Sheriff’s candidate loses appellate fight Moses and associates lose big round in appeals court, ordered to pay plaintiffs’ fees


By Royal Calkins

Monterey County sheriff candidate Joe Moses and two other sheriff’s commanders suffered a big loss this week when an appellate court reinstated a defamation lawsuit filed against them for falsely accusing three political opponents of various crimes four years ago.

Making matters worse for the county government, which has been paying the legal fees for Moses and co-defendants Mark Caldwell and Archie Warren since 2018, the 2nd District Court of Appeal also ordered the defendants to pay the plaintiffs’ fees in connection with the appeal. That figure alone is likely to top $100,000.

The court proceedings stem from Sheriff Steve Bernal’s 2018 re-election campaign against one of his deputies, Scott Davis, then a Salinas City Council member. In support of Bernal, Moses and two other sheriff’s commanders, Caldwell and Warren, held news conferences while on duty to falsely accuse Davis and associates of having embezzled from the Deputy Sheriffs Association and illegally laundering the money. The accusations, also made through news releases and anonymous emails, helped propel Bernal to victory even though the state Department of Justice quickly cleared the Davis camp of any wrongdoing.

As Davis and the other plaintiffs have maintained throughout, law enforcement officials almost never make public accusations at the start of investigations, especially if the accusations are aimed at members of their own agency.  In fact, California’s Police Officers Bill of Rights prohibits such announcements until criminal charges are filed.

The ruling comes in the midst of a hot political race that pits Moses against three other candidates in this year’s campaigning for Monterey County Sheriff. The election is June 7. Absentee ballots will be sent to voters starting May 9.

“Why is the county paying for the misdeeds of its people?” Marina Police Chief Tina Nieto asked after the ruling was issued Tuesday. Nieto, one of Moses’ opponents in the election, received the highly coveted endorsement of the Deputy Sheriffs Association on Thursday.

“The county is paying for misdeeds, mismanagement and the lack of a value system,” she said.

The successful appellants in this case are Davis, former Deputy Sheriffs Association President Dan Mitchell and Davis’s campaign consultant, Christian Schneider. They filed the defamation action against the three commanders shortly after the 2018 election but Monterey County Superior Court Judge Susan Matcham tossed the case out on grounds that Davis and Mitchell were public figures, making it particularly difficult for them to prevail in defamation litigation.

The three-justice appellate panel took testimony a month ago and determined that Matcham should have given Davis, Mitchell and Schneider a chance to prove that Moses and associates knew or should have known their accusations were false. With such a finding, the Davis team would be eligible to collect damages. The justices suggested in their ruling that the Davis group may already have suffered a degree of duplicity and malice that allows even public figures to collect damages in defamation cases.

According to the appellate court’s analysis, Moses and associates began their suspicious activities when the Deputy Sheriffs Association endorsed Davis instead of Bernal. Moses and the other two commanders, all of whom had been promoted by Bernal, strongly supported his re-election and began digging into the association’s finances in search of dirt. They did find expenses that weren’t properly documented and other potentially suspect transactions but the appeals court ruled that what they found didn’t come close to supporting the accusations they made against the Davis camp.

Even so, Moses, Caldwell and Warren, who is now retired, held news conferences to accuse the plaintiffs of embezzling money from the Deputy Sheriffs Association and using some of it to pay Schneider for campaign consulting. They strongly suggested that Davis and others on his side would be going to jail.

The appeals court panel found, however, that some of the expenses challenged by the Moses group had occurred well before Davis had become a candidate and that the Moses group had overstated the amounts in question and failed to show there had been any misuse of association money.

Investigators for the California Department of Justice reached essentially the same conclusion within weeks of the heavily reported accusations.

'(T)hey distorted the evidence in their hands in order to discredit Mitchell and Schneider and to derail Davis’ campaign for sheriff.' 4th District Court of Appeal


The appellate ruling is 16 pages, but three sentences summarize it well:

“A fact finder (a judge or jury) could reasonably find that they distorted the evidence in their hands in order to discredit Mitchell and Schneider and to derail Davis’ campaign for sheriff.

“If respondents had confined their remarks to statements about the DSA office lease and the lack of receipts for certain expenses, they would have simply been criticizing Mitchell’s lack of judgment or poor record-keeping. But when they started using phrases like ‘under the table,’ ‘political paybacks,’ ‘embezzlement’ and money laundering, they crossed into different territory.”

