IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
DEPARTMENT NO. 68 HON. JUDITH F. HAYES, JUDGE
STUTZ ARTIANO SHINOFF & HOLTZ, )
)
)
PLAINTIFFS, )
)
VS. )
) CASE NO. 37-2007-
MAURA LARKINS, ) 00076218-CU-DF-CTL
)
DEFENDANT. )
_______________________________)
REPORTER'S TRANSCRIPT
APRIL 6, 2009
A P P E A R A N C E S:
FOR THE PLAINTIFF: STUTZ ARTIANO SHINOFF & HOLTZ
BY: JAMES F. HOLTZ, ESQ.
AND JEFFREY P. WADE, JR., ESQ.
ATTORNEYS AT LAW
FOR THE DEFENDANT: IN PROPRIA PERSONA
MARVEL S. VOTAW, RPR, CRR, CSR NO. 2817
OFFICIAL REPORTER
SAN DIEGO SUPERIOR COURT
SAN DIEGO, CALIFORNIA 92101
101
SAN DIEGO, CALIFORNIA - MONDAY - 4/6/2009 - 9:55 A.M.
6 THE COURT: STUTZ, ARTIANO, SHINOFF & HOLTZ VERSUS
7 LARKINS.
8 WE HAVE A PRELIMINARY MATTER TO DISCUSS. I
9 HAVE A QUESTION CONCERNING YOUR REPRESENTATION THAT THE
10 COURT HAD FOUND MALICE, AND WE WERE ONLY PROCEEDING AS TO
11 THE AMOUNT OF DAMAGES.
12 I WENT BACK TO THE ORIGINAL FINDING OF THE
13 COURT BASED ON YOUR MOTION FOR SUMMARY ADJUDICATION.
14 NOWHERE IN OUR SUBMITTED RULING DID I ADDRESS THE ISSUE OF
15 MALICE. IT WAS NOT UNTIL YOU SUBMITTED AN ORDER IN WHICH
16 YOU UNILATERALLY ADDED THAT LANGUAGE. AND THE COURT SIGNED
17 THE ORDER, BUT I'M NOW RESCINDING THAT SIGNING.
18 WHEN YOU SUBMIT A MATTER TO THE COURT -- THIS
19 ISSUE OF MALICE WAS SPECIFICALLY NOT BRIEFED IN YOUR OPENING
20 PAPERS. AND I SHOULD ADD THAT IN YOUR ARGUMENT YOU SAID
21 THAT A FINDING OF MALICE WAS NOT REQUIRED BECAUSE THE
22 PLAINTIFF IS NOT A PUBLIC FIGURE.
23 SO WHAT YOU DID WAS ON A MATTER THAT WAS NOT
24 BRIEFED, NOT ARGUED, ADDED ADDITIONAL MATERIAL TO THE
25 PROPOSED ORDER THAT WAS NOT IN THE COURT'S RULING.
26 SO AT THIS POINT THAT AREA IN THE ORDER IS
27 STRICKEN, AND WE WILL PROCEED ON PUNITIVE DAMAGES. YOU WILL
28 BE REQUIRED TO PROVE FRAUD, MALICE, OR OPPRESSION, AND
102
1 THAT'S WHERE WE ARE.
2 MR. WADE: MAY I ADDRESS THAT POINT, YOUR HONOR?
3 THE COURT: YES.
4 MR. WADE: I APOLOGIZE. IN LOOKING AT OUR POINTS
5 AND AUTHORITIES SUBMITTED TO THE COURT THERE IS A SPECIFIC
6 SECTION ON MALICE.
7 THE COURT: FIND FOR ME, IF YOU WOULD, IN THE
8 SUBMITTED RULING THE AREA WHERE THIS COURT MADE A FINDING ON
9 MALICE.
10 MR. WADE: I'M LOOKING AT THE SEPARATE STATEMENT.
11 I APOLOGIZE. THERE WAS A REFERENCE IN THERE ABOUT MALICE,
12 AND I'M GOING TO TRY TO FIND THE PROPOSED RULING. I
13 APOLOGIZE.
14 I GUESS I WAS LOOKING AT THE TENTATIVE. IT
15 INDICATES THE RULING DOES NOT DISPOSE OF THE ENTIRE ACTION.
16 THE MATTER WILL PROCEED AS TO DAMAGES, PUNITIVES AND
17 INJUNCTIVE RELIEF.
18 THE COURT: WHERE DOES IT SAY THE COURT MAKES A
19 FINDING OF MALICE?
20 MR. WADE: I THOUGHT I ASKED A QUESTION AS FAR AS
21 THE PUNITIVE DAMAGES ISSUE, BECAUSE WE DID BRIEF THE ISSUE
22 OF MALICE TO THIS COURT, AND THE EVIDENCE WAS UNOPPOSED.
23 THE COURT: OKAY. WAIT A MINUTE. WHERE IN THE
24 SUBMITTED RULING DO YOU SEE MENTION OF MALICE?
25 MR. WADE: WELL, I DIDN'T --
26 "THE MATTER WILL PROCEED AS TO DAMAGES, PUNITIVES,
27 AND INJUNCTIVE RELIEF."
28 THE COURT: WHEN YOU'RE PROCEEDING AS TO PUNITIVE
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1 DAMAGES YOU HAVE THE OBLIGATION TO PROVE BY CLEAR AND
2 CONVINCING EVIDENCE FRAUD, OPPRESSION, OR MALICE. WHAT YOU
3 DID WAS ESTABLISHED DEFAMATION BY SUMMARY ADJUDICATION.
4 THERE WAS NO OPPOSITION.
IT WENT FORWARD ON THAT, AND THERE
5 WAS A FINDING THAT YOU HAD ESTABLISHED THAT, BUT YOUR
6 ARGUMENT IN YOUR MOVING PAPERS WAS THAT MALICE WAS NOT AN
7 ELEMENT OF THAT DEFAMATION PER SE, BECAUSE THE PLAINTIFF IS
8 NOT A PUBLIC FIGURE.
9 SO WHAT YOU, IN FACT, DID WAS YOU WENT AFTER
10 THE FACT AND ADDED MALICE INTO YOUR ORDER.
11 MR. WADE: WELL, YOUR HONOR, AT PAGES 8 THROUGH 13
12 OF OUR MOTION THAT WE SUBMITTED WE DIRECTLY ADDRESSED THE
13 ISSUE OF MALICE, AND THERE WAS NO OPPOSITION TO THAT --
14 THE COURT: LET ME GO FORWARD AGAIN AND SEE IF
15 WE'RE ON THE SAME PAGE, BECAUSE WHAT I'M SAYING TO YOU IS
16 THAT WHEN YOU SUMMARILY ADJUDICATED A CAUSE OF ACTION, YOU
17 SUMMARILY ADJUDICATED DEFAMATION PER SE. IS MALICE AN
18 ELEMENT OF DEFAMATION PER SE, WHEN IT INVOLVES A PRIVATE
19 FIGURE?
20 MR. WADE: WHEN PLAINTIFF IS A PUBLIC FIGURE
21 PLAINTIFFS MUST SHOW DEFENDANT ACTED WITH MALICE -- I
22 APOLOGIZE. I'M FLIPPING THROUGH, YOUR HONOR.
23 THE COURT: SEE, YOU DIDN'T SUMMARILY ADJUDICATE
24 DAMAGES, AND THE BURDEN OF PROOF ON PUNITIVE DAMAGES IS
25 CLEAR AND CONVINCING EVIDENCE. THAT'S WHY -- AND IN THE
26 RULING I SAID YOU'RE GOING FORWARD ON PUNITIVE DAMAGES.
27 MR. WADE: I GUESS THE STANDARD WAS THAT MALICE
28 WAS ACTING WITH RECKLESS DISREGARD WHETHER THE STATEMENTS
104
1 WERE TRUE OR NOT, AND THAT WAS ESTABLISHED IN OUR MOVING
2 PAPERS.
3 THE COURT: THE PROBLEM IS -- NO, YOUR ARGUMENT
4 WAS -- WE'RE NOT GOING TO GO BACK AND FORTH ON THIS, BUT
5 YOUR ARGUMENT IS THAT MALICE WAS NOT REQUIRED. THERE WAS NO
6 FINDING OF MALICE. THAT PORTION OF THE ORDER IS STRICKEN.
7 WE GO FORWARD ON PUNITIVE DAMAGES AND ON DAMAGES AS A RESULT
8 OF DEFAMATION. THAT'S WHAT WE'RE GOING TO DO.
9 MR. HOLTZ: I'D LIKE TO INTRODUCE MYSELF. MY NAME
10 IS JAMES HOLTZ OF THE FIRM OF STUTZ, ARTIANO, SHINOFF &
11 HOLTZ.
12 THE COURT: GOOD MORNING.
13 MR. HOLTZ: I HAD A QUESTION ABOUT THE STATUS AS
14 FAR AS THE ISSUE OF INJUNCTIVE RELIEF. IT IS MY BELIEF --
15 THIS MAY HAVE BEEN TOUCHED ON LAST WEEK. IT IS MY BELIEF
16 THAT IT IS POSSIBLE THAT IF THE PLAINTIFF KNOWS THE SCOPE OF
17 THE COURT'S ORDER FOR INJUNCTIVE RELIEF IT IS NOT CERTAIN
18 THAT A JURY TRIAL ON DAMAGES MAY BE ABSOLUTELY NECESSARY.
19 OUR CONCERN IS TO GET ENOUGH, IF YOU WILL, OR
20 BACKING FOR PERMANENT INJUNCTION TO NOT HAVE TO COME BACK TO
21 COURT AGAIN AND AGAIN IF THERE'S FURTHER DEFAMATIONS IN THE
22 FUTURE.
23 COULD I INQUIRE, AND IF IT PLEASE THE COURT,
24 IF WE COULD DISCUSS THE ISSUE OF THE PERMANENT INJUNCTION.
25 THE COURT: WE CAN DO THAT. AS I UNDERSTOOD, AND
26 CORRECT ME IF I'M WRONG, WHAT COUNSEL WAS SUGGESTING WE DO
27 IS GO THROUGH AND TAKE EVIDENCE WITH REGARD TO THE
28 INJUNCTION, AND THEN THE COURT WOULD ISSUE AN INJUNCTION,
105
1 WHICH WOULD BE REVIEWED BY YOUR LAW FIRM TO SEE IF IT WAS
2 ACCEPTABLE, AND IF IT WAS NOT WE WOULD THEN IMPANEL A JURY,
3 PUT THE SAME EVIDENCE ON AGAIN, AND, IN FACT, TRY THE CASE
4 TWICE.
5 I DON'T HAVE THE LUXURY OF BEING ABLE DO
6 THAT, UNFORTUNATELY. SO WHAT I SAID, AND I HAVE TO THINK
7 THIS IS CORRECT, IS THAT WE'RE ONLY GOING TO DO IT ONCE. IF
8 WE'RE GOING TO DO IT ONCE, IF YOU CLAIM DAMAGES, THAT IS A
9 LEGAL ISSUE, AND WE HAVE THE RIGHT TO A JURY TRIAL, WHICH
10 HAS BEEN ASSERTED BY THE DEFENSE, AND WE'LL GO FORWARD AND
11 PUT IT ON ONCE AS A JURY TRIAL, AND THAT'S IT.
12 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. IN TERMS OF
13 THE PERMANENT INJUNCTION, WE SUBMITTED A PROPOSED ORDER THAT
14 HAD THE FOLLOWING ESSENTIAL ELEMENTS THAT THE COURT HAS
15 FOUND A RIGHT TO AN INJUNCTION TO REMOVE THE DEFAMATORY
16 MATERIAL FROM THE WEBSITE AND NOT DEFAME IN THE FUTURE.
17 IF IT PLEASE THE COURT, I WOULD LIKE TO
18 INQUIRE AS TO WHETHER THAT IS THE ISSUE, WHETHER THE COURT
19 CAN ADDRESS THAT WITHOUT TAKING FURTHER EVIDENCE. IN OTHER
20 WORDS, THE SCOPE OF THE INJUNCTION IS A MATTER FOR THE
21 COURT'S DISCRETION IN TERMS OF HOW QUICKLY SHE WOULD REMOVE
22 MATERIAL FROM THE WEBSITE. AND OUR PROPOSED ORDER,
23 BASICALLY, IS THAT IN THE FUTURE IF THERE SHOULD BE A
24 VIOLATION OF COURT ORDER THAT THE -- RATHER THAN HAVING TO
25 FILE A NEW LAWSUIT, THAT THE COURT MIGHT ENTERTAIN THAT AS A
26 PROCEDURE.
27 THE FACT WE FILED A NOTICED MOTION WITH
28 EVIDENCE AND DECLARATIONS STATING THERE HAS BEEN ANOTHER
106
1 VIOLATION, AND OUR NAME APPEARS ON THE WEBSITE WITH THE
2 DEFAMATORY INFORMATION, AND THAT WE WOULD BRING A MOTION,
3 AND THE COURT WOULD RECEIVE OPPOSITION TO THAT DECLARATION,
4 AND THE COURT WOULD DETERMINE WHETHER THE MATERIAL WAS
5 DEFAMATORY IN VIOLATION OF THE COURT'S ORDER.
6 THE COURT: THAT SOUNDS LIKE SUCH A REASONABLE
7 PLAN. THE PROBLEM IS THERE ARE TWO SIDES IN EVERY LAWSUIT.
8 YOU HAVE A RIGHT TO A REASONABLE AND SPEEDY DETERMINATION OF
9 YOUR ISSUES. SO DOES THE DEFENSE.
10 I DON'T KNOW WHAT WAS ON THE WEBSITE. I
11 DON'T KNOW WHAT WAS SAID. I KNOW JUST IN GENERAL FROM THE
12 SUMMARY JUDGMENT MATERIALS THAT -- WHAT WAS THERE, BUT I
13 DON'T KNOW EXACTLY HOW IT IS PUT UP OR ANY OF THOSE THINGS.
14 HERE IS WHAT I DON'T WANT TO DO. I DON'T
15 WANT TO MAKE AN ORDER THAT COULD BE EASILY DISREGARDED OR
16 AVOIDED. IN OTHER WORDS, THEY HAVE ESTABLISHED BY WAY OF
17 SUMMARY ADJUDICATION THEIR RIGHT TO RELIEF IN TERMS OF AN
18 INJUNCTION. WHAT I WANT TO MAKE SURE HAPPENS IS THAT THAT
19 INJUNCTION WOULD BE EFFECTIVE TO CAUSE THE DEFAMATION TO
20 STOP. IN OTHER WORDS, I WOULD HAVE TO KNOW WHAT IS ON THE
21 WEBSITE TO FASHION THAT.
22 WHAT I SUGGESTED TO COUNSEL IS SUBMIT SOME
23 PLEADINGS WHERE YOU LAY IT ALL OUT FOR ME. THEN I CAN SPIN
24 IT AROUND A LITTLE BIT AND COME UP WITH SOMETHING, AND THAT
25 SEEMS TO ME TO BE A REASONABLE WAY TO PROCEED, EXCEPT FOR
26 THIS PESKY DAMAGES ISSUE, WHICH WE CAN'T ELIMINATE BY
27 SIMPLY -- AS I MENTIONED TO COUNSEL, BY JUDICIAL FIAT I
28 CAN'T SAY THAT WE WILL JUST DISREGARD DAMAGES. IT IS AN
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1 UNUSUAL POSTURE OF THE CASE WHERE YOU HAVE THE DEFENDANT
2 SAYING LET'S GO TO TRIAL ON DAMAGES, AND YOU HAVE THE
3 PLAINTIFF SAYING NOT SO FAST.
4 SO I CAN'T IGNORE THE DEMAND FOR A JURY
5 TRIAL. I CAN'T IGNORE THE DEMAND FOR DAMAGES. SO YOU PUT
6 THOSE TOGETHER, AND WHAT DO YOU HAVE? YOU HAVE A JURY TRIAL
7 ON DAMAGES. THAT'S WHAT YOU HAVE.
8 NOW, I DON'T CERTAINLY WANT TO BE THE ONE
9 LEADING THE CHARGE TO A JURY TRIAL IN THIS CASE. I WOULD
10 LIKE TO AVOID THAT. THAT'S WHY I SUGGESTED IN TERMS OF -- A
11 COUPLE OF WAYS YOU CAN DO THIS. I DON'T KNOW THAT YOU
12 UNDERSTAND HOW PROFOUNDLY THIS TRIAL CAN AFFECT YOUR FUTURE
13 IN TERMS OF ECONOMICS. I DON'T KNOW TO WHAT EXTENT YOU
14 UNDERSTAND THAT. THAT JURY COULD AWARD DAMAGES THAT WOULD
15 HAVE A PROFOUND EFFECT, BECAUSE THEN THERE WOULD BE A
16 JUDGMENT. NOT GOING INTO THAT.
17 THE BOTTOM LINE IS THAT PEOPLE WHO ARE FACING
18 TRIAL SOMETIMES CONSIDER WHETHER THERE ARE OTHER OPTIONS
19 AVAILABLE IN TERMS OF PUTTING TOGETHER AN AGREEMENT OF SOME
20 SORT.
21 WHAT I'M THINKING IS, IF YOU WERE TO GET --
22 IF YOU WERE TO GET A SETTLEMENT TOGETHER UNDER THE CODE OF
23 CIVIL PROCEDURE AND PUT IT ON THE RECORD PURSUANT TO THE
24 CODE, THEN IT BECOMES ENFORCEABLE. THEN YOU'RE IN A
25 JUDGMENT SITUATION AS OPPOSED TO A -- AS OPPOSED TO AN
26 EVIDENTIARY POSITION.
27 YOU'RE NOT UNDERSTANDING A WORD I'M SAYING.
28 MS. LARKINS: I'M UNDERSTANDING EVERYTHING, YOUR
108
1 HONOR.
2 THE COURT: ARE YOU?
3 MS. LARKINS: I HAVE GOOD COMPREHENSION.
4 THE COURT: YOU DO, BUT I'M TALKING ABOUT THE CODE
5 OF CIVIL PROCEDURE, AND THERE IS A SPECIFIC SECTION THAT IF
6 YOU ENTER INTO A SETTLEMENT AGREEMENT CALLED THE EXPEDITED
7 JUDGMENT PROCEDURE, WHAT HAPPENS IS THAT IF THERE'S A
8 VIOLATION OF THE AGREEMENT, THE SETTLEMENT AGREEMENT, THE
9 OTHER SIDE CAN COME INTO COURT WITH A JUDGMENT, OKAY, AND
10 SAY, HERE, JUDGE, SIGN THE JUDGMENT, BECAUSE THERE WAS A
11 VIOLATION OF THE AGREEMENT.
12 MS. LARKINS: I UNDERSTAND HOW VERY POWERFUL A
13 JUDGMENT IS. IN FACT, THE OTHER DAY MY HUSBAND SAYS, WELL,
14 IF WE HAVE TO PAY A MILLION DOLLARS WE CAN ALWAYS DECLARE
15 BANKRUPTCY. I SAID, NO, NOT FOR A JUDGMENT.
16 THE COURT: YOU MAY NOT HAVE TO GO DOWN THAT
17 TRAIL. JUST LISTEN TO ME. YOU KNOW WHAT A JUDGMENT IS, AND
18 YOU KNOW WHAT THE EXPEDITED JUDGMENT PROCEDURE IS IF THERE
19 IS AN AGREEMENT. THAT'S IF THERE IS AN AGREEMENT, A
20 SETTLEMENT.
21 THE ADVANTAGE TO YOU IS YOU MAY BE ABLE TO
22 STRIKE A BETTER DEAL THAT WAY. THE ADVANTAGE OF THE OTHER
23 SIDE IS THEY GET THE EXPEDITED JUDGMENT PROCEDURE IF THE
24 WEBSITE DOESN'T GO AWAY OR SOMETHING ELSE HAPPENS.
25 THERE'S SOMETHING IN THAT FOR EVERYBODY BUT I
26 CAN'T BE A SETTLEMENT DECIDING JUDGE. I CAN'T GO INTO THE
27 PROS AND CONS. BUT IT SEEMS TO ME THE OPTIONS ARE
28 RELATIVELY FEW, AND THEY INCLUDE TALKING ABOUT SETTLEMENT.
109
1 SEE IF YOU CAN WORK SOMETHING OUT. USE THE EXPEDITED
2 SETTLEMENT PROCEDURE.
3 MR. HOLTZ: I'M SORRY.
4 THE COURT: YOU'RE NOT PAYING ATTENTION? YOU'VE
5 GOT SOMETHING ELSE? WOULD YOU LIKE TO GO INTO THAT RIGHT
6 NOW?
7 MR. WADE: NO, I APOLOGIZE, YOUR HONOR.
8 THE COURT: OKAY? THE OTHER IS TO GO FORWARD ON A
9 JURY TRIAL. IF WE GO FORWARD ON A JURY TRIAL WE ARE OPEN ON
10 THE ISSUE OF FRAUD, MALICE, AND OPPRESSION. A COURT TRIAL
