Wednesday, September 30, 2015


          Yesterday, Labor Day, was my 40th anniversary.  Labor Day 1975.  Four decades ago.  That is when it happened.  Could have been four minutes. Hard to tell even for Einstein.  From my perspective today, the years whizzed by like the rapid flipping of calendar pages to mark the passing of time in a 1940's movie.  But at moments (a measurement of time itself) during those 40 years, time loitered, leaned against a wall, lit a cigarette and watched with detached amusement as I struggled with legal conundrums.  But I cannot help but wonder….  Oh, dear me, in this pseudo-literary pretentious reminiscence, I forgot to tell you what event occurred 40 years ago.  Give me a moment.  Oh, yes, got it.  Justice Stanley Mosk "swore me in" as a judge in the Los Angeles Municipal Court. 
          What was the municipal court?  As I recall, it was a court of limited jurisdiction.  At that time we handled traffic tickets, misdemeanors and civil cases with a limit of $5,000.  What was $5,000 worth at that time?  I can't tell you, but I do know the Bretton Woods Agreement was defunct.  And a few years before my appointment, President Nixon issued an order preventing the conversion of the United States dollar to gold.  Don't ask me to explain the significance of all that.  In 1975, I was hearing DUI cases.
          I cannot speak for others, but for me the acknowledgement that I have been engaged in my profession for 40 years has been a smack in the face.  At age 40, Einstein had figured out E=mc2 some 14 years earlier.  At age 40, Mozart had been dead for five years.  And Leondra Kruger had not been born yet.  But comparisons with geniuses are pointless, if not presumptuous.  And one can accomplish much in the law, but litigating and judging necessarily involve what has been called a "relentless pursuit of error."  That means that lawyers can as easily win a case as lose one.  And judges, even the best, are subject to reversal.  Of course, judges are affirmed from time to time, but statistically they are more often reversed.
          It started my first day on the job, the day after Labor Day 1975.  That is the day Elwood Lui and I began our careers as judges.  We sat as spectators in a trial court and watched Commissioner Nancy Brown handling traffic cases.  In those days traffic violations were considered criminal cases, not infractions.  She later became a superior court judge.  Commissioner Brown took a recess and announced that the next case would be heard by Judge Gilbert.  Huh?  She called me back to her chambers and held out her robe.  It was a perfect fit.  That's what happens when you are short.  Court was called into session and I heard my first case.  Gulp!
          Cannot remember the charge, but I do remember the defendant was a savvy pro. per. who had thoroughly researched speeding and traffic studies in the United States and abroad.  He produced charts and graphs and had an encyclopedic knowledge of the legislative history of the vehicle code.  The deputy city attorney prosecuting the case was not much help.  I found the defendant guilty.  He appealed.  I vaguely remember being reversed by the imposing appellate department of the superior court.  That’s what time can do.  I do remember, however, the presiding judge of that court telling us municipal court judges that the appellate department of the superior court was our Supreme Court. 
          I thought about the progress that has been made in gene sequencing.  In the future we may produce perfect human beings with high intelligence, good manners, impeccable taste.  Surely such faultless individuals would be error free.  Imagine error-free judges and lawyers.  We would all be out of work.
          On second thought, I doubt gene manipulation will solve the problem of error in the legal profession.  The question boils down to when the alleged error occurs and who or, should I say, what court considers it error.  And let’s not forget to add to the mix the concept of harmless error, or what I have termed in some cases, “harmless terror.”  We should consider harmless error against the backdrop of Cal. Const., art. VI, § 13, “miscarriage of justice.”
          For differing views on error, I commend for your reading pleasure and enlightenment the recent case of People v. Blackburn (Aug. 17, 2015, S211078) [2015 Cal. LEXIS 5629].  Justice Liu, in his concurring opinion, and Chief Justice Cantil-Sakauye, in her dissent, offer differing views, both thoughtful and well reasoned. 
          Justice Liu's majority opinion holds that in a MDO (mentally disordered offender) civil commitment proceeding extending the involuntary treatment of the defendant, the court must advise the MDO personally of his or her right to a jury trial.  The court may not hold a bench trial without a personal waiver from the defendant unless there is sufficient evidence to raise a reasonable doubt that the defendant lacks the capacity to waive a jury trial.  In such case, the defendant’s attorney decides the waiver question. 
          Sixteen years ago in People v. Otis (1999) 70 Cal.App.4th 1174, the Court of Appeal held that, in a similar MDO proceeding, the defendant’s trial counsel could waive jury over the objection of the defendant.  The California Supreme Court denied review, and numerous courts in subsequent cases followed Otis.  Blackburn approved the result in Otis, because defendant displayed obvious signs of cognitive impairment at his commitment hearing.  But Blackburn disapproved Otis.
          The partial error in Otis occurred not when it was written over a decade ago, but just a few weeks ago.  I guess that proves that error is in the mind of the beholder.  Or should I say, in the mind of the beholders?  Did I mention that I wrote the Otis decision?  Sorry, I guess it slipped my mind.  But guess what?  I agree with the well-written majority opinion in Blackburn.  I also agree with Otis, as far as it went on its particular facts.
          Changing notions of justice and interpretation give the law its vitality. That is what makes our work so challenging and stimulating. Yet we strive to make change orderly and measured so that people can conduct their affairs with a reasonable degree of predictability. 
          It has been a privilege to serve on the court for the past 40 years.  I suppose the years went by so quickly because I found the work so fulfilling.  A famous judge once said that if a judge is never reversed, he or she isn't doing a good job. 
         I plan to stick around a few more years where I am sure to find errors made by trial judges, and to make more of my own.  And about reversals…


