LA OFFICE SERVES VETERANS THROUGH LOS ANGELES COUNTY BAR ASSOCIATION’S VETERANS PROJECT

On August 19, 2015,  Foley & Mansfield sponsored an event for veterans through the Los Angeles County Bar Association’s Veterans Project.  Nine F&M attorneys from the Los Angeles office volunteered for this pro bono work, assisting in helping approximately 60 veterans on legal issues ranging from traffic tickets and expungements to handling misdemeanor citations.

We will be continuing to partner with the Veterans Project in the Los Angeles office and plan to sponsor additional events throughout the year.

The Veterans Project was created in coordination with LACBA’s Armed Forces Committee and has partnered with U.S. VETS and Los Angeles County to provide pro bono legal services at the historic Patriotic Hall in downtown Los Angeles.  The program targets veterans who are unemployed and at risk of homelessness in Los Angeles County, considered to be  the homeless veterans’ capital of America.  The Veterans Project provides assistance to address specific legal issues which can become obstacles to full employment, which is critical for lifting veterans our of homelessness, and for preventing it in many cases.

Our appreciation to all of our attorneys who participated in this inaugural event:  Keith Ameele, Holly Acevedo, Noelle Natoli-Duffy, Judy Zipkin, Amadea Groseclose, Maryam Danishwar, Marissa Franco, Melanie Ayerh, and event organizer Lou Klein.

Posted in Firm News | Tagged , , , , , , , , , , , , | Comments Off on LA OFFICE SERVES VETERANS THROUGH LOS ANGELES COUNTY BAR ASSOCIATION’S VETERANS PROJECT

Foley & Mansfield Named Among Florida’s Best Companies to Work For

bc15_sFoley & Mansfield is pleased to announce the firm was named among Florida’s 2015 Best Companies To Work For. Featured in the August issue of Florida Trend magazine, the firm ranked #8 in the large company category.   This is the sixth consecutive year the firm has made the Best Companies list.

The annual list is compiled following an evaluation of workplace policies, practices, philosophy, systems and demographics, including a survey to measure employee satisfaction. The combined scores determined the top companies and the final ranking.

The Best Companies To Work For In Florida program was created by Florida Trend and Best Companies Group and is endorsed by the HR Florida State Council. For a list of the 100 Best Companies To Work For In Florida, go to http://www.floridatrend.com/article/18708/best-large-companies.

Posted in Uncategorized | Tagged , | Comments Off on Foley & Mansfield Named Among Florida’s Best Companies to Work For

Architects Subject to Suit by Homeowners Despite Lack of Contractual Relationship

Architects in California may believe they are immune from a direct lawsuit by homeowners where their only contract is with the builder, and certainly where their contract with the builder disclaims any third party beneficiary rights.  Not so says the California Supreme Court.  In Beacon Residential Community Ass’n v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, the Court held that the prime architect on a condominium project owes a duty of care to future homeowners with whom it has no contractual relationship, even if the architect does not make final decisions regarding construction.  Pursuant to a contract with the owner and developer, the defendants/architects in Beacon provided architectural and design services for a 595 unit condominium building in San Francisco, knowing the finished construction would be sold as condominiums.  The homeowners association later sued the architects and others for various defects, including “solar heat gain” allegedly caused by the use of less expensive, substandard windows and an overall design that caused inadequate ventilation.  The architects challenged the complaint on the grounds they owed no duty of care to the Association or its members.

The Supreme Court relied on a 1958 decision, Biakanja v. Irving (1958) 49 Cal.2d 647, in analyzing whether the architects owed a duty of care despite a lack of contract between them and the plaintiffs.  The Court concluded that (1) the architects’ work was intended to benefit the homeowners living in the units, (2) the homeowners were among the class of persons who would foreseeably be harmed by negligently designed units, (3) the homeowners suffered injury due to the design defects, (4) given the nature of the architects’ role as the sole architects on the project, there was a close connection between their conduct and the injury suffered, (5) there was significant moral blame attached to the architects’ conduct, (6) and the policy of preventing future harm supported a finding of duty of care.  In their defense, the defendants argued that the plaintiff could sue the developer who could in turn sue the architects or the developer could seek an assignment of the developer’s rights against the defendants.   The Court noted that “the chief interest of prospective homeowners is to avoid purchasing a defective home, not only to have adequate redress after the fact” and found that holding the architects directly accountable would best vindicate this interest.

