A writ of mandamus is being prepared by an attorney working on behalf of a recently-formed citizens group to force the City of Upland to revisit its environmental certification of the controversial Bridge Point development proposal and rescind the approval of that project based upon flaws in that certification as well as what those citizens maintain was an inadequate public hearing process for the undertaking, the Sentinel has learned.
Beginning in early 2018, Bridge Development Partners initiated backroom discussions with planning division employees and senior management with the City of Upland with regard to a massive distribution facility for on-line retail giant Amazon.
In June 2019, during a so-called workshop involving city officials and Bridge Development Partners, the project was previewed as a proposal for a three-building warehouse complex involving 977,000 square feet under roof. Over the next several months, as objections to the scope of the proposal manifested, the tentative site plan was modified several times until in October, a revamped conception of the project was presented, one that was reduced to a single structure of 276,250 square feet. When the environmental review documentation for the project was posted on December 16, 2019, it came in the form of a negative mitigated declaration as opposed to an environmental impact report. In that documentation, the project was shown as a 201,096-square-foot distribution center to be located north of Foothill and south of Cable Airport. After feedback from the public was accepted in conjunction with the processing of the negative mitigated declaration, which some residents said was marred by the city’s failure to post all of the public input and commentary submitted with respect to it, the planning commission, with Commissioner Alerxander Novikov absent, met on February 12 to consider the project. A total of 57 people, 33 of them Upland residents, addressed the commission with regard to the project during the five-hour meeting. Thirty of those residents expressed opposition to the project, while three voiced support of it. The majority of the 24 others who went on record, consisting of construction workers, representatives of the construction industry, construction union members or others who had a financial interest in the proposal proceeding, expressed project support.
Preparatory to its other votes, the planning commission first took up whether the Bridge Point project was compatible from a land use standpoint with the city’s Cable Airport Land Use Compatibility Plan. On that item, Airport Land Use Committee members Ronald Campbell and Howard Bunte participated in the decision, which ended with a unanimous 7-0 finding that the project was in keeping with the plan’s parameters.
Thereafter, the five present members of the planning commission voted 4-to-1, with Commissioner Yvette Walker dissenting, to recommend that the city council accept the environmental certification for the project, in the form of a mitigated negative declaration; 4-to-1, with Walker dissenting, to recommend that the city council approve a lot line adjustment for the project; and 3- to-2, with Walker and Commissioner Gary Schwary in opposition, to recommend approval of the development agreement. The most significant vote of the evening was a 3-to-2 vote to recommend that the city council reject the site plan, with Schwary, Walker and Commissioner Linden Brouse prevailing and commissioners Robin Aspinall and Carolyn Anderson dissenting.
Thereafter, the members of the commission were subjected to considerable pressure by lobbyists working on behalf of Bridge Development Partners and other advocates for the project. A fortnight after its first February meeting, the planning commission convened on February 26. Without any notice to the public that it was going to reconsider the matter, the panel that night took up its already concluded recommendation against acceptance of the site plan. In a vote unprecedented in Upland history, the planning commission reversed itself, with Brouse and Scwhary changing their advocacy that the city council reject the proposed physical form of the project to an endorsement of the proposal, such that the commission’s final vote on the matter, including the participation of the at-that-point present Novikov, was a 4-to-2 endorsement of the site plan, with Aspinal, Anderson, Schwary and Brouse prevailing over Walker and Novikov.
Well established at that point was the Bridge Point project was a controversial one.
As March dawned, Bridge Development Partners was engaged in a full-court press to expedite the final approval for the project, hopeful that ground for the distribution center could broken by mid-spring, such that the project, or a significant portion of it, could be completed and ready for occupancy by late October or November, in time for Amazon to be operating from the facility during the 2020 Christmas shopping season. Prior to the city council considering the project in the forum of a public hearing, city staff recommended that Bridge be facilitated in achieving its goal, and comments by members of the city council indicated that the project was one that was viewed favorably.
Before March had run its course, the COVID-19 health crisis descended across the nation and California, and with it mandates on social distancing and restrictions on public gatherings. Accompanying the precautions against the rampant spread of the virus was the prospect that any construction activity would be delayed for several months. With the number of Upland residents opposed to the project burgeoning, City Hall found itself inundated with citizen requests that the council postpone its consideration of the project until the ban on traditional public hearings was lifted so the council could be presented with, and take stock of, the various perspectives on the development proposal before passing judgment on it. The council at one point was purposed to hold a public hearing to consider the project and potentially vote with regard to whether it should be allowed to proceed at its March 23 regularly scheduled meeting, the first convocation of the council at which the traditional open meeting format for such events was suspended.
Given the public discomfiture the concept of holding a non-public meeting provoked, city officials canceled the hearing. Pressured by Bridge Development Partners, city officials in short order called for holding a special meeting on April 1 at which the sole order of business would be for the council to consider staff’s recommendation to proceed with the project.
At the March 23 meeting and again at a specially called March 31 meeting to consider city action in the face of the coronavirus crisis, there was an outpouring of public sentiment against considering the project in any sort of forum in which the public’s ability to participate was limited, which was matched by similar expressions from council members Bill Velto and Janice Elliott. Those requests did not avail from the full council any action to postpone the consideration of the project.
At the specially-called April 1 meeting, Mayor Debbie Stone officiated over the proceedings from her office at City Hall and the four council members participated by means of a remote video/audio hook-up from their homes, with city staff present electronically. The public was not granted physical access to the meeting. Those residents/members of the public who did participate, did so telephonically and without an opportunity to make any sort of visual displays.
At the video conference meeting, the council ultimately voted 5-to-0 to accept a lot line adjustment for the project site and 5-to-0 to accept a development agreement with Bridge Development Partners that committed the company to providing the city with $17 million in fees, much of it intended as money provided in lieu of sales tax to make up for the consideration that Amazon’s internet sales model does not entail the collection of sales tax as normally occurs from businesses retailing merchandise.
The council also voted 4-to-1 with Councilwoman Elliott dissenting, in regard to the issues critical to the approval of the project, those being accepting the mitigated negative declaration for the project and the approval of the project’s site plan.
The vote provided Bridge Development Partners with an entitlement to proceed, putting the ball into the court of the project’s opponents to take legal action if they were to follow through on their stated determination to prevent the project from going forward.
And indeed, over the two weeks following the meeting, a group of residents rallied and launched an entity, Upland Community First, which, the Sentinel has learned, retained attorney Cory Briggs to represent it.
Under the California Environmental Quality Act, those with standing can contest the approval of a project, but must do so within thirty days of the approving agency recording a document known as a “notice of determination,” which in most cases is filed within a week after the vote giving the project approval.
There was a lack of clarity, at that point, as to whether the current state of affairs with regard to the suspension of court activity in the State of California extended that deadline. On April 22, Governor Gavin Newsom issued an order that suspended for 60 days the public filing requirements relating to the California Environmental Quality Act. By earlier this week, Briggs had assembled a draft petition for writ of mandate and complaint for declaratory and injunctive relief which cited both the California Environmental Quality Act, California’s Public Resources Code, California’s Planning and Zoning Law, and the Upland Municipal Code.
In the draft writ, Briggs contends that those making the petition – the members of Upland Community First – as well as other members of the Upland community opposed to the project had their fair hearing and due process rights violated.
“As a result of stay-at-home orders related to COVID-19, the city council meeting on the project occurred via teleconference despite one city councilwoman’s motion to delay the meeting (which was rejected by the other councilmembers) to encourage full public participation,” the draft writ of mandate states. “The decision to conduct the meeting by teleconference, along with respondent’s actions leading up to the meeting, deprived the public of a full and fair opportunity to be heard on the project. The notice of public hearing for the project informs the public that anyone who wishes to comment on the project ‘may do so in writing between the date of this notice and the public hearing; or, may appear and be heard at [Upland City Hall].’ There is nothing in the notice regarding meeting by teleconference. Contrary to the notice, the public was unable to attend the meeting, as it was held by teleconference. In order to comment on the project, any member of the public had to register two hours in advance by sending an email to respondent’s city clerk containing the subject line ‘public comment,’ including the caller’s name and telephone number so that the caller could be telephoned when it was his or her turn to speak at the meeting. Among other things, people who registered to comment on the project were never telephoned to comment; the teleconference connection was choppy and participants’ comments cut in and out during the meeting; and at least one person who wanted to provide visual aids regarding the project’s traffic impacts was not given the opportunity to do so. The decision to hold the meeting by teleconference assumed that everyone who opposed the project had telephone or internet service to participate in the meeting, when in fact at least one person who would have participated in person was precluded from doing so based on the technological barriers imposed by respondents. The decision to hold the meeting in the midst of a pandemic ensured significantly decreased public participation, which is at odds with the well-established public policy of full government transparency and citizen participation in government decision-making. Petitioner’s fair hearing and due process rights were violated as a result of respondent’s failure to provide a fair hearing on the project.”
