Litigation

Component Parts In Product Liability: Now It's 2 - 1 Defense (And A Blow Against Junk Science, Too)

Posted on November 17, 2009
Cal Biz Lit has been following the evolution of the Courts of Appeals' efforts to answer this question: if a manufacturer's product is not itself defective, but becomes defective when used in conjunction with a third-party's defective products (e.g., the...

Tort Plaintiffs Be Warned: Contra Costa and Santa Clara Counties Are Not Friendly Places

Posted on November 13, 2009
To help you get your weekend off to a rousing start, here's a bunch of statistics. Just what you were hoping for, right? About a year ago, Cal Biz Lit reported here on the U.S. Department of Justice's 2005 survey...

Joint & Several Liability For Punitive Damages

Posted on November 11, 2009
One of the more peculiar features of California tort law is the interplay between several liability and joint and several liability. Under California's Proposition 51 (Civil Code section 1431.2), when there is more than one tortfeasor, a defendant's liability for...

Component Parts In Product Liability: The Saga Continues

Posted on October 23, 2009
CBL, and a lot of our clients in product liability matters, have been closely watching the law develop in California on this question: if a manufacturer's product is not itself defective, but becomes defective when used in conjunction with a...

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Court of Appeal Reconsiders Arbitration Decision, Then Rules The Same Way

Posted on October 21, 2009
As Cal Biz Lit noted here on August 31, arbitration awards in California are almost never reversible. But as that post pointed out, in Burlage v. Superior Court Of Ventura County (Spencer) (August 31, 2009) ___ Cal.App.4th ___ (2d Civil...

Some More Musings On MMSEA

Posted on October 06, 2009
Last week, I ran across a pretty good, pretty concise introductory white paper on MMSEA by a Houston company, Medical Research Consultants. If you read the Adams Nye white paper here, and the MRC white paper here, you'll have a...

Some Random Thoughts on Medicare Recovery

Posted on October 05, 2009
Even though it isn't exactly a California subject, we've been keeping an eye on the ramping up by companies and the Centers for Medicare and Medicaid Services (CMS) in the area of MMSEA and Medicare recovery, because of CBL's belief...

Is Manufacturer Liable For Injuries Caused By Somebody Else's Components? Now It's Anybody's Guess

Posted on September 28, 2009
Last week, CBL reported here on O'Neil v. Crane Co. (September 21, 2009) ___Cal.App.4th___ (B208225), and the decision earlier this year in Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564. Both cases addressed this question: if a manufacturer's...

Now, That's A Big Verdict

Posted on September 24, 2009
Per today's Law.com: A Santa Clara, Calif., jury awarded $49 million in damages Monday to a college student who was on his way to a camping trip when two trucks collided and one struck the car he was riding in,...

You Didn't Supply The Dangerous Parts? That's OK -- You're Liable Anyway

Posted on September 22, 2009
Earlier this year, one of our courts of appeal decided Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, a product liability decision generally considered to be quite pro-defense. In Taylor, decedent was exposed to asbestos gaskets and packing...

Is There Any Claim For Spoliation Of Evidence Left? Maybe Just a Little Bit Of One?

Posted on September 20, 2009
As a product liability defense lawyer, I've long been interested in the subject of spoliation of evidence, if only because of the drubbing our Supremes have always given all possible versions of this theory. I like to think of the...

So What Happens When I Walk In The Door?

Posted on September 18, 2009
I've long had a wise-crack I use with some corporate clients (usually long-term ones who I count as friends) to the effect that "When I walk in the door, the good news is over." The point being, of course, that...

Binding Arbitration Award Reversed For Excluding "Material Evidence" Causing Substantial Prejudice

Posted on August 31, 2009
CalBizLit is not personally a huge fan of binding arbitration, although many of our clients are. CBL realizes that arbitration often reduces the likelihood of a "high end," or runaway verdict. This is why defendants tend to favor arbitration and...

$13.8 Million Punitive Award Against Philip Morris

Posted on August 25, 2009
So here's the story: Betty Bullock smoked Benson & Hedges and Marlboros for 45 years, and was diagnosed with lung cancer. She sued Altria / Philip Morris, and in 2002, her case went to trial, resulting in a compensatory award...

More About FaceBook: How To Get Facebook Records In The Litigation Arena

Posted on August 24, 2009
CalBizLit posted last Wednesday here about renowned attorney Mark Lanier's privacy law suit against Facebook, which was met with the derisive hoots it certainly deserved. But there's a more serious issue about Facebook, MySpace and other social network sites that...

Lawsuit Charges FaceBook With Violating California Privacy Law

Posted on August 19, 2009
Mark Lanier, one of the most successful plaintiff's toxic tort and drug lawyers in the country (and a really skilled trial lawyer who is generally despised by American business) is going after Facebook. He's representing five plaintiffs, a diverse group...

Plaintiff Bar's Position On Medicare Set-Asides

Posted on August 13, 2009
Even though it isn't strictly a California issue, we've been following developments in the MMSEA and Medicare Cost Recovery area, with earlier posts, links and white papers here, here, here, here and here. Now the American Association for Justice (fka...

Attorney's Lien vs. Medical Lien: Attorneys' Lien Wins

Posted on August 11, 2009
Most plaintiff personal injury attorneys' have provisions in their fee agreements giving them a lien against client recovery. In a wide variety of circumstances, the medical providers may have a lien against the recovery as well. So what happens when...

CAN-SPAM Act -- Common Sense From The Ninth Circuit

Posted on August 10, 2009
The Ninth Circuit decision in Gordon v. Virtumundo (9th Cir., 2009) ___ F.3d ____ (No. 07-35487) is in a case that actually originated in the District Court for the Western District of Washington, not from California at all. But it...

Ford Explorer Rollover Coupon Settlement -- Coupons Gathering Dust

Posted on August 04, 2009
More than a year ago, CalBizLIt blogged -- no, not just blogged, whined and ranted -- about the coupon settlement in the Ford Explorer Cases, JCCP Nos. 4266 and 4270. Fundamentally, CalBizLit hates coupon settlements. CBL, which generally believes in...

Boomer Verdicts for July

Posted on July 31, 2009
Riverside County: Jury tags K-Mart in an age discrimination case for $916,000 compensatory damages on Tuesday and $25 million in punitives on Wednesday -- more than twice what the plaintiff attorneys asked for. Media coverage here and here. Sears (owner...

A Mediator's Perspective on Medicare Recovery and Settlements

Posted on July 31, 2009
Although this subject doesn't strictly relate to California law (which is generally the field on which CalBizLit plays), CBL has been following developments relating to Medicare's recent, potentially more aggressive approach to recovering payments as well as the reporting requirements...

