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IN RE KLER
FRIEDMAN, J.
The complaint in this action seeks enforcement of a right of first refusal that plaintiff claims he held for 30 days while conducting due diligence in contemplation of entering into a contract to purchase real property. Defendant Grunberg 55 LLC, appealing from the denial of its motion to dismiss, argues, among other things, that the alleged right of first refusal is not enforceable under the applicable statute of frauds (General Obligations Law § 5-703) because it was memorialized in an e-mail only. We reject this argument, reaffirming our prior decisions that have held (albeit without extensive discussion) that an e-mail will satisfy the statute of frauds so long as its contents and subscription meet all requirements of the governing statute. In this case, however, the record — including plaintiffs admissions in the complaint, the undisputed documentary evidence of the parties' dealings, and the affidavit of plaintiff's representative in the negotiations — establishes as a matter of law that plaintiff never accepted the right of first refusal proposed in the e-mail. The right to match "any legitimate, better offer" proffered by the e-mail was tied to the asking price of $52 million. Given that the parties did not tentatively agree on the price term linked to the right of first refusal proposed in the e-mail, there was never any meeting of the minds between the parties as to that right of first refusal. Although plaintiff apparently alleges that the parties subsequently reached an oral or implied-in-fact agreement that plaintiff would have a right of first refusal based on a different price term ($50 million), any such unwritten right of first refusal is unenforceable under General Obligations Law § 5-703. Accordingly, defendant's motion to dismiss the complaint should have been granted.
The dismissal of the complaint as against the individual defendant (the principal of Grunberg 55 LLC) is not at issue on this appeal. Accordingly, we hereinafter use the term "defendant" to refer to Grunberg 55 LLC only.
The complaint alleges that, on February 9, 2007, plaintiff, a citizen and resident of Italy, offered, through his broker, to purchase the property owned by defendant at 15-19 West 55th Street in Manhattan for $50 million. Three days later, on February 12, defendant's broker, Mark Spinelli of Massey Knakal Realty Services, responded to plaintiffs broker with an e-mail that stated in pertinent part:
"Below is a response to your customer's offer for 15-19 West 55th Street. Please review with your customer and let me know how you would like to proceed.
"Counteroffer: $52 million
"DD: No due diligence period although complete unfettered access and first right of refusal on any legitimate, better offer during a 30 day period[.]
"Deposit: 10% deposit hard in escrow in the US upon signing of contract that the ownership will furnish to them forthwith. Negotiations will take place during their due diligence.
"The ownership will not take the property off the market for anyone without a signed contract and hard money.
"Mark J. Spinelli
"Director of Sales
"Massey Knakal Realty Services."
The complaint does not allege, and conspicuously omits from its partial quotation of the above e-mail, the price term ($52 million) contained in defendant's counteroffer. Instead, the complaint alleges that Spinelli's February 12 e-mail "duly acknowledged Plaintiffs offer and made a counterproposal, while providing Plaintiff with the subject Right of First Refusal in consideration for his continuing interest in the property." The complaint further alleges: "Based upon the actual, constructive and/or apparent authority of Massey Knakal, the Right of First Refusal was immediately binding and enforceable and provided Plaintiff with specific and definite rights in the Property."
After receiving the above e-mail, plaintiff allegedly began conducting costly due diligence on the property. The record shows that the parties exchanged e-mail concerning this due diligence, which required defendant's cooperation. For example, an e-mail from plaintiffs counsel to defendant's counsel, dated February 26, 2007, states: "[W]e [plaintiffs counsel] would like to send 2 people on Wednesday to review Seller's records/files in regard to the property. Please advise where the files are located and whether Seller is able to accommodate the Wednesday request."
Despite the $52 million counteroffer set forth in Spinelli's e-mail, on or about February 16, 2007, defendant's attorney forwarded to plaintiff's attorney a draft of a contract for sale of the property for $50 million, the amount of plaintiff's original offer. Notably, far from alleging that the $50 million price term in the draft contract was a mistake, the complaint affirmatively relies on the draft contract as evidence of an alleged tentative agreement in principal that the property would be sold for $50 million. In this regard, the complaint alleges: "Significantly, the contract forwarded by [defendant's attorney] provided for a $50 million purchase price consistent with Plaintiffs offer without any indication that the contract was not to be considered a definitive offer to sell the Property for $50 million." To like effect, plaintiffs representative in this matter, Federico Santini, stated in his affidavit opposing the motion to dismiss:
"Defendants fail to explain why the proposed contract contains a purchase price of $50 million (not $52 million). The dissemination of a $50 million contract, prepared by Defendants' own counsel, not only suggests that the purported $52 million counterproposal was not seriously pursued by Defendants, but also completely undermines Defendants' argument that Plaintiff rejected the counteroffer of $52 million. In view of the subsequent [draft] contract, Massey Knakal's email [ sic] must be read to simply mean that a counteroffer was potentially under discussion by the parties' [ sic] subject, of course, to Plaintiffs right of first refusal."
Neither the draft contract nor the cover letter transmitting it (which are in the record) contains any reference to a right of first refusal.
The complaint further alleges that plaintiff subsequently learned that defendant was pursuing a sale with a third party in the amount of $52 million. In March, plaintiff sent defendant a letter purporting to exercise the "first right of refusal" referenced in Spinelli's February 12 e-mail, stating:
"Pursuant to the first right you granted me as per above [ sic; nothing appears above], I hereby offer to purchase the properties for a cash consideration of $52,000,000. . . . I am ready to sign the sale contract and to deposit 10% in escrow on [ sic] your attorney's account within [ sic] 9:00 P.M. of Monday 12th March, 2007."
Defendant rejected the foregoing offer and went forward with the sale of the property to another purchaser.
The complaint asserts a single cause of action against defendant for breach of contract, based on defendant's refusal to honor the right of first refusal allegedly granted to plaintiff in the February 12 e-mail of defendant's broker. In lieu of answering, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), arguing: (1) that there was never any meeting of the minds as to the right of first refusal; (2) that the right of first refusal was barred by the statute of frauds because it was memorialized only in an e-mail; (3) that, even if it is possible for an e-mail to satisfy the applicable statute of frauds, the e-mail in question contained only the automatically generated identification block of the brokerage firm from which it was sent and therefore was not properly subscribed; and (4) that neither Spinelli, the broker for defendant whose e-mail referred to the right of first refusal, nor his firm (Massey Knakal) had authority under the firm's listing agreement to contractually bind defendant. As previously stated, we reverse on the ground that there was no meeting of the minds on the right of first refusal embodied in Spinelli's e-mail counterproposal to sell the property for $52 million, and any oral or implied-in-fact agreement on a right of first refusal with reference to a different price term is barred by the statute of frauds.
At the outset of our analysis, we reject defendant's argument that an e-mail can never constitute a writing that satisfies the statute of frauds of General Obligations Law § 5-703 ("Conveyances and contracts concerning real property required to be in writing"). Again, this Court has held in other contexts that e-mails may satisfy the statute of frauds ( see Williamson v Delsener, 59 AD3d 291 [stipulation settling litigation]; Stevens v Publicis S.A., 50 AD3d 253, 255-256, lv dismissed 10 NY3d 930 [modification of written agreement barring oral changes], citing Rosenfeld v Zerneck, 4 Misc 3d 193 [Sup Ct, Kings County 2004] [stating, in dicta, that an e-mail reflecting an agreement to sell real property may satisfy the statute of frauds, although the e-mail at issue failed to state all essential terms]; see also Bazak Intl. Corp. v Tarrant Apparel Group, 378 F Supp 2d 377, 383-386 [SD NY 2005] [holding that e-mail satisfied the requirement of a "writing in confirmation of the contract" under New York's UCC 2-201 (2)]). We reaffirm the holdings of Williamson and Stevens.
Each of the first three subdivisions of General Obligations Law § 5-703 sets forth a writing requirement applicable in specified circumstances. Defendant relies on General Obligations Law § 5-703 (3), which provides:
"A contract to devise real property or establish a trust of real property, or any interest therein or right with reference thereto, is void unless the contract or some note or memorandum thereof is in writing and subscribed by the party to be charged there-with, or by his lawfully authorized agent."
