
governing procedures for procurement of goods and services in its
relations with several contractors hired to assist in the planning and
execution of the Celebration. The City Charter, Municipal Code,
Council Policies, and Administrative Regulations set forth general
requirements for competitive bidding to ensure fair practices in the
awarding of City Contracts. BPCI’s specific obligation to abide by
certain City requirements are set forth in the Funding Agreement,
which outlines specific procedural requirements when procuring
goods and services. Specifically, contracts with a value of less than
$5,000, between $5,000 and $25,000, and more than $25,000, had
increasingly stringent procedural requirements prior to execution
based on the value. We found several instances where BPCI awarded
contracts without going through the required procurement
processes.
Additionally, we found some other areas where BPCI did not fully
comply with certain portions of the MOU. Specifically, BPCI was late
in providing certain deliverables required by the MOU, although
most required deliverables were provided on time. Further, we found
that the MOU requirement pertaining to presentations to City
OCA-15-008 Page 2
Performance Audit of Balboa Park Celebration, Inc.
3: Did Any Third-Party We found that, based on the sometimes broad scopes of work set
Vendors or Consultants forth in the contracts, BPCI vendors and consultants delivered on the
Receive Payments from agreed-upon goods and services. We reviewed the deliverables
BPCI, but Did Not Provide received from BPCI’s highest paid consultants and executives.
Agreed-Upon Services or Payments to the top 10 highest paid consultants and executives
Deliverables? comprised about two-thirds of BPCI’s total expenditures.
4: Did the City Provide We found that City staff had limited oversight over BPCI regarding
Adequate Oversight the MOU and Funding Agreements. The Funding Agreement
Regarding BPCI? designates the Director of Special Events and the Deputy Director of
Economic Development as the contract administrators for the MOU
and Funding Agreement, respectively. The Funding Agreement
contract administrator’s review was limited to ensuring that the
amount on the submitted invoice matched payments and
disbursement from BPCI accounts. City staff charged with overseeing
the reimbursement process indicated that the broad scope of the
agreements and lack of detailed invoicing may have also impeded
contract oversight. However, we found provisions in the MOU and
Funding Agreement which potentially could have enabled City
contract administrators to perform more stringent oversight and be
alerted to impending problems. The City Attorney’s Office noted that
the MOU and Funding Agreement contained sufficient language to
enforce deadlines for deliverables, and required presentations to
public committees and meetings with public officials.
5: What Other Factors May Several political and regulatory/legal issues impeded BPCI’s planning
Have Adversely Affected and operational efforts. First, the City’s series of mayoral transitions
BPCI’s Ability to Fulfill its adversely affected BPCI’s ability to obtain funding and contributed to
Mission? delays in the organization’s event planning process. Second,
according to BPCI executives and contractors, Mayor Filner’s role in
BPCI’s celebration planning contributed to further delays in the
planning process. Third, BPCI encountered difficulty in complying
with certain legal restrictions on BPCI’s use of San Diego Tourism
Marketing District funds. Fourth, BPCI was uncertain of the extent to
which the event planning would be affected by certain
environmental regulatory requirements. Lastly, we found that BPCI
encountered significant areas of difficulty in obtaining both
corporate and philanthropic sponsorships.
OCA-15-008 Page 3
Performance Audit of Balboa Park Celebration, Inc.
Issues for Future While we did not make recommendations in the audit, we provide
Consideration issues for future consideration regarding Citywide contracting
practices. Although there were external factors that led to the
dissolution of BPCI prior to completing its mission that were in many
ways outside of the control of BPCI and the City, there are some key
lessons to be learned from the City‘s perspective. Going forward, the
City should ensure that contracts with vendors include sufficiently
detailed scopes of work that include performance milestones to
facilitate contract oversight. Additionally, when contractor invoices
are not sufficiently detailed and contract deliverables are not met, the
City’s contract administrators should be more proactive in
questioning contractor submissions and taking action to hold the
contractor accountable for deliverables. Based on our approved FY
2015 Annual Audit Workplan, 2 we have recently initiated an audit on
Citywide Contract Oversight that will review the City’s contract
monitoring procedures, and we will make recommendations to
improve the City’s contract oversight practices as needed.
City Management and BPCI We provided a draft version of this report to City Management, the
Response Office of the City Attorney, and the BPCI Transition Director for review
and comment. All parties provided technical comments, which have
been incorporated throughout the report, as appropriate. Both the
City and BPCI generally agreed with our findings.
2
City Council’s Audit Committee approved the Office of the City Auditor’s Annual Audit Workplan on July 14,
2014.
OCA-15-008 Page 4
Performance Audit of Balboa Park Celebration, Inc.
Background
Balboa Park (Park), located in the City of San Diego (City) and
comprising over 1,000 acres, is the nation’s largest urban cultural
park. Designated as a park in 1868 by San Diego civic leaders and re-
named in 1910 to honor Spanish-born explorer, Vasco Nuñez de
Balboa, the Park is home to 15 major museums, renowned
performing arts venues, beautiful gardens, and the San Diego Zoo.
With an ever-changing calendar of museum exhibitions, plays,
concerts, classes, and major celebrations held annually, the Park
brings an estimated 14 million visitors per year. The Park is
maintained by the Developed Regional Parks Division of the City of
San Diego Park and Recreation Department.
2015 Centennial Celebration The desire for a 100-year anniversary celebration in 2015
Planning Began in Mid- (Celebration) – intended to expand on the Exposition’s success and
1990s promote Balboa Park’s history, culture, and educational and
recreational resources to the world – began as an ongoing
conversation within the local hospitality industry and Balboa Park
institutions in the mid-1990s. Over time, the scale of what was
envisioned for the Celebration was immense. The City and
community leaders envisioned that this Celebration would increase
civic pride and tourism, and provide an economic benefit to the City.
By some estimates, the Celebration was projected to bring nearly
$700 million to the region, and to double annual visits to the Park
from 10 million in 2010 to 20 million – with nearly 75 percent of
Celebration attendees coming from outside of San Diego.
OCA-15-008 Page 5
Performance Audit of Balboa Park Celebration, Inc.
San Diego’s Tourism The tourism industry is the third largest revenue generator for the
Industry Took a Major City of San Diego economy and a key employment sector. Future
Interest in Celebration growth of the industry is dependent on additional marketing of San
Planning Diego, especially as more hotel rooms come on-line. In mid-2005,
hotel industry representatives interested in developing a new source
of revenue for marketing and expanding the tourism industry in San
Diego approached City officials about implementing a tourism
marketing district (district), whereby lodging businesses within this
district would be assessed a tax to pay for tourism marketing and
promotion within the City. In December 2007, the City Council of San
Diego approved the establishment of the district for five years,
covering the period from 2008 through 2012. In April 2008, the City
entered into agreement with the San Diego Tourism Marketing
District Corporation (SDTMD), a California non-profit mutual benefit
corporation, for the administration of the district.
SDTMD Played a Significant Building off the belief that a year-long Celebration would significantly
Role in Early Celebration increase hotel stays, the SDTMD and City Mayor Jerry Sanders
Planning assembled the SDTMD Steering Committee (Steering Committee) in
March 2010 to develop a framing vision for the Celebration. The
SDTMD, which provided a $50,000 grant in seed money for this
purpose, hired a consultant to complete the planning framework
report which was issued in November 2010. The planning framework
document consolidated nearly a decade of ideas, opinions, and
documents addressing the Celebration’s year-long anticipated event.
Balboa Park Celebration, Inc. In March 2011, members of the Steering Committee presented the
(BPCI) Formed to Be City’s Celebration concept to the City’s Natural Resources and Culture
Official Celebration Committee and outlined a plan for the City to enter into a
Organizer Memorandum of Understanding (MOU) with a non-profit entity,
Balboa Park Celebration, Inc. (BPCI), to carry out the planning of the
Celebration. The Steering Committee members projected the year-
long event would attract about 600,000 hotel room nights and have a
total economic impact to the region of nearly $700 million. Exhibit 1
shows the projections that were presented at the meeting.
OCA-15-008 Page 6
Performance Audit of Balboa Park Celebration, Inc.
Exhibit 1
Estimated Economic Impact of Celebration on San Diego’s Tourism Industry, Calendar Year 2015
3
The City provided $450,000 to BPCI in Transient Occupancy Tax revenue that was previously set aside in the
City’s Major Events Revolving Fund.
OCA-15-008 Page 7
Performance Audit of Balboa Park Celebration, Inc.
BPCI Received a Total of To provide BPCI with sufficient funding with which to begin its
Nearly $3 Million to Plan operations, BPCI received approximately $850,000 in FY 2012. 4 In the
Celebration ensuing fiscal years through FY 2014, BPCI received additional funds
for a combined three-year total of approximately $3 million. Exhibit 2
below shows BPCI’s funding sources from July 2011 to June 2014 (FY
2012 - FY 2014).
Exhibit 2
Amount of Funding BPCI Received from Public and Private Sources, FY 2012 - FY 2014
BPCI Started Work amid From late fall of 2011 through March 2013, as BPCI established its
Early Internal and External administrative structure, it experienced several early internal
Setbacks setbacks. These setbacks, against a transitional political environment,
affected the organization’s attempts to begin the Celebration
planning process in earnest.
Soon after the amendment was finalized, the City sought to keep
afloat a project to redesign the Plaza de Panama in Balboa Park after
a local organization sued the City in the San Diego County Superior
4
The City’s Fiscal Year begins on July 1st of the current year and ends on June 30th of the following year.
OCA-15-008 Page 8
Performance Audit of Balboa Park Celebration, Inc.
New CEO Took Control of In the spring of 2013, Julie Dubick, an attorney and former Chief of
BPCI amid Planning Delays Staff under Mayor Sanders, became BPCI’s fourth CEO in nearly two
and Political Turmoil years. Immediately subsequent to her appointment, the City
provided an additional $360,000 to BPCI with the approval of a
second amendment to the Funding Agreement. Mayor Filner
resigned from office later that summer.
Under Dubick’s leadership and about a year away from the start of
the Celebration, the organization increased its fundraising efforts by
hiring Marketing Partnership Solutions and Utopia Entertainment to
gain sponsorship for the Celebration. Additionally, the organization
made a major change by terminating Autonomy, the original
production company hired in December 2012, and hired Utopia for
production in December 2013.
OCA-15-008 Page 9
Performance Audit of Balboa Park Celebration, Inc.
SDTMD Questioned BPCI In early 2014, members of SDTMD’s board of directors expressed to
Planning Efforts BPCI on multiple occasions that the organization must provide an
account of its specific progress against its FY 2014 contract
commitment and demonstrate an associated rate of return to
participating hotels within the district. In a February 2014 letter to the
SDTMD executive director, BPCI stated that it was not yet able to
measure targets and outcomes or track a return on investment to
participating district hotels because the event was scheduled to run
through 2015.
BPCI CEO Resigned and BPCI BPCI’s fourth and final CEO Julie Dubick resigned on February 13,
Signaled Intent to Cease 2014, after 10 months on the job. Shortly after Dubick’s departure,
Planning Efforts BPCI informed the SDTMD that it was postponing any action on an
application for additional funds.
On February 26, 2014, the Office of the Mayor requested that BPCI
return control of the Celebration planning to the City. Subsequently,
BPCI’s Board approved a plan to transfer all remaining funds, records,
and authority back to the City. On March 1, 2014, Gerry Braun,
formerly the City’s Director of Special Projects under Mayor Sanders,
became BPCI’s Transition Director and on March 3rd, he notified the
City that BPCI intended to return the responsibility of planning the
Celebration back to Special Events. BPCI’s Board voted to terminate
the MOU with the City by mutual agreement, terminate outstanding
contracts, pay all debts, and establish a transition team to assist with
winding down the BPCI’s business.
5
The termination agreement stated that unused City funds should be returned within 90 days of the execution
of the agreement. BPCI returned the funds within about 160 days of the execution of the agreement.
OCA-15-008 Page 10
Performance Audit of Balboa Park Celebration, Inc.
Audit Results
Question 1: Did BPCI Misuse City Funds?
BPCI Complied with the The Funding Agreement sets forth that Balboa Park Celebration, Inc.
Funding Agreement’s Use of (BPCI) should use public funds for planning, organizing and
Funds Requirements implementing the 2015 Centennial Celebration (Celebration). In our
analysis of BPCI’s expenditures, we found that BPCI complied with the
Funding Agreement’s use of funds requirements. Between FY 2012
and FY 2014, BPCI received a total funding of about $3 million, of
which approximately $1.6 million came from various City funding
sources. BPCI expended about $2.84 million over the course of its
operating period. The allowable expenses set forth in the Funding
Agreement were very broad. Some of the allowable expenses
identified in the Funding Agreement included planning,
development, general administration, programming, special event
production, operations, marketing, contractors, service providers,
and employees. The Funding Agreement also required BPCI to
provide quarterly financial reports to the City’s Economic
Development Department (Economic Development) detailing BPCI’s
use of funds so that the department could ensure BPCI’s compliance
with the agreement.
OCA-15-008 Page 11
Performance Audit of Balboa Park Celebration, Inc.
Exhibit 3
SPONSORSHIP ADMINISTRATIVE
$231,568 SUPPORT
9% $328,595
12%
PROGRAMMING
$314,816 BRANDING
12% $64,881
2%
PRODUCTION COMMUNICATIONS
$536,218 $541,766
20% 20%
EXECUTIVE
SERVICES
$635,913
22%
MISCELLANEOUS
$95,220
3%
Notes: Administrative Support: Includes payments to vendors for legal and financial services and internal
administrative support.
Branding: Includes payments to vendors for branding services for the Celebration.
Communications: Includes payments to vendors for communication services such as public relations,
marketing, website design, and advertising.
Executive Services: Includes payments to BPCI's Chief Executive Officers, Chief Operating Officer, and
employees (Julie Dubick and Victor Avina).
Miscellaneous: Includes payments to vendors for items such as publication of Request for Proposals
(RFPs), printing services, and janitorial services.
Production: Includes payments to vendors for traffic and parking studies and location designation of
Celebration events in Balboa Park.
Programming: Includes payments to vendors for the planning and designing of Celebration events and
Balboa Park institutional planning grants.
Sponsorship: Includes payments to vendors responsible for raising money for the Celebration.
OCA-15-008 Page 12
Performance Audit of Balboa Park Celebration, Inc.
BPCI’s Spending Pattern The relative amounts that comprised the various expenditure
Demonstrates Difficulty in categories illustrate some of the key areas that were problematic for
Moving from Celebration BPCI. For example, in contrast to the nine percent of total
Planning to Execution expenditures for sponsorship efforts, about half of all BPCI
expenditures were for executive services, communications, and
administrative support. In our view, this pattern of spending
illustrates the difficulty BPCI had in moving from planning to
execution. As an additional example, BPCI spent 20 percent of funds
on production services, 88 percent of which was paid to Autonomy
but did not result in a finalized production plan. Because production
is tied to the physical layout of the Park and BPCI did not produce a
finalized layout of event activities, this effectively made the
programming that had been developed by several contractors of
little use. The delay in the creation of a finalized production layout
may have also hindered BPCI’s ability to create an environmental
review package in the summer of 2013 to submit to the Office of
Special Events should the event be required to undergo a state
environmental review.
OCA-15-008 Page 13
Performance Audit of Balboa Park Celebration, Inc.
BPCI Did Not Consistently The Funding Agreement between the City and BPCI was made with
Comply with All Provisions reference to and reliance upon the Memorandum of Understanding
of the MOU and Funding (MOU). Our analysis focused on both interrelated documents. We
Agreement found that BPCI did not consistently comply with the section of the
Funding Agreement governing procedures for procurement of goods
and services in its relations with several contractors hired to assist in
the planning and execution of the Celebration. The City Charter,
Municipal Code, Council Policies, and Administrative Regulations set
forth general requirements for competitive bidding to ensure fair
practices in the awarding of City Contracts. BPCI’s specific obligation
to abide by certain City requirements are set forth in the Funding
Agreement, which outlines specific procedural requirements when
procuring goods and services. Specifically, contracts with a value of
less than $5,000, between $5,000 and $25,000, and more than
$25,000, had increasingly stringent procedural requirements prior to
execution based on the value.
Additionally, we found some other areas where BPCI did not fully
comply with certain portions of the MOU. Specifically, BPCI was late
in providing certain deliverables required by the MOU, although
most required deliverables were provided on time. Further, we found
that the MOU requirement pertaining to presentations to City
Council’s Natural Resources and Culture Committee was not fully
met.
BPCI Inconsistently Adhered We found that BPCI inconsistently complied with the section of the
to Contracting Funding Agreement governing procedures for procurement of goods
Requirements and services from contractors who were engaged to assist in the
planning and execution of the Celebration. The City Charter,
Municipal Code, Council Policies, and Administrative Regulations set
forth general requirements for competitive bidding to ensure fair
practices and avoid appearances of impropriety or conflicts of
interest in the awarding of City contracts. BPCI’s specific obligation to
abide by certain City requirements when procuring goods and
services is set forth in Exhibit C of the Funding Agreement. Contracts
with a value of less than $5,000, between $5,000 and $25,000, and
more than $25,000, had increasingly stringent procedural
requirements prior to execution, based on the contract amount.
Additionally, just as the City’s contracting requirements do not apply
to the hiring of City employees, the procurement requirements set
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Performance Audit of Balboa Park Celebration, Inc.
6
BPCI’s final CEO, Julie Dubick, was hired under an employment contract. Additionally, BPCI hired a Marketing
and Communications Manager as an employee in 2013.
OCA-15-008 Page 15
Performance Audit of Balboa Park Celebration, Inc.
Exhibit 4
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Performance Audit of Balboa Park Celebration, Inc.
BPCI Adhered to the BPCI followed the procurement procedures set forth in the Funding
Procurement Procedures Set Agreement for some of the contracts entered into with consultants.
Forth in the Funding For example, BPCI issued a total of 11 requests for proposals (RFPs),
Agreement in Some Cases for which 10 consultants responded and were selected and the City.
Although an RFP was issued for Julie Dubick’s position as CEO, we
excluded her from the total number of vendors selected because
BPCI was not required to hire employees through the procurement
process. However, we found that in at least five other instances
where consultants paid more than $25,000, no RFP was issued. One
BPCI CEO stressed that, in certain instances, the procurement
procedures were not followed due to time constraints in planning
the Celebration.
In Some Cases, BPCI Initially During the course of operations, BPCI entered into a series of
Adhered to Procurement contracts with consultants that were subsequently either modified or
Procedures Required in the expanded to include enhanced scopes of works which resulted in
Funding Agreement but Did new contracts. In many cases, the BPCI Board did not route the new
Not Follow the Procedures contracts with expanded scopes of work through the procurement
when Contracts Were process specified in the RFP.
Expanded or Renegotiated
One example is the series of contracts BPCI entered into with Loma
Media. The BPCI Board adhered to the procurement procedures
required in the Funding Agreement for the initial hiring of Loma
Media. The Board approved the creation and proliferation of an RFP,
assembled a hiring committee which interviewed candidates, and
approved the initial contract for an annual budget of $90,000. BPCI
entered into a contract with Loma Media with an estimated fee of
$188,000 to complete a specific scope of work between from April
2012 through April 2013.
In March 2013, BPCI staff told the Board that a decision had been
made to rebrand, discontinue work with a separate contractor, and
contract with Loma Media to take over those duties and lead the
rebranding effort. The Board did not initiate the RFP procedures
specified in the Funding Agreement. Rather, the BPCI Board
approved entering a contract with Loma Media. BPCI staff later
explained that Loma Media was being paid on an $8,000/month
retainer “with additional job components added to that retainer.”
More specifically, BPCI staff explained that “BPCI has reengineered
the scope of work under the Loma Media contract to include a larger
website development.”
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Performance Audit of Balboa Park Celebration, Inc.
The BPCI Board did not initiate the procurement procedure specified
in Exhibit C of the Funding Agreement for either of the scope of
modifications and new contract signings between BPCI and Loma
Media.
BPCI Did Not Adhere to Of the 20 highest paid consultants hired by BPCI shown in Exhibit 4 –
Funding Agreement in each receiving more than $10,000 from BPCI – more than 50 percent
Contracting with Consultants (11 of 20) were not contracted through the procurement process
in Some Cases established in the Funding Agreement. As a result, BPCI was
potentially in noncompliance with the procurement procedures
established in the Funding Agreement between BPCI and the City.
One BPCI CEO stressed that, in certain instances, these procedures
were not followed due to time constraints in planning an event of
this magnitude.
BPCI Inconsistently Adhered We found that BPCI did not consistently follow the procurement
to Funding Agreement in procedures required by the Funding Agreement in the hiring of
Contracting with BPCI several executives during its Celebration planning efforts.
Executives
Specifically, BPCI did not follow procurement procedures when
entering into contracts with former-CEO Mike McDowell and Interim-
CEO/Transition Director Gerry Braun. Finally, BPCI did follow the
procurement procedure specified in the Funding Agreement when
Executive Director, Mark Germyn was hired under a consulting
contract as CEO. A comprehensive description of the procurement
practices for the four BPCI executives is included in Appendix C. BPCI
was required to follow the contracting procurement procedures
established in Exhibit C of the Funding Agreement for the
organization’s CEOs and executive directors hired on a consulting
basis.
OCA-15-008 Page 18
Performance Audit of Balboa Park Celebration, Inc.
BPCI Was Unclear Regarding In March 2013, BPCI’s Interim CEO sent an email to the City Attorney’s
the Applicability of the office to confirm a telephone conversation regarding whether BPCI
Procedures for Procurement needed to follow an RFP process to hire an executive director. This
of Goods and Services email from BPCI stated in pertinent part, “Per our discussion today,
Balboa Park Celebration, Inc. is not required as a term of its
Memorandum of Understanding with the City to advertise or to issue
RFPs in order to fill positions or engage with consultants.” A Deputy
City Attorney responded, “That is correct. There is nothing in the
MOU that speaks to a process for hiring by BPC. Rather, the MOU
acknowledges that BPC is a separate corporate entity that operates
independently of the City.” The Deputy City Attorney noted the
requirement may “exist elsewhere, e.g., in BPC’s Bylaws or in the laws
that apply to nonprofits, but it is not a term of the MOU.” The City
Attorney’s Office stated that this response was provided in the
context of hiring employees, specifically an executive director.
Nevertheless, based on the dialogue and emails, which referenced
both hiring of employees and consultants, BPCI has stated that they
construed the exchange to mean that BPCI was not required to
advertise or issue RFPs for the hiring of both employees and
consultants. Nevertheless, as noted above, BPCI went through an
advertising and RFP process in the hiring of a CEO as an employee
later that year.
BPCI Provided Most The MOU and the Funding Agreements between the City and BPCI, as
Deliverables Required by described above, established deadlines for BPCI to submit
the MOU, but Some Were deliverables and established a specific number of meetings and
Delivered on an Extended presentations – both to provide the City and the public with
Timeframe confidence that event planning was successful. As described in detail
below, some contractual requirements were not fulfilled.
OCA-15-008 Page 19
Performance Audit of Balboa Park Celebration, Inc.
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Performance Audit of Balboa Park Celebration, Inc.
MOU Requirement for The MOU between the City and BPCI required that BPCI provide
Progress Reports Was Not informational updates to the City Council’s Natural Resources and
Fully Met Culture Committee. The relevant provision of the MOU reads as
follows:
Natural Resources and Culture Committee. During the Term
of this MOU, the 2015 Committee shall make quarterly (or
monthly if requested by the Natural Resources and Culture
Committee) informational progress reports to the San Diego
City Council Natural Resource and Culture Committee at its
regularly scheduled meetings.
Notwithstanding the reporting and information provisions in the
MOU, BCPI did not make all of the contractually required quarterly
informational meetings to the Committee on Natural Resources and
Culture. In fact, since BPCI’s inception in June 2011 through its
dissolution in May 2014, BPCI provided information presentations to
the Committee five times while the MOU required these
presentations to occur on a quarterly basis.
OCA-15-008 Page 21
Performance Audit of Balboa Park Celebration, Inc.
BPCI Consultants and We reviewed the deliverables received from BPCI’s highest paid
Executives Provided the consultants and executives. Payments to the top 10 highest paid
Agreed-Upon Services and consultants and executives comprised about two-thirds of BPCI total
Deliverables Set Forth in expenditures. We found that, based on the sometimes broad scopes
Their Respective Statements of work set forth in the contracts, BPCI vendors and consultants
of Work delivered agreed-upon goods and services. For example, Steve
Silverman of J&S Silverman played a role in drafting consultant RFPs
for a variety of services. Silverman also liaised with contractors and
BPCI’s board of directors, and curated relationships with the Park’s
institutions. As another example, Departure, the first company hired
to create the Celebration’s brand, created EDGE2015 and all requisite
material such as the logo and taglines. Exhibit 6 provides a summary
of these key contractors, the scopes of work, and a high-level
summary of the deliverables.
OCA-15-008 Page 22
Performance Audit of Balboa Park Celebration, Inc.