11 HAS TO BE AGREED TO BY BOTH SIDES. IT IS NOT. THAT'S WHERE
12 WE ARE. I DON'T SEE THIS AS SOMETHING YOU CAN HOLD IN
13 ABEYANCE AS A TRIAL MATTER. IF YOU CAME INTO COURT AND SAY
14 I WANT MY TRIAL, YOU'RE GOING TO GET A TRIAL. IF THE OTHER
15 SIDE SAYS THEY WANT A TRIAL, THEY'RE GOING TO GET A TRIAL.
16 THOSE ARE THE OPTIONS AS I HAVE CONSIDERED THEM.
17 I DON'T CARE ABOUT THE PARTIES IN ANY CASE.
18 I CARE ABOUT THE PROCESS. IT HAS TO BE PREDICTABLE AND THE
19 SAME FOR EVERYBODY. IF YOU COME UP WITH A REASONABLE IDEA
20 AND IT ACCOMMODATES THE PROCESS, I'M HAPPY TO LISTEN TO
21 THAT, BUT I DON'T MAKE UP THE RULES.
22 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. I HAVE
23 PREPARED A STIPULATED PERMANENT INJUNCTION WITH CERTAIN
24 TERMS AND CONDITIONS, AND I WOULD LIKE THE OPPORTUNITY, IF
25 THE COURT CAN GIVE US A LITTLE BIT OF A FEW MOMENTS OF TIME
26 AT THIS POINT TO DISCUSS THAT WITH MS. LARKINS AND SEE IF A
27 STIPULATED JUDGMENT, WHICH BASICALLY ASKS THE SAME THING
28 WE'RE ASKING FOR WITH THE PERMANENT INJUNCTION WITH THE
110
1 LIQUIDATED DAMAGES CLAUSE.
2 THE COURT: I'M HAPPY TO GIVE YOU ENOUGH TIME TO
3 TALK ABOUT THAT.
4 A COUPLE THINGS TO KEEP IN MIND. THESE
5 TRIALS, AS MUCH AS YOU WANT TO THINK OF THEM AS A PERFECT
6 ANSWER, THEY ARE AN IMPERFECT VEHICLE AT BEST, AND I THINK
7 YOU UNDERSTAND THAT. AT THE END OF THE TRIAL SOMEBODY PAYS
8 COSTS, OKAY?
9 DO YOU UNDERSTAND ABOUT COSTS? I WON'T GO
10 INTO IT.
11 MS. LARKINS: YES, I DO.
12 THE COURT: IT IS NOT FAIR TO PUT YOU THROUGH A
13 TRIAL AND GET TO THE END AND SAY HERE IS A SURPRISE. THERE
14 ARE COSTS. YOU NEED TO UNDERSTAND THAT.
15 WHEN YOU WALK OUT OF HERE, THE ONLY THING --
16 I'M TALKING GENERALLY, OKAY? BUT THE ONLY THING I WANT YOU
17 TO THINK ABOUT IS MAKING THE BEST DECISION THAT YOU CAN FOR
18 YOURSELF UNDER THE CIRCUMSTANCES. WHAT DOES THAT MEAN?
19 DOESN'T MEAN NECESSARILY A DECISION THAT MAKES YOU REALLY
20 HAPPY. DOESN'T MEAN NECESSARILY A DECISION THAT MAKES YOU
21 REALLY UNHAPPY. IT MEANS YOU MADE THE BEST DECISION YOU CAN
22 FOR YOURSELF UNDER THE CIRCUMSTANCES. IT MEANS YOU WALK OUT
23 TODAY AND SAY GOOD DECISION. YOU WAKE UP TOMORROW AND SAY
24 GOOD DECISION. OKAY? THAT'S ALL I'M GOING TO ASK YOU TO DO
25 IS KEEP AN OPEN MIND.
26 TALK TO THE OTHER SIDE. SEE IF YOU CAN WORK
27 SOMETHING OUT. IF YOU CAN, FINE. IF YOU CAN'T THAT'S FINE
28 TOO, BUT WE STILL HAVE TO WORK OUT FEES AND THINGS LIKE
111
1 THAT, COURT REPORTER FEES, JURY FEES, AND SEE WHO IS PAYING
2 THESE THINGS.
3 THEY'VE WAIVED JURY. I DON'T KNOW WHO IS
4 PAYING THE COURT REPORTER. WHO IS PAYING THE COURT
5 REPORTER?
6 MS. LARKINS: THAT I DON'T KNOW.
7 THE COURT: WELL, THAT WOULD BE YOU, I WOULD
8 THINK, IF YOU WANT THE CASE TO HAVE A COURT REPORTER.
9 MS. LARKINS: OH, OKAY. I'M SORRY FOR MY
10 IGNORANCE. I WILL PAY FOR THE COURT REPORTER.
11 THE COURT: IT IS NOT INTUITIVE. DO YOU WANT A
12 COURT REPORTER?
13 MR. HOLTZ: WE'LL SPLIT THE COST.
14 THE COURT: SPLIT THE COST MEANS WITH WHOM?
15 MR. HOLTZ: I MEAN, IF MS. LARKINS SAYS SHE'S
16 GOING TO PAY FOR THE COURT REPORTER, WE'LL PAY HALF THE
17 COURT REPORTER AND GIVE HER A CHECK EVERYDAY.
18 THE COURT: IS THAT WHAT YOU WANT TO DO?
19 MS. LARKINS: YES.
20 THE COURT: DO YOU KNOW WHAT THE COURT REPORTER
21 COSTS?
22 MS. LARKINS: YES. I HAVE TAKEN DEPOSITIONS AND
23 PAID FOR THEM. I'VE BEEN TAKING WHOLE-DAY DEPOSITIONS AND
24 PAYING FOR THEM.
25 THE COURT: WHAT DOES THE COURT REPORTER COST?
26 THE CLERK: $730 A DAY.
27 THE COURT: IT IS HALF OF $730 A DAY. I'M GIVING
28 YOU INFORMATION SO YOU CAN MAKE AN INTELLIGENT DECISION.
112
1 ANY QUESTIONS?
2 MS. LARKINS: YES, YOUR HONOR. I'M WONDERING
3 ABOUT THE ISSUE OF ATTORNEY FEES AT THE END OF A TRIAL.
4 LET'S JUST SAY THE JURY DIDN'T LIKE MY ATTITUDE, AND THEY --
5 THAT I HAD TO PAY MANY, MANY DOLLARS TO PLAINTIFF.
6 I STILL FEEL THAT EVERYTHING I HAVE DONE I
7 HAVE DONE NOT JUST FOR MYSELF BUT FOR THE EDUCATION SYSTEM
8 AND FOR THE PUBLIC ENTITIES INVOLVED, FOR THE CITIZENS, AND
9 I BELIEVE THAT I HAVE SUBSTANTIAL JUSTIFICATION FOR
10 EVERYTHING I'VE DONE.
11 I HAVE BEEN FOUND LIABLE FOR DEFAMATION.
12 WELL, YES. DEFAMATION PER SE. BUT PART OF THAT WAS THAT I
13 WAS A VERY POOR LAWYER. I WAS NOT A LAWYER AT ALL. AND THE
14 TRUTH IS THAT I BELIEVE AND MORE THAN BELIEVE I -- I KNOW
15 THAT THE THINGS THAT I SAID WERE ALL TRUE.
16 THE COURT: OKAY. WAIT A MINUTE. YOU KNOW WHAT?
17 WE DON'T HAVE TIME RIGHT NOW TO GO THROUGH THIS, BECAUSE I
18 UNDERSTAND THE PATH YOU'RE HEADED DOWN, BUT IT HAS NOTHING
19 TO DO WITH ATTORNEY FEES.
20 BY LAW ATTORNEY FEES CAN BE AWARDED BY
21 CONTRACT OR BY STATUTE. AND HERE WE HAVE -- AND THEY CANNOT
22 BE AWARDED TO PRO PER LITIGANTS. SO THIS IS INTERESTING.
23 WHAT IS YOUR POSITION WITH REGARD TO ATTORNEY
24 FEES?
25 MR. HOLTZ: I KNOW OF NO LAW WHICH WOULD SAY THAT
26 PLAINTIFF IS ENTITLED TO ATTORNEY FEES IN THIS CASE AS COSTS
27 UNDER 1033. I THINK IT IS A POSSIBILITY, HOWEVER, THAT IT
28 IS MY UNDERSTANDING GENERALLY DEFAMATION DAMAGES, THAT THE
113
1 COSTS THAT A DEFENDANT INCURS TO TRY AND STOP THE DEFAMATION
2 CAN BE CONSIDERED AS PART OF GENERAL DAMAGES.
3 PUT ANOTHER WAY?
4 THE COURT: YEAH, THAT WOULD BE GOOD.
5 MR. HOLTZ: IF WE EXPEND A LOT OF HOURS TRYING TO
6 STOP THE DEFAMATION AS A RESULT OF OUR FIRM LOST MONEY IN
7 CONNECTION WITH THE EFFORTS OF OUR LAWYERS, OUR ARGUMENT
8 WOULD BE MAYBE THAT'S AN ELEMENT OF GENERAL DAMAGES.
9 THE COURT: IT IS. IT DOESN'T SOUND LIKE ATTORNEY
10 FEES, AND YOUR FIRM IS REPRESENTING ITSELF.
11 MR. HOLTZ: THAT'S WHY WE HAVE NO ATTORNEY FEES.
12 THEREFORE, I'M JUST SAYING THAT WHAT WE PROBABLY WOULD DO IS
13 PUT ON SOME ORAL EVIDENCE OF THE FACT THAT WE SPENT X NUMBER
14 OF HOURS.
15 THE COURT: I DON'T KNOW THAT -- I'D HAVE TO TAKE
16 A LOOK AT SOME CASE LAW. ORDINARILY, OF COURSE, LITIGATION
17 EXPENSES ARE NOT RECOVERABLE AS DAMAGES.
18 MR. HOLTZ: RIGHT.
19 THE COURT: SO I'D HAVE TO SEE A CASE THAT SAYS IN
20 DEFAMATION THEY ARE.
21 MR. HOLTZ: THEY'RE NOT -- WE HAVEN'T INCURRED THE
22 EXPENSE. WE'VE INCURRED A LOSS OF MANPOWER, IF YOU WILL.
23 THE COURT: WELL, I GUESS THE PEOPLE THAT ARE
24 INVOLVED IN CAR ACCIDENTS AND HAVE TO COME TO COURT HAVE TO
25 GIVE UP THEIR WORK TO COME IN. I SUPPOSE THAT MIGHT GO DOWN
26 THE SAME TRAIL. BUT, AGAIN, I WANT TO READ SOMETHING ON IT.
27 MR. HOLTZ: I HAVE ONE MORE POINT, YOUR HONOR.
28 THE COURT: DID THAT ANSWER YOUR QUESTION? THE
114
1 ANSWER IS NO.
2 MS. LARKINS: I WON'T HAVE TO PAY ATTORNEY FEES.
3 THE COURT: WHAT THEY'RE SAYING IS THEY MAY BE
4 ABLE TO REFASHION ATTORNEY FEES IN SOME FASHION TO MAKE THEM
5 RECOVERABLE. BUT RIGHT NOW THERE IS NO STATUTE, AND THERE
6 IS NO CONTRACT PROVISION. AND REMEMBER THE TWO WAYS I TOLD
7 YOU THAT YOU GET ATTORNEY FEES.
8 NOW THEY'RE SAYING BECAUSE IT IS DEFAMATION
9 THERE MAY BE A WAY TO RECOVER THE LOSS OF HOURS THAT THE LAW
10 FIRM SUFFERED AS A RESULT OF THE DEFAMATION. THEY MAY BE
11 ABLE TO CALL IT THAT AND COME IN SOME WAY TO RECOVER IT THAT
12 WAY.
13 AM I CORRECT?
14 MR. HOLTZ: YES, YES.
15 THE COURT: OKAY.
16 MS. LARKINS: THANK YOU, YOUR HONOR.
17 MR. HOLTZ: ONE MORE POINT, YOUR HONOR? ON THE
18 POINT OF INJUNCTIVE RELIEF.
19 THE COURT: YES.
20 MR. HOLTZ: THE MOTION FOR SUMMARY JUDGMENT
21 PLEADINGS HAD INCLUDED THE WEBSITE INFORMATION. SO THAT
22 WEBSITE INFORMATION IS ALREADY PART OF THE RECORD.
23 THE COURT: IS THAT EVERYTHING YOU WANT ME TO LOOK
24 AT?
25 MS. LARKINS: IF IT WOULD BE OF ANY HELP, I MADE A
26 COPY FOR THE COURT AND FOR PLAINTIFFS OF MY CURRENT WEBSITE
27 AS I UNDERSTAND TODAY. I CAN JUST GIVE IT TO YOU.
28 THE COURT: WAIT A MINUTE, BECAUSE THEY CAN'T READ
115
1 AND LISTEN AT THE SAME TIME.
2 MR. HOLTZ: GIVE US ONE MINUTE, YOUR HONOR.
3 THE COURT: YOU CAN.
4 MR. HOLTZ: MY RECOLLECTION -- MY RECOLLECTION IS
5 THAT THE MOTION FOR SUMMARY JUDGMENT INCLUDED PAGES FROM THE
6 WEBSITE.
7 MR. WADE: THAT IS CORRECT.
8 MR. HOLTZ: GIVE US ONE MINUTE. WE PROBABLY HAVE
9 A SEPARATE STATEMENT OF THE FACTS RIGHT HERE.
10 THE COURT: YOU CAN DO THAT. THE PROBLEM IS WHEN
11 WE'RE GOING TO TRIAL ON THE INJUNCTION AND GOING TO TRIAL ON
12 DAMAGES THAT THERE'S NO RIGHT TO JURY, OF COURSE. BUT
13 MS. LARKINS HAS A RIGHT TO PUT ON HER EVIDENCE WITH REGARD
14 TO THE WEBSITE.
15 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. IT SEEMS
16 LIKE THERE IS A POSSIBILITY OF STREAMLINING THE ISSUE OF
17 SUBMISSION OF EVIDENCE --
18 THE COURT: I LIKE THE WAY YOU THINK.
19 MR. HOLTZ: -- RELATIVE TO THE ISSUE OF INJUNCTIVE
20 RELIEF.
21 THE COURT: WHAT YOU NEED TO DO IS TALK. SPEND A
22 LITTLE TIME TALKING TO THE OTHER SIDE. SEE IF YOU CAN
23 WITHOUT DOING VIOLENCE TO YOUR CONSCIENCE TO ARRIVE AT
24 SOMETHING THAT WON'T PUT YOU IN JEOPARDY.
25 MS. LARKINS: YES, YOUR HONOR.
26 THE COURT: OKAY. IF YOU CAN, FINE. IF YOU
27 CAN'T, FINE. BUT -- OKAY?
28 MS. LARKINS: YES, YOUR HONOR.
116
1 MR. WADE: PURSUANT TO THE COURT'S EARLIER RULING,
2 YOUR HONOR, DO YOU WANT ME TO SUBMIT AN AMENDED ORDER?
3 WOULD THAT SATISFY THE COURT?
4 THE COURT: I THINK IT WOULD BE BETTER IF YOU DID,
5 YEAH. I UNDERSTAND THE CONFUSION.
6 MR. WADE: IT WAS NO INTENT ON MY PART TO DECEIVE.
7 THE COURT: I HAD AN OPPORTUNITY TO WATCH YOU
8 PRACTICE FOR A WHILE, AND I AM -- ONE OF THE THINGS I FOUND
9 A BRIGHT SPOT ON WAS I APPRECIATE THE WAY IN WHICH YOU
10 PRACTICE, AND I THINK YOU'RE VERY ENTHUSIASTIC, AND I'VE
11 BEEN IMPRESSED BY THE WAY YOU PUT YOUR CASE ON, AND I CAN
12 UNDERSTAND THIS CONFUSION.
13 BECAUSE, HONESTLY, IT IS A TECHNICAL AREA,
14 AND IF YOU DON'T DO DEFAMATION EVERYDAY, AND I DON'T DO
15 DEFAMATION EVERYDAY, YOU HAVE TO STUDY UP ON IT, WHICH IS
16 WHAT CAUSED ME TO GO HIT THE BOOKS AND GO SEE EXACTLY WHAT
17 THE RULINGS WAS AND READ ABOUT SOME CASES TO PREPARE FOR
18 TODAY, WHICH I DID.
19 BUT IN DOING THAT, I REALIZED THAT THERE WAS
20 SOME CONFUSION THAT REALLY NEEDED TO BE STRAIGHTENED OUT,
21 BECAUSE WHAT I WAS RUNNING UP AGAINST WAS THE BURDEN OF
22 PROOF. AND HOW CAN YOU HAVE A DETERMINATION OF MALICE
23 UNLESS THERE WAS A FINDING IN REGARD TO DAMAGES? AND HERE
24 WE SPECIFICALLY SAID WE'RE GOING TO TRIAL ON DAMAGES. SO
25 THAT GOT ME BACK INTO MALICE UNDER DEFAMATION, BUT MALICE
26 DOESN'T APPLY UNLESS IT IS A PUBLIC FIGURE, AND WE DON'T
27 HAVE A PUBLIC FIGURE BY YOUR ARGUMENT, AT LEAST.
28 MR. WADE: CORRECT.
117
1 THE COURT: THAT'S WHAT TOOK ME DOWN THAT --
2 HONESTLY, I GET VERY NERVOUS WHEN I SEE A VARIATION IN THE
3 ORDER AND THE RULING, BECAUSE I'M USED TO SEEING JUST A
4 RESTATEMENT OF THE RULING THAT WE TAKE QUITE A BIT OF TIME
5 PUTTING TOGETHER IN THE ORDER. I DON'T --
6 THAT'S WHERE WE ARE. TAKE AS MUCH TIME AS
7 YOU NEED AND WE'LL GET BACK.
8 MR. HOLTZ: THANK YOU, YOUR HONOR.
9 MS. LARKINS: THANK YOU.
10 (RECESS.)
11 THE COURT: ALL RIGHT, WHERE ARE WE? WE'RE ON THE
12 RECORD IN THE LARKIN MATTER WITH BOTH SIDES PRESENT.
13 MR. HOLTZ: YOUR HONOR, WE TRIED TO REACH SOME
14 RESOLUTION ON THE ISSUES AND WERE UNABLE TO DO SO. WE'RE
15 GOING TO PROCEED TO TRIAL, AND THE COURT SHOULD -- KNOW FROM
16 OUR POSITION UP FRONT THAT WE'RE GOING TO TRY TO RESTRICT
17 THE ISSUES OF DOCUMENTS TO THE PORTIONS OF THE WEBSITE THAT
18 WERE ADDRESSED IN THE MOTION FOR SUMMARY JUDGMENT WHICH WAS
19 GRANTED. SO WE'RE GOING HAVE A LIMITED SET OF DOCUMENTS
20 WHICH RELATE DIRECTLY TO THOSE STATEMENTS TO SHOW THE EFFECT
21 ON THE FIRM.
22 THE COURT: ALL RIGHT.
23 MR. HOLTZ: AS FAR AS THE COURT'S ISSUE OF
24 INJUNCTIVE RELIEF, WE THINK THAT THERE MAY BE ENOUGH IN THAT
25 RECORD, IN THOSE FEW DOCUMENTS ON WHICH THE COURT GRANTED
26 SUMMARY ADJUDICATION, FOR THE COURT TO FASHION INJUNCTIVE
27 RELIEF. HOWEVER, WE UNDERSTAND THE COURT HAS NOT DECIDED
28 THAT ISSUE, AND WE'RE READY TO PROCEED WITH THE MOTIONS IN
118
1 LIMINE AND OTHER PRELIMINARY MATTERS.
2 THE COURT: ALL RIGHT.
3 MR. WADE: JEFFREY WADE FOR THE RECORD.
4 WE DID SUBMIT A MOTION IN LIMINE
5 ATTEMPTING -- THIS CASE IS ABOUT DAMAGES, ABOUT
6 RE-LITIGATING LIABILITY ISSUES LIMITED TO THE SEVEN OR EIGHT
7 STATEMENTS WITHIN THE MOTION FOR SUMMARY ADJUDICATION THAT
8 THIS COURT RULED UPON. IN OTHER WORDS, WE DON'T WANT TO
9 OPEN UP OTHER ISSUES THAT AREN'T CONTAINED WITHIN THERE.
10 I DON'T THINK I'M BEING CLEAR IN MY HEAD.
11 LET ME REPEAT. WE'RE JUST LIMITING TO THE ISSUE OF DAMAGES
12 AS I UNDERSTAND THE SCOPE OF THIS TRIAL, TO WHETHER OR NOT
13 MS. LARKINS ACTED WITH MALICE, AND IF THAT IS FOUND,
14 PUNITIVE DAMAGES.
15 THE COURT: ALL RIGHT. GIVE ME JUST A MINUTE.
16 THIS WAS TUCKED IN THE BACK OF YOUR BRIEF.
17 MR. WADE: I APOLOGIZE.
18 (PAUSE IN THE PROCEEDINGS.)
