Blake and her Attorneys' Fees

Hinzugefügt: 2026-06-02

[00:00:01]You are live. Jesus Christ everyone.

[00:00:04]>> Uh so um we were recording except for we weren't recording. So >> um we have we have been talking about this and walking through this for 45 minutes. Um not really. Okay.

[00:00:17]>> Uh half an hour 20 minutes.

[00:00:19]>> Half an hour. Okay.

[00:00:21]>> Left and came back. Still nothing. Hey everyone. Uh I am a elder millennial and I don't know how technology works. and Sarah is stepping away from her channel for a little bit and so I am in charge and it has caused uh chaos.

[00:00:37]>> So, but that's that's we're learning together.

[00:00:40]>> Welcome. Welcome.

[00:00:42]>> So, all right, we're officially live now. Um the good news is we're going to sound really smart because we've already discussed what the hell this letter is saying >> parsing this out.

[00:00:52]>> So, yeah. So the judge ordered the parties in the Lively versus Wayfair case.

[00:01:01]>> Yes.

[00:01:01]>> Uh to brief some issues. Who has the burden to prove privilege was one of the issues and um the parties wrote in two pages in compliance with that order.

[00:01:15]This is Lively's order or Lively's letter, excuse me, that we have pulled up. and they start with exactly what I just told you. Pursuant to the court's order at docket 1437, Miss Lively submits the following authorities regarding which party bears the burden of proof of showing that the communication is privileged under 47.1A.

[00:01:37]And what the court wanted was just give me a bunch of parentheticals. Just give me the case law. I don't want your arguments. Keep your nonsense away from me.

[00:01:46]>> No footnotes. Don't try that.

[00:01:48]>> Footnotes. Yeah. Don't slap it down there at the bottom in size 10 font like give me a letter.

[00:01:54]>> PS, this is a Darvo tactic.

[00:01:57]>> Uh, okay. So, we start with the second circuit decision.

[00:02:01]>> Yes.

[00:02:02]>> Which they're talking about presumptions and other matters related to the burden of proof are considered matters of substantive law governed by the law of the jurisdiction whose substantive law applies to the merits of the question and issue. So basically where they are starting is according to the law that governs this court if I have a burden of proof this is a substantive law and it's properly before this court >> right >> because if not it's a procedural law and it can get kicked to California or wherever because state procedural laws do not get tried in federal court.

[00:02:43]>> Right.

[00:02:44]>> So that's where they start. And is it is it fair to say that like if the law in question has an effect on the outcome of a case, it is substantive?

[00:02:54]>> I think that's a way I've heard it described. Yeah.

[00:02:58]>> Okay.

[00:03:01]>> I it gets a little tricky, right?

[00:03:03]Because >> I don't know. Then you get into like treble damages and if treble damages include attorneys fe I don't know. I don't I think I think Gle was here. She could maybe do >> her favorite law school professor is here.

[00:03:21]Okay. So either way, she's saying this is sub. If I have a burden, if anyone has a burden, it's substantive. So let's not kick it out.

[00:03:31]Uh then we go to the dignity health versus mounts and that is a California case and that is saying under California law with respect to section 47 privileges the party asserting this privilege bears the burden to show that the statement was made on an occasion that falls within the statute. In other words, Lively would have to show that it falls within the statute. At that point, the opposing party here, Wayfairer, the burden to prove that statement was made with malice.

[00:04:07]So, I have to prove to you, judge, me, Blake Lively, that this falls within 47.1 >> and the Wayfair parties have to tell you or prove to you that it was made, my statement was made with malice.

[00:04:21]>> Right?

[00:04:24]Once it is established that the statement was made upon ellipses, which we we were a little concerned about reading the first time, what's in that ellipses, Blake? A privileged occasion, the plaintiff may recover damages for defamation only if the plaintiff successfully meets the burden of proving that statement was made with malice.

[00:04:47]And then we're going to quote Lyman himself in the Lively versus Wayfair Studios case discussing 47.1 with other section 47 privileges and explaining that the defendant bears the initial burden of showing that the allegedly defamatory communication was made on a privileged occasion.

[00:05:08]Right? So here Blake would prove that it was privileged because it was a part of this lawsuit.

[00:05:16]Right? or you know if we're talking about the New York Times that it was the reporter's privilege. So, um, we're still at the docket explaining that 47.1 is meant to extend the protection of privilege provided by existing section 47 and that under existing law, a defamation plaintiff bears the burden to allege that a statement is unprivileged under section 47.

[00:05:48]Um, okay. So, now we know that 47.1 is an extension of 47 and this case law squarely applies to it, >> right? And so, so basically what she's saying is I have to show that it falls under 47.1 and then they kind of have to argue that it isn't privilege in this case because it was made with malice.

[00:06:08]>> Right. Right.

[00:06:09]>> Okay.

[00:06:11]>> Um, yeah. The plaintiff must allege and prove that an allegedly defamatory statement is unprivileged as an element of his defamation claim. So Wayfair here would have to prove as an element of their defamation claim that her defamatory statement is unprivileged in terms of of the privileges she's asserting.

[00:06:35]>> Okay.

[00:06:35]>> If I say privilege 200 more times, it's gonna lose all meaning.

[00:06:42]>> Um, okay. Okay, so we've got a treatise here. The defendant bears the initial burden of establishing that the statement was made on a privileged occasion. Once the defendant has met this burden, however, the burden then shifts to the plaintiff to establish the statement was made with malice. Again, all pretty much saying the same thing, right? So right here are all these treatises and case law and all that saying wayfairer or you know I show that it meets 47.1 standards. I say it's privileged. Wayfair then has to say here's how it doesn't fall into that privilege and it was actually made with malice.

[00:07:22]So, Miss Lively submits the following regarding how she may discharge her initial burden to show that the allegedly defamatory communication was made on a privileged occasion.

[00:07:35]Um, we've got Londquist again, or is it just again because we read through all this and realized I wasn't live?

[00:07:44]>> Let's see. So, yeah. So section 41 says that privileges apply when the communications privilege status is disclosed by the complaints allegations.

[00:07:51]What we decided that meant um before realizing we were live is basically that the facts of to that would be necessary to determine that are found in her amended complaint. Right? And so she says, you know, so they use this other one where the complaint shows that the statement is within a class qualified le privilege. It is necessary for the plaintiff to go further and prove that the privilege is not available as a defense. She's basically saying in my second amended complaint, I've met the elements or there's enough there to argue that it is um that it falls under 47.1.

[00:08:24]And then the other example she uses is that holding that so this is from her amended complaint in the dismissal that Lyman issued where he said holding that the fair report privilege applies to Lively providing the complaint to the Times based solely on the allegations in the amended complaint. So what she's saying is back when he dismissed the claim against the New York Times for the fair with the fair report privilege, he just assumed for the sake of that that Lively had given the information to the New York Times. We don't actually know that. There's no discovery or proof that that happened. He just assumed that for the sake of of of doing that. So what she's saying is you can do that here.

[00:08:57]You can just assume some facts. Um, and then yeah, >> so real quick, not actually Golden said I think a procedural matter could be outcome determinative. So going back to whether how to determine whether it's procedural substantive. So there would be like a it depends clause to what to the rule you gave, >> right? That a substantive matter is outcome determinative, but it's a lot more rare to accomplish.

[00:09:24]>> It depends. It depends is the order is the the uh answer to everything. It depends is always the answer. Exactly.

[00:09:30]>> Um, okay. So, back to her arguments here.

[00:09:36]Um, did you read the evaluating defendants section 47.1 and the question of malice looking only to the plaintiff's submissions?

[00:09:45]>> I did not.

[00:09:46]>> So, the the the the thing that's getting me in my mind is that we have two cases that were consolidated. Right. Right.

[00:09:55]And so Blake's statements were when she was a plaintiff, >> right?

[00:10:03]>> But the 47 point damages 47.1 damages are when she was a a defendant.

[00:10:10]>> So it constantly if if I look as stupid as I feel, it is because I am doing a mental graph in my head of where is Blake as the defendant in this analysis.

[00:10:21]Right. So, >> right.

[00:10:22]>> Apologies for doing a lot of mouth breathing over here.

[00:10:28]>> This whole case is just like I feel like you could use this case as just like a law school class.

[00:10:34]>> I've been letting not actually Golden and Little Girl attorney take the lead.

[00:10:38]I'm like, "Y'all are way smarter than me. Just go ahead.

[00:10:43]>> I I >> We can figure this out. You have you You're good at You're good at this, too, >> you know.

[00:10:51]I also have been super brain dead from work. So, I actually do come home and just like >> Also, also, at least for me, the fact that I'm not as smart means that when I do get it, I can explain it to people who didn't go to law school.

[00:11:05]>> Perfect.

[00:11:06]>> We'll get there. We'll land the plane, you guys.

