SECRETLY RECORDED CONVERSATIONS ADMISSIBLE IN CRIMINAL CASES

On December 5, 2019, in a unanimous ruling, the California Supreme Court in the case of People vs. Guzman, declared prosecutors can use secretly recorded conversations and they are, therefore, admissible in criminal cases. This decision does not change the illegal status of secretly recorded conversations that are inadmissible in civil cases. Pursuant to Penal Code section 632, it is illegal to secretly record a private conversation without the express consent of the other person.

The California Supreme Court followed a line of cases that extended the principles set forth in the ballot measure entitled Proposition 8, passed by California voters in 1992, referred to as Marsy’s Law or the Victims’ Bill of Rights Act, which among other things, sought to allow all relevant evidence in a case to be admitted into evidence in a criminal preliminary hearing and criminal trial. In reaching its conclusion, the Court rejected the argument by the defense that such a ruling would violate the defendant’s right to privacy.

Check Your Auto Insurance Policy Coverage

If you have not recently checked your automobile insurance policy and coverage page, this is a good time of the year to review your benefits (and the limitations or exclusions). Notably, automobile insurance rates are set primarily by a driver’s safety record and their annual miles driven. The following is for INFORMATIONAL PURPOSES ONLY, and not intended as legal advice.

1. B.I.  this is Bodily Injury. In other words, your LIABILITY COVERAGE that pays a THIRD PARTY for his/her personal injuries caused by you. In discussing your policy with your insurer, you want to decide whether the BI limits are “enough” to cover the possible value of any claims that might be made against YOU, now as well as later, to protect your assets now and in the future, including but not limited to all the money you have, real estate,  stock, valuables, retirement funds, etc. Err on the side of caution because after a lawsuit is filed and a  judgment is ordered against you, it is good ten (10) years, and can be renewed every ten years thereafter or it will expire. CA Civil Procedure Code § 683.110 (2018).

2. P.D.  this pays a third party for property damage, including the lower of the cost of repairs to or replacement of their car, caused by you; remember, you need enough to cover the possible value of cars today [and the reasonable future during the period of coverage you are purchasing] that may be damaged as a result of an accident.

3 & 4. BOTH COMPREHENSION and COLLISION WITH LOW DEDUCTIBLE.  it is important to choose a practical dollar amount, and not just because it is more affordable. Each of these are often an optional coverage, but are recommended !!

“Collision” coverage pays YOU for your own car’s damage if caused by you; the third party has no insurance OR their insurer claims you are at fault (in full or part) and you want you car repaired or to collect damages to any part of your car at the outset.

“Comprehensive” covers theft, vandalism, glass and windshield damage, fire, accidents with animals, weather/acts of nature, etc. to YOUR vehicle.

5. UNINSURED MOTORIST (UM) AND UNDER-INSURED MOTORIST (UDM).  these pay YOU for your injuries if the at-fault third person has no insurance. In some states, these may be optional coverage, but they are highly recommended because there are far too many individuals who do not have insurance, yet cause harm and damages to others who are, and you who may not be, “not” at-fault.

6. UNINSURED P.D (UMPD).  this pays for YOUR car damaged if the at-fault third party has no insurance. In some states, this may be an optional coverage; however, it may not be necessary if you have collision insurance, which also pays for damage caused by another driver without coverage or insufficient coverage.

7. RENTAL. consider the daily amount YOU would need to pay to get a rental car if the at-fault third party has no insurance, or a rental vehicle is needed when an accident was a result of your mistake or negligence. This is often optional coverage but many individuals consider it worthwhile.

8. MEDICAL PAYMENTS. commonly referred to as “MedPay,” this is optional coverage; however, it has the benefit of paying for the care and treatment of passengers, and you, in your vehicle who are injured as a result of a vehicular accident, regardless of who is deemed at fault. In addition, it will pay for your family and your medical bills if struck by a vehicle, even if on foot or in another individual’s vehicle.

