Cal Biz Lit

Governor Brown's Proposition 65 Proposals: Real Reform, or Reform Lite?

Amidst much fanfare, California Governor Jerry Brown announced yesterday his support for a variety of changes to California's Proposition 65, which is well-known to readers of Cal Biz Lit and officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986.

As outlined in the Governor's press release, he is supporting measures to:

• Cap or limit attorney’s fees in Proposition 65 cases.
• Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins.
• Require greater disclosure of plaintiff’s information.
• Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties.
• Provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm.
• Require more useful information to the public on what they are being exposed to and how they can protect themselves.

CBL would like to think this is real and that some action will be coming to significantly reform the oft-abused but highly popular Proposition 65.  But CBL is somewhat skeptical.  And that skepticism is only partly fueled by the fact that The Chanler Group, the self-described "Largest Proposition 65 Citizen Enforcement Law Firm," wasted no time in announcing its support for the Governor's proposals:

Many of the proposed reforms have long been implemented by The Chanler Group in their own practice, including supporting our clients’ certificates of merit with laboratory test results and other information from scientific experts demonstrating that consumers would likely be exposed to the listed chemicals. The Chanler Group also shares such laboratory test results with the alleged violator, provided they agree to keep such results confidential. The Chanler Group has been a vocal opponent of generic warnings, and favors requiring stronger, more specific language in the health hazard warnings provided to consumers so that they can make more informed choices, and are more aware of what chemicals they are being exposed to, the risks of such exposures, and how they can protect themselves.

Well, ok, would the bounty-hunter bar support the following?

• Limiting attorneys' fees to a percentage of penalties recovered?
• Moving the burden of proof to the plaintiff to show that exposures exceed the applicable no significant risk level ("NSRL")  or maximum allowable dose level ("MADL") and requiring disclosure of a scientific analysis of that proof to the alleged violator with the 60 day notice?
• Eliminating the scientifically unjustifiable 1/100 rule for the MADL for reproductive and developmental toxicants?

Most importantly, would the private enforcer bar support Assembly Member Gatto's AB 227, allowing a company receiving a 60 day notice to avoid prosecution by curing the violation within 14 days?  Or better still, Cal Biz Lit's proposal to allow sixty days to cure violations?

Those measures would be real reform.

 

Related articles

Jerry Brown joins move to rewrite California's Prop. 65

Capitol Alert: Brown administration joins push to amend Prop. 65

Brown administration joins push to amend Prop. 65

More Change At Cal Supremes

The Recorder and San Jose Merc have both confirmed that Associate Justice Carlos Moreno is retiring effective February 28.  This means that incoming Governor Jerry Brown will get his first Supreme Court appointment within two months of taking office.  But it will hardly be his first such appointment ever.  During his first two terms, Brown appointed Chief Justice Rose Bird (who brought no judicial experience to the bench) and Associate Justices Cruz Reynoso and Joseph Grodin. 

The Bird court forged a lot of new territory in the world of tort law, creating some tort-reform "poster child" cases such as Bigbee v. Pacific Telephone and Telegraph (1983) 34 Cal.3d 49 (jury to decide if telephone company is liable for negligent siting of telephone booth -- remember those? -- when drunk driver runs into it and injures occupant) and Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 (allowing case to proceed against property owner for actions of third-party criminal with no evidence of prior similar incidents).  It also reversed something like 61 death penalty sentencings. 

In 1986, in a campaign co-led by social conservatives and business interests, all three of these appointees were denied reconfirmation, a first in the history of the California Supreme Court. Then-Governor Deukmajian filled the positions with conservatives, and the Court has been pretty moderate ever since.

CBL lives in Oakland, where Jerry Brown was mayor from 1999 to 2006.  Jerry faces one of the hardest tasks imaginable in governing a state with a projected $28 billion budget deficit over the next eighteen months.  His views and appointments have generally become more moderate and respectful of institutions in the  years since his first two terms as governor.  CBL will be flabbergasted if Governor Brown is willing to expend any political capital at all on controversial bench appointments.  But time will tell.

