The CAOC Forum magazine is a member benefit of the Consumer Attorneys Of California.
Breaking Barriers to Justice
The Unique Role of Consumer Advocates • July/August 2026 Edition
Volume 56, Number 4 • June/July 2026
Contents
03 06
76 Advocates Club Listing Spotlighting contributors
Notes from Team CAOC
Special thank yous and what to expect from this edition
83 Business Friends Listing Our platinum, gold, silver, and bronze partners
Upcoming Events, Programs
A quick look at in-person or virtual opportunities 08 “Where We Are, Where We Must Go - Together” An inspirational message from CAOC President, Douglas Saeltzer 12 “SB 623: The New Rules for Rideshare Litigation” A breakdown from CAOC General Counsel, Saveena Takhar , on the recent legislation 14 “Breaking the Sixty-Year Barrier: SB 29 and the Fight to Preserve Survival Damages” Co-authored by Alina S Vulic, CAOC Policy Director, Jacqueline Serna “Feigned Ignorance Should Not Be Bliss: How to Handle ‘No Responsive Documents Exist’ in Discovery” Jasleen Singh weighs in on holding your ground in discovery, thinking creatively, and persisting to, through, and after trial 26 “Your Network is the Case” An opinion piece by Taylor Ernst on leaning on community 28 “The Empty Briefcase in Phase Two of Trial: Obtaining Financial Evidence to Support California Punitive Damages Awards” A substantive walkthrough from Steven R. Young 40 “Sí, Se Puede: The Enduring Fight for Environmental Justice for Farmworkers” Kelsey L. Campbell with a post-Justice Day piece inspired by keynote speaker, Dolores Huerta 47 “The Information War: Guerrilla Tactics for Fighting Corporate Disinformation Campaigns” 19 Ryan Stygar makes the case to get active on social media 53 “Reframing Credibility and Recovery in Trauma-Based Claims” An in-depth look with Whitney Betts 62 “A Plaintiff’s Strategy for Justice in Kaiser Arbitrations” Bruce Fagel, MD, JD, presents a new approach 66 “Hablamos Español” Is Not Enough: Why Language Marketing Without Cultural Humility Is Failing Clients” Co-authored by Maria Hall , Catalina Rodas 73 “We Will Fight to Hold Corporations Accountable” Updates from Washington from AAJ CEO, Linda Lipsen
84 DEI Report From past chair, Michael Bracamontes 85 Coffee Break Report Legal Staff Support Group updates from chair and co-vice chairs, Rose Gutierrez , Cesar R. Garcia , Assal Badrakhani 87 Women’s Caucus Report From chair, Ji-In Houck 90 From PR chair, Matt Sahak New Lawyers’ Division Report 92 President’s Club Listing CAOC’s top supporting firms/individuals 94 Quick look at where we stand and member benefits Membership Report
95 2026 Palm Springs Report A message from CAOIE President, Kenny Ramirez 98 Support the businesses supporting our mission Affiliate Member Listing
Advertising Index
4 - Robert W. Johnson & Associates 5 - Greene, Broillet, Wheeler LLP 10 - Bisnar Chase 11 - EvenUp Law 17 - Richard Harris Law Firm 21 - Signature Resolution 24 - Supio 25 - Arias Sanguinetti Wang & Team LLP
34 - Judicate West 38 - Lawyers for Justice, PC 43 - ADR 46 - Shernoff, Bidart, Echeverria LLP 51 - USA Express Legal & Investigative Services, Inc
52 - Makarem & Associates 57 - NFP, An Aon Company 64 - Baldwin Settlements 65 - Greenberg and Ruby 71 - Riley, Ersoff, Rodas, LLP
27 - Esquire Bank 31 - Anytime AI
FORUM (ISSN:0889-7751) is published digitally 6 times a year. Entire contents ©2026 Consumer Attorneys Of California. All rights reserved. Reproduction in whole or part without permission of CAOC is prohibited. Statements and opinions in editorials and articles are not necessarily those of CAOC. Publication of advertising does not imply endorsement of products or services. Advertisers and their agencies are solely responsible and assume full liability for all contents of their advertisements. All letters and materials sent to FORUM will be considered CAOC property. Any editorial or article copy accepted is subject to such revision as is deemed proper in the discretion of the editor. Acceptance of editorial or article copy includes the author’s rights to such copy. Publisher reserves the right to publish, in whole or part, all letters received. Cover photo by Julie Gossett. Email forum@caoc.org with questions or to inquire about article submissions, advertising space. Consumer Attorneys Of California • 770 L Street, Suite 1200 • Sacramento, CA 95814-3396
75 “New Frontier of Fundraising” A message from Roger Dreyer , PAC Board Chair
Notes from the Team
Hello, friend.
Typically, this is where you will find notes from the editor. Sharon Arkin , the longtime editor-in-chief for Forum Magazine , alongside Sharon Scott , managing editor, are now enjoying a well-deserved rest from their roles! Thank you, Sharon & Sharon - you have our endless gratitude. As you get ready to flip through this edition, Team CAOC asks: what does Forum Magazine mean to you? For us, it is to educate, to inspire, to stay on the forefront of trending issues and topics. Most important, Forum Magazine is about community . Through introducing new authors and thought-provoking pieces, we hope that you more easily connect to this organization and with each other. In this edition, we set the theme of “Breaking Barriers to Justice.” We feature a diverse group of authors and articles. Find something that sticks with you. As always, thank you for being part of our community and for playing a crucial role in seeking justice for all.