Prop 65 DART Committee: No Listing of Bisphenol A (At Least For Now)

Posted on July 28, 2009
CalBizLit has just returned from ten days' vacation, and is more than a little bit behind on just about everything, including blog posts. However, we left one shoe waiting to drop just before departing: whether or not Bisphenol A, a...

Court of Appeal Expands Assumption of Risk Defense in Burning Man Case

Posted on July 15, 2009
It seems hard to believe, but until not all that long ago (1975, to be exact), contributory negligence was a complete defense in California tort cases. There were some wildly successful defense lawyers who would try and win just a...

Proposition 65 DART Committee To Consider Bisphenol A

Posted on July 13, 2009
CalBizLit has mentioned here and here that there is currently a significant up-tick in the increase of chemicals listed either as carcinogens or reproductive toxicants under Proposition 65. However, there's a big one coming up at the meeting of the...

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

Posted on July 10, 2009
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...

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

Posted on July 08, 2009
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...

New Article on MMSEA / MSP Compliance

Posted on July 07, 2009
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...

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

Posted on July 06, 2009
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...

Still More Chemicals Up For Proposition 65 Listing

Posted on June 30, 2009
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 . . . ."...

Cal Supremes Put Another Bullet in The Unfair Competition Law

Posted on June 29, 2009
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...

Proposition 65 Now Protects Stoners

Posted on June 21, 2009
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...

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

Posted on June 18, 2009
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....

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

Posted on June 17, 2009
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...

More Misuse of Discrimination Laws, Major League Baseball Division

Posted on June 15, 2009
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...

Removal In Product Liability Cases -- Always A Good Idea?

Posted on June 11, 2009
Like about 42 kajillion other people, I'm a member of Linked-In. I'm also a member of a number of groups, including DRI and several groups dedicated to product liability issues. I'd just written a post on the "common wisdom" when...

Arbitration: Maybe The Common Wisdom Isn't Always So Wise

Posted on June 10, 2009
Here are some elements of the "common wisdom" about arbitration: Arbitration is good for defendants, bad for plaintiffs; This is particularly so in employment cases, where arbitration removes a case's "high-end" (i.e., "runaway") risk; It's better for defendants to have...

More About The Smelly Bentley: Court of Appeal Finds Trial Court Was Required to Impose Terminating Sanction For Discovery Abuses

Posted on June 09, 2009
Earlier today, I posted about the Court of Appeals' decision in Doppes v. Bentley Motors, Inc. (June 8, 2009) ___Cal.App.4th___ (GO39922), There, the Court held that the trial court had jurisdiction to award 7% pre-judgment interest in an action under...

Breaking News: Pre-trial Interest Awardable for Smelly Bentley Automobile

Posted on June 08, 2009
As CalBizLit has discussed previously, consumer warranties in California are governed by the Song-Beverly Consumer Warranty Act, California Civil Code section 1790 and following. The act requires manufacturers, or their California designees, to correct consumer product nonconformities within a reasonable...

Medicare Liens and Personal Injury Settlements -- What Every Insurer and Self-Insured Company Needs To Know

Posted on June 03, 2009
There is a sleeper issue out there involving Medicare liens in personal injury settlements. While it isn't a strictly California issue, it's going to have a big impact on the defense and settlement of some product liability and other personal...

Court of Appeals Affirms Exclusion of Junk Science In Mold Case

Posted on June 01, 2009
CalBizLit has lamented on many occasions the facts that (a) California is not a Daubert jurisdiction, and (b) even our version of the Frye test (known in these parts as the Kelly test) has limited application, being available only to...

Adams Nye MMSEA White Paper Coming Soon

Posted on May 31, 2009
The whole world of settling personal injury cases involving Medicare beneficiary plaintiffs is on the verge of getting turned on its head by the ?Medicare, Medicaid and SCHIP Extension Act of 2007,? known by the less-than mellifluous acronym ?MMSEA.? Stand...

Sierra Club v. Schwarzenegger / California Chamber of Commerce v. Schwarzenegger: Trial Court Orders ACGIH Reproductive Toxins Added to Proposition 65 List

Posted on May 27, 2009
CalBizLit blogged here on May 15 about the consolidated cases involving the Sierra Club and quite a number of other public interest organizations and unions, the California Chamber of Commerce and the State of California. The public interest organizations and...

Modesto Perchloroethylene Verdict: Sometimes You Win, Sometimes You Lose, Sometimes You Win And You Lose

Posted on May 20, 2009
And I guess sometimes it's all a matter of perspective. There's been a five month mega-trial in SF Superior in a groundwater pollution case filed by the City of Modesto (in California's central valley) against Dow Chemical, PPG Industries and...

Cal Supremes Decide In Re Tobacco II Cases -- Major UCL Case

Posted on May 18, 2009
The decision in In Re Tobacco II Cases (May 17, 2009) ___Cal.4th___ (S147345) just hit the internets about ten minutes ago. CalBizLit won't have time for analysis for a few hours, but at first blush, the decision looks like a...

The UCL After In Re Tobacco II Cases -- Are We Right Back Where We Started?

Posted on May 18, 2009
Let's review briefly for those who haven't had the privilege of dancing in the UCL mosh pit: Long ago, there was California's Unfair Competition Law, or "UCL," which allowed any person to bring suit seeking an injunction or other equitable...

You Like The Proposition 65 List Now? Wait 'Til You See It With Still More Chemicals

Posted on May 15, 2009
Early this month, CalBizLit received a number of press releases concerning a Proposition 65 case in Alameda County Superior Court, generally stating as follows (from the NRDC's press release): The Alameda Superior Court has ruled that California?s landmark ?right-to-know? and...

Nine Votes. That's Nine Votes. On Every Question.

Posted on May 12, 2009
Unlike the federal courts, where verdicts must be unanimous, California courts require that in Civil cases, 3/4 of all jurors agree. That's Code of Civil Procedure section 618. In most cases of any consequence, we use "special verdicts" -- a...

This Just In: California Law Doesn't Allow Product Liability Claims By Plaintiffs With No Damages

Posted on May 08, 2009
Company manufactures product. Consumer buys, and uses, and gets intended result. Then, company recalls product from retailers (but not consumers) for failure to comply with standards (in this case, industry and FDA GMPs, or good manufacturing practices)...

Dole Banana Workers' Contempt Hearing Set For This Friday

Posted on May 07, 2009
Like practically every other California law blogger, I've put up a number of posts on the bizarre goings on in the Los Angeles Superior Court DBCP cases brought by supposed Nicaraguan banana plantation workers against Dole, many of which were...