The draft writ of mandate asserts that the defects plaguing the project approval went beyond the manner in which the public was unable to fully weigh in with regard to its perspective on its impacts on the community to the actual impacts of the project themselves and what the writ characterizes as the incomplete documentation of those impacts and the inadequate safeguards against them, based on the use of a mitigated negative declaration for the project as opposed to a full-blown environmental impact report.
“Whenever a project proposed to be carried out or approved by a lead agency has the potential to cause an adverse environmental impact, the California Environmental Quality Act prohibits the agency from relying on a negative declaration,” the draft writ of mandate states. “Instead, the California Environmental Quality Act requires the preparation of an environmental impact report to identify and analyze the significant adverse environmental impacts of a proposed project, giving due consideration to both short-term and long-term impacts, providing decision-makers with enough information to enable them to make an informed decision with full knowledge of the likely consequences of their actions, and providing members of the public with enough information to participate meaningfully in the project’s approval and environmental-review process. The California Environmental Quality Act also requires every environmental impact report to identify and analyze a reasonable range of alternatives to a proposed project. The California Environmental Quality Act further requires every environmental impact report to identify and analyze all reasonable mitigation measures for a proposed project’s significant adverse environmental impacts. An environmental impact report must be prepared for a proposed project if there is a fair argument, supported by substantial evidence in the administrative record, that the project may have an adverse environmental impact; stated another way, a negative declaration may not be used unless the lead agency determines with certainty that there is no potential for the project to have an adverse environmental impact.”
The draft writ of mandate continues, “There is a fair argument that the project will have significant environmental impacts. By way of example and without limitation, the administrative record is replete with evidence that the project will result in significant traffic, air quality, and noise impacts, among other environmental impacts. The project will also result in cumulative impacts unaccounted for in the mitigated negative declaration. The project’s significant direct, indirect, or cumulative adverse impacts on the environment give rise to respondent’s legal obligation to prepare an environmental impact report. Respondent’s failure to prepare an environmental impact report is a violation of the California Environmental Quality Act.”
In seeking to convince the city council to deny the project approval, several city residents at the April 1 meeting had dwelt upon the consideration that the zoning at the project site, located north of Foothill Boulevard sightly to the east of Central Avenue, is for mixed commercial industrial use, which they asserted is incompatible with a distribution facility. The only property in the city zoned for such use, they said, was south of Foothill Boulevard.
The draft writ of mandate states, “The California Planning and Zoning Law prohibits the approval of any project that is not consistent with the applicable general and specific plans and their components. The project authorizes land uses and activities that are in some ways inconsistent with the general and specific plans and their components. As a result of respondent’s violation of the California Planning and Zoning Law, petitioner, its members, and the general public have been harmed insofar as respondent has approved a project that is inconsistent with the land-use rules designed to protect the public from harmful development.”
Also, according to the draft writ of mandate, “The project violates the Upland Municipal Code. The Upland Municipal Code permits the approval of a development agreement only if it will provide clear and substantial benefits to the city and its residents. The project’s development agreement authorizes land uses and activities that are in some ways inconsistent with the requirements of the Upland Municipal Code. Respondent failed to make the findings required to support approval of the project’s development agreement. Respondent has approved a project that is inconsistent with the land-use rules designed to protect the public from harmful development.”
The draft writ of mandate calls upon the court to render a judgment or order determining or declaring that the city failed to fully comply with the California Environmental Quality Act and other applicable laws as they relate to the project such that the approval given to the project at the April 1 meeting is rendered null and void.
-Mark Gutglueck

For the third time in three months, the head coach of a major sport at Yucca Valley High School has made a precipitous departure from his assignment.
John Stewart, who earlier in the academic 2019-20 year guided the Trojans to their first gridiron victory over rival Twentynine Palms High School in 15 years, announced on Monday he was departing from Yucca Valley to take what he referred to as his “dream job” coaching at Big Bear High School.
2019 had been Stewart’s first year as the Trojan’s football coach. He had done an exemplary job, leading the team to an overall 7-4 record and a Desert Valley League Championship last fall, and into the California Interscholastic Federation playoffs. It was widely thought that he would remain in place for some time to come.
Stewart had previously been the head coach at Victor Valley High School in Victorville and Silver High School in Yermo prior to that.
He reportedly told Yucca Valley High School Principal Justin Monical that he was leaving for Big Bear both because of what he felt the mountain community offered and because he did not consider Yucca Valley to be a “good fit” for his family.
Unstated was the contretemps in the Yucca Valley High School athletics program, most prominently the way Jay Stepp was removed from his position as head coach for the track and field team at Yucca Valley High School in February after he had been in that position for 27 years.
Stepp had gotten crosswise with Monical and the Morongo Unified School District over his objection to Holly Brimhall remaining as his assistant coach. Stepp maintained that Holly Brimhall undercut his authority as coach with several of his athletes. There were familial issues involved. Loryn Brimhall, a junior this year, is a distance runner for the Trojans who did not have much of a chance to compete this year because the coronavirus crisis brought an early end to the track and field season. She had several near record-breaking times in the 1600 meters and 800 meters events last year. Brad Brimhall had been the Trojans’ baseball coach. When differences developed between Stepp and Holly Brimhall, Brad Brimhall had taken the side of Holly Brimhall, and several emails from him, described variously as “unfortunate” or “ill-conceived” and “tartly-worded” became public. He was terminated as baseball coach on what was said to be an unrelated matter relating to his discipline of a player in early February. Stewart was brought in to replace him.
-Mark Gutglueck

Six weeks after the regimen of isolation in the face of the coronavirus pandemic began in earnest, this week the number of known/confirmed cases of the condition in San Bernardino County eclipsed two thousand and the death toll was approaching 100.
Simultaneously, millions of the county’s residents remain untested, and substantial numbers of those who are currently evincing or once experienced the symptoms or those who fall into high risk categories associated with the disease cannot get tested.
As of Tuesday, April 29, 1,827 San Bernardino County residents had tested positive for the coronavirus, according to the San Bernardino County Department of Health, and 85 had died.
By Wednesday, according to the San Bernardino County Department of Health, the death toll had climbed to 89 and the number of infected countywide stood at 1,928.
At that point, nearly one in ten of those who had been tested – 9.9 percent – had evinced indications that they had the disease. Significantly, just 19,499 of the county’s 2.2 million people had been tested.
On Thursday, the San Bernardino County Department of Health reported that 2,058 people had tested positive and that 93 people had succumbed to the affliction.
Late this afternoon, Friday, May 1, word came that 2,113 county residents have tested positive and 94 have perished.
The breakdown on those infected throughout the county shows that 30 of those cases involved residents of Adelanto, one case was in Angelus Oaks, 29 in Apple Valley, nine in Barstow, three in the unincorporated area of Big Bear City, five in the incorporated City of Big Bear Lake, 27 in Bloomington, three in Blue Jay, 64 in Chino, 61 in Chino Hills, 70 in Colton, six in Crestiline, 251 in Fontana, two in Fort Irwin, 13 in Grand Terrace, 58 in Hesperia, 67 in Highland, 15 in Joshua Tree, 39 in Loma Linda, 12 in Mentone, 32 in Montclair, five in Morongo Valley, 13 in Oak Hills, 157 in Ontario, three in Piñon Hills, nine in Phelan; 119 in Rancho Cucamonga, 117 in Redlands, 97 in Rialto, one in Rimforest, three in Running Springs, 252 in San Bernardino, five in Twentynine Palms, 92 in Upland, 96 in Victorville, one in Wrightwood, 176 in Yucaipa, and 12 in Yucca Valley. The place of residence for 158 of those who had tested positive for the virus was either not known, confidential, withheld, not provided or undetermined.
The Sentinel has learned and now notes that the figures relating to the infection rate and death rate from COVID-19 in the county is incomplete. The figures provided by the county do not reflect those infected within the state penal system at facilities located in San Bernardino County, nor do they cover those in other state institutions. It does not appear that they account for those in federal penal or treatment facilities, either. It is unclear whether they include those housed in the county’s detention facilities. County officials as of today were unable to say whether the number of those infected within the sheriff’s department’s holding facilities in Victorville or Joshua Tree, or its detention facilities in Rancho Cucamonga, Adelanto, San Bernardino or Glen Helen were included in the Department of Health’s numbers.
At the Chino Institution For Men, as of this morning, 110 inmates were infected and 32 staff members were infected. There had been one death at the prison, as well. At the nearby Frontera California Institution for Women in Chino, there was a single known case. In this way, the actual number of known cases of infection in Chino is 202.
Also according to the State of California, there are three staff and one resident infected with the coronavirus, for a total of four, at the West Valley Detention Center in Rancho Cucamonga. This would, if those numbers are not included in those kept by the San Bernardino County Department of Health, bring the actual number of known cases in Rancho Cucamonga to 123.
The State of California also shows 11 staff members at Patton State Hospital infected. Patton Hospital, which cares for the criminally insane and those there on civil commitments, lies entirely within the San Bernardino city limits. Thus, the total number of COVID-19 infected individuals in San Bernardino would appear to be 263.
Some progress in the treatment of the malady is being made locally.
