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Appellate Webinar CA Supreme Court 4-29 2015_PUBLIC_versionKirk Jenkins
The California Supreme Court will decide several cases in 2015 related to arbitration. In Sanchez, the Court will determine whether the Federal Arbitration Act preempts state rules finding arbitration clauses unconscionable. In Sandquist, the Court may decide whether courts or arbitrators have authority to determine if an agreement allows for class arbitration. The Court is also considering asbestos liability cases that could impact duties owed for secondary exposure and raw material suppliers' duty to warn.
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In an issue of apparent first impression in New York, an appellate court has found that an ambiguity existed in an
insurance policy as to losses resulting from a backup and/or overflow from sewers, drains, and/or plumbing systems.
Here are the answers:
(i) No, the Court of Appeal (Criminal Division) cannot depart from the previous decision of the Court of Appeal (Civil Division) as the divisions do not bind each other.
(ii) Yes, the Court of Appeal (Civil Division) can depart from its own previous decision using one of the exceptions - it could argue the previous decision was made per incuriam or it could distinguish the facts of the new case.
(iii) Yes, the Court of Appeal (Criminal Division) is not bound by decisions of the House of Lords and can depart if it believes a decision is out of date or no longer reflects the current law, as it has happened in precedent like Fitzsim
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Whether regulatory authorities should make submissions as to the appropriate ...Russell_Kennedy
This presentation will:
- Explore implications for High Court decision in Barbaro
- Canvass consideration by federal courts and VCAT to date
- Highlight issues and implications for civil penalty proceedings
- Posit a way forward
Posted by Emma Turner, Special Counsel and Anita Courtney, Associate at Russell Kennedy Lawyers
Appellate Webinar CA Supreme Court 4-29 2015_PUBLIC_versionKirk Jenkins
The California Supreme Court will decide several cases in 2015 related to arbitration. In Sanchez, the Court will determine whether the Federal Arbitration Act preempts state rules finding arbitration clauses unconscionable. In Sandquist, the Court may decide whether courts or arbitrators have authority to determine if an agreement allows for class arbitration. The Court is also considering asbestos liability cases that could impact duties owed for secondary exposure and raw material suppliers' duty to warn.
NY Appeals Court Finds Ambiguity as to Losses Resulting from Backup or Overfl...NationalUnderwriter
In an issue of apparent first impression in New York, an appellate court has found that an ambiguity existed in an
insurance policy as to losses resulting from a backup and/or overflow from sewers, drains, and/or plumbing systems.
Here are the answers:
(i) No, the Court of Appeal (Criminal Division) cannot depart from the previous decision of the Court of Appeal (Civil Division) as the divisions do not bind each other.
(ii) Yes, the Court of Appeal (Civil Division) can depart from its own previous decision using one of the exceptions - it could argue the previous decision was made per incuriam or it could distinguish the facts of the new case.
(iii) Yes, the Court of Appeal (Criminal Division) is not bound by decisions of the House of Lords and can depart if it believes a decision is out of date or no longer reflects the current law, as it has happened in precedent like Fitzsim
This document summarizes key aspects of pretrial and trial procedures discussed in Chapter 10. It describes the hearings that take place after arrest to determine probable cause for charges. It also discusses the types of bail, plea bargaining which resolves most cases, and the trial process including jury selection and the order of steps followed in a criminal trial.
"Mediation is a meaningful and successful way to resolve a lawsuit or significantly narrow the disputed issues, but counsel’s commitment to the mediation process is critical. Here’s our view on the top ten ways to inadvertently submarine your mediation." From Shelley Leinicke and Art Garcia.
The document discusses the power of the House of Lords and exceptions to precedent. It explains that the Court of Appeal is bound by its own previous decisions and by House of Lords decisions, but can distinguish or overrule lower court decisions. There are three exceptions where the Court of Appeal can depart from its own precedent: if the previous decision was made in error, if it conflicts with a later House of Lords decision, or if there are conflicting Court of Appeal decisions. The document also discusses whether judges create law or state existing law and considers advantages and disadvantages of the precedent system.
