February 2009 Archives

As we plough into the fourth decade of authorized lawyer advertising (read "solicitation") far fewer lawyers are around who remember the strict and honorable rules that made ambulance chasing a disreputable endeavor.

The U.S. Supreme Court justices who in 1977 launched the solicitation era in Bates v. Arizona admitted they didn't know for sure what it would lead to. Were they ever right on that score!

See staff writer Petra Pasternak's February 26 article in The Recorder legal newspaper on "pay-per-click" Internet advertising (subscription required but a free trial is available) for a look at a world that Justice Warren Burger and friends could not have even imagined.

We learn there that plaintiffs' lawyers at "The Veen Firm" felt driven to it ... "a philosophical jump for us. We thought of ourselves as one of the more prominent firms in the city, not a 1-800 ambulance firm. ... But we need to make sure that our names are out there."

The Recorder tells us that "Oakland attorney Steven Kazan, who focuses on asbestos cases, says that competition for work is tougher than it's ever been. 'It's no longer a local practice,' he said. 'Lawyers from all over the country now compete for the guy who gets sick in Oakland.' His 21-lawyer firm, Kazan, McClain, invests in search engine optimization to help its five Web sites stay relevant. Non-lawyer Carolyn Chitty handles online marketing and advertising at the firm."

Lost over the years are the issues driving the Bates decision. As Chief Justice Burger noted in his concurrence/dissent: "Pressures toward some relaxation of the proscription against general advertising have gained force in recent years with the increased recognition of the difficulty that low- and middle-income citizens experience in finding counsel willing to serve at reasonable prices."

Most of the Bates court discussion focused on the price list advertised by the pair of Phoenix legal aid lawyers looking to bring in lower income people for a little legal help. The advertisement was simply: " Do you need a lawyer?... Legal services at very reasonable fees ... Divorce or legal separation -- uncontested (both spouses sign papers) ... $175.00 plus $20.00 court filing fee" and so on.

Much of the justification for Bates was to make legal services more accessible and affordable.

Justice Burger was not sold on this: "Although the exact effect of those changes cannot now be known, I fear that they will be injurious to those whom the ban on legal advertising was designed to protect -- the members of the general public in need of legal services. I am apprehensive, despite the Court's expressed intent to proceed cautiously, that today's holding will be viewed by tens of thousands of lawyers as an invitation -- by the public-spirited and the selfish lawyers alike -- to engage in competitive advertising on an escalating basis. Some lawyers may gain temporary advantages; others will suffer from the economic power of stronger lawyers, or by the subtle deceit of less scrupulous lawyers."

Sixteen years later, in a speech, Justice Burger provided an updated opinion on Bates, saying that lawyers taking advantage of it have taken the legal profession's standing to "its lowest ebb in the history of our country."

And what about advertising as promoting cost-cutting competition and increasing access to the legal system? Recall that a California Judicial Council survey in 2005 found that while the public's attitude toward the courts has been becoming more positive, the cost of an attorney was the most commonly stated barrier to access to the courts -- no matter what the respondent's income level.

Governor Arnold Schwarzenegger has just released "diversity" data on his judicial appointments, and CJAC believes judge trackers and others might be interested in just what these judges were doing before they were appointed to Superior Court positions around the state.

The CJAC data (largely from Governor's Office news releases) covers 282 Superior Court appointments from the Governor's taking office through January 30 of this year.

Our first pie chart below shows, for example, that the largest percentage of trial court appointments (30%) came from district attorney's offices. Private practice follow at 29% and court commissioner at 21%.

Our second chart looks more closely at the private practice source. It shows that law firms primarily involved in defense in civil cases was the source of 26% of all appointees who had been in private practice. The private practice pie breaks up further with pre appointment practices including general law (19%), business law (15%), personal injury and workers compensation law (8%), criminal defense (7%).

By CJAC's count, the Governor has appointed 20 Appellate Justices -- most from Superior Court seats. Eleven had been appointed by Governor Pete Wilson, three by Governor George Deukmejian, one by Governor Jerry Brown, and five by Schwarzenegger himself.