Moses is the early favorite in the race to replace Bernal, who is not seeking re-election after two terms marred by controversy over spending, management, disciplinary procedures and other matters. Moses is receiving support from Bernal, the ag and hospitality industries and what opponent Tina Nieto describes as “the Monterey county power structure.”

Moses has received support from leading Democrats such as former Congressman Sam Farr, but Nieto received the unanimous endorsement of the Monterey County Democratic Party and is receiving strong backing from labor.

Also in the race are Jeff Hoyne, who is chief of the combined Del Rey Oaks and Monterey Peninsula Airport police departments, and Justin Patterson, a deputy in the Sheriff’s Department.

Nieto said the public hasn’t started weighing in yet about the court case and the county’s role in financing Moses’ defense but she said she expects it will become a campaign issue.

Hoyne said in a phone interview that he isn’t familiar enough with details of the court case to express firm opinion but mentioned that the commanders “tried to have it both ways by saying they were acting officially when they weren’t.”

He said the county supervisors should look into the propriety of the spending arrangements and determine “if it is an appropriate use of county funds.”

Patterson put out a press statement on the issue Thursday.

“I want to extend congratulations to my friends, retired Sgt. Daniel Mitchell and deputy Scott Davis for their victory in the Court of Appeals in the case of Daniel Mitchell, et al. v Joseph Moses, et al,” he said.

Patterson called the ruling “a victory for integrity, honor, and the rule of law. Daniel and Scott have dedicated their lives to law enforcement and did not deserve to have their names sullied and reputations defamed by false allegations and lies for political gain.

“This is a victory for all those who believe that even in political campaigns, honesty and integrity still matter.

Referring to Moses,  Patterson said the voters will need to decide “if they want a person of this character and these moral values to hold the highest elected law enforcement position in the county.”

Moses didn’t respond to requests for comment.

County Counsel Les Girard has declined to say how much the county has spent on attorneys for the Moses group. A state Supreme Court ruling allows government agencies to keep costs of ongoing cases confidential.

Moses, Caldwell and Warren asked the county to pick up their attorney costs, saying they were acting in their official law enforcement capacities when they broadcast their allegations. Moses at the time was in charge of the county jail, with no responsibility for investigations outside the jail. Under Sheriff’s Department policy, if the commanders felt crimes had been committed by subordinates, deputy Davis and then-Sgt. Mitchell, they should have taken the matter to the Internal Affairs unit for further investigation.

To defend the trio in the defamation suit, the county hired the Monterey firm of Fenton & Keller almost immediately after the litigation was filed in 2018. County officials later asked the Board of Supervisors to ratify that action, which the supervisors did with one dissent. Luis Alejo voted against the payments.

Girard, the county’s chief attorney, says the commanders will be asked to repay the attorney fees if a court determines they had been properly functioning under their official capacities. It isn’t clear, though,whether that question is actually before the court. The appellate court does not address that issue directly but its synopsis of the facts strongly suggests the justices felt the commanders were operating out of political rather than crime-fighting motivations. Moses and the other defendants have argued that the accusations amounted to constitutionally protected free political speech.

'I believe the county should stop paying for the legal expenses for the respondents.' Supervisor Luis Alejo

Supervisor Alejo said Wednesday that it’s time to revisit the financial arrangement that he opposed from the start.

“I believe the Court of Appeal made a thorough analysis of the facts and the law (and) I believe the county should stop paying for the legal expenses for the respondents as the case is now returned to the lower court,” he said by email.

He also said he wants the county to recover the money already paid to Fenton & Keller.

In their ruling, the justices gave special attention to the endorsement process leading up to the 2018 election. The ruling notes that the Deputy Sheriffs Association, essentially a union, had voted to endorse Davis over Bernal and that Moses then went to Mitchell, the union president, to try to get him to reverse the endorsement.

“Moses’ visit to Mitchell to urge him to change the association’s endorsement of Davis to one for Bernal, and Moses’ displeasure at Mitchell’s refusal, is circumstantial evidence of hostility toward Davis’s campaign,” the ruling states.

Even more significant, the court found, is that an anonymous email sent to DSA members by Moses or his associates accused the Davis campaign of embezzling union money for campaign purposes well before there was even a campaign.

Davis continues to work as a deputy and has expressed interest in potentially running again in the future.

Mitchell suffered a stroke shortly after the accusations were floated and he later went out on disability retirement.

