Trial Bar News - Volume 48 - Issue 3 - May/June 2025

TrialBarNews Volume 48, Issue 3 • May/June 2025 In this issue 3

Listening to Understand Havens

11 Attacking Alternate Injury Causation Wetzel

17 Assist With the Lift Argos

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CAOC Legislative Update Helton

13 The Expansion of Diversion Seipel

21 Member Section

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AAJ Legislative Update Lipsen

15 Did You Even Look?

Martini

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Peer Review Privilege Holm

24 Case Summaries McIntyre

Trial Bar News Editorial Board

Benjamin J. Coughlan

Dana M. Grimes

CASD Officers and Staff President, Sarah A. Havens President-Elect, Natalie B. Holm Treasurer, Matthew D. Clendenin Secretary, Carree K. Nahama Immediate Past President, Paula R. Brown

Benjamin I. Siminou

Executive Director & CEO Bonnie R. Benitez

Editor Emeritus Kerry Hoxie Column Editors Civil Procedure & Policy Thomas M. Diachenko Criminal Law Joseph Seipel Elder Law Natalie Holm Employment Law Andrew Hillier Ethics Joel Selik Evidence Law J. Domenic Martin Insurance Law Patrick Calhoon Medical Malpractice Elizabeth Teixeira Torts Jessica Tora Wetzel Production Staff Production Director Bonnie R. Benitez Design Production Cathy Paddock ink2@aol.com Trial Bar News is published six times per year.

Proposed articles may be sent to CASD at casd@casd.org, or to the respective column editor. For more information and rates for advertising call CASD Offices (619) 696-1166.

Subscrip­tions for non-members are $100.00 per year.

Copyright ©2025 Consumer Attorneys of San Diego (entire contents of publication)

Consumer Attorneys of San Diego 2535 Camino del Rio South, Ste. 345 San Diego, CA 92108 Phone (619) 696-1166 Fax (619) 696-1294 E-mail casd@casd.org www.casd.org

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Board of Directors David Arreguin Nathan G. Batterman David S. Casey III James M. Davis Jordon R. Harlan Sean Manee

J. Domenic Martini John J. O’Brien Anna Romanskaya Benjamin I. Siminou Kacie B. Vinel Aran J. Wong

Past Presidents Paula R. Brown Brian K. Findley Benjamin J. Coughlan Christopher C. Walton Amy Rose Martel Maria F. Kelly Dana M. Grimes James S. Iagmin Brett J. Schreiber Timothy G. Blood Raul Cadena Rebecca D. Lack John H. Gomez Joel R. Bryant Scott Levine Wayne Alan Hughes Kenneth Sigelman Gayle M. Blatt Richard A. Huver Robert J. Francavilla R. Christian Hulburt L Tracee Lorens Benjamin C. Bunn William Turley Hon. Robert J. Trentacosta William H. Naumann Dennis A. Schoville Thomas J. Warwick, Jr. Deborah A. Wolfe Steven M. Boudreau Frederick Schenk Cynthia Chihak

Harris I. Steinberg Vincent J. Bartolotta, Jr. Robert L. Grimes Hon. Louisa S. Porter Hon. Anthony J. Battaglia Hon. Steven R. Denton (ret.)

Daniel R. Krinsky David S. Casey, Jr. Harvey R. Levine Sheldon Deutsch George P. Andreos Maynard Kartvedt Maurice V. Boudreau Alan J. Ludecke Hon. Sheridan E. Reed C. James Jarboe Gordon S. Churchill Wesley H. Harris Gaylord Henry Ernest Fraley Hon. Michael I. Greer (ret.)

John T. Popko Irwin Gostin Timothy Evatt Louis S. Katz Wallace E. Wolfe Tom Golden F. James Bear Thomas E. Sharkey George R. McClenahan David S. Casey, Sr.

May/June Trial Bar News

President’s Column

Listening to Understand: Civility Beyond the Courtroom

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Three Friends and an Elephant

nce upon a time, in a remote distant village, three friends heard that a creature they’d never seen before – an elephant - was sighted in a meadow. Until then, they’d only imagined “elephants.”

“Elephants are huge and destructive!” said one.

“No, they’re kind and majestic. One even carried a princess once,” said another.

“Elephants aren’t real,” scoffed the third.

They argued until a traveler brought them to the meadow, which by then was covered in thick opaque fog. “There’s no elephant in there!” cried the friends.

