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  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





Citizens United v. FEC: The changing landscape of the justice system

No, I haven't gone into hiding nor have I given up my blog. I have spent the last few months working on an update to my book, California Summary Judgment and Related Termination Motions. In the first month, I began at a leisurely pace, fitting in a few hours here and there, quite confident that I would casually saunter to the finish line (or the publisher's deadline) without a bead of sweat on my brow. All that changed in the last month, and mostly, the last few weeks. As I could see that I was coming close to the end of my labors, some small madness overtook me and I could think of nothing but finishing the update.

Somewhere around January 21, 2010, the news of a recent U.S. Supreme Court decision penetrated my obsessed skull and then the headlines were announcing the holding in Citizens United v. FEC, which opened the floodgates for campaign-financing by corporations. In essence, the Court invalidated a prohibition against corporations and unions from using their general treasury funds for "electioneering communications." That decision also applies to allow such "speech" by corporations created in foreign countries or funded by foreign shareholders. The opinion is extremely lengthy and many have written about the holding in this case. My focus is on how this case is viewed by citizens who are looking to the judicial branch to dispense justice.

The Court was divided 5-4 over the decision with the usual conservatives leading the charge and the more "liberal" wing handling the dissent. We are very familiar with this split and everyone believes that the split is divided along political lines. That very conclusion raises a number of concerns among people who believe that the courts exist to serve justice.

When a client wants to appeal a case, there is a belief that somehow the jury did not understand the case, the other side outspent the appellant, or as frequently claimed, appellant's attorney failed to properly try the case. These clients are desperately seeking to have a higher court review what happened below and to dispense justice. They believe that if they presented their appeal to every appellate court in California, the result would always be the same because justice is not political or influenced by personal beliefs.

That concept (or fantasy, as some might call it) of our system of justice is eroding as we all have seen "justice" being dissected along political and ideological lines. Nowhere is that example more obvious than in decisions by the "highest" Court in the land.

Some may hail the Court's decision as a triumph for freedom of speech. In his dissent, in which Justices Ginsburg, Breyer and Sotomayor joined, Justice Stevens disagreed, writing, "The Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution."

One might ask how these justices could come up with such differing viewpoints on what appears to be a First Amendment issue. Who would ever say they are not in favor of the First Amendment? But yet, not only do we have differing viewpoints, but we have the United States Supreme Court announcing that its past decisions, even if only seven years had passed, were wrong. Well, then, does justice change with the time? If it does, what changes over time? Obviously, the makeup of the Court, and the prevailing political climate.


Some interesting thoughts on punitive damages

I have to admit that I don't spend a lot of time reading other attorney's blogs, but I do enjoy reading California Punitive Damages, even though the firm is often on the oppose side of my appeals. Well, knowledge can come from the most unlikely sources.

In a post from December 18, 2009, the authors cite an article on "The Need for Enforcement of U.S. Punitive Damages by the European Union." (See They also reference an article from the New York Times written by Adam Liptak, who points out that many European nations refuse to enforce U.S. punitive damages award because these countries believe that the singular goal of civil litigation should be the compensation of plaintiffs, and not to punish the defendant. They prefer to leave punishment for criminal proceedings.

In the article, which can be found at, Liptak reports that the Italian Supreme Court refused to enforce a $1 million dollar award against a helmet manufacturer. He wrote, "The court said that a peculiarity of American law - punitive damages - was so offensive to Italian notions of justice that it would not enforce the Alabama judgment."

Apparently Italy is not alone in its opinion. The Italian court felt that punishment should be restricted to the criminal justice system with "its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators."

Apparently when the rest of the world sees a huge punitive damage award, it looks down on the United States with disfavor, because it gives a jury composed of laypeople broad discretion in awarding punitive damages. In addition, while the media is quick to report an award of huge punitive damages, it doesn't always follow-up to see how those damages might have been reduced after trial.

Punitive damages have been around longer than I have and they are frequently requested in civil cases. We have such little faith in "government safety regulators" and believe that American juries are far more "disinterested" - for better or for worse - than many prosecutors. Punitive damages are often the only means of sending a message to big corporations to stop doing something that is either fraudulent, oppressive, or malicious. Would these governments feel the same way about smaller punitive damage awards against individuals who commit wrongful acts?

