President John F. Kennedy’s Civil Rights Act of 1964 was a landmark piece of federal legislation in the United States that banned major forms of discrimination against African Americans and women, including racial segregation and put an end to the “separate but equal” Jim Crow laws. It also prompted some state legislatures to pass their own state civil rights statutes. And it really caused the civil rights movement to peak under the peaceful resistence leadership of Dr. Martin Luther King, Jr. But the culmination of the civil rights laws has left a very complicated web of hoops and pitfalls for the unweary or inexperienced personal injury lawyer attempting to litigate a police brutality or other type of civil rights case.

The Civil Rights Act of 1964 is codified in the federal laws at Title 42. Section 1983 of Title 42 is the heart of the law for a lawyer with a police beating or racial discrimination type of case. That section makes it unlawful for “every person who under color of any [law] of any State law . . . subjects or causes to be subjected, any citizen of the United States or any other person . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law.” In plain English, it means that a person acting under the authority of state law, that violates a person’s Constitutional rights, may be civilly liable to the person whose rights were violated. Typically, a person acting under authority or color state law is a police officer. The Constitution guarantees many rights such as the right to be free from excessive force (beating), warrantless searches and false arrest. So if a police officer violates these rights, they are exposed to liability under the Civil Rights Act.

It did not take long for the first glitch to reveal itself in the statute. On November 26, 1965, six unknown agents of the Federal Bureau of Narcotics raided the Brooklyn home of Webster Bivens. They arrested him in front of his wife and kids for narcotics violations and booked him into the jail. A search of Mr. Bivens home revealed no drugs and he was later released. Bivens sued the Federal Bureau of Narcotics and its agents under section 1983 alleging that the agents violated his right under the civil rights act to be free from warrantless searches and seizures (false arrest). The trial court dismissed the case on the grounds that the federal agents were operating under authority or color of federal law not state law. The language of section 1983 only makes state actors liable.

The Bivens case went up all the way to the United States Supreme Court. Six years after his arrest, the Supreme Court reversed the trial court’s ruling. They reasoned that it was doubtful that the legislature meant to make state and local police officers liable but permit federal police officers to violate constitutionally protected rights. But congress never amended the statute. So if a San Diego injury attorney wants to bring an action against federal officers, it must be brought as a “Bivens Action” under the authority of the United States Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

It is a very important distinction for personal injury attorneys litigating civil rights cases in San Diego. San Diego has a very high population of federal officers due to its proximity to the Mexican border. Customs and Border Patrol is a federal agency. Department of Homeland Security is a federal agency. Immigration and Customs Enforcement is a federal agency. Immigration and Naturalization is a federal agency. If the unwary lawyer sues any of these agencies under section 1983, the case will be dismissed. And if the statute of limitations has run when the case is dismissed, it can not be refiled.

The statute of limitations for childhood sexual abuse in California is codified at section 340.1 of the Code of Civil Procedure. Generally speaking, a plaintiff in an action for childhood sexual abuse must file their complaint within eight (8) years from the date the plaintiff attains the age of majority or within three years from the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, which ever period expires later.

This statute applies to three different types of actions within the general heading of childhood sexual abuse. The three types of actions are (1) actions against the person committing the act of childhood sexual abuse, (2) actions for liability against a person or entity who owed a duty of care to the plaintiff, where a wrongful or negligent act by that person or entity was a legal cause of the childhood sexual abuse which resulted in injury to the plaintiff, or (3) actions for liability against a person or entity where an intentional act by that person or entity was a legal cause of the childhood sexual abuse which resulted in injury to the plaintiff in an action for childhood sexual abuse.

Subdivision (b)(1) of section 340.1 states that actions described in subsections (2) and (3) above may not be commenced on or after the plaintiff’s 26th birthday. However, subsection (b)(2) provides certain exceptions to the limitation of subsection (b)(2) when the person or entity knew or had reason to know or was otherwise on notice of any unlawful sexual conduct by an employee, volunteer, representative, or agent and failed to take reasonable steps to implement reasonable safeguards to avoid future acts of unlawful sexual conduct.

