[00:00:09] Speaker 03:
I'd like to start by

[00:01:08] Speaker 03:
little bit different.

[00:01:10] Speaker 03:
The fact that Mr. Hartley was interjecting himself

[00:01:39] Speaker 03:
these cases set out in the pleadings.

[00:01:41] Speaker 03:
And Mr. Hartley did that according to the First Amendment complaint in order to apply pressure to Mr. Weiser to accept a quit pro quo, to accept Mr. Hartley's continual entreaties to enter into a consulting arrangement or in a fee sharing arrangement, which is not appropriate or ethical.

[00:02:01] Speaker 03:
The complaint, I also want to point this out at the front.

[00:02:16] Speaker 03:
The complaint, though, also has facts about deposition testimony given by Mr. Hartlieb in the context of the 2022 litigation in, I believe it was Pennsylvania.

[00:02:30] Speaker 03:
There Mr. Hartlieb testifies that he is doing so in order to disrupt my client's ability to represent his clients.

[00:03:40] Speaker 01:
the litigation privilege.

[00:03:43] Speaker 03:
So as the first step of the analysis, we would say no, that Mr. Hartley did not engage in protective activity, and we would submit to the court that the district court did no analysis about questions.

[00:03:54] Speaker 01:
The activities unprotected, because the scope of that is fairly broad under California law.

[00:04:19] Speaker 03:
Your Honor, in this case, Mr. Hartlieb is sending unsolicited emails to judges and the court staff, which is outside the bounds of the main court proceeding.

[00:04:32] Speaker 00:
That's not just one of the instances, right?

[00:04:35] Speaker 00:
That's the Big Lots derivative case.

[00:04:46] Speaker 00:
seemed like he was involved in the litigation in the other instances.

[00:04:51] Speaker 03:
In the Equifax case, the Big Lots case, he did file a pro se.

[00:04:55] Speaker 03:
We can call it a leave to file an amicus brief.

[00:04:58] Speaker 03:
The Big Lots case in particular, he was not a Big Lots shareholder.

[00:05:26] Speaker 03:
court proceeding.

[00:05:30] Speaker 02:
Your honor, we have argued in the paper

[00:05:56] Speaker 03:
refiled in California in 2022.

[00:05:58] Speaker 03:
So we would argue under principles of equitable tolling that the statute was stayed and that my client had an opportunity to file in California where we believe is the proper venue given Mr. Hartley.

[00:06:29] Speaker 03:
to the malicious prosecution.

[00:07:17] Speaker 03:
this prosecution arise?

[00:07:20] Speaker 03:
It arose from Mr. Hartleaf's filing of a case in Kansas, Your Honor.

[00:07:23] Speaker 01:
So it arose in Kansas?

[00:07:25] Speaker 01:
Yes.

[00:07:25] Speaker 01:
So why wouldn't it be barred regardless of this issue by the barring statute?

[00:07:33] Speaker 01:
I mean, you cite the, the party cite the mechanics

[00:07:56] Speaker 03:
you're not that's all true your honor you know however the district court in our briefs have

[00:08:19] Speaker 01:
apply for the reasons you just said.

[00:08:22] Speaker 01:
Its tax seems to squarely control the situation.

[00:08:26] Speaker 01:
I do not have a case, Your Honor.

[00:08:28] Speaker 02:
I'm struck by something you earlier said.

[00:08:30] Speaker 02:
I thought you voluntarily dismissed your defamation case in Pennsylvania.

[00:08:35] Speaker 02:
Uh, we did, Your Honor.

[00:08:37] Speaker 02:
Why?

[00:08:38] Speaker 03:
I actually don't know the reason why.

[00:08:54] Speaker 03:
In Pennsylvania, there were claims of defamation and tortious interference.

[00:09:01] Speaker 03:
But in California, we were primarily focused on abusive process.

[00:09:05] Speaker 03:
The idea was to get to the point where a motion could be filed for a vexations, letting it order against Mr. Hartley.

[00:09:12] Speaker 03:
And wiser, we believed that we needed to be filed in California.

[00:09:22] Speaker 03:
If I may, to go back to the main analysis in our conversation about protective activity, as the Corps was mentioning, the second prong of the analysis

[00:10:00] Speaker 03:
There were other attorneys and there was a court administrative staff to the board who was CC'd.

