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Martin Luther King Jr.

Saturday, April 14, 2012

The hope of a secure and livable world lies with disciplined nonconformists who are dedicated to justice, peace and brotherhood.

Filed in Access to Justice | | Comments (0)

Developer Cannot Enforce Arbitration Provision in CC&R’s

Thursday, November 10, 2011

In Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc., Case No. B225086, the Second Appellate District of the Court of Appeals for the State of California held that a developer being sued in a construction defect action brought by a condominium homeowners association cannot compel binding arbitration pursuant to an arbitration provision in the declaration of the covenants, conditions, and restrictions (CC&R’s) for the development.

The developer constructed and marketed a 90-unit condominium complex in Playa Vista, California.  Before the homeowners association came into existence (or even one unit was sold), the developer drafted, executed, and recorded a set of CC&R’s which included a provision that any disputes between the developer and homeowners association must be submitted to binding arbitration.  The provision included a provision that this could not be amended without the consent of the developer.  The initial purchase agreements between the developer and the first purchasers of units included similar arbitration provisions.

The unanimous opinion, authored by Presiding Justice Robert M. Mallano, found that the developer cannot enforce the arbitration provision in the CC&R’s.  Under Civil Code §1354, the covenants and restrictions are enforceable, equitable servitudes that are for the benefit of “all owners of separate interests in the development.  Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”  Since the developer did not have an ownership interest in the development, it could not enforce the provisions of the CC&R’s.

The Court’s opinion found that this ruling was supported by Civil Code §1375 which requires homeowners associations to pursue mediation with a developer, builder, or general contractor before filing suit.  The complex alternative dispute process put in place by the legislature suggests that the CC&R’s cannot require a second ADR process for claims against developers.

Filed in California, Construction | | Comments (0)

Employer Liable for Injuries Caused When Construction Worker Moved His Pickup Truck

Friday, November 4, 2011

On November 1, 2011, the California Court of Appeals for the Fourth Appellate District issued an opinion drafted by Justice Betty Ann Richli (with Justices Ramirez and Miller concurring) in the matter entitled Vogt v. Herron Construction, Inc., Case No. E052434.  Plaintiff was working at a construction site for a cement subcontractor when an employee of Defendant parked his personal pickup truck near the area where cement was about to be poured.  Plaintiff informed him of the truck’s proximity, and the employee moved his truck.  While moving the truck, he ran plaintiff over.

Defendant argued that it could not be held liable under a theory of respondeat superior because its employee was not acting in the course and scope of his employment.  The trial court agreed and granted summary judgment to Defendant.  The Court of Appeals reversed finding that the plaintiff had presented evidence that, by moving his truck, Herron’s employee furthered the overall construction of the project; the resulting risk of injury was inherent to the enterprise.  Moreover, even assuming that he had the subjective purpose of preventing damage to his own truck, moving the truck was necessary to his comfort, convenience, and welfare while on the job and thus still within the scope of his employment.

The Court stressed (1) that the accident occurred on the worksite, (2) that the possible reasons for the employee moving his truck included work-related choices, (3) that subcontractors have an interest in cooperating, and (4) it was foreseeable that one contractor could ask another contractor’s employees to move their vehicle because the employees had a regular practice of parking as close to the project area they were working as possible.

The case has been remanded and plaintiff was awarded its costs in bringing the appeal.

Filed in California, Construction, Personal Injury | | Comments (0)

California Court of Appeals Denies Law Clerk Overtime

Monday, October 31, 2011

Matthew Zelasko-Barrett worked as a law clerk for Brayton-Purcell, LLP from August 2007 to June 2009 while he attended law school.  During that time period, he performed tasks customarily performed by junior attorneys including drafting pleadings and discovery demands and responses, conducting legal research and drafted memoranda of points and authorities and supporting declarations, interviewing witnesses, assisting in deposition preparation, and interacting with opposing counsel concerning discovery issues.  Mr. Zelasko-Barrett brought a wage and hour claim against his employer for failure to pay him overtime wages and other benefits.

