ASSESSMENTS UPON THE ASSESSED AN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney CARMEN A. BROCK, Deputy City Attorney (CSBN162592) Of?ce of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533?5800 Facsimile: (619) 533-5 856 Exempt from fees per Gov?t Code 6103 . To the bene?t of the City of San Diego Attorneys for Defendant, City of San Diego SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO SAN DIEGANS FOR OPEN GOVERNMENT, Case No. CITY OF SAN EX PARTE Plaintiff, - NOTICE AND APPLICATION TO V. REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT EXHIBITS CITY OF SAN and ALL PERSONS INTERESTED IN THE MATTER OF THE RENEWAL OF THE SAN DIEGO TOURISM MARKETING DISTRICT, THE LEVYING OF BUSINESSES FOR A PERIOD FO THE AND YEARS, AND THE PRESCRIBING OF A METHOD FOR COLLECTION OF ASSESSMENTS GED Ex Parte Hearing: February 26, 2015 Time: 8:30 am. Judge: Io el R. Wohlfeil Defendants. Dept: 73 Complaint ?led: December 19, 2012 TO ALL PARTIES TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 26, 2015, at 8:30 a.m. or as soon thereafter as the matter may be heard in Department of the above-entitled court located at 330 W. Broadway, San Diego, California, the Defendant City of San Diego (City) will apply to the court, 1 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT parte, for an order to remove San Diegan?s For Open Government (SDOG) Member 4 deposition transcript (Transcript) from the restrictions of the Protective Order issued by the court on January 8, 2014 (Protective Order). The City contends good cause exists for its ex parte application, and asserts the City will suffer irreparable harm if it is not allowed to timely respond to requests made pursuant to the California Public Records Act (CPRA) and to further investigate information affecting the rights oftlie citizens of San Diego as more fully discussed in the City?s Memorandum of Points and Authorities filed concurrently herewith. The City has complied with California Rules of Court, Rule 3.1203 and has given appropriate notice to all parties of this ex parte hearing. Cal. Rules Ct, Rules 3.1202, 3.1203,. 3.1204. Plaintiff and Petitioner SDOG will oppose the City?s Application and has represented it will attend the hearing of the City?s Application as noticed. See Decl. Brock. The City?s Ex Parte Application is based on this Notice of Ex Parte Application, the Memorandum of Points and Authorities in support thereof, the declaration of Carmen A. Brock, DCA, filedconcurrently herewith, supporting exhibits, the pleadings and papers on file in this action, and the argument of counsel at the time of the hearing on the City?s Ex Parte Application. Dated: February 25, 2015 JAN I. GOLDSMITH, City Attorney Carmen A. Brock Deputy City Attorney Attorneys for Defendant, City of San Diego 2 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT MEMORANDUM OF POINTS AND AUTHORITIES I. BACKGROUND As the court is well aware, San Diegans for Open Government?s (SDOG) lawsuit is a reverse validation action brought pursuant to Code of Civil Procedure section 860 et. seq. to challenge the City?s Tourism Marketing District (TMD) and its asSessment levies. It had been the City of San Diego?s (City) and the Tourism Marketing District Corporation?s (TMD Corp) assertion that SDOG must demonstrate at least one of its members has paid, or is obligated to pay, the TMD assessment to have standing to sue the City and TMD Corp in this action. However, initially, SDOG refused to disclose the identity of its members without a protective order (Protective Order). On January 8, 2014, the court issued a Protective Order protecting the disclosure of the identity of members, its officers and directors, or any other individual directly associated with SDOG. EX. A. On April 10, 2014 SDOG disclosed the identity of the members SDOG would rely upon for standing in this lawsuit. The members were assigned a numerical pseudonym for purposes of the Protective Order. See Exs. B, (under seal). On December 1, 2014, Member 4?s deposition was taken. Member 4 disavoWed any membership in SDOG. Member 4 also disavowed any knowledge iof mission and the purpose of the above action. EX (under seal). On February 24, 2015, the City requested SDOG remove the Con?dential designation with respect to the deposition Transcript of Member 4 as allowed by Paragraph 9 of the Protective Order for the following reasons 1) Member 4 is not an SDOG member and, thus, is not within the class of people covered by the Protective Order; (2) Member 4?s information is new public information; and (3) certain information contained in the Transcript had now become directly relevant to a matter of grave public interest. SDOG refused to remove the Confidential designation. See Decl. Brock. Therefore, pursuant to Paragraph 9 of the Protective Order, the City hereby requests the court issue an order removing the Member 4 Transcript from the restrictions of the Protective Order for the reasons discussed below. As directed by the Protective 3 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT AWN Order, SDOG now bears the burden of demonstrating the Transcript is Con?dential. The City respectfully submits the City will suffer irreparable harm if the Member 4 Transcript is not immediately released from the constraints of the Protective Order. II. THE TRANSCRIPT IS NOT CONFIDENTIAL INFORNIATION SUBJECT TO THE PROTECTIVE ORDER The Protective Order de?nes ?Con?dential Information? as information that discloses the identity of the SDOG members, of?cers and directors, or any other individual directly associated with SDOG where the identity of the person is not a matter of public record. EX. A, p. ms. 24- 28. Member 4 testi?ed Member 4 is not a member of SDOG and has no knowledge of the function or purpose of SDOG, or the purpose of this lawsuitlns. 1?9; 31, Ins. 10?20; 34, 1113. 22?25; 35-37; 39, lns.18-23. At Member 4?s deposition, the witness testi?ed the witness had no idea SDOG had designated Member 4 as an individual who had paid (or had the obligation to pay) the TMD assessment thereby conferring standing for SDOG to sue the City and TMD Corp. in this action. EX. D, p. 42, lns. 1-7. As a member and ordinary witness with no associational af?liation with SDOG, Member 4 is not subject to the provisions of the Protective Order, rendering the deposition Transcript no different than any other witness deposition taken pursuant to a subpoena in a civil action. The very purpose of the Protective Order was to protect the associational rights of the SDOG members from disclosure, not to shield ordinary witness testimony from disclosure in a civil action. Here, there are no associational rights to protect, warranting the removal of the Transcript from the restrictions of the Protective Order. SDOG will not be able to meet its burden to Show Member 4?s associational rights to privacy are in any manner at issue in this case. 4 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT JAMNH THE INFORMATION CONTAINED IN THE TRANSCRIPT IS PUBLIC INFORMATION NOT SUBJECT TO THE TERMS OF THE PROTECTIVE ORDER. The de?nition of ?Confidential Information? under the Protective Order further extends to any information produced by a non-party in discovery pursuant to a subpoena. EX. A, p. 2, lns. 6?13. The deposition of Member 4 was taken pursuant to a deposition subpoena duly served on the witness. EX. D, ex. A thereto. However, as stated above, the testimony given by the witness had nothing to do with SDOG or the subject of this lawsuit since the witness disavowed any association with SDOG. The remaining testimony offered by the witness, was, therefore, no different than background information any witness would provide pursuant to a validly served deposition subpoena. For this reason, the information is, again, not the type of?conf1dentia information envisioned by the Protective Order. I Furthermore, on February 23, 2015 and February 24, 2015, all of the information in the Transcript which SDOG will assert is ?con?dential? was made public by two KPBS inewssource news media feature stories (Media Releases). See Ex. and F. The information revealed by the media is now a matter of public interest and concern. On February 23, 2015 the City received a California Public Records Act (CPRA) request from the media asking for further information related to the subject of the Media Releases. EX. G. The information contained in the Transcript is responsive to the CPRA request, and, pursuant to the CPRA, the information should be provided to the public. The City is, however, prohibited at present by the Protective Order from meeting its obligationunder the CPRA. The public has a right to obtain any information which SDOG had already allowed to become a matter of public information and which bears on the public?s right to be informed. For this additional reason, the City submits .?good cause? exists to order the Transcript released from the restrictions imposed by the Protective Order to enable the City to meet its important obligation under the CPRA. 5 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT IV. THE PUBLIC INTEREST COMPELS THE RELEASE OF THE TRANSCRIPT FROM THE RESTRICTIONS OF THE PROTECTIVE ORDER. Most importantly, the Media Releases brought to light pertinent facts which indicate the interests of the citizens of San Diego and those of the City may have been seriously jeopardized. This alone over-rules any need to keep any infonnation contained within the Transcript ?Confidential.? See Exs. E, F, H. Speci?cally, with reference to the