Recently in Legislature Category

The controversy over defrocking the state rock is now truly an international story after the Voice of America ran a piece about this issue. Here's a key quote from the article:

"Critics are also suspicious of the one of the bill's endorsers. The group Consumer Attorneys of California is backing (Sen. Gloria) Romero's bill, and skeptical opponents say trial lawyers are hoping to publicize and expand their asbestos-related lawsuits."

You can read the article - and view the video version of the story - here. You can read selected articles and blog posts on the controversy here.

Following are selected articles, editorials, Websites, and letters to the editors about efforts by the trial lawyers to use legislation to defrock the state rock to make it easier to file asbestos-related lawsuits. This section will be updated as new articles appear.

News Media Articles

The irrational fear of our state rock
Los Angeles Times July 27, 2007
Fear is a wonderful thing. It keeps us alive. But it also can lead us to spend money and time and other precious resources in silly and inefficient ways. Let's set aside the charge that a state legislator could spend her time more wisely than promoting a law to drop the state rock (from statedom, not the top of her opponent). More.

Californians Debate Fate of Official State Rock
Voice of America July 26, 2007
Romero is sponsoring the bill to revoke serpentine's status as the state rock. Critics like George Rossman say that is a waste of time. A mineralogist at the California Institute of Technology, Rossman says serpentine is only dangerous if you grind it up and inhale the particles. More.

Rock stuck in a hard place
San Francisco Examiner, July 7, 2010
Decades after California led the nation in celebrating its geological riches by designating a state rock, serpentine's heady official status could be stripped away by lawmakers. California is on the verge of dumping serpentine as its official state rock because of health concerns that arise when asbestos, which occurs naturally in serpentine, is ground up and inhaled.... The legislation, however, has baffled geologists and minerals aficionados. "The rock itself is benign -- unless you happen to be caught in an avalanche or get hit in the head by somebody throwing it," California State Geologist John Parrish said. More.

Dan Walters: California state-rock bill has serpentine agenda
Sacramento Bee, July 9, 2010
...There is, however, more than symbolism in Sen. Gloria Romero's Senate Bill 624.
Its declarations, geologists say, are scientifically incorrect. And if it's enacted, it could open new avenues for litigation, which explains why lawyers who pursue asbestos suits are pushing it. More.

California May Drop Its Official State Rock
New York Times, July 13, 2010
LOS ANGELES -- Empirically speaking, geologists are not a particularly irascible group. But those who make their living studying rocks, minerals and gems in California -- and increasingly those scientists beyond the state's borders -- are enraged over a bill in Sacramento that would knock serpentine, the official state rock, off its mantel. The lawmaker and others who would like to see serpentine stripped of its title say the olive green rock found all over the state is a grim symbol of the deadly cancers associated with asbestos, which can be found in the rock. Geologists, who have taken to Twitter on behalf of the rock, assert that serpentine is harmless and is being demonized by advocates for people with asbestos-related diseases and possibly their trial lawyers, too. More.

Calif may dump 'state rock' that contains asbestos
Associated Press, July 15, 2010
In 1965, California lawmakers named serpentine the state rock because it symbolized the Gold Rush years and contained a mineral being put to myriad industrial uses. Nearly half a century later, attitudes toward that mineral -- asbestos -- have changed, and one state lawmaker wants serpentine stripped of its status. More.

Californian health lobby sets sights on state rock
The Independent (U.K.), July 16, 2010
Once upon a time, California's energetic public health lobby concentrated on trying to stop people from smoking, or drinking beer, or from making a daily pilgrimage to their local fast-food restaurant. Now, having presumably run out of other things to ban, they have launched a crusade against a naturally occurring green mineral. Politicians in Sacramento, the state capital, are on the verge of approving a motion to strip serpentine of its status as California's official "state rock", on the grounds that it can contain chrysotile, a type of asbestos believed to cause an incurable form of cancer called mesothelioma if its dust particles are inhaled. ... "There is no way anyone is going to get bothered by casual exposure to that kind of rock unless they were breaking it up with a sledgehammer year after year," Malcolm Ross, a former employee of the US Geological Survey, told The New York Times. "If they keep the asbestos issue bubbling, it means money for politicians, money for lawyers and money for scientists to investigate." More.

Geologists protest bill to remove state rock
San Francisco Chronicle, July 16, 2010
It takes real effort to impugn the reputation of an inanimate object, but there is a movement gaining traction in Sacramento to strip the California state rock of its lofty title for what geologists say is a trifling offense: It contains asbestos. The stone in question, serpentine, has been the state rock since 1965, but a group led by Sen. Gloria Romero, D-East Los Angeles, wants it removed from the symbols list because it often contains the carcinogen linked to 2,500 deaths a year in the United States. Romero has introduced SB624, which would strip the olive green stone of its title, but she is now running up against a gaggle of geologists and natural history buffs who have removed their spectacles, thrown down their lab coats and are rallying to the rock's defense. More.

Lawmaker seeks to defrock 'toxic' official state rock
BBC July 17, 2010
A California lawmaker hopes to remove serpentine's designation as the state's official rock. The olive green rock contains traces of asbestos, and the lawmaker says taking away its status will raise awareness of diseases linked to asbestos. "California should not designate a rock known to be toxic to the health of its residents as the state's official rock," proposed legislation states. Geologists have protested against the move, saying the rock is harmless. More.

PD Editorial: The state rock - Bill to defrock state rock brings more intrigue to Sacramento
Santa Rosa Press Democrat, July 21, 2010
Chances are most Californians don't know that we have an official state flower (the golden poppy). There's a state dance (western swing), not to be confused with the state folk dance (square). And there are about 30 other officially sanctioned, and equally trivial, symbols, a list that includes a state insect (the California dogface butterfly) and not one, but two state ghost towns (Bodie and Calico). There's also a state rock. That fact probably escaped most of us, too, with no harm done. But if you've been following the news, you know that trial lawyers, cancer patients and geologists are fighting over the fate of serpentine. More.

Editorial: State stones will break your bones
Monterey Herald, July 23, 2010
The midsummer political doldrums often generate a series of inanities and silly tempests, nonstories that can keep the talk-show hosts in full rant. This year's silliness is the quarry quarrel arising from serpentine, the ubiquitous rock of this age, the stone that can be found in 42 of California's 58 counties, the metamorphic phenomena that has long boasted proudly of its status as the state rock. ... The bill now sits on the Assembly floor, like a hard consolidated mineral matter, generating howls of protest from all quarters. Tort reform advocates hate the bill because they think it will open the door to more asbestos litigation. Rock hounds and geologists believe that serpentine is getting a bad rap, that it is no less dangerous than scores of other native California rocks that contain asbestos. We welcome the full debate on the issue -- just as soon as the state can resolve more pressing issues. Like, for instance, its $19 billion deficit. More.

Website and Blog Posts

SB 624 Senator Romero's Lies (and more lying liars that tell them)
Minerals expert Justin Zzyzx, July 24, 2010
Enough of us being just upset about SB-624, it is just time to call them out for the lies. With all of the evidence being put forth, the sheer amount of Geologists, Botanists and Learned men and women speaking out against this issue and the crazy amount of negative press and public comment, they STILL hold fast to this bill. More.

Serpentine - SB 624, Senator Gloria Romero and ADAO
Minerals expert Justin Zzyzx, July 5, 2010
On July 2nd I received an email from the office of Senator Romero, instructing me to call Linda Reinstein - bill sponsor and CEO of ADAO, the non-profit awareness group dedicated to stamping out Asbestos. I was being instructed to discuss this issue with someone who has all the information available, but cherry picks to prove her undeniable fact; Inhaled fibers can cause cancer. This is the fact I knew I was going to hear and indeed, while Mrs. Reinstein is a very nice lady, any scientific inquiry I gave her would be met with the reply, inhaled fibers can cause cancer. More.

Something Doesn't Feel Right About This: The Serpentine Issue in California
Garry Hayes, Geology instructor, Modesto Community College, July 2, 2010
The more I read about this, the more disturbed I become. Andrew Alden gets right to the point about the very strange goings-on in the California legislature while they avoid working out the state budget. Senate Bill 624 would remove serpentine as the California State Rock, and declare in effect that serpentine is a dangerous mineral. The declaration could very well be legally binding, possibly leading to lawsuits for anyone who uses serpentine as a building stone or a classroom sample. For a short bill, it is full of inaccuracies and misstatements of fact. I wrote about this the other day, and as I have learned more, I am concerned that we are being conned in the name of a tragic disease. Somebody may be making an underhanded political move with the intention of making a lot of money. If this isn't true, the parties are welcome to respond. More.

Throwing the Baby Out with the Bathwater: The Serpentine Issue in California
By Garry Hayes (The Daily Kos, July 8, 2010)
The California legislature is about to strike an unfortunate blow at education, and apparently not one of the legislators, Democratic or Republican, seems aware of it. Senate Bill 624 would remove serpentine as the state rock of California, and furthermore would declare the rock to be dangerous to the health of state residents. The bill, short as it is, contains several factual errors, and instead of being "uncontroversial" as one assemblyperson put it, may open up the state and residents to litigation. Serpentine is not a toxic rock. It sometimes contains the fibrous mineral chrysotile asbestos, but chrysotile asbestos is not the form of asbestos that is proven to cause mesothelioma and lung cancer. More.

The Law Against Serpentine: The Attorneys' Arena
Andrew Alden, About.com, July 12, 2010
At About.com, I have celebrated serpentinite (the rock commonly called serpentine) for many years as a rock-lover. I'm upset about California's Senate Bill 624, which removes serpentine as the state rock, as a rock-lover. That's an educational issue. But the Civil Justice Association of California, conservative group that works against its idea of frivolous lawsuits, recognizes the legal havoc that SB624 could cause. In fact, I recognized it myself yesterday as I visited the Oakland Museum of California, where serpentinite boulders are part of the decor. Once a panicked parent complains about serpentine, when even the idea of such a complaint arises, educational institutions will be pulled unwillingly into this legal/political battle. SB624's sponsors are mesothelioma lawyers setting a trap by having the state declare that serpentine, in and of itself, is a carcinogen. This will allow them to rack up billable hours in court whenever anyone--a landowner who wants to shut down a noisy historic railroad line, the owner of a rural hilltop palace who wants developers out of his viewshed, opponents of a new highway--is willing to invoke the "A-word" asbestos on their behalf. More.

Official Serpentine Rock Awareness Facebook Page
California Serpentine Awareness! Keep our Rock! Fight SB 624
http://www.facebook.com/home.php?#!/group.php?gid=132118583490156&ref=mf

Letters to the Editor/Story Comments
Joan K, SF Gate, June 27, 2010
This is a bill with no basis in science . Serpentine is not a single mineral, but rather a family of minerals that all share common traits in elemental structure, over 20 as of 2010. There are all kinds of serpentine minerals found all over the earth; chrysotile, the dangerous form of asbestos, is not found in all of the deposits or even most of the deposits. Chrysotile is indeed dangerous when it is crushed up into dust for industrial use. In the ground it proves little to no risk to man or animal. SB 624 as originally introduced by Senator Gloria Romero of East Los Angeles addressed issues regarding solid waste. The bill was later morphed into anything having to do with serpentine, making it potentially actionable in court. That means that one could start tort on crushed stone quarries that mined chrysotile-free Serpentine, and thus affect many other businesses. The bill as now introduced is heavily supported by the asbestos litigation industry - don't support it, as it do.... More.

John M. Stolz, civil engineer, Foster City, SF Chronicle, July 3, 2010
Senate Bill 624 incorrectly characterizes one of the most commonly excavated rocks in California as a carcinogenic. If passed, this nonfact will become fact. I am concerned that it could require all serpentine to be excavated as if it were a carcinogenic material. This will substantially and unnecessarily increase the cost of construction. For public works contracts, this means unnecessarily higher costs to taxpayers. The text of SB624 declares that serpentine contains chrysotile asbestos and that exposure to it increases the risk of the cancer mesothelioma. This is a nonfact. Serpentine is a general name given to magnesium iron phyllosilicate minerals, and it can refer to any of 20 varieties. There are three polymorphs (or kinds) of serpentine: antigorite, chrysotile and lizardite, but only chrysotile contains asbestos. By erroneously stating that all serpentine contains chrysotile, it's a short step to requiring all serpentine to be handled and disposed of as a hazardous material - whether it actually is or not. Please derail this well-meaning but ludicrously inaccurate and dangerous bill from becoming law. More.