-Team CAOC
03 FORUM July/August 2026
Consumer Attorneys of California
COMING UP SOON @ CAOC
Aug 19, 2026 Mixer @ Perch Los Angeles, CA Sept 24, 2026
Class Action Seminar Newport Beach, CA Sept 26, 2026 Dodgers @ Giants San Francisco, CA Oct 22, 2026 Mixer @ Bungalow Santa Monica, CA Nov 12-15, 2026 65 Annual Convention, th San Francisco, CA Nov 14, 2026 Installation, Awards San Francisco, CA Nov 30 - Dec 2, 2026 Hawaii Seminar Maui, HI
Above: Doug Saeltzer, Nancy Drabble at the 2026 Napa Sonoma Seminar. Below: Gary Partamian, Alex Garza, Sheri Lalehzarian, Alexis Gamliel, Casey Hultin at the 2025 Perch event hosted by the New Lawyers Division.
Above: Carree Nahama, Natalie Holm, Monica La, Jenn French, Dominic Martini in Sacramento. Below: Denisse Gastélum at the 2025 Annual Convention.
Upcomings Events & Programs
Get Involved with a Committee! Our committee meetings are held online, and all CAOC members are invited to get involved. Check out the live Calendar of Events to see what’s next, and email the CAOC team member listed as point of contact to add a meeting to your calendar.
Aug 5, 2026 Accredited Webinar* “Drafting Motions Can Be Fun... I Promise!” Hosted by NLD, LSSG JOIN US ONLINE Aug 6, 2026 Accredited Webinar* “Overcoming the Myths of a ‘Mild’ TBI Case” Hosted by CAOC
Aug 18, 2026 Accredited Webinar* Using Agentic AI Ethically and Effectively in Your Practice Hosted by CAOC
Aug 6, 2026 Accredited Webinar* SB623: What It Means For Your Practice, Clients Hosted by CAOC
The Consumer Attorneys of California is a State Bar of California approved MCLE provider (#00324). Be sure to check online for information regarding credits offerred for these programs. Reach out to education@caoc.org with any questions about our accredited programs.
We hope to see you there!
Gary Gwilliam and Ibiere Seck, 2025 Annual Convention.
President’s Message
Where We Are, Where We Must Go - Together By Douglas Saeltzer
Past President (2012) Niall McCarthy , General Counsel Saveena Takhar , Political Director Lea-Ann Tratten , member Nick Rowley , Past President (2017) Greg Bentley , CEO Nancy Drabble , President (2026) Doug Saeltzer in Sacramento before the signing of SB 623.
Why did we choose this work? It wasn't for the easy cases, the guaranteed wins, or the clear-cut verdicts. We chose this work because we looked at a broken system and decided not on my watch, not today. That is who we are. That is what Consumer Attorneys of California has always stood for. Our theme this edition is justice without barriers. Those barriers are real. They come as forced arbitration clauses buried in fine print. As damage caps that tell a grieving family their loved one's life had a price ceiling. As billion-dollar corporations and the legislatures they lobby relentlessly. Our clients run into these barriers every day. The question is whether we are the ones who break them.
This year we answered that question. When Uber put an initiative on the path to the ballot that would have capped attorney fees in all automobile cases across California, we did not flinch. We organized, we raised the resources, we fought on every front, and we forced a company worth more than some nations to the table. The result is SB 623, now signed into law. Uber's statewide fee cap is gone. Common carrier liability stands. Injured people in this state will still have someone in their corner, still have access to care, and rideshare will be safer than it was. That is what barrier breaking looks like when it is done right.
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I do not tell that story for us to take a victory lap. I tell it because it is proof of what this organization can do when it moves as one. No other trial lawyer group in the country could have delivered that outcome. Not one. As your 2026 President, I am inspired every day by what I see in this organization. The tenacity, the creativity, the compassion, and the sheer will of attorneys, legal staff, law students, and legal vendors who refuse to give up. But the important question is not where we have been, but where we are going. The wins are real. Our record is strong. Our community is deep. But the road ahead demands more of us. The threats to consumer rights are growing bolder. The opposition is better funded and more organized than ever. We cannot afford to stand still, and we do not have to, because we will not be walking that road alone. With deep gratitude and unwavering resolve, I look forward to continuing this journey with you. P.S. - I do hope you will join me, Greg Bentley, and Nancy Drabble on August 6 for a webinar breaking down SB623. Details here.
A Special Thank You Thank you to our membership, CAOC staff, the campaign team, and our War Counsel.
Thank you to our Officers, Executive Committee, and Board of Directors.
Thank you to our Past Presidents Council for the legacy of leadership, wisdom and guidance they continue to provide. Thank you to the CAOC advocates for leading fearlessly, strategically, and aggressively. Thank you to the leaders, executive directors, and staff from our local and national sister trial lawyer associations for spreading awareness to their regions and working in lockstep with CAOC. Thank you to our fundraisers, our phone bankers, and signature gatherers. Thank you to our digital volunteers for using their social media influence to get the word out. Thank you to our donors! We raised a record-breaking amount in just a few months. None of this would be possible if it were not for the contributions of all of you. We are stronger when we all work together. Let us never forget it.