February 23, 2015, Media Release, the public has a right to any information related to questionable recorded documents or deeds. To the extent the information contained in the Member 4 Transcript aids in that pursuit, the infonnation must be made public. Generas v. Justice Court, 106 Cal. App. 3d 678, 682 (1980); People v. Denman, 218 Cal. App. 4th 800, 808 (2013); see also People v. Baender 68 Cal.App. 49, 55 (1924). Relevant information contained in the Transcript should not be shielded from disclosure by a half?hearted assertion of ?right to privacy.? Critically, the February 24, 2015, Media Release exposed a potential con?ict between a key employee of a City contractor who obtained high value contracts for services from the City without disclosing the key employee?s personal relationship with a lawyer who has sued the City over 50 times, including lawsuits involving projects worked on by the employee. See Ex. F, H. The Transcript contains information highly pertinent to these allegations. Therefore, the public has a right to know the identity of employee and the employee?s connection to lawsuits ?led against the City, as well as losses incurred by the City thereafter as a result of those lawsuits. To maintain the ?Confidentiality? of Member 4?s Transcript in this instance is akin to igipmgsing a gag order without legal basis, all to the detriment of the City and its citizens. It is a fundamental tenant of the CPRA. that the public has a right to any record containing infonnation related to the conduct of the City?s. business, which, in this case, critically extends to Member 4?s Transcript. Community Youth Athletic Center v. City of National City, 20 Cal.App.4th 1385, 1418 (2013). SDOG will be unable to demonstrate why the public?s right to obtain this information should be barred. The information must be disclosed. . CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT V. I GOOD CAUSE EXISTS TO RELEASE THE TRANSCRIPT FROM THE RESTRICTIONS OF THE PROTECTIVE ORDER The open conduct of the people?s business is a fundamental and necessary right of every person in this State. Gov. Code. ?6250. Just as the people of the State have a right to know how their elected officials conduct the public?s business, they are entitled to know the identity of those who may subvert or interfere with the conduct of the public?s business. See 6. g. Eisen v. Regents of University of California 269 Cal. App. 2d 696, 704 (1969) [public entitled to know identity of of?cers of campus organizations granted use of public property]. The public?s ?right to know? is expressed in the preamble to the Ralph M. Brown Act, Government Code section 54950, which states public commissions, boards, councils and other public agencies exist exclusively to aid in the conduct of the people's business. All actions taken by these agencies must be performed ?openly,? as SDOG is fully aware. The people?s ?right to know? not only demands public access and exposure to recorded of?cial actions, but it also includes the right to know the identity of those who, like here, may obstruct'the valid conduct of the public?s . business. Thus, anyone?s claim to a right of rivacy must be balanced a ainst the ublic?s I interest in the dissemination of information demanded by the democratic process. Black Panther Party v. Kehoe 42 Cal. App. 3d 645, 651-652 (1974); see also Sacramento County Employees Retirement System v. Superior Court 195 Cal. App. 4th 440, (2011). It is a foregone conclusion SDOG will claim Member 4?s deposition Transcript is subject to the. Protective Order to protect the witness? ?right to privacy.? This has been a, consistent theme throughout discoVery in this litigation. However, the dissemination of information regularly obtained through depositions in the discovery process only becomes an ?invasion of privacy? when: (1) the fact is private; (2) the fact has been wrongly disclosed; (3) and it offends . a reasonable person?s ordinary sensibilities to have had the information disclosed. Sipple v. Chronicle Publishing Co. 154 Cal.App. 3d 1040, 1045 (1984). Here, the information regarding Member 4 contained in the Transcript is nothing more than ordinary and customary information obtained in any deposition as foundation for the witness? testimony. Furthermore, all of the information has already been disclosed by the media, presumably with the knowledge of SDOG 7 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT and its attorney. Thus, in this instance, the public interest certainly supersedes an alleged ?right to privacy? to basic foundation facts. SDOG bears the burden of proving otherwise, or proving truly ?private? information cannot be redacted from the Transcript prior to disclosure. The City respectfully submits, there is no good reason to constrain the public?s right to know under the guise of an ?invasion of privacy.? VI. APPROPRIATE EX PARTE NOTICE HAS BEEN GIVEN Rule 3. 1203 of the California Rules of Court requires any party seeking ex parte relief to notify all parties no later than 10:00 am. the court day before the ex parte appearance of the request for ex parte relief. The party seeking ex parte relief must specify the nature of the relief to be request and the date, time and place for the presentation of the application. As more fully set forth in the declaration of Carmen A. Brock, Esq. ?led concurrently herewith, counsel for SDOG was notified of the City?s Ex Parte Application on February 24, 2015 at 12:12 pm. SDOG notified the City it would appear at the Ex Parte Hearing and will oppose the City?s Application. VII. CONCLUSION WHEREFORE, for all of the foregoing reasons, the City respectfully submits it has demonstrated good cause for the court to grant its Application to remove the Transcript of Member 4 from the restrictions imposed by the Protective Order in this action. The City will suffer? irreparable harm if it is not allowed to comply with its duties under the CPRA and. JAN 1. :ttorney By QWW Carmen A. Brock Deputy City Attorney to investigate fully the issues raised by the recent Media Releases. Dated: February 25, 2015 Attorneys for Defendant, City of San Diego 8 CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT JAN 1. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney CARMEN A. BROCK, Deputy City Attorney (CSBN162592) Of?ce of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101?4100 Telephone: (619) 533?5800 Facsimile: (619) 533?5856 Exempt from fees per Gov?t Code 6103 Attorneys for Defendant, City of San Diego To the bene?t Ofthe City Of san Diego SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO SAN DIEGANS FOR OPEN GOVERNMENT, Case No. . Plaintiff, - DECLARATION OF CARMEN A. v. BROCK, DCA IN SUPPORT OF CITY OF SAN EX PARTE CITY OF SAN and ALL PERSONS APPLICATION TO REMOVE INTERESTED IN THE MATTER OF THE TRANSCRIPT FROM RESTRICTIONS RENEWAL OF THE SAN DIEGO TOURISM OF PROTECTIVE MARKETING DISTRICT, THE LEVYIN OF ASSESSMENTS UPON THE ASSESSED GED BUSINESSES FOR A PERIOD FO THE THIRTY-NINE AND YEARS, EX Parte Hearing: February 26, 2015 AND THE PRESCRIBIN OF A METHOD Time: 8:30 am. FOR COLLECTION OF ASSESSMENTS Judge: Joel R. Wohlfeil Dept: 73 Defendants. Complaint ?led: December 19, 2012 I, Carmen A. Brock, declare as follows: 1. I am an attorney licensed to practice before all the Courts in. the State of California. I serve as a Deputy City Attorney for the City of San Diego (City). I am the Deputy City Attorney assigned to represent the City in the above entitled action. Except where stated on information and belief, I have personal knowledge of the facts set forth in this declaration and DECLARATION OF CARMEN A. BROCK, DCA IN SUPPORT OF CITY OF SAN EX PARTE APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE ORDER LII-RWN 10' 11 12 13 i4 15 16? 177could and would testify competently to those facts if called as a witness to do so. 2- On February 24, 2015, I personally asked Cory Briggs, attorney for San Diegans for Open Government (SDOG) if SDOG would agree to remove the ?Con?dential? designation from Member 4?s deposition transcript (Transcript) as allowed by Paragraph 9 of the Protective Order issued by this court on anuaiy 8, 2014 (Protective Order) I informed Mr. Briggs if SDOG would not agree to remove the Con?dential designation on the Transcript, the City of San Diego (City) would move by ex parte application (Application) on February 26, 2015, at 8:30 am, to request the court remove Member 4?s Transcript from the requirements of the Protective Order as allowed by Paragraph 9 thereof. Mr. Briggs informed me SDOG would not voluntarily agree to remove the Confidential designation. 1 3. On the same day, February 24, 2015, I sent an email to all attorneys of record in this action informing them that the City?s Application to remove Member 4?s Transcript from the requirements of the Protective Order would be heard in Department 73 of the above referenced court on February 26, 2015 at 8:30 am. A true and correct copy of my email noti?cation is attached to the City?s Application as Exhibit It is my understanding SDOG will appear at the hearing and will oppose the City?s Application. It is also my understanding the Tourism Marketing District Corporation?s (TMD Corp) will appear at the hearing in support of the City?s Application. 7 4. A true and correct copy of the court?s January 8, 2014, Protective Order is attached to the City?s Application as Exhibit - - 5. A true and correct copy of ReSponses to Form Interrogatories dated April 10, 2014 has been submitted to the court separately, conditionally under seal, as required by the Protective Order as Exhibit to the City?s Application. 