Dissent 46
March 6, 2000
SUIN’ SAFARI!
by
Chunk Wheeler [Roy Bauer]
Carol Sobel
February 29: After lunch, Carol,
a friend of hers, Wendy, and I headed for Judge Michael Brenner’s courtroom in
Santa Ana. Our hearing was set for 1:30.
Mathur
By 2:45, the court had moved on to
something amusingly referred to as “Green Burrito litigation.” Corfield had had
enough; he went outside to wax his surfboard.
[Corfield projects
cockiness during Carol’s remarks. Now, someone whispers, “Surf’s up!”]
CORFIELD: There’s an
important distinction. The defendant’s counsel refers to defamation(?), but our
complaint concerns, not defamation, but invasion of privacy. Mathur is suing
because the defendant (and Mr. B) stole
documents from a file…Bauer and Mr. B stole a letter that is privileged;
they stole and published something that is confidential. The issue of truth or
falsity—to which defendant’s counsel refers—is a “red herring.”
BRENNER: “They” [the defendants] stole documents,
you say. But there’s no evidence of that
(in your papers). You don’t show how this defendant got these papers.
[NOTE: They’re
referring to a letter of reprimand (of Mathur), which I had reproduced in Dissent (in January of 1999), that,
evidently, is part of Mathur’s personnel file. But, of course, that I had
possession of a copy of that document does not suggest that I, or anyone else,
stole it from Mathur’s file.]
CORFIELD: (Says something;
not much; I took no notes. Corfield describes Mathur as the “president of a
university.”)
BRENNER: This
defendant [Bauer] got the papers (the letter of reprimand) somehow…How Mathur
performed his job in the past is newsworthy.
SOBEL: Can I
respond? [Sobel begins to discuss Schulmann…]
[At this point,
Wendy briefly borrows my pen and tablet, and so my notes have a 2 minute gap.]
BRENNER: (He reads
aloud from Schulmann.)
SOBEL: Carol directs
Brenner to a section of Schulmann. The lawyers argue about the “standard” that
must be met by the person who brings the suit. The judge favors Carol’s
interpretation.
BRENNER: Brenner
opines that the Dissent stories are
newsworthy. Further, there’s “no showing” that the reports were untruthful
“that I can see.” There “is no showing” that, in the case of this defendant,
the papers were unlawfully obtained. The evidence doesn’t seem to be here.
CORFIELD: Look at
Schulmann. It isn’t about theft (?).
BRENNER: You keep
saying (that the defendant engaged in theft). But there’s no evidence.
CORFIELD: We don’t
have to prove that there was theft.
He refers to 425.16 [California’s anti-SLAPP statute] and the Supreme Court.
BRENNER:
…Brenner asks (I think) whether there is evidence that the defendants (Bauer
and Mr. B) conspired…
CORFIELD: [Corfield
looks as though someone has stolen his Woody.] C sputters something about a
“leave to amend.”(?)
[Apparently, this
“leave to amend” business is a desperate move on C’s part; Brenner responds as
though Corfield has committed a faux pas.
He indicates that he has made his ruling and that’s that.]
* * * * *
Well, we left the courtroom, and we
were pretty damned pleased. Jan, who was very impressed by Carol’s performance,
stepped back from her and intoned: “I’m not worthy.” Others squealed or
laughed. We wandered down to the hall to the elevators, talking and joking.
Dissent 47
|
| Mathur |
Dissent 47
March 20, 2000
MATHUR IN A LATHER: A SLAPP-SUIT COMEDY
By Big Bill B [Roy Bauer]
Background: on the 29th of February, Judge Michael Brenner of OC Superior Court granted a motion to dismiss Raghu Mathur’s lawsuit against me. Mathur had accused me of invading his privacy by reporting (in the January 11 & 19, 1999, issues of Dissent) his violations of a federal law that, ironically, protects the privacy of students. Brenner had ruled that the reports were “newsworthy” and that I should be afforded the protection of the 1st Amendment and California’s anti-SLAPP statute. Two weeks later, on the 14th of March, Judge McEachen, sitting in for Brenner, issued a ruling on Terry Burgess’ motion to dismiss (Burgess had also been named in the suit). Terry had been accused of conspiring with me to break into Mathur’s personnel file, thereby securing a copy of Larios’ reprimand of Mathur plus a legal opinion from the district’s attorney, Spencer Covert. According to Covert’s opinion, Mathur had indeed violated the federal law and district policy by distributing a student’s transcripts (in a failed attempt to discredit an administrator).
 |
| Mathur |
The misdirected philosopher:
MARCH 14: Addled by hypoglycemia and still hobbling from a nasty fall
in the shower, I entered the big downtown court building, and, as usual, I
didn’t get past the metal detector. At least they didn’t make me take off my
shoes and belt, as they once did in the federal court building in LA!
