Is the SLAPP Back - Take Two

If you recall, just a couple of days after Heidi Diaz, founder and fraudulent promoter of the dangerous, nutritionally bankrupt Kimkins Diet, had her calculated attempt to derail the Class Action lawsuit, better known as her bankruptcy case, dismissed her attorney, Mr. Peabody (in the Library with the Candlestick), posted a scathing comment (try to keep a straight face here, k?) on Melting Mama’s blog, threatening dire consequences if she didn’t cease and desist in publishing the God’s honest truth about his client on her blog and impeding his client’s attempts to lure even more people into her snare, er, website. (If you missed it the first time, read about it here.)

Well, here we are, just a couple of short days after the court gave a resounding spanking to Heidi and her divorce lawyer – okay, maybe not a spanking but certainly a defeat, when they granted the petition by the plaintiffs – in English, they certified the Class Action status of this lawsuit. Anyway, Mr. Peabody (in the Kitchen with the Rope) has sent another confrontational comment to another blogger.

**BTW, Mr. Peabody, I know that it is Mrs. Peacock in the game of Clue, but I just can’t help myself. It is just how my mind works. It is no way an implication that you run around with revolvers, candlesticks or rope! This case is sort of like a whodunit, except we know whodunit, the culprit has confessed and all that. So, you see, saying things like she is a liar, she is a shyster, she is a con artist, and … well, the list is long, but saying those things is an expression of one’s First Amendment rights because those statements are TRUE statements. In case you aren’t quite up to speed yet on all that, I’d invite you to simply read chapters one, two, three and four of the Heidi Diaz Deposition Compilation.**

First of all, it is very apparent that Mr. Peabody isn’t nearly as familiar with this case as are the rest of us. If he was he would know that the information he keeps demanding (name, address, etc.) is right in front of him. In this case it is actually in the court documents. In fact, his predecessor served this most recent person not once, but TWICE. Surely he knows that, right? If not, his client sure does. So, the threats of contacting IPs and all that are simply that – threats. Empty threats but threats just the same.

And when has anyone ever heard of a lawyer – one who HAS the name and address of the party he is trying to intimidated into surrendering their First Amendment rights of free speech – delivering a Cease and Desist letter … via a blog comment … Let that thought just sink in a moment. A blog comment. Not a certified letter. Not even an email. But a blog comment. Was that enough to compel Heidi Diaz to cease and desist in the matter of using before and after photographs of some of the witnesses in this case in her advertising? No. Come to think of it, the certified letters to her and her attorney weren’t effective either.

Just as with the last blog comment he posted, this one also threatened that if the blog posts didn’t cease immediately that he had been instructed by his client to vigorously pursue this person in a court of appropriate jurisdiction. Now, I have a pretty good idea how much of a retainer Heidi paid him, and I’m really sure that it isn’t enough for him to go hiring lawyers licensed to practice in different states and working with them to bring these flagrant bloggers to justice. We all realize that he isn’t able to practice law anywhere other than California. I doubt he is foolish enough to attempt to sue all these folks in the State of California after it was shot down when Mr. Cottle tried it. Heidi certainly could be paying him more money, of course. I’m just thinking that he likely has a whole lot of work to do on this case right there in Riverside County. And we all know that with lawyers, time is money! So, Mr. Peabody, are you simply doing this to satisfy the whims of your client? You do realize that you wouldn’t be the first person she has led down the path that doesn’t end anywhere good, right? We all know she is VERY convincing, with her sweet voice that belies the cold, calculating person she really is. We know how she can make the most absurd statements and spin them in such a way that you actually start to believe it – you really WANT to believe it, in fact. We KNOW how she can tell bold faced lies all while being shown the proof that she is lying – and how once she realizes that you aren’t buying into what she is saying she will turn on a dime and suddenly be telling a completely different story. I assure you, Mr. Peabody – you will never know when she is telling you the truth and when she is not.

Ah, well. Obviously he recognized the risks in going forward with Heidi’s last efforts to send the witnesses in the case against her scurrying into the shadows. This new tactic is interesting, to say the least, but I’m pretty certain it will be just as likely to backfire. I promise you that the witnesses are totally committed to seeing this thing all the way through. They are not going to go away.

You want to know what is really funny? This blogger, just like the last one, really doesn’t blog much about Heidi Diaz, Kimkins or the lawsuit. This one doesn’t blog much, period. This one certainly is a very big thorn in Heidi’s side, but still is not very active online.

I have to wonder just what Mr. Peabody, or Heidi, hopes to accomplish with these types of tactics? Surely there isn’t a class on legal bullying at whichever fine law school Mr. Peabody attended. And that’s what this boils down too. Legal bullying. Eventually one of those blog post comments might find themselves in the inbox of someone from the California Bar Association. While there was no class on legal bullying, I bet there was a class (or two) on ethics. As my really good friend, John Tiedt, likes to say – there is SO much good that can be done with that law license. So much good. Like pretty much everything else it is all about choices, isn’t it? May we all choose wisely.

