Posted on 10/14/2005 8:56:07 PM PDT by doug from upland
First, today's adventure is memorialized in song ---
David Kendall, weasel liar...with your client, you conspired
In the morning, I had caught you...I was very pleased to be the one who fought you
Reagan Building was the venue...outside ambush on the menu
It's a FReeper...pleased to meet 'ya...in this case the good guys soon are gonna beat 'ya
$1.6 mil you've been hiding...with some crooks you have been siding
"That is false," you're sternly saying...then you quickly walked away without delaying
Are there comments...don't be shy now...your B.S., sir, will not fly now
There was notice you were given...there's bad news 'cause unlike Vince, Peter's still livin'
In the lobby your were sitting...you are doing evil's bidding
Can't you see...that if the truth prevails, the truth is gonna set you free
How do you live with the lying...when will you stop truth defying
Hillary...will take you down, 'cause sleep with dogs and you get fleas
Wait a minute, Mr. Sleazy...you had gotten off too easy
In the lobby, one more FReeping...it will be a memory that is worth keeping
In your face I would be getting...I want answers...I'm not kidding
Sir, your client is a cheater...on my cell phone would you like to speak with Peter
====================================================================
ORAL ARGUMENTS, California Appellate Court
The adventure began with a 5:00 AM alarm buzzer. An unnamed Freeper, hereinafter referred to as "UF," met me at the Upland Metrolink station, and we headed into Los Angeles on the 6:41 AM train. That is the same train that daughter of DFU took for three years when she attended the Los Angeles County High School for the Arts. Those who have kids know how fast they grow up.
After arriving at Union Station, we took a short cab ride to the Reagan Building at 300 S. Spring. The driver was extremely defensive when we questioned why he was getting on the buy freeway for the very short trip. He was insulted enough to say that he would get off the freeway if we wanted but he is the one who knows what he is doing. Nevertheless, on a $4.80 fare, he got a $3 tip. We right wingers are just too generous.
We arrived at the Reagan Building at about 8:10. We were very early, but I didn't want to miss Kendall. When would there be another opportunity?
I was on hold to speak with Doug McIntyre on KABC, but then I spotted him and hung up on the talk show. There was Kendall by himself. I quickly took UF's tape recorder over and approached Kendall. UF was taking pictures. I introduced myself as Doug (plus real last name -- no, my last name is not really fromUpland) from FreeRepublic.com and shook his hand. Then I told him that I had seen a copy of the July 11, 2001 proof of service when he accepted Peter Paul's lawsuit on behalf of his client, Hillary Clinton. Then I asked him why, when Peter provided proof of $1.6 million of expenses with checks, bank statements, and invoices, why his client allowed a fraudulent FEC filing to be reported on July 30. He immediately shot back very emphatically -- THAT'S FALSE AND I HAVE NOTHING MORE TO SAY. He moved to the entrance very quickly.
Unfortunately the POS recorder given to me by UF did not function, so we didn't have audio. But we have some photos.
After going through the metal detector and being relieved that the metal plate in my head did not set it off, we were suprised to see Kendall in the lobby on a tile bench. He was about 30 feet away and facing the other way. UF put some new batteries in the POS recorder, and we were contemplating the next move. No pictures, by the way, were allowed inside the building.
I called Peter on the phone and decided it just had to be done. With Peter on the phone, I walked over to Kendall and said, "Excuse me again, Mr. Kendall, but this recorder did not work outside. Can you give me a comment on the $1.6 million and the fraudulent FEC report? He was not pleased and said he already told me that he had no comment and he was busy preparing for his case. He wanted me gone. Well, when would I get another opportunity like this? I tried to hand him my cell phone and asked if he would like to say hi to Peter Paul. He was getting more perturbed, and I wondered if soon he would call a guard to come to his rescue. On the phone, Peter was laughing his *ss off.
Unfortunately, UF's POS tape recorder did not work. Rosemary Woods and the 17-minute gap immediately came to mind. UF said that he was tempted to take the POS recorder and smash it against the wall, but he refrained.
Kendall spent some more time preparing, then he started reading the paper. I wondered if he was reading about Hillary coming back to Hollywood, the scene of the crime to rake in more bucks. It was ironic that she would be doing that at the same time he was in court defending her for the previous violation, the mother of all campaign finance frauds.
