Can’t a guy get a few minutes to enjoy his victory?
As discussed in greater detail here, we forged an important precedent as regards the application of Penal Code § 496(c). Our client loaned the defendant $202,500 that was never repaid. Sometimes people just can’t repay their loans, and for such circumstances a breach of contract action is appropriate. But based on the facts, it was clear the defendant had not intended to repay the loan, and had used a false artifice to secure the loan. I just wasn’t satisfied by the thought that the worst that would happen to him was to give back the money he had received. I could have added a claim for fraud, but that can be a challenge to prove, and the client would be out of pocket for any attorney fees. Instead, I dug around in the law and found a criminal code that seemed perfect. Penal Code § 496 has to do with receiving stolen property. In essence, that is what defendant had done. He had induced the plaintiff to turn over money, with the promise that its use would guarantee its repayment. Best of all, section 496(c) provides for recovery of attorney fees and treble damages.
It was a hard fought victory to get the judge to go along with my novel use of this code section, but he begrudgingly agreed that there was no reason not to. We prevailed, and the trial court awarded just under $700,000.
Defendant appealed just on the application of the Penal Code, but the Court of Appeal (again, begrudgingly) affirmed the judgment and our interpretation of that section, holding that a civil claim for theft can be pursued even if there has been no criminal conviction, and that theft by false pretense qualifies as a theft under section 496(a). This was the first published opinion dealing with the award of treble damages under this Penal Code section, so we were justifiably quite excited, and poured ourselves some champagne.
But before the champagne corks had even returned to earth, I got a letter from counsel for Defendant, sent to me but addressed to my client, with the usual posturing about how the judgment would not hold up (sort of like the letter that was sent before the appeal to the Court of Appeal):
Your judgment is not settled. Although the Fourth Circuit Court of Appeal affirmed the judgment, my client is being courted [well that’s gotta feel good] by firms willing to take the case up to the Supreme Court [please line up to the left]. Your attorney is very intelligent [please, I’m blushing] and very skilled [oh stop], but so are many other attorneys in California [oh yeah? name five] with a higher amount of appellate experience [I’ve been doing this for over 30 years, so they must be really old], one of which is a well-known appeal lawyer [Vinny Gambini?] who has been brought in by others who have noticed the case and wish to dispute what is considered an abomination of law [well I, wait . . . what now?].
Then came a motion to depublish the opinion. All Court of Appeal opinions are “published” in the sense that you can read them on-line, but the Court of Appeal decides whether an opinion is deemed to be published or unpublished. Only published opinions can be cited as authority in subsequent cases. If the opinion in our case remained published, then it would impact all future cases in California on the topic. If unpublished, it would still be a victory for our client, but that would be as far as it goes. Only 15% of opinions are published, so it’s a badge of honor for an attorney to have an opinion from one of their appeals published. It means that the Court recognized that this was a clarifying interpretation of a particular point of law.
An attorney with no relation to the action or parties filed a letter brief requesting that my hard-earned opinion be depublished, stating that it was neither “fair or soundly reasoned.” Easy there buddy, that’s my reasoning you’re talking about, as well as Judge James Di Cesare (clearly an outstanding legal mind since he agreed with me) and Justices Fybel, Aronson and Presiding Justice O’Leary (ditto).
Well Mr. Not Soundly Reasoned, you concede that victims of theft “indisputably have standing” to bring a civil action under section 496(c), but you assert such action is available only after a defendant has first been criminally convicted for theft. So you agree that the award of treble damages is appropriate (at least under the Legislative intent) where a theft has occurred. If it is appropriate to award treble damages when there has been a theft, how does it become inappropriate if the theft is only proven civilly? Why should a victim’s damages turn on whether the police arrest and the District Attorney prosecutes? Where’s the sound reasoning in that?
The Court of Appeal that renders the opinion decides if it should change its mind and depublish the opinion, and if the matter is taken up by the Supreme Court, it can do the same. The Court of Appeal left the opinion as a published opinion, and defendant then sought review by the Supreme Court.
Ultimately, the Supreme Court determined that our verdict was not an abomination, and not only refused to depublish the opinion, but on its own motion ruled that it will not review the opinion of the Court of Appeal and, to put a fine point on it, stated that “the matter is now final.”
I took that to mean the Supreme Court was saying, “Mr. Morris’ legal reasoning is the best we have encountered since California became a state, and there is no way we would ever presume to review it even if you ask us to,” but I could be reading too much into it. I guess all the appeal attorneys who were courting the defendant will now take their chocolates and flowers and go home.