“The elephant is in the fog —see for yourselves,” the traveler said. Curiously they ran into the fog, which was so dense they couldn’t see a thing! So, they relied on their touch.

“It’s a massive wall!” shouted the first, pressing against its broad side.

“It’s like a giant magic carpet,” said the second, running his hands along the elephant’s ear.

“It’s clearly a deadly spear!” yelled the third, gripping the sharp tusk.

Their voices rose as they argued: “Wall” “Carpet!”

“Spear!”

“Fake News!”

Then came the insults.

“Stupid!”

“Bonehead!”

“Clown!”

Within a week, they blocked each other on social media. After a disastrous holiday gathering, they vowed never to see each other again. Soon, all communication ceased.

They became lost without each other’s guidance. Though they missed one another deeply, resentment grew. They filled their hearts with hate and blamed one another for the end of their decades-long friendship.

Stop Yelling. Start Listening.

What if—just imagine—instead of yelling at each other, the friends had listened to each other? Not just listened, but listened to understand.

What if, instead of acting on impulse, they had asked, Why? Why do you feel that way? Not to argue, but to truly learn.

The friend who believed the elephant was a deadly spear might say, “I was

Sarah Havens CASD President

Sarah Allison Havens is Founder and Lead Trial Lawyer of Havens Injury Law, Inc., which represents wrongfully injured individuals against insurance companies, corporations and governmental entities. Sarah is a University of San Diego Law School Grad, a Trial Lawyers College Graduate, and National Institute of Trial Advocacy faculty instructor. She can be reached at sarah@havensinjurylaw.com.

Continued on page 4 Trial Bar News May/June

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President’s Column Continued raised to fear elephants. Elephants terrify children and the elderly. Elephants have always meant danger. That’s my truth.”

Now imagine if the friends had sat down together and compared their experiences: “I felt something long and flexible.”

“I touched something wide and flat.”

“I grabbed something strong and sturdy.”

What if they had discovered that everyone was both right—and wrong?

The Third Ear Listening to understand means listening to what is not being said. It means holding space for someone else’s truth without immediately filtering it through our own. It’s about seeing the world – feeling the world through their experiences.

It means reflecting, “Why do they

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feel this way?” instead of, “How can I convince them I’m right?”

Gerry Spence speaks of “the inimitable power of the third ear”— The ear that hears not only what is said, but what is not said, and the feelings behind those unsaid words.

The friend who said the elephant was a magic carpet believed in something gentle and magical. Maybe it reminded him of childhood stories that made him feel safe. That was his truth. If we truly listened, we might feel that comfort too.

You Can’t Win an Argument In our emails, discussions and communications, in our homes and courtrooms, in politics, and on social media, even when we are speaking with jurors…. we often talk past each other. We cling tightly to our version of the truth. We’re quicker to explain than

to ask. Faster to judge than to truly listen.

Just like the friends, we miss the greater truth by refusing to piece together all perspectives.

“Instead of condemning people, let’s try to understand them. Let’s try to figure out why they do what they do.” — Dale Carnegie, How to Win Friends and Influence People

Pick Up the Phone Look—we’re going to disagree.

And that’s okay.

But what if, instead of letting that disagreement divide us, we used it as a starting point to understand each other better?

I promise there is more that unites us than divides us.

Call. Ask. Listen. Not just with your ears, but with your heart. TBN

May/June Trial Bar News

CAOC Legislative UPDATE

CAOC Members Took Our Case to the State Capitol on Justice Day “Every year I look forward to attending Justice Day! This year we lobbied on issues that impact my clients and their cases by preventing full access to justice.

Can’t wait for next year!”

T

- Carree Nahama, San Diego

hank you to everyone who joined us for CAOC’s annual Justice Day! Your dedication to protecting consumer rights left a lasting impact on lawmakers, and your presence helped spotlight the real people behind our legislative priorities. For those who’ve never been to Justice Day, Alexis Gamliel says it best: “when we say ‘seeking justice for ALL,’ we mean it. And that’s precisely why we take the time to meet with lawmakers and explain why all Californians need key pieces of legislation to pass, so that justice is accessible and equitable for everyone.”

In a new element of Justice Day this year, CAOC Grassroots Manager Natalie Robertson hosted a training session to prepare attendees on April 7. That evening, CAOC’s Annual Legislative Reception took place at The California Museum, and guests were treated to a “night at the museum”-style reception while we mingled and heard from key lawmakers, including Senate Judiciary Chair Tom Umberg and Assembly Judiciary Chair Ash Kalra. A huge thanks to Greene Broillet & Wheeler, McNicholas & McNicholas, and Singleton Schreiber for hosting a truly awesome event! Following the reception, OCTLA and CCTLA hosted a vibrant nightcap to close out the Justice Day Eve festivities.