6. A true and correct copy of Voluntary Identi?cation of ?Hotelier? Member ?ling dated June 27, 2014 has been submitted to the court separately, conditionally under seal, as required by the Protective Order as Exhibit to the City?s Application. 2 DECLARATION OF CARMEN A. BROCK, DCA IN SUPPORT OF CITY OF SAN EX PARTE APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE ORDER 7. A true and correct copy of Member 4?s Deposition Transcript dated December 1, 2014 has been submitted separately, conditionally under seal, as required by the Protective Order as Exhibit to the City?s Application. 8. tine and correct copy of the KPBS inewssource article dated February 23, 2014, entitled ?San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions,? found on the web at is attached to the City?s Application as Exhibit 9. A true and correct copy of the KPBS inewssource article dated February 24, 2014, entitled ?San Diego Attorney?s Enviromnental Lawsuits Could Be Tainted by Con?ict of Interest,? found on the web at S/feb/24/ is attached to the City?s Application as Exhibit 10. A true and correct copy of the email received by the City from Brad Racino, Investigative Reporter, dated February 23, 2015 requesting records pursuant to Government Code sections 6250 to 6277 is attached to the City?s Application as Exhibit 11. . A true and correct copy of the City?s Memorandum dated February 24, 2015, regarding Helix Environmental Planning, Incorporated, is attached to the City?s Application as Exhibit .I declare under penalty of perjury under the laws of the State of California that the foregoing istrue and correct. Executed this 4th day of February 25, 2015 in San Diego, main/99.4% Carmen A. Brockgeclarant California. 3 DECLARATION OF CARMEN A. BROCK, DCA IN SUPPORT OF CITY OF SAN EX PARTE APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE ORDER I?I?l ASSESSMENTS UPON THE ASSESSED JAN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney CARMEN A. BROCK, Deputy City Attorney (CSBN162592) Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533?5 800 Facsimile: (619) 533-5856 Exempt from fees per Gov?t Codel? 6103 . To the bene?t of the Ci of San Diego Attorneys for Defendant, City of San Diego ty SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO SAN DIEGANS FOR OPEN GOVERNMENT, Case No. Plaintiff, CITY OF SAN NOTICE OF V. LODGMENT AND LODGMENT OF . . DOCUMENTS IN SUPPORT OF CITY OF SAN and ALL PERSONS EX PARTE APPLICATION . INTERESTED IN THE MATTER OF THE CONDITIONALLY UNDER SEAL RENEWAL OF THE SAN DIEGO TOURISM PURSUANT TO PROTECTIVE ORDER MARKETING DISTRICT, THE LEVYING OF GED BUSINESSES FOR A PERIOD FO THE AND ONE-HALF YEARS, EX Parte Hearing: February 26, 2015 AND THE PRESCRIBING OF A METHOD Time: 8:30 am. FOR COLLECTION OF ASSESSMENTS Judge: Joel R. Wohlfeil Dept: 73 Defendants. Complaint ?led: December 19, 2012 TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE the enclosed documents lodged in support of the City of San Diego?s (City) EX Parte Application to Remove Transcript From Restrictions of Protective Order (Application) are subject to the Protective Order issued by this court on January 8, 2014, and are lodged herewith conditionally under seal as required by Paragraph 8 of the Protective Order. Dated: February 25, 2015 IA MITH City Attorney BY Lx_ Cannen Mali; Deputy City Attorney 1Attorneys for Defendant, City of San Diego CITY OF SAN NOTICE OF LODGMENT AND LODGMENT OF DOCUMENTS IN SUPPORT OF EX PARTE APPLICATION CONDITIONALLY UNDER SEAL PURSUANT TO PROTECTIVE ORDER EXHIBITA. Coloniuono It Lavln PC: 1131'? PLEASANT VALLEY ROAD 13263.8 I PENN VALLEY. CA 9594?$035 MICHAEL 0. RCOLANTUONO, State Bar No. 143551 MColanmom?g?rCLLAVv'. US DAVID J. RUDERMAN, State Bar No. 245989 RYAN THOMAS DUNN, Stale Bar No. 268106 COLANTUONO Sc LEVIN, PC 11364 Pleasant Valley Road Penn Valley, California 95946-9000 Telephone: (530) 432-7357 Facsimiie: (530) 432-7356 Attorneys for Defendant SAN DIEGO TOURISM WRKETMG DISTRICT CORPORATION FILE mark of the Superior Co urt MN 08 2W4 ?memWW SUPERIOR CO URT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO, CENTRAL COURTHOUSE SAN DIEGANS FOR OPEN GOVERNMENT, Plaintiffs, v. CITY OF SAN and ALL PERSONS INTERESTED IN THE MATTER OF THE RENEWAL OF THE SAN DIEGO TOURISM MARKETING DISTRICT, THE LEVYING OF ASSESSMENTS UPON THE ASSESSED BUSINESSES FOR A PERIOD OF THIRTY- NINB AND ONE-HALF YEARS, AND THE PRES CRIBING OF A METHOD FOR COLLECTION OF ASSESSMENTS, Defendants. IT IS HEREBY ORDERED as follows: CASE NO. Unlimited Jurisdiciiqn (Case assigned to Hon. .ToeI Wohlfeil) PROTECTIVE ORDER FILE CompIaint Filed December 19, 2012 1. As used herein, CONFIDENTIAL MORMATION means information that discloses the identity. of members, of?cers; and directors 01', Or any other individUaIs diree?y associated with, San Diegans for Open where the identity and af?liation with San Diegaus for Open Government of such person is not a matter of public recerd at the time ofthc disclosure pursuant to this Protective Order. 1 PROTECTIVE ORDER "an - - Colantuono at Levin, PC 113? PLEASANT VALLEY ROAD PENN vmsv. ca 1232633 '24 25 26 27 28 2. CONFIDENTIAL INFORMATION disclosed by an}r party or a third party (hereinafter ?Producing Party?) to any other party (hereinafter ?Receiving Party?) pursuant to discovery in this action shall be used solely for purposes ofthis litigation and shall not be disclosed directly or indirectly to any party, attorney. or other person who is not subject to this Protective Order. 3. Any information produced by a non-party in discovery in this litigation pursuant to subpoena or otherwise may be designated by such non-party as CONFIDENTIAL INFORMATION under this Protective Order, and any such designation by a Doric-party shall have the some force and effect, and create the same duties and obligations, as ifnrade by one ofthe undersigned Parties. Any such designation shall also functionas consent by such Producing Party to the authority of the Court in this proceeding to resolve and conclusively determine any motion or other application made by any party with reapeot to such designatiomor any other matter otherwise arising under this Protective Order. . i 4, A Producing Party may designate mom:th as CONFIDENTIAL INFORMATION using the following procedures: a. Information set forth in responses to discovery requests or in documents produced for inapeetion will be designated as CONFIDENTIAL INFORMATION provided that1 prior to delivery to the Receiving Party, the responses or ofdo nutrients shall be marked by the Producing Party with the following legend: CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER Information revealed during a deposition upon oral examination will be designated as CONFIDENTIAL INFORMATION ifthe Producing Party has: indicated on the record Or in writing, at the time the deposition was taken or prior to the conclusion of the deposition, that portions of the deposition contain and (ii) instructed the court 2 [psorossot anoreonve'ososs mun- aa a: Levin. PC 13M PLEASANI um.st PENN VALLEY. CA Valeria-90m: I23163.8 .1 522' b) 23 reporter prior to preparation Of the transcript to indicate on the face pagt: of the daposition that it contains CONFIDENTIAL INFORMATION. 5: Access to infomation designated as CONFIDENTIAL shall be limited to the following persons: a. Counsel Ofrecord for a Receiving Party, their af?liated attorneys, and stOnOgraphic, clcr-ical, and legal assistant cmployecs whosc?mctinns require access to CONFIDENTIAL (ii) for a Receiving Party, their affiliated attorneys, and stcnographic, clerical; and legal assistant employees whose functions require access to CONFIDENTIAL - b. Of?acrs, directors, partnars, mam hem, employees, elected of?cials and agents Of a Receiving Party that the Receiving Pany's counsel degms necessary to aid counscl' in the prosecution and/or defense of this lawmit; 3 PROTECTIVE ORDER no.? -n Colnntuono 3v. Levin. PC 1 13454 PLERSANI VALLEY noon PENN CA l23263Outside carperts or consultants for 2: Receiving Party whose advi cc and consultation are being considered or will be used by such party in connection with this action, including their and clerical personnel; A Witness on behalf of, or a current or former consoltent or emplofec of, the Producing Party, (ii) a witness who has previously had access to the CONFIDENTTAL INFORMATION, any other witness with information relevant to the issues in this litigation; provided that INFORMATION may be shown to a former consultant or employee of the Producing Party, or to any witness described in clause of this Paragraph only if such witness shall ?rst sign the Agreement To Abide By - Protective Order in the fer-tn of Exhibit A attached hereto from each such witness who would require access to CONFIDENTIAL INFORMATION, and counsel shall retain in his or her ?le the original of each such signed Agreement To Abide By Protective Order. Any person af?liated with a public agency who requires access to CONFIDENTIAL INFORMATION to receive review, process, end/or respond to a California Public Records Act (CPRA) request, a request under the Freedom of Information Act or any other procedure for requesting and receiving copies of public documents or records submitted by a Receiving Party; provided that any request for copies of public documents or records held by a public agency. shall contain no mere CONFIDENTIAL than reconnany necessary for the public agency and its personnel to respond to the request; such as, without limitatiOn, the relationship batman an identi?ed person and San Diegans for Open Dopticating services, and auxiliary services of a like nature, routinely engaged by counsel; and The Court, its authorized staff; and court reporters (whether at depositions, 4- PROTECTIVE ORDER Levln Itsod VALLEY ROAD PENN mun- CA weirdo-goon I 23263hearings, or any other proceeding). 