[00:11:10]>> All right. Um section Miss Lively is aware of no authority suggesting that a different burden framework applies where a section 47.1 application seeks damages as well as attorneys fees but submits the following relevant authorities. So she's basically saying this is the framework. I'm not aware of anything else saying there's different framework.

[00:11:33]Um, and then we're talking about kind of damages and attorney's fees as being one. I think that's where that went, >> right?

[00:11:43]>> Um, >> okay. In the absence of an express statutory directive as to the burden of proof issue, we turn to the legislative history of section 47 C, referring to repeatedly referring repeatedly to attorneys fees and damages conjunctively as deterrent and compensatory remedies without distinguishing between the two.

[00:12:05]In addition, AB933 helps take the burden off of survivors by providing reasonable attorneys fees and damages if they successfully defend themselves against meritless lawsuits. Right. So the damages So attorneys fees and damages can be the same, right? The damages can be the attorney's fees, >> right? Right. Miss Lively is aware of no authority suggesting that a different framework applies where in an applicant seeks relief under rule 54 but submits the following relevant authorities.

[00:12:39]Right? So the judge also asked them how does this apply under rule 54 which is the I think the judgments and fees >> section. Um and so she's saying I don't think it's a different framework if 54 is involved but here's what we found.

[00:12:56]Here's what we got for you, judge.

[00:12:59]>> U where a party seeks to establish that a case was exceptional under 15 USC 117A. Did you look that up earlier?

[00:13:08]>> I think that's the trademark.

[00:13:10]>> It's it's uh I didn't, but I can. Let's see. USC >> is trademark 35 USC. I can't remember.

[00:13:16]The court may adjudicate that question on a rule 54D motion. And where such a motion relies on facts outside the record, the court may hear the matter on affidavit or may hear it wholly or partly on oral testimony or on depositions. I love this for her. Hey, let's let's do affidavit. Let's do deposition. Let's do discovery on malice. What? Guys, guys, I have a good idea. What if we did a trial, but the trial was entirely focused on whether or not I'm lying instead of focused on all the other things that a jury might actually like care about that make Wayfair look bad? What if we left all of that out and we had a trial that was focused exclusively on whether or not I'm a liar? That sounds like a really great idea.

[00:13:57]>> What if we went to trial on my worstc case scenario?

[00:14:00]>> Yes.

[00:14:02]>> Like I would not want to I would not want to do this in her position because if you ask for an evidentiary hearing, the evidentiary hearing is going to be can they prove what she's saying is true and they're going to come back and say can we prove that she's maliciously lying.

[00:14:16]>> Right? And when you do malice, you get discovery with regards to malice.

[00:14:22]What?

[00:14:26]All right. I love this for her. I'm I'm tickled.

[00:14:31]Delighted even.

[00:14:34]Uh this the best news I've had all week.

[00:14:40]I love this for her. I hope she gets it.

[00:14:42]I hope she gets everything she wants.

[00:14:44]Holding that defendant is entitled to seek her reasonable attorney's fees and costs and possibly other damages, including under section 47.1, and noting without objection that the defendant intends to seek such fees and damages by separate application or motion.

[00:15:03]>> Okay.

[00:15:03]>> Okay.

[00:15:05]sustaining demir to 47.1 claim because California civil code section 47.1 does not provide a cause of action for relief.

[00:15:16]>> And so we got confused on this and that I looked it up and my argument at least which fair is they're treating this like it is a like it is substantive like they're treating it right by kind of ruling on it as though it is its own thing. Yeah, I think that's where we where we landed.

[00:15:34]>> Yeah.

[00:15:34]>> When we went over this earlier, >> this is where we realized, wait, people are saying that they can't see us live.

[00:15:40]And it's like, well, this is where we were.

[00:15:43]>> Yeah.

[00:15:44]>> We're all on the same page. Um, >> it's all right. It was a rehearsal, >> a dress rehearsal where a procedural vehicle under state law has no equivalent under the federal rules of civil procedure and it is unclear how a party in federal district court could comply with the state law procedure.

[00:16:01]Observing that the state requirements need not be strictly adhered to as long as there is no prejudice to the opposing party in giving notice of the claims and framing the issues and permitting the applicant to proceed by motion.

[00:16:16]So if there is not a battling federal procedural law, >> right, they can >> this second circuit circuit decision says, well, you can use state procedural law when there's no competing federal.

[00:16:29]As if it wasn't confusing enough what is substantive and what is procedural, >> right?

[00:16:38]>> It's because we are massochists and satists. It has to be like there's no other >> explanation for for why we're like this.

[00:16:47]>> Um, >> okay. Observing >> going to court tomorrow.

[00:16:55]>> Clark, keep us updated.

[00:17:01]>> I wish I could go, but I live >> like a seven hour plane ride away and, you know, work.

[00:17:10]>> Yeah.

[00:17:12]actual actual legal cases.

[00:17:14]>> I mean, if there's if there's a procedural hearing, you could go to that. That might be >> if there's a 471 hearing, that might be worth going to.

[00:17:26]>> Um, okay. Observing that a motion best approximated the state law procedure, including its emphasis on speed, economy, and efficiency. observing that a motion best approximated the state law procedure including its emphasis on speed, economy, and efficiency. Great.

[00:17:44]Okay.

[00:17:47]Applying a state law statute that awarded fees beyond the provided for federal rule and holding that the particular mode of enforcing the right provided by state statute is not available to the federal courts does not preclude recovery. Since the right exists, the federal courts may follow their own appropriate procedure for its enforcement. So all this 100 years old, this case is from 1928. I went cuz I was like, I don't like all these dots. It's from 1928.

[00:18:14]>> So >> yeah, >> that's interesting.

[00:18:19]>> Great.

[00:18:19]>> You know, the only reason I'm saying that is because when you're saying like federal courts can do what state courts, you're assuming a burden of going to the state court that in 1928 that is different than now, you know?

[00:18:32]>> Yeah.

[00:18:33]like like well it's three days wagon you know ride to the nearest courthouse and now it's like yeah she can file in California >> and then we get down here to the third page which the judge did not allow them to have and we got all the signatures of all the people oh Ezra is there >> yeah she is there she just didn't she didn't write it >> that's still >> oh I get it okay >> that's still kind of interesting to me or that she didn't sign off on it >> so technically this is a third page page. I understand that there is no substance on the third page, but I would not have done this. I this if a judge told me two pages, I am squeezing a single name down there at the bottom and calling it a day. And you've got the you've got the telephone and all this.

[00:19:17]Um, not actually Golden has a comment. I can't I can't put it up.

[00:19:25]>> Isn't that annoying that you can't do that as a guest?

[00:19:33]I think that 47.1 conflicts with the FRCP, that means Lyman can't enforce it because you can't have two sets of procedural rules at once. So maybe that's why he asked about rule 54. Let's talk about rule 54.

[00:19:44]>> That makes sense.

[00:19:46]>> So I actually let's read Wayfair's letter because I have a feeling I know what Wayfair's argument is going to be and it's going to be rule 54, >> right? This there's a conflicting federal rule.

[00:19:57]>> Yeah.

[00:19:59]Uh, >> which okay. All right. So, Liner Freriedman writes to Judge Lyman, Wayfair Studios. It ends with us. Jamie Heath, Justin Baldoni, Steve Sowitz, Jennifer Ael, Melissa Nathan, the agency group submit this letter brief addressing the question set forth in the courts May 28th, 2026 order.

[00:20:23]>> Jennifer has three N's just saying Jennifer. Sorry.

[00:20:27]>> We love that. I love that for her.

[00:20:29]>> I first of all, let's just let's just a moment for the formatting, a moment for the appreciation of the formatting.

[00:20:34]>> Everything ex is great except for when people don't justify their formatting.

[00:20:40]It which means that it's even on both sides. It makes me absolutely crazy.

[00:20:45]>> Really, >> no one would publish a book like this.

[00:20:48]>> It's not a I but it's a letter. Wouldn't it go to the side?

[00:20:51]>> Makes me crazy. Oh h for justify your damn margins. It makes me crazy because when I worked for the bankruptcy judge, she was a stickler about it >> and so if you gave something to her and you didn't have justified margins, you heard about it. So now I'm like >> the margins have to It also just kind of looks sloppy, >> I think.

[00:21:17]>> I mean, at least it's not a wall of text.

[00:21:20]>> Yeah, that's like we just saw. So That was not helpful. At least they give us these nice question one. Which party bears the burden of proof showing that a defendant's communication is privileged under 47.1?

[00:21:34]>> And I just want to point out they used all the same cases.

[00:21:36]>> I was just going to say dignity health versus mounts. I've seen that somewhere.

[00:21:40]>> Lquist v Rooster Lively v Wayfairer.

