Yucaipa City Clerk Ana Sauseda last year initiated a lawsuit that was intended to prevent at least 194 of the city’s residents from engaging in the public political participation process, Judge Michael Sachs ruled on Wednesday.
Sauseda’s legal challenge came in reaction to an attempt, officially initiated with paperwork filed with her office in May signaling that the residents in question intended to circulate petitions to recall Mayor Justin Beaver and councilmen Bobby Duncan and Matt Garner after they abruptly moved to terminate longtime City Manager Ray Casey and City Attorney David Snow in January 2023.
Largely as a result of Sauseda’s lawsuit, the recall proponents ceased their effort and did not reach the goal of collecting the 1,623 signatures needed to qualify a recall question against Beaver, the 1,478 signatures needed to qualify a recall question against Duncan and the 1,826 signatures needed to qualify a recall question against Garner, which had to be returned to Sauseda’s office by August 16 to force the holding of a special election in which those questions would appear on the ballot.
Though Sauseda’s suit has now been dismissed, opening the possibility that she and the city will need to reimburse the recall proponents for their legal costs in fighting the suit, the stratagem, which was not devised by Sauseda but rather City Manager Chris Mann and two lawyers for the Los Angeles-based Sutton Law Firm, Bradley W. Hertz and Eli B. Love, succeeded in protecting Beaver, Duncan and Garner from being subjected to a process that potentially would have removed them from office.
The recall proponents have reinitiated a recall effort against Duncan and Garner, amid widespread speculation that Beaver will not seek reelection later this year. Based upon Judge Sach’s ruling relating to the lawsuit Sauseda filed last year, it does not appear that she will again attempt to use her authority as city clerk and the city’s election official, which the recall proponents maintain she abused, to file another lawsuit in an effort to block the now ongoing recall attempt.
The genesis of the contretemps in Yucaipa extends back at least to the evening of October 23, 2022, when the Yucaipa City Council as it was then composed at its last meeting before the November 2022 election voted to extend City Manager Ray Casey’s contract until June 2024. That council consisted of Greg Bogh, David Avila, Justin Beaver, Bobby Duncan and Jon Thorp. At the time of that vote, Bogh and Avila were lame ducks, as they had both opted against running for reelection in the following month’s municipal election. In the November election, Matt Garner proved the top vote-getter in the race to replace David Avila in the First District and Chris Venable won in a two-person race to supplant Greg Bogh in the Second District.
Unbeknownst to the electorate, prior to the election a discussion had taken place between then-candidate Garner and both Beaver and Duncan in which they had discussed removing Casey as city manager in the event that Garner’s election bid was successful. At some point after Garner was elected but before he was sworn into office in December 2022, the trio had confirmed that commitment.
On January 9, 2023, the first substantive meeting of the Yucaipa City Council with Garner and Venable as members, was held. Outside City Hall, Steven Graham, the city attorney with the City of Canyon Lake, and Chris Mann, the city manager with the City of Canyon Lake. a member of the Yucaipa Water District Board of Directors and the principal in Mann Communications, were lurking in the in the Civic Center parking lot. After adjourning with the other two council members into a closed session conducted outside the scrutiny of the public shortly after the meeting began, Beaver, Duncan and Garner pressured Casey into resigning and moved to conduct a vote to terminate City Attorney David Snow. The vote to accept Casey’s resignation was 3-to-2, with Beaver, Duncan and Garner prevailing and Thorp and Venable dissenting. The council then voted 5-to-0 to fire Snow. At that point, Graham turned up in the council chamber and began functioning as Yucaipa’s City Attorney. The council thereafter voted 4-to-1, to offer the position of city manager to Mann. Yucaipa Water District Board of Directors, and the principal in Mann Communications.
Nearly two score Yucaipa residents who had been alerted at the last minute that something was in the offing had shown up at the meeting, several of whom had hoped to be able to talk the council out of getting rid of Casey, a Princeton-educated civil engineer with extensive public works experience in governmental and municipal settings and construction experience in the private sector. He had served as Yucaipa’s city engineer/director of public works for five years beginning in 2003 before he was promoted to the position of city manager in 2008. The crowd’s efforts at intercession had been to no avail, and Casey ignominiously joined the ranks of the unemployed or retired or both.
