Vanessa Kachadurian- Assemblywoman Halderman introduces bill to eliminate frivilous lawsuits

Aide Christine Bedoyan-Caprielian, State Assemblywoman Linda Halderman M.D. and Vanessa Kachadurian

I am very proud that Halderman has introduced this bill, I have known her to be a fantastic physician and advocate for women with breast cancer. Now, Linda is ridding us of a cancer called "frivilous lawsuits"

http://www.fresnobee.com/2011/06/10/2422260/advocates-in-fresno-criticize.html
Advocates in Fresno criticize frivolous lawsuits
Posted at 11:13 PM on Friday, Jun. 10, 2011
By Victoria Guida / The Fresno Bee
Frivolous lawsuits are hindering job growth and driving up home prices in the Central Valley, an advocacy group said Friday morning in Fresno.
At a news conference, members of California Citizens Against Lawsuit Abuse accused lawyers of churning out lawsuits that harass companies and hinder businesses, all for the sake of generating legal fees.
The organization examined recent legal cases involving building projects in the area and estimated how many new jobs were not added as a result of costs and delays associated with those lawsuits. The tally: More than 2,000 jobs in the Valley were affected, according to a report the organization released Friday.
CALA joined others in support of a bill proposed by Assembly Member Linda Halderman, R-Fresno, that would require attorneys consulting with homeowners on a possible lawsuit against their homebuilder to disclose that, for instance, there is no guarantee of financial recovery from a lawsuit and that a lawsuit could affect the property's value.
"There are some bad apples who approach homeowners and tell them they can be guaranteed a quick recovery by suing their homebuilder, regardless of whether they have defects in construction or not," Halderman said. "This takes away potential jobs because construction cannot happen in this litigious environment."
Paul Olson, a Tulare homeowner, said a law firm has been "bombarding" his neighborhood with notices asking him and his neighbors whether they would participate in a class-action lawsuit alleging faulty workmanship by the homebuilder.
"This is complete and utter nonsense," Olson said. "None of the neighbors, including myself, have experienced any of the problems alleged by this out-of-town law firm."
Mike Prandini, CEO of Building Industry Association of Fresno and Madera counties, said such lawsuits also increase the price of homes because homebuilders must factor their insurance premiums into the cost of construction.
The bill failed to pass committee March 15. The committee unanimously granted reconsideration, and Halderman said she is optimistic but noted that it's "going to be an uphill battle."
Before the vote, Consumer Attorneys of California wrote an opposition statement, saying the bill put litigation in an unfairly negative light and arbitrarily singled out construction-defect lawsuits.
Mark Milstein, a member of CAOC, said notices sent out are meant to inform about litigation happening in case other homeowners have similar problems. He said each home is evaluated individually.
As for frivolous lawsuits, Milstein said he has never handled a case in which there weren't at least some defects.
"If they're not able to recover, it doesn't make financial sense to sue," Milstein said. "The intent of [the bill] was to scare people off from pursuing their legal rights."
He also referred to the claim that these lawsuits drive up the price of homes or decrease property value as "ridiculous," given the state of the economy.

Vanessa Kachadurian, Truth or defamation?

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." -Winston Churchill


Truth is a complete defense to a claim of defamation.
It is the great equalizer in any libel or slander suit. It is what the plaintiff's defamation lawyer fears the most; that what his client's accuser says is true. It does not matter that the defendant made the statement out of malice or out of bad faith, so long as the statement is true. Washer v. Bank of America (1948) 87 Cal.App.2d 501, 509; Campanelli v. Regents of Univ. of Calif. (1996) 44 Cal.App.4th 572, 581; Rest. 2d, Torts § 581A; Francis v. Dun & Bradstreet (1992) 3 Cal.App.4th 535, 540 (credit report, even one causing harm, is not defamatory if true); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953 (statements as to dentist's misconduct were true given Board of Dental Examiner's determination that dentist had been grossly negligent and in violation of provisions of Business and Professions Code).
So what does it mean to establish truth? Does that mean the defendant must establish the truth of his statements in every particular? Surprisingly, the answer is no.
It is sufficient if the defendant proves that the substance or the "gist" of the statement is true. Heuer v. Kee (1936) 14 Cal.App.2d 710, 714; Gantry Const. Co. v. American Pipe & Const. Co. (1975) 49 Cal.App.3d 186, 194 ("The concept that it is the gist or sting of the alleged defamatory statements that must be false rather than the specific details of the charge is deeply rooted in our common law."). Weller v. American Broadcasting Cos. (1991) 232 Cal.App.3d 991, 1009, footnote, 17; See Campanelli, supra (admission that plaintiff basketball coach engaged in tirades so bad that seven players were thinking of quitting established truth of defendant's assertion that players "were in trouble psychologically").
But who bears the burden of proof? The previous rule in California was that the plaintiff needed to plead that the statements were false. This is no longer required. The burden of pleading and proving that the statements are true rests squarely on the shoulders of the defendant. See Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.


http://www.defamationlawblog.com/2009/08/articles/defamation-basics/truth-is-a-defense-to-a-claim-of-defamation/

Defamation - New York Court of Appeals Addresses Fact Versus Opinion in Summary Judgment Context
Halstead v. Brokaw (Motion for leave to appeal granted on Dec. 10, 2010) 74 A.D.3d 1283 (2010)
The appeal concerns one of three related actions to recover damages for defamation. The novel issue appears to concern a court’s determination of whether a statement is one of opinion or of fact. The Court of Appeals will likely re-examine its holding in Gross v. New York Times Co., 82 N.Y.2d 146 (1993), which set forth the following relevant factors for a court to determine whether a statement is an opinion or of fact: “(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to 'signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact.' " (Id. [quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 292 [1986]).
A unanimous panel at the Second Department granted the defendants’ motion for summary judgment dismissing the second action. The Court held that the plaintiff in action No. 2 failed to raise a triable issue of fact.

Congratulations to Dan Balsam - California Lawyer

This summary is not available. Please click here to view the post.