19 THE COURT: OKAY. I'M NOT EXACTLY SURE WHAT
20 YOU'RE TALKING ABOUT IN TERMS OF EVIDENCE. IF YOU'VE GOT TO
21 SHOW MALICE, YOU'VE GOT TO SHOW FRAUD, MALICE, OR
22 OPPRESSION. YOU'VE GOT TO SHOW THAT THE STATEMENTS WERE
23 DESIGNED TO CAUSE INJURY, RIGHT? HOW ARE YOU GOING TO DO
24 THAT?
25 MR. WADE: OR RECKLESS DISREGARD, TRUTH OR
26 FALSITY.
27 THE COURT: SO MS. LARKINS HAS A RIGHT TO SHOW
28 THAT THEY WERE MADE WITHOUT THE INTENT TO DAMAGE OR WITHOUT
119
1 RECKLESS DISREGARD, RIGHT?
2 MR. WADE: I -- YEAH, I GET THAT POINT. I GUESS
3 WHAT I'M CONCERNED ABOUT IS THIS COURT HAS ALREADY
4 DETERMINED THAT THEY WERE DEFAMATORY. SO WHETHER THEY'RE
5 TRUE OR NOT SHOULD NOT BE RE-LITIGATED, AND THAT'S WHY I
6 GUESS I WAS HUNG UP ON THE PUNITIVE DAMAGES AND THE MALICE
7 ISSUE, IS THAT IF THEY'RE THOUGHT TRUE, THERE'S FALSEHOODS,
8 THEN THAT HURDLE IS OVERCOME. SO I DON'T NEED TO RELITIGATE
9 THAT ISSUE IN FRONT OF THE JURY OR EXPLAIN IT TO THEM THAT,
10 YOU KNOW, HERE ARE THE STATEMENTS. THESE HAVE ALREADY BEEN
11 DECIDED TO BE FALSE. YOU'RE NOT GOING TO HEAR --
12 I WANTED TO LIMIT IT TO THE STATEMENTS IN THE
13 SUMMARY JUDGMENT IS WHAT I UNDERSTAND WE'RE PROCEEDING ON,
14 SUMMARY ADJUDICATION. SO TO AVOID RE-LITIGATING WHY THEY'RE
15 TRUE, I THINK THEY'RE TRUE, SHE ALREADY HAD THAT CHANCE.
16 THAT FORUM CAME AND WENT IN THE SUMMARY ADJUDICATION STAGE,
17 AND THIS CASE WAS DECIDED AS A MATTER OF LAW, NO, THEY'RE
18 NOT TRUE.
19 THE COURT: THE PROBLEM IS GOING TO BE IN REGARD
20 TO MALICE. IF YOU HAVE TO PUT ON A DEFENSE FOR MALICE, WHAT
21 DOES THAT CONSIST OF?
22 MR. WADE: WELL, I GUESS IT WOULD -- I GUESS --
23 GENERALLY SPEAKING, IF IT WAS THE ENTIRE TRIAL AND WE WERE
24 TRYING ALL THE ISSUES AT ONCE, LIABILITY, CAUSATION, AND
25 DAMAGES, ET CETERA, IT WOULD BE THE OPPORTUNITY. BUT
26 BECAUSE OF THE UNIQUE NATURE OF THE SITUATION WE'RE IN, IT
27 HAS ALREADY BEEN DECIDED TO BE DEFAMATORY. IT IS LIMITED
28 TO --
120
1 THE COURT: YOU'VE GOT ME IN THIS INTELLECTUAL
2 CONUNDRUM, BECAUSE THE PROBLEM IS IF YOU'RE TRYING TO SHOW
3 SOMETHING IS NOT MALICIOUS, WOULDN'T EVIDENCE OF THE TRUTH
4 OF THE MATTER BE RELEVANT TO THAT DETERMINATION?
5 MR. WADE: I GUESS, GENERALLY SPEAKING, IN FULL
6 PHASE OF THE TRIAL, THAT WOULD BE --
7 THE COURT: NO. I'M ASKING IF IN THE DAMAGES
8 PHASE IF THERE HAS TO BE A DETERMINATION OF FRAUD, MALICE,
9 OR OPPRESSION, IN DETERMINING THE ISSUE OF MALICE WHETHER IT
10 WAS MADE -- A STATEMENT WAS MADE WITH RECKLESS DISREGARD,
11 WOULDN'T THE TRUTH OF THE A STATEMENT BE RELEVANT?
12 MR. HOLTZ: YOUR HONOR --
13 THE COURT: NO, ONE. WE HAVE TO HAVE A RULE IN
14 HERE, AND IT IS USUALLY ONE ATTORNEY, ONE ISSUE. I WILL LET
15 YOU TALK AMONG YOURSELVES SO THAT WE GET A FULL AIRING OF
16 THE ISSUE, BUT I REALLY CAN'T HAVE -- BECAUSE IN CASES WITH
17 SIX LAWYERS IT NEVER WORKS OUT. SO --
18 MR. WADE: I GUESS AVOIDING THE TRUTH --
19 THE COURT: TALK FOR A MINUTE.
20 (A DISCUSSION BETWEEN COUNSEL WAS HELD
21 OFF THE RECORD.).
22 MR. WADE: I GUESS THE COUNTER TO THAT ARGUMENT
23 WOULD BE THAT THE ISSUE OF TRUTH OR FALSEHOOD HAS BEEN
24 DECIDED. TO COUNTER WHETHER OR NOT SHE ACTED IN GOOD FAITH
25 SHE CAN SAY I DID IT FOR ANOTHER PURPOSE, NOT THAT I DID
26 IT -- NOT BECAUSE IT WAS TRUE. I DID IT FOR WHATEVER MOTIVE
27 IT WAS THAT SHE DID DO IT, BECAUSE THEN INTENT IS MOTIVE AND
28 GOES TO THAT ISSUE.
121
1 NOT WHETHER OR NOT -- NOT WHETHER WE
2 RELITIGATE WHETHER IT IS TRUE OR NOT. AND I THINK IT ALSO
3 COMES DOWN TO OTHER FACTORS IN THAT REGARD. IT IS NOT
4 WHETHER TRUTH OR FALSITY -- AGAIN, THAT ISSUE HAS BEEN
5 DECIDED.
6 THE COURT: WE'RE GOING TO GO ON A
7 QUESTION-BY-QUESTION BASIS. I'M NOT GOING TO GIVE YOU
8 OVERALL RULING THAT THE ISSUE OF THE TRUTH OF STATEMENTS IS
9 IRRELEVANT, BECAUSE WE'RE GOING TO RELITIGATE THAT OVER AND
10 OVER AGAIN. IT DEPENDS ON THE EVIDENCE. IT DEPENDS ON THE
11 QUESTION.
12 SEE, IF YOU LOOK AT IT -- WHAT ARE THE
13 ELEMENTS OF DEFAMATION PER SE?
14 MR. WADE: CAUGHT ME OFF GUARD.
15 THE COURT: THAT'S GOOD.
16 MR. WADE: THE DEFENDANT MADE ONE OR MORE
17 STATEMENTS TO A PERSON, THAT THIS PERSON OR THESE PEOPLE
18 REASONABLY UNDERSTOOD THAT THE STATEMENTS WERE ABOUT
19 PLAINTIFF, THAT THE PERSON OR THESE PEOPLE REASONABLY
20 UNDERSTOOD THE STATEMENTS TO INJURE ITS REPUTATION IN HIS
21 OCCUPATION OR FIELD, AND THE STATEMENTS WERE FALSE, AND/OR
22 DEFENDANT FAILED TO USE REASONABLE CARE TO DISCERN THE TRUTH
23 OR FALSITY OF THE STATEMENT.
24 THE COURT: I STILL THINK WE'RE GOING TO GO
25 QUESTION BY QUESTION. I THINK THAT'S THE BEST WAY TO HANDLE
26 IT.
27 ALL RIGHT. SO DID YOU WISH TO BE HEARD?
28 MS. LARKINS: YES, YOUR HONOR. I WOULD LIKE TO
122
1 SAY THAT THIS REMINDS ME OF A SENTENCING IN A CRIMINAL CASE.
2 THERE'S ALL KINDS OF INFORMATION THAT HAS TO BE KEPT OUT OF
3 THE ORIGINAL CRIMINAL TRIAL FOR VARIOUS REASONS. BUT THEN
4 IT IS BROUGHT BACK IN DURING THE SENTENCING PHASE. AND I
5 THINK OF THIS CASE AS SOMEWHAT LIKE THAT, THAT MAYBE A JUDGE
6 OR JURY REACHED A VERDICT OF INNOCENT OR GUILTY, BUT THEN
7 NOW IS THE TIME TO DO THE PUNISHMENT, AND MORE
8 INFORMATION -- IT SHOULD BE ALLOWED TO BE HEARD.
9 I NEED TO SHOW MY REASONS FOR BELIEVING THAT
10 THE STATEMENTS WERE TRUE. I ALSO CONSIDER THAT, WELL, YOU
11 KNOW, IF SOMEONE IS ACQUITTED OF A MURDER, LIKE OJ, LEGALLY
12 THEY'RE INNOCENT, BUT THE LAW ISN'T A HUNDRED PERCENT RIGHT
13 ALL THE TIME. SO IT IS POSSIBLE THAT THE PERSON ACTUALLY
14 DID THE THING.
15 IN THIS CASE, FOR EXAMPLE, I DID A VERY POOR
16 JOB OF PRESENTING MY EVIDENCE. SO THE COURT REALLY NEVER
17 GOT TO LOOK AT A LOT OF THE EVIDENCE. I DIDN'T PRODUCE IT
18 IN TIME. A DECISION HAD TO BE MADE. IT WAS MADE BASED ON
19 WHAT THE COURT HAD AT THAT TIME, BUT NOW THAT WE'RE
20 DETERMINING PUNISHMENT IT SEEMS THAT THE JURY HAS A RIGHT TO
21 HEAR ALL THE FACTS OR AT LEAST SOME MORE OF THE FACTS.
22 THE COURT: ALL RIGHT. I'M NOT ENTIRELY SURE I
23 UNDERSTOOD EVERYTHING YOU JUST SAID. I UNDERSTOOD SOME OF
24 IT, I THINK. THE QUESTION IS WHEN DID YOU WANT TO START
25 PICKING A JURY?
26 MR. HOLTZ: HOW ABOUT 1:30, YOUR HONOR?
27 THE COURT: OKAY. SEE YOU AT 1:30.
28 MR. HOLTZ: THANK YOU.
123
1 MR. WADE: THANK YOU, YOUR HONOR.
2 MS. LARKINS: THANK YOU, YOUR HONOR.
3 THE COURT: AND IN ANSWER TO YOUR QUESTION, THAT
4 DOESN'T CHANGE MY INITIAL REACTION. THIS IS KIND OF
5 INTERESTING, THE INTERPLAY BETWEEN THE DAMAGES ISSUE AND THE
6 SUMMARY ADJUDICATION ISSUE.
7 MR. WADE: THE DEFAMATION PER SE IS THAT IT
8 INJURES US IN OUR REPUTATION, THAT IT WAS DEFAMATORY PER SE.
9 THAT'S WHY I WANTED TO LIMIT IT.
10 THE COURT: LET ME TAKE A LOOK AT IT AND THINK
11 ABOUT IT OVER LUNCH. THANK YOU.
12 MR. WADE: THE COURT DID SAY 1:30?
13 THE COURT: I DID SAY 1:30. THAT'S RIGHT.
14 (LUNCH RECESS.)
