[ . . ., but sometimes things prevent us from speaking out. Like client confidentialities, not wanting to upset the judge, things like that. But as you may have heard, the quest for the identity of the Robocall perpetrators has hit a snag. So until the appeals conclude, if they even start at all, all I can share with you is the court record of events.
Sit back Simi Valley, grab a cool beverage and relax. It’s a long read but at least its something I can share, this the transcript of the second in a series of four hearings held in the related Robocall cases. Mitch]
It’s after 8:30 a.m. on June 11, 2014 when Judge Kent Kellegrew, Department 43 of the Ventura County Superior Court announces, “Let’s take up the Kolarek matter.”
“The Kolarek matter” is a defamation and emotional distress claim filed by Kelly Kolarek, a Simi Valley, California resident and used car dealer, involving an anonymous robocall that circulated in Simi Valley on October 22, 2012. The text of the robocall was as follows:
“I’m your neighbor and really concerned about crime in Simi Valley. Did you know that Steve Sojka, running for city council, may want to shut down our police department, fire our police officers and contract with the county? Imagine wanting to shut down our fine police department. This is the same Steve Sojka who gave seventy thousand dollars of our tax money to a friend and campaign supporter to remodel his used car lot; a matter now before the grand jury. Sojka voted for condominiums in our hills and happy face. Sojka talks the talk but doesn’t walk the walk. Its time to get rid of Sojka before he really hurts our community. Thank you. This message is paid for by Justice Political Action Committee.”
Mr. Kolarek contends in his lawsuit that he was the only licensed used car dealer in Simi Valley on October 22, 2012 and that he has been defamed, if only by inference. Kolarek is represented in court by Mitchell Green of Simi Valley. The Defendants at this hearing are represented by Stewart Nuevelle of West Los Angeles, Neuville’s associate Hope Aguilar, and Laura Bartles, a Filmore, California attorney who is also the Ventura County Bar Association president. Also sitting with defense counsel is George Yin.
“Good morning, your Honor. Mitchell Green for Plaintiff Kolarek,” Green starts out.
“Morning, your Honor. George Yin on behalf of Tina McKinnor.”
“Good morning, your Honor. Stewart Neuville on behalf of Defendants Liberty
Campaign Solutions, LLC, Patrick Furey, and Justice Political Action Committee, which is a defunct organization.”
“Good morning, your Honor. Hope Aguilar of the Law Offices of Stewart Neuville, also for Defendant Liberty Campaign Solutions, defunct Justice PAC, and Patrick Furey.”
“Good morning, your Honor. Laura Bartels representing the defendant, Liberty Justice PAC.”
Judge Kellegrew continues, “Now, we have a number of different motions on calendar, and I attempted to prepare a tentative that might serve as a basis for the beginning
of our discussion. First, I wanted to check to see, were you able to retrieve the tentative?”
“Yes, your Honor,” replied Green.
“Yes, your Honor,” announced Neuville.
“I’m sorry that was published after five o’clock, but I’m in trial until 4:00 and I had other responsibilities. In order for me to get through everything I get through, sometimes things don’t get published until after five o’clock. I’m glad you were able to retrieve the tentative.”
Mr. Nueville asked, “Your Honor, may I please sit down?”
The Court replies, “Of course. Of course. If anyone needs to sit, you’re welcome to sit.”
“Thank you, your Honor,” Green said.
Judge Kellegrew continued, “For me, there’s a balance at the heart of this, from my perspective. The Code of Civil Procedure provides guidance with respect to 425.16(g)
that says, Well, when the anti-SLAPP motion is filed, there’s got to be a stay on discovery. That was the intention of the legislature. The legislature has a particular concern about protecting the First Amendment. That’s an appropriate goal. I’m not second-guessing that.
The concern that I had at the heart of it is that the plaintiff can’t figure out who it is that’s
saying these terrible things about him; and there’s something very disturbing about that; that if for the sake of discussion, the robocalls were disseminating information that was just false, and based on the language that has been transcribed for me with respect
to the robocalls and the alleged statement that the grand jury had found, the conduct — pardon me – the grand jury was investigating the conduct because inferentially there was something suspicious and wrong about the conduct. If the robocalls disseminated that information and it’s just false, and there seems to be evidence to support the proposition that it’s false, that there was a grand jury investigation, it appears as if the grand jury had made a determination that they were not going to take any further investigation.
So, sequentially, it’s my understanding when the robocalls were being published — when I state “published,” I mean there’s some machine someplace that’s repeating a recorded statement that’s automatically — the language that comes to mind is — broadcast over many thousands of telephones. That information is being broadcast after the defendants
allegedly knew that the grand jury had made a determination that no further investigation was appropriate, then that data would be false and particularly false and particularly hurtful to society generally in the context of an election and perhaps to a
merchant in the community if the merchant is identifiable.