This document discusses the goals of punishment and sentencing. It outlines several goals of punishment, including general deterrence, incapacitation, specific deterrence, retribution, rehabilitation, equity/restitution, and restoration. It then discusses different sentencing models like determinate vs indeterminate sentencing and factors that affect sentencing decisions. It finishes with an overview of capital punishment, including current execution numbers, DNA evidence challenges, and arguments for and against the death penalty.
Whether regulatory authorities should make submissions as to the appropriate ...Russell_Kennedy
This presentation will:
- Explore implications for High Court decision in Barbaro
- Canvass consideration by federal courts and VCAT to date
- Highlight issues and implications for civil penalty proceedings
- Posit a way forward
Posted by Emma Turner, Special Counsel and Anita Courtney, Associate at Russell Kennedy Lawyers
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Intellectual property matters have an indisputable link to competitive advantage. Our 2015 Patent Litigation Study provides a comprehensive analysis from a database of US patent infringement actions, which includes data from 1995 through 2014. The observations and trends identified in our analysis can help executives, legislators, and litigators assess their patent enforcement or defense strategies.
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1) Contacting and compensating former employees can present legal and ethical issues for attorneys unless they are careful. In movies, former employees conveniently provide key evidence, but in reality attorneys must work to locate and convince them to cooperate.
2) Class action lawsuits are intended to enable individuals with small claims to collectively pursue litigation but often result in large payouts to attorneys while providing little compensation to class members. Studies show that in many cases where small cash amounts are awarded to large consumer classes, only a small percentage of class members actually receive settlement funds.
3) Reforms have been proposed to address issues like attorneys bringing class action suits primarily for their own financial gain while providing little benefit to class members. Suggest
This document summarizes an appeal hearing regarding a previous employment tribunal case.
1) The appellant alleged discrimination on the grounds of race and disability by her employer. The previous tribunal largely rejected her claims over 10 days of evidence. The appeal argues the previous tribunal made errors in its findings.
2) Three grounds of appeal are argued: that certain acts found to be out of time should have been seen as continuing acts; that the tribunal failed to properly consider the duty to make reasonable adjustments for disability under the Disability Discrimination Act; and that the tribunal was biased against the appellant in its findings.
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The SEC has announced a policy shift where it will now require admissions of wrongdoing from defendants in some enforcement cases, particularly those involving widespread investor harm or egregious misconduct. This change could impact companies in several ways: (1) it may discourage cooperation and settlements if defendants are unwilling to admit wrongdoing, leading to more litigation; (2) it could prolong returning funds to investors if more cases go to court; and (3) it may have unintended consequences for the SEC by tying up more resources in litigation. However, the SEC hopes this new policy will increase accountability and deterrence, though it remains to be seen if the benefits outweigh the costs.
This document is a plaintiff's ex parte application for a temporary restraining order and preliminary injunction against the Antelope Ground Water Agreement Association (AGWA) and their attorneys. The plaintiff, representing a certified class, seeks to restrain AGWA from communicating with or soliciting absent class members about issues related to the class action. The plaintiff argues that AGWA has already held meetings with class members without the consent or knowledge of class counsel, and intends to hold another meeting during the class notice period, which could confuse class members. The plaintiff believes they are likely to succeed on the merits since AGWA, knowing the class members are represented, has communicated directly with them in violation of ethical rules. A restraining order is necessary to prevent
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This document discusses factors to consider when selecting a venue for patent infringement litigation. It analyzes data on win rates, trial rates, time to trial, and damage awards in various districts from 2000-2010. The Eastern District of Texas, District of Delaware, and District of New Jersey emerged as top "pro-patent" venues due to high win rates and likelihood of trials leading to quick injunctions or settlements. However, these venues did not necessarily yield the highest damage awards. The document advises weighing multiple factors in venue selection.
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Similar to Appellate Webinar CA Supreme Court 4-28-2015 (20)
2. The California Supreme Court
What to Expect in 2015
Kirk C. Jenkins
Hall R. Marston
Michael M. Walsh
Sedgwick LLP
3. Thank you for logging in to the webinar. A few housekeeping items:
To ask a question, please use the chat box at the left of your screen. We will get to
as many questions as we can and will follow up with you individually if we do not
get to your question today.
Sedgwick LLP is an accredited MCLE provider in CA, IL, NJ, NY, FL and TX. The
webinar is approved for CLE as follows:
• CA and IL – 1.0 hour of general CLE credit
• NJ – 1.2 hours of general CLE credit
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may not earn NY credit for this non transitional CLE program.