Now we find ourselves in a battle to restrict the amount of punitive damages to be awarded against a defendant, and that battle frequently shifts from the jury room to the appellate courts. Some believe that appellate courts shouldn't interfere with an award of punitive damages except under limited circumstances while others believe that such awards should always be scrutinized by the courts.

But what about the concept of doing away with punitive damages altogether, leaving that task to criminal courts? I wish I had more faith in our justice system, because I think if punitive damages were eliminated or reduced to a small amount (such as a 1:1 ratio with compensatory damages), big corporations would not feel the sting of disapproval and there would be no deterrent effect to their bad behavior. Sometimes a civil lawsuit, with a plaintiff acting as a "private public prosecutor" is the only way to get the message across.


Another case on Hanif

Codner v. Wills (2009) 2009 WL 4915839 is not published but it is a case that is worth looking at for personal injury lawyers due to its treatment of Hanif issues. It was decided by Division Six of the Second Appellate District in Ventura with Justice Perren writing the opinion.

Codner was driving a motorcycle when he collided with a car driven by Wills near the exit of In-N-Out Burger in Ventura. Liability was disputed and cross-complaints were filed by Wills and In-N-Out. In-N-Out settled with Codner before trial. Even though the trial court approved the settlement, In-N-Out participated at trial. The jury found Wills was 100% at fault and awarded damages of $3,084,305.29.

Wills appealed, challenging several rulings during trial. He also claimed the trial court erred in denying his post-verdict to reduce the award for past medical expenses to the amount that Codner’s insurer actually paid. In-N-Out also cross-appealed.

Wills relied on Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to support his request for a reduction in past medical expenses. The opinion does not cite the recently published case of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686. The court concluded that Wills had not met his burden of showing that the plaintiff did not remain liable for the full costs of medical services. Wills provided statements from Accent, a “financial recovery company” (aka bill collector), showing that Codner’s medical providers assigned their claims to Accdent for a reduced sum.

The court stated,

“The amount for which a medical provider is willing to sell and a third party is willing to buy an account receivable has little if any bearing on the value of the services rendered to the plaintiff and provides no basis for concluding that [plaintiff] does not remain liable for payment of the full amount of the services provided.”

(Opn., pg. 14)

Because Wills failed to eliminate the possibility that Codner had potential liability for the full cost of medical services provided, he had not carried his burden. Thus, it appears here the determinative issue was whether the plaintiff had potential liability, which might have been established in contractual agreements between plaintiff and his insurer. Lack of financial liability could also have been established by obtaining an acknowledgment from plaintiff, Accent, or the medical providers that Codner was off the hook for the excess sum.


Congratulations on another win on appeal

Well, I don't know if you believe in Santa Claus but one of my clients, Tom Luebke of Prestininzi and Luebke, has a new reason to celebrate the Holiday season. Tom recently tried a case for personal injuries. His client, Douglas Harp, was injured when his parked pick-up truck was struck head-on by a dump truck driven by George Armitage, Jr. at a construction site. At the time, Armitage was on his lunch break and was driving in an unauthorized area with his son.

Harp sued Armitage, his employer, Leading Edge, and Mesa Contracting, the grading contractor. Tom pursued several theories, including one based on negligent training, against Leading Edge Trucking, Inc. The jury found Armitage was not acting within the scope of his employment. The jury awarded Harp over $1.8 million in damages.

The special verdict form did not distinguish between the theories of negligent hiring, training and supervision. The jury allocated 5% fault against Mesa, even though it found Mesa's negligence was not a substantial factor in causing plaintiff's injuries. In post-trial proceedings, the trial court reallocated the 5% fault to Leading Edge and Armitage.

Leading Edge appealed. The main thrust of its appeal was the lack of substantial evidence, but it also argued the jury's findings were inconsistent and the trial court could not resolve the inconsistency in post-trial proceedings. Tom and I worked on the appeal and he argued the case before the Court of Appeal.

