I recently, and belatedly, discovered Greg May's California Blog of Appeal. May is an instructive and very prolific blogger, who posts on "issues at the intersection of trial and appellate practice." And yesterday, he hosted Blawg Review #155. I'm adding to the list of CalBizLit's Approved Blogs.
The Weintraub Firm's engaging, if often over my head, IP Law blogreports here on the U.S. District Court, Central District's latest ruling in litigation between the heirs of the creators of Superman and DC Comics. Royalty rights from the Man of Steel have been in litigation for -- wait for it -- more than sixty years. IP Bloggives a good outline of the history of the litigation stemming from the original contract rights of Jerome Siegel and Joseph Shuster, who invented the big guy as Cleveland teenagers in 1933, granted rights to DC in 1938, and filed their first suit against the company in 1947 (they also litigated in 1969-70, and the current suit was filed in 2004). Most recently, the district court has denied summary judgment to DC, thus, as IP Law Blog observes, "ensuring another ten years of litigation."
This is the biggest decision we've seen in a product liability case in quite some time. Today, in Johnson v. American Standard (April 3, 2008) ___Cal.4th___ (S139184), the Cal Supremes squarely adopted the sophisticated user doctrine as a complete defense in strict liability failure to warn and negligent failure to warn cases. The court adopted the doctrine right out of Restatement, Second of Torts, Section 388, subd.(b) comment (k). And under the newly declared California rule, it doesn't matter whether or not the particular plaintiff is a sophisticated user:
"A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm or danger, if the sophisticated user knew or should have known of that risk, harm or danger. It would be nearly impossible for a manufacturer to determine whether a given user or member of the sophisticated group actual has knowledge of the dangers because of the infinite number of user idiosyncrasies. . . .individuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class. If they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the manufacturer.
The court leaves open one important question: what if the manufacturer sells to the employer, and it is the employer who is alleged to be the sophisticated user? While that was not the scenario here, it was in In re Related Asbestos Cases (D.C. Cal. 1982) 543 F.Supp. 1142, where Federal District Court Judge Peckham held that the Navy's status as a sophisticated user was an affirmative defense in product liability matters brought by its former employees. In today's Johnson decision, the Supreme Court cited Judge Peckham's decision repeatedly.
The main purpose of this blog (other than posting random music videos from YouTube) is to provide help to non-California companies and others who only occasionally have to deal with litigation in the Golden State. But here's why what's happening in California is important to companies in every state: The New York Times reports on a UC Davis Law Review study showing that the California Supreme Court is the most influential state supreme court in the United States. Shepard's Citation Service shows that from 1940 to 2005, decisions of the California Supremes were followed by other state courts 1260 times. In second and third place were Washington (942) and Colorado (848). Kentucky came in last, with 177.
So here's a shout-out to you non-Californians: Read about California on CalBizLit.com. Those wacky California Supreme Court decisions may be coming your way.
For those of you who are late arrivals to the party, back in the old days we used to have large amounts of litigation under California's UCL (Business and Professions Code sections 17200 and following). Plaintiffs' lawyers would find an industry they could challenge based on hyper-technical, meaningless violations of obscure laws and regulations, and have one client sue everyone in the industry "acting in the public interest." It mattered not whether the plaintiff had ever done business with, had any connection with, or even heard of any of the defendant businesses.
Then those killjoys the California voters came along and enacted Proposition 64, prohibiting private enforcement actions unless the plaintiff had "suffered injury in fact and lost money or property as a result" of the defendant's acts. And that amendment to the law -- with its revolutionary premise that people who are wronged are the ones who get a remedy -- seems to have shut down most of the UCL litigation.
And the Court of Appeal further found there was nothing wrong with the trial court entering judgment five weeks later, before the plaintiff had a chance to confer with the court about amending his complaint to add a new plaintiff that actually had seen the representation. Thus, Mr. O'Brien was deprived of the right to lead the charge protecting consumers against fraudulent misrepresentations by these defendants.
And what was the false representation? Mr. O'Brien bought an Audi license
plate frame. Stamped on the back of the package were the words "Made in USA." O'Brien alleged that it was not, in fact, made in the USA. He admitted he had no complaints about the quality of the license plate frame, which "looked good," "was nice," "appeared to be new" and fit the expectations he had when he placed the order.
Quelle horror! I just can't understand why the California voters would want to put a stop to this kind of nonsense.
Friday off-topic post:
RIP Israel "Cachao" Lopez, bassist and the inventor of Mambo, passed away last Saturday at age 89 in Florida.
Last week, I posted about contractual attorney fee provisions, and situations where a prevailing party could be awarded attorneys’ fees because of a provision in a contract. This week, the subject is the award of fees in civil rights, employment and public interest litigation. This is a long post, so I'm putting the rest of it after the jump. When all three posts are up, I'll probably try to incorporate them all into a white paper.
So the record is clear, CalBizLit is an avid fan of college football's University of California Golden Bears, and an ever hopeful fan of the same institution's men's round-ball squad, which just squeaked by its first round in the obscurity of the NIT (before a home crowd of, ahem 1900). And demonstrating a triumph of west-coast bias over sports acumen and common sense, he's picked UCLA to beat Kansas in the big dance.
I'm also well aware of, and concerned about the abuses of college sports. The fact is, in big time sports there are parallel educational institutions for athletes and non-athletes. The system often fails to serve all but the top-tier athletes, and they often leave long before graduation anyway (See The Game of Life, for example. So I'd had some interest in White v. NCAA, Central District No. CV 06-0999, an anti-trust class suit by basketball and football players contending that "full ride" scholarships just always, somehow, seemed to come up a few thou short of the real cost of an education.
The original purpose of this blog was to provide commentary on California law for out-of-state companies and others who only occasionally have to deal with litigation here in the Golden State. And one area where I get many questions in my practice has to do with attorneys’ fees and California’s fee-shifting statutes.
I’ve been trying to get around to writing a white paper on the subject, and haven’t been able to do it (that pesky law practice of mine keeps getting in the way). So instead, I’m going to try to put together a series of posts, probably three of them, discussing the fundamental rules having to do with fee shifting. In today’s post, I’ll be talking about the basic rule, where the parties pay their own fees, and Civil Code section 1717, California’s contractual fees reciprocity statute. The second post will be about the public attorney general statute, fees in civil rights and employment litigation, lodestars and multipliers. The final post (probably) will discuss fees in consumer litigation.
So first, the basic rule: Under California’s Code of Civil Procedure section 1021, if there is no statute or contract to the contrary, the parties to a suit pay their own fees (although the prevailing party is entitled to certain costs, which are usually pretty minimal).
That was the easy part. We start with the hard part after the jump.