When Can A Disqualified Class Representative Conduct Discovery To Find a Better Plaintiff? Muddy Waters Get Murkier

Posted on May 04, 2009
A recurring scenario in post-Proposition 64 Unfair Competition Law cases has been this: the plaintiff files a UCL case on behalf of all persons allegedly injured by the business practice in question; and it becomes clear that he or she...

"To A Reasonable Medical Certainty" -- Legal Standard, Or Urban Legend?

Posted on May 01, 2009
CalBizLit has been to tons of medical and other expert depositions where someone, usually a co-defendant counsel, has asked a series of questions along the lines of "Now Doctor, can you say to a reasonable medical certainty that . ....

Not Hard To See That Coming (Dole DEHP Litigation Department)

Posted on April 24, 2009
L.A. Superior Court Judge Victoria Chaney dismisses two cases by Nicaraguan banana workers against Dole because of attorney misconduct. Per Bloomberg.com: ?What has occurred here is not just a fraud perpetrated on this court, but a blatant extortion of the...

Cal Supremes Dismiss Review in Buell-Wilson Mega-Dollars Case Against Ford

Posted on April 23, 2009
CalBizLit has followed this long strange trip here, here and, for a long summary of the procedural history, here. Short version: jury awards $122M in compensatories and $246M in punitives. Courts chip away at the verdict as it bounces up...

This Really Is Ridiculous

Posted on April 22, 2009
Although I usually represent defendants in tort, consumer and business litigation, CalBizLit.com is not a tort reform site. CalBizLit believes in the civil courts and the jury system. CalBizLit thinks that while there are occasional aberrant, and even shocking, results...

Dole Fraud Hearing Begins

Posted on April 22, 2009
I've blogged here and here about the Dole DBCP cases in Los Angeles. First, six Nicaraguan filed workers tagged the company for $3.2 million, claiming sterility from exposure to this nematocide while working in the fields. Plaintiffs were awareded punitive...

Cal Supremes Rule Life Insurance Not A Service Under CLRA

Posted on April 20, 2009
The Consumer Legal Remedies Act (Civ. Code section 1750 et seq.) prohibits various unfair and deceptive acts and practices in a "transaction intended to result or which results in the sale or lease of goods or services to any consumer."...

DRI Product Liability Conference: Summing Up

Posted on April 18, 2009
This has been a fun and busy three days. I learned a thing or two, met some great people, and put up a ton of posts. Page views were very high, so I guess somebody was reading. And I appreciate...

Final Presentation From DRI Product Liability Conference: An Explosion Investigation, or Ignorance Meets Ignition

Posted on April 18, 2009
I wasn't able to stick around for all of this, but did hear SEA Inc.'s Mark Mulcahy do a demo of an explosion investigation he conducted involving a fellow who saw fit to weld around a highly volatile separation tank...

Blogging From DRI's Product Liability Conference: Chemical And Toxic Torts

Posted on April 17, 2009
I want to learn more about this, but if it works as advertised, this is something pretty amazing. Bruce Gillis, M.D., MPH, from The Cytokine Institute made a presentation yesterday afternoon. The institute describes its business related to toxic torts...

More From DRI's Product Liability Conference: The Sophisticated User Defense

Posted on April 16, 2009
I surprised several non-Californians attending here last night by saying that I consider the California Supreme Court to be a fairly conservative court. Of course, non-Californians all read about the Court?s same sex marriage decision, and many assumed that the...

DRI Product Liability Blogging Continues: Green Acres Is The Place To Be ? Will ?Green Buildings? Be Fertile Ground For Novel Theories of Liability Against Building Product Manufacturers and Building Developers?

Posted on April 16, 2009
Speakers are Sky Woodward, Dominic DiCicco and Jonathan Rodriguez. We begin with the propositions that: (a) the construction industry has been one of the greenest industries in the world; (b) huge federal, state and local impetus for green construction; (c)...

Blogging From DRI's Product Liability Conference: Preemption

Posted on April 16, 2009
For years, I would hear from associates from UCLA School of Law that Professor Erwin Chemerinsky was the best law professor in the world. He later moved on, first to Duke, then to the position of Dean of the newly...

DRI Product Liability Conference: Clarification on Europe's Influence on California

Posted on April 16, 2009
CalBizLit blogged on one of the early sessions at DRI, quoting Sidley Austin's Chris Bell that "California, in addition to Proposition 65, has been 'bringing the EU to the state. If it can?t be marketed in Europe, it can?t be...

Greenwashing ? What Manufacturers Need to Know About Their Environmental Product Representations

Posted on April 15, 2009
As previously announced, I'm attending DRI's Product Liability Conference in San Diego, and providing summaries as time permits. Not quite live-blogging, but trying to keep it current. There is nothing affiliated with DRI about these posts. Needless to say, my...

The Future is Green ? A Panel Discussion on the Emerging and Regulatory Landscape in the U.S. and the E.U.

Posted on April 15, 2009
This is a panel, moderated by Thomas C. Regan of LeClairRyan in Newark, and with Christopher Bell of Sidley Austin LLP and Rod Freeman, of Lovells LLP in London. It occurred to me that no defense lawyer (including the publisher...

DRI Product Liability Conference: The Grass Is Not Always Greener on the Other Side

Posted on April 15, 2009
Well, between the hotel's wireless connection and Verizon Wireless's problems, the live blogging got off to a slow start today, but we're ready to post on some of the presentations now. Leading off today's conference is this presentation by Best,...

Non-Party Insurer Can't Be Sanctioned For Failure To Negotiate In "Good Faith" At Settlement Conference

Posted on April 13, 2009
Almost every California jury trial is preceded by one or more "mandatory settlement conferences," usually supervised by a judge, and usually a week to a month before the trial. Local rules generally require that the parties, insurers and others with....

AG Posts 2008 Proposition 65 Settlements

Posted on April 10, 2009
Each year since 2000, the California Attorney General has posted a summary of Proposition 65 settlements for the previous year, and the report for 2008 is now up. The trend is up, not for the number of settlements but for...

Live Blogging from DRI's Product Liability Conference

Posted on April 09, 2009
The Defense Research Institute is the international organization of attorneys defending the interests of business and individuals in civil litigation. The DRI Product Liability Committee is one of its largest and most active committees. Next week, from April 15 to...

Court of Appeal Strikes Blow For Social Networking

Posted on April 06, 2009
Unlike the United States Constitution, with its various "penumbras," the California Constitution has an explicit right of privacy (also unlike the US Constitution, the Cal Constitution has been amended more than 435 times, but that is for another discussion)...

More Charlie the Tuna: Blog Commentary On Experts Hired By Judges

Posted on April 01, 2009
I posted here about three weeks ago on the Court of Appeals decision in People ex rel. Edmund G. Brown Jr. v. Tri-Union Seafoods, LLC (March 11, 2009) ___Cal.App.4th___ (A116792), particularly discussing the court's wistful longing for replacement of today's...