To determine whether the facts of your case fall withing the definition of actionable childhood sexual abuse within the meaning of section 340.1, the personal injury attorney needs to scan down to subsection (e). Subsection (e) specifically lists seven sections of the California Penal Code. One needs to look up these sections to determine whether the conduct in their case is proscribed by one of those sections. If so, then the conduct is civilly actionable under section 340.1.

This article is intended to provide general information on the statute of limitations for a cause of action in California based on childhood sexual abuse. It is not meant to he exhaustive and much of the statute is not even addressed by this article. The statute is much longer than this brief summary. It is complicated and the facts of each case are different and may be treated differently under the statute. This article is not meant to be relied on for filing any particular case. For a proper analysis, please contact a San Diego personal injury attorney practicing in the area of childhood sexual abuse for advice on how this statute applies to your case.

Under California law, “the owner of a dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog.”  It does not matter if the dog has never bitten anyone before.  California does not have what some lawyers call the one-bite rule.  The owner must pay compensation to anyone that is bitten by their dog.

There are a only a few limited exceptions to the California dog bite statute that typically do not apply in most dog bite cases.  Some of these exceptions are for police and military dogs acting in their official capacity, when a person is on the dog owner’s land illegally or without permission or when a person has “assumed the risk” by seeing the hostility of the dog and opening a gate and proceeding into a yard.  Veterinarians and professional dog handlers are also considered to have assumed the risk of being bitten by dogs they have chosen to treat or handle.

Under California law, a person bitten by a dog is entitled to recover all medical expenses related to the bite, including ambulance, hospital bills and doctor bills.  The victim is also entitled to recover the cost of future medical care such as plastic surgery and skin grafts.  The dog bite victim under California law is also entitled to recover money for “pain and suffering and emotional distress.”  Pain and suffering and emotional distress is not a set amount; it is a phrase of art used in the law.  The amount can not be looked up in a book.  The amount is determined by a jury based on the evidence that is presented by the dog bite victim’s lawyer and the oral argument of that lawyer.  The amount of money a dog bite victim receives for pain and suffering and emotional distress is usually the largest monetary amount in a jury’s verdict.

Does it matter what lawyer is used to represent a dog bite victim?  Absolutely.  Dog bites are covered by most homeowner insurance policies, renter insurance policies and insurance policies that businesses have for their business premises and conducting business (typically called Commercial General Liability Policies or just “CGL”).  Since the injuries are typically covered by the dog owner’s insurance, the dog bite victim will be fighting against big firm lawyers that are well trained, skilled and have a lot of staff and resources.  These lawyers are often referred to in the industry as “insurance defense lawyers” if they are employed by a private law firm or “in-house counsel” if they are actual employees of the insurance company.

Behind the insurance defense or in-house counsel lawyer is a person called an “insurance adjuster.”  The insurance adjuster (or just “adjuster”) is an employee of the insurance company.  They typically handle a number of cases at any given time.  They make the decision as to whether a case should be settled by a payment to the dog bite victim or whether the case should be taken to trial.  The insurance defense or in-house lawyer is the warrior.  They are the ones doing battle in court.  But they report their battles back to the insurance adjuster who has the final say over whether payment will be made and how much the payment will be, if any, to the dog bite victim.

One of the most important considerations to the insurance adjuster is whether or not the dog bite victim will get a verdict in excess of the insurance policy limit on the homeowner’s, renter’s or CGL insurance policy.  If the adjuster had an opportunity to settle the case within the insurance policy limits and did not, a verdict in excess of the policy limits exposes the insurance company to even greater liability.

The amount of the verdict depends on the skill, expertise and proven track record of the dog bite victim’s attorney.  If the other side believes your attorney can get a substantial verdict against them, it is going to increase the amount of money they will offer you so that your lawyer does not try the case against them.  This is how a dog bite victim gets the highest possible monetary amount for their case.  So it is very important to choose the right San Diego injury lawyer.