With Mann and Graham on hand for the meeting and Graham assuming the role of city attorney on the spot without any forewarning, there were immediate accusations that a violation of The Ralph M. Brown Act, California’s open public meeting law, had taken place. The Brown Act prohibits a quorum of an elected governmental body or an appointed governmental body with decision-making authority from meeting, discussing any matter to be decided or voted upon or coming to a consensus in any way about a matter to be voted upon outside of a public forum. The Brown Act allows less than a quorum of an elected body – as in the case of the five-member Yucaipa City Council, two members – to meet and discuss some contemplated action to be voted upon, but it prohibits either of those two members from engaging in a “serial” meeting of a quorum, whereby one of those members then separately meets with another member to discuss the upcoming action or vote.
Residents who were opposed to what was tantamount to Casey’s sacking reasoned that a Brown Act violation had to have taken place, as Graham was on hand for the meeting before he was hired as city attorney and, likewise, Mann was immediately present, in anticipation of the action the council ultimately took.
The council majority would eventually form a response to the Brown Act violation accusation that held no such violation had occurred since the collusion with regard to Casey’s forced exit and Snow’s firing had taken place prior to Garner being sworn in as a member of the city council, such that when that plotting took place, the three did not constitute a quorum of the city council.
For those upset at Casey’s departure, that defense was one that relied on a distinction without a difference and constituted an admission of duplicity on the part of the three, given Beaver’s and Duncan’s October 23 vote to extend Casey’s contract and Garner’s failure to inform the community of his intention with regard to the city manager prior to his election.
Moreover, many Yucaipa residents, acutely conscious that their 27.8-square mile, 55,495-population city at present is less densely populated than 13 of San Bernardino County’s 24 incorporated municipalities, were concerned that the council majority is set on allowing aggressive development to occur, allowing the city’s largely rural nature to be eradicated and replaced by “stack and pack” subdivision after subdivision that would make Yucaipa indistinguishable from scores of other cities in Southern California that are now composed, practically, of wall-to-wall houses. Mann owns Mann Communications, which touts itself as a mouthpiece for the development industry. Residents believed putting him in place as city manager presaged just such a development frenzy.
A recall committee formed, and some 193 city residents lent their names as sponsors of the effort, with
62 residents of District 4 signing the notice of the intention to circulate the recall petition against Justin A. Beaver, 67 residents of District 3 signing the notice of the intention to circulate the recall petition against Bobby Dean Duncan and 64 residents of District 1 signing the notice of the intention to circulate the recall petition against Councilmember Matthew Gabriel Garner.
Reasons given for seeking the recall against each of the three were that they had acted to terminate Casey and had violated the Brown Act in doing so.
In the aftermath of Casey’s departure and the hiring of Mann, Mann replaced the city clerk who had been in place under Casey, Kimberly Metzler, with his own choice, that being Ana Sauceda, whom he had previously promoted to city clerk when she was employed at the City of Canyon Lake.
To protect his political masters on the city council, Mann formulated a strategy of hiring the Los Angeles-based Sutton Law Firm, using city money, to represent Sauseda as plaintiff, acting in her capacity as the city’s chief elections officer, in a lawsuit challenging the validity of the recall effort.
The opportunity to file such a lawsuit had come about only briefly prior to the issues at hand had taken place. In reaction to the 2021 effort to recall Governor Gavin Newsom, a Democrat, the California Legislature, which consisted of Democrat supermajorities in both the Assembly and State Senate, passed Assembly Bill 2584 in 2022. Assembly Bill 2584 became law on January 1, 2023. It permitted an elections official in a relevant jurisdiction to “seek a writ of mandate or an injunction requiring any or all of the statement of the proponents or the answer of the officer included with the petition to be amended or deleted. The writ of mandate or injunction request shall be filed no later than the end of the 10-day public examination period.” Assembly Bill 2584 stated, “A peremptory writ of mandate or an injunction shall issue only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter.”
