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August 13, 2009


Craig McLaughlin

I have a different view of Gilman. There is a statute referenced in the case that governs lien priority, section 2897 enacted in 1872 as part of California's first Civil Code. The statute requires that liens created first in time prevail unless "other things" are not equal. Gilman was decided on public policy grounds without any evidence, fact finding or basis. It assumed that attorney liens as a class were superior over those of medical providers, whether or not the medical lien was prior. The Gilman court simply pointed out some differences between the lienors, which can be done in any case, and deemed them sufficiently unequal to justify its rule. It did so in contravention of existing law. See Waltrip, 164 Cal.App.4th 517, 526 (an attorney lien "does not have priority over prior liens on the same property"). Additionally, lien priority, is a function of legislative intent, not judicial fiat. See Guinn v. McReynolds (1918) 177 Cal. 230, 232, 237; Takehara v. H.C. Muddox Co. (1972) 8 Cal.3d 168, 172; Roseburg Loggers (1975) 14 Cal.3d 742, 750. Courts are not to engage in policy making without legislative enactment in support. Indeed, the policy must be tethered to some legislatively declared public policy or proof of some actual or threatened impact. Cel-Tech, (1999) 20 Cal.4th 163, 187; Green (1998) 19 Cal.4th 66, 80. The Gilman court did not point to a single study or any proof to support its activist new rule. If its theory of financial harm to the injured absent its rule were correct, it should not have been difficult for the court to point to a study or some evidence thereof in the 137 years since 2897 was enacted. It not up to the court, but is up to the legislature to make such a sweeping change. Two decades of legislative inaction is persuasive. Cel-Tech (1999) 20 Cal.4th 163, 178. Finally, the Gilman court acknowledged the danger that medical lienors that may not treat the injured if a later attorney's lien is deemed, ipso facto, superior. In its rule, Gilman court turned public policy on its head and subordinated the health if not life of the patient in favor of the financial interests of members of the bar.

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