6. Absent further. order of this Court, CONFIDENTIAL INFORMATION shall not be made public by any Receiving Party, and shall ho used or disclosed only as pzovided for in this Protective Order. 7. Should any party wish to use any CONFIDENTIAL INFORMATION, or any papers cantaining or making reference to the contents of such intimidation, in any ploading or document submitted to the Court in this litigation that is not ?lodor lodged Linda seal pursuant to Paragraph 3, those individuals whose identi?es are covered by this Protective Order shrill be referred to by a pseudonym (cg. ?Member provided that the use: of?a pseudonym is not required for discovery motions filed or lodged with the Court or when discovery materials are ?led or lod god in Court in connection with discovery motions, or proceedings. 8. Use of CONFIDENTIAL INFORMATION in Court ?lings: a. In the event that a Party (other than the Producing Para) wishus to use any CONFIDENTIAL INF ORMATION, or any papers c0ntaining or making reference to the contents of such information, in any plodding or document filed with the Court in this litigation, that Party (for purposes of this palugraph 8(a) only, the ?Submitting Party") shall lodge such pleading or document and CONFIDENTIAL INFORMATION with the Court under seal in a manner with Rule ofthe continua Rules Gram and shall, on the same day, serve a copy of such pleading or document and CONFIDENTML WFORMATION by or ovomight mail on the Producing Party's counsel. If the Producing Pariy wishes to request that the - CONFIDENTIAL moor/[Arrow so lodged, and any papors containing or making reform or: to such CONFEENTIAL INFORMATION so lodged. be ?lod undersea], tho Pmducing Party must, within ten 0) business days after senrico of such notice, file a noticed motion to seal pursuant to Rules 2.550 and 2.551 of?tho Califomia Ru has of Court. The CONFIDENTIAL INFORMATION, and any papers containing or making reference to the 5 PROTECTIVE ORDER .u-v Colanruono e. Levin. PC 113611 PLEASANT VALLEY ROAD PENN VALLEY. CA 113263.contents of such information, shall remain lodged under seal until such time as the Court can conduct a hearing and make a determination on the Producing Party?s motion to sea]. in In the event that the Producing Party wishes to use any CONFIDENTIAL INFORMATION, or any papers containing or melting reference: to the contents of such Information, in any pleading or document ?led with the Court in this Litigation, and die Producing Party wishes to request that such pleading or document be ?led tinder seal, then the Produdng Party shall ?le a noticed motion for an order. directing that such pleading or document be ?led Under seal pursuant to Rules2.550 and 2.551 of the California Rules of Court. 9. The acceptance of INFORMATION by the parties shall not constitute an admission or concession or permit an inferencothat the CONFIDENTIAL INFORMATION is in fact confidential. An],r Receiving Party may at any time request that the designating party remove the CONFIDENTIAL designation with respect to any document, object or information. Such request shall be made to counsel for the Producing Party, and shall particularly identify the designated INFORMATION that the Receiving Party contends is not con?dential and the ransom supporting its contention. If the Producing Party does not agree to remove the CONFIDENTIAL designation, then the party contending that such documents or infonnation are not con?dential may request by triotion that the Court remove such documents or infonnation from the restrictions of this Protective Order. The border: ofdemonstrating that the docunients or information is con?dential shall be on the Producing Party. 10. This Protective Order shall not prevent a party ?om attempting to examine about CONFIDENTIAL at depositions and at trial, persons who are authorized to receive CONFIDENTIAL MORMATION as identi?ed herein in Paragraph 5. This Protective Order shall not prevent counsel from examining a witness to determine wh ether he?or she has prior knowledge of CONFIDENTIAL so long as such examination shall be in a manner that does not disclose the details of the CONFIDENTIAL INFORMATION to persons who are not authorized to receive WFOMTION as identi?ed herein in Paragraph 5. If a 6 PROTECTIVE ORDER HahnColoniuoho ?t Lovln. PC ?364 FLEASANI vAtLE?r ROAD PENN VALLEY. CA 1232618 24 25 25 :27 28 witness denies that he or she had prior knowledge INFORMATION and the deposing part),? has a good faith belicfthat the witness knew otherwise but the deposing party is precluded from questioning the witness further because it might disclose the details of the CONFIDENTIAL INFORMATION, each party reserves the right to later seek to examine the witness concerning the CONFIDENTIAL INFORMATION and each party reserves all objections to lerther eXamination. I I l. CONFIDENTIAL INFORMATION may be imed in testimony at trial, at an},r motion heating, and at depositions, and mag be offered in evidence at trial or at any motion hearing, aI] subject to any ?lrther Order regarding con?dentiality as this Court may entenr and may be used to prepare fer and conduct discovery, to prepare for trial and to sopport or oppose any rootion, all subject to this Protective Order, but may not be used for any other purpoSe except as expressly provided herein or by further Order of the Court. At the request of a Producing Patty, any person(s) not permitted access to CONFIDENTIAL IN FORMATION under Paragraph 5 may be barred from attending any portion of any hearing or deposition(s) at which CONFIDENTIAL INFORMATION is revealed, subject to any further Order regarding confidentiality as this Court may enter. 7 12. Nothing in this Order shall bar or otherwise restrict any attorney from rendering advice to a party client in this action and in the course thereof, relying upon such attorney?s I examination of CONFIDENTIAL provided, however, that in rendering such advice and in otherwise communicating with such client, the attcmey shall not disclose any CONFIDENTIAL to unauthorized persons. 13. The inadvertent or mistaken disclosure by Producing Party of CONFIDENTIAL INFORMATION shall not constitute a waiver of any claim of con?dentiality except where?) within ?fteen (i 5) days of the Receiving Party?s receipt of the inadvertent or mistaken disclosure of CONFIDENTIAL INFORMATION, or within ?fteen I 5) days of entry of this Order,'whichever is later, the Producing Party notifies the Receiving Party of such inadvertent or mistaken disclosure and, (ii) within thirty (30) days of having provided such notice, the Producing Party ails to provide properly revdesignated to the Receiving Party. During the thirty (30) day period after notice, the materials shall be treated as designated in the Producing Party?s notice. Upon receipt of 7 PROTECTIVE ORDER . .. - -7..- Colantuono o. town PC 115? VALLEY ROAD 1232633 DENN VALLEYproperly redesignuted documents, the Receiving Party shall return all unmarked or incorrettly designated documents and other materials to the Producing Party within five business days. The Receiving Party shall not retain copies thereof and shell treat information contained in said idocuments and materials and any summaries or notes thereof as appropriately marked pursuant to the Producing Party?s notice. 14. 7 Should any CONFIDENTIAL INFORMATION be disclosed, through inadvertencc or otherwise, by the Re ceiving Pony to any person or party not authorized under this Protective i Order, then the Receiving Party shall: use its best efforts to obtain the return of any such CONFIDENTIAL INFORMATION and to bind such person to the terms of this Protective Order; within three (3) business days of the discoVery of such disclosure, inform such person of all provisions of this Protective Order; within ?ve (5) business days of the discovery of such disclosure, identify such person to the Producing Party; and request such person to sign the Agreement To Abide By Protective Order in the form attached hereto as Exhibit A. The executed agreement shall be served upon counsel of record for the Pro ducing Parry within ?ve (5) business days of its execution by the party to INFORMATLON was disclosed. I Nothing in this paragraph is intended to limit the remedies that the Producing Party. or any person whose TNFORMATION was disclosed, may pursue for breach of this Protective Order. 15. Nothing in this Protective Order shall require disclosure of information or provide a . basis to refuse disclosure ofhtfonuation. 