By Lloyd G. Carter
(Editor’s note: In Part 1 of this two-part series, which ran last month in the Community Alliance and was titled “Perdition Road,” the battle over Cascadel Road in mountainous eastern Madera County was explained, leading to the civil settlement of a court suit by Madera County. County Supervisor Tom Wheeler called the settlement agreement flatly illegal and in violation of the county’s own codes. Part 2, entitled “Road Warrior,” addresses how Mark Stamas, who fought to keep the road open, was charged with five misdemeanors by County Counsel David Prentice, charges that were later dismissed. Stamas fought back with a civil rights suit in federal court but ultimately settled because of the costs involved.)
North Fork (eastern Madera County)—In mid-October 2007, Mark Stamas, then president of the 106-home Cascadel Woods Property Owners Association, received a notice in the mail informing him he had been charged with five misdemeanors, which could have resulted in 2.5 years in jail and $5,000 in fines. He was ordered to appear in court November 27.
His crime? On the first or second day of October, he had been standing on a portion of the dirt and gravel fire safety road that runs by his house, and has been in continuous public use for decades and maintained by his homeowners association. Stamas was observing a road grading crew that was repairing the road for the homeowners association under a correction notice from the County Engineering Department. The road skirts the southern boundary of the 106-home Cascadel subdivision, which has been declared the most fire-vulnerable subdivision in the county.
County Counsel David Prentice had reached a secret agreement in December 2006 with Stamas’ neighbors, Gerald Houston and his wife Linda Barlow, to reduce the right-of-way of Cascadel Road across their property from 60 feet to 12 feet. Houston/Barlow had sued the county and had personally sued Stamas, who was later dismissed from the suit when the settlement was reached.
Houston and Barlow had also been out on the road that early October day and took photographs of Stamas and the road graders smoothing the dirt road to fill potholes and repair the drainage trenches along the road. Houston told Stamas he would have him arrested because the agreement with Prentice stated that only the Houstons could maintain the portion of Cascadel Road that crosses their property.
Sheldon Feigel, legal counsel for the Cascadel homeowners, contended the Prentice/Houston agreement applied only to those parties and not to others who had been dismissed as defendants, including Stamas. Therefore, the homeowners could continue to maintain the road as they had done since the 1960s.
Following the road incident, Stamas said Houston made good on his threat to have him charged with criminal acts. After the road encounter, Houston had called his attorney, Greg Chappel of Oakhurst, who then called Prentice and claimed Stamas was “directing” the road graders. Houston was then instructed by Chappel to call Deputy County Counsel David Herman and e-mail Herman about two dozen photos that showed the Houstons, Stamas and the road grading crew on the road that early October morning. Significantly, Sheriff John Anderson did not get involved, finding it to be a civil matter.
Nine minutes after receiving the e-mailed photos from Houston, Herman e-mailed Prentice and claimed the photos showed Stamas “in the act” although Herman never said what the actual “act” was. Herman used the photos to determine five separate misdemeanors had occurred. It was a classic case of prosecutorial overcharging.
One of the misdemeanor counts, failure to get a permit for the road grading, was filed despite the fact county code enforcement officials had been to the disputed road several times in the previous two years, on behalf of Prentice, and had never required a permit. The other counts were even more difficult to comprehend.
One count said it was a crime to “divert, drain, sprinkle or otherwise cause to allow water, silt, mud, or debris to flow or seep onto, into or under any county highway.” None of the photos showed any water, silt, mud or debris.
Another count, subdivision (e), forbid anyone to “place, store, throw, sweep, deposit or permit the escape of any debris, mud, manure, garbage, refuse, carcasses of dead animals, or nauseous or offensive matter, on or under any county highway.” Apparently, Herman believed smoothing a road was a “nauseous” misdemeanor and that the road gravel constituted “debris.”
Another count, subdivision (f), said it was illegal to “park or place” a vehicle on a road “which is likely to injure or create a risk of injury to any person…” Herman also apparently thought the road graders could be deadly weapons.
On November 9, 2007, homeowners attorney Feigel wrote then Madera District Attorney Ernie LiCalsi a letter noting there had been “a long standing civil action” over ownership of the road and that the plaintiffs in that case were the Houstons, who were pressing Prentice for criminal action against Stamas.