California Green Building Blog

Posted on April 01, 2009
Here's something in the blawgosphere that's pretty cool, and like nothing I've seen before. Four lawyers in the "green building practice group" at the Oakland construction law firm of Bell, Rosenberg & Hughes LLP have a very active and really...

A New Twist In The Law Of Good Faith Settlements

Posted on March 30, 2009
If you have a multi-defendant product liability or other high-stakes tort case in California and don't know about the concept of "good faith settlements," you need to. And then you really need to know about this case, Long Beach Memorial...

Fraud Alleged in Cases Against Dole

Posted on March 24, 2009
CalBizLit reported here in 2007 on the first verdict in the DBCP cases brought by Nicaraguan banana workers against Dole Foods, and "California Punitive Damages an Exemplary Blog" (to whom a hat tip goes for this update) later reported on...

Courtroom of the 21st Century

Posted on March 23, 2009
Like many blawgers, I subscribe to feeds from lots of other blawgers, and I make a particular effort to follow posts from lawyers on the plaintiff side of the kinds of kinds of cases I defend. Among those, one of...

Trial By i-Phone, and How To Stop It

Posted on March 17, 2009
This isn't exactly a California story, but it's something I can just about guarantee is going to be an everywhere story. It's really interesting, and has tons of implications. Today's NY Times reports on jurors using their Blackberries, i-Phones, etc...

Market Share Liability and Punitive Damages

Posted on March 16, 2009
In Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, the California Supremes pioneered the "market share" liability theory for plaintiffs alleging injury caused by generic, fungible products whose producers could not be identified. The ruling allowed plaintiffs who claimed injury...

Skadden Arps Asbestos Litigation Report

Posted on March 13, 2009
Skadden has just issued a "Trends" report on asbestos litigation, which reports, not surprisingly, that California is one of the leading jurisdictions for these cases. Skadden notes that nationwide, the number of filings peaked at 80,000 in 2002, and the...

Charlie the Tuna 1, State of California 0

Posted on March 11, 2009
In January, CalBizLit posted about then scheduled argument in People v. Tri-Union Seafoods, LLC, the Proposition 65 mercury in canned tuna case. I mentioned then that my tea-leaf reading indicated, from the Court of Appeal's pre-argument letter to the parties,...

Parent-Subsidiary Relationship Not Enough To Create Personal Jurisdicition -- And Neither Is "Alter-Ego" Relationship

Posted on March 10, 2009
From time to time I have occasion to re-state the purpose and target audience for CalBizLit: while all are welcome, this blawg is aimed at companies within and without California who are only infrequent (and usually involuntary) visitors to the...

Cal Supremes To Decide Impact of Proposition 64 In Class Action UCL Cases

Posted on March 04, 2009

California Judges: Recusal For Campaign Contributions?

Posted on February 24, 2009
As lots of people know, oral argument is set before the US Supremes next week in Caperton, et al. v. A.T. Massey Coal Co., et al. As the SCOTUS docket summary puts it: The question presented is whether Justice Benjamin's...

Another Welding Rod Defense Verdict

Posted on February 12, 2009
Not too long ago, it looked as though welding rod litigation might be the next big thing in mass / toxic tort litigation. There were thousands of claims, many in the federal MDL, in which plaintiffs claimed Parkinsonism and other...

Product Liability Defense White Paper Available

Posted on February 10, 2009
One of CalBizLit's goals this year is to increase its output of white papers. The white papers are generally designed to give good subject matter overviews for corporate clients from out-of-state and others who haven't had the pleasure of spending...

Why We On The Defense Side Like Removal Jurisdiction

Posted on February 06, 2009
The latest California Verdict Search (reports available in paper version only) reports a defense verdict in the United States District Court for the Southern District of California (that's San Diego) in a case called Wawanesa General Insurance Company v...

When Is That Notice of Appeal Due? Hmm, Hard to Say

Posted on February 03, 2009
I understand there is one thing California has in common with many jurisdictions: the rule on when notice may be given of an appeal is strict and pretty inflexible. Under California Rules of Court Rule 8.104(a), the Court of Appeal...

Want A Great Big Verdict Against The State of Califoria? Go to Nevada

Posted on February 02, 2009
I don't know how I missed this. But Lawyers USA reports that the largest verdict in Nevada last year was against . . . the California Franchise Tax Board. Under California law, the state and its agencies are immune from...

Finz Podcast #3

Posted on January 30, 2009
In this week's installment, Professor Finz talks about two product liability cases from November. The first, Conte v. Weyeth, was the subject of a number of blog posts, including my two, here and here. The second is Sarti v. Salt...

This Just In: Supreme Court Rules Statute Means What It Says

Posted on January 29, 2009
On my long-term list of projects is a white paper on the Consumer Legal Remedies Act, Civil Code section 1750 and following. This set of statutes, one of the broadest consumer protection schemes in California, outlaws a host of practices...

Court of Appeal to Hear Proposition 65 Tuna Case

Posted on January 26, 2009
In May, 2006, San Francisco Superior Court Judge Robert Dondero ruled against the Attorney General's office in its Proposition 65 enforcement action against the three primary sellers of canned tuna. The AG had sought Proposition 65 warnings because of the...

Finz Podcast #2

Posted on January 23, 2009
California Law: Product Liability Preemption

Plaintiffs Lose Takada Seatbelt Buckle Case

Posted on January 23, 2009
In the mid-1990's, the National Highway Transportation Agency and many of the automobile manufactures undertook a voluntary recall involving seat belt buckles manufactured by Takata, Japan's largest manufacturer of safety equipment. As I recall, the recall involved the TK-52 buckle,...

Trial Court Reduces Punitive Award Against San Diego Gas & Electric

Posted on January 22, 2009
Last September, CalBizLit blogged about a fairly shocking verdict against San Diego Gas and Electric. In this wrongful death case, the families of four Camp Pendleton marines were awarded $14.2 million in compensatory damages and $40.4 million in punitive damages...

Anatomy of A California Product Defense Case, Part IV

Posted on January 18, 2009
This is the fourth and final post on the nuts and bolts of defending a product liability case in California. Some of the guidelines that have appeared in these posts are not limited to California, and some of them aren?t...

CalBizLit Presents The First Finz PodCast

Posted on January 16, 2009
Here goes nuthin'. When you click this link, it SHOULD take you to the very first CalBizLit Media presentation -- an excerpt from Professor Finz's most recent Civil Procedure, Discovery and Evidence audio presentation. I'm pretty sure the streaming audio...

