November, 2020 | Dolan Law Firm

Bicycle Accidents on Crosswalks

Written By: Christopher B. Dolan and Cristina Garcia

This week’s question comes from Heather M. in Pacific Heights who asks: “I was riding my bicycle down Oak Street, approaching Franklin Street when I realized my backpack was not closed properly, so I pulled over onto the sidewalk to adjust my backpack. As I jumped back on my bike, I noticed that the pedestrian walking signal was on, so I began riding through the intersection within the marked crosswalk. Suddenly a vehicle came racing down the street and struck me. I was thrown off my bike and fell to the ground. I was transported by ambulance to the hospital. At the hospital, the attending doctor told me that I had broken my left ankle and it would require surgery. The driver is adamant that the collision is my fault because I should not have been riding my bicycle within the crosswalk. But he was driving so fast that even if I would have walked my bike across the street, he would have still struck me because he wouldn’t have had enough time to stop. I realize that maybe I shouldn’t have been riding my bike on the crosswalk, however, is there anything I can do to recover for my medical bills, lost wages and pain and suffering?”

Dear Heather,
I am sorry to hear about your accident. The short answer is yes, you may seek compensation for the economic and non-economic damages you suffered as a result of this collision. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages are commonly known as pain and suffering, physical impairment and inconvenience. However, there are a few hurdles you will need to overcome in order to obtain compensation. Additionally, the compensation may be reduced by what is called, “Comparative Fault,” which will be discussed in more detail below.

As a general rule, adult bicyclists have the same duties and responsibilities as motor vehicle drivers under California Vehicle Code (CVC) section 21200. Therefore, under CVC 21200, it is unlawful to ride a bicycle within a crosswalk. In order to comply with California law and for your own safety, bicyclists should dismount their bicycle and walk it across the street within the marked crosswalk.

Many times, the police report will place the bicyclists at fault because they were riding within the marked crosswalk, which makes it more difficult for individuals to pursue a claim. It is not surprising that the driver of the vehicle is refusing to accept any liability as many insurance companies will rely on the police report and CVC section 21200 to place 100% of the fault on the bicyclist. However, if a serious bicycle accident occurs within a crosswalk, that does not automatically mean that you are precluded from recovering compensation for your injuries.

Based on the limited information you have provided, it appears that at the time you were riding within the crosswalk pedestrians had the right of way. This means that the driver of the vehicle had the responsibility to yield-to-pedestrians. Therefore, had the driver of the vehicle been driving as a reasonable and prudent driver, instead of speeding down the street, he would have had sufficient time to stop. Thus, as a result of his negligence, you suffered personal injuries.

An issue that is likely to be raised is, “Comparative Fault,” also referred to as, “Comparative Negligence.” Comparative Fault is the percentage of fault, if any, that will be assigned to the injured party. Under California law, if the parties are found to share fault, the law requires that the amount of recovery that the injured party is entitled to be reduced by his or her percentage of fault. For example, if the injured person is found to be 30% at fault, their compensation award will be reduced by 30%. This percentage is generally assigned by the driver’s insurance adjuster if the case is settled pre-litigation. However, if your case does not settle before trial, a jury will decide what percentage of fault will be assigned to each party.

If you were injured in a bicycle accident as a result of someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of cases involving Comparative Fault, it is important that you contact a qualified and skilled trial lawyer to review the situation and assist you with your claim to ensure that you receive full and just compensation for your injuries.

Written By: Christopher B. Dolan and Taylor French

Beginning July 1, 2021, California drivers will face increased penalties for using handheld devices while operating a motor vehicle. Specifically, a driver convicted of violating California’s laws prohibiting the use of handheld technology will be issued a point on his or her driver’s license under certain circumstances.

In an effort to curb motor vehicle collisions caused by distracted drivers, California has enacted several laws throughout recent years restricting drivers’ use of handheld devices while driving.

In 2008, a California law went into effect prohibiting all drivers from using a handheld wireless phone while operating a motor vehicle. In 2009, California’s Wireless Communications Device Law went into effect, banning drivers from writing, sending, or reading text messages while operating a motor vehicle.

In 2017, California law went a step further, prohibiting drivers from holding a cell phone while driving. The 2017 law made it so that a driver’s phone must be mounted on the windshield or center console rather than in a driver’s hand. The only permissible actions on the device are a finger tap or a single swipe. As of 2017, drivers could no longer use their cell phones while driving to navigate map apps or utilize music apps. A driver 18 years of age or younger, however, is prohibited from driving while using a cell phone, regardless of whether it is being used hands-free.

