Patterico's Pontifications

8/16/2006

Stephen Yagman’s ‘Emotional Distress’ Lawsuit Against Retired Cop Tossed Out Of Court [The Exclusive Inside Story!]

Filed under: General — Justin Levine @ 7:27 am



[Posted by Justin Levine

Greetings Patterico readers! It is indeed an honor to be guest blogging here. You can click on my name above to learn a bit more about me, or you can read more of my rants over at the Socallawblog (another great site where I am privileged to be able to guest blog).
 

Thanks to Patterico for letting me guest blog about a case that he turned me on to after posting about it.

A recap of the particulars:

Notorious “civil rights” attorney Stephen Yagman was indicted for tax evasion.

Patterico and I are generally of the same mind about this guy.

There are many who would describe Yagman as a cop hater – pure and simple. Retired LAPD officer Jerry Le Frois apparently thought so as well. He wrote a letter to Mr. Yagman expressing his “unlimited glee and profound satisfaction” over his indictment. Yagman’s response? He sued Le Frois in federal court for “intentional infliction of emotional distress”.

Yagman’s complaint is here [with a full copy of Le Frois’ letter attached at the end – Adobe PDF reader required].

Jerry Le Frois and I ended up speaking, andMore... there was an informal agreement that your humble blogger would help out on his case in between my precious hours spent blogging, producing the highest rated morning radio show in Southern California, practicing my second deal, and blowing the heads off of zombies on my Playstation 2.

Mr. Le Frois seemed comfortable with the fact that I’m not a button-down big law firm type (probably due in part to my recent defamation defense work in Wald v. Ford, plus the very kind compliments from Patterico himself on my behalf). So I signed on, and we were off to the races.

I was actually licking my chops over this one – thinking that this case would allow me to tee up another Open Source Legal Motion, express an appreciation for our boys in blue, and continue my quest to promote free speech in these here United States all at the same time.

Mr. Le Frois was planning on visiting L.A. later in the month. So the plan was to write up an informal draft of an anti-SLAPP motion, get his thoughts on the draft, and then confirm a more formal agreement to sign on to the case. Then I’d file the motion, (presumably) win, and then take a picture of Yagman’s face when he hands me over a check from his (allegedly) tax evaded funds in order to pay my legal fees [Cha-ching!]   

Unfortunately, the federal court beat me to the punch. It tossed Yagman’s case for lack of federal jurisdiction. The full ruling can be found here.

The dismissal was admittedly “without prejudice”, which means that Yagman can theoretically re-file the case at a later time in state court (or amend his complaint to show how he somehow managed to sustain more than $75,000 worth of injuries over the letter that he received). Jerry Le Frois is of the opinion that Yagman is never inclined to file cases in state court. And unless he can show copies of his shrink bills that are over 75-grand, he ain’t getting back into federal court. So that could very well be it.

Too bad the court couldn’t have waited another two weeks to issue its decision. There is case law directly on point that if a lawsuit is dismissed after an anti-SLAPP motion has been filed, the defendant is still entitled to a hearing on that motion and collect attorney’s fees if successful. The courts have also ruled that you are entitled to reasonable attorney’s fees even if you are handling the case pro bono (which I was – though it was still an informal agreement and Mr. Le Frois generously kept insisting on paying something down the line).

Incidentally, Jerry Le Frois expressed complete surprise at Yagman’s charge of anti-Semitism. Mr. Le Frois has responded as follows:

As to Yagman’s claim of anti-Semitism, that one really caught me off guard. When I read in the dismissal order that Yagman, in responding to an order to show cause,  was experiencing a “especially fragile emotional state” when he received my letter…and…because Yagman has “painful memories” associated with anti-Semitism and is very vulnerable to anti-Semitism….WHAT A CROCK! 

In the letter I sent to him,  I suggested he get a “nose job!”  Look at his picture. The guy has a big nose. My daughter had a large nose.  She had it fixed.  My son had large nose. One of those Dick Tracy types.  It was fixed.  I guess you could say I have a large nose. SO WHAT!  I am of French lineage.  The French are known for large noses.

  And lastly.  This one really surprised me. “The court is sympathetic to Plaintiff’s distress at receiving a letter that expresses  “glee” upon hearing that Plaintiff is the subject of an indictment.” What the hell is that about!

