Anti-Slapp, constitutional rights and abuse of legal system, Brisso vs Bertain duke it out in lawsuit by Leo Sears against Greg Dale, Jack Crider and other Humboldt Bay Harbor Commissioners

On November 30, Judge Dale Reinholtsen patiently heard oral arguments by Mr. Paul Brisso on behalf of Humboldt Bay Harbor Commissioner Greg Dale and other commissioners as well as Humboldt Bay CEO Jack Crider who are being sued by private citizen Leo Sears, who is represented by Mr. Bill Bertain.

Judge Reinholtsen did not issue a ruling on November 30 and has taken the matter under submission.
The hearing was held for the lawsuit that Leo Sears has filed against Greg Dale, Jack Crider, and the rest of the Commissioners of the Humboldt Bay Harbor Recreation and Conservation District. Judge Reinholtsen did not make a ruling today on either the defendant's motion to strike or the continuance requested by Mr. Bill Bertain. 

The Fair Political Practices Commission sent a letter on November 10 to Mr. Bertain that they are looking into the allegations made by Mr. Sears. As required, they have notified Humboldt County District Attorney Maggie Fleming of this investigation they have opened.

Mr. Bertain filed an opposition to the defendant's motion to strike on November 16. Mr. Bertain also filed a declaration in support of objection to evidence based on newly acquired evidence on November 24. In this declaration, there are documents attached including emails which Mr. Bertain claims contradict declarations by Greg Dale that he did not participate in any Harbor District transactions with Pacific Seafoods/Coast Seafoods.

Mr. Brisso also filed responses. Mr. Brisso said that the lawsuit against Greg Dale was a violation of his first amendment rights and other constitutional rights. He also called most of the ex-parte issues "irrelevant."

At the November 30 hearing, Mr. Bertain asked the Judge for a 30 day continuance to file a supplemental opposition based on newly acquired evidence. There was no ruling issued on that request, yet.


From the FPPC Nov 5 monthly report:

Greg Dale     A-15-210 The Act does not prohibit a Commissioner of the Humboldt  Bay Harbor, Recreation and Conservation  District from  using campaign funds to pay for legal services related  to  defense of a civil lawsuit  alleging that the Commissioner  and the District violated Section 1090 because there  is a direct relationship between the  expenditure  for legal services and  the  Commissioner’s status as an elected officer.

Jay Wierenga, Fair Political Practices Commission Communications Director responded to me via email:

"Someone filed a complaint against Greg Dale. At this point, it is an active investigation. The FPPC does not have jurisdiction under the Political Reform Act to remove anyone from office. That would be up to any local ordinances that may be in place."

"Generally speaking, just receiving a complaint does not automatically trigger an investigation. Every complaint is looked to first (taken under review) to see if it has merit. If not, it’s dismissed. If so, then an investigation begins."

"If someone made a complaint and an investigation is opened, the full Commission does not approve a settlement/penalty until, obviously an investigation is completed and a proposed settlement/penalty is reached."

"As for what you sent me (from the Nov 5 monthly report), that appears to be an Advice Letter. Public officials can ask the FPPC Legal Division for advice, and that’s what this is, an advice letter.

 E. Advice Letter Summaries

Campaign

Greg Dale A-15-210

The Act does not prohibit a Commissioner of the Humboldt Bay Harbor, Recreation and Conservation District from using campaign funds to pay for legal services related to defense of a civil lawsuit alleging that the Commissioner and the District violated Section 1090 because there is a direct relationship between the expenditure for legal services and the Commissioner’s status as an elected officer."

Regarding the defendant's opposition to the ex-parte application by the plaintiff to continue the hearing for 30 days and the defense's objection to evidence related to special motion to strike, Judge Reinholtsen told Mr. Brisso he had not received his filed copy.