Unfit to rule, Richard. J Stenquist, Kensington, SF Chronicle, July 17
I can't decide whether I should laugh, cry, or get so mad I could spit asbestos. Democratic Sen. Gloria Romero's waste of time and effort in introducing legislation to "strip the California state rock (serpentine) of its lofty title" because it contains asbestos is a stunning demonstration of why just 16 percent of Californians approve of how the legislature is doing its job. Further, she immediately becomes a prime example of why Democrats cannot seem to become worthy of being a majority party - too many of them are blithering idiots. I'll bet Rush Limbaugh gritted his teeth with pleasure when he read about this, and Sarah Palin probably wrote a note on her hand to use the item in her next speech. More seriously, everybody knows that California is in serious straits financially. The California Legislature is the entity principally responsible for solving those problems. Why, oh, why, on God's asbestos-polluted earth, would they waste time arguing about a rock? More.

Wasting time on rock, Sal Scarpato, Westlake Village, Ventura County Star, July 19, 2010
At a time that the state is financially broke and the legislature is unable to reach a realistic budget solution, State Sen. Gloria Romero has disgraced herself by wasting the legislature's time and the taxpayers' money trying to change the state rock. Even if the bill becomes law, what possible impact could it have? Will serpentine just disappear from the ocean floor, from our mountains or from our fruited plains? Serpentine in the ground has no impact on human health. Only mining and refining serpentine releases asbestos fibers into the air, and that activity is already heavily regulated. How much clearer could it be? Another legislator bought by special interests! The best outcome would be the bill voted down with Sen. Romero successfully recalled. At the very least, the voters should turn her out of office at the next election. More.

If the Legislature can shift its attention from dealing with the state rock to somewhat more important issues - such as taking steps to improve the economy - two scholars at the Pacific Research Institute recently proposed a simple step that would help a lot: tort reform.

Lawrence J. McQuillan and Hovannes Abramyan write that businesses are leery of locating or expanding in states whose legal systems encourage excessive litigation, and the recent U.S. Tort Liability Index report shows that California is ranked 41st out of the 50 states in the quality of its civil justice tort climate.

"Business leaders remain leery of California because of its sky-high tort costs and skewed courtrooms - business defendants lose at trial 65 percent of the time," the scholars point out.

Abusive lawsuits cost every American a hidden "tort tax" of about $2,000 a year in higher prices, fewer new products and reduced access to health care. And the current system is very inefficient at its intended purpose - less than 15 cents of every tort-cost dollar goes to compensate plaintiffs.

In 1975, California led the nation with its landmark medical-liability act MICRA. California lawmakers should again get serious and enact meaningful class-action and damage-award reforms, in special legislative session if necessary. This would be the best jobs bill and budget fix they could provide.

You can read the entire op-ed here.

Lots of news to report today on the ongoing controversy to defrock the state rock and at the same time make it easier for trial lawyers to file more lawsuits over naturally occurring asbestos.

First of all, CJAC is now officially opposed to the bill, SB 624:

TO: Members of the California Assembly
FROM: John H. Sullivan, President
RE: SB 624 (Romero)

The Civil Justice Association of California must respectfully oppose Senate Bill 624 (Romero).

This proposal, originally dealing with solid waste management, was amended in May to remove the designation of serpentine as California's state rock. The basis for the bill is stated emphatically in a legislative "finding" which members of California's scientific community strongly point out is "full of inaccuracies and misstatements of fact." (Modesto Community College geology professor Garry Hayes, former president of the National Association of Geoscience Teachers, Far Western Section http://geotripper.blogspot.com/2010/07/something-doesnt-feel-right-about-this.html )

We believe SB 624, if enacted into law, will be used in an attempt to justify naming additional blameless public and private defendants in asbestos litigation. Out-of-state plaintiff law firms specializing in asbestos litigation have been moving to California to take advantage of our evidence and forum rules. This litigation is already placing an unjustified burden on our trial courts, most notably in San Francisco and Los Angeles. (See legal articles on CJAC website, for example: http://www.cjac.org/blog/2009/07/the-any-exposure-causation-the/ and http://www.cjac.org/blog/2009/11/california-home-of-the-asbesto/ )

We have no position on whether serpentine or any other mineral should be California's state rock, or whether the state should even have one. But should the matter be dealt with, doing so should not be based on bad science that inspires bad law.

Therefore, the Civil Justice Association of California must oppose SB 624 and urges your "No" vote.

Second, the Gray Lady Herself, the New York Times, weighs in with a great article today about the controversy.

The lawmaker (Senator Gloria Romero, D-Los Angeles) and others who would like to see serpentine stripped of its title say the olive green rock found all over the state is a grim symbol of the deadly cancers associated with asbestos, which can be found in the rock. Geologists, who have taken to Twitter on behalf of the rock, assert that serpentine is harmless and is being demonized by advocates for people with asbestos-related diseases and possibly their trial lawyers, too.

The article goes on to quote Dr. Malcolm Ross, a geologist who retired from the U.S. Geological Survey in 1995.

"There is no way anyone is going to get bothered by casual exposure to that kind of rock...unless they were breaking it up with a sledgehammer year after year."

Dr. Ross and other opponents of the bill are concerned that removing serpentine, which is occasionally used in jewelry, as the state's rock would demonize it and thus inspire litigation against museums, property owners and other sites where the rocks sit; they cite the inclusion of a letter of support from the Consumer Attorneys of California with the bill as evidence.

"If they keep the asbestos issue bubbling," Dr. Ross said, "it means money for politicians, more money for lawyers and money for scientists to investigate."

Our point exactly.

Finally, geologists and other fans of serpentine have launched a couple of online efforts to save the state rock. You can find posts on Twitter by using the #CAserpentine hashtag, and you can now join a save the rock Facebook group.

Sacramento Bee columnist Dan Walters has found some interesting things when picking up the rock that is SB 624, a bill ostensibly designed to remove the designation of serpentine as California's official state rock because it can contain a form of asbestos.

Walters' column today points out the obvious: when the trial lawyers are involved, there's money behind the measure.

There is, however, more than symbolism in Sen. Gloria Romero's Senate Bill 624.

Its declarations, geologists say, are scientifically incorrect. And if it's enacted, it could open new avenues for litigation, which explains why lawyers who pursue asbestos suits are pushing it.

Walters reports that geologists say that most serpentine doesn't even contain asbestos.

The problem with SB 624 is that it flatly equates serpentine with deadly asbestos even though geologists say that's incorrect. Geology websites have been buzzing with the criticism, pointing out that while serpentine rocks may contain chrysotile, most do not.

"It occurs in serpentine sometimes," says Garry Hayes, a Modesto Junior College geology teacher and former regional president of the National Association of Geoscience Teachers.

And more to the point, he says there's a reason the trial lawyers' lobbying group and two high-powered law firms specializing in suing over asbestos-related health problems are supporting the bill.

Were SB 624 to become law, declaring serpentine as carcinogenic, it could widen the opportunities for lawsuits against owners of property with naturally occurring outcroppings of serpentine. And it's become a new skirmish in the perennial war between personal injury lawyers and the business-backed Civil Justice Association of California.

"I've heard that personal injury lawyers will leave no stone unturned in their hunt for new cases, but this is ridiculous," said John Sullivan, the association's president.

If you read the column online, be sure to scroll down to the comments section. It's always heartening to find that many people understand the problems that lawsuit abuse cause to the economy and to Californians.

Legislation that would have allowed the Los Angeles city attorney to empanel grand juries to investigate misdemeanor issues dealing with the environment, consumer protection, workforce safety, and other issues failed passage this week in the Assembly Public Safety Committee when it received only one "aye" vote.

CJAC opposed the bill, SB 1168 by Senator Gil Cedillo (D-Los Angeles) because we believe grand juries should be used to investigate only felonies, due to the costs to the taxpayer and the time involved in the grand jury process. Current law allows grand juries to be called by the attorney general or a district attorney, but they can only bring indictments if there is at least one felony charge. We believe that restriction is appropriate.

The powerful association representing the state's trial lawyers is running a bit scared today now that Proposition 14 has been approved, according to a recent article in one of California's leading legal newspapers. That fear explains the last-minute plaintiffs' lawyer mailer (with help from the teachers union and other public employee unions) urging Democrats to vote "no."

Prop. 14 will create an open primary, pitting the top two vote-getters - regardless of which party they belong to - against each other in the November election. In districts in which one party is particularly strong, that could mean both candidates could be from the same party.

CJAC strongly supported Prop. 14 because it will increase chances that more moderate, pragmatic politicians from both parties will be elected - especially after less-gerrymandered districts are redrawn in time for the 2012 elections.

But the plaintiffs' attorneys' association is concerned because Prop. 14 might mean they'd have to ask their well-heeled members to open their checkbooks more often. An article by Cheryl Miller in The Recorder points out that an open primary means the trial lawyers will need to "generate enough campaign cash to back their favored candidate in not just one but two potentially highly competitive contests in June and November."

You mean giving the voters a real choice is a bad thing? We agree with Amanda Fulkerson, the spokesperson for the Yes on 14 Committee, who said, "(W)hat's wrong with talking to the voters past June? We don't think that races should be won in June."

And if The Recorder's headline - "Open primary could empty trial lawyer wallets" - comes to pass, that wouldn't be such a bad thing, either.

You can read the entire article here. (Sub. req'd)

Deep Throat famously told Watergate reporters Bob Woodward and Carl Bernstein to "follow the money" as they investigated the scandal that eventually led to the downfall of President Richard Nixon.

In keeping with that admonition, CJAC has compiled its latest report on trial lawyer contributions to incumbents and candidates running for key statewide offices and the Legislature. The bottom line: plaintiffs' attorneys have contributed almost $1.65 million so far this election cycle, from January 2009 to March of this year.

The biggest recipients of trial lawyer cash: Jerry Brown at $521,000, followed by Insurance Commissioner candidate Dave Jones, Assembly hopeful Betsy Butler - who is also the trial lawyers' lobbying group's chief fundraiser - Insurance Commissioner candidate Hector De La Torre, and Attorney General hopeful Rocky Delgadillo.

CJAC's report shows the full extent of trial lawyer influence in California politics because it looks beyond the substantial contributions by their political action committees to find the even larger amounts given by individual lawyers, their firms, and families.

You can read the press release here.

Perhaps it was a coincidence, but the Assembly Judiciary Committee waited until the trial lawyers' association's Lobby Day to politely kill two common-sense measures that were part of Governor Schwarzenegger's tort reform package this year and strongly supported by CJAC. (Of course, the trial lawyers scored another win on their Lobby Day.)

The first bill, AB 2588 by Assembly Member Audra Strickland (R-Thousand Oaks), would have aligned state law dealing with class action lawsuits with federal law and for the first time systematically addressed how class actions are filed and pursued.

Amazingly, despite the huge impact class action lawsuits have on the state's business climate, class action law remains a barely coherent jumble that has been cobbled together from court rulings over the past four decades. What's emerged from that process is a system that in many cases encourages consumer lawsuits over trivial matters in which lawyers receive millions of dollars in fees and the supposed victims receive coupons for discounts on future purchases of the product.

As CJAC Vice President Kim Stone testified, the Association is not opposed to class action lawsuits because they have proven invaluable to right real wrongs such as sex discrimination. But when California routinely ranks as one of the most lawsuit-friendly states in the nation, and businesses determine where to locate and expand based in no small part on that reputation, she said aligning state law with the more balanced federal law on the issue would help the economy and restore balance in the system.

