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com

LOUIS R. MILLER, State Bar No. 54141 ENDORSED

smiller@rnillerbarondess.com PiU31)
DANIEL S. MILLER, State Bar No. 218214 AL4MFDA COUNTY
dmiller@millerbarondess.com
BRIAN A. PROCEL, State Bar No.218657 SEP 2 ‘ ZOlO
bproeel@millerbarondess.com
MILLER BARONDESS, LLP CLERK oi ‘r SUPERIOR cour
1999 Avenue of the Stars, Suite 1000 By !rtovctt
Los Angeles, California 90067 Dy
Telephone: (310) 552-4400
Facsimile: (310) 552-8400

Attorneys for Plaintiff and Petitioner

SCC ALAMEDA PONT, LLC

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF ALAMEDA

11 RENE C. DAVIDSON COURTHOUSE
-C

0 12

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13 SCC ALAMEDA POINT, LLC, a limited CASE NO.
3 C,
z liability company,
0 14
z Plaintiff and Petitioner, VERIFIED PETITION FOR WRIT OF
-C
15 MANDATE AN]) COMPLAINT FOR
V. DECLARATORY RELIEF PURSUANT TO
16 GOVERNMENT CODE § 6258
-3
-J CITY OF ALAMEDA, a municipal corporation;
I—
0 17 the ALAMEDA REUSE AND [Declaration of Brian Procel filed concunently
C,
z REDEVELOPMENT AUTHORITY, a Joint herewith]
18 •Powers Authority; the COMMUNITY
IMPROVEMENT COMMISSION OF THE
19 CITY OF ALAMEDA, a public body corporate
and politic; LARA WEISIGER in her capacity as
20 City Clerk of Alameda; ANN MARIE
GALLANT in her capacity as Interim City
21 Manager of Alameda; and DOES 1 through 10,
inclusive,
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Defendants and Respondents.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
72U73.1
 1 Plaintiff and Petitioner SCC Alameda Point, LLC (“SCC Alameda”) alleges against the City

2 of Alameda (“the City”), the Community Improvement Commission of the City of Alameda

3 (“dC”), the Alameda Reuse and Redevelopment Authority (“ARRA”), Lara Weisiger, Ann Marie

4 Gallant, and DOES I through 10, inclusive (collectively, “Respendents”), as follows:

5 NATURE OFTHE ACTION

6 1. SCC Alameda has been forced to bring this action because Respondents—all

7 government entities and employees—are engaging in a pattern of conduct that can only be described

8 as a cover up and spoliation of evidence. The relatively brief tenure of Ann Marie Gallant, the

9 Interim City Manager of Alameda, has seen political infighting punctuated by witch hunts and other

10 wasteful endeavors, as well as attempts to conceal documents and information from the public, in

11 violation of the law.

12 2. The Alameda City Council has conducted numerous “closed session” meetings in an

: 13 attempt to prevent the dissemination of information on matters of public interest. And, at the urging

. 14 of Ms. Gallant, the City Attorney’s office conducted a sixmonth “investigation” of a City Council
z ,:,ii
s 15 Member for allegedly disseminating “confidential information” (only to have the District Attorney

16 refuse to bring charges). These bad faith tactics have resulted in a loss of resources, as well as a loss

17 of confidence in the City’s public officials,

18 3. Now, Respondents have decided to withhold public records that were specifically

19 requested by SCC Alameda pursuant to the Public Records Act (“PRA”). Respondents have

20 provided no explanation for their failure to produce these documents. In fact, Respondents have

21 improperly withheld entire categories of emails sent by and to the City Manager of Alameda and

22 other elected officials. To date, Respondents have produced approximately 800 pages of emails that

23 appear to have been printed exclusively from the email accounts of two individuals: Matthew

24 Naclerio, in the Department of Public Works, and Lara Weisiger, the City Clerk. Respondents have

25 not produced any emails from the accounts of Ms. Gallant or the City Council Members. And it is

26 inexcusable that, despite repeated requests from SCC Alameda’s counsel, Respondents refuse to set

27 forth their policy regarding the retention of emails.

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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
72173.1
 I 4. This action seeks to put an end to Ms. Gallant’s brazen attempt to conceal documents
2 and spoliate evidence. SCC Alameda—and the public—have a right to this information by virtue of

3 California statutory law. SCC Alameda respectfully requests that the Court order Respondents to

4 comply with their obligation to produce documents pursuant to that law—the Public Records Act.

5 PARTIES
6 5. SCC Alameda is a Delaware limited liability company with its principal place of
7 business in Orange County, California.

8 6. The City of Alameda is a charter law city duly organized under the laws of the State
9 of California.

10 7. On information and belief; Lara Weisiger is an individual residing in the City of

11 Alameda and currently serves as the City Clerk of Alameda.

12 8. On information and belief, Ann Marie Gallant is an individual residing in the City of
13 Alameda and currently serves as the Interim City Manager of Alameda.