Two of Kendall's associates were spotted by him and he signaled to them with a finger and thumb gesture looking like he was firing a gun. Had he been in elementary school, he would have been suspended for a week for that gesture. I was tempted to go complain to a guard that he had made a threatening gun-like gesture and should be removed from the building, but that probably wouldn't fly.
He and his associates headed for the elevator. Unfortunately, I did not get there in time to share the ride up to the third floor. Before going to court, he walked by us one more time, smiled, nodded his head and said, "gentlemen." He probably doesn't know I am the same guy who called him a month or so ago and offered to let him tell his side of the story in INDICTING HILLARY, the documentary.
Gary Kreep, the good guy from the United States Justice Foundation (USJF) arrived in the building, and we spent a few minutes talking before court. Then, we all went through another metal detector and made it into the appellate courtroom. In the hall on the wall were the photos of the judges of the various divisions, as well as those from the California Supreme Court. Yep, there was Janice Rogers Brown, the woman who should be preparing for confirmation hearings. Kreep spent several minutes in friendly conversation with the opposing counsel -- two weasels who represented David Rosen, Kendall, and Kendall's female co-counsel, somebody Norman. No, not Greg Norman. But if there was sumo wrestling match between the two of them, she could kick Greg's butt. Hey, just an observation.
The Clinton case was the final one to be heard. I went in and out of the courtroom a few times and caught just a tidbit of what appeared to be a child custody issue involving a mother who had been in prison. I am clueless what it was really about, but at one time one of the attorneys spoke about this woman, who was apparently somewhat nuts, who told another woman to go naked into a cemetar and bury $5,000. I'm sure that Laurie D. Zelon, Earl Johnson, Fred Woods, and presiding justice Dennis M. Perluss found it more fascinating than most of the other cases they hear.
I recognized a familiar face from the Rosen trial. It was Josh Gerstein of the NY SUN, and we spent some time in conversation. I saw no one else with press credentials. He appeared to be the only member of the press who came to the hearing. That is just amazing. Coincidentally, he was in town and covered one of Hillary's money-grubbing events.
A guy walked in who sort of looked Juan Williams. He didn't appear to be a reporter. Immediately after the hearing, he was out of there in a flash. My bet is that he was there on behalf of Hillary.
The arguments were very technical. Kendall had screwed up by not filing his "anti-slap" motion in a timely manner. He lost in the Superior Court and appealed. Gary Kreep feels that it went well and Hillary will not be getting out of this case. If she loses this round, she is likely to go to the California Supreme Court and create more months of delay. Nevertheless, we expect that she will have to raise her right for discovery. That will truly be entertaining for us and bad news for her.
Last item. On the cab ride back to Union Station, we argued with the idiot cab driver who had Air America on the radio. He was truly, truly clueless.
I was just kidding.
I should have known. Doh.
This is an historic and unprecedented lawsuit whose defendants include a former president and sitting senator. It involves the largest campaign finance fraud on record. It involves a senator who is running for re-election in 2006 and the presidency in 2008.
You will see one story -- Josh Gerstein of the NEW YORK SUN was there. He was the only reporter I saw. I spent two days calling the media and getting them up to speed. No one thought this story important enough to cover. The Los Angeles Times building was in walking distance. This is an amazing news blackout.
Good report Doug. Thanks for the follow-up.
And he responded, "That is absolutely false."
Maybe it was the wrong question. Maybe, "Did your client file a fraudulent FEC report dated July 30, 2001?"
Maybe Kendall didn't allow his client to file a fraudulent FEC report. Maybe she did it w/o consulting him, or he told her not to, and she did it anyway.
Or maybe he's just a liar. Yeah, I'm going with that one.
HA!
BTTT
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PETER F. PAUL,
Plaintiff, Appellant, and Second Respondent,
vs.
WILLIAM JEFFERSON CLINTON,
Defendant,
HILLARY RODHAM CLINTON AND HILLARY RODHAM CLINTON FOR US SENATE COMMITTEE, INC.,
Defendants and Second Appellants, and
DAVID ROSEN,
Defendant and Respondent. ____________________________________ |
|
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
|
2d Civ. No. B178077
Superior Court, Case No. BC 304174
(Honorable Aurelio N. Munoz, Judge)
|
APPEAL FROM THE JUDGMENT OF
THE SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES
THE HONORABLE AURELIO N. MUNOZ, JUDGE PRESIDING
____________________________________________________________
REPLY BRIEF OF SECOND APPELLANTS
HILLARY RODHAM CLINTON AND
HILLARY RODHAM CLINTON
FOR US SENATE COMMITTEE, INC.