Schwarzenegger has also appointed one member of the California Supreme Court -- Justice Carol Corrigan.

Governor Schwarzenegger Judicial Appointments.pdf

Superior Court Appointments.pdf

Superior Court Judges Appointed from Private Practice.pdf

Senator Tom Harman authored this guest blog post for CJAC.

Today I introduced Senate Bill 393, a bill that will make the appeals process more fair and will send a signal that California welcomes business investment in the state.

In California, plaintiffs are entitled not only to damages awarded in a case but to interest on the damages awarded. If a California defendant pursues a case to appeal, interest may accrue on the judgment during the entire trial and appeals process -- a process which can take an additional two or three years and may result in a huge payment in interest alone.

In today's shaky economy, most key interest rates fluctuate between 4% and 7%. But since 1982, the interest rate in California for prejudgment and postjudgment interest has been fixed at the unreasonable rate of 10% per year.

California's current judicial interest rate results in huge windfalls to plaintiffs and may discourage some defendants from exercising their fundamental right to appeal.

This bill will set the judicial interest rate at the prime rate plus 2%. Doing so will bring California's judicial interest rate up to date and ensure that defendants are paying interest at a rate comparable to market rates.

Senator Tom Harman serves the 35th Senate District, which covers most of Orange County's coastline and includes the cities of Seal Beach, Huntington Beach, Fountain Valley, Costa Mesa, Newport Beach, Irvine, Cypress, La Palma, Los Alamitos, Laguna Beach, Dana Point, portions of Buena Park, Garden Grove, Santa Ana, and Westminster and the unincorporated areas of Rossmoor and Sunset Beach.

Assemblyman Roger Niello authored this guest blog post for CJAC.

Today I introduced a bill that should assist in reducing litigation because it will encourage and facilitate settlements of insurance claims.

Assembly Bill 470 allows an insurance company to give a copy of an accident report to an insured person's lawyer. Current law in the Insurance Code allows the insurance company to obtain and share a copy of the report with the insured person -- but not the insured's lawyer. Existing law in other California codes does allow the insured's lawyer to obtain a copy of the police or accident report.

By allowing the insurance company to furnish a copy of the police or accident report directly, settlements of insurance claims can proceed more quickly, and there is less likely to be the kind of delay and confusion that will lead to a lawsuit.

Assemblyman Roger Niello represents the 5th Assembly District, including the Sacramento County communities of Arden Arcade, Carmichael, the City of Citrus Heights, Fair Oaks, the City of Folsom, North Highlands, McClellan Park, Orangevale, Natomas, Sacramento and the Placer County community of Granite Bay.

Assembly Bill 329 authored by Mike Feuer (D-Los Angeles) would create a duty, and therefore liability, from the seller of a reverse mortgage to an elder buyer of a reverse mortgage. The bill defines "elders" as people over 65. It delineates very specific and strong fiduciary duties regarding reverse mortgages, and allows a lawsuit for a breach of any of the duties, along with the award of attorney's fees and costs to a prevailing plaintiff.

The Civil Justice Association of California is reviewing this proposal.

Assembly Bill 335 authored by Assemblyman Felipe Fuentes (D-Los Angeles), would invalidate any mandatory choice of law clause or forum selection clause in an employment contract in California. The bill is a repeat of AB 1043 (Swanson), which CJAC opposed and the Governor vetoed. The bill will unnecessarily prevent California's employers from using choice of law and choice of venue clauses in their standardized employment contracts. This means that an employment contract could not specify the law of another state as controlling, and could not choose another state as the appropriate place to litigate a dispute.

The Civil Justice Association of California supports parties' right to freely contract to solve disputes. Contractual relationships tend to differ from situation to situation, and certain situations may be best served by a choice of law other than California's or a location other than California.

Assembly Bill 1043 was opposed by CJAC because California law already protects employees from unfair contracts, and there are situations where a choice of law provision in a contract that selects another state's law may be appropriate.

