STATE BUDGET WOES FURTHER CRIPPLE ACCESS TO COURTHOUSES

While the State of California funds the various county courthouses, the counties are responsible for actually managing those funds and administering the courthouses in their respective counties.  The Los Angeles Superior Court just announced the closure of 10 courthouses, including Beverly Hills, West Los Angeles, Malibu, Avalon, Whittier, Pomona, and San Pedro.  This is supposed to be phased over the next 8 months.  This will mean a delay in civil trials, longer lines at the courthouses that still remain open, and longer distances for litigants and witnesses to travel to court as their cases are assigned to the remaining courthouses that are remaining open.  In practicing law over the past 34 years, I have always had the opinion that the Los Angeles County SuperiorCourts were never run as efficiently as those of other counties. The Orange County Superior Court system remains a shining example of how the doors to justice can still be kept open, even if some cutbacks are inevitable.  As bad as the situation in LASC is, the situation up north in San Francisco is going to be worse, with most of the civil courtrooms in the main courthouse being closed.  The only bright side to the budgetary cutbacks is that we are still apparently able to fund the salaries of the members of the state legislature, so that they can continue their good work in administering the public's money for the benefit of all concerned (yes, this is supposed to be sarcasm).

FEWER LAWSUITS FILED IN 2010 THAN IN 2009

According to a recent report from the National Center for State Courts, civil filings through-out the state declined approximately 2 per cent in 2010 as compared to 2009.  The same study also showed that California had fewer civil cases filed per capita versus other states.  Of the 29 states and the District of Columbia that were actually profiled in the study, California ranked 28th in the number of civil cases filed.  In 2010 California had 3,308 civil cases filed per 100,000 people, compared to top-ranked New Jersey with 11,625 civil cases filed per 100,000 people.  California is often unfairly profiled as being an overly-litigious state, usually by various "tort reform" groups whose avowed agenda is the curtailing of consumers' rights to access the civil justice system.  California continues to be plagued by a backlog in its courts system of both civil and criminal cases, thanks to the current budgetary crisis in Sacramento and in the various counties and cities that also support the court system.  When this will improve is anybody's guess.

MORE CHANGES TO WORKERS COMPENSATION LAW

Following the radical overhaul of the Workers Compensation (WC) laws by the Governator, Governor Jerry Brown has just signed into law further changes to the system that will take effect in 2013.  The changes will include the following:
1.  Coverage for psychiatric injury will be barred, absent the worker suffering a "catastrophic injury".  What is "catastrophic" is apparently undefined.
2.  The Workers Compensation Appeals Board (WCAB) will no longer adjudicate disputes over appropriate medical treatment that opposing physicians espouse on behalf of the applicant versus the employer.  Instead, disputes over appropriate treatment will be taken out of the WCAB and assigned to an anonymous state appointed doctor, who will have the final decision as to whether a disputed treatment or surgery is compensable or not.  This decision would be non-rebuttable and would put treatment decisions into the hands of an unknown doctor with unknown qualifications, and with no right of cross-examination or rebuttal testimony from another physician.
Critics of the change worry that if the insurance company pays for the anonymous doctor review, that this will create a conflict of interest for the anonymous doctor.
The ostensible purpose of the new law is to make the WC system less litigious and increase the size of permanent disability awards to injured employees.
There are sure to be due process challenges to the new law in civil court, but given the last set of changes to the WC system it is doubtful that court action or resultant appeals will prevent implementation of the changes.
The WC system tries to draw a fine-line between compensating injured workers and shielding employers from tort responsibility for worker's injuries.  While neither side will be happy with how this fine-line is drawn, given events to date the employer would seem to be coming out on top.

O.C. SUPERIOR COURT TO REQUIRE E-FILING ON ALL CIVIL CASES IN 2013

Orange County Superior Court is announcing a pilot program wherein all civil cases must be electronically filed, effective 2013.  This will include small claims actions also.  Up until now, the only cases required to be e-filed in O.C. were cases designated as "complex" or actions for breach of contract.  Personal injury cases must be e-filed as of 10/1/12.  This is a pilot program which if borne out as effective, is likely to be followed by every county in the state.  Most actions in Federal court, including bankruptcy actions, are already required to be e-filed.  E-filing is supposed to be more economical for the courts to handle, especially in light of the current budget crisis affecting the entire state.  This move is likely to result in some lay-offs in the clerk's office.  E-filing is actually more expensive for litigants, in that you have to pay a fee of approximately $10.00 to an e-filing company or attorney service in order to scan the document for filing.  E-filing may benefit some litigants facing a statute of limitations deadline, as the e-filing can be accomplished up to midnight of any given court day as opposed to filing being cut off when the clerk's office normally closes at 4:30 P.M.  O. C. Superior Court gets up to one million filings a year, of which about 40% of the civil filings are already being e-filed on an optional basis.

NEW LAW LIMITING DEPOSITIONS TO SEVEN HOURS

Governor Jerry Brown just signed a new law limiting the length of depositions in civil cases to a maximum of seven hours, a time restriction mirrored in Federal deposition rules.  Employment cases and cases deemed as "complex" are excluded from this time constraint.

