Kapler Versus Alameda

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t!M-1 00

FOR COURT USE ONLY

(SOLO PARA usa DE LA CORTE)SUMMONS

(CITACION JUDICIAL)

NOTICE TO DEFENDANT:(A VISO AL DEMANDADO):

City Of Alameda, a chaliered City; "AdditionaJ Parties Att'lchment formis attached.

YOU ARE BEING SUED BY PLAINTIFF:

(LO ESTA DEMANDANDO EL DEMANDANTE):David Kapler

/I. v i

NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days.below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copyserved on the plaintiff. A letter or phone call wil not protect you. Your written response must bein proper legal form if you want the court to hear yourcase. There may be a court form that you can use for your response. You can find these court forms and more information at the California CourtsOnline Self-Help Center (WlV1v.courtinfo.ca.govlselfhelp), your county law libnary. or the courthouse nearest you. If you cannot pay the fiing fee. ask

the court clerk for a fee waiver form. If you do not file your response on time . you may lose the case by default, and your wages , money, and propertymay be taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attomeyreferral service. If you cannot afford an attomey, you may be eligible for free legal services from a nonprofi legal services program. You can locatethese nonprofit groups at the California Legal Services Web site (www.lawhelpcafifomla.org), the California Courts Online Self- Help Center(ww. courtinfo.ca.govlselfhelp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees andcosts on any settement or arbitnation award of $10 000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.

fA VISO! Lo han demandado. Si no responde dentro de 30 dias !a corte puede decidir en su contra sin escuchar su version. Lea la informacion

continuaci6n.Tiene 30 OiAS DE CALENDARIO despues de que Ie entreguen esta citaci6n y papeles lega/ s parapresentar una respuesta pOl' eserito en esta

corte y haeer que se entregue una copia al demandante. Una carta una lIamada telef6nica no 10 protegen. Su respuesta par escrito liene que eslaren fonnato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.

Puede eneontrar estos fonnularios de la corte y mas informacion en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov). en

biblioteca de leyes de su condado en la corte que Ie que de mas cerea. Si no puede pagar la cuota de presentacion, pida al secretario de la corteque Ie de un formulario de exenei6n de pago de cuotas. SI no presents su respuesta tlempo, puede perder el casa pOl' incump/imiento y la orte

podro quitar su sueldo. dlnero y bienes sin mas advertencia.Hay atros requisitas legales. Es recomendable que lIame un ab ogado inmediatamente. Si no conoce un abogado, puede llamaI' un servicio de

remision abogados. Si no puede pagar un abogada, es posible que cumpla con los requisitos pera obtener servicios legales gratuitos de un

programa de servicios legales sin fines de lucro. Puede encontrr estos gl1pos sin fines de lucra en elsilio web de California Legal Services,

(ww.lawhelpcalifornia.org), eneICentradeAyudadelasCortesdeCalifornia (wwv...suGorte.ca.gov) poniendose en contacto con la corte0 elcolegio de abagados locales. VISO: Por ley, la corte tiene derecho reclarnar las cuotas y 105 costos exenlos par impolJer un gravamen sabre

cua/quier reeuperacion de $10 000 mas de valor recibida mediante un acuerdo una concesion de arbitraje en un caso de derecho civil. Tiene que

pagar el gravamen de la corte antes de que la corte pueda desechar el caso.

The name and address of the court is:(EI nombre y direcci6n de la corte es): Hayward HaJJ of Justice

24405 Amador Street, Hayward , CA 94544

CASE NUMBER.

B1il1 / 0 9 3 3

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:(EI nombre, la direcci6n el numero de telMono del abogado del demandante del demandante que no tiene abogado . es):

Denise Eaton May, Esq. 15250 Hesperian Blvd. , Suite 200 , San Leandro, CA 94578 510-888- 1345

DATE: APR 1 4: 2D\1\T SWEETEN Ierk, by DEB A F JRTADO(Fecha) (,,UTIVE OfRCERlClE' ecretariO)

(For proof of service of this summons, use Proof of Service of Summons (fonn POS-01O).)

(Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons (POS-010)).

NOTICE TO THE PERSON SERVED: You are served

1. as an individual defendant.2. as the persoll sued under the fictitious name of (specify)'

, Deputy

(Adjunto)

(SEAL)

3. on behalf of (specify):

under: CCP 416. 10 (corporation)

CCP 416.20 (defunct corporation)

CCP 416.40 (association or partership)

other (specify):4. by personal delivery on (date):

CCP 416.60 (minor)

CCP 416.70 (conservatee)

CCP 416. 90 (authorized person)

Form Adopted for Mandatory Use

Judicial Council of Califomi"SUM.100 (Rev. July 1 2009)

SUMMONS

Pogo 1 Qf1

Code of Civil ProcedUJe 9 d1Z. , 455w'.vw.COurtir1fo. a.gov



SUM-200(A)

SHORT TITLE

Dave KapJer v. City of Alameda , Lena Tam , et ai , Does 1-

INSTRUCTIONS FOR USE

-t This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons.

.. If this attachment is used , insert the following statement in the plaintjff or defendant box on the summons: " Additional PartiesAttachment form is attached.

List additional parties (Check only one box. Use separate page for each type of part.):

Plaintiff Defendant D Cross-Complainant D Cross-Defendant

CITY OF ALAMEDA, a chartered City; LENA TAM , a member of the COUNCIL OF THE CITY OF

ALAMEDA, individually and as a public officer; DEBRA KURITA individuaJly and in her official capacity;

ANN MARIE GALLANT, individual1y and in her offcial capacity,

DOES 1 50

Defendants.

