How Many Jurors Does It Take To. . .
CaliforniaIt may come as a surprise that the traditional 12-person jury is not constitutionally required. Many states and the federal government allow six or eight-person juries. California has considered doing the same.

Throughout the 1970s, the United States Supreme Court issued a series of decisions regarding the constitutionality of the 12-person jury. These decisions held that a jury comprised of as few as 6 members, and as many as 12, does not violate a defendant's constitutional right to a fair and impartial jury. The Supreme Court noted that a jury must be large enough to promote jury deliberation free from intimidation and provide a fair possibility for obtaining a representative cross-section of the community. Following these decisions, more than half the states adopted laws requiring less than 12 persons on a jury; federal statutes provide for a 6-person unanimous verdict in most civil cases.

jurycheckinIn light of California's current budget crisis, California has considered allowing fewer than 12 persons to serve on a jury in a civil case. Currently, under the Code of Civil Procedure, a civil jury consists of 12 persons but parties may agree to any number less than 12. Under the California Expedited Jury Act, a voluntary procedure, the parties agree to impanel a jury of 8 persons, with each side limited to three hours to present their case. Verdicts with a consensus of 6 out of 8 jurors are binding. Under the Act, parties agree before trial to a confidential high/low damages payment, allowing a plaintiff to receive a minimum amount and a defendant to limit potential exposure. While the Act may be best suited for small cases with correspondingly small damages, it may also be useful in cases where damages are not in dispute, but rather, liability or comparative fault. Both the Expedited Jury Act and the Code of Civil Procedure may be an indication that California could, in the future, move toward the 6 to 8-person jury as the norm in state court.

There are advantages and disadvantages presented by a transition from a 12-person jury to a 6 or 8-person jury. The key advantage, given strained court resources, is that reducing jury size may also reduce costs, beyond just reducing the number of jurors who receive compensation for their service. Reducing the number of jurors also reduces the time spent on jury selection. Additionally, as smaller juries tend to come to agreement more quickly, deliberation time will be reduced, and cases will proceed more efficiently through the court system. The reduction in jury size and deliberation time could mean more cases will be sent out to trial. Because smaller juries are more likely to reach a consensus, this may reduce the number of hung juries.

There are also disadvantages to a 6 or 8-person jury. Studies show that smaller juries are more unpredictable than a 10 or 12-person jury, and damage awards can be erratic. Therefore, the parties' ability to assess the likely outcome of a case can be affected, impacting pre-trial negotiation and settlement. Settlement is more likely when one party recognizes the likelihood of an unfavorable outcome at trial, but with unpredictable jury awards, a party's ability to assess the outcome of a case lessens. Mock jury research demonstrates that a 6-person jury performs worse at recalling evidence. The more individuals present during deliberations to recall evidence presented during trial, the greater the odds that more evidence, and more detail, will be remembered. In cases with complex issues of causation, when events occurred years ago, and trials can span one to four weeks, a smaller jury size may adversely affect the jury's ability to recall important facts. Also, a 6 to 8-person jury is less likely to present a wide variation in juror bias. Thus, in counties with more conservative jury pools, the liberal juror is less likely to make an appearance, and vice versa.

Overall, a reduction in the size of civil juries in California presents fiscal advantages for the courts and for parties to obtain timely trial dates. But a reduction in jury size may also reduce the likelihood of settlement before trial and may affect the jury's ability to recall and apply the evidence presented during trial, which could negatively impact defendants with complex cases. Ultimately, should California follow in the footsteps of other states and the federal government, there will be both positive and negative aspects, and perhaps some surprises, for litigation.

LES--headshot-web-name-Heather J. ZachariaFeel free to contact the authors with any questions:  

Partner - San Francisco
Laurie E. Sherwood at
Associate - San Francisco
Heather J. Zacharia at
Or any WFBM attorney with whom you are working.


Employers Should Note The Following New California Laws That Went Into Effect This Year And Which Provide Even More Protection To California Employees
CaliforniaWritten Contracts Required for Commission-Based Pay

Employers who pay employees in whole or in part based on a commission are required to have written contracts. The contract must be signed by the employer and employee, and a copy must be provided to the employee, who must sign an acknowledgment of receipt. Even if employers have an incentive program that does not meet the definition of "commissions" under the law (payment based on a percentage of the sale), it is still good practice to put the policy in writing. Commission plans vary in complexity, but it is important to make sure the plan is crystal clear. At a minimum, the written contract should detail: the time period covered; how commissions are calculated; when commissions are earned, including any conditions that must be met; when commissions will be paid; and what happens to commissions if the sale is not completed before the employment ends.