Douglas S. Saeltzer is the 2026 CAOC President. He is a shareholder with Walkup, Melodia, Kelly & Schoenberger whose main office is in San Francisco, CA. Doug focuses on resolving large cases on behalf of seriously injured people by way of trial or settlement.
dsaeltzer@walkuplawoffice.com
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SB 623: The New Rules for Rideshare Litigation By Saveena Takhar
Senate Bill 623 (Umberg) is the result of a negotiated compromise between Consumer Attorneys of California and Uber to avoid two competing statewide ballot initiatives while creating a new framework governing medical liens, attorney ethics, and Transportation Network Company (TNC) safety. The bill applies only to claims arising from automobile accidents involving TNCs, such as Uber and Lyft, where the plaintiff receives treatment from a lien-based medical provider for accidents occurring on or after January 1, 2027. In this context, a lien-based provider is defined as one who renders treatment pursuant to an agreement where payment is contingent upon the outcome of a case. Importantly, SB 623 does not change the existing law for either future medical expenses or for past medical bills paid by health insurance. In this limited area, SB 623 enacts a statutory framework detailing how medical damages will be proven, how lien-based treatment is documented, and addresses conflicts of interest between attorneys and medical providers. The bill preserves the ability of injured rideshare passengers to obtain medical treatment on a lien – a necessity for uninsured or underinsured Californians who otherwise may have no access to care.
One of the most highlighted provisions in SB 623 is the new standard for recovery of past medical expenses for lien-based treatment. In TNC cases, a plaintiff generally may not recover more than the 70th percentile of FAIR Health billed charges – or a comparable commercially recognized billed-charge database – for the same medical service in the applicable geographic area. Any amount billed above that amount is rendered void and unenforceable, meaning neither the provider nor any subsequent holder of the lien may collect the excess from the plaintiff, defendant, insurer, or settlement proceeds. Importantly, the legislation does not establish the FAIR Health amount as an automatic measure of damages. Defendants remain free to argue that a lower amount is reasonable, while plaintiffs must still prove the necessity and reasonableness of their medical treatment under existing law. Likewise, plaintiffs cannot recover more than the amount actually billed by the provider. Recognizing that some injuries require specialized treatment unavailable in the ordinary marketplace, SB 623 creates a narrow exception to the FAIR Health limitation. Before trial, a plaintiff may file a motion seeking authorization to recover more than the statutory cap by demonstrating, through clear and convincing evidence supported by expert testimony, that the treatment involved exceptionally rare or highly specialized services for which no reasonably comparable provider was available. However, unsuccessful motions carry consequences: if the court denies the request, the opposing party is entitled to recover reasonable attorney's fees and costs incurred in opposing the motion.
Saveena Takhar is CAOC’s General Counsel. Joining the legislative team in 2013, she specializes in consumer protection, civil procedure, and privacy rights. She worked to enact first-in-the-nation consumer protections for data breaches within the landmark California Consumer Privacy Act. Other key legislation includes ensuring equal damages regardless of race and a variety of civil procedure efficiencies.
stakhar@caoc.org
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The bill also changes the documentation required to recover lien-based medical expenses. Every medical bill must now be itemized using accepted healthcare billing standards, including CPT, HCPCS, ICD, or successor procedure codes. If a defendant contends the documentation is deficient, the statute provides a 30- day cure period after written notice, allowing the provider or plaintiff to supplement or clarify the records before the challenge becomes an issue in litigation. SB 623 addresses the practice of selling or financing medical liens. If a medical lien is sold, assigned, factored, or otherwise transferred, the maximum recoverable amount becomes the actual amount paid to acquire the lien, subject to the overall FAIR Health limitation. In addition, all agreements relating to lien sales or financing – including contingent or deferred payments – must be disclosed within 30 days and before settlement. Undisclosed assignments cannot later be asserted against defendants, insurers, or settlement proceeds. These provisions increase transparency while still ensuring access to care. In the same light of transparency, the bill's ethics provisions prohibit attorneys handling contingency fee matters from referring clients to healthcare providers in which the attorney or an immediate family member has a direct ownership interest. It also prohibits fee splitting, kickbacks, referral compensation, bonuses, or other financial incentives tied to referring clients for lien-based treatment. Attorneys likewise may not charge an additional contingency fee or administrative fee for negotiating or reducing medical liens. Violations may subject attorneys to State Bar discipline.
TNCs may obtain discovery regarding lien assignments, financing arrangements, referrals, ownership interests, compensation agreements, and other financial relationships relating to the treatment at issue. Providers may also be required to produce declarations stating whether the patient was referred by the attorney and approximately how many patients that attorney referred during the preceding 24 months. As a result, attorneys should expect increased transparency of referral practices and financial relationships. SB 623 also strengthens rideshare safety, the crux of CAOC’s sex assault counterinitiative. The bill requires annual criminal background checks for rideshare drivers, expands the categories of disqualifying criminal offenses (including additional sex offenses and assault-related crimes) and expressly authorizes women drivers and women passengers to request same-gender ride matches without violating California's anti-discrimination laws. Separately, California has also passed and signed AB 2155 (Aguiar-Curry), which expressly adds the federal prohibition on forced arbitration of sex assault and sex harassment claims to the California Arbitration Act. This aligns California with other states’ rideshare legislation that ensures victims of sex assault or harassment in TNCs can seek justice in court. Unlike Uber's proposed ballot initiative, the legislation does not impose contingency fee caps and does not limit recovery for past medical expenses in all automobile accident cases to 125% of the Medicare reimbursement rate. Instead, SB 623 enacted targeted rideshare-only reforms to lien-based treatment that preserves an injured victim’s ability to obtain medical care. At the same time, the statute demands greater transparency, ethical safeguards, and enhanced protections for rider safety.