Mr. Neuville, “Your Honor, may I respond?”
“Well, I’m not quite there yet, and I’m looking — I would like to consider your comments,
but sometimes it’s useful — you know, the tentative is pretty specific. I’ve got a whole bunch of different motions here, and I’ve got to address each one. But there’s something common with respect to the response to these motions, and it’s the analysis that I’m attempting to share with you right now. I’ll do my best to complete it quickly so we can move ahead.”
“My apologies, your Honor,” Neuville responded.
“That’s all right. It’s okay. In the context of the SLAPP motion discussion, there’s a determination that has to be made by the Court with respect to whether or not it’s likely the plaintiff’s evidence will preponderate. That is one of the subjects that I have to take up. I always have to be careful with my language. I’m not trying to express an opinion about what’s ultimately going to happen. I’m trying to describe what I see in this moment, because it’s what I see in this moment that guides me to where we go next. And what may ultimately turn out to be the truth, but we may not learn for weeks or months or longer, I don’t know. I’ve got to make the assessment now.
But one of the concerns that I have is to respect what the legislature said about protecting the First Amendment and not letting discovery mushroom. And the more discovery mushrooms, the more likelihood of dissemination of other information that may be protected. There are many goals that the legislature had for why it adopted 425.16(g). And at the same time, there’s this — what I’m attempting to articulate is a
If someone comes into one’s community and says — this is my language — bad things about another, and the person who is the subject of the accusation of the bad conduct can’t even figure out who his accuser is, there’s something fundamentally unfair about that. Whether or not what is alleged to be true is ultimately true is why we have courts. We’ll figure that out. Maybe the robocall was exactly truthful.
Once we have a complete understanding, we’ll be able to assess the facts and conclude, “Well, these statements were truthful and there’s nothing to be fearful of.” But that’s not the way it looks to me at this moment. That brings me back to — sometimes this job is almost existential. It’s only what you see in this moment, and then there’s a larger context that you have to be mindful of.
At this moment, I see this evidence that suggests that the robocalls were disseminating false information. At the present moment, the evidence seems to preponderate in favor of the conclusion that false information was being published to the community.
If that’s true, I am disturbed by the notion that 425.16(g) would then clamp on and then prevent the — I’ll use the word “victim,” although I have to be careful about that. I just need language that can helpme abbreviate some of these concepts — the victim’s
shut out to even figure out what’s going on. The – it seems to me that some kind of balance is appropriate. That is the theme of what the legislature said with
respect to limiting discovery, but to at least allow the party who is allegedly defamed to know who is his accuser.
It’s not, I think on a human level, satisfying to know that it’s some corporation that calls itself Justice Political Action Committee. You know, what’s that? It might as well have said moms love apple pie and the sun rises in the east. Propositions that maybe
everyone could embrace but communicates nothing. And how do you figure out who your accuser is?
So as we consider the tentative that I have included in the materials that I published, what underlied the tentative was my concern with respect to this fundamental fairness and the intention of respecting the goal of legislature as it pertains to 425.16(g). And the tentative is an effort to chart a path to address a fundamental fairness issue in
conjunction with the goals the legislature set.
So perhaps, Mr. Newhall (sic), since you’ve requested, maybe we can begin our discussion with you. What else should I be thinking about?
“Well, your Honor,” Mr. Neuville replied, “I would clearly — and I know you haven’t had time to study the motions, but — and I appreciate the fact that you want to strike a balance with discovery and the hearing of the actual SLAPP motion, and I understand and appreciate why you would want to do so, but I would like to point out a couple of things. Number one, the statute also requires that 425.16(f) requires that the anti-SLAPP motion be scheduled for hearing within 30 days. I think the sentence reads, and I quote, “The motion will be” — “shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of
the court require a later hearing.”
“And I want — with all due respect, you’re continuing the hearing on our anti-SLAPP beyond that 30 days. And I understand and appreciate the reasoning that you’ve given us; but I, with all due respect, have to interject an objection on behalf of my clients to
such a continuance because I have not been given – I want the record to be clear that Defendants in no way are stipulating to such a continuance or agree to such a
“Is the Court making a finding that your docket conditions require a later hearing?”
“Yes. Just for purposes of determining — I’ve used the language “who the accuser
is.” Who is — who are the individuals? I don’t know if it’s one person or if it’s many people. Who is or are these people who are the source of this statement?
We don’t have to go — I think Mr. Green would prefer that we have more comprehensive discovery, and let’s search some databases, let’s get broader phone records, let’s get more information.
