California Recall: How Do I Review My Ballot And Why Is It So Confusing?

Written by Christopher B. Dolan and Kimberly Levy

This week’s question comes from Matty G. in San Francisco: I got my recall ballot in the mail today. It is a little confusing. To start with, it’s asking me two questions. Do I answer the second question even if I vote “no” on the recall? Also, there are more than 40 candidates. Is there a minimum percentage of votes that the winner would need if Newsom were recalled? How did we end up here?   

Thank you for your important questions, Matty.

Recall Vote Background:

On September 14, 2021, California voters will decide whether Governor Gavin Newsom should be recalled (removed) from office, and if he is removed, who should replace him. Forty-six candidates, including nine Democrats and 24 Republicans are vying to replace Governor Newsom.  

Orrin Heatlie, a retired Patrol Sergeant, is the man behind this, and multiple previous recall campaigns, against Newsom. According to his twitter page, he began his efforts to remove Newsom from office in August 2019, months before Coronavirus hit. The efforts didn’t really pick up steam until Newsom’s French Laundry dinner—a year and some months later. As the story goes, Newsom attended a dinner party with a dozen friends at a luxurious restaurant in the wine country. It didn’t help that this party was a few weeks before he announced sweeping stay-at-home orders in mid-November 2020.  

This perceived hypocrisy was used to anger voters. How dare Newsom prohibit others from doing that he himself did not refrain from doing? It didn’t matter if Newsom and his dinner guests were seated outside and complied with state guidelines at the time.

Recall supporters used this momentum against Newsom to gather sufficient signatures necessary to trigger the recall election.  

Logistics of the Recall Election: Understanding the ballot

The recall ballot asks two questions:

  1. Shall GAVIN NEWSOM be recalled (removed) from the office of Governor?
  2. If GAVIN NEWSOM is recalled from office, who shall replace him?

Voters are not required to vote on both questions. Instead, a voter may vote on either one or both parts of the recall ballot. 

It is important to note that a voter may vote “no” to the question of recalling Governor Newsom from office and also select a replacement candidate.

If one-half or more of the votes on the recall question are “no,” Governor Newsom will remain in office. If a majority of the votes are in favor of recalling Governor Newsom, he will be removed and replaced with the candidate that received the most votes, even if proportionally, that candidate received a smaller percentage of the vote than those who voted for Newsom to remain in office. For example, 49.9% of California voters could vote to keep Newsom in office (essentially a “Newsom for Governor” vote), but he would be removed as he did not earn a majority; he could then be replaced with a candidate earning only slightly more than 3% of the California popular vote.   

After the Election

If a majority of voters vote “yes” on the recall, Governor Newsom will be removed from office. After the election, county elections officials have 30 days to complete the official canvass. The election would be certified on the 38th day following the election. The new governor would take the oath of office for the remainder of Newsom’s term, though January 2, 2023.

If half of voters vote “no” on the recall, California will carry on with Newsom as Governor.

If Governor Newsom is Recalled, His Successor May Be Elected with Slightly More Than 3% of the Vote. Is this unconstitutional?:

As has been mentioned, although the recall effort must win more than 50% of the vote to succeed, the successor candidate simply needs to do better than all of the other 45 candidates. Newsom may be removed despite 49% of Californians desiring him to stay. His replacement may be elected with as little as 3% of the vote. This implies that 95-97% of voting Californians disapprove of the candidate selected under this scenario and applies unequal weight to votes.

This inequality could be resolved by simply allowing voters to vote for Newsom to replace himself should the recall vote succeed. Currently, this solution is prohibited by California Elections Code. However, a lawsuit seeking to stop the recall election or to add Governor Newsom’s name to the ballot as his own replacement has been filed in Federal Court. The suit argues that the election, as is, violates the equal protection clause of the Constitution because it allows a sitting governor to be unseated by a candidate who received fewer votes. 

Preserving and Restoring Voting Rights Must Become a Priority:

No matter the outcome of this lawsuit and the recall election, US citizens must recognize the importance of preserving the rights of all voters, regardless of political affiliation. Since 2011, 22 laws passed in 14 states that restrict voting. Within the last year, more than 389 bills introduced have been 48 states that include broad restrictions, and nothing is being done to counteract these laws and ensure access of all eligible voters. Although laws can restrict voting and at times make ballots confusing change starts with awareness, research and action. Make your voice count and vote.   