Yagman can express “GLEE” over an FBI agent dying because he chocked on a chicken bone and the only ones sympathetic are the poor agents family? PLEASE, give me a break! 

I’ll close now.  I’m getting tired. Must be my “fragile emotional” state of mind. One last word…..put “Yagman” in the Google search box and click “search web.” It makes for interesting reading!

[end]

Straight from the horse’s mouth folks. You can read everything and draw your own conclusions. It should be stated though that Yagman  has a history of accusing people of anti-Semitism (including a federal judge whose rulings he disliked). Also, for what its worth, your humble blogger happens to be Jewish and I never got the sense that Mr. Le Frois intended for his statements to have any racist overtones. So there!  

From my perspective, it is simply beyond the realm of possibility that a man with Stephen Yagman’s history and background could possibly be “emotionally harmed” by the kind of letter that Le Frois sent. Yagman has said some equally incendiary things about judges and law enforcement personnel in this city. This is free speech karma that everyone learns to put up with at some point in their lives – but Yagman somehow decided to literally make a federal case out of it. If Jerry Le Frois sent the same letter but didn’t happen to be a retired cop, would Yagman still have sued? I doubt it.

Before concluding, I’ll just quickly outline what would have been in my anti-SLAPP motion had I had the time to file it (or what will be in the motion if Yagman decides to re-file in another court). I’d welcome your comments and/or improvements on this since I know that there are people much smarter than me out there.

1. California Code of Civil Procedure (CCCP) 425.16 allows for a special motion to strike Plaintiff Yagman’s complaint.

2.  CCCP 425.16 is valid for use in federal court under diversity jurisdiction. United States v. Lockheed Missiles 190 F.3d 963 (9th Cir. 1999).

3. The statute applies in this case because the complaint is based on a “writing” on a “public issue” as defined in section (e) of the statute. (Would anyone seriously argue that Steven Yagman being indicted on tax evasion charges is somehow not a public issue?) Furthermore, courts have interpreted section (e)(4) of the statute to hold that CCCP 425.16  governs even purely private communications, so long as they concern a public issue. See Averill v. Superior Court, 42 Cal.App.4th 1170 (1996); Wilbanks et al. v. Wolk, 121 Cal.App.4th 883, 897 (2004).

4. Plaintiff Yagman is unlikely to prevail in his claim against Defendant Le Frois because (a) This court does not have jurisdiction to hear his claim; and (b) Defendant’s actions are protected under the First Amendment and do not rise to the kind of outrageous behavior required to sustain a claim for “intentional infliction of emotional distress”.

4(a). Plaintiff cannot show that he has been damaged in an amount over $75,000. Therefore, this (federal) court cannot maintain diversity jurisdiction in this matter (therefore Yagman loses for purposes of CCCP 425.16).

[Note: There is also an argument to be made that both Yagman and Le Frois may both really be California residents despite their claims in the court papers. This would also destroy diversity jurisdiction in the federal court. However, I would have needed some more facts and discovery to really pursue that argument.]

4(b). Even if the federal court could somehow maintain jurisdiction, Yagman’s claims still fail on the merits. In order to sustain a claim for intentional infliction of emotional distress, Yagman must show “outrageous conduct” that “exceedes the bounds of what is generally tolerated in a civilized society”. See Trerice v. Blue Cross of California, 209 Cal. App. 3d 878, 883 (1989).

This concept is, to some extent, a term of art. However, courts have made crystal clear that liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” but only to conduct so extreme and outrageous “as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Rest. 2d Torts, § 46, com. d; see Prosser, Law of Torts, at pp. 46-47.)  

Conduct which exhibits mere rudeness and insensitivity does not rise to the level required for a showing of intentional infliction of emotional distress. See Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir. 1991).

Clearly, Le Frois letter was nothing more than an “insult”, “indignity” and petty “annoyance” directed towards a public figure who has a long history of hurling his own insults towards others in the legal community. Le Frois contact consisted of a single letter – thus there was no behavior that could be construed as “harassment”.