I can appreciate why he might want that. And when we get to the hearing on the motion, it very well may be that if the evidence preponderates in the plaintiff’s favor, that’s where you’re going, but that’s what the legislature said. First we try to address these fundamental preponderance issues first before we allow our discovery
to spread out so wide.”
Mr. Neuville responds, “Well, let me address the discovery, if I may, then. It seems to me that any discovery is not relevant if we take the SLAPP motion down to its single
element of the statute of limitations. There is evidence before the Court in our
motion clearly demonstrating that the plaintiff filed a complaint with the Fair Political Practices Commission on November 17th, 2012. He was aware of Justice PAC and
Tina McKinnor at that time. It actually lists their names in the complaint. The robocall itself was made prior to that on October 12th — the — and the complaint was filed in late January, January 31st, 2013.
Clearly, we have a violation of the statute of limitations. There’s no discovery that’s going to change those facts, and I don’t see how giving — holding off on the hearing on the anti-SLAPP motion to have discovery will change those facts. So, therefore, I would say that although I appreciate the balance you’re trying to strike, I don’t believe that it’s
appropriate in this particular case.
Second, I would like to point out also that the robocall was published before — and we have the evidence in our motion, before the grand jury made any determination of whether or not to move forward on the complaint, leaving the robocall, in fact, speaking the truth.
But more important than that, what everybody seems to gloss over and forget is that the robocall made a statement that was not about the plaintiff. It was about a politician running for office and not about the plaintiff, so the statement itself wasn’t even made
about the plaintiff.
These are two — the statute of limitations and these facts together seem to me to alleviate any rationale for the need for any discovery.
Judge Kellegrew responds, “Well, with respect to assertion that the statement wasn’t made about the plaintiff, the plaintiff’s theory is that he’s the only licensed full-time used car salesman in the city. Anyone in the know knows this is about him.”
“And anyone in the know knows that’s not true,” Neuville interjected. “Again, we have evidence in the motion that shows at the time there were 13 used car dealers. Now, the reason everybody knew it was him is because the plaintiff himself and his attorney were all over Facebook and all over the Internet — and then again it’s in the motion — talking about it and claiming it was about them, so that’s where that comes from. It was also in the local newspaper before the robocall.
The Judge nodded acknowledgement to Mr. Nueville and turning, redirects his attention, “Well, perhaps, Mr. Green, help me with respect to the statute-of-limitation argument.”
“Well, first off,” Mr. Green replied, “your Honor, what defense is not addressing is we have two causes of action, one which is the negligent infliction of emotional distress, which has a two-year statute of limitations, which hasn’t run yet, so there’s no reason
for Plaintiff to even address it, but it is what it is. A special motion to strike as to the entire complaint, well, if it’s the entire complaint, right there they lose.
With regard to Miss McKinnor, at the time the complaint was made to the FPPC, there was no evidence that Justice PAC had anything to do with the robocall. Form 460s were submitted that showed there was no disclosure made whatsoever. Defense now comes on and said they did it through robocall for $99. We could — you know, well, when the time comes can show that database cost for 1800 — 18,000 costs about $900. It’s
about a nickel per call, so it’s about 15-, $1600 to do a robocall. I don’t know how they could do it for $99. They would clearly have to disclose that.
So what was submitted to the FPPC was, ‘Look, you know, here’s something for Justice Political Action Committee, but we’re under the presumption that you . . ., someone just stole their name and used it. We had no idea that it was an actual entity that was alive and functioning at that time. Their website had been taken down three or four weeks before. So that may be an issue.
There was no knowledge at the time — up until we received the rejection letter — I’m sorry – the warning letter from the FPPC that was addressed to Tina McKinnor and Justice PAC on November 26, 2013, did we have any knowledge that they were actually involved in this.
So perhaps that’s an issue. Perhaps they can be negotiated out at some point in time, but that’s also a reason why we need to do discovery. So far we don’t have anything except, you know, the statements from counsel, which is not testimony.”
Neuvelle interrupts Green, “Your Honor, turning to the statute-of-limitations issue regarding emotional distress, I refer the Court to Snyder versus Phelps, 131 Supreme Court, 1207, which held that First Amendment freedom of speech provided complete defense from liability for intentional or negligent infliction of emotional distress for the defendants who are engaged in peaceful picketing. So the two-year statute of limitation for emotional distress will not save Plaintiff’s causes of action if the defamation action fails under the anti-SLAPP.”
Mr. Green complains to the court, “Your Honor, I prefer not to be cut off in my discussion. Nonetheless, yes, wrongful statements, even if it’s not defamatory or if it’s meant to hurt or negligently causes harm, we would argue, yes, there’s a two-year statute of limitations. There’s still the constitutional issue whether this even rises to
constitutional speech, but that is for a later date.