According to the suit as authored by two of the Sutton Law Firm’s attorneys, Bradley W. Hertz and Eli B. Love, the recall proponents could not prove their allegation that a Brown Act violation had occurred with the forced departure of Casey, and the recall proponents’ separate accusations against Beaver, Duncan and Garner that each had acted to terminate Casey and Snow was not true since no single one of them had such authority and the actions to relieve Casey of his city manager’s post and fire Snow were ones taken collectively by the entire city council body. The lawsuit was presented as adhering to recently passed law, AB 2584, allowing Sauseda to contest the accuracy of the stated grounds for a recall. Sauseda’s suit, was filed against all 193 of the recall proponents.
To augment that effort, Mann had Joseph Pradetto, whom he had hired to serve as Yucaipa’s director of governmental affairs and official spokesperson, intensify the intimidation level against the recall proponents. Pradetto, in trumpeting to the Yucaipa community that the recall proponents were being sued by the city clerk, publicly stated, “In addition to the provisions of AB 2584, Sauseda also cautions recall proponents that, ‘Per Elections Code section 18600, it is a misdemeanor offense to circulate or obtain signatures on a recall petition that intentionally misrepresent (sic) or make (sic) false statements.’”
Faced with the distraction of the lawsuit and stood off by Pradetto’s threat to have them jailed for persisting with the recall effort, recall proponents fell far short of gathering, by the August 16, 2023 deadline, the minimal 1,826 valid signatures from among District 1’s 7,303 registered voters to qualify a ballot item on recalling Garner, the minimal 1,478 valid signatures of the 5,912 registered voters in District 3 to qualify a ballot item on recalling Duncan and the minimal 1,623 valid signatures from among the 6,492 registered voters in District 4 to qualify a vote on recalling Beaver.
The ploy of having the Sutton Law Firm prepare the writ of mandate and getting Sauseda to serve as the plaintiff had succeeded in staving off the recall effort, preserved Mann, Graham, Sauseda, Pradetto and any other hirees Mann had brought in as city manager, city attorney, city clerk, city spokesman and whatever positions those hirees assumed and in dividing the recall proponents. Some of the recall proponents were so intimidated by having been dragged into court and by Pradetto’s threat of having them prosecuted that they simply wanted to desist and bug out, so to avoid expense and potentially going to jail. Others were less intimidated than they were fed up with the complication the effort and the circumstance entailed, and they merely sought to move on with their lives. Others, however, were neither daunted nor dissuaded, and remained committed to redressing the miscarriage of governance growing out of what they saw as an illegal series of events that the council majority had engaged in with the assistance of Mann and Graham before and after the fact and Hertz, Love, Sauseda and Pradetto after the fact. A handful of them retained James Penman, who had been the San Bernardino City Attorney for more than a quarter of a century as their legal representative.
From the outset of the litigation, the clock was running on the Sutton Law Firm’s billing of the city for Hertz’s and Love’s legal work. Having achieved the goal of thwarting the recall, Beaver, Duncan, Garner, Mann, Graham, Sauseda, Hertz and Love were proposed to simply dismiss the lawsuit. However, with Penman representing some of the defendants, the city – in particular Sauseda, Graham and Mann – faced the unpleasant prospect of the city being in the position of having to pay not only for the Sutton Firm’s legal work but the lawyers’ fees the defendants in the case had sustained if the matter were to simply be dismissed on a motion by the plaintiff. Moreover, simply dismissing the case with the demise of the recall effort would be construed by virtually anyone looking at the totality of the circumstance that the lawsuit was merely a manipulation of the legal system to interrupt the recall effort. Consequently, Sauseda refrained from dismissing the suit, and for four months, from September through October, November December and to the end of January, the matter drug on, costing the taxpayers and the defendants money.
In the meantime, through Penman, several of the defendants pushed to contest the allegations in the lawsuit and to have it dismissed on its merits or lack thereof. Paralleling that was a so-called SLAPP motion by one of the defendants, Colleen Wang, who had been one of the 64 signatories of the intent to circulate a recall petition against Garner document. A SLAPP motion is a request by a defendant in a civil action for a finding that the cause of action cited in a lawsuit against him or her is activity that is a form of protected free speech or activity protected under the U.S. or California Constitution which is therefore not actionable, i.e., subject to being legally contested. In Wang’s case, it was her assertion that in signing on to the recall effort, she was engaging in an effort to seek redress of grievance using a methodology preserved for her and other citizens under the law, namely recalling an elected official from office, the process for which is outlined in the California Government Code.
