Obscure California Law, Part I.

"Superfluity does not vitiate."

(California Civ. Code Section 3537.)

So there.

Back from Alaska.

I have just returned to the continental United States.

I plan to blog on some adventures from the Great White North, and some recommended readings.

Best wishes.

Cost v. Benefit.

This summer movie season the story has been the precipitous decline in moviegoers.

Not surprising. I have less enthusiasm for the theaters for several reasons, and I suspect that some or all of these play at least a part in this decline. I have summarized them into a handy alliteration--the 5 "Cs".

1. Cost. The steady march upward of a movie ticket is as nearly as predictable as the sun rising. I try to cut costs with matinees--shows starting on or before 5:15, but even those are no fewer than $7.00. If I'm going to pay nearly $10 dollars, there should be something else thrown in like a free detailing of the car while viewing. Short of tangible benefit, I'll save the dollars.

2. Commercials. Adding insult to fiscal injury, as if the extraction of dollars at the ticket window wasn't enough, these folks inundate you with incessant commercials, as if you are watching broadcast television, or listening to the worst violators, A.M. radio broadcasters. Cut the commercials, friends, people are paying the freight to avoid them.

3. Competition. The tipping point between renting and going to the theater is getting very close. One can participate in Blockbuster online, say, at the monthly rate of about $15 (before tax) and watch several movies a week. One movie in the theater at nearly $10 quickly outstrips the rental model.

4. Cacophony. It's getting worse. It used to be that the greatest irritant in the movie house was listening to some uncouth fellow chomping on popcorn with his mouth open. I pine for the good ole' days. It's almost a certainty now that at least one, if not multiple cell phone calls, will intrude on the movie. I realize it's compelling to hear someone talk about Paris Hilton's latest exploits, but I didn't pay for that form of entertainment. What I did pay for is being drowned out by some inane banter on the cell phone(s)--following, of course, the cacophonous ring tones that violate the movie soundtrack/dialog. Cell phones simply add to the other noise of impromptu conversations, children crying or running around the theater, and yes, the pleasant sounds of mastication.

5. Cannibalization. Critics traditionally bemoaned sequels. This phenomenon alone did not perturb me. Couple sequels, however, with ceaseless and curious remakes of old movies (Longest Yard, Herbie), ancient television shows (Bewitched), comic books (too many to list), and perhaps even song lyrics or album covers, it's rather derivative and distressing. Given the pool of incredibly talented, smart and creative people who are desperately trying to break into Hollywood, it's staggering that more original fare doesn't hit the big screen. Recycling becomes the order of the day, and not for environmental purposes. To the contrary, this summer's recycled fare should be cited for its own brand of pollution.

Now It's Official.

"Typos happen."

(Gunn v. Mariners Church, Inc. (June 21, 2005) Fourth District, Division Three, Case No. G032304 [2005 WL 1464215].)

If you need to garner support for this proposition, you can now cite (but not in court papers) this California appellate court order modifying Justice Sills' dissenting opinion regarding Mariners' Church in Irvine, California.

Here's the context in which "typos happen" arose. "'Surely, if the free exercise clause means anything, it means that a church should be put in the position where it must denounce its own theology using the pejorative language selected by a fired minister!' should, of course, be modified to say: 'Surely, if the free exercise clause means anything, it means that a church should not be put in the position where it must denounce its own theology using the pejorative language selected by a fired minister!' Typos happen. " (Emphasis supplied.)

Blawg Review.

Legal Commentary hosts the latest Blawg Review (14). Link to read a collection of engaging law-related posts, including one of mine.

Fear and Greed.

It's been said that fear and greed are primary motivators. I would add love (and perhaps some others), but I won't quibble with the general aphorism.

Over the past week, I have represented clients in mediations. (A mediation is essentially a settlement conference before a neutral who doesn't decide the case, but seeks to get the parties to agree.)

Mediations are a petri dish of fear and greed.

For example, in each of these mediations and almost every other one I have attended, the mediator tries to make the defendant fear a worst case scenario. "This catastrophe could happen to you." Or, "You could be hit with a huge judgment, embarrassing publicity, among other things."

Conversely, if you represent plaintiffs, they try to appeal to their greed. If you settle, you will get money in hand, and probably more than you might expect to achieve at trial. Grab the cash now!

Whether you are representing a plaintiff or defendant, the conversation usually includes a slap at juries. These disparaging comments can range from, "You never know what they're going to do" (a truth), to "Do you really want a bunch of brain dead bozos deciding your case?" Not kind.

But, permeating it all, the mediators employ a mixture of fear and greed to get the participants to settle, I wonder if this technique is dishonest or honest. It's honest if litigation is truly totally unpredictable, random or chance. If it is as chaotic as mediators present it, is this the best way or even a good way to resolve disputes?

Book Reviews: Divided by Faith.

The old saw goes that America is no more racially segregated than at 11:00 a.m. on Sunday mornings.

Springboarding from this sentiment, Divided By Faith by sociologists Michael Emerson and Christian Smith attempts to lay the blame for this on white evangelicals and evangelicalism.

Two fundamental flaws permeate the book. First, it is a political polemic masquerading as a sociological study.

The authors reveal their agenda most starkly in chapters three and four of their book. For example, they write: “White evangelicals are more willing to pursue a white conservative political agenda than to be reconciled with their African-American brothers and sisters.” (p. 66; emphasis added.) They continue: “[D]eclaring that we are equal without repairing the wrongs of the past is cheap reconciliation.” (p. 67.) As such, they diagnose the problem as a “political” one, which may only be remedied by political solutions “dealing with the systems and structures” (p. 67) with racial groups inevitably competing against each other. In other words, Emerson and Smith seem to argue that a change of politics is a prescription to the maladies they identify.

