California Case summaries™
By Monty A. McIntyre, Esq.
Monty publishes California Case Summaries™, with one-paragraph summaries, organized by legal topic, of every new civil case published each month, quarter, and year in California, giving subscribers a competitive advantage and excellent results. Monty has been a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. Monty handles matters in the areas of business, employment, insurance (bad faith, coverage, UIM), probate (trusts and estates), real property and torts (elder abuse, medical malpractice, personal injury, product liability and wrongful death).
CALIFORNIA COURTS OF APPEAL Arbitration
Arzate v. ACE American Insurance Company (2025) _ Cal.App.5th _, 2025 WL 309326: The Court of Appeal reversed the trial court’s order that reversed its earlier order granting defendant’s motion to compel and lifted the stay of litigation after neither of the parties took any action to initiate arbitration. The underlying action was a wage and hour action by employees against defendant employer. The arbitration agreements at issue required any person having employment related legal claims to submit them to arbitration. They also required the party who wanted to start the arbitration procedure to begin
the process by filing a demand for arbitration. The trial court concluded that the defendant had the obligation to commence arbitration, which is why it lifted the litigation stay after no one initiated arbitration. The Court of Appeal disagreed and reversed the trial court, concluding that under the arbitration agreements the party wanting to assert a claim governed by the arbitration agreements had the obligation to commence arbitration. In this case that was the plaintiffs. Defendant did not breach the arbitration agreements or waive its right to arbitration by failing to submit the plaintiffs’ claims to arbitration. (C.A. 2nd, filed January 27, 2025, published February 19, 2025.)
CALIFORNIA SUPREME COURT Civil Procedure
Madrigal et al. v. Hyundai Motor America (2025) _Cal. 5th_, 2025 WL 943693: The California Supreme Court decided a narrow question regarding the interplay between Code of Civil Procedure section 998 and the recovery of costs as the prevailing party under Code of Civil Procedure sections 1032 and 1033.5. The trial court ruled that section 998 did not apply because the parties settled before the trial was concluded. The Court of Appeal and the California Supreme Court disagreed,
ruling that cost shifting under section 998 is not limited to cases resolved by trial or arbitration. The California Supreme Court ruled that when a plaintiff rejects a 998 offer or allows it be deemed withdrawn, and later agrees to settle before trial, section 998 sets the default rule regarding cost shifting if its terms are met, but the parties are free to agree to their own allocation of costs and fees as part of the settlement agreement. (March 20, 2025.)
Copyright © 2025 Monty A. McIntyre, Esq. All Rights Reserved
review records in forming opinions. (Fox v. Kramer (2000) 22 Cal.4th 531 [The hospital did not waive its privilege by virtue of its mandatory cooperation with the Department of Public Health inquiry. Nor could plaintiffs obtain the equivalent of discovery of the peer review records by subpoenaing the DPH investigator.].)However, while the peer review privilege is strong, it is quite limited in scope.
Limitations of Evidence Code section 1157
Evidence Code section 1157 itself identifies circumstances under which the peer review privilege does not apply:
• Statements made by a person in attendance at the committee meeting if that person is a doctor in a lawsuit claiming wrongful or arbitrary exclusion from hospital staff privileges. (Evid. Code § 1157, subd. (c); Snell v. Superior Court (1984) 158 Cal.App.3d 44.)
• A person requesting hospital staff privileges in an action for administrative mandamus. (Evid. Code § 1157, subd. (c); California Eye Institute, supra, 215 Cal.App.3d 1477 [“An action for damages for past restrictions, as opposed to an action for administrative mandamus seeking to currently become or remain a hospital staff member, is not an action requesting staff privileges within the meaning of the exception.”].)
• An action against an insurance carrier alleging bad faith in refusing to accept a settlement offer within the policy limits. (Evid. Code § 1157, subd. (c).)
• In certain situations, involving medical society committees only. (Evid. Code § 1157, subd. (d); West Covina Hospital v. Superior Court (1984) 153 Cal. App.3d.)