The recall proponents had also lodged a complaint with the San Bernardino County Civil Grand Jury based upon the issue that had sparked the recall effort, that being the termination of Casey with virtually no warning followed by the hiring of Mann without any sort of competitive recruitment process for the city manager post in a way that appeared to have been a violation of the Brown Act. Ultimately, in its end-of-calendar-year report, the Grand Jury, while avoiding delving into the issue of whether a Brown Act had occurred or not, delivered its findings with regard to the way the city council majority tolerated by the remainder of the city council had jettisoned Casey less than three months after having extended his contract 20 months. According to the Grand Jury, “[T]he council immediately replaced the city manager with its pre-selected choice. The council didn’t require applicant vetting; indeed, it didn’t require any applicants at all. The council didn’t interview other qualified applicants; there were no other applicants to be considered for such an important decision. Even before the city council vote, the soon-to-be appointed new city manager (and city attorney) waited in the parking lot outside the council chambers, to be called into the meeting and introduced to the council. These city council actions blindsided many residents; their outrage followed, soon to be fueled by additional questionable actions. Many Yucaipa citizens are incensed. They do not believe the city council demonstrated adequate concern for their objections…[and] believe that the council acted with a lack of transparency when it replaced the former city manager and city attorney, with pre-selected people, without much notice to or input from the community.”
The grand jury observed that with the recall effort having failed, the judge hearing the lawsuit brought by Sauseda concluded that the matter being litigated “is deemed moot.” Despite that, the grand jury noted that Sauseda continued pursuing the lawsuit, which the grand jury said is perpetuating the community’s distrust of city government.
“As of the writing of this report, the office of the city clerk had not agreed to dismiss the petition for writ of mandate, despite the fact that the judge deemed the matter moot,” the grand jury stated. “Nevertheless, the Office of the Yucaipa City Clerk, with retained counsel, decided to move forward with the lawsuit. If the city clerk’s office continues on this path, Yucaipa likely will spend thousands of dollars in attorney fees and the defendants, residents who had signed the recall petitions, may spend thousands more on their own attorney fees. These actions may further erode the public trust and the Yucaipa City Council itself must share some of the blame. Since the new council term began in 2023, the Yucaipa City Council has developed a reputation among many residents of ignoring the concerns of the public and of fostering an atmosphere of mistrust, disdain, anger, resentment, lack of transparency and appearances of conflicts of interest.”
In responding to the grand jury report, Mayor Justin Beaver seized upon that body stopping short of making any finding of criminal wrongdoing to state, “After nearly an entire year of public upset and scrutiny, the County Civil Grand Jury has confidently declared our city council violated no laws.” Mann and Pradetto insisted that the same could not be said of the grand jury itself, which had violated the law in the way it went about investigating the city, they said.
Not only were the grand jury’s findings that the city council majority had engaged in action which alienated residents and resulted in a level of distrust that undercut the credibility of city governance in Yucaipa erroneous and unjustifiably critical of the city and the city council, they were “based on an incomplete investigation and understanding of the laws and standard practices applicable to local government,” which constituted either a civil or criminal violation on the part of the grand jury itself.
“The grand jury report violates state law,” Mann and Pradetto said. “By not interviewing the city manager, the grand jury report not only contains antiquated and incorrect information, but it also violates provisions of the California Penal Code. As the chief executive officer of the public agency that is the subject of the report, the city manager must be interviewed. Under Penal Code Section 933.05(e), an opportunity to address the grand jury is mandatory unless the court determines that such an interview would be detrimental to the investigation. Interviewing the city manager is a basic step in completing a comprehensive and fair investigation. Failing to do so has resulted in a report rife with factual inaccuracies.”
Thus, 2013 closed out with City Hall seemingly having the last say over the controversy.
