State should protect essential businesses from frivolous and predatory lawsuits

CalMatters published version here

By Kyla Christoffersen Powell

The COVID-19 pandemic has created an extremely trying situation for essential businesses, which have stepped up in amazing and heroic ways to provide the goods and services that Californians rely on daily.

But as the state eases quarantine restrictions and takes steps to reopen, essential businesses face yet another devastating threat to operations – predatory lawsuits. A wave of coming litigation capitalizing on this pandemic threatens to further burden essential businesses and greatly exacerbate economic recovery in California and across the nation.

This is why two groups of California legislators, one democratic and two bipartisan from the Central Valley and the Southland, along with the Civil Justice Association of California and a broad coalition of industry organizations, have asked Gov. Gavin Newsom to issue an executive order protecting essential businesses against this mounting threat of litigation.

A grocery store for example may be an essential business staying open to ensure that communities have access to food. Even if a store is closely following standards set by local and state public health orders, they may still be sued. If we need businesses to serve in critical ways, we must in turn protect them.

California already protects a narrow category of private entities from civil liability who assist during times of crisis under the Emergency Services Act, unless they commit gross negligence or willful misconduct. It also requires these entities to register with the state to qualify. However, to date no state registry has been developed.

An executive order is needed to extend existing protections to all provision of goods, services and facilities by essential businesses during the state of emergency. It should also deem the list of essential industries designated by the State Public Health Officer as Essential Critical Infrastructure Workers satisfactory of the registry requirement.

These measures are fitting and warranted given the unprecedented scale of critical workers and resources this crisis has required. As acknowledged by the state, essential businesses are helping state, local and tribal partners to protect communities and provide public health, safety and security. They should not be punished with lawsuits in return for their efforts.

California has been proactive during this pandemic, providing safety nets to the vulnerable and establishing health infrastructure to ensure we are prepared – which is why it’s time that we step up on this issue. Ensuring liability protections are in place now as stay at home orders lift is crucial, because this marks the beginning of an economic recovery period.

Our businesses and the economy cannot sustain further damage. More than ever, California needs businesses, large and small, to continue to operate, produce and employ – not fight frivolous lawsuits.

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Kyla Christoffersen Powell is president and CEO of the Civil Justice Association of California, kpowell@cjac.org. She wrote this commentary for CalMatters.