16. lf information subject to a claim ofattomey-client or taxpayer-con?dentiality pritrilege or work-product immunity is inadvertently or mistakenly produced, such production shall in no way prejudice or otherwise constitute a waiver of, or esteppel as to any claim of privilege or immunity for such information. If a party has inadvertently or mistakenly produced information subject to e. claim of immunity or privilege, upon request made by the Producing Party within seven (7) business days of discovery ot?Such inadvertent or mistaken production, or entry cfthis Order, the infonnation for which a claim of inadvertent production is made shall be returned within three (3) business days of? such request and all copies of any inadvertently or mistakenly produced document 8 PROTECTIVE ORDER .. Colantuono 8: Levin. PC H3543 PLEASANI VALLEY ROAD PENN VALLEY. CA 9?3946-?5?008 1232633 shell be destroyed. The party returning such information may move the Court for an Order compelling production ofsuoh information. Nothing in this Stipulation is intended to operate as a waiver ofany claim of privilege or immunity or to concede that any matter as to which privilege is asserted is, in fact, privileged. I I 7 W. The restrictions and obligations set forth in this Protective Order relating to CONFIDENTIAL shall not apply to any information which: is already public knowledge prior to the entry of? this Protective Order; has. become or becomes public knowledge other than as a result of disclosure in violation of this Protective Order; or is in the: Receiving Party?s possession independently of production from the Producing Party. The restrictions and obligottons under this Protective order shall not prohibit discussions with any person of CONFIDENTIAL WFORMATION ifthat person already possesses the CONFIDENTIAL INFORMATION and is not otherwise bound to maintain such information as con?dential. 16. The Proteotive Order shall not prevent any pony ?'om applying to the Court for relief therefrom or modi?cation thereof, or from applying to the Court for ?mhor or additional protective orders. 19. This Proteotive Order shall survive the termination of this action. After final termination of this action, the (20me designated in Paragraph 5(a) hereof for-the Receiving Party may each retain one archival co py of deposition exhibits, Court exhibits, documents and other materials submitted to the Court, deposition transcripts and transcripts ofeourr proceedings, one cop or sample of the CONFIDENTIAL INFORMATION produoed by opposing counsel for refer-o nee in the event of a dISpute over the use or dissemination of information, and CONFIDENTIAL INFORMATION to the extent it included or re?ects an attorney?s work produCt. Such material shall continue to lie-treated as CONFIDENTIAL INFORMATION under this agreement. After ?nal termination of this aetionrcounsel for the Receiving Party either shall return all additional CONFIDENTIAL moons/inmost in his possession, comedy 0} control or in the custody of any authorized agents, outside moons and consultants retained or utilized by counsel for the Receiving Party to onuosel For the party who has provided soch CONFIDENTIAL INFORMATION to discovery or shell certify destruction thereof to such oomsel. 9 PROTECTIVE ORDER Colantunna a: Levin PC -1 1:154 PLEASANT mun R083 1232518 PENN VALLEYGOOD CAUSE APPEARING, 11" 15 so ORDERED. my a Honorable Jl Wohlfeil Judge ofthe Superior Court 10 PROTECTIVE ORDER -- Inm?. . EXHIBIT San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions KPBS Page 1 of 6 San Diego Attorney Cory Briggs? Land'Deals Raise Ethical, Legal Questions Tomorrow: Investigation by inewsource examines issues surrounding Briggs? environmental lawsuits Monday, February 23, 2015 By Brad Racino inewsourc'e and Brooke Williams inewsource Photo by Roland Lizarondo Attorney Cory Briggs speaks to inewsouree, Feb. 11, 2015. For years, Cory Briggs, a high-profile San Diego lawyer and a key figure in the resignation of former Mayor Bob ilner, has engaged in real estate transactions that a host of expeits say are questionable and possibly fraudulent. - inewsource followed millions of dollars of his land deals through four Southern California counties to be met with slammed doors, a threat to call the police and a strange hand?delivered letter, saying there was no payoff to get rid of Filner, who resigned in 2013 amid a sexual harassment scandal. inewsource also discovered Briggs had sold his home for about half its worth to a corporation he controls. 2/ 23/201 5 7 San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions I KPBS Page 2 of 6 These types of transactions are ?never done in honest business dealings,? said William Black, a white- collar criminologist and former bank regulator who testi?ed before Congress about the Lehman Brothers collapse. irzewsource asked Black and other experts to review public records of Briggs? land deals, in particular two $1.5 million deeds of trust made on the same day in 2013. Briggs and his law ?rm entered into the deeds with four members of the same family. The deeds were secured by houses worth a fraction of that cost, without listing a title company. - don?t think he?s going to want the Bar to learn about these things,? Black said. A puzzling letter Credit: William Black Professor William K. Black teaches economics and law at the University of Missouri w- Kansas City. He researches white?collar crime and testified in front of Congress about the Lehman Brothers coilapse in 2010. Since at least 2007, the Briggs Law Corp. has been entering into deeds of trust liens against a property typically in exchange for loans with people in Riverside, San Bernardino, Ventura and Los Angeles counties for as little as $15,000 and as much as $1.5 million. Briggs? largest liens, totaling $3 million, were made on Aug. 28, 2013 ?ve days after Filner announced his resignation by members of the Wol?nbarger family in Diamond Bar and Chino, a little more than 100 miles northwest of San Diego. The liens were worth nearly three times the value of the homes, according to data from Zillow and Homesnap. One house was worth about $679,000 at the time; the other currently is valued at about $378,000. 2/23/2015 San Diego Attorney Cory Briggs? Land Deals Raise'Ethical, Legal Questions I KPBS Page 3 of 6 LEARN MORE: See the original documents behind each sentence inewsource asked Briggs? about the deeds of trust, and mentioned the proximity to Filner?s resignation announcement. But Briggs shut down the interview on Feb. 11 and threatened to call the police if reporters didn?t leave his of?ce. - ?This stuff is not an issue,? Briggs said, adding he would respond to inewsource?s story after publication. The reporters immediately headed north to Chino .to interview Randy Wol?nbarger, who slammed the door when asked about his lien for $1.5 million. His wife coming home from a trip to the store said ?he just briefed me 011 it earlier,? then ?no comment? and hurried inside. In nearby Diamond Bar, James and Barbara Wol?nbarger didn?t answer their door or a phone call that evening. T?wo cars were parked in the driveway. The lights were off in the house. inewsource left a copy of their $1.5 million lien on their door with a note requesting an interview. On Feb. 16, inewso urce received a letter from the Wol?nbargers with a puzzling claim: That an inewsource reporter had accused them of paying sOmeone to oust Filner from of?ce. The reporters who tried to interview the Wol?nbargers never mentioned Filner, according to video footage of the encounter, either in verbal questions to the family or in the note left with the deed of trust. Their letter was dropped off at KPB S, where fnewsource has its of?ce, by a woman who appeared to ha a Briggs employee. It read in part: - ?Brad Racine has repeatedly harassed us and other family members with the accusation that we paid an attorneymillions of dollars to get rid of San Diego mayor Bob Filner and made impolite demands that we talk with him about this absurd theory. For the record, we do not even know who Mr. Filner is. We did not pay any person to get rid of him or the mayor of any other city for that matter.? Makingcontact inert/source found eight deeds of trust between the Briggs Law Corp. and borrowers the earliest from 2007 for a total of $3 .8 million. Two more deeds involve Briggs? personal LLC but not his law corporation. I . . Of the eight deeds involving Briggs? law ?rm,?ve list a title company such as First American or Fidelity National as a trustee. Of the other three, one lists Karin Langwasser as trustee, and the other two the ones for $1.5 million list ?Cory J. Briggs? as trustee. inewsource attempted to interview all of the borrowers. Two did not return multiple phone calls or emails, another two, the Wol?nbargers, would not talk about the liens. The ?fth and sixth?s phone numbers couldn?t be located, but inewsource found one of them, Andrew Levy, was a defendant in a 2007 lawsuit in which Briggsrepresented the plaintiff. Levy?s $15,000 deed with the Briggs Law Corp. was ?led the same day as an amended court complaint. The seventh?s bookkeeper said that the lien was a guarantee for a $75,000 payment regarding a lawsuit Briggs ?led against her company, but declined to speak further about it. f?They don?t want anybody pulling on the threads here,? said Black, the white?collar criminologist, when 1 2/23/2015 I Nisbet said, in her case, no money changed hands in the deed, but she might have paid Briggs for his San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions KPBS Page 4 of 6 told the total number of deeds. ?This is how you end up naked.? The eighth said that the. $200,000 recorded on the deed never actually changed hands, and that she barely knew Briggs. think we contacted him because we were trying to protect our assets in looking at a potential lawsuit,? said Marlene Nisbet. Nisbet and her husband were named as defendants in a personal injury lawsuit ?led about one month prior to her deed with Briggs. She said she couldn?t remember the details and was unaware that there was a $200,000 lien on her house. inewsource obtained the deed, which says the ?debt? is ?due and payable on