Drastic budget cuts instituted in June, 2012, have had an immediate effect on pending and newly filed cases throughout California. San Diego Presiding Judge Robert Trentacosta warned that “the cuts envisioned by our budget reduction plan will affect every judge, court employee, and ultimately the litigants, court users and citizens”.
Significant changes include:
1. Increased Fees and Costs
As of July 10, 2012, there is a statewide increase in fees. First appearance fees have increased from $395.00 to $435.00 in unlimited jurisdiction ( and to $450.00 in Riverside and San Francisco) and to $370.00 in limited jurisdiction. The motion fee has been raised from $40.00 to $60.00. (Motions for summary judgment remain $500.00 per motion). The cost for facsimile filing has risen from between twenty and forty cents per page to seventy-five (75) cents per page.
2. Closed Courtrooms and Courthouses
Fifty-six (56) courtrooms in Los Angeles have been closed including twenty-four (24) civil courts. Other courtrooms will have significantly reduced hours.
In Fresno, all seven branches of the Fresno County Superior Court have been closed leaving one courthouse to service the entire region. San Bernardino is currently considering closing court houses in outlying areas such as Barstow. Throughout California, courthouses are facing closures or reduced hours.
3. Court Reporters are No Longer Guaranteed
Effective as of May 15, 2012, the Los Angeles Superior Court suspended Local Rule 2.21 and Appendix C, which provided court reporters for civil matters. court reporters are no longer available for general jurisdiction morning calendar matters or civil trials. A party may hire a court reporter from a court list, however, those reporters are only available 2 ½ days per week. A party may not hire its own court reporter who is not on the list without obtaining a stipulation from the court.
4. Jury Fees Must be Submitted Early and Are Non-Refundable
Code of Civil Procedure § 631 pertaining to payment of jury fees has been amended. Now, in order to secure a jury trial, each party must pay an advanced jury fee of $150.00 either prior to the initial case management conference in the matter or, if no case management conference was scheduled, within 365 days after the filing of the initial complaint. If the party has not appeared within the 365 days, the fees are due 25 days before trial. Although the Judge has some discretion to waive this rule, the intent is that any party who does not comply waives his or her right to a jury trial.
The $150.00 must be paid by each party who wishes to secure a jury and the amount is nonrefundable. If there are multiple plaintiffs or defendants, each person must pay the $150.00. The $150.00 is no longer credited to jury fees incurred on the second day of trial.
This rule is retroactive and applies to cases filed before the rule took effect on June 28, 2012. If a case is pending and it is not yet 365 days since the initial complaint was filed, the parties must pay the fees.
5. Elimination of Judicial Settlement Programs
The San Francisco Superior court has ended its Mandatory Settlement Conference program due to shortage of personnel and is starting a program run by volunteer attorneys. Although Los Angeles is continuing its mediation program, other regions are likely to eliminate or severely curtail their free programs.
6. Effect of Cuts on Pending Litigation
As a result of budget cuts, litigation costs have vastly increased. At a minimum, parties must pay higher filing fees, motion fees, and costs for court calls and facsimiles, as well as the non-refundable $150.00 jury fee per party. Additional costs will arise from the loss of free mediation programs, and the need to pay for court reporters and translators that were previously provided by the court.
Clients should anticipate that it will take longer for civil cases to reach trial, and that it will become difficult to obtain hearing dates for motions. Due to staff shortages, clerks are scarce, and documents are taking longer than usual to process which is delaying settlement and dismissal of cases. Judges are trying to clear their courtrooms by ordering litigants to attend multiple mediation sessions, or encouraging them to try their cases before retired judges.
Overall, insurers and clients should anticipate a pattern of delays and increased costs as additional cuts are implemented.
Tuesday, November 6, 2012
Wednesday, June 13, 2012
PUBLIC ENTITIES CAN BE HELD VICARIOUSLY LIABLE FOR ADMINISTRATORS’ NEGLIGENT HIRING AND SUPERVISION OF EMPLOYEE
In C.A. v. William S. Hart Union High School District (2012) 54 Cal. 4th 861, C.A., a minor high school student, sued the school district and others for negligent hiring, supervision and retention after he was sexually abused by his guidance counselor. After the trial court dismissed the complaint, stating that there was no authority to hold a public entity liable for such negligence, the student appealed and the matter was ultimately heard by the California Supreme Court.
The Supreme Court held that a school district could be held vicariously liable for negligent hiring, et al. with regard to a school employee who previously committed sexual misconduct. In doing so, the Supreme Court explained that the existence of a “special relationship” under California law between school employees and students creates a higher duty of care.
Public entity tort liability in California is entirely statutory under Government Code Section 815 and its related provisions. In making its ruling, the Supreme Court explained how a public entity may be considered vicariously liable under the Government Code for negligence by its administrators and supervisors in hiring, supervising, and/or retaining employees.
