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In the summer of 2007, John Matthews, vice president of Universal Press Syndicate, received a call from Steve Breen, Union-Tribune editorial cartoonist. Breen said he felt his job at the Union-Tribune was "definitely threatened" if he went ahead with a comic strip he was planning to do with Steve Kelley, former U-T cartoonist, who had earlier departed the paper on bitter terms. In a declaration under oath, Matthews said that Breen "believed he would lose his job at the newspaper if he did not quit the project, because his editors did not want him working with Mr. Kelley." Matthews's testimony was put into evidence at a reconsideration hearing late this month before Superior Court Judge Jay Bloom, who had earlier thrown out Kelley's suit against the U-T for contract interference, among several things. Matthews stressed that Breen's fear of getting in trouble with the U-T was the only reason the cartoonist gave for backing out of the strip.

Bloom, however, said Matthews's new statement did not add "a triable issue of fact." Earlier, another official of the Universal syndicate had reported Breen saying, "My paper is essentially telling me they don't want me working with Steve Kelley," and that was the reason Breen was pulling out of the strip. Bloom initially said that statement was hearsay, but after the Universal executive put it in a deposition, the judge admitted it, but was not swayed.

"All the evidence shows there was one reason Breen withdrew in 2007 and that's because the newspaper made him withdraw," says Bob Gaglione, Kelley's lawyer. Gaglione showed the evidence to ten lawyers, all of whom said it was overwhelming. Bloom's dismissal of the case will be appealed, says Gaglione. Kelley's strip, "Dustin," now being done with another cartoonist, will be launched soon. The U-T is not expected to run it.

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Comments

SurfPuppy619 Dec. 28, 2009 @ 6:21 p.m.

This is common place today-Judges won't let you go to trial, they want to rule not just on all the issues of LAW, which they should, but now they also want to rule on all the issues of FACT, which only a jury can decide.

This is a question of FACT. A jury needs to hear and rule on it, not Judge Bloom. But Judge Blooms response is common place today.

It is obvious from the two witnesses statements that the UT was interferring with Breen's contract with Kelley-Kelley has a legitimate claim and cause of action.

Judges today have egos the size of Texas, their have grown too big for their britches...........

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Don Bauder Dec. 28, 2009 @ 7:08 p.m.

Response to post #1: Yes, judges increasingly want to keep suits away from the jury. In this case, you also have to consider the defendant: the U-T, establishment tool. Best, Don Bauder

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Burwell Dec. 29, 2009 @ 2:13 p.m.

"All the evidence shows there was one reason Breen withdrew in 2007 and that's because the newspaper made him withdraw," says Bob Gaglione, Kelley's lawyer.

The newspaper was within its rights in requiring Breen to chose between his job at the U-T, or his new business venture with Kelly. The issue of whether the U-T threatened to fire Breen or not is irrelevant. Kelly's cause of action is against Breen, not the U-T, for breaching the contract he signed to co-write with Kelly a new strip for Universal. Breen was legally obligated to perform this contract even if it resulted in his firing. There is no contractual inteference in this case because Breen's employment with the U-T predates his contract with Kelly/Universal.

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SurfPuppy619 Dec. 29, 2009 @ 4:56 p.m.

The newspaper was within its rights in requiring Breen to chose between his job at the U-T, or his new business venture with Kelly. The issue of whether the U-T threatened to fire Breen or not is irrelevant.....There is no contractual inteference in this case because Breen's employment with the U-T predates his contract with Kelly/Universal.

Intersting comment B-but it is 100% wrong.

I agree with you that Breen certainly has liability. But Kelley is certainly within his rights to sue BOTH-including the UT.

This is clearly a valid legal cause of action-it is called tortious interference with contractual obligations. While you are correct tha Breen is partially at fault-and is also open to suit (it is unclear if Breen is also a defendant), you are just flat out wrong that the UT has no liability.

