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Update from Ann M. Smith re PSC Litigation

Dear All:

Greetings!  Here is the latest news in the PSC litigation.

Our Complaint Filed 8/26/11 For 302 Plaintiffs

As you know, we filed and served our Complaint on August 26, 2011, raising multiple causes of action or legal claims against both the City and SDCERS related to the harm you have been caused by the so-called “PSC Correction Process.”  There are 302 individually-named Plaintiffs in this Complaint; since Rodito Abitria was the first Plaintiff listed in alphabetical order, the short-hand name of our case is Abitria, et al. v. SDCERS and City of San Diego.

A Second Complaint To Be Filed With Another 50 Plaintiffs

Since that filing, MEA has accepted another 50 litigants who will be named in a second Complaint to be filed in the near future.

There Are Four “Related” Cases

Our Abitria case is one of four cases which all relate to the PSC issues.  However, our Abitria case is the only one which states claims against the City in addition to SDCERS.

Under our local Court rules, a notice of related cases must be filed whenever a party files a Complaint and knows that other cases are also pending which involve all or some of the same parties and the same general subject matter.  As a result of this rule, we gave notice of the related cases which Michael Conger has filed and he gave notice of our case.

Mr. Conger has filed three cases against SDCERS only: (1) the Lenhart Safety Case — a separate case for Safety Members of SDCERS with two named Plaintiffs Patrick Lenhart and Daniel Stuber as proposed representatives of the class they seek to have established if the Court agrees after a hearing on SDCERS’ opposition; (2) the Lancaster Airport Authority Case — a separate case for Airport Authority Members with four named Plaintiffs Kelly Lancaster, David Boentiz, Mary Erikson and Richard Gilb as proposed representatives of the class they seek to have established if the Court agrees after a hearing on SDCERS’ opposition; and (3) the Baidya General Member Case — a separate case for General Members of SDCERS with four named Plaintiffs Ananta Baidya, Jon Coffman, Jennifer Smith and Carol Young as proposed representatives of the class they seek to have established if the Court agrees after a hearing on SDCERS’ opposition.

Judge Assignment

As a result of the “related case” local rule, the Superior Court must achieve economies and efficiencies by having all four related cases heard in the same Department by the same Judge.

On September 15, 2011, the City appeared ex parte in our Abitria case to seek a transfer of the case to Judge Nevitt who heard and granted the City’s Writ on the PSC issues in the first place back in December 2008.  Judge Nevitt’s decision was then affirmed by the Fourth District Court of Appeal.  The City argued that, since we are challenging the enforceability of the PSC Judgment in the City’s favor on equitable grounds, only Judge Nevitt has jurisdiction to hear our claims.   I opposed the City’s transfer request both in writing and orally at the hearing on the City’s transfer application.  The City’s request to transfer our case to Judge Nevitt was denied.

All four cases are now before Judge Ronald S. Prager in Department 71 at the Hall of Justice, 330 West Broadway.

City & SDCERS Have Both Responded to Our Complaint By Filing A Legal Challenge Called A “Demurrer”

The City and SDCERS were required to answer or otherwise respond to our Abitria Complaint no later than October 14, 2011.  The City Attorney’s Office (DCA Walter Chung) and SDCERS’ outside counsel (Dave Noonan) served me with their demurrers to our Complaint.   A “demurrer” is a legal challenge to our Complaint which argues that, even assuming all of the facts stated in our Complaint are true, there are one or more fatal defects in our legal theories which prevent us for establishing valid causes of action.  A “demurrer” thus tests the legal sufficiency of our Complaint.  In both instances, the City and SDCERS have asked that the Court sustain their demurrers and throw out our Complaint for failure to state any cause of action on which relief can be granted.

These demurrers were expected and the issues which both the City and SDCERS raise were predicted and predictable.  For them, this is the time to throw as much mud against the side of the barn as possible and see what (if anything) sticks.  You’ll love the City’s argument about fraud.  It goes essentially like this: sure, maybe there was fraud in April 2008 in connection with the Council’s failure to “authorize” Aguirre to maintain the Writ action over the PSCs, but it is the wrong kind of fraud when it comes to the relief we seek.   The City has certainly set out to achieve a new low even for it – “fraud” will do just fine if that’s what it takes to take pensions away from employees and retirees.

For those of you with an appetite to read and know more, the briefs filed by the City and SDCERS in support of their respective demurrers are attached.  [Please note that the date of the hearing on the City’s Brief is incorrect – see below.  It will be on 1/31/12 at 10:00 a.m.)

When reading these briefs, please remember that many of the assertions they make about the facts are just plain wrong.  You will see this if you compare what they have written to what I wrote in painstaking detail in our 59-page Complaint.   And, of course, it should not surprise you that I disagree with their legal analysis.  In some instances, the cases they cite do not in fact stand for the proposition they assert and/or these cases (when applied to our facts) do not dictate the result they seek.   It is beyond the scope of this message to offer and explain my rebuttal to all of their incorrect factual or legal assertions.  Please trust that I will be doing just that.

Hearing on City’s and SDCERS’ Demurrers Set for January 31, 2012, at 10:00 a.m. in Dept. 71, Hall of Justice

As further evidence of how back-logged the Courts are due to budget cuts and reduced staffing, the earliest hearing date Judge Prager could offer us on the City’s and SCDERS’ demurrers is Tuesday, January 31, 2012.  Although Judge Prager customarily hears matters of this type during a busy calendar every Friday, he set a special separate day (Tuesday, 1/31) to hear oral argument from us in this case.  He told us last Friday that he recognizes how important these cases are and assured us that he will give us the time and attention we need as the cases progress.  However, Judge Prager also cautioned that the press of his civil trial calendar is such that there could be a further delay in this hearing now set for January 31st.

My opposition briefs to these demurrers will be due on January 18, 2012.  The City and SDCERS will have the opportunity to reply to my arguments by further briefing due on January 24, 2012.


We will send a reminder later – as well as a copy of my Opposition Briefs and their Reply Briefs.

Conducting Discovery in the Meantime

Despite the fact that the hearing on the City’s and SDCERS’ legal challenges to our Abitria Complaint will not be heard until January 31, 2012, I intend to proceed with the “discovery” process in accordance with the procedures set up for all civil cases.  This means making requests for (1) sworn written answers to questions, (2) production of documents under penalty of perjury, and (3) taking depositions of key witnesses who are likely to have evidence in support of our claims.

That’s all for now . . . please take care of yourselves and do your best to keep the faith as we do our best to achieve justice in this case.  Warm regards, Ann M. Smith

ABITRIA – SDCERS – Ps and As ISO Demurrer to Plaintiffs_ Complaint – 10-14-2011
Abitria Ps&As