However, there is authority treating General Obligations Law § 5-703 (2) as the provision applicable to a contract creating a right of first refusal as to real property ( see Pfeil v Cappiello, 29 AD3d 1187, 1188). General Obligations Law § 5-703 (2) provides:
"A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing."
Under either subdivision, our analysis of whether the writing requirement may be satisfied by an e-mail would be the same.
Cf. MP Innovations, Inc. v Atlantic Horizon Intl., Inc., 72 AD3d 571, 572 (2010) (e-mail did not satisfy the statute of frauds because it failed to "identify a number of material terms" of the alleged agreement); Page v Muze, Inc., 270 AD2d 401, 401 (2000) (e-mail did not satisfy the statute of frauds where it "made only an equivocal reference" to the right claimed by plaintiff and "was not shown to have satisfied the subscription requirement").
Somewhat paradoxically, in support of its argument that an e-mail is not a writing for these purposes, defendant relies on a 1994 amendment of the general statute of frauds (General Obligations Law § 5-701 [b], enacted by L 1994, ch 467, § 1, as amended by L 2002, ch 286) specifically providing that, as to certain "qualified financial contracts" defined in the legislation ( see General Obligations Law § 5-701 [b] [2]), the record of an "electronic communication" (General Obligations Law § 5-701 [b] [3] [a]), such as a retrieved e-mail, satisfies the statute of frauds ( see General Obligations Law § 5-701 [b] [1]; see also General Obligations Law § 5-701 [b] [4] ["For purposes of this subdivision, the tangible written text produced by . . . computer retrieval or other process by which electronic signals are transmitted by telephone or otherwise shall constitute a writing"]). In essence, defendant argues that, since the Legislature specifically amended only General Obligations Law § 5-701 (which does not apply to "contracts concerning real property" covered by General Obligations Law § 5-703) to specify that an e-mail or other electronic communication constitutes a writing — and even then only as to a specifically defined subset of the transactions covered by General Obligations Law § 5-701 — the implication is that an electronic communication cannot satisfy the statute of frauds for contracts outside the scope of the amendment. This argument might have had some plausibility as a matter of statutory construction when General Obligations Law § 5-701 (b) was first enacted. Sixteen years later, however, with e-mail omnipresent in both business and personal affairs, it is too late in the day to accept it.
See McKinney's Cons Laws of NY, Book 1, Statutes § 74 ("the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended"); § 197, Comment, at 368 ("that two independent statutes contain similar provisions does not require that an amendment of one be incorporated as an amendment to the other," since "[t]he Legislature can amend one or both, in its discretion"); § 240, Comment, at 411 ("the specific mention of one person or thing implies the exclusion of other persons or thing[s]"); but see § 76, Comment, at 169 ("rules of construction for a statute are to be invoked only where its language leaves its purpose and intent uncertain"); § 91, Comment, at 174 ("The object of these [rules of statutory construction] is not to lay down inflexible principles . . . but to render assistance in determining the legislative intent," and "[r]esort is had to the rules . . . only when it is necessary to apply them to ascertain the meaning of a statute").
We thus disagree with Vista Developers Corp. v VFP Realty LLC ( 17 Misc 3d 914 [Sup Ct, Queens County 2007]), which essentially accepted the argument made by defendant here ( see id. at 919-921).
In 1994, when General Obligations Law § 5-701 (b) was enacted, electronic communication was still relatively novel. The legislative history of the original amendment indicates that the background of the bill was that, by 1994, institutions entering into certain complex financial agreements (such as foreign exchange contracts, financial and commodity swaps, and other derivatives) had come to rely on e-mail and other electronic means of communication, rather than paper writings, to memorialize those transactions. As noted in one of the relevant legislative memoranda, "[i]n the marketplace, these agreements are considered binding from the moment agreement is reached" (Mem of Assembly Rules Comm in Support of L 1994, ch 467, 1994 NY Legis Ann, at 317). At that time, however, there was a perceived uncertainty whether such agreements were immediately enforceable under the statute of frauds if the parties entered into them through electronic means of communication ( see id. ["under current law there is a `gap' in that the agreement is not legally binding on a party unless and until the other party receives `a note or memorandum subscribed by the party to be charged therewith,' if to be performed over a period in excess of one year"]). To remove this uncertainty, the Legislature amended General Obligations Law § 5-701 to make clear that a "qualified financial contract [as defined] . . . is legally binding from the moment agreement is reached" (Senate Introducer Mem in Support, Bill Jacket, L 1994, ch 467, at 10).
That electronic communications were still relatively novel in 1994 is illustrated by the fact that a New York federal court, in a decision issued that year, deemed it advisable to explain what the Internet was and how it worked ( see MTV Networks, a Div. of Viacom Intl., Inc. v Curry, 867 F Supp 202, 203 nn 1, 2 [SD NY 1994]). The court noted that, at the time, "[a]n estimated 25 million individuals have some form of Internet access, and this audience is doubling each year" ( id. at 203 n 1).
The scholarly literature of the early 1990s recognized that whether the record of an electronic communication could satisfy the statute of frauds was an open question as of that time ( see DiPaolo, Note and Comment, The Application of the Uniform Commercial Code Section 2-201 Statute of Frauds to Electronic Commerce, 13 JL Com 143 [1993]; Wilkerson, Comment, Electronic Commerce under the U.C.C. Section 2-201 Statute of Frauds: Are Electronic Messages Enforceable?, 41 U Kan L Rev 403 [1992]; Electronic Messaging Services Task Force, The Commercial Use of Electronic Data Interchange — A Report and Model Trading Partner Agreement, 45 Bus Law 1645, 1682-1689 [1990]). The uncertainty persisted as late as 1998 ( see Robertson, Electronic Commerce on the Internet and the Statute of Frauds, 49 SC L Rev 787, 807-809 [1998]). According to the last cited article, as of the time of its writing, "no court has yet determined whether a computer-stored or computer-generated record satisfies the Statute of Frauds" ( id. at 804; but see Mirchel v RMJ Sec. Corp., 205 AD2d 388, 390 [holding in the alternative that "documentary evidence in defendant's own files, including . . . computer records," satisfied the writing requirement of General Obligations Law § 5-1105]).
Today, a decade into the twenty-first century, e-mail is no longer a novelty. Although not enacted by New York, the Uniform Electronic Transactions Act (7A ULA [part 1] 211 [1999] [UETA]), which was promulgated in 1999 and has been enacted by 47 states, the District of Columbia, and the Virgin Islands ( see 7A ULA [part 1], 2010 Pocket Part, at 146), provides, inter alia, that "[a] contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation" (UETA § 7 [b]) and that "[i]f a law requires a record to be in writing, an electronic record satisfies the law" (UETA § 7 [c]). Moreover, in 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act ( 15 USC § 7001 et seq., as added by Pub L 106-229, 114 US Stat 464 [E-SIGN]), which provides in pertinent part:
See also UETA § 7, Official Comment 1 (the "fundamental premise" of the UETA is "that the medium in which a record, signature, or contract is created, presented or retained does not affect [its] legal significance").
"Notwithstanding any statute, regulation, or other rule of law . . ., with respect to any transaction in or affecting interstate or foreign commerce —
"(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and"
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation" ( 15 USC § 7001 [a]).
It could be argued (although plaintiff has not done so) that E-SIGN applies here based on plaintiffs Italian nationality, and perhaps on other grounds as well ( see 12 Lawrence's Anderson on the Uniform Commercial Code, E-SIGN § 101:2 [3d ed]). However, we need not determine whether the transaction at issue here was one "in or affecting interstate or foreign commerce" for purposes of E-SIGN. Any uncertainty that existed in 1994 as to whether the record of an electronic communication satisfied the statute of frauds under New York state law has long since been resolved.
In 1999, the New York Legislature enacted the Electronic Signatures and Records Act (ESRA), now article III (formerly article I) of the State Technology Law (L 1999, ch 4, § 2, as amended by L 2002, ch 314, and by L 2004, ch 437). ESRA does not specifically address whether an "electronic record" constitutes a writing for purposes of the statute of frauds. However, ESRA does provide, in pertinent part:
ESRA defines "electronic record" to mean "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities" (ESRA § 302 [2]). E-SIGN defines the same term as "a contract or other record created, generated, sent, communicated, received, or stored by electronic means" ( 15 USC § 7006).