Protections for Breastfeeding

California law prohibits discrimination based on "sex," which is defined to include gender, pregnancy, childbirth and related medical conditions. The new law extends these protections to include "breastfeeding or medical conditions relating to breastfeeding." Employers may not take any adverse action against employees based on breastfeeding, including relating to pay or disciplinary actions. Employers should be careful not to create an arguably hostile work environment (such as teasing, even if good-natured) or harass breastfeeding employees. Employers do not have to pay for lactation breaks in excess of regular break time already required under the law. Employers must make reasonable efforts to provide a private room (not a restroom stall) to employees for the purpose of breastfeeding or using a breast pump.

Accommodating Religious Dress and Grooming Practice

California's prohibition against religious discrimination in the workplace includes prohibiting employers from discriminating against employees and job applicants based on religious dress or grooming practices. "Religious dress" broadly refers to wearing or carrying religious clothing, head or face coverings, and any other item that is part of the observance of an individual's religion. "Religious grooming practice" includes all forms of head, facial and body hair that are part of the observance of an individual's religion. Importantly, employers must not segregate employees who observe religious dress or grooming practices from other employees or the public, such as hiding an employee in a back office.

The employer is required to reasonably accommodate religious dress unless the employer can show that to do so will cause undue hardship. The employer must be engaged in the interactive process with the employee to find a reasonable accommodation, a standard that must be evaluated on a case-by-case basis.

Right to Wage Statements and Personnel Files

Employers must provide California employees with wage statements that include the gross or net wages paid during the pay period, deductions made from the gross wages, the name and address of the employer and the employee's name and last four digits of his/her social security number or identification number. Failure to comply with these requirements could result in an award of damages, a penalty of up to ,000 and attorneys' fees and costs against the employer.

Employers must keep complete wage statements for 3 years, although the new law clarifies that electronic records are acceptable as long as they include all required information. Current and former employees may inspect and copy wage statements within 21 days of a request or the employer may be charged a 0 penalty.

Current and former employees have the right to a copy of their personnel files within 30 days of a written request, and an employer is subject to a 0 penalty if the employer fails to comply. In addition, the employee may sue for injunctive relief and to recover costs and attorneys' fees.

Overtime Pay for Salaried Non-Exempt Employees

California law now prohibits employers from paying non-exempt employees a fixed salary that purportedly includes both regular pay and a certain amount to cover anticipated overtime pay, whether or not the employee actually works any overtime hours. This law overturns a prior California Appellate Court decision that allowed such a practice. Under the new law, all non-exempt employees are entitled to additional pay for overtime hours worked regardless of whether they are paid by the hour or are salaried.

Restricted Access to Social Media

Employers may not require employees and job applicants to provide login and password information necessary to access their non-public social media activity. In addition, employers may not require employees and applicants to access their private social media activity in the employer's presence or to otherwise disclose to the employer such activity.

These new laws demonstrate that California continues to enact restrictions on employers while providing additional protections to employees.

Mary Watson FisherDavid K. HaberFeel free to contact the authors with any questions:  

Managing Partner - Orange
Mary Watson Fisher at

Associate - Orange
David K. Haber at
Or any WFBM attorney with whom you are working.


How Long Is The Tail? California Supreme Court Limits Responsibility Of Carriers To Defend Dissolved Foreign Corporations
CaliforniaHow long should the insurance carriers of a dissolved foreign corporation (one formed in another state) expect to have to defend a lawsuit against the defunct entity in California? Dissolved corporations are frequently sued, even though they have no assets other than old insurance policies, in order to trigger coverage under those policies.

In California, there is almost no limit to the length of time that carriers can be required to defend dissolved California corporations. Until recently, the rule was the same in the state for dissolved foreign corporations. That rule was overturned, however, by the California Supreme Court in the case of Greb v. Diamond International Corp.