[00:21:43]Yeah. Sellers v Rose. They all cases in the other one, >> right? Which again is very lawyers. This case works for me in my favor. No, no.

[00:21:52]This case works for me in my favor.

[00:21:54]>> Yes.

[00:21:55]>> Um >> and here they're agreeing, >> right? The party asserting the privilege lively. Thank you for that. Ellen, bears the burden to show that the statement is within the purview of the privilege at the point the opposing party wayfairer at all has the burden to prove that the statement was made with malice.

[00:22:15]Great. That was much easier to read.

[00:22:18]>> Michael got take note. and they they use exactly the same part of the statute >> or the bill.

[00:22:24]>> The bill expands the privileges already accompassed in section 47 of the civil code to include communications made by an individual who has experienced an incident of sexual assault, harassment, discrimination, regardless of whether or not they have filed any formal complaint regarding the same. Okay, great. We're all on the same page. Yes. Yes. The party asserting privilege under 47.1 bears the burden of establishing all preliminary facts necessary to justify applying the privilege to their communications.

[00:22:55]Okay. So she has the burden to show that this is covered under 47.1. Great.

[00:23:03]whether that burden differs depending on whether the application is for attorney's fees alone or also for treble and punitive damages.

[00:23:17]Um, so now we've got, okay, another California case. Punitive damages may be recovered by the plaintiff under section 3294, where it is proven by clear and convincing evidence, which is more than a prepoundonderance, but less than reasonable doubt.

[00:23:36]How much, I couldn't tell you. That the defendant has been guilty of oppression, fraud, or malice. So clear and convincing evidence is a higher standard. Preponderance of the evidence is a cintillaa of proof. So if you have scales 50/50 and a feather's weight brings you to one side more than the other than you find for that side. It's not 51% 51% is way more than what the actual burden is. It's like 51 percent. I like that 50 point.

[00:24:10]>> Um, punitive damages may be awarded only when the trior of fact finds by clear and convincing evidence that the defendant acted with malice, fraud, or oppression.

[00:24:20]Okay, so now we're talking about punitives, which is a higher burden, which is >> punitives would be maybe damages plus trouble damages, right? So if if we're talking about what are the actual attorney's fees and costs, make that more as a punitive measure, right? To punish somebody. Uh party seeking compensatory damages has the burden of proving compensatory damages by a prepoundonderance of the evidence. That makes sense to make someone whole.

[00:24:52]That's that cintillaa of evidence that changes the scales at your 50/50, >> right? And then tribal damages is just multiplying the compensatory damages by three. And you can't figure out what that number is until you've done the compensatory damages.

[00:25:06]>> Great. That makes Yeah, that's very straightforward. Thank you, Ellen.

[00:25:11]>> We love you. whether the burden difference differs where 47.1b relief is sought through rule 54 of the federal rules of civil procedure. The fee applicant who is lively bears the burden of establishing entitlement to an award in documenting the appropriate hours expended in hourly rates. Great. Rule 54 does not on its face apply to tribal damages for harm caused by defamation action or punitive damages. Hence, there is no authority establishing who has the burden of proof.

[00:25:43]Okay.

[00:25:44]>> How does a defendant discharge his or her burden on remedies provided by section 47.1 assuming rule 54 applies of the federal rules. Reasonable attorney's fees and costs are determined by motion with submissions establishing the amount of the fee award and reasonable costs. Rule 54 does not provide a procedural mechanism for the defendant to prove malice or harm caused by the defamation complaint for purposes of tribal damages. Since Lively has dismissed her claim and relinquished her right to appeal, there is no mechanism for her to meet her burden for punitive and tribal damages. There's no authority to support the notion that a section 47.1 motion prosecuted through rule 54 can be used to do an endun around a plaintiff or defendants's right to a jury trial.

[00:26:35]However, should the court determine that it has the authority under rule 54 to adjudicate factual issues on a post- dismissal proceeding, the parties can be directed to meet their respective burdens in a summary judgement-like proceeding based on the evidentiary record to determine one whether 47.1 applies under section 47.1 C because Lively had a reasonable basis for her complaints of sexual harassment or retaliation, which is what we established in that first question. two, whether Wayfair's defamation claim caused harm to Lively and the amount of damages to compensate for that harm, which is what we discussed, I believe in section two, whether there is clear and convincing evidence that Wayfairer filed its defamation claim with malice, fraud, or oppression as required by California Civil Code 3294, which if you guys remember, Little Girl attorney made a great video talking about the two elements of malice, Right?

[00:27:35]Was the statement made with malice? Was the lawsuit brought with malice? And there are going to be different, you know, the different parties are going to provide proof for the different forms of malice discussed under the statute.

[00:27:50]And what's interesting is they point out here reasonleness is generally a question of fact to be resolved by a jury. So could they even do a rule 54 or some sort of rule 54 adjudication? Does this mean they need a jury for that?

[00:28:05]I would love that. I would love that.

[00:28:07]>> Have we just popped our way back into a trial?

[00:28:10]>> Come on, Lyman. Give us a trial.

[00:28:13]>> Trial. Trial. Hilarious.

[00:28:18]Hilarious. Okay. So, which I'd have to reread the settlement agreement because didn't they forgo a trial?

[00:28:32]Okay. So, pursuant to a settlement agreement this Okay. So, the first thing is any appeal of any orders in the consolidated action. Um, okay.

[00:28:45]Dismissed with prejudice.

[00:28:47]Not this is actually shorter than the the letter that they just submitted to the court. Notwithstanding anything or to the contrary, the stipulating parties acknowledge that she does not release and retains all claims, rights, and remedies in connection with the 47.1. Uh 47.1's not withdrawn. Okay. And they also wave any appeal from the court's determination.

[00:29:07]So the lively action is dismissed with prejudice. That's all it says.

[00:29:18]>> Okay. So going back to Wayfair's letter, reasonableness is generally a question of fact to be resolved by a jury.

[00:29:37]Not a factfinder, a jury.

[00:29:39]>> Yeah, that's I I mean >> Okay.

[00:29:48]And one thing I do want to point out because I was thinking about this. They were saying um where does it say a summary judgement like proceeding based on the evidentiary record. So they're saying we could do this with the record in the consolidated cases.

[00:30:08]I Yeah. I mean are we going to oral argument on whether or not there was malice on both sides? Because I think I mean maybe they have that evidence already and they just decide we don't reopen discovery. We just go based on what we have.

[00:30:26]>> Yeah.

[00:30:27]>> And I mean I can't imagine there's more discovery that they would even really need because ultimately it's going to be down to did she have the reasonable belief, right? It's you don't need other people necessarily.

[00:30:40]You just need her own words. I I the fact that Wayfair is coming back and saying, "Hey, just if you wanted to do like an evidentiary hearing like we were just saying we could you could do that like you could do that."

[00:30:51]>> And I I that's I could you >> I go to trial on the malice issue >> just on Vanzan Vanzan Van Xan. I want to hear it. I want to see it. I want Hey, this court dismissed all of her sexual harassment claims over when it was talking about retaliation and decided to keep that. It said even if she thought there was sexual harassment, this doesn't rise to the level of harassment, right? Hey, remember when the court said all that?

[00:31:24]>> I mean, >> that's because there was no harassment, your honor. She made it all up.

[00:31:31]I I mean, you would think that they would at least use it a little bit, right?

[00:31:37]Like >> maybe not.

[00:31:39]>> I don't know.

[00:31:40]>> The Vans of it all.

[00:31:44]>> I Yeah. I mean, I I think I think it comes down to this.

[00:31:53]There is no authority to support the notion that a section 47.1 motion prosecuted through rule 54 can be used to do an end run around a plaintiff or defendant's right to a jury trial. Okay, we'll do it. We'll fight you on this, but it has to go in front of a jury.

[00:32:05]>> Right. Right.

[00:32:08]It seems like both sides are saying we need to be able to at least have some sort of hearing or trial on this.

[00:32:15]>> But and it sounds like it's got to be a jury trial or at least Wayfairer is saying it should be a jury trial. What is the context of that case that they cited where they were talking about reasonableness going to a jury?

[00:32:25]>> Ed case from 2012.

[00:32:30]>> Okay.

[00:32:32]>> Show us the evidence, right? Like I >> this the primary Okay. The primary question presented by this appeal. So this is in the Edgerly case. It's a question of first impression under California law.

[00:32:50]Should alleged violations of a charter city's municipal law be deemed violation of state law for purposes Okay.

[00:32:57]So they're talk So it's a FIA claim.

[00:32:59]>> Got it.

[00:33:00]>> They also said there was no violation of state law which Okay. Um I feel very sorry for the judge right now. Honestly, same. We need legal ease translation.

[00:33:16]>> Okay. On which part?

[00:33:20]>> Let me just refer you to Little Girl attorney's videos.