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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Celebrating Women’s Equality Day

By Mari Bandoma Callado, Senior Associate Attorney and Director, DE&I

Women’s Equality Day commemorates the August 26, 1920 certification of the 19th Amendment to the U.S. Constitution that gave women the right to vote. This historic event marks an important shift in American constitutional rights and gender equality even though it wouldn’t be until 1965 that the Voting Rights Act would provide suffrage for all American women regardless of race.

The struggle for Women’s Suffrage was only the first step toward equality for women. Even though women have made great strides towards equity, women’s fight for equal rights continues. The gender pay gap continues to impact women’s economic power. Gender discrimination and sexual harassment are still prevalent in the workplace. Women, especially women of color, are negatively and disproportionately impacted by the COVID-19 pandemic.

The Dolan Law Firm is committed to fighting for equal rights and justice for all. Contact us if you believe you have been discriminated against, sexually-harassed, or denied your rights at work.  

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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California Tenants Are Still Protected from Evictions through September 30

Written By Christopher B. Dolan and Katelyn P. Dembowski

Gina from San Francisco asks: What is going to happen now that Congress failed to extend the eviction moratorium? What is California doing to protect tenants during this time? 

Dear Gina: These are really pressing questions. On September 4, 2020, the Centers for Disease Control and Prevention imposed a nationwide temporary federal moratorium on residential evictions for the nonpayment of rent. Legislatures in California had done this on a state level a few days prior, protecting California residents from eviction during the COVID-19 pandemic. The CDC federal eviction moratorium was set to expire on July 31, 2021. Congress failed to extend it, leaving millions of Americans vulnerable to evictions starting as early as August 1. 

Ultimately, House Democrats did not have the votes they needed to extend the moratorium, and Congress adjourned for a seven-week recess (they are expected to be back September 20).  The Biden administration is unable to extend the moratorium through executive action, citing a recent court ruling for their lack of power. The Supreme Court held, in a case by landlords against the federal government, that the CDC’s eviction moratorium was beyond their scope of authority as a federal agency. Unfortunately, the end of the eviction moratorium will leave roughly 3.6 million people in the U.S. on the brink of eviction in the next two months, according to the U.S. Census Bureau’s Household Pulse Survey. 

On June 28, 2021, California Governor Gavin Newsom signed AB 832 to extend the state’s eviction moratorium through September 30, 2021. This is the third, and likely final, time he has extended the eviction moratorium in California. 

In addition to extending the moratorium, the legislation cleared rent debt for low-income Californians who have suffered hardships during the pandemic. AB 832 will also cover 100% of past-due and prospective rent payments, as well as utility bills, for income-qualified tenants from April 2020 through September 2021.

Here’s how to protect yourself as the eviction moratorium comes to an end: 

  1. If your landlord gives you a notice to “pay or quit,” you cannot be evicted if you return a Declaration of COVID-19 Related Financial Distress. You must return the declaration to your landlord within 15 business days of receiving the notice to “pay or quit.” If you do not provide the signed declaration within 15 business days, an eviction proceeding may be filed against you. If you are unable to provide the declaration to your landlord within 15 business days, you may still submit the declaration to the court, provided you have “good reasons” for not providing it within the 15 days. This includes, but is not limited to, mistakes, inadvertence, surprise, or excusable neglect under the California Code of Civil Procedure. 
  2. Under AB 832, to be eligible for cleared rent debt, tenants must earn 80% or less of the area median income, which varies for each county within the state. To put that into perspective, San Francisco’s median income in 2019 was $96,265. You would need to earn $77,012 or less to qualify for the additional assistance through AB 832. 
  3. If you make more than the median income and are ineligible for rent debt clearance, you are still protected from eviction if you pay at least 25% of what you owe your landlord by September 30, 2021.
  4. If your household income is more than 130% of the median household income in your county or more than $100,000, your landlord may demand proof of your COVID-19 related hardships be provided to support your declaration. This could be satisfied by tax returns, pay stubs, statements from your employer, etc. 
  5. Until October 1, 2021, a landlord can only evict a tenant if they provide a legally valid reason. For example, you may still be evicted during the moratorium if you break your lease agreement, do something illegal on the property, or the landlord must do necessary renovations. The moratorium is only for past-due rent payments.

