Written By Christopher Dolan and Jeremy Jessup
This week’s question comes from D. Conger from San Bruno who asks: While traveling in Washington, I was involved in a motor vehicle collision that resulted in injuries. The funny thing is that I found out the person who struck my vehicle was from San Jose. I had initial treatment in Washington and more once I returned home. In addition, I have missed a substantial amount of time from work. I would like to seek compensation for this collision but don’t have the energy to try and find an attorney up there. Do I have to have an attorney from the state of Washington represent me?
I am sorry to read about your ordeal and wish you a speedy recovery. With the summer months upon us, research shows that summer travel is returning to pre-pandemic levels. The most recent data on summer travel suggests that it will be busy this year, as a recent survey from The Vacationer found that nearly 81 percent of Americans were planning to travel. According to Janeen Christoff of Travel Pulse, road trips remain one of the most popular forms of travel in a post-pandemic world. The nearly 80 percent of travelers who said they were going to take a road trip make up approximately 206 million Americans. Almost 20 percent will travel more than 500 miles from home by car. Also, nearly 7 percent say they will take road trips more than 1,000 miles from home.
With all those people on the road, collisions are bound to occur across state lines.
The simple answer to your question about whether you need local counsel, is that it depends. In most cases, while you live out of state, you may need to hire an attorney licensed in the state where the collision occurs to represent you. However, that is not always the case.
The correct venue (the county or district where a case must be heard) is one of two places. It is where the injury-causing event occurred, in this case, the motor vehicle collision, or where the defendant resides. If one were to elect where the defendant resides for your case, that would be Santa Clara County, here in California. In that case, you would not need to find an attorney up in the state of Washington. However, the important thing to remember is that in most cases, the laws of where the collision occurred would still apply; in this case, that would be the state of Washington. Some attorneys are comfortable dealing with the laws of other states, and some are not.
However, let’s assume that the defendant was a resident of the state of Washington. Again, local counsel would be required, but you could still hire someone from California. In that case, the attorney, if they agreed, could seek to get “pro hoc vice” (Latin for “on this occasion”) into the State of Washington. If the court grants the motion, the California attorney, with the supervision of the local attorney, would be granted a temporary license to practice in the state of Washington, but only on your case. In most instances, the California attorney you select will already know someone in the other state, which is why they agreed to accept the case. You would not need to try and find two attorneys.
With the advancement of technology and courts allowing for remote appearances, it is now as easy as ever for attorneys to represent clients in different states. For example, all attorneys at our firm are licensed in California. However, some are licensed in Oregon, Washington, Georgia, Arizona, Texas, and Massachusetts. We have handled all aspects of litigation in these states, including trials in some.
Finally, an attorney in California may hold licenses in other states, allowing them to practice in multiple jurisdictions. Essentially, this means that even though the attorney of your choice resides in one state, if they hold a license in another, they can freely practice there, as if they were local.
Remember, no matter who you choose to represent you, be sure to document everything, lost earnings, medical treatment, and symptoms, and provide them to your attorney. As a team you will work together to get the best result.
The Dolan Law Firm PC’s DE&I Committee is proud to support Pinay Powerhouse Conference 5 as a Platinum Sponsor and contribute to the Filipino Bar Association of Northern California’s Scholarship. Thank you to the Filipino Lawyers of Washington and the Pinay Powerhouse Collective for putting on an incredible conference in Seattle.
About Pinay Powerhouse
Pinay Powerhouse is a women’s collective focused on empowering Pinay attorneys, future attorneys, and legal professionals as leaders in the law. Pinay Powerhouse puts on programs and events to support its mission, including an annual conference that has been held in San Francisco, Los Angeles, Waikiki, and Seattle. The Dolan Law Firm is proud to have sponsored this conference every year since its inception.
What is Best Lawyers?Best Lawyers is the oldest and most respected peer-review publication company in the legal profession.
Their lists of outstanding lawyers are compiled by conducting exhaustive peer review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for a lawyer are positive enough for recognition by Best Lawyers, that lawyer must maintain those votes in subsequent polls to remain in each edition. Lawyers are not permitted to pay any fee to participate in or be recognized by Best Lawyers.
Written By Christopher B. Dolan and Taylor French
This week’s question comes from Anonymous who asks: I had a doctor’s appointment the other day, and there was an arbitration agreement in the intake paperwork packet. What is arbitration, and am I required to sign this agreement?
