Tri-City Healthcare loses appeal, wastes taxpayer money, in attempt to justify hostility to Kathleen Sterling

Kathleen Sterling wins; CEO Larry Anderson loses

By putting CEO Larry Anderson on administrative leave earlier this month, Tri-City Healthcare gives the appearance of an institution that might be trying to mend its ways.

Tri-City Healthcare got very personal in its efforts to destroy Kathleen Sterling, a board member who asked too many questions. When Judge Richard Mills wasn't impressed by the testimony of witnesses who were trying to help Tri-City get a restraining order against Ms. Sterling, board RoseMarie Reno suggested that the judge might have taken a bribe.

Perhaps Ms. Reno lives in such a small world that she thinks Tri-City's vendetta is the first that Judge Mills ever came across. She assumed that Judge Mills would be deeply impressed by the fact that a public entity claimed to have discovered a threat in its midst. She may have believed that the judge had never before seen public employees pressured to present overwrought accounts of non-events in an effort to get rid of someone. She must have forgotten that one of her witnesses said he did NOT feel threatened by Ms. Sterling.

These are the winning law firms:

The McMillan Law Firm, Scott A. McMillan and Evan Kalooky for Defendant and Appellant Kathleen Sterling; Spiegel Liao & Kagay and Charles M. Kagay

These are the losing law firms:

Daley & Heft, Mitchell D. Dean, Scott Noya and Lee H. Roistacher;
Horvitz & Levy, David S. Ettinger, Mitchell C. Tilner and Jeremy B. Rosen;
Procopio, Cory Hargreaves & Savitch, Evelyn F. Heidelberg and Gregory V. Moser [an erstwhile school attorney], for Plaintiff and Appellant Tri-City Healthcare District.

The decision states:

"Tri-City Healthcare District (Tri-City) petitioned for protective orders against Kathleen Sterling, an elected Tri -City board member, alleging the protective orders were necessary to prevent Sterling from committing workplace violence against specified individuals. (Code Civ. Proc., 1§527.8.) After a four-day evidentiary hearing, the court denied the petitions, finding Tri-City did not meet its burden to satisfy the required statutory elements for the protective orders..."

Workplace violence? Are they kidding?

The decision continues:

"We summarize the relevant events based on the evidence found reliable by the court. The February 24 Board meeting was scheduled to begin at 3:30 p.m. At about 3:25 p.m., Sterling attempted to enter the Board meeting room, believing the existing sanctions orders applied only during the meetings and not before the meetings. Security officer Crooks, how ever, believed the censure order barred Sterling from entering the room before and during the Board meetings... "

Paralegal says Tri-City report is wrong
She balks at hospital's version of events involving board member Kathleen Sterling
Aaron Burgin SDUT Nov. 11, 2011

This is from the opinion: "Although we agree that prejudicial error analysis requires a review of the entire record, we find Tri-City's approach of highlighting only its own evidence to be unhelpful and arguably misleading.""

Board of Directors

The Tri-City Healthcare District is governed by publicly elected Board of Directors, who represent the residents of Carlsbad, Oceanside and Vista. Click on highlighted names to contact by email.

Larry W. Schallock Chairperson
Cyril F. Kellett, MD Vice Chairperson
Julie Nygaard Secretary
RoseMarie V. Reno Treasurer
Ramona Finnila Assistant Secretary
James Dagostino, DPT, PT Assistant Treasurer
Paul V. L. Campo Member, Board of Directors

Why is Tri-City Medical Center appealing the Superior Court's decisions about Kathleen Sterling?

UPDATE Sept. 30, 2013: KATHLEEN STERLING WINS IN COURT OF APPEAL

By putting CEO Larry Anderson on administrative leave earlier this month, Tri-City Healthcare gives the appearance of an institution that might be trying to mend its ways.


CEO Larry Anderson (now on administrative leave) wields his power in surprising ways.

The decision-makers for Tri-City want to make sure that elected officials see what happens if they don't go along with the political majority. The purpose isn't just to punish Kathleen Sterling, but to keep all elected officials in line.

From Attorney Scott McMillan's website:

July 22, 2011 - Superior Court Judge dismisses three of six counts against client Kathleen Sterling as they violate her rights to Free Speech.

On March 3, 2011, Tri-City Healthcare District filed the lawsuit against Hon. Kathleen Sterling, Director, seeking $100,000 in damages, based on the same set of facts that Tri City based its earlier restraining order proceedings upon. The suit alleged, in part, that her comments and actions were damaging the hospital’s business reputation and that she had injured several hospital personnel during an incident before a board meeting on Feb. 24. Superior Court judge in Vista issued a ruling on July 22, 2011, that struck down part of a civil lawsuit filed by Tri-City Medical Center against board member Kathleen Sterling on that grounds that it appears to violate her constitutional right to free speech. Judge Earl H. Maas ruled three of six counts in the suit are attempts to stop her from participating in hospital board meetings and speaking about hospital-related business.

