in some, lose some.
In his years as an appellate justice, John Zebrowski has made more than his fair share of cutting-edge law. Doing so, though, tends to get the attention of the California Supreme Court. So far Zebrowski's results have been mixed.
In Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, Zebrowski ruled that supervisors could not be held personally liable under state law for discriminatory job decisions. A year later, the First District Court of Appeal criticized Zebrowski's reasoning and went the other way -- but Zebrowski had the last laugh when the Supreme Court adopted his reasoning.
On the same day the First District was criticizing Janken, Zebrowski's Second District colleague Miriam Vogel issued an opinion ripping into Foster-Gardner Inc. v. National Union Fire Insurance, 56 Cal.App.4th 204, a Zebrowski opinion holding that insurers had to defend companies threatened with cleanup orders from the EPA. Vogel accused Zebrowsi's opinion of "fail[ing] to consider the threshold issues" and "rewrit[ing] an insurance policy to afford coverage where none was purchased." This time Zebrowski took the fall, as the Supreme Court agreed with Vogel and reversed Foster-Gardner.
Of course, it's not fair to make judgments based on two cases. Zebrowski produced a healthy 26 opinions between September 1996 and September 1998 despite sitting on a panel with a traditionally low publication rate. Many of his opinions, particularly the civil ones, are robust treatises on important legal issues, such as the proper test for determining whether a new administrative regulation has conferred a private right to sue; whether an ADR provider is disqualified from later litigating against a party for whom he has provided mediation services; and whether a homeowner's association may record in county land records its contention that a homeowner has violated covenants, conditions and restrictions. Finally, Zebrowski must have endeared himself to gamblers everywhere by ruling that a city ordinance allowing for the removal of "boisterous" or "offensive" people from casinos was not unconstitutionally void for vagueness.
A former civil practitioner, he issued only three opinions -- two of them quite terse -- in criminal cases.
On a personal level, Zebrowski scored points with court staff by attending a women lawyers event at which one of his research attorneys was honored.
Zebrowski's Division Two has been one of the most efficient on the Second District, with a median 90 days from briefing to decision in civil appeals, 66 in criminal cases.