CalBizLit Media Presents: Professor Finz's Advance Tapes Podcast

Posted on January 12, 2009
Good morning! I'm very excited to announce the first production of CalBizLit Media. Starting later this week, we'll be presenting weekly podcasts by Professor Steven Finz. Professor Finz runs www.advancecollege.org, where he produces monthly audio summaries of the latest developments...

Anatomy of A California Product Defense Case, Part III

Posted on January 10, 2009
Starting last month, I blogged here and here on the nuts and bolts of defending a product liability case in California. Some of the steps I discussed are hardly exclusive to California, but there is a California twist to everything,...

Another Proposition 65 Defense Idea That Doesn't Work

Posted on January 09, 2009
So, this is kind of inside baseball, but it's incredibly important in the world of Proposition 65 defense, and pretty important particularly in the world of phthalates. For those of you who are novices in this strange and wondrous area,...

Runaway Verdicts Just Aren't What They Used To Be

Posted on January 09, 2009
Boomberg reports that "the billion dollar verdict has disappeared from U.S. courtrooms." Biggest reason seems to be State Farm v. Cambpell and its progeny. Says Bloomberg "For the second time in the past three years, juries in 2008 issued no...

Trial Court To Boeing: Take It To The Court of Appeal

Posted on January 08, 2009
CalBizLit blogged late last year on ICO's $630 million thumping of Boeing from a Los Angeles Superior Court jury last Halloween. All this in a contract dispute. Yesterday, Forbes reported that things didn't get any better in the post-trial motions....

Attorney General Brown Touts Consumer Settlement With H & R Block

Posted on January 07, 2009
Edmund Gerald "Jerry" Brown, Jr. attorney general of California, former governor, son of former governor, would-be future governor (unless Senator Feinstein throws her hat in the ring), former three-time candidate for the Democratic presidential nomination, former mayor of CalBizLIt's beleaguered...

Anatomy of A California Product Liability Case, Part II

Posted on January 05, 2009
Back before CalBizLit went on hiatus, I had started what was intended to be a three or four part blawg post outlining the protocol for defending a small to mid-size, non-bet the company, non-class-action, non-mass litigation, non-unique garden variety product...

Happy New Year From CalBizLit

Posted on January 05, 2009
Yes, the holidays and the son's wedding are over, and CalBizLit is back from hiatus. So Happy New Year. As I indicated late last year, there will be a number of changes coming up here. I'm going to try to...

CalBizLit Going on Hiatus

Posted on December 21, 2008
CalBizLit is quite overwhelmed right now with the holidays, a whole ton of work, and our elder son's New Years Eve nuptials (yay!). So we're throwing in the towel and going on hiatus, probably until right after New Years. We've...

We're Number 6! We're Number 6!

Posted on December 17, 2008
In 2007, when The American Tort Reform Association published it's last report on Judicial Hellholes, I sarcastically lamented that California didn't even make the cut (although Los Angeles Superior Court made the watch list.) Well, worry no more. The new...

Los Angeles Jury Awards Piddling $7.5 Million For Punitive Damages In Employment Case Against Kaiser

Posted on December 15, 2008
I've been following with interest the case of Radiologist Dr. Martin Martinucci, who contended that Kaiser Hospital forced him to quit because he complained about the quality of its care. As reported in the San Francisco Chronicle, Martinucci was hired...

Go Ahead, Guess What the Regulation Means . . .

Posted on December 12, 2008
Years ago, during the first George Bush years, I was sitting on an airplane next to a very talkative fellow who turned out to be a consultant on disability rights. I think I had a very vague notion about the...

California: It Really Could Be Worse

Posted on December 09, 2008
In an e-mail this morning, a client referred to California as "the strangest state in the union." I often think that in many ways that's true, and that's one of the themes of this blawg. On the other hand, in...

Anatomy of a California Product Liability Defense Case

Posted on December 08, 2008
As I mentioned in the self-agrandizing "Happy Birthday to Me" post above, one of my goals for the future of CalBizLit is to increase the number of in-depth, substantive posts. These are posts that are less topical and more intended...

Happy Birthday to Me, Happy Birthday to Me, Happy Birthday CalBizLit. . . .

Posted on December 08, 2008
Well my goodness, it was two years ago today that I launched CalBizLit, passwording the blog for a month or so to see if I was really going to stick with this, then releasing it to the world to see...

Summary Judgment Motions: Strict Enforcement of Time Limits

Posted on December 05, 2008
I'm on record any number of places over the years as having said that California law and California culture both effectively make summary judgment a disfavored motion, and a new case provides further evidence. Code of Civil Procedure section 437c,...

Will California Finally Have An E-Discovery Law?

Posted on December 04, 2008
In a post almost two years ago --during the very first month of CalBizLit -- I posted here on the absence of any real e-discovery law in California. So far, that hasn't changed. Earlier this year, both houses of the...

California Mediator's Blog

Posted on December 03, 2008
Welcome to the blawgosphere to Brad Bostick. Brad is an excellent California mediator, now blogging at Time To Mediate. I've added him to CalBizLit's list of approved blogs. And there's a good post there now on mediation tactics -- specifically,...

And What Documents Did You Review? And Where Are They?

Posted on December 01, 2008
While the rest of us, including CalBizLit, were suffering post-turkey dinner tryptophan fatigue (or were flat-out worn out for other reasons not related to the bird), Dan Hull was blogging away at What About Clients, where he reminded readers about...

CalBizLit On The Analyst's Couch

Posted on November 26, 2008
Thanks to LegalBlogWatch, I now know about Typealizer, which uses a "Myers Briggs" analysis to characterize blogs. I suspect that the results of these will be popping up all over the blogosphere in the next couple of days, so below...

Misuse of Discrimination Laws: Lawyers With Too Much Time on Their Hands Division

Posted on November 26, 2008
CalBizLit almost never blogs about unpublished decisions, because under California Rules of Court, rule 8.1115(a), they aren't citeable or otherwise authority for anything. And CalBizLit almost never blogs about lawyers and parties who stretch the limits of discrimination and other...

Proposition 65: Finality of Consent Judgments and Protection From Multiple Bounty-Hunters

Posted on November 24, 2008
Regular readers (all five of you) and California practitioners by now know the Proposition 65 enforcement drill: a private-party enforcer, or "bounty hunter," uses a lead-seeking gun to find lead-containing products without warnings on a retail shelf, or buys products...

Warning: Off Topic Sports Post, Living In The Past Division

Posted on November 21, 2008
Tomorrow is the Cal Stanford Big Game. I've lost track of how many I've been to, but I've been going since the 1960's. Go Bears!Here's the final seconds of the greatest one of all, 1982. Unlike many who say they...