Page

Page 1 of 1

Form Adopted for Mandatory Use

Judicial Council of Califoria

SUM.200(A) fRev. January " 2D07j

ADDITIONAL PARTIES ATTACHMENT

Attchment to Summons



CITY AND ZJPCOE Hayward , 94544BRANCH NAE' Ha ard Hall of Justice

CASE NAME:

David Kapler v. City of Alaeda Lena Tam, et al, Does 1-

. CIVIL CASE COVER SHEET Complex Case Designation--DNU

I;;I'r

Unlimited Limited! \1 \! (1

(Amount (Arnount Counter Joinderdemanded demanded is Filed wih firs appearance by defendant

JUDGE:

exceds $25 000) $25 000 or less) (CaL Rules of Court, rule 3.402) DEPT

Items 1-t below must be comptted (se inslctons on page 2).

1. Che one box below for th cae type tht bet debe this cae:Auto Tort Contract

Auo (22) Brech of amtractwarTant (06)

Uninsured motorist (46) Rule 3.740 collectons (09)

Other PlIPDIW (Personallnjury/Propert Oter collections (09)

Damagerongfl De)Tort D Insance covege (18)

Asos

(04)Oter contnct (37)

Prud f!3fity

(24)Real Propert

Medical malpractice (45) Eminent dDmainllnvers

Oter PUPDfW (23) condemnation (14)

NonllDlWfOtTort D Wrongful evicton (33)

Business torUunfair business practice (07)Other real propert (26)

Cil rihts (08) Unlal Detainer

Defamation (13) Commercial (31)

Fraud (16) Residential (32)

Intellectual propert (19) Drgs (38)

Profeional negligence (25) Judicial Reew

Otr non-PIIPDNV turt (35) Ast fo (05)Employment D Petion re: arbtntion award (11)

Wrongl terminatioo(36) D Wrt of mandate (02)

Oter emloent(15) D Ottr jud03! re (39)

2. This case is is not cornplex under rule 3.400 of the California Rules of Court. If the case is cornplex, rnari thefactors reuiring exceptional judicial rnanagement

a. Large numbr of separately repreented partb. Extensive rnotion practice raising diffcult or novel

ises that will be tinsming to resolve

c. Substantial amount of documentary evidence

ATTORNEY OR PARTY WlTHQU A 1),.Iii; (N""b SteBa numbr, and dress):

Dense Eaton May. Hsq. BN 116700)Attorney at Law15250 Hespert Blvd. , Suite 200San Leadro, CA 94578

TELEPHONE NO 510-888- 1345ATTORNEY FOR (Name): David Ka ler

SUPERIOR COURT OF CALIFORNIA , COUNT OF AlamedaSTREET ADESS 24405 Amador Street

FAX NO. 510-315-3015

MALING ADDRESS:

CM-10'm FO CO USE ONY

0CfE

FiLE))

1 4e 20'1

Provisionally Complex Civil Litigation(CaL Rule of Court rule 3.43.4)

Anti5trade regulation (03)

Constructon defect (10)

Mass tort (40)

Secues lrogation (28)

Envromentlff oxic tort (30)

Insunance coverage daims arising from theabo lisled provisionally complex case

tys (41)

Enforcment of Judgment

Enfocement of judgment (20)

Misllaneous Civil Complaint

RICO (27)

Otr complaint (not spcied above) (42)

Miscellaneous Civ! Petion

Partnership and corponate governance (21)

Otr petition (not sped above) (43)

d. Large nurnber of witnese. Coordination wih related actions pending in one or more courts

in otr counties, stes, or countr , or in a federal court

f. Substntial postjudgment judicial supervision

b. GJ nonmonetary; declaratory or injunctive relief c. GJ punitive. Remedies sought (check all that apply): L2 monetary

4. Number of causes of acton (speci):

5. This ca D is GJ is not a cl acton suit

6. If thene are any known related cases , file and serve a notice of nelated case. (You may use form CM-015.)

Date: April 8, 2011Denise Eaton May, Esq.

(TYPE OR PRINT NAME)

NOTICE. Plaintiff must file this cover sheet wi the firs paper filed in the acton or

proing(except smll claims

caor cases filed

under the Probate Code , Family Code, orWelfane ancllnstiutons Code). (Cal. Rules of Court rule 3220. ) Failure to fie may result

in sandions. File this cover sheet in addition to any cover sheet reuired by local court rule.

. If thisca is coplx under rule 3.400 et se. of th Califoria Rule of Court you must serv a copy of this cover sheet on all

other partes to the acton or proceding.. Unless this is a collections case under rule 3.740 or a complex case, this cover sheet win be used for statistical purposes onlv

,sage 1 of 2

Fon forMaUs CML CASE COVER SHEET CaL Ru,, of Co rues 2. 3220. 3 4034C3 . 3740Judicil Condl of Calimi. Cal Stara of Jud,,,1 Adm , st. 3.

CM-10 fRev- July 1 20071 ,qJlmunmfon. gtv

t5d -1:7)4-/.1'(SIGNATURE a= PARTY OR ATTORNEY FOR PAB)



CM-010INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET

To Plainti and Oters Filng Firs Papers. If you are filing a firs paper (for example, a complaint) in a civil case , you mustcomplete and file, alon wit your first paper, th Cil Case Cover Sheet containe on page 1. This infonmtin will be used to compile

statistics about the types and numbers of cases filed. You must cornplete itms 1 through 6 on the sheet. In item 1 , you rnust checkone box for the case ty that bet decrbe th case. If the case fi both a generl and a more spec ty of case listed in item 1

ch the more spcific one. If the case ha mulle caus of acton chec th bo tht bet indicate the priry cause of acton.To ast you in comping th sht, exaple of th case that belog und eac ca type in item 1 are prvide below. A cover

sheet must be filed only with your initial paper. Failure to file a cover sheet wi the first paper filed in a civil case may subject a part,its counsel , or both to sanctons under rules 2.30 and 3.220 of the Califrnia Rule of Court.

