Roberts' Victory Sticks!

It looks like Jerry Roberts arbitration victory over Wendy McCaw will stick. As you might have heard, McCaw had petitioned the California Supreme Court to review the appellate court decision that had confirmed the arbitrator's award. Today, the California Supreme Court denied that petition which means that they won't be taking her case. McCaw may petition the U.S. Supreme Court to review the lower court decision, but that's an even lower percentage proposition than the petition to the Cal. Supreme Court was.

The refusal of the State Supreme Court case means that it won't be long before Roberts can start taking steps to enforce the judgment he has against McCaw and try to collect the $900,000 and change he is owed by her.

Selma Rubin

By now you've probably heard about the passing of Selma Rubin.


Selma Rubin in February 2010

I learned of her passing on Friday, in an e-mail from State Senate candidate Hannah-Beth Jackson.

Selma was a reader of this blog (or at least she was kind enough to assure me that she was anytime that I would run into her.) The photo above is one I snapped of her at the SB CAN Oscar party in 2010.

She was just shy of 97. More on her remarkable life is at Noozhawk and the Independent.

© 2012 by Craig Smith and www.craigsmithsblog.com

Jerry Roberts Wins On Appeal

Former News-Press editor Jerry Roberts, the beneficiary of a ruling by an arbitrator that the paper's owner, Wendy McCaw, owed him over $900,000 in attorneys' fees and costs has had that award affirmed on appeal.

Framing the issue to be determined in the case as being, "who decides when an arbitration is over," the California State Court of Appeal, concluded that, "The rules governing the arbitration allowed the arbitrator to reopen the hearing and to decide the question concerning the arbitrator's own jurisdiction."

In the eight-page written opinion released on Wednesday, the court noted among other things that under the American Arbitration Association (AAA) rules the arbitrator had the unilateral authority to reopen the hearing and that Ampersand Publishing, the parent company of the News-Press, is estopped from complaining that the arbitrator did not issue a final award by November 15, 2008. By then, AAA had suspended the proceedings due to Ampersand's failure to pay the arbitrator's fees.

As for where the case goes from here, Ampersand and McCaw have no other appeals as a matter of right. They could petition the California Supreme Court to review the decision but that court picks and chooses the cases it wants to hear and the vast majority of petitions for review are turned down. So, Wednesday's ruling from the Court of Appeal could very well be the last chapter in the McCaw vs. Roberts saga.

© 2012 by Craig Smith and www.craigsmithsblog.com

McCaw vs. Roberts Awakens Blogger From His Sleep

Well, I know it's been some time since you last heard from me and perhaps even a few of you out there had given me up for dead, but I'm back blogging today in order to write about something that probably won't get much coverage anywhere else, oral argument in the Wendy McCaw v. Jerry Roberts case. (Officially known as Ampersand Publishing v. Roberts)

You might recall that this is the case where Roberts, the former editor of the Santa Barbara News-Press, was sued by McCaw via her Ampersand Publishing for breach of contract and sought damages of $25 million. The case was arbitrated and McCaw failed to establish any of her claims against Roberts. Roberts was awarded nearly $1 million from the arbitrator. McCaw appealed the decision and the case was heard yesterday by a three-judge panel of the State Court of Appeal which sits in Ventura. Since I was in Ventura anyway to teach a class later that evening, I decided to drop by and watch the oral argument in the afternoon.

The primary issue before the court was whether the arbitrator had lost the power to decide the case by not issuing a ruling within 33 days of the close of the arbitration hearing. McCaw's position was that she had, thus rendering her ruling in favor of Roberts null and void.

Robert's employment contract with McCaw's Ampersand Publications, owner of the News-Press, provided that any disputes would be submitted to arbitration under the rules of the American Arbitration Association. As Presiding Justice Arthur Gilbert of the appellate court pointed out at the argument, AAA Rule 6A provides that, "the arbitrator shall have power to decide his or her own jurisdiction." And on top of that, as Gilbert pointed out, "Aren't there all sorts of cases saying the arbitrator can be wrong about all sorts of things?"

Michael Garrison of the L.A. law firm of O'Melveny and Meyers, who represents Ampersand and McCaw, acknowledged that was true but didn't elaborate. Since he wouldn't elaborate, I will. Arbitrators can issue rulings that can be dead wrong on the substance and procedure of the law, but unless the arbitrator engaged in fraud or corruption, they can't be overturned. So, at least in that regard, McCaw has an uphill battle.

Garrison, nevertheless insisted that the arbitrator gave up her authority to decide the case because she never asked the parties if the arbitration could be extended. That statement prompted Justice Kenneth Yegan to ask, with what sounded to me like a tone of disbelief, "So she loses her power because she doesn't ask you for permission?"

Between the two attorneys who argued the case, Garrison on behalf of Ampersand and Santa Barbara's Herb Fox for Roberts (who was watching from the audience) Garrison clearly spent more time on the hot seat during the course of the oral argument. At one point Justice Gilbert, in a classic example of a cross-examiner wording a question so as to force the person answering to take an extreme position, asked Garrett, "So, if we wrote an opinion supporting your position, we would be saying Rule 6A doesn't apply?" Garrison had little choice but to agree. Whatever the outcome of the case, I think it's a good bet that the court's opinion won't say that Rule 6A doesn't apply.

Towards the end of the argument Garrison tried to emphasize the long delay between the close of the arbitration and the issuance of the final award. In response to that point Justice Gilbert was quick to ask, "Wasn't that because Ampersand didn't pay its arbitration fees?

"That's a fair point," conceded Garrison. Then again, what else could he say?

I would expect the court to issue its decision in this case in about a month.

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Now, just because I've returned from a long hiatus to tell you about the Roberts case, doesn't mean I'm back to blogging on a regular and frequent basis. Casual and sporadic is more my style these days. But, whenever something is worth pointing out or I feel I have something to say, this will continue to be where I say it. Stay tuned.

© 2012 by Craig Smith and www.craigsmithsblog.com

All I Want for Christmas . . .

I know, it’s crass and, yes, my mother brought me up to have better manners than this, but I’m going to do it anyway. I’m going to tell you what I would like you to give me for Christmas. It’s a simple gift and it won’t cost you a dime. So, here’s my gift request: Would you please stop talking, texting and checking your email on your cell phone while you’re driving?

Despite the fact that California has banned talking on a cell while driving (except when using a hands-free device) and texting while driving, yakkers and text tappers are more prevalent than ever. I’m sure you’ve seen them, the driver who instead of looking straight ahead through the windshield is gazing down at their lap looking at their iPhone while waiting for the light to change. The driver who is holding their phone to their ear with their right hand while they palm the steering wheel with their left to make that turn and perhaps, worst of all, the person who is tapping out a text message on their Blackberry while behind the wheel and moving down the road.

So do you think it’s a little forward of me to be asking for this gift? Those of you who engage in these practices are some of my closest and dearest friends. So, let me give you a friendly reminder that all it takes to be law abiding in this regard is not to text and, if you insist on talking while driving, to buy a bluetooth headset or a wired earpiece. Yet, I’m always astounded by the number of people who drive late model BMW’s, Mercedes or Range Rovers who apparently can’t afford an earpiece or a Jupiter Jack. (And if you don’t know what a Jupiter Jack is, it’s time we brought an “As Seen On TV Store” to Coast Village Road.)

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