[00:00:00] Speaker 02:
All right, we have one more matter, I think.

[00:00:02] Speaker 03:
Inre Lacher, Pamela Lacher-Pellant, Jeffrey D. Schreiber, Council for Apolize, John M. Lane, and Sue Lane.

[00:00:13] Speaker 02:
Okay, Ms.

[00:00:14] Speaker 02:
Locker, you want to make your appearance?

[00:00:17] Speaker 00:
Yes.

[00:00:18] Speaker 00:
I want to reserve some time and go ahead.

[00:00:23] Speaker 00:
Please, five minutes.

[00:00:24] Speaker 02:
Okay, and go ahead and make your appearance just for the record, okay?

[00:00:27] Speaker 00:
Pam Lacher on behalf of myself.

[00:00:32] Speaker 02:
All right, go ahead.

[00:00:33] Speaker 00:
Okay, sorry, I thought he was going to make his appearance.

[00:00:35] Speaker 00:
Okay.

[00:00:37] Speaker 00:
So, Your Honor, I think that, Your Honors, I think this is an interesting issue of first impression where you have a substantive right of a debtor that they would be able to exercise in the state court, exercise by the creditor 20 million years ago, and instead the creditor takes the or to

[00:00:58] Speaker 00:
exercise their right in a non-dischargeability claim.

[00:01:02] Speaker 00:
And the issue is the intersection of the 523A6 with a specific section of the anti-slap statute, 425.18, which has not yet been addressed by the Ninth Circuit.

[00:01:15] Speaker 00:
And the issue with respect to 425.18 is that it is a very specific – well, the whole California anti-slap statute is a very specific statute.

[00:01:27] Speaker 00:
made specifically for protection of a debtor's or actually a litigant's right to free speech.

[00:01:33] Speaker 00:
That protected right results in an anti-slap judgment.

[00:01:40] Speaker 00:
It's not necessarily because the loser debtor lost on the merits.

[00:01:46] Speaker 00:
It's not necessarily because the loser debtor had a bad faith claim.

[00:01:50] Speaker 00:
They lost because of a statutory, if they get fees against them and they lose, they could lose and get a statutory penalty.

[00:01:57] Speaker 00:
And the statute distinguishes specifically between statutory penalties and tort claim.

[00:02:03] Speaker 00:
And the willful and malicious injury standard, if you look at the two and the intersection of the two together, under a willful and malicious injury, you need to apply or find some tort that applies from the specific state you're in and the statutes.

[00:02:19] Speaker 00:
Here, the specific tort arises specifically out of California's anti-slap statute.

[00:02:25] Speaker 00:
And the legislature specifically said that an abusive process, a malicious prosecution, that those are special torts specifically out of and they are treated differently from an abusive process or a malicious prosecution in a standard lawsuit.

[00:02:42] Speaker 00:
And so the issue is that if you allow or don't allow an anti-slap statute to be applied against the well-formed malicious injury claim, the debtor loses the protection of the anti-slap statute that the California legislature gave the debtor.

[00:02:57] Speaker 00:
Because the California legislature said just because you lose doesn't mean that that's the end of the game.

[00:03:03] Speaker 00:
It means you pay a statutory penalty sort of like discovery costs.

[00:03:07] Speaker 00:
It's to compensate for litigation costs.

[00:03:10] Speaker 00:
If you suffer more and you win the anti-slap motion, then you can say I have tort damages.

[00:03:16] Speaker 00:
But to get tort damages, you have to exercise your right to those tort damages.

[00:03:20] Speaker 03:
Ms.

[00:03:21] Speaker 03:
Lascher, let me take you back to maybe a threshold issue here.

[00:03:26] Speaker 03:
And before you go on.

[00:03:30] Speaker 03:
And I'm concerned about the Gopher media case.

[00:03:33] Speaker 03:
The Ninth Circuit held that an order denying a special motion to strike under California's anti-SLAPP statute is not appealable.

[00:03:44] Speaker 03:
So can we even get to the merits of your argument?

[00:03:49] Speaker 03:
So why do we have jurisdiction in light of Gopher?