Eventually, they let me in, and I headed upstairs to the 3rd floor, but I couldn’t find the courtroom
anywhere. I consulted a directory: Brenner was on the 5th floor, not the 3rd! I headed up, arriving fifteen
minutes late, at about 1:45. Entering courtroom 112, I beheld a stranger on the
bench: a Judge David T. McEachen. Evidently, McEachen had taken over for
Brenner for the day.
As I sat down next to Wendy, a pissed off lawyer was addressing the
court about a company named “Paradigm.” “Paradigm took this money!” said
someone, according to the lawyer. When the lawyer ceased yammering, Judge
McEachen turned to the other guy, smiled benevolently, and said: “It’s your turn.”
Meanwhile, Wendy wrote me a note that said that we’re number 15, and
McEachen’s now on number 9, and it shouldn’t take him long to get to us, ‘cuz
most people didn’t file their 378s. —Lawyers talk that way.
The pissed off lawyer—a Mr. Burger—was fumin’ again, referring to
another judge as “Black Jack Ryan,” which evoked laughter among the lawyers and
bemusement or irritation from McEachen. The other guy responded with: “Mr.
Burger will strike me if I’m wrong,” but he was wrong (I think), and Burger
didn’t lay a finger on ‘im.
The next case concerned “Mass
Mutual.” “You got the tentative,” said McEachen to the attorneys.
 |
| Bauer |
The tentative ruling:
Maybe they got it, maybe they
didn’t. Wendy wrote me a note, saying that there was a tentative ruling in our case, too , but she was unable to
secure the damned thing. The day before, we learned of its existence but were
told that “Brenner doesn’t issue tentatives.” It turns out that Corfield and
his partner—Mr. Rovell—were in the same boat as us, the HMS Clueless.
“Mass Mutual is taking it out of her
hide,” said one lawyer, over on the right. The left lawyer, an Aussie in an
ill-fitting suit, looked from my perspective (directly behind him) like he was
standing at a urinal. The first guy—in his early 60s and dressed for a trip to
Palm Springs—said he was “emotional” about the case. “I probably screwed up,”
he confessed. They discussed the concept of “surprise.” “Surprise is not
enough,” said someone.
I had no idea what they were talking about.
Suddenly lapsing into abominable incorrectness, someone spoke of the
“lady lawyer up in Idaho,” but no one seemed to care. The Palm Springs guy seemed
upset about the tentative judgment, which, he said, “is unjust in the extreme.”
Then the Aussie stopped urinating, zipped up, and referred to the “shenanigans”
of the Palm Springer, who, in response, pivoted slowly on his tasseled golf
shoes with affected indignation. I looked over at the bailiff, who affected
wariness, and then over at the court reporter, who affected consciousness. Blah
blah blah, said the judge. My eyes glazed over. I lapsed into unconsciousness.
Love never had a chance:
Right about then, Wendy shoved at me
and ordered me to get the hell out of the
way. Apparently, it was showtime! I gave her and Diana G, the other
attorney, a wide berth as they filed past me and then through the little
gate—into the “inner sanctum,” as Wendy calls it. This time, Brian Wilson
(Corfield) was benched, replaced by his partner Mike Love (Mr. Rovell).
Love never had a chance.
McEachen, wasting no time, referred
to the tentative ruling—the one we had not yet seen—as we studied his face for
clues. He announced that our motion to strike—i.e., our motion to have Mathur’s
suit dismissed—had been granted, at
least in the tentative ruling, by Brenner. (Whoopee!) According to
Brenner/McEachen, the plaintiff—that’s Mathur—had not met “his burden” of
showing that he would probably prevail in court. (According to the anti-SLAPP
statute, the plaintiff must show that he will likely win, or the suit is thrown
out right at the start, and the defendant gets attorneys’ fees.) He had accused
Terry and me of stealing “private” documents (a reprimand and a legal opinion)
from Mathur’s personnel file, but, said the judge, there was no indication of where the documents in question had actually
come from. (They sure as hell didn’t come from Mathur’s personnel file!)
