| Blogs |
| Home Why This Website SDCOE CVESD Castle Park Elem Law Enforcement CTA CVE Stutz Artiano Shinoff & Holtz Silence is Golden Schools and Violence Office Admin Hearings Larkins OAH Hearing |
Exhibit 1 Plaintiff/SDCOE request for restraining order
Exhibit 2 The Schoolhouse Lawyer Who Helped Hire His Overseer
Exhibit 3 Jade Ray v. Heather Hargett tentative ruling
Exhibit 4 San Diego Union Tribune May 23, 2009 article about Leslie
Devaney being "tough" and "aggressive"
Exhibit 5 December 12, 2005 article by Leslie Devaney
Exhibit 6 June 11, 2007 article about Leslie Devaney possibly running
for office again
Exhibit 7 Newspaper articles about Stutz clients attacking CVESD
Exhibit 8 “Legality of Tri-City meeting disputed” by Michael Burge,
San Diego Union-Tribune, January 16, 2009
Exhibit 9 “Tri-City's Sterling suggests seat on board for supporter”
SAN DIEGO UNION-TRIBUNE January 9, 2009
I. The main issue in the instant motion is freedom of speech
I am forbidden by the injunction from revealing certain conclusions I might draw about
Stutz’ actions, but the First Amendment of the US Constitution as well as the California
Constitution protects my right to report facts and political opinion other than the opinions
prohibited by the injunction.
In the instant motion Plaintiff is asking the court to violate the First Amendment to the
Constitution, which was given the top spot on the Bill of Rights because it is the most
important. Plaintiff is also asking the court to violate the Constitution of California, Article
1 Section 2 (a) Every person may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press.
A. Opinion and Fair Comment Privileges
The right to speak guaranteed by the First Amendment to the U.S. Constitution includes
the right to voice opinions, criticize others, and comment on matters of public interest. It
also protects the use of hyperbole and extreme statements when it is clear these are
rhetorical ploys. Accordingly, you can safely state your opinion that others are inept,
stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings
or diminish their reputations. Such terms represent what is called "pure opinions"
because they can't be proven true or false. As a result, they cannot form the basis for a
defamation claim.
B. Substantial Truth
"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan,
376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff
has to provide convincing evidence of a defamatory statement's falsity in order to prove
defamation. The law does not require that a statement must be perfectly accurate in
every conceivable way to be considered "true." Courts have said that some false
statements must be protected for the wider purpose of allowing the dissemination of
truthful speech. The resulting doctrine is known as "substantial truth." Under the
substantial truth doctrine, minor factual inaccuracies will be ignored so long as the
inaccuracies do not materially alter the substance or impact of what is being
communicated. In other words, only the "gist" or "sting" of a statement must be correct.
The substantial truth defense is particularly powerful because a judge will often grant
summary judgment in favor of a defendant (thus disposing of the case before it goes to
trial) if the defendant can show that the statement the plaintiff is complaining about is
substantially true, making the defense a quick and relatively easy way to get out of a long
(and potentially expensive) defamation case. Substantial truth can also be a flashpoint
for libel cases involving public figures and officials who must show actual malice by the
defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991),
the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The
Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes
and translating from recordings and the need to edit a speaker's comments into a
coherent statement. The Court stated: We conclude that a deliberate alteration of the
words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New
York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results
in a material change in the meaning conveyed by the statement.
II. The injunction in this case disallows certain opinions but does not disallow all opinions,
and certainly does not disallow statements of fact
The permanent injunction issued in this case forbids Defendant to publish any statement
saying that Plaintiff is unethical or incompetent, or that Plaintiff engages in illegal acts or
intimidation. Plaintiff understands this very well. I told Mr. Holtz and Mr. Wade on April 6,
2009 that I voluntarily agreed to refrain from saying that Plaintiff violated the law or was
unethical or incompetent or intimidating, but that I intended to continue to report facts
about their law firm. Plaintiff is now trying to milk the agreement/injunction for more than
it is. Plaintiff wants the court to rule that defendant can never report on her website any
action by Stutz of which Stutz is not proud.
The injunction does not allow Plaintiff to completely silence Defendant. For example, if a
Stutz lawyer were to come to Defendant’s house and shoot her dog, the injunction would
prevent her from saying, “A Stutz lawyer committed a crime.” However, the injunction
would not prevent her from saying, “A Stutz lawyer shot my dog.” Plaintiff wants the court
to rule that Defendant could not even say, “A Stutz lawyer shot my dog.” Such a ruling
would violate the constitutions of California and the United States.
III. The injunction must be enforced fairly.
What more does this Plaintiff want from this court? Wasn’t it enough that the court
allowed Plaintiff to avoid depositions and production of documents and threw out
Defendant’s entire declaration without comment and relied entirely on the declaration of
Plaintiff Daniel Shinoff to allow Plaintiff to prevail in this case? Plaintiff wants the First
Amendment of the Constitution to be overridden by this court in regard to Defendant and
her website. Plaintiff is a highly visible public entity law firm that does not want the public
to know the simple facts about its actions on behalf of public entities.
And now Plaintiff wants to sneak in a new individual, one who has never been mentioned
in pleadings over the past 21 months, under the protection of the court’s public figure
decision. The court ruled that being a Stutz lawyer does not constitute being a public
figure. However, a woman who very recently ran for City Attorney of San Diego, and has
said she may run again, is not covered by this ruling simply because she is a partner at
Stutz. The actions of such a person are clearly of concern to the public, and the public—
including Defendant--has a right to comment on them.
The decision in this case was achieved without any consideration of evidence offered by
defendant. The court relied on the declaration of Dan Shinoff, who refused to be
deposed or to produce documents. At the same time, the court tossed out, without
comment, the declaration of defendant, who submitted to a six-hour deposition and
produced hundreds of pages of documents.