The second bill was AB 2740 by Assembly Member Roger Niello (R-Fair Oaks), which would have allowed victims to recover all their actual damages but would have limited punitive damages at three times actual damages, prevented punitive damages in cases where products had received governmental approval, and limited all noneconomic damages in civil cases - so-called "pain and suffering" damages - to $250,000.

"These three common-sense reforms would go a really long way towards making California more friendly to business while at the same time protecting the truly injured to make sure they receive their just compensation," Stone told the committee.

Niello argued that with a lagging economy and high unemployment, the committee needed to take action to improve the business climate and provide jobs for working Californians.

"It's been stated by (the trial lawyers) that there's no need, there isn't a problem. There is a need, there is a problem. The problem is the reputation of California as a place to do business in is in the tank, and part of the reason for that is our civil justice system," Niello told the committee.

Both bills were defeated on party-line votes, with committee Democrats voting against them and committee Republicans voting for them.

Tuesday was the annual Lobby Day for the state's trial lawyers, the day more than 100 plaintiffs' attorneys visit legislative offices to remind lawmakers that the trial lawyers need more opportunities to file and win lawsuits - and certainly do not like any ideas that might limit their ability to do so.

A number of bills in the latter category were scheduled for Tuesday, presumably so legislators supported by personal injury attorneys could kill legal reform bills while the lawyers were in the hearing rooms.

The fate of one such bill really demonstrated the trial lawyers' single-mindedness and the support it enjoys in Sacramento. Senator Alex Padilla (D-Pacoima) presented a bill, SB 1281, to further encourage businesses and building owners to install automatic external defibrillators. AEDs are life-savers used to administer an electric shock through the chest wall to the heart after someone suffers cardiac arrest. Designed to be used by almost anyone in an emergency, they use built-in computers assess the patient's heart rhythm, determine whether the person is in cardiac arrest, and signal whether to administer the shock. Audible cues guide the user through the process.

Dr. James Dunford, the medical director of the city of San Diego, a professor in the Department of Emergency Medicine at UCSD Medical Center, and the president of the Greater San Diego Board of the American Heart Association, testified that AEDs are the only thing standing between a person who goes into cardiac arrest and almost certain death.

Dunford, who in 2000 helped found San Diego Project Heart Beat, a program designed to increase the use of AEDs, noted that the survival rate without an AED is just 6 percent, but the survival rate jumps to 50 percent or more if there's a public defibrillator program in place. "The only thing that is going to make a difference is the shock. CPR is merely a bridge to hold the person until the shock arrives" he told members of the Senate Judiciary Committee.

Current law provides building owners and people who use the devices when someone goes into cardiac arrest limited immunity from being sued. However, the law mandates a number of requirements that must be met, including developing a written plan describing the procedures to be used, training a fixed number of employees or tenants on how to use them, and checking them every 30 days to make sure they are in good working order. Failure to comply with any one of these requirements would remove the limited liability protection and open the door for a lawsuit.

The not-surprising result: many property owners are reluctant to buy and install AEDs because they don't want to open yet another avenue for being sued.

Jan Ogar, representing the Emergency Nurses Association, said AEDs need to be as ubiquitous as fire extinguishers in public buildings, but that too many companies, non-profits, churches and other groups are fearful of liability, a point confirmed by Matt Hargrove of the California Business Properties Association.

A long list of people echoed their support, including a man whose life was saved by the device, his wife, nurses, the California Hospital Association, the American College of Cardiology, the California Medical Association, the League of California Cities, and a representative of church groups.

A slam dunk? Not so fast. It's the trial lawyers' Lobby Day, remember.

Testifying against the bill was John Montevideo, a Santa Ana trial lawyer and president-elect of their lobbying group, who piously proclaimed that of course trial lawyers support AEDs but said without proper training and maintenance, the devices may not be as effective as they could be. Then he got to the main point: "This bill is a blanket immunity bill. The law as it stands grants a qualified immunity...why should that be changed?"

His point was echoed by Greg Landin, a paramedic who also owns a company that makes money training people and businesses in the use of AEDs, CPR, and other emergency rescue procedures. Ironically, Landin conceded the supporters' point, saying it was "very possible" that more businesses would install AEDs if the threat of liability was eliminated, but he said the training that his company offers is critical.

Senator Padilla tried to refocus the committee members by pointing out that even if people aren't trained, the devices are nearly foolproof and can't possibly hurt anyone since the patient is almost certainly going to die without one. And again, he pointed out that even if some AEDs weren't as well maintained as everyone would like, having them available greatly increases the chances that more people who go into cardiac arrest will live.

But committee Democrats - the Chair, Ellen Corbett of San Leandro, and Mark Leno of San Francisco and Loni Hancock of Berkeley - agreed with the trial lawyers.

"I do believe that you are asking us a very serious question today, and that is whether we allow for some liability in cases where people have not felt it's important to be trained and maintain their devices," Corbett told Padilla.

That settled, the committee voted 3-1 to kill the bill, even with last-minute amendments Padilla offered to try and mollify the trial lawyers.

The moral of the story? Better hope you don't go into cardiac arrest in a store or office building whose owner decided quite appropriately that the risk of facing a multi-million dollar lawsuit outweighed buying life-saving devices and making sure that every step of the legal requirements were followed to the letter.

Trial lawyers suffered a defeat this week when legislation that would allow shareholders to tie up corporate political giving - and sue over alleged violations and drops in stock value that political contributions supposedly caused - was pulled from a committee agenda by its author.

CJAC strongly opposes Assembly Bill 2321 by Assembly Member Pedro Nava (D-Santa Barbara), because it would have encouraged yet more lawsuits at a time when California really needs more jobs and less litigation.

The bill would have required corporations to report all political giving to shareholders and allow them to file objections about the corporation's political giving. It also would have allowed a shareholder to request a return of his or her pro rata share of the funds, and it would have allowed an individual lawsuit by the shareholder against the corporation for any violation or for any contribution that negatively affected the stock price. Furthermore, it would have allowed the one-sided award of attorney's fees to the plaintiff.

Shareholder litigation was the cottage industry pioneered by now-disgraced trial lawyer Bill Lerach, in which plaintiffs sued if a company's stock value dropped or didn't meet expectations, usually regardless of market forces and acts outside a company's control. As usual in these kinds of cases, the supposed victims generally received little if anything, while the lawyers earned multimillion dollar fees.

It appears that Nava pulled the bill from the Assembly Elections Committee agenda because of the mounting opposition and likely lack of support from committee members. However, this is Sacramento and no bill is really dead until the end of the session, so it could come back at any time.

CJAC today urged state legislators to support a bill that will eliminate rules that unfairly penalize public and private defendants for appealing civil trial decisions to a higher court.

Senate Bill 1117, authored by Senator Mimi Walters (R-Laguna Niguel) and sponsored by CJAC, would ensure that defendants pursuing legal appeals would pay interest on judgments at a rate comparable to market rates during the appeals process, not the fixed 10 percent currently set by state law.

"Although the issue seems obscure, the current process makes defendants think twice about appealing because if they lose the appeal, the amount of money owed to the plaintiffs can jump by as much as 20 percent," said CJAC President John H. Sullivan. "For example, if the appeal of a $1 million judgment took two years to complete and was unsuccessful, a defendant would owe an additional $200,000."

Read more

The Civil Justice Association of California (CJAC) urges swift legislative action on a proposal introduced on Thursday that would stop the worst abuses of the state's jumbled class action law, while still protecting the right of truly harmed Californians to have their day in court.

Assembly Bill 8X 38 would align California with the federal system and other states by giving judges clear statutory rules for handling class action cases and greatly reducing the legal uncertainty that makes these lawsuits expensive and time-consuming.

The bill - dubbed the Consumer Legal Remedies Act - was authored by Assemblywoman Audra Strickland (R-Thousand Oaks) and sponsored by CJAC, and would bring much-needed clarity to class action law and help counter the states competing with us for good jobs.

"This bill strengthens California law," said CJAC President John H. Sullivan. "It will stop the game playing and uncertainty that results under current state law, while protecting the class action remedy in cases where it's appropriate."

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A bill that would add SCUBA diving to a list of "hazardous recreational activities" -- which immunizes public entities and employers from liability when people engage in risky activities -- passed the state Assembly and will now go to the Senate for consideration.

In Assembly Bill 634, authored by Assemblywoman Diane Harkey and supported by CJAC, SCUBA diving would join a host of other activities in Government Code section 831.7, including diving, animal riding, bike racing, kayaking, surfing, waterskiing, white water rafting, rock climbing, and hang gliding, among others.

In a letter to the California Assembly, Kim Stone, Vice President-Legislation for CJAC, noted: "SCUBA diving certainly fits with those other kinds of hazardous activities. State and local governments should not face liability for risks assumed by people who engage in hazardous activities."

AB 634 - Letter to California Assembly.pdf

So far this year the Legislature is off to a better start, as far as civil litigation goes. On January 6, Assembly Member Marty Block pulled his bill, AB 989, before it could be heard before the Assembly Insurance Committee.

The bill would have let private lawyers become self-deputized vigilantes and go after insurance companies to get damages and -- no surprise -- attorney's fees. It would allow lawsuits against insurers by anyone alleging to be harmed -- including people who aren't even policyholders.

As CJAC President John H. Sullivan wrote in an op-ed published on Fox&Hounds Daily, this is the first proposal to crop up this legislative session that would expand plaintiffs' lawyers' ability to sue, but it isn't likely to be the last.

In previous years, plaintiffs' lawyers have worked hard to crush consumers' right to settle their disputes in arbitration, fought against any efforts to reform California's vague class action rules, and worked to preserve laws that make the state a haven for speculative lawsuits and a risky place for businesses to operate and create jobs.

Also on January 6, the Governor announced he is proposing another class action reform proposal, along with other changes to bring balance to a system now tilted against business and individual -- and at times even government -- defendants.

"Now legislators should go on the offensive and start enacting laws that improve the legal climate and produce jobs for their constituents," Sullivan wrote.

Governor Arnold Schwarzenegger on Wednesday announced a plan to curb excessive litigation and propose reforms to improve the legal climate for California businesses.

In his annual State of the State address before a joint session of the state Legislature, the Governor said his top priority is creating jobs and getting California's economy back on track. To accomplish that, and to create an environment in which businesses can thrive, he plans to propose a series of changes to regulations governing class action law suits, products liability suits, and seek to cap punitive damage awards.

According to out an outline of the proposal from his office, Schwarzenegger will propose a set of statutory changes that will set forth clear guidelines for class action lawsuits to improve California's litigation climate by allowing defendants to appeal class action certifications and by requiring the plaintiff rather than the defendant to pay for notification to other potential class members.

In addition, these reforms will provide for limitations on the scope of damages assessed against business persons for defective products and eliminate unreasonable and excessive noneconomic and punitive damages awards.

As the statement describes, "Unfair and frivolous suits impact where companies locate or expand. California's current litigation laws lead to large settlements with little value to consumers but become worth millions to lawyers at the expense of California businesses.

"Current statutes also impede growth by holding businesspersons liable for defective products -- even if the seller had no knowledge or control over the defect -- and allowing for punitive damage awards that are wildly unpredictable among similar cases."

The Civil Justice Association of California has in past legislative sessions sponsored legislation to improve the state's class action law. The most recent effort in last year's Assembly Bill 298 would have given defendants in a class action lawsuit the same right plaintiffs have, the right to appeal the class certification decision.

Other CJAC proposals in the area of class action and employment law can be found in an op-ed here.

On Wednesday, the Assembly Insurance Committee will consider a scheme that would let private lawyers become self-deputized vigilantes and go after insurance companies to get damages and, of course, attorney's fees.

The attempt in Assembly Bill 989 would allow lawsuits against insurance companies by anyone alleging to be harmed -- including people who aren't even policyholders.

CJAC President John H. Sullivan pointed out in an opinion article in Capitol Weekly, a Sacramento newspaper, that this isn't the only area in which plaintiffs' lawyers are trying to expand their "private attorney general" status.

For example, they are attacking a long-respected case rule that protects government impartiality by prohibiting public prosecutors from hiring private lawyers on a contingency-fee basis.

