Judges and Judiciary
Jun. 26, 2002
Hearing the Fountain
SAN FRANCISCO - A defining moment for Associate Justice Maria P. Rivera of the 1st District Court of Appeal came at the Broadway Plaza mall in Walnut Creek.
Maria P. Rivera
Associate Justice, 1st District Court of Appeal, San Francisco
Career highlights: Appointed by Gov. Gray Davis, 2001; elected to Contra Costa County Superior Court, 1996; partner and of counsel, McCutchen Doyle Brown & Enersen, Walnut Creek, 1981-96; assistant U.S. attorney, San Francisco, 1979-81; deputy district attorney, San Francisco, 1978-79; associate, Morrison & Foerster, 1974-78.
Law school: University of San Francisco, 1974.
Age: 52
It was 1996. Rivera was then a veteran civil litigator embroiled in a hot runoff campaign for an open Contra Costa County Superior Court judgeship, facing a hard-line prosecutor who accused her of being soft on crime.
As she returned to her car after shopping, Rivera realized her rival's campaign literature had been affixed to every vehicle in the mall's mammoth parking lot.
John R. Quatman, her opponent and an Alameda County senior deputy district attorney, asserted that Rivera's of-counsel status at McCutchen Doyle Brown & Enersen's Walnut Creek office made her "a part-time lawyer," despite Rivera's heavy pro bono caseload. He also claimed she opposed the death penalty.
And Quatman took questionable credit for putting Polly Klass' murderer, Richard Allen Davis, behind bars back in 1977 on prior kidnapping charges - though detractors pointed out Quatman had had no role in Davis' plea bargain in that case but merely appeared at the sentencing hearing.
"He was way out of line campaigning on issues," Rivera, 52, said in a recent interview, referring to ethics rules that preclude judicial candidates from announcing public positions on questions they may be obliged to decide in court.
She declines to state her private view of the death penalty, but insists it's irrelevant because she is sworn to enforce all laws on the books. Gov. Gray Davis appointed her to the 1st District's Division Five in December. She took office Jan. 25.
"Seeing thousands of leaflets accusing me of things that were not true on every car, including my own, was tough," she said. "I cried on my husband's shoulder."
Spouse James J. Garrett, a Morrison & Foerster partner, told Rivera it was time for what is known in sports as a gut check.
"He explained that's when your team is behind 15 to 0 and the coach says all right, you guys, reach down," recalled Rivera. "I said, 'Wow.' It was a powerful moment for me, and it got me through."
Rivera was forced to seek a judgeship on the campaign trail because, as a Democrat, she was unable to win an appointment during the long stretch of California Republican governors from 1983 to 1999.
"Here was an eminently qualified woman who had her name in but was getting no consideration because of the political realities," said a fellow Contra Costa County Superior Court jurist, Harlan Grossman. "So when she finally saw the opportunity of an open seat, she ran with broad support and served with distinction."
Quatman denied conducting a hostile campaign.
"I was pretty polite to her," he said recently by phone from Whitefish, Mont., where he is now in private practice. "I had no animosity for Maria. I liked her, but I didn't think she was as qualified to be a superior court judge as I was."
Quatman attributed his loss at the polls to a judicial endorsement of Rivera by the Contra Costa Times. He said that was unfair because Rivera in 1990 represented the newspaper's then-publisher, Dean Lesher, in a successful battle before the California Supreme Court to overturn a local anti-growth initiative. Lesher Communications v. City of Walnut Creek, 52 Cal.3d 531.
"[The endorsement] was a big drawback for me, but she's turned out to be a hard-working, intelligent judge, good enough to advance to the Court of Appeal," Quatman said.
Rivera's electoral victory that November was decisive, and it catapulted her from the placid life of a land-use specialist to the raucous crucible of Contra Costa County's family court in Martinez, where she spent two years as supervising judge.
Longtime friend Palmer Madden said he was surprised by that turn in Rivera's career path.
"Family law ran against her grain, I thought," said Madden, a former State Bar president who has known Rivera since the early 1970s, when they were junior associates at Morrison & Foerster in San Francisco.
"In family law, you're in the business of handing out rough justice without much chance for preparation. Maria is so driven to strive for perfection that she's going to be a terrific appellate judge. I would never have the patience to master a record as she can."
Rivera agreed that family law was a challenge.
"You're dealing with vicious, frightening people, and of course the losers are the children," Rivera said. "It was chaos. You had hundreds and hundreds of cases. You had people standing in crowded hallways trying to put together a settlement."
Most unnerving was a lesson from her bailiff on what to do if she was grabbed as a hostage, Rivera said.
"I did have one guy go off on me, not physically, but there were lots of obscenities and pacing around. He appeared to be on something. I've had lawyers ream me, pounding the table, accusing me of corruption, screaming on the record, upsetting my reporter."
The knock-down, drag-out judicial election contest she'd endured looked in retrospect like job training for divorce court.
"Going on that campaign trail helped prepare me," she said. "I am so much stronger now. I learned the truth of the saying that a judge has to have the heart of a poet and the skin of rhino."
Battle-hardened, Rivera fought back when the mother in a custody dispute sought to disqualify her because she had held an ex parte hearing with an attorney for the child and because she'd granted an ex parte order granting temporary custody to the father.
"Two [of the mother's] lawyers double-teamed me in a highly emotional and angry attack," Rivera said.
