Wednesday, November 21, 2012

The Case of the Angry Unidentified Customer

♪♬ It’s the most wonderful time of the year
With the kids jingle belling
And everyone telling you “Be of good cheer”
It’s the most wonderful time of the year          ♪♬

“This case demonstrates the dangers of the cut-throat arena of after-Christmas bargain shopping.” So began the Court of Appeals of Tennessee’s opinion in Wells v. J.C. Penny Co. (Perhaps it’s also a prescient warning—a caveat emptor as it were—as to potential jeopardies of pre-Christmas sales.) Ruth Wells scooped up ten collectible crystal figurines at Penny’s.  Employees put them behind the counter while Wells continued shopping.  When she returned, all but two of the figurines—two bears—were missing. Wells grabbed the bears, but “an unidentified female customer cursed her ... Get your g@&&#$* hands off my ƒ&¢%*#$ bears.” Wells did not let go of the bears, but on two separate occasions asked an employee to call for security and management to settle the issue of who would be allowed to purchase the bears. The employee did nothing. Wells asked the unidentified customer, “What’s your name?” The response:  “ƒ&¢% you.”  Wells: “That’s a really nice name. Do you use that every day?” The customer grabbed Wells’s wrist, causing one of the bears to fall to the floor where it met a shattering demise.  (The court observed that “after-Christmas bargain shopping had somewhat diminished the unidentified customer’s Christmas spirit.”) At some point security showed up.  And the unidentified customer—this thus literally adding insult to injury—was permitted to buy the sole remaining bear.

Mrs. Wells and husband (Raymond) sued Penny’s for, respectively, $550,000 (injuries to rotator cuff, shoulders, neck, back) and $50,000 (loss of consortium, etc.).

Penny’s successfully moved for summary judgment. Mrs. & Mr. Wells appealed. Lost. The court explained that while a business ordinarily has no duty to protect customers from the criminal acts of third parties on its premises, a duty arises if the business knows, or has reason to know, that criminal acts are reasonably foreseeable. However, the court rejected Mrs. Wells’ argument that her requests for security or management showed foreseeability. Said the court, The reason for her requests “was not ... fear for her safety, but ...  her desire to have the manager or security guard decide ... [who] would be permitted to purchase the ... bears. ... Wells’s actions do not indicate that she feared a physical assault.” When Wells’s request for the unidentified customer’s name spawned “yet another expletive, Wells’s response was cavalier, and she still did not let go of the figurines and leave the vicinity. Wells’s actions ... indicate that neither she nor the Penney’s employees foresaw that the customer would assault Wells.”

Happy Christmas to all and to all a good night.

Thursday, October 25, 2012

"Sometimes a cigar is just a cigar."

When asked how they destroy seized Cuban cigars, U.S. Customs Agents (so says the Internet) replied: “We burn them –” (comedic pause) “– one at a time.”  So, here’s another online Cigar (tall?) Tale.  A Charlotte lawyer insured a box of expensive cigars against (inter alia) fire.  Within a month he’d smoked the whole lot.  He filed a claim asserting that the cigars were “lost in a series of small fires.”  Claim denied.  Lawyer sued.  Judge awarded Lawyer $15,000 because Insurer had never defined “unacceptable fire.”  Insurer paid.  But (here’s one for you lawyer haters) justice did prevail: Lawyer fined $1,000 for each of 24 counts of arson and insurance fraud and sentenced to 24 months in jail. 

Sausalito, California

Wednesday, September 12, 2012


Plaintiff was injured in a car accident.  Jury awarded her $77,986 in compensatory damages and $1,400 in punitive damages.  Post trial defendant filed a memorandum of costs—“Hey, even though I lost I get my costs!—asserting that plaintiff had failed to best defendant’s Code of Civil Procedure §998 offer of $100,000.49.  (“If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment ... plaintiff shall ... pay the defendant’s costs ...”  CCP §998(c)(1)) 

Plaintiff moved to tax [vitiate] defendant’s cost bill because (as defendant conceded) “his offer did not comply with all the requirements of section 998.”  It seems defendant had failed to include the provision (called for by CCP §998(b)) “that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”  Defendant contended that his “omission was harmless and should not have been interpreted to invalidate the offer ...”; and that to conclude otherwise would “elevate form over substance, thereby defeating the legislative intent behind section 998 ... [which is] to encourage early settlement of lawsuits ... by punishing a party who fails to accept a reasonable offer from the other party.”  (internal quotations and citations omitted)  
The appellate court noted—undoubtedly much to defendant’s deep chagrin—“[I]f the language of the statute is clear and unambiguous, appellate courts must follow the plain meaning of the statute ...”  And: “The plain language of the statute [herein: CCP §998] requires all offers to contain an acceptance provision.”  

The appellate court affirmed the trial court’s order granting plaintiff’s motion to tax: no costs for defendant.  