IV. It is not a violation of the injunction to discuss Plaintiff’s tactics or to use
words with general meanings, or even hyperbole, in political speech
Plaintiff won its lawsuit, and it’s still not happy, but the court does not have the authority
to restrict legal speech. Defendant has a right to discuss the tactics used in court cases
by public entity lawyers. Within the broad range of lawyer tactics, there is plenty of room
for disagreement without committing defamation. Disagreement about how to proceed in
a court case does not mean that anyone is being accused of unethical conduct.
Plaintiff has ventured far out of the limited purview of the injunction to make this demand,
asking that Defendant to be forbidden from making any criticism of any kind against the
law firm that is paid over a million dollars a year by taxpayers. Approximately one million
of that money is paid by San Diego County Office of Education, which has illegally
injected itself into this lawsuit. SDCOE paid Plaintiff to request a restraining order against
Defendant for trying to serve a deposition subpoena on Diane Crosier, the executive
director of Risk Management at SDCOE (Exhibit 1). This law firm and its relationship to
SDCOE has been discussed in the media. For example, Voice of San Diego published
the article “The Schoolhouse Lawyer Who Helped Hire His Overseer” on March 2, 2009
(Exhibit 2).
V. Defendant responds as follows to Plaintiff’s numbered issues:
(1) Issue: Plaintiff’s tactics; Robert Gallagher
As requested by Plaintiff’s May 1, 2009 letter (Plaintiff’s exhibit C), Defendant removed
the words “intimidation” and “extreme lack of ethics” from her web article about Robert
Gallagher. Now Plaintiff wants the words “couldn’t stomach the tactics being used by the
firm” and “reckless” and “aggressive” removed also. Plaintiff is ignoring the fact that the
injunction refers to defamation per se and specific statements that were litigated. These
words do not fall under either category. The word “aggressive” is considered a
compliment by many, if not most, people. Lawyers get hired on the basis of having a
reputation for being aggressive. This is true of Stutz attorneys. Exhibit 4 contains a
San Diego Union Tribune May 23, 2009 article about Leslie Devaney’s reputation as
“tough” and “aggressive”. Did the SDUT defame Leslie Devaney? Of course not. The
idea is silly. One person’s aggressive is another person’s reckless. These are words
without specific, legalistic meanings. They cannot be defamatory per se. If one lawyer
doesn’t like another lawyer’s tactics, he may leave the firm without accusing his erstwhile
partners of unethical behavior. To say that a lawyer has done this is not defamatory.
Case law allows figurative speech in political comment. Hyperbole is allowed; the point is
that the public has a right to discuss the tactics of public entities. Public entities are
legally responsible for their lawyers’ tactics. Plaintiff’s statement on page 6, lines 18- 19
of the motion states, “Such statements clearly accuse SASH of illegal conduct or
violations of law, unethical conduct, or lack of professional competence.” Plaintiff is
wrong. These statements do no such thing. Broadly accepted tactics are being
discussed. Stutz might be at one end of a continuum of aggressive tactics, but the entire
continuum is accepted as appropriate by the legal establishment.
(2) Issue: Word choice: Is it defamatory to use “cover up” to mean “conceal” ?
The question here is word choice. If a lawyer refuses to allow testimony about events,
refuses to produce documents concerning those events, and denies in court documents
that those events took place, is it defamatory to say that the lawyer is covering up
events? Of course not. This statement is a simple fact.
One of the services that lawyers provide to public entities is to prevent employees from
revealing information, even in depositions. But this is not to say the lawyers are
unethical. A clear example of a judge recently deciding that this precise behavior by this
precise Plaintiff is legally acceptable occurred in the Jade Ray v. Heather Hargett case.
In his tentative ruling (Exhibit 3) the judge said Plaintiff plaintiff believed it was “protecting
the privacy rights of the District’s employees and students.” Clearly, a lawyer can cover
up events without being unethical.
If Plaintiff thinks this is illegal or unethical, then it is free to behave differently. I am not
saying it is illegal or unethical. I’m just saying that’s how schools in SDCOE-JPA operate.
Since Shinoff trains the officials that he will likely later be working with on court case, the
training helps keep Stutz and its clients on the same page. They agree to keep events in
schools away from the prying eyes of the law. That’s what insurance companies pay
Plaintiff to do.
(3) Issue: Political and factual speech about public figure Leslie Devaney
It appears that Plaintiff may be trying to confuse and mislead the court. Plaintiff’s
statement on page 8 line 14 of this motion, that Defendant’s website contains the words
“friends who are still in the city attorney’s office may have collaborated in those crimes” is
false. See page 9 of Plaintiff’s exhibit B. Defendant’s site says “actions” not “crimes.”
Regarding the rest of the text in dispute, The statements made by defendant about
Leslie Devaney are simple facts: she was second in command when the city made deals
that the SEC and FBI investigated. There is no statement that Leslie Devaney is
unethical, incompetent or any of the attributes specifically listed as disallowed by the
injunction.
Interestingly, Leslie Devaney can dish it out, but she can’t seem to take it. Leslie
Devaney is a public figure who ran for the office of City Attorney of San Diego in 2004
and who continues to invite attention and comment by making widely-published
derogatory virtually identical to statements this court has identified as defamatory
(“Aguirre has engaged in unethical legal practices…”) (Exhibit 4, “The Collateral Damage
of Aguirre's Furies” by Leslie Devaney, published in Voice of San Diego on Monday,
December 12, 2005.) In Exhibit 6, “Aguirre’s Foes Search for a Champion” Devaeny is
quoted as saying she may run for office in the future. Devaney is trying to piggyback on
this court’s finding that other Stutz lawyers are not public figures, but she is clearly a
public figure. The court needs to make a separate determination about Leslie Devaney’s
status if the court finds that these statements are within the purview of the injunction.