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If you are seeking CLE, please listen for two codes. To receive credit you will need
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Please email amy.beecham@sedgwicklaw.com if you did not receive a copy of the
form.
4. The Supreme Court Data Library
• The Superior Court (county of origin;
trial judge)
• The Court of Appeal (District &
division; Decision coding; dissents;
publication; jurisdiction)
• The Supreme Court (Area of the law;
time under submission; result and
vote; length of opinions; number of
amici; Justice-by-Justice data,
including vote, decision coding,
opinion joined, recusals; Counsel
arguing)
6332000 - 2014
CIVIL CASES
43DATA POINTS
PER CASE
34,000+DATA POINTS
15. Factual Summary
Plavix product liability
against manufacturer
Non-California plaintiffs come
from 32 different states; all
prescribed Plavix by out of state
physicians; all bought, consumed
and were injured outside
California.
8SEPARATE COMPLAINTS FILED
84 CALIFORNIA PLAINTIFFS
13%
575 NON-CALIFORNIA
PLAINTIFFS
87%
BMS presence in California
1.3 %
250
1.1
of its U.S. employees
sales representatives
of U.S. sales revenue
comes from California.
%
16. Procedural History
Filed in state court but because California distributor named
case was not removable.
Trial court denied motion to quash service of summons finding
general jurisdiction.
Court of Appeal reversed, on writ review, finding no general
jurisdiction under Daimler, but affirmed on other grounds:
there was specific jurisdiction over the non-California plaintiffs
because of the California nexus between Plavix and BMS.
Petition for review to Supreme Court granted: issues presented:
for the non-California plaintiffs whether there was general
jurisdiction over BMS with respect to Plavix claims, and
whether there was specific jurisdiction.
17. Why is this a big deal?
Ability of experienced products liability counsel to recruit
plaintiffs/clients concentrates tremendous clout in hands of few.
Plaintiffs often resist federal forum; defendants frequently
prefer federal forum.
Through naming a local defendant, and filing for some local
plaintiffs, plaintiffs’ counsel can defeat removal and shop for a
forum with the greatest perceived advantage, regardless of
jurisdictional limitation in the context of any multi-national
corporation with sales in the forum state.
Poses a huge burden on under-funded courts in California,
where over 85% of plaintiffs are foreign and for whom California
has no interest in resolving their disputes.
18. What will the Supreme Court do?
On general jurisdiction, Daimler—where is the corporation “at
home”—appears to foreclose the exercise of jurisdiction.
Recent changes to the make-up of the court suggest a shift to
a more liberal and hence plaintiff-friendly jurisprudence.
However, the financial pressures under which the California
courts operation are profound, slowing down average rates of
dispositions in some counties by years.
19. Carnac says “No finding of specific jurisdiction over
non-California plaintiffs (the CAFA issue is looming in
the background).”
20. Asbestos
Kesner v. Superior Court, S219534
(opinion below 226 Cal.App.4th 251)
Haver v. BNSF Railway Co., S219919
(opinion below 226 Cal.App.4th 1104)
Webb v. Special Electric Co., Inc., S209927
(opinion below 214 Cal.App.4th 595)
21. Asbestos remains a hot topic
After decades of litigation and 12 years after the last U.S. mine
closed, the scope of asbestos liability is still being defined.
Kesner and Haver
• Does an employer who uses or manufactures asbestos-
containing products owe a duty to employee’s family?
Webb
• Can a supplier of raw asbestos be liable in tort for a failure to
warn?
Each of these cases is fully briefed and waiting for oral argument.
22. Does an asbestos using employer owe a
duty of care to worker’s family members?
Kesner v. Superior Court – yes, under a products liability
theory if the employer produces asbestos products
Haver v. BNSF Railway Co. – no, if the employer only uses
asbestos products, i.e. a premises liability theory
Other Courts of Appeal have addressed the duty for a
secondary toxic exposure
• The consensus: A mere premises owner has no such duty
(Campbell, Haver, Oddone, Beckering), but the
manufacturer of a toxic product (like asbestos) might
(Kesner, Bettencourt)
• Echoes of workers compensation and dual capacity (Bell)
23. Determining duty re secondary exposure;
the major Rowland v. Christian factors
When charting new ground on duty, the courts invoke Rowland
on general principles establishing duty:
(1) foreseeability of harm to the plaintiff;
(2) the degree of certainty plaintiff suffered injury;
(3) the closeness of the connection between the
defendant’s conduct and the injury suffered;
(4) the moral blame for defendant’s conduct;
(5) the policy of preventing future harm;
(6) the burden on defendant and consequences to the
community of imposing such a duty; and
(7) the availability, cost, and the prevalence of insurance for
the risk involved.
