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Waiting Time Penalty

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Waiting Time Penalties in California

Public policy in California has long favored the full and prompt payment of wages due an employee. To ensure that employers comply with the laws governing the payment of wages when an employment relationship ends, the Legislature enacted Labor Code Section 203 which provides for the assessment of a penalty against the employer when there is a willful failure to pay wages [willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Labor Code Section 203. Title 8, California Code of Regulations, Section 13520 The term “willful” as used in Labor Code Section 203 and as defined in civil court decisions does not necessarily imply anything blameworthy or evil intent, but rather that the person knows what he or she is doing, is a free agent, and fails to perform a required act.] due the employee at conclusion of the employment relationship. Assessment of the waiting time penalty does not require that the employer intended the action or anything blameworthy, but rather that the employer knows what he is doing, that the action occurred and is within the employer’s control, and that the employer fails to perform a required act.

Assessment of the penalty is not automatic however, as a “good faith dispute” [that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a “good faith dispute” did exist if the defense was reasonable and presented in good faith. Defenses presented, which, under all the circumstances, are unsupported by any evidence, are unreasonable, or are presented in bad faith, will preclude a finding of a “good faith dispute.” Title 8, California Code of Regulations, Section 13520] that any wages are due will prevent imposition of the penalty.

In order for the penalty to apply, there must be a true employer-employee relationship and a quit or a discharge, which includes a layoff.

The penalty applies to the willful failure to pay “any wages” [all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. Labor Code Section 200(a) A “wage” is defined as money or other value that is received by an employee as compensation for labor or services performed. “Other value” could include room, board, clothes, and other benefits to which the employee is entitled as a part of his or her compensation], which refers to the definition of “wages” in Labor Code Section 200 [where “Wages” includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation, and “Labor” includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment]. Thus, all compensation must be considered in determining if all wages due were paid as prescribed by law. “Wages” does not include expenses. In calculating the penalty, overtime wages are considered only if overtime is regularly scheduled each week. Occasional or infrequent overtime is not considered in the calculation of the daily rate of pay for purposes of computing the penalty.

The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. This does not mean that the wages continue for a 30-day period, but that the employee may be entitled to up to 30 actual days’ worth of wages. The 30-day period is calendar days, and includes weekends and holidays and any other days that the employee would not normally work. Payment of the wages or the commencement of an action stops the penalty from accruing. Filing a complaint in court commences an action. An employee’s filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered the filing of an action, and does not stop the penalty from accruing.

The waiting time penalty is not wages, thus, no deductions are taken from the penalty payment.

Note: If the answer to any of the questions below states that the employee is entitled to the waiting time penalty, it is assumed that all of the conditions for imposition of the penalty exist and there is no good faith dispute that any wages are due.

1. Q. Seven days ago I gave my employer notice that I was quitting on Friday, which I did. I did not receive my final paycheck on that day, and on the following Monday called my former employer to find out when I would be paid. He informed me that my check was available and that I could come in and pick it up, and I told him I would do so. I purposely did not pickup my check until 10 days later, which was 13 days after I quit. Am I entitled to the waiting time penalty?

A. Yes, you are entitled to the waiting time penalty in the amount of three days’ wages. In this situation, since you gave your employer at least 72 hours prior notice that you were quitting and quit on the date you said you would, the employer’s obligation is to pay you all of your unpaid wages at the time of quitting. Labor Code Section 202 Since tender of payment of the final wages stops the penalty from accruing (in this case “tender of payment” is your former employer’s informing you on the Monday following your quit that your check was available, and your telling him that you would pickup it up), you are entitled to only three days’ wages worth of penalty.

You are not entitled to 13 days’ wages worth of penalty because you purposely avoided picking up your check for ten days after you were informed it was available. Labor Code Section 203 provides that “An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her…is not entitled to any benefit…for the time during which he or she so avoids payment…”

2. Q. On Monday of last week I informed my employer in writing that Friday of that week would be my last day of work as I was quitting. On Friday as I was leaving work I asked my employer for my check. He told me he didn’t have my check and that I would have to wait until the end of the payroll period when the payroll service prepared the semimonthly payroll checks. I asked if he would call me so I could come pickup my check, and he told me “no,” he’d just mail it when he got it. Fifteen days after the day I quit I received my check in the mail. The envelope was postmarked three days prior to that date. Am I entitled to the waiting time penalty, and if so, in what amount?

A. Yes, you are entitled to a waiting time penalty in the amount of 15 days’ wages. Under Labor Code Section 202, when an employee not having a written contact for a definite period quits his or her employment and gives 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, the employee is entitled to his or her wages at the time of quitting. Since you gave at least 72 hours prior notice of your intention to quit, quit on the day given in the notice, and did not receive your wages until 15 days later, you are entitled to a waiting time penalty in the amount of 15 days wages; the number of days between the date you were required to be paid and the date you were paid. Under these circumstances, the day you received the wages, and not the day they were mailed, is the date of payment and the day when the penalty stops accruing.

3. Q. If I quit my job without giving 72 hours prior notice and am not paid all of the wages due me within 72 hours after the time I quit, must I return to my former employer’s place of business 72 hours after quitting and demand my wages in order for the waiting time penalty to apply?

A. Waiting time penalties may apply to an employee who quits without 72 hours prior notice and who does not return to the workplace to demand wages. There are instances if the employer prevents you from returning for your wages, or the employer informs you that the wages will not be available even if you do return, whereby waiting time penalties may apply. Such situations are handled on a case-by-case basis. Furthermore, if you quit without giving at least 72 hours prior notice, you are entitled to receive payment of wages by mail if you request this and designate a mailing address. Labor Code Section 202. If you do so, and wages are not paid, waiting time penalties may apply. In general, employers should make diligent, good faith efforts to ensure that employees are paid, including payment of final wages.

4. Q. I was discharged from my employment two weeks ago. At that time I was paid all of my wages, but did not get reimbursed for any of my business related expenses until 10 days later. Am I entitled to the waiting time penalty, and if so, in what amount?

A. No, you are not entitled to the waiting time penalty. The waiting time penalty is assessed only when an employer willfully fails to pay an employee in accordance with Labor Code Sections 201, 201.5, 202, or 202.5, any wages of an employee who quits or is discharged. As you were paid all of your wages in accordance with the law and the reimbursement for business expenses is not wages, the waiting time penalty does not apply to your situation.

5. Q. I was discharged from my job two weeks ago. At that time I was paid the wages for all of the hours that I had worked, but was not paid for my 15 days of earned, accrued and unused vacation until 10 days later. Am I entitled to the waiting time penalty, and if so, in what amount?

A. Yes, you are entitled to the waiting time penalty in the amount of 10 days’ wages. The waiting time penalty is assessed only when an employer willfully fails to pay in accordance with Labor Code Sections 201, 201.5, 202, or 202.5, any wages of an employee who quits or is discharged. Under California law, earned vacation time is considered wages; and under Labor Code Section 227.3, unless otherwise provided by a collective bargaining agreement [An agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are subject to the agreement. This type of agreement may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits], whenever an employment relationship ends for any reason whatsoever and the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all such earned, accrued and unused vacation. In your situation, since your former employer was obligated to pay you all of your wages at the time you were discharged, including your 15 days of vacation wages, and did not do so, you are entitled to the waiting time penalty in the amount of 10 days wages, the number of days between the date you were discharged and the date you received all of your final wages, i.e., the 15 days vacation pay.

6. Q. How is the daily rate of pay calculated and the waiting time penalty computed?

A. The following are examples of calculations of the daily rate of pay and computations of the waiting time penalty. In each instance, these examples assume all of the conditions for imposition of the penalty exist and that there is no good faith dispute that any wages are due.
A security guard is discharged on Friday, July 12, 2002, and not paid all of her earned wages due until Monday, July 22, 2002, ten days later. She regularly worked 35 hours per week, Monday through Friday, and was making $8.00 per hour at the time of her termination.
Daily Rate of Pay Calculation

35 hours/week ÷ 5 days/week = 7 hours/day

7 hours/day x $8.00/hour = $56.00/day (daily rate of pay)

Waiting Time Penalty Calculation

10 days, the number of days between the date the employer was obligated to pay the employee, July 12, 2002, and July 22, 2002, the date she is paid all of her wages. (See Labor Code Section 201, discharge of employee; immediate payment)

10 days x $56.00/day = $560.00 waiting time penalty.

A salesclerk is discharged on Friday, May 3, 2002, and not paid all of his earned wages due until Friday, June 14, 2002, 42 days later. He regularly worked 40 hours per week, Tuesday through Saturday, but during the last week of his employment he worked four hours of overtime. At the time of his termination, the employee was earning $10.00 per hour.
Daily Rate of Pay Calculation

40 hours/week ÷ 5 days/week = 8 hours/day

8 hours/day x $10.00/hour = $80.00/day (daily rate of pay)

This example shows that occasional or infrequent overtime is not included in calculating the daily rate of pay for purposes of determining the amount of the waiting time penalty.

Waiting Time Penalty Calculation

30 days. Although the employee was not paid all of his wages due until June 14, 2002, 42 days after the date the employer was obligated to pay him, the maximum penalty allowed under the law, is 30 days’ wages. Labor Code Section 203

30 days x $80.00/day = $2,400.00 waiting time penalty.

This example shows that the maximum penalty allowed under the law is 30 days’ wages.

A fry cook voluntarily quit her job on Tuesday, July 2, 2002, without giving notice to her employer. She regularly worked 45 hours per week, Monday through Friday, and was making $10.00 per hour when she quit. She is paid all of her earned wages due on Friday, July 12, 2002, 10 days after she quit.

Daily Rate of Pay Calculation

45 hours/week ÷ 5 days/week = 9 hours/day

8 hours/day x $10.00 per hour = $80.00

1 hour/day overtime x $15.00/hour (1� x $10.00) = $15.00

$80.00 + $15.00 = $95.00 daily rate of pay

This example shows that regularly scheduled overtime is included in calculating the daily rate of pay for purposes of determining the amount of the waiting time penalty.

Waiting Time Penalty Calculation

7 days. The employee is entitled to only seven days’ wages as the penalty because the employer has 72 hour (3 days, which in this example would be until July 5) to pay terminal wages when an employee quits without giving at least 72 hours prior notice of his or her intention to quit. (See Labor Code Section 202, quitting employee; payment within 72 hours)

7 days x $95.00/day = $665.00 waiting time penalty.

This example shows that the employer has 72 hours to pay terminal wages when no notice or less than 72 hours prior notice of intention to quit is given.

A part-time file clerk voluntarily quit his job on Friday, March 15, 2002. On Friday, March 8, 2002, he gave his employer notice that he was quitting on the 15th of that month (more than 72 hours notice). He regularly worked two days per week, four hours per day. He was making $7.50 per hour when he quit. He is paid all of his earned wages due on Friday, April 5, 2002.

Daily Rate of Pay Calculation

4 hours/day x $7.50/hour = $30.00/day (daily rate of pay)

Waiting Time Penalty Calculation

21 days, the number of days from the date the employer was obligated to pay the employee, March 15, 2002, until April 5, 2002, the date he was paid all of his wages.

21 days x $30.00/day = $630.00 waiting time penalty.

This example shows that the waiting time penalty applies to employees regardless of whether they are part-time or full-time, and that when an employee gives at least 72 hours prior notice of intention to quit, and quits on the date given in the notice, the employer’s obligation to pay all of the wages due is the date that the employee quits.

A commission salesperson working for an appliance dealer is discharged on May 10, 2002. She is not paid her earned commission wages due until May 25, 2002, the regular payday. She regularly worked 40 hours per week, five days per week. For the last three full months of her employment, on average she earned $3,000.00 per month. As of the date of her discharge, May 10, 2002, all commissions since the end of the previous pay period had been earned and were calculable by the employer on that date. At the time of her discharge, the employee did not know the amount of commissions she had earned since her last pay period.

Daily Rate of Pay Calculation

$3,000.00/month x 12 months/year = $36,000.00/year

$36,000.00/year ÷ 52 weeks/year = $692.31/week

$692.31/week ÷ 5 days = $138.46/day (daily rate of pay)

Waiting Time Penalty Calculation

15 days, the number of days from the date the employer is obligated to pay the employee, May 10, 2002, until May 25, 2002, the date she is paid all of her wages.

15 days x $138.46/day = $2,076.90 waiting time penalty.

A salesperson is paid a fixed salary of $2,500.00 per month and a commission of 10% of sales she makes each month. She quits her job on March 15, 2002 after providing more than 72 hours notice of her intention to quit. She quits on the day given in her notice. For the past three months she has averaged $1,500.00 in commission wages each month. She regularly worked 40 hours per week, five days per week. She is paid her salary wages on March 15, 2002, the day she quits; however, she is not paid her commission wages until April 1, 2002, the regular payday for commissions. All commission wages were earned prior to March 15, 2002, and were calculable by the employer on that date.

Daily Rate of Pay Calculation

$2,500.00 base salary/month + $1,500.00 average commissions/month = $4,000.00 average wages/month.

$4,000.00 average wages/month x 12 months/year = $48,000.00/year

$48,000.00/year ÷ 52 weeks/year = $923.08/week

$923.08/week ÷ 5 days/week = $184.62/day (daily rate of pay)

This example shows how the daily rate of pay is calculated when two different types of wages are earned.

Waiting Time Penalty Calculation

17 days, the number of days from the date the employer is obligated to pay the employee, March 15, 2002, until April 1, 2002, the date she is paid all of her wages.

17 days x $184.62/day = $3,138.54 waiting time penalty.

7. Q. Is overtime included in calculating the daily rate of pay for purposes of computing the waiting time penalty?

A. It depends. Regularly scheduled overtime is included in calculating the daily rate of pay for purposes of computing the waiting time penalty. On the other hand, occasional or infrequent overtime is not included in the calculation of the daily rate of pay for purposes of computing the waiting time penalty.

8. Q. I understand that if I am discharged from my job, or quit, and my employer willfully fails to pay me my final wages and there is not a good faith dispute that any wages are due, that I am entitled to a waiting time penalty of up to 30 days’ wages. If my employer pays me 15 days after my final wages are due, am I entitled to the full 30 days’ wages of penalty?

A. No, payment of wages or the commencement of an action stops the penalty from accruing. Filing in court commences an action. Filing a wage claim with the Labor Commissioner’s office (DLSE) is not considered an action and does not prevent the waiting time penalty from continuing to accrue.

9. Q. I was discharged last week and not paid all my wages. At the time I was discharged my former employer informed me that he could not pay me because he didn’t have the money. Will this be a valid defense to my claim for the waiting time penalty?

A. No, it will not be a valid defense. Inability to pay is not a defense to the failure to timely pay wages under Labor Code Sections 201, 201.5, 202, and 202.5, and does not relieve the employer from liability of the waiting time penalty under Labor Code Section 203.
Other reasons commonly given by employers for not making a timely payment under Labor Code Sections 201, 201.5, 202 and 202.5 that do not relieve the employer of liability from imposition of the waiting time penalty are:

Payroll checks are only paid on regular paydays, and that is when you will receive your wages.
Our payroll department is out-of-state and cannot get us a check in time.
You still owe us money for the goods you purchased, and we are not going to pay you your wages until you pay us.
10. Q. Does the waiting time penalty apply to part-time and temporary employees, or just to full-time employees.

A. The waiting time penalty applies to all employees regardless of status, exempt, nonexempt, full-time, part-time, temporary, probationary, or otherwise. The penalty does not apply to independent contractors or volunteers, as they are not “employees.”

11. Q. When computing the amount of penalty, do you count only the days I might have worked during the period for which the penalty accrues, or do you also include all non-workdays?

A. All non-workdays are included. When computing the penalty you count all of the calendar days for which the penalty accrues, including weekends, non-workdays (e.g., days off), and holidays.

12. Q. I am a salaried employee. For purposes of determining the waiting time, is one month’s salary the same as 30 days’ wages?

