Cal Biz Lit

Trial Court Strikes Blow For Common Sense In Anti-"Ladies Day" Case

    CalBizLit previously blogged here and here about that brave crusading lawyer and sometime litigant Alfred Rava's efforts to eliminate the scourge of business discrimination against fathers, who sustain humiliation and other forms of emotional distress when they are deprived of stupid hats and other ballpark giveaways on Mother's Day.  Now comes word of his efforts to assert a class action of the same type against Bear Valley Ski Resort.

    Didn't work out so well.  L.A. Superior Court Anthony Mohr denied Rava's motion to certify a class of 995 helpless victims of Ladies Day discrimination. Judge Mohr noted that because the Unruh Act, under which Rava proceeded, provides for minimum penalties of $4,000, there was no need for a class action. 

Assuming plaintiff succeeds on the merits, Bear Valley Ski Resort would be liable for mandatory statutory penalties of $4,000 X 995 putative class members.  The product of $3,980,000 constitutes a draconian sum that would strip Bear Valley of its assets.

You can read Judge Mohr's ruling here.  Some thoughtful commentary on Mr. Rava appears here.

    Hat tip to Legal Pad.  And when selecting the graphic to run with this post, I really wanted to use the brochure with the  "ski bear" homonym, but this is a family blog and I just couldn't do it.

What Does It Take To Allege A Cause of Action In California State Court?

    About six weeks ago, the US Supremes issued their pleading decision in Ashcroft v. Iqbal, ___ U.S. ___ (May 18, 2009, No. 07-1015).  The  Wall Street Journal quotes those ubiquitous "legal experts" as saying Iqbal may be the most important case of the term.  While Iqbal was a discrimination case, SCOTUS seems to impose requirements for pleading any cause of action much more stringent than many practioners may have assumed under FRCP, Rule 8's "short and plain statement of the claim" standard.

    Well, this blog isn't about federal practice;  it's about California practice.  And what is the standard for pleading a cause of action in the Golden State?  According to Code of Civil Procedure section 425.10(a)(1), a complaint must contain "a statement of the facts constituting the cause of action, in ordinary and concise language."  So what does that mean?  It means the plaintiff must allege "ultimate facts," not "conclusions of law."  Huh? 

    There are an awful lot of defense lawyers around these parts who cut their teeth in their formative years drafting demurrers (California's version of a FRCP Rule 12(b)(6) motion) addressing just whether or not complaints met this standard, and there are tons of appellate cases on the subject.  But the fact is, in a typical product liability or other personal injury tort case these attacks on the pleadings rarely achieve anything very useful and, fortunately, they seem to be less common than they used to be. 

    Anyway, some years ago, California's Judicial Council began adopting check box forms to be used as pleadings.  Besides taking away some of the more stylish flourishes that used to appear in pleadings in the olden days (". . . plaintiff alleges that she was injured in her health and her strength and in her ability to do her work, all resulting in damages in an amount presently unknown, but plaintiff will seek leave of this honorable court to amend this Complaint when the amount becomes known. . ."  etc., ad nauseum) these forms, while not mandatory,  have resulted in what we at CalBizLit sometimes call "no-notice pleading." 

    Here's what the Judicial Council considers to be an adequate allegation of a product liability cause of action.  Do you think filling out this form would get the plaintiff past Iqbal?  I'm thinking not so much.

    So that's reason 1,546 why defendants like Federal Court.

New Article on MMSEA / MSP Compliance

    The focus of this blog is usually California legal matters.   However, because the issue seems so important to everyone in the product liability defense world (and the tort world in general), CalBizLit put up a post and a a white paper on what we called the perfect storm caused by three events:  the 2003 amendments to the Medicare Act reinforcing Medicare's right to recover benefits from  tort settlements;   the Center for Medicare and Medicaid's (CMS)  retention of a new recovery contractor;  and Congress's enactment of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). 

    The upshot of all this was (a)  that product liability defendants faced double or even triple payment of Medicare's liens if they didn't make sure CMS was taken at the time of any settlement;  and (b)  defendants and insurers were being deputized to electronically report actions by Medicare recipients so the agency could make sure its rights were protected.  There's much more to it than this, and any company involved in personal injury litigation needs to get itself educated on MMSEA, and soon.

