In the last two years alone, the ongoing battle over whether harbor seals at La Jolla’s Children’s Pool should stay or go has cost all parties concerned well in excess of $2 million.
Rachel Laing, spokeswoman for the mayor’s office, said $1,435,329.39 has been collectively spent by the city of San Diego’s Engineering & Capital Projects, Legal, Police, and Park and Recreation departments. That figure includes the nearly $1 million paid to attorney Paul Kennerson, who for the last six years has been defending Valerie O’Sullivan in her lawsuit against the city of San Diego alleging that the presence of harbor seals there violates the terms of the trust deeding the pool over from the state of California to the city of San Diego.
“These figures do not reflect time spent by the city attorney’s office for work on the case, only settlement payouts and expenses such as reprographics,” Laing said.
How much the City Attorney’s office has spent is not clear, although current City Attorney Jan Goldsmith said, “You can expect other costs to the city of litigation all those years was about the same (as Kennerson’s fee).
“Then you add to that the cost of consultants for the environmental impact report that’s still going on, and staff time … and you’re talking about hundreds of thousands of dollars more,” he said.
Goldsmith has made staunching the “financial hemorrhaging” from the O’Sullivan case a priority of his administration, noting costs in the case continue to mount.
The battle will return to the courtroom on Oct. 6. That’s when Judge Yuri Hofmann will reconsider his order to disperse the seals. In late July he stayed the order so he could take time “to sort through and review the effects” of SB 428 that amends the Tidelands trust governing Children’s Pool to make seal habitation there a permissible use.
If Hofmann decides to follow through with his dispersal order, the city has estimated that its proposed plan could cost close to $700,000 over a year, not counting associated law enforcement costs
Adding upTo date, Kennerson has been paid a total of $977,812.72 by the city in two lump sums. Kennerson said that may sound like a lot in reimbursement, but really isn’t once you consider all the particulars.
“If I hadn’t been successful (in O’Sullivan suit) I wouldn’t have gotten a penny,” he said. “That’s for probably five or six years of work. There’s a provision in the law that holds that if a public entity won’t obey the law, you can sue them to force them to obey and collect attorney’s fees if you’re successful.”
Comparing sidesBy contrast, Kennerson’s legal adversary in the seal case, Bryan Pease, who has been battling to keep the seals at Children’s Pool and the rope barrier protecting them up, said his legal services have come gratis.
“I’m completely pro bono,” he said.
The legal fees for the nonprofit groups Pease represents, the Animal Protection & Rescue League and Friends of La Jolla Seals, have been comparatively meager, he said, adding that considering the nonprofit status of the groups, that’s a lot.
Unlike Kennerson, judicial laws did not allow Pease to collect attorney’s fees in compensation for his legal services.
“I didn’t have the opportunity to request fees from the city because both of my cases ended up ultimately being dismissed,” he said. “Ironically, both times I achieved the desired result: getting the rope up and stopping seals from being dispersed.”
Pease pointed to another essential difference in the relationship with the city between his and Kennerson’s services. “The city has spent hundreds of thousands of dollars on Kennerson’s lawsuit,” he said. “Our lawsuits have not cost the city a dime.”
Kennerson explainsKennerson’s hourly rate varies with the individual case, but starts at about $200 an hour. He said the O’Sullivan case has taken about a third of his total billable hours, translating into about $160,000 a year.
Kennerson added the law also provides that a “mandatory multiplier” be used in dispensing attorney fees.
“What happened with me (in O’Sullivan) is the court reduced my fees, then applied the lowest multiplier I’ve ever seen – 1.2 – to two installments,” he said.
Answering charges he took the seal case on only to collect attorney’s fees, Kennerson replied: “I have a very busy practice otherwise, and I am not in this for the money in any sense. I would have made more with other cases.”
Allowing for discretionThe city attorney says his position continues to be that Children’s Pool is a “state trust that the legislature has the power to change.”
Goldsmith added his office can’t stop private parties from filing future lawsuits over the pool, but said, “but you can give the City Council and the mayor discretion over exercising public policy. My goal is to try and get it out of the litigation arena, where it’s very expensive, and into an arena where it’s less costly, more responsive to the community, and maybe find some solution.”
If the Children’s Pool fight remains in the courts, it could be tied up in litigation for years, Goldsmith said, adding that reconfiguring the beach will take years and require Coastal Commission approval.
“You’re talking about millions and millions of dollars in the future,” said Goldsmith.
And neither he nor city officials are calculating what it would cost.
Pease offers detailsPease, who has campaigned for the animal rights league throughout the case,
detailed some of his costs.
“Each lawsuit we’ve had to pay a $350 filing fee and a $680 filing fee when we’ve had to appeal,” he said. “When we have to order transcripts of those lawsuit hearings, it could cost hundreds of dollars depending on their length. For each of our two lawsuits, that’s cost about $1,000, cheap for a lawsuit, but a lot for small organizations like the ones I represent.”
Kennerson said he’s offered, begged, the city on numerous occasions to settle the O’Sullivan suit but to no avail. It’s also his contention the city is not about to fully reveal all the costs it’s incurred in the ongoing legal battle.
“They’re not going to tell you half of (Deputy City Attorney) George Schaefers’ salary or a tenth of Goldsmith’s or Aguirre’s,” he said. “They won’t tell you – but don’t forget to figure that in.”
City’s costsEngineering & Capital Projects - $377,308.58
Legal - $1,054,292.75 ($977,812.72 of that was paid to attorney Paul Kennerson)
Police - $3,081.09
Park & Rec - $646.97
City attorney - No firm number available but ‘about the same as Kennerson’s fee’ and still rising
Paul Kennerson costs$160,000 a year over six years
Brian Pease costsNo firm number available
- Sources: Mayor’s office, city attorney’s office, Paul Kennerson, Brian Pease