However, as Sullivan notes, state legislators have another chance this legislative session to consider reforms that would help reverse the perception that California is a sue-happy state. Read about suggested reforms in the op-ed here.

Sullivan wrote: "Jobs and the economy suffer when a state's litigation field tilts toward plaintiffs' lawyers. State lawmakers should grab a mallet and wallop Assembly Bill 989, then focus on some affirmative ways to rein in abuses of our civil justice system."

A law designed to reduce the number of abusive lawsuits under the federal Americans with Disabilities Act while also improving compliance with important access laws has yet to impact the number of ADA lawsuits filed, according to The Recorder legal newspaper's Cheryl Miller.

As Miller noted, attorneys on both sides of the issue say the number of lawsuits brought under state and federal disability access laws has not dropped.

However, one ADA defense specialist who helped draft the law, Senate Bill 1608, said it has cut the amount of damages plaintiffs are seeking, if not the number of claims they file.

"I have fewer clients coming to me saying, 'I'm going to go out of business, I'm going bankrupt, I'm going to have to dip into my home equity,'" said San Diego attorney David Warren Peters, the CEO and general counsel of Lawyers Against Lawsuit Abuse. Plaintiffs "can no longer make these very large demands. All things considered, that's a great improvement."

The law, which CJAC supported, created access specialists who can inspect businesses for access violations. Business owners can then display signs indicating their properties have been inspected, which allows them to ask a court for a 90-day stay of litigation if targeted for an access violation.

Also, statutory damages are now tied to the number of times a plaintiff was denied access, not to the number of violations found on the site.

One problem with SB 1608, Miller wrote, is that many ADA lawsuits are brought in federal court, where the reach of the law is unclear.

"It's a heyday [for plaintiffs] in this economy," said Catherine Corfee, a Carmichael attorney who defends businesses sued for access violations. "They know nobody can afford to challenge them."

Several business owners sued under the ADA have talked to CJAC about the lawsuit and its effect on their business. View their stories at www.cjac.org/problem.

For his dedication to bringing fairness and balance to California's civil justice system, the Civil Justice Association of California has honored Senator John Benoit with its Civil Justice Leadership Award.

During this past legislative session, Benoit authored several bills that would improve California's legal climate and help businesses, consumers, and taxpayers.

For example, Senate Bill 39 was written in response to a California Supreme Court decision that stripped traditional liability protections from non-medical "Good Samaritans" and such volunteers providing non-medical help. The bill, which went into effect immediately, extends liability protections to any person providing help in good faith at the scene of an emergency.

Kim Stone, CJAC's vice president-legislation, said in a news release at the time: "Senator Benoit's constituents and all Californians are lucky to have him working in Sacramento to support the interests of consumers, businesses, and Good Samaritans, and to ease the burdens on our courts."

On November 4, Benoit was appointed by Governor Arnold Schwarzenegger to fill the 4th District Riverside County Supervisor seat. He will be sworn into that position on December 1.

Click here to learn more about the award and its previous recipients.

Governor Arnold Schwarzenegger has vetoed 229 out of 707 bills that were sent to his desk -- including three bills opposed by CJAC that would have led to increased litigation.

In a news release, CJAC President John H. Sullivan applauded Schwarzenegger's vetoes: "Governor Schwarzenegger has made decisions that will benefit consumers and prevent litigation from needlessly draining away dollars from California's struggling economy."

The bills are:

• Assembly Bill 2 (De La Torre), which would have undercut a plan to protect consumers from unfair health coverage cancellations and driven more cases into the courts.
• Assembly Bill 335 (Fuentes), which would have limited California employers' use of mandatory choice of law and forum selection clauses in employment contracts. The bill was unnecessary because current law already protects California residents from unreasonable contract and choice of law provisions.
• Assembly Bill 793 (Jones), which could have harmed employers by undoing existing statutes of limitations on employment discrimination claims, fostering speculative and stale claims against employers.

Of AB 2, Sullivan said: "The Governor's veto of AB 2 in particular gives lawmakers the chance to work out a proposal that would allow the review process of health care insurance rescissions to be helpful and fair -- without benefitting plaintiffs' lawyers in the process."

The Governor in his veto message mentioned trial lawyers, writing that "this bill continues to have a provision that benefits trial lawyers rather than consumers."

For more information on the bills, click here.

An attempt to ban the use of the chemical Bisphenol A in baby bottles and formula containers in California has failed.

Senate Bill 797, authored by Senators Fran Pavley and Carol Liu, which CJAC opposes, twice fell short of 41 votes necessary for passage. It was moved to the inactive file on September 11, so it can be considered again in 2010. The bill was essentially a remake of last year's SB 1713 (Migden), which died on the Assembly floor.

The bill would have banned the use of BPA beginning in 2011 -- unless the chemical's use is approved through the newly-constituted green chemistry review process established by legislation last year. Banning a safe product (BPA has been approved by the FDA and the European Food Safety Agency) would have very likely led to unnecessary lawsuits. Click here to read more about CJAC's concerns with the bill.

Meanwhile, Assembly Bill 2, which CJAC opposes, passed the Senate and the Assembly and will now go to the Governor. The bill, authored by Assemblyman Hector De La Torre, would propel health care rescissions into court, thereby increasing the overall cost of insurance. It is similar to AB 1945 of last year, which the Governor vetoed.

The bill creates an independent panel to review decisions to rescind individual health care contracts. However, in a letter to the Governor urging his veto, CJAC President John H. Sullivan noted that the bill requires the independent review organization to determine whether a health plan enrollee "intentionally misrepresented" material information on his or her application in order to obtain health care. As in last year's bill, this requirement to ascertain intent renders the independent review process both impotent and moot.

"This crippling of the review organization's ability to conduct a useful review is almost certain to propel virtually every rescission approval into court," Sullivan wrote. "That will be an unhealthy outcome for health care costs -- but not for the plaintiffs' lawyers involved. Inserting lawyers into the health care system will only lead to greater complication and expense."

Assembly Bill 2 - Veto Letter to Governor Schwarzenegger.pdf

Senate Bill 797, which CJAC opposes, failed to pass the Assembly on Wednesday. It received 35 aye votes; 41 are needed.

The bill, authored by authored by Senators Fran Pavley (D-Santa Monica) and Carol Liu (D-Pasadena), is essentially a remake of last year's SB 1713 (Migden), which died on the Assembly floor. It would ban use of the chemical Bisphenol A in baby bottles and formula containers beginning in 2011 -- unless the chemical 's use is approved through the newly-constituted green chemistry review process established by legislation last year.

Banning a safe product (BPA has been approved by the FDA and the European Food Safety Agency) would very likely lead to unnecessary lawsuits. The makers of silicone breast implants, for example, dealt with only 150 lawsuits in the 30 years prior to an FDA ban. This number increased to more than 5,000 per year in each of the four years following the ban. The implants were ultimately determined to be safe -- but not before the company that made them went bankrupt as a result of the lawsuits.

The Civil Justice Association of California is concerned because almost half of the national class action lawsuits regarding BPA originated in California. Passage of this bill would enflame those lawsuits.

The alleged science behind the bill is weak. In addition to the FDA and European Union approvals, the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) -- the lead agency for the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) -- declined to require Proposition 65 warning labels for BPA.

Senate Bill 797 was granted reconsideration -- and is therefore eligible for another vote before the end of session deadline on Friday.

Senate Bill 797 - Assembly Floor Alert.pdf

Assembly Bill 2, which CJAC opposes, passed the Senate on Tuesday night and will now return to the Assembly for concurrence with the Senate amendments.

This bill, authored by Assemblyman Hector De La Torre, will lead to increased lawsuits and will help lawyers -- not patients.

It creates a review panel to review rescission of health plan contracts by health plans. However, the bill contains trial lawyer amendments that prevent the review process from being helpful and fair. The reviewing body is tasked with determining the subjective point of view of the health plan applicant -- but is prevented from talking to the applicant or using expert witnesses to help them determine intent.

The process that is left will likely propel review decisions into the courts, leading to additional lawsuits.

The bill is similar to last year's AB 1945, which initially passed but was vetoed by the Governor.

Click here to read more about CJAC's position on the bill.

The Los Angeles Times reported that the Legislature passed AB 2 but that Governor Schwarzenegger has vowed to stop signing bills until further notice. He rebuked legislators for failing to make progress on the state's water needs and its prison overcrowding crisis, as well as for refusing to act on confirmation of several of his key appointments, the Times reported.

One CJAC-sponsored bill, recently signed into law by Governor Arnold Schwarzenegger, received a little ink today.

Writing in the National Law Journal, reporter Amanda Bronstad noted that Assembly Bill 470, authored by Assemblyman Roger Niello, will allow insurance companies to directly provide medical or accident records to an insured party's lawyer. Current law in the Insurance Code only allowed the insurance company to obtain and share a copy of the report with the insured person -- but not the insured's lawyer.

"If we can make things easier, which leads to quicker settlements, everyone will be happier and there will be fewer lawsuits," Kim Stone, CJAC's Vice President-Legislation, told the Journal. "If these insurance claims get resolved quicker, you don't have to go to a lawsuit."

In a press release, CJAC President John H. Sullivan lauded the Governor for signing AB 470 and Assemblyman Niello (pictured) for authoring "a bill that will, in these difficult economic times, help carve out a piece of lawsuit bureaucracy and facilitate settlements."

Bronstad's article also noted that the Governor signed one Good Samaritan bill. Assembly Bill 83 will protect people who are not in the medical profession from being sued after they help someone at the scene of an accident, unless their actions rise to the level of gross negligence or recklessness.

Senate Bill 722, authored by Senate Pro Tem Darrell Steinberg (D-Sacramento), which CJAC opposes, was moved to the inactive file. The bill is most likely dead for the session, but it could be removed from the inactive file at any time.

The bill is unnecessary and would invite unjustified litigation in the effort to reduce greenhouse gas (GHG) emissions.

Senate Bill 722 would subject legitimate GHG offset providers -- who provide real, permanent, verifiable, and additional emission reductions -- to meritless litigation by parties who have not suffered any actual injury.

Senate Bill 722's information retention requirements would, in many cases, require the retention (or compilation) of information of little or no relevance to the emission reduction offset at issue while doing little or nothing to ensure the accuracy of emission reductions advertising. Instead, it would create fertile ground for creative pleading of imagined injuries. In addition to providing overly broad standing for "any person" to sue, the bill encourages lawsuits by authorizing attorney fees for "any action brought" by plaintiffs -- even those who do not prevail.

Senate Bill 722 - Assembly Floor Alert.pdf

Governor Arnold Schwarzenegger has signed into law an important piece of legislation that will expedite the processing and settlement of insurance claims and reduce the number of cases in California's courts.

Assembly Bill 470, authored by Assemblyman Roger Niello and sponsored by CJAC, allows an insurance company to provide a copy of a police or accident report to an insured's lawyer (instead of having to relay them through the insured).

Before the bill's passage, California's Insurance Code allowed insurance companies to obtain and share copies of police and accident reports with the insured but not with their lawyers. Since an insured person's lawyer could obtain a copy of such a report via existing laws in other California codes anyway, the new law simplifies the process by eliminating the bureaucratic run-around and allowing insurance companies to provide copies to the lawyers directly. This ensures quicker processing of insurance claims and reduces the delays and confusions that can lead to unnecessary lawsuits.

The bill was one of 137 waiting for the Governor's signature or veto as a result of the Governor's announcement in late June that he would not sign any legislation until the state budget had passed. After signing the budget in late July, the Governor signed 128 bills and vetoed nine.

Governor Arnold Schwarzenegger today signed two important pieces of legislation that will shield Good Samaritans from civil liability: Senate Bill 39, authored by Senator John Benoit, and Assembly Bill 83, authored by Assemblyman Mike Feuer.

The bills, which CJAC supported, amend California's Health and Safety Code to ensure that liability protections extend to all persons -- both medical professionals and laypeople -- who help out in good faith at the scene of an emergency. Both bills have urgency clauses and will go into effect immediately.

