Friday, February 05, 2021

Manderson-Saleh v. Regents of the UC (Cal. Ct. App. - Feb. 5, 2021)

This is the kind of lawyer I do not want to be.

Overly long -- and only tangentially (but still) relevant -- backstory first.  It's 20-some years ago, and I'm a 2L interviewing for summer associate positions.  I grew up in Virginia, so my preference was to get a job in D.C.  Tons of lawyer jobs there, obviously.  And I was not worried about just "finding a job" at the time since I had just won the Harvard Law School's Sears Prize (awarded to the two students with the highest grades in the first-year class), so I my focus instead was on finding a job that I thought I would like and that "fit" me.  (I was ultimately successful in that objective, though not the way I had intended; I ended up splitting the summer with two firms in D.C., and discovered most definitively that neither one of 'em worked for me. But in the end it worked out just fine, and after clerking ended up at a place that was most definitely to my liking.)

So one of the places at which I interview is Arnold & Porter.  Nice, traditional D.C. firm.  Well-known.  I like the people I talk with there.  They seem to be very good lawyers, with nice personalities and tell good stories about their lives.  Great.

At the end of the day, I go to this one partner's office for one of the final interviews.  The first thing that I notice -- the thing that no one could help but notice -- is the huge pyramid of cigarette packs, about 8 feet or so high, carefully and deliberately stacked in a corner of the office as a display.  This guy's the tobacco industry's attorney.  And he definitely wants you to know that fact.  He's proud of it; it's high-paying, complicated work.  That's what he wanted to do with his life.

That's the instant I decided that there was no way I was ever working at Arnold & Porter.  It's not that I disliked the guy or thought he was evil.  Yep, everyone needs an attorney.  Regardless of what they've done.  It just doesn't need to be me.  I had a great conversation with the guy, never mentioned to him (or anyone else) my internal decision-making, and just turned down the summer job offer sub silentio once A&P made it.  No fight, no fuss.  It's just not the kind of lawyer I wanted to be -- or, honestly, even to have in a firm of which I was a part.  Not my cup of tea.  At all.

Today's case involves another dispute where I would most definitely not elect to be on one of the two sides.  It's not a sexual assault or toxic dumping or any of your "classic" types of cases where perhaps people have the usual reaction.  But it's one that struck me very solidly as something I'd want to have no part of whatsoever, even though I suspect the vast majority of attorneys would have zero problem representing either side in the thing.

It's a simple pension dispute.  One from San Diego, as it turns out.  There's a nurse who's living her life and working at UCSD.  He's an oncology nurse, in fact.  So she dedicates the vast majority of her days to improving the lives of those with cancer.  Works there for a long time.

In 2014, she discovers that she herself has cancer.  Which I'm certain was devastating for her.  She gets (I presume) the very best, most informed treatment, and for a while, it works.  But after a couple years, the cancer starts to get the upper hand.  And by April 2016, the game's all but over.  She knows she's going to die.  It's inevitable.

Since she's worked at UCSD for a while, she's got a pension.  So in April, knowing she's dying, she asks to retire from her job.  Which makes sense, since she's never going to work again -- she's simply sitting at home during her final days.  She's only got one family member -- her daughter -- so she wants the daughter to be the beneficiary of her pension.  Fine.  That's the way things work.  You die, the kids get your survivor benefits.

She's way too sick to fill out all the forms herself -- plus I suspect she's got tons of better things to do with her few remaining days -- so she fills out a power of attorney for her daughter.  Again, totally fine, and totally permissible.  Her daughter fills out the forms and sends 'em in.  Her employer, UCSD, has no problem with that.  It knows -- understandably -- that she's dying, and is totally willing to have the daughter with the power of attorney fill out the forms.  They all get sent in, and everything's good.

Then UCSD sends some forms back, and the daughter fills 'em out and sends 'em in.  Then UCSD sends some other forms, and the daughter again dutifully fills them out and sends them back.  Then on September 16, UCSD sends yet some more forms back to be filled out.  Everyone knows full well what the dying person wants; UCSD just keeps sending more and more forms.  Bureaucracy.  Fair enough.

Sadly, four days after UCSD sends their final forms -- around a full month after the whole paper-shuffle process commenced -- the cancer finally wins, and the mother dies.  The daughter grieves, does all the things you need to do when your parent dies, and six days after her death, returns the final form.

At which point UCSD says:  Screw you.  Because she died before the final form got turned in, we're not paying anyone a penny.  We're keeping the entire pension ourselves.  No one gets anything.  Ha!

The daughter eventually finds a lawyer, who files a claim for both writ of mandate and breach of contract against UCSD.  UCSD in turn finds a lawyer who convinces a court that, yep, even though it's crystal clear what the mother wanted, and filled out all the forms, since the final one in UCSD's lengthy bureaucratic process didn't get submitted until just after she died, her pension entirely disappears.

The Court of Appeal reverses.  There's a thing called substantial compliance.  And we don't even need a remand to decide whether that transpired here.  It did.  Pay the deceased woman's daughter her pension.

So, in the end, from my perspective, anyway, an equitable, just and happy result.

But there's zero way I'd have represented UCSD in this one.

Pay the pension.  Don't piggishly keep it.  It's not that you'll be wasting tons of money on legal fees and the like -- though you surely will.  It's simply the right thing to do.  She's an oncology nurse who earned a pension working for you and who died of cancer, for Christ's sake.  Just give her only daughter the freaking pension benefits to which the mother was entitled.  I care not in the slightest that the cancer killed your employee days before she was able to return the last of the innumerable forms you sent her.  You knew she was dying, you knew she was retiring, there's zero doubt who she wanted her pension to go to, and I'm sure she tried her hardest not to die before you sent her the last form.

Just give her the money.  Don't hire lawyers and mightily litigate whether this dying woman gets the pension that she earned for her decade-plus of work with you.  It's literally a relative pittance.  Pay it.  Don't keep the money she earned for yourself.

Does UCSD have a right to fight the thing?  Sure.  Is UCSD entitled to a lawyer?  Definitely.  Does UCSD have a non-frivolous claim?  Definitely.  It convinced the trial court (Judge Taylor, down here in San Diego, who's very bright but also definitely a stickler for details), after all.  And if UCSD wants to fight even though the lawyer recommends that they simply pay (or settle), yep, that's their right.

But I most definitely would not do it.  Whether on my deathbed or in my daily life, I don't want to spend my own days working mightily to make effective someone's desire to stiff the daughter of a dying oncology-nurse mother her pension benefits.

Your preferences may perhaps vary.  Not mine.  Not here.


P.S. - Happy birthday to my grandmother today.  She turns 99.  Though I suspect she'd be horrified if she knew I was disclosing he actual age. 

POSTSCRIPT - Someone reached out to tell me that the dispositive substantial compliance issue wasn't raised by the parties either below or in the Court of Appeal -- it was raised by the justices themselves, at which point the parties submitted letter briefs on the point.  I'm personally happy the Court of Appeal did so; it gets to the right result.  Though it's unfortunate that this issue wasn't raised earlier, since to me, it's indeed the dispositive legal principle.