Sophisticated User Doctrine Applies in California

There were a few posts I linked to in Blawg Review #155 that are worth highlighting in separate posts, just in case people bypassed Blawg Review #155. One of them is Drug and Device Law’s post on the California Supreme Court decision adopting the sophisticated user doctrine in product liability cases, Johnson v. American Standard, case no S139184 (Apr. 3, 2008).

I especially like the way the post tackles this important distinction:

We’ve often explained that the “learned intermediary doctrine” is just that — a doctrine, and not an affirmative defense. Plaintiffs bear the burden of proving causation as part of their case-in-chief. Plaintiffs must therefore prove that a different warning on a drug’s package insert would have changed the physician’s conduct and avoided an alleged injury. Because the learned intermediary doctrine is not an affirmative defense, defendants do not bear the burden of proof.

“Sophisticated users,” however, is described as a “defense,” not a doctrine. That may be appropriate because the defendant may bear the burden of proving that the user was sophisticated.

There is detailed discussion on this issue, and the post also looks at a question left unanswered by the decision. The post is well worth reading if you get anywhere near product liability cases.

Firestarter Burned by Government Immunity

I’ve been stewing over this post for a couple of days.

Sovereign immunity always left a sour taste in my mouth. Yes, I understand all the justifications for it. But it still seems like a raw deal a lot of the time.

In California, government immunity (against state law claims) is the rule, and the liability of a public entity is limited to specific statutory exceptions. So . . . you can’t generally sue the government unless one of those exceptions applies (and even then, not until jumping through the necessary administrative hoops). I get that.

But what if the government sues you? Surely, those immunity statutes don’t prevent you from defending on the basis that the government’s conduct contributed to its own damages, either through contributory negligence or failure to mitigate damages, right?

Think again. That’s exactly what those statutes mean, at least the specific sections of the Government Claims Act at issue in People ex rel. Grijalva v. Superior Court (United Conservation Water Dist.), case no. B201881 (2d Dist. Feb. 4, 2008).

This decision doesn’t sit well with me at a gut level — and especially not in light of another recent decision discussed below.

The defendant in United Conservation admitted responsibility for accidentally causing a brush fire, and was sued by the state under Health & Safety Code section 13009, under which the government can recover the costs of fighting a fire from any person responsible for setting it. The defendant asserted affirmative defenses of comparative fault and failure to mitigate damages, contending that although the fire eventually burned 64,000 acres, the state had the fire contained at 1200 acres and could have readily extinguished it completely at that point had it not pulled its firefighters off the line prematurely. In other words, the defendant contended that the state was responsible for most of its firefighting costs because it unnecessarily let the fire get out of hand.

The issue of responsibility for accidentally causing a brush fire is very serious as among the causes of the recent outbreak of California wildfires you can find human touch.

This seems like an eminently reasonable argument to me, but the court of appeal holds that statutory immunity shields the state even from affirmative defenses based on government conduct that would be immune to suit.

Here’s the court’s rundown of the immunity statutes that stand in the defendant’s way:

The immunities created in the Government Code shield public entities, such as petitioner, from liability based on the firefighting methods or tactics they employ. Thus, the Government Code immunizes public entities from liability for injuries caused by the failure “to provide fire protection service[,]” (Gov. Code, § 850), and the failure to “provide or maintain sufficient personnel, equipment or other fire protection facilities.” (Gov. Code, § 850.2.) The statutes preclude an action against a public entity for “failure to arrive at a fire in a timely manner[,]” even where that failure is caused by the firefighters’ negligence or willful misconduct. [Citation.]

So, how does the court get from immunity from liability to immunity from affirmative defenses that would decrease the liability of the defendant being sued by the government? The defendant contended that there is a big difference between suing the government and asserting a defense against it, but the court doesn’t agree:

The affirmative defenses of comparative fault and failure to mitigate damages seek to limit a defendant’s liability for compensatory damages based on the plaintiff’s own fault or inefficiency. Application of either defense here would reduce petitioner’s recovery based on a judge or jury’s finding that petitioner used unreasonable or inefficient methods to fight the fire. This is precisely the line of argument foreclosed by the Government Code. The immunity statutes protect fire fighters and fire fighting entities from incurring a financial penalty based on the “fire protection service[,]” personnel, equipment or other fire protection facilities[,]” they provide, or do not provide. (Gov. Code, §§ 850, 850.2, 850.4.) The statutes mandate that no percentage of fault or liability for fire–related damage may be ascribed to a public entity.

This struck me as just plain wrong. Liability to another party is one thing; responsibility for one’s own damages is another. That is the distinction between suing the government and asserting an affirmative defense against it. I thought the court inadequately explained why it rejected this distinction, and indeed, I didn’t think it should reject it.

