Sanai v. Saltz – the California appellate brief

by Ted Frank on June 17, 2008

You will recall from the previous post that Judge Thomas Green, the second judge to hear Sanai v. Saltz, was not impressed with Cyrus Sanai‘s litigation tactics:

It is Defendants’ position that [Sanai's] entire action had no legitimate purpose, and was filed merely for purposes of harassment, and in bad faith. That much is apparent. Keep in mind, this entire case started because Plaintiff’s landlord sent a letter purporting to (lawfully) raise his rent. It contained an obvious typographical error inasmuch as it proposed a rent lower than the amount Plaintiff had been paying, even while apologizing for raising the rent. … Plaintiff has been litigating this case for about seven years, all because he attempted to seize on this obvious typographical error.This court specifically finds that this entire action has been prosecuted and maintained in bad faith and for the purpose of harassment.

[Sanai] knew at the outset that there was no merit to any of his claims. He has admitted to such in deposition. No reasonable person would have thought he had a valid lease agreement under the circumstances. Plaintiff knew he had no reasonable belief that his rent had been lowered. Thus, he has always known that he owed a legitimate debt, because he knowingly and deliberately underpaid his rent. The debt that was reported to the credit agencies was indisputably valid. Therefore, Plaintiff’s action was frivolous and without merit.

Further, Plaintiff’s prosecution of this matter has been malicious, as evidenced by, among other things, the altering of documents presented to the Clerk’s office and the recording of illegal judgment liens with malice, and then refusing to remove them despite being ordered by the Court to do so. …

In the 35 years this Court has been actively engaged in litigation, 20 as an attorney and 15 as a Judge, this Court has never seen such an abuse of process as the prosecution by Plaintiff of this lawsuit.

We promised Mr. Sanai that we would post his appellate brief, which will be very persuasive to experienced attorneys as to who should prevail on appeal, and here it is:

When it comes to issuing written orders, Judge Green is a disaster. …

It is an understatement to say that demonstrating to Judge Green his deficient understanding of civil procedure—i.e. that striking a memorandum of costs after the costs have been reduced to a judgment is a null and void act—infuriated him. Respondents filed a motion to require Sanai to file acknowledgements of satisfaction of judgment and to recall and quash abstracts of judgment, and requested damages, including attorneys fees as a component of such damages. APPAPP 474-475. Judge Green granted the motion and fined Sanai $500.00, but did not grant the request for damages or attorneys fees as a component of damages. …

Sanai filed two separate petitions for writs of mandamus seeking to have Judge Green removed pursuant to Code Civ. Proc. §170.1-3. Both were summarily denied.

The careful observer will note at pp. 38-39 that the lower court granted attorneys’ fees under 15 U.S.C. § 1681n(c) and Mr. Sanai’s brief relies on 15 U.S.C. § 1681n(a) in arguing that the fee award is improper. One imagines the respondents’ brief pointed this out, and we’ll be happy to post that brief, too.

Sanai protests that we didn’t immediately post the brief. Sanai e-mailed the brief to Walter at 6:37 pm, Walter e-mailed it to me at 7:23 pm, and I received the e-mail when I returned home from a Chinese restaurant with my domestic partner at about 10 pm. (I had the cumin fish, which was quite tasty, and, in my opinion, was worth the delay to this post.)

{ 22 comments }

1 Melvin H. 06.17.08 at 11:08 pm

I think I am thoroughly lost and confused here. There have been five or six titled posts and over 100 posts–seemingly a quarter by Cyrus Sanai, another quarter by those who run the site–and references to at least four or five different cases; multiple appeals; and so on.

Let me see if I get this right–and remember Cyrus, that I am NOT A LAWYER. If I understand right, the original case was a typo by a landlord on what should have been a rent raise on Sanai, but was on the note a decline in rent; Mr. Sanai refused to pay what should have been the correct amount, instead paying the lower amount; the landlord sued Sanai, and . . . SEVEN **** YEARS LATER, we’re still litigating???

Sorry, Mr. Frank and Mr. Olson; didn’t mean to swear, even if replaced with asterisks.

Seems to me we have here a vexatious litigant here, and no disciplinary system to shut this off.

