Wednesday, January 21, 2009
Page 7
PERSPECTIVES (Column)
Lawyer to Receive Private Attorney General Fees in Form of Gift Card for Dresses, Shoes, Handbags
By ROGER M. GRACE
Yorba Linda attorney Neil B. Fineman will soon have enough womens’ apparel to be able to open a dress store.
It seems that Fineman, 40, brought a class action by which he forced Windsor Fashions to stop committing routine violations of the Song-Beverly Credit Card Act. The class was comprised of all customers who, between Nov. 29, 2006—one year before the action was filed—and Nov. 18, 2008 (when the class was preliminarily certified) “purchased merchandise from Defendant’s stores in the State of California, used a credit card to make the purchase(s), and whose address, E mail address or telephone number was requested and recorded by a Windsor Fashions employee.”
Collecting “personal identification information” from credit card customers is proscribed by Civil Code §1747.08(a)(2).
Under a settlement, arrived at with the assistance of a mediator, it was agreed that Fineman was entitled to a $125,000 fee for his legal services. However, customers who were subjected to the proscribed practice won’t receive any cash under the accord...only a $10 gift card. In an order signed Friday, Los Angeles Superior Court Judge Brett Klein likewise provided that Fineman will be paid off in the form of such cards: “12,500 ten-dollar Windsor Fashions gift cards.”
The lawyer is to get 3,500 of those cards by next Monday and 750 of them on the third day of each month through January of next year. Too, the named plaintiff, Jacqueline Cohen, will garner 250 of the gift cards as an “incentive reward“ for leading the charge.
Ascertained members of the class have already been mailed or e-mailed $10 certificates, and others may assert class membership at any during a short period of time.
Does the outcome penalize Windsor Fashions for its erstwhile violation of the statute? Not much. It does afford Fineman the power to deplete the stock of any of its stores. However, the certificates going to consumers merely constitute inducements to come to a Windsor Fashions store and spend money, any expenditures being bound to exceed $10. In essence, they’re discount coupons. What Fineman has done is to promote purchases at the defendants’ stores.
Fineman could not be reached for comment.
NOT ORDINARY PROPERTY—A trial court judge in Illinois, in assessing damages, would treat injuries to a family pet the same as dents in a car. The Appellate Court of Illinois sees it differently.
If you’re in a traffic accident, it’s your fault, and the worth of the car you hit is only $200, your liability is for that sum—not the $4,784 the owner chose to pay to have the vehicle repaired. Whether in Illinois or here, liability for repairs to personal property will generally be limited to the fair market value.
Logan County Circuit Court Judge Paul G. Lawrence had that principle down pat. He applied it in the case which Mark and Mindy Leith brought against their neighbor, Andrew E. Frost, whose Siberian husky, Cosmo, had gotten into their yard, through Frost’s negligence, and attacked their dachshund, Molly. The Leiths sought $4,784, the amount they paid in veterinary bills. But Lawrence awarded only $200, the sum he reckoned Molly to be worth.
The Appellate Court’s Dec. 31 opinion—while expressing doubt “that anyone would pay $200 for a 7½-year-old dachshund that is not a show dog”—scuttles the paltry award, and declares the plaintiffs to be entitled to what they paid the vet.
Presiding Justice Thomas Appleton writes that a dog, though “personal property,” is in a special category. He says:
“A reasonable person in defendant’s position should have reasonably foreseen that if his dogs escaped from their enclosure and injured plaintiffs’ family pet, plaintiffs would feel compelled to pay considerably more than a nominal amount for veterinary care. It is common knowledge that people are prepared to make great sacrifices for the well-being and continued existence of their household pets, to which they have become deeply attached. They feel a moral obligation toward these animals. Emotionally, they have no choice but to lay out great expenditures when these animals suffer a serious physical injury.
“Illinois courts recognize that certain items of personal property, such as heirlooms, photographs, trophies, and pets have no market value....
“In the present case, plaintiffs have demonstrated how much Molly is worth to them by paying $4,784 for the dog’s veterinary care. Plaintiffs are not claiming a windfall; this is the amount they actually have paid or have contractually obligated themselves to pay. To prevent the award of damages from being nominal, we modify the trial court’s judgment so as to award plaintiffs $4,784 in compensatory damages instead of $200.”
The Illinois court adopted the rule set forth in a 2006 Kansas Court of Appeals decision: “[W]hen an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment.”
The flaw in that standard—aside from being stated in terms of a dog being an “it”—is that recoupment of veterinary fees being contingent on the dog recovering his or her health. Why? If the dog remains afflicted with ailments, or dies, the outlay to the vet remains the same, and compensation should be allowed for it.
