Two Bills Enacted; One Vetoed
Although a considerable segment of the state government's resources was consumed with general budgetary wrangling, two bills were enacted (effective January 1, 2009) and one bill vetoed with features involving attorney's fees/cost awards.
Enacted Legislation
1. Senate Bill No. 1140 (Steinberg) — Elder Financial Abuse — Approved by the Governor on September 28, 2008
Existing law requires that specified standards regarding the imposition of punitive damages on an employer based upon the act of an employee be satisfied before compensatory damages and attorney's fees are awarded in a civil action for elder financial abuse. SB No. 1140 eliminated the requirement that these standards be satisfied before compensatory damages, attorney's fees, and costs are awarded.
Specifically, Welfare and Institutions Code section 15657.5 was amended to read: "(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs." Section (d) was written to make sure that "[t]he standards set forth in subdivision (b) of Section 3294 of the Civil Code regarding the imposition of punitive damages on an employer based upon the acts of an employee … shall not apply to the recovery of compensatory damages or attorney's fees and costs."
2. Assembly Bill No. 2433 (Krekorian) — Subpoena Motions Involving "Personal Identifying Information" and Internet Service Provider Free Speech Subpoenas — Approved by the Governor on September 30, 2008
Existing legislation authorizes trial courts to discretionarily award attorney's fees and costs to a successful party in a motion involving a subpoena for consumer personal records or employment records upon a finding the motion was brought or opposed in bad faith, without substantial justification, or that any requirement of the subpoena was oppressive.
Code of Civil Procedure sections 1987.1 and 1987.2(a) were amended to provide that "a person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person's exercise of free speech rights" or the opposing person, in the appropriate law and motion proceeding, can seek the same discretionary award of fees and costs as litigants whose consumer personal records or employment records are subpoenaed–if they satisfy the same bad faith, without substantial justification or oppressiveness standards.
Code of Civil Procedure section 1987.2(b), added by AB 2433, now requires that a trial court must award reasonable attorney's fees and reasonable expenses to a party successfully moving to quash or modify "a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code, if the moving party prevails, and if the underlying action arises from the moving party's exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action …." (BLOG OBSERVATION–This resembles the showing which needs to be made in an anti-SLAPP motion, which also makes mandatory an award of fees to the moving defendant who prevails.)
Vetoed Legislation
Senate Bill No. 1113 (Migden) — Allowing Expert Witness Costs As Recoverable in CCP 1021.1 Lawsuits — Vetoed by the Governor on September 30, 2008
This bill sought to amend Code of Civil Procedure section 1021.5 (the private attorney general statute) to authorize trial courts to award prevailing plaintiffs non-statutory costs, including expert witness fees, in addition to attorney's fees already recoverable under section 1021.5. The bill would have sought to overrule Olsen v. Auto. Club of So. Cal., 42 Cal.4th 1142 (2008), which would not allow recovery of such non-statutory costs.
In returning the bill without his signature, Governor Schwarzenegger stated: "This bill would significantly expand the cost recovery for successful plaintiffs under the private attorney general statute to include the recovery of costs and expert witness fees. Broadening already substantial awards could encourage more unfounded litigation and exponentially increase liability in potentially unjustifiable situations. During a year where the economy is struggling to get back on its feet, the effects could be devastating."