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Breaking the Sixty-Year Barrier: SB 29 and the Fight to Preserve Survival Damages By Alina S. Vulic, Jacqueline Serna
California has spent four years experimenting with a simple proposition. When a person dies before their day in court, the wrongdoer should not get a discount on the human cost of what they did. Senate Bill 447, authored by Senator John Laird in 2021 and co- sponsored by the Consumer Attorneys of California, made that proposition operative. For survival actions filed between January 1, 2022 and January 1, 2026, plaintiffs could recover the decedent’s pain, suffering, and disfigurement, the same damages the decedent could have recovered while alive. On January 1, 2026, that window closed. California reverted to a rule that 45 other states and the District of Columbia rejected long ago. Senate Bill 29, also authored by Senator Laird and co-sponsored by CAOC, asks the Legislature not to leave this injustice in place. The bill would extend for an additional five years the temporary "survival statute" provisions that allow a decedent's personal representative or successor in interest to recover damages that would otherwise be unavailable after the victim's death.
As with the legislation that originally enacted these provisions, SB 29 faces strong opposition from the medical industry and its insurers. They are again seeking a special exemption for medical malpractice actions—even though medical malpractice defendants already benefit from the statutory cap on noneconomic damages under the Medical Injury Compensation Reform Act (MICRA), Cal. Civ. Code § 3333.2. The barrier SB 29 is designed to break is older than most of the cases it touches. Under the version of Code of Civil Procedure section 377.34 that California has now returned to, a survival action allows the decedent’s estate to recover only economic damages: medical bills, lost wages, and the like. The decedent’s pre-death pain and suffering, no matter how prolonged or how severe, is extinguished at the moment of death. A defendant who delays a case long enough to outlast a dying plaintiff gets to keep that money. The plaintiff’s family does not.
Jacqueline Serna is CAOC’s Policy Director. She joined CAOC in 2011 after working in the Assembly for then- Assemblymember Ricardo Lara. Jacquie has successfully helped passed legislation to permit post-death pain and suffering damages, ban secret settlements in sexual harassment and sexual assault cases, better the rights of elder abuse victims, ensure fair and just compensation for injured undocumented immigrants, and protect the rights of workers.
Alina S. Vulic is an Associate at Kabateck LLP where her practice focuses on complex civil litigation, including personal injury, employment law, wrongful death and medical malpractice. Alina has played key roles in nationally recognized and high- profile litigation, including the wrongful death case arising from the “Rust” film set shooting and the Robson v. MJJ Productions / MJJ Ventures, where she represented sex abuse survivors in complex negligence and corporate liability claims.
jserna@caoc.org
av@kbklawyers.com
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That rule did not arrive through reasoned policymaking. Legislative history shows that when the Legislature enacted survival damages provisions in 1961, the insurance industry lobbied to insert the language extinguishing pain and suffering. The Legislature wanted to preserve those damages. Industry pressure prevailed. The same defendants who benefit from court delays today have benefited from that language for more than 60 years. SB 447 was the first serious correction in California in a generation. It was structured as a four-year pilot, with mandatory Judicial Council reporting, because the Legislature wanted to measure the effect rather than make a permanent change in the dark. The pilot ran. The data came in showing no significant impact to defendants. And then the law expired before the Legislature acted to extend it. SB 29, as amended in 2026, would extend the recovery of pre-death pain, suffering, and disfigurement in survival actions through January 1, 2030. It preserves the reporting framework, extends the Judicial Council’s deadline to report back to the Legislature, and gives the state another four-year window to evaluate the law’s effect. For plaintiffs’ attorneys, the stakes of that extension are not theoretical. In the practice we handle every day, the survival damages rule can impact what cases get filed at all. Consider an elderly plaintiff in a nursing home neglect case. The injury is real. The suffering is documented. The defendant’s exposure under any honest accounting includes the months or years the plaintiff endured before death. Under the rule California has now returned to, that exposure disappears the moment the plaintiff dies, leaving only
the medical bills and whatever economic losses can be proven. Defendants understand this. So do their insurers. The settlement value of these cases is calculated against the probability that the plaintiff will survive to verdict, not against the wrong that was done. The same dynamic plays out in prolonged-injury cases more broadly: catastrophic injury cases where the plaintiff lingers, toxic exposure cases where the disease progresses slowly, and cases involving medically vulnerable plaintiffs whose mortality is part of the defense’s strategy. Without pre-death pain and suffering on the table, the math favors delay. The longer the case takes, the more likely the defendant is to win it through attrition. That dynamic is not hypothetical. Once again, defendants routinely refuse to agree to bench trials, object to virtual proceedings, and resist preference motions filed under Code of Civil Procedure section 36, the statute meant to give dying and elderly plaintiffs a faster path to trial. SB 447 was a partial corrective. SB 29 is the chance to keep that correction in place long enough to know what it does. The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) preserves pain and suffering damages for qualifying claims involving elder or dependent adult abuse, even after SB 447’s sunset. That is meaningful, but it is also narrow. It does not reach the universe of cases that SB 447 covered. The protections under Welfare and Institutions Code section 15657 require proof of recklessness, oppression, fraud, or malice, a substantially higher standard than ordinary negligence. For the broader category of personal injury, products liability, medical malpractice, and