Justice Day kicked off bright and early on April 8. Members checked in for their schedules and received their event materials. This year we had beautiful materials, including journals embossed with Lady Justice and some very fun stickers that included one with CAOC President Geoff Wells’ face, and one with the tagline “livelaugh-litigate.” Thank you to our material sponsors: Aitken*Aitken*Cohn, Bisnar | Chase Personal Injury Attorneys, Capitol City Trial Lawyers Association, Compass, Dreyer Babich Buccola Wood Campora, Walkup, Melodia, Kelly & Schoenberger, and Doctors on Liens.

Members were welcomed to breakfast by our keynote speaker, Sacramento Assemblymember Maggy Krell. Special thanks to our breakfast sponsors Chang Klein and The Matiasic Firm. Our fierce CAOC advocates – Nancy Drabble, Nancy Peverini, Lea-Ann Tratten, Jacquie Serna, and Saveena Takhar – let everyone know what to look forward to in the day ahead.

Justice Day saw our members attend more than 65 meetings with legislators and their staff (thank you to Maria Jimenez for coordinating), and our members advocated for three key bills: SB 82 (Umberg) – Infinite Arbitration targets overly broad terms and conditions requiring unsuspecting consumers to sign “infinite” arbitration clauses. These

Samantha Helton Consumer Attorneys of California Deputy Political Director

Samantha Helton is responsible for coordinating CAOC’s political and fundraising efforts. She earned degrees in history and government from CSU, Sacramento.

Samantha served as the California Democratic Party Progressive Caucus Communications and Media Officer, President of Sacramento County Young Democrats and co-chair of the CYD Progressive Caucus.

Continued on page 39 Trial Bar News May/June

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May/June Trial Bar News

AAJ Legislative UPDATE

Washington Update

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t this time, perhaps more than ever, with the federal government slashing programs intended to protect the public, trial lawyers must continue to provide a safety net. AAJ and the state associations must continue working in partnership to address the challenges we face.

The attacks on the judiciary and lawyers undermine the rule of law and our Constitution. AAJ’s latest response statement can be found in our Press Center (justice.org/resources/press-center/).

In addition, earlier this year, AAJ’s Board approved a Resolution in Support of the Rule of Law and a statement from AAJ President Lori Andrus (also found in our press center).

Linda A. Lipsen, CEO American Association for Justice

New Tort “Reform” Campaigns A new group called Protecting American Consumers Together (PACT) launched earlier this year (protectingamericanconsumers.org/). PACT announced that it intends to spend more than $10 million this year to protect consumers from “exploitative practices by a predatory personal injury system.” To do this, they have targeted several states, including California, Florida, Georgia, and Texas, and have recently started running ads in Louisiana, New York, and New Jersey.

The Atlanta Journal-Constitution reported that PACT has received funding from Uber.

If you know of PACT operating in your state, contact AAJ’s State Affairs Director at mary.graffam@justice.org

Linda Lipsen is the CEO of the American Association for Justice (AAJ).

She joined AAJ in 1993 to direct the Public Affairs department. Ms. Lipsen earned her B.A. from the University of Wisconsin and

New Videos Through our grassroots campaign Take Justice Back (https://www.takejusticeback.org/), AAJ released a video to raise public awareness and drive the conversation about the need to hold Big Tech accountable for social media products that cause massive, systemic harm.

Please help us amplify the message! Share with your contacts and followers on social media and “like” or comment on the videos. Follow Take Justice Back to get the word out. No one wants their rights taken away.

her J.D. from the Antioch School of Law.

Comments Filed at FDA AAJ filed comments on March 27 in response to the Food and Drug Administration’s (FDA) proposed rule: Testing Methods for Detecting and Identifying Asbestos in Talc-Containing Cosmetic Products. AAJ largely supports

Continued on page 38

Trial Bar News May/June

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Introducing

CRAIG SCHLOSS Signature Resolution welcomes Craig Schloss to our panel of neutrals, specializing in employment law, trade secrets and noncompete disputes. With over 40 years of legal experience, he brings a strategic and collaborative approach to the firm.

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May/June Trial Bar News

elder law

The Peer Review Privilege: Is Defendant’s Objection Legitimate?

