Diathesis And The California Courts


Yesterday’s post discussed how the meaning of “must” in Nevada Revised Statutes can depend upon whether a verb is in the passive voice. Here in California, I’ve made frequent sightings of discussions of the passive voice in opinions, including the following:

  • Capo for Better Representation v. Kelley, 158 Cal.App.4th 1455 (2008) (“The Legislature could have used the vaguer, passive voice for the residence requirement (e.g., “Each signers will personally sign the petition, on which the residence of the signer shall be printed”) and in fact it did use the passive voice for another requirement set forth in section 100 (the need for the consecutive numbering in the format of the petition). But it did not use the passive voice for the affixation-of-residence requirement. The contrast in voices underscores the intent of the Legislature for personal affixation by “each signer” of his or her residence address.”) (footnote omitted);
  • Belmont v. Comcast Cable Holdings, LLC, 151 Cal.App.4th 1224 (2007) (“We conclude, as did the court below, that a reasonable consumer would not likely be deceived by the mere use of the passive voice in the statements in the rate cards.”); and
  • Coso Energy Developers v. County of Inyo, 122 Cal.App.4th 1512 (2004) (“A sentence or clause written in the passive voice is not necessarily ambiguous.”).

Happy Pesach!

Yesterday, was the first day of Passover. If you’ve ever danced the Hora to the tune of Hava Nagila, I highly recommend that you see Hava Nagila (the Movie). Connection to California? At the beginning of the film, watch for some briefs scenes of Canter’s Deli on Fairfax in Los Angeles.


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