“Reasonable” is the New “Justice”
Judges and attorneys say the most absurd things these days. They treat falsehoods as truth by hiding behind ambiguous words like reasonable.
A San Diego attorney, Corinne C. Bertsche of Lewis Brisbois Bisgaard & Smith LLP, is arguing that I should pay tens of thousands of dollars in attorney fees that she says her clients incurred defending my appeal. That appeal challenged an earlier attorney-fee award entered after Ms. Bertsche filed an anti-SLAPP motion on behalf of her clients, Ellis Stern and Alan Goldberg of Stern & Goldberg.
I had sued Stern and Goldberg for derivative legal malpractice and conversion. When I learned that I could not pursue a derivative action on behalf of an LLC without an attorney, and the court denied my request to retain counsel on a limited-scope basis, I voluntarily dismissed the case.
Judge Janis L. Sammartino nevertheless concluded that because I dismissed the lawsuit, Stern and Goldberg were the prevailing parties on the anti-SLAPP motion. In the years that followed, Judge Todd Robinson and Judge Linda Lopez agreed. The anti-SLAPP motion was treated as a success, even though legal malpractice and conversion claims are rarely the kind of speech-related claims anti-SLAPP statutes are intended to protect.
But there is a more fundamental problem.
The anti-SLAPP motion should never have been necessary.
A derivative action filed on behalf of an LLC by someone who is not licensed to practice law is a nullity. It is void. The defendants did not need to file a motion running hundreds of pages. A short filing pointing out that the complaint was a legal nullity would have sufficed.
There was another threshold issue as well.
The federal court lacked subject matter jurisdiction. That is not an obscure legal doctrine. It is a basic principle taught in the first year of law school. An LLC is a citizen of every state in which any of its members is a citizen. When an LLC member names the LLC as a defendant in a state-law case filed in federal court, complete diversity is destroyed. Without complete diversity, there is no diversity jurisdiction.
Instead of litigating an anti-SLAPP motion, any of the attorneys—or any of the district or appellate judges who reviewed the case—could have disposed of it in a paragraph explaining that the federal court lacked subject matter jurisdiction.
Instead, the attorneys generated substantial fees they now seek to recover from me, while the courts devoted years of judicial resources to a case that could have been resolved at the outset.
In her latest reply, Ms. Bertsche uses the word reasonable six times. She repeatedly insists that these fees are reasonable.
Really?
Ms. Bertsche reportedly charges $450 per hour. If an attorney billing at that rate did not recognize two well-settled, first-year legal principles—that a non-attorney cannot maintain a derivative action on behalf of an LLC and that complete diversity is destroyed when an LLC member sues the LLC in federal court—then it is difficult to understand how charging $450 per hour is reasonable.
If, on the other hand, she did recognize those principles but chose to pursue a lengthy anti-SLAPP motion anyway, it is equally difficult to understand why the resulting fees should be considered reasonable.
Either way, the repeated invocation of the word reasonable does not make the fees reasonable.
Perhaps American courts should retire words like reasonable and justice. They have become so elastic that they can be stretched to justify almost anything. That should concern everyone who depends on the courts to apply the law as it is, not as convenient labels make it appear.
UPDATE (June 16, 2024) Ninth Circuit Court of Appeals teaches Pro Se Litigant and the District Court Judges and $450 per Hour Attorneys: Federal Court Lacks Jurisdiction – Order Must Be Vacated
In Hammett v. Sherman, et al, the court went to unprecedented lengths, sanctioning the unauthorized practice of law, to transfer assets from the pro se litigant to attorneys and their wealthy clients, also attorneys.
The case is on appeal in Federal Court. It is likely that the California State Courts would not allow this case to have proceeded. Allowing a derivative action advocated by a non-lawyer to proceed is tantamount to authorizing the advocate to practice law.
Here is a list of district court judges who insisted that the derivative case on behalf of Silver Strand Plaza, LLC proceed on the merits, even though it was filed by someone who is not an attorney.
Janis L. Sammartino, nominated by former President George W. Bush.
Todd W. Robinson, nominated by former President Donald Trump.
Linda Lopez, nominated by President Joseph Biden.