24. Webb – Does a raw asbestos supplier
have a duty to warn individual users?
What about sophisticated intermediaries?
• A divided Webb panel disregards this, finding a question of
fact as to “whether reasonable efforts to warn downstream
users could have been undertaken.”
Warning what they already know about?
• Webb also found a potential issue in whether the raw
asbestos supplier provided inadequate warnings to a
sophisticated intermediary who admittedly knew about
asbestos.
Asbestos is a “defective product”
• This prevents a raw suppler from relying on the bulk
supplier/component parts doctrine.
25. Webb - Sophisticated or Learned
Intermediary Doctrine
Will the Supreme Court finally weigh in?
• While the Supreme Court has affirmed the Sophisticated or
Learned Intermediary Doctrine for medical products, it has
yet to opine on this doctrine in other contexts.
The Court has a potential way to back out.
• There is a procedural issue in Webb over the trial court
turning a pre-trial motion for non-suit into a JNOV without
sufficient notice to plaintiff, so the Supreme Court could
dodge the sophisticated intermediary issue.
27. Factual summary
Plaintiff/patient sued defendant hospital for general
negligence and premises liability
Plaintiff alleged she was injured when her bed rail collapsed,
causing her to fall to the floor
28. Procedural history
Hospital successfully demurred on statute of limitations
grounds
Trial court held that ensuring that a patient’s bed rails are
properly adjusted and latched arises from a duty stemming
from professional services.
Court of Appeal reversed: Because the patient alleged that
the bed rail collapsed it was ordinary negligence since there
was a duty to use reasonable care in maintenance and
inspection of equipment.
2
yrs LIMITATIONS PERIOD
FOR PERSONAL INJURY
DUE TO NEGLIGENCE
1
yr
LIMITATIONS PERIOD FOR
PROFESSIONAL MEDICAL
MALPRACTICE
29. Why Supreme Court granted review?
The intermediate appellate opinions have been in conflict
since 1975 (there were at least a half a dozen published cases
on the subject since).
Flores followed an intermediate appellate opinion written
before enactment of legislation to limit malpractice liability.
Outcome will trigger, in all likelihood, a different type of
liability coverage, thereby defeating the legislative intent of
limiting healthcare provider liability (resulting in higher costs
to patients and premium payers).
Outcome also triggers a different, unlimited, measure of
damages for pain and suffering.
30. What will Supreme Court do?
Amici participation from consumer groups and hospitals.
New make-up of the Court may indicate why review was
granted now rather than on earlier opinions.
The Court of Appeal opinion hinged on the characterization of
the facts, masking the fundamental issue: when a hospital is
treating a patient, can there be a dividing line between
professional services and a general, nonprofessional duty of
care?
32. ADR Issues continue to occupy
the Court
Sanchez v. Valencia Holding Co. LLC, S199119
(opinion below 201 Cal.App.4th 74)
Sandquist v. Lebo Automotive, Inc., S220812
(opinion below 228 Cal.App.4th 65)
Gaines v. Fidelity National Title Ins. Co., S215990
(opinion below 222 Cal.App.4th 25)
ADR Issues
33. Sanchez – the Supreme Court
returns to FAA Preemption
FAA Preemption and the California Supreme Court before
Sanchez
Sonic I (2011) and Sonic II (2013)—Sonic I held that an
administrative hearing could not be waived in an employment
agreement. In Concepcion (2011), the U.S. Supreme Court
found the FAA imposed a broad preemption. Sonic II then
reversed, but held the waiver could be struck as
unconscionable on a case-by-case basis.
Iskanian (2014)— Class action waivers in employment
agreements are enforceable under Concepcion, but the
Supreme Court held that representative actions under the
Private Attorney General Act could not be waived.
