Opposition Brief — Marino v. Kenoff & Machtinger

- 2 ee

SEP 26 2002

No. 92-308

OFFICE OF THE CLERK

IN THE

Supreme Court of the Hnited States

NICK MARINO,

Petitioner,

vs.

KENOFF & MACHTINGER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JONATHAN B. COLE

Counsel of Record

NEMECEK & COLE

15260 Ventura Boulevard, Suite 920

Sherman Oaks, California 91403

(818) 788-9500

Counsel for Respondent

KENOFF & MACHTINGER

Lawyers Brief Service ¢ Appellate Brief Printers * (213) 613-1013 * (949) 720-1510

No. 02-308

IN THE

Supreme Court of the Wnited States

NICK MARINO,

Petitioner,

VS.

KENOFF & MACHTINGER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JONATHAN B. COLE

Counsel of Record

NEMECEK & COLE

15260 Ventura Boulevard, Suite 920

Sherman Oaks, California 91403

(818) 788-9500

Counsel for Respondent

KENOFF & MACHTINGER

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PARTIES TO THE PROCEEDING

Petitioner is Nick Marino, an individual member of the

Writers Guild of America.

‘Respondent is Kenoff & Machtinger, a California

partnership.

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TABLE OF CONTENTS

Page

pit Fe) rere sry Seba yaar yee" l

EPL RSEETE GOR PEM GAAMED 6c vcesvecesbascucswn 1

A. The 1990 WGA Credit Arbitration ......... 1

B. The WGA Credit Lawsuit, the Legal

Malpractice Lawsuit and Summary

gS re rs ee ee err ere 2

C. Summary Judgment No.2 ............... 2

ie Poe reer 3

E. Marino’s Appeal and Subsequent

PU yu 0:6 0a 55 0 a RR eS 3

Br Pee ere ree ter or eT ere 4

A. Marino’s Malpractice Lawsuit, Which

He Chose To File In State Court, Is

Not A Claim Arising Under Section

301(a) Of The LMRA And His Claim

That The Trial Court Acted In Excess

Of Its Subject Matter Jurisdiction Is

EE hie Wa od ah eee eens 4

B. The California Judgment Is Consistent

With, And Is Not In Conflict With,

The Ninth Circuit Decision ............... 7

Se rr rr reer ee 10

-iii-

TABLE OF AUTHORITIES

Cases

Caterpillar, Inc. v. Williams,

482 U.S. 386, 107 S.Ct. 2425 (1987) .....

Ferguson v. WGA,

226 Cal.App.3d 1382 (1991) .........0.

Gulf Offshore Co. v. Mobil Oil Corp.,

453 U.S. 473, 101 S.Ct. 2870 (1981) .....

Moncharsh v. Heily & Blase,

3 CoG 1 CISGZ) «oc cee ceerensevssss

Pan Am. Petroleum Corp. v. Superior Court,

366 U.S. 656, 81 S.Ct. 1303 (1961) ......

Pratt v. Paris Gas Light & Coke Co.,

168 U.S. 155, 18 S.Ct. 62 (1897) ........

Statutes

Labor Management Relations Act (““LMRA”)

I POE has er ew hc eee eenawyens

Page

l

INTRODUCTION

The Petition for Writ of Certiorari (the “Petition’’) filed by

Nick Marino (“Marino”), in Pro Se, should be summarily

denied because:

(a) The California Court of Appeal neither decided an

important question of federal law that has not been, but should

be, settled by this Court nor decided an important question of

federal law in a way that conflicts with the relevant decisions

of this Court.'

(b) The California Supreme Court did not decide an

important federal question in conflict with the Ninth Circuit’s

decision in Marino v. Writers Guild of America, East, Inc.,

992 F. 2d 1480 (1993) (the “Ninth Circuit Decision”).

STATEMENT OF THE CASE

A. The 1990 WGA Credit Arbitration

Marino claims that he was entitled to receive writing

credit on the motion picture entitled “The Godfather: Part III”

(“GF III’). In 1990, Marino was a party to a credit arbitration

before the Writer’s Guild of America, West, Inc. (the “WGA”)

concerning GF III (the “WGA Credit Arbitration”). WGA

credit arbitrations consist of three phases. In Phase 1, written

materials are assembled for the Arbiters who make the credit

decision at Phase 2. On November 5, 1990, the Arbiters made

their decision that Francis Ford Coppola and Mario Puzo

should receive writing credit. Marino appealed the Arbiters

decision at Phase 3, and after further consideration by one of

the Arbiters regarding a certain literary material, Marino lost.

