Kozinski grudge-match litigant, cont’d

by Walter Olson on January 28, 2009

Readers may remember Cyrus Sanai as the litigant with the big grudge against Ninth Circuit Chief Judge Alex Kozinski who proceeded to launch a campaign trying to destroy Kozinski’s career (with some help from the Los Angeles Times). Now a California appeals court has issued the latest ruling in Sanai’s decade-long dispute with the owner of a Newport Beach apartment he once rented. Shaun Martin at California Appellate Report has details on the ruling, which sends the fight back to the lower courts. Martin calls it “a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them.”

P.S. Sanai, in our comments section, says we’re wrong: for one thing, we described him as having sued the owner of the apartment he once rented when in fact “the complaint at issue is against UDR’s successor in interest, First Advantage Corporation, and UDR’s owner, Harvey Saltz”.

{ 1 comment }

1 Cyrus Sanai 02.04.09 at 2:58 am

It would be nice if you guys would carefully read the opinion to get the facts right. Indeed, getting the facts right to the maximum extent is the underlying issue in the Sanai v. Saltz case.

First, my complaint is not against my landlord, it is against The U.D. Registry, Inc. and its successor, First Advantage Corporation. The issues whether the procedures UDR used and the information it gave to bona fide consumer credit reporting agencies were “complete” “accurate” to the maximum degree possible, and “not misleading”. The reality is they were not; that’s why I will win the case. UDR has been repeatedly found to violate California’s Consumer Credit Reporting Agencies Act in other lawsuits, and the result will be the same here.

The problem with this lawsuit is that I have gotten a succession of judges who can’t stand the law at issue, and won’t enforce it. The two previous judges were removed for bias and misconduct; for whatever reason, the Court of Appeal did not address that issue here, but it makes little difference, because the case, along with a First Appellate District decided a month previous, are headed to the California Supreme Court.

Judge Greene is pretty much a stellar example of a judge who seeing a plaintiff with a meritorious case which offends his right-wing sensibilities, puts the kibosh on it on illegal grounds. He put in a complete discovery stay, then demanded that I provide admissible evidence satisfactory to him that Experien had made a reinvestigation request to UDR in order to allow me to amend my complaint. Obviously, I could not meet that requirement, because I have never been allowed discovery of any kind over 9 years. Thus the federal claim was reversed.

The second issue was whether the federal consumer credit law pre-empts California’s version. Even though the federal law explicitly exempts California’s statue, some courts have ruled that the failure to also mention the remedies meant that while California’s substantive law was exempted, there was no right to enforce it. The First Appellate District agreed with that argument. Interestingly enough, in between the First Appellate District’s decision and Sanai, the Ninth Circuit came down on my side in a decision called Gorman. Since there is now and explicit and virtually simultaneous split in authority, this case is headed to the California Supreme Court.

This case is an example of litigation run amok because the trial court judges involved, knowing full well that I have a rock-solid case, refused to let it go to trial by repeatedly and erroneously knocking out my complaint on absurd pleading grounds. Had the original judge handled this in accordance with the law, I would have won long ago. The Court of Appeal stated in 2005 that my complaint was sufficient, but Judge Greene simply would not accept that every consumer has the right to information in his consumer credit reports which are complete, accurate to the maximum extent, and not misleading under federal and state law.

Indeed, the reason this case engenders such a violent reaction is that the requirements it imposes on persons who make reports to consumer credit reporting agencies would never be met by the authors of this blog were the same requirements placed on them. The blog statement says that the case is about “Sanai’s decade-long dispute with the owner of a Newport Beach apartment he once rented.” That is false; the complaint at issue is against UDR’s successor in interest, First Advantage Corporation, and UDR’s owner, Harvey Saltz. Right there is an inaccuracy. Were the blog entry a report to a consumer credit reporting agency, I would be entitled to file a lawsuit demanding either statutory damages ($2,500) or actual damages (including emotional distress) plus attorneys fees, and I would win.

UDR and First Advantage’s business model is to place information with all the accuracy of “Overlawyered” blog entries into one’s consumer file. That’s illegal. The fact that this is illegal is incredibly offensive to some judges who prefer misleading character attacks to completeness and accuracy.

Interestingly enough, one of the recent crusaders on this issue is the esteemed Judge Kozinski, who was gratuitously referenced in the entry.

In Dennis v. BEH-1 LLC, a plaintiff filed a lawsuit against Experien and its contractor for falsely reporting that there was a judgment against him. There was in fact no judgment, but there was an erroneous entry in the Register of Actions that such judgment existed, when in fact there was a judgment dismissing the case. Experien refused to back down, so the Plaintiff sued.

Judges Bybee and O’Scannlain thought this was ok, but Kozinski dissented, pointing out that the majority was misreading a series of California cases. Neither side perceived that the question of what a judgment was had actually been definitively decided by a California Supreme Court case.

When I read this, I called the plaintiff’s lawyer to file a petition for rehearing emphasizing this case, since I was confident that Kozinski would get his two fellow conservatives to reverse themselves. The lawyer followed my suggestion, and the panel reversed itself, with Judge Kozinski writing a very nice opinion that I will quote extensively from at trial.

The hostility of conservative judges to the Fair Credit Reporting Act and its California cousin is pretty pronounced, and as a result companies in that business regularly get away with virtual extortion. I do give credit to Judge Kozinski for faithfully applying the law in this area. Judge Greene, on the other hand, is pretty much the model of a judge who decides cases not on the law, but on his personal preferences as to who should win or lose.

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