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Related Article: Insurer to pay S.B. County $45 million-plus towards Colonies settlement

Friday, August 23, 2013 – 09:00 a.m.
Last Modified: Sunday, August 25, 2013 – 10:15 a.m.

What’s the motivation behind the efforts of official’s in San Bernardino County, California, to withhold news of a sizeable arbitration award from the public?

Or maybe the question should be who is hurt, and who is helped by the disclosure?

It would appear the county is unhappy with news of a hefty arbitration award, of more than $45 million, surfacing. As of this week, sources say the county’s official spokesperson refuses to acknowledge that the arbitration ever actually took place. Even though the matter has appeared on the Board of Supervisors closed session agenda more than 50 times.

No, the spokesperson wasn’t wearing a Dean Martin mask when he made the statement.

I know, roll-on-the-floor-laugh-out-loud! But it really isn’t amusing at all. The concept of open government, at least in San Bernardino County, has went out the door big time!

Well here’s a news flash. When various county officials start telling people, as in many, on the QT, about the award, all confidential privilege is relinquished.

In other words, you can’t have it both ways.

In 2011, the county entered binding arbitration against the California State Association of Counties – Excess Insurance Authority (CSAC-EIA). The arbitration arose from an insurance claim made by the county, in an effort to recover a portion of the 2006 settlement with Colonies Partners L.P.

Three arbiter’s, from the Judicial Arbitration and Mediation Service (JAMS), found the county liable for a portion of the settlement paid to Colonies, in their ruling against CSAC-EIA. The county was awarded more than $45 million, including accrued interest, of the original $102 million settlement with Colonies.

What’s interesting is great lengths the parties have gone to conceal the arbitration award.

Both the county and CSAC-EIA are public agencies. The latest story, placed out there by the county, alleges that one of the two parties, CSAC-EIA, wanted a confidentiality clause inserted into the binding arbitration agreement.

CSAC-EIA wanting such a clause makes absolutely no sense.

San Bernardino County Superior Court records reveal that CSAC-EIA actually went to court on February 15, 2012, in an effort to stop the county from proceeding to collect.

The initial legal filing, in the court case, was made “under seal”, and as of this date, all subsequent pleadings in the case, as well as the arbitration proceedings, currently remain “under seal” or confidential.

Yes, I said confidential!

California appellate courts have frowned on the use of such agreements in order to keep the public in the dark. So what makes this situation any different?

The answer. Nothing!

The aforementioned court proceedings ended on August 14, 2012, following a Judge’s denial of second attempt by CSAC-EIA to obtain a preliminary injunction against the county.

Interestingly, at the time of the arbitration, a presentation was also being made to a Special San Bernardino County Grand Jury for the purposes of bringing an indictment related to the settlement. Yes, while county lawyers were making a case to recover money from one of its insurance carriers, other county officials and attorneys, were taking the position the settlement was bad.

You read it correctly! While outside attorneys, hired by the county, had already set out to make the case that they, the county, intentionally violated the developers property rights, and owed the developer damages, other county attorneys and officials, were taking the position before a grand jury, that the settlement was allegedly corrupt!

Ultimately, all three JAMS panel arbitrators sided with county on its insurance claim.

Sources also indicate a second claim will be litigated soon.

The whole situation kind of smacks of talking out of both sides of your mouth!

Now back to the original question. Who is hurt, and who is helped by this revelation?

You’re comments are welcome, as always.

Here’s the actual docket from the aforementioned superior court case. You’ll note all the references to sealed records.

Maybe the county will say this electronic record is an hallucination!

Case CIVDS1201496 – CSAC EIA-V-CO OF S.B. ET AL

Action:  

MOTION RE: (UNDER SEAL) FOR RECONSIDERATION OF PLA APP FOR PRE INJ AND MTN TO COMPEL FILED BY PLAINTIFF CALIFORNIA STATE ASSOCIATION OFCOUNTIES
08/14/2012 – 8:30 AM DEPT. S37

BRYAN F FOSTER, JUDGE  
CLERK: LORI MOWLES  
COURT REPORTER KELLY MAGGS 13384  
COURT ATTENDANT ROBERT DELGADO  
 
APPEARANCES: 
ATTORNEY STEVEN HASKELL PRESENT FOR PLAINTIFF/PETITIONER.  
ATTORNEY MITCHELL NORTON, DCC & KEVIN DORSE PRESENT FOR DEFENDANT/RESPONDENT.  
 