    Last month's issue of For The Defense, The Defense Research Institute's monthly mag, has a good article by Dorothy E. Kelly and Robert T. Lewis of Crowe Paradis, called The Next Chapter in Medicare Compliance.  DRI doesn't have its June issue up on line yet, but Crowe Paradis (which appears to have established a business to help companies with MMSEA compliance) has posted the article here.  Worth a look.

California: We May Be Broke, But We've Joined the Twenty-First Century

    As I posted here two and one half years ago, despite California's status as the home of Silicon Valley, the birthplace of Google, Amazon.com, Intel, Yahoo, Hewlett Packard, Oracle, McAfee, Intuit, Symantic and scores of other companies that used silicon and ones and zeroes to change the way we work, play, practice law, etc., California has had no statutes, no rules, and scarcely any case law addressing issues of electronic discovery.

    Late last year (as discussed here), the legislature finally passed an e-discovery act.  But at the time, the Governator and the legislature were at each others throats over the then projected $28 billion state budget deficit, Ahnuld was vetoing every non-budget bill that crossed his desk, and what was then AB 926 landed on the scrap heap.

    Well, as luck would have it, California now has a budget gap of more than $26 billion for one year, the treasury is paying its bills (and tax refunds) with IOUs, and the current donnybrook  between legislature and governor makes last December's squabble look trivial by comparison.  But while the governor is still talking about vetoing all non-budget related legislation, he did manage to take a moment away from the budget smack-down to sign AB 5, which is essentially the same as the act he vetoed last year.  The new act adds Code of Civil Procedure section 1985.8 specifically dealing with subpoenas of electronically stored data, adds a variety of related provisions throughout the Discovery Act, and addresses issues of reasonable accessibility and the format(s) in which electronically stored data shall be produced.  The entire act, which takes effect immediately,  is here.

Still More Chemicals Up For Proposition 65 Listing

    Now we all got a good chuckle over the Proposition 65 Cancer Identification Committee's recent action in listing marijuana smoke as a carcinogen (see:  Proposition 65 Now Protects Stoners.  As they say, however, "but seriously folks . . . ."

    The CIC voted on May 29 to prioritize 38 more chemicals for possible listing as carcinogens.  Nine were designated as high priority, and these include fluoride (yep, the stuff the dentists use, Crest puts in its toothpaste and many water districts add to the water), Perfluorooctanoic acid (PFOA) (a once-common surfactant used in Teflon, Goretex, Scotch Guard) and -- "towards the bottom of the 'High' category depending on exposure considerations" Diisononyl phthalate (DINP).

    Now, if past is prologue, it may be a long, long, time before the CIC gets to a chemical that is "towards the bottom of the 'High' category."  But if it ever does, look out.  The Proposition 65 plaintiff bar has been going after the plasticizer DEHP with a vengeance for the past eighteen months.  While DEHP is listed both as a Proposition 65 carcinogen and a reproductive toxin, there is likely no duty to provide a cancer warning for DEHP because of the trial court's decision in Baxter v. Denton (2004) 120 Cal.App.4th 333.  But until somebody proves that human exposures are below the MADL, there will be a duty to provide Proposition 65 warnings about that chemical's reproductive/developmental toxicity. 

    What does this have to do with DINP?  Well, for non-children's items, the substitute plasticizer of choice has been DINP (DINP is already banned on an interim basis pending further study by the recently enacted Consumer Product Safety Improvement Act).  If DINP makes it to the cancer list, the impact on manufacturers of inexpensive vinyl goods (think about just about any cheap soft plastic product you can imagine) is going to be huge.

    For more on Proposition 65 wackiness, you can always look at CalBizLit's collection of Proposition 65 posts here, or download my firm's White Paper on the subject here.

Cal Supremes Put Another Bullet in The Unfair Competition Law

    In a post here last May, I talked about the California Supreme Court's decision in In Re Tobacco II Cases (2009) 46 Cal.4th 298, suggesting that in that decision, the Supremes might have enlarged the field of potential litigation under California's notorious UCL, and I also gave a little history of how the UCL grew out of control, became a playground for uninjured bounty-hunters and eventually ran into a voter buzz-saw in 2006.

