| CRIMINAL JUSTICE
By Royal Calkins
This article has been updated to include a response from a person named in this story, and to correct and clarify some information.
Following a pivotal ruling by a Monterey County judge, three men allegedly slandered by sheriff’s candidate Joe Moses and two associates are expanding their lawsuit to include other defendants.
The plaintiffs — deputy and one-time sheriff candidate Scott Davis, retired deputies’ union official Dan Mitchell and Davis campaign consultant Christian Schneider — are also preparing to send interrogatories, sets of written questions, to a long list of local notables, including Congress Member Jimmy Panetta, county supervisors John Phillips and Chris Lopez, lame-duck Sheriff Steve Bernal, and several journalists, county officials and campaign managers.
The Davis group sued Moses and sheriff’s commanders Mark Caldwell and Archie Warren for defamation after the Moses group falsely accused them of embezzling and laundering money from the deputies’ union, the Monterey County Deputy Sheriffs Association. Moses and the commanders were acting in support of Bernal’s successful re-election campaign against Davis in 2018.
Interrogatories are sets of questions routinely sent to principals and potential witnesses in civil litigation. In this case, the interrogatories are mainly going to people who were involved in campaigns at the same time as the sheriff’s race of 2018, journalists who reported on that race and others who may have information about the allegations raised in the lawsuit.
Receiving an interrogatory is not a suggestion that the recipient could become a defendant, and does not imply bad behavior.
The lawsuit languished for a couple of years after Monterey County Judge Susan Matcham tossed it out because she felt that plaintiffs Davis and Mitchell were public figures largely immune from defamation litigation. Supreme Court rulings have established that public figures, generally celebrities or public officials, can collect punitive damages through defamation litigation only if they can show that the responsible parties knew the accusations were false.
The litigation got back on track earlier this year. A Southern California appellate court ruled that Moses, Caldwell and Warren, who is now retired, knew the accusations were unsupportable and had acted maliciously.
The successful appeal put the matter back into Monterey County Superior Court. There, Judge Tom Wills ruled two weeks ago that the allegations leveled by Moses and associates did not amount to legally protected free speech. He also agreed with the higher court that Davis, Mitchell and Schneider are not public figures so the suit could proceed.
Wills also ruled that the plaintiffs, in their effort to prove defamation, cannot rely on allegations of criminality that were anonymously emailed to members of the deputies’ union. The emails, presumably authored by Moses, Caldwell or Warren, were the start of their campaign to discredit Davis’s effort to unseat Bernal four years ago. But Wills ruled the dates of the emails’ delivery were slightly outside the statute of limitations period.
The plaintiffs this week directed their lawyers to amend their lawsuit to add Monterey County and Sheriff Bernal to the litigation. Schneider, who has filed numerous formal complaints against county officials, contends county chief administrator Charles McKee and County Counsel Les Girard aided and abetted the defendants from the day the lawsuit was filed. For one thing, county officials persuaded the Board of Supervisors to allow the county to pay the legal expenses of Moses and the commanders even though raising the allegations was not part of their jobs and it still remains to be determined whether they were on duty at the time.
Schneider said county officials also clearly knew who sent the anonymous emails but have withheld that information from the plaintiffs’ attorneys.
Girard, the county’s chief lawyer, said he could not comment on the plan to add the county into the lawsuit. Moses did not respond to a message seeking comment.
Schneider said the allegations ruined his career as a campaign consultant. He has since filed several Fair Political Practices Complaints against various local officials accusing them of violating campaign laws and conflict-of-interest statutes. It appears that his side’s decision to broaden the lawsuit and question a long list of political players could be an effort to expand the scope of the litigation as well as the number of defendants.
Why Panetta, D-Carmel? Because, Schneider said this week, Panetta’s campaign staff overlapped with Bernal’s staff and he and the other defendants are trying to determine whether campaign money, including cannabis industry cash, might have moved from campaign to campaign. Panetta has not been accused of any wrongdoing.