It seems that Ms. Devaney does not understand that I have as much right as she does to
free political speech outside the specific limits of the injunction. This lawsuit has only
limited me from making certain statements. I still have the right to report facts and
political opinions other than those listed in the injunction.
(4) Issue: Throwing parents in jail and leaving them there, even though they
have violated no law
This statement is the sad truth: “One of Daniel Shinoff’s specialties is
destroying the lives of parents who complain.” It is not defamatory. It is also a
matter of great public interest and importance. Schools try to break,
psychologically and financially, parents who complain too much. Here are
examples:
a) David Alberts spent a week in jail because he complained about a coach. He
was never charged.
b) Claudia Houston spent a week in jail because she had no one to bail her out;
she was never charged, but lost her home to legal fees. When other inmates
asked her why she was in jail, she told them: “Special Education.” Her fatherless children
were home alone. The school alleged that Claudia disturbed a school meeting. I believe
that the school officials were coached to wildly exaggerate the facts to destroy the
reputation of a parent who complained. This precise action was taken in the instant
defamation case. Stuz filed a request for restraining order on behalf of SDCOE because
I tried to serve Dianne Crosier with a subpoena (Exhibit __) You would think that the
request would have been made right away if employees were actually afraid of me.
Instead, it was created on the date that the summary judgment was issued in the instant
case. It was one of Stutz’ tactics, as mentioned in issue #1 above, that some people can’t
stomach. The intent was to intimidate me and damage my reputation. The tactic failed
when a judge dismissed the request outright.
c) A $25,000 warrant was issued for Lindsey Stewart’s arrest, and a plan was
hatched to arrest her at a school meeting about her son!
(5) Issue: A letter written by Defendant about throwing parents in jail and
leaving them there, even though they have violated no law
This issue is closely related to issue #4.
There are two parts to Plaintiff’s issue #5.
(A) David Alberts was a parent who complained about a coach so the school had him
jailed for a week. Alberts was never charged with wrongdoing. Plaintiff lawyer Daniel
Shinoff was advising the school district during that week. There is nothing defamatory in
these statements. They are simply fact, and are certainly matters of public interest that
should not be censored. In response to Plaintiff’s request, I blanked out two entire
paragraphs of the text of this letter. There is nothing defamatory in the remaining text.
Plaintiff is trying to hide important information about how it advises schools.
(B) Plaintiff’s clients at Castle Park Elementary School engaged in a very public attack
against Lowell Billings (Exhibit 7), the superintendent of the very district that was paying
Stutz to defend them! Stutz lawyer Kelly Angell was apparently furious that her clients
were transferred out of Castle Park Elementary School, because it makes it look like they
were guilty of the bad behavior cited by Defendant against her lawsuit against them.
(6) Issue: The Holocaust Hoax and Anti-Semitism accusation
In this litigation Dan Shinoff perpetrated a hoax, saying that his parent was the only
survivor of the Holocaust in his family. He used this hoax to bestow authority on himself
to accuse me of anti-Semitism because I asked Shinoff’s rabbi to mediate between me
and Mr. Shinoff. The idea that someone would create a huge website about school
problems because that person was anti-Semitic is preposterous. I was pleased on April
6, 2009 when Judge Hayes reversed her decision that I made statements about Mr.
Shinoff out of malice regarding his religion. There is nothing in the injunction that
prevents me from asking if Mr. Shinoff holds anything sacred. It’s a fair question. It is in
no way, shape or form an attack on Mr. Shinoff’s heritage, but a shocked protest at Mr.
Shinoff’s use and abuse of others’ immeasurable suffering to serve his own ugly
purposes. If he weren’t making these statements in court, they would be defamatory.
(7) Issue: Dan Shinoff fools the Office of Civil Rights
Isn’t a lawyer a big success when he fools people? Isn’t that his job? Quite a bit of
fudging seems to be necessary to run schools. We hear about it all the time. Money that’
s supposed to be used for one thing is used for another. I stand by my claim that Dan
Shinoff passed out a booklet to employees about adult-on-adult harassment, then told
the office of Civil Rights that he had done training regarding student bullying. Since
“intimidation” is one of the forbidden words in the injunction, I have changed the phrase
“uses the courts to bully honest people” to “uses the courts to try to force honest people
to change their statements.” This statement refers to Vista Unified School District v. Dr. B.
J. Freeman, in which a school district sued a doctor because she said a student was
qualified for special education. The doctor refused to back down, and Stutz lost the
case. There is no defamation in these passages. The school officials acted in a certain
way, and the Office of Civil Rights took them at their word. This sort of statement needs
to be made if there is ever going to be any improvement in education in this country. We
have a crisis of enormous proportions, and the public has a right to discuss the facts.
Some leeway is allowed in such discussion. Figurative language helps readers
understand the message. Isn’t it the job of lawyers to fool all sorts of people? It is
certainly NOT considered unethical within the legal profession.
(8) Issue: Plaintiff is correct in this issue; I apologize and I have removed the
word “intimidate” from the offending passage
I apologize. I missed this violation of the injunction. I have removed the word “intimidate”
from the offending passage. I must say that it would be easier for me to find and correct
these legitimate complaints if they weren’t hidden within a haystack of bogus complaints.
(9) Issue: “I’ve noticed that Ms. Devaney and her law firm are fond of using the
threat of jail against opponents in civil matters.”
This is a statement of fact. In late December 2008 or early January 2009 Leslie Devaney
reported to the District Attorney’s office that the Tri-City Healthcare board had committed
what Devaney felt was a misdemeanor violation of the Brown Act. Apparently Devaney
also reported board member Kathleen Sterling for trying to recruit a supporter to become
a board member. Devaney provided the District Attorney with phone message
recordings to bolster her allegations.