It remains to be seen how the Beacon decision will impact construction litigation going forward or, for example, how it will impact architects when they are not the sole project architect being paid $5 million for their services.  But certainly the class of potential claimants has been expanded.  Architects must be prepared to deal not just with developer’s cross-claims, but with plaintiff’s direct claims as well.

 

For additional information, contact Darren Johnson in our Los Angeles office at djohnson@foleymansfield.com.

Posted in Commercial Litigation, Construction Defects, Construction Law & Litigation | Tagged , , , , | Comments Off on Architects Subject to Suit by Homeowners Despite Lack of Contractual Relationship

Miami Jury Rejects $18.6 Million Claim in Asbestos-Related Wrongful Death Trial

On August 3, 2015, after less than 3 hours of deliberations, a Miami-Dade County jury found Caterpillar Inc., and Dana Co. LLC, not liable for the death of a mechanic who died of mesothelioma after allegedly working with asbestos-containing parts manufactured by the companies. The six-member jury unanimously rejected the $18.6 million dollar claim against Caterpillar and co-defendant Dana Co. LLC.

The decedent, Pablo Gonzalez, died at age 79 in 2011, less than three months after being diagnosed with mesothelioma. The suit, brought by his surviving family, sought $18.6 million in damages. Closing arguments ended in this 14-day trial with the defendants arguing there was no proof that the decedent had developed mesothelioma from the use of their products.

The trial team defending Caterpillar Inc. consisted of lead attorney Jose Gaitan of The Gaitan Group PLLC, and Timothy J. Ferguson and Beranton J. Whisenant, Jr. of Foley & Mansfield, PLLP.

Posted in Asbestos Litigation, Civil Litigation, Insurance Disputes, Toxic and Mass Tort | Tagged , , , , , | Comments Off on Miami Jury Rejects $18.6 Million Claim in Asbestos-Related Wrongful Death Trial

Six F&M Attorneys Named to the 2015 Minnesota Super Lawyer / Rising Star lists

Foley & Mansfield is pleased to announce that six attorneys in the firm’s Minneapolis office have been named to the 2015 Minnesota Super Lawyers® and Rising Star® Lists.

Recognized on the 2015 Minnesota Super Lawyers list, which is comprised of no more than five percent of the lawyers in the state, are:

  • Founding partner Kyle B. Mansfield, Alternative Dispute Resolution
  • Partner Lisa M. Lamm Bachman, Employment Litigation
  • Partner Thomas W. Pahl, Business Litigation
  • Partner Janet G. Stellpflug,  Civil Litigation

Recognized on the 2015 Minnesota Rising Star list, comprising no more than 2.5 percent of Minnesota lawyers, are:

  • Partner Jamie L. Habeck Paz, Business Litigation
  • Attorney Wyatt S. Partridge, Real Estate

Many of the firm’s Minneapolis attorneys have been recognized on the Super Lawyers and Rising Stars lists for more than a decade. We invite you to learn more about these remarkable  attorneys and their practices.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.

Posted in Firm News | Tagged , , , , , , , , , | Comments Off on Six F&M Attorneys Named to the 2015 Minnesota Super Lawyer / Rising Star lists

FOLEY & MANSFIELD OPENS PORTLAND OFFICE; VETERAN LITIGATOR DIANE BABBITT JOINS FIRM

dbabbittNational Firm Enhances Services Through Expansion in Pacific Northwest

Foley & Mansfield announced today that it has expanded its profile in the Pacific Northwest with the addition of experienced litigator Diane C. Babbitt, a former partner and head of the Northwest litigation practice at Jackson Jenkins Renstrom. Babbitt will work in the Firm’s new Portland office.