The Civil Justice Association of California on Thursday issued a press release commending Speaker Karen Bass for forming a task force to find strategies to spur the state's economic recovery.

In the release, CJAC President John H. Sullivan said: "With a budget solution agreed upon, there is no time to lose in enacting specific changes sending a genuine message nationally that California is going to be a better place to do business and hire workers."

Sullivan has also laid out several proposals in a letter to Governor Schwarzenegger and legislative leaders that would signal a strong step toward curing California's anti-business reputation in the legal arena. Economic Recovery Letter.pdf

The CJAC release notes a Wall Street Journal national report of several states launching campaigns to lure jobs and workers from California. A separate Journal editorial asserts that California has become markedly less economically competitive.

Assemblyman Van Tran authored this guest blog post for CJAC.

Today, I introduced a bill that will bring more fairness and balance to California's class action law and also sends a message that California is committed to retaining and keeping businesses in the state. In these tough economic times, it is part of my package and plan to help California turn its economy around.

Assembly Bill 298 allows defendants the same right that plaintiffs already have -- the ability to appeal a judge's decision to "certify" a class of plaintiffs and allow a lawsuit to proceed.

Current law only allows the plaintiff to appeal a judge's denial of class certification. This current situation is unfair to defendants, whose only recourse is to appeal the judge's ruling after the lawsuit is complete and the defendant has lost. Federal law and many states allow defendants -- usually businesses or governments -- this important right.

The current process forces defendants to settle a lawsuit, rather than proceed to trial. But with this change, we will send out a signal to companies looking to invest in California that the state is an attractive place to do business.

Assemblyman Van Tran represents California's 68th Assembly District in Orange County, including the cities of Anaheim, Costa Mesa, Fountain Valley, Garden Grove, Newport Beach, Stanton, and Westminster. He is vice-chair of the Assembly Judiciary Committee.

The federal Class Action Fairness Act is achieving its goal of shifting the typical multi-state class action from state court to federal court, but a new study has found that there has been a surge in single-state class actions designed to avoid the federal law's removal provisions.

The statistics analyzed in law firm Gibson Dunn & Crutcher's "Year-End Update On Class Actions: Explosive Growth in Class Actions Continues Despite Mounting Obstacles to Certification" show an increase in just state class actions, according to a National Law Journal article.

In Los Angeles -- an area the firm named as a "forum favored by the plaintiffs' bar" -- class-action filings have increased by 55% in the past three years, from 516 filings in 2005 to 801 filings in 2008.

Los Angeles has a designated panel of complex case judges who are very experienced in handling class action and other complex litigation, and this program has proved extremely popular among plaintiffs and defendants, according to the firm. Notably, removals occurred in only 12% of the class cases filed in Los Angeles County Superior Court in December 2008.

The firm also has seen a surge in three types of class actions: labor and employment, consumer fraud and products liability.

The single-state actions also are usually staggered, said Andrew Tulumello, vice-chairman of the class-action group in the firm's Washington office. He told the Journal that the California action may be filed one month, and five months later, an Illinois action will be filed.

"It's sort of a back door effort to involve multiple states and to avoid a removal to federal court," he said.

Plaintiffs' theories also are shifting, Tulumello told the paper. As federal courts have made it more difficult to get a class certified, plaintiffs are relying more heavily on economic torts, he said, where the theory is there was some deception in the way a product was advertised or marketed.

"They think those types of cases are easier to certify than where the claim is actual injury," he said. "We call these economic torts or no-injury torts."

State legislators quickly introduced three bills after the California Supreme Court ruled in December that non-medical Good Samaritans are not protected from lawsuits if they inadvertently or negligently cause harm for rendering non-medical care at the scene of an emergency.

One of those bills -- Assembly Bill 83 -- has been amended from an intent bill to a bill with specific language. The bill states that non-medical good Samaritans who help out in an emergency are exempt from civil liability unless their actions constitute gross negligence or willful or wanton misconduct.