The statutes say that the entity will not be “liable” for certain conduct, and to me, liability connotes an obligation to someone else. So I looked to see if “liable” is among the defined terms in the Government Claims Act. It’s not, so, like a famous jurist, I turned to the dictionary to see how this word might be interpreted in the statute. What I found is that some dictionaries define “liable” in terms of obligation or amenity to suit, but others only define it in terms of culpability, regardless of the existence of any legal obligation arising from that culpability.

But the court’s ultimate justification, though it did not play it up as such, is this line it quotes from Munoz v. City of Union City (2007) 148 Cal.App.4th. 173: “In the absence of duty, there can be no tort liability, and no fault can be allocated to a party that is not a tortfeasor.” The court determines that the statutes not only protect public entities from liability for firefighting (or lack thereof), they actually preclude the rise of any duty. Without duty, there can be no tort, and no tortfeasor. And if you’re not a tortfeasor, then according to the court’s reading of Munoz, no fault can be allocated to you.

I have a problem with this reliance on Munoz. Munoz was decided in the context of liability to a plaintiff, not in the assertion of an affirmative defense based on the public entity’s negligence or failure to act.

Moreover, what to make of Ovando v. County of Los Angeles, case no. B186504 (Jan. 18, 2008), decided less than three weeks ago (and after oral argument in United Conservation), in which a different division of the Second District Court of Appeal held that comparative fault had to be apportioned among all tortfeasors, including two police officers that were immune from liability under Government Code section 821.6, in order to fix that portion of plaintiff’s damages that each remaining tortfeasor was responsible for?

In Ovando, plaintiff contended that the comparative fault of the immune officers (who were not parties) need not be calculated and that 100% of the fault should be apportioned only among the non-immune parties (who also happened to be public entities). The Ovando court notes a difference, supported by prior cases, between tortfeasors that are immune from paying for their tortious acts, and those that are not tortfeasors to begin with because the law declares their actions not to be tortious. Comparative fault must be apportioned to the former, but not to the latter. Since Government Code section 821.6 merely provides immunity from payment rather than declare that no duty exists, fault had to be apportioned to the officers.

So at that level, Ovando and United Conservation are consistent. The former allocates fault to police officers who breached a duty but are immune from paying for injuries due to that breach. The latter refuses to allocated fault because the firefighting entity had no duty at all as a result of the immunity statute.

But what makes section 821.6 an immunity from payment for breach of a duty, while sections 850, 850.2 and 850.4 declare that the public entity has no duty that can be breached? The United Conservation court doesn’t explain that, except to say that the “broad grant” of immunity in the statutes “means that public entities owe no duty to persons or property damaged by fire.” But I think you can make a case that section 821.6 grants immunity for something done, while sections 850, 850.2 and 850.4. provide liability for what the public entity fails to do. Hence, no duty.

What is a citizen to conclude from these decisions? In Ovando, the court required allocation of fault to immune tortfeasors, which had the net effect of reducing the liability of the non-immune public entity defendants. In United Conservation, the court refuses to allocate fault to the immune public entity, thus increasing the damages the government can collect. To your average guy on the street, that’s going to look like a rigged game, with the courts deciding whichever way comes out best for the public entity.

Though the legal reasoning may be adequate on its surface, as a matter of public policy, this holding seems crazy — it says that so as long as the government’s damage is initiated by a private party the government can sue, the government can exacerbate its own damages (provided the applicable immunity statutes strip it of any duty to act otherwise) and then collect all of its damages — even those that the public entity is itself responsible for causing — from the private party.

Not all immunity statutes will be read to eliminate a duty, so United Conservation won’t necessarily apply to every case in which a defendant asserts an affirmative defense that implicates the public entity’s actions that are immune from liability. But in this case, the immunity statutes not only protect the government from others, they protect the government from itself!

I’m not alone in not liking the outcome of this case. Professor Martin agrees.

Supreme Court Gets Rid of Conflicts by Dismissing Case

Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete.

The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants.

The Supreme Court’s actual order is not posted as a final disposition on the court’s website, nor does it appear to be available on Westlaw. But here’s how the docket web page for the case describes it, which may or may not be verbatim from the order:

Review in the above-captioned matter is dismissed in light of circumstances, arising since review was granted, that require a majority of the permanent members of the court to recuse themselves. (See Cal. Code of Judicial Ethics, Canon 3.E(4)(c), (5)(d); Cal. Rules of Court, rule 8.528(b).) Kennard, Baxter, Chin, and Corrigan, JJ., were recused and did not participate. Hon. William R. McGuiness, Administrative Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Votes: George, C.J., Werdegar, Moreno, and McGuiness, JJ.