(Perez v. Torres (2012) 206 Cal.App.4th 418)

John S. Spencer
Sausalito CA 94966

Saturday, August 25, 2012



... can’t recall a good story or punch line to complete this prologue.  Lawyer jokes aren’t memorable.  Even the best (relative term) of them are just nasty and churlish and (worse) not all that funny.  Perhaps lawyers and humor don’t mix.  The “Guide for Counsel in Cases to Be Argued before the Supreme Court of the United States” admonishes putative oral arguers that, “Attempts at humor usually fall flat.”  Which doesn’t prevent the Justices from throwing caution to the wind during oral arguments and behaving as if they were auditioning for a gig on Saturday Night Live.  (“It would be argument for a week, laughter for a month, and a good jest for ever.”  Henry IV, Part I Wm. Shakespeare)

One Ryan A. Malphurs, Ph.D. analyzed transcripts (which noted laughter in the court at various points) and audio files (where he heard laughter) from the U.S. Supreme Court 2006-2007 term’s oral arguments to explore “the communicative function of laughter in Supreme Court oral arguments.”  (You might ask: “Why?”; or, perhaps, just take comfort in the fact that your job doesn’t suck as much as his did.)  Here are some (ehh) humorous excerpts from his “People Did Sometimes Stick Things in my Underwear” The Function of Laughter at the U.S. Supreme Court (Communication Law Review Vol. 10, Issue 2): the title comes from a bit of hilarity provided by Justice Breyer discussing—in the context of a 4th Amendment case involving a strip search of a middle schooler suspected of concealing Ibuprofen—how he, Breyer, was teased as a boy.

Justice Breyer: “In my experience when I was 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, okay?  And in my experience, too, people did sometimes stick things in my underwear.  [laughter noted in the transcript]  Or, not my underwear.  Whatever.  Whatever.  I was the one who did it?  I don’t know.”

Dear Reader — Stop laughing!  Take a deep breath: pull yourself together.  Keep reading please ...

Justices Kennedy and Scalia (the Court’s Martin & Lewis? or, maybe, Cheech & Chong?) were not to be denied their Moment in the Sun of Frivolity.  Malphurs reported only three instances—out of the 131 moments in which justices used laughter during the 2006-2007 term—when the justices used laughter as “an act of aggression.”  Here’s one where these comics’ rapier like wit slashed to bits the arguments of the attorney representing a student who contended that his First Amendment rights had been violated when the school principal confiscated the student’s banner—which read: “BONG HITS 4 JESUS”—and suspended him.  (In a 5 to 4 ruling the Court went on to hold that the First Amendment does not prevent suppression, in a school setting, of student speech that is reasonably viewed as promoting illegal drug use.)

Justice Kennedy: “So under your view, if the principal sees something wrong in the crowd across the street, had to come up and say now, how many of you here are truants ... I can’t discipline you because you’re a truant, you can go ahead and throw the bottle.”  [laughter noted]

Attorney: “No I don’t think [the principal] ... needs to do that in the heat of the moment.  But later on once she’s discovered the true facts, then at that point I think she loses a basis for punishing him as a student if was not there as a student.”

Justice Scalia: “Because you’re both a truant and a disrupter, you get off.  [laughter]  Had you been just a disrupter, tough luck.”  [more laughter]

        Maybe you had to be there —  A jest’s prosperity lies in the ear
                                                          Of him that hears it, never in the tongue /
                                                          Of him that makes it
                                                                                              (Love’s Labour’s Lost Wm. Shakespeare)

Malphurs noted that while the justices “aggressively ridiculed” this particular attorney, “not a single advocate” during the studied time period “aggressively ridiculed the justices” adding (probably unnecessarily) “most likely due to the danger of making light of a Supreme Court Justice.”  (Ya think!?)

But not all judicial personages have been able to avoid laughter inducing  verbal attack.  As a young barrister, F.E. Smith, First Earl of Birkenhead, and one of Winston S. Churchill’s best buddies, was defending a tramway company being sued by a boy who had been run over by a tram and (as alleged) rendered blind.  Churchill reported, in his Great Contemporaries, the following courtroom dialogue —

Judge: “Poor boy, poor boy!  Blind!  Put him on a chair so that the jury can see him.”

Smith (taking umbrage): “Perhaps your honor would like to have the boy passed around the jury box.”

“That is a most improper remark.”

“It was provoked by a most improper suggestion.”

Judge (after a bit of ponderation): “Mr. Smith have you ever heard of a saying by Bacon—the great Bacon—that youth and discretion are ill-wedded companions?”

Smith: “Yes, I have.  And have you ever heard of a saying of Bacon—the great Bacon—that a much-talking judge is like an ill-tuned cymbal?”

“You are an extremely offensive young man!”

“As a matter of fact we both are; but I am trying to be and you can’t help it.”

