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Court throws out county suit against Cunan

Delaine Fragnoli
Managing Editor
2/16/2011

Plumas County Superior Court has thrown out Plumas County’s lawsuit against former District Attorney Jeff Cunan.

Cunan had filed a demurrer with the court. A demurrer challenges the legal adequacy of a suit. A judge can deny the demurrer, in which instance the case proceeds. The demurrer can be granted with a leave to amend; in other words, the party making the claim gets a do-over. Or, the judge can grant the demurrer without leave to amend.

In a ruling dated Jan. 28, visiting Judge of the Superior Court Ersel Edwards granted Cunan’s demurrer. The county did not request the right to amend its complaint in the event the demurrer was sustained. Even if it had, Edwards wrote, “The Court does not see any reasonable possibility that County could amend its complaint … to cure the identified defects.”

The ruling followed oral arguments Jan. 10.

Edwards ruled, among other things, that the county did not provide sufficient facts to establish personal liability on Cunan’s part.

According to the ruling, the court must liberally construe a complaint, and if it “appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good.” In other words, the burden of proof is on the party asking for the demurrer.

Cunan responded to the ruling, “This frivolous lawsuit was a textbook lesson in government waste.” He blamed “disgruntled and incompetent” county officials, including the county administrative officer, the county auditor and the new district attorney, and said the suit was prompted by “personal vindictiveness for the professional criticisms I’ve made over the years.”

The lawsuit prompted a defamation claim by Cunan against County Administrative Officer Jack Ingstad for comments he made to Feather Publishing. The comments appeared in Feather Publishing’s story about the lawsuit (Nov. 10, 2010).

The Board of Supervisors voted in December to deny Cunan’s claim. He has six months to take further action. Cunan said last week he is keeping all of his legal options open and called upon voters “to do the rest.”

County supervisors were set to discuss the court’s decision in closed session yesterday, Feb. 15.

Ingstad declined to comment.

 

Background

The whole brouhaha began last fall when the county filed suit alleging Cunan did not follow proper procedure with funds from the bad check diversion program and was personally liable to the tune of around $15,000.

According to court papers, the bad check diversion program had at least $12,160.47 that Cunan assumed from his predecessor when he took office Dec. 31, 2002.

After taking office and continuing through May 13, 2010, Cunan collected more than $22,255.39 in funds for the bad check program.

The problem, according to the county’s complaint, was that the funds sat in a bank account first at Placer Savings and then at Plumas Bank, when they should have been deposited into the county treasury.

The county alleged checks drawn on or withdrawals from the account occurred outside the county appropriations process and, thus, did not have the blessing of the Board of Supervisors.

Cunan argued in his demurrer that there has never before been a single published case in which a county went after its district attorney for such acts while in office.

Edwards disagreed — but he had to go back to 1901 to find such a precedent. In that case, Kern County’s district attorney was accused of retaining fees for his personal use.

Plumas County never alleged that Cunan retained any of the funds for personal use. Cunan said at the time, “I used district attorney monies solely for district attorney services in a way that saved Plumas County taxpayers thousands of dollars. There was no mishandling of money whatsoever.”

 

Arguments

In his demurrer, Cunan outlined four arguments. One, the relevant government codes were inapplicable to the facts of the case.

Two, the county’s complaint was “unintelligible and uncertain” about the alleged causes of action, dates of misconduct and damages or recovery sought.

Third, the county’s action was barred by the statute of limitations.

Last, the alleged facts did not support a claim for an accounting.

Edwards devoted the bulk of his decision to analyzing the pertinent penal and government codes in answer to Cunan’s first argument.

Basically, Cunan argued that “any expenditure he authorized in his discretion as district attorney constituted a ‘county charge’ that did not have to be appropriated (by the Board of Supervisors) in order to be lawful and to bind the county treasury.”

In agreeing with Cunan, Edwards used a kind of cart-before-the-horse reasoning. Penal code requires a board of supervisors to declare there are sufficient funds available to fund a bad check program before a district attorney can create such a program.

Because such a program existed when Cunan took office, “it must be inferred that County adopted a resolution declaring that it had sufficient funds available to fund the program,” wrote Edwards.

Thus, the county could not meet its burden of proof that Cunan’s expenditures from the check diversion program were in excess of sufficient available funds, nor that they were unauthorized under the applicable penal code or any other applicable law.

Edwards found against Cunan on issues two and three. “The allegations … are sufficiently clear to apprise the defendant of the issues that must be met,” he wrote.

He found that while the alleged behavior in question commenced outside the three-year statute of limitations, the alleged behavior continued within the three-year timeframe, and so was fair game.

Edwards agreed with Cunan on his fourth argument, saying Cunan was no longer a salaried officer subject to the government codes in question.

 

 

 

 

 

 

 

 


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