CA Supreme Court Rules Defendants Who Win ADA Lawsuits Can Receive Attorney's Fees
Posted on 12/18/2012 @ 03:00 PM
A major California Supreme Court ruling was issued yesterday in which the Court found that plaintiffs who lose disabled access lawsuits are liable for the defendant's attorney's fees.
In Jankey v. Lee, the plaintiff sued the owner of K&D Market, a small grocery store in San Francisco's Mission District, and argued that California law requiring fee awards to whomever wins was preempted by the federal Americans with Disabilities Act. The Supreme Court ruled that California law makes an award of fees to any prevailing party mandatory, and "the ADA does not preempt this part of the state's attorney fee scheme for disability access suits." This allows K&D Market to receive $118,458 in attorney's fees.
One-sided attorney's fees have been an enormous factor in the proliferation of disability access claims in California. Defendants had no incentive to fight a claim in court because even if they prevailed they would still have to pay their own attorney's fees. So, it was always cheaper to settle.
We applaud the Supreme Court for a great decision. You can read the ruling here.
Election Wrap-Up: Part 2
Posted on 12/03/2012 @ 03:00 PM
In our previous election wrap-up we noted there were over three million uncounted absentee and provisional ballots statewide. Sure enough, those ballots ended up playing a pivotal role in a couple state legislative races and the election turned out even better for Democrats than initially thought.
The Democrats picked up another seat in the State Senate after Cathleen Galgiani pulled off a major comeback in SD 5 to defeat Bill Berryhill. The day after the election she trailed by 4,000 votes but she steadily cut in to that lead in the days that followed and ended up winning by almost 3,000 votes.
This gives Democrats 29 seats in the Senate, with the Republicans now holding 11. The Democrats only needed 27 for a 2/3 super-majority (which is required to raise taxes, override gubernatorial vetoes, along with some other actions).
In the Assembly, the Democrats not only held on to the 54 seats they were leading in the day after the election, but added a 55th seat in another huge upset in what was supposed to be a Republican seat. AD 36 (includes portions of Los Angeles, San Bernardino, and Kern Counties) was expected to go to Republican Ron Smith but yesterday, the final day of counting, Democrat Steve Fox took a 145 vote lead for the win. A recount may still occur.
The Democrats only needed 54 seats to reach a 2/3 super-majority in the Assembly, so they now have a one-seat cushion. Republicans are left with 25 seats.
This marks the first time since the 1880s that the Democrats have a 2/3 majority in both houses of the Legislature.
Also, in two key Democrat v. Democrat races, we are happy to report that both Richard Bloom and Marc Levine held on to their leads over trial lawyer-backed incumbents! Bloom, Mayor of Santa Monica, won by 1,705 votes over Betsy Butler in AD 50. Levine, a San Rafael City Councilmember, beat Michael Allen by 3,817 votes in AD 10. Congrats to both of them!
Posted on 11/09/2012 @ 12:00 PM
With election day behind us, here is an update on where we stand with ballot measures and state legislative races. While it is important to note that over three million ballots statewide have not yet been processed, many important contests have been decided.
Proposition 37 has thankfully been defeated, earning only 47% of the vote. This initiative would have made California the only state in the nation to require labeling of genetically modified food and would have been enforced through private litigation. The "No" side made the threat of lawsuits a key piece of the campaign in the final weeks, and the "Yes" campaign was overwhelmed financially. The defeat of Prop 37 is a huge win for California business, particularly the food industry. Thanks to all who helped!
As far as other high profile initiatives, Governor Brown's tax measure - Proposition 30 - passed with 53.9% of the vote, preventing trigger cuts to the state budget that would have happened if the initiative failed.
Additionally, Proposition 32 failed, earning only 43.9% of the vote. This controversial measure would have prevented payroll deductions for political dues without an employee's written consent, in addition to banning direct contributions from corporations and unions to candidates. Unions made defeating Prop 32 their top priority and spent over $60 million to ensure that happened.
The Democrats appear to have reached a 2/3 super majority in both the State Senate and State Assembly (a 2/3 vote of the Legislature is required to raise taxes, override gubernatorial vetoes, along with some other actions).
In the Senate, the Democrats needed to win one of three competitive seats to reach 2/3, and they won two. In SD 27, current Senator Fran Pavley defeated Republican Todd Zink by five points, and in SD 31 retired Air Force Colonel Richard Roth defeated Republican Assemblymember Jeff Miller by seven points.
At this point the Republicans are winning in SD 5, where Assemblymember Bill Berryhill is beating Assemblymember Cathleen Galgiani by two points.
Assuming Berryhill holds on to his lead, going into 2013 the Democrats will have 28 seats in the Senate and Republicans would have 12.
On the Assembly side, it looks as though the Democrats have pulled off quite a surprise by winning six competitive seats, which would get them to the 54 votes they need to reach a 2/3 majority.
Many expected the Democrats could get within one or two seats of 2/3 this year, but they were not expected to win 54 seats. The surprise came in AD 65 in Orange County, where Fullerton Mayor Sharon Quirk-Silva is leading Republican Assemblymember Chris Norby by just over 1,200 votes.
Another Assembly race that is still very close is AD 32, where Bakersfield City Councilmember Rudy Salas on the Democratic side is clinging to a 268 vote lead over Republican Pedro Rios.
If the Democrats hold on to their leads in these two districts, they would have 54 seats in the Assembly and the Republicans would have 26.
