Letter to the Editor – Re: The Trouble with Tort Reform

From: Kim Stone, President, Civil Justice Association of California
Re: The Trouble with Tort Reform by Scott Sumner, Contra Costa Lawyer, March 2012

Scott Sumner’s column “The Trouble with ‘Tort Reform’” is not helpful to the debate over California’s civil justice system. Rather than dismissing examples of frivolous lawsuits as “fabricated from whole cloth” and arguing over how tort reform may or may not fit with unrelated principles of conservatism, we need to get to the heart of the issue.

Sumner fails to recognize and address how California law has been set up to favor plaintiffs over defendants in many different respects. Our class action law allows plaintiffs to appeal a judge’s decision on class certification, but not defendants. California, unlike many other states, puts no limit on punitive damages and only requires 9 of 12 jurors to agree that punitive damages are appropriate.

In certain cases, such as disabled access lawsuits and suits brought under the Consumer Legal Remedies Act, even if the defendant wins they still have to pay their own attorneys’ fees. So even if the defendant did nothing wrong the lawsuit will still cost them thousands of dollars. However, if the plaintiff wins, the defendant has to pay the plaintiff’s attorneys’ fees. California’s vexatious litigant statute, which allows
judges to restrict individuals who repeatedly file meritless claims, only applies to plaintiffs representing themselves, not plaintiffs represented by attorneys.

Sumner may have arguments as to why the law should be this way, but let’s hear them and see how the public feels. The Civil Justice Association of California (CJAC) believes this kind of imbalance encourages abusive lawsuits to the detriment of small business owners, taxpayers, and our economy.

The fact is there are lawsuits that we can only wish were “fabricated from whole cloth.” Californians need to know about the lawyer who sued to stop a July 4th fireworks show in San Diego and then, as the San Diego Union-Tribune reported, submitted a bill to the court asking the city to pay him $756,000 in attorney fees. Democratic Senator Juan Vargas is carrying legislation this year, SB 973, to prevent this type of lawsuit.

Californians need to know about the lawsuits filed by a couple against hot-air balloon businesses in Coachella Valley, claiming without any evidence that the balloons were flying too low over their property. When the FAA found no violations, the couple even sued the FAA. The lawsuits were finally dropped last August but not until, as The Desert Sun put it, “a dozen balloonists or balloon companies went out of business, left the area or simply stopped flying locally.” One balloonist ran up $177,000 in legal fees. These and many other examples of lawsuit abuse are not myths, and the devastating impact that a lawsuit can have on a person’s life should not be casually dismissed.

There is a reason that survey after survey shows business leaders around the nation believe California has one of the worst legal environments in the country. Let’s focus on why California law has been crafted in a way that makes it easier to abuse our legal system.