"In accordance with this section [directing the state Office for Technology to establish rules and regulations governing the use of electronic signatures and authentication] unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (ESRA § 304 [2]).
In 2002, the Legislature enacted certain amendments to ESRA. Among other things, the 2002 legislation amended ESRA's definition of the term "electronic signature" to conform to E-SIGN's definition of the same term ( see L 2002, ch 314, § 2). Section 1 of chapter 314 of the Laws of 2002 sets forth the Legislature's intent in amending ESRA as follows:
. ESRA § 302 (3) now defines "electronic signature" to mean "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record." This substantially conforms to the definition of "electronic signature" set forth in E-SIGN ( 15 USC § 7006).
"Legislative intent. [ESRA] is intended to support and encourage electronic commerce and electronic government by allowing people to use electronic signatures and electronic records in lieu of handwritten signatures and paper documents. Subsequent to the adoption of ESRA, [E-SIGN] was adopted [by Congress] to permit and encourage the expansion of electronic commerce in interstate and foreign commercial transactions. Like ESRA, this federal law authorizes the use and acceptance of electronic signatures and electronic records in the context of these commercial transactions. It is the intent of this bill to ensure that these laws continue to complement each other in achieving their stated purposes. Rather than seeking to modify, limit or supercede federal law [as E-SIGN permits states to do to a defined extent], the legislature finds that it is in the best interest of the state of New York, its citizens, businesses and government entities for State and federal law to work in tandem to promote the use of electronic technology in the everyday lives and transactions of such individuals and entities. It is with this finding in mind that the following amendments are made to the state technology law" (2002 McKinney's Session Laws of NY, at 1034).
By adopting the foregoing statement of legislative intent, New York's lawmakers appear to have chosen to incorporate the substantive terms of E-SIGN into New York state law.12 Thus, we conclude that E-SIGN's requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper ( 15 USC § 7001 [a]; see Lawrence's Anderson on the Uniform Commercial Code, E-SIGN §§ 101:4, 101:6; Nimmer, Law of Computer Technology §§ 13:13, 13:15) is part of New York law, whether or not the transaction at issue is a matter "in or affecting interstate or foreign commerce."
An alternative approach, which the Legislature evidently chose not to take, would have been to adopt UETA, as most states have done. E-SIGN permits states to supersede the federal act by enacting UETA ( see 15 USC § 7002 [a]).
In this regard, the legislative memorandum in support of the 2002 amendments to ESRA demonstrates that the bill was motivated by a desire to eliminate possible inconsistencies between ESRA and E-SIGN. The memorandum states:
"It is essential . . . to the success and promotion of electronic commerce and electronic government for both laws to be interpreted and applied consistently. Determining which law applies to particular transactions has caused confusion in the business community and thereby has an inhibiting effect on the expansion of electronic commerce in New York. Consequently, [the Office for Technology] is proposing that ESRA be amended to eliminate some of the definitional differences between ESRA and [E-SIGN]" (Senate Mem in Support of L 2002, ch 314, 2002 McKinney's Session Laws of NY, at 1881).
Even in the absence of E-SIGN and the 2002 statement of legislative intent, given the vast growth in the last decade and a half in the number of people and entities regularly using e-mail, we would conclude that the terms "writing" and "subscribed" in General Obligations Law § 5-703 should now be construed to include, respectively, records of electronic communications and electronic signatures, notwithstanding the limited scope of the 1994 amendment of the general statute of frauds. As one scholar has observed, "In most cases, . . . definitions of a `writing' or a `signature' are transferable to the electronic context and the primary issue is whether the writing contains the relevant, required content" (Nimmer, Law of Computer Technology § 13:12). As much as a communication originally written or typed on paper, an e-mail retrievable from computer storage serves the purpose of the statute of frauds by providing "`some objective guaranty, other than word of mouth, that there really has been some deal'" ( Bazak Intl. Corp. v Mast Indus., 73 NY2d 113, 120, quoting 1954 Report of NY Law Rev Commn, at 119; see also Bazak Intl. Corp. v Tarrant Apparel Group, 378 F Supp 2d at 383-384 ["because `(u)nder any computer storage method, the computer system "remembers" the message even after being turned off,' whether or not the e-mail is eventually printed on paper or saved on the server, it remains an objectively observable and tangible record that such a confirmation exists"], quoting Wilkerson, 41 U Kan L Rev at 412). The writing and subscription requirements of the statute of frauds have been held flexible enough to accommodate earlier innovations in communications technology, such as the telegram, the telex, and the fax ( see Robertson, 49 SC L Rev at 797-803; Wilkerson, 41 U Kan L Rev at 409-414), and the same logic used to reach those results "justif[ies] a rule that permits e-mail or other electronic media to constitute an acceptable memorandum, so long as the other requirements of a valid memorandum are met" (10 Lord, Williston on Contracts § 29:23, at 592 [4th ed]; see also Shattuck v Klotzbach, 14 Mass L Rptr 360, 2001 WL 1839720, *4, 2001 Mass Super LEXIS 642, *9-10 [2001] [decided before state's adoption of UETA]; Maker, Of Keystrokes and Ballpoints: Real Estate and the Statute of Frauds in the Electronic Age, 80 NY St BJ [No. 6] 46, 47 [July/Aug. 2008] [the "similarity between telegrams and e-mails cogently argues for the importation of `telegram jurisprudence' into the world of e-mails"]).
This approach seems to be consistent with the current weight of authority nationwide ( see John E. Theuman, Annotation, Satisfaction of Statute of Frauds by E-Mail, 110 ALR5th 277, 283, § 2 ["Courts addressing this question have . . . determined on a case-by-case basis whether the particular e-mail messages . . . satisfy the elements of the applicable Statute of Frauds provision, an approach which may imply acceptance of the general proposition that e-mails can satisfy the Statute of Frauds in a proper case"]).
Notwithstanding that an e-mail may satisfy the statute of frauds, we conclude that the motion should have been granted and the complaint dismissed. Even if the e-mail on which plaintiff relies would satisfy General Obligations Law § 5-703, the allegations of the complaint itself, together with plaintiffs admissions and undisputed documentary evidence in the record, establish, as a matter of law, that there was never a meeting of the minds between the parties on the terms of the proposed right of first refusal set forth in the February 12, 2007 e-mail sent by Spinelli, defendant's broker. Again, the e-mail, in response to plaintiffs prior offer to purchase the property for $50 million, made a "[c]ounteroffer" to sell the property for $52 million and, during the period of plaintiffs anticipated pre-contractual due diligence, to subject the property to a "first right of refusal on any legitimate, better offer during a 30 day period" (emphasis added). Thus, the offer of a right of first refusal was inextricably linked to the proposed purchase price of $52 million; without at least an agreement in principle on price, the words "better offer" would be meaningless. As discussed below, plaintiffs own allegations, as well as the undisputed documentary evidence, make plain that there was never any tentative agreement on the $52 million figure set forth in the e-mail.
The draft contract sent by defendant's counsel to plaintiffs counsel on or about February 16, 2007 contained a price term of $50 million. Standing alone, this might raise a question of whether a mistake was made in the preparation of the draft contract, and, if so, whether the conduct of plaintiffs agents in contacting defendant to conduct due diligence constituted an acceptance of the right of first refusal set forth in Spinelli's e-mail. Plaintiff himself, however, has eliminated any such question by making clear, through admissions in his complaint and in his agent's affidavit opposing the motion to dismiss, that he never agreed to the $52 million figure. The complaint alleges that, "[s]ignificantly," the $50 million draft contract was "consistent with Plaintiffs offer without any indication that the contract was not to be considered a definitive offer to sell the Property for $50 million." Similarly, plaintiffs representative in the negotiations, Federico Santini, states in his affidavit that "[t]he dissemination of the $50 million contract, prepared by Defendants' own counsel," meant that Spinelli's e-mail "must be read to simply mean that a counteroffer was potentially under discussion" — in other words, that there was no meeting of the minds on the $52 million figure, which plaintiff, by his own account, rejected ( see Gram v Mutual Life Ins. Co. of N.Y., 300 NY 375, 382 [1950] ["It is a fundamental rule of contract law that an acceptance must comply with the terms of the offer"]; Homayouni v Banque Paribus, 241 AD2d 375, 376 ["whenever a purported acceptance is even slightly at variance with the terms of an offer, the qualified response operates as a rejection and termination of — and substitution for — the initially offered terms"]).
