790 E. Colorado Boulevard, Suite 850 Pasadena, CA 91101-2109 Voice (213) 542-5700 Fax (213) 542-5710 Ryan Thomas Dunn (213) 542-5717 RDunn@chwlaw.us Our File No. 49052.0007 December 18, 2017        Hon. Douglas P. Miller, Acting Presiding Justice     Hon. Carol D. Codrington, Associate Justice  Hon. Marsha G. Slough, Associate Justice  Fourth District Court of Appeal, Division Two  750 B Street, Suite 300  San Diego, California 92101    Re:  Request  for  Publication  of  Creed‐21  v.  City  of  Wildomar  (Wal‐Mart)  (Case No. E066367) (filed Nov. 28, 2017)  Honorable Justices:  Pursuant  to  rules  8.1105  and  8.1120  of  the  California  Rules  of  Court,  the  San  Diego  Tourism  Marketing  District  Corporation  (“TMD”)  writes  to  request  the  Court  order  publication  of  its  opinion  in  Creed‐21  v.  City  of  Wildomar  (Wal‐Mart)  (Case  No.  E066367) (Creed‐21), filed November 28, 2017.  TMD  is  a nonprofit,  mutual‐benefit corporation that  administers funds the  City  of San Diego collects from an assessment on hotels to benefit those hotels by collective  marketing. TMD provides a private, nonprofit funding vehicle that stimulates the City  of  San  Diego’s  hotel  demand  through  tourism  promotion,  marketing  and  advertising  programs. As a charter city, the City of San Diego has authority to impose an assessment  on hotels; other cities assess hotels to fund collective tourism marketing efforts pursuant  to  the  Property  and  Business  Improvement  District  Law  of  1994  (Sts.  &  Hy.  Code,  § 36600 et seq.).  Three lawsuits — two still pending on their merits — challenged the City of San  Diego’s renewal of its tourism marketing district assessment in 2012 and its revision in  2016.1 A plaintiff in one of these lawsuits, San Diegans for Open Government (“SDOG”),                                                     All three are currently on appeal in Division One of this Court: San Diegans for Open Government v. City of  San Diego et al. (case D072181, filed Apr. 26, 2017) (SDOG); Reid et al. v. City of San Diego (case D072493,  1   188355.3   Fourth District Court of Appeal  December 18, 2017  Page 2      is represented by Cory Briggs and Briggs Law Corporation, counsel for Creed‐21 in this  matter; Mr. Briggs was the founding Chief Executive Officer of the plaintiff in a second  case.  At  issue  in  all  three  cases  is  whether  a  plaintiff  must  show  he  bears  the  legal  burden to pay a revenue measure to have standing to challenge it. TMD therefore has  an especially acute interest in Creed‐21, which provides trial courts and the bar guidance  on discovery into standing issues.  The Opinion merits publication for at least three reasons.   First,  it  addresses  the  trial  court’s  discretion  to  order  issue  and  terminating  sanctions  for  discovery  abuses,  a  topic  for  which  there  is  little  case  authority.  Creed‐21  thus  “applies an  existing  rule  of  law to a set of facts  significantly  different  from those  stated  in  published  opinions,”  and  is  “a  legal  issue  of  continuing  legal  importance.”  (Cal. Rules of Court, rules 8.1105(c)(2) and 8.1105(c)(6).)  Second,  Creed‐21  addresses  discovery  into  a  petitioner’s  standing  in  cases  resulting  from  administrative  proceedings,  for  which  there  is  “[n]o  express  provision  allowing  discovery” and  for  which post‐hearing discovery is  “limited.” (Pomona Valley  Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102, citations omitted.)  Our  Supreme  Court  raised  the  possibility  of  such  discovery  but  left  the  issue  unresolved.  (Western  States  Petroleum  Assn.  v  Superior  Court  (1995)  9  Cal.4th  559,  575,  fn. 5.)  As such, there are few cases applying the Civil Discovery Act (Code Civ. Proc.,  § 2016.010  et  seq.)  in  similar  contexts,  and  Creed‐21  therefore  provides  guidance  to  courts  trying  similar  cases  regarding  the  appropriate  scope  of  discovery  and  their  authority to issue terminating sanctions where appropriate. Indeed, Creed‐21 sought a  writ  of  mandate  from  this  Court  on  this  very  topic  (Slip  Op.,  p. 9),  suggesting  further  guidance here would benefit both those who seek discovery and those who oppose it.  Third,  Creed‐21’s  analysis  of  the  “willfulness”  requirement  for  terminating  sanctions  (Slip.  Op.,  pp. 17–20)  similarly  merits  publication  because  it  clarifies  …  an  existing  rule  of  law”  that  is  of  “continuing  legal  importance.”  (Cal.  Rules  Court,  rules  8.1105(c)(3),  8.1105(c)(6).)  Creed‐21  also  criticizes  published  authority  that  requires  a                                                                                                                                                                    filed May 24, 2017) (Reid); and California Taxpayers Action Network v. City of San Diego (case D072987, filed  Sept. 8, 2017) (CTAN). SDOG is an appeal of post‐judgment orders only; Reid and CTAN are appeals from  judgments of dismissal.     188355.3   Fourth District Court of Appeal  December 18, 2017  Page 3      showing  of  “bad  faith”  conduct  to  impose  terminating  sanctions  and  explains  this  authority is inapposite because it pre‐dated the Civil Discovery Act. (Slip. Op., p. 20.)   As the Opinion notes (Slip Op. at p. 11), the Briggs Law Corporation, counsel for  Creed‐21, has filed over a hundred lawsuits across California using what are alleged to  be  shell  corporations  to  challenge  government  actions,  from  CEQA  approvals,  as  in  Creed‐21, to municipal finance matters, such as in TMD’s case. Like Wal‐Mart here, TMD  sought discovery into whether SDOG, which claimed to be a membership organization,  included  a  member  who  paid  the  assessment  it  would  challenge,  as  required  for  associational  standing.  (Torres  v.  City  of  Yorba  Linda  (1993)  13  Cal.App.4th  1035,  1043– 1044; Inland Oversight Committee v. City of Ontario (2015) 240 Cal.App.4th 1140, 1145, fn. 4  [voters and residents who did not directly pay similar tourism assessment lack standing  to challenge it]; see Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 271 [“Valid fees do  not become taxes simply because their cost is passed on to the ratepayers.”].) Like Wal‐ Mart,  Briggs  Law  Corporation  similarly  stymied  TMD.  SDOG  claimed  Richard  Lawrence and Karin Langwasser, Mr. Briggs’s cousin, as members, just as Creed‐21 does  here. (Slip Op., p. 11.) Like Creed‐21 (id. at p. 15), when the SDOG trial court awarded  monetary  sanctions  for  SDOG’s  discovery  abuses,  SDOG  claimed  an  inability  to  pay  them.  Creed‐21’s  explanations  for  its  claimed  inability  to  respond  to  Wal‐Mart’s  discovery  requests  are  notably  similar  to  those  SDOG  gave  TMD.  Here,  Creed‐21  resisted a deposition on its standing claiming first a family emergency and then that Mr.  Briggs  needed  to  care  for  one  of  his  parents  for  three  weeks  (Slip  Op.,  pp. 8,  9,  10),  agreeing to a deposition only the day before Wal‐Mart’s trial brief was due (id. at p. 13).  The trial  court here considered  Creed‐21’s actions  to  be “a  calculated attempt to delay  and  to  avoid  a  deposition[.]”  (Id.  at  p. 14.)  In  SDOG,  among  several  other  successful  discovery  motions,  TMD  moved  for  terminating  sanctions  for  SDOG’s  failure  to  turn  over  a  list  of  members  it  alleged  provided  standing,  as  to  which  the  trial  court  had  issued an order to compel. In opposing the motion, Mr. Briggs and SDOG claimed Mr.  Briggs’s paralegal was unable to serve the revised responses because her grandmother  had  to  undergo  emergency  surgery;  Mr.  Briggs’s  associate  was  unable  to  provide  the  responses  because  her  aunt  passed  away;  and  Mr.  Briggs’  parents’  house  had  suffered    188355.3 Fourth District Court of Appeal December 18, 2017 Page4 explosions, caught fire, and been rendered uninhabitable - all simultaneously. (Request for Judicial Notice, Exh. A at pp. 17 at 17; 20 at 114-5; 26 at 1112-13.2) Our court system, with its limited resources, relies on good faith conduct by those privileged to be members of the Bar. Thus, courts give counsel the benefit of the doubt when they ask for flexibility to be humane to lawyers and to avoid penalizing clients for lawyers' foibles. However, when members of the Bar exploit that assumption of good faith, the wheels of justice can grind to a halt. As the material submitted here shows, the advocate before the Court in the present case has a pattern of claiming what can politely be termed "shaggy dog stories." (Wikipedia, Shaggy dog story [as of Dec. 15, 2017].) Any of them is plausible - if sometimes only barely - but as a whole, they beg credulity. (Rex v. Smith (1915) 11 Cr.App.R. 229, 84 L.J.K.B. 2153 [the "Brides in the Bath" murder case).3) Granting this request to publish can assist counsel and clients confronted with this counsel and his tactics to persuade courts not to assume good faith, but to require some evidence of it should similar shaggy dog stories be told in the future. Indeed, publishing this case might - just might - make such stories less likely in the future. Respectfully, Ryan Thomas Dunn (SBN 268106) RTD:ar Enclosures: Motion for Judicial Notice Proof of Service TMD accompanies this Request for Publication with a motion for judicial notice of one of SDOG's pleadings in its case. TMD does not seek notice to establish the truth of these allegations - indeed, it does not credit them - but rather for the mere fact that SDOG, Mr. Briggs, and employees of his law firm made them. 3 The opinion is available here: [as of Dec. 15, 2017]. 2 188355.3 EXHIBIT A 111111 .1 1 2 3 4 5 BRIGGS LAW CORPORATION [FILE: 1593.13] Cory J. Briggs (State Bar no. 176284) Mekaela M. Gladden (State Bar no. 253673) Anthony N. Kim (State Bar no. 283353) 99 East “C” Street, Suite 111 Upland, CA 91786 Telephone: 909-949-7115 Attorneys for Plaintiff San Diegans for Open Government 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 SAN DIEGO COUNTY--HALL OF JUSTICE 9 10 11 12 13 14 15 16 17 18 SAN DIEGANS FOR OPEN GOVERNMENT, ) ) Plaintiff, ) ) vs. ) ) CITY OF SAN DIEGO; 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-NINE ) AND ONE-HALF YEARS, AND THE ) PRESCRIBING OF A METHOD FOR ) COLLECTION OF ASSESSMENTS, ) ) Defendants. ) 19 CASE NO. 37-2012-00088065-CU-MC-CTL ** IMAGED FILE ** PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS; OPPOSING DECLARATIONS OF PEDRO QUIROZ, JR., KERI M. TAYLOR, MEKAELA M. GLADDEN, JUDY M. BRIGGS, AND CORY J. BRIGGS; OPPOSITION EXHIBITS Action Filed: December 19, 2012 Department: C-73 (Wohlfeil) Hearing Date: March 28, 2014 Hearing Time: 9:00 a.m. 20 21 22 23 Plaintiff San Diegans for Open Government (“SDOG”) respectfully submits this brief in 24 opposition to the motion for terminating, issue, evidence and/or monetary sanctions by Defendant San 25 Diego Tourism Marketing District Corporation (“TMD Corp.”). 26 27 28 1 1 Stay out of our high desert. Come here again to cause trouble and you’re dead. 2 3 If you don’t back off the TMD, I’ll beat your f---ing ass so bad that even your mother won’t recognize your body. 4 5 I. INTRODUCTION 6 First things first. This motion is moot and should be denied. SDOG’s counsel told TMD Corp. 7 when it could expect to receive the revised responses, eventually serving them two days earlier than 8 promised and before learning that this motion had been filed. At appears that TMD Corp. filed this 9 motion prematurely and unnecessarily, in hopes of poisoning the well against SDOG. 10 SDOG and its counsel take the confidentiality of SDOG’s members seriously not as a plot to 11 avoid proving standing, but to protect people exercising their constitutional right to seek redress in the 12 courts from violent recriminations. Unfortunately, SDOG, its counsel, and its members have a history 13 of facing not merely threats of physical violence but actual physical harm. 14 Almost ten years ago, after SDOG’s counsel (working for another client) had filed a second 15 lawsuit against one of the world’s largest corporations, there was a break-in at his office in Upland. The 16 local police department investigated and found nothing. SDOG’s counsel hired retired Secret Service 17 and FBI agents to investigate and perform a cyber-security sweep. They discovered that someone had 18 put keystroke-tracking software on counsel’s computers, and that software allowed whoever installed 19 it to remotely and secretly monitor exactly what SDOG’s counsel’s office typed on its computers. 20 Briggs Decl., ¶ 3; Taylor Decl., ¶ 2. 21 A couple years later, SDOG’s counsel (working for yet another client) was suing the City of San 22 Diego and hundreds of housing developers for illegally converting apartments into condominiums 23 without complying with the California Environmental Quality Act. Following the close of a hearing 24 on numerous administrative appeals in the city council chambers, several developers entered the 25 elevator with SDOG’s counsel and threatened to “beat your ass into a bloody pulp if you don’t stop f--- 26 ing with us.” When SDOG’s counsel got off the elevator in the city hall lobby and immediately 27 reported the threat to the police officer there, the developers all denied that anything had been said and 28 the police officer indicated that there was no real threat because they said “if.” Briggs Decl., ¶ 4. P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 2 TO M OTION FOR S AN CTIO N S P AGE 2 1 A few years ago, SDOG’s counsel (again working for another client) filed a fraud lawsuit over 2 a real-estate transaction gone bad. During his deposition, the defendant stood up, leaned over the table, 3 and threatened to “f--- you up if you don’t stop asking these questions.” The court reporter was so 4 scared that she interrupted her transcribing to leave the room and call for help. The defendant calmed 5 down but promised SDOG’s counsel that “you’re gonna pay for this.” A few months later, SDOG’s 6 counsel’s house was vandalized in the middle of the night with red paint meant to look like a violent 7 murder had taken place there. The incident was reported to police but nothing came of it because the 8 culprit was unknown. One month later, after the house was re-painted, the same thing happened again, 9 only this time SDOG’s counsel was woken by the commotion outside, saw what was happening, and 10 ran after the culprit. Though she ultimately jumped into the get-away car without being apprehended, 11 SDOG’s counsel did get a good look at her and later picked her out of a line-up. However, the police 12 refused to arrest her because she had an alibi; her boyfriend, who matched the description of the driver 13 of the get-away car, said that both of them were at home in bed that night. Briggs Decl., ¶ 5; Ex. “A.” 14 In 2012, there were two incidents threatening death to SDOG’s counsel and one involving 15 physical violence toward one of its members. Shortly after filing a lawsuit against a big-box 16 development in Victorville, California, SDOG’s counsel received an anonymous letter consisting of 17 letters cut out of a magazine (the first quote above this brief’s Introduction). There was no return 18 address, and the postmark was smudged to the point of being illegible. The police said there was 19 nothing they could do. Briggs Decl., ¶ 6; Taylor Decl., ¶ 5; Ex. “B.” 20 Around the same time, at the close of a city hearing on the Tourism Marketing District tax 21 that is the subject of this lawsuit, a man in the audience (who had been sitting with supporters of the 22 tax) came up to SDOG’s counsel as he was getting on the elevator, with doors closing, and whispered: 23 “If you don’t back off the TMD, I’ll beat your f---ing ass so bad that even your mother won’t recognize 24 your body.” SDOG’s counsel did not report that statement to the police because this threat also 25 included “if,” and because the man did not speak in favor during the hearing and thus could not have 26 been identified in the hearing’s video archives. Briggs Decl., ¶ 7. 