14 9. The Alameda Reuse and Redevelopment Authority is a Joint Powers Authority

a 15 established by the City of Alameda and the Community Improvement Commission under the

16 California Joint Exercise of Powers Act.

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‘ 17 10. The Community Improvement Commission of the City of Alameda is a public body
18 corporate and politic.
19 11. SCC Alameda is informed and believes, and on that basis alleges, that Respondents
20 DOES I through 10, inclusive, are individually and/or jointly liable to SCC Alameda for the wrongs

21 alleged herein. The true names and capacities, whether individual, corporate, associate or otherwise,

22 of Respondents DOES I through 10, inclusive, are unknown to SCC Alameda at this time,

23 Accordingly, SCC Alameda sues Respondents DOES 1 through 10, inclusive, by fictitious names

24 and will amend this Complaint to allege their true names and capacities after they are ascertained.
25 JUffiSDICTION AN]) VENUE
26 12. This Court has jurisdiction to issue writs of mandate pursuant to Code of Civil
27 Procedure section 1085, and in the case of the Public Records Act, pursuant to Government Code
28 section 6259, subdivision (a). The Court has jurisdiction to grant declaratory relief pursuant to Code
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
72173.1
 I ofCivil Procedure sections 525, 526, and this Court also has jurisdiction to grant declaratory relief
2 pursuant to Government Code section 11350.

3 13. Venue is proper in the County of Alameda pursuant to Code of Civil Procedure
4 section 393, subdivision (b).
5 FACTS
6 I. The Alameda Point Agreement and Lawsuit
7 14. On or about July 18, 2007, SCC Alameda entered into an agreement with the City
8 providing for exclusive good faith negotiations and cooperation toward approval of entitlements for
9 development of a major residential/commercial/retail project adjacent to San Francisco Bay. In
10 furtherance of that contract, SCC Alameda has expended in excess of $17 million and thousandsof
11 hours of: work over the preceding three years.
12 15. Notwithstanding the express terms of the agreement and the substantial amount of
13 time and money invested by the parties, Ms. Gallant and members of her staff have acted in bad faith
14 and duped and defrauded the public and other members of City government, portraying SCC

P 15 Alameda in a false light and viliing SCC Alameda and its development plan. Indeed, SCC
16 Alameda was supposed to “partner” with the City in the development of Alameda Point for the
17 benefit of the community. But Ms. Gallant has gone in the opposite direction, sabotaging the
18 process for her own self-serving, corrupt, fraudulent purposes, and failing and refusing to negotiate
19 in good faith as legally as required by contract.
20 16. On July 20, 2010, the City of Alameda prematurely and precipitously accelerated the
21 entitlement process in violation of its own municipal code and rejected SCC Alameda’s entitlement
22 application. This occurred before the environmental review and other aspects of the entitlement

23 process could be completed. Ms. Gallant, in league with others, caused the ouster of SCC Alameda
24 from the project.
25 17. As a result, SCC Alameda filed a federal court action for breach of contract and
26 violation of SCC Alameda’s constitutional rights under the Contract Clause of the United States
27 Constitution. That lawsuit is pending.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
72173.1
 1 II. SCC Alameda’s Public Records Act Request
2 18. SCC Alameda served a Public Records Act Request on the Office of the City Clerk,
3 Alameda City Hall dated July 12, 2010 (“PRA Request”). The PRA Request contains 20 different

4 categories of requests that seek the production of documents from January 1, 2006 through July 12,

5 2010. Among the categories of documents listed in the PRA Request are emails from the accounts

6 of the City Council Members and Ms. Gallants. On information and belief, to date, Respondents
7 have failed to produce even a single email or document from the accounts of the City Council
8 Members or Ms. Gallant.
9 19. The City sent an initial letter in response to the PRA Request on July 23, 2010. In
10 that letter, the City purported to address each category of documents identified in the PRA Request.

11 However, the City failed to identify any documents being withheld on the basis of any privilege or

12 objection, nor did the City state its intention to produce any emails.