If the foregoing left any room for doubt as to the terms of the alleged agreement on which plaintiff is suing, nowhere in his appellate brief does plaintiff even mention that the same e-mail he invokes to satisfy the statute of frauds offered to sell him the property for $52 million, not $50 million. Indeed, plaintiffs brief frankly takes the position that the parties agreed on a price of $50 million:
"In Mr. Spinelli's email [ sic], [defendant] duly acknowledged [plaintiff's] offer to purchase the Property for $50 million and provided [plaintiff] with a `first right of refusal on any legitimate, better offer during a 30 day period.' Thereafter, [defendant] forwarded a Contract to [plaintiff] unambiguously incorporating the terms of the Email [ sic] between Mr. Spinelli and [plaintiffs broker] and the agreement between [defendant] and [plaintiff] for the purchase and sale of the Property for $50 million" (brief for plaintiff-respondent at 7 [record citations omitted]).
Thus, plaintiff himself avers that his suit is not based on any agreement that he would enjoy the right of first refusal set forth in Spinelli's e-mail — which, to reiterate, was linked to the $52 million counteroffer contained in the same e-mail — but on an alleged agreement that he would enjoy a right of first refusal linked to a contemplated purchase price of $50 million. It may be that the parties did reach such an agreement but, if they did, that agreement was oral or implied-in-fact, as it is not documented by the writings in the record, whether those writings are viewed individually or in aggregate. In this regard, it bears emphasis that a right to match any offer "better" than $52 million — as set forth in the e-mail on which plaintiff relies — is entirely different from a right to match any offer at all or any offer better than $50 million — the latter being the undocumented right plaintiff apparently claims he was granted. It follows that the latter alleged right of first refusal cannot be pieced together from the Spinelli e-mail (offering a right of first refusal linked to a $52 million price term) and the subsequently forwarded draft contract (containing a $50 million price term but silent as to any right of first refusal). Since the essential terms of the right of first refusal plaintiff seeks to enforce are not set forth in any writing or group of writings, the applicable statute of frauds (General Obligations Law § 5-703) bars this action.
Indeed, the alleged third-party offer of $52 million would not have triggered the right to match an offer "better" than $52 million set forth in Spinelli's e-mail.
Plaintiff does not argue that he may avoid the bar of the statute of frauds to the extent his due diligence efforts constitute "part performance" under General Obligations Law § 5-703 (4). In any event, plaintiffs due diligence efforts would not qualify as "part performance" for these purposes because such conduct was not unequivocally referable to the alleged right of first refusal sought to be enforced (see Chan v Shew Foo Chin, 62 AD3d 471).
Finally, as previously noted, defendant makes two additional arguments. The first of these is that the "signature block" at the bottom of the Spinelli e-mail (identifying the writer and his title, firm, address, and telephone and fax numbers) was automatically generated by the e-mail system rather than deliberately typed and therefore does not qualify as an intentional subscription for purposes of the statute of frauds ( see Parma Tile Mosaic Marble Co. v Estate of Short, 87 NY2d 524). Defendant's remaining argument is that, even if Spinelli "subscribed" the e-mail within the meaning of General Obligations Law § 5-703, neither he nor his brokerage firm, Massey Knakal, had authority to enter into binding contracts on defendant's behalf. Given that the complaint must be dismissed for the reason already discussed, we need not resolve whether either of these additional arguments would furnish independent grounds for dismissing the complaint on a pre-answer, pre-discovery motion.
Accordingly, the order of the Supreme Court, New York County (Herman Cahn, J.), entered December 15, 2008, which, to the extent appealed from, denied the motion of defendant-appellant Grunberg 55 LLC to dismiss the complaint as against it, should be reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Order, Supreme Court, New York County, entered December 15, 2008, reversed, on the law, with costs, and the motion of defendant-appellant Grunberg 55 LLC to dismiss the complaint as against it granted. The Clerk is directed to enter judgment accordingly.
Next, petitioner's time in prison was discussed. The Board also observed that petitioner did not have any new discipline since the last hearing and that his prior discipline record was "very minimal." In addition to the impressive amount of counseling and programming petitioner had participated in before the last hearing, petitioner also completed several more programs in the interim between the 2007 and 2009 hearings, including another anger management program and "Path to Prosperity."
Also discussed was the new psychological evaluation. Entitled "Comprehensive Risk Assessment," the purpose of the evaluation was to assess petitioner's "violence potential in the free community." It concluded, "[a]fter weighing all of the data from the available records, the clinical interview, and the risk assessment data" that "Mr. Kler presents a relatively Very Low Risk for violence in the free community." In doing so, the assessment reviewed petitioner's parole plans, his mental health history, his "insight/self assessment," his "remorse and insight into life crime," his criminal history, his institutional history and programming, and his potential for violence based on the available empirical data and risk assessment tools. The Board quickly acknowledged that all the objective data in the evaluation indicated petitioner was a low risk, but also read into the record the section of the report where the evaluator observed that he "did not get the sense that Mr. Kler actually fully understands how he could have committed this crime against his own infant child and he did not satisfactorily explain why he beat the baby over a period of four months. His remorse for having committed the crime is limited by the limited extent to which he understands his behavior at the time."
Petitioner's parole plans were also explored by the Board. As he had at the last hearing, petitioner presented several detailed parole plans. They included plans for parole in India, if he is deported, and plans within California in Placer County (where his wife lives), Alameda County (the county where he was convicted), and Southern California. All of the plans included housing, jobs offers, and numerous letters of support.
After hearing the evidence, the Board granted parole. In doing so, the Board reviewed the events of the crime, including petitioner's initial lies about how his daughter died and then his acceptance of responsibility for the crime. Petitioner's lack of criminal record, his "stable social history," and his record in prison were all mentioned in support of parole. Particularly noteworthy to the Board was that petitioner "kept working" on his programming and counseling while challenging the 2007 denial through the court system: "That was important for us to see and that did speak positively of you here today." In fact, the Board observed that over his 20 years in prison, petitioner has "done a lot of work" to gain insight and maturity. Also noted by the Board were petitioner's positive psychological evaluations. Upon granting parole, the Board set the term at 19 years.
5. The Governor's Reversal fn_
Pursuant to his constitutional prerogative, the Governor reversed the Board's grant of parole. Regarding the crime itself, the Governor found it to be "especially atrocious because [petitioner] was in a position of trust regarding his particularly vulnerable baby daughter." Additionally, the Governor expressed his "concern that Kler lacks full insight into the circumstances of the murder," evinced by several factors, including petitioner's faulty memory and his "minimization of responsibility." Because of this lack of insight, the Governor concluded that petitioner "does not fully comprehend his murderous conduct" and "has not adequately explained why he beat his daughter for four months prior to her death," leading the Governor to conclude "that Kler would still present a current, unreasonable risk of danger to society if released at this time."
DISCUSSION
I. May — and Should — We Consider This Petition in the First Instance?
After the Governor's reversal, petitioner filed the instant petition without first seeking relief in the trial court. The Governor argues that rule 8.385(c)(2) of the California Rules of Court prohibits us from entertaining this petition in the first instance. It is true that rule 8.385, which was enacted in response to In re Roberts (2005) 36 Cal.4th 575 [ 31 Cal.Rptr.3d 458, 115 P.3d 1121] ( Roberts), requires a petition challenging denial of parole to be first filed in the superior court. But the rule is inconsistent with our state Constitution and the Roberts decision.
All future rule references are to the California Rules of Court unless stated otherwise.
(1) The California Rules of Court are enacted by the Judicial Council of California. The Judicial Council, which is charged by the state Constitution with "improv[ing] the administration of justice," is authorized to "adopt rules for court administration, practice and procedure," which shall "not be inconsistent with statute." (Cal. Const., art. VI, § 6, subd. (d).) "The rules have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions." ( In re Richard 5. (1991) 54 Cal.3d 857, 863 [ 2 Cal.Rptr.2d 2, 819 P.2d 843].)