The bills were authored in response to the California Supreme Court decision in December 2008 in Van Horn v. Watson, in which the court ruled that the Health and Safety Code provides liability protection only to medical professionals who provide emergency medical care.

In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Van Horn alleges that the movement caused her subsequent paralysis.

Click here to read more background on the bills. Watch CJAC's Vice President-Legislation, Kim Stone, testify on AB 83 here.

Also, click here to read a news release from Assemblyman Feuer's office.

The budget has been slashed and signed, but the Legislature still has a slew of bills to consider when it returns to Sacramento on August 17.

Here is an update of some of the remaining bills that CJAC either supports or opposes.

Support

Assembly Bill 470 (Niello) permits insurance companies to give copies of police or accident reports directly to insured persons' lawyers (instead of having to relay them through the insured). This will expedite insurance settlements and reduce the number of cases in the courts. The bill, which CJAC sponsored, was passed and sent to the Governor to be signed (but returned because the Governor was not signing any bills during the budget impasse). It will be resent to the Governor.

Senate Bill 39 (Benoit), similar to AB 83, was authored in response to the California Supreme Court decision that non-medical Good Samaritans are not entitled to liability protections when they help people. It amends California's health and safety code to ensure that liability protections extend to all persons -- both medical professionals and laypeople -- who help out in good faith at the scene of an emergency. The bill is currently on its way to the Governor's desk.

Oppose

Senate Bill 722 (Steinberg) would invite unjustified litigation by subjecting greenhouse gas emissions offset providers -- who provide emissions reductions -- to meritless litigation by parties who have not suffered any injury. The information and disclosure requirements allow a lawsuit even if the underlying offset did exactly what it was supposed to do. As current law already allows an individual who has suffered injury or lost money or property to sue the offset provider who sold him a fraudulent greenhouse gas credit, this bill would unnecessarily fill the courts with excessive -- and extortive -- lawsuits. The bill is currently on the Assembly Floor.

Senate Bill 797 (Pavley) would ban the chemical Bisphenol-A (BPA) for products intended for use by children under age 3. However, BPA has been approved by the FDA and the European Food Safety Agency, and California recently judged it did not warrant a Proposition 65 warning label. Banning a safe product would only serve to enflame existing -- and encourage new -- lawsuits. Senate Bill 797 is currently on the Assembly floor.

Assembly Bill 2 (De La Torre) is similar to last year's AB 1945, which initially passed but was vetoed by the Governor. It would impose a new standard for rescission of individual health plan contracts by prohibiting independent review organizations from taking testimony, asking questions, or obtaining expert opinion to determine whether individuals under review "intentionally misrepresented" material information from their applications in order to obtain health care. This would increase ambiguity in health plan contracts and propel virtually every rescission approval into court. Assembly Bill 2 is on its way to the Senate Appropriations Committee.

Assembly Bill 335 (Fuentes) would limit California employers' use of mandatory choice of law and forum selection clauses in employment contracts. This bill is unnecessary because current law already protects California residents from unreasonable contract and choice of law provisions. It also limits the courts' discretion in determining the appropriateness of selection clauses in employment contracts. The bill is on its way to the Senate Appropriations Committee.

Assembly Bill 793 (Jones) could harm employers by undoing existing statutes of limitations on employment discrimination claims. Statutes of limitations ensure that injured parties present claims within a reasonable amount of time and that employers can "close the books" on past liabilities and focus on planning for and investing in the future. In cases where plaintiffs became aware of wrongdoing only after the statute of limitations had passed, California's courts have protected plaintiffs by declining to enforce such statutes. This bill is thus unnecessary and potentially harmful -- both to California's employers and its economy. Assembly Bill 793 is currently on the Senate floor.

Governor Schwarzenegger signed Assembly Bill 5 (Evans) into law late Monday afternoon. The bill, which CJAC supports, brings California law regarding discovery into the 21st century by addressing issues related to discovery of electronically stored information.

The bill has an urgency clause and will go into effect immediately. It is a re-do of last legislative session's AB 926 (Evans), which was vetoed by Schwarzenegger despite having no opposition.

In a letter to Schwarzenegger urging him to sign AB 5, CJAC President John H. Sullivan wrote: "Current California law does not expressly address the new and complex issues relating to discovery law and electronically stored information. ... With the amendments dealing with inaccessible information, we are confident the bill is a fair and balanced approach that will work well for plaintiffs, defendants, their lawyers, and judges."

Bisphenol A is currently the "toxin du jour," but the chemical has been used safely for about 60 years to make plastic bottles hard and shatter-proof, for the coatings of metal food containers, and even in cell phones and medical devices, wrote the president and founder of the American Council on Science and Health.

In a commentary in Forbes, Elizabeth M. Whelan notes that California's Senate recently passed Senate Bill 797, which would prohibit the use of BPA in any baby bottle or container of infant formula. Chicago recently banned such products from city shelves, and Connecticut Attorney General Richard Blumenthal wants Coca-Cola, Del Monte and other companies investigated for trying to stop anti-BPA legislation. Whelan writes:

"There is no end in sight to the anti-chemical witch hunt against 'toxins' in products. Once BPA is banned, the activists will move onto another scare: Are there trace levels of dioxin in the paper cups your toddler drinks out of? Ban paper cups! Could there be lead in the playground sand box? Close all sandboxes! If in five years the alternative to BPA is shown to cause cancer in rodents -- well, ban that too.

"Finally, underscore the fact that chemicals like BPA, which have been used for decades with no deleterious health consequences, may well be safer than hastily introduced alternatives."

As Kim Stone, CJAC's Vice President - Legislation, notes in letters to California legislators in opposition to the bill, the use of BPA for food contact applications has been and continues to be recognized as safe by both the United States Food and Drug Administration and the European Food Safety Agency.

Prohibitions will likely lead to additional unmerited litigation against manufacturers and users of BPA, Stone wrote. The bill is also unnecessary in light of the Legislative passage of AB 1879, a measure designed to give sound science the lead in evaluating chemical risks in consumer products.

Senate Bill 797 will be heard on June 30 in the Assembly Environmental Safety and Toxic Materials Committee.

Calling it a "step in the right direction," Kim Stone, CJAC's Vice President-Legislation, testified Wednesday in front of the Senate Education Committee in support of a bill that will allow teachers to choose individualized personal training for negotiation, mediation, and conflict resolution.

Assembly Bill 1, authored by Assemblyman William Monning, passed the committee and will now go to the Senate floor.

Ongoing teacher education allows teachers to choose to study appropriate disciplines on their own time in order to enhance their skills and augment the teaching of state-based educational standards, Stone wrote in a letter to the Senate Education Committee.
Assembly Bill 1 - Senate Education Committee.pdf

The Civil Justice Association of California supports the study of dispute resolution as a means toward achieving and maintaining a civil society.

"We believe that allowing teachers to choose ongoing education in the area of conflict resolution may very well help to reduce excessive and unjustified litigation that can drive up expenses to schools," Stone noted in her testimony, which can be viewed below. "Particularly (in) times now of budget pressures it does not make sense for schools to be spending money on litigation that they could be spending educating their students."

She mentioned a January 2008 study by Citizens Against Lawsuit Abuse, entitled "The Fourth R of California's School Districts: Ripped off by Litigation," which noted that three of California's five largest school districts paid $32.8 million in litigation costs in just one year -- 2005.

A bill that will shield non-medical Good Samaritans who help out at the scene of an emergency from civil liability will now be considered by the full Senate.

Assembly Bill 83, which CJAC supports, passed 5-0 out of the Senate Judiciary Committee today. The bill was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued. It amends Health and Safety Code Section 1799.102 to ensure that it provides liability protections to all people, both medical and laypeople, who help out in good faith at the scene of an emergency.

Click here to read a news release from Assemblyman Feuer's office, which includes a comment from CJAC President John H. Sullivan.

Kim Stone, CJAC's Vice President - Legislation, testified on AB 83 in front of the Senate Judiciary Committee today.

Assembly Bill 83, one of several Good Samaritan bills authored this legislative session, is set for hearing on Tuesday before the Senate Judiciary Committee. It was authored by Assemblyman Mike Feuer, chair of the Assembly Judiciary Committee. The bill's principal co-author, Senator John Benoit, also introduced a similar bill, SB 39.

The bill, which CJAC supports, 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.

The bill was authored in response to the California Supreme Court decision in December in Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102 to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. Based on this reading of the statute, a non-medical person who provides non-medical help can be sued by the person he or she rescued.

In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Alexa Van Horn alleges that the movement caused her subsequent paralysis.

A hypothetical result following this approach: If a potential drowning victim is pulled from the water by one Good Samaritan and given CPR by another -- but is injured during the process -- the saved person can sue the person who got him ashore but not the person who administered CPR. This awkward result has been criticized by The New York Times, Time Magazine, the Los Angeles Times and others.

Senate Bill 797, which would ban the chemical Bisphenol-A (BPA) from uses in baby bottles and formula containers, has passed the state Senate and will now go to the Assembly. The bill is authored by Senators Fran Pavley and Carol Liu.

The bill, which CJAC opposes, is a remake of Senate Bill 1713 (Migden) of the last legislative session. That bill died on the Assembly floor.

The Civil Justice Association of California opposes the bill because it is likely that banning a safe product -- BPA has been approved by the FDA and the European Food Safety Agency -- will lead to additional lawsuits.

This is what happened with silicone breast implants. The makers of the silicone implants had 150 lawsuits in the 30 years prior to an FDA ban, and more than 5,000 a year in each of the four years after the ban. The implants were ultimately determined to be safe -- but not until the company that made them went bankrupt as a result of the lawsuits.

The Civil Justice Association of California is concerned because almost half of the national class action lawsuits regarding BPA originated in California.

"With California voters' overwhelming May 19 rejection of the major ballot measures intended to help balance the state's budget, lawmakers more than ever should enact straightforward economic recovery solutions that will help fuel our economic engine and produce jobs and tax revenue," John H. Sullivan, president of the Civil Justice Association of California (CJAC), said in a news release distributed today.

Tangible legislation that will make California a more attractive place to do business is bound to result in more jobs sooner, he said. Several simple statutory changes in the civil justice area would help achieve this.

Although three of the proposed bills failed to move in the Legislature, and under normal rules would be dead for the session, these are not normal times, Sullivan said.

"National and even international media have been describing California as a broken state," Sullivan said. "There is no time better than now to show tangibly that California is shedding anti-jobs and business policies."

Legislators passed up a chance to eliminate -- at no cost to taxpayers -- an unfair and costly irritant that has signaled an anti-business attitude for years.

Senate Bill 393, authored by Senator Tom Harman (R-Huntington Beach) and sponsored by CJAC, would bring California's judicial interest rules up to date and ensure that defendants during legal appeals are paying interest at a rate comparable to market rate. The bill failed passage in the Senate Judiciary Committee.

In a news release, CJAC commended Senators Tom Harman and Mimi Walters for supporting the bill.

Click here to watch CJAC's Kim Stone testify on the bill.

Assembly Bill 470, authored by Roger Niello (R-Fair Oaks), passed the Assembly Insurance Committee on the consent calendar and will now go to the Assembly Floor.

The bill, which CJAC is sponsoring, eliminates delays in the timely processing and settlement of claims caused by existing law, which prevents an insurance company from disclosing a police report to anyone, even to a lawyer for an insured.

This simple bill would allow a work-around to expedite processing and settlement of claims.

Arbitration is a fair, cost effective, and efficient method of resolving disputes, Kim Stone, CJAC's Vice President - Legislation, told the Assembly Natural Resources Committee.

Ms. Stone testified in support of Assembly Bill 696, authored by Assembly Member Curt Hagman, which would have allowed an applicant and a lead agency to agree to resolve disputes arising from an environmental impact report through arbitration rather than through a lawsuit. Assembly Bill 696 failed to pass out of the committee.

Several studies have also showed the utility of arbitration. A Stanford Law Review empirical study of arbitration in employment law concluded that from the employee's point of view, arbitration yields roughly the same result as litigation, but is much faster.

