In any California business with 5 or more employees, the law entitles a pregnant woman to accommodation based on her pregnancy or related conditions.  Still, many women feel the effects of discrimination.  The effects fall into several main categories including refusal to hire a pregnant applicant, firing or demoting a pregnant employee, denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave, and treating a pregnant employee differently than other temporarily disabled employees.

Pregnant California residents have the right to reasonable accommodations (for example, changing break schedules to allow for more bathroom visits or transferring the employee to a less strenuous or dangerous position during pregnancy).  With medical certification of the employee’s doctor, employers must accommodate a request for accommodation to the best of their ability.  When the doctor says that the accommodation is no longer medically needed, the employee also has the right to her old job back.

If you feel that you have been discriminated against based on pregnancy, you should contact an attorney today.

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.

One 2010 investigation exposed a potential juror in Los Angeles Superior Court had tweeted, “He’s guilty! I can tell!” while sitting in the jury pool.  The individual was selected for the jury, and the defendant was convicted.  In 2009, a San Francisco Superior Court judge dismissed 600 potential jurors because one admitted to researching the case on the internet.  In 2008, the foreman of a Ventura County jury posted details of a homicide trial, including a photo of the murder weapon, on his blog.  While the temptation to seek or post information can be great, there is great risk in doing so.

Just last week, the Janssen Law Firm wrapped up a civil trial against the county on behalf of its client, Elena Esquivel, who was attacked by a pitbull in 2008.   (View Times-Standard article.) Over the course of two weeks, jurors heard and saw evidence at trial including Facebook postings, descriptions of a parking lot in Mckinleyville, the vehicles used by local sheriffs and animal control officers, among other easily verifiable facts.

In the age of online mapping, social media, and picture text messages, jurors can more easily engage in prohibited behavior such as speaking about deliberations too soon, researching information on a case, using outside expertise in a particular field, publishing and accessing online information, or contacting parties, attorneys, or witnesses.  However, the various electronic mechanisms such as social networking sites or Wikipedia put at risk the carefully crafted cases that are exposed to juries after much thought by the attorneys and by the judge in the interests of justice.  As shown by Governor Brown’s recent legislation, jury instructions and courthouse policies on technology access are being forced to quickly evolve to control the instincts of modern jurors.

The jury instructions now required by California law would specifically target these areas.  Willful violation of the instructions will constitute a misdemeanor and therefore could be punishable with up to six months in jail.  One judge in England recently set an example by sentencing a juror to eight months in jail for chatting online with the defendant in her case, causing the trial to collapse, and costing the justice system millions.  (View article.)

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.

Language barriers aside, American lawyers spend years in school learning complex nuances and legal concepts that essentially amount to another language (often jokingly referred to as “legalese”).  When a lawyer speaks with clients or witnesses, he or she must describe ideas that the client or witness has never encountered, with words that make the client or witness feel comfortable with the legal situation.  This is already difficult in English.

To make matters worse, the very legal system that this “legalese” describes, the common law legal system, is not a structure that Spanish speaking countries generally share.  Most Spanish speaking countries have civil legal systems which are based on statutory codes alone and not judges’ interpretations of the codes or prior court decisions.  Thus, learning the Spanish words for legal terms is insufficient.  It is akin to learning translated words for the metric system.  Sure, it is nice to know the Spanish word for meter is “metro”, but Americans don’t use meters.  Similarly, a Mexican lawyer does not use the same legal tools as American lawyers.  Spanish fluency, Spanish flexibility, and legal knowledge are all important components to communicating with Spanish-speaking clients in California.

Shanti Michaels, an associate attorney at Janssen Malloy LLP in Eureka, is fluent in Spanish and has experience with legal matters in Puerto Rico — one of the few, if not only — Spanish speaking jurisdictions that utilizes aspects of the United States common law legal system. Ms. Michaels also has experience communicating with Spanish speakers from Mexico, Central America, the Caribbean, South America, and Spain.  As a result of her linguistic flexibility, fluency, and legal training, she provides Spanish speakers in the Eureka, Arcata, Fortuna, and Mckinleyville area with an attorney to call in times of legal necessity.

Shanti Michaels, abogada en el bufete de abogados Janssen, habla español y tiene experiencia en asuntos legales en Puerto Rico – uno de los pocos, si no el único – jurisdicciones hispanohablantes que utiliza ciertos aspectos del sistema legal de los EEUU. La Sra. Michaels también tiene experiencia en la comunicación con hispanohablantes de México, América Central, el Caribe, América del Sur y España.  Como resultado de su flexibilidad lingüística, su fluidez en español y su entrenamiento jurídico, ella ofrece un recurso para los que hablan español en el area de Eureka, Arcata, Fortuna, y Mckinleyville en tiempos de necesidad legal.