These exceptions unfortunately do not apply in most nursing home abuse cases. Therefore, understanding what information and documents are actually protected and what that protection means to your case are critical to challenging these objections.
First, only proceedings and records of peer review committees are protected from discovery. A facility cannot make otherwise unprotected information and documents privileged by delegating tasks unrelated to peer review to the committee or placing documents that are not records of the peer review committee in committee files. (Willits v. Superior
Court (1993) 20 Cal.App.4th 90.) For example, defendants might try to apply the peer review privilege to all incident reports or nursing notes containing narratives describing an incident. However, if licensing regulations require that an incident report be created and submitted to the Department of Public Health, that document would not be a record of the peer review committee merely because it was considered by the peer review committee in conducting an investigation into the incident. The source and purpose for the record being created must be carefully considered.
Second, it is important to keep in mind that Section 1157 relates to the discoverability of peer review proceedings and records. It does not in any way affect the admissibility of such evidence at trial. (Alexander v. Superior Court (1993) 5 Cal.4th 1218 [Section 1157 does not create a bar against introduction of evidence; nor does it prevent a plaintiff from otherwise discovering relevant information unrelated to peer review proceedings].) If evidence is voluntarily produced during discovery or a committee member voluntarily testifies regarding peer review proceedings, absent other objections to its admissibility, the evidence will be deemed admissible. (Fox v. Kramer, supra, 22 Cal.4th 531 [Section 1157 does not bar the introduction of evidence voluntarily produced in the course of discovery]; West Covina Hospital, supra, 41 Cal.3d 846 [Ruled that a committee member could waive the exclusion of section 1157 and testify to the entire proceedings of the medical staff committee, provided patients’ names were not disclosed].)
All to say, do not take objections based upon the peer review privilege at face value. There are always questions that need to be asked, even if, in the end, the objection is legitimate.
Evaluating the Merits of a Defendant’s Evidence Code section 1157 Objection
The burden of establishing entitlement to nondisclosure under Evidence Code section 1157 rests with the parties resisting discovery, not the party seeking it. (Matchett v. Superior Court (1974) 40 Cal. App. 3d 623.) As we all know, if the objection is made in response to a request for production, the party resisting discovery must provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. § 2031.240, subd. (c)(1).) So what factual information is neces-
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sary in order to evaluate the merits of an objection based upon the peer review privilege?A few important questions that the party seeking disclosure might need answers to are:
• Did the facility even have a designated peer review committee during the period in question?
• Did the peer review committee ever address the events or subject matter at issue in your case?
• What records were created as a result of the peer review proceedings wherein the subject matter at issue in your case was addressed?
• If documents are being requested, are they legitimately records of the peer review committee? Or are they simply records created for an unrelated purpose that were merely reviewed or considered by the peer review committee?
• Is a committee member voluntarily testifying regarding peer review proceedings or voluntarily producing records of a peer review committee?
If the answer to these questions results in ambiguity as to whether the documents are privileged or not or the information sought to be discovered relates to a matter that is not obviously within the sole purview of a protected committee, an in camera review should be performed. (See County of Kern v. Superior Court (1978) 82 Cal.App.3d 396.) If it is revealed at an in camera hearing that only portions of a report or other document are derived from the work of a protected committee, the court may order such portions excised and compel disclosure of the remainder. (Id.; Willits, supra, 20 Cal.App.4th 90.)
The peer review privilege is often abused by health care providers in order to withhold potentially harmful evidence. While the objection may be legitimate, it often is not. So, it is up to the party seeking disclosure to fully understand Evidence Code section 1157 and hold health care providers accountable when they try to withhold discoverable evidence.
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A. Can’t say that.
Q. Can you say to a reasonable degree of medical probability that Ms. Doe’s lumbar spine is the cause of her current leg complaints?
A. No.
Q. And can you say to a reasonable degree of medical probability that any degree of lumbar radiculopathy Ms. Doe may have is the cause of Ms. Doe’s current leg complaints?
