(As a preface, this may seem just like a “reveling in a boorish bully getting his comeuppance” story. It’s much much more than that, and has real and significant implications. Substantial follow-ups will be posted over the next week. — GAD)
Dan Chmielewski, publisher and editor of, and possibly sole writer and commenter at, The Liberal OC blog sued Mark Newgent, 2020 Irvine City Council candidate and a retired Army Captain after 20 years of service starting at age 17, for using “Retired Army Officer” as his ballot designation in that race. While rules limiting the use of the appellation “retired” in ballot statements exist, they do not apply to someone getting most of his income from his military retirement pension. Chmielewski — or, ahem, whoever induced him to file the lawsuit — should have known this is they had actually read the Elections Code, as I did in depth when my client Mark Daniels sued Lenore Albert years ago when she tried to use the designation of “attorney” at a time when she was suspended from the practice of law. (I guess that I made it look too easy to win one of those suits; it’s much easier if the facts and the law are with you.) As a result, Chmielewski has now been required to pay the fees of Newgent’s lawyers at the Rolling Hills Estates law firm of Jeffrey Lewis a pretty substantial $18,000.
I had planned on covering this development in a post on Monday — but that was foiled when Michael D. Fox, husband of former Irvine councilmember Melissa Fox, beat me to the punch on Saturday night. So I’m porting over material from the Facebook post to present it here, in more permanent and accessible forum, to befit it’s public significance.
Fox’s Original Post, with Comments
Fox introduced his post about Chmielewski, who has spent literally half a decade or so attacking him and his wife in his poison-pen missives, thusly:
“Nice to see buffoon blogger and bully Dan Chmielewski being ordered to pay thousands of dollars in damages.”
Fox added, seemingly at the prodding of Gabriel San Roman (was everybody working on this story?), a bit from Jeffrey Lewis’s website posted prior to the above development:
Mark Newgent, a candidate running for Irvine City Council in the November 2020 election has submitted papers requesting that he be described on the ballot as “Retired Army Captain.” The designation is identical to what he has used in a prior election. The Irvine City Clerk, the official for the election, has approved this description. An Orange County blogger filed a lawsuit against the Irvine City Clerk, Molly Perry, accusing her of negligently allowing Mr. Newgent’s designation of “Retired Army Captain” to be included in election materials. But after twenty years of decorated service in the military and retirement with an honorable discharge, this designation of “Retired Army Captain” is wholly accurate. He now spends his time caring for his children and volunteering in the community.
Mark Newgent, with the help of Jeff Lewis Law, responded to the blogger’s lawsuit by opposing the lawsuit with declarations by Mark Newgent outlining his decorated military service. The City Clerk also filed an opposition and declaration describing the appropriate procedures followed by the City of Irvine in approving the designation. Jeff Lewis Law also filed a special motion to strike pursuant to California’s anti-SLAPP law. Per the anti-SLAPP motion, this blogger is attempting to stifle political speech by telling the Irvine City Clerk how the ballot must appear.
A hearing was held on Thursday, September 3, 2020, on the merits of the petition, and the blogger’s arguments were denied. Judge Nathan Scott found that the ballot designation was appropriate and the Irvine City Clerk appropriately did her job of vetting the ballot designation. An anti-SLAPP motion, to determine whether the petitioner’s lawsuit was filed based on activity protected by the First Amendment is scheduled for hearing in December. The blogger faces the prospect of paying Mark Newgent’s attorney’s fees if the anti-SLAPP motion is granted.
Mark Newgent is represented by attorneys Jeff Lewis and Sean Rotstan of Jeff Lewis Law, a First Amendment and appellate law firm, and Irvine general practitioner attorney Christopher Gonzales.
“Elections are all too frequently plagued by excessive expenses not related to the candidate’s political campaign or positions,” says Jeff Lewis. “Regardless of political party or platform, one such tactic that candidates too often resort to is needlessly suing their opponents over ballot descriptions, claiming such descriptions to be misleading even when they are truthful.”
