As I indicated on Friday evening, the frivolous and abusive lawsuit by Nadia Naffe against me has been dismissed. Ken from Popehat has the rundown on what happened procedurally, and has posted a collection of excellent legal documents that provide all the information necessary for anyone with an abiding interest in the case.
I thought I would highlight a few quotations from the publicly available filings in this matter that show how my lawyers demonstrated that her lawsuit lacked merit.
First, a brief recap: Naffe initially sued, not only me, but also Los Angeles County, my former boss Steve Cooley, and (incredibly) my wife. My lawyers filed a set of motions showing how utterly meritless Naffe’s claims were. In particular, they blasted Naffe for her irresponsible decision to name my wife as a defendant. In response, Naffe made no attempt whatsoever to justify having sued my wife. She simply dismissed my wife from the suit. There was never any basis whatsoever for naming my wife in this lawsuit, and I believe that Naffe’s decision to do so was simply a tactic designed to terrorize my family.
Bolstering my conclusion that this was a politically motivated attack were the admissions by Neal Rauhauser (the hatchet-man associate of Brett Kimberlin) that he had arranged counsel for Naffe. Rauhauser proudly trumpeted his silly but telling hope that the lawsuit would accomplish his (and Kimberlin’s) long-held goal of costing me my job.
Above: Neal Rauhauser and Nadia Naffe, 2012
(It did nothing to dispel my suspicions about the political nature of this lawsuit when a lawyer who was suing James O’Keefe took over the litigation — after the judge had issued a ruling that expressed extreme skepticism about whether Naffe could show damages in excess of $75,000. Usually, lawyers don’t get too excited about lawsuits that the judge has said are unlikely to be profitable.)
Basically, I had put up a publicly available court document from PACER, and soon learned that the lawyers who had uploaded it to PACER had not redacted it, as they were supposed to have done. So I took down the link to the document a little over an hour after the post was published. I redacted the document, and put it back up. And Nadia Naffe literally made a federal case out of it.
The meat of the Court’s ruling dismissing her claims is contained in the Court’s tentative ruling, which was confirmed by a short minute order on Friday. As Ken did, I want to emphasize two comments that the judge made in the tentative ruling concerning the manner in which Naffe and/or her attorneys “played fast-and-loose” with my language. Here is the first:
In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: “You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You’d better issue it promptly. [A threat made as a Deputy District Attorney].” FAC 39. The Court may consider the text of Frey’s actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff’s use of quotation marks, the language “[A threat made as a Deputy District Attorney]” does not appear in Frey’s actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]
They inserted words inside quotation marks that I had never said. The second comment by the judge:
In her Opposition brief, Plaintiff characterizes this as “Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct.” Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff’s (and/or her counsel’s) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]
One other observation I would like to emphasize from the judge’s tentative ruling concerns Naffe’s claim that she was having trouble finding employment because of what I said about her. I present the judge’s response without comment:
As for those interested in the facts of the case, the reader needs to understand that when the case was dismissed, the case was still in the stage where we were challenging the pleadings. That means that, to a large extent, the judge was forced to accept even untrue allegations as if they were true. For example, when Naffe falsely claimed that I blog and tweet on the taxpayer dime, my lawyers were forced to accept that as true for purposes of our motions, even though it is false. It is a very frustrating position for a person to be in — but such is the plight of a civil defendant.
There were, however, limited ways that we were permitted to dispute some of her allegations in certain contexts. Towards that end, I provided a declaration that is probably the best document for you to read if you are interested in the underlying history of the case. My declaration explains, among other things, how I began writing about Naffe, and how I obtained and posted the deposition transcripts.
My declaration also provides proof that contradicted several of Naffe’s assertions in her complaint and declarations. For example:
- Naffe claimed that I had not obtained the deposition transcripts from PACER, but had somehow obtained them though resources available to me as a DDA. Not so. I provided proof, in the form of records from PACER, showing I had downloaded the transcripts from PACER on the same Saturday that I posted them.
- Naffe claimed that I had issued certain posts “as a Deputy District Attorney.” Not so. I provided printouts of those actual posts in which I said in the body of the post that I was posting as a private citizen and not a DDA.
- I provide proof in the declaration that the link to the publicly available deposition transcripts containing Naffe’s Social Security Number was removed from the post about an hour and 17 minutes after it was first put up. (Indeed, if Ron Brynaert had not publicly tweeted the fact that the transcript contained her Social Security number, it could have been taken down and redacted with nobody being the wiser. But for some reason Brynaert — who has also complained about me to my workplace, and has spoken of punching me in the nose and taking a “shit” on my wife — decided to make this information public rather than emailing me privately. Draw your own conclusions as to why.)
- Naffe claimed that she had been intimidated by my March 2012 post linking to her deposition, and that she made her blog private as a result. Our 12(b)(1) reply provided proof that her blog was still public in May 2012, and that she was blogging that she had not been intimidated by my post.
Let me provide you specific quotes on that last point, because they are telling. Here is her sworn declaration from November 19, 2012:
In other words, as a result of the actions of MR. FREY, I was in fact intimidated into not giving evidence of O’Keefe’s wire tapping to the County. . . . As a direct result of MR. FREY’s harassment, and in order to prevent further harassment, I have been forced to make private both my Twitter account and my blog at nadianaffe.com. Though I desire to, MR. FREY has made it impossible to freely participate in online speech. [Emphasis added]
Naffe’s claim of harassment revolved around a post and other tweets that I published in late March 2012. That’s when she was supposedly intimidated into making her blog private and not reporting evidence of a crime. Yet we showed that her blog was still public in May 2012, when she published a post at nadianaffe.com that said:
Patrick Frey may have believed that posting my Social Security Number and medical records online to his blog, in retaliation, would intimidate and stop me from telling the truth about O’keefe [sic], chill my First Amendment right and dissuade me from coming forward to report a crime committed in his jurisdiction. Though, what he has accomplished is precisely the opposite. These two civil servants, both deputy district attorney’s [sic] in Los Angles [sic] County, in the past were able to bully and harass private individuals, with impunity. But their patent on intimidation and retribution expired when they came to me. The Frey’s [sic] are the poster children for the type of rampant corruption Carmen Trutanich, Alan Jackson and Danette Myers [sic] have each spoken out against. (Exhibit LL at 268-269.) [Emphasis added]
If you read only one document from this latest round of filings, I would read my declaration, mentioned above. If you read a second document, I would read this one: the reply brief on the anti-SLAPP motion. This is one of my favorite documents in the whole lawsuit. It describes Naffe’s suit as “a classic SLAPP – a lawsuit calculated to retaliate against expression that makes the plaintiff angry.” Page 2 lists various statements of hers that we had demonstrated to be deceptive and/or misleading. Pages 11-12 set forth the specific context for my remark that Naffe was “full of false allegations.” It also opposed her seeking discovery by making these points:
Plaintiff has boasted that she will use the discovery process in this case to harass Mr. Frey on unrelated issues including (1) how Mr. Frey and his wife afforded their house; (2) an unrelated incident in which Mr. Frey was the victim of a false police report; and (3) the identity of an unrelated anonymous blogger.
It’s impossible to list all the deceptive and/or misleading aspects of Naffe’s lawsuit in a single blog post. Hopefully, this gives you a sense of why we considered it to be a meritless attack on free speech — and why the judge dismissed the case and threatened Naffe and/or her lawyers with sanctions.
Once again, I want to reiterate my praise for my skilled and principled attorneys: Kenneth P. White (Ken from Popehat), and Ron Coleman (from Likelihood of Confusion). Without people like Ken and Ron standing up for free speech, this country would be a poorer place.