If either of you (Sanai or Frank) can put the original case in a post–short form, please Mr. Sanai!–please do so; I have become so confused.

2 matt 06.17.08 at 11:21 pm

if it makes you feel better melvin your not alone =p

3 Ken 06.18.08 at 12:40 am

I have to ask — has anyone ever seen Cyrus Sanai and Jack Thompson in a room at the same time?

4 Richard Nieporent 06.18.08 at 8:11 am

Just what is the matter with the legal system that it is so unwilling to discipline its members? Yes I know that the Bar Association exists for the express purpose of protecting its members. However, the Bar Association has gone beyond the pale when it comes to allowing its members to get away with outrageous behavior. It takes truly egregious conduct on the part of a lawyer (e.g., Mike Nifong) before they are willing to sanction him or her. Until the Bar Association is willing to act responsibly we are going to see this kind of behavior happening over and over again.

5 Stephen Gianelli 06.18.08 at 8:46 am

I read 20 pages or so of Sanai’s appellate brief and it is tough sledding.

Having done some appellate work myself allow me one preliminary observation: appellate courts do not warm up to personal attacks on the trial judge. Referring to a judge by name and then stating he is a “disaster” is going to immediately tank your credibility and many provoke sanctions on appeal.

Second, Sanai incorporates by reference the record in his prior many appeals in the same case, he incorporates by reference matters incorporated by reference in those prior appeals, so his record citations require a diagram to understand. (Not to mention, incorporating by reference the record in prior appellate proceedings is wholly improper and is going to annoy the court of appeal even more.

Third, Sanai describes rulings by the trial court without giving the court’s justification for the ruling.

For example, Sanai describes how he filed a memorandum of costs incurred prior to judgment (CCP sec. 1033.5) BUT SERVED THE MEMORANDUM OF COSTS NOT ON OPPOSING COUNSEL, BUT ON the REPRESENTED OPPOSING PARTIES, then—when counsel did not move to strike or tax within the required 3 weeks—Sanai deemed the issue of costs “settled” and enforceable as a judgment. And Sanai is essentially calling the trial court dense for not seeing it his way when that “unorthodox” service of the memorandum came to light.

Sanai relies on a statute found in a completely different title of the code relating to the service of papers related to THE ENFORCEMENT OF JUDGMENTS against judgment debtors for his ability to serve the opposing parties themselves –which are inapplicable on their face to the kind of costs Sanai was seeking at that point. Therefore, the time limit for those parties never began to run, let alone expire.

I strongly suspect that is why the trial court struck the memorandum when it was brought to his attention, but the reader of Sanai’s brief is left in the dark.

In any event, like Overlawyered, I wish Mr. Sanai the best of luck. With a sanction award exceeding $1 million against him, the appellate panel’s familiarity with Sanai, the kind of findings that the trial court made in connection with the sanctions award, and Sanai’s offensive references to the trial judge by name, he is going to need it.

6 Stephen Gianelli 06.18.08 at 9:03 am

PS:

There appears to be no less than twelve pending writ and appellate proceedings initiated by Sanai in the case arising out of the disputed $2,400 in rent and related credit ding—all decided by the same panel of judges who will decide Sanai’s two pending appeals in that matter—including his appeal from the $ 1 M sanctions award against him.

This does not include several petitions filed in that matter before the California supreme Court.

This is one appellate opinion I cannot wait to read.

7 Stephen Gianelli 06.18.08 at 9:04 am

Make that 12 PRIOR writ and appellate proceedings in addition to the 2 PENDING. My bad.

8 Richard Nieporent 06.18.08 at 11:01 am

After reading all of the comments on Overlawyer and Patterico’s Pontifications I am starting to believe that the Devil’s Advocate was really a documentary!

9 twotrunk 06.18.08 at 1:30 pm

Why is it not surprising that the apparatchiks of the right wing legal blogosphere are choosing to attack Sanai rather then considering whether Kozinski’s conduct is an embarrassment to the judiciary?

I am just going to take a wild guess and say that if some supposedly left-wing judge was discovered to get his jollies poking fun at priests as pedophiles, looking at pictures of young men sucking their johnsons, and so forth that Mr. Frank’s posts would _not_ concentrate on the background of the person who discovered this information.

10 Cyrus Sanai 06.18.08 at 3:56 pm

Wow.

