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Ginger Marin, Bionic Lady, Journalist, Actor, Author

With a Little Something to Say

Award of Attorneys Fees: The False Non-Equivalency

William-Shakespeare-Quotes-1024x625.jpgNo one forces any party to get an attorney. It’s for that party’s own convenience.  On the other hand, the party litigating pro se (self represented; also “pro per”) usually does so for lack of funds to pay for an attorney.  The party with an attorney saves his/her own time and effort; the party without any attorney must work full-time as her own attorney.  He is required by the courts to follow every rule and meet a standard of the court’s own making. Right now the courts refuse to award any attorneys fees to a litigant operating as his own attorney with the rationale being that the pro se did not expend any money for a “real” attorney to represent him.

Why should the “wealthier” of the two parties be rewarded for paying for an attorney? Or rather, why should the person representing himself be denied compensation for all the work he had to do in a case?  When a pro see litigant is a defendant in a case, it becomes even more unfair, because he is the one being hauled into court by someone else and being forced to defend himself.

Many people operating pro se work a regular job.  Is one to assume that those people magically get to attend every court appearance for free or that the filing of a document in court may not require them to take time off from work?  Who’s paying?  I would argue that the pro se litigant pays as much as the wealthier one and that pro se litigants should be able to recover “attorneys” fees just like those who pay to have someone else represent them so they can go about their lives carefree.

The legal system is entirely unfair in this regard.  Either all parties are entitled to fees or no parties are entitled.  I prefer that no party get fees.  Often the legal system requires that each party pay his/her own way, however, there are many statutes that allow for the award of attorney fees and costs. In many states if you simply make a motion and lose or oppose a motion and lose or you act or don’t act, you can be subject to sanctions and have to pay the other party’s attorneys’ fees.  The whole process should be done away with. If the wealthier party can afford an attorney, good for him, but the less fortunate should not be penalized which is precisely what’s happening now.

A lawyer can change anywhere from $250 to $600 or more an hour. That’s far above your average worker’s salary. That means you might have to pay those exorbitant costs if attorneys’ fees are awarded against you. And since the attorney can just claim that he spent 10 hours working on a motion, for example, you’d have to pay for his 10 hours and more in the way of costs (filing the motion, travel, parking fees, etc.).  He has offered no real proof, for one thing. It’s simply his word. And if he did spend 10 hours preparing a motion, you can bet the pro se litigant was forced to spend twice to three times as much time on a motion or an opposition to the attorney’s motion because the pro se has far fewer resources to pull from. 

If the wealthier party had to absorb his own costs at all times, maybe then they’d be a little more judicious in how they work the case. A wealthier party up against a less fortunate party will try to take advantage, knowing that the opposition can never prevail in getting his or her own attorney fee awards. They’ll just keep rolling over you, happy to force you into bankruptcy. They can play dirty tricks and essentially get away with it because there is no punishment for them.

This is not a justice system. This is a farce.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.

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America’s Fake Outrage

Last week, the Syrian government used chemical weapons, sarin gas specifically, that took the lives of 70 of its citizens, children among them, “beautiful babies” as Trump called them.  America was OUTRAGED.

Big agri-chemical companies poison American citizens on a daily basis.  Our bodies are filled with harmful chemicals from pesticides, lead, mercury and on and on that affect our immune systems, endocrine systems, brain, liver, kidneys, etc.  America is NOT outraged.

As many as 29 million Americans, about one in 10, lack health insurance according to a May 2016 article by thefiscaltimes.com, causing many to go without any kind of health care which can lead to debilitating diseases and death.  America is NOT outraged.

The United States still, after all these years, does not have universal health care.  America is NOT outraged.

Before the Affordable Care Act, health insurance companies did not have to cover pre-existing conditions. Many people including “beautiful babies” died slow horrible deaths from their horribly debilitating preexisting conditions.  America was NOT outraged.