Exhibit 6
BPCI’s Top Paid Consultants and Employees by Category and Dollar Amount,
June 2011-June 2014
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Performance Audit of Balboa Park Celebration, Inc.
OCA-15-008 Page 24
Performance Audit of Balboa Park Celebration, Inc.
* BPCI also contracted with Utopia for production work. The amount shown in Exhibit 5 reflects the total
amount Utopia received for all contracts.
Source: OCA, based on analysis of vendor contracts, AKT financials, and vendor deliverables to BPCI.
OCA-15-008 Page 25
Performance Audit of Balboa Park Celebration, Inc.
City Staff Had Limited We found that City staff had limited oversight over BPCI regarding
Oversight Over BPCI the MOU and Funding Agreements. The City’s contract
Regarding the MOU and administrator’s review was limited to ensuring that the amount on
Funding Agreement the submitted invoice matched payments and disbursement from
BPCI accounts. City staff charged with overseeing the reimbursement
process indicated that that the broad scope of the agreements and
lack of detailed invoicing may have also impeded contract oversight.
However, we found provisions in the MOU and Funding Agreements
which potentially could have enabled City contract administrators to
perform more stringent oversight and, perhaps, warn of upcoming
problems. The City Attorney’s Office noted that the MOU and
Funding Agreement contained sufficient language to enforce
deadlines for deliverables, and required presentations to public
committees and meetings with public officials.
MOU and Funding The City of San Diego’s relationship with BPCI was memorialized in
Agreements between the two separate documents that established the duties and
City of San Diego and BPCI requirements: a MOU, and a Funding Agreement.
The MOU required the delivery and set deadlines for a series of
comprehensive reports essential to executing the Celebration
including:
Comprehensive Outreach Plan;
Master Calendar of events;
Venue Allocation Plan;
Activities and Programming Schedule;
Implementation Plan;
Process for the Sanctioning of Official Events and
Partnerships;
Business Plan, Strategic Plan, and Budget;
External Communications Plan; and
Access, Transportation and Management Plan.
OCA-15-008 Page 26
Performance Audit of Balboa Park Celebration, Inc.
Funding Agreement The Funding Agreement entered into by the City and BPCI described
how City funds could be used for “activities in planning, organizing,
and implementing the Celebration.” The Funding Agreement
references and relies upon the Memorandum of Understanding,
which provides the scope of uses for City-allocated funds.
Contract Administration The agreements also set forth contract administration responsibilities
for City staff. Specifically, the City’s Deputy Director of Economic
Development was designated as the administrator for the Funding
Agreement and was tasked with receiving Quarterly Expenditure
Reports, copies of the Annual Final Reports, and was to review such
reports and documentation of expenditures for compliance with the
agreement. The City’s Director of Special Events was designated as
the contract administrator for the MOU and was responsible for
receiving, reviewing, and providing feedback on MOU-mandated
deliverables.
City of San Diego’s Contract The City’s Department of Economic Development received and
Oversight Was Limited to a reviewed Quarterly Economic Reports submitted to the City by BPCI.
Cursory Review of Records These reports included invoices, checks and other documents
supporting expenditures and collections of funds. We found that City
staff had limited interaction with BPCI regarding deliverables. City
staff charged with overseeing the reimbursement process indicated
that the broad scope of the agreements and lack of detailed invoicing
requirements may have also impeded contract oversight.
City Staff Had Limited City staff was tasked with the receipt, review and the provision of
Interaction with BPCI feedback to BPCI concerning deliverables specified in the MOU. We
Regarding the Completeness found that there was little to no comment or feedback provided by
and Accuracy of the City staff on any of the reports provided by BPCI. City staff tasked
Deliverables with receiving the deliverables stated these documents were
delivered by BPCI and no substantive discussion took place
concerning the contents of the documents.
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Performance Audit of Balboa Park Celebration, Inc.
Expansive Scope of Allowable The language in the Funding Agreement was broad and permitted a
Expenditures wide range of allowable expenses. Economic Development staff
reviewed reports and documentation of expenditures for compliance
with this Agreement and stated that the MOU and Funding
Agreement included scopes of work that were so broad that most
any expenditure fit within the scope.
Deputy City Attorneys stated the contracts with BPCI had sufficient
detail, which was present in the deliverable deadlines, the required
meetings with City staff, and the presentations before the City
Council’s Natural Resources and Culture Committee and the Balboa
Park Committee. Representatives of the City Attorney stated these
deadlines coupled with a clause in the contract detailing termination
procedures when contractually required deliverables were not met,
were sufficient enforcement measures, if the City chose to use them
fully.
OCA-15-008 Page 28
Performance Audit of Balboa Park Celebration, Inc.
Lack of Detailed Invoicing We found that many invoices submitted by BPCI to the City included
very little detail of work being completed and time spent on task.
Representatives from Economic Development stated that detailed
invoices were not a requirement spelled out in the contracts. Section
2.04 of the Funding Agreement, however, required “supporting
documents” that could have allowed for the City to determine
whether expenditures were appropriately documented. Many
invoices included sparse detail such as “Consulting Services/Contract
Management,” “For services provided in support of Balboa Park
Celebration, Inc.,” “Professional Services,” and “Professional Services
Rendered.” In contrast, invoices submitted by certain consultants
included very detailed descriptions of the work completed.
OCA-15-008 Page 29
Performance Audit of Balboa Park Celebration, Inc.
Political, Regulatory, and Several political, regulatory and legal issues impeded BPCI’s planning
Fundraising Challenges and operational efforts. First, the City’s series of mayoral transitions
Adversely Affected BPCI’s adversely affected BPCI’s ability to obtain funding and contributed to
Ability to Fulfill its Mission delays in the organization’s event planning process. Second,
according to BPCI executives, Mayor Filner’s role in BPCI’s Centennial
Celebration planning contributed to further delays in the planning
process. Third, planning by BPCI was hindered by certain legal
restrictions on BPCI’s use of SDTMD funds. Finally, ongoing litigation
against the City led to uncertainty by City staff and BPCI as to the
extent to the which the event would have to comply with state
environmental regulatory requirements.
Mayoral Transition Limited Near the end of Mayor Sanders’ term in December 2012, the City
and Delayed BPCI’s Access Council, in November 2012, approved and forwarded him a new
to SDTMD’s Funding agreement with the SDTMD for the continued administration of the
City’s tourism marketing district. The taxes assessed on certain
lodging businesses within the district, previously established in
January 2008, are collected by the City and managed by the SDTMD
to be used for marketing and tourism promotion of San Diego. The
City’s agreement with the SDTMD, set to expire on March 31, 2013,
needed to be renewed in order to ensure the continuation of funding
to the SDTMD. Mayor Sanders did not sign the new agreement prior
to leaving office.
Mayor Filner’s Influence Mayor Filner envisioned a large-scale, international event for the
Delayed BPCI’s Planning and Celebration, as exemplified by his public statements on the issue.
Event Development Efforts According to BPCI’s executives and City staff, Mayor Filner’s grand
vision and strong influence interrupted and delayed the
organization’s Celebration planning development efforts by dictating
the selection of certain contractors and dismissing BPCI’s first
branding concept. For example, in January 2013 Mayor Filner
attended a BPCI board of directors meeting where David Gillig, a BPCI
contractor and fundraising professional, gave a presentation of a
potential fundraising strategy for BPCI. The presentation focused on a
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Performance Audit of Balboa Park Celebration, Inc.
Lastly, BPCI’s former CEOs and City officials cite Mayor Filner’s
dismissal of the organization’s Celebration brand as a major setback
in the Celebration planning process. Departure, hired by BPCI in June
2012, created the Celebration’s brand, EDGE2015, to capture the
Celebration’s event theme, logo, tagline, vision, and creative
campaign. In BPCI’s Board meeting minutes from January 2013,
Mayor Filner stated that he did not feel that the EDGE2015 brand was
sufficiently expressive of a celebration of Balboa Park’s 100-year
history. While former CEO McDowell acknowledged that not
everyone was enthusiastic about the EDGE2015 brand, he stated that
potential donors felt they could support it. When McDowell left the
organization on March 1, 2013 and without his support for the brand
to oppose Mayor Filner’s dislike for it, Departure quit and BPCI hired
Loma Media to re-brand the Celebration. The re-branding effort
meant a loss of time for BPCI which was now left to test a new brand
OCA-15-008 Page 31
Performance Audit of Balboa Park Celebration, Inc.
BPCI Was Uncertain During the time of BPCI’s Celebration planning, November 2011 to
Regarding California April 2014, there was uncertainty among BPCI and City officials over
Environmental Quality Act the extent to which the California Environmental Quality Act (CEQA)
Requirements (CEQA) would impact the Celebration. CEQA requires that all discretionary
projects undertaken by agencies in California provide major
consideration to preventing environmental damage. However, in
December 2011, a lawsuit against the City contested recent 2011
amendments to the City’s Municipal Code Park Use Ordinance, which
attempted to designate the City’s Park Use Permitting process as
ministerial, thus exempting City projects from environmental review
under CEQA. As a result of the lawsuit’s unresolved nature during this
time, City officials were unsure how to advise BPCI regarding
timelines for when Celebration plans would be need to be
OCA-15-008 Page 32
Performance Audit of Balboa Park Celebration, Inc.
BPCI Encountered Difficulty We found that BPCI’s leadership and planning team was slow to
in Obtaining Corporate and foresee and adjust to a shrinking fundraising climate. As a result, the
Philanthropic Sponsorships potential revenue was not available to execute an event of the
magnitude envisioned. Primarily, we found that fundraising markets
– both the philanthropic and corporate – suffered from contraction
caused by unrelated issues within both City politics and the national
economy.
OCA-15-008 Page 33
Performance Audit of Balboa Park Celebration, Inc.
Second, BPCI and City leaders also found early in the planning
process that the corporate sponsorship market was not yielding the
kind of “civic commitment” that many involved in the planning
process had expected. BPCI leaders found that many corporate
executives favored other forms of marketing. Other potential
corporate sponsors could not find a nexus between the themes of
the Centennial Celebration and their business model. Many corporate
sponsors did not see the benefit of investing in the event when the
City was embroiled in the political turmoil surrounding former Mayor
Filner.
Corporate Sponsorship BPCI and community leaders involved early in the Celebration
Market Lacked “Civic planning process sought to engage members of the local corporate
Commitment” Early in community to sign on as sponsors of the event. According to a
Celebration Planning former BPCI executive, these efforts were focused on meeting with
corporate executives and gauging their interest in being involved in
the Celebration.
According to City and BPCI staff, the early meetings did not garner
the kind of enthusiastic responses that BPCI planners had envisioned.
Specifically, as former BPCI CEO Mike McDowell stated, the “civic
commitment” that was discussed early in planning never
materialized. BPCI leaders stated in interviews that corporations were
approached, all were cordial, and none made funding commitments.
OCA-15-008 Page 34
Performance Audit of Balboa Park Celebration, Inc.
Fundraising Specialists Despite the early discouraging signals from the corporate market,
Concerned that Philanthropic BPCI’s fundraising expert determined that the magnitude of the
Market Not Sufficient Believed Celebration concept could not be solely supported by the
that BPCI Should Focus on philanthropic sponsorship market and municipal funding. As a result,
Corporate Sponsorships BPCI contracted with corporate fundraising specialists to determine
creative ways in which corporate sponsors would be enticed into
making funding pledges.
Mayor Filner stated to the BPCI Board that he would take over the
fund raising efforts and would raise sufficient funds to expand the
scope of the event. As a result, one BPCI executive stated, fundraising
strategies and planning were put on hold as BPCI did not want to
work at cross purposes with Mayor Filner.
Contentious Political Mayor Filner’s public battles with the SDTMD during early 2013,
Atmosphere Stunted combined with BPCI’s rapidly changing production plan and re-
Planning Efforts and branding efforts, purportedly at Mayor Filner’s direction, inhibited
Sponsorship Pitch BPCI’s ability to create a cohesive, fluid plan in which to present to
Development both corporate and philanthropic sponsors. Furthermore, due to all
of BPCI’s personnel and contractor changes in the summer of 2013
which resulted in a vague event plan, corporate and philanthropic
sponsors alike were unable to discern the nexus between their
organizations and the Celebration. As a result, BPCI was unable to
guarantee a return on investment tied to sponsorship deal, which
contributed to an in increased corporate reluctance to sponsor the
Celebration.
Plaza de Panama Project Was In February 2013, BPCI lost a potential patron in the philanthropic
Rejected by Courts, which community when the San Diego Superior Court ruled against the
Diminished Philanthropic Jacobs’ Plan to remove a parking lot in Balboa Park’s Plaza de Panama
Fundraising Potential to restore it to pedestrian uses. This ruling came at a time when
Mayor Filner pushed for BPCI to gain the financial backing from the
philanthropic community. Former BPCI CEOs stated that the demise
of the Jacobs’ Plan, along with the media’s poor treatment of Jacobs,
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Performance Audit of Balboa Park Celebration, Inc.
Composition of BPCI Board One BPCI official expressed concern that the composition of the BPCI
May Not Have Been Well- Board may not have been well-suited to fundraising for the
Suited for Fundraising Efforts Celebration. Additionally, although the Board members were, by all
reports, well-intentioned and enthusiastic volunteers, it is, in our
view, unlikely that any group composed of part-time volunteers
would be up to the task of planning an event of the magnitude
envisioned.
Contentious Political Beginning in July 2013, civic leaders in San Diego began publicly
Atmosphere Surrounding calling for the resignation of Mayor Filner related to a series of
Mayor Filner’s Misconduct allegations of sexual misconduct. Over the ensuing months, as Mayor
Turned Away Corporate Filner resisted calls for his resignation, more women engaged in
Sponsors business affairs with the City and Mayor’s Office publicly announced
they had been victimized. Media coverage of these events appeared
both in national and local media. BPCI officials stated that Mayor
Filner’s increasingly embattled public persona caused sponsors to be
reluctant to provide funding for the Celebration.
Despite the Harsh Fundraising Despite the late start to fundraising efforts, the Board, BPCI staff, and
Climate, Consultants and BPCI contractors remained optimistic regarding BPCI’s ability to get
Event Planning Remained the necessary funding. Two examples of late fundraising efforts were
Optimistic led by BPCI executives with the enlisted assistance of interim Mayor
Todd Gloria.
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Performance Audit of Balboa Park Celebration, Inc.
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Performance Audit of Balboa Park Celebration, Inc.
2. Did BPCI fully comply with the MOU and Funding Agreement?
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Performance Audit of Balboa Park Celebration, Inc.
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Performance Audit of Balboa Park Celebration, Inc.
Autonomy BPCI may not have complied with the section of the Funding
Agreement governing procedures for procurement of goods and
services in its relations with Autonomy. An increase in the scope of
services negotiated between Autonomy and BPCI in May 2013 may
have triggered the RFP process.
In May 2013, the Board approved a motion to allow the BPCI CEO to
enter in negotiations with Autonomy for an addendum to the
contract to increase its scope to cover the development phase of the
Centennial. At the July 13 meeting of the BPCI Board, the BPCI CEO
stated that she would “review working Agreement” and pay
Autonomy “$60,000 per month until January 2014, at which time
they will receive $100,000 per month until the end of the fiscal year.”
OCA-15-008 Page 40
Performance Audit of Balboa Park Celebration, Inc.
Loma Media BPCI initially adhered to the procurement procedures required in the
Funding Agreement for the initial hiring of Loma Media. The Board
approved the creation and proliferation of an RFP, assembled a
selection committee which interviewed candidates, and approved
the initial contract for an annual budget of $90,000.
In February 2013, BPCI directed that any additional work for Loma
Media is “on hold, pending a new contract that is in negotiations.” In
March 2013, BPCI staff told the Board that a decision had been made
to rebrand, discontinue work with Departure, and contract with Loma
Media to head up the rebranding effort. The BPCI Board approved
entering a contract with Loma Media. BPCI staff later explained that
Loma Media was being paid on an $8,000/month retainer “with
additional job components added to that retainer.” More specifically,
BPCI staff explained that “BPCI has reengineered the scope of work
under the Loma Media contract to include a larger website
development.” At this meeting, the Board approved “conceptual
approval of the contract with Loma Media” and requested that the
BPCI CEO “return to the Board of Directors with the final contract.”
BPCI may have violated the procedural requirements of the Funding
Agreement when an increase in the scope of services was negotiated
and the RFP process was not triggered.
OCA-15-008 Page 41
Performance Audit of Balboa Park Celebration, Inc.
In total, Loma Media Partners were paid $519,458 by BPCI, more than
$331,500 more than the BPCI’s initial contract approval in
conformance with the Funding Agreement.
J&S Silverman Consulting BPCI did not adhere to the procurement requirements of the Funding
Agreement when it entered into a contract with Steve Silverman of
J&S Silverman Consulting.
In the April 2012 meeting, the BPCI CEO notified the Board “he would
be hiring Mr. Steve Silverman on a contract basis to assist with day-
to-day operations.” The Board approved the hiring Mr. Silverman on a
contract basis. In an April 2012 letter, with the subject line
“Consulting Arrangement for Balboa Park Celebration, Inc.,” Steve
Silverman memorialized “our discussion” during which “it was agreed
I would consult with you on the Balboa Park 2015 Celebration on a
time and materials basis at the rate of $95/hour.” The letter also
contained an attachment that specified the scope of work he would
perform for BPCI. Additionally, BPCI records indicate that Mr.
Silverman received a series of payments totaling more than $10,000
for services provided through June 2012.
OCA-15-008 Page 42
Performance Audit of Balboa Park Celebration, Inc.
Blegs, Inc. [dba Marketing BPCI potentially adhered to the procurement requirements of the
Partnership Solutions] Funding Agreement when it entered into a contract with Blegs, Inc.
However, we noted inconsistencies with the time of BPCI payments
to Blegs, Inc. that may not have been in accordance with
procurement requirements.
On August 6 2013, the BPCI Board was notified that the CEO had
been negotiating and finalizing a contract with Blegs. At the meeting
one Board member inquired as to whether the payment terms of the
contract – a percentage of funds raised – was unethical, BPCI officials
responded that MPS “gave [BPCI] a significantly better deal that [sic]
other companies interviewed.” The BPCI Board approved the contract
pending a 72-hour review period. Meanwhile, BPCI issued a second
$8,000 payment to Blegs on August 7, 2013.
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Performance Audit of Balboa Park Celebration, Inc.
The City and Blegs, Inc. executed a contract on August 29, 2013 for
the provision of “solicitation, procurement and/or management of
Sponsorship, Media Partnerships and/or other similar opportunities
for the Project.” The contract specified that Blegs would be paid a
total of $126,000, plus 20 percent of the gross cash value of any
sponsor agreement procured.
The BPCI CEO notified the Board in December 2013 that a decision
was made to shift production from Autonomy to Utopia
Entertainment, Inc. The Board approved entering a contract with
Utopia for a three-month term to include a deliverables, timelines,
and a budget. The contract between BPCI and Utopia specified
payment of $67,500 for the first phase of event design and
production. BPCI may have violated the procedural requirements of
the Funding Agreement when BPCI entered into a contract with
Utopia that exceeded the $25,000 threshold set forth in the Funding
Agreement thereby triggering the RFP process.
Utopia was paid a total of $111,250 for its work on the Celebration
planning.
OCA-15-008 Page 44
Performance Audit of Balboa Park Celebration, Inc.
Departure BPCI did not adhere to the procurement requirements of the Funding
Agreement when it entered into a contract with Departure. First, BPCI
appeared to have pre-selected and accepted work from Departure
prior to company’s selection through a subsequent RFP process.
Second, BPCI did not conform to the Funding Agreement when it
expanded Departure’s scope of work.
In October 2011, BPCI CEO Mark Germyn notified the BPCI Board that
he held a meeting with Emily Rex, president of Departure
Advertising. Mr. Germyn recommended that Ms. Rex make a full
presentation to the Board. In April 2012, the Board was notified that
Departure would host a “visioning workshop” on April 25 with the
BPCI Marketing Committee. In May 2012, BPCI officials notified the
Board that the workshop had been held.
It was not until May 2012 that the Board was notified that proposals
to the “identity and branding RFP” were received and BPCI officials
would review and select finalists. At the June 2012 Board meeting,
BPCI staff notified the Board that four finalists were selected from 12
proposals to the logo and branding RFP. Five members of the Board
reviewed the applications and selected Departure. The Marketing
Committee sent the offer letter to Departure. As stated above, the
final contract between Departure and BPCI was executed in June
2012.
OCA-15-008 Page 45
Performance Audit of Balboa Park Celebration, Inc.
OCA-15-008 Page 46
Performance Audit of Balboa Park Celebration, Inc.
Mark Germyn The BPCI Board followed the procurement procedures set forth in the
Funding Agreement in the hiring of Mark Germyn as executive
director because, based on the evidence available to OCA, the BPCI
Board did create and advertise and RFP, interview qualified
candidates and make a recommendation for the Board to consider.
At the June 2011 meeting of the BPCI Board, a search committee was
formed for a chief operating officer. The Board set out timelines for
search and hiring which included review of short list of candidates,
interviews, and recommendation to Board. In August, the Board
approved a short-term agreement with Mr. Gerymn. The contract
entered into between Mark Germyn and BPCI was effective
September 2011 and specified the monthly salary of $25,000.
OCA-15-008 Page 47
Performance Audit of Balboa Park Celebration, Inc.
Mike McDowell BPCI potentially did not follow the procurement procedures set forth
in the Funding Agreement in the hiring of Mike McDowell as CEO
because, based on the evidence available to OCA, the BPCI Board did
not create and advertise and RFP, interview qualified candidates and
make a recommendation for the Board to consider.
Julie Dubick The BPCI Board followed the procurement procedures set forth in the
Funding Agreement in the hiring of Julie Dubick as CEO by creating
and advertising an RFQ, emplaning a selection committee to review
candidates to recommend a candidate, the Board approved.
However, BPCI was not required to follow the procurement process
for Julie Dubick as she was hired as employee of the organization.
BPCI paid Julie Dubick a total of $136,300 for her work on managing
the planning of the Celebration.
OCA-15-008 Page 48
Performance Audit of Balboa Park Celebration, Inc.
Gerry Braun The BPCI Board potentially did not follow the procurement
procedures set forth in the Funding Agreement in the hiring of Gerry
Braun as consulting project manager and interim CEO positions
because, based on the evidence available to OCA, the BPCI Board did
not create and advertise an RFP, interview qualified candidates and
make a recommendation for the Board to consider.
Consulting Project Manager The BPCI Board potentially did not follow the procurement
for Communications procedures set forth in the Funding Agreement in the hiring of Gerry
Braun as consulting project manager. Based on the evidence
available to OCA, the BPCI Board did not create and advertise an RFP,
interview qualified candidates and make a recommendation for the
Board to consider.
According to BPCI Board minutes, the contract for Gerry Braun was
neither discussed not approved by the Board.
Interim CEO In March 2013, Gerry Braun entered into a contract with BPCI to serve
as “Interim CEO” for a monthly retainer fee of $15,000 on a month-to-
month term as an independent contractor.
According to BPCI Board minutes, the contract for Gerry Braun was
neither discussed nor approved by the Board.
OCA-15-008 Page 49
Performance Audit of Balboa Park Celebration, Inc.
Transition Director The BPCI Board potentially did not follow the procurement
procedures set forth in the Funding Agreement in the hiring of Gerry
Braun as Transition Director because, based on the evidence available
to OCA, the BPCI Board did create and advertise and RFP, interview
qualified candidates and make a recommendation for the Board to
consider.
In March 2014, Gerry Braun entered into another contract with BPCI
to serve as “BPCI Transition Director” as an independent contractor
for a monthly retainer fee of $13,000 for the period between March 1
through May 31, 2014.
OCA-15-008 Page 50
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 5
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August 28, 2014
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Cory Briggs (left); Jan Goldsmith / Photo by Sam Hodgson
The city might’ve wasted six years and $10 million along the
TRENDING STORIES
way, but some good came of the drawn-out battle over
expanding San Diego’s Convention Center: City Attorney Jan Week Month Year
Teachers at
We learned in May that Goldsmith’s o ce had compiled a San Diego
secret memo about Briggs at the behest of the City Council. Charter
Schools Are
The memo, titled “Cory Briggs Matters,” detailed the lawsuits Far Less
Briggs had led over the years, broken down to those he Experienced
Than
had lost, won, settled or were still pending. Briggs was Traditional
School Peers
something of a thorn in the city’s side; Goldsmith said as
much in a recent U-T’ pro le: A Year in,
Gompers
San Diego City Attorney Jan Goldsmith said Briggs Teachers
they win but that doesn’t require them to pay up when Fact Check: Is
they lose. Most
Homelessness
“He’s a smart guy, so I respect him, but our lawyers nd Tied to Drugs
him very di cult to work with,” said Goldsmith, who’s the and Alcohol?
It’s unclear how long these two can keep the peace. But at
least we still have this to look forward to.
