Where have you been?
Busy. Lawyering. Parenting. Playing Stellaris. Thus and such.
You have obligations!
You have genital warts.
Hey! Be nice. So, what's up with this crazy judge?
You'll have to be far more specific.
You know, the judge who has it in for Donald Trump.
Oh. United States District Judge Gonzalo Curiel, the federal judge that has Trump's jimmies all berustled? This guy?
The trial, they wanted it to start while I am running for President. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .
I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.
And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.
Yeah, that guy. Is he biased against Trump? Are his rulings outrageous or unusual?
No. I mean, I'm biased against Trump. But Judge Curiel's rulings in the case do not seem extraordinary.
What's the case about, anyway?
There are actually two relevant cases before Judge Curiel.
The first is a purported class action filed in 2010, asserting that Trump and Trump University violated California's ridiculously overbroad and malleable unfair business practices law, California's consumer protection laws, California's false advertising laws, that they breached Trump U's contracts, and that they defrauded students, among other things.
The second case is a 2013 purported class action by the same lawyers with the same purported classes of student plaintiffs asserting that Trump and Trump University violated RICO laws.
Wait a second. Don't you always say that civil RICO is bullshit?
Yes. In general, if the defendants don't have "the" in their names, civil RICO is overwrought bullshit. A purported RICO claim split into a separate complaint smells like particularly obvious bullshit. More on that later.
So why didn't Judge Curiel get rid of this at summary judgment, like Trump says?
First you've got to understand what summary judgment is. It's not "my evidence is stronger."
Here's how it works. One side files a motion attacking the complaint, or certain causes of action in the complaint, or maybe a defense, and points out to the court (usually by attaching evidence from discovery) that there is no evidence supporting the other side's position. Then the burden shifts to the other side to come forward with admissible evidence supporting their claim or defense.
So, for instance, say you sue me for copyright infringement for posting your art on Popehat. I could make a motion for summary judgment supplying my declaration that I never posted your art on Popehat. The burden would then shift to you to come forward with admissible evidence — say, a declaration from you, with screenshots — to show that there is a dispute of material fact. That means you have to offer evidence that there's a factual dispute about a fact that's meaningful to the claim at issue.
And then the judge decides who is right?
To be more precise, the judge then evaluates whether there is any evidence to support the attacked claim or defense.
The judge doesn't weigh evidence or determine credibility. If I have 20 declarations saying that your art never appeared on Popehat, and you have one declaration saying that it did, then you win the motion because there is some evidence supporting your claim. But if you can't supply admissible evidence — say, if you can only offer hearsay that someone told you they saw your art on Popehat — then I win.
So what happened here?
In the 2010 case, Donald Trump filed one motion for summary judgment and Trump University filed another.
Trump's own motion argued that he didn't make any of the alleged misrepresentations about Trump University that plaintiffs claim and therefore couldn't be held liable for them, and that the law didn't allow them the damages they demanded. Trump University argued that the law doesn't allow the plaintiffs the damages and injunctions they are asking for. The plaintiffs opposed both motions, arguing they had offered admissible evidence creating factual disputes about Trump's personal liability and Trump University's liability.
So Judge Curiel shot Trump down?
Partially, but not completely. Judge Curiel issued a very detailed 44-page order analyzing the arguments. The order has a good review of the evidence that the plaintiffs offered to support their case.
Ultimately he granted the motions in part and denied them in part. He threw out all of the demands for injunctive relief against Trump University, but kept the demands for restitution and other forms of monetary relief. He based that order on an earlier ruling limiting the class action claims. As to Donald Trump himself, Judge Curiel found that plaintiffs had offered admissible evidence creating a genuine dispute about whether Trump "hand-picked" Trump University instructors as he claimed, that they had offered enough evidence to create a dispute about whether Trump was responsible for Trump University advertisements because he reviewed them personally, and that they had offered enough evidence to create a factual dispute about whether plaintiffs relied to their detriment on false representations for which Trump could be held responsible. The court granted Trump's motion to throw out claims for injunctive relief against him.
The end result was that the demands for damages stayed alive, but demands for injunctions — which really didn't drive the case — got thrown out.
What about summary judgment in the 2013 case?
It hasn't been decided yet. Trump didn't file his Motion for Summary Judgment until April 2016 and it's not even set for hearing until July 2016.
So does the summary judgment order suggest Judge Curiel is a partisan biased against Trump?
Look, in the modern political climate I could burn ten thousand words on this and people who support Trump wouldn't buy it and people who oppose Trump would buy it even if the only word was "dildo." But in my judgment, Judge Curiel's partial denial of the summary judgment is pretty straightforward and well within the range of normal federal judicial decisions on summary judgment.
First, keep in mind Judge Curiel hasn't given plaintiffs everything they wanted — not by a long shot. The point of a class action is to get your individual plaintiffs to represent a huge class of people, so you can prove their individual cases but get damages to cover hundreds or thousands or tens of thousands of people. It's a huge force multiplier and carries the potential for ruinously gigantic damages. Judge Curiel didn't certify the class on all the claims that plaintiffs wanted. That is, as to some of their claims, he said they could only seek their own personal damages, not damages on behalf of everyone who went to Trump University. For instance, he allowed the plaintiffs to represent classes under state consumer laws, but not under state common law claims like breach of contract and fraud.
Later, on Trump's motion, Judge Curiel decertified the class in part. That means that he granted Trump's motion to take away part of their class representative status and modified how they must prove their cases. Specifically, Judge Curiel ordered that (1) the case would have a separate trial on liability and then a separate trial on damages only if plaintiff prevailed (which defendants generally like because it keeps plaintiffs' damages sob stories out of trial and keeps the jury from being prejudiced by big damages numbers or by evidence of how much money the defendants have); (2) rather than assuming if plaintiffs won that all class members would get a full refund, Trump and Trump University would be able to litigate how much value they got and how much or little of a refund they should get.
On summary judgment, he gave the plaintiffs much of what they wanted — he knocked out the demands for injunctions, but those are insignificant compared to damages. But his analysis of the evidence was pretty straightforward. Judges aren't supposed to grant summary judgment if evidence is weak. They're only supposed to grant if if there's no dispute of fact. Here, the plaintiffs offered evidence which, if believed, would show that Trump was responsible for false statements and the students relied on those statements. I don't think it's a particularly notable decision.
Does that mean you think the plaintiffs should win?
I don't have an opinion on that.
It sure sounds like Trump University made false statements and promises. But from what I've seen, the best defense (though not necessarily the one that Trump will follow) is that anyone minimally rational would have recognized that all of the Trump University sales patter was puffery, trumpery, and bullshit, the equivalent of saying your coffee shop offers the most amazing coffee in the universe. But that's a jury question on these facts. Trump's gigantic successes in the Republican primaries demonstrates that many Americans may not share my view that most of what he says is obviously not to be taken seriously. Also, the RICO claim is rather clearly overcharged nonsense, like the vast majority of civil RICO claims. Congress needs to do something about RICO so it's not used as an exclamation point any time anyone sues for fraud. Judge Curiel may yet grant summary judgment on that second case — though Trump's motion in that case is curiously narrow.
So does the record support that Judge Curiel is in the tank for the plaintiffs and outrageously biased against Trump?
No. I don't think it does. However, to reach that conclusion, you need to actually read stuff and have a vague idea of what you're talking about, so I don't expect it to take hold, frankly.
Last 5 posts by Ken White
- Update on The Popehat Podcast - November 30th, 2016
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- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016