The article is devoted in large part to the unusual reasons for the dismissal. It quotes Santa Clara University law professor Gerald Uelman’s astonishment at the reasons for the dismissal, as well as Chief Justice George’s defense of it on the ground that a decision on the merits by appointed justices would not carry the same weight as a decision of the regular court members. The latter strikes me as an odd position to take in light of the fact that, as the article points out, the court has appointed 7-member panels in the past. The article claims that has happened in cases in which the entire court was “conflicted,” but writes that Chief Justice George distinguishes those prior occasions because “the new panels [on those prior occasions] were created out of necessity and not conflicts of interest.” (That is Ms. Ernde’s characterization of Chief Justice George’s position, not a quote attributed to him.)

The article quotes several of the attorneys involved in the case, none of whom saw the dismissal coming. My favorite quote is from Horvitz & Levy attorney David M. Axelrad, representing Exxon, who is quoted as saying, “Some people say that appellate litigation is not exciting. Well, that’s not actually true.”

The article also discusses the nature of the issue on the merits. The online case summary page for the case describes the issue this way:

Does Evidence Code section 801, subdivision (b), permit a trial court to review the evidence an expert relied upon in reaching his or her conclusions in order to determine whether that evidence provides a reasonable basis for the expert’s opinion?

A pretty good summary of the implications of the question appears here, at the website of environmental law firm Barg Coffin Lewis & Trapp LLP.

Ms. Ernde’s article is behind the subscription wall at the Daily Journal, so if you are not a subscriber, you’ll need to get your hands on a physical copy of the November 5 edition. Thanks to Laura Ernde for alerting me to this.

UPDATE (11/8/07): Cal Bz Lit has a post on the merits of the evidentiary issue in the case. The post includes a link to his original post on the case (which includes a nice history on the development of expert witness “gatekeeping” authority of California judges).

UPDATE ( 12/14/07): The Supreme Court — part of it, anyway — has denied a request to republish the Court of Appeal opinion.

Should the Government be Liable for Criminal Acts of its Employees?

The Government Liability Update blog has a good post on DeVillers v. County of San Diego, case no. D048974 (4th Dist. Oct. 19, 2007), which it describes as “deal[ing] with a real-life crime that would make a decent plot for a ‘CSI’ episode.” A county medical examiner and former meth addict having an affair with a co-worker steals drugs from work at the County Medical Examiner’s office and poisons her husband with them. Is the County liable for the husband’s death? The jury said yes. The Court of Appeal reverses.

When Good Law Goes Bad

Not generically bad, but bad for you.

The plaintiff in Acosta v. Hill, case no. 05-56575 (9th Cir. Oct. 17, 2007), claimed in her Section 1983 case that the force used by city security guards and police while ejecting from a San Diego stadium violated her civil rights.  Indeed, she claimed she had been subjected to deadly force, and that the trial court erred by giving an instruction on excessive force under a reasonableness standard without giving a separate instruction on deadly force.

She had a shot.  Ninth Circuit precedent at the time of her appeal drew a distinction between instructions for excessive force and instructions for deadly force.

Her bad luck that before her appeal could be heard, the U.S. Supreme Court decided Scott v. Harris, 127 S.Ct. 1769 (2007), which allows the panel to make quick work of Acosta’s claim.  Under Scott, a standard of reasonableness applies to all uses of police force.  There is no difference in standard between excessive force and deadly force.  The jury having found that the officers acted reasonably in their use of force, it doesn’t matter whether the force is alleged to be deadly or merely excessive.

Legal Malpractice Tolling Decided by Supremes

It’s always nice to see a split of authority resolved.  Code of Civil Procedure section 340.6 provides that the limitations period for legal malpractice against “an attorney” is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  Before yesterday’s Supreme Court decision (just its second this month) in Beal Bank, SSB v. Arter & Hadden, LLP, case no. S141131(Sept. 27, 2007), the court of appeal had split on the question of whether the statute of limitations for legal malpractice is tolled against the former firm of an attorney who continues to represent the client after leaving the former firm (here is the similar case by Robert Norris Alabama asbestos lung cancer lawyer).

The Supreme Court decides unanimously that the limitations period is not tolled as to the former firm.  Though there are competing policy considerations, the legislative history of section 340.6 indicates that the legislature intended that attorneys are entitled to repose after a certain time.  Tolling would submit the former firm to potential liability for an undetermined time beyond its control.

Initially, I read this the same way as Professor Martin at California Appellate Report, who says “Here’s a win for lawyers today.”  But its important to remember that it’s only a win for the former firm.  The departing lawyer who continues to represent the client may be left “holding the bag” alone.