At St. Mary Medical Center in Apple Valley, medical professionals there have begun
accepting blood donations to gather plasma from former COVID-19 patients as a stratagem to assist those who are critically ill with the virus.
The experimental treatment consists of injecting blood plasma from former COVID-19 sufferers, which is rich in antibodies to ward off the virus, into those currently struggling with the disease and its sometimes fatal symptoms. This approach is not used routinely or casually, but is reserved for those most seriously infected with the condition, whose prognosis for recovery is slimmest within the population, and who have not responded to other treatment modalities.
According to a statement from St. Mary, “Historically, plasma from those who have recovered from infection has been used as a potentially lifesaving treatment when new diseases or infections develop quickly, and no treatments or vaccines were available.”
Accordingly, St. Mary is seeking blood donors who have documented evidence they have been infected with COVID-19 and have been symptom free at least four weeks or symptom free at least two weeks and subsequently test negative for the virus. Those who meet that criteria are then sent to the LifeStream Blood Bank, which will extract the plasma. Under an agreement, LifeStream then routes half of the plasma collected from first-time donors to St. Mary for immediate use in its ongoing plasma-injection program for the treatment of critical COVID-19 patients, and keeps the other half on hand for distribution to other area hospitals which it is anticipated will soon incorporate plasma injection into their panoply of treatments for those critically ill with COVID-19.
In a release, Dr. Joe Chaffin, LifeStream’s chief medical officer said, “Though convalescent plasma has not been fully proven to be effective in patients with COVID-19, there are encouraging signs from early studies. By collecting this product, LifeStream is proud to help hospitals develop better understanding of the use of convalescent plasma for patients in desperate need.”
Those interested in becoming donors can learn more at lstream.org/covidplasma.
Simultaneously, public health and medical professionals in San Bernardino County have perpetuated one of the primary shortcomings in the response to the crisis by a widespread, indeed virtually universal, failure to perform adequate testing on the county population to ascertain the extent of the infection.
The county’s largest medical care providers – Kaiser Permanente, Inland Empire Health Care, Blue Cross/Blue Shield of California, Loma Linda University Medical Center, Beaver Medical, the County Hospital – along with smaller care providers and the County Department of Public Health have abided in the same situation for weeks. Tens of thousands certainly and perhaps hundreds of thousands of those infected and vulnerable remain under lockdown in their homes, feverish and unable to be tested, such that their COVID-19 status remains undetermined and they remain without medical care.
Promises made more than a month ago by the San Bernardino County Department of Health that it would provide testing to county residents concerned that they might have contracted the condition were reneged upon almost immediately. Registrants for that testing, including ones who met most of the priority criteria for testing – a persistent cough, fever, shortness of breath, body ache, sore throat, age of 65 or more – when they attempted to take the county up on its testing offer by applying on March 26 to be included in the round of testing that took place in San Bernardino on March 27 were overlooked in favor of those who had traveled internationally or had contact with those known to have had the virus. Similarly, hundreds or perhaps thousands were turned away when they attempted to take advantage of the county’s offer to perform testing in Yucaipa on April 11, in Montclair on April 14, in Big Bear Lake on April 17, in Joshua Tree on April 22, and in Rancho Cucamonga on April 27.
Earlier this week, the county and its health department, perhaps smarting over criticism that it had neglected the testing of the most vulnerable elements of its population thus far, committed to a revamping of the prioritization for testing, saying that as of yesterday, Thursday, April 30, those older than 65 would be provided with testing if they were to merely show up at any future announced testing locations or Arrowhead Regional Medical Center, the main campus of the county hospital in Colton, whether or not they were currently evincing symptoms of the coronoavirus. Nevertheless, when some residents showed up at the county hospital to avail themselves of that testing offer, they were turned away.
At present, 20,598 – less than one out of 100, or .09362727 percent – of the county’s 2.2 million residents have been tested.
-Mark Gutglueck

Earwigs are insects which entirely compose the order Dermaptera, which features roughly 2,000 species in 12 families.
Earwigs have slender flattened bodies, bead-like antennae, and are easily recognized by the pair of large pincers at the tip of their abdomens, called cerci. Adult males have ten abdominal tergites; females, eight. Some are wingless, but in most the forewings are represented by short leathery covers called tergmina, under which the hind wings (if present) fold in a unique fan-like fashion, leaving a chitinized triangular part exposed. These forewings are rarely used, but contribute to these bugs’ scientific name “skin wings.” Earwigs are found on all continents except Antarctica.
Those species of earwigs known to exist in Southern California include the Euborefliua annulipes, Anisolabis maritima, Forficula auricularia, Euborellia cincticollis and two rare flying variety, the Labia minor and Labidura riparia.
Earwigs are mostly nocturnal and often hide in small, moist crevices during the day, and are active at night, feeding on a wide variety of insects and plants. Damage to foliage, flowers, and various crops is sometimes commonly blamed on earwigs, though the bugs offer benefits to crops, as they eat both the foliage and the insects eating such foliage, such as aphids.
Males and females differ in forcep size, with males having much larger one with a stronger curve, while females have smaller, straighter forceps with a slight curve at the end. Earwigs use these forceps to assist in predation, defense, sexual selection, courting and mating, and wing folding.
Earwigs live for about a year from hatching. They start mating in the autumn, and can be found together in the autumn and winter. The male and female will live in a chamber in debris, crevices, or soil about an inch deep. Nests are essential for protection from the environment and predators, and are needed for the success of their offspring’s survival. Special nests are dug for molting, feeding, and egg laying. A suitable nest is chosen and dug out by the female under a rock or tree bark. During mating, the male and female will cohabit for three months or more. Sometime after fertilization, the female, as the primary caregiver of her young, will become hostile to the male while in the brooding chamber. From midwinter to early spring, the male will leave, or be driven out by the female. Afterward the female will begin to lay 20 to 80 pearly white eggs in two days.
Earwigs are among the few non-social or subsocial insect species that show maternal care. The mother will pay close attention to the needs of her eggs, such as warmth and protection. The mother will also faithfully defend the eggs from predators, even forgoing feeding herself during this period. Another distinct maternal care unique to earwigs is that the mother continuously cleans the eggs to protect them from fungi. While the female is laying her eggs, she grabs them and cleans them of any fungi or dirt one by one as they are laid. Upon finishing this chore, they will lay on top of the eggs much like a hen. Studies have found that the urge to clean the eggs persists for days after they are removed; when the eggs were replaced after hatching, the mother continued to clean them for up to three months. Under normal conditions, the female continues to groom the eggs and stay on guard over them for 10 days until they begin to hatch. At this time the mother goes in search of food for her young, and continues feeding and grooming them until they leave the nest themselves two to five days later. Some females get lost returning to their brood and start caring for another individual clutch as they are not able to distinguish between their own young and another’s. The young will go on to dig their own nest for molting, taking anywhere from 4 to 50 days to reach the next instar.
Earwigs are hemimetabolous, meaning they undergo incomplete metamorphosis, developing through a series of 4 to 6 molts. The developmental stages between molts are called instars.
Earwigs are mostly scavengers, but some are omnivorous or predatory. The abdomen of the earwig is flexible and muscular. It is capable of maneuvering as well as opening and closing the forceps.
Earwigs are generally nocturnal, and typically hide in small, dark, and often moist areas in the daytime. They can usually be seen on household walls and ceilings. Interaction with earwigs will typically result in a defensive free-fall to the ground followed by a scramble to a nearby cleft or crevice. During the summer they can be found around damp areas such as near sinks and in bathrooms. Earwigs tend to gather in shady cracks or openings or anywhere that they can remain concealed during daylight.
Earwigs are regularly preyed upon by birds, and like many other insect species they are prey for insectivorous mammals, amphibians, lizards, centipedes, assassin bugs, and spiders. European naturalists have observed bats preying upon earwigs. Their primary insect predators are parasitic species of Tachinidae, or tachinid flies, whose larvae are endoparasites. One species of tachinid fly, Triarthria setipennis, has been demonstrated to be successful as a biological control of earwigs for almost a century. Another tachinid fly and parasite of earwigs, Ocytata pallipes, has shown promise as a biological control agent as well. The common predatory wasp, the yellow jacket (Vespula maculifrons), preys upon earwigs when abundant. A small species of roundworm, Mermis nigrescens, is known to occasionally parasitize earwigs that have consumed roundworm eggs with plant matter. At least 26 species of parasitic fungus from the order Laboulbeniales have been found on earwigs. The eggs and nymphs are also cannibalized by other earwigs.
Primary predators on earwigs in Southern California are ants, as they prey on unattended eggs. Overlap of predation does occur between these organisms, though, as the earwigs prey on the ant eggs as well. The effect of ants on earwigs seems to be greater than the reverse relationship, as populations of earwigs increase if the ants decrease.
The earwig’s observed prey include largely plant lice, but also large insects such as bluebottle flies and woolly aphids. Plants that they feed on typically include clover, dahlias, zinnias, butterfly bush, hollyhock, lettuce, cauliflower, strawberry, blackberry, sunflowers, celery, peaches, plums, grapes, potatoes, roses, seedling beans and beets, and tender grass shoots and roots; they have also been known to eat corn silk, damaging the corn.
