READ THE #$%*&+@ STATUTE!

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
SPENCER LAW FIRM
Sausalito CA 94966
877-999-5200

SO, TWO LAWYERS WALK INTO A BAR ...

SO, TWO LAWYERS WALK INTO A BAR ...

... 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
SPENCER LAW FIRM
Litigation & Mediation
Sausalito CA
877-999-5200
johnspencer@spenlaw.com

CONBOBULATED

COMBOBULATED?

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
SPENCER LAW FIRM
Litigation & Mediation
Sausalito CA
877-999-5200

POKE SMOT

POKE SMOT

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
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com

ROSES ARE RED, VIOLETS ARE BLUE ...

Lizzie Borden took an axe

And gave her mother forty whacks

When she saw what she had done

She gave her father forty-one.

“ALL POETS ARE MAD.” 

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.”

A GROOM MUST EXPECT MATRIMONIAL PANDEMONIUM
WHEN HIS SPOUSE FINDS HE'S GIVEN HER A CUBIC ZIRCONIUM

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.
     Good-night!

FREE LEGAL ADVICE

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
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com

Birds & Bees

SPENCER LAW FIRM LEGAL PRATTLE
“Superfluity Does Not Vitiate!”

"She was not quite what you would call refined. She was not quite what
you would call unrefined. She was the kind of person that keeps a parrot."
(Mark Twain)

“But you have retired, Holmes. We heard of you as living the life of a hermit among your bees and your books in a small farm upon the South Downs.” “Exactly, Watson. Here is the fruit of my leisured ease, the magnum opus of my latter years!” He picked up the volume from the table and read out the whole title, Practical Handbook of Bee Culture, with Some Observations upon the Segregation of the Queen.

“His Last Bow” (The Complete Sherlock Holmes)

BIRDS & BEES have on occasion winged their way onto the jurisprudential landscape. Casanova, a loquacious parrot, starred as the key witness in “The Case of the Perjured Parrot” from the (original) Perry Mason TV Series based on Erle Stanley Gardner’s 1939 murder mystery of the same name. (Yes, Perry won.) Murder victim’s pet African Gray parrot yclept Max played a similar role in a true life California homicide. Jane Gill (age 36) was found smothered to death in her bedroom. Her business partner (and beneficiary of three life insurance policies for the deceased totaling Two Million Dollars) Gary Rasp was charged with murder. However, Max the parrot caste some doubt on things as, post mortem, he kept repeating, Richard, no, no, no. Richard, no, no, no.” Defense counsel jumped all over this but the judge didn’t want the jury “poisoned” by such bird brained chatter. Gary Rasp was convicted. (Where’s Perry when you need him?)

AN UNNAMED PARROT played a minor role in People v. Paul (1957) 147 Cal.App.2d 609 (disapproved by In re Culver (1968) 69 Cal.2d 898). Just after 1:00 a.m. on January 3, 1956 Ruston Paul entered a Los Angeles liquor store. The clerk said Paul had a “fierce” look on his face as he walked to the very back of the store which housed the owner’s living quarters. “You can’t go back there,” said the clerk. Cops were summoned. One of them said that Paul “looked like a fairly good robbery suspect.” When questioned Paul answered incoherently. So, the deputy decided—though the logic of his decision is unexplained—the deputy decided to try “slang.” He told Paul, “There is no use shucking and jiving. We know what has been happening around here. Let’s see what’s shaking.” Paul replied, “Let’s dance!” and volunteered, “I was looking for a preacher in a C-47 Cadillac.” Deputies informed Paul that he was under arrest for suspicion of robbery and narcotics. They tried to handcuff him. There was a scuffle. Shots rang out. Paul was wounded. When asked what he had been doing in the back of the store, he answered, “Looking at the parrot” (which the owner kept on the premises). Unclear whether the parrot saw the events at hand, but the bird didn’t testify at Paul’s trial for “escaping from the lawful custody of a deputy.” Guilty as charged.

AS TO BEES. Not exactly the Bates Motel but this Louisiana case is nonetheless right out of a horror movie. Innkeeper held liable for injury caused when a guest slipped and fell in a shower while trying to avoid being stung by bees coming out of a shower head! (Liability based on facts that defendant knew bees were outside motel, had hired beekeeper to remove bees, and failed to warn plaintiff of bees near his room. Brasseaux v. Stand-By Corp. (La.App.1981) 402 So.2d 140, cert. den. (La.1981) 409 So.2d 617. (For some California insect attack law see Brunelle v. Signore (1989) 215 Cal.App.3d 122.)