13 20. On August 5, 2010, City Attorney Teresa Highsmith sent a letter to SCC Alameda
14 indicating that documents would be made available. The August 5 letter also attaches alist of

a 15 electronic files that would be included in the City’s production. The list of electronic files does not
16 include emails or other electronic communications.
17 21, Louis R. Miller, counsel for SCC Alameda, sent a letter to Ms. Highsmith dated
18 August 26, 2010, in which he stated: “[W]e have learned that the City andlor its employees have a
19 practice of deleting emails every few weeks.” Mr. Miller further instructed that it would be unlawful
20 to automatically delete emails because a lawsuit was pending against the City.
21 22. In a letter dated September 2, 2010, Senior Assistant City Attorney Donna Mooney
22 evasively contended that the City has compiled documents that are responsive to SCC Alameda’s
23 PRA Request and that “[n}one of these documents will be deleted or destroyed.” Ms. Mooney did

24 not comment on the City’s email retention policy, nor did she deny that the City was automatically
25 deleting emails.
26 23. Following the September 2, 2010 letter from Ms. Mooney, counsel for SCC Alameda
27 Brian Procel called the City Attorney’s office on an almost daily basis, but he was unable to reach
28 anyone. On or about September 10, 2010, Mr. Procel finally reached Ms. Mooney by telephone.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
72173.1
 1 She stated to Mr. Procel that he needed to speak with Ms. Highsmith directly regarding the Public
2 Records Act request.
3 24. Ms. Highsmith sent another letter to SCC Alameda on September 16, 2010. She
4 reiterated the City’s position that no responsive documents were being deleted or destroyed; In that

5 letter, Ms. Highsmith refused to set forth the City’s policy regarding the retention and production of
6 emails.
7 25. SCC Alameda responded in a letter dated September 16, 2010, again requesting that
8 Ms. Highsmith set forth the City’s email retention policy, and stating that it is improper for Ms.
9 Highsmith to conceal that information from the public.
10 26. To date, Respondents have never attempted to set forth the City’s email retention
11 policy.
12 27. On or about September 21, 2010, SCC Alameda copied hard copies of documents and
1.3 a CD-Rom that were made available by the City. These documents included emails, as well as
14 documents related to the Alameda Point project. The emails appear to have been produced
g 15 exclusively from the accounts of Ms. Weisiger and Mr. Naclerio. Respondents have yet to produce
16 any emails from the accounts of the City Council Members or Ms. Gallant.
17 28. SCC Alameda believes this is intentional and that Ms. Gallant and the other
18 Respondents are concealing and/or destroying emails in violation of law. SCC Alameda has done
19 everything possible to obtain the requested documents, but is being stalled and stonewalled by the
20 Respondents.
21 29. Furthermore, on information and belief, Alameda officials use their personal
22 computers and servers for City communications, and Respondents are withholding and concealing
23 responsive emails and other documents on the basis that they need not produce communications
24 stored on their personal computers. This subterfuge is also contrary to law.
25 30. On information and belief, Respondents are not in compliance with the Local
26 Government Records Management Guidelines dated February 2006 adopted by the Secretary of
27 State pursuant to the California Government Code, including but not limited to, Exhibit A, which
28 requires that all correspondence exchanged by city officials be retained for a minimum of two. years.
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VERIFIED PETITION FOR WRiT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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 I 31. Respondents are also in violation of Government Code section 6253(c), which
2 requires that a government entity produce all requested records pursuant to a PRA request within 24

3 days. Respondents have now exceeded 70 days, and their production is still grossly insufficient.

4 III. Public Records Request of Lauren Do.

5 32. On or about July 7, 2010, an individual named Lauren Do sent a request to the City
6 pursuant to the Public Records Act. In that request, Ms. Do sought the production of “all emails by

7 City Council Members Frank Matarrese, Marie Gilmore, Doug deHaan as well as for Mayor Beverly

8 Johnson from their City email addresses.. .in the last six months...”

9 33. On or about July 19, 2010, City Attorney Highsmith responded by indicating that:
10 The City has two e-mail systems: one is called Alameda Access, which was created to
facilitate electronic communication between the community and City officials (employees
11 and electeds, alike); every email within the Alameda Access is public record and is stored in
off-site servers operated by the consultant who manages this program.
12
The City Clerk has the ability to check the emails by “sender’
1 and has determined that there
13 have been no emails sent by any member of the City Council, including the Mayor, within
the last 6 months.
The City s other email system is the mternal Groupwise system, and each Councilrnember
15 (including the Mayor) does has a City email address. Unlike the off-site Alameda Access
system, the City of Alameda does not have the server space to retain the emails.
16 Accordingly, the emails within the City’s Groupwise system are systematically and
j automatically purged by IT every 30 days; therefore, they are considered “drafts
1 and are
17 exempt from disclosure pursuant to Govt. Code Section 62 54(a). Of course, many emails are
actually preserved both in hard copy or electronically, and we are in the process of checking
18 with each Councilmember to determine if they have, in fact, saved (either via hard copy or
electronically) any emails which may fall within your PRA request. As of this date, I have
19 not heard back from every Councilmember,, and so I do not yet know if there will be
documents which are responsive to your request. I believe that an additional 10 days will be
20 sufficient time to determine this, and if I have the information prior to the additional 10 days
period, I will certainly contact you then.
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34. Despite its admission that the emnails exist, the emails regarding Ms. Gallant and the
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City Council members have not been, and are not being, produced; and they are the critical ernails
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being sought. The PRA does not allow for selective production and manipulation of the PRA
24
process.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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 1 FIRST CAUSE OF ACTION
2 (Petition for Writ of Mandate)
3 35. SCC Alameda realleges and incorporates herein by reference each of the foregoing
4 paragraphs and each of the subsequent paragraphs, and further alleges as follows:
5 36. In enacting the.Public Records Act at Government Code section 6250 et seq. (the
6 “PRA”), the Legislature recognized that “access to information concerning the conduct of the
7 people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code,
§
8 6250.)
9 37. It is essential that the requested public records be provided “promptly” (Gov. Code §
10 6253(b)). The “times for responsive pleadings and for hearings” in PRA cases must be set “with the
11 object of securing a decision as to these matters at the earliest possible time” (Gov. Code
§ 6258).
12 38. Government Code section 6258 provides that “[a]ny person may institute proceedings
13 for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to
14 enforce his or her right to inspect or to receive a copy of any public record or class of public records