The injunction forbids me from saying that this action was unethical or illegal, but I wouldn’
t want to say such a thing. It is Plaintiff who says that Devaney’s action might be illegal,
not me. I don’t think Devaney’s action was unethical or illegal. Devaney is allowed to
report what she believes is a crime. Also, Devaney is representing private parties in this
case, and I believe private parties should have more freedom to use aggressive tactics
against their opponents in court. I am more critical of aggressive tactics used on behalf
of public entities against the very people they are supposed to serve, and from whom
they derive their power and authority--and finances!
I am simply noting the tactics used by Stutz law firm, and using words with meanings
permitted in political speech. When Devaney presented information about the December
18, 2008 board meeting of Tri-City Healthcare to District Attorney Bonnie Dumanis, she
was clearly injecting the threat of jail into a civil matter. It is Plaintiff, not Defendant, who
is calling Leslie Devaney’s actions “intimidation” and “unethical, unprofessional and
potentially illegal”. Does Plaintiff claim that I am not allowed to write that Devaney gave
information about board members to the District Attorney, and then stood in front of an
angry crowd accusing board members of criminal actions? This is ridiculous. Plaintiff
does not have the right to prevent simple facts from being reported.
The following newspaper articles report the facts of this issue:
“Legality of Tri-City meeting disputed” by Michael Burge, San Diego Union-
Tribune, January 16, 2009 (Exhibit 8).
“Devaney is demanding that the eight administrators be reinstated and that they be
protected from retaliation. She said that she recently contacted Assistant District
Attorney Jesse Rodriguez about the possible violations, and that a member of the District
Attorney's Special Operations Office called her to discuss them. Paul Levikow,
spokesman for District Attorney Bonnie Dumanis, said he couldn't comment on whether
an investigation is taking place.”…Violations of the Brown Act constitute a misdemeanor,
but Francke said that no state official has ever been prosecuted. Board members usually
take a new vote to correct the errors they made.
“Tri-City's Sterling suggests seat on board for supporter” SAN DIEGO UNION-
TRIBUNE January 9, 2009 (Exhibit 9)
“Devaney said she gave copies of the messages to the District Attorney's Office. Former
district attorney Paul Pfingst said Sterling's calls do not appear to be illegal.
“If you think somebody may go and you think someone may apply, that's legal,” Pfingst
said. “It's not guaranteeing a spot, but soliciting candidates for a position. There's
nothing wrong with that.”
Devaney's action reminded me of previous instances in which opponents of Stutz law
firm suddenly found themselves in jail or worrying about the possibility. Claudia Houston,
David Alberts, and Lindsey Stewart were parents who complained to schools and then
ended up in jail, or with warrants issued against them, but were not charged with
wrongdoing. In these cases, Stutz lawyer Daniel Shinoff was advising the school district
(see issue #4).
I am not saying that Devaney's action was unethical. I think Devaney has a right to report
a crime if she thinks one occurred. Obviously, the people she reported are going to
spend some time worrying about the possibility that they could go to jail. It's an
aggressive tactic when used against an opponent in a civil matter, but I think Devaney
has worked hard to earn her reputation as a highly aggressive lawyer (see below). I think
she's proud of that reputation.
Leslie Devaney is either an all-purpose public figure or a limited purpose public figure.
Leslie Devaney invites attention and comment. She spoke to the press. She became a
board member of CALA and appeared as a host on a cable TV program promoting
CALA. As with public officials, the passage of time does not cause this class of
individuals to lose their public figure status as long as the original source of their fame is
of continued interest to the public. VOSD article Exhibits 5 and 6 show that she
continues to be of interest, and continues to consider running for public office. All-
purpose public figures are those whose fame reaches widely and pervasively throughout
society. Passage of time does not affect their status as public figures as long as the
source of their fame is of continued interest to the public. A limited-purpose public figure
is either One who voluntarily becomes a key figure in a particular controversy, or one
who has gained prominence in a particular, limited field, but whose celebrity has not
reached an all-encompassing level.
Defendant requests that Judge Hayes recuse herself from the issues concerning Leslie
Devaney (numbers 3, 8 and 9—although 8 is moot since it’s already been changed)
since Leslie Devaney’s husband Frank is a colleague of the judge. Moreover, Defendant
requests that Judge Hayes recuse herself from the other issues as well, since Leslie
Devaney and Plaintiff, the law firm in which she is a partner, are so closely linked.
Defendant has cooperated in obeying the injunction
Plaintiff is incorrect in stating that Defendant has refused to remove offending
statements. Defendant has worked hard to remove all offending statements.
Defendant made a large number of changes in response to Stutz first letter. But Stutz
was not satisfied with the changes. In its motion, Stutz is asking that Defendant be forced
to remove statements that are clearly protected by the First Amendment, are not
defamatory, are true and necessary to public debate in a democracy. Stutz has also
failed to keep up with all the changes made by Plaintiff, all of the legitimate requests by
Stutz have been accommodated.
Respectfully submitted,
DATED: July 27, 2009
Maura Larkins, Defendant in pro per
Exhibit 2 The Schoolhouse Lawyer Who Helped Hire His Overseer
Exhibit 3 Jade Ray v. Heather Hargett tentative ruling
Exhibit 4 San Diego Union Tribune May 23, 2009 article about Leslie
Devaney being "tough" and "aggressive"
Exhibit 5 December 12, 2005 article by Leslie Devaney
Exhibit 6 June 11, 2007 article about Leslie Devaney possibly running
for office again
Exhibit 7 Newspaper articles about Stutz clients attacking CVESD
Exhibit 8 “Legality of Tri-City meeting disputed” by Michael Burge,
San Diego Union-Tribune, January 16, 2009
Exhibit 9 “Tri-City's Sterling suggests seat on board for supporter”
SAN DIEGO UNION-TRIBUNE January 9, 2009
I. The main issue in the instant motion is freedom of speech
I am forbidden by the injunction from revealing certain conclusions I might draw about
Stutz’ actions, but the First Amendment of the US Constitution as well as the California
Constitution protects my right to report facts and political opinion other than the opinions
prohibited by the injunction.