 

Juror Anger In Hard Economic Times

I've practiced law in California through several recessions now.  But like all of us, I've never lived through, or practiced in, a recession like this one.  Yesterday's Los Angeles Times had a good article on how jurors respond when times are tough:

• Even more than usual, they want absolutely no part of jury service;
• People "on the margins of society" are more sympathetic to plaintiffs, and they are seeking a lot of hardship excuses;  and
• Quoting one prospective juror:  "Money is such an issue and to give money to someone for results of a case, it's really important that they're getting it for a real reason, an important reason."

Hat Tip to Ashby Jones at Wall Street Journal's Law Blog.

West Coast Product Safety Conference: March 10-11, Los Angeles

The International Product Safety and Liability Association will be holding its West Coast Product Liability Conference on March 10 and 11 in Los Angeles.  It looks like a very worthwhile conference, with dynamic speakers on CPSC issues, imported products, 
prevention, litigation and Proposition 65.  I'll be speaking on day two on the topic "Chemical-phobia In The Golden State: What It Means For The World’s Manufacturers."  The brochure is here.  Those of us who are speaking there are allowed to offer registration to our clients for a $50 discount.  And the association has just advised me that CalBizLit readers can take the same $50 discount by using this enrollment form.

Hope to see some CBL readers there.

Not Hard To See That Coming (Dole DEHP Litigation Department)

    L.A. Superior Court Judge Victoria Chaney dismisses two cases by Nicaraguan banana workers against Dole because of attorney misconduct.  Per Bloomberg.com: 

“What has occurred here is not just a fraud perpetrated on this court, but a blatant extortion of the defendants,” Chaney said. “I cannot in good conscience allow this case to continue.”

    Further:

Chaney said she will refer the case to the appropriate state bar associations and to prosecutors. 

Dole Fraud Hearing Begins

    I've blogged here and here about the Dole DBCP cases in Los Angeles.  First, six Nicaraguan filed workers tagged the company for $3.2 million, claiming sterility from exposure to this nematocide while working in the fields.  Plaintiffs were awareded punitive damages, which the trial judge took away, and she reduced the compensatoris to $1.58 for good measure.  Then the trial judge got wind that many of the related cases might be invented and ordered a hearing, which started yesterday.

    The LA Times reports that Dole's attorney, in his opening statement, told the court that "witnesses feared being killed for testifying about the scheme," and described a "decades long" scheme to defraud companies.  Judge Chaney "said she was concerned for the safety of investigators and attorneys and feared obstruction of justice and interference with due process." 

    But here's the real tell: 

Attorneys for the plaintiffs who sought to sue Dole made only a brief opening statement. But one of the lawyers, Michael Axline, said he agreed with the Dole lawyer that "all parties were in a nightmare situation."

He expressed regrets for the actions of a onetime co-counsel in Nicaragua who is now accused of engineering the fraud.

Trial By i-Phone, and How To Stop It

    This isn't exactly a California story, but it's something I can just about guarantee is going to be an everywhere story.  It's really interesting, and has tons of implications.

    Today's NY Times reports on jurors using their Blackberries, i-Phones, etc. to do research while the trial goes on, as well as keep their friends and family up to date on the trial.  Both activities, of course, are considered violations of the jurors' oaths just about everywhere.  The Times recounts the story of a criminal trial in Florida that was upended (just before a defense verdict) when a judge conducted an investigation of Blackberry use during trial and found out that eight jurors were conducting research.

    What's the solution?  In California, our standard jury instructions (known as "CACI") include standard admonition language to jurors, and while all of our instructions were re-written not long ago to make them more easily understood, I think juror interest and focus is, shall we say, a little uneven.  They usually get the admonition (which includes "no Internet research") right after they've been impaneled, when they're suffering from the shock of just learning they're going to be stuck in trial for another five to twenty days or more. 

    Please indulge CalBizLit in a couple of war stories:  Here are two contrasting examples I have from two cases I tried within a few weeks of each other.  While they were both pre-Internet, the contrasting ways the judges approached the admonition process has plenty of applicability to admonishing juries in the Blackberry era.