A. No, one month’s salary does not equate to 30-days wages. A salaried employee working five days per week will on average work 21.6 days per month (52 weeks/year ÷ 12 months/year x 5 days/week) in earning his or her full salary. However, since the waiting time penalty is calculated using a daily rate of pay, and can be up to 30 days’ wages, the maximum penalty will always exceed a person’s monthly salary. For example, assume that the maximum penalty of 30 days’ wages is appropriate for a salaried employee who was making $2,500.00 per month at the time the employment relationship ended. In such a situation, the penalty would be $3,461.54, computed as follows:
$2,500.00/month x 12 months/year = $30,000.00/year

$30,000.00/year ÷ 52 weeks/year = $576.92/week

$576.92 ÷ 5 days/week = $115.38/day (daily rate of pay)

$115.38/day x 30 days = $3,461.54 (waiting time penalty)

13. Q. My employer failed to pay me my final wages within the time period prescribed by law and I believe I am entitled to the waiting time penalty. What can I do?

A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or bring an action in court against your former employer to recover the wages if they are still due you, and to claim the waiting time penalty.

14. Q. What is the procedure that is followed after I file a wage claim?

A. After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim process procedure.

15. Q. What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?

A. When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.

Vacation Cash Out

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California Law Vacation Cash Out

There is no legal requirement in California that an employer provide its employees with either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination. (Suastez v. Plastic Dress Up (1982) 31 C3d 774) An employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595) And, unless otherwise stipulated by a collective bargaining agreement [an agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are subject to the agreement. This type of agreement may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits], upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to “apply the principles of equity and fairness” in resolving vacation claims.

Note: In the case of Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 782 (1982), the employer’s policy declared that one week of PTO/vacation would accrue after one year of employment. The California Supreme Court held that the PTO/vacation time was not earned at the end of the year, but instead earned on a pro-rata basis as the employee worked (typically during each pay period).

The employer’s vacation plan states that no vacation is earned during the first six months of employment

This is legal. DLSE’s enforcement policy does not preclude an employer from providing a specific period of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This could apply to a probationary or introductory period, and can even apply to the whole first year of employment.

Such a provision in a vacation plan will only be recognized, however, if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period. For example, a plan with the following provisions would be an obvious subterfuge and not recognized as valid:

Year 1: No vacation

Year 2: 4 weeks vacation

Year 3: 2 weeks vacation

The four weeks’ vacation earned in the second year, when viewed in the context of the two weeks’ vacation earned in the third year, makes it clear that two of the four weeks earned in year two are actually vacation earned in year one.

A valid vacation plan could look like the following:

Year 1: No vacation

Year 2: 2 weeks vacation

Year 3: 3 weeks vacation

Years 4 through 10: 4 weeks vacation

In those instances where a “waiting period” (Year 1 in the examples above) is found to be a subterfuge, employees who separate from their employment during the “waiting period” will be entitled to prorated vacation pay at their final rate of pay. On the other hand, where the employer’s vacation plan has a valid “waiting period” provision, employees who separate from their employment during that period will be ineligible for any vacation pay.

Earned Vacation

In California, because paid vacation is a form of wages, it is earned as labor is performed. An employer’s vacation plan may provide for the earning of vacation benefits on a day-by-day, by the week, by the pay period, or some other period basis. For example, an employer’s policy may provide that an employee will earn a proportionate share of his or her annual vacation entitlement for each week of a calendar year in which the employee either works at least one full day or receives at least one full days’ pay during such week. Thus, for example, if an employee is entitled to two weeks (10 work days) annual vacation, and works full-time, eight hours per day, 40 hours per week, in the above example for each week the employee works at least one full day, he or she will earn 1.538 hours of paid vacation, calculated as follows:

10 work days entitlement per year x 8 hours/day = 80 hours vacation entitlement per year

80 hours vacation entitlement per year ÷ 52 weeks per year = 1.538 hours of vacation earned per week

In contrast to how vacation pay may be earned, the calculation of vacation pay for terminating employees (a quit, discharge, death, end of contract, etc.) who have earned and accrued and unused vacation on the books at the time of termination must be prorated on a daily basis and must be paid at the final rate of pay in effect as of the date of the separation. For example, an employee who is entitled to three weeks of annual vacation (15 work days entitlement per year x 8 hours/day = 120 hours vacation entitlement per year) who quits on August 7, 2002 (the 219th day of the year) without having taken any vacation in 2002, who has no vacation carry-over from prior years, and whose final rate of pay is $13.00 per hour, would be entitled to $936.00 vacation pay upon separation, calculated as follows:

Pro rata daily basis:

219 days (August 7, 2002, date of quit) ÷ 365 days/year = 60%

60% of 120 hours vacation entitlement = 72 hours vacation earned and accrued through August 7, 2002

Vacation days used in 2002 = 0

Vacation earned but not taken at time of separation = 72 hours

72 hours x $13.00/hour = $936.00 vacation pay due at separation.

Part-time employee excluded from the employer’s vacation plan (only full-time employees get vacation)

It is legal. If an employer’s vacation plan/policy excludes certain classes of employees, such as part-time, temporary, casual, probationary, etc., such a provision is valid, and the agreement will govern. To avoid any misunderstandings in this area, the vacation plan/policy should state clearly and specifically which employee classification(s) are excluded.

4.

Q.

My employer’s vacation policy provides that if I do not use all of my annual vacation entitlement by the end of the year, that I lose the unused balance. Is this legal?

A.

No, such a provision is not legal. In California, vacation pay is another form of wages which vests as it is earned (in this context, “vests” means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date (“use it or lose it”) is an illegal policy under California law and will not be recognized by the Labor Commissioner.

5.

Q.

My employer’s vacation policy provides that once an employee earns 200 hours of vacation, no more vacation may be earned (accrued) until the vacation balance falls below that level. Is this legal?

A.

Yes, such a provision would be acceptable to the Labor Commissioner. Unlike “use it or lose it” policies, a vacation policy that places a “cap” or “ceiling” on vacation pay accruals is permissible. Whereas a “use it or lose it” policy results in a forfeiture of accrued vacation pay, a “cap” simply places a limit on the amount of vacation that can accrue; that is, once a certain level or amount of accrued vacation is earned but not taken, no further vacation or vacation pay accrues until the balance falls below the cap. The time periods involved for taking vacation must, of course, be reasonable. If implementation of a “cap” is a subterfuge to deny employees vacation or vacation benefits, the policy will not be recognized by the Labor Commissioner.

DLSE has repeatedly found vacation policies which provide that all vacation must be taken in the year it is earned (or in a very limited period following the accrual period) are unfair and will not be enforced by the Division.

6.

Q.

Can my employer tell me when to take my vacation?

A.

Yes, your employer has the right to manage its vacation pay responsibilities, and one of the ways it can do this is by controlling when vacation can be taken and the amount of vacation that may be taken at any particular time.

7.

Q.

My employer’s vacation policy provides that if I don’t use all of my vacation by the end of the year, he will pay me for the vacation that I earned and accrued that year, but did not take. Is this legal?

A.

Yes, your employer has the right to manage its vacation pay responsibilities, and one of the ways it can do this is by paying you off each year for vacation that you earned and accrued that year, but did not take.

8.

Q.

My employer has combined its vacation and sick leave plans into one program that it calls “paid time off” (PTO). Under this program I have a certain number of paid days each year that I can take off from work for any purpose. Does this allow my employer to circumvent the law as it relates to vacations?

A.

No, a “paid time off” (PTO) plan or policy does not allow your employer to circumvent the law with respect to vacations. Where an employer replaces its separate arrangements for vacation and sick leave with a program whereby employees are granted a certain number of “paid days off” each year that can be used for any purpose, including vacation and sick leave, the employees have an absolute right to take these days off. Consequently, again applying the principles of equity and fairness, DLSE takes the position that such a program is subject to the same rules as other vacation policies. Thus, for example, the “paid time off” is earned on a day-by-day basis, vested paid time off days cannot be forfeited, the number of earned and accrued paid time off days can be capped, and if an employee has earned and accrued paid time off days that have not been used at the time the employment relationship ends, the employee must be paid for these days.

9.

Q.

My employer allows its employees to take their vacation before it is actually earned or accrued. Last month I took my three weeks vacation before I had actually earned all of it. I quit my job this month and my employer deducted all of the unearned vacation days that I had taken from my final paycheck. Can he do this?

A.

No, your employer cannot deduct “advanced” vacation (i.e., vacation that is taken before it is earned or accrued) from your final paycheck. Because of work schedules and the wishes of employees, many employers allow employees to take their vacation before it is actually earned. Under California law, vacation benefits are a form of wages, and an employer’s practice of allowing employees to take their vacation before it is actually earned or accrued is in effect an advance on wages. Thus, if an employee takes an advance on vacation and then quits or is discharged before all of that advanced vacation is earned or accrued, the effect is that there has been an overpayment of wages which is a debt owed to the employer.

The California courts have noted on a number of occasions that an advance on wages, as with any other debt owed (either to the employer or a third party), is subject to the provisions of the attachment law. However, since wages are exempt from prejudgment attachment, neither the employer nor any third party can recover the debt by way of attachment of the employee’s final pay, as to do so would violate the public policy considerations underlying the wage exemption statutes. Thus, in California since the wage garnishment law provides the exclusive judicial procedure by which a judgment creditor can execute against the wages of a judgment debtor, an employer may not resort to self-help to recover debts owed to the employer by an employee from the wages then due to the employee.

10.

Q.

What happens to my earned and accrued but unused vacation if I am discharged or quit my job?

A.

Under California law, unless otherwise stipulated by a collective bargaining agreement, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all of his or her earned and accrued and unused vacation days. Labor Code Section 227.3. Because paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck.

11.

Q.

My employer does not allow employees to carry-over any unused vacation days from year-to-year. When I was discharged last week none of these forfeited vacation days were included in my final paycheck? What can I do?

A.

You can either file a wage claim with the Division of Labor Standards Enforcement (the Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203 [(a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. (b) Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise].

Note: An employee or former employee may file an INDIVIDUAL wage claim to recover:

Unpaid wages, including overtime, commissions and bonuses.
Wages paid by check issued with insufficient funds.
Final paycheck not received.
Unused vacation hours that were not paid upon termination of the employment relationship, e.g., a quit, discharge, or layoff.
Unauthorized deductions from paychecks.
Unpaid/non-reimbursed business expenses.
Reporting time pay/split shift premiums.
Failure to provide a meal and/or rest period in accordance with the applicable Industrial Welfare Commission Order.
Liquidated damages for failure to receive minimum wage for each hour worked.
Waiting time penalties for failure to receive final wages timely upon separation of employment.
Penalties for paycheck(s) that have bounced or are not negotiable within 30 days of receipt. Penalties for employer’s failure to allow inspection or copying of payroll records within 21 days of request.
Sick Leave Pay for time accrued and used for which you were not paid (effective July 1, 2015).

12.

Q.

What is the procedure that is followed after I file a wage claim?

A.

After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.

If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim procedure.

13.

Q.

What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?

A.

When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.

14.

Q.

What can I do if my employer retaliates against me because I informed him that in California vacation is wages and cannot be forfeited?

A.

If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you objected to the fact that your vested vacation was being forfeited and not carried over from year-to-year, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. Any employee or applicant for employment who believes he or she was discharged or denied employment or otherwise retaliated against in violation of any law under the jurisdiction of the labor commissioner may file a complaint with the labor commissioner

In the alternative, you can file a lawsuit in court against your employer.

Administrative Law

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Administrative Law in California

General Information

As a general rule, regulations are different from statutes: regulations are enacted by administrative agencies, while statutes are enacted by the legislature (or by voter initiative). The authority to adopt, amend, and repeal regulations is granted to an agency by either constitutional provision or statute. When exercising this authority, agencies must follow the procedures set forth in the California Administrative Procedure Act. This entry outlines how to locate and update California regulations.

Some agencies have established administrative tribunals that adjudicate certain disputes.This entry will help you locate those agency decisions.

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme

Finding Regulations:

Regulation citations include a title number, publication name, and section.

Examples:
Title 3, California Code of Regulations, section 432
Cal. Code Regs., tit. 3, §432
3 C.C.R. §432

If you have a citation to a regulation, it is easy to find the appropriate title and locate the section. Regulatory materials are compiled in the California Code of Regulations (CCR). The CCR is divided into the following 28 titles, which are subdivided into divisions, parts, and sections:

No.
Title
No. Title
1 General Provisions 15 Crime Prevention and Corrections
2 Administration 16 Professional and Vocational Regulations
3 Food and Agriculture 17 Public Health
4 Business Regulations 18 Public Revenues
5 Education 19 Public Safety
6 Governor [no regulations] 20 Public Utilities and Energy
7 Harbors and Navigation 21 Public Works
8 Industrial Relations 22 Social Security
9 Rehabilitative and Developmental Services 23 Waters
10 Investment 24 Building Codes
11 Law 25 Housing and Community Development
12 Military and Veterans Affairs 26 Toxics
13 Motor Vehicle 27 Environmental Protection
14 Natural Resources 28 Managed Health Care

Barclay’s Official Code of California Regulations

The current CCR is located in the 4th Floor Stacks. The Building Codes in volume 24 are published separately and are kept at the Reference Desk(KFC35.A22). A few regulations are not included in the CCR. For example, the print version of a few provisions in Title 10, Article 7 (such as sections 2350 et seq.) must be obtained from the Workers’ Compensation Insurance Rating Bureau.

Barclay’s publishes a Master Index to the current CCR. It is the last two volumes in the set. One volume contains statute to regulation tables; the second volume contains a subject index. The subject index is the place to look if you do not have a citation to a regulation.

The current CCR may be found online at http://www.calregs.com . Title 6 (Governor) and title 24 (Building Codes) are not included on this web site. This web site. also allows you to find regulations by looking up the relevant administrative agency (e.g. Department of Consumer Affairs) or by searching specific section numbers. This searchable database is updated weekly, and includes helpful instructions. Title 24 is divided into parts, and part 1 (Building Standards Administrative Code), part 7 (Elevator Safety Construction Code), part 8 (Historical Building Code), and part 12 (Reference Standards Code) are available online in PDF format at http://www.bsc.ca.gov/title_24/t24_2001tried.html.

The CCR (titles 6 and 24 are not included) is also available on Lexis and Westlaw:
Lexis: Search in CAL; CAADMN (Barclay’s Official California Code of Regulations)
Westlaw: Use the CA-ADC database (Barclay’s Official California Code of Regulations)

The Internet version of the CCR and the versions on Westlaw and Lexis are all searchable full text.

Updating Regulations and Finding Proposed Changes to Regulations:

The California Regulatory Code Supplement (Digest of New Regulations)
Micrographics – Cabinets 17-18 [1945-current]
This contains the official register of changes to the CCR. The weekly updates include the full text of all the regulations filed during that week with the Secretary of State, as well as a list of the CCR sections affected by the newly published regulation. Just to confuse the issue, this publication is sometimes called the Register.

The California Regulatory Notice Register (Z Register)

This additional weekly publication is published by the State Office of Administrative Law. It includes all proposed regulatory changes within state agencies, as well as disapproval decisions, regulations filed with the Secretary of State, title and section changes to the CCR filed with the Secretary of State, and agency contact information. There is no index, so you will need to look at the table of contents for each issue to check for proposed changes.

You can also check the Rulemaking Calendar, published each year in the Z Register. Every board and department lists proposed regulations, the subject of the proposed regulation, the CCR title and sections affected, the statutes being implemented, contact names and telephone numbers, and projected dates for notices, hearings, and adoption. The current year of the Z Register is kept in a white binder after the last bound volume.

The Z Register began publication in 1974, and information from the 1974-1978 registers is available at the California State Library.

The California Regulatory Notice Register (Z Register) is also available on the Internet at http://www.oal.ca.gov/reg_notice.htm . The site has full text registers from January 1, 2001 to current.

Shepard’s California Citations

There is a Shepard’s volume containing citations to the Code of Regulations. Shepardizing regulations can reveal if regulations have been updated, as well as provide case and law review article citations.

Online Resources:

Links to California state agencies may be found at http://www.stateinformation.com/stateagencies.html. Check an agency’s web site for new and proposed regulations.

Lexis: Search in the Lexis platform (formerly CAL;RGALRT) for tracking the full text of proposed, amended, or final regulations; updated daily. November, 1997- current.
Westlaw: Search in the West platform (formerly CA-REGTXT) for tracking the full text of each stage of pending and current regulations, from mid-2002 to current. Updated daily.

Approved and proposed changes in Building Code standards may be found at the Building Standards
Commission’s web site. at
http://www.bsc.ca.gov/apprvd_chngs.html and
http://www.bsc.ca.gov/prpsd_chngs.html. You can also check online for the most recent
energy efficiency standards.