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124
1 SAN DIEGO, CALIFORNIA - MONDAY - 4/6/2009 - 1:35 P.M.
2 --000--
3 THE COURT: HOPE YOU ALL HAD A NICE LUNCH.
4 I CAME UP WITH A PLAN C. WE TALKED ABOUT
5 PLAN A AND PLAN B. HERE IS SOMETHING THAT OCCURRED TO ME
6 OVER LUNCH. IT IS WORTH PERHAPS A MINUTE OR TWO OF THOUGHT.
7 WHAT IF WE WERE TO STAY THIS ACTION FOR A
8 PERIOD OF ONE YEAR, AND DURING THAT YEAR IT WOULD BE MY
9 THOUGHT THAT THIS WOULD BE A COOLING OFF PERIOD, DURING
10 WHICH I WOULD ASSUME THAT YOU WOULD TAKE ACTION TO RESOLVE
11 WHATEVER YOU'RE DOING IN TERMS OF A WEBSITE, AND WE WOULD
12 NOT GO FORWARD ON THE TRIAL AT THIS TIME. BUT EITHER SIDE
13 COULD COME IN AND REACTIVATE, AND THE CASE WILL BE TRIED
14 WITHIN A REASONABLE PERIOD OF TIME, 30 DAYS OR SO. THAT'S
15 WHAT I'M THINKING.
16 IN OTHER WORDS, EVERYBODY KIND OF GETS WHAT
17 THEY WANT. YOU GET TO KEEP AT LEAST $2,000 THAT I SEE IS
18 YOUR BEST CASE SCENARIO, AND YOU GET TO HAVE YOUR TRIAL ON
19 DAMAGES, ALBEIT NOT RIGHT AWAY.
20 MS. LARKINS: YOUR HONOR, I AM WILLING TO TAKE OFF
21 THOSE SPECIFIC STATEMENTS. I KNOW I DON'T HAVE A CHOICE,
22 BUT LET ME JUST SAY THIS. I AM --
23 THE COURT: NO, AT THIS POINT YOU DO HAVE A
24 CHOICE. THE PROBLEM IS YOU HAVE GOT TO THINK ABOUT WHAT
25 YOU'RE DOING IN TERMS OF THE EFFECT IT IS GOING TO HAVE AND
26 WHETHER OR NOT GOING OUT TO DINNER WITH YOUR MONEY MIGHT BE
27 MORE ENJOYABLE THAN DOING WHATEVER YOU'RE DOING. HONESTLY,
28 I DON'T KNOW THE EVIDENCE, NOR DO I WANT TO AT THIS POINT.
125
1 BUT IF YOU HAVE -- IF YOU ARE DOING THINGS THAT ARE JUST
2 GOING TO CAUSE THIS TO CONTINUE, YOU MIGHT WANT TO REFLECT
3 ON THAT.
4 ANYWAY, IT DOES WHAT YOU WANT ON THE
5 PLAINTIFF'S SIDE BECAUSE IT DOESN'T KILL OFF THE ISSUE OF
6 DAMAGES, PUNITIVE OR OTHERWISE, AND IT DOES WHAT YOU WANT IN
7 TERMS OF STOPS THE MACHINE SO YOU DON'T END UP BEING CHASED
8 AROUND WITH A JUDGMENT, AND IT IS SOMETHING TO THINK ABOUT.
9 ALTHOUGH, THIS IS A FASCINATING AREA, AND I DID SPEND THE
10 LUNCH HOUR READING ALL ABOUT DEFAMATION, AND I NOW KNOW WHAT
11 MALICE IN FACT IS, AND THE FACT THAT THAT'S WHERE YOU'RE
12 GOING.
13 SO WHATEVER YOU ALL WANT TO DO, BUT IT DOES
14 GIVE YOU AN OPTION, AND IT GIVES YOU AN OPTION THAT GIVES
15 EVERYONE AN OPPORTUNITY TO PERHAPS GET WHAT THEY WANT
16 WITHOUT, ON THE ONE HAND, PUTTING ON EVIDENCE IN FRONT OF
17 THE JURY, ON THE OTHER HAND, TAKING YOUR MONEY HOME IN YOUR
18 WALLET, WHICH IS WHERE MOST PEOPLE LIKE TO KEEP IT.
19 THINK ABOUT WHAT YOU WANT. I STOPPED THE
20 JURY IN MIDSTREAM SO THAT YOU WON'T BE RUNNING INTO THEM IN
21 THE HALLWAY. BUT I ASK YOU TO TALK ABOUT THIS A LITTLE BIT
22 AND SEE IF THIS MEETS YOUR REQUIREMENTS.
23 YOU HAVE TO DECIDE WHAT IS IMPORTANT AND WHAT
24 ISN'T IMPORTANT TO YOU, BUT I WOULD SUGGEST TO YOU -- I
25 DON'T KNOW THE FACTS -- IF YOU HAVE A WEBSITE, CONSIDER
26 WHAT'S INVOLVED IN JUST SAYING, OKAY, IT IS OVER, AND GOING
27 HOME. ARE THERE BENEFITS TO THAT? ARE THERE DISADVANTAGES
28 TO THAT? YOU HAVE TO DECIDE. YOU CONSIDER THEM AND SEE
126
1 WHAT IS REALLY IMPORTANT TO YOU.
2 BUT SOMETIMES, WE REALIZE THERE ARE A LIMITED
3 NUMBER OF HEART BEATS, AND MAYBE THIS IS THE DEFINING MOMENT
4 IN TERMS OF YOUR ENTIRE LIFE. BUT IF IT ISN'T, FACE IT,
5 MOVE ON. IF IT IS, SO BE IT.
6 GO OUT IN THE HALLWAY AND TALK.
7 MR. HOLTZ: YOUR HONOR, MAY I ASK A QUESTION?
8 THE COURT: SURE.
9 MR. HOLTZ: PART OF WHAT WE'RE TRYING TO
10 ACCOMPLISH IS TO HAVE SOMETHING IN PLACE WHICH WOULD COMPEL
11 THE DEFENDANT TO REMOVE DEFAMATORY MATERIAL ON THE WEBSITE
12 ABOUT MY LAW FIRM. THEREFORE, I UNDERSTAND THE JURY IS
13 WAITING TO COME IN, BUT I HAVE A COUPLE CONCERNS.
14 NUMBER ONE, MY FIRST CONCERN WOULD BE THAT
15 THERE WOULD BE NO ORDER -- A PRELIMINARY INJUNCTION IN PLACE
16 FROM TODAY FOR A YEAR FORWARD.
17 THE COURT: WELL, THERE ARE STILL A LOT OF OPTIONS
18 AVAILABLE TO YOU, AND THIS IS SOMETHING THAT OCCURRED TO ME
19 AS WELL TO TALK TO YOU ABOUT. AGAIN, I HAVE TO STAY BACK A
20 LITTLE BIT FROM THIS. BUT IT SEEMS TO ME JUST IN GENERAL
21 TERMS, IN TERMS OF CIVIL PROCEDURE, THERE ARE THINGS THAT
22 ARE AVAILABLE TO YOU. YOU CAN EITHER -- IN OTHER WORDS, IF
23 DEFAMATORY REMARKS WERE PUBLISHED IN THE PAST, YOU BROUGHT A
24 LAWSUIT, YOU HAD RESOLUTION OR YOU DIDN'T, YOUR OPTIONS ARE
25 IF THEY'RE REINSTITUTED TO FILE A NEW ACTION OR PROCEED ON
26 THE OLD ACTION.
27 YOU'VE GOT LOTS OF OPTIONS. IT IS NOT AS IF
28 ANYTHING IS GOING TO FORECLOSE YOU FROM GOING FORWARD. IT
127
1 IS JUST THAT YOU HAVE TO DECIDE WHAT YOU WANT TO DO, AND I
2 DECIDED I WOULD GO ALONG WITH YOU TO SOME EXTENT TO GO ALONG
3 WITH A DAY OF THINGS TO LET THINGS COOL OFF, AND SOMETIMES
4 TIME CAN HAVE A CATHARTIC EFFECT, AS LONG AS YOU CAN GET TO
5 A POINT YOU CAN LIVE WITH RIGHT NOW, AND EVERYBODY GOES HOME
6 AND THINKS ABOUT IT. AND MAYBE UPON FURTHER REFLECTION
7 THERE ARE OTHER THINGS THAT ARE MORE IMPORTANT.
8 SO THE ANSWER IS YES AND NO. LET'S LEAVE IT
9 THERE. DECIDE WHAT YOU WANT TO DO, AND THEN DO IT. IF I'M
10 ANALYZING THIS CORRECTLY, THERE MAY BE THINGS THAT ARE
11 HOLDING THIS UP THAT THIS MAYBE TAKES CARE OF.
12 MR. HOLTZ: YOUR HONOR, IF WE HAVE A YEAR UNDER A
13 STAY --
14 THE COURT: EITHER SIDE CAN REACTIVATE.
15 MR. HOLTZ: I UNDERSTAND. I UNDERSTAND WHERE
16 YOU'RE GOING WITH THIS. MY IMMEDIATE CONCERN WOULD BE TO
17 HAVE THE MOTION FOR SUMMARY ADJUDICATION IMPLEMENTED SUCH AS
18 TO REMOVE DEFAMATORY MATERIAL FROM HER WEBSITES TODAY OR AS
19 SOON AS THE COURT WOULD DEEM APPROPRIATE.
20 THE COURT: I CAN ALWAYS ISSUE A PRELIMINARY
21 INJUNCTION, RIGHT?
22 MR. HOLTZ: CORRECT.
23 THE COURT: AND THAT WOULD BE AS TO DEFAMATORY
24 MATERIAL. BUT IT SEEMS TO ME THAT IF YOU HAVE AN AGREEMENT
25 AND STIPULATION, I CAN FASHION AN ORDER IN ACCORD WITH THAT.
26 WHATEVER IT IS ON THAT WEBSITE, I CAN SAY DON'T DO THAT
27 ANYMORE, AND THAT'S A COURT ORDER.
28 MS. LARKINS: MAY I TELL YOU, YOUR HONOR, WHAT
128
1 SEEMS TO BE THE DIFFERENCE OF OPINION --
2 THE COURT: NO. YOU KNOW WHY I'M SAYING NO?
3 MS. LARKINS: FINE.
4 THE COURT: NO. LISTEN TO ME, BECAUSE IT SOUNDS
5 RUDE, AND I WANT TO EXPLAIN WHY IT ISN'T. I CAN'T REALLY
6 LISTEN TO THE FACTS OF THE CASE, AND I'M AFRAID YOU'RE GOING
7 TO SPILL OVER SOME OF THOSE FACTS. THE REASON WHY I CAN'T
8 IS WE'RE TALKING SETTLEMENT AT THIS POINT.
9 MS. LARKINS: OKAY.
10 THE COURT: WHAT I DON'T WANT TO DO IS HAVE FACTS
11 OF THE CASE THAT ARE NOT PRESENTED IN EVIDENCE COME BEFORE
12 ME SO THAT AN ARGUMENT COULD BE MADE THAT I WASN'T FAIRLY
13 HEARING THE EVIDENCE. AND SO WHAT I'M TRYING TO DO IS KEEP
14 IT ON A REALLY GENERAL AND, I GUESS, PRETTY OBTUSE LEVEL
15 JUST BECAUSE I'M TRYING TO STAND BACK A LITTLE BIT FROM IT
16 AND LET YOU FOLKS WORK OUT IF THAT IS POSSIBLE.
17 I DO TRIALS. I WILL DO THE NEXT TRIAL. I
18 WILL DO ANOTHER TRIAL. I JUST DO TRIALS. WHATEVER YOU WANT
19 TO DO IS FINE. I'M REALLY TRYING TO FIND WAYS TO SAVE YOU
20 FROM GETTING YOURSELF INTO A POSITION -- THERE'S NO
21 CROSS-COMPLAINT. YOU CAN'T WIN ON THIS OTHER THAN YOU CAN
22 CUT DOWN THE AMOUNT OF DAMAGE, WHICH I'M TRYING TO FIND A
23 WAY TO LET YOU GO HOME WITH YOUR MONEY ON THIS ONE. OKAY?
24 MS. LARKINS: THANK YOU, YOUR HONOR.
25 THE COURT: BUT THAT MEANS THAT YOU'VE GOT TO BE A
26 LITTLE BIT FLEXIBLE, AND IF YOU THINK AT THIS POINT YOU'RE
27 IN A GREAT BARGAINING POSITION, OH, YOU NEED TO LOOK AT THIS
28 AGAIN, BECAUSE YOU'RE REALLY NOT. YOU'VE HAD THAT SUMMARY
129
1 ADJUDICATION. THAT IS PROBLEMATIC.
2 I WILL SAY NO MORE OTHER THAN I WANT YOU TO
3 GIVE IT SOME SERIOUS THOUGHT. SEE WHAT YOU CAN LIVE WITH.
4 YOU DO THE SAME. SEE WHAT YOU CAN LIVE WITH. THIS IS THE
5 RUSH TO JUDGMENT, OF COURSE, BUT NOT RIGHT NOW. WE'RE GOING
6 TO TAKE THE TIME TO SEE. IF WE NEED TO DO IT, WE CAN DO IT.
7 IF WE DON'T HAVE TO DO IT, WE'VE GIVEN IT ADEQUATE
8 REFLECTION. THAT'S ALL I'M TRYING TO DO.
9 MR. HOLTZ: THANK YOU, YOUR HONOR.
10 MR. WADE: THANK YOU, YOUR HONOR.
11 MS. LARKINS: THANK YOU, YOUR HONOR.
12 (RECESS.)
13 THE COURT: ALL RIGHT. GOOD AFTERNOON.
14 MR. HOLTZ: GOOD AFTERNOON, YOUR HONOR. WE'VE MET
15 AT LENGTH, AND WE THINK WE ARE CLOSE TO A STIPULATED
16 PERMANENT INJUNCTION.
17 THE COURT: OKAY.
18 MR. HOLTZ: AND WE'VE WORKED ON THE FORM OF THE
19 ORDER. WE HAVE A DISAGREEMENT ABOUT ONE WORD. BUT IT IS A
20 CONCEPT. AND WE ARE GENERALLY ALSO IN AGREEMENT WITH THE
21 COOLING OFF PERIOD FOR THE DAMAGES TRIAL, WITH A MINIMUM OF
22 THREE MONTHS.
23 THE COURT: FOR WHAT? I'M SORRY.
24 MR. HOLTZ: A MINIMUM OF A THREE-MONTH COOLING OFF
25 PERIOD BEFORE WE COULD SEEK LIFTING OF A STAY.
26 THE COURT: OKAY.
27 MR. HOLTZ: MS. LARKINS, DO YOU WANT TO -- YOUR
28 HONOR, IF IT PLEASE THE COURT, I WOULD LIKE TO PROVIDE THE
130
1 COURT A COPY OF WHAT THE LANGUAGE OF THE PROPOSED STIPULATED
2 PERMANENT INJUNCTION IS.
3 THE COURT: SURE. WHY DON'T YOU HAND THAT TO
4 RENE.
5 MR. HOLTZ: MAY I LOOK ON?
6 THE COURT: YOU BET.
7 MS. LARKINS: YES.
8 MR. HOLTZ: HERE.
9 THE COURT: THANK YOU.
10 MR. HOLTZ: IF YOU'D LIKE, I'D LIKE TO READ MY
11 HANDWRITING INTO THE RECORD.
12 MR. WADE: I BELIEVE THAT'S FINE.
13 THE COURT: I CAN READ IT.
14 MR. HOLTZ: OKAY.
15 THE COURT: OKAY. WHAT IS THE DISAGREEMENT ABOUT?
16 MR. HOLTZ: IN PARAGRAPH TWO AT THE END THE
17 HANDWRITTEN PART, MS. LARKINS DISAGREES WITH THE INCLUSION
18 OF THE WORD "INTIMIDATION."
19 THE COURT: LET ME READ IT AGAIN.
20 WHAT'S THE MATTER WITH "INTIMIDATION"?
21 MS. LARKINS: I DON'T BELIEVE THAT WAS IN THE
22 COMPLAINT. I DON'T THINK IT WAS LITIGATED.
23 THE COURT: OKAY. IS THAT SOMETHING YOU HAVE A
24 SERIOUS DISAGREEMENT WITH?
25 MS. LARKINS: NO, NO.
26 THE COURT: YOU'RE NOT GOING TO PUT ANY LANGUAGE
27 ACCUSING THEM OF INTIMIDATION?
28 MS. LARKINS: I JUST THOUGHT -- YOU COULD ADD A 131
1 LOT OF WORDS.
2 THE COURT: THAT'S RIGHT, BUT PICK YOUR BATTLES.
3 IS THAT ONE YOU WANT TO FIGHT?
4 MS. LARKINS: NO.
5 THE COURT: OKAY.
6 MS. LARKINS: I WOULD JUST LIKE THE --
7 THE COURT: OKAY. WHAT WE'RE TRYING TO DO HERE IS
8 CALM TROUBLED WATERS. OKAY? IF THAT'S OUR GOAL, EVERYONE'S
9 GOAL, THEN WE NEED TO LOOK AT THIS REALISTICALLY. YOU HAVE
10 TO TONE IT DOWN IN THE WEBSITE, TAKE THIS LAW FIRM OFF THE
11 WEBSITE.
12 THAT IS ADVICE. IT IS NOT PART OF THE ORDER.
13 BUT SAVE YOURSELF SOME TROUBLE. A LAWYER DOES WHAT A LAWYER
14 DOES IN EVERY CASE, AND IF WE HAD PEOPLE PUTTING UP WEBSITES
15 FOR EVERY LAWYER THEY DIDN'T LIKE WE'D HAVE SO MANY WEBSITES
16 THE INTERNET WOULD BE BOGGLED, IF THAT IS SOMETHING THAT CAN
17 HAPPEN ELECTRONICALLY. SO AT LEAST THINK ABOUT IT. BUT THE
18 ORDER IS WHAT THE ORDER IS, AND IT IS AGREEABLE.
19 I HAVE BEFORE ME A DOCUMENT ENTITLED, "ORDER
20 ON PERMANENT INJUNCTION." IT HAS BEEN SUBMITTED TO THE
21 COURT FOR MY SIGNATURE. IT IS MY UNDERSTANDING THAT THE
22 PARTIES AGREE ON THIS.
23 IS THAT CORRECT, COUNSEL?
24 MR. HOLTZ: YES, YOUR HONOR. THIS IS A STIPULATED
25 PERMANENT INJUNCTION.
26 THE COURT: DID YOU READ IT?
27 MS. LARKINS: YES, I DID.
28 THE COURT: DID YOU UNDERSTAND IT?
132
1 MS. LARKINS: YES, I DID.
2 THE COURT: DO YOU HAVE ANY QUESTIONS ABOUT
3 ANYTHING?
4 MS. LARKINS: NO, I DON'T.
5 THE COURT: HAVE YOU HAD ENOUGH TIME TO LOOK AT
6 THIS?
7 MS. LARKINS: OH, YES.
8 THE COURT: YOU UNDERSTAND IF YOU WANTED YOU COULD
9 GO TAKE IT TO A LAWYER, BUT YOU'VE CHOSEN TO REPRESENT
10 YOURSELF. IS THAT WHAT YOU WANT TO CONTINUE TO DO?
11 MS. LARKINS: YES.
12 THE COURT: OKAY. IS THIS AGREEABLE TO YOU?
13 MS. LARKINS: IT MOST CERTAINLY IS.
14 THE COURT: IS THIS WHAT YOU WANT TO DO?
15 MS. LARKINS: THIS IS WHAT I WANT TO DO.
16 THE COURT: I'M ASSUMING, COUNSEL, THAT IF I ASKED
17 YOU THE SAME QUESTIONS THE ANSWERS WOULD BE THE SAME; IS
18 THAT CORRECT?
19 MR. HOLTZ: THAT'S CORRECT. I AM REPRESENTING THE
20 PLAINTIFF, THE STUTZ, ARTIANO, SHINOFF & HOLTZ LAW FIRM.
21 THE COURT: I'M GOING TO GO AHEAD AND SIGN THIS.
22 ANYTHING BEFORE I SIGN IT? ANYBODY WANT TO SAY ANYTHING?
23 I DIDN'T ASK THOSE QUESTIONS BECAUSE I SAW
24 ANYTHING IN HERE THAT IS QUESTIONABLE. THE REASON I ASK YOU
25 THOSE QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S GIVEN TO
26 THE COURT I ASK THE SAME QUESTIONS. THAT IS TO PREVENT
27 SOMEBODY FROM COMING BACK LATER AND SAYING, NO, I DIDN'T
28 REALLY MEAN TO SAY WHAT I SAID OR DO WHAT I DID.
133
1 THAT REMEDY IS NOT GOING TO BE AVAILABLE,
2 BECAUSE WE GO THROUGH THIS EXERCISE IN MAKING SURE THAT
3 EVERYBODY UNDERSTANDS WHAT THEY'RE DOING, ESPECIALLY IF YOU
4 DON'T HAVE A LAWYER HERE. I WANT TO MAKE SURE YOU READ IT,
5 UNDERSTAND IT, AND DON'T HAVE ANY QUESTIONS.
6 MS. LARKINS: YOUR HONOR, ACTUALLY, I WAS
7 WONDERING IF THE THREE-MONTH COOLING OFF PERIOD SHOULD BE
8 WRITTEN DOWN OR JUST --
9 THE COURT: IT WILL BE IN THE MINUTES.
10 MS. LARKINS: OKAY.
11 THE COURT: IT DOESN'T HAVE TO BE PART OF THIS,
12 BECAUSE WHEN I SAY IT, WHAT IS GOING TO HAPPEN IS THE CLERK
13 IS GOING TO WRITE IT DOWN. IT WILL GO INTO THE MINUTES.
14 IS THAT AGREEABLE?
15 MR. HOLTZ: YES, YOUR HONOR. AS I EXPLAINED TO
16 MS. LARKINS OR WE DISCUSSED, IT IS APPLES AND ORANGES. WE
17 HAVE PERMANENT INJUNCTION AND A STAY, IF YOU WILL, PER THE
18 COURT'S SUGGESTION SUBJECT TO REVOCATION. IF EITHER PARTIES
19 DESIRE, NO EARLIER THAN THREE MONTHS.
20 THE COURT: HERE IS WHAT I'M ANTICIPATING IS GOING
21 TO HAPPEN. SO WHAT YOU HAVE HERE IS A PERMANENT INJUNCTION
22 THAT YOU'RE AGREEING TO. THAT MEANS YOU'RE GOING TO STOP
23 WHATEVER THAT CONDUCT WAS BY THE TERMS OF IT.
24 IN ADDITION TO THAT, WE HAVE THAT PESKY ISSUE
25 OF THE DAMAGES. REMEMBER? THAT'S THE JURY TRIAL ISSUE.
26 WELL, IF WE GO FORWARD ON THAT, THEN THERE'S LIKELY TO BE A
27 JUDGMENT, AND THEN YOU HAVE TO DEAL WITH ALL THE THINGS THAT
28 WE TALKED ABOUT EARLIER.
134
1 WHAT WE'RE GOING TO DO IS PUT THAT OFF FOR
2 THREE MONTHS, AND I'M GOING TAKE A LOOK AT IT AT THE END OF
3 THREE MONTHS, MAYBE COME BACK, IF YOU WANT TO COME BACK.
4 MAKE SURE THAT EVERYTHING IS GOING WELL. AT THE END OF
5 THREE MONTHS I MAY PUT IT OVER ANOTHER THREE MONTHS. I MAY
6 SAY WE'RE GOING TO SCHEDULE THE TRIAL. I MAY DO ANY OF
7 THOSE THINGS.
8 BUT THE IDEA IS TO GIVE EVERYONE AN
9 OPPORTUNITY TO REESTABLISH, MOVE BACK AGAIN, AND CALM THE
10 TROUBLED WATERS SO THAT WE CAN TAKE -- IN CALM REFLECTION WE
11 CAN TAKE -- I CAN MAKE A MEASURED DECISION BASED ON THE
12 PARTIES'S COMPLIANCE WITH THE PERMANENT INJUNCTION.
13 IS THAT WHAT WE'RE TALKING ABOUT?
14 MR. HOLTZ: YES, YOUR HONOR.
15 MS. LARKINS: YES, YOUR HONOR.
16 THE COURT: THAT WILL BE THE ORDER OF THE COURT.
17 DO YOU WANT ME TO SET A DATE IN THREE MONTHS? LET'S SET A
18 DATE IN THREE MONTHS. IF EVERYTHING IS GOING OKAY I'LL PUT
19 YOU ON THE DISMISSAL CALENDAR FOR ANOTHER THREE MONTHS.
20 I'LL GIVE YOU 90 DAYS AFTER THAT. CAN'T DO MUCH MORE THAN
21 AFTER THAT, BECAUSE LOOKING AT THE FILING DATE, IT IS
22 GETTING A LITTLE OLD.
23 IS THAT AGREEABLE?
24 MS. LARKINS: YES, YOUR HONOR.
25 MR. HOLTZ: YES, YOUR HONOR.
26 THE COURT: SET YOU A DATE IN 90 DAYS.
27 THE CLERK: WE CAN SET IT FOR TRIAL CALL ON
28 DAMAGES FOR JULY THE 10TH AT 9:00.
135
1 THE COURT: SET IT FOR STATUS. SET IT FOR STATUS.
2 MR. HOLTZ: YOUR HONOR, WHEN YOU SIGN THE ORDER I
3 THINK HER COPY HAS A QUESTION MARK BY THE WORD
4 "INTIMIDATION." THAT HAS TO BE STRICKEN THROUGH, OR DO WE
5 GET --
6 THE COURT: YOU GAVE ME ONE WITHOUT A QUESTION
7 MARK.
8 MR. HOLTZ: THANK YOU.
9 THE COURT: AND I DIDN'T SIGN IT YET, BUT I WILL
10 RIGHT NOW. OKAY?
11 MS. LARKINS: I'M SORRY, DID YOU SAY 9:00?
12 THE CLERK: JULY 10.
13 MS. LARKINS: JULY 10 AT 9:00?
14 THE CLERK: AT 9:00.
15 MS. LARKINS: THANK YOU.
16 THE COURT: I KNOW YOU ALL PUT YOUR -- DEDICATED
17 YOURSELVES IN GETTING THROUGH THIS AND RESOLVING THIS TODAY,
18 AND THIS WAS NOT THE EASIEST FOR EVERYBODY. I UNDERSTAND
19 THAT. I WANT TO TELL YOU THAT I APPRECIATE THE FACT THAT IT
20 WAS AT LEAST IN THE COURTROOM DONE ON A VERY PROFESSIONAL
21 BASIS.
22 AND ANYTHING ELSE I CAN DO FOR YOU TODAY?
23 MR. HOLTZ: NO, YOUR HONOR.
24 MS. LARKINS: NO THANK YOU, YOUR HONOR.
25 MR. HOLTZ: I DID THE CHECK FOR COURT REPORTER
26 FEES TODAY, AND THAT IS MY HALF.
27 THE COURT: YOU WANT --
28 MR. HOLTZ: I DON'T WANT IT BACK.
136
1 THE COURT: YOU DON'T WANT IT BACK?
2 MR. HOLTZ: I THINK I HAVE TO PAY FOR MY HALF OF
3 THE DAY, DON'T I?
4 THE CLERK: I WILL NEED $365 FROM DEFENDANT'S
5 SIDE.
6 MR. HOLTZ: THANK YOU, YOUR HONOR.
7 MR. WADE: THANK YOU, YOUR HONOR.
8 THE COURT: OKAY?
9 MS. LARKINS: THANK YOU, YOUR HONOR.
10 THE COURT: UNLESS YOU WANT TO WRITE A CHECK. WE
11 ALL KNOW THE STATE OF CALIFORNIA IS IN NEED ALL THE HELP IT
12 CAN GET.
13 MR. HOLTZ: MAY WE HAVE A COPY OF THE ORDER
14 THROUGH YOUR CLERK?
15 THE COURT: YES.
16 MR. HOLTZ: THANK YOU.
17 THE COURT: WE'LL HAVE THAT FOR YOU MOMENTARILY.
18 YOU WAIT. YOU GET YOUR COPY AS WELL.
19 (PROCEEDINGS CONCLUDED.)
20 --000--
21
137
1
2 CERTIFICATE
3
4 STATE OF CALIFORNIA)
: SS.
5 COUNTY OF SAN DIEGO)
6 STUTZ ARTIANO SHINOFF & HOLTZ VS. MAURA LARKINS
7 CASE NO. 37-2007-00076218-CU-DF-CTL - 4/6/2009
8
9 I, MARVEL S. VOTAW, CERTIFIED SHORTHAND
10 REPORTER, AN OFFICIAL REPORTER OF THE SUPERIOR COURT
11 OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DO
12 HEREBY CERTIFY:
13 THAT I REPORTED IN SHORTHAND THE PROCEEDINGS
14 HELD IN THE FOREGOING CAUSE; THAT MY NOTES WERE LATER
15 TRANSCRIBED INTO TYPEWRITING UNDER MY DIRECTION; AND
16 THE FOREGOING PAGES CONTAIN A CORRECT TRANSCRIPTION OF
17 THE PROCEEDINGS.
18 DATED THIS 2ND DAY OF APRIL, 2010.
19
20
________________________________
21 MARVEL S. VOTAW, RPR, CRR
CSR NO. 2817
22 OFFICIAL REPORTER
23
24
25
26
27
28
IN AND FOR THE COUNTY OF SAN DIEGO
DEPARTMENT NO. 68 HON. JUDITH F. HAYES, JUDGE
STUTZ ARTIANO SHINOFF & HOLTZ, )
)
)
PLAINTIFFS, )
)
VS. )
) CASE NO. 37-2007-
MAURA LARKINS, ) 00076218-CU-DF-CTL
)
DEFENDANT. )
_______________________________)
REPORTER'S TRANSCRIPT
APRIL 6, 2009
A P P E A R A N C E S:
FOR THE PLAINTIFF: STUTZ ARTIANO SHINOFF & HOLTZ
BY: JAMES F. HOLTZ, ESQ.
