Metropolitan News-Enterprise


Tuesday, June 28, 2022


Page 8


Perspectives (Column)

It’s Hogwash


By Roger M. Grace


The L.A. Times Derides Cooley

A headline in the Los Angeles Times reads: “TV correspondent, accused of asking child for naked photos, hired ex-D.A. as consultant.”

The June 21 story by staff writer James Queally says that a criminal defendant—who is seeking a plea bargain under which he would not have to register as a sex offender if convicted based on emails he allegedly sent to a minor—has “picked up an unlikely ally in that bid: former Los Angeles County Dist. Atty. Steve Cooley, who over the last year has emerged as one of the leading voices in the movement to recall current Dist. Atty. George Gascón.”

The article continues:

“The recall movement, which now seems to have a chance to collect enough signatures to force Gascón into a recall election, has largely been animated by the idea that the district attorney’s policies are harmful to crime victims. Cooley’s decision to work with a defendant accused of a sex crime involving a child has angered many prosecutors and recall supporters, who say his actions are hypocritical.”


There is nothing inordinate or hypocritical in a former district attorney acting as a consultant to lawyers representing a person accused of a crime. Those accused of crimes have a right to a defense; former district attorneys have a right to make a living.

As it happens, Cooley is devoting countless hours, on a pro bono basis, to the cause of victims’ rights. Being allied with the defense in a criminal case hardly makes him pro-crime.

What the Times misses in its desperate effort to protect Gascón—whom it endorsed for election and for whose conduct in office it has assumed the role of chief apologist—is that while a former district attorney might well act on a criminal defense team, it is unheard of, and improper in the extreme—if not in defiance of statute—for a current district attorney to do so. It cannot be denied that Gascón (and not Public Defender Ricardo Garcia) is the county’s chief advocate for the interests of criminal defendants and convicts.

The Times’s trumped-up exposé was, I submit, disgusting. It was a transparent effort to discredit the recall movement by maligning a chief proponent of it. The newspaper is stooping low, quite low.


Justice Bendix Skirts Contractual Language

“HOGWASH” also describes the content of a June 16 unpublished Court of Appeal opinion by this district’s Div. One in Hollander v. XL America Group, B308142. The author is Justice Helen Bendix.

Gail and Stanley Hollander in 2004 purchased, in London, three paintings by the German artist Martin Kippenberger for $289,000; in 2005, the couple insured the works with XL Specialty for $399,000 ($133,000 each); the works were shipped to Los Angeles; on Jan. 9, 2006, an art handler stripped cardboard from each painting, assuming it to be packaging; the cardboard was, in fact, framing, an integral part of the works.

 XL shipped the works to Germany where the Estate of Kippenberger restored them and shipped them back. The insurer paid for the shipping and restoration.

The Hollanders put in an insurance claim, alleging a diminution in value of the paintings. XL’s expert apprised the drop in value to amount to be $9,975, but the insurer made a statutory offer of compromise for $19,950.

The policy provided:

“Loss in value, if any, after Restoration, to be agreed upon between the Insured and the Company,” adding:

“In the event the Insured and the Company cannot agree on the amount of loss in value, the Property will be sold at public auction and the net proceeds shall inure to the Insured. The Company will pay the Insured the difference between the amount so realized and the insured value of the Property.”

The Hollanders declined to obtain their own appraisal. They caused the works to be auctioned, and they fetched a price of $217,150. That meant, the couple asserted, that XL owed them $181,850, the difference between the scheduled value and what was realized at auction.

Los Angeles Superior Court Judge Randolph Hammock instructed the jury:

“ find that the Hollanders did not try in good faith to reach an agreement with XL Specialty on ‘loss in value,’ if any, following the restoration, then the Hollanders are not entitled to collect from XL Specialty the $181,850 difference between the scheduled value of the paintings under the policy and the auction proceeds received by the Hollanders. In such event, the Hollanders are only entitled to collect whatever amount you find to be the reasonable ‘loss in value,’ if any, to the paintings following the restoration.”

Pursuant to the jury’s verdict, Hammock ordered entry of judgment for Gail Hollander (acting on her own behalf and the estate of her husband, who died in 2016) for $19,500 and awarded to XL its post- and pre-offer costs in the amount of $664,862.61.

Bendix wrote:

“[W]e conclude the court’s instruction was erroneous because it ran afoul of a key limitation on the scope of the covenant of good faith and fair dealing, that is the covenant cannot be implied to defeat the purpose of the contract.”

Requiring the Hollanders to negotiate in good faith, she declared, would “frustrate” the “expeditious process to determine the compensation owed to the Hollanders under the policy in the event of a partial loss to fine artwork” by auctioning the works.

Every first-year law student learns that the covenant of good faith and fair dealing is inherent in every contract. The contract in issue had two components: 1.) the parties are to negotiate; 2.) if negotiations are unsuccessful, the art works are sold at auction and, if the sale price is less than the stated value, the insured receives the difference between the two amounts.

Bendix said there is no implied covenant of good faith and fair dealing as to the first component because that could frustrate the simple remedy provided by the second component. In so doing, she fails to give any effect to the first component. Yet, it exists.

Parties can always negotiate before litigating. That doesn’t have to be in the contract. By virtue of the fact that it is in the contract evidences the parties’ mutual intent that negotiating was mandatory.

To declare that no covenant of good faith and fair dealing attaches to that first component constituted an arrogant act of re-making the contract, in effect excising a component upon which the parties had agreed. So much for the notion of the sanctity of contracts.

Seeking a rehearing is Hollander, the party who prevailed on appeal.