Currently, the penalty for failing to use hands-free technology while operating a vehicle amounts to 162 dollars – a relatively small fine for an activity that can have fatal consequences for those on the road. Indeed, a violation for driving while using a cell phone carries the lowest base fine for any violation of the Vehicle Code. The only other violation with a comparable penalty is the failure of a bus driver or bus passenger to wear a seatbelt. Moreover, existing law provides that drivers cannot be issued a point on their record for violations of hands free device laws.

California’s new law, however, establishes that a driver convicted of a distracted driving offense will be issued a point on his or her record for each conviction occurring within thirty-six hours of a prior conviction for the same offense. Points are used by the Department of Motor Vehicles to determine whether a driver should be considered a negligent operator.

What is the consequence of being considered a negligent operator? The DMV may suspend or revoke a negligent operator’s driving privilege. Additionally, insurers may increase a driver’s insurance rate depending on the number of points on the driver’s record. So, in effect, drivers who continue to utilize handheld devices while driving will not only face monetary fines, but they could also potentially lose their driving privileges or suffer increased insurance rates.

An individual with four or more points in 12 months, six points in 24 months, or eight points in 36 months is considered a negligent operator. Except for those issued for driving under the influence, points will remain on a driver’s record for a total of 36 months. The Department of Motor Vehicles can issue points on a driver’s record for various violations of the Vehicle Code, including speeding, crossing a double line, or making illegal U-turns.

AB 47, the bill increasing the penalties for distracted driving offenses to include a point on a driver’s record, unanimously passed both the Senate and Assembly this summer and was signed by Governor Gavin Newsom in October. The bill’s author, Assemblymember Tom Daly, explained the need for the increased penalties:

“Driving while using a cell phone is a serious safety issue. In 2017, there were 243,760 distracted driving offenses in California related to cell phone use. During that same year, there were 932 collisions – 31 of which were fatal – where distracted driving due to cell phone use was determined as the factor”

“Currently, driving while using a cell phone results in a small fine (oftentimes less than a parking ticket), but it has not proven to change behavior. For example, a 2016 study found 7.6% of all drivers were seen to be using their phone while driving, compared to 5.4% in 2015. This change marks a 2.2% increase. This bill elevates a distracted driving citation to the same status as other dangerous driving violations, such as speeding or running a red light, helping discourage people from taking part in this dangerous behavior.”

Hopefully, moving forward with the new penalties in effect, drivers will consider the increased ramifications of driving while using a cell phone and turn their focus away from their devices and onto the road and their surroundings. Doing so would serve to not only protect the drivers themselves but all other individuals on the road, decreasing vehicle collisions and saving lives.

Dolan Law Firm Announces the Recipient of the 2020 Justice Empowerment Scholarship

Christopher Dolan, founder and lead trial counsel at Dolan Law Firm, PC announced today that the recipient of the 2020 Dolan Law Firm’s Justice Empowerment Scholarship Program is Briana Guerrero-Vega, a graduate student at California State University-Chico. The law firm is awarding Ms. Guerrero-Vega a $2,500 scholarship.

Briana Guerrero-Vega is an arising first generation graduate student at California State University-Chico. She has a bachelor’s degree in Social Work & Multicultural Gender Studies with an emphasis in Women Studies and is currently studying for her Masters of Social Work. This year, she was recently promoted as the Program Director for the Gender & Sexuality Coalition. She is passionate in pursuing her studies and wants to make sure she brings the value of intersexuality to others who are barely exposed to the term.

In her powerful video, Briana returns to her community in San Francisco, CA to discuss what justice means and explains how to better promote the well-being of society to validate intersectional to advocate for justice. Ms. Guerrero-Vega “first thought the scholarship was a unique topic; justice, a conversation that most scholarships do not ask. I was not only inspired to show my background but showing how someone from an urban community can thrive”.

Here is Briana Guerrero-Vega’s award-winning video:

We admire Briana’s time and dedication for her video and her commitment to educating her community. She met and surpassed the criteria and demonstrated the qualities we look for in our scholarship program. We hope that Briana’s video and the others posted via YouTube will inspire and encourage young audiences nationwide to advance the cause of social justice in their communities. At Dolan Law Firm, we share the same values and beliefs that justice is for all.

Additional 2020 Justice Empowerment Scholarship Submissions

Gabriel Ponce, California State University-Fullerton

Shawn Arthur, Texas State University

About Dolan Law Firm

With offices in San Francisco, Oakland, Marin, and Los Angeles the Dolan Law Firm represents clients in personal injury; car, Uber, motorcycle, bicycle, and pedestrian accidents; elder abuse and neglect; employee rights and wrongful termination; whistleblower; and civil and LGBT rights cases. Learn more at https://dolanlawfirm.com

Written By: Christopher B. Dolan and Matthew D. Gramly

Q: This week’s question comes from Joe in Tiburon who asks: What happens when a President loses his or her re-election but refuses to concede or step aside?