Dear Anonymous, thank you for your question. Arbitration is an out-of-court method of dispute resolution wherein a neutral decision-maker makes rulings of law and fact and ultimately decides the outcome of a particular case. In other words, arbitration is essentially a paid private trial. In recent years, it has become more common to see clauses in service contracts requiring that the parties participate in arbitration if a dispute arises because businesses view arbitration as a means to avoid costly and lengthy litigation. Arbitration is binding, meaning the decision made by the arbitrator cannot be appealed, with very few exceptions, which limits the time the dispute can continue. Arbitration keeps the details of the dispute out of the public record, which appeals to businesses who want to maintain a particular reputation within the community.
While arbitration is not inherently bad as a means of alternative dispute resolution, issues arise when attending arbitration is mandatory instead of voluntarily and mutually agreed upon by the parties. for several reasons, agreements in service contracts requiring that the parties attend arbitration are controversial. First and foremost, they strip individuals of an important constitutional right – the right to a trial by jury. Once signed, the consumer can no longer opt for a jury trial despite its likelihood of being more advantageous or impartial.
Signing an arbitration agreement may put the consumer at risk of having a disadvantage during arbitration because a supposedly impartial arbitrator chosen or proposed by the business may have a prior existing relationship with the company. Imagine a scenario in which an arbitrator has decided against a particular company in favor of the consumer. That company, which is likely to be engaged more often in disputes requiring a hired arbitrator, will likely not propose or consent to using that arbitrator in the future. If the arbitrator has ruled in favor of the company, the company will probably return with future business. This dynamic has the potential to influence the arbitrator’s decisions. Unfortunately, consumers often do not realize they are facing these risks when signing a contract containing an arbitration clause until a dispute arises, and it is too late.
The situation you describe in which a patient shows up to a doctor’s appointment and they immediately hand them a pile of paperwork to review, fill out, and sign is particularly problematic. As the patient frantically attempts to fill out all the forms with their medical history, contact information, and insurance information, they may quickly sign an arbitration agreement slipped into the pile of paperwork. They may not have a moment to consider and understand its implications properly. An arbitration clause could be as short as a single sentence, which could cause the patient to look over it in its entirety when skimming through various contracts. However, despite the pressured conditions under which parties sign arbitration agreements, they are often deemed enforceable, and patients are compelled to attend an arbitration..
Given the potential disadvantages that a consumer may face in an arbitration, it is always important to take a moment to thoroughly review and consider any agreement that includes an arbitration clause. If the above-described conditions are not those you are willing to face during an arbitration, perhaps consider taking your business elsewhere.
Written By Christopher B. Dolan
This week’s question comes from Steve, who asks: I’m originally from Southern California and now live in the Bay Area. I often visit family in Los Angeles and drive interstate 5 depending on traffic conditions, this drive can take me 7-8 hours. During my years of going and visiting my parents, I have seen several commercial truck accidents and have become concerned to the point where I try to stay far back or far ahead of any commercial truck. Some trucks can move rapidly into lanes, and I have seen some trucks swerve back and forth, almost causing a car crash. Are truck drivers specially trained? Is there a California hotline I can call to report bad truck drivers? What should I do if I am involved in a truck accident? Should I get a truck accident lawyer?
Hello Steve, thank you for your questions. You are right to feel concerned about driving around commercial trucks, and I encourage you to continue practicing the safe driving habits you describe. It is reasonable to feel the need to keep your distance from commercial trucks. In California, more than 3,000 truck accidents result in injuries every year, and approximately 300 Californians die annually in collisions with large trucks. The sheer weight and size of commercial trucks make them formidable figures on highways and the drivers in control of them should be held to a high standard to maintain safety on our roadways.
So, what are these safety standards?
The California Department of Motor Vehicles (DMV) and the US Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) regulate commercial trucks in California. FMCSA was established in 2000 with the primary mission of preventing commercial motor vehicle-related fatalities and injuries. The FMCA holds commercial drivers to a higher standard than ordinary drivers because of the risk of injury and death that comes with operating a large truck.
FMCSA requires any commercial truck driver to obtain a Commercial Drivers’ License (CDL) before they can operate commercial trucks on the road. To apply, CDL applicants must pass medical testing, vision testing, have their driving record checked, and complete 15 hours of behind the wheel training. To get a CDL, applicants must pass skills and knowledge tests geared to these higher standards. California DMV imposes additional requirements for applicants of a CDL in California.
How are truck drivers held accountable for failing to adhere to the higher safety standard?
It is vital for professionals and commercial truck drivers to be held accountable. Accountability occurs through the FMCSA and local authorities. Drivers with a CDL must adhere to the standards set forth by these regulators because failing to stick to these standards raises the risk of serious injury and death.