Bendix’s opinion spurns her request that the Superior Court be directed, on remand, to enter judgment in her favor in the amount of $181,850, explaining:

“Although upon a retrial, the trial court’s instructions must conform to our interpretation of paragraph 8 herein, there may be other issues relating to the breach of contract claim not raised in the first trial or considered in this appeal. Accordingly, we are in no position to enter judgment in Gail’s favor, and leave the scope of the retrial of Gail’s claims to the sound discretion of the trial court.”

Hollander’s lawyers—A. Tod Hindin, Karen L. Hindin, and Jeffrey I. Ehrlich—now argue, in seeking a modification of the opinion:

“It is a fundamental tenet of appellate procedure that a party cannot be relieved from the adverse effect of a judgment from which it has not appealed. Here, the jury expressly found that XL Specialty breached its insurance policy with the Hollanders. The trial court then entered judgment against XL Specialty on that finding, among others. XL Specialty never appealed from that finding or from the judgment that incorporated it. Accordingly, XL should have been precluded from obtaining appellate review of that finding.”

The lawyers go on to say:

“The only error in the jury’s breach-of-contract verdict against XL Specialty was the amount of damages on that claim. Hence, if that amount were in dispute, it would be appropriate for this Court to remand with instructions to retry the breach-of-contract claim, with the retrial limited to the determination of damages.”

Bendix, having erroneously siphoned the covenant of good faith and fair dealing from the first component of the dispute-resolution clause—thus rendering mandatory a fixing of damages based on the difference between the stated value and the sale price at auction—it is unimaginable how a retrial could yield any verdict other than one for $181,850.


Chief Justice Wants More C.A. Members

Chief Justice Tani Cantil-Sakauye on June 10 declared that California needs more Court of Appeal justices, either through adding members in the six existing districts or creating a seventh district. In so proclaiming, she pointed to funding for 23 new Superior Court judgeships contained in the governor’s proposed budget.


The current Court of Appeal justices and their ghost writers apparently have plenty of spare time on their hands, or they would not expend their energies so wastefully as they do.

Time and again, they will set forth in opinions, sometimes several pages in length, the facts involved in the controversy and the contentions, only to dismiss the appeal based on mootness or some other reason. Art. VI, §14 of the California Constitution does say that “[d]ecisions of the…courts of appeal that determine causes shall be in writing with reasons stated,” but the justices determine no “cause” where an appeal is dumped.

Members of the Fourth District’s Div. Two must indeed have a great deal of time to fritter away. On Thursday, the Riverside-based division filed a 33-page majority opinion and a five-page dissent in In re M.S., E077740, a case in which the issue was the appropriateness of a permanent placement order for a dependent child who was, at the time of the adjudication in the Superior Court, age 17.

The majority opinion by Acting Presiding Justice Richard T. Fields notes at the outset that the minor “will turn 18 years of age in June 2022.” Well, this happens to be June of 2022. Accordingly, the matter discussed in the June 23 opinion was to become moot at any time between the day following the issuance of the opinion, that is, last Friday, and the day after tomorrow.

Yet, we have Div. Two’s June 23 opinions containing full-fledged treatment of a controversy.

Was the court’s discretion exercised to resolve a moot matter in order to provide future guidance? No. The opinions were not certified for publication.

This patently pointless exercise in purported decision-making goes beyond hogwash. It enters the realm of the “Twilight Zone” or what Alice encountered beyond the mirror.

The Ninth U.S. Circuit Court of Appeals, regularly—nearly daily—disposes of facially unmeritorious appeals via memoranda opinions, in which meticulous statements of facts and contentions are absent.

Little noticed is that California courts of appeal also have such an option available to them, consistent with determining causes “with reasons stated.” The California Rules of Court Standards of Judicial Administration, standard 8.1, provides that those courts “should”—note the word “should”—“dispose of causes that raise no substantial issues of law or fact by memorandum or other abbreviated form of opinion.”

It elaborates that this stricture applies to:

“(1) An appeal that is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application; [¶] (2) An appeal that is determined by a controlling decision which does not require a reexamination or restatement of its principles or rules; or [¶] (3) An appeal raising factual issues that are determined by the substantial evidence rule.” Only the Fifth District Court of Appeal with frequency avails itself of this mechanism for disposing swiftly of patently meritless appeals. Other districts invoke it rarely, if at all.

And there are opinions stuffed with detailed facts, unnecessary to a resolution of the appeals, and recitations of contentions that need not be reached.

(How beneficial it would be if, in the Second District, Presiding Justice Arthur Gilbert and Justice John Shepard Wiley Jr. gave writing lessons to some of their less succinct colleagues.)

Until efforts are made among the courts of appeal to more conservatively utilize resources, a call for hiring more justices cannot be taken seriously.

“Hogwash” is a term of ancient origin originally referring to swill fed to pigs, a concoction that only they would swallow. It now connotes propositions founded on nonsense—ones that only fools will accept.

Court of Appeal Justice William W. Bedsworth (one of the state’s ablest appellate court jurists, in my view) utilized that invective in a 2006 opinion. Rebuffing a contention, he remarked: “That is—not to put too fine a point on it—hogwash.”

Then-California Supreme Court Justice Joyce Kennard (whose competence is, lamentably, unmatched by any current member of the state’s high court) preferred to utter “Fiddlesticks” in a 1998 opinion repudiating a contention by a party.

Court of Appeal Presiding Judge Robert Gardner (a premier jurist in the state’s history, now deceased) in 1980 reacted to a proposition by grunting, “Balderdash.”

Those terms, as well as “falderal,” “baloney,” “claptrap” “bosh,” and “tommyrot”—as well as stronger terms—apply to the Times’s hatchet job on Cooley, Bendix’s opinion in Hollander, and chief justice’s assertion that more Court of Appeal justices are needed.


Copyright 2022, Metropolitan News Company