Amicus Briefs Filed
Amicus curiae is a legal Latin phrase, literally translated as “friend of the court.” It is the name for a brief filed with the court by someone who is not a party to the case.
With Fred Hiestand at the helm of CJAC’s Appellate Program, CJAC regularly files such “friend of the court” briefs on issues of concern to its broad membership of businesses, professional associations, and local governments, in an effort to offer information and assist the court in deciding particular cases.
Recently Filed Amicus Briefs
Richey v. AutoNation, Inc. - California Supreme Court - 8/8/13: The issue: where parties to an employment contract agree to submit all future disputes between them to binding arbitration and specify that the arbitrator shall decide those disputes based solely upon “controlling law,” but say nothing in that contract about judicially appealing the arbitrator’s decision or the standard of review applicable to any such appeal, may an arbitral decision pursuant to that agreement be judicially vacated on the ground that its exoneration of the employer from liability under the California Family Rights Act due to the “honest belief” defense is “clearly erroneous” as a matter of law?
CJAC contends that the "honest belief" defense to CFRA liability is NOT clearly erroneous as a matter of law because numerous federal opinions are in conflict as to its viability under the Federal Medical Leave Act and no California case (save this one) has ruled on its applicability to the CFRA. Moreover, sound law and public policy favor the finality of private, contractual arbitration and countenance against judicial set asides of arbitration awards unless the parties thereto specifically and clearly consent to that authority. (Richey v. AutoNation, Inc., S207536, brief filed on 8/8/13)
Iskanian v. CLS Transportation Los Angeles - California Supreme Court - 5/13/13 - The issue in this case is whether the Federal Arbitration Act (FAA) require enforcement of a pre-dispute employment arbitration agreement where the parties to it waive their statutory right to judicially prosecute representative claims under California’s Private Attorney General Act.
CJAC and CalChamber argue the FAA was enacted to reverse longstanding judicial hostility to arbitration agreements and place them upon the same footing as other contracts. It requires enforcement of arbitration agreements according to their terms for any activity within the broad reach of the commerce clause unless Congress expressly and clearly specifies an exception to matters coming within its ambit. State laws that impinge on the enforcement of arbitration agreements or treat them differently from other contracts conflict with and are preempted by the FAA. This includes state statutes that facially, or as interpreted, bar submission of certain subjects to arbitration because the parties to the agreement, as here, waive their rights to prosecute their claims on a class or representative basis.
In this case, the parties mutually agreed to resolve all future disputes between them regarding employment by arbitration, waiving their rights to do so on a “class” or “representative” basis. This is a permissible waiver that cannot, consistent with the FAA, be overridden by state statutes that confer on the parties a right to pursue claims in the form of “class” or “representative” actions. When, as here, state law prohibits outright the arbitration of a particular type of claim, that bar is displaced by the FAA. (Iskanian v. CLS Transportation Los Angeles, S204032, brief filed on 5/13/13)
Goldman v. Sunbridge Healthcare - Third Appellate District - 2/5/13: The issue in this case is whether nursing home arbitration agreements challenged on state unconscionability grounds are valid and enforceable because of the preemptive effect of the FAA as limned by the Supreme Court opinion in AT&T Mobility v. Concepcion and its progeny.
CJAC argues that the parties to the arbitration agreements at issue expressly agreed that the FAA shall govern the agreements interpretation and application. They also agreed to a broad delegation of authority to the arbitrator to decide all questions regarding the validity and enforceability of the arbitration contracts, including their scope and preemptive force and whether they are unconscionable. A number of recent Supreme Court and federal appellate opinions make clear that the disputes between the parties in this case should be resolved by arbitration. (Goldman v. Sunbridge Healthcare, C069970, brief filed on 2/5/13)
Sanchez v. Valencia Holding Company, LLC - California Supreme Court - 10/1/12: This issue in this case is whether the Federal Arbitration Act, as outlined by AT&T v. Concepcion, bars use of state unconscionability law to invalidate an arbitration agreement in a retail automobile sales contract because it (1) permits an internal arbitral appeal process to a three-person panel for extreme outlier results, (2) requires the losing party to advance costs for an internal arbitral appeal, and (3) excludes from arbitration self-help relief.
