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Tort “Reform” Marches On at the Expense of Public Safety

I recently presented at a local law school about a great program run by the Diversity Committee of the San Francisco Trial Lawyers’ Association (SFTLA) aimed at bringing diverse young lawyers into the plaintiff bar.  I was speaking to students who were mostly in the 22-26 age range. One of them asked me about the effect of “tort reform” on my practice. Torts are civil wrongs not arising out of breach of contract, anything from a rear end auto collision to a failure to provide a safe stairway, which results in injury. Tort reform refers to efforts by political, business and insurance interests to limit the rights of injured people to recover fair damages for things like medical expenses, wage loss, pain and suffering and emotional distress. Tort reform is a dirty phrase to the plaintiff’s bar, and should also be considered bad news by the general public, since it threatens your ability to get fair compensation when someone else negligently (or intentionally) harms you. So I asked my assembled group of law students if they remembered George W. Bush giving the State of the Union address in the 2000s.  Not one hand was raised! I guess this made sense, as even a 25 year old in 2016 would have only been 15 in 2006, and may not have been watching what is usually a boring speech.  I told the students that every year without fail, the President of the United States had urged Congress to limit the rights of citizens to recover damages in “frivolous” lawsuits. This was at the behest of the business lobby, which was his donation base. Then I asked if anyone had heard of the McDonald’s “hot coffee” case.  Everyone raised his or her hand! This was fascinating, since that case occurred in 1994. The staying power of the Macdonald’s case is amazing.  It proves that a story resonates with the public far more than any number of speeches, web postings, or commercials. Tort reform often does well at the ballot box. In 1986, California voters approved Proposition 51, which basically cut in half the damages injured people can claim if they are injured by two or more negligent actors, but one of them is uninsured or inadequately insured. People (i.e., consumers) voted for Prop. 51 (now codified as Civil Code 1431.2) by a whopping margin of 62% versus 38% opposed.  This for a bill that cost the consumer big time.  But they believed what they were told– that lawsuits costs them money in the form of higher insurance premiums and higher prices charged by business. The notion that the threat of civil liability forces business to act more safely was ignored. Getting back to the McDonald’s case. Full disclosure: the following is partly cribbed from the website of Consumer Attorneys of California or CAOC (https://www.caoc.org/?pg=facts). The facts most people have heard are: In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered. Most people thought she was driving. In fact, Stella was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap. The coffee was, per McDonald’s policy served it at a temperature (180-190 degrees) that could cause serious burns in seconds. Stella’s injuries were far from frivolous. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns and required skin grafts on her inner thighs and elsewhere. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases. Stella initially offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly. But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. The punitive damage award was ultimately reduced by more than 80 percent by the judge. Ultimately, Mrs. Liebeck and McDonald’s reached a confidential settlement, believed to be less than $200,000. No one knows this last part. They remember the $3 million. There is a great list of all the facts the jury heard on CAOC website showing that McDonald’s knew its coffee was dangerously hot, but kept on selling it. Sort of like the Ford Pinto exploding gas tank in the 1970s, except no one died. They just got horribly burned.   There is also a great documentary film called “Hot Coffee” which address the McDonald’s case and three travesties of justice caused by tort reform. So what to make of all this?  If you are a consumer, do not assume that big business is looking out for you.  Business wants a frictionless environment, which means no civil liability– zero, zilch, nada. They will keep putting tort reform measures on the ballot until they get there.  One of their favorites is to limit damages injured people can recover (like Prop. 51, or the horrible medical malpractice legislation, which caps pain and suffering damages at $250,000 even if you’re rendered a quadriplegic due to medical error.) The other big impact of tort reform is that when I pick a jury, I always hear about the McDonald’s case and other so-called frivolous lawsuits from my jury panel....

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“The pedestrian always has the right of way”- true or false

By Chuck Geerhart I am handling more and more pedestrian injury cases.  There are a lot of cars, trucks, buses, bikes, and skateboards out there. Everyone is looking into his or her phone. It’s not surprising pedestrians are getting hurt all the time.  What are your rights and responsibilities as a pedestrian? Under the law, drivers must yield to pedestrians in most, but not all, circumstances. “The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian” California Vehicle Code § 21950(a & c) This section refers to intersections without illuminated traffic signals. Note the term “unmarked crosswalk.” We all know what a marked crosswalk looks like. An unmarked crosswalk runs between all streets (but not slender alleys) which meet at approximate 90 degree angles. Pedestrians have the right of way when crossing at an unmarked crosswalk. Pedestrians do not have the right to simply charge out into an intersection. “No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” CVC § 21950(b). Drivers approaching a crosswalk must stop if another vehicle ahead of them has stopped, even if they can’t see why the other vehicle has stopped.  Vehicle Code § 21951 provides: “Whenever any vehicle has stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle.”  By its plain language, this code section is not limited to intersections without traffic signals. I am handling a wrongful death case right now where a woman was crossing against a red light, but was in the crosswalk. One car stopped for her, but a car approaching from the rear did not. That car did not see her and killed her. The case is in litigation. Because a car is so powerful, pedestrians have a lesser duty of care.  California Civil Jury Instruction (CACI) 710 (Duties of Care for Pedestrians and Drivers) provides: “The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.”  

