CJAC: Civil Justice Association of California

ADA Reform Bills Abound

By Todd Roberson on 03/06/2012 @ 11:00 AM

Tags: Americans with Disabilities Act

There is no shortage of proposals in the California Legislature this year to change the way the Americans with Disabilities Act (ADA) is enforced in our state, a reflection of the fact that the problem of abusive ADA lawsuits is not getting any better. Fully understanding and complying with both the federal ADA and the state disabled access regulation continues to be a challenge for too many small business owners, and it is clear that more needs to be done to reduce the number of lawsuits while continuing to increase access for the disabled.

At this point, the following bills from legislators across the state and from both parties have been identified as attempts to address this problem:

AB 1610 - Don Wagner (R-Irvine) - Provides for notice of an alleged ADA violation and provides 120 days to fix the violations before a lawsuit can be filed.

AB 1878 - Beth Gaines (R-Roseville) - Provides for notice of an alleged ADA violation and provides 120 days to fix the violations before a lawsuit can be filed.

AB 1879 - Beth Gaines (R-Roseville) - Requires the State Architect to prepare a report containing all federal and state disabled access regulations and note any state regulations that are in direct conflict with federal regulations.

AB 1994 - Alyson Huber (D-El Dorado Hills) - Requires all complaints to be filed with the county planning department where an alleged disabled access violation has occurred and that the county work with a certified access specialist to develop a compliance schedule for remedying violations.

AB 2282 - Bill Berryhill (R-Ceres) - Currently a spot bill relating to ADA lawsuits (a placeholder that may be amended later into a substantive bill).

AB 2325 - Chris Norby (R-Fullerton) - Provides for notice of an alleged ADA violation and provides 120 days to fix the violations before a lawsuit can be filed.

SB 1186 - Robert Dutton (R-Rancho Cucamonga) - Provides for notice of an alleged ADA violation and provides 90 days to fix the violations before a lawsuit can be filed.

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Plaintiffs' Lawyers Aim to Overturn Supreme Court Ruling on Medical Damages

By Todd Roberson on 02/27/2012 @ 02:00 PM

Tags: Legislature, Plaintiffs Lawyers

As expected, a plaintiffs' lawyer-backed bill to undo last year's California Supreme Court ruling in Howell v. Hamilton Meats has been introduced by Senate President Pro Tempore Darrell Steinberg (D-Sacramento). The bill, SB 1528, was introduced on Friday and would allow an injured plaintiff to recover the costs of medical services "without regard to the amount actually paid."

In its ruling last August, which you can read more about here, the Supreme Court held that a plaintiff may only collect as damages the amount that was actually paid by insurers for medical treatment rather than the retail rate that medical providers would charge for that treatment.

Medical providers establish negotiated rates of reimbursement with insurance companies that are lower than what they would charge an uninsured patient who receives medical treatment.

In the Howell v. Hamilton Meats case, the plaintiff had health insurance for which a negotiated rate was already agreed upon, the medical providers were fully reimbursed at the negotiated rate, and the plaintiff was compensated for all out-of-pocket costs.

Thus, the Court stated that it is not appropriate to “expand the scope of economic damages to include expenses the plaintiff never incurred.”

Plaintiffs' lawyers, however, want the higher rate used to determine damages to increase the size of the settlements from which they get paid.

Look out for a major a battle this year over SB 1528...

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Big Win for Arbitration in U.S. Supreme Court

By Todd Roberson on 02/22/2012 @ 12:00 PM

Tags: Arbitration

The U.S. Supreme Court kept up its defense of arbitration yesterday, finding that a West Virginia court's attempt to prohibit pre-dispute arbitration of claims against nursing homes is preempted by the Federal Arbitration Act (FAA). The case, Marmet Health Center v. Brown et al., dealt with three negligence suits brought against nursing homes in West Virginia. The Supreme Court ruled that West Virginia's prohibition against pre-dispute agreements to arbitrate personal injury or wrongful death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, which is contrary to the terms and coverage of the FAA.

We applaud the Supreme Court for standing up for arbitration as a fair, effective, quicker, and cheaper way to settle disputes than civil trials. And in case there is anyone in California interested in prohibiting pre-dispute arbitration agreements in our state, this ruling makes clear that you shouldn't bother.

Read more about the ruling here.

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$50,000 in Attorneys Fees Over a $261 Dispute?

By Todd Roberson on 02/14/2012 @ 08:00 AM

Tags: Attorneys Fees

In last Thursday's edition of the Daily Journal (Feb 9th), Los Angeles attorneys Joseph Lipner and BJ Ard take a look at significant civil law developments in the California Supreme Court over the past year ("The Final Word: Civil Law Development in the State Supreme Court").

We have to point out one that we are disappointed with.

In Serrano v. Stefan Merli Plastering Co., the Court ruled that a court reporting service that lost a dispute over a $261 fee charged for expediting a deposition transcript is liable for up to $50,000 in attorneys fees!

While the appellate court accepted the challenge to the $261 fee, it rejected the attorneys fee claims, as the trial court had.

The Supreme Court unfortunately ruled in a 6-1 decision that attorneys fees were authorized when an action has enforced "an important right affecting the public interest."

We're going to have to say that a pay day of $50,000 over a $261 fee which may or may not have been improper seems a bit out of whack.

You can find the column by Lipner and Ard at www.dailyjournal.com (subscription required).

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Daily Journal Column on Prop. 65: Reining in the Bounty Hunters

By Todd Roberson on 02/06/2012 @ 10:30 AM

Tags: Proposition 65

A must-read column by Chapman University Law Professor Anthony Caso on Proposition 65 was printed in last Wednesday's issue of the Daily Journal.

Caso explains how California Attorney General Kamala Harris recently filed objections to an "outrageously high proposed settlement," and offers cautious optimism that her objections may be a first step towards reform.

He reminds us that between 2000 and 2010, 68% of the money paid out in settlements (or $90 million) has been for attorney fees. Furthermore, the practice of attorneys suing businesses and then demanding that payment be made to them directly or to another organization "in lieu" of a civil penalty has steered Prop. 65 way off course.

The intent of Prop. 65 was for the bulk of payments to be given to the state for enforcement efforts, not diverted to private organizations who are often front groups for plaintiffs' attorneys.

Harris should be commended for her objections in this most recent case, and must continue to "scrutinize proposed settlements," as Caso writes.

You can read the column at www.dailyjournal.com (subscription required).

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