     Musicians auditioning for a symphony often play behind a screen that separates them from the conductor judging their performance.  This practice is designed to ensure fairness and objectivity.  Why not do the same with lawyers arguing cases in the courts?  I have been thinking about instituting a pilot program in the Court of Appeal.  Under the current face-to-face practice, a judge may be unwittingly influenced in evaluating the merits of an argument by observing the lawyer's body language or facial expressions.  After a tough question from the bench, I try to ignore the lawyer's eye twitching or shoulders drooping.  If I turn away to avoid seeing a trembling hand or beads of sweat dripping on the counsel table, I seem detached and uninterested.  A screen that separates the court from the advocates prevents such a misperception.  It would likely ensure a shorter argument and erase any doubts about objectivity and fairness.  Attorney anonymity ‑‑ music to my ears. 

         Unfortunately, my informal attorney poll gained no traction in the bar.  At first, lawyers with lousy cases liked the idea, and those with winning cases were against it.  But when the lawyers gave it a second thought, they recognized that cases perceived to be winners or losers usually depend on the case… and the lawyer.  I got a universal thumbs down. 

         And many lawyers who were either deeply cynical or keenly perceptive, or both, rejected my idea because they supposed I had an ulterior motive.  Please… well, the next logical step is judicial anonymity.  Hold on.  I agree that judicial anonymity is inapt when used to describe judges at work, whether presiding on the bench or researching a motion in chambers.  The litigants, lawyers, and the public at large must and do know who is responsible for judicial decisions.  (Note to FBI and CIA operatives assigned to monitor this column:  The above acknowledgement is not applicable to the United States Foreign Intelligence Surveillance Court (FISC).)  But after much thought, I endorse judicial anonymity for judges when they are not judging. 

         This is a hard goal to achieve and, in most cases, impossible.  Case in point:  During the Pleistocene Epoch, when I was the supervising judge of the Los Angeles Traffic Court, I was shopping one Saturday morning in a vitamin store.  I was unshaven, wearing faded shorts and an old T‑shirt on which was an insulting quote.  Suddenly I heard the manager of the store pointing in my direction and shouting for all the patrons to hear, "He's a judge."  I tried to hide behind a display of glucosamine sulfate.  When the manager next announced that I had sentenced him on a DUI, I quickly swallowed several Valerian tablets. 