Greb involved a Delaware corporation that had been dissolved for many years. Plaintiffs sought recovery from unexhausted liability insurance that had covered the corporation during the time when it had conducted business in California.

In Greb, the Supreme Court considered the question of whether Corporations Code section 2010, which governs the winding down and survival of dissolved corporations, applies to foreign corporations.

Diamond International Corporation had been incorporated pursuant to the laws of Delaware and was dissolved in Delaware more than three years before the lawsuit. The corporation argued, pursuant to the laws of Delaware, that a three year limitations period applied and it therefore lacked the capacity to be sued. Thus, plaintiffs' lawsuit was time barred.

Corporations Code section 2010 sets no time limit for suing a dissolved corporation for injuries arising from its pre-dissolution conduct; the only time limit being the applicable statute of limitations specific to each cause of action. Thus, liability depends on when the causes of action accrue and can be extended by tolling provisions (such as minority or disability of a plaintiff) or the fact that injury had not occurred before the corporation dissolved. Plaintiffs, in an attempt to recover from the liability insurance, argued that California's law takes precedence over Delaware.

The California Supreme Court, after reviewing earlier decisions in the State, rejected the plaintiffs' arguments and held that the question is to be determined under the law of the state in which the foreign corporation was incorporated. Thus, Delaware law prevailed.

The Court's opinion turns on an interpretation of statutory law. Therefore, the California legislature could change the law to make California's almost limitless claims period applicable even to dissolved foreign corporations.

Unless and until that happens, however, the law of the state of incorporation (which is likely to be more restrictive than California law) will apply.

 Randy J. LeeGreg A. Alvarez  
Feel free to contact the authors with any questions:

Partner - San Francisco 
Randall J. Lee at
Associate - Orange
Gregory A. Alvarez at
Or any WFBM attorney with whom you are working.


Thinking Outside The Medical And Employment Record Box
CaliforniaIt is no secret that a personal injury plaintiff's medical and employment records can reveal critical information about his or her claims. Most of the time, these records contain information that plaintiffs actually want defendants to see. But what about other information plaintiffs may prefer to keep hidden? Are there other types of records defendants should consider obtaining that may shed light on a plaintiff's case? In short, the answer is yes.

SocialSecurityAdminLogoDefendants should explore whether records exist pertaining to a plaintiff from organizations such as the Employment Development Department, the Department of Social Services, or the Social Security Administration. Records from these types of entities may contain information not only relating to a plaintiff's alleged injuries, but may reference pre-existing conditions, prior claims, and admissions by plaintiffs or other witnesses supporting a statute of limitations defense, all of which may be relevant to the lawsuit at issue and can be used to reduce or even eliminate a defendant's liability.

One avenue by which defendants may obtain these types of records is directly from the record holders via records subpoenas. An obstacle to subpoenaing records directly from the record holders is that the record holders often require an authorization signed by plaintiff to release the records. Indeed, the record holders typically respond to such subpoenas by refusing to produce the records without an authorization signed by plaintiff, citing to state and federal privacy laws. Plaintiffs, in turn, regularly refuse to sign these authorizations based on their right to privacy.

Nonetheless, defendants maintain that records pertaining to these claims are discoverable. In order to resolve these disputes, assuming informal meet and confer efforts are unsuccessful, defendants may seek judicial intervention in the form of a motion to compel the record holders to comply with defendants' subpoenas and/or a motion to compel plaintiff to sign the applicable authorizations, depending on whether defendants are attempting to obtain records from a state or federal agency. For example, only a federal court can issue a binding order to a federal agency, such as the Social Security Administration. In doing so, defendants rely on a body of California law standing for the proposition that by filing a personal injury lawsuit, a plaintiff places the issue of his or current alleged injuries and past medical history squarely at issue, and such records often contain information relevant to such injuries. As a result, defendants argue that an objection on the basis of a plaintiff's right to privacy is overcome by a defendant's right to obtain relevant information in connection with plaintiff's claims.

The rulings on any such motions brought about by the record holders' objections or plaintiff's objections vary both by judge and jurisdiction. Regardless, defendants should continue to think beyond current medical or employment records and look to these other types of organizations when investigating a plaintiff's claims as such information can be valuable to the defense.

