NASH & EDGERTON LLP
JUSTIN HOUTERMAN (CA Bar No. 211703)
2615 Pacific Coast Hwy., Suite 300
Hermosa Beach, CA 90254
Telephone: (310) 937-2066
Facsimile: (310) 937-2064
Attorneys for Plaintiff Samuel Y. Edgerton

[Court's rubber stamp:]
FILED
Los Angeles Superior Court
Dec 03 2003
John A. Clarke, Clerk
By Monica T. Lim, Deputy 

vs.

FRED H----, an individual,
ROGER C----, an individual, and
DOES 1-50 inclusive,
Defendants.

CASE NO. YC048116

VERIFIED COMPLAINT FOR DAMAGES
FOR LIBEL AND PUBLICATION OF
FALSE OR FRAUDULENT CAMPAIGN
ADVERTISEMENTS (CIVIL CODE § 3344.6)

[Printed at bottom of each page:]  VERIFIED COMPLAINT FOR DAMAGES FOR LIBEL

Plaintiff, Samuel Y. Edgerton, asserts as follows:

1.         At all times, Plaintiff Samuel Y. Edgerton (“Edgerton”) was an individual residing in Hermosa Beach, County of Los Angeles, State of California.

            2.         Edgerton is a business lawyer and is a principal of the law firm of Nash and Edgerton, LLP based in Hermosa Beach, California.
                                                                                                                                   
            3.           Edgerton is also a Councilman of Hermosa Beach California having been popularly elected in 1991, 1995, 1999, and 2003.   Most recently, Edgerton was a successful candidate for reelection to Hermosa Beach City Council on the November 4, 2003 ballot.

             4.           Edgerton has resided in Hermosa Beach for approximately 20 years and maintains his law firm there.

5.         Defendant Fred H---- (“H----”) is an individual who resides in Hermosa Beach, California. 

6.         H---- ran unsuccessfully for Hermosa Beach City Council in 1999. Losing to Edgerton is one source of animus for H---- against Edgerton. Losing to Edgerton, in part, motivates H----’s publication of the libelous statements complained of by Edgerton herein.

7.         H---- is a professional political consultant. He owns a company called the “Political Scientists” and operates the business out of his home in Hermosa Beach
.
            8.         Defendant Roger C---- (”C----”) is an individual and a resident of Hermosa Beach, California. He runs a wine business out of his home in Hermosa Beach.

            9.         C---- was elected to the Hermosa Beach City Council in 1987. He did not run for reelection in 1991 when Edgerton was elected. Instead, C---- ran again in 1995 against Edgerton and others and finished last in a field of eight candidates. 

            10.       Losing to Edgerton is one source of animus for C---- against Edgerton. Losing to Edgerton, in part, motivates C----’s publication of the libelous statements complained of by Edgerton herein. 

11.       On information and belief, Fred H---- and Roger C----, are principals and members of a political action committee (“PAC”) called “Citizens for a Better Hermosa Beach.”

            12.       Defendants formed a PAC called “Citizens for a Better Hermosa” in or about October 2003 for the express purpose of defeating the candidacy of Edgerton to the Hermosa Beach City Council. The initial filing for this organization was made on California Form 496.  California Form 496 for Late Independent Expenditure form for “Citizens for a Better Hermosa Beach,” dated received by the Hermosa Beach City Clerk’s Office on October 30, 2003 and again on November 3, 2003, is attached as Exhibit “1."

 13.       Edgerton is ignorant of the true names and capacities of the defendants sued herein as DOES 1 through 50, inclusive, and, therefore, sues these defendants by such fictitious names Edgerton will amend this complaint to allege their true names and capacities when those names and capacities are ascertained. On information and belief, Edgerton alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, in that Edgerton’s damages as alleged herein were proximately caused by their acts, decisions or omissions.

 14.       On information and belief, Edgerton alleges that, at all times relevant hereto, defendants DOES 1 through 50, inclusive, were the co-principals or agents of other named defendants, and each of them, and, in doing the things alleged herein, were acting within the course and scope of such relationship and with the permission and consent of the other defendants. Each act, decision or omission on the part of each such agent and employee was ratified and approved by the other defendants, and each of them.