    Well, today the Supremes moved in the opposite direction, holding in Arias v. Superior Court (Angelos Dairy, RPI) (June 29, 2009) ___ Cal.4th ___ (S155965) and Amalgamated Transit Union, Local 1756, AFL-CIO et al. v. Superior Court (First Transit, Inc., et al., RPI) (June 29, 2009) ___Cal.4th___(S151615) that a UCL plaintiff who seeks to represent the interests of others must bring suit as a class action and meet class certification requirements.

Proposition 65 Now Protects Stoners

    Dude.  Two and one half years of CalBizLit, and finally, our first marijuana story.   I go away for a three day weekend and what happens?  California's Cancer Identification Committee lists marijuana smoke as a carcinogen.  Twelve months from now, look to see the Proposition 65 safe harbor warning on those baggies.

    The San Jose Mercury News quotes NORML's Allen St. Pierre:  "This will be a vexing series of conversations and negotiations."  Ya think?  Per the Merc, "St. Pierre believes it may accelerate what he calls the "pharmaceuticalization" of the drug: marijuana pills, arm patches, under-tongue sprays and suppositories," as well as vaporizors. 

    I love California, I really do.  But this is the second post in a week that feels like "Through the Looking Glass."

More on Removal -- Not Always Protection Against Big, Big Verdicts

   

I blogged last week on whether removal to Federal court was the best idea for defendants in product liability cases, the short version being, generally, yes.

    But it isn't a panacea.   Pierson v. Ford Motor Co., 3:06-cv-06503-PJH was a crash-worthiness case brought by bay area indie musician Dax Pierson, who was rendered a quadriplegic in a 2005 roll-over accident.  Ford dutifully removed the case.  The jury dutifully rendered its verdict against Ford last month for $18,349,391.

Well That Sure Didn't Take Long: OEHHA Adding 30 Chemicals To Proposition 65 List

    CalBizLit blogged here and here about the suit by Sierra Club and others to force expansion of the Proposition 65 list of carcinogens and reproductive / developmental toxicants.  As discussed, the Alameda County Superior Court ruled in April and May that Proposition 65 required the State to list all of the chemicals referred to by Labor Code sections 6382(b)(1) and 6382(d), including all reproductive / developmental toxicants for which threshhold limit values had been set by the American Conference of Governmental Industrial Hygienists.

    Now the lead agency for Proposition 65, California's Office of Environmental Health Hazard Assessment ("OEHHA") had issued notice that it intends to add 19 chemicals as reproductive or develomental toxicants (although three to be added are already there as reproductive toxicants and now being added as developmental, or vice verse) and 11 chemicals as carcinogens. 

    There's a comment period running until July 13.  But good luck with that.  As OEHHA notes in bold font, it won't look at scientific evidence:

Because these are ministerial listings, comments should be limited to the question whether IARC or NTP [or ACGIH in the case of the reproductive/developmental list] have identified the specific chemical or substance as a known or potential human or animal carcinogen [or developmental/reproductive risk].  Under this listing mechanism, OEHHA cannot consider scientific arguments concerning the weight or quality of the evidence and will not respond to such comments if they are submitted.

    This is even more "through the looking glass" than is usual with Proposition 65.

More Misuse of Discrimination Laws, Major League Baseball Division

    Last November, CalBizLit reported here on an unreported appellate decision favoring the Los Angeles Angels involving Mothers Day mom's only give-aways.  Short version:  Angels give tote bags to moms on Mothers Day, lawyer with too much time on his hands sues for discrimination, Angels decide to fight the case, win at trial court level, Court of Appeal tells plaintiff to go pound sand.  Good. Correct outcome.  Good for the Angels for fighting it.

    How disappointing to see my home team, the Oakland A's not only get swept by the Giants over this past  weekend but apparently capitulate in the face of a similar suit:  One Alfred G. Rava, an attorney from L.A., sues the A's over their egregious wrongdoing in depriving men of floppy plaid sunhats given away on Mothers Day, 2004.  Wall Street Journal and ESPN report that the A's have settled for $500K+ -- obviously small potatoes in the world of both class litigation and Major League Baseball, but still.  And Athletics Nation has the info for potential class members here.  Surprise, surprise:  it's a coupon settlement with gift certificates to Macys for class members and $260,000 in attorneys' fees.

    Pathetic.