         I got a break.  He then said that I was fair, treated him well, and that he had changed his ways.  The patrons in the store smiled and congratulated the store manager, not me.  He rang me up and walked me outside.  We shook hands and he lit a cigarette.  I thought it best not to deliver my anti-smoking sermon.  

         I would rather not discuss the time I and another person were the only ones in a men's room in the basement of a theater during which a ballet was being performed upstairs.  We were two urinals apart.  Apparently neither of us could wait for the intermission.  We both knew we had seen one another before, and, while washing our hands, our lights of recognition flickered simultaneously.  He was a problematic defendant who had repeatedly appeared before me on probation violations.  I cursed myself for not buying an adequate supply of saw palmetto at the vitamin store.  He said, "You're the judge," and I mumbled something like, "Hope things are going well for you."  I quickly left the men's room and made it up the steps, three at a time, to the lobby.   

         Judicial anonymity is particularly helpful when the judge in question says something stupid in public.  If no one knows the person speaking is a judge, it is less likely a faux pas, a gaffe or indiscretion will be disseminated.  That is why prudent judges should be circumspect about what they say in public.

         Anonymity has not been easy for me during the past few years.  Music has exposed me to public scorn… I mean, scrutiny.  I wisely pursued a career in law over music.  So did numerous talented musicians who did not want to starve to death.  Thanks to conductor Gary Greene, Esq., we now regularly appear in public playing in the Los Angeles Lawyers Philharmonic or the Big Band of Barristers.  I am the piano player. 

         I can't help bragging about these two musical aggregations that display such a wide breadth of talent.  Shortly after it was formed, the Big Band of Barristers won first place in the Battle of the Bands sponsored by the American Bar Association at the Art Institute of Chicago in 2012.  We were so good that the guitarist in Picasso's "Man with a Guitar" tried to step out of the painting to join the band.

         I could have used a full measure of anonymity a few weeks ago when I performed with another talented group of lawyers.  I play in a quartet that backs a singing quartet.  The instrumentalists are Jerry Levine on drums, Bill Ryan on guitar, and Eric Schaeffer on bass.  We are called "The Just-Us Quartet."  The singers are called "The Singers In Law."  Clever, huh?  Our arranger Jerry Ranger gets some credit for the catchy titles.  The singers are John Blumberg, Linda Hurevitz, Barbara Gilbert and Ken Freundlich.  They are all lawyers, except my wife Barbara, who was once a court reporter to pay for her ballet and singing lessons. 

         We were performing for a sizeable audience in Pasadena a few weeks ago.  The audience was attentive and appreciative.  But when it came time for a piece in which the musicians played a number without the singers, some people in the audience began talking.  After the number, it was my job as emcee to bring the singers back on stage.  I guess I forgot that an audience at a concert is not the same as spectators in a courtroom. 

         Two ladies were chatting away as I approached the microphone.  In a loud voice I  said to them, "Can you hear me?"  They kept talking.  I repeated the question in a louder voice.  They finally acknowledged me and said "yes."  I responded.  "I can hear you."  It got a laugh.  I could have left it there, but I said a few other things like, "In fact, I could hear you during our last piece."  I ignored the little voice inside my head that said "enough," but, hey, I was anonymous, or so I thought.  One of the singers had inadvertently mentioned they were taking a break just before  our instrumental number, so I suppose that was taken as a cue that it was OK to talk.  The ladies were embarrassed.

         The concert ended and we got a standing ovation.  While we were packing up, a gentleman approached me and said good naturedly that I was a fantastic pianist… "a better pianist than a judge."  He told me he had appeared in my court many times in the past.  I said in the same friendly tone, "You must have lost many cases."  He said that he did, but he also won a few.  We both agreed that in those instances I was a damned good judge. 

         We laughed, shook hands and he left.  Then I saw him across the room holding hands with one of the talkative women. She looked in my direction and was smiling.  Not smirking.  More of a Mona Lisa smile.  I moved in their direction, but they were out the door and gone.  Maybe here the absence of anonymity was a good thing.  It taught me a lesson.