This bill would, in effect, change the law after the Court's decision in Van Horn v. Watson. See our earlier blog post for more details.

AB 83 is authored by Mike Feuer (D-Los Angeles), the new chair of the Assembly Judiciary Committee. Its principal coauthor is Senator John Benoit (R-Palm Desert), who previously introduced SB 39, on the same subject. Also introduced was AB 90, authored by Anthony Adams (R-Hesperia) on the same subject.

Ohio Attorney General Richard Cordray has dropped a 2007 suit filed by his predecessor claiming 10 former lead-paint makers' products created public-health hazards. The suit sought to force Sherwin-Williams Co. and nine other former lead-paint makers to pay the cost of cleaning up homes and buildings contaminated by their products, according to Bloomberg news.

That leaves one California case, County of Santa Clara v. Superior Court, as the only pending lead paint public nuisance lawsuit, those following the issue believe. The appeal does not involve public nuisance law. Rather, the issue is whether government can contract on a contingency fee basis to prosecute a public nuisance action by 10 counties and cities involved in the manufacture and distribution of lead-based paint.

The trial court had ruled against the use of contingency in complaints filed by government entities. A California appeals court ruled that contingency is acceptable if litigation is under the control of the government entity. Here's the opinion, courtesy of the Law and More blog.

The Civil Justice Association of California has filed briefs supporting the trial court. The California Supreme Court has granted a hearing, though no oral argument date has been set.

Former plaintiffs' lawyer Richard "Dickie" Scruggs is on his way to Mississippi from the federal prison in Kentucky where he is serving five years for bribing a state judge in a legal-fee dispute.

On Tuesday, Scruggs is expected to plead guilty to corruption charges related to a second judicial bribery scheme, The Clarion-Ledger reported.

The second scheme dates back to 1994, when two of Scruggs' former law partners alleged he never paid them their share from asbestos and tobacco litigation. The case bounced from court to court until 2005; when U.S. Magistrate Judge Jerry Davis ordered Scruggs to pay one partner, Alwyn Luckey, $17 million. A year later, special master Bobby Sneed made recommendations that largely sided with the other partner, Bob Wilson, leading his lawyers to seek $15 million in legal fees.

Scruggs installed his one-time lawyer Joey Langston as lead counsel, assisted by then-lawyer, Timothy Balducci. A few months later, Hinds County Circuit Judge Bobby DeLaughter ruled entirely in Scruggs' favor, saying Scruggs owed nothing more than the $1.5 million he'd made in belated payments.

In a hearing last year, Balducci testified Scruggs called his brother-in-law, then-U.S. Sen. Trent Lott, to swing consideration for a federal judgeship so DeLaughter would rule in Scruggs' favor. Rather than pay DeLaughter money, Balducci said the Scruggs camp promised to have Scruggs contact Lott so DeLaughter would be considered for the judgeship.

DeLaughter has been suspended while his case is being considered by the state Commission on Judicial Performance.

Governor Schwarzenegger has added 14 trial court judges, the majority of whom came from private practice or worked as superior court commissioners, according to the Daily Journal (subscription) and press releases from the Governor's office. The Governor has made 368 Superior Court and five Appellate Court appointments from 2004 through January 30, 2009. They are:

Los Angeles County

Geanene Yriarte, 39, has served as a deputy district attorney for the Los Angeles County district attorney's office since 1997. She earned a law degree from Loyola Law School.

Victor H. Greenberg, 48, has been a Superior Court commissioner since 2000.

Maren E. Nelson, 52, left Morrison & Foerster, where she was a partner, in 2004 to serve as a Superior Court commissioner. She attended the USC Gould School of Law.

Huey P. Cotton, 52, is a shareholder at Cozen O'Connor, where, according to the firm's web site, he concentrates his practice in commercial litigation, entertainment and sports litigation, employment practices, and toxic torts. He graduated from Temple University Beasley School of Law.

