By Marsha Sutton
The case of former Del Mar Union School District superintendent Sharon McClain, who was hired in September 2008 and released March 31, 2010, vs. the DMUSD is moving along, with a hearing heard May 6 and one coming up May 20.
The hearing on May 20, filed by McClain’s attorney, Los Angeles-based Dale Gronemeier, is a summary adjudication to ask the court to rule on the issue of termination notice.
“It seeks to determine that Dr. McClain was not given proper notice of the termination meeting on March 31, 2010,” Gronemeier said. “The basic fact is she was given notice of that meeting on March 29. The contract in our view requires that she be notified at least 30 days in advance.”
Calling it a “no downside motion” other than the $750 filing fee, Gronemeier said, “If you lose, it doesn’t mean anything except that there may be factual disputes and you have to go to trial on it.”
If the judge rules in McClain’s favor, he said it means that “it is determined that they didn’t give the proper notice.”
But Ryan Church, an attorney with the law firm of Stutz Artiano Shinoff & Holtz, disagreed.
“In her motion, she’s saying that the district had a contractual obligation to give notice, and they did not give notice,” said Church, who is working with the school district’s legal counsel Daniel Shinoff on the case. “The court cannot rule on whether or not the district did or did not give the proper notice because that’s a jury decision.”
The school district’s attorneys are opposing the motion and are making a distinction on what the judge can and cannot decide. Church said the court can only decide whether or not that obligation exists, and cannot determine whether or not the district breached any contractual obligation.
“Our position is that the plaintiff is asking the court to do something they cannot do. That’s an issue for the jury to decide,” Church said. “Our position is the court can only determine whether or not a duty exists.”
A hearing held May 6 ruled on a motion for judgment filed by the district’s attorneys that attacked four different causes of action. “The judge agreed with us on one of them, and the other three will remain intact,” Church said.
Both attorneys said many of these motions are minor. “Pleading disputes aren’t very interesting,” Gronemeier said.
A motion with larger implications will be heard by the court July 8, which was filed after Gronemeier subpoenaed former DMUSD school board member Steven McDowell for a deposition.
“We filed a motion to quash that subpoena,” said Church, explaining that the deliberative process privilege prevents public board members from being deposed and bars judicial inquiry into the motives of public officials.
“You’re not supposed to be able to take board members’ depositions,” he said. “That’s been a law for quite some time. The voters can question their decisions, but the court shouldn’t be able to go in there and question their decisions.”
“They filed a motion to quash the subpoena on the grounds that you cannot require the testimony of any board member,” Gronemeier said. “But the only people who know anything about this case on the district’s side are board members.”
Gronemeier said the district’s attorneys don’t want McDowell to testify, and he expects they’ll take that same position with the other board members.
“What they’re saying is [that] we cannot take any discovery because the only people that know anything about all the disputed events in the lawsuit are board members,” Gronemeier said. “They have blocked, temporarily at least, our ability to get any information essentially, and we’re heading to court resolution on that.”
“When you represent public entities, you will occasionally run into a situation where someone will try to depose a board member, and this is a common motion you file to prevent that from happening,” Church said.
When asked why McDowell was subpoenaed to testify, of the five board members, Gronemeier said, “It was a tactical decision that he was the best place to start.”
Gronemeier said he also had four motions to compel discovery that haven’t been filed yet, for July 15.
More motions and hearings are expected by both sides, in preparation for the full trial which has been set for Nov. 4.