Finding Administrative Decisions and Opinions of the Attorney General: Administrative Decisions

State agencies conduct quasi-judicial hearings. For an overview of this process, see California Administrative Hearing Practice. The State Administrative Manual (SAM) is a reference source for statewide policies, procedures, regulations and information. The manual is available on the Internet at http://sam.dgs.ca.gov/default.htm

Administrative decisions include the following:

  • Agricultural Labor Relations Board: Decisions and Orders [1976-current]
  • California Worker’s Compensation Reporter:[1973-current]
  • Fair Political Practices Commission: Opinions: [1975-current]
  • Fair Employment and Housing Commission: Precedential Decisions [1978-current]
  • Industrial Accident Commission: California Compensation Cases. Includes all decisions of the Supreme and Appellate courts in cases originating from the Industrial Accident Commission. [1936-current] [Continues the cases of the Industrial Accident Board, 1911-1935]
  • Office of Administrative Law Determinations: Determinations [1987- current].Contains OAL determinations as to whether a particular agency rule is in fact a regulation that should have been, but was not, adopted in compliance with the procedural requirements of the APA.
  • Public Employment Relations Board: Decisions [1976current]
  • Public Utilities Commission: Decisions of the Public Utilities Commission of the State of California [1948 – current] [Continues the decisions of the Railroad Commission 1911-1947]
  • State Water Resources Control Board: Decisions [1905-current]
  • State Water Resources Control Board:Orders [1970-1993, 1995-current]
  • State Water Resources Control Board. Division of Water Rights: Division Decisions [1999-current]
  • Unemployment Insurance Appeals Board: Precedent Decisions: Benefit, Ruling, Tax, and Disability [1968 – current]

Many agencies also publish their decisions on the Internet. You may want to check the list of agencies at http://www.ca.gov/About/Government/agencyindex.html to see if an agency has recently started posting its decisions on their web site. The following agencies currently have their decisions available online:

Also:

Online Databases: Check the California administrative materials libraries in Lexis (under California Administrative Files) and in Westlaw (under California Administrative Law) for the names of the individual databases and dates of coverage for administrative appeals board rulings and decisions.

Not all agencies publish their decisions. For a listing of agencies which do publish their decisions, seeMartin, Henke’s California Law Guide, 5th edition, p. 221-28.
KFC 74.H46 1995 Reference Desk.

Opinions of the California Attorney General:

  • The Opinions of the California Attorney General (Department of Justice) from 1943 – current are available in some libraries.
  • Lexis has the Attorney General’s opinions from January 1977-current in its platform (formerly STATE;CAAG database).
  • Westlaw has the Attorney General’s opinions from January 1977-current in its platform (formerly CA-AG database).
  • The Attorney General’s office has posted full text Opinions of the California Attorney General from 1986-current.
  • Attorney General opinions from 1852-1942 were not published officially, but are available on microfilm.

Finding Superseded Regulations and Regulatory History:

The California Code of Regulations and Barclay’s Official California Code of Regulations may be used to find changes made 1977-current.

One way to find changes is to check the History note at the end of the section. Note the year and register number (e.g. 1992 reg 24). If the note is not at then end of the section, try the end of the preceding section, the end of the first section in the article, or the end of the first section in the title. You can use the history note to find out the effective date of the regulation, and to get references to earlier versions of the regulation. You can then look up these references in the appropriate year of the CCR. Sometimes this works perfectly. However, not all regulatory changes make it into the notes. If you can’t find the earlier references this way, try the next hint.

Hint: Use the effective date(s) of your regulation to review the entries in the appropriate Regulatory Code Supplement. Use the references to the sections affected to locate the previous citation for your regulation, and then look at the official version of the regulation in the appropriate year of the CCR. Work backwards in the Regulatory Code Supplement for each earlier incarnation of the regulation.

There is also a handwritten guide to the register of all the changes made to each title, by agency, from 1945 to 1990. Legislative Research, Inc. has made these handwritten cards available online at its website (lrihistory.com). The only searchable text is the title information (search = Title 13). Then review the card entries. The entries do not list individual regulations, so you will have to search each register to see if your regulation was affected. However, you can cross-reference the card entries with the list of changes you have found with your previous search.

California Codes of Regulations (and its predecessor, the California Administrative Code) from previous years may be found in Micrographics, KFC35 .A2 1945- current. (Cabinets 17-18).

The California Regulatory Code Supplement (Digest of New Regulations)
(previously called the California Administrative Code Supplement)

The binder contains the official register of changes to the administrative code. The weekly updates include the full text of all regulations filed during that week with the Secretary of State, as well as a list of the sections affected by the newly published regulation. Just to confuse the issue, this publication is sometimes officially referred to as the Register.

The UMI Comprehensive Index (Comprehensive Index, California Code of Regulations) may be useful for finding the changes to a particular section from 1981 to 1999 (ceased).

The California Regulatory Notice Register (Z Register)
This additional weekly publication is published by the State Office of Administrative Law. It includes all proposed regulatory changes within state agencies, as well as disapproval decisions, regulations filed with the Secretary of State, CCR Changes with the Secretary of State (title and section changes), and agency contact information. There is no index, so you will need to scan the table of contents in each issue to check for proposed changes. The current year’s publications are kept in a white binder at the end of the bound volumes.

Barclay’s Law Monthly  [1990-1996, ceased]
Changes enacted between 1990-1996 are arranged by broad subjects. Listings of related court cases and affected California Code sections are also included.

Review policy briefs and agency reports: the California Research Bureau (1991-current) is part of the California State Library; it provides nonpartisan research as requested and its published reports are available online. The Legislative Analyst’s Office has a searchable bank of policy reports. TheLegislative Counsel’s Agency Reports provide information about reports by various state and local agencies.

Call the Agency: The Public Records Act (Government Code § 6250 et seq.) sets out procedures for public access to rulemaking files. You can consult the agency or its legal department and request rulemaking files.

Using Other Sources:

San Francisco Public Library (100 Larkin Street) http://sfpl.org/ Holdings include the CCR from 1990 – current and the Z Register from 1988 – current. The Public Library is an official state depository, so they hold many published agency decisions.

San Francisco Law Library (Van Ness and McAllister/ fourth floor, War Memorial Building)http://sflawlib.ci.sf.ca.us/ Holdings include the CCR from 1941 – current, and the Z Register from 1982 – current.

California Office of Administrative Law http://www.oal.ca.gov/ The process by which rules become regulations is governed by the Administrative Procedure Act (Government Code §§ 11340 et. Seq.) (available online at http://www.oah.dgs.ca.gov/Laws/default.htm.) For more information on Administrative Procedures, call the Office of Administrative Law Reference Attorney.

Go to the Agency’s Web Page: Agencies frequently have information about their policies, procedures, guidelines, and emergency regulations online. An example is at the Department of Toxic Substance Control at http://www.dtsc.ca.gov/.

Exempt From Review by the office of Administrative Law and the Legislative Process

A statutory provision exempting a state agency from the Administrative Procedure Act requirement to submit proposed regulations and their supporting rule-making file to the Office of Administrative Law for review. Other APA requirements apply. (See APA rule-making procedures).

California Administrative Law

This section covers California-specific basic information on administrative law and related topics. Many of California's laws on administrative law are similar to those of other U.S. states, with some differences (in some cases, minor differences). California administrative law laws on administrative law are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on administrative law, which is a basic matter in California law.

Administrative Law in California: General Overview

This entry offers readers with practical insight to the subject of administrative law in California, a general introduction to the legal issues relating to administrative law under California law and practice.

Resources

See Also

Resources

See Also

  • Legislative Power
  • Legislative Branch
  • Legislation
  • Executive Branch
  • Legislative Function

Popular Searches related with the California Legislature and Exempt From Review by the office of Administrative Law

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Compensation

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Compensation in California

For California Attorneys: Workers’ Compensation Exclusivity

( March 2015 ) Under California’s workers’ compensation system, the employer assumes liability for workplace injuries, regardless of fault. In exchange, the injured employee receives “relatively swift and certain payment of benefits to cure or relieve the effects of the industrial injury.” Also, the employer surrenders the right to contest liability via the civil justice system, while the employee “gives up the wider range of damages potentially available in tort.” (Shoemaker v. Myers, 52 Cal. 3d 1, 16 (1990))

Where the conditions for payment of workers’ compensation (WC) benefits exist, the employee’s statutory right to such benefits is an exclusive remedy, supplanting all other statutory and common law remedies and depriving the civil courts of jurisdiction over the matter. (See Cal. Lab. Code §§ 3600-3602 (all further references are to the Labor Code); Moise v. Owens, 96 Cal. App. 2d 617, 618-619 (1950))

It should be noted at the outset that the exclusivity issue is jurisdictional. If an employee sues his or her employer in tort, the employer does not waive the exclusivity rule by failing to assert it as an affirmative defense. The issue may be raised at any time before or at trial. (See Luchich v. City of Oakland, 19 Cal. App. 4th 494 (2003))

The exclusivity rule applies when: the worker suffers a physical injury or death; the injury or death arises out of, and in the course of, the employment and was proximately caused by the employment; the employer carried WC insurance or self-insured against WC claims; and no exception (discussed below) applies. (See §§ 3207, 3600, 3601, 3602, 3700)

Many attorneys are familiar with this rule and at least some of its exceptions, but detecting them can be difficult. The following scenarios should help attorneys recognize which facts give rise to workers’ compensation exclusivity and thus to tort immunity, and which facts tend to help an injured worker escape the damages limits imposed by the exclusivity rule.

Employment Relationship

The first key is detecting the employment relationship. A hypothetical case may help to illustrate this principle. Assume that Henry Homeowner hires Larry Upgrade, a licensed general contractor, to remodel his house. The project involves electrical work, which Larry subcontracts to Susan Volt. Susan, a licensed electrician, has no full-time employees, so she brings along Neil Smith, who is visiting from Nevada, to assist. She agrees to pay him $20 an hour for his help. Neil has no formal training as an electrician. Susan explains the job to Neil but does not advise him regarding safe practices with respect to electricity. While Susan is working in another room, Larry directs Neil to run an electrical wire through a wall using fish tape (a metal device for stringing wire). Neil is electrocuted and dies, leaving behind a wife and daughter. The wife and daughter want to know whether they can file suit, and if so against whom.

As a preliminary matter, the fact that Neil is a Nevada resident does not matter. Both California residents and out-of-state residents are covered by California’s WC system if the work giving rise to the injury occurred here. (§§ 3600.5(a), 5303)

What matters most is whether Neil will be considered an employee or an independent contractor. The distinction is crucial because while employers are not subject to suit for workplace injuries, those who hire independent contractors can be sued under negligence theories (discussed below).

Although neither Larry nor Susan may have considered Neil to be an employee, there is a rebuttable presumption that an unlicensed worker performing services for which a license is required is an employee. (§ 2750.5.) This also means that if Susan were unlicensed, Neil would be presumptively considered an employee of Larry, even if Susan had WC insurance to cover Neil’s injuries. (See Hernandez v. Chavez Roofing, Inc., 235 Cal. App. 3d 1092 (1991))

To defeat this presumption, Neil’s family must prove that he had the right to control the manner in which he performed his work, was customarily engaged in an independently established business, and was genuinely an independent contractor – “and not [attempting] subterfuge to avoid employee status.” (§ 2750.5)

Even if licensure were not an issue, the proof of independent-contractor status necessary to defeat WC exclusivity lies primarily in evidence that the worker had the right to control the method and performance of his or her work. Secondary factors include: The worker engages in a distinct occupation and has an independently established business or substantial investment involved; the worker cannot quit without incurring liability for failure to complete the job; the worker supplies his own tools or instrumentalities; payment is by job as opposed to by the hour; the worker hires others to assist with the work; the working relationship is brief; and any other evidence that tends to prove that the parties did not intend to create an employment relationship. (See §§ 2750.5, 3353; S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 48 Cal. 3d 341, 349 (1989); Germann v. Workers’ Comp. Appeals Bd., 123 Cal. App. 3d 776, 783 (1981).) The relative skill, education, and bargaining power of the worker also may be considered. (Germann, 123 Cal. App. 3d at 784.) Applying these factors, Neil appears to have been injured while working as Susan’s employee.

More about Compensation for Lawyers

Employer Coverage

Even if Neil is deemed her employee, Susan cannot rely on the exclusivity rule to shield her from tort liability unless she obtained workers’ compensation insurance or is self-insured for WC claims. (§ 3706; Huffman v. City of Poway, 84 Cal. App. 4th 975 (2000).) If Susan failed to do so, she has violated two of Neil’s primary rights – the right to a safe workplace and the right to work for an employer who carries WC insurance. In the absence of WC coverage, Neil’s family can bring a civil action for personal injury damages against Susan and simultaneously pursue a WC claim. (§ 3706, 3715; Le Parc Community Ass’n v. Workers’ Comp. Appeals Bd., 110 Cal. App. 4th 1161, 1173 (2003))

In such a case, presumptions work against the employer, provided Neil’s family alleges that he was injured in the course and scope of his employment with an employer who willfully failed to procure WC coverage. In that situation, employer negligence is presumed to have caused the injury, and the employer bears the burden of rebutting the presumption. (§ 3708.) The determination about available WC coverage will be made by the court; if the defendant fails to produce such proof, the case may be tried before a jury, which can consider awarding the full range of tort damages to the plaintiff. (Coleman v. Silverberg Plumbing Co., 263 Cal. App. 2d 74, 80 (1968))

If Neil’s family members simply file a negligence claim, without reference to either the employment relationship or the WC system, they must prove the elements of the tort, and the defendant must plead and prove both the employment relationship and the existence of WC insurance coverage in order to invoke WC exclusivity. (If the plaintiff alleges negligence within the employment relationship but fails to allege that the defendant did not have WC insurance, the complaint is subject to demurrer: The defendant can merely assert WC exclusivity, and the plaintiff would have to prove the lack of insurance for the case to survive. (Coleman, 263 Cal. App. 2d at 79)

To prevent a double recovery, the law provides that the employer gets a credit against WC benefits for any money awarded against it in the civil action. (§§ 3708-3709, 4554, 4555)

Other Defendants

Neil’s heirs could pursue a tort action against Larry (the general contractor) and Henry (the homeowner) if they can show that these hirers negligently exercised control over the job site and that their conduct contributed to Neil’s death. (See McKown v. Wal-Mart Stores, Inc., 27 Cal. 4th 219, 222 (2002).) Hirer liability also exists if the hirer actively directed the work in a manner that leads to injury or negligently failed to provide a promised safety measure, the absence of which substantially contributed to the injury. (Hooker v. Dept. of Transportation, 27 Cal. 4th 198, 212 fn 3 (2002); see also Tverberg v. Fillner Const., Inc., 202 Cal. App. 4th 1439, 1448 (2012).) A hirer is not liable for injuries to a subcontractor’s employee when the hirer merely failed to require that certain safety precautions be taken. (Hooker, 27 Cal. 4th at 213; Toland v. Sunland Hous. Group, Inc., 18 Cal. 4th 253, 267 (1998))

Here, Neil’s heirs can’t point to any control exercised by Henry, but because Larry supplied the dangerous instrumentality that harmed Neil, Larry may be liable in a civil action.

Development of Compensation for Attorneys

Borrowed Employees

Larry may be able to invoke WC exclusivity to avoid civil liability by claiming that although Susan was Neil’s “general employer,” Larry was his “special employer.” When an employer lends an employee to another entity, and they either share control over the worker’s activities or the borrower directs and controls the work, both entities are considered to be employers of the worker, such that WC exclusivity will bar the injured worker’s claim against both. This is commonly known as the “borrowed servant,” “special employment,” or “dual employment” doctrine. The regular employer is the “general employer,” and the borrowing employer is the “special employer.” (Kowalski v. Shell Oil Co., 23 Cal. 3d 168 (1979); Angelotti v. Walt Disney Co., 192 Cal. App. 4th 1394 (2011))

Exceptions

There are several notable exceptions to the exclusivity rule, including:

Parent-subsidiary relationship. If multiple corporations are involved and a subsidiary company is the true employer, there may be no WC exclusivity as to the parent company, provided the parent operated as a separate entity. If the parent engaged in independent, affirmative acts of negligence or misfeasance that proximately caused the plaintiff’s injury, a civil claim may lie. (Waste Mgmt., Inc. v. Superior Court, 119 Cal. App. 4th 105 (2004); Gigax v. Ralston Purina Co., 136 Cal. App. 3d 591 (1982).) For example, this could be the case if a parent company manufactures a defective product that injures an employee of a subsidiary entity.

