Wednesday, September 26, 2012


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.

Tuesday, September 25, 2012


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.

Tuesday, September 18, 2012


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.

Wednesday, September 5, 2012


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.