Service on Bill Lockyer, Attorney General for the State of California, pursuant to California Business & Professions Code Section 17209
(Counsel Appear on Next Page)
WILLIAMS & CONNOLLY LLP
DAVID E. KENDALL (Admitted Pro Hac Vice)
SUZANNE H. WOODS (State Bar No. 177853)
CHRISTIAN A. WEIDEMAN (State Bar No. 226339)
725 Twelfth Street, N.W.
Washington, D.C. 20005
(202) 434-5000
Attorneys for Defendant and Second Appellant
Hillary Rodham Clinton
RYAN, PHILLIPS, UTRECHT & MACKINNON
CAROLYN UTRECHT (Admitted Pro Hac Vice)
1133 Connecticut Avenue, N.W., Suite 300
Washington, D.C. 20036
(202) 293-1177
Attorneys for Defendant and Second Appellant
Hillary Rodham Clinton for US Senate Committee, Inc.
JAN B. NORMAN (State Bar No. 117117)
1000 Wilshire Boulevard, Suite 600
Los Angeles, California 90017-5624
(213) 629-9066
Attorney for Defendants and Second Appellants
Hillary Rodham Clinton and
Hillary Rodham Clinton for US Senate Committee, Inc.
INTRODUCTION
On September 8, 2004, the Los Angeles Superior Court (lower court) improperly denied Appellants motion to strike (Motion) on procedural grounds.[1] Plaintiff argues at length that the lower courts ruling was correct because the Motion was untimely filed.[2] The lower court, however, never reached this issue. It never decided whether to exercise its discretion and allow the late filing of the Motion. Therefore, Plaintiffs arguments are little more than a distraction.
The central issue of this appeal and the sole grounds for the lower courts decision is whether Appellants failed to notice a timely hearing. The lower courts ruling on this issue was incorrect for two reasons. First, it measured the timeliness of the hearing in relation to the date the motion was filed, not when it was served. This violated the plain language of the anti-SLAPP statute. Second, the lower court incorrectly concluded that the docket conditions of the court did not require a later hearing. If the circumstances of this case i.e., the absence of the trial judge due to medical reasons do not require a later hearing, then the statutory provision would never apply. This cannot be correct. For both reasons, the lower court erred in denying Appellants Motion.
Other than the procedural issues, Appellants Motion is identical in all material respects to the successful motion to strike filed by co-defendant David Rosen. In fact, Plaintiff cannot identify a single substantive difference between the two motions. The lower court presumably granted Mr. Rosens motion because Plaintiffs claims were brought primarily to chill the valid exercise of the constitutional rights of freedom of speech. (Cal. Civ. Proc. Code § 425.16(a) (West 2004)). It would undermine the purpose of the anti-SLAPP statute to allow the exact same claims to proceed against Appellants. Therefore, Appellants respectfully request that the Court reverse the lower courts decision and direct the lower court to grant Appellants Motion to Strike.
Argument
I. Plaintiffs Brief Misconstrues the Lower Courts Order.
Plaintiff contends that the lower court denied Appellants Motion to Strike in part because it was untimely filed. This is incorrect. The lower court denied Appellants Motion to Strike for one and only one reason. It held that Appellants had failed to notice a timely hearing, which required dismissal of the Motion. (CT at 629; RT at 6). As a result, a large portion of Plaintiffs brief is irrelevant, distracting, and can be disregarded.
On September 8, 2004, the lower court denied Appellants Motion to Strike in a one-paragraph order. (CT at 629; RT at 6 ). The order stated that Appellants noticed a hearing date more than 30 days after the filing. . . . Failing to set the motion for hearing within 30 days of its filing mandates dismissal of the motion. (Id. (emphasis added)). This was the sole ground for the lower courts decision.
