This is a somewhat dry opinion, but I liked it nonetheless. It's almost exclusively about the various principles that surround California's common law of contractual novation (as opposed to, say, modification and accord) and the application of those principles to the summary judgment entered in favor of the defendant. But it's a good explication of those principles -- which I readily admit that I didn't know much about before reading the opinion -- and is a pretty easy read notwithstanding its depth.
As a result, I enjoyed Judge Willie Fletcher's opinion, and learned a fair amount to boot. Plus, the case has some good and interesting facts (basically, about a farm that was about to go under and a contract with its owners that was modified in order to persuade the plaintiff not to declare bankruptcy). And even though I'm usually somewhat skeptical of alleged oral modifications of integrated written agreements, I actually found plaintiff's story here pretty darn credible, and also agreed with Judge Fletcher that the entry of summary judgment was improper.
The other interesting thing about the case is Judge Fletcher's tone. The opinion sounds a lot like an academic explication of doctrine rather than your traditional judicial missive, which is perhaps not too surprising given Willie's former occupation. But it sounds even more like the kind of opinion that a former debate-type would write, particularly in its point-by-point responses to Judge Beezer's concurrence. I wouldn't be surprised at all to learn that the relevant law clerk responsible for the opinion had a background in that area. This looks like precisely the type of opinion that I would have written back in the old days. (Plus, even though the tone of the opinion is always respectful, it's a little more of a direct attack on Judge Beezer than one is used to from Judge Fletcher's opinions. Another indicia of the type of "it's all about the argument, baby: nothing personal" approach that often characterizes former debate people.)
I do have one substantive critique of the opinion. Judge Fletcher states at the outset of his response to Judge Beezer's concurrence that to the degree Beezer disagrees with Fletcher's legal analysis, it is a dissent. See Slip Opinion at 8199 ("Judge Beezer has written a separate concurrence to express his understanding of novation under California law. To the extent Judge Beezer's concurrence is at variance with our majority opinion, it is, of course, a dissent.").
Uh, no. It's not. At all. Judge Beezer totally agrees with the judgment: it is crystal clear that he would reach the result as the majority (i.e., a reversal of the entry of summary judgment in favor of defendant). Which means that Judge Beezer's opinion is indeed a concurrence, and not a dissent. 'Cause it's a concurrence vs. a dissent based exclusively upon the differential response to the judgment, not the basis for that judgment (or the reasons one articulates). That's basic Civ Pro 101. And it's a little embarrassing for Judge Fletcher not to know that. And even more embarrassing for him to talk down to Judge Beezer ("[I]t is, of course, a dissent.") and be wrong about it.