In the instant motion Plaintiff is asking the court to violate the First Amendment to the
Constitution, which was given the top spot on the Bill of Rights because it is the most
important. Plaintiff is also asking the court to violate the Constitution of California, Article
1 Section 2 (a) Every person may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press.
A. Opinion and Fair Comment Privileges
The right to speak guaranteed by the First Amendment to the U.S. Constitution includes
the right to voice opinions, criticize others, and comment on matters of public interest. It
also protects the use of hyperbole and extreme statements when it is clear these are
rhetorical ploys. Accordingly, you can safely state your opinion that others are inept,
stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings
or diminish their reputations. Such terms represent what is called "pure opinions"
because they can't be proven true or false. As a result, they cannot form the basis for a
defamation claim.
B. Substantial Truth
"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan,
376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff
has to provide convincing evidence of a defamatory statement's falsity in order to prove
defamation. The law does not require that a statement must be perfectly accurate in
every conceivable way to be considered "true." Courts have said that some false
statements must be protected for the wider purpose of allowing the dissemination of
truthful speech. The resulting doctrine is known as "substantial truth." Under the
substantial truth doctrine, minor factual inaccuracies will be ignored so long as the
inaccuracies do not materially alter the substance or impact of what is being
communicated. In other words, only the "gist" or "sting" of a statement must be correct.
The substantial truth defense is particularly powerful because a judge will often grant
summary judgment in favor of a defendant (thus disposing of the case before it goes to
trial) if the defendant can show that the statement the plaintiff is complaining about is
substantially true, making the defense a quick and relatively easy way to get out of a long
(and potentially expensive) defamation case. Substantial truth can also be a flashpoint
for libel cases involving public figures and officials who must show actual malice by the
defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991),
the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The
Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes
and translating from recordings and the need to edit a speaker's comments into a
coherent statement. The Court stated: We conclude that a deliberate alteration of the
words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New
York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results
in a material change in the meaning conveyed by the statement.
II. The injunction in this case disallows certain opinions but does not disallow all opinions,
and certainly does not disallow statements of fact
The permanent injunction issued in this case forbids Defendant to publish any statement
saying that Plaintiff is unethical or incompetent, or that Plaintiff engages in illegal acts or
intimidation. Plaintiff understands this very well. I told Mr. Holtz and Mr. Wade on April 6,
2009 that I voluntarily agreed to refrain from saying that Plaintiff violated the law or was
unethical or incompetent or intimidating, but that I intended to continue to report facts
about their law firm. Plaintiff is now trying to milk the agreement/injunction for more than
it is. Plaintiff wants the court to rule that defendant can never report on her website any
action by Stutz of which Stutz is not proud.
The injunction does not allow Plaintiff to completely silence Defendant. For example, if a
Stutz lawyer were to come to Defendant’s house and shoot her dog, the injunction would
prevent her from saying, “A Stutz lawyer committed a crime.” However, the injunction
would not prevent her from saying, “A Stutz lawyer shot my dog.” Plaintiff wants the court
to rule that Defendant could not even say, “A Stutz lawyer shot my dog.” Such a ruling
would violate the constitutions of California and the United States.
III. The injunction must be enforced fairly.
What more does this Plaintiff want from this court? Wasn’t it enough that the court
allowed Plaintiff to avoid depositions and production of documents and threw out
Defendant’s entire declaration without comment and relied entirely on the declaration of
Plaintiff Daniel Shinoff to allow Plaintiff to prevail in this case? Plaintiff wants the First
Amendment of the Constitution to be overridden by this court in regard to Defendant and
her website. Plaintiff is a highly visible public entity law firm that does not want the public
to know the simple facts about its actions on behalf of public entities.
And now Plaintiff wants to sneak in a new individual, one who has never been mentioned
in pleadings over the past 21 months, under the protection of the court’s public figure
decision. The court ruled that being a Stutz lawyer does not constitute being a public
figure. However, a woman who very recently ran for City Attorney of San Diego, and has
said she may run again, is not covered by this ruling simply because she is a partner at
Stutz. The actions of such a person are clearly of concern to the public, and the public—
including Defendant--has a right to comment on them.
The decision in this case was achieved without any consideration of evidence offered by
defendant. The court relied on the declaration of Dan Shinoff, who refused to be
deposed or to produce documents. At the same time, the court tossed out, without
comment, the declaration of defendant, who submitted to a six-hour deposition and
produced hundreds of pages of documents.
IV. It is not a violation of the injunction to discuss Plaintiff’s tactics or to use
words with general meanings, or even hyperbole, in political speech
Plaintiff won its lawsuit, and it’s still not happy, but the court does not have the authority
to restrict legal speech. Defendant has a right to discuss the tactics used in court cases
by public entity lawyers. Within the broad range of lawyer tactics, there is plenty of room
for disagreement without committing defamation. Disagreement about how to proceed in
a court case does not mean that anyone is being accused of unethical conduct.
