Archive for the ‘Shanti Michaels’ Category

Discrimination based on pregnancy is illegal.  These days, a number of factors are making pregnancy discrimination and the rights associated with an employee’s pregnancy more relevant than ever.  Women are more likely to work while pregnant.  About 66 percent of first-time mothers between 2006 and 2008 worked during their pregnancy, compared with 44 percent in the early 1960s.  First-time mothers are working later into their pregnancies than before.  About 88 percent worked into the last trimester, while 65 percent worked into the last month of pregnancy.  Finally, eight out of 10 mothers who worked during their pregnancies returned to work for the same employer within a year of the birth.  About 7 out of 10 of these women returned to a job at the same pay, skill level and hours worked per week.  (Statistics from U. S. Census Bureau.)

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A recent article reporting on a default judgment against a Eureka business owner and its  employee shows why you should never ignore a lawsuit filed against you.

On August 18, the North Coast Journal published an article about a lawsuit filed last year after a fight broke out at Gabriel’s, an Italian restaurant in Old Town, Eureka.   Apparently, a waiter attacked a customer who may have been drunk or on drugs and who was combative.   The customer broke his ankle in the scuffle.   While the Humboldt County District Attorney had considered pressing criminal charges against the customer, no charges were ever filed and the customer instead sued the waiter and one of the owners of Gabriel’s for damages.  Last fall, he obtained a default judgment and now has filed a second suit adding several more defendants to the legal battle.  Read the article here.

A number of friends asked me about the case.  Their biggest questions had to do with the amount of damages awarded – a whopping $2.5 million — against an owner of Gabriel’s and the alleged attacker.   They were shocked at the large amount of damages when the plaintiff’s expenses only totaled about $36,000 and the defendants did not even put up a fight.   I explained to them the concept of default judgments.

Default judgments can be obtained when the defendant does not file a response to the Summons and Complaint in a lawsuit, or does not appear at the hearing.   Default judgments may be set aside or vacated by the court at the request of the defendant for reasons such as mistake, inadvertence, surprise, and excusable neglect.   (See California Code of Civil Procedure sections 473(b), 476(d) and 473.5.)  However, if a judgment is not set aside, it can be enforced by court actions such as the attachment of wages or assets.

From a plaintiff’s perspective, without commenting on this particular case, a lawsuit is a question of enforcing one’s rights.  The reason the damages were so high in the restaurant case may in fact be BECAUSE the defendants did not fight back.  The law is an adversarial, two party system.   If defendants do not appear in court, the plaintiff does not have the opportunity to seek a remedy.   Obviously, if defendants do not show up in court, they also do not have the opportunity to present a defense and it is not the judge’s job to do it for them.

Default judgments are not a plaintiff’s dream outcome by any means.  There are a number of escape hatches for defendants to get them set aside.  The number of escape hatches decreases with time, but there are some that are always available.   Furthermore, since plaintiffs can be limited in their recovery by what they ask for in a default judgment, defaults cannot replace the right to a trial by jury.

Whether you love jury duty or hate it, starting in January, judges must advise that you decisively cannot text or tweet about it.  California Governor Jerry Brown signed a law last week requiring judges to admonish jurors that they are prohibited from conducting research, disseminating information, and conversing via electronic and wireless communications.  2011 Cal. Legis. Serv. Ch. 181 (A.B. 141) (WEST).  The risks for bias or confusion of the issues are simply too high.

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Abogada Que Habla Español:  Spanish Speaking Attorney Shanti Michaels Serves Spanish Speakers in Humboldt, Del Norte, and Trinity Counties

There are over 34 million Spanish speakers nationwide and California has more non-English speakers of any US state, according to the US Census Bureau .   Many of these people are Spanish speakers seeking effective legal assistance for issues including personal injury, criminal defense, employment, and other legal matters.  Non-English speakers frequently make behavioral modifications to conduct their daily activities: asking a friend or child to interpret at a doctor appointment, handing over a greater sum of cash when making a purchase so as not to need to understand the amount due, or pointing instead of asking for directions.  With time, non-English speakers learn to communicate simple ideas.  Hiring a lawyer is another story.

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May was Bike Awareness Month, with crowds of people gathering in Eureka and Arcata for bike to work rallies on designated bike to work days.  In a timely proposal, the City of Eureka is also considering installing striped bicycle lanes on Harris Street, providing additional bicycle friendly streets, but reducing the number of parking spaces available on Harris.  The Parking Place Commission will be discussing the issue at their public meeting in City Hall this Thursday (June 9, 2011, 4:40 p.m.).

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In general, the extension of credit is not a right and you may be denied credit even with a strong credit report.   However, where you suffer damages based on what you think may be a violation of the law, you should consider consulting an attorney about your rights.  A variety of laws protect consumers’ credit standing and against identity theft.  The primary federal law is the Fair Credit Reporting Act.  In California, additional state laws may amplify protection of individual credit records.  If your rights under the fair credit reporting laws are violated, you may be able to sue for monetary damages in federal or state court.

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The U.S. Department of Health and Human Services’ Office for Civil Rights finalized its finding this month that a physicians’ group violated the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The agency has imposed a monetary penalty of $4.3 million for the violations, representing the first monetary penalty issued by the agency for violations of the HIPAA Privacy Rule.  The increased penalty amounts were imposed under Section 13410(d) of the Health Information Technology for Economic and Clinical Health (HITECH) Act, which took effect in October 2009 and was intended to supplement and help enforce HIPAA.

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On January 5, 2011 California Supreme Court Justice Carlos Moreno announced his planned resignation to Governor Jerry Brown, who must now appoint a replacement justice after Moreno leaves his post on February 28.   As reported in a story in SF Gate, Moreno stated that the Governor’s victory gave him some comfort about who his replacement might be.   He also stated that he may work in alternative dispute resolution or perhaps at a private law firm.

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Text messages are becoming an increasingly common form of communication, even in remote areas like Humboldt County, and this can have a profound effect on both civil and criminal lawsuits.  “Smart” phones and overall increases in phones’ data capacity are creating both headaches and treasure troves for litigation attorneys.   As a cell phone user, you should know that if you are thinking of filing a lawsuit, or may have to defend against one, your text messages could be available to the opposing party and/or the court.  This may even include messages you have deleted from the phone.

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In late May, the Internal Revenue Service adopted a new position regarding taxation of registered domestic partners in its Private Letter Ruling 201021048 (the “PLR”).   See Pender, Kathleen, “IRS adopts state domestic-partner property law,” San Francisco Chronicle (June 3, 2010) available at SFGate.com.   Previously, the IRS did not apply California community property principles to registered domestic partnerships in terms of federal tax law since “[t]he relationship between registered domestic partners under the California Act is not marriage under California law.”  See IRS Chief Counsel Advice 200608038.

However, now the IRS will treat the income earned by California registered domestic partners as community property income for federal income tax purposes.   This means that each partner must report to the IRS one half of the total income earned between the two partners, not just his or her separate income.   While this does not change the format in which the domestic partners must file their California state taxes, it may have significant federal tax benefits for partners with very disparate incomes.

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