AND JEFFREY P. WADE, JR., ESQ.
ATTORNEYS AT LAW
FOR THE DEFENDANT: IN PROPRIA PERSONA
MARVEL S. VOTAW, RPR, CRR, CSR NO. 2817
OFFICIAL REPORTER
SAN DIEGO SUPERIOR COURT
SAN DIEGO, CALIFORNIA 92101
101
SAN DIEGO, CALIFORNIA - MONDAY - 4/6/2009 - 9:55 A.M.
6 THE COURT: STUTZ, ARTIANO, SHINOFF & HOLTZ VERSUS
7 LARKINS.
8 WE HAVE A PRELIMINARY MATTER TO DISCUSS. I
9 HAVE A QUESTION CONCERNING YOUR REPRESENTATION THAT THE
10 COURT HAD FOUND MALICE, AND WE WERE ONLY PROCEEDING AS TO
11 THE AMOUNT OF DAMAGES.
12 I WENT BACK TO THE ORIGINAL FINDING OF THE
13 COURT BASED ON YOUR MOTION FOR SUMMARY ADJUDICATION.
14 NOWHERE IN OUR SUBMITTED RULING DID I ADDRESS THE ISSUE OF
15 MALICE. IT WAS NOT UNTIL YOU SUBMITTED AN ORDER IN WHICH
16 YOU UNILATERALLY ADDED THAT LANGUAGE. AND THE COURT SIGNED
17 THE ORDER, BUT I'M NOW RESCINDING THAT SIGNING.
18 WHEN YOU SUBMIT A MATTER TO THE COURT -- THIS
19 ISSUE OF MALICE WAS SPECIFICALLY NOT BRIEFED IN YOUR OPENING
20 PAPERS. AND I SHOULD ADD THAT IN YOUR ARGUMENT YOU SAID
21 THAT A FINDING OF MALICE WAS NOT REQUIRED BECAUSE THE
22 PLAINTIFF IS NOT A PUBLIC FIGURE.
23 SO WHAT YOU DID WAS ON A MATTER THAT WAS NOT
24 BRIEFED, NOT ARGUED, ADDED ADDITIONAL MATERIAL TO THE
25 PROPOSED ORDER THAT WAS NOT IN THE COURT'S RULING.
26 SO AT THIS POINT THAT AREA IN THE ORDER IS
27 STRICKEN, AND WE WILL PROCEED ON PUNITIVE DAMAGES. YOU WILL
28 BE REQUIRED TO PROVE FRAUD, MALICE, OR OPPRESSION, AND
102
1 THAT'S WHERE WE ARE.
2 MR. WADE: MAY I ADDRESS THAT POINT, YOUR HONOR?
3 THE COURT: YES.
4 MR. WADE: I APOLOGIZE. IN LOOKING AT OUR POINTS
5 AND AUTHORITIES SUBMITTED TO THE COURT THERE IS A SPECIFIC
6 SECTION ON MALICE.
7 THE COURT: FIND FOR ME, IF YOU WOULD, IN THE
8 SUBMITTED RULING THE AREA WHERE THIS COURT MADE A FINDING ON
9 MALICE.
10 MR. WADE: I'M LOOKING AT THE SEPARATE STATEMENT.
11 I APOLOGIZE. THERE WAS A REFERENCE IN THERE ABOUT MALICE,
12 AND I'M GOING TO TRY TO FIND THE PROPOSED RULING. I
13 APOLOGIZE.
14 I GUESS I WAS LOOKING AT THE TENTATIVE. IT
15 INDICATES THE RULING DOES NOT DISPOSE OF THE ENTIRE ACTION.
16 THE MATTER WILL PROCEED AS TO DAMAGES, PUNITIVES AND
17 INJUNCTIVE RELIEF.
18 THE COURT: WHERE DOES IT SAY THE COURT MAKES A
19 FINDING OF MALICE?
20 MR. WADE: I THOUGHT I ASKED A QUESTION AS FAR AS
21 THE PUNITIVE DAMAGES ISSUE, BECAUSE WE DID BRIEF THE ISSUE
22 OF MALICE TO THIS COURT, AND THE EVIDENCE WAS UNOPPOSED.
23 THE COURT: OKAY. WAIT A MINUTE. WHERE IN THE
24 SUBMITTED RULING DO YOU SEE MENTION OF MALICE?
25 MR. WADE: WELL, I DIDN'T --
26 "THE MATTER WILL PROCEED AS TO DAMAGES, PUNITIVES,
27 AND INJUNCTIVE RELIEF."
28 THE COURT: WHEN YOU'RE PROCEEDING AS TO PUNITIVE
103
1 DAMAGES YOU HAVE THE OBLIGATION TO PROVE BY CLEAR AND
2 CONVINCING EVIDENCE FRAUD, OPPRESSION, OR MALICE. WHAT YOU
3 DID WAS ESTABLISHED DEFAMATION BY SUMMARY ADJUDICATION.
4 THERE WAS NO OPPOSITION.
IT WENT FORWARD ON THAT, AND THERE
5 WAS A FINDING THAT YOU HAD ESTABLISHED THAT, BUT YOUR
6 ARGUMENT IN YOUR MOVING PAPERS WAS THAT MALICE WAS NOT AN
7 ELEMENT OF THAT DEFAMATION PER SE, BECAUSE THE PLAINTIFF IS
8 NOT A PUBLIC FIGURE.
9 SO WHAT YOU, IN FACT, DID WAS YOU WENT AFTER
10 THE FACT AND ADDED MALICE INTO YOUR ORDER.
11 MR. WADE: WELL, YOUR HONOR, AT PAGES 8 THROUGH 13
12 OF OUR MOTION THAT WE SUBMITTED WE DIRECTLY ADDRESSED THE
13 ISSUE OF MALICE, AND THERE WAS NO OPPOSITION TO THAT --
14 THE COURT: LET ME GO FORWARD AGAIN AND SEE IF
15 WE'RE ON THE SAME PAGE, BECAUSE WHAT I'M SAYING TO YOU IS
16 THAT WHEN YOU SUMMARILY ADJUDICATED A CAUSE OF ACTION, YOU
17 SUMMARILY ADJUDICATED DEFAMATION PER SE. IS MALICE AN
18 ELEMENT OF DEFAMATION PER SE, WHEN IT INVOLVES A PRIVATE
19 FIGURE?
20 MR. WADE: WHEN PLAINTIFF IS A PUBLIC FIGURE
21 PLAINTIFFS MUST SHOW DEFENDANT ACTED WITH MALICE -- I
22 APOLOGIZE. I'M FLIPPING THROUGH, YOUR HONOR.
23 THE COURT: SEE, YOU DIDN'T SUMMARILY ADJUDICATE
24 DAMAGES, AND THE BURDEN OF PROOF ON PUNITIVE DAMAGES IS
25 CLEAR AND CONVINCING EVIDENCE. THAT'S WHY -- AND IN THE
26 RULING I SAID YOU'RE GOING FORWARD ON PUNITIVE DAMAGES.
27 MR. WADE: I GUESS THE STANDARD WAS THAT MALICE
28 WAS ACTING WITH RECKLESS DISREGARD WHETHER THE STATEMENTS
104
1 WERE TRUE OR NOT, AND THAT WAS ESTABLISHED IN OUR MOVING
2 PAPERS.
3 THE COURT: THE PROBLEM IS -- NO, YOUR ARGUMENT
4 WAS -- WE'RE NOT GOING TO GO BACK AND FORTH ON THIS, BUT
5 YOUR ARGUMENT IS THAT MALICE WAS NOT REQUIRED. THERE WAS NO
6 FINDING OF MALICE. THAT PORTION OF THE ORDER IS STRICKEN.
7 WE GO FORWARD ON PUNITIVE DAMAGES AND ON DAMAGES AS A RESULT
8 OF DEFAMATION. THAT'S WHAT WE'RE GOING TO DO.
9 MR. HOLTZ: I'D LIKE TO INTRODUCE MYSELF. MY NAME
10 IS JAMES HOLTZ OF THE FIRM OF STUTZ, ARTIANO, SHINOFF &
11 HOLTZ.
12 THE COURT: GOOD MORNING.
13 MR. HOLTZ: I HAD A QUESTION ABOUT THE STATUS AS
14 FAR AS THE ISSUE OF INJUNCTIVE RELIEF. IT IS MY BELIEF --
15 THIS MAY HAVE BEEN TOUCHED ON LAST WEEK. IT IS MY BELIEF
16 THAT IT IS POSSIBLE THAT IF THE PLAINTIFF KNOWS THE SCOPE OF
17 THE COURT'S ORDER FOR INJUNCTIVE RELIEF IT IS NOT CERTAIN
18 THAT A JURY TRIAL ON DAMAGES MAY BE ABSOLUTELY NECESSARY.
19 OUR CONCERN IS TO GET ENOUGH, IF YOU WILL, OR
20 BACKING FOR PERMANENT INJUNCTION TO NOT HAVE TO COME BACK TO
21 COURT AGAIN AND AGAIN IF THERE'S FURTHER DEFAMATIONS IN THE
22 FUTURE.
23 COULD I INQUIRE, AND IF IT PLEASE THE COURT,
24 IF WE COULD DISCUSS THE ISSUE OF THE PERMANENT INJUNCTION.
25 THE COURT: WE CAN DO THAT. AS I UNDERSTOOD, AND
26 CORRECT ME IF I'M WRONG, WHAT COUNSEL WAS SUGGESTING WE DO
27 IS GO THROUGH AND TAKE EVIDENCE WITH REGARD TO THE
28 INJUNCTION, AND THEN THE COURT WOULD ISSUE AN INJUNCTION,
105
1 WHICH WOULD BE REVIEWED BY YOUR LAW FIRM TO SEE IF IT WAS
2 ACCEPTABLE, AND IF IT WAS NOT WE WOULD THEN IMPANEL A JURY,
3 PUT THE SAME EVIDENCE ON AGAIN, AND, IN FACT, TRY THE CASE
4 TWICE.
5 I DON'T HAVE THE LUXURY OF BEING ABLE DO
6 THAT, UNFORTUNATELY. SO WHAT I SAID, AND I HAVE TO THINK
7 THIS IS CORRECT, IS THAT WE'RE ONLY GOING TO DO IT ONCE. IF
8 WE'RE GOING TO DO IT ONCE, IF YOU CLAIM DAMAGES, THAT IS A
9 LEGAL ISSUE, AND WE HAVE THE RIGHT TO A JURY TRIAL, WHICH
10 HAS BEEN ASSERTED BY THE DEFENSE, AND WE'LL GO FORWARD AND
11 PUT IT ON ONCE AS A JURY TRIAL, AND THAT'S IT.
12 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. IN TERMS OF
13 THE PERMANENT INJUNCTION, WE SUBMITTED A PROPOSED ORDER THAT
14 HAD THE FOLLOWING ESSENTIAL ELEMENTS THAT THE COURT HAS
15 FOUND A RIGHT TO AN INJUNCTION TO REMOVE THE DEFAMATORY
16 MATERIAL FROM THE WEBSITE AND NOT DEFAME IN THE FUTURE.
17 IF IT PLEASE THE COURT, I WOULD LIKE TO
18 INQUIRE AS TO WHETHER THAT IS THE ISSUE, WHETHER THE COURT
19 CAN ADDRESS THAT WITHOUT TAKING FURTHER EVIDENCE. IN OTHER
20 WORDS, THE SCOPE OF THE INJUNCTION IS A MATTER FOR THE
21 COURT'S DISCRETION IN TERMS OF HOW QUICKLY SHE WOULD REMOVE
22 MATERIAL FROM THE WEBSITE. AND OUR PROPOSED ORDER,
23 BASICALLY, IS THAT IN THE FUTURE IF THERE SHOULD BE A
24 VIOLATION OF COURT ORDER THAT THE -- RATHER THAN HAVING TO
25 FILE A NEW LAWSUIT, THAT THE COURT MIGHT ENTERTAIN THAT AS A
26 PROCEDURE.
27 THE FACT WE FILED A NOTICED MOTION WITH
28 EVIDENCE AND DECLARATIONS STATING THERE HAS BEEN ANOTHER
106
1 VIOLATION, AND OUR NAME APPEARS ON THE WEBSITE WITH THE
2 DEFAMATORY INFORMATION, AND THAT WE WOULD BRING A MOTION,
3 AND THE COURT WOULD RECEIVE OPPOSITION TO THAT DECLARATION,
4 AND THE COURT WOULD DETERMINE WHETHER THE MATERIAL WAS
5 DEFAMATORY IN VIOLATION OF THE COURT'S ORDER.
6 THE COURT: THAT SOUNDS LIKE SUCH A REASONABLE
7 PLAN. THE PROBLEM IS THERE ARE TWO SIDES IN EVERY LAWSUIT.
8 YOU HAVE A RIGHT TO A REASONABLE AND SPEEDY DETERMINATION OF
9 YOUR ISSUES. SO DOES THE DEFENSE.
10 I DON'T KNOW WHAT WAS ON THE WEBSITE. I
11 DON'T KNOW WHAT WAS SAID. I KNOW JUST IN GENERAL FROM THE
12 SUMMARY JUDGMENT MATERIALS THAT -- WHAT WAS THERE, BUT I
13 DON'T KNOW EXACTLY HOW IT IS PUT UP OR ANY OF THOSE THINGS.
14 HERE IS WHAT I DON'T WANT TO DO. I DON'T
15 WANT TO MAKE AN ORDER THAT COULD BE EASILY DISREGARDED OR
16 AVOIDED. IN OTHER WORDS, THEY HAVE ESTABLISHED BY WAY OF
17 SUMMARY ADJUDICATION THEIR RIGHT TO RELIEF IN TERMS OF AN
18 INJUNCTION. WHAT I WANT TO MAKE SURE HAPPENS IS THAT THAT
19 INJUNCTION WOULD BE EFFECTIVE TO CAUSE THE DEFAMATION TO
20 STOP. IN OTHER WORDS, I WOULD HAVE TO KNOW WHAT IS ON THE
21 WEBSITE TO FASHION THAT.
22 WHAT I SUGGESTED TO COUNSEL IS SUBMIT SOME
23 PLEADINGS WHERE YOU LAY IT ALL OUT FOR ME. THEN I CAN SPIN
24 IT AROUND A LITTLE BIT AND COME UP WITH SOMETHING, AND THAT
25 SEEMS TO ME TO BE A REASONABLE WAY TO PROCEED, EXCEPT FOR
26 THIS PESKY DAMAGES ISSUE, WHICH WE CAN'T ELIMINATE BY
27 SIMPLY -- AS I MENTIONED TO COUNSEL, BY JUDICIAL FIAT I
28 CAN'T SAY THAT WE WILL JUST DISREGARD DAMAGES. IT IS AN
107
1 UNUSUAL POSTURE OF THE CASE WHERE YOU HAVE THE DEFENDANT
2 SAYING LET'S GO TO TRIAL ON DAMAGES, AND YOU HAVE THE
3 PLAINTIFF SAYING NOT SO FAST.
4 SO I CAN'T IGNORE THE DEMAND FOR A JURY
5 TRIAL. I CAN'T IGNORE THE DEMAND FOR DAMAGES. SO YOU PUT
6 THOSE TOGETHER, AND WHAT DO YOU HAVE? YOU HAVE A JURY TRIAL
7 ON DAMAGES. THAT'S WHAT YOU HAVE.
8 NOW, I DON'T CERTAINLY WANT TO BE THE ONE
9 LEADING THE CHARGE TO A JURY TRIAL IN THIS CASE. I WOULD
10 LIKE TO AVOID THAT. THAT'S WHY I SUGGESTED IN TERMS OF -- A
11 COUPLE OF WAYS YOU CAN DO THIS. I DON'T KNOW THAT YOU
12 UNDERSTAND HOW PROFOUNDLY THIS TRIAL CAN AFFECT YOUR FUTURE
13 IN TERMS OF ECONOMICS. I DON'T KNOW TO WHAT EXTENT YOU
14 UNDERSTAND THAT. THAT JURY COULD AWARD DAMAGES THAT WOULD
15 HAVE A PROFOUND EFFECT, BECAUSE THEN THERE WOULD BE A
16 JUDGMENT. NOT GOING INTO THAT.
17 THE BOTTOM LINE IS THAT PEOPLE WHO ARE FACING
18 TRIAL SOMETIMES CONSIDER WHETHER THERE ARE OTHER OPTIONS
19 AVAILABLE IN TERMS OF PUTTING TOGETHER AN AGREEMENT OF SOME
20 SORT.
21 WHAT I'M THINKING IS, IF YOU WERE TO GET --
22 IF YOU WERE TO GET A SETTLEMENT TOGETHER UNDER THE CODE OF
23 CIVIL PROCEDURE AND PUT IT ON THE RECORD PURSUANT TO THE
24 CODE, THEN IT BECOMES ENFORCEABLE. THEN YOU'RE IN A
25 JUDGMENT SITUATION AS OPPOSED TO A -- AS OPPOSED TO AN
26 EVIDENTIARY POSITION.
27 YOU'RE NOT UNDERSTANDING A WORD I'M SAYING.
28 MS. LARKINS: I'M UNDERSTANDING EVERYTHING, YOUR
108
1 HONOR.
2 THE COURT: ARE YOU?
3 MS. LARKINS: I HAVE GOOD COMPREHENSION.
4 THE COURT: YOU DO, BUT I'M TALKING ABOUT THE CODE
5 OF CIVIL PROCEDURE, AND THERE IS A SPECIFIC SECTION THAT IF
6 YOU ENTER INTO A SETTLEMENT AGREEMENT CALLED THE EXPEDITED
7 JUDGMENT PROCEDURE, WHAT HAPPENS IS THAT IF THERE'S A
8 VIOLATION OF THE AGREEMENT, THE SETTLEMENT AGREEMENT, THE
9 OTHER SIDE CAN COME INTO COURT WITH A JUDGMENT, OKAY, AND
10 SAY, HERE, JUDGE, SIGN THE JUDGMENT, BECAUSE THERE WAS A
11 VIOLATION OF THE AGREEMENT.
12 MS. LARKINS: I UNDERSTAND HOW VERY POWERFUL A
13 JUDGMENT IS. IN FACT, THE OTHER DAY MY HUSBAND SAYS, WELL,
14 IF WE HAVE TO PAY A MILLION DOLLARS WE CAN ALWAYS DECLARE
15 BANKRUPTCY. I SAID, NO, NOT FOR A JUDGMENT.
16 THE COURT: YOU MAY NOT HAVE TO GO DOWN THAT
17 TRAIL. JUST LISTEN TO ME. YOU KNOW WHAT A JUDGMENT IS, AND
18 YOU KNOW WHAT THE EXPEDITED JUDGMENT PROCEDURE IS IF THERE
19 IS AN AGREEMENT. THAT'S IF THERE IS AN AGREEMENT, A
20 SETTLEMENT.
21 THE ADVANTAGE TO YOU IS YOU MAY BE ABLE TO
22 STRIKE A BETTER DEAL THAT WAY. THE ADVANTAGE OF THE OTHER
23 SIDE IS THEY GET THE EXPEDITED JUDGMENT PROCEDURE IF THE
24 WEBSITE DOESN'T GO AWAY OR SOMETHING ELSE HAPPENS.
25 THERE'S SOMETHING IN THAT FOR EVERYBODY BUT I
26 CAN'T BE A SETTLEMENT DECIDING JUDGE. I CAN'T GO INTO THE
27 PROS AND CONS. BUT IT SEEMS TO ME THE OPTIONS ARE
28 RELATIVELY FEW, AND THEY INCLUDE TALKING ABOUT SETTLEMENT.
109
1 SEE IF YOU CAN WORK SOMETHING OUT. USE THE EXPEDITED
2 SETTLEMENT PROCEDURE.
3 MR. HOLTZ: I'M SORRY.
4 THE COURT: YOU'RE NOT PAYING ATTENTION? YOU'VE
5 GOT SOMETHING ELSE? WOULD YOU LIKE TO GO INTO THAT RIGHT
6 NOW?
7 MR. WADE: NO, I APOLOGIZE, YOUR HONOR.
8 THE COURT: OKAY? THE OTHER IS TO GO FORWARD ON A
9 JURY TRIAL. IF WE GO FORWARD ON A JURY TRIAL WE ARE OPEN ON
10 THE ISSUE OF FRAUD, MALICE, AND OPPRESSION. A COURT TRIAL
11 HAS TO BE AGREED TO BY BOTH SIDES. IT IS NOT. THAT'S WHERE
12 WE ARE. I DON'T SEE THIS AS SOMETHING YOU CAN HOLD IN
13 ABEYANCE AS A TRIAL MATTER. IF YOU CAME INTO COURT AND SAY
14 I WANT MY TRIAL, YOU'RE GOING TO GET A TRIAL. IF THE OTHER