Once earwigs become adults, the individuals will live for only three to five months, and begin courting immediately. This is done by a feeling of antennae, and mutual grabbing of each other’s abdomens with their forceps until copulation occurs. Among the Labidura riparia species of earwig, two to three generations will occur in the span of a year, with the last generation hibernating underground through winter.
Earwigs are fairly abundant and are found in many areas around the world. Because of elements of their appearance, they are sometimes erroneously associated with cockroaches. There is no evidence that they transmit diseases to humans or other animals. Their pincers are commonly believed to be dangerous, but in reality, even the curved pincers of males cause little or no harm to humans. Earwigs have been rarely known to crawl into the ears of humans, but they do not lay eggs inside the human body or human brain.

From Wikipedia, https://www.terminix.com, https://bugguide.net/node/view/2709

By clicking on the blue portal below, you can download a PDF of the April 24 edition of the San Bernardino County Sentinel.

Sentinel 04-24-20

By Mark Gutglueck
More than two-and-a-half years after prosecutors failed to obtain convictions against three former San Bernardino County public officials and the wealthy developer accused of bribing them, pretrial skirmishing in the federal civil case the four once-accused brought against the county for what they say was malicious prosecution continues apace. That political corruption case, in which three public officials had been previously convicted, took nearly a decade to resolve. Late last month, the plaintiffs in the civil action achieved a minor victory in the form of one federal judge finding and another federal judge confirming that the central defendant in the matter engaged in the destruction of evidence.
That finding and its accompanying ruling by the trial judge is significant from the standpoint that the offending party was Mike Ramos, the district attorney whose office had prosecuted the four individuals who now say they were wrongfully caught up in the criminal matter, which dealt with events that took place in 2004, 2005, 2006, 2007 and 2008 and went to trial in 2017.
Of note is that much or all of the erased or destroyed information in question consisted of emails and text messages relating to Ramos’s personal, political and professional communications during his 2018 reelection campaign, which came after the trial of the four individuals – Jeff Burum, Paul Biane, Mark Kirk and Jim Erwin – took place the previous year.
A key player in the matter is Bill Postmus, one of the most dynamic political entities in San Bernardino County at the turn of the Third Millennium and arguably the most powerful personage within San Benardino County government through most of the current century’s first decade. Postmus’s reign came at the end of a several-decades-long period now known as San Bernardino County’s “Golden Age of Corruption,” an era in which individuals such as Fifth District County Supervisor Robert Hammock, Second District Supervisor Cal McElwain, Fifth District Supervisor Jerry Eaves, sheriffs Frank Bland, Floyd Tidwell and Gary Penrod, county administrative officers Robert Covington, Harry Mays and James Hlawek, district attorneys Jerome Kavanaugh and James Cramer, County Treasurer Tom O’Donnell, County Investment Officer Sol Levin, Fontana Mayor Nat Simon, Fontana City Manager Jack Ratelle, Hesperia City Manager Robert Rizzo, Colton Mayor Karl Gaytan, Colton councilmembers James Grimsby, Don Sanders and Abe Beltran among others freely participated in an openly pay-for-play environment in which bribes and kickbacks and the use of governmental authority to perpetuate political power and enable financial empires were the common ethos, a circumstance that some believe persisted throughout Postmus’s tenure and beyond to the current time in the personages of former Upland Mayor John Pomierski, former Upland councilmen Michael Libutti, Ken Willis, Brendan Brandt and Tom Thomas, Upland City Manager Robb Quincey, First District Supervisor Brad Mitzelfelt, Second District Supervisor Janice Rutherford, Fourth District Supervisor Curt Hagman and Third District Supervisor Dawn Rowe.
In 2000, Postmus was elected to the board of supervisors at the age of 29, making him, after Minor Cobb Tuttle in 1862, Norman Taylor in 1855, Robert McCoy in 1861, John C. Turner in 1893 and Gus Skropos in 1985, the sixth youngest county supervisor in San Bernardino County history. Four years later, in 2004, he became the second youngest chairman of the county board of supervisors after John C. Turner in 1895. That year he also became the chairman of the San Bernardino County Republican Central Committee, a perch from which he had control over the purse strings of the local GOP’s campaign war chest and held tremendous sway in determining who was elected to an overwhelming number of political offices in the county. In 2006 he expended more than $2 million in what yet remains the most expensive political campaign in county history when he successfully challenged the incumbent county assessor, Don Williamson, thereby acceding to the most powerful taxing position in San Bernardino County.
He had been the single most powerful political entity in San Bernardino County during his heyday, a virtual kingmaker.
In 1997, three years before Postmus had been elected to the board of supervisors, then-45-year-old Dan Richards formed the Colonies Partners with Jeff Burum, who was eleven years his junior.
Prior to that, Richards had been one of the owners of Stephen Daniels Commercial Brokerage and a former member of the Foothill Fire District Board of Trustees, which ceased to exist after the district was absorbed by the City of Rancho Cucamonga in 1989 to become the Rancho Cucamonga Municipal Fire Department. With the backing of 21 other investors, Richards and Burum raised $16 million to purchase from the San Antonio Liquidation Trust 489 acres located in the northeastern quadrant of what is now Upland, property long owned by the San Antonio Water Company and utilized for purposes of groundwater recharge and flood mitigation.
It was Richards’ and Burum’s intention to convert that land into a residential subdivision with some order of a commercial component. But the property was problematic. Lying just south of the foothills at the eastern extension of the San Gabriel Mountains, it was subject to flooding even during moderate rain, as the water would cascade down the south face of 8,696 foot-elevation Ontario Peak, which towers above Upland and San Antonio Heights to the north, and inundate the property. During a major deluge the entirety of the property – what is referred to as an alluvial creek – would become a raging river. A few quarries had been sunk into the property, from which granite, gravel and limestone had been extracted during the early decades of the 20th Century. Those quarries were utilized as catch basins and recharge basins, into which the flood waters would pour and then gradually settle into the water table. In 1933, 1934, 1939 and 1962, the San Bernardino County Flood Control District had recorded flood easements on the property.
Prior to Richards’ and Burums’ effort to develop the property, four highly reputable residential development companies had explored the same idea. Orange County-based Pennhill Land Company and Orange County-based Kohl Company seriously examined all of the requirements to get an actual entitlement to build what was then dubbed the San Antonio Lakes project. That included redressing the overwhelming flood issues on the property, which would entail building a contrivance to carry the water away and meet the statutory requirement of ensuring that in the face of the worst flooding that could be expected to occur statistically in a 100-year period the houses built there would remain one foot above the level of the water. That was too daunting, the Pennhill Land Company and the Kohl Company concluded, and their incipient plans for the project were abandoned. The William F. Lyon Company, then took a run at building a planned community on the property, slightly reworking the name into “The Lakes at San Antonio.” Ultimately, the Lyon Company came to the same conclusion as the Kohl Company before it. Then Lewis Homes took up the project concept. Lewis, too, would conclude that the project simply would not pencil out if it were to be developed to the traditional standards, and it forsook proceeding.
Richards, however, as a former elected official, understood precisely that obtaining project approval involved a relatively simple formula of securing majority support on the governmental decision-making panel that had jurisdiction and land use authority over the property upon which the project was to be built, which in this case was the Upland City Council. Through a shrewd investment of less than $25,000 in political contributions to the mayor and city council, Richards and Burum gained influence over that body. It so happened that Upland, at that time a city of 68,570 population, had recently downsized its municipal operations, dispensing with its assistant city manager, its city engineer, its engineering department and a significant portion of its community development/planning divisions. With Richards having arranged for the project’s acceptance on the political level, he and Burum overcame the practical issues relating to getting city staff acquiescence in the undertaking by agreeing to pay for the city to hire contract engineering and planning professionals to monitor and guide the municipal approval process for the proposal, including meeting development standards and passing inspections. The money in their paychecks originating with the Colonies Partners, those contract planning and engineering professionals enlisted to work on the project by the city acted accordingly, ensuring that the project could proceed.
As the old hand who knew the political lay of the land, Richards worked almost invisibly from the backroom, wiring the deals politically, while the hungrier Burum, who was more steeped in the ins and outs of the building industry, along with his brother Phil, took on a more public role in the promotion of the project.
