SUIN’ SAFARI!
by Chunk Wheeler [aka Roy Bauer]Dissent 46, 3/6/00
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.
We entered the building at about 1:20 and found our way to the elevators, where dozens of besuited lawyers stood around like hamsters, nervously eyeing the elevator doors while intermittently consulting wrist-watches. Even Carol seemed worried. Someone murmured: “Type A personalities.” I said: “Hey, don’t worry, baby! It’s 1:23, and we’ve got all the time in the world!”
My friend Jan, a lawyer, joined us. “They often put the most interesting cases last,” he said. “So we’re interesting, are we?”, said I. I wasn’t sure I wanted us to be interesting.
The door swung open at 1:40, and we filed in along with all the suits. Mathur was nowhere to be seen. We tried to guess which guy was Corfield, Mathur’s lawyer. Wendy had encountered him—or someone who might have been him—a few days before in Laguna Beach. She described him to me as “kinda a surf bum.” I scoured the room for such a person. I spotted one—way off to the left. He seemed to be lookin’ for the perfect wave. Sand fell from his pockets.
We watched the bailiff, who didn’t seem to have anything to do but swagger. I mentioned that, for many years, trustee John “Brown Boy” Williams was a bailiff. We watched this one as he slowly transferred a piece of paper from one end of the courtroom to another.
At 1:55, for some reason, the courtroom became eerily silent, and everyone stared in anticipation. But Brenner still didn’t show. At 2:00, a man in a judge costume started hangin’ around by the back door chewin’, but he was just teasin’ us, I guess, ‘cuz nothin’ happened.
Brenner emerged at 2:15, and he sure did look like a judge. The first case was Martinez v. Somethin’-or-other. Brenner told the lawyers he wasn’t up to speed, and so let’s do this another day. “My fault,” he said. In the next case, someone didn’t file something, and that wasn’t so good, apparently. Then, in the next case, a lawyer neglected to file the “opposition,” and so Brenner granted the summary judgment. Bang!
A case concerning “Commercial Wastepaper” was up next. Brenner spoke of a “grudge match” that had been going on for a long time. While that went on, I looked over at Corfield, who happily played Beach Blanket Bingo on his legal pad.
The judge said some critical things about the opposing parties. Wendy whispered something about “Judge Wapner” into my left ear. Meanwhile, Brenner evidently had to impose a $1000 fine on somebody, but he wasn’t sure quite how he oughta do that, and so, after a few moments of Solomonic reflection, he said, “I’ll tell you what; let’s split the difference. Five hundred dollars each.”
Wow. I hoped he wasn’t gonna pull this splittin’ maneuver in my case.
A suit involving “American Funds Service” was next. Someone wanted attorneys’ fees, but Brenner turned ‘em down flat.
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.
We passed notes around. In her note, Carol opined that Brenner “certainly is very cordial,” and that he has a sense of humor, unlike some o’ those surly and pompous judges she’s used to in Federal Court. Just then, Brenner looked at a one of the lawyers and said, “It’s a pleasure to see you”—which, I figure, was just his juristical way of sayin’: “How’s it goin’, asshole?”
By 3:00, the court had moved on to Klein v. Somebody, and a lawyer or the judge said that the case was just a “rehash.” This talk of rehashing led to more loose talk, and soon, a lawyer misspoke, asserting something about “heat.” “I’ve seen lawyers in heat,” quipped Brenner.
A short, attractive, blond dynamo got up to argue for her client in McCornan v. Pine Creek. Evidently, a landlord refused to rent to a guy because he was an African American. Wow. As the judge and the lawyers spoke, they referred to “sexual orientation,” “homosexual animus,” “outrageous conduct,” and whatnot. We all stared intently: it was just like an episode of LA Law.
At 3:30, Brian Wilson left the room again. Brenner expressed skepticism about something Surfer Girl said….
At 3:35, Brenner called for a ten minute recess, apparently to give the court reporter’s digits a rest. We went outside and jawed. I noticed that the case that had just been heard immediately preceded “Mathur v. Bauer” on the docket!
At 3:53, we were back inside, and, sure enough, “Mathur” was next. Here are my notes, which are pretty spotty:
BRENNER: Brenner notes that the case is a motion to strike. [That is, it’s a motion to dismiss the suit.] He asks attorney Sobel what she has to offer.
SOBEL: Carol refers to the purpose of the anti-SLAPP statute…she says something about “encouraging” resolution at the earliest possible stage. [The statute is designed to protect people against “Strategic Litigation Against Public Participation.” In other words, it’s designed to combat the chilling effect of lawsuits against people who speak out on matters of “public significance.”] The defendant’s burden, she says, is “miniscule.”