Have these stricter laws decreased the number of dog bite victims?  Unfortunately, no.  Merritt Clifton, editor of Animal People, is currently engaged in one of the most comprehensive dog bite studies ever conducted.  Mr. Clifton has been compiling dog bite statistics from the United States and Canada since September 1982.  The study is ongoing and new dog bite statistics are added to the study as they are reported.  His most recent report is titled Dog Attack Deaths and Maimings, U.S. & Canada, September 1982 to December 26, 2011.  Here is a summary of some of Mr. Clifton’s findings on the ten breeds that have bitten the most victims.

A study performed by the United States Department of Health and Human Services, Agency for Healthcare Research and Quality published in 2010 showed that the number of Americans hospitalized for dog bite has almost doubled over a 15 year period.  In 2008, there were 316,200 emergency room visits resulting from a dog bite.  The average cost of a dog-bite related hospital stay was $18,200 which is twice as much money as the average injury related hospital stay.  California ranks number five in the country for dog bite fatalities.

What San Diego Car Accident Attorneys Should Know

About Potter and the Pedestrian Right of Way

            San Diego personal injury attorneys should be familiar with California Vehicle Code section 21954 and the cases interpreting that code section when they take on the car accident case involving a pedestrian.  It is a misnomer in car accident cases that the pedestrian must be within a marked crosswalk in order for there to be liability upon the driver.  It is true that section 21954(a) states that a pedestrian must yield the right of way to motorists if they are not in a marked crosswalk.  However, subsection (b) to that same section states that subsection (a) does not relive the driver of its duty to use ordinary care for the safety of pedestrians upon the roadway.

One of the first California cases interpreting section 21954 was the appropriately named 1929 decision of Potter v. Driver (1929) 97 Cal.App. 311.  Potter was a pedestrian versus car accident case.  It is an interesting read and the San Diego accident lawyer should familiarize themself with the Potter case.  Potter was crossing the street outside the crosswalk.  He looked both ways and saw no cars so he proceeded.  He kept looking for cars and saw none until Mr. Driver’s vehicle was upon him causing personal injury.

The court noted section 21954 and stated that it created a reciprocal duty upon both the driver of the automobile and the pedestrian to use ordinary care upon the roadway to avoid car accidents and personal injury.  The driver of the automobile has no right to assume the roadway is clear of pedestrians because there are no crosswalks.  Both are required to exercise that degree of prudence and car upon the roadway to avoid personal injury.

San Diego personal injury lawyers should not shy away from a car accident case because the pedestrian was outside of the crosswalk.  Likewise, the pedestrian in the crosswalk can also be the cause of personal injury.  Just like the driver of an automobile must use due care to prevent personal injuries to pedestrians that are not in the crosswalk, the pedestrian is not bullet proof simply by virtue of being in the crosswalk.  A pedestrian in the crosswalk against the do not cross light is not using due care.  The pedestrian that darts into traffic may likewise not be

using due care even though they darted into traffic while in a crosswalk.

Diligent San Diego car accident attorneys must make good use of the client interview and reviewing all documentation including the police incident report.  San Diego car accident attorneys should not shy away from a case because the pedestrian client was not in a crosswalk.  Even in light of the somewhat pro-crosswalk drafting and appearance in section 21954, the general rule of Potter is a reciprocal duty of both the driver and the pedestrian.  Shepardize the Potter decision and the injury attorney will find that Potter is just the beginning of a line of cases in California that support this reciprocal duty.  Just because your pedestrian was outside the crosswalk is no justification for motorists to run them down.

The purpose of venue in a personal injury case is to give the defendant some control in the choice of forum.  Alexander v. Superior Court (2003) 114 Cal.App. 4th 723, 731.  When plaintiff fails to heed the venue rules, the court must transfer the entire case to any proper forum chosen by the moving defendant.¹  Brown & Weil, supra, section 3:551-3:552 (emphasis original).

“The right of a defendant to have certain personal injury actions tried in the county of his residence is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decision.”  Goossens v. Clifton (1946) 17 Cal.App.2d 44, 48.  “In passing on a motion for change of venue the court must take the pleading as it is written. . . .  All ambiguities will be construed against the pleader to the end that a defendant shall not be deprived improperly of his fundamental right to have the cause tried in the county of his residence.”  Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 334.

The “general rule of venue” in personal injury cases is set forth in Code of Civil Procedure section 395 as follows: “Except as otherwise provided by law . . . the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.’”  Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736, 742.