The obvious implication is that their political agenda would do more to reconcile the races. Emerson and Smith continue in this vein in chapter four, where they insist that racism, including within the Church, must be rectified on a societal and governmental basis—read: “affirmative action.” (p. 79.) They criticize unnamed opponents of this racially discriminatory practice “because they [affirmative action programs] go against evangelical understanding of accountable freewill individualism”. (p. 79.) This accusation is unsupported by any footnote, endnote or authority, and represents a species of lazy “straw man” argumentation that is really beneath these academics. There are many reasons to oppose "affirmative action", including moral, biblical, constitutional, and logical, that are not rooted in a mere “freewill” theology or ideology, as the authors accuse.

Second, Emerson and Smith precariously build their whole study on the basis of a poorly defined and unworkable definition of “evangelicals”. “Evangelicals as we employ the term here, are also those who call themselves such.” (p. 3.) There is a word for such a formulation: tautology. It is utterly unhelpful to the reader, and ultimately irresponsible, as explained below.

Emerson and Smith hint at further focusing their definition when they state that “evangelicals believe that Christ died for the salvation of all, and that anyone who accepts Christ as the one way to eternal life will be saved.” (p.3.) It is difficult to ascertain with certainty whether Emerson and Smith include into their definition “mainline” Protestant denominations or Roman Catholics, who would generally agree with these salvation propositions, as well as others. They do suggest, however, that these religious traditions are included into their definition of “evangelical.” (p. 3.) As a result, Emerson and Smith over-include almost any Christian into their definition and thereby dissipate their definition into near insignificance. After all, if just about everyone fits the definition, it is not really an “evangelical” problem, but a much broader one for which true evangelicals are being scapegoated.

George Barna has defined “evangelicals” much more narrowly than Emerson and Smith. He posits that about 7-8 percent of the United States are “evangelicals”. Thus, if one were to understand the term as Barna and many others who agree with his definition encompassing only 7-8 percent of the population, then it inexorably follows that Emerson and Smith’s indictment is misdirected and erroneous. With only 7-8 of the population and a concomitant lack of real political power, they cannot be responsible for the systemic racialization that these writers lay at their feet. To the contrary, evangelicals, as I understand the term, are very much opposed to racism and actively seek to eradicate it in their own lives and otherwise.

Angels in the Courthouse: The Opinion.

As reported here (pretty close to first), the Angels won the latest inning in its legal contest with Anaheim.

1. The Recap.

In short, the Fourth District (Third Division) Court of Appeal refused to vacate the trial court's pretrial ruling in favor of the Angels. Earlier, the City had requested that the Orange County Superior Court block the team's name change to the Los Angeles Angels of Anaheim. However, the Superior Court judge ruled that the name change "technically complied" with the terms of the lease between Anaheim and the Angels, which required that the Anaheim be "included" in the name.

So, the municipality filed a petition for writ of mandate prior to the trial to overturn the trial court's ruling. The trial court accepted the petition (an unusual occurrence), and the matter was argued on March 28, 2005. (Here's my account.)

Justice Sills suggested at the hearing that the parties try to resolve their dispute before a mediator. The parties attempted mediation, but the matter did not settle. As a result, the matter returned to the appellate court to decide the writ petition within 90 days of the oral argument. That decision materialized last week. Read the unpublished opinion here.

2. The Majority Opinion.

Essentially, the court split 2-1. Two justices (Aronson and O'Leary) hung their hats on the notion that trial courts deciding preliminary injunctions like this are entitled to substantial deference, and that this judge did not "abuse [his] discretion" in ruling for the team. They wrote: "Our review is narrowly tailored to determining whether the court abused its discretion in denying the preliminary injunction. ... The trial court's decision...was supported by substantial evidence and was well within the bounds of reason." They continued: "[T]he name Los Angeles Angels of Anaheim 'technically' complies with the express Lease provisions. ... [I]f the parties intended to designate Anaheim as the exclusive geographic component of the team name, use of the word 'include' ... was not an effective means to convey that intent."

They were quick to note that the parties should not take this as the final word, appropriating sports metaphors, of course. "Because of our inquiry's narrow focus, however, our decision today does not declare any party the ultimate victor. Indeed, at trial, today's opinion places neither party ahead or behind in the count."

3. The Dissent.

Justice Sills agreed only with the result--i.e. not to overturn the trial court, but only because it was too late to do anything about it. In fact, Justice Sills questioned at oral argument whether the court could do anything as of that date--March 28, 2005. The situation did not improve with time. As the season marched on, it became apparent that the City's petition was doomed.

The following encapsulates Justice Sills' position on the merits: "One doesn’t need to attend law school to know that language requiring Anaheim be included as part of the 'name' of a major league baseball team necessarily precludes subordination of Anaheim to that of another city in the team’s name. Journalists know that, English teachers know that and Joe Sixpack knows that. The 'Brooklyn Dodgers of Los Angeles' would not be a permitted name if Los Angeles were the beneficiary of a similar clause. The language of this contract is susceptible to no other reasonable interpretation. Anaheim bargained for something more than being a mere hiccup after the words 'Los Angeles Angels.' When preceded by 'Los Angeles Angels,' the words 'of Anaheim' effectively drop from being included in the team name and become nothing more than an optional prepositional phrase. Only the sophistry of lawyers allows such a result."

Where do we go from here? The trial is set for November 7, 2005. Justice Sills stated: "It is extremely important that the trial in this case, now scheduled for the Fall of 2005, go forward."