9. UMBRELLA POLICY. these policies cover all losses whether from your car, boat, motorcycle, in your home, etc. YOU should read your coverage and determine whether you have this because it is beneficial and some even have special additional coverage. These policies are issued in amounts starting with $1 million; $2 million; $5 million, and more. They are actually inexpensive when considering the amount of coverage one is purchasing. However, these policies require a minimum dollar amount of LIABILITY coverage in the underlying auto, home, and other policies, such as $500,000. This too is optional coverage, but highly recommended !!

 

Minimum CALIFORNIA COVERAGE, but for most individuals it is considered to be “totally” INADEQUATE [see information set forth above]:

  • $15,000 for injury/death to one person.
  • $30,000 for injury/death to more than one person.
  • $5,000 for damage to property

Price is not the only criterion when choosing (auto) insurance. You want the insurer to be a really good company with a reliable track record of settlements when claims are made so that payments are processed without excess delays.

Voidable Employer Agreements

A “voidable” agreement is one that may appear at the outset to be capable of being enforced, however, it can thereafter be attacked, invalidated, nullified, deemed not binding, void and unenforceable. In contrast, a “void” agreement from the beginning cannot be legally enforced.

On October 13, 2019, the governor signed Assembly Bill 51, to be effective January 1, 2020. Pursuant to this new legislation and thereafter, a California employer may NOT condition pre-employment, a promise of continued employment, &/or the receipt of any employment related benefit or additional compensation, on an employee giving up her/his right to pursue a legally enforceable claim, such as that which can be brought under the California employment discrimination law, and certain other employment laws in full or part, in any administrative or court proceeding. The new law says that any agreement that conditions employment on agreeing to arbitrate employment related disputes is unenforceable.

Hence, any existing contract or agreement that is modified or extended, on and after January 1, 2020, in which an employer requires an employee to waive the right to bring a claim in the court system, and not exclusively by arbitration, must be a matter of actual voluntary consent, and not by signing an agreement that is tantamount to coercion. It is likely that when an employee has a genuine choice, (s)he will not agree to bind themselves to arbitration in advance.

Those in support of past mandatory arbitration clauses in agreements claimed it saved the parties time and money and, therefore, was less expensive, more efficient, and necessary for employers to resolve disputes through arbitration and not in the (overburdened) court system.

On and after 1/1/20, a major issue that arises in the enforcement of an arbitration provision of a contract or agreement is whether both sides in a dispute agree to this method of resolving a dispute after the dispute arises, and the parties then have an opportunity to evaluate their individual rights and own best interests for resolving a claim or dispute. This is another way of requiring an arbitration agreement to be entered into knowingly and voluntarily, and not as a condition of employment. 

Notwithstanding the above, Assembly Bill 51 raises an issue whether its applicability is invalidated, &/or is otherwise unenforceable because it is in conflict with the Federal Arbitration Act [FAA]. In this regard, the U.S. Supreme Court has held the FAA bars a state from passing a law that rejects, limits or marginalizes arbitration agreements. Because a state law cannot conflict with federal law, therefore,  the applicability of California AB 51 will be subject to legislative amendment, and/or potential court action by one or more employee unions, a class action lawsuit, etc.

In summary, the conclusion one can reach from AB 51 is that arbitration agreements are “voidable,” but not necessarily or automatically void.

 

 

Independent Contractor or Employee?

On September 18, 2019, California Governor Newsom signed into law Assembly Bill 5 that establishes  the minimum requirements to be classified as an “Independent Contractor;” otherwise effective January 1, 2020, these individuals will be deemed employees with all of the rights and benefits typically afforded to workers. The background for the new law stems from the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018).

This new legal standard mandates a three-prong test [the criteria], as follows: (1) the worker is free from the control over how to perform his/her services; (2) the tasks, job or services are outside of the usual and customary activities of the business; and (3) the worker is engaged in an independent and established workplace. The burden of complying with these requirements is on the employer [business entity], and if not, the worker has to be classified as an employee. Essentially, a worker is presumed to be an employee unless the business entity can establish it has met the three criteria above. Moreover, the U.S. Court of Appeals in the case of Vazquez v. Jan-Pro Franchising International, Inc. held the Dynamex decision to be applicable retroactively; this places an additional burden on employers for any claims that are made by workers for services they performed prior to the April 30, 2018 decision in the Dynamex case.