27 Also around the same time, in connection with one of the South Bay school-district bribery cases 28 that SDOG is litigating, one of its members was confronted at her home in the evening by someone P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 3 TO M OTION FOR S AN CTIO N S P AGE 3 1 working for the defendant public agency in the lawsuit. She was physically threatened and intimidated 2 for “stirring the pot.” Quiroz Decl., ¶ 3. 3 What’s worse--as if it could be worse--the City’s elected officials are totally untrustworthy when 4 it comes to people who disagree with them. When a city board refused to make a grant to an LGBT 5 organization favored by Council President Todd Gloria, he threatened to portray the board “as 6 discriminatory against this group in the press . . . and the ethics and integrity of the board would be 7 questioned.” Briggs Decl., ¶ 8; Ex. “C.” Meanwhile, City Attorney Jan Goldsmith bragged to the Los 8 Angeles Times about his “bluff” to get former mayor Bob Filner--Mr. Goldsmith’s own client--to resign, 9 by threatening not to indemnify him even though Mr. Goldsmith knew that the law required 10 indemnification. Briggs Decl., ¶ 9; Ex. “D.” Messrs. Gloria and Goldsmith are strong supporters of 11 the tax at issue here. If the City’s top legislator is willing to go on a smear campaign against public 12 servants and the City’s top legal adviser is willing to lie to his client, SDOG and its counsel have every 13 reason to want to be sure that the protective order in this case is bulletproof. 14 Furthermore, SDOG’s directors have some experience dealing with issues of witness protection. 15 One of the board members is a retired peace officer. His witness-protection training began with a 16 simple rule: do everything possible to keep the identity and whereabouts of witnesses unknown to 17 anyone who might do them harm, period. That is why the board has insisted that SDOG’s counsel do 18 everything that the law allows, and take absolutely no chances of any kind, in order to protect the 19 members’ identities from abuse. Quiroz Decl., ¶ 4. 20 None of this is meant to draw the Court’s sympathy. It is, however, meant to elicit a modicum 21 of understanding of why SDOG and its counsel have been so careful to dot every “i” and cross every 22 “t” when it comes to protecting the confidentiality of SDOG’s members’ identities, to show that there 23 has been no willful disobedience of any court order. SDOG, its members, and its counsel have years 24 of experience with physical violence and serious threats arising from their lawful pursuit of legal 25 remedies in court, and--as sad as that is and as noted above--it has even happened in this case. Couple 26 that with the (potentially) untrustworthy characters leading the City’s legislative and legal divisions, and 27 one can easily understand why SDOG and its counsel have been so careful about disclosing member 28 identities. P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 4 TO M OTION FOR S AN CTIO N S P AGE 4 1 One final point: SDOG and its counsel understand not only that they must turn square corners-- 2 everyone who comes to court must do so--but must go above and beyond the ordinary call of duty in 3 cases like this one because the stakes are so high and the opposition will look for every opportunity to 4 exploit even the slightest procedural hiccup. Even if SDOG and its counsel have not handled this case 5 perfectly, nothing they have done has been willfully disobedient. At a recent hearing in this lawsuit, 6 TMD. Corp’s lawyer, Mike Colantuono, pointed at that there was no reason to fear bodily harm to 7 SDOG’s members because “this is not North Korea.” His conclusion was right, but his implied premise 8 was wrong. This county differs from North Korea not because Americans are less violent than North 9 Koreans, but because Americans enjoy the protections of a constitution and an independent judiciary. 10 Everything SDOG and its counsel have done in this case has been in good-faith reliance on those 11 protections. 12 II. PROCEDURAL BACKGROUND 13 Apart from ignoring legitimate security considerations, what TMD Corp.’s motion fails to 14 provide is a balanced recitation of the events leading up to this motion. It turns out that it was SDOG 15 and its counsel who tried to provide the membership information in revised responses weeks ago-- 16 subject only to correction of the protective order’s missing exhibit--but TMD Corp. refused. 17 It was not until February 7, 2014, that SDOG was served with notice that the protective order 18 had been entered. Briggs Decl., ¶ 10. Two business days later and planning to be out of the office from 19 February 12 until March 3, 2014, SDOG’s counsel notified opposing counsel that the protective order 20 was incomplete because it was missing Exhibit “A”--the crucial written confirmation for anyone 21 receiving confidential information and not already bound by the protective order promising to be bound 22 by it. SDOG’s counsel sought a stipulation correcting the omission so that the revised responses could 23 be served sooner rather than later. The City of San Diego was amenable to a stipulation, but SDOG’s 24 counsel did not receive any indication that TMD Corp. was similarly amenable. Accordingly, SDOG 25 sought an ex parte order confirming that the protective order did include the missing exhibit. Briggs 26 Decl., ¶ 10; Ex. “E,” pp. 2-12, and Ex. “F,” p. 3. 27 After the Court confirmed that the protective order included the missing exhibit, knowing full 28 well that SDOG’s lead counsel was out of office on vacation, TMD Corp.’s counsel nevertheless P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 5 TO M OTION FOR S AN CTIO N S P AGE 5 1 demanded that he serve the revised responses no later than February 28, 2014. Another of SDOG’s 2 counsel was copied on the demand, sought guidance (despite being out of the office to deal with a death 3 in her own family1) from lead counsel, and responded to opposing counsel that lead counsel would do 4 his best to provide revised responses by March 7, 2014.2 Briggs Decl., ¶ 11; Ex. “G,” pp. 3-4, and Ex. 5 “H,” p. 1. 6 Just a few hours after returning to San Diego on March 2, 2014--even before unpacking-- 7 SDOG’s lead counsel learned that his elderly parents’ house had suffered a series of explosions, had 8 caught fire, and had been rendered uninhabitable due to the presence of toxic fumes. Being their only 9 child in Southern California, he was preoccupied on March 3 and 4 with helping his parents get suitable 10 shelter and deal with other emergencies. While he did not go to the office until late in the afternoon on 11 March 4, he had left a message at his Upland office early on March 3 to tell his paralegal where she 12 could find the revised responses and directing her to serve them to opposing counsel. Because his 13 paralegal is very reliable, SDOG’s counsel had no doubt that she would follow his instructions. What 14 he did not know when he left the message for his paralegal, and what nobody in his office knew at the 15 time, was that the paralegal’s grandmother had to undergo emergency lung surgery and that the 16 paralegal would not be able to come to work until March 5 because she’s her grandmother’s care-giver. 17 The paralegal had left a voice mail for SDOG’s lead counsel, but he did not check it because he was 18 also not at the office (due to his parents’ emergency). Briggs Decl., ¶¶ 12 & 13. 19 When SDOG’s lead counsel got to his Upland office in the early evening on March 4, he 20 realized that his paralegal had not been to the office for two days and thus could not have sent out the 21 revised responses. It was too late for him to mail them out when he got to the office on March 4. So 22 early in the morning on Wednesday, March 5, he made sure that the revised responses were ready to be 23 mailed out and I notified opposing counsel by e-mail that the revised responses would be served by mail 24 25 26 27 28 1 TMD Corp.’s opening papers for this motion do not include the e-mail correspondence in which attorney Mekaela M. Gladden notified opposing counsel of the death in her family and her consequent absence from the office, which was sent before this motion was filed. Gladden Decl., ¶ 5. 2 In order to protect the confidentiality of the SDOG member identities, SDOG’s lead counsel kept the client’s revised responses containing that information in a safe at one of his offices. Not having the missing-exhibit issue resolved before leaving for vacation, he planned to provide the revised responses to opposing counsel on the day he returned to the office after his vacation (i.e., on March 3, 2014). P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 6 TO M OTION FOR S AN CTIO N S P AGE 6 1 on that day. About 45 minutes later, the TMD Corp.’s lawyer thanked him for the update but stated that 2 TMD Corp. would not be withdrawing its motion for sanctions. That was the first time SDOG’s lead 3 counsel had learned that a sanctions motion had been filed concerning the revised responses. Briggs 4 Decl., ¶ 14, Ex. “I,” p. 1. 5 In sum, the revised responses were served not because of the sanctions motion but because 6 SDOG’s counsel was doing what had been promised one week earlier, before the sanctions motion had 7 been filed, at the first reasonable opportunity to do so. The sanctions motion provided no impetus for 8 SDOG’s service of the revised responses and was completely unnecessary. 9 III. ARGUMENT & ANALYSIS 10 The legal authorities cited in TMD Corp.’s own opening brief confirm that no sanctions are 11 warranted. As TMD Corp. acknowledges, those authorities required “continuing misuses of the 12 discovery process,” and even then the sanctions had to be “incrementally harsher” in order to be lawful 13 See Op’g Br., p. 6, lns. 5-6 (emphasis added). But most importantly, TMD Corp. must prove two 14 things: “(1) there must be a failure to comply and (2) the failure must be wilful.” Id., p. 6, lns. 9-10 15 (emphasis added). The evidence does not support TMD Corp.’s motion on either point.3 16 On the one hand, there has been no failure to comply with the Court’s prior discovery orders.4 17 As a result of SDOG’s motion for a protective order, the Court ordered SDOG to provide the opposing 18 parties “with the actual identity of Plaintiff's members, within the scope reflected in the Court of 19 Appeal's opinion.” See Notice of Rulings on Demurrer and Motion for Protective Order, Ex. “B,” p. 20 1 (filed Dec. 17, 2013). SDOG has done so. Before learning that this motion had been filed, SDOG 21 had already notified opposing counsel that the revised responses were on their way. Briggs Decl., ¶ 14. 22 In fact, the revised responses were served two days before the March 7 deadline that SDOG had agreed 23 to (notwithstanding TMD Corp.’s insistence on an earlier deadline). Id., ¶ 11. Thus, TMD Corp.’s 24 25 26 27 28 3 TMD Corp.’s motion tries to pin the blame for the pace of this lawsuit on SDOG. The Court is asked to keep in mind that TMD Corp. has filed multiple demurrers, that SDOG sought a protective order in opposition to the original motion to compel, and that SDOG unsuccessfully sought to expedite the hearing on its ultimately successful motion for a protective order after resolution of the appellate proceeding on that motion to compel. SDOG has thus been diligent, not dilatory. Any suggestions to the contrary should be ignored. 4 TMD Corp. focuses almost entirely on the October 25th order. However, that order is not the controlling order. The combined discovery orders--the October 25th order, the Court of Appeal’s ruling, and this Court’s ruling on SDOG’s subsequent protective-order motion--are what control. P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 7 TO M OTION FOR S AN CTIO N S P AGE 7 1 claim that that “SDOG has never attempted full compliance with the October 25th order” is patently 2 false. See Op’g Br., p. 8, lns. 13-14 (emphasis in original). 3 The two cases on which TMD Corp. primarily relies--Collisson & Kaplan v. Hartunian , 21 Cal. 4 App. 4th 1611 (1994), and Liberty Mutual Fire Insurance Company v. LcL Administrators, 163 Cal. 5 App. 4th 1093 (2008)--prove why SDOG’s conduct is not sanctionable. As TMD Corp. itself observes, 6 Collisson & Kaplan involved “repeated evasive discovery responses.” Op’g Br., p. 7, ln. 16 (emphasis 7 added). SDOG has not served any evasive discovery responses, much less “repeated” evasive 8 responses. Nor can SDOG’s conduct reasonably be described as “egregious,” which is how one 9 appellate court looking at Collisson & Kaplan (and not mentioned in TMD Corp.’s opening brief) 10 described the behavior sanctioned there. Maldonado v. Superior Ct., 94 Cal. App. 4th 1390, 1399 11 (2002). Likewise, Liberty Mutual involved not merely evasive responses but multiple failures to meet 12 and confer and multiple failures to provide promised responses. Liberty Mut. Fire Ins. Co., supra, 163 13 Cal. App. 4th at 1104. There is no such pattern of conduct by SDOG, and in fact SDOG has now 14 provided the names of the members on whom it is relying for standing.5 15 On the other hand, even if one assumes that SDOG’s conduct thus far could be described as a 16 “failure to comply,” there is zero evidence that such “failure [is] wilful.” The only evidence concerning 17 the state of mind or intentions of SDOG and its counsel make clear that they have been acting in good 18 faith in trying to balance privacy and security concerns against the opposing parties’ need for standing 19 evidence. Quiroz Decl., ¶¶ 5 & 7; Briggs Decl., ¶ 17; Gladden Decl., ¶¶ 3-7. This is especially 20 important given that SDOG’s counsel has been threatened with extreme physical violence in 21 connection with this very lawsuit. 