CJAC and Cal Chamber argue that the appellate court's decision here should be reversed because the FAA preempts use of state law on unconscionable contracts to stand as an obstacle to the execution of private, binding arbitration agreements. Merely requiring "procedures incompatible with arbitration" violates the FAA; and any procedure that interferes with a "streamlined" arbitration proceeding is prohibited. The arbitration agreement at issue clearly comports with federal law; and, to the extent its provisions conflict with state law defining unconscionable contracts, state law must yield to the broad preemptive sweep of the FAA. However, the specific provisions of this arbitration agreement are neither procedurally nor substantively unconscionable. They meet the Concepcion standard for providing a "streamlined procedure tailored to the type of dispute." (Sanchez v. Valencia Holding Company, LLC, S199119, Brief filed on 10/1/12)
Pfeifer v. John Crane, Inc. - Second Appellate District - 4/10/13: The issue in this asbestos case is whether it is reversible error for the trial court to refuse to give the sophisticated user/purchaser instruction requested by the defendant manufacturer of asbestos containing gaskets and packing it made for the U.S. Navy (according to the Navy’s specifications) in a product liability suit by a former Navy employee who, while working for the Navy, contracted mesothelioma.
CJAC argues that narrowly defining the "sophisticated user" doctrine to render it inapplicable in most situations, as the trial court did here, cannot help but foster more litigation over who is to pay for asbestos related injuries with all its accompanying detriment to the administration of justice. (Pfeifer v. John Crane, Inc., B232315, brief filed on 4/10/13)
Woodard v. Crane Co. - Second Appellate District - 6/21/11: This is an asbestos case concerning the scope and application of the “component parts” defense in product liability law. Specifically, should component parts manufacturers be liable for failure to warn when the component is not inherently dangerous and the manufacturer had no role in its end design, even if it was foreseeable the component could, once outside the manufacturer’s control, be combined with other products that are defective and cause consumer injury?
The fact pattern in these types of case is becoming all too familiar: a plaintiff contracts mesothelioma from working many years ago in the Navy on ships whose boiler systems contained valves or pumps (i.e., “component parts”) manufactured by private companies pursuant to the Navy’s specifications. These valves and pumps required periodic packing and replacement of gaskets supplied by others that could conceivably, but not necessarily, contain asbestos. The people who contract mesothelioma from exposure to asbestos when repairing or replacing packing or gaskets connected to the valves can’t sue the Navy because of sovereign immunity, so they turn their sights to component parts manufacturers.
CJAC argues it is unfair and ineffecient to impose liability upon a component part maker for defects in the final product over which it has no control. (Woodard v. Crane Co., B219366, CJAC amicus brief filed on 6/21/11)
Decision Rendered - 8/25/11: The Second Appellate District, in a unanimous opinion, came to the same conclusion as CJAC in our amicus brief, ruling that Crane Co. owes no duty to the plaintiff because Crane is a component parts manufacturer and did not contribute to the overall design of the product that allegedly caused the plaintiff’s mesothelioma.
Diaz v. Carcamo - California Supreme Court - 10/20/2010: CJAC (joined by the California Chamber of Commerce) filed an amici brief in the California Supreme Court in Diaz v. Carcamo. This case presents two important issues:
(1) When an employer admits respondeat superior liability for negligent driving by one of its employees occasioning injury to another, may the plaintiff still assert the alternate direct liability theory of “negligent hiring” and, pursuant thereto, introduce evidence of the bad character and poor driving record of the employee; and
(2) If so, may plaintiff, pursuant to Proposition 51, recover damages against employer and employee under both vicarious and direct liability theories in an amount that represents the total of the respective comparative fault percentage each separately bears for the accident?
