From the President

The Good, the Bad and the Ugly

by Eric Andresen

The good is that the California Apartment Association (CAA) is the only organization in years to move an anti-trial lawyer piece of legislation as far as they did. The bad is the bill, although getting through the Senate with no opposition, died in the Assembly Judiciary Committee. The ugly, is the hardball politics that were played to defeat the bill.

Senate Bill 1722, written and sponsored by CAA and carried by Senator Denise Ducheny (D-San Diego), was created to close a loophole in Proposition 65. Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, is blatantly abused by trial attorneys. It’s bad enough that property owners are sued—at no fault or liability to themselves—and after settling one suit, another attorney comes along and sues all over again for the same cause of action. The practice, called “copycatting,” violates the principle of res judicata—the common law that protects individuals and businesses from being sued twice for the same thing.

Unethical trial attorneys have found a way around res judicata by filing new suits based on one or two new chemicals or based upon the premise that the initial settlement really did not protect the public and therefore needed to be heard again.

CAA’s bill would have put a stop to these copycat lawsuits by affirming that once a settlement is approved by a court, another attorney does not have the legal authority to file another nearly identical suit against the same defendant. It was designed to plug a massive loophole that unscrupulous attorneys are using to line their own pockets.

The bill started out on the Senate side of the state capitol, and, through suffering a few bumps along the committee trail, got off the Senate floor several weeks ago on a 38-0 vote. That was an awesome accomplishment in its own right. Once a bill leaves the initial house it must go through a similar process in the other house, in this case, over in the Assembly.

In the process of moving this bill, CAA’s lobbyists and leaders were faced with a major obstacle: the trial lawyers’ vigilant opposition to the bill. On the other hand, the Sierra Club and other environmental groups, as well as the attorney general, had removed their opposition to the bill. At the same time, CAA had rallied tremendous support from the business community.

The first stop in the Assembly was the Judiciary Committee, chaired by Ellen Corbett (D-San Leandro), who is an attorney herself. Here, the trial lawyers worked overtime to kill the bill. And it took some ugly, hardball politics to get the job done.

Here’s how it went: At the first scheduled committee hearing, Committee Chair Corbett insisted that the bill not be heard, and actually closed the hearing prior to a presentation on CAA’s bill. The bill was then rescheduled for a hearing two days later, giving the trial lawyers additional time to muster opposition. At the final hearing, the Committee Chair urged committee members not to vote for the bill unless CAA amended it to address the demands of the trial lawyers. Those amendments would have rendered the bill useless in helping the business community fight copycat lawsuits. The bill needed six votes to pass the committee. Four votes were cast in favor of the bill: Bates (R-Laguna Niguel), Dutton (R-Rancho Cucamonga), Harman (R-Huntington Beach), and Montanez (D-Mission Hills). Five members abstained on the bill, which is the same as a no vote: Corbett (D-San Leandro), Jackson (D-Santa Barbara), Lieber (D-Mountain View), Longville (D-San Bernardino), and Steinberg (D-Sacramento); and two committee members were temporarily absent: Laird (D-Santa Cruz) and Levine (D-Van Nuys). Now it’s not unusual for committee members to step out of any hearing—usually briefly—as some other issue needs to be addressed or they need to make a presentation of their bills to another committee. What usually happens is that the vote is called for, but some time is given for legislators to return to committee to cast their vote. Before the remaining two members could return to the Judiciary Committee to vote, Assembly Member Corbett closed the committee and declared the bill had failed passage. No reconsideration was granted, although reconsideration is standard operating procedure in other legislative committees.

CAA has called upon its members who are in Assemblymember Corbett’s district to voice their displeasure with the committee’s handling of the bill. On a positive note, even though the bill failed passage, the issue of stopping abusive Prop. 65 lawsuits by bounty hunters is not dead. Political pressure continues to build against those who refuse to agree to reasonable measures to end the lawsuit abuse. CAA remains committed to this cause and is currently exploring options for either this legislative session or next year.

Stay tuned. This battle isn’t over yet.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. In addition to serving as the current President of SFAA, Eric is also the Vice President of Political Affairs for PPMA and is the original author of the PPMA Residential Tenancy Agreement. Eric also serves as Vice President of the California Apartment Association, and he is extensively involved in other industry organizations here in San Francisco and at the state level. He owns and operates West Coast Property Management and West Coast Property Maintenance Companies. He can be reached at eric@wcpm.com. Copyright © 2004.