The big pharmaceutical companies get away with charging obscene amounts of money for their cache of drugs, some of which are so expensive that health insurance companies won’t pay for them and people cannot afford to buy them which leads many people, including “beautiful babies”, to die slow painful deaths,.  America is NOT outraged.

In January 2014, the number of homeless veterans was cited at 49,933. They get no health care, no food; they’re becoming sick, dying from suicide, illness, hunger, exposure to heat and cold.  America is NOT outraged.

According to the National Alliance to End Homelessness, 564,708 people in January 2015 were homeless on a given night in the United States. Of that number, 206,286 were people in families and 358,422 were individuals. About 15 % of the homeless population, 83,170, are considered “chronically homeless” individuals.  They die just like the homeless veterans from the very same reasons, including from violence committed against them.  America is NOT outraged.

Factory farming’s bad practices encourages nonstop use of antibiotics in non-sick animals causing antibiotic resistance in humans which leads to severe illnesses not being treatable. People suffer; people die.  America is NOT outraged.

Los Angeles, as just one example, allows the construction of homes within feet of freeways, deliberately exposing citizens to high levels of known toxic chemicals which wreak havoc on their health, shortening their life spans and yet, America is NOT outraged.

Our governments ignore infrastructure. Bridges collapse and people in cars careen to their deaths; freeway overpasses collapse and people get crushed to death. People are killed just walking on our crumbled, overlapping sidewalks; pipes burst from age, people get sick from toxic emissions, some get cancer; railroad tracks are outdated and trains derail causing death and injury.  America is NOT outraged.

How are we all NOT outraged by the supreme hypocrisy of our governments and by our own obliviousness?

The Amazing Hacksaw Ridge and Andrew Garfield

hacksaw-ridgeHere it is February 2017 and it’s time for the Academy Awards to be broadcast this Sunday.  The awards’ season opened with people jumping up and down over La La Land for who knows what reason. The movie sucks. I guess people forgot what really good musicals are like. It wasn’t that long ago when “Chicago” hit the screen. Now that was a great musical.

In any case, I could not let this season go by without commenting on the Mel Gibson directed film “Hacksaw Ridge” starring Andrew Garfield. It’s spectacular from start to finish. It tells the story of WWII American Army Medic Desmond T. Doss, who served during the Battle of Okinawa, a true conscientious objector who refused to kill people and became the first man in American history to receive the Medal of Honor without firing a shot. He saved the lives of 75 soldiers single handedly in a feat of determination, strength and undying faith.  This is what a real hero looks like.

Andrew Garfield’s performance demands more than just an Oscar nomination. He deserves the win. He physically and emotionally embodies Doss and when he talks of faith and why he cannot pick up a gun, you believe every word and truly understand the motivation.

Garfield is surrounded by excellent acting from his fellow cast members including Vince Vaughn and Sam Worthington. Exceptional are Hugo Weaving and Rachel Griffiths as Doss’ parents. There is one scene that takes place in the Doss kitchen between Desmond and his parents that is stunning and heartbreaking as the father’s pain is horribly exposed.  It is what turns Desmond into the direction of conscientious objector and becomes the very thing that causes his father to step up and commit to his son’s decision to fight the enemy in his own way, as a medic, working to save the lives of his fellow soldiers.

The film is absolutely gruesome in displaying the horrors of war; body parts blown off, intestines exposed; heads blasted; rats feasting on the remains. Yes, it’s sickening but it’s real. This movie deserves much credit this Oscar season. Garfield’s performance deserves the award for best actor.  Hacksaw Ridge is nominated for best film and Mel Gibson for best director but they’ve got some stiff competition, unfortunately also from the aforementioned La La Land.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.

Little Stupid Civil Case: Part 2: Defendants’ Big Mistake, Filing a Cross-Complaint

As mentioned in Little Stupid Civil Case: Part 1: How Far 1 Company Will Go to Destroy 2 Lives, the plaintiff home building company sued the defendants using eight different aliases and “aka” (which means ‘also known as’). Usually a person is sued with an “aka” attached if they are known as a different person (for example, a divorced woman going back to using her maiden name) or for doing business under a different name. 