My review of the Court’s tentative, which Plaintiff agrees with and submits, is that this is a ruling on the ex parte application which was heard on May 19th, and the Court is agreeing to continue the hearing on the anti-SLAPP so Plaintiff can conduct
discovery. And, yes, Defense did schedule their hearing within 30 days; but under “G,” the Court can allow discovery, which necessarily means the Court can continue the hearing date. So there’s nothing wrong with that.
I don’t really see today is the day to argue the constitutionality of their speech, but we have provided ample argument and authority that false statements don’t rise to the level of constitutionally protected speech, and false statements conveyed in a
criminal manner do not rise to the level of constitutional speech. And we’ve provided authority under 47 USC 227 and 47 USC 501 that the statement, the way it was conveyed, does potentially violate the criminal statutes of the Telephone Consumer Protection Act.”
“That’s irrelevant!” Neuville blurts out.
Mr. Green, continuing, “And counsel says it’s irrelevant, but they’re the ones who are raising the First Amendment issue, so it is relevant.”
Judge Kellegrew calmly continues, “Well, one of the things I’m trying to focus on right now is Mr. Newhall says at the time the robocalls were made the statements in the robocalls were true.
When I looked at the letter from the grand jury, that letter seemed inconsistent with the
assertions in the robocall. Have I made an error, Mr. Green, with respect to my timing? Because that’s what I understand Mr. Newhall to be saying, that when the robocalls were publishing, the letter hadn’t been disseminated from the grand jury; therefore, the statements that it’s – the robocall were making were true.”
Green responds, “The robocall was first broadcast 18,000 times — 13,750 times on October 22nd. It continued to be available to anyone calling the caller identification number thereafter. The grand jury rejected the complaint for filing on November 1st. There was no good reason to assume it had been accepted or it was a matter before
the grand jury on the date that they disseminated the original call. It’s like waving around an unfiled superior court complaint and stating it’s a matter now before the superior court. If the court clerk later rejects it for any reason, even a technicality, it was never before the superior court. They’re trying to argue, “No. We sent it in. We talked about it; therefore, it’s a matter in front of the grand jury.” It never was.”
Mr. Neuville then states, “Two things in response, if I may, your Honor.”
Judge Kellegrew, “Sure.”
Neuville continues, “One, it’s a grand jury, not a court, where the documents were filed. It requires the grand jury to respond once it has been done. And Plaintiff has a tendency to want to hang his hat on the fact that there was — as we know, there was only one
publication and that was in October . . .”
“Twenty-second is what the screen says,” the judge replied.
“It was on October 22nd, Neuville continued. “There was no publication after that. And the only people who got the robocall, which was on a service, a VoIP service, was anybody who copied down the number and then called the number back to see if the message was still there. And as far as we can tell from the paperwork, the only people who copied down the number, disseminated the number, and had people call back were Plaintiff and his associates. So there was no publication on the part of the defendant is the point I’m trying to make, other than October 22nd.”
Green jumps in, “And, your Honor, we’re here because we’d like to see that paperwork. Under defamation law, anyone who observes that false statement, other than the
plaintiff himself, is another — is another broadcast to the defamation. They’re trying to use the single-publication rule. But when you look, it discusses one book, one magazine article, one newspaper article. It also discusses one movie theater showing.
Well, if you show that movie theater showing 13,000 times in one day and other people come to see that movie thereafter, each one of those is a separate act. It’s not under the single-publication rule.”
“That’s a misstatement of the law, your Honor!” Neuville interjects.
Green, continuing, “They’re trying to confuse the Court there, and counsel continues to interrupt me. I’m sorry, your Honor. I object to that.” The court remains silent.
Neuville continues, “Case law is very explicit on this. There have been many cases, primarily with newspapers, because of historical publications, and repeatedly the courts have found a newspaper would publish an alleged defaming article and this newspaper
would be sent to a library and that library would maintain records of all the newspapers published and anybody could come into the library and look up that particular newspaper on that particular day and read the defaming article as many times as they want because it was part of the research library of the — section of that particular library.
The courts have repeatedly said that there’s only one publication. You can’t — you would end up destroying the statute of limitations if you pretend that every time somebody read the article it was a new cause of action starting all over again. And it’s — the same. It applies to this same thing here. But, again, I go back to the facts of this case, and that is Defendants published one time, October 22nd. They made no efforts to publish any
further, but . . .”
The Court directs the conversation to Green, “Do you have any evidence to the
contrary, Mr. Green?”
“As to what, your Honor?”
“As to the publication subsequent to November 1st.”
“When I was here the last time, I brought my telephone records where I showed — I did not bring that with me today. I can provide that to the Court, my telephone records to the call-back on January 10th. It was still available on that date.
