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October

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2022
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October

Taking Time Off to Vote is a Right in California

This week’s question comes from Laird in Oakland: I work in construction, and I am often at the worksite for 10-12 hours each day. I often don’t get off work until after 7 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?

Dear Laird,
Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave. 

California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. Specifically, the Elections Code states that,

“the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”

For you, if it appears that you will be at the job site for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.

Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work. 

Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy.  A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.

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Insurance Company WILL NOT PAY FOR MEDICAL EXPENSES. Here’s Why:

Written by Chris Dolan and Cristina Garcia

This week’s question comes from Patricia D. from the Mission District, who asks: I was riding my bicycle down 19th Street approaching Mission Street when a distracted driver traveling in the opposite direction struck me. He was apparently texting, driving, and traveling too fast on the roadway. When the vehicle struck me, I fell on my right side. As a result, I broke my right wrist and suffered a terrible road rash on my right elbow and shoulder area. The driver and I exchanged information before I was transported to the hospital. I recently received a call from the driver’s car insurance informing me that they would not pay for the damages to my bike or any of my medical expenses because I was at fault. Are they correct?

Dear Patricia,

Thank you for your question. Adult bicyclists have the same duties and responsibilities as motor vehicle drivers under the California Vehicle Code (“CVC”) 21200. CVC 21200 provides as follows:

“(a)(1) A person riding a bicycle or operating a pedicab upon a highway has all the rights and subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to provisions concerning driving under the influence of alcoholic beverages or drugs…”

Therefore, California laws treat bicyclists as motor vehicles that must abide by all traffic laws, which includes CVC section 21650, which provides that all cyclists must travel in the same direction as traffic. If bicyclists need to head in the opposite direction of traffic, they must walk with their bikes on the sidewalk.

For this reason, the driver’s vehicle insurance is likely denying your claim for property damage to your bicycle and personal injury claim. This denial does not completely bar you from recovering for your injuries if the other driver was also negligent. For example, suppose the police report or witnesses corroborate that the driver was speeding or texting while driving. In that case, counsel can argue that the driver’s negligent acts also caused the collision.

An issue that is likely to be raised is “Comparative Fault,” also called “Comparative Negligence.” Comparative Fault is the percentage of fault the court assigns to the injured party. California law states 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%. The driver’s insurance adjuster generally assigns this percentage if the case settles 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 collision due to someone’s negligence, you have the right to seek compensation for your economic and non-economic damages. Due to the complexity of Comparative Fault, cases involving Comparative Fault, you must 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.

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Public v Private Liability: Can I Sue A Government Entity?

Written By Chris Dolan

This week’s question comes from anonymous: My daughter tripped in the high school parking lot she walks through after softball practice.  It was already dark and there were no direct lights and she tumbled down a nearby ravine. Luckily, she only had some minor cuts and bruises, but I am worried that another kid will get seriously hurt. My friend got hurt in a shopping center parking lot. He sued and got a settlement. Can this be done if someone is hurt on the school grounds?  Is there anything that can be done to fix the lights, or put up a fence? 

Thank you for writing about the shared safety concerns of many parents. When a child goes to school there is an expectation that the school will have measures in place to keep all those attending the school safe. When there is a hazard such as the one you describe, it is an excellent idea to notify the school, in writing, of the problem. It may help the school make changes, and even if they don’t, it may help someone seriously injured seek justice. The reasons will become clear below.  

You mentioned your friend who was hurt in a private shopping center. This raises an important distinction in the law. There are many differences between suing a governmental entity compared to suing a private, or non-Government defendant. In general, government cases are more involved and require specialized knowledge. 

For instance, when suing a state-based governmental entity, such as a school, there is an initial requirement that a Government Claim be filed. That means that to successfully maintain a lawsuit, a person must have first explained the basis of the claim to the entity itself and given them an opportunity to respond. The time limit to file this claim is very short. In most instances the claim must be made within six months.  Generally, the claim will be denied, and then there is another 6 months to file a lawsuit.  For private entities, for this type of incident, the time to file a lawsuit is generally two years. That two-year statute of limitations is generally extended for a minor until they turn eighteen.  Unfortunately, that is not the case when suing a government. The requirement to file a timely Government Tort Claim is not, generally, extended beyond the 6 months.