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A Pro Bono Victory

By Chuck Geerhart It was just another Saturday at the Bar Association of San Francisco’s Lawyer Advice and Referral Clinic (LARC) in the Bayview neighborhood of San Francisco. I’ve been volunteering at LARC for 21 years. I call it “bite size pro bono” because you don’t take on clients for representation– you simply try to answer their questions or refer them to a lawyer for further consultation.  But this day was different. A nice older couple came to my table. The man, let’s call him Edwin, had been sued for an injury auto accident in which one of the cars, a red Toyota Corolla, had struck and injured a person. It was a hit and run. A witness gave police a license number that belonged to Edwin.  Nationwide Insurance wound up paying $50,000 in uninsured motorist benefits to the injured person. Nationwide then sued Edwin for subrogation. As alleged owner of the car, he had liability up to $15,000 under the law. But here’s the rub: Edwin never owned a red Corolla. He had a green Honda Accord. The eyewitness got the plate wrong. Edwin was insured by Geico. He obtained a copy of a letter written by Geico to the injured plaintiff, in which Geico said there was no coverage for the vehicle which struck him. Geico never wrote any letters to Edwin, so he was in an information vacuum. Edwin, who is a Spanish speaker and not well-versed in the law, assumed he had no coverage. When Edwin did not answer the complaint, Nationwide took a $15,000 default judgment against Edwin. It then levied on his bank accounts and seized $11,000.  At this point, Edwin, who owned a home, realized he had to get legal help. Through a legal insurance plan offered by his wife’s work, he found a lawyer. Unfortunately, the “legal insurance” only paid the first $400. The lawyer charged Edwin $10,000 to have the default set aside. He then wanted another $6000 to defend Edwin in the ongoing Nationwide lawsuit. The family couldn’t pay that. As I heard their tale of woe, the wheels were turning in my head. They obviously needed a lawyer to defend them. But there was no money in this case- they’d already spent their savings on lawyer #1, and their other savings had been seized by Nationwide. Nationwide had discovery (interrogatories) pending that needed to be answered.  In short, it was doubtful any lawyer would take this case on short notice. Unless I took it. I had the time, I wanted to help, and I know auto insurance claims. So after just a little hesitation, I said to Edwin and his wife, “I’m going to be your lawyer.” She burst into tears. I realized I had helped relieve them of unbearable pressure, at least temporarily. That felt good. The next week, I had them sign a fee agreement stating my work would be free unless there was a way to recover fees from someone else.  I then contacted Geico and demanded they provide a defense, even if they disputed coverage. I wrote to the Nationwide lawyer and demanded they refund the $11,000 that had been seized. To my surprise, Nationwide promptly refunded all the seized funds. I also answered Nationwide’s discovery and propounded discovery to Nationwide.  The Nationwide lawyer said he would consider dropping the case if it was truly a case of witness misidentification. Then, a few weeks later, Geico agreed to provide a defense, and assigned defense counsel. I stayed on as associated counsel to push Geico to pay the $10,000 in attorney fees the first lawyer charged. Geico kept asking for proof this amount had been paid under a fee agreement. I continued to harass Geico, telling its claims people that Geico was already in bad faith– would Geico like to do something right for a change?  After three months, Geico finally sent a check for the full amount of attorney fees incurred. It was a pleasure to inform the family they were getting back to even monetarily.  The only thing remaining is for the Nationwide suit to be dismissed, which I’m sure assigned defense counsel can achieve.  I will remain in the case to monitor that result. Although I probably could claim a fee from Geico, I don’t want it. My reward is the gratitude of my clients. I could go on endlessly about how Edwin was poorly served by the lawyer he hired– it borders on malpractice and an ethics violation.  First, the lawyer overcharged. The $15,000 judgment probably could have been settled for half its value. Second, he never tried to get Geico to pick up the defense, which we know it would have. Third, after getting the default set aside, he never asked Nationwide for a refund. Instead he asked the clients for more money. But let me end this piece on a positive note. This case gave me as much pleasure as any multi-million dollar case I’ve ever handled.  I was helping real people who were in a jam that was real and big for them. I was righting a legal wrong. I was correcting bad lawyering. I fought a big insurance carrier. It doesn’t get any better than this. I urge everyone to do pro bono work– either full representation as in this case, or “bite size” in a legal clinic. It’s not only a moral responsibility for us who have been given so much, it’s a pleasure.  If you’re intrigued about doing pro bono, please call me to get started.  