34. Sanchez – the Supreme Court
returns to FAA Preemption (cont.)
Sanchez v. Valencia Holding Co. LLC— Addresses whether the
FAA, under Concepcion, preempts state rules invalidating
mandatory arbitration provisions in a consumer contract as
procedurally and substantively unconscionable.
Sanchez Oral Argument Set for May 5,
2015, so we can expect a decision by
August 2015.
35. How far does FAA Preemption go?
Sonic II relied on the general contract principle of
unconscionability to strike waivers in arbitration agreements,
avoiding Concepcion’s preemption of laws that specifically
burden arbitration.
In Sanchez the Supreme Court requested additional briefing
on when a contract term is unconscionable; and the Court of
Appeal found the arbitration provisions both substantively
and procedurally unconscionable.
The question now is probably scope – will the Supreme Court
require a more rigorous factual showing of unconscionability,
or establish broad findings that are easily applied to pro forma
consumer purchase agreements?
36. Sandquist – Who decides whether class
arbitration is waived?
The Arbitrator: The arbitrator decides procedural issues,
including whether a class action is available. This is the
majority rule, following Bazzle, a plurality U.S.S.C. decision.
The Court: Availability of class actions decides whose claims
will be arbitrated, which should be decided by the court.
The Courts of Appeal are now split on
this issue; Sandquist supports majority
rule, and a grant and hold (Network
Capital) supports the minority.
Sandquist is fully briefed and waiting for argument.
37. Gaines – Effect of mediation stay on
5-year trial deadline?
What constitutes a “partial stay”?
• In Bruns (2011), the Supreme Court held that a partial stay,
(e.g., a discovery stay), does not toll the 5-year deadline.
• In Gaines, the court stayed all litigation but for responding
to pending discovery requests, pending mediation.
Why is the Court addressing a fact-specific question over
implementing its recent Bruns ruling?
The issue in review focused on a stay for purposes of
mediation, so it appears the Court may be reconsidering
Bruns to better support mediation efforts.
38. Cordova v. City of Los Angeles
Supreme Court case no.: 208130
Rev. granted: 3/20/13
39. Factual summary
Wrongful death action against the City of Los Angeles.
Decedents’ car, driven by an unlicensed driver, was traveling
at 68 miles per hour on a surface street in the lane closest to
the center meridian, where the speed limit was 35 miles per
hour.
Another driver, traveling at 66 miles per hour in the next lane,
side-swiped the decedents’ car, forcing it onto the meridian
where it crashed into a large tree.
The allegation was that the roadway was defectively designed
and maintained because it did not have a “clear zone,” which
is an area that must be unobstructed to allow drivers to
remain on the roadway.
40. Procedural history
City moves for summary judgment.
• The speed limit was set by a survey showing 85% of the
vehicles moved at roughly that speed.
• An expert opined that the design conformed to the City’s
Bureau of Engineering plans.
• The tree, although not part of the design, was readily
apparent to attentive drivers.
• “Clear zone” standards do not apply in urban setting,
primarily due to the relatively slow rate of speed of non-
negligent traffic.
• The tree was an appropriate distance from the curb, and
provided other benefits.
41. Procedural history
Plaintiffs’ opposition:
• The tree had scars, indicating prior impacts with vehicles.
Trees are the second most commonly hit fixed objects on
roadways.
• Highway Patrol reported 142 accidents in that stretch of
road, 32 were side-swipe accidents, resulting in four other
fatalities.
• According to national standards, objects of 4-6 inches
should not be placed in “clear zones.” In planting trees on
meridians, City does not consider effect of potential impact
with vehicles.
• Thus, the accident was foreseeable.
42. Procedural history
Trial court granted the motion: a tree was not a dangerous
condition, the accident was caused by the other driver’s
criminal conduct, and “clear zones” were bad policy. The court
excluded much of plaintiffs’ evidence.
43. Court of Appeal opinion:
• Affirmed.
• The tree was not a dangerous condition as a matter of law
because the tree did not cause the other driver’s
negligence.
Issue on which Supreme Court granted review:
• May a government entity be held liable if a dangerous
condition of public property existed and caused the injuries
plaintiffs suffered in an accident, but did not cause the
third party conduct that led to the accident?
44.