Plaintiff has ventured far out of the limited purview of the injunction to make this demand,
asking that Defendant to be forbidden from making any criticism of any kind against the
law firm that is paid over a million dollars a year by taxpayers. Approximately one million
of that money is paid by San Diego County Office of Education, which has illegally
injected itself into this lawsuit. SDCOE paid Plaintiff to request a restraining order against
Defendant for trying to serve a deposition subpoena on Diane Crosier, the executive
director of Risk Management at SDCOE (Exhibit 1). This law firm and its relationship to
SDCOE has been discussed in the media. For example, Voice of San Diego published
the article “The Schoolhouse Lawyer Who Helped Hire His Overseer” on March 2, 2009
(Exhibit 2).
V. Defendant responds as follows to Plaintiff’s numbered issues:
(1) Issue: Plaintiff’s tactics; Robert Gallagher
As requested by Plaintiff’s May 1, 2009 letter (Plaintiff’s exhibit C), Defendant removed
the words “intimidation” and “extreme lack of ethics” from her web article about Robert
Gallagher. Now Plaintiff wants the words “couldn’t stomach the tactics being used by the
firm” and “reckless” and “aggressive” removed also. Plaintiff is ignoring the fact that the
injunction refers to defamation per se and specific statements that were litigated. These
words do not fall under either category. The word “aggressive” is considered a
compliment by many, if not most, people. Lawyers get hired on the basis of having a
reputation for being aggressive. This is true of Stutz attorneys. Exhibit 4 contains a
San Diego Union Tribune May 23, 2009 article about Leslie Devaney’s reputation as
“tough” and “aggressive”. Did the SDUT defame Leslie Devaney? Of course not. The
idea is silly. One person’s aggressive is another person’s reckless. These are words
without specific, legalistic meanings. They cannot be defamatory per se. If one lawyer
doesn’t like another lawyer’s tactics, he may leave the firm without accusing his erstwhile
partners of unethical behavior. To say that a lawyer has done this is not defamatory.
Case law allows figurative speech in political comment. Hyperbole is allowed; the point is
that the public has a right to discuss the tactics of public entities. Public entities are
legally responsible for their lawyers’ tactics. Plaintiff’s statement on page 6, lines 18- 19
of the motion states, “Such statements clearly accuse SASH of illegal conduct or
violations of law, unethical conduct, or lack of professional competence.” Plaintiff is
wrong. These statements do no such thing. Broadly accepted tactics are being
discussed. Stutz might be at one end of a continuum of aggressive tactics, but the entire
continuum is accepted as appropriate by the legal establishment.
(2) Issue: Word choice: Is it defamatory to use “cover up” to mean “conceal” ?
The question here is word choice. If a lawyer refuses to allow testimony about events,
refuses to produce documents concerning those events, and denies in court documents
that those events took place, is it defamatory to say that the lawyer is covering up
events? Of course not. This statement is a simple fact.
One of the services that lawyers provide to public entities is to prevent employees from
revealing information, even in depositions. But this is not to say the lawyers are
unethical. A clear example of a judge recently deciding that this precise behavior by this
precise Plaintiff is legally acceptable occurred in the Jade Ray v. Heather Hargett case.
In his tentative ruling (Exhibit 3) the judge said Plaintiff plaintiff believed it was “protecting
the privacy rights of the District’s employees and students.” Clearly, a lawyer can cover
up events without being unethical.
If Plaintiff thinks this is illegal or unethical, then it is free to behave differently. I am not
saying it is illegal or unethical. I’m just saying that’s how schools in SDCOE-JPA operate.
Since Shinoff trains the officials that he will likely later be working with on court case, the
training helps keep Stutz and its clients on the same page. They agree to keep events in
schools away from the prying eyes of the law. That’s what insurance companies pay
Plaintiff to do.
(3) Issue: Political and factual speech about public figure Leslie Devaney
It appears that Plaintiff may be trying to confuse and mislead the court. Plaintiff’s
statement on page 8 line 14 of this motion, that Defendant’s website contains the words
“friends who are still in the city attorney’s office may have collaborated in those crimes” is
false. See page 9 of Plaintiff’s exhibit B. Defendant’s site says “actions” not “crimes.”
Regarding the rest of the text in dispute, The statements made by defendant about
Leslie Devaney are simple facts: she was second in command when the city made deals
that the SEC and FBI investigated. There is no statement that Leslie Devaney is
unethical, incompetent or any of the attributes specifically listed as disallowed by the
injunction.
Interestingly, Leslie Devaney can dish it out, but she can’t seem to take it. Leslie
Devaney is a public figure who ran for the office of City Attorney of San Diego in 2004
and who continues to invite attention and comment by making widely-published
derogatory virtually identical to statements this court has identified as defamatory
(“Aguirre has engaged in unethical legal practices…”) (Exhibit 4, “The Collateral Damage
of Aguirre's Furies” by Leslie Devaney, published in Voice of San Diego on Monday,
December 12, 2005.) In Exhibit 6, “Aguirre’s Foes Search for a Champion” Devaeny is
quoted as saying she may run for office in the future. Devaney is trying to piggyback on
this court’s finding that other Stutz lawyers are not public figures, but she is clearly a
public figure. The court needs to make a separate determination about Leslie Devaney’s
status if the court finds that these statements are within the purview of the injunction.
It seems that Ms. Devaney does not understand that I have as much right as she does to
free political speech outside the specific limits of the injunction. This lawsuit has only
limited me from making certain statements. I still have the right to report facts and
political opinions other than those listed in the injunction.