Another study reviewed 301 cases of consumer arbitration cases, all performed by the American Arbitration Association (AAA), and found the upfront cost to be quite low -- $96 for claims seeking under $10,000 and $219 for claims seeking between $10,000 and $75,000. The study shows that "access to justice is provided in a relatively inexpensive and expeditious manner, and outcomes are not biased in favor of businesses that arbitrate on a repeat basis," said Geoff Lysaught, director of the Searle Civil Justice Institute.

The California Supreme Court has also supported the use of pre-dispute arbitration agreements to resolve complaints.

Click here to watch Ms. Stone's testimony.

Senate Bill 807, which would clarify California law regarding meal and rest periods, was held in the Senate Labor Committee this week without a vote.

The bill, authored by Senate John Benoit, which CJAC supports, clarifies that employers must "make available" meal and rest periods, not "must make sure employees take them." Court interpretations of Labor Code Section 512 are spawning lawsuits because employers are uncertain as to how to comply with the requirement that employers "provide" meal and rest breaks.

The bill also states that a violation for failure to provide a meal break is a penalty and not a wage. That change means the statute of limitations for violations would be reduced from three years (for wages) to one year (for penalties).

Kim Stone, CJAC's Vice President - Legislation, told the committee that some interpretations of the code prompts employers to discipline their workers for skipping a meal or rest period. Also, labor law class action lawsuits are taking a toll on California courts, she said, citing studies by the California Judicial Council and CJAC.

A study by the Judicial Council found that class action lawsuits are booming in California, but that only a small percentage (0.7%) ever go to trial. The study found a 63% increase in class action filings between 2000 and 2005 in the 12 courts reviewed. Employment class actions rose dramatically -- from 29 cases in 2000 to 120 cases in 2005, an overall increase of 313.8%.

The CJAC study of class action lawsuits found results similar to the Judicial Council report. The study revealed an increase in class action filings in the six largest counties in each year from 2004 to 2007. In those six counties, there were an average of more than four class action lawsuits filed each day the courthouses were open. Nearly half of those suits (47%) involved employment laws. The second largest group (36%) was in the consumer action category.

Senate Bill 807 was not voted upon so that the author, supporters, and opponents could continue to consider options.

Click here to watch Ms. Stone's testimony.

Senate Bill 797, which CJAC opposes, passed the Senate Committee on Environmental Quality.

The bill, authored by Senators Fran Pavley (D-Santa Monica) and Carol Liu (D-Pasadena), would ban the chemical Bisphenol-A for uses in baby bottles and formula. It is a remake of SB 1713 (Migden) of last year, which died on the Assembly Floor.

The Civil Justice Association of California opposes the bill because it is likely that banning a safe product -- BPA has been approved by the FDA and the European Food Safety Agency -- will lead to additional lawsuits.

This is what happened with silicone breast implants. The makers of the silicone implants had 150 lawsuits in the 30 years prior to an FDA ban, and more than 5,000 a year in each of the four years after the ban. The implants were ultimately determined to be safe -- but not until the company that made them went bankrupt as a result of the lawsuits.

The Civil Justice Association of California is concerned because almost half of the national class action lawsuits regarding BPA originated in California.

The bill is next scheduled to be heard in the Senate Health Committee on Wednesday, April 29.

SB 797 - Position Paper - Senate Environmental Quality Committee.pdf

Assembly Bill 1196, which would expand California's False Claims Act in a way that could unfairly expand government's lawsuit power against private citizens and businesses, passed the Assembly Judiciary Committee on Tuesday. The bill, which CJAC opposes, will now go to the Assembly Appropriations Committee.

Kim Stone, CJAC's Vice President-Legislation, testified in opposition to the bill. Click here to watch.

Click here for more information about the bill and CJAC's concerns with two primary provisions.

Senate Bill 377, authored by Senator Ellen Corbett (D-San Leandro), passed the Senate Judiciary Committee 5-0 and will now go to the Senate Appropriations Committee.

The bill, which CJAC supports, would authorize 50 additional judges. The Civil Justice Association of California supports the bill because our members need a judicial system that can effectively and fairly resolve disputes. As California Chief Justice Ron George has said, "The right to a fair hearing is an empty promise if there is no one to preside over the courtroom."

In his annual State of the Judiciary address, George urged lawmakers to find the money to fill 100 new judgeships, saying the additional judges are needed to ease a growing backlog of criminal and civil cases. He also urged support of SB 377.

Senate Bill 393, which would increase fairness in court awards by bringing California's judicial interest rate up to date, is on the California Chamber of Commerce's just-released list of job-creating legislation.

So far, the list includes 14 proposals that would improve the state's job climate and stimulate economic recovery.

Senate Bill 393, authored by Senator Tom Harman (R-Huntington Beach) and sponsored by CJAC, would ensure that defendants during legal appeals are paying interest at a rate comparable to market rate. Its passage would also send a message that the state is eliminating -- at no cost to taxpayers -- an unfair and costly irritant that has signaled an anti-business attitude for years.

Since 1982, the interest rate in California for prejudgment and post judgment interest has been fixed at the rate of 10% per year. Most key interest rates today fluctuate between 4% and 7% -- far below California's fixed rate. The bill will set the judicial interest rate at the prime rate plus 2%. Click here for more information about the bill.

Assembly Bill 874, authored by Lori Saldana (D-San Diego), passed the Assembly Judiciary Committee today on the consent calendar. The consent calendar is for bills with no dissenting votes, and bills are voted on without discussion.

The bill, which CJAC supports, would remove the requirement that city and county owned or operated skateboard parks require users to wear elbow and knee pads. Under California Health and Safety Code Section 115800, skateboard parks owned or operated by a local government receive civil immunity from lawsuits because skateboarding is a hazardous recreational activity under Section 831.7 of the Government code. In order to receive that immunity, the local government must comply with a list of safety rules and regulations.

Removing the requirement that skateboarders must use elbow and knee pads will encourage more skateboarders to use safer city or county parks, without the dangers of collisions with cars or pedestrians. California courts have agreed that skateboarding is a hazardous activity and have declined to find liability when skateboarders are injured in the course of their sport.

Position Paper - Assembly Judiciary - AB 874.pdf

Assembly Bill 260, authored by Ted Lieu (D-Torrance), passed the Assembly Judiciary Committee today with a vote of 7-3.

The bill regulates certain mortgage loans, and parts of the bill are unnecessary while other parts are troubling. The bill statutorily creates a fiduciary duty from the mortgage broker to the client, which is unnecessary since that obligation is already established under case law. The other provisions of the bill may encourage abusive lawsuits. The bill creates additional duties and requirements and allows individual lawsuits plus the one-sided award of attorney's fees and costs to a prevailing plaintiff only.

The bill is very similar to AB 1830 of last year, which passed but was vetoed by the Governor. Assembly Bill 260 will now go to the Assembly floor.

Position Paper - Assembly Judiciary - AB 260.pdf

The Civil Justice Association of California opposes Assembly Bill 1196 (Blumenfield), a bill that would expand California's False Claims Act in a way that could unfairly expand government's lawsuit power against private citizens and businesses. The bill is set for hearing on April 14 in the Assembly Judiciary Committee.

The False Claims Act allows individuals and prosecutors to sue companies or contractors who overcharge or defraud the government. The California False Claims Act is already quite strict. It imposes strict penalties for making a false statement in filing a claim for money or services from the government. California law imposes a penalty of three times the amount of actual damages when a person has made a false claim. The false claimant is also liable for the costs of the lawsuit to recover the money and a civil penalty of up to $10,000. (Government Code Section 12651 (a).) The law allows an individual, called the qui tam plaintiff, to bring a lawsuit as a whistleblower on behalf of the government.

There are two primary provisions of concern in this bill. The first is that the bill expands the definition of "claim" for a False Claims Act to include "any record or statement used to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or any political subdivision."

This expansion is broad enough to include any overpayment to a contractor or company, even an inadvertent overpayment. In other words, under this bill, if the government mistakenly overpays a contractor, the contracting company can then be sued by an individual whistleblower. It is dangerous public policy to have the failure to return an overpayment the basis of a lawsuit, because the real decision-makers in the company might never have even found out about the overpayment.

The other main problem with the bill is that it un-does the statute of limitations for any government claim. The bill authorizes any additional claim on the part of the government to "relate back" to the filing by the qui tam plaintiff. This means that if the government takes over a lawsuit originally brought by an individual, the government's case is said to have been filed when the individual brought her case, for all possible claims the government might bring, not only the claims that the individual brought. This provision effectively nullifies any statute of limitations for government prosecutions of companies which contract with the government.

Statutes of limitations are important because they encourage fairness, they encourage claims to be resolved quickly, and they provide certainty to potential defendants after a set period of time.

Position Paper - Assembly Judiciary - AB 1196.pdf

The Civil Justice Association of California opposes Assembly Bill 1521, authored by Dave Jones (D-Sacramento), which is set for hearing on April 14 in the Assembly Health Committee.

The bill creates a fiduciary duty for brokers or salespeople of health insurance, owed to their client purchasers.

The problem with imposing a fiduciary duty on brokers of health insurance is that it will be relatively easy for a lawyer to allege that a duty was breached and a lawsuit should therefore follow. Additionally, this duty would apply equally to independent brokers and brokers who represent only one line of insurance. This creates a "Catch-22" situation for brokers who work for one particular company because they also owe a duty to their employer.

Position paper - Assembly Bill 1521.pdf

Plaintiffs' lawyers have started a new trend in class action lawsuits -- one that could further drive up retailers' cost of doing business.

In an op-ed in the San Francisco Chronicle, Daniel A. Rozansky and Scott M. Pearson, partners at Stroock & Stroock & Lavan LLP in Los Angeles, write that some lawyers have taken a California statute and started filing class action lawsuits against retailers asking for ZIP codes.

California prohibits businesses from requesting "personal identification information" when accepting a credit-card payment. Now some attorneys here are filing class action lawsuits alleging that retailers can't ask customers for any information at the time of a credit-card transaction -- not even ZIP codes.

The law requires merchants to pay penalties of $250 for the first violation and up to $1,000 for later ones -- even when customers can't prove they were harmed.

Rozansky and Pearson write: "Unless the Legislature fixes the statute to make clear what information retailers can ask for and when they can ask for it, lawyers seeking big fee awards will file these cases in the hope of forcing the retailers to settle."

The Assembly Judiciary Committee, by a 7 to 3 vote, failed to pass Assembly Bill 298. The bill, authored by Assemblyman Van Tran (in photo), would have given defendants in a class action lawsuit the same right plaintiffs have, the right to appeal the class certification decision.

Under California law, cases may only be appealed after they are over. When a class certification decision is denied, the case is over for the plaintiff, so the plaintiff may appeal. But when a class certification decision is granted, the case is not over for the defendant so the defendant may not yet appeal. The only way to appeal a class action certification is to take the case to trial and wait to lose at trial. Only then, hundreds of thousands of dollars later, could a defendant appeal the class certification decision. That situation ignores the reality of class actions, most of which settle after certification. Assembly Bill 298 would have allowed defendants to appeal that all-important decision.

This bill is particularly important now as California's economy continues to struggle. This change would be noticed nationally by decision makers and is something California could do to signal to business leaders that state leaders are willing to make changes to attract and maintain business here. California's legal system is currently ranked sixth from the bottom by national business leaders and is part of the reason the state is viewed as so unfriendly to business.

There are numerous examples of class action lawsuits of dubious merit -- a friend last week received a notice in the mail about a class action against a major high-end retailer for failing to have the proper font on a rewards club card notice. Many class action lawsuits are lawyer-driven, because the lawyers end up with millions while the class members, who they supposedly represent, get pennies or coupons.

For several examples of such lawsuits, see our earlier blog posts on a lawsuit against large retailers in which the attorneys requested $24 million while the class members received one cosmetic product or a separate suit against a clothes retailer in which the class members received a $10 gift card. (An innovative judge in the latter case decided that the attorney's fee would be paid with $125,000 worth of gift cards.)