On Wednesday, however, Judge Michael Sachs, who was overseeing the lawsuit filed by Sauseda against 193 of the city’s residents, entered a tentative ruling in favor of the defendants and simultaneously granted Wang’s SLAPP motion against Sauseda and the City of Yucaipa, allowing attorney fees to be awarded, and finding that the grounds for the recall were truthful.
Judge Sachs stated from the bench, “In my humble opinion, she [Sauseda] could have avoided this. The city could have avoided incurring costs. The respondents who are essentially exercising their constitutional rights, would not have had to incur costs. And this seems to me to be a waste of funds, both public funds and private funds. Frankly, we can’t afford to be doing that in this time of need.”
Wang had established that she, like the other recall proponent defendants, was acting in the capacity of a citizen seeking to apply her constitutional rights by trying to qualify a recall measure, in her case, against Garner, the judge said.
“First, I know that the respondent/defendant bears the burden of demonstrating and establishing the challenged cause of action is one arising from protected activity,” Judge Sachs stated. “I have already commented on the fact that I believe that is the case here. All this particular respondent did was sign the recall petition. If that’s not an expression of a constitutional right, I’m not sure what would be. That [signing the notice of intent to start the recall process] is an example of her exercise of free speech. And the purpose of the anti-SLAPP statute is to protect free speech. She [Colleen Wang] also states after reviewing the petition and agreeing the content matched her own impressions, she added a signature and authorized submission of the paperwork. On May 18. 2023, petitioner [City Clerk Sauseda] sent a letter informing the proponents she had approved and accepted the proposed petition in all but one respect. That one respect was as follows: ‘that the statements of the grounds for the recall contain false and or misleading information,’ closed quotes. At the end of that letter, the petitioner notified each of the proponents that she had commenced the lawsuit.”
Judge Sachs then delivered the coup de grace, stating, “Again, regarding the arguments, it’s pretty clear to the court the arguments being made by the respondents [recall proponents], that they were exercising their civil rights, that they did not assert anything that was false or untrue. Here, I would note that the assertions on the recall petition by the petitioner are not false and are inherently political writings. Petitioner admitted that Councilmember Garner did vote to terminate the city attorney. So again, I’m going to find the petitioner has not met her burden. I would be granting the anti-SLAPP. As to the attorney’s fees, this is not an attorney fee hearing. I’m not here to make any findings regarding attorney’s fees [for the other 192 defendants]. However, I am noting that Ms. Wang would be entitled to attorney’s fees. Just so the record is clear, I have found that Wang has met her threshold showing that the complaint arises from a protected activity.”
The Sentinel sought Sauseda’s reaction to the ruling. She deferred all comment to Pradetto.
According to Pradetto, like the grand jury before him, Judge Sachs’ analysis of the situation in Yucaipa was faulty and error-prone.
“Regarding the January 31st ruling in favor of one of the recall proponents, we disagree with the way Judge Sachs analyzed the facts and the law, and we stand by the city clerk’s decision to challenge the recall proponents’ statements on the grounds that they were false and misleading. California Elections Code Section 11042.5 expressly authorizes the city clerk to ask the court to delete or amend false or misleading recall petition language.”
Pradetto, who last year had authored a letter intimating that the recall proponents could be prosecuted for engaging in what were characterized as false statements in the intent to circulate recall petitions documents, thereby persuading many of the proponents to give up on their effort, said, “The bottom line is that, after the lawsuit was filed, the recall proponents backed away from their statements.” He did not acknowledge that Judge Sachs had entered his finding pursuant to his tentative ruling that the statements contained in the intent to circulated recall petitions documents were true.
“Since then,” Pradetto said, “they have refiled their recall paperwork with very different statements. The city clerk did her job by challenging the earlier statements pursuant to the Elections Code, thereby protecting the city’s voters from false and misleading information that would have tainted the recall process.”
City officials, least of all Sauseda and Mann, can hardly be faulted for having latched onto the newly created Government Code Section 11042.5 (b) 1 & 2 created with the passage of Assembly Bill 2584 in seeking to prevent Beaver, Duncan and Garner from the wrath of the city’s residents over the cashiering of Casey, Pradetto said.
“As the City Clerk’s lawsuit was the very first one brought under a brand-new law, no-one was sure how the court would approach the case,” Pradetto said.
