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The lobbyist who joined a mediation effort to try to resolve litigation over the city of San Diego’s lease-purchase of a downtown high-rise must answer questions he put off during a deposition last month, a judge has ruled.
In a final order released Monday, Judge Joel Wohlfeil said Chris Wahl of Southwest Strategies will have to be deposed a second time to respond to questions his lawyer initially claimed were subject to a privilege exemption and instructed him not to answer.
Wahl began working for Cisterra in early 2020 to respond to a request from then-Councilwoman Barbara Bry for an independent investigation into the Ash Street transaction.
At the same time, Wahl was raising thousands of dollars in political contributions for then-mayoral candidate Todd Gloria and advising his campaign informally.
When he was deposed last month, Wahl refused to answer any Ash Street-related questions, citing the mediation. Wohlfeil ruled that Wahl does not have to testify on mediation work that began early last year, when the mediation agreement was signed.
“The court sustains the assertion of the mediation privilege, the beginning date of which the court finds to be Jan. 21, 2021,” Wohlfeil wrote.
The lawyer for Cisterra Development, the middleman company that sold the property to the city under the 2016 lease agreement, had argued the privilege period should begin months earlier, but the judge disagreed.
The defendants had argued that the privilege exemption should be recognized beginning in October 2020, when lawyers for Cisterra and the city agreed to mediation, not when they signed an agreement in January 2021.
Wohlfeil also ordered the parties in the lawsuit brought by taxpayer John Gordon to hire a third-party referee to monitor all future depositions to help make sure the interviews remain civil.
The referee was initially sought by Cisterra’s lender in the Ash Street transaction, CGA Capital.
Prior depositions in the case seeking to void the city’s lease of the former Sempra Energy headquarters at 101 Ash St. have been marked by name-calling, finger-pointing and a multitude of objections.
“Unless otherwise agreed to by the parties, the resumption of the (Wahl) deposition shall take place within 20 days after the appointment of the discovery referee,” Wohlfeil ruled.
The referee will be paid by the defendants — the city of San Diego, Cisterra subsidiary 101 Ash LLC and CGA Capital — although that expense may be reassigned in the future.
The Gordon legal team and attorneys for the defendants were told to work together to find a referee.
“If the parties cannot agree upon a discovery referee, the parties are directed to appear ex parte to present one candidate to serve as the discovery referee,” the judge wrote. “The court will choose one of the candidates after hearing from counsel.”
The Gordon case is separate from a pair of lawsuits that City Attorney Mara Elliott filed against Cisterra and CGA Capital.
Those complaints say the Ash Street deal and another lease for the nearby Civic Center Plaza violated state anti-corruption laws because a “volunteer” adviser to former Mayor Kevin Faulconer was paid millions of dollars for work on the contracts.
The mediation effort at issue is between the city and Cisterra and its lender — and does not involve the Gordon lawsuit.
The ruling from Wohlfeil did not address a disclosure he made at the beginning of the hearing last Thursday, when the judge stated that the mediator in the city’s lawsuits had contacted him to discuss the cases.
Wohlfeil told the parties in the Gordon case that retired federal magistrate Jan Adler called him that morning, but he quickly ended the conversation because he was not comfortable discussing the matter privately.
Adler has not responded to numerous emails and telephone calls seeking clarity on the purpose of his call to Wohlfeil.
But attorney Michael Aguirre, who represents Gordon, wrote to Adler’s mediation firm, Judicate West, to demand that the retired judge avoid any interference in his client’s case.
The “attempted ex parte contact with the Gordon case judge has drawn media coverage and has placed an unethical cloud over Judicate West,” Aguirre said in his letter.
“We demand that Judicate West stop its (mediator) from any more attempts of unethical, improper ex parte communications with the Gordon case judge,” he wrote.
The City Attorney’s Office has not said whether Elliott knew of or requested the Adler call to Wohlfeil.
“We have no reason to comment on an interaction between two judges,” Elliott spokeswoman Leslie Wolf Branscomb said in a statement.
Michael Riney, the Cisterra attorney said he did not ask Adler to contact the judge in the Gordon case.
“That said, it is quite common for mediators to communicate with presiding judges, and I am entirely confident that both Judge Adler and Judge Wohlfeil would only have acted in an appropriate manner,” Riney said by email.
Faulconer recommended the City Council agree to a 20-year lease-to-own deal for the Ash Street property in 2016. But the 19-story building has been unsafe to occupy for years due to asbestos and other issues.
District Attorney Summer Stephan opened a criminal investigation into the Ash Street and Civic Center Plaza land deals last year, after downtown real estate broker Jason Hughes publicly acknowledged collecting $9.4 million for his work on the leases.
Hughes and his lawyers say he told city officials he expected to be paid for the work but Faulconer and others have said they did not know about the payments.
Source: This post first appeared on sandiegouniontribune.com
