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Daily Journal – Top 100 Lawyers in California – Chris Dolan

The Daily Journal selected Christopher B. Dolan to the 2022 list of Top 100 Lawyers in California

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from Anonymous who asks: I am thinking of getting a Motorcycle. What are the rules for operating motorcycles on the road here in California?

Dear Anonymous,

Thanks so much for your question. Since the pandemic, California roadways are seemingly returning to normal (i.e., traffic). Couple that with the end of remote learning and back-to-school, and ‘tis the season to be stuck in traffic. As motorcycles whiz by the rest of us trapped in bumper-to-bumper traffic, some see danger in the two-wheelers, while others see inspiration.

If you’re one of the inspired, Section 12500(b) of the California Vehicle Code requires a valid driver’s license or endorsement to drive a motorcycle. Section 12804.9(b)(4) specifies that the motorcycle driver’s license (Class “M1”) may be granted by endorsement on a class A, B, or C license upon completion of an appropriate examination.

Examination

As an initial matter, you must be 21 years of age to obtain an M1 license or endorsement in California. However, if you provide evidence of completing a “novice motorcycle safety training program,” the D.M.V. may make an exception. (Cal. Veh. Code § 12804.9(i)).

In all cases, an M1 license applicant must take an examination. The examination consists of a driver knowledge test, a motorcycle knowledge test, and a motorcycle skills test. All these tests must be passed before California issues the M1 license or endorsement. A “Certificate of Completion of Motorcycle Training” may help you avoid taking the motorcycle skills test, but the knowledge tests will still be required. (Cal. Veh. Code § 12804.9(g)).

Insurance

The same financial responsibility laws that apply to motor vehicles apply to motorcycles. California requires insurance to operate a motor vehicle on the roadways. Currently, the law requires a minimum of $15,000 for injury/death to one person, $30,000 for injury/death to more than one person, and $5,000 for property damage. (Cal. Veh. Code § 16020, et seq.) Failure to provide evidence of financial responsibility can result in a fine of up to $750.

Is Lane Splitting Legal in California?

YES. Lane Splitting is LEGAL in California. Section 21658.1(a) of the Vehicle Code defines lane splitting as

“driving a motorcycle…that has two wheels in contact with the ground, between rows of stopped or moving vehicles in the same lane, including on both divided and undivided streets, roads, or highways.”

Under subsection (b), the California Highway Patrol developed educational guidelines relating to lane splitting in a manner that would ensure the safety of motorcyclists and the drivers and passengers of the surrounding vehicles. To wit, the CHP has created several guidelines, lane splitting tips for motorcyclists, and guidelines for other vehicles.

Some of the key guidelines for motorcyclists include:

The danger increases as overall speed increases.
It is typically safer to split between the far-left lanes than between the other lanes of traffic.
Riding on the shoulder is ILLEGAL; it is not considered lane splitting.

Some of the key messages for drivers of other vehicles include:

Lane splitting by motorcyclists is legal in California.
Drivers in the far-left lane should move to the left of their lane to give motorcyclists ample room to pass.
Intentionally blocking or impeding a motorcyclist in a way that could cause harm to the rider is illegal.

Helmets

All drivers AND passengers on motorcycles must wear a safety helmet that meets specific requirements established in the vehicle code. It is illegal to operate or ride as a passenger on a motorcycle (including a motor-driven cycle). Cal. Veh. Code § 27803.

The helmet MUST meet Federal Motor Vehicle Safety Standard No. 218 (codified under 49 C.F.R. Sec. 574.218). This means that the helmet must be approved by the U.S. Department of Transportation. This standard lays out specific design elements related to helmets worn to protect the user from injury. The federal standard lays out threshold expectations that must be tested using particular means and parameters to ensure uniform testing methods. Moreover, section 27802 of the Vehicle Code specifies that it is illegal to sell or use motorcycle helmets that do not meet these requirements.

Many attempts to repeal California’s helmet laws or limit them have failed. California stands steadfast in its commitment to motorcycle driver and passenger safety. As a potential rider, so should you.