It is amazing that even people who claim to have legal degrees on this site, or claiming appellate experience, don’t know what they are talking about.

Incorporating the record in prior appeals is specifically permitted under CRC 8.147(b). Lawyers who comment on matters as to which they are ignorant are pretty much committing sample malpractice in public.

As for my negative comments on Judge Green, they stand and are appropriate in this case, just as my equally harsh comments in prior prior appeals against Judge Grimes were appropriate, and resulted in her removal. What Mr. Frank fails to mention is that among his many, many other faults, Judge Green was orderd to vacate the void orders and start this case over again. He refused to do this. That disobedience of a higher court’s ruling merits the harshest possible language. The entire system collapses if judges like Green believe that they can ignore directions from a higher court. This is one of the many acts of judicial misconduct for which the Judicial Conference found that the Ninth Circuit does not take seriously.

As to my specific complaint quoted about Judge Green–his inability to issue accurate written orders in a timely fashion–that is viewed as a serious problem in California. A judge in Riverside was removed last year for failing to issue timely orders in a variety of cases. The failure to issue and docket accurate written orders is a “disaster”, since in California, court’s act by written orders. Judge Green is a “disaster” in that aspect, and I will say unique in my experience.

I also have been contacted by a person who has put up comments in my favor, and apparently Mr. Frank is deleting them. That does not surprise me.

I recognize that this blog is devoted to exposing what its masters contend are wasteful lawsuits against corporations. Both Judges Green and Grimes were corporate tort defense lawyers in their prior lives, so that’s where their sympathies lie. When I win this lawsuit, there will no doubt be a blog about how crazy the Court of Appeal is, and decrying the litigtion madness.

Whatever.

The bottom line is that this country uses the tort system as a method of corporate regulation, as opposed to the much more heavy-handed regulation employed in Japan or Europe. The advantage is that companies don’t have to ask for as many governmental permissions; the disadvantage is that companies get sued under a flexible common law and thicket of consumer protection statutes, often for fairly minor amounts spread over many, many consumers.

If you want to reform the tort system, then you need to come up with a replacement, which is inevitably the European style regulatory system.

Finally, I did not file all of the prior appeals in the case. The other side filed their share, and lost them all. Moreover, the writ petitions I did file were an unfortunate waste of time necessary under California law to preserve certain due process and other claims (under California law, failure to prosecute certain kind of errors by a writ can result in their forfeiture). I filed those knowing that this particular panel would deny them, but I was required to do it under Caifornia Supreme Court precedent to keep the option open for appeal. But it is not a surprise that a person who claims appellate expertise but pontificates like a buffoon on issues he is not informed about would raise that issue on this blog.

Cyrus Sanai

11 Cyrus Sanai 06.18.08 at 4:14 pm

One more thing. The attitude of the Court of Appeal to me, versus the lawyers from the other side who are feeding Ted Frank the information, can be pretty clearly divined from the following portions of Sanai v. Saltz, B170618 Feb. 16, 2005 slip. op. at 22-25:

“UDR and the Irvine Entities respond to Mr. Sanai’s argument with the somewhat disingenuous assertion that their motion for relief included a general request for
discretionary relief, as well as mandatory relief for attorney fault, because it referred to “Defendants’ counsel’s mistake, inadvertence, surprise or excusable neglect,” the grounds for permissive relief under section 473, subdivision (b).27 Yet the motion itself, the attorney declaration and the accompanying points and authorities are all phrased entirely in terms of UDR and the Irvine Entities’ purported entitlement to mandatory relief based on an attorney’s affidavit of fault.

The salutary purpose served by this notice requirement is confirmed in this case:
Because UDR and the Irvine Entities’ motion for relief was directed only to the mandatory provision in section 473, subdivision (b), Mr. Sanai had no opportunity to argue to the trial court that UDR and the Irvine Entities had failed to satisfy their burden of demonstrating that Mr. Russell’s neglect was, in fact, “excusable.” (See Luri v. Greenwald, supra, 107 Cal.App.4th at p. 1128 [party seeking relief bears the burden of demonstrating that the neglect was excusable].) [fn29] That argument would have been successful.

fn 29. We are confident that Mr. Sanai, who has never failed to advance any available argument, would have urged that the showing of “excusable neglect” was deficient had been on notice that this ground for relief was being considered by the trial court.