Dee Cohen KatzSadaf A. NajatFeel free to contact the authors with any questions:  

Partner - Orange
Dee Cohen Katz at View Dee Cohen Katz's profile on LinkedIn
Associate - Orange
Sadaf A. Nejat at
Or any WFBM attorney with whom you are working.


Diesel Exhaust Litigation: Will The World Health Organization’s Designation Of Diesel Exhaust As Carcinogenic Swell The Tide Of Lawsuits?
CaliforniaThere are a number of lawsuits, pending in various jurisdictions around the United States, based on the alleged toxicity of diesel exhaust. The largest numbers of these cases involve plaintiffs in, or formerly in, the mining and railroad industries. This is because the highest levels of diesel exhaust exposure are typically found in occupational settings associated with mining, railroads, ships, etc. Cases are not, however, limited to occupational exposure. In one of the more highly publicized actions, the State of California brought a lawsuit against terminal operators under California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) alleging failure to warn residents and other persons living and/or working at or near the Ports of Los Angeles and Long Beach.

cruise-smokeThe thrust of these lawsuits is typically that diesel exhaust is a complex mixture of gas constituents and particulate matter allegedly related to a number of health problems. Diesel exhaust is, according to the claims, known to contain over 9,000 chemical compounds, many of which are purportedly carcinogenic. Lawsuits brought by a number of plaintiff law firms allege a variety of types of cancer, as well as pulmonary and immunologic problems, allegedly arising from prolonged exposure to diesel engine fumes.

world-health-organization-logoThe International Agency for Research on Cancer (IARC), an intergovernmental agency that is part of the United Nations World Health Organization, jumped into the fray in June of 2012 by declaring that diesel exhaust is carcinogenic in humans. In particular, IARC found that exposure is associated with an increased risk of lung cancer. Has this highly publicized determination resulted in a substantial increase in diesel exhaust litigation, or is it likely to do so in the future?

Experience so far seems to indicate that the IARC findings have not significantly increased the number of diesel exhaust claims. This is probably because various government agencies in the United States have designated diesel exhaust as carcinogenic for 20 years or more. In addition, the declaration itself does not change the burden of proof. It is still the plaintiff's burden to prove that his or her ailment was, in fact, caused by exposure to diesel exhaust. The general finding by IARC does not affect that burden.

It is reasonable to expect that there will be ongoing battles between attorneys on both sides to put before the jury (or prevent the jury from hearing) the IARC finding. In short, it is reasonable to expect that, as with so many other medical and scientific issues in the toxic tort field, the IARC findings represent one more battle in the ongoing war.

Christopher M. McDonaldRudy R. PerrinoFeel free to contact the authors with any questions:

Partner - Orange 
Christopher M. McDonald at
Partner - Los Angeles
Rudy R. Perrino at
Or any WFBM attorney with whom you are working.


Meet The Attorney: Rudy R. Perrino
meet_the_attorney_logo-new-lowRudy R. PerrinoRudy R. Perrino, a partner with a practice in environmental and toxic tort litigation, joined the firm in February, 2013. In addition to his years of experience litigating complex environmental and toxic tort claims, Rudy brings a wealth of knowledge and business acumen to the firm, having worked as an in-house lawyer at Dole Food Company for several years.

In his private life, Rudy likes to spend time with his wife, Lisa, and two children, Dominic (14) and Ava (10). Rudy loves to play golf, soccer, ride bikes and snow ski. He is also a self-proclaimed mean cook. Rudy obtained his undergraduate degree in biology/psychology and Spanish from the University of California, Riverside. After graduating, Rudy worked as a quality assurance manager in one of the southwest's preeminent environmental consulting firms, Hargis + Associates, in San Diego, where he grew up. While there, Rudy found his calling in the legal field while providing litigation support and, thereafter, attended law school at the University of San Diego.

He started his legal practice representing municipalities in environmental matters. Seeing opportunity in his undergrad education in the sciences, Rudy quickly expanded into the toxic tort field, representing petroleum companies, chemical companies, recyclers, waste haulers and disposal companies, concrete manufacturers and other industrial concerns in complex litigation relating to alleged exposures to multiple toxins. This experience led Rudy to manage Dole's worldwide litigation for several years, which included more than billion in claims relating to the Company's use of a pesticide in the 1970s that was proven to cause sterility in men working in the manufacturing context. After proving that the vast majority of those claims were a fraudulent, Rudy decided to return to private practice, which led him to WFBM.

