Products Liability and Injury Lawyer Blog

In re Tobacco II Cases,--- Cal.Rptr.3d ----, 2009 WL 1362556, 09 Cal. Daily Op. Serv. 5993, Cal., May 18, 2009 (NO. S147345)

In a major victory for California consumers victimized by fraudulent advertising and business practices, the California Supreme Court ruled on May 18, 2009 that Proposition 64 does not impose new procedural and substantive proof requirements on consumer class actions. The long-awaited decision, In Re Tobacco Cases II, reversed a holding by a lower court which interpreted Prop. 64 as requiring that all absent class members affirmatively demonstrate injury caused by an unfair practice in order to proceed as a class action. This would have severely hindered lawsuits under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL), which are designed to protect against unfair, unlawful and fraudulent business practices. Robinson, Calcagnie & Robinson senior partner Mark P. Robinson Jr., who argued the case before the Supreme Court on behalf of the Plaintiffs in the case, called the decision “a huge victory for the consumers of California." "This gives the consumers rights to protect themselves from fraudulent advertising,” said Robinson, former president of the Consumer Attorneys of California, who was named California Trial Lawyer of the Year by the American Board of Trial Advocates in 2008.

The suit was brought by smokers alleging that the tobacco industry defendants violated the UCL and FAL by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease. However, the ruling will potentially impact all consumer class actions in California involving unfair competition, fraudulent and unlawful business practices, and false advertising. Justice Carlos Moreno, writing for the majority, found that interpreting the statutes amended under Proposition 64 to require all unnamed members of a class action to individually establish standing would "effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights." The decision was immediately hailed by attorneys representing injured consumers."We want to congratulate the fine work done by attorney Mark Robinson, a renowned fellow trial lawyer, for his excellent work in arguing the case before the California Supreme Court" noted Audet & Partners, LLP founder William M. Audet. "Without a doubt, Mark Robinson's advocacy carried the day."

Tverberg v. Fillner Construction, Inc. (2008) 168 Cal. App. 4th 1278, 2008 WL 5102860

A man who was injured when he fell into a hole while installing a canopy at a construction site filed an action against the general contractor alleging causes of action and premises liability. The defendant moved for summary judgment based upon Privette v. Superior Court (1993) 5 Cal.4th 689, contending that it owed no duty of care to the plaintiff. In opposition to the motion, the plaintiff argued that he was not an employee of the subcontractor which had hired him, but rather, an independent contractor, and therefore Privette did not apply.

Even though both sides agreed that the plaintiff had been hired as an independent contractor, the trial court granted summary judgment. However, the court of appeal reversed, disagreeing with a contrary decision in Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1093-1096:

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