Cory Briggs
@corybriggs
This just in: Donna Frye has agreed to pour the opening ice
buckets over @JanIGoldsmith and me for
#ALSIceBucketChallenge.
1 7:52 AM - Aug 18, 2014
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Written By
Catherine Green
Catherine Green was formerly the deputy
editor at Voice of San Diego. She handled
daily operations while helping to plan new
long-term projects.
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DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 6
§ 500. Requirements for confidential marriages, CA FAM § 500
West's Annotated California Codes Family Code (Refs & Annos) Division 3. Marriage (Refs & Annos) Part 4.
Confidential Marriage (Refs & Annos) Chapter 1. General Provisions (Refs & Annos)
This section has been updated. Click here for the updated version.
When an unmarried man and an unmarried woman, not minors, have been living together as husband and wife, they may be
married pursuant to this chapter by a person authorized to solemnize a marriage under Chapter 1 (commencing with Section 400)
of Part 3, without the necessity of first obtaining health certificates.
Credits
(Stats.1992, c. 162 (A.B.2650), § 10, operative Jan. 1, 1994.)
Exhibit 7
TypesofMarriageLicenses https://web.archive.org/web/20070702000347/http://www.cdph.ca.gov/certlic/birthde...
http://www.cdph.ca.gov/certlic/birthdeathmar/Pages/TypesofMarriageLicenses.aspx
Go JUN JUL AUG Close
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2 Jul 07 - 4 Jan 15 2006 2007 2008 Help
Quick Links
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Home > Certificates & Licenses > Birth, Death and Marriage Certificates > TypesofMarriageLicenses
The marriage license may be obtained from any county in California. You are not required to get married in the
county where you purchase the public marriage license; however, you must be married in California. You must
file the license in the county where it was purchased.
You must have at least one witness present at your ceremony. The license contains a place for two witnesses
if you prefer. You may NOT have more than two witnesses sign the official marriage license. Licenses received
with more than two witnesses signatures will be returned to the officiant and a duplicate marriage license will
need to be purchased.
There is no age requirement in California for witnesses, however, they must be old enough to know that they
are witnessing a marriage ceremony, AND be able to sign their name on the official marriage license.
The marriage license is registered at the County Recorder’s Office in the county where the license was
purchased, and is a public record. Anyone may request copies of the marriage license by submitting the
required fee to the County Recorder. Download a copy of the Application for Certified Copy of Marriage or
Divorce Record (VS 113A). Only one officiant may sign the marriage certificate as solemnized.
The bride and groom must be living together as husband and wife at the time they apply for the marriage
license, and must sign an affidavit on the license attesting to those facts.
The couple MUST be married in the county where the license is issued.
No witnesses are required to be at the ceremony, AND no witnesses sign on the marriage license.
1 of 2 4/3/15, 9:19 AM
TypesofMarriageLicenses https://web.archive.org/web/20070702000347/http://www.cdph.ca.gov/certlic/birthde...
The marriage license is a confidential record and is registered at the County Clerk’s OfficeJUN inJUL
the county
AUG where
Close
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it was purchased. Only the bride or groom may purchase copies of the marriage license and must present
141 captures 2
valid picture identification together with the required fee to the County Clerk in order to do so. Persons other
Help
2 Jul 07 - 4 Jan 15 than the bride or groom requesting copies of a confidential marriage license may only2006 do so2007 2008
by presenting a
court order to the County Clerk in the county where the license is registered.
Copies of confidential marriages are not available from the state office.
2 of 2 4/3/15, 9:19 AM
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 8
Recorded at the request of
Commonwealth Lar.~:l Title Company
Subdivision Department
Rt:eording Requested By: DOC# 2005-086361 2
111111111 Ill IIIII 111111111111111111111111111111 1111111111 IIIII 11111111
Return To:
Homel23 Corporatio~ OCT 05, 2005 4:00 PM
13100 Northwest Freeway, Suite 200 OFFICIAL RECORDS
Houston, TX 77040 SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES 75.00
PAGES: 23 DA:
•
Prepared By: 16053 1111111 IIIII 111111111111111 IIIII IIIII IIIII 1111111111 1111111111 111111111111111111
Home123 Corporation
13100 Northwest Freeway, Suite 200 ?_00§-0_!!63612
Houston, TX 77040
\,J (;, 0 .(;, ( , ,6 '_s- /spa" Abov• This Uno For R"ording D a t a l - - - - - - - - - - - -
DEED OF TRUST
MIN 100431900103274765
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in
Sections 3, II, 13, 18, 20 and 21. Certain rules regarding the usage of words used in this document are
also provided in Section 16.
(A) ''Security Instrument" means this document, which is dated September 30, 2005
together with all Riders to this document.
(B)"Borrower" is KARIN E. WINNER, A Single Woman and LORETTA A. HEARN, an
Unmarried Woman.
Borrower's address is 3970 UTAH STREET #8, SAN DIEGO, CA 92104. Borrower is the trustor under
this Security Instrument.
(C)"Lender"is HOM£123 CORPORATION, a Cal1fornia Corporation.
Lender is a Corporation
organized and existing under the laws of Ca 1 i for n i a
115-10376133
CAUFORNIA·Single Family-Fannlo Mao/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3005 1/01
G .,.SA(CA) (0207)
Page 1 of 15
(E) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is
acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary
under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an
address and telephone number of P.O. Box 2026, Flint, Ml48501-2026, tel. (888) 679-MERS.
(F) "Note" means the promissory note signed by Borrower and dated September 30, 2005
TheNotestatesthatBorrowerowesLenderOne Hundred Th1rty-n1ne Thousand N1ne
Hundred And 00/100 Dollars
(U.S. $139,900.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic
Payments and to pay the debt in full not later than October 1, 2020
(G) ''Property" means the property that is described below under the heading "Transfer of Rights in the
Property."
(H) ''Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges
due under the Note, and all sums due under this Security Instrument, plus interest.
(I) ''Riders" means all Riders to this Security Instrument that are executed by Borrower. The following
Riders are to be executed by Borrower [check box as applicable]:
(J) "Applicable Law" means all controlling applicable federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final,
non-appealable judicial opinions.
(K) "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners
association or similar organization.
(L) ''Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by
check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic
instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit
or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller
machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse
transfers.
(M) ''Escrow Items" means those items that are described in Section 3.
(N) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid
by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i)
damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the
Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the
value and/or condition of the Property.
(0) ''Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on,
the Loan.
(P) ''Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.
115-10376133
G.SA(CA) (0207) Page2of15
lniliaJs:ki~#r- Fonn 3005 1/01
®
·16055
(Q) ''RESPA" means the Real Estate Settlement Procedures Act {12 U.S. C. Section 2601 et seq.) and its
implementing regulation, Regulation X {24 C.F.R. Part 3500), as they might be amended from time to
time, or any additional or successor legislation or regulation that governs the same subject marter. As used
in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard
to a "federally related mortgage loan" even if the Loan does not qualify as a "federally related mortgage
loan" under RESPA.
{R) ''Successor in Interest of Borrower" means any party that has taken title to the Property, whether or
not that party has assumed Borrower's obligations under the Note and/or this Security Instrument.
445-712-20-00
Parcel IDNumber: which currently has the address of
3970 UTAH STREET #8 (Street]
SAN DIEGO (City], California 92104 (Zip Code]
("Property Address"):
TOGETHER WITH all the improvements now or hereafter erected on the property, and all
easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and
additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this
Security Instrument as the "Property." Borrower understands and agrees that MERS holds only legal title
to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or
custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any
or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to
take any action required of Lender including, but not limited to, releasing and canceling this Security
Instrument.
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has
the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances
115-10376133 ~
G-&A(CA)(0207) Page3of15 Initials: Form3005 1101
®
16056
of record. Borrower warrants and will defend generally the title to the Property against all claims and
demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real
property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
I. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any
prepayment charj!eS and late charges due under the Note. Borrower shall also pay funds for Escrow Items
pursuant to SectiOn 3. Payments due under the Note and this Security Instrument shall be made in U.S.
currency. However, if any check or other instrument received by Lender as payment under the Note or this
Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments
due under the Note and this Security Instrument be made in one or more of the following forms, as
selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or
cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a
federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at
such other location as may be designated by Lender in accordance with the notice provisions in Section 15.
Lender may return any payment or partial payment if the payment or partial payments are insufficient to
bring the Loan current. Lender may accept any payment or partial 12ayment insufficient to bring the Loan
current, without waiver of any rights hereunder or prejudice to its nghts to refuse such payment or partial
payments in the future, but Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment is applied as of its scheduled due date, then Lender need not 12ay
interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to brmg
the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply
such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstandmg
principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower
might have now or in the future against Lender shall relieve Borrower from making payments due under
the Note and this Security Instrument or performing the covenants and agreements secured by this Security
Instrument.
2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest
due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments
shall be applied to each Periodic Payment in the order m which it became due. Any remaining amounts
shall be applied first to late charges, second to any other amounts due under this Security Instrument, and
then to reduce the principal balance of the Note.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a
sufficient amount to pay any late charge due, the payment may be applied to the delinquent payment and
the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received
from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can be
paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or
more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall
be applied first to any prepayment charges and then as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.
3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are due
under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due
for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a
lien or encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c)
premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage Insurance
premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage
Insurance premiums in accordance with the provisions of Section 10. These items are called "Escrow
Items." At origination or at any time during the term of the Loan, Lender may require that Community
Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and
assessments shall be an Escrow Item. Borrower shall promptly furmsh to Lender all notices of amounts to
be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives
Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's
obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be
115-10376133
G -6A(CA) (0207) Page4of15
'""'""~ Fonn 3005 1/01
"'
16057
in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts
due for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires,
shall furnish to Lender receipts evidencing such payment within such time period as Lender may require.
Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to
be a covenant and agreement contained in this Security Instrument, as the phrase "covenant and agreement"
is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and
Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under Section 9
and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such
amount. Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given .in
accordance with Section I 5 and, upon such revocation, Borrower shall pay to Lender all Funds, and in
such amounts, that are then required under this Section 3.
Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply
the Funds at the time specified under RESPA, and (b) not to exceed the maximum amount a lender can
require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and
reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable
Law.
The Funds shall be held in an institution whose deposits are insured by a federal agency,
instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in
any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time
specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually
analyzing the escrow account, or verifYing the Escrow Items, unless Lender pays Borrower interest on the
Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing
or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower
any interest or earnings on the Funds. Borrower and Lender can agree in writing, however, that interest
shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the
Funds as required by RESPA.
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to
Borrower for the excess funds in accordance with RESP A. If there is a shortage of Funds held in escrow,
as defined under RESPA, Lender shall notifY Borrower as required by RESPA, and Borrower shall pay to
Lender the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12
monthly payments. If there is a deficiency of Funds held in escrow, as defined under RESPA, Lender shall
notifY Borrower as required by RESPA, and Borrower shall pay to Lender the amount necessary to make
up the deficiency in accordance with RESPA, but in no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund
to Borrower any Funds held by Lender.
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instrument, leasehold payments or
ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To
the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable
to Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith
by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to
prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings
are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating
the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien
which can attain priority over this Security Instrument, Lender may give Borrower a notice identifYing the
"'"··~
115-10376133
G ®-6A(CA) (02071 Page 5 of 15 Fonn 3005 1/01
16058
lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or
more of the actions set forth above in this Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or
reporting service used by Lender in connection with this Loan.
5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on
the Property insured against loss by fire, hazards included within the term "extended coverage," and any
other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance.
This insurance shall be maintained in the amounts (including deductible levels) and for the periods that
Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of
the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's
right to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may
require Borrower to pay, in connection with this Loan, either: (a) a one-time charge for flood zone
determination, certification and tracking services; or (b) a one-time charge for flood zone determination
and certification services and subsequent charges each time remappings or similar changes occur which
reasonably might affect such determination or certification. Borrower shall also be responsible for the
payment of any fees imposed by the Federal Emergency Management Agency in connection with the
review of any flood zone determination resulting from an objection by Borrower.
If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any
particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might
not protect Borrower, Borrower's equity in the Property, or the contents of the Property, against any risk,
hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower
acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall
become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest
at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from
Lender to Borrower requesting payment.
All insurance policies required by Lender and renewals of such policies shall be subject to Lender's
right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as
mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to
insurance proceeds to the holder of the Note up to the amount of the outstanding loan balance. Lender shall
have the right to hold the policies and renewal certificates. If Lender requires, Borrower shall promptly
give to Lender all receipts of paid premiums and renewal notices. If Borrower obtains any form of
insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Property, such
policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional
loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the
Note up to the amount of the outstanding loan balance.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender
may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree
in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall
be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and
Lender's security is not lessened. During such repair and restoration period, Lender shall have the right to
hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the
work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken
promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series
of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law
requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any
interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by
Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If
the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance
proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
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the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in
Section 2.
If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance
claim and related matters. If Borrower does not respond within 30 days to a notice from Lender that the
insurance carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day
period will begin when the notice is given. In either event, or if Lender acquires the Property under
Section 22 or otherwise, Borrower hereby assigns to Lender (a) Borrower's rights to any insurance
proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Insttument, and
(b) any other of Borrower's rights (other than the right to any refund of unearned premiums paid by
Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the
coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or
to pay amounts unpaid under the Note or this Security Insttument, whether or not then due.
6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal
residence within 60 days after the execution of this Security Instrument and shall continue to occupy the
Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender
otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating
circumstances exist which are beyond Borrower's control.
7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not
destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the
Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in
order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is
determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall
promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or
condemnation proceeds are paid in connection with damage to, or the taking of, the Property, Borrower
shall be responsible for repairing or restoring the Property only if Lender has released proceeds for such
purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of
progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient
to repair or restore the Property, Borrower is not relieved of Borrower's obligation for the completion of
such repair or restoration.
Lender or its agent may make reasonable entries upon and inspections of the Property. If it has
reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give
Borrower notice at the time of or prior to such an interior inspection specifYing such reasonable cause.
8. Borrower's Loan Application. Borrower shall be in default if, during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's
knowledge or consent gave materially false, misleading, or inaccurate information or statements to Lender
(or failed to provide Lender with material information) in connection with the Loan. Material
representations include, but are not limited to, representations concerning Borrower's occupancy of the
Property as Borrower's principal residence.
9. Protection of Lender's Interest in the Property and Rights Under Ibis Security Instrument. If
(a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there
is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under
this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for
enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or
regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is
reasonable or appropriate to protect Lender's interest in the Property and rights under this Security
Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing
the Property. Lender's actions can include, but are not limited to: (a) paying any sums secured by a lien
which has priority over this Security Instrument; (b) appearing in court; and (c) paying reasonable
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attorneys' fees to protect its interest in the Property and/or rights under this Security Instrument, including
its secured position in a bankruptcy proceeding. Securing the Property includes, but is not limited to,
entering the Property to make repairs, change locks, replace or board up doors and windows, drain water
from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned
on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not
under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all
actions authorized under this Section 9.
Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower
secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of
disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting
paymff'ihis Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the
lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless
Lender agrees to the merger in writing.
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan,
Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason,
the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
previously provided such insurance and Borrower was required to make separately designated payments
toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to obtain
coverage substantially equivalent to the Mortgage Insurance previously in effect, at a cost substantially
equivalent to the cost to Borrower of the Mortgage Insurance previously in effect, from an alternate
mortgage insurer selected by Lender. If substantially equivalent Mortgage Insurance coverage is not
available, Borrower shall continue to pay to Lender the amount of the separately designated payments that
were due when the insurar ·e coverage ceased to be in effect. Lender will accept, use and retain these
payments as a non-refur/ -l0ss reserve in lieu of Mortgage Insurance. Such loss reserve shall be
non-refundable, notwit' · \e fact that the Loan is ultimately paid in full, and Lender shall not be
required to pay Borrow,. ;7rest or earnings on such loss reserve. Lender can no longer require loss
reserve payments if Mort~e-Tnsurance coverage (in the amount and for the period that Lender requires)
provided by an insurer selected by Lender again becomes available, is obtained, and Lender requires
separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage
Insurance as a condition of making the Loan and Borrower was required to make separately designated
payments toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to
maintain Mortgage Insurance in effect, or to provide a non-refundable loss reserve, until Lender's
requirement for Mortgage Insurance ends in accordance with any written agreement between Borrower and
Lender providing for such termination or until termination is required by Applicable Law. Nothing in this
Section 10 affects Borrower's obligation to pay interest at the rate provided in the Note.
Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it
may incur if Borrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage
Insurance.
Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may
enter into agreements with other parties that share or modifY their risk, or reduce losses. These agreements
are on terms and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to
these agreements. These agreements may require the mortgage insurer to make payments using any source
of funds that the mortgage insurer may have available (which may include funds obtained from Mortgage
Insurance premiums).
As a result of these agreements, Lender, any purchaser of the Note, another insurer, ·any reinsurer,
any other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that
derive from (or might be characterized as) a portion of Borrower's payments for Mortgage Insurance, in
exchange for sharing or modifYing the mortgage insurer's risk, or reducing losses. If such agreement
provides that an affiliate of Lender takes a share of the insurer's risk in exchange for a share of the
premiums paid to the insurer, the arrangement is often termed "captive reinsurance." Further:
(a) Any such agreements will not affect the amounts that Borrower bas agreed to pay for
Mortgage Insurance, or any other terms of the Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Insurance, and they will not entitle Borrower to any refund.
'"'u"~
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(b) Any such agreements will not affect the rights Borrower bas - if any - with respect to the
Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. These rights
may include the right to receive certain disclosures, to request and obtain cancellation of tbe
Mortgage Insurance, to have the Mortgage Insurance terminated automatically, and/or to receive a
refund of any Mortgage Insurance premiums that were unearned at the time of such cancellation or
termination.
II. Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
assigned to and shall be paid to Lender.
If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of
the Property, if the restoration or repair is economically feasible and Lender's security is not lessened.
During such repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds
until Lender has had an opportunity to inspect such Property to ensure the work has been completed to
Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may pay for the
repairs and restoration in a single disbursement or in a series of progress payments as the work is
completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such
Miscellaneous Proceeds, Lender shall not be required to pay Borrower any interest or earnings on such
Miscellaneous Proceeds. If the restoration or repair is not economically feasible or Lender's security would
be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument,
whether or not then due, with the excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be
applied in the order provided for in Section 2.
In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous
Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
the excess, if any, paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market
value of the Property immediately before the partial taking, destruction, or loss in value is equal to or
greater than the amount of the sums secured by this Security Instrument immediately before the partial
taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the sums
secured by this Security Instrument shall be reduced by the amount of the Miscellaneous Proceeds
multiplied by the following fraction: (a) the total amount of the sums secured immediately before the
partial taking, destruction, or loss in value divided by (b) the fair market value of the Property
immediately before the partial taking, destruction, or loss in value. Any balance shall be paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in whiCh the fair market
value of the Property immediately before the partial taking, destruction, or loss in value is less than the
amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless
Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums
secured by this Security Instrument whether or not the sums are then due.
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the
Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages,
Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized
to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the
sums secured by this Security Instrument, whether or not then due. "Opposing Party" means the third party
that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in
regard to Miscellaneous Proceeds.
Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's
interest in the Property or rights under this Security Instrument. Borrower can cure such a default and, if
acceleration has occurred, reinstate as provided in Section 19, by causing the action or proceeding to be
dismissed with a ruling that, in Lender's judgment, precludes forfeiture of the Property or other material
impairment of Lender's interest in the Property or rights under this Security Instrument. The proceeds of
any award or claim for damages that are attributable to the impairment of Lender's interest in the Property
are hereby assigned and shall be paid to Lender.
All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be
applied in the order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for
payment or modification of amortization of the sums secured by this Security Instrument granted by Lender
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to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower
or any Successors in Interest of Borrower. Lender shall not be required to commence proceedings against
any Successor in Interest of Borrower or to refuse to extend· time for payment or otherwise modifY
amortization of the sums secured by this Security Instrument by reason of any demand made by the original
Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in exercising any right or
remedy including, without limitation, Lender's acceptance of payments from third persons, entities or
Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or
preclude the exercise of any right or remedy.
13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants
and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who
co-signs this Security Instrument but does not execute the Note (a "co-signer"): (a) is co-signing this
Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the
terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security
Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modifY, forbear or
make any accommodations with regard to the terms of this Security Instrument or the Note without the
co·signer' s consent.
Subject to the provisions of Section I 8, any Successor in Interest of Borrower who assumes
Borrower's obligations under this Security Instrument in writing, and is approved by Lender, shall obtain
all of Borrower's rights and benefits under this Security Instrument. Borrower shall not be released from
Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in
writing. The covenants and agreements of this Security Instrument shall bind (except as provided in
Section 20) and benefit the successors and assigns of Lender.
14. Loan Charges. Lender may charge Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this
Security Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees.
In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific
fee to Borrower shall not be construed as a prohibition on the charging of such fee. Lender may not charge
fees that are expressly prohibited by this Security Instrument or by Applicable Law.
If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted so
that the interest or other loan charges collected or to be collected in connection with the Loan exceed the
permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the
charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted
limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal
owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the
reduction will be treated as a partial prepayment without any prepayment charge (whether or not a
prepayment charge is provided for under the Note). Borrower's acceptance of any such refund made by
direct payment to Borrower will constitute a waiver of any right of action Borrower might have arising out
of such overcharge.
15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument
must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to
have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's
notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers
unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address
unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly
notifY Lender of Borrower's change of address. If Lender specifies a procedure for reporting Borrower's
change of address, then Borrower shall only report a change of address through that specified procedure.
There may be only one designated notice address under this Security Instrument at any one time. Any
notice to Lender shall be given by delivering it or by mailing it by first class mail to Lender's address
stated herein unless Lender has designated another address by notice to Borrower. Any notice in
connection with this Security Instrument shall not be deemed to have been given to Lender until actually
received by Lender. If any notice required by this Security Instrument is also required under Applicable
Law, the Applicable Law requirement will satisfY the corresponding requirement under this Security
Instrument.
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16. Governing Law; Severability; Rules of Construction. This Security Instrument shall be
governed by federal law and the law of the jurisdiction in which the Property is located. All rights and
obligations contained in this Security Instrument are subject to any requirements and limitations of
Applicable Law. Applicable Law might explicitly or implicitly allow the parties to agree by contract or it
might be silent, but such silence shall not be construed as a prohibition against agreement by contract. In
the event that any provision or clause of this Security Instrument or the Note conflicts with Applicable
Law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be
given effect without the conflicting provision.
As used in this Security Instrument: (a) words of the masculine gender shall mean and include
corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and
include the plural and vice versa; and (c) the word "may" gives sole discretion without any obligation to
take any action.
17. Borrower's Copy. Borrower shall be given one copy of the Note and of this Security Instrument.
18. Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18,
"Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited
to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or
escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser.
!fall or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower
is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior
written consent, Lender may require immediate payment in full of all sums secured by this Security
Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by
Applicable Law.
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall
provide a period of not less than 30 days from the date the notice is given in accordance with Section 15
within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay
these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this
Security Instrument without further notice or demand on Borrower.
19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions,
Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time
prior to the earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in
this Security Instrument; (b) such other period as Applicable Law might specify for the termination of
Borrower's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those
conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security
Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or
agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited
to, reasonable attorneys' fees, property inspection and valuation fees, and other fees incurred for the
purpose of protecting Lender's interest in the Property and rights under this Security Instrument; and (d)
takes such action as Lender may reasonably require to assure that Lender's interest in the Property and
rights under this Security Instrument, and Borrower's obligation to pay the sums secured by this Security
Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and
expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c)
certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon
an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic
Funds Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby
shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not
apply in the case of acceleration under Section 18.
20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
the Note (together with this Security Instrument) can be sold one or more times without prior notice to
Borrower. A sale might result in a change in the entity (known as the "Loan Servicer") that collects
Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan
servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be
one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan
Servicer, Borrower will be given written notice of the change which will state the name and address of the
new Loan Servicer, the address to which payments should be made and any other information RESPA
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requires in connection with a notice of transfer of servicing. If the Note is sold and thereafter the Loan is
serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations
to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not
assumed by the Note purchaser unless otherwise provided by the Note purchaser.
Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
individual litigant or the member of a class) that arises from the other party's actions pursuant to this
Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by
reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such
notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the
other party hereto a reasonable period after the giving of such notice to take corrective action. If
Applicable Law provides a time period which must elapse before certain action can be taken, that time
period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and
opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to
Borrower pursuant to Section 18 shall be deemed to satisfY the notice and opportunity to take corrective
action provisions of this Section 20.
21. Hazardous Substances. As used in this Section 21: (a) "Hazardous Substances" are those
substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the
following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides
and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials;
(b) "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that
relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response
action, remedial action, or removal action, as defined in Environmental Law; and (d) an "Environmental
Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental
Cleanup.
Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous
Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do,
nor allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental
Law, (b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a
Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding
two sentences shall not apply to the presence, use, or storage on the Property of small quantities of
Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to
maintenance of the Property (including, but not limited to, hazardous substances in consumer products).
Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawsuit
or other action by any governmental or regulatory agency or private party involving the Property and any
Hazardous Substance or Environmental Law of which Borrower has actual knowledge, (b) any
Environmental Condition, including but not limited to, any spilling, leaking, discharge, release or threat of
release of any Hazardous Substance, and (c) any condition caused by the presence, use or release of a
Hazardous Substance which adversely affects the value of the Property. If Borrower learns, or is notified
by any governmental or regulatory authority, or any private party, that any removal or other remediation
of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary
remedial actions in accordance with Environmental Law. Nothing herein shall create any obligation on
Lender for an Environmental Cleanup.
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NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following
Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a)
the default; {b) the action required to cure the default; (c) a date, not less than 30 days from the date
the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the
default on or before the date specified in the notice may result in acceleration of the sums secured by
this Security Instrument and sale of the Property. The notice shall further inform Borrower of the
right to reinstate after acceleration and the right to bring a court action to assert the non-existence of
a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or
before the date specified in the notice, Lender at its option may require immediate payment in full of
all sums secured by this Security Instrument without further demand and may invoke the power of
sale and any other remedies permitted by Applicable Law. Lender shall he entitled to collect all
expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to,
reasonable attorneys' fees and costs of title evidence.
If Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a written
notice of the occurrence of an event of default and of Lender's election to cause the Property to be
sold. Trustee shall cause this notice to be recorded in each county in which any part of the Property
is located. Lender or Trustee shall mail copies of the notice as prescribed by Applicable Law to
Borrower and to the other persons prescribed by Applicable Law. Trustee shall give public notice of
sale to the persons and in the manner prescribed by Applicable Law. After the time required by
Applicable Law, Trustee, without demand on Borrower, shall sell the Property at public auction to
the highest bidder at the time and place and under the terms designated in the notice of sale in one or
more parcels and in any order Trustee determines. Trustee may postpone sale of all or any parcel of
the Property by public announcement at the time and place of any previously scheduled sale. Lender
or its designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property without any
covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie
evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale in
the following order: (a) to all expenses of the sale, including, but not limited to, reasonable Trustee's
and attorneys' fees; (b) to all sums secured by this Security Instrument; and (c) any excess to the
person or persons legally entitled to it.
23. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall
request Trustee to reconvey the Property and shall surrender this Security Instrument and all notes
evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property
without warranty to the person or persons legally entitled to it. Lender may charge such person or persons
a reasonable fee for reconveying the Property, but only if the fee is paid to a third party (such as the
Trustee) for services rendered and the charging of the fee is permitted under Applicable Law. If the fee
charged does not exceed the fee set by Applicable Law, the fee is conclusively presumed to be reasonable.
24. Substitute Trustee. Lender, at its option, may from time to time appoint a successor trustee to
any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in
the office of the Recorder of the county in which the Property is located. The instrument shall contain the
name of the original Lender, Trustee and Borrower, the book and page where this Security Instrument is
recorded and the name and address of the successor trustee. Without conveyance of the Property, the
successor trustee shall succeed to all the title, powers and duties conferred upon the Trustee herein and by
Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other
provisions for substitution.
25. Statement of Obligation Fee. Lender may collect a fee not to exceed the maximum amount
permitted by Applicable Law for furnishing the statement of obligation as provided by Section 2943 of the
Civil Code of California.
115-10376133
G -6A(CA) (0207) Page 13 of 15
toiHeJsU#- Form 3005 1/01
"'
16065
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this
Security Instrument and in any Rider executed by Borrower and recorded with it.
~~~~,.~~-c~·-~~~~~~~~~--<s~)
KARIN E. WINNER -Borrower
-Borrower -Borrower
- - - - - - - - - - - - - - - - - - - - - - (Seal) - - - - - - - - - - - - - - - - - - - - - - - (Seal)
-Borrower -Borrower
-------------(Seal) -------------(Seal)
-Borrower -Borrower
115-10376133
-~A(CA) (0207) Page 14 of 15 Form 3005 1/01
®
16066
State of California
County of SAN DIEGO
On &±uk.- tf';J60 ~
.. - . - . - . -.
KARIN E. WINNER, A Single Woman and LORETTA A. HEARN, an Unmarried
Woman
, perseRally IERSWfl te me
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)..i&~Bsubscribed
to the within instrument and acknowledged to me that lleld~ executed the same in "'iislhen'LEiJT"
authorized capacity(ies), and that by h~h••'l~gnature(s) on the instrument the person(s) or the entity
upon behalf of which the person(s) acted, executed the instrument.
=========~~===~~=~
I Q''F'~..
1i •
TERESAM.WAYSON
COMM. # 1330216
I
~ : NOTARY PUBUC-CAUFORNIA ;I
", SAN DIEGO COUNTY !!
I My Comm. Exp. Nov. 13, 2005 I
c::: ======.=======
115-10376133
4G!.,-6A(CA) 102011 Page 15 of 15
lo;tl.~ Fonn 3005 1101
File No: 04606196
16067
EXHIBIT "A"
All that certain real property situated in the County of San Diego, State of
California, described as follows:
Parcel 1:
Lot 1 of 3970 Utah Street Condominiums, in the City of San Diego, County of
San Diego, State of California according to Map thereof No. 15121 filed in the
Office of the County Recorder of San Diego County, September 20, 2005.
PARCEL 2:
PARCEL 3:
The exclusive right to the use, possession and occupancy of those portions of
PARCEL 1 above which are described in the Declaration and shown on the
Condominium Plan as "Exclusive Use Common Areas," bearing the same
numerical designation as the Living Unit described in PARCEL 2 above, which
shall be appurtenant to PARCEL 2 described above.
PARCEL 4:
The exclusive right to the use, possession and occupancy of those portions of
PARCEL 1 described above and designated on the Condominium Plan as:
Page 3
-- ---~-------
The foregoing Garage, Carport, Parking Space and Storage Exclusive Use area
assignments, as an appurtenance to Parcel 2, shall supersede and take
precedence over any assignment or conveyance of the same that may be
identified and previously assigned to the Condominium Unit described in Parcel 1
above in the Condominium Plan.
Page 4
..
16069
~~~= 100431900103274765
[Property Address]
1-4 FAMILY COVENANTS. In addition to the covenants and agreements made in the
Security Instrument, Borrower and Lender further covenant and agree as follows:
A. ADDITIONAL PROPERTY SUBJECT TO THE SECURITY INSTRUMENT. In addition to
the Property described in the Security Instrument, the following items now or hereafter
attached to the Property to the extent they are fixtures are added to the Property description,
and shall also constitute the Property covered by the Security Instrument: building materials,
appliances and goods of every nature whatsoever now or hereafter located in, on, or used, or
intended to be used in connection with the Property, including, but not limited to, those for
the purposes of supplying or distributing heating, cooling, electricity, gas, water, air and light,
fire prevention and extinguishing apparatus, security and access control apparatus, plumbing,
bath tubs, water heaters, water closets, sinks, ranges, stoves, refrigerators, dishwashers,
disposals, washers, dryers, awnings, storm windows, storm doors, screens, blinds, shades,
curtains and curtain rods, attached mirrors, cabinets, paneling and attached floor coverings,
all of which, including replacements and additions thereto, shall be deemed to be and remain
a part of the Property covered by the Security Instrument. All of the foregoing together with
the Property described in the Security Instrument (or the leasehold estate if the Security
Instrument is on a leasehold) are referred to in this 1-4 Family Rider and the Security
Instrument as the" Property."
B. USE OF PROPERTY; COMPUANCE WITH LAW. Borrower shall not seek, agree to or
make a change in the use of the Property or its zoning classification, unless Lender has
agreed in writing to the change. Borrower shall comply with all laws, ordinances, regulations
and requirements of any governmental body applicable to the Property.
C. SUBORDINATE UENS. Except as permitted by federal law, Borrower shall not allow
any lien inferior to the Security Instrument to be perfected against the Property without
Lender's prior written permission.
D. RENT LOSS INSURANCE. Borrower shall maintain insurance against rent loss in
addition to the other hazards for which insurance is required by Section 5.
115-10376133
MULTISTATE 1-4 FAMILY RIDER- Fannie Mae/Freddie Mac UNIFORM INSTRUMENT
Fonn 3170 1101
S-57R (0401 ).01 /~;,_[)};
Pag~ 1 of 3 lnitiai~../-
VMP Mortgage Solutions
(800)521-7291
16070
BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained
in this 1-4 Family Rider. ~~
---------'----(Seal) _ _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
_ _ _ _ _ _ _ _ _ _ _ _ (Seal) _ _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
_ _ _ _ _ _ _ _ _ _ _ _ (Seal) _ _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
115-10376133
Q-57R (0401 ).01 Page 3 of 3 Fonn 3170 1/01
-, .
"'
16072
~UN: 100431900103274765
CONDOMINIUM RIDER
THIS CONDOMINIUM RIDER is made this 30th day of September, 2005
and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed
of Trust, or Security Deed (the "Security Instrument") of the same date given by the
undersigned (the "Borrower") to secure Borrower's Note to HOME123 CORPORATION, a
Cal1forn1a Corporat1on.
(the
"Lender") of the same date and covering the Property described in the Security Instrument
and located at:
115-10376133
Section 3 for the Periodic Payment to Lender of the yearly premium installments for property
insurance on the Property; and (ii) Borrower's obligation under Section 5 to maintain property
insurance coverage on the Property is deemed satisfied to the extent that the required
coverage is provided by the Owners Association policy.
What Lender requires as a condition of this waiver can change during the term of the
loan.
Borrower shall give Lender prompt notice of any lapse in required property insurance
coverage provided by the master or blanket policy.
In the event of a distribution of property insurance proceeds in lieu of restoration or
repair following a loss to the Property, whether to the unit or to common elements, any
proceeds payable to Borrower are hereby assigned and shall be paid to Lender for application
to the sums secured by the Security Instrument, whether or not then due, with the excess, if
any, paid to Borrower.
C. Public Uability Insurance. Borrower shall take such actions as may be reasonable to
insure that the Owners Association maintains a public liability insurance policy acceptable in
form, amount, and extent of coverage to Lender.
D. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, payable to Borrower in connection with any condemnation or other taking of all
or any part of the Property, whether of the unit or of the common elements, or for any
conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. Such
proceeds shall be applied by Lender to the sums secured by the Security Instrument as
provided in Section 11.
E. Lender's Prior Consent. Borrower shall not, except after notice to Lender and with
Lender's prior written consent, either partition or subdivide the Property or consent to: (i) the
termination of the Condominium Project, except for abandonment or termination required by
law in the case of substantial destruction by fire or other casualty or in the case of a taking
by condemnation or eminent domain; (ii) any amendment to any provision of the Constituent
Documents if the provision is for the express benefit of Lender; (iii) termination of professional
management and assumption of self-management of the Owners Association; or (iv) any
action which would have the effect of rendering the public liability insurance coverage
maintained by the Owners Association unacceptable to Lender.
F. Remedies. If Borrower does not pay condominium dues and assessments when due,
then Lender may pay them. Any amounts disbursed by Lender under this paragraph F shall
become additional debt of Borrower secured by the Security Instrument. Unless Borrower and
Lender agree to other terms of payment, these amounts shall bear interest from the date of
disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to
Borrower requesting payment.
Initial~~
115-10376133
.,
G-8R(0405) Page 2 of 3 Form 3140 1/01
16074
BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained
in this Condominium Rider.
-sar:; B.~~--"-
KARIN E. WINNER
(Seal)
-Borrower
:k&~(Seal)
LORETTA A. HEARN -Borrower
_ _ _ _ _ _ _ _ _ _ _ _ (Seal) _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
_ _ _ _ _ _ _ _ _ _ _ _ (Seal) _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
_ _ _ _ _ _ _ _ _ _ _ _ (Seal) _ _ _ _ _ _ _ _ _ _ _ _ (Seal)
-Borrower -Borrower
115-10376133
.,
Q-8R(0405) Page 3 of 3 Fonn 3140 1/01
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 9
'
Page: 1 Document Name: untitled ~
•
'
I
~:
•
'
•
•
•
"
Date: 4/l/2015 Time: 11:01:42 AM
Page: 1 Document Name: untitled
'
•'
'
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OOC NO
'
749560 RECORDING DATE 10/23/06 CDRTAC
•
MAP 001~!- Ai. 7ADENA LND 137287 NET 1.11153 2280.52
ASSESSEE DESCR LOT 9 8LK C !MP 74883 SA 5119-11 3.00
CLOANINGER TODD S REVOCABLLE"TRUST DB-17-o6 HOX 7000 SA 5119-14 5.86
MAIL ADDR CLDANINGER TODD S REVOCABLE TRUST"08-11-0 NET 205170 SA 6085-97 22.10
11131 INVIERNO OR"SAN DIEGO CA 92124 L + I 212170 SA 6727-18 11.50
SITUS 3339 33RD ST SA 6754-18 10.00
FIRST INSTALLMENT SECONO INSTALLMENT TOT TAX 2332.98
TRANS HIST: 12/10-12 205250045 1 1166.49 r;.,io 04105-00 126510125 1 1166.49 PAID INST 1166.49
•
453-513-1D-00 08001
-
SECUREO ASSESSME~T ROLL IN THE COUNTY OF SAN DIEGO, ~A FISCAL YEAR 201:-13 AS Of 08-13-2013
----------------------------------------------------------------------------------------------------------------------------------------------·
453-3!3-11-QO 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2012-13 AS Of 08-13-2013
,,"'" ••
SECOIIEO ASSES91ENT I!Oll IN THE Cl;li..NTV Of SAH DIEGO, CA fiSCAL VEAl! 2011•12 08•16·2012
..
.II
DOC NO 21~7 RECORDING DATE 4126/00 COII.TAC "41 '
~-;
JoWl 001663
ASSESSEE
SHAH SHNoH lo&IR*
ALT~EHA.
DESCII LOT 6 aLto( C
7000
2G0332
26/332
NET 1.11260,
~119·11
SA 511\H4
SA 606~·?7
SA 6727•111
....
2a96.?6
5.00
1a. 'lD
11,50 •
"AN!
FIRST INSTAllloEPU
HIST1 12/ot~OO 372a3S71? 1 1473,01 PAID
SEC<Nl INSTAlliENT
0512a·OO 374m19'J 1 1473,01 PAID •• 67~4-111
TOT TAlC
10,00
29~.02
IHST •1473.01
4~5-~13•07·00 08001 SEC\JIED ASSESSW&IT tOll IN THE COUNT'f OF $AN OlfGO, CA fiSCAl YEM 2011·12 AS Of 08·16·2012
OOC NO !!6547~ AECOI!OINQ DATE 10/161119 - COIIToiC &212 PAGE 113,742
tw> 001665
MSESSEE
FAAES MIOW.l E~ A
ALT~ENA '
OESCII LOT 1 ILK C
....
SEC\JAED ASSES91ENT I!OLL IH THE COUNTY Of SAN DIEGO, CA ~ OF 08•16•2012
DOC NO 749560 RECOI!OING DATE 10123/06 CO!HoiC
~ 00166!'i ~TADfHA. • Ll<> 134~?6 HfT 1,112ao 2256.~4
ASSESSEE OESCR LOT 9 liLt< C 1... 7341e SA !S11?•11 5.00
CLOANINGER TOOO S REYOCMLLE•TRUST Ofl·17·06
NAIL Nl011'3S5? "10 ST~ DIEGO CA 92104
SITUS 3'39 331!0 ST ~ L• I
''"
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7000
l01011
20<011
SA 5119•14
$A 404!·97
SA' 6727•1!
1~.70
11,50
~!- FIRST INSTALU€HT SEC® INSTAL~T SA 6754•1! 10,00
~142,95 PAID 228~. jl()
TIIANS HIST1 11124·2!1 6321005?7 1 D4109•aD 204?80037 1 1142,, PAlO
. TOT TAlC
---~~---~oooooooo••~------~-------~~--~-------------~-~-----~-----~-~----------~--·•••••o•~-----~-~-------~------------·---·-·-~~-~~M-~---------
INST 1142.96
..
SEct.JIIEO ASSESSioEHT ROLL-IN THE COUNT'f OF 5»1 DIEGO, CA
OOC t.\0 52?084 IIEc;ORDING DATE 9/23/09
FISCAL VEAl: 2011•12
CORTAC
"'" oa-16·2012
"
/>WI 001663
ASSESSEE
AlT.tDEHA
DE$CII LOT 10 &LK C
Hf:i.RH LORETTA lti.IST 04·~·00
SUUS SS" SSRO ST .
,_
to¥.IL NlOA 333~ 3310 ST•SN{ DIEGO CA ?2104
~ U<l
I"'
HOK
NET
L• I
91123
1~208
7000
269391
2765?1 .
NET 1.112ao
511?-11
SA 5119·14
SA 60e·91
6727•11'
....
29?1,18
5.00
18,70
11.ao
fiRST INSTAL.UENT $EC® !NSTo\LLWENT SA 4754•11 10,00
T!UriiS HIST1 12/0fi·OO 16!i1000U 1 1523,42 PAID D4/10•00 021120023 1 1~23,42 PAID TOT T.UC 3046.84
II'ISJ 1523.42
SECURED ASSESSMENT tOLL IN THE COUNTY Of 5N{ DIEGO, CA FISCAL VE.U: 2011•12 AS OF ~-16·2012
OOC NO 536783 RECOI!OIIo.ir. DA.lE 10/16/91 (DlTAC ~?50 PAGE 113,743
MI.P 001663 AlTADENA U<l 44183 NfT 1,11::ao 1268,60
DESCII LOT 11 5l.K C 5,00
ASSESSEE
CASTELLI VJNCENlO&GLOliA M
to4ot.IL .tOOl 1174 SfA REEf OR;•SAN DIEGO CA ?2154
""
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L• I
6?818
114001
114001
SA 511?·11
SA-' 811?·14
SA 601~·91
6,2D
20.11
SITUS 3325·2733110 ST SA 6727•18 11,50
FIRST INSTALLIENT SECCKI lt-tSTAlUoEHT SA 67~·18 10,00
TIIANS HIST1 11/21•00 310711~19 1• 062,74 PAID 03121•00 314302712 1 602,74 P~IO TOT To\ll 1S2!i.lo6
~·
GRID: 02
ASSESSEE DESC.:. LOT 6 BLX C 1.. 86733 SA 5119-11 3.00
SHAW SHA14>1 lof.JRIM
!MIL AODR 3357 331!0 ST"SAN DIEGO CA 92104
SITUS 3357 331!0 ST
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NET
L<!
7000
258535
265335
Sl,
SA
SA
5119-14
6085-97
6727-18
6.20
18.70
11.50
FIRST INSTALLMENT r SECOND INSTALLMENT SA 6754-18 10.00
TRANS HIST: 12/10-20 053990583 1 1447.48 PAID 04/07-00 0859<50289 1 1447.48 PAID TOT TAX 2894.96
INST 1447.48
453-513-0B-00 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA Fl~A - YEAR 2010-11 AS OF 08-23-2011
~ DOC NO 157817 RECORDING OATE 3/07/07 CORTAC
MAP 001663 ALTADENA lND 77400 NET 1.10150 1373.50
ASSESSEE DESCR LOT 8 8LK C I~. 47294 SA 5119-11 3.00
WIEGAND FAMILY TRUST 11·16-06*N>I!>#WIEGAND RUSSELL 04.JULIE A NET 124694 SA 5119-14 6.56
MAIL N>DR WIEG.6ND FN-IILY TRUST 04-13-10*ANDIWIE L + I 124694 SA 6085-97 j- 26.18
_ 2619 GRN>JDVIE~ ST"SN>J DIEGO CA 92110 SA 6727-18 11.50
SITUS 3345-4733RD ST SA 6754-18 10.00 •
453-513-09-00 08001
FIRST INSTALLMENT
TRANS HIST, 11115-DD 035160181 1 715.37 PAID
SECOND INSTALLMENT
11/1S-OO 035160182 1 715.37 PAID
SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2010-11 AS OF 08-23-2011
TOT TAX
INST
~
1430.74
715.37
-
OOC NO 749560 RECORDING OATE 10/23/06 . CORTAC PAGE 183,951
MAP 001663
ASSESSEE •
ALTADENA
DESCR LOT 9 8LK C
CLOANINSER TOOO S REVOCABLLE*TRUST 08-17-06
""
1. .
HOX
133591
72867
7000
NET 1.10150
sr. 5119-11
SA 5119-14
2197.02
3.00
6.20
MAIL ADOR 3339 33RD ST*SAN DIEGO CA 92104
SITUS 3339 33RD ST
FIRST INSTALLMENT
TRANS HIST: 11122-23 632700891 ·! 1123.21 PAIO
SECOND INSTALLMENT
03127-28 608720841 1 1123.21 PAID
NET
L • I
199458
206458
SA 6085-97
SA 6727-18
SA 6754-18
TOT TAX
18.70
'11.50
10.DD
2246.42
j
' INST 1123.21
453-513-10-00 08001
9G442
.08-23-2011
453~513-11-00 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAA 2010-11 ASOF 08-23-2011
DOC NO 536783 R£COROING DATE 10/16/91 CORTAC 5950
MAP 001663 ALTADENA 43853 NET 1.10150 1246.34
ASSESSEE" DESCR LOT 11 BLK C
CASTELLI VINCENZO&GLORIA M
""
IMP
NET
69297
113150
SA
SA
5119-11
5119-14
3.00
6.56 ••
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SITUS 3325-2733RO ST SA 6727-18 11.50
FIRST INSTALLMENT SECOND INSTALLMENT ' SA 6754-18 10.00
TRANS HlST: 11/19-00 371378716 1 651,79 PAID 03/18-00 375199216 1 651.79 PAID TOT TAX 1303.58
INST 651.79
------------------------------------------------------------------------------------------------------------------------------------~-----------
SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA fiSCAL YEAR 2009·10 AS OF 08•20•2010
DOC NO 214507 RECORD!~ DATE 4/26/00 CORTAC PN;£ 183,567
~? 001663
ASSESSEE
SHAH 5!-W+I ~IRMA
AL T,.IDENA
OESCR LOT 6 8LK C ""
1...
179027
86940
7000
NET 1,10195
SA 0119·11
SA 5119·14
2653.66
3,00
5,92
~IL .AODR 3;,s7 33RO ST"~AN DIEGO CA 92104
S nus 3~7 33RO ST '"'
NET
l • I
256967
265967
SA 6085·97
SA 6727•18
16,70
11,50
FIRST INSTALL~N';' SECONl INSTALLMEHT • SA 6754·18 10.00
TR-'HS NJST1 1210?·00 105050067 1 1451,40 PAID 04/10·21 152100093 1 1451.40 PAID TOT TAX 2902.80
INST 11t51,"iD
SECURED ASSESSf.IENT ROLL IN TNE COUNTY OF S.t.'4 DIEGO, CA FISCAL YEAR 2009·10 08•20•2010
OOC NO 565475 RECORDING OAT£ 10/16/89 CORTAC 5212 "'"
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ASSESSEE
FARES MICHAEL E&MARY A
ALT.AOENA
OESCR LOT 7 81.)( C
,
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HOX
124517
163605
7000
NET 1,10195
SA 5119-11
SA 5119·14
'~97,62
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•
~IL .AODR 3351 "'RO ST.,SAN DIEGO CA 92104 NET 281122 SA 6005-97 18,7D
s nus 3351 331W s T l>l 288122 SA 6727•18 11.50
FIRST INSTALLMENT SECONl INST~LMENT SA 6754•18 1D,OO
I TR,tri{S HISTI 12/D7•00 375941365 1 1573.47 PAlO 04/07•00 379991131 1 1573,47 PAlO TOT TAX 3146,94
I INST 15T",47
'
------------------------------------------------------------------------------------------------------------------------------------------------
453•513-08•00 06001 SECURED ASSESSMENT ROLl. IN TNE COUNTY OF SAN DIEGO, CA FISCAl. YEAR 2009•10 oa-20-2010
loW 001663 .Al. TN>ENA
00C NO 157817 RECORDING DATE 3/07/07 CDRTAC
Ltl1 ·-
"'"
77561t NET1,10195 1377."2
ASSESS££" DESCR LDT 8 8LK C
HIEGJ.NO F,.ij.jll.Y TRUST 11·16·06"Nl>IHJEGAN:l RUSSEll. DLJUI.IE A
I""
NET
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SA
SA
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5119-14
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6,28
~II. ADOR HIEG»> F»>ILY TRIJST 04•13•1D•,AthHIEGJ.NO C• I 12"iP91 SA 6085-97 26,18
2619 GRANDVIEH ST"S~ OJ£00 Co\ 92110 SA 6727·16 11,50
snus 3345·4735RO sT SA 6754-18 10,00
FIRST INSTALLJ.ENT SEC® INSTALLIEHT TOT TAX 1434,28
TRANS HIST1 11/11•00 090'1101!83 1 717,11t PAID 11/13•00 090910464 1 717,14 PAID INST 717,14
~---------------~-~-----------------------------------------------------------------------------------------------------------------------------
45NI13•09•00 Da001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAl. YEAA 200P·1D AS OF 06·20·2010
c OOC NO 749:$60 RECORDING DAT£ .10/23/06 CORT.M:
MoU' 001663 AlT.AOEtM 1"'909 NET 1,10195 2203,3/t '
ASSESSEE OESCR LOT 9 8LK C
CLD.t.'4INGER 100!) S RE~OCABI.LE•TRUST 08•17•06
"" ,
1... 73041
7000
... SA
SA
5119·11
5119·1"i
3,00
~ll .AODR 3'33? 33RD ST"S~ DIEGO CA 92104
snvs ::1339 33r<O sT ''"
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C• I 206950
SA
SA
6085·97
6727•18
5.92
18.70
11,50
FlRST INSl.Al.LMENT S£COOO JNSTALLM(NT SA 6754•18 10,00 •
TIW'S NIST1 12/06·00 104260345 1 1126,23 PAID 04/lle•O'l 609905251 1 1126,23 PAID TDT TioX 2252,46
i •• INST 1126,23
----------------------------------------·-----------------·----------------------------···-------······----------------------·----------·-------
S£CUREO ASSESHHT ROLl. IN lN£ COUNTY OF SAN DlEGQ, CA FISC~ YEAA 2009•10 AS OF 08·20·2010
OOC HQ 776::130 R£COROIHG PAT£ 11)/2!5/01 CORT...C PAGE 183,588
"",,..