1) this contract was not something that interferred with Breen and his UT work;

2) therefore, the UT has no business in making any demands against what an employee does in their off hours-as long as it does not interfer with their employment.

3) lawsuits like this are filed and won every single day in this state.

But don't take my word for it-take the top law school in the country for it;

" A enters into a contract with B, and a third party, C, who has knowledge of the existing contract, induces breach and receives more or less the same performance that the original promisee would have received. In such a case, the tort of interference allows the promisee (A) [Kelley] to recover damages from a third-party inducer (C) [UT], often in addition to an award of damages from the promisor (B) [Breen] under a breach-of-contract claim."

P 736 (p#2), second paragraph.

http://www.yalelawjournal.org/pdf/111-3/VaradarajanFINAL.pdf

This covers the law very well.

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Burwell Dec. 29, 2009 @ 6:48 p.m.

1) this contract was not something that interferred with Breen and his UT work;

2) therefore, the UT has no business in making any demands against what an employee does in their off hours-as long as it does not interfer with their employment.

=========

Management had the right to expect Breen would devote his full time and attention to his duties as the U-T. It is reasonable for management to believe that Breen might not be able to fully perform his job at the U-T and at the same time draw a nationally syndicated cartoon strip for a competitor. It is also reasonable for management to believe that Breen would quit his U-T position if the strip was successful, leaving them without a cartoonist on short notice. Therefore, it would have been legal for the U-T to fire Breen and hire another cartoonist to replace him had he gone through with his plan to work with Kelly. Your analysis ignores the master and servant legal relationship between U-T and Breen. Your analysis stands up only in the situation where one independent business attempts to interfere with the contract of another independent business. This is not the case here.

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Burwell Dec. 29, 2009 @ 6:53 p.m.

I would also add that although I do not believe Kelly has much of a case, if any witnesses in the case lied under oath they should be charged with perjury.

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Visduh Dec. 29, 2009 @ 7:50 p.m.

Isn't this interesting? Two lawyers (that is, if Burwell is also a lawyer) have diametrically opposing opinions of the legal standing of this lawsuit. Happens all the time. I really don't think that Burwell has it right here. But, I'm a layman. What is needed is a court to sort it out and one already has ruled. But then, what happens when a court gets it wrong? Why, there is an appellate court that often overrules the lower court and finds just the opposite. The appellate courts often get it wrong also, which leads to a state supreme court appeal wherein the appellate court is overruled and reversed in many cases. Finally, there can be recourse to the US supreme court, which can also overrule the state court. Isn't this legal system great? At every step along the way there's more work for lawyers. This suit by Kelley could to on for years while the U-T changes hands a couple more times, and there's nobody on board there who had anything to do with the matters at hand.

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Burwell Dec. 29, 2009 @ 8:12 p.m.

Two lawyers (that is, if Burwell is also a lawyer)

I am not a lawyer. I work for a living.

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Don Bauder Dec. 29, 2009 @ 8:29 p.m.

Response to post #3: Keep in mind that Breen has had a syndicated strip for some time. Best, Don Bauder

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Don Bauder Dec. 29, 2009 @ 8:34 p.m.

Response to post #4: Cartoonists often have special contracts with cartoonists, permitting them to do outside work. Best, Don Bauder

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Don Bauder Dec. 29, 2009 @ 8:36 p.m.

Response to post #5: Again, Breen has had an outside cartoon of his own for a long time. Best, Don Bauder

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Don Bauder Dec. 29, 2009 @ 8:38 p.m.

Response to post #6: Who is going to charge the U-T's cartoonist with perjury? DA Bonnie Dumanis? Don't make me laugh. Best, Don Bauder

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Don Bauder Dec. 29, 2009 @ 8:40 p.m.

Response to post #7: The lawyers do have the system rigged. Best, Don Bauder

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Don Bauder Dec. 29, 2009 @ 10:02 p.m.

