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Court of Appeal Justice Bedsworth to Retire
Jurist Is Widely Lauded for Lucid, Pithy, Sometimes Humorous, Prose
By Roger M. Grace, editor
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WILLIAM W. BEDSWORTH Court of Appeal justice |
Court of Appeal Justice William W. Bedsworth—widely viewed as a giant in the judiciary based on opinions that are consistently marked by clarity and often by wit—will be retiring effective Oct. 21 from his post on the Fourth District’s Div. Three in Orange County.
He told the MetNews:
“I have no plans for retirement. That’s the whole idea of retirement if you ask me, doing nothing.
“I’ve spent 27 years in my dream job. If I wanted to keep working, I’d stay in it. So I have no plans for private judging.
“I’ve had a ridiculously privileged and happy life. My career exceeded the dreams I had before my first contracts exam.”
Bedsworth, who will be 77 on Nov. 21, continued:
“I’m looking forward to a lot of baseball and hockey games, watching my grandchildren play high school sports, working on my fitness to combat the ravages of the aging process on my already severely compromised body, and turning out my fourth book next year.”
The jurist resides with his wife in Laguna beach. They have several cats, but Bedsworth is thinking about getting a different kind of a pet, saying:
“And, now that I have the time to walk one, I’ll probably get a dog. I’ve told people for years that, ‘When I retire, I’m walking out of the courthouse and into the pound.’ ”
Letter to Newsom
Bedsworth, who has taught law classes at the University of California, Irvine (“UCI”), Western State University, and Chapman University, explained in a letter to Gov. Gavin Newsom his reasons for leaving the bench, saying:
“I always told my law students at UCI that ‘there is no greater engine for the accomplishment of good on the planet than the American legal system’ in which I have been allowed to serve. I also told them they were going into this profession with the goal not of becoming rich and famous, but of becoming proud and happy.
“I have reached that point. Now it’s time to find out who I am without a robe, something I have not investigated for 37 years.”
Gilbert’s Assessment
Court of Appeal Presiding Justice Arthur Gilbert of this district’s Div. Six—whose opinions are also widely hailed based on excellence of the writing—commented:
“I just got the news, my friend, colleague, favorite columnist, favorite Court of Appeal Justice, William Bedsworth, (Beds) is retiring. He is the justice to which numerous C’s apply, C’s that equal A+. His opinions are concise, written with scrupulous care. I rate them along with his creative insightful, hilarious columns, as colossal. He is considerate of litigants and counsel.
“Sorry to complain, but now which justice will I look up to? I can, however, wish the extraordinary ‘Beds,’ who I know will continue to make a difference, all the best on his retirement. Keep those columns coming.”
John Shepard Wiley Jr., a member of Div. Eight of this district’s Court of Appeal—whose judicial writings are praised for their succinctness and effectiveness—said:
“Justice Bedsworth’s catalog of opinions is a nonrenewable national treasure. They will continue to educate and delight readers for as long as Americans go to court to resolve conflicts.”
Lascher Comments
Veteran appellate lawyer Wendy Lascher a partner at Ventura County’s Ferguson Case Orr Paterson, LLP and a former president of the California Academy of Appellate Lawyers and American Academy of Appellate Lawyers. Had this to say:
“Justice Bedsworth likes people. His opinions show that. They stand out for their lack of pomposity and humorous regard for the human condition, plus his ability to describe a situation in few words:
“ ‘The marriage underlying this case was sadly overburdened and failed. Unfortunately, the divorce is also problematic.’ (In re Marriage of Cohen (2016) 3 Cal.App.5th 1014, 1016.)
“ ‘ZF Micro Solutions, Inc., the successor of now deceased ZF Micro Devices, Inc., alleges TAT Capital Partners, Ltd., murdered its predecessor by inserting a board member who poisoned it.’ (ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd. (2022) 82 Cal.App.5th 992, 996.)
“Justice Bedsworth’s choice of words to express his sound reasoning makes the opinions easy to read, balancing statements of legal principle and summaries of parties’ assertions with such pithy conclusions as ‘But it certainly did’ and ‘That’s how we got here.’ ”
“ hope the opinion-writing examples Justice Bedsworth leaves behind will instruct generations of lawyers, judges, and appellate justices.”
Praise From Collodel
Certified appellate specialist Douglas J. Collodel, of the downtown Los Angeles firm of Clyde & Co US LLP, remarked:
“Justice Bedsworth penned legal opinions which reflected his legal acumen and organizational skills. His decisions, albeit not always aligned with personal philosophies or contentions (i.e., we lost on appeal), did not create confusion or doubt about the legal principles being espoused and applied. They should serve as guideposts for legal writers (including appellate jurists).