Suppose a book author writes under a known alias and if it’s a defamation case against the author, for example, you may wish to include the alias under which that person writes. But it’s usually only included if you don’t know a person’s legal name.  In the case of these defendants, the plaintiff knew their legal names because it had actually done business with them using their legal names. It signed a legally binding contract with them.

So what was the motivation to alter their names for the lawsuit?  Well, the allegations against them were that they were using aliases to disparage the company on the Internet. The company felt harassed so what better way to get back at them than to do the same, disparage them, and portray them as criminals to the eyes of the court and public. Every court-filed document contains the caption (cover) page showing all those aliases as if they were master criminals on the run.

The first big mistake the defendants made was in responding to the lawsuit without contesting the inappropriate names. But as someone told them even if they had done that, the company would simply have had to have changed the complaint and it would still go on. So be it. They still should have contested it on that basis because it was wrong, legally wrong. 

The second big mistake they made was in making a cross-complaint based on what they believed was abuse of process and libel per se for the plaintiff using all those fake names. The defendants believed they had a legal right to sue the company for disparagement. They were mistaken. They were hit with what is called an anti-SLAPP motion and in California, it’s based on California Code of Civil Procedure section 425.16 which perceived their cross-complaint as a SLAPP, a strategic lawsuit against public participation.  Many other states have similar statutes. Make sure you don’t fall prey to the dreaded anti-SLAPP motion if you decide to sue someone or some company. The use of the statute has become very prevalent.

The Code in California

Here’s how the statute reads in CCP § 425.16. “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.  The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.”  It continues, ”A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The law was enacted by the state Legislature almost twenty years ago and amendments have been made since that time to improve the law and provide stronger protection from meritless lawsuits to anyone who is SLAPPed in California. A SLAPP lawsuit, therefore, is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

The law’s original intent was actually to protect average citizens from being harassed and sued by companies when they exercised their free speech and petition rights against those companies.

If you read up on the law, you will see some of the following statements: “The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization’s ability to operate. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.”  Within this context, the defendants became the “SLAPP plaintiff” because they were the ones who filed the cross and the home building company became the “SLAPP defendant”.

The defendants filed their cross-complaint because they believed 1) they had a right to sue and, 2) that the company was now disparaging them.  Knowing this and reading the previous paragraph, can you see how absolutely ludicrous it was for them to be hit with an anti-SLAPP motion?  Nothing applies; they weren’t trying to intimidate anyone or create mounting legal costs for the company.  They were trying to exercise their own right to “petition for the redress of grievances.”

But, the argument against them was that by suing the company, they were violating the company’s free speech rights to petition the courts (i.e. sue the defendants) and, in the process, use whatever fake names they dreamed up to sue them under. The court therefore ruled in the company’s favor and the defendants’ cross-complaint was instantly dismissed.

Since one of the clauses in that statute pertains to the payment of “mandatory” attorney fees for the loser in this scenario, the defendants were hit with over $10,000 in fees. Defendants are representing themselves because they can’t afford an attorney. If they can’t afford an attorney, they can’t afford to pay that ridiculous amount in fees. 

The moral of the story is, don’t think that you can just easily file a cross complaint. Complaints are subject to different responses and anything other than a straight answer could put you in hot water to pay attorneys fees and costs.  The anti-SLAPP motion is just one perfect example. Beware.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.

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Little Stupid Civil Case: Part 1: How Far 1 Company Will Go to Destroy 2 Lives

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A home building company constructed hundreds of homes on a large tract of land that bordered a senior citizen community. Some of the people closest to the construction complained that their lives were being disrupted; their physical health severely compromised by the toxic diesel fumes they were being exposed to for up to 12 hours a day; their homes damaged inside and out by earthquake-like vibrations, filth, debris, termites and rats; their vehicles damaged by over-spraying of stucco and paint; their mental health being comprised by all the stress and expense of having to cope with the circumstances.