The appellate opinion, contrary to law and logic, answered “yes.” We argue that allowing a direct negligence claim to go forward with one for admitted respondeat superior liability adds nothing, other than prejudice to the trial by encouraging the admission of otherwise inadmissible evidence. Further, the conflation of direct negligence theories when vicarious liability is admitted provides a basis for oppressive discovery and makes the apportionment of damages under Propostion 51 confusing and confounding. Once an employer admits vicarious liability for the negligence of its employee, the two should be treated as a single entity and the liability of the employer should be coextensive with that of the employee. To hold otherwise invites a jury to unfairly assess the negligence of the employer twice. (Diaz v. Carcamo, S181627, CJAC amicus brief filed on 10/20/2010)
Decision Rendered - 6/23/11 - The California Supreme Court, in a unanimous decision, overturned the Court of Appeal, echoing the argument CJAC (joined by Cal Chamber) made in its amici brief filed in October. The court agreed with CJAC’s argument that when an employer admits vicarious liability for an employee’s actions that cause injury to a plaintiff, there is no need for an additional claim of negligent entrustment.
The opinion states:
“A person injured by someone driving a car in the course of employment may sue not only the driver but that driver‘s employer. The employer can be sued on two legal theories based on tort principles: respondeat superior and negligent entrustment. Respondeat superior, a form of vicarious liability, makes an employer liable, irrespective of fault, for negligent driving by its employee in the scope of employment. The theory of negligent entrustment makes an employer liable for its own negligence in choosing an employee to drive a vehicle.
If, as here, a plaintiff asserts both theories, and the employer admits vicarious liability for any negligent driving by its employee, can the plaintiff still pursue the negligent entrustment claim? The answer is no…”
Cortez v. Abich - California Supreme Court - 6/24/10: The issue in this case is whether homeowners who hire unlicensed contractors to undertake extensive remodeling of their personal residences are liable in tort under Cal-OSHA and Labor Code section 2750.5 to workers hired by the contractors for injuries they sustain while working on the remodel.
CJAC argued in its amicus brief that imposition of Cal-OSHA requirements upon homeowners to injured third-party workers hired by unlicensed contractors for remodeling the homeowners’ personal residence is contrary to legislative intent, the purpose of Cal-OSHA and applicable contract licensing laws. It also runs afoul of the “unclean hands” doctrine. CJAC urged the Court to overturn the appellate court decision and affirm the trial court’s ruling.
Decision Rendered - 1/24/11:The Supreme Court agreed with CJAC’s amicus brief and unanimously ruled that extensive home remodeling is not within the statutory exception of “household domestic service”, which would allow defendants to escape liability for an “employee’s” injury.
Employee Meal and Rest Breaks
Hohnbaum et al. v. Brinker Restaurant Corporation - California Supreme Court - 8/18/09: This case addresses the issue of whether employers are required to ensure that their employees take meal and rest period breaks or that they are only required to make these breaks available to employees and not force them to work through the break periods. Also at issue is whether a case brought by employees alleging meal and rest break violations by their employers should be certified as a class action.
CJAC argues in our amicus brief that employees are free to choose whether to take a meal or rest breaks “provided” them by their employer and to waive their rights to these breaks for their own reasons. If an employee decides to not take a break it does not mean their employer is in violation of Labor Code provisions requiring it make the breaks available.
Also, employer liability for off-the-clock work requires proof that the employer knew or should have known employees were doing this contrary to express company policy, so class certification is not appropriate in this case.
Decision Rendered - 4/12/12: The Supreme Court unanimously agreed with CJAC's argument that while employers are required to make breaks available, employees are at liberty to use the periods as they wish and the employer need not ensure that no work is done.
The Court found that the view that an employer must ensure no work is done -- i.e., prohibit work -- lacks any textual basis in the wage order or statute at issue. "Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time."
Rashidi v. Moser, MD - Second Appellate District - 6/6/13: This case is the latest skirmish in the trial attorneys' judicial assault on MICRA, as they search for an appellate court that will sympathize with their arguments that MICRA's $250,000 noneconomic damage ceiling violates guarantees to equal protection and the right to jury trial.