For more information, guidelines, and tips, please consult the California Highway Patrol’s Website at: https://www.chp.ca.gov/programs-services/programs/california-motorcyclist-safety

Written By Christopher Dolan and Nancy Villatoro

This week’s question comes from Anonymous who asks: Can I change attorneys at any time? What are things I should consider when doing so?

Dear Anonymous:

Thank you for your question. You have the right to discharge your attorney at any time and for any reason. In certain circumstances, your first-choice attorney may not be the best fit for you and your type of claim. You may realize that you can pursue a claim on your own or that another attorney better fits your needs. Here are some things to consider as you make your decision.

Generally, if you have signed a contingency agreement, changing attorneys does not cost you more money. When hiring a personal injury attorney, you have presumably signed a contingency agreement under California law, (Cal. Bus. & Prof. Code § 6147; Fletcher v. Davis (2004), 33 Cal. 4th 61, 71.) This agreement states that your lawyer gets one-third of your verdict or settlement if any. You will reimburse your attorney for any costs incurred. When you change lawyers, your new lawyer and your old one will share this fee. The total amount you pay for attorney fees will likely remain the same depending on your new agreement. The attorney will split the fees according to how much work was done on your claim. Additionally, changing lawyers may be in the best interest of your claim. You may find an attorney that will work harder for you and has more resources may get you a better outcome. When making the change, by law, your old attorney is required to provide you and/or your new attorney with all your records.

In other less desirable circumstances, an attorney may elect to decline or terminate their legal representation. In California, the Rules of Professional Responsibility, Rule 1.16 lists the circumstances where an attorney may withdraw from representing a client. Withdrawal most commonly occurs when:

“the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;”
“the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation; or
“the client knowingly and freely assents to the termination of the representation” (this one is most likely to have less contention.)

Number one and two above generally may occur after the attorney and the client have irreparable differences, the client has become unreasonably difficult, or the client refuses to cooperate during the litigation.

An attorney that is either discharged or withdraws prematurely can prevent the former client from “settling around” their lien by filing a notice of lien in the pending action. (Valenta v. Regents of University of California (1991) 231 Cal. App. 3d 1465, 1469–1470.) However, to enforce the contractual lien, the attorney will have to seek an independent action against the former client to establish the lien’s existence, determine the amount of the lien, and enforce the lien. (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1173. 2002.)

If an attorney is discharged or withdraws “on the courthouse steps” and substantial representation has occurred, the court will consider this to determine the reasonable value of the attorney’s services. The court may justifiably find that the entire fee was the reasonable value of the attorney’s services. (Hood vs. Gonzalez (2019) 43 Cal.App.5th 57, citing Fracasse vs. Brent, (1972) 6 Cal.3d 784; See also Oliver v. Campbell (1954) 43 Cal.2d 298.)

Under a contingency fee agreement, when an attorney withdraws from representation based on “justifiable cause,” he or she is entitled to recover in quantum meruit. (See Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656; See also Estate of Falco (1987) 188 Cal.App.3d 1004.) Under quantum meruit the law implies a promise to pay for services not gratuitously rendered. (See Long v. Rumsey (1938) 12 Cal. 2d 334.) “The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant [former client].” (Palmer vs. Greg (167) 65 Cal. 2d 657, 660.) A quantum meruit recovery requires a trial court to consider several factors:

“‘[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney’s efforts, the attorney’s skill, and learning, including his [or her] age and experience in the particular type of work demanded.” (See Mardirossian & Associates, Inc. v. Ersoff, (2007) 153 Cal.App.4th, 257, 272.)

The underlying idea behind quantum meruit is the laws distaste for unjust enrichment. If one has received a benefit which one may not justly retain, one should restore the wronged party to his or her former position by either returning the “thing or its equivalent in money.” (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, Section 91, p. 122.)

Although changing your attorney may seem simple, do your research before retaining an attorney and seek a second opinion when needed. In some circumstances, clear communication can be your best solution.