What we’re hearing now is perhaps there were more calls than that. They’re saying Plaintiff and his associates. I’m not sure who the associates are that called back that number, but apparently they have records that there were calls that were made to that
called number that received that message after the original date. We would like to get our hands on that. What was the date of the last call, your Honor?”
“Well, your Honor,” Neuville argues, “we base our argument on the fact that the phone number was taken down by counsel, Mitchell Green, and published after the fact of the robocall on his Facebook, and his Facebook members picked it up from his Facebook and began calling that number. We didn’t know about anybody calling that umber until this particular action and checking with the people who supplied us with the VoIP in the first place, and they said it was their routine to leave the number alone for 60 days before they sold it to the next person.”
“January 10th was more than 60 daysafter October 22nd.” Green asserted, “They have information that we would like them to share. They are using the anti-SLAPP statute pretending that they’re the victims here to prevent us from obtaining the information that they’re essentially flaunting in front of us. They have this information. They know this information. They won’t share it. They won’t tell us who was behind it. And the reply, they even now tell us the Coalition of $99 or Less Donors is ten people. They know who these people are. That’s what this is all about, your Honor.”
Neuvelle responds, “Finally, in response to that, your Honor, California Government Code Section 842011(f) specifically provides that those who donate $99 or less
may remain anonymous.
“And may I also state, your Honor,” Green replies, “under Maryland versus United Telecaster(sic)” [Editor – actual case title is “Maryland v. Universal Elections, Inc., (2013 4th Circuit) 729 F.3d 370], “decided last summer, any party who participates in a robocall
that violates the Telephone Consumer Protection Act can be held jointly and severally liable. They may be able to remain anonymous for purposes of reporting under campaign disclosure laws, but they can be held jointly and severally liable under federal law for violation of the Telephone Consumer Protection Act.
An agitated Mr.Neuville responds, “Those issues are not before this court!”
Green replied, “Well, yes, they are.”
Neuville continues, “. . ., which brings us back to your point, your Honor, and your appreciation for balance in trying to strike a balance and permit discovery.
We still would maintain that there was no — there is no point to discovery. There is no benefit to discovery. There’s nothing that can be discovered that would save Plaintiff’s complaint.”
Ms. Aguilar, Mr. Neuvielle’s associate begins, “Your Honor, if I may add, Defendants didn’t even know that their VoIP vestige — that’s what’s it’s called, VoIP vestige — didn’t even know that that number existed. They just contracted with a company called Stratix, out of Florida, paid them a half a penny a call to broadcast to 18,000 homes on
October 22nd, in anticipation of the November 6th, 2012,
They paid for it, that service. They had no idea that Stratix kept the number live or anything else. They had no idea the caller ID would show a number. They had no — and we have no idea who called because we don’t own the number. Even Stratix said — and now that we have more time, I will get a declaration from them. I’m fighting with their lawyers right now. They said that the number became unassigned on December 6th, 2012, so we — we had no power over it, and Stratix abandoned all power over that phone number, that VoIP phone number, on December 6th, 2012.”
“Well, we’ll get to that.” Judge Kellegrew instructed. “That’s after we get to the merits of the SLAPP motion really, from my perspective. The kernel of this is less than half a loaf from what Mr. Green wants. Mr. Green wants some more comprehensive information about callbacks, about whether or not this number was still disseminating information.
I did hear what you said, Counsel, Mr. Newhall, Ms. Aguilar. I heard you say that. I don’t think you would intentionally misrepresent anything to me. The problem is you’re dependent upon what your clients tell you and what their agents tell them.
What Ms. Aguilar just said to me is that, Well, there was — there was stuff, technical stuff happening, and it was still possible that one could inadvertently
receive the information and the defendants really didn’t mean for that to be so.
We’ll get to that in the discovery. What I was attempting to get to is just the fairness. It feels — pardon me.
My feelings aren’t particularly relevant here, but it feels like so many smoke and mirrors.
Who are these people? It’s, like, elegant the way they have designed this to shield their identity.
If you want to disseminate information and it’s true, well, that’s what the First Amendment is all about. You want to disseminate information that’s false and hurts
people, that’s not protected speech. The beginning of the discussion is who’s saying
these things rather than some machine. That’s what I’m — I keep coming back to, that very disturbing aspect. That deeply concerns me.
So, Ms. Bartels, and — is it Mr. Yin?
Mr. Yin, “Yes, it is.”
Judge Kellegrew, “ Was there more you wanted me to consider?”
“No. Not at this time.”
“Your Honor, I believe everything has been said. Thank you,” Ms. Bartels replied.