(2) Rule 8.385(c)(2) states that "[a] Court of Appeal must deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole or the petitioner's suitability for parole if the issue was not first adjudicated by the trial court that rendered the underlying judgment." (Rule 8.385(c)(2), italics added.) Although the word "must" is not unclear, any possible ambiguity is eradicated by rule 1.5, which explains that" l[m]ust' is mandatory," while "`[s]hould' expresses a preference or a nonbinding recommendation." (Rule 1.5(b)(1) (5).) Thus, rule 8.385 requires an appellate court to deny without prejudice a petition for writ of habeas corpus challenging a parole decision unless it was first presented to the trial court. The Advisory Committee comment to rule 8.385 explains that "[s]ubdivision (c)(2) is based on the California Supreme Court decision in In re Roberts[, supra,] 36 Cal.4th 575, which provides that petitions for writ of habeas corpus challenging denial or suitability for parole are first to be adjudicated in the trial court that rendered the underlying judgment." (Advisory Com. com., Deerings Ann. Codes, Rules (2010 supp.) foll. rule 8.385, p. 142.)
This requirement is inconsistent with our state Constitution. As petitioner points out, this court — like all courts in California — has original jurisdiction in writ proceedings. Article VI, section 10 of the California Constitution provides that "[t]he Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings." This "original jurisdiction" means that a petition for writ of habeas corpus may be filed in the first instant in the superior court, Court of Appeal, or the California Supreme Court. ( People v. Romero (1994) 8 Cal.4th 728, 737 [ 35 Cal.Rptr.2d 270, 883 P.2d 388].)
Having original jurisdiction and exercising it are two separate things. It has long been the law in California that, while a Court of Appeal may have original jurisdiction in a habeas corpus proceeding, it has the discretion to deny a petition without prejudice if it has not been first presented to the trial court. As the Fifth District Court of Appeal observed almost half a century ago: "There is no question but that this court has jurisdiction to issue the writ of habeas corpus. [Citation.] But this court has discretion to refuse to issue the writ as an exercise of original jurisdiction on the ground that application has not been made therefor in a lower court in the first instance." ( In re Hillery (1962) 202 Cal.App.2d 293, 294 [ 20 Cal.Rptr. 759].) In that case, the petition, which was filed directly in the Court of Appeal, was denied because the petitioner did not show "that any extraordinary reason exists for action by this court, rather than by the Superior Court of the State of California ( Ibid.)
(3) Roberts does not overturn that long-standing rule. In Roberts, the California Supreme Court addressed which trial court should hear a habeas corpus petition challenging denial or suitability for parole: the superior court in the county of conviction or the superior court in the county of incarceration. ( Roberts, supra, 36 Cal.4th at pp. 579-580.) In one of its closing paragraphs, the Roberts court "directed]" that, "among the three levels of state courts, a habeas corpus petition challenging a decision of the parole board should be filed in the superior court, which should entertain in the first instance the petition." ( Id. at p. 593, italics added.) And, as In re Hillery instructs, in most instances, a habeas corpus petition "should" be filed in the superior court. ( In re Hillery, supra, 202 Cal.App.2d at p. 294.) But the language in Roberts does not divest the Courts of Appeal of original jurisdiction in petitions for writ of habeas corpus, as granted by article VI, section 10 of the California Constitution. Nor does it dictate that in all cases such habeas corpus petitions must be filed in the superior court — only that challenges to parole "should" first be filed in the superior court ( Roberts, supra, 36 Cal.4th at p. 593) unless "extraordinary reason exists for action by" the appellate court in the first instance ( In re Hillery, at p. 294). Thus, we conclude that rule 8.385 is inconsistent with the California Constitution to the extent it requires petitions for writ of habeas corpus challenging denial of parole to be first filed in the superior court; additionally, the rule goes beyond the dictates in Roberts, which states that such petitions "should" first be heard at the trial level. ( Roberts, at p. 593.)
This case presents an "extraordinary" situation justifying the exercise of our constitutional prerogative. Most habeas corpus petitions challenging denial or suitability for parole do not follow a reversal by the Court of Appeal. This case does, of course. Indeed, here, the issues presented directly flow from our prior decision and the limited hearing conducted after our decision. As such, no court is better suited to first consider this petition; no court is more familiar with the intricate details of the case. Thus, we find this to be one of the rare cases where the directive that "a habeas corpus petition challenging a decision of the parole board should be filed in the superior court . . ." ( Roberts, supra, 36 Cal.4th at p. 593) does not apply.
II. The Governor's Reversal Was Not Supported By "Some Evidence" That Petitioner Remains An Unreasonable Risk For Violence If Released fn_
This finding is not unprecedented. We have previously allowed a habeas corpus to be directly filed in our court in In re Scott (2005) 133 Cal.App.4th 573 [ 34 Cal.Rptr.3d 905] ( Scott II), which presented itself in the same posture as this case: we reversed the Board in In re Scott (2004) 119 Cal.App.4th 871 [ 15 Cal.Rptr.3d 32] ( Scott I); the Board subsequently granted parole upon remand. When the Governor reversed the Board's grant, petitioner Scott filed his petition directly in this court and we considered the case. ( Scott II, at p. 578.) In another case presenting unusual circumstances, the court in In re Gaul (2009) 170 Cal.App.4th 20 [ 87 Cal.Rptr.3d 736], entertained in the first instance a habeas corpus petition challenging the parole denial where that court was concurrently entertaining petitioner's habeas corpus from a prior hearing. ( Id. at p. 31.)
"The state may not deprive any person of life, liberty, or property without due process of law. ( U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) `[T]he due process clause requires, among other things, that the factual basis of a decision by the Board [or Governor] denying parole must be premised upon some evidence relevant to the factors the Board is required to consider.' ( In re Rosenkrantz (2002) 29 Cal.4th 616, 663.) In summarizing the due process that must be accorded a prison inmate eligible for release on parole, our Supreme Court has made clear that the Board and the Governor exercise great — but not unbounded — discretion: `the Board "shall normally set a parole release date" one year prior to the inmate's minimum eligible parole release date, and shall set the date "in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public. . . ." ([Pen. Code,] § 3041, subd. (a), italics added.) Subdivision (b) of section 3041 provides that a release date must be set "unless [the Board] determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." [Citation.]' ( In re Lawrence (2008) 44 Cal.4th 1181, 1201-1202 ( Lawrence).) In making that determination, `[t]itle 15, section 2281 of the California Code of Regulations [(Regs., § 2281)] sets forth the factors to be considered by the Board in carrying out the mandate of the statute. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. (Regs., § 2281, subd. (a).) The regulation also lists several circumstances relating to unsuitability for parole . . . and the mitigating circumstances of the crime. (Regs., § 2281, subd. (d).) Finally, the regulation explains that the foregoing circumstances "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2281, subds. (c), (d).)' ( Lawrence, at pp. 1202-1203, fins. omitted.)
"The regulatory factors include `"the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs., § 2281, subd. (b).)' ( Lawrence, supra, 44 Cal.4th at p. 1202, fn. 6.)
"The factors showing an inmate unsuitable for release on parole `are: (1) a commitment offense carried out in an "especially heinous, atrocious or cruel manner"; (2) a "[p]revious [r]ecord of [v]iolence"; (3) "a history of unstable or tumultuous relationships with others"; (4) "[s]adistic [s]exual [o]ffenses"; (5) "a lengthy history of severe mental problems related to the offense"; and (6) "[t]he prisoner has engaged in serious misconduct in prison or jail." (Regs., § 2281, subd. (c)(1)-(6).) This subdivision further provides that "the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., § 2281, subd. (c).)' ( Lawrence, supra, 44 Cal.4th at p. 1202, fn. 7.)
"On the other hand, factors showing an inmate suitable for release `are: (1) the absence of a juvenile record; (2) "reasonably stable relationships with others"; (3) signs of remorse; (4) a crime committed "as the result of significant stress in [the prisoner's] life"; (5) battered woman syndrome; (6) the lack of "any significant history of violent crime"; (7) "[t]he prisoner's present age reduces the probability of recidivism"; (8) "[t]he prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release"; and (9) the inmate's "[i]nstitutional activities indicate an enhanced ability to function within the law upon release." (Regs., § 2281, subd. (d)(1)-(9).)' ( Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8.)