[00:33:24]>> Reason incredibly helpful.

[00:33:30]Okay, so I did like Clark.

[00:33:36]Um, that was a powerful argument at the end, the end run. I did like that sentence.

[00:33:42]>> Yeah. Um, okay.

[00:33:47]Ed Lee failed to address this issue in some issue in opposion to summary judgement and on appeal. She ignores that reimbursement of expenses are excluded under the state statute's interpretive regulations. Instead, she said, "I engage in protected activity because I had good faith reasonable belief that the request violated this government code. Reasoness is a generally a question of fact to be resolved by a jury." Here, however, Edger's argument misses the point that the challenge reimbursements violated no state law. Okay.

[00:34:13]Okay. So, the judge could say, "We don't need a hearing because I decided there was no sexual harassment."

[00:34:27]>> But it doesn't need to be It doesn't need to be >> But it doesn't need to be tried. It doesn't because there's no sexual harassment.

[00:34:34]There are no damages.

[00:34:39]Maybe, >> but for the the damages are for the defamation claim, >> right?

[00:34:45]But but we she has to show that her statement claiming there was sexual harassment was privileged, right? That she made that claim without malice, >> right?

[00:34:58]>> Well, that they have to say to show that it's with >> they have to show it's with malice. And then for her to get treble damages by clear and convincing evidence, she has to show that they brought their case with malice, their defamation case against her. Not actually Golden has a a comment.

[00:35:19]I like the argument just made that the judge ruled she could not have been shed on the law, so how could she have made a privileged statement of sh? I mean, I feel like that's his way out of having a jury trial, out of having a summary judgment like hearing.

[00:35:34]>> Can hear me out, though. Can I can I because let me make let me make the argument.

[00:35:39]>> The reason why he said it is because or at least there was an argument that the California contract is would have potentially brought this under FIA, right? Like if the ALA had been enforcable, that could have that could have shifted it, right?

[00:36:00]>> Yes. And >> so she didn't know.

[00:36:04]>> I did improv, you guys. That's why I'm so annoying.

[00:36:06]>> She didn't she didn't know that the ALA wasn't going to be found to be enforcable, and she argued in court that it was enforceable, and she performed some of it, or however that works. I I mean, does she have a subjective good faith belief that California law applies because of her contract?

[00:36:21]>> I don't think so. She knew that it was still being negotiated. She knew she didn't sign it, right? She knew that there was no meeting of minds on the terms.

[00:36:31]>> Did she know that?

[00:36:32]>> The lawyers should have known that.

[00:36:35]>> I don't think she But that's not that's not the standard. That's not the standard. The standard is the section shall only apply to an individual that has a reasonable basis to file a complaint of sexual assault, harassment, or discrimination, whether the complaint is or was filed or not.

[00:36:50]>> That doesn't >> But I'm saying it's not reasonable for her to think a contract she didn't sign that she didn't have all the terms nailed down applies.

[00:37:01]>> You know what I mean? Because that >> ultimately that contract didn't apply and lawyers were involved. She's She's got people who are sophisticated who should have explained that to her.

[00:37:15]I don't know. I don't I genuinely don't know what the judge does with this because based on everything that was just briefed, both sides are saying we need some sort of hearing.

[00:37:27]Now, Wayfair is like that hearing should be a jury trial.

[00:37:31]>> I think it'd be very hard for him to say we should have a hearing and then he should decide the malice question.

[00:37:36]That's that's getting so far into the weeds of anything that Lyman seems to want to do here, >> right?

[00:37:45]It is a stretch to think California law applied when she never signed the contract with a choice of law. I mean, I think that's her argument though, right?

[00:37:53]Is like, >> yeah, I'm just saying we had this contract. We were performing under the contract.

[00:38:00]>> Yeah. I think it's easier for him to say it's not reasonable for her to think there was sexual harassment because this doesn't come close to rising to sexual harassment under the law.

[00:38:11]>> But he didn't decide that. I mean the only reason like he so h >> I mean when you say though even a layman knows because Clark said even a layman knows unsigned contracts aren't enforceable. I don't I think there's room to poke at that if the person believes that they've performed their contract. And then the question is we still don't know how much she got paid.

[00:38:28]if she got paid according to the contract.

[00:38:31]>> I think clerk that is a good starting sentiment, but I get people in my office all the time who negotiated a contract, maybe they didn't sign it, but I performed under that contract and I want you to enforce that for me. I I get that a lot.

[00:38:48]>> Yeah. Yeah.

[00:38:49]>> Where people have unsigned contracts and they think they still apply. Shoot, I have emails back and forth and people think that makes a contract. And I mean the thing is like I just to just to be clear, I'm not actually arguing this. I don't think she's she would win it. I'm just trying to think where would she start, right?

[00:39:04]>> No, that's we want to see what her best argument is, right?

[00:39:07]>> Yeah.

[00:39:09]>> And same with Wayfair.

[00:39:10]>> Yeah.

[00:39:11]>> I think their best argument is you dismiss this. So there is no reasonable basis under the privilege. He can't show it's privileged.

[00:39:23]>> I caught up to the point where my question was being addressed. Thank you, Nag Brit, Sarah, and Judge Lyman. Yes, SH has not been established.

[00:39:33]How does 47.1 apply?

[00:39:36]>> So, um, where is it? Kenny said, um, oh, Ezra getting involved in the law.

[00:39:42]Because she said, I'm not at liberty to say, and I'm like, what what would make you at liberty? How do we free you so you're at liberty to say? Um, I hear a rumor as to why Ezra might be staying out of this in regard to the future of this law, but I am not at liberty to say. Hm.

[00:39:58]Let's see. Just watch for her to be more involved with it in the future.

[00:40:02]Interesting.

[00:40:04]Um, so, so Ma Harker, can you put that comment up?

[00:40:17]>> Yeah. But the contract alone?

[00:40:19]>> Yeah.

[00:40:19]>> Let it go.

[00:40:23]Um, but a contract alone isn't alone to right override enough to override territoriality law. The contract was an element linking to California law, but even signed, would it have been enough as nothing happened in California? I think the argument I'd make for her, if I was her lawyer, um, please don't include me in the signature block, but if I was her lawyer, is she they're saying, does she have the reasonable belief that she's protected under the law? I don't think the burden is would her sexual harassment claim go to trial.

[00:40:53]It's just does because they're even saying like even if you didn't file the complaint as long as you had the reasonable subjective belief is which yeah is one I'd have to reread the retaliation portion of the summary judgement order dismissing all of her claims, >> right? But it seemed like the judge sort of had a like, is this reasonable? I don't really That's not for me to decide.

[00:41:22]>> I mean, he said he said she had enough for the reasonable or at least if what everything she's saying is true.

[00:41:31]I see how she could have subjectively believed it.

[00:41:36]>> Just so we're all clear, this is Sarah's screen because Britt doesn't know enough about computers to hit her life. So, we let Sarah take the wheel. Um, which is actually better than letting Jesus take the wheel if you ask me. But I do use the Justia Justia.

[00:41:56]Um, I use this website all the time.

[00:41:59]>> When I'm like, I don't know what this federal law is, >> right?

[00:42:02]>> I I don't know. Like, it's it's a good place to start.

[00:42:05]>> Um Um, okay. Thank you for the super chat. Does it matter protected activity changed five times?

[00:42:18]>> No.

[00:42:20]>> Yes.

[00:42:20]>> I mean, it depends. Yeah. I'm just I'm just trying to see like if he wanted to if if you wanted to find in Blake's favor, it it's how do you do that? Um yeah, I think >> also also just just saying communication refers to factual information regarding to sexual harassment or discrimination, but they also put the retaliation in there, an act of retaliation. And her FIA claims did survive with retaliation for the aiding and abetting retaliation, >> right?

[00:42:52]>> Um so there's there's Right.

[00:43:00]>> I'm just trying.

[00:43:01]>> And we would have had a jury trial which could have included an analyzing was there reasonable belief for her bringing those claims.

[00:43:15]>> Didn't they stipulate to protected activity though? How >> they did stipulate? But I don't without that stipulation that could have been an element. I don't think it was going to. I think they were going to bypass all that and say we'll just agree there was protected activity.

[00:43:36]So we are further and thicker into the weeds.

[00:43:42]Um I don't think this is this didn't help me any >> Oh yeah. Sorry. Clark said for purposes of trial. No I mean >> for purposes of trial, right?

[00:43:54]>> But that's what I mean. Had they gone to trial, would all of this have actually been addressed enough in the trial? Like let's say this we were doing this after the trial had happened. My question is could she have used the trial as well as this? Would it have helped her to have had a trial? And I I don't know because if they stipulated then she wouldn't have gotten to put on the evidentiary like put on the record necessarily what her reasonable subjective belief was. Right.