A. Not the cause, but it can contribute.
Q. Ok. Can you say to a reasonable degree of medical probability that it is contributing for Ms. Doe?
A. I can’t say that it is. I say it can be.
Q. Okay. And sorry to belabor the point but since we have stringent standards about medical opinions, can you say to a reasonable degree of medical probability it is contributing for Ms. Doe?
A. Okay. I can’t say within a reasonable degree of medical probability that her lumbar radiculopathies caused -- well, it certainly doesn’t cause CRPS.
Q. Can you say to a reasonable degree of medical probability that Ms. Doe’s lumbar radiculopathies
are contributing to any of the leg complaints in Ms. Doe’s right leg?
A. Unfortunately, I don’t have sufficient information to be able to make that determination within medical probability.
Q. Ok doctor, and we have discussed some alternate causes you have offered as to Ms. Doe’s leg pain. Is it fair to say that you cannot state any alternative cause of Ms. Doe’s leg pain to a reasonable degree of medical probability?
A. Yes.
This level of clarity around the defense doctor’s opinion creates the foundation for a motion in limine to exclude speculative alternate causation opinions under Evidence Code §801.1(a). While it may require persistence, narrowing the defense expert’s testimony can pay dividends at trial.
The Caveat
Under Evidence Code §801.1(b), “subdivision (a) does not preclude a witness testifying as an expert from testifying that a matter cannot meet a reasonable degree of probability in the applicable field, and providing the basis for
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that opinion.” Defense experts often attempt to use this section to attack the strength of a plaintiff’s causation opinions—even if those opinions meet the reasonable medical probability standard. While this limits the reach of §801.1(a) somewhat, subsection (a) remains a strong tool to restrict speculative “alternative causes” from being casually introduced.
Don’t Forget Evidence Code
§720 – Qualifications Matter
It is important to remember that an expert may only offer testimony “if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”
(California Evidence Code §720(a).) Where the opposing party raises an objection, “such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Id.)
Thus, where a defense expert offers an alternate injury causation opinion, a key consideration that must be explored is whether they are truly qualified to offer that opinion. Do they
have the knowledge, skill, experience, training, or education to qualify as an expert on that subject?
This may come into play when a medical expert is testifying about an alternate cause outside of their scope of expertise or practice. While some latitude is given to medical doctors regarding what medical opinions they can provide based on general medical training, it is worth drilling down on the expert in deposition. Take the same example discussed above, a pain management physician opining on alternate causes for a plaintiff’s claim of CRPS. One alternate cause proffered was diabetic neuropathy. While all medical doctors undergo training, a question that should come to mind is whether a pain management doctor has the requisite specialized knowledge, skill, experience, training, or education to opine about diabetes – its sequelae, diagnosis, risk factors, symptoms, progression, etc. Some might, others might not. Either way, a thorough exploration at deposition will allow you to determine whether that threshold can be satisfied. Along the same
lines, fully probing the doctor’s casespecific foundation for that opinion is key. (See Cal. Evid. Code §801(b); §803.) What records did they have? What specific evidence did they rely upon to determine your client had diabetes? Was it controlled? Was there a history of neuropathy? When was it diagnosed? Were there ongoing reports of it? Etc. Many times, defense experts rely on incomplete records, generalities, or assumptions to support vague “risk factor” type opinions. This should open them to challenge under Evidence Code sections 801.1, 803, and 720.
Conclusion
Though the law has evolved, speculative “possible” or “potential” alternative causes remain a staple of the defense playbook. Evidence Code §801.1(a) gives plaintiffs a powerful statutory tool to keep these opinions out of court. Through strategic deposition, evidentiary challenges, and expert qualification scrutiny, you can ensure that only medically probable— and legally admissible—causation opinions reach the jury. tBn
no statute better illustrates this trajectory than Penal Code section 1001.80. First introduced in 2014 to serve a narrow class of misdemeanor-level defendants with military backgrounds, the military diversion statute now exemplifies how far California has moved toward a rehabilitative, rather than punitive, pretrial posture.