The discussion about bike lanes illustrates the predominant role that bicycles increasingly play in many commuters’ lives as gas prices continue to soar.  With the increase in bike commuters, and the unfortunate increase in fatalities and serious injuries to bicyclists, it is becoming more important that bicyclists know their rights.  Many cyclists do not know they have the same rights under the California Vehicle Code to occupy the roadway as does a motor vehicle.  When a cyclist is hit by a vehicle, he or she is often shaken up and not thinking of the important steps necessary to validate their positions in court later.  Here is a brief primer:

For both civil and criminal cases, the most important rule to remember is to document, document, document.  Get complete information about the driver and the vehicle involved in the incident and file a police report.  Get the contact information from every witness available and preserve all evidence you have available.

Contact an attorney before contacting the driver’s insurance company.  Know that there may be ways to recover for your injuries even if the driver is uninsured.  You should be aware there are deadlines for filing a claim so you should attempt to find legal assistance immediately.  If you decide to handle the case without the assistance of an attorney, be aware that court cases must be filed within two years and if a public entity is responsible, claims must be filed much sooner.

The Janssen Law Firm has represented numerous injured cyclists in litigation and otherwise.  Our lawyers and legal staff support and are Humboldt bicyclists: Mr. Morrison and Ms. Michaels often cycle to work while Mr. Crowley is a member of the Humboldt Bay Bicycle Commuters Association and paralegal Nancy Holmes McPartland celebrated bike to Work Day in Eureka this year.

A preliminary case under the Fair Credit Reporting Act is demonstrated by showing that you suffered damage because the credit reporting agency either willfully or negligently failed to comply with the Act.  Justin Baxter and Michael C. Baxter, 18 Causes of Action 2d 1 (Originally published in 2002.)  Such failure to comply includes (1) Furnishing a consumer report for impermissible purposes; (2) Failing to follow reasonable procedures to assure maximum possible accuracy; (3) Reporting obsolete information; (4) Failing to make mandatory disclosures; (5) Failing to conduct mandatory reinvestigation; (6) Failing to correct inaccurate or incomplete information; or (7) Failing to comply with the requirements relating to reinsertion of disputed credit information into the consumer’s file.  Id.

You have the right to know what is in your credit file.  The FACT Act, signed in 2003, has given individuals the right to obtain one free credit report each year.  It is a good idea to review the report carefully each year to ensure that you do not disagree with the information creditors are listing about you.  If you discover something is inaccurate or incomplete and you do nothing, you may waive your right to pursue a lawsuit later.

You must also be informed if your file has been used against you and your information cannot be dispersed for impermissible purposes.  Permissible disclosures include by court order, by your request, as part of a transaction involving employment, insurance, licensing, investment, or other legitimate business needs, or for the purpose of enforcing a child support order.  You further must give permission for certain disclosures, including disclosures to employers.

Information that reflects negatively upon your credit can often only be listed on the report for seven years, or ten years in the case of bankruptcy.

If you dispute any of the information contained in the file as incomplete or inaccurate, you have the right to, and should promptly report this to the reporting agency (Experian, Equifax, or Transunion).  The agency then has the duty to investigate and correct the information within 30 days.  They should also notify any potential providers of bad information (credit card companies, banks, etc.) of your dispute within five business days and the provider must also investigate your claim.  If these investigations are not carried out reasonably, you may be entitled to damages.

HITECH was passed to help enforce HIPAA.  These are federal laws that provide individuals with protection for their personal information disclosed in receiving health care.  Both laws are intended to protect patients’ privacy while allowing providers and other entities (like insurance companies) to effectively provide health care for the individuals.

Cignet Health, a physician group in Maryland, failed to provide 41 patients with copies of their medical records.  As regulations passed in October 2009 under HITECH allow for a minimum fine of $100 per patient per day (penalties used to be capped at $100 per patient per day), this added up to a penalty of $1.3 million.  In addition to the $1.3 million, Cignet Health was fined $3 million for refusing to cooperate in OCR’s investigation.

These circumstances are somewhat unique because of the egregious conduct of the physicians group.  However, as it is an attorney’s duty to recite the “better safe than sorry maxim.”

So, what does this mean for Humboldt County medical providers?  Because this is the first matter of its kind, it is still not clear whether the Office for Civil Rights will be much more diligent in imposing actual monetary remedies or whether it will continue its more common practice of entering into Resolution Agreements.   Find more information about Cignet Health and the civil penalty imposed here.  What is clear is that it is important to exercise diligence in complying with HIPAA and other privacy laws.  Every entity covered under HIPAA, medical providers, doctors, insurance plans, or otherwise, should ensure that at least one employee is tracking the requirements under the law and implementing protective measures with diligence.  This includes both traditional methods of privacy protection such as locking file cabinets as well as evolving issues relating to electronic medical records and electronic databases.

But finding an adequate replacement for Moreno could be a difficult task, especially at the beginning of Governor Brown’s term.  As the son of Mexican immigrants, graduate of Yale and Stanford Law School, and candidate for the US Supreme Court under Obama (See New York Times article on Justice Moreno).   Moreno has been an important voice for liberal interests.