The order also noted that the Motion was filed more than sixty days after service of the complaint. The anti-SLAPP statute grants the court discretion to accept or reject an untimely-filed motion to strike. (See Cal. Civ. Proc. Code § 425.16(f) (West 2004)). However, as the full text of the order demonstrates, the lower court did not exercise this discretion:
The motion to strike is denied. Defendants have waited for more than 4 months after being served with the complaint and once they chose to file their motion, they set it for hearing more than 30 days after the filing. (See CCP §425.16) Failing to set the motion for hearing within 30 days of its filing mandates dismissal of the motion. (Decker v. U.D. Registry Inc. (2003) 105 Cal.App.4th 1382, 1388.) Thus even if the court were inclined to permit the late filing of the motion, the court could not grant the relief requested. As an aside, counsel should be aware of the prohibition against citing non-published cases as authority. (See Cal. Rules of Court, Rule 977.)
(CT at 629; RT at 6). Instead, the lower court stated that it lacked discretion and it could not grant the relief requested. (Id.). This is inconsistent with Plaintiffs position that the lower court exercised its discretion and denied the Motion as untimely-filed. The lower court denied the motion solely on jurisdictional grounds because Appellants allegedly failed to set the motion for hearing within 30 days of its filing. (Id.).
In his brief, Plaintiff makes no attempt to explain how the language of the lower courts order supports his position. He simply states that the lower court rejected the motion as untimely.[3] (RB at 1, 24). Then, he summarily declares that there is only one key issue in this case: [D]id the lower court abuse its discretion in declining to consider the untimely motion on the merits? (RB at 1). Plaintiff argues that the court rightfully denied the Motion because he has supposedly endured substantial delay and has been prejudiced as a result.[4] (RB at 6-7).
Plaintiffs entire argument is a classic straw man. The lower court did not deny Appellants Motion to Strike because it was untimely filed. (CT at 629; RT at 6). Therefore, the lower courts alleged exercise of its discretion is not an issue in this appeal, much less the one key issue. (RB at 1).
II. The Lower Court Erred in Holding that Appellants Failed To Notice a Timely Hearing.
The real key issue in this appeal is whether the lower court erred in holding that Appellants violated the anti-SLAPP statute by noticing an untimely hearing. (CT at 629; RT at 6). As discussed in Appellants Opening Brief, the lower court misinterpreted California Code of Civil Procedure Section 425.16(f) and made two critical, independent errors. Therefore, its decision should be reversed.
First, the lower court held that the hearing date was improper because it was noticed to be held more than 30 days after the filing of the Motion. (Id. (emphasis added)). The plain language of Section 425.16(f), however, refers to the date of service, not to the date of filing.[5] (Cal. Civ. Proc. Code § 425.16(f) (West 2004)). Appellants served the Motion to Strike on August 11, 2004, and they noticed a hearing for September 8, 2004, less than thirty days later. (CT at 582 n.2) Therefore, Appellants satisfied the requirements of Section 425.16(f).
Plaintiff argues that the date of service was not August 11, 2004, but rather July 22, 2004 because Appellants counsel executed a sworn proof of service stating that the Motion was served on that date. (RB at 21). However, it is undisputed that Appellants counsel inadvertently failed to serve the Motion on July 22, 2004. (CT at 624). Plaintiff acknowledges that he did not receive the motion and was unaware of it until a August 9, 2004 letter. (RB at 21). Moreover, none of the five parties who were supposedly served on July 22, 2004 received a copy of the Motion. (CT at 623-24). When Appellants counsel learned of the mistake on August 10, 2004, she quickly corrected it. (CT at 623-24). She served the Motion the next day, August 11, 2004. (CT at 624). This was the true date of service for the sake of Section 425.16(f).
Plaintiff nonetheless contends that the lower courts ruling should be upheld because the situation is muddy and very confused.[6] (RB at 22). Alternatively, he claims it would be unfair to resuscitate an already untimely motion. (Id.). These arguments are circular and beside the point. The anti-SLAPP statute must be construed according to the plain meaning of its terms. (Decker v. U.D. Registry, Inc. (2003) 105 Cal. App. 4th 1382, 1388, 129 Cal. Rptr. 2d 892, 895). The statute states that a motion to strike must be noticed for hearing not more than 30 days after service. (Cal. Civ. Proc. Code § 425.16(f) (West 2004)). Here, the Motion was first served on August 11, 2004 and the hearing was noticed for September 8, 2004, twenty-eight days later. Therefore, Appellants satisfied the plain terms of the statute, even if they did so by mistake.
