Summer 2019 Defense Comment 21 By Don Willenburg Gordon Rees Scully Mansukhani, LLP he ADC’s amicus briefs committee exists to bolster and provide institutional support for the defense position at courts of appeal and the California Supreme Court. The committee also provides excellent opportunities for members (this means you or the smart colleagues at your office) to write amicus briefs, letters supporting Supreme Court review, and letters supporting publication or depublication on cases involving important defense issues. Here is some of the committee’s activity since the last issue of Defense Comment: SUPREME COURT REVIEW Duffey v. Tender Heart Home Care Agency, LLC. We took the lead and authored a letter supporting the defense’s petition for California Supreme Court review. The case involves Dynamex, independent contractor law, and the safe harbor statute for in-home caregiver referral companies. It thus involved the intersection between the “gig economy” and California’s graying population. The Supreme Court denied review April 26. Hart v. Keenan Properties. The Committee undertook to prepare an amicus brief on the merits in this case and will file when the parties’ briefing is complete. Plaintiff’s only product identification evidence was testimony about an invoice. From the Court of Appeal opinion: “The jury found Keenan supplied pipes that exposed Mr. Hart to asbestos. This finding was based on a foreman’s testimony regarding invoices purporting to show Keenan supplied asbestos-cement pipes to a worksite in McKinleyville, California in the 1970s. We conclude this testimony was based on inadmissible hearsay ... The wording on these invoices or delivery tickets were out- of-court statements offered to prove the truth of the matter asserted: namely, that Keenan supplied the pipes.” Affirming this resultwillbenefitdefendantsinmanycases. CALIFORNIA COURT OF APPEAL Cobb v. County of Los Angeles. We joined with the Association of Southern California Defense Counsel and sought to file an amicus brief on the merits. The case involved multiple examples of plaintiff counsel’s use of “reptile” arguments all over, in (as often) a case where defendant admitted liability. Among other things, plaintiff’s counsel argued that because defendant contested liability until near the trial date, that showed bad faith which should be reflected in the award. Counsel also told the jury to “send a message” in a case that did not involve punitive damages. Unfortunately, the the court denied our request for leave to file the amicus brief on March 18. CALIFORNIA LEGISLATURE The Committee wrote to the Judiciary Committee of California’s state Senate to oppose SB 645, which would limit asbestos plaintiff depositions to seven hours. The bill passed out of committee nevertheless. We anticipate further written opposition, and perhaps even testimony, when the bill reaches the Assembly. JUDICIAL COUNCIL The Committee wrote in opposition to a proposed change to CACI 3275, regarding the going and coming rule. The proposed change is based on Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, but misstated that pro-defense holding and falsely contrasted it with other decisions taken out of context. (The Construction Law committee wrote regarding a different proposed CACI change, see its report elsewhere in this issue.) WHAT CAN, AND DOES, THE ADC’S AMICUS BRIEFS COMMITTEE DO FOR YOU? The ADC’s amicus committee can help support you and your clients in a case of general defense interest in all the following ways: 1. Requests for publication or depublication of Court of Appeal decisions. 2. Amicus brief on the merits at the Court of Appeal. 3. An amicus letter supporting a petition for California Supreme Court review. 4. Amicus brief on the merits at the Supreme Court. 5. Share oral argument time, with court approval. 6. Help moot court advocates in advance of oral argument. In many cases, the ADC works jointly with our Southern California colleagues, the AssociationofSouthernCaliforniaDefense Counsel. Getting the chance to bat around these issues with lawyers from across the state is another great benefit of being on or working with the amicus committee. Continued on page 33