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DFG likely to appeal class ruling in pike lawsuit

Diana Jorgenson
Portola Reporter
9/8/2010

For more than a year, the class action lawsuit of eastern county citizens and the city of Portola versus the California Department of Fish and Game over economic impacts of the Pike Eradication Project was out of public sight, until Judge Hilde’s ruling to certify the plaintiffs as a class a couple of weeks ago.

 

In an update to Portola’s city council at its regular meeting Aug. 25, City Attorney Steve Gross reported he attended a case management conference for the court to meet with attorneys from both sides of the pike economic impact lawsuit the previous Monday to discuss procedural issues and timelines.

“At that case management conference, the attorney for the state of California informed the court that they were working on their writ as we spoke, which means they will file a writ to appeal the court’s decision. Based on that representation by the state, the court stayed everything for a month,” Gross said.

Speaking on behalf of the Department of Fish and Game, Jordan Traverso, deputy director of Communications, Education and Outreach, declined to comment.

“The department has a longstanding policy that prohibits us from commenting on ongoing litigation,” he said.

Judge Hilde’s comprehensive, 22-page ruling granted class certification with three subgroups. Class A is comprised of persons and entities having businesses in the Lake Davis area that filed claims with the California Claims Board that were rejected.

Class B is composed of persons and entities owning real estate in the area that filed claims that were rejected, and Class C is for persons, entities or political subdivisions injured by the 2007 poisoning that filed claims that were rejected.

Class C consists of the city of Portola, but was designed to incorporate Grizzly Lake Resort Improvement District and Plumas County should they file, which they did not.

Judge Hilde found sufficient commonality in the complaints filed with the Victims’ Compensation Board to qualify as a class, with differences accounted for by the three subclasses.

She also found it beneficial to avoid multiple lawsuits since more than 102 litigants had retained class counsel. Since more claims were filed with the claims board than retained counsel — up to 200 according to estimates in the ruling — it is possible those claimants might also file suit.

Anyone who did not file a claim with the state in 2008 would be ineligible to join the suit at this point.

According to Hilde’s ruling, individual damages would still require proving and would be determined through an administrative proceeding at a later date.

David Diepenbrock, attorney for individual plaintiffs, and Gross, attorney for Portola, both emphasized going to trial was not the only way the case could proceed.

They continue to talk to legislators about creating legislation to provide compensation to those claiming damages from the poisoning of Lake Davis.

Senator Dave Cox was supportive of the idea, but because of state budget problems, he felt he needed the governor’s support. Since Cox’s death, the attorneys are looking for another legislator to champion their cause.

“It would be more efficient and save everyone money,” said Diepenbrock.

At the last city council meeting, Gross also brought a resolution before the council for an addendum to the contract between the city and the plaintiffs’ law firms, Diepenbrock Harrison (Sacramento) and Robertson and Benevento (Reno, Nev.).

The addendum adds clarity and strength to the city attorney retaining complete control and veto power regarding the city’s claim before the state.

Gross said the original agreement stipulated the same, but a recent Supreme Court decision regarding contingency fee arrangements in class action suits, made it advisable to clarify the language. The council approved the resolution before going on to discuss the case.

In answer to a question from citizen Bill Mainland as to how this veto power affected the other plaintiffs, Gross replied, “Not at all. The city only has veto powers over the settlement of its claim and with respect to the strategy regarding its claim. The city couldn’t veto any settlement with respect to any other plaintiff.”

He also explained contingency fee arrangements. “What we have here basically provides that we (the city) don’t pay money unless we prevail in the lawsuit. The recovery of the fee is based on the success of the lawsuit.”

Gross felt that the percentages in the contract (17 percent of net recovery to the city if settled before it goes to trial and 33 percent thereafter) were “favorable costs to the city.” He said generally 33 percent of the amount recovered went to attorney fees before trial and up to 40 percent thereafter.

Citizen Larry Douglas asked Gross how long the suit was likely to take.

Gross responded, “This could be a complex case. It’s not likely to be resolved in less than a year.”

But, Gross said, “The good news is: The class was certified. The state now has an uphill battle to appeal and overturn that decision.”

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