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Don’t get beaten up by an assault case

Plaintiff Magazine Article   How to decide whether to take on these challenging cases, and a game plan for when you do If your practice is like mine, you get calls from prospective clients who have been assaulted by someone. If it’s simply a case of “some guy attacked me in the street,” the case probably has no recover-able damages. I do not spend much time talking to these folks. Even if the perpe- trator has assets, it can be difficult reaching them. If it’s a case of “my neighbor assaulted me,” you might think there would be homeowner’s coverage. See the PDF article below Geerhart_Do-not-get-beaten-up-by-an-assault-case_Plaintiff-article

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Can I Sue for Assault?

By Chuck Geerhart One of the most common calls we receive at Paoli & Geerhart is about assault. Often, a person has been suddenly assaulted in the street. Or by someone in the home. Or by a landlord, a bar bouncer, or another bar patron.  Are these types of cases worth pursuing?  The answer is,  “It depends.” First, the threshold question: Is there money available? There is no sense pursuing an assault case if there is no source of funds to pay a settlement or judgment.  So, in the common case of assault on the street, I usually tell clients to forget it. The kind of lowlife who commits a brazen street assault has probably not been successful in life, and has no money. I also get calls where the client says the assailant has a house, a nice car, a job, or other assets.  This is nice to know, but you’re probably never getting any personal assets even if you win at trial. Those assets will scatter with the wind. Or the perpetrator will declare bankruptcy, which usually has the effect of discharging your trial judgment completely. Another thing to consider: most lawyers working on a contingent fee basis do not want to have to become collection attorneys after getting a judgment.  So finding a lawyer for the average assault on the street case will be difficult, no matter how badly hurt you are. What about insurance?  Insurance by law cannot cover intentional acts, like assault. See Insurance Code sec. 533.  Insurance can cover negligence of a premises owner, as discussed below. So what is a “good” assault case?  Sorry to say, but you need a major injury. Bumps and bruises alone do not make a good assault case, because these cases are expensive. There will be a summary judgment motion (where the defendant tries to have to court dismiss the case), which often takes 30 or 40 hours of attorney time to oppose. There will be medical and liability experts, which can cost tens of thousands of dollars.  I generally do not take assault cases unless there are broken bones with surgery, or a brain injury. These are the kinds of injuries that can result in a large verdict or settlement. Smaller cases are not cost effective, and often results in a net monetary loss. As a matter of practical economics, I cannot keep my law practice open to help others if I take losing cases. Let’s assume you have a major injury case.  Next we need some source of settlement funds. Here’s a classic good case: a Walgreens employee assaults a customer. Walgreens is liable for the torts of its employee. California law has consistently held that fights or assaults in the workplace are generally within course and scope of employment (respondeat superior). See Rodgers v. Kemper Construction, 50 Cal.App.3d 608 (1975) [upholding tort liability of an employer for an assault committed by an employee on a construction site]. Although insurance will not cover an intentional tort, a self-insured corporate employer (like Walgreen’s) is usually financially responsible and can pay. Another decent scenario is where a bar bouncer injures a customer. This may be covered by insurance as negligence. It should go without saying that the customer must be pure as the driven snow– not drunk or belligerent.  If the customer was acting up and forced the bouncer to get involved, he could be found partially or totally at fault. A 3rd common scenario is where another bar customer assaults the client. The key here is what kinds of controls were in place to avoid the assault. Did the bar over serve alcohol to the assailant? Was the assailant a minor who shouldn’t even have been in the bar?  Was the bar (or nightclub or arena) understaffed? How long did the assault take to develop? The longer the better, because it means the staff should have stopped the growing conflict.  Did the bar take reasonable steps to ensure the safety of its patrons? The leading case in this area is Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224. In the bar assault case, there may be insurance available, but often the bar has not purchased the right kind. I always look to others for possible insurance, such as the security company or the event planner or DJ. To summarize, even if you have a major injury and a source of settlement funds, a liability finding is almost never certain in assault cases. I have been able to settle every assault case, but only because I was careful in case selection. For more detailed legal information on how to approach assault cases, please see my article “Don’t Get Beaten Up by an Assault Case,” which is on our website and easily found on Google.  