The home builder ignored their concerns and just kept on “trucking”. Large construction cranes perched precariously over their tiny homes; one slip and they’d all be goners.

One man didn’t give up and complained louder than all the others. He got a bit of compensation for his trouble and was forced to sign an agreement to keep his mouth shut so the other people in the community who were also being harmed would never know. But before the man had signed that agreement he had told his story to a blogger.

Suddenly the man was no longer able to speak to that blogger again so the blogger became increasingly concerned that the victim of the home builder had become sick or died. The blogger took to the internet and told the story of the victim, his wife and the entire community and likened the home builder company to ‘bad Germans’.

Fast forward 6 months. The company sued the senior citizen victim and his wife, claiming that they were the perpetrators of the so-called online “disparagement” that breached the agreement, that they were using aliases (including the name of the blogger and some other totally fabricated names) to conduct a ‘campaign of terror’ against the company and that the company should be allowed to destroy their lives in return.  The defendants have no money so they’ve been forced to represent themselves in court.

The publicly traded company had hired a big whopper of a law firm with dozens of attorneys and here’s what has been happening ever since.

  • Time spent on case since lawsuit filed – 1 year, 1 month and counting.
  • Time left to trial – 6 months.
  • 125 documents filed so far and counting.
  • 15 court hearings so far, 10 more scheduled, not counting any new ex parté.
  • 2 defendants deposed for a loss of 22 hours of their time plus expenses.
  • Over $10,000 awarded to plaintiff in attorneys fees because defendants followed the law and filed a cross-complaint that got dismissed. The plaintiff had demanded $20,000.
  • Money spent to date – $75 000+ by plaintiff (an educated guess); several thousand dollars by poor defendants who live on fixed incomes.

In the course of what is called the “discovery” phase of a lawsuit where both  parties supposedly exchange information relevant to the case, the defendants were forced to answer very detailed questions about their past and present personal lives, including where they went to high school and college, if they got any awards, honors and degrees, where they lived as children, including every place they have ever lived and for how long, when and where they were born, who their parents are/were, if they have any other relatives, what their doctor’s name is, every unfortunate event in their lives, their careers including the names of projects they happen to be working on, everything about past military service, possible trouble with the IRS, other countries and states where they’ve ever had a driver’s license, and numerous other highly personal questions that have no bearing whatsoever on the case. The plaintiff, on the other hand, refused to answer  even the most basic relevant questions.

In such instances, the lawyers will always claim that you have no right to object to their ludicrous questions and that even if you do object, you still have to answer the questions. And the law actually supports that. It’s absurd.

Only after all those ridiculous questions were presumably exhausted did the attorney turn to anything remotely relevant to the case.

During the litigation, both defendants were forced to file motions for protective orders to try to halt the insanity of having their personal lives further exposed to the world via a public court process that allows a party to place everything into evidence, relevant or not. Once a document has been filed with the court, it can never be withdrawn. It’s there forever, for everyone to see and anyone who takes the time and pays the copying fees can get a hold of it.  So even if you don’t want something to be exposed to the world, you still have to state the nature of the privacy and defend your position in court documents, which means, essentially, that you have to tell the world about your personal horror, embarrassment, disease – if that’s what it is – so the judge can then decide if you’re entitled to the privacy you’re claiming.

And don’t think for one minute that “common sense” rules. Only the statutes and case law do. Statutes by themselves have no weight. You need case law, which are other decisions by other courts. And if case law supports having someone drawn and quartered over some issue, not even the same issue as yours, you can be sure that the opposition will exploit that law to have you publicly whipped into submission. Common sense does not rule. A statute may very clearly state the law on its face but unless there is case law that you can cite to support the statute, judges don’t seem to want to make an independent ruling. They just say they have to follow the law … and without case law to support your argument, you have none … and that means you’re back to square one and seriously out of luck.