[00:10:05] Speaker 01:
What about the email to, I think it's Judge Watson in another case, were attorneys CC'd on that one?

[00:10:14] Speaker 01:
Yeah, that was Mr. Hartleaf's common practice.

[00:10:17] Speaker 01:
Okay.

[00:10:17] Speaker 01:
So they were not true ex parte in the sense that the counsel were not advised of the content of the communication?

[00:10:25] Speaker 03:
I guess that's correct.

[00:10:36] Speaker 03:
Your Honor is jogging.

[00:10:40] Speaker 03:
I believe it was the Big Lots case.

[00:10:43] Speaker 03:
Mr. Weiser was not copied on the email, so I guess in that sense it was ex parte.

[00:10:50] Speaker 03:
Two points in my remaining time I'd like to make.

[00:10:54] Speaker 03:
Mr. Hartley was not an authorized participant in the litigation under the second prong of the litigation privilege analysis.

[00:11:15] Speaker 03:
Mr. Hartlieb's unauthorized participation in the case.

[00:11:19] Speaker 03:
You have in the Big Lots case a rejection of Mr. Hartlieb's position, but still final approval of the settlement in that matter.

[00:11:30] Speaker 03:
In the Equifax case, you have a denial in this instance of my client's

[00:11:44] Speaker 03:
and the district of Minnesota allowed Mr. Hartlieb to speak to the court, but there's no indication in the record or in the complaint that the judge in that matter ratified Mr. Hartlieb's intercession into the proceedings.

[00:11:59] Speaker 03:
So on that basis, in a situation where

[00:12:21] Speaker 03:
I will accept also to point out the standard for the final prong is that Mr. Hartley have some reasonable connection to the case at hand when he made his communication.

[00:12:34] Speaker 03:
And I'll point again to the CenturyLink matter where he was emailing

[00:12:51] Speaker 04:
Good morning, Your Honors.

[00:12:51] Speaker 04:
Again, Chris Kerr on behalf of Michael Hartley.

[00:12:55] Speaker 04:
May it please the Court, I'd just like to pick up from where counsel left off, and I think that he keeps using this term, authorized participant, and I don't believe that that's really the correct test.

[00:13:11] Speaker 04:
The communication needs to

[00:13:28] Speaker 04:
Under the anti-SLAPP statute, the focus needs to be on the activity of the defendant as opposed to the cause of action alleged by the plaintiff.

[00:13:40] Speaker 04:
So if the communications are related to litigation, then it's correct to grant an anti-SLAPP motion on that point.

[00:13:49] Speaker 04:
So that's why we have

[00:13:57] Speaker 04:
a cause of action, the vexatious litigant order as to abusive process and malicious prosecution.

[00:14:04] Speaker 04:
Looking at the activity of Mr. Hartley, Judge Carney found all of it was protected activity.

[00:14:26] Speaker 01:
unconstitutionally unprotected.

[00:14:29] Speaker 01:
Isn't a true ex parte communication with the court illegal?

[00:14:35] Speaker 01:
And wouldn't that then fall within an exception?

[00:14:40] Speaker 04:
In this case, Your Honor, I would make the point that Mr. Hartley is not an attorney.

[00:14:45] Speaker 04:
And therefore, whether he has a communication with the court, he's not subject to the same rules that we are all subject to.

[00:14:53] Speaker 04:
So if there's a

[00:14:55] Speaker 04:
an ex parte community.

[00:15:25] Speaker 04:
of the Anti-SLAP Statute.

[00:15:56] Speaker 04:
a willful, improper act.

[00:16:00] Speaker 04:
And I think the willful term there can shed some light on this situation, where we have someone who's not an attorney, who's engaging in these acts, and may not be fully aware that, you know, as the Court refers to a true ex parte communication, maybe... I don't see anything about science here.

[00:16:18] Speaker 01:
It says that to be protected by the litigation privacy, even if you get past the first prong of

[00:17:06] Speaker 01:
seem authorized by law and therefore it seems not protected by the litigation privilege, unless I'm missing something in U.S.

[00:17:14] Speaker 01:
70 straight.

[00:17:15] Speaker 04:
Well, Your Honor, I think if it relates to the case, if it's not, if there's no ulterior motive or improper, a willful, improper act.