A: Dear Joe,
This is a great question. Our entire government runs on the honor system. Yes, we have laws, rules, elections, etc., but we simply trust that our leaders and elected officials will honor and abide by those requirements and traditions.

Our first President was George Washington. After he served as President another election was held, another President was elected and there was a peaceful transition of power. George Washington voluntarily gave the power of the Presidency to his successor, John Adams. At the time, King George III of Great Britain said that if Washington did in fact voluntarily give up the Presidency that he would be viewed as the greatest man alive. Why?

Up until that point in Western history such a democratic, peaceful transfer of power had simply never happened before, it had almost never even been contemplated. Power had been gained and lost by kings and conquerors through wars. Voluntarily giving up near dictatorial power simply was not a part of human nature in the late 1700s or during any time before. Back then, citizens were meant to be ruled. They certainly were not meant to participate in their own governance and were certainly not meant to participate in choosing their own leaders.

In forming the structure of its government through the Constitution, the United States of America chose a different path. Government of the people, by the people, for the people. Although at that time, “the people” participating in our government and its selection were, by definition, white men who owned property as well as, for many of them, slaves. The crucial component to our governmental structure being that every four years the citizenry would vote to elect a new President or vote to re-elect a current President and if there were a new President elected, the current President would accept the results of the election and would vacate the office voluntarily, they would give up power voluntarily, reflecting the will of the people.

But Joe’s question is, “What if that doesn’t happen?” What if a current President does not accept the will of the voters and does not give up power voluntarily? This circumstance certainly seems to be the case with President Donald J. Trump, who just lost his re-election bid to now President-Elect Joe Biden. President Trump is refusing to concede his loss, he is refusing to cooperate with or accept a peaceful transfer of power to his successor and is ordering his administration not to cooperate with the transition. By all indications he is unwilling to voluntarily give up the power of the Presidency.

These actions break with the honor system that has been in place through 44 Presidents over almost 250 years – an honor system to which every United States President before Trump has adhered. This is a fracturing of one of the most sacred principles of American democracy.

Our honor system requires faith in our laws and traditions, both by our citizenry and on the part of our leaders. One such tradition is a concession speech or acknowledgement. Mitt Romney conceded in 2012. John McCain conceded in 2008. John Kerry conceded in 2004, and on and on all the way back to the time of George Washington.

There also has to be faith in voting as well as in our elections and their outcomes after the ballots are cast and counted. None of these traditions are being honored at present. President Trump is actively calling these traditions into question, ignoring them and/or actively refuting them. None of this has ever happened before. These are all lines that have never been crossed before now. The effect is to cast doubt on our entire system of democracy, to further erode the trust of the citizenry in our government, and to open the door for those who already wish to question the legitimacy of a Joe Biden Presidency.

However, there is at least one safeguard in place to combat what is happening right now and to ensure a peaceful and orderly transition of power. It is found within the 20th Amendment to the Constitution of the United States, which governs the length of Presidential terms. Each four year term of President ends at noon on July 20th of the year following a Presidential election. As of noon on January 20, 2021 Donald J. Trump will no longer be President of the United States of America, regardless of whether he concedes or not. That date, as defined by the 20th Amendment marks the end of his first term as President.

In accordance with Article II, Section I of The U.S. Constitution, establishing the Electoral College and its governance of our selection of Presidents, having received a majority of votes in the Electoral College Joe Biden is now President-Elect and that same date and time, noon on January 20, 2021, marks the beginning of his first term as President of the United States of America.

Written by: Christopher B. Dolan and Jeremy M. Jessup

This week’s question comes from Mr. Martin from San Carlos who asks:
Q: A number of years ago my daughter passed away, and my wife and I were left to raise my grandson, because the child’s father has been out of the picture since birth. Recently, tragedy struck our family again and my grandson, who was a minor, was killed in an automobile accident, caused by another person. I have been trying to bring a wrongful death lawsuit but keep being told I cannot sue. Is this correct?

A: Dear Mr. Martin,

Firstly, I am sorry to read about your losses, my condolences to you and yours as you go through these difficult times. Dealing with the death of a loved one can be devastating. On top of that, there may be many medical costs, funeral costs, and other expenses when facing an unexpected passing of someone close. As for the right to bring a wrongful death suit by you and your wife, this is not as cut and dried as one would think.

Only certain individuals are allowed to bring a wrongful death claim after a negligence-related death in California. Formerly, only biological or adoptive parents could sue (“had standing”) in California for a son or daughter’s wrongful death. Under California Code of Civil Procedure Section 377.60, a cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:

The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, of, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents.
A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.