I take a more positive view towards these suits than Lewis does — candidates do often misrepresent themselves in their ballot statements, and they should not be able to get away with it because it perverts the electoral system — but I’d always want to have my facts and law in order before such a challenge. Whether Chmielewski just went off half-cocked on his own (not an unthinkable scenario) or someone else importuned hum to do so with what they knew or should have known was a weak case, I do not know., but this result poses a striking lesson for him.
Much Commentary Ensues
Here’s just a sampling of reactions to Fox’s post:
Righteous pissedness: Anaheim Democratic Club President Jorge Gavino noted the Chmieleski “was harassing me a few weeks ago for calling out his BS.”
Comical understatement: Former Huntington Beach Councilmember Joe Shaw, a former writer for the blog when Chris Prevatt was running it, sayeth: “He’s not a nice person.” Vern Nelson and Jeff LeTourneau had the same reaction about the understatement.
Remember the racism!: Matt Mirmak had this to say:
“You forgot to add racist to his description. Especially after he was spreading racial tropes about Asian women and massage parlors after the tragic murders in Atlanta,” which led to an interchange with Rachel Kirsten So:
- Rachel: I remember so well. I used to know the guy – never liked him (nor the people he hung out with).
- Matt: So He tried whitesplaining racism towards Asians to someone and accused them of “reverse racism”. As we all know, “reverse racism” does not exist because last time I checked Asians do not have the ability to oppress whites through the power of the law. But white people sure as hell showed their political power in passing the 1882 Chinese Exclusion Act which prevented an entire race of people from entering the United States. When I need a dictionary definition of mediocre white guy, Chemical Lewinsky should be the visual definition.
Paul Lucas and Howard Roll were glad to see the comeuppance, though Roll is not a fan of Newgent. (I’ve always liked the guy; doesn’t mean I’d vote for him, but does mean that I think Republicans and right-leaning independents should choose him over their usual fare. He’s honest and public-minded.
One Taste of What’s to Come
Here’s something the Mike Fox perhaps didn’t have — and which will open the discussion tomorrow.
Chad Morgan, readers with long memories may recall, was the Republican lawyer who worked with me when I represented CATER who was brought in, with my assent, by Cynthia Ward to deal with our California Public Records Act claim against Anaheim given his ample expertise in that area. He’s a little of a Tait Republican in that he’s anti-corruption, but he’s also been a top aide (I forget the exact capacity) to former Assembly member Allan Mansoor, who was seriously conservative, and my sense is that he’s been sort of a insider and legal fixer for the OC Republican Party.
First, how the hell did Dan Chmielewski get hooked up with a deep-in-the-party Republican attorney representing him in this case? There are Democratic election attorneys around (other than me, or course) — Mark Rosen being a good example — so why seek out Morgan, of all the possibilities?
Second, Morgan mentions a inclination to accept the offer to reduce the award from $18,008.24 to $13,208.24. Obviously, we now know that, more than six months after the date of this letter, Rosen had to tender a check for the full $18,000 — meaning that — despite Morgan’s acknowledgement that the award was mandatory — Chmielewski somehow must not have cooperated with the order. (Looking at the docket, I can see that the time for any appeal has passed.) What the hell happened here? It seems like a safe bet that, whatever it was, it led to the transfer of the case from Morgan to Rosen. (Morgan married into the Vietnamese community, while Rosen was a former Garden Grove councilmember and a fixture in the city’s legal community — representing former mayor Bruce Broadwater as well as, one town over, former Santa Ana Mayor Miguel Pulido — so it’s likely that the two attorneys are on decent terms. Why did Chmielewski let the bill go up over 36% through, we can presume, his non-cooperation?
I’ll let someone else scoop me, if they can — not you, please, Mike Fox! — on how the second question might be answered, but I do suggest that his friends might want to ask Chmielewski directly why he appears to have spend an extra $5,000 for no good reason. We’ve blocked each other from phone, text, email, and Facebook by now — and for some reason I can no longer access his site from my home IP address, if you can imagine that!, while he continues to be welcome to comment here — so maybe someone can let us know.