Last month, in her response (on my behalf) to Mathur’s complaint, Carol
Sobel (my attorney) had argued that the Dissent articles about Mathur and the
student’s transcripts were “newsworthy.” According to the new tentative, the
plaintiff again hadn’t “controverted” that claim. Neither had he controverted
the claim that Mathur is a “public official.” (I think Brenner even noted that,
in the case of one document—the legal opinion by Spencer Covert—there is no
evidence that I even received it.
Maybe that was because, though the Dissent had referred to Covert’s opinion, it
had never actually quoted from it.)
The upshot: Slam dunkage.
The judge closed with an analysis:
“same facts, same result.” He was saying, I think, that Mathur’s opposition (his filed response to Terry’s
motion to strike) simply repeated the failings of Mathur’s earlier opposition
to my motion to strike. Ouch.
The Rovel grovel: a malarkey
switcheroo
Back on the 29th, Carol had
argued that the anti-SLAPP statute, which is designed to counter the chilling
effect of lawsuits against those who speak out against the powerful, applies in
this case, and we had prevailed on that basis. The two issues of Dissent in
question (January 11 and 19, 1999) reported that Mathur violated a federal
law—FERPA—plus district policy. (Such, again, was the opinion of the district’s
own attorney, Spencer Covert.) Essentially, Mathur’s lawsuit complaint was that
I had violated his privacy by revealing
this fact, which, he argued, was of no public interest.
When in doubt, reverse gears! Now
Mathur’s lawyers argued, not that I had revealed a fact, but that the fact was no
fact. That is, though Mathur had indeed disseminated a student’s
transcripts, that didn’t mean he violated FERPA (and district policy). I think
the idea was that, since Mathur’s dissemination occurred “internal” to the
college, it was not an illegal
dissemination. In effect, Rovell and Co. were abandoning their original
“privacy” malarkey in favor of “defamation” malarkey.
Rovell yammered a bit about the anti-SLAPP statute and then focussed on
the notorious January 13 (1999) “misdirected fax.” That was Burgess’ fax of the
Covert opinion, which had been sent, accidentally, to the District! Evidently,
on the 21st of January, Chancellor Sampson wrote Burgess
concerning that fax, and Burgess responded with a letter dated January 29.
Rovell now argued that, in the January 29 letter, in a key line, Burgess made
an admission that shows that his more recent “declaration” (a sworn statement
submitted to the court) is perjurious!
(At that moment, Wendy, showing admirable self-control, refrained from socking
Rovell in the jaw. I was impressed.)
Rovell also referred to a
declaration, in which an instructor describes the widespread availability of
the Covert opinion by 1996 and its location in the academic senate’s files as
part of the public record. Rovell rejected the entire declaration, arguing that
its author’s opinion that these academic senate files are public is “entirely
conclusory,” i.e., not supported by the facts.
The Dissent reports were
“offensive,” said Rovell, who began to shine with nervousness. He seemed to say
that the Covert opinion was a matter of attorney/client confidentiality.
(Rovell failed to notice that the opinion was not written for Mathur, but for the district, which had
requested a legal opinion regarding the fellow’s actions.) Clearly, said
Rovell, the reporting of the Covert letter (and Larios’ reprimand of Mathur)
would be “offensive and objectionable to any reasonable person.”
“Lastly,” said Rovell, we must
address the matter of “newsworthiness,” regarding which there are “six
elements.” One is the “social value” of the facts. Covert’s opinion
notwithstanding, Mathur never violated federal law, said Rovell. “How can a
false fact have a social value?” An instructor’s personnel file, he said, is
“inviolate.” We’re talking about attorney/client documents, he said,
inexplicably.
At this point, the court reporter stopped Rovell, asking him to slow
down. “Go ahead—slower,” said
McEachen. Rovell, glistening with sweat, slowed down, but he kept shinin’.
|
| Carol Sobel |
Newsworthiness:
that’s the key
It was Diana’s turn. “Newsworthiness,” she said, isn’t the “last
issue,” as Rovell suggested; it’s the “first.” Brenner had decided two weeks
ago that the Dissent reports were “newsworthy,” that they had reported matters
of “public concern.” How a public official performs his job—Mathur had been the
Chair of the School of Physical Sciences at the time of his misconduct—is
newsworthy.
Diana referred to Burgess’ January 29 letter. If one reads Burgess’
comment in context, she said, it is clear that he does not acknowledge having ultimately sent the fax to Bauer. (In fact,
I never received this document from Burgess.)
Actually, it makes no difference,
said Diana, who provided Bauer with the Covert letter, because the report of
Mathur’s violations of FERPA were newsworthy,
and that’s the key. Still, there’s no evidence that Burgess was the source.