The injury attorneys first step in a venue analysis is classifying actions as “local” or “transitory.”  Brown & Weil, supra, Chapter 3, at section 3:457.  Local actions are those dealing with land and must be filed in the county were the real estate is located.  Code of Civ. Proc. §392(a)(1).  Transitory actions are those in which “the claim may have arisen anywhere.”  Brown & Weil, supra, Chapter 3, at section 3:458.  “When the main relief sought is personal, the action is transitory.”  Brown & Weil, supra, Chapter 3, at section 3:457.  “The defendant has the right to have a transitory action against him or her tried in the county were he or she resides.”  Brown & Weil, supra, Chapter 3, at section 3:481 (emphasis original).

The classification of causes of action as transitory dates back to the California Supreme Court opinions in Graham v. Mixon (1917) 177 Cal. 88 and Monk v. Ehret (1923) 192 Cal. 186.  Graham was a personal injury action for libel.  Graham, supra, 177 Cal. at 89-90.  The court held that damages to reputation are personal, to wit, personal injury, thus making the action transitory.  Therefore, the proper venue for personal injury action for libel is the residence of the defendant.  Graham, supra, 177 Cal. at 92-93.  Monk expanded that rationale to false imprisonment cases.  The damages are personal and the case must be tried in the county where the defendant resides.  Monk v. Ehret, supra, 192 Cal. at 192-193.  Since that time, using the same analysis, California courts have held all non-bodily injury torts to be transitory.  Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 333.  The only proper venue for these actions is the county where the defendant resides: Lucas v. Lucas (1937) 18 Cal.App.2d 453, 455 (conspiracy to defraud causing mental harm, monetary loss, anguish, humiliation and great embarrassment); Carruth v. Superior Court (1978) 80 Cal. App.3d 215, 220 (malicious prosecution resulting in financial loss and emotional distress); Plum v. Newhart (1931) 192 Cal.App. 73, 75 (lawsuit for injury to reputation); Cacciaguidi v. Superior Court (1990) 226 Cal.App.3d 181 (action for conspiracy and abuse of process); Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 219 (action for fraud and slander resulting in damage to business reputation); Howe v. Tucker (1933) 219 Cal. 193, 194 (action for reformation causing financial injury); Beutke v. American Securities Company (1955) 132 Cal.App.2d 354, 359 (action for cancellation of trust deed causing financial injury); Gallin v. Superior Court (1991) 230 Cal.App.3d 541, 546 (Business and Profession Code 17200 action must be tried in the county where the defendant resides); Martinez v. Martinez (1950) 99 Cal.App.2d 425, 427-428 (reformation and injunction actions transitory and must be transferred to county of defendant’s residence); Brown v. Superior Court (1984) 37 Cal.3d 477, 481 (intentional infliction of emotional distress is transitory and must be tried in the county were the defendant resides).

Even though the defendant has many rights with regard to venue, the personal injury attorney should always remember that venue can be waived.  Objection for venue must be made at the time of the answer or demurrer.  The above rules apply “on timely motion, the court must order a transfer of an action ‘whenever the court designated in the complaint is not the proper court.’”  Brown & Weil (2008) Civil Procedure Before Trial, Jurisdiction and Venue, Chapter 3, section 3:550)(emphasis original), citing, Cal. Code of Civ. Proc. §§396b, 397(a).

All San Diego personal injury attorneys should become familiar with the claim filing requirements in cases involving California Governmental entities before taking a case for personal injuries against such an entity.  In general, before a personal injury lawsuit can be filed against a public entity, a formal claim must be filed against the public entity and rejected.  If that is not done, the personal injury lawsuit against the public entity is subject to demurrer which will likely be sustained without leave to amend.

The most important thing an injury lawyer should know about the claim form requirement is that the claim form must be filed within six months from the date of the injury.  This is true even though the statute of limitations for most personal injury claims in San Diego is two years.  In reality, the statute of limitations in a personal injury action against a public entity is six months if the claim form is not filed.