The lower court made a second independent error in concluding that the courts docket conditions did not require a later hearing. An earlier date was impossible because Judge Munoz was on medical leave undergoing back surgery. (CT at 623; RT at 2). This case is nothing like the only two California decisions that previously have interpreted this provision.[7] (Fair Political Practices Commn v. Am. Civil Rights Coalition, Inc. (2004) 121 Cal. App. 4th 1171, 1175-76, 18 Cal. Rptr. 3d 157, 160; Decker, 105 Cal. App. 4th at 1387-88, 129 Cal. Rptr. 2d at 895). In those cases, the litigants scheduled an untimely hearing to accommodate their own schedules. (Id.) Here, Appellants relied solely on Judge Munozs availability i.e., they noticed a hearing for the first available date after he was scheduled to return. (CT at 623; RT at 2).
Nonetheless, Plaintiff argues that Appellants had two options: (1) they supposedly could have noticed a hearing before the temporary judge who was sitting in Judge Munozs absence, or (2) they could have requested a continuance. (RB at 23). Plaintiffs first option suggests that Section 425.16(f) requires a defendant, under certain circumstances, to entrust a complicated and dispositive motion to strike to a temporary judge who is unfamiliar with case. This is inconsistent with the express purpose of the anti-SLAPP statute i.e., to curb the disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech. (Cal. Civ. Proc. Code § 425.16(a) (West 2004)). And, it is an unduly penal interpretation of the statute. (Decker, 105 Cal. App. 4th at 1390, 129 Cal. Rptr. 2d at 897 (Any ambiguity in the anti-SLAPP statute must be resolved in favor of a resolution on the merits.)).
Plaintiffs second option is even less persuasive. Litigants can always request a continuance, regardless of the courts docket conditions. If the circumstances in this case did not justify a later hearing, it is hard to imagine a scenario that would. Thus, the lower courts ruling and Plaintiffs reasoning would effectively nullify the provision of the anti-SLAPP statute that allows for a later hearing when the docket conditions of the court require it. This would be contrary to the law. (See CalBeach Advocates v. City of Solana Beach (2002) 103 Cal. App. 4th 529, 537, 127 Cal. Rptr. 2d 1, 6 (Courts must avoid statutory interpretations that nullify other provisions of the same statute.)). For these reasons, Plaintiffs arguments should be rejected, and we respectfully submit that the lower courts ruling should be reversed.
III. The Lower Court Should Be Directed To Grant Appellants Motion To Strike Because the Motion Is Identical on the Merits to the Successful Motion Filed by David Rosen.
Once the procedural issues are resolved, see supra Sections I & II, Appellants Motion to Strike is identical on the merits to the motion filed by Defendant David Rosen. The lower court granted Mr. Rosens motion on July 14, 2004. (CT at 539-40). Therefore, Appellants Motion to Strike should also be granted.
Plaintiff disagrees and argues that [t]he two motions cannot so easily be compared. (RB at 19). Plaintiff does not dispute the extensive similarities between the two motions.[8] Instead, he relies entirely upon two non-substantive distinctions: (1) Mr. Rosens motion was timely filed, and (2) the parties to the two motions are different. (RB at 19). Neither is persuasive.
The first distinction does not address the underlying merits of the motions. Moreover, it should be summarily rejected because Plaintiff has suffered no prejudice from Appellants alleged three-month delay in filing their Motion to Strike. See supra note 4. In fact, Plaintiff is currently seeking a six-month stay in the case to obtain substitute counsel. (See Orfanedes Letter). It borders on the absurd to complain about the hardships of delay at the same time Plaintiff is seeking to postpone the case for half a year.
The second alleged distinction that the parties are different is illusory and should also be rejected. Plaintiffs claims against Appellants are premised almost entirely upon the actions of Mr. Rosen. (See, e.g., CT at 14-15, 39, 588-90). Plaintiffs theory of liability assumes that Mr. Rosen was acting on behalf of Appellants and therefore his conduct is attributable to them. (Id.). The Complaint does not allege any direct actions by Senator Clinton or the Committee that support his claims.[9]
Similarly, Plaintiffs brief fails to describe any specific conduct by Appellants that distinguishes them from Mr. Rosen. (RB at 25-32). Plaintiff argues, in general terms, that his affidavit clearly and unambiguously sets forth Appellants liability.[10] (RB at 30). However, he fails to identify anything in his affidavit that alleges specific, direct conduct by Appellants. Like the Complaint, the affidavit merely attributes the conduct of Mr. Rosen to Appellants. Therefore, if Plaintiff cannot establish a probability of success on the merits against Mr. Rosen, he cannot do so against Appellants.
