Common Legal Mistakes in Transactions

Clearly,  many of us go about our lives without making legal mistakes. Fortunately, many of us never incur legal problems. However, that should not create a false hope in our mind to ignore the fact that legal issues can arise and we have the power to avoid legal mistakes in our transactions, whether routine or once in a lifetime.

It is not very different than a person who has a spare tire in his/her vehicle, but has hardly used the tire or never used it. It makes good sense to periodically have our tires checked for air [and certainly, the spare tire]; in fact, tire manufactures and safety proponents recommend replacing tires after a certain period of time because the rubber and material that comprise tires wear out, even if there is still plenty of tread remaining on a tire [some recommend replacing a tire after six years, while others make the recommendation after eight years).  The same analogy can be made for purchasing home or renter’s liability and fire insurance. Some of us have purchased fire insurance for 10, 20 or even 30 years, yet never had the misfortune of having a fire; yet, there are very few of us  who do not have fire insurance.

If we do nothing to prevent problems and/or fail to realize the expectations in our daily transactions these situations can result in legal mistakes at best; but at worst, they can be the basis of a lawsuit. For example, one may forget the critical importance of having a detailed written contract when having a home remodeled, or when entering into other verbal agreements. However, enforcing our agreements and realizing our goals in many of our transactions can be a challenge if adequate consideration is not given to the scope and purpose of our agreement(s) and the unintended consequences. Moreover, it is hardly a mistake for a business, vendor, contractor, or sales person with whom one enters int a transaction to set forth the least amount of information. Whether this is deliberate or simply a result of being in a hurry or carelessness, we can describe the result as a legal mistake. Sadly, there can be one or more common omissions that are critical to an agreement, whether verbal or written. In this regard, you should consider the importance now and in the future to have a transaction spelled out in full in a written agreement, particularly crafted both in your favor [rather than the third person or business] and with the most number of details as possible.

When you contemplate or are about to enter into a transaction or an agreement, the first step is to have a clear plan of action. This includes making an itemized list of what you desire, along with what you expect to be performed, each of which to be included in the transaction, oral agreement or written contract. Then, you should request each and every one of those important items, facts, services and the steps or process to be used, to each be spelled out in writing, thereby becoming the important content of the agreement. From a legal standpoint, these are often called specifications, details, technicalities, terms and conditions, etc.  Avoiding legal mistakes in the transactions we enter into can not only save us money, but avoid disappointments and heartache.

 

Safeway Grocery Settles Claim of Employee With Disability

On November 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) reported a settlement regarding a food services employee on disability leave for a job injury at Safeway Grocery.

Initially Safeway followed the law, Americans with Disabilities (ADA), which requires employers to reasonably accommodate employees with a disability; as such Safeway allowed the employee to work in a different position that did not require heavy lifting as she did in her previous assignment. However, Safeway unilaterally decided to place the employee on unpaid leave indefinitely, making the argument that the employee had exceeded what they deemed an allowable time lime and, therefore, could no longer enjoy the position with modified duty.

The Federal Disability Lawsuit was settled by Safeway because of a legal discrimination claim brought against it. The requirement of reasonable accommodation includes, but is not limited to, the employer reassigning an employee with a disability to another position, unless it can be established this would cause a significant expense to the employer and/or substantial difficulties associated with the same. There is no time limit provided the employee has a qualifying disability.

For additional information on employee related issues, you are invited to view our web site at www.spitalaw.com

Is There Gender Bias in The Movie and TV Industries?

On May 11, 2016, the Los Angeles Times reported a story relating to a previous request by the American Civil Liberties Union for the U.S. Equal Employment Opportunity Commission to investigate a pattern and practice of gender bias in the hiring of primarily male film and TV directors, and more recently to include producers, actors studio executives and agents.

The ACLU had referenced a University of Southern California study in which less than 2% of directors of the 2013 and 2014 top-grossing films were women. The LA Times reporter noted there were nearly a combined 50 new films announced for 2018 by Paramount Pictures and Twentieth Century Fox in which there was not even a single women director. Certainly, these statistics are quite telling, regardless of your position on the subject.

The challenge for the EEOC, and the filing of a civil law suit against and/or mediation involving this industry is complicated by the fact there are a great number of individuals in the hiring process, such as the Directors Guild of America, producers, agents, managers and studio executives.

 

CALIFORNIA SUPREME COURT RULES EMPLOYER MUST PROVIDE SEATS FOR EMPLOYEES

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

  1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
  2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
  3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

 

Is a University Liable for Violence on the Campus?

The California Court of Appeals was scheduled  to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and  inhumane have become a national scourge.

Women in the Legal System – As a Judge or Judged as a Lawyer

In a recent study published on June 10, 2015, in the Social Science Research Network, the authors look at the significance of male and female participants as judges and litigants in the legal system. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616502

The authors noted they evaluated empirical data to determine to what extent a male or a female lawyer obtained a better result in front of a male panel of judges. Their research substantiated that female attorneys generally did better than their male partisans in cases heard before an all-male panel of judges; and, male attorneys tended to fare better before a mixed-gender panel hearing the case. In other words, female litigants tended to obtain a better result in front of an all-male panel of judges, and a mixed-panel of judges seemed to be more favorable to male litigants than an all-male panel.

After reading the study referenced herein, perhaps it will offer additional insight into the important question to what extent gender bias impacts the decision making process in our judicial system. In reality, there is the human side of being a judge and, therefore, judges bring their own predilections to the bench as do the majority of all of us when presented with issues &/or narratives. Many commentators will contend the difference is that the goal of judges, among other things, is to be totally objective and unbiased.

Are Contractual Jury Trial Waivers Valid?

