After assuring both sides he'd be fair to them if the case went to trial, Joseph made one final assertion that he wanted "on the record," the transcript says. "I believe there is no one from the media in this courtroom. It's...one of the reasons that I felt free to address the parties in the way in which I did. I don't think there's any media here at all. I'm quite sure of that. Thank you."
On October 24, Devaney and Lawton filed an appeal of Joseph's ruling with the Fourth District Court of Appeal. As such actions go, they couldn't include any new arguments; they merely restated their case and pointed out errors they felt Joseph made.
This time, though, they cited Joseph's "soapbox" comments. "The trial court's inflammatory 'editorializing' provides further basis for immediate reversal," they wrote. "The trial court openly stated that 'you cannot listen to what public officials say and accept it as true,' " which may be a misinterpretation of what Joseph meant. "This cryptic statement," they continued, "is cynical commentary by a judicial officer presiding over a case in which the defendant is a public official wrongly accused of defamation. The trial court's unsubstantiated opinion concerning the general veracity of public officials at large should have nothing to do with this case."
But if the case does come to trial, it inevitably will. And if ever two adversaries would seem to deserve one another, Thad Poppell and Juan Vargas do.
Poppell has engaged in a running war with low-level bureaucrats and officials since he moved to San Diego from Florida in the mid-'70s. A retired butcher, Poppell speaks with a faint Southern drawl.
He declined to be interviewed for this story, but elsewhere over the years he has described himself as a "liberal" whose avocation since boyhood has been the natural enjoyment of sex and the human body. "It teaches people they don't have to cheat," he said about his E Street sex club in a December 1996 Associated Press story. "They can be open and honest -- and care about people's needs."
In the past, Poppell has couched his "swingers" clubs -- where adults pay an entrance fee to have consensual sex with whomever -- as churches, and in one instance, as a health club. But Poppell was repeatedly shut down for zoning violations. In 1983, he was convicted of operating a brothel in Solana Beach. By the time he bought the site of what would be Thad's Social Club on E Street in 1991, however, he had mastered the zoning rules and anti-prostitution laws.
Poppell still lives on E Street. Parked outside is his late-model gold Mercedes with vanity plates that spell "POPPELL." But the scene is more hillbilly hollow than Playboy mansion: rusting discarded appliances and broken-down chain-link fences are the rule, not electronic gates and grandiloquent statuary.
In contrast with Poppell's sexual libertarianism, Vargas plays up his Catholic background and spouts conservative social values, scolding homeless advocates, for example, for encouraging freeloaders.
A critical point in the case is whether Vargas had any factual basis for his assertion that Poppell had "infested" the community with drugs and prostitution. "I personally walked the 3400 block of E Street...in 1992, soon after [the club] had ceased operating, when I [was] seeking election to the U.S. Congress and later the San Diego City Council," he said in an August 1 declaration filed with the court. "A number of residents told me about the plaintiff's club, how its operation had disrupted the neighborhood and disturbed the residents, and how relieved they were when it closed. Various citizens specifically told me that patrons of the club would litter the block with, among other things, used condoms, needles, and syringes...."
But Vargas has yet to produce one person who made those charges to him. "We're looking for that," Devaney said last week. On a further odd note, the area that Vargas claims to have canvassed is almost bereft of residents. And according to surveys conducted by Poppell, the few people who do live there have never heard of Vargas.
"The fact that these needles and syringes were found in the 3400 block of E Street only on Saturday and Sunday mornings, after plaintiff's club had operated on Friday and Saturday nights, respectively," Vargas notes in the declaration, "led me to the conclusion that plaintiff's patrons were using illegal drugs on those nights. It was that conclusion that led me to make the alleged defamatory statement attributed to me....
"Mr. Poppell infested the neighborhood with drugs as certainly as the owner of a flea-ridden dog infests his neighbor's house with fleas when he brings his dog over to visit. The fact the dog owner himself doesn't have fleas is irrelevant. Drugs infested Mr. Poppell's neighborhood while he operated his club there."
As for the prostitution charge, Vargas's logic is equally self-referential. Devaney wrote in one court filing, "A police officer's or a bureaucrat's conclusion [that Poppell's club was legal and not a brothel] does not in the slightest diminish Mr. Vargas's freedom to opine about whether such 'activity' amounts to shaded prostitution. Mr. Vargas, a trained lawyer, believes that it does."
For now, it's up to the Fourth District Court of Appeal to decide whether Poppell and Vargas will meet head to head in court. Last week, the court asked Poppell to respond to Vargas's request that it overrule Judge Joseph. Marrinan said he would file his reply by the November 21 deadline.