chad d. morgan, sbn 291282 law office of chad d. … · 2016. 7. 21. · plaintiff john mccann is a...

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VERIFIED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL

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CHAD D. MORGAN, SBN 291282LAW OFFICE OF CHAD D. MORGAN1101 California Ave., Ste. 100Corona, CA 92881Tel: 951-667-1927Fax: [email protected]

Attorney for Plaintiff, JOHN McCANN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO – CENTRAL COURTHOUSE

John McCann,

Plaintiff;

vs.

San Diego Building and Construction Trades Council, AFL-CIO,

Chula Vista Voters Against Corruption, a Committee Opposing John McCann,

Tom Lemmon; and

DOES 1 through 25, inclusive,

Defendants.

Case No.:

VERIFIED COMPLAINT FOR DAMAGES; DEMAND FOR JURY TRIAL[Civ. Code § 44; Defamation]

Plaintiff, JOHN McCANN, on information and belief, alleges:

INTRODUCTION

1. Plaintiff John McCann is a candidate for Chula Vista City Council in the upcoming

November 4, 2014 Consolidated General Election.

2. Plaintiff was the subject of a defamatory campaign mailer that Defendants published

to thousands of Chula Vista voters on or about October 11, 2014.

3. Plaintiff is a public figure. As a public figure he must meet a high burden to prove

that Defendants' mailer was defamatory. However, Plaintiff's position as a public

figure does not give political opponents license to, as a result of hatred and ill will,

maliciously, deliberately and intentionally defame him without any regard for the

DocuSign Envelope ID: D5D9256C-C323-4BD3-83C0-5011307E044A

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truth.

PARTIES

4. Plaintiff JOHN McCANN is, and at all relevant times was, a citizen of California and

resident of the City of Chula Vista. Plaintiff John McCann was defamed by the De-

fendant.

5. Defendant SAN DIEGO BUILDING AND CONSTRUCTION TRADES COUNCIL,

AFL-CIO (the “Union Council”) is an association of labor unions comprised of at

least 22 affiliate unions. Defendant Union Council defamed Plaintiff in a campaign

mailer produced by and on behalf of Defendant.

6. Defendant CHULA VISTA VOTERS AGAINST CORRUPTION, A COMMITTEE

OPPOSING JOHN MCCANN, (“Attack Committee”) is a political campaign

committee. Defendant Attack Committee was primarily formed to oppose Plaintiff's

candidacy.

7. Defendant TOM LEMMON (“Lemmon”) is an individual residing in San Diego and

is the Union Council's Business Manager. Defendant Lemmon is also the

Treasurer/Principal Officer of Defendant Attack Committee.

8. The true names of Defendant DOES 1 through 25, inclusive, are unknown to Plaintiff

who therefore brings this Complaint against DOES 1 through 25, inclusive, by such

fictitious names, and will seek leave of this Complaint to show the true names,

identities, and capacities when they have been determined. Plaintiff is informed and

believes and on that basis alleges that each DOE defendant is responsible in some

manner for the events and happenings set forth in this Complaint and proximately

caused the damage complained of to Plaintiff as alleged in this Complaint.

JURISDICTION

9. This Court has personal jurisdiction over Defendants because Defendants do

business, live and/or otherwise maintain their principal place of business in San

Diego County.


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10. The San Diego County Superior Court is the proper venue because the acts

complained of, which are the subject of this Complaint, have all occurred or will all

occur in the County of San Diego, State of California. The relief sought in this

complaint is within the jurisdiction of this Court.

11. Pursuant to San Diego Superior Court Rules, venue for this action, which relates to

matters occurring in the City of Chula Vista, is proper in the Central Courthouse.

BACKGROUND

12. The defamatory campaign mailer was authorized and paid for by Defendant Attack

Committee, which is sponsored by Defendant Union Council.

13. In addition to Defendant Lemmon, the Attack Committee's other principal officers

include: Stacy Owens, Assistant Treasurer; Joe Powell, Principal Officer; and Johnny

Simpson, Principal Officer. Joe Powell is Business Manager/Financial Secretary-

Treasurer of Sheet Metal Workers Local 206 and is Defendant Union Council's

President. Johnny Simpson is Business Manager of Electrical Workers Local 569 and

is Defendant Union Council's Vice-President. Stacy Owens is the Principal and

Political Treasury Manager of the Henry Levy Group, a CPA Firm that advises

political committees.