Written By Christopher Dolan

This week’s question comes from Becky M. in SoMa who asks: When I was dropping my daughter off at elementary school last week, I drove up the street next to the school. It’s a narrow road with one lane in each direction. I was waiting in line for curbside drop-off when a yellow school bus stopped in front of us and turned on its red flashing lights. I stopped behind the bus and waited, even though I could have passed the bus in the lane for oncoming traffic. All the other cars behind me started honking and passing the bus on the left side. I was in a rush to drop off my daughter, but I waited for the lights to stop flashing before I went ahead and dropped her off. I thought I was supposed to wait behind the bus, but no one else was waiting, did the law change?

Thank you for your question, Becky.

The law has not changed. You did the right thing by stopping for the bus and remaining stopped until the bus turned its flashing lights off. California Vehicle Code section 22454(a) requires:

“[t]he driver of any vehicle, upon meeting or overtaking, from either direction, any school bus equipped with signs as required in this code, that is stopped for the purpose of loading or unloading any schoolchildren and displays a flashing red light signal … visible from the front or rear, shall bring the vehicle to a stop immediately before passing the school bus and shall not proceed past the school bus until the flashing red light signal … cease[s] operation.”

Simply put, this means that when the bus stops and flashes its red lights, located at the top front and back of the bus, you must bring your car to a stop, even if you are traveling in the direction opposite the bus. You must stop with enough clearance to allow for children to safety cross the street in front of the bus. You also must stay stopped until the bus turns off its red flashing lights, even if you do not see any children crossing the street. While it might seem inconvenient to stop and stay stopped for such a long time, this is an important, life-saving rule. When the bus is stopped with its red lights flashing, it means that children are either getting on or off the bus and are likely to be crossing the street. Because the bus is large and the children are small, your view of the children crossing may be obstructed.

The consequences for breaking this law can be astronomical — your careless decision could take away a precious, young life. Even if you are lucky enough not to harm a child while passing a stopped bus with flashers activated, your selfish act can earn you a $1,000 fine and a 1-year license suspension.

With school back in session for Fall, it is a good time to remind ourselves to slow down, be patient, and drive safely. Here are a few good rules of thumb to help keep school children safe:

School Zone Speed Limits: Drivers should always observe reduced school speed limits, typically 25 mph or even as low as 15 mph. Watch out for school crossing guards and follow their instructions.
Watch for Pedestrians and Bicycles: Drivers should be extra vigilant in keeping an eye out for children walking, biking, or scootering to school. Young children riding bikes or scooters can be unsteady, unpredictable, and are often inexperienced.
No Distractions: Keep your eyes on the road rather than on your phone or any other device. Taking your eyes off the road for just two seconds means that you may not see a child crossing in front of your car.
Talk to your Child: Teach your child to be safety-conscious. Remind your child to keep a proper lookout for cars in the roadway, be alert while crossing the street, and make sure that drivers see you/acknowledge your crossing. Also, remind your child to be aware of cars entering driveways or backing up.

If you were injured in an accident caused by a careless driver, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages include things like pain and suffering, physical impairment and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

August 2022

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?

Dear D.,

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.

Congratulations to the lawyers at Dolan Law Firm, PC for being selected in the 29^th edition of The Best Lawyers in America® and the third edition of Best Lawyers: Ones to Watch in America™. This year’s results were determined using more than 12.2 million confidential evaluations by top attorneys. It is exclusively these attorneys who selected this year’s honorees, which makes recognition in Best Lawyers a true reflection of talent in the industry. Ones to Watch adopts this same peer-review methodology.

What is Best Lawyers?

Best Lawyers is the oldest and most respected peer-review publication company in the legal profession.

Recognition by Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by their peers. For more than four decades, their publications have earned the respect of the profession, the media and the public as the most reliable, unbiased source of legal referrals anywhere.

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.

Again, we congratulate our selectees for being recognized and striving to get to the point where they are today.

***

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.