There are exceptions for certain fields of endeavor; however, that is beyond the scope of this blog and, if additional information, guidance or legal advice is desired, one should consult with an “Employee Rights Attorney.”

FETAL TISSUE RESEARCH

Recently, the National Institutes of Health (NIH) issued restrictions on obtaining research grants using “fetal tissue” in order to qualify for federal funding.

It is important to note that “fetal research” is generally research that is performed using living fetuses either inside the uterus (in utero) or outside the uterus (ex utero). However, fetal research can also include embryos, which is the earliest stages after fertilization of an ovum by a sperm. In addition, the techniques can be invasive and noninvasive. Most importantly, the outcome has resulted in improved techniques of both in-vitro fertilization and embryo transfer, as well as major advances in the diagnosis and treatment of conditions that threaten the survival of fetuses and pregnant women.

On the other hand, “fetal tissue research” involves cells that are removed from dead fetuses to establish, among other purposes, cell lines or for use as transplantation material. These fetal tissue are obtained from an abortion, either elective, induced or spontaneous (natural). When fetal cells are cultured, they grow and multiply in laboratory dishes. These cells are used to test the efficacy of a drug and whether it causes damage to genetic material or to test the impact of infection. Because the cells continue to grow and multiply, a small number of cells can result in a huge quantity and thereby used as a source of more cell lines or for transplants. “Fetal tissue transplantation” has been more controversial because of legal, ethical and social issues, including the ownership of embryos.

In the 1950’s, fetal tissue research and the use of fetal cell lines produced a major medical breakthrough, the development of polio vaccine.  However, the earliest known use of fetal cells for transplantation occurred when a group of physicians transplanted fetal brain cells into a patient with Parkinson’s disease, which is a progressive disease in which cells degenerate and die. Since that time, many of the human experiments have been done outside the United States, seeking to determine whether transplanting fetal cells can reduce the effects of, if not ultimately cure, a variety of diseases, as well as neurological and blood disorders, including diabetes.

These newest restrictions will require all applications and renewals of grants to perform research that involves tissue collected from elective abortions must provide a detailed justification, documenting why no alternative methods could accomplish the same goals.  In addition,  there must be documentary evidence each woman who is involved first gave permission for her aborted fetus to be donated for biomedical research. Furthermore, the restrictions prohibit graduate and postdoctoral students who receive NIH training funds from “proposing fetal tissue research.”

This subject  remains highly controversial.

Opinions are polarized and naturally emotional, they continue to focus on highly charged religious, ethical, legal and social grounds. Those scientists in favor of fewer restrictions on fetal tissue research claim their studies with mice implanted with tissue from aborted fetuses have proven results, helping to better understand certain diseases as well as to develop therapies for cancer, HIV,  Parkinson’s disease, and the Zika virus.

Opponents argue stem cell research will take place on foreign soil if the ability of scientists to obtain NIH funding is limited. Others contend fetal tissue still needs to be harvested since the only way to make a comparative presentation requires a scientist seeking an NIH grant to document the lack of effective alternative research methods.

DOCTOR’S DISCLOSURE ON PROBATION

On September 19, 2018, our former California Governor Brown approved Senate Bill No. 1448 into law. It is effective July 1, 2019.

Under the current laws, the Medical Board of California issues licenses to, as well as regulates and imposes discipline upon physicians and surgeons. Similarly, there is the Osteopathic Medical Board of California, State Board of Chiropractic Examiners,  Naturopathic Medicine Committee, Acupuncture Board, and the State Board of Chiropractic Examiners that also perform the same functions for their respective applicants and licensees.