[00:03:53] Speaker 00:
Okay, so actually I filed a motion addressed to that issue, and I apologize, I assume that the denial of the motion and the setting of the oral argument meant that we had already gotten past that.

[00:04:04] Speaker 00:
But Gopher Media actually says it's not an immediately appealable order into the collateral order doctrine, but that doesn't get you out of the idea that you can still request for an interlocutory appeal because there's a specific kind of issue.

[00:04:18] Speaker 03:
But your motion for interlocutory appeal was denied.

[00:04:22] Speaker 00:
but we still set oral arguments.

[00:04:24] Speaker 00:
So I was confused because my opponent actually asked to dismiss for lack of jurisdiction, and we're still here.

[00:04:33] Speaker 00:
So I guess if we're still litigating that, I don't know if we're still litigating that issue or we're not.

[00:04:38] Speaker 03:
And if we are, I guess if my... It is a threshold issue that I think we have to decide, so it's important for you to address it.

[00:04:45] Speaker 00:
Oh, okay.

[00:04:45] Speaker 00:
I appreciate that then.

[00:04:47] Speaker 00:
So in this case, the underlying

[00:04:51] Speaker 00:
Well, the reason that you should retain jurisdiction over this is for the fact that the Ninth Circuit has yet to decide the applicability of California's anti-SLAP statute overall.

[00:05:04] Speaker 00:
It's still retained right now.

[00:05:05] Speaker 00:
Gopher Media hasn't gotten rid of it.

[00:05:07] Speaker 00:
Right now, it's my understanding from the case law that the Ninth Circuit treats

[00:05:12] Speaker 00:
the anti-SLAP statute or California's anti-SLAP statute as substantive, but there's definitely a concern as to whether it's a substantive or a procedural type of claim.

[00:05:25] Speaker 00:
My argument is it's a substantive claim, and if you don't use it as a substantive claim, you deny a debtor like me a right that I would have had

[00:05:33] Speaker 00:
had this case been kind of like the discussion you've been having with everybody else before

[00:05:50] Speaker 00:
425.18 says I have a right to do so, I would have done my motion and they would have lost because they would have been kicked out of the water because it's too late.

[00:06:00] Speaker 00:
Or the Converse.

[00:06:02] Speaker 00:
The Carol V. Boer case that comes out of our southern district says that the mere filing – and so does California law – the mere filing of a slap suit in and of itself is not an abusive process.

[00:06:14] Speaker 00:
So the only way you ever get to

[00:06:29] Speaker 00:
where a creditor used the anti-slap statute as a shield to get a case dismissed early on, and now is using that same statute in order to preclude a debtor from getting a discharge, but without having the debtor the ability to use the anti-slap statute to protect themselves.

[00:06:48] Speaker 00:
So the creditor gets to use the statute, but the debtor doesn't.

[00:06:52] Speaker 00:
And I know that I wrote in my

[00:06:55] Speaker 00:
brief about pendant state law claims, and I realize it doesn't really qualify as a pendant state law claim.

[00:07:02] Speaker 00:
However, it is so intimately intertwined that they're inseparable from each other.

[00:07:07] Speaker 00:
And I guess arguably I would say that a federal court could hear the

[00:07:15] Speaker 00:
assuming it wasn't belated, could heal the 425.18 claim concurrent with the statute.

[00:07:21] Speaker 00:
So what I'm saying is that the – for the jurisdiction issue, that this court should keep jurisdiction over the same spirit because it's a matter of public importance.

[00:07:30] Speaker 00:
It addresses the substantive versus procedural issues that reign throughout the Ninth Circuit right now.

[00:07:37] Speaker 00:
and go for me to discuss is that it discusses the ability – it discusses the – for the first time, the use of an anti-SLAP statute to a federal question.

[00:07:46] Speaker 00:
I had realized that a 52386 claim is a federal question jurisdiction.

[00:07:53] Speaker 00:
I realize ERI applies to diversity jurisdiction.

[00:07:56] Speaker 00:
I realize I don't have a complete pendant state law claim.

[00:07:59] Speaker 00:
However, the way that this judgment seeks to

[00:08:07] Speaker 00:
get around dischargeability is by basically making a claim that arises from my filing of a lawsuit deemed a slap that ultimately, if there were tort damages, the creditor would have had to exercise their rights to do.