The time constraints can be lengthened per the parties' agreement to do so, or by court order if necessary.

The bill was lobbied for by the Consumer Attorneys of California, the state's largest voluntary bar association consisting of attorneys who primarily represent plaintiffs in personal injury actions.

Proponents of the new law see it as a means of preventing litigants from being harassed through marathon multiple day deposition sessions.

Curiously, the law was opposed by the California Chamber of Commerce, an organization that regularly criticizes what it perceives as "lawsuit abuse".

In the experience of this practitioner, it is very rare for any deposition to last as long as seven hours, and it has not been my general experience that lawyers  abuse depositions just to create hardship for the witness.

DOG OWNERS WIN IN PRECEDENT-SETTING CASE

As opposed to the law in other states, it has long been the law in California that if a third party causes the  death or injury to a person's dog that the damages available to the dog owner are limited to the cost of the medical bills  (ie., the vet's bill) or the "fair market value" of the dog if it dies.  The only exception might be if the dog had a documented history of creating income for its owner, like if it was a show dog or a pedigree breeder.

Emotional distress damages to the owner due to the injury or death of the dog caused by the acts or omissions of a third party have otherwise been routinely prohibited under California law, keeping in accord with the general law of the state that the loss to personal property (and which a dog technically is) is limited to the cost of repair or the fair market value of the property, whichever is less.  In the case of a typical household pet, the fair market value on Fido is de minimus.

In a recent appellate decision that appears to create "new law", an appellate court upheld an award of emotional distress damages awarded by a jury to a dog owner when his obnoxious neighbor struck and injured his min pin with a baseball bat.

What appears to have persuaded the appellate court in doing so was the defendant's violation of a prior mutual restraining order agreed to with the plaintiff, the intentional nature of the attack on the dog, the fact that it is foreseeable that dog owners would suffer mental distress if a person were to injure or kill their dog in a wrongful act, and that other states have allowed emotional distress damages to the dog owner in similar circumstances.

You can access the case on-line for further further details of the underlying facts and the court's reasoning.  See Plotnik v. Meihaus, California appellate decision case number G045885, as decided on August 31, 2012.

MORE BUDGET CUTBACKS FOR ORANGE COUNTY SUPERIOR COURT

Like all agencies across the State of CA, the State's budget woes have also affected the courts, to varying degrees per county.  The most recent cutback that will be occurring in O.C. will be the cessation of hearing civil cases and small claims matters in the West Justice Center (WJC) in Westminster.  For example, in the fiscal year of 2011-2012 the WJC heard approximately 9,400 civil cases and more than 3,300 small claims cases.  These civil/small claims matters will now be transferred to the Central Justice Center in Santa Ana or the North Justice Center in Fullerton.  No court staff is apparently going to be let go, instead 12 employees from the WJC will be transferred to the various branch courts.  Obviously, given the volume of civil/small claims matters heard in WJC over the past fiscal year will mean that the transfer of such matters to the other branch courts will cause further delay in hearing those matters when the branch courts are already keeping busy with the normal flow of matters that are directly filed there.   In addition, the night court sessions for small claims in the Harbor Justice Center in Newport Beach will be canceled and redirected to the Central Justice Center. The Governor has scheduled a $544 million cut to the judiciary, and the O.C. Superior Court will have to dip into its cash reserves to deal with these cutbacks.  Orange County residents should still be thankful that Orange County Superior Court remains one of the most efficient and user friendly superior courts in the state in the face of such adversity, given its excellent court staff and sitting judges.  Nevertheless, expect matters to get worse before they get better.  It remains a shame that the justice system should be adversely affected by the incompetence of state government.

TOP TEN REASONS TO HIRE AN ATTORNEY

1.  Is Facebook friends with all of the Supreme Court Justices.

2.  Guarantees in writing a complete refund of all fees paid if your criminal defense case results in your receiving the death penalty.

3.  Cancelled award ceremony at the White House to receive the Presidential Medal of Freedom in order to personally handle your small claims appeal.

4.  Always receives enthusiastic applause from the judge and jury when he concludes cross-examination of a witness at trial due to his amazing technique of using a Jerry Mahoney ventriloquist dummy to interrogate the witness.

5.  Gives one free accordion lesson for every new client that he is referred.

6.  Only attorney in town to effectively combine a Power Point Presentation with clog dancing to bring the jury to tears in his closing argument.

7.  If you retain him, at no extra charge you receive the director's cut DVD of Season One of Matlock.

8.  Has offices in Antwerp, Zanzibar, and Brunei, but can still accommodate an appointment to see you in conference within one hour at his Barstow office.