“Our new Portland operations, coupled with the addition of such an experienced professional in that market, is a critical first step in the firm’s strategic growth initiative for the region,” says founding partner Kyle Mansfield. In addition to Babbitt, the firm currently has three attorneys licensed in Oregon who serve clients both regionally and on a national basis.

“Diane is an accomplished trial attorney who has consistently achieved excellent results for clients in bet-the-company product liability, toxic tort and construction litigation,” adds Scott Wood, managing partner of Foley & Mansfield’s Seattle and Portland offices. “We are very pleased to both welcome her to the firm and to enhance the service we provide to all of our clients.”

Foley & Mansfield’s Portland office is located at 1500 SW 1st Avenue in the southwest water front area of downtown Portland, just steps from the Willamette River and Tom McCall Waterfront Park.

Posted in Firm News | Tagged , , | Comments Off on FOLEY & MANSFIELD OPENS PORTLAND OFFICE; VETERAN LITIGATOR DIANE BABBITT JOINS FIRM

Architects Subject to Suit by Homeowners Despite Lack of Contractual Relationship

Architects in California may believe they are immune from a direct lawsuit by homeowners where their only contract is with the builder, and certainly where their contract with the builder disclaims any third party beneficiary rights.  Not so says the California Supreme Court.  In Beacon Residential Community Ass’n v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, the Court held that the prime architect on a condominium project owes a duty of care to future homeowners with whom it has no contractual relationship, even if the architect does not make final decisions regarding construction.  Pursuant to a contract with the owner and developer, the defendants/architects in Beacon provided architectural and design services for a 595 unit condominium building in San Francisco, knowing the finished construction would be sold as condominiums.  The homeowners association later sued the architects and others for various defects, including “solar heat gain” allegedly caused by the use of less expensive, substandard windows and an overall design that caused inadequate ventilation.  The architects challenged the complaint on the grounds they owed no duty of care to the Association or its members.

The Supreme Court relied on a 1958 decision, Biakanja v. Irving (1958) 49 Cal.2d 647, in analyzing whether the architects owed a duty of care despite a lack of contract between them and the plaintiffs.  The Court concluded that (1) the architects’ work was intended to benefit the homeowners living in the units, (2) the homeowners were among the class of persons who would foreseeably be harmed by negligently designed units, (3) the homeowners suffered injury due to the design defects, (4) given the nature of the architects’ role as the sole architects on the project, there was a close connection between their conduct and the injury suffered, (5) there was significant moral blame attached to the architects’ conduct, (6) and the policy of preventing future harm supported a finding of duty of care.  In their defense, the defendants argued that the plaintiff could sue the developer who could in turn sue the architects or the developer could seek an assignment of the developer’s rights against the defendants.   The Court noted that “the chief interest of prospective homeowners is to avoid purchasing a defective home, not only to have adequate redress after the fact” and found that holding the architects directly accountable would best vindicate this interest.

It remains to be seen how the Beacon decision will impact construction litigation going forward or, for example, how it will impact architects when they are not the sole project architect being paid $5 million for their services.  But certainly the class of potential claimants has been expanded.  Architects must be prepared to deal not just with developer’s cross-claims, but with plaintiff’s direct claims as well.

Darren Johnson is an attorney in Foley & Mansfield’s Los Angeles office, where he focuses his practice in commercial litigation, including construction litigation.

He can be reached at djohnson@foleymansfield.com or 213.283.2100.

 

 

Posted in Commercial Litigation, Construction Defects, Construction Law & Litigation | Tagged , , , , | Comments Off on Architects Subject to Suit by Homeowners Despite Lack of Contractual Relationship

Miami Team Prevails for Japan-Based Client

Timothy J. Ferguson, a partner in the Miami office won a big victory for a client after extensive arguments on motions at a hotly contested hearing.