14. Aside from their affiliation with Defendant Attack Committee and/or Defendant

Union Council, Plaintiff is, at this time, unaware of any other facts that would give

rise to liability for Stacey Owens, Joe Powell, or Johnny Simpson. If Plaintiff later

learns of facts that would give rise to liability for any or all of these individuals,

Plaintiff will seek leave of this Complaint to add them to this action.

15. Defendant Attack Committee, which is sponsored by and solely or primarily funded

by Defendant Union Council is the Union Council's alter-ego and/or agent.

16. Each Defendant, including the Doe Defendants, is each other's agent.

17. Defendants commissioned, wrote, designed, produced, and/or otherwise authorized,

created, and published the defamatory mailer.


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18. Defendants prepared and published the defamatory mailer with the intent of defaming

Plaintiff to further Defendants' goal of ensuring that Plaintiff does not win his

campaign for Chula Vista City Council.

19. Plaintiff and Defendants Lemon and Union Council have had a long and arduous

adversarial relationship.

20. From 2002-2010, Plaintiff served on the Chula Vista City Council. During that time,

Defendant Lemmon was Defendant Union Council's Business Manager and agent, the

position he still holds today.

21. In 2007, Plaintiff and Defendants Union Council and Lemmon were involved in

contentious negotiations with Gaylord Entertainment concerning the development of

a multi-billion dollar Chula Vista bay front project. A key sticking point in the

negotiations was whether the project would use 100 percent union contractors. As a

result of the dispute, the project fell through and Gaylord Entertainment pursued a

different project.

22. If the bay front project had been approved in the manner Defendants envisioned, it

would have created thousands of new union jobs and would have substantially

increased Defendant Union Council's dues paying membership. As a result of the

project failing to proceed, Defendant Union Council, an organization that appears to

have only two employees, lost more than $1 million in annual dues. Much of this $1

million would have been under Defendant Lemmon's control.

23. Defendant Lemmon blames Plaintiff for Defendants' loss of the bay front project, and

as a result, harbors hatred and ill will towards him. The feelings of hatred and ill will

are not only limited to Defendant Lemmon but are also shared by each Defendant and

are pervasive throughout Defendant Union Council's membership.

24. Inspired by the Gaylord dispute between union and non-union contractors, a ballot

initiative was placed on the June 2010 Chula Vista ballot to prohibit the city from

entering into Project Labor Agreements (“PLAs”) with labor unions to require union

labor on public works projects. The initiative, Measure G, passed by 55 percent.


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25. Defendant Lemmon, with funding from Defendant Union Council, led the campaign

against Measure G.

26. Plaintiff signed the rebuttal to the argument against Measure G, which was printed in

the sample ballot. In addition to signing the ballot argument, Plaintiff's wife was very

involved in the campaign to pass Measure G.

27. To help promote the Yes on Measure G campaign, Plaintiff's wife sent a letter to

Chula Vista voters describing how she was campaigning in favor of Measure G on

behalf of her husband, City Council Member John McCann who, at the time, had

been deployed to Iraq. The letter included Plaintiff's home address.

28. Shortly after sending the letter supporting Measure G, Plaintiff's wife received a

handwritten letter that said: “I hope your husband comes home in a body bag.” Since

the letter arrived shortly after sending the letter in support of Measure G, and because

the only organized opposition to Measure G was orchestrated by Defendant Union

Council, Plaintiff believes that the handwritten letter was sent by one of Defendant

Union Council's members and is a representation of Defendants' hatred and ill will

towards Plaintiff.

29. Defendants' ongoing hatred and ill will towards Plaintiff also manifested itself during

the Measure G campaign in the form of harassment to Plaintiff's family at the hands

of Defendant Union Council's membership when one of its members keyed Plaintiff's

car.

30. Measure G's success set the stage for several other anti-PLA initiatives, including

successful measures in Oceanside and San Diego.

31. During the Measure A campaign in San Diego, Defendant Lemmon signed the ballot

argument against the measure. Plaintiff signed the rebuttal to Defendant Lemmon's

ballot argument. This continued to increase Defendants' hatred and ill will towards

Plaintiff.

32. Defendants' hatred and ill will towards Plaintiff continues to this day, and has most

recently manifested itself in the form of the defamatory attack mailer where


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Defendants knowingly and intentionally published to thousands of Chula Vista voters

the false claim that Plaintiff, among other things, is a convicted felon.