The Creation of Military Diversion
In 2014, California was home to nearly two million military veterans— the largest veteran population of any state in the nation. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1227 (2013–2014 Reg. Sess.) as amended Aug. 4, 2014, p. 5.) A significant number of these individuals suffered (and continue to suffer) from post-traumatic stress disorder, traumatic brain injury, substance abuse, or other mental health conditions stemming from their service. In response to the growing recognition of these unique challenges—and the disproportionate impact they can have within the criminal justice system—the Legislature enacted Senate Bill 1227 to establish a dedicat-
ed diversion pathway for veterans and active-duty service members.
As introduced, SB 1227 proposed allowing diversion for both misdemeanors and felonies, but, as the bill moved through the Legislature, concerns about public safety led to amendments that narrowed its scope. By the time of enactment, SB 1227 applied only to misdemeanor charges. The resulting statute—Penal Code section 1001.80—established California’s Military Diversion Program, a pretrial, pre-plea alternative for qualifying misdemeanor defendants. To be eligible under section 1001.80(a), the defendant must: (1) Be a current or former member of the United States military; and (2) Be suffering, or may be suffering, from sexual trauma, traumatic brain injury, PTSD, substance abuse, or mental health problems as a result of military service. If these threshold criteria are met—and with the defendant’s consent and waiver of speedy trial rights—the court has discretion to place the defendant into a diversion program for no longer than two years. (Pen. Code § 1001.80, subds. (b) & (h).) Upon successful completion of the
program, the arrest is deemed never to have occurred, and the defendant is entitled to a clean record, with some limited statutory exceptions. (See id., § 1001.80 subds. (i).)
Since its enactment, military diversion under section 1001.80 has played a critical role in connecting veterans and active-duty members with treatment, support, and other services to help those struggling with reintegration into civilian life. The program is collaborative, involving input from the prosecutor, judge, defendant, and his or her counsel to formulate a plan that uniquely addresses the needs of each defendant. The program also is not restrictive in terms of qualifying offenses. For example, the 2014-version of the military diversion statute did not expressly address whether defendants charged with DUI offenses were eligible for diversion. Appellate courts split on the issue. (See People v. VanVleck (2016) 2 Cal.App.5th 355, 358, which held that Veh. Code, § 23640 rendered defendants charged with DUI offenses categorically ineligible for military diversion, while Hopkins v.
Superior Court (2016) 2 Cal.App.5th 1275,1279 held the opposite.) The Supreme Court granted review of the issue, but in 2017, before it could resolve the split, the Legislature amended Penal Code section 1001.80 to clarify that military diversion is available to defendants charged with misdemeanor DUI offenses.
Military diversion’s application to DUI offenses continues to be one of its most distinctive features from other diversion statutes. Still, for more than a decade, the statute remained limited in scope: Military diversion was available only for misdemeanor offenses, regardless of how directly a felony charge may have stemmed from a defendant’s military service. Yet during that same period, California steadily moved toward a more rehabilitative rather than punitive criminal justice system. In that context, the military diversion statute as it exists in 2025 does more than simply revive the original, broader intent behind SB 1227—it evolves with the rest of California’s diversion framework, incorporating key principles from other statutes to form a more expansive and integrated system for helping veterans entangled in the criminal justice system.
Mental Health Diversion and Judicial Diversion
In 2018, the Legislature enacted Penal Code §§ 1001.35-1001.36 to provide the court a vehicle to deal with all defendants, not just military members, struggling with mental health disorders. The purposes of the legislation were (and still are) to provide: “(a) Increased diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system while protecting public safety. (b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings. (c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.” (Penal Code § 1001.35.)
Under section 1001.36(b)(1), a defendant charged with either a misdemeanor or felony was eligible for diversion if they met six specific criteria: (1) a diagnosis of a qualifying mental disorder (excluding certain conditions such as antisocial personality disorder), (2) a finding that the disorder was a significant factor in the commission of the offense, (3) a determination that the defendant’s symptoms would respond to treatment, (4) the defendant’s consent to diversion and agreement to comply with treatment, (5) the availability of an appropriate treatment program, and (6) a finding that the defendant would not pose an unreasonable risk of danger to public safety if treated in the community. Even if a defendant satisfied all six eligibility requirements, the court still had broad discretion to deny diversion.