CJAC argues that MICRA is an exemplary law that did what it intended to do: rein in medical malpractice litigation costs and reduce premiums for med mal insurance by placing limits on the availability and extent of recovery, and making that recovery more predictable and certain. All of MICRA's sections have withstood repeated constitutional challenges in our state supreme court, intermediate appellate courts and federal courts. The state interests underlying MICRA have consistently been found to be legitimate and all its provisions, separately and in conjunction, have been declared reasonably related to the law's objectives. (Rashidi v. Moser, B237476, brief filed on 6/6/13)
Kristina Gavello, et al. v. Bernard Millman, MD - First Appellate District - 3/7/13: This case represents the latest round in a series of coordinated attacks in the appellate courts on the constitutionality of MICRA. CJAC's brief argues that controlling precedent, sound public policy, and well-settled and reasoned constitutional doctrine make clear -- the $250,000 ceiling on recoverable noneconomic damages in medical malpractice cases comports completely with federal and state constitutional safeguards. Plaintiffs' counsel know this, but continue to assert the opposite, a tactic apparently based on the notion that if one says something often enough, the courts may eventually come to believe it, despite all law and reason to the contrary. However, calling a law unconstitutional does not make it so, no matter how devoutly the caller wishes and repeats it. (Gavello, et al. v. Millman, A132291, brief filed on 3/7/13)
Decision Rendered - 7/9/13: Once again, a constitutional challenge to MICRA was rebuffed. In its unanimous, unpublished decision, the First Appellate District effectively picks apart the trial attorneys' arguments regarding equal protection and the right to jury trial. In addition, the court spends a lengthy amount of time on the Prop 103 argument and the fact that the trial court record contains no evidence regarding the impact of Pop 103, or any other allegedly relevant change of circumstance that would necessitate relitigating the constitutionality of MICRA. The court addresses the MICRA challenge on pages 19-27 of the opinion.
Hughes v. Pham - Fourth Appellate District - 9/18/2012: This case is the "next chapter" in the plaintiffs bar's attack on MICRA. They argue MICRA's cap on noneconomic damages has become more arbitrary and irrational over time, and that the "purported basis for its enactment has been eviscerated." They point to "changed conditions" since MICRA's enactment that render it in violation of the right to jury trial, separation of powers, due process and equal protection, and that MICRA fails strict scrutiny analysis and even rational basis review.
CJAC argues MICRA is a rational response to the 1975 medical malpractice insurance crisis, and is a model law that reined in med mal litigation costs and reduced premiums for med mal insurance. All of MICRA's sections intended to reduce med mal litigation costs have withstood repeated constitutional challenges. Arguments that the $250,000 cap is no longer viable because it did not achieve its purpose of dampening litigation costs (because Prop 103 did instead) and that the conditions prompting its enactment no longer exist are nothing new and have been repelled by every court to consider them. (Hughes v. Pham, E052469, Amicus Brief filed on 9/18/2012)
Stinnett v. Tam - Fifth Appellate District - 11/5/2010: CJAC filed an amicus brief in response to this latest attempt to challenge MICRA on constitutional grounds.
Plaintiff argues that the conditions prompting MICRA’s enactment in 1975 are now materially different, removing any present “rational basis” for MICRA’s treatment of medical malpractice plaintiffs distinct from other personal injury plaintiffs. In addition, plaintiff contends MICRA never achieved its purpose of restoring affordable medical liability insurance premiums, claiming that credits instead belongs to the passage of Prop 103.
CJAC argues that all of MICRA’s sections have withstood repeated constitutional challenges and the “heart” of MICRA — its $250,000 lid on recoverable noneconomic damages — satisfies equal protection because it is rationally related to MICRA’s purpose: to reduce the cost of medical malpractice litigation and help to make med mal insurance premiums affordable. In addition, MICRA, not Prop 103, is responsible for arresting the conditions that caused the medical malpractice crisis.
Decision Rendered - 9/1/11: In a 2-to-1 opinion, the court agreed with CJAC and upheld MICRA against all constitutional challenges. Justice Gene Gomes, joined by Justice Dennis Cornell, held that the MICRA passes equal protection muster.
Personal Injury Damages
Dameron Hospital Association v. California State Automobile Association Inter-Insurance Bureau, et al.
The central issue this case presents is whether a hospital can prosecute a Hospital Lien Act claim against an auto insurer for the difference between what the hospital was paid to provide emergency treatment to a patient under a contracted medical plan and the amount the hospital considers the "fair market value" of the services it provided.