[00:08:24] Speaker 00:
And so I think it's a matter of public importance for, I want to say for lawyers who litigate all the time, for us to

[00:08:34] Speaker 00:
to know the parameters of anti-slap.

[00:08:36] Speaker 00:
Some sections of anti-slap I noted in my brief apply and other ones don't.

[00:08:42] Speaker 00:
So like the collateral order doctrine was the equivalent of our immediately appealable order.

[00:08:47] Speaker 00:
I had asked for the stay to that section that's immediately appealable in state court, but it was denied, but it was denied based on using bankruptcy law or federal law and not using California's anti-slap statute.

[00:09:05] Speaker 00:
And I think it's important for the court to resolve these issues because – so, for example, let's just say that you rule in my favor, the anti-slap statute applies.

[00:09:17] Speaker 00:
I've now spent another however long it's been since it took me to get to this point.

[00:09:22] Speaker 00:
litigating in the bankruptcy court where I have a substantive right to stop this whole litigation, which also puts us into the second part I was going to ask before I started my argument.

[00:09:33] Speaker 00:
I didn't know – the scope, based on the original appealable order – real – original jurisdiction issue, the scope that you guys left me with was the denial of the anti-SLAPP.

[00:09:45] Speaker 00:
And that denial requires looking at both prongs one and prong two of the statute.

[00:09:49] Speaker 00:
because automatically my speech under California law is protected speech.

[00:09:54] Speaker 00:
So I automatically qualify as protected, and I'm not protected because I'm in the bankruptcy court right now where the federal law hasn't said that my statute that I can use to protect myself applies

[00:10:07] Speaker 00:
as a shield, and it's being used against me more than once in order to deprive me of rights that I personally have in the state law – in the state of California that wouldn't exist in the bankruptcy or the creditors wouldn't be able to pursue unless they were in the bankruptcy right now.

[00:10:26] Speaker 02:
I know there's – I'll point out if this is a good place to pause.

[00:10:30] Speaker 02:
You're right at about five minutes for what it's worth.

[00:10:33] Speaker 00:
Okay.

[00:10:33] Speaker 00:
Thank you.

[00:10:34] Speaker 02:
Oh, sure.

[00:10:34] Speaker 02:
You bet.

[00:10:35] Speaker 02:
Okay.

[00:10:37] Speaker 02:
Okay, let's hear from the appellee.

[00:10:42] Speaker 01:
Thank you, Your Honors.

[00:10:43] Speaker 01:
Jeff Shriver on behalf of the appellant, John Lane.

[00:10:47] Speaker 01:
Going to the first point that was raised by court, Gopher Media, our position is that Gopher Media has now invested this Court of Jurisdiction to hear this appeal because it is an interlocutory appeal from a motion to dismiss

[00:11:03] Speaker 01:
based upon the SLAP statute.

[00:11:04] Speaker 01:
So at this point in time, the courts should dismiss it on the basis of lack of jurisdiction based on the Gopher Media case.

[00:11:12] Speaker 01:
Secondly, because I'm still struggling to find out where Ms.

[00:11:17] Speaker 01:
Latcher is going with this, because the whole issue here of this anti-SLAP statute, we can see that it is available to people in federal court, but it is only available in federal court for diversity actions.

[00:11:32] Speaker 01:
and for where there are pending or supplemental claims to a pending federal question.

[00:11:39] Speaker 01:
This case is a bankruptcy statute.

[00:11:41] Speaker 01:
It is solely a bankruptcy statute.

[00:11:44] Speaker 01:
It's just willful and malicious injury.

[00:11:46] Speaker 01:
It has nothing to do with anything other than a federal question.

[00:11:50] Speaker 01:
And it is very clear under this court's holding in Rusty Sustano, Wogtrotter,

[00:11:57] Speaker 01:
Hilton versus Hallmark cards Lockheed there's been consistency that the anti-slap statute in California has no application in cases involving federal questions and only federal questions she's trying to I don't know whether sick or

[00:12:16] Speaker 01:
appropriately called Muddlet, but she's telling us that she admits that it's not a pending claim, but says that it is a pending claim.