Despite the California Supreme Court’s later holding that the statute should be interpreted broadly (People v. Frahs (2020) 9 Cal.5th 618, 638), in 2022, the Committee on Revision of the Penal Code (CRPC) concluded that mental health diversion “had been substantially underutilized due, in part, to its narrow eligibility require-
ments.” (Stats. 2022, ch. 735, § 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Senate. Bill No. 1223 (2022–2023 Reg. Sess.) This underutilization led to a rewriting of the statute in 2023.
In 2023, SB 1223, amended section 1001.36 to make it easier for defendants to satisfy the eligibility requirements. In particular, if a mental health professional has diagnosed a defendant within the last five years, the court is required to presume that the mental condition was a significant contributing factor in the commission of the offense—unless the prosecution proves otherwise by clear and convincing evidence. (Stats. 2022, ch. 735, § 1.) To rebut this presumption, the prosecution must show that it is highly probable the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense. (Lacour v. Superior Court (2024) ___Cal. App.5th___ (Apr. 4, 2025, No. C101343) Despite this widening of the mental health diversion net, appellate courts have held that defendants charged with DUI offenses are categorically ineligible for diversion pursuant to Penal Code section 1001.36. (See Tellez v. Superior Court (2020) 56 Cal. App.5th 439; Moore v. Superior Court of Riverside County (2020) 58 Cal.App.5th 561, 568.) For a more detailed discussion of mental health diversion’s evolution and its practical implications, I refer the reader to the thoughtful analysis provided by Dana Grimes and Jay Temple in the September/October 2023 edition of Trial Bar News
Building on the expansion of diversionary options, in 2020, the Legislature enacted Penal Code section 1001.95, authorizing judges to unilaterally grant diversion in misdemeanor cases—even over prosecutorial objection. This statute marked a distinct shift in the diversionary framework: for the first time, eligibility was not based on any specific personal background (e.g., mental illness, military service, or substance use), but was available to nearly all misdemeanor defendants, excluding those charged with domestic violence or sex-related offenses. However, similar to mental health diversion, although the judicial diversion statute did not explicitly exclude DUI offenses, appellate courts have held that DUI offenses are categorically ineligible. (Grassi v. Superior Court (2021) 73 Cal. App. 5th 283, 307; Islas v. Appellate Division of Superior Court (2022) 78 Cal.App.5th 1104, 1110.)
Expanding Military Diversion for Felony Cases
With the enactment of Senate Bill 1025, effective January 1, 2025, California completed a legislative evolution that began over a decade earlier with SB 1227. Whereas SB 1227 introduced military diversion in 2014 but limited it to misdemeanors, SB 1025 now extends Penal Code § 1001.80 to cover most felony offenses—bringing military diversion into closer alignment with mental health diversion under § 1001.36.
Prior to this reform, current and former military service members charged with felony offenses were categorically ineligible for military diversion. Their only real options were to seek pre-plea diversion under § 1001.36, provided they met the specific diagnostic and evidentiary burdens of mental health diversion, or enter a post-plea veterans treatment court, where success might result in a reduced sentence or dismissal, but not the same protections as a true pretrial diversion program. SB 1025 changed that landscape.
The newly revised Penal Code § 1001.80 now permits felony diversion where the defendant:
• Is a current or former member of the United States military; and
• May be suffering from sexual trauma, traumatic brain injury (TBI), post-traumatic
stress disorder (PTSD), substance abuse, or mental health problems as a result of their military service, and
• The defendant’s condition was a significant factor in the commission of the offense.
If these conditions are met, and the court finds that the defendant is otherwise suitable for diversion, the case may be diverted pre-plea. Importantly, the statute now mirrors § 1001.36 by including a presumption that the condition was a significant factor in the offense unless rebutted by the prosecution with clear and convincing evidence. (Pen. Code § 1001.80(c)(2)(B).)