– Power presses. Section 4558 of the Labor Code provides what is known in the WC arena as the “power press” exception. This is a vital rule that applies in the manufacturing industry. If the injury involves “material forming” machinery that utilizes a die that is designed for use in the manufacture of other products, there is no WC exclusivity if the employer knowingly removes, or fails to install, a point of operation guard “under conditions known by the employer to create a probability of serious injury or death.”

– Dual capacity. An injured employee can sue his employer in tort for injuries arising from the use of a defective product manufactured by the employer only if the product injures the employee after the employer-manufacturer has sold, leased, or otherwise transferred the product to an independent third party for valuable consideration, and that product is thereafter provided for the employee’s use by a third person. (§ 3602(b)(3); Foster v. Xerox Corp., 40 Cal. 3d 306 (1985))

– Fraudulent concealment. If an employer becomes aware of employee injury resulting from exposure to an unsafe condition, such as the use of dangerous chemicals, and the employer conceals this knowledge from the employee – thereby inducing the employee to continue working and continuing being exposed to the harm – the employee can bring a tort claim against the employer to recover damages for the extent to which the injury was made worse by the concealment. (See Johns-Manville Products Corp. v. Superior Court, 27 Cal. 3d 465 (1980).) However, mere concealment of unsafe working conditions does not bring a work-related injury outside the exclusivity rule. (§ 3602(b)(2))

– Willful assault. If the injury occurs as a result of the employer’s use of force, the “willful assault” exception allows an employee to sue in tort. (§§ 3601(a)(1), 3602(b)(1).) To qualify, the employer’s use of force or violence must amount to a willful physical assault or a willful and unprovoked act of aggression. The plaintiff must prove that the employer acted with a specific intention to cause an injury or death – “a conscious and deliberate intent directed to the purpose of inflicting an injury.” (Soares v. City of Oakland, 9 Cal. App. 4th 1822, 1824-1829 (1992); §§ 3601(a)(1) and 3602(b)(1).) Related to this concept is the rule that establishes tort liability for employers who ratify assaults on an employee by a co-employee. (See § 3602(b)(1))

Even though an employer’s actions “might be characterized as egregious … manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability,” the exclusivity rule probably applies. (See Shoemaker, 52 Cal. 3d at 15-16.) However, the employee may qualify for a 50 percent increase in WC compensation if the employer’s conduct is determined to be serious and willful. (§ 4553; Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994))

– Worker’s own action. WC benefits will be denied if the injury was caused by the employee’s own actions. Thus, there will be no entitlement to WC benefits when the injury was caused by the employee’s intoxication or unlawful use of a controlled substance; was intentionally self-inflicted; was caused by the employee’s commission of a felony; or was caused by an altercation in which the injured employee was the initial physical aggressor. (§ 3600(a)(4)-(8))

– Off-duty activity. Also, a worker injured during voluntary participation in an off-duty recreational, social, or athletic activity is not considered to have been injured in the course of employment, as long as the activity was not one that the employee was required nor reasonably expected to participate in, as part of or in conjunction with work-related duties. (§ 3600(a)(9))

Though these examples cannot cover every possible scenario, they serve to illustrate the core principles that govern California’s extensive WC system – one that, at least in theory, is supposed to be both fair and efficient. Whether the system has fulfilled that promise is another question altogether. See also in this legal Encyclopedia: Compensation Package Compensation Workers Compensation

Proceedings to Secure Workers' Compensation

Welcome to the California legal encyclopedia's introductory part covering the proceedings to secure Workers' Compensation laws of California, with explanations of the various implications of proceedings to secure Workers' Compensation in California and the statutes enforced in California in connexion with proceedings to secure Workers' Compensation. This introductory section covers case law related to proceedings to secure Workers' Compensation in California, the legal approach on proceedings to secure Workers' Compensation in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings to secure Workers' Compensation in California.

Proceedings to Secure Workers' Compensation in relation to Workers' Workers' Compensation

This section analizes the legal issue of proceedings to secure Workers' Compensation in this context.

Workers' Compensation Payments

Welcome to the California legal encyclopedia's introductory part covering the Workers' Compensation payments laws of California, with explanations of the various implications of Workers' Compensation payments in California and the statutes enforced in California in connexion with Workers' Compensation payments. This introductory section covers case law related to Workers' Compensation payments in California, the legal approach on Workers' Compensation payments in the United States and related topics. The information below provides an California-specific general overview of the legal regime of Workers' Compensation payments in California.

Workers' Compensation Payments in relation to Workers' Workers' Compensation

This section analizes the legal issue of Workers' Compensation payments in this context.

Resources

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Resources

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Liability

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Liability in California

For California Attorneys: Eavesdropping Liability

( February 2015 ) Some clients are just too good to be true. Take the plaintiff who swears she has the goods on the defendant because she secretly recorded an admission of wrongdoing. When that happens, your antenna should go up – but not because it’s a good case. In fact, as case law demonstrates, that client may be subject to substantial liability for violating California Invasion of Privacy Act (CIPA) (Cal. Penal Code §§ 630-637.5), which prohibits eavesdropping and recording certain communications. The statute subjects violators to civil and criminal penalties, including statutory damages and potential jail time. (See Coulter v. Bank of America, 28 Cal. App. 4th 923, 929 (1994))

The central CIPA sections prohibit wiretapping (§ 631), electronic eavesdropping on confidential communications (§ 632), and what might be called “wireless tapping” (§§ 632.5-632.7).

Penalties

On the criminal side, a CIPA violation is a wobbler: it can be charged as either a misdemeanor or a felony, depending on whether there are prior offenses. If not, the maximum fine is $2,500. But if the defendant is a repeat offender, the maximum fine is $10,000. (§ 632(a))

On the civil side, damages are $5,000 per violation (automatic statutory damages) or triple the actual damages, whichever is greater. (§ 637.2)

No Wiretapping

Wiretapping historically involved an actual electrical connection (a “tap”) placed on a telephone wire. By metaphoric extension, the term is now often used in reference to the monitoring of cordless, Internet and cellular communications. Section 631 prohibits wiretapping and provides for penalties against any person who attempts to gain the benefit of wiretapping or wiretaps, either:

in form, by tapping or making an unauthorized connection with a telephone wire or the like; or

in substance, by attempting to learn the contents of a wire communication without authorization or the consent of all parties to it.

Note that section 631 does not apply to the interception of wireless communications. It applies only to the unauthorized connection with any telephone wire. (§ 631(a).)

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No Electronic Eavesdropping

Section 632 is considerably broader, for it prohibits electronic eavesdropping on and the recording of a confidential communication.

To avoid a violation of section 632, all parties to the conversation must consent to the eavesdropping and recording. Accordingly, a “business that adequately advises all parties to a telephone call, at the outset of the conversation, of its intent to record the call would not violate the provision.” (Kearney v. Salomon Smith Barney, 39 Cal. 4th 95, 117 (2006))

However, section 632 applies only to electronic eavesdropping and recording. It is perfectly acceptable – or at least legal – in California to secretly use a stethoscope and a notepad to eavesdrop on and record someone else’s conversation in the next room.

By its own terms, section 632 requires that the communication in question be confidential, which is a highly litigated issue. A confidential communication is one “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” The code states that certain communications can never be considered confidential: communications made in a public gathering or in any legislative, judicial, or administrative proceeding open to the public, or “in any other circumstance in which the parties … reasonably expect that the communication may be overheard or recorded.” (§ 632(c))

For this reason, the code does not prohibit listening to or recording communications conducted by radio. Thus, while section 632 prohibits a person from secretly recording a confidential conversation he or she participates in, it does not prohibit a person from secretly recording a communication conducted by radio, even if that radio communication is ostensibly confidential. Section 632 deems such radio-mediated communications to be the equivalent of a discussion conducted at a public gathering – in essence, a discussion that was never intended to be confidential and therefore never subject to section 632’s prohibition against electronic eavesdropping and recording.

Great Expectations

An early line of authority held that a conversation would be considered confidential only if a party had an objectively reasonable expectation that the communication would not later be disseminated to others. (See O’Laskey v. Sortino, 224 Cal. App. 3d 241, 248 (1990).) A second line of authority held that the possibility of subsequent disclosure was irrelevant, the only issue being whether the parties expected that their discussion was being recorded. (See Frio v. Super. Ct., 203 Cal. App. 3d 1480, 1489-1490 (1988))

The California Supreme Court resolved this split when it endorsed the latter approach. (See Flanagan v. Flanagan, 27 Cal. 4th 766 (2002).) In short, if any party to a communication reasonably expects it to be confidential, the court will generally consider it to be a confidential communication. But if circumstances indicate that a party should have believed a particular conversation would be overheard or recorded, the court will not consider it confidential. (Flanagan, 27 Cal. 4th at 774-775)

This distinction can have very significant consequences. For example, in the Coulter case, the court described how an “amateur sleuth” recorded dozens of conversations he had with bank coworkers by means of two concealed tape recorders, all “in apparent anticipation of litigation he would later file, claiming sexual harassment and lack of adequate grievance review procedures.” (28 Cal. App. 4th at 925.) The plan backfired: The employee was fined $132,000 for 44 instances of electronic eavesdropping, at what was then the statutory penalty – $3,000 a pop. Lawyers should certainly dissuade their clients from going down that road.

Development of Liability for Attorneys

Objective Standard

Section 632 does not explicitly require that the desire for confidentiality be objectively reasonable. Rather, the statute defines a confidential communication as one “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” As such, the code section arguably requires only that the circumstances reasonably indicate that the desire for confidentiality, not the expectation of it, was reasonably evident.

In deciding the Flanagan case the state Supreme Court did not expressly decide this issue, but it did endorse the analysis utilized by the court of appeal in Frio. And the unambiguous holding in Frio was that the test of confidentiality turns on an objectively reasonable expectation of privacy, not merely a reasonable indication of one’s desire for confidentiality. (See Frio, 203 Cal. App. 3d at 1488.) Not surprisingly, in the wake of these cases courts have adopted an objective standard. (See Weiner v. ARS Nat’l Servs., 887 F. Supp. 2d 1029, 1032 (S.D. Cal. 2012))

Case Studies

The analysis of whether any particular communication is confidential involves a question of fact that may depend on numerous specific factors, such as whether a telephone call was initiated by the consumer or whether a corporate employee phoned the customer; the length of the customer-business relationship; the customer’s prior experiences with business communications; and the nature and timing of any recorded disclosures. (See Kight v. CashCall, 200 Cal. App. 4th 1377, 1396 (2011).) Consequently, case rulings are rather fact specific. Calls to customer service centers to dispute a charge typically do not support a reasonable expectation of privacy. (Faulkner v. ADT Sec. Servs., 706 F. 3d 1017, 1020 (9th Cir. 2013).) By the same token, no reasonable expectation of privacy existed in a phone call to a hotel for routine matters related to reservations and billing. (Young v. Hilton Worldwide, 2012 WL 5503866, at *1 (C.D. Cal.), reversed on other grounds, 565 Fed. Appx. 595, at *1 (9th Cir. 2014))

Meanwhile, a car salesperson had no expectation of confidentiality with respect to incoming customer calls on a 1-800 line because the salesperson had been notified that the calls would be recorded and because of the close proximity of other salespeople at the phone desk. (Bornstein v. Sonic Auto., 2014 WL 431203, at *6 (Cal. App.))

On the other hand, a reasonable expectation of privacy existed during a sales inquiry phone call in which the potential customer shared personal and confidential information but received no notification that the call might be recorded. (Brown v. Defender Sec. Co., 2012 WL 5308964, at *3 (C.D. Cal.).) Similarly, phone calls between individual borrowers and institutional lenders involving “sensitive financial information” were found to be confidential communications. (Kight, 200 Cal. App. 4th at 1384)

A court found that a phone conversation between a record producer and a musician’s manager was confidential because it “related to ongoing business matters which apparently were in a state of great flux, … market data or business strategy were discussed,” and the plaintiff’s “business involved a few key people, a highly visible product and the potential for substantial profit.” (Frio, 203 Cal. App. 3d at 1489)

The California Supreme Court found that, with respect to a phone call to a stock brokerage concerning personal financial affairs, it is “equally plausible [as not] that … a California consumer reasonably would anticipate that such a telephone call is not being recorded, particularly in view of the strong privacy interest most persons have with regard to the personal financial information frequently disclosed in such calls.” (Kearney, 39 Cal. 4th at 118 n. 10.) Meanwhile, a phone call between father and son concerning private family matters positively supported a reasonable expectation of privacy. (See Flanagan, 27 Cal. 4th at 771)

Fundamentally, the way to stay on the safe side of CIPA is to simply inform the other parties up front that a conversation is being recorded. If others choose to participate anyhow, their consent is implied. Any lesser notice may invite litigation.

Details

Class Certification

Because of the fact-specific nature of the confidentiality determination, courts typically decline to certify class actions alleging a violation of section 632. In such cases, the facts specific to each plaintiff caller predominate over the common issues. (See Hataishi v. First Am. Home Buyers Prot. Corp., 223 Cal. App. 4th 1454, 1463-1468 (2014))

Content Clues

A disputed issue is whether the content of a conversation informs the confidentiality analysis. The germ of the dispute is the California Supreme Court’s Flanagan decision, where the court stated: “Under the construction adopted here, the Privacy Act … protects against intentional, nonconsensual recording of telephone conversations regardless of the content of the conversation or the type of telephone involved.” (Flanagan, 27 Cal. 4th at 776.) Considered in a vacuum, this quote could mean one of two things: (1) Some conversations can be considered confidential regardless the content because other indicia establish that the parties reasonably believed it to be confidential, or (2) content is never relevant to confidentiality.

Taken in context, the court probably intended the first interpretation and not the second. After all, the Flanagan court also stated, while referring to and endorsing Frio, “the court reasoned that the nature of Frio’s business and the character of the communications showed that the parties would not expect their communications to be simultaneously disseminated to an unannounced second auditor.” (27 Cal. 4th at 772, citing Frio, 203 Cal. App. 3d at 1488-90 [emphasis added])

A complete evaluation of the “character” of a communication arguably should include the actual content of the conversation. Thus, a federal court recently noted that “[a]lthough the content of the communication is undoubtedly relevant to whether a party had a reasonable expectation of privacy in the communication, it is not dispositive and it should not be.” (Roberts v. Wyndham Int’l, 2012 WL 6001459, at *6 (N.D. Cal.))

Nevertheless, other courts have endorsed the content-irrelevant stance wholesale. (And at least one court hedged on the issue, simultaneously declaring that the content of the conversation was irrelevant but then proceeding to discuss the content as a basis for finding that the communication was not confidential. (See Defender Sec. Co., 2012 WL 5308964, at *3.))

Either way, courts typically do refer to the content of the communication in their analyses. (For example, see Weiner, 887 F. Supp. 2d at 1033; Frio, 203 Cal. App. 3d at 1489; Young, 2012 WL 5503866, at *1; and Kearney, 39 Cal. 4th at 118 n. 10)

The lesson is that content is far from irrelevant to the analysis of confidentiality; indeed, the substance of a conversation often bears directly on whether a given discussion should be kept between the parties to it.

More about the Issue

Open Questions

Although the code clearly prohibits people from electronically eavesdropping on calls involving cell phones (§ 632.5) and cordless phones (§ 632.6), newer technology poses several open questions. One of them is whether voice over Internet protocol (VoIP) communications are covered by these rules. Another is whether section 632.7 (which prohibits intercepting and recording phone conversations involving at least one cordless or cellular phone) applies to all kinds of recording. That section is not limited by its terms to electronic recordings (as section 632 is). Therefore, at least facially, section 632.7 would prohibit a handwritten stenographic record of a telephone conversation involving at least one cellular or cordless phone. However, such a slavishly literal interpretation would seem to take things too far.

Conclusions

Generally, the best practice is to inform others in advance that they are being recorded. Consent is implied when anyone participates in a conversation after being informed that it is being recorded. And consent is generally an absolute defense. But be careful: For the defense to apply, all participants must consent.

Also, bear in mind that these prohibitions apply to communications, eavesdropping, and recording that in some way involve electronic connections and transmission. Nonelectronic eavesdropping (think: ear to wall) and handwritten recording (via pencil and a notepad, for example) generally are legal.

