Out for bear

(we hear it’s high in protein)

By Arnold G. York/Publisher

I’m into the third day of my three-day “protein only” kickoff to my new diet. On day four, they’ll actually let me eat a tomato or even a fruit, which at this point sounds like ambrosia. But I did find something out that surprised me, and that is why some of us stuff our faces with carbohydrates all the time. Food is definitely self-medication, and fattening food with a little wine to wash it down definitely mellows the soul and softens one’s outlook on life. Without those carbos, we roam the forest looking for game to pounce on, and often it isn’t pretty.

Fortunately, in Malibu, a hungry animal doesn’t have to look very far.

Almost one month ago, the case of People vs. Remy O’Neill and the “Road Worriers” was booted out of court in Santa Monica. The judge said the Statute of Limitations had run, which in lay language means, city of Malibu, you had one year to file this case and you waited too long.

Any lawyer who has waged war (and that’s what it is) in the legal trenches knows that you win some and you lose some, and if you’re good, maybe you win a few more than your fair share. Litigation is always uncertain, risky and subject to the vagaries of the evidence, frequently your client, sometimes the judge and often the jury. Someone wins and someone loses, and it isn’t malpractice to lose any more than it’s great lawyering if you win. But there is one thing any litigator knows, and that is what to do if your case get booted out of court on a Statute of Limitations defense, as happened here. First, you try to explain to your client how this happened because what this means is that they’re never going to get their day in court. It’s over barely before it began. Then you walk out of the courtroom to the telephone and call your malpractice carrier.

I’ll tell you what the carriers don’t say. They don’t say, “Tough luck, York, these things happen.” What they do say is, “Get yourself over here ASAP and bring your file with you,” because they know that if your case gets kicked out at a demurrer hearing, without leave to amend (and in lawyer talk that means the judge didn’t give you a chance to fix it because he felt it was a major screwup and couldn’t be fixed), it generally means someone has screwed up in a major way. Not always, but it would certainly raise a high level of suspicion.

After the court hearing on the O’Neill case, I waited for an explanation, or a fax, or a press release or a phone call from the city prosecutors, the law firm of Dapeer, Rosenblit and Litvak, and in particular the lawyer Bill Litvak, who, I was told by the firm, was in charge of the case. The silence was deafening and even more so because there was nowhere else to go for information. Because it was a criminal prosecution, the city prosecutors were supposed to prosecute the case all by themselves without any input from outside.

“Outside” in this case meant the City Council was not to be part of the process.

“Outside” meant the city attorney was not to be part of the process.

Or did it?

Strangely, in the midst of all this, the council bought out City Attorney Christi Hogin on a 3-2 vote, and, coincidentally, the case against O’Neill and Road Worriers just went away.

Now, I must confess I have a skeptical, suspicious mind, and I could be absolutely wrong. That’s why I called our prosecutor Litvak to find out what happened and to ask a few questions, and to give him a chance to explain.

This is his answer:

In case you’re wondering, he gave us no answer. He never took my calls, nor called back, nor sent a fax, a letter, a smoke signal, or for that matter anything. And the question I ask is, why?

What are you afraid of, Bill?

Don’t you think Malibu is entitled to an explanation?

Do you think you belong to some priestly class answerable only to God?

How about O’Neill and the Road Worriers? You put them through a lot of expense and anxiety. For what? You owe them an explanation also.

Besides, we want to know.

Do you intend to appeal?

Are you accepting the decision and accepting responsibility, or do you think the judge was wrong?

Did you ask him if you could amend your pleadings to add additional counts or change the allegations?

Frankly, I can’t imagine Judge Richard Neidorf, a former prosecutor, denying the prosecution an opportunity to at least try to fix its pleadings.

All I want is an explanation, because without one I begin to imagine things. Who really wants to believe anyone can make a case go away by just changing lawyers?

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The Malibu Times is the first newspaper in Malibu, serving the community since 1946.

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