“Several things strike me as being inappropriate about this criminal action against Mr. Stamas,” Feigel wrote to LiCalsi. “First, it appears that this action by [county counsel] Prentice, using the authority of your office as a special prosecutor, is nothing more than a backwards attempt to force the CWPOA [homeowners’ association] to adhere to a civil settlement to which they were never a party.” Feigel said Prentice was under the mistaken assumption that he had the authority to force that private settlement on Stamas and the homeowners’ group.
“Mr. Prentice, after filing the criminal action, called my office and when I informed him that it was my feeling that he filed this action solely to threaten Mr. Stamas, he said ‘So sue me. Bring it on!’ Not exactly what I would call an impartial representative of the People of California. Further, I have been contacted by a private law firm, Cota, Duncan & Cole, who have informed me that they have the authority to ‘suspend criminal action against Mr. Stamas if he and the rest of the CWPOA will just abide by the civil settlement agreement.’ I find it interesting that a biased County Counsel (because he has a personal interest in seeing that his civil settlement agreement with Houston/Barlow is carried out) and a private law firm are acting on behalf of the District Attorney’s office to bring and settle criminal actions in order to enforce a civil property dispute.”
LiCalsi, now a Madera County Superior Court judge, did not answer Feigel’s letter, although in a later phone conversation with Feigel he said he would look into the matter. Feigel and Stamas, at that time, were also unaware of how close the connection between Prentice and Cota was.
Prentice, who became county counsel in 2002, left the county for six months in 2005 to join a Sacramento law firm where Dennis Cota also worked and they became friends. Prentice, who had continued to handle cases for Madera County in private practice, returned as county counsel in January 2006. Cota later left the Sacramento firm and opened his own office in Madera. Prentice began referring county cases to Cota, including the Houstons’ lawsuit against the county.
In 2009, the Madera County Grand Jury scolded Prentice for failing to reveal that his wife and 18-year-old son had been hired by the Cota law firm, which, according to county officials, has been paid $2.7 million in legal fees by the county or its insurance carrier for handling cases during the last three years. The Grand Jury said Prentice’s family working at the Cota law firm represented “at best, the appearance of a conflict of interest.” Prentice himself left county employment in December 2010 and now is a partner in the Cota firm.
Stamas Faces Criminal Charges
Stamas dutifully appeared at the nearby Bass Lake courthouse on November 27, 2007, to answer the charges. He was accompanied by attorney Feigel. Deputy County Counsel David Herman appeared on behalf of the county counsel. Stamas denied the charges and the matter was continued to January 15, 2008. At the January 15 hearing, Herman was late in appearing and Deputy District Attorney Shawn Huston substituted for Herman, as Deputy DAs frequently do when another deputy prosecutor is late for court.
Although it was not his case, or even his office that was doing the prosecution (district attorneys normally prosecute crimes but county counsel’s officers are empowered to prosecute some minor misdemeanor matters), Huston surprised everyone by reducing the misdemeanors to infractions, which carry no possibility of jail time. Herman finally showed up to court and he was not happy with what Huston had done.
Huston later explained in a sworn deposition that because of his workload he routinely dismissed minor misdemeanors down to infractions saving his time for prosecuting violent crimes. Huston admitted he stepped on Herman’s toes in reducing the misdemeanors to infractions.
“I could tell by his [Herman’s] demeanor he was upset,” Huston recounted, stating he told Herman he reduced the charges because Herman had failed to show up for court on time. Huston said they discussed the matter and “we just worked it out, and I think we were fine.” When the court formally reduced the misdemeanors to infractions later that morning of January 15, 2008, Herman did not object.
The matter was continued again to May 8, 2008, when an agreement was reached that the infractions would be dismissed if Stamas agreed not to personally maintain the portion of the road crossing the Houstons’ property. The county, in turn, would guarantee a “fully code compliant” road. The county code has long required a 60-foot right of way for a public roadway, and state fire regulations require an 18-foot roadbed for fire trucks.
Although Stamas was now free of criminal charges, he was upset at the way Prentice, Herman and Huston had treated him and damaging his reputation, trumping up charges to force him to drop his opposition to the Prentice/Houston secret settlement. This is not pure speculation on Stamas’ part. In a sworn deposition, Herman admitted he and Prentice discussed filing charges against Stamas to gain a tactical advantage in the dispute over ownership of Cascadel Road.