And as noted at the outset, be wary – make that very wary – of the client who claims he or she has airtight evidence obtained by surreptitiously recording a key witness. All one needs to do is read the Coulter case (cited above) to know the end of that story. There, the fine was well into six figures and the per-incident statutory damages per section 637 have increased from $3,000 to $5,000 since the time the Coulter opinion was issued.

Premises Liability in California: General Overview

This entry offers readers with practical insight to the subject of premises liability in California, a general introduction to the legal issues relating to premises liability under California law and practice.

Evidence

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Evidence in California

For California Attorneys: Tattoos as Evidence

( January 2012 ) It’s a fact of life that people make snap judgments about each other’s character based on discretionary aspects of physical appearance such as the way we dress or style our hair. This is especially true when it comes to tattoos, whose bearers – depending on the nature of the tattoo itself – may be viewed as seedy, provocative, or downright dangerous. The consequences of such judgments can be serious for a tattooed criminal defendant. Conservative clothes or coiffure may help the accused project a squeaky-clean image in court, but the risk of prejudice persists if a tattoo peeks out from under a shirtsleeve, or when the prosecution introduces a photo of a tattoo as relevant evidence.

The problem made news a few years back when the defendant in a race-related murder trial in Florida asked the court to pay a makeup artist to paint over the swastika and barbed wire inked onto his head. His lawyer argued that his tattoos were so likely to offend, intimidate, or frighten the jurors that they would be unable to objectively weigh the evidence. The court agreed and ordered a cosmetologist to hide the offending images every morning at a $125-per-day cost to the state (State v. Ditullio, CRC-0605827-CSAWS (Fla. 6th Cir. Ct. order issued Nov. 12, 2009)).

Such tattoo coverage motions are still novel, and courts are split on whether they’re required to guarantee a fair trial. Just this year a federal judge in Nevada granted such a motion (United States v. Chandler, 2011 WL 1979713 (D. Nev. May 19, 2011)), seven months after a Utah state court denied one (State v. Allgier, Case No. 071904711 (Utah 3d Dist. Ct. order issued Oct. 12, 2010)). Lawyers arguing tattoo coverage petitions frequently invoke Estelle v. Williams (425 U.S. 501 (1976)), which held that forcing defendants to wear prison garb when they appear before a jury undermines the constitutional presumption of innocence. The Ninth Circuit refused to apply Estelle to the tattooed defendant in United States v. Quinteros (933 F.2d 1017 (9th Cir. 1991)), but it conceded that “a particular tattoo could create prejudice under certain circumstances.” No widely accepted standard has developed to govern this area of the law.

Identifying Physical Evidence

The defendant’s concern about a tattoo’s effect on a jury is quite different when the government actively seeks to introduce the defendant’s tattoo into evidence as relevant to its case. Often, when a witness testifies that the perpetrator of a crime bore a visible tattoo, the government will petition to use a defendant’s similar tattoo to identify him as the culprit. Defendants sometimes object that being forced to expose their tattoos to a jury violates the Fifth Amendment’s prohibition against compelling a criminal defendant to be a witness against himself. (U.S. Const. amend. V.) The objection fails, however, under Schmerber v. California (384 U.S. 757 (1968)), which held that the privilege against self-incrimination implicates testimony or communication, not physical evidence. Schmerber and its progeny confirm that the government’s admission of biometrics such as fingerprints, blood, DNA samples, or height and weight measurements in evidence poses no Fifth Amendment problems. As Supreme Court Justice Oliver Wendell Holmes Jr. once said, the Fifth Amendment cannot thwart something so basic as a jury’s ability “to look at a prisoner and compare his features with a photograph in proof.” (Holt v. United States, 218 U.S. 245, 25253 (1910).) Criminal prosecutions would be difficult indeed if defendants could not only remain silent but also render invisible identifying aspects of their physical selves.

If a defendant’s tattoos – or the lack thereof – tend to exculpate rather than incriminate him, then the Fifth Amendment’s inapplicability to physical evidence means that an accused can show his skin to jurors without waiving his privilege. This is precisely what happened in United States v. Bay (762 F.2d 1314, 1315 (9th Cir. 1984)), where an accused bank robber displayed his tattoos to show that eyewitnesses to the crime, whose recollections of the perpetrator made no mention of tattoos, could not have been describing him. The prosecution sought to cross-examine the defendant, but the Ninth Circuit ruled that he was entitled to refuse because his tattoo was nontestimonial evidence.

Proper foundation is key to the admissibility of all trial evidence, tattoos included. The government might want to show that a defendant’s tattoo matches a witness’s description, but it bears a threshold burden of establishing that the defendant had the incriminating tattoo on the date in question. Likewise for a defendant who would deploy his tattoo as exculpatory evidence, as in Bay. To retain his or her Fifth Amendment privilege, such a defendant would not take the stand to lay the foundation; instead, a close acquaintance, or even the tattoo artist who inked the design, might be called to testify as to the tattoo’s longevity (People v. Perez, 216 Cal. App. 3d 1346 (1990)).

More about Evidence for Lawyers

Expressive Content

Fifth Amendment self-incrimination analysis looks different when the government relies not on the fact of a tattoo but on its content. This use is common in the prosecutions of gang crimes. If a defendant’s gang membership satisfies a necessary element of the charge, an accused’s gang-related tattoo is relevant to that part of the case. Gang tattoos tend to be heavily coded, recording not only membership but rank, past criminal acts, convictions, and more. A defendant may object that such information-rich tattoos effectively confess his affiliations and activities, and that the Fifth Amendment bars such involuntary revelations. But are they really involuntary? Surely the government does not compel people to get tattooed. This was the Second Circuit’s conclusion last year in United States v. Greer (631 F.3d 608 (2d Cir. 2011)). In that case, a rented car was used in the commission of a bank robbery, but the government had difficulty tying the defendant to the vehicle. Prosecutors eventually connected the dots when they discovered that the name of the woman who had rented the car was tattooed on the defendant’s arm. The court of appeals affirmed the tattoo’s use as evidence because the trial judge did not compel the defendant to testify that he knew the woman – the man had freely tattooed her name on his arm for all to see.

If the government succeeds in entering a tattoo’s expressive content into evidence and the tattoo is susceptible to multiple interpretations, the defense can create reasonable doubt as to the government’s preferred reading. A tattoo is such a highly personal mode of expression that the credible claims of a tattoo’s daily wearer may have stronger sway with the jury than a prosecutor’s conjecture as to the defendant’s state of mind in selecting a particular design. Teardrop tattoos, for example, may for one bearer signify how many victims he has murdered and for another memorialize lost loved ones (Gonzales v. Quarterman, 458 F.3d 384 (5th Cir. 2006)).

Relevance and Prejudice

The defense’s first line of attack is to question whether the tattoo is relevant at all. In Dawson v. Delaware (503 U.S. 159 (1992)), the Supreme Court vacated a sentence in part due to the prosecution’s evidentiary use of a defendant’s “Aryan Brotherhood” tattoo. Observing that the white defendant had murdered a white victim, the Court held that the tattoo’s racist message was irrelevant to the crime in question, and its mention served only to unfairly prejudice the jury. Likewise in United States v. Thomas (321 F.3d 627, 633 (7th Cir. 2003)), the Seventh Circuit rebuked the prosecution’s use of a defendant’s gun tattoo to prove firearm possession. If the government wanted the jury to believe that a gun tattoo indicates actual ownership of a gun, the court mused, then “the mind reels at the legal and evidentiary consequences of the unicorns, dragons, mermaids, and other flights of fancy that decorate people’s bodies.”

Relevance failures such as those in Dawson and Thomas are rare. The government usually will seek to use a tattoo only if it has a logical nexus to its burden of proof, in which case a defendant might wage an attack under Federal Rule of Evidence 403 that his tattoo’s “probative value is substantially outweighed by the danger of unfair prejudice.” In United States v. Irvin (87 F.3d 860 (7th Cir. 1996)), for example, the court ordered a new trial for a man whose drug and firearm conviction was tainted by testimony about the defendant’s large gang tattoo. (The government had aimed to show that the crime was likely undertaken with a fellow gang member.) Observing that gangs suffer “poor public relations,” the Seventh Circuit concluded that the gang tattoo’s prejudicial effect overwhelmed its probative value.

Irvin’s wholesale exclusion of tattoo evidence is atypical. Courts are loath to grant such broad relief because all relevant evidence is by its nature prejudicial (see United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000)). Rule 403 motions therefore should not be treated as an all-or-nothing proposition; because of its weighty evidentiary value, a judge may not be willing to rule an inflammatory tattoo wholly inadmissible but may instead order redactions where possible. In Thomas, where the government wanted to use a photograph depicting the defendant’s gun tattoo at trial, the accused successfully negotiated with prosecutors to obscure offensive and irrelevant text from a photo of the tattoo before it was submitted to the jury (Thomas, 321 F.3d at 630).

When all else fails, the defense can request jury instructions warning against drawing improper character inferences (Woods v. McKee, 2009 WL 804148 (E.D. Mich.)). Another approach is to stipulate to whatever element of the charge the tattoo tends to establish in exchange for an agreement that its prejudicial content will not be presented to the jury. However, whether to accept or decline such a stipulation offer is the prerogative of the prosecution, which may prefer the narrative power of an evidentiary presentation over a “naked admission.” (Parr v. United States, 255 F.2d 86, 88 (5th Cir. 1958).)

Development of Evidence for Attorneys

Fourth Amendment Concerns

The Los Angeles Times recently detailed the LAPD’s routine practice of asking to photograph the tattoos of detainees held for minor traffic violations. The justification for the practice is not only to record the arrestee’s physical characteristics in furtherance of the original charges. The city, plagued by gang activity, also cross-references information gleaned from tattoo photos against its files in unsolved investigations. In one such review, officers where shocked to find that a detainee’s tattoo depicted the scene of a violent and long-unsolved liquor store shooting. However effective, this practice raises Fourth Amendment concerns.

It goes without saying that the police could not walk up to ordinary citizens without a warrant or absent exigent circumstances and examine them for tattoos under their clothes. But the Fourth Amendment applies differently with regard to convicted prisoners, parolees, and arrestees due to legitimate law enforcement purposes endorsed by courts. An arrestee can be constitutionally fingerprinted and photographed for identification purposes, and the government’s professed need to also record an arrestee’s scars, tattoos, and other markings would seem to fit this rationale (United States v. Kincade, 379 F.3d 813 (9th Cir. 2004)). Constitutionality, however, is not a foregone conclusion. It depends on how a contested search is conducted. Search and seizure jurisprudence does not rely on per se rules but rather employs a four-factor reasonableness test, developed by the Supreme Court in Bell v. Wolfish (441 U.S. 520 (1979)), that evaluates a search’s justification, scope, location, and manner.

The Eighth Circuit had occasion in Schmidt v. City of Bella Vista (557 F.3d 564 (8th Cir. 2006)) to apply the Bell test in a tattoo case where a woman was arrested for underage alcohol possession. The police photographed her tattoo during booking, and she later challenged the constitutionality of the search. The police answered that the search was warranted because the tattoo could be used to identify the arrestee in her subsequent prosecution. Implementing the Bell test, the Eighth Circuit upheld the trial court’s determination that the tattoo search was reasonable, and therefore constitutional, under the Fourth Amendment. As to the scope, place and manner of the intrusion, the court accepted the prosecution’s arguments that the police required the woman to disrobe only to the extent necessary to gain a clear view of her tattoo, conducted the search in a private area of the station, and did so without any physical harassment

The LAPD’s routine searches are distinguishable from the Schmidt search in that the city uses tattoo information not just in an immediately ensuing prosecution but to link arrestees to other offenses. This more ambitious use should have little impact on the constitutionality of the practice, however, as similar use is made of fingerprints, mugshot photos, and DNA databases; courts have repeatedly upheld the constitutionality of collecting and using such data from convicted prisoners and arrestees (United States v. Pool, 621 F.3d 1213 (9th Cir. 2010)). Nor does the LAPD’s practice differ much from running a search of license plates during a traffic stop to check for outstanding warrants. So long as an individual’s identifying information comes into law enforcement’s possession through lawful means, the data’s use in other contexts is permissible.

Tattoos are extremely popular in California, as everyday people watching quickly confirms. However, it is unlikely that most people, when getting inked, give much forethought to how their tattoo might become a relevant in a case against them. A working knowledge of the emerging legal trends in this area is therefore a must for any litigator, especially criminal law practitioners.

For California Attorneys: Evidence

There is more information about this subjet in the California legal portal in these entries: DNA Sealing Evidence Web Evidence Trial Court Audio Recording

California Evidence

This section covers California-specific basic information on evidence and related topics. Many of California's laws on evidence are similar to those of other U.S. states, with some differences (in some cases, minor differences). California evidence laws on evidence are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on evidence, which is a basic matter in California law.

Evidentiary Matters Generally

Welcome to the California legal encyclopedia's introductory part covering the evidentiary matters generally laws of California, with explanations of the various implications of evidentiary matters generally in California and the statutes enforced in California in connexion with evidentiary matters generally. This introductory section covers case law related to evidentiary matters generally in California, the legal approach on evidentiary matters generally in the United States and related topics. The information below provides an California-specific general overview of the legal regime of evidentiary matters generally in California.

Evidentiary Matters Generally in relation to Criminal Law & Procedure

This section analizes the legal issue of evidentiary matters generally in this context, and provides information on its relation with Evidentiary Matters Generally.

Evidence and Witnesses in California: General Overview

This entry offers readers with practical insight to the subject of evidence and witnesses in California, a general introduction to the legal issues relating to evidence and witnesses under California law and practice.

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Prosecution

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Prosecution in California

For California Attorneys: Malicious Prosecution

( August 2000 ) After rejoicing over a civil verdict for the defense, defense lawyers often hear their clients ask, “Now, can we sue them for malicious prosecution?” Despite the impulse of the successful defendant to sue a perceived persecutor, malicious prosecution lawsuits do not immediately follow every defense verdict, because meeting the burden of proof on the elements of malicious prosecution is very difficult.

Malicious prosecution continues to be a disfavored cause of action. Crowley v Katleman (1994) 8 C4th 666, 680; Babb v Superior Court (1971) 3 C3d 841, 847. Although most litigators are generally familiar with the concept of malicious prosecution, recent case law continues to define — and sometimes limit — the elements of the tort.

The Parties

In malicious prosecution cases, the players are often confusing because the plaintiff in the first case becomes the defendant in the second case and vice versa. The first suit is referred to as the underlying case (UC), in which the UC plaintiff unsuccessfully sued the UC defendant, who then brings the suit for malicious prosecution (MP). Thus, the UC plaintiff and the MP defendant are the same, the UC defendant and the MP plaintiff are the same, and the UC plaintiff’s attorney and the MP attorney-defendant are the same.

The Elements

The elements of malicious prosecution arising out of a civil case are as follows: (1) The MP defendant initiated or was actively instrumental in the commencement or maintenance of a civil proceeding against the MP plaintiff, (2) The civil proceeding against the MP plaintiff terminated in the MP plaintiff’s favor, (3) The MP defendant acted without probable cause in commencing or maintaining the civil proceeding, (4) The MP defendant acted with malice, and (5) The malicious actions of the MP defendant caused the MP plaintiff to suffer injury, damage, loss, or harm. California Jury Instructions-Civil (BAJI) 7.30 (West Pub., 1995); see also, Judicial Council of California Civil Jury Instructions (CACI) 1501 (West Pub., 2003). The elements of favorable termination, lack of probable cause, and malice are the focal points of most published opinions on malicious prosecution.

Probable Cause

To obtain summary adjudication on a cause of action, or summary judgment if only one cause of action is alleged, a defendant need only defeat one element of the claim. CCP §437c(o)(2). Because probable cause is to be determined by the court based on an objective standard rather than a subjective standard, Sheldon Appel Co. v Albert & Oliker (1989) 47 C3d 863, 885, a summary judgment motion on probable cause often is the MP defendant’s first line of attack. The probable cause standard is whether any reasonable attorney would have thought the claim tenable, or not frivolous. A claim is frivolous only if any reasonable attorney would agree that it is totally and completely without merit. Sheldon Appel, 47 C3d at 885-886.