The actual cause of action, the name of the basis for recovery, in a lawsuit is also different. The cause of action against a government entity is called “Dangerous Condition of Public Property,” where against a private entity, it is called “Premises Liability.” They have very similar elements which much be proven, but there are differences. Both require that the defendant own or control the property in question, and that the defect is a substantial factor in causing the harm. However, among other differences, where a public entity is concerned, it must have had to “know, or should have known” of the danger for a long enough time to have protected against it. Whereas a private business must “be negligent in the use or maintenance of the property.” In many cases, for a private business this can come down to making reasonable inspections to seek the danger and warn against it.  This is where your written complaint comes into play. If informed in writing of a defect, a public or private defendant is now on notice of the defect and can make changes, or repairs. If they do not, and someone is hurt, they now “know or should have known” or were negligent in not repairing it. 

Perhaps the biggest difference, and the most daunting to those unfamiliar, are the government immunities. Historically, people had no right to sue the government, an ancient concept called Sovereign Immunity. Over time, the government passed laws allowing lawsuits where someone is injured. However, they maintain many “immunities.” Immunities act like a get-out-of-jail-free card. If the government enjoys a particular immunity, they can force a lawsuit to be dismissed- thrown out. There are many, but the most often used is called “design immunity.” Where a government has considered a design, and it was approved at high enough levels, they are immune from lawsuits based on that design. It can be an infuriating impediment unless an attorney can show that it doesn’t apply, no longer applies, or that conditions have changed to the point it is no longer the same design. 

As you can see, this is a complex area of law with many hurdles and pitfalls. If you or someone you know is injured, make sure to speak to a knowledgeable attorney, such as The Dolan Law Firm. And write your letter explaining the dangers at your daughter’s school. 

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1.5 Million Verdict plus $500K in prevailing cost(s) in Raul Mejia-Lopez v. Jet Speed Plumbing, Inc., a California Corp., et al.

Chris Dolan and Aimee Kirby are pleased to announce a life changing verdict for the Mejia Lopez family. Mr. Lopez was struck from behind on Highway 91 in LA. He had a two-level foramina decompression by Dr. Kassimian. One week of MILS and Jury selection, followed by one week of Chris getting COVID, and one week of trial returned a 1.5 million verdict. Defense best, last, final, 600K. Policy limit demand of 1,000,000 by 998 was served over a year ago. With prevailing party costs and experts, it will top out at around 2 million.
Up and through today the Mejia Lopez family, husband, wife and three children, were all living in one room. Now they will be able to have a proper place to live, with extra room for their family. We must remember what may not seem to be the biggest victory for us is often the biggest, most important event for our clients, and it matters.
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Apartment Fires: Who is Responsible for Tenant Safety?

Written By Chris Dolan and Anna Pantsulaya

This week’s question comes from Jill in San Francisco, who asks: This year I saw an apartment building surrounded by firefighters and fire trucks. A fire started on a top floor, and from my viewpoint, they had already put out the flames. I thought about my living space and how I should prepare if a fire broke out in my building. I live in an apartment on the third floor. I have done some preparation since all this happened. What laws should I know for fire preparedness? Would the owners be responsible for all tenants if a fire occurred? 

Hello Jill,

Thank you for your questions. Many safety standards are set to protect tenants from the situation you described. Understanding your rights in those circumstances is important to ensure that, in the unfortunate event a fire does break out, you are fully informed, and all standards were met by those that could be held responsible. Nearly 4000 Americans die yearly in house fires, and over 2000 are severely injured.

What are the safety standards to keep in mind?

