©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 127 liability at every opportunity, held in a 2008 decision that Good Samaritan protection was limited to those who provided “emergency medical care.”507 In reading “medical” into the statute, the Supreme Court reversed a summary judgment in favor of a defendant who had removed her friend from a wrecked automobile immediately following an accident, inadvertently aggravating the friend’s spinal injuries in the process.508 The dissenting opinion in this 4-3 decision pointed out that the majority’s rewriting of the Good Samaritan statute—immunizing only medical assistance—would legally jeopardize all rescue and transportation efforts, so that a person would be at legal risk while pulling a victim from a burning building and would be legally protected only while administering CPR to the victim on the sidewalk.509 The dissent doubted that the Legislature intended “results so illogical, and so at odds with the clear statutory language.”510 The dissent was right: the Legislature responded by amending the statute to include both “medical” and “non-medical” emergency care.511 5.16.2 Encouragement of multiple claims California judges practically encourage plaintiffs’ attorneys to assert all claims possible. The California Supreme Court has stated, “A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client.”512 Plaintiff’s attorneys can thus feel obliged to bring many claims, lest their clients second-guess their judgment by citing the high court’s wisdom. And in one case, in which the plaintiffs’ attorneys had won a class action judgment against an employer in the amount of $90 million, the Court of Appeal permitted disgruntled class members to sue these highly successful plaintiffs’ attorneys for malpractice, on the ground that they had failed to bring yet an additional claim for still more money.513 5.16.3 No guarantee that plaintiffs need ever pay costs In America generally, frivolous litigation faces some deterrent because a plaintiff who loses a lawsuit must pay not only the plaintiff’s own litigation costs but also the defendant’s litigation costs (as well as the defendant’s attorney fees, in rare circumstances). In California it’s different. California creates no guarantees that the plaintiff who files a bad lawsuit will ever have to pay anything. As to the prevailing defendant’s costs, California courts have held that in certain circumstances the plaintiff is liable for costs only if the plaintiff has the ability to pay.514 And in 2018 the Court of Appeal extended this pro-plaintiff doctrine still further, holding that a defendant can recover expert witness fees under the FEHA only upon showing that the FEHA claim was objectively baseless.515 In so ruling the Court of Appeal held that the FEHA’s pro-plaintiff protections trumped the general rule that would enable a trial court to award defendants expert witness fees when they had offered to settle for an amount less than the verdict.516 And California permits a plaintiff to sue while secure in the knowledge that even the losing plaintiff’s own costs will be paid by someone else. Various states historically have recognized causes of action (e.g., champerty, maintenance) that can put a party at risk for financing litigation. State bar rules in other states have limited the ability of lawyers to engage in that financing. In California it’s different. California does not discourage financing litigation and its state bar rules do not restrict a lawyer from agreeing to advance expenses of a client and even waiving the right to repayment if the client fails to obtain any recovery. A Formal Opinion by the Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association, citing the California Rules of Professional Conduct, ruled that it is permissible for a law firm to cover a client’s litigation costs and to forgive repayment if the client loses.517
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