On April 16, 2015, in the case of County of Orange vs. Tata Consultancy Services, Ltd. et al, Case #14-72343, the United States Court of Appeals For The Ninth Circuit granted a Petition For Writ of Mandamus from the U.S. District Court (Southern District), and in the facts of this case held unenforceable a jury waiver provision in a contract that was not expressly authorized by statute under California law even though a voluntary and knowing pre-dispute contractual waiver is valid under Federal law.

Since it is not uncommon because of economic factors for lawyers who draft contracts to provide for a waiver of the right to a jury otherwise guaranteed by the Seventh Amendment to the U.S. Constitution and Section 6 of the California Constitution, this opinion will likely have a significant impact when a party waives a right to a jury trial that is not otherwise authorized by Civil Code section 631.

In general, contracts that provide for arbitration in lieu of a jury trial, however, are enforceable as long as a legally proper and complete waiver is set forth therein.

Intoxicated Passenger Unable to Collect from Taxi Service

A taxi company and its driver were sued for wrongful death (negligence) when a passenger who was intoxicated exited the cab, and then within a half an hour walked into heavy traffic and was killed by a drunk driver.

On March 11, 2015, a Santa Barbara Court jury concluded the decedent’s mother could not collect even though the municipal law required a taxi driver to  allow a passenger to exit only at a curb.

The Plaintiff’s lawyer argued the taxi cab was a common carrier and owed a higher standard (duty) of care to ensure the safety of its customers. The outcome was not based upon a lack of negligence by the defendants, and/or any one of them, however, but their neglect was deemed not the proximate cause of the death of the passenger. In other words, the conduct was not a substantial factor causing the death of the passenger in both time and location.

It is noteworthy that the 78 year old driver of the vehicle that struck and killed the victim was arrested and charged with felony hit and run. His blood alcohol was three times the legal limit, he entered a guilty plea and was sentenced to one year in the County Jail and three years’ probation. His insurance carrier paid the family who settled for policy limits of $30,000.

The case is:  Quintanar v. Absolute Cab LLC., et al. (Santa Barbara Super. Ct., originally filed May 13, 2014).

 

If You Have a Professional License, When Should You Obtain Legal Advice?

If you  receive a Citation or Notice of Violation for a crime and/or are arrested, you need to obtain legal advice immediately. Moreover, your concerns are far greater than your driver’s license. When you have a professional or occupational license, your career is at stake. Not only would it be reasonable to worry about losing your driving privilege, whether a few months or a year, you should not gamble on the outcome when your entire career is at stake. For those who do not have a professional or occupational license, it is wise to think ahead inasmuch as sometime in the future one may desire such a vocation or occupation. There are about 45 or more state licenses, and for the most part there are no statutes of limitations to prevent the government from using an arrest and/or a conviction to deny such a license. Think beyond today and as far as 5, 10 or even 15-20 years from now when you may have different aspirations  or even a second career.

It is easy to find an attorney who handles a variety of legal matters, and there are many who boast they know licensing law. Preferably, one should pay more attention to the lawyer’s credentials than where he may be located in the State of California and/or whether you can obtain legal advice or representation for a smaller sum of money. It is irrefutable that an attorney who argues the obvious and charges less money is going to do less work.  This is vastly different than a lawyer who places more importance on leveling the playing field; is passionate about obtaining a winning result; is a leader in the profession; has a consistent and proven record;  goes to painstaking lengths and is meticulous about establishing an effective defense and offense;  and is one to whom other lawyers seek advice and endorse as a distinguished attorney handling administrative law cases. Also, read the client reviews and compare the nature and  number  as this too may help in deciding how to proceed.

In the case of some matters, the state licensing Board or Agency may investigate a case before an arrest, such as when one is terminated or resigns from their employment and/or there is a complaint about one’s fitness to practice their chosen profession. In other cases, one may be prescribed certain drugs and narcotics that causes him/her to be suspected of having a physical or mental illness. This can even result in a forced physical or mental examination, as well as an Interim Suspension Order preventing one from working. There are countless types of cases that are investigated by the State Boards, Departments and Bureaus.

Lastly, if one is arrested for a certain type of offense, the Board may offer a Diversion Program and/or simply seek to have a meeting or interview you. Regardless how innocent you may feel or  meritorious the claim might be, contact an attorney who focuses his practice on the area involved or subject matter;  do so without delay or you risk a public Accusation filed against your license, and potentially the exposure of a criminal or civil case filed against you.

 

California Courts and Courtrooms Closing

Due to severe budget cuts of the Judicial Branch of Government, a huge number of courts  and courtrooms in approximately 29 counties throughout California have closed, and some have had severe reductions in services. The Judicial Council of California has reported that over 50 Courthouses and over 200 Courtrooms have been closed as a result of past and ongoing cuts of the Legislature since 2008.  The impact is huge since it hampers the opportunity for timely, effective and meaningful access to justice. This impact has negatively affected the Criminal, Civil and Family Courts statewide. It is reported that this massive problem affects about two (2) million California residents. Because it will undoubtedly only get worse, it is critical that the Legislature restore the funding to our court system.

What strains credulity is the extremely large increase in tax revenue during the most recent years are  in the hands of the Legislature and Governor, while most of us hardly ever give much thought to the billions of dollars collected, administered and disbursed. That is why some commentators opine that government keeps getting bigger in nearly every other area when a free society needs to uphold the rule of law. Our judicial system is the place where disputes can be resolved and laws can be enforced and/or challenged in a rational manner with evidence and thru the eyes and ears of an impartial judge or jury.  Although the Lady of Justice is depicted as blindfolded with a scale to weigh the facts and circumstances in an effort to balance truth and fairness, the demeanor of the parties and witnesses is a critical component viewed thru the eyes of all those present in the courtroom.