Moreover, the evidence admissible to establish this nexus is expansive. Courts may consider police reports, preliminary hearing transcripts, witness statements, expert evaluations, medical records, or other credible sources that reflect the defendant exhibited symptoms consistent with the condition near the time of the offense. (Pen. Code § 1001.80(c)(2)(C).) Upon successful completion of diversion, the arrest is deemed never to have occurred, and the record cannot be used adversely in most civil or professional contexts. (Pen. Code § 1001.80(k).)
Final Thoughts
With these recent changes to Penal Code section 1001.80, former and active military members are now the most diversion-eligible class of defendants in the state. The proof required to satisfy the qualifying criteria is less stringent than Penal Code section 1001.36 in that military diversion does not require a formal DSM-5 diagnosis from a qualifying mental health expert. And unlike judicial or mental health diversion, DUI offenses are divertible. Few would dispute that offering greater leniency to those who risk their lives in service of the country is probably the right thing to do in many circumstances. So, while we should commend the Legislature on their most recent expansion to our diversion laws, it’s also worth thinking about why our justice system must be the safety net catching veterans as they fall, and looking ahead, what could be done to increase access to treatment to support our veterans before criminal conduct occurs. tBn
complaints; and (3) internal reports or work orders.
The first is the easiest to do. Pull up Google, drop the little orange guy into the area of the defect, and use the timeline to go back in time. Screengrab each documented change in the defect over time to show the pothole grow or the sidewalk rise, year by year. Between the assessments and Google, you have enough for constructive notice.
The second approach is collecting citizen complaints. This is where governments help you tremendously through their attempts at transparency and customer (“citizen”) service. It’s the real gold in that it provides actual notice.
Almost every government in California has some sort of citizen “complaint box.” In San Diego, it’s the “Get It Done” app; in Los Angeles,
it’s “MyLA311.” Anyone can tag a location with a photograph and say, “Dangerous pothole here!” and boom, you have actual notice. These reports are often available within the apps themselves, and together with the Google Maps photos you can create a clear timeline of the defect and complaints to the agency.
What the agency does with the complaints is the third angle. Typically, the agency will have a routing system to take a complaint and assign it to a department or specific employee. For example, the “Get It Done” app generates tickets that are then tasked to city crews to fix.
Often, the city fixes the problem but does it poorly. Sometimes it doesn’t fix the problem at all. In these cases, you have clear actual notice, and the government should not fight you much on liability.
On the other hand, let’s say you don’t find a specific citizen complaint about your sidewalk or pothole. It is important when you’re searching for these reports that you look for reports nearby—reports that send a government employee directly to the area where your client got hurt.
Anything that puts an employee in that vicinity is helpful, because most of the time these employees are not proactive. They’re sent to a sidewalk or a street with a specific directive: fix the problem and only the problem. They put on blinders to other defects in the area.
And when they don’t pay enough attention to see the 6-inch raised sidewalk your client tripped over or the deep pothole in the bicycle lane that was only a few feet away, you get to ask, “Did you even look?” tBn
During the lunch hour, we were reminded by our keynote speaker, California State Controller Malia Cohen (an absolute force, by the way), that California has the world’s fifth largest economy. Despite its economic power, Californians face a wide range of challenges from the most indigent to the most affluent communities. Her job is to protect them all equally. While the state boasts some of the most progressive consumer protection laws in the nation, she reminded us that CAOC’s ongoing lobbying efforts are critical to ensure those laws stay relevant and equitable. Indeed, our ability as members of trial lawyer associations across the state to join forces with CAOC to assist in the lift and support their efforts by lobbying for consumer rights bills in California can create meaningful change and protect residents in all of our communities. Justice Day should be seen as an opportunity, not an obligation or a chore.
Sb 447 – Pre-Death Pain & Suffering
For instance, one of the three big issues on this year’s agenda was the anticipated sunset of SB 447 (i.e., C.C.P. section 377.34), which allows for the recovery of damages for a decedent’s pre-death pain and suffering in survival actions. The bill became law on January 1, 2022.