UPDATE (9/28/07): As far as whether this is a “win” for lawyers, its telling to see that amicus briefs were filed on behalf of Arter & Hadden (the former firm) by the Los Angeles County Bar Association,  the Association of Southern California Defense Counsel, and a host of “Big Law” firms: Bingham McCutchen, Cooley Godward Kronish, Farella Braun + Martel, Howard Rice Nemerovski Canady Falk & Rabkin, Morrison & Foerster, Orrick Herrington & Sutcliffe, Pillsbury Winthrop Shaw Pittman and Thelen Reid & Priest.

So its undoubtedly a win for Big Law when they bleed associates and clients.  Not so much for the departing entrepreneurs.  Then again, there’s a good deal of lateral movement of partners among firms, and one or more of these amici may come to regret the holding when they find they can’t seek indemnification.

UPDATE (9/28/07 #2):  The case prompts an article at  The article closes with this:  “Moscarino, who represented Arter & Hadden, noted that the ruling helps not only large firms, but solo practitioners and small-firm lawyers who might leave their practices for other law-related jobs or judgeships.”

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C.C.P. Section 1985.3 is Toothless

Just one decision out of the Court of Appeal yesterday, but it’s a doozy.  In Foothill Federal Credit Union v. Superior Court, case no. B198664 (2d Dist. Sept. 24, 2007), the court holds that consumers’ claims against a credit union for disclosing consumer records in response to a subpoena are barred by the litigation privilege of Civil Code section 47.  At least, that’s the way the court describes its holding, but there is more at work in the decision.

The impact of this decision is hard to understate in light of Code of Civil Procedure section 1985.3, which requires a party seeking certain forms of consumer records in discovery to notify the consumers so they have an opportunity to object to the disclosure.  The court’s finding that the credit union in this case was shielded from any liability by Civil Code section 47 renders Code of Civil Procedure section 1985.3 pretty much toothless.

Interestingly, the real parties did not contend that section 47 was inapplicable.  Instead, they claimed that the policies underlying expanding the privilege beyond defamation were not served by applying it to a custodian of records who provides records in violation of section 1985.3, that applying the privilege in such circumstances would virtually abrogate section 1985.3 because it would remove any incentive for a records custodian to comply with it, and  that applying the privilege in this case leads to an absurd result because the very litigation that gives rise to the discovery would also confer immunity for providing discovery in violation of the statute.

The actual reasoning of the court strays from application of the privilege to whether any remedy exists for violation of section 1983.5.  The court holds that the only purpose of section 1985.3 is to provide a process for consumers to object to disclosure.  It provides them no right of action against a noncomplying records custodian.

Given this determination, the discussion of whether the section 47 litigation privilege applies seems academic to me.  If no right of action exists, then there’s no liability, privilege or no privilege.

Regardless of the court’s actual reasoning, there is no denying that its decision leaves consumers at the mercy of records custodians and leaves them with no recourse for violations of section 1985.3.  The tone of California Appellate Report‘s post on the case does not appear to be overstated.

Even the majority opinion appears to acknowledge this (though certainly in less dire terms than California Appellate Report), and the concurring opinion makes an explicit appeal to the legislature to step in.

Primary Assumption of Risk Doctrine Applies to Golf

If I didn’t already play golf, Shin v. Ahn, case no. S146114 (August 30, 2007), might be enough to scare me out of doing so.  In the course of reaching the conclusion that the primary assumption of risk doctrine applies to golf and thus reckless conduct, not mere negligence, is necessary to impose liability, the California Supreme Court reviews several cases where plaintiff was hit by a golf ball, often at extremely close range and at least once smack in the face.  Yikes.

The lesson to be drawn from Knight [v. Jewett (1992)] 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is that the primary assumption of risk doctrine should be applied to golf.  Thus, we hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” [Citation.]

Quoting one out of state case, the Supreme Court noted, “Shanking the ball is a foreseeable and not uncommon occurrence in the game of golf.  The same is true of hooking, slicing, pushing, or pulling a golf shot.  [Citation.]”  Of course, anyone who’s played golf with me already knows this.  Which is why I am hypersensitive to the positions of others when I play. Seriously.

Elder Abuse Act Protective Orders Reviewed for Abuse of Discretion

In Bookout v. Nielsen, case no. G037727 (4th Dist. August 31, 2007), the Court of Appeal was faced for the first time with the question of the proper standard of review on appeal from an Elder Abuse Act protective order.  (Welf. & Inst. Code, § 15657.03.)

Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion.  Of course, the factual findings underlying the order are reviewed for substantial evidence.