6 Briggs Decl., ¶ 7. 22 Any attempt to infer bad intentions from the length of time it took for SDOG to serve its revised 23 responses on the opposing parties would be equally unavailing. TMD Corp. seems to have forgotten 24 25 26 27 28 5 TMD Corp.’s opening brief suggests that SDOG delayed in providing the revised responses because the City would not agree to be bound by the protective order. See Op’g Br., p. 11, lns. 6-8. It is true that SDOG’s counsel sought that assurance from the City because the City did not sign the stipulation that resulted in the protective order and counsel wanted to make sure there was no wiggle room for the City. Briggs Decl., ¶ 10. However, the City provided that assurance later in the day. Id. Thus, that issue had become a non-issue for SDOG shortly after it was raised. 6 TMD Corp. describes SDOG’s “refusal to comply” as “unprincipled.” See Op’g Br., p. 11, ln. 27. That hyperbolic claim is contrary to the evidence of safety/privacy motives. See Quiroz Decl., ¶ 7. P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 8 TO M OTION FOR S AN CTIO N S P AGE 8 1 that SDOG did not receive notice of the protective order’s entry until more than four weeks after the 2 Court signed it. Briggs Decl., ¶ 10. TMD Corp. also fails to give any credence to SDOG’s counsel’s 3 attempts to resolve the missing-exhibit issue by stipulation before leaving for vacation. Id. 4 Lastly, TMD Corp.’s notice for this motion indicates that “Joint sanctions [i.e., against SDOG 5 and its counsel] are appropriate because SDOG has refused to pay the $1,705 discovery sanction 6 awarded by this Court in its October 25, 2013 order. . . .” Notice of Motion, p. 1, lns. 15-16. There are 7 two problems with this basis for sanctions. Not only was that monetary sanction not directed at 8 SDOG’s counsel,7 but TMD Corp.’s sole remedy for SDOG’s failure to pay a monetary sanction is a 9 judgment and writ of execution against SDOG. Newland v. Superior Ct., 40 Cal. App 4th 608, 615 10 (1995) (ruling that “a terminating sanction issued solely because of a failure to pay a monetary 11 discovery sanction is never justified”). TMD Corp. is therefore entitled to nothing against SDOG or 12 its counsel except, in the worst-case scenario, a judgment and writ of execution against SDOG for less 13 than $1,800.00. 14 There being no failure to comply--wilful or otherwise--with the combined discovery orders, 15 there is no basis for any of the sanctions sought here by TMD Corp. SDOG has identified the members 16 on whom SDOG is relying for purposes of standing and served that information on the opposing parties. 17 “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is 18 required to protect the interests of the party entitled to but denied discovery.” Doppes v. Bentley 19 Motors, 174 Cal. App. 4th 967, 992 (2009) (internal quotations and citations omitted). Despite SDOG’s 20 counsel’s reasonable efforts, and for reasons beyond counsel’s control, the worst that anyone can say 21 about SDOG’s service of revised responses is that it occurred just a few business days after TMD 22 Corp.’s deadline. Under such circumstances, granting any of the sanctions sought by TMD Corp. would 23 go far beyond protecting any of its legitimate interests. 24 For all these reasons, TMD Corp.’s motion should be denied in its entirety. 25 26 27 28 7 SDOG’s counsel cannot be sanctioned because it has never advised anything except that “SDOG must abide by every court order promptly, completely, and in good faith.” Quiroz Decl., ¶ 5; Ghanooni v. Super Shuttle of Los Angeles, 20 Cal. App. 256, 261 (1993) (refusing monetary sanctions against attorney where evidence showed client’s conduct was not advised by attorney). P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 9 TO M OTION FOR S AN CTIO N S P AGE 9 1 IV. MONETARY SANCTIONS WOULD BE A WINDFALL 2 The Rutter Group points out that no award of sanction should represent a windfall for a party. 3 See CAL. PRAC. GUIDE CIV . PROC. BEFORE TRIAL § 8:1213 (2013). The nearly $17,000.00 that TMD 4 Corp. seeks would be exactly that. 5 First, the declaration of David Ruderman makes clear that TMD Corp. is seeking to recover 6 attorney fees and costs incurred in connection with matters preceding this Court’s ruling on SDOG’s 7 motion for a protective order. See Ruderman Decl., ¶ 24 (referring to work in Nov. 2013). 8 Second, the declaration does not indicate what work was done or by whom. See Ruderman 9 Decl., ¶ 24. Such block billing is not sufficient to support a request for attorney fees because it makes 10 it impossible to determine whether the work was done efficiently and reasonably or inefficiently and 11 with duplicate efforts. See, e.g., Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315, 1325 12 (2008). 13 Third, the declaration does not indicate when the work was performed. See Ruderman Decl., 14 ¶ 24. It is simply impossible to tell whether the work was done after SDOG’s associate counsel 15 (Mekaela Gladden) had told opposing counsel that revised responses would be sent out by the end of 16 the following week. In other words, the declaration does not make clear whether the fees were incurred 17 before or after TMD Corp. knew that service of the revised responses was imminent. 18 19 The evidence to support the nearly $17,000.00 monetary sanction being inadequate, the Court has no basis for awarded that amount against SDOG.8 20 21 V. CONCLUSION 22 This motion should be denied in its entirety. SDOG and its counsel have very good reasons for 23 being cautious about disclosing the identity of SDOG’s members without a solid protective order. They 24 endeavored to get to that point cooperatively but were rebuffed by TMD Corp. This motion was 25 unnecessary, and TMD Corp. should not be rewarded for its aggressive litigation tactics. None of the 26 sanctions would advance this litigation given that revised responses have been served. 27 28 8 As noted earlier, there is no basis for awarding any monetary sanctions against SDOG’s counsel because counsel has always advised SDOG to “abide by every court order promptly, completely, and in good faith.” See Quiroz Decl., ¶ 5; Ghanooni, supra, 20 Cal. App. at 261 (refusing monetary sanctions against attorney where evidence showed client’s conduct was not advised by attorney). P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 10 TO M OTION FOR S AN CTIO N S P AGE 10 1 Date: March 17, 2014. Respectfully submitted, 2 3 BRIGGS LAW CORPORATION By: ______________________________ Mekaela M. Gladden 4 5 Attorneys for Petitioner San Diegans for Open Government 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P LAIN TIFF S AN D IEGANS FOR O PEN G O VERN M EN T ’S O PPO SITIO N 11 TO M OTION FOR S AN CTIO N S P AGE 11 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Declaration of Pedro Quiroz, Jr. 12 OPPOSITION DECLARATION OF PEDRO QUIROZ, JR. 1 2 I, Pedro Quiroz, Jr., am over the age ofeighteen and ifcalled as a witness in this proceeding will 3 testify as follows: 4 1. 5 I am on the board of San Diegans for Open Government ("SDOG"). I am also a member and have been since at least July 2012. 6 2. SDOG is involved in a number of high-profile and controversial cases. 7 3. Members ofSDOG and non-members with similar interests that work with SDOG have 8 been physically harassed and intimidated by both public officials and other individuals. In one of 9 SDOG' s lawsuits involving the Sweetwater Union High School District, one ofSDOG' s members was 10 accosted in the middle of the night by an investigator hired by the District who told the member to 11 "stirring the pot." 12 4. I am a retired local law-enforcement officer. Part ofmy training included the protection 13 of witnesses. My witness-protection training began with a simple rule: do everything possible to keep 14 the identity and whereabouts of witnesses unknown to anyone who might do them harm, period. The 15 purpose of this rule is to minimize, if not prevent, opportunities for persons who want to silence 16 witnesses from having access to them except under the supervisor of a judge or law-enforcement 17 official. 18 5. Throughout this lawsuit (and every other one in which SDOG has been involved}, Briggs 19 Law Corporation's attorneys have made it clear to SDOG' s board that SDOG must abide by every court 20 order promptly, completely, and in good faith. The board has confidence in the legal system and whole- 21 heartedly embraces its attorneys' recommendations on this point. At the same time, however, SDOG' s 22 experience with threats and intimidation against its attorneys and its members, as well as my experience 23 in law enforcement, have caused the board to want to be sure that every possible angle for evading 24 compliance with or otherwise circumventing our members' rights of privacy are cut off. It is the 25 board' s view that even the slightest risk of an improper disclosure of our members' identities could 26 subject them to harm, even by supporters of the Tourism Marketing District tax at issue in this lawsuit, 27 and thus the board has made it clear to its attorneys that they must do everything they believe in good 28 faith to be proper to protect the members. The board has never been given any reason to believe that 13 1 SDOG's attorneys have not acted in good faith in carrying out the board's wishes to protect SDOG's 2 members. 3 6. 4 One of the biggest concerns ofSDOG's board has been making sure that there was a protective order in place to protect SDOG's members and making sure that there was no possible 5 loophole in the protective order that anyone wishing to harm a SDOG member, whether physically or 6 even just through embarrassment or disclosure ofmembership, could exploit. Once the board learned 7 that the Court was planning to enter an adequate protective order, the board agreed that it would be 8 acceptable to identify the names ofSDOG members on whom the organization is relying for standing 9 in this lawsuit upon entry of that order. However, the board was concerned about the missing exhibit 10 to the protective order because the board does not trust any of the opposing parties or attorneys not to 11 leak the members' identities to people who are not bound by the protective order in the absence oftheir 12 signing the exhibit. 13 7. There has never been any sentiment on the board for anyone to disobey-whether wilfully 14 or otherwise-any order of this Court, whether that be an earlier discovery order or the protective order 15 itself. The board wants this case to get to the merits as quickly as possible. consistent with adequate 16 protection for the members' privacy interests. Given the threats ofviolence and actual violence toward 17 SDOG's attorneys and members in the past, however, and given my training with protecting witnesses, 18 the board has wanted nothing more than to know that it has done everything it can do in good faith to 19 protect those members. Once we were satisfied that such a condition had been achieved, SDOG's 20 attorneys were authorized to identify the standing-purpose members pursuant to the protective order. 21 That did not happen in the board's mind until the last week ofFebruary 2014, when the Court confirmed 22 that the missing exhibit was indeed part of the protective order. 23 24 25 I declare under penalty of petjury under the laws of the State of California that the foregoing is true and correct. Date: March 12,2014. 26 27 28 DECLARATION Of PEDRO QUIROZ, JR. PAGE2 14 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Declaration of Keri M. Taylor 15 OPPOSITION DECLARATION OF KERI M. TAYLOR I 2 I, Keri M. Taylor, am over the age of eighteen and if called as a witness in this proceeding will 3 testifY as follows: 4 I. 5 I am a paralegal employed by Briggs Law Corporation ("BLC"), where I have been employed since April2003. 6 2. Almost ten years ago, after BLC had filed a second lawsuit against one of the world's 7 largest corporations, there was a break-in at our office in Upland, California. The local police 8 department investigated and found nothing. As a former military member who worked on top secret 9 flight security operations, I urged Cory J. Briggs to hire retired Secret Service and FBI agents to 10 investigate and perform a cyber-security sweep. They discovered that someone had put keystroke- !! tracking software on BLC's computers, allowing whoever installed it to remotely and secretly monitor 12 exactly what BLC personnel typed on the computers. Mr. Briggs and I discovered the break-in together, 13 spoke to the local police together, and spoke to the retired Secret Service and FBI agents together. 14 3. The testimony in paragraph 4 of the opposing declaration of Cory J. Briggs 15 (accompanying this declaration) is entirely consistent with what he described to me a few minutes after 16 the events described therein took place. He called me from his cell phone to tell me what had happened. 4. 17 The testimony in paragraph 5 of the opposing declaration of Cory J. Briggs 18 (accompanying this declaration) is entirely consistent with what he described to me a few minutes after 19 each of the various events described therein took place. He had once again called me from his cell 20 phone to tell me what had happened. 21 5. In 2012, shortly after BLC filed a lawsuit for a client against a big-box development in 22 Victorville, California, Mr. Briggs received an anonymous letter consisting of letters cut out of a 23 magazine. The letter read: "Stay out of our high desert. Come here again to cause trouble and you're 24 dead." There was no return address, and the postmark was smudged to the point of being illegible. I 25 was with Mr. Briggs when he opened the letter and notified the police about it; they said there was 26 nothing they could do. A true and correct copy of the letter is attached to this declaration as Exhibit 27 "B." 28 16 I 6. The testimony m paragraph 7 of the opposmg declaration of Cory J. Briggs 2 (accompanying this declaration) is entirely consistent with what he described to me a few minutes after 3 each of the various events described therein took place. He had once again called me from his cell 4 phone to tell me what had happened. 