….

“[T]he discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’…. Mr. Russell’s mistake in this case, as his declaration makes plain, is that he assumed he had 60 days to file UDR and the Irvine Entities’ memorandum of costs from the date of the notice of entry of final judgment, an error caused by his failure to review the rules of court to determine the easily ascertainable matter of the deadline for filing the document (see Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238). That is not the mere “inadvertent entry of a wrong date,” which might warrant discretionary relief (Haviland v. Southern California Edison Co. (1916) 172 Cal. 601, 605), but rather conduct falling below the professional standard of care.[fn30]. Counsel’s failure to file a timely costs memorandum, therefore, was not the result of excusable neglect; discretionary relief under section 473, subdivision (b), even if a request for such relief had been properly noticed, would be improper. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.)

Fn 30 “The client’s redress for inexcusable neglect by counsel is, of course, an action for
malpractice. [Citations.]” (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 898.)”

Check out the opinion yourselves. The phrases “disingenuous” and “conduct falling below the professional standard of care” were aimed at the firm of Jacobson, Russell, Saltz & Fingerman in this litigation; the accusation of dishonesty has aimed at Michael Saltz in a case not involving me before a different panel of this Court.

What was said about me? That “We are confident that Mr. Sanai, who has never failed to advance any available argument…”. That means I never overlook or waive an issue; it also means I have to file writs to preserve arguments, and make complex statutory arguments based on California statutes and rules that many lawyers are not capable of making or understanding, particularly if they practice in a jurisdiction like Washington State.

If you are looking for conduct to report to the bar, you might wonder why the Jacobson, Russell firm is still practicing given that its partners, according to the Court of Appeal, engage in “conduct falling below the professional standard of care.”

Of course, to Mr. Frank, what the Court of Appeal writes in this case is obviously of no importance. To those who practice law at a high standard, it is worth a look, though.

Cyrus Sanai

12 Stephen Gianelli 06.18.08 at 4:22 pm

Under Rule 8.147 (b), A party wanting to incorporate by reference parts of a record in a prior appeal in the same case must specify those parts in its designation of the record, with page numbers if available (and) must serve and file a notice specifying those parts and must deposit the estimated copying cost within 10 days after the clerk mails notice of that cost.

One may not simply refer to the record in the prior appeal.

Was this procedure followed?

Second, why was the party–and not the attorney for the party–served with the cost memorandum? Is that why the trial court struck the memorandum?

Again, I cannot wait to read the opinion from the CA2/7 in the pending matters.

13 Cyrus Sanai 06.18.08 at 5:23 pm

All appropriate procedures were followed with a minor exception in the first brief. The other side raised the issue of the procedures trying to strike my brief; I added the incorrectly incorporated 8 pages by augmentation, and the motion to strike was denied.

Also take a look at subsection (a).

As to service of the memorandum of costs after judgment, again you need to understand California law. Under the Enforcement of Judgment Law, unless an attorney files a notice requiring all enforcement proceedings to be served on the attorney–never done here–you have to serve on the address last used by the party itself in the litigation, if known.

While California’s appellate law clerks are just fabulous–I can’t say enough good things about Division 7’s–the clerks in the LA Superior Court are of varying quality (some very good, some horrible). Here the clerk got convinced in ex parte phone calls by the other side that I had done something wrong, though I still don’t know what. She asked me for the agents for service of process, I wrote em down on a copy of the service list, which she then attached to the proof of service.

I was horrified for two reasons. First, if I had served the memorandum on the agents for service of process, that would be wrong. Often, the agents for service of process are attorneys or CSC, and are not at the address of the party, which is what the ELJ explicitly requires. Second, I would not have modified, in the open, a proof of service that I had not signed. That would be grossly improper. The proof of service I submitted was the correct proof of service, and I am pretty annoyed at myself that I fell for this. Indeed, I had previously filed the correct proof of service, including the Express Mail receipts, with the trial court.

I had fallen into traps set by this firm before, and I regret to say it happened again. However–and you have to be a lawyer to understand this–once you have a judgment issued, the only way to change the result is via a motion to amend or vacate the judgment. The other side filed a motion to strike “pleadings” because it was the only thing within the time limit after I had the ex parte action of the court vacated because of a false declaration of notice by Michael Saltz.

