Cal Biz Lit

Why I Want to Practice Plaintiff Animal Attack Law -- New Case Stats From Our Government

The U.S. Justice Department has a "Bureau of Justice Statistics" that issues reports on civil bench and jury trials in state courts every four years.  The 2005 survey is just out, and it is full of all kinds of interesting nuggets about civil trials nationwide.

But the focus on this blawg is on California, and in that respect, there are some eye-openers.

• The City and County of San Francisco, world wide headquarters for CalBizLIt and the place where my office is located, had a population just over 750,000 in 2005 (although the number is probably down now) and saw a grand total of 121 bench and jury trials that year.  This seems about right, assuming they aren't including small claims appeals, defaults, etc., which I gather they are not.

• Alameda County, twelve miles across the bay, has a population of about 1.4 million, and had 176 trials.  This also seems about right.

• Los Angeles County, with almost 10 million souls, had 383 trials.

But now it gets really weird:

• Santa Clara County, home of Silicon Valley, had a grand total of 54 trials in one year.  44 were jury trials, 10 were bench trials.  This county presently has 89 judges and commissioners (court employees who also sometimes hear trials).  And they had .606 trials per judicial officer in 2005.

• As of today, Contra Costa County -- probably the largest Northern California suburban county, with well over a million people -- has 59 judges.  They tried a total of 29 civil cases, 18 by jury and 11 by bench trial.  The latter figure is important, because bench trials are usually much quicker, and judges typically hear other matters while they are also hearing bench trials, as there is no concern about inconveniencing a jury.  So, we've got less than 1/2 a jury trial per judge.

Please don't take the wrong message from this.  Although you'll hear out-of-state clients say otherwise, I think most of our state court judges are hard working, smart, diligent and underpaid.  But in all the hype about alternative dispute resolution, what happened to the good old TDR -- traditional dispute resolution? For better or for worse, it is becoming a thing of the past.

A few more California stats:  Median San Francisco jury verdict for winning plaintiffs:  $69,000.  Median Los Angeles jury verdict for winning plaintiffs:  $245,000.  Guess that's why they call one of their courthouses there "the bank."  But median bench trial judgment in San Francisco for winning plaintiffs:  $148,000.

And finally, some nationwide stats one who wins and who loses:

• Car crash plaintiffs win 64.3% of the time (although they don't often win much money, I'll venture);

• Asbestos plaintiffs win 64.3% of the time (no huge surprise there);

• Other product liability plaintiffs win 19.6% of the time (I'd love to see some Californiastats, although I bet they're pretty good for the defense also);

• Mortgage foreclosure plaintiffs win 89.4% of the time;
  

And animal attack plaintiffs win a thumping 75.2% of their cases.

Hat Tip to California Puntive Damages -- An Exemplary Blog

Late Update:  California Attorneys' Fees has a good update of the rest of the report here.

Blawg Review #183 -- A Great Resource for California Blawgs

Kimberly A. Kralowec's always excellent UCL Practitioner hosts Blawg Review #183 this week, and provides a wealth of information on California-centric law blogging.  She not only provides links to several comprehensive lists of bay area and California  blawgers, but surveys recent posts from about thirty-five of them.  There  are several I hadn't heard of before, and several I'll be adding to my RSI reader.

Update:  For those of you who have CalBizLit in your reader, I apologize for the multiple posts.  The new TypePad and I are having issues this morning.

New Automotive Safety Preemption Case

   

  As many readers of CalBizLit know, federal preemption is a recurring
issue in product liability cases.  The law of preemption California       
just took a step in the direction of  automobile manufacturers.

     The requirements for passenger vehicle restraint systems in the United States are established by Federal Motor Vehicle Safety Standard (“FMVSS”) 208, set by the National Highway Traffic Safety Agency (“NHTSA”) under authority of the National Traffic and Motor Vehicle Safety Act (49 U.S.C. § 30101 et seq.)  The safety act requires combination lap shoulder belts at the outboard (e.g., window) seats, but allows either lap belts or lap shoulder belts at inboard (usually middle) seats. 