When Plaintiff Yagman accused a sitting federal judge of being “drunk on the bench” and anti-Semitic, the federal judiciary proclaimed the utterance to be protected under the First Amendment and prevented him from being punished. See Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1442, 1443 (9th Cir. 1995). Defendant Le Frois asks that this court extend him the same courtesy.

5. Therefore, Plaintiff Yagman cannot prevail on his claim.

6. Therefore, Plaintiff Yagman now owes me a boat-load of money.

Ok, I’m done.

 

 

  

   

    

      

   

 

20 Responses to “Stephen Yagman’s ‘Emotional Distress’ Lawsuit Against Retired Cop Tossed Out Of Court [The Exclusive Inside Story!]”

  1. Frivolous, thy name is Yagman.

    Bill M (d9e4b2)

  2. I think Yagman would find this posting to be emotionally distressing. I predict Patterico and you will be the next set of Yagman defendants in a new lawsuit.

    You may get your chance to file the anti-SLAPP motion.

    SoCal Lawyer (20f3ba)

  3. frank expressions of schadenfreude are protected speech, it’s surprising a lawyer of yagman’s experience couldn’t immediately predict the outcome of this suit and the subsequent public embarrassment, suggesting that he might have a mental health problem.

    assistant devil's advocate (69484c)

  4. suggesting that he might have a mental health problem.

    Or maybe he’s just not the sharpest tool in the shed and is too wrapped up in his own crooked crap to have any sound judgment left.

    Anwyn (03d912)

  5. Your paper on hoaxes looks interesting. Today we hear the ‘sensationalistic’ approach to everything, which kinda blurs the line.

    Comedy-based hoaxes are great, such as what Phil Hendrie does, as opposed to the stuff that Opie & Anthony do (or at least ‘did’ a few years ago, with the announcement that Boston’s mayor had died in a plane crash).

    Vermont Neighbor (a9ae2c)

  6. Energy and chutzpah, Anwyn, will often get a lawyer just as far as talent and education. Those seem to be Mr. Yagman’s qualifications as far as I can tell. Who knows? If the defendant had been afraid of litigation, scared of even the remotest possibility of a judgment which would take away his retirement nest egg, not wishing to pay large legal fees to his attorneys over drawn-out litigation … Mr. Yagman might have been able to squeeze a few bucks in settlement. It’s shameful, but a lot of plaintiffs’ lawyers think exactly that way.

    nk (4cd0c2)

  7. Yagman, is that Yiddish for A****le?

    I have a friend that is ex-LAPD, and a cousin that is a firearms instructor with the LAPD.

    I have wondered why Yagman hasn’t been branded a vexious litigant.

    Justin, pass a hearty greeting to Michelle and Paul the Wall, as well to Handel from the former, “Dan from Anaheim”. Bill will remember me from the promo he asked me to do for the Bill Press show that arose out of a joke about Bill I told on Gripe Night.

    PCD (8d7a86)

  8. Speaking of A*****e, does anyone know if this true, which supposedly happened in Los Angeles in the late 80’s:

    A business negotiation meeting became heated and one lawyer called the other side’s lawyer the “A-Word”. The “victim” filed suit.

    Representing himself at trial, the plaintiff was only a couple minutes into his opening statement when the judge cut him off and dismissed the case saying the defendant was right.

    I hope this story is true, and I’d vote for that judge if possible. I think judges should deal severely with those who file such lawsuits.

    Mike (8135c5)

  9. nk, I have no trouble believing that. I was responding more to ada’s suggestion of mental incompetence. He goes from this …

    stephen yagman has done some good work. i don’t know if this is just a political prosecution or not, but i anticipate he will be difficult to convict, good luck mr. yagman.

    … to this …

    i can’t see how mr. yagman can possibly win this case.

    … and now says that because Yagman should have known he couldn’t win, he must be mentally deficient. So much for his “good work,” eh?

    I can’t tell whether ada thinks he is mentally lacking because he sued over “protected speech” or because he presumably thought he might win. Oh well, I guess “mental health problem” is less embarrassing to say than “somebody whose work I admire has filed (and had dismissed) a crappy lawsuit for a less than honest reason against the very free speech he purports to protect.”

    Anwyn (03d912)

  10. To clarify: the above ada comments were about two different cases: the first is from the thread about his criminal indictment; the second is from the thread about the filing of the suit that has now been dismissed. I did not intend to make it appear as though ada had changed position on the same case.