The Court continued, “One of the things that I’m concerned that I misperceived was the timing. I couldn’t reconcile the letter from the grand jury rejecting the investigation with the data that was in the robocall; but, in part, I’m concerned is my sequencing, my understanding of what happened first.
Now, I currently have the impression that the robocall was disseminated on October 22nd; the rejection happens November 1st. Arguably, the robocall, when it was made, uttered a true statement, arguably.”
“Yes,” replied Aguilar.
“Arguably,” said the judge. “There’s just more to know. Well, that analysis is useful when I get to the issue of whether or not the plaintiff’s actions are likely to preponderate. It may come down to that simple timing issue. The larger concern that I have is with
respect to the possibility that someone could disseminate false information and hide their identity so completely.
Now, I understand Mr. Newhall, Miss Aguilar, where we have our point of departure, where we’re no longer in alignment. Could you help — would you focus on the tentative? Could you articulate for me, other than the general proposition that the legislature wants
a moratorium on discovery, what other harm would befall the defendants or violence would be done to the code if the Court adopted its tentative?
Ms. Aguilar, “Yes. The whole purpose of really limiting discovery to a very short window and just relating to matters regarding the anti-SLAPP is to prevent the defendants from having to be dragged through court, incurring expenses of discovery, and having to
have lawyers represent you and all of that. The whole thing is to stop oppressive litigation if it’s meritless.
And so the discovery can only be limited to issues relating to the anti-SLAPP issues, and — I lost my train of thought. It just disappeared.
So basically the point is to just get rid of the case at its earliest moment and — so that discovery should not be allowed to go on and on and to be about things peripheral to the issues in the anti-SLAPP.”
“Well, then I understand the underlying rationale,” the judge said, “but the structure of the anti-SLAPP process and — the legislature gave us a path to get to the merits.
On the path, Plaintiff ought to get to know who’s saying these things about him. If it turns out they’re true, then it’s protected speech. It’s true, and there you go.
How much — you know, I’m asking myself, what violence am I doing to the First Amendment, what violence am I doing to the Code of Civil Procedure to simply let someone — I don’t want to personalize it, Counsel. You’re here to represent.
But what if it was you? Wouldn’t you just at least want to know who is it that’s saying these things?”
“I would have filed my suit in November 2012 as Kolarek did by filing his complaint
with the FPPC,” said Aguilar. “He had a number of identifiable defendants because they’re listed in this complaint at that time, and he could have done discovery at that time in 2012, because we’re supposed to be able to – you know, the purpose of statute of limitations is so defendants can move on without the worry of being sued later, and that’s why the single publication rule is in effect so that you don’t have to worry after you publish a book, a radio show, a TV show. There’s a point of departure where a defendant can be in the comfort that he will not be chased.”
“I’m not struggling with the concept of the statute of limitations,” Judge Kellegrew responded, “I’m absolutely within the purview of the legislature to punctuate — that’s my
language — to punctuate the dispute. There’s sound social policy for having statute of limitations. Mr. Green, was there . . .”
“Well, with regard to the argument presented,” said Green, “at best, perhaps there’s an error with regard to Ms. McKinnor and Justice Political Action Committee, at best. I’m not conceding that either.
Again, when the FPPC complaint was made, the Form 460 showed no disclosure. There was no knowledge they had anything to do with it. Plaintiff didn’t even find out about Mr. Furey’s involvement, Liberty Campaign Solution’s involvement, Coalition of $99 or Less Donors until the FPPC concluded its investigation and he received their
investigative report by way of a Public Record Act request on December 9, 2013.
He didn’t receive confirmation that Miss McKinnor and Justice Political Action Committee had actually been involved and someone didn’t just lift Justice PAC’s name and use it falsely. He didn’t receive that until November 26th, 2013. Arguably, the statutes run on those dates; so perhaps that’s best preserved for summary judgment, if they take it that far, perhaps.
If we find out through discovery that their involvement is not merited, they’ll be let out. We don’t know. All we know is that we had agreed depositions scheduled for May 12th for Miss McKinnor and May 22nd for Mr. Furey and then the motion was filed two
days before the depositions were set to start.
So for them then to say that, you know the, intent here is to limit the cost and expense of discovery, my client’s had to spend over $25,000 since he was hit with this motion just to fight this. They’ve got four folks on their side. I’m sure the cost of going through this is far greater and multiple than just only those two depositions to find out where we go next.”
“Now, the depositions were going to
be wide-ranging, the judge observed. “I was focusing on a very discrete scope of discovery.
And I’m listening to Mr. Green with respect to statute of limitations issue. What do I do with these other named defendants who, according to Mr. Green, could only have been discovered in December 2013? How has the statute of limitations passed for them?”