To Part in Rule 3.740 Collection Case. A "colfeons case" under rule 3.740 is defined as an acton for recovery of rnoney

ow in a sum stte to be certin tht is not mor than $25 00. excliv of intere and attrny's fe , ariing frm a trnsactn inwhich property, selVices, or rnoney was acquired on credilA collectons case doe not include an action seeking the following: (1) tortdamages, (2) punitve damaes, (3) recovery of rel prort, (4) revery of persnal propert, or (5) a prejudgment wrt of

attachment The identcation of a case as a rule 3.740 collections case on this form means that it win be exempt frrn the generaltime-for-service requirements and case managemen rules , unles a defendant file a responsive pleading. A rule 3.740 collections

case wil be subject to the requireents for service and obtaining a judgment in rule 740.

To Partes in Complex Cases. In complex case only, partes must also use the eM! Case Cover Sheet to desgnate whether the

case is complex. If a plaintiff beieve the ca is coplx under rule 30400 of th California Rule of Court this must be indicated by

cornpleting the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex , the cover sheet rnust be selVed with the

complaint on all partes to the acton. A defendant may file and serve no later than the time of it first appearance a joinder in the

plaints designation , a counter-desgnation that the case is not rop!x, or, if th plaintff has mae no designation , a desgnation thatthe ca is complex. CASE TYES AND EXMPLESAuto Tort Contrct

Aut (22f-ersna! InjurylProp Breach of Contractarrant (06)

DamageJngflDeath Bream of Rentaillease

Uninur Moort (46) (ifheCotrct (not unta detaner

case invOlves an uninsuredOr wrongful eVictIOn)

motorisl daim subjef toCon1actTTnty Breller

arbitrti chthis

itmPlain (not frud Dr negligence)

instea of

Au)Neligent Bracn of Contact

Other PlfPDIW (Personallnjuryf Warranty

Propert Damage!ngflDeath) Otr Breach of CotrctrrntyTort Col!eons (e.g.. mony owed. open

Asbestos (04) book accunts) (09)

Asbetos PropertyDamage Collen Caseli PlatiAsestos Personallnjuryl Other PromIssory Note/CollectonsIIngl Deth Case

Prouct liabilit (not asbs orInsunce Covge (not provisionally

toxic/envirometal) (24)coplex) (18) .

Medical Malpractice (45) Auto Subrogation

MedicalMalpractce Otr Coverage

PhysGians & Surgeons Oter Contrct (37)

Other Profeional Helth Care Contractl FraudMalpractce OterContct Dispute

Otr PIIDIW (23) Rel Propert

Pris liabilit (e.g., siip Emt DomainInversand faU) Condemnaton (14)

!nteonal Bodily

!njulPDIW Wr Ev;ctoo (33)(e. , assault, vandalism) Oter Real Propert (e.g., quiet tie) (26)Intentiooai iniicton of Wr of Posson of Reai Propert

EmotinalDitr Mortage ForeosureNegligent IntJctkm of QUit Tit

Emotional Distress Other Real Propert (not eminentOtr PIIPDIW domain, landlorenant

Non-POI (Oter) Tort foreclosre)

Bwne Torair Busines Unlal Detainer

Practce (07) CommerGial (31)

Civil Rights (e.g., dismination Resential (32)false arr) (no dvii Drgs (38) (if the ca invoves illeal

harassnt) (08) drugs, check this item; otherwse,Defamti (e. , slr, tihe)

mprt as Commeal or Resal)(13) Judicil ReviewFraud (16) Ast Forture (05)

Inteleual Prope(19) Petion Re: Artin Award (11)

Profnal Neen (25) v. of Mande (02)legal Malpnactice Writ-Administrtive Mandamus

Othr Professional Malpnactce WIt-andamus on Limit Court(not mooical or legal) Case Malter

Other Non-PIIPDIW Tort (35) Wri!-Oher Limite Court Case

EmplvJ...eht ReviewWrongfl Termination (36) Ot Juical Revi (39)Otr Employment (15) Revi of Helt Ofr Orr

Notice of Appeal-aborCommision Apals

CM-OlO fRev. July 1 . 2007) CIVIL CASE COVER SHEET

Provisionally Complex Civil Litgaton (CaLRule of Cort Rule 3.40.403)

Antrade Regutation (03)Cons Defect (10)Claims Involving Mass Tort (40)Secu Ligation (28)

Envronmematr oxc Tort (30)Illsuce Cover

(arising frm provisionally complexcase typ listed above) (41)

Enforcnt of JudgmtEnforcment of Judgment (20)

Abs of Jugmet (Out ofCounty)

Confeion of Judgment (non-

doesc reations)Sisr State Judgment

Administrative Agency Award(not unpaid taxes)

Petition/Cecation of Entr ofJudgment on Unpaid Taxes

Oter Enment of JudgmntCase

Miscellaeous Civl Complaint

RICO (27)

Otr Coain (not speciedabove) (42)Declaratory Relief OnlyInjunct Relief Only (non-

harassment)Mectnics lin

Oter Commercil Complaint

Case (non-toon-complex)Other Civl Complaint

(nonctoorlex)Miscellaneous Civil Petion

Parthi and Corporate

Governnce (21)Oter Petiton (not

above) (43)Civil HarassentWorlace ViolnceEldrlDpendnt Adult

AbeElection Contest

Petion for Name ChangePetion for Relief From late

Claim

Other Civl Petition

Pogo 2of2



DENISE EATON- lVlr\Y, Esq. , State Bar No. 116780Law Offices of Denise Eaton Mal'15250 Hespel'ian Blvd. Suite 200San Leandro , CA 94578

Telephone: (510) 888- 1345Facsimile: (510) 315- 3015 i J.

