Wednesday, February 11, 2009

Judge Sticks to Tentative and Rules for Roberts

Probably the best indication that Wendy McCaw's Ampersand Publishing wasn't going to be successful in convincing Judge James Brown to change his mind about the tentative ruling he announced he would make in favor of Jerry Roberts, was the fact that Ampersand's big gun attorney, Barry Cappello, did not show up in court to argue the motion.

Instead he sent another lawyer from his firm, Dugan Kelly, to do the heavy lifting. And although it was a persuasive effort on Kelly's part, he couldn't get Judge Brown to move even an inch off of his tentative.

To try to accomplish the task, Kelly relied on his strongest argument; that the arbitrator on the case between the former editor of the Santa Barbara News-Press and his former employer, had lost jurisdiction to rule on the matter on August 23rd of last year. (The arbitrator's decision was not issued until September.)

The whole argument centered around a single sentence in the judge's 4,800 word ruling: "The declaration that the hearing was closed on August 20 implies that it was open until that date."

Using a timeline that he projected onto a large screen in the courtroom, Kelly sought to rebut that implication showing that between July 24, the date that the hearing was officially deemed closed, and August 23, the last day for the arbitrator to issue a final award, there had been no communication from the arbitrator seeking consent of the parties to extend the deadline and no request by the parties to do so.

The judge patiently listened to Kelly's arguments and really didn't interrupt him. Roberts' attorney, Andrine Smith from San Francisco, briefly responded to what Kelly had told the judge.

After the arguments concluded, probably a grand total of 20 minutes, the judge, without any other comment, announced that he was adopting his tentative decision.

After the hearing I asked Kelly what was next? "That's what courts of appeal are for," was his answer. I asked if that meant that Wendy McCaw, who owns Ampersand Publishing the parent of the News-Press lock stock and barrel, would appeal the judge's ruling, Dugan replied that was up to Cappello and the client.

After the hearing and outside the courtroom both Roberts and Smith looked relieved. Nevertheless, I got the feeling they felt this was only a temporary respite and there is still a long way to go before this case is over and Roberts can put this matter behind him.

BTW. No one from the News-Press was in the courtroom to cover the hearing. Nor was there a representative from the News-Press present other than Kelly and another attorney from Cappello's office.
© 2009 by Craig Smith and