The counts affected by the judge’s ruling are trespassing, injury to Tri-City’s business reputation and a request to legitimize seven sanctions against Sterling. Although stayed pending the outcome of the appeal on the denial of the restraining orders, three additional counts of battery, assault and negligence are substantively unaffected by the judge’s ruling. [Maura Larkins' comment: These charges were later dropped.]

April 04, 2011 - Client Kathleen Sterling defeats efforts to keep her from her post at Tri City Healthcare District

A judge refused Monday, April 4, 2011, to grant permanent restraining orders against Tri-City Healthcare District Director Kathleen Sterling, saying there was no clear and convincing evidence that Sterling posed a risk to the safety of board members or employees at the Oceanside medical center. Scott McMillan and Kerry Eskenas represented Director Sterling against lawyers of the tony Procopio law firm of San Diego.

Trustee RoseMarie Reno was so taken aback by the fact that the Superior Court judge wasn't impressed by the hospital's evidence that she suggested that the judge might have taken a bribe. She quickly withdrew the comment, but does not seem to have improved her thinking skills.

4th Appellate Division - San Diego
750 "B" Street Suite 300
Tri-City Healthcare District et al vs Kathleen Sterling
September 12, 2013 1:30 for Oral Arguments


See all posts re Kathleen Sterling. Kathleen Sterling's representatives are attorneys Charles Kagay (San Franciso) and Scott Mc Millan (La Mesa).

Daley & Heft law firm (Lee Rosch....?) argues for Tri-City. Tri-City appealed Judge Mills' finding of facts in the 8 restraining orders filed against an elected official who simply did her job, asking questions. Meanwhile the Procopio, Cory, Hargreaves & Savitch law firm (Board general counsel firm) have been paid for billable hours...Mitchell D. Dean, Daley & Heft is also listed on the court website.

Bret Hunt comment:
Wow! All the Tri-City patients will pay for this ridiculous appeal!

Clearly, patients have paid quite a bit more since the following article was written two years ago:

Legal tab against Tri-City trustee tops $100,000
District’s effort against board member is many-pronged
By Aaron Burgin
June 3, 2011

Oceanside — The Tri-City Healthcare District since March has spent more than $105,000 and employed nearly a dozen attorneys from three law firms in legal actions against one of its elected board members.

A judge in April denied the district’s request for a restraining order against the board member, Kathleen Sterling, who they say assaulted several hospital security guards at a Feb. 24 board meeting. The district is appealing.

Officials are suing Sterling for $100,000, alleging that her disruptive behavior has damaged the district’s reputation and embarrassed employees.

Sterling has filed counter actions, including a claim that the district is suing to silence her, and a suit to recoup her legal fees.

Legal and political experts said that while numbers are not out of the ordinary for the number and complexity of the litigation, the fact that a public district has taken these measures against an elected board member is extremely rare.

“In my 40 years in observing government, I haven’t seen anything like this,” said Bob Stern, the president of the Los Angeles-based Center for Governmental Studies and a longtime political observer. “Then again, the behavior that is alleged is unprecedented for an elected official.”

Sterling, a three-term board member who was re-elected in 2008, has frequently clashed with fellow board members, hospital administrators and staff. The district has censured her eight times for what officials call a pattern of disruptive behavior, including calling fellow board members “Nazis” and attempting to tape record closed-session meetings.

As part of her censures, Sterling has forfeited her $100 meeting stipend and must attend board meetings from a separate conference room via teleconference.

By seeking a restraining order, the hospital hopes to make Sterling stay at least 100 yards away from her colleagues and be banned from hospital property except in a medical emergency. She would have to attend meetings from another building, not just another room.

District officials said they have had to hire outside legal firms because of the number of issues they face with Sterling. They said they expect the tab to rise, but said it’s worth it to restore order to the board and keep the public safe.

“You can’t put a price on the public’s safety,” said board member Charlene Anderson, who compared Sterling to Jared Loughner, who seriously injured U.S. Rep. Gabrielle Giffords in a Jan. 8 mass shooting in Arizona. “Those people (in Arizona) would’ve gladly given $70,000 to stop him. I am that afraid something like that could come up with Sterling.”

Sterling said such allegations are ridiculous, part of ongoing district efforts to ostracize her for not being a rubber-stamp vote for CEO Larry Anderson.

“I feel I’ve been targeted because I ask questions and request supporting documents before I make an informed voting decision,” Sterling said. “But they are taking the district’s limited resources and shifting it into the lawyers to use the legal system as a bully pulpit and doing it taxpayers expense.”

Sterling’s attorney, Scott McMillan, called the district’s spending on the actions frivolous.

“What an abysmal use of taxpayer money,” McMillan said. “And for what? How much money are they going to spend before someone says enough is enough?”

McMillan said the spending is questionable because district voters have a mechanism to oust Sterling — a recall election — which no one has attempted. A recall election would cost the district $270,000 for a mail-in ballot or $860,000 for a precinct election. The district could not sponsor such an election, but district voters could.