2. t.\ '/ 1).(,:.Ji

Attorney for Claimant, David Kapler

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAJvIEDA

Case No.j! iG 11 5 '1 0 3 3

COMPLAINT FOR DA.l\1..\GES:

DA V1D Ki-\PLER,

Breach of Contract , Express and Implied;

Intentional Interference with Economic

Relationship; Breach of Covenant of Good

Faith and Fair Dealing; WrongfulTermination in Violation of Public Policy;Constructive Discharge; Defamation;Violation of Government Code Section

3250 , et seq (Firefighter s Bil of Rights);

Intentional Infliction of EmotionalDistress; andNegligent Infliction of Emotional Distress

Plaintiff

CITY OF ALAIVIEDA a charteredCity; LENA TAM , a lember of theCOUNCIL OF THE CITY OFALl\lvlEDA. individuallv and as

public offic r; DEBRA I(URITAindividuallv and in her officialcapacity; ANN lVLA.RIE GALLANTindividually and in her offcialcapacity,

DOES 1 - 50.

Defendants.DElVLA.ND FOR JURY TRlb-L

kJ.JPlaintiff DAVID KAPLER ("E.APLER" or "plaintiff' ), allege:

PRELIMINARY ALLEGATIONS

1. Defendant CITY OF ALAIEDA ("CITY" or "defendant ) is and at all times

herein mentioned is a city government , formed as a " Charter City" in the State of

California, County of Alameda.

Kapler.: Complaint For Damages



2. Defendant CITY was the employer of KAPLER for all times mentlOn in this

complaint until his constructive and wrongful termination from employment

with the CITY on 01 about November 5 2010.

3. The COUNCIL OF THE CITY OF ALA1'\1EDA ("COUNCIL" ), is and at all times

mentioned in this complaint was , the governing and decision making body of the

CITY \vith the power to make all decisions relevant to this complaint.

4. Defendant LENA TAJ\JI ("TAJVI"), is , and at all times mentioned in this complaint

was a member of the COUNCIL of the CITY. As a Council Member TAM

performed her duties as an individual and as an agent for the CITY.

5. Defendant DEBRA KURITA ("KURITA"), is , and at all times mentioned in this

complaint , the former City Manager for the CITY. As City Manager KURITA

performed her duties as an individual and as an employee and agent ofthe CITY.

6. Defendant ANN l'Li\RIE GALhi\NT ("GALLANT"), is , and at all times mentioned

in this complaint was Interim City Manager for the CITY. As Interim City

Manager for the CITY. GALLi\NT performed her duties as an individual and as

an employee and agent of the CITY.

7. KAPLER was at all times mentioned in this complaint , a resident of the City of

Alameda, County of Alameda . California.

8. Unless otherwise alleged in this complaint , Ki\.PLER is informed and believes

and on the basis of that information and belief alleges , that at all times

mentioned m this complaint, defendants were the agents and employees of their

codefendants , and in doing the things alleged in this complaint, were acting

within the course and scope of that agency and employment.

Kapler Complaint For Damages





business related to his duties. In exchange , KURITA agreed that Plaintiff could

fuel KA.PLER's personal vehicle with gasoline from CITY o'\vned fire stations.

Hi. KURITA did not specifically define any limits on the use of gasoline , verbally or

in writing with Plaintiff The use of gasoline was not restricted to one particular

personal vehicle; but , instead, applied to any personal vehicle Plaintiff used on

CITY business.

17. A term of the agreement between Plaintiff, KURITA, and the CITY Vi'S that

Plaintiff would accrue post retirement medical benefits upon the completion of

three years , or effective October 1 , 2010, if he remained employed through that

date.

18. From the commencement of Plaintiffs employment, his performance was

exemplary. Plaintiff performed the duties of his position according to the terms

of his agreement with the CITY, and according to the rules, policies and

procedures enacted by the CITY.

H3. Plaintiffs duties, as Fire Chief included but were not limited to the oversight of

the Fire Department budget. Additionally, the Fire Chief participated in

negotiations with the bargaining units employed with the City Fire Department.

Specifically, pursuant to the "Meyers-Milias Brown Act" ("MMBA"), Government

Code section 3500 , et seq. , the Plaintiff participated in bargaining with IAFF

Local No. 689.

20. In 2008 and continuing into 2009 , the CITY began to expenence considerable

budget problems. As a result , Plaintiff was required to make budgetary cuts that

were not popular with the CITY'S firefighter union , IAFF Local No. 689.

Consequently, various individuals , whose identity is not presently known to the

Plaintiff, began to take retaliatory action against the Plaintiff.

Kapler Complaint Far Damages



21. Defendants CITY , TAM, and GALLANT were aware of the conspiratorial and

retaliatory actions against. KA.LER by members of the firefight.er union and

others prior to August 2010.

22. Plaintiff is informed and believes and based on that information alleges that

defendant. LENA TAM ("Tam ), conspired with members ofthe firefighter s union

to wrongfully remove Plaintiff. In addition , TAM: attempted to coerce GALLJ\NT

and others to terminate Plaintiff without good cause in interference with the

agreement between CITY and Plaintiff, as well as in violation of the CITY'S

Charter and personnel policies.