The law allows the estate or heirs of a deceased person to seek recompense for the pain, suffering, disfigurement, etc., the deceased endured before their death. It filled a previous gap in California law that prevented the recovery of noneconomic damages
in survival actions when the injured party suffered between the date of incident and the date of their demise. For medical malpractice attorneys, this bill was another game changer (in addition to cap increases), making previously unviable cases economically feasible with the addition of pre-death pain and suffering damages. While this was especially important in medical malpractice cases, especially those involving the death of babies and children, it had widespread impact on all cases involving pain and suffering prior to a wrongful death.
Unbeknownst to newer legislators and, more importantly, the citizens of this state, SB 447 fell under the category of a “pilot program” with a prescheduled sunset on January 1, 2026. Unless the legislature takes action to extend or make it permanent before the end of this calendar year, the bill will no longer allow for estates or heirs to recover these types of damages.
Of note, in a 2011 Survey conducted by Arent Fox, LLP, California was one of just four states that still prohibited the recovery of pre-death pain and suffering damages in a survival action. Should the legislature allow this bill to sunset, California will rejoin Arizona, Nevada, and Wyoming as the only states prohibiting survival actions for pain and suffering.
Advocacy in Action
During the afternoon session on April 8, Lori Andrus (President of the American Association for Justice (AAJ), 2024-2025) and I met with the Julie Cravotto, the Chief of Staff for Assemblymember Dawn Addis (D –
Morrow Bay). We spent over 30 minutes discussing CAOC’s top three legislative priorities, including the anticipated sunset of SB 447. We learned during our meeting that while Assemblymember Addis’ staff was fully familiar with SB 447, they weren’t necessarily aware that it was scheduled to sunset on January 1, 2026. When asked if Assemblymember Addis would commit her vote to making sure this bill did not sunset, Ms. Cravotto indicated that this seemed like a “no-brainer,” and that she would be sure to pass the information along to the assemblymember.
While true that it is a “no-brainer” to not allow this bill to sunset, Assemblymember Addis’s staff is one of 80 in the Assembly, and that doesn’t include the 40 seats in the Senate. Regardless of whether Assemblymember Addis was aware of the sunset provision, if her staff wasn’t but now is, Lori and I made a small impact that day for nearly 40 million Californians. And that is the POWER of Justice Day and why it’s a privilege to be there, not an imposition.
A Call to Action
Now… take a deep breath, close your eyes, and imagine the impact we could have on a bill this important if all 3,600 members of CAOC had shown up on April 8, 2025.
Then, take a second deep breath, close your eyes, and imagine if only 140 of us show up in Sacramento next year when fee caps are back on the legislative docket.
#AssistWithTheLift tBn
the steps the FDA is taking in this proposed rule to strengthen protections for American consumers.
The rule sets out to update testing methods and definitions of elongated mineral particles. The FDA’s proposed new testing methods align with those endorsed in 2021 by the Interagency Working Group on Asbestos in Consumer Products (IWGACP), in which AAJ was a participating member. Though the rule does not adopt the IWGACP definitions of elongated mineral particles, it improves upon outdated previously used definitions.
We urged the FDA to correct the inconsistency in the definition of asbestos to prevent products from being misbranded and marketed as asbestos-free. In recent years, reports of Americans hurt or killed by dangerous cosmetic products have increased, and 70% of children under 12 have started using cosmetic products. The FDA’s work to protect American consumers from asbestos and other dangerous ingredients in their cosmetic products is critical.
Legal Affairs
Amicus Curiae update
AAJ’s amicus curiae briefs (https://www.justice.org/advocacy/ legal-affairs/amicus-curiae-program) help to ensure that access to justice is rigorously defended in courts nationwide. Since the beginning of 2025, AAJ has filed 12 briefs in state and federal courts on a variety of issues.
