Zahau Family Lawyer Sees Suit vs. Sheriff Appealed no Matter Outcome on Friday

by Ken Stone

6 hours ago

https://timesofsandiego.com/crime/2021/11/09/zahau-family-lawyer-sees-suit-vs-sheriff-appealed-no-matter-outcome-on-friday/

The rubber hits the road Friday in the Zahau family’s lawsuit against Sheriff Bill Gore when a Superior Court judge hears arguments on whether the suit itself can go forward.

Relatives of Rebecca Zahau — whose 2011 Coronado mansion death was deemed a suicide by the Sheriff’s Department but a homicide in a civil trial — want access to all investigative files in the case, plus records of what Gore told a “review team” after that civil verdict.

Pari Zahau (Rebecca’s mother) and Mary Zahau-Loehner and Douglas Loehner (sister and brother-in-law) say the California Public Records Act requires Gore and the county to release records in the sensational case.

Gore, represented by county lawyer Thomas Deák, notes that the records act allows him to withhold investigative files from public release and wants the suit killed.

But Judge Timothy B. Taylor, at a 1:30 p.m. hearing Friday in downtown Superior Court, will consider the Zahau family’s argument that the suit should be kept alive — with a rescheduled Jan. 28, 2022, hearing on its actual request for the records.

Zahau family attorney C. Keith Greer at first told Times of San Diego that the January hearing would likely stand.

“This is really a question of law regarding whether a public agency can make a statement to the public about what they are doing, and then be able to deny access to documents which show that in fact they are lying to the public,” the Rancho Bernardo lawyer said late Friday night via email.

But calling it an “interesting issue,” he then said the case would “likely … go to the [state] court of appeals.”

Greer added Sunday: “The hearing on Friday is very important because it could result in dismissal of the case. Which would move the battle to the appellate court. Conversely, a ruling in our favor bodes well for our chances of succeeding on the merits at the final hearing.”

Late Tuesday, Greer clarified that he wasn’t expecting defeat.

“I think we will win, but whoever loses will file an appeal,” he said via email. “In other words, no matter what the judge decides, this case will go to the court of appeal.”

County attorney Deák declined a request for comment, saying: “I am not authorized to discuss the matter while it is pending.”

Dueling briefs argue for and against the county’s demurrer — which tells the court that the allegations in the lawsuit do not provide legally sufficient reason for Gore to be sued.

If Judge Taylor sustains the demurrer — and doesn’t allow the Zahaus to submit a revised complaint — the case would likely be dismissed.

In a September filing, Deák wrote that the county demurs because:

The records the Zahaus seek are law enforcement investigatory files, exempt from disclosure under CPRA.

The disclosure of some investigatory files waives the exemption only for the disclosed files.

And no partial disclosure exemption waiver can occur under the CPRA as a matter of law.

Likewise, Deák says, the Zahaus can’t cite a law saying the sheriff’s instruction on how to proceed with a probe aren’t also “exempt” investigatory files under the CPRA.

A Nov. 1 brief by the Zahau family attorney quotes an October 2011 letter from Gore to the Zahaus that said: “The Sheriff’s Department is complying with this requirement not merely by releasing the information required by statute, but by releasing the complete investigative file.”

>>14965692

(contd)

Lawyer Greer writes: “The Sheriff’s written statement is clearly sufficient to make it a question of fact as to the Sheriff’s ‘actual intention to relinquish’ the [CPRA] exemption or, alternatively, to constitute ‘conduct so inconsistent with any intent to enforce the right’ as to induce a reasonable belief that it has been relinquished.”

Greer said Gore also waived rights to withhold information on the case by publicly disclosing what the “review team” was allegedly doing.

“Such publications show that Sheriff Gore clearly either wanted to convince the public that the Department was performing a fresh investigation, or at a minimum acted in a manner so inconsistent with any intent to keep what the “review team” was doing secret, so as to induce a reasonable belief that any right to secrecy over what the team was doing had been relinquished.”

All the Zahaus are asking is “documentation to confirm that what Sheriff Gore advised the ‘review team’ to do is consistent with what he told the public they were doing,” Greer said.

As alleged in a revised lawsuit, the Zahaus think that Sheriff Gore’s statements to the public were intended to make it believe he was reopening the investigation.

“[But] in fact these representations were intentionally deceptive and cleverly orchestrated to hide Sheriff Gore’s true intention and plan, which was to give lip service to the investigation while putting constraints on the ‘review team’ that were so stringent they could not do anything other than support Gore’s prior decision,” Greer said in the brief.

In a footnote, Greer said his clients have asked the sheriff to produce correspondence between officers involved in the investigation and all interdepartmental memoranda, detective notes and detective workbooks, and records reflecting why Gore didn’t try to obtain cell phone records of Adam Shacknai,” whom the civil jury found responsible for Rebecca’s death.

Deák in a September brief challenged the logic of the Zahau suit.

The county lawyer took issue with arguments that “since the sheriff has already allegedly produced the complete ‘investigative file’ … any additional documents relating to the investigation are admittedly not part of the ‘investigative file’ and thus not subject to the privilege afforded” under CPRA.

Deák continued: “One may conclude — as a matter of pure logic — that, if all ‘investigative files’ have been produced, then no ‘investigative files’ have been withheld.”

“However,” he added, “[The Zahaus] do not allege the Sheriff, in fact, produced all investigative files; rather, they allege the Sheriff — in 2011 — purported to produce all investigative files.

“Moreover, to the extent [Zahaus] allege the Sheriff did produce all investigative files, then it is unclear what records [the Zahaus] contend have been wrongly withheld (i.e., there is no allegation that [the Zahaus’] requested records unrelated to the Zahau Investigation).”

Greer in April said he planned a book about the Zahau death if the investigation was reopened.

In April 2018, after a San Diego jury found the brother of Rebecca Zahau boyfriend Jonah Shacknai responsible for her death, sheriff’s candidate Dave Myers said: “As Sheriff, I will reopen the criminal case with a new set of eyes.”

Running again in 2022, Myers still follows the case closely. Monday, in reaction to a KUSI report on the Zahau case, he said: “When the evidence doesn’t match up, law enforcement has an obligation to investigate why.”

>>14965696

>I knew I liked him..

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