15 SIDE SAYS THEY WANT A TRIAL, THEY'RE GOING TO GET A TRIAL.
16 THOSE ARE THE OPTIONS AS I HAVE CONSIDERED THEM.
17 I DON'T CARE ABOUT THE PARTIES IN ANY CASE.
18 I CARE ABOUT THE PROCESS. IT HAS TO BE PREDICTABLE AND THE
19 SAME FOR EVERYBODY. IF YOU COME UP WITH A REASONABLE IDEA
20 AND IT ACCOMMODATES THE PROCESS, I'M HAPPY TO LISTEN TO
21 THAT, BUT I DON'T MAKE UP THE RULES.
22 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. I HAVE
23 PREPARED A STIPULATED PERMANENT INJUNCTION WITH CERTAIN
24 TERMS AND CONDITIONS, AND I WOULD LIKE THE OPPORTUNITY, IF
25 THE COURT CAN GIVE US A LITTLE BIT OF A FEW MOMENTS OF TIME
26 AT THIS POINT TO DISCUSS THAT WITH MS. LARKINS AND SEE IF A
27 STIPULATED JUDGMENT, WHICH BASICALLY ASKS THE SAME THING
28 WE'RE ASKING FOR WITH THE PERMANENT INJUNCTION WITH THE
110
1 LIQUIDATED DAMAGES CLAUSE.
2 THE COURT: I'M HAPPY TO GIVE YOU ENOUGH TIME TO
3 TALK ABOUT THAT.
4 A COUPLE THINGS TO KEEP IN MIND. THESE
5 TRIALS, AS MUCH AS YOU WANT TO THINK OF THEM AS A PERFECT
6 ANSWER, THEY ARE AN IMPERFECT VEHICLE AT BEST, AND I THINK
7 YOU UNDERSTAND THAT. AT THE END OF THE TRIAL SOMEBODY PAYS
8 COSTS, OKAY?
9 DO YOU UNDERSTAND ABOUT COSTS? I WON'T GO
10 INTO IT.
11 MS. LARKINS: YES, I DO.
12 THE COURT: IT IS NOT FAIR TO PUT YOU THROUGH A
13 TRIAL AND GET TO THE END AND SAY HERE IS A SURPRISE. THERE
14 ARE COSTS. YOU NEED TO UNDERSTAND THAT.
15 WHEN YOU WALK OUT OF HERE, THE ONLY THING --
16 I'M TALKING GENERALLY, OKAY? BUT THE ONLY THING I WANT YOU
17 TO THINK ABOUT IS MAKING THE BEST DECISION THAT YOU CAN FOR
18 YOURSELF UNDER THE CIRCUMSTANCES. WHAT DOES THAT MEAN?
19 DOESN'T MEAN NECESSARILY A DECISION THAT MAKES YOU REALLY
20 HAPPY. DOESN'T MEAN NECESSARILY A DECISION THAT MAKES YOU
21 REALLY UNHAPPY. IT MEANS YOU MADE THE BEST DECISION YOU CAN
22 FOR YOURSELF UNDER THE CIRCUMSTANCES. IT MEANS YOU WALK OUT
23 TODAY AND SAY GOOD DECISION. YOU WAKE UP TOMORROW AND SAY
24 GOOD DECISION. OKAY? THAT'S ALL I'M GOING TO ASK YOU TO DO
25 IS KEEP AN OPEN MIND.
26 TALK TO THE OTHER SIDE. SEE IF YOU CAN WORK
27 SOMETHING OUT. IF YOU CAN, FINE. IF YOU CAN'T THAT'S FINE
28 TOO, BUT WE STILL HAVE TO WORK OUT FEES AND THINGS LIKE
111
1 THAT, COURT REPORTER FEES, JURY FEES, AND SEE WHO IS PAYING
2 THESE THINGS.
3 THEY'VE WAIVED JURY. I DON'T KNOW WHO IS
4 PAYING THE COURT REPORTER. WHO IS PAYING THE COURT
5 REPORTER?
6 MS. LARKINS: THAT I DON'T KNOW.
7 THE COURT: WELL, THAT WOULD BE YOU, I WOULD
8 THINK, IF YOU WANT THE CASE TO HAVE A COURT REPORTER.
9 MS. LARKINS: OH, OKAY. I'M SORRY FOR MY
10 IGNORANCE. I WILL PAY FOR THE COURT REPORTER.
11 THE COURT: IT IS NOT INTUITIVE. DO YOU WANT A
12 COURT REPORTER?
13 MR. HOLTZ: WE'LL SPLIT THE COST.
14 THE COURT: SPLIT THE COST MEANS WITH WHOM?
15 MR. HOLTZ: I MEAN, IF MS. LARKINS SAYS SHE'S
16 GOING TO PAY FOR THE COURT REPORTER, WE'LL PAY HALF THE
17 COURT REPORTER AND GIVE HER A CHECK EVERYDAY.
18 THE COURT: IS THAT WHAT YOU WANT TO DO?
19 MS. LARKINS: YES.
20 THE COURT: DO YOU KNOW WHAT THE COURT REPORTER
21 COSTS?
22 MS. LARKINS: YES. I HAVE TAKEN DEPOSITIONS AND
23 PAID FOR THEM. I'VE BEEN TAKING WHOLE-DAY DEPOSITIONS AND
24 PAYING FOR THEM.
25 THE COURT: WHAT DOES THE COURT REPORTER COST?
26 THE CLERK: $730 A DAY.
27 THE COURT: IT IS HALF OF $730 A DAY. I'M GIVING
28 YOU INFORMATION SO YOU CAN MAKE AN INTELLIGENT DECISION.
112
1 ANY QUESTIONS?
2 MS. LARKINS: YES, YOUR HONOR. I'M WONDERING
3 ABOUT THE ISSUE OF ATTORNEY FEES AT THE END OF A TRIAL.
4 LET'S JUST SAY THE JURY DIDN'T LIKE MY ATTITUDE, AND THEY --
5 THAT I HAD TO PAY MANY, MANY DOLLARS TO PLAINTIFF.
6 I STILL FEEL THAT EVERYTHING I HAVE DONE I
7 HAVE DONE NOT JUST FOR MYSELF BUT FOR THE EDUCATION SYSTEM
8 AND FOR THE PUBLIC ENTITIES INVOLVED, FOR THE CITIZENS, AND
9 I BELIEVE THAT I HAVE SUBSTANTIAL JUSTIFICATION FOR
10 EVERYTHING I'VE DONE.
11 I HAVE BEEN FOUND LIABLE FOR DEFAMATION.
12 WELL, YES. DEFAMATION PER SE. BUT PART OF THAT WAS THAT I
13 WAS A VERY POOR LAWYER. I WAS NOT A LAWYER AT ALL. AND THE
14 TRUTH IS THAT I BELIEVE AND MORE THAN BELIEVE I -- I KNOW
15 THAT THE THINGS THAT I SAID WERE ALL TRUE.
16 THE COURT: OKAY. WAIT A MINUTE. YOU KNOW WHAT?
17 WE DON'T HAVE TIME RIGHT NOW TO GO THROUGH THIS, BECAUSE I
18 UNDERSTAND THE PATH YOU'RE HEADED DOWN, BUT IT HAS NOTHING
19 TO DO WITH ATTORNEY FEES.
20 BY LAW ATTORNEY FEES CAN BE AWARDED BY
21 CONTRACT OR BY STATUTE. AND HERE WE HAVE -- AND THEY CANNOT
22 BE AWARDED TO PRO PER LITIGANTS. SO THIS IS INTERESTING.
23 WHAT IS YOUR POSITION WITH REGARD TO ATTORNEY
24 FEES?
25 MR. HOLTZ: I KNOW OF NO LAW WHICH WOULD SAY THAT
26 PLAINTIFF IS ENTITLED TO ATTORNEY FEES IN THIS CASE AS COSTS
27 UNDER 1033. I THINK IT IS A POSSIBILITY, HOWEVER, THAT IT
28 IS MY UNDERSTANDING GENERALLY DEFAMATION DAMAGES, THAT THE
113
1 COSTS THAT A DEFENDANT INCURS TO TRY AND STOP THE DEFAMATION
2 CAN BE CONSIDERED AS PART OF GENERAL DAMAGES.
3 PUT ANOTHER WAY?
4 THE COURT: YEAH, THAT WOULD BE GOOD.
5 MR. HOLTZ: IF WE EXPEND A LOT OF HOURS TRYING TO
6 STOP THE DEFAMATION AS A RESULT OF OUR FIRM LOST MONEY IN
7 CONNECTION WITH THE EFFORTS OF OUR LAWYERS, OUR ARGUMENT
8 WOULD BE MAYBE THAT'S AN ELEMENT OF GENERAL DAMAGES.
9 THE COURT: IT IS. IT DOESN'T SOUND LIKE ATTORNEY
10 FEES, AND YOUR FIRM IS REPRESENTING ITSELF.
11 MR. HOLTZ: THAT'S WHY WE HAVE NO ATTORNEY FEES.
12 THEREFORE, I'M JUST SAYING THAT WHAT WE PROBABLY WOULD DO IS
13 PUT ON SOME ORAL EVIDENCE OF THE FACT THAT WE SPENT X NUMBER
14 OF HOURS.
15 THE COURT: I DON'T KNOW THAT -- I'D HAVE TO TAKE
16 A LOOK AT SOME CASE LAW. ORDINARILY, OF COURSE, LITIGATION
17 EXPENSES ARE NOT RECOVERABLE AS DAMAGES.
18 MR. HOLTZ: RIGHT.
19 THE COURT: SO I'D HAVE TO SEE A CASE THAT SAYS IN
20 DEFAMATION THEY ARE.
21 MR. HOLTZ: THEY'RE NOT -- WE HAVEN'T INCURRED THE
22 EXPENSE. WE'VE INCURRED A LOSS OF MANPOWER, IF YOU WILL.
23 THE COURT: WELL, I GUESS THE PEOPLE THAT ARE
24 INVOLVED IN CAR ACCIDENTS AND HAVE TO COME TO COURT HAVE TO
25 GIVE UP THEIR WORK TO COME IN. I SUPPOSE THAT MIGHT GO DOWN
26 THE SAME TRAIL. BUT, AGAIN, I WANT TO READ SOMETHING ON IT.
27 MR. HOLTZ: I HAVE ONE MORE POINT, YOUR HONOR.
28 THE COURT: DID THAT ANSWER YOUR QUESTION? THE
114
1 ANSWER IS NO.
2 MS. LARKINS: I WON'T HAVE TO PAY ATTORNEY FEES.
3 THE COURT: WHAT THEY'RE SAYING IS THEY MAY BE
4 ABLE TO REFASHION ATTORNEY FEES IN SOME FASHION TO MAKE THEM
5 RECOVERABLE. BUT RIGHT NOW THERE IS NO STATUTE, AND THERE
6 IS NO CONTRACT PROVISION. AND REMEMBER THE TWO WAYS I TOLD
7 YOU THAT YOU GET ATTORNEY FEES.
8 NOW THEY'RE SAYING BECAUSE IT IS DEFAMATION
9 THERE MAY BE A WAY TO RECOVER THE LOSS OF HOURS THAT THE LAW
10 FIRM SUFFERED AS A RESULT OF THE DEFAMATION. THEY MAY BE
11 ABLE TO CALL IT THAT AND COME IN SOME WAY TO RECOVER IT THAT
12 WAY.
13 AM I CORRECT?
14 MR. HOLTZ: YES, YES.
15 THE COURT: OKAY.
16 MS. LARKINS: THANK YOU, YOUR HONOR.
17 MR. HOLTZ: ONE MORE POINT, YOUR HONOR? ON THE
18 POINT OF INJUNCTIVE RELIEF.
19 THE COURT: YES.
20 MR. HOLTZ: THE MOTION FOR SUMMARY JUDGMENT
21 PLEADINGS HAD INCLUDED THE WEBSITE INFORMATION. SO THAT
22 WEBSITE INFORMATION IS ALREADY PART OF THE RECORD.
23 THE COURT: IS THAT EVERYTHING YOU WANT ME TO LOOK
24 AT?
25 MS. LARKINS: IF IT WOULD BE OF ANY HELP, I MADE A
26 COPY FOR THE COURT AND FOR PLAINTIFFS OF MY CURRENT WEBSITE
27 AS I UNDERSTAND TODAY. I CAN JUST GIVE IT TO YOU.
28 THE COURT: WAIT A MINUTE, BECAUSE THEY CAN'T READ
115
1 AND LISTEN AT THE SAME TIME.
2 MR. HOLTZ: GIVE US ONE MINUTE, YOUR HONOR.
3 THE COURT: YOU CAN.
4 MR. HOLTZ: MY RECOLLECTION -- MY RECOLLECTION IS
5 THAT THE MOTION FOR SUMMARY JUDGMENT INCLUDED PAGES FROM THE
6 WEBSITE.
7 MR. WADE: THAT IS CORRECT.
8 MR. HOLTZ: GIVE US ONE MINUTE. WE PROBABLY HAVE
9 A SEPARATE STATEMENT OF THE FACTS RIGHT HERE.
10 THE COURT: YOU CAN DO THAT. THE PROBLEM IS WHEN
11 WE'RE GOING TO TRIAL ON THE INJUNCTION AND GOING TO TRIAL ON
12 DAMAGES THAT THERE'S NO RIGHT TO JURY, OF COURSE. BUT
13 MS. LARKINS HAS A RIGHT TO PUT ON HER EVIDENCE WITH REGARD
14 TO THE WEBSITE.
15 MR. HOLTZ: I UNDERSTAND, YOUR HONOR. IT SEEMS
16 LIKE THERE IS A POSSIBILITY OF STREAMLINING THE ISSUE OF
17 SUBMISSION OF EVIDENCE --
18 THE COURT: I LIKE THE WAY YOU THINK.
19 MR. HOLTZ: -- RELATIVE TO THE ISSUE OF INJUNCTIVE
20 RELIEF.
21 THE COURT: WHAT YOU NEED TO DO IS TALK. SPEND A
22 LITTLE TIME TALKING TO THE OTHER SIDE. SEE IF YOU CAN
23 WITHOUT DOING VIOLENCE TO YOUR CONSCIENCE TO ARRIVE AT
24 SOMETHING THAT WON'T PUT YOU IN JEOPARDY.
25 MS. LARKINS: YES, YOUR HONOR.
26 THE COURT: OKAY. IF YOU CAN, FINE. IF YOU
27 CAN'T, FINE. BUT -- OKAY?
28 MS. LARKINS: YES, YOUR HONOR.
116
1 MR. WADE: PURSUANT TO THE COURT'S EARLIER RULING,
2 YOUR HONOR, DO YOU WANT ME TO SUBMIT AN AMENDED ORDER?
3 WOULD THAT SATISFY THE COURT?
4 THE COURT: I THINK IT WOULD BE BETTER IF YOU DID,
5 YEAH. I UNDERSTAND THE CONFUSION.
6 MR. WADE: IT WAS NO INTENT ON MY PART TO DECEIVE.
7 THE COURT: I HAD AN OPPORTUNITY TO WATCH YOU
8 PRACTICE FOR A WHILE, AND I AM -- ONE OF THE THINGS I FOUND
9 A BRIGHT SPOT ON WAS I APPRECIATE THE WAY IN WHICH YOU
10 PRACTICE, AND I THINK YOU'RE VERY ENTHUSIASTIC, AND I'VE
11 BEEN IMPRESSED BY THE WAY YOU PUT YOUR CASE ON, AND I CAN
12 UNDERSTAND THIS CONFUSION.
13 BECAUSE, HONESTLY, IT IS A TECHNICAL AREA,
14 AND IF YOU DON'T DO DEFAMATION EVERYDAY, AND I DON'T DO
15 DEFAMATION EVERYDAY, YOU HAVE TO STUDY UP ON IT, WHICH IS
16 WHAT CAUSED ME TO GO HIT THE BOOKS AND GO SEE EXACTLY WHAT
17 THE RULINGS WAS AND READ ABOUT SOME CASES TO PREPARE FOR
18 TODAY, WHICH I DID.
19 BUT IN DOING THAT, I REALIZED THAT THERE WAS
20 SOME CONFUSION THAT REALLY NEEDED TO BE STRAIGHTENED OUT,
21 BECAUSE WHAT I WAS RUNNING UP AGAINST WAS THE BURDEN OF
22 PROOF. AND HOW CAN YOU HAVE A DETERMINATION OF MALICE
23 UNLESS THERE WAS A FINDING IN REGARD TO DAMAGES? AND HERE
24 WE SPECIFICALLY SAID WE'RE GOING TO TRIAL ON DAMAGES. SO
25 THAT GOT ME BACK INTO MALICE UNDER DEFAMATION, BUT MALICE
26 DOESN'T APPLY UNLESS IT IS A PUBLIC FIGURE, AND WE DON'T
27 HAVE A PUBLIC FIGURE BY YOUR ARGUMENT, AT LEAST.
28 MR. WADE: CORRECT.
117
1 THE COURT: THAT'S WHAT TOOK ME DOWN THAT --
2 HONESTLY, I GET VERY NERVOUS WHEN I SEE A VARIATION IN THE
3 ORDER AND THE RULING, BECAUSE I'M USED TO SEEING JUST A
4 RESTATEMENT OF THE RULING THAT WE TAKE QUITE A BIT OF TIME
5 PUTTING TOGETHER IN THE ORDER. I DON'T --
6 THAT'S WHERE WE ARE. TAKE AS MUCH TIME AS
7 YOU NEED AND WE'LL GET BACK.
8 MR. HOLTZ: THANK YOU, YOUR HONOR.
9 MS. LARKINS: THANK YOU.
10 (RECESS.)
11 THE COURT: ALL RIGHT, WHERE ARE WE? WE'RE ON THE
12 RECORD IN THE LARKIN MATTER WITH BOTH SIDES PRESENT.
13 MR. HOLTZ: YOUR HONOR, WE TRIED TO REACH SOME
14 RESOLUTION ON THE ISSUES AND WERE UNABLE TO DO SO. WE'RE
15 GOING TO PROCEED TO TRIAL, AND THE COURT SHOULD -- KNOW FROM
16 OUR POSITION UP FRONT THAT WE'RE GOING TO TRY TO RESTRICT
17 THE ISSUES OF DOCUMENTS TO THE PORTIONS OF THE WEBSITE THAT
18 WERE ADDRESSED IN THE MOTION FOR SUMMARY JUDGMENT WHICH WAS
19 GRANTED. SO WE'RE GOING HAVE A LIMITED SET OF DOCUMENTS
20 WHICH RELATE DIRECTLY TO THOSE STATEMENTS TO SHOW THE EFFECT
21 ON THE FIRM.
22 THE COURT: ALL RIGHT.
23 MR. HOLTZ: AS FAR AS THE COURT'S ISSUE OF
24 INJUNCTIVE RELIEF, WE THINK THAT THERE MAY BE ENOUGH IN THAT
25 RECORD, IN THOSE FEW DOCUMENTS ON WHICH THE COURT GRANTED
26 SUMMARY ADJUDICATION, FOR THE COURT TO FASHION INJUNCTIVE
27 RELIEF. HOWEVER, WE UNDERSTAND THE COURT HAS NOT DECIDED
28 THAT ISSUE, AND WE'RE READY TO PROCEED WITH THE MOTIONS IN
118
1 LIMINE AND OTHER PRELIMINARY MATTERS.
2 THE COURT: ALL RIGHT.
3 MR. WADE: JEFFREY WADE FOR THE RECORD.
4 WE DID SUBMIT A MOTION IN LIMINE
5 ATTEMPTING -- THIS CASE IS ABOUT DAMAGES, ABOUT
6 RE-LITIGATING LIABILITY ISSUES LIMITED TO THE SEVEN OR EIGHT
7 STATEMENTS WITHIN THE MOTION FOR SUMMARY ADJUDICATION THAT
8 THIS COURT RULED UPON. IN OTHER WORDS, WE DON'T WANT TO
9 OPEN UP OTHER ISSUES THAT AREN'T CONTAINED WITHIN THERE.
10 I DON'T THINK I'M BEING CLEAR IN MY HEAD.
11 LET ME REPEAT. WE'RE JUST LIMITING TO THE ISSUE OF DAMAGES
12 AS I UNDERSTAND THE SCOPE OF THIS TRIAL, TO WHETHER OR NOT
13 MS. LARKINS ACTED WITH MALICE, AND IF THAT IS FOUND,
14 PUNITIVE DAMAGES.
15 THE COURT: ALL RIGHT. GIVE ME JUST A MINUTE.
16 THIS WAS TUCKED IN THE BACK OF YOUR BRIEF.
17 MR. WADE: I APOLOGIZE.
18 (PAUSE IN THE PROCEEDINGS.)