And the Decision Is ...

We won the Motion for Class Certification! You ROCK, John!

I do hope some of those who so firmly believed that we have no foundation for a lawsuit here will now realize that we are NOT just a bunch of bored housewives...

I've Been Thinking ...

And reading. Heidi Diaz filed her Opposition to Motion for Class Certification, and John T. has filed his response. She really doesn’t get it, does she? And obviously, neither does Mr. Peabody (it is so hard to say that without adding in the Conservatory with the Knife, but I digress…).

You know how you can be talking to someone and they say one little thing and all of a sudden light bulbs start turning on and you see something so clearly that has been right in front of you all along? Well, I had one of those moments this morning. My mind just flew to all sorts of possible scenarios. Here’s how it went …

A good friend and I were talking about Heidi’s essay contest. You can read all about it here, but basically she wanted all sorts of folks vying for $500 in cash prizes, plus Kimkins gift baskets and gift certificates by writing in and telling why they simply LOVE Kimkins. If you notice, the date that contest ended was May 11. Suddenly I realize WHY she is doing that. She has to support the claim Mr. Peabody made in her Opposition – that she has “a substantial number of current active and satisfied clients”. Those essay entries should be safely in the hands of those “blind” judges by now. And the hands of Mr. Peabody, I would add. She has to be able to produce those satisfied clients.

She promised that their names would not be published. Of course, she forgot to mention that once they are submitted to the court as “proof” that their real names will have to be produced as well. She will have to produce those testimonials as exhibits. Don’t forget the fact that they are real people and not sock puppets or paid endorsements will have to be validated. In other words, they will become witnesses for the defense. I’m sure she will try to claim that their identities are somehow privileged. She may be able to hide their name from the public, but the question of whether or not they are real people will still have to be proven to the satisfaction of the court. Given her pattern of fictionalizing, shall we say, that is a genuine and significant question. If they are real people, they have been gathered up by the guise of a “contest”. Another deception. Surprise!

Anyone want to bet that they won’t be published on her site at all? She will claim she is not doing so to protect them, or her attorney advised her not to or some such thing. How about this – the Class Certification hearing is May 20. She is announcing the winners on June 1. She will say the court won’t let her publish that information. Or maybe the “blind judge” is THE judge and she will pick the one he seems to like the best or the one that she believes gets her off the hook. But either way she will say she awarded the money. I wonder if she realizes that to NOT pay those prizes out to real people would be yet another fraud? If a single person submitted their entry via the US Mail that would be a special type of fraud.

I wonder, too, about the testimonials that are popping up on her LiveExpert site (assuming they are real people). She obviously has all of their contact info – whether it is just via their bank or Paypal account or actual address, or her sock drawer. Are they going to pop up as some of her satisfied clients?

Well, this is all just speculation on my part, of course. I have no crystal ball. I just hope that those folks who thought they saw easy money don’t find themselves unwittingly in the middle of her legal messes. Not that she would care, as so many can attest to.

Awhile back this blog post was published in which Heidi supposedly wrote an email to someone addressing the scam involving her and her website. In that email she wrote that two years ago she admitted to making errors in the promotion of her website but immediately corrected those errors when she got caught. Two years ago. That part is certainly a lie, though it is apparent that she is going to try to hang her hat on that hook, judging by her filing.

She made another statement in that email, though, that bears some focus. She said, “What didn't change is Kimkins: a very inexpensive weight loss plan that allows members very quick weight loss. Kimkins is a lean low carb diet with up to 6 servings of leafy greens daily. Less fat than Atkins, fewer carbs than South Beach, low glycemic with superior blood sugar control. This is why our members often report losing 5% of their TOTAL body weight in 10 days or less.”

She is sure right about that. Kimkins has NOT changed. It is STILL a dangerously low calorie diet. It is STILL perpetuated by misleading statements and representations. She is STILL morbidly obese – a fact she fails to list in her “credentials” on her LiveExpert page - proving she STILL isn't able to follow the very diet she cheerfully accepts payment for and promotes. She STILL represents that she has many active members, when, in fact, her numbers have dwindled to a couple of handfuls of fairly regular posters – even lower when you omit the sock puppets. Heidi STILL lies about all sorts of things germane to this case. Yes, indeed. She is sure right that Kimkins has not changed.

16 Days and Counting ...

Just a reminder since Heidi has a tendency to forget these things:

"TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
NOTICES IS HEREBY GIVEN that the MOTION FOR CLASS CERTIFICATION, filed by Plaintiffs, ...,filed on or about April 10, 2009, has been set for hearing on May 20, 2009, at 8:30 am in Department 4 of the Riverside County Superior Court ..."