Mr. Neuvelle replies, “Well, the statute of limitations still applies. They’re Doe defendants. Just because you don’t know the name of the defendant doesn’t mean
you escape the constraints of the statute of limitations. You file your lawsuit — even if you don’t know any name, you file your lawsuit, Kolarek versus Does 1 through 1,000, and you go out and do your discovery and find out who they are, but you don’t miss the statute of limitations date. But I would like, if I may, your Honor . . .”
The Court interrupts, “Wasn’t there a tolling when you’re going to the administrative agency, to the Fair Political Practices Act, to try to get the information? That’s the impression I have from Mr. Green, that Mr. Green’s clients were on the path trying to figure out what to do next. And I don’t want to mischaracterize your position, Mr. Green. You did stop there to try to get the information. You filed the appropriate request for
the dissemination of the information. There was no other source to get the information. The moment you get the information, you take the action. Is that what you’re saying?”
“It’s clearly delayed discovery,” Green adds.
The Court looks askance, “Pardon me?”
Green continues, “That’s a delayed discovery, yes.”
“Well, I understand the concept,” the judge said. “I wanted — I understand what delayed discovery is, but my concern is — I understand you to say that your client was diligently working to discover.”
“Yes,” said Green.
“Sometimes your delayed discovery was inadvertent,” the Judge continues, “You were motoring through life, didn’t realize you had been harmed, and then you turned a
corner and realized, My goodness, something bad has happened here. Here you perceived something wrong had occurred. You took, what I’m understanding you to say,
from your perspective, appropriate steps to figure out who is it that’s doing this.”
“Yes, your Honor,” Green said in agreement.
“And then it took time for that agency to give you data.”
“Yes,” Green agreed again.
“When they did, you took appropriate action.”
“Yes,” Green responded for the third time.
“That’s not lacking,” said the Court. “That’s not sitting on your rights. That’s moving ahead.”
“Yes,” replied Green. “And we don’t know why the FPPC’s timing was such. They did their basic investigation and interviews in August of 2013; and they, for whatever reason, backlog, did not produce their results until November 26th, the same date we
submitted a Public Record Act request to get the balance of the information from their investigative file. We received that on November 9th (meaning December 9th, he said in error).”
Back to the Judge, “So if we could focus on that aspect, chronologically, is there really a dispute from the defense with respect to what the plaintiff did in an effort to try to follow the procedures in the Fair Political Practices Act?”
“Well, your Honor,” replied Mr. Neuville, “let me try and answer your question the best I can.
First, there is no tolling because you’ve requested information from an agency. There’s only tolling if that agency is, by law, entrusted to provide you with a remedy. The Fair Political Practices Commission is not in the business of providing remedies for complainants. That would be my first response.
Second of all, this was — would I like the first complaint — when was this complaint filed . . .”
Ms. Aguilar prompts Neuvielle, “January 31st — November 7, 2012.”
“Okay,” Neuvelle continues, “Plaintiff filed their complaint with the Fair Political Practices Commission in November of 2012; and in that application, which is Exhibit 18, they have to fill out a form. Part of those forms list the Justice Political Action Committee and
Tina McKinnor. So as of that date in November of 2012, they already knew my clients’ names. But if I may, your Honor, you presented a broader concept in your question. Your question was, what harm is there in permitting limited specified discovery under the statute?
My response to you would be this: The elephant in the room here is that this is not about a defamation case. This is about political punishment, political harassment. This is about charging your political enemies so that the next person would not dare place a
robocall against you.
The more this case gets stretched out, the more people on the outside look at it and go, Well, then I’m not going to ever voice my opinion because I don’t want to get involved in this.
The harm that you are inquiring about in allowing discovery is that it’s a greater chilling
effect on free speech. This is why the legislature stated in its preamble that there was too much of this going on and they wanted to nip it in the bud quickly, yet they recognized there may be cases in your discretion that would require specified discovery. We have yet to talk about what that specified discovery is.
But, in my opinion, what is going on here is that this is simply politics, and allowing this case to go further than it should simply chills the free speech of not only the defendants, but those who participate in the local political arena.”
“Why?” ask the Judge.
“Why?” asks Neuville in return.
“No, no,” counters the Judge, “I’m going to acknowledge it that you see it that way. I’m not going to try to debate the legislature rationale. They get to have their rationale. They get to pass their statute, and it’s not for me to second-guess.
What I’ve got to do is take the framework that they gave me and then look at the facts that I’ve got and then figure out could this possibly have been the result that they meant.
The defendants are characterizing themselves as the victims when they’re disseminating information to thousands of people through shells where no one can
figure out who they are.
And the First Amendment is meant to protect that would have basically — that the subject of the disseminated information is false, that’s just so disturbing.”