We are happy to have Rudy with us!


Recent Results
recent_results_logo-new-smallSummary Judgment Granted To WFBM Clients in Five Asbestos Cases

WFBM's San Francisco office was recently successful on three summary judgment motions for firm contractor clients. In the first, plaintiff claimed she was exposed to asbestos from her deceased husband's insulator work clothes which she laundered. Based on a recent court decision which found that no duty was owed to an employee's family member who was exposed to asbestos, the court granted summary judgment for the firm's laborer contractor client. In the second, plaintiff, a former stationary engineer, claimed that employees of the firm's general contractor client cleaned-up asbestos-containing materials in his presence. The court granted summary judgment on the ground that plaintiff could not prove that these materials were asbestos-containing. In the third, plaintiff claimed he was exposed to asbestos from the firm's painting contractor client's handling of fireproofing, joint compound and stucco materials. The court granted summary judgment finding that plaintiff was unable to identify the brand name or manufacturer of any of these materials.

WFBM's San Francisco office was also successful on a summary judgment motion for the firm's client, a heavy equipment manufacturer. Plaintiff claimed he was exposed to asbestos while others worked with gaskets and brakes. The court granted summary judgment on the grounds that there was no evidence that plaintiff was exposed to asbestos-containing products attributable to the firm's client.

WFBM'S Orange office further recently prevailed on motions for summary judgment for two additional firm clients, an asbestos cement pipe supplier and its associated entity. Plaintiff alleged that the firm's clients were liable for a predecessor's asbestos-containing products in spite of the significant factual evidence and prior court rulings to the contrary. The court granted summary judgment finding that plaintiff could not show that he was exposed to a product for which the WFBM clients were responsible.

Partners Jennifer Cormier, Ian Dillon and Florence McClain, and associates Pamela Bobowski, Derek Johnson, Hillary Huth, Dylan Rudolph, and Pamela Stevens were involved in achieving these results in San Francisco, as were senior trial counsel Helen Luetto and associate Sean McGah in Orange.

Summary Judgment Granted in Products Liability Case

Partner Karen Sullivan and associate Sadaf Nejat recently obtained summary judgment for the firm's client in a products liability action venued in Los Angeles County Superior Court. Plaintiff claimed that he suffered traumatic brain injury when he fell off a ladder after he was overcome by fumes emanating from the client's product, which he was using on the job. The entire theory of the case against the firm's client was failure to warn. WFBM argued that, (a) there was no reason to believe that other warnings on the container would have caused plaintiff to act differently, and (b) the client complied with the Federal Hazardous Substances Act, which prempted plaintiff's contentions regarding warnings. The court agreed and granted summary judgment to the firm's client.

Court Sustains Demurrers Without Leave to Amend for Travel Agency and Tour Operator

WFBM partner Mary Watson Fisher recently obtained an order from the Orange County Superior Court sustaining demurrers without leave to amend for two WFBM clients: a travel agent and a tour operator. WFBM's clients were sued by 50 plaintiffs who claimed unspecified personal injuries stemming from plaintiffs' dissatisfaction with a cruise on the Yangtze River in China. Plaintiffs claimed that the original cruise ship was oversold and that the tour operator, travel agency and cruise line (which WFBM did not represent in the case) engaged in a "bait and switch" scheme wherein the 50 plaintiffs were moved to an inferior cruise ship that was not of the "five star" quality plaintiffs claimed they were promised. After allowing plaintiffs three attempts to amend their complaint to state claims against WFBM's clients, the Orange County Superior Court ultimately agreed with WFBM's fourth demurrer and sustained it as to all causes of action without leave to amend. Plaintiffs have not indicated whether they will appeal the ruling.

