Outgoing CJAC president reflects on Prop 65, housing crisis, asbestos litigation and recent Judicial Hellhole report

By Karen Kidd | Dec 28, 2016

Only days before the end of Kim Stone's time as the third Civil Justice Association of California president, American Tort Reform Association released its latest Judicial Hellholes list, ranking the state No. 2.

Outgoing Civil Justice Association of California President Kim Stone   Photo courtesy of the Civil Justice Association of Californi

Only days before the end of Kim Stone's time as the third Civil Justice Association of California president, the American Tort Reform Associatioranked the state No. 2 on its latest Judicial Hellholes list.

It was same-old same-old for the long-time litigation-reform advocate.

"California is home to a number of frivolous lawsuits," Stone said in a Northern California Record email interview. "Unfortunately, many of our laws are set up to allow and even encourage unnecessary litigation."

Stone's comments to the Northern California Record came as part of her last day as CJAC president. The organization's new president, John Doherty, previously vice president of Politics and Policy, starts this week. In January, Stone plans to launch her own lobbying firm in Sacramento, Stone Advocacy.

Stone also reflected on other litigation challenges the state faces and offered some advice as the final hours of her presidency drew nigh.

"We are home to lawsuits such as there's too much ice in my Starbucks iced coffee, or my granola bar wasn't really all natural," she said. "While these lawsuits can be funny, the consequences for businesses, consumers and the state are serious."

Even the best-intended legislation in California seems to become fraught with unintended consequences, including how the state has implemented the federal Americans with Disabilities Act.

"We have set up our laws to encourage ADA-access lawsuits, where the lawyers try to extort money from small-business owners without even requiring that they fix the access problems," Stone said.

Similar unforeseen consequences came out of Proposition 65, adopted by voter referendum in 1986, Stone said. Also called the "Safe Drinking Water and Toxic Enforcement Act," Proposition 65 requires California businesses to warn consumers if their products contain substances that cause cancer or reproductive harm. California's Office of Environmental Health Hazard Assessment is responsible for implementing Proposition 65 and maintains a list of more than 900 chemicals identified as carcinogens and reproductive toxins.

Proposition 65 hasn't worked out as intended, Stone said. Instead, Proposition 65 has bred lawsuits against businesses who fail to place warning signs, resulting in so many warnings that consumers ignore them.

"I drive my minivan -- rated number No. 1 in safety by Consumer Reports -- to work, and it has a Prop 65 warning sticker on it advising me that the car contains chemicals known by the state of California to cause cancer,” Stone said. "The parking lot where I park contains chemicals known by the state of California to cause cancer. The Starbucks across the street from my office contains chemicals known to cause cancer or reproductive harm. That's three warning signs before I've even started my day! And none of them give me any useful information. So they get ignored."

And it isn't just the ADA and Proposition 65, Stone said.

"California's housing crisis and extreme housing shortage is the fault of lawyers who use CEQA -- the California Environmental Quality Act -- to halt needed development to build additional homes, thereby increasing the supply to keep up with demand," she said.

Stone warned that more litigation is coming -- this time asbestos. A recent California Supreme Court Case regarding take-home asbestos found that employers and premises owners owe a duty to the household members of asbestos workers. That, she said, sets up a new generation of plaintiffs with attorneys ready to bring new asbestos-related lawsuits.

"Regarding asbestos lawsuits, we need to encourage transparency and fairness so that deserving victims will be able to get their fair share," Stone said.

Stone said the state also needs to be wary of another recent California Supreme Court case that ruled out-of-state plaintiffs can to sue out-of-state defendants in pharmaceutical cases.

"In these cases, almost 90 percent of the plaintiffs come from out of state," she said. "So our taxpayer dollars are paying to adjudicate cases that more properly belong elsewhere."

In addition to defining California litigation issues, Stone also offered solutions.

"First, we need to stop passing new laws that allow new and creative ways for lawyers to bring lawsuits that are more about money than about justice," she said. "Two, we need to continue to allow people to agree to resolve their disputes outside of court if they choose to do so. Arbitration is an efficient, cost-effective means of resolving disputes.

"Three, we need to fix ADA-access laws to require the lawyer to tell the business what the problem is before they sue so the business has a chance to fix it. This would lead to fewer lawsuits and improved access for the disabled. Fourth, we need to reform CEQA and a number of other specific laws that are more about attorney's fees than justice."

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