A major issue was the need for infrastructure to accommodate the project, in particular flood control. Accounts vary as to what the Colonies Partners proposed to the county, the county flood control division and Jon Mikels, who was then the supervisor for the Second District, which included all of Upland at that time, as well as adjoining Rancho Cucamonga and San Antonio Heights. According to county officials, the Colonies Partners wanted the county, through its flood control division, along with the Army Corps of Engineers, to pay for the lion’s share of the flood control channelization and retention basins as part of a deal that would involve those water-holding-and-conveying facilities being built on property within the original 489 acres or on another 22.3 acres the Colonies Partners had tied up south of the project area. Mikels, however, was adamant that neither the county nor its flood control division should defray any part of the cost of providing the infrastructure that would be required for the project to proceed. The supervisor became further entrenched in that view when he learned that the Colonies Partners had sold for $17 million 40 of the 489 acres at the northern fifth of the property to the California Department of Transportation as right-of-way for the 210 Freeway. By making the sale to CalTrans, Richards had made for the consortium almost $1 million more than the Colonies Partners had paid for the entirety of the acreage. That $17 million included payment for the property and what was referred to as “severance damages,” meaning any encumbrance on the property that remained in the possession of the Colonies Partners as a consequence of the construction of the freeway, including paying for needed flood control facilities. Mikels was highly cognizant that the placement of the freeway along the north-lying portion of the Colonies Partners’ property had transitioned what was empty and unimproved land into prime commercial acreage, greatly enhancing its value. Given that the property had been designated on zoning maps as open space and was shown as undevelopable without the stormdrains, basins and channels required to prevent that property and other properties next to it from being inundated during heavy rains, Mikels insisted that the project be held in abeyance until such time as the Army Corps of Engineers got around to constructing a regional network that would alleviate flooding there or the Colonies Partners itself took up the construction of the water diversion system needed. At one point, according to the Colonies Partners, Mikels said he was unwilling to put up $1 million toward the project the Colonies Partners was proposing as the county’s share of the infrastructure burden. Similarly, according to the Colonies Partners, the county was unwilling to throw $3 million toward the construction of the 67-acre holding basin to be located on the Colonies Partners property. Richards has more recently maintained that on one occasion when he and Burum had met with Mikels, they offered him a three-ring binder which contained drawings, specifications and other details relating to a $25 million basin they were proposing to have the county flood control division construct on their property, toward which they were willing to provide the land at no cost and cover $12.5 million of the construction price. Mikels, Richards said, refused to even look at the binder.
Ultimately, in 2002, the Colonies Partners sued the county and its flood control division over the outstanding drainage and flood control issues relating to the project. That same year, Richards engineered a political coup to remove Mikels, whom he and Burum considered to be the primary obstruction to the project, from office. They did so by delivering, either directly or indirectly, $70,000 in political donations to Paul Biane, then a Rancho Cucamonga councilman, who challenged Mikels in the 2002 election. Also running for reelection that year was District Attorney Dennis Stout.
There had been a longstanding previous political alliance between Mikels and Stout. When Mikels had been elected in 1977 as a charter member of the Rancho Cucamonga City Council, he had appointed Stout to serve as a member of the Rancho Cucamonga Planning Commission. Thereafter, when at that time the mayor was appointed from among the council ranks by a vote of its members, Mikels had acceded to that post. In 1986, when Mikels stepped up to run, ultimately successfully, for Second District county supervisor, so too did Stout vie for office successfully that year, in what was Rancho Cucamonga’s first direct mayoral contest. Mikels and Stout had endorsed one another in their respective contests. Both were re-elected in 1990. In 1994, while Mikels was again cruising to an easy victory as supervisor, Stout successfully sought election as San Bernardino County District Attorney.
While to outward appearances the alliance between Mikels and Stout seemed intact after both were occupying two of the most influential positions in the county, something nevertheless had gone amiss. Harvard Business School Graduate Joe DiIorio, who had relocated from Orange County in the 1970s to make heavy property investments in and around the area that became Rancho Cucamonga and who had been one of the sponsors of the city’s 1977 incorporation drive, experienced success with development projects he pursued. By 1990, however, the Stout-led council rejected numerous efforts by DiIorio to proceed with a large-scale project within Rancho Cucamonga’s sphere of influence. When the entity DiIorio controlled, the Caryn Company, as a result of the project delay began to falter, DiIorio became embroiled in litigation with the city over issues related to his entitlement to proceed with the project. This created a technical default in more than $20 million in outstanding loans secured by the property he was developing. As the project stalled and a lifetime of his profits were consumed by lawyers’ fees, a despondent DiIorio, who had been one of Mikels’ major political backers, took his own life. This had embittered Mikels toward Stout.
Unaware of the falling out between Mikels and Stout and assuming they yet remained firm allies, Richards and Burum calculated that it would be in the Colonies Partners’ best interest to remove Stout from office at the same time that Mikels was supplanted from the board of supervisors. They likewise threw their support behind Mike Ramos, a prosecutor in the district attorney’s office who challenged Stout. Like Biane over Mikels, Ramos emerged victorious against Stout in the 2002 election.
The Colonies Partners’ litigation against the county and the flood control district dragged on. Superior Court Judge Peter Norell at a relatively early stage made a ruling in favor of the Colonies Partners which held that the county’s flood control easements on the Colonies Partners’ property recorded in 1933, 1934, 1939 and 1962 had been abandoned through underuse. But the Fourth District Court of Appeal had overturned Norell, ruling that the county had unfettered easements on 31 acres and a right to utilize 30 further acres of land on the property in question for flood control purposes with the landowner’s consent pursuant to terms to be worked out between the two parties.
In 2004, Jim Erwin, a sheriff’s deputy who had previously been the president of the Safety Employees Benefit Association, the union representing the county sheriff’s sworn personnel up to the rank of lieutenant, had left the sheriff’s department and had reinvented himself as a self-styled political and management consultant. By 2005, he had been retained by the Colonies Partners to assist it in its dispute with the county over the Colonies at San Antonio residential and the Colonies Crossroads commercial subdivisions.
Also in 2004, as Postmus was vying for reelection, the Colonies Partners emerged as the heaviest contributors to his electioneering fund.
When the lawsuit the Colonies Partners had filed against the county went to trial before Judge Christopher Warner in 2006, he ruled against the county, this time asserting the easements had been extinguished because the county had surcharged, i.e., overused, them and that certain county officials had defrauded the Colonies Partners in the arrangements for the development of the property and the construction of flood control facilities there.
Despite the verdict favorable to the Colonies Partners in the bench trial held in Warner’s court, the county, based upon reports of improprieties relating to contact between and collusion involving the Colonies Partners and both Judge Warner and Judge Norell, had filed complaints with the California Commission on Judicial Performance relating to Warner and Norell, and was gravitating toward an appeal with regard to Warner’s verdict, waiting only upon Warner’s yet-to-be-delivered final ruling and monetary judgment in the case.
By then, the Colonies Partners were growing impatient with the county’s continuing resistance to its flood control division’s participation in the provision of infrastructure to accommodate the Colonies at San Antonio and Colonies Crossroads projects. Of note was that the company’s hostility was vectored less at supervisors Josie Gonzales and Dennis Hansberger, both of whom appeared to be opposed to subsidizing the building of the flood control infrastructure for those subdivisions altogether and supportive of the county’s contesting of the lawsuit, but rather toward Postmus and Biane, in whose political careers the company had heavily invested and whose efforts to settle the ongoing litigation on terms favorable to the Colonies Partners were not particularly effective.
In 2006, Biane was obliged to stand for reelection, but no candidate to oppose him emerged. Unchallenged, Biane put his efforts into sponsorship of Measure P, which called for increasing the remuneration the members of the board of supervisors received from $99,000 in salary per year and $45,000 in benefits to $151,000 in salary per year and roughly $68,000 in benefits. Biane and other supporters of the proposal did not dwell on the pay and benefit increases but rather on Measure P’s other provision which from that point forward would limit supervisors to a maximum of three four-year terms. Also in 2006, Postmus was seeking election as county assessor, running against incumbent Donald Williamson.
After having been so active as a campaign contributor in the 2002 and 2004 elections, the Colonies Partners made virtually no contributions to San Bernardino County politicians in the 2006 election cycle. Indeed, in a show of his discontent with Biane, Burum emerged as the most dedicated opponent of Measure P. At that point Postmus was the chairman of the board of supervisors and the chairman of the San Bernardino County Republican Central Committee. Biane was the vice chairman of the San Bernardino County Board of Supervisors and the vice chairman of the San Bernardino County Republican Central Committee.
It was in the aftermath of Warner’s ruling, as the county’s lawyers were advising the board of supervisors to appeal it to the Fourth Appellate District which had previously established the easements as being intact, and three weeks to the day after the election in which Postmus was elected assessor and Measure P passed, that Postmus, Biane and then-Fourth District Supervisor Gary Ovitt voted to settle the case for a $102 million payout to the Colonies Partners. Then-Supervisor Dennis Hansberger and Supervisor Josie Gonzales opposed making the settlement.
Following the settlement, between March 2007 and the end of June 2007, Postmus, Erwin and Gary Ovitt’s chief of staff, Mark Kirk, all established political action committees. In that same time frame, Burum and his brother Phil, cut two separate $100,000 checks from the Colones Partners’ account to the newly-created political action committees set up by Erwin and Kirk; wrote two separate $50,000 checks to the political action committees established by Postmus; and provided another $100,000 check to a previously existing political action committee that had been set up by Biane’s chief of staff, Matt Brown, and over which both Biane and Brown had control.