[00:44:21]>> Right. because she wouldn't have needed to >> because they're saying you turned it in, we agree. Sure.

[00:44:26]>> Yeah. So, I'm just trying to think, did how much did not going to trial on this ultimately matter or would we still kind of be here after the trial?

[00:44:40]>> This is such a complicated I don't think it's a well-ritten law because it's so complicated. It's very California. I love >> Did you see um >> But you're complicated girl.

[00:44:54]>> Did you see uh Kate M Kate McAffrey?

[00:44:57]She's an attorney on TikTok.

[00:44:59]She went through the legislative history and one of the things that she pointed out was what the law's intent was was what if somebody and it's it's Johnny Depp and Amber Heard I think is is the logic is >> is what if somebody does a whole defamation claim just for the purpose of forcing the other people to spend money and spend a couple of years of their life dealing with this.

[00:45:21]>> So and and they specifically talk about how at the other end of that trial there's nothing for the defendant to do.

[00:45:27]even if they win, they don't necessarily get their money back. And so in the legislative history, they're talking about it like the trial already happened.

[00:45:34]>> I could have sworn, and LGA, if you're still here, go ahead and correct me if I'm wrong. I could have sworn somewhere along the way. 47.1 was actually created because there was this professor and one of his students called him out for something inappropriate and she did it through the school newspaper and he sued her for defamation trying to force her to spend all this money in the courts to essentially bury her. I think that was why 47.1 was created. I could have just made that up and that's just a story I read about something else entirely.

[00:46:12]>> Again, >> I think I know what you're talking about.

[00:46:15]>> Very stressed at work.

[00:46:18]>> No, I mean, no, it's it's Yeah.

[00:46:23]>> Yeah. See, but Clark, there's certain elements like a statement made without malice, right?

[00:46:32]Oh, so if it's dismissed at the 12B6 stage, which is that initial motion to dismiss stage, is that with malice? If I can get it dismissed like that, like I I don't know. I don't love it.

[00:46:47]>> I think they have to >> a little more clearly.

[00:46:49]>> I really think they just have to say um >> Oh, >> they have to have an evidentiary hearing.

[00:46:57]Like they just have to have an evidentiary hearing on Malice and If what wafer is saying is we don't just need an evidentiary hearing a mouse, we need 47.1. All of this needs to go in front of a jury. So what they're saying if if you want to have Yeah. The amicus I was thinking of that the amicus brief at least something um she's the person that got sued.

[00:47:18]>> Yeah.

[00:47:18]>> She was the one that talked about the history of 47.1 though, right?

[00:47:22]>> Okay.

[00:47:23]>> I was like I know I read this somewhere.

[00:47:25]I couldn't tell you where. This is steel trap, you guys. Steel trap. This is why I have notes on everything. Elise had an affair with a professor, but then didn't he get an appropri inappropriate with her. Wasn't that the whole thing?

[00:47:41]I can't remember. I'll go back and reread that amicus brief for you guys at another time.

[00:47:46]All that to say, so now we know our burdens. Or do we?

[00:47:54]Now we know whether this applies in a New York state court. Or do we?

[00:48:01]>> Lively will drop. So Clark says prediction. Lively will drop the motion if Lyman orders an evidentiary hearing.

[00:48:08]>> I don't think she will.

[00:48:10]>> Can she do that? Because she can drop the motion.

[00:48:12]>> I mean, I'm sure she could. Hey guys, um, remember when I said I wanted to keep this 47.1 damages? I'm actually good.

[00:48:26]Consensual affair.

[00:48:29]Just explore polyamory. Stop cheating on people. Clear as mud. Exactly. Yeah.

[00:48:37]Exactly.

[00:48:38]>> So, I'm still a little hung up on how 47.1 conflicts with 54.

[00:48:49]In my mind, there is a mechanism for obtaining fees, right? And it is this.

[00:48:57]But that's only for attorney's fees.

[00:48:59]That's not for damages. Like triple damages.

[00:49:02]>> Sure. But triple damages for the claims that she agreed to let go of the remaining claims. The other ones were dismissed.

[00:49:15]I don't know.

[00:49:20]Isn't 58?

[00:49:23]>> I mean, look at looking at 54.

[00:49:27]Okay. By local rule, the court may establish special special procedures by which issues relating to such fees may be resolved without extensive evidentiary hearings. Um I just don't So she can't Am I correct in thinking that rule 54 doesn't allow for for damage compensatory impunitive damages? It has to be a jury trial.

[00:49:54]>> Yeah. Let's see. That's how I read it initially when we were talking about this the other day. I read that judge's order >> five times and I was like, "Sure. Yeah, great.

[00:50:09]Clear as mud like Clark just said, >> right?"

[00:50:12]>> And I was like, "I'mma let the other two attorneys take take the lead. Take the torch, my friends, because I'm not a smart man."

[00:50:22]>> I mean, yeah. And Clark says, "How do you determine her damages solely from the defamation suit, not including the so-called smear campaign?" I think I know what she would argue.

[00:50:31]She'd use that expert witness that was talking about Brian Freriedman and argue that his statements are part of the litigation, you know, like try to tie that in. I don't think that I don't think Lyman's going to let any of that happen.

[00:50:47]>> I just don't know how you can have treble damages. And I want you guys to keep in mind treble damages is a very severe punitive measure that is meant to be a deterrent so that when you walk in like we have treble damages for financial exploitation of a vulnerable adult.

[00:51:09]>> So grandma gets dementia, you move in, start spending all of her money out of her paycheck. You could be forced. You you only took a couple thousand dollars.

[00:51:18]Well, now you owe three times that because we don't want people stealing from vulnerable people, right? So to say that those treble damages could apply at the outset without proving any of the claims, I think is what's hanging me up, right?

[00:51:37]Right?

[00:51:37]>> Because treble damages, punitive damages, compensatory damages shows that you won your claims on the merits. Right.

[00:51:50]Right.

[00:51:50]>> And the only issue decided on the merits were the were the sexual harassment claims that were dismissed. Right.

[00:51:58]>> Because they like that that's all we have is based on the undisputed facts, the sexual harassment claims could not go to trial.

[00:52:06]And so I'm a little hung up with Blake's argument that she should get punitive damages for a complaint that was dismissed at the 12B6 stage, which is not a decision on on the merits.

[00:52:23]>> And that's what Lyman even said. He said, "I dismissed that on a technicality." Like those were his exact words. Like I didn't um >> Yeah.

[00:52:32]>> Yeah. I I mean I do think having an evidentiary hearing on 47.1 or a jury trial on 47.1 is the funniest outcome. And I do you know how I know about you know how I feel about funniest outcomes.

[00:52:47]>> I I mean I'm for it for the plot.

[00:52:50]>> Yeah.

[00:52:51]>> But I'm also like if I were the judge somebody earlier said I feel sorry for this judge. Like same right?

[00:52:58]>> I would want to get rid of this. I don't want to have a hearing and waste everybody's time.

[00:53:05]>> Not actually, Golden. What if the fees are the damages? The damage incurred was I had to pay lawyers to get out of it, >> right? Which I think is like a little bit of the purpose of the statute, right? It's like we want to stop people from bringing these things.

[00:53:19]So, we want to compensate victims whose abusers say this was defamation.

[00:53:30]So the fees are the damages, but we still don't have evidence to show that her statement was made without malice in my mind. Right.

[00:53:43]>> Right.

[00:53:44]>> I don't know.

[00:53:47]I don't know.

[00:53:49]Sarah and L are in my group chats where I'm like, I'm not contributing anything because I don't actually this is a nope for me. It >> I I I just I fear that I don't know. And some of those claims were dismissed without prejudice.

[00:54:13]I I don't know. I just I'm struggling with this one. I'm struggling with this one. I don't know if we should be giving punitive damages for a motion to dismiss, right? For, hey, you can't bring this claim under the law because the the sexual harassment I claimed was barred by litigation privilege, by right, >> reporters privilege, all that damages have to be actual.

[00:54:46]That's true. She can't see for like she'd have to point to something and I can That's why Wfair is talking about the evidentiary record, >> right?

[00:54:57]>> Because they she doesn't have anything that she could use.

[00:55:00]>> She can't she doesn't have an argument for that. Yeah.

[00:55:09]Um right. So, under Arizona law, you have to have a specific statute allowing you to get attorney's fees. So, you can get damages and not attorneys fees for a lot of tort claims in Arizona, right? And her damages are her attorney's fees.