Neuvelle continues on, “Well, I think one of the first threshold questions you have, your Honor, is as the statute says, to determine whether or not there is a probability of the plaintiff prevailing on the action; and I don’t see under these circumstances with the
aspects of the statute of limitations and the aspects of political free speech that the plaintiff has a probability of prevailing.
Even if we didn’t want to address the second prong of what I just said and just stick to the first prong, the statute of limitations, I don’t see how the plaintiff can prevail. And, again, I get back to my earlier argument that this makes discovery irrelevant.”
Replied the Court, “Well, I need to check with respect to whether or not the analogy you gave me, Mr. Newhall, with respect to whether or not there can be some sort of
tolling by going to the Fair Political Practices Act to figure out who are these people who are disseminating this information, but the plaintiff can’t get it until a particular moment in time, and they’re diligently trying to get it to say, “Well, then just sue some Does” — I
guess they just serve some Does and say, “Well, somebody in the world is saying bad things about me. I don’t know who I can serve because no one will tell me who this is because we have all of these shell entities” . . ., your analysis, I don’t want to mischaracterize it or be flip about it. But you said, “Well, just file a complaint. That’ll toll the statute of limitations.”
But the plaintiff can’t figure out who to serve. Who are these people?
So let me see if I get — your case is complex and fascinating to me. There was another gentleman who came back into my courtroom and his assets are tied up, and he’s — I’m going to use the language — he’s very concerned that I get an answer to his question.
All these people coming into my courtroom now are related to a case I’ve been trying for weeks and will be trying for weeks, and I’ve got 15 jurors. I’ve got to resume that trial in 11 minutes.
“Okay,” replied Mr. Neuville.
“And as much as I have valued the input that you’ve given me here today and I appreciate how much you’ve allowed me to understand better your problem, I need to look at this a little bit more.
So that you can know, the path that I’m on now is to flesh out on the stature of limitations issue whether or not there’s some sort of tolling as it relates to what Mr. Green has said, because I’m currently of the impression that it — the plaintiff
couldn’t learn the identity of the disseminator of the alleged false statement but was diligently trying to get that identity. I think that this may qualify as a
I have a concern. I’m listening really carefully. I’ve got a concern with respect to my timing because if at the moment the data was disseminated it was possible to be true, the First Amendment requires that it be free speech, if it was true when it was
uttered. We err on the side of permitting the speech to be disseminated.
If it turns out later that it was false but without bad intention, just — I’ve got a different
So the sequencing is important to me, sequencing in terms of the statute of limitations issue both with respect to the publication of the robocall, and it’s the sequencing with respect to the capacity to discovery the possible defendants.
Mr. Green says they were working hard. It’s not as a result of their inadvertence or inexcusable neglect. They were working hard, and another agency of the government wasn’t disseminating the data they needed. I need to check those two subjects. That’s the path that I’m on.
And I need to be mindful of what 425.16 (g) says. But I’m sorry; I just must punctuate our conversation. I have not only the 15 jurors and the three attorneys, I have the — well, there are nearly 50 witnesses in my case. They won’t all be testifying
today, but I’ve got them stacked up, and I just – to keep everything moving, I have to start and stop on time, so I’m sorry. I need to bring our conversation to a close today. Thank you very much for your time.
“Your Honor, just two seconds,” asked Mr. Neuville, “I promise.”
First of all, the parties have stipulated to service of — service by e-mail with the deadline being the last date to serve by 5 p.m.”
“That is correct, your Honor,” Mr. Green responded.
“Okay,” says the Judge.
“Third, are you going to give us a date for the hearing on the anti-SLAPP?” ask Mr. Neuvelle.
“I had proposed 60 to 90 days,” the Court states. “I’ll share with you 60 days from today’s date would be August 11th, 90 days would be September 9th. My goal would be to support people if they are in agreement. I’ve got five lawyers. I have to check their respective schedules, and so what I would request is, would you check your respected schedules to select a date within that window. And then all this may change depending upon my ability to find the answer to the questions that I’ve tried to identify for you, so I
don’t want to put you through a needless exercise. But I want to try to negotiate a common date for our next oral argument on the record because my staff will be
with me all day and we’ll be going till noon, and I need to let them — I’ll do this for hours, but I need to be mindful of my staff.
So my request of you, would you please check your schedules, please propose a mutually acceptable date between August 11th and September 9th for the
hearing on your motion, and then would you please notify my staff. We’ll put you on calendar.”
“Thank you, your Honor,” says Mr. Neuville.
“Thank you, your Honor,” said Green. “And, again, Plaintiff will submit on the tentative, if that’s the Court’s decision.
“Thank you. Thank you very much for your time,” the Court concludes.