On behalf of the client, a component parts manufacturer based in Japan, Tim prevailed on both Motions to Quash Service and Dismiss for Lack of Personal Jurisdiction. Based on multiple arguments, the Court found that the Plaintiff  had failed to show that the parent company located in the United States had exerted the requisite degree of control over its subsidiary which would then allow the plaintiff to effectuate substitute service on the subsidiary and avoid compliance with The Hague Convention.

Additionally, the Court found that there was a lack of personal jurisdiction over the parent company; therefore, the Court granted Defendant’s Motion to Quash Service and Motion to Dismiss for Lack of Personal Jurisdiction.

Posted in Commercial Litigation | Tagged , | Comments Off on Miami Team Prevails for Japan-Based Client

Harder Prevails in HOA Dispute

Foley & Mansfield partner Thomas A. Harder won a victory for the defense in a long running dispute between his client, a Minnesota homeowner’s association, and plaintiff, an adjoining retail association.

The plaintiff was a retail association that shared common property with the homeowner’s association.  Following a series of failed negotiations over construction defect and related financial issues, the plaintiff filed a motion against our client seeking to have a receiver appointed over the homeowner’s association, as well as for declaratory and injunctive relief relating to alleged construction defects at their shared property.

After argument, the Court ruled from the bench that the plaintiff failed to establish even one of the three required factors for appointing a receiver (insolvency, waste, and insufficient security).  The Court also denied the plaintiff’s motion for declaratory and injunctive relief, holding that there were no exigent circumstances requiring immediate Court intervention, and suggested the parties work together to resolve their differences.  The ruling from the bench was significant for our client as it confirms its right to make decisions concerning the property.

Harder was assisted by attorney Kyle Eidsness, both of the firm’s Minneapolis office.

Posted in Commercial Litigation, Construction Defects | Tagged , , , | Comments Off on Harder Prevails in HOA Dispute

Lamm Bachman Wins in Closely-Held Shareholder Dispute

It was a case of modern-day piracy, in which a minority investor attempted to steal credit for patented technology and take control of a company.  However, Foley & Mansfield Minneapolis partner Lisa Lamm Bachman, assisted by attorney Tessa Mansfield, successfully defended our client in this highly convoluted and contentious closely-held shareholder dispute, fraught with false representations and bad faith on the part of the plaintiff.

After literally years of dealing with plaintiff’s false assertions and continued demands, a series of compromises were made, with the parties entering into a confidential settlement agreement providing the plaintiff with substantial equity in the company and allowing him to assume a leadership role. This was in exchange for promised access to millionaire investors, a release of his claims, his promised connections with large manufacturers, and an end to the distractions he had caused for the company.

Fast-forward to the matter at hand – with the plaintiff  seeking to enforce this settlement agreement and seeking reinstatement as the CEO of the company, despite the fact that the shareholders voted in favor of his removal due to breach of alleged fiduciary duties, among other factors.

In defending the matter, our client, as well as the company’s corporate lawyer who had documented the transaction, asserted that the settlement agreement had been mutually rescinded at the plaintiff’s request.  At the time, the plaintiff was undergoing a contentious divorce and did not want his ex-wife to discover that he had received additional shares in the company that could have been considered marital property.

Bachman was able to effectively discredit the plaintiff on the stand, demonstrating numerous contradictions in testimony provided to the court, during depositions, and in statements made during his divorce proceedings and to state auditors.

After a three-day bench trial, the judge issued his ruling from the bench dismissing all of plaintiff’s claims against our client in their entirety. In doing so, the court found that the plaintiff lacked any credibility and the evidence demonstrated that he had engaged in unconscionable conduct which operated to bar any equitable relief. The judge went so far as to state that in his many years both on the bench and as a practicing trial attorney, he had never seen a less credible witness than the plaintiff. The court also determined that the evidence demonstrated the settlement agreement had been mutually rescinded by the parties.