In fact, it was previously held that a person who was not a natural parent had no right to sue for an unadopted child’s wrongful death, even if an adoption process was in progress [Reynolds v. City of Los Angeles (1986) 176 Cal.App.3d 1044, 1052-1053 — “the Reynoldses were neither the natural parent(s) of Samuel nor did they ever conclude formal adoption proceedings.”]

Those person(s) who qualify under categories (a-c) of the California Code of Civil Procedure Section 377.60 can recover both economic and non-economic damages for their loss. These losses included, but are not limited to the following:

The loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support provided by decedent;
The loss of gifts or benefits that could have expected to receive;
Funeral and burial expenses; and
The reasonable value of household services that the child would have provided.

However, California Assembly Bill 2445, signed into law in September by Gov. Newsom, amends CCP 377.60 to now allow legal guardians to sue for wrongful death in appropriate circumstances. The new language of CCP 377.60 includes:

“[i]f the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.”

As before, a decedent’s surviving spouse, domestic partner, children, and children of any deceased child continue to have standing under the wrongful death statute.

The new law, which went into effect September 10, 2020 now allows legal guardians to pursue wrongful death cases on behalf of minors as if they were the parents, provided the parents are deceased. The law was introduced as an emergency measure to prevent the statute of limitations from running for a Moreno Valley couple who raised their nephew after his biological parents died.

In your case, it would appear that whether or not you and your wife have standing may come down to whether or not your grandson’s father is still around. Unfortunately, because the law is so new in this area, it is unknown if the courts will view a parent that has essentially abandoned their child, in the same light as a parent who is deceased.

Q: Samy: May other people help me vote?

A: Samy, great question. You can choose 1 or 2 people to help you in the voting booth, but not your employer or union official. You can ask an election worker to help you, but, they must not influence you; you can ask or bring a sign language interpreter to help or call the County Elections Office before the election to request an ASL interpreter. You can also take your service animal to the polling place and into the voting booth.

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Q: Madison: My mother was appointed a conservator several years ago, can she vote?

A: Excellent question Madison. The short answer is your mom vote unless a judge ruled that you are not allowed to vote. When your mother was first assessed for a conservatorship, the court made a decision about whether she can vote. There are lots of ways to find out if she is eligible to vote:

Check the order appointing a conservator (look at the form with the number GC 340).
There is a section that says whether or not she is allowed to vote.
If the box on the form is not checked, then your mom is eligible to vote once she registers, she can vote.
If the box on the form is checked, then the court said she cannot vote.
If you cannot find your form GC 340, you can ask your conservator, the case manager at your regional center or call your county elections office to ask if she is eligible.

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Q: Jillian: Can I vote if I will not be able to vote in person and it is more than a week before Election Day?

A: Jillian, thanks for asking. Anyone can request a Vote-by-Mail ballot at least 7-days before Election Day, October 27, 2020, by filling out and returning the postcard on the Sample Ballot/Voter Information Guide, or by calling your County Elections Office. A complete list of all Elections Offices by county is located at: https://www.sos.ca.gov/elections/voting-resources/county-elections-offices/

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Q: Marley: How can I vote if I did not request a Vote-by-Mail ballot in time, but I cannot leave my home or am hospitalized because of a medical emergency?

A: Marley, despite the best laid plans’ life happens. California has special procedures for a voter hospitalized or in a care facility or cannot leave their home due to a medical emergency. If you registered to vote at least 15 days before Election Day and are not able to vote in person because of a medical emergency and it is less than seven (7) days before Election Day (the deadline for requesting a Vote-by-Mail ballot), you can request and complete an emergency medical ballot.

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Q: Romulus: What is an Emergency Medical Ballot and how does it work?

A: Romulus, thanks for asking, for the six days prior to an election, a registered voter who is unable to vote in person at a polling place or vote center due to confinement in a hospital, another facility or at home because of a medical emergency can fill out a form to authorize someone to go to the Elections Office to pick up a ballot for them. You may have another person help you read and mark your ballot. Others may not mark your ballot for you unless you ask them to do so.

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Q: Remus: What is a late vote-by-mail ballot?

A: Remus, If a voter is not able to vote in person at the polls and does not have a vote-by-mail ballot, the voter may apply in writing for a late vote-by-mail ballot. This application must be provided in person to the county elections official by the voter or the voter’s representative. The late vote-by-mail ballot must be returned personally or through the voter’s representative. The following link is a California Late Vote-By-Mail Ballot Application.

https://elections.cdn.sos.ca.gov/vote-by-mail/pdf/late-vote-by-mail-application.pdf

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Q: Jeff: This is an extremely important election and I want to make sure my vote counts. I have a disability want to know what services are available for me before I show up to vote.

A: Jeff, thank you for your question. Set forth below are links to election information for accommodations such as American Sign Language (ASL), accessible polling places listed by county, county early voting and drop box locations, large print, audio ballots, curbside voting and more.