Herman said he met with Prentice after reviewing the Houston photos, which Herman claimed showed Stamas “directing” the road graders. Prentice and Herman discussed “whether to proceed civilly or to seek criminal prosecution against Mr. Stamas. At the time we did not have—at the time we had not figured out what possible criminal charges, if any, could be levied against Mr. Stamas. However, Mr. Prentice asked me to investigate as to criminal prosecution on the grounds that if the matter was handled by a civil lawsuit, that Mr. Stamas would be indemnified by the homeowners association… The concern was that the civil litigation would be drawn out and expensive and very time consuming because presumably Mr. Stamas [as the homeowners’ association president] would be able to get counsel, and that [it] would be harder to proceed civilly than through regular criminal proceedings for code enforcement.”
After consulting several lawyers, including Fresno civil rights attorney Jack Weisberg, Stamas decided to file a lawsuit in federal court alleging the Houstons, Madera County, Prentice, Herman and Huston had conspired to falsely accuse him of criminal acts to gain leverage in the road dispute. A total of nine claims were lodged, including abuse of process and quiet title (a judicial determination in a land dispute). The case was assigned to federal judge Lawrence O’Neill. The Houstons hired Judge O’Neill’s old law firm, the prestigious McCormick Barstow firm of Fresno.
Two years later, following four motions to dismiss or strike, numerous depositions and two motions for summary judgment, only three claims survived: violation of Stamas’ civil rights (due process), declaratory relief and quiet title. But Stamas had more than $300,000 in legal bills. It would cost a lot more to go to trial, his lawyers told him. He reluctantly decided to settle, unhappy O’Neill would not let his malicious prosecution case be heard by a jury, who, he felt certain, would be outraged by the behavior of Prentice, the Houstons, Herman and Huston.
Whatever O’Neill personally thought of the behavior of the Madera attorneys, he noted that the doctrine of immunity—which even protects prosecutors who get witnesses to commit perjury—also protected the county attorneys from prosecution. O’Neill concluded there was not enough evidence to show the Houstons engineered the criminal charges against Stamas. He also concluded Herman’s cursory investigation of the charges was adequate.
Stamas complains O’Neill ignored, or failed to even acknowledge, the bulk of the evidence presented by Stamas including the discussion by Prentice and Herman to charge Stamas with crimes to gain advantage in the civil matter; private attorney Cota’s offer to get the criminal charges dismissed if Stamas would honor the Houston/Prentice agreement; Feigel’s letters; and Stamas’ personal testimony that Houston told him he would have Prentice prosecute him.
O’Neill’s settlement order required the county to pay $95,000 of Stamas’ legal bills. The Houstons were freed from maintenance of the road as it crosses their property. Stamas’ right to use and maintain the road and widen it to 18 feet (at his own expense) was affirmed. However, the fundamental legal issue, where the 60-foot right of way actually crosses the Houstons’ property remains unresolved. Stamas said a survey paid for by the homeowners confirms, along with common sense, what he alleged all along: The road is in the same place it has been for well over a century and is centered in the 60-foot right-of-way.
Prentice, Herman, and Huston are no longer employed by Madera County. The Houstons now live in the state of Washington and have their Cascadel property up for sale. Road Warrior Stamas vows to fight on to protect the road (and the 60-foot easement) because he believes it is a life-and-death issue should a major wildfire break out in or near Cascadel Woods. He has started a Web site, www.cascadelroad.org, and has said that he will explore all avenues for obtaining justice and protecting the road for public use and fire safety.
On August 3, 2011, the county held a well-attended “ice cream social” for county employees. County officials told the large crowd not to worry, the cash strapped-stricken county was not paying for the event. The tab was picked up by the Cota and Prentice law firm, which continues to do significant business with Madera County. Cascadel Woods remains the most wildfire vulnerable subdivision in the county.
(Disclosure: The author is neighbors with Mark Stamas in the Cascadel subdivision.)
Lloyd G. Carter has been writing about California water issues for 40 years. His Web site is www.lloydgcarter.com.