Unlike a defendant, a plaintiff cannot seek summary adjudication on an element of a cause of action, because such a motion must be directed to an entire cause of action, an affirmative defense, or an issue of duty. CCP §437c(f), (o)(1). Hence, an MP defendant’s summary judgment motion on the issue of probable cause should not risk a countermotion being granted for the MP plaintiff by the trial court on the same issue.

The UC plaintiff’s loss of the underlying case does not automatically establish a lack of probable cause, nor does it raise such an inference. Nicholson v Lucas (1994) 21 CA4th 1657, 1670; Klein v Oakland Raiders, Ltd. (1989) 211 CA3d 67, 82 n7. Nevertheless, rulings in the underlying case can establish the existence of probable cause for the MP case. For example, a victory at trial, even if reversed on appeal, will establish probable cause unless it was procured by fraud. Cowles v Carter (1981) 115 CA3d 350, 355-59. Similarly, denial of the UC defendant’s motion for summary judgment in an earlier case normally establishes there was probable cause to sue, thus barring a later malicious prosecution suit, unless, for example, the summary judgment motion was denied because of materially false evidence. Roberts v Sentry Life Ins. (1999) 76 CA4th 375, 384; see also, Wilson v. Parker, Covert & Chidester, (2002) 28 C4th 811 (denial of anti-SLAPP motion on merits precludes later MP case).

Although the element of probable cause is an issue of law, it does have both a factual and a legal component. Leonardini v Shell Oil Co. (1989) 216 CA3d 547, 570 (facts were not disputed, case turned on legal question). A lack of probable cause may arise from an insufficiency in the facts or the law. Puryear v Golden Bear Ins. Co. (1998) 66 CA4th 1188, 1195.

When a plaintiff is put on notice that a fundamental element of its case is disputed, to avoid potential liability for malicious prosecution it should not proceed without sufficient evidence to support a favorable judgment on that element, or at least information supporting an inference that the evidence can be obtained. In one recent MP case the underlying case was based on a guarantee. However, the purported guarantor claimed his signature was a forgery and provided a reasonable explanation of who committed the forgery and how that person obtained his personal information. The underlying case was held to be untenable because the UC plaintiff had no objective evidence to establish otherwise. Arcaro v Silva and Silva Enterprises Corp. (1999) 77 CA4th 152, 158-159.

More about Prosecution for Lawyers

Malice

The issue of malice is determined, in part, by evidence that the UC plaintiff wished to vex, annoy, or injure the UC defendant. It does not necessarily require that the UC plaintiff be angry or vindictive or bear any actual hostility or ill will toward the UC defendant. Instead, it means an attitude or state of mind that actuates the commission of an act for some improper or wrongful motive or purpose. BAJI 7.34; see also, CACI 1504. Although hatred or ill will by the UC plaintiff toward the UC defendant is unnecessary, it may be persuasive to prove motive.

Malice cannot be inferred from a lack of probable cause. Downey Venture v LMI Ins. Co. (1998) 66 CA4th 478, 498 and n29; Leonardini, 216 CA3d at 567. It is improper to instruct the jury that it may infer malice from a lack of probable cause, even if the judge in the MP case finds as a matter of law that there was no probable cause for the underlying case. The MP defendant may even be entitled to a specific jury instruction that the jury may not infer malice from a lack of probable cause.

Insurance Coverage

The Downey Venture case is also significant because the dispute over which it arose was whether insurance coverage for a malicious prosecution claim existed under a comprehensive general liability (CGL) policy. The insurance policy in question specifically covered personal injury, which was defined to include “malicious prosecution.” Nevertheless, the court held that under Insurance Code section 533, which precludes insurance coverage (or indemnification) for a willful act of the insured, there can be no indemnification for malicious prosecution liability, since it is a tort that constitutes a willful act. 66 CA4th at 506. Significantly, section 533 was held not to defeat the duty to defend. 66 CA4th at 509. Thus, an insurer that issues a CGL policy with this “personal injury” language must provide a defense to a malicious prosecution suit, even though it will not pay a judgment or be obligated to pay a settlement.

Favorable Termination

The termination of a prior civil proceeding must reflect on the merits of the UC plaintiff’s claim to constitute a favorable termination for purposes of a cause of action for malicious prosecution. For example, malicious prosecution does not lie for the termination of an action by a statute of limitations defense, which is technical or procedural. Lackner v La Croix (1979) 25 C3d 747, 750-51. Termination must reflect on the UC defendant’s innocence of the alleged wrongful conduct. BAJI 7.32. A favorable termination must apply to the entire UC lawsuit, although lack of probable cause can be found as to a single theory of liability. Crowley, 8 C4th at 686, or a portion of claimed damages, Citi-Wide Preferred Couriers v Golden Eagle Ins. Corp., 2003 Cal. App. LEXIS 1957 (2d Dist., 12/30/03).

Nevertheless, a favorable termination may not give rise to a successful MP claim in certain types of civil proceedings that are not qualifying “prior actions.” For example, it may have been a subsidiary piece of ongoing litigation rather than an independent action. Merlet v Rizzo (1998) 64 CA4th 53, 59-60. Another court refused to allow an MP action based on the outcome of an arbitration because the private contractual arbitration was not a “prior action.” Sagonowsky v More (1998) 64 CA4th 122, 130, 134. However, a more recent holding clarifies that a private arbitration proceeding does not necessarily preclude an MP action. The critical inquiry is what the parties intended when they entered into the agreement providing for private arbitration. Brennan v Tremco, Inc. (2000) 78 CA4th 391, 395 (holding that triable issue of material fact existed on the issue of intent).

Development of Prosecution for Attorneys

The Advice of Counsel Defense

The MP defendants are aligned in their defense of most elements in a malicious prosecution case, but that alignment can diverge significantly when the MP defendant asserts the “advice of counsel” defense. This defense is an issue that may be ripe for new law, particularly with regard to the timing of raising the defense.

Under the advice of counsel defense, the UC plaintiff must have sought in good faith the advice of an attorney before commencing or maintaining the civil proceeding against the UC defendant. The UC plaintiff also must have made a full, fair, and complete disclosure to the attorney of all the pertinent and material facts of which the UC plaintiff had knowledge tending to prove or disprove the civil allegations and thereafter acted on the advice of the attorney and in the belief of the UC defendant’s civil liability for the alleged wrong. BAJI 7.36; see also, CACI 1505.

The most significant effect of the advice of counsel defense is that it necessarily waives the attorney-client privilege with regard to communications between the client and attorney on the advice given and relied on. Transamerica Title Ins. Co. v Superior Court (1987) 188 CA3d 1047, 1054. The advice of counsel defense goes to the element of probable cause and negates an essential allegation of the complaint. State Farm Mutual Auto. Ins. Co. v Superior Court (1991) 228 CA3d 721. Therefore an MP defendant strategically would prefer to raise the advice of counsel defense only after his or her summary judgment motion on the issue of probable cause is brought and denied. If the motion is successful, the advice of counsel defense becomes moot.

As a result of this strategic preference, the timing of raising the defense can create a discovery complication because much discovery typically is conducted before the probable cause summary judgment motion is filed. If the advice of counsel defense is asserted early, discovery will include attorney-client communications on the advice given and relied on. Discovery will not include attorney-client communications before the advice of counsel defense is asserted. When the defendant asserts it after a summary judgment motion on probable cause fails (or is successful but reversed on appeal), a new wave of discovery will be triggered, some of which may be repetitive.

In order to force the MP defendant to waive the attorney-client privilege early, the MP plaintiff may serve an interrogatory asking if the MP client-defendant is relying on the advice of counsel defense. On receiving a response such as “not at this time, but defendant reserves the right to do so,” the MP plaintiff may file a motion to compel the MP client-defendant to elect.

The MP plaintiff may lose that motion or elect not to press the issue in the first place. Then, after the summary judgment motion is denied and the MP defendant seeks to raise the defense, the MP plaintiff may argue that the advice of counsel defense is an affirmative defense that had to be raised in the answer or be waived. CCP §431.30; Bertero v Nat’l Gen’l Corp. (1974) 13 C3d 43, 53 (advice of counsel is affirmative defense); Walsh v West Valley Mission Comm. College Dist. (1998) 66 CA4th 1532, 1546 (matters not responsive to essential allegations of the complaint must be raised in the answer). See, Weil & Brown, California Practice Guide, 1 Civil Procedure Before Trial §6:430 (The Rutter Group, 1983 & Supp. 1999).

In contrast to the MP plaintiff’s argument, the MP client-defendant will maintain that the defense is raised by a general denial and can be reserved (usually in discovery responses) and asserted at any time before trial. Since an advice of counsel defense negates an element of plaintiff’s cause of action, it does not constitute new matter, need not be pleaded as an affirmative defense, and is raised by a general denial. State Farm, 228 CA3d at 725-27; Albertson v Raboff (1960) 185 CA2d 372, 386 (holding that the advice of counsel defense may be raised by a general denial in the answer); 1 Civil Procedure Before Trial §6:438.

As a practical matter, the issue may never reach the California Supreme Court. An MP plaintiff typically welcomes the assertion of the defense, even at a later date, because the concomitant waiver of the attorney-client privilege permits the MP plaintiff to obtain otherwise nondiscoverable communications.

Details

The Unclean Hands Defense

The defense of unclean hands, which precludes equitable remedies for a tainted plaintiff, applies quite broadly to MP cases. The MP plaintiff in a recent case argued that even if the defense of unclean hands applied, the only relevant misconduct was that which had affected the MP defendant’s decision to file the underlying case. The court of appeal rejected this argument and permitted broad evidence of any misconduct either in the particular transaction or connected to the subject matter of the litigation that affected the equitable relations between the litigants. Kendall-Jackson Winery Ltd. v Superior Court (2000) 76 CA4th 970, 974.

The unclean hands defense necessarily is fact-intensive, which may render it inappropriate at the summary judgment stage. Nevertheless, this recent opinion may have a dramatic effect on the unclean hands defense during discovery and at trial. Specifically, the MP plaintiff’s prior conduct can be put on trial so that the evidence of purported wrongdoing will not be one-sided. However, MP defendants must be cautious. By attacking the MP plaintiff they may bolster the MP plaintiff’s evidence of malice by suggesting to the jury that the MP defendant continues to attack the MP plaintiff, in addition to lacking probable cause in the MP defendant’s prior unwarranted attack on the MP plaintiff in the underlying case. To be strategically safe, the evidence of unclean hands would need to be sufficiently heinous that a jury would conclude that any animosity that exists between the parties was caused by the MP plaintiff and not by the MP defendant. Unfortunately, there is no formula by which to gauge the sufficiency of that evidence.

Proceedings Before Prosecution

Welcome to the California legal encyclopedia's introductory part covering the proceedings before prosecution laws of California, with explanations of the various implications of proceedings before prosecution in California and the statutes enforced in California in connexion with proceedings before prosecution. This introductory section covers case law related to proceedings before prosecution in California, the legal approach on proceedings before prosecution in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings before prosecution in California.

Proceedings Before Prosecution in relation to Criminal Law & Procedure

This section analizes the legal issue of proceedings before prosecution in this context, and provides information on its relation with Proceedings Before Prosecution.

Proceedings to Commence Prosecution

Welcome to the California legal encyclopedia's introductory part covering the proceedings to commence prosecution laws of California, with explanations of the various implications of proceedings to commence prosecution in California and the statutes enforced in California in connexion with proceedings to commence prosecution. This introductory section covers case law related to proceedings to commence prosecution in California, the legal approach on proceedings to commence prosecution in the United States and related topics. The information below provides an California-specific general overview of the legal regime of proceedings to commence prosecution in California.

Proceedings to Commence Prosecution in relation to Criminal Law & Procedure

This section analizes the legal issue of proceedings to commence prosecution in this context, and provides information on its relation with Proceedings to Commence Prosecution.

False Imprisonment and Malicious Prosecution in California: General Overview

This entry offers readers with practical insight to the subject of false imprisonment and malicious prosecution in California, a general introduction to the legal issues relating to false imprisonment and malicious prosecution under California law and practice.

Resources

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Resources

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Religion

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Religion in California

For California Attorneys: Religious Divide

( June 2002 ) Within several weeks of meeting one another, David and Martha knew they were very much in love. But David was Jewish and Martha was Christian. At first this difference did not seem like such a big deal. As their relationship grew more serious, however, the religious differences became an issue. Martha agreed to convert to Judaism and raise their children as Jews. They even got lawyers to draft an agreement detailing that their prospective children’s religious education and upbringing would be performed according to the practices and beliefs of Reform Judaism. Nevertheless, when David and Martha eventually separated, Martha returned to the Christian church and enrolled their two children in religious school at her church.If David asks a California court for an injunction to keep his children out of a Christian school or church, he will probably lose, unless he convinces the court that exposure to both religions will substantially harm the children.

Judicial InterventionIn general, courts have been unwilling to interfere with a child’s religious training because courts refuse to get entangled in religious matters. In re Marriage of Murga (1980) 103 CA3d 498 (refusal to restrain noncustodial parent from sharing religious beliefs); In re Marriage of Mentry (1983) 142 CA3d 260 (invalidating religious restraining order). To some courts, “the question of a child’s religion must be left to the parents even if they clash [because] a child’s religion is no proper business of judges.” Abbo v Briskin (Fla App 1995) 660 So2d 1157, 1161. (However, if David, in the hypothetical, asks the court for custody on days that will let him take the children to temple for Jewish religious training, he will probably get them.)Courts will intervene in parental choices about raising children, including religious training, when it is necessary to prevent harm to the child. Prince v Massachusetts (1944) 321 US 158 (Jehovah’s Witness violated child labor law by taking child to preach on public highway); Rogers v Rogers (Fla App 1986) 490 So2d 1017 (mother awarded custody subject to ceasing contact with religious cult); Jehovah’s Witnesses v King County Hospital (WD Wash 1967) 278 F Supp 488, affd (1968) 390 US 598 (permitting blood transfusion over parents’ religious objection).A majority of courts follow the standard of Wisconsin v Yoder (1972) 406 US 205, 230, which requires a showing of substantial mental or physical harm to the child, or to public safety, peace, order, or welfare, in order to encroach on parental authority in matters of religious upbringing. Some courts have held that in certain cases the emotional stress of being exposed to conflicting religions constitutes sufficient harm. See, for example, LeDoux v LeDoux (Neb 1990) 452 NW2d 1; Bentley v Bentley (NY App 1982) 448 NYS2d 559. While harm to the child is the most important factor to consider in the enforcement of a religious upbringing clause, courts have been especially reluctant to require a parent to provide religious training contrary to the parent’s beliefs or practices. Schwarzman v Schwarzman (NY Sup Ct 1976) 388 NYS2d 993 (refusing to order practicing Catholic mother to raise children Jewish despite prenuptial agreement); People ex rel Portnoy v Strasser (1952) 303 NY 539 (failure to provide religious training is not reason to change custody). But see Ross v Ross (NY Sup Ct 1956) 149 NYS2d 585 (enforcing prenuptial agreement and ordering non-Catholic mother to continue Catholic training).Agreements about religious upbringing have thus met with varied responses. Some courts have upheld them. See Gottleib v Gottleib (Ill App 1961) 175 NE2d 619 (enforcing divorce decree that incorporated agreement between parties to raise children Jewish); Shearer v Shearer (NY Sup Ct 1947) 73 NYS2d 337; Ramon v Ramon (Dom Rel Ct 1942) 34 NYS2d 100; In re Sohn (NY Surr Ct 1986) 507 NYS2d 969 (adoption vacated where adoptive mother recanted promise to raise children Jewish). The majority have not. See, for example, In re Marriage of Weiss (1996) 42 CA4th 106; Denton v Jones (Kan 1920) 193 P 307 (ignoring promise made to deceased mother); Sotnick v Sotnick (Fla App 1995) 650 So2d 157; Wood v Wood (Del 1961) 168 A2d 102; McLaughlin v McLaughlin (Conn Super Ct 1957) 132 A2d 420; Hackett v Hackett (Ohio App 1958) 97 A2d 419.

