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Cross-complaint against Harn and county dismissed in Dellinger civil case

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From page A3 | July 01, 2013 |

A cross-complaint in the civil case concerning how a political consultant used money in a measure affecting Pioneer Fire District has been dismissed.

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Dan Dellinger filed a cross-complaint — essentially a countersuit — against El Dorado County and county Auditor-Controller Joe Harn on Feb. 15, after a demurrer to dismiss charges against him and co-defendant Cris Alarcon was overruled, court documents stated. It basically states that Harn and the county are joint tortfeasors, meaning they share in the actions of negligence that resulted in the alleged wrongdoing and costs incurred, called equitable indemnity.

A demurrer was then filed by attorney Andrew Caulfield on behalf of Harn and the county. A tentative ruling on May 9 was given as accepting the demurrer, as Dellinger had, in Judge James R. Wagoner’s opinion, cited the correct case law for the cross-complaint but had not applied it correctly in the case. He was given 10 days to amend the cross-complaint or the demurrer to dismiss it would stand.

The same day, Dellinger requested oral arguments be heard on the matter, but on May 10, requested the hearing be vacated and withdrew his request.

“Dellinger,” Wagoner’s opinion on the tentative ruling from May 13 reads, “does not and cannot allege an appropriate basis for equitable indemnity and the demurrer is sustained.”

The cross-complaint also cites public policy, in that Harn and the county’s logic mirrors logic used in “Alice in Wonderland” by Tweedledee. “Contrariwise … if it was so, it might be; and if it were so, it would be; but it isn’t, it ain’t. That’s logic,” Lewis Carroll’s novel reads.

Wagoner wrote there were only two logical outcomes to the lawsuit: Dellinger is found to have obtained the money in question illegally, “therefore public policy prohibits indemnity to fund such illegal conduct,” or he obtained the money legally and there is “no need to indemnify. In either case, there is no duty or even ability for the County and Harn to indemnify Dellinger.” Thus, it is not equitable indemnity, as it only goes one way.

Also cited are the government code for immunity and declaratory relief. The demurrer by Caulfield would be granted as the declaratory relief cause of action and it was found Harn and the county fall under the immunity code.

Dellinger did not amend the cross-complaint in the 10 days given. On June 4, Wagoner, Caulfield and defense attorney Robert Laurie, signed the order to dismiss the cross-complaint per the demurrer. It was dismissed with prejudice, meaning Dellinger could not file a cross-complaint for the same reason again. All parties were to bear their own costs and fees.

Dan Dellinger Consultants was contracted by the Pioneer Fire Protection District in “qualifying and then providing information on” the measure, a press release from Dellinger stated. The measure passed last November with almost 80 percent of the vote. The press release noted that the DA alleged “that Dellinger violated statutory restrictions regarding the expenditure of public funds for advocating for a ballot measure as opposed to simply providing neutral information.”

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