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ften in nursing home abuse cases, discovery will be requested regarding investigations performed, complaints made, disciplinary action taken, and incident reports created by the healthcare facility. In response to this discovery, defendants will likely object based upon Evidence Code section 1157 or the “Peer Review Privilege.”

At first glance, this privilege may seem broad and impossible to overcome.

However, taking a deeper dive into this code section and its limits will help attorneys know when to capitulate to the objection, and when to challenge it.

Natalie B. Holm Column Editor

Introduction to Evidence Code section 1157 In an effort to “encourage full and free discussions in the hospital committees in order to foster health care evaluation and improvement,” California legislators passed Evidence Code section 1157. (Brown v. Superior Court (1985) 168 Cal.App.3d 489.) This statute embraces the goal of medical staff candor at the cost of impairing plaintiffs’ access to information. (California Eye Institute v. Superior Court (1989) 215 Cal.App.3d 1477.)

Pursuant to California Evidence Code section 1157, “neither the proceedings nor the records of organized committees… or of a peer review body…having the responsibility of evaluation and improvement of the quality of care rendered in a health care facility…shall be subject to discovery.” (Evid. Code § 1157, subd. (a).) Furthermore, a person in attendance at a meeting of such a committee shall not be required to testify as to what transpired at that meeting. (Evid. Code § 1157, subd. (b).)

It is important to note that, if the information or documents being sought do fall within the scope of Evidence Code section 1157’s privilege, that information will not be discoverable regardless of how relevant, or likely to lead to the discovery of admissible evidence, the privileged information might be. (Mt. Diablo Hospital Medical Center v. Superior Court (1984) 158 Cal.App.3d 344.) Those arguments are irrelevant to discoverability in the face of the peer review privilege.

Furthermore, if evidence is protected by the peer review privilege, but must be disclosed to a third party by law, that does not constitute a waiver and the protected information and records cannot be obtained by subpoenaing the third party either. This is particularly relevant in Nursing Home Abuse cases involving Department of Public Health investigations that rely substantially on hospital peer

Natalie Holm is a partner at Holm Law Group, PC in San Diego. She has spent her entire career representing elderly clients and their families in abuse, neglect, and wrongful death cases throughout California. She has been serving on the CASD Board of Directors since 2018 and is currently CASD President Elect. She can be reached at natalie@holmlawgroup.com.

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Trial Bar News May/June

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May/June Trial Bar News

Torts

Attacking Defense Opinions on Alternate Injury Causation

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ince the adoption of California Evidence Code §801.1, plaintiffs’ attorneys have been armed with a powerful tool to prevent defense experts from offering speculative opinions on injury causation. Yet, defense medical experts continue to suggest possible or potential alternative explanations for a plaintiff’s injuries – opinions that fail to meet the required “reasonable degree of medical probability” standard and therefore should never reach a jury. A firm understanding of this evidentiary rule – and its strategic use during depositions and pretrial motions – can effectively block the defense from presenting unfounded “alternate cause” theories in injury cases.

Jessica Tora Wetzel Column Editor

Using Evidence Code §801.1 It has long been the case that a plaintiff bears the burden of proving medical causation in an injury case through expert testimony to a reasonable degree of medical probability. (See Cal. Evid. Code 801.1(a); Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118; Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) Opinions about possible causes of injury or death are neither relevant nor admissible because they do not assist the trier of fact. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776.) Evidence Code §801.1(a) now also extends that burden to the defense when proposing an alternate theory of injury causation.

Jessica Tora Wetzel is a Partner at Van Herk Wetzel, LLP where she specializes in the litigation of medically complex cases. She has devoted her entire career to representing those harmed by the wrongful

Evidence Code §801.1(a) states: “In a general civil case … where the party bearing the burden of proof proffers expert testimony regarding medical causation and where that

conduct of others. She can be reached at jessica@vhwlaw.com.

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Torts Continued Being prepared to flesh out these opinions during deposition and make appropriate pre-trial motions can often seriously limit the defense from making these “spaghetti at the wall” types of causation defenses.

party’s expert is required as a condition of testifying to opine that causation exists to a reasonable medical probability, the party not bearing the burden of proof may offer a contrary expert only if its expert is able to opine that the proffered alternative cause or causes each exists to a reasonable medical probability, except as provided in subdivision (b).” (Cal. Evid.

Code §801.1(a)[emphasis added].)