 15.       On information and belief, the named defendants and DOES 1 through 50 knowingly and wilfully [sic] conspired and agreed among themselves to commit the acts described below

 16.       In or about October 2003, defendants published a mailer. Defendants then mailed this mailer to registered voters throughout Hermosa Beach through their PAC “Citizens for a Better Hermosa Beach” [sic] entitled “Councilmember Sam Edgerton’s Number One Special Interest” (“special interest mailer”). The special interest mailer is attached as Exhibit “2.”

             17.       The special interest mailer included the defamatory, false and libelous statement:  “Edgerton refuses to disclose on his financial disclosure forms (required by law) whether any Hermosa Beach bars and restaurants are clients of his law firm. (Source: Hermosa Beach City Clerk’s office).” This statement is false and libelous on its face. It clearly exposes the plaintiff to hatred, contempt, ridicule, and obloquy.

 18.       The true fact is that none of the bars and restaurants of Hermosa Beach are clients of Edgerton or his law firm, Nash and Edgerton, LLP.

 19.       The special interest mailer in claiming that “Edgerton refuses to disclose on his financial disclosure forms (required by law) whether any Hermosa Beach bars and restaurants are clients of his law firm (Source: Hermosa Beach City Clerk’s office)” has accused Edgerton of filing lies on legally required forms filed with the Hermosa Beach City Clerk. This is false. The truth is Edgerton completely and accurately filled out all the required forms. Further, that no one from the Hermosa Beach City Clerk’s Office ever reported otherwise.

             20.       H----, a professional political consultant, and C----, a former Hermosa Beach Councilman (collectively referred to as “defendants.”), are politically experienced. Both individuals knew that Edgerton had not falsified any form that he had filed with the Hermosa Beach City Clerk. Both H---- and C---- had themselves filled out the same or similar forms when they ran, for the same office - Hermosa Beach City Council. They both knew what the required forms were, where they were filed, and how to access them. Accusing Edgerton of lying on these same required forms was either the knowing publication of a lie or the reckless publication of a falsehood with an absolute disregard for the truth.

 21.       In statements to the press, H---- admitted that he had no proof to back up his statements that Edgerton refused to disclose on required forms. In fact, H---- recently stated to the press that “[Edgerton] doesn’t disclose [whether or not he has Hermosa Beach bars and restaurants as clients], therefore he is refusing to disclose.” See Daily Breeze newspaper article dated November 7, 2003, entitled “Edgerton blames late mailings” attached as Exhibit “3.” H----’s statement to the press confirms he knew the statement complained of in paragraphs 17 and 19 were false when made. It further shows that, in fact, there was no inaccurate form filled out with the City Clerk by Edgerton. Rather, defendants wholly invented both the refusal of Edgerton to disclose whether or not he has bars and restaurants in Hermosa Beach as clients and that the City Clerk was the source of proof that Edgerton had refused to disclose the information.

 22.       The special interest mailer further included the defamatory, false and libelous statement: “Edgerton opposed placing a ballot measure before the voters to make the Pier Avenue Plaza bars pay their fair share for police protection (Source City Council minutes, 7/22/03).” This statement is false and libelous on its face.

 23.       The truth of the matter is that a bar tax proposal was not even considered by the Hermosa Beach City Council on July 22, 2003. the Hermosa Beach City Council minutes for 7/22/03 are attached as Exhibit “4.”

 24.       Again, H----, a professional political consultant, and C----, a former Hermosa Beach Councilman, are politically sophisticated and experienced. Defendants knew how to look up the minutes for a Hermosa Beach City Council meeting. C---- as a former Councilman in Hermosa Beach is particularly knowledgeable on this subject. Therefore publishing the statement “Edgerton opposed placing a ballot measure before the voters to make the Pier Avenue Plaza bars pay their fair share for police protection (Source: City Council minutes 7/22/03)” is either the publication of a known lie or the reckless publication of a falsehood with an absolute disregard for the truth.

 25.       Notwithstanding defendants’ lies detailed in paragraphs 22, 23, and 24, the true fact is that such a downtown bar tax is beyond the ability of a municipality to enact. That kind of tax is called a “tippler tax.” Municipalities cannot impose such a tax.

 26.       The special interest mailer further included the defamatory and libelous statement:  “The Hermosa Beach Downtown Tavern, Bar and Restaurant Assn. is spending thousands of dollars running an ‘independent’ campaign to make sure Edgerton is re-elected (Source: Easy Reader 10/23/03).” This statement is false and libelous on its face.

