Ok, so here's my Fabio story:
About 7 years ago I'm defending a noise nuisance case involving neighbors right on the Venice Beach boardwalk. I've got a noisy neighborhood dive bar/greasy spoon restaurant with an upstairs outdoor patio that's been there forever - I think the building was pre-war. It's held together with duct tape and bailing wire.
The plaintiff was an older (late-50's) Persian Jewish guy who is a real estate investor who bought the property next door and renovated it into downstairs office space and a residence for himself upstairs. It's a little hard to explain, but the back of his building is towards the bar even though they're side-by-side as you are facing them from the boardwalk. He's got some (3rd story) windows in his bedroom that open up above the bar's upstairs (2nd story) patio and, if you know Venice Beach, they're right on top of each other - there's maybe four feet between the two buildings, no exaggeration.
As background, Venice is a classic rough-around-the-edges LA beach town, but as with all such places it's getting gentrified. The plaintiff neighbor is part of the gentrification. The bar is most definitely not, and yet such places are very much part of the fabric of Venice Beach. But trying to take down these sorts of bars in Venice is ludicrous - it's like complaining about the Hollywood sign being an eye sore or something.
I said the plaintiff was a Persian Jew because if you know Persian Jews, they are ####### brutal when it comes to business and legal matters. The phrase "no quarter" comes to mind. They'll argue with you over a penny if they think they can use it to screw you one more way on a business deal. Even regular Jews hate Persian Jews in LA. In short, this guy's a complete #####.
But he's also a savvy #####. Practically every night over the course of more than a year during the lawsuit he called to complain to some enforcement agency to come visit my client's property. One night it's the fire marshal to check whether there's too many people in there in violation of the fire code. Another night it's Building & Safety to complain about exposed wires. He complained to the cops repeatedly about sound. He complained to the Health Board about the client's disposal of waste. And on and on and on.
Sometimes my client was cited (hey, it was a noisy-assed beach bar in an old-as hell building after all) and sometimes he wasn't, but it's always an interruption. And my client, a brawling little red-faced Kiwi who most certainly liked his drink, was about ready to beat his neighbor's brains in. I mean that literally - he actually threatened his neighbor on at least one occasion and we had to talk him down. You talk about two people being oil and water, it was those two.
But there's nothing we can do legally about his harassing complaint calls. Even if he calls with a completely fabricated complaint, he's statutorily protected
in CA under the "Anti-SLAPP" statute. The protections are so broad (and rooted in the 1st Amendment) that at trial we can't even mention that the neighbor is the one calling all of these enforcement agencies when we're getting cited. Of course the jury is potentially left with the very prejudicial impression that calls are coming from many people and our establishment really is a nuisance - essentially the community has spoken.
This has been an ongoing problem in this neighborhood. Other restaurants are getting complaints and they're not out of hand. Some of these are pretty nice places, so don't get the idea that this is the Star Wars cantina scene or something (though my guy's bar was closer to that than most others). Residential neighbors are teaming up and making complaints. Anyway, the bar/restaurant owners are pissed off.
We go to trial, which lasted about two weeks. They're putting on testimony from an acoustical engineer who's measuring sound. We're of course in violation but trying to point out that a one-size-fits-all city-wide sound ordinance doesn't make any sense in a city a varied as Los Angeles. 80 decibels outside your bedroom window in Brentwood or Sherman Oaks isn't the same thing as 80 decibels outside on the Venice boardwalk. But we also can't argue the old "moved to the nuisance" standard because that's no longer allowed, so we can't really even get before the jury the theme that the gentrified neighbors are conspiring against the Venice beach establishments in a way that's "un-Venice".
Enter
this chick. I'm avoiding writing her name to make this less searchable. She's a Venice legend. You talk about a brassy ball-breaker, this is your gal. She used to march around Venice's alleyways with a flashlight and roust gang members and drug users. She talks loud, and regularly speaks over you. She acts like she's hopped up on something, but that's just caffeine and her natural mania. She actually looks more normal in that video than she was in person.
We put her on our witness list because she hated the gentrification and particularly ####### hated the plaintiff - she's a classic, rough Venice Beach character, and the plaintiff is your typical West Side patent leather businessman ruining Venice. Her attitude was that she wanted crime out but keep Venice as it is otherwise. She also had some information about how some other property owners (who were on plaintiff's witness list) were exaggerating some of the things they were saying about our client.