Deposition Considerations

In practice, this means a defense expert may not opine that the plaintiff’s injuries stem from a different cause unless that cause meets the “reasonable medical probability” standard. We have all seen the “could have been X, Y, Z” theories offered by defense experts. Your client’s headaches could have been caused by pre-existing high blood pressure. Your client’s leg pain could have been caused by preexisting diabetes. Sometimes defense doctors use more subtle language by saying your client’s pre-existing condition is a “risk factor” for the harm claimed. However, vague references to “risk factors” or speculative contributors are insufficient. These are, in effect, improper alternate causation opinions and must be excluded unless the defense meets the admissibility threshold.

To exclude alternate causation theories, setting the groundwork during deposition is essential. Any alternative medical cause of your plaintiff’s injury or harms proffered by the defense doctor should be thoroughly explored. For example, assume a defense doctor claims that a plaintiff’s diabetes and lumbar spinal issues could be the source of a plaintiff’s leg pain in a case where she claims she developed Complex Regional Pain Syndrome (CRPS) as a result of the subject incident. A line of questioning may look something like this: Q. Doctor, can you say to a reasonable degree of medical probability, that Ms. Doe’s diabetes is the cause of her leg pain?

A. No. Q. Can you say to a reasonable degree of medical probability diabetic neuropathy is the cause of any of the symptoms in Ms. Doe’s right leg currently?

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Ben Siminou

singletonschreiber.com

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*Board of Legal Specialization of the State Bar of California. **When serving as sole or lead appellate counsel.

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May/June Trial Bar News

CRIMINAL LAW

The Expansion of Diversion

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n January 1, 2025, Senate Bill 1227 took effect, expanding military diversion under Penal Code section 1001.80 to include defendants facing felony charges. This significant modification marks a departure from the statute’s prior limitation to misdemeanor offenses and reflects a broader trend in California toward increasing access to diversion programs across a wider array of offenses.

The origins of pretrial diversion in California can be traced back to Governor Ronald Reagan. In the spring of 1972, Governor Reagan delivered an urgent message to the Legislature advocating for the creation of a diversion program targeting individuals charged with drug-related offenses. (Cal. Drug Diversion Law— Its First Year: Drug Diversion Conference Findings, Mar. 28–29, 1974, NCJ No. 31522 (1974) Office of Crim. Justice Planning, State of Cal., p. 1.) He proposed “a system, through administrative handling, which will place [first-time drug offenders] in an appropriate treatment program in [their] own community. Where public safety will not be compromised and the interest of the law-abiding citizen is not jeopardized, such diversion can properly be urged.” (Assem. Daily J., 60th Assem. (Apr. 20, 1972) p. 2369.)

The Legislature acted swiftly. On December 15, 1972, Governor Reagan signed Senate Bill 714 into law, creating Penal Code sections 1000–1000.4—commonly known as “PC 1000” or “Drug Diversion.” Under this framework, eligible defendants were assessed by the probation department, which considered various individualized factors such as age, employment, educational background, community and family ties, prior drug use, treatment history, and other mitigating circumstances. The department would also identify suitable community-based treatment programs and report its findings and recommendations to the court.

Successful completion of the prescribed program—lasting no less than six months and no more than two years—would result in dismissal of the charges.

By August 1973, over 10,000 defendants had been diverted through PC 1000 statewide; seven months later, that number had more than doubled, with over 20,000 individuals referred to programs focused on education, treatment, or rehabilitation. (Cal. Drug Diversion Law—Its First Year, supra, at p. 2.) From its inception, diversion has required a careful balance between protecting public safety and addressing the individualized needs of defendants. The early model aimed to offer young adults a second chance while alleviating pressure on the overburdened criminal justice system, but the framework remained relatively static for decades—a tightly controlled, “one bite at the apple” approach.

However, over the last decade, the Legislature has continually expanded the availability of diversion to more defendants and more complex crimes. Perhaps

Joseph Seipel Column Editor

Joe Seipel has practiced criminal defense since 2018 with Blair Defense Criminal Lawyers. In 2022, he launched his own firm to expand into personal injury and to serve clients in Hawaii, where he is also licensed. He earned his bachelor’s degree from Bowling Green State University and his law degree from University of San Diego. He can be reached at joe@seipellawoffice.com.

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Trial Bar News May/June

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May/June Trial Bar News

Evidence Law

“Did You Even Look?”