“If they have a problem with Kathleen Sterling, they need to bring it to voters, not bring it to a judge,” McMillan said.

According to invoices provided from Procopio, the district’s contract legal firm, the firm billed the district $68,445 between March 1 and April 30, including more than $54,000 in attorneys fees for 166 hours of work and $14,000 in legal-related expenses. This does not include costs incurred during May, when the district filed its appeal. Five attorneys, who bill at $335 an hour, a clerk and a paralegal have worked on the restraining order for the firm.

The district hired Michael Curran of Encinitas-based Curran & Curran for the lawsuit. Curran billed the district $3,060 for work from Feb. 28 to March 3, but the district is expecting another bill in coming days. Curran bills at $360 an hour.

Sterling has filed a countermotion against the district that claims that the district legal actions are a “strategic lawsuit against public participation.”

Tri-City on April 21 hired a third firm to assist Curran on Sterling’s claim and other aspects of the dispute. Encino-based Horvitz and Levy has billed the district $33,559 for work performed from April 21 to May 30, Tri-City legal counsel Allison Borkheim said. Four attorneys have worked on the Sterling case, who bill the district from $290 to $460 an hour...

Anti-SLAPP motion wins: Court of Appeal Says Online Comments by Mother, Grandmother of Plaintiff’s Child Were Opinions

Update Dec. 2013: Darren Chaker Sentenced to Federal Prison for Bankruptcy Fraud

See my earlier post about Darren Chaker.

See Court of Appeal decision in Chaker v. Mateo.

Panel Says Online Comments by Mother, Grandmother of Plaintiff’s Child Were Opinions
Defamation Suit Over ‘Deadbeat Dad’ Reference Held SLAPP
By KENNETH OFGANG
Metropolitan News-Enterprise
October 5, 2012

Two women who referred to a San Diego man, in an online posting, as a “criminal and a deadbeat dad” who “may be taking steroids” were expressing protected opinions and cannot be liable for defamation, the Fourth District Court of Appeal ruled yesterday. Div. One affirmed a San Diego Superior Court judge’s ruling that the suit by Darren D. Chaker against Wendy and Nicole Mateo was a strategic lawsuit against public participation. The justices agreed with Judge Timothy Taylor that the suit arose from speech on a public issue, and that the action is barred by the First Amendment.

The evidence, Justice Patricia Benke explained, showed that Nicole Mateo became pregnant during a brief relationship with Chaker, resulting in contentious paternity and child support litigation in Mateo’s home state of Texas. In 2010, comments about Chaker and his forensics business, including claims that he was involved in fraud and prostitution, as well as the deadbeat dad and steroid references, began showing up in the comments sections of websites such as Topix, where he had posted a profile, and the Ripoff Report.

Anti-SLAPP Motion

Chaker attributed some of those statements to Nicole Mateo and her mother Wendy Mateo, and sued both of them, as well as others. Wendy Mateo brought an anti-SLAPP motion, which the judge granted.

Benke, like the trial judge, rejected Chaker’s argument that the allegedly defamatory statements related to a purely private dispute, thus falling outside the scope of the statute. The justice cited Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, which held that the Internet is a public forum, as well as cases holding that public statements about private conduct—such as criticism of the treatment of young athletes by their coaches— may be matters of public interest for purposes of Code of Civil Procedure Sec. 425.16.

“Like the court in Wilbanks, we view the Internet as an electronic bulletin board open to literally billions of people all over the world,” the jurist wrote. “...The Internet is a classic public forum which permits an exchange of views in public about everything from the great issues of war, peace, and economic development to the relative quality of the chicken pot pies served at competing family restaurants in a single small neighborhood.”

She went on to say:

“The statements posted to the ‘Ripoff Report’ Web site about Chaker’s character and business practices plainly fall within in the rubric of consumer information about Chaker’s ‘Counterforensics’ business and were intended to serve as a warning to consumers about his trustworthiness.”

By posting his profile on Topix, she added, Chaker “made his character a matter of public interest as the term has been interpreted.”

Because the comments deal with a matter of public interest, Benke wrote, the burden shifted to Chaker to show that he was likely to prevail. But because the First Amendment protects opinion, she said, he could not make such a showing.

Opinion, Not Fact

Citing a number of recent cases holding similar online comments to be opinion, rather than assertions of fact, the justice said the statements challenged by Chaker had to be understood in the context of the litigation between him and Nicole Mateo, particularly since they “were made on Internet Web sites which plainly invited the sort of exaggerated and insulting criticisms of businesses and individuals which occurred here.”

Attacking Chaker as “dishonest and scary,” the justice said, “is on its face nothing more than a negative, but nonactionable opinion.

A different result might have been reached, Benke suggested, if, instead of mere generalized attacks on the plaintiff’s character, the defendants made allegations of specific wrongdoing at specified times and places.

The reference to Chaker as a “criminal,” the justice added, was arguably defamatory, but is nonactionable because Chaker was convicted of a crime, although the conviction was expunged.

The case is Chaker v. Mateo, D058753