Judicial Hellholes and California: A Perfect Combination?

The American Tort Reform Association (ATRA) has just published its annual list of “Judicial Hellholes” and, no surprise, California is on the “Watch” list. This is no surprise because the California judiciary has abdicated its gatekeeper responsibility.

There are likely any number of reasons for this “recognition” of the California judicial system, but let’s look at one major reason-- public nuisance litigation.

Public nuisance, as misapplied by the plaintiffs’ bar, would neuter the long-standing law of product liability. Plaintiffs, unable to identify which manufacturer’s product caused the alleged harm, try to cast a wide net of public nuisance to snare any company that manufactured, distributed, promoted or sold the product, regardless of how many decades ago and regardless of whether it was defective, claiming these entities substantially contributed to creating and maintaining a public nuisance. In at least one instance, a California Court of Appeals agreed with this mottled thinking and has allowed a public nuisance claim to proceed against companies some of which last manufactured lead pigment 50+ years ago. Surprisingly, the California Supreme Court declined to hear the appeal.

And as if that were not enough to seal California’s position on the ATRA Watch List, the same court of appeal, in the same case, has (not surprisingly) permitted the governmental entity plaintiffs to be represented by contingency fee counsel. This despite clear direction from the California Supreme Court that disallows such arrangements in public nuisance cases brought by the government. See People ex rel. Clancy v. Superior Court, 39 Cal.3d 740 (1985). [FindLaw log in required]. For an excellent overview and discussion of this issue, see Public Nuisance: Public Entity Litigation and Contingency Fee Counsel.

This time (surprisingly) the California Supreme Court agreed to hear this contingency fee issue appeal.

The Civil Justice Association of California (CJAC) finds it “hard to dispute the California ‘watch’ classification” and sees both positive court decisions and promising rulemaking work to improve certain areas of the state’s judicial system that CJAC believes will pull the judiciary back from the “abyss.” Perhaps, and we respect CJAC’s opinion on those points.

Still, when it comes to the pending appeal on contingency fees, it remains to be seen which court appears for oral argument: Gatekeeper or Hellhole.