In August 2016, the San Francisco Board of Supervisors passed legislation (Ordinance 163-16) to promote fire and life safety, reduce the risk of fires, and prevent property damage. The requirements include having building owners:

  • Provide residential tenants with updated Tenant Fire Safety Disclosure Information on fire safety and smoke alarm requirements,
  • post smoke and CO alarm information in common areas of their buildings,
  • file and post a Statement of Compliance form for annual fire alarm testing, and
  • post the building manager’s contact information at the building entry.

A great resource to check out before moving into an apartment in San Francisco is sanfrancisco.buildingeye.com/fire. This database keeps track of:

  • Fire Permits from 01/01/1983
  • Fire Complaints and Violations from 01/01/2010
  • Fire Inspections from 01/01/2014
  • Statement of Compliance (for required Apartment Buildings with Fire Alarm Systems)
  • Additional data available from SF Department of Building Inspection and SF Planning Department.

How can you determine who is responsible when a fire starts in your apartment?

Causes of house fires vary. For example, faulty appliances or wiring cause the most significant number of house fires; heating devices, such as heaters, wood stoves, and fireplaces, are another leading cause; cigarettes are a further leading source of house fires. Determining what caused the fire is instrumental in determining who can be held liable.

The landlord, property owner, or manager has responsibility for a fire or accident resulting from dangerous conditions such as faulty wiring or failing to follow the standards outlined in the California Code of Regulations. However, suppose the tenant caused the hazardous condition that results in the fire, i.e., from a burning candle or leaving a cigarette unattended. In that case, there may not be legal liability as to the landlord, the property owner, or manager unless the landlord breached their duty to ensure there are properly working smoke alarms on the property. In many cases, tenants have been seriously injured because they were not adequately warned of a fire. Additionally, it is important to remember that some rental leases may attempt to limit liability for dangerous incidents such as fires. Therefore, it is essential that you carefully review any lease before signing.

What are some common signs that your landlord breached his or her duty of care as it relates to a poorly maintained electrical system?

Faulty wiring is not only one of the leading causes of fires in the United States but also one of the most common examples of landlord negligence. Although the landlord must have the local fire authority inspect all multifamily residential apartment buildings, in the state of California consisting of three or more units and up to 15, every so often landlords do not comply with this requirement. Most buildings in San Francisco were built well before 1990. Older properties frequently have not been updated to comply with current building codes. Some properties still have aluminum wiring, a known fire hazard. While others, may have outdated electrical systems that are unable to handle modern electrical appliances. Additionally, fire safety inspections only go so far as to inspect the common areas. Therefore, it is important to keep an eye out for things like – outlets that do not work, breaker boxes that flip often, blown fuses, mild electrical shocks, dimmed or flickering lights, outlets that work sporadically, power surges, burning smells, hot fixtures or switches, and soot around switches or outlets. Document all issues arising from faulty wiring and be sure to let your landlord know immediately if you notice anything out of the ordinary. 

Although the landlord has a “reasonable time” to abate those issues, often they will ignore complaints unless and until they are required to handle them. In San Francisco, you can report your complaints and concerns online using the following link: https://sf-fire.org/services/report-complaints-concerns. This complaint will ensure that you not only put the landlord on notice of the issue, but you also notified the appropriate agency that will come out on your behalf and advise your landlord of what steps are appropriate and required to take to abate the issue.

Proving landlord negligence cases are not always easy. A skilled attorney will investigate the fire and employ experts to help prove that your landlord breached a duty that was owed to you. A full investigation of the cause of the fire may reveal other issues that your landlord may bear responsibility for as it relates to the fire.

What damages can you claim if a fire breaks out in your apartment at no fault of your own?

Landlord insurance is a form of liability insurance that pays for claims caused by landlord negligence. Various damages can be claimed depending on the degree to which the landlord was negligent and whether the fire caused property damage and injury. While landlord insurance is not required by law, it may be required by the landlord’s home insurance provider. If a landlord has tenants occupying their property for at least 30 continuous days, most homeowners insurance companies will require them to carry landlord insurance instead of homeowners insurance. 