The Supreme Court emphasized that the liability of a public entity “must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation.” A claim that an employee has committed sexual misconduct “does not of itself establish, or raise any presumption, that the employing [entity] should bear liability for the resulting injuries.” Even when negligence by a supervisor is established, “the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the [victim] than with any other party…” However, without a “special relationship” like the ones between school employees and students, individual administrators and supervisors for a public entity could not be held liable for negligent hiring, retention or supervision of a fellow employee, and thus there would be no vicarious liability for their public entity employers based on those employees’ actions.
It can be argued that the Supreme Court’s specific ruling here is narrowly applicable to cases involving school district employees and students. However, both public and private entities should be diligent in both (a) confirming the background and reference information of potential employees and (b) investigating any reports or complaints of inappropriate conduct of current employees.
The Supreme Court held that a school district could be held vicariously liable for negligent hiring, et al. with regard to a school employee who previously committed sexual misconduct. In doing so, the Supreme Court explained that the existence of a “special relationship” under California law between school employees and students creates a higher duty of care.
Public entity tort liability in California is entirely statutory under Government Code Section 815 and its related provisions. In making its ruling, the Supreme Court explained how a public entity may be considered vicariously liable under the Government Code for negligence by its administrators and supervisors in hiring, supervising, and/or retaining employees.
The Supreme Court emphasized that the liability of a public entity “must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation.” A claim that an employee has committed sexual misconduct “does not of itself establish, or raise any presumption, that the employing [entity] should bear liability for the resulting injuries.” Even when negligence by a supervisor is established, “the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the [victim] than with any other party…” However, without a “special relationship” like the ones between school employees and students, individual administrators and supervisors for a public entity could not be held liable for negligent hiring, retention or supervision of a fellow employee, and thus there would be no vicarious liability for their public entity employers based on those employees’ actions.
It can be argued that the Supreme Court’s specific ruling here is narrowly applicable to cases involving school district employees and students. However, both public and private entities should be diligent in both (a) confirming the background and reference information of potential employees and (b) investigating any reports or complaints of inappropriate conduct of current employees.
Thursday, May 3, 2012
PRIVATE SECURITY COMPANY DEFEATS PLAINTIFF’S APPEAL IN MALICIOUS PROSECUTION AND EMOTIONAL DISTRESS CASE
In Darin Johnson v. Ralphs Grocery Company, et al. (March 20, 2012) (No. D058312), plaintiff Johnson sued Special Operations International, Inc. (“SOI”), a private security company, and Ralphs Grocery Company (“Ralphs”). SOI contracted with Ralphs to provide security services at the subject store. Ms. Johnson alleged that she was falsely accused of shoplifting a tablecloth and firewood, handcuffed, detained for about two hours, and paraded through the Ralphs store by two security officers in a humiliating manner.
After Johnson successfully defended herself against the shoplifting charges in criminal court, she sued Ralphs and SOI for malicious prosecution, negligence, and infliction of extreme emotional distress. Bradley & Gmelich represented SOI and its two security officers, and filed a motion to dismiss Johnson's claim. The trial court agreed and struck Johnson’s malicious prosecution claim as an improper strategic lawsuit against public participation (“SLAPP”). The trial court also ruled that Johnson failed to present sufficient facts to support her emotional distress claims. Plaintiff appealed the trial court's ruling. Lena J. Marderosian, Esq. of Bradley & Gmelich successfully argued this matter before the Court of Appeal Fourth Appellate District on behalft of SOI and its two security officers.
The Court of Appeal upheld the lower court’s rulings. In ruling on an anti-SLAPP motion, the trial court must decide whether the defendant has shown that the challenged cause of action arises from protected activity; and whether the plaintiff has sufficient evidence to demonstrate a probability of prevailing on that claim. The Court of Appeal found that SOI’s act of contacting the police regarding Johnson’s suspected crime was protected activity. While false arrest claims do not arise from protected activity, Johnson did not allege a false arrest cause of action against SOI. Also, the Court of Appeal found that Johnson failed to show a lack of probable cause for SOI’s conduct, as Johnson had no receipt for the firewood she supposedly purchased, and that the Ralphs cashier had no recollection of Johnson paying for it.
As to the emotional distress action, the Court recognized that a plaintiff must first show “outrageous conduct by the defendant” to justify such a claim. SOI’s conduct was not outrageous, as SOI had probable cause to detain Johnson, and Penal Code Section 490.5 allows a merchant to detain a person for a reasonable time to investigate whether a person has unlawfully taken merchandise. Although the SOI employees supposedly told Johnson as she was escorted out of the store, “that’s what you get” and “you’re not welcome to shop here anymore,” the Court explained that mere insulting language does not constitute outrageous conduct.
With this decision, private security companies and shop owners should feel comfortable in instructing their employees to contact local police departments to report possible shoplifting or other crimes they have witnessed. However, they should still be cautious in instructing employees on whether to detain a person suspected of a crime. Further, even though the Court held that insulting language, by itself, will not subject a company to a claim for intentional infliction of emotional distress, it would be prudent to train employees to maintain a reasonable level of professionalism when interacting with a potential suspect.