Judges are generalists, although at times they, I mean we, act like generals.  Someone once remarked that when the battle in the trial court is over, the justices from the Court of Appeal come down from the hills on their horses and shoot the wounded.
          But getting back to judges as generalists.  We often decide cases involving arcane subjects in which our knowledge or skill is severely limited.  For me, it is the esoteric subject‑‑spelling.  Yet I wrote one of the leading and most cited and most controversial cases about spelling bees, McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100: 
    Question -- When should an attorney say "no" to a client?  Answer -- When asked to file a lawsuit like this one.
    Master Gavin L. McDonald did not win the Ventura County Spelling Bee. Therefore, through his guardian ad litem, [Fn. 1: We do not hold Gavin responsible.] he sued.  Gavin alleges that contest officials improperly allowed the winner of the spelling bee to compete. Gavin claimed that had the officials not violated contest rules, the winner "would not have had the opportunity" to defeat him.  The trial court wisely sustained a demurrer to the complaint without leave to amend.
    We affirm because two things are missing here -- causation and common sense. Gavin lost the spelling bee because he spelled a word wrong. Gavin contends that the winner of the spelling bee should not have been allowed to compete in the contest. Gavin, however, cannot show that but for the contest official's allowing the winner to compete, he would have won the spelling bee.
    In our puzzlement as to how this case even found its way into court, we are reminded of the words of a romantic poet.
"The [law] is too much with us; late and soon,
Getting and spending, we lay waste our powers:
Little we see in Nature that is ours;
We have given our hearts away, a sordid boon!"
 (Wordsworth, The World Is Too Much With Us (1807) with apologies to William Wordsworth, who we feel, if he were here, would approve.)
    Gavin was a contestant in the 1987 Scripps Howard National Spelling Bee, sponsored in Ventura County by the newspaper, the Ventura County Star-Free Press.  The contest is open to all students through the eighth grade who are under the age of 16.  Gavin won competitions at the classroom and school-wide levels.  This earned him the chance to compete against other skilled spellers in the county-wide spelling bee. The best speller in the county wins a trip to Washington D.C. and a place in the national finals.  The winner of the national finals is declared the national champion speller.
    Gavin came in second in the county spelling bee. Being adjudged the second best orthographer in Ventura County is an impressive accomplishment, but pique overcame self-esteem.  The spelling contest became a legal contest.
    We search in vain through the complaint to find a legal theory to support this metamorphosis.  Gavin alleges that two other boys, Stephen Chen and Victor Wang, both of whom attended a different school, also competed in the spelling contest. Stephen had originally lost his school-wide competition to Victor.  Stephen was asked to spell the word "horsy." He spelled it "h-o-r-s-e-y." The spelling was ruled incorrect.  Victor spelled the same word "h-o-r-s-y." He then spelled another word correctly, and was declared the winner.
    Contest officials, who we trust were not copy editors for the newspaper sponsoring the contest, later discovered that there are two proper spellings of the word "horsy," and that Stephen's spelling was correct after all. [Fn. 2: "[H]orsey also horsy 1: relating to, resembling, or suggestive of a horse 2: addicted to or having to do with horses or horse racing or characteristic of the manners, dress, or tastes of horsemen." (Webster's Third New Internat. Dict. (1961) p. 1093.)]
    Contest officials asked Stephen and Victor to again compete between themselves in order to declare one winner. Victor, having everything to lose by agreeing to this plan, refused.  Contest officials decided to allow both Victor and Stephen to advance to the county-wide spelling bee, where Gavin lost to Stephen.
    Taking Vince Lombardi's aphorism to heart, "Winning isn't everything, it's the only thing," Gavin filed suit against the Ventura County Star-Free Press and the Scripps Howard National Spelling Bee alleging breach of contract, breach of implied covenant of good faith and fair dealing, and intentional and negligent infliction of emotional distress.
    In his complaint, Gavin asserts that contest officials violated spelling bee rules by allowing Stephen Chen to compete at the county level.  He suggests that had Stephen not progressed to the county-wide competition, he, Gavin, would have won. For this leap of faith he seeks compensatory and punitive damages.