19 THE COURT: OKAY. I'M NOT EXACTLY SURE WHAT
20 YOU'RE TALKING ABOUT IN TERMS OF EVIDENCE. IF YOU'VE GOT TO
21 SHOW MALICE, YOU'VE GOT TO SHOW FRAUD, MALICE, OR
22 OPPRESSION. YOU'VE GOT TO SHOW THAT THE STATEMENTS WERE
23 DESIGNED TO CAUSE INJURY, RIGHT? HOW ARE YOU GOING TO DO
24 THAT?
25 MR. WADE: OR RECKLESS DISREGARD, TRUTH OR
26 FALSITY.
27 THE COURT: SO MS. LARKINS HAS A RIGHT TO SHOW
28 THAT THEY WERE MADE WITHOUT THE INTENT TO DAMAGE OR WITHOUT
119
1 RECKLESS DISREGARD, RIGHT?
2 MR. WADE: I -- YEAH, I GET THAT POINT. I GUESS
3 WHAT I'M CONCERNED ABOUT IS THIS COURT HAS ALREADY
4 DETERMINED THAT THEY WERE DEFAMATORY. SO WHETHER THEY'RE
5 TRUE OR NOT SHOULD NOT BE RE-LITIGATED, AND THAT'S WHY I
6 GUESS I WAS HUNG UP ON THE PUNITIVE DAMAGES AND THE MALICE
7 ISSUE, IS THAT IF THEY'RE THOUGHT TRUE, THERE'S FALSEHOODS,
8 THEN THAT HURDLE IS OVERCOME. SO I DON'T NEED TO RELITIGATE
9 THAT ISSUE IN FRONT OF THE JURY OR EXPLAIN IT TO THEM THAT,
10 YOU KNOW, HERE ARE THE STATEMENTS. THESE HAVE ALREADY BEEN
11 DECIDED TO BE FALSE. YOU'RE NOT GOING TO HEAR --
12 I WANTED TO LIMIT IT TO THE STATEMENTS IN THE
13 SUMMARY JUDGMENT IS WHAT I UNDERSTAND WE'RE PROCEEDING ON,
14 SUMMARY ADJUDICATION. SO TO AVOID RE-LITIGATING WHY THEY'RE
15 TRUE, I THINK THEY'RE TRUE, SHE ALREADY HAD THAT CHANCE.
16 THAT FORUM CAME AND WENT IN THE SUMMARY ADJUDICATION STAGE,
17 AND THIS CASE WAS DECIDED AS A MATTER OF LAW, NO, THEY'RE
18 NOT TRUE.
19 THE COURT: THE PROBLEM IS GOING TO BE IN REGARD
20 TO MALICE. IF YOU HAVE TO PUT ON A DEFENSE FOR MALICE, WHAT
21 DOES THAT CONSIST OF?
22 MR. WADE: WELL, I GUESS IT WOULD -- I GUESS --
23 GENERALLY SPEAKING, IF IT WAS THE ENTIRE TRIAL AND WE WERE
24 TRYING ALL THE ISSUES AT ONCE, LIABILITY, CAUSATION, AND
25 DAMAGES, ET CETERA, IT WOULD BE THE OPPORTUNITY. BUT
26 BECAUSE OF THE UNIQUE NATURE OF THE SITUATION WE'RE IN, IT
27 HAS ALREADY BEEN DECIDED TO BE DEFAMATORY. IT IS LIMITED
28 TO --
120
1 THE COURT: YOU'VE GOT ME IN THIS INTELLECTUAL
2 CONUNDRUM, BECAUSE THE PROBLEM IS IF YOU'RE TRYING TO SHOW
3 SOMETHING IS NOT MALICIOUS, WOULDN'T EVIDENCE OF THE TRUTH
4 OF THE MATTER BE RELEVANT TO THAT DETERMINATION?
5 MR. WADE: I GUESS, GENERALLY SPEAKING, IN FULL
6 PHASE OF THE TRIAL, THAT WOULD BE --
7 THE COURT: NO. I'M ASKING IF IN THE DAMAGES
8 PHASE IF THERE HAS TO BE A DETERMINATION OF FRAUD, MALICE,
9 OR OPPRESSION, IN DETERMINING THE ISSUE OF MALICE WHETHER IT
10 WAS MADE -- A STATEMENT WAS MADE WITH RECKLESS DISREGARD,
11 WOULDN'T THE TRUTH OF THE A STATEMENT BE RELEVANT?
12 MR. HOLTZ: YOUR HONOR --
13 THE COURT: NO, ONE. WE HAVE TO HAVE A RULE IN
14 HERE, AND IT IS USUALLY ONE ATTORNEY, ONE ISSUE. I WILL LET
15 YOU TALK AMONG YOURSELVES SO THAT WE GET A FULL AIRING OF
16 THE ISSUE, BUT I REALLY CAN'T HAVE -- BECAUSE IN CASES WITH
17 SIX LAWYERS IT NEVER WORKS OUT. SO --
18 MR. WADE: I GUESS AVOIDING THE TRUTH --
19 THE COURT: TALK FOR A MINUTE.
20 (A DISCUSSION BETWEEN COUNSEL WAS HELD
21 OFF THE RECORD.).
22 MR. WADE: I GUESS THE COUNTER TO THAT ARGUMENT
23 WOULD BE THAT THE ISSUE OF TRUTH OR FALSEHOOD HAS BEEN
24 DECIDED. TO COUNTER WHETHER OR NOT SHE ACTED IN GOOD FAITH
25 SHE CAN SAY I DID IT FOR ANOTHER PURPOSE, NOT THAT I DID
26 IT -- NOT BECAUSE IT WAS TRUE. I DID IT FOR WHATEVER MOTIVE
27 IT WAS THAT SHE DID DO IT, BECAUSE THEN INTENT IS MOTIVE AND
28 GOES TO THAT ISSUE.
121
1 NOT WHETHER OR NOT -- NOT WHETHER WE
2 RELITIGATE WHETHER IT IS TRUE OR NOT. AND I THINK IT ALSO
3 COMES DOWN TO OTHER FACTORS IN THAT REGARD. IT IS NOT
4 WHETHER TRUTH OR FALSITY -- AGAIN, THAT ISSUE HAS BEEN
5 DECIDED.
6 THE COURT: WE'RE GOING TO GO ON A
7 QUESTION-BY-QUESTION BASIS. I'M NOT GOING TO GIVE YOU
8 OVERALL RULING THAT THE ISSUE OF THE TRUTH OF STATEMENTS IS
9 IRRELEVANT, BECAUSE WE'RE GOING TO RELITIGATE THAT OVER AND
10 OVER AGAIN. IT DEPENDS ON THE EVIDENCE. IT DEPENDS ON THE
11 QUESTION.
12 SEE, IF YOU LOOK AT IT -- WHAT ARE THE
13 ELEMENTS OF DEFAMATION PER SE?
14 MR. WADE: CAUGHT ME OFF GUARD.
15 THE COURT: THAT'S GOOD.
16 MR. WADE: THE DEFENDANT MADE ONE OR MORE
17 STATEMENTS TO A PERSON, THAT THIS PERSON OR THESE PEOPLE
18 REASONABLY UNDERSTOOD THAT THE STATEMENTS WERE ABOUT
19 PLAINTIFF, THAT THE PERSON OR THESE PEOPLE REASONABLY
20 UNDERSTOOD THE STATEMENTS TO INJURE ITS REPUTATION IN HIS
21 OCCUPATION OR FIELD, AND THE STATEMENTS WERE FALSE, AND/OR
22 DEFENDANT FAILED TO USE REASONABLE CARE TO DISCERN THE TRUTH
23 OR FALSITY OF THE STATEMENT.
24 THE COURT: I STILL THINK WE'RE GOING TO GO
25 QUESTION BY QUESTION. I THINK THAT'S THE BEST WAY TO HANDLE
26 IT.
27 ALL RIGHT. SO DID YOU WISH TO BE HEARD?
28 MS. LARKINS: YES, YOUR HONOR. I WOULD LIKE TO
122
1 SAY THAT THIS REMINDS ME OF A SENTENCING IN A CRIMINAL CASE.
2 THERE'S ALL KINDS OF INFORMATION THAT HAS TO BE KEPT OUT OF
3 THE ORIGINAL CRIMINAL TRIAL FOR VARIOUS REASONS. BUT THEN
4 IT IS BROUGHT BACK IN DURING THE SENTENCING PHASE. AND I
5 THINK OF THIS CASE AS SOMEWHAT LIKE THAT, THAT MAYBE A JUDGE
6 OR JURY REACHED A VERDICT OF INNOCENT OR GUILTY, BUT THEN
7 NOW IS THE TIME TO DO THE PUNISHMENT, AND MORE
8 INFORMATION -- IT SHOULD BE ALLOWED TO BE HEARD.
9 I NEED TO SHOW MY REASONS FOR BELIEVING THAT
10 THE STATEMENTS WERE TRUE. I ALSO CONSIDER THAT, WELL, YOU
11 KNOW, IF SOMEONE IS ACQUITTED OF A MURDER, LIKE OJ, LEGALLY
12 THEY'RE INNOCENT, BUT THE LAW ISN'T A HUNDRED PERCENT RIGHT
13 ALL THE TIME. SO IT IS POSSIBLE THAT THE PERSON ACTUALLY
14 DID THE THING.
15 IN THIS CASE, FOR EXAMPLE, I DID A VERY POOR
16 JOB OF PRESENTING MY EVIDENCE. SO THE COURT REALLY NEVER
17 GOT TO LOOK AT A LOT OF THE EVIDENCE. I DIDN'T PRODUCE IT
18 IN TIME. A DECISION HAD TO BE MADE. IT WAS MADE BASED ON
19 WHAT THE COURT HAD AT THAT TIME, BUT NOW THAT WE'RE
20 DETERMINING PUNISHMENT IT SEEMS THAT THE JURY HAS A RIGHT TO
21 HEAR ALL THE FACTS OR AT LEAST SOME MORE OF THE FACTS.
22 THE COURT: ALL RIGHT. I'M NOT ENTIRELY SURE I
23 UNDERSTOOD EVERYTHING YOU JUST SAID. I UNDERSTOOD SOME OF
24 IT, I THINK. THE QUESTION IS WHEN DID YOU WANT TO START
25 PICKING A JURY?
26 MR. HOLTZ: HOW ABOUT 1:30, YOUR HONOR?
27 THE COURT: OKAY. SEE YOU AT 1:30.
28 MR. HOLTZ: THANK YOU.
123
1 MR. WADE: THANK YOU, YOUR HONOR.
2 MS. LARKINS: THANK YOU, YOUR HONOR.
3 THE COURT: AND IN ANSWER TO YOUR QUESTION, THAT
4 DOESN'T CHANGE MY INITIAL REACTION. THIS IS KIND OF
5 INTERESTING, THE INTERPLAY BETWEEN THE DAMAGES ISSUE AND THE
6 SUMMARY ADJUDICATION ISSUE.
7 MR. WADE: THE DEFAMATION PER SE IS THAT IT
8 INJURES US IN OUR REPUTATION, THAT IT WAS DEFAMATORY PER SE.
9 THAT'S WHY I WANTED TO LIMIT IT.
10 THE COURT: LET ME TAKE A LOOK AT IT AND THINK
11 ABOUT IT OVER LUNCH. THANK YOU.
12 MR. WADE: THE COURT DID SAY 1:30?
13 THE COURT: I DID SAY 1:30. THAT'S RIGHT.
14 (LUNCH RECESS.)