    In the first trial, a San Francisco judge, now retired, gave the standard, mumbled admonition at the beginning of the trial telling the jury not to do any independent research, talk to anybody about the case or form or express any opinions until they were instructed and the case was argued.  Thereafter, whenever the jury was excused for a recess, he helpfully reminded them to "remember the admonition."    I lost (yes, it has happened.  Not often, but it has happened).  And after we found the juror who had completely ignored the admonition, if he heard it at all, I got the case back on motion for new trial.

    In the second case, a Sonoma County judge, also now retired, told us he had written his own admonition, and that it was going to take about fifteen minutes to give.  In forceful language, he explained that the trial consisted of parallel tracks -- one for them, one for the judge;  that while they would be hearing evidence, we would be regularly meeting and talking about legal issues;  that the law was very strict about what they could and couldn't consider and that there were a number of things they needed to do to make sure that the law worked, why it was important, the significance of the law being followed, etc.  And at every break, he read them a separate, custom-written reminder of the high-points, varying it each time.  And at the end of the trial, after he took the case away from the jury and gave my client a directed verdict, the jurors remembered two things above all others:  my client's blue eyes when he testified, and the judge's admonition.

    Moral of the story:  Internet research, trial blogging, Blackberry assistance, they can likely be avoided.  But the judges can't just go through the motions:  they have to speak English, and act like this stuff is as important as it actually is.

California: It Really Could Be Worse

In an e-mail this morning, a client referred to California as "the strangest state in the union."  I often think that in many ways that's true, and  that's one of the themes of this blawg.  On the other hand, in light of today's events in Illinois, I have to agree with Jon-Erik Storm:

"I’m struck by the fact that for all the complaints employers have about California law, it’s about California law. Looking at what’s been going on in Illinois (where I went to school), I think we can at least be glad that the law is the biggest worry, instead of lawlessness."

Too Many Lawyers -- California Business Division

    There are lots of places we can go to read about the misuse and abuse of the civil justice system, usually by attorneys representing plaintiffs in personal injury, pharma, consumer or other litigation (Overlawyered.com and its sister site PointofLaw.com come to mind right away).  But  businesses aren't immune from stirring up wacky litigation, either.  Without comment on whether this one qualifies, CalBizLit presents for your consideration Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC v. Does 1-18, Inclusive, filed September 23 in the United States District Court for the Northern District of California.

    And who are these Does 1-18?  Why they are unknown individuals who "unlawfully posted false, misleading and defamatory comments regarding" the Park Merced and Larkspur Shores apartments in San Francisco and Larkspur, respectively, on www.apartmentratings.com, part of the fast-growing Web 2.0 industry of unfiltered consumer review sites (see:  www.citysearch.com, www.yelp.com, or, for that matter, www.amazon.com).  Whomever these Doe people were, they sure weren't very nice to Park Merced or Larkspur Shores, posting such detailed advice as "STAY FAR AWAY AND NEVER LOOK BACK,"  "WORST PLACE I'VE EVER LIVED,"a real dump," and "RUN RUN RUN FAR FAR AWAY."

    The two plaintiffs allege that "on information and belief" the posting  reviewers included persons who were not tenants, but were employees, agents, etc. of competing apartment house communities.  "On information and belief."  That's often lawyer language for "I got no idea whether it's true or not, but let's do some discovery and see what happens."

    Now, it's really hard to get a judgment against Does 1-18.  Apparently the idea here is to get the complaint on file, then subpoena apartmentratings.com and find out who is saying these terrible things.  The ACLU and Public Citizen Litigation Group , representing one of the anonymous posters, have moved for a protective order and to strike the complaint under California's anti-SLAPP statute, CCP section 425.16.  Hearing is set for January 15, and I'm going to keep an eye on this one.

    You know, everybody is entitled to file a suit about anything, I suppose, but some people, and some companies, really need to get over themselves.

   Hat tip to Legal Pad.

Lucky Thing We Have a Court of Appeal

For resolving critical, weighty disputes like this one.