Defense Verdict In Brain and Lung Injury Case

In January, 2013, after a five week jury trial in Fresno, California, senior trial counsel Helen Luetto and partner Karen Sullivan obtained a defense verdict for contractors sued in a personal injury case involving severe brain and lung injuries from exposure to carbon monoxide and diesel exhaust. Plaintiff claimed neurological damage, lung injury, tremors and speech problems from toxic exposure during excavation of an underground storage tank near the building where she worked. During trial, the defense argued that covering the air intake vent was not something that would reasonably have been expected of the contractors, the amount of carbon monoxide plaintiff was allegedly exposed was not enough to cause her alleged injuries, and that her injuries were either pre-existing or not caused by her alleged exposure. Though plaintiff's counsel demanded million in damages before and during trial, the jury found the defendants were not negligent and returned a verdict for the defense. The Fresno Superior Court denied plaintiff's request for a new trial in late March 2013.


Recent Developments
recent_developments_logo-new-smallORANGE, CA  The California Supreme Court recently broadened the application of the primary assumption of risk doctrine, which limits liability of operators of sporting and certain other recreational activities. While many appellate courts have previously extended the doctrine to non-sport recreational activities, this was the first time the California Supreme Court addressed the issue.

In Nalwa v. Cedar Fair, plaintiff brought an action against an amusement park after suffering a broken wrist as a passenger in a bumper car ride.
The trial court granted defendant's summary judgment motion finding plaintiff's claims were barred by the primary assumption of risk doctrine, under which operators and participants of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. Under the primary assumption of risk doctrine, the operator is liable only if the activity increases the risk inherent to the activity in which the participant engages.

The Court of Appeal reversed the trial court, holding that the public policy of promoting safety at amusement parks precludes application of the primary assumption of risk doctrine, and the doctrine is inapplicable to bumper car rides in particular because that activity is "too benign" to be considered a "sport." The Court of Appeal also held that defendant could have reduced the ride's risks by configuring it to minimize head-on collisions.

The Supreme Court reversed the Court of Appeal and held that the primary assumption of risk doctrine is not limited to activities classified as a sport, but applies to other recreational activities "involving an inherent risk of injury to voluntary participants" where the risk "cannot be eliminated without altering the fundamental nature of the activity."
The Supreme Court noted that the primary assumption of risk doctrine applies to bumper car collisions, regardless of whether or not one deems bumper cars a sport because the whole point of a bumper car is to bump with other cars. While this activity is not highly dangerous, such collisions do carry an inherent risk of minor injuries, and this risk cannot be eliminated without changing the basic character of the activity.

The California Supreme Court's holding in Nalwa v. Cedar Fair extends the primary assumption of risk doctrine not merely to activities that require physical exertion and elements of skill, but to recreational activities that have an inherent risk of minor injuries.

The Supreme Court also confirmed that the doctrine is available not just to co-participants, but to commercial operators who are engaged in the activity for profit. Ultimately, this may make it easier to obtain summary judgment of claims to which the primary assumption of risk doctrine is applicable.


2013 Seagull Golf Tournament Recap
Seagull_Tournament_logo-v2seagull-1-webFounded by WFBM partner Ron Bevins and many of his friends, the Seagull Golf Classic tournament celebrated its 26th year on May 13th at Old Ranch Country Club in Seal Beach. Under warm sunny skies, 140 clients, friends of the firm and WFBM partners and associates showed their support for Juvenile Diabetes Research Foundation in a spirited and fun day, both on the course and in their generous and spirited bidding at the silent auction and awards dinner following the event.

WFBM is proud to be associated with this event and important cause, which has raised hundreds of thousands of dollars through the years in search of a cure for juvenile diabetes.

We sincerely thank all of our clients and friends for their continued and generous support.



WFBM Selected By CLM To Teach Litigation 101 Course
WFBM Selected By CLM To Teach Litigation 101 Course

Laurie E. SherwoodWFBM is proud to have been selected to teach a Claims & Management Litigation Alliance-sponsored (CLM) course entitled "Litigation 101", which took place on June 26, 2013 at Gallagher Bassett in Oakbrook, Illinois. WFBM Partner Laurie E. Sherwood, a member of CLM, instructed the course, which provided an overview of the litigation process. In addition to generally examining the various phases and processes of a lawsuit, the course also explained the terminology and vocabulary one encounters in litigation.

This particular course is just the tip of the iceberg regarding the many diverse presentation topics offered by WFBM. Our attorneys regularly conduct training sessions for a variety of companies and are often able to obtain continuing education credit for attendees.

Please visit our Continuing Education Seminars page to view our expansive list of continuing education seminars and contact us for further details and assistance in determining which may be of benefit to you.