~ 001663 "'.Al.T.AOENA 90657 NET 1,10195 2952,P8
ASSESSEE DESCR LOT 10 8t.K C 184321 SA 5119•11 3,00
HEAAN LORETTA A _ • 5,92
~Tl. .AODR HEARN LOR£TTA TRUST 04·25·00
::13::15 :5::1110 ST"~ DIEGO CA 92104
NET
C• I
''" 7000
267976
274978~
SA 5119·14
SA 6085·97
SA 6727·18
18.70 -.
11.50
snus ~3" 33RD ST SA 6751t•18 10,00b
FIRST INSTALLMENT SEC® INSTALLIEHT TOT TAX 3002,10
TRANS HIST1 12/10•00 106730197 1 1501.~ PAID 04/11H:!i 1li8400102 1 1501.05 PAID INST ..;.; 1501.05
l'roduc.ad bv The Pannllnt All1onca
453-513-10-00 GRiu: LOS
1153-513-10-00 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2008-09 AS OF 08-19-2009
~
------------------------------------------------------------------------------------------------------------------------------------------------
~
SECURED ASSESSIENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL ~ 2008-09 AS OF 08-19-2009
•
453-513-12-00 08001 SECURED ASSESSMENT ROU.. IN TH£ COLNTY OF SAN DIEGO, CA fiSCAL YEAR 2008-09 AS Of 08-19-2009
SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN OIEGO, CA FISCAL YEAR 2008-09 AS Of 08-19-2009
'
453;-513 10-00. ~-'It
• GRID: H13
SECURED ASSESSMENT ROLL IN THE COUNTY OF SN-1 DIEGO, CA FISCAL YEAR 2007~08 AS OF 08-24-200&
•
------------------------------· ·----------------------------------------------------------------------·--------------------------------------------
453-513-11-00 08001 SECURED ASSESSIENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2007-QS ASOF oa~24-2008
•
.. OOC NO 536783 RECORDING DATE 10/16191 .., CORTAC 5950
MAP 001663 AlTADENA U.0 42252 NET 1.09816 1197.18
ASSESSEE OESCR LOT 11 6LK C IMP 66765 SA 5119-11 3.00
CASTELLI VINCEHZO&GL~lA M • NET 109017 SA 5119-14 6.28
!MIL ADDR 1174 SEA REEF OR"SN-1 DIEGO CA 92154 L + I 109017 SA 6085-97 26.18
SITUS 3325~2733RO ST SA 6727-16 11.50
FIRST INSTAlLIENT SEcoti> INSTALLMENT SA 6754-16 10.00
TRANS HIST: 12106-00 370231195 1 627.07 PAlO 04103~00 374030867 1 627.07 PAID IDT TAX 1254.14
INST 627.07
'
. -
.
----------------------~------~-------------------------------------------------------------------------------------------~----------------------
SECURED ASSESSMEMT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2007-06 AS OF OB-21r2008
453-513-12-oD 08001 I
11762 RECORDI.:._, DATE 1/06106 CORTAC I
ooc "' LN> 1!29789 NET 1.09816 6740.56
MAP 001663
ASSESSEE
ALTADENA
OESCR LOT 12 6LK C •· IMP 191017 SA 5119-11 3.00
HERR FAMILY REVOCABLE TRUST•12-09-05 HOX 7000 SA 5119-14 5.92
!MIL ADDR 3321 33RO ST•SN{ DIEGO CA 92101!
SITUS 3321 33RO ST
FIRST INSTALL..IENT SECOND INSTAlLMENT
. NET
l • I
613806
620806
SA 6085-97
SA 6727~18
SA 6754-18
16.70
11.50
10.00 •
TRANS HJST: 12110-11 634501251 1 3394. 81! PAID 04108-09 610007894 1 3391!. 611 PAID TOT TAX 6769.68
INST 3391!.64
453-513-13-00 08001
•
SECURED ASSESSIENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2()07-0S
1
f--
• 453-513-09-00 • .
GRID: 112
453-513-09-00 08001 SECURED ASSESSI>ENT ROLL IN THE CQUIITV OF SAN DIEGO, CA FISCAL YEAR 2006-07 AS OF 08-18-2007
• 453-513-10·00 08001 SECURED ASSESSMENT ROLL' IN~ THE CC'v."'T~' OF SAN DIEGO, CA
•
FISCAL VEAR 2006-07 AS OF 08-18-2007'
DOC NO 72496
'RECORDING DATE 1/29/04 CORTAC
MAP 001663 ALTADENA lNO 421362 NET 1.10025 6619.40
ASSESSEE OESCR LOT 12 BLK C SA 5119-11
HERR CHRISTOPHERBKIRBV SARAH '· IMP
HIJK
187272
7000 SA 5119-14
3.00
6.36
t.'AIL ADOII HERR FAMILY REVDCAalE TRUST 11 12-D9-05 NET 6016311 SA 6085-97 18.70
' 3321 33RO ST"SAN DIEGO CA 92104 L • I 608634 SA 0727-18 11.50
SITUS 3321 331!0 ST SA 6754-18 10.00
FIRST INSTALLMENT SECOND JNSTALU>£NT TOT TAK 6669.02
TRANS HIST: 12/08-QD 150750033 1 3334.51 PAID 04/03-01! 6091!021!65 1 3334.51 PAID INST 3334.51
•
Prod.uoed ))y The Pennant Alliance
453-513-07-DD
<'
GRID: Jl6
453-513-07-00 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2005~06 AS OF 08-24-2006
453-513-08-DD 08001 SECURED ASSESSMENT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2005-06 AS OF 08-24-2006
'
DOC NO 117161 RECOROitffi DATE 3/27/86 CORTAC
MAP 001663 ALTADENA Ll<l 71677 NET 1.11250 1284.66
ASSESSEE OESCR LOT 8 8LK C IMP 43799 SA 5119-11 3.00
WIEGAND WILLIAM H&LEE A*ANG#WlEGAND RUSSELL D&JUUE A NEt 115476 SA 5119-14 9,06
MAIL ADDR 2619 GRANDVIEW 5T*5AN DIEGO CA 92110 L • I 115476 SA 6085-97 f 26.18
SITUS 3345-4733RD ST
• SA 6727-18 11.50
FIRST INSTALLMENT SECOND INSTALLMENT SA 6754-18 10.00
TRANS HIST: 12/01-00 036520220 1 672.20 PAID 12/01-DO 036520221 1 672.20 PAlO TOT TAX 1344. 40
INST 672.20
453-513-09-DO 08001 SECURED ASSE55MENT ROLL IN THE COUNTY OF ~ DIEGO, CA FISCAL YEAR 2005-06 AS OF 08-24-2006
MAIL ADDR 3339 33RD ST*SAN DIEGO CA 92104 NET 184193 SA 6085-97 18.70
SITUS 3339 33RD ST L + I 191193 SA 0727-18 11.50
FIRST INSTALLMENT SECOND INSTALLMENT SA 6754-18 10.DD
TR.AJ.!S HIST: 12/01-00 036380243 1 1050.44 PAID 03/16-DO 069390051 1 1050.44 PAID TOT TAX 2100.88
~ lNST 1050.44
------------------------------------------------------------------------------------------------------------------------------------------------
< '
"
453-513-10-00 08001 SECURED "
ASSES5MENT ROLL IN IHE COUNTY OF SAN DIEGO, CA FISCAL YEAR 2005-06 ASOF 08-24-2006
'
'
453 513-08-00 GRID: JOB
453-513-08-00 08001 SECURED ASSESS!o£NT ROLL IN THE COUNTY OF SAN DIEGO, CA FISCAL VEAR 2004-05 AS OF 08-19-2005
•
DOC NO 117161 RECORDING DATE 3/27/86 COIHAC PAGE 170,048
MAP 001663 ALTADENA LNO 70272 NET 1.11827 1266.02
ASSESSEE OESCR lOT 8 BLK C IMP 42941 SA 5119-11 3.00
WIE6ANJ WILLIAM H&LEE A*MmWIEGMD RUSSELL O&JULIE A NET 113213 SA 6085-97 25.24
MAIL ADOR 2619 GRN>IOVIEW ST"SAN DIEGO CA 92110 L • I 113213 SA 6727-18 11.50
SITUS 3345-4733RO ST ..- SA 6754-18 10.00
FIRST INSTALLNENT SECOND INSTALlMENT TOT TAX 1315.76
TRANS HIST: 11/30-00 112890157 1 657.88 PAID 11/30-00 112890158 1 657.88 PAID INST 657.88
453-513-09-00 08001 SECURED ASSESSr.ENT ROLL IN THE CDUNTV OF SAN DIEGO, CA FISCAL VEAR 2004-05 AS OF 08-19-2005 •
DOC NO 282092 RECDROINS DATE 4/28/99 CDRTAC
MAP 001063 ALTADENA LND 121288 NET 1.11827 2017.86
ASSESSEE OESCR LOT 9 BLK C IMP 66157 SA 5119-11 3.00
CLDANINGER TODD 5 HDX 7000 SA 6085-97 18.04
MAIL AllOR 3339 3~ ST*SAN DIEGO CA 92104 NET 180445 SA 6727-18 11.50
SITUS 3339 33RD ST L + I 1874<5 SA 6754-18 10.00
FIRST. INSTALLMENT SECOt.D INSTALLMENT TOT TAX 2060.40 -~
TRANS HIST: 11/16-00 107110267 1 1030.20 PAID 02/17-DD 140870163 1 1030.20 PAID INS! 1030.20
'
453-513-10-00 08001
82113
08-19-2005
1374.71 PAID
SECOND INSTALLMENT
04/10-12 161700099 1
~
1374.71 PAID
L • I 249061 SA 6754-18
TOT TAX
INS!
10.00
2749.42
1374.71
•
•
SECURED ASSESSMENT ROLL IN THE CQll.lTY OF SAN DIEGO, CA FISCAL VEAR 2004-05
453-513-12-00 08001 SECURED ASSESSMENT ROLL IN THE COVHTV OF SMI DIESD. CA FISCAL VEAR 2004-05 AS OF 08-19-2005
~
DOC NO 9547 RECORDING DATE 8/19/03 CORTAC
MAP 001663 ALT.6DENA CROSS-REF 99999-999-999-99-99
ASSESSEE OESCR LDT 12 8LK C lNO 260000 NET 1.11827 4919.26
KICK BRIAN L&.Jftt.IIFER A ~ 114> 179900 SA 5119-11 3.00
MAll .6DOR HERR CHRISTOPH£RliKIRSY SARAH NET 439900 SA 6085-97 18.04
•
•
•
Produced by The. Pennant Alliance .•
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 10
County of San Diego Treasurer - Tax Collector Page 1 of 2
FAQs Español
1 4 FOR FISCAL YEAR BEGINNING JULY 1, 2014 AND ENDING JUNE 30, 2015
PAY ONLINE WWW.SDTREASTAX.COM TAX BILL YEAR
5
PROPERTY ADDRESS - DESCRIPTION - SUBDIVISION
2
PAY BY PHONE (855) 829-3773 2014-2015
PROPERTY ADDRESS CANNOT BE SHOWN IN COMPLIANCE TO GOVERNMENT
CODE SECTION 6254.21.
3
QUESTIONS (877) 829-4732
6 7
CURRENT MAP NO. DESCRIPTIONS VALUES & EXEMPTIONS
WINNER KARIN E TRUST 09-28-04
OWNER
002061 LAND $198,826
IMPROVEMENTS $372,979
8
SPECIAL DOCUMENT NO. TOTAL L&I $571,805
MESSAGES
PERSONAL PROPERTY $0
960036
OWNER EXEMPTIONS
MESSAGES 9
DOCUMENT DATE HOMEOWNERS -$7,000
OTHER $0
10/8/2004
NET TAXABLE VALUE $564,805
10
OWNER OF
RECORD ON WINNER KARIN E TRUST 09-28-04
JANUARY 1, 2014
11 12 13 14 15 16
PARCEL/BILL NO. TAX RATE AREA CORTAC NO. 1ST INSTALLMENT 2ND INSTALLMENT TOTAL DUE
17 18
YOUR TAX DISTRIBUTION YOUR TAX DISTRIBUTION
1% TAX ON NET VALUE 1.00000 5648.04 UNIF BOND SAN DIEGO-PROP MM 11/03/1998,2014REF R-3 NET 0.01214 $68.57
VOTER APPROVED BONDS: SAN DIEGO COMM COLL-PROP S 11/05/2002, SER 2003A NET 0.00000 $0.00
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, SER 1999A NET 0.01093 $61.73 SAN DIEGO COMM COLL-PROP S 11/05/2002, SER 2003B NET 0.00296 $16.72
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, SER 2000B NET 0.00616 $34.79 SAN DIEGO COMM COLL-PROP N 11/07/2006, SER 2006A NET 0.00734 $41.46
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, SER 2001C NET 0.00663 $37.45 SAN DIEGO COMM COLL-PROP S 11/05/2002, SER 2009C NET 0.00341 $19.26
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, SER 2002D NET 0.01038 $58.63 SAN DIEGO COMM COLL-PROP S 11/05/2002, 2011 REF NET 0.00155 $8.75
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, SER 2003E NET 0.00181 $10.22 SAN DIEGO COMM COLL-PROP N 11/07/2006, SER 2011 NET 0.00787 $44.45
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, 1998F REF NET 0.00000 $0.00 SAN DIEGO COMM COLL-PROP S 11/05/2002, SER 2011 NET 0.00320 $18.07
UNIF BOND SAN DIEGO-PROP MM 11/03/1998, 1998G REF NET 0.00273 $15.42 SAN DIEGO COMM COLL-ELECTIONS 2002&2006, 2012 REF NET 0.01213 $68.51
UNIF BOND SAN DIEGO-PROP MM 11/03/98, 2006F-1 REF NET 0.00422 $23.83 SAN DIEGO COMM COLL-PROP N 11/07/2006, SER 2013 NET 0.00535 $30.22
UNIF BOND SAN DIEGO-PROP MM 11/03/98, 2005G-1 REF NET 0.00350 $19.77 SAN DIEGO COMM COLL-PROP S 11/05/2002, SER 2013 NET 0.00000 $0.00
UNIF BOND SAN DIEGO-PROP S 11/04/08, SERIES 2009A NET 0.00084 $4.74 SAN DIEGO CITY OPEN SPACE FACILITY DIST NO. 1 D/S NET 0.00000 $0.00
UNIF BOND SAN DIEGO-PROP S 11/04/08, SERIES 2009B NET 0.00000 $0.00 SAN DIEGO CITY ZOOLOGICAL EXHIBITS - MAINTENANCE NET 0.00500 $28.24
UNIF BOND SAN DIEGO-PROP S 11/04/08, SERIES 2010C NET 0.00000 $0.00 MWD D/S REMAINDER OF SDCWA 15019999 NET 0.00350 $19.77
UNIF BOND SAN DIEGO-PROP S 11/04/08, 2010D QSCB NET 0.00000 $0.00 TOTAL ON NET VALUE 1.17901 $6,659.10
UNIF BOND SAN DIEGO-PROP S 11/04/08, SER 2012E NET 0.00736 $41.57 FIXED CHARGED ASSMTS: PHONE #
UNIF BOND SAN DIEGO-PROP MM 11/03/1998,2012REF R-1 NET 0.00000 $0.00 STREET LTG MAINT #1 619-685-1326 $25.58
UNIF BOND SAN DIEGO-PROP S 11/04/08, 2012 REF R-2 NET 0.00000 $0.00 VECTOR DISEASE CTRL 800-273-5167 $5.86
UNIF BOND SAN DIEGO-PROP Z 11/06/12, SER 2013A, A1 NET 0.00000 $0.00 MWD WTR STANDBY CHRG 866-807-6864 $11.50
UNIF BOND SAN DIEGO-PROP Z 11/06/12, SER 2013B NET 0.04394 $248.18 MOSQUITO SURVEILLANC 800-273-5167 $3.00
UNIF BOND SAN DIEGO-PROP Z 11/06/12, SER 2013C NET 0.01606 $90.71 CWA WTR AVAILABILITY 858-522-6900 $10.00
UNIF BOND SAN DIEGO-PROP S 11/04/08,SER 2014F NET 0.00000 $0.00 TOTAL AMOUNT $7,050.79
Secured
Installment Delinquent Amount Total
Parcel Number Installment Status Action
Amount After Due Due
PAID W/PENALTY ON
1st $3,357.52 12/10/2014 $0.00
12/15
346-231-20-00 $3,357.52
2nd $3,357.52 4/10/2015 DUE $3,357.52 Add 2nd to Cart
Secured property tax payment stubs are not available online. You can submit a payment without a stub. Please include your 10 digit parcel
or tax bill number in the memo portion of your check. You can mail a payment to:
https://iwr.sdtreastax.com/SanDiegoTTCPaymentApplication/SecuredDetails.aspx?parcel... 3/25/2015
County of San Diego Treasurer - Tax Collector Page 2 of 2
https://iwr.sdtreastax.com/SanDiegoTTCPaymentApplication/SecuredDetails.aspx?parcel... 3/25/2015
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 11
OFFICE OF CIVIL LITIGATION DIVISION
· DANlEL F. BAMBERG 1200 THIRD AVENUE, SUlTE 1100
ASSISTANT CITY ATTORNEY THE CITY ATTORNEY SAN DIEGO, CALIFORNIA 92101-4100
JOE CORDILEONE
LEAD DEPUTY CITY ATTORNEY CITY OF SAN DIEGO TELEPHONE (619) 533-5800
FAX (619) 533-5856
JAN I. GOLDSMITH
CITY ATTORNEY
May29, 2015
Sent via Personal delivery (to San Diego office), U.S. mail, facsimile, and email
Re: Multiple cases against the City ofSan Diego and related entities
Mr. Briggs:
It was recently brought to our attention that many declarations you filed with the court do
not contain your signature. These declarations, of course, contain the following language: "I
declare under penalty of perjury that the foregoing is true and correct."
In fact, although these declarations state your name as the declarant and purport to
contain your signature, it is apparent that you did not sign the declarations.
Our office spot checked 64 declarations retrieved from various court files involving the
City and found 30 that do not appear to be your signature. Included among them is the
verification to the First Amended Complaint falsely accusing the City Attorney of illegal
conduct. Our spot check covered several years but was limited to declarations. However, there
are many other documents in the court's files purportedly signed by you that also appear to be
signed by someone other than yourself.
Our judicial system is founded upon the fundamental principle that one's solemn oath
binds the declarant to the truth of his allegation. It is not a mere fonnality. Yet it appears that,
even though you are an Officer of the Court, you engage in a business practice of allowing
declarations to be filed, in your name, without bearing your true signature. Although you get the
legal benefit of filing a declaration purportedly under penalty of perjury (thereby establishing
evidence and requiring opposing pmiies to submit their own declarations in opposition), the
absence of your genuine signature means these documents are not truly submitted to the Comi
"under penalty of petjury."
1031353
• Cory J. Briggs, Esq. -2- May29, 2015
This letter is not intended to threaten legal action or solicit a settlement. Nor is it a waiver
of any claim or right. Whether legal action is taken and whether settlements are appropriate are
separate decisions. One purpose is to give you an oppmiunity to respond. The other purpose is to
see whether we can work out a process to correct the official court records with the proper
signatures or expunge those documents where you cannot attest to the facts alleged.
Notwithstanding your extremely antagonistic attitude toward this office, our office
believes that the best approach to a prompt resolution is to communicate with you about what we
have discovered and work together to correct the court records.
I ask that you provide your written response no later than the close of business, Tuesday,
June 2, 2015, and advise whether you are willing to try and work out a process to correct the
official court records. Communication direct to me by email or facsimile is satisfactory.
Sincerely,
JAN!. GOLD&;M~
Joe Cordileone
Lead Deputy City Attorney
JC:ctm
c: Facsimile (909) 949-7121
Facsimile (619) 515-6410
Email cory@briggslawcorp.com
1 JAN I. GOLDSMITH, City Attorney
DANIEL F. BAMBERG, Assistant City Attorney
2 JOE CORDILEONE, Deputy City Attorney
California State Bar No. 73606
3 Office of the City Attorney, Civil Division
1200 Third Avenue, Suite 1100
4 San Diego, California 92101
(619) 533-5800; Fax (619) 533-5856
5
Attorneys for CITY OF SAN DIEGO
6
DECLARATION OF Re: Multiple cases against the
7 SERVICE City of San Diego and related entities
8
9 I, Chela Madere, declare that I am, and was at the time of service of the papers herein referred
to, over the age of eighteen years and not a party to the action; and I am employed in the County of
10 San Diego, California, in which county the within-mentioned service occurred. My business address is
1200 Third Avenue, Suite 1100, San Diego, California, 92101.
11
I served the following document(s):
12
LETTER TO CORY BRIGGS DATED MAY 29, 2015
13
I further declare that I am readily familiar with the business' practice for collection and
14 processing of correspondence for mailing with the United States Postal Service; and that the
correspondence shall be deposited with the United States Postal Service this same day in the ordinary
15 course of business. I served the above document(s) in this action in the manner indicated
PROOF OF SERVICE
1 the "LexisNexis File & Serve Transaction Receipt" page will be maintained with the original
document(s) in our office.
2
l')(l (BY FAX) On 1\lfn.!lP/2015, I transmitted the above-described document by facsimile machine
3 to the listed fa:~~Je~s. The transmission miginated from facsimile phone number (619) 533-
5856 and was reported as complete and without error. The facsimile machine properly issued a
4 transmission report, a copy of which is attached hereto. (Cal. Civ. Proc. Code§ 1013(e); Cal.
Rules of Ct., Rule 2008.)
5
[ ] (BY OVERNIGHT DELIVERY) I caused the envelope(s) to be delivered ovemight via an
6 ovemight delivery service in lieu of delivery by mail to the addressee(s). (Cal. Civ. Proc.
Code§ 1013.)
7
8 [X ] (BY PERSONAL SERVICE) By delivering copies of the above-referenced
documents to Diversified Legal to effect personal service on the offices of the
9 addressees as indicated above.
10
nL
I declare under penalty of p~ry under the laws of t.he State. of Califomia that the foregoing is
11
12 true and correct. Executed on Maw--f.> 2015, at San~ ~
13 Chela Madere Z
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 12
1 Daniel M. Gilleon (SBN 195200) ELECTROtUCAll Y FILED
James C. Mitchell (SBN 87151) Superior Court of California.
2 Samuel A. Clemens (SBN 285919) County of San Diego
The Gilleon Law Firm 0110312011 at 02:54:35 PM
3 1320 Columbia Street, Suite 200
Cleric of the Superior Court
San Diego, CA 9210 1 By Patrick Gonzaga ,Deputy Cleric
4 Tel: 619.702.8623/Fax: 619.702.6337
dan@gi Ileon.com
5
6 Attorneys for PlaintiffMarlea Dell'Anno
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
(Central Division)
9
10
13 vs. 1. Retaliation
[Labor Code § 1102.5]; and
14
JAN GOLDSMITH, CITY OF SAN 2. Penalties- Labor Code § 2699
15 DIEGO, a municipal corporation, and (Private Attorney General Act)
Does I to 20,
16
Defendants.