    Anwyn (03d912)

  11. @anwyn:
    thank you for that clarification.
    yagman did some good work on behalf of police brutality plaintiffs. i don’t know the precise details of the cases and i wasn’t a witness, and certainly not all police brutality cases are valid, but i have a healthy anti-statist view and i encourage more lawyers to work in this area.
    i don’t know anything about the merits of the tax evasion case against him. political prosecutions are not unheard of. if it turns out he cheated on his taxes, i hope he gets hammered. i pay my taxes, i prevailed against the irs in a dispute just this year, let these chips fall where they may.
    his suit against the cop who wrote the letter was frivolous. not only that, his exhibition of weakness and emotional “fragility” will bring out all the piranhas. i don’t think he can be a strong player anymore no matter what happens in the tax case.

    assistant devil's advocate (438125)

  12. yagman did some good work on behalf of police brutality plaintiffs.

    No, yagman has done some good work on behalf of yagman. As long as his clients receive some damages, no matter how small, he gets paid.

    sam (da5f26)

  13. Know Yags sued in Fed Ct., but don’t see Fed question here. Wondering if that was to avoid Cal’s SLAPP-suit defense. If successful on SLAPP motion, Le Frois could be able to recover his costs of defense from the Yagman.

    CalDevil (da73d4)

  14. CalDevil:

    Check out Point # 2 in my anti-SLAPP outline located in the post (and feel free to click on the link to the case cited there and read it for more details).

    Courts have made it clear that California’s anti-SLAPP statute is available in federal courts located in California. So there is no way that Yagman could have avoided it.

    Justin Levine (d8da01)

  15. Time for Mr Yagman and his lawyer to be marooned in space way far out there where they can never ever return or more over i hope he learns a lesson but as the old song gose A FOO NEVER LEARNS

    krazy kagu (272de2)

  16. What’s wrong with being a cop hater? The current generation of twentysomething cops act like prison guards whose authority can never, ever, be challenged.

    “Jack Dunphy”, the pseudonomious cop who writes for NRO says that 20% of cops do 80% of real police work and most of the rest just stand around.

    He’s not telling the complete truth. 30% of cops would work for any police force, Saddam’s, Adolph’s, Nasrallah’s, just so they can carry a badge and a gun and tell people what to do.

    Paterico, I respect most of what you write, but as a DA, you have no idea how disrepectful most cops are to citizens. They think “I’m a police officer in the perfomance of my duty” is a legitimate excuse for them breaking the law, any law, from rolling stop signs to “throw downs”.

    I’ve been cursed and threatened with arrest “for interfering with a police stop” simply for telling the officer that the way he was parked was causing a traffic hazard (parked in a traffic lane on a side street immediately off a major highway – make a right turn into the street and there’s a cruiser blocking the street).

    And a citizen is never, ever, supposed to remind policemen that they are public employees who work for us.

    Bozoer Rebbe (f5f42d)

  17. […] This is either disingenuous bilge, or lack of familiarity with the facts. I have already explained, and Justin has confirmed, that Justin received his advance screening, not because the publicists knew he would be writing guest posts on an “obscure” blog with a “tiny” audience — but because he produces the highest-rated morning talk radio show in Los Angeles. […]

    Patterico’s Pontifications » Greenwald Propagates the Myth that “Path to 9/11″ Publicists Gave Advance Screenings to Obscure Right-Wing Blogs Like This One (421107)

  18. Yagman sued me once. He didnt get a dime. My crime? I was flying the helicopter over a riot after a rock concert. What a moron.

    Retired Police Sgt (de5a83)

  19. Mr. Patterico, I’m a reporter for the LA Weekly. I wanted to ask you a few questions about Steve Yagman. Jill Stewart sent me to you. Shoot me a line, or I can call you. I’m under an intense deadline, so please get back to me ASAP. Thanks! Patrick McDonald

    Patrick McDonald (de5a83)

  20. […] Yagman subsequently filed suit in federal court claiming that the letter had caused him ‘extreme emotional distress.’ You can read the entire summons here as a pdf (hat tip: Patterico’s Pontifications) […]

    Whatcha Gonna Do When They Come For You? (2d3223)


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