CJAC weighs-in here with the same concerns that prompted its participation in two analogous cases, Howell v. Hamilton Meats and Corenbaum v. Lampkin -- preventing satellite litigation to resolve economic value issues that, as a matter of practice and law, are readily and reasonably determined by market forces, i.e., by what hospitals are actually paid and accept from prepaid health plans for the medical care they render.
Corenbaum v. Lampkin - Second Appellate District - 12/31/12: In this case, plaintiffs were seriously injured while riding in a taxi. The defendant, intoxicated and driving at excessive speeds, ran a red light and collided with the taxicab. At trial, the court did not permit the admission of any evidence relating to the collateral source payment of plaintiffs' medical bills. The California Supreme Court's ruling in Howell v. Hamilton Meats & Provisions, for the first time, permits the introduction of the amount accepted by a medical provider as payment in full, but generally precludes evidence of any collateral source of such payment. The court is now seeking assistance on the following two issues left open by the Howell decision:
1. Although evidence of the amount billed for medical expense is irrelevant, and thus inadmissible under Howell on the issue of past medical damages, to what extent, if at all, is such evidence relevant and admissible on (a) medical expenses and/or (b) noneconomic damages?
2. To the extent that evidence of medical billings is admissible on either of the two issues identified above, and such evidence is in fact presented to the jury, what specific limiting instruction, if any, should be given?
CJAC's answer to the above questions is that evidence of the amount billed for medical expenses may be relevant to assist the trier of fact in determining future medical expenses in certain situations, provided an appropriate limiting instruction is given that they are not in themselves sufficient to establish the “reasonable value” of future expenses but must be considered with and in the context of expert testimony on the issue. Evidence of amounts “billed” for medical expenses is, however, never relevant nor admissible for ascertaining noneconomic damages. (Corenbaum v. Lampkin, B236227, brief filed on 12/31/12)
Decision Rendered - 4/30/13: The court unanimously agreed with CJAC's arguments that evidence of the full amount billed for a plaintiff's medical care is not relevant to the determination of a plaintiff's damages for medical expenses, past or future, and therefore is inadmissible for that purpose if the plaintiff's medical providers, by prior agreement, had contracted to accept a lesser amount as full payment for the services provided.
Howell v. Hamilton Meats & Provisions, Inc. - California Supreme Court - 9/2/10: At issue is whether plaintiffs in personal injury actions are entitled to recover an amount for medical expenses greater than what their private health insurance paid on their behalf and what their healthcare providers who treated them for injuries accepted as full payment for services. The appellate opinion here concluded the amounts billed for plaintiff’s medical care, and not the amount actually paid by plaintiff’s medical insurance to fully satisfy all her financial obligations for that care, was the correct measure of medical damage because to hold otherwise violates the collateral source rule.
Should this opinion remain law, it not only will cause confusion (it conflicts with other appellate decisions), but will result in substantially greater sums being paid by health insurers to plaintiffs, which translates into an increase in the size of settlements, verdicts, the number of lawsuits, and the cost of health care and insurance. (Howell v. Hamilton Meats & Provisions, Inc., S179115, CJAC amicus brief filed on 9/2/2010)
Decision Rendered - 8/18/11: The California Supreme Court agreed with CJAC and held that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.
The 6-1 decision, authored by Justice Werdegar with pro tem Justice Klein dissenting, overturned the appellate court, which had previously ruled that plaintiff was entitled to the full “sticker price” amount billed by her medical care providers.
Unfair Competition Law
People ex rel. Kamala Harris v. Pac Anchor Transportation - California Supreme Court - 4/25/12: The issue in this case is whether an action under the UCL against a trucking company for treating individuals who drive trucks for them as "individual contractors" instead of "employees" is preempted by the Federal Aviation Administration Authorization Act (FAAAA). CJAC contends that a trilogy of US Supreme Court cases provide ample authority and reason for concluding that this UCL action is preempted by the FAAAA. (People ex rel. Kamala Harris v. Pac Anchor Transportation, S194388, brief filed on 4/25/12)