Diana referred to testimony that
Covert’s legal opinion was “in circulation” around campus already in 1996. She referred to a declaration by
an individual who had sent a letter to trustees in September of 1997; the
letter included a copy of the Covert opinion. Clearly, Bauer could have
received the Covert letter from many others besides Burgess.
Diana noted that the plaintiff’s
attorney is ignoring the three cases she cited in her motion, which delineate
which publications constitute a violation of privacy. A misdirected fax, she
says, doesn’t cut it.
Diana reminded the court that it had
already ruled that the facts reported in the two issues of Dissent were
“newsworthy,” and so the plaintiff doesn’t have a leg to stand on. There is
absolutely no evidence, she added, that Burgess (or Burgess and Bauer) “stole”
documents from Mathur’s personnel file.
The bottom line: the president of
IVC, when the head of an academic department, violated district policy and
federal law, said Diana. That is a matter of public concern, and that’s what Dissent reported. Further,
“plaintiff has not and cannot dispute that Mathur is a public official.”
Therefore, he cannot show, as he must, that he will probably prevail in this
suit.
Yogi Berra:
McEachen then gave Rovell an
opportunity to provide a brief response. Brenner’s opinion of the 29th was “very unfortunate,” said Rovell. There’s
an “abundance” of new facts that show, he added, that Mathur never violated the
law. Diana’s point about Burgess’ January 29 letter relied on a “play on
words,” said Rovell. Facts “can be true or false.” The facts reported in
Dissent are false. Mathur does not deny that, internally, he sent around these
transcripts, but that’s not illegal. Blah blah blah.
Finally, the judge spoke. He said
that he had read Brenner’s notes. And then: “I’m granting the motion. To quote
the esteemed Yogi Berra, it’s ‘déjà vu
all over again.’” BOOM!
Out in the hallway, we yucked it up
pretty good. When Corfield and Rovell approached us with outstretched hands, we
shook ‘em. “If Brenner were here, he would have denied the motion,” said surfer
dude Corfield. He was kidding, I guess.
Diana, still hangin’ ten, called
Carol with her cell phone. “Hey Carol, we’re done. We won,” she said. Wendy
turned to me: “Yeah, they got thumped.”
We walked with Diana downstairs. Out
front, her ride drove up. She said: “Next, fees.”
Yeah. —BBB
Dissent 46
March 6, 2000
Dissent 46
March 6, 2000
FROGGY WENT ACOURTIN’
Anony Mouse [a student, Jules B]
Though a long time student of IVC, I
must confess that, until recently, I was largely oblivious to the district’s
political strife. The February 29th court
date wherein President Mathur and Professor Bauer would, through legal counsel,
be allowed to argue their conflicting viewpoints, seemed like the perfect
opportunity for me to learn more about it. And so I went.
The hearing started with Professor
Bauer’s attorney, Carol Sobel, making her case. As she spoke, president
Mathur’s lawyer, a Mr. Corfield, seemed uncomfortable. He stumbled left a bit,
stumbled right, swayed slightly, and finally assumed a slouch that seemed to
indicate an enfeebled or drunken state, but his problem, as it turned out, lay
elsewhere.
After Sobel made her initial statement to the court, Corfield, suddenly
emerging from his squirm ‘n slouch, offered a response, which was shockingly
loud and accusatory. He announced that Professor Bauer was a thief—that he had
stolen into Mathur’s personnel file.
I was taken aback. Was this a criminal trial? –No, it wasn’t. Just
then, Judge Brenner noted that Corfield had offered no evidence for this
“thievery” claim.
Corfield turned to plan B. He cited a case, which, he claimed, lowered
his burden from having to show “clear and convincing evidence” that he would
“probably prevail” in court, to just “stating his claim”. I think he cited
Briggs. Interesting, I thought. Did Corfield think that he would not “probably
prevail”? If his case against Professor
Bauer was so strong, then why didn’t he respond to Sobel’s motion to dismiss by
showing the court evidence that he would indeed probably prevail?
Sobel then made her move. Corfield had cited the middle of the Briggs
opinion; but, according to Sobel (as I recall), the Briggs ruling was actually
in line with Sobel’s earlier comments. The court confirmed Sobel’s assertion
and, soon thereafter, dismissed President Mathur’s lawsuit against Professor
Bauer.
No wonder Corfield had been squirming so. He didn’t have a leg to stand
on. --AM
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