While the burden of proof for rescission is “clear and convincing,” the court found that in this case, rescission of the settlement agreement was proved “beyond a reasonable doubt.”  The ruling also awarded our client $50,000 for his counterclaim against the plaintiff for plaintiff’s conversion of sale proceeds for the sale of our client’s personal shares of company stock. Our client will also be allowed to make application for an award of attorneys’ fees and costs incurred in the defense of this matter.

Posted in Commercial Litigation, Intellectual Property, Patents, Shareholder Disputes | Tagged , , , | Comments Off on Lamm Bachman Wins in Closely-Held Shareholder Dispute

Arbitrary Tiered Water Rates Violate California Constitution – Capistrano Taxpayers Association v. City of San Juan Capistrano – What the Appellate Court’s Ruling Means

Arbitrary Tiered Water Rates Violate California Constitution

Today, the California Court of Appeal, 4th District, Division 3, issued its long-awaited opinion in the Capistrano Taxpayers Association v. City of San Juan Capistrano water rates case.  Louis C. Klein, a partner in Foley & Mansfield’s Los Angeles office, represented Amicus Curiae Mesa Water District in this case siding with the taxpayers association which sought to invalidate the City’s tiered water rates.

Capistrano Tax Payers Association v. City of San Juan Capistrano
California Court of Appeal
4th Appellate District, Division 3
Case No. G048969

Today, the California Court of Appeal, 4th District, Division 3, issued its long-awaited opinion in the Capistrano Taxpayers Association v. City of San Juan Capistrano water rates case. The ruling sheds much needed light on the State Constitutional requirements for determining how municipalities and water districts can set water rates.  Proposition 218, enacted by the voters in 1996, set certain constitutional limitations on the ability of government agencies to generate revenues without taxpayer approval.

First, and most importantly, the Court’s ruling does not invalidate all tiered water rates.  Instead, in line with many state, regional and locally-instituted conservation efforts, as well as Governor Brown’s recent mandate to cut water usage by more than 25% in California, the Court’s ruling only invalidates arbitrary rate structures, whether tiered, blocked or flat, that do not meet the mandatory requirements found in Proposition 218.

Commentators should not read the Court’s ruling as a death knell for water conservation.  It is not.  Harmonizing Proposition 218 with water conservation efforts are not mutually exclusive endeavors.  Water conservation as mandated by the California Constitution, Article X, section 2 is not at odds with Proposition 218 so long as conservation is attained in a manner that does not exceed the proportional cost of service attributable to the owner’s property.  As such, legal conservation efforts to reduce water usage is not in jeopardy by the Court’s ruling.  The Court’s ruling only covers those government agencies who, for expediency’s sake or to arbitrarily generate revenue and create slush funds, circumvent strict constitutional standards and protections for California’s citizens without first providing proper notice, rate making documentation and calculations, and an opportunity to be heard.  This is what the City of San Juan Capistrano failed to do.  Instead, the City created a rate model that jumped exponentially between tiers creating inherent inequalities, without any explanation, justification, or backup data to support its model – a rate model that was never disclosed to the City’s rate payers and never warranted as Proposition 218 compliant.

Compliance with the mandates of Proposition 218 is not an exceptionally difficult endeavor. Reliable and credible rate models and calculations that take into account Proposition 218 standards will more than likely be given credence by the courts.  Arbitrary and untrustworthy rate models will not, purely revenue-generating rate models will not, and rate models that are not proportional to the cost of service will not.  If the costs of service increase due to constrictions in water supplies as envisioned by the Governor and the State’s water suppliers, then these increased costs can be passed through to the rate payers through Proposition 218’s constitutional safeguards, not in spite of them.  This is the rub for most government agencies – to take the steps needed to draft, vet and create credible rate models and to expend sufficient effort to ensure accountability under Proposition 218.

The Court’s ruling today only emphasizes the need for government agencies to follow the State’s Constitution in creating and implementing water rates so that all Californians have a say in how they utilize, pay for and conserve one of the State’s most precious commodities.