FIRST CAUSE OF ACTION

(Libel; Civ. Code § 45)

33. Plaintiff re-alleges and incorporates by reference each of the preceding paragraphs.

PUBLICATION

34. On or about October 11, 2014, Defendant's published a defamatory mailer to

thousands of voters in the City of Chula Vista my mailing them an 11x17 inch glossy

campaign mailer via the United States Postal Service. A copy of the defamatory

mailer is attached to this Complaint as Exhibit A.

IDENTIFICATION

35. Plaintiff's photograph and name was printed across the top on the front of the

defamatory mailer. Plaintiff's name particularly stands out because it is printed in

contrasting red print that is larger than all other text on the page.

36. Plaintiff's name and photograph is used repeatedly on the inside of the mailer.

37. Plaintiff's name is also used on the back of the mailer. Like the front, Plaintiff's name

is in red print that contrasts with the rest of the page.

38. No other candidate or office holder, past or present, is identified by name or

photograph.

39. Average readers are aware that several Sweetwater Union High School District

(“Sweetwater”) board members were forced to leave office for corruption related

charges, but the average reader does not know who any of the Sweetwater board

members are. By mentioning only Plaintiff – the only Sweetwater board member not

implicated in any crime – Defendant maliciously, with hatred and ill will, imputed to

Plaintiff conduct that he did not engage in. Defendant imputed this conduct to

Plaintiff knowing it was false and with the intent of defaming him.

40. To the average reader, every claim made in the the defamatory mailer is about

Plaintiff.


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DEFENDANT'S DEFAMATORY STATEMENTS

41. On its face, the defamatory mailer attached as Exhibit A equivocally states that

Plaintiff was sentenced to a felony during, or as a result of, his service on the

Sweetwater Board of Trustees.

42. On its face, the defamatory mailer also equivocally states that Plaintiff was one of 15

people indicted for corruption during, or as a result of, his service on the Sweetwater

Board of Trustees.

43. On its face, the defamatory mailer also equivocally states that Plaintiff has pled guilty

to misdemeanors and felonies.

44. On its face, the defamatory mailer states, through words and images, that Plaintiff

went to jail as a result of the claims made in the defamatory mailer.

45. Defendants deliberately or recklessly wrote, produced, and designed the defamatory

mailer in a manner that would cause the average reader to impute to Plaintiff the

actions of other persons who were convicted of crimes knowing that the claims

against Plaintiff were false.

46. Defendant intended for readers to believe that the claims Defendant made were true.

47. Defendant intended for readers to believe that the claims were true because, as a

result of Defendant's long-standing adversarial relationship with Plaintiff, Defendant

harbors hatred and ill will towards Plaintiff.

48. As a result of Defendant's actions, readers actually believed the claims Defendant

made were true.

49. None of the defamatory statements were subject to any privilege.

THE DEFAMATORY STATEMENTS ARE FALSE

50. Plaintiff has never been convicted of or sentenced for a felony.

51. Plaintiff has never been indicted for corruption.

52. Plaintiff has never pled guilty to a misdemeanor or felony.

53. Plaintiff has never served time in jail.


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DEFENDANTS KNEW THE STATEMENTS WERE FALSE

54. Defendant is a sophisticated participant in Chula Vista politics, is familiar with the

community's political figures, follows the news, and stays up-to-date on the latest

political happenings in the community. The story of the four convicted Sweetwater

trustees made national news and was one of the most significant local political stories

of the decade. Defendant knows that John McCann was not one of the four trustees

that were convicted of crimes and has deliberately and maliciously defamed Plaintiff

by making readers believe that Plaintiff is one of the convicted trustees.

55. Defendants know the claims against Plaintiff are false because Defendants were

involved in the actions that gave rise to the claims made in the defamatory mailer.

The corruption at Sweetwater began to be exposed after Plaintiff requested an audit

of Scott Alevy's billing records. Alevy was a consultant under contract by both

Sweetwater and Defendant Union Council. The audit uncovered billing irregularities

and Alevy's relationship with Sweetwater ultimately ended shortly after the audit was

requested. The audit increased publicity to the district, which ultimately led to the

conviction of four candidates that had been supported by Defendant Union Council.

56. Defendants also know Plaintiff was not involved in the Sweetwater corruption

scandal because most of the actions giving rise to the indictments and convictions

occurred while Plaintiff was deployed to Iraq. Defendant knows that Plaintiff was

deployed to Iraq at the time because the time frame overlapped with the Measure G

campaign. Defendants were Measure G's primary opponents and Plaintiff's wife

campaigned in support of Measure G on Plaintiff's behalf while he was deployed.