[00:55:36]I mean, yeah, Gotautle wants to go outside the evident true record because she doesn't have enough for it. she doesn't have enough to show the damages for her defamation claim. So she's that's why she's asking for a different evidentiary hearing. What Wayfair is saying is we could do an evidentiary hearing with these for the questions being what does 47.1 apply? Did the defamation claim cause harm? And then whether there's clear and convincing evidence that they did it with I like I think they're pointing out the jury thing. And also, this is this is my actual prediction because wait, he's done this like four times where he's like, "Assuming that I think this, could you brief me on the whole argument?" And then they do and he's like, "Well, I don't think that." So, assuming assuming her ALA is in effect, how do you guys think about this? And then they all argue and he goes, "Yeah, her contract isn't in effect, though." And that's the same thing he did with Nathan. Assuming Assuming that there's some sort of an argument for Tag, what would it be?

[00:56:29]Well, Tag's still in this like, >> right? you know, he just I he's just kind of like I think he's just going to do another thing saying 47.1 doesn't apply. But even if it had, I can't do an evidentiary hearing with a new jury trial because 54 doesn't let me.

[00:56:44]>> Right.

[00:56:46]>> So, I think what he's wanting to do is just try to say for the record, this wouldn't have worked even if it had worked.

[00:56:53]Like that's why he was saying things like, you know, like he he just this order did feel a little bit like give me your best arguments on these issues.

[00:57:04]>> Yeah.

[00:57:05]>> Because I've already made up my mind.

[00:57:08]>> Yeah.

[00:57:09]>> But yeah, this case has gotten wild. Um civil procedure can be a beast and I think this case is such a great example of why, right?

[00:57:21]You've got choice of law issue as far as what state law do we apply? Do we apply federal law? Right? Can we bring this in federal court? Right? Can we apply this California? Is this law substitive for procedural?

[00:57:40]He could pull out the extra territoriality decision. He never got to publish. And that's the thing too, right? How are we applying this California state law to claims that I said California state law doesn't apply to? So even if her sexual harassment claims had survived Oh, I forgot we never got a decision on the motion for summary judgement for tag.

[00:58:07]So we don't Yeah, I forgot about that.

[00:58:14]So this is this is civil procedure at its best and worst. Um if your head hurts, so does mine. You are not alone. Uh shout out again. So many shout outs to uh not actually Golden and Little Girl attorney for >> for discussing this over the past week and giving us a rundown.

[00:58:41]um especially a little girl attorney or our our California expert because you guys have given me a lot to think about, but I'm constantly just like I just don't know how we I don't know how we get here unless we're doing it under the retaliation.

[00:58:57]Um, can you put up extra e extraterrestrial?

[00:59:02]Uh, does federal It starts with does federal court judge judges have >> where is it? Your screen.

[00:59:10]>> No, no, no. It's within the comments.

[00:59:12]It's exal.

[00:59:15]>> It's It's their username. I was >> sorry. That's reality. Like, what are we talking about? Um, does federal court judges have discretionary power to go outside rule 54 and set up a jury trial?

[00:59:27]I mean, no. And I don't think he [ __ ] wants to, but I think what Wayfairer is saying is that's the only way that you would be able to do this. I don't I can't imagine I I don't understand.

[00:59:40]And Clark says exactly what I was going to say. Can judge a point by himself factfinder in lie of a jury?

[00:59:45]Reasonableness is a fact for a jury and malice is a fact for a jury.

[00:59:49]So, no, he could >> it would say factf finder, right?

[00:59:57]>> Yeah.

[00:59:59]But if there's case law that says it's a jury issue, then it's a jury issue. It's not a fact issue.

[01:00:06]>> Now, if there was other case law out there that I don't know about that says this could either go to >> a jury or a factfinder and then just for the rest of the case, it said jury, jury, jury just to >> Right. Right. Right. Fine. Okay. Um I didn't read these cases.

[01:00:24]But um they also could wave a jury trial and say we agree to the judge being the factfinder. So that is an option as well.

[01:00:33]Blake Lively was really confident she would get money from the California law.

[01:00:38]I mean >> she still is right.

[01:00:41]>> This is what um I was thinking of earlier. We were talking about Gyaragos.

[01:00:45]Now, I I don't know how I feel about Mark Aragus because he's Brian Friedman's best friend, so he he has he has a motive here. Um, but he was saying that there's this this thing about like how Lively could sue her attorneys for malpractice and they settled, so that makes it harder to do in California.

[01:01:05]Um, and they're talking about the 47.1 thing. And and the part that I'm I'm wondering, >> that's not the rule.

[01:01:13]>> Well, okay. So, here's the thing though, right? Okay. So, that's what I was saying like it's because I think we talked about this like a couple weeks ago when it all first happened and it isn't that isn't the rule, but what is the rule is that it makes it harder to sue over anything that was done as part of the litigation, right? Or as part of the settlement.

[01:01:29]>> So, it doesn't make it harder to sue for malpractice for other things, but it does make it harder to sue for anything that's part of the settlement, right?

[01:01:37]And I guess what I'm wondering is the carveout for 47.1 was part of the settlement.

[01:01:44]Right. I >> One of the things that this does is if let's say this whole time she's been thinking this 47.1 thing was going to be her financial holy grail. Let's just for the sake of argument as Danny would put it using the docket as her GoFundMe, right? So if they carved it out, but then later on it turns out that they actually didn't think that that that was likely going to work as an argument, it's going to be very hard for her to sue for that, right? because maybe they told her, "Well, we'll keep 47.1 and that's worth settling the rest of it because 47.1 is the heart of your case, >> right?" And >> which has also changed five times.

[01:02:22]>> Well, but still like it's, you know, well, that's what we'll say. And also financially, it's the heart of your case because it's the one with the trouble, right?

[01:02:29]>> This is this is where we thought we were going to win big.

[01:02:31]>> This is where the money comes from.

[01:02:33]>> And and then they settle and they carve that out.

[01:02:38]It's very hard for her to sue for malpractice in California for them having traded settling her whole case for keeping 47.1 alive, which wasn't even an issue. It was always going to be alive regardless of what happened.

[01:02:55]>> I want her to sue her lawyers, >> too. I I I mean that's like I just I How much of this is um >> mostly just because I want them to be able to defend themselves by breaching attorney client privilege.

[01:03:12]>> Why?

[01:03:14]>> Yeah.

[01:03:16]>> Why does California law apply to this?

[01:03:19]Anyone anywhere can file a CRD and make anything from anywhere to benefit from a California law. And that's that's what we were getting at earlier is does she have a reasonable faith basis? The California law applied that this 47.1 law applies.

[01:03:37]We decided that retaliation was still going to go forward. Right.

[01:03:44]So, >> right.

[01:03:47]>> Um >> you come back to YouTube Sarah lively.

[01:03:54]God damn it.

[01:03:55]I'll start I'll start a whole pro Blake Lively series.

[01:03:59]But I mean I that's the thing with this 47.1 thing. The 47.1 thing was always going to be decided regardless of what happened with the settlement. So my question is when they're saying 47 G or not Gary Gotautle is going on interviews and saying 47.1 was the heart of her case.

[01:04:15]The thing is like that's that's [ __ ] stupid. But does Lively know that that's stupid?

[01:04:21]Like, and does she know that possibly settling might have barred her from collecting on 47.1?

[01:04:31]>> No. I I don't think anybody really knows. I >> Well, like let's say that Lyman says since there's no evidentiary, the settlement bars you from collecting on 47.1, right?

[01:04:47]Because there's no evident. There's no way under rule 54 I can hold a separate jury trial.

[01:04:54]>> Right.

[01:04:55]>> Right. I So I've seen people say this that Ezra Hudson said that they picked California because of the money. And that might have been what they were talking about. I took it as they filed both FIA claims and federal claims because of the money.

[01:05:08]>> Right?

[01:05:08]>> That's how I took her response in the transcript. But anyway, so like let's say that Lyman says because you settled, I don't have anything to do here. you don't get 47.1 damages, >> right? Because there was no taking this to a factf finder, whether jury or otherwise, >> I don't have an evidentiary record, >> right, that I can use to to do anything >> use unless we're looking at the summary judgement motions and then in that case, >> I dismissed all your sexual harassment.

[01:05:39]I'm so sorry.

[01:05:40]>> But my question is, does Lively like get that? Because and and that's what I think Aragos is kind of getting at is like if the if the lawyers told her, well, we'll do this and we'll still have your 47.1 thing. Not not advising her that if you settle, this might impact the 47.1 thing.

[01:06:02]>> Right.

[01:06:04]Yeah. I I really don't know.

[01:06:09]I really don't.

[01:06:10]>> But you see what I'm You see what I'm getting at? Like I'm trying to think what Garagos might be getting at if he's not full of [ __ ] which isn't if. I I He could be full of [ __ ] But >> I refuse to believe that she's suing her lawyers until I see it because my heart wants it so bad.

[01:06:24]>> Don't get your hopes up.

[01:06:25]>> I can't get my hopes up. Um all this because Blake got her Fifi's hurt. Yeah. I mean, that's >> Yeah.