Cal Supreme Court: Pre-Litigation Settlement Efforts Not a Prerequisite to Obtaining Private Attorney General Fees

Posted on November 20, 2008
California's private attorney general fees statute, Code of Civil Procedure section 1021.5, allows fees to lawyers bringing suit in the public interest, and sets forth the criteria for when fees will be allowed. CalBizLit did a lengthy post on this...

Too Many Lawyers -- California Business Division

Posted on November 20, 2008
There are lots of places we can go to read about the misuse and abuse of the civil justice system, usually by attorneys representing plaintiffs in personal injury, pharma, consumer or other litigation (Overlawyered.com and its sister site PointofLaw.com come...

The California Environmental Contaminant Biomonitoring Program and Medical Monitoring

Posted on November 18, 2008
CalBizLit seems to be citing Beck and Hermann's Drug and Device Law Blawg an awful lot lately. Not that they need it -- I think they have approximately 100 bazillion page views to date, compared with CalBizLit's 57. But here...

Clayworth v. Pfizer: Supreme Court Extends Time For Granting Review

Posted on November 17, 2008
In August, I blogged on Clayworth v. Pfizer, Inc. (July 25, 2008) ___ Cal.App.4th )___ (A116798), an antitrust case where a California Court of Appeal for the first time considered the "pass on defense" and held that it applied to...

More on Conte v. Wyeth

Posted on November 14, 2008
On Monday, CalBizLit posted here about Conte v. Weyeth, where the Court of Appeal last week held that Wyeth could be held liable for alleged misrepresentations in its labeling even when the plaintiff took only the generic version of the...

Trial of Legal and Equitable Issues in California Courts

Posted on November 13, 2008
You all remember courts of chancery, right? They were the ones where the chancellor tried equitable issues, without a jury. And the artifact of those courts, of course, is the distinction between ?legal issues? and ?equitable issues.? In California, and,...

Lucky Thing We Have a Court of Appeal

Posted on November 13, 2008
For resolving critical, weighty disputes like this one.

California's Remedy For Frivolous LItigation

Posted on November 12, 2008
The original point of this blawg, other than to give me a place to post off-topic Youtube videos of long-gone jazz, blues and r & b musicians, is to provide useful information about California litigation issues for businesses much like...

Off-Topic Post -- Veterans Day

Posted on November 11, 2008
My father, John Nye, his brother, Don Nye, and my father-in-law,Sam Elkind, all helped save our world in the early nineteen-forties, and are now all gone. My dad's brother, Frank Nye, died on the Arizona sixty-seven years ago next month.I...

Court of Appeal Stands Product Liability Law On Head?

Posted on November 10, 2008
CalBizLit left early on Friday to go to Los Angeles for the Cal vs. USC debacle, and until today, missed the Court of Appeal's decision in Conte v. Wyeth (November 7, 2008) ___Cal.App.4th___. Here's the story: Wyeth develops and brings...

Two Hundred Million Here, Three Hundred Million There -- Soon You're Talking About Real Money

Posted on November 03, 2008
A Los Angeles jury kicked off its Halloween weekend by clobbering Boeing with a $236.86 million punitive damage award in favor of ICO Global Communications. This was on top of the $370.6 million in compensatory damages awarded last week. ICO's...

Why I Want to Practice Plaintiff Animal Attack Law -- New Case Stats From Our Government

Posted on October 30, 2008
The U.S. Justice Department has a "Bureau of Justice Statistics" that issues reports on civil bench and jury trials in state courts every four years. The 2005 survey is just out, and it is full of all kinds of interesting...

Blawg Review #183 -- A Great Resource for California Blawgs

Posted on October 27, 2008
Kimberly A. Kralowec's always excellent UCL Practitioner hosts Blawg Review #183 this week, and provides a wealth of information on California-centric law blogging. She not only provides links to several comprehensive lists of bay area and California blawgers, but surveys...

New Automotive Safety Preemption Case

Posted on October 23, 2008
As many readers of CalBizLit know, federal preemption is a recurringissue in product liability cases. The law of preemption California just took a step in the direction of automobile manufacturers. The requirements for passenger vehicle restraint systems in the United...

A Lesson on Default Judgments

Posted on October 17, 2008
We have this happen at least a couple of times a year: an out-of-state company calls us, tells us they were sued, they turned the summons and complaint over to (a) an insurer; or (b) their local counsel; or (c)...

New Auto Dealership Case: New Cars, Used Cars and the Consumer Legal Remedies Act

Posted on September 25, 2008
This is a development of potential significance to our automobile dealership clients. The most valuable California statute for the plaintiff in consumer litigation is often the Consumer Legal Remedies Act (CLRA; Civ.Code section 1750 et seq.) The CLRA lists 23...

Court of Appeal Endorses Early Use of Code of Civil Procedure Section 998 Offers of Judgment

Posted on September 09, 2008
I?ve blogged often on California?s Code of Civil Procedure Section 998 ? recent previous posts are here and here. Briefly, Section 998 is our version of FRCP 68, and can be effective for obtaining pre-judgment interest, and for shifting both...

Stunner Verdict Against Utility for Failing to LIght Tower

Posted on September 08, 2008
When I was a young associate in an insurance defense firm about 300 years ago, our senior partner made one of the other associates try a plaintiff death case. I say "made him" try it, because the theory was that...

Mattel v. Bratz Verdict In

Posted on August 26, 2008
As discussed here and lots of other places in lots of blawgs, Mattel's Barbie has been duking it out with MGA Entertainment's Bratz in Federal Court in Riverside since last May. The jury previously found copyright infringement and has been...

Citation Links in Cal Biz Lit

Posted on August 26, 2008
When Cal Biz Lit posts on California law, new cases, statutes, etc., I try to include relevant links so readers can easily see them for themselves. The links to California cases come predominantly from three free sites, the links to...

Cal Biz Lit: The Riverside Report

Posted on August 22, 2008
Ever since California's courts adopted their "fast track" programs some twenty years ago, state court cases here have generally moved along at a pretty good clip. Even somewhat complex cases can be set for trial, and go to trial, within...

California Discovery Motion Department -- Finger-wagging at judges division

Posted on August 20, 2008
In yesterday's post, I reported on Felton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (August 19, 2008) ___ Cal.App.4th ___, where the Court of Appeal strictly applied the time limits in California's Discovery Act, reversing a trial court judge for...

California Discovery Motions -- This Just In: Judges and Attorneys Have to Follow the Law

Posted on August 19, 2008
As I've shown in my White Paper on discovery, California has a remarkably lengthy and convoluted set of discovery procedures, which differ substantially from the Federal Rules. Our discovery act addresses in a ponderous set of about 192 statutory sections...

The Pass-On Defense: My Bad

Posted on August 14, 2008
In a post day before yesterday, I noted that the Court of Appeal in Clayworth v. Pfizer, Inc. (July 25, 2008) ___ Cal.App.4th ___ (A116798) had held that the "pass-on defense" barred the plaintiffs' Cartwright Act suit because, while the...