“On the lighter side, Justice Bedsworth shared his musings in ALM|Law.com articles, which always prompted a smile. More than missing his days as a goal judge at Duck games, we will pine for his contributions to the Official Reports.”
The monthly column, “A Criminal Waste of Space,” appears in the San Francisco Recorder, is available online to Law.com subscribers, and is published in the Orange County Bar Association’s monthly magazine, “Orange County Lawyer”—where it started when Bedsworth was a deputy district attorney.
Started as Prosecutor
He joined the Orange County District Attorney’s Office in 1972 after receiving his law degree from the University of California at Berkeley in 1971 and gaining admission to the State Bar. He worked his way up to managing the law and motion/appellate division.
Bedsworth was twice elected president of the Association of Orange County Deputy District Attorneys and twice served twice as a member of the Orange County Bar Association Board of Directors.
His legal career spanned precisely 15 years, ending on Jan. 5, 1987 when he assumed office as an Orange Superior Court judge, having been elected to an open seat on Nov. 4, 1986. He was nominated on Feb. 25, 1997 by then-Gov. Pete Wilson to assume a newly created seat on the Court of Appeal and was confirmed by the Commission on Judicial Appointments on April 15 of that year.
Bedsworth’s rating by the State Bar’s Commission on Judicial Nominees Evaluation was “exceptionally well qualified.”
Distinguished Service Award
Over the years, the correctness of that rating has been demonstrated by performance on his part that has earned the jurist numerous awards, the latest of which is the highest honor the Judicial Council confers: its Distinguished Service Award. In announcing on Aug. 15 that Bedsworth will be one of three recipients this year, the Judicial Council recited:
“During his career on the bench, Justice Bedsworth has been an inspiring presence within the court and the legal community. In 2000, he wrote the opinion in People v. Garcia, which state Senator Carol Migden called ‘the first gay rights case in the history of the world.’ The California Legislature explicitly referred to that opinion when it amended Code of Civil Procedure section 231.5 to prohibit any consideration of sexual orientation as a basis for the exercise of a peremptory challenge during jury selection.
“His legal opinions have spanned many topics, but he is recognized by lawyers for his writings on civility within the profession. Justice Bedsworth served on California’s Civility Task Force, and was an outspoken voice committed to improving civility between opposing counsel and between lawyers and the bench.”
Association’s Highest Honor
Bedsworth has also received the Orange County Bar Association’s highest honor, the Franklin G. West Award, in 2018. Writing in the February, 2019 edition of the “Orange County Lawyer,” Court of Appeal Justice Thomas M. Goethals, of the Fourth District’s Div. Three, said:
“When I learned that Justice Bedsworth would receive the Franklin G. West Award this year, I sent him an email in which I congratulated him and wondered how many oak clusters would be included as I was certain he must have received ‘the West’ sometime in the past.”
Goethals explained in a footnote: “In military circles when one is awarded the same medal more than once it is said to come with ‘oak leaf clusters.’ ”
He continued:
“When he humbly informed me that my assumption in this regard was ill-founded, that this would be his first Franklin G. West Award, I was shocked. Every past recipient has been eminently qualified and richly deserving, but tell me this: Who is more deserving of the Orange County Bar Association’s lifetime achievement award, based on his entire body of work, than Justice Bedsworth?”
Bedsworth in 2015 received that bar association’s Presiding Justice David G. Sills Award for Appellate Excellence. He was named “judge of the year” by the Hispanic Bar Association in 1997 and by the Celtic Bar in 2012.
The LGBT Lavender Bar Association gave him its first Leadership Award in 2011, and in 2017, the California Chapter of the American Board of Trial Advocates named an award after him—the William W. Bedsworth Judicial Civility Award—and conferred the first one on him.
Writing Awards
His writing prowess has also earned him awards. Bedsworth won six of them in the California Newspaper Publishers’ Better Newspapers competition based on his columns.
The Green Bag Almanac & Reader, an annual publication, in 2011 cited his March 26, 2010 column titled “No Questions Asked?” as among the best legal writings of the preceding year. In it, Bedsworth indicated an inability to fathom why any appellate court jurist would remain mum during oral argument.
The column begins:
“My father was a casketmaker. He taught me not to judge the carpenter if you don’t know his tools. It was just a homey tradesman’s adjuration not to be judgmental, and I remember as a boy being unimpressed by it as a mantra. But I sure appreciate it now. It has helped keep my blood pressure in check for many years.”
