Courts Seize "Quackbuster" Bank Accounts, Property...
Opinion by Consumer Advocate Tim Bolen
Thursday, February 22nd, 2007
A few days ago, Christopher Grell, one of the Plaintiffs, and the attorney for the Plaintiffs Stephen Barrett and Terry Polevoy , filed an emergency Ex Parte Motion with the Alameda, California Trial Court in the Barrett v. Clark (Rosenthal) case asking for a Temporary Restraining Order preventing Defendant Rosenthal from collecting attorney fees awarded to Rosenthal by the Courts. The Court denied the Motion, and "collection" has begun in earnest.
Rosenthal, you will remember, in a six year legal battle, soundly thrashed the trio all the way to the California Supreme Court. Rosenthal, the head of the Humantics Foundation, a group pointing out the dangers of silicone breast implants, had been sued by the trio in 2000 where they claimed she was some sort of conspirator supposedly defaming them on the internet. Rosenthal, in her answer to the suit, filed a Motion to Dismiss the suit against her claiming that the trio's action constituted a violation of California's anti-SLAPP law. The Court agreed, dismissing the case against Rosenthal, and awarded her attorney fees.
The Barrett v. Clark (Rosenthal) case garnered international notice when virtually ALL of the big names on the internet jumped in on Rosenthal's side, filing "Friend of the Court" Briefs on Rosenthal's behalf. You can read all about that by clicking on "Quackbusters CRUSHED by California Supreme Court..."
But the really good part of all this, the one that makes me smile broadly, is that California's anti-SLAPP law, designed for just this sort of situation, worked just like it was designed. The anti-SLAPP legislation, whose full title is "anti Strategic Lawsuit Against Public Participation," was designed to stop Plaintiffs from filing scurrilous lawsuits against Defendants just to shut them up on a public issue, by overpowering them with litigation they cannot afford. The law provides for the Defendants, by allowing them to collect their attorney fees from the Plaintiff almost immediately upon winning a Motion to Dismiss. The trio were able to forestall that original payment only because they appealed the original Judge's decision to the California Appeals Court, then to the California Supreme Court - where they were soundly, and publicly, horse-whipped.
The trio, apparently, aren't willing to acknowledge their debt, nor their loss. Now, the "collection" process has begun, and the Courts are allowing a ruthless approach to that collection, "as follows: Levy on any & all bank deposit accounts held in name or interest of judgment debtor as well as accounts receivable, lines of credit, general intangibles, and/or proceeds thereof in which he has an interest individually or jointly, include contents of any safety deposit to which he has access; SSN:113-44-9446"
It gets even better - Court documents say:
INFORMATION FOR JUDGMENT DEBTOR
1. The levying officer is required to take custody of the property described in item 1 in your possession or under your control.
2. You may claim any available exemption for your property. A list of exemptions is attached. If you wish to claim an exemption for personal property, you must do so within 10 days after this notice was delivered to you or 15 days after this notice was mailed to you by filing a claim of exemption and one copy to levying officer as provided in section 703.520 of the Code of Civil Procedure. If you do not claim an exemption, you may lose it and the property is subject to enforcement of a money judgment. If you wish to seek the advice of an attorney, you should do so immediately so that a claim of exemption can be filed on time.
3. You are not entitled to claim an exemption for property that is levied upon under a judgment for sale of property. This property is described in the writ of sale. You may, however, claim available exemptions for property levied upon to satisfy damages or costs remaining unpaid.
4. You may obtain the release of your property by paying the amount of a money judgment with interests and costs remaining unpaid.
5. If your property is levied upon under a writ of execution or to satisfy damages and costs under a writ of possession or sale, the property may be sold at an execution sale, perhaps at a price substantially below its a value. Notice of sale will be given to you. Notice of sale of real property (other than a leasehold estate with an unexpired term of less than two years) may not be given until at least 120 days after this notice is served on you. This grace period is intended to give you an opportunity to settle with the judgment creditor, to obtain a satisfactory buyer for the property, or to encourage other potential buyers to attend the execution sale.
6. All sales at an execution sale are final; there is no right of redemption.
So, what does this all mean?
Does this mean that Ilena Rosenthal will, fairly soon, have "quackbuster" Barrett and Polevoy "souvenirs" to sell on the internet? Will Polevoy, Canada's well known "pimple doctor" soon be relieved of his "pimple cream sample kit" or his box of disguises he wears when he attends health conventions?
Will Stephen Barrett's basement full of "files" suddenly be on the market?
Tim Bolen - Consumer Advocate