Anyway, that’s the story.

By the way, I think California trial court judges meet the bell curve. There are terrific, terrific judges, there are average, and there are horrible ones. Judge Grimes runs an efficient courtroom I will give her that, but for a smart woman she is a dumb judge. She has been reversed on very elementary points of law in a number of published and unpublished decisions that to me show she is an embarrassment.

Judge Green is a charming guy, and I am sure was absolutely outstanding in front of a jury, but any time it takes 3 months to get a written order issued from a judge, there is a problem. One motion I lost before him still does not have an order in the docket after nearly a year. That’s a “disaster”.

As to my other harsh language, when the Court of Appeal orders a judge to vacate certain orders, the trial court judge must do that without question. Judge Green never did it, and used the past void actions of the court as the basis for denying me leave to amend. That is just wrong.

In my professonional life, when I am not pro per, I get at least decent trial court judges in California. I’ve had a bad pair in Sanai v. Saltz, but that’s the draw. I believe that California’s judicial misconduct and discipline system is the most effective in the US; the structural problems in the Ninth and Washington State simply do not exist, and part of the reason I judge them so harshly on this issue is that California’s state system shows how good things can be.

The issue with Washington State and the Ninth is not a matter of the draw, or bias. The issue there is structural–if my arguments prevail, a verated practice will disappear, and Washington’s judges will have much less to offer their contributors, business partner and fellow judge/attorneys when favor trading occurs.

There are some parts of this country where the judiciary is riven by deep-rooted corruption. Just read about Cook County before the federal prosecutions. Current jurisdictions with similar issues include Brooklyn, NY; Louisiana; and Mississippi. With Washington State, it is structural, primarily because of the influence of the dual attorneys/judges who run the system in Everett and the like.

That’s where I have to say the haters are making a tactical error. Sanai v. Saltz gets decided by the Court of Appeal independent of what Ted Frank thinks; of course, he’ll just say the Court of Appeal is “confused” like he stated the California Supreme Court was “confused” on void vs. voidable. Nonetheless, on prevailing his credibility will take another hit.

Second, on Kozinski–which is the issue, remember?–the more I get my story out, the harder it is for the courts to ashcan it. That’s why I take the hits and appear in forums like that.

Anyone who practices ad hominem attacks should look what it got Judge Kozinski. He wrote a WSJ piece in 2001 attacking Mecham, and now Kozinski is going to face that charge in a context of heightened scrutiny. He wrote a piece attacking me, which he grudgingly conceded was wrongful, but covered up the role of his website. Look how smart that was.

Cyrus Sanai

14 Cyrus Sanai 06.18.08 at 5:37 pm
15 Stephen Gianelli 06.18.08 at 6:42 pm

Mr. Sanai:

In the above linked comment you state:

“I became interested in Judge Kozinski’s website, “alex.kozinski.com”, after he sought to influence a case before the Ninth Circuit Court of Appeals by publishing an article about the case in a legal newspaper, and more importantly, placing case related materials on his website, alex.kozinski.com.”

I read that you published an Op-Ed piece in the Recorder about the very same case, and that Judge Kozinski published a REBUTTAL, linking publicly available pleadings to his rebuttal in order to make his point.

Unless the case was pending in front of Kozinski, why should you be allowed to express your opinions about the same case (without, according to Kozinski) full disclosure by the Recorder about your role in the case, with out allowing the Kozinski the opportunity to reply?

And if Kozinski’s rebuttal to your Op-Ed piece criticizing the publication practices of the 9th circuit was proper (and why would it not be, the case was not before him, and he was not the chief judge at that time), what difference does it make where the linked pleadings were stored?

Respectfully, have a habit of leaving out key facts, like YOU published the opinion piece attacking Kozinski’s court, and he was simply RESPONDING, and that Judge Kozinski would not be appointed to the chief judge position until much later.

Your comment makes it sound like Kozinski gratuitously spoke publicly while he was chief judge to influence a pending case, when in fact you published an OP-Ed piece that did not fully disclose your involvement in the case, and Kozinski only issued a REBUTTAL to your specific accusations made in a legal news paper.