If you witness unsafe driving by a commercial vehicle, you can submit a complaint to the FMCSA Safety Violation Hotline (1-888-DOT-SAFT) (1-888-368-7238) from 5 am‒5 pm PST, Mon‒Fri. The FMCSA also has a portal for the public to report unsafe driving through the National Consumer Complaint Database. To file a complaint online, click here.
Or you can call the California Highway Patrol and file a report with them. Also, many commercial trucks will have a phone number or website on the back of their vehicle to file a complaint about their driving directly to their employer.
What should you do if you are in a truck accident?
The first thing you should do, if possible, is getting to a safe location off the road and away from moving traffic to prevent further injury. You should call 911 as soon as possible.
Make a report of what happened to the police. Collect the insurance information of the truck driver and other drivers involved.
Document everything at the scene of the accident. Take photos and video of the scene and any damages and injuries. Keep track of bills, costs, repairs, and medical costs. The more detailed your records are of costs, bills, repairs, etc., the better off you will be in obtaining compensation for those damages.
Avoid discussing the accident with others, including insurance adjusters. Some insurance companies may reach out to you and ask you for a statement. You do not have to speak with the insurance company, and it is best that you leave that up to an experienced truck accident lawyer who is aware of pitfalls and can advocate for your rights.
After getting in an accident with a large truck, who’s to blame may seem straightforward. But, several different parties can be liable for a truck accident, including a negligent truck driver, a trucking company, or even a manufacturer who produced faulty parts. One of the most critical steps in obtaining compensation is to thoroughly investigate the causes of the incident to identify all responsible parties and uncover evidence of their wrongdoing.
Once insurance companies identify the at-fault parties, the work of obtaining compensation begins. Despite what insurance companies may portray, truck accident victims’ damages can go far beyond just their medical bills. Compensation is determined from economic and non-economic damages depending on the circumstances of the injuries and how it impacts the victim(s). Trucking and insurance companies have enough money to compensate you for your injuries, but they also have a big budget to spend on legal representation so they will not have to.
When someone is seriously injured, or a loved one is killed in a truck crash it should not have to be an uphill battle to get the support needed to recover. Unfortunately, these large insurance and trucking companies have made the path to recovery a challenge. If you are ever in a truck accident, you should find a lawyer who knows how to negotiate with these companies and navigate you through the legal process to put you in the best position possible to have a healthy recovery.
Written By Christopher B. Dolan
James from Marin County asks: I just bought a house built in the 50’s. I have undertaken a significant amount of renovation both inside and outside. The home has a nice yard and a pool. The pool needs some work, and I am concerned because sections of the fence around the yard have fallen into despair. My neighbors have small kids and I want to be responsible and make the pool safe as I undertake the work. What guidelines do I have to make the pool safe?
Summer is upon us and each year it’s important to revisit safety laws and best practices in regard to residential swimming pools and spas. Drowning is California’s second leading cause of death for children aged 1-4 and even nonfatal drowning injuries can result in long-term disabilities from irreversible brain damage. Since most drownings in young children occur in home swimming pools, it is especially important that owners of residential pools take proper precautions to keep unaccompanied children out and, in case a child does enter a pool unaccompanied, to prevent injury by the suction of pool pumps and filters.
To this end, the state of California has long set very clear requirements for pool safety, embodied in the Swimming Pool Safety Act, California Health and Safety Code (CHSC) Sections 115921 through 115829. As of January 1, 2018, the state legislature has updated these requirements in the hopes of further reducing home pool drownings. This column will spell out the differences in the updated law so that residential pool owners have the latest and most complete safety information available.
As a preliminary matter, the Swimming Pool Safety Act applies only to in-ground and aboveground structures over 18 inches deep intended for swimming or recreational bathing situated on the property of a single family home. CHSC Section 115921 provides a non-exhaustive list of regulated structures, including swimming pools, portable and nonportable hot tubs and spas, and nonportable wading pools; for the purposes of this column, I will refer to all such structures as “pools.”
One significant impact of the new amendments to the Swimming Pool Safety Act is that it extends state pool safety requirements to single family homes in all municipalities, eliminating previous exclusions for homes within municipalities that issued their own, potentially conflicting, local swimming pool ordinances. Since the state now mandates all municipalities to participate, the amendments provide for state reimbursement of any resulting added costs incurred by local governments. It is important to note that this law still does not apply to public pools, pools at multifamily residences, or hot tubs equipped with compliant locking safety covers.