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general negligence cases involving a plaintiff who dies before trial, the EADACPA exception offers no path. There is also a quieter consequence worth naming. The sunset has reintroduced a sharp filing-date cliff. A complaint filed on December 31, 2025, preserves access to pre-death pain and suffering. An identical complaint filed two days later does not. Two families with the same loss, same defendant, same facts, will recover dramatically different amounts based on a calendar. That is the barrier to justice this issue presents. It is procedural where it should be substantive. It rewards delay over diligence. It treats the human cost of injury as recoverable when the plaintiff happens to be alive and unrecoverable when they are not. It is the kind of barrier the Forum’s theme is built around. SB 29 will not solve all of it. The bill is structured as another extension, not a permanent change, and the opposition from the long-term care industry and medical industry is real. The Senate Judiciary Committee analysis notes that the Judicial Council’s first report identified only four cases that triggered the reporting requirement, a number CAOC and the plaintiffs’ bar see as reasonable given that most cases settle before trial. The next four-year window, with continued data collection, is the chance to settle that question with additional evidence. For now, the practitioner reality is that survival actions filed on or after January 1, 2026 are governed by the old rule. Economic damages remain. Punitive damages remain in the narrow cases where they apply. EADACPA remains for elder and dependent adult abuse claims that meet the heightened standard,
but for most, their non economic damages- their pain and human suffering- is extinguised.
Strategy matters more than ever, not less. Strong factual development, careful documentation of the decedent’s pre-death course, and a clear evidentiary record of what the defendant knew and when, all remain essential to the cases that come through the door. But the policy fight is not over. SB 29 is pending an Assembly vote in August. The Legislature has a chance, again, to ensure that California families are not punished by the calendar for losing a loved one before a defendant’s delay tactics run their course. That is the fight the Forum should be amplifying. It is the fight CAOC is leading, and it is the fight the plaintiffs’ bar should be ready to win. If you have examples of families that have been impacted by the law, send them to your CAOC lobbying team. Stories matter, your voices matter. Learn more about the CAOC advocates and get in touch today. Visit CAOC.org/ouradvocates to connect with the team.
Other Legislative Issues to Watch for August
Limits on Public Entity Liability
Restrictions on Childhood Sexual Assault Rights
Changes to Liability for IOU Caused Wildfires
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Feigned Ignorance Should Not Be Bliss: How to Handle “No Responsive Documents Exist” in Discovery By Jasleen Singh
You serve requests for production. Back come responses: “no responsive documents exist.” That seems perplexingly wrong; you were certain they would, or at least, should. This is a familiar response from major international corporations like auto manufacturers or tech companies with entities in the U.S. and abroad (Ford, Volkswagen, Samsung, Kia, etc.). The premise is that the U.S. entity is “just a distributor,” while the design, manufacturing, and quality roles all conveniently belong to an overseas parent company. The problem? This is rarely true. To sell a product in the U.S., the national companies must comply with U.S. federal regulations and report to domestic agencies. They must either have the necessary engineering, safety, design, and warranty information on hand, or they can readily receive, transmit and rely on it. Employees in the U.S. and abroad are interfacing daily via email. The data evidently exists for the purpose of business. Yet, for the purpose of litigation, it either “never existed” or is too far out of reach. As a result, litigating against large, international corporations is a behemoth of an undertaking with inequity closing in
on every turn. At the outset, consumers lack bargaining power. By the time litigation arises, consumers are left in the dark. Big companies frequently have deep pockets, stretchable time, and complex overseas structures they can utilize to escape from discovery obligations. To break this barrier to justice and effectively pursue consumer rights and safety, as advocates, we need to comfortably hold our ground in discovery, think creatively and outside the box, and persist to, through, and after trial. And these tactics are not new, they’ve just adapted over the last thirty years. In 1996, a physician claimed responsive documents from the FDA or independent review board were “stolen” ( Vallbona v. Springer (1996) 43 Cal.App.4th 1525). In 2006, an automaker concealed crash-test data for years ( Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202). In 2022, an automaker performed an electronically stored information (ESI) search in a way that was sure to return zero hits ( Higginson v. Kia Motors America, Inc . (2026) 118 Cal.App.5th 316). In 2025, I had a case against auto manufacturer, Volkswagen, that claimed it could not produce any documents related to its design, safety, and manufacturing because they did not exist. Instead, Volkswagen’s verified discovery responses swore the documents belonged to Volkswagen AG (Germany) and were not within its “custody, possession, or control.” So, what next?
Jasleen Singh is an associate attorney at Altair Law® based in San Francisco, CA. She practices personal injury litigation in cases involving severe injury or death. jsingh@altairlaw.com
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Step One: Hold Your Ground
Superior Court (2023) 93 Cal.App.5th 1348). If a party is not willing to verify or swear why no documents exist, then you’ve uncovered an inconsistency. File a motion to compel. Consider also serving an early demand for initial disclosures under Code of Civil Procedure §2016.090. This would require all parties in the action to disclose the names of persons likely to have discoverable information and all documents, ESI, and tangible items in their custody possession and control that are relevant to the subject matter of the action. If the responding party fails to include important documents like design, manufacturing, or safety information that would obviously be relevant, this can be used as supporting evidence of a pattern of discovery misconduct in a later motion to compel or for sanctions. This is not hyper technical, it is strategic. It forces the responding party to either own up to their evasive tactics or double down on their answer. If they double down, a motion to compel will likely be unsuccessful, but that is not the end. Pinning them to their answer lays the foundation for steps two and three.