Please don’t assume when you write these things that we—who only heard of you and your beef with the judge last week—know as much about the background of this dustup as you do. One might get the incorrect impression that you are trying to mislead.

16 matt 06.18.08 at 7:50 pm

im starting to agree with ken . . . .cyrus sanai (if that is your real name) i hearby demand you prove you are not jack thompson

17 Stephen Gianelli 06.18.08 at 7:56 pm

Mr. Sanai:

Here is what you wrote on September 16, 2005 (three years before Judge Kozinski became chief judge of the 9th), in a recorder piece you called “Taking the Kozinski Challenge” and in which peice you mentioned Judge Kozinski by name:

http://pda-appellateblog.blogspot.com/2005_09_01_pda-appellateblog_archive.html#112684339987535279

Here is the link to Judge Kozinski’s REBUTTAL to your peice:

http://pda-appellateblog.blogspot.com/2005_09_01_pda-appellateblog_archive.html#112684339987535279

Since you have admitted that your publicity campaign (including your contacts with the LA Times, the resulting article for which you take credit, and all of your many blog posts, is a part of a stratigy to influence the 9th circuit to see things your way in your pending family litigation, it seems to me the below quited comments by Kozinski from his 2005 REBUTTAL to your Op-Ed piece were quite accurate and bear repeating:

“Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

By failing to disclose his long-standing, active and abiding interest in the legal issue he discusses in his article, Mr. Sanai has done the reading public a disservice, cloaking his analysis with a varnish of objectivity. Worse, by publishing the article while he had a case raising this precise issue, Mr. Sanai used The Recorder to call unfair attention to his petition for rehearing, to the detriment of opposing parties who limited their advocacy to the briefs. And, by gratuitously drawing my name repeatedly into the controversy, he has also managed to disqualify me from participation in his case, skewing the en banc voting process.”

18 Stephen Gianelli 06.18.08 at 8:28 pm

Mr. Sanai:

Not wanting to improperly accuse you leaving out important facts regarding your posts re your dustup with Judge Kozinski, I looked up your Recorder opinion piece published September 16, 2008—three years before Judge Kozinski ascended to the chief judge position at the 9th circuit—entitled “Taking the Kozinski Challenge” and in which you not only mention the judge by name and criticize his views, but advocate the very issue before the court then pending in banc petition without disclosing that fact to the Recorder or its readers.

Judge Kozinski posted his REBUTTAL in the Recorder on September 23, 2005, noting that your piece DISQUALIFIED HIM from any participation in the pending petition, and questioning your timing.

Since you have written in the last few days that your publicity binge regarding Judge Kozinski (including your contacts with the LA Times and the resulting article) are all part of a “litigation strategy” to influence the 9th circuit in respect to your parent’s state court litigation, I find Judge Kozinski’s words of rebuttal on September 23, 2005 to be on the mark:

“Mr. Sanai’s byline modestly lists him as “an attorney with Buchalter Nemer in Los Angeles.” The firm’s Web site identifies him as “a Senior Counsel and English solicitor … [whose] practice focuses on project finance, corporate finance and business transactions, with a particular expertise in international finance transactions.” The careful reader would therefore have no cause to doubt that Mr. Sanai is a disinterested observer of this court’s Rooker-Feldman jurisprudence. Nothing alerts the reader to the fact that Mr. Sanai has been trying for years to get the federal courts to intervene in his family’s state-court dispute, an effort referred to by a highly respected district judge as “an indescribable abuse of the legal process, … the most abusive and obstructive litigation tactics this court has ever encountered. …” Nor would the reader — unless he happened to enter Mr. Sanai’s name in the Westlaw CTA9-ALL database — realize that, as part of the same imbroglio, he and certain members of his family have hounded a state trial judge off their case (read the PDF); been held in contempt and sanctioned under 28 U.S.C. §1927 and had their ninth sortie to our court in the same case designated as “frivolous” and “an improper dilatory tactic” by the district court. A detached observer, Mr. Sanai is not.