On December 18, 2009, just seven days before Christmas, the Court of Appeal filed its opinion, affirming the judgment. It concluded there was sufficient evidence of negligent training, and that Leading Edge waived its challenge to the trial court's post-verdict reallocation. The court held that it was incumbent upon Leading Edge to object to the post-trial proceedings and its failure to do so was a waiver of the point.

Congratulations, Tom!


A really important new case on Hanif

Here's a case that plaintiff's personal injury lawyers have been hoping for:  Howell v. Hamilton Meats & Provisions, Inc. (2009) 2009 WL 4021368.  In that case, the plaintiff was seriously injured when her vehicle was struck by a truck driven by defendant's employee while he was attempting to make an illegal U-turn across the lane in which plaintiff was traveling.  The jury awarded plaintiff $689,978.63, including $189,978.63 for past medical expenses.

The defendant employer first raised the issue of reducing the past medical expense to what was actually paid in a motion in limine to preclude evidence of amounts not paid by the plaintiff.  Plaintiff argued she was entitled to present evidence of the "gross amount of all medical bills" under Helfand v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1

After judgment, defendant brought a Hanif motion, seeking a reduction of the verdict.  It argued the plaintiff did not incur or expend monies for the full value of the medical bills, and thus, the defendant was entitled to the benefit of the "negotiated rate differential."

Plaintiff opposed the motion, arguing she was not a Medi-Cal beneficiary, and therefore, she could recover the full amount of her medical bills under the collateral source rule.  She also argued she incurred medical expenses for the full amount, even signing an agreement that she would be financially liable for all expenses, including those not paid by her insurance.  Plaintiff claimed the defendant shouldn't receive the benefit of her thrift and foresight in obtaining health insurance.

The trial court granted the defendant's motion to reduce the damages by $130,286.90 to $59,691.73, which was the amount of the negotiated rate actually paid by plaintiff's insurers.  It concluded the plaintiff was only entitled to be made whole and should not receive overcompensation for her injuries.  Plaintiff appealed.

The Fourth Appellate District, Division One was faced with the issue was whether a personal injury plaintiff, who has private insurance, may recover the full economic damages for past medical expense billed by the health care providers under the collateral source rule or should that amount be reduced to what the insurer paid as the agreed-upon full payment.

In an opinion written by Justice Nares, the appellate court reversed, finding the plaintiff was entitled to receive compensation for the detriment caused to her pursuant to Civil Code section 3333, which included objectively verifiable monetary losses, such as medical expenses.  Civil Code section 1431.2(b)(1).  In addition, the collateral source rule barred a deduction for compensation received from a source other than the tortfeasor.  In summary, the plaintiff should receive the benefit of her insurance, and not the defendant, who would then otherwise receive a windfall.  (See Rstmt. 2nd of Torts, sec. 920A.)

The court found Hanif v. Housing Authority (1988) 200 Cal.App.3d 3d 635 to be inapposite.  The minor in  Hanif incurred no personal liability because the charges were billed to Medi-Cal and he lacked the capacity to enter into a financial responsibility agreement with the providers.  As a consequence, the court in Hanif did not address the issues presented by Howell.  The court also disagreed with the holding in Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 [trial court erred in permitting jury to award provider's normal rates, rather than the reduced rates it paid pursuant to agreement].

The appellate court in Howell cited Justice Eileen Moore's concurring opinion in Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 that "[w]ithout statutory authority or the Supreme court's lessing, the Haniff/Nishihama line of cases divorced the collateral source rule from the complicated area of medical insurance," and, "[a]bsent such approval, Hanif/Nishihama simply goes too far."  The Howell court made it clear that making chances to the collateral source rule was best left to the Legislature.

The court also disagreed with Greer v. Buzgheia (2006) 141 Cal.App.4th 1150 about the propriety of bringing a post-trial motion to reduce a jury's award of medical expenses.  Since it had concluded the negotiated rate differential is a collateral source benefit, then the post-trial motion is not necessary, appropriate, or authorized.

The opinion in Howell was filed on November 23, 2009.  We can expect to see a petition for review to the California Supreme Court, as does the plaintiff's attorney, John J. Rice, who is prepared to oppose it.  He notes that "over the last five years, that sum [negotiated rate differential] represents over one billion dollars that hasn't been paid to plaintiff's attorneys."  More to come on this issue      . . .