5 7. I was out of the office on March 4 and 5, 2014, because my grandmother had to undergo 6 emergency surgery and I am her care-giver. I did not have an opportunity to talk to Cory J. Briggs 7 directly about my absence from the office and had to leave him a message. Because I was not in the 8 office, I did not know that he had left me instructions to serve San Diegans for Open Government's 9 revised responses to discovery in this lawsuit. I did not learn of his instructions until I saw him at the 10 II office early in the morning on March 6. 8. The brand-new receptionist at BLC's Upland office does not have a key to the safe in 12 which Mr. Briggs keeps confidential documents. lfhe's not at the office, I'm the only other person who 13 has a key to the safe. 14 15 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 17, 2014. 17 18 19 20 21 22 23 24 25 26 27 28 PAGE2 DECLARATION OF KERI M. TAYLOR 17 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Declaration of Mekaela M. Gladden 18 OPPOSITION DECLARATION OF MEKAELA M. GLADDEN 1 2 3 4 5 6 I, Mekaela M. Gladden, am over the age of eighteen and if called as a witness in this proceeding will testify as follows: 1. I am an attorney licensed to practice law in the State of California. I am one of the attorneys of record in this lawsuit for San Diegans for Open Government (“SDOG”). 2. After having represented non-profit organizations and community groups, I have gained 7 an understanding of the need to keep members of organizations like SDOG as confidential as possible. 8 I have had phone calls and in-person conversations with members of organizations whose identities 9 were disclosed in public-interest litigation like this with less money at stake for the opposing side where 10 the member had been intimidated in some way--actions taken to destroy a member’s business, actions 11 taken to attempt to harm a member’s reputation or to humiliate a member, and so on. These 12 conversations are excruciating. In the type of litigation that I generally work on, the members often 13 have very little at stake in terms of a tangible gain. As a lawyer, I ultimately get paid; the organizations 14 and members very rarely see any direct financial benefit from the litigation. The goal is usually 15 upholding a constitutional right, making government more accountable in some way, improving the 16 quality of the environment, or something similar and the relief is typically a writ of mandate, 17 declaratory or injunctive relief. It takes far more courage than it should to stand up against an alleged 18 wrong or to demand compliance with the law when far more politically and financially powerful 19 entities and people are on the other side. I have enormous respect for those willing to stand up for 20 issues they believe in and participate in litigation, which is perceived as far more threatening than say 21 attending a fundraising event, and to do so without an incentive of a direct, tangible benefit to the 22 organization or member. Unfortunately, once the member’s name is out there, even if a member 23 changes his or her mind about participating in light of intimidation tactics, the bell cannot be unrung. 24 Therefore, I take very seriously my responsibility to keep membership information confidential and do 25 whatever I can within legal limits to maintain its confidentiality unless and until a member is ready and 26 willing to be publicly--or even semi-publicly under a protective order--have his or her identity 27 disclosed. 28 19 1 3. I have not taken any action in this litigation with the goal of delay. I have taken actions 2 to be cautious and to protect my client. For example, my efforts at the recent ex parte to clarify the 3 scope of the protective order and make sure the Court record had a complete copy of the protective 4 order, inclusive of the exhibit, was not an attempt to avoid discovery responses, but because if a 5 disclosure was made due to the inadvertent omission of the exhibit, it would have been carelessness on 6 my part that was at least partially to blame. I need to be able to tell my client and its members with 7 confidence that I did everything I could to ensure the greatest level of confidentiality that I was able 8 to secure. What may appear as an inadvertent omission of no consequence at one point can easily be 9 looked back upon as sloppy and careless lawyering if something were to happen. 10 4. At the time of the ex parte hearing, I did not know that my aunt would pass away shortly 11 thereafter and did not anticipate being out of the office and not working for several days.1 When I 12 learned of her death, I did what I could to make sure no hearings or deadlines were missed, and then 13 I left the office to be with my family. I did not take my computer or any files with me. Frankly, 14 providing supplemental discovery responses in this lawsuit was not at the forefront of my mind. 15 5. When I received TMD Corporation’s correspondence insisting on discovery responses 16 by the end of the week, I was able to get in touch with Cory Briggs despite his extremely limited e-mail 17 access while he was out of the country. He indicated he could provide the discovery responses when 18 he got back and to let opposing counsel know that he would do so. I did. Opposing counsel continued 19 to insist on responses and I informed them of the death in my family. Curiously, my correspondence 20 indicating that there was a death in my family is not included in TMD Corporation’s exhibits in 21 conjunction with its motion for sanctions even though it was sent to them before they filed the motion. 22 23 6. When I was out of the office, I did not have my computer or my files.2 As the discovery responses contained confidential information, they were not sitting out on my desk such that somebody 24 25 26 27 28 1 I did have a scheduled court appearance in San Bernardino on that Thursday that was luckily continued at the last minute and an event for my daughter on Friday that was going to have me out of the office for part of the day. However, I was not expecting to not be working at all or without my computer and without access to other files. 2 Even if I had my computer, at least on that Friday and over the weekend, I would not have been able to do anything remotely anyway because my office network was being worked on. Thus, even if I was in a position to do any work and was able to get my computer delivered to me, it would not have made much of a different in my ability to access everything needed to get further discovery responses out. DECLARATION OF MEKAELA M. GLADDEN PAGE 2 20 1 else could simply put them in the mail. Briggs Law Corporation is very serious about confidentiality 2 concerns, and all of us here keep information that we have on membership secure. As this is a public 3 document, I do not feel comfortable providing great detail on where we keep such information and 4 exactly how we keep the information secure, but suffice it to say that no one else in my office could 5 have sent out the responses with both me and Mr. Briggs out of the office. 6 7. My not providing revised discovery responses within TMD Corporation’s counsel’s 7 fabricated deadline was not a deliberate attempt to be evasive or cause delay. To be honest, even if I 8 had chosen to return to the office rather than be with my family during a difficult time, I would not have 9 been in an emotional state where I would feel comfortable double-checking to make sure I had the 10 correct documents, that everything was there, and done properly. Thus, because of the unanticipated 11 death in my family, it would not have been until Mr. Briggs returned to the office that the revised 12 responses would have been served on the opposing parties. 13 14 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 17, 2014. ___________________________ Mekaela M. Gladden 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF MEKAELA M. GLADDEN PAGE 3 21 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Declaration of Cory J. Briggs 22 1 2 OPPOSITION DECLARATION OF CORY J. BRIGGS I, Cory J. Briggs, am over the age of eighteen and if called as a witness in this proceeding will 3 testify as follows: 4 1. I am an attorney licensed to practice law in the State of California. I am the sole 5 principal of Briggs Law Corporation (“BLC”) and one of the attorneys of record in this lawsuit for San 6 Diegans for Open Government (“SDOG”). 7 2. SDOG and BLC have been careful to make sure that no information about SDOG 8 members could be made public except in accordance with a protective order having no loopholes. We 9 have done so because of concerns we have about the physical safety of SDOG members and not out of 10 any desire whatsoever to delay the disclosure of the members’ identities or to thwart any party from 11 litigating this lawsuit on the merits. 12 3. Almost ten years ago, after BLC had filed a second lawsuit against one of the world’s 13 largest corporations, there was a break-in at our office in Upland, California. The local police 14 department investigated and found nothing. My firm hired retired Secret Service and FBI agents to 15 investigate and perform a cyber-security sweep. They discovered that someone had put keystroke- 16 tracking software on BLC’s computers, allowing whoever installed it to remotely and secretly monitor 17 exactly what BLC personnel typed on the computers. 18 4. A couple years later, I represented Citizens for Responsible Equitable Environmental 19 Development and the Affordable Housing Coalition of San Diego County in multiple lawsuits against 20 the City of San Diego and hundreds of housing developers for illegally converting apartments into 21 condominiums without complying with the California Environmental Quality Act. Following the close 22 of a hearing on numerous administrative appeals in the city council chambers, several developers 23 entered the elevator with me and threatened to “beat your [i.e., my] ass into a bloody pulp if you don’t 24 stop fucking with us.” I got off the elevator in the city hall lobby and immediately reported the threat 25 to the police officer there. The developers all denied that anything had been said and the police officer 26 on the scene indicated that there was no real threat because the developers said “if.” 27 28 5. A few years ago, BLC filed a fraud lawsuit for a client (not SDOG) over a real-estate transaction gone bad. During his deposition, the main defendant stood up, leaned over the table, and 23 1 threatened to “fuck you [i.e., me] up if you don’t stop asking these questions.” The court reporter was 2 so scared that she interrupted her transcribing to leave the room and call for help. The defendant calmed 3 down but promised me that “you’re gonna pay for this.” A few months later, my house was vandalized 4 in the middle of the night with red paint meant to look like a violent murder had taken place there. The 5 incident was reported to police but nothing came of it because the culprit was unknown. One month 6 later, after the house was re-painted, the same thing happened again, only this time I was woken by the 7 commotion outside, saw what was happening, and ran after the culprit. Though she ultimately jumped 8 into the get-away car without being apprehended, I did get a good look at her and later picked her out 9 of a police line-up. However, the police refused to arrest her because she had an alibi; her boyfriend, 10 who matched the description of the driver of the get-away car, said that both of them were at home in 11 bed that night. My family lived in substantial fear after the attacks, especially during the period when 12 we did not know the culprit’s identity. True and correct copies of the vandalism to my house are 13 attached to this declaration as Exhibit “A”; the photos showing green paint are from the second attack, 14 and the street address and vehicle license-plate number have been redacted. 15 6. In 2012, shortly after BLC filed a lawsuit for a client against a big-box development in 16 Victorville, California, I received an anonymous letter consisting of letters cut out of a magazine. The 17 letter read: “Stay out of our high desert. Come here again to cause trouble and you’re dead.” There was 18 no return address, and the postmark was smudged to the point of being illegible. The police said there 19 was nothing they could do. A true and correct copy of the letter is attached to this declaration as Exhibit 20 “B.” 21 7. Also in 2012, at the close of a city council hearing on the Tourism Marketing District 22 tax that is the subject of this lawsuit, a man in the audience (who had been sitting with supporters of 23 the tax) came up to me as I was getting on the elevator, with doors closing, and whispered: “If you don’t 24 back off the TMD, I’ll beat your [i.e., my] fucking ass so bad that even your mother won’t recognize 25 your body.” I did not report that statement to the police because this threat also included “if,” and 26 because the man did not speak in favor during the hearing and thus could not have been identified in 27 the hearing’s video archives. 28 D EC LARATIO N OF C O RY J. B RIGGS P AGE 2 24 1 2 3 8. Attached to this declaration as Exhibit “C” is a true and correct copy of the article, “Todd Gloria makes a phone call,” that appeared in San Diego Citybeat on June 7, 2013. 9. Attached to this declaration as Exhibit “D” is a true and correct copy of the article, “San 4 Diego city attorney maneuvered to force Filner from office,” that appeared in the Los Angeles Times 5 on November 3, 2013. 