57. In addition to its defamatory claims against Plaintiff, Defendants' mailer had other

factual claims about the district. If those claims were based on Defendants' first-hand

knowledge, then Defendants' knowledge of those facts tends to show that Defendant

also has knowledge that Defendants' claims against Plaintiff were false.


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58. However, if Defendant conducted research to obtain the information used in the

mailer, then Defendants would have discovered and noticed a large number of news

stories showing that Plaintiff was not one of the Sweetwater trustees convicted of a

crime.

59. For any of these reasons, Defendant had no reasonable basis to believe that Plaintiff

is a convicted felon.

60. Defendant's knowledge that its claims against Plaintiff are false also manifests itself

in the manner through which Defendant stated the claims. The question, “Does

School Board Trustee John McCann … Play the Sweetwater Corruption Game?”

suggests that Defendants knew their claims were false. If Defendant believed that the

claims were true, Defendant would not have made the claims through a rhetorical

question.

61. While the rhetorical question helps illustrate Defendant's knowledge that the claims

were false, the impact of the rhetorical question is that the communication induces

the average reader to incorrectly answer the question: yes. When the average reader

considers the communication as a whole, all three pages, all text and illustrations, the

reader's interpretation is that all of the claims are true.

PLAINTIFF'S HARM

62. By publishing the defamatory mailer knowing it contained false statements that were

intentionally designed to make readers believe that Plaintiff was a convicted felon,

Defendants acted willfully and in conscious disgraced of Plaintiff's right to be free

from insult, defamation, and injury to his personal relations.

63. By publishing the defamatory mailer in this manner, Defendants oppressed Plaintiff

by subjecting him to a cruel and unjust hardship in conscious disregard of his right to

run for office and to be free from insult, defamation, and injury to his personal

relations.


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64. The manner in which Defendants prepared the communication deliberately deceived

readers by intentionally imputing to Plaintiff the criminal convictions of other parties.

This intentional misrepresentation concealed material facts known to Defendants and

violated Plaintiff's right to be free from insult, defamation, and injury to his personal

relations.

65. Defendants' publication of the defamatory mailer has harmed Plaintiff's good name

and reputation and has injured his personal relations.

66. Defendants' publication of the defamatory mailer has exposed Plaintiff to hatred,

contempt, ridicule, obloquy and has injured him in his occupation.

67. Defendants' publication of the defamatory mailer has caused Plaintiff both financial

and emotional harm. Plaintiff's emotional harm includes all damages specified in

Civil Code section 48a(4)(a), and his financial harm includes, but is not limited to,

losses with respect to his business, profession, and occupation.

68. Defendants' publication of the defamatory mailer has harmed Plaintiff in his military

career. Plaintiff is an officer in the Navy Reserves, currently serving as a Lieutenant

Commander. The mere suggestion of any impropriety, true other otherwise, could

limit Plaintiff's future assignments or opportunities for advancement in the military.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this court:

1. Award Plaintiff special damages according to proof at trial;

2. Award Plaintiff general damages according to proof at trial;

3. Award Plaintiff punitive damages according to proof at trial;

4. Award Plaintiff his costs of suit and reasonable attorneys fees;

5. For such other and further relief as the Court deems proper.

Dated: October 16, 2014 Respectfully submitted,LAW OFFICE OF CHAD D. MORGAN

By: /s/

CHAD D. MORGANAttorney for PlaintiffJOHN McCANN


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DEMAND FOR JURY TRIAL

Plaintiff John McCann hereby demands a jury trial on all claims.

Dated: October 16, 2014LAW OFFICE OF CHAD D. MORGAN

By: /s/

CHAD D. MORGANAttorney for PlaintiffJOHN McCANN


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VERIFICATION

STATE OF CALIFORNIA )COUNTY OF SAN DIEGO ) (STATE COUNTY WHERE EXECUTED)

I am the Plaintiff in this action. I have read the foregoing Verified Complaint for Damages and know its contents. The same is true of my own knowledge, except as to those matters which are therein stated on information and belief, which, as to those matters, I believe them to be true.

I declare under the penalty of perjury under the laws of the State of California that the foregoing is correct.

Executed this ____ day of October, 2014 in Chula Vista, California.

____________________________JOHN McCANN


��

https://trust.docusign.com

Exhibit A

EXHIBIT

A

EXHIBIT A


chad d. morgan, sbn 291282 law office of chad d. … · 2016. 7. 21. · plaintiff john mccann is a...

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