by Justice William W. Bedsworth

We need a new tort.

Yeah, I know. I can’t believe I said it either.

I have eighty-seven linear feet of annotated codes in my chambers. By comparison, it’s ninety feet from home to first in baseball. Next time your favorite ballplayer gets thrown out by a step, give some thought to the fact he probably couldn’t have outrun the annotated codes, either.¹

Every time I have to wade into that swamp, I think unkind thoughts about legislators, lobbyists, and Mrs. Thomas.² But I’m still proposing we add another law or two . . . or six. There’s a problem we have not yet addressed.³

And it requires the creation of a new tort: The Tort of Wrongful Naming.

I’ve been remiss in not addressing this earlier. I’ve been aware of it for years. It’s the “Boy-Named-Sue” syndrome.

For those of you too young—or too cultured—to be familiar with the Shel Silverstein/Johnny Cash song with that title, the concept is pretty simple: there are some names that are so problematic they’re just bound to get you in trouble.

But there appear to be a lot of parents who either don’t recognize the problem (negligent wrongful naming) or are just plain mean (treble damages wrongful naming). I hear names every day that make me wonder how the bearer survived childhood. And the prisons are full of people whose parents condemned them to that destination shortly after birth.

I had a case last year involving an appellant named Thelonious.

Now I’m a big music fan. I can certainly understand someone admiring Thelonious Monk—especially if you’re into slide piano. But don’t name your child after him, for crying out loud. You might as well name him Uglee or Dainbramage.⁴

While the great jazz artist was able to avoid slipping from Thelonious to Felonious, my appellant wasn’t, and I think his parents should shoulder a lot of the blame.⁵

The gravitational pull of a name like Thelonious must be amazing. I mean, it’s one thing having a name all the other kids make fun of. It’s quite another having one that screams “self-fulfilling prophecy” every time role is called.

Names are important. If you’re going to name your child Englebert Humperdinck Smith or Benedict Cumberbatch Jones, give some thought to what that child is going to go through.

My mother was aware of the problem, God bless her. She was determined to name me after my father, but there was a geographic problem. My forebears are almost all from the South. And Mom was concerned that if she named me William Wiley Bedsworth, Jr., I would go through life as “Junior,” a common nickname in that part of the country.

Mom considered that a fate worse than death. So she insisted on appending a Roman numeral “II” after my name. She knew that was technically incorrect—that “II” is the way you name someone outside the direct line of succession, like if you gave your child your brother’s name—but she did not care. She knew being called “Junior” all my life could leave scars on me,⁶ so she bent the rules.

The result was that while I got into my share of fights as a kid, they were fights I brought upon myself rather than fights foisted on me by the xenophobia of childhood.

Judge Myron Brown, as good a friend as I’ve ever had, was not fond of his first name. He used to say that whenever he met another Myron, it was like encountering a fraternity brother—someone who knew what it was like to go through life with an “uncool” name and could be counted on for a certain amount of compassion.

Of course, predicting what the “cool” names will be is always a dicey proposition. When my youngest was born, we named her Caitlin. She was the first “Caitlin” born to an Orange County prosecutor, and I spent weeks explaining the name to my office mates. I thought I was pretty clever coming up with something unusual.

Of course, by the time she got to grade school, Caitlins were thick on the ground. She was one of five in her fourth grade class. She wasn’t even the only “Caitlin B.”

But neither was she the only Propecia or Alminharica or Evening Star.⁷

I think children saddled with names that require a rhyming dictionary or boxing lessons should have a cause of action against their parents.

Once they reach adulthood, it’s up to them what appellation they want to choose. I have nothing but admiration for the wife of my law school classmate Rich Becerra, who chose to adopt his last name even though her first name was Sarah. Ditto my friend Bill Barron’s wife, Sharon.

More power to ‘em. These are women who obviously have experienced true love.

Nor do I begrudge the Australian guy Kevin Underhill wrote about last year in Lowering the Bar. That guy, Meow-Ludo Disco Gamma Meow-Meow,⁸ has just had his conviction reversed.

Mr. Meow-Meow⁹ committed a “crime”¹⁰ as unusual as his name. You probably doubt that, but it’s true.

Meow—a nice-looking young man who would make a good impression if your daughter brought him to dinner—removed the “near-field communication chip”¹¹ from his rapid-transit card and had a professional piercer implant it beneath the skin on his left hand. That enabled him to board the bus or subway or whatever without having to remove the card from his wallet. He just held his hand next to the chip-reader and, Bingo,¹² the gate opened.

Now . . . tell the truth . . . don’t you feel bad for doubting me when I said his “crime” was as unusual as his name? Granted, he was convicted of the rather pedestrian offense of “damaging or tampering with” a transit card (which he had to do to get the chip out so it could be implanted in his hand), but the actual facts were more than just Benedict Cumberbatch unusual, no?

And now Meow has been vindicated. Kind of.

The judge who found him guilty has reversed herself, said the case was “highly unusual,”¹³ “involved a unique set of circumstances,”¹⁴ and said she was “of the view that the objective seriousness of the offence fell towards the lower end of the range, if not the bottom.”

She then seems to have found it was actually beneath even “the bottom” since she “quashed the conviction.”¹⁵ Meow says he doesn’t encourage anyone else to do this, but he says nothing to discourage people from naming their children after him.

And until our legislature addresses the clearly tortious behavior involved in wrongful naming, there’s nothing to keep it from happening.

BEDS NOTES

1. And if, like me, your favorite baseball team is the Angels, you can lament the fact your designated hitter—sure first ballot Hall-of-Famer Albert Pujols—could not outrun Witkin.
2. My first-grade teacher. Had she not taught me to read . . . .
3. No, not that one. Legislators, lobbyists, Mrs. Thomas, Jonas Salk, and all the king’s horses and all the king’s men couldn’t fix what’s going on in Washington. Let’s just try to keep things on the rails here in The People’s Republic of California.
4. I’d been a judge a year when a ruptured aneurysm required brain surgery. When I came back to work, they gave me a button that said “Dainbramaged.” Tough room.
5. Re-read that sentence and look at the words “should” and “shoulder” juxtaposed midway through. How can those two words—involving identical letters—be pronounced so differently? People who teach English as a Second Language must be saints.
6. Not to mention her.
7. And she was lucky enough to be born before I learned Plaxico was a name.
8. Hereinafter, “Meow,” because I assume that’s what his friends call him, and I would aspire to be one.
9. That’s how the Australian Broadcasting Corporation refers to him in their story. Apparently they’ve adopted the New York Times conceit of calling everyone by the formal honorific (“Mr. Pujols drove in 101 runs last year despite batting only .241.”). (If it gets by my editor, I think I can claim a record here: Most Periods Used in Eight Characters of a Sentence Without an Ellipsis. This is my chance to be a legend.)
10. If you keep reading, you’ll find out why it turned out not to be one. And you’ve already wasted this much time, so why the hell not?
11. A term I figure three of my readers have ever seen before (four if Ray Ikola decides to read the column this month).
12. Or Voila! Or Presto. Or Bob’s Your Uncle. Or My Name is Inigo Montoya. Or whatever other favorite excited utterance you choose to insert here. Because I think you gotta admit, a guy holding his hand up to the chip reader and having it work calls for an excited utterance.
13. The term “Benedict Cumberbatch unusual” is apparently not yet a part of Australian jurisprudence, and—as noted above—would have been inadequate in any event.
14. Now we’re getting there.
15. I don’t know exactly what that means in Australian criminal law. Hell, I have enough trouble with American law without trying to figure out Australian law. But if Aussie usage is anything like ours, it sure sounds like a “W” for Meow.

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 william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.