Updated Methods for Proving Notice

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s a kid, when I complained to my parents that I could not find something, they would often ask, “Did you even look?” That’s how you have to treat government entities when you are trying to prove notice in dangerous condition cases.

We’ll discuss some methods for proving notice using the City of San Diego as an example. Most governments have similar systems, so no matter your jurisdiction, this guide should help.

Domenic Martini Column Editor

The Big Picture: Surveys and Assessments While our clients tend to get hurt by smaller things—curb cuts, potholes, and raised sidewalks—governments think about their property at a higher level.

Agencies are often focused on whole streets or sidewalks rather than individual defects.

Agencies conduct surveys and assessments that involve rating their property from “good” to “failed.” And many of these agencies conduct the surveys every 8–10 years. For example the City of San Diego just conducted its most recent Pavement Condition Assessment (PCA) in 2023. The prior PCA was in 2016. They did the same for their sidewalks in 2014/15.

These assessments can be useful in a few ways. First, they show the city is keeping tabs on their infrastructure and thus has a system in place to monitor its property. Second, they establish a clear timeline for neglect. In the PCA, you can pull a map of the city and drill down to the specific street your client was hurt on.

Same thing with the sidewalk assessment from 10 years ago.

For example, Narragansett Avenue had a “serious” rating in 2016, only to be topped by its “failed” rating in 2023. If this is the injury location in your case, your liability story went from being about a bad street, to being about a government neglecting a known concern for years.

While the labels and definitions may vary, most governments have a method for tracking their bad streets, and most, just like the City of San Diego’s PCA, can be found on Google without any cost to your client.

Of course, these surveys aren’t perfect. They don’t speak to a specific pothole or sidewalk defect. But they give you the groundwork to tell your story.

Domenic Martini is a trial attorney at Singleton Schreiber, where he focuses on catastrophic injury and flood cases.

Dom is a member of the CASD Board of Directors. He can be reached at dmartini@ singletonschreiber.com.

The Details: Creating a Timeline of the Specific Condition To drill down on the defect that hurt your client, it’s best to approach the evidence from a few angles: (1) Google Earth and Google Maps photos; (2) citizen

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Trial Bar News May/June

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May/June Trial Bar News

Medical Malpractice

Assist With the Lift

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just returned from my fourth consecutive CAOC Justice Day in Sacramento.

Every year I attend, I learn and grow more as a consumer advocate for the nearly 40 million people we represent in this beautiful state we call home.

However, despite the benefits of attending, I’ve also left each year feeling that we are not doing enough as consumer advocates when it comes to our presence in Sacramento – one day per year simply isn’t sufficient. This article is not intended to be a critique for those who couldn’t be there. (We all have commitments, and we can’t be everywhere at once.) However, I would like to use this forum as an opportunity to remind everyone what it is that CAOC does and why we should all attend Justice Day. This article is published in Trial Bar News (TBN) for Consumer Attorneys of San Diego (CASD). CASD makes up one of several local trial lawyer organizations in the state of California dedicated to protecting the rights of consumers.

Organizations like Consumer Attorneys Association of Los Angeles (CAALA), Orange Count Trial Lawyers (OCTLA), Capitol City Trial Lawyers Association (CCTLA), San Francisco Trial Lawyers (SFTLA), and so on. While several of these organizations had strong representation in Sacramento on April 8, 2025, several did not… including the one I will be president of in 2029, OCTLA. Consumer Attorneys of California (CAOC), however, is the organization all of our local trial lawyer associations lean on – year in and year out – to do the heavy lifting in Sacramento by engaging with Assemblymembers, Senators, Governor, and other stakeholders.

Anecdotally, during the lunch hour on April 8, I asked Saveena Takhar (CAOC Senior Legislative Counsel) if I would see her at the closing ceremony and she said, “probably not.” When I asked why, she replied, “I’ll be testifying on the senate floor on three different bills this afternoon.” I share this only because her response to my question was made without reservation or hesitation, and this was after two full days of entertaining CAOC members in Sacramento and speaking at a 7:30 a.m. breakfast meeting. All before returning home to her family and two young kids. In no particular order: Saveena, Jacquie Serna, Nancy Drabble, Nancy Peverini, Lea-Ann Tratten, Laurie Klimchock, Samantha Farmer-Helton, Natalie Robertson, Catherine Pebler, Caroline Andrews, Katy Aguirre, Julie Gossett, J.G. Preston, Liz Teves, Beverly Johnson, Maria Jimenez, and more, all fight every single day for what it is we hold sacred and, at times, take for granted.