After Johnson successfully defended herself against the shoplifting charges in criminal court, she sued Ralphs and SOI for malicious prosecution, negligence, and infliction of extreme emotional distress. Bradley & Gmelich represented SOI and its two security officers, and filed a motion to dismiss Johnson's claim. The trial court agreed and struck Johnson’s malicious prosecution claim as an improper strategic lawsuit against public participation (“SLAPP”). The trial court also ruled that Johnson failed to present sufficient facts to support her emotional distress claims. Plaintiff appealed the trial court's ruling. Lena J. Marderosian, Esq. of Bradley & Gmelich successfully argued this matter before the Court of Appeal Fourth Appellate District on behalft of SOI and its two security officers.
The Court of Appeal upheld the lower court’s rulings. In ruling on an anti-SLAPP motion, the trial court must decide whether the defendant has shown that the challenged cause of action arises from protected activity; and whether the plaintiff has sufficient evidence to demonstrate a probability of prevailing on that claim. The Court of Appeal found that SOI’s act of contacting the police regarding Johnson’s suspected crime was protected activity. While false arrest claims do not arise from protected activity, Johnson did not allege a false arrest cause of action against SOI. Also, the Court of Appeal found that Johnson failed to show a lack of probable cause for SOI’s conduct, as Johnson had no receipt for the firewood she supposedly purchased, and that the Ralphs cashier had no recollection of Johnson paying for it.
As to the emotional distress action, the Court recognized that a plaintiff must first show “outrageous conduct by the defendant” to justify such a claim. SOI’s conduct was not outrageous, as SOI had probable cause to detain Johnson, and Penal Code Section 490.5 allows a merchant to detain a person for a reasonable time to investigate whether a person has unlawfully taken merchandise. Although the SOI employees supposedly told Johnson as she was escorted out of the store, “that’s what you get” and “you’re not welcome to shop here anymore,” the Court explained that mere insulting language does not constitute outrageous conduct.
With this decision, private security companies and shop owners should feel comfortable in instructing their employees to contact local police departments to report possible shoplifting or other crimes they have witnessed. However, they should still be cautious in instructing employees on whether to detain a person suspected of a crime. Further, even though the Court held that insulting language, by itself, will not subject a company to a claim for intentional infliction of emotional distress, it would be prudent to train employees to maintain a reasonable level of professionalism when interacting with a potential suspect.
Wednesday, January 25, 2012
HISTORY OF PRIOR ACCIDENTS ON PROPERTY EXCLUDED FROM EVIDENCE IF THERE HAS BEEN A SUBSTANTIAL CHANGE IN CONDITION OF PROPERTY
In Ceja v. Department of Transportation (issued December 19, 2011) the Appellate Court held that the history of incidents on property prior to a substantial change of the property may be properly excluded from evidence, as they have no tendency to prove the existence of a dangerous condition.
In May 2003, Gerardo Ceja (“Ceja”) was driving his vehicle northbound on Route 99 when he crossed the median and struck two southbound vehicles. Both Ceja and his passenger, Simon Olivarez (“Olivarez”), died in the collision. Ceja’s and Olivarez’s surviving family members sued the Department of Transportation (“DOT”) for wrongful death damages, alleging that the lack of a median barrier created a dangerous condition.
In 1994, the portion of Route 99 where the incident occurred had been reconfigured from a four-lane highway to a six-lane highway. The DOT requested the Court exclude evidence of four accidents that had occurred in the same area before the 1994 reconfiguration on the grounds that the physical condition of the area had substantially changed. After the trial court granted the DOT’s request, the jury entered a verdict in favor of the DOT. Ceja’s and Olivarez’s family members appealed.
The Court of Appeal upheld the trial court’s decision to exclude evidence of the pre-1994 accidents. In deciding whether a dangerous condition of property exists at the time of a given accident, a trial court has the discretion to admit evidence of prior accidents where the conditions existing at the time of the those accidents are similar. However, there must be proof that there was “no substantial change” during the time between the prior accidents and the accident being considered in a present lawsuit. In this case, the Court of Appeal found that the expansion of the highway nine years before the accident resulted in a “substantial change” in the property. As a result, evidence of accidents on the four-lane highway prior to 1994 was inadmissible, as those accidents would not tend to prove that the existing six-lane highway was dangerous in 2003.
While the Court of Appeal applied this reasoning to an incident on a public road, this decision should be applicable to situations involving private property, as well. The holding here is a victory for property owners in that not every incident that occurs on their property will be deemed relevant to prove the existence of a dangerous condition. If modifications have been made between the time that prior incidents occurred and the time of the incident upon which a present lawsuit is based, it is likely that the prior incidents will be successfully excluded from evidence.
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