Wednesday, March 30, 2011
Alhambra Suit Against Ex-Firefighter Held Not SLAPP
By a MetNews Staff Writer
A suit by the City of Alhambra against a former president of the local firefighter’s union for breaching a settlement agreement in a prior lawsuit was not a strategic lawsuit against public participation, the Court of Appeal for this district has ruled.
Justice Kathryn Doi Todd, writing for Div. Two, said the city was entitled to proceed with its claim for declaratory relief as to whether Robert D’Ausilio violated his agreement not to participate in “represent, participate, or advocate for, any Alhambra employee(s),” including AFA members, “in any matter involving the CITY and/or its agents or employees . . . from September 21, 2007 through October 28, 2012.”
D’Ausilio had sued the city in 2006, claiming that an investigation into his workplace conducted violated his civil rights. In 2007, he entered into a settlement in which he agreed to withdraw from union activities in exchange for settlement payments and other benefits.
In seeking declaratory relief, the city claimed that the ex-union president violated the agreement by participating in a 2008 demonstration against the city, as well as by advocating that other members participate in the demonstration. Los Angeles Superior Court Judge Jan Pluim ruled that the declaratory relief claim did not arise from protected activity, and that D’Ausilio’s anti-SLAPP motion was frivolous.
The judge awarded more than $5,000 in attorney fees to the city.
Doi Todd, in a March 8 opinion certified yesterday for publication, said the trial judge was correct. While the original suit by D’Ausilio obviously arose from protected activity, she explained, the city’s claim for declaratory relief was based on contract and thus did not constitute a SLAPP.
The justice went on to say that D’Ausilio failed to show that the trial judge erred in awarding attorney fees. She also concluded that in light of Pluim’s ruling that the motion was frivolous, and the defendant’s failure to show otherwise, the appeal must also be considered frivolous and the city is entitled to attorney fees on appeal as well.
Attorneys on appeal were Gregory G. Petersen and Ramon Trujillo of The Petersen Law Firm for the defendant and Joseph M. Montes, Timothy L. Davis and Traci I. Park of Burke, Williams & Sorensen for the city.
The case is City of Alhambra v. D’Ausilio, B220136.
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