Mr. Brisso in his response called the Plaintiff's ex parte application, objections to evidence and motion to strike an "eleventh hour" filing. Mr. Brisso invoked Code of Civil Procedure 425.16, more commonly known as the Anti-SLAPP law and said, "the plaintiff's recent filings are untimely, fail to address the central issues in the motion, and are a transparent attempt to delay the hearing on the motion and create an authorized reply to the reply in the documents submitted in the motion.

In court Mr. Brisso said, "the defendant is entitled to an expedient resolution without discovery. Under the Code of Civil Procedure, they only have 9 days for a reply to the reply, they want 30 days."

Mr. Bertain responded that under Code of Civil Procedure 1054 there is a provision for upto 30 days. This is accurate according to  http://law.onecle.com/california/civil-procedure/1054.html.

Mr. Bertain said that the newly obtained evidence contradicts the "declarations of all five Commissioners, the CEO and Counsel."

Mr. Brisso bringing up the Anti-Slapp again said that "the first prong is whether there has been a showing by plaintiff to chill defendant's constitutional rights. The right to be elected is a constitutional right. The second prong is that the plaintiff threatened defendant Dale, asked him to resign from office and withdraw from the election and if he didn't, he would file a lawsuit. The plaintiff did not refute this, the plaintiff did not refute the timing of the lawsuit which interferes with Mr. Dale's right to run for office."

"The lawsuit was filed concurrently with mail in ballot procedures and plaintiff alleges that the timing was based on a September 15, 2015 quid pro deal." Mr. Brisso said that deal occurred in May 2014. "Now, Mr. Bertain wants to bring in what happened in June/August 2015."

"The shift of the burden is to the plaintiff for probability that he will prevail in the lawsuit," said Mr. Brisso in court.

Mr. Brisso then cited code saying that "the FPPC has sole jurisdiction to file lawsuit to enforce Code 1090 which plaintiff has done as a private citizen." Then minutes later Mr. Brisso clarified that the code he cited "on face a civil lawsuit can be filed and the FPPC does not have sole jurisdiction."

"This court does not have jurisdiction to remove an elected official," said Mr. Brisso, again clarifying that removal is limited to someone who has been convicted of a felony or fraud. "There is no evidence that Mr. Dale had any involvement. Mr. Dale had minor input into preliminary modification of the lease in Spetember 2015."

"I take issue with most of what counsel has said," is how Mr. Bertain started his response. "The FPPC is not the only authority to rectify the issue of conflict of interest." Mr. Bertain said that nowhere is the FPPC given exclusive jurisdiction. He cited a case he referred to in one of the filings, Thomson v Call as well as Government Code 1092. "There have been a number of cases decided in which private citizens" filed a complaint.

"What we are trying to do here is a private citizen is trying to nullify a transaction," said Mr. Bertain. "A 1.25 million dollar loan in exchange of a lease."

Mr. Bertain said that the FPPC can seek to remove someone from office. Referring to several exhibits in his filings, he said there are documents that "go into the pro quid transaction."

"The Sept 15, 2015 transaction is misdescribed (by Mr. Brisso), that document refers to document signed in May 2014," said Mr. Bertain. "Those transactions also violate Government Code 1090. The benefits to the public entity are significant."

Refuting what Mr. Brisso said, Mr. Bertain countered that "contracts can not only be voided if there is fraudulent conduct. According to our interpretation, Greg Dale is an officer and if an officer is involved in any way."

I am including a link to Government Code 1091.5 (b (2) so readers can check the definition of an officer for themselves. An officer does not neccessarily mean a corporate officer as Mr. Brisso claimed in court and it supports Mr. Bertain.

.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=1091.5


"The way the defendants are asking an officer to be viewed is narrow," said Mr. Bertain. He said Government Code 87103 is more appropriate in this instance. 

.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=87103.

Mr. Bertain said that the defense's use of anti-Slapp law was a violation of the code written to alleviate abuse of that law. "Our lawsuit is not about him seeking public office, it is about his conflict of interest. Conflict of interest is not a protected constitutional right."