A study by the California Judicial Council found that class action lawsuits are booming in California, but that only a small percentage (0.7%) ever go to trial. The study found a 63% increase in class action filings between 2000 and 2005 in the 12 courts reviewed. Employment class actions rose dramatically -- from 29 cases in 2000 to 120 cases in 2005, an overall increase of 313.8%!

CJAC conducted its own study of class action lawsuits and found results similar to the Judicial Council report. Our study revealed an increase in class action filings in the six largest counties in each year from 2004 to 2006. In those six counties, there were an average of more than four class action lawsuits filed each day the courthouses were open. Nearly half of those suits (47%) involved employment laws. The second largest group (36%) was in the consumer action category.

While there have been legitimate class action lawsuits -- particularly in the areas of civil rights and discrimination -- right now there are too many consumer class actions of dubious merit.

Eight other states and the federal system allow either automatic or discretionary appeal of the class certification decision. In California, all defendants could do about a class certification decision is use a writ -- which is discretionary and extraordinary. In other words, the judge can decide whether to grant the writ and hear the challenge to the certification decision. Writs are designed only for very unusual circumstances and are not frequently used or granted.

Assembly Bill 298 simply provides defendants what plaintiffs already have.

Click here to listen to Kim Stone testify on AB 298.

There are serious problems in the United States civil justice system and the discovery system, while not broken, is badly in need of attention.

That's according to the final report on civil litigation and discovery by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (click here to see the full report and recommendations.)

"In many jurisdictions, today's system takes too long and costs too much," the report stated. "Some deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test while some other cases of questionable merit and smaller cases are settled rather than tried because it costs too much to litigate them."

The report criticized the current "one size fits all" approach to civil discovery, stating that the discovery rules need to be modified to limit discovery and make it more proportional to each case being litigated, wrote Mark S. Spring, a partner in the Sacramento office of Carlton DiSante & Freudenberger LLP, on the firm's California Labor & Employment Law Blog.

The report also noted that electronic discovery needs a serious overhaul.

In California, Assembly Bill 5 (Noreen Evans) would modernize the state's discovery law by addressing issues related to e-discovery. The bill, which CJAC supports, is the same as last year's AB 926, which was vetoed by the Governor. Assembly Bill 5 has passed the Assembly and is now in the Senate.

Senate Bill 797, which CJAC opposes, would prohibit the manufacture, sale, or distribution of any baby bottle or container of infant formula containing bisphenol A (BPA). The bill was authored by Senator Fran Pavley (D-Santa Monica).

Such prohibitions may lead to additional unmerited litigation against manufacturers and users of BPA, and would inflame already-filed class action lawsuits. These class actions have been filed despite the fact that evidence of this chemical's danger to humans is slim and speculative. Bisphenol A has been used for decades as a lining to prevent food spoilage in containers.

The bill reminds us of the situation with silicone breast implants. After they were temporarily banned by the FDA, the number of lawsuits jumped from 150 in the 30 years prior to the ban to approximately 5,000 in the year after the ban. The implants were later determined to be safe, and thousands of lawsuits were eventually dismissed, although the lawsuits caused Dow Corning to file for bankruptcy.

This bill was introduced even though two bills were passed last year with the intent to have scientific experts -- rather than legislators -- make policy decisions about the safety or danger of chemicals. One bill, AB 1879 (Feuer, Blakeslee, and Huffman) allows the scientific experts in the Department of Toxic Substances Control to evaluate the safety or risk of chemicals in consumer products. Another bill, SB 509 (Simitian, Calderon) then creates an online, public Toxics Information Clearinghouse to publicize the safety or danger of chemicals found in everyday products. The purpose of those two bills was to allow scientists to evaluate the risks and benefits of certain chemicals, so that the mostly lay members of the legislature would not be faced with bills to ban one particular chemical.

This chemical-by-chemical and product-by-product approach is leading to an irrational patchwork quilt of chemical regulation. Smarter public policy would allow scientists and engineers to have a comprehensive approach to the use of chemicals and consumer safety.

Senate Bill 797 is similar to last year's SB 1713 (Migden), which CJAC opposed. The bill died on the Assembly Floor with only 27 votes, far shy of the 41 needed for passage. It was then amended and failed passage a second time.

A just-released California Judicial Council report says that class action lawsuits are booming in California, but that only a small percentage (0.7%) ever go to trial.

The study found a 63% increase in class action filings between 2000 and 2005 in the 12 courts reviewed. The increase was in contrast to the overall civil filings, which decreased during that same time period.

"Class action lawsuits -- though only a fraction of all civil filings in the trial courts -- have a disproportionate impact on the workload of the courts," the Judicial Council report stated. The report noted that because of the way civil cases are tracked, it has been very difficult to determine basic information, such as how many cases are filed each year, and what outcomes result.

A fact sheet summary is available here.

Employment cases represented 29.3% of all class action cases during the study period. Employment class actions rose dramatically -- from 29 cases in 2000 to 120 cases in 2005, an overall increase of 313.8%! The study notes that within the category of employment cases, 31.5% of the cases dealt with overtime issues. Meal and rest issues emerged as a statically significant force starting in 2003, which the study attributes to publicized cases against Wal-Mart and others regarding meal and rest violations.

Business tort cases represented 27.4% of the cases filed.

Of the cases, 31.9% were settled, 16.8% were dismissed with prejudice, and 12.6% were dismissed without prejudice. Being dismissed with prejudice means the plaintiff cannot re-file, but dismissed without prejudice means if the plaintiff fixes the problem that led to the dismissal, he may re-file the lawsuit. Only 0.7% of cases went to trial. As the study notes,

This analysis highlights another unique trait of class action litigation in that class action cases very rarely proceed through trial to a verdict. Only seven-tenths of one percent of cases in the sample ended in a trial verdict, and of those, only two cases reached trial with a certified class. This is considerably lower than the 8.6 average trial disposition rate for all unlimited civil cases in the study courts over the same time period.

(Report, P. 12).

This report illustrates why CJAC is urging state legislators to support its class action reform bill on the all-important class certification decision. Assembly Bill 298, authored by Van Tran, would give the defendants in a class action case the same rights the plaintiffs already have to appeal the class certification decision. Many cases settle immediately after class certification because defendants fear the large cost of going to trial and find it cheaper to settle whether the underlying claim has merit or not. If California law granted the defendant the same right to appeal the class certification decision, only valid class action cases could proceed. The San Diego Union-Tribune recently editorialized in favor of the bill.

We should note that CJAC conducted its own study of class action lawsuits and found results similar to the Judicial Council report. Our study revealed an increase in class action filings in the six largest counties in each year from 2004 to 2006. In those six counties, there were an average of more than four class action lawsuits filed each day the courthouses were open. Nearly half of those suits (47%) involved employment laws. The second largest group (36%) was in the consumer action category.

There may not be many lawyers in the state Legislature, but the percentage of incoming legislators with local government experience is high.

Of the 25 legislators new to Sacramento, 18 have local government experience. Nine served on city councils, five on county boards of supervisors, and six served on community college or school boards.

The legislators, all of whom are in the state Assembly, are:

Dan Logue (R-Linda) served on the Yuba County Board of Supervisors.

Mariko Yamada (D-Davis) served on the Yolo County Board of Supervisors.

Tom Ammiano (D-San Francisco) served on the San Francisco Board of Supervisors. He previously was elected to the San Francisco School Board.

Nancy Skinner (D-Berkeley) served on the East Bay Regional Park Board and the Berkeley City Council.

Joan Buchanan (D-Alamo) served on the San Ramon Valley School Board.

Jerry Hill (D-San Mateo) served as a San Mateo County Supervisor. Previously, he served on the San Mateo City Council.

Paul Fong (D-Cupertino) served as on the Foothill-De Anza Community College District Board of Trustees. He was also a political science professor at Evergreen Valley College.

Bill Berryhill (R-Ceres) served on the Ceres School Board.

Bill Monning (D-Carmel) was a professor at the Monterey College of Law and a Professor of International Negotiation and Conflict Resolution at the Monterey Institute of International Studies.

Connie Conway (R-Tulare) served on the Tulane County Board of Supervisors.

Steve Knight (R-Palmdale) served on the Palmdale City Council.

Isadore Hall (D-Compton) served on the Compton City Council.

Bonnie Lowenthal (D-Long Beach) served on the Long Beach City Council.

Curt Hagman (R-Chino Hills) served on the Chino Hills City Council.

Norma Torres (D-Pomona) served as Mayor of Pomona.

Jeff Miller (R-Corona) served on the Corona City Council.

Diane Harkey (R-Dana Point) served as Mayor of Dana Point.

Marty Block (D-San Diego) served on the San Diego Community College District Board of Trustees.

Manuel Perez (D-Coachella) served on the Coachella Valley School Board.

Assembly Bill 5, authored by Noreen Evans (D-Santa Rosa), on Tuesday passed the Assembly Judiciary Committee on the Consent Calendar. The consent calendar is for non-controversial bills and there is no bill presentation, debate, or questions about items on the consent calendar.

The bill is a re-do of last legislative session's AB 926 (Evans), which was vetoed by Governor Schwarzenegger despite having no opposition. Here is the Governor's veto message.

The Civil Justice Association of California supports the bill, which brings California law regarding discovery into the 21st century by addressing issues related to discovery of electronically stored information.

Assembly Bill 83, one of several Good Samaritan bills authored this legislative session, passed the Assembly Judiciary Committee unanimously on Tuesday and was amended to add an urgency clause.

The urgency clause requires a two-thirds vote and means that as soon as the bill passes and is signed into law, it will go into effect. Other bills go into effect on January 1 the year following passage.

The bill was authored by Mike Feuer (D-Los Angeles), the chair of the Assembly Judiciary Committee. The bill's principal coauthor, Senator John Benoit (R-Palm Desert), previously introduced SB 39 on the same subject.

This 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. The bill was authored in response to the December 2008 California Supreme Court decision case Van Horn v. Watson, which interpreted California Health and Safety Code Section 1799.102. The plain language of that section says, "No person who in good faith and not for compensation renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission." The Court interpreted that language to mean that no medical person who provides help, or no person who provides medical help, shall be liable for civil damages. A non-medical person who provides non medical help can be sued by the person she rescued.

In the Van Horn case, Lisa Torti was sued by Alexandra Van Horn for pulling her out of a car that Torti believed was about to explode. The implications for California law mean, for example, that if someone is a drowning victim in a lake, and is rescued by one person, and given CPR by another, the saved person can sue the person who pulled them out of the lake, but not the person who administered CPR. This awkward result has been criticized by The New York Times, Time Magazine, the Los Angeles Times and others.

Assembly Bill 83 is supported by CJAC, the trial lawyer's lobbying group, the California Association of Nonprofits, Citizens Against Lawsuit Abuse, the California Fire Chiefs Association, and the Los Angeles County Sheriff's Department. There was no registered opposition at the hearing. It is not entirely without detractors, though. Michael Newman, in an op-ed in the Daily Journal, notes that AB 83 only provides qualified immunity to Good Samaritans -- that is, immunity except for gross negligence or willful or wanton misconduct, whereas AB 90, authored by Assembly Member Anthony Adams (R-Hesperia) would provide unqualified immunity.

The bill will next go to the Assembly Floor for a vote.

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.

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.

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.

The members of the Senate Judiciary Committee have been announced. Senator Ellen Corbett remains the chair and Senator Tom Harman the Vice-Chair. The committee makeup remains three Democrats and two Republicans, although three members have changed.

• Ellen Corbett (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.

• Tom Harman (R-Orange) graduated from Kansas State University and from Loyola of Los Angeles School of Law.

• Dean Florez (D-Shafter) is new to the Senate Judiciary Committee. He graduated from University of California, Los Angeles and has an MBA from Harvard. He is not a lawyer.

• Mark Leno (D-San Francisco) is new to the Senate Judiciary Committee. He graduated from the American College of Jerusalem. He is not a lawyer.

• Mimi Walters (R-Laguna Nigel) is new to the Senate Judiciary Committee. She graduated from University of California, Los Angeles. She is not a lawyer.

