Think of this article as the legal equivalent of looking around your crawl space. We tend to take our house's foundations for granted and don't spend much time down there. Too much dust, dark corners full of spiders and rats, and memories of tv reports about people finding bears or mountain lions under their houses. This article adds turtles and some exotic creatures called WAGS to that list.
We take the foundations of our state pretty much for granted too, rarely, if ever, considering how recently it was formed and how fast it has developed. California was only ceded to the USA by Mexico in 1848 and admitted as a state on Sept. 9, 1850. This is only a few generations ago - the great grandparents of some of our older colleagues were alive at the time.
Rather than trying to design a completely new body of law, our founders followed the example of numerous other states and on April 13, 1850 (i.e., before we even became a state), they adopted the English common law by passing Political Code § 4468, which provided that "[t]he common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State." This statute remains in full force today as Cal. Civil Code § 22.2. And Cal. Prob. Code § 15002 contains a similar principle to be applied to the law of trusts: "Except to the extent that the common law rules governing trusts are modified by statute, the common law as to trusts is the law of this state."
Witkin explains that pursuant to § 22.2, the courts will look to the common law of England, instead of to court precedent. (Common Law as Rule of Decision., 9 Witkin, Cal. Proc. 6th Appeal § 505 (2022).
However in the process of determining what law to adopt, a California court will apply not only the decisions of English courts but also those of American courts that follow the common law, subject only to the limitations that (a) a common law doctrine will be rejected where California's statutes preclude its application, and (b) where the common law rule is completely unacceptable under modern social or economic conditions. Id.
This brings us to the questions of (a) what is the common law of England, and (b) where can it be found? It was described rather romantically by the California Supreme Court in 1886 as "a collection of principles found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts. It was imported by our colonial ancestors, so far as it was applicable, and was sanctioned by royal charters." (Lux v. Haggin, 69 Cal. 255, 386 (1886)). It is founded upon the idea that reason, not arbitrary will, is to be the ultimate ground of decision. (U. S. v. Schneiderman, 102 F.Supp. 87 (S.D.Cal.1951)).
For purposes of Section 22.2, the California Supreme Court held in 1917 "that our legislature in its use of the phrase 'common law' had in contemplation the whole body of that jurisprudence as it stood, influenced by statute, at the time when the code section was adopted. And more than that, that it embraced also in its contemplation the great handmaiden and coadjutor of the common law, equity." (Martin v. Superior Court, 176 Cal. 289, 293 (1917)).
However, an essential nature of the common law is its flexibility. "It is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs but rather is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of the people. Its most significant feature is its inherent capacity for growth and change; although the legislature, of course, may speak to the subject, the primary instruments of this evolution are the courts that are responsible for renewing the common law when necessary and proper." (58 Cal. Jur. 3d Statutes § 5.) The courts, in other words, will try to identify traditional principles of justice and apply them in the context of today's social or economic conditions, but precedents are not binding where those conditions have rendered a common law rule unacceptable. (Self v. Self, 58 C.2d 683, 684 (1962)).
Another factor which adds to the complexity is that the common law of England includes not only the lex non scripta (i.e., laws that are not written down) but also written statutes enacted by the British Parliament prior to 1776. (Moore v. Purse Seine Net, 18 Cal. 2d 835, 838-39, 118 P.2d 1, 4 (1941), aff'd sub nom. C.J. Hendry Co. v. Moore, 318 U.S. 133, 63 S. Ct. 499, 87 L. Ed. 663 (1943)).
Anyone wishing to research the English common law would be well advised to start with Halsbury's Laws of England - a comprehensive treatise of English law - but a better course would be to consult an English lawyer.
To most of us, this probably sounds too nebulous and quaint for practical use, a bit like meandering along a winding English country lane sunk between high hedgerows (a sure sign that the lane was an old Anglo-Saxon boundary. W.G. Hoskyns, The Making of the English Landscape (1955) - a classic, highly recommended), when what we're really looking for is the nearest freeway to the courthouse. But consider the way in which these principles have been applied in recent cases.
In Katzberg v. Regents of Univ. of California, 29 Cal. 4th 300, 303 (2002), the California Supreme Court held that there was no evidence of an intent to confer a right to damages in the legislative history of Section 7 of the California Constitution (containing the due process protection) and concluded that California law does not contemplate damages actions to remedy violations of due process liberty interests. However, the outcome would have been different with regard to the rights flowing to a victim of an illegal search and seizure. Specifically, the court distinguished the due process provision at issue from a search and seizure provision, noting that the prohibition against unlawful searches and seizures originated in the Magna Carta and provided a damage remedy for the victims of unlawful searches at common law. Id. at 322-23. The legislative history of search and seizure protection - unlike that of due process - therefore implied a right to damages. Id.