Mandate compliance with the Civil Discovery Act. When a party claims no documents exist, Code of Civil Procedure §2031.230 requires: (1) an affirmation that a “diligent search and reasonable inquiry” was undertaken; (2) a specific explanation as to why they are unable to comply—is it because the requested item “never existed, has been destroyed, lost, misplaced, or stolen, or has never been or is no longer in the possession, custody or control of the responding party,” and; (3) a statement setting forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. If the responses do not comply with these requirements, send a meet and confer letter informing counsel that they are obligated to make a reasonable and good faith effort to obtain responsive information (Regency Health Services, Inc. v. Superior Ct. (1998) 64 Cal.App.4th 1496) and that “[a] party cannot plead ignorance to information which can be obtained from sources under his control” (Deyo v. Superior Court (1978) 84 Cal.App.3d 771, 782). If, after meeting and conferring, a party refuses to provide fully compliant responses that satisfy § 2031.230 (1)-(3) affirming the requisite search was undertaken, explaining why documents don’t exist, and identifying who may have responsive information, then file a motion to compel. Responses must also be verified. (Code Civ. Proc. § 2031.250; Pollock v.
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Step Two: Think Outside the Box
Commission (CPSC), Food and Drug Administration (FDA), Occupational Safety and Health Administration (OSHA), and Environmental Protection Agency (EPA)—maintain searchable databases of manufacturer submissions, recalls, and enforcement correspondence. Consider issuing Freedom of Information Act (FOIA) and California Public Records Act (CPRA) requests. Subpoena third parties. Consult colleagues at your firm and in your network who have litigated against the same defendant who could know what was, and what wasn’t, produced in other cases. A responding party or company that claims no documents exist, while simultaneously corresponding with a federal agency about the same documents, or that has previously produced responsive documents in other litigation, has just laid the foundation for you to file a motion for sanctions, a new trial, or both. In fact, in Higginson , another attorney at the plaintiff’s law firm had knowledge from a separate, prior case against Kia that Kia had responsive documents related to the engine defects at issue. Had that information been shared sooner, Kia’s discovery misconduct would have surfaced earlier. Collaboration is king. If those streams run dry, expose the search itself. Consider taking the deposition of the person who performed the search for responsive documents or verified the discovery responses. In Higginson , Kia’s verifier testified at deposition that a search for responsive documents was electronically conducted and was run with search terms consisting of various engine defects that would appear “both conjunctively and disjunctively.”
When the responding party swears no documents exist, ask yourself: if they don’t have them, then who does? Consider Higginson v. Kia Motors America, Inc. ((2026) 118 Cal.App.5th 316). The plaintiff sued Kia Motors America because his 2013 Kia Soul had serious engine defects. Plaintiff requested Kia to produce internal documents for any investigations it conducted into such defects. Kia’s verified responses complied with § 2031.230 in stating that it could not produce such documents because they “never existed.” Plaintiff’s counsel searched the National Highway Traffic Safety Administration (NHTSA) database and found a letter from Kia itself agreeing to produce documents on the same engine defects. The records Kia swore did not exist were found on a federal agency’s public website. Similarly, in Vallbona v. Springer , the defendant physician, Dr. Springer, operated a clinic specializing in laser cellulite removal. The clinic solicited patients by falsely representing that it was close to obtaining FDA approval for the procedure. The plaintiffs there requested documents relevant to Dr. Springer’s FDA applications, but they were told no such documents existed. At his deposition, Dr. Springer testified he never searched for the documents and then later testified that they were “stolen” in a burglary. On the second day of trial, Dr. Springer found responsive documents and brought them to court. Specifically, he brought correspondence with a federal employee from the Health and Human Services Department.
The lesson: look elsewhere. Federal regulators and agencies—NHTSA, the Consumer Product Safety
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NOAH D. LEBOWITZ MEDIATOR | ARBITRATOR
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exclusively to employment law, Noah brings an uncommon depth of focus and a refined understanding of both the legal and human dimensions of every workplace dispute. Years representing individuals in high- stakes, emotionally charged matters gave him an intuitive sense of what truly matters to the people at the table, and a conviction that genuine progress begins the moment parties feel heard. Composed, discerning, and meticulously prepared, he guides even the most demanding negotiations with quiet authority and a precision that turns conflict into resolution.
EXCLUSIVELY AT
Breaking Barriers to Justice
That kind of search would have been acceptable because it would have flagged documents in which any one or more of the search terms appeared, either alone or together with others. But that is not what happened. Midtrial, Kia admitted it searched only for records referencing the search terms simultaneously, meaning all the search terms had to appear together in the document for it to be identified as a search result. The trial court called this methodology “criminally stupid” and “dead on arrival.” The Court of Appeal added that “any victory achieved by such methods” in this court would be “short-lived and costly” ( Higginson , supra , 118 Cal.App.5th at p. 347). When the response is “no documents,” do your own research. Collaborate. Challenge the responding party’s methodology, not just the result. Depose the verifier on search terms, conjunctive vs. disjunctive logic, who ran the queries, and what instructions they were given, and when. The gap between how the search was described and how it was actually run is often where the truth lives. If any of these sources prove that either the response is false or the methodology a farce, immediately file a motion to compel and/or motion for sanctions.