Below is a chart of the legal issues and the rulings of the Court of Appeal, 4th District, Division 3

LEGAL ISSUES  RULING

1.  Are Tiered Water Rates Constitutional?  Yes.  Tiered water rates are constitutional as long as they (1) satisfy the proportionality and revenue-neutrality provisions of Proposition 218, (2) relate to a service that is immediately available, and (3) have been disclosed to the public prior to implementation.  Allocation-based conservation pricing consistent with California Constitution, article X, section 2, and Water Code section 372, is not at odds with Proposition 218 so long as conservation is attained in a manner that shall not exceed the proportional cost of the service attributable to the parcel and there is adequate support for the inequality between tiers, depending on the category of user.

2.  Are the City’s tiered water rates compliant with Proposition 218?  No.  The City failed to present credible evidence that the arbitrary and incremental increases between its tiered rates were compliant with Proposition 218.  First, the City failed to provide any specific financial data to support its tiered rates.  Second, the City’s significant rate jumps between tiers are not cost-related.  Finally, the tiered rates are not proportional to the cost of service to each parcel.

3.  Are the City’s tiered rates a penalty?  No. The City’s tiered water rates cannot be considered a penalty because such a theory would be inconsistent with the Constitution.  Penalty rates that bear no relationship to the actual cost of providing water service would make a “mockery of the Constitution.”

4.  Does the City bear the burden of proof in demonstrating compliance with the mandates of Proposition 218?  Yes.  Proposition 218 expressly provides that the challenged agency (the City) bears the burden of proving compliance with Proposition 218.  It is clear that the voters intended to reverse the usual deference accorded governmental action and to reverse the presumption of validity by placing the burden on the governmental agency.

5.  Can the City charge rate payers for non traditional, non-potable water services (recycled water)?  Yes.  The Court found that providing recycled water is not a fundamentally different kind of service from providing traditional potable water. When each kind of water is provided by a single local agency that provides water to different kinds of users, some of whom can make use of recycled water while other can only make use of traditional potable water, providing each kind of water is providing the same service.  Non-potable water for some customers frees up potable water for others.  Since water service is already immediately available to all customers of the City, there is no violation of Proposition 218 (Constitution, Article XIII(D), section 6(b)(4) requiring that a service is actually used by, or immediately available to, the owner of the property.)

6.  Is there sufficient evidence to determine whether residential rate payers who are lower than average water users are being required to pay for recycling facilities that would not be necessary but for above-average consumption?  Insufficient evidence.  The Court remanded this issue back to the trial court for further findings on whether charges to develop the City’s nascent recycling operation have been improperly allocated to users whose levels of consumption are so low that they cannot be said to be responsible for the need for that recycling.

Read the ruling here. For more information, contact Louis Klein at 213.283.2112 or lklein@foleymansfield.com.

Posted in Civil Litigation, Uncategorized | Tagged , , , , | Comments Off on Arbitrary Tiered Water Rates Violate California Constitution – Capistrano Taxpayers Association v. City of San Juan Capistrano – What the Appellate Court’s Ruling Means

California’s New Paid Sick Leave Law: What Employers Should Know

California’s new paid sick leave law, the Health Workplaces, Healthy Family Act of 2014 (“Paid Sick Leave Law”) came into effect on January 1, 2015. Starting July 1, 2015, the new law entitles an employee to accrue up to three paid sick days in a 12-month period for the diagnosis, treatment or care of an existing health condition or for preventative care for the employee or the employee’s family members. Because the new Paid Sick Leave Law brings about significant changes regarding sick leave, employers should be aware of the changes and ensure that their sick leave policies and procedures are compliant with the new law.

Who is covered by the law?

All California employees, including part-time, per diem, and temporary employees, are covered by the law, as long as they work 30 days or more within a year. The law applies to both exempt and non-exempt employees, and there is no minimum number of employees needed in a workplace for the Paid Sick Leave Law to apply.

Only four groups of employees are exempt from coverage: (1) employees covered by collective bargaining agreements with specific paid leave provisions, (2) providers of publicly-funded in-home supportive services, (3) employees in the construction industry covered by a valid collective bargaining agreement, and (4) flight deck and cabin crew members of air carriers that receive compensation for time off equivalent under the new law.