She says the sole cause of Mathur’s action is “invasion of privacy.” If any of the 4 key elements (which she lists) of such a case fails, the case must be dismissed. It is clear, she says, that Mathur is a public official. (Relative to…?) Mathur needs to make a case that the facts are false—or that’s it.
The articles and documentation in the newsletter concerned Mathur’s conduct as a public official, and the conduct of such people is always a matter of public concern. Hence, Mathur can’t prevail in this case. Keep in mind: he [Mathur] doesn’t contest the facts reported in the newsletters, and they’re enough to “puke a dog off a gut wagon!” [Well, I made up the part about the “gut wagon.”]
Invasion of privacy involves the public disclosure of private facts (and that’s not involved here). Mathur is a public official…
In these cases, the burden shifts to the plaintiff, who needs to provide “competent evidence” that he will [likely] prevail (in a trial). Mathur has not met that burden. His papers are devoid of (evidence of the requisite sort).
[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.”
Corfield says that Bauer’s attorney hasn’t succeeded (in showing the applicability of the anti-SLAPP statute?).
Bauer, repeats Corfield, has stolen Mathur’s records.
Defendant’s counsel today tells us, says C, that Mathur must prove his case. Corfield refers to “Briggs.” …So I don’t have to prove my case; rather, I am obliged only to STATE A CASE.
The defendant’s moving papers, says C, are largely (1st Amendment?) boilerplate; (hence) they offer “obtuse” [sic; he means “abstruse”] language.
Bauer’s counsel is [comparing?] apples and oranges. We need to look at Schulmann (a Supreme Court case?).
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.
(Corfield argues that the events to which the “papers” are related occurred very long ago. In his filings, he refers to them as “ancient”--and thus unnewsworthy. Brenner seems to reject that adjective--“ancient”-- as applied here.)
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.
She refers to a “misdirected fax” (from Mr. B to the chancellor), which is cited by Mathur as evidence of my alleged “theft.” [The fax was a copy of a letter in which the district’s attorney, Spencer Covert, opines that Mathur had indeed violated federal law by distributing a student’s transcripts. In fact, Covert’s letter had been widely distributed on campus not long after it was sent by Covert to IVC.] The fax, she says, was sent to the chancellor two days after the publication of the first Dissent at issue in this case. There is no evidence that the fax even got to the defendant (Bauer). The faxed Covert letter never appeared in the newsletter. So where’s the evidence of theft?
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…
Brenner says: I’ve denied these motions before, but the defendant [Bauer] is exercising his 1st Amendment rights. He is reporting on a matter of public interest.
Finally, Brenner says: I don’t think there’s any evidence…I will grant the motion [to dismiss Mathur’s suit].
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.
As we waited for the elevator to arrive, Mr. Corfield snuck up behind us and then rudely interrupted, asking Carol about Mr. B’s attorney, with whom he wanted to arrange a conference. Wendy turned to him and said that Corfield was looking for her. As he commenced speaking, Surfer Joe poked Wendy hard in the shoulder, like she was Annette Funicello or somethin’. She kicked sand in his face. (Well, not really. She was very professional.)
Next: attorneys’ fees. Fun fun fun! —CW
March 2, 2000,
IRVINE WORLD NEWS
College president’s suit against professor dismissed
By Laura Hayes
On Tuesday, an Orange County Superior Court judge granted professor Roy Bauer a special motion to strike an invasion of privacy lawsuit filed against him in January by Raghu Mathur, president of Irvine Valley College.
“The motion was based on legislation to protect people like me when they are speaking the truth about a public official,” said Bauer.
The lawsuit charged that Bauer had published in his newsletter “Dissent” in January 1999 a confidential memorandum that Mathur claims was stolen from his personnel file. The 1996 memo centered on administrative concern with Mathur’s handling of a student’s transcript.
Carol Sobel, Bauer’s attorney, said the statute employed by the court is aimed at stopping at an early stage a lawsuit aimed at preventing citizens from participating in the legislative process.
“If the basis in the lawsuit is related to free speech and concerns a matter of public concern, then the lawsuit should be stopped at the earliest possible moment,” said Sobel.
Judge Michael Brenner ruled that how Mathur performs his duties as college president is a matter of public concern and he didn’t see anything in the published statements that appeared untrue, said Sobel.
After hearing from both sides, the motion was granted when the judge determined there was not enough evidence that Mathur would prevail in the invasion of privacy claim.
“You’ve got to show that you’re likely to win,” said Bauer.
Michael Corfield, Mathur’s attorney, said the judge only considered the defamation of character issue and failed to focus enough attention on the invasion of privacy issue. He said he will talk to Mathur about the possibility of an appeal.
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