The motorist who spends $4,784 to have a $200 jalopy fixed acts based on whim. It’s sensible to apply the rule that if the cost of repairs exceeds the diminution in value, only the latter is compensated. On the other hand, a pet custodian who spends $4,784 on medical care for the animal acts out of necessity, and recompense by the tortfeasor capped at the resale value of the pet, or whether the pet’s recovery is complete or not, seems to me wholly unreasonable.
SPEAKING OF PETS...: The California Supreme Court’s stellar member, Joyce Kennard, displays incisive thinking, as she so often does, in a dissent filed Dec. 29…though the dissent does contain a one-sentence gaffe.
The majority in People v. Olguin, 45 Cal. 4th 375, upholds a condition of probation imposed on a drunk driver that he let his probation officer know 24 hours in advance of bringing any pets into his abode.
Chief Justice Ronald M. George’s opinion for the majority declares:
“Pets residing with probationers have the potential to distract, impede, and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of such pets, this notification condition facilitates the effective supervision of probationers and, as such, is reasonably related to deterring future criminality.”
Kennard, joined by Justice Carlos Moreno, retorts:
“[T]he majority, in upholding the probation condition, treats any pet as potentially ‘life threatening.’ Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one would expect to strike fear in a probation officer. The majority’s safety concern could easily be met by a more limited probation condition related to the keeping of dangerous animals.”
Appointed in 1989, Kennard has lost none of her verve.
The dissent continues:
“The majority expresses concern that pets may warn the probationer of the probation officer’s presence, thereby interfering with unannounced visits and searches. I find that concern puzzling for two reasons. First, the probation condition does not solve the problem the majority poses because the probationer need only give notice that he or she has a pet; nothing in the condition prohibits probationers from having a pet....Second, warning the probationer is irrelevant, because a probation officer cannot just barge into a probationer’s residence. The law requires knocking or other means of notice of the officer’s presence, and an announcement of the purpose of the visit....This requirement itself warns the probationer of the officer’s presence.”
Kennard says she “would require probation authorities to draft a narrower and more rational probation condition.”
A sound dissent it is, effectively exposing the silliness of George’s discourse. However, the jurist unfortunately tosses in one sentence that reflects rather strained reasoning. She says:
“Indeed, the overbroad pet notification condition may itself interfere with achievement of probation’s rehabilitative goals because the notification burdens it imposes may discourage pet ownership, thereby depriving probationers of the well-documented physical and mental health benefits of animal companionship at home.”
In a 1994 decision, she alluded to those benefits in connections with sharing a home with two particular species, saying:
“Those of us who have cats or dogs can attest to their wonderful companionship and affection. Not surprisingly, studies have confirmed this effect. (See, e.g., Waltham Symposium 20, Pets, Benefits and Practice (BVA Publications 1990); Melson, The Benefits of Animals to Our Lives (Fall 1990) People, Animals, Environment, at pp. 15-17.)”
As I sit here writing this with two German Shepherds by me (I’m writing it at home), I can’t disagree with Kennard’s assessment as to the value of having canine members of the household…though I’m oblivious as to anything to be gained in having cats about.
Anyway, Kennard’s supposition that probationers would be prone to forego the companionship of animals if the probationers had to notify their probation officers 24 hours in advance of bringing them home invokes a prospect that is remote. It’s not that the probation condition is onerous; the point is that it’s senseless, and court orders serving no valid purpose should not be allowed to stand.
What if Stanley the safecracker went to a fair, paid his 25-cents, pitched a ping pong ball and it landed in a bowl containing “Jaws the goldfish”? Jaws would now belong to him. If, under a condition of probation, he could not bring Jaws home until 24 hours after he forewarned his probation officer that the goldfish would be on his premises, such a restriction would be asinine, in furtherance of no statutory criterion for probation conditions, and violative of due process. But the flaw relates to purposelessness, not burden. Stanley could surely stash the goldfish somewhere for a day. In these days of e-mail and fax, notification to the probation officer would not even require getting him or her on the line. The condition of probation would not conceivably result in Stanley and Jaws not being united.
Would the requirement of providing 24 hours notice deter a probationer from buying a dog? Bringing a dog into a home entails a major commitment. The dog needs feeding and care; there are trips to the veterinarian, sometimes the need to administer pills twice a day. If the slight inconvenience of having to alert the probation officer as to the intended presence of a dog would deter a probationer from buying that dog, as Kennard envisions, that probationer would be too lazy to give the dog the attention he or she would need.
Copyright 2009, Metropolitan News Company