     The Safety Act has a preemption provision, providing that, on the one hand, states may impose requirements relating to the same aspects of performance as those promulgated under the Act only if they are identical, but that, on the other hand, “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” (49 U.S.C. § 30103(e).) 

     Until yesterday, the law in California was that product liability law suits claiming defects in restraint systems that conformed to those authorized by FMVSS 208 were not preempted.  Ketchum v. Hyundai Motor Co. (1996) 49 Cal.App.4th 1672.  But now, maybe not so much.  

     Yesterday, the Court of Appeal decided Williamson v. Mazda Motor of America (October 22, 2008) ___Cal.App.4th ___ (G038845).  The vehicle in Williamson was in a head-on collision.  Two back-seat passengers were strapped into three-point restraints and survived.  The decedent was secured by the middle two-point lap belt, jackknifed and was killed.  Plaintiffs’ counsel acknowledged before the trial court that his only theory was that the manufacture of the vehicle with a lap belt instead of a lap shoulder belt was a product defect, and the court granted judgment on the pleadings.

     The Court of Appeal held that Ketchum was inconsistent with the U.S. Supreme Court’s more recent holding in Geier v. American Honda Motor Company, Inc. (2000) 529 U.S. 861 finding preemption of a product claim based on failure to install air bags, where  FMVSS 208 allowed installation of air bags or other passive restraints.  Based on the reasoning in Geier , this Court of Appeal held that the product defect claim was preempted.

     Now of course, technically there are conflicting Court of Appeal decisions on this issue, and under Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal. 2d 450, every trial court in the state is entitled to follow either one of them.  I’m guessing, however, that when or if issue comes up again, whether concerning restraints or other performance standards, the trial courts are going to take the safe route and follow Geier and Williamson.

            BTB, congratulations to my friend Brian Takahashi at Bowman and Brooke in Los Angeles, the winner here.

A Lesson on Default Judgments

We have this happen at least a couple of times a year:  an out-of-state company calls us, tells us they were sued, they turned the summons and complaint over to (a) an insurer;  or (b) their local counsel;  or (c) to a clerk or a secretary or somebody in office, and now they have received a notice of entry of default.

The common perception seems to be that we can get a default set aside just for the asking.  But that ain't so.  The standard for setting aside a default appears in Code of Civil Procedure section 473, which essentially allows a court to set aside the default for mistake, inadvertence or excusable neglect.  There are hundreds of appellate cases on this subject, and they are all over the map. 

Here's the latest one:        Fasuyi v. Permatex (October 15, 2008) ___ Cal.App.4th ___ (A117760).  And the holding and language are very helpful for somebody trying to get the default set aside: 

So, what do we have? We have a legal department at ITW which initially assisted Fasuyi’s counsel in effecting service. Once that service was accomplished, the legal department immediately did what any good department would, forwarding the summons and complaint to its insurance broker for appropriate handling. The broker also did what any good broker should, and immediately forwarded the complaint on to the appropriate insurers, received back the requested confirmation, and believed that the matter would be tended to.  Sadly, it was not.

That is the record here. No lack of cooperation from the defense side. Indeed, the converse. No deception. No duplicitousness. No stonewalling. No evasion. And no disregard of any warning. In fact, no warning.

It will be recalled that Fasuyi’s counsel had  been in contact with ITW’s legal department, which, not incidentally, had helped counsel effect service by identifying the location of CT Corporation. Notwithstanding that, Fasuyi’s counsel took the default without so much as a reminder, let alone a warning, about any responsive pleading.

You may not be surprised to learn that the Court of Appeal was not too nice to plaintiff's counsel, made some observations about the ethics of taking the default, and reversed the trial court for refusing to set aside the default.

Still, probably better not to allow the default in the first place . . . .