Q&A: If you could change one California law, which would it be and why?
California Lawyer
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Q&A: If you could change one California law, which would it be and why?

May 2013

I have to go with Prop 8. How can we impose these grand principals and restrict personal rights on a simple 50 plus 1 percent of the vote? For the fundamental principles of human rights to be toyed with in such a transitory way seems bizarre to me. Yes, our laws do morph and change over time, but it takes two-thirds of the vote to change the taxes, so it is curious if not outright strange that we can modify basic human rights and dignity and conduct with less than that. More specifically to this issue, collective mores shift over time, and there is a marked shift in our understanding of intimate relations.

We now have more mixed families, second marriages, and interracial families than ever before, and I think we finally understand that the family chosen deserves as much protection as the family of biology. There are some segments of our society that value historic understandings. But those groups of individuals are dying out. I'll predict that in 20, if not ten years, this will be viewed as a tremendous legal and moral blunder. Anything less than identical rights for same-sex couples is, at bottom, a "separate but equal" argument. The "separate but equal"argument was rejected by the U.S. Supreme Court 60 years ago in Brown v. Board of Education.

Ruben Sundeen is a partner at Sundeen, Salinas & Pyle in Oakland, where he has a general civil practice with an emphasis in trusts and estates.

This was a tough question for me because I struggled with choosing something in my practice area as opposed to a social justice issue, like Prop. 8. But I choose the Civil Discovery Act to change because, as a litigation practitioner, it is what I deal with on a daily basis. I would have California adopt the Federal Rules of Civil Procedure, so that we would have automatic and mandatory disclosures at the time a case is filed, including an automatic duty to supplemental documents, and disclose experts. These things alone accelerate the exchange of basic case information and eliminate paperwork and associated costs. In addition, the FRCP requires discovery planning by the parties and places limitations on certain discovery methods, such as the number of depositions taken. In my opinion, the FRCP streamlines discovery in cases and is generally more cost effective for the client. The adoption of the FRCP would be efficient for those with a federal and state practice, and also, most law schools teach the federal rules so students coming into the practice would likely be more familiar with the procedures.

Erin Guy Castillo is a litigator at William Parish in Stockton, where she focuses exclusively on civil trials and appeals in a variety of matters, including business disputes, real estate, probate and trust litigation, and property damage.

I would eliminate the three strikes law. Since the '90s, it's become evident that having three strikes has not made our community safer, which, after all, was one of the premises for the law. This punitive measure was supposed to be a huge deterrent for committing crimes. But statistically, it has not made us safer, and on top of that, it's made our criminal justice system more and more punitive, and less focused on restorative justice, rehabilitation, and reintegration of offenders. Finally, the fiscal impact has spoken for itself. Financially, there's a huge consequence to the approach of locking everyone up and throwing away the key. I think public opinion finally started to sway on the financial aspect, and people are realizing that we can't continue locking so many people up in perpetuity. I'm a proponent of being smart in the fight on crime. There are offenders who commit crimes who should have life in prison. But to make it our blanket policy to keep doing this has very bad consequences for our people, our state and for public safety.

David A. Abella is an associate at Hanson Bridgett in San Francisco, where he focuses on litigation and counseling related to labor and employment law. He is also the treasurer of Bar Association of San Francisco's Barristers' Club.

I want it to be the whole state to ban plastic bags because I'm very passionate about the ocean. I grew up in Coronado on the Beach, swimming, sailing, wind surfing, eating seafood-so for me, it's really important to work on sustainability. I talked to Nathan Weaver at Environment California just to make sure I was right on the facts on why we need to ban these plastic bags. He pointed to the following three things: 1) Plastic bags are one of the most common types of litter. 2) When autopsied, a third of leatherback sea turtles have plastic bags in them. 3) Tens of cities and counties in California have already banned the single use plastic bag. I think it's time for that to happen statewide. AB 158, which is pending in the legislature, isn't quite that but it's close: It would prohibit a store with more than $2 million in annual sales or retailers with more than 10,000 square feet of floor space that also have a pharmacy from providing a single-use plastic bag to a customer.

Lori Mendez is principal of Mendez Law in San Diego, where she represents victims of catastrophic accidents. She is also chair of the San Diego County Bar Association's Community Service Program.

Because I do wage and hour work, I'd have to go with the Private Attorney General Act of 2004. The law takes every provision of the California Labor Code and creates a "civil penalty" for violating them, and then it deputizes employees to sue to recover those civil penalties (on behalf of themselves and other "aggrieved employees" with 75 percent of the penalties collected allegedly going to the state). The civil penalties are typically $100 per person per pay period ($2,600 per person per year) and you can get multiple penalties if multiple Labor Code provisions impact the same (allegedly) unlawful policy. Before it passed, only a fraction of the Labor Code provisions had a civil penalty provision and they could only be enforced by the state in an enforcement action. The law has mostly been used to extort settlements that are characterized as settlement of other Labor Code claims (you can bring PAGA and non-PAGA claims together) so the plaintiff can keep all the money and not gives the 75 percent to the state. To me, it doesn't serve any good purpose. It's basically a vehicle to harass businesses. No state has more employee protections than California, so it really is unnecessary.


Tom Kaufman is a partner in the Labor & Employment Practice Group in Sheppard Mullin's Century City office, where he practices employment litigation defense, with an emphasis on California Labor Code and federal wage/hour class actions.

If you or a California lawyer you know would like to participate in our Q&A series, contact karmah_elmusa@dailyjournal.com.

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