"The Governor may conduct a de novo review of the Board's decisions on the basis of the same factors the Board is required to consider. ( Lawrence, supra, 44 Cal.4th at p. 1203, fn. 9; Cal. Const., art. V, § 8, subd. (b); Pen. Code, § 3041.2.) `As long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision.' ( In re Rosenkrantz, supra, 29 Cal.4th at p. 677.) It is clear, however, that `the aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness . . .,' and the relevant inquiry is therefore `" whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude."' ( In re Shaputis (2008) 44 Cal.4th 1241, 1254-1255 ( Shaputis), italics added.)
" Lawrence and Shaputis instruct that, in reviewing parole determinations by the Governor, `[o]ur deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. [Citation.] This does not mean, however, that evidence suggesting a commitment offense was "especially heinous" or "particularly egregious" will eternally provide adequate support for a decision that an inmate is unsuitable for parole. . . . [T]he Legislature specifically contemplated both that the Board "shall normally" grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative to the determination of current dangerousness.' ( Lawrence, supra, 44 Cal.4th at p. 1226.)
"In other words, as we have previously observed, the exceedingly deferential nature of the `some evidence' standard does not convert a reviewing court `"into a potted plant."' ( Lawrence, supra, 44 Cal.4th at pp. 1211-1212, quoting [ Scott I, supra,] 119 Cal.App.4th 871, 898. . . .) We must ensure that the denial of parole is based on `some evidence' of current dangerousness. `[S]uch evidence "`must have some indicia of reliability.'"' ( Scott I, at p. 899.) `[T]he "some evidence" test may be understood as meaning that suitability determinations must have some rational basis in fact.' ([ Scott II, supra,] 133 Cal.App.4th 573, 590, fn. 6. . . .) As Justice Moreno stated neatly in his concurring opinion in Lawrence: `a parole date shall normally be granted except when some evidence of current dangerousness, after considering the totality of the circumstances, justifies denial of parole.' ( Lawrence, supra, 44 Cal.4th at p. 1230 (conc. opn. of Moreno, J.), italics added.)" ( Calderon, supra, 184 Cal.App.4th at pp. 683-686.)
The Governor's reversal of Kler's parole does not survive scrutiny under the foregoing principles.
A. No evidence shows the commitment offense is predictive of Kler's current dangerousness fn_
The commitment offense is one of only two factors indicative of unsuitability a prisoner cannot change (the other being his prior record of violence), and reliance on such an immutable factor may therefore be unfair and contrary to the rehabilitative goals of our penal system and the requirements of due process. ( Scott II, supra, 133 Cal.App.4th at pp. 594-595.) "The commitment offense can negate suitability only if the circumstances of the crime reliably established by evidence in the record rationally indicate that the offender will present an unreasonable public safety risk if released from prison," keeping in mind that "the predictive value of the commitment offense may be very questionable after a long period of time." ( Id. at p. 595, fn. omitted; accord, Lawrence, supra, 44 Cal.4th at pp. 1219-1221.)
As our high court has made clear, at some point, "when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released, would not currently be dangerous, his or her past offense may no longer constitute a reliable or accurate indicator of the prisoner's current dangerousness." ( Lawrence, supra, 44 Cal.4th at p. 1219, italics added.) Therefore, "when evaluating whether an inmate continues to pose a threat to public safety, both the Board and the Governor must consider all relevant statutory factors, including those that relate to postconviction conduct and rehabilitation." ( Ibid., italics added.) In doing so, "the paramount consideration for both the Board and the Governor under the governing statutes is whether the inmate currently poses a threat to public safety and thus may not be released on parole. [Citations.]" ( Id. at p. 1210.) Thus, as the Lawrence court explained, "`due consideration' of the specified factors requires more than rote recitation of the relevant factors with no reasoning establishing a rational nexus between those factors and the necessary basis for the ultimate decision — the determination of current dangerousness. `It is well established that a policy of rejecting parole solely upon the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law.' [Citation.]" ( Ibid.)
Here, the Governor does not articulate a nexus between the nature of the offense and Kler's current dangerousness, more than two decades after the commitment offense. Lawrence and Shaputis make clear that "`the relevant inquiry for a reviewing court is not merely whether an inmate's crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.'" ( Shaputis, supra, 44 Cal.4th at p. 1255, quoting Lawrence, supra, 44 Cal.4th at p. 1221.) Even assuming the crime is shockingly vicious or otherwise heinous, this "does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner's pre-or postincarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner's dangerousness that derive from his or her commission of the commitment offense remain probative of the statutory determination of a continuing threat to public safety." ( Lawrence, at p. 1214.) As we have previously held, otherwise such a statement simply "could be repeated . . . until [the petitioner] dies or is rendered helpless by the infirmities of sickness or age." ( Scott II, supra, 133 Cal.App.4th at p. 595, fn. 8.) Because he does not articulate a nexus between the nature of petitioner's offense and current dangerousness, the Governor may not properly rely on this factor in reversing the Board's grant of parole.
B. The postconviction factors the Governor relied upon do not provide evidence Kler is currently dangerous fn_
As noted above, the Governor found that Kler currently poses a threat to public safety because he "lacks full insight into the circumstances of the murder and his role in the offense." In explaining this finding, the Governor expressed his concern that petitioner minimized his responsibility, "does not fully comprehend his murderous conduct," and "has not adequately explained why he beat his daughter for four months prior to her death." Because of this, the Governor concludes "that Kler would still present a current, unreasonable risk of danger to society if released at this time." Just as his reliance on the nature of the commitment offense to reverse parole was improper, the Governor's finding that petitioner is currently dangerous because of "lack of insight" is legally insufficient, and is unsupported by the record.
To support this finding, the Governor's letter reversing petitioner's parole first chronicled the evolution of petitioner's acceptance of responsibility for the crime and prior beatings of Simron, beginning with his claims of innocence and that the prior bruising was from accidents. Next, the Governor cited statements by the 2003, 2005, 2007, and 2009 Boards. The 2003 Board stated that it was "`not sure whether [petitioner is] truly and totally accepting responsibility for what [he] did.'" In 2005, the Board suggested petitioner participation in more "`self-help'" programs because of his "`continued minimization of [his] participation in the abuse of [his] daughter.'" The 2007 Board stated that "`the acknowledgement for the crime and the acceptance of total responsibility is only now starting to come out.'" And the 2009 Board stated that petitioner "`still want[s] to downplay'" his conduct. Also cited by the Governor was the 2009 mental-health evaluator's concern over petitioner's inability to "`fully explain how he could have beaten a baby to death. This aspect of the crime seems to be as puzzling to Mr. Kler as it is to others.'" Finally, the Governor found statements by petitioner and "[t]he letters of support from Kler's family and friends . . . troubling, as they suggest that Kler characterizes his baby daughter's death as nothing more than an unfortunate event." The Governor arrived at this conclusion because the letters of support "refer to Simron's murder as a `mistake,' `misfortune,' `bad luck,' or `accident,'" and petitioner "consistently referred to Simron's death as a `mistake.'" From all this, the Governor concluded that petitioner is minimizing his responsibility, "does not fully comprehend his murderous conduct," and, therefore, "lacks insight into his life crime."