Beginning July 1, 2019, and pursuant to Business and Professions Code Section 2228.1 et sec., each of the above professional licensees are required to disclose to each patient, their guardian or health care surrogate, before their first visit if they have been placed on probation on or after July 1, 2019, involving four(4) categories of misconduct, as follows:  criminal conviction involving harm to patients; sexual abuse, misconduct, or relations with a patient; drug or alcohol abuse causing harm to a patient or when such use impairs the ability to practice safely; and inappropriate prescribing that results in patient harm and having been placed on probation for five or more years

The disclosure must set forth the following: (1) the licensee’s probation status; (2) the length of time of the probation; (3) the end date of the probation; (4) all of the practice restrictions or limitations placed on the licensee by the State Agency;  (5) the Agency’s telephone number; and, set forth (6) how the patient can find further information regarding the probation on the Internet Web site

In addition, the respective licensees must obtain from each of their patients, or the patient’s guardian or health care surrogate, a separate and signed copy of the disclosure.

There are some exceptions, such as a situation in which a patient was not known to the doctor until immediately prior to the start of the visit, their guardian or health care surrogate, is unavailable, unconscious or unable to comprehend and sign the disclosure; the visit is unscheduled; occurs in an emergency room; an urgent care facility; and includes consultations in inpatient facilities.

This landmark new law commonly referred to the “Patient’s Right to Know Act” is the first in the nation to require doctors to tell their patients if they are on probation. It provides an additional means by which a patient can learn of their physician’s disciplinary record, if any.

Restrictions on State Agencies From Utilizing Convictions and False Statements

Effective July 1, 2020, AB 2138 becomes operative as law in California (approved and signed by the Governor 9/30/18), as follows:

Under current law, the licensing and regulation of various professionals and occupations fall within the Department of Consumer Affairs. These state agencies are empowered to take disciplinary action against a licensee, including to deny an applicant a license, or suspend and/or revoke an existing license or on various specified grounds, including but not limited to one having been convicted of a crime. However, they cannot take any such action in the case of a felony the defendant has obtained a certificate of rehabilitation, and/or the person has been convicted of a misdemeanor if (s)he has met the applicable agency requirements of rehabilitation.

In addition, each agency has been mandated to develop objective criteria to consider regarding a denial, suspension, or revocation of a license to determine whether a crime is substantially related to the qualifications, functions, or duties of the business or profession as well as the criteria to evaluate the rehabilitation of any such individual or business.

The above referenced new law places restrictions on a State Agency in denying, suspending or revoking a license to those cases in which the criminal conviction took place within the preceding seven (7) years from the date of application. Moreover, an individual cannot be denied a license based upon the underlying acts surrounding the conviction if the conviction was dismissed or expunged; the individual has provided evidence of rehabilitation; the person was granted a pardon or clemency; or if an arrest resulted in a disposition other than a conviction.

Current law gives a State Agency the authority to deny a license on the grounds that an applicant knowingly made a false statement of fact that is required to be revealed in the application for a license. However, the new law prohibits an agency from denying a license because of false statements made in an application solely on the failure to disclose a fact unless the disclosure of the fact itself would have been cause for denial of the license.

Some have opined this law should have been enacted long ago; and, it should have been made effective July 1, 2019 rather than 2020.

Important Choices To Preserve Humanity

President Harry Truman, on April 11, 1952, signed into law a bill that proclaimed the National Day of Prayer. Thereafter in 1988, President Ronald Reagan amended the law designating the first Thursday of May each year as the National Day of Prayer. While it is not a public holiday, there are countless prayer gatherings across the United States, many of which are non-denominational.  As we all know, these are troubling times when we read about or view news accounts of horrific crimes and mass killings, hate mongers, widespread and highly polarized dissension, along with an increasing number of individuals who can be classified as morally bankrupt and/or lawless, lacking integrity, respect and appreciation of others. The new reality has brought forward the adage (click this link), “If we see something, say something.