Court of Appeal Rules Pass-On Defense Applies in Cartwright Act Anti-Trust Suits

Posted on August 12, 2008
California has long had its own anti-trust law, the Cartwright Act (Bus. & Prof. Code §§16700 and following), and the California anti-trust jurisprudence is similar, but by no means identical to, that deriving from the Federal Sherman Anti-Trust Act (15...

Personal Injury Plaintiff Recovers Full Amount Billed for Medical Services -- Not Just Amounts Paid By Insurance

Posted on July 22, 2008
Anyone who has had major medical experience in the past thirty years or so knows there is a big difference between what gets billed for medical services and what providers accept from insurers as payment in full. Health insurers typically...

Air Travel Just Isn't As Glamorous As It Was

Posted on July 18, 2008
Pity the poor flight attendant. The French diplomat's wife kicks her in the back. The pilot raises his fist at her and throws her off the plane. The airline suspends her, sends her to a shrink and won't give her...

Mattell Wins Verdict For Barbie Against Bratz

Posted on July 17, 2008
One of CalBizLit's missions is reporting verdicts of interest. The Wall Street Journal and its LawBlog are both reporting that the Federal Court jury hearing the Mattell v. MGA Entertainment case in Riverside has just come back with a verdict...

Clouded Crystal Ball Department

Posted on July 17, 2008
Yesterday, I spoke on the telephone with a lawyer I know in Indiana. He went to law school about the same time I did (back when the earth was cooling) and he was commenting that when he was in law...

We're Baaaaack . . . . . . . . .

Posted on July 15, 2008
Well, a bit of hiatus, and bit of overwork, and a bit of vacation, and the next thing you know, it's been twenty-five days since the last post (and that one was one of those annoying, off-topic music video posts)....

Warning -- Off-Topic Musical Post

Posted on June 20, 2008
There's lots to post about today. But it's 80 degrees in San Francisco and summer (which usually arrives in the bay area in late September) is here . So to heck with it. Showing my age, here's the late Mike...

Attorneys' Fees and Code of Civil Procedure section 998

Posted on June 17, 2008
Marc Alexander and Mike Hensley have a good post in yesterday's California Attorney's Fees on our Code of Civil Procedure section 998, the California equivalent of FRCP 68. The statute, and the cases interpreting it, make for a fairly complex...

Wha' Happened?

Posted on June 16, 2008
Week before last, the Recorder (San Francisco's ALM affiliate) had a small article buried in the back about a Seattle firm suing the owner of Applebee's for misstating the nutritional content of the food on its Weight Watcher's menu. So...

Attorneys' Fees for Wrongful Denial of Requests for Admissions

Posted on June 06, 2008
I don't usually post about unpublished Court of Appeal decisions; in fact, I don't usually read them. Under California Rules of Court, Rule 8.1115(a), they aren't citeable and aren't authority for anything. But Wednesday's unpublished decision in Manhattan Banker Corporation...

Sanctions for Failure to Attend Court-Ordered Mediation

Posted on June 03, 2008
The original mission of this blawg was to provide guidance to out-of-state businesses and others whose involvement in California litigation was infrequent, but potentially painful. So a decision last Friday from the Court of Appeal in Sacramento is useful for...

Liquidated Damages and Penalties in California

Posted on May 29, 2008
Generally speaking, the enforceability of a liquidated damages provision in a contract is governed by Civil Code section 1671, with the relevant part reading: (b) Except as provided in subdivision (c), a provision in a contract liquidating the damages for...

Great Big Huge Proposition 65 Decision? -- Well, Sort Of

Posted on May 22, 2008
This morning's San Francisco Chronicle reports on a $10 million Proposition 65 judgment against T-A Creations for selling 100,000 lead-tainted children's lunch boxes to the California Department of Public Health Services (maybe if you're going to sell toxic lunch-boxes, the...

Battle of the Free Newspaper Titans -- Multi-Million Dollar Judgment Under California's Unfair Trade Practices Act

Posted on May 21, 2008
California's Unfair Trade Practices Act, Business & Professions Code sections 17000 and following, makes it unlawful to engage in the "production, manufacture, distribution or sale" (section 17040) of an article or product with the intent to destroy competition...

Off-Topic Heat Wave Musical Post

Posted on May 16, 2008
It's 86 degrees at 3:30 p.m. in San Francisco. Martha Reeves and the Vandellas time.

Another California Runaway Verdict

Posted on May 16, 2008
That is, the jury ran away from the plaintiff as fast as they could. Dish Network sues News Corp.'s NDS Unit for over a billion bucks, contending an NDS employee hacked into its network, stole code, posted the code on...

Attorneys' Fee Awards in California III: More Attorney Fee Shifting Statutes

Posted on May 14, 2008
In an earlier post, I wrote about contractual fees to the prevailing party, how a one-sided fee provision in a contract becomes bilateral by operation of law, and how a narrow fee provision can relate to all disputes between the...

Ford's Petition for Review in Buell-Wilson Punitive Damages Case

Posted on May 08, 2008
I blogged in March, here, on the Court of Appeals' decision in Buell-Wilson v. Ford (2008) ___ Cal.App.4th ___ (Fourth Dist., D045154). There, after the Cal Supremes remanded so the court could take another look at the $55 million punitive...

Contractual Attorney Fee Awards When There's No Jurisdiction over the Defendant

Posted on May 07, 2008
I'm still trying to finish my three-part series on attorneys' fees. Soon, I promise. But I keep seeing new cases. Since part of the audience for this blawg is non-California companies who find themselves ensnared in litigation here, this story...

Happy 109th Birthday Duke Ellington

Posted on April 29, 2008
Way, Way, Way Off Topic Musical Post. Sometimes people just have to indulge me. Here's he is on piano for 6 hands, with Willie the Lion Smith and Billy Taylor from the David Frost Show in 1969:

When Can Attorneys' Fees Be Awarded in a FEHA Case?

Posted on April 28, 2008
I am two thirds of the way through a three part post on attorneys? fees, and have gotten a little bogged down (the pesky details of my law practice have gotten in the way of long posts). At any rate,...

San Diego Jury Awards Punitive Damages to Marine Captain Against Military Insurer

Posted on April 16, 2008
The Los Angeles Times reports that last week a San Diego jury awarded $3.6 million to a Marine captain serving in Iraq against his homeowners' insurer, USAA. The jury found that the company, which specializes in insuring military personnel, cheated...

California Blog of Appeal

Posted on April 15, 2008
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...

Faster Than A Plodding Lawsuit; More Powerful Than Summary Judgment

Posted on April 15, 2008
The Weintraub Firm's engaging, if often over my head, IP Law blog reports 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...