6 10. Notice of entry of the protective order in this lawsuit was served on my office on 7 February 7, 2014. Two business days later, I notified opposing counsel that the protective order was 8 incomplete because it was missing Exhibit “A”--the crucial written confirmation for anyone receiving 9 confidential information and not already bound by the protective order promising to be bound by it. 10 Because I would be leaving the next day for an international trip and be out of the country until March 11 3, 2014, I notified opposing counsel that the exhibit was missing. As the Court can see from the e-mail 12 exchange (a true and correct copy of which is attached to this declaration as Exhibit “E”), I was 13 concerned about making sure that the City of San Diego was acknowledging it was bound by the 14 protective order (since it was not a signatory to it) and about making sure that the missing exhibit was 15 indeed part of the protective order; eventually my concern about the City was resolved, but my 16 colleagues would not accept my good-faith concerns about the effect of the protective order without the 17 exhibit being attached. All I wanted was “everyone to submit a stip asking the judge to sign a complete 18 order.” In other words, even as I was getting ready to leave for vacation, I was willing to resolve the 19 missing-exhibit issue with a simple stipulation in order to facilitate the exchange of the SDOG member 20 identities. Even the City’s lawyer was willing to stipulate, as shown by a parallel e-mail thread among 21 the lawyers (a true and correct copy of which is attached to this declaration as Exhibit “F”). I never 22 received word before leaving for vacation that the lawyers for San Diego Tourism Marketing District 23 Corporation (“SDTMDC”) were amenable to resolving my concerns by stipulation, so I instructed my 24 association, Mekaela Gladden, to handle it during my absence by ex parte application. 25 11. In order to protect the confidentiality of the SDOG member identities, I kept my client’s 26 revised responses containing that information in a safe at my Upland office. Not having the missing- 27 exhibit issue resolved before I left for vacation, my plan was to provide the revised responses to 28 opposing counsel on the day I returned to the office after my vacation (i.e., on March 3, 2014). Despite D EC LARATIO N OF C O RY J. B RIGGS P AGE 3 25 1 knowing that I was gone, after the Court confirmed that the missing exhibit was part of the protective 2 order at the ex parte hearing, the SDTMDC’s lawyers began to demand that I serve the revised 3 responses no later than February 28, 2014. (A true and correct copy of the demand is attached to this 4 declaration as Exhibit “G.”) Ms. Gladden was copied on the demand, though she was out of the office 5 due to a death in her family. Not having access to the responses or knowing exactly what my schedule 6 would be like when I returned from vacation, she e-mailed me in hopes that I would have internet 7 access. Fortunately I did for a short period and instructed her to notify opposing counsel that I would 8 do my best to get everything to them by the Friday of the following week (i.e., March 7, 2014). (A true 9 and correct copy of her e-mail is attached to this declaration as Exhibit “H.”) 10 12. Just a few hours after I returned to San Diego on March 2, 2014--even before I had 11 unpacked--I learned that my elderly parents’ house had suffered a series of explosions, had caught fire, 12 and had been rendered uninhabitable due to the presence of toxic fumes. Being their only child in 13 Southern California, I was preoccupied on March 3 and 4 with helping them get suitable shelter and 14 deal with other emergencies; my only serious diversion from helping them was spending 30 minutes 15 with a local news station to answer question about the City’s illegal plan to start deleting e-mails. 16 While I did not go to the office until late in the afternoon on March 4, I had left a message at my Upland 17 office early on March 3 to tell my paralegal, Keri Taylor, where she could find the revised responses 18 and directing her to mail them to opposing counsel. Because she is very reliable, I had no doubt that 19 she would follow my instructions. Apart from a brand-new temp receptionist, Ms. Taylor was the only 20 BLC employee who would be in the Upland office on March 3. 21 13. What I did not know when I left the message for Ms. Taylor, and what nobody at BLC 22 knew when I left my message for her, is that her grandmother had to undergo emergency lung surgery 23 and that Ms. Taylor would not be able to come to work until March 5 because she’s her grandmother’s 24 care-giver. Ms. Taylor had left a voice mail for me, but I did not check it because I was also not at the 25 office (due to my parents’ emergency). 26 14. When I got to my Upland office in the early evening on March 4, I realized that Ms. 27 Taylor had not been to the office for two days and thus could not have sent out the revised responses. 28 It was too late for me to mail them out when I got to the office on March 4. So early in the morning on D EC LARATIO N OF C O RY J. B RIGGS P AGE 4 26 1 Wednesday, March 5, I made sure that the revised responses were ready to be mailed out and I notified 2 opposing counsel by e-mail that the revised responses would be served by mail on that day. About 45 3 minutes later, SDTMDC lawyer Mike Colantuono thanked me for letting him know and stated that his 4 client would not be withdrawing its motion for sanctions. That was the first time I had learned that a 5 sanctions motion had been filed concerning the revised responses--that is to say, I caused the revised 6 responses to be served not because of the sanctions motion but because I was doing what Ms. Gladden 7 said one week earlier that I would do as soon as I got back to the office. (A true and correct copy of my 8 e-mail exchange with Mr. Colantuono is attached to this declaration as Exhibit “I.”) 9 15. The brand-new receptionist at BLC’s Upland office does not have a key to the safe in 10 which I keep confidential documents. If I’m not at the office, Ms. Taylor is the only other person who 11 has a key to the safe. 12 16. I detest litigation in which attorneys act uncivilly, exaggerate events, or make personal 13 attacks. Thus, my firm has a strict policy that we do not respond to such behavior unless I determine 14 that it is absolutely necessary to do so, and even then we do not respond in kind but instead respond in 15 Court to the extent necessary to ensure that such behavior is not prejudicial toward our clients. Our 16 silence in the face of such behavior should never be construed as capitulation; our silence simply 17 reflects our view that such behavior is beneath the dignity of our legal system. Consistent with this 18 policy, up to this point in this lawsuit BLC has not responded to the repeated attacks on my client and 19 my firm. However, I am concerned that the pending motion for sanctions was brought solely for the 20 purposes of trying to make us look bad, in hopes of generating sympathy or anger from the Court and 21 an adverse sanctions ruling against us. As the evidence shows, I attempted to resolve the missing- 22 exhibit issue before I left for vacation and made sure that the revised responses were served as quickly 23 as reasonably possible under the many unfortunate circumstances that my staff and I faced once the 24 Court confirmed that the missing exhibit was part of the protective order, without the need even for the 25 threat of any sanctions. 26 17. At no time have I ever willfully endeavor to delay service of SDOG’s revised responses 27 or otherwise thwart any opposing party’s ability to prepare its case on the merits. At all times I have 28 been doing my best, in good faith, to balance my client’s profound and oft-repeated concerns about D EC LARATIO N OF C O RY J. B RIGGS P AGE 5 27 1 protecting the privacy of its members and my ethical obligations to my client and to the Court. If I had 2 had my way, the missing-exhibit issue would have been resolved by stipulation when I proposed that 3 on February 11 and the revised responses would have been served sooner than they were (and almost 4 certainly before February 28, 2014). 5 18. I ask the Court to keep in mind, when it considers the amount of time that has passed 6 since this lawsuit was filed, that the opposing parties have filed multiple demurrers and that my client 7 controls neither the decision to file a demurrer nor the Court’s calendar for hearing demurrers. I also 8 ask the Court to keep in mind that my client proposed a protective order in response to the SDTMDC’s 9 first motion to compel but it was not until one appellate proceeding and a subsequent motion for a 10 protective order could be resolved that my client was directed to identify the members on whom it’s 11 relying for standing. In this regard, the Court should keep in mind that on November 12, 2013, my 12 client sought an order shortening time on its motion for a protective order, but the Court was unable to 13 accommodate that request because of its already overly burdened case load. 14 15 16 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 17, 2014. ___________________________ Cory J. Briggs 17 18 19 20 21 22 23 24 25 26 27 28 D EC LARATIO N OF C O RY J. B RIGGS P AGE 6 28 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Declaration of Judy M. Briggs 29 OPPOSITION DECLARATION OF JUDY M. BRIGGS 2 I, Judy M. Briggs, am over the age of eighteen and if called as a witness in this proceeding will 3 testify as follows: 4 1. I am the mother of attorney Cory J. Briggs. 5 2. In the evening on March 2, 2014, there was a car crash in front of the house where 6 Cory's father and I live. The car knocked over an electrical pole, and the transformer on the pole 7 exploded. That explosion in turn caused several sudden electrical explosions in the house due to the 8 surge of more than 4,000 volts, and those explosions caused fires that did substantial damage to the 9 property, including burning of certain materials that emitted toxic fumes, and rendered the property I0 11 uninhabitable. 3. Cory is our only child in Southern California. His father and I are retired senior citizens. 12 We needed his assistance in helping us get adequate shelter while our home was uninhabitable and in 13 dealing with the immediate aftermath of the fire. Our need for assistance was such that it had to have 14 imposed a substantial burden on Cory. Though we do not know the ins and outs ofhis day-to-day work, 15 it would have been difficult if not impossible for him to carry out all of his regular work responsibilities 16 and assist his father and me given the nature and extent of the help we needed until late in the day on 17 Tuesday, March 4, 2014. 18 19 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 17,2014. 21 22 23 24 25 26 27 28 30 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “A” 31 ., n. f I II , I ,t I II I I I ' I r. I~ . ~ 'I I ; .' , .. :f:' I ·.~.-- ·' .· ,,.,:... 1'1 . • .. f: • . . .·.:..· ·-,.~ .. ~ . ,; . ... ,· ' ~ ... • ••• • . ~ : 0 : j .• • t '""• I 37 • I ' ., .'.. ' r'~ ( • A . 'I ' ( ,I ' . PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “B” 44 45 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “C” 46 Todd Gloria makes a phone call 1 of 2 http://www.sdcitybeat.com/sandiego/print-blog-1244-print.html Click to Print Friday, Jun 07, 2013 - Last Blog on Earth News Council president denies pressuring CDBG-allocation chairman By John R. Lamb On the evening of Feb. 13, local business attorney Will Moore recalls making his young son an omelet for dinner when his phone rang. On the other end: San Diego City Council President Todd Gloria. The day before, the mayor-appointed, little-known Consolidated Plan Advisory Board (CPAB), for which Moore serves as chairperson, had completed the arduous, sometimes heart-breaking task of determining which worthy public-service programs would be recommended to the City Council for receipt of roughly $800,000 in federal Community Development Block Grant (CDBG) funds for the coming fiscal year. (Another $1.3 million in grants was set aside for homeless services through an initiative pushed by Gloria.) Todd Gloria - Photo - Dave Rolland Those funding decisions are determined through a complex ranking system that assigns scores to all applications submitted that are exhaustively vetted by the volunteer board over the course of months. But this time unlike previous years, the San Diego LGBT Community Center in Hillcrest —located in Gloria’s District 3—failed to make the cut for federal funding for counseling services intended for at-risk youth who have been kicked out of their homes, as Moore described it at a March council hearing, “for doing nothing more than being themselves.” Moore had a sense that Gloria would not take the news well, but, as he alleged at a council committee hearing Wednesday and a subsequent conversation with CityBeat, he had no idea just how peeved the council president would be. "I'm told during that phone call that I would reconvene the Consolidated Plan Advisory Board as the chair, and we would change the recommendations that we had made to include a certain organization in our funding recommendations," Moore told members of the council's Public Safety & Neighborhood Services Committee Wednesday. If he did not agree to the "order" from the influential council president, Moore said Gloria warned "a full-out assault would be launched on the [CPAB board], I and the board would be portrayed as discriminatory against this group in the press … and the ethics and integrity of the board would be questioned." Over subsequent weeks, Moore said friends began calling him. The native of Macon, Ga., and San Diego transplant serves on several community boards, including as chief counsel for the San Diego County Democratic Party, so the calls were particularly troubling. "Hey, I got a call from Todd Gloria asking, 'What are we going to do about Will Moore?'" he told the committee in recounting the calls. "'What are we going to do about Will Moore?'" he repeated, his irritation apparent. The good news, he said, was he still remains on all the boards he enjoys serving, the press never attacked him nor his board colleagues and he remains convinced that the CPAB made the right—albeit difficult—call. Moore said he waited to recount the telephonic encounter until now because he didn’t want to detract from the important work of the CPAB, which faces ever-more-difficult decisions as federal funds shrink from year to year while the needs of low- and moderate-income communities, for which the money is intended, rise. But time, he said, hasn’t softened his belief that Gloria overstepped his authority with the intent to influence the CPAB’s actions for a single "pet project" in his district, no matter how worthy, no matter how challenging and wrenching the process to select funding winners. "Obviously, we have additional things we need to do to perfect the process further," Moore told the