23. Plaintiff is informed and believes that his termination from the position of Fire

Chief was politically motivated and conspired by the unlawful collusion between

TAM and IAFF local 669 members , and was in retaliation for his refusal to

succumb to TAM and the IAFF unlm.vful demands to disregard his

responsibilities and duties as Fire Chief to make decisions concerning the dire

financial straits of the CITY

24. Plaintiff is informed and believes that TA.lVI regularly communicated confidential

information Plaintiff and others discussed in closed session regardingproposed

budget cuts to impacting IAFF 689 member , in violation of Brown Act which

motivated the union to pressure the council to find a reason to get rid of Plaintiff

at any cost.

25. Plaintiff is informed and believe that CITY's purported reason for terminating

his employment, including the subsequent biased inadequate investigation is

pretext , and that the decision to terminate his employment was guided by TAM

and the COUNCIL' s ilegal eollusion with IAFF and political interference vvith

personnel matters in order to further their re-election. Plaintiff is informed and

believe that Li\FF contributed to T.t\lvl's campaign and TAM in return blew the

Kapler. Complaint For Damages



'7 ..

lssue of gas out of proportion so thatit could be used as a basis to get rid of

plaintiff and pushed the COUNCIL via threats and intimidation to terminate

Plaintiff.

26. On or about August 18 , 2010 , several n6\'\' s articles , generally circulated in the

City of Alameda, the San Francisco Bay Area, state wide and nationally, were

printed about the Plaintiff. Serious false and defamatory allegations were

published that the Plaintiff used CITY gasoline in his personal vehicle without

Defendants ' permission or authorization.

27. On or about August 18 , 2010 , Plaintiffs photograph was printed in newspapers

of general circulation, without the Plaintiffs permission. The photographs were

taken and/or obtained by and published by employees , agents, offcials, or

assigns of defendant CITY.

28. On or about August 18, 2010, the general public was made aware of the

photograph and allegations putting the Plaintiff in a false light to his community

and peers in his profession.

29. On or about August 18 , 2010 , and thereafter , CITY officials , employees , agentsand assigns, failed to notify the public that Plaintiff used the gasoline and filled

his personal vehicle by agreement of CITY officials , KURITA and

30. On or about mid-September 2010 , CITY, its officials, employees, agents and

assigns conducted or caused to be conductecl an investigation of the allegations

improper by Plaintiff of CITY owned gasoline. The investigation was biased in

its conduct and result. Although the investigation found that there was an

agreement between KURITA and Plaintiff authorizing the use of CITY gas for

Plaintiffs peTsonal vehicle; nevertheless, the CITY, its offcials, employees,

agents and assigns decided to terminate Plaintiff for this purported reaS011.




28 i

31. On September 17 , 2010 , GALLANT , who was aware of the terms and conditions

of Plaintiffs employment agreement, notified Plaintiff that the CITY had

determined it would terminate Plaintiffs employment effective September 24

2010, one week before his insurance benefit vested pursuant to the agreement

hire. The CITY did not terminate the Plaintiff on September 17 , 2010; but. CITY

did not withdl'avv its letter of intent to terminate the Plaintiff effective

September 24 , 2010. The CITY c.ontinued its efforts to terminate the Plaintiff

and subsequently decided to terminate Plaintiff at its October 31 , 2010 Board

meeting, contrary to the recommendation of staff.

32. On November 5, 2010 , plaintiff was forced to submit a letter of resignation in

lieu of termination. Defendants had determined it would terminate the claimant

at the time he submitted the letter of resignation. The letter of resignation was

an attempt to preserve the Plaintiffs over 40 year exemplary employment record.

The Plaintiff did not have any choice in the separation from employment.

33. At the time of the termination the Plaintiffs annual salary was greater than

$195 000. 00.

34. Plaintiff ha.8 at all times duly performed all the conditions of the employment I

agreement between he and the CITY until prevented from doing so by

Defendants. At all times relevant to this complaint, Plaintiff has been ready,

willing and able to perform his job. Additionally, the Plaintiff has not violated

any terms of employment contained in CITY policies, procedures and practices.

35. Pursuant to Government Code section 900 , et seq. , on January 7 , 2011, the i

Plaintiff filed a Government Tort Claim 'with the appropriate authority for the

CITY. On February 17, 2011, the City rejected the timely filed claim Thus , tlllS

action is timely filed and is in compliance with Government Code section 945.

Kapler Complaint For" Damages



7'"

36. As a Fire Chief employed by a California public entity, Plaintiff is entitled to the

protections of the "Firefighter s Bil of Rights , California Government Code

section 3500 , et seq.

FIRST CAUSE OF ACTION - BREACH OF CONTRACT

(Against Defendant CITY , KURITA, and GALLANT)

37. Plaintiff incorporates into this cause of action by reference Paragraphs 1 through

34 herein as though each were fully set forth in this cause of action.

38. Plaintiff was employed with defendant CITY by a contract of hire entered intobet\veen he and the CITY , through its employee and agent KURITA. The terms

of the contract relied on by Plaintiff include but are not limited to:

A. Written personnel policies , enacted and implemented by the CITY

including but not limited to provisions of the CITY Civil Service

Ordinance , the CITY Charter , provisions ofthe applicable Memoranda of

Understanding, compensation planes) covering the position of Fire Chief

and applicable to Plaintiff which provide that employees shall be

disciplined for cause:

B. The terms of the written offer of employment to Plaintiff by the CITY

through its agent KURITA, which terms include , explicitly or implicitly, a

promise not to terminate the claimant as long as he performs under the

terms, conditions and requirements of this position.

C, Specifically, KURITA offered the claimant a position as Fire Chief, with a




rate of pay at Step 5 of the then ClUTent salary scale. Additionally,

KURITA agreed that as part of the Plaintiff's compensation, and in lieu of

car allowance as described in the "City of Alameda Executive

Management Compensation Plan , that Plaintiff could fill his vehicle,

used on CITY business, ,,\rith gasoline from a CITY owned fuel station

during the term of his employment.