The extension of the eviction moratorium in California should give tenants some breathing room as the pandemic goes on. The surge in the COVID-19 Delta variant could potentially be as bad as when the pandemic started. While these are the guidelines in place right now, changes are happening every week, day, and hour, as we have seen throughout the pandemic. Stay safe and keep informed as we continue to navigate this pandemic together. 

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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Loss Of Consortium: Compensating Spouse and Family of the Injured

Written By: Christopher Dolan and Megan Irish

Alejandro C. from Sunset writes: A good friend of mine’s wife got into a really bad car crash, where she broke her leg and got a concussion. The accident was not her fault, she was hit by a drunk driver who ran a red light. It has been almost two years, and she is still not back to normal. She walks with a limp, and she is forgetful and cranky with him and their children. My friend also told me he and his wife have only been intimate a handful of times since the cast was taken off her leg. He is at his wits end and I do not know what to tell him, nor how to be supportive of him through all this. Do you have any advice?

Dear Alejandro: I’m so sorry your friend’s family is going through these horrible injuries, but it is wonderful that you are there for him and want to be as supportive as possible. First, your friend’s spouse, we can call her Jane, has a claim for her personal injuries. She can, within two years, make a claim for her medical bills and lost wages in addition to her pain and suffering against the driver who hit her. Now your friend, we can call him John, has a claim for his loss of consortium against the driver who hurt his spouse. The California Civil Code allows John to make a claim, assuming:

  1. his marriage was valid and lawful at the time of Jane’s injuries,
  2. his spouse suffered a tortious injury,
  3. he suffered a loss of consortium, and 
  4. his loss was proximately caused by the tort defendant’s act. John’s loss of consortium claim will be valued based on his loss of his spouse’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support; as well as the loss of the enjoyment of sexual relations and/or the ability to have children.
    (In this context “loss” can also mean a change to, or diminished amount of the attributes listed above)

John’s claim would be for both the past loss of these elements in his relationship with his spouse, as well as what he is reasonably certain to suffer in the future. Because of the changes you have mentioned in their relationship, a loss of consortium claim appears reasonable for John to make. In deciding to make this type of claim they would both have to evaluate the loss and make a joint decision if they want to discuss the changes in their relationship with attorneys and potentially a jury. It can be very private and sometimes, despite the validity of the claim, couples elect not to proceed with it. Alternative forces that change the relationship and/or pre-existing issues, if any, would need to be openly discussed with counsel to make a more complete recommendation in proceeding with a loss of consortium claim before any litigation is commenced. It is also important to note, that despite the similarities of the companionship, care, comfort, society etcetera in the relationship between parents and children, a loss of consortium claim is only available to married spouses. Jane and John’s children would not be able to make a claim for the changes in their relationship with their mother because of her injuries. 

Now, separate and apart from the legal claims Jane and John may elect to bring, there are many additional resources you can help your friend locate. Throughout the state, and nationally there are numerous support groups for both traumatic brain injury patients and their families. First, your friend can check with his health insurance coverage. The insurance provider’s website may direct him to support groups, literature, or individualized help. John can also look to the county level, as most counties have resources for injured persons. To demonstrate the breadth of options, San Francisco General Hospital as well as many private local hospitals run a Traumatic Brain Injury support group that meets weekly/monthly. The Brain Injury Association of California educates and provide many resources for survivors, caretakers, family, friends and others. As well, the National Alliance of Mental Illness has many resources for brain injury survivors and their families. Many of these resources are available now, despite the pandemic, through video conferencing.

Your friend should evaluate the options and figure out with his spouse, which if any of these groups, organizations and resources may aid them, as this decision is an individual one to be made by your friend and his spouse based on their families’ needs.  

As a friend it is wonderful you are there to support him, listen and help when he needs it. We are very sorry for the loss your friend’s family is enduring, and wish him the best in locating resources that will help his family forge their way forward.

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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Is Anyone To Blame If Customers Drink Too Much?

Written By Christopher Dolan and Taylor French

Debra M. from Daly City writes:
I have often noticed people serving alcohol to individuals who had too much to drink. Are there certain laws that can hold people accountable for providing alcohol to people who are clearly intoxicated and should probably stop drinking? 