' After the Court of Appeal decision, Marino filed a Petition for

Review with the California Supreme Court. The California Supreme

Court denied Marino's Petition for Review.

2

B. The WGA Credit Lawsuit, the Legal

Malpractice Lawsuit and Summary

Judgment No. 1

On December 12, 1990, Marino filed a lawsuit against the

WGA seeking a declaration awarding him a writing credit on

GF III (the “WGA Credit Lawsuit”). The WGA removed the

WGA Credit Lawsuit to federal court and then filed a motion

for summary judgment which was granted against Marino.

Marino then appealed to the Ninth Circuit. The Ninth

Circuit affirmed the grant of summary judgment in favor of the

WGA and against Marino.

On July 22, 1994, Marino sued Kenoff & Machtinger

(“K&M”) for legal malpractice (the “Malpractice Lawsuit’’) in

the Los Angeles Superior Court. Marino decided to file the

Malpractice Lawsuit in state court. Marino then proceeded to

litigate the Malpractice Lawsuit in state court for over eight

years.”

In August of 1997, K&M filed a motion for summary

judgment in the Malpractice Lawsuit (“SJ No. 1”). SJ No. 1

was granted in favor of K&M and against Marino. Marino

appealed. The California Court of Appeal affirmed, in part,

and reversed, in part.

C. Summary Judgment No. 2

On December 8, 1999, after remand, K&M filed another

motion for summary judgment (“SJ No. 2”). In January of

2000, the trial court granted SJ No. 2, in part, and denied it,

in part. The trial court ruled that there was a triable issue as

to the purpose and scope of a Phase 1 Hearing in the WGA

Credit Arbitration as that term is defined in the Credits Manual

2 K&M is the sole remaining Defendant in the Legal Malpractice

Lawsuit.

3

as approved by the WGA and its membership (the “Phase 1

Hearing Issue’’).

D. The 5-Day Bench Trial

The Los Angeles Superior Court conducted a 5-day bench

trial concerning the Phase 1 Hearing Issue. The court heard

testimony from representatives of the WGA and from outside

experts concerning the interpretation of the Credits Manual

and the nature, scope, purpose and effect of a Phase 1

Hearing. On April 26, 2000, the trial court issued its written

decision and concluded that the credit determination of who

was the genesis of creative ideas found in the final shooting

script is a Phase 2 function, not a Phase 1 function. Further,

the trial court reasoned that it would not make sense (or

promote the stated goal of a swift determination of credit) to

conduct a credit determination twice (once at Phase 1 and

again at Phase 2). Judgment was entered against Marino on

August 9, 2000. Marino filed a Notice of Appeal.

E. Marino’s Appeal and Subsequent Petitions

On December 10, 2001, the California Court of Appeal

affirmed the trial court’s ruling. See Appendix A to Marino’s

Petition. On December 24, 2001, Marino filed a Petition for

Rehearing before the Court of Appeal. On January 7, 2002,

the Petition for Rehearing was denied. On January 22, 2002,

Marino filed a Petition for Review before the California

Supreme Court. On March 13, 2002, the Petition for Review

was denied. The instant Petition before this Court followed.

4

ARGUMENT

A. Marino’s Malpractice Lawsuit, Which He

Chose To File In State Court, Is Not A Claim

Arising Under Section 301(a) Of The LMRA

And His Claim That The Trial Court Acted

In Excess Of Its Subject Matter Jurisdiction

Is Without Merit

(1) Marino makes an inconsistent argument. In his

Petition, at pages 11-12, Marino argues that the trial court

acted in excess of its jurisdiction by interpreting a collective

bargaining agreement (“CBA”). However, Marino himself, on

page 12 of his Petition, quotes from the Ninth Circuit Decision

in which the Ninth Circuit held that “[t]he procedures for

arbitration of credit disputes are set out in WGA’s ‘Credits

Manual.’ They are not part of the collective bargaining

agreement, but are approved by WGA’s board of directors

and by vote of its membership.” The Ninth Circuit drew a

distinction between the general rules for determining credit,

which are part of a CBA, and the arbitration procedures of

credit disputes set forth in the Credits Manual, which are not

part of aCBA. Thus, Marino’s argument that the trial court

exceeded its jurisdiction when it supposedly interpreted a

CBA is devoid of merit, since the trial court interpreted the

Credits Manual, not a CBA.