Before explaining why the Governor's concern that petitioner lacks insight has no basis in the record, we repeat our observation in Calderon, supra, 184 Cal.App.4th 670: "Before August 21, 2008, the date Lawrence, supra, 44 Cal.4th 1181 and Shaputis, supra, 44 Cal.4th 1241 were decided, virtually all decisions of the Board and Governor denying parole relied primarily on the gravity of the commitment offense. (See Lawrence, at p. 1206 [noting `the practical reality that in every published judicial opinion [reviewing a parole decision], the decision of the Board or the Governor to deny or reverse a grant of parole has been founded in part or in whole upon a finding that the inmate committed the offense in an "especially heinous, atrocious or cruel manner"`].) In the aftermath of Lawrence and Shaputis, the denial of parole now seems usually based, at least in part, upon the inmate's asserted `lack of insight' in some respect, which has become the new talisman. [¶] The intensified interest in this very subjective factor — which is not among the criteria indicative of unsuitability for release on parole set forth in the governing regulations (Regs., §§ 2281, 2402) — derives, of course, from the Supreme Court's opinion in Shaputis, in which the Governor's reversal of a grant of parole was upheld because his reliance on the gravity of the inmate's commitment offense was coupled with concern about the inmate's `lack of insight into the murder and into the years of domestic violence that preceded it.' ( Shaputis, supra, 44 Cal.4th at p. 1258.) The weight placed on this factor by the Shaputis court has stimulated far greater use of it by the Board and Governor than was formerly the case. Considering that `lack of insight' is not among the factors indicative of unsuitability for parole specified in the sentencing regulations and has been rarely relied upon by the Board or Governor in the past, the increasing use of this factor is likely attributable to the belief of parole authorities that, as in Shaputis, `lack of insight' is more likely than any other factor to induce the courts to affirm the denial of parole. But the incantation of `lack of insight,' a more subjective factor than those specified in the regulations as indicative of unsuitability, has no talismanic quality. Like all evidence relied upon to find an inmate unsuitable for release on parole, `lack of insight' is probative of unsuitability only to the extent that it is both (1) demonstrably shown by the record and (2) rationally indicative of the inmate's current dangerousness. [¶] That was clearly the case in Shaputis. Despite powerful evidence he killed his wife intentionally, Shaputis still claimed the shooting was accidental. In addition to his unjustified denial of personal responsibility, a recent psychological assessment explained why Shaputis `seemed to have "limited . . . insight" regarding his antisocial behavior and the circumstance that his history of alcohol abuse was closely associated with his history of domestic violence.' ( Shaputis, . . . at p. 1251,)" ( Calderon, supra, 184 Cal.App.4th at pp. 688-690, fn. omitted.)
Turning to the case at hand, it is hard to know exactly what the Governor means by his statement that Kler "lacks insight into his life crime," given, as we just explained, "insight" is inherently subjective. (See Calderon, supra, 184 Cal.App.4th at p. 690.) As in Calderon, "we assume the Shaputis court assigned the word `insight' its ordinary meaning, which is `perception,' `discernment,' or `[u]nderstanding.'" ( Ibid., quoting 7 Oxford English Dict. (2d ed. 1989), p. 1026.) So, presumably, by saying Kler "lacks insight into his life crime," the Governor means only that, because Kler does not adequately understand his role in the commission of his crime, he fails to appreciate why he committed the crime, and this failure renders him presently dangerous. This reasoning has no support in the record.
Kler fully acknowledged at the 2007 and 2009 hearing his role in the commission of his offense and the circumstances behind it. The murder was the product of numerous significantly stressful events occurring at the same time, driving him to a crescendo of frustration, resulting in his loss of self-control. As we described in our 2009 decision, "[i]n discussing the commitment offense, petitioner explained the circumstances leading to Simron's death: He had recently immigrated to the United States from his native India `with a dream that I would be very successful' and was single-minded towards that end, to the point that he worked day and night for nine months straight. Given that he had also recently married and had a child, he was also under considerable stress. Because of this drive and stress, `whenever [the] baby cried, it irritated' him. He explained that his drive for success, the stress he was under at work and at home, and the irritation all contributed to losing control and inflicting mortal injuries on his daughter, which occurred shortly after 2:30 or 3:00 a.m. after he had just finished working and gone to sleep." ( In re Kler, supra, A121800, at pp. 6-7.)
At the 2009 hearing, petitioner explained that, because of his upbringing, he did not seek out help to alleviate that frustration: "I was immature and I was raised the way that we were taught that the man never cried. Man never complained. And I kept all the feelings to myself. I never told my wife I couldn't handle it. I can't handle this. So I didn't know at that time there is many other ways that I know right now to release the pressure. So I took all the pressure and released on her."
The fallacy of the Governor's claim petitioner lacks insight is also borne out by the most recent psychological evaluation of Kler, a nine-page forensic mental health assessment conducted on February 6, 2009, by forensic psychologist Martin H. Williams, Ph.D. This report was based not only on Dr. Williams's interview with Kler, but also on his assessment of numerous "collateral sources," such as Kler's CDCR central file (C-File), CDCR unit health record, and previous forensic mental health assessments of Kler. Additionally, Dr. Williams utilized two "empirically based" guides concerning the "risk of future violence," namely "the Psychopathy Checklist-Revised (PCL-R) and the Historical-Clinical-Risk Management-20 (HCR-20)."
Echoing his testimony at both the 2007 and 2009 hearing is petitioner's explanation of the crime to Dr. Williams. In the section aptly named "Inmate's Understanding of Life Crime," Dr. Williams states: "Mr. Kler places his crime in the context of extreme stress, sleep deprivation and overwork. He states he was a recent immigrant to the US and wanted to realize the American Dream. He worked very hard as an insurance agent with Farmers Insurance. He states he worked until 3AM and then awoke again at 6AM. He says he was under tremendous stress and could not tolerate the crying of his 10 month old daughter. [¶] On the night in question, his wife was at work due to a schedule change at the electronics plant where she was an assembler. Mr. Kler states that the wife usually cared for the baby at night. He states that when his wife learned she had to work that night, Mr. Kler assured her that he could care for the baby. Mr. Kler states that the baby awoke, and he fed her a bottle. However, the baby did not stop crying after the feeding. Mr. Kler states that he hit the baby, hoping it would stop her crying. It did not, and he again hit her. Mr. Kler reports that the more he hit the baby, the louder she would cry. He admits beating her badly until he noticed her breathing was labored. He picked her up and tried to comfort her. The fire department was called, and she died at the hospital. Mr. Kler states, `Sure I beat her, so she wouldn't cry, but I never beat her to kill her.' [¶] Mr. Kler explains, `My main goal was to succeed, succeed, succeed, I was under so much stress. I never asked anybody for help, I was on my own. I was very successful in the insurance company, and we were planning to buy a home in Newark.' Mr. Kler states that his hitting of the child took place over a period of about four months."
Later, in the "Remorse and Insight Into Life Crime" section, Dr. Williams explained: "Mr. Kler cries as he speaks to me. He states, `I never understood that she was crying because that was her only way to communicate at the time, she knew no language. I understand that now, but I did not understand that at the time. She was my own blood, she was my own child.' [¶] Mr. Kler appears to be very remorseful, and he freely admits all aspects of the crime. However, other than extreme stress and sleep deprivation, Mr. Kler cannot fully explain how he could have beaten a baby to death. This aspect of the crime seems as puzzling to Mr. Kler as it is to others."
In the section entitled "Insight/Self-Assessment," Dr. Williams states that he found Kler to be sincerely remorseful and insightful: "Mr. Kler's overall demeanor and his presentation appeared to be consistent with his stated religious beliefs and stated remorse. Although it is possible that Mr. Kler was merely stating that which was socially appropriate under the circumstances, my professional judgment is that Mr. Kler was sincere. Mr. Kler certainly has the intelligence to dissimulate based on his understanding of the responses the Parole Board would consider desirable. However, Mr. Kler is also a very earnest individual and actually appears to be `an open book.'"
The Governor's conclusion that Kler is currently dangerous due to his lack of insight into the circumstances behind his crime wholly ignores this undisputed evidence, and thereby distorts the record. But, the Governor may not do that. As we stated in In re Moses (2010) 182 Cal.App.4th 1279, 1308, "[t]he Governor cannot simply ignore the undisputed evidence of . . . taking responsibility and repeated expressing of remorse." Nor does simply parroting the phrase "lack of insight" address the pertinent question: Whether the inmate currently constitutes an unreasonable risk of dangerousness if released. The objective evidence here says petitioner does not. Both the PCL-R and HCR-20 find petitioner to be a "very low risk." On the Level of Service/Case Management Inventory (LS/CMI) (an actuarial instrument designed to evaluate levels of risk to recidivate), petitioner's "score indicates that he is in the very low category, having scored lower than 99% of the North American sample of incarcerated male offenders." After "weighing all of the data from the available records, the clinic interview, and the risk assessment data, [Dr. Williams] opined that Mr. Kler presents a relatively Very Low Risk for violence in the free community."