More about Religion for Lawyers

The Zummo caseIn the leading modern case, Zummo v Zummo (Pa App 1990) 574 A2d 1130, a couple orally agreed prior to marriage that any children they had would be raised as Jews. After their separation, the husband wanted to take his three children to Roman Catholic services while they were in his custody. In her divorce complaint, which included a request for custody, the wife objected to this on the ground that it would disrupt their formal Jewish training and that exposing them to a second religion would confuse them. The trial court restricted the husband from taking the children to Roman Catholic services but the appellate court reversed, holding that the trial court should not have relied on the prenuptial agreement because it was vague, entangled the court in religion, and unconstitutionally limited the parents in religious matters. 574 A2d at 1144. The majority also held that the trail court erred in deciding that the children would be harmed by exposure to two religions, absent persuasive evidence of substantial harm. 574 A2d at 1154-1157. After all this, the court affirmed the portion of the trial court’s order requiring the Catholic father to deliver the children to synagogue for (Jewish) Sunday School. 574 A2d at 1157.

The Weiss and Kendall casesThe sole California decision in this area, In re Marriage of Weiss (1996) 42 CA4th 106, rev den, cert den 519 US 1007, is factually similar to Zummo. The prospective marriage partners were a Jew and a Christian who executed a written prenuptial declaration in which she agreed to raise children of the marriage as Jewish. When the parents separated, the wife enrolled the child in her church’s Sunday school and summer camp. The husband sought an injunction to restrain her from allowing their child to participate in religious activity inconsistent with the declaration. The trial court denied the requested injunction, and the court of appeal affirmed, following Zummo. It refused to enforce the prenuptial agreement and held that there is no presumption that exposing a child to two different religions constitutes harm. The father failed to present evidence of substantial harm. 42 CA4th at 111-116. A later Massachusetts case, Kendall v Kendall (1997) 687 NE2d 1228, had a slightly different outcome. The trial court enjoined a noncustodial parent from exposing his children to fundamentalist Christianity contrary to the prenuptial agreement to raise the children Jewish, based on demonstrative evidence in a report from the custody evaluator to the effect that allowing the children to be exposed to the father’s new “hellfire” beliefs would be substantially damaging to the children. However, instead of analyzing the validity of the agreement, the Kendall opinion went directly to the question of whether exposing the children to two different religions had met the required standard of harm. The court ultimately required the father to limit sharing certain aspects of his beliefs that would “substantially promote alienation” from the other parent, an Orthodox Jew. The father was directed not to take the children to his church services or Christian Sunday school, although they could participate in “family” celebrations of Christmas and Easter. The court claimed that it avoided impermissible entanglement in religion by looking only at the emotional or physical harm to the children.

Recent DevelopmentsSince Kendall, law review commentors have begun to question the position that prenuptial religious provisions should not be enforced. See Rocha, Getting Married: Should Religious Upbringing Antenuptial Agreements Be Legally Enforceable? (2000) 11 J Contemp Legal Issues 145; Strauber, Note, A Deal Is a Deal: Antenuptial Agreements Regarding the Religious Upbringing of Children Should Be Enforceable (1998) 47 Duke LJ 971, 982-983.Recent California developments, when read and analyzed together, signal that despite Weiss, “a more favorable judicial climate lies ahead regarding the allowable scope of premarital agreements as well as the factual circumstances under which they will be enforced.” Wasser, Prenuptial Disagreements (December 2000) Los Angeles Lawyer p26. For example, in 2000, the California Supreme Court held in a 6-to-1 decision that “no public policy is violated by permitting enforcement of a [prenuptial] waiver of spousal support executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel regarding their rights and obligations as marital partners at the time they executed this waiver.” In re Marriage of Pendleton & Fireman, 24 C4th 39, 53-54.At the same time, another California Supreme Court decision, In re Marriage of Bonds (2000) 24 C4th 1, strengthened the validity and enforceability of prenuptial agreements. The court enforced a prenuptial agreement providing that each party waived any right to the other’s earnings and accumulations from personal services rendered during marriage, holding the agreement was entered into voluntarily despite the fact that the wife did not have independent counsel. 24 C4th 39, 29-30.Neither Pendleton nor Bonds had occasion to clarify how adults’ freedom to contract extends to rights concerning children of the marriage. Family Code section 1612 expressly permits parties to make prenuptial agreements on specified matters and also as to “[a]ny other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” Fam C §1612(a)(7); but see Fam C §1620.

Development of Religion for Attorneys

New StatutesThe California Legislature swiftly reacted to Bonds and Pendleton in amending sections of the Family Code to tighten the requirements for valid and enforceable prenuptial agreements. Effective January 1, 2002, amended Family Code section 1615 now requires a court to make certain affirmative findings (mostly going to informed and voluntary consent) before upholding any challenged prenuptial agreement. This reverses prior law, which put the burden of setting aside a premarital agreement on the person challenging it. In response to Pendleton, the new statute makes any premarital agreement regarding spousal support unenforceable unless the party against whom enforcement is sought had independent counsel. However, a spousal support provision does not become enforceable just because the party had independent counsel. Fam C §1612(c). There is a new express factor in creating an enforcement prenuptial agreement. The new statutes permit the court to set aside a prenuptial agreement for being “unconscionable,” without defining that term in this context. Fam C §1612(c) (unconscionable at time of enforcement); Fam C §1615(a)(2) (unconscionable at time of execution).However, if new premarital agreements are executed in compliance with these safeguards for voluntary informed consent (which include a seven-day waiting period and potentially three new documents: a written waiver of independent legal counsel, a written explanation of the rights and obligations being given up, and a signed receipt for that explanation identifying the provider), and if they avoid being “unconscionable,” they should be enforceable-even if they affect the children’s upbringing.

Constitutional PrinciplesAlthough prospective spouses have the freedom to contract on almost any right, prenuptial agreements must also be constitutionally sound before courts will enforce them. According to Weiss and Zummo, prenuptial agreements regarding a child’s religious upbringing are not legally enforceable because the parent’s inalienable right to change religion and to share those beliefs with offspring may not be bargained away. 42 CA4th at 117-118; 574 A2d at 1148. Critical analysis warrants a second look.A valid prenuptial agreement with religious provisions may be enforced like a secular contract if it does not involve constitutional conflicts. At least one court has enforced by injunction a religious marriage contract by which the parties agreed to bring any marital dispute before a Jewish tribunal. This provision was important because if the husband refused to obtain a Jewish divorce, under Orthodox Judaism the wife could not remarry even if he obtained a civil divorce. The highest New York court said it found nothing in law or public policy to prevent judicial recognition and enforcement of the secular terms of such an agreement. Avitzur v Avitzur (1983) 58 NY2d 108. If parents are legally entitled to exercise control over their children’s upbringing, it follows that they should be able to enter into agreements regarding their children’s religion as they would their own. The U.S. Supreme Court has articulated a doctrine of parental primacy that is supported by constitutional principles, including the right of parents to bring up children and control their education. In Wisconsin v Yoder, 406 US 205, the Supreme Court upheld the right of Amish parents to withdraw their children from public schools after the eighth grade to educate them according to Amish beliefs, on the basis of First Amendment protections and “the fundamental interest of parents, as contrasted with that of the State.” 406 US at 232.The recent United States Supreme Court decision in Troxel v Granville (2000) 530 US 57 reemphasized the doctrine that the parents have primary control of their children’s upbringing. It found a Washington State law unconstitutional as applied when the court granted grandparents more time with their grandchild than was desired by a parent whose fitness was not questioned. The doctrine of parental primacy and the constitutional right of parents to make decisions about their children’s upbringing is now before the California Supreme Court. In re Marriage of Harris, No. S101836 (rev granted January 3, 2002). The court of appeal held that the fundamental right to parent is constitutionally protected, and that application of the California grandparent visitation rights statute violated the mother’s due process rights to make decisions concerning care, custody, and control of her child. 92 CA4th 499. In practice, a prenuptial “religious upbringing” clause has never been enforced in California. However, an analogy can be drawn to prenuptial spousal support waivers, which also were not enforceable in California until a few years ago, although they were much in demand by clients before then. See In re Marriage of Pendleton & Fireman, 24 C4th 39; see also Fam C §1612(c). As a matter of good practice, when clients desire a religious upbringing clause in a prenuptial agreement, the prudent family law attorney will warn the clients in writing that such a prenuptial clause may not be enforceable; however, its inclusion is nevertheless worthwhile because it reflects the intentions of the parties, and the law may change. It is time to revisit these significant personal issues so that proper constitutional guidelines can be established to inform prospective marital partners who knowingly, thoughtfully, and voluntarily wish to privately order their family life. Undoing agreements years after children are born does nothing to foster family harmony, undercuts the sanctity of contract, and erodes the best interests of both the parents and the children involved.

Religious Workers

Welcome to the California legal encyclopedia's introductory part covering the religious workers laws of California, with explanations of the various implications of religious workers in California and the statutes enforced in California in connexion with religious workers. This introductory section covers case law related to religious workers in California, the legal approach on religious workers in the United States and related topics. The information below provides an California-specific general overview of the legal regime of religious workers in California.

Religious Workers in relation to Immigration Law

This section analizes the legal issue of religious workers in this context.

Religious Organizations in California: General Overview

This entry offers readers with practical insight to the subject of religious organizations in California, a general introduction to the legal issues relating to religious organizations under California law and practice.

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Damages

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Damages in California

For California Attorneys: Damages After Sargon

( June 2014 ) (See also Expert Testimony) In today’s litigation environment, experts play an increasingly important role, particularly when the amount of damages is disputed.

Experts are invaluable for explaining complicated and technical evidence – but there is also a risk they could mislead the trier of fact if they offer opinion testimony based on improper techniques and methods.

More than 50 years ago, Second Circuit Judge Henry Friendly, drawing on earlier precedent, recognized that ” ‘a judge, in his efforts to prevent the jury from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty reasoning …, [must] exclude matter which does not rise to a clearly sufficient degree of value. …’ These comments are especially pertinent to an array of figures conveying a delusive impression of exactness in an area where a jury’s common sense is less available than usual to protect it.” (Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 912 (2d Cir. 1962))

Two years ago, the California Supreme Court considered this very issue and empowered the state’s trial court judges to serve as “gatekeepers” to exclude expert evidence that is improper, unreasonable, or speculative. (See Sargon Enters., Inc. v. Univ. of S. Cal., 55 Cal. 4th 747 (2012))

Historical Context

A federal appellate court first addressed the admissibility of novel scientific evidence in 1923. The Federal Circuit held that such evidence was inadmissible until the proponent established that the methodology, technique, or device had “general acceptance” in the relevant field. (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).) The Frye test became the standard for admissibility of novel scientific technique and methodology – including related expert testimony – throughout the United States.

California eventually followed suit, adopting what became known as the Kelly-Frye test. (See People v. Kelly, 17 Cal. 3d 24 (1976).) In doing so, the California Supreme Court expressly recognized the Frye test’s low bar to admissibility, requiring only that the proponent of the novel scientific evidence demonstrate a consensus within the relevant scientific community. The Kelly ruling, like the Frye decision before it, was limited to evidence based on novel scientific techniques and methods. In contrast, expert opinion testimony that did not involve a new scientific technique or method continued to be governed by general rules of evidence. (See People v. Stoll, 49 Cal. 3d 1136 (1989))

These rules remained the law until the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)), holding that the Federal Rules of Evidence supersede the Frye standard. The Daubert court concluded that the trial judge has an obligation to act as a gatekeeper to ensure that the expert’s testimony is reliable based on three nonexclusive factors: whether the opinion was being developed solely for litigation; whether it had been independently tested in the scientific community; and the potential for error. (Daubert, 509 U.S. at 592-93)

The high court later clarified that the gatekeeper standard provides a single admissibility rule controlling the admissibility of all expert testimony, regardless of whether it is based on new scientific technique or methods. (See Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999))

The Daubert case was a watershed, but it governed only proceedings in federal courts because it was decided under the Federal Rules of Evidence. California lawyers and judges began to ponder whether the same approach should govern expert testimony in state court. Indeed, after Daubert a variety of approaches appeared in published decisions. (See People v. Leahy, 8 Cal. 4th 587 (1994); Roberti v. Andy’s Termite and Pest Control, Inc., 113 Cal. App. 4th 893 (2003); and In re Lockheed Litig. Cases, 115 Cal. App. 4th 558 (2004).)

More about Damages for Lawyers

Enter Sargon

Eventually, a dispute between a dental implant company and the University of Southern California brought the issue to the California Supreme Court. Sargon Enterprises had patented a dental implant for use in reconstructive surgery. In 1996 Sargon contracted with USC’s School of Dentistry to conduct a five-year clinical study of the implant. In 1999 Sargon sued, claiming that USC had botched the clinical trial, thereby preventing the company from reaping up to a billion dollars in profits. (Sargon, 55 Cal. 4th at 753.) A jury found that USC had indeed breached its contract with Sargon, but when it came time to determine damages, the trial judge granted USC’s motion to exclude testimony by Sargon’s damages expert because the claimed lost profits were not sufficiently foreseeable. Unable to consider that evidence, the jury awarded Sargon $433,000 in compensatory damages. Sargon appealed, and the court of appeal reversed, finding that the trial court should not have excluded the expert testimony on the ground of foreseeability. The case was remanded for a new determination of the company’s lost profits. (55 Cal. 4th at 754-55)

At the retrial, USC again moved to exclude the company’s expert testimony. After an eight-day evidentiary hearing, the trial court once again excluded the evidence. The judge determined that the information used by the expert in calculating Sargon’s lost profits was not of the kind reasonably relied upon by experts in the field. The judge also noted that the expert’s methodology was fundamentally unreliable. (55 Cal. 4th at 755-67)

Second Appeal

Sargon appealed again, and won another reversal. This time the court of appeal found that the trial judge had abused his discretion in excluding the expert testimony. The considerations expressed by the trial judge, said the appellate justices, should have gone to the weight of the expert opinion rather than to its admissibility; the issues of reasonableness and reliability were properly for the jury, not the trial judge. (55 Cal. 4th at 767-68.) The university petitioned the California Supreme Court for review. The petition was granted in 2011, setting the stage for a definitive ruling on the standard to be applied in state court for the admissibility of expert opinion.

In a unanimous ruling in November 2012 authored by Justice Ming Chin, the state Supreme Court undertook a detailed examination of the expert’s testimony and his underlying methodology. Holding that the trial court properly excluded the testimony, Justice Chin concluded: “[T]he trial court has the duty to act as a gatekeeper to exclude speculative expert testimony. Lost profits need not be proven with mathematical precision, but they must also not be unduly speculative.” (Sargon, 55 Cal. 4th at 753)

In support of that conclusion, the justices first examined section 801(b) of the California Evidence Code, which states that an expert’s opinion testimony must be based on matter “that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” The court said that an expert’s opinion may not be based on assumptions of fact without evidentiary support, or on “speculative or conjectural factors.” The court further noted that “[e]xclusion of expert opinions that rest on guess, surmise or conjecture … is an inherent corollary to the foundational predicate for admission of the expert testimony: Will the testimony assist the trier of fact to evaluate the issues it must decide?” (55 Cal. 4th at 770.) Turning its attention to Evidence Code section 802, the court found that the code “expressly permits the court to examine experts concerning the matter on which they base their opinion before admitting their testimony.” (55 Cal. 4th at 771)

Read together, sections 801 and 802 empower a trial court to vet expert testimony. Trial judges can exclude expert opinion testimony if it is:

– based on material that cannot reasonably be relied on;

– grounded in reasons that are unsupported by the material on which the expert relies; or

– “speculative.”

(See 55 Cal. 4th at 771-72)

Cognizant that the newly pronounced gatekeeping function might lead trial judges to unreasonably restrict the admission of expert testimony, the Sargon court articulated certain limits, drawing directly on Daubert and its progeny. Justice Chin warned that “courts must also be cautious in excluding expert testimony.” The trial court’s role, he wrote, “does not involve choosing between competing expert opinions.” Referring to Daubert itself, Chin explained that the gatekeeper’s focus “must be solely on principles and methodology, not on the conclusions that they generate.” (55 Cal. 4th at 771)

Moreover, “the gatekeeper’s role is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” (55 Cal. 4th at 772 (citing Kumho Tire, 526 U.S. at 152))

Finally, the court made clear that the new gatekeeper function did not totally displace the “general acceptance” test for expert testimony based on new scientific techniques. (55 Cal. 4th at 772 & n. 6.)

Development of Damages for Attorneys

Sargon’s Implications

Although it can be argued that Sargon’s impact was limited to the precise issues at hand, the California Supreme Court’s reasoning suggests a far broader application. By citing federal authority to support its ruling, the state high court implied that the extensive federal jurisprudence addressing admissibility of expert testimony is relevant to interpreting California Evidence Code sections 801(b) and 802. Not surprisingly, in the wake of the Sargon decision state trial judges have seen an influx of motions targeting a wide array of expert opinion testimony, particularly at the summary judgment stage. California’s appellate courts, however, appear to have heeded Justice Chin’s caution not to make the evidentiary gate too difficult to open.

