Out of the all of the appeals that I have been involved in, the case that is identified in this link is probably the most interesting.  It involved a family dispute over the dinner table, when an irate uncle choked out my client's 14 year old son in response to a verbal exchange between the two.  The police were summoned, and they arrested the uncle for assault on the minor.  The uncle was prosecuted for a misdemeanor and was acquitted following a jury trial, in large part due to his retaining one of the better criminal defense attorneys in the county and due to the failure of the D.A.'s offices to subpoena the minor's grandparents, who witnessed the altercation but who reside up in Northern California. The D.A.'s offices apparently won't incur travel expenses for witnesses unless it is a felony matter.  Thereafter, the uncle sued my client and his girlfriend for malicious prosecution and false arrest, contending that they maliciously filed a false police report against him.  I filed a special motion to strike the civil lawsuit under C.C.P. sec. 425.16, contending that the actions of the clients in calling the police was a privileged act of petition of grievances under the code section, such that it could not constitute a basis for a civil lawsuit.  We further contended that even though the uncle was claiming that he choked the minor in self-defense, that there were sufficient objective facts to justify the call to the police by the clients.  The trial court disagreed and denied my motion, at which time I took it up on appeal and the appellate court agreed with me, which resulted in the dismissal of the malicious prosecution action and an award of attorney's fees and costs to my clients.  The opinion is in the link and makes for interesting reading even if you are not an attorney.  The bottom-line is that pursuing malicious prosecution cases are fraught with peril, and that you better have the case thoroughly analyzed as to your chances for success if you intend to pursue such an action.http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In%20CACO%2020120307058.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

PET OWNERS FARING BETTER IN COURT ON DAMAGE CLAIMS

I had posted an earlier blog last year about how an appellate court upheld an award of emotional distress damages to a couple that owned a dog when their neighbor attacked it with a baseball bat, injuring it.  The CA Supreme Court refused to review the appellate court decision, so the dog owners' damages claim is now a done deal.  Again, this represents a significant shift in the law, where traditionally most courts have disallowed emotional distress claims related to pet injuries.

The current state of the law is therefore that emotional distress damages are allowable to the pet owner if their pet has been intentionally injured (ie., via the situation hereinabove), but not when their pet has been only negligently injured (ie., like an errant motorist hitting a stray in the roadway, or a veterinarian being sued for malpractice because of a procedure being performed with complications on a pet).

The recent appellate decisions also appear to allow the recovery of vet bills to treat an injured animal, even when the bills exceed the fair market value (FMV) of the pet.  Contrast this to the situation wherein if your motor vehicle has been damaged in an accident, that your damages are limited to the cost of repair or the FMV of the vehicle, whichever is less.

The arguments against allowing emotional distress damages for the loss or injury to a family pet are essentially twofold:  (1)  If emotional distress damages are to be allowed, then to how many family members is such relief to be granted; and (2)  parents who suffer the injury or death of a minor child due to the negligence of another are not normally allowed damages for emotional distress unless they contemporaneously witness the injury or death of the child, and in the case of the death of a child the parents are limited to the loss of future financial support the child would have arguably provided them had the child lived, plus the "loss of society" of the deceased child.

This is an evolving area of California law, but it definitely appears that the courts are starting to recognize the unique bond that family pets share with their human owners, and are translating it into a remedy when the pet is injured.

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.