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Sexual Assault in the Workplace = Sexual harassment

Most people have heard of the sex abuse cases against the Catholic Church and the Boy Scouts of America.  Those cases involve negligent failure by the organization to detect aberrant behavior by priests or scoutmasters.   On a negligence theory, the plaintiff has to show facts that would place a reasonable employer on notice that it has a situation that should be investigated.  But what if the abuse of a minor (or an adult victim) happens in the workplace?  Then the plaintiff/claimant adds the potent weapon of sexual harassment. Under the California Fair Employment and Housing Act (FEHA), Govt. Code sec. 12940 et seq., there is no need to even show notice. Under FEHA, the employer itself is strictly liable for workplace harassment by a supervisor. There is no need to rely on agency concepts. [State Dept. of Health Services v. Sup.Ct. (McGinnis) (2003) 31 C4th 1026, 1042; Myers v. Trendwest Resorts, Inc. (2007) 148 CA4th 1403, 1420.   FEHA defines “supervisor” as anyone having authority from the employer to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” [Gov.C. § 12926(t) (emphasis added)] The employer is strictly liable for sexual harassment of a job applicant by an employee authorized to interview and hire applicants. Although a job applicant has no “supervisor,” the alleged harasser is nonetheless the employer’s agent. [Doe v. Capital Cities (1996) 50 CA4th 1038, 1046, 58 CR2d 122, 127—casting director’s employer may be liable for sexual harassment of job applicant that occurred at casting director’s home] That some of the sexual conduct occurred off-site is no bar to recovery.  Doe v. Capital Cities (1996) 50 CA4th 1038, 1047-1049.  As an example, in Doe v. Oberweis Dairy, 456 F. 3d 704 (7th Circuit 2006), a supervisor’s statutory rape of a minor employee occurred at his apartment. It was workplace related sexual harassment because their relationship began with flirtatious talk and erotic touching while at work: “The sexual act need not be committed in the workplace, however, to have consequences there.” [Doe v. Oberweis Dairy, supra, 456 F3d at 715] The takeaway: if an employee is sexually assaulted or harassed in any way in the workplace by a supervisor/manager, the employer is liable.  

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What to Look for in a Personal Injury Lawyer

In days of old, people found lawyers through family or friends, by word of mouth. In the internet age, when people are hurt by someone else, they head for the internet.  This can be a very bad way to find a lawyer.  Sure, there are some fine lawyers, including us, with websites findable on the net.  But how do you know the sites you see on page one of Google are for truly excellent firms?  The answer is, you don’t. When you look at the first page hits, there are ads for firms. That tells you nothing other than they paid to be seen.  Then you see a list of organic hits. That can simply mean they hired a good SEO (search engine optimization) person to convince Google’s algorithm to put their site on page one.  Once you go into the website, it looks slick, there are lots of client compliments, etc. But you still don’t know the heart and soul of the firm.   So here are some things to look for:  What kind of client care will you get? Does the firm promise ongoing direct contact with the lawyers?  You can test this by insisting on meeting with the lead lawyer.  Many of the “settlement mills” are run by paralegals or junior lawyers.  You will never see the main lawyer after the first contact.  They also tend to settle your case for less than it’s worth. Have they ever tried a case?  Here’s a dirty little secret: many of the personal injury lawyers out there have never tried a jury trial.  That’s a huge problem for you, because what if your case needs to be tried? They won’t know how to do it.  Ask the lawyer to show you a verdict or judgment form to prove they have tried at least one case in the past few years. Are you one of hundreds of clients?   Ask the firm how many cases they have.  If it’s in the hundreds, chances are good you have found a settlement mill. Do they try to refer you to a “doctor”?  This is a method to build up medical expenses and perhaps increase the settlement value of the case.  This is not good practice. The “doctor” is probably a chiropractor.  Chiropractors are not real medical doctors. They have nowhere near the education and training that true doctors have.  Being treated by a chiropractor can often reduce the value of your claim, since most insurance carriers look askance at chiropractic care. Your best approach is to listen to your primary care doctor’s advice and get referred to real doctors and physical therapy. What does your heart say?  When you are on the phone or talking in person with a lawyer, do you feel the lawyer is really listening to you and cares about you?  Or are you just another piece of inventory for a law business? Our philosophy at Paoli & Geerhart is to take a moderate number of serious injury cases so we can devote all the time needed to have a personal relationship with the client and deliver professional service leading to an outstanding result.

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What Can You Do When An Insurance Carrier Lowballs You?