17
19 1. Dell'Anno is an adult resident of San Diego County, California. At all material times,
20 she was a licensed California attorney in good standing with the State Bar of California, and was the
21 Assistant City Attorney for the City of San Diego, an appointed (non-elected) position. At all
22 material times, in addition to other laws, Dell'Anno was bound by ethical rules, such as California
23 Rules of Professional Conduct, Rule 5-110, not to file criminal charges against someone unless
24 probable cause existed to obtain a unanimous (12-0) verdict, at the highest level of proof, "beyond
25 a reasonable doubt."
27 California. At all material times, he was a licensed California attorney in good standing with the
28 State Bar of California, and as the City Attorney of San Diego, Goldsmith was Dell'Anno's only
2 unless he reasonably believed his office could prove the case beyond a reasonable doubt. However,
3 at all material times, Goldsmith was also a politician, and Goldsmith prioritized his political
4 ambitions and interests over his ethical obligations. In furtherance ofhis political advancement, as
5 will be explained in this complaint, Goldsmith intentionally caused harm to Dell'Anno. Under
8 3. Defendant City of San Diego ("the City") is a municipal corporation in San Diego
9 County, California. At all material times, the City was Dell'Anno's employer, and Goldsmith was
10 a managing agent for the City acting in the course and scope of his capacity as an elected official.
11 4. The true names and capacities, whether individual or otherwise, of defendants Does
12 I to 20 are unknown to Dell' Anno who, therefore, sues them by such fictitious names under CCP
13 §474. She is informed and believes that each of the defendants is responsible in some manner for
15 5. At all material times, all ofthe defendants were agents and employees of the other
16 defendants and when doing the acts alleged in this complaint, they acted within the course and scope
19 performance while maintaining the highest of ethical standards. She began her career as a prosecutor
20 in 2005 as a Deputy District Attorney with the Fresno County District Attorney's Office where she
21 quickly developed a reputation among her peers on both sides of the bar and the judiciary for being
22 a tenacious and ethical trial attorney. During her tenure with the office, Dell'Anno was selected as
23 the District Attorney coordinator for the countywide, multi-agency S.A.F.E. Team to address
24 management of the county's sex offender population and seek strategies to enhance community
25 safety. She was also peer-elected as the Vice President of the Fresno County Deputy District
26 Attorney's Association.
27 7. In September 2009, Dell'Anno relocated to San Diego and joined the San Diego City
28 Attorney's Office as a Deputy City Attorney. Based upon her exemplary performance and strong
3 Unit. By promoting Dell'Anno to that position, Goldsmith recognized she was best suited to restore
4 the unit to its previous success. Dell'Anno succeded. She quickly and effectively lead the
5 reorganization of the unit by implementing revised strategies that dramatically increased the number
6 of domestic violence, elder abuse, child abuse and sexual assault cases prosecuted while maintaining
7 an overall conviction rate of 94 percent, an increase of nearly 20 percent from when she assumed
8 that leadership role. Dell'Anno also worked closely with justice partners to revitalize and enhance
9 the office's relationships with the Family Justice Center and other community stakeholders.
II Goldsmith promoted her to the position of Assistant City Attorney, the position she held from 2012
12 until her wrongful termination on November 20, 2015. In that role, Dell'Anno was charged with
13 overseeing the review of nearly 20,000 criminal cases per year, leading a team of approximately 60
14 prosecutors and I 00 investigators, paralegals, clerks and support staff. Dell'Anno's restructuring of
15 the Criminal Division resulted in increased efficiency, improved case outcomes and integrated
16 community-based prosecution practices. Throughout her tenure in the office, Dell'Anno received
18 9. In her role as Assistant City Attorney, Dell'Anno expanded and obtained highly-
19 competitive federal funding for the nationally recognized San Diego Community Court Program.
20 The program focused on using risk assessment tools and procedural justice concepts to address
22 performance, she was an invited participant in the national White House LEAD Conference focused
23 on implementing strategic alternatives to inequalities in the criminal justice system. Dell'Anno was
24 also charged with regularly making presentations to the City Council and addressing the media as
25 required.
27 recognized that Goldsmith's primary interest was his personal, political advancement, which she
28 quickly realized was on a collision course with her own professional and ethical obligations as a
2 relations official, a City employee, Gerry Braun, who was inextricably involved in Goldsmith's day-
3 to-day decision-making, strategy and tactics as the City Attorney of San Diego.
4 11. Just as quickly, Goldsmith (and Mr. Braun) learned that Dell'Anno would not bend
5 her ethics to accommodate his political ambitions. For example, with other incidents to be proven
6 at trial, in 2013, Tanya Tomlinson, a member of Goldsmith's management team, asked Dell'Anno
7 to attend a public City Council budget meeting to address any questions the Council might have had
8 about the budget for the Criminal Division. Ultimately, the Council directed their questions to
9 Dell'Anno who, consistent with her previous positions, truthfully answered each oftheir questions,
I0 even though her answers did not align with Goldsmith's agenda. Goldsmith was watching the live
ll feed of the meeting and heard and saw Dell'Anno's responses to the Council's questions. Goldsmith
12 became irate and denigrated her in front of the City Attorney's entire management team. When
13 Goldsmith intimated that her conduct could jeopardize her position with the office, Dell'Anno told
14 Goldsmith that if telling the truth to the City Council, an elected body, were an issue, he might as
15 well fire her because she would continue to tell the truth. Thereafter, and in retaliation for her
16 conduct before the City Council, Goldsmith increasingly limited her contact with the City Council
18 12. Dell'Anno sought the counsel ofMr. Braun, also known as "the Jan whisperer," about
19 how she could get back in Goldsmith's good graces so that she could participate in meetings that
20 directly affected her and the operation of her division, Mr. Braun told her Goldsmith "wants you to
21 get your hands dirty. If you would just get your hands dirty, they would let you in the room."
22 Dell'Anno insisted that her integrity was not negotiable, but as time would tell, her refusal to "get
23 her hands dirty" for Goldsmith would lead to her humiliating and wrongful discharge from the City
24 Attorney's Office.
25 13. The beginning of the end was an incident in late 2014, when Goldsmith saw a
26 political advantage in filing criminal charges against a person, i.e., to help him promote an image
27 that he supported the San Diego Police Department. However, Dell'Anno reviewed the case- as
28 any ethical prosecutor was required to- and thought the case lacked probable cause, and as was
2 time frame, Dell'Anno continued to push back against Goldsmith's attempted use of the criminal
3 justice system to advance his political ambitions. There were several other cases where this
4 occurred. One was when Dell'Anno refused, as Rule 5-110 required her to do, Goldsmith's demand
5 to file criminal charges against a political rival, Cory Briggs, because she believed there was an
6 absence of any evidence Briggs had committed a crime. Dell'Anno also refused Goldsmith's demand
7 that she use a civil case subpoena to obtain evidence for potential criminal charges against a local
9 14. The final straw for Goldsmith came in October 2015, when, faced with a political
I0 problem with the Deputy City Attorneys Association of San Diego, Goldsmith ordered Dell'Anno
11 to illegally remove a negative evaluation that had been placed in the file of a Deputy City Attorney.
12 Dell'Anno refused, and documented her reasons in a memorandum dated October 6, 2015, a
13 (redacted) copy ofwhich is attached as Exhibit 1. Dell'Anno's stated reason for refusing Goldsmith's
14 order was unambiguous: "I cannot retract the negative evaluation .... I would be acting in violation
16 15. Goldsmith had had his fill ofDell'Anno's ethics and insistence on following the law.
17 Within a few weeks, on October 27,2015, he retaliated against Dell'Anno with an unwanted and
18 punitive transfer from her position in charge of the criminal division to one in charge of"homeless
19 issues," with nobody reporting to her. This was a demotion. She was removed from her large corner
20 office and ordered to a smaller, filthy office with a sign on the door stating, "Do Not Enter." In
26 (Ex. 2.)
27 16. But Goldsmith did not stop there. He knew Dell' Anno's refusing to violate Rule 5-
28 110 by filing the unfounded criminal cases described in paragraph 13 and the October 6, 2015
2 hit first by targeting Dell'Anno's reputation and then terminating her, such that, if she sued, he could
4 I 7. To accomplish this, Goldsmith exploited a known issue in the City Attorney's office,
5 which was that some Domestic Violence ("DV") cases previously rejected by attorneys in the office
6 had not been filed within the statute of limitations. Goldsmith decided to use this as a pretext to
7 · retaliate against Dell'Anno and wrongfully terminate her employment. On November I 3, 2015, he
8 and Paul Cooper, the Executive Assistant City Attorney, conducted a "fact finding" interview of
9 Dell' Anno about these DV cases, which was recorded by a court reporter. The same day, Goldsmith
12 with the City in a letter full of false hyperbole. He simultaneously blamed Dell'Anno for failing to
13 supervise an attorney, which resulted in what he implied were meritorious DV cases being time-
!4 barred because they were not filed within the statute of limitations while at the same time he
15 attempted to exculpate himself and other supervisors from any responsibility. (Ex. 3). Goldsmith
16 wrote, "[y]ou did not inform me of this matter, the cases, the circumstances or the problems with the
17 particular attorney." Goldsmith knew full well that Dell'Anno had followed protocol by informing
18 members of his management team with whom he regularly met. He also knew that no DV case
20 19. In his pretext letter, Goldsmith also chided Dell'Anno for giving the "particular
21 attorney," who Goldsmith had fired too as a sacrificial Iamb, a recommendation for a job with the
22 District Attorney's office. This angered Goldsmith because he knew the attorney Dell'Anno had
23 recommended (and he had fired) had been an excellent, hard-working Deputy City Attorney.
24 Goldsmith knew this other attorney had not done anything worthy of termination (like missing
25 deadlines on the DV cases). This was confirmed when the District Attorney's office conducted an
26 independent investigation of the allegations made againstthe other attorney by Goldsmith, and hired
27 her anyway.
2 show Deii'Anno's termination was justified, Goldsmith falsely accused Deii'Anno of"unprofessional
3 behavior as ACA toward Deputy City Attorneys and staff." Quite clearly, Goldsmith was
4 referencing the allegations made by the Deputy City Attorney whose negative evaluation Goldsmith
6 21. Deii'Anno complied with the Tort Claims Act (Govenment Code§ 810 et seq.) and
7 filed a claim against the City on May 19,2016. The City rejected the claim in a letter dated July 6,
9
FIRST CAUSE OF ACTION
10 (Retaliation, Violation Of Labor Code§ 1102.5, Against All Defendants)
23 24. As alleged in paragraphs I 3 and 14, Dell' Anno engaged in protected activity under
24 Labor Code § 11 02.5(b )(c), the City and Goldsmith retaliated against Dell' Anno as alleged in
26 25. As a legal result of defendants' retaliation against Deii'Anno, she has suffered, and
28 26. Goldsmith and Does 1 to 20 acted with malice, oppression and fraud, in conscious
3
SECOND CAUSE OF ACTION
4 (Penalties- Labor Code§ 2699, Against All Defendants)
6 28. Dell'Anno is an aggrieved employee as defined by Labor Code§ 2699(a). She brings
7 this cause of action on behalf of herself and other current or former employees of the City based
9 29. Pursuant to Labor Code §§ 2699 and II 02.5(f), Dell'Anno is entitled to be awarded
10 25% of all such penalties, plus interest and attorney's fees and costs; 75% of all penalties should be
12 30. Dell'Anno did not have time to comply with the new administrative requirements for
19 b. Costs of suit;
24
25
26
27
Dated: January 3, 2017
~"\ Th;<JC
(J(
Daniel M. Gill eon, Attorneys----......___
for Plaintiff Marlea Dell'Anno
28
Dear Jan,
I understand that you would like an immediate decision regarding whether or not I would be
willing to have a discussion with both . r thank them for
their work in the Criminal Division, and retract their negat1ve evamations. 1 have given
considerable thought 1111d reflection to your request.
Following our meeting yesterday, I called and asked her if she could send me a
copy of , EEOC complaint because I had never actually seen the complaint. •
then forwru·ded me a copy of the complaint and some attached documentation.
One item was a letter dated July 13, 2015, which stated it was a notice of the :filing of a
discrimination complaint. I read that letter for the first time last night. The letter is written by
Sarah Wong from the State of California Depmiment of Fah Employment & Housing. One
paragraph immediately caught my attention:
California Government Code section 12946 requires that all employment records (or
union membership and refenal records) be retained for a minimum of two (2) years.
When a discrimination complaint has been served, the record~ must be kept until the
DFEH closes its inquiry and until anj' resulting law suit or appeal has been tenninated.
In sum, this paragraph provides the answer to your question. I cannot retract the negative
evaluation tor I would be acting in violation of the Govenm1ent Code to do so.
As such. 1 will neither remove nor modify the evaluation that was prepared for and reviewed
with ·. The evaluation and the supplemental remain a factuarrepresentaiion of the
substandard work that she performed in the last rating period.
As for I remain troubled by the fact that no action has been taken, even
thongh there is speciiic and credible infonnation that us )larassed a clerk in the
Appellate Unit. During an interview with confirmed that
,l regularly harassed her, called her a "traitor" for helping toe acting chief, and
generally menaced and bullied he1·. To my !mow!edge, and despite my repeated requests, no fact
finding was ever commenced. Rather. a division-wide review of the Criminal Division staff and
deputies was commenced. 1 was tasked with performing that review. Instead of a
division-wide review, it is my understanding that the focus was on the Appellate Unit only. I
have also heen told that during thi~ •1rocess, it was confirmed that .ns had
repeatedly harassed - yet no fact finding or disciplinru-y measures have been
0 ,
EXillBITl
-2-
room and grabbing her files in an effort to prevent her from leaving. This allegation pales in
comparison to the description of harassment that provided, which has been
confumed and conoborated by other sources.
There is one fmal comment that I wmrt to niake regarding evaluations. The (waluation process is
a time to reflect on the past performance of the employee and provide positive feedback and
pragmatic tools for improving future performance. 1s are
not the first two deputies to receive a neg~tive evaluation during my tenure as Assistant City
Attomey.
In 2012, l signed off on an evaluation for .. . • . hat said slle did not meet
performance standards during the period from January to June. I outlined that she had fallen
behind in her issuing and needed to improve her time management skills. I personally met with
to review the evaluation, provide mentorship and encouragement, and discuss strategies
to improve her perfmmance as a deputy city attomey in light of her transfer from the Domestic
Violence Unit to the Neighborhood Prosecution Unit. In the evaluation, l predicted as follows:
"If is able to address these issues in her new assignment, I am confident she will see a
positive change in her professional interactions and outcomes."
~ did apply the lessons she had !eamed and l'e-conunitted herself to the hard work and
protoosional standards that we demand in the Crhninal Division. work product
improved, her confidence grew, and she developed into one of the most trusted deputies in the
divi;,ion. is now a senior deputy .in the General Trial Unit and works hard to see that cases
are handled professionally and young deputes are trained properly.
The point of the story is this: I have never uttered a negative word towards
· fo the contrary, I have told them what is expected of them and always tied
to provide any resources necessary for them to succeed. To. tins day, I remain committed to
helping their professional development and teaching them how to be better prosecutors. J1wt as I
did with , I will work with any deputy in the division to help them succeed, but the deputy
must reciprocate the effort.
I do not think an EEOC complaint that lacks any merit, nor the negative energy summoned by
two disgruntled employees, can sidetrack the positive momentum of the Cl'inrinal Division. We
are moving forward with Community Courts. We continue to have high conviction rates and
outstanding trial results. We will be a nationwide model for successful diversion programs tl1at
reduce harm to the community we serve. These results flow fmm my leadership and
implementation of yout vision. I intend to continue this ltajectory despite challenges with
budgets, ballot measures, and bureaucracies. I certainly will not let the great work and dedication
oft11e 190 deputies, secretaries, paralegals, investigators, and support staff under my supervision
be disrupted by the unfounded complaints of two deputies.
I appreciate your stated recognition of my leadership abilities and positive changes that I have
implemented in the Criminal Division. I run grateful that we had a11 OJlportunity to disc!JSS your
thoughts on my possible future cmeer opportunities as a deputy city attorney, judge, ot even
·3·
I would welcome an opportunity to discuss this matter with you further. I believe there are oilrer
options to resolve these issues and I am confident that if there is mutual cooperation, trust, effort
and on-going communication among all of the parties, we will move forward in a manner that is
in the best interests of our employees and the office as a whole. Also if your schedule permits, I
would like very much to schedule bi-weekly meetings with you to update you on the status of the
Criminal Division and have the bene.fit of your experience and counsel when issues arise Ol' even
just to discuss implementation strategy as we move forward with Community Coutt and other
exciting projects that may be on the horizon.
~inc·
~arlea
From: mdellanno@yahoo.com
Date: October27, 2015 at 11:39:17 PM PDT
To: Marlea Deii'Anno <mdellanno@yahoo.com>
Jan,
I am in receipt of the "reassignment" memo you directed Tanya to deliver to me today. This
reassignment is clearly retaliatory in nature and a demotion in both the scope of my duties
and my status in the office, which I advised both Gina and Tanya upon receipt. Your adverse
action today is the most professionally and personally devastating event of my entire career.
I cannot express how unbelievable your actions today are in light of the work I do and the
measurable success I have brought to your Criminal Division. Your decision is clearly the
result of my continued and documented refusal to engage in an on-going pattern of illegal,
unethical and fraudulent conduct by you and other members of your administration. Your
actions have had a direct and profound impact on my health and as a result, I have been
placed on leave by my doctor until November 9, 2015. I will forward the documentation from
my doctor in a separate email to follow.
Marlea
EXHIBIT2
-------------· · - -
JAN L GoLDSMITH
SAN DIEGO CITY A/TORNEY
Dear Mrn:lea:
This letter is to infonn you that your at-will appointment as Assistant City Attomey
"ACA" in the Office of the City Attorney ends on November 20,2015.
Despite knowing tills iuforn1ation, you failed to take meaningful action. The lack of
meaningful action was illustrated by the fact that just last week additional files that had been
assigned to that same attorney were found in her current office, many of which had the same
statute of limitations problem. f eventually learned of these cases only after you were reassigned
from your position as head of the Criminal Division.
In addition, these circumstances and other information lead me to conclude that you
failed to exercise proper oversight over the Domestic Violence Unit as its Chief which helped
contribute to those mishandled cases. In the course of my review of this matter, I also learned
that you engaged in what I consider to be unprofessional behavior as ACA toward Deputy City
Attorneys rn1d staff.
Although I recognize your other positive contributions to this office, f cannot allow you
to remain as my ACA in light of what I learned as I have lost confidence in yon to represent this
office and my management team.
-At your earliest opportunity, please inake mrangements with Tanya Tomlinson, Deputy
Director of Administrative Services, to retmn any items or equipment belonging to the City of
Sm1 Diego. At that time, we will also make atTangements for you to pick up your personal items
that are in your office.
Enclosed with this letter is a packet ofmatarials that will assist you in making decisions
related to your benefits. You will receive your final paycheck on December 18, 2015.
Thank you for your service to the Office of the City Attomey. l wish you success in your
future endeavors.
JIG:cs
Present claim by personal delivery or mail to the City of San Diego, Risk Management Dept.,
1200 Third Ave., Suite 1000, San Diego, CA 92101. .
Received via:
TIMESTAMP
0 U.S. Mail
0 ¥Jter-Office Mail . b))\
·&:Vover-the-Counter \IJ
FILE No. _ _ _ __
TO THE HONORABLE MAYOR AND CITY COUNCIL, the Oty of San Diego; California
r, Marlea Deii'Anno hereby make a claim against the City of San Diego and make the
following statements in support of the claim:
1. CLAIMANT INFORMATION
a. Date of the oa:urrence or transaction which gave rise to the claim: On or about 11/20115
b. Time of the occurrence or transaction which gave rise to the claim: On or about 4:0o pm
c. Place of occurrence or transaction (please be specific): 1200 Third Ave. san Diego, CA92101
RM~9 (Rev. 12~ 10) 7hls information Is available in alternative formats upon request
EXHIBIT4
d. Other circumstances of the occurrence or transaction giving rise to the claim: _ __
I was terminated after advising City Attorney Jan Goldsmith in writing that Jintended to file a claim for workplace retaliation
as a result of my refusal to engage In unethical and lllegal conduct at his direction. I wa:;. subJected to harassment,
unlawful retaliation, Improper disclosure of<:Onfidential information and interference with prospective economic advantage.
3. _DESCRIPTION OF CLAIM
b. The name or names of the public employee or employees causing the claimant's injury,
damage, or !0551 if knOwn1 are: Jan Goldsmith, Carmen S-andoval, Mlke Glorgino. Paul Cooper
d. Please provide any additional infonnation that might be helpful in considering your
claim, including names of witnesses, treating physicians, and hospitals: ""'=ffi""""'""'
are not limited to Tanya Tomlinson, Gina Coburn, Veda Johnson, Gerry Braun, Mark Skeels and Jamie Ledezma,
e. Please attach and/or provide any additional infonnation that may be helpful in considering
your claim including proof of damages such as invoices, receipts, and estimates.
WARNING: It is a criminal offense to file a false claim (cal. Penal Code§ 72).
I have read the matters and statements made in the above claim and I know the same to be true of my
own knowledge, except as to those matters stated on information or belief and as to such matters, I
believe the same to be true. I certify und enalty ~ that the for - g is true and correct.
Dated: 05/19116
1
Umited c!Vll cases are discussed in California Code of Civil Procedure§ 85.
RM~9 (Rev. 12-10) This Information Is available In alternative formats upon request
THE Crrv oF SAN DIEGo
july 6, 2016
Marlea Deii'Anno
11645 Caminito Magnifica
San Diego, CA 92131
Your claim against rhe Cicy of San Diego was referred to this office for investigation and a
determination of the City's iegai liability.
Please be advised that. pursuant to Ca'.ifornia Government Code section 912.4, your cla',m is
deemed to be denied by operation of law.
Subject to certain exceptions, you have only 6 months from the date that this notice
was personally delivered to you or deposited in the mall to file a court action on this
claim. See Governmer.r Code secf1on 945.6.
You may seek the advice of an attorney of your choice, and at your own expense, in
connection with this matter. If you desire to consult an attorney, you should do so
immediately.
Sincerely,
Kris Griffin
Supervising Claims Representative
Risk Management
1200 Third Avenue, Suite 1000•San Diego. CA 92101-4107
Tel (619) 236-6670 Fax (619) 236-6106
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 13
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO
CENTRAL
MINUTE ORDER
DATE: 01/29/2016 TIME: 03:35:00 PM DEPT: C-73
JUDICIAL OFFICER PRESIDING: Joel R. Wohlfeil
CLERK: Juanita Cerda
REPORTERIERM: Not Reported
BAILIFF/COURT ATTENDANT:
APPEARANCES
5 JAN 2 7 2016
6
7
8
9 SUPERIOR COURT OF TilE STATE OF CALIFORNIA
10 FOR THE COU TY OF SAN DIEGO
11 SAN DIEGANS FOR OPEN Case No. 37-2012-00088065-CU-MC-CTL
GOVERNMENT,
12 STATEMENT Of DECISION
Plaintiff,
13
v.
14
CITY OF SAN DIEGO; and ALL PERSONS
15
TNTERESTED IN THE MATTER OF TIIE
RENEWAL OF THE SAN DIEGO
16
TOURISM MARKETING DISTRICT, THE
17 LEVYING OF ASSESSMENTS UPON THE
ASSESSED BUSINESSES FOR A PERIOD
18 OF THIRTY-NINE AND ONE-IIALF
YEARS, AND TilE PRESCRIBTNG OF A
19 METHOD FOR COLLECTION OF
ASSESSMENTS,
20
Defendants.
21
22
23 This case came on regular) y for trial on November 9 - 11, 16 and I 7, 2015, and January 2 7,
24 20 16, before the Honorable Joel R. Wohlfeil, Judge presiding. Plaintiff SAN DIEGANS FOR
25 OPEN GOVERNMENT ("Plaintiff'') was represented by Cory J. Briggs Esq. and Kelly E.
26 Mourning Esq. of Briggs Law Corporation; Defendant CITY OF SAN DIEGO ("City") was
27 represented by Carmen!\. Brock, Deputy City Attorney; and Defendant SAN DIEGO TOURISM
•
1 Esq., Jennifer L. Pancake Esq. and Ryan T. Dunn Esq. of Colantuono, Highsmith & Whatley, PC
2 ("City" and "TMD" are collectively referred to as "Defendants"). The Court, after hearing
3 testimony of witnesses (Pedro Quiroz, Dell Cunamay, Richard Lawrence, Samuel Rubin, Karen
4 Langwasser, Frank Hicks, Linda Perine through her depositions taken on November 24, 2014 and
5 July 13, 2015, Joanne Speers, Tricia Mendenhall and Theresa Quiroz), receiving exhibits into
6 evidence(Exhibits"19(page 1792only), 101-103,111,112,114-116,118-120,122,128,
7 130, 131, 134, 143, 145, 147, 149, 157, 159, 160, 162, 167-176, 178-182, 185, 192-194,201,
8 205, 206, 209-211, 213-215,219, 220,241 (page 4 only), 245 (pages 3 and 4 redacted), 273,
9 274, 276, 277, 280 and 283"), taking judicial notice of items (including but not limited to Exhibits
10 "107-110, 138,149,156,158, 162,224,227,228,230,275,279and281")receivingpre-trial,
11 trial and post-trial briefs (ROA # 768, 772 -774), hearing arguments of counsel, and good cause
12 appearing therefore, hereby issues this Statement of Decision ("SOD").