The discovery process is a joke. In a civil case as I’ve described, it is in fact a deplorable joke. And the courts have placed laws on the books that allow this disgraceful corruption of justice to go on. You literally have to fight tooth and nail to protect yourself; you have to know the law and how to apply it. If you’re defending yourself as these defendants are doing, you have to become lawyers yourself. The unfortunate thing is that while the courts demand that self-represented parties conduct themselves as professional attorneys all of the time, they refuse to allow self-represented parties to reap the same benefits when it comes to attorneys’ fees and awards of sanctions. At best, you can claim that you spent 60-bucks filing a motion and should get that back if you win said motion. The fact that you were forced to spend 20-hours drafting that motion is irrelevant to the courts. But the attorneys always get paid.

The idea that self-represented parties take on the legal system by choice is false; they do it because they have to. Not many people can shell out $50,000 a pop or more when something untoward comes their way.

The defendants have pending motions for sanctions against the plaintiff and its attorneys for several code violations related to the service of multiple  illegal deposition subpoenas to third-party companies for their business records, evidence suppression, oppressive discovery, obstruction and gross unprofessional conduct due to myriad violations of the professional rules of conduct specified by the American Bar Association and other bodies.

One of the defendants was so angry over the repeated violations that he fired off letters to the California Bar Association, the company’s law firm and two other agencies.  But based on past experience and coming across a 2015 article by the Sacramento Bee newspaper stating that the Bar association is absolutely useless in dealing with complaints against attorneys, he said he has little hope they’ll reprimand the violating attorneys.

Here’s the potential outcome of this particular case at this time.

  • Lawsuit dismissed at motions for summary judgment in favor of defendants – one month before the trial date and after one year and seven months of their lives. They might be able to recoup a little money for expenses.
  • Lawsuit goes to trial and defendants win – after one year and eight months of their lives. Same deal on the expenses.
  • Lawsuit goes to trial and plaintiff wins on technicality since defendants have no lawyer, or for cause, or for who knows what reason – after one year and eight months of their lives; black marks against them on the books forever and they’re forced to pay all of the plaintiff’s attorneys fees.
  • Formal judgment against poor defendants to pay plaintiff and defendants are forced into bankruptcy so their lives can be destroyed for another 7 years.

Win or lose the case, defendants will still be forced to pay the $10,000 as of this writing in attorneys fees already ordered, not counting any additional sanctions/fees ordered since this article was written because in California (and presumably elsewhere), the courts have decided that you should be subjected to sanctions every time you file a motion and lose, every time you defend against a motion and lose, every time you do anything, and every time you don’t do something in this colossal no-win crapshoot. The whole system should be declared a mistrial. It certainly is a travesty.

So why are these two defendants being prosecuted and persecuted?  Because what the blogger wrote would conceivably be protected as free speech under both the U.S. and most state constitutions. The attorneys need scapegoats to get a judgment against them in order to skirt the free speech rights of a third party. Obviously, the defendants want to win the case so they can go back and sue for malicious prosecution … something that will probably take another year of their lives

I’ve said it before, the American Civil Liberties Union is nowhere to be seen when it comes to actual civil liberties. Our legal system has made us all slaves to stupidity, gamesmanship and corruption. The sad thing is that people’s lives are on the line … physically, emotionally and financially. There is no equal protection under the law, other than to be equally abused, harassed, criminalized and bankrupted into oblivion.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.

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New Book Release From Ginger Marin

“Adventures in Avalon: An Offbeat & Quirky Adult Bedtime Story” by Ginger Marin was published in paperback on June 24, 2016. The book is also available in Kindle Format and it can be read for free via KindleUnlimited. Click the link to go straight to the Amazon sales page.

AdventuresInAvalon_LARGE.JPG

Description:  Intrepid reporter Ginger Marin discovers a lost civilization of cartoon people living in Middle America, in a town called Avalon in the County of Ligature-Upon-Avon … one of those quaint little communities that is somewhat lost in American space, neither here nor there but definitely somewhere.