conclusion of bene?ciary?s representation of A possible explanatiOn, according to Black and other experts interviewed, is that the liens were used to protect Nisbet?s assets from the creditors in her lawsuit. They said this scenario would not be legal. ?I?m certainly scratching my head wondering why someone would set themselves up for the kind of scrutiny that this would bring,? said Jonathan Arons, a defense attorney for laWyers, who has more than 30 years of experience in legal ethics. ?What do you hope to gain from this?? Arons said. This is how a typical asset protection scheme works, they said: Jane owes a lot of money to a creditor after a lawsuit or bankruptcy, for example and that creditor wants repayment in the form of Jane?s home. But Jane has already entered into a fake deed of trust with someone, so it appears as if the house is encumbered, or underwater. Because the house isn?t worth much of anything, the creditor might leave it alone. Eventually, the lending party lifts the fake deed from ane?s property so it is no longer underwater. legal services. She said she doesn?t remember. The Briggs Law Corp. lists ?asset protection? as a serviCe for its clients on its website. That?s unusual for a law ?rm to advertise, Black said. Asset protection, he said, includes such things as advising a client to create a family trust or a corporation, or to buy real estate somewhere else, ?so they can?t go after your debts.? It?s best to advise before the client is already in trouble, he said, adding ?They?re a law ?rm, they give advice on asset protection they don?t actually do the deals themselves.? Ed McIntyre, a legal ethicist and a former member of the California State Bar Committee on Professional Responsibility and Conduct, agreed. law ?rm is in the business of the practice of law and it should not be using its law firm name and license and whatever status being a law ?rm gives you to be lending money,? McIntrye said. ?You?ve got a pattern thatI think would get somebody?s attention,? he said, ?whether it?s a prosecutor, investigator or somebody at the state Bar who may want to know ?Why is this quasi-public interest law ?rm lending out all this ?There may be a legitimate reason for it,? McIntyre said, ?but what?s it all about?? 20 1 5 /feb/23/san?die go-attomey-cory?bri gs?land-deals-raise-et/ . .. 2/23/2015 San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions KPBS Page 5 of 6 The West End Executives Association One connection inewsource found between Briggs and several borrowers was a business group called the West End Executives Association, a llOllpl?O?t ?dedicated to. increasing our business success by providing referrals? to members. Its website says the association is part of a network of 90 sister organizations operatingin major cities in 18 countries, and they typically meet for breakfast at a Holiday Inn in Ontario. One current executive board member and two past presidents of the association, including James ?Butch? Wolfmbarger, appear on deeds of trust connected to Briggs Law Corp. - Briggs has been a member since 2002, according to the group?s Facebook page. He was president for six months in 2005, according to the website. A Jan. 14 post on the group?s acebook page, accompanied by a photo of Briggs at a podium, states, ?Briggs Law Corporation specializes in business law for small, family?owned businesses. Services include formation of corporations and LLCs, negotiation of commercial contracts, asset protection strategies, estate planning and trust administration Many members have attested to the services received by Cory and his firm, who are always available to give advice, and solve problems when needed.? One last puzzle Briggs? home in San Diego also baf?ed experts. He purchased it for $1.49 million in 2010 without recording a deed of trust for the property at the San Diego County assessor?s of?ce, said Sharon'Ferguson, the office?s assistant division chief. A little more than two years later, he sold it to TYL Enterprises, a corporation formed in Nevada, for $725,000. According to the Nevada secretary of state?s website, Briggs serves as president, secretary, treasurer and director, and represented the company in court over a breach of contract dispute in 2010. No experts interviewed could suggest a logical explanation for taking such a loss on the home. inewsource repeatedly asked Black if there was any sensible explanation for its findings. he said. ??And if there is, these folks could provide it.? Overall, Black said, ?the deals make no sense as economic matters, and it?s not even close.? ?It?s not a matter of judgment. It?s just: no, no no,? he said. Brooke Williams is an inewsource correspondent and journalism fellow at Harvard University. Follow her on Twitter @reporz?erbrocke 1 .. 2/23/2015 San Diego Attorney Cory Briggs? Land Deals Raise Ethical, Legal Questions 1 KPBS Page 6 of 6 BRAD Investigative Reporter inewsource Contact brad-racino Follow @bradracino on Twitter Brooke Williams inewsource - Related Content Bill Horn's Basic Faith May 22, 2014 What You Can Find Out About A Person At Assessor/Recorder?s Of?ce February 10, 2014 San Diego Mayoral Candidates' Personal Finances February 6, 2014 Please stay on topic and be as concise as possible. Leaving a comment means you agree to our Community Discussion Rules. We like 01V1lized discourse. We don't like Spam, lying, profanity, harassment or personal attacks. comments poweredlby Disqus 2/23/2015 EXHIBIT San Diego Attomey?s Environmental Lawsuits Could Be Tainted By Con?ict Of Interest Page 1 of 7 San Diego Attorney?s Environmental Lawsuits Could Be Tainted By Con?ict Of Interest Tuesday, February 24, 2015 By Brad Racine inewsource and Brooke Williams inewsource Photo by Katie Schoolov? Attorney Cory Briggs speaks to KPBS news about the San Diego Convention Center, Jan. 8, 2015. A few minutes before 3 pm. on Feb. 11, Cory Briggs, a well-known San Diego environmental lawyer, walked into his of?ce for an interview with inewsource. He placed his large, iced drink and cellphone on the conference table. A pile of documents rested in a corner of the room. Guitars, a dry?erase board and framed photos decorated the walls. As a Videographer for inewsource made final camera adjustments, one photo of Briggs and his Wife caught the attorney?s eye. He took down the picture. don?t put family on stuff,? he said. 2/24/2015 San Diego Attorney?s Enviromnental Lawsuits Could Be Tainted By Conflict Of Interest Page 2 of 7 That practice has proven successful. A review of a decade?s worth of news coverage about Briggs found no mention of his wife?s name. Similarly, news profiles of his wife didn?t mention him by name. But Sarichia ?Seekey? Cacciatore has shared a professional interest with her husband the environment. An inewsource investigation reveals she worked for a company, Helix Environmental Planning, that was involved in at least three cases on the other side of his lawsuits. Ed McIntyre, an attorney who currently devotes his practice to legal ethics and professional responsibility and was named one of San Diego?s top lawyers in 2014, said the arrangement raises legal and ethical questions. really think the situation just screams conflict of interest, not just for her but for him,? McIntyre said. ?It gives him entree into where they?re not complying, in a fashion that he really shouldn?t have.? The news suiprised San Diego business and government of?cials, as Well as legal ethicists, and is now of great interest to some who have been his biggest targets over the years. - San Diego City Attorney Jan Goldsmith, whose of?ce has defended against more than 50 Briggs lawsuits over the past decade, said he was concerned about z'newsource?s findings. ?Learning of this information from inewsourcef he said, have requested a full review of the city of San Diego?s use of Helix environmental.? A questionable arrangement Briggs has made a name for himself suing developers and government agencies from here to Los Angeles over alleged environmental violations, such as a sewage spill on Camp Pendleton in 2011. He also was among the first to publicly demand former-Mayor Bob Filner resign in 2013. His initial criticism conCemed Filner?s relationship with a developer Briggs was about to sue, not allegations of sexual harassment ultimately the reason Filner resigned. One of Brigg?s frequent legal targets is the Port of San Diego. Unbeknownst to the public agency, Brigg?s wife, Cacciatore, was listed as a project manager on a contract her employer, Helix, had with the port at the same time her husband was suing it over enviromnental matters. The contract stated that Helix would help in the ?preparation of environmental documents and technical studies to assist the District in meeting the mandates of the California Environmental Quality Act (CEQA Jonathan Arons has practiced law and legal ethics for more than 30 years, and defends lawyers in disciplinary proceedings. He shared his opinion of the Briggs-Cacciatore professional relationship with inewsource. i . ?It certainly raises an eyebrow or two. Or twelve,? Arons said. think you?d have to be blind not to think that there?s something going on,? he said. ?The only queStion is whether or not it violates any requirements of disclosure. If he?s filing lawsuits and using inside information, then the question is: is he doing something illegal?? Arons said he would need more details to come to a conclusion. org/news/20 2/24/201 5 San Diego Attorney?s Environmental Lawsuits Could Be Tainted By Con?ict Of Interest