PROCEEDINGS: 
PREDISPOSITION HEARING HELD  
 
MOTION 
CALIFORNIA STATE ASSOCIATION OF COUNTIES’S MOTION FOR RECONSIDERATION OF PLTF APPLIC FOR INJ/MOTN IS HEARD.  
ARGUED BY COUNSEL AND SUBMITTED. 
 
COURT FINDS: 
CALIFORNIA STATE ASSOCIATION OF COUNTIES’S MOTION FOR RECONSIDERATION OF PLTF APP FOR INJ/MOTN IS DENIED.  
NOTICE WAIVED. 
ACTION – COMPLETE 
=== MINUTE ORDER END === 

Case CIVDS1201496 – CSAC EIA-V-CO OF S.B. ET AL

 

Viewed
Date
Action Text
Disposition
Image
  08/14/2012 8:30 AM DEPT. S37  MOTION RE: (UNDER SEAL) FOR RECONSIDERATION OF PLA APP FOR PRE INJ AND MTN TO COMPEL FILED BY PLAINTIFF CALIFORNIA STATE ASSOCIATION OFCOUNTIES Minutes  DENIED    
  08/07/2012  PLA REPLY IN SUPT OF MTN FOR RECONSIDERATION OF PL A APPL FOR PRELIM INJUNC/MTN TO COMPEL * FILED   Not Applicable    
  08/01/2012  THE ATTACHED DOCUMENT IS FILED UNDER SEAL-OPPO TO PLA MTN FOR RECONSIDERATION * FILED   Not Applicable    
  07/13/2012  FILE PUT IN IMAGING AREA   Not Applicable    
  06/27/2012  THE ATTACHED DOCUMENT IS FILED UNDER SEAL FILED.   Not Applicable    
  06/22/2012  FILING FEE PAID BY CALIFORNIA STATE ASSOCIATION OFCOUNTIES FOR MOTION FEE   Not Applicable    
  06/22/2012  MOTION RE: (UNDER SEAL) FOR RECONSIDERATION OF PLA APP FOR PRE INJ AND MTN TO COMPEL FILED BY PLAINTIFF CALIFORNIA STATE ASSOCIATION OFCOUNTIES   Not Applicable    
  06/11/2012  PLTFS REQ FOR CONSIDERATION OF ADDITNAL EVID   Not Applicable    
  06/11/2012  ORDER GRANTING DEFENDANTS MOTION TO COMPEL ARBITRATION AND STAY THIS ACTION AND DENYING PLAINTIFFS FILED   Not Applicable    
  05/24/2012  [UNDER SEAL PURSUANT TO COURT ORDER]PLA REPLY IN SUPT OF REQ FOR CONSIDERATION/REOPEN HRG * FILED   Not Applicable    
  05/21/2012  THE ATTACHED DOCUMENT IS FILED UNDER SEAL FILED   Not Applicable    
  04/20/2012  SEALED DOCUMENTS PER ORDER OF 02/22/12 RECEIVED.   Not Applicable    
  04/10/2012  COURT ORDERS MATTER STAYED.  Not Applicable    
  04/10/2012 8:30 AM DEPT. S37  MOTION RE: PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Minutes  DENIED    
  04/03/2012  DFNTS COMPENDIUM OF NON-CALIFORNIA LEGAL AUTHORIT IES IN SUPPORT OF REPLY(RCVD UNDER SEAL) FILED.   Not Applicable    
  04/03/2012  REPLY OF THE COUNTY OF SAN BERNARDINO, SAN BERNARDINO COUNTY FLOOD CONTROL TO PLTFS OPPOSITION TO MTN TO COMPEL(RCVD UNDER SEAL) FILED   Not Applicable    
  04/03/2012  FILE TO S37   Not Applicable    
  03/27/2012  OPPOSITION TO MOTION TO/FOR DEF MTN TO COMPEL ARB AND STAY ACTION;DEC/MARCUS FILED BY CALIFORNIA STATE ASSOCIATION OFCOUNTIES   Not Applicable    
  03/23/2012 8:30 AM DEPT. S37  MOTION RE: PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION Minutes  Continued    
  03/21/2012  REPLY OF CALIFORNIA STATE ASSOCIATION OFCOUNTIES TO IN SUPT OF APPL FOR PRELIMINARY INJUNCTION/OSC FILED   Not Applicable    
  03/19/2012  FILE KEPT IN LR   Not Applicable    
  03/19/2012  FILE TO S37   Not Applicable    
  03/16/2012  DECLARATION OF JEROME H. FREIDBERG RE OPPO TO PLA PETITION FILED   Not Applicable    
  03/16/2012  NOTICE OF MTN & MTN TO COMPEL ARB & STAY ACTION FILED BY THE COUNTY OF SAN BERNARDINO, SAN BERNARDINO COUNTY FLOOD CONTROL.   Not Applicable    
  03/16/2012  OPPOSITION TO MOTION TO/FOR PETITION FOR PRELIMINARY INJUNCTION FILED BY THE COUNTY OF SAN BERNARDINO, SAN BERNARDINO COUNTY FLOOD CONTROL   Not Applicable    
  03/01/2012  FILE SENT TO LR   Not Applicable    
  02/27/2012  PROOF OF PERSONAL SERVICE OF COMPLAINT FILED UNDER SEAL FILED.   Not Applicable    
  02/23/2012 8:30 AM DEPT. S37X  MOTION RE: TEMPORARY RESTRAINING ORDER Minutes  Pre-D Complete    
  02/22/2012 8:30 AM DEPT. S37X  EX-PARTE MOTION RE: APPL FOR ORDER TO SEAL RECORDS Minutes  Pre-D Complete    
  02/21/2012  FILING FEE PAID BY CALIFORNIA STATE ASSOCIATION OFCOUNTIES FOR EXPARTE MOTION FEE   Not Applicable    
  02/15/2012  ON MISC. PETITION – CIVIL (UNLIMITED) FILED 02/15/2012 OF CALIFORNIA STATE ASSOCIATION OFCOUNTIES FOR CALIFORNIA STATE ASSOCIATION OFCOUNTIES, ATTORNEY BERKES CRANE ROBINSON & SEAL LLP ADDED.   Not Applicable    
  02/15/2012  SET DEFAULT DEPARTMENT TO S37       
  02/15/2012  PETITION FILED (CIVIL)  Not Applicable    