Keep looking for the inconsistency. If you find it after discovery has closed, file a motion for sanctions. Evidentiary sanctions would prevent the responding party from trying to use the “newly found” forbidden fruit, and issue sanctions would utilize the false verified response as evidence of consciousness of guilt, willful concealment, or knowledge of a defect. To file a motion for sanctions, violation of a prior discovery order is not required so long as the facts support willful discovery abuse. In Vallbona , Dr. Springer argued plaintiffs waived their discovery demand by not bringing an earlier motion to compel. The Court of Appeal rejected this, holding that requiring a formal order to compel would have been "futile" where the defendant had falsely claimed the documents were stolen ( Vallbona, supra, 43 Cal.App.4th at pp. 1545-1546). The court called Dr. Springer's conduct "a total reprehensible violation of this court's rules, practices, and policies for a litigant to withhold documentation that is the subject of discovery and then surprisingly and unexplainedly find them during the trial." It imposed an evidence sanction barring Dr. Springer from now introducing the previously withheld documents, and an issue sanction, instructing the jury to take certain facts as established against the defense. A violation of a prior discovery order was also not required for issue and evidentiary sanctions in Karlsson v. Ford Motor Co. ((2006) 140 Cal.App.4th 1202). There, a five-year-old boy sitting in the rear center seat of a 1996 Windstar was rendered paraplegic after his spine was severed when his body jack-knifed over the lap belt seatbelt. There was no shoulder harness in the U.S. model, although Ford had been installing three-point harnesses in the same seat position in vehicles sold overseas. Ford
Step Three: Persist To, Through, & After Trial
If discovery closes and you are still stuck with a “no documents exist” discovery response, you are not out of options—even though you cannot compel production of documents sworn not to exist ( Sherman v. Kinetic Concepts (1998) 67 Cal.App.4th 1152, 1163; Higginson , supra , at p. 349 (trial court stated that if the response is no documents exist, the motion to compel must be denied)).
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improperly withheld internal memos and crash test reports showing it had known for twenty years that its lap belts were dangerous. The plaintiff filed five discovery motions. While the ultimate motion for sanctions arose out of a failure to comply with a PMK notice, the court looked to the long pattern of Ford’s conduct in persistently refusing to comply with discovery requests ( Karlsson , supra , 140 Cal.App.4th at p. 1202). The court barred Ford from presenting evidence on warnings and the technical feasibility of a safer seat belt design. The court also vacated its earlier order striking plaintiff's punitive damages claim, reinstating it on the ground that Ford's concealment warranted reconsideration. The jury awarded over $30 million in compensatory and punitive damages. The Court of Appeal affirmed. ( Karlsson , supra , 140 Cal.App.4th at p. 1202). The lesson of Karlsson : each motion you file, even if denied, documents a pattern. The cumulative record supported issue preclusion, evidence exclusion, and the reinstatement of claims the defendant thought it had already won. Sometimes the truth surfaces even later—after trial. This is where persistence really pays off. Most recently in Higginson , the Court of Appeal reversed a defense verdict, ordered a new trial, and directed the trial court to impose sanctions on Kia to cover Plaintiff’s attorney’s fees and costs for the entire first trial and appeal. The court found that Kia’s verified responses that no documents exist were “erroneous” and “wrong” and that Kia had obstructed discovery to the extent that it deprived plaintiff a fair trial. This amounted to an irregularity in the proceedings under Code of Civil Procedure § 657(1).
Jasleen’s Steps to Success: Hold Your Ground
Think Outside the Box
Persist To, Through, & After Trial
If you never find sufficient proof to contradict “no documents exist” and to warrant a motion to compel or for sanctions, strategize for trial. Tell the jury. A manufacturer markets, advertises, and sells a product or service to consumers in the United States, but has not a single document to show regarding its design, performance, quality control, or safety? Not one? Expose the absurdity. The takeaway spans three decades of California appellate law. When a responding party verifies that responsive documents were stolen, never existed, or are out of reach, the weight of that response lies with them. Hold your ground. Look outside the box. And when the truth emerges—use it. Corporate defendants who hide the ball are betting that plaintiffs’ counsel will either never source the truth or give up in the process. By refusing to accept “no documents exist” at face value, we ensure that feigned ignorance is not bliss—and that even if a defendant like Kia “got away with one today, … eventually the court will figure that out, and there will be a way of balancing the scales of justice” ( Higginson , supra , 118 Cal.App.5th at p. 352).