David S. Cunningham III, 53, has served as a principal at Meyers, Nave, Riback Silver & Wilson since 2007 and as a partner at Kelly Lytton & Vann since 2005. The New York University School of Law graduate has more than two decades of experience in redevelopment law and condemnation matters.

Howard L. Halm, 66, is an equity partner for Wilson, Elser, Moskowitz, Edelman & Dicker. He graduated from the University of San Diego School of Law.

Michael Terrell, 51, has served as an assistant U.S. attorney since 1991. He earned a law degree from Stanford Law School.

Merced County

Donald J. Proietti, 54, has been a partner for Allen Proietti & Fagalde since 1983. According to the firm's web site, he is experienced in interpreting and applying California personal injury, insurance, employment, business, trust, estate, and probate law. He graduated from the Thomas Jefferson School of Law.

San Bernardino County

Christopher Marshall, a 57-year-old Democrat, has been an attorney with the San Bernardino County counsel's office since 2007. Marshall earned his law degree from Loyola Law School.

San Diego County

Ronald F. Frazier and 54, has been of counsel for Dietz, Gilmor & Associates since 2003 and a sole practitioner since 2000. He graduated from the University of San Diego School of Law graduate.

Tamila E. Ipema, 52, of Oceanside, has worked as a commissioner for the San Diego County Superior Court since April 2008. She earned a master of laws degree from Georgetown University and a law degree from the University of Louisville.

San Francisco County

Bruce E. Chan, 52, has served as a commissioner for the San Francisco County Superior Court since 2004. He graduated from the UC Davis School of Law.

Santa Clara County

Beth A.R. McGowen, 44, has been a partner for Bingham McCutchen since 2002. She is experienced in intellectual property, health care, real estate and labor litigation, according to the firm's web site. She earned her degree from Hastings College of the Law.

Sutter County

Susan E. Green, 38, has worked for the Sutter County district attorney's office as a supervising deputy district attorney since 2007 and previously served as a deputy district attorney from 1995 to 2007. She graduated from the University of the Pacific, McGeorge School of Law.

"First layoffs, then lawsuits."

That's the lead of a New York Times story in which lawyers predict the number of discrimination claims will jump this year, as more and more frustrated people take legal action against their former employers.

Employees of several companies are trying to bring class actions, according to the article. Individual claims against companies are also rising. And a number of laws -- most of them passed in better times -- also give victims of layoffs more legal arguments to draw on since the last steep recession in the early 1980s.

The suddenly unemployed may be emboldened by a sense that the Obama administration will be more aggressive in enforcing employment laws, reporter Jonathan D. Glater wrote. Under the Bush administration, the number of employment lawsuits brought by the government declined for several years.

"This is the first time we've had major reductions in force with the full panoply of employment protections we have now," Joseph M. Sellers, head of the employment practice at the law firm Cohen Milstein Sellers & Toll, told the paper. "We are embarking on a new phase in employment litigation."

Courts and lawmakers have also given employees more options under longstanding anti-discrimination laws. In the fall, Congress modified laws prohibiting discrimination against the disabled, increasing the number of conditions considered disabling.

While President Obama and Congress strive to boost the economy through upgrades in health care technology, why not consider a legal upgrade as well, such as adopting the provisions of California's Medical Injury Compensation Reform Act?

Congress has considered MICRA-like reforms in the past (including a $250,000 cap on medical malpractice awards for non-economic damages), but has always met resistance not only by lobbyists for personal injury lawyers but sometimes by those who simply feel that health care liability is a state -- not a federal -- issue.

But with a federal investment in electronic medical records a big part of the current economic stimulus plan, there is a renewed rationale for national standards on medical malpractice liability.

It's happened before. When Congress saw the advantages of electronic data interchange in the processing of health care insurance reimbursements, it passed the Health Care Portability and Accountability Act so that there would be national standards for the privacy of protected health information.

A federal standard that balances an injured plaintiff's right to recovery with the need to keep health care affordable to every one of the nation's citizens would be just the kind of economic stimulus the nation needs. Not only would national MICRA-like reforms strengthen the health care safety net, they also would make American businesses more competitive by lowering employee health benefit costs.