Bedsworth went on to say:
“But Dad didn’t say anything about carpenters who disdain tools and choose to work without them. I dunno, I think Dad would have made an exception for judging somebody who turned his back on chisel and plane and just beat on the wood with a rock.
“So I’m not sure what to do about Tony Mauro’s eye-opening story in The National Law Journal, in which he notes it has been four years since Supreme Court Justice Clarence Thomas asked a question at oral argument. FOUR YEARS!
“The guy is deciding the most important and difficult questions in all of American jurisprudence. He’s untangling knots lesser lights like myself didn’t even know had been tied. He’s wending his way through labyrinthine arguments so complex I could barely diagram the sentences, much less select the right path. And through all that, he has never felt the need to ask a single question?
“I’ll leave it up to you whether that is a reflection of true brilliance or a badge of arrogant lunacy.”
The Green Bag designated as among the “exemplars of good legal writing from 2018” Bedsworth’s opinion in Brady v. Bayer Corp., 26 Cal. App. 5th 1156. Excerpts from that opinion appear in a box below.
Judicial Wisdom Award
The Times of London on Dec. 16, 2003, announced:
“The Judicial Wisdom of the Year award is won by Judge William Bedsworth, of California. When considering a charge of smuggling animals into the country, he stated: ‘There is no non-culpable explanation for monkeys in your underpants.’ ”
That utterance came in his December 2002 column bearing the heading, “Monkey Business Can Be Hard on Monkeys.” Bedsworth quoted a Copley News Service report as saying, “A man nabbed with two endangered pygmy monkeys in his pants after his flight from Thailand landed at Los Angeles International Airport pleaded guilty Tuesday to smuggling protected wildlife,” and wrote:
“According to the article, ‘Cusack denied having anything hidden on his body.’ Well, of course he did. This is not exactly the type of crime anybody cops out to.”
He provided some humorous dialogue between the smuggler and a customs agent, which he conjured up, then said:
“But by the time you reach arraignment, you should have benefited from the advice of counsel. Trust me on this one. I spent a long time practicing criminal law. Believe me when I tell you there is no non-culpable explanation for monkeys in your underwear. I’m sure counsel advised him to make a clean breast of it.”
Reflecting in his May 2021 column on his Judicial Wisdom Award years earlier, Bedsworth joked:
“It was obviously not a banner year for judicial wisdom.”
He quipped in a footnote:
“The [U.S.] Supreme Court, for example, decided to look the other way on gerrymandering in Vieth v. Jubelirer in 2003. I looked pretty good next to that.”
Writes of Retiring
In musings in his column last March, he indicated that he was mulling retirement but announced no date on which he would doff his robe and used the verb, “may.” Bedsworth wrote:
“I’m gonna try this again.
“I’ve tried twice to retire, and I’m 0-2. While this corresponds pretty closely to my life’s athletic history, failing to retire seems somehow more embarrassing than grounding out to short.
“It’s gotten to where everyone laughs when I mention retirement. I am—as you may have noticed—a man who likes to make people laugh, so that’s not entirely a bad thing. But the specter of an unattended retirement party because everybody thinks it’s a joke has made me more wary of crying ‘Wolf,’ so I think this time it may actually happen.”
★★★★
‘One a Day’ Does Not Mean Two, Bedsworth Declares
Below are excerpts from Court of Appeal Justice William W. Bedsworth’s opinion in Brady v. Bayer Corp., cited by Green Bag as among the “exemplars of good legal writing from 2018.” A purchaser of “One a Day”-brand vitamin gummies, William Brady, brought a putative class action against the maker of the product, Bayer, asserting violations of consumer protection statutes and a breach of warranty because the recommended dose, reflected by small type on the back of packages, is two chewables. The opinion reverses a judgment of dismissal that followed the sustaining of a demurrer without leave to amend.
In 1925, Merck Pharmaceuticals sent a letter to Morris Fishbein, chairman of the Journal of the American Medical Association. The letter said, “We have been recently startled by the unexplainable demand on the part of our customers for Sodium Borate C. P. Powder. From our representatives, we have learned that a Dr. Brinkley, of Milford, Kansas, has broadcast recommendations for the use of Merck’s Sodium Borate C. P. in obesity, and we have been literally swamped with orders, not only from the trade, but also from the laity. [¶] We have taken action by notifying our ... customers, as well as our sales staff and such retail druggists as have inquired of us regarding the product, strongly discouraging the use and sale of this material for the above mentioned purpose, as we are cognizant of the dangers involved in the internal administration of Sodium Borate.”