Of course, the Governor is not bound by the psychological report's finding and he may exercise his own judgment in determining whether to reverse a grant of parole. ( In re Lazor (2009) 172 Cal.App.4th 1185, 1202 [recommendation in psychological evaluation "does not necessarily dictate the . . . parole decision"].) Thus, we turn to the factors cited by the Governor in support of his conclusion. Regarding petitioner's Page 25 purported minimizing of responsibility, we addressed a similar finding by the 2007 Board that "petitioner's `acceptance of total responsibility is only now starting to come out,'" and found it unsupported by the record because "[f]or almost 10 years, petitioner has consistently admitted and accepted responsibility for his prior abuse Simron." ( In re Kler, supra, A121800, at p. 14.) We noted that "[i]t is true that petitioner testified before the Board that prior to the morning in question he only remembers having slapped Simron. Yet he specifically accepted full responsibility for causing Simron's preexisting broken ribs, which he acknowledged could not have been caused by mere slapping. Petitioner's inability to remember exactly how he previously injured his daughter is thus relatively insignificant. [¶] Moreover, denying petitioner parole because he did not remember prior instances of hitting his child, but only slapping her (while accepting that, in view of her serious prior injuries she had been hit and only he could have been responsible) places petitioner in an impossible situation. If, taking the cue from the Board, he stated that he now remembered hitting the child, the Board could deny parole on the ground that petitioner's acceptance of responsibility was recent, still evolving, and incomplete. The process of determining whether to grant or deny parole does not permit placing an inmate in such a catch-22. Decisions must be made on the basis of the evidence presented and, as we have said, the uncontradicted evidence shows that, whether or not he remembered the nature of the beatings that took place before the morning of his daughter's death (i.e., whether it consisted of slapping or hitting), petitioner has long accepted personal responsibility for the commission of the prior beatings that resulted in her preexisting broken ribs. Under the facts here, the failure to remember specific prior acts does not suggest a failure to accept full responsibility. [¶] Nor did petitioner accept responsibility begrudgingly. He openly acknowledged the prior abuse and that he was the sole perpetrator. Nor did he try to minimize or deflect his personal responsibility. Petitioner's acceptance of such responsibility was noted by all the prison or mental health evaluators whose psychological reports uniformly concluded Page 26 that petitioner is an excellent candidate for parole." ( In re Kler, supra, A121800, at pp. 14-15.)
Nonetheless, the Attorney General, arguing that the Governor's conclusion is supported by "some evidence," points to petitioner's repeated statements that, prior to the murder, petitioner remembers slapping, not hitting, his daughter, "[d]espite the uncontroverted evidence that the victim suffered broken ribs on two to four occasions before her death." From this the Attorney General concludes that "[i]n essence, if Kler could not accurately describe how he previously abused his infant daughter, it is reasonable to conclude that he would do it again."
This position is undercut by recent Court of Appeal decisions. For instance, in In re Juarez (2010) 182 Cal.App.4th 1316, the Board denied parole, in part because Mr. Juarez could not remember his commitment offense due to a PCP blackout. The Court of Appeal reversed: "Juarez's failure to recall the details of his commitment offense or certain previous criminal activities has no bearing on his current dangerousness in light of his taking responsibility for the crime and his substance abuse problems, the sincerity of which is not disputed. As the assistant district attorney stated at the Board hearing, Juarez's failure to recall the details of the commitment offense `is not dispositive of anything.'" ( Id. at pp. 1341-1342.)
Similarly, the Third Appellate District granted relief where the petitioner insisted he killed his girlfriend accidentally, as "[petitioner's] version of the shooting of the victim was not physically impossible and did not strain credulity such that his denial of an intentional killing was delusional, dishonest, or irrational." ( In re Palermo (2009) 171 Cal.App.4th 1096, 1112.) There, the "defendant accepted `full responsibility' for his crime and expressed complete remorse; he participated effectively in rehabilitative programs while in prison; and the psychologists who evaluated him opined that he did not represent a risk of danger to the public if released on parole. Under these circumstances, his continuing insistence that the killing was the unintentional result of his foolish conduct (a claim which is not necessarily inconsistent with the evidence) does not support the Board's finding that he remains a danger to public safety." ( Ibid.)
Additionally, the evidence before the 2009 Board belies the Attorney General's position. Petitioner continues to only recall slapping his daughter prior to the murder, but still accepts full responsibility for breaking her ribs — and acknowledges that it would take more than slapping to cause such injuries. What petitioner "minimizes" is his memory, not his culpability. And, despite the Attorney's General's unsupported pop-psychology contentions to the contrary, there is no evidence in the record that petitioner's faulty memory indicates that he would be an unreasonable risk for violence if released on parole.
Nor is anything changed by the statement in the 2009 mental health evaluation that the Governor relies upon. First, as noted above, that evaluation is extremely positive, concluding that petitioner is a "very low risk." Moreover, the Governor cherry-picks two sentences, taken out of context of the rest of the evaluation, and condemns petitioner for not being able to explain a "puzzle" — i.e., how he could kill his own child — that "seems as puzzling to Mr. Kler as it is to others." (Italics added.) The Governor's conclusion that the inability to explain the unexplainable equates to a lack of insight or minimizing his responsibility is neither explained nor supported in the record. As noted above, the report is overwhelmingly positive and the two sentences relied upon the Governor cannot be stripped of that context. Nor do those two sentences constitute "some evidence" of current dangerousness. Rather, the Governor's reasoning places petitioner in another catch-22: according to the Governor, petitioner lacks insight because he cannot answer a question that has no satisfactory answer — why someone would kill their own child. The fact that this is as puzzling to Kler "as it is to others" does not make him an unreasonable risk of dangerousness.
Finally, the Governor is wrong in concluding that use of the word "mistake" shows that petitioner is minimizing responsibility. First, under the definition of that word, Simron's death was a "mistake." According to the Cambridge Dictionary of Page 28 American English, a mistake is "an action or decision that is wrong or produces a result that is not correct or not intended." (See http://dictionaries.cambridge.org/define.asp?key=mistake *1+0 dict=A.) Similarly, Merriam-Webster's Collegiate Dictionary defines the noun mistake as "a wrong judgment." (Webster's 11th New Collegiate Dictionary (2003) p. 795.) Certainly, petitioner's murder of Simron was "an action . . . that [was] wrong" and a "wrong judgment." Second, the context of Kler's use of the word "mistake" undercuts the Governor's concerns. Petitioner is not a native English speaker, whose use of the language is far from perfect — a fact that is more than evident from the transcript of the hearing. The Governor is not permitted to seize upon one word, which is technically correct, to give the false impression that petitioner is cavalier about the murder. Indeed, review of the whole record shows that petitioner made a mistake, one that he explained at the recent 2009 Board hearing "deeply touched" him because he never "thought in my life that I would kill somebody, and [never] my own child." What he unquestionably does not do is treat the death of his first born child cavalierly.
More curious is the Governor's concern about the letters of support from petitioner's family and friends and how these letters indicate that petitioner should not be paroled. We confronted a slightly different twist on this same factor in the prior decision and found use of it to deny parole "inexplicable." ( In re Kler, supra, A121800, at p. 15.) In 2007, the Board found "`the letters from Mr. Kler's wife had some particularly disturbing information in them.'" ( Id. at p. 10.) Specifically, the Board said that "`she seems to be deeply in love or committed to her husband [and] stuck up completely and totally for him.'" ( Ibid.) As we summarized it, "[g]iven this `over the top' family support, the Board was not sure whether petitioner's wife and other family members would `stand up to' petitioner `if he were to be going down the wrong road.'" ( Ibid.) We found this "inexplicable," because "[i]t is difficult to understand how the loving support of petitioner's wife or other members of his family renders him an unreasonable risk to public safety. It cannot reasonably be inferred from his wife's letter that she would encourage or indulge assaultive or other criminal conduct on his part." ( Id. at p. 15.) Similarly, the imperfect word choices of petitioner's family and friends does not indicate that petitioner is a risk or that they would encourage or indulge assaultive or other criminal conduct by petitioner.
In sum, the factors relied upon by the Governor to find petitioner lacks insight are not supported by the record, nor do they lead to the conclusion that petitioner would be an unreasonable risk of violence if released on parole. As such, the Governor's reversal of the 2009 Board's grant of parole was constitutionally infirm and must be reversed.DISPOSITION
The petition for writ of habeas corpus is granted. The Governor is hereby ordered to vacate his decision of February 9, 2010, which reversed the Board's 2009 grant of parole. The Board's 2009 grant of parole is reinstated. In the interests of justice, this opinion is made final as to this court seven days from the date of filing. (Rule 8.387(b)(3)(A).)
Lambden, J., and Richman, J., concurred.
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