Another interesting use of old common law principles was in a recent English defamation trial dubbed "Wagatha Christie" between Rebekah Vardy and Coleen Rooney, the wives of English soccer stars Jamie Vardy and Wayne Rooney. ("WAGS" is an acronym for Wives and Girlfriends - which was first used during the 2006 World Cup when public interest in the antics of the English soccer team's wives and girlfriends eclipsed any interest in the team's dismal performance on the pitch). Mrs. Rooney accused Mrs. Vardy of leaking personal stories about her to the media. Mrs. Vardy denied the accusation and sued Mrs. Rooney for defamation. Because she bore the burden of establishing truth as a defense, Mrs. Rooney had to prove that Mrs. Vardy was behind the leaked stories. During the seven-day bench trial in London in May 2022, Mrs. Rooney claimed that Mrs. Vardy's agent, Caroline Watt, destroyed evidence which may have proved that Mrs. Vardy was the leaker by dropping her phone containing incriminating messages into the North Sea. [When Mrs. Rooney's barrister described the phone as being in "Davy Jones' Locker," Mrs. Vardy replied: "Who's Davy Jones?"]
Ms. Watt claimed she dropped her phone by accident after her boat hit a wave. Mrs. Rooney could not prove that Ms. Watt had deliberately thrown the phone overboard, but her lawyers cited a 1722 case entitled Armory v Delamirie regarding the value of lost evidence. (Armory v. Delamirie, 93 Eng. Rep. 664 (1722). The case concerned a chimney-sweep (Armory) who took a jeweled ring to a jeweler (Delamirie) to have it valued. One of Delamirie's employees removed the precious stones from the ring socket and gave Armory an offer for the stones, which he refused, asking instead for the ring to be returned. The employee did so, but without the precious stones, leading Armory to sue. While the case largely concerned property rights, it also set a precedent for judgments on the value of missing evidence in English law. The judge ruled in Armory's favor, saying that because the stones were missing, he was owed the value of the most expensive stones that could have fit into the socket. In Wagatha Christie, Mrs. Rooney's lawyers used the ruling to argue that the missing evidence in this case - the messages on Watt's phone - should be considered to be of the highest possible value to the case. Mrs. Rooney won the case, with the judge making damning comments about Mrs. Vardy's credibility and drawing strong inferences against her because of the loss of the phone.
A third example is Flo & Eddie, Inc. v. Sirius XM Radio, Inc., which is a putative class action by copyright owners seeking a ruling that digital and satellite radio stations have a duty to pay public performance royalties for pre-1972 songs under state copyright law. (Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 9 F.4th 1167 (9th Cir. 2021). The plaintiff, Flo & Eddie, Inc., was formed by the lead members of the 1960's group, The Turtles, to hold the rights to their songs, including the classic "Happy Together." The outcome of the case depended on whether the term "exclusive ownership," which appears in California's 1872 copyright statute, includes a right of public performance for owners of pre-1972 sound recordings under California law. The District Court ruled that it did, but the 9th Circuit disagreed, explaining that California had a deeply rooted common law understanding of copyright protection based on English law which only protected unpublished works. The 9th Circuit held that there was nothing to suggest that this understanding had been changed when the word "exclusive ownership" appeared in the 1872 copyright statute. It therefore applied the old common law understanding and declined to construe "exclusive ownership" to include the right of public performance.
Lastly, the common law has played a major role in the shaping of California law on the right to a jury trial, derived in large part from the fact that the California constitution afforded a right to jury trial in common law actions at law that were triable by a jury in 1850, but not in suits at equity. Judge Cowan will elaborate on this issue at our upcoming program on September 16.
The big take away from this article is that with any case of first impression, where California statutes are silent on a subject and there is no other positive law, the English common law still governs and should be carefully researched. (In re Paterson's Estate, 34 Cal.App.2d 305 (1939)).
Event Note: The Orange County Bar Association, BHBA and BABA are co-hosting an MCLE program about Civil Code Section 22.2 on Sept. 16 from 12:30-1:00 pm via zoom. The speakers will be David Cowan, a Los Angeles Superior Court judge; Edward Capewell, an associate at Loeb & Loeb LLP; and Rufus-Isaacs (the author of this article). Michelle Wedderburn, an attorney with Stephenson, Acquisto & Colman, will be moderating. Further information and registration is available at www.bhba.org.