All Nature seems at work. Slugs leave their lair –
The bees are stirring – birds are on the wing –
...
And I, the while, the sole unbusy thing,
Nor honey make, nor pair, nor build, nor sing.

(Samuel Taylor Coleridge “Work Without Hope”)

☆☆☆☆☆

John S, Spencer
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com

The Devil Made Me Do It

SPENCER LAW FIRM AUTUMNAL DRIVEL
    “Superfluity Does Not Vitiate!”

Now the serpent was more subtile than any beast of the field which the Lord God has made.  And he said unto the woman, Yea, hath God said, Ye shall not eat of every tree of the garden? (Genesis 3:1)

            “Oh,” cried the farmer, “Why did you bite me after I saved you?”
            “You knew I was a snake when you picked me up,” answered the snake.
                                                                                     (The Farmer and the Snake)

                  “NEVER GIVE A SUCKER AN EVEN BREAK”    
                             (Otis Criblecoblis)
                                                               
On Oct. 4, 1938 a young New Jerseyite named Harry Yadkoe sent W.C. Fields: “some scenes and dialogue for your next picture ‘You Can’t Cheat an Honest Man.’” The film debuted the following year starring Fields (funniest man ever) as Larson E. Whipsnade (with a comedic assist from Edgar Bergen & Charlie McCarthy). Yadkoe was upset about lack of monies for a scene where a woman fainted each time Whipsnade mentioned snakes; booze was then called for and produced, ostensibly to treat the lady, but really just to be imbibed by Whipsnade. A lawsuit ensued. (Yadkoe v. Fields (1944) 66 Cal.App.2d 150) Yadkoe testified that “I sent ... [Fields] this snake story ... [and] some ‘Snake-isms’ [where] ... I have him coming home and ... [he’s] boasting how he conquered the snake, how he beat it wrestling and ... this women hears the mention of snakes and faints, as she faints he gives her a drink of liquor and takes a drink of liquor himself and goes right on talking about snakes and the same thing happens and he takes another drink ...” Young Mr. Yadkoe won eight grand at trial; affirmed on appeal. As he was leaving the courthouse Fields (who averaged three quarts—yes, quarts—of gin a day) undoubtedly uttered (one of his favorite exclamations): “Godfrey Daniels!”

        IN CASE I RUN INTO A SNAKE

Snakes appear quite often in the law as a reason for exercitation of 2nd Amendment rights. Here are two (of many) examples: The gun in my backpack? Only used to shoot snakes, officer, it had nothing to do with my marijuana farm. (United States v. Fernandez (9th Cir. 2008) 526 F.3d 1247) Honestly, officer, I wasn’t in a “gunfighter stance” and I only “put the clip in the weapon because of snakes, rats and  skunks which inhabit the area.” I had no intention of drawing my gun on you, officer, really, believe me ... (People v. Mercer (1980) 113 Cal.App.3d 803)

        HERDING MONGOOSES?

Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc. (1st Cir. 1997) 124 F.3d 43 stemmed from, “an unwanted intrusion by a rabid mongoose into the opulent environs of a posh luxury hotel.” The evil little brute “scurried into the pool area and bit” a sunbathing guest. She endured painful anti-rabies inoculations.  She sued. She lost. Trial court granted, appellate court affirmed, Hyatt’s motion for summary judgment: “[U]ncontradicted evidence indicates that Hyatt had no inkling of the mongoose’s existence, had no reason to suspect that mongooses were lurking nearby ... In the utter absence of any evidence of either knowledge or control ... summary judgment” was appropriate. No one bought plaintiff’s argument, “that a symbiotic relationship existed between Hyatt and the mongoose population in the [nearby] mangrove swamp” or her “suggestion that Hyatt must have benefitted from the mongooses’ natural affinity for devouring snakes and rodents, and that this benefit is legally tantamount to control. The record is devoid of any evidence that mongooses patrolled the perimeters of the hotel’s grounds, performing pest control functions.”

        TASTES LIKE BALD EAGLE

An Internet gourmand claims: Rattlesnake has a very gamey flavor. Almost  a  delicate  seafood-like  taste.
A little like alligator, a little like quail, a little like frog legs. Good eating? Let me know. Mix 1/4 cup olive oil, three large garlic gloves, some Italian spices, peppers, some other stuff. Simmer a (presumably dead) rattlesnake in water and lemon juice for one hour, remove and separate meat from bones. Combine de-boned meat with sauce, simmer for half an hour. Pair with pasta of choice.

☆☆☆☆☆

John S, Spencer
SPENCER LAW FIRM
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
415-331-2400
877-999-5200 (toll free)
johnspencer@spenlaw.com