The trial court found that plaintiff was exempt from overtime protection.  The California Court of Appeals also rejected his argument and found that although he had not passed the bar examination and was thus not licensed to practice law, he did qualify as a “learned professional” and was thus exempt from overtime under Labor Code §11040.  On appeal, plaintiff stated that since the statute mentions law as a profession for which a license is required, he clearly could not fall into that exemption because he did not have the requisite license.

The Court looked to a recent Ninth Circuit Court of Appeals decision to support this finding.  In Campbell v. PricewaterhouseCoopers, LLP (E.D.Cal. 2009) 602 F.Supp.2d 1163, 1172, revd. (9th Cir. 2011) 642 F.3d 820 (Campbell), the Ninth Circuit held that unlicensed associates at an accounting firm were “learned professionals.”  The Court found that Section (a), which requires licensing, is really an easier and separate test for proving an employee falls under the “professional exemption.”  Licensing is not the only test, and the Court focused on the fact that plaintiff met the criteria enumerated in Section (b).

Law clerks in Mr. Zelasko-Barrett’s position were treated as junior attorneys and had similar job duties and responsibilities.  The evidence presented in support of Brayton-Purcell’s Motion for Summary Judgment was sufficient to show he worked in a professional capacity and was thus exempt from receiving overtime compensation.

Filed in California, Employment Law, Law Firm, Ninth Circuit Court of Appeals | | Comments (0)

Can I Steal My House Back? California Adverse Possession Law

Wednesday, September 7, 2011

A friend of mine recently shared a link through Facebook from the Dallas Observer News.  The article outlined how Ken Robinson was squatting in a suburban Texas house for $16 in court fees after making a claim of adverse possession.  The story outlines Mr. Robinson’s background, the colorful characters who visit his house to ask if they could get their own houses through adverse possession, the disgruntled neighbors who have called the police to arrest him, and discusses how adverse possession is treated in Texas.  Mr. Robinson stated that he hoped to contact the original owner and lender to negotiate a purchase of the property, but he is content to stay in the home for now and see what occurs.

Naturally, I had to ask if anyone had tried a similar scheme in California.  Although the law of adverse possession may be unheard of in Texas, it is fairly common place in California (where my initial search on Google returned over 200 results for 2011 alone).  To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.  Successfully proving all of these elements will provide the claimant with title to the property at issue.  However, proving all five of these elements is extremely difficult.

The recent case of Hacienda Ranch Homes, Inc. v. Superior Court reveals some of the difficulties.  An undeveloped property in Tracy, California was split between owners in common.  Roger and Annette Elissagaray purchased a 24.5% interest in the property at a tax sale in 1999.  In 2005, they brought an action to quiet title as sole owners of the property under the theory of adverse possession.  The question on appeal was whether they had acted sufficiently to oust their co-tenants from their shared possession and claim of ownership.  The Court of Appeals found that discing the property each year, the Elissagarays’ introduction of themselves as the owners of the property, and posting a for sale sign near the property were not sufficient to oust the other owners.  Ouster requires that the claimant prove they acted in such an adverse character, such as claiming the whole for themselves, denying the title of co-tenants, or refusing to permit co-tenants entry to the property.

Even though the other owners did not enter the property, made no use of the property, and did not improve the property does not extinguish their right to maintain an ownership interest in the property.  While Mr. Robinson has found a situation where the former home owner is missing and the lender went bankrupt (its assets are currently owned by Bank of America), it is unlikely that he will escape notice before the statute of limitations runs for his adverse possession.  However, I could imagine (though not advise) that others will attempt similar actions as more and more properties are abandoned.