D. Additionally, KURITA offered the claimant post retirement Health and

Welfare benefits pursuant to the Memorandum of Understanding between

the City of Alameda and Alameda Fire :Management Association. Such

benefit included lifetime , post retirement medical benefits 3S long as the

claimant remained employed with the CITY for at least three years , or to

October I , 2010.

39. Defendant CITY bTcached its contract with plaintiff by:

A. Failing to treat plaintiff in accordance \vith defendant s stated policies;

B. Initiating an action to terminate plaintiff in breach of the implied and

explicit promises made to him;

C. Initiating an action to terminate plaintiff in breach of its policies and

practices;

D. Initiating an action to terminate plaintiff despite the agreements between

plaintiff and KURITA; and

E. Refusing to provide the plaintiff the specific benefit of his negotiation with

KURITA and CITY. post retirement health and welfare benefits , despite

the fact plaintiff was employed the requisite three years.




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40. Defendant employer has refused and continues to refuse to allow plaintiff the

benefits of his employment contract or to perform under the contract in the

agreed upon manner.

41. As a direct , foreseeable , and proximate result of defendant employer s breach,

plaintiff has suffered and continues to suffer substantial losses in earnings , and

job benefits , the precise amount of which wil be proven at trial.

42. As a further direct and proximate result of defendants' unlawful conduct

plaintiff has suffered extreme and severe anguish, humiliation, emotional

distress , nervousness , tension, anxiety, and depression, the extent of which is not

fully known at this time , and the amount of damages caused by defendantsconduct is not yet fully ascertained but in an amount the precise amount to be

proven at the time of trial.

SECOND CAUSE OF ACTION - INTENTIONAL INTERFERENCE WITH

ECONOMIC RELATIONSHIP

(Against defendants COUNCIL , KURITA, TAM in her official and individual

capacities)

43. Plaintiffs incorporate into this cause of action by reference Paragraphs 1 through


44. Defendants KURITA and T bJ1 knew of the contractual express or implied

relationship between plaintiff and CITY. KURITA negotiated and entered into

the contractual relationship with Plaintiff on behalf of the CITY. TAM was

aware of the relationship as a COUNCIL member and based on her knowledge of

the 'working relationships of the CITY and KAPLER.

45. In or about early 2010, TM1 began attempts to interfere with the economic

relationship between plaintiff and CITY when she attempt.ed to direct others to




terminate I\.. PLER' s employment without sufficient cause or justification, and in

violation of his contract of hire with the CITY, said contract entered into with

KURITA.

46. In or about September 2010, GALL.4.NT cooperated \:"ith TAuvI in the interference

with KAPLER'S contractual relationship \vith the CITY when , with full

knowledge of that relationship, each assisted TAJ1 in her efforts by assisting

with Ki PLER)S wrongful termination described herein above.

47. As a result of defendants' unlawful conduct plaintiff has suffered general

damages in an amount in excess of $2 000 000.

48. As a further proximate result of defendants' unlawful conduct , plaintiff suffered

the following special damages: a loss of salary and attendant benefits; a loss of

title and attendant benefits in the plaintiffs profession; all to plaintiffs injury in

an amount in excess of $2 000 000.

49. Defendants' conduct arose from il-\vil toward plaintiff and a desire to oppress

plaintiff and with the wrongful intention of injuring plaintiff. The conduct was

taken with an improper and evil motive amounting to malice and in conscious

disregard of plaintiffs rights and abilities. Because the actions taken toward

plaint.iffwere carried out in a cold, deliberate, callous and intentional manner in

order to injure and damage plaintiff, plaintiff is entitled to recover punitive

damages from defendants in an amount according to proof and in and amount

appropriate to punish and make an example of defendant.

THIRD CAUSE OF ACTION - BREACH OF COVENANT OF GOOD FAITH

AND FA1R DEALING

(Against defendant CITY, and defendants, TAM, KURITA, GALLANT , in both

their individual and official capacities)





47 herein as though eacb were fully set forth in this cause of action.

5 L As a result of the employment relationship which existed between plaintiff andCITY, the expressed and implied promises made in connection with that

relationship, and the acts , conduct , and communications resulting in these

implied promises , defendant employer , CITY, promised to act in good faith

toward and deal fairly "'lith plaintiff which requires , among other things , that:

A Each party in the relationship must act with good faith toward the other

concerning all matters related to the employment;

B. Each party in the relationship must act with fairness toward the other

concerning all matters related to the employment;

C. Neither party would take any action to unfairly prevent the other from

obtaining the benefits of the employment relationship:

D. Defendant employer would similarly treat employees who are similarly

situated;

E. Defendant employer would comply with its own representations , rules

policies , and procedures in dealing with plaintiff;

F. Defendant employer would not terminate plaintiff without a fair and

honest cause , regulated by good faith on defendant employer s part;

G. Defendant employer would not terminate plaintiff in an unfair manner;

and

H. Defendant employer vi'uld give plaintiffs interests as much

consideration as it gave its own interests.




52. Defendant employer s notice of termination, and subsequent , constructive

termination of plaintiff was wrongful, in bad faith, and unfair , and therefore a

violation of defendant employer s legal duties. Plaintiff alleges that defendant

employer breached the covenant of good faith and fair dealing when it:

A. Refused to abide by its own policies when dealing with plaintiff;

B. Denied the existence of the contract between KURITA and plaintiff, and

between CITY and plaintiff;

Unfairly prevented the plaintiff from obtaining the benefits of his

employment relationship;

D. Terminated plaintiffs employment for false reasons and in a manner that

was inconsistent with defendant employer s stated policies and practices.