45. Lee v. Hanley, S220775
(opinion below 227 Cal.App.4th 1295)
Hartford Casualty Ins. Co. v. J.R. Marketing, L.L.C.,
S211645
(opinion below 216 Cal.App.4th 1444)
Attorney’s Fees
46. Lee – When is an attorney performing
“professional services”?
C.C.P. § 340.6: 1 year to bring an action, other
than for fraud, “arising in the performance of
professional services”
Previous cases have applied § 340.6 to disputes
over unconscionable fees (Levin) the failure to
distribute settlement funds (Prakashpalan), and
against non-clients in malicious prosecution
actions (Yee, but see Roger Cleveland).
Note:
the legislative
history would
possibly limit
this to only
malpractice
actions.
Lee: “the performance of professional services” does not
include converting a client’s money after the case is over.
The matter is fully briefed and waiting for oral argument.
47. Hartford Casualty Ins. Co. – Can an insurer get
reimbursement from independent counsel?
The court upheld orders (1) requiring Hartford
to pay independent counsel fees, (2) barring
reliance on CC §2860, and (3) denying motion
to disqualify counsel.
Hartford sought reimbursement of excessive
fees directly from counsel, alleging contract and
quasi-contract theories.
Held: Hartford only has right or reimbursement
from insured, but it has no relationship with
independent counsel on which to base a claim.
Scope of Bass?
This was set for oral argument on May 5, but is
being rescheduled.
Note:
Court of Appeal
expressly
excluded issue
of whether a
direct suit was
allowable for a
claim of
fraudulent
billing
practices.
48. State Dept. of State Hospitals v.
Superior Court
Supreme Court case no.: S215132
Rev. granted: 2/11/14
49. Factual summary
Wrongful death action arising from murder of plaintiff’s sister
by recently released inmate, incarcerated for rape.
Four days after his release from prison, the inmate raped and
murdered plaintiff’s 15 year old sister.
Plaintiff alleged defendants breached a mandatory duty by
failing to have the inmate fully evaluated by two psychiatrists
or psychologist as required by California’s Sexually Violent
Predators Act.
Plaintiff alleged that had the inmate not been unlawfully
released, her sister would have been alive today.
50. Procedural history
Defendants—State Dept. of State Hospitals, and former
directors of agency—demurred on grounds that the complaint
failed to state causes of action against them because of
sovereign immunity for failure to perform discretionary acts.
Trial court overruled the demurrer.
Defendants sought a writ of mandate to compel trial court to
vacate ruling.
Writ granted by Court of Appeal because of significant legal
issues concerning sovereign immunity.
Court of Appeal held: (1) Defendants were not immune
because duty to properly examine inmate was mandatory not
discretionary, but (2) Plaintiff could not as a matter of law
prove causation.
51. Why was review granted?
Questions presented: (1) Did the State perform a full
evaluation of the inmate as required by statute? (2) Did the
Court of Appeal err as matter of law in holding plaintiff could
not prove causation?
The petition for review claimed that thousands of inmates
convicted of sexual crimes have been released on only a “file”
review, rather than a full evaluation including “in person”
evaluations. The Court of Appeal rejected this as a basis of
liability.
Petition also cited conflicts of authority on “full evaluation”
point.
No amicus participation.
52. What will Supreme Court do?
A Supreme Court opinion—Landeros v. Flood—held that
causation in a case where defendants failed to report
suspected child abuse under a California statute could not be
determined as a matter of law.
Given swing to the left on the Court, reversal is expected.
Case was argued in early March, 2015; expect decision by
early June.
53.
54. Shaw v. Superior Court, S221530
(opinion below 229 Cal.App.4th 12)
deSaulles v. Community Hosp. of the Monterey
Peninsula, S219236
(opinion below 225 Cal.App.4th 1427)
Procedural Issues
55. Shaw – Can a right to a jury trial be
decided by writ of mandate?
The trial court ruled there was no right to a jury trial, but
responding to a writ petition, the appellate court disagreed.
In Nessbit (1931), the Supreme Court ruled that mandate was
not justified and that appeal was the proper means to test the
right to a jury.
A later appellate decision, Byram, reached a different result,
apparently unaware of Nessbit. Shaw agreed and tried to side
step Nessbit on its facts.