15 --000--
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20
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24
25
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27
28
124
1 SAN DIEGO, CALIFORNIA - MONDAY - 4/6/2009 - 1:35 P.M.
2 --000--
3 THE COURT: HOPE YOU ALL HAD A NICE LUNCH.
4 I CAME UP WITH A PLAN C. WE TALKED ABOUT
5 PLAN A AND PLAN B. HERE IS SOMETHING THAT OCCURRED TO ME
6 OVER LUNCH. IT IS WORTH PERHAPS A MINUTE OR TWO OF THOUGHT.
7 WHAT IF WE WERE TO STAY THIS ACTION FOR A
8 PERIOD OF ONE YEAR, AND DURING THAT YEAR IT WOULD BE MY
9 THOUGHT THAT THIS WOULD BE A COOLING OFF PERIOD, DURING
10 WHICH I WOULD ASSUME THAT YOU WOULD TAKE ACTION TO RESOLVE
11 WHATEVER YOU'RE DOING IN TERMS OF A WEBSITE, AND WE WOULD
12 NOT GO FORWARD ON THE TRIAL AT THIS TIME. BUT EITHER SIDE
13 COULD COME IN AND REACTIVATE, AND THE CASE WILL BE TRIED
14 WITHIN A REASONABLE PERIOD OF TIME, 30 DAYS OR SO. THAT'S
15 WHAT I'M THINKING.
16 IN OTHER WORDS, EVERYBODY KIND OF GETS WHAT
17 THEY WANT. YOU GET TO KEEP AT LEAST $2,000 THAT I SEE IS
18 YOUR BEST CASE SCENARIO, AND YOU GET TO HAVE YOUR TRIAL ON
19 DAMAGES, ALBEIT NOT RIGHT AWAY.
20 MS. LARKINS: YOUR HONOR, I AM WILLING TO TAKE OFF
21 THOSE SPECIFIC STATEMENTS. I KNOW I DON'T HAVE A CHOICE,
22 BUT LET ME JUST SAY THIS. I AM --
23 THE COURT: NO, AT THIS POINT YOU DO HAVE A
24 CHOICE. THE PROBLEM IS YOU HAVE GOT TO THINK ABOUT WHAT
25 YOU'RE DOING IN TERMS OF THE EFFECT IT IS GOING TO HAVE AND
26 WHETHER OR NOT GOING OUT TO DINNER WITH YOUR MONEY MIGHT BE
27 MORE ENJOYABLE THAN DOING WHATEVER YOU'RE DOING. HONESTLY,
28 I DON'T KNOW THE EVIDENCE, NOR DO I WANT TO AT THIS POINT.
125
1 BUT IF YOU HAVE -- IF YOU ARE DOING THINGS THAT ARE JUST
2 GOING TO CAUSE THIS TO CONTINUE, YOU MIGHT WANT TO REFLECT
3 ON THAT.
4 ANYWAY, IT DOES WHAT YOU WANT ON THE
5 PLAINTIFF'S SIDE BECAUSE IT DOESN'T KILL OFF THE ISSUE OF
6 DAMAGES, PUNITIVE OR OTHERWISE, AND IT DOES WHAT YOU WANT IN
7 TERMS OF STOPS THE MACHINE SO YOU DON'T END UP BEING CHASED
8 AROUND WITH A JUDGMENT, AND IT IS SOMETHING TO THINK ABOUT.
9 ALTHOUGH, THIS IS A FASCINATING AREA, AND I DID SPEND THE
10 LUNCH HOUR READING ALL ABOUT DEFAMATION, AND I NOW KNOW WHAT
11 MALICE IN FACT IS, AND THE FACT THAT THAT'S WHERE YOU'RE
12 GOING.
13 SO WHATEVER YOU ALL WANT TO DO, BUT IT DOES
14 GIVE YOU AN OPTION, AND IT GIVES YOU AN OPTION THAT GIVES
15 EVERYONE AN OPPORTUNITY TO PERHAPS GET WHAT THEY WANT
16 WITHOUT, ON THE ONE HAND, PUTTING ON EVIDENCE IN FRONT OF
17 THE JURY, ON THE OTHER HAND, TAKING YOUR MONEY HOME IN YOUR
18 WALLET, WHICH IS WHERE MOST PEOPLE LIKE TO KEEP IT.
19 THINK ABOUT WHAT YOU WANT. I STOPPED THE
20 JURY IN MIDSTREAM SO THAT YOU WON'T BE RUNNING INTO THEM IN
21 THE HALLWAY. BUT I ASK YOU TO TALK ABOUT THIS A LITTLE BIT
22 AND SEE IF THIS MEETS YOUR REQUIREMENTS.
23 YOU HAVE TO DECIDE WHAT IS IMPORTANT AND WHAT
24 ISN'T IMPORTANT TO YOU, BUT I WOULD SUGGEST TO YOU -- I
25 DON'T KNOW THE FACTS -- IF YOU HAVE A WEBSITE, CONSIDER
26 WHAT'S INVOLVED IN JUST SAYING, OKAY, IT IS OVER, AND GOING
27 HOME. ARE THERE BENEFITS TO THAT? ARE THERE DISADVANTAGES
28 TO THAT? YOU HAVE TO DECIDE. YOU CONSIDER THEM AND SEE
126
1 WHAT IS REALLY IMPORTANT TO YOU.
2 BUT SOMETIMES, WE REALIZE THERE ARE A LIMITED
3 NUMBER OF HEART BEATS, AND MAYBE THIS IS THE DEFINING MOMENT
4 IN TERMS OF YOUR ENTIRE LIFE. BUT IF IT ISN'T, FACE IT,
5 MOVE ON. IF IT IS, SO BE IT.
6 GO OUT IN THE HALLWAY AND TALK.
7 MR. HOLTZ: YOUR HONOR, MAY I ASK A QUESTION?
8 THE COURT: SURE.
9 MR. HOLTZ: PART OF WHAT WE'RE TRYING TO
10 ACCOMPLISH IS TO HAVE SOMETHING IN PLACE WHICH WOULD COMPEL
11 THE DEFENDANT TO REMOVE DEFAMATORY MATERIAL ON THE WEBSITE
12 ABOUT MY LAW FIRM. THEREFORE, I UNDERSTAND THE JURY IS
13 WAITING TO COME IN, BUT I HAVE A COUPLE CONCERNS.
14 NUMBER ONE, MY FIRST CONCERN WOULD BE THAT
15 THERE WOULD BE NO ORDER -- A PRELIMINARY INJUNCTION IN PLACE
16 FROM TODAY FOR A YEAR FORWARD.
17 THE COURT: WELL, THERE ARE STILL A LOT OF OPTIONS
18 AVAILABLE TO YOU, AND THIS IS SOMETHING THAT OCCURRED TO ME
19 AS WELL TO TALK TO YOU ABOUT. AGAIN, I HAVE TO STAY BACK A
20 LITTLE BIT FROM THIS. BUT IT SEEMS TO ME JUST IN GENERAL
21 TERMS, IN TERMS OF CIVIL PROCEDURE, THERE ARE THINGS THAT
22 ARE AVAILABLE TO YOU. YOU CAN EITHER -- IN OTHER WORDS, IF
23 DEFAMATORY REMARKS WERE PUBLISHED IN THE PAST, YOU BROUGHT A
24 LAWSUIT, YOU HAD RESOLUTION OR YOU DIDN'T, YOUR OPTIONS ARE
25 IF THEY'RE REINSTITUTED TO FILE A NEW ACTION OR PROCEED ON
26 THE OLD ACTION.
27 YOU'VE GOT LOTS OF OPTIONS. IT IS NOT AS IF
28 ANYTHING IS GOING TO FORECLOSE YOU FROM GOING FORWARD. IT
127
1 IS JUST THAT YOU HAVE TO DECIDE WHAT YOU WANT TO DO, AND I
2 DECIDED I WOULD GO ALONG WITH YOU TO SOME EXTENT TO GO ALONG
3 WITH A DAY OF THINGS TO LET THINGS COOL OFF, AND SOMETIMES
4 TIME CAN HAVE A CATHARTIC EFFECT, AS LONG AS YOU CAN GET TO
5 A POINT YOU CAN LIVE WITH RIGHT NOW, AND EVERYBODY GOES HOME
6 AND THINKS ABOUT IT. AND MAYBE UPON FURTHER REFLECTION
7 THERE ARE OTHER THINGS THAT ARE MORE IMPORTANT.
8 SO THE ANSWER IS YES AND NO. LET'S LEAVE IT
9 THERE. DECIDE WHAT YOU WANT TO DO, AND THEN DO IT. IF I'M
10 ANALYZING THIS CORRECTLY, THERE MAY BE THINGS THAT ARE
11 HOLDING THIS UP THAT THIS MAYBE TAKES CARE OF.
12 MR. HOLTZ: YOUR HONOR, IF WE HAVE A YEAR UNDER A
13 STAY --
14 THE COURT: EITHER SIDE CAN REACTIVATE.
15 MR. HOLTZ: I UNDERSTAND. I UNDERSTAND WHERE
16 YOU'RE GOING WITH THIS. MY IMMEDIATE CONCERN WOULD BE TO
17 HAVE THE MOTION FOR SUMMARY ADJUDICATION IMPLEMENTED SUCH AS
18 TO REMOVE DEFAMATORY MATERIAL FROM HER WEBSITES TODAY OR AS
19 SOON AS THE COURT WOULD DEEM APPROPRIATE.
20 THE COURT: I CAN ALWAYS ISSUE A PRELIMINARY
21 INJUNCTION, RIGHT?
22 MR. HOLTZ: CORRECT.
23 THE COURT: AND THAT WOULD BE AS TO DEFAMATORY
24 MATERIAL. BUT IT SEEMS TO ME THAT IF YOU HAVE AN AGREEMENT
25 AND STIPULATION, I CAN FASHION AN ORDER IN ACCORD WITH THAT.
26 WHATEVER IT IS ON THAT WEBSITE, I CAN SAY DON'T DO THAT
27 ANYMORE, AND THAT'S A COURT ORDER.
28 MS. LARKINS: MAY I TELL YOU, YOUR HONOR, WHAT
128
1 SEEMS TO BE THE DIFFERENCE OF OPINION --
2 THE COURT: NO. YOU KNOW WHY I'M SAYING NO?
3 MS. LARKINS: FINE.
4 THE COURT: NO. LISTEN TO ME, BECAUSE IT SOUNDS
5 RUDE, AND I WANT TO EXPLAIN WHY IT ISN'T. I CAN'T REALLY
6 LISTEN TO THE FACTS OF THE CASE, AND I'M AFRAID YOU'RE GOING
7 TO SPILL OVER SOME OF THOSE FACTS. THE REASON WHY I CAN'T
8 IS WE'RE TALKING SETTLEMENT AT THIS POINT.
9 MS. LARKINS: OKAY.
10 THE COURT: WHAT I DON'T WANT TO DO IS HAVE FACTS
11 OF THE CASE THAT ARE NOT PRESENTED IN EVIDENCE COME BEFORE
12 ME SO THAT AN ARGUMENT COULD BE MADE THAT I WASN'T FAIRLY
13 HEARING THE EVIDENCE. AND SO WHAT I'M TRYING TO DO IS KEEP
14 IT ON A REALLY GENERAL AND, I GUESS, PRETTY OBTUSE LEVEL
15 JUST BECAUSE I'M TRYING TO STAND BACK A LITTLE BIT FROM IT
16 AND LET YOU FOLKS WORK OUT IF THAT IS POSSIBLE.
17 I DO TRIALS. I WILL DO THE NEXT TRIAL. I
18 WILL DO ANOTHER TRIAL. I JUST DO TRIALS. WHATEVER YOU WANT
19 TO DO IS FINE. I'M REALLY TRYING TO FIND WAYS TO SAVE YOU
20 FROM GETTING YOURSELF INTO A POSITION -- THERE'S NO
21 CROSS-COMPLAINT. YOU CAN'T WIN ON THIS OTHER THAN YOU CAN
22 CUT DOWN THE AMOUNT OF DAMAGE, WHICH I'M TRYING TO FIND A
23 WAY TO LET YOU GO HOME WITH YOUR MONEY ON THIS ONE. OKAY?
24 MS. LARKINS: THANK YOU, YOUR HONOR.
25 THE COURT: BUT THAT MEANS THAT YOU'VE GOT TO BE A
26 LITTLE BIT FLEXIBLE, AND IF YOU THINK AT THIS POINT YOU'RE
27 IN A GREAT BARGAINING POSITION, OH, YOU NEED TO LOOK AT THIS
28 AGAIN, BECAUSE YOU'RE REALLY NOT. YOU'VE HAD THAT SUMMARY
129
1 ADJUDICATION. THAT IS PROBLEMATIC.
2 I WILL SAY NO MORE OTHER THAN I WANT YOU TO
3 GIVE IT SOME SERIOUS THOUGHT. SEE WHAT YOU CAN LIVE WITH.
4 YOU DO THE SAME. SEE WHAT YOU CAN LIVE WITH. THIS IS THE
5 RUSH TO JUDGMENT, OF COURSE, BUT NOT RIGHT NOW. WE'RE GOING
6 TO TAKE THE TIME TO SEE. IF WE NEED TO DO IT, WE CAN DO IT.
7 IF WE DON'T HAVE TO DO IT, WE'VE GIVEN IT ADEQUATE
8 REFLECTION. THAT'S ALL I'M TRYING TO DO.
9 MR. HOLTZ: THANK YOU, YOUR HONOR.
10 MR. WADE: THANK YOU, YOUR HONOR.
11 MS. LARKINS: THANK YOU, YOUR HONOR.
12 (RECESS.)
13 THE COURT: ALL RIGHT. GOOD AFTERNOON.
14 MR. HOLTZ: GOOD AFTERNOON, YOUR HONOR. WE'VE MET
15 AT LENGTH, AND WE THINK WE ARE CLOSE TO A STIPULATED
16 PERMANENT INJUNCTION.
17 THE COURT: OKAY.
18 MR. HOLTZ: AND WE'VE WORKED ON THE FORM OF THE
19 ORDER. WE HAVE A DISAGREEMENT ABOUT ONE WORD. BUT IT IS A
20 CONCEPT. AND WE ARE GENERALLY ALSO IN AGREEMENT WITH THE
21 COOLING OFF PERIOD FOR THE DAMAGES TRIAL, WITH A MINIMUM OF
22 THREE MONTHS.
23 THE COURT: FOR WHAT? I'M SORRY.
24 MR. HOLTZ: A MINIMUM OF A THREE-MONTH COOLING OFF
25 PERIOD BEFORE WE COULD SEEK LIFTING OF A STAY.
26 THE COURT: OKAY.
27 MR. HOLTZ: MS. LARKINS, DO YOU WANT TO -- YOUR
28 HONOR, IF IT PLEASE THE COURT, I WOULD LIKE TO PROVIDE THE
130
1 COURT A COPY OF WHAT THE LANGUAGE OF THE PROPOSED STIPULATED
2 PERMANENT INJUNCTION IS.
3 THE COURT: SURE. WHY DON'T YOU HAND THAT TO
4 RENE.
5 MR. HOLTZ: MAY I LOOK ON?
6 THE COURT: YOU BET.
7 MS. LARKINS: YES.
8 MR. HOLTZ: HERE.
9 THE COURT: THANK YOU.
10 MR. HOLTZ: IF YOU'D LIKE, I'D LIKE TO READ MY
11 HANDWRITING INTO THE RECORD.
12 MR. WADE: I BELIEVE THAT'S FINE.
13 THE COURT: I CAN READ IT.
14 MR. HOLTZ: OKAY.
15 THE COURT: OKAY. WHAT IS THE DISAGREEMENT ABOUT?
16 MR. HOLTZ: IN PARAGRAPH TWO AT THE END THE
17 HANDWRITTEN PART, MS. LARKINS DISAGREES WITH THE INCLUSION
18 OF THE WORD "INTIMIDATION."
19 THE COURT: LET ME READ IT AGAIN.
20 WHAT'S THE MATTER WITH "INTIMIDATION"?
21 MS. LARKINS: I DON'T BELIEVE THAT WAS IN THE
22 COMPLAINT. I DON'T THINK IT WAS LITIGATED.
23 THE COURT: OKAY. IS THAT SOMETHING YOU HAVE A
24 SERIOUS DISAGREEMENT WITH?
25 MS. LARKINS: NO, NO.
26 THE COURT: YOU'RE NOT GOING TO PUT ANY LANGUAGE
27 ACCUSING THEM OF INTIMIDATION?
28 MS. LARKINS: I JUST THOUGHT -- YOU COULD ADD A 131
1 LOT OF WORDS.
2 THE COURT: THAT'S RIGHT, BUT PICK YOUR BATTLES.
3 IS THAT ONE YOU WANT TO FIGHT?
4 MS. LARKINS: NO.
5 THE COURT: OKAY.
6 MS. LARKINS: I WOULD JUST LIKE THE --
7 THE COURT: OKAY. WHAT WE'RE TRYING TO DO HERE IS
8 CALM TROUBLED WATERS. OKAY? IF THAT'S OUR GOAL, EVERYONE'S
9 GOAL, THEN WE NEED TO LOOK AT THIS REALISTICALLY. YOU HAVE
10 TO TONE IT DOWN IN THE WEBSITE, TAKE THIS LAW FIRM OFF THE
11 WEBSITE.
12 THAT IS ADVICE. IT IS NOT PART OF THE ORDER.
13 BUT SAVE YOURSELF SOME TROUBLE. A LAWYER DOES WHAT A LAWYER
14 DOES IN EVERY CASE, AND IF WE HAD PEOPLE PUTTING UP WEBSITES
15 FOR EVERY LAWYER THEY DIDN'T LIKE WE'D HAVE SO MANY WEBSITES
16 THE INTERNET WOULD BE BOGGLED, IF THAT IS SOMETHING THAT CAN
17 HAPPEN ELECTRONICALLY. SO AT LEAST THINK ABOUT IT. BUT THE
18 ORDER IS WHAT THE ORDER IS, AND IT IS AGREEABLE.
19 I HAVE BEFORE ME A DOCUMENT ENTITLED, "ORDER
20 ON PERMANENT INJUNCTION." IT HAS BEEN SUBMITTED TO THE
21 COURT FOR MY SIGNATURE. IT IS MY UNDERSTANDING THAT THE
22 PARTIES AGREE ON THIS.
23 IS THAT CORRECT, COUNSEL?
24 MR. HOLTZ: YES, YOUR HONOR. THIS IS A STIPULATED
25 PERMANENT INJUNCTION.
26 THE COURT: DID YOU READ IT?
27 MS. LARKINS: YES, I DID.
28 THE COURT: DID YOU UNDERSTAND IT?
132
1 MS. LARKINS: YES, I DID.
2 THE COURT: DO YOU HAVE ANY QUESTIONS ABOUT
3 ANYTHING?
4 MS. LARKINS: NO, I DON'T.
5 THE COURT: HAVE YOU HAD ENOUGH TIME TO LOOK AT
6 THIS?
7 MS. LARKINS: OH, YES.
8 THE COURT: YOU UNDERSTAND IF YOU WANTED YOU COULD
9 GO TAKE IT TO A LAWYER, BUT YOU'VE CHOSEN TO REPRESENT
10 YOURSELF. IS THAT WHAT YOU WANT TO CONTINUE TO DO?
11 MS. LARKINS: YES.
12 THE COURT: OKAY. IS THIS AGREEABLE TO YOU?
13 MS. LARKINS: IT MOST CERTAINLY IS.
14 THE COURT: IS THIS WHAT YOU WANT TO DO?
15 MS. LARKINS: THIS IS WHAT I WANT TO DO.
16 THE COURT: I'M ASSUMING, COUNSEL, THAT IF I ASKED
17 YOU THE SAME QUESTIONS THE ANSWERS WOULD BE THE SAME; IS
18 THAT CORRECT?
19 MR. HOLTZ: THAT'S CORRECT. I AM REPRESENTING THE
20 PLAINTIFF, THE STUTZ, ARTIANO, SHINOFF & HOLTZ LAW FIRM.
21 THE COURT: I'M GOING TO GO AHEAD AND SIGN THIS.
22 ANYTHING BEFORE I SIGN IT? ANYBODY WANT TO SAY ANYTHING?
23 I DIDN'T ASK THOSE QUESTIONS BECAUSE I SAW
24 ANYTHING IN HERE THAT IS QUESTIONABLE. THE REASON I ASK YOU
25 THOSE QUESTIONS IS THAT IN EVERY AGREEMENT THAT'S GIVEN TO
26 THE COURT I ASK THE SAME QUESTIONS. THAT IS TO PREVENT
27 SOMEBODY FROM COMING BACK LATER AND SAYING, NO, I DIDN'T
28 REALLY MEAN TO SAY WHAT I SAID OR DO WHAT I DID.
133
1 THAT REMEDY IS NOT GOING TO BE AVAILABLE,
2 BECAUSE WE GO THROUGH THIS EXERCISE IN MAKING SURE THAT
3 EVERYBODY UNDERSTANDS WHAT THEY'RE DOING, ESPECIALLY IF YOU
4 DON'T HAVE A LAWYER HERE. I WANT TO MAKE SURE YOU READ IT,
5 UNDERSTAND IT, AND DON'T HAVE ANY QUESTIONS.
6 MS. LARKINS: YOUR HONOR, ACTUALLY, I WAS
7 WONDERING IF THE THREE-MONTH COOLING OFF PERIOD SHOULD BE
8 WRITTEN DOWN OR JUST --
9 THE COURT: IT WILL BE IN THE MINUTES.
10 MS. LARKINS: OKAY.
11 THE COURT: IT DOESN'T HAVE TO BE PART OF THIS,
12 BECAUSE WHEN I SAY IT, WHAT IS GOING TO HAPPEN IS THE CLERK
13 IS GOING TO WRITE IT DOWN. IT WILL GO INTO THE MINUTES.
14 IS THAT AGREEABLE?
15 MR. HOLTZ: YES, YOUR HONOR. AS I EXPLAINED TO
16 MS. LARKINS OR WE DISCUSSED, IT IS APPLES AND ORANGES. WE
17 HAVE PERMANENT INJUNCTION AND A STAY, IF YOU WILL, PER THE
18 COURT'S SUGGESTION SUBJECT TO REVOCATION. IF EITHER PARTIES
19 DESIRE, NO EARLIER THAN THREE MONTHS.
20 THE COURT: HERE IS WHAT I'M ANTICIPATING IS GOING
21 TO HAPPEN. SO WHAT YOU HAVE HERE IS A PERMANENT INJUNCTION
22 THAT YOU'RE AGREEING TO. THAT MEANS YOU'RE GOING TO STOP
23 WHATEVER THAT CONDUCT WAS BY THE TERMS OF IT.
24 IN ADDITION TO THAT, WE HAVE THAT PESKY ISSUE
25 OF THE DAMAGES. REMEMBER? THAT'S THE JURY TRIAL ISSUE.
26 WELL, IF WE GO FORWARD ON THAT, THEN THERE'S LIKELY TO BE A
27 JUDGMENT, AND THEN YOU HAVE TO DEAL WITH ALL THE THINGS THAT
28 WE TALKED ABOUT EARLIER.
134
1 WHAT WE'RE GOING TO DO IS PUT THAT OFF FOR
2 THREE MONTHS, AND I'M GOING TAKE A LOOK AT IT AT THE END OF
3 THREE MONTHS, MAYBE COME BACK, IF YOU WANT TO COME BACK.
4 MAKE SURE THAT EVERYTHING IS GOING WELL. AT THE END OF
5 THREE MONTHS I MAY PUT IT OVER ANOTHER THREE MONTHS. I MAY
6 SAY WE'RE GOING TO SCHEDULE THE TRIAL. I MAY DO ANY OF
7 THOSE THINGS.
8 BUT THE IDEA IS TO GIVE EVERYONE AN
9 OPPORTUNITY TO REESTABLISH, MOVE BACK AGAIN, AND CALM THE
10 TROUBLED WATERS SO THAT WE CAN TAKE -- IN CALM REFLECTION WE
11 CAN TAKE -- I CAN MAKE A MEASURED DECISION BASED ON THE
12 PARTIES'S COMPLIANCE WITH THE PERMANENT INJUNCTION.
13 IS THAT WHAT WE'RE TALKING ABOUT?
14 MR. HOLTZ: YES, YOUR HONOR.
15 MS. LARKINS: YES, YOUR HONOR.
16 THE COURT: THAT WILL BE THE ORDER OF THE COURT.
17 DO YOU WANT ME TO SET A DATE IN THREE MONTHS? LET'S SET A
18 DATE IN THREE MONTHS. IF EVERYTHING IS GOING OKAY I'LL PUT
19 YOU ON THE DISMISSAL CALENDAR FOR ANOTHER THREE MONTHS.
20 I'LL GIVE YOU 90 DAYS AFTER THAT. CAN'T DO MUCH MORE THAN
21 AFTER THAT, BECAUSE LOOKING AT THE FILING DATE, IT IS
22 GETTING A LITTLE OLD.
23 IS THAT AGREEABLE?
24 MS. LARKINS: YES, YOUR HONOR.
25 MR. HOLTZ: YES, YOUR HONOR.
26 THE COURT: SET YOU A DATE IN 90 DAYS.
27 THE CLERK: WE CAN SET IT FOR TRIAL CALL ON
28 DAMAGES FOR JULY THE 10TH AT 9:00.
135
1 THE COURT: SET IT FOR STATUS. SET IT FOR STATUS.
2 MR. HOLTZ: YOUR HONOR, WHEN YOU SIGN THE ORDER I
3 THINK HER COPY HAS A QUESTION MARK BY THE WORD
4 "INTIMIDATION." THAT HAS TO BE STRICKEN THROUGH, OR DO WE
5 GET --
6 THE COURT: YOU GAVE ME ONE WITHOUT A QUESTION
7 MARK.
8 MR. HOLTZ: THANK YOU.
9 THE COURT: AND I DIDN'T SIGN IT YET, BUT I WILL
10 RIGHT NOW. OKAY?
11 MS. LARKINS: I'M SORRY, DID YOU SAY 9:00?
12 THE CLERK: JULY 10.
13 MS. LARKINS: JULY 10 AT 9:00?
14 THE CLERK: AT 9:00.
15 MS. LARKINS: THANK YOU.
16 THE COURT: I KNOW YOU ALL PUT YOUR -- DEDICATED
17 YOURSELVES IN GETTING THROUGH THIS AND RESOLVING THIS TODAY,
18 AND THIS WAS NOT THE EASIEST FOR EVERYBODY. I UNDERSTAND
19 THAT. I WANT TO TELL YOU THAT I APPRECIATE THE FACT THAT IT
20 WAS AT LEAST IN THE COURTROOM DONE ON A VERY PROFESSIONAL
21 BASIS.
22 AND ANYTHING ELSE I CAN DO FOR YOU TODAY?
23 MR. HOLTZ: NO, YOUR HONOR.
24 MS. LARKINS: NO THANK YOU, YOUR HONOR.
25 MR. HOLTZ: I DID THE CHECK FOR COURT REPORTER
26 FEES TODAY, AND THAT IS MY HALF.
27 THE COURT: YOU WANT --
28 MR. HOLTZ: I DON'T WANT IT BACK.
136
1 THE COURT: YOU DON'T WANT IT BACK?
2 MR. HOLTZ: I THINK I HAVE TO PAY FOR MY HALF OF
3 THE DAY, DON'T I?
4 THE CLERK: I WILL NEED $365 FROM DEFENDANT'S
5 SIDE.
6 MR. HOLTZ: THANK YOU, YOUR HONOR.
7 MR. WADE: THANK YOU, YOUR HONOR.
8 THE COURT: OKAY?
9 MS. LARKINS: THANK YOU, YOUR HONOR.
10 THE COURT: UNLESS YOU WANT TO WRITE A CHECK. WE
11 ALL KNOW THE STATE OF CALIFORNIA IS IN NEED ALL THE HELP IT
12 CAN GET.
13 MR. HOLTZ: MAY WE HAVE A COPY OF THE ORDER
14 THROUGH YOUR CLERK?
15 THE COURT: YES.
16 MR. HOLTZ: THANK YOU.
17 THE COURT: WE'LL HAVE THAT FOR YOU MOMENTARILY.
18 YOU WAIT. YOU GET YOUR COPY AS WELL.
19 (PROCEEDINGS CONCLUDED.)
20 --000--
21
137
1
2 CERTIFICATE
3
4 STATE OF CALIFORNIA)
: SS.
5 COUNTY OF SAN DIEGO)
6 STUTZ ARTIANO SHINOFF & HOLTZ VS. MAURA LARKINS
7 CASE NO. 37-2007-00076218-CU-DF-CTL - 4/6/2009
8
9 I, MARVEL S. VOTAW, CERTIFIED SHORTHAND
10 REPORTER, AN OFFICIAL REPORTER OF THE SUPERIOR COURT
11 OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DO
12 HEREBY CERTIFY:
13 THAT I REPORTED IN SHORTHAND THE PROCEEDINGS
14 HELD IN THE FOREGOING CAUSE; THAT MY NOTES WERE LATER
15 TRANSCRIBED INTO TYPEWRITING UNDER MY DIRECTION; AND
16 THE FOREGOING PAGES CONTAIN A CORRECT TRANSCRIPTION OF
17 THE PROCEEDINGS.
18 DATED THIS 2ND DAY OF APRIL, 2010.
19
20
________________________________
21 MARVEL S. VOTAW, RPR, CRR
CSR NO. 2817
22 OFFICIAL REPORTER
23
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April 6, 2009 court transcript
Court transcripts