53. Defendant employer s breach of the covenant of good faith and fair dealing was a

substantial factor in causing damage and injury to plaintiff. As a direct and

proximate result of defendant employer s unlawful conduct alleged in this

complaint, plaintiff has lost substantial employment benefits with defendant

employer , including the damage to his reputation , lost wages , and other

employee fringe benefits in the amount in excess of $2 000 000 , the precise

amount of \v hich will be proven at trial.

54. As a further direct and proximate result of defendant employer s \-vrongful

conduct, plaintiff has suffered extreme anguish, humiliation, emotional distress

the extent of which is not fully known at this time , but the amount of damages,

the precise amount of which \vil be proven at trial.

FOURTH CAUSE OF AC'I'ION - WRONGFUL TERMINATION IN VIOLATION

OF PUBLIC POLICY




(Against Defendants - CITY, and against defendants TAM, KURITA,

GALLANT, in hoth their individual and official capacities)

Plaintiffs incorporate into this cm.lse of action by reference Paragraphs 1 through5.

. 52 herein as though each were fully set forth in this cause of action.

56. At a11 times mentioned , Plaintiff was an employee of the CITY performing his

duties in an exemplary manner. Plaintiff was fully qualified for the position of

CITY Fire Chief.

57. CITY terminated Plaintiff in violation of its agreement with the Plaintiff

implicit and direct. Additionally, CITY terminated the claimant in violation of

public policy, contained in the lVlVBA.

1'1. .J 58. The reasons proffered by DEFENDA.NT employer, CITY, for terminating the

Plaintiff were pretext because the CITY and the PlaintifI agreed to the terms of

the Plaintiff s use of gasoline at the time it entered into the contract of hire.

59. Plaintiff is informed and believes and based upon that information and belief

alleges that DEFENDANTS terminated the Plaintiff because of Plaintiffs

performance of his duties in facilitating negotiations with the CITY Firefighter

union and in violation of the public policy implicit and/or direct in the MMBA.

Plaintiff also believes the CITY , TAM and others conspired to terminate the

Plaintiff with the intent to harm his interest in the benefits that would accrue on

his third year anniversary, October 1 , 2010 , pursuant to the agreement of hire.

60. The constructive and wrongful termination of plaintiff was in violation of public

policy delineated by reference in the Meyers-Milias Brown Act , at Government

Code section 3500 , et seq. Plamtiff alleges that his termination was wrongful

because it was the result of retaliatioll for the exemplary performance of his duty

to the CITY in labor negotiations with the firefighters ' union IAF local G89.




61. Plaintiff further alleges that as a direct , foreseeable , and proximate result of

defendant employer s wrongful termination of plaintiff in violation of the public

policy of the State of California, plaintiff has lost and will continue to lose income

and benefits. and has suffered and continues to suffer humiliationembarrassment, mental and emotional distress , and discomfort all to plaintiffs

damage in an amount in excess of $2 000 000 , the precise amount of which wil

be proven at trial.

62. Because the acts taken toward plaintiff were carried out by managerial

employees acting in a deliberate , cold, callous , malicious , oppressive , fraudulent

and intentional manner in order to injure and damage plaintiff, plaintiff requests

the assessment of punitive damages against individual defendants in an amount

appropriate to punish and make an example of defendants.

63. As a direct , foreseeable , and proximate result of DEFENDANTS' wrongful acts

Plaintiff has suffered and continues to suffer substantial losses in earnings , job

benefits , and reputation , and has suffered and continues to suffer humiliation

embarrassment, mental and emotional distress , and discomfort , all to plaintiffs

damage in an amount inexcess of $2 000 000 , the precise amount of which will

be proven at trial.

FIFTH CAUSE OF ACTION - CONSTRUCTIVE DISCHARGE

(Against Defendant CITY, and individual defendants TAM, KURITA, and

GALLANT, in both their individual and official capacities)






24.

65. At all times mentioned herein the CITY agreed , implicitly or directly, that the

Plaintiff would remain employed as long as he satisfactorily perrormed his

services to the CITY.

66. Plaintiff is informed and believes and based on that imormation alleges that

beginning before August 18 , 2010 , and thereafter , the DEFENDANTS , its

employees , agents, 01' assigns, conspired to create facts to justify the premature

termination of Plaintiff Toward that end the DEFENDANTS acquiesced to the

publication or false information about the Plaintiff, and the terms and conditions

of his employment, in public forums and news reports of general circulation.

Thereafter, the DEFENDANTS relied on the raIse inrormation to terminate

Plaintiffs services. On September 17 , 2010 , DEFEND !\TS notified the Plaintiff

of its intent to \vrongfully terminate the Plaintiff from employment.

67. The wrongful actions of CITY and DEFENDANTS either intentionally created or

knowingly permitted intolerable and unusually aggravating working conditions

for Plaintiff

68. Plaintiff notified CITY and DEFENDANTS of the intolerable working conditions

created by ruin Plaintiffs CITY andhe conspiracy to reputation.

DEFENDANTS insisted on continuing with the wrongful acts , including but not

limited to, the defamatory publications and refusal to abide by the agreement(s)

of hire , and its own policies and practices. Thus , Plaintiff was compelled to

resign in light of the CITY and DEFENDANTS treatment of Plaintiff

69. As a result of the wrongful acts of DEFENDANTS , Plaintiff was wrongfully

forced to submit his resignation on November 5 , 2010 in an attempt to mitigate

the damage to his reputation after over 40 years of employment.

SIXTH CAUSE OF ACTION - INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS




(Against individual defendants TAM, KURITA, GALLANT, in both their

individual and official capacities)

70.Plaintiffs incorporatE; into this cause of action by reference Paragraphs 1 through

f;7 herein as though each were fully set forth in this cause of action.


all times mentioned herein, DEFENDANTS conduct was intentional and

malicious and done for the purpose of causing Plaintiff to suffer humiliation

mental anguish, and emotional and physical distress.