Top Two Primary / Redistricting
On another note, we are excited about what will hopefully remain positive results from the new top two primary and independent redistricting process, both of which went into effect this election cycle.
Two incumbents that have been strong allies of the plaintiffs' bar, Assemblymembers Betsy Butler and Michael Allen, were forced to move into new districts to run for re-election in 2012, and they ended up facing viable challengers in those districts who were also Democrats.
At the moment, Betsy Butler is trailing Santa Monica Mayor Richard Bloom by 218 votes in AD 50, and Michael Allen is trailing San Rafael City Councilmember Marc Levine by 1,663 votes in AD 10. If Bloom and Levine are able to hold on, the plaintiffs' bar will have lost two of their strongest allies in the Legislature, and it would not have been possible without the top two primary and independent redistricting.
In other key Democrat v. Democrat races, there were big wins for Assemblymember Jerry Hill in SD 13, who defeated former Assemblymember Sally Lieber by over 30 points, and Raul Bocanegra in AD 39, who beat Los Angeles City Councilmember Richard Alarcon by 17 points. CJAC strongly supported both Hill and Bocanegra.
Altogether, CJAC supported 20 winning candidates in open seats this year. We offer a sincere congratulations to each of them!
California continues to become more and more Democratic, and it appears this has resulted in a Legislature that is now under complete control by Democrats. This means we must make more Democrats understand the need for legal reform in California. Fortunately, the top two primary provides an avenue to elect more Democrats who appreciate the impact of lawsuit abuse, and we are seeing some success with this already.
What New Report on Court Caseloads Says...and Does Not Say
Posted on 10/31/2012 @ 01:00 PM
Last week a report on state court caseloads was released by the Court Statistics Project, a joint effort of the Conference of State Court Administrators, the Bureau of Justice Statistics, and the National Center for State Courts.
Included among the report's findings is that the total incoming civil caseload across all states is up 20% since 2001. Additionally California courts have been unable to clear cases from their dockets in a timely manner. The pending caseloads for civil and criminal cases continues to grow, and in fact the state's clearance rate for criminal cases was the lowest in the nation in 2010. This is a sad reminder that this growing caseload combined with unprecedented court budget cuts will only mean longer and longer delays in resolving disputes.
These court delays mean businesses must spend great amounts of time and money on cases where they are wrongfully sued – meaning they could eventually prevail on a demurer, or win a summary judgment motion - but only after spending months or years in litigation and thousands (or hundreds of thousands) of dollars on their own defense attorneys.
The plaintiffs' bar, meanwhile, is trying to claim that the report shows California does not suffer from excessive litigation (the report found that in 2010 the number of civil cases filed per capita in California was below the national median).
There are a few things we must note on this point.
First, the report doesn’t tell you anything about the cases. According to the report there were still 1,235,421 civil cases filed in California in 2010 – more than any other state. The state-by-state comparison doesn't say anything about the scale of the cases, the dollar amounts involved, the impact they had, or how many could be considered frivolous.
Second, the report looks only at 2010 - just a one-year snapshot of filings.
Finally, this statistic doesn't include settlements that are reached prior to an actual filing - something we know happens regularly with ADA cases, for example.
We are very appreciative of the work the Court Statistics Project is doing to shine a light on the state of our court systems and we hope others will pay careful attention to what their work says, and what it does not say.
You can read the full report here.
CJAC Applauds Governor's Actions
Posted on 10/01/2012 @ 01:00 PM
Governor Jerry Brown had until midnight last night to sign or veto all the bills remaining on his desk, and we are happy to report that the results were great for CJAC. Late last night Brown vetoed the one bill CJAC asked him to veto and earlier this month he signed two CJAC-supported bills.
Altogether, 30 of the 31 bills we opposed this year were either killed or adequately amended. CJAC's one veto request was for AB 2346, authored by Assemblymember Betsy Butler (D-Los Angeles). The bill would have created major litigation traps for farmers by creating new ways to sue over working conditions for farm employees, even mere technical violations. The requirements would be enforceable by private lawsuits with lucrative awards of liquidated damages and only plaintiffs could get their attorney fees reimbursed.
In the Governor's veto message, which you can read here, he called AB 2346 a "flawed" bill that would "single out agricultural employers and burden the courts with private lawsuits." We couldn't agree more.
We were very pleased to see the Governor sign SB 1186 - the most serious attempt at ADA litigation reform to ever come out of the Legislature - and CJAC-sponsored AB 2274, which closes a loophole in the vexatious litigant statute.
We are cautiously optimistic about SB 1186. While it does not go as far as we would have preferred, there should hopefully be some relief provided by the restrictions the bill has created on plaintiffs' lawyers that want to exploit the ADA and the reductions in penalties for property owners that are making good faith efforts to comply. SB 1186 went into effect immediately upon being signed and we will be closely monitoring how it works in practice.
As for AB 2274 regarding vexatious litigants, we are grateful to Assemblymember Ricardo Lara (D-Bell Gardens) for authoring the bill. A vexatious litigant is someone who is suing solely for the purpose of harassment without even hiring an attorney. AB 2274 will prevent vexatious litigants from getting around the current restrictions by hiring an attorney just for the initial filing of a lawsuit. They will now have to retain an attorney throughout the entire case.
The 2011-12 legislative session is now officially over and we are pleased to have helped keep California's legal climate from getting worse while making some incremental progress with ADA and vexatious litigant reform. Thank you to all of our members and partners who helped make it happen!