    The trial court sustained Scripps's demurrer without leave to amend because the complaint fails to state a cause of action. The action was dismissed, and Gavin appeals.
    Gavin asserts that he has set forth the necessary elements of a cause of action for breach of contract, and that these elements are: "(1) The contract; (2) Plaintiff's performance; (3) Defendant's breach; (4) Damage to plaintiff.  4 Witkin, California Procedure, Pleading, § 464 (3rd Ed. 1985)."
    Gavin's recitation of the law is correct, but his complaint wins no prize.  He omitted a single word in the fourth element of an action for breach of contract, which should read "damage to plaintiff therefrom." (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 464, p. 504, italics added.) Not surprisingly, the outcome of this case depends on that word.  A fundamental rule of law is that "whether the action be in tort or contract compensatory damages cannot be recovered unless there is a causal connection between the act or omission complained of and the injury sustained." (Capell Associates, Inc. v. Central Valley Security Co. (1968) 260 Cal.App.2d 773, 779 [67 Cal.Rptr. 463]; State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. (1970) 9 Cal.App.3d 508, 528 [88 Cal.Rptr. 246]; Civ. Code, §§ 3300, 3333.)
    The erudite trial judge stated Gavin's shortcoming incisively.  "I see a gigantic causation problem . . . ." Relying on the most important resource a judge has, he said, "common sense tells me that this lawsuit is nonsense."
    Even if Gavin and Scripps had formed a contract which Scripps breached by allowing Stephen Chen to compete at the county level in violation of contest rules, nothing would change.  Gavin cannot show that he was injured by the breach.  Gavin lost the spelling bee because he misspelled a word, and it is irrelevant that he was defeated by a contestant who "had no right to advance in the contest."
    Gavin argues that had the officials "not violated the rules of the contest, Chen would not have advanced, and would not have had the opportunity to defeat" Gavin.  Of course, it is impossible for Gavin to show that he would have spelled the word correctly if Stephen were not his competitor. Gavin concedes as much when he argues that he would not have been damaged if defeated by someone who had properly advanced in the contest. That is precisely the point.
    Gavin cannot show that anything would have been different had Stephen not competed against him.  Nor can he show that another competitor would have also misspelled that or another word, thus allowing Gavin another opportunity to win.  "It is fundamental that damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery." (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 294 [175 Cal.Rptr. 767].)
    Gavin offers to amend the complaint by incorporating certain rules of the spelling bee which purportedly show that the decision to allow Stephen to advance in the competition was procedurally irregular.  This offer to amend reflects a misunderstanding of the trial court's ruling. The fatal defect in the complaint is that Gavin cannot show that but for Stephen Chen's presence in the spelling bee, Gavin would have won.
    "The general rule is that it is an abuse of discretion to sustain a demurrer without leave to amend unless the complaint shows that it is incapable of amendment.  [Citation.] But it is also true that where the nature of plaintiff's claim is clear, but under substantive law no liability exists, leave to amend should be denied, for no amendment could change the result." (Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942 [143 Cal.Rptr. 255].)
    The third cause of action, states that plaintiff has suffered humiliation, indignity, mortification, worry, grief, anxiety, fright, mental anguish, and emotional distress, not to mention loss of respect and standing in the community.  These terms more appropriately express how attorneys who draft complaints like this should feel.
    A judge whose prescience is exceeded only by his eloquence said that ". . . Courts of Justice do not pretend to furnish cures for all the miseries of human life.  They redress or punish gross violations of duty, but they go no farther; they cannot make men virtuous: and, as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove." (Evans v. Evans (1790) Consistory Court of London.) Unfortunately, as evidenced by this lawsuit, this cogent insight, although as relevant today as it was nearly 200 years ago, does not always make an impression on today's practitioner.
    In Shapiro v. Queens County Jockey Club (1945) 184 Misc. 295 [53 N.Y.S.2d 135], plaintiff's horse was the only horse to run the full six furlongs in the sixth race at Aqueduct Race Track after racing officials declared a false start. A half hour later the sixth race was run again, and plaintiff's horse came in fifth out of a total of six.