Because Plaintiff cannot identify any legitimate differences between Appellants Motion and Mr. Rosens motion, he instead recites the same flawed legal arguments that he made in opposition to Mr. Rosens motion. (See, e.g., RB at 26-28). The lower court previously rejected those arguments, and Plaintiff has filed an appeal. (RB at 28 n.11).
Regardless of how the Court rules on those issues,[11] the outcome of Appellants Motion and Mr. Rosens motion should be same. There is no substantive difference between the two motions. There is no sound reason to dismiss Plaintiffs claims against Mr. Rosen but allow them to proceed against Appellants. (See Cal. Civ. Proc. Code § 425.16(a) (West 2004) (noting that the purpose of the anti-SLAPP statute is to address the disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances)).
CONCLUSION
For the foregoing reasons, Appellants respectfully request that the Court: (1) reverse the lower courts September 8, 2004 order, which denied Appellants motion to strike Plaintiffs Fifth and Fourteenth Causes of Action on procedural grounds, and (2) order the lower court to grant Appellants Motion to Strike and enter judgment on counts five and fourteen in favor of Appellants.
April 12, 2005
|
WILLIAMS & CONNOLLY LLP
By: DAVID E. KENDALL
Attorneys for Defendant and Second Appellant HILLARY RODHAM CLINTON
|
April 12, 2005
|
RYAN, PHILLIPS, UTRECHT
By: CAROLYN UTRECHT
Attorneys for Defendant and Second Appellant HILLARY RODHAM CLINTON FOR U.S. SENATE COMMITTEE, INC.
|
April 12, 2005 |
JAN B. NORMAN
By: JAN B. NORMAN
Attorney for Defendants and Second Appellants HILLARY RODHAM CLINTON and HILLARY RODHAM CLINTON FOR U.S. SENATE COMMITTEE, INC. |
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Reply Brief of Second Appellants Hillary Rodham Clinton and Hillary Rodham Clinton for U.S. Senate Committee, Inc. is in compliance with the requirements of California Rules of Court, Rule 14. The brief contains 3,072 words.
April 12, 2005 _________________________
Jan B. Norman
TABLE OF CONTENTS
I.......... Plaintiff's Brief Misconstrues the Lower Court's Order................. 2
II......... The Lower Court Erred in Holding that Appellants Failed
To Notice a Timely Hearing............................................................... 5
III....... The Lower Court Should Be Directed To Grant Appellants'
Motion To Strike Because the Motion Is Identical on the
Merits to the Successful Motion Filed by David Rosen.................. 9
CONCLUSION.. 12
CERTIFICATE OF COMPLIANCE.. 14
TABLE OF AUTHORITIES
State Cases
CalBeach Advocates v. City of Solana Beach (2002)
........... 103 Cal. App. 4th 529, 127 Cal. Rptr. 2d 1......................................... 8-9
Decker v. U.D. Registry, Inc. (2003)
105 Cal. App. 4th 1382, 129 Cal. Rptr. 2d 892 ................................ 7-8
Fair Political Practices Commn v. Am. Civil Rights Coalition, Inc. (2004)
121 Cal. App. 4th 1171, 18 Cal. Rptr. 3d 157........................................ 7
Varian Med. Sys., Inc. v. Delfino (2005)
........... 35 Cal. 4th 180, 25 Cal. Rptr. 3d 298...................................................... 4
State Statutes
Cal. Civ. Proc. Code § 425.16(a) ............................................................. 2, 8, 12
Cal. Civ. Proc. Code § 425.16(f) ................................................................ 3, 5, 7
[1] Defendants and Second Appellants Hillary Rodham Clinton and Hillary Rodham Clinton for US Senate Committee, Inc. (the Committee) are collectively referred to as Appellants. Plaintiff Peter F. Paul is referred to as Plaintiff.
[2] Plaintiffs March 16, 2005 brief in this appeal is cited as RB.
[3] Plaintiff attacks Appellants for not addressing the alleged untimely filing of the Motion in their Opening Brief: [C]onspicuously absent from the brief is any mention of the lower courts finding to this effect. (RB at 14). There is good reason. The lower court did not rule on this issue.
