Damning With Faint Praise – The Ongoing Saga of Bell v. John Doe

Abomination SnowmanCan’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, and in addition to suing for breach of contract and fraud, I added a claim for theft under Penal Code § 496(c), which provides for the recovery of treble damages and attorney fees. We prevailed, and the trial court awarded just under $700,000.

Defendant appealed just on the application of the Penal Code, and on January 15, 2013, the Court of Appeal 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.

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 26 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 of the Court of Appeal. 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?

I’ll let you know if the Supreme Court decides that our verdict was an abomination.

Could life at a big firm ever be this much fun?

[UPDATE:]  The Supreme Court apparently determined that our verdict was not an abomination, and on April 10, 2013 not only DENIED the request 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 take that to mean the Supreme Court is 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.

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