(4) Issue: Throwing parents in jail and leaving them there, even though they
have violated no law
This statement is the sad truth: “One of Daniel Shinoff’s specialties is
destroying the lives of parents who complain.” It is not defamatory. It is also a
matter of great public interest and importance. Schools try to break,
psychologically and financially, parents who complain too much. Here are
examples:
a) David Alberts spent a week in jail because he complained about a coach. He
was never charged.
b) Claudia Houston spent a week in jail because she had no one to bail her out;
she was never charged, but lost her home to legal fees. When other inmates
asked her why she was in jail, she told them: “Special Education.” Her fatherless children
were home alone. The school alleged that Claudia disturbed a school meeting. I believe
that the school officials were coached to wildly exaggerate the facts to destroy the
reputation of a parent who complained. This precise action was taken in the instant
defamation case. Stuz filed a request for restraining order on behalf of SDCOE because
I tried to serve Dianne Crosier with a subpoena (Exhibit __) You would think that the
request would have been made right away if employees were actually afraid of me.
Instead, it was created on the date that the summary judgment was issued in the instant
case. It was one of Stutz’ tactics, as mentioned in issue #1 above, that some people can’t
stomach. The intent was to intimidate me and damage my reputation. The tactic failed
when a judge dismissed the request outright.
c) A $25,000 warrant was issued for Lindsey Stewart’s arrest, and a plan was
hatched to arrest her at a school meeting about her son!
(5) Issue: A letter written by Defendant about throwing parents in jail and
leaving them there, even though they have violated no law
This issue is closely related to issue #4.
There are two parts to Plaintiff’s issue #5.
(A) David Alberts was a parent who complained about a coach so the school had him
jailed for a week. Alberts was never charged with wrongdoing. Plaintiff lawyer Daniel
Shinoff was advising the school district during that week. There is nothing defamatory in
these statements. They are simply fact, and are certainly matters of public interest that
should not be censored. In response to Plaintiff’s request, I blanked out two entire
paragraphs of the text of this letter. There is nothing defamatory in the remaining text.
Plaintiff is trying to hide important information about how it advises schools.
(B) Plaintiff’s clients at Castle Park Elementary School engaged in a very public attack
against Lowell Billings (Exhibit 7), the superintendent of the very district that was paying
Stutz to defend them! Stutz lawyer Kelly Angell was apparently furious that her clients
were transferred out of Castle Park Elementary School, because it makes it look like they
were guilty of the bad behavior cited by Defendant against her lawsuit against them.
(6) Issue: The Holocaust Hoax and Anti-Semitism accusation
In this litigation Dan Shinoff perpetrated a hoax, saying that his parent was the only
survivor of the Holocaust in his family. He used this hoax to bestow authority on himself
to accuse me of anti-Semitism because I asked Shinoff’s rabbi to mediate between me
and Mr. Shinoff. The idea that someone would create a huge website about school
problems because that person was anti-Semitic is preposterous. I was pleased on April
6, 2009 when Judge Hayes reversed her decision that I made statements about Mr.
Shinoff out of malice regarding his religion. There is nothing in the injunction that
prevents me from asking if Mr. Shinoff holds anything sacred. It’s a fair question. It is in
no way, shape or form an attack on Mr. Shinoff’s heritage, but a shocked protest at Mr.
Shinoff’s use and abuse of others’ immeasurable suffering to serve his own ugly
purposes. If he weren’t making these statements in court, they would be defamatory.
(7) Issue: Dan Shinoff fools the Office of Civil Rights
Isn’t a lawyer a big success when he fools people? Isn’t that his job? Quite a bit of
fudging seems to be necessary to run schools. We hear about it all the time. Money that’
s supposed to be used for one thing is used for another. I stand by my claim that Dan
Shinoff passed out a booklet to employees about adult-on-adult harassment, then told
the office of Civil Rights that he had done training regarding student bullying. Since
“intimidation” is one of the forbidden words in the injunction, I have changed the phrase
“uses the courts to bully honest people” to “uses the courts to try to force honest people
to change their statements.” This statement refers to Vista Unified School District v. Dr. B.
J. Freeman, in which a school district sued a doctor because she said a student was
qualified for special education. The doctor refused to back down, and Stutz lost the
case. There is no defamation in these passages. The school officials acted in a certain
way, and the Office of Civil Rights took them at their word. This sort of statement needs
to be made if there is ever going to be any improvement in education in this country. We
have a crisis of enormous proportions, and the public has a right to discuss the facts.
Some leeway is allowed in such discussion. Figurative language helps readers
understand the message. Isn’t it the job of lawyers to fool all sorts of people? It is
certainly NOT considered unethical within the legal profession.
(8) Issue: Plaintiff is correct in this issue; I apologize and I have removed the
word “intimidate” from the offending passage
I apologize. I missed this violation of the injunction. I have removed the word “intimidate”
from the offending passage. I must say that it would be easier for me to find and correct
these legitimate complaints if they weren’t hidden within a haystack of bogus complaints.
(9) Issue: “I’ve noticed that Ms. Devaney and her law firm are fond of using the
threat of jail against opponents in civil matters.”
This is a statement of fact. In late December 2008 or early January 2009 Leslie Devaney
reported to the District Attorney’s office that the Tri-City Healthcare board had committed
what Devaney felt was a misdemeanor violation of the Brown Act. Apparently Devaney
also reported board member Kathleen Sterling for trying to recruit a supporter to become
a board member. Devaney provided the District Attorney with phone message
recordings to bolster her allegations.
The injunction forbids me from saying that this action was unethical or illegal, but I wouldn’
t want to say such a thing. It is Plaintiff who says that Devaney’s action might be illegal,
not me. I don’t think Devaney’s action was unethical or illegal. Devaney is allowed to
report what she believes is a crime. Also, Devaney is representing private parties in this
case, and I believe private parties should have more freedom to use aggressive tactics
against their opponents in court. I am more critical of aggressive tactics used on behalf
of public entities against the very people they are supposed to serve, and from whom
they derive their power and authority--and finances!