                                                                                                         * * * * *

                SO, TWO JUDGES WALK INTO A BAR ...

John S. Spencer
Litigation & Mediation
Sausalito CA

Thursday, July 19, 2012



We can (probably) all agree that DISGRUNTLED is an authentic word, an adjective, meaning: displeased and discontented; sulky; peevish. 

But what about GRUNTLED as the obverse?
Perhaps not a pressing legal question but one which reared its linguistic head during oral argument at the U.S. Supreme Court on Nov. 3, 2009 in the case of Hemi Group, LLC et al., Petitioners,  v. City of New York (which involved cigarette taxation: lots of money at stake).  Using our time machine let’s pop back to that late Fall day and listen in as Randolph H. Barnhouse, Petitioners’ attorney, begins his oral argument —

    Thank you, Mr. Chief Justice, and may it please the Court:

    The city of New York alleges that it only collected 40 cents on the dollar and it wants to collect 300 cents on the dollar from my clients but the city lacks standing to sue because the city’s claim that it lost the sovereign opportunity to tax is not an injury to business, and it’s not an injury to property.

    (ellipses and brackets not included)

Chief Justice Roberts immediately poses a question — 

    Q. Why – why isn’t the property money?

    Attorney Barnhouse responds,

    A.     Money in the bank would be property, Mr. Chief Justice Roberts, but an opportunity to collect money is an inchoate [i.e., not fully developed] interest, and so it would not be property at that point.  It would be the opportunity to collect it.
    Q.     Well, isn’t a lawsuit with a potential recovery regarded as property of an individual?

    A.     The lawsuit would be – the lawsuit itself would be property, but the – but any recovery would not be property until choate, until there was an amount of money assigned to it.   

    Justice Scalia chimes in,

        There is no such adjective – I know we have used it, but there is no such adjective as “choate.”  There is “inchoate,” but the opposite of “inchoate” is not “choate.” ... It’s like “gruntled.”

Was Justice Scalia’s scolding of Mr. Barnhouse—albeit done in a jesting fashion: laughter in the courtroom noted in the transcript—was the scolding well founded? 

The (on line) Urban Dictionary unabashedly defines gruntled as: “The opposite of disgruntled.  To be happy.”  And P.G. Wodehouse, in his 1938 Code of the Woosters, penned: “If not actually disgruntled, he was far from being gruntled.”  (To add some obfuscation to the mix, the Oxford English Dictionary defines gruntle as: “to grumble, murmur, complain”; and references Robert Bruce sermonizing in 1589: “It becomes us not to have our hearts here gruntling upon this earth.”)

However, there doesn’t seem to be similarly strong support for choate as the opposite of inchoate, although use of choate in that context is not without precedent.  As far back as 1896 Oliver Wendell Holmes lamented its inclusion in a California court opinion—he felt it was a legal barbarism.  And further atrocities followed.  The court in Quail v. Municipal Court (1985) 171 Cal.App3d 572 opined: “But it did render choate another part of Blackstone’s and Marshall’s definition of an Englishman’s in forma pauperis right.”; and from Boyle v. Hawkings (1969) 71 Cal.2d 229: “Plaintiff’s right ... to interest became “choate on the date of judgment ...”

A parting thought — If gruntled is a word so shouldn’t sheveled be?

John S. Spencer
Litigation & Mediation
Sausalito CA

Tuesday, June 19, 2012



Once upon a time a California homeowner called police to report vandalism at his property.  This was the first link in what turned out to be a chain of events which could almost be the plot outline for a Cheech & Chong movie and which could be described, from the homeowner’s perspective, as a massive bummer.  (Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536.)

Arriving at Homeowner’s property responding officers collared a suspect, “who, in the course of his arrest, attempted to retaliate against” the homeowner by stating (I paraphrase): “Hey, man, get your hands off me ... let me go ... this homeowner dude grows pot!”  When confronted with this accusation Homeowner “showed the officers the marijuana ... he was growing in his backyard ... [and] provided ... a statement from his physician recommending his use of marijuana for certain medical conditions ...”  The officers did nothing about the home grown crop.  Thus finished (temporarily) serving and protecting, they left.  (So far, so good for our homeowner, but ... ) 

Six years later the other shoe dropped (the opinion provides no explanation for the long delay).  Pursuant to a search warrant, based in part on information obtained from a police helicopter (nowadays it would be a drone) overflight, the Boys in Blue (although given their mission they might have been adorned in camo) returned to Homeowner’s property: They dug up, seized and hauled away the fruit of Homeowner’s agrarian labors (although they left Homeowner firmly potted in his house).     

Homeowner, his wits still about him (or perhaps restored due to the removal of easy access to his herbaceous intoxicant), lodged a claim with his homeowner’s carrier for $98,000: the appraised value of the (as Homeowner contended)  peculated produce.  Claim denied; reconsidered: denied again. 