Schneider also mentioned that while Panetta is a Democrat, he crossed party lines to speak at a Bernal fundraiser in February 2018. A news release from public relations specialist David Armanasco applauded Panetta’s participation and said the event had raised $80,000 for the Bernal campaign. Bernal’s campaign finance reports seem to reflect about half that amount. Bernal did not return a message seeking comment.
Interrogatory notices are scheduled to go out in the coming weeks to Panetta, Phillips, Lopez, Bernal, recently retired Undersheriff John Mineau, acting Undersheriff John Thornburg, former detective Kim Smith, former Chief Deputy Kevin Oakley, and retired narcotics detective Brian Pickens.
Also expected to receive notices are KSBW-TV reporter Felix Cortez and others at the Salinas station, and Mary Duan, former editor of the Monterey County Weekly, who wrote a number of stories based on confidential information contained in the anonymous emails.
“This story was badly reported, apparently unedited and posted without any understanding of legal concepts or verbiage,” Duan told Voices after an earlier version of this story was published. “As Mr. Calkins knows — or should know — journalists are protected by a number of laws that prevent anyone from legally demanding access to their notes, their reporting and their conversations. That Voices, an outlet that I helped co-found, doesn’t realize or acknowledge this should be an embarrassment to them.
“Journalism 101 holds that any subject mentioned in a story with legal ramifications should be contacted and asked for comment. Mr. Calkins wholly and utterly failed in that vein.”
The law provides journalists with protections from being required to identify confidential sources or other confidential information in most cases, but no law provides blanket protection from being required to answer other questions before or during trial. California law also states that journalists can be required to testify in criminal cases even about confidential sources if the party requesting the information can establish that the material being sought is critical and that all other means of obtaining it have been exhausted.
Also on the notice list are Don Chapin, founder of the Salinas Valley Leadership Group, and convicted rapist John Fickas, a campaign consultant who has worked for Bernal, Supervisor Phillips and the leadership group. (An earlier version of this article incorrectly reported that Fickas had worked for Lopez’s campaign. That has been alleged in a complaint to the state Fair Political Practices Commission, but it has not been established.)
Several employees of the County Counsel’s Office also are on the list along with campaign managers Brandon Gesicki and Plasha Will, who have been involved with recent sheriff’s races, and campaign manager Brian Higgins. Salinas business owner Ricky Cabrera, Armanasco and others on the Sheriff’s Advisory Council also will be on the list, according to the plaintiffs.
Moses is currently campaigning against Marina Police Chief Tina Nieto for the sheriff’s seat now held by Bernal. The election is Tuesday. By virtue of her runaway first-place finish in the June primary election, Nieto is the favorite but the closing days of the campaign have turned rough with each camp firing accusatory missiles at the other.
Moses and commanders Caldwell and Warren were heavy supporters of Bernal’s re-election bid four years ago. Although there was no official investigation into the embezzlement allegations against the Davis camp, Moses and the others held news conferences accusing the other side of various felonies and making it appear that legitimate investigations were under way. Moses, who is in charge of the county jail, made it seem as though he was acting in his official capacity but he had no authority to conduct such an official inquiry. Within weeks the state Department of Justice determined there was insufficient evidence to justify any investigation.
The appeals court ordered the Moses side to pay the appeal costs of the other side but that amount has not been set.
After the appellate ruling, the Board of Supervisors voted to stop paying the defendants’ legal fees. The amounts involved have not been made public. Girard, the county counsel, has said that if a court finds that Moses, Caldwell and Warren were not acting in their official capacities when they lobbed accusations at the Davis camp, the county could try to force them to repay the money.
Schneider has alleged that the defendants were clearly acting well outside their job descriptions and that, therefore, the county’s decision to pay their legal fees made the county a major contributor to the Bernal campaign. If so, that should have limited the county’s ability to provide legal advice to Bernal or his supporters, he said.
A closely related suit was filed against the same defendants as well as Monterey County by officials of the Deputy Sheriffs Association. The association has prevailed throughout the court process and a judge has sanctioned Monterey County for not settling the suit. In addition to defamation allegations against Moses et al, it accuses the county of unfair personnel practices, partly because the commanders went outside official procedures to aim accusations at some of their subordinates.
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