[01:06:33]>> The amount of people who end up in court because they got their Fifi hurt is many many many people. It's It's the whole system.

[01:06:42]>> It's Yeah. Um I I've like really been disgruntled. Um I'm trying to like shift my career to something a little more me. So I've been like kind of kogyny and disgruntled about litigation. And I'm just getting to the point where I'm like, you couldn't have talked this out. Come on.

[01:07:04]You couldn't have come up with some solution.

[01:07:06]>> It's not like anybody stole from somebody. A lot of lawsuits could be settled by putting the two, the plaintiff and the defendant as like individual parties in those like giant inflatable sumo wrestling suits.

[01:07:18]>> Yeah.

[01:07:19]>> And just putting them outside and saying, you know, for the next 10 minutes, anything that happens, you can't sue each other for >> I really as a kid thought more problems were going to be solved by dance battles. And I think it's so disgruntled as an as an adult.

[01:07:34]>> That's See, there's your reality show.

[01:07:35]You need to become like you could do like um not settlements. What am I thinking of?

[01:07:41]>> Like judge Judy, but instead of having them argue their case, like judge Britney and then just make people do dance battles.

[01:07:48]>> Exactly. Exactly.

[01:07:49]>> I love it.

[01:07:52]Um so I'm interested to see what tomorrow looks like.

[01:08:02]You look at the dock at what they're going to do tomorrow. Let's see.

[01:08:07]>> Uh, a bunch of our content creators are going to go. I think Ellen, Court of Random Opinion is going. Clark said he's going.

[01:08:22]A lawyer. Okay. So, Zayn, I would love to start a practice where I help people mediate their problems and actually have like a team of people including therapists. So you come in for several sessions and then the therapist will like write some sort of report to me that I get to use like confidentially to help them come to their mediation.

[01:08:45]That would be >> Oh, that makes me so happy. Okay, she's gonna go.

[01:08:52]>> Yeah.

[01:08:53]>> Yeah. So, we've got a lot of our people there. They will tell they will tell us exactly what happened. Take notes, people.

[01:09:02]Um, I'm interested to see what this looks like, what he determines because he'll probably tell us what's coming next after tomorrow, right? So, okay, we're not going to go to an evidentiary hearing or brief this issue for me.

[01:09:18]Who knows?

[01:09:21]Yeah. And so, he said, "A care coordinator or care manager for people that need help navigating resources."

[01:09:26]I'll do that.

[01:09:27]>> Yeah. hire me to your firm.

[01:09:30]>> Especially with family law.

[01:09:32]>> Yeah.

[01:09:33]>> Right. Like, could you imagine? Okay, we're getting a divorce. It's it's super content contentious, but we don't want our kids to pay for this, >> right?

[01:09:42]>> So, anyway, those are those are my dreams.

[01:09:46]Hey, Rachel's view.

[01:09:49]And then at the end of the day, if they can't solve their issues, I get to go, okay, now go to litigators. Bye.

[01:09:54]>> Right. You guys need actual lawyers.

[01:09:57]you've graduated.

[01:09:58]>> I'm so sorry. Buy a seashell winchime on your way out.

[01:10:04]>> You could give them at the end of every case you give them seashell winchimes >> for like graduating.

[01:10:11]>> You know how the windchimes always have like some sort of frame. It just is like the scales as the frame and then everything else is a winchime. Okay.

[01:10:19]Anyway, um yeah, family law is where I'd implement it first and foremost. Same.

[01:10:25]Like I think families should be able to split up and work through their issues together in a really holistic way. And I think the courts, so my local, part of the reason I'm saying this is my local courts, all of our judges will drill us from the bench, pull us into chambers.

[01:10:43]Is there anything that we can agree on right now? Is there any sort of way we could come to an agreement? because I'm going to bang the gavvel and then everybody's going to be completely pissed and they're going to be back here in 6 months to a year fighting over all the things that didn't get settled amongst themselves.

[01:11:00]>> So, can we just do that? Let's just jump to that.

[01:11:03]>> So, my judges are really good about that. They're like, "We don't really need to try these issues, do we? Do we >> do we are we sure?"

[01:11:10]>> Um, a few people are saying, "How long would it take?" I don't think that he's going to wait until Jones v able because Jones v Able doesn't even have a status conference until August.

[01:11:19]>> So, he's clearly saying, "Why don't hey, why don't you guys uh like try and settle?"

[01:11:24]>> So, I I think he'll rule on this pretty quickly.

[01:11:30]Um, yeah, I I I don't see him wanting to do an evidentiary hearing on this. I think there's all sorts of procedural issues that bar us from really getting to the merits of whether or not >> all this applies, but I could be wrong.

[01:11:54]>> Yeah.

[01:11:54]>> Right. And maybe he wanted briefing on the burden because it's whose burden to prove.

[01:12:00]>> Yeah.

[01:12:00]>> Because there were some, >> you know, >> I mean, maybe he was thinking judgement motions. Is there is there a law or is there a case that you guys are aware of?

[01:12:11]And he's just like, I genuinely like, has there been new California case law?

[01:12:15]I'm not keeping up with this. So, is there new California case law? And and they're confirming that there isn't.

[01:12:20]>> Right.

[01:12:20]>> Right. There isn't something that addresses this. There's not something in a in a second district court or anything. So, um, yeah, I think I think he's just going to I don't think he's going to rule at the hearing, but I I could see him doing this by the end of the week and saying, you know, or give it a week or two and then and then here you go.

[01:12:37]>> I would imagine, and I think we said this about the summary judgement motions. I'd imagine he has portions of this written up already.

[01:12:45]>> Yeah. Um, and now we're going to argue about some of this burden shifting stuff at a hearing and then be on our merry way. He'll finish it.

[01:12:57]Maybe he'll surprise us. Maybe he knows that we need more. We need more Blake Lively in our lives. Who doesn't need that, right? And >> I mean, maybe he's like, you know, >> jury trial. He's gonna say I wasn't going to do an evidentiary hearing, but then I got so many letters from content creators and they touched my heart and it made me realize that the interests of justice would be served by having an evidentiary hearing solely on the issue of malice.

[01:13:27]>> Yeah.

[01:13:28]>> For us, for the plot.

[01:13:33]Um, I'm so glad that you brought up Taylor Swift because we forgot to make it about Taylor Swift.

[01:13:40]>> Where's my Where's my thing? Hang on.

[01:13:42]>> Get your meme.

[01:13:44]>> Oh, my meme is backwards. Why is my meme backwards?

[01:13:50]>> I don't have it.

[01:13:52]>> So, the cookies made Blake made for IG. Was this reason? I just follow my own friends on IG, >> right? Um, it was an old picture. It was a couple years ago.

[01:14:07]>> Got it.

[01:14:07]>> That she posted some >> My favorite thing about Taylor's cookies is there was an interview and I maybe have talked about this before, but the interviewer was like, "So, after I ate those cookies, I got sick." And she's like, "Nuhuh. Shut up. Don't lie."

[01:14:24]But I'm like, "Oh, those cookies make people sick.

[01:14:29]I don't I have it backwards, but it says, "How can we make this about Taylor Swift?"

[01:14:33]>> How can we make it about Taylor Swift?

[01:14:36]Um, it's about Taylor Swift because she was there with Blake every step of the way. And she can testify that Blake brought these sexual harassment claims without malice. When you guys don't understand her mind, when Taylor Swift said said, "I pay the check before it it it hits the mahogany grain." She's talking about the judge banging the gavvel on the mahogany grain of like the the thing he's sitting on right on the bed >> poetry.

[01:15:11]>> And she's talking about how the decision has been made even before he actually rules. That's what it's it's it's nth dimensional poetry. You wouldn't get it.

[01:15:20]You guys mind >> her mind you just it's you know and honestly um you guys sound like Olivia Rodrigo stands. That's all I'm gonna say.

[01:15:32]>> All right, guys. Um we can't end it there.

[01:15:38]>> Feel free to drop any questions in the comments about Chai Cookies.

[01:15:42]>> Yes.

[01:15:42]>> Um about Taylor Swift. And if you have questions about 47.1, please ask Lil Girl attorney. I like that we're sending it. If you want to ask about Taylor, you can ask this comment section. If you want to ask about the law, go find an actual [ __ ] attorney.

[01:16:00]>> I quit. I'm done.

[01:16:02]>> You just made me realize that I'm not equipped to practice in California and therefore practicing anywhere.

[01:16:08]>> If you have any substantive questions, ask little girl attorney. If you have procedural questions, you can ask us or related.

[01:16:15]>> If it's Yeah, if it's procedural, drop into my comment section. If it's substantive, not actually golden and little girl, I've got you covered. Um, and thank you for coming to this very enlightening information sess session on not really sure what we said. I I I mean, we'll just have to see what the judge does. Um I guess the takeaway, the the soundbite is worst case but funniest case scenario is he could ask for an evidentiary hearing and then we have a trial, but instead of a trial on all the things everybody did, we just have a trial on whether or not Blake Lively lied.