Several months later there was more bad news for our Job-like Homeowner.  The Languid Arm of the Law finally reached out and charged him with possession and cultivation of marijuana.  However, momentum then shifted (sort of) to Homeowner’s side.  Charges were dismissed and the court ordered that Homeowner and his precious (forcibly harvested) flora should be reunited.  Unfortunately for Homeowner the captured cannabis had already been burned up by then.  (It’s unclear from the opinion whether the burn procedure was similar to one employed by U.S. Customs Agents to destroy appropriated Cuban cigars, which, speaking on condition of anonymity, one agent has described as follows: “We destroy the cigars by burning them –” (insert comedic pause) “– one at a time.”)  

Homeowner sued his carrier (remember his theft claim had been denied) for breach of contract and bad faith.  Homeowner lost per summary judgment in the trial court because, as the court explained, “Whether the [search] warrant [stemming in part from the helicopter overflight] should or should not have ... issued is not viewed as dispositive, because once it existed, law enforcement personnel possessed ... facially valid authority to enter plaintiff’s home and seize the marijuana.”  Judgment in favor of carrier confirmed by the appellate court. 

(OK, dopers, put that in your pipes and smoke it.)

John S. Spencer
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
877-999-5200 (toll free)

Tuesday, January 17, 2012


Lizzie Borden took an axe
And gave her mother forty whacks
When she saw what she had done
She gave her father forty-one.


So prosed Robert Burton (1577-1640) in his The Anatomy of Melancholy.  Mr. Walter George Charles, the Charles in People v. Charles (1963) 223 Cal.App.2d 369, lends support to Mr. Burton’s insistence.  Charles was accused, and convicted, of some seriously heinous crimes perpetrated against a victim, identified as “Martha,” about 10:15 p.m. on a mid-May night near a bus stop about four blocks from Martha’s house.  Charles was assisted in his dastardly deeds by a toy gun which he had painted black. (He also had a postal change-of-address card on his person which bore the notation: “This is a holdup.  Give me all the money and you won’t get hurt.”)  The criminal particulars are troubling but not particularly scintillating.  For purposes of this rhythmic report the only facts of note are that during the commission of the transgressions—and this according to Martha—during the course of his transgressions, Charles the Perpetrator “read some poetry he had written—he said he was a poet and a beatnik.”  Oh, and he had “a heavy beard” and “sideburns.”


Boy (age 45—yes, forty-five) meets Girl (age 17).  Sparks Fly!  They date.  (Boy provides Girl with “an apartment, an automobile, insurance, a weekly allowance,” etc.)  Two years later Boy gives Girl a big@$$ engagement ring valued, per the financial statement attendant to the prenuptial agreement which Boy also gave her, at $21,000 (this is 1984).  The Prenup is signed.  The Connubial Knot is tied.  A decade passes.  Love fades.  Boy and Girl separate.  Girl discovers that the engagement diamond is a fake.  During divorce proceedings she seeks to invalidate the prenuptial agreement due to fraud. If she had known (the Girl testified) that Boy “had given her a fake ring and lied about it, she would not have signed the ... agreement and ‘would not have married the man.’”  Girl won in the Trial Court and won again in a Reviewing Court but lost in the Pennsylvania Supreme Court. (Porreco v. Porreco No. 9 WAP 2001)  (The introductory rhyming lines above are the beginning of an entirely poetical dissent penned by one of the Supreme Court Justices, a Mr. Eakin.)

♪♬       Although I’m so tired I’ll have another cigarette
            And curse Sir Walter Raleigh
            He was such a stupid get             ♬♪

                                                                                 (J. Lennon “I’m So Tired")

Not only vilified since his death (almost 400 years ago) for his popularization of tobacco, Sir Walter Raleigh ran criminally afoul of the Powers That Be (Were) during his life time and served some time in the Tower of London.  Truly a Renaissance man—alchemist, solider, courtier, privateer, explorer, author—his poetry is sometimes overlooked.  Here’s a sample; his: “Song of Myself” — 

     I was a Poet! / But I did not know it ...
     Aunt Sue / Said it was obviously untrue.
     Uncle Ned / Said I was off my head ...
     I am quite well-meaning,
     But a lot of things always intervening /
     Between / What I mean
     And what it is said / I had in my head.
     It is all very puzzling.
     Uncle Ned / Says Poets need muzzling.
     He might be right.


He was addressing poets, but attorneys might take Horace’s (from Arts Poetica) advice to heart when making opening or closing statements —

A poet should instruct, or please, or both;
Let all your precepts be succinct and clear,
That ready wits may comprehend them soon,
And faithful memories retain them long;
For superfluities are soon forgot.
Never be so conceited you’re your parts,
To thing you pay persuade us what you please.


John S. Spencer
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
877-999-5200 (toll free)