With many of the components in the federal stimulus plan based mostly on economic theory, including a program with a proven track record, like MICRA, would add an element of certainty to this historic effort to move the country forward.

Gordon Ownby is general counsel of the Cooperative of American Physicians, Inc., www.cap-mpt.com, and can be contacted at gownby@cap-mpt.com.

The number of lawyers in the California Legislature continues to dwindle and has hit an all-time low. The percentage of all lawmakers with a California bar card has dropped to 17.5%, a marked decline from 1970 when nearly half of the Legislature was eligible to practice law, Cheryl Miller reported in The Recorder.

In the Assembly, only 15 of the 80 members are lawyers, although three more have attended law school (Curren Price, Anthony Adams, and Mike Eng) but are not licensed in California. Interestingly, only one of the licensed lawyers is a Republican -- Van Tran of Costa Mesa.

In the Senate, only six of the 40 members are California lawyers, although one more, Gil Cedillo, did attend law school at the Peoples' College of Law. Again, only one Republican Senator -- Tom Harman of Orange -- is a lawyer.

Lawyers in the Assembly

Jared Huffman (D-San Rafael) attended the University of California at Santa Barbara and graduated from Boston College School of Law. He worked as an attorney for the Natural Resources Defense Counsel.

Noreen Evans (D-Santa Rosa) graduated from California State University, Sacramento and went to law school at McGeorge School of Law. She practiced civil litigation at two different Santa Rosa law firms, and was a city council member before joining the Assembly.

Dave Jones (D-Sacramento) attended DePauw University, Harvard Law School and Harvard's Kennedy School of Government. He worked as a legal aid attorney for Legal Services of Northern California. He was a White House Fellow and also worked under Janet Reno. He plans to run for State Insurance Commissioner in 2010.

Alyson Huber (D-El Dorado Hills) attended Cornell University and received her law degree from University of California Hasting College of Law. She is a former business lawyer who specialized in business litigation and intellectual property law.

Alberto Torrico (D-Fremont) attended Santa Clara University and received his law degree from Hastings College of Law in San Francisco. He was a solo practitioner in his own law firm. He worked at a law firm different from his own, and also worked as a lawyer for the Santa Clara Valley Transportation Agency.

Bill Monning (D-Monterey) attended University of California, Berkley and received his Juris Doctorate from University of San Francisco School of Law. He was a professor at Monterey College of Law, worked as a mediator, and ran a non-profit organization.

Anna Caballero (D-Salinas) attended University of California San Diego and is a graduate of the University of California at Los Angeles School of Law. She was a lawyer for California Rural Legal Assistance, and a founder of a small law firm.

Juan Arambula (D-Fresno) attended Harvard University and Stanford University. He completed his law degree at the University of California, Berkley. He has extensive local government experience, having served on the Fresno County Board of Supervisors.

Pedro Nava (D-Santa Barbara) attended California State University, San Bernardino and completed his law degree at University of California, Davis. He was a deputy district attorney and a civil litigator, representing nurses and health care practitioners.

Mike Feuer (D-Los Angeles) attended Claremont Men's College, and graduated from Harvard and from Harvard Law School. The new chair of the Assembly Judiciary Committee worked as Executive Director of Bet Tzedek Legal Services. He has taught at the University of California at Los Angeles School of Law.

Paul Krekorian (D-Burbank) attended the University of Southern California and received his law degree form the University of California, Berkley. He practiced business, entertainment and intellectual property law in the law firm Fisher & Krekorian.

Charles Calderon (D-Whittier) attended California State University, Los Angeles, and University of California at Davis School of Law. Before entering politics, he worked as a prosecutor in the Los Angeles City Attorney's Office. First elected to the California Assembly in 1982, he was the first Latino lawyer elected to the Assembly.

Ted Lieu (D-Torrance) attended Stanford University and received his law degree at Georgetown University. He worked as military prosecutor in the Judge Advocate General Corps, and clerked for a Ninth Circuit Judge.