 27.       The 10/23/03 issue of the publication The Easy Reader, the stated source for the misleading assertion that the Hermosa Beach Tavern, Bar and Restaurant Association was “spending thousands of dollars” to “make sure” Edgerton was reelected, contains no such statement.

 28.       The only mention of the Hermosa Beach Downtown Tavern, Bar and Restaurant Assn. (“association”) in the 10/23/03 edition of the Easy Reader is a letter written by Leigh Lupinacci on behalf of the association. The letter states that “[a]ll expenditures prior to Oct. 14 have been independent expenditures of Sam Edgerton, Pete Tucker or any other candidate. Furthermore, these expenditures have been less than $1,000.00.” This letter further states that the association has “taken it upon ourselves to register the young voters of Hermosa Beach, specifically, those residents between the ages of 21-35.” The letter written by Leigh Lupinacci is attached as Exhibit “5.”  [Exhibit 5 is available on killthegoose.com.  Click on the underlined link above.]

 29.       Virtually the entire special interest mailer is made up of either false or misleading statements and assertions about Edgerton and his record of public service.

 30.       The special interest mailer referred to Edgerton by name throughout, was made of and concerning the Edgerton, and was so understood by those who read it. [sic]

 31.       The libelous special interest mailer was received and read in or about the first few days of November 2003 by registered voters throughout Hermosa Beach, California.

 32.       As a proximate cause Edgerton’s reputation was damaged by this publication. Edgerton was subject to ridicule hatred, contempt, and was shunned and avoided. Many voters did not vote for Edgerton as a result of the publication of the libelous special interest mailer. Edgerton was further damaged by the suffering these defamatory statements caused to his wife.

 33.       In late October 2003, defendants published a second mailer that they mailed to registered voters throughout Hermosa Beach entitled “The Truth about Councilmember Sam Edgerton” (“second mailer”). This second mailer included numerous defamatory and libelous statements. A copy of this second mailer is attached as Exhibit “6.”

 34.       The second mailer included the defamatory and libelous statement: “Edgerton has received thousands of dollars from the Sanitation District. Official attendance records show that when Edgerton is paid to go to a meeting, he attends the meeting and when he isn’t paid to go to a meeting he doesn’t bother to attend.” This statement is false and libelous on its face.

 35.       The true fact is that Edgerton has not received thousands of dollars as claimed. Local mayors and mayors pro tempore are required to attend the Sanitation District meetings in Torrance, California. The Sanitation District pays elected officials who attend the meeting $100.00. Edgerton over the last 12 years has attended these meetings, as required, when he served as Mayor of Hermosa Beach. Edgerton, a three time Mayor, has not earned more than $1,500 in total from attending the Sanitation District meetings.

 36.       Virtually every fact in the entire second mailer is made up of misleading statements about Edgerton and his record of public service.

 37.       The second mailer was received and read in the first few days of November by registered voters throughout Hermosa Beach, California.

 38.       As a proximate cause Edgerton’s reputation was damaged by this publication. Edgerton was subject to ridicule, hatred, contempt, and was shunned and avoided. Many voters did not vote for Edgerton as a result of the publication of the libelous second mailer. Edgerton was further damaged by the suffering these defamatory statements caused to his wife.

 39.       Upon information and belief, in or about November 1, 2003 H---- recorded, in his own voice, a automatic voice message (“voice message”) which he caused to be telephonically transmitted to thousands of households and businesses throughout Hermosa Beach, California.

 40.       The voice message attempts to dissuade voters from voting for Edgerton because of what the message characterizes as Edgerton’s unmitigated support for all Hermosa Beach bars. Although the recorded telephone message pretends to support Edgerton, it was not authorized by him and casts him in a false light.

 41.       The voice message claims to be supporting Edgerton’s 2003 reelection to Hermosa Beach City Council. The voice message falsely portrays Edgerton as the “bar’s candidate,” in an attempt to keep people from voting for Edgerton and [sic] embarrass him. The voice message was false, unprivileged, spoken in Fred H----’s own voice, and was telephonically transmitted to registered voters throughout Hermosa Beach.

FIRST CAUSE OF ACTION

(Libel On Its Face Against All Defendants)

 42.       Edgerton repeats and realleges paragraphs 1 through 41, as if set forth in full herein.

 43.       The special interest mailer and the second mailer were published by the defendants with actual malice. The defendants published libelous statements that were libelous on their face; those statements required no other information to be understood as derogatory and defamatory of Edgerton.