(2) Even if this case involved the interpretation of aCBA,

instead of the interpretation of the Credits Manual, federal

preemption does not apply where the interpretation of a CBA

arises in connection with the defense of a state law claim. It is

well settled that when a defense to a state law claim is based

on the terms of a CBA, a state court is permitted to interpret

that agreement in order to adjudicate the defenses raised in the

state law claim. Caterpillar, Inc. v. Williams, 482 U.S. 386,

5

398-399, 107 S.Ct. 2425, 2433 (1987). As this Court has

heretofore decided:

“It is true that when a defense to a state

claim is based on the terms of a collective-

bargaining agreement, the state court will

have to interpret that agreement to decide

whether the state claim survives. But the

presence of a federal question, even a

Section 301 question, in a defensive

argument does not overcome the

paramount policies embodied in the well-

pleaded complaint rule—that the plaintiff

is the master of the complaint ... and that

the plaintiff may, by eschewing claims

based on federal law, choose to have the

cause heard in state court.” (Emphasis

added.) Caterpillar v. Williams, 482 U.S.

at 398-399, 107 S.Ct. at 2433.

Pratt v. Paris Gas Light & Coke Co., 168 U.S. 155, 18 S.Ct.

62 (1897) [state court not deprived of power to determine

questions arising under patent laws]. Gulf Offshore Co. v.

Mobil Oil Corp., 453 U.S. 473, 483-84, n,12, 101 S.Ct. 2870

(1981) [this Court holds that “exclusive federal jurisdiction

will not prevent a state court from deciding a federal question

collaterally even if it would not have subject matter over a

case raising the question”]. Pan Am. Petroleum Corp. v.

Superior Court, 366 U.S. 656, 663, 81 S.Ct. 1303 (1961)

{approving state court adjudication of defense based on

Natural Gas Act].

(3) Marino’s case is a garden variety tort claim (a legal

malpractice action) arising under state law. It does not raise

a federal question. Moreover, it is not an action for violation

of a contract between an employer and a labor organization

6

and therefore Section 301(a) of the Labor Management

Relations Act (“LMRA”) does not even apply.

(4) Marino chose the state court forum. Marino decided

to file the Malpractice Lawsuit in state court and he litigated

his claim in state court for over 8 years. Now that Marino has

received adverse rulings in state court, he raises objections to

the jurisdiction of the very court that he chose, the Los

Angeles Superior Court. Moreover, Marino fully participated

in the trial, wherein he called expert witnesses to testify as to

their interpretations of the Credits Manual. At no time did

Marino assert before the trial court or before the Court of

Appeal that those courts were without subject matter

jurisdiction to interpret the relevant provisions of the Credits

Manual. Marino’s assertion now, after losing in the trial court

and the California Court of Appeal, that the trial court

engaged in an interpretive exercise reserved for the federal

courts under Section 301 is disingenuous and devoid of merit.

Marino should be estopped to even make such an argument at

this point in time.

(5) Marino’s malpractice claim does not turn on the

interpretation of a CBA. His complaint simply alleges that

K&M breached its duty of care in providing legal services to

Marino by, among other things, failing to request a Phase 1

Hearing, thereby causing Marino to lose screenwriting credit.

In its defense, K&M argued that its failure to request a Phase

1 Hearing could not have caused Marino’s alleged damages.

This defensive argument required the trial court to interpret

the Credits Manual with respect to the scope and purpose of

a Phase 1 Hearing. After a five day trial, the trial court ruled

that the failure to request a Phase 1 Hearing could not possibly

have caused Marino any damages. The California Court of

Appeal affirmed. The California Supreme Court then denied

review.

7

B. TheCalifornia Judgment Is Consistent With,

And Is Not In Conflict With, The Ninth

Circuit Decision

(1) The Ninth Circuit Decision and the trial court decision

(later affirmed by the California Court of Appeal) are

consistent with each other. The Ninth Circuit Decision held

that the WGA Credits Arbitration system is fundamentally fair

because it contains various procedural safeguards. Marino, at

1484-1485. The Ninth Circuit Decision provides that a Phase

1 Hearing allows for confrontation and other evidentiary

rights. Marino, at 1485.° However, the Ninth Circuit never

reached the issue of what is proper Phase 1 Hearing subject

matter. That issue was not before the Ninth Circuit in the

Ninth Circuit Decision. In contrast, in the Malpractice

Lawsuit, the trial court had to determine what is the proper

subject matter for a Phase 1 Hearing. Therefore, the two

decisions cannot possibly be in conflict because each addresses

different issues.