All they ask for in return is one day a year in Sacramento to come assist with the lift. (You heard it here first: During my year as President of OCTLA, the slogan for Justice Day will be “Assist with the Lift, Justice Day 2029.” Shirts, hats, wristbands are all in the making.)

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Trial Bar News May/June

Jason N. Argos Contributor

Jason is the Founder and Trial Counsel of Argos Law. He is active in the Consumer Attorneys of California (CAOC) and the Orange County Trial Lawyers Association (OCTLA). Jason won the OCTLA Top Gun Trial Lawyer of the Year Award and has been inducted into the American Board of Trial Advocates (ABOTA). He can be reached at jason@argos-law.com.

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Consumer Attorneys of San Diego

Honoring

Our Newest Inductee into the Trial Lawyer Hall of Fame!

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May/June Trial Bar News

We Know Work • Wrongful Termination

• Wage Theft

• Sexual Harrassment

• PAGA Actions

• Retaliation

• Unpaid Commissions

• Discrimination

6 1 9 . 2 3 0 . 1 234 • gruenberglaw.com

Trial Bar News May/June

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24th Annual CASD Golf Tournament

12

Past Presidents’ Reception Honoring Deb Wolfe

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Texas Hold Em’ Poker Tournament

MAY

JUNE

JUNE

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JUNE

CASD Connect: Neuropsychological Testing

18

CASD Connect: Picking Justice Live: Jury Selection

4

Webinar: QFF’s, Sketchy or Savvy?

11

Business of Law Symposium

19

San Diego Legal Community Blood Drive

9

Webinar: Navigating Future Medical Damages at Trial

11

Red Boudreau Dinner

30

A Celebration with the Trial Stars

AUG

SEPT

SEPT

SEPT

OCT

OCT

OCT

5

NOV

CASD Connect: Judges Panel

Working Group Wednesdays Last Wednesday of every month

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Details and Registration at CASD.org/events

May/June Trial Bar News

member section

Christy Heiskala Survivor Advocate and Business Coordinator at Haeggquist & Eck, LLP CASD Member since 2024

Place of birth: Southern California Year you became a survivor advocate: 2016 What is the best part about being a CASD member?

At the recommendation of my managing partner, Alreen Haeggquist, I joined CASD. The best part so far was attending and speaking at the Business of Law Symposium. The experience was both insightful and energizing. I appreciated the warm welcome and collegial atmosphere. With my background in business development and trauma-informed legal practices, I found it especially valuable that CASD dedicates a full-day symposium to the operational and strategic aspects of running a law firm.

What is the biggest challenge you have faced as a survivor advocate and how did you overcome it?

One of the biggest challenges I face as a survivor advocate is protecting myself from vicarious trauma and burnout. To stay grounded, I’ve built intentional self-care rituals that help me release the emotional weight of the stories I witness. I keep a self-care basket on my desk as a daily reminder to pause and do some self-care, like applying lotion, filing my nails, or writing a thank-you note. I take walks during my lunch break and prioritize monthly wellness practices like massages, facials, and therapy. There’s no shame in my self-care game! It’s a commitment I take seriously because it is how I stay resilient and present for the people I serve.

What piece of advice would you give a new attorney just starting out?

Prioritize your well-being from day one. Do not wait until you experience burnout to start practicing self-care.

Make it a consistent, daily commitment. The stress of this profession is ongoing, so your care needs to be ongoing as well. Invest in both your personal and professional growth. Understanding how your nervous system works is essential—not only for managing your stress, but also for building trust, encouraging client disclosure, and improving case outcomes. Regulating yourself is part of showing up fully for others.

Do you have a motto? Please share! My motto is, “Nothing about us without us.” I believe that lived experience isn’t just valuable, it’s essential. Any conversation, policy, or practice that affects a community must center the voices of those who’ve lived it. While education and training are critical, they can never replace the depth and insight that comes from lived experience.

