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Court of Appeal:
Trial Lawyer Gerry Spence, 93, Won’t Get Quick Trial
Presiding Justice Rubin Says Facts Warrant Awaiting Resolution of Federal Action in Wyoming
By a MetNews Staff Writer
The Court of Appeal for this district has spurned a plea by high-profile lawyer Gerry Spence, who is 93 and in failing health, for an order to speed up a civil trial in Los Angeles Superior Court in which he’s the plaintiff, rather than awaiting the outcome of a federal proceeding in Wyoming, so that, if there is to be a victory in the case, he’ll still be alive to enjoy it.
In an unpublished opinion filed Monday, Presiding Justice Laurence D. Rubin of Div. Five pointed out that “the Wyoming litigation is much closer to resolution than is the California action.” He noted that trial had been scheduled in that action for Aug. 9 of last year, but said that Spence and his co-defendants/plaintiffs—which include powerhouse Antelope Valley trial attorney R. Rex Parris—successfully moved for a continuance.
“No trial has been scheduled in the California action,” Rubin related, commenting:
“If Spence were to succeed in Wyoming he would likely receive all or substantially all the relief he could achieve in California, and faster.”
Parris said yesterday that after Spence filed his action in Los Angeles, the plaintiff/counter-defendants amended their pleadings in the U.S. District Court for the District of Wyoming “which vacated the trial date” there.
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Preference Negated
Spence argued that because Los Angeles Superior Court Judge Teresa A. Beaudet granted him a preference under Code of Civil Procedure §36 based on his age and medical condition, that foreclosed her inconsistent order staying the action here pending resolution of the action in Wyoming. Rubin said:
“To the extent that Spence argues that the trial court’s order granting preference requires the denial of a stay, Spence has not provided relevant authority for that point, and we reject it.”
Parris commented:
“It is ironic that the law unequivocally requires cases like Mr. Spence’s case to be tried in 120 days, but years have been allowed to go by while the defendants engage in procedural sleights of hand. Barring the courthouse doors waiting for an elderly plaintiff to die is just a continuation of the ageism and elder abuse inflicted upon one of America’s greatest trial lawyers.”
He asserted that the “financial elder abuse alleged occurred in California and should be decided in California,” lamenting that Div. Five’s opinion “virtually guarantees that a 93-year-old distinguished lawyer will unlikely ever get his day in court.”
Intellectual Property Rights
The litigation involves intellectual property rights. Among matters in dispute is the ownership of a mark comprised of a cloud with a lightning bolt.
Spence, whose foundation owns Thunderhead Ranch in Wyoming, used the mark as a brand on his cattle and, since Dec. 2, 1965, that brand has been registered with the state. In 1994, Spence founded the Trial Lawyers College (“TLC”), a nonprofit Wyoming corporation, headquartered on his ranch, and which adopted the Thunderhead brand as its logo.
In 2012, TLC received registration with the U.S. Patent Office of a trademark on the brand, as well as on the words, “TRIAL LAWYERS COLLEGE.”
A schism occurred within the organization, and Spence booted TLC off the property it had been leasing. Spence formed “Gerry Spence’s Trial Lawyers College at Thunderhead Ranch,” utilizing the brand. TLC continued in operations, using Spence’s name and likeness.
TLC obtained a preliminary injunction barring Spence and his co-defendants, including Parris, from using the brand or the word, “Trial Lawyers College.”
On Nov. 5, 2020, Spence brought his Los Angeles Superior Court action alleging fraud, conversion, breach of fiduciary duty, negligent misrepresentation, intentional infliction of emotional distress, and elder financial abuse.
Nonidentical Parties, Issues
Rubin acknowledged that the parties in the federal action in Wyoming and in the Superior Court suit here are not identical, nor are the issues precisely the same. But, he said:
“Without a halt to the present action, ‘overlapping’ litigation would be pending in California and in the federal court in Wyoming. That set of affairs is ripe for ‘unseemly conflicts’ or inconsistent judgments….Because of the advanced stage of the proceedings in the Wyoming District Court, the rights of the parties will most expeditiously be determined by that court.”
Spence argued that California is the proper forum to resolve the disputes because he is a resident here, as is one of the defendants, and that no party resides in Wyoming. Rubin responded that Spence did not back up his contention that he is a California domiciliary—saying that Parris’s declaration, “based on information and belief,” that his client resides in Santa Barbara does not suffice.
(Spence’s law firm’s website recites that Spence “lives in Jackson Hole, Wyoming.” However, a check of public records shows that he has a residence on Romero Canyon Road in Santa Barbara.)
Rubin added that the residency here of one defendant is “relevant to a forum non conveniens analysis” but “is not dispositive.” He said that “all of the parties have substantial connection with the state of Wyoming, where the ranch and college were located.”
Attorney’s Distinctions
Spence has the distinction of never having lost a criminal case as a prosecutor or defense lawyer and not lost a civil case, as a lawyer in the case, since 1969. His firm’s website says:
“He has tried and won many nationally known cases, including the Karen Silkwood case (a movie was made of the case with Meryl Streep and Cher,); the defense of Randy Weaver at Ruby Ridge; the defense of Imelda Marcos; the case against ‘Penthouse Magazine’ for Miss Wyoming; and the murder defenses of Ed Cantrell and Sandy Jones.”
Rubin termed him “a nationally recognized trial attorney.”
The case is Spence v. Clary, B312281.
Parris and his associates Alexander R. Wheeler and Susan S. Baker acted for Spence. Attorneys Kimberly D. Howatt and Allison Jones of Gordon & Rees represented the defendants.
Spence will seek review in the California Supreme Court, Parris related.
The Tenth Circuit Court of Appeals on Jan. 27 held that the District Court did not err in issuing a preliminary injunction but went too far in ordering that two sculptures at the Thunderhead Ranch, which include the ranch’s brand, be removed as infringements on the trial college’s logo.
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