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Lodi: Lawsuit should be tossed out
City claims gifts to Hays, invalid contracts warrant end to Donovan's lawsuit
Flying former City Attorney Randy Hays to Montana and sponsoring his son's race car amounted to illegal gifts and mean Lodi shouldn't have to pay millions of dollars in a lawsuit, current city attorneys wrote in a Friday court filing.
Additionally, improperly signed contracts and expired legal limits are even more reasons a judge should throw out former environmental lawyer Michael Donovan's demand for fees, lawyers said in the document.
Donovan, who headed Envision Law Group and represented the city for years in a pollution case, has claimed the city owes him more than $6 million in unpaid fees, plus more than that amount in other fees.
Lodi, in the meantime, is suing Donovan on claims including fraud and insufficient counsel. He had received more than $13 million by January 2004, when a federal judge overseeing the case said in open court that the whole case was flawed and only designed to make money.
"From the beginning, Donovan's true aim was to turn Lodi's environmental problems into a profit center for himself and his law firm," Gregory Call, one of the city's current lawyers, wrote in Friday's filing.
The day after the judge's remarks, the City Council fired Donovan and then-city attorney Randy Hays and began trying to settle the case that involved more than 100 parties and had lasted for years. The News-Sentinel is among those who have since settled.
At an August deposition, Donovan acknowledged sponsoring Hays' son's race car and also said he paid to fly Hays to Montana for a personal visit — neither of which Hays ever declared. Hays was the one who for years reviewed and signed off on Donovan's legal bills.
Legally, all public officials must declare gifts of more than $50. Anyone who makes such payments to a city official "forfeits any rights or interests flowing from its contract with the city," current city attorneys wrote in Friday's motion.
Further, they argued, the contracts between Lodi and Donovan's law firm weren't even valid because neither the city manager nor the mayor had ever signed them. Hays was the only city official who signed the contracts with Envision, and with the law firm that had previously employed Donovan.
In the Friday filing, the city asks the San Francisco judge overseeing the case to grant their motion for "summary judgment," meaning that Lodi wants the judge to rule that there are no matters to warrant a trial. Such a move would throw out Donovan's part of the lawsuit.
His San Francisco attorney, Kevin Cifarelli, was out of the office for the day and did not return a message left Friday afternoon. Donovan, whose Bay Area law firm disbanded and closed shortly after he was terminated, could not be reached for comment.
In addition to the improper gifts to Hays, the city alleged that Donovan did not file a lawsuit against the city before the statue of limitations had expired.
Donovan filed a claim — which precedes a lawsuit — against the city in April 2004, and the city rejected it the next month. Under state law, Donovan then had six months to file a lawsuit, but that did not happen until he counter-sued the city 16 months after his claim was rejected.
Donovan has argued that he filed additional claims, while the city argued that they were virtually identical to the one that had already been rejected.
City attorneys also said that Donovan had plenty of notice that he would not receive further payments. Less than a month after he was terminated, Donovan in a related court case referred to an e-mail from current City Attorney Schwabauer, in which he said, "The City Council does not want one more dime paid to Envision under any circumstances."
The matter is scheduled to be heard in December before San Francisco Superior Court Judge Richard A. Kramer.
Contact reporter Layla Bohm at layla@lodinews.com.
First published: Saturday, October 7, 2006
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