I was the lead trial counsel; the attorney who brought me into the case was the guy with the connection to the restaurant, and he was second chairing. We debated for weeks, even before the trial started, about whether to call her. The problem is this: yes, she sides with our client and she's got some favorable things to say, but she's a completely loose cannon. Good luck explaining how there's a pre-trial ruling prohibiting reference to the plaintiff's serial complaints to enforcement agencies and getting her to not say anything, especially when she thinks it's all bulls h i t.
The trial's going ok and I feel like we're scoring some points, but there's also some evidence against us and we finally decide that we need to throw the Hail Mary. If nothing else she'll be memorable. My co-counsel was the one who had the relationship with her and because I felt like she was uncontrollable and I felt I'd established good credibility in front of the jury* (and I had plenty of other things to look after in the trial), I had him do the examination meet with her and prepare to prepare her. My thinking was that if this went all wrong, at least I wouldn't be the one who called her and examined her, and maybe during closing I can roll my eyes and shrug it off and then argue my case. Also, the actual questions we would pose to her were pretty limited.
Sure enough she barges into the courtroom when she's called.
"Where do I go? Is this where I go? Oh great." (speaking of decibels)
The clerk tries to swear her in, but she interrupts the clerk with some comment or question or something.
Her ### is barely in the chair on the witness stand and I'm wishing I was on vacation in Tahiti or something. I'm trying to look like this is all routine as I've got an open depo transcript in front of me that I'm pretending to read, but I'm just thinking "#### #### #### #### ####".
Now, mind you we've both told her before about what she's not allowed to testify about. A whole list of don'ts. She's expressing frustration and we're sympathetic but we're telling her that we'll get in trouble and it will hurt the bar's case if she violates the court's orders. She promises to comply. I have about zero confidence she's going to hold true. I just want to be able to tell the judge that we did in fact inform her of the court's rulings and orders.
She does ok on direct examination, and is laying into the "lying" neighbor witnesses. She's a character and the jury's engaged, but it feels like we're walking in a minefield with snowshoes.
Then cross-examination starts. This is one of those witnesses who you have to consider strongly just dismissing rather than doing your cross. A loose cannon for one side is going to be a loose cannon for the other, but at least she
likes us. This plaintiff's attorney was an old blow-hard who thinks he springs from Clarence Darrow's loins. He felt that he needed to show her bias so undercut her accusations against his witnesses, but you're poking a grizzly bear here.
He starts into her. Naturally, she starts to push back. He then makes the mistake of pointing out how the bar's been cited umpteen times for violations, (and I'm already thinking "Oh ####, here it comes!") and she blurts out, "Well that's because [plaintiff's] calling them every night making up new things to complain about! It's ridiculous! I can't even believe we're here!"
I'm just frozen trying to stifle a smile. Plaintiff's counsel is standing there with his arms apart pleading for help. The judge starts to admonish her, but he's stuck because he doesn't want to say in front of the jury what we're not supposed to say in front of the jury. The judge points out that she needs to comply with court orders and she cuts him off by saying, "But it's true!"
The cross-examination continues, and there are a couple of more rough repeats of this until plaintiffs counsel finally figured out that he was bleeding to death by continuing. The funny thing was that by the end even the judge had given up trying to admonish her, probably on the not-unreasonable grounds that each admonition was only highlighting the problem testimony that he wanted to exclude.
When the cross ended, I grabbed my co-counsel's arm and told him do NOT under any circumstances ask her any more questions. He agreed.
On closing I referred to her as "a piece of work" but also pointed out that she's undeniably genuine and has the best interests of the community in mind. We ended up defensing the case.
*I just remembered that one of the jurors was a regular at our bar. The plaintiff's counsel screwed up and overused his peremptory challenges, using up his last one which caused that juror to go into the box as one of the 12. Realizing his mistake the plaintiff's counsel tried to get him removed for cause and, because the juror assured the court that he could be fair and impartial, he wasn't removed. He was the arrogant old attorney who thought I was young and stupid and yet he committed a rookie mistake on that one.