Apparently, the Court is reconsidering Nessbit, and may have
broader application to the proper basis for a writ petition.
This case is fully briefed and waiting for oral argument.
56. deSaulles – When a defendant pays for a
dismissal, who is the prevailing party?
Defendant: (1) won summary adjudication on one claim, (2)
paid for the dismissal with prejudice of two claims, and (3)
obtained a judgment for the rest, which noted the settlement
and stating that plaintiff shall take nothing.
Who is the prevailing party under C.C.P. § 1032?
• A defendant in whose favor a dismissal is entered.
• A defendant where neither plaintiff nor defendant obtains
any relief.
• A defendant when plaintiff does not recover any relief
against that defendant.
• The party with a net monetary recovery.
57. deSaulles finds plaintiff is the
prevailing party
The trial court found neither was entitled to mandatory costs
and awarded discretionary costs to defendant.
deSaulles found that the settlement, entered on the eve of
trial and in open court was “accomplished through the legal
process” and therefore counted as a “net monetary recovery.”
• Conflict with Chinn, which held that settlement monies
cannot be considered as part of a net recovery.
deSaulles also found defendant was not entitled to costs
because (1) the judgment was not a dismissal, (2) settlement
proceeds were relief plaintiff obtained against defendant.
This case is fully briefed and waiting for oral argument.
59. Factual summary
Solus, a plastics manufacturer, installed a water heater
intended for residential use which exploded killing two workers.
Cal/OSHA found the heater exploded because of a failed safety
valve and absence of other safety features due to manipulation
and misuse.
Cal/OSHA referred matter to district attorney who filed criminal
and civil charges.
The civil charges were brought under the state unfair
competition laws and sought civil penalties in an amount of up
to $2500/day per employee for a period of roughly 18 months
(about $2.74 million). Penalties under the state regulatory
scheme would have been roughly $100,000.
60. Procedural history
Trial court overruled Solus’ demurrer, but certified the
question for intermediate review.
Court of Appeal original denied Solus’ petition for a writ of
mandate, but was directed by Supreme Court to consider
petition on the merits.
Court of Appeal held in a published opinion that the civil
action was preempted by the federal OSHA statutory scheme.
Writ of mandate issued directing trial court to sustain
demurrer.
Second petition for review to Supreme Court granted on
question of whether federal law preempts the district
attorney’s civil action.
61. The preemption issue
Under the Supremacy Clause, the federal government has
power to preempt state law concerning matters within the
authority of Congress.
Preemption is either explicit or implied (where it is clear
Congress intended to occupy the whole filed by
comprehensive legislation, or where compliance with both
federal and state requirements is impossible, or where state
law obstructs accomplishment of Congress’ purposes).
Under federal OSHA, Congress directed the Secretary of Labor
to set mandatory standards for occupational safety and health
applicable to all businesses affecting interstate commerce.
62. The preemption issue (cont.)
• But, there are two exceptions: (1) Federal OSHA does not
supersede any state worker’s compensation law; and (2) A
State may submit a plan for the development and
enforcement of state standards.
Those standards must be at least as effective of
corresponding federal standards, and
The Secretary must approve the state plan and standards
(unless local conditions justify exceptions from the
federal standards).
63. Why did Supreme Court grant review?
California’s unfair competition law was enacted after the
Secretary approved California’s plan.
Thus, there has never been Secretary approval of using the
UCL as an enforcement mechanism for state-promulgated
safety regulations.
Unlike other California Supreme Court preemption cases,
OSHA permits state regulations only with approval, thus no
independent regulations (such as UCL enforcement) can be
established without Secretary approval.
Important state rights issues, important financial
consequences, and possibly one of the earliest indication that
the new make-up of the Supreme Court is expressing itself
and its priorities.
66. Questions?
Kirk C. Jenkins
Kirk.Jenkins@SedgwickLaw.com
Twitter: @KirkCJenkins
One N. Wacker Drive, #4200, Chicago, IL 60606
(312) 641-9050
Hall R. Marston
Hall.Marston@SedgwickLaw.com
Michael M. Walsh
Michael.Walsh@SedgwickLaw.com
801 S. Figueroa, 19th Floor, Los Angeles, CA 90017
(213) 426-6900
Appellate Strategist
Illinois Supreme Court Review
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