Page 3 of 7 John Bolduc, acting president and CEO of the port, was surprised to learn of the professional connection between Briggs and his wife and said his staff is looking into it. A port spokeswoman con?rmed Helix never disclosed a potential con?ict of interest in its agreements with the agency. Neither Briggs, his wife (through her attorney, Marco Gonzalez) nor her former employer would respond to questions about their relationships. . Briggs sued more than 20 municipalities and filed more than 100 lawsuits in the past decade, according to public records searches. ?egg r?pwm hag g??d For-months, inewsource has investigated his lawsuits and the aver: pr0jects his w1fe?s company was under contract to revrew. It found three environmental assessments, prepared by Helix during the time she worked there, for projects her husband took to court. Although she was a project manager for Helix and was the primary author on several reports, her name was not listed speci?cally on any of the three. Sunroad Harbor Island Hotei project and Genesis Solar projects Master Stormwater Maintenance Program 7 Regardless, McIntyre said, because Caccratore held a key position in the company, that is ?certainly a"pote11tial conflict that probably should havc been disclosed.? ?If she was privy to con?dential information about the jobs, by reason of her position, then you have the - same actual con?ict,? he said. . In addition to the three assessments, Helix did work for mere than a dozen government agencies Briggs has sued. San Diego County, one of those, hired Helix to write its manual on how to prepare environmental reports. A larger issue For much of the time Briggs has sued government agencies and developers in Southern California alleging CEQA violations, Cacciatore?s employer was on contract to help at least 15 of those same agencies comply with the same law. . - She was a project manager in biology resources at Helix, a consulting company based in La Mesa. She has worked on environmental impact reports (EIRs) for government agencies from San Ysidro to Escondido. Before that she was working as an environmental project manager for the City of Chula Vista. At the Port, Cacciatore is listed among key personnel in Helix?s as-needed contract to help ensure compliance with CEQA, a contract that started in 2009. inewsource found no EIRs for the port with Cacciatore?s name on them. None of the reports reviewed included names of Helix staff. Helix?s contract with the port lists Cacciatore?s rate at $105 an hour, and it outlines projects the port anticipated needing help with to comply with CEQA. Among them was the Sunroad Harbor Island Hotel and Port Master Plan Amendment, a project Briggs has sued over. 2/24/201 5 San Diego Attorney?s Environmental Lawsuits Could Be Tainted By Con?ict Of Interest Page 4 of 7 Helix was responsible for the air quality section of the report. In Briggs? complaint ?led against the port, he alleged the agency?s EIR ?fails to provide adequate identi?cation and analysis of the signi?cant adverse environmental impacts? of, among ?ve other topics, air quality. Dan Feldman, a vice president at Sunroad Enterprises, was surprised to learn of the potential connection. ?nd it tremendously interesting,? Feldman said. A lawyer for Sunroad' added that because the company is in litigation with Briggs over two projects, the Harbor Island Hotel included, that they could not comment further. Helix also provided ?impact analyses for proposed solar energy projects,? including the Solar Power and Genesis Solar Energy projects. In December of 2010, Briggs made those projects in Riverside County major components of a lawsuit he ?led against the US. Department of the Interior and federal Bureau of Land Management. Helix provided biological support for that project. In that lawsuit, Briggs represented a nonpro?t called La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee, a group that is not registered with the California Secretary of State?s Of?ce or the state attorney general?s registry of charitable trusts, according to representatives for those agencies and to extensive online searches. La Cuna isn?t registered with the Internal Revenue Service, either, according to the website. Unknowns In response to a request for communication between the port and Cacciatore, inewsource received several email chains sent between June 2009 and February 2014. None involved projects on which Briggs sued, although he was copied on one email. That email was social in nature and addressed 24 people, including local politicians, lawyers and a member of the media." It was sent on Feb. 4, 2014, using Cacciatore?s Helix email address. As far back as 2011, Cacciatore had a registered email address with the Briggs Law Corp. seekey@briggslawcorp.com. . - Helix?s CEO, Michael Schwerin, responded to questions at ?rst, but did not reply to phone messages or emails after that. One question asked of Schwerin was when Cacciatore left the company. Her Link'edln pro?le states she stopped working for. Helix in 2011. In 2012, she was no longer on the list of key personnel in the port contract. In March 2014, she was listed as one of two authors of a Helix biological review for Orchard Hills, a planned residential development near San Marcos. inewsource asked Schwerin for a comprehensive list of Cacciatore?s work. He did not respond. Briggs and Cacciatore responses Briggs stopped his interview with inewsource once questions arose concerning his business practices. He said the basis for the interview was misrepresented, and he refused to answer any questions about his wife. 2/24/2 01 5 San Diego Attorney?s Environmental Lawsuits Could Be Tainted By Conflict Of Interest Page 5 of 7 ?We also have questions about your wife and her business working for Helix,? a reporter asked. ?I?m sure, that?s ?ne, have ?a nice day,? Briggs replied. The next day, inewsouree received. an email. from Marco Gonzalez, a lawyer who, along with Briggs, is an environmental attorney and played a key role in the call for Filner?s resignation. "While Mr. Briggs ?s [sic] wife is quite cory?ident she has done nothing wrong, I write to remind you that unlike her husband she is not a public figure or even a quasi-publicfigure. Indeed, she is an entirely private ?gure. If you have any questions regarding her private-figure status, please do not hesitate to contact me. inewsource submitted a list of questions for Cacciatore by way of Gonzalez on Feb. 13, and received a response on Feb. 18. It began: ?Either you have been fed inaccurate information designed to damage Ms. Cacciatore, or you have determined yourself to use false accusations to link unrelated facts in an e??ort to fabricate a story where one does not either event, publication based upon unsupported speculation would severely damage my client?s reputation and career. urther, your list of leading questions attacks the . professionalism of not only my client, but also of a company and the many professionals within it. Those - persons have been advised accordingly. Gonzalez wrote that his communication with inewsource was ?off the record? an arrangement inewsource never agreed to and demanded that if that request was ignored, that the email be published in full. It can be found here. ?Reasonable due diligence with independent third parties would readily establish that the con?ict of interest you are racing to uncover simply does not exist,? Gonzalez wrote. He did not answer any of the questions posed. ?Please proceed at your own risk,? he wrote. Reactions Commenting on Briggs? and Cacciatore?s professional relationship, legal ethicist McIntyre said, ?il suspect that if this was revealed to the lawyers representing the port, they?d say there was no way they could have known this. Because it just wouldn?t have been obvious.? He?s right. Bolduc, the port?s acting president and CEO, was surprised to learn of the connection between Briggs and Cacciatore and said his senior staff had no knowledge of it. ?That?s not something that anybody would have thought to look into, or guess would be a factor, in awarding these contracts,? he said. ?Depending on what we learn, we?ll certainly evaluate to see if there are any safeguards we can build into our systems.? Greg Shields, chief executive of Project Design Consultants, an engineering company that works with 5/ feb/ 24/ 2/24/2015 San Diego Attorney?s Enviromnental Lawsuits Could Be Tainted By Con?ict Of Interest Page 6 of 7 Helix and has been deeply involved-in projects for the port and city of San Diego, said he did not know about Briggs? wife. Shields said Helix does ?lots and lots of environmental documents that touch many projects,? and it ?seems like there might be an opportunity for him to get inside information.? ?It puts the document in question,? he said. Shields said when Project Design works with Helix, which acquired its environmental division in 2007, he doesn?t know the names of all personnel. There is a chance Cacciatore worked on the same projects as his company, he said, but he doesn?t have ?any concemsabout any work that we?ve ever done.? A bright line The repercussions for Briggs would depend on what, if any, information he learned from his wife that could aid in his lawsuits, McIntyre and Arons said. ?If the port could contend that she was privy to confidential information, and it was being passed on, he would be disqualified from his lawsuit,? McIntyre said. ?It?s a bright line in California that you cannot get your hands on the other side?s information.? . When asked how it could affect cases already settled, he paused. ?No court has had to grapple With that yet,? McIntyre said. He suggested a court could order a lawyer to pay back the fees earned as a result of a lawsuit. - can see a cOurt going there,? he said. Arons, the other ethicist, said there were so many issues to consider, and so many unknowns, that he couldn?t say whether Briggs? actions could be unethical, but that ?there?s certainly a lot of smoke.? ?This raises enough questions that somebody better be checking this out,? he said. Brooke Williams is a journalism fellow at Harvard University and an iriewsource correspondent. Follow her at @reporl'erBrooke on Twitter. BRAD RACING, Multimedia-Based Investigative Reporter inewsource Contact bra.d.