As stated, look for the next installment in this series tomorrow.
Let’s not forget, Mr. Chimichanga also likes to mansplain to breast cancer survivors in defense of now-disgraced misogynistic Anaheim City Councilmen who make vulgar and disgusting statements about ripping off their colleague’s breasts.
Lenore Albert-Sheridan, for whom I would talk to from time to time, just got served with papers the day we were a candidates forum for DA at Santa Ana College…so she walked up to me and said “you’re the Mark Daniels, the same one this suit”? I said “Yes I Am” and “You should NOT be running for district attorney…On a suspended license”!
she immediately unfriended me from Facebook..
We received a complaint from Lenore Albert challenging the veracity of the above comment, to this effect:
That last sentence correctly characterizes Lenore’s disciplinary record with the Bar, as can be seen here:
Does this prove that Mark misspoke? Only if the record for that 100-odd-day period was not changed after the fact.
If it was changed after the fact, and this “donut hole” in a suspension from the practice of law did not exist at the time that Mark made the remark to her, then the statement was not incorrect at that time and his recollection of it it true — and therefore not defamatory. (Lenore argues that it may still be “false light” to refer to her suspension during this short time period — on the same grounds that a convicted felon whose record was then expunged might sue someone for stating that they had once been convicted of a felony. I don’t know that that’s the state of the law, last I checked, but maybe she can send me some relevant cases.
My recollection, which may be faulty, is that Lenore’s disciplinary record was altered after the fact to allow her to run for District Attorney notwithstanding her suspension … which is weird … but the Bar may have had its reasons.
I will be trying to clarify this history with the Bar. In any event, Mark’s statement that she (and this is true of anyone) should not be running for District Attorney on a suspended license is opinion and therefore not defamatory. (It’s also pretty sound logic that applies to anyone.) I haven’t yet looked up the latest disciplinary charges filed against her.
So, this comment puts Lenore’s complaint on the record here and explains what reasonable steps I’m taking to determine the comment’s accuracy.
I’ll continuing the discussion in a separate comment, because her initial message to me does also break some news.
Here is Lenore’s message from last Wednesday afternoon in whole, minus a link to this story, its recipient information, and a few other immaterial things:
At the time, I had not attended to that first sentence: “I went over to the Orange Juice Blog to see if Greg Diamond referred to the Anti-SLAPP attorney fee award as ‘sanctions’ in the Mark Newgent ballot challenge matter and I could not locate it after searching three blog articles.”
Why would Lenore come here to see whether I had referred to the $18,000 attorney fee award in the Mark Newgent’s anti-SLAPP motion as “sanctions”? They are not, presumably, attorney sanctions, though I suppose that having to pay the legal fees of one’s opponent might be termed a sort of a “sanction,” in a less formal sense of the term, though not one involving moral or ethical culpability.
The answer might be that Dan Chmielewski was one of the person’s cc’d on the email — along with one other attorney and several members of the State Bar. I had thought that this was because he has long been, in effect, sort of her press agent. But then it occurred to me that she may be legally representing Dan and is looking for actionable dirt!
Then I came upon the recent comment someone calling himself “Vicente Norberto” — very insider name! — and saying this: “Me thinks Greg’s superior legal mind might have just flip fucked this blog. We’ll see how you geniuses fare against mounting legal fee’s”.
So now I’m wondering: was that Chumley?
It was “NOberto” – only one R. And illiterate in other ways, plus pretentious (methinks) and incomprehensible (flip fucked).
So … you’re leaning yes?
Huh? You mean that it’s Dan or Lenore? No I can’t picture either of them putting effort into writing like a drunken Mardahl. Probably a friend of theirs though.
Well, Dan has got the drunken troll part down; he’d just need a small adjustment to his vocabulary and style.
I don’t suspect Lenore … of this.