 44.       Defendants published both mailers knowing the statements discussed in this Complaint to be false or with reckless disregard to their truth.

 45.       The statements contained in both mailers were read by numerous people who received these mailers via the United States Mail. The statements were understood by the people reading them to be about Edgerton.

 46.       As a proximate result of the above-described publications, Edgerton’s reputation has suffered and he was shunned or avoided.

 47.       The above-described publications were not privileged because they were published by defendants with actual malice and ill will toward Edgerton and the desire to injure him, in that defendants had expressed a desire to “get Sam.” Because of defendants’ malice in publishing, [sic] Edgerton seeks general damages according to proof, as well as, punitive damages, and special damages.

 48.       Edgerton repeats and realleges paragraphs 1 through 47, as if set forth in full herein.

 49.       The special interest mailer and the second mailer were published by the defendants with actual malice. The Defendants published libelous statements in both mailers knowing these statements to be false or with reckless disregard to their truth.

 50.       Defendants published both mailers knowing the statements discussed in this Complaint to be false or with reckless disregard to their truth.

 51.       The statements contained in both mailers were read by numerous people who received these mailers via the United States Mail. The statements were understood by the people reading them to be about Edgerton.

 52.       As a proximate result of the above-described publications, Edgerton’s reputation was damaged, and he was shunned or avoided.

 53.       The above-described publications were not privileged because they were published by defendants with actual malice and ill will toward Edgerton and the desire to injure him, in that defendants had expressed a desire to “get Sam.” Because of defendants’ malice in publishing both special interest, [sic] Edgerton seeks general damages according to proof, punitive damages, and special damages.

 54.       Edgerton repeats and realleges paragraphs 1 through 53, as if set forth in full herein.

55.       Defendants published the statement “Edgerton refuses to disclose on his financial disclosure forms (required by law) whether any Hermosa Beach bars and restaurants are clients of his law firm. (Source: Hermosa Beach City Clerk’s office).” This statement is a false and fraudulent misrepresentation of a public document, namely the California Form 700 filed by Edgerton in 2003. California Form 700 is entitled “Statement of Economic Interests” and it is the form that requires the disclosure of economic interests that Edgerton, as an elected official, has within Hermosa Beach. Therefore, defendants’ statement fraudulently misrepresented the California Form 700, a public document, filed by Edgerton on August 8, 2003.

 56.       Defendants published this statement in a mass mailing as defined by Government Code § 82041.5.

 57.       Defendants published this statement knowing it was false and with the intent to deceive-registered voters about what Edgerton had disclosed on the legally required California Form 700.

 58.       California Form 700 is a public document and it must be filed by a candidate for public office and those who hold public office. It is the form “required by law” defendants refer to in their false and misleading statement.

FOURTH CAUSE OF ACTION

(False Depiction or Representation of an Official Public Document
in Violation of California Civil Code § 3344.6
Against All Defendants: Hermosa Beach City Council Minutes)

 59.       Edgerton repeats and realleges paragraphs 1 through 58, as if set forth in full herein.

 60.       Defendants published the statement “Edgerton opposed placing a ballot measure before the voters to make the Pier Avenue Plaza bars pay their fair share for police protection. (Source: City Council minutes, 7/22/03).” This statement is a false and fraudulent misrepresentation of a public document, namely the Hermosa Beach City Council minutes for July 22, 2003.

 61.       Defendants published this false and fraudulent statement knowing it was a misrepresentation and with the intent to deceive registered voters about Edgerton’s actual public record and what the Hermosa Beach City Council was actually considering on July 22, 2003.

 62.       Hermosa Beach City Council minutes for any given Council meeting are a public document, are adopted by the Hermosa Beach City Council and maintained by the Hermosa Beach City Clerk’s Office.

 63.       Defendants published this statement in a mass mailing as defined by Government Code § 82041.5.

 WHEREFORE, Samuel Y. Edgerton prays for judgment against Defendants, and each of them, as follows:

 1.         For general damages according to proof.

 2.         For special damages according to proof.

 3.         For punitive damages according to proof, but not less than one million dollars.

 4.         For costs of suit incurred herein;

 5.         For such other and further relief as the court may deem just and proper.

 
DATED: December 3, 2003                              

NASH & EDGERTON, LLP
JUSTIN HOUTERMAN

[signature]

Justin Houterman
Attorneys for Plaintiff