Upon taking office as assessor, Postmus created two assistant assessor positions, whereas previously under his predecessor Don Williamson there had been a single assistant assessor post. He filled those positions with Erwin, who had no previous experience in assessing property for tax purposes, and Adam Aleman, a 22-year-old field representative from his supervisor’s office, who had no experience in real estate or assessing property for tax purposes. Erwin, who had differences with Postmus that manifested within six months, left the assistant assessor’s position in October 2007. In 2008, Erwin went to work as the chief of staff to Neil Derry, who had been elected Third District San Bernardino County supervisor that year.
By late 2008, Postmus, while serving as assessor, had slipped into the morass of scandal, with word reaching the public that more than ten of his employees in the assessor’s office were engage in partisan political activity, utilizing county equipment and assets in doing so while functioning from county offices, and that he was in the throes of drug addiction.
After his election in 2002, Ramos served four years without distinction or major event, and was not challenged in the 2006 election. At that point, he had emerged as the tentative replacement candidate in 2008 for then-Congressman Jerry Lewis, who was one of Ramos’s political associates, in the 41st Congressional District.
In 2007, it became widely known that the FBI and the US Attorney’s Office were carrying out an investigation into Congressman Lewis’s relationship with the Copeland Lowery Jacqeez Denton & White lobbying firm, headed by Lewis ally and former Congressman Bill Lowery. Lowery and his firm had provided Lewis’s campaign fund or his political action committee either directly or through the firm’s clients hundreds of thousands of dollars while Lewis, by means of what was then his chairmanship of the House Appropriations Committee and his prior chairmanship of the Defense Appropriations Subcommittee, steered approaching one billion dollars in contracts to clients of Lowery’s firm through earmarks and other legislative methods. In addition, the investigation dwelt on two members of Lewis’s staff, Letitia White and Jeff Schockey, going to work for Lowery’s lobbying firm, earning millions of dollars each, as well as Lewis earmarking $2.75 million for the “Barracks Row” area of Capital Hill in Washington, D.C., where Lewis and his wife, who was also his chief of staff, owned a three-bedroom home valued at $943,000.
In 2008, with the investigation still going full-bore against him, Lewis decided surrendering the leverage and advantage being a member of Congress and either the chairman or ranking member of the Appropriations Committee represented would be unwise, and he did not leave Congress and endorse Ramos as was earlier planned. As the investigation continued for another three years thereafter, Lewis ran in 2008 and again in 2010. He spent over $2.3 million out of his electioneering fund hiring defense attorneys to represent him in the face of the federal investigation. He did not leave office until 2013, at which time the investigation was concluded, and he did not seek reelection in 2012.
His congressional ambition thwarted in 2008 and again in 2010, Ramos was faced with having to seek reelection as district attorney in 2010, at which point two opponents declared against him. Having spent more than seven years in office with few accomplishments in that time, he latched onto issues relating to Postmus and the Colonies Partners lawsuit settlement as a means of generating publicity to assist in his reelection effort that year.
Joining with then-California Attorney General Edmund G. Brown Jr, Ramos filed criminal charges against Postmus and Erwin in February 2010, alleging the two $50,000 payments to Postmus’ political action committees were bribes in return for his vote to approve the $102 million settlement, and that the $100,000 paid to Erwin’s political action committee was provided to him as payment for his illegal action in inducing both Postmus and Biane to support the $102 million settlement. Working on behalf of the Colonies Partners, according to the prosecutors, Erwin put together political mailers depicting Postmus as a drug addict and homosexual and then withheld them in order to blackmail him into voting for the settlement, and Erwin also created another set of mailers exposing Biane as teetering on the brink of bankruptcy and incapable of managing his own financial affairs, such that he was miscast in the role of a member of the board of supervisors overseeing the county’s multi-billion annual budget.
The complaint alleged the November 2006 votes to approve the $102 million settlement were obtained as part of a broad conspiracy that involved five other uncharged and unnamed conspirators, though the identities of the five could be surmised from descriptions of their capacities and their actions, those being Biane, Richards, Burum, Kirk and Patrick O’Reilly, a public relations consultant who had worked for the Colonies Partners.
Both Postmus and Erwin pleaded not guilty to the charges.
Thirteen months later, however, in March 2011, Postmus, who was also facing charges stemming from his abuse of authority while serving in the capacity of assessor, pleaded guilty to fourteen felony political corruption charges which included bribery, misappropriation of public funds, criminal conspiracy, public office conflict of interest, and perjury, along with a single count of misdemeanor drug possession. He agreed to turn state’s evidence and testify against all of the others involved, and cooperate with the investigation of the matter and the prosecution. In the same time-frame, Adam Aleman, Postmus’s one-time field representative when he was supervisor who had been elevated to assistant assessor, had been charged criminally as well, pleading to four felonies and agreeing to cooperate in the matter. As someone who was a member of Postmus’s staff in 2006 when he was supervisor, Aleman was able to shed light on a number of issues with regard to the settlement. Another member of Postmus’s staff at the assessor’s office was Greg Eyler, who likewise pleaded guilty and agreed to cooperate in the investigation. Postmus was the star witness before a grand jury that was impaneled and heard testimony in April 2011. Aleman, as well, gave extensive testimony before that body, which returned, in May 2011, a 29-count indictment prepared by the California Attorney General’s Office and the San Bernardino County District Attorney’s Office, superseding the charges that had been filed against Erwin the prior year. In addition to Erwin, the indictment further named Biane, Burum and Kirk, describing the overt acts in which they were allegedly involved.
There was a difficulty with the indictment from the outset in that nearly four years had elapsed since the last of the acts alleged in it, and more than four years had passed since some of the alleged offenses. As a consequence, some of the charges used less than straightforward language, indeed tortuous wording, in an effort to get around the statute of limitations, which with regard to most of the offenses stood at three years.
For example, the co-conspirators were not charged with bribery but rather, variously, aiding and abetting Postmus and Biane in receiving and agreeing to receive a bribe, or in the case of Biane, receiving and agreeing to receive a bribe to influence a vote.
The prosecution also pursued a somewhat elliptical charging theory, alleging that the statute had not begun to run until investigators for the district attorney’s office learned of the extortion and bribery scheme from Adam Aleman during an interview/interrogation of him in November 2008. That was, in itself, a prevarication, as a group of Upland residents, calling itself Taxpayers For Fair Resolution, which had misgivings about the tactics being used by the Colonies Partners and its legal team during their legal wrangling with the county over the Colonies project, had approached the district attorney’s office and Ramos himself directly at the time of the $102 million settlement to allege it had been tainted by illicit inducements including bribes and kickbacks. Contained in the indictment were charges of conspiracy; aiding and abetting Postmus and Biane in agreeing to receive a bribe to influence a vote, alternately under Penal Code Section 165 and under Penal Code Section 68; agreeing to receive a bribe to influence a vote, alternately under Penal Code Section 165 and under Penal Code Section 68; a violation of Government Code Section 9054, obtaining a thing of value to improperly influence a public official; violating Penal Code Section 182, obtaining money by false pretenses; violating Government Code Section 1090, engaging in a conflict of interest; violating Penal Code Section 424, misappropriation of public funds; tax fraud; tax evasion; perjury; and forgery.
Furthermore, the indictment did not criminally charge either O’Reilly or Richards, who had been, like Burum, Biane and Kirk, described as uncharged co-conspirators in the criminal complaint filed against Postmus and Erwin in 2010. In particular, omitting Richards, the mastermind of the influence-purchasing element of the Colonies Partners’ pre-settlement activity, while indicting Burum, whose involvement in at least some respects did not rise to that of his older and more politically experienced and politically connected partner, was glaring. There was an undeniable political element to the case in that Richards was well-recognized as a major financial backer of multiple politicians, including Ramos. Moreover, he had been a member of both the San Bernardino County and California Republican Central Committees. Word spread that Ramos had excluded Richards from the indictment for those reasons as well as because San Bernardino County Chief Executive Officer Greg Devereaux, who exercised a degree of control with regard to the district attorney’s office’s budget and who was a friend of Richards and like him a graduate of West Virginia University, had requested that the district attorney do so.
Of note, as well, was that the indictment did not name Matt Brown, who had been Biane’s chief of staff, though it named Kirk, who had been the chief of staff to Gary Ovitt, the third supervisor in addition to Postmus and Biane whose vote had been crucial to the passage of the $102 million settlement. Just as Kirk had set up a political action committee into which a $100,000 check from the Colonies Partners had been deposited in the months following the settlement being ratified by the board of supervisors, Brown had created the political action committee, over which he and Biane had control, which had received another $100,000 check from the Colonies Partners alleged to be a bribe to Biane.
Over the next five-and-a-half years there was vigorous pretrial sparring between the prosecution and defense attorneys for all four of the defendants, with the heavy lifting being done by Burum’s lead attorney, former Federal Court Judge Stephen Larson. Motions to dismiss the case entirely or to dismiss specific charges were made, some of which were granted and some of which were rejected by Superior Court Judge Brian McCarville. McCarville’s rulings were appealed to California’s Fourth District Court of Appeal, which reinstated some of the charges that McCarville had thrown out and dismissed some of the charges that McCarville had let stand. There were further delays while those rulings were appealed to the California Supreme Court.