    The Shapiro court held that plaintiff had no cause of action against the race track.  Plaintiff could not support the theory that his horse would have won the second time around if all the other horses had also run the six furlongs after the false start.  Plaintiff was not content to merely chalk up his loss to a bad break caused by the vicissitudes of life.  The lesson to be learned is that all of us, like high-strung horses at the starting gate, are subject to life's false starts.  The courts cannot erase the world's imperfections.
    The Georgia Supreme Court in Georgia High School Ass'n v. Waddell (1981) 248 Ga. 542 [285 S.E.2d 7], decided it was without authority to review the decision of a football referee regarding the outcome of the game. The court stated that the referee's decision did not present a justiciable controversy.  Nor does the decision of the spelling bee officials present a justiciable controversy here.
    Our decision at least keeps plaintiff's bucket of water from being added to the tidal wave of litigation that has engulfed our courts.  [Fn. 3: Judge Irving Kaufman of the Second Circuit Court of Appeals, in a speech, has spoken of the alarming tidal wave of litigation in this country that shows no signs of abatement. (Cherna v. Cherna (Fla.Dist.Ct.App. 1983) 427 So.2d 395, 396, fn. 2.)]
Sanctions -- A close call
    Causation has been counsel's nemesis.  Its absence makes Gavin's quest for "justice" an illusory one.  The lack of causation in the complaint is the cause for dismissal of the complaint.  Counsel could not show us or the trial court how an amendment could cure the complaint.  The lesson should have been learned at the trial court.  As the law disregards trifles (Civ. Code, § 3533), so, too, one should not trifle with the Court of Appeal.  The filing of an appeal here, for a case so trivial, and so lacking in merit, makes it a likely candidate for sanctions.
    To counsel's credit, we are convinced that he did not prosecute this appeal for an improper motive or to delay the effect of an adverse judgment.  He, therefore, at least avoids two criteria set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637 [183 Cal.Rptr. 508, 646 P.2d 179]. This case, however, lacks merit, and we cannot conceive of a reasonable attorney who would disagree with this appraisal.
    Falling within a criterion of Flaherty, however, does not in and of itself compel sanctions.  The Flaherty court warned that "any definition must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. . . .  An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.  Counsel should not be deterred from filing such appeals out of a fear of reprisals." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
    It is creative and energetic counsel who from time to time challenge existing law and question past policies.  This insures that the law be a living and dynamic force.  Although noble aims were not advanced here, we are mindful of the caution in Flaherty that the borderline between appeals that are frivolous and those that simply have no merit is vague, and that punishment should be used sparingly "to deter only the most egregious conduct." (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650-651.) We therefore decline to impose sanctions, but we hope this opinion will serve as a warning notice for counsel to be discerning when drawing the line between making new law or wasting everyone's time.
Advice to Gavin and an aphorism or two
    Gavin has much to be proud of.  He participated in a spelling bee that challenged the powers of memory and concentration.  He met the challenge well but lost out to another contestant. Gavin took first in his school and can be justifiably proud of his performance.
    It is this lawsuit that is trivial, not his achievement.  Our courts try to give redress for real harms; they cannot offer palliatives for imagined injuries.
    Vince Lombardi may have had a point, but so did Grantland Rice -- It is "not that you won or lost -- but how you played the game".
    As for the judgment of the trial court, we'll spell it out. A‑F‑I‑R‑M‑E‑D.  Appellant is to pay respondent's costs on appeal. 

          No doubt the McDonald case was recently in the minds of officials at the Scripps National Spelling Bee contest.  As reported in the Los Angeles Times last month, two students tied for first place by spelling 11 "championship words" correctly.  I couldn't spell any of the words in the list, words like "thamakau," "hippocrepiform," "sprachgefuhl," and "pyrrhuloxia."  I don't even know what they mean.  And I don't want to. 
          What struck me about the contest was that the two winners shared first prize.  This sensible result proves that appellate opinions make a difference.  This confirrms my faithe in our judicial sistem.