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A San Francisco judge decided Wednesday that both Alex Popov and Patrick Hayashi have legitimate rights to Barry Bonds’ record-setting 73rd home run baseball. But neither is entitled to it. In a 12-page ruling, Superior Court Judge Kevin McCarthy ordered the ball sold, with the proceeds to be split between Popov, who caught the ball and held it briefly before being engulfed by a mob in the stands, and Hayashi, who emerged with it after a fierce skirmish. The ball is estimated to be worth between $1 million and $3 million. The decision did not please either man. They both had sought a definitive decision on who owns the ball that Bonds hit into Pacific Bell Park’s right field arcade in San Francisco on Oct. 7, 2001. Lawyers for both men were uncertain whether they would appeal. Solo Michael Lee, Hayashi’s lead counsel, wasn’t ready to accept McCarthy’s order sending the parties to Superior Court Judge Richard Kramer to decide how to implement the sale of the ball. “I don’t think we have to agree with the decision to send the case to Kramer” before deciding on an appeal, Lee said. The key issue for McCarthy to decide in the case was who had possession of the ball. He said there was no evidence to show Popov had retained possession of the ball as he was pushed to the pavement. “We will never know if Mr. Popov would have been able to retain control of the ball had the crowd not interfered with his efforts to do so,” the judge ruled. “Resolution of that question is the work of a psychic, not a judge.” The judge concluded that the most Popov could claim was “a legally cognizable pre-possessory interest” in the ball. On the other hand, the judge wrote, while Hayashi appeared to have done everything necessary to claim the ball, it was encumbered by the “qualified pre-possessory interest” of Popov. “At the time Mr. Hayashi came into the possession of the ball, it had, in effect, a cloud on its title.” Acknowledging that there is no California case directly on point, McCarthy cited an 1896 case that he said provides insight into Popov v. Hayashi, 400545. In Keron v. Cashman, 33 A. 1055, five boys found a sock that contained something heavy near some railroad tracks. After playing with it, they discovered its contents included $775. The court concluded “their legal claims to the property were of equal quality, therefore their entitlement to the property was also equal.” McCarthy also took notice that Popov was denied a chance to catch the ball by “the collective assault of a band of wrongdoers” — although he specifically found that Hayashi had done nothing wrong. “This case demands vindication of an important principle,” he added. “We are a nation governed by law, not by brute force.” McCarthy added that it’s especially important to uphold that principle “in cases that receive media attention.” Popov’s lead attorney, Martin Triano, said he was “gratified” that McCarthy recognized that his client had caught the ball, if only for a split-second. “I also think it’s great for fans that violence in the stands is not going to be tolerated,” said Triano, of the Law Office of Martin Triano in San Francisco. Hayashi’s attorneys were less satisfied with the ruling. Donald Tamaki, Hayashi’s co-counsel, characterized the judge’s concept of pre-possessory rights as unprecedented in California law. “We’ll have to take a look at that,” said Tamaki, of Minami, Lew & Tamaki in San Francisco. “It’s moving into unchartered waters.” Popov, a Berkeley, Calif., natural foods restaurateur, wanted to keep the ball, display it at his restaurant and enjoy the celebrity that comes with its ownership. He intended to hold a party after the ruling. “Now I’m not going to get the chance,” he said. “I’m not happy about that.” Hayashi, a former Silicon Valley computer engineer, has always said he was willing to sell the ball, but never said how much he would give to Popov. “I have to think about what a 50-50 split means,” he said after the ruling. “I just know that my legal bills are really high.” None of the attorneys would disclose their fee arrangement with their clients. Before trial began, Popov, Hayashi and their lawyers had settlement talks with two judges and a private judge, but could not reach an agreement. McCarthy’s decision sparked a buzz in San Francisco’s legal community, where lawyers were ready with their own opinions. “On the one hand it’s Solomonic, but even an umpire has got to call it safe or out, and there’s no between,” said Matthew Davis of Walkup, Melodia, Kelly & Echeverria. Attorney Steven Mayer said both men will get something, but neither will be able to call the ball his. “Both paid the penalty for their greed,” said the Howard, Rice, Nemerovski, Canady, Falk & Rabkin partner. McCarthy told the parties to reach an agreement before Dec. 30 on how to dispose of the ball, or return to court and have him fashion one for them. For now, the ball remains in a safe-deposit box. The court has the key.

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