In early 2016, Larson sought to convince Judge Michael A. Smith to have the indictment thrown out on the basis of prosecutorial misconduct, based on his contention that the prosecution, consisting of the San Bernardino County District Attorney’s Office and the California Attorney General’s Office working in tandem, withheld exculpatory evidence from the indicting grand jury in April 2011. Upon Judge Smith rejecting that request, the matter progressed up the judicial appeal chain until in August, 2016 the California Supreme Court rejected the last stab by the defense to have the indictment dismissed before the case went to trial.
In December 2016, jury selection for the case was undertaken and competed, and the case went to trial before Judge Smith in January 2017. Two juries had been impaneled, one to hear the case against Burum, Biane and Kirk, and the other to determine Erwin’s fate. That bifurcation took place so that evidence inadmissible against Burum, Biane and Kirk but admissible against Erwin, which included his statements to investigators as a search warrant was being served at his home in 2009, could be considered by Erwin’s jury but could also be kept from the jury hearing the case against the other three.
A total of 39 witnesses were heard from. Brown, who had offered testimony that had been damning to Biane before the grand jury in 2011 and who at one point had utilized a hidden recording device to record dozens of conversations with Biane in 2009 and 2010, proved uncooperative when he was called upon to testify at the trail.
Both Postmus and Aleman provided key testimony that undergirded the charges against the four defendants, supporting the accusation that Burum and Erwin had teamed up to blackmail Postmus and Biane to extort them into voting for the settlement. Aleman maintained that the $100,000 that Postmus and Biane each received in donations to their political action committees were rewards/kickbacks for that support. Postmus in his testimony acknowledged that the two $50,000 checks he had received had come to him as a consequence of his vote to support the settlement, but stopped short of acknowledging the $100,000 being a bribe, per se.
The defense, primarily in the form of one of Burum’s attorneys, Jennifer Keller, succeeded in emphasizing Postmus’s admission of heavy methamphetamine use in the 2005 through 2009 time period, and Keller thereby inculcated doubt in the jury with regard to the accuracy of Postmus’s recollections. Defense attorneys for all four defendants made a full court press in seeking to attack the character and credibility of Aleman, which in some measure undercut the heart of the case, as Aleman’s testimony was a central and perhaps even the most powerful element of the prosecution’s case.
Ultimately, after testimony from prosecution witnesses that lasted until August and the decision by all of the defense attorneys not to put their respective clients on the stand nor call any defense witnesses, the defense conceded in its closing arguments that efforts to influence the county’s decision-makers with regard to the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions and settling the ongoing litigation had taken place, but it was strongly asserted that such activity was permissible and constitutionally protected. The defense insisted that the more lurid details of the case, including allegations of extortion and bribery, were outright fabrications that formed the basis of a falsified narrative the prosecution was attempting to sell to the jury.
With the case in the hands of both juries after nearly eight months in trial, In relatively short order, the jury hearing the case against Burum, Biane and Kirk returned not guilty verdicts on all the remaining charges against those three. The deliberations in Erwin’s case were a bit more protracted. After multiple days of deliberations, Erwin’s jury was unable to reach a verdict on any of the charges.
After contemplating retrying Erwin, the prosecution elected to dismiss the charges against him.
In the weeks and months after the acquittals and Erwin’s dismissal, each of the four former defendants filed claims against the county alleging reckless and malicious prosecution, as did the Colonies Partners itself as a separate entity.
Starting in March, 2018, a series of federal lawsuits were then filed against the county by the defendants and the Colonies Partners, which consisted of one by the Colonies Partners alleging $80 million in damages, another by Burum seeking $50 million in damages, one by Erwin seeking to recover $25 million, one by Kirk seeking $40 million and another by Biane seeking $10 million.
The suits allege malicious prosecution, false arrest/imprisonment, fabrication of evidence, fabricated testimony, withholding of evidence, a tainted indictment, negligence, intentional infliction of emotional distress, retaliation, political retribution, irresponsible investigation, conspiracy, breach of contract, intimidation, harassment and civil rights violations. The cases have been consolidated and are to be heard together before U.S. Federal Judge Jesus Bernal in Riverside.
The Colonies Partners and Burum are represented by Larson; Erwin is represented by Raj Maline, who served as his defense attorney during the criminal trial; Kirk is represented by Peter Scalisi, who served as his defense attorney at trial. Biane, who was represented in the criminal matter by Mark McDonald, is represented in his federal civil suit by Dale Galipo.
Those named as defendants in the federal civil suits are the County of San Bernardino; former District Attorney Michael Ramos, district attorney’s office investigators Hollis Randles and Robert Schreiber, and Supervising Deputy District Attorney R. Lewis Cope, who prosecuted the case against the defendants in 2017 in conjunction with California Supervising Deputy District Attorney Melissa Mandel. Ramos is no longer district attorney, having lost his bid for reelection in 2018, largely on the strength of an intensive campaign against him by one of his former prosecutors, Jason Anderson, whose successful electioneering effort was heavily funded by Burum and his associates.
Among the factors that contributed to the decisions to file those civil suits was the provision – that is, the leaking – of communications between District Attorney Michael Ramos and certain individuals including members of the prosecution team relating to various aspects of the criminal case, the decision-making process pertaining to it and the general atmospherics enveloping the case.
Indeed, Ramos’s stance in relation to the Colonies Partners and the settlement case transmogrified significantly over time, as during his initial run for district attorney in 2002 he had drawn a significant amount of his campaign funding from the Colonies Partners and had therefore sought, successfully, to shield the company and its employees and agents from any investigative scrutiny or being subjected to his office’s prosecutorial authority. In the run-up to the 2010 election, however, his loyalty toward his former patrons was overcome by the political necessity of making a strong case for his reelection, and he thus began pressing his staff to launch a prosecution of Postmus and Erwin so it could be trumpeted as one of his accomplishments.
In the march toward trial in federal court, which was previously scheduled to be heard as early as this month but which has now been pushed back at least until September because of the suspension of the court’s calendar due to the COVID-19 crisis, it has become clear that Ramos, as the central defendant in the case, endeavored to hide evidence that might suggest the drive to prosecute the four defendants who went on trial in 2017 arose as much out of both personal vindictiveness and political expedience as it did from a straightforward professional analysis of the actions leading to and facts surrounding the 2006 settlement.
According to a motion for sanctions against the county and Ramos filed by Larson in November 2019, Ramos engaged in what Larson termed “spoliation of evidence based on defendants’ deletion of emails in Ramos’s campaign account, mike@joinmikeramos.com, and deletion or non-production of text messages from Ramos’s personal cellular phone. Plaintiffs believe this ESI [electronically stored information] is relevant to their claims against defendants, because the ESI would tend to show Ramos viewed Burum as a political enemy and abused his position in the DA’s office to investigate [the] Colonies [Partners] and Burum and to eventually prosecute Burum and others.”
In support of his contention that the information that was deleted or not produced was likely relevant to the case the plaintiffs are seeking to make, Larson provided the court with some of the leaked emails and text messages which contained references to the plaintiffs in the civil case when they were defendants in the criminal case. Ramos’s language or characterizations, Larson said, “appear to be overzealous or politically charged.” Larson further noted that Ramos on occasion used two of his campaign’s email accounts “to discuss investigative and prosecutorial actions” rather than utilizing the means of communication available to him as district attorney, thereby blurring his professional prosecutorial function and his political activity.
In making the motion, Larson pointed out that the “spoliation occurred because Ramos shut down the campaign website and emails located at mike@joinmikeramos.com in 2018, after litigation had commenced, and never produced texts from his personal cellular phones.”
The legal team representing the county, Ramos and the other named defendants, headed by Charles Slyngstad of the law firm of Burke, Williams & Sorensen, did not dispute that the campaign email account was “closed” shortly after June 2018, when Ramos lost his bid for reelection as district attorney and that the mike@joinmikeramos.com account is no longer accessible. The county’s legal team also maintains that Ramos routinely deleted texts off of his cellular phone, doing so as a matter of course. The defendants asserted that the plaintiffs had not shown evidence of prejudice or the intent required to warrant the imposition of sanctions, and that as district attorney, Ramos had forwarded emails relevant to the district attorney’s office’s function to his employees, who at that time were involved in prosecuting the four plaintiffs. Furthermore, in a declaration in response to the motion that Larson had filed, Ramos disputed knowing or understanding he was under any obligation to preserve text messages. Slyngstad claimed that Ramos routinely deleted text messages when he received and read them, and that Larson had failed to explain what duty the county may have had with regard to Ramos’s campaign email account and personal cellular phone. It was untrue, Slyngstad maintained, that the county had engaged in the spoliation Larson described. Since the plaintiffs already possess emails and text messages that originated from Ramos or were passed through by him, according to Slyngstad, Larson’s motion was essentially pointless, and the emails and text messages the plaintiffs characterize as missing do not hamper the plaintiffs from proceeding with their case.
