(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT, AS WELL AS A PRAYER FOR PUNITIVE DAMAGES BECAUSE CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL
Preventing plaintiffs from stating the amount of damages they seek violates a litigant’s First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.
To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:
A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results … urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (CODE OF CIVIL PROCEDURE SECTIONS) 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature’s apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever. (Emphasis added).
Time marches on.
Eight years later, in Aguilar v. Avis Rent-a Car (1999) 21 Cal. 4th 121, 144, 87 Cal.Rptr.2d 132, the present Chief Justice of California wrote:
Unlike the pervasive chill of an abstract statutory command that may broadly affect the conduct of an absent class and induce self censorship the decree here did not issue until after these defendants had had their day in court … (Emphasis added).
CODE OF CIVIL PROCEDURE SECTIONS 425.10 and 425.13(a) might well have been in the mind of the Chief Justice. (See Part 5 OF 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.