[01:17:04]>> Yeah. Yeah. And >> and wouldn't that be fun for us >> that?

[01:17:08]>> So, and then when Blake loses that trial, she sues her lawyers, >> which again is the funniest outcome, >> but I don't I really don't want her to sue her lawyers because it's such a bad outcome for anyone involved. Like, no good can come out of suing your lawyers because again, that's how we breach attorney client privilege. So all the things they couldn't say before they get to say in their own defense.

[01:17:38]>> But then the you know the argument here and I guess I guess this is the other thing is she gets to kind of say I got misled and and it gets the focus of Wayfair.

[01:17:48]So I guess if you're if you're pro Wayfair in this there you go.

[01:17:52]>> Um I we're not sure what benefit Blake gets from that. If I I you could just have that on a t-shirt and you could just wear the t-shirt every time you're reading something about this case. Karma is an evidentiary trail and fakes duplicity.

[01:18:12]Um I sang that to the like in the same tone of like duplicity guy on the street screen coming straight home to me. I'm not going to sing it because you guys don't need it's too nice of a Sunday. Yeah, we don't need we don't need that. But um I I think what I my other issue too is she has to show for punitive damages, right? That they brought their defamation claim with malice. And what's she going to point to? The we can bury anyone text.

[01:18:55]They defended themselves in court. That got thrown out. How is she going to prove that that was made with malice?

[01:19:04]>> Is she going to point to the same three text messages she's been using this entire case?

[01:19:11]Remember when she said she had voluminous evidence?

[01:19:13]>> I do. And I'm still wondering where it is.

[01:19:16]>> And then the voluminous evidence is just like the stuff she had at the beginning, but now the context makes it not even really evidence.

[01:19:25]I That's that's the other thing too is I'm like she's saying she's going to get trouble damages and her followers are saying she's going to get trouble damages but how and if that burden is clear and convincing evidence those three text messages do not land that plane for her >> not on the yeah >> that is not clear and convincing evidence that Wayfair brought their complaint against her for defamation with malice >> in my opinion Zayn says the clerks this or Zayn says that's why I think Steph lied to her about what she'd find in Discovery. I think so too. I think the question is is like I don't know that I I mean I mean Lively suing Stephanie Jones would be funny.

[01:20:11]That was one I had kind of expected to happen when >> right >> when Jen Abel filed her motion for summary judgement on um indemnification >> saying that Jones Works is responsible for everything that happened before she left which is the bulk of what happened.

[01:20:29]Right.

[01:20:30]>> Right.

[01:20:31]>> The bulk of the smear campaign uh which I say with quot fingers and with thick thick sarcasm.

[01:20:38]I really thought that Steph was gonna be like, "Do I really want to play this game?"

[01:20:43]>> Right.

[01:20:45]I I Yeah, the Jones thing. I won't be surprised if that case settles.

[01:20:51]>> Yeah, I fully anticipate that case will settle >> unless unless they decide not unless Wayfair doesn't want to settle that one, you know, and arguably Nathan and Abel and all them have more of a stake in that one, >> right? So, >> I just do you really want to blow up I mean, and that to me is a question for Stephanie Jones. Do you really want to blow up your career over this?

[01:21:17]>> Right.

[01:21:20]So, >> well, I mean, Stephanie may Stephanie Jones, I can't remember where I saw it, but somebody was pointing to like a podcast or something her lawyers did, and they made it sound like they tried to settle, and Wayfair had said no.

[01:21:32]>> I mean, Wayfair seems to have a pretty decent defense and case.

[01:21:39]I mean, the idea that somebody you hire as an agent can then just privately gather your text messages and hand them over to somebody that wants to do you wrong.

[01:21:51]>> Yeah.

[01:21:52]>> I don't know that there's a law that stops that, but there sure should be, >> right?

[01:21:56]>> I mean, there's going to be >> duty duty something like >> Yeah. There's and it's like the reality is that with with and and every every famous person in Hollywood would have this, right? They have a publicist and the publicist is going to know bad things about them, you know, embarrassing things.

[01:22:13]>> So, is the rule just you can never leave me because I'll air all the dirty laundry that I helped you fix in the media going back?

[01:22:21]>> That can't be the rule, right? Like, >> Right.

[01:22:27]But I guess we'll see. Um I Oh, and I Yeah, I wish we knew it was in the sealed letter the Wayfair lawyers filed after Blake docs Justin and Jaime's addresses.

[01:22:38]>> Yeah, >> I've heard rumors, but I you know >> Sure.

[01:22:44]>> Um I I I Yeah, I don't think we'll ever find out.

[01:22:48]>> Uh rumors. Great album by Fleetwood Mack.

[01:22:53]Um, I mean, I guess we could find out because now I'm wondering that there's no NDA.

[01:23:01]>> That's why I'm wondering I'm wondering what everyone's next step is.

[01:23:05]>> It'll be a part of the documentary.

[01:23:07]>> That's me manifesting.

[01:23:09]>> You mean Popcorn Planets documentary?

[01:23:11]>> No.

[01:23:12]>> Or or like a documentary? a docu whatever whenever they decide to speak whether through it's a documentary or there will be another documentary which >> side both >> both >> yeah I guess we'll get interviewed for it >> leave me out of it I was just I was just some guy on the internet >> that's why after that reporter that's kind of what convinced me to quit YouTube. I say on YouTube. Um, >> wait, which reporter?

[01:23:48]>> Um, the reporter from the Times of London.

[01:23:51]Did I tell you that?

[01:23:53]>> Wait, what?

[01:23:54]>> The reporter from the Times of A reporter from the time of Times of London asked me to talk to her for >> Yeah.

[01:24:03]>> Like, I don't need to be that involved.

[01:24:05]>> Yeah. And and I I the article was kind of what I thought it was going to be, which is pro everyone's making a profit. No, you know, she she only interviewed um creators that had been subpoenaed, but didn't mention the subpoena. And I have a hard time believing that none of the content creators said, "The reason why I'm involved in invested is because I was subpoenaed by Blake Lively for talking about the lawsuit."

[01:24:28]>> Right.

[01:24:28]>> And of course, they don't put that in the law. They never put that in the article.

[01:24:33]>> Yeah, that was weird.

[01:24:34]>> Yeah. the reason why I'm I'm interested in this is because she made me part of it. Um, but she I I wasn't just to clarify, I wasn't subpoenaed, but it just it in the article that was actually published was people who had gotten subpoenaed and they didn't talk about that. I'm like, >> the reason why I'm talking about this, the reason why we're interviewing this person, the reason why we're even looking at this person >> Yeah.

[01:24:57]>> is because Blake doesn't understand the Stryand effect.

[01:25:01]>> Right. Right. And Yeah. And I just >> Yeah.

[01:25:09]>> So, we will check in with our favorite content creators tomorrow to see what they have to say about the hearing. Uh, I'm excited to see what comes next.

[01:25:20]Come on, Lyman. Give me a jury trial on Blake's Malice.

[01:25:26]It's not going to happen, you guys. I just, you know, sometimes do Lulu until it comes true Lulu, you know.

[01:25:35]>> I mean, >> yeah. I mean, no, I think Clark's right.

[01:25:41]If if he said that, she would she would withdraw it.

[01:25:45]Like, >> it's not it's not a good >> outcome for her.

[01:25:50]>> It's not a good Yeah. And it's not a good outcome for any defendant because you don't want a trial that's just about malice. You want a trial that would encompass other things. And yeah, but I I don't think she'd go for a hearing. I think I hope not.

[01:26:09]>> Like like I know that I know that we don't like her, but like as a person I'm like don't but don't do that though, right? It's like watching someone you don't like about to stick a fork in an electrical socket. You're like it's I don't don't do that. just like I don't Yeah.

[01:26:26]>> Yeah.

[01:26:27]>> Uh so >> yeah, it is a little bit like watching somebody. It's like watching a Mr. Bean movie where he's like blindfolded walking into traffic and stuff and you're just like it's like physically painful to watch.

[01:26:41]>> Yeah. Yeah.

[01:26:42]>> Yeah.

[01:26:43]>> So, all right. Well, we will see you guys when we see you.

[01:26:48]>> Figures out how to work Streamyard.

[01:26:54]you will wait forever. The reason I only post on Tik Tok, by the way, you guys, is because that's the only app I know how to use and it took me >> five years to figure that out.

[01:27:06]>> We're here. We're live eventually. We got there.

[01:27:10]So, >> take care of your elderly millennials.

[01:27:16]They are not well.

[01:27:18]Um, and on that note, everyone have the best day.

[01:27:22]>> Have a good week. Bye >> bye.