Aguirre’s Legal Flaw

Thursday, Aug. 16, 2007 | After losing the pension case by filing the case too late, suing the wrong parties for two years, and merely re-litigating the same issues which Michael Conger previously settled with the city in July 2004, Aguirre now recommends to the city council that they legislatively rescind the benefits after he has judicially established them as completely and fully legal and beyond legal attack. This is a ridiculous and wasteful idea. He has already established that the benefits are lawful.

Moreover, he continues to completely avert the public’s attention from the fundamental fact that the case has already been brought once before and all of this litigation has always been an enormous waste of taxpayer money. Like Double Jeopardy for criminal cases, Res Judicata for civil cases prevents a case from being twice tried on the same claims. Aguirre’s claims are the exact same as those brought by Conger and therefore would not, could not be properly brought a second time. That is why Phase One of the trial eliminated nearly all of the claims, regardless of the statute of limitations.

Second, the four-year statute of limitations or a one-year statute of limitations makes no difference to this case. Recall that Aguirre alleged that on Nov. 18, 2002, a whistleblower announced to the world that a real problem existed for which an investigation should be brought, etc. That started the “ON-NOTICE” clock running for the purposes of any late discovery. Furthermore, Aguirre himself had previously threatened to bring suit, but failed to do so, leaving it to Conger.

That means that a claim would be required to be filed within four years of Nov. 18, 2002, or Nov. 18, 2006. As of that date, Mr. Aguirre had only sued a handful of individuals, who he then dismissed when it was discovered that a certain law firm performing work for the city had a conflict of interest with those same defendants. Thereafter, a trial was begun against only one party, the San Diego City Employees’ Retirement System — the wrong party.

SDCERS was not the right party, given the rights at issue. Therefore, on Nov. 18, 2006, Aguirre had not sued the right parties and could not thereafter resurrect a time-barred case via amending or changing the parties. At most, the DOE defendants would be before the court under the relation-back doctrine. That would be 50 people of 11,000.

Mr. Aguirre’s efforts have been a litigation malpractice potpourri which predictable consequences; he just can’t admit it for political reasons, namely trying to save his own hide. For all the money, time and effort, he did not sue the right people at the right time, and any failure to get rid of the $900 million “burden” which he claims the pension system may suffer under, is entirely his and his alone.

No appeal is going to solve that basic problem, though it may distract people from focusing on the real facts, circumstances and cause of this litigation loss. As before, this is giant waste of taxpayer money.