An Orange County Superior Court judge heard oral arguments this week on motions that could potentially strike a lawsuit filed against Costa Mesa's police union, its former law firm and a private investigator.
On Monday, in their respective anti-SLAPP motions — Strategic Lawsuit Against Public Participation — attorneys for the Costa Mesa Police Officers' Assn., Lackie, Dammeier, McGill & Ethir and private investigator Chris Lanzillo contended that the lawsuit, which alleges harassment and intimidation, stifles the defendants' First Amendment rights.
The complaint, filed in August by Costa Mesa Mayor Jim Righeimer and Mayor Pro Tem Steve Mensinger, is being used to gain a political advantage, argued Jerrold Abeles, who represents Upland-based Lackie, Dammeier, McGill & Ethir.
"This is a speech issue," Abeles told Judge Gail A. Andler in a Santa Ana courtroom. "This is a political advocacy issue."
The councilmen's lawsuit, which also includes Righeimer's wife as a plaintiff, claims that in August 2012, Lanzillo, who was hired by Lackie, Dammeier, McGill & Ethir, followed Righeimer home one evening from a Costa Mesa bar owned by Councilman Gary Monahan and reported Righeimer as a possible drunk driver.
An officer went to Righeimer's Mesa Verde home and conducted a field sobriety test, which Righeimer passed. The mayor later released to the public a receipt for two Diet Cokes from the evening.
The association cut its ties to the law firm soon after the incident and claimed no prior knowledge of Lanzillo's actions.
But while the firm and police union attorneys argued that what they did over the past few years falls under free-speech rights — such as congregating at City Hall to voice opposition and creating a billboard during the election season — the councilmen's attorneys argued there was illegal activity.
Among the allegations are that a GPS device was placed on Mensinger's car during the 2012 election season, according to the lawsuit.
The device tracked Mensinger's movements and was periodically removed so its contents could be downloaded. The police union has denied any knowledge of the GPS tracking.
"They know they can't win on that," said Vince Finaldi, the councilmen's attorney. "It's not free speech."
Righeimer and Mensinger's defense team is seeking the court's permission to gain additional evidence, known as a motion for discovery.
Finaldi said Lackie, Dammeier, McGill & Ethir, as well as the police association, have refused to give depositions.
He also referred to the firm's "playbook" as a guide to intimidate politicians, who are referred to as "victims." The playbook was on the law firm's website, http://www.PoliceAttorney.com, but has since been taken down.
Sy Everett, representing the police association, said that while the playbook is "distasteful," the association did not author or endorse it, nor have the plaintiffs provided any evidence of the association even being aware of the playbook's existence.
Furthermore, Everett said, the document in and of itself does not condone illegal activity, and the police union shouldn't be liable for what's on the law firm's website.
Abeles added that the playbook doesn't say to "pull out a gun and shoot someone. They say go to a council meeting and raise your voice," which should be constituted as free speech.
Finaldi said there are multiple reasons to conclude that the Costa Mesa's police union knew of the playbook. The material was "all over" the firm's website, including its front page, he said.
Also, Finaldi said, the firm's reputation for aggressive representation of police is why it was hired by Costa Mesa's police union.
Furthermore, at least one Costa Mesa police official, possibly two, moonlighted for Lackie, Dammeier, McGill & Ethir on contract negotiations, Finaldi said.
"They were dual agents," Finaldi said. "They worked for both sides."
Abeles said Lanzillo's 911 call was a form of protected speech.
Having an armed police officer at Righeimer's home, Finaldi said, was done to "shut him up." It was an intimidating act, he contended.
"It works," Finaldi said. "They're scared, and the entire family is scared since this happened, and for good reason."
Finaldi countered the assertion that the councilmen's lawsuit is retaliatory.
"If [they hate] opposition," Finaldi said, "there would have been hundreds of cases."
The councilmen's lawsuit seeks unspecified damages.
As of September, Lackie, Dammeier, McGill & Ethir, after 16 years in business, was on the brink of dissolution. In a letter to a client, partner Dieter Dammeier cited a "mass exodus" of attorneys amid recent "turmoil."
In December, a Superior Court judge refused the request of the police association's attorneys for a hearing to determine if Righeimer, Mensinger and their defense team violated a court order by disclosing information allegedly from the Orange County district attorney office's ongoing investigation. An official from the office called the matter "meritless."
Police association President Ed Everett, brother of attorney Sy Everett, said last month that the councilmen are trying to disparage the city's police force by revealing information from an ongoing grand jury investigation. Grand jury investigations are typically shielded from public view.
"I think it's just horrific that city councilmen would do that," Ed Everett said at the time.
[For the record, 3:58 p.m. Jan. 29: An earlier version of this story should have clarified that defense attorney Jerrold Abeles argued that private investigator Chris Lanzillo’s 911 call about Costa Mesa Mayor Jim Righeimer in August 2012 is a protected form of free speech, irrespective of it whether it was possibly done with malice or in bad faith.]