13 Introduction
14 The first phase of this trial is about the transparency, credibility and, ultimately, the
15 capacity of Plaintiff to challenge the propriety of" ... Resolution R-307843, pursuant to which
16 CITY renewed the San Diego Tourism Marketing District, levied assessments upon certain
17 businesses for a term of 39.5 years, and prescribed a method for collecting the assessments
18 (collectively, "TMD Approval")." Plaintiffs Third Amended Complaint ("TAC"), par. 5. Exh.
19 "110."
20 The question of transparency is whether Plaintiff has projected itse1fas openly as
21 Defendants are obligated to govern the tourism marketing district ("TMD"). Exh. "111," pages 6,
22 28.
23 The question of credibility is whether Plaintiff, through Linda Perine- its putative member
24 -and Cory J. Briggs - its attorney, have conducted themselves with the same candor to which
25 Plaintiff argues Defendants must comply. CACI 107. City's trial brief signed November 5, 2015,
26 pages 8, 9; TMD's trial brief signed November 9, 2015, pages 1, 2. (The Court notes that, though
27 counsel provided the Court with a hard copy of these briefs, they do not appear to have been filed
28 and imaged as part of the Court's register of actions ("ROA").) ROA # 768, pages 7- 16.
-2-
STATEMENT OF DECISION
The question of capacity is whether Plaintiff can reconcile its challenge of the TMD
2 Approval with its purpose to promote "social welfare through advocacy for and education
3 regarding responsible and equitable environmental development." Exhs. "112, 130, 131."
5 transparent and credible enough; and 2) a real party in interest I interested person whose challenge
6 of the TMD Approval is consistent with its purpose. CCP 367, 860, 863.
7 Operative Pleadings
8 As reflected in Plaintiff's TAC (ROA # 112), Plaintiff's first (and only remaining) cause of
-3-
STATEMENT OF DECISION
TMD Approval, were not given the
1 opportunity to vote on the TMD Approval,
2 and are not required to pay the assessment
imposed under the TMD Approval.
3
G. Residents of the City of San Diego who
4 book rooms at lodging businesses within
the City without being influenced directly
5
or indirectly by any of the marketing that is
6 made possible as a result of the TMD
Approval (e. g., residents who book rooms
7 for out-of-town family and friends on
holidays or other special occasions because
8 the residents do not have enough room in
9 their own homes to accommodate the
visitors)." (Par. 8.)
10
"Supplementing the allegations in Paragraph 8,
11 Plaintiff alleges that:
12
A. It has at least one member who (i) was
13 identified by the CITY as being eligible to
vote on the TMD tax, was not provided
14 with the ballot materials, and thus was not
given the opportunity to vote on the TMD
IS tax, and (ii) was a member of Plaintiff
before this lawsuit was filed and continues
16
to be a member of Plaintiff.
17
B. It has at least one member who (i) will be
18 liable for the TMD tax but was not given
the opportunity to vote on the TMD tax,
19 and (ii) was a member of Plaintiff before
20 this lawsuit was filed and continues to be a
member of Plaintiff." (Par. 9.)
21
"The levies and collections authorized by
22 the TMD Approval constitute a "tax" within the
meaning of Section 1(e) of Article XIII C of the
23
California Constitution and should have been
24 subjected to a vote by the electorate (i.e.,
registered, natural-person voters in the
25 jurisdiction)." (Par. 14.)
26 "The levies and collections authorized by the TMD
27 Approval do not qualify for any of the exceptions
to the "tax" definition under Section 1(e) of Article
28 XIIIC of the California Constitution, such as
-5-
STATEMENT OF DECISION
assessments and property-related fees imposed in
1 accordance with the provisions of Article XIII D of
2 the California Constitution. Therefore, the levies
and collections authorized by the TMD Approval
3 should have been subjected to a vote by the
electorate (i.e., registered natural-person voters in
4 the City of San Diego)." (Par. 15.)
5
On January 6, 2014, Defendant TMD filed an Answer (ROA # 177) to Plaintiff's TAC, the
6
second affirmative defense (Lack of Standing or Status as Real Party in Interest) states: "The
7
Third Amended Complaint and each and every purported cause of action therein are barred
8
because Plaintiff is not a real party in interest and lacks standing and capacity to sue."
9
On January 8, 2014, Defendant City filed an Answer (ROA # 180) to Plaintiff's TAC, the
10
third affirmative defense (Standing) states: "SDOG does not have a beneficial interest in the
11
outcome of the proceeding at issue and, therefore, lacks standing to pursue the requested relief at
12
all in this action, and more particularly, lacks standing to pursue any relief as against the City."
13
Defendants' Motion to Bifurcate
14
On September 4, 2015, TMD filed a Motion for Bifurcation (ROA # 603) in which TMD
15
sought, in pertinent part:
16
"... 1) An order bifurcating the affirmative
17 defenses pled by Defendants TMD Corp. and the
City for a court trial to occur prior to the Court's
18 determination of Plaintiff and Petitioner San
19 Diegans for Open Government's ("SDOG") three
reverse validation causes of action, with the
20 affirmative defenses being tried first, pursuant to
Code of Civil Procedure sections 597 and 598; 2)
21 An order that the bifurcated trial on TMD's and the
City's affirmative defenses shall proceed with live
22 witnesses and shall occur on the existing trial date
23 ofNovember 6, 2015 ... "
24 ROA#685.
25 On October 9, 2015, the Court, after hearing arguments of counsel, granted TMD and the
28 of Standing will be adjudicated at the first phase of the trial." ROA # 708.
-7-
STATEMENT OF DECISION
I Joint Trial Readiness Conference Report ("TRC Report")
2 In their Joint Trial Readiness Conference Report filed on October 30, 2015 (ROA # 709),
3 the parties identified the disputed legal issues as follows:
4 Whether Plaintiff has standing to pursue this lawsuit?
5 Whether Plaintiff is an interested party or has a member who meets the criteria of indicia of
6 membership that is required by Hunt v. Washington State Apple Advertising Commission (1977)
7 432 u.s. 333?
8 Whether this suit is germane to SDOG's corporate purpose?
9 Whether SDOG properly revived its suspended corporate status?
10 Whether SDOG is the alter ego of Cory Briggs and/or the Briggs Law Corporation which is
11 not an "interested person" and lacks standing?
12 Whether SDOG has sufficiently acted with unclean hands to prevent it from seeking equity
13 in this Court? The Court, on its own motion, deferred the trial of Defendants' "unclean hands"
14 defense to a subsequent phase in this case.
15 Witnesses and Exhibits at Trial
16 Pedro Quiroz, Dell Cunamay, Richard Lawrence, Karen Langwasser, Linda Perine through
17 her depositions taken on November 24,2014 and July 13,2015, Tricia Mendenhall and Theresa
18 Quiroz testified to their recollection of events which took place years ago. The recollection of
19 these witnesses have been influenced by their bias, prejudice or personal relationship with the
20 parties involved in this case. If for no reason other than the passage of time -much less the
21 absence of reliable corroboration-- the Court questions the capacity of the witnesses to accurately
22 recollect and communicate his I her perception of the events. The witnesses have "testified
23 untruthfully about some things but told the truth about others" and, accordingly, the Court has
24 accepted the part it perceives to be true and has ignored the rest. CACI 107, 212. Mr. Quiroz and
25 Perine (Exh. "175") asserted his I her right not to incriminate himself I herself (Evidence Code
26 section 913). The Court, as emphasized at trial, does not "draw any conclusions from (Mr. Quiroz
27 and Perine's) exercise of this right or let it affect any of (its) decisions in this case." CACI 216.
28 Further, one or more of the witnesses exercised his I her right not to disclose what he I she told his
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STATEMENT OF DECISION
I I her attorney in confidence. The Court has not considered the exercise of the attorney client
2 privilege for any reason and this has not influenced its decision in any way. CACI 215.
3 Pedro Quiroz: He is Plaintiffs board chairperson, most knowledgeable person ("PMK")
4 and has been a member of Plaintiffs board since 2010. He did not fill out a membership
5 application. He replaced his spouse- Theresa Quiroz- as a director on Plaintiff's board. In 2013,
7 February 6, 2013. Exh. "145." Plaintiff is a grass roots, informal organization. He does not have a
8 membership card in Plaintiff. Plaintiffs members do not pay dues. Plaintiff does not advertise its
9 membership to the public. Plaintiff does not issue membership cards. Plaintiff does not keep
I0 attendance records of its meetings. He has not donated money to Plaintiff. He has not spent
11 money on Plaintiff. Langwasser is Plaintiff's PMK on the subject of its revenues, expenses and
12 accounting. He has signed settlement agreements on behalf of Plaintiff, after the agreements were
13 approved by Plaintiff's board. Plaintiff does not have any bank accounts. Plaintiff has a verbal
14 agreement with Briggs to use his legal services. Plaintiff does not keep corporate minutes. Briggs
15 keeps Plaintiffs corporate records at his office. Briggs completes Plaintiff's filings for state and
16 federal regulators. Briggs signs Plaintiffs filings for the regulators. Briggs has always been
17 Plaintiffs attorney. He recognized parties Plaintiff has sued in Exh. "150" (which was marked for
I8 identification but not admitted into evidence). Plaintiffs board does not meet without Briggs
19 present. Plaintiff was once known as "All People's Breakfast Organizing Committee"
20 ("APBOC"). Exh. "112." He recognizes Plaintiffs bylaws. Exh. "115." In 2013, he was
21 Plaintiffs secretary, Lawrence was Plaintiffs CEO and Langwasser was Plaintiffs CFO. Exh.
22 "119." Langwasser files Plaintiff's tax returns. Although believable, he was generally unfamiliar
23 with the suspension of Plaintiffs ability to do business in California. He is familiar with
24 Plaintiffs corporate purpose from board meetings. A person can become a member of Plaintiff
25 through a written application or a verbal agreement. Briggs is not a member of Plaintiff. He
26 recognizes Plaintiff's membership application. Exh. "101." He recognizes Perine's membership
27 application. Exh. "I 02." Briggs notifies the board of meetings. He recognizes the open letter from
28 Plaintiff (Exh. "160") which states, in part: "We cannot afford to hire lawyers, and so are very
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STATEMENT OF DECISION
1 happy when someone with Mr. Briggs' abilities and convictions agrees to take the organizations'
2 cases ... When we win a case- and always after persuading a judge we are right-Mr. Briggs is
3 reimbursed for appropriate legal fees ... More importantly, our settlements require actions to
4 protect the environment or correct open-government violations ... " He has not seen annual reports
5 to Plaintiff's members. Briggs created and upgraded Plaintiff's website. He has not operated a
6 lodging business and has not paid a transient occupancy tax ("TOT') (as defined by the TMD
7 Approval). Plaintiffs board approved the revival of Plaintiffs license. He verified Plaintiffs
8 discovery responses. He and Lawrence are Plaintiffs only board members. He is a registered
9 voter in the City. Sariccia Cacciatore is Briggs' spouse. Plaintiff identified Cacciatore as one of
10 Plaintiff's members for "standing purposes." Exh. "245" pages 3 and 4 redacted. Ian Trowbridge
11 and Briggs created Plaintiff's membership application, which was scanned into Briggs' computer.
12 At redistricting meetings in 2010, Perine said she was a member of Plaintiff. Before December
13 2012, Plaintiff's members included a member "who was not only registered to vote in and resided
14 in the City, but also owned or managed real property that was subject to the City's transient
15 occupancy tax and this member was opposed to the then proposed TMD tax." He recognizes
16 Trowbridge's signature in the FTB's exempt determination letter to Plaintiff. Exh. "134" bate
17 stamp page 41. Plaintiff uses Briggs as its contingency attorney. Plaintiff files a lot of lawsuits to
18 redress "illegal activity" by politicians. After Trowbridge's death, Plaintiff discovered some
19 mistakes and hired Briggs to correct the mistakes. Plaintiff revived its suspended license before it
20 filed the current lawsuit in December 2012. On behalf of Plaintiff, he conducted a diligent search
21 for records requested by Defendants and produced the records he could find. Plaintiff has no more
22 records to produce.
23 Dell Cunamay: He does not have Perine's membership application. He does not have
24 Plaintiffs electronic membership application. He inherited Trowbridge's Mac computer. He has
25 been a member of Plaintiff for a few years. He filled out a membership application. He does not
26 have a membership card. He has not attended any of Plaintiffs meetings. He was in a personal
27 relationship with Trowbridge for twenty one years. Exh. "179." He did not sign documents for
28 Trowbridge. He does not know who was in charge of Plaintiff. Trowbridge was able to
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STATEMENT OF DECISION
1 participate in Plaintiffs activities. He did not remove any data from Trowbridge's computer. He
2 did not dispose of Trowbridge's computer. Trowbridge's computer crashed at least once.
3 Trowbridge upgraded his computer but he does not know how frequently. In October 2012,
4 Trowbridge's health began to deteriorate. He recognizes the affidavit- death of trustee. Exh.
5 "182." He does not know Perine. He has not operated a lodging business and has not paid a TOT
6 (as defined by the TMD Approval). He is registered to vote in the City. In 2012, Trowbridge
7 hurt himself in a bicycle accident. Although generally believable, his description of Trowbridge's
8 accident and his injuries was not credible.
9 Richard Lawrence: He is a member of both Plaintiff and Citizens for Equitable
10 Development ("CREED"). Briggs is Plaintiff and CREED's lawyer. Briggs notices Plaintiff's
II board meetings through email. He has not attended a meeting with Langwasser. Plaintiff's
12 purpose is to "tackle legal issues." Briggs advances the costs and his time to file Plaintiff's
13 lawsuits. He takes personal notes at meetings but does not provide them to Plaintiff. He has not
14 read Plaintiff's articles or bylaws and defers to Briggs to maintain Plaintiffs "corporate health."
15 He was not aware that Plaintiff's corporate status was suspended until after Briggs had "fixed it."
16 He did not fill out a membership form, he does not have a membership card, and he does not know
17 how many people are members of Plaintiff. He recognizes Plaintiffs membership form. Exh.
18 "1 01." He has not seen Perine's membership application. Exh. "102." He met Perine at
19 Trowbridge's memorial service. He has not operated a lodging business and has not paid a TOT
20 (as defined by the TMD Approval). Plaintiff maintains its office at Briggs' law offices. He has
21 not complied with his duties as Plaintiffs secretary. He did not produce any documents at trial.
22 Plaintiffs members are not entitled to be a member of Plaintiffs board or compel Plaintiff to
23 pursue a policy, action, corrective measure or remedy.
24 Samuel Rubin: He is TMD's digital forensics expert. His qualifications are adequate.
25 Though challenged by Plaintiff, the evidentiary foundation on which he based his opinions are
26 adequate. In Exh. "181 ", Briggs represented in part: " ... Ian's only computer crashed before this
27 lawsuit was filed. The computer was repaired and returned to him but without his data on the hard
28 drive because the memory had failed and had to be replaced. At that point he was beginning to ail
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STATEMENT OF DECISION
1 and could no longer use the computer." From Defendants' perspective, Briggs' representations are
2 inconsistent with Cunamay's testimony and Rubin's analysis. Inspection ofTrowbridge's
3 computer was necessary for him to investigate the authenticity of the creation or alteration of
4 Plaintiff (Exh. "1 0 I") and Perine's (Exh. "I 02'') membership applications. In his opinion, the
5 embedded metadata and the creation dates of Plaintiff's membership application are different.
6 Exh. "209." In his opinion, the PDF Producer was created using word perfect, which is
7 inconsistent with the creation of Plaintiff's membership application on a Mac computer. In his
8 opinion, Plaintiff's membership application was created on a windows computer. Briggs' law
9 office uses word perfect on a windows computer. Exh. "211." Though not separately admitted into
10 evidence, he filed two declarations (Exhs. "207, 208") in support ofTMD's request to inspect
11 Trowbridge's computer. The Court was generally impressed with Rubin's analysis.
12 Karen Langwasscr: She is, and has been since 2008, Plaintiffs treasurer. She is not a
13 resident of the City. She is, and has been since 1992, a certified public accountant ("CPA") licensed
14 to practice in California. She has not operated a lodging business and has not paid a TOT (as defined
15 by the TMD Approval). She has not attended any of Plaintiffs meetings. She is a board member
16 but has not voted on Plaintiff's board resolutions. She is unfamiliar with Plaintiff's bylaws. Plaintiff
17 does not have any bank accounts. Plaintiff does not have any books and records of Plaintiff's
18 finances. She does not know the criteria for membership in Plaintiff. She was not aware that
19 Plaintiffs ability to do business in California was suspended. She has prepared tax returns for
20 Plaintiff. Exhs. "192- 194." She does not possess any records as Plaintiff's board member. She
21 recognizes her signature on Plaintiffs statement of infonnation filed with the Secretary of State.
22 Exh. "119." She is equivocally familiar with Trowbridge's signature. Exhs. "130, 134." She
23 maintains an office in the same building in Upland as Briggs. Exh. "273." She is Briggs' cousin.
24 She did not produce documents at trial. She volunteers her services to Plaintiff. She has not received
25 any funds for or on behalf of Plaintiff and has not deposited any checks for Plaintiff. Though
26 generally believable, her unfamiliarity with checks, which reflected her name, from the City, was
27 not credible. Exh. "185." She is Plaintiffs agent to accept service of process. She only corresponds
28 with Briggs and Keri Taylor from Briggs' law office. She is Plaintiffs secretary. Exhs. "114, 115."
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STATEMENT OF DECISION
1 She volunteers her services for other non-profit organizations. She authorized Briggs to receive
2 funds from checks which reflected her name. She is the treasurer of CREED. She filed tax returns
3 for Plaintiff after her deposition was taken in November 2014. She recognized the allocation of the
4 $87,176.32 judgment to attorney fees and costs, which may not necessarily constitute receipt of
6 Frank Hicks: He is TMD's forensics document expert. His qualifications are adequate.
7 The purpose of his engagement was to evaluate the genuineness of a series of questioned
9 Trowbridge. Exh. "219." Plaintiff challenged, successfully from the Court's perspective, the
I0 evidentiary foundation on which he based his opinions. The Court has carefully reviewed the
II known signatures attributed to Trowbridge (as reflected on this expert's summary chart) and notes
12 multiple discrepancies among the thirteen known signatures attributed to Trowbridge. The Court
15 2015): At the beginning of trial, the Court deemed Perine to be "unavailable as a witness"
16 (Evidence Code 240) and allowed the parties to present testimony through her depositions taken on
17 November 24,2014 and July 13,2015. CACI 208. The parties presented video-taped excerpts
18 from her depositions and were directed to lodge the excerpts from the transcripts with the clerk.
19 Preliminarily, the Court notes that her attitude, demeanor and the overall quality of her testimony
20 were not trustworthy. She was, at times, vague, evasive and hostile. She is a sophisticated real
21 estate investor with a law school education. Defendants assert that, given her tenure as director of
22 community outreach under former Mayor Filner (Exh. "167"), she had a conflict of interest and
23 her testimony should be discounted if not discarded altogether. Her recollection of the
24 circumstances under which she became a member of Plaintiff is suspicious; however, given the
25 totality of the evidence (including the testimony of Mr. and Ms. Quiroz who the Court perceives to
26 be credible), the Court finds that, at all relevant times, Perine has been a member of Plaintiff. Her
27 testimony that she doesn't "recall receiving ballot materials, and thus I don't believe I was given
28 an opportunity to vote on the TMD approval (Perine November 24,2014 deposition, page 78lines
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STATEMENT OF DECISION
1 19 through 24) is equivocal; however, in view ofTMD acknowledgement that Perine didn't
2 receive the ballot materials (TMD's November 9, 2015 trial brief, page 10 which states: "Ms.
3 Perine admitted she did not update her address after a recent move, and this may explain why she
4 did not receive a ballot for the 2012 renewal of the Assessment."), Perine's non-receipt of the
5 ballot materials is not a controverted issue .. Her testimony, and the documents she produced to
6 corroborate, her lodging business at 811 San Gabriel Place, San Diego, California 92109 ("San
7 Gabriel") are underwhelming. Exhs. "168- 174." However, in mitigation of the Court's
8 reservations about the trustworthiness of Perine's testimony, the Court also notes, with
9 significance, the following undisputed facts: 1) On July 10, 2007, the City issued Perine a
10 transient occupancy registration certificate (Exhs. "19" page 1792 only, and "176"; 2) Defendants'
11 district management plan- Exh. "111" - identifies Perine as a "business owner" who owned or
12 operated a "lodging business" between July 1, 2011 and June 30,2012 ("relevant time period")
13 (Exh. "111" bate stamp pages 3, 50 and 57); and 3) Mendenhall, one of the City's accounting staff,
14 testified that Perine paid the assessment I tax due for the relevant time period (Exh. "103" and
15 referring to Exh. "282"- marked for identification but not admitted into evidence). The City's
16 argument that Perine's payment should be discounted, if not discarded, because she made the
17 payment late is not persuasive. On this point, Perine's testimony resonates with the Court: "I did
18 my best to pay the taxes that I owed, nothing more and nothing less." Perine November 24, 2014
19 deposition, page 155, lines 4-5.
20 Joanne Speers: She is TMD's non-profit management expert. Her qualifications are
21 adequate and the evidentiary foundation on which she based her opinions are adequate; however,
22 the upshot of her opinion testimony- that Plaintiffs purpose is as stated in Plaintiffs articles of
23 incorporation as amended (Exhs. "112, 114") - is of little assistance to the Court. Evidence Code
24 801 states, in pertinent part: "If a witness is testifying as an expert, his testimony in the form of an
25 opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond
26 common experience that the opinion of an expert would assist the trier of fact. .. " Speers' opinion
27 is not, from the Court's perspective, "sufficiently beyond common experience that (her) opinion ...
28 would assist the (Court)." However, the Court credits Speers' testimony on focusing the Court's
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STATEMENT OF DECISION
1 attention on whether Plaintiffs purpose- both as stated in its articles and as represented to the
2 Franchise Tax Board ("FTB") (Exh. "134" bate stamp page 37) is reasonably susceptible to more
3 than one interpretation. The Court finds that "it is." Defendants' argument is that "The interests
4 SDOG seeks to represent here are not germane to its stated purpose ... When it filed this suit,
5 SDOG's stated purpose was 'advocacy for and education regarding equitable environmental
7 'equitable environmental development.' Hunt bars this suit." TMD's trial brief(ROA # 747),
8 page 21. The definition of "germane" is not nearly as limited as urged by Defendants. From the
9 Court's perspective, 'germane" is more broadly interpreted to be related or relevant to the topic
11 including the lawsuit at issue herein, reflect a reasonable interpretation of transparency, openness,
13 Environmental Quality Act and "other land-use laws." Exh. "134" bate stamp page 57. If good
14 enough for the FTB in granting Plaintiffs exemption application under Section 2370ld of the
15 Revenue and Taxation Code, Plaintiffs interpretation, as amplified on by Mr. and Ms. Quiroz, is
16 good enough for the Court. (The Court notes that, at the end of Speers' testimony, Defendants
17 stipulated that one or more of the persons connected to Plaintiff are registered voters in the City,
19 Tricia Mendenhall: She is employed with the City as an accountant in the treasurer's
20 office. She is responsible for TOT remittances. She reviewed the City's records of Perine's
21 payments for the lodging business Perine operated on San Gabriel. She created a timeline which
22 reflects Perine's payment history "for periods subsequent to purchase of property by L. Perine in
23 2005." Exh. "103." She acknowledged that, even if the business owner doesn't collect the
24 assessment (as characterized by Defendants) I tax (as characterized by Plaintiff), the business
25 owner still owes the assessment I tax to the City. The City questions whether Perine conducted an
26 "active" lodging business during the relevant time period but, given Perine's payment history, as
27 reflected in the City's own records, the Court is satisfied that Perine's lodging business was
28
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STATEMENT OF DECISION
I satisfactorily "active." The Court also notes that the City has not refunded to Perine the 2012
4 explained, from the Court's perspective, why the current lawsuit is consistent with Plaintiffs
5 corporate purpose. She knows Perine through a mutual friend and, since 2012, believed Perine to
6 be a member of Plaintiff. Before June 2012, she stopped being a member of Plaintiff's board. She
7 serves on the City's Planning Commission and has not disclosed that she is a member of Plaintiff.
