by Justice William W. Bedsworth
I was an appellate lawyer for most of my career. I petitioned for more writs than I care to remember. With results probably indistinguishable from your own.
I would have needed a fifteen-game hitting streak to reach the Mendoza Line.1
I would labor and suffer over a brilliant brief, tie up twenty-six office employees gathering the record, hand it all to someone with an unblemished driving record so it could be driven to the court without regard to speed limits, exult over my anticipated victory, and then . . . a week later . . . sit and stare at the one-word response: Denied.
I would have given a lot then to have been a fly on the wall and actually learned what went on in those writ conferences. I always pictured them as three judges, a rubber stamp, a few sandwiches, and a lot of beer.
I was greatly disappointed when I got here and found they generally consisted of three judges, a half-dozen well-prepared staff lawyers, onerous briefing books read Wednesday night, a flurry of emails and requests for more information, difficult discussions with a bunch of smart people, and not a drop of beer. Not even a doughnut to improve the experience.
But there are occasional cases that produce a more memorable morning. One I remember was The Great Laguna Niguel Landslide Writ of 1998.
While it is hard to imagine now, rain used to fall in southern California. People who lived here in those golden days fondly recount stories of trees and flowers and being able to shower without catching the runoff in a bucket.
1998 was an especially wet year. It was so wet Jay Leno complained that the Chia pet he threw away was now blocking his driveway.
It was so wet that the Laguna Niguel home of Horatio P. Morgan slid 500 feet down from its hillside perch at 35566 Chrysanthemum Canyon Horizon View Road into the canyon beneath it—and onto the property of Miss Susannah’s Happy Puppy Auberge and Spa at 19521 Greengolden Valley Glen Parkway.
Mr. Morgan had been home at the time and sat in his 800-square-foot, double-fireplaced, open-concept great room watching two NFL games and a tennis match on three of his five big-screens2 while his house slid down the hill—lock, stock, two wet-bars, and about five yards of mud—right onto the Auberge.3
Dr. Susannah Baransky, a retired PhD in Nuclear Acrobatics, had only turned her backyard into a canine auberge three weeks before and was out walking the seven dogs she had in residence when the landslide occurred. She was somewhat nonplussed to find Mr. Morgan’s 6,000-square-foot home precisely where hers had been—only eleven feet higher due to the accumulation of mud beneath it.
The first problem was that the cages for the dogs were no longer accessible. Fortunately for Mr. Morgan, he was also inaccessible, because Dr. Baransky quickly became agitated about her inability to deal with a Great Pyrenees, a boxer, a cocker spaniel, three pugs, and a Shar-Pei, and probably would have become physical had Mr. Morgan not been eleven feet above her and impossible to reach.
Dr. Baransky shouted up to Mr. Morgan that he should, “Get off my property before I knock you into next week, you miserable squatter!”4
Mr. Morgan looked around . . . smiled . . . and said, “Your property? I see nothing but my own property—including eleven feet of mud that is indisputably mine, and that I have never previously been able to view. It’s a great day.”
Dr. Baransky grabbed some of Mr. Morgan’s mud—which was now where her front sidewalk had been—and threw it at him. Caught him right in the jaw.
This was—sans mud—pretty much the condition in which the case came to us. Dr. Baransky had filed an unlawful detainer action, and the trial court had rejected it, apparently on the basis that Mr. Morgan could not be evicted from his own home—which he owned free and clear, having been a nine-time Jeopardy winner.
Dr. Baransky petitioned for a writ on the basis she was the legal owner of 19521 Greengolden Valley Glen Parkway, deserved immediate possession thereof, and the damned pugs were driving her crazy.
The writ conference went like this:
Justice Gazorninplat5: Seems to me it’s perfectly clear. Morgan owns the mud, the house, the garage, the flower beds, the tool shed, and the lawn. He has personally bought, built, or planted everything that now sits at 19521 Greengolden Valley Glen Parkway. Dr. Baransky has no case.
Justice Kerfuffle: Au contraire, mon ami. Baransky owns the land situated within the stated geographical bounds of her property. 35566 Chrysanthemum Canyon Horizon View Road is now situated between those geographical bounds. Ergo, Baransky owns it.
Justice Wrongever: Are you sure there’s no beer?
Justice Gazorninplat: Kerf6, the man bought the house. He planted the flowers. He owns the property. The fact the property—grass, dirt, flowers, and gold bullion he says he buried there—is not where it was eight months ago doesn’t change that.
Justice Kerfuffle: Have you lost your mind, Zornie?7 The poor woman goes out to walk her dogs and loses her home? That makes no sense.
Justice Wrongever: Why were the big-screens in his living room? It’s a 6,000-square-foot house; it must have a media room.
Justice Gazorninplat: How about adverse possession? Can we resolve this on adverse possession grounds?
Justice Kerfuffle: Parties didn’t raise it. Besides he hasn’t been there long enough.
Justice Gazorninplat: We could ask for additional briefing; we stretch this thing out long enough, maybe he’ll figure out the adverse possession argument.
Justice Kefuffle: We’d have to stretch it out long enough for me to figure it out, Splat. And that ain’t ever gonna happen.
Justice Wrongever: We should at least have sandwiches.
Justice Gazorninplat: I think I have a conflict here. I once drove through Dana Point, which you could see from 35566 Chrysanthemum Canyon Horizon View Road when it was still on top of the hill.
Justice Kerfuffle: No, no, Zornie, you’re not getting out of this one. If I have to be miserable, everybody has to be miserable.8
Justice Wrongever: We could send out for sandwiches.
Justice Gazorninplat: Good God, Wrong, don’t you ever think of anything but food?
Justice Wrongever: I thought about the big-screens; I notice you and Cardozofuffle didn’t have an answer to that question.
Justice Kerfuffle: No, wait a minute. That’s it! God!
Justice Wrongever: What’s it?
Justice Gazorninplat: Of course, Kerf-man, God! That’s brilliant!
Justice Wrongever: Huh?
Justice Kerfuffle: God! It’s an act of God, Wrongy! Don’t you see? God decides where property goes, not us. And if She decides to move it, who are we to contradict Her?
Justice Gazorninplat: Brilliant! Nice going, Kerfmeister!
Justice Kerfuffle [to staff attorney]: It’s an act of God analysis. Can you write it up like that?
Staff attorney: Easily. I’ll just duplicate Chapter 34 of Roughing It, by Mark Twain. He wrote this story 145 years ago in case some desperate future justice had a column deadline to meet. He called it Morgan v. Hyde. I’ll only have to change one name.
Justice Wrongever: Is there a law against beer in courthouses? Because if it isn’t, I really think we oughta have beer.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at firstname.lastname@example.org. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.