Typically, you can recover the cost to replace lost or damaged personal property, the cost to restore the personal property, relocation expenses, additional living expenses, general damages for mental anguish,  and in some instances, punitive damages. Punitive damages are used to set an example of the landlord when their conduct is beyond that of garden variety negligence which is why it is essential to document everything. 

In many instances, an apartment fire causes injury. Burn victims are entitled to compensation for their past and future medical expenses, past and future lost wages, and pain and suffering. In catastrophic burn injury cases, the assistance of a life care planner may be necessary to compensate you for long-term medical problems fully. In the case of wrongful death, loved ones may be able to receive compensation for the loss.

Suppose you have been injured and sustained damages because of a fire. In that case, the landlord may claim the fire is not their responsibility or push you to his insurance company to negotiate a quick settlement. If you have been the victim of an apartment fire, you deserve to speak with an experienced attorney dedicated to maximizing your recovery. An experienced burn injury attorney is particularly essential in the event of injury, as burns often lead to long-term physical and mental harm such as scarring and PTSD. 

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Who is responsible for a dog bite or dog attack?

Written By Chris Dolan and Carole Okolowicz

This week’s question come from Phill in the North Bay: I am avid hiker and enjoy being outdoors. Not sure if dogs are getting more popular in the last two years, but it appears that I see more people with dogs on the trail now. Some dogs are friendly looking. Some dogs are not so friendly looking, especially when they have the chrome prong leash and they are pulling hard on it. Can you tell me who is ultimately responsible for a dog bite or dog attack?  

Phill,

Thanks for your question. Dogs provide countless benefits to humans including companionship. But these domesticated animals can still lose control and bite or attack people. A vast majority of animal attacks in the US and California are inflicted by dog bites. The California Department of Public Health estimates there are over 5 million dog bites a year in the U.S. Children are more than twice as likely as adults to be the victim of a dog bite.

Animal attacks can be frightening and can result in serious physical and emotional injuries, including severe cuts, abrasions, puncture wounds, infection, lost eyes, permanent disfigurement, scarring and psychological trauma.

Under California law, dog and other animal owners are generally strictly liable for the injuries caused by their animal. Strict Liability means that a dog owner is liable for injuries and damages caused by their dog. The law covers anyone bitten by a dog in a public place or while lawfully in a private place, including the dog owner’s property. It does not matter whether the dog has any history of vicious behavior. If the dog bites someone, the owner is liable.

Under some circumstances, in addition to the owner of the dog, the owner of the property where the dog resides may also be responsible for your injuries, if different from the dog’s owner. If you were attacked on the owner’s property or if you know or believe that a dog escaped from an enclosed yard, for example, keep track of the property’s address.

There are some circumstances when an animal injures another party and the owners are not Strictly Liable. These cases generally involve animal attacks where there was no actual “bite.” For example, a dog may cause a collision or may chase a person riding a bike and cause them to crash. Many situations can occur where an owner has the responsibility to control their animal and they fail to do so. Under a general theory of negligence an owner or other person in control of an animal can be liable for the injuries caused by their animal.

If you have been bitten by a dog you are likely entitled to compensation for your injuries and other damages. In a civil lawsuit you can recover both economic and non-economic damages. In order to get compensation for your losses, you must demonstrate that dog bite or other animal attack caused your injuries and other damages.

Economic damages include the expenses related to any injuries caused by the animal attack. This includes:

  • Medical Expenses (past and future)
  • Lost Wages
  • Surgery
  • Wound Care
  • Lost Earning Potential
  • Physical Therapy

Non-economic damages can also include:

  • Psychological Distress / Trauma
  • Mental Anguish
  • Pain and Suffering

Contact an Animal Attack Lawyer or Dog Bite Lawyer

Following an attack or dog bite, you have the right to seek out legal help to obtain compensation. An experience attorney will help you determine what legal options you have and can assist you in obtaining compensation for your injuries.

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