According to Larson, the county and Ramos were put on notice in October 2017 that the plaintiffs were purposed to sue the county over the ordeal Burum and the Colonies Partners had been put through.
The range of sanctions that Larson had sought to be applicable if his motion was granted included a terminating one, meaning entering a default judgment in favor of Burum and the Colonies Partners, thus concluding the two lawsuits involving Burum and the Colonies Partners, which seek a total of $130 million from the county, in the plaintiff’s favor.
U.S. District Court Judge Jesus G. Bernal will oversee the suits when they go to trial. He routed the motion filed by Larson to U.S. Magistrate Judge Shashi H. Kewalramani to evaluate it and make determinations, findings and a recommendation.
Judge Kewalramani determined that the county had an obligation to keep Ramos’s text messages sent and received from his personal cell phone and emails from his two campaign accounts intact. The judge rejected Ramos’s assertion that he did not know he was required to preserve his text messages or emails, which as a lawyer he had to recognize constituted critical evidence in the federal suit.
“At the outset, neither party contests that the electronically stored information was deleted by Ramos from Ramos’s personal cellular phone and as a result of closing down the mike@joinmikeramos.com e-mail account,” Judge Kewalramani stated in his ruling. “Here, plaintiffs believe the ESI [electronically stored information] has been irretrievably lost because of their own investigation and defendants’ admissions that the emails in Ramos’s mike@joinmikeramos.com were deleted in 2018 and one of the campaign accounts was closed, that any pre-2016 text messages were lost when Ramos obtained a new cellular phone, and that text messages between 2016-2018 were lost because Ramos regularly deleted them off of his phone. Specifically, plaintiffs point to their limited success retrieving the emails from other custodians, and note, for example, one recipient of emails from Ramos purportedly utilized a program that auto-deletes emails every six months. To the extent other custodians have the emails, plaintiffs argue, it is ‘telling’ that they have failed to produce those emails. Defendants state that they have searched the electronic data maintained by the county for Ramos and other defendants and non-parties, that several individual defendants (not including Ramos) have produced documents from their respective personal email accounts and text communications, and that third parties have produced documents in response to plaintiffs’ subpoenas seeking personal records relating to, among other things, communications with Ramos. The relevant questions are then whether the missing ESI is relevant and whether it is irreplaceable. With respect to the irreplaceable nature of the ESI at issue, ESI ‘often exists in multiple locations,’ and plaintiffs have not proffered expert testimony as to whether the email account and the texts can be restored or replaced with additional discovery. Plaintiffs did, however, provide evidence that they tried to retrieve the lost ESI from third parties. On the other hand, Ramos’s declaration makes clear that he deliberately deleted the text messages and canceled the email account, resulting in destruction. Further, it does not appear that… the county, Ramos, [or] Ramos’s counsel made any attempts to preserve the ESI. Defendants’ arguments that ESI in these locations was not relevant and was cumulative, however, is based on conjecture. Plaintiffs at least cite to evidence from these two sources, and obtained from other sources, that show they are relevant to the issues in this case. Based on this evidence, there is sufficient information to find that the ESI was lost.”
Judge Kewalramani’s analysis continued, “Routine destruction constitutes spoliation where a party ‘had some notice that the documents were potentially relevant to the litigation before they were destroyed.’ An entity and employee defendants can both be under a duty to preserve, and therefore culpable for spoliation of ESI, even if one or the other is directly responsible for the destruction of evidence. ‘A non-party’s spoliation of evidence may be imputed to a party who did not engage in spoliation.’ Plaintiffs argue defendants should have reasonably anticipated litigation by October 2017, when county counsel advised the board of supervisors about potential litigation related to the unsuccessful criminal investigation and prosecution of Burum, or by November 1, 2017, when James Erwin, a plaintiff in the consolidated actions who is not a moving party, filed his complaint. Plaintiffs contend that the relevant ESI was deleted sometime after July 2018, by which time plaintiffs had commenced litigation and even propounded discovery, while defendants argue the deletion occurred shortly after June 2018. Defendants argue that Ramos could not have been aware of allegations against him on November 1, 2017, based on the filing of Erwin’s complaint. Defendants further argue the county did not have a duty to preserve Ramos’s personal emails and texts. Regardless of whether defendants were on notice of pending or anticipated litigation involving plaintiffs in October or November of 2017, it is clear that the emails were lost after the commencement of litigation. [The] Colonies [Partners] filed its complaint on March 1, 2018, and counsel who is representing both the county and Ramos filed a waiver of service on behalf of Ramos on March 14, 2018. Mr. Burum filed his initial complaint on April 2, 2018 and again, the same counsel representing both the county and Ramos filed a waiver of service on behalf of Ramos. Consequently, Ramos, with the assistance of his experienced counsel, had a duty to preserve his emails and text messages following the commencement of the litigation. Instead, Ramos deleted text messages and closed his campaign account and is now claiming he had no idea he was required to preserve such ESI until some recent date—as late as his December 2019 deposition. Ignorance of this obligation of preservation, especially from sophisticated parties who have the assistance of experienced counsel, is not persuasive to this magistrate judge.”
Further, Judge Kewalramani ascertained, “Defendants counter that plaintiffs fail to show that Ramos intended to deprive plaintiffs of any evidence in litigation. Defendants point to the fact that Ramos sent emails and text messages to various individuals at the DA’s office, evincing he did not intend to conceal any communications. Further, defendants argue there is no basis for the motion against the county, a defendant who did not control access to Ramos’s personal phone or campaign email account. Ramos, as a former DA, is a sophisticated party who had the assistance of experienced civil litigation counsel, as least as of March 14, 2018. His explanations that he was unaware of these obligations to retain the emails and text messages that could be relevant and material to litigation he was embroiled in are unconvincing. This is even more so because Ramos, as an experienced criminal practitioner in the California state courts, should be familiar with Cal. Crim 371, which provides: If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. Nevertheless, Ramos continued deleting text messages that pertained to the litigation and deleted his campaign email account from which he corresponded about work and personal matters after litigation commenced and long after litigation was reasonably foreseeable. Consequently, based on these factors, it is reasonable for this magistrate judge to infer that the materials were deleted with the intent to deprive their production to plaintiffs. Although the county’s obligations to preserve the lost ESI are somewhat attenuated, and the parties fail to provide much case law on whether Ramos’s actions are attributable to the county, based on the fact that the county reasonably anticipated the litigation and failed to prevent the destruction of the ESI— including failing to instruct Ramos to preserve ESI—and both the county and Ramos are be represented by the same counsel, the intent to deprive plaintiffs of the text messages and emails can be imputed to the county.”
Judge Kewalramani stopped short of recommending that terminating sanctions be applied against the county, Ramos and the other defendants, “Terminating sanctions are not warranted in this case,” Judge Kewalramani wrote. “Terminating sanctions should be reserved for the most egregious cases of misconduct. The record in this case does not support that plaintiffs are so harmed by the spoliation as to be unable to present their case, and it does not appear that defendants destroyed evidence in direct violation of a court order. Accordingly, the court recommends denying plaintiffs’ motion for sanctions insofar as plaintiffs request terminating sanctions.”
Nevertheless, Judge Kewalramani recommended that an adverse inference instruction be given to the jury that eventually hears the case, meaning, essentially that the jury will be informed that Ramos deleted the texts and emails, and that given the circumstances, it is logical for the jury to draw the inference that the texts and emails contained harsh statements about the plaintiffs in the case which demonstrates that Ramos was acting prejudicially against them.
“Based on the timing and circumstances of the text message and email deletions, the court infers bad intent from defendants’ actions,” Judge Kewalramani stated in his report and recommendation to Judge Bernal.
On March 27, Judge Bernal accepted Judge Kewalramani’s findings, which were filed on February 27, endorsing the conclusion that Ramos had a duty to preserve emails and text messages relevant to the issues being litigated in the suits brought by the Colonies Partners and Burum.
Bernal ordered the county to pay Larson reasonable attorney fees associated with the preparation of the motion, which Larson pegged at $42,589.
“It is shocking that any lawyer, particularly one serving as district attorney, would act in ‘bad faith’ and destroy evidence relevant to an on-going litigation,” Larson said. “I cannot describe the outrage felt by Jeff Burum, the Colonies Partners, and the others who have been subjected to Mike Ramos’ political persecution over this past decade, now only to discover that he destroyed evidence of his nefarious conduct.”
Slyngstad was not panicked by the Kewalramani’s findings and Bernal’s confirmation, which he has maintained has no direct bearing on the case, which he said relates to prosecutorial action taken in good faith against Burum after he utilized money as an influencing agent upon government officials to sway a political decision for his own unlawful financial gain which redounded to the detriment of the citizens of San Bernardino County. Slyngstad has suggested the convictions obtained against Postmus for taking bribes provided to him by Burum validate the criminal charges that the district attorney’s office, in conjunction with the California Attorney General’s Office, identified as applicable against Burum and his co-defendants, which were verified when the grand jury returned an indictment against them in 2011.