8 Whether Plaintiff has standing to pursue this lawsuit? I Whether Plaintiff is an interested
9 party or has a member who meets the criteria of indicia of membership that is regnired by
11 A. Burden of Proof
12 Preliminarily, the Court addresses the threshold issue of who bears the burden of proof to
14 This is, understandably, a weighty issue; however, it has become, from the Court's
15 perspective, a more challenging issue because of the manner in which the Court was persuaded to
16 bifurcate the trial. Ultimately, the Court granted TMD's Motion for Bifurcation (ROA # 603) with
17 Defendants' "affirmative defenses being tried first, pursuant to Code of Civil Procedure sections
18 597 and 598 ... prior to the Court's determination of Plaintiffs reverse validation cause of action
19 "
20 As TMD argued, at page 3:
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STATEMENT OF DECISION
affirmative defense that the action is time-barred or
1 alleges another affirmative defense that is
2 potentially dispositive and that is one 'not
involving the merits of the plaintiff's cause of
3 action[,]"' [citations omitted].) Similar to the
reasons for bifurcation pursuant to Code of Civil
4 Procedure section 598, the purpose of bifurcation
pursuant to section 597 "is avoidance of waste of
5
time and money caused by the trial of issues which
6 may be rendered moot[.]" (Bedolla v. Logan &
Frazer (1975) 52 Cal.App.3d 118, 135.) If a trial
7 on a defendant's affirmative defense disposes of
the case, a court should enter judgment for the
8 defendant and dispense with the trial on the merits.
9 (Code Civ. Proc., § 597. )"
10 Evidence Code Section 500 states: "Except as otherwise provided by law, a party has the
11 burden of proof as to each fact the existence or nonexistence of which is essential to the claim for
12 relief or defense that he is asserting."
13 " ... ordinarily the burden of proving an issue raised by an affirmative defense rests upon the
14 defendant ... " Donovan v. Security-First Nat. Bank of Los Angeles (1945) 67 Cal. App. 2nd 845,
15 853.
16 However, as set forth in Heesy v. Vaughn (1948) 31 Cal. 2nd 701, 708, 709:
17
"The rule is that the burden of proof lies upon the
18 party presenting 'the affirmative of the issue,' the
one 'who would be defeated if no evidence were
19 given on either side.' . . . Plaintiff's third cause of
action alleged defendants' violation of the law by
20
reason of their demand upon plaintifffor an
21 amount in excess of the OPA price listing for the
automobile in question, and defendants' answer
22 thereto was in the form of a general denial. Such
pleadings put directly in issue the matter of
23 defendants' violation of the law as charged, and the
burden was on plaintiff to produce the evidence
24
material to the proof of this essential element of
25 her cause of action. Plaintiff proved the OPA
ceiling price for a cash sale of the automobile
26 mobile and the price stipulated under her
conditional sales contract with defendants, but she
27 did not establish that the financing charges which
28 made the latter price higher that the former price
were more 'than they customarily (had) been.' In
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STATEMENT OF DECISION
the absence of proof on this latter point, plaintiff
I did not make out a violation of the law incident to
2 defendants' negotiation of the sale on a time basis.
The fact that defendants offered evidence on the
3 matter of their customary financing charges
over the years did not shift the burden of proof
4 to them on an issue raised by plaintiffs pleading
and simply traversed in defendants' answer."
5
(Emphasis added by the Court.)
6
As made clear by the Court in Valentine v. Provident Mut. Life Ins. Co. of Philadelphia
7
8 (1936) 12 Cal. App. 2"d 616, 618: "It is not contended by either litigant that the burden of proof to
9 establish the affirmative of an issue ever shifts. This is, of course, the law. Asadoorian v.
10 Kludjian 210 Cal. 564, 565,292 P. 644; Scarborough v. Urgo 191 Cal. 341, 346, 347, 216 P. 584;
II Manufacturers' Finance Comoration v. Pacific Wholesale Radio, Inc. 130 Cal.App. 239,244, 19 P.
12 (2d) 1013."
13 The Court agrees with Defendants that Plaintiff bears the burden to prove its standing to
15 B. Associational Standing
16 In its November 5, 2015 trial brief, the City, after referring to CCP 863, 367, argues, at
17 page 6, that " ... SDOG lacks standing unless it can prove at least one of its members on December
18 2012 was subject to the TMD assessment SDOG challenges. See, e.g., Torres v. Citv of Yorba
19 Linda 13 Cal. App. 4th 1035, 1042 (1993) (Torres) [non-residents of Yorba Linda lacked standing
20 to challenge redevelopment project even though they paid sales taxes there]."
21
In its trial brief (ROA # 747), TMD argues, at page 14:
22
"Under Hunt -and the California case law
23 adopting it-an association may only sue as a
representative only if it can prove:
24
25 (1) its members have standing in their own rights;
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STATEMENT OF DECISION
(3) neither the claim asserted nor the relief
requested requires individual members to
2 participate in the suit.
1
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STATEMENT OF DECISION
Citizen suits may be brought without the
1 necessity of showing a legal or special interest in
2 the result where the issue is one of public right and
the object is to procure the enforcement of a public
3 duty. [Citation.] Citizen suits promote the policy
of guaranteeing citizens the opportunity to ensure
4 that governmental bodies do not impair or defeat
public rights. [Citation.]
5
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STATEMENT OF DECISION
sufficient interest as citizens to bring action for
1 injunction).)"
2
See also Gowens v. City of Bakersfield 179 Cal. App. 2d 282 (1960), in which, as argued
3
by Plaintiff (ROA # 645 at page 14) "a hotel owner who did not pay the challenged tax
4
nevertheless challenged the ordinance imposing the tax on transients. I d. at 283. The appellate
5
court found that the hotel owner, despite not paying the tax, had standing to sue because a hotel
6
owner is vitally interested in the validity of the ordinance. Id. at 285. For example, the tax might
7
drive customers away from his business. Id. Under the logic of Gowens, if a hotel owner not
8
liable for the tax had standing to challenge a tax on his guests, lodging-business guests and anyone
9
else who pays for their stays, as well as other people affected by the increased cost of lodging on
10
account of the TMD levy (which is passed on to hotel guests), have standing to challenge the San
11
Diego TMD tax." Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th
12
155, 165-170.
13
1. Perine, as one of Plaintiff's members, would otherwise have standing to sue in her
14
own right.
15
In its trial brief (ROA # 747), TMD argues, at page 17, TMD argues that "SDOG claims
16
only Linda Perine as a "member" who could give it standing here. The preponderance of the
17
evidence will show she was not a member when SDOG filed this. Thus, it had no standing. (See
18
Hunt, supra, 432 U.S. at p. 343.)"
19
Though the Court, as noted above, has reservations about the trustworthiness of Perine's
20
testimony, the Court is persuaded that, given the totality of the evidence (including the testimony
21
of Mr. and Ms. Quiroz who the Court perceives to be credible), Perine has been, at all relevant
22
times, a member of Plaintiff. The Court notes again that, in mitigation of the Court's reservations
23
about the trustworthiness of Perine's testimony, the following undisputed facts: 1) On July 10,
24
2007, the City issued Perine a transient occupancy registration certificate (Exhs. "19" page 1792
25
only, and "176"; 2) Defendants' district management plan- Exh. "Ill"- identifies Perine as a
26
"business owner" who owned or operated a "lodging business" between July 1, 2011 and June 30,
27
2012 ("relevant time period") (Exh. "111" bate stamp pages 3, 50 and 57); and 3) Mendenhall, one
28
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STATEMENT OF DECISION
1 of the City's accounting staff, testified that Perine paid the assessment I tax due for the relevant
2 time period (Exh. "103" and referring to Exh. "282"- marked for identification but not admitted
3 into evidence). The City's argument that Perine's payment should be discounted, if not discarded,
4 because she made the payment late is not persuasive. On this point, Perine's testimony resonates
5 with the Court: "I did my best to pay the taxes that I owed, nothing more and nothing less."
6 Perine November 24,2014 deposition, page 155, lines 4-5.
7 The Court finds that Perine, as one of Plaintiffs members, would otherwise have standing
8 to sue in her own right.
9 2. The interests Plaintiff seeks to protect in this lawsuit are germane to Plaintiffs
10 organization's purpose.
11
In its trial brief(ROA # 747), TMD argues, at pages 21, 22:
12
"The interests SDOG seeks to represent here are
13 not germane to its stated purpose. (See Hunt,
supra, 432 U.S. at p. 343.) Courts look to the
14 purposes stated in a group's organizing documents
- not to self-serving declarations that conflict with
15
those documents. (California Parents for
16 Equalization of Educational Materials v. Noonan
(E. D. Cal. 2009) 600 F.Supp.2d 1088, 1107 [self-
17 serving statements of organization member could
not satisfy Hunt, citing Animal Lovers Volunteer
18 Assn., Inc. v. Weinberger (9th Cir. 1985) 765 F.2d
19 937, 939].)
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STATEMENT OF DECISION
allow it to challenge any action by any government
1 anywhere if it believes that action is "illegal." It is
2 a mere license to sue for its sole counsel, for BLC,
it is not a real association of people with
3 discernible common interests. If SDOG's new
purposes satisfied Hunt, its second prong would be
4 meaningless. Associations could simply state all-
encompassing purposes in corporate documents
5
and never need to show that they serve a well-
6 defined community within the general public. This
is not the law."
7
The Court, as noted above, disagrees with Defendants that the definition of "germane" is as
8
limited as urged by Defendants. From the Court's perspective, "germane" is more broadly
9
interpreted to be related or relevant to the topic being considered. As developed on cross-
10
examination of Speers, the lawsuits filed by Plaintiff, including this lawsuit, reflect a reasonable
11
interpretation of transparency, openness, access and accountability of governmental "decision-
12
makers" through the California Environmental Quality Act and "other land-use laws." Exh. "134"
13
bate stamp page 57. If good enough for the FTB in granting Plaintiff's exemption application
14
under Section 2370 I d of the Revenue and Taxation Code, Plaintiffs interpretation, as amplified
15
on by Mr. and Ms. Quiroz, is good enough for the Court.
16
The Court finds that the interests Plaintiff seeks to protect in this lawsuit are germane to
17
Plaintiffs organization's purpose.
18
3. Neither the claim asserted nor the relief reguested by Plaintiff reguires the
19
participation of Perine, as one of Plaintiff's members, in this lawsuit.
20
In its trial brief (ROA # 747), TMD argues, at page 22:
21
"Only if an association asserts on behalf of its
22 members a claim that "does not make the
23 individual participation of each injured party
indispensable to proper resolution of the cause"
24 does it have standing. (Warth v. Seldin (1975) 422
U.S. 490, 511.) Stated differently, if individual
25 participation from members is required for suit,
they must sue; under Hunt, the association may
26
not. (See Hunt, supra, 432 U.S. atp. 343.)
27
Nobody affiliated with SDOG could speak to Ms.
28 Perine's status as an interested person - her
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STATEMENT OF DECISION
business interests or when she became an SDOG
1 member. Ms. Perine alone provided this
2 information. Accordingly, her participation was
required here - in fact, the participation of all nine
3 ofSDOG's putative "members" was required here,
to determine if they owned hotels and thus had
4 standing - and SDOG thus cannot have
associational standing under Hunt.
5
6 The participation of SDOG's members here has
been plain ever since this Court compelled SDOG
7 to identify them. That they Were deposed and
some will be called to testify makes the point all
8 the plainer."
9 The Court, as noted above, finds that Perine has been, at all relevant times, a member of
10 Plaintiff. She has participated, albeit reluctantly, in this lawsuit in her capacity as a member of
11 Plaintiff. She appears to have been represented by Plaintiff's counsel throughout this lawsuit. In a
12 declaration filed with the Court (Exh. "175"), she expressed apprehension, if not fear, of retaliation
13 from "1MD, its counsel, and possibly others ... " Under the circumstances, Perine's election to
14 participate in this lawsuit in an indirect, representative capacity, as opposed to filing a direct claim
15 as an individual Plaintiff, is understandable.
16 The Court finds that neither the claim asserted nor the relief requested by Plaintiff requires
17 the participation of Perine, as one of Plaintiffs members, in this lawsuit.
18 Whether SDOG properly revived its suspended corporate status?
19 In support of its Motion for summary judgment (ROA # 580), TMD argued, at pages 21,
20 22:
21
"A suspended corporation cannot prosecute or
22 defend an action. (See Center for Self
Improvement and Communi tv Development v.
23 Lennar Com. (2009) 173 Cal. App. 4th 1543,
1552.) On or about January 9, 2012, the Secretary
24 of State revoked SDOG's corporate status... On or
25 about May 20, 2012, SDOG applied to the
Franchise Tax Board to revive its suspended
26 status... That application requires signature by
"[a]ny stockholder, creditor, member, general
27 partner, or officer" or "[a]ny person having an
interest in relief from suspension or forfeiture."
28 At the time of the revivor, Trowbridge was listed
-27-
STATEMENT OF DECISION
as the only officer or director... On or about
I November 21, 2012, the Franchise Tax Board
2 issued an entity status letter, apparently reviving
SDOG's corporate status ...
3
Because Ian Trowbridge did not sign SDOG's
4 corporate revivor, it was ineffective.
5
Revenue and Taxation Code section 23305
6 provides that only a member of the corporation
may sign an application for revivor."
7
Revenue and Taxation Code section 23305 states, in pertinent part:
8
"Application for the certificate on behalf of any
9 taxpayer which has suffered suspension or
forfeiture may be made by any stockholder or
10
creditor, by a majority of the surviving trustees or
11 directors thereof, by an officer, or by any other
person who has interest in the relief from
12 suspension or forfeiture."
13 See also ROA # 768, pages 29- 33.
14 The Court, notwithstanding Defendants' vigorous challenge, finds that the signature
15 attributed to Trowbridge on Plaintiffs reviver application (Exh. "128") is authenticate and that
17 The Court finds that Plaintiff properly revived its suspended corporate status prior to the
19 Whether SDOG is the alter ego of Cory Briggs and I or the Briggs Law Corporation which is
21 In support of its Motion for summary judgment (ROA # 580), TMD argued, at pages 23,
22 24:
"The evidence demonstrates that BLC controls
23 SDOG, not its purported "members." BLC is not an
"interested person" under the validation statutes
24
because it does not pay the Assessment. Thus BLC
25 and its alter ego, SDOG, both lack standing."
26
Courts pierce pleadings to conclude a sham
27 plaintiffs actions are those of its counsel. In Say &
Say v. Ebershoff (1993) 20 Cal. App. 4th 1759,
28
1761, an attorney filed a lawsuit against hundreds of
-28-
STATEMENT OF DECISION
defendants, was declared a vexatious litigant and
I then added a corporate entity as a fellow plaintiff.
2 The Court of Appeal concluded the corporate
plaintiff- the attorney's alter ego - should also be
3 declared a vexatious litigant and its corporate form
disregarded because it was used to "avoid the effect
4 of a lawsuit." (Id. at p. 1768)"
5
See also ROA # 768, pages 33-38.
6
The Court has read and considered Say & Say v. Ebershoff (1993) 20 Cal. App. 4th 1759.
7
Therein, the Court noted, at pages 1762, 1763, "On several occasions, Mr. Shieh has been declared
8
to be a vexatious litigant" after which he "continued to file lawsuits almost exclusively naming
9
lawyers as defendants."
10
"Mr. Shieh's misconduct and his use of Say & Say, Inc., to continue his persistent misuse
11
of the litigation system," as characterized by the Court at page 1766, bears no relationship to the
12
facts and circumstances of this lawsuit. There is no evidence that Briggs has used Plaintiff"to
13
perpetrate a fraud, circumvent a statute, or to accomplish some other wrongful or inequitable
14
purpose" such that the Court should "disregard (Plaintiff) and treat the acts as if they were done by
15
(Briggs)." I d. at 1769; Jack P. Meyers, Inc. v. Alcoholic Bev. etc. Appeals Bd. (1965) 238
16
Cal.App.2d 869, 873-874.
17
In its opposition to TMD's Motion for Summary Judgment (ROA # 645), Plaintiff asserted,
18
at pages 7, 8:
19
"Before turning to the particulars, however, SDOG
20
wants to address the preliminary legal claim that it
21 has no "members" on whose behalf it may
advocate. The Nonprofit Public Benefit Law
22 authorizes SDOG to include a provision in its
bylaws stating that it has no "members." CORP.
23 CODE § 531 0( a). By law, of course, the definition
of "member" is very narrow, limited to someone
24
identified in a corporation's articles or bylaws as
25 having the right to vote on directors, the
disposition of corporate assets, on a proposed
26 merger, or on changes to the articles or bylaws.
CORP. CODE§ 5056(a). SDOG has adopted such
27
a provision.
28
-29-
STATEMENT OF DECISION
That provision does not mean SDOG may have no
I "members" in the sense of persons on whose
2 behalf it advocates. Indeed, the law authorizes
SDOG to "refer to persons associated with it as
3 'members' even though such persons are not
members within the meaning of Section 5056."
4 CORP. CODE§ 5332(a).
5
SDOG is further authorized to do so without
6 charge- that is, to "benefit, serve, or assist persons
who are not members within the meaning of
7 Section 5056 for such consideration, if any, as the
board may determine or as is authorized or
8 provided for in the articles or bylaws." Id., §
9 5332(b)"
Plaintiff argued further, at pages 20, 21:
10
-30-
STATEMENT OF DECISION
I See also ROA # 772, pages 10-13.
2 As is clear from the trial evidence, Briggs is integrally involved in Plaintiff's activities and
3 the pursuit of its corporate purpose. Indeed, based on the witness testimony as well as the letter
4 issued by Mr. Quiroz, Lawrence and Ms. Quiroz (Exh. "160"), it is an open question as to how
5 much, if any, of its objectives Plaintiff could accomplish without Briggs' "abilities and
6 convictions." That acknowledged, there is no persuasive reason, based on the totality of the
7 evidence including the autonomy exercised by and the credibility of Lawrence and Mr. Quiroz as
8 Plaintiff's directors, for the Court to conclude that Plaintiff's TAC is a "sham" or "ultra vires," or
9 that Plaintiff should be deprived of standing to pursue this lawsuit because its alleged status as
II Defendant TMD and City's Motions to quash the trial subpoenas served upon TMD Board
12 of Directors Richard Bartell and William L. Evans and Mayor Kevin Faulconer
13 At the first phase of the trial, the Court deferred from ruling on Defendant TMD and City's
14 Motions to quash the trial subpoenas served upon TMD Board of Directors Richard Bartell and
15 William L. Evans and Mayor Kevin Faulconer (ROA # 724). In anticipation of the trial's next
16 phase, the Court grants in part and denies in part Defendant TMD and City's Motions to quash.
17 The City's Motion is granted and the subpoena served upon Mayor Faulconer is quashed. TMD's
18 Motion is denied and the subpoenas served upon Directors Richard Bartell and William L. Evans
23 Conclusion
24 The Court finds that, as set forth above, Plaintiff has standing to pursue this lawsuit. The
25 balance of Plaintiffs claim and Defendants' affirmative defenses will be tried together in the next
26 phase oft he trial. The Court sets a Status Conference on March 4, 2016 at 3:00 pm for the purpose
28
-31-
STATEMENT OF DECISION
lT IS SO ORDERED.
;~2:1~/6
3
4 Dated:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-32-
STATEMENT OF DECISION
DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 14
MARA W. ELLIOTT
City Attorney
Gerry Braun
Chief of Staff
CIVIL CRIMINAL
DIVISIONS DIVISION
General Litigation Public Safety, Labor, Domestic Violence & Code Enforcement
Unit Employment & Training Sex Crimes Unit Unit
Section
Worker’s Appellate
Compensation Unit
Unit
Public Services
Section
Special Litigation
Special
Unit Prosecutions Unit
Economic Development
Section
Exhibit 15
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Steven Moore
November 28, 2017
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Ent
City Attorney Mara Elliott discusses vacation rentals at an Ocean Beach Town
Council meeting. / Photo by Jamie Scott Lytle
City Attorney Mara Elliott has decided that her chief of sta
Gerry Braun’s communications are protected by attorney- TRENDING STORIES
client privilege, which means that anyone who releases Week Month Year
Braun’s communications could be subject to criminal
Encinitas
prosecution. Parking Lot for
the Homeless
Continues to
One problem with that theory is that Braun is not a member Stir Fears and
Anger
of the California State Bar.
Grossmont
High
Braun’s quali cations Basketball
for the city attorney Coach Is
Cashing in on
chief of sta job are a Tournaments
career in journalism
and communications Teachers at
San Diego
consulting, and a stint as former City Attorney Jan Charter
Goldsmith’s spokesman. He is Elliott’s political chief of sta , Schools Are
Far Less
whose job it is to forward Elliott’s career. He certainly is not Experienced
managing lawyers. Braun is the rst political chief of sta to Than
Traditional
serve a San Diego city attorney, and the rst senior manager School Peers
in recent memory not to be a lawyer himself.
A Year in,
Every political chief of sta looks at their email, text or tweet Gompers
Teachers
before they press send with the New York Times Rule in Union Has No
mind: How would you like to see what you have written in Contract and a
New Challenge
this email on the front page of the Times? The New York
Times Rule is one of the few things that keep politics from When Police
Can — and
devolving even more deeply into mayhem, and every chief Can't — Pull
of sta in America is subject to it. You Over
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Steven Moore
Steven Moore is a public a airs consultant
in San Diego and was a chief of sta in the
House of Representatives from 2006 to
2013.
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DECLARATION OF CORY J. BRIGGS, ESQ.
Exhibit 16
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Gerry Braun, the chief of sta for City Attorney Mara Elliott / Photo by Sam
Hodgson
Last year, Mara Elliott surpassed two other Democrats, who TRENDING STORIES
had more money and endorsements, to advance to the
Week Month Year
runo election for San Diego city attorney.
Encinitas
Parking Lot for
In an instant, she leaped from underdog to favorite. the Homeless
Continues to
Stir Fears and
That’s when Gerry Braun became an important adviser. Anger
Why?
♦♦♦
The delay frustrated the City Council, and I heard that Braun
had some interesting interactions with Council sta
members.
“It appears the city attorney has decided that, Mr. Braun, a
former reporter with no legal training I am aware of, is to be
treated as if he only, and always, conveys con dential legal
advice to her clients,” said Tinkov.
Elliott’s regular foe, attorney Cory Briggs, made the case that
attorney-client privilege could protect Braun’s messages.
I’m not sure what Braun sent to Ward or Chase. But he sent
something. Something Elliott and Braun do not want us to
see.
But he’d be the rst political chief of sta who can also claim
to his counterparts that if you share the messages he sends
to you, you are committing a crime.
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Scott Lewis oversees Voice of San Diego’s
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Editor in Chief. He also writes about local
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Steven Moore November 28, 2017
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110 West A St. Suite 650, San Diego, CA 92101
Phone: 619-325-0525
© 2020 Voice of San Diego, Inc. All Rights Reserved Terms of Use Policy
PROOF OF SERVICE
2. My __L_ business _ _ residence address is Briggs Law Corporation, 4891 Pacific Highway, Suite 104,
San Diego, CA 92110
3. On January 27 , 2020 , I served _ _ an original copy ....L__a true and correct copy of the
following documents: Points and Authoritiefi in Qpoosition to Motion for Protective Order:
Declarations of Steve Peace and Cory J. Briggs; Supporting Exhibits
4. I served the documents on the person(s) identified on the attached mailing/service list as follows:
_ by personal service. I personally delivered the documents to the person(s) at the address(es) indicated on the
list.
_ by U.S. mail. I sealed the documents in an envelope or package addressed to the person(s) at the address(es)
indicated on the list, with frrst-class postage fully prepaid, and then I
_placed the envelope/package in a box for outgoing mail in accordance with my office's ordinary
practices for collecting and processing outgoing mail, with which I am readily familiar. On the same
day that mail is placed in the box for outgoing mail, it is deposited in the ordinary course of business
with the U.S. Postal Service.
I am a resident of or employed in the county where the mailing occurred. The mailing occurred in the city of
__________,S,.,a..,n._.D~ie..,g.,..o, California.
_ by facsim i/e transmission. Based on an agreement of the parties or a court order, I sent the documents to the
person(s) at the fax number(s) shown on the list. Afterward, the fax machine from which the documents were
sent reported that they were sent successfully.
~ by e-m ail delivery. Based on the parties' agreement or a court order or rule, I sent the documents to the person(s)
at the e-mail address(es) shown on the list. I did not receive, within a reasonable period oftime afterward, any
electronic message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws _ _ of the United States _.f.__ of the State of California
that the foregoing is true and correct.
Mara W. Elliott, George Schaefer Attorneys for Defendant City ofSan Diego
David J. Karlin
Office of the City Attorney
1200 Third A venue, Suite 1100
San Diego, CA 92101-4100
Telephone: (619) 533-5800
Facsimile: (619) 533-5856
Dkarlin@sandiego.gov
Paul J. Pfmgst, John Morris Attorneys for Plaintiff San Diegans for Open
Rachel E. Moffitt Government
Higgs Fletcher & Mack LLP
401 West "A" Street, Suite 2600
San Diego, CA 92101-7913
pfingst@higgslaw .com
jmmorris@higgslaw .com
Moffittr@higgslaw .com