Filed in California, Debt, Real Property | | Comments (0)

Howell v. Hamilton Meats Ushers in New Era of California Tort Reform

Tuesday, August 23, 2011

When I began practicing law in 2004, I was immediately struck by a strange division in opinion between the plaintiff’s bar and defense counsel.  While questions of liability and causation could be answered with relative certainty, no one was able to properly judge the value of a plaintiff’s injuries.  I recall a car accident case where the parties could not settle for more than a year because the outstanding medical bills were worth either $25,000 (based on the discounted amount the plaintiff’s insurance provider paid) or $275,000 (based on the amount charged by the medical providers).  Since the plaintiff was seeking a multiple of these bills as a basis for his settlement demand, the parties were unable to reach an agreement.  The case was only able to settle when the defendant’s insurance company purchased the rights to those bills to settle the matter once and for all.

I recall another case where the parties were separated by almost $100,000 in their valuations of the underlying medical damages.  During a judicial settlement conference, the judge admitted that both parties had grounds for their arguments.  Again, settlement was reached only when the plaintiff was able to get assurances from his insurer and medical care providers that their liens were limited to the adjusted amounts.

In Howell v. Hamilton Meats, S179115, the California Supreme Court (decided 6 to 1, with only Justice Klein dissenting) ended these disputes by stating that plaintiffs cannot recover the undiscounted amount because “the injured plaintiff did not suffer any economic loss in that amount.”  In Howell, the plaintiff claimed $189,978.63 as past medical expenses and was awarded this amount in a jury verdict.  The defendant made a post-trial motion to reduce the verdict by $130,286.90, the amount written off by the medical care providers.  Plaintiff opposed the motion by stating that reduction of the medical bills because of agreements between her insurance and her medical providers would violate the collateral source rule.  The trial court granted the reduction, but the Court of Appeals reversed and allowed the full medical bills to stand.

The Howell decision states that to be recoverable a plaintiff’s damages must be incurred and reasonable.  “Thus the general rule under the Restatement, as well as California law, is that a personal injury plaintiff may recover the lesser of (a) the amount paid or incurred for medical services, and (b) the reasonable value of the services.”  This results in a fair determination of plaintiff’s actual medical bills, not a windfall for the tortfeasor.  The Court reviewed the complex history of medical billing and the amounts billed insured and uninsured patients are often above the amount that are finally paid.  The Court noted that plaintiffs with insurance plans that have already agreed to set pay rates with providers cannot claim amounts above the negotiated rates.

The Court held that “an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial.”  Where a jury has heard evidence at trial of the amount a medical provider has accepted as full payment but has awarded greater damages for past medical expenses, the defendant may move for a new trial on grounds of excessive damages.  The trial court may then permit the plaintiff to choose between (1) accepting the reduced damages or (2) undertaking a new trial.

Justice Klein’s dissent does not disagree that the plaintiff should be limited to a recovery of the reasonable amount of damages.  However, the dissent states that the reasonable, or market, value should be determined by expert opinion testimony.  However, the majority felt this violated the bar against presenting evidence of insurance and collateral payments to the jury in determining damages.

California is often portrayed as a plaintiff-friendly state that discourages business by failing to limit damages.  With this ruling, the California Supreme Court has effectively limited the plaintiff’s bar from recovering a huge amount of potential damages.  This case will reshape litigation throughout the state.

Filed in California, Insurance, Notable Decisions/Settlements/Verdicts, Personal Injury | | Comments (0)

How Safe Is Your Workplace?

Tuesday, August 16, 2011

Do you work with chemicals?  Machines?  Dangerous animals?  If you work in an office, your workspace may seem perfectly ordinary and safe, but ask yourself has anyone ever been injured in the office?  Could it have been prevented?

In July 2011, the California Department of Industrial Relations cited Baxter Healthcare Corp. dba Baxter Bioscience with 11 safety violations (four serious and willful violations, six serious violations, and one general violation) for an incident in January 2011 where one employee was killed and two others were seriously injured on the job when they entered a confined space that lacked sufficient oxygen.  Allegedly, a supervisor found the first employee unconscious and ordered the other two employees to enter the confined space to rescue him.  They remained in the chamber until firefighters could rescue them.  The proposed penalties for this incident (outside of any workers’ compensation or civil claims the workers and their families may bring) are $371,250.