9.  Not only has a successful law practice, but also runs a thriving Three Card Monte booth in front of the courthouse.

10.  Gave up a promising career as a rodeo clown to devote himself to the practice of law.

STATE'S BUDGET WOES AFFECT THE JUSTICE SYSTEM

An unfortunate aspect of the State's recent budget woes has been severe budget cuts to the court system.  Depending on any county's caseload and court administration, this has affected some counties more severely than others.  Los Angeles County Superior Court as the largest court system in the state has been most adversely affected, resulting in the closing of many trial departments and layoff of staff for indefinite periods of time. San Francisco has also taken similar hits.
Orange County Superior Court, and which can pride itself on being one of the best-managed courts in the State, has largely been able to avoid the same closures and layoffs that have affected Los Angeles and San Francisco.
However, and effective July 30, 2012, the regular hours of operation for the Orange County Clerk's Offices will be from 8:00 A.M. to 4:00 P.M., cutting off their usual closure time of 4:30 P.M.  Obviously, it could have been worse.
When the justice system is subjected to budgetary cuts, it is usually the civil caseload that fares the worse, as Constitutional safeguards of the right to a speedy trial mean that the courts' criminal caseload will be given first priority to trial courts and process.
It is a shame that the right to a fair day in court should be delayed or denied because those elected to run this State cannot do so.

NEW APPELLATE DECISION A TRAP FOR THE UNWARY LITIGANT:

Under Code of Civil Procedure section 998, also called a statutory offer of compromise, a defendant or a plaintiff can offer to allow a judgment to be entered in favor of the plaintiff or the defendant for a specified amount.  The party receiving the offer then has 30 days to accept it, and if they don't accept it within that time frame then per the code section the offer is deemed to be rejected thereafter.

If the party  receiving the offer then goes to trial and fails to do better than what the offer was, then they cannot claim their costs of suit and the party making the offer is awarded their costs of suit.  Costs of suit are defined by statute and do not include attorney's fees, but can include costs for filing fees, service of process, jury fees, court reporter charges, costs for trial exhibits, and fees for expert witnesses.  The latter can often comprise the most expensive cost items for a case that goes as far as a trial.

In a personal injury case, if the defendant rejects a plaintiff's statutory offer and doesn't do better at trial, then the judgment for the plaintiff also bears pre-judgment interest back to the time the offer was rejected, at .10% per annum.

The code section also  specifies that a method of acceptance must be included within the body of the offer, such as a signature line showing acceptance for the party receiving the offer to sign their acceptance thereto.

The whole policy purpose behind C.C.P. sec. 998 is to encourage settlement, or to suffer adverse financial consequences if a litigant chooses to roll the dice at trial and then comes up short.

The failure of a plaintiff to do better at trial than what a defendant's pre-trial statutory offer was can be devastating, as the defendant's costs will be subtracted from whatever amount a plaintiff was awarded at trial.  If the plaintiff received nothing at trial or less than what the defendant's costs turn out to be, then the defendant is awarded a judgment against the plaintiff. A judgment can be enforced by the prevailing party by legal execution, including wage garnishment, a levy on a bank account, or a lien upon real property.

In a recently published California appellate case of first impression, it was held that a failure by the offering party to include an acceptance provision within the body of the offer was fatal in any attempt to be awarded costs thereafter, if the party receiving the offer rejected it and didn't do better at trial.

That case is Perez v. Torres (May 24, 2012) 2012 DJDAR 6810.

What does this mean for plaintiffs?  If the plaintiff is making a statutory offer, they must include an acceptance provision for the defense attorney to sign on, within the body of the offer.  If the defendant makes a statutory offer to the plaintiff and omits an acceptance provision, then the plaintiff, should they not want to accept the offer, should stay silent on the subject in case things don't turn out better after a trial.

Statutory offers of compromise are nearly always made by a defendant and usually by a plaintiff prior to trial, and they require a great deal of strategy and evaluation of the strength of the plaintiff's case that should be seriously discussed between the plaintiff and their attorney if they are to reap the benefits and avoid the adverse consequences of the procedure.

TOP TEN REASONS TO FIRE YOUR ATTORNEY:

1.  Can't provide you with legal advice unless he first consults with his parole officer.
2.  Law school degree on wall issued by correspondence course from University of Tierra Del Fuego.
3.  Advises you to cop a plea to involuntary manslaughter when you are consulting with him about a contract case.
4.  On his office stationery he has a nickname of "Bud", "Chip", or "Skip" printed in quotation marks between his first and last name.
5.  Drafts all legal documents with quill pen on parchment.
6.  Claims to specialize in space law but will still handle your case.
7.  Wears English barrister wig and black robe when at the office.
8.  Ankle bracelet sets off metal detector when he goes to the courthouse.
9.  Law office located in a van down by the river.
10.  Furiously pounds a gavel on his desk whenever you make an inquiry about your bill.

TOP TEN THINGS TO ASK BEFORE YOU RETAIN A PERSONAL INJURY ATTORNEY:

1.  How long have you been practicing law?
2.  How many personal injury cases have you handled in your career?
3.  Will you be willing to try my case if for any reason it cannot be settled?
4.  How many jury trials have you conducted?
5.  Is your contingency fee negotiable?
6.  Will I be responsible for case costs in addition to the contingency fee, and if so, are the costs contingent like  the fee?
7.  How would you propose to handle a case such as mine?
8.  How long will it take to resolve my case?
9.  Will I be forwarded copies of letters and other important documents on my case as it progresses?
10.  Will you personally handle my case and return my phone calls or e-mail inquiries?