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In a last-minute attempt to win passage of a controversial bill, trial lawyers are set to remove disgorgement from their proposal to modify the state’s unfair competition law. Consumer Attorneys of California President Bruce Brusavich said Assembly Speaker Herb Wesson Jr., D-Culver City, asked the group to take out the provision because of continued resistance to the bill from Republicans and moderate Democrats. Disgorgement is one of the tools plaintiffs attorneys can use to recover profits from defendants, although the state Supreme Court has limited its use. It’s one of several points in Sen. Martha Escutia’s SB 122, which itself is part of a two-bill package designed to change the unfair competition law, Business and Professions Code � 17200. Brusavich said Thursday he’s disappointed so many legislators have a problem with disgorgement, which trial lawyers feel is needed to ensure defendants cannot keep money earned through illegal means. Tort reformers see disgorgement as unconnected to the recent debate on 17200 and say the trial lawyers were just using the legislation to “feather their nests.” “There hasn’t been a rational debate on this issue,” said Brusavich of Torrance-based Agnew & Brusavich. “The tort reformers have everyone so riled up.” SB 122 is scheduled to be amended on the Assembly floor today and then discussed in a special meeting of the Assembly Judiciary Committee on Monday. Although Brusavich hopes removing disgorgement will win enough support to get the bill out of the Assembly, opponents said if that’s the only change they still won’t sign on. “It doesn’t fix the law,” said Christopher Walker, a Nossaman Guthner Knox & Elliott lobbyist working on behalf of the Auto Repair Coalition. Walker said that without more substantial changes to 17200, auto shops and other small businesses will continue to be in danger of getting sued by unscrupulous attorneys. Suits filed against thousands of businesses by a handful of plaintiffs lawyers kicked off this year’s debate over how to change the unfair competition statute. But even if SB 122 goes down in flames, the trial lawyers will have plenty of other reasons to celebrate. Not only are they pleased with a raft of legislation they’ve already sent to Gov. Gray Davis’ desk, they’re also set to introduce two more bills they hope will make this year another example of their clout in the Capitol. One new bill responds to a call the state Supreme Court made in Olszewski v. Scripps Health, S098409, to change medical liens in cases involving Medi-Cal payments. The other revises civil procedure rules in auto personal injury cases. Those proposals are also on Judiciary’s Monday schedule. Although neither is likely to be as contentious as 17200, the trial lawyers could still draw fire because language for both bills is still being written at the last minute — leaving little time for debate. In legislative lingo, the process is known as “gutting and amending.” Last year, the trial lawyers caught heat for their connections to two gut-and-amends: One bill gave them a major time advantage in summary judgments and changed the statute of limitations in civil cases, and another dramatically altered construction defects litigation. In defense of such criticism this year, Brusavich pointed out that the civil procedure language has been in print for months as AB 1297. But now that bill is bogged down, so the trial lawyers are pushing through what they can, he said. Although Mercury Insurance Co. worked with CAOC on AB 1297, the Personal Insurance Federation, an insurance industry trade group, doesn’t like the civil procedure language and said it will oppose the new bill. The bill would allow plaintiffs lawyers to serve insurance companies instead of their customers and would require insurers to release policy limits information prior to litigation. “They think it will help reduce costs. Frankly, it’s a hoax,” said Michael Gunning, senior legislative advocate for the insurance group. As for the medical liens bill, Brusavich said that Olszewski was just written in June, which didn’t give his group much time to come up with a response. In the opinion, state Supreme Court Justice Janice Rogers Brown called on the Legislature to remedy a conflict between state and federal law that was hurting hospitals and patients whose bills were paid by Medi-Cal. Consumer attorneys negotiated with the California Healthcare Association to craft a bill, which will allow Medi-Cal plaintiffs to go after defendants for more money and let hospitals attach liens for their fair share. Even with the trouble over the unfair competition law and possible criticism on the last-minute bills, Brusavich said overall he was very pleased with CAOC’s success in the Legislature this year. Lawmakers passed bills on secret settlements in elder abuse cases and are working on toxic torts, as well as a measure designed to prevent abuse of California’s anti-SLAPP law and a bill that makes employers responsible for sexual harassment by non-employees. “It’s ended up being a very good year for consumers,” Brusavich said.

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