[00:12:23] Speaker 01:
Actually, it is not a pending claim.

[00:12:25] Speaker 01:
It's pretty clear that this is a bankruptcy statute, federal question issue, and that's all we have here.

[00:12:33] Speaker 01:
Further, just for one more point.

[00:12:38] Speaker 01:
This is not just a slap issue.

[00:12:40] Speaker 01:
Where the whole thing comes about is it's her subsequent conduct

[00:12:45] Speaker 01:
in trying to enforce the judgment that was based upon the SLAP statute.

[00:12:50] Speaker 01:
There was, raising all the way to the point that Judge Trapp in San Diego County Superior Court has specific findings of contempt under state law statutes and ordered the Pelley's money damages because of the fact that she had willfully and deliberately

[00:13:14] Speaker 01:
disobeyed court orders that have been issued to her.

[00:13:17] Speaker 01:
So this is not just a slap statute issue.

[00:13:20] Speaker 01:
In fact, that was just the genesis, but it is not the basis for where we're going with this.

[00:13:25] Speaker 01:
She filed several motions.

[00:13:27] Speaker 01:
She went to the appellate court in San Diego.

[00:13:32] Speaker 01:
The California Court of Appeals found that her appeals were frivolous.

[00:13:37] Speaker 01:
So we're talking about not just an anti-slap statute, which has no application, but even if it did,

[00:13:43] Speaker 01:
There are other issues here which have been addressed or in the complaint for non-dischargeability, which have to do with damages, which were the result of trying to enforce this judgment against her and her conduct trying to keep us from being able to collect on the judgment.

[00:13:58] Speaker 01:
So at this point in time, I'm going to submit on that unless the court has any other questions of me.

[00:14:05] Speaker 00:
I don't.

[00:14:06] Speaker 00:
Thank you.

[00:14:06] Speaker 02:
No more questions.

[00:14:07] Speaker 02:
Thank you very much.

[00:14:10] Speaker 02:
Thank you, Your Honors.

[00:14:11] Speaker 02:
Okay.

[00:14:12] Speaker 02:
And Ms.

[00:14:12] Speaker 02:
Locker, you've got a little under five.

[00:14:14] Speaker 00:
Yes, Your Honor.

[00:14:15] Speaker 00:
So if you look at the actual anti-SLAP statute, subsequent conduct 10 years later doesn't arise from the filing of the lawsuit.

[00:14:23] Speaker 00:
And every single act that would be done within the confines of that judgment is considered a SLAP judgment and part of the SLAP judgment.

[00:14:32] Speaker 00:
So for example, the appeal is part of the SLAP fees.

[00:14:35] Speaker 00:
For example, if they file a

[00:14:38] Speaker 00:
a discovery request, well, discovery isn't.

[00:14:41] Speaker 00:
If they, I don't know, they issue a writ and they win the issue.

[00:14:47] Speaker 00:
They automatically get fees because of the slap statute.

[00:14:50] Speaker 00:
But the slap statute is clear that this is, that subsequent conduct ten years later, as they're trying to argue, is not, doesn't fall within the slap statute.

[00:15:00] Speaker 00:
The slap statute is standing on its own.

[00:15:02] Speaker 00:
Secondly, the bankruptcy court subsequent to

[00:15:07] Speaker 00:
subsequent to our appeal has made several orders that are – or – and in relation to our appeal have made several orders that are important to this.

[00:15:15] Speaker 00:
Number one, the bankruptcy court denied collateral estoppel effect to the contempt judgment.

[00:15:20] Speaker 00:
Number two, it's already made a ruling that there is no abuse of process on the filing – a mere filing of the SLAP statute, which is what Carol B. Bowers says.

[00:15:29] Speaker 00:
And the tortious conduct that we're talking about can't be separated out from the SLAP statute.

[00:15:34] Speaker 00:
Under the SLAP statute, the legislature is clear that in order to get tort conduct, damages, as he's trying to say, tortious damages, there's no proximate cause.

[00:15:45] Speaker 00:
Statute says it is a statutory penalty only and that the tortious damages have to arise from the creditor serving a suit on the debtor and proving their point.

[00:15:55] Speaker 00:
This actual underlying judgment, it wasn't on the merits.

