your honor my name is richard and gino and i represent attackers we're dealing here with a summary judgment motion that is granted as to malice one of the prerequisites in terms of a malicious prosecution case one of the things that i called your attention at the outset your honour's is if you would look at the district court's opinion the footnotes reference aspects of defense's motion for summary judgment it almost seems to be the opposite of what the rule is you're supposed to take the not on movement nonmoving party's position but here all the sites that i see in the district court's opinion are referencing the summary judgment motion like we didn't follow hundred some page response and exhibits to that no reference to that but let me point out what i think is critical ninety five when should knight was invited to come to the national conference of black women's meeting in seattle she didn't meet with him talked to him the meeting takes place at this conference with a room full of people so you basically have members of the national conference meeting was sure good night to ask them to clean up we're talking gangster rap and pretty much pretty timely right now in terms of what's happening so except for what occurred at that meeting in a group of people mrs tucker never room full of people who are listening to the phone calls and we have sure night on the other side saying what happens but without purpose of that meeting the purpose of that not just meeting at the  i mean all this kind of thing and he says you know i think i could do this he said but you know the money is coming in to do that all that s there is someone there from time warner to talk to but he never shows up there's no contract there isn't nothing but it seems like it's a put up because the next day what happens is i will not accept your contract for seventy five million dollars i will not i mean you know the thing here that you know you use the word circumstantial evidence you use the word intent this is what happens july august now two  these lawsuits came within like six or eight weeks of this meeting that they have and these lawsuits talk about extortion rico violation business does not have foundation we have a malicious prosecution action so even if we weren't and the issue here is not is not even that you know whether there was a basis this is a malice this is dismissed on a malice issue and and that's what really makes it kind of interesting is that when you are dealing with malice you're dealing with subjective intent which is almost always proved by circumstantial evidence you don't get people come around  th the matter of why was insufficient to establish now you know and what i understood him to be doing if you look at california law militias prosecution they freely have  tough on plate of the stick to pursue malicious prosecution that actions to their their burden and what i understand california and you can correct me if i'm wrong you know the fact there that the arm thing if you think about what the district and i will correct you shortly but if you think about the district court here it goes claim by claim by claim and even  disagree with what the district court has said because he's taken the facts and if you believe the defense in supporting the probable causation his malice determination which is the issue before you is really like a page and a half and let me summarize that for you very simply he said inner scope and death row and their group amassed forty eight banker boxes of material we asked for forty eight banker boxes of material the position was that all privilege so the magistra decides ok you say that's all privilege so you don't have to go to them but you then can't use it either and you can't use anything that would be in that so what the judge doesn't something very interesting you don't have that's forty eight boxes of material you can't prove malice if you read that page and a half is basically saying you don't have that forty eight boxes of material you can't prove mouse element relates to the subjective intent or purpose with which of them that acted in initiating the prior action the motive of the defendant must have been something other than that when they brought these two actions within six weeks after this meeting after reading yours that mrs tucker and the group were trying to eliminate gangster rap was their purpose to get money from her the purpose was to shut her up and that would be the jury determination and when they say that it's not limited to actual hostility or real we'll it can be anything other than the legitimate purpose of bringing someone to justice or get compensation we look at a burden of proof and you just have a preponderance burden prosecution action we go on and we say how do you prove malice malice is usually proved by circumstantial evidence although a lack of probable not support so it can't clearly but it can't do it by itself but if they're bringing actions that indicate that they're bringing for reasons other than they get compensation and they admit that they dismissed it three years after as br she didn't happen money so that they spent hundreds of thousands of millions of dollars not to get some money from the sister they also had an injunction claim if they wanted to shut her up when you get an injunction to basically tell her stop trying to interfere with our business they never sought to pursue the injunction for three years this thing was ongoing for three years they never court to seek to get an injunction they let out the people that could give them some compensation originally time warner planet records fugues these were defendants they leave out the people who could provide some compensation if they were looking for compensation so what we have here is lost we also have a situation in iran where when you look at my grief and you look at in the deposition there they referred to her as a charlatan she's been out to destroy interscope for three years i mean in fact the lawyer himself took eleven days of depositions twenty seven hundred pages of deposition just a mr starr i mean if you were basically saying we want to have you stop interfering with our business relationship with the twenty seven hundred pages levon days of depositions or i think of mrs reagan was the i can remember with the underlying case filed in federal court or  the underlying cases were filed in federal court and what we did is we initially brought in the eastern district of philadelphia which is where they were transferred out here it was all transferred out here so we've been going on here now for almost ten years because every time something's valjean years and years and we've been before you first i am a just how he reversed on damages now are back again on malice and what i'd like to point out your honor is that if you look at the case that everybody turns to when they talk about malicious prosecution it is the case of sheldon apple you start california supreme court citing its history this is a jury issue because it's based on circumstantial evidence it's a practice position that in bringing the lawsuits extortion conspiracy rico i've never seen it and i mean they sickly what i'm saying to you is that if their walk normally anything that requires it requires oral testimony has to go on the issue of malice alone because if you think about it it is subjective intent if credibility is through jury if there's a difference of opinion or difference of look at things you could never  lead you know somebody in my condition to conclude that there is a genuine tribal issue a fact with respect to the lawyers on one hand interscope on the other hand and  ok i'm going to try to answer what you're saying if i understand exactly what you're saying what i think of it is in little compartments one thousand nine hundred two nine hundred ninety five tucker which again they're trying to get someone to talk with in this six week period of time we have interscope the lawyers death row following what appears to be very similar interfere with your relationship so the lawyers then would have framed those two complaints they would have chosen among themselves the basis for those complaints the district judge would have they said you've been trying to get us out of business for three years you've gone to time warner you took out stock in time warner you went