Indeed, a trio of decisions from the second appellate district illustrates how lower courts are applying the Sargon ruling. In one instance, the court reversed a trial judge’s exclusion of the plaintiff’s expert declaration, submitted in opposition to a summary judgment motion filed by the defense in a medical-device defect case. The ruling emphasized that evidence submitted to oppose a summary judgment motion must be liberally construed, and that an expert’s statement of reasons for his opinions need not be as detailed or extensive as a declaration in support of the motion, nor as detailed as might be required at trial. (Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173 (2013))

Similar direction – albeit in an unpublished ruling – came from another panel in a caustic-chemical burn case; the court stated that an expert declaration “filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.” (Kim v. Pacifica Chem., Inc., 2014 WL 470334 at *6 (Cal. Ct. App))

However, a third case (also unpublished) produced a different result when the court used the gatekeeping rubric to deny a writ seeking to vacate a summary adjudication ruling in a wrongful death action against a nursing home. The trial court had stricken the plaintiff’s expert declaration, and the appellate court agreed. It noted that the expert’s declaration neither specified the conditions, individually or collectively, that caused the decedent’s death nor identified any evidence that the decedent manifested particular symptoms when she died. Citing the “analytical gap between the data and the opinion proffered,” the court wrote that the expert’s concluding statements about the cause of death were “nothing more than speculation.” (See Graham v. Superior Court, 2013 WL 4766838 at *6 (Cal. Ct. App.))

These decisions illustrate that Sargon allows parties to be aggressive in challenging expert testimony at the summary judgment stage. At the same time, appellate judges have obeyed the state Supreme Court’s admonition to not erect too high a barrier, especially at the summary judgment stage.

Forensic Accounting Concerns

Although the limits of Sargon’s influence continue to be defined, little has changed for counsel and for forensic accountants. The American Institute of CPAs’ Standards for Consulting Services state that an expert or consultant must “obtain sufficient relevant data to afford a reasonable basis for conclusions or recommendations. …” This was true before Sargon, and remains true afterward.

However, with California trial judges acting as gatekeepers, counsel and experts must now anticipate a Sargon challenge in state courts and arbitrations; and counsel should expect that experts’ opinions will be challenged as frequently as they are in federal courts under Daubert. This development has had three practical effects.

Prepare to defend. The first concerns the new responsibilities of an expert in state court. Because Sargon challenges are increasingly common, counsel should ensure that experts are prepared to defend the foundations of their opinions earlier in the process. After all, Sargon greatly empowers trial courts to exclude expert opinion at the summary judgment stage.

Get help with strategy. The second effect of Sargon is the expanded role experts are playing in state court cases. More and more, attorneys are using experts as consultants to help them develop strategies to exclude the opposing expert opinions.

Details

Mind your assumptions. Third, Sargon heightens the challenges that forensic accountants face in developing acceptable calculations of lost profits – particularly for emerging businesses. By their very nature, lost-profits damage models require assumptions about what would have occurred “but for” the events at issue in the litigation. Under Sargon, it is imperative that experts projecting damages make sure their assumptions are based on information that is supported by relevant data – for example, by contemporaneous sales forecasts or projections. Building this foundation is especially important when the case involves a new business, certainly those with transformative business models, services, or products. Those assumptions, moreover, must use methodology consistent with accepted approaches.

If Sargon teaches us one thing, it is that trial courts acting as gatekeepers will be reluctant to admit damages calculations based on a speculative assumption that lacks an objectively sound basis.

The Sargon decision changed the rules for expert testimony in California. An expert’s opinion must rest on sound research and factual analysis if it is to withstand a motion to exclude. Although the admissibility hurdle is not insurmountable, under Sargon it’s a different game.

California Damages

This section covers California-specific basic information on damages and related topics. Many of California's laws on damages are similar to those of other U.S. states, with some differences (in some cases, minor differences). California damages laws on damages are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on damages, which is a basic matter in California law.

Damages in relation to Personal Injury and Torts

This section analizes the legal issue of damages in this context, and provides information on its relation with Personal Injury and Torts General Principles

Damages in California: General Overview

This entry offers readers with practical insight to the subject of damages in California, a general introduction to the legal issues relating to damages under California law and practice.

Resources

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Ethics

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Ethics in California

For California Attorneys: Ethics and the Internet

( January 2015 ) The Internet sure isn’t Las Vegas. What lawyers say and do online isn’t likely to be afforded any measure of discretion or confidentiality: Once posted, tweets, instant messages, and texts have a life of their own. Cell phone videos go viral. And emails can end up marked with evidence tags.

The moral of the story usually is that everyone who wants to avoid trouble is urged to think long and hard before hitting the send button. But for lawyers who must utilize the Internet in their practice, there are other important lessons to be learned. One of them concerns the duty of competence; another, the duty of candor.

Lawyers venturing into cyberspace to prepare their cases need to do more than review black letter rules stated in dusty books. They also need to know how time-honored rules will be applied to online conduct. Ethics opinions issued by various bar associations provide an excellent resource for that advice.

Performing with Competence

Before an attorney turns to the Internet (or to digital media) to investigate or prepare a case for trial, it is imperative to recognize that new and emerging technologies inevitably trigger a lawyer’s duty of competence.

The basic principle is simple. A lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” (See Cal. Rule Prof. Conduct (RPC) 3-110.) The term competence applies to the diligence, learning, and skill reasonably necessary to perform legal services, as well as the mental, emotional, and physical ability needed to do that work. (See RPC 3-110(B))

Nowadays it is often essential to engage emerging (and fast-changing) technology to perform legal services – especially in the area of e-discovery. But what about counsel who lack tech skills? It may well be that a neophyte lawyer who is tech-savvy can teach an experienced legal hand a thing or two. Consider a “reverse mentoring” arrangement by associating with a lawyer or expert consultant who can add new and needed skills to the matter at hand.

Governing ethical rules clearly invite such a move, for they state that if a lawyer does not possess the learning and skill necessary when the representation is undertaken, he or she may still render competent representation by associating with or consulting another lawyer – or an expert – who does. Alternatively, a lawyer can acquire the necessary learning and skill prior to performing the legal services. (See Rule 3-110(C))

So far so good. Assuming the competence obligation is satisfied, the lawyer must ensure he or she acts ethically when searching for evidence in cyberspace. This involves the duty of candor.

More about Ethics for Lawyers

Honesty Is the Best Policy

From the chat room to the courtroom, being candid and honest is the very heart of legal ethics. Governing rules make clear that a trial lawyer shall employ “means only as are consistent with truth” and shall not seek to mislead the judge or jury “by an artifice or false statement of fact or law.” (RPC 5-200(A), (B.) The code echoes this standard. (See Cal. Bus. & Prof. Code § 6068(d))

California lawyers have a duty to conduct themselves honestly regardless of whether they are in the courtroom. A related statute provides in pertinent part that the commission of any act involving moral turpitude, dishonesty, or corruption – whether committed in the course of work as an attorney or otherwise, and whether the act is a felony or misdemeanor – constitutes cause for disbarment or suspension. (Cal. Bus. & Prof. Code § 6106)

Finding Guidance

The rules cited above do not discuss Facebook, Twitter, Vine, or Instagram. Indeed, because technology has outpaced venerable ethics rules, lawyers must consult the various ethics opinions that are starting to explore the issue of lawyer misconduct in cyberspace.

A caveat: Though ethics opinions offer guidance, they are not strictly binding on a court of law. Moreover, when California ethics opinions do not cover a specific subject, the opinions (and rules) promulgated by other jurisdictions and bar associations may be considered. (See RPC 1-100)

This extends to the ABA Model Rules as well (California is the only state that has not yet adopted a version). Case law establishes that although an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” when there is no direct ethics authority in California. (See State Comp. Ins. Fund v. WPS, Inc., 70 Cal. App. 4th 644, 656 (1999))

Notwithstanding the clear rules that frame the duty of candor, the Internet is a place where many lawyers have stooped to dishonest tactics. It seems that cyber sleuthing for evidence is too tempting for many practitioners to pass up. After all, a treasure trove of information is available online – just a click or two away – and much of it is valuable in litigation. The key is knowing how to access it ethically.

“False Friending”

Five years ago, a New York State Bar committee determined that it is ethical for lawyers to search the public portions of social networking sites looking for damaging information to use against their opponents in lawsuits. (See N.Y. State Bar Ass’n Comm. on Prof. Ethics, Op. 843 (2010))

However, snooping around public information isn’t enough for some lawyers. As the record of professional misconduct proceedings demonstrates, many counsel have gone further, looking beyond the public portion of websites to gain access to private information. The most common example: seeking out Facebook posts about people who are parties or witnesses in pending litigation.

The ethics issue arises when lawyers step over the line by using trickery to peek behind the curtain that divides public information from private information.

Development of Ethics for Attorneys

Deceptive Contact

Facebook users are apt to learn the hard way that not all friend requests come from friends. “False friending” is rampant, as lawyers strategize new ways of getting around Facebook’s ever-changing privacy settings. The technique works because many users routinely accept friend requests even if they don’t recognize the requester.

But when lawyers seek access to private information by sending a phony friend request, it presents a major ethics issue. Often attorneys will pose as someone else out of fear that the targeted person will recognize their real name. Alternatively, they may arrange to have a third party send the request.

Though not all jurisdictions agree, the growing consensus is that in most cases this deceptive type of activity violates a lawyer’s duty of candor.

Accessing Private Information

Six years ago, an opinion from the Philadelphia Bar Association analyzed what ethics rules would apply to a lawyer who sought to obtain information from the private social media profile of an opposing witness to use in litigation. (See Phila. Bar Ass’n Prof. Guidance Comm. Op. 2009-02 (2009))

Specifically, the panel considered whether a lawyer could have a nonlawyer assistant “friend” a witness on Facebook and MySpace without explaining the reason for the contact or disclosing the identity of the assistant’s employer. The purpose was to gain access to nonpublic information on the witness’s website pages.

The Philadelphia opinion concluded that this conduct would violate several different rules of professional conduct because it involved dishonesty. In particular, it violated ABA Rule 8.4(c) because it constituted deceptive conduct by the lawyer’s assistant. “It omits a highly material fact – namely that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.” (See Op. 2009-02 at 3)

Because the lawyer in this instance is acting in a supervisory capacity, ABA Rule 5.3 dictates that an attorney can be held responsible for any assistant’s deceptive actions. (The rule provides in part that an attorney “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.”)

In addition, the conduct would violate ABA Rule 8.4(a), which states that it is professional misconduct for a lawyer to personally violate the rules or “knowingly assist or induce another to do so, or do so through the acts of another.”

Finally, the Philadelphia opinion concluded that the conduct would also violate ABA Rule 4.1 because it “constitutes the making of a false statement of material fact to the witness.”

The opinion reminded lawyers that even noble motives do not justify purposeful deception, citing In Re Gatti (8 P.3d 966 (Ore. 2000) (rejecting proposed exceptions to the rule prohibiting deception, even for government or civil rights investigations); and People v. Paulter (47 P.3d 1175 (Colo. 2002) (prosecutor impersonated a public defender in an attempt to procure the surrender of a murder suspect)).

Details

Difference of Opinion

The Philadelphia opinion recognized that the New York County Lawyers’ Association had reached a different conclusion: That entity approved the use of deception that did not violate the rights of third parties in a limited situation regarding investigating civil rights or intellectual property right violations that were imminent or actually taking place, and in the absence of other methods of obtaining the evidence. (See N.Y. Cnty. Lawyers Ass’n Formal Op. No. 737 (2007))

However, the Philadelphia opinion did state that it would have been permissible for the lawyer to ask the witness directly for access to her social media information.

Using Real Names

In the Big Apple, an ethics panel addressed the question of whether a lawyer could send a Facebook friend request using his or her own name to an unrepresented party for the purpose of gaining information to use in a case. (See New York City Bar Ass’n Formal Op. 2010-2 (2010).) The panel concluded that an attorney, or his or her agent, may send a friend request to an unrepresented party using the attorney’s real name to obtain information. That opinion further stated that such a request does not need to specify the reason the attorney is making the request.

“While there are ethical boundaries to such friending,'” the opinion notes, “in our view they are not crossed when an attorney or investigator uses only truthful information to obtain access to a website, subject to compliance with all other ethical requirements.” (See N.Y. Formal Op. 2010-2 at p. 2)

Disclosing Motivation

The very next year the issue came before the San Diego County Bar Association, which reached the opposite conclusion, opining that an attorney violates the duty not to deceive when a friend request is sent – either to a represented or unrepresented party – on Facebook without disclosing the sender’s motivation. (See San Diego Cnty. Bar Ass’n Legal Ethics Op. 2011-2 (2011))

The San Diego opinion also noted that friend requests to represented parties violate the rules that require such contacts to be routed through counsel. (See RDC 2-100; Op. 2011-2 at pp. 2-8)

In addition, the San Diego opinion noted that an attorney violates his ethical duty not to deceive when he sends a friend request to an unrepresented party on Facebook without disclosing his motivation. Although California has not adopted ABA Model Rule 3.3’s version of the duty of candor, it does impose a generalized duty not to deceive in Business & Professions Code section 6068(d), which forbids bar members “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never seek to mislead the judge … by an artifice or false statement of fact or law.” Typically, this provision is applied to allegations that an attorney misled a judge and the ethics panel found no authority applying the provision to attorney deception of anyone other than a judicial officer – but the opinion concluded that the statutory language is not necessarily so limited.

The San Diego opinion further points out that because the statute is phrased in the conjunctive (using the word and), it may indicate a general duty not to deceive anyone, coupled with a more specific duty not to mislead a judge. The opinion cited cases demonstrating California courts recognize that an attorney’s common law duty not to deceive that extends beyond the courtroom into a wide range of conduct pertinent to the handling of a given matter. (See Op. 2011-2 at p. 9.)

More about the Issue

Evidence Spoliation

Unethically uncovering crucial information on the Internet is one thing. Telling a client to delete it is quite another. In fact, lawyers must think twice – make that ten times – before telling a client to delete his or her social networking page in order to bolster a pending case. Among other things, lawyers contemplating such action should consider RPC 5-220, which states that a lawyer shall not suppress any evidence that the lawyer (or the lawyer’s client) has a legal obligation to reveal or to produce. They should also consider ABA Rule 3.4, which states in pertinent part that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value … or counsel or assist another person to do any such act.”

Money on the Line

In fact, the improper deletion of a Facebook page or other Internet profile can do much more than trigger a professional misconduct investigation. It could cost the offender a great deal of money. That is exactly what happened in Virginia when a trial court lowered the boom on a lawyer who had his plaintiff client “clean up” a damaging Facebook account prior to trial. The sanction amounted to $180,000 for the client and more than $540,000 for the lawyer. Although the trial court’s order was reversed on appeal (see Lester v. Allied Concrete, 285 Va. 295 (2013)), its impact still echoes in many a courtroom.

But that is not all attorneys have to worry about, for social media spoliation can have other damaging impacts: an adverse jury instruction, for example. (See Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J.).) And if the impetus for the spoliation was trial counsel’s misguided advice to the client, it might well trigger something else should the case turn out badly: a malpractice claim.

What to Do?

In this day and age, every lawyer needs to be technically savvy, particularly when e-discovery obligations are involved. Moreover, anyone contemplating cyber sleuthing needs to bone up on the ethical parameters that govern online conduct. A working knowledge of the applicable rules and ethics opinions will facilitate an online investigation that is both effective and ethical.

Ethics and Conflict of Interest

Welcome to the California legal encyclopedia's introductory part covering the ethics and conflict of interest laws of California, with explanations of the various implications of ethics and conflict of interest in California and the statutes enforced in California in connexion with ethics and conflict of interest. This introductory section covers case law related to ethics and conflict of interest in California, the legal approach on ethics and conflict of interest in the United States and related topics. The information below provides an California-specific general overview of the legal regime of ethics and conflict of interest in California.

Ethics and Conflict of Interest in relation to Municipal Law

This section analizes the legal issue of ethics and conflict of interest in this context, and provides information on its relation with Municipal Officers and Boards.

Resources

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