The main effect of the new amendments, however, is to double the required drowning prevention safety features needed to secure a permit to build or remodel a pool at a single family home. Since 1997, permits issued for pool construction have required residential pools to be equipped with at least one of seven drowning prevention safety features; on implementation of the new amendments, each pool construction must now include two of these enumerated safety mechanisms for extra protection in case one fails. As before, drowning prevention safety features must be inspected by a local building code official pursuant to final approval of the permitted pool construction, as well as building inspection reports conducted for real estate transfers. CHSC Section 115924 requires every pool construction contractor to inform consumers of the Act’s requirements.
CHSC Section 115922 provides an updated list of eligible drowning prevention safety features:
- a total pool enclosure isolating of the pool from the home;
- removable mesh fencing in conjunction with a self-closing, self-latching gate capable of being locked with a key;
- a manually or power-operated safety pool cover compliant with American Society for Testing and Materials (ASTM) Standard F1346-91;
- a continuous audible exit alarm on any door providing direct access to the pool;
- a self-closing, self-latching function with raised release mechanism on any door providing direct access to the pool;
- an alarm meeting ASTM Standard F2208 placed in the pool to sound upon accidental or unauthorized entrance into the water; or
- other protection independently verified to provide at least the same degree of protection.
Specifications for approved fencing and gates can still be found in Section 115923; critically, enclosures must be a minimum height of 60 inches, with no more than two inches between the bottom of the enclosure and the ground, no gaps that would permit passage of a sphere of four inches, and no outside surface with features that could serve as handholds or footholds for a child of 5 years old or less to climb over. Also preserved from previous iterations of the Swimming Pool Safety Act, Section 115928 continues to require every new or remodeled pool to have at least two hydraulically balanced suction outlets per recirculation pump secured with anti-entrapment grates and separated by at least three feet that prevent a child being sucked into a vacuum that would be caused by a single drain.
Following California’s comprehensive pool safety regulations is a vital step toward preventing hundreds of unnecessary deaths and disabilities caused by accidental drowning. Here’s to a safe and happy swimming season!
Pinay Powerhouse is back and Dolan Law Firm continues to be a proud sponsor! Our Senior Associate Attorney and DE&I Director Mari Bandoma Callado is a Pinay Powerhouse founder along with 4 other Filipina attorneys who all envisioned a women’s conference empowering more Filipina attorneys and aspiring attorneys as leaders in the law.
Here are some pictures of Dolan Law Firm supporting Pinay Powerhouse from the previous years:
PINAY POWERHOUSE I (photo credit: Jamie Juni)
PINAY POWERHOUSE II (photo credit: Jamie Juni)
PINAY POWERHOUSE III (photo credit: Philmund Lee)
PINAY POWERHOUSE IV
PINAY POWERHOUSE V
We are excited to return as a sponsor for the Los Angeles Trial Lawyers’ Charities (LATLC) Summer Soirée this Saturday August 13.
To register, click here
Here are some photos of our support from the previous years:
Written By Mari Bandoma Callado
August is National Breastfeeding Month (and includes World Breastfeeding Week – August 1 to 7). This month is dedicated to promoting advocacy and protection of breastfeeding to ensure that all families have the support they need and the opportunity to breastfeed.
With all the obstacles that breastfeeding parents who return to work have to overcome, it’s not surprising that while the American Association of Pediatrics recommends breastfeeding parents to exclusively nurse their infants for the first six months, with the continuation of breastfeeding for 1 year or longer as mutually desired by parent and infant, the California Department of Public Health reported that in 2016, 94% of mothers began breastfeeding but only 24.8% were exclusively breastfeeding at six months.
Lactation Accommodation in the Workplace
Under the California Labor Code, lactating employees in California are entitled to a reasonable amount of break time to express breastmilk – this includes time to pump, time to get and put away the pump, as well as time to travel to and from the employee’s workstation. If possible, the break must run concurrently with any break time already provided to the employee.
Employers may, but do not have to, pay employees for lactation breaks that take longer than regular paid break time. So if an employee usually receives a 10-minute paid break, and it takes the employee 20 minutes to pump, the employer does not need to pay the employee for the last ten minutes. However, reasonable travel time to and from the lactation space is not considered break time and should be paid.
The Labor Code also requires employers to provide adequate space to express milk in private (not a bathroom) that is in close proximity to the employee’s work area and be used only for lactation purposes while an employee expresses milk. It must also include a surface to place a breast pump and personal items, a place to sit, access to electricity, a sink with running water, and a refrigerator or cooler for storing breast milk. The space must also be clean and free of hazardous materials.
If you have questions bout your lactation accommodations in the workplace, or if you have questions about your employment rights, contact our employment attorneys.