I am simply noting the tactics used by Stutz law firm, and using words with meanings
permitted in political speech. When Devaney presented information about the December
18, 2008 board meeting of Tri-City Healthcare to District Attorney Bonnie Dumanis, she
was clearly injecting the threat of jail into a civil matter. It is Plaintiff, not Defendant, who
is calling Leslie Devaney’s actions “intimidation” and “unethical, unprofessional and
potentially illegal”. Does Plaintiff claim that I am not allowed to write that Devaney gave
information about board members to the District Attorney, and then stood in front of an
angry crowd accusing board members of criminal actions? This is ridiculous. Plaintiff
does not have the right to prevent simple facts from being reported.
The following newspaper articles report the facts of this issue:
“Legality of Tri-City meeting disputed” by Michael Burge, San Diego Union-
Tribune, January 16, 2009 (Exhibit 8).
“Devaney is demanding that the eight administrators be reinstated and that they be
protected from retaliation. She said that she recently contacted Assistant District
Attorney Jesse Rodriguez about the possible violations, and that a member of the District
Attorney's Special Operations Office called her to discuss them. Paul Levikow,
spokesman for District Attorney Bonnie Dumanis, said he couldn't comment on whether
an investigation is taking place.”…Violations of the Brown Act constitute a misdemeanor,
but Francke said that no state official has ever been prosecuted. Board members usually
take a new vote to correct the errors they made.
“Tri-City's Sterling suggests seat on board for supporter” SAN DIEGO UNION-
TRIBUNE January 9, 2009 (Exhibit 9)
“Devaney said she gave copies of the messages to the District Attorney's Office. Former
district attorney Paul Pfingst said Sterling's calls do not appear to be illegal.
“If you think somebody may go and you think someone may apply, that's legal,” Pfingst
said. “It's not guaranteeing a spot, but soliciting candidates for a position. There's
nothing wrong with that.”
Devaney's action reminded me of previous instances in which opponents of Stutz law
firm suddenly found themselves in jail or worrying about the possibility. Claudia Houston,
David Alberts, and Lindsey Stewart were parents who complained to schools and then
ended up in jail, or with warrants issued against them, but were not charged with
wrongdoing. In these cases, Stutz lawyer Daniel Shinoff was advising the school district
(see issue #4).
I am not saying that Devaney's action was unethical. I think Devaney has a right to report
a crime if she thinks one occurred. Obviously, the people she reported are going to
spend some time worrying about the possibility that they could go to jail. It's an
aggressive tactic when used against an opponent in a civil matter, but I think Devaney
has worked hard to earn her reputation as a highly aggressive lawyer (see below). I think
she's proud of that reputation.
Leslie Devaney is either an all-purpose public figure or a limited purpose public figure.
Leslie Devaney invites attention and comment. She spoke to the press. She became a
board member of CALA and appeared as a host on a cable TV program promoting
CALA. As with public officials, the passage of time does not cause this class of
individuals to lose their public figure status as long as the original source of their fame is
of continued interest to the public. VOSD article Exhibits 5 and 6 show that she
continues to be of interest, and continues to consider running for public office. All-
purpose public figures are those whose fame reaches widely and pervasively throughout
society. Passage of time does not affect their status as public figures as long as the
source of their fame is of continued interest to the public. A limited-purpose public figure
is either One who voluntarily becomes a key figure in a particular controversy, or one
who has gained prominence in a particular, limited field, but whose celebrity has not
reached an all-encompassing level.
Defendant requests that Judge Hayes recuse herself from the issues concerning Leslie
Devaney (numbers 3, 8 and 9—although 8 is moot since it’s already been changed)
since Leslie Devaney’s husband Frank is a colleague of the judge. Moreover, Defendant
requests that Judge Hayes recuse herself from the other issues as well, since Leslie
Devaney and Plaintiff, the law firm in which she is a partner, are so closely linked.
Defendant has cooperated in obeying the injunction
Plaintiff is incorrect in stating that Defendant has refused to remove offending
statements. Defendant has worked hard to remove all offending statements.
Defendant made a large number of changes in response to Stutz first letter. But Stutz
was not satisfied with the changes. In its motion, Stutz is asking that Defendant be forced
to remove statements that are clearly protected by the First Amendment, are not
defamatory, are true and necessary to public debate in a democracy. Stutz has also
failed to keep up with all the changes made by Plaintiff, all of the legitimate requests by
Stutz have been accommodated.
Respectfully submitted,
DATED: July 27, 2009
Maura Larkins, Defendant in pro per
MAURA LARKINS
Defendant in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
STUTZ ARTIANO SHINOFF
& HOLTZ, APC,
Plaintiff,
vs.
MAURA LARKINS,
and DOES 1 through 100, inclusive,
_________________________________
Defendant in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
STUTZ ARTIANO SHINOFF
& HOLTZ, APC,
Plaintiff,
vs.
MAURA LARKINS,
and DOES 1 through 100, inclusive,
_________________________________
) Case No. 37-2007-00076218-CU-DF-CTL
) Judge: Hon. Judith F. Hayes
) Dept: 68
) Date August 7, 2008 10:30 a.m.
)
) DEFENDANT’S POINTS AND
) AUTHORITIES IN OPPOSITION
) TO PLAINTIFF’S AMENDED
) MOTION TO ENFORCE PERMANENT
) INJUNCTION
)
)
EXHIBIT LIST
) Judge: Hon. Judith F. Hayes
) Dept: 68
) Date August 7, 2008 10:30 a.m.
)
) DEFENDANT’S POINTS AND
) AUTHORITIES IN OPPOSITION
) TO PLAINTIFF’S AMENDED
) MOTION TO ENFORCE PERMANENT
) INJUNCTION
)
)
EXHIBIT LIST
| Maura Larkins Opposition to Stutz' Motion to Enforce Injunction |
| Court ruling on this motion. (The tentative ruling is now final.) |