Thursday, September 13, 2001
S.C. Won’t Review Ruling That Lawyer’s Suit Against Cooley Was SLAPP
By KENNETH OFGANG, Staff Writer/Appellate Courts
A ruling by this district’s Court of Appeal that a suit charging District Attorney Steve Cooley with defaming a criminal defense attorney whose conviction for obstruction of justice was barred by the anti-SLAPP law was left standing yesterday by the state Supreme Court.
None of the six justices voted for review in Milstein v. Cooley, B143854, a court official said.
Div. Five ruled in May that Leonard J. Milstein failed to show “by competent and admissible evidence” that he could prove a case a case of slander based on Cooley’s alleged comments to a reporter for a legal newspaper. Presiding Justice Paul A. Turner wrote for the court in an unpublished opinion.
Milstein sued after the reporter’s story appeared in print in 1999. The story dealt with a suit by Milstein against Cooley and others for violation of Milstein’s civil rights. The reporter quoted Cooley, then a head deputy district attorney and candidate for the office’s top job, as saying that Milstein was “still smarting from the fact that the system—in an effort to preserve the integrity of the criminal trial process—successfully exposed his alleged criminal misconduct.”
Milstein, a former Los Angeles deputy district attorney who now practices in San Luis Obispo, was convicted in 1995 by a Los Angeles Superior Court jury of constructing a false defense at a 1989 trial of a client charged with two drug-related murders. Milstein was found guilty of six felonies, including conspiracy to obstruct justice and perjury, but the Court of Appeal reversed two years later.
Cooley—then head deputy in the Antelope Valley, where Milstein’s client Brad Millward was prosecuted—and fellow prosecutor Robert Foltz charged that Millward and Milstein plotted to use several jailhouse informants to construct a false defense. The jury acquitted Millward of one count of murder, but deadlocked on a second count, and Millward later pled guilty to voluntary manslaughter and was sentenced to state prison.
Milstein’s jury convicted him of one count of conspiracy to obstruct justice; two counts of perjury; one count of offering false documentary evidence; one count of preparing false documents for evidence; and one count of bribery of a witness. The 12-member panel acquitted on two charges—solicitation to commit a crime and subornation of perjury.
Judge William McLaughlin sentenced him to three years in prison, but the Court of Appeal reversed in 1997, saying there was insufficient admissible evidence. The court cited the traditional rule requiring corroboration of an alleged co-conspirator’s testimony.
Milstein then sued the prosecutors in federal district court.
The judge ruled that they were immune, but the Ninth U.S. Circuit Court of Appeals reversed in July. The federal panel said charges of fabricating evidence, filing a false crime report, investigating crimes that haven’t been charged, and making defamatory comments to the media fall outside the scope of the media.
Milstein claims that he was “framed” and that Cooley made his comments to the reporter without cause to believe that the charges were true, with the intent of destroying Milstein’s reputation, and to retaliate for his success on appeal and to bolster Cooley’s then-underdog campaign against Gil Garcetti.
Los Angeles Superior Court Judge Lawrence Crispo declined to dismiss, finding that if Milstein proved the allegations, he would probably prevail at trial. But Turner said that Milstein was required to make an evidentiary showing under the anti-SLAPP law and failed to do so.
Among other actions taken at the court’s weekly conference, the justices denied review in Los Angeles Times v. Alameda Corridor Transportation Authority, B143895.
The court held in that case that the Times was entitled to an award of attorney fees in a California Public Records Act case in which Los Angeles Superior Court Judge Dzintra Janavs held that one of two documents sought by the Times from the agency was a public record but that the other wasn’t.
A plaintiff who obtains partial relief under the CPRA is entitled to attorney fees and costs, acting Justice Paul Boland wrote, unless the documents ordered disclosed are “minimal or insignificant” or the request for the remaining documents was frivolous.
“Any other conclusion would be inconsistent with the express purpose of the California Public Records Act to broaden public access to public records,” Boland, a Los Angeles Superior Court judge assigned to Div. Seven of this district’s Court of Appeal, wrote.
The case stems from revelations in early 1999 that the chief financial officer for the Alameda Corridor agency deposited $3 million of agency funds into her personal bank account.
The agency was established by the cities of Los Angeles and Long Beach to construct a freight transportation corridor from the harbor to rail and truck terminals further inland. The Times sought an audit report prepared by the Long Beach city auditor and two items referenced in a risk-assessment study of the agency conducted financial firm KPMG.
Janavs denied access to the Long Beach audit but ordered disclosure of “narratives” prepared by KPMG, with some redactions
Copyright 2001, Metropolitan News Company