Judge delays Nunes suit after McClatchy lawyer’s home heavily damaged in wildfire

A Virginia judge postponed a hearing Monday on California Republican Rep. Devin Nunes’ lawsuit against the McClatchy Company, siding with a defense lawyer affected by the devastating California wildfires.

Judge Cheryl V. Higgins scolded Nunes’ attorney Steven S. Biss for opposing a request last Friday to delay the proceeding because defense attorney Theodore J. Boutrous’ home was heavily damaged by the Getty Fire.

In a handwritten note, Higgins said, “The plaintiff did not file a response until less than 2 hours before the hearing after being contacted by the court.”

Nunes is suing McClatchy Company in Virginia’s Circuit Court for the County of Albemarle, alleging that The Fresno Bee, his hometown paper, defamed him. Sacramento-based McClatchy counters that the venue for the case should be California where the company and Nunes’ congressional district are based.

California has stricter laws to discourage frivolous lawsuits than does Virginia, and the venue argument was supposed to be heard on Monday. Nunes seeks $150 million in damages.

On Friday, Boutrous, the lead defense lawyer for McClatchy, reached out to Biss seeking an emergency postponement because of the fires.

“Steven – our house has been damaged in the wildfires and we have been on mandatory evacuation until just now,” Boutrous wrote midday on Friday in Los Angeles. “I am going to ask the judge to postpone Monday’s hearing to deal with this. Will you consent?”

After no response, another attorney representing McClatchy, Michael H. Dore, reached out Saturday afternoon to Biss.

“This should be pretty simple. We would appreciate the professional courtesy of a response and your consent to postpone Monday’s hearing,” wrote Dore, citing the wildfires and Virginia’s long-standing Principles of Professionalism.

A few hours later, Biss responded to Dore.

“I am very concerned and suspicious about the request to continue,” the counsel for Nunes wrote in an email exchange introduced as evidence Monday morning.

Citing several grievances, including what he considered a hostile tweet from Boutrous, Biss effectively said wildfires or not, he wasn’t going to extend professional courtesy and consent to a delay.

“I spent all week preparing for the hearing,” wrote Biss. “While I am sympathetic to the victims of the California wildfires, McClatchy has at least four other attorneys who are counsel-of-record and well-qualified to handle the hearing.”

Biss did not respond to requests for comment. McClatchy issued a statement Monday afternoon welcoming the judge’s decision.

“We’re grateful that the Circuit Court for the County of Albemarle agreed to postpone the hearing today in light of McClatchy attorney Theodore J. Boutrous’ inability to travel to Charlottesville as a result of his family’s displacement due to the Getty Fire,” McClatchy spokesperson Jeanne Segal said in a statement.

“While we understand that a Virginia-based lawyer may not fully comprehend the magnitude of the California wildfires, we want to believe that Congressman Nunes does. It is stunning that Nunes would require a displaced fellow Californian – a fire victim – to come to Virginia despite the wildfires. Nunes’ lawyer showed a lack of responsiveness and human empathy to McClatchy’s legal counsel, one of the thousands of victims of California’s wildfires,” the statement said.

The statement also called on Nunes to abandon his suit.

“Devin Nunes was elected to represent Californians in Congress. The congressman’s Virginia lawyer has made it very clear that the California congressman is abusing the U.S. legal system to harass a California-based news company, forcing it to spend money to defend itself and its First Amendment rights,” Segal said. “We repeat our call on Devin Nunes to withdraw this frivolous lawsuit.”

Nunes brought suit in April 2019 against McClatchy after The Fresno Bee ran a story, in May 2018, about a lawsuit filed against a winery in which Nunes had a limited partnership. The lawsuit alleged executives had cocaine and prostitutes at a party on board a yacht, although Nunes, a Republican from Tulare and part of GOP congressional leadership, was not accused of being involved in the illicit activities.

The lawsuit against McClatchy is but one of four active lawsuits brought by Nunes, all alleging defamation and conspiracies against him. The one against McClatchy was the second one he filed this year, and three of the four were filed in Virginia.

The first was against Twitter, two parody accounts known as Devin Nunes’ Cow and Devin Nunes’ Mom, and Republican political strategist Liz Mair. The defendants in that case also moved to dismiss the lawsuit based on improper venue, but a judge in Henrico County, Virginia ruled against them in October, allowing Nunes’ case to go forward. Defendants in that case have said their intentions are to continue fighting the lawsuit based on its merits.

The other Virginia case is against political research company Fusion GPS and progressive group Campaign for Accountability. Fusion GPS is the firm that in 2016 compiled what has come to be known as the “Trump dossier” – a collection of reports that combined alleged that Russia interfered in U.S. elections in 2016 to benefit Trump. Neither Fusion GPS nor the advocacy group is based in Virginia.

In his most recent lawsuit, Nunes alleged defamation before an Iowa court, suggesting that journalist Ryan Lizza and Esquire magazine defamed him in a 2018 story on how the Nunes’ family relocated its dairy operations to Iowa.

Updates with McClatchy statement.

Hall reported from Washington, D.C.

Investigative reporter Kevin G. Hall shared the 2017 Pulitzer Prize for the Panama Papers. He was a 2010 Pulitzer finalist for reporting on the U.S. financial crisis and won of the 2004 Sigma Delta Chi for best foreign correspondence for his series on modern-day slavery in Brazil. He is past president of the Society of American Business Editors and Writers.
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