Van Tran (R-Costa Mesa) attended University of California, Irvine and received his law degree at Hamline University. The Vice-Chair of the Assembly Judiciary Committee was managing partner of his own law practice.

Martin Block (D-San Diego) attended Indiana University and received his Juris Doctorate from DePaul University College of Law. He was a college professor and dean at San Diego State University.

Lawyers in the Senate

Darrel Steinberg, Senate Pro Tem (D-Sacramento), received his undergraduate degree in economics from University of California at Los Angeles and his law degree from the University of California, Davis. He practiced law for 10 years as an employee-rights attorney for the California State Employees Association and also represented the Maloof brothers, Sacramento developers and owners of the Sacramento Kings.

Ellen Corbett, Chair of the Senate Judiciary Committee (D-San Leandro), attended Chabot Community College, California State University Hayward, and graduated from University of California, Davis. She received her law degree from McGeorge School of Law in Sacramento. She was a plaintiff's lawyer in private practice.

Lou Correa (D-Santa Ana) studied economics at California State University, Fullerton and graduated from law (and business) school at California State University, Los Angeles. He worked as an investment banker.

Tom Harman (R-Orange) graduated from Kansas State University and graduate d from Loyola of Los Angeles School of Law. He practiced law at the law firm Lucas & Deukmejian.

Denise Moreno Ducheny (D-San Diego) attended Pomona College and received her law degree form Southwestern University School of Law in Los Angeles. She practiced law in San Diego before entering politics.

Joe Simitian (D-Palo Alto) attended Colorado College and Stanford University. He received his Juris Doctorate from University of California Berkeley's Boalt Hall. He has worked as an attorney for public schools.

A bill introduced by California Senator Ellen Corbett (D-San Leandro) would expand the damages available to car buyers suing dealers and salespeople for "any fraud or contract or statutory violation ... in connection with the purchase or lease of a motor vehicle."

Current law limits damages to the amount of the vehicle. Senate Bill 95 would also allow "incidental and consequential" damages and "reasonable attorneys fees."

The bill would also require dealers to pay off liens on used cars before reselling them, and would increase the amount of a dealer's bond from $50,000 to $250,000 for a franchisee of new motor vehicles and to $100,000 for independent dealers.

The Civil Justice Association of California (CJAC) has not taken a position on the bill.

Peter Welch, president of the California New Car Dealers Association, told the Contra Costa Times that the bill would punish above-board dealers and likely force hundreds of otherwise strong dealers out of business.

Once each summer people of all ilk trek to Nevada's Black Rock Desert for several days of the stepped-up zaniness, relaxed inhibitions, pseudo epiphanies, self-designed rituals, and bauble exchanges that make up the Burning Man Festival.

The celebration concludes with torching of the Burning Man, a huge wooden presider which is cheered as it chars. The event has become, regrettably to some, commercial and corporate, with high ticket prices, waivers, and liability insurance.

Good thing.

Anthony Beninati is appealing a San Francisco Superior Court summary judgment ruling tripping up his damage claim against Black Rock City LLC (the Burning Man enterprise) for his own burns suffered when he stumbled and fell into the Burning Man's ashes trying to ignite a photo of a late friend.

Black Rock City is prepared for legal eventualities. Its web site says it has "recruited several new attorneys and law students to our legal team, expanding the team to over 25 qualified volunteers from several states."

The team, however, may have been less-prepared for Mr. Beninati's lawsuit. The Burning Man web site notes that "the ticket waiver informs all participants of the risks they will encounter at Burning Man. Consequently, the community's lawyers get to work mostly on other (more fun) legal issues."

On the other hand, Black Rock City should not have been surprised by litigation. Its site also claims that "the Burning Man community is chock full of lawyers."

Beninati's claim doesn't reveal whether his attorney Evan Marshall (of former state plaintiffs' lawyer association president Ian Herzog) was one of them.

Anthony Beninati v. Black Rock City, LLC.pdf