California Supreme Court Adopts Sophisticated User Defense

Posted on April 03, 2008
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...

Why Non-Californians Should Always Read This Blog

Posted on April 02, 2008
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...

Oh For The Bad Old (Pre-Prop 64) Days

Posted on March 28, 2008
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...

Attorneys? Fees and Fee Awards In California ? Part II

Posted on March 27, 2008
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...

Just in Time for March Madness -- NCAA Anti-Trust Settlement

Posted on March 20, 2008
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...

Attorneys? Fees and Fee Awards Under California Law, Part I

Posted on March 19, 2008
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...

Cal Court of Appeal to US Supremes: Here?s a Thumb In Your Eye

Posted on March 12, 2008
Today we discuss punitive damages. But this post is not about your routine, garden variety, might I say even conservative $1 million or $5 million punitive damages award. Rather, this is about mega-punitive damages, as in Buell-Wilson v. Ford Motor...

For NPR and David Sedaris Fans

Posted on March 07, 2008
Utterly, completely and hopelessly off topic post: That's Myles Nye, close relative to CalBizLit, as David Sedaris. 7000+ hits and still counting at Defamer.com. Thanks to CalBizLit readers for indulging a proud dad. Next week: back to the practice of...

Further Commentary on Unocal Punitive Damages Decision

Posted on March 06, 2008
Yesterday CalBizLit posted on Holdgrafer v. Unocal, wherein the Court of Appeal for the second district applied State Farm v. Campbell in reversing a punitive damages award. The trial court had allowed evidence of other bad acts, which the Court...

Punitive Damage Award Reversed Based on Erroneous Admission of Other Dissimilar Instances

Posted on March 05, 2008
Interesting application of State Farm Mutual Automobile Insurance Company v. Campbell (2003) 538 U.S. 408 in the California context in yesterday's decision in Holdgrafer v. Unocal Corp. (2008) ___ Cal.App. 4th ___ (2d Civil No. B175953). Unocal (now owned by...

Wrongful Termination Case Based on Labor Code Section 232.5 is Preempted by NLRA

Posted on February 18, 2008
California has two statutes, Labor Code sections 232 and 232.5, that protect the rights of employees to disclose information about their compensation or working conditions. The first, Labor Code section 232, was enacted in 1984, provides: No employer may do...

Reid v. Google: Evidentiary Objections in Summary Judgment Motions

Posted on February 01, 2008
In practice areas where practitioners make heavy use of motions for summary judgment, there's been an ongoing controversy over how the courts treat evidentiary objections. Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 held that a trial court...

How Not to Give References

Posted on January 29, 2008
Most employer's attorneys advise their clients that when an inquiry is made about a former employee, the employer should limit the response to confirming the former employee's dates of employment and job title. There are two reasons for this: avoiding...

Not Such A Good Way to Defend A Prop 65 Case

Posted on January 25, 2008
Under Proposition 65 (Health and Safety Code Section 25249.5 and following), a private party enforcer (or bounty hunter) can sue any employer of ten or more persons who has exposed persons to carcinogens or reproductive toxicants on the governor?s lists...

Attorneys' Fees in Motions to Compel Arbitration

Posted on January 23, 2008
California's appellate courts have issued many decisions in the past several years on binding arbitration provisions in consumer and employment contexts, which are typically non-negotiated contracts of adhesion. But here's a commercial arbitration case (involving negotiated contracts and equal and...

How Not to Write An Employee Handbook

Posted on January 21, 2008
The Peters Law Group in Southern California is a small firm representing employees in discrimination, harassment and other litigation. They also publish the often excellent California Employee Rights Blog. Over the weekend, they published an amazing post on Tribune Co...

California -- Not a Judicial Hell Hole?

Posted on December 20, 2007
In April, the Chamber of Commerce published its list of judicial hellholes, giving California sixth place for the worst in the country, as I reported here. At year end, here comes the judicial hellhole listing from the American Tort Reform...

Mandatory Arbitration in Employment Contracts

Posted on December 18, 2007
Today's guest blawger is Michael Sachs, who practices employment law with our firm. Today's Wall Street Journal discusses the increasing use of arbitration provisions in employment agreements. The WSJ estimates as many as 20% of all businesses require employees to...

Pro-Defense Lockheed Gatekeeper Decision -- Gone for Good

Posted on December 14, 2007
I blogged a couple of times (here and here) and in a white paper about the Court of Appeals' decision in Lockheed Litigation Cases, where, despite the fact that Daubert has never been adopted in this state, the Court suggested...

Coupon Settlement in Ford Explorer Class Action

Posted on December 04, 2007
For months, I wanted to write a post on the Ford Explorer UCL litigation pending in Sacramento Superior Court, (Ford Explorer Cases, JCCP Nos. 4266 and 4270), but I never got around to it. The cases -- discussed at some...

Breaking News: Big Win for Automobile Dealers in Lease Documents Cases

Posted on November 29, 2007
For at least seven years, plaintiffs' counsel have tenaciously prosecuted In re Vehicle Lease Documents Cases (Trygar) in Los Angeles Superior Court. This Unfair Competition Law case was brought by Ed Masry (of Erin Brockovich fame) on behalf of Louis...

Defense Verdict in JDS Uniphase Trial

Posted on November 27, 2007
There is probably no jury verdict more likely to strike fear in the hearts of board members and officers everywhere than a securities trial verdict. The amounts at stake are nearly always mind-boggling, the cases involve concepts not exactly familiar...

Why Corporate Defendants Like the Federal Courts

Posted on November 21, 2007
I blogged not long ago (and there's also a discussion in my product liability white paper) on Lockheed Litigation Cases, a Court of Appeal decision upholding a California trial judge for performing something that looked a lot like Daubert gate-keeping...

Staples Wage and Hour Settlement

Posted on November 20, 2007
The focus of this blog is not employment law, and there are other blogs (Storm on the employer side, Wage Law on the employee side) whose authors do an excellent job in this field. But anybody who conducts any kind...

Another Boomer Verdict From the Electronics World

Posted on November 18, 2007
Verdict Search California (subs. req.) reports on the September, 2007 verdict for UniRamTechnology, Inc. against Taiwan Semiconductor Manufacturing Corporation (TSMC). UniRam shared some proprietary semiconductor design information with TSMC under an NDA, while they explored having TSMC manufacture the semiconductors...

The Real Reasons for Litigation Delay

Posted on November 15, 2007
Say what you will about California. Sometimes we have a sense of humor, and sometimes we have manners. Sometimes we have both. Tentative ruling from Judge Barbara Zuniga from Contra Costa Superior Court (one of the nicer people on the...