Response to post #8: Lawyers' compensation was a stunning percentage of GDP the last time I checked, but that was decades ago. I have forgotten what it was then. Best, Don Bauder

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SurfPuppy619 Dec. 30, 2009 @ 8:47 a.m.

Management had the right to expect Breen would devote his full time and attention to his duties as the U-T. It is reasonable for management to believe that Breen might not be able to fully perform his job at the U-T and at the same time draw a nationally syndicated cartoon strip for a competitor.

I don't think this assumption is reasonable at all. It is pure speculation to a future event-and if it did turn out the way you desrcibe then the UT could sue Breen and Kelley for breach-but until there are actual damages-a breach- then the UT has no case and cannot take any action. . . It is also reasonable for management to believe that Breen would quit his U-T position if the strip was successful, leaving them without a cartoonist on short notice. ================ Once again, this is pure speculation to a future event with no support whatsoever-and NO DAMAGES. Second-did the UT have a contract for future work from Breen? If no, then they cannot lay claim to future damages if he quits. If the UT wants to lock in Breen for 10 years, then they need to draw that up-but if it is "at will" employment-which is most likely is-then this statement would not even apply. Breen is free to work wherever he wants.

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SurfPuppy619 Dec. 30, 2009 @ 8:48 a.m.

I would also add that although I do not believe Kelly has much of a case, if any witnesses in the case lied under oath they should be charged with perjury.

Breen may be sweating a few bullets over this issue.

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SurfPuppy619 Dec. 30, 2009 @ 8:58 a.m.

Lawyers' compensation was a stunning percentage of GDP the last time I checked, but that was decades ago. I have forgotten what it was then.

Most law school grads today do not find work as lawyers-it just isn't out there. There are job postings for licensed attorneys, with 4 years experience, that are only offering $25K in pay;

http://austin.craigslist.org/lgl/1506122030.html

Even the top law schools in the Country cannot find work for their grads-and when Harvard Law School grads cannot find employment then you can be assured the law grads from the other 199 ABA approves law schools can't either;

http://www.bloomberg.com/apps/news?pid=20601109&sid=avCjq2MsxrnQ

http://lawschoolscam.blogspot.com/

http://thirdtierreality.blogspot.com/

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Don Bauder Dec. 30, 2009 @ 9:02 a.m.

Response to post #15: The U-T's contract with Breen would definitely make a difference in this case. Best, Don Bauder

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Don Bauder Dec. 30, 2009 @ 9:03 a.m.

Response to post #16: Breen doesn't have to worry with Bonnie Dumanis as DA. She would never touch the U-T, which is an establishment tool. Best, Don Bauder

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Don Bauder Dec. 30, 2009 @ 9:06 a.m.

Response to post #17: Also, law firms are splitting up and individual lawyers are closing their offices. Lawyers are learning how the other half lives. Best, Don Bauder

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exnewsman Dec. 31, 2009 @ 9:48 a.m.

Re: Post #2

OT

Just out of curiosity Don, is there a major newspaper that isn't an "establishment tool"?

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Don Bauder Dec. 31, 2009 @ 10:40 a.m.

Response to post #21: Yes, there are major papers that are not establishment tools. The New York Times is one. The L.A. Times is another. The San Francisco Chronicle is another. The Wall Street Journal's editorial page is a complete establishment tool, but the rest of the publication is not, although under Murdoch it seems to be changing slightly for the worst. The Milwaukee Journal-Sentinel is still good, I understand, although I haven't seen it for awhile. There are others. Best, Don Bauder

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SurfPuppy619 Jan. 1, 2010 @ 9:11 a.m.

Hey, it is 2010.

Happy new year to everyone.

Lets make this year the year we all get this cities problems fixed.

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Don Bauder Jan. 1, 2010 @ 9:56 a.m.

Response to post #23: This is the second time you have expressed this upbeat hope. Did you have doubles last night? Best, Don Bauder

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JoeRyan Jan. 1, 2010 @ 12:52 p.m.