It’s been almost a hundred years since Merck sent that letter—responding to demand created by a charlatan with no formal medical training whose license to practice had been revoked in several states, but who had his own radio station and was making a fortune peddling unfounded remedies to unsuspecting citizens with little or no access to doctors. Since then, Americans have learned to resist such hucksterism and rely not only upon their personal physicians and organizations like the American Medical Association, but upon pharmaceutical companies whose closely regulated research, production, and merchandising have taken the place of expertise the average citizen is unable to develop.
So when consumers find a reputable company offering them vitamins—a company with 75 years of brand recognition, now owned by an international pharmaceutical company respected all over the world—they can be expected to adhere to that company’s advice. And when that company suggests, as it has with its products since 1949, that one vitamin pill a day is sufficient, it cannot then rely upon individual consumers reading the small—indeed miniscule—print on the back of its label to learn that instead of ONE A DAY, they should be taking two.
Much has changed since 1925 but we find nothing to suggest the public does not still expect that kind of responsible entrepreneurism from Merck—now a division of respondent Bayer Corporation —as well as the rest of the industry we entrust daily not just with goods and services but with our lives. So in this case we conclude Bayer has failed to appreciate the degree to which their trade name One Day has inspired reliance in consumers, and we hold an action alleging they violated California’s Consumer Legal Remedies Act (CLRA…), Unfair Competition Law (UCL…) and express warranty law…should have survived demurrer….[W]e are well aware that two federal district courts have reached a different decision. In both…a bench officer saw this case differently than we do. But both cases are based on what we think is an untenable proposition: that the market for vitamins is undifferentiated; that the hypothetical ‘reasonable consumer’ would, as a matter of law, examine the makeup of a daily vitamin supplement; that such a consumer would not rely upon the expertise of pharmacologists and doctors but would instead analyze the various concentrations of vitamins and minerals in each brand and draw a personal conclusion about which ingredients he/she needed in a daily vitamin supplement. We find nothing in law or experience to support that conclusion.
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Our canvassing of the relevant case law involving CLRA and UCL claims focused on allegedly misleading labels (including allegedly misleading brand names) reveals four discrete themes which aid the analysis of any misleading label claim. None of them supports respondents.
[After discussing cases under the four categories:]
So where does all this lead us—other than to eyestrain and fatigue? It leads us to conclude that all four themes that emerge from the case law uniformly point to the same result in this case: allowing Brady’s claim to proceed beyond the pleading stage.
Here’s how we break it down: 1. Common sense: Bayer’s One A Day gummies cannot be said, as a simple application of common sense, to indicate that two gummies a day are required. Indeed, common sense flows in the other direction: If the label prominently displays the words “One A Day” there is an implication that the daily intake should be one per day. (2.) Literal truth : In the context of its gummie product, the One A Day brand name is literally false. A consumer seeking to get the “one a day” amount of vitamins associated with the brand’s capsules will not take one a day. (3) Nature of the brand name: “One A Day,” when it comes to gummies, is explicitly misleading. Even judges can do enough math to know two does not equal one.
But the most damaging of these themes to Bayer’s position in our case is (4), the front-back problem. The front of the product makes no attempt to warn the consumer that a one-a-day jar of gummies is in fact full of two-a-day products. One must look at the back of the jar, in small print in the upper right hand corner, to receive the direction to “Chew: two gummies daily,” making a “Serving Size” is indeed two gummies. And unlike the billboard, sunburst-backed brand name print, that information is printed in nano-type.
Bayer tries to turn the “serving size” fine print on the back into a virtue by asserting that of course the customer must look at the back because “The only place to learn about the serving size, the vitamins, or the amount of vitamins is on the back.” We are unpersuaded. That might be the case if this product were called Gazorninplat Gummics or Every Day Gummies. But it is most decidedly not the case here. The front label fairly shouts that one per day will be sufficient.
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In the case before us, the front of the bottle implies a warranty that its contents are fit to last 100 days. Under Commercial Code section 2316 and [case law], any disclaimer had to be conspicuous. We don’t think that the microscopic ‘Chew: Two Gummies daily’ and ‘Serving Size: 2 gummies’ on the back is sufficiently conspicuous to modify the implied warranty on the front….The “ONE A DAY” text on the front label is orders of magnitude larger than the fine print “two gummies” text on the back label. We think we must reverse as to Brady’s warranty claim as well.
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