[4] Plaintiffs objections to delay are belied by his own actions. Plaintiff complains that Appellants Motion has had the effect of staying all discovery in this action pending the outcome of this appeal, preventing Paul from gathering evidence he needs to prove his claims. (RB at 18). However, Plaintiff ignores the separate appeal that he filed in this case before Appellants filed their appeal which had the same effect of staying all proceedings in the lower court. (Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 191-93, 25 Cal. Rptr. 3d 298, 307-09). In addition, Plaintiff currently is seeking a six-month stay in the lower court to obtain alternate counsel. (See Letter from Paul F. Orfanedes to All Counsel of Record (Orfanedes Letter), March 31, 2005, attached as Exhibit A to Appellants Motion to Augment the Record, filed concurrently). Thus, Plaintiffs complaints about delay i.e., that memories will fade, witnesses may become unavailable, and documents will disappear lack credibility. (RB at 18). In fact, the lower court sharply rejected these arguments in connection to a different motion approximately eight months ago: All of the events occurred in 2000. Thus the witness memory loss is almost a joke. (See Order, September 23, 2004, in the matter entitled Paul v. Clinton, et al., Case No. BC 304174, attached as Exhibit B to Appellants Motion to Augment the Record, filed concurrently).
[5] Section 425.16(f) states that a motion to strike shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing. (Cal. Civ. Proc. Code § 425.16(f) (West 2004) (emphasis added)).
[6] Any confusion is the result of Plaintiffs semantics. The facts are simple and straightforward. Appellants counsel believed that she served the Motion to Strike on July 22, 2004. (RB at 623). However, on August 10, 2004, she learned that none of the five parties she had intended to serve received a copy of the Motion. (RB at 624). She concluded that she inadvertently had failed to serve the Motion. (Id.). She served the Motion the next day. (Id.).
[7] Decker was the only case cited by the lower court. (CT at 629).
[8] The two motions challenge the same two causes of action, counts five and fourteen of the Complaint. (CT at 542). And both motions rely upon the same two legal arguments i.e., that Plaintiffs claims arise from acts in furtherance of Defendants right of free speech under the United States or California Constitution in connection with a public issue, and that Plaintiff has failed to demonstrate a probability of success on the merits. (CT at 544, 601).
[9] The Complaint alleges that Senator Clinton personally: (1) wrote letters and made a few phone calls to Plaintiff expressing gratitude, (CT at 24, 26, 28); (2) called Gary Smith and persuaded him to lower his production fee by $50,000 (CT at 21); and (3) declined to intervene a second time with Mr. Smith. (CT at 22). As to the Committee, Plaintiff alleges two statements by the Committees spokesman, Mr. Howard Wolfson. (CT at 26-27). The Complaint fails to allege any other direct conduct by Appellants.
[10] On February 24, 2005, the Court granted Plaintiffs motion to augment the record and include his 15-page affidavit in the Clerks Transcript. (See RB at 3 n.4). Appellants respectfully refer the Court to the contents of the affidavit in its entirety.
[11] Appellants submit that that the lower courts decision granting Mr. Rosens motion to strike was correct for the reasons presented by Mr. Rosen in his pleadings. (See CT at 481-92, 521-34.) In their Motion to Strike, Appellants explicitly adopted all the arguments set forth by Mr. Rosen in the pleadings supporting his special motion to strike. (CT at 544).
Appreciate the job you and the others are doing. Thanks so much.
My pleasure. These things can sometimes be a lot of fun, particularly when a big group gets together. It's nice to put faces with screen names.
Thanks for all you guys did. The MSM in this country is not up to Pravda's old speed. Sickening (about the non-coverage). Most sickening is that if this were Karl Rove and he were appearing in court for a parking ticket, it would be above the fold in every paper in the country.
As our noted legal scholar, it might be interesting if you prepared an indictment of Hillary online with a FReeper grand jury.
BUMP BUMP BUMP
28. David Kendall (Williams & Connolly). Litigator extraordinaire Kendall is best known for his successful defense of President Bill Clinton, and Clinton-era scandals continue to bring him business. This spring Kendall was back in federal court defending Hillary Rodham Clinton against a defamation-of-character suit filed by Gennifer Flowers. But those cases are rarer and rarer for the soft-spoken Indiana native, who spends most of his billable hours these days combatting illegal downloading and music transfers.
Thanks for the ping, Bb!
doug -- I couldn't make it, so I sent my lawyer....
;o)
Great work!
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