You may feel that this story has nothing to do with your job, but industrial employers are not the only employers who have faced serious penalties for a failure to implement better safety policies in the last year.  Penalties have been issued against the entertainment industry ($14,175), mental health facilities ($100,140 and $16,875), a window cleaning company ($17,550), and a construction company ($128,945) for safety violations that led to employee injuries and fatalities.  The most frustrating part of reading the stories about these violations is the seeming lack of common sense displayed by people who should have known better.

Rather than issuing specific a single set of regulations for workplace safety that could apply to all employment situations, California has placed the burden of workplace safety on employers.  Since 1989, employers have been required to develop and maintain a written Injury and Illness Prevention Program that identifies those hazards and risks which impact their workplace in a reasonable manner.  The employer is then responsible for creating its own safety standards.  While this may seem inefficient, the Department of Industrial Relations states that an effective employer-developed program leads to improved workplace safety and health, better morale, increased productivity, and reduced costs of doing business.

Because an ineffective written program can have both civil and criminal repercussions, it is important that employers treat these safety programs seriously.  Any inspections by the Division of Occupational Safety and Health must include an evaluation of the employer’s written Injury and Illness Prevention Program.  The inspection will also require interviews of the members of the occupational safety and health committee that oversees the drafting and implementation of the program.  At a minimum, the program must have the following:

  1. Identification of the person(s) responsible for implementing the program;
  2. A system for identifying and evaluating hazards, including, but not limited to, periodic inspections to identify unsafe conditions and practices;
  3. Procedures for correcting unsafe conditions and practices in a timely manner;
  4. Effective means of communicating with employees so that they can report hazards without fear of reprisals;
  5. A training program designed to instruct employees in general safety and healthy work practices (including specific instruction for hazards they will face in their position); and
  6. A method for ensuring employees follow all safety practices, including the possibility of disciplinary action for safety violations.

The Department of Industrial Relations provides guidance to employers regarding the general steps they can take to protect their employees at http://www.dir.ca.gov/DOSH/etools/09-031/index.htm.  However, their guidelines are not meant to encompass every possible hazard or dangerous condition.  Every employer must take the time to prepare an Injury and Illness Prevention Program and to make sure that the program is actually enforced in the workplace because the employer will carry the burden of proving each element of any defense in order to contest the citation.  If an employer is cited for violations of Cal/OSHA safety standards, its defenses are limited and largely hinge on the fact that it has a safety program.

Rather than waiting for a serious accident, employers should take the time to review their offices, shops, factories, and other workplaces to ask themselves a series of simple questions.  Are there any dangerous conditions in this space?  Can conditions be made safer?  Can I better train my employees to handle these dangers?  How can I make sure employees report accidents?  How can I make sure employees report dangerous conditions before accidents?  Safety should always be a top priority, and making it a part of day-to-day business will save companies money in the long run.

Filed in Business, California, Employment Law | | Comments (0)

Bowen Law Firm Moves to New Office

Friday, August 5, 2011

William Bowen is proud to announce the opening of Bowen Law Firm’s new office at 1700 Eureka Road, Suite 155H, Roseville, California 95661.  The new office space is conveniently located just south of Douglas Boulevard and near Interstate 80.  It offers a prime, central location for the firm’s clients.  You are formally invited to visit this new space or contact us at 916.742.2220.

Filed in California | | Comments (0)

A Few Legal Thoughts

Monday, August 1, 2011

Inertia, incompetence, status, power, cost, and risk are a formidable set of motivations to keep legalese. Their tenacity should not be underestimated. One observation must be made, however. These motivations lack any intellectually or socially acceptable rationale; they amount to assertions of naked self-interest.
Robert W. Benson, Professor of Law, Loyola Law School.