Moreno authored a decision preserving consumers’ rights to bring class action lawsuits against corporations. See In re Tobacco II Cases (2009) 46 Cal. 4th 298. He dissented when the Court upheld California’s ban on affirmative action in August of 2010, and Moreno has also pleased many gay rights activists as the only justice who voted against Proposition Eight (defining marriage as between a man and woman). See Strauss v. Horton (2009) 46 Cal. 4th 364 (regarding Proposition Eight). On that note, he also authored two other notable decisions on the subject of gay rights. See Elisa B. v. Superior Court (2005) 37 Cal. 4th 108 (holding that California law recognizes parental relationships involving two women); Koebke v. Bernardo Heights Country Club (2005) 36 Cal. 4th 824 (holding that California anti-discrimination law bars businesses from treating registered domestic partners differently from married couples).

Upon Justice Moreno’s resignation, the court will now lack representation of the African-American and Hispanic communities of the state’s population, respectively.   Some speculate that Governor Brown will choose a representative of one of these groups to fill Moreno’s place.  See, e.g., The Herald article.

Despite his liberal leaning, Moreno is revered on both sides of the political spectrum for his skill as a judge.  Tani Cantil-Sakauye, the California Supreme Court’s new chief justice, said she had expected to serve alongside Moreno for at least a decade.  She issued a statement praising him as “a consummate professional, a dedicated and gracious jurist.”

In some ways, the law in this field has not yet caught up with available technology.  For example, there is no clear rule in California yet as to whether a police officer may search your phone upon arrest.  This will likely depend on the reason for arrest and other circumstances at issue.   However, in courts outside California, police officers have been granted this right.  See, e.g., U.S. v. Engler (8th Cir. 2008) 521 F.3d 965; U.S. v. Finley (5th Cir. 2007) 477 F.3d 250.  In criminal cases, a defense attorney can provide further advice regarding your particular case, but as a general rule, notification laws that sometimes protect communications in civil suits (or at least give you the opportunity to protest disclosure) do not apply to criminal cases.  See Pitchess v. Superior Court (1974) 11 Cal.3d 531; 18 U.S.C.A. § 2703(b)(1)(A).  Under federal law, government entities may require a cell phone provider to specifically preserve and produce any messages you send from your phone (See, e.g. 18 U.S.C.A. §§ 2702, 2703).

Even when a cell phone user deletes his or her messages, it is possible that the cell phone provider will have the message stored on a server or that they will be recoverable from the phone itself.  However, time is of the essence in obtaining such records.  Text storage practices of various cell phone carriers vary from one provider to the next.  If you want to access messages you sent or received, you should notify your attorney immediately of the existence of the messages so that they can make attempts to preserve the evidence.  This is because messages are only stored for a matter of days and even law enforcement may be unable to obtain messages after they are purged.

Also, whether the messages can be retrieved from the handset itself after being deleted depends on whether you use a removable SIM card.  A computer data recovery expert might be able to assist you (or the opposing party in a lawsuit) with retrieving deleted messages from a cell phone that has a SIM card, but not if the messages were only ever stored on the phone itself.  Again, this can also be a costly and technologically risky process.

Even in cases where text messages are recovered, they may not be admissible in court.   A good attorney will be familiar with the legal evidentiary objections that can be raised to such evidence.  These include objections based on relevance, authenticity, hearsay, and the prejudicial effect of the evidence.  In addition to such legal strategies, a cell phone user’s prudence is always advisable and the moral of this story is to think before you text… and before you delete.

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.

Furthermore, the two main areas of the federal transfer tax system affecting registered domestic partnerships—gift taxes and estate taxes—could also change.   Due to the federal government’s disallowance of a marital deduction between domestic partners, domestic partners’ ability to use many commonplace estate planning vehicles was stymied.  For example, because of an unlimited marital deduction, heterosexual married couples avoid gift taxes when they transmute their separate property into community property.  However, this ease is not available to domestic partners.   By a strict reading of the code provisions, any lifetime transfer or payment by one same sex domestic partner to the other, above the annual exclusion (currently at $13,000), would be a taxable transfer.  Also, any transfer at death by a same sex partner would be subject to estate tax without an offsetting deduction.

Now, the logical next step would be for the IRS to expand its policy to these types of transfers with regard to domestic partnerships.  In such a case, transfers of community property assets from one partner to another will not be considered taxable transfers (like in a marriage).

For now, however, the ruling only applies to income earned.   In other words, if domestic partners have been keeping separate bank accounts to avoid the threat of taxation lest the funds be mingled, this will not be necessary any longer.  Partners now have more freedom to transfer half of earnings during the partnership to the other partner without the fear that they will be considered a taxable transfer.  The decision is a significant step for domestic partners, but still only applies to future earnings and those since 2007.   Also, significant ambiguity persists regarding how the ruling will affect gay couples who married in California when it was legal to do so but did not register as domestic partners.

The Janssen Law Firm encourages domestic partners in Humboldt County to keep abreast of the changes to these tax laws.   A good attorney is essential for sorting out the current laws and planning the best strategies for you, your family, and your estate plan.