The stated purpose of the claim is to provide the public entity time to evaluate the claim and determine if they want to pay the claim and save the expense of litigation.  In reality, it is just a hoop that the knowledgeable personal injury lawyer must jump through in order to perfect the injured plaintiffs right to sue a public entity.  And of course it is a trap for the unknowledgeable injury attorney.  Also, if the action against the public entity is barred, then the action against the public employee will also be barred.

During the initial client interview in a personal injury case, it is important to determine whether a public entity is involved.  Some cases are easy for the injury attorney to make this determination.  For example, an injured party that is run over by a San Diego Police Department vehicle.  The attorney will have to file a claim against the City of San Diego within six months of the accident.  The more subtle example government operated hospital such as the University of San Diego Medical Center.

Many public entities have claim forms.  Although some do make them easy to obtain.  Attorneys should know that using the entities form, while preferred, is not required.  The claim must show the name and address of the claimant, the date and place of the injury, a description of the incident causing injury, the damages or injury suffered, the names of the public employees at fault and the amount of the claim.  The lawyer should make a duplicate copy of the claim and should have the governmental entity stamp that upon filing the original.  That is often referred to in injury cases as the “conformed” copy and is used to show proof that the claim was filed.

If the claim is not denied within forty five (45) day from the date it is filed, then the claimant or plaintiff can treat it as denied and the personal injury claim is perfected.  The San Diego injury attorney should make sure to plead in the complaint the fact that the claim was submitted on a certain date that is within six months of the injury and that it was thereafter denied by the public entity or by operation of law (expiration of the 45 day period).  If that is not done, the complaint is technically subject to a demurrer as it related to the public entity.  See Government Code section 905, et seq. for exceptions and details related to these claims.

Under California law, a plaintiff is generally barred from discovering the net worth of a defendant. There are, however, certain recognized exceptions. One such exception is found in Civil Code section 3295(c). In relevant part, section 3295(c) states that “the court my at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Section 3294 states that punitive damages can only be awarded upon a finding of oppression, fraud or malice.
They say that punitive damages are often pled and rarely proven. Yet in the righteous injury case with strong evidence of to support a finding of oppression fraud or malice, the skilled personal injury lawyer should prepare declarations from the individuals that show the defendant engaged in oppression, fraud or malice. It must be used in the injury action where there is strong evidence of oppression, fraud or malice. This is because the standard is not prima facie. The lawyer must show a “substantial probability” of prevailing on the punitive damage claim. Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565; Code of Civ. Proc. §3295(c).
Why is this such an important weapon for the personal injury lawyer? It is important for three reasons. First, it is the lawyer’s burden to establish the net worth of the defendant in the punitive damage phase of the trial. If the lawyer cannot prove net worth, then the damage claim fails. So it is important to have these documents available to evaluate the sufficiency of the disclosure and to evaluate whether there will be enough evidence to establish net worth. Second, defendants may become uncomfortable with having to disclose their net worth. Some personal injury cases have been known to settle simply because a defendant did not want to disclose their net worth. And third, it should send a strong message to the defense lawyer, insurance adjustor and defendant if the judge makes a judicial finding that there is a substantial probability that the plaintiff will prevail on a claim for punitive damages. However, use the motion wisely. There could be a “backfire” effect if the motion is not granted. The defense lawyer would argue that there is no substantial probability that punitive damages will be awarded and it may embolden their defense position.
A good example of when to file such a motion is in a road rage case. Nobody likes road ragers; not jurors or judges. I had a personal injury case where two drivers were going at it on the freeway. One brake checked the other. The car that was checked lost control and did a sling shot across all lanes of traffic and struck my plaintiff, a plumber, minding his own business and on the way to his next job. One road rager admitted to the police that he brake checked the other. He also bent his windshield wiper washers so that he could spray cars that were following him too close (which he did in this case). And the car that was following too close was a woman that worked for the County Child Protective Services. Her job was to take children away from unfit parents. And her eight year old son was in the car when she engaged in this conduct and he broke his arm. In summary, use a Section 3295(c) motion in your righteous personal injury cases with strong evidence of oppression, fraud or malice. You may be pleasantly surprised by how the granting of such a motion affects the posture of your case.