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).
Wednesday, November 21, 2012
Thursday, November 1, 2012
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.
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.
Wednesday, September 26, 2012
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.
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
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.
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
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.
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
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.
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.
Friday, August 3, 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.
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.
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