Schneider was a successful campaign manager and consultant until the Moses camp aired the allegations. Since then he has done limited consulting work and has performed considerable research into the Sheriff’s Department and campaign finance irregularities benefiting some of the county supervisors and others in positions of power. The state Fair Political Practices Commission is investigating several of his complaints, including one challenging the way the county awarded a contract to operate the racetrack at Laguna Seca, a county facility, and another regarding Sheriff Bernal’s failure to properly report his use of a former supervisor’s guest house for trysts with at least one of his underlings.

Schneider said he was thrilled with Tuesday’s decision.

“I hope this ruling will now allow fair elections without further interference from the county,” he said by email. “And that the county administration digs deep, accepts responsibility by bringing this to an end, ensuring this never happens again to a candidate, a union or a private citizen.”
Schneider went on to accuse county officials of failing to rein in political activity by on-duty commanders and then obstructing and interfering with the resulting legal process.

During the process, he said, he has come to believe that the Sheriff’s Department buries Internal Affairs complaints, alters documents and countenances lying in sworn declarations.

“I’m glad all three justices saw through the county’s web of lies and ruled decisively in our favor,” said Schneider.

Moses didn’t return a request for comment. In a recent question-and-answer feature in Voices of Monterey Bay, he said he would do it all over again.

“Nearly four years ago now, I discovered irregularities in the finances of the Deputy Sheriff’s Association. It was not an easy decision to make my accusations public, but the more I learned about certain individuals’ efforts to support a candidate for sheriff by means I considered underhanded, the more I knew I needed to do something about it.”

The legal action studied by the appellate court is not the only one arising from the 2018 election. Also pending in Monterey County Superior Court is a lawsuit in which Mitchell, fellow DSA official Ted Avery and the union itself allege that Bernal and other top Sheriff’s Department officials harassed the union officials after the DSA voted to endorse Davis.

In pretrial proceedings, Judge Marla Anderson has ruled consistently in the union’s favor and has instructed the county to attempt to settle the case. County officials have said they were waiting for the appellate court ruling in the case against the commanders before deciding how to proceed on the other case.

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Royal Calkins

About Royal Calkins

Contributing writer Royal Calkins has worked for newspapers in Santa Cruz, Monterey and Fresno. For the past couple of years, he has produced a local news and commentary blog, the Monterey Bay Partisan. He can be reached at

5 thoughts on “Sheriff’s candidate loses appellate fight Moses and associates lose big round in appeals court, ordered to pay plaintiffs’ fees

  1. I respectfully disagree with Chief Nieto, this is not a campaign issue. It’s time for Joe Moses to withdraw his candidacy for Sheriff and retire from the Sheriff’s Office. Joe Moses is corrupt and has clearly disgraced the uniform that few are privileged to wear. I agree with Luis Alejo, it’s time to make these three Commanders pay for their malicious misdeeds and not the taxpayers of Monterey County!

  2. I know Sam Farr. I worked for Sam Farr. Sam Farr is my friend. Someone is giving Sam Farr bad political advice. It’s a shame. I know Tina Nieto. I have worked with Tina Nieto. Tina Nieto is my friend. She is the breath of fresh air that the Sheriff’s Department needs.

  3. The proverbial handwriting is on the wall. This lawsuit will settle out of court, and Monterey County taxpayers will be on the hook for yet another costly lawsuit…Dig deep baby, this one is going to cost us, big-time! I agree with the above comment. Joe Moses should drop out of this race…but he won’t. His integrity may be shot by this issue… Trust is a vital component to the Department and to answer Tina Nieto’s rhetorical question: “Why is the county paying for the misdeeds of its people?” Because the Union allows it! And that is a topic for another day.

  4. In basic terms, they lied. The mere fact that after all of the damage has been done Moses still has the gall to say he “would do it again” is disgusting. If he TRULY felt a crime had been committed he should have had a report taken and had it sent to his departments Internal Investigations division, all of which was never done. This is not something that should have to be explained to a Sheriff’s Office Captain, who coincidentally was promoted AFTER these false allegations was made (I guess when you help your boss win an election a favor needs to be paid back?). One could only hope that Mr. Moses would see the error of his ways and apologize, however I can only imagine that he “will not dignify this with a response.”

  5. It’s clear Joe Moses is not the right choice for our next Sheriff. Moses’ ethics and values have been compromised by his continuous association and loyalty to the most corrupt Sheriff in the history of Monterey’s County. It appears Justice will be served and Davis and Mitchell will have their day in court.

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