Lawyer claims case dismissed in Ollar-Burris matter
County disagrees, says not true
A strange twist emerged Wednesday involving a complicated Placer County lawsuit targeting former planning commissioner Michelle Ollar-Burris and others. Brigit Barnes, an attorney for land planner George Wasley issued a press release Wednesday afternoon stating that the case against her client had been dismissed. Wasley is listed among the defendants in a lawsuit filed by the county that includes Ollar-Burris. The lawsuit alleges those involved conspired in a lot-splitting scheme that possibly bilked the county out of $4 million. A call for comment by the Journal to Placer County counsel was met with surprise when Valerie Flood, supervising deputy attorney, said the case had not been dismissed. Flood said the county plans to file an amended complaint, for which they have 30 days to do so from an April 9 court ruling, and continue with their lawsuit. Flood explained that the defense won a motion, but it did not result in a dismissal “and we don’t anticipate a dismissal on George Wasley.” “We’ll be filing an amended complaint to flesh out some of the allegations,” Flood said. “We fully expect it to just keep moving forward.” When contacted by the Journal, Barnes said the judge had issued a ruling and if the county does not respond with an amended complaint, then she can file a motion for dismissal. Barnes also sent The Journal a court copy of the judge’s decision. The tentative ruling stated that the plaintiff, who is the county, “has failed to allege fraud with sufficient particularity.” Barnes said if the county chooses to amend the complaint, “they better be very careful what they allege.” “We’ve been through two years of discover now and they know and I know they have no case against George Wasley,” Barnes said. Barnes said it would be an “abuse of their obligations to the law” if the county amends their complaint. Flood said the county stands by its investigation. She added that Wasley, as well as other defendants in the case, have pleaded the Fifth Amendment and refused to testify for fear of criminal charges. “We actually haven’t heard his side of the story officially,” Flood said. “Even without his side of the story, we have quite a bit of information. We’re still in the discover phase of the case and because of the defendants taking the Fifth Amendment, we’re not anywhere near going to trial yet.” Ollar-Burris is accused of conspiring with Grass Valley consultant George Wasley and Sacramento developer and attorney Thomas Van Horne to subdivide several lots without going through a final subdivision map process. A final map process is more costly than the parcel maps approved for the properties in question. Ollar-Burris was unavailable for comment as of press time. Specifically, the county lawsuit charges that the three violated the state Subdivision Map Act, county planning ordinance and state business and professions code. Last year, the county hired special counsel Richard Crabtree to investigate the matter at a cost of $130,000 to taxpayers. That number does not include the considerable time and effort county staff has put into the case that so far has moved very slowly. In its discovery, the county estimated the cost that the land developers in the suit avoided by not following property rules is about $4 million, according to statement from Anthony La Bouff, Placer County Counsel in an August Journal report. The Journal's Jenifer Gee can be reached at jeniferg@goldcountrymedia.com or post a comment.
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Jennifer: The only "strange" thing about the "twist" described in the article is Barnes' issuance of a press release announcing a minor procedural victory, as if it were a substantive victory. Barnes made a technical motion called a demurrer on the basis that the complain filed by the County as against Wasley did not allege, with sufficient particularity, the acts that constituted his alleged fraud. The court granted the motion (or sustained the demurrer to be precise) but as is nearly always the case, gave the county "leave to amend" which just means that Valerie Flood has to include more details in the complaint. Which, as an experienced litigator, she could do in her sleep. This is just a little chess game that lawyers play as prelude to the actual trial that will eventually occur.
Quite interesting, did not the District Attorney originally turn-down the case due to insufficient evidence? Then our “lovely” Board of Supervisor’s decided to commit taxpayer funds to civilly prosecute a citizen of the county? What a great group they are!
Flood refers to the defendants as citing the “Fifth Amendment” for failure to testify. She wordsmith’s it in a way to make it appear sinister that someone chose to not testify about allegations made against them in a court of law. Flood probably graduated from “Joe’s Auto Repair and Law School,” and she needs a refresher course in law. No one has to testify for against themselves in a court of law: that is a Constitutional Right: it is up to the one(s) making a complaint to prove their complaint. If they cannot make the charges stick then there is no case.
If the defendants in this case are found to not have violated any laws, and I am certain this issue has cost them plenty to defend, then it would appear the defendants should file a malicious prosecution charge against Placer County, and severally against the County Counsel.
Again, if the District Attorney did originally decline to prosecute since there appeared to be no valid basis, and the Board of Supervisor’s decided to pursue this matter civilly through use of taxpayer funds, then they too should be charged with malicious prosecution. And quite possibly re-called.
The DA declined to prosecute because the DA does not have any deputies with the expertise to prosecute a complicated white-collar crime involving thousands of pages of documents and land records. The civil lawsuit made sense, because there is no need to prove the case "beyond a reasonable doubt" to a unanimous jury of 12. In a civil case, you need only convince 9 of the 12 jurors and the standard of proof is a "preponderance of the evidence" or simply "more likely than not."