Nonetheless, all of us need to underscore the world is a magnificent place and people are basically good, even though there are exceptions which are often characterized as the new norm. Aside from what solid values, positive attitudes as well as divergent ideas, opinions and religious beliefs can bring to humanity, we need to have healthy relationships and strong support systems. We can make important choices to preserve humanity in today’s world,  and make all of our lives better.

Let us start by smiling (click this link), as when it comes from the heart, it can be priceless.  And, if you are not used to or feel comfortable smiling, try to think of a good reason to do so in a genuine way. The social value of a smile is that it shows we are likeable, happy and content. A smile is our gift to others, but most importantly (click this link), smiles are infectious for those in our surrounding to feel important, and appreciated. In addition, smiling can improve our own mood and, therefore, increase our positive thoughts and feelings.

Taking this one step further, we have all heard that “laughter is the best medicine.” And, studies have shown (click this link to read) how laughter can be powerful, referencing among other consequences, happier individuals live longer. In contrast to a “toxic” life filled with, among other emotions,  stress from negativity, exposure to violence, and/or loneliness,  positive thinking can produce a healthier and happier life.

Rabbi Dorsch of the Tifereth Israel Synagogue in San Diego was interviewed by KGTV Channel 10 News on Sunday, April 28, 2019 in response to the horrific killing at a local synagogue was quoted saying (click this link), “We have to give one another hugs and say we are not going to let this destroy us.” There has been a great deal written, considered highly effective and adopted by therapists that hugs have a synergistic effect (the whole is greater than the parts, or 2+2 =5 or 6), including the famous author and psychotherapist Virginia Satir, who is is a pioneer in the messaging value of hugs in family therapy and quoted in “10 Reasons Why We Need at Least 8 Hugs a Day” (click this link).

In conclusion, all of us can provide to others, and realize for ourselves, happiness, along with innumerable social and health benefits from a smile; and smiling can turn into laughter, which in and of itself is worth celebrating. Let’s not be part of the problem, but part of the solution, as we take each step today and forever. We can indeed make important choices in today’s world to preserve humanity, one person and one day at a time.

Exceptional Attorney and Essential

There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

The Future of Healthcare Technologies and Interoperability

The U.S. Department of Health and Human Services (HHS) has recently proposed new Rules in which the concept of INTEROPERABILITY will [continue to] increase the positive impact on our health system in general, and our own health care in particular, by utilizing electronic devices.

What does Interoperability mean? I will summarize it being a process by which different information systems using electronic devices &/or applications produce a resource that can optimally connect and use health data in a coordinated manner for the direct benefit of all of us, including health care providers.  Basically, it becomes the optimal method for diagnoses, tests and other data regarding each of our own health records to be shared for providers to appropriately know, assess and evaluate these facts to better treat any current and/or future patient medical issues. Clearly, these ongoing technological innovations will optimize the health and welfare of our population as a whole, and allow each of us to benefit by having access as well.

HHS Secretary Alex Azar declared: “These proposed rules strive to bring the nation’s healthcare system one step closer to a point where patients and clinicians have the access they need to all of a patient’s health information, helping them in making better choices about care and treatment.” For us, the advantage is a highly efficient system in which we will have access to all of our medical records, and eventually the processes to also assist in interpreting the data, thereby improving our health care.

Also, the proposed Rules will require healthcare providers to implement technologies to ensure patients have easy access to their information, along with the information being easily shared by other plans and providers with whom patients obtain follow-up healthcare, thereby preventing unnecessary and/or redundant procedures and testing….”giving clinicians the time to focus on improving care coordination and, ultimately, health outcomes,” as well as patients having “the tools to shop for and coordinate their own health care.”

Nearly everyone has heard of the iPhone, iPad, Mac Computers, iTunes, iCloud, etc.  Coinciding with the above technologies, Apple has also participated in the transformation of healthcare by developing its own Applications (Apps) for the operating systems in their iPhones and Apple Watch; you can view the online video when you click this Application link and then scroll down to “Watch the Video.”

Ratings and Reviews