New Developments in City Lawsuit | Smith Targets Ex-Mayor in Amended Claim

FILE PHOTO: Ben Tansey | SouthPasadenan.com News | Protected by Police, South Pasadena building inspectors confer prior to entering Smith home back on October 18, 2019.

South Pasadena dance teacher Alison Smith this week accused former Mayor Marina Khubesrian of “intentionally” retaliating against her for comments Smith, accompanied by her three young children, made at an August 21, 2019 City Council session detailing her frustration over the city’s handling of a dispute over responsibility for a sewage spill at her Hanscom Drive home. When Smith spoke, Smith’s legal claims had been festering for over a year and a half.

In an amended complaint this week, Smith said Khubesrian and former City Manager Stephanie DeWolfe, along with other unnamed city employees, used “threats, intimidation and/or coercion” to interfere with her First Amendment rights by sending city police and inspectors to enforce what Smith claims was a fraudulently obtained code inspection warrant, and then held a press conference where they publicized the alleged violations. In addition, the complaint states, “the City alleged at the press conference that [Smith] was a liar, and her residence was deemed a public nuisance.”

Although Smith’s lawsuit previously lodged retaliation as one of several causes of action against the city, the new filing doubles down by clearly alleging “(the) retaliatory acts were intentionally taken by then Mayor Marina Khubesrian individually and on behalf of the City.” However, it does not amend the lawsuit to make Khubesrian a named defendant.

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The amended claim is aimed at perfecting the civil rights claim Smith filed after the October 18, 2019 inspection. Last month, Judge John Kralik harshly rejected the city’s motion to strike the original claim and questioned the city’s actions in seeking the warrant. But he also questioned the viability of Smith’s complaint under California’s Bane Act, which requires an allegation that the defendant improperly sought to prevent the plaintiff from doing something they had a right to do. And while he vigorously implored the parties to seek a settlement, he gave Smith’s attorney, Edward Torres, 20 days to refashion the Bane Act claim or file a different one.

Torres did both. In addition to offering a revised account of the actions constituting the Bane Act violation, he filed a new cause of action for “abuse of process.” He alleged the city and its Inspector, Craig Melicher, “misrepresented the facts” in the inspection warrant application and acted intentionally to “circumvent” the court’s jurisdiction by going to a different judge who did not know of and was not informed about the pending litigation between the parties—the action Judge Kralik had questioned.

The complaint goes on to say that Melicher, a city contractor, submitted a declaration that misleadingly used a picture of a neighbor’s house to justify the need for the inspection at Smith’s home. It says the warrant was one element of a plan to “cover up” the retaliation. Others were the city’s failure to provide “numerous written records” pertaining to the case, including soil samples the city took from Smith’s yard; and the use of different judge to obtain the warrant.

Khubesrian responded to the allegations in a Feb. 25 email to the South Pasadenan News. “I never violated the Bane Act (Civil Code Section 51) by interfering or attempting to interfere with Ms. Smith’s First Amendment right to speak at a City Council meeting by threatening, intimidating, or coercing her — which is what the Bane Act prohibits. To the contrary, as Ms. Smith knows, she was able to speak at the Council meeting even though her lawsuit was already pending. Ms. Smith is also aware that I had sought to mediate a settlement at an early stage but was not successful due to no fault of my own.”

Khubesrian emphasized that Smith’s original claim and lawsuit were “public knowledge and in my view, she was allowed to speak her mind about her frustration with the claim and litigation process with the City.”

The former mayor did not mention it, but it is worth noting that after Smith’s presentation, Khubesrian waved to Smith’s children from the dais and thanked them “for coming and supporting your Mom.”

“As the then-mayor,” Khubesrian said in her statement this week, “I couldn’t let my friendship with Ms. Smith interfere with the litigation process. It is obvious that as mayor I did not have unilateral authority to settle lawsuits. I listened to Ms. Smith’s comments and relied on the City attorney’s advice as well as the City Manager on how to resolve this lawsuit.

“I understand that Ms. Smith was frustrated about the settlement process and the fact that the City had not agreed to pay her financial demands,” Khubesrian added. “It is unfortunate for both the City and the Smiths that the matter still has not been resolved, but I do not have any input into that process.”

Smith previously filed declarations from herself, her attorney and former City Council Member Stephen Rossi and his wife Sheila Rossi, who variously assert in greater detail their belief that Khubesrian, who’d been in Smith’s home, prompted the inspection. In his declaration, Stephen Rossi said that the night before the city’s press conference, Khubesrian contacted him and, among other things, told him “that the city would work with [Smith] on the penalties if she agreed to mediate—essentially acknowledging that the alleged code violations were a negotiating ploy” in the litigation.

The declarations, and other material Rossi filed as public comment with the city, make other assertions, such as the city falsely reported material facts about the sewage spill to state environmental regulators; that the city may have violated a 2011 Consent Judgment requiring it to monitor sewer lines; and that it failed to comply with a state-mandated sewer management plan.

The complaint also raises the controversy over a set of email messages Khubesrian distributed using fake aliases to attack or intimidate political opponents. Khubesrian later acknowledged and resigned over these actions, which have been the subject of a Los Angeles District Attorney investigation.

The complaint asserts Khubesrian “publicly admitted” that the alleged retaliatory acts against Smith were taken intentionally. It also states the fake emails were sent “because [Smith] exercised her First Amendment rights.” Smith told the South Pasadenan News the first of these two assertions was an error and the second reflected some “wrong wording,” as none of the known fake emails referred to the Smith case. Smith said both statements would be clarified in a subsequent filing.

 

 

Ben Tansey is a journalist and author. He grew up in the South Bay and is a graduate of Evergreen State College. He worked in Washington State as a reporter in a rural timber community and for many years as an editor for a Western electric energy policy publication based in Seattle. He and his wife Karin, an arts administrator from El Sereno, live in South Pasadena.