council committee Wednesday. "But to have that kind of ad hominem assault made by a member of the City Council is entirely improper. I think it's probably not illegal, but it is clearly improper." In a statement Thursday, Gloria acknowledged that his "passionate belief" in The Center’s mental-health program (he once served on The Center's board) led him to call Moore over "my concern of how and why its application dropped in ranking based on the leadership of Mr. Moore." But he said Moore's "recollection of the content and spirit of that conversation is false." Gloria did not elaborate in the statement on what he said, nor did he mention the alleged subsequent calls to Moore's friends. Moore declined to identify those friends to CityBeat, preferring to keep 47 3/7/2014 8:49 AM Todd Gloria makes a phone call 2 of 2 http://www.sdcitybeat.com/sandiego/print-blog-1244-print.html them out of the squabble. "Todd is lying about the content of our conversation," Moore said in response. "This is political posturing about blatant political interference. He doesn't care about the process. He’s simply covering for himself." Gloria, in his statement, said this year's efforts by CPAB to recommend recipients of CDBG funds "demonstrated the need for consistent and objective scoring of CDBG applications, and those are being pursued through policy changes…." Indeed, Moore offered up six recommendations going forward to streamline the process for determining worthy projects for federal funding to the PS&NS committee Wednesday—from simplifying the application process to assuring a full complement of board members—before recounting his side of the Gloria encounter. Committee Chairperson Marti Emerald wondered why Moore hadn't made a seventh recommendation: in essence, no interference from elected officials. While not speaking specifically to Moore's allegations, Emerald noted that "none of us here on the City Council should be picking up the phone and calling anybody and leaning on you for any reason." She said she would support a policy that encourages public participation in the process, "but at night or whenever, we shouldn’t be cornering any of you and trying to apply pressure. I don’t believe that’s the right thing to do." Gloria appeared to echo that sentiment in March, when the council, including Gloria, unanimously approved the CPAB's recommendations that provided no funding for The Center. "I am respectful of the autonomy of this board," he said. In the end, Gloria managed to persuade his council colleagues in April to pony up $77,000 for The Center from their office budgets. Moore, in the meantime, isn't sure if he'll remain on the CPAB, despite praise from other members. "Todd basically accused me of being a homophobe, when, in fact, the most important things in life to me are civil rights and equality," he said. "Lots of great projects didn’t get funded. There was so little money." "This was petty, but I stand behind our decisions," he said, adding, "The only way to deal with a bully is you punch 'em in the mouth. I hope that's a lesson." Close Close Close 48 3/7/2014 8:49 AM PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “D” 49 San Diego city attorney maneuvered to force Filner from office - Los Ange... 1 of 2 http://articles.latimes.com/print/2013/nov/03/local/la-me-filner-ouster-2... ĸ Back to Original Article San Diego city attorney maneuvered to force Filner from office Jan Goldsmith worked for weeks to remove the first-term Democrat by squeezing him financially and releasing documents showing the anger and dismay of his staff. November 03, 2013 By Tony Perry SAN DIEGO — In Bob Filner's final days as mayor, the city attorney was prepared to do something never before done here: plead with a judge that the mayor posed a threat to women and should be barred from City Hall. A psychologist retained by City Atty. Jan Goldsmith was set to testify that, in her opinion, Filner fit the characteristics of a sociopath, was "without shame, empathy or compassion," and believed no rules applied to him. A court hearing was set for Aug. 21. It was not necessary. The night before the hearing, after two days of intense negotiations, Filner agreed to resign in exchange for the city paying most of his legal bills in a sexual harassment suit filed by Los Angeles attorney Gloria Allred on behalf of a former mayoral staffer. For six weeks, Goldsmith had maneuvered to force Filner out of office — by squeezing him financially, bluffing him about state law, embarrassing him by releasing documents showing the anger and dismay of his staff and threatening to force a trial on his alleged misuse of public funds, including for a junket to Paris. Goldsmith, 62, a former judge and state legislator, said he believes the threat of a restraining order — and the national media storm certain to follow — finally persuaded the normally combative mayor to step down. Filner's attorneys declined comment for this story. So did Filner, now awaiting a Dec. 9 sentencing for his guilty plea on charges brought by the state attorney general. In early July, as one woman after another went public with accusations of sexual harassment against Filner, Goldsmith and his staff concluded that Filner was an unrepentant felon and that women at City Hall needed to be protected from him. But the City Charter contains no provision for removing a mayor except through the difficult, expensive, politically unpredictable process of a recall election. "We strategized as lawyers: How were we going to remove the mayor?" Goldsmith said in a recent interview. "It was a de facto impeachment." Filner and Goldsmith had a rocky relationship from the beginning. Filner, 71, was the first Democratic mayor elected in San Diego in two decades. Goldsmith, a Republican serving his second term as city attorney, had endorsed Filner's GOP opponent. Filner arrived at City Hall with a long reputation — earned on the school board, City Council and then 10 terms in Congress — as a hardball political player. At their first meeting, Goldsmith said, Filner announced that he did not plan to take legal advice from the city attorney's office. He threw a sheaf of legal papers in the air. "Your blow-up yesterday concerns me," Goldsmith wrote in a Jan. 3 memo. "Our office is a law office, and we expected to be treated as professionals. Yesterday's meeting was the first and only meeting in which we (any of my lawyers) will tolerate being yelled at, called names or having things thrown at us.... Now it is zero tolerance." But the friction continued unabated. By February, months before any sexual harassment allegations appeared, "I understood he needed therapy," Goldsmith said. On Feb. 15, Goldsmith sent another memo to Filner citing his "abusive conduct" during a meeting with lawyers from Goldsmith's office. "It did not take you very long to violate the zero tolerance standard," Goldsmith wrote. Still, Goldsmith suggested the two meet privately and agree to a peace treaty. "I still think we should get together for coffee," Goldsmith wrote Filner on Feb. 26. There was no coffee. 50 3/7/2014 8:53 AM San Diego city attorney maneuvered to force Filner from office - Los Ange... 2 of 2 http://articles.latimes.com/print/2013/nov/03/local/la-me-filner-ouster-2... Filner clashed with Goldsmith over the city's marijuana ordinance, a misdemeanor charge brought by Goldsmith's office against a beach demonstrator in La Jolla and a charge against a protester for chalking anti-bank messages on city sidewalks. The mayor crashed one of Goldsmith's news conferences. Later he had a police officer escort one of Goldsmith's top aides out of a closed meeting. After Allred sued on behalf of Irene McCormack Jackson, Filner's former communications director, Goldsmith's investigators examined Filner's finances and concluded that he could not afford lawyers to fight the lawsuit. One fact seemed telling: Filner had waited months to reimburse the city for $900 in personal expenses on a city credit card. A decision was made to squeeze Filner, giving him the choice to resign or wage an expensive legal fight. "We didn't think he had the willingness or [financial] ability to deal with the legal issue," Goldsmith said. Goldsmith persuaded the City Council to refuse to defend Filner in the Jackson lawsuit and instead force him to hire private attorneys. "It was a bluff," said Goldsmith, noting that California law requires a public employer to represent an employee, even a mayor, accused of on-the-job misdeeds. Goldsmith's investigators gathered numerous declarations from women who alleged that they had been sexually harassed by the mayor. The mayor's office was forced to disclose notes taken at staff meetings that showed growing anger at Filner's abusive treatment. As Filner hid from the media, Goldsmith said in numerous interviews that it was only a matter of time until Filner would be out. By mid-August, all nine City Council members — five Democrats and four Republicans — wanted Filner to resign. A retired federal judge was persuaded to oversee negotiations between Filner, his attorneys, Goldsmith and his staff, and Councilman Kevin Faulconer and Council President Todd Gloria. After two days of intense negotiations, one of the last items to be resolved involved money. Under the agreement, the city would pay up to $98,000 for Filner's private attorneys defending him in the Jackson lawsuit. Those attorneys billed about $28,000 above that amount and would work out the difference with Filner. The city is not paying any of Filner's legal costs related to the state attorney general's investigation that led to his guilty plea or to any other civil suits that might arise. Filner signed the agreement Aug. 21, and it was approved by the council two days later. After a farewell speech that was alternately sorrowful and defiant, Filner's resignation was effective Aug. 30. On Oct. 15, Filner pleaded guilty to felony false imprisonment and two counts of misdemeanor battery, all involving mistreatment of women during his months as mayor. Under the plea bargain with the attorney general, Filner will not go to jail or prison but will serve three months of home confinement, agree to never again seek public office, have his mayoral pension reduced and undergo mental health counseling. For the psychological analysis of Filner that was never used, the city paid $4,550 — calculated at 13 hours of consultation at $350 an hour, according to documents obtained by The Times under the California Public Records Act. Solana Beach psychologist Sage de Beixedon Breslin never interviewed Filner but studied his many public statements and demeanor on Google and YouTube. An expert witness in numerous cases involving restraining orders and accusations of sexual harassment, Breslin said in an interview that she was "cautiously optimistic that watching someone toppled from power because of these kind of crimes might have a good impact, might instill just a little fear in people like this." Goldsmith has proposed a charter amendment to allow for a mayoral impeachment process. Looking back on his long dispute with Filner, he said his years as a judge helped him maintain his composure. "It was like having the litigant from hell in your courtroom for eight months," he said. tony.perry@latimes.com Copyright 2014 Los Angeles Times Index by Keyword Index by Date Privacy Policy Terms of Service 51 3/7/2014 8:53 AM PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “E” 52 Date: 03/15/2014 Page: 1 Record Report Briggs Law Corporation Field Value Record Type Date Time Duration Status Description Client ID Contact User ID Sent/Received To/From Subject Spoke With Returned Call Left Message Voice Message First Date Last Date First Time Last Time Date Time Research URL Research File To From CC E 02/11/2014 12:57:00 PM 0:00:00 U BCC E-mail Body 1593.13 Ruderman/David J. CORY S druderman@cllaw.us Re: SDOG v. City of San Diego (TMD) N N N N mm/dd/yyyy mm/dd/yyyy hh:mm:ss AM hh:mm:ss AM druderman@cllaw.us Cory Briggs CBrock@sandiego.gov, mcolantuono@cllaw.us, mekaela@briggslawcorp.com I am asking everyone to submit a stip asking the judge to sign a complete order. If that is not acceptable, file your motion. Cory Sent from my iPad. Please forgive any typos. On Feb 11, 2014, at 12:49 PM, "David J. Ruderman" wrote: Cory, Again, we did submit a complete protective order to the Court-including Exhibit A-which Judge Wohlfeil signed. There is simply no dispute about the Exhibit A that applies to the protective order. In fact, we attempted to submit a declaration from Michael Colantuono in support of the protective order on January 15, 2014, but the court rejected this filing, noting that the court had already signed the protective order (see attached). If we resubmit a protective order we already submitted, and which the Judge 53 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 2 Record Report Briggs Law Corporation Field Value already signed, the result will be the same. If you feel differently, I invite you to make that argument to the Court on our motion for issue sanctions as your continued delay leaves us no other choice. Regards, David J. Ruderman Colantuono & Levin, PC 11364 Pleasant Valley Road Penn Valley, CA 95946 Direct: (530) 798-2417 Main: (530) 432-7357 Fax: (530) 432-7356 E-mail: DRuderman@cllaw.us Web: www.cllaw.us This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 11:25 AM To: 'Brock, Carmen'; Michael G. Colantuono Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) Actually, I am more convinced than ever by how much ado people are making about this that I am right and the city and TMD are looking for a loophole. Mike was very clear in court that he's going to do whatever he wants with the information, and I find it easy to believe that he'd love nothing more than get the confidential information to someone and then claim "oops," there's no signed acknowledgment because it wasn't part of the judge's order. 54 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 3 Record Report Briggs Law Corporation Field Value So we can agree to put a complete order in front of the judge, or TMD Corporation can proceed with its motion for issue sanctions. I don't know how much easier I could possibly make this for you. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. 