Resonse to Post #19: Dan, do you believe that, based upon who Bonnie Dumanis decides NOT to prosecute, that she is effectively acting as tool for people in the San Diego Establishmnet who are committing criminal acts on a systematic/continuous basis? Or in your opinion, would that be going too far?

To those with legal minds, opinions welcomed to this question:

Obviously Bonnie puts murderers and car thiefs and the like properly on trial; but when it comes to decisions concerning establishment figures in the business community, high-sciety social circles, political contributors, GOP figures and so forth, can't the way she exercises the discretion vested in her to prosecute crime, be abused to an extent whereby her actions actually constitute the commission of crime itself (criminal conspiracy, obstruction of justice, etc)?

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SurfPuppy619 Jan. 1, 2010 @ 8:24 p.m.

Dan, do you believe that, based upon who Bonnie Dumanis decides NOT to prosecute, that she is effectively acting as tool for people in the San Diego Establishmnet who are committing criminal acts on a systematic/continuous basis?

DA, like ALL elected positions (including state judges), are pure politics, and they sure as hell use politics in making charging decisions, and not just here but over the state .

Don't let anyone tell you different (and believe me, the judges and DA's will tell you all day long that America has the "best justice system in the world" as they trample all over your rights).

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Don Bauder Jan. 1, 2010 @ 8:47 p.m.

Response to post #25: I don't see how her unwillingness to look at or prosecute crimes committed by establishment figures could be considered a crime by her. And if it were, who would prosecute it? The best that can be done with people like Dumanis is vote them out of office. But her predecessor was Pfingst, who was in the same camp. Ed Miller was an excellent DA. So all is not futile. Best, Don Bauder

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Don Bauder Jan. 1, 2010 @ 8:50 p.m.

Response to post #26: Ah, American jurisprudence. When O.J. Simpson was cleared of murder back in the 1990s, I would tell friends they were "as innocent as O.J. Simpson." Best, Don Bauder

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SurfPuppy619 Jan. 2, 2010 @ 3:28 p.m.

I don't see how her unwillingness to look at or prosecute crimes committed by establishment figures could be considered a crime by her. And if it were, who would prosecute it? The best that can be done with people like Dumanis is vote them out of office. But her predecessor was Pfingst, who was in the same camp. Ed Miller was an excellent DA.

DA Dumanis could be prosecuted for failure to prosecute serious crimes-even with her charging "discretion". In such a case the state AG or the US Attorney could prosecute her for obstructing justice. Voting her out of office is without doubt the easiest way to deal with her.

DA Ed Miller (SP rolls eyes in disgust) did exactly what we are accusing Dumanis of doing right now-making charging decisions based on politics and not on the law. And it cost him his job (and the San Diego taxpayers $4 million dollars). The Dale Akiki prosecution was one of the top 5 prosecutorial misconduct cases I have ever witnessed. I can think of only two other cases that were worse than the Dale Akiki prosecutorial misconduct-the Duke LaCrosse players/Mike Nifong case out of North Carolina and the Rolando Cruz case out of Chicago. The Jim Wade case is right behind Akiki, another multi million dollar Ed Miller catastrophe.

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Don Bauder Jan. 2, 2010 @ 10:32 p.m.

Response to post #29: The Dale Akiki case was a bad one, admittedly, and Miller's Waterloo. Miller was swayed by some yahoos in that one. But look at all the good things he did: getting C. Arnholt Smith and other crooks, for example. Best, Don Bauder

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SurfPuppy619 Jan. 3, 2010 @ 9:51 a.m.

Dale Akiki case was a bad one, admittedly, and Miller's Waterloo. Miller was swayed by some yahoos in that one. But look at all the good things he did: getting C. Arnholt Smith

Agreed, that was a tough job, and Miller took it on.

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Don Bauder Jan. 3, 2010 @ 12:04 p.m.

Response to post #31: I did a column on Miller's successes in 2003, in my first year at the Reader. Best, Don Bauder

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