Her dispatches from the front lines will thrill and excite you as she describes all the crazy things cartoon people do when they think no one’s watching. You’ll read the fascinating, slightly raunchy, true tales of the Avalon Defense Department (a.k.a. police department) where rock star police detective General Schnitzkof, a former British officer, and his trusted assistant, rookie cop WingWing, a rotund little dumpling of a “lad”, solve some of the town’s most absurd crimes such as these: “The Case of the Missing Member or How John Sir Gwaine Bobolini Lost One of His Family Jewels and How He Recovered It … Well Sort Of”, “The Case of the Missing Haunted Mobile Home” and last, but certainly not least, “The Cream Puff Caper”, where you’ll meet some of Avalon’s worst offenders like that pervert Mr. Parabolikos and murderous old lady Wiggins.

Ginger Marin is an actor-writer living in Los Angeles. For information about her acting credits, please visit Ginger’s IMDB Page.  Also follow Ginger Marin on Goodreads.

Goodreads Giveaway for “Adventures in Avalon: An Offbeat & Quirky Adult Bedtime Story”

Giveaway runs from July 9th – August 18th

Goodreads Book Giveaway

Adventures In Avalon by Ginger Marin

Adventures In Avalon

by Ginger Marin

Giveaway ends August 18, 2016.

See the giveaway details
at Goodreads.

Enter Giveaway

https://www.goodreads.com/giveaway/widget/194293

Enter for a chance to win one of 5-paperback copies being given away of the deliciously charming and humorous “Adventures in Avalon: An Offbeat & Quirky Adult Bedtime Story” by Ginger Marin.

2016 Oscars Telecast Sucked

Emmy®-winning live television producer David Hill and Oscar®-nominated producer-director Reginald Hudlin produced the 88th Oscars telecast on Feb. 28, 2016. It was absolutely the worst Academy Awards show in history, from host Chris Rock’s endless “OscarsSoWhite” rants to his hawking Girl Scout Cookies to Vice President Biden showing up to talk about campus rape to the corrupted Best Picture video clips and all the way to the inappropriate orchestral music selections. Hill and Hudlin should be permanently barred from ever producing another show.

rock-oscars
Chris Rock

Academy President Cheryl Boone Isaacs had said earlier that she hoped Chris Rock would simply acknowledge the “elephant in the room” and then move on. Instead, Rock rode the elephant in, made it do a song and dance, twirl on its trunk, take a huge dump, throw rotten peanuts at the audience and then finally spout hundreds of gallons of regurgitated bile at them. Not only was this entertainment show not entertaining, it was disgraceful and insulting to all the nominees of every category. And unless they’re all masochists, the attendees, whether members of the Academy or not or job hirers or not, had to sit there smiling and applauding, lest they be perceived as racist.

The only political message that was welcome was winner Leonardo DiCaprio’s pro environment stance. Why? Because if we don’t act now to save the planet and all of its valuable resources, none of us will be around to watch another crappy, vile and insulting Oscar telecast hosted by Chris Rock or anyone else.

Article by Ginger Marin. To learn about her acting, visit Ginger Marin’s IMDB page.  Ginger Marin is also on Google+

James Bond Songs: Book Review

The James Bond Songs: Pop Anthems of Late CapitalismThe James Bond Songs: Pop Anthems of Late Capitalism by Adrian Daub
My rating: 2 of 5 stars

As I was reading “The James Bond Songs”, I kept wondering for whom did the authors write this. For die-hard James Bond film fans? No, it’s too stiff and technical for them. For musicians? Perhaps. For film music composers? Definitely. But even then this book is so specific to James Bond songs that they’ve narrowed the niche of readers to those who want to compose James Bond songs themselves.

I found the book tedious, redundant and not the least bit joyful to read as I was hoping. Since it was written by two music professors, I think it essentially belongs in the classroom. For the general public, not so much.

I received my copy in a Goodreads Giveaway and would have loved to have given it a higher rating. Sorry.

View all my reviews
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