Did The Judge's Ruling Truly Decimate The Defendant's Contention? - California Corporate & Securities Law
Yesterday’s post concerned Justice M. Kathleen Butz’ recent holding 223 in Yee v. Am. Nat l Ins. Co ., 2015 Cal. App. LEXIS 257 (Cal. Ct. App. 2015). The case involved the California Controller’s attempt to examine the records of American National Insurance Company. When the insurer resisted, the Controller convinced the trial court to issue a preliminary injunction. Justice Butz observed that the “trial 223 court s preliminary injunction 223 ruling cogently decimates American National s contention . . .”. Most readers would understand her to mean that the ruling destroyed American National’s contention. However, that interpretation would be odds with both the etymology and historical meaning of the verb “decimate”.
“Decimate” is derived from the Latin word decem, which means ten, and the suffix – ate , which is used to form English verbs from Latin words. Historically, decimation was a disciplinary procedure used by the Romans and others pursuant to which every tenth soldier was punished (often by being bastinadoed to death). The Historian Polybius described the practice as follows:
συναθροίσας γὰρ τὸ στρατόπεδον ὁ χιλίαρχος καὶ προαγαγὼν εἰς μέσον τοὺς λελοιπότας, κατηγορεῖ πικρῶς, καὶ τὸ τέλος ποτὲ μὲν πέντε, ποτὲ δ ὀκτώ, ποτὲ δ εἴκοσι, τὸ δ ὅλον πρὸς τὸ πλῆθος αἰεὶ στοχαζόμενος, ὥστε δέκατον μάλιστα γίνεσθαι τῶν ἡμαρτηκότων, τοσούτους ἐκ πάντων κληροῦται τῶν ἀποδεδειλιακότων, καὶ τοὺς μὲν λαχόντας ξυλοκοπεῖ κατὰ τὸν ἄρτι ῥηθέντα 223 λόγον ἀπαραιτήτως, τοῖς δὲ λοιποῖς τὸ μέτρημα κριθὰς δοὺς ἀντὶ πυρῶν ἔξω κελεύει τοῦ χάρακος καὶ τῆς ἀσφαλείας ποιεῖσθαι τὴν παρεμβολήν. 223
The Tribune assembles 223 the legion, 223 calls the defaulters to the front, and, after administering a sharp rebuke, selects 223 five or eight or twenty out of them by lot, so that those selected should be about a tenth of those who have been guilty of the act of cowardice. These selected are punished with the fustuarium [cudgeling] without mercy; the rest are put on rations of barley instead of wheat, and are ordered to take up their quarters outside the vallum [palisades] and the protection of the camp. As all are equally in danger of having the lot fall on them, and as all alike who escape that, are made a conspicuous example of by having their rations of barley, the best possible means are thus taken to inspire fear for the future, and to correct the mischief which has actually occurred.
Polybius, Histories , Book 6, Chapter 38, Sections 2-3 (Evelyn S. Shuckburgh, translator). 223 Although decimation was brutal, unjust and calculated to instill fear, it did leave 90% of the troops physically unscathed.
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Yesterday’s post concerned Justice M. Kathleen Butz’ recent holding 223 in Yee v. Am. Nat l Ins. Co ., 2015 Cal. App. LEXIS 257 (Cal. Ct. App. 2015). The case involved the California Controller’s attempt to examine the records of American National Insurance Company. When the insurer resisted, the Controller convinced the trial court to issue a preliminary injunction. Justice Butz observed that the “trial 223 court s preliminary injunction 223 ruling cogently decimates American National s contention . . .”. Most readers would understand her to mean that the ruling destroyed American National’s contention. However, that interpretation would be odds with both the etymology and historical meaning of the verb “decimate”.
“Decimate” is derived from the Latin word decem, which means ten, and the suffix – ate , which is used to form English verbs from Latin words. Historically, decimation was a disciplinary procedure used by the Romans and others pursuant to which every tenth soldier was punished (often by being bastinadoed to death). The Historian Polybius described the practice as follows:
συναθροίσας γὰρ τὸ στρατόπεδον ὁ χιλίαρχος καὶ προαγαγὼν εἰς μέσον τοὺς λελοιπότας, κατηγορεῖ πικρῶς, καὶ τὸ τέλος ποτὲ μὲν πέντε, ποτὲ δ ὀκτώ, ποτὲ δ εἴκοσι, τὸ δ ὅλον πρὸς τὸ πλῆθος αἰεὶ στοχαζόμενος, ὥστε δέκατον μάλιστα γίνεσθαι τῶν ἡμαρτηκότων, τοσούτους ἐκ πάντων κληροῦται τῶν ἀποδεδειλιακότων, καὶ τοὺς μὲν λαχόντας ξυλοκοπεῖ κατὰ τὸν ἄρτι ῥηθέντα 223 λόγον ἀπαραιτήτως, τοῖς δὲ λοιποῖς τὸ μέτρημα κριθὰς δοὺς ἀντὶ πυρῶν ἔξω κελεύει τοῦ χάρακος καὶ τῆς ἀσφαλείας ποιεῖσθαι τὴν παρεμβολήν. 223
The Tribune assembles 223 the legion, 223 calls the defaulters to the front, and, after administering a sharp rebuke, selects 223 five or eight or twenty out of them by lot, so that those selected should be about a tenth of those who have been guilty of the act of cowardice. These selected are punished with the fustuarium [cudgeling] without mercy; the rest are put on rations of barley instead of wheat, and are ordered to take up their quarters outside the vallum [palisades] and the protection of the camp. As all are equally in danger of having the lot fall on them, and as all alike who escape that, are made a conspicuous example of by having their rations of barley, the best possible means are thus taken to inspire fear for the future, and to correct the mischief which has actually occurred.
Polybius, Histories , Book 6, Chapter 38, Sections 2-3 (Evelyn S. Shuckburgh, translator). 223 Although decimation was brutal, unjust and calculated to instill fear, it did leave 90% of the troops physically unscathed.
There Two Ways To Create An Obligation And Six Ways To Extinguish It Bill Would Clarify When Limited Partnership Life Begins California/Delaware Corporate Law Update What Exactly Does The SEC Mean By “Permit”? CalPERS Board Member Contests Attorney General’s Conflicts Position Finders Bill Finds Success In Assembly Committee
Conflict Minerals Bill In Suspense File (For Now) Concurrent Jurisdiction Found For Covered Class Actions Nevada Supreme Court Adopts Delaware Approach To Fair Value Burden Of Proof SEC Proposes John Wilkes 223 Booth Rules If I Were A Carpenter, I’d Build A Better Proxy CalPERS’ Annus Horribilis: 223 How Much Worse Will It Get?
TOPICS Accountants Administrative Procedure Attorney-Client 223 Privilege/Work Product Broker-Dealers California Securities Laws California Sui Generis CalPERS/CalSTRS Choice of Law/Conflict of Law Corporate Governance Department of Corporations Derivative Suits Enforcement & Investigations Fairness 223 Hearings Finance Lenders Financial Institutions Investment Advisers JOBS Act Legislation Limited 223 Liability Companies Mergers & Acquisitions Nevada Corporations Non-Compete Agreements Partnerships Private Placements Professional Responsibility 223 Pseudo-Foreign Corporations Public Records 223 Act/FOIA Secretary of State Securities Litigation Uncategorized Video
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