How is paid sick leave earned?

Employees accrue paid sick leave at the rate of at least one (1) hour per every thirty (30) hours worked beginning either July 1, 2015 or on the first date of employment – whichever comes later. An employee may accrue up to 24 hours (or three days) per each 12-month employment year. Exempt employees accrue at least one (1) hour every forty (40) hours worked.

How much paid sick leave may an employee take?

Employees may request and use accrued paid sick days beginning on the 90th day of employment. Employers must allow employees to carry over paid sick days to the following year of employment up to six (6) days or forty-eight (48) hours of paid leave, but can limit the number of sick leave days used up to three (3) days in any one year. Employees may take as little as two (2) hours at a time in paid sick leave.

How is sick leave pay calculated?

The rate of sick leave pay is the employee’s hourly wage. If, during the 90-day period of employment before taking accrued sick leave, the employee had differing hourly pay rates, was paid by commission, or was a non-exempt salaried employee, then an employer must calculate the sick leave pay by dividing the employee’s total wages (not including any overtime pay), by the employee’s total hours worked in the full pay periods worked during the 90-day period.

What must an employer do to comply with the Paid Sick Leave Law?

Beginning January 1, 2015, an employer must provide notice to employees of their rights under the Paid Sick Leave Law when they are first hired and must place a poster informing employees of their rights in a conspicuous place in the office. Beginning July 1, 2015, an employer must comply with the sick day accrual, carry over, and use requirements. An employer cannot deny an employee the right to use accrued sick days and cannot discharge, demote, or discriminate against an employee for using accrued sick days. Further, an employer must provide notice on an employee’s itemized wage statement of the number of available sick days. Finally, an employer must keep records which document the number of hours worked, the number of paid sick days an employee has accrued, and the number of paid sick days an employee has used for at least three years.

For those employers that already have sick leave policies in place, changes are not necessarily required, so long as the policies provide no fewer than three paid sick days (24 hours) annually, allow for sick leave to carry over year to year up to six (6) days or forty eight (48) hours per year, and allow sick leave to be used for the employee and their family members, including parents-in-law, grandparents, grandchildren, and siblings.

Conclusion

The new Paid Sick Leave Law is significant, since California had no mandatory sick leave (paid or otherwise) prior to this law coming into effect. All California employers – no matter the size – should examine their sick leave policies and ensure they are in compliance prior to July 1, 2015, when the accrual period starts.

Amadea Groseclose, an attorney in the Los Angeles office, of Foley & Mansfield, is a member of the firm’s national employment law group. For more information or assistance, Amadea can be reached at 213-283-2100 or mgroseclose@foleymansfield.com.

Posted in Employee Benefits and Programs, Employment Law & Litigation | Tagged , , , , , | Comments Off on California’s New Paid Sick Leave Law: What Employers Should Know

Marijuana Businesses Face Numerous Regulatory Hurdles

marijuana-300x297

Earlier this month, voters in three more states passed laws making the recreational use of marijuana lawful.  Those states are Alaska, Oregon and the District of Columbia.  They join Washington and Colorado as the only other states in which recreational use of marijuana is lawful.

Although this means that Alaska, Oregon and D.C. will likely see significant increases in state revenue when the laws go into effect, it also means that those involved in the business of distributing, manufacturing and selling marijuana will have lots of regulatory hurdles to jump through.  Each person and company that desires to be involved in the legal marijuana industry in those states will need to undergo a rigorous licensing and application process with the states in which they conduct business.  Furthermore, they will need to find alternative ways to do their business, as most credit card companies and financial institutions will not do business with members of the state-legal marijuana industry because of their own regulatory hoops and hurdles.