We see it all the time. A person is injured in a crash, makes a claim for damages with the other driver’s insurance carrier, and the carrier offers some piddling amount that doesn’t even cover medical bills.  They are playing it like a good major league pitcher: they throw you curveballs in the dirt to see if you’ll swing. What can you do to fight back? First off, what are you entitled to? An injured person can claim damages for medical expenses owed or paid by health insurance, wage loss (even if you used sick time), and pain and suffering and emotional distress. The state minimum insurance limit is $15,000 per person. If you had to take an ambulance to the ER, had some diagnostic testing and missed some work, your claim could be worth $15,000 right then and there.  If you demand the policy limit and they refuse to pay it, the carrier can sometimes be forced to pay a higher judgment that you obtain in court– this is called “opening the policy.” If your case is small, you can negotiate with the carrier and if they won’t pay, tell them you’ll file in small claims court. Most carriers will offer their best money before the small claims hearing occurs. If you have a larger case involving broken bones or surgery, you will want to retain an experienced personal injury attorney to push for the best settlement number. Statistics show that people do so much better with a lawyer that it more than offsets the attorney fees.  

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Why $100,000 in Auto Liability Insurance is Not Enough

By Chuck Geerhart   In our profession as personal injury trial lawyers, we see cases every day in which a negligent driver has caused injury and does not have enough liability insurance. Many times these drivers are responsible members of their community, with good jobs, homes, and families. Precisely the type of people who cannot afford to have a sudden large financial liability which will force them to drain assets above and beyond their insurance. It could be you. It all starts when the driver, let’s call him John, buys or renews his auto insurance. John makes $75,000 per year as a mid-level manager for a large corporation. He’s married with two kids and owns his own house. He knows he needs more than the state minimum of $15,000 per person and $30,000 per accident. His insurance broker or sales representative tells him he will be just fine with $100,000. John thinks, “Sure, that sounds right. I’ve never injured anybody. And if I did, how badly would they be hurt?” A year later, John is driving on the freeway in the rain and hydroplanes into Pam’s car, slamming her into a ditch off the road where her car rolls over. Pam requires emergency spinal surgery, and her medical bills alone are over $100,000. Add in her claim for wage loss and pain and suffering, and John is seriously underinsured. His own assets are at risk. How does this play out for John? If he is lucky, Pam simply settles with his insurance carrier for the policy limit. (Pam may have uninsured motorist coverage– see below.) If he is unlucky, Pam and her lawyer say, “Disclose your assets and we’ll consider settling with you for a fair amount of your own money.” If Pam takes John to court and wins a large verdict, say $500,000, John’s assets, and his wife’s, are at risk. His wages can be garnished. Pam can put a lien on any property he owns, and his bank accounts. John may have to consider bankruptcy. Not a pretty picture. How can people protect themselves against this horrible situation? First, buy at least $500,000 in liability insurance, or better yet $1,000,000. It does not cost much more to go from $100,000 to $500,000, only about $100 per year with most carriers. If you are a homeowner, purchase an umbrella policy of at least $1,000,000 at a cost of about $200. Umbrella policies sit on top of auto and homeowners liability policies and add extra protection against larger losses. Another way to protect yourself is to purchase a lot of uninsured motorist (UIM) coverage.  It’s a very inexpensive way to protect yourself and your family if a negligent driver hurts you. Example: you buy $500,000 in UIM and are hit by a driver who causes you to have surgery. But that driver is either uninsured or only has a state minimum $15,000 policy. Despite the irresponsible actions of the other driver, you will have access to up to $500,000 in insurance to cover your medical expenses, wage loss, and pain and suffering. And you don’t even have to go to court- your carrier either pays you or you go to a simple binding arbitration that will take a day or less. If you have a large claim, you would want to be sure to be represented by a well-qualified personal injury lawyer. The upshot: carrying larger amounts of insurance coverage is relatively inexpensive and can save your financial life when the nightmare happens and you injure someone.  

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Citizens Against Lawsuit Abuse = A Front Group for the Far Right

You may have heard radio spots or seen billboards by a group calling itself “Citizens Against Lawsuit Abuse” or CALA, in which the group talks about how lawsuits are driving business out of California. CALA is a “front group” for ultra-right conservative business groups. CALA has no problem misstating the facts about the number of lawsuits in California, because its goal is to stomp out as many consumer rights and remedies as possible. It wants a “frictionless” environment where big business and polluters can do whatever they wish at the expense of the health and safety of innocent citizens. Here is a link debunking CALA’s false claims: http://www.protectconsumerjustice.org/you-think-the-number-of-civil-lawsuit-filings-in-california-has-gone-up-since-2009-wanna-bet.html

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