~ra.cino Follow @bradracino on Twitter Brooke Williams inewsource Please stay on topic. and be as concise as possibie. Leaving a comment means you agree to our Community Discussion 2/24/201 5 San Diego Attorney?s Environmental Lawsuits Could Be Tainted By Con?ict Of Interest Page 7 of 7 Rules. We like civilized discourse. don?t like Spam, lying, profanity, harassment or personal attacks. comments powered by Disqus 1 5/feb/24/ san-die 2/24/201 5 From: Brad Racino fmailto:bradracino?qmaiLcoml Sent: Monday, February 23, 2015 2:13 PM To: Braun, Gerry Subject: amended PRA inewsource Feb 23, 2015 Good afternoon Gerry, Please ignore my prior request, nor-simply amend it, include more language: Pursuant to the state open records law, Cal. Gov?t Code Secs. 6250 to 6277, I write to request digital copies of: 1. Any and all San Diego City Attorney of?ce communication or documents (emails, faxes, papers, memos, etc) involving or mentioning: ?Cory Briggs,? ?Cory J. Briggs,? "Seekey Cacciatore,? "Sarichia Cacciatore,? "Helix. environmenta or ?Helix? since I an. 1, 2010. Please check the following email addresses, as well: 'corv@briggslawcorp.com, seekevc@helixepi.com, seekev@briggslawcorp.com. As provided in the Open records law, See. 6253(6), I will expect your response within ten (10) business days. Please advise me of the cost prior to compiling any documents. If you choose to deny this request, please provide a written explanation for the denial including a reference to the speci?c statutory exemption(s) upon which you rely. Also, please provide all seg?regable portions of otherwise exempt material. Thank you very much for your help and assistance with this matter. Brad Racino Investigative Reporter nmwvinews?ourcecrg 845.553.4170 0 619.594.3569 @bradracmc EXHIBIT THE CITY OF SAN DIEGO MEMORANDUM DATE: February 24, 2015 TO: Scott Chadwick, Chief Operating Officer FROM: - Kris McFadden, Director, Transportation Storm Water Department SUBJECT: Helix Environmental Planning, Incorporated The Transportation Storm Water Department (Department) has engaged with Helix Environmental Planning, Inc. (Helix) on two as-needed environmental contracts in recent years. Please note that this memo only discusses the contract history of the Department. Helix may have contracts with other City Departments. Under the first contract Helix was the Department?s main consultant in the development of the Storm Water Master System Maintenance Pro gram (MMP) and Program Environmental Impact Report (PEIR). This contract, which was amended twice, was from 2004 2012 with a total value of $17.4 million. Cory Briggs represented one of the plaintiffs in the lawsuit challenging the PEIR, San Diegansfor Open Government er al. v. City ofSan Diego, San Diego Superior Court Case No. 37-2011-00151'71. In 20} 3, the City and the plaintiffs entered into a settlement agreement that required modifications to the project and payment of attorneys? fees. In November 2013, the City Council authorized award and execution of the second as-needed environmental contract with Helix after a competitive request for proposals process. The contract is for a term of five years and an amount not to exceed $7.5 million. Under this contract, Helix is assisting the Department with environmental permitting related to the MMP and PEIR for. storm water channel maintenance. Please contact me at (619) 236-6594 if you have any questions. MN MW Kris McFadden cc: I an I. Goldsmith, City Attorney- Stacey LoMedico, Assistant Chief Operating Officer Heather Stroud, Deputy City Attorney Drew Kleis, Deputy Director, Storm Water Division Brock, Carmen From: Brock, Carmen Sent: Tuesday, February 24, 2015 12:12 PM To: 'Cory Briggs'; 'Jennifer L. Pancaket Cc: 7 Ryan T. Dunn; 'Len P. Aslanianr Subject: Notice of Ex Plarte Hearing SDOG v. City of San Diego (TMD) Mr. Briggs, Please take notice the City of San Diego has set an ex parte hearing for Thursday February 26, 2015, at 8:30 am. in Department 73 to request the court remove the Confidential designation to the deposition transcript Member 4 as allowed by Paragraph 9 ofthe Protective Order in this action. Pursuant to our conversation this morning, it 'is my understanding SDOG will oppose the City?s ex parte application and will appear at the hearing. Please let me know ifl am in any manner mistaken. i will include this representation in my supporting declaration. Thank you. Carmen Brock, DCA Carmen A. Brock Deputy City Attorney Land Use Litigation Unit Civil Division Office of the City Attorney City of San Diego 1200 Third Street, Suite 1100 San Diego, California 92101 PLEASE NOTE: This email is for the sole use ofthe intended recipient(s) and may contain information protected by the ATTORNEY- CLIENT and/or by the ATTORNEY WORK PRODUCT DOCTRINE. The contents of this email may include confidential and/or inside information and may be legally privileged or protected and should not be communicated to or relied upon by any person without express consent of the sender. lfyou are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downioading, or copying of this communication is strictly prohibited and may be unlawful. lfyou have received this email in error, please immediately notify the sender by reply email, delete the original communication, and destroy all copies. Confidential Information Lodged Conditionally UnderSeal Pursuant to Protective Order JAN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney CARMEN A. BROCK, Deputy City Attorney (CSBN 162592) Of?ce of the City Attorney Civil Division 1200 Third Avenue, Suite 1620 San Diego, California 92101 Telephone: (619) 23 6-6220 Facsimile: (619) 23 6-7215 Attorneys for Defendant City of San Diego SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO DECLARATION OF SERVICE Case No. San Diegans for Open Government v. City of San Diego, et a1. Judge: Joel R. Wohlfeil/Dept. 73' EX Parte: Feb. 26, 2015 at 8:30 am. GED 1, the undersigned 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 San Diego, California, in which county the Within-mentioned service occurred. My business address is 1200 Third Avenue, Suite 1100, San Diego, California, 92101. I served the following document(s): 1. CITY OF SAN EX PARTE NOTICE AND APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT EXHIBITS 2. DECLARATAION OF CARMEN A. BROOK, DCA IN SUPPORT OF CITY OF SAN EX PARTE APPLICATION TO REMOVE TRANSCRIPT FROM RESTRICTIONS OF PROTECTIVE ORDER I 3. CITY OF SAN NOTICE OF LODGMENT AND LODGMENT OF DOCUMENTS IN SUPPORT OF EX PARTE APPLICATION CONDITIONALLY UNDER SEAL PURSUANT TO PROTECTIVE ORDER Cory J. Briggs, Esq. Mekaela M. Gladden, Esq. BRIGGS LAW CORPORATION 99 East Street, Suite 111 Upland, CA 91786 Telephone: (909-949-71 15 . Facsimile: (909) 949-7121 corv@briggslawcorp.com Attorney Plaintiff and Petitioner San DiegansforOpen Government Michael G. Colantuono, Esq. Jennifer L. Pancake, Esq. Ryan Thomas Dunn, Esq. COLANTUONO, HIGHSMITH WHATLEY, PC 300 South Grand Avenue, Suite 2700 Los Angeles, CA 90071 Tel: (213) 542?5700 Fax: (213) 542-5710 RDumi@chwlaw.us Attorney for Real Party in Interest San Diego Tourism Marketing District (BY MAIL I served the individual(s) named by placing a true and correct copy of the documents in a sealed envelope and placed it for collection and mailing with the United States Postal Service this same day, at my address shown above, following ordinary business practices. 1 (BY FAX 1013(e); CRC Rule 2008]) On I transmitted the above?described documents by facsimile machine to the fax number(s) set forth above or as stated on the attached service list. The transmission originated from facsimile phone number (619)533?5535 6 and was reported as complete and without error. The facsimile machine properly issued a transmission report, a copy of which is attached hereto. XX ELECTRONIC SERVICE 1010.6]) I caused to be served by electronically mailing a true and correct copy through electronic mail system to the e-mail addressee(s) set forth above, or as stated on the attached service list per agreement in accordance with Code of Civil Procedure section 1010.6. (BY ELECTRONIC SERVICE) By submitting an electronic version of the document(s) to One Legal, LLC through the user interface at (BY OVERNIGHT DELIVERY 1013]) I served the individual(s) named by placing a true and correct copyof the documents in a sealed envelope(s) to be delivered overnight via an overnight delivery service in lieu of delivery by mail to the addressee(s) listed above, or as stated on the attached service list: (BY PERSONAL SERVICE 1011]) I served the individual named by personally delivering the copies to the of?ces of the addressee. Time of delivery: a.1n./p.m. Person served: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 25, 2015, at San Diego, California. oz; Merlita S. Rich