While researching for this blog post, I came across an interesting story about Judge Sammartino’s son, a convicted sex offender who had sex with his 17-year-old student while teaching at San Diego’s most prestigious private schools in 2020. It will be interesting to find more about how the 36-year-old judge’s son was treated by the court. Click here to read the story on the NYPost.
One “reason” the judge’s son gave for violating his young student was that he had a bike accident that caused a head injury. My son fell two stories onto his head, and though it caused brain damage to his speech center and hearing loss, his reasoning was not diminished at all, and was in fact improved. Of course, every injury is different, and each individual might respond differently, but I can just imagine Janis Sammartino and her lawyer friends sitting around coming up with this bullshit excuse. Why not attribute his bad conduct to seeing his unethical mother get away with her corruption and his resultant feeling of entitlement?
Also, the Ninth Circuit Court of Appeal brought a case to the attention of all litigants and asked for supplemental briefing.
Carden v. Arkoma Assocs., 494 U.S. 185 (1990), a decades old SCOTUS case, decided that any entity other than a corporation, such as a limited partnership, is a citizen in each state where any member is a citizen. This includes even limited partners’ citizenship. That makes it impossible for the federal courts to take diversity jurisdiction. (I have not done all the research yet. My supplemental brief will be expounded upon.)
While digging into Carden, I realized that, without the derivative malpractice case against the attorney defendants, the remining damages against the attorney defendants fell far below the $75,000 minimum threshold for federal diversity jurisdiction. Those defendants should have been bifurcated out of the case six years ago, and the remaining conversion case sent to state court.
Jurisdictional problems should be brought up by the Court. Kudos to the Ninth Circuit for doing its job, even if they ignored the jurisdictional error for two previous bids at interlocutory appeal of the order for attorney fees on the anti-SLAPP motion brought by the attorney defendants and their $450 per hour attorneys.
Judge Sammartino, Judge Robinson, and Judge Lopez just wasted an insane amount of public and private resources by keeping the case active in the federal court system for over 300 documents. The Court of Appeals and a sickly old lady who is not an attorney had to school the team of highly paid attorneys and the team of corrupt judges.
Your tax dollars and your justice system at work.
Judge Janis L. Sammartino’s Dishonest Statements Reiterated by Appellate Brief
The Doc of the Day is my Informal Reply Brief in a case that was originally presided over by Federal District Judge Janis L. Sammartino. The case was transferred to Judge Todd W. Robinson, and then passed off to Judge Linda Lopez. The subsequent judges failed to correct Judge Sammartino’s errors on reconsideration.
Enjoy reading the FREE document.
This is not legal advice. I am not an attorney.
In fact, I hope to find an attorney to represent me if the Ninth Circuit Court of Appeals remands with instructions to give me leave to amend or proceed to discovery. That way my attorney can file the derivative claims against the attorneys who gave dual representation to the LLC and parties who had conflicting interests.
Contact me at bohemian_books@yahoo.com.
Steppingstone to SCOTUS
Did you miss me?
I’ve spent the last seven days writing an informal appellate brief for the Ninth Circuit.
The 9th accommodates pro se litigants. They have a form to fill out that does not require a table of contents, a table of authorities,,,heck, they don’t even require a layperson to include citations to caselaw.
I’m not aware of the statistics for how many pro se appeals are successful at the Ninth Circuit Court of Appeals compared to other courts around the country. At least they don’t waste our time, energy and money as badly as say, the Eighth Circuit.
I filed a notice of appeal at the 8th, paid the filing fee and those rat bastards denied me summarily. It was a case against judge Susan Weaver that was denied at the Eastern District of Arkansas by Judge Billy Roy Wilson. Injustices Steven M. Colloton, Raymond W. Gruender and Bobby E. Shepherd didn’t wait for me to file a brief. Zippity-zip, they affirmed the pack of lies old man Wilson wrote when he threw my case out in favor of all defendants before co-defendant Attorney William Zac White even filed a motion to dismiss.
The system is rigged against pro se litigants, meaning the common person who can’t afford to hire an attorney.
I’ve been ill these last few years. I haven’t had the energy to fight.
When the 8th circuit denied my appeal without letting me file a brief, I should have filed a motion for reconsideration and then a petition for certiorari to the United States Supreme Court. I didn’t.
I’m sure I will get another chance.
In the meantime, here is the informal brief that kept me too busy to visit with you, my dear reader.
A Higher Law 