What book(s) are on your nightstand? Brain Energy, The Unshaming Way, The Next Day, The Women, Gratitude Journal Favorite vacation spot: Santorini Favorite band/song: Imagine Dragons Favorite San Diego restaurant? Ketch on the Embarcadero Favorite San Diego adventure or place to hang out? Hiking Torrey Pines How can people connect with you on social media? https://www.linkedin.com/in/christyheiskala/

Trial Bar News January/February

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member section

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) _

the process by filing a demand for arbitration. The trial

reversed the trial court’s order that reversed its earlier

commence arbitration, which is why it lifted the litigation

the stay of litigation after neither of the parties took any

disagreed and reversed the trial court, concluding that

a wage and hour action by employees against defendant

assert a claim governed by the arbitration agreements had

any person having employment related legal claims to

was the plaintiffs. Defendant did not breach the arbitration

who wanted to start the arbitration procedure to begin

submit the plaintiffs’ claims to arbitration. (C.A. 2nd, filed

Cal.App.5th _, 2025 WL 309326: The Court of Appeal

court concluded that the defendant had the obligation to

order granting defendant’s motion to compel and lifted

stay after no one initiated arbitration. The Court of Appeal

action to initiate arbitration. The underlying action was

under the arbitration agreements the party wanting to

employer. The arbitration agreements at issue required

the obligation to commence arbitration. In this case that

submit them to arbitration. They also required the party

agreements or waive its right to arbitration by failing to 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

24

May/June Trial Bar News

COMPETITIVE REFERRAL FEES. IT’S NO ACCIDENT.

Trial Bar News May/June

25

Elder Law Continued 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

26

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-

Continued on page 27

May/June Trial Bar News

Elder Law Continued 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?

Trial Bar News May/June

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. TBN

27

Torts Continued 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

28

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

Continued on page 29

May/June Trial Bar News

Torts Continued 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

Trial Bar News May/June

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

29

Criminal Law Continued 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.

Continued on page 31

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Criminal Law Continued 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

Trial Bar News May/June

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.

Continued on page 33

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May/June Trial Bar News

Criminal Law Continued 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

Trial Bar News May/June

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

33

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May/June Trial Bar News

Evidence Law Continued 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

­ Trial Bar News May/June

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May/June Trial Bar News

Medical Malpractice Continued 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

Trial Bar News May/June

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

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AAJ Legislative Update 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

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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.

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 .

Federal Rules Update AAJ advocates for fair and balanced rules to ensure that plaintiff attorneys are represented.

May/June Trial Bar News

CAOC Continued 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

Trial Bar News May/June

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 Baldwin Baldwin 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

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OUTSTANDING TRIAL LAWYERS

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AN EVENING WITH THE TRIAL STARS OCT 30 | 5:30 PM PENDRY SAN DIEGO OUTSTANDING ADVOCATES

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Benefitting a Local Charity

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2025

Law Firm Partner Program Partner with Purpose The Consumer Attorneys of San Diego (CASD) Law Firm Partner Program is designed specifically for law firms and individual attorneys who want to enhance their visibility, deepen their connection with CASD members, and show support for the legal community we’re building together.

Elevate your presence and support YOUR community of trial attorneys!

Whether you join as a Justice Partner ($10,000), Advocate Partner ($5,000), or Trial Partner ($2,500), your annual sponsorship will help you grow your practice, increase your referral network, and reserve your spot at signature CASD events like A Celebration With the Trial Stars, the Annual Golf Tournament, Conferences, and Happy Hours.

Packages include sustaining memberships, discounted advertising in Trial Bar News, recognition across digital platforms, and the chance to stand out among our community trial attorneys across Southern California.

WHY BECOME A CASD LAW FIRM PARTNER? Because this is your community. CASD is driven by attorneys like you — passionate about justice, committed to excellence, and invested in mentoring and connection. By becoming a Law Firm Partner, you amplify your firm’s name while giving back to the very organization that protects and advances our shared values. It’s more than sponsorship. It’s leadership.

CASD.ORG Contact Geni Sapinoso at Geni@casd.org

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Consumer Attorneys of San Diego

Welcome New Members!

Diana Adjadj

Jose Flores-Dalby

Michael Nunez

Julianne Aguirre

Michelle Fonseca-Kamana

Danielle Pena

Mark Birmingham

Andrew Goldblatt

Danielle Pompeo

Jack Brouwer

George Gomez

Mariam Rizko

David Cardone

Iraida Gonzalez

Owen Roth

Aundrea Cardoza

Scott Havens

Joseph Sammartino

Catherine Coirin

Kimberly Hutchison

Christopher Sirkis

Daniella Doern

Jay Jambeck

Britt Strottman

Susan Dussault

Eliza Jasinska

Philip Stutzman

Ericka Elms

Teresa Johnson

Lien Tram

Connor Er

Jeffrey Light

John Wilschke

Brian Needelman

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May/June Trial Bar News

Trial Bar News May/June

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