‘Outrageous’ Fee Demand on Filner’s Accuser

     SAN DIEGO (CN) — A Superior Court judge called San Diego City Attorney Jan Goldsmith “outrageous” for requesting $47,725 in attorney’s fees from longtime city employee Stacie McKenzie, who sued the city for being harassed by former Mayor Bob Filner.
     Judge Timothy Taylor denied the city’s request for attorney’s fees in a tentative ruling on July 7, which he reiterated in court the next day.
     “I saw you on television the evening after the verdict,” Taylor told Goldsmith. “There you were saying you were sorry what happened to her.
     “For you to turn around and say you’re sorry, but we want $47,000, is outrageous. And you can tell my former colleague I said so.”
     McKenzie, a 32-year employee in the city’s Parks and Recreation Department, was one of several women who filed sexual harassment claims in 2013 against the mayor who never finished his first term. He eventually pleaded guilty to false imprisonment and battery.
     McKenzie said Filner touched her breasts and buttocks and asked her on a date at a city event in April 2013.
     In March this year a unanimous jury found that Filner had harassed McKenzie, but because they split 10-2 over whether the conduct was severe, she was not awarded damages.
     McKenzie originally filed a $500,000 claim, which was rejected.
     Deputy City Attorney George Schaefer argued that based on civil procedure code, the city should be awarded expert witness fees and post-offer defense costs.
     The city originally offered McKenzie a $7,000 settlement and upped it to $25,000 before trial. She rejected both offers.
     Under civil procedure, the court can use its discretion to require a plaintiff pay “a reasonable sum” to cover costs of expert witnesses in a trial. The “cost-shifting” statute is intended to encourage plaintiffs to settle by “penalizing parties who fail to accept reasonable pre-trial settlement offers,” according to case law the city cited in its motion.
     Since McKenzie did not accept the city’s settlement and the jury ruled in favor in the city, civil procedure finds the plaintiff “shall pay the defendant’s costs from the time of the offer,” the City Attorney’s Office said.
     The city said it was owed a mandatory cost award because half of McKenzie’s claims were brought under the civil code. The other half were brought under the Fair Employment and Housing Act.
     But McKenzie argued that attorney’s fees for claims brought under FEHA cannot be recovered “unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.”
     She also claimed the cost award requested under civil procedure is superseded by the Fair Employment and Housing Act’s discretionary standard: that such costs be awarded to prevailing defendants only if the court finds the action was frivolous.
     Because the claims were not frivolous, no costs are recoverable, McKenzie said.
     When Judge Taylor chastised the city for asking McKenzie to pay the fees, Deputy City Attorney Schaefer blamed Filner, saying, “The client makes the decision, not the City Attorney’s Office.”
     Be that as it may, the judge said, San Diego “is better off from the departure of the mayor,” and they have McKenzie and the other harassed women to thank for it.
     Schaefer told Taylor the City Attorney’s Office was already investigating Filner before McKenzie went public, but the judge was unimpressed, calling the request for fees a “poor strategic move by risk management.”
     “The jury may have found the conduct was not tortious, but that does not mean it was upstanding,” Taylor said.
     He ordered each party to bear its own costs.
     “Frankly, the city’s effort to obtain a cost award against a loyal and longtime employee does not reflect well on the judgment of the City Attorney’s Office,” Taylor wrote in his tentative ruling. “Rather than punishing her with a cost judgment, the city should actually thank plaintiff for helping to bring to light the former mayor’s unseemly and career-ending conduct.”
     One of McKenzie’s attorneys, Dan Gilleon, said Goldsmith used the Filner scandal to “promote himself at the cost of the taxpayers.”
     “The judge is correct: This was not a close call. Only a politician, not an attorney, would blame their client and act the way he did,” Gilleon said.
     The City Attorney’s Office declined comment.

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