72. As a proximate result of DEFENDANTS' acts and/or omissions to act , as

hereinabove alleged , Plaintiff suffered severe humiliation, mental anguish , and

emotional and physical clstress , and has been injured in mind and body.

Additionally, Plaintiff has suffered lost wages , medical and related benefits , and

incurred considerable expense.

SEVENTH CAUSE OF ACTION - NEGLIGENT INFLICTION OF EMOTIONAL

DISTRESS

(Against defendants CITY, TAM , KURITA, and GALLANT)




aU times mentioned herein . DEFENDANTS knew , or should have knovvn, that

their failure to exercise due care in the performance of the terms of its

agTeement(s) with Plaintiff would cause plaintiff severe emotional distress.




75. As a proximate result ofDEFENDAcl\TS' acts and omissions to act as described

hereinabove Plaintiff has suffered humiliation , mental anguish , and emotional

and physical distress.

76. As a further proximate result of DEFENDANTS' acts and omissions to act as

described hereinabove and the consequences proximately caused by it , as

hereinabove alleged , plaintiff suffered severe emotional distress and mental

suffering, to amount subject to proof at trial. Additionally, Plaintiff has suffered

lost. wages, medical and related benefits , and incurred considerable expense.

EIGHTH CAUSE OF ACTION - DEFAMATION

(Against defendants CITY and individual defendants KURITA and TAM in

both their individual and official capacities)



78. Defendants and its agents falsely accused plaintiff of using CITY gas for

personal use without. authorization.

79. Plaintiff is informed and believes and, based on that information and belief

alleges , that defendant and its agent.s published their words or belief that

plaintiff had, without authorization , used CITY gas in his personal vehicles and

for personal use. The statements were made orally and published in several

newspapers of general circulation.

80. Defendants, and its agents , kne\v the statements were false because plaintiff was

granted authorization to use CITY gas in his personal vehicle as part of his

contract of hire \vith KURITA. Nevertheless , defendants failed to counter the

defamatory publications against plaintiff, knowing them to be false. The

Kapler. ComplaiTIt For Damages



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defendants acted intentionally, and with malice towards plaintiff in the initial

publication and in acquiescing to the defamatory statements.

81. As a result of defendants' unlawful conduct plaintiff has suffered general

damages to his reputation in an amount in excess of $2 000 000.

82. As a further proximate result of defendants ' unlawful conduct , plaintiff suffered

the rollowing special damages: a loss or salary and attendant benefits; a loss of

title and attendant benefits in the plaintiffs profession: an to plaintiffs injury in

an amount in excess of $2 000 000.

83. Defendants ' conduct arose from ill-wil toward plaintiff and a desire to oppress

plaintiff and with the vvrongful intention of injuring plaintiff. The conduct was

taken with an improper and evil motive amounting to malice and in conscious

disregard of plaintiffs rights and abilities. Because the actions taken toward

plaintiff were carried out in a cold, deliberate , callous and intentional manner in

order to injure and damage plaintiff, plaintif is entitled to recover punitive

damages from defendants in an amount according to proof and in and amount

appropriate to punish and make an example of derendant.

TENTH CAUSE OF ACTION - VIOLATION OF FIREFIGHTERS BILL OF

RIGHTS

(Against defendant CITY)


81 herein as though each were fully set forth in this cause or action.

85. Plaintiffs employment with the CITY was protected under California

Government Code Section 3250 , et seq. (otherwise known as the Firefighters' Bill

of Rights).

Kapler Complaint For DamagE's



86. Defenclant CITY, its employees , agents , and assigns, were aware that the

Plaintiffs employment was included within the provisions ofthe Firefighters ' Bill

of Rights. Nevertheless , in contravention oftheyrotections , rights and duties,

covered in that Bill, defendant permitted and participated in the wrongful acts

set forth in paragraphs 1 through 82 , and incorporated herein by reference.

87. As a result of defendants ' unlawful conduct plaintiff is entitled to the damages

set forth in the firefighter s bill of rights , $25 000.00 for each violation , in a total

amount to be proven at triaL

WHEREFORE, PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANTS

AND EACH OF THEM , AS FOLLOWS:

For an order declaring that defendant violated Government Code section 3250 , et

seq.

2. For an order compellng defendant to immediately convey to plaintiff the total

funds of $25, 000.00 for each violation of Government Code section 3250 , et seq.

3. For compensatory damages , including lost wages and benefits, and emotional

distress damages , in an amount according to proof;

4. For punitive damages against individual defendants;

6. For preJudgment interest at the legal rate on all amounts claimed;

6. For all damages for the proximate and foreseeable loss resulting from defendant's

breach of contract;

7. For costs of suit herein incurred; and

8. For such other and further relief as the COlU't may deem just and proper.




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DEIv1A.ND FOR JURY TRIAL

Plaintiff hereby demands trial of this matter by jury.

Date: April

L, 2011


Denise Eato May

Attorney for Plaintiff



Ashevi lie Realty Assoc Fax:B2B-258-3633 7 2G11 OB;21pl1 P001!G01

VERIFCATIN

L DAVI KAI$R am a plaiti in the ntit1ed act I 1:ve :r d th.e

fOre oov t and knOw th g;teD. thref. ', eaeis tre' of

my oWknll:Q:e, . .pt as to thse. matters whi are the:raIeged on .itin m.beli f, and as to those matts, I believe it to betre.I dee -uder pena Qf perjur Under the laws of the State ofCa that

:oo 7J;/"id-DAVI KA:g

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Documents

Kapler Versus Alameda