The Members of the Assembly Judiciary Committee have been announced. While some of the members have changed, the overall makeup remains seven Democrats and three Republicans.

The Chair is Mike Feuer (D-Los Angeles), who graduated from Harvard and Harvard Law School. Vice Chair is Van Tran (R-Costa Mesa), who graduated from UC Irvine and Hamlin University Law School.

Democrat Members:

• Julia Brownley (D-Santa Monica) is not a lawyer. She graduated from George Washington University and has an MBA from American University.

• Noreen Evans (D-Santa Rosa) graduated from California State University, Sacramento and McGeorge School of Law. She practiced civil law prior to entering government service.

• Dave Jones (D-Sacramento) graduated from DePauw University, and from Harvard Law School. The former Chair of the Judiciary Committee, Jones now chairs the Assembly Health Committee. He has also announced that he plans to run for state insurance commissioner in 2010.

• Paul Krekorian (D-Burbank) graduated from University of Southern California and UC Berkeley School of Law.

• Ted Lieu (D-Torrance) graduated from Stanford University and Georgetown Law School.

• Bill Monning (D-Monterey) graduated from UC Berkeley and University of San Francisco School of Law.

Republican Members:

• Steve Knight (R-Palmdale) is not a lawyer. He graduated from Palmdale High School.

• Jim Nielsen (R-Redding) is not a lawyer. He graduated from California State University, Fresno. In 1978, Nielsen was elected to his first of three terms in the State Senate, where he served as Senate Republican Leader from 1983-1987.

You see a car crash on the side of the road. You think the car might explode. You see a person inside. Should you remove the person? If you do, and inadvertently cause injury, can you be sued?

In California, the answer depends on if you are a medical professional or not. Medical Professionals -- doctors, nurses and emergency medical technicians -- are specifically protected under the Good Samaritan law in California's Health and Safety Code Section 1799.102.

But last month, the California Supreme Court said non-medical Good Samaritans are not protected from lawsuits if they inadvertently or negligently cause harm. In the case of Van Horn v. Watson, the court held that non-medical Good Samaritans are not entitled to liability protection when there is injury as a result of their actions. In that case, Lisa Torti moved Alexa Van Horn out of a car, thinking the car would explode and burn her. Alexa Van Horn alleges that the movement caused her subsequent paralysis.

A quick look at the situation would cause many to conclude (as the New York Times did) that the majority should have applied more common sense and less legal parsing. However, the liability immunity code section at issue is steeped in "medical" references that do back up the opinion. What was missing in the current law is "rescue and care" ("reasonably provided") language, which the Legislature can readily supply to subdue any ambiguity. This change would mesh with the existing common law rule which shields any person who acts with due care in coming to the aid of another.

The California Supreme Court's decision has already led to the introduction of three bills in the legislature. Democrat Mike Feuer, the incoming chair of the Assembly Judiciary Committee, introduced AB 83, a bill that declares the intent of the legislature to look at the case. Republican John Benoit introduced SB 39, which would extend the liability protection to non-medical Good Samaritans as well. And Anthony Adams, R-Hesperia, has authored a bill, AB 90 that would extend the same legal protection to any Good Samaritan offering "medical or non-medical" emergency care.

The New York Times has editorialized against the California Supreme Court decision, saying it was " a disturbingly narrow interpretation that could discourage future good Samaritans from providing help out of fear of being sued." The Times continues, "The implications of the ruling are disturbing. When people see an accident, the law should not discourage them from offering the best help they can. Now, however, Californians will have reason to hesitate. If they offer nonmedical help -- like pulling someone out of a burning house, or rescuing a drowning person -- they may be putting their life savings at risk."

Read California's Health and Safety Code Section 1799.102 by going to http://www.leginfo.ca.gov/. Click on "California Law," then check "Health and Safety Code" and search for section 1799.102.

Senate President Pro Tem Darrell Steinberg wants to cap at 15 the number of bills state legislators can introduce this year, in an effort to keep them focused on the budget.

"The emphasis this year needs to be less on bills and a whole lot more on fixing California's fiscal situation," he told the Sacramento Bee's Capitol Alert.

Currently there is no limit in either house on the number of bills a lawmaker can introduce in a single year. The Senate limits members to 50 bills over the two-year session, while the Assembly allows 40 bills over the two-year session.

Assembly Speaker Karen Bass hasn't signed on to the plan yet, according to the paper. Steinberg told the Bee it is not final, though he has discussed it with members of his caucus.

California residents are facing rising unemployment figures and weak job growth. The state was listed in a survey as the second-toughest state in the nation for small businesses. And legislators continue budget debates, as the state faces a $41-billion deficit through June 30, 2010.

But "tangible legislation that will make California a more attractive place to do business is bound to result in more jobs sooner," John H. Sullivan, president of the Civil Justice Association of California (CJAC), wrote in letters to Governor Arnold Schwarzenegger and legislative leaders. Economic Recovery Letter.pdf

A number of simple statutory changes in the civil justice area -- from correcting a disparity in class action law to clarifying employee meal and rest break rules -- could help to bring economic recovery about sooner.

Sullivan also penned an op-ed on the topic for Capitol Weekly.

Assembly Republican Leader Mike Villines (R-Clovis) announced his leadership team:

• Caucus Chair: Cameron Smyth (R-Santa Clarita)
• Floor Manager: Sam Blakeslee (R-San Luis Obispo)
• Assistant Leaders: Roger Niello (R-Fair Oaks); Bill Emmerson (R-Redlands); Ted Gaines (R-Roseville); Van Tran (R-Costa Mesa); Martin Garrick (R-Carlsbad)
• Chief Whips: Anthony Adams (R-Hesperia); Chuck DeVore (R-Irvine); Jean Fuller (R-Bakersfield)
• Whips: Nathan Fletcher (R-San Diego); Jeff Miller (R-Corona); Jim Nielsen (R-Redding)

Senate Pro Tem Darrell Steinberg -- in his second day on the job -- announced the Committee Chairs for 2009.

They are:

• Sen. Christine Kehoe (D-San Diego): Senate Appropriations Committee
• Sen. Ron Calderon (D-Montebello): Senate Banking & Finance Committee
• Sen. Denise Ducheny (D-San Diego): Senate Budget and Fiscal Review Committee
• Sen. Gloria Negrete-McLeod (D-Chino): Senate Business, Professions & Economic Development Committee
• Sen. Gloria Romero (D-East Los Angeles): Senate Education Committee
• Sen. Loni Hancock (D-Berkley): Senate Elections, Reapportionment & Constitutional Amendments Committee
• Sen. Alex Padilla (D-San Fernando Valley): Senate Energy, Utilities and Communications Committee
• Sen. Joe Simitian (D-Palo Alto): Senate Environmental Quality Committee
• Sen. Roderick Wright (D-Inglewood) Senate Governmental Organization Committee
• Sen. Elaine Alquist (D-Santa Clara) Senate Health Committee
• Sen. Mark Leno (D-San Francisco): Senate Public Safety Committee
• Sen. Ellen Corbett (D-San Leandro): Senate Judiciary Committee
• Sen. Fran Pavley (D-Augora Hills) Senate Natural Resources & Water Committee
• Sen. Alan Lowenthal (D-Long Beach) Senate Transportation and Housing Committee

Assembly Bill 5, authored by Noreen Evans (D-Napa), would extend California's discovery rules to cover electronic discovery.

The bill, which CJAC supports, contains the same language as last year's AB 926, which passed both houses without opposition, but was vetoed, along with many others, by the Governor for not being sufficiently important.

The bill was one of the few to be introduced in December, and is available in full here.

Sacramento Democrat and incoming Senate Pro Tem Darrell Steinberg is mulling who will serve as chairs of the state Senate's powerful committees -- positions that "will set the political and policy landscape in the Senate for the next two years," according to the Sacramento Bee.

The Bee speculates about who will ascend to fill the chair positions.

The official announcements are not expected for another two weeks.

Current California law requires that if someone has had improper access to your name and credit card number, you must be notified of that fact so you can pay attention and make sure no one buys things that you end up paying for or opens credit card accounts in your name.

But state Assembly Member Dave Jones seems to think that California law is not tough enough. In an informational hearing today on "Disclosure Requirements Under California's Breach Notification Law," Jones was particularly concerned about a handful of retailers, in possible violation of current law, who did not disclose a data breach to consumers even though criminals were indicted for data breach against their stores. Assembly Members Paul Krekorian (D-Burbank) and Rick Keene (R-Chico) also attended the hearing.

One witness from a consumer rights group posited possible solutions to the supposed problem, including strengthening California's laws to match the toughest provisions in all other states. One such provision would include allowing private individual lawsuits for failure to notify for a breach, with double or treble damages, or with liquidated damages -- meaning consumers need not suffered a loss. This would bring back a piece of the "private right of action"/no loss need be shown litigation that was largely stopped by California voters when they approved Proposition 64 four years ago.

Such provisions do more to encourage lawsuits than to protect consumers. We hope that whatever bill arises as a result of this hearing focuses on actually protecting consumers rather than enriching lawyers.

Jones is in his final days as chair of the Assembly Judiciary Committee. He will next serve as chair of the Assembly Health Committee, and Democratic member Mike Feuer will become chair.

Think lift tickets are expensive now? Some resorts are up to $79 a day. Prices may get higher if the California legislature imposes additional liability on ski resorts.

Last week, the Assembly Judiciary Committee held an informational hearing on "Ski and Snowboard Health, Safety and Liability Standards." Usually, informational hearings are precursors to bills. The California legislature convenes its 2009 Session in early January 2009, and legislators have until the end of February to introduce bills. We expect to see a bill relating to ski industry liability. Most likely, the bill will increase liability for ski resorts. If that's the case, you can expect to see even higher lift ticket prices.

Currently, skiing is considered by law to be a risky endeavor and many "mountains" are somewhat protected from expensive lawsuits by the legal doctrine of "assumed risk" as well as by contractual liability waivers, usually found on the back of the lift ticket.

Assembly Bill 1945, the health care rescission bill vetoed by Governor Arnold Schwarzenegger, did not contain real consumer protections as its author claimed, Cindy Ehnes, director of the state Department of Managed Health Care (DMHC), wrote in an October commentary in Capitol Weekly.

The exclusion of basic consumer protections raised concerns that the bill wasn't about protecting consumers at all, but instead would protect the fees that plaintiffs' lawyers could collect by suing health plans, she wrote.

Ehnes noted that the Civil Justice Association of California opposed the bill after trial lawyers "significantly changed AB 1945 from its original intent." She quoted CJAC's argument that the revised bill would have taken the final rescission decision away from an independent third party review panel and would have been another way for litigation to needlessly drain away health care dollars.

Also, Ehnes wrote, for the past two years, Schwarzenegger's DMHC "has fought for -- and won -- the important changes needed within the health insurance industry to protect consumers.

"However, the Governor simply could not sign a bill that would not offer even close to the same level of consumer protections as gained by the DMHC, and would also raise costs and limit access to individual health coverage."

An op-ed by John Sullivan, president of the Civil Justice Association of California (CJAC), published today in Sacramento's Capitol Weekly outlines CJAC's concerns with a dangerous bill that would increase liability for manufacturers of prescription medicine and even possibly decrease patient safety.

Assembly Bill 2690 would repeal a long-standing rule that recognizes the warnings which accompany medicines and medical devices are directed to physicians, who are best suited to evaluate the risks and benefits associated with such medicines and make an informed decision for their patients.

The bill, now on the Assembly Floor second reading file, would bring a new duty to prescription drug manufacturers to directly warn consumers the same way they do doctors about possible side effects. Personal injury lawyers -- not a health care or patient organization -- are behind the measure, led by their statewide group.

Sullivan explains what would happen if the bill becomes law: "Some warnings ... might cause patients to overreact, to stop taking their prescriptions or quit following their doctor's orders. We'd see lawsuits over that, too. Litigation spawned by AB 2690 could cause some useful drugs to be pulled off the market altogether."

Learn more about AB 2690 by going to www.cjac.org and clicking on "Legislative Center."