 

I shall not rest until every German sees that it is a shameful thing to be a lawyer.
Adolph Hitler

 

The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law.
-Winston Churchill

 

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
- Thomas Jefferson

Filed in Uncategorized | | Comments (0)

Three Key California Supreme Court Cases

Thursday, July 21, 2011

I decide to take a short break from blogging because my office is getting busy, and what happens?  The California Supreme Court decides to issue three important opinions in less than three weeks.  I’ve read these cases, and I think they are going to have interesting impacts on California’s future employment outlook and environmental outlook.  Most striking to this observer is the fact that none of these cases were close.  The first two cases were decided unanimously, while the last had only one dissenter.

Needless to say, this is the last time I will plan on staying away from the blog for such an extended period of time.  Without further ado, here are breakdowns of the three history making opinions.

  • Sullivan v. Oracle Corporation, S170577.  The issue in this case was whether or not California’s generous overtime protections would apply to workers who resided in other states and came to California for special projects.  Oracle (a company based in California) had hired nonresident employees to work both in California and other states.  The three plaintiffs were hired by Oracle as instructors, training customers in the use of the company’s products.  After a class action was brought in 2003, Oracle had paid overtime to its instructors under the Labor Code and FLSA.  Plaintiffs sought recovery based on work days of longer than 8 hours and work weeks longer than 40 hours.  The Court answered three specific questions.  First, the Court asked whether the California Labor Code’s overtime provisions apply to work performed in California by nonresidents, and the majority found that it does.  Second, the Court asked if these Labor Code violations triggered liability under the UCL, and again it found the employer’s failure to pay overtime was a violation and unlawful business practice.  Finally, the Court asked if the UCL claims could apply to overtime work performed in other states, and the Court found that it did not.  The fact that a California based employer decided (wrongfully) to classify its employees as exempt did not give sufficient grounds to extend claims for work down outside of California.  In this case, the California Supreme Court has outlined the state and stated that its employment laws will apply within its borders, but it refused to enforce those laws on work performed in other jurisdictions.
  • Save the Plastic Bag Coalition v. City of Manhattan Beach, S180720.  In 2008, the City of Manhattan Beach proposed an ordinance banning plastic bags in retailers.  A coalition of interested businesses notified the city that it would sue if the ordinance was passed without a full review under the California Environmental Quality Act (“CEQA”).  The city performed an initial review and found that while the use of other types of bags may have some negative impact on the environment, it would be very small since there were only 217 licensed retail establishments with the City that might use plastic bags and recommended adopting the ordinance.  Plaintiff sued for a writ to stop the ordinance.  The trial court granted the writ, finding that plaintiff had standing and raised a genuine environmental issue.  The Court of Appeal affirmed.  The Supreme Court ruled that plaintiff’s CEQA arguments were appropriate for a citizen suit, and plaintiff’s members possessed the direct, substantial interests required to seek a writ of mandate.  However, the Court found the writ was inappropriate because the city had the right to issue a negative declaration if it found “no substantial evidence… that the project may have a significant effect on the environment.”  Given the scale of the impact from the ban, Manhattan Beach acted within its discretion to pass the ordinance banning plastic bags.  This offers a clear approach for other local governments to follow in enforcing their own environmental ordinances.  I wouldn’t be surprised to see proactive communities through out California move to ban plastic bags and other products that are considered nuisances and environmentally undesirable.
  • California Grocers Association v. City of Los Angeles, S176099.  In 2005, the City of Los Angeles adopted an ordinance that grocery stores larger than 15,000 square feet owed certain duties to employees for a 90-day period after a change of ownership.  Plaintiff filed a complaint seeking to enjoin enforcement of the ordinance based on the theory that it was preempted by state and federal law.  The trial court enjoined enforcement of the ordinance and a divided Court of Appeal affirmed.  The California Supreme Court held that a worker retention ordinance does not intrude on matters of (1) health and safety already regulated by the state, (2) collective bargaining covered by federal law, or (3) equal protection clauses under both state and federal law.  In his dissent, Justice Grimes found that the ordinance preempted the National Labor Relations Act because it impacted the collective bargaining process by controlling an employer’s ability to hire and fire employees.
Filed in Business, California, Employment Law, Notable Decisions/Settlements/Verdicts | | Comments (0)