Very un professional conduct by the attorney representing the client defendant.
You're exactly right, Gulliver. Thanks for your comments.
Gulliver: A "White Collar" felony is the same as a "Blue Collar" felony. What is the county's end game for civil prosecution in this matter?
Rabidog: I don't claim to know what the county's litigation strategy is, but it's a pretty good guess that the strategy is to push for a 7-figure settlement to be paid by Ollar and her cohorts, or failing that, to try the case and get a $4million verdict.
This is a huge victory for George Wasley!!! Basically Wasley's attorney filed a motion asking for the case to be dismissed because over the last two years of discovery, the County has not presented any evidence of wrongdoing. The judge agreed and dismissed Wasley from the case. The county has 30 days from April 9th to amend the complaint that supports the alleged violation. Basically the judge is saying I am dismissing the case against Wasley, but County I am going to give you a second chance and in the next 30 you can present evidence as to why Wasley should be put back in the case. Given that the County has not presented any evidence in the last two years, chances are slim they are going to suddenly find something in the next few days.
Next Tom VanHorne will file the same motion and the judge will also dismiss him. And of course Michelle Ollar-Burris will file the same motion and the judge will dismiss her. And for the County it will be game over.
After that the three defendants will file for malicious prosecution and violation of their civil rights... and the County will be screwed-- or better put the taxpayers will be screwed for the almost one million taxpayer dollars the Board of Supervisors squandered on this.
We then need to look at why this happened. Just as Warren Burns was kicked off the Assessment Appeals Board and silenced because he asked too many questions about the supervisors putting together sweetheart deals with a solar power company... so Ollar-Burris asked too many questions and was making too many waves. She needed to be eliminated and silenced. Well the game is about over for the County and the BOS and I cannot wait to see what pops up.
When the County moved forward with the filing of their civil suit based on an investigation report full of "most likely(s)" and nothing solid (that is why the DA did not pursue); I predicted that we the taxpayers would most likely end up paying for this senselessness. I have stayed silent all these months watching this all play out. I read the Judge's decision off the County website and it is a dismissal of all counts against Mr. Wasley. Call it what you want. Yes, the County can amend. Amend and waste more of our taxpayer money. Why would they do this? Because our County has a very long history of not being able to say we made a mistake. As to kcampbell's comments, you are exactly right. This all started because Ollar-Burris asked questions and made waves. Maybe I am wrong, maybe this does make sense. The sense that the BOS wanted her gone at any cost. And yes, we the taxpayers are paying that cost. My question is how long are we the taxpayers going to stand for this?
kcampbell: The defense motion, called a demurrer, does not test the plaintiff's evidence, but only tests the legal sufficiency of the complaint. The only defense motion that could test the sufficiency of the County's evidence is a motion for summary judgment. That is not the motion that was recently ruled on. Even if such a motion were made, it would not be granted, because the defense would have to show that there is no "triable issue of fact." Trust me, that is a very difficult standard to meet. I very much doubt that the defendants will even make such a motion, particularly since the defendants cannot submit their own testimony, having all refused to testify under the 5th amendment.
Several people have used the term "malicious prosecution." Even if the county lost at trial, there is no way on earth it would be held liable for malicious prosecution, as Ollar's conduct, objectively viewed, would allow a reasonable judge or jury to infer that she violated the subdivision map act. That is not a guarantee that a judge or jury would actually make the inference and find her liable, butr a plaintiff is not liable for malicious prosecution so long as the plaintiff, advised by counsel, has a reasonable belief in the viability of the case. So please, stop the posturing and bluster.
That was a hilarious explanation, kcampbell, and thank you for the comedy routine. Let us know when Bruce Kranz and Mary Michelle Ollar Burris Smith Jones Pinetree Hill in Dale Bunnyhopper Rushingcreek (or whatever combination of names she uses next) are getting together for their next development project.
CanyonRat-LOL very good!
Quartering lots may be legal but in this case it was unethical. How many sweetheart backroom deals were and still are being made to circumvent the true meaning of the Subdivision Map Act. It has made some people very rich and trust me it is done quickly and quietly.
Rabidog: Good luck with that. As this case has proceeded, the D.A.'s office has indeed found more than sufficient evidence to prosecute civily since that initial statement.
Hey folks....Ollar-burris and "friends" continue to spit in our face. Last fall they blantantly continued their illegal activity on their Sun Valley Rd project. Despite more than three complaints from residents, the county did not appear on their rather large side road project until the exact day that the illegally removed trees had been trucked out. There was large equipment and 14 straight days of loud excavation before they showed up. Project was done by that time. So now, they have a large enough road to their other properties (including water and power) with no permits that will allow them to split again. They removed over 100 trees and fouled Cod Fish creek. Yes, several agencies filed against them, but so what? It's done! This is how they get away with their activities and the county somehow is very busy elsewhere. Jennifer Montgomery, you really need to look into your own back yard now that you are supervisor. These folks don't continue to get away with this stuff without help.
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