San Mateo County Superior Court Judge Gerald Bushwald’s ruling is Wiped Out.

Supreme Court swipes away Martins Beach opinion

Surfers Tony Rose, left, 41, of Pacifica, and Jesse Quay, 38, of Oakland, go surfing at Martin's Beach in Half Moon Bay, Calif., on Thursday, Sept. 25, 2014. San Mateo County Superior Court judge on Wednesday ordered Silicon Valley mogul Vinod Khosla to reopen the road leading to the popular Martins Beach.(John Green/ Bay Area News Group)

A little-noticed decision by the California Supreme Court in a lawsuit involving Martins Beach could make life more difficult for the property owner, venture capitalist Vinod Khosla, in his long-running legal battle to keep the public off his coastal land.

And it delivers the latest repudiation to San Mateo County Superior Court Judge Gerald Buchwald, whose head-scratching 2014 ruling in the suit, brought by group of surfers calling themselves Friends of Martins Beach, now essentially has been wiped from the face of the Earth.

On July 20, the state high court ordered the depublication of an April ruling by the 1st District Court of Appeal in San Francisco in the Friends case, meaning the opinion will not appear in the appellate court’s official reports and may no longer be cited as precedent in other cases. The arcane judicial decree came without explanation.

That’s unfortunate for Khosla’s legal team, which had cited Buchwald’s ruling with fervor in a second, higher-profile lawsuit brought by the Surfrider Foundation, a case that is now awaiting a hearing before the same San Francisco appellate court. Both the Friends and Surfrider cases seek to restore public access to Martins Beach, but make different legal arguments.

The dispute over the picturesque San Mateo County beach began in 2010, when Khosla ended a decades-long practice under previous owners of allowing visitors onto the property, which is private except for the tidal zone, in exchange for a parking fee.

In his 2014 ruling, Buchwald decided that, because the ownership of Martins Beach dated back to a Mexican land grant in the 19th century, Khosla’s private property rights superceded the state’s authority to grant a right of way across his land.

“It’s a devastating blow no matter how you cut it,” Mark Massara, an attorney for Surfrider, said last week of the order to depublish. “His team relied heavily on that decision as a preemptive and overriding factor, and all of that is now legally inappropriate.”

An attorney for Khosla did not respond to a request for comment.

According to a 1993 article by the late UC Berkeley professor emeritus Stephen R. Barnett, the state high court typically depublishes an opinion when justices perceive it contains a fundamental flaw.

The appeals court opinion and the Supreme Court’s dropkick into oblivion combine to form a cascade of embarrassment for Buchwald, who plainly relished his involvement in the intricate case.

The oddest thing about Buchwald’s ruling was his still unexplained decision to grant Khosla ownership of the tidelands and submerged lands west of Martins Beach, land that generally belongs to the state, even though Khosla’s attorneys had not asked for title to the underwater realm.

The appellate court wiped away that mistake in April, upheld another part of Buchwald’s decision and reversed a third part, sending it back to Superior Court for trial. Now the whole thing must be tried again.

Friends attorney Gary Redenbacher said last week he was pleased with the decision to depublish. And he defended Buchwald. Despite their legal disagreements, he said, the judge was a gentleman.

“I wish more judges had his demeanor,” Redenbacher said in an email. “He clearly cared deeply about the issue, but as can be seen from the unanimous appellate decision, other judges did not agree with his analysis.”

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Filed under Hon. Judge Gerald Bushwald, San Mateo County Superior Court, Uncategorized

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