g 15 under this chapter.” (Gov Code § 6258.)

39. On July 12, 2010, SCC Alameda requested copies of particular public records from
16
17 the City to the PRA. This Request is attached hereto as Exhibit A.
18 40. On September 21,2010, the City produced some documents, but it has withheld all
19 emails from the accounts of the City Council Members and Ms. Gallant.
20 41. The City violated the PRA by failing to produce all non-privileged, non-exempted
21 public records requested by SCC Alameda.
22 42. Respondents have a clear, present, and ministerial duty under the Public Records Act,
23 including, inter alia, Government Code section 6253, to promptly search for and produce all non-
24 privileged, non-exempted public records pursuant to the PRA Request.
25 43. SCC Alameda has no plain, speedy, and adequate remedy in the ordinary course of
26 law, in that no damages or other legal remedy could compensate it for the failure to provide
27 documentation relating to the issues relevant to the Alameda Point project and the Alameda officials
28 involved therewith.
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VERIFIED PETiTION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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 44. SCC Alameda has followed all required and available administrative procedures
2 available to it to compel the City to comply with the requirements of the PRA. No administrative
3 process exists allowing SCC Alameda to appeal the City Attorney’s failure to comply with the PRA
4 to an appellate administrative or legislative body. By complying with all the requirements of the
5 PRA applicable to SCC in pursuing its PRA Request, SCC Alamedahas exhausted all available

6 administrative remedies.
7 SECOND CAUSE OF ACTION
8 (Declaratory Relief)
9 45. SCC Alameda realleges and incorporates herein by reference each of the foregoing
10 paragraphs and each of the subsequent paragraphs, and further alleges as follows:
11 46. An actual controversy has arisen and now exists between SCC Alameda and
12 Respondents. Respondents are concealing material documents that are the property of the
13 government and that the public at large has the right to see under the Public Records Act,

.
. 14 47. SCC Alameda contends that under the law, all the emails requested per the PRA
15 Request must be produced immediately, whereas Respondents contend to the contrary.
16 48. A judicial declaration is necessary and appropriate at this time to determine whether
17 Respondents must produce the requested documents and whether Respondents are in violation of the
18 PRA.

19 PRAYER FOR RELIEF

20 WHEREFORE, SCC Alameda respectfully prays for judgment against the City, and each of

21 them, as follows:
22 1. Immediately produce copies of all non-privileged, non-exempted public records
23 requested in SCC Alameda’s July 12 Request.
24 2. For attorney’s fees pursuant to Government Code section 6259(d) and Civil
25 Procedure Code section 1012.5.

26 3, For costs of suit; and

27 4. For such other and further relief as the Court may deem just and proper.
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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 I DATED: September 22,2010 MILLER BARONDESS, LLP

3 By
4 7 Louis K, Miller
L Attorneys for Petitioner
Sec ALAMEDA POiNT, LLC
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VERTFIED PETITION FOR WRIT OF MANDATE ANT) COMPLAINT FOR DECLARATORY RELIE
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 VERIFICATION
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I have read the document described below and know its contents:
4 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR
5 DECLARATORY RELIEF PURSUANT TO GO VERNME’NTCODE 6258
6

7 — I am a party to this action. The matters stated in the foregoing document are true of my

8 knowledge except as to those matters which are stated on information and belief, and as to those

9 matters I believe them to be true.

10 X I am an officer of SCC ALAMEDA POINT, LLC, a party to this action and am authorized to
11 make this verification for and on its behalf, and I make this verification for that reason. The matters

12 stated in the foregoing document are true to my own knowledge except as to those matters that are

13 stated on information and belief, and as to those matters I believe them to be true.

z
15 I declare under penalty of perjury under the laws of the State of California that the foregoing is true

16 and correct

18 Dated: September 22, 2010

19 Bruce Cook
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VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAiNT FOR DECLARATORY RELIEF
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