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Your Network is the Case By Taylor Ernst It is 4:47 PM the day of expert disclosure. You sit with your client’s file, and the same three questions circle: Do I have the right experts on this case, or am I one expert short? Why is the defense lowballing this case when the traumatic brain injury is real, and the client needs help? Am I going to have to try this case? Every plaintiff lawyer who has handled a catastrophic brain injury case has sat with those questions. And every honest one of us has heard the same answer in the back of our head: I do not know . Not because the answer does not exist, but because you have not personally done it before. A catastrophically injured client should never settle for less because their lawyer has not personally faced that exact problem. I looked at 300 TBI cases for other plaintiff lawyers last year. We focus on TBI. We wrote a book on it. Lawyers read it and call with questions, and we answer. I read files for cases I will never try. Neuropsych batteries, neuroimaging reports, life-care plans, defense expert depositions - across 300 files, the gap is almost never effort, intelligence, or commitment. It is exposure. The 4:47 PM questions do not yield to preparation. They yield to the lawyer who has already fought that expert, already negotiated
that stipulation, already watched that defense carrier's valuation model in five other files. The answers exist; they are just somewhere else in the plaintiff bar. This is not a money problem. Every plaintiff lawyer in this state has access to CAOC, to listservs, to lawyers who have tried these exact cases. The lawyer who deposed your defense expert last year is someone you probably already met at a conference. Bluntly, it is an ego problem. “ I can figure this out myself. ” That is the voice. It is not a character flaw; it is how we are trained. Own the file. Master the medicine. Outwork the other side. That works, right up until the question is one you have never personally faced. Preparation without exposure just means you are guessing with more confidence. This is not a plaintiff-versus-defense problem. The best plaintiff lawyers in this state have more accessible experience than any defense lawyer will ever bring against them. The asymmetry is inside our own bar, between the lawyer carrying the file alone and the lawyer who picked up the phone before the record hardened against the client. Your network is the case. The lawyer you reach out to because you remember they fought this expert three years ago. The prior transcript that changes the temperature of a deposition before you ask your first question. The colleague who says, “do not waste your time there, the weakness is over here.” I did not build this idea, I inherited it. My father, Don Ernst, built his trial practice on a rule that seemed odd to me when I
Taylor Ernst of the Ernst Law Group is a nationally recognized brain injury trial attorney and the 2024 California Lawyer Attorney of the Year. He wrote the book on TBI litigation, The Ernst Way . te@ernstlawgroup.com
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was younger. Other lawyers, lawyers he was not co- counseling, lawyers he had no financial stake in, would come try their cases out of our office. He would share the conference room, the trial cart, the transcripts, the experts he had worked with, the crosses he had already built. He would lend what he had spent a career accumulating to lawyers he barely knew on cases that would never pay him a dime. I asked him why. He said, " Because it's the right thing to do. " That was his version. Here is what I think he meant: the catastrophically injured person on the other end of the file did not care whose office did the work. They only cared whether the work got done. If he had already solved the problem another lawyer was still fighting, keeping it to himself was a quiet kind of failure.
Not a failure of competence, but a failure of whose work we think we are doing. Get the case right - that is the duty, not proving how much you can hold alone. A catastrophic case should not rise or fall on what one lawyer has personally faced. None of us has faced all of it. But together, we have. Someone in this bar has already deposed your expert, fought your carrier, litigated your exact injury presentation in front of your exact judge. They are one email away. The only thing standing between your client and that answer is your willingness to ask before it is too late. Nobody tries a catastrophic case alone. The only question is whether you admit it early enough to matter. Your network is the case. Will you lean into it?
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The Empty Briefcase in Phase Two of Trial: Obtaining Financial Evidence to Support California Punitive Damages Awards By Steven R. Young
The Victory That Isn’t
subpoena can reach them. Thank you, your honor.”
Your jury deliberates for three days. The court clerk reads the verdict: liability established, compensatory damages of $1.2 million, and findings of malice, fraud, and oppression by clear and convincing evidence. You enjoy a moment of satisfaction. Your client, a small business owner systematically defrauded by a larger competitor, stands vindicated. You exposed the predatory conduct. Your satisfaction lasts approximately ninety seconds. Defense counsel rises and announces that his client, a Delaware corporation with its principal place of business in Nevada, will not produce financial records. “Defendant has no California presence beyond the transactions at issue. Amoco Chemical Co. v. Certain Underwriters at Lloyd’s of London (1995) 34 Cal.App.4th 554, says this courts lacks jurisdiction to compel an out-of-state witness to produce documents.” The attorney continues as he begins packing his brief case, “The defendant stores its records in Nevada. Its CFO resides in Nevada - no California
You occupy an impossible position. You watch the three years and substantial resources you expended proving liability prepare to leave the courtroom. Your client endured the ordeal of trial. The jury performed its constitutional duty. Now, at the threshold of the punitive phase, the phase designed to punish and deter precisely the kind of calculated misconduct the jury identified, you possess no evidence of the defendant’s financial condition. Under Adams v. Murakami (1991) 54 Cal.3d 105, meaningful evidence of the defendant’s financial condition is as an essential prerequisite to any punitive award. Without it, even a finding of the most egregious misconduct cannot support a dollar of exemplary damages. The chair reserved for evidence of net worth is vacant. This scenario plays out with troubling regularity in California courtrooms. Plaintiffs who prove everything the law requires, who satisfy the demanding “clear and convincing” standard for for malice, fraud, or oppression, find themselves unable to close the loop because the defendant refuses to produce. Sometimes the evasion takes the form of jurisdictional gamesmanship, as in the hypothetical above. Sometimes it manifests as outright disobedience of court orders. Sometimes it flows simply from discovery decisions counsel made months or years earlier, when counsel underestimates
Steven R. Young is the founder and lead trial attorney with Law Offices of Steven R. Young based in Orange County, CA. He has tried more than 175 jury trials covering multiple practice areas. syoung@juryattorney.com
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