[00:17:53] Speaker 04:
made by Mr. Hartley, but again, not an attorney, related to the Sprint case, which at the time most of these subsequent communications occurred, the Sprint case was already over.

[00:18:05] Speaker 04:
So the idea that he was going to engage in some kind of agreement with the Weiser firm going forward, that was off the table at that point.

[00:18:26] Speaker 02:
Um...

[00:19:04] Speaker 04:
They're all protected activity related to litigation, subject either to anti-SLAPP or to the absolute litigation privilege.

[00:19:12] Speaker 02:
But I mean, is there an argument being made that your client's sort of inviting himself into this forum that gives him this privilege?

[00:19:19] Speaker 04:
Yes, and I think he would have to go outside of the forum for there to be an actionable claim against him.

[00:19:25] Speaker 04:
But damage is done either way, right?

[00:19:29] Speaker 04:
That's as may be, but it's still protected activity.

[00:20:29] Speaker 04:
which is a one-year statute.

[00:20:32] Speaker 04:
Because the case was brought in Kansas, we believe that Kansas law should apply.

[00:20:38] Speaker 01:
Right, but as I understand it, you presented that as under the governmental interests, and have you relied on the boring statute?

[00:20:50] Speaker 01:
Section 360.

[00:21:02] Speaker 04:
Well, I guess I'm not sure I understand the court's question.

[00:21:06] Speaker 04:
We are relying on the governmental interest test, but the statute is a one-year statute of limitations.

[00:21:13] Speaker 04:
So I guess I'm not clear on.

[00:22:12] Speaker 04:
Well, I would say that we've raised it by citing to the case, Your Honor, but no, I don't think that we specifically made that argument.

[00:22:21] Speaker 00:
One question I want to ask is, as you're probably aware, that this court earlier this year had granted a petition for a rehearing en banc on whether California's anti-SLAP statute should apply in federal court.

[00:22:35] Speaker 00:
The party settled before we could hear this case.

[00:22:43] Speaker 00:
I mean, your client has engaged in harassing, obsessive behavior, is now trying to shield himself with the anti-slap statute in the federal court.

[00:22:54] Speaker 00:
Well, I would say potentially yes.

[00:22:59] Speaker 00:
Would you oppose it if the – whatever her disposition says, courtship, sua sponte, we hear this case en banc to address this question?

[00:23:11] Speaker 00:
I think that – well,

[00:23:15] Speaker 04:
Honestly, Your Honor, I don't know.

[00:23:26] Speaker 04:
If the Court doesn't have any further questions.

[00:24:01] Speaker 03:
Mr. Hartley's position is that anything he said, as long as it was to or in a court, is then privileged.

[00:24:08] Speaker 03:
And that's also the decision the district court made.

[00:24:11] Speaker 03:
I will admit that we're all struggling with finding that border, and an en banc review for that reason would be appropriate.

[00:24:38] Speaker 01:
Yes, you were arguing over whether or not Prom 1 is there, but Prom 2 is just a 12b6 issue and you could just have done the same motion as a 12b6 saying that

[00:25:43] Speaker 03:
My remaining 20 seconds echo a point the court made, the Big Lots communication made by Mr. Weiser, Fairfax 170 in our complaint.

[00:25:53] Speaker 03:
That was ex parte.

[00:25:54] Speaker 03:
I'd also like to point out deposition testimony from Mr. Hartley, excerpts of record 45.

[00:26:37] Speaker 03:
alleges that the quid pro quo offer was a continuing theme throughout the facts.

[00:26:42] Speaker 03:
I'll point, for example, excerpts of record 24 and 25 about a conversation Hartlieb and Weiser had regards to the Whitmer v. Sugarman case.

[00:26:52] Speaker 03:
This was in the Central District of California.

[00:26:54] Speaker 03:
Coincidentally, Mr. Hartlieb is alleged to have said he's very familiar with Judge Carney, who is our judge below in the district court.

[00:27:01] Speaker 03:
He offers to collaborate with my client, Mr.

[00:27:22] Speaker 03:
where Ms.

[00:27:25] Speaker 03:
Feinstein at the Abelson search firm actually calls in that.

[00:27:30] Speaker 03:
So I think Your Honor can search the complaint and find multiple