A lean compromise is better than a fat lawsuit.
Spin Cycle’s moment in the legal sunshine has been put on hold. Bummer.
When news broke last week that the four-year nuclear war between activist attorney Cory Briggs and the Tourism Marketing District over the agency’s funding method was headed for a fizzling conclusion, the reaction from Briggs haters was swift and biting.
“So @corybriggs TMD suit goes down with a whimper! #blowhard,” rejoiced Steven Johnson, former vice president of public affairs for the San Diego Convention Center, an entity known to ooze contempt for Briggs and his legal-log-jam efforts to kill its bayfront expansion dreams.
The center’s contiguous expansion cheerleaders over at the San Diego Union-Tribune wasted no time trumpeting the latest development. “Tourism lawsuit headed for dismissal,” tooted the headline. High up, the story explained that Briggs, in court filings last week, “conceded” that his lawsuit “will have to be dropped in light of funding changes made earlier this month.”
Those changes made in early August by the San Diego City Council, the story noted toward the end, were “attributed to the difficulty of verifying charges on Air-bnb-type rentals.”
“It had nothing to do with the litigation,” Briggs said mockingly. “Total coincidence. Utter coincidence.”
Briggs, naturally, had a different take. The TMD “got weak in the knees,” he said. “They said, ‘Uncle.’ They invoked the mercy rule before we’re going to trial.”
That trial was set to begin this past Monday. And Spin Cycle was prepared to take the witness stand.
Say what huh, you ask? Yes, yours truly had been asked to testify that day, ostensibly to confirm receipt of an email from TMD Chairman Bill Evans last September for a CityBeat column about a website, hoteliercabal.com, that was laying blame for much of San Diego’s poor decision-making at the feet of politically influential local hoteliers like Evans, whose family operates the Bahia and Catamaran hotels on Mission Bay and the posh Lodge at Torrey Pines.
Evans, in the email, dismissed the criticism, denying that hoteliers “are some secret society that controls the city.”
“We have one goal,” he wrote, “and that is to increase TOT [transient-occupancy tax] for the city. If that is someway harmful to the citizens of San Diego, then I guess we are guilty. TOT is the second largest contributor to the general fund, over $170 million last year, and it is used to fill potholes, pay cops and improve the city in thousands of ways, all at a zero cost to the citizens of San Diego.”
Evans went on to note that over the years, “an increasingly small percentage of the TOT was used to promote the city. The TMD has attempted to correct that and uses 100 percent of our funds to promote San Diego.”
The only problem? In a deposition taken by Briggs in early July in preparation for the trial, Evans evoked a foggy memory. We’ll let the deposition take it from here:
Briggs: Do you recognize that email?
Evans: I do not.
Briggs: You don’t recall writing that email to Mr. Lamb?
Evans: I don’t specifically recall writing this email.
Briggs then shows Evans a copy of the aforementioned column, and much to Spin’s glee Evans remarks, “Yes, I’ve read it before.”
When asked if he is accurately quoted in the column, Evans at first says, “I don’t know.” When pushed, Evans appears to find some clarity. “Is it factually accurate or is it my quote exactly as I spoke?” he says. “I will tell you I believe it’s factually accurate. I don’t know if that’s exactly what I told him.”
Evans then pokes Spin by saying, “I have had experience with Mr. Lamb taking things out of context and quoting me incorrectly.” This was, of course, news to Spin, since the memory banks can’t recall one instance where Evans has complained about a column.
In the deposition, Briggs again asks Evans if the substance of the quote is “correct or accurate.” Lo and behold, the fog seemingly clears. “In my opinion,” Evans concedes, “those are—those are truthful statements. I’m not sure I made those, but I believe that they are, from what I understand, to be true.”
What’s more telling in the deposition of Evans and fellow hotelier and TMD director Richard Bartell is the lack of any concrete proof about what tourism promotion in San Diego actually does.
“It’s a slush fund,” Briggs said. “You spend $30 million a year to promote the city, and all you know is that the pie has gotten bigger. But you don’t know who got to eat how much of the pie. They don’t track the fucking money.”
The TMD, he said, knows “correlation, but they don’t know causation. Legally it matters, because under the constitution, you can’t be required to pay more than the reasonable cost in relation to the value that you get in return.”
When the City Council earlier this month voted to dump its 2012 decision to assess all lodgings— including Airbnb rentals—a 0.55 percent fee for establishments of fewer than 30 rooms and a 2 percent surcharge for those 30 rooms and larger, it defaulted back to assessing just bigger hotels (those with 70 or more rooms). Briggs was vacationing in New Zealand when the vote occurred.
Briggs said that decision makes those assessments “arguably legal.” Hence, the reason to dismiss the case, which a judge is set to decide officially on Sept. 1. The phrase, however, is “dismissed as moot,” which carries a big distinction.
“Dismissed by itself means you lost on the merits,” Briggs explained. “Dismissed as moot means the party you were suing basically capitulated before the judge could order them to. The goal was to get them to comply with the law. We succeeded. Anything else is a pound of flesh, and that’s not why I do this.”
But is he done fighting the TMD? “I’m not telling anybody what’s next,” Briggs said. Stay tuned.