Moreover, Pradetto suggested, it was the recall proponents who had lost their nerve and faith in a cause they had not fully thought through before initiating.
“We are disappointed that court proceedings never got to the point where a ruling was issued on the merits of the case, as recall proponents mooted the case by failing to circulate and file petitions within the prescribed timeline, thus effectively ending the original recall attempt,” he said.
Chris Robles, the spokesman for Save Yucaipa, which is synonymous with the remaining members of the community seeking the recall of Beaver, Duncan and Garner, said, “Yucaipa recall proponents received full vindication in their fight against Yucaipa City Clerk Ana Sauseda when Judge Sachs said that arguments being made by the recall proponents while exercising their civil rights, ‘did not assert anything that was false or untrue,’ as she alleged in her May 17, 2023 lawsuit.
Wang said, “Today’s verdict is a win for our right to recall, our First Amendment rights and our right to criticize our elected officials. It’s a huge loss to the city council who chose to attack residents rather than do the right thing. Judge Sachs also ruled that we were honest and truthful in our recall statement.”
The Yucaipa City Council yet faces issues growing out of the January 9, 2023 move to get rid of Casey and Snow, the recall effort that spawned and Sauseda’s suit to prevent the recall effort from proceeding.
A majority of the original sponsors of the recalls against Duncan and Garner have once more filed a declaration of their intention to circulate petitions to recall Duncan and Garner and are now in the process of gathering signatures on those petitions. In addition, the full council, which includes Jon Thorp and Chris Venable in addition to Beaver, Duncan and Garner, is confronted with Judge Sachs’s findings that the statements in the intention to circulate petitions to recall Beaver, Duncan and Garner documents were true and that Sauseda had alleged in her suit that they were false and that the writ of mandate had the practical effect of preventing 193 Yucaipa residents from engaging in the exercise of their constitutionally protected rights. In the face of an anticipated request by some, most or even all of those 193 Yucaipa residents that the city both address and redress the city’s highest ranking election official – the city clerk – preventing citizens from engaging in the electoral process, the city council will need to determine whether it will countenance what Sauseda did or hold her responsible.
That, in itself is a question mired in complexity and contradiction. Last spring, when Sauseda, represented by Hertz and Love – whose services were being paid for with taxpayer money, the expenditure of which was approved during a closed session vote by Beaver, Duncan and Garner – filed for the writ of mandate, there were immediate accusations that the concept of the lawsuit had not originated with her but had instead been cooked up by Mann and Graham as part of an effort to insulate Beaver, Duncan and Garner. That was met by denials that Mann and Graham had put Sauseda up to the filing of the suit and eventual assertions from Sauseda that the lawsuit was her brainchild. There is intense speculation as to where Mann, Graham and Sauseda will go next with their statements about the genesis of the petition for a writ of mandate. While Graham will be able to dodge any such questions by making an assertion of attorney-client privilege, Mann and Sauseda will have no such luxury. In an effort to protect Sauseda from termination, Mann may indeed man up at that point and acknowledge that the lawsuit was his idea rather than Sauseda’s, and that she merely proceeded with it upon his suggestion or order. Such an approach, nonetheless, carries with it the potential for equally problematic questions asserting themselves, not to mention undercutting the credibility of the current administration at City Hall by confirming that Mann, Graham, Sauseda and Pradetto falsely claimed that Sauseda was the prime mover behind the petition for a writ of mandate.
If Mann continues to maintain that the petition for a writ of mandate ploy was Sauceda’s idea alone, leaving it up to the city council to direct him to terminate her as a means of placating resident outrage over the squandering of taxpayer funds and the cynical manipulation of state law to derail resident participation in the political process, he runs the risk of disgruntling Sauceda, who at this point is in possession of inside information she has gleaned during her now-11-month tenure at Yucaipa City Hall, information that, if exposed, could bring Mann’s career as a public administrator to an end.
Yucaipa City Clerk Ana Sauseda last year initiated a lawsuit that was intended to prevent at least 194 of the city’s residents from engaging in the public political participation process, Judge Michael Sachs ruled on Wednesday.