MOTION RE: PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
04/10/2012 – 8:30 AM DEPT. S37

BRYAN F FOSTER, JUDGE  
CLERK: LORI MOWLES  
COURT REPORTER STACEY DETTMERS 13303  
COURT ATTENDANT ROBERT DELGADO  
 
APPEARANCES: 
ATTORNEY PETER MARCUS PRESENT FOR PLAINTIFF/PETITIONER.  
ATTORNEY KEVIN DORSE & JEROME FRIEDBERG PRESENT FOR DEFENDANT/RESPONDENT.  
 
PROCEEDINGS: 
PREDISPOSITION HEARING HELD  
 
MOTION 
CALIFORNIA STATE ASSOCIATION OFCOUNTIES’S MOTION FOR PRELIMINARY INJUNCTION IS HEARD.  
ARGUED BY COUNSEL AND SUBMITTED. 
 
COURT FINDS: 
CALIFORNIA STATE ASSOCIATION OFCOUNTIES’S MOTION FOR PRELIMINARY INJUNCTION IS DENIED.  
 
CALIFORNIA STATE ASSOCIATION OFCOUNTIES’S MOTION TO COMPEL ARBITRATION IS GRANTED.  
 
COURT ORDERS MATTER STAYED PENDING RESOLUTION  
OF BINDING ARBITRATION.  
DEFENSE COUNSEL TO PREPARE ORDER  
ACTION – COMPLETE 
=== MINUTE ORDER END === 


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