Dear Debra: As the COVID-19 era’s restrictions ease and we gradually return to our lives outside of the home, it is important to be mindful of the threat posed by intoxicated drivers on the road. Too often, tragedy strikes, and an innocent person is injured or killed by a driver who was overserved at their local bar, restaurant, or other social gathering. When this happens, the question of whom can be held civilly liable presents itself. 

Unfortunately for victims and their families, California law prohibits holding someone civilly liable for having overserved alcohol to an adult, which subsequently led to an injury or death. This is commonly referred to as Dram Shop Immunity, in the case of commercial vendors, such as bars, liquor stores, restaurants, etc.; or Social Host Immunity if involving a private individual. While overserving alcohol to an adult may result in an arrest and misdemeanor conviction, punishable by less than one year in jail, the individual or business cannot be liable for the monetary harms and damages suffered as a result of the adult’s actions.

Why does California law prohibit civil liability under these circumstances? Because, according to the Legislature and established case law, “the consumption of alcoholic beverages rather than the serving of alcoholic beverages is the proximate cause of injuries inflicted on others by an intoxicated person.” In other words, the drinker not the pourer is the responsible party.

However, Dram Shop Immunity and Social Host Immunity do not necessarily apply in the case of serving alcohol to a minor. If a business overserves a minor who was “obviously intoxicated,” which led to an injury or death, it can face civil liability for damages suffered as a result. Pursuant to Business and Professions Code section 25602.1,

“a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, … who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage … to any obviously intoxicated minor where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.”

For the purposes of section 25602.1, the term “minor” refers to an individual under the age of 21. 

A supplier of alcohol must use reasonable care to ensure the patron receiving the alcoholic beverage is not an obviously intoxicated minor. It is not enough for the supplier to simply know that the minor had been drinking. The minor must actually appear drunk. The courts consider many factors to determine whether the minor was “obviously intoxicated” when served the alcohol. These include whether the minor had alcohol on his or her breath, incoherent or slurred speech, poor muscular coordination, a staggering or unsteady walk or loss of balance, a flushed face, bloodshot or glassy eyes, an unkempt appearance, or loud, boisterous, or argumentative conduct. The determination is made by “a reasonable person having normal powers of observation.”

In the case of a “social host,” Civil Code section 1714 provides for civil claims

“against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case, … the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.”

In other words, the minor need not be obviously intoxicated for the social host to face liability. The social host only needs to have known, or should have known, that the minor was indeed under 21.   

California law provides for this exception involving minors for number of reasons:

  1. Minors generally have less experience as it relates to both drinking and driving compared to adults and therefore require further safeguards
  2. It is foreseeable that serving alcohol to an intoxicated minor will result in his or her increased or continued inebriation, which may result in damages, whereas it is not necessarily foreseeable in the case of an adult. 

Regardless of potential liability, it is important that we stay vigilant, as drunk drivers will inevitably be out on the road. Equally important, however, is that we are proactive in preventing ourselves and others from driving after having too much to drink. Always arrange for a designated driver, taxi, or rideshare service for yourself and your friends. Remember, nothing is worth getting behind the wheel after drinking too much.  

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Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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Black Women’s Equal Pay Day

By Mari Bandoma Callado, Dolan Law Firm Senior Associate Attorney and Director, Diversity, Equity and Inclusion.

Black Women’s Equal Pay Day is August 3 because it takes an additional 214 days for Black women to catch up to what white, non-Hispanic men made in 12 months.  

Black women are typically paid only 63 cents for every dollar paid to white men. The pay discrimination can follow someone from job to job and actually compounds over time. According to the National Women’s Law Center, the wage gap adds up to a typical loss of $24,110 a year and nearly $1 million over a 40-year career. 

In California, several laws and regulations attempt to bridge the pay gap such as California Equal Pay Act (Labor Code section 1197.5) which prohibits an employer from paying its employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially-similar work.In addition, employers are prohibited from using prior salary to justify any sex-, race-, or ethnicity-based pay difference. Additionally, Labor Code Section 432.3, prohibits employers from asking job applicants about their salary history information, including compensation and benefits. 

If you believe that you are being treated differently because of your race and/or gender, contact the Dolan Law Firm’s team of employment attorneys.

 

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