Rivera refused to step away from the case, arguing she had done nothing wrong or even unusual. When San Francisco Superior Court Judge Alfred Chiantelli, sitting by assignment, granted the disqualification request, Rivera unsuccessfully petitioned the 1st District Court of Appeal for a writ of mandate to reverse him.
"I wanted there to be integrity in the process," Rivera said. "I didn't want litigants to be able to bump a judge. But Curle came down to say judges don't have standing, and I decided to end it. Principle can outweigh reality only so far."
Rivera referred to Curle v. Superior Court, 24 Cal.4th 1057 (2001), a case notorious within the judiciary because the state Supreme Court held that, because judges aren't parties to the cases they oversee, they cannot seek writs to challenge their disqualification.
Now, in the calm of her spacious new Court of Appeal chambers overlooking San Francisco's Civic Center Plaza, Rivera begins her day by switching on a fountain that sends a soothing sheet of water murmuring across a piece of slate.
It's a long way from the family law fray in Martinez, where the courthouse din overwhelmed her fountain's peaceful tones.
"Now I can hear it," she said. "This job is like a dream come true. As I look back I can see that this is where I always wanted to be. Research, analysis and writing are perfectly suited to my temperament."
Rivera got a tryout for her current post when the Judicial Council in 2000 assigned her to the 1st District's Division Five for a six-month tour of duty.
While there she wrote her panel's unanimous opinion in Barella v. Exchange Bank, 84 Cal. App.4th 793, an elegant nine-page holding in which Rivera employed the wisdom of the Bible and of Shakespeare to make the point that reputation is beyond price.
The case concerned John E. Barella, a Petaluma developer who sued for libel over an insulting e-mail by a bank's loan officer. Barella rejected the bank's $25,000 settlement offer because it contained a confidentiality agreement and no apology.
A jury awarded Barella $10,000, causing the bank to demand he pay its litigation expenses under a Code of Civil Procedure cost-shifting provision designed to encourage settlements by punishing litigants who win less at trial than they reject before court convenes.
Barella argued that the jury award was actually more valuable than the settlement offer because it included the intangible aspect of public vindication.
"We conclude that the task of valuing a confidentiality clause attached to a settlement offer in a defamation action is too subjective and, therefore, cannot be done," Rivera wrote. "Thus, a confidentiality condition in such a settlement offer will render the offer invalid for purposes of shifting costs to the plaintiff."
Along with case law, Rivera quoted Proverbs 22:1: "A good name is rather to be chosen than great riches."
She buttressed the Old Testament with a line from Richard II: "The purest treasure mortal times afford / Is spotless reputation."
Rivera called Barella "my very favorite case" and said she didn't have to consult Scripture to find the words she sought.
"My dad's an Episcopal bishop, and my sister and brother-in-law are priests," she said. "I had it at my fingertips."
She also offered an insight into how appellate judges work.
"In Barella I was working with a research attorney who didn't agree with me," she said, "so I asked her to be as forceful with me as possible regarding her position.
"Of course, first we had to decide whether to take the easy way out and decide the case on the facts, or make a bright line rule. You think: Will a rule be good for the bar, good for litigants, is it something the legal literature needs?"
Rivera was born in Visalia, attended Smith College in Massachusetts, and graduated from the University of San Francisco School of Law magna cum laude in 1974.
She clerked as an extern for California Supreme Court Justice Raymond Sullivan during her third year in law school and also worked for San Francisco Neighborhood Legal Assistance while in school.
Rivera worked briefly as a San Francisco deputy district attorney and as an assistant U.S. attorney, also in San Francisco, before joining Van Voorhis & Skaggs in Walnut Creek. That firm merged with McCutchen in 1985.
Here are some of Rivera's recent cases and the lawyers involved:
• Lauderdale Associates v. Department of Health Services (Contra Costa County Superior Court), 9601097
Plaintiffs: Roland G. Rapp, Scott J. Kiepen, Scott J. Harman, Rapp Kiepen & Harman, Pleasanton
Defense: Deputy Attorneys General Stephanie H. Wald and Ralph M. Johnson, San Francisco
• Wong v. Thrifty Corp., 97 Cal. App.4th 261
Plaintiff: Albert Lee, Oakland
Defense: Martin H. Orlick and Carol A. Jasinski, Arter & Hadden, San Francisco
• Barella v. Exchange Bank, 84 Cal.App.4th 793
Plaintiff: Michael D. Senneff and Bonnie A. Freeman, Senneff Freeman & Bluestone, Santa Rosa
Defense: Frederic D. Cohen and Mitchell C. Tilner, Horvitz & Levy, Encino
• West v. Bechtel Corp., 96 Cal. App.4th 966
Plaintiffs: W. Ruel Walker, Law Offices of Ruel Walker, Oakland; R. Stephen Goldstein, Goldstein Gellman Melbostad Gibson & Harris, San Francisco
Defense: Michael C. Hallerud, Thomas M. McInerney and Julie L. Maibach, Thelen Reid & Priest, San Francisco
• Jackson Plaza Homeowners Association v. Alcal Roofing and Insulation, 2002 DJDAR 5930.
Plaintiffs: Scott Williams, Williams Wester Hall & Nadler, Petaluma
Defense: John W. Chapman and Kurt T. Hendershott, Chapman & Intrieri, Alameda
John Roemer
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