(2) Both the Ninth Circuit and the trial court agree that

a Phase 1 Hearing allows for due process rights. However, as

the trial court ruled (and as affirmed by the California Court

of Appeal), a Phase 1 Hearing can only be conducted as to

certain issues. As the trial court ruled, a Phase 1 Hearing is

proper to determine who “put pen to paper” so as to make

sure that the correct literary materials are sent to the Arbiters

at Phase 2. It is the Phase 2 Arbiters who then determine

which screenwriters contributed which creative ideas and

dialogue for the purposes of determining credit. In short, and

as the trial court so ruled and as the Court of Appeal affirmed,

> As the Ninth Circuit stated: “The former [a Phase 1 Hearing], of

course, provides for all of the usual confrontation and evidentiary rights.”

The Ninth Circuit Decision contains no other reference to the nature,

scope or purpose of a Phase 1 Hearing.

8

the credit determination function takes place at Phase 2, not

at Phase 1.

(3) Marino argues, in his Petition at page 6, that after

hearing evidence from many witnesses, including experts, the

trial court issued its findings that the CBA procedures

described by the Ninth Circuit did not, in fact, exist. This is a

misstatement by Marino. The trial court never made any such

finding. In fact, after conducting a bench trial on the Phase 1

Hearing Issue, the trial court found that a full Phase 1 Hearing

is available to resolve disputes as to the authenticity,

identification, sequence, authorship or completeness of literary

materials to be submitted to the Phase 2 Arbiters for

consideration. The trial court findings complement and

clarify the Ninth Circuit description of a Phase 1 Hearing and

confirm the plain meaning of the Ninth Circuit’s ruling with

respect to the arbitration procedures described in the Ninth

Circuit Decision. As such, the trial court judgment in this

case is not, in any way, in conflict with the Ninth Circuit

Decision.

(4) Marino argued before the trial court that the WGA

Credit Arbitration was unfair because he never knew the

identities of the Arbiters who made the credit decision at

Phase 2 (the “Anonymity of the Arbiters”). The trial court

rejected this argument by Marino and granted K&M’s motion

for summary judgment on this issue. The Court of Appeal

affirmed. This decision is likewise consistent with the Ninth

Circuit Decision.

(5) In the Ninth Circuit Decision, the Court upheld the

procedures of the WGA Credit Arbitration as fair and

reasonable, but with one exception. The one exception was

the claim of arbiter bias. The Ninth Circuit did not reach the

issue of arbiter bias because those claims were not raised by

Marino until after the Arbiters had ruled against him.

Inasmuch as the Ninth Circuit simply did not reach the

Anonymity of the Arbiters issue, then, at some point in the

9

Malpractice Lawsuit, the trial court had to reach that issue.

The trial court did reach that issue, and did grant summary

judgment as to that issue, because it was bound to follow

Ferguson v. WGA, 226 Cal.App.3d 1382, 1389-1390 (1991)

in which the California Court of Appeal ruled that the

Anonymity of the Arbiters was a fair and reasonable procedure

supported by important policy considerations. Thus, even if

Marino had objected to the Anonymity of the Arbiters prior to

the commencement of the arbitration (and it is undisputed that

he made no such objection), the objection would have made

no difference because the WGA arbitration procedure based

on the Anonymity of the Arbiters had already been held to be

proper.

(6) In addition, in Ferguson, the California Court of

Appeal also held that claims relating to a WGA Credit

Arbitration are nonjusticiable and are not subject to judicial

review. Similarly, under California law in general, arbitrations

are not subject to judicial review. Moncharsh v. Heily &

Blase, 3 Cal.4th 1 (1992). Marino’s real goal in this case is to

circumvent Moncharsh and the finality of the WGA Credit

Arbitration system, which is binding on all WGA members

(like Marino).

10

CONCLUSION

K&M respectfully requests that the Petition be denied.

Dated: September 27, 2002.

Respectfully submitted,

NEMECEK & COLE

JONATHAN B. COLE

Counsel of Record

Counsel for Respondent

KENOFF & MACHTINGER