For example, the manufacturing, distribution and selling of marijuana is still illegal under federal law, namely the Controlled Substance Act.  Furthermore, it is unlawful under the Bank Secrecy Act and Anti-Money Laundering Act for financial institutions to do business with clients that are involved the illegal drug industry (at the federal level, even if it is legal at the state level).  Although the federal government has provided some guidance in an attempt to ease the concerns of financial institutions (namely through the Cole Memo, the Ogden Memo and a FinCEN report from February 2014), such efforts are nothing more than guidance and do not insulate financial institutions from liability if they do business with clients in the marijuana industry.

As a result, most businesses in Alaska, Oregon and D.C. will experience what their colleagues in Colorado and Washington have experienced, a significant headache trying to do business without banking services, credit services and once profitable, the ability to invest their profits through broker / dealers or investment advisory firms.  Eventually the laws will have to change to make it easier for financial institutions to do business with marijuana clients, but until that happens, the highly profitable and state-legal business of marijuana is in limbo.

Chris Parrington works with clients involved in the marijuana industry and regularly comments on developments in this emerging area of law. For information or assistance, contact him at cparrington@foleymansfield.com.

Additional information on the medical marijuana business nationwide can be found at http://www.thcbiz.com/index.php.

Posted in Business & Transactions, The Business of Marijuana | Tagged , , , , , , , | Comments Off on Marijuana Businesses Face Numerous Regulatory Hurdles

Los Angeles Attorneys Joseph Macha and Maryam Danishwar Obtain Defense Verdict in Los Angeles County Superior Court

Joseph Macha and Maryam Danishwar of Foley and Mansfield’s Los Angeles office received a defense verdict on behalf of Hood Corporation after a 3 ½ week jury trial in Los Angeles County Superior Court.

Plaintiff was an employee of a Southern California utility company who worked primarily on pipelines.  Plaintiff sued Hood Corporation, a sub-contractor to the utility company at issue, claiming that Hood Corporation’s removal of an asbestos containing product exposed him to asbestos, causing his asbestosis.  The jury deliberated for 1½ days before returning a defense verdict on September 26, 2014 finding that Hood did not act in a negligent fashion.

Posted in Asbestos Litigation, Civil Litigation | Tagged , , | Comments Off on Los Angeles Attorneys Joseph Macha and Maryam Danishwar Obtain Defense Verdict in Los Angeles County Superior Court

MN Asbestos Litigation Update – Jury verdict (Neil Humphreys & Lona Jensen v. 3M, et al.)

On October 22, 2014 after a six day trial, an eight-member jury returned a verdict in favor of plaintiff in a Minnesota living mesothelioma case  (Neil Humphreys and Lona Jensen v. 3M, et al.).  This is the first plaintiff verdict in a Minnesota asbestos case in the past five years. 

Trial began on October 13, 2014 against Smith-Sharpe and Owens-Illinois.  Smith-Sharpe settled during voir dire. Plaintiff’s expert testimony was given by Dr. Richard Lemen, Philip John Templin, Dr. Arnold Brody and Robert Johnson.   Owens-Illinois called Dr. Randall M. German, Dr. Peter Neushul, and Dr. Earl D. Gregory.

Owens-Illinois defended the case by arguing a State-of-Art defense and that plaintiff was mistaken as to the identity of the insulation he used.   Plaintiff worked three months as an insulator the Summer of 1967 at Taconite Harbor, a power plant located in Minnesota along the North Shore of Lake Superior.   Plaintiff testified he used Mundet asbestos cement and Owens-Illinois’ pipecovering and block.

After two days of deliberation, the jury assigned the following fault: 36.5% to Owens-Illinois;  23.5% to Mundet; and 40% to API (employer).  The total damages were $4,516,000 with the following breakdown:  $856,000 for pl’s past damages;  $2,756,000 for pl’s future damages;  $904,000 for spouse consortium.

For additional information, contact David Scouton in the Minneapolis office of Foley & Mansfield at 612.338.8788.

 

Posted in Asbestos Litigation | Tagged , , , , | Comments Off on MN Asbestos Litigation Update – Jury verdict (Neil Humphreys & Lona Jensen v. 3M, et al.)