to the board of governors meeting at time warner time warner didn't vested itself of this fifty percent but she's doing something for three years they start the suits they choose a recall i mean i'm never going to tell a judge what to do but if you if you if you look at the cases are now says see you're coming away with they say malicious prosecutions aren't unfavored remedy but they  we have them because people should not be able to see you with our probable cause so although it's not a favorable cause of action on the other hand bringing suits against people without probable cause is not a favorable thing so if you the most important things are the things that i told you take a look at your complaints take a look at your causes of action and think the simplistic aspect of your remarks here today the focus of this appeal is on the district court's grant of summary judgment on the issue of malice although i believe that there were other alternative grounds on which summary judgment could have and should have been granted in favor of the friends but i want to speak to mr should night that if you don't go along with what i'm asking you to do i will go to the f b i and get them to start criminal prosecutions and that is your computer you know you've got a lot of testimony support the fact that it is the right of death row records and frankly the right of a substantial amount of the music buying public to produce and purchase that type of music and this case cannot turn on whether or not we approve of gangster rap i don't necessarily approve of the lyrics in these songs but i certainly have no problem defending the right of death row or in a scope to publish that music when we start getting into whether we whether these people should be granted summary judgment based on whether they like you like their music or not i think we're getting into very dangerous for us true but  you know his point well please answer my question don't give me your question the answer is no they don't want to because there is not in any evidence in the record of an improper question at a deposition there's not any evidence in the record of an improper document not why not because it is my job as an attorney to prosecute a case vigorously on behalf of my client i and therefore i am entitled as a attorney to act to ask for one because i i don't believe if you're if you're looking at the way a case is litigated first of all that says nothing about malice on behalf of the client second it says nothing on behalf of the about malice on behalf of the attorneys because the attorneys are under an obligation to vigorously litigate this case and if there's something wrong being done then the party on the other side can move the judge for a protective order for example now th attorneys made a decision to seek discovery from mr tucker before they brought up luminary injunction motion which is a common thing that attorneys do i have done it myself and they were frustrated because first mrs tucker wantonly failed to answer the complaint she there was a default judgment and against her and then when she finally answered the complaint she then refuse repeatedly to make the discovery and in fact was sanction by the district court notably the district court in this case that grant summary judgment was the same court that was supervising the underlying actions and again i think it is for us let me give you one for example on voluntary whether there's a favorable terminations he has actually ruled against the attorneys on that ground when i think there's a clear case law for example seven vs lead that sa cause for these claims but if you look at the complainants in the for it's the first item in the record i think it's pages two through sixteen the complaint filed by the high interest groups attorneys doesn't allege an actual breach they filed two claims saying that she's attempting to breach now they do in the heading of the case lumped together the first cause of action lumped together inducing breach of contract with interference with contract with interference with economic relations if you look at the actual allegations in the first cause of action they are not dependent on a an actual breach and if you look at the allegations of the third cause of action again they are saying she is attempting to induce  something to do with yes but i don't represent should night i don't represent death row i am here on behalf of the attorneys for death row mr tener i'm here on behalf of the attorneys for in scope the law firm of paul hastings mr thomas mr warner and i'm here on contract and the attorneys do at that point say look there's nothing the primary relief we were seeking here was doing was to stop the disruption of the contract since the contract is over now that's our primary relief it's gone they asked the talkers if they would consent to a voluntary dismissal the tuckers refused therefore it was litigated and in those three months it was litigated i submit your honor that the assertion that they waited too long in the lane i just not borne out by the facts and it's like all the number of assertions that we get in this case there's they are research and they are attorneys if he digs it but there's no evidence in the record so and that fundamentally is that there  no circumstantial evidence in this case that can supply the muar that is required beyond lack of probable cause assuming those determinations were correct that would sustain a reversal of the district court's grant use those acted as evidence of malice one would think at least that at the outset that one would have to sign an absence of probable cause and then one found on the vehicle on no there hasn't your honor in fact summary judgment was granted against the court there's an absence of case law on summary judgment on the issue of malice i think one of the reasons that is so is because obviously malice of the state law cause of action most was prosecution cases are brought in state court and there is a is a question for the jury you've got to find the circumstances written well but there are many cases there are many issues that are questions for the jury but you shall have that federal law that's rule fifty six says if there is the and anderson versus liberty lobby and summary judgment and that's exactly what happened here federal fifty six andersen versus liberty lobby and sell a tax authorized required that the appellant come forward with some evidence of malice and they didn't one i don't believe that you can impute the malice of the client to the attorneys there's case law against cited in our papers that  just that i believe the leading case is rogers versus panetta right on point likewise with respect to the favorable to know for a bill terminations again the fact that the client decides that interscope decides to dismiss this action because the contract is gone and there's no need to preserve it that lack of free will terminations to mean there's a there really is a question of fact there and i don't believe there their law firm paul hastings and so i think summary judgment should have been granted on that ground alone so there are two elements with respect to the attorney's malice of the client can't be imputed to them and the fact that the client's dismissed decide to dismiss a lawsuit can't be imputed to gangsta rap lyrics and it cannot permissibly do that i may sympathize with you i mean agree with you one hundred percent about gangsta rap lyrics but i don't believe that the outcome of trials and whether there's been malicious prosecution should be determined with that smoke in the background and that's why in some respects it was imperative that the district court exercises responsibility and grant summary judgment in this case where it was required your an m after you are worse then bill clinton and bob dole if that isn't directing something specifically at her second time this is started in august and he's right right off the back they wanted all these depositions they wanted all these things and then they did nothing i got into this case in late one nine hundred ninety seven two years later i said this case has been going on for two years it needs to get to trial i want to get to trial you have my letter there were i've quoted that and thirty these lawyers supposedly who are working hard for their clients they're referring to