[00:15:59] Speaker 00:
It was a judgment because there was no opposition on file.

[00:16:03] Speaker 00:
The court actually gave me leave to amend my original lawsuit and there's actually a law that says, and I didn't know we were getting into the merits of this as counsel did, but there's law that actually says that

[00:16:15] Speaker 00:
that essentially, if you grant leave to amend under the anti-slap statute, it is a legally impermissible exercise of the court's jurisdiction, which would make this judgment void on its face into grant fees.

[00:16:28] Speaker 00:
And in this case, the actual fact pattern shows that it was that the slap statute, this

[00:16:33] Speaker 00:
So that motion was twice denied as moot and only brought back because the court thought that it had to award fees because they granted the demur because I had no opposition on file.

[00:16:45] Speaker 00:
And so this whole judgment actually is void.

[00:16:48] Speaker 00:
What we didn't talk about also is I have a satisfaction that's never been

[00:16:52] Speaker 00:
vacated.

[00:16:52] Speaker 00:
That satisfaction that's never been vacated makes all these subsequent orders void as a matter of California law.

[00:16:59] Speaker 00:
And so I didn't have to comply with any of those, regardless of the merits of them or whether they're valid or a court sanctioned me.

[00:17:05] Speaker 00:
There's a whole body of legal issues that arise around the underlying facts, let alone litigation privilege.

[00:17:13] Speaker 00:
But as far as applicability of the statute, in order for them to – if the court denies the use of this anti-SLAP statute or denies jurisdiction, that means the creditor gets to bypass the statute itself.

[00:17:27] Speaker 00:
And here in bankruptcy court, the creditor gets to say, oh, you proximate cause damage, but I don't have tort damages, because the statute and the case law that I think the supplemental authorities I filed the other day actually says that there is no proximate cause.

[00:17:43] Speaker 00:
Even if I did everything they say I did and I was all wrong, they don't have tort damages.

[00:17:48] Speaker 00:
And therein is the fallout why you have to allow somebody to apply

[00:17:53] Speaker 00:
the anti-slap statute to the 52386 claim.

[00:17:56] Speaker 00:
Otherwise you take away, you turn, you relabel what California calls a statutory penalty and you make it a tortious conduct, which is contrary to actual

[00:18:07] Speaker 00:
And I thought statute – and I would – one thing I didn't argue is that you have to actually comply with statute limitations and affect your rights before you can be a creditor and come here.

[00:18:17] Speaker 00:
They didn't do any of that.

[00:18:19] Speaker 00:
If they – if I did all these bad things to them, they have had 16 years to actually go file a lawsuit against me and get tort damages.

[00:18:27] Speaker 00:
The statute even allows them to ask permission for that.

[00:18:31] Speaker 00:
But the underlying statute, it's been satisfied.

[00:18:36] Speaker 00:
uh... bankruptcy court said no collateral estoppel to any of the the contempt or any of the orders already a ruling of no abuse of process so this whole theory about my abuse to process that's all down if we're talking about post conduct and

[00:18:51] Speaker 00:
Since I didn't know we were going there the state bars already admitted the bankruptcy court did not find Or conclude that I engaged in misconduct and there's a summary adjudication motion now pending The Supreme Court as the court knows remanded it back and didn't affirm any of those findings So there's a lot more than counsel says this looks bad on the outside.

[00:19:10] Speaker 00:
So okay.

[00:19:11] Speaker 02:
I might that might be a good place to rest Okay, we're a little over your time

[00:19:15] Speaker 02:
Okay, so the matter is submitted.

[00:19:16] Speaker 02:
Thank you very much.

[00:19:17] Speaker 02:
Thanks for your good arguments, and we'll get you a written decision as soon as we can.

[00:19:21] Speaker 02:
And with that, I think we're adjourned, right?

[00:19:24] Speaker 02:
Yes.

[00:19:24] Speaker 02:
Okay, thank you very much.

[00:19:25] Speaker 02:
Thanks, everyone.

[00:19:27] Speaker 03:
All rise.

[00:19:28] Speaker 03:
The court has completed its session.

[00:19:31] Speaker 03:
The session is now adjourned.