by Justice William W. Bedsworth
I am the very model of a modern Major General,
I’ve information vegetable, animal, and mineral,
I know the kings of England, and I quote the fights historical
From Marathon to Waterloo, in order categorical.
That’s Gilbert and Sullivan. Pirates of Penzance. And while I would appreciate it if you didn’t draw the analogy out very far because the character it refers to is pretty much antithetical to the way I like to see myself, it explains what I’m about to say.
I am the very model of a modern legal eagle ... ul.1
I do my legal research online and I write at a keyboard. I can track down a citation, spell LexisNexis without being distracted by the misspelling of “nexus,”2 and I don’t Tinder, Tumblr, Instagram, Ashley Madison, or Pinterest. I have met the 21st Century and it is mine.3
Which is really too bad. I’m not all that fond of the 21st Century. It isn’t nearly as much fun as the 20th. The fact I’m going to live out my days in the least fun century since the 12th does not warm the cockles.4
Computers are part of the problem. Oh sure, if you want to watch kittens snuggling with polar bears or elephants playing the piano, it’s great. If you want to play Scrabble®5 or look at naked people or tell everyone where you’re eating, it’s great.
But for intellectual humor—the kind of fun we judges and lawyers most like to have—you need books. And the 21st Century is swallowing books like a shark going through herring. Allow me to illustrate the problem.
As I said, I do my legal research online. But once I find cases, I like to read them in an actual book. I can no more read by scrolling than I can dance sitting down. I need pages to turn. I need covers to slam when a court says something I don’t like. I need something to throw against the wall when that court turns out to be the Supreme Court.
Computers don’t provide any of those things.
And when you throw a computer against a wall after reading Citizens United, the state threatens to dock your pay and report you to the Commission on Judicial Performance ... I’m told.
And you know what else you miss out on? Serendipity.
There is no serendipity in looking up a case online. You type in the citation, the case comes up, you read it. No fun. Monks in the 12th Century had more fun than that.
But when you go looking for a case in a book, you never know what you’re going to get. You go looking for IRMO Olson, for example, you just may overshoot and find Szadolci v. Hollywood Park Operating Company, 14 Cal. App. 4th 16 (1993). And if you do, you’re in for a helluva good time.
To appreciate Szadolci, you have to understand the ancient Chinese custom of majie. As explained to me, majie means “to curse the street.” In China, where family ties and Confucian social customs often prohibit hurling imprecations at the natural target of one’s anger, it is considered acceptable to go outside and “curse the street.” It is not unusual to find someone standing in the road yelling at the pavement.6
Which is probably what James Farenbaugh’s victims—and, come to think of it, probably Farenbaugh himself—were doing on June 15, 1989. Never heard of Farenbaugh? Well, if you’re doing your research online, you probably never would.
James Farenbaugh is the anti-hero of Szadolci v. Hollywood Park Operating Company. Jim went to Hollywood Park race track on June 14, 1989, not to play the ponies, but to play the players.
He put down $4,860 on a multi-combination “pick-9” ticket. As described by Justice Ortega of the Second District Court of Appeal:
“Pick-9 requires the bettor to pick the winners of the nine races run that day. Picking all nine winners results in a large return.
“But Farenbaugh had something else in mind. He cancelled the ticket and bribed the pari-mutuel clerk to let him keep the worthless ticket. Farenbaugh then set out to sell shares in the ticket to other patrons at the track.  [S]ince the chance of hitting a big winner is remote, any shares sold would result in clear profit to Farenbaugh, who, having cancelled the ticket, had none of his own money at risk.”
Slick. Except for the bribe to the pari-mutuel clerk, there’s no overhead. And if you get lucky enough to win the first race or two, people are going to be anxious to buy in. If you win four or five, you’re gonna need a horse to carry home all the money other track-goers are anxious to invest.
Very slick. And given the astronomical odds against hitting a Pick-9, there’s virtually no risk.
The key word here, of course, is “virtually.” Again, quoting from the opinion: “But, lo and behold, Farenbaugh (much to his dismay, we assume) picked all nine winners. A valid ticket would have paid $1,380,000. Farenbaugh’s cancelled ticket was worth zero.”
We’ve all had this experience. You tell your spouse what a schmuck this director is, and the movie turns out to be the second coming of Citizen Kane. You gripe about Pujols’ inability to hit breaking balls, and he launches the next three curveballs he sees into the bleachers. You pick nine horses out of thin air to lose and they all turn into Secretariat.
Poor Farenbaugh had to be the sweatiest human being on the planet. He had twenty investors leaping in ecstasy every time they won another race. They were pounding him on the back, congratulating him for being the smartest horseplayer of all time, and counting their money as they got closer and closer to their million dollar payoff. They were probably drinking heavily and not likely to react well if all nine horses won and he had zero dollars with which to pay them.
In fact, as the opinion laments, the record does not address how the investors reacted when they learned their ticket to Paradise was a worthless fraud. Indeed, this is where the case exceeds my ability to fathom human nature. The name of the case is Szadolci v. Hollywood Park. Why isn’t it People v. Szadolci? Why is this not a murder case? How in the world were Szadolci and the other people who’d bought shares in this enterprise restrained from chopping Farenbaugh up into shares and then cancelling him?
Come to think of it, why is this not at least a Penal Code § 401 case?7 Farenbaugh hit the hunch of a lifetime. He picked nine winners in nine races—essentially by throwing darts at the racing form while cleaning his eyeglasses with his free hand. All the lawyers in this county don’t have enough fingers and toes to figure the odds on that.
He had a million-dollar winner and cancelled it. Why wasn’t he looking for a bridge to jump off? I would have been booking my assisted suicide ticket to Oregon before the last horse crossed the finish line.
But apparently none of these people resorted to violence. Instead, having presumably determined that Farenbaugh was judgment-proof,8 the victims of his scam added Hollywood Park, the pari-mutuel employee, and another track employee as defendants and sued for negligence, conspiracy, and negligent hiring.
What a reasonable and civilized way to sort things out. Also an unsuccessful way.
Summary judgment for all defendants—even Farenbaugh!—because the bets the plaintiffs were trying to enforce, since not placed with the track, were illegal. Affirmed on appeal.
Too bad, really. Had I written the case, the disposition would have read something like, “Summary judgment affirmed as against all respondents except Farenbaugh, who is ordered summarily shot.” But Eileen Moore would have talked me out of it. She would have pointed out that Farenbaugh had already suffered—and would suffer—enough. She’s a much nicer person than I am.
I hate to see these plaintiff/appellants left to “curse the street,” but I’ve now spent considerable time reading the case and I think the legal analysis is impeccable. And, as you can tell, I had a great time reading it. A great time the next generation of lawyers, with their intertubes and keywords and multijurisdictional search programs, will miss out on.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. Look for his third book, Lawyers, Gubs, and Monkeys, in November. He can be contacted at firstname.lastname@example.org.