55 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 4 Record Report Briggs Law Corporation Field Value From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 11:22 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) What is so important about Exhibit A being attached? Why don't we all just stipulate that Exhibit A will be attached as submitted to the court? Sorry but this is such a petty excuse for not producing the information TMD is entitled to, it is ludicrous. Your client is not exposed to having "no recourse". You know perfectly well it will take the judge even more time to get around to signing a second copy. So I suggest we all agree that Exhibit A as referenced in the Order IS ATTACHED. Ok? We can circulate a copy so we all agree to the same form. From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 11:09 AM To: Brock, Carmen; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) We need exhibit A to the protective order that is signed by the judge. There's no exhibit A to what he signed. I'm not going to expose my client to zero recourse if you or Mike's office gives the confidential information to someone who should be signing exhibit A and that person then misuses the information. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 56 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 5 Record Report Briggs Law Corporation Field Value 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 11:06 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) What is not complete about it? It defines the terms under which confidential information can be disclosed. If you submitted something different to the court, it is a technicality that should not stop the discovery responses from being produced immediately. What do you think is so important to have attached? 57 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 6 Record Report Briggs Law Corporation Field Value From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 11:01 AM To: Brock, Carmen; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) Thanks, Carmen. Now, do we want to work together to get a complete signed protective order, or does TMD Corporation prefer to go for issue sanctions? If the former, please work through Mekaela after today as I will not be available. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. 58 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 7 Record Report Briggs Law Corporation Field Value Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 10:59 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) The City agrees with the terms of the protective order as signed by the court, that is, that access to information designated as confidential may be disclosed, as needed, to persons set forth in Paragraph 5, which includes elected officials , officers, directors and employees of the City. By its own terms, the protective order is imposed on all "discovery in this action" (Protective Order, paragraph 2) which is typical. So there should be no confusion regarding who is bound (or not) by the court's order. It is not party specific. It is a court order. It covers discovery in this action. So, what's the problem? A motion for sanctions is not unreasonable if we are going to stall further over petty details. Why don't you just serve the discovery responses so we can get this case moving? From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 10:10 AM To: 'Michael G. Colantuono' Cc: David J. Ruderman; Brock, Carmen; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) 59 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 8 Record Report Briggs Law Corporation Field Value Let me be sure I understand the situation: You would rather waste the court's time with a motion for issue sanctions (which will take weeks if not months and cost everyone plenty) than ask the court to fix its order (which could probably take a few days and cost nothing or next to nothing)? Seems odd given that your office submitted the proposed protective order but apparently didn't bother to make sure that the court had a complete copy to sign. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. 60 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 9 Record Report Briggs Law Corporation Field Value From: Michael G. Colantuono [mailto:mcolantuono@cllaw.us] Sent: Tuesday, February 11, 2014 10:06 AM To: Cory Briggs Cc: David J. Ruderman; Carmen A. Brock (cbrock@sandiego.gov); Mekaela Gladden Subject: Re: SDOG v. City of San Diego (TMD) It will be a motion for issue sanctions. You have been in defiance of an order compelling discovery since October. You have run out of even plausible, much less persuasive excuses, for continued defiance of that order. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 10:04 AM, "Cory Briggs" wrote: Compel what? I'm confirming that we're going to comply but need a complete copy of the protective order and confirmation that Carmen's on board. How is that a problem? 61 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 10 Record Report Briggs Law Corporation Field Value Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Michael G. Colantuono [mailto:mcolantuono@cllaw.us] Sent: Tuesday, February 11, 2014 10:02 AM To: Cory Briggs Cc: David J. Ruderman; Carmen A. Brock (cbrock@sandiego.gov); Mekaela Gladden Subject: Re: SDOG v. City of San Diego (TMD) 62 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 11 Record Report Briggs Law Corporation Field Value Enough. We will bring our motion to compel. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 9:56 AM, "Cory Briggs" wrote: Counsel: I am writing In response to David's letter dated February 6, 2014. First, the court's protective order is incomplete. There is no exhibit attached to it, even though the order references the exhibit "attached" to the order. Second, my client will be complying with the court's ruling on the motion to compel (no more, no less) as modified by the protective order after my office has been served with a complete protective order (i.e., a complete order signed by the judge). Third, I do not recall seeing Carmen agree to the protective order; in fact, my last recollection is that she was not okay with it, and I do not recall ever seeing her signature on the proposed protective order. I need written confirmation from her that she has agreed to be bound by it. Fourth, I understand that you feel obligated to stake out your position in every bit of correspondence you create. The fact that I do not dispute the many recurring inaccuracies in your correspondence does not mean that I am capitulating on them. I simply 63 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Page: 12 Record Report Briggs Law Corporation Field Value do not believe in running up legal bills for no good reason (and repeating one's position, baseless or not, has no good reason). Please note that I will be out of the office from Feb. 12 through March 3 and will have very infrequent (if any) e-mail access. Mekaela is around to help with any procedural issues that arise in getting a complete protective order signed by the judge. Thanks. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, 64 CJB Saturday 03/15/2014 2:16 pm Date: 03/15/2014 Record Report Page: 13 Briggs Law Corporation Field Value marketing, or recommending to another party any transaction or matter addressed in this message. E-mail Attachments Phone # 65 CJB Saturday 03/15/2014 2:16 pm PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “F” 66 Date: 03/15/2014 Page: 1 Record Report Briggs Law Corporation Field Value Record Type Date Time Duration Status Description Client ID Contact User ID Sent/Received To/From Subject Spoke With Returned Call Left Message Voice Message First Date Last Date First Time Last Time Date Time Research URL Research File To From CC E 02/11/2014 02:19:00 PM 0:00:00 U BCC E-mail Body 1593.13 MEKAELA R Michael G. Colantuono Re: SDOG v. City of San Diego (TMD) N N N N mm/dd/yyyy mm/dd/yyyy hh:mm:ss AM hh:mm:ss AM cory@briggslawcorp.com Michael G. Colantuono CBrock@sandiego.gov, druderman@cllaw.us, mekaela@briggslawcorp.com There has never been dispute about Exhibit A and there is none now. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 11:57 AM, "Cory Briggs" wrote: And that is what worries me. When the judge signs a complete order, then I will know that the risk of abuse is as low as possible. Cory Sent from my iPhone. Please forgive my typos. On Feb 11, 2014, at 11:53 AM, "Michael G. Colantuono" wrote: I don't share your recollection of my comments in court. In any event, you 67 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 2 Record Report Briggs Law Corporation Field Value have my assurance that we will honor every lawful order of the court to the letter. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 11:25 AM, "Cory Briggs" wrote: Actually, I am more convinced than ever by how much ado people are making about this that I am right and the city and TMD are looking for a loophole. Mike was very clear in court that he's going to do whatever he wants with the information, and I find it easy to believe that he'd love nothing more than get the confidential information to someone and then claim "oops," there's no signed acknowledgment because it wasn't part of the judge's order. So we can agree to put a complete order in front of the judge, or TMD Corporation can proceed with its motion for issue sanctions. I don't know how much easier I could possibly make this for you. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. 68 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 3 Record Report Briggs Law Corporation Field Value Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 11:22 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) What is so important about Exhibit A being attached? Why don't we all just stipulate that Exhibit A will be attached as submitted to the court? Sorry but this is such a petty excuse for not producing the information TMD is entitled to, it is ludicrous. Your client is not exposed to having "no recourse". You know perfectly well it will take the judge even more time to get around to signing a second copy. So I suggest we all agree that Exhibit A as referenced in the Order IS ATTACHED. Ok? We can circulate a copy so we all agree to the same form. From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 11:09 AM To: Brock, Carmen; 'Michael G. Colantuono' 69 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 4 Record Report Briggs Law Corporation Field Value Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) We need exhibit A to the protective order that is signed by the judge. There's no exhibit A to what he signed. I'm not going to expose my client to zero recourse if you or Mike's office gives the confidential information to someone who should be signing exhibit A and that person then misuses the information. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter 70 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 5 Record Report Briggs Law Corporation Field Value addressed in this message. From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 11:06 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) What is not complete about it? It defines the terms under which confidential information can be disclosed. If you submitted something different to the court, it is a technicality that should not stop the discovery responses from being produced immediately. What do you think is so important to have attached? From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 11:01 AM To: Brock, Carmen; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) Thanks, Carmen. Now, do we want to work together to get a complete signed protective order, or does TMD Corporation prefer to go for issue sanctions? If the former, please work through Mekaela after today as I will not be available. Cory Cory J. Briggs 71 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 6 Record Report Briggs Law Corporation Field Value Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Brock, Carmen [mailto:CBrock@sandiego.gov] Sent: Tuesday, February 11, 2014 10:59 AM To: Cory Briggs; 'Michael G. Colantuono' Cc: David J. Ruderman; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) The City agrees with the terms of the protective order as signed by the court, that is, that access to information designated as confidential may be disclosed, as needed, to persons set forth in Paragraph 5, which includes 72 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 7 Record Report Briggs Law Corporation Field Value elected officials , officers, directors and employees of the City. By its own terms, the protective order is imposed on all "discovery in this action" (Protective Order, paragraph 2) which is typical. So there should be no confusion regarding who is bound (or not) by the court's order. It is not party specific. It is a court order. It covers discovery in this action. So, what's the problem? A motion for sanctions is not unreasonable if we are going to stall further over petty details. Why don't you just serve the discovery responses so we can get this case moving? From: Cory Briggs [mailto:cory@briggslawcorp.com] Sent: Tuesday, February 11, 2014 10:10 AM To: 'Michael G. Colantuono' Cc: David J. Ruderman; Brock, Carmen; Mekaela Gladden Subject: RE: SDOG v. City of San Diego (TMD) Let me be sure I understand the situation: You would rather waste the court's time with a motion for issue sanctions (which will take weeks if not months and cost everyone plenty) than ask the court to fix its order (which could probably take a few days and cost nothing or next to nothing)? Seems odd given that your office submitted the proposed protective order but apparently didn't bother to make sure that the court had a complete copy to sign. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. 73 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 8 Record Report Briggs Law Corporation Field Value Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Michael G. Colantuono [mailto:mcolantuono@cllaw.us] Sent: Tuesday, February 11, 2014 10:06 AM To: Cory Briggs Cc: David J. Ruderman; Carmen A. Brock (cbrock@sandiego.gov); Mekaela Gladden Subject: Re: SDOG v. City of San Diego (TMD) It will be a motion for issue sanctions. You have been in defiance of an order compelling discovery since October. You have run out of even plausible, much less persuasive excuses, for continued defiance of that order. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) 74 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 9 Record Report Briggs Law Corporation Field Value (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 10:04 AM, "Cory Briggs" wrote: Compel what? I'm confirming that we're going to comply but need a complete copy of the protective order and confirmation that Carmen's on board. How is that a problem? Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. 75 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 10 Record Report Briggs Law Corporation Field Value Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Michael G. Colantuono [mailto:mcolantuono@cllaw.us] Sent: Tuesday, February 11, 2014 10:02 AM To: Cory Briggs Cc: David J. Ruderman; Carmen A. Brock (cbrock@sandiego.gov); Mekaela Gladden Subject: Re: SDOG v. City of San Diego (TMD) Enough. We will bring our motion to compel. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Feb 11, 2014, at 9:56 AM, "Cory Briggs" wrote: 76 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 11 Record Report Briggs Law Corporation Field Value Counsel: I am writing In response to David's letter dated February 6, 2014. First, the court's protective order is incomplete. There is no exhibit attached to it, even though the order references the exhibit "attached" to the order. Second, my client will be complying with the court's ruling on the motion to compel (no more, no less) as modified by the protective order after my office has been served with a complete protective order (i.e., a complete order signed by the judge). Third, I do not recall seeing Carmen agree to the protective order; in fact, my last recollection is that she was not okay with it, and I do not recall ever seeing her signature on the proposed protective order. I need written confirmation from her that she has agreed to be bound by it. Fourth, I understand that you feel obligated to stake out your position in every bit of correspondence you create. The fact that I do not dispute the many recurring inaccuracies in your correspondence does not mean that I am capitulating on them. I simply do not believe in running up legal bills for no good reason (and repeating one's position, baseless or not, has no good reason). Please note that I will be out of the office from Feb. 12 through March 3 and will have very infrequent (if any) e-mail access. Mekaela is around to help with any procedural issues that arise in getting a complete protective order signed by the judge. Thanks. Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com 77 CJB Saturday 03/15/2014 2:20 pm Date: 03/15/2014 Page: 12 Record Report Briggs Law Corporation Field Value Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. E-mail Attachments Phone # 78 CJB Saturday 03/15/2014 2:20 pm PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “G” 79 Date: 03/15/2014 Page: 1 Record Report Briggs Law Corporation Field Value Record Type Date Time Duration Status Description Client ID Contact User ID Sent/Received To/From Subject Spoke With Returned Call Left Message Voice Message First Date Last Date First Time Last Time Date Time Research URL Research File To E 02/25/2014 11:00:00 AM 0:00:00 U From CC BCC E-mail Body 1593.13 CORY R Ashley A. Lloyd San Diegans for Open Government v. City of San Diego, Case N N N N N mm/dd/yyyy mm/dd/yyyy hh:mm:ss AM hh:mm:ss AM cory@briggslawcorp.com, mekaela@briggslawcorp.com, CBrock@sandiego.gov Ashley A. Lloyd mcolantuono@cllaw.us, druderman@cllaw.us Dear Mr. Briggs: Please see the attached letter from David Ruderman. The original will follow by regular mail. Thank you. Ashley A. Lloyd Assistant to Michael Colantuono, David Ruderman, Michael Cobden and Jon di Cristina Colantuono & Levin, PC 11364 Pleasant Valley Road Penn Valley, CA 95946 80 CJB Saturday 03/15/2014 2:37 pm Date: 03/15/2014 Page: 2 Record Report Briggs Law Corporation Field Value Phone: (530) 432-7357 Fax: (530) 432-7356 E-mail: ALloyd@cllaw.us Web: www.cllaw.us This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. E-mail Attachments Phone # Briggs Ltr 2-25-14.pdf 81 CJB Saturday 03/15/2014 2:37 pm Colantuono & Levin, PC 11364 Pleasant Valley Road Penn Valley, CA 95946-9000 Main: (530) 432-7357 FAX: (530) 432-7356 David J. Ruderman DRuderman@CLLAW.US (530) 798-241 7 WWW.CLLAW.US SANDRA J. LEVIN, OF COUNSEL February 25,2014 VIA ELECTRONIC & U.S. MAIL Cory J- Briggs, Esq. Briggs Law Corporation 99 East "C" Street, Suite 111 Upland, CA 91786 Cory@briggslawcorp.com Re: San Diegans for Open Government v. City of San Diego et al., Case No. 37-2012-88065 Dear Cory: Further to my letter of February 6, 2014 and the Court's clarification at today's ex parte hearing that the Protective Order includes Exhibit A thereto (Agreement to Abide by Protective Order), we demand you serve complete responses to the TMD Corp.'s Form Interrogatory No. 17.1 and Requests for Admission Nos. 1 through 10. We expect you to serve by e-mail and U.S. mail by Friday, February 28, 2014, responses that include, but are not limited to, the identity of any member of San Diegans for Open Government ("SDOG") on whom it relies for standing in this action, all facts supporting its denial or equivocal admissions of each RF A, and any documents that support SDOG's responses. If we do not, the TMD Corp. will file and serve its motion for sanctions against SDOG for its failure to comply with multiple Court orders. As you may be aware, the TMD Corp. has already reserved March 28, 2014 at 9:00 a.m. for a hearing on this matter. 125117.1 82 Cory J. Briggs, Esq. February 25, 2014 Page2 We look forward to your prompt compliance with your professional obligations. We cannot countenance any further pretexts for delay. Sincerely, David J. Ruderman DJR:DJR c: Mekaela M. Gladden, Esq. Michael G. Colantuono, Esq. Carmen Brock, Deputy City Attorney 125117.1 83 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “H” 84 Date: 03/15/2014 Page: 1 Record Report Briggs Law Corporation Field Value Record Type Date Time Duration Status Description Client ID Contact User ID Sent/Received To/From Subject Spoke With Returned Call Left Message Voice Message First Date Last Date First Time Last Time Date Time Research URL Research File To From CC E 02/25/2014 04:36:00 PM 0:00:00 U BCC E-mail Body 1593.13 Ruderman/David J. MEKAELA S druderman@cllaw.us RE: San Diegans for Open Government v. City of San Diego, Ca N N N N mm/dd/yyyy mm/dd/yyyy hh:mm:ss AM hh:mm:ss AM druderman@cllaw.us Mekaela Gladden mcolantuono@cllaw.us, ALloyd@cllaw.us, cory@briggslawcorp.com, CBrock@sandiego.gov As Cory informed you in his e-mail on February 11, he is out until Monday, March 3 and has very limited e-mail until then. He asked me to tell you that he will do his best to respond to your letter by next Friday. Mekaela Gladden Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA, 91786 Telephone: 619-497-0021 Facsimile: 619-515-6410 (San Diego) E-mail: Mekaela@briggslawcorp.com Important Notice: This message contains confidential information intended 85 CJB Saturday 03/15/2014 2:33 pm Date: 03/15/2014 Page: 2 Record Report Briggs Law Corporation Field Value only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. From: Ashley A. Lloyd [mailto:ALloyd@cllaw.us] Sent: Tuesday, February 25, 2014 11:00 AM To: Cory Briggs; Mekaela Gladden; CBrock@sandiego.gov Cc: Michael G. Colantuono; David J. Ruderman Subject: San Diegans for Open Government v. City of San Diego, Case No. 37-2012-00088065 Dear Mr. Briggs: Please see the attached letter from David Ruderman. The original will follow by regular mail. Thank you. Ashley A. Lloyd Assistant to Michael Colantuono, David Ruderman, Michael Cobden and Jon di Cristina 86 CJB Saturday 03/15/2014 2:33 pm Date: 03/15/2014 Page: 3 Record Report Briggs Law Corporation Field Value Colantuono & Levin, PC 11364 Pleasant Valley Road Penn Valley, CA 95946 Phone: (530) 432-7357 Fax: (530) 432-7356 E-mail: ALloyd@cllaw.us Web: www.cllaw.us This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. E-mail Attachments Phone # 87 CJB Saturday 03/15/2014 2:33 pm PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT’S BRIEF IN OPPOSITION TO MOTION FOR TERMINATING, ISSUE, EVIDENCE AND/OR MONETARY SANCTIONS Exhibit “I” 88 Date: 03/15/2014 Page: 1 Record Report Briggs Law Corporation Field Value Record Type Date Time Duration Status Description Client ID Contact User ID Sent/Received To/From Subject Spoke With Returned Call Left Message Voice Message First Date Last Date First Time Last Time Date Time Research URL Research File To From CC E 03/05/2014 09:36:00 AM 0:00:00 U BCC E-mail Body 1593.13 CORY R Michael G. Colantuono Re: SDOG v. City of San Diego (TMD) N N N N mm/dd/yyyy mm/dd/yyyy hh:mm:ss AM hh:mm:ss AM cory@briggslawcorp.com Michael G. Colantuono druderman@cllaw.us, cbrock@sandiego.gov, mekaela@briggslawcorp.com, anthony@briggslawcorp.com Thank you for letting us know. We will not withdraw our motion for sanctions even if we should find your answers compliant with the Court's October 25th order and the statute. We filed and served that yesterday and you should receive it by FedEx today. Michael G. Colantuono Colantuono & Levin, PC (530) 432-7357 (voice) (530) 432-7356 (fax) Sent from my iPad On Mar 5, 2014, at 8:50 AM, "Cory Briggs" wrote: Counsel: Revised discovery responses will go out in today's mail. Thanks for your patience. 89 CJB Saturday 03/15/2014 2:54 pm Date: 03/15/2014 Page: 2 Record Report Briggs Law Corporation Field Value Cory Cory J. Briggs Briggs Law Corporation San Diego County: 814 Morena Boulevard, Suite 107, San Diego, CA 92110 Inland Empire: 99 East "C" Street, Suite 111, Upland, CA 91786 Telephone: 619-221-9280 (San Diego), 909-949-7115 (Inland Empire) Facsimile: 619-515-6410 (San Diego), 909-949-7121 (Inland Empire) E-mail: cory@briggslawcorp.com Please consider the environment before printing this e-mail, and print double-sided whenever possible. Important Notice: This message contains confidential information intended only for the use of the addressee(s) named above and may contain information that is legally privileged. If you are not an addressee or the person responsible for delivering this message to the addressee(s), you are hereby notified that reading, disseminating, distributing, or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify me by replying to this message and then delete the original message and your reply immediately thereafter. Thank you very much. Internal Revenue Service Circular 230 Disclosure: Nothing in this message is intended or written by Briggs Law Corporation (including its attorneys and staff) to be used and cannot be used for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this message. E-mail Attachments Phone # 90 CJB Saturday 03/15/2014 2:54 pm PROOF OF SERVICE I. My name is Alison M. Greenlee . I am over the age of eighteen. I am employed in the State of California, County of Jian Bernardin!!_ _ _ _ . 2. My ___11'_ business _ _ residence address is Briggs Law Cornoration. 99 East "C" Street. Suittill..,______ J!p_land, CA 912ft6 3. On ____ ________M"archXL ]01_±___ , I served _ _ an original copy ___L_a true and correct copy of the following documents:LLAINTIEF_B_AN DIE...G;\NS FOR OPEN GOVERNMENT'.£ BRIEF T.uN,___ OPPOSITION TO MOTION FOR TERMINATING,_!SSUE, EVIDENCE AND/OR MONETARY SANCTIONS; OPPOSING DECLARATIONS OF PEDRO .Q!!IROZ. JR.. KERI M. TAYLOR~MEKAELA M. GLADDEN. JUDY M. BRIGGS, AND CORY J. BRIGGfu_ OPPQSITION _ __ EXHffiiTS 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. L 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 first-class postage fully prepaid, and then I _deposited the envelope/package with the U.S. Postal Service L 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 ----·-----~U~p.,I.,a"n.,..d, California. __ by overnight delivery. I sealed the documents in an envelope/package provided by an overnight-delivery service and addressed to the person(s) at the address(es) indicated on the list, and then I placed the envelope/package for collection and overnight delivery in the service's box regularly utilized for receiving items for overnight delivery or at the service's office where such items are accepted for overnight delivery. __ by facsim ite 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-mail delivery. Based on an agreement of the parties or a court order, 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 of time 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_,{_ of the State of California Original Signed that the foregoing is true and correct. Date: _ _ _ _ _ March 17, 201±.___ Signature: 91 SERVICE LIST San Diegans for Open Government v. City of San Diego et al. San Diego County Superior Court case no. 37-2012-0088065-CU-MC-CTL _____________________________________________________ Carmen A. Brock Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 cbrock@sandiego.gov Attorney for Defendant City of San Diego Michael Colantuono & David J. Ruderman Colantuono & Levin, PC 11364 Pleasant Valley Road Penn Valley, CA 95946 mcolantuono@cllaw.us druderman@cllaw.us Attorneys for San Diego Tourism Marketing District 92 PROOF OF SERVICE Request for Publication of Creed-21 v. City of Wildomar (Wal?Mart) Court of Appeals Case No.: E066367 I, the undersigned, declare: I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 790 E. Colorado Blvd, Suite 850, Pasadena, CA 91101. On December 18, 2017, I served the document(s) described as: above is true and correct. i87906.1 LETTER FOR REQUEST FOR PUBLICATION OVERNIGHT DELIVERY: By overnight delivery, I placed such document(s) listed above in a sealed envelope, for deposit in the designated box or other facility regularly maintained by Federal Express or Golden State Overnight (GSO) for overnight delivery, caused such envelope to be delivered to the office of the addressee(s) on the attached service list via overnight delivery pursuant to C.C.P. ?1013(c), with delivery fees fully prepaid or provided for. BY E-MAIL OR ELECTRONIC TRANSMISSION: By transmitting via electronic mail with TrueFiling?s e-?ling service the document(s) listed above to those identi?ed on the attached service list. Or, based on a court order or an agreement of the parties to accept service by e?rnail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. BY MAIL: By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth on the attached service list: I declare under penalty of perjury under the laws Executed on December 18, 2017, at Los Angeles, SERVICE LIST Request for Publication of Creed-21 v. City of Wildomar (Wal-Mart) Court of Appeals Case No.: E066367 Cory Jay Briggs Briggs Law Corporation 99 East "C" Street, Suite 111 Upland, CA 91786 Amy E. Hoyt Burke Williams & Sorensen, LLP 1600 Iowa Avenue, Suite 250 Riverside, CA 92507 Keli Nicole Osaki Manatt Phelps & Phillips LLP 695 Town Center Drive, 14th Floor Costa Mesa, CA 92626-1924 187906.1