This month, the Supreme Court of the United States (SCOTUS) handed down a favorable decision for a truck driver who filed a civil RICO claim
against a company that marketed CBD products containing no THC after he was fired for failing a drug test. Medical Marijuana, Inc. v. Horn (No. 23-365). AAJ filed an amicus brief in support of Horn last fall, urging the Court to hold that the plain language of the statute’s “business or property injury” requirement necessarily includes damages stemming from Horn’s personal injury, including loss of employment. The brief was authored by Robert S. Peck of the Center for Constitutional Litigation, PC. On April 2, Justice Barrett delivered the opinion of the Court, which voted 5-4 to hold that a civil RICO plaintiff may recover for harm to business or property even if that harm resulted from a personal injury.
On April 17, SCOTUS handed down a unanimous decision for the plaintiffs in Cunningham v. Cornell University, finding that the Second Circuit should have allowed a class action brought by Cornell University workers under the Employee Retirement Income Security Act of 1974 (ERISA) to proceed. AAJ filed an amicus brief in support of the petitioner, arguing that the Court has never insisted upon specialized pleading requirements on plaintiffs in cases like this one—and should not devise new ones now in what would amount to judicial amendment of ERISA’s text.
For more information or to request AAJ amicus support, please email legalaffairs@justice.org.
Federal Rules update
AAJ advocates for fair and balanced rules to ensure that plaintiff attorneys are represented.
After a six-month public comment period, the proposed amendments to FRAP 29—Brief of an Amicus Curiae— have been fixed. The Advisory Committee on Appellate Rules made substantial changes to its proposed rule based on comments it received from both the plaintiff and defense bars, which, in a rare showing of agreement, favored the proposed rule. The proposal to eliminate party consent for filing a brief was removed from the rule. The revisions ensure that parties will not have to engage in motion practice to get an amicus brief filed. Other provisions, including the disclosure requirements, were also substantially revised.
Uniting for Justice
Working together has never been more critical. At a time when civil justice issues are under intense scrutiny in state legislatures, Congress, and the courts, we must continue to inform consumers nationwide of the value of their rights, what’s at stake if corporate interests destroy those rights, and the unique role of trial lawyers who fight for justice for their clients.
If you have questions, please contact me at advocacy@justice.org tBn
clauses extend beyond the immediate contract, covering all future disputes with any related party or affiliate.
SB 29 (Laird) – Pain and Suffering in Survival Actions removes the sunset provision from SB 447 (2021-Laird) and makes permanent the right for families to seek accountability for pain and suffering when their loved ones die before achieving justice in court.
AB 251 (Kalra) – Elder Abuse –Intentional Destruction of Evidence will allow access to justice for elderly and dependent adults who are physically abused and neglected in nursing homes.
At lunch, we took a break from legislative meetings and heard from our keynote speaker, Controller Malia Cohen, who left us feeling inspired to take action and fight the good fight. Our sincerest appreciation goes to
Stebner Gertler & Guadagni and Lieff Cabraser Heimann & Bernstein for hosting a fantastic lunch program.
After our meetings concluded, members met up for food, refreshments, and a beautiful outdoor rooftop view of Sacramento at the Clayton Club. Thank you to Melissa BaldwinBaldwin Settlements for sponsoring an incredible closing mixer to finish a phenomenal Justice Day
Member Jamie-Mauhay Powers let us know that Justice Day reminds her why she “entered this profession in the first place – to fight for the voices that too often go unheard. Grateful to stand alongside colleagues and advocates who are passionate about protecting the rights of everyday Californians.”
If you have any Justice Day questions, or feedback, please contact
Natalie Robertson at grassroots@ caoc.org
Lots of planning, intention, and love go into pulling off Justice Day each year – it’s a full team and community effort! Thank you to Deputy Legislative Director Jacquie Serna and our advocates for their incredible help, Program and Events Manager Katie Pebler for venue planning and logistics support, Senior Development Manager Caroline Andrews for taking care of our amazing sponsors, Katy Aguirre for registration lead, Liz Teves, Bev Johnson, and Chris Weaver for registration support, Julie Gossett for her strategic branding and communications, Ben Helton for the fresh designs, and Political Director Lea-Ann Tratten and COO Laurie Klimchock for always leading the way. tBn
