AL’s potential breadth, it is important that the FAL liability standard be administered by trial courts, which can "set forth their reasoning for a determination that the FAL has been violated so that a body of precedent can evolve to inform businesses of advertising practices they must avoid." (Maj. opn., ante, 261 Cal.Rptr.3d at p. 731, 462 P.3d at p. 476.) As an argument for cabining the scope of the constitutional jury trial right, I find this reasoning unpersuasive. Binding precedent is made only by appellate courts, and an appellate decision on sufficiency of the evidence fills out the precedential picture regardless of whether trial was to a jury or to the bench. And while it might be thought desirable from some points of view to have all FAL actions heard by judges, the same might be said for any number of civil causes of action. Defendants in insurance bad faith cases, for example, might well prefer bench trials and could argue that they, too, need a body of precedent to guide their actions. But they get such precedential guidance from appellate decisions on legal issues. (E.g., Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 721–726, 68 Cal.Rptr.3d 746, 171 P.3d 1082 [propriety of summary judgment].) It would not be consistent with the constitutional mandate that trial by jury "is an inviolate right and shall be secured to all" ( Cal. Const., art. I, § 16 ) for us to pick out categories of civil actions that, because they sometimes raise complicated factual issues or implicate common business decisions, we regard as more suitable for trial to the court.
In the end, however, while it seems to me the majority comes up short in its effort to show that FAL claims implicate inherently equitable judgment uniquely suited to a court, I agree that the present action was nonetheless predominantly equitable in character.
First, as the majority explains, even if liability for civil penalties is deemed a legal question, the amount of such penalties under the UCL and FAL is decided by the court on an equitable basis, along with questions of injunctive relief and appropriate restitution. (Maj. opn., ante, 261 Cal.Rptr.3d at p. 745, 462 P.3d at p. 488 ["[T]he UCL and FAL statutes specify that in assessing the amount of the civil penalty to be imposed under these statutes, the court is afforded broad discretion to consider a nonexclusive list of factors that include the relative seriousness of the defendant’s conduct and the potential deterrent effect of such penalties, the type of qualitative evaluation and weighing of a variety of factors that is typically undertaken by a court and not a jury. ( Bus. & Prof. Code, §§ 17206, 17536.)"].) The parties do not dispute that even if the request for civil penalties triggered a jury trial right, the right would extend only to the trial on liability; the ultimate amount of any penalties awarded would be decided by the court. Such an arrangement is not unprecedented (see Tull, supra, 481 U.S. at pp. 425–427, 107 S.Ct. 1831 ), but this allocation of remedial authority does diminish the practical importance of the jury’s factfinding role and, in my view, strains the idea that the gist of the action is predominantly legal.
Second, and equally important, the causes of action under the UCL and the FAL are inherently intertwined. This is because "unfair" competition under the UCL expressly includes "any act prohibited by" the FAL ( Bus. & Prof. Code, § 17200 ), meaning that every violation of the FAL is therefore also a violation of the UCL. When, as here, allegedly deceptive conduct is pleaded as a violation of both statutes, the same liability questions that a jury would decide for purposes of the FAL would be decided by the court for purposes of the UCL. And while it might be theoretically possible to separate out the UCL claims that depend on equitable principles from those that do not, in practice the effort to keep the claims separate would be bound to collapse, since each UCL cause of action in a complaint is not necessarily limited to a single type of conduct or a single legal theory of liability. In these circumstances, trying liability under the FAL to the jury, while the rest of the action was decided by the court, would create procedural complications without significant benefit to the defendant demanding jury trial. Because the FAL and the UCL are intertwined in this manner, a trial court that considered the defendant’s advertising deceptive could impose liability under the UCL before even putting the FAL liability question to the jury. (See maj. opn., ante, 261 Cal.Rptr.3d at p. 737, 462 P.3d at p. 481 [trial court has discretion as to order of trying severable legal and equitable issue].) The court could then exercise its equitable judgment to impose both injunctive relief and substantial civil penalties for the UCL violation, regardless of the jury’s view as to FAL liability. In other words, although every found violation of the FAL triggers civil penalties under the UCL, the inverse is not true; a jury’s finding of no FAL liability would not preclude a judge from awarding substantial civil penalties under the UCL. Because of the way these intertwined causes of action relate when the same conduct is at issue, the jury’s verdict does not ultimately determine whether civil penalties are imposed.
Plaintiffs here seek a traditionally legal remedy, civil penalties, along with the equitable remedies of injunction and restitution. They also plead causes of action under the FAL, for which liability appears to rest on factual determinations rather than equitable judgment, as well as the UCL. But in the end, the equitable facets of this action predominate over the legal ones. The amount of any civil penalties would be determined by the trial court on the basis of equitable principles, allowing the court to all but nullify any jury finding of an FAL violation. What is more, the court could effectively override any jury decision against FAL liability by imposing liability for the same conduct under the UCL before the FAL issue is ever tried, then awarding plaintiffs injunctive relief and penalties for that violation. For these reasons, I agree with the majority that the action is predominantly equitable in nature.
01 Nov White Paper: Patient Advocate Perspective
Posted at 01:47h in Educational Resources
ILC Patient Priorities
ILC patient advocates attending the 2016 First International ILC Symposium developed a white paper, Advancing Lobular Breast Cancer Research, Screening, Treatment and Follow-up Care.
This paper outlines advocate-identified opportunities to promote ILC as a distinct cancer requiring:
- Refinements in screening and patient care
- Enhancements to patient and provider education
- Substantive measures to accelerate efficient research.
Many of the conclusions in this paper form the basis for LBCA’s formation and our mission.
Your Guide to CNA Jobs
If you want to get a head start on the nursing profession and find out what it’s really like, you could get a job as a certified nursing assistant, or CNA. A nursing assistant is essentially the direct care provider for the patients. You will help patients with a variety of tasks, including toileting, feeding, and bathing. Although it doesn’t sound very glamorous, you get to know your patients on an intimate level and can find a great deal of reward in truly helping someone. There is nothing quite like providing a patient with the soothing comfort of a bath after they have been in a hospital for two weeks.
The advantages to becoming a CNA are the limited education requirements and the flexibility. To become a certified nurses aide, you can take a course that lasts for only a few weeks. Some of these courses are even offered online, but you will have to participate in clinicals on-site to pass the class. You can choose to become a CNA for life with nothing more than a simple 4 to 8 week class. You can also decide to move ahead in the nursing world. Many Registered Nurses (RNs} and Licensed Practical Nurses (LPNs) were nursing assistants themselves when they first started out. The job provides for great experience, and it is often a springboard to bigger and better things.
Overview of Certified Nursing Assistant Jobs
Certified nursing assistants are used all through the medical hierarchy, and you can find CNA jobs in a wide variety of places. The most common place to find a job is in a nursing home. These facilities often run on a backbone of great nursing assistants who care about their jobs and want to make a difference in the life of a resident. The next most obvious place is in an acute care hospital. Although much of the more technical work is done by RNs in these facilities, CNAs are still called on to answer call lights, toilet patients, and perform simple tasks. You can also find jobs in doctor’s offices, home health care agencies, and as a private contractor.
When you work in a certified nursing assistant job, you will be under the direct supervision of an RN or an LPN. Usually, they will tell you what to do, and they are the people you report to when you have a problem. You will be expected in this job to care for the patient’s activities of daily living. You will help them turn in bed, take in fluids and food, and use the toilet. You can either use a bedpan for toileting or help the patient to the bathroom. You are also responsible for collecting vital signs and reporting abnormal values to the nurse. You may be called on to feed patients who can’t feed themselves, answer call bells, and change linens on a patient