”By failing to disclose his long-standing, active and abiding interest in the legal issue he discusses in his article, Mr. Sanai has done the reading public a disservice, cloaking his analysis with a varnish of objectivity. Worse, by publishing the article while he had a case raising this precise issue, Mr. Sanai used The Recorder to call unfair attention to his petition for rehearing, to the detriment of opposing parties who limited their advocacy to the briefs. And, by gratuitously drawing my name repeatedly into the controversy, he has also managed to disqualify me from participation in his case, skewing the en banc voting process.”

The Judge had a point then, and the same point is even more relevant now.

I had no idea until now that you had tried to get the 9th circuit to intervene nine times in the state court litigation involving your parents’ long over divorce action, or that you had a petition pending regrding that matter when you wrote the Recorder article to which Judge Kozinski responded a week later.

19 twotrunk 06.18.08 at 9:46 pm

Gianelli – are you aware that ethical rules prohibit a judge from commenting on pending litigation?

Do you think that Judge Kozinski’s “rebuttal” violates that rule?

20 Stephen Gianelli 06.19.08 at 1:05 am

“Gianelli – are you aware that ethical rules prohibit a judge from commenting on pending litigation?”

Yes.

“Do you think that Judge Kozinski’s “rebuttal” violates that rule?”

Absolutely not.

Kozinski did not comment on litigation that he was presiding over or was likely to preside over. He indicated in the “comment” that he was disqualified from doing so. And Kozinski confined his comments to your credibility, and refrained from comment on the merits of the sole matter pending before the 9th circuit. Moreover, you specifically challenged him to respond, and I think less of you, frankly for the way you virtually invited Kozinski (cajoled into might be more accurate)and now post statements that completely omit to point out that your challenge predated his rebuttal.

I am also very troubled by the fact that you filed a vindictive and dubious ethics complaint against Judge Kozinski for issuing a comment that you invited by attacking by name in a prominent legal newspaper in the 9th circuit.

If you think all of this publicity you are garnering is enhancing your propensity to win any future favorable rulings in California, Washington, Los Angeles, or any trial or appellate court within the 9th circuit umbrella, or in front of any judge who hears about your dramatic litigation history and remembers your name you are very much not tracking with reality.

21 Cyrus Sanai 06.19.08 at 3:33 am

Well, Mr. Gianelli, Judge Kozinski would not agree with you. He conceded that the article was improper and promised not to do it again. Problem was, he did it again, and appeared to deny the existence of the website’s role as well.

Canon 3(A) of the Judicial Ethics rules prohibits commenting on ANY pending or threatened litigation not before the judge, in that court or any other court (it is one of the things that preents them from moonlighting as lawyers). I wish you would read the relevant rules before commenting. The only litigation a judge can comment on (with certain exceptions not relevant here) is the case before him or her, and then only in the proper context, after meaningful opportunities by all sides to present their arguments. Judge Kozinski violated that rule in about as brazen a manner as could be

My article in 2005 was on an issue then before the Judicial Conference: the citation of unpublished opinions. The biggest opponent of that was Kozinski, so you had to use him as the proponent of the opposing view.

Judge Kozinski was perfectly entitled to debate the abstract issue, and if he had possessed the sense to cut his article in half, ommitting the latter section on my case, he would have committed no misconduct.

As for the likely effect of this on my case out of Seatle. It can only help. On future cases? I’ve had very good luck with judges whin I represent clients, and not so good luck when I am pro per in California. While Kozinski has his fans, a very large number of judges think he is an odious buffoon, and will in no way look badly upon me for taking him down a peg or too. So I think the effect will be a wash.

In the Ninth Circuit and in Washington State, obviously I will have a big problem. I will have cut off a financial resource to many district court judges and perhaps Washington State judges. That can only make them very, very angry at me. I’m not a Washington State lawyer, so after this family stuff I’m not thinking of qualifying there. As for the federal courts, well my primary area of practice is transactional, where I don’t talk to judges at all. I also have my English qualification, in case I feel like returning to the UK!

As for Sanai v. Saltz, well, I have a judge who ignored a direct instruction of the Court of Appeal to vacate void orders. That tends to